NARENDRA SINGH DHADDHA,J. - (1.) Vide this order above mentioned three appeals would be disposed of. Appellants have filed the above mentioned appeals challenging their conviction and sentence as ordered by the Trial Court vide judgment/order dated 16.03.2015. Appellants was convicted and sentenced as under:- Appellant-Jeetu @ Jitendra U/s. 302 IPC: Life imprisonment, to pay a fine of Rs.10,000/- and in default thereof to undergo one year simple imprisonment. Appellants- Nihal Singh, Jaggo @ Jagram, Phool Singh, Babu, Ravi @ Ravinder and Fateh Singh U/s. 302/149 IPC: Life imprisonment, to pay a fine of Rs.10,000/- and in default thereof to undergo one year simple imprisonment. Appellants- Nihal Singh, Jaggo @ Jagram, Phool Singh, Babu, Ravi @ Ravinder, Fateh Singh and Jeetu @ Jitendra U/s. 323/149 IPC: Six months simple imprisonment, to pay a fine of Rs.1,000/- and in default thereof to undergo one month simple imprisonment. Appellants- Nihal Singh, Jaggo @ Jagram, Phool Singh, Babu, Ravi @ Ravinder, Fateh Singh and Jeetu @ Jitendra U/s. 148 IPC: Two years simple imprisonment, to pay a fine of Rs.1,000/- and in default thereof to undergo one month simple imprisonment. Appellants- Jeetu @ Jitendra U/s. 3/25 Arms Act: one year simple imprisonment, to pay a fine of Rs.1,000/- and in default thereof to undergo one month simple imprisonment. Appellants- Jeetu @ Jitendra and Fateh Singh U/s. 29 Arms Act: one year simple imprisonment, to pay a fine of Rs.1,000/- and in default thereof to undergo one month simple imprisonment. Prosecution case was set in motion on the basis of the complaint Exhibit P-1 lodged by the complainant Rajesh. On the basis of the said report, formal FIR No. 185 dated 19.11.2011 was registered at Police Station Halena, District Bharatpur under Sections 147, 148, 149, 323, 341, 336, 302 Indian Penal Code, 1860 (hereinafter referred to as 'IPC'). Prosecution story as per the FIR, in brief, was that on 19.11.2011 accused Fateh, Babu, Nihal Singh, Phool Singh, Munshi, Jitendra, Ravi, Jagram, Bhagsingh, Devi Singh, Bugli, Rajwati and Virma in conspiracy with each other had thrown stones and bricks on the passage leading to their house with a view to block the passage. Due to this reason, they took back their camel cart and asked the accused to remove the bricks and stones. However, Ravi fired from his countrymade pistol and the said shot missed Virendra and passed close to his head. Then, Babu and Fateh told Jitendra that they had missed their shot and he should fire the shot. Then, Jitendra fired from his gun and as a result, the shot hit Virendra and exited from his body. As a result, Virendra died at the spot. Babu gave a farsi blow on the head of Rupe. Nihal Singh, Phool Singh, Munshi, Devi Singh Lagji, Jagram, Bhagsingh, Amira, Virma, Bugli and Rajwati attacked them with sticks and stones and as a result, Gyan Singh, Ramdev Jagdev, Mahesh suffered injuries. After death of Virendra, accused continued pelting stones and bricks at them.
(2.) After completion of investigation and necessary formalities, challan was presented against the appellants. Charges were framed against the appellants by the Trial Court under Section 302, 302/149, 323/149, 148 IPC. Charges were also framed against appellant Jeetu under Section 3/25 and 29 of the Arms Act, 1959. Charge was also framed against appellant Fateh Singh under Section 29 of the Arms Act, 1959. Appellants did not plead guilty to the charges framed against them and claimed trial.
(3.) In order to prove its case, during trial, prosecution examined twenty eight witnesses. Appellants when examined under Section 313 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), prayed that they were innocent and had been falsely involved in the case. Appellants examined two witnesses in their defence. Learned counsel for the appellants has submitted that prosecution had failed to establish its case that the accused had come to the spot by forming an unlawful assembly. In- fact, it was a case of version and cross-version. Complainant party was the aggressor. Appellants Nihal Singh and Phool Singh had also suffered injuries in the incident. Although, investigating agency had given a negative final report with regard to the FIR lodged by the appellants, but now cognizance had been taken by the Trial Court against the complainant party with regard to the offence under Section 325, 326 IPC. Learned counsel has further submitted that at the most it can be said to be a case of free fight as both the sides had suffered injuries in the incident and each assailant was responsible for his own act in the incident. So far as appellant Ravi @ Ravinder is concerned, no recovery was effected from him nor charge was framed against him under the Arms Act. There was no prosecution sanction proved on record to proceed against appellants Jeetu @ Jitendra and Fateh Singh with regard to the offences under the Arms Act. So far as appellant Jeetu @ Jitendra is concerned, prosecution story was not believable as from the medical evidence it was evident that deceased had suffered injury while he was standing at a much higher level than the person who had fired the shot, whereas, the ocular version was with the incident had occurred in a plain field. As per the ocular evidence as well as site plan prepared by the investigating agency, there was a distance of more than thirty five feet between the deceased and the person who had fired the shot. ;