S. S. BYAS, J. - (1.) SINCE these two connected appeals - one against conviction and the other against acquittal -arise out of one and the same judgment of the learned Sessions Judge, Churu dated May 11. 1982, they were heard together and are disposed of by a common judgment. By the impugned judgment, Accused Dharamveer was convicted under section 302, I. P. C. and sentenced to imprisonment for life with a fine of Rs. 50/ - and accused Shubhram was convicted under sections 304 and 323 I. P. C. and was sentenced to seven years' rigorous imprisonment with a fine of Rs. 50/ - on the first count and eight months' rigorous imprisonment on the second count. By the same judgment, four persons Sumersingh, Ramsingh, Rooparam and Madansingh were convicted under section 323 I. P. C. and each was sentenced to eight months rigorous impnsonment, but they alongwith three others Dayaram, Mangeram and Shubhram, were acquitted of the offences under sections 302/149, 148,307/149, 452 and 392 I. P. C. Accused Dharamveer and Shubhram have come -up in appeal and challenge their convictions, while the State, in its appeal, challenges the acquittal.
(2.) THE incident is alleged to have taken place at about 11. 00 or 11. 30 a. m. on May 30, 1981 in village Chandgoti P. S. Hamirwas district Churu, in which two members of the complainant party, viz. , Lalchand and his son Singh Ram, and one member of the accused party, viz. , Mool Chand alias Moolaram, lost their lives. Briefly recounted, the prosecution case is that at about 8. 00 a. m. on May 30, 1981, Vimla the daughter of the deceased -victim Singhram and Guddi daughter of accused Badansingh (both the girls being 6/7 years in age), while playing in the street, picked -up quarrel. The mother of accused (appellant) Shubnran, who is also the grand - mother of Guddi, gave a beating to Vimla. Vimla went to her house and apprised her father Singhram of her being beaten by Shubhram's mother. Singhram went to the house of accused Shubhram, reprimanded his (Shubhram's) mother and came back to his house. At about 11. 00 or 11. 30 a. m. , Lalchand (father of Singhram) was sitting in the Polli of his Bakhal (house ). The other inmates of the family, viz , PW 1 Sajjana, PW 2 Smt. Krishna, PW 3 Mahendra, PW 4 Smt. Nimmo and Singhram were sitting in the Varandah of the house. All of a sudden, nine persons viz. , Dharamveer, Ramsingh, Dayaram, Mangeram, Rooparam, Badansingh alias Badnaram, Sumersingh Shubhram and the deceased Moolchand alias Moolaram stormed into the Bakhal. Dharamveer had an axe, Moolaram had a jelly and the rest had lathis. They asked Lalchand to drive out Singhram as they wanted to kill him because he had abused their mother in the morning. Hearing the noise. Smt. Santosh, Smt. Krishna, Smt. Sajna, Smt. Nimmo and Singhram came out in the Bakhal. As soon as Singhram came out, nine miscreants made an assault on him and started administering blows to him with their weapons. Lalchand and other inmates tried to rescue Singhram. Accused Shubhram struck a blow of his lathi on the head of Lalchand. Accused Dharamveer struck a blow of his axe also on the head of Lalchand. Lalchand fell down with profuse bleeding from his wounds. Singhram went into the Varandah brought a gun and in order to save himself and other inmates of the family, fired a shot. The shot hit Moolchand alias Moolaram. Accused Shubhram struck a blow of his lathi on the gun of Singhram. The gun got broken. Thereafter Singhram was struck blows by the nine miscreants. The other inmates of the house also sustained injuries when they tried to intervene. The accused, while fleeing away , took away the broken gun with them. Lalchand did not survive and passed -away instantaneously. His son Harpath (PW 5), who had gone to Rajgarh, returned after some time. He found his father lying dead and his brother Singhram lying in a pool of blood with multiple injuries and in unconscious state. He further noticed Krishna, Nimmo, Sajna and Mahendra lying injured. Smt. Sajna (PW 1) narrated the incident to him. Harpath arranged a jeep and took Singhram, Smt. Nimmo, Smt. Sajna and Smt. Krishna in it to Government Hospital, Rajgarh. In the way, he got down at Police Station, Hamirwas and sent the jeep to the hospital. At about 1. 50 p. m. on the same day, he verbally lodged report EX. P 7 of the occurrence. The police registered a case and proceeded with investigation. While the jeep was proceeding to Rajgarh, Singhram passed away. The investigation was taken -up by the Station House Officer Har Chand (PW 12 ). He arrived on the spot, inspected the site and prepared the site plan. He found Lalchand's deadbody in the Polli of the Bakhal. He prepared the inquest report of his deadbody. He went to the hospital and prepared the inquest report Ex. P8 of Singhram's deadbody. He lifted the blood stained soil scattered around at some places near the site of occurrence. He also found blood at place shown by mark A -2 in site plan Ex. P 1. He found one fired cartridge case, four live cartridges in a packet and the broken piece of the butt of a 12 -bore gun on the spot alongwiih other articles. They were seized and sealed. The post -mortem examination of the deadbodies of Lalchand and Singhram was conducted on May 31, 1981 by PW 13 Dr. Umaidsingh the then Medical Jurist, Government Hospital, Churu. The doctor stated that he noticed the following ante -mortem injuries on the deadbody of Lalchand : - External Incised wound 4" x 1/2" x bone deep along the saggital sutural line mid of scalp. Internal Fractures of frontal bone, right parietal bone, left parietal bone and occipital bone. In the opinion of Dr. Umaidsingh, the cause of death was head injury. The post -mortem examination report issued by him is Ex. P 65. The doctor further stated that he noticed 17 external injuries and two internal injuries -all ante -mortem, on the deadbody of Singhram, as described in post -mortem examination report Ex. P. 66. He was of the opinion that the cause of death was head injury. The injuries of other injured persons Mahendra, Smt. Krishna, Smt. Nimmo and Smt. Sajna were examined on May 31, 1981 by PW 6 Dr. B. K. Deora the then Medical Officer Incharge, Government Hospital Rajgarh. The injury reports issued by him are Ex. P15, Ex. P16, Ex. P 17 and Ex. P 18. X -ray examination of their injuries was also conducted. Most of their injuries were found simple caused by blunt weapons. The accused persons were arrested and in consequence of the disclosure statements made by them, the barrel of the gun, lathis and blood stained clothes were recovered. On the completion of investigation, the police submitted a crime report against eight persons, viz. , Dharamveer, Ramsingh, Dayaram, Mangeram Rooparam, Badansingh, Sumersingh and Shubhram, in the Court of Munsif cum Judicial Magistrate, Rajgarh, who, in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under sections 148, 302/149, 307, 307/149 and 452, I. P. C. against all of them, to which they pleaded not guilty and faced the trial. They denounced the whole prosecution story as false and incorrect. Five of them, viz. , Dharamveer, Rooparam, Mange -ram, Dayaram and Ramsingh denied their presence on the scene of occurrence, and pleaded that they were at some other places. The remaining three accused viz. , Shubhram, Badansingh alias Badnaram and Sumersingh, admitted their presence, but came out with a counter version. According to them, the police has submitted only a truncated version suppressing the real one. According to them, Singhram (deceased) had come to their house in the morning to reprimand Shubhram's mother. Moolaram alias Moolchand, who was brother of accused Shubhram, turned away Singhram and told him bluntly that he may do what he liked. Singhram returned to his house and Moolchand went to his field. At about 11. 00 a. m. , Moolchand alias Moolaram, Sumersingh, Badanaram and Shubhram were returning from their field to their house. When they reached the place Chokka situate out -side the house of the complainant party, as shown in site plan Ex. P. 1, from where they were to take a turn to their house, Singhram, who was standing in his Bakhal, fired a shot with his gun at them. The shot hit Moolchand alias Moolaram and he fell down. Apprehending grave danger to their lives, Shubhram, Badnaram and Sumersingh rushed towards Singhram to disable his fire -arm. There they were beaten by Singhram, Lalchand and other inmates of their family. In order to save themselves from being further beaten, they snatched away the lathi from Mahendra, Lalchand and others and started landing blows to Singhram in order to prevent him from re -loading his gun. Singhram and Lalchand, thus, sustained injuries. Accused Shubhram went to Police Station and lodged report of the incident. The police registered a case under section 302, I. P. C. against Singhram, but on account of his death, sub -mitted final report. They have, thus, come with a definite plea of the right of private defence of person. In support of its case, the prosecution examined 13 witnesses and filed some documents. In defence, the accused examined no witness. On the conclusion of the trial, the learned Sessions Judge, after a close scrutiny of the evidence, recorded his findings as under: - (1) the two minor girls Vimla D/o deceased Singhram and Guddi D/o accused Badansingh picked -up quarrel in the morning of the day of the incident. The mother of accused Badansingh slapped Vimla. Vimla complained to her father. Her father Singhram went to Badansingh's house and reprimanded the mother of accused Badansingh; (2) the deceased Singhram was the aggressor. The accused party was coming from their fields on their way to their house. When they reached the Choka in the street, shown by mark A -2 in site plan EX. P 1, situate out -side the house of the complainant party, Singhram, standing in the court -yard of his house, fired a shot at them, which hit Moolaram (brother of accused Badansingh ). Moolaram fell down and died on the spot; (3) the members of the accused party, seeing Moolaram shot dead and further seeing Singhram standing in the court -yard of his house with a gun in his hand, apprehended grave danger to their lives They, therefore, rushed towards him in order to over power him and disable his gun. They had a right of private defence of person in doing so. Though they were more than five in number, they did not form an unlawful assembly because their common object was to defend themselves; (4) the accused persons had a right to use force but within the permissible limits. Since they did not form an unlawful assembly, if any of them caused more harm than necessary, he alone was individually responsible for it. The other members of the accused party could not be fastened with vicarious liability under section 149, I. P. C; (5) accused Shubhram caused the death of Singhram. He, of course, had a right to use force against Singhram, but in causing his death, he caused -more harm than necessary. Even after the gun of Singhram was broken, he (Shubhram) struck blows to him and caused his death. He, thus, exceeded the right of private defence and was, therefore, guilty under the first part of section 304, I. P. C; (6) Lalchand - father of Singhram - was only an intervenor who came forward to rescue his son. No right of private defence was available against him. Only one blow was struck on his head by accused Dharamveer. No other accused inflicted any injury to him. His head injury was sufficient in the ordinary course of nature to cause death Accused Dharamveer was, therefore, guilty for the offence of murder u/s 302, I. P. C. (7) PW 1 Smt. Sajna, PW 2 Smt. Krishna, PW 3 Mahendra and PW 4, Smt. Nimmo were struck blows by accused Sumersingh, Ramsingh, Rooparam and Badansingh. Some of their injuries were grievous. Since it could not be established as to who out of the accused persons caused grievous injuries, none of them could be convicted under section 325, I. P. C. Each of them could, however, be convicted under section 323, I. P. C; and (8) accused Mangeram and Dayaram were not in the party of the accused persons. They did not come on the spot. The learned Sessions Judge, on the basis of the above findings, convicted and sentenced the accused persons as mentioned at the very out -set.
(3.) WE have heard Mr. Ganpatram and Mr. B. R. Arora -learned counsel for the appellants and the learned Public Prosecutor for the State assisted by Mr. M. D. Purohit learned counsel for the complainant. Since there are cross -appeals against convictions and acquittals, we were thoroughly taken through the entire evidence by the learned counsel for the parties and the learned Public Prosecutor. Before dealing with the respective contentions, we may state that Moolaram of the accused party was shot dead by the deceased Singhram. This fact is no more under controversy The post -mortem examination report of his deadbody was conducted at about 11. 00 a. m. on May 31, 1981 by PW 13 Dr. Umaidsingh. The post -mortem examination report prepared by him is EX. D 9, the certified copy of which is there on the record. The doc or stated that he noticed the following ante -mortem injuries over his deadbody: - (1) Ten wounds of entry 2 at 1 1/2" above the right nipple, 2 at on right and below the right nipple about 1". 2 in the anterior axillary line near the pectoral region, one wound of entry on the anti -axillary fold. Three are placed in the anterior lateral surface of right arm in its upper 1/2. There was blackening around all these wounds. Each wound was roughly 1/6" x 1/6" size. All the wounds going obliquely downwards medially and towards left side. (2) wounds - two wounds of exit on the medial surface of right arm at its upper 1/2 of two wounds of entry out of three corresponds. (3) One wound of exit on the left post axillary line lower part of thorax left side of thorax. The doctor also detected two buck -shots lodged in the right fore -arm. In the opinion of the doctor, the cause of his death was injuries to the vital organ, leading to haemorrhage. The injuries were caused by the shot of a fire -arm. The injuries were stated to be sufficient in the ordinary course of nature to cause death. The dispersion of the pellets leading to the injuries of the entry was in the chamber of about ten inches. The doctor further stated that the blackening around the entry wounds was on the immediate edge of the wounds and was due to smoke -layer around each individual pellet and due to its heated nature. There was no blackening on the surface of the hit area. The doctor further stated that the shot at Moolaram was fired from a range between ten to twenty yards. The death of Moolaram plays a very significant role in deciding the fate of the case. We shall take -up the State's appeal against acquittal to start with. In assailing the acquittals, the learned Public Prosecutor and Mr. Purohit formulated the following contentions 1) the finding of the court -below that Singhram fired the shot first when the accused persons were at Choka 2 -A in site plan EX. P 1, is pulpably wrong and incorrect. Moolaram was fired at by Singhram when the former was in his (Singhram's) Bakhal alongwith other accused persons; 2) the accused, who were more than five, had formed an unlawful assembly. When Singhram went to reprimand the mother of accused Badansingh, he slapped her. The deceased Moolaram was then present there. He went to the field and collected the other accused persons. They all came together from there with axe, Jelly and lathis and went to Singhram's house to take him to task. Their common object was to kill Singhram and any other person who came in their way of accomplishing their task. They, thus, constituted an unlawful assembly with the common object of committing the murder; and 3) no right of private defence of person was available to the accused party. The accused were the aggressors and intruded into the Bakhal of Singhram. Since the common object of the unlawful assembly was to commit murders, each of them must have been convicted under sec. 302 read with s. 149, I. P. C. for causing the murders of Singhram and his father Lalchand. ;