Virndavan and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—After thorough investigation of the case FIR No. 40/99 registered at the Police Station Hindauli for the offences under Sections 147, 148, 149, 323, 341, 436, 307 and 302 IPC, eleven persons, namely Ramnath S/o. Bhikaram, Bantu @ Raghuraj S/o. Radhavallabh, Vishambhar S/o. Ramnath, Ramavtar S/o. Jyotiram, Ram Khiladi S/o. Sri Ram, Ravikant S/o. Ram Khiladi, Ramji Lal S/o. Ramswaroop, Virndavan S/o. Ramji Lal, Mohan S/o. Ramji Lal and Ramsevak S/o. Ramavatar and Radhavallabh S/o. Ramnath, were nominated as accused by the investigating agency.

During the trial, Ramji Lal S/o. Ramswaroop died. Against another accused Radhavallabh charge-sheet was submitted under Section 299 Cr.P.C. it is stated before us by Mr. A.K. Gupta, the learned counsel for the appellants that Radhavallabh had also died during the pendency of the appeal.

The trial Judge has mentioned in the impugned judgment that Bantu @ Raghuraj S/o. Radhavallab being delinquent juvenile in conflict with law, was sent for trial before the concerned Juvenile Justice Board.

The trial court after acquitting Vishambhar, Ram Khiladi and Mohan accused, convicted Virndavan for the offences under Sections 148, 302/149, 307/149, 323/149 of IPC. However, the trial court acquitted Virandavan for the offences under Sections 429, 429/149, 436, 436/149 of IPC and 3/25 of Arms Act. The trial court also convicted the accused Ravikant and Ramsevak for the offences under Sections 147, 302/149, 307/149, 323 of IPC. The trial court acquitted Ravikant and Ramsevak for the offences under Sections 429 or 429/149, 436 or 436/149 IPC. The trial court convicted Ramavtar for the offences under Sections 148, 302/149, 307 and 323/149 IPC. The trial court acquitted Ramavtar for the offences under Sections 429 or 429/149 and 436 or 436/149 of IPC. The trial court convicted the accused Ramnath for the offences under Sections 148, 302/149, 307/149 and 323/149 of IPC. The trial court acquitted the accused Ramnath for the offences under Sections 429 or 429/149, 436 or 436/149 of IPC and Section 3/27 of Arms Act. The trial court acquitted remaining accused, namely Vishambhar, Ram Khiladi and Mohan of all the charges. Thus, Virndavan, Ramnath, Ravikant, Ramsevak and Ramavtar stand convicted by the trial court.

Having convicted the above said appellants for aforesaid offences, the trial court vide a separate order of even date, sentenced them as under:--

Appellants Virndavan and Ramnath:

"U/s. 148 IPC- to undergo one year S.I. and to pay a fine of Rs. 1,00/-, in default of payment of fine, to further undergo seven days S.I.

U/s. 302/149 IPC- to undergo life imprisonment and to pay a fine of Rs. 2,00/-, in default of payment of fine, to further undergo seven days S.I.

U/s. 323/149 IPC- to undergo one year S.I. and to pay a fine of Rs. 1,00/-, in default of payment of fine, to further undergo seven days S.I.

U/s. 307/149 IPC- to undergo seven year R.I. and to pay a fine of Rs. 2,00/-, in default of payment of fine, to further undergo seven days S.I.

Appellants Ravikant and Ramsevak:

U/s. 147 IPC- to undergo one year S.I. and to pay a fine of Rs. 1,00/-, in default of payment of fine, to further undergo seven days S.I.

U/s. 302/149 IPC- to undergo life imprisonment and to pay a fine of Rs. 2,00/-, in default of payment of fine, to further undergo seven days S.I.

U/s. 323 IPC- to undergo one year S.I. and to pay a fine of Rs. 1,00/-, in default of payment of fine, to further undergo seven days S.I.

U/s. 307/149 IPC- to undergo seven year R.I. and to pay a fine of Rs. 2,00/-, in default of payment of fine, to further undergo seven days S.I.

Appellant Ramavtar:

U/s. 148 IPC- to undergo one year S.I. and to pay a fine of Rs. 1,00/-, in default of payment of fine, to further undergo seven days S.I.

U/s. 302/149 IPC- to undergo life imprisonment and to pay a fine of Rs. 2,00/-, in default of payment of fine, to further undergo seven days S.I.

U/s. 307 IPC- to undergo seven year R.I. and to pay a fine of Rs. 2,00/-, in default of payment of fine, to further undergo seven days S.I.

U/s. 323/149 IPC- to undergo one year S.I. and to pay a fine of Rs. 1,00/-, in default of payment of fine, to further undergo seven days S.I."

In the present case, the criminal proceedings were set into motion on the basis of written report (Exhibit-P/30) submitted by Matadeen (P.W. 12) before Meghchand Meena (P.W. 17). Meghchand Meena (P.W. 17), who was then posted as S.H.O. at Police Station Diholi, District Dholpur, deposed in the court that on 21.3.1999, he received an anonymous telephonic call and the caller stated that in village Gadrai firing from firearms is taking place. Since, it was sunset time, the investigating Officer along with the police party left for village Gadrai and reached in the late hours of the night at village Gadrai. Matadeen (P.W. 12) had presented the written report (Exhibit-P/30).

In the written report (Exhibit-P/30), it was stated that on 21.3.1999, at about 6:00 PM, Matadeen along with his Tau''s (elder brother of father) son Gulab Singh, uncle Ajmer Singh and his son Bhagwan Singh, were having conversation. At that time, Radhavallabh and Vishambhar sons of Ramnath, Ramavtar son of Jyoti Ram came on a tractor. While passing in front of the house of the complainant, they demolished Chabutara (a temporary construction raised for sitting), upon which, the complainant party raised objection and asked as to why they cannot drive the tractor properly. At that time, all the accused, namely Ramavtar, who was armed with country made pistol (Pachfera), Radhavallabh armed with gun, Vishambhar armed with lathi accompanied by Ram Khiladi, Ravikant, Ramsevak, Ramnath, Ramji Lal, Virndavan, Mohan, alighted from the tractor and came towards the complainant. Upon which all the witnesses stood up. Radhavallabh fired a shot from his rifle and the bullet hit the deceased, Gulab Singh son of his uncle, due to which Gulab Singh fell on the ground. Omwati (P.W. 14), sister of the complainant ran towards Gulab Singh then Ramavatar fired from rifle and shot hit on her foot. When nephew, Bhagwan Singh (P.W. 15) came forward to take care of the complainant, then Ramsevak and Ravikant caused him injuries with lathi. At the place of occurrence, Purshottam S/o. Asharam (P.W. 24), Rakesh S/o. Atar Singh (P.W. 19), Rajendra S/o. Chob Singh Thakarani (P.W. 18), were present.

Thus, from the perusal of the written report, it is revealed that the accused were going on the tractor and while they were passing in front of the house of the complainant, the tractor had hit the Chabutara and the same was demolished. The complainant party had objected and the accused party had opened the attack.

Dr. R.C. Goyal (P.W. 8) on 22.3.1999 had conducted radiological examination of Omwati (P.W. 14). On perusal of the X-ray report, this witness had found no bony injury on the person of Omwati (P.W. 14) but radio based metal opaque shadows were found.

Dr. Sandeep Bhargava (P.W. 25) was posted as Veterinary doctor. He has examined the buffalo who had died due to gun shot injury.

Dr. Adarsh Saxena (P.W. 2) had conducted autopsy on the dead body of deceased, Gulab Singh on 22.3.1999 at 10:45 PM. As per Post Mortem Report (Exhibit-P/9), this witness found a gun shot injury wound on the neck of the deceased. On internal examination, Dr. Adarsh Saxena had found wounds on the neck and clavicle. Doctor during post mortem had found following injuries on the person of the deceased Gulab Singh as under:--

"(i) Gunshot wound (wound of entry) 0.8cm x 0.6 cm, oval in shape, edges are inverted, situated over left side of neck, anteriorly, 3.5 cm away from mid-line of body and 6.5 cm above clavicle. Piercing the trachea (posteriorly) and esophagus and neck muscles, direction of wound is downward, backward and posteriorly towards right side above scapula, wound is communicating to wound of exit i.e. wound No. 2.

(ii) Exit wound (Gun Shot) 4.5 cm x 3.5 cm, irregular in shape, margins are everted, situated above scapula right side, 4.5 cm away from mid-line. This wound is communicating to wound number one i.e. wound of entry."

Omwati (P.W. 14) was also examined by the doctor (P.W. 2) on 22.3.1999 at 2:30 AM and as per injury report (Exhibit-P/10), had found the following injuries on her person:

"(i) Gunshot Entry wound- 2cm x 1.5cm, oval in shape, margins are inverted, situated over middle 1/3rd of right thigh anteriorly depth is communicating to wound of exit i.e. wound No. two.

(ii) Gunshot Exit wound, 10cm x 6cm, irregular in shape, over middle 1/3rd of right thigh posteriorly, communicating to wound of entry i.e. wound No. one."

It is to be noted that in the present case, appellant Ramavtar had also suffered injuries in the occurrence. This witness proved his medico-legal examination conducted on 25.3.1999, and as per injury report (Exhibit-D/1), following injuries were found on the person of Ramavtar:--

"(i) Gunshot entry wound 1cm x 0.8cm, oval in shape, 1cm ms deep, pus is coming out of this wound, margins are inverted, surrounding area of wound is inflamed and indureted. Situated at junction of upper 1/3rd and middle 1/3rd of right upper arm, antero-lateral margins, direction of wound is towards backward, posteriorly.

(ii) Gunshot Exit wound, 1.5cm x 1cm, irregular in shape, 2.5cm, deep to muscle in the direction of injury No. one, margins are outwards, inflamed. Pus is coming out of this wound, surrounding area is indureted wound is situated in the opposite direction of wound No. one, over junction of upper 1/3rd and middle 1/3rd right upper arm, posterior aspect towards medially."

Doctor on examination, had found no bony injury on the person of appellant, Ramavtar, but opined that two radio opaque shadows were found.

As per the FIR, even though Bhagwan Singh (P.W. 15) was allegedly caused injury by Ramsevak and Ravikant. He was not medico-legally examined and the prosecution has not proved on record any injury suffered by Bhagwan Singh (P.W. 15).

The prosecution in all had examined 26 witnesses and had proved 44 documents being Exhibit-P/1 to Exhibit-P/44. The statement of the accused were recorded under Section 313 Cr.P.C. The accused denied all the incriminating circumstances and pleaded innocence.

In defence, accused have examined Rajendra Prasad as D.W. 1. Rajendra Prasad in court stated that Raghuraj S/o. Radhavallabh had completed his education from standard VI to VII and as per office record his date of birth is 1.7.1981. Thereafter, the defence exhibited 13 documents being Exhibit-D/1 to Exhibit-D/13.

The case of the prosecution rests on eyewitness account given by Ajmer Singh (P.W. 6), Matadeen (P.W. 12), Omwati (P.W. 14), Bhagwan Singh (P.W. 15). It is to be noted that even though Rajendra (P.W. 18), Rakesh (P.W. 19) and Purshottam (P.W. 24) cited and examined as eyewitnesses are not relations of the complainant party.

Before we take note of the evidence of the eyewitnesses, we may highlight that the witnesses made a significant departure from their statement recorded under Section 161 Cr.P.C. and stated that the accused after demolishing Chabutara had gone to their house and brought weapons and caused injuries. Whereas, in the FIR, and in the previous statement recorded by the police under Section 161 Cr.P.C. the case of the prosecution in definite terms was that the accused, immediately when Chabutara was demolished, alighted from the tractor and caused injuries with the weapons. The witnesses were duly confronted with their statement recorded by the police. As is apparent, this twist was given to the prosecution story to say that the occurrence was not a spontaneous affair without any pre-mediation, but had occurred due to consultations and deliberations, as accused after going to their house had brought the weapons.

Now we shall notice the account of occurrence divulged by the eyewitnesses.

Ajmer Singh (P.W. 6) in the court stated that on 21.3.1999, at about 6:00 PM, in the front of the house of Matadeen (P.W. 12), he along with Omwati (P.W. 14) and Matadeen (P.W. 12) and other family members were sitting. Then, Radhavallabh, Ramavtar and Vishambhar came on tractor. Due to negligent driving, they had caused damage to the Chabutara leading to exchange of hot words Thereafter, the accused went to their house saying that they will teach a lesson and accused came armed with weapons. Radhavallabh was armed with country made pistol (Pachfera), Ramavtar was also armed with gun, Ramnath with double barrel gun and Virndavan with single barrel gun. Virndavan and Ramnath fired in order to commit murderous assault. Radhavallabh caused injuries from front of his house on neck of Gulab Singh. Gulab Singh died at the spot. Omwati (P.W. 14) ran towards the dead body of Gulab Singh. Ramavtar fired a shot which hit on the right thigh of Omwati (P.W. 14). To save Omwati, Bhagwan Singh (P.W. 15) ran towards her and Ramsevak and Ravikant caused him injuries with lathis. This witness (Bhagwan Singh) was saved due to intervention of Purshottam (P.W. 24) and Rajendra. After causing injuries with lathi, Ramsevak had put the house of Matadeen on fire and all started pelting stones. Meanwhile, on the dead body of Gulab Singh, wailing and crying started. The accused ran away from the spot towards jungle. Ajmer Singh (P.W. 6) stated that he did nothing, he had only witnessed the occurrence. The police came in the village on 22.3.1999. Then he stated that the police came on 21.3.1999 at 8:00 PM. This witness stated that the police lifted blood stained soil from the place where Omwati (P.W. 14) had fallen. This witness had attested the memo Exhibit-P/17. The police had also taken the samples (controlled soil) vide memo Exhibit-P/18. The police had also taken into possession some burnt grain, burnt wood and burnt clothes, vide memo Exhibit-P/19. This witness had also attested the said memo. The police had taken into possession seven empty cartridges vide memo Exhibit-P/20. Five cartridges recovered from the house of Radhavallabh. The police had made site plan of the spot (Exhibit-P/21).

As stated by us, regarding departure made by the prosecution witnesses and qua introduction of the story, that the accused had gone to their house and brought weapons, we shall reproduce in vernacular confrontation made by the defence to bring on record the fact that this was not the stand of the witnesses earlier. The confrontation so brought on record reads as under:

It is to be noted that the witnesses have stated nothing so far injury on the person of accused Ramavtar is concerned.

Now, we shall take note of the testimony of Matadeen (P.W. 12), the complainant.

Matadeen (P.W. 12) also stated that on 21.3.1999 at about 6:00 PM, he along with his uncle''s son Gulab Singh, Ajmer Singh (P.W. 6), younger sister Omwati (P.W. 14), nephew Bhagwan Singh (P.W. 15) and other members of the family were sitting on the Chabutara. At that time, the accused Ramavtar, Radhavallabh and Vishambhar came on tractor and damaged the Chabutara. The family of the complainant objected and asked the accused as to why they cannot drive the tractor carefully. Upon which, the accused left by giving threats and stated that they will come back and teach a lesson. After sometime, the accused namely, Ramavtar, Ramsevak, Ram Khiladi, Ravikant, Ramnath, Vishambhar, Bantu @ Raghuraj, Mohan, Virndavan and Ramjilal came. Ramavtar and Radhavallabh were armed with country made pistol (Pachhfera), Ramnath and Virndavan were armed 12 bore guns and others were armed with lathis and Farsi. On arrival, the accused said that we have come. All the members of the family of the complainant stood up. Meanwhile, Ramavtar fired a shot. The said shot hit Omwati (P.W. 14). Radhavallabh fired a shot which hit the deceased, Gulab Singh. Gulab Singh died at the spot.

In cross-examination Matadeen (P.W. 12) further proved proceedings carried by the police at the spot. This witness stated that the police on arrival had asked as to how occurrence had started. When the police came, Omwati (P.W. 14) was sitting near the dead body of Gulab Singh. Bhagwan Singh etc were also sitting there. Police had recorded their statement in night. This witness was also confronted with his previous statement (Exhibit-P/30), wherein it was not recorded that the accused left the threat and had gone to their house and had returned back. The confrontation of the witness with his previous statement in exact words is reproduced below:

This witness (P.W. 12) further stated that he had not told to the police that the shot fired by Ramnath had hit the buffalo. This witness further stated in cross-examination that Ramavtar had fired a shot from a distance of 40-45 feet. This witness had also said nothing regarding injury suffered by Ramavtar.

Omwati (P.W. 14) also reiterated as to what was stated by Matadeen (P.W. 12). This witness was also confronted with previous statement (Exhibit-D/4), wherein it was not recorded that the accused had gone to their house and had come back armed. This witness stated as under:

This witness denied the suggestion that the first injury was caused to Ramavtar on his hand. This witness stated that no injury was suffered by Ramavtar. This witness denied the fact that Radhavallabh fired a shot in order to save Ramavtar. To be precise, this witness stated as under:

Bhagwan Singh (P.W. 15) also testified on similar lines. This witness was also confronted with the statement (Exhibit-D/4), wherein it was not recorded that Ramavtar had fired a shot near house of Ram Khiladi and Radhavallabh had fired a shot from his house.

Rajendra (P.W. 18) stated that on the day of occurrence, at about 6:00 PM, he was sitting at his house. He heard noise of Matadeen (P.W. 12). He came and saw that the accused Radhavallabh, Ramavtar, Virndavan, Ramnath, Ram Khiladi, Ravikant, Ramsevak, Vishambhar all pounced at Matadeen. The accused, Radhavallabh and Ramavtar were armed with guns. Virndavan and Ramnath were also having 12 barrel guns and others were armed with lathis. Due to shot fired by Radhavallabh, Gulab Singh died at the spot. Omwati (P.W. 14) came to lift him then, Ramavtar fired a shot which hit on her foot. Omwati (P.W. 14) fell there. When Bhagwan Singh (P.W. 15) came to rescue her, Ramsevak and Ravikant caused him injuries with lathis.

To similar effect is the statements of Rakesh (P.W. 19) and Purshottam (P.W. 24).

Megh Chand Meena (P.W. 17) in the court stated that on 21.3.1999, he got Ramavtar medico-legally examined and as per injury report (Exhibit-D/1), he had suffered gun shot injury. This witness inquired from Ramavtar as to how he suffered gun shot injury and Ramavtar informed him that he received injury in the occurrence.

It is to be noted that for causing injury to accused Ramavtar, a cross case was also registered and in the trial of the cross case, Matadeen (P.W. 12) was convicted for the offence under Section 307 IPC and sentenced to seven years R.I. and Girraj Singh was acquitted.

We shall decide the cross appeal bearing No. 279/2006 by a separate judgment of even date.

It stands proved on record that the accused Ramavtar as per injury report (Exhibit-D/1) had suffered a very severe injury on left upper arm near elbow. There was an entry and exist wound. Ramavtar was examined on 25.3.1999 and doctor had opined the duration of the injury to be 2-4 days. It is a case of the defence that even though Ramavtar was arrested on the day of occurrence, his arrest was reflected in record on 25.3.1999 and thus, on the said date, he was not medico-legally examined but later on 25.3.1999.

Be that as it may, the prosecution has suppressed the origin and genesis of the occurrence by not explaining the gunshot injury i.e. entry and exit wound on the left upper arm on the person of the accused, Ramavtar.

The Hon''ble Apex Court in the case of Lakshmi Singh and Others Vs. State of Bihar, AIR 1976 SC 2263 : (1976) CriLJ 1736 : (1976) 4 SCC 394 : (1976) SCC(Cri) 671 , has held as under:--

"This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the pre-sent case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab Criminal Appeal No. 266 of 1971 decided on April 25, 1975 : which was also a murder case, this Court, while following an earlier case, observed as follows:

In State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 :) one of us (Untwalia, J., speaking for the Court, observed as follows:

In a situation like this when the prosecution fails to explain the in juries on the person of an accused, depending on the facts of each case, any of the three results may follow:

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all.

The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.

It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) That the prosecution has sup- pressed the genesis and the origin of the occurrence and has thus not presented the true version:

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."

Once we hold that the injury on the person of the accused Ramavtar was not explained and origin and genesis of the occurrence was suppressed by the prosecution witnesses, another question which arises for consideration is that Ramavtar after receiving injury on his right forearm cannot fire a shot, which is attributed to him and thus, he had not caused injury on the person of Omwati (P.W. 14).

Furthermore, in the present case, the prosecution witnesses are not totally reliable. They very conveniently made departure from their initial version, which was, ''immediately when the tractor had damaged the Chabutara, the occurrence had ensued''. It is to be noted that in a cross case, Matadeen (P.W. 12) has been convicted and sentenced for the offence under Section 307 IPC and had been sentenced to undergo seven years R.I. for causing injury on the forearm of Ramavtar. As per the prosecution case, on the tractor three persons were travelling, namely Radhavallabh, Ramavtar and Vishambhar. The prosecution witnesses later inflated number of accused and introduced eight other persons as accused.

To us, it is apparent that the occurrence had taken place immediately when Chabutara was damaged, between the complainant and the accused Radhavallabh, Ramavtar and Vishambhar and at that time, Matadeen (P.W. 12) had also fired a shot, which hit Ramavtar. Thus, the occurrence was a sudden affair. It is not a case of previous enmity. However, we cannot make out as to whether Matadeen (P.W. 12) had fired first shot which hit Ramavtar or Radhavallabh had fired first shot causing injury to the deceased, Gulab Singh, which resulted into his death. One thing is certain that Ramavtar having received the injury on right arm cannot cause injury to Omwati (P.W. 14). In the occurrence, gun shot injury has been received only by deceased Gulab Singh and Omwati (P.W. 14). Therefore, it can be safely inferred that the deceased, Gulab Singh and the injured, Omwati had received injury at the hand of Radhavallabh. Considering that the occurrence was a sudden affair and at the same time Matadeen (P.W. 12) and the accused, Radhavallabh had fired a shot and we are unable to determine who fired the first shot, we can safely say that the mutual conflict had suddenly developed due to causing of damage to Chabutara by rash and negligent driving of the tractor.

It was held by the Hon''ble Supreme Court in the case of Jumman and Others Vs. The State of Punjab, AIR 1957 SC 469 : (1957) CriLJ 586 as under:--

"(24). In such a case where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides? We are of the view that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under S.300, I.P.C., Exception 4.

(25). The matter has to be viewed in this way. It is clear that there was no pre-meditation and therefore when the contending factions met accidentally and attacked each other, the conflict resulted in a sudden fight, in the heat of passions, upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. On the finding that both the parties had arms, there was no undue advantage taken by either. Hence Exception 4 to S.300, I.P.C., applies with the result that the offence is under S.304 (Part I), I.P.C."

A Division Bench of this Court in Buddhi and Ors. v. State of Rajasthan [ 2007 (1) RCC 228 ], relying upon Dharman Vs. State of Punjab, AIR 1957 SC 324 : (1957) CriLJ 420 held as under:--

"13. Coming to the incident that occurred with deceased Saltu we find that he sustained injuries in the course of sudden fight ensued in the field of accused party. The complainant party was also armed with deadly weapons and as many as eight accused persons received lacerated and incised wounds on the vital parts. In Dharman Vs. State of Punjab, AIR 1957 SC 324 : (1957) CriLJ 420 the Supreme Court held that when two such contending parties, each armed with sharp edged weapons, clashed and in the course of a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner and that the case against the accused falls within Exception 4 of Section 300 of the Indian Penal Code and the accused who caused the injury was guilty under Part I of Section 304 and not under Section 302 of the Indian Penal Code."

Thus, we hold that the occurrence was a sudden affair and in the occurrence, the accused, Radhavallabh and the complainant, Matadeen (P.W. 12) had fired shots. We after invoking Exception 4 of Section 300 IPC hold that it is a case of individual liability. We disbelieve the prosecution version that Ramavtar fired a shot at Omwati (P.W. 14), as already stated by us that Ramavtar having suffered injury on the right forearm, could not have fired the shot. Thus, we acquit Ramavtar of the offence under Section 307 IPC for which he was substantively convicted.

Consequently, we are of the view that Section 149 IPC cannot be applied. Since, Virndavan has caused no injury in the occurrence and has not played any overt role, he stands acquitted of all the offences. Ramavtar stands acquitted of all the offences, as we have already held that due to sufferance of injury he could not cause injury. Ramnath also stands acquitted of all the offences.

Similarly, Ravikant and Ramsevak stand convicted only for the offence under Section 323 IPC and they are acquitted of offences under Sections 147, 302/149 and 307/149 IPC.

The trial court had awarded sentence of one year to Ravikant and Ramsevak under Section 323 IPC. In the present case, the occurrence had taken place in the year 1999. Both the appellants have faced protracted trial and are in corridors of court for the last fifteen years. Therefore, we reduce their sentence under Section 323 IPC from one year to the period already undergone.

In view of the disposal of the appeal, in above terms, we order that the appellants, namely Virndavan, Ramavtar, Ramnath, Ravikant and Ramsevak be released forthwith, if in custody and not required in any other case.

Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants, namely Virndavan, Ramavtar, Ramnath, Ravikant and Ramsevak are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon''ble Apex Court.