SHARMA, J. - (1.) FINDING KHER-TREE culled, two groups indulged in a free fight resulting in injuries to persons of both groups and death of Vhabhuti. As many as 12 persons were put to trial before learned Additional Sessions Judge (Fast Track) Hindaun City, who vide judgment dated July 18, 2003 convicted and sentenced them as under:- Rambabu @ Munni U/s. 302 IPC : To suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer rigorous imprisonment for three months. Under Section 148 IPC: To suffer simple imprisonment for one year. Under Section 341 IPC: To suffer simple imprisonment for one month. Under Section 323/149 IPC: To suffer simple imprisonment for six months. Babu Lal U/s. 302/34 IPC: To suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer rigorous imprisonment for three months. Under Section 148 IPC: To suffer simple imprisonment for one year. Under Section 341 IPC: To suffer simple imprisonment for one month. Under Section 323/149 IPC: To suffer simple imprisonment for six months. Under Section 324 IPC: To suffer simple imprisonment for two years. Samanta U/s. 325 IPC: To suffer simple imprisonment for three years and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. Under Section 148 IPC: To suffer simple imprisonment for one year. Under Section 341 IPC: To suffer simple imprisonment for one month. Under Section 323/149 IPC: To suffer simple imprisonment for six months. Ghanshyam U/s. 324 IPC: To suffer simple imprisonment for two years. Under Section 148 IPC: To suffer simple imprisonment for one year. Under Section 341 IPC: To suffer simple imprisonment for one month. Under Section 323/149 IPC: To suffer simple imprisonment for six months. The substantive sentences were ordered to run concurrently. Radhey Shyam, Mitha Lal, Ram Niwas @ Niwas, Jagan, Chhuttan, Parmal, Ram Gopal and Mahipat: Each convicted under Sections 148, 323/149 and 341 IPC, but granted benefit of probation under Section 4 (1) of the Probation of Offenders Act for keeping peace for a period of one year and each were directed to pay amount Rs. 500/- towards the cost of prosecution.
(2.) THE prosecution story is woven like this:- Informant Ram Swaroop (Pw. 17) handed over a written report on June 29, 2000 to SHO Police Station Mandrayal wherein it was stated that on the said day around 10 AM while Vhabhuti reached at his field he found that Mahipat and Ghanshyam were cutting tree of Kher. While Vhabhuti taking them to their house, Mahipat somehow escaped from the clutches of Vhabhuti. Meanwhile Jagan Kahar, Parmal, Ramhet, Chhuttan, Samanta, Gopal, Munni, Babu, Kamal, Niwas, Suresh, Mitha, Ramesh, Siya, Kalla, Raju and Radhey Shyam armed with lathis and Gandasis came and surrounded Vhabhuti. Babu inflicted blow with Gandasi on the head of Vhabhuti and others gave blows with lathis. Hearing hue and cry, Raghuvir, Hori Lal, Puran, Amrit Lal reached there and intervened, but they were also beaten up. On hearing about the incident from his son Jagmohan, the informant reached to the spot where Mukesh, Radhey Shyam and Kirodi told him the details of incident. On that report case under Sections 147, 148, 149, 341, 323 and 447 IPC was registered and investigation commenced. During the course of investigation Vhabhuti succumbed to his injuries and Section 302 IPC was added. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed against the appellants only. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Hindaun City. Charges under Sections 148, 323, 341, 325, 324, 302 and 302/149 IPC were framed against the appellants, who denied the charges and claimed trial. THE prosecution in support of its case examined as many as 25 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence and stated that on the date of incident Ghanshyam and Vhabhuti were beating Raghuvir, Hori Lal and Pooran and taking them to their house. THE incident was witnessed by Radhey Shyam and the accused party tried to save them. In that incident Jagan and Chhuttan received severe injuries and Ram Gopal, Ghanshyam, Parmal, Babu, Mitha Lal and Samanta also received injuries. THE appellants were innocent and implicated falsely. One witness Dr. Khemraj Banshiwal (Dw. 1) was examined to prove the injury reports of the accused party. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. We have heard the submissions advanced before us and scanned the material on record. Prior to his death Vhabhuti was examined vide injury report (Ex. P-1) which reads as under:- 1. Oblique incised wound 6cm x 3cm x skin & muscle & bone deep on parietal part of skull with bleeding. 2.Oblique red contusion 4cm x 3cm on right frontal and parietal and temporal .part of skull with depressed suspected fracture of right frontal bones & parietal bone with bleeding right ear and nose and mouth with black right eye with swelling and haematoma. As per Post Mortem Report (Ex. P-2) the cause of death was internal hemmorhage and coma due to severe head injury and injury No. 2 by blunt leading injury to vital organ brain. Raghuvir (Pw. 6) vide injury report (Ex. P3) received following injuries:- 1. oblique lacerated wound 8cm x 2cm on left occipital parietal part of skull with bleeding. 2. Red contusion 7cm x 2cm on left scapular region. 3. Red contusion 4cm x 4cm on left shoulder joint with left scapular region. 4. Oblique lacerated wound 4cm x 1cm on left forearm mid part with bleeding. Radhey Shyam (Pw. 8) vide injury report (Ex. P-5) received following injuries:- 1. Oblique incised wound 4cm x 2cm x skin deep on right parietal part of skull with bleeding. 2. Red contusion 3cm x 2cm on right shoulder joint. Kirori (Pw. 7) vide injury report (Ex. P-7) received following injuries:- 1. Oblique lacerated wound 2cm x 1/2cm on right frontal part of skull with bleeding skin deep. 2. Oblique lacerated wound 2cm x 1/2 cm x skin on mid parietal part of skull with bleeding. 3. Red contusion 3cm x 2cm on left forearm mid part. 4. Oblique lacerated wound 4cm x 1/2cm on right back of chest. 5. Oblique incised wound 2cm x 1/2cm on left hand index finger with bleeding. 6. Oblique incised wound 4cm x 2cm on right hand inner surface right hand palm with bleeding. Amrit Lal (Pw. 1) vide injury report (Ex. P-8) received following injuries:- 1. Oblique incised wound 2cm x 1/2 cm x skin deep on occipital part of skull with bleeding. 2. Oblique incised wound 4cm x 2cm x muscle deep on right parietal part of skull with bleeding. 3. Oblique incised wound 4cm x 2cm on right parietal part of skull with bleeding. 4. Red contusion 3cm x 2cm on left black of chest. 5. Oblique red contusion 3cm x 2cm on right back of chest. 6. Red contusion 4cm x 2cm on right hand and right hand index finger with deformity of finger. 7. Oblique red contusion 3cm x 2cm on right le lower 1/3rd part. Hori Lal (Pw. 3) vide injury report (Ex. P- 11) received following injuries:- 1. Oblique incised wound 4cm x 2cm x skin & muscle deep on mid parietal part of skull with bleeding. 2. Oblique lacerated wound 2cm x 1/2 cm x skin & muscle deep on left side of forehead with bleeding. 3. Red contusion 7cm x 4cm on right hand swelling and tenderness & deformity. 4. Red contusion 3cm x 2cm on right hand fingers & deformity of little finger. 5. Red contusion 3cm x 2cm on left hand & fingers. Puran (Pw. 9) vide injury report (Ex. P-13) received following injuries:- 1. Oblique lacerated wound 2cm x 1/2 cm x skin deep on right parietal of skull with bleeding with swelling. 2. Oblique lacerated wound 3cm x 1/2 cm x skin deep on left parietal part of skull. At this juncture we deem it appropriate to consider the injuries received by accused party. Dr. Khemraj Banshiwal (Dw. 1) deposed that he examined the injuries of Ram Gopal on June 29, 2000, who vide injury report Ex. D-20 received eight injuries. He also examined the injuries of Ram Niwas vide injury report (Ex. D- 21), who received as many as six injuries including injury on left occipital region. Injury No. 8 was grievous in nature. Mahipat vide injury report (Ex. D-22) received three injuries, out of which injury No. 1 was lacerated wound on the occipital region. Babu Lal vide injury report (Ex. D-23) received eight injuries, out of which injuries No. 1 and 2 were on left temporal region and back side of the head. Injury No. 8 on the left hand was grievous in nature. Jagan vide injury report (Ex. D-24) received three injuries, out of which injury No. 1 was lacerated wound on right temporal region. Parmal vide injury report (Ex. D-25) received lacerated wound on the head. Mitha Lal vide injury report (Ex. D- 26) received two injuries, out of which injury No. 1 was lacerated wound on head. The prosecution case is founded on the testimony of witnesses we find that prosecution case is based on the testimony of Hori Lal (Pw. 3), Mukesh (Pw. 4), Raghuveer (Pw. 6), Kirodi (Pw. 7) and Radhey Shyam (Pw. 8), who have been examined as injured eye witnesses. Hori Lal (Pw. 3) in his deposition stated that on the day of incident Mukesh and Radhey Shyam when went to the Bandhwal field, they found that Kher-tree was cut by Ghanshyam. Raghuvir, Amrit Lal, Mukesh, Kirori, Vhabhuti also reached to the field and while they were taking Ghanshyam with them, they were belaboured on the way by Babu, Gopal, Munni @ Rambabu, Samuta, Parmal, Radhey Shyam, Mitha and Niwas. Rambabu @ Munni gave lathi blow on the temple of Vhabhuti and Babu gave blow with Gandasi on the head of Vhabhuti. When he (Hori Lal) intervened Babu inflicted lathi blow on his head, other lathi-blows were inflicted by Radhey Shyam and Mahipat. When Hori Lal fell on earth Samanta gave lathi blow on his finger of right hand, Chhuttan gave lathi blow on the finger of left hand, thereafter he became unconscious. Testimony of Hori Lal gets corroboration from the statements of Mukesh (Pw. 4), Raghuveer (Pw. 6), Kirodi (Pw. 7) and Radhey Shyam (Pw. 8 ).
(3.) GOVIND Singh (PW. 25) who investigated the case deposed in the cross examination that cross case was registered against the complainant party. Fact situation that emerges from the material on record may be summarized as under:- (i) There was no enmity between the appellants, deceased and the injured persons. The occurrence was a sudden affair. (ii) Something which has not been completely unravelled might have sparked off the incident. (iii) There was a dispute regarding cutting of tree. Two groups indulged in a free fight and persons of both groups sustained injuries. (iv) On the date of incident fight ensued when the complainant party gave beating to Mahipat and Ghanshyam and the deceased died in the course of sudden and free fight. (v) Appellants also sustained injuries in the fight and cross case was registered against the complainant party. In Kambi Nanji vs. State of Gujarat (AIR 1970 SC 219) their Lordships of the Supreme Court indicated that where there was a melee at the time of incident and the two groups indulged in a free fight resulting in injuries to persons of both groups and death of two, if the Court comes to the conclusion that the injuries sustained by the persons were in the course of a free fight then there is no question of common object and only those persons who are proved to have caused injuries or death can be held guilty for the offence individually committed by them. ;