Jeetu @ Jitendra And Ors vs State Of Rajasthan

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.

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.

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. Infact, 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.

Learned state counsel who is assisted by the counsel for the complainant has opposed the appeals and has submitted that all the appellants had come to the spot with a common intention to commit the crime-in-question. Hence, the appeal was liable to be dismissed. In support of their arguments, they have placed reliance on the decision given by Hon'ble Supreme Court in case of Munishamappa & Ors. Vs. State of Karnataka, 2019 (1) RCC (SC) 395, wherein, it was held as under:-

"For these reasons, we have come to the conclusion that the High Court was fully justified in reversing the judgment of acquittal, having due regard to the parameters which govern the exercise of its jurisdiction in an appeal against acquittal. Having regard to the facts and circumstances of this case, we are of the view that the High Court was correct in coming to the conclusion that the provisions of Section 149 of the Code stand attracted. Section 149 reads thus:

"Section 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object -If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."

The provisions of Section 149 have been explained by this Court in Mijazi v State of U.P. (AIR 1959 SC 572) and in Masalti v. State of U.P. [1964 (8) SCR 133]. Two elements are crucial to the above definition: (i) the offence must be committed by a member of an unlawful assembly; (ii) the offence must be committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once a common object of an unlawful assembly is established, it is not necessary that all persons who form the unlawful assembly must be demonstrated to have committed the overt act. The common object is ascertained from considering the acts of its members and on the basis of all surrounding circumstances. In Sikandar Singh v State of Bihar(2010(7) SCC477), this Court held thus:

"17. A "common object" does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful."

In a more recent decision in Sanjeev Kumar Gupta v State of Uttar Pradesh[2015 (11) SCC 69], this Court held that a common object does not always require a prior concert and it may form even on the spur of the moment. In taking this view, this Court relied on the earlier decision in Ramachandran v State of Kerala[2011 (9) SCC 257] and held thus: "32. In this case all the accused were very well known to the witnesses. So their identification, etc. has not been in issue. As their participation being governed by the second part of Section 149 IPC, overt act of an individual lost significance."

In the present case, applying the same rationale, we are of the view that the common object within the meaning of Section 149 is evident from the genesis of the incident, the manner in which the accused returned after the initial altercation armed with lethal weapons and the nature of the injuries which were inflicted in concert.

Having carefully considered the submission which has been urged on behalf of the complainant, we are not inclined to interfere with the finding of the High Court that the conviction must be based on the provisions of Section 304 Part I of the Code. In coming to this conclusion and affirming the view of the High Court, we have based ourselves on the background of the dispute, circumstances in which the incident took place and all the surrounding circumstances. However, we are of the view that the sentence which has been imposed by the High Court should be enhanced to ten years rigorous imprisonment. We accordingly affirm the judgment of the High Court convicting accused Nos. 1, 2, 3, 4, 6, 7, 8, and 11 of the offence under Section 304 Part I. However, they are sentenced to undergo rigorous imprisonment of ten years. The conviction under Section 324 read with Section 149 of the Code is affirmed. Criminal Appeal No. 622 of 2011 filed by the complainant is partly allowed in these terms. There is no consistent deposition with respect to accused Nos. 10 and 12. They are given the benefit of doubt and stand acquitted."

Present case relates to murder of Virendra and injuries suffered by PW-1, PW-3, PW-5, PW-12, PW-13 and PW-14. Thus, case rests on eye witness account.

Complainant while appearing in the witness-box as PW-1 has deposed as per the contents of the FIR. Injured witnesses PW-3 Mahesh, PW-5 Gyan Singh, PW-12 Rupe, PW-13 Ramdev and PW-14 Jagdev have corroborated the statement of the complainant.

PW-16 Dr. Hari Mohan deposed that on 19.11.2011 he had medically examined injured Rajesh and had found one injury on his person. He proved the medico legal examination report of the injured as Exhibit P-4. He further deposed that on 29.11.2011 he had medically examined Ramdev and the injured had complained of pain and he proved the medico legal examination report in this regard as Exhibit P-11. He further deposed that on the same day, he examined injured Jagdev and found two simple injuries on his person caused with blunt weapon. He proved his medico legal examination report as Exhibit P-12. He further deposed that on 19.11.2011, he had medically examined Rupe and had found three injuries on his person caused with blunt weapon. He proved his medico legal examination report as Exhibit P-18. He further deposed that on the same day, he had medically examined Gyan Singh and had found three injuries on his person caused by blunt weapon. He proved his medico legal examination report as Exhibit P-19. He further deposed that on 29.11.2011, he had medically examined injured Mahesh and found one injury on his person and the same was complaint of pain, but there was no external injury. He proved his medico legal examination report as Exhibit P-20. He further deposed that on 19.11.2011, he had conducted postmortem examination on the dead body of Virendra and proved the postmortem examination report Exhibit P-21.

A perusal of Exhibit P-21 reveals that Virendra had died on account of excessive hemorrhage due to firearm wounds. A perusal of the said report further reveals that the deceased had suffered one entry wound and one exit wound which resulted in his death.

The question that requires consideration in the present case is as to whether all the accused had come to the spot by forming an unlawful assembly and had committed the crime or whether it was a case of free-fight.

As per the prosecution story, accused had blocked the passage to the house of the complainant party by throwing bricks and stones. When the complainant party met the accused to remove the obstruction, the incident occurred. In the incident, Virendra has died on account of gun shot injury. The said gun shot injury is attributed to appellant Jeetu @ Jitendra. PW-1 Rajesh, PW-3 Mahesh, PW-5 Gyan Singh, PW12 Rupe, PW-13 Ramdev and PW-14 Jagdev had suffered injuries in the incident.

From the statements of DW-1 Dr. Rajesh Kumar Gupta and DW-2 Dr. Hari Mohan Koli, it is evident that Nihal Singh and Phool Singh had also suffered injuries on the day of the incident. Medico legal examination report of appellant Nihal Singh is Exhibit D-14 and X-ray report is Exhibit D-15. A perusal of the same reveal that the said appellant was admitted in the hospital on 19.11.2011 and had suffered fracture of right forearm, left forearm and 6th, 7th and 8th ribs. Appellant Nihal Singh had suffered seven injuries and out of them four injuries were declared grievous in nature. As per Exhibit D-16, appellant Phool Singh had suffered four injuries with the blunt weapon.

Thus, it can be said that in the incident both the sides had suffered injuries. Unfortunately, from the side of the complainant one person had died, whereas, from the accused side one person had suffered multiple fractures and one person had suffered simple injuries.

After carefully going through the statements of the eyewitnesses, we are of the opinion that the incident in the present case had occurred all of a sudden. It cannot be said that the appellants had come to the spot by forming an unlawful assembly with a view to commit the crime-inquestion. Since, the incident had occurred all of a sudden and without any pre meditation, it can be said to be a case of free fight and all the persons participating in the crime would be responsible for their individual acts.

The judgment relied upon by the learned state counsel fails to advance the case of the complainant party in support of their argument that all the accused had formed unlawful assembly, as it is based on different facts. Hence, all the appellants are liable to be acquitted of the charge framed against them under Section 148 IPC.

So far as appellant Jeetu @ Jitendra is concerned, allegation against him is that he had fired from his gun at Virendra and as a result, Virendra had died at the spot on account of firearm injury suffered by him. As per the prosecution story, appellant Jeetu @ Jitendra had fired one shot. From the postmortem examination report also, it is evident that on account of the shot fired by the appellant Jeetu @ Jitendra, deceased Virendra had suffered one entry wound, whereas, the other injury is an exit wound.

Since, appellant Jeetu @ Jitendra had fired from his gun at Virendra, it is evident that he had the intention to commit the murder of deceased Virendra. In this regard, ocular version stands duly corroborated by medical evidence. Hence, learned Trial Court rightly ordered the conviction and sentence of appellant Jeetu @ Jitendra under Section 302 IPC.

Although, during investigation of the case single barrel gun was recovered at the instance of appellant Jeetu @ Jitendra and as per the report of the Forensic Science Laboratory the 12 bore SBBL gun was in a working condition, but the conviction and sentence of the appellant Jeetu @ Jitendra under Section 3/25 and 29 of the Arms Act are liable to be set aside as prosecution sanction obtained by the prosecution to proceed against the said appellant under the Arms Act has not been proved on record.

So far as appellants Nihal Singh, Jaggo @ Jagram, Phool Singh, Babu, Ravi @ Ravinder and Fateh Singh are concerned, they are not attributed any specific overt act against the deceased. Deceased had suffered only one gun shot injury which is attributed to appellant Jeetu @ Jitendra. Hence, the said appellants are liable to be acquitted qua charge framed against them under Section 302 read with Section 149 IPC.

So far as appellants Nihal Singh, Phool Singh and Babu are concerned, their conviction and sentence as ordered by the Trial Court under Section 323 IPC without aid of Section 149 IPC are liable to be upheld. Appellants Phool Singh and Nihal Singh are attributed simple injuries to injured Gyan Singh. So far as appellant Babu is concerned, he is attributed simple injury to injured PW-12 Rupe from the reverse side of farsa.

So far as appellant Jaggo @ Jagram is concerned, he has been attributed simple injury to PW-3 Mahesh. However, as per Exhibit P-20 medico legal examination report of injured Mahesh, it is evident that the said injured was examined on 29.11.2011 and had complained of mild pain with no visible injury. Exhibit P-20 was proved by PW-16 Dr. Hari Mohan. The delay in medico-legal-examination of injured Mahesh with regard to only complaint of mild pain and without any visible injury renders the attribution of injury to him by appellant Jaggo @ Jagram doubtful. Hence, appellant Jaggo is liable to be acquitted qua charge framed against him under Section 323/149 IPC.

So far as appellant Ravi @ Ravinder is concerned, as per the prosecution story, he had fired a shot from his countrymade pistol but the said shot had missed the deceased. During investigation, no firearm was recovered from him nor any empty cartridge was lifted from the spot. In these circumstances, the possibility that appellant Ravi @ Ravinder might have been falsely involved in this case cannot be ruled out. Hence, the said appellant would also be entitled to acquitted qua charge framed against him under Section 323/149 IPC also.

So far as appellant Fateh Singh is concerned, charge was also framed against him under Section 29 of the Arms Act. However, the sanction for prosecution in this regard has not been proved on record. Hence, appellant Fateh Singh is entitled to be acquitted qua charge framed against him under Section 29 of the Arms Act. Appellant Fateh Singh is not attributed any overt act to any of the injured, Hence, the possibility that he might have been falsely arrayed as an accused being father of appellant Jeetu cannot be ruled out and he is also liable to be acquitted qua charge framed against him under Section 323/149 IPC.

Accordingly, appellants Jaggo @ Jagram, Ravi @ Ravinder and Fateh Singh are acquitted of the charges framed against them and appeal qua them is allowed and their conviction and sentence as ordered by the Trial Court vide judgment/order dated 16.03.2015 are set aside.

So far as appellants Nihal Singh, Phool Singh and Babu are concerned, their conviction and sentence as ordered by the Trial Court under Section 148, 302/149 IPC are set aside and they are acquitted of the said charges. Conviction and sentence of the appellants Nihal Singh, Phool Singh and Babu as ordered by the Trial Court is upheld by treating the same as under Section 323 IPC instead of 323/149 IPC.

So far as appellant Jeetu @ Jitendra Singh is concerned, he is acquitted of the charges framed against him under Sections 148, 323/149 IPC and 3/25, 29 of the Arms Act. His conviction and sentence as ordered by the Trial Court under Section 302 IPC are upheld.

D.B. Criminal Appeal No. 377/2015 and D.B. Criminal Appeal No. 267/2015 stand disposed of accordingly.

D.B. Criminal Appeal No. 378/2015 is allowed.