SHARMA, J. - (1.) BABU Lal, Bhaga Ram and Durga Prasad, the appellants herein, along with seven other co-accused were tried before the learned Additional Sessions Judge No. 1 Sikar in Sessions Case No. 14/1999. Learned Judge vide judgment dated May 14, 2001 while acquitting co-accused persons, convicted and sentenced the appellants as under: - Durga Prasad: U/s. 448 IPC: To suffer rigorous imprisonment for six months. U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer two months simple imprisonment. BABU Lal and Bhaga Ram: U/s. 448 IPC: Each to suffer rigorous imprisonment for six months. U/s. 302/34 IPC: Each to suffer imprisonment for life and fine of Rs. 5000/- , in default to further suffer two months simple imprisonment. Substantive sentences were directed to run concurrently. Finding of acquittal of seven co-accused persons has been assailed by the State of Rajasthan in appeal No. 674/2001, whereas the appellants have challenged their conviction and sentence in appeal No. 366/2001.
(2.) THE prosecution case as unfolded during trial is that on January 18, 1999 at 2. 45 PM the informant Banwari Lal (Pw. 2) submitted a written report (Ex. P-2) at Police Station Ranoli to the effect that on the said day around 7-8 AM while his father Mangu Ram was sitting at Kirana-shop along with Bodu Ram, Dhukal Ram, Babu Lal and Phool Chand, the accused Durga Ram, Bhaga Ram, Pokhar, Ashok, Babu Lal, Prahlad, Dala Ram, Gopal, Prabhu Ram, Chandra Ram, Mohan, Bhola Ram, Kalu Ram and 5-6 women armed with Pharsi. Sword, Axe and Lathis came and attacked on them as a result of which Mangu Ram, Babu Lal, Dhukal Ram, Bodu Ram and Phool Chand received injuries. Believing Mangu Ram dead the accused persons fled away. On that report a case was registered and investigation commenced and after usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 1 Sikar. Charges under sections 147, 148, 452, 323, 307 and 302/149 IPC were framed against the accused, who denied the charges and claimed trial. THE prosecution in support of its case examined as may as 26 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have given our anxious consideration to the rival submissions and with the assistance of the learned counsel we have gone through the evidence on record. Death of deceased Mangu Ram was indisputably homicidal in nature. As per postmortem report (Ex. P-54) he received following ante mortem injuries: - 1. Stitched wound 10cm long places obliquely on Lt. fronto parietal region with reddish dry clotted blood. 2. Stitched wound 4cm long on Lt. parietal region laterally and vertically places adjacent to Lt. side of injury No. 1 with dry reddish clotted blood. 3. Stitched wound 5 1/2 cm long on forehead horizontally placed with dry reddish clotted blood. 4. L. eye black eye and clotted blood present over nostrils and L. ear. 5. Bruise reddish 21cm long horizontally places on back of chest L. 1/2 part. 6. Lacerated wound 1 1/2 x 1/4 x Md. on L. elbow with dry reddish clotted blood obliquely placed. 7.Two abrasions 1/4 x 1/4 cm in size place on the dorsum of L. hand with dry reddish clotted blood. In the opinion of Dr. M. L. Kanwat (Pw. 26) the cause of death was coma as a result of injury to skull and brain with cumulative effect of other injuries and the injury No. 1 was sufficient to cause death in the ordinary course of nature. Babu Lal (Pw. 9) vide injury report (Ex. P-53) received following injuries: - 1. Bruise 1/2 x 1/2cm left elbow 2. Bruise 2 x 1/2cm left lower forearm 3. Abrasion 1/2 x 1/2 left infra clavicular region Bhagu Ram vide injury report (Ex. P-37) received following injuries: - 1. Lacerated wound 6cm x 1cm x 1/2cm at scalp left parietal region 2. Lacerated wound 3cm x 1cm x 1/2cm at forehead 3. Lacerated wound 4cm x 1cm x 1/2cm at left forearm upper 1/3 4. Bruise 20cm x 2cm at chest posteriorly & laterally. Dhukal Ram (PW. 6) vide injury report (Ex. P38) received following injuries: - 1. Lacerated wound 2cm x 1cm x 1/2cm at left arm lower part near elbow posteriorly. 2. Lacerated wound 3cm x 1cm x 1/2cm at scalp occipital region 3. Lacerated wound 1cm x 1/2cm x 1/2cm at right eye brow Bodu Ram (Pw. 12) vide injury report (Ex. P-39) received following injuries: - 1. Lacerated wound 3cm x 1cm x 1/2cm at scalp occipital region left side. 2. Lacerated wound 2cm x 1cm x 1/2cm at scalp left parietal region 3. Abrasion with swelling 3cm x 2cm x 1/2cm at scalp right parietal region. 4. Abrasion 1cm x 1cm at middle finger of right hand. At this juncture the injuries received by the accused persons may also be noticed. As per injury report (Ex. D-11) appellant Babu Lal received following injuries:- 1. Lacerated wound 3 x 1/2 x 1/2 cm Right side parietal head 2. Lacerated wound 1 x 1/2 x 1/2 right side temporal region The injuries sustained by appellant Bhaga Ram vide Injury report (Ex. D-12) are as under: - 1. Swelling 2 x 2cm right temporal region 2. Bruise 1 x 1cm right scapular region 3. Abrasion 1 x 1cm left shoulder 4. Abrasion 1/2 x 1/2cm left hand index finger. Appellant Durga Prasad received one abrasion 1 x 1cm at right scapular region as per injury report (Ex. D-13 ). Having closely scrutinised the material on record following salient features of the case came to our notice: - (i) As per the evidence of Dhukal Ram (Pw. 6), Babu Lal (Pw. 9) and Bodu Ram (Pw. 12) fatal injury on the head of deceased has been attributed to appellant Durga Prasad; (ii) Cross case in regard to same incident was registered against the complainant party on the basis of written report (Ex. D-10) of Durga Prasad, under sections 147, 323, 336 and 447 IPC. (iii) Appellant Babu Lal received Lacerated wounds on right parietal and temporal region. Appellant Bhaga Ram sustained as many as four injuries including injury on temporal region and Appellant Durga Prasad received one abrasion on right scapular region. These injuries were not explained by the prosecution witnesses. (iv) Learned trial judge in para 24 of the impugned judgment categorically observed that there is no evidence on record to establish the existence of unlawful assembly. (v) The incident appears to have occurred on a trifle issue all of sudden without any premeditation. The cause behind the incident was that cows had entered the field and the complainant party and the accused party fought freely and it was a pitched battle.
(3.) IT is well settled that to bring home charge of common intention, prosecution has to establish by evidence, whether direct or circumstantial that there was plan or meeting of mind of all accused. In the instant case as already noticed, the incident occurred on a spur of moment without any premeditation, therefore Section 34 IPC could not be invoked. The prosecution is also not able to establish the charge under Section 448 IPC beyond reasonable doubt. In regard to guilt of appellant Durga Prasad, we find that he assaulted deceased on head but confined to only one blow and did not repeat it. Durga Prasad himself sustained injury and he did not take undue advantage of the situation. Thus Exception 4 to Section 300 IPC is attracted and offence of Durga Prasad fall under section 304 Part I IPC. We have heard the submissions of learned Public Prosecutor in Criminal Appeal No. 674/2001. We are of the view that in the case of free fight application of Section 149 IPC is excluded. In our opinion the co-accused have rightly been acquitted. For these reasons, we dispose of the instant appeals in the following terms:- (i) We dismiss the appeal No. 674/2001 preferred by the State of Rajasthan. (ii) We allow the appeal No. 366/2001 of appellants Babu Lal and Bhaga Ram and acquit them of the charges under sections 448 and 302/34 IPC. Appellants Babu Lal and Bhaga Ram are on bail, they need not surrender and their bail bonds stand discharged. (iii) We partly allow the appeal No. 366/2001 of appellant Durga Prasad and instead of section 302 IPC, we convict him under section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/-, in default to further suffer six months rigorous imprisonment. We however acquit him of the charge under section 448 IPC. (iv) The impugned judgment of learned trial Judge stands modified as indicated above. _ . ;