Chhota and Others vs State of Rajasthan

Shiv Kumar Sharma, J.—The appellants, eight in number, were the accused on the file of learned Additional Sessions Judge (Fast Track) Bandikui bearing Sessions Case No. 23/2003. Learned Judge vide judgment dated September 4, 2003 convicted and sentenced the appellants as under:

Chhota Ram:

Under Section 302 IPC:

To suffer imprisonment for life and fine of Rs. 200/-, in default to further suffer simple imprisonment for fifteen days.

Under Section 148 IPC:

To suffer simple imprisonment for one year.

Under Section 324/149 IPC:

To suffer simple imprisonment for one year.

Under Section 323/149 IPC:

To suffer simple imprisonment for six months.

Parsadi, Dhamsi, Shankar, Prahlad, Jag Ram, Roop Ram and Heeru:

Under Section 302/149 IPC:

Each to suffer imprisonment for life and fine of Rs. 200/-, in default to further suffer simple imprisonment for fifteen days.

Under Section 148 IPC:

Each to suffer simple imprisonment for one year.

Under Section 325/149 IPC:

Each to suffer simple imprisonment for two years and fine of Rs. 100/-, in default to further suffer simple imprisonment for fifteen days.

Under Section 324/149 IPC:

Each to suffer simple imprisonment for one year.

Under Section 323/149 IPC:

Each to suffer simple imprisonment for six months.

The substantive sentences were ordered to run concurrently.

The facts are these:

On September 30, 2001 informant Ummed Lal Meena (Pw.6) submitted a written report (Ex.P-3) at Police Station Bandikui stating therein that on the preceding day around 10-11 PM when they reached to their field they saw Babu Lal and his relatives reaping the crop. When informant raised objection, they made attempt to beat him. The informant in order to save his life ran towards the village but the assailants chased him, when family members of informant intervened they were surrounded by the assailants and were beaten up. Babu Lal, Jag Ram, Chhote, Shankar, Dhansi, Prahlad and Parsadi inflicted blows with lathis and stones on the person of of Jagan Meena, Shri Lal, Chhajya, Geelya, Phoolwati and Ummed. Narsi, Seev Ram, Kedar, Meera and Seema were also beaten up. On that report case under Sections 147, 148, 149, 447, 341, 323 IPC was registered and investigation commenced. During the course of investigation Shri Lal succumbed to his injuries and Section 302 IPC was added. After completion of investigation charge sheet was filed. In due course the case came up for trial before the court of learned Additional Sessions Judge (Fast Track) Bandikui. Charges under Sections 148, 302, 302/149 324, 324/149, 325, 325/149 and 323/149 IPC were framed. The appellants denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. In the explanation u/s 313 CrPC, the appellants claimed innocence. No witness in defence was however examined. Learned trial.

Injuries sustained by Shri Lal in the incident were examined and nature of injuries were incorporated in injury report (Ex.P-33) as under:

Swelling with bruise of red colour 12cm x 8cm on Rt. side of scalp and face.

Swelling with bruise of red colour 8cm x 6cm on left side of scalp.

Dr. R.K. Verma (Pw.15), who performed autopsy on the dead body and drew post mortem report (Ex.P-39) opined that cause of death was Coma as a result of ante mortem injuries to skull and brain.

Gila Ram (Pw.7) vide injury report (Ex.P32-A) received following injuries:

Incised wound 5cm x 3/4cm x scalp tissue deep on left fronto parietal area of scalp.

Swelling with tenderness 6cm x 4cm on lateral maleolus of left ankle joint.

Bruise 6cm x 1cm on back of Rt. shoulder joint.

Abrasion 1cm x 1cm on back of left shoulder joint.

Phoolwati (Pw.4) as per injury report (Ex.P-34) received one abrasion 2cm x 1cm on mid of occipital area of scalp. Chhaju Ram (Pw.3) also as per injury report (Ex.P-35) sustained one abrasion 1 1/2cm x 1/2 cm in mid of occipital area of scalp.

(Ex.P-36) received following injuries:

Swelling 6cm x 4cm on back of mid of Rt. forearm.

Swelling 5cm x 4cm on back of mid of left forearm.

Incised wound 3cm x 1/2cm x scalp tissue deep on Rt. fronto parietal area of scalp.

Bruise 5cm x 2cm on back of left shoulder joint.

At this juncture injuries sustained by the accused party during the incident may also be noticed. Appellant Chhote Lal vide injury report (Ex.D-10) received following injuries:

incised wound 1 1/2cm x 1/2cm x scalp tissue deep in mid of left parietal area of scalp.

Lacerated wound 1/2cm x 1/2cm x scalp tissue deep in mid of scalp.

Appellant Jag Ram as per injury report (Ex.D11) received following injuries:

Lacerated wound 1 1/2cm x 1/2cm x tissue deep on lateral aspect of proximal phalungral joint of Rt. hand index finger.

Bruise 4cm x 3cm on back of Rt. shoulder joint.

On X-ray (Ex.D-15) fracture was found under finger.

Appellants Shankar Lal, Prahlad and Dhansi vide injury reports (Ex.D-12), (Ex.D-13) and (Ex.D-14) also received injuries on left parietal region, left shoulder joint and upper aspect of cheek.

10.

We have heard rival submissions and scanned the material on record.

Turning to the prosecution evidence, we find that Ummed (Pw.6) in his deposition stated that around 10-11 PM while he was at his house three relatives of Babu, namely Chhota, Jag Ram and Parsadya came on a motor cycle and told him that they will help him in reaping the crop. On reaching the field he found Jag Ram, Chhota, Parsadya, Dhamsi, Shankar and Prahlad in his field. They were reaping the crop. When he raised objection, he was belaboured. He then ran for his life, but he was chased. They gave beating to Hari Kishan, Chhajya, Shri Lal, Jagan, Geelya and Phoolwati. In his cross examination he did not explain the injuries sustained by the accused party. According to him no cross case was registered against him. Testimony of Ummed gets corroboration from the evidence of other injured eye witnesses.

Fact situation that emerges from the material on record may be summarized as under:

(i)

(ii) Something which has not been completely unravelled might have sparked off the incident.

(iii) There was a dispute regarding the agricultural land between the parties.

(iv) On the date of incident fight ensued between the complainant party and the accused party and Shri Lal died as a result of fight.

(v) Appellants Chhote Lal, Jag Ram and Dhansi sustained lacerated and incised wounds in the fight and cross case was registered against the complainant party.

(vi) The injuries sustained by the members of the accused party were not explained by the prosecution.

Having analysed the material on record we find that 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 one.

In Dharman Vs. State of Punjab, there was a dispute regarding Shamlati land existed between the parties. The accused claimed that the land was in their possession whereas the party of the deceased put forward the claim that the land had been in their possession for many years. On the date of the incident a fight ensued. The deceased died in the course of a sudden and free fight by the injury inflicted by the appellant. The deceased''s party was also armed with dangerous weapons. It was held by the Supreme Court, that when two such contending parties, each armed with weapons, when clashed and in the course of free fight some injuries were inflicted on one party or the other, it could not be said that either of them acted in cruel or unusual manner and the case against the appellant clearly fell within Exception 4 to Section 300 IPC.

Ratio indicated in Dharman v. State of Punjab (supra) is squarely applicable to the facts of the instant case. Appellants Chhote Lal, Jag Ram, Shankar Lal, Prahlad and Dhansi received injuries and the prosecution witnesses did not explain as to how they received injuries. Thus origin and genesis of the incident appears to have been withheld by the prosecution. Evidently the incident did occur all of a sudden and both parties fought freely. The injury on head received by deceased, which proved fatal although had been attributed to appellant Chhota, we find that he did not behave in an unnatural or cruel manner. Thus the case against Chhota comes within the purview of Exception 4 to Section 300 IPC.

That takes us to the allegations made against other appellants. In Kanbi Nanji Virji and Others Vs. The State of Gujarat, 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.

In Indian Statistical Institute Vs. Associated Builders and Others, it was indicated that in a mutual fight there is no common object and none of the accused can be convicted by having recourse to Section 149 IPC.

As already noticed by us in the instant case that complainant party and accused party had no previous enmity and there was a melee at the time of incident and two groups indulged in a free fight resulting in injuries to persons of both groups and death of Shri Lal. Members of complainant party were also armed with weapons and in the fight appellants Jag Ram, Shankar Lal, Prahlad and Dhansi had sustained injuries. The prosecution witnesses did not explain those injuries. This fact gives rise to the inference that the prosecution is guilty of suppressing the genesis and origin of the occurrence. Since it was a sudden fight and without premeditation there was no 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. The prosecution in this case, is only able to establish that appellant Chhota committed offence of culpable homicide not amounting to murder. Charges against Jag Ram, Shankar Lal, Prahlad and Dhansi however could not be established beyond reasonable doubt.

For these reasons, we dispose of instant appeal in the following terms:

(i) We partly allow the appeal of Chhota and instead of Section 302 we convict him u/s 304 part II IPC. Looking to the fact that Chhota has already undergone confinement for a period of more than six years, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We however acquit Chhota of the charges under Sections 148, 325/149, 324/149 and 323/149 IPC. Appellant Chhota, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case.

(ii) We allow the appeal of Parsadi, Dhamsi, Shankar, Prahlad, Jag Ram, Roop Ram and Heeru and acquit them of the charges under Sections 302/149, 325/149, 324/149, 323/149 and 148 IPC. These appellants are on bail, they need not surrender and their bail bonds stand discharged.

The impugned judgment of learned trial court stands modified as indicated above.