SHARMA, J. - (1.) THE appellants, four in number, along with four other co-accused were put to trial before the learned Additional Sessions Judge (Fast Track) No. 2 Jhalawar, who vide judgment dated February 10, 2003 convicted and sentenced the appellants as under:- Ram Singh, Vikram Singh, Dhara Singh and Meharban Singh: u/s. 302/34 IPC: Each to suffer imprisonment for life and fine Rs. 2000, in default to further suffer two months rigorous imprisonment. u/s. 307/34 IPC : Each to suffer rigorous imprisonment for seven years and fine Rs. 1000, in default to further suffer one month rigorous imprisonment. u/s. 326/34 IPC: Each to suffer rigorous imprisonment for five year and fine Rs. 1000, in default to further suffer one month rigorous imprisonment. u/s. 325/34 IPC: Each to suffer rigorous imprisonment for three years and fine Rs. 500, in default to further suffer fifteen days rigorous imprisonment. u/s. 324/34 IPC: Each to suffer rigorous imprisonment for one year and fine Rs. 500, in default to further suffer fifteen days rigorous imprisonment. u/s. 323/34 IPC: Each to suffer rigorous imprisonment for three months and fine Rs. 250, in default to further suffer ten days rigorous imprisonment. Substantive sentences were ordered to run concurrently. THE other four accused however were ordered to be acquitted.
(2.) AS per the prosecution story parcha bayan (Ex. P. 1) of Durga Singh who was admitted in hospital Pidawa was recorded on October 27, 2000, wherein he stated that on the day of Diwali around 3 PM when he after arranging fodder for cows in the Nohra of Ratan Lal, was gong in the company of Darbar Singh, Karan Singh and Lal Singh to the house, Ram Singh, Vikram Singh S/o Parbat Singh, Dhara Singh, Dinesh Singh, Jujhar Singh, Bhagwan Singh, Meharban and Vikram Singh S/o Nathu Singh armed with knife, sword and lathis belaboured them and started beating them. Vikram Singh caused knife injuries on the right hand of Durga Singh and Dhara Singh caused injury with sword on his back. Vikram Singh also caused knife injuries on head and stomach of Sardar Singh. Vikram Singh also caused knife injuries on stomach of Darbar Singh. Hearing hue and cry Gokul Singh (since deceased), Tanwar Singh and Mangi Lal came over there and intervened. Dhara Singh inflicted sword blow on the palm of Tanwar Singh. Meharban Singh caused injuries with lathi on left hand, head and back of Mangi Lal. Dhara Singh gave sword blow on the head of Gokul Singh, Vikram Singh inflicted knife injury on his wrist of left hand. When Gokul Singh fell down Vikram Singh inflicted knife injury, Ram Singh gave blow with iron rod on his head and Dinesh & Jujhar Singh gave lathi blows due to which Gokul Singh died on the spot. On the aforesaid parcha bayan a case under Sections 302, 147 148, 149, 307 and 323 IPC was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Jhalawar. Charges under Sections 147, 148, 323, 324, 325, 326, 307 and 302 read with 149 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 22 witnesses. In the explanation under Section 313 Cr. P. C. , the appellants claimed innocence. Appellants stated that the complainant party under the influence of intoxication attacked on them and caused injuries for that incident Ram Singh lodged the report against complainant party and cross case was registered. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have heard the learned counsel for the parties and scanned the material on record. Indisputably the death of Gokul Singh is homicidal in nature. As per post mortem report (Ex. P. 60) he received following injuries:- 1. Incised would with regular margins 4 x 1/2 x bone deep at right parietal region of scalp, fracture of right parietal bone of scalp. 2. Incised wound with regular margins, 5 x 1/6 x 1/10 cm at the right parietal region of scalp, 3. Incised wound 2 1/2 x 1/6 x 1/8 cm at the back of left side of chest. 4. Two incised wound 1/8 x 1/10 at the front of little and middle finger of left hand. 5. Red abrasion 5 x 1/6 at the front of left side of chest. In the opinion of Dr. Vivek Goyal (PW. 22) the cause of death was excessive haemorrhage due to multiple injuries. The members of the complainant party viz. Bhim Singh, Sardar Singh, Tanwar Singh, Lal Singh, Darbar Singh, Mangi Lal, Karan Singh, Durga Singh, Nagu Singh and Jagannath also received injuries in the incident. At this juncture it may be noticed that on the basis of parcha bayan of appellant Ram Singh the FIR No. 158/2000 was registered at Police Station Pidawa on October 27, 2000 against Karan Singh, Durga Singh, Sardar Singh, Tanwar Singh, Mangi Lal, Lal Singh and Gokul Singh (members of the complainant party) with the allegations that on that day they attacked on the members of accused party with lethal weapons and caused grievous and simple injuries. On the basis of parcha bayan, case under Sections 147, 148, 149, 323 and 307 IPC was registered, investigation commenced and charge sheet was filed.
(3.) WE deem it appropriate to narrate the injuries sustained by the accused persons in the incident. Accused appellant Ram Singh vide injury report (Ex. D. 11) received following injuries:- 1. Lacerated wound 1" x 1/4" x 1/4" Rt. Occipital part of skull. 2. Lacerated wound 1 1/2" x 1/2" x 1/4" left occipital part of skull. 3. Abrasion 1 1/2 x 1/4" x 1/2" post aspect of Rt. Shoulder. Accused appellant Dhara Singh s/o Parwat Singh vide injury report (Ex. D. 12) sustained following injuries:- 1. two lacerated wound 1 1/2" x 1/2" x 1/4" and 1" x 1/2" x 1/4" left parietal part of head 2. Lacerated wound 3" x 1/4" x 1/4" middle of parietal part of head. Vide X-ray report (Ex. D. 13) he sustained fracture of left parietal part of skull. Injury report (Ex. D. 14) of accused appellant Vikram Singh reads as under: 1. Lacerated wound 1/2" x 1/4" skip deep middle of parietal part head. 2. Abrasion with swelling 1/2" x 1/4" Lt. wrist. 3. Bruise 3" x 1" Rt. Forearm Having scrutinised the FIRs of the instant case and that of the cross case and the testimony of prosecution witnesses viz. Bhim Singh (PW. 16), Sardar Singh (PW. 3), Tanwar Singh (PW. 18), Lal Singh (PW. 15), Darbar Singh (PW. 6) Durga Singh (PW. 1) and Karan Singh (PW. 17), we find that mutual conflict developed and there is no reliable and acceptable version to establish with certainty as to how the incident originated and at whose instance. The case appears to be of a free fight. The complainant party and the accused party both fought freely in front of the house of accused party. The injuries sustained by the members of the accused party have not been explained by the prosecution witnesses. Considering all these circumstances, we find ourselves unable to hold that the accused party was the aggressor, though undoubtedly the prosecution witnesses sustained quite a large number of injuries. On the other side in the cross FIR registered on the basis of statement of accused Ram Singh, it was stated that members of complainant party were aggressors and they gave beating to the members of accused party. The origin and genesis of the occurrence appears to have been withheld by both the parties. Since accused were not the aggressors and it was a free fight each individual was responsible for his own acts as was held in Vishvas Aba Kurane vs. State of Maharastra (AIR 1978 SC 414) that in a free fight no right of private defence is available to either party and each individual is responsible for his own acts. The question that still remains to be answered is whether it is possible to affirm conclusion as to which injury was caused by which accused. Undeniably there is no reliable evidence on the record to hold as to what exactly transpired at the time of incident and who acted as the aggressor and who dealt the first blow. We find that right from the beginning the prosecution witnesses have given a distorted version of the incident. The fact that the eye witnesses, examined on behalf of the prosecution are injured persons, assures their presence on the scene of occurrence, but that does not necessarily mean that they have given a true version. In order to adjudge as to who was responsible for the fatal injury when we look at the testimony of Dr. Vivek Goyal (PW. 22), who performed autopsy on the dead body, we notice that death of Gokul Singh was caused as a result of excessive hemorrhage due to multiple injuries. The injuries which proved to be fatal were not attributed to any one of the appellants. Dr. Vivek Goyal did not say that the injuries cumulatively were sufficient in the ordinary course of nature to cause death. As already noticed the deceased Gokul Singh was intervenor and from the prosecution evidence it could not be established that the accused attacked the deceased with the intention to cause death nor did they intend to cause such bodily injuries as they knew them to be likely to cause death or to cause such bodily injuries which were sufficient to cause death in the ordinary course of nature. In Ram Kishan vs. State of Rajasthan 1998 Cr. L. J. 54 (SC ). The Apex Court observed thus:- " It is quite obvious that the intention of the appellant could only have been to cause injuries to the deceased by obstructing his bullock cart and they did not share any common intention to cause the death of deceased. Indeed by causing injuries with an axe it could be said that the appellants should have realised that the injuries were likely to cause death but that would only bring the case under Section 304 Part II IPC. " ;