SHIV KUMAR SHARMA, J. - (1.) THE seventeen appellants before us, alongwith three other co-accused, were tried before the learned Additional Sessions Judge (Fast Track) Alwar in Sessions cases No. 57/2001 (13/000) (14/1999 ). Learned Judge vide judgment dated October 5, 2002 found the appellants guilty and convicted them as under:- 1. Shiv Lal, 2. Amar Singh, 3. Ramjeewan @ Seli @ Ramsahay, 4. Surjan, 5. Girraj, 6. Shri Ram, 7. Jai Narayan, 8. Jagga @ Jagdish, 9. Arjan, 10. Sitya @ Sita, 11. Sohan Lal, 12. Ratan Lal, 13. Krishna Lal, 14. Roop Narayan, 15. Sunder Lal, 16. Kishan and 17. Pappu: U/s. 148 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment. U/s. 323 IPC: Each to suffer rigorous imprisonment for one year. U/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 2000/- , in default to further suffer six months rigorous imprisonment. Roop Narayan, Jagga @ Jagdish, Arjan and Sitya @ Sita: U/s. 324 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment. Shiv Lal, Amar Singh, Ramjeewan @ Seli @ Ramsahay, Surjan, Girraj, Shri Ram, Jai Narayan, Sohan Lal, Ratan Lal, Krishna Lal, Sunder Lal, Kishan and Pappu: U/s. 324/149 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment. Sohan Lal: U/s. 326 IPC: To suffer rigorous imprisonment for seven years and fine of Rs. 1500/-, in default to further suffer three months rigorous imprisonment. Roop Narayan, Jagga @ Jagdish, Arjan and Sitya @ Sita Shiv Lal, Amar Singh, Ramjeewan @ Seli @ Ramsahay, Surjan, Girraj, Shri Ram, Jai Narayan, Ratan Lal, Krishna Lal, Sunder Lal, Kishan and Pappu: U/s. 326/149 IPC: Each to suffer rigorous imprisonment for seven years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment. Girraj: U/s. 325 IPC: To suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment. Roop Narayan, Jagga @ Jagdish, Arjan and Sitya @ Sita Shiv Lal, Amar Singh, Ramjeewan @ Seli @ Ramsahay, Surjan, Sohan Lal, Shri Ram, Jai Narayan, Ratan Lal, Krishna Lal, Sunder Lal, Kishan and Pappu: U/s. 325/149 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs. 500/-, in default to further suffer three months rigorous imprisonment. Shiv Lal and Roop Narayan: U/s. 3/25 Arms Act: Each to suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment. Substantive sentences were directed to run concurrently.
(2.) THE prosecution story is woven like thus: On December 9, 1998 informant Mukhram (PW. 2) submitted a report (Ex. P. 1) at Police Station Sadar Alwar alleging therein that the informant and his family members came to Alwar in a tractor for some work and at around 4. 30 PM while they were returning back they were surrounded by 15-20 persons near village Gangodi, out of them they had identified some persons who were named in the report. Roop Narayan, Shiv Lal, Sunder Lal and Pappu, who were armed with Guns, opened fire that hit his father Har Lal (deceased) as a result of which he fell down, thereafter Ramjeewan, Amar Singh, Surjan, Arjan and Krishan inflicted Pharsi blows on Har Lal, who died on the spot. THEreafter Jagdish gave blow with Pharsi on Sumrata, Sohan made assault with lathi and spear on Mangal, Kishan gave lathi blow on the hand of Radhey while Shri Ram, Jain Narayan and Giriraj made assault on Pappu and informant Mukhram, Ratan and Sitya had also made assault. On that report a case under sections 147, 148, 149, 323, 341, 307 and 302 IPC was registered and investigation commenced. Dead body was subjected to post mortem, statements of witnesses were recorded, the accused was arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. IN course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Alwar. Charges under Sections 302, 302/149, 147, 148, 323, 324, 307, 326/149, 325/149, 324/149 IPC and Section 3/25 Arms Act were framed against the appellants, who denied the charge and claimed trial. THE prosecution in support of its case examined as many as 25 witnesses. In the explanation under Sec. 313 Cr. PC. , the appellants claimed innocence and stated that they were falsely implicated. Shivlal, Sitya @ Sita Ram, Jairam, Leela, Surjan and Musya stated that while they were going back to their village from Alwar they were beaten up by complainant party with lathies and Pharsis, for which Shiv Lal lodged the report against the members of the complainant party. No witness in defence was however examined. Learned trial Judge on hearing final submissions acquitted co-accused Musya, Jai Ram and Leela Ram, but convicted and sentenced the appellants as indicated herein above. We have given earnest consideration to the rival submissions and scanned the record in the light of the criticism levelled by the learned counsel. Death of deceased Har Lal was indisputably homicidal in nature. As per postmortem report (Ex. P. 83) he received following ante mortem injuries:- 1. Lacerated wound on Rt. side occipital region 1" x 1/4" x M. deep with bleeding. 2. Bruise mid fore head 3" x 1". 3. Lacerated wound left side parietal region 1" x 1/4" x M. deep. 4. Lacerated wound left side occipital region 1/2" x 1/4" x M. deep. 5. Extensive bruise on left shoulder post 3" x 3". 6. Extensive bruise on left elbow 3" x 3". 7. Extensive abrasion left wrist and hand. 8. Extensive bruise on Rt. shoulder post 2" x 2 1/2". 9. Extensive abrasion Rt. arm 3" x 1". 10. Extensive abrasion Rt. hand post 2" x 1". 11.Extensive abrasion Rt. side chest near nipple 2 1/2" x 2". 12. Incised wound Rt. lower leg 3" x 1/2" with broken bones exposing ant. 13.Incised wound 1/2" x 1/4" two in number near to injury No. 12. 14.Lacerated wound on left leg 1-1/2" x 1/2" in the middle. In the opinion of Dr. Raj Kumar Mishra (PW. 21) the cause of death was hemorrhage and shock as a result of fracture of skull and long bones. Summrat (PW. 6) vide injury report (Ex. P. 75) received following injuries:- 1. Incised wound left arm from shoulder to lower end arm 8" x 2-1/2" x muscle deep. 2. Lacerated wound Rt. pinna 1/3cm x 1/3cm. 3. Incised wound Rt. side temporal region 1/2 x 1/6 x M. deep. Mangal Ram (PW. 9) vide injury report (Ex. P. 76) received one incised wound Rt. leg in the middle 1/2" x 1/4" x M. deep Vide X-ray report (Ex. P. 77) he sustained fractures of upper 1/3rd shaft of tibia and fibula. Pappu (PW. 7) vide injury report (Ex. P. 78) received following injuries:- 1. Abrasion Rt. lower leg 1/2" x 1/2" 2. Abrasion left lower leg 1" x 1/2" 3. Abrasion left forearm 2" x 1/2" 4. Abrasion left lower arm 1/2" x 1/2" 5. Abrasion left side mexilla 1" x 1" 6. In duration left side mandible. 7. In duration with bruise left upper side with loose of 2 soket bleedy. 8. In duration lower lip left side with lose of 2 teeth with soket bleedy. Radhey Shyam (PW. 8) vide injury report (Ex. P. 79)received following injuries:- 1. Lacerated wound left side forehead 3/4" x 3/4". 2. Super ficial lacerated wound 1" x 1/2" Rt. lower arm cut. Roop Ram (PW. 5) vide injury report (Ex. P. 80) received following injuries:- 1. Abrasion left upper leg two in number 1/2 cm x 1/2 cm 2. Lacerated wound left side frontal region 3/4" x 1/4" with in duration left lat. side skull. 3. Incised wound upper part mid scapular region 3" x 1/4" x muscle deep. 4. Scattered wound left hand 1" x 1/4". Timman (PW. 1) vide injury report (Ex. P. 81) received following injuries:- 1. Incised wound on Rt. shoulder superficial on skin part 3" x 1/4", 1" x 1/4" 2. Abrasion on Rt. Scapular region 1-1/2 x 1/4". 3. Superficial lacerated wound with abrasion 3/4" x 1/2" mid forehead. 4. Scattered small gun shot wounds Rt. lower leg, with ankle and foot in duration and clotted wound (1/3 cm x 1/3cm each) 5. Bruise Rt. index 1/2" x 1/4" Vide X-ray report (Ex. P. 82) no bony injury was found At this juncture is may also be noticed that appellant Shiv Lal instituted FIR No. 356/98 at Police Station Sadar Alwar on December 12, 1998 at 11. 30 PM against the members of complainant party viz. Har Lal, Doli, Roop Ram, Kalya, Jagga, Ramdayal, Pappu, Timman, Sumrat, Mangal, Lala, Kishan Lal, Radhey, Shibbu, Bhajni, Sohan and Mukha to the effect that on December 9, 1998 around 4. 30 - 5. 00 PM while he (Shivlal) Musa, Surjan Jai Ram, Sri Ram, Sita Ram and Girraj were returning to their village Doba after meeting Prahlad they were belaboured near village Gangodi by the aforesaid assailants, who were armed with Guns, Pharsis and Lathis. Timman inflicted blows with Pharsi and Kala, Roopa, Lala and Pappu inflicted lathi blows on Shiv Lal, Musa, Surjan, Jai Ram, Sri Ram, Sita Ram and Girraj were also given beating with lathis and pharsis. Musa was admitted to hospital. These assailants prevented him from lodging the report. On that report a case under Sections 147, 148, 149 and 323 IPC was registered and after investigation filed the charge sheet No. 233/98 under Sections 147, 148, 149, 323, 324 and 325 IPC against the members of complainant party viz. Mukhram, Roopram, Gyarsya, Timman, Lalaram, Mangal Ram, Sumrat, Pappu, Radhey Shyam and Kishan Lal. The injuries sustained by accused party were as under:- Accused Musa Ram vide injury report (Ex. D. 11a) received following injuries:- 1. Abrasion Rt. lat side parietal region 1" x 1/4" 2. Abrasion occipital region 3/4" x 1/2" 3. Abrasion left lat. side 3/4" x 1/2" parietal region 4. In duration Rt. leg in the middle 1" x 1" 5. Abrasion Rt. lower ankle lat. 1" x 1" Accused Shiv Lal vide injury report (Ex. D. 15a) received following injuries:- 1. Bruise bleeding 3 x 6 cm Rt. hand 2. Bruise bleeding 7 x 6 cm Rt. elbow 3. Incised wound Rt. side parietal 4 x 2cm skull with hard scab of blood. 4. Abrasion 6 x 2cm Rt. Forearm. Vide X-ray report (Ex. D. 12a) no body injury was found. Accused Surjan vide injury report (Ex. D. 17a) received following injuries:- 1. Bruise with lacerated wound 4 x 3, 2 x 3cm bleeding hard scab with diffuse swelling. 2. Bruise 6 x 4 cm bleeding. 3. Two abrasion 1/2 x 1/2 Rt. Elbow joint. 4. Abrasion 4 x 2cm Rt. side abdomen. Vide X-ray Report (Ex. D.-13a) fracture of nasal bone was found. Accused Jai Ram vide injury report (Ex. D. 16a) received following injuries:- 1. Incised wound 3 x 1 x 1/2 lt. side parietal occipital Hard scab in heavy pyse skull 2. Four scatter abrasion 3 x 1/4, 1 x 1/4 cm 3. dry. lt. knee Accused Leela Ram vide injury report (Ex. D. 18a) received one lacerated wound 3 x 1 x 1/2 cm on left leg with soft scab. Accused Sita Ram vide injury report (Ex. D. 19a) received one abrasion 10 x 8 cm on Rt. wrist with diffuse swelling. Supporting the contents of the FIR informant Mukh Ram (PW. 2) deposed that while he along with his family members, were returning back to their village in a tractor they were surrounded by the appellants. Roop Narayan, Shiv Lal, Sunder Lal and Pappu, who had Guns, opened fire. Roop Narayan's fire hit at the right foot of Timman. Ram Jeevan and Arjan gave blows with Pharsi on the head of his father Har Lal, whereas Krishna gave blow with Pharsi on the right hand of Har Lal and Surjan and Arjan inflicted pharsi blows on the feet of Har Lal. Sunder Lal and Roop Narayan gave blows with blunt side of the gun on the head of Har Lal. When he (Mukhram) made attempt to rescue his father, Ratan gave lathi blow on his right palm and Leela inflicted blow with lathi on his right thigh. Timman (PW. 1) deposed that the appellants, who were hiding behind the bushes, surrounded them and Roop Narayan then opened fire that hit on his right foot. Jagga then gave pharsi-blow on his right shoulder. Arjan inflicted pharsi-blow on his another shoulder. Ramjeewan and Arjan gave pharsi blows on the head of Har Lal. Amar Singh and Surjan caused injuries with pharsi on Har Lal's feet. Sunder Lal and Roop Narayan caused injuries on the head of Har Lal with blunt side of the guns. Kishan gave injuries on the right hand and ribs of Har Lal. The assailants came in a tractor which was driven by Jai Narayan. Statement of Mukh Ram and Timman gets corroboration from the testimony of Sumrat (PW. 6), Mangal Ram (PW. 9), Pappu (PW. 7), Radhey Shyam (PW. 8) and Roop Ram (PW. 5 ).
(3.) HAVING scrutinised the FIRs of the instant case and of the cross case, we find that mutual conflict developed and there is no reliable and acceptable evidence as to how it had ensured and at whose instance. The case appears to be of a free fight. The place of the incident was a narrow path on which pebbles were lying. The complainant party and the accused party both were sitting in tractors. Considering all these circumstances, we do not think it possible to say with certainty that the accused party was the aggressor, though undoubtedly the prosecution witnesses sustained quite a large number of injuries. As already noticed in the FIR the informant Mukh Ram stated that Roop Narayan, Shiv Lal, Sunder and Pappu opened fire at Har Lal, but no gun shot injury was found on the body of Har Lal. On the other side in the cross FIR lodged by Shiv Lal 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. Thus no case either under section 147 or 148 IPC can be said to have been made out against the appellants and the conviction of none of the appellants is sustainable with the aid of Section 149 IPC. 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. As already noticed according to FIR Roop Narayan, Shiv Lal, Sunder and Pappu had guns and they opened fire that hit Har Lal, but as per post mortem report (Ex. P. 83) no gun shot injury was found on the dead body of Har Lal. We find that right from the beginning the prosecution witnesses have given a distorted version of the incident. The fact that they 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. Raj Kumar Mishra (PW. 21), who performed autopsy on the dead body, we notice that death of Har Lal was caused as a result of hemorrhage and shock de to fracture of skull and leg bones. Lacerated wound on right side of occipital region (Injury No. 1) and lacerated wound on left side of occipital region (Injury No. 4) were found sufficient to cause death in the ordinary course of nature. Incised wound on right lower leg (Injury No. 12) and lacerated wound on left leg (Injury No. 14) also made contribution in causing death. As per ocular testimony however the injuries on head and legs were jointly attributed to appellants Ramjeewan, Amar Singh, Krishna, Arjan, Surjan, Sunder Lal and Roop Narayan, but the prosecution witnesses could not satisfactorily answer as to which individual caused the fatal injuries. The fractures on head and legs which proved to be fatal were not attributed to any one of the appellants. In a similar situation the Apex Court in Amrik Singh vs. State of Punjab (1993 Cr. L. J. 2857) indicated that where the injury which proved to be fatal was not attributed to any one of the accused, the accused who inflicted one injury on the head of the deceased was not responsible for other fatal injury. In that case accused Kewal Singh struck a gandasa blow from its sharp side on the head of Amarjeet Singh (deceased ). Autopsy Surgeon found a lacerated wound on the scalp and incised on the front area of the head. He opined that the injuries were sufficient in the ordinary course of nature to cause death. The High Court held that Kewal Singh could not be held responsible for the other injury which was inflicted with blunt weapon and which proved to be fatal, therefore Kewal Singh was convicted under Section 326 IPC. Having regard to the situation in which free fight is said to have taken place he was sentenced to suffer rigorous imprisonment for seven years. The Apex Court confirmed the view of High Court but reduced the sentence from seven years to three years rigorous imprisonment. In Jarnail Singh vs. State of Punjab (AIR 1982 SC 70) it was held that since there was no pre-concert between the accused persons nor a meeting of minds between them before the offence took place, the conviction of the accused under Section 302/34 IPC was bad and since the accused merely gave a taken blow on the ear and caused simple injuries, the conviction was altered to one under Section 324 IPC. ;