Rajasthan High Court - Jaipur
Dhanraj And Ors. vs State Of Rajasthan on 6 May, 2003
Equivalent citations: RLW2004(2)RAJ850, 2003(4)WLC621
JUDGMENT
F.C. Bansal, JJ.
1. This appeal is directed against the judgment dated August 13, 1997 passed by learned Sessions Judge, Baran in Sessions Case No. 2/97 whereby the appellants were convicted and sentenced as under:-
Bheemraj @ Hansraj @ Bhimsingh u/s 302 IPC Life imprisonment with a fine of Rs. 5.000/-, in default of payment of fine to further undergo six months' R.I. Dhanraj & Mst. Sheela Bai each u/s 302 read with 34 IPC Life imprisonment with a fine of Rs. 5,000/-, in default of payment of fine to further undergo six months' R.I.
2. Briefly stated the facts of the prosecution case are that on November 4, 1996 at 4:45 P.M. PW. 5 Mukut Singh Rathi S/o Radha Kishan Rathi, R/o-village Tisaya submitted a written report Ex. P7 at Police Station Baran Sadar. It was, interalia, alleged in the report that today at 12'O clock in the noon he, his brother Ramdayal and his father Radha Kishan were irrigating their field. At that time accused-appellant Dhanraj told them that he would irrigate his field. His father replied that they will irrigate their field first and thereafter he may irrigate his field. On account of this the appellants Dhanraj and Bheemraj grappled his father. Dhanraj gave a Gandasi blow on the head of his father Radha Kishan. Bheemraj inflicted injury with Kuntiya on the head of Ramdayal and wife of Dhanraj gave a lathi blow on his head. When he made hue and cry, Mangilal and Mandanlal came at the place of incident. On seeing them the appellants fled away. His father and brother are lying unconscious in the field. On the basis of this written report Ex. P.7, a case under Section 447, 307 and 323 read with 34 IPC was registered by the in-charge, Police Station Baran Sadar and investigation commenced. Formal FIR is Ex.P.8. Both Radha Kishan and Ramdayal died on the same day and thereafter Section 302 IPC was added. PW 16 Madanpal Singh, the Investigating Officer reached on the spot on the same day and at around 5:00 P.M. he inspected the site and prepared Site Plan Ex. P.2. Photographs of the place of occurrence were taken. Inquest Report of the dead body of Ramdayal Ex. P.1 was also prepared. Blood smeared soil and control soil were seized and sealed vide Ex.P.3 to Ex.P.6. Inquest Report of the dead body of Radha Kishan Ex.P.9 was prepared on November 5, 1996 in Government Hospital, Baran, Autopsy on the dead bodies' of Radha Kishan and Ramdayal was conducted on November 5, 1996 by PW 17 Dr. Purshottam Jhanwar, Medical Jurist, Government Hospital, Baran and he prepared post-mortem reports' Ex. P.28 and Ex. P.29 respectively. 'Towel' and 'Shirt' which deceased Radha Kishan was wearing at the time of incident were seized and sealed vide Seizure Memo Ex. P.18. 'Pent', Baniyan, Shirt and handkerchief belonging to deceased Ramdayal were also seized and sealed vide Seizure Memo Ex.P.19. Statements of the witnesses were recorded under Section 161 Cr.P.C. The appellants were arrested and on their information and at their instance Gandasi, Kuntiya and Lathi were recovered and sealed vide Ex.P.11, Ex.P.12 and Ex.P.13 respectively. On completion of investigation, a charge-sheet was laid in the Court of Additional Chief Judicial Magistrate, Baran who committed the appellants for trial to the Court of learned Sessions Judge, Baran.
3. Learned Sessions Judge framed charges under Sections 447, 302 and in alternate 302 read with 34, 324 and 323 of the Indian Penal Code against the appellants Bheemraj @ Hansraj and Dhanraj. Charges under Sections 447, 302 read with 34, 324 and 323 of the Indian Penal Code were framed against the appellant Sheela Bai. The appellants denied the charges and claimed to be tried.
4. In order to prove the charges the prosecution examined as many as 19 witnesses. In their statement recorded under Section 313 Cr.P.C. the appellants pleaded innocence. In defence appellant Bheemraj examined himself under Section 315 Cr.P.C.
5. Learned Sessions Judge, after hearing the submissions made by both the parties, convicted and sentenced the appellants as indicated here-in-above.
6. We have heard Mr. S.R. Bajwa, learned senior counsel for the appellants, learned Public Prosecutor and have also perused the material on record.
7. PW 17 Dr. Purshottam Jhanwar, Medical Jurist, Government Hospital, Baran stated that on November 5, 1996 at 10:30 A.M. he conducted post-mortem examination on the dead body of Radha Kishan S/o Gaindi Lal Rathi, aged 55 years, R/o-Tisaya and found following injuries on his person:-
EXTERNAL INJURIES (1) Incised wound 5 x 5cm. x bonedeep on left side of scalp.
(2) Incised wound 3 x 2 x 1/2cm. near injury No. 1.
(3) Incised wound 2 x 2 x 1/4cm. on top of scalp.
(4) Incised wound 4 x 2 x 1/2cm. on occipital part.
INTERNAL INJURIES "Scalp, Skull Bones (Vertex)- Injury as described.
Membranes, brain, base of skull, vertebrae-Ruptured beneath the wound of left side of scalp.
8. Dr. Jhanwar also stated that in his opinion the case of death was injury to the brain and haemorrhagic shock. He prepared Post-mortem Report Ex.P.28. All the injuries were ante-mortem in nature and were sufficient in the ordinary course of nature to case death. Death occurred within last 24 hours.
9. Dr. Jhanwar also stated that on the same day at 9:30 A.M. he conducted the post-mortem examination on the dead body of Ramdayal S/o Radha Kishan and found following injuries:-
EXTERNAL INJURIES (1) Incised wound 5 x 4cm x deep upto brain tissue on left scalp.
(2) Incised wound 3 x 2 x 1/4cm. on right side of scalp.
(3) Incised wound 2 x 2 x 1/4cm. on top of scalp.
INTERNAL INJURIES Scalp, Skull Bones (Vertex)-Injury as described.
Membranes, brain, base of skull, vertebrae-Ruptured beneath the wound of left side. Brain matter coming out of wounds.
10. Dr. Jhanwar further stated that the cause of death was injury to the brain and haemorrhagic shock. All the injuries were ante-mortem in nature. Injury on the left side of head was sufficient in the ordinary course of nature to cause death. He prepared Post-mortem Report Ex.P.29. Death occurred within last 24 hours.
11. On close scrutiny of the testimony of Dr. Jhanwar we find it reliable. Learned Sr. counsel appearing for the appellants also has not challenged the veracity of Dr. Jhanwar who is an independent and impartial witness. Therefore, we have come to the conclusion that the prosecution has succeeded in proving that both Radha Kishan and Ramdayal met with the homicidal death.
12. Learned Sr. counsel for the appellants contended that injuries of appellant Bheemraj and Dhanraj have not been explained by the prosecution. The genesis of the occurrence has been withheld by the prosecution. Learned Sr. counsel further contended that if injuries were caused by appellants Bheemraj and Dhanraj to both the deceased, they were caused while exercising the right of private defence of body and, therefore, no offence was committed by them. It was also contended by learned Sr. counsel that PW 4 Dhapubai who is widow of deceased Radha Kishan and PW 9 Chhitar Lal were not named in the written report Ex.P.7 and, therefore, their testimony cannot be relied upon. PW 10 Madanlal who was named in Ex.P.7 was declared hostile by the prosecution. Learned Sr. counsel further contended that PW 5 Mukut, who is the son of deceased and PW 10 Madanlal have given contradictory statements and, therefore, they are not the reliable witnesses and no reliance can be placed on their testimony. Hence, the appeal of the appellants deserves to be allowed. In alternate it was also argued by learned Sr. counsel that it is a case of free fight and, therefore, each appellant is responsible for his individual act. From the testimony of PW 9 Chhitar Lal and PW 10 Madanlal it is evident that appellants Dhanraj and Mst. Sheela Bai did not cause any injury to both the deceased and, therefore, they could not be convicted with the aid of Section 34 IPC and their appeal deserves to be allowed. Learned Sr. counsel placed reliance on Amrik Singh and others v. State of Punjab (1). Learned Public Prosecutor has supported the impugned judgment and canvassed that the testimony of PW 4 Dhapubai and PW 9 Chhitar Lal cannot be discarded only on this ground that they were not named in the written report Ex.P.7. Learned P.P. contended that from the ocular testimony of PW. 4 Dhapubai, PW. 5 Mukut, who himself had sustained injuries in the incident, PW 9 Chhitar Lal and PW 10 Madanlal it stands proved that all the appellants had the common intention to cause death of Radha Kishan and Ramdayal and in furtherance of that common intention, appellant Bheemraj had caused injuries with sharp edged weapon on the person of Radha Kishan and Ramdayal which resulted in their death, therefore, all the appellants have rightly been convicted by the trial Court.
13. We have given our thoughtful consideration to the rival submissions made by learned Sr. counsel appearing for the appellants and learned Public Prosecutor appearing for the State. We now proceed to scan the ocular testimony of the prosecution.
14. PW 3 Durga Shankar, who is the son of deceased Radha Kishan stated that on receiving information from his mother about the incident he went to the place of occurrence where he found his brother dead and his father having injuries on his person. Thus it is clear from the testimony of PW 3 Durga Shankar that he was not the eye-witness of the occurrence. PW 4 Dhapubai is the widow of deceased Radha Kishan. In her deposition she stated that on the date of incident at around 1:00 P.M. she went to her field with tea. When she reached near the field she found Dhanraj. Bheemraj, Smt. Sheela and Smt. Kesar giving beating to her son Ramdayal and her husband Radha Kishan. Dhanraj and Bheemraj were having Kuntia and Gandasi. Sheela and Kesar were armed with lathi and Kuntia. Her son Mukut Singh was there and he was attempting to save his father. PW 4 Dhapubai further stated that there were injuries on the head of her husband and son. It was further stated by her that Chhitar Mali and Madan Gujar were present there and they intervened to rescue Radha Kishan and Ramdayal. After having caused injuries on the person of Radha Kishan and Ramdayal, all the appellant fled away. Thereafter she went to her son Durga Shankar and narrated the incident to him. Thereafter she and Durga Shankar came to the place of occurrence. On her return she found Ramdayal dead and her husband alive. Thereafter they took Radha Kishan to hospital, Baran but when they reached, her husband Radha Kishan succumbed to his injuries. But in her cross-examination PW 4 Dhapubai stated that she came to know about the incident when she was in Khalihan. She also stated that prior to the date of incident she had never gone to her field with tea in the afternoon. She also stated that appellant Dhanraj was having Kuntia and appellant Bheemraj was armed with Gandasi whereas PW 5 Mukut stated that Bheemraj was armed with Kuntia and Dhanraj was having Gandasi. It was also stated by Dhapubai in her cross-examination that during beating Radha Kishan and Ramdayal did not run away but from the testimony of PW 5 Mukut, PW 9 Chhitar Lal and PW 10 Madanlal it is evident that when Ramdayal and his father Radha Kishan were attacked by appellant Bheemraj, Ramdayal started running towards his field to save his life but Bheemraj chased him and caused injuries on his person. Having gone through the entire evidence of PW 4 Dhapubai we are of the view that she was not the eye-witness of the occurrence. Written report Ex.P.7 was submitted at the Police Station by her son Mukut but she was not named in it and this fact also proves that she had not witnessed the incident.
15. PW 5 Mukut is the son of deceased Radha Kishan but only on this ground his entire testimony cannot be discarded. In Lehna v. State of Haryana (2), it was held that relation by itself cannot be a ground to doubt the testimony of such witnesses. He had also sustained injuries in the incident. PW. 7 Dr. Purshottam Jhanwar stated that at 9:00 A.M. on November 5, 1996 he examined Mukut S/o Radha Kishan Rathi, aged 18 years, R/o-Tisaya and found following injuries on his person:-
(1) Incised wound 3x1x1/4 cm. on right side of scalp.
(2) Swelling 2x3 cm. on right hand.
16. Dr. Jhanwar further stated that injury No. 1 was caused by sharp weapon and injury No. 2 by blunt weapon. Both the injuries were simple in nature and their duration was within one day. He prepared Injury Report Ex.P.30. Thus it is established by the statement of Dr. Jhanwar that when Mukut was examined on November 5, 1996 at 9:00 A.M., the aforesaid two injuries were found on his person. PW 5 Mukut stated in his deposition that he had also sustained injuries in the incident. In Surjeet Singh v. State of Punjab (3), it was held that- "nephew of the deceased, who had suffered grievous injuries in the occurrence was a natural and stamp witness. In Sardul Singh v. State of Punjab (4), it was indicated that the presence of witness, who received injuries during the course of incident cannot be doubted." Bankiya v. State of Maharashtra (5), was the case wherein Hon'ble Supreme Court observed that the presence of the injured witness at the scene of occurrence cannot be doubted and being victim themselves, they would not leave out real assailants and substitute them with innocent persons." Therefore, the presence of PW 5 Mukut at the time of the incident cannot be doubted.
17. PW 5 Mukut stated that on the fateful day at 12'O clock when he, his father and brother Ramdayal were irrigating their mustard crop, Bheemraj and Dhanraj told them that they would irrigate their field first but his father replied that as they were already irrigating their crop, they would continue to irrigate their crop. On this reply Dhanraj and Bheemraj grappled his father. Thereafter his father alongwith he and Ramdayal came back to his house. It was further stated by PW 5 Mukut that from their house they went again to their field. On their return Dhanraj, Bheemraj and Sheela armed with Kuntia, Gandasi and lathi came to their field. Dhanraj gave a Gandasi blow on the head of his father. His father became unconscious and fell down. Bheemraj inflicted injury with Kuntia on the head of Ramdayal. Sheela gave a lathi blow on his (PW 5 Mukut) head. She also caused injuries on the person of his father and brother with lathi when they were lying in the field. Mukut further stated that the incident was witnessed by his mother, Chhitar Lal and Madanlal. His brother Ramdayal died instantaneously. They took his father to hospital, Baran but when they reached there, his father also succumbed to his injuries. In his cross-examination Mukut stated that after first scuffle appellants also returned to their house. It was further stated by PW 5 Mukut that during occurrence Ramdayal started running but the appellants inflicted injuries on his person. It would be pertinent to mention here that at the time of medical examination, injury found on the head of PW 5 Mukut was incised wound caused by sharp weapon.
18. PW 9 Chhitar Lal stated that when Radha Kishan, Ramdayal and Mukut were irrigating their crop, all the appellants were abusing them. Dhanraj was armed with Kuntia, Bheemraj with lathi and Sheela also was having lathi in her hand. Ramdayal was having Gandasi, Radha Kishan and Mukut both were armed with lathies. He further stated that when Bheemraj gave a lathi blow on the wrist of Ramdayal, his (Ramdayal) Gandasi was dropped. Thereafter appellant Bheemraj lifted that Gandasi and inflicted injuries with Gandasi on the head of Radha Kishan who fell down. Chhitar Lal further stated that after having caused injuries to Radha Kishan, appellant Bheemraj chased Ramdayal and inflicted injuries with Gandasi on his head. Sheela caused injury with Kutera on the person of Mukut. In his cross-examination he stated that he did not see any injury on the person of Bheemraj and Dhanraj at that time. It was not stated by PW 9 Chhitar Lal that appellant Dhanraj caused any injury on the person of both the deceased. It is true that PW 9 Chhitar Lal was not named by Mukut in his written report Ex.P.7 but only on this ground the entire evidence cannot be disbelieved. In Bhagwan Singh v. State of Madhya Pradesh (6) it was held that the statement made by witness at the trial cannot be discarded on the ground that his name was not mentioned in the FIR. In view of the aforesaid decision of the Apex Court, the testimony of Chhitar Lal, who is an independent witness, cannot be discarded only on this ground that he was not named in written report Ex.P.7. In our opinion, the only legal requirement is to scrutinize and scan his testimony without utmost care and keeping in view the aforesaid fact.
19. PW 10 Madanlal, who was named in written report Ex.P.7 stated that mother of Ramdayal came to his house and told that a scuffle had taken place on the field between Dhanraj and her son Ramdayal and her husband. She also asked her to go to there and persuade them not to fight. Thereafter he went to the place of occurrence and he found both the parties standing there. He further stated that he asked Dhanraj not to fight but he replied that they would fight today. Dhanraj was having Kuntia. Both Bheemraj and Sheela Bai were armed with lathies. Ramdayal was having Gandasi. PW 10 Madanlal further stated that when appellants started causing injury on the person of Ramdayal, Gandasi which was in the hand of Ramdayal was dropped. Thereafter Bheemraj took that Gandasi and caused injuries on the head of Radha Kishan. Radha Kishan fell down. Thereafter appellant Bheemraj chased Ramdayal who was running and caused injuries with Gandasi on his head. Ramdayal also fell down. It was further stated by Madanlal that appellant Sheela did not cause injury to anybody. It was also stated by him that Mukut also sustained injury on his head but he could not say that who had caused injury to him. PW 10 Madanlal was declared hostile by the prosecution but on this ground alone his testimony cannot be totally rejected.
20. In Balu Sonba Shinde v. State of Maharashtra (7), the Apex Court held that-
"While it is true that declaration of a witness to be hostile does not ipso facto reject the evidence and it is now well settled that the portion of evidence being advantageous to the parties may be taken advantage of- but the court before who such a reliance is placed shall have to be extremely cautious and circumspect in such acceptance. Reference in this context may be made to the decision of this Court in State of U.P. v. Ramesh Prasad Misra {(1996) 10 SCC 360} wherein this Court stated: (SCC P. 363, para 7) "It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted."
21. From Site Plan Ex.P.2 it is evident that when the Investigating Officer reached at the place of occurrence he found the dead body of Ramdayal in his field at place marked as 'A1' in Site Plan Ex.P.2. Blood was also found by him on the way situated adjacent to the field of the appellants at the place marked as 'A2' in Site Plan Ex.P.2. In Site Plan, 'Dhora' (water-course) from canal has been shown which shows that both the parties used to irrigate their crop with the canal water. When PW 14 Udairaj, the Investigating Officer reached at the spot he found water flowing in the water-course but before the incident the complainant party as well as the appellants had not irrigated their crop on that day as is evident from Site Plan.
22. PW 17 Dr. Purshottam Jhanwar also stated that on police requisition he examined appellant Bheemraj S/o Ramnarain and found following injuries on his person:-
(1) Swelling 3x3 cm. on right forearm.
(2) Abrasion with scab 1/2x1/2 cm. on right elbow.
(3) Abrasion with scab 1/2x1/2 cm. above right knee.
(4) Swelling 3x2 cm. on left ankle.
23. Dr. Jhanwar further stated that all the injuries were caused by blunt weapon. Injury No. 2, 3 and 4 were simple in nature and for injury No. 1 X-ray was advised. From X-ray plate it was found that injury No. 1 was grievous in nature. Duration of injuries was within 3 to 4 days. He prepared Injury Report Ex. D4 and X-ray Report Ex. D5.
24. It was further stated by Dr. Jhanwar that on November 7, 1996 he examined appellant Dhanraj S/o Ramnarain and found following injuries on his person:-
(1) Lacerated wound 1x1/2 cm. on right thump.
(2) Abrasion with scab 1x1 cm, above right elbow.
(3) Abrasion (two) with scab 1/2x1/2 cm. (each) on back of right shoulder.
25. Dr. Jhanwar also stated that all the injuries were simple and caused by blunt object. Duration of injuries was within 3 to 4 days. He prepared Injury Report Ex.D.6.
26. As already stated, in defence DW1 appellant Bheemraj was examined under Section 315 Cr.P.C. He stated that when he was irrigating his crop, Radha Kishan and his son Mukut stopped the flow of water and when he objected, Radha Kishan, Ramdayal and Mukut inflicted injury on his person and on the person of his brother Dhanraj. Ramdayal gave a Gandasi blow on his right hand which resulted in fracture. He also stated that Radha Kishan, Mukut and Ramdayal wanted to take water into the field of Shrilal Kumhar.
27. On close and careful scrutiny of the statements of PW 5 Mukut, PW9 Chhitar Lal, PW. 10 Madanlal, PW 17 Dr. Purshottam Jhanwar and DW 1 appellant Bheemraj, we have found the following facts proved beyond reasonable shadow of doubt:-
(i) There was no enmity between the complainant party and the appellants prior to the incident.
(ii) PW 5 Mukut, PW 9 Chhitar Lal and PW 10 Madanlal are partly reliable witnesses and their testimony is trustworthy qua appellant Bheemraj alone.
(iii) Appellant Bheemraj alone had caused injuries with Gandasi (sharp edged weapon) on the person of Radha Kishan and Ramdayal.
(iv) Appellants Dhanraj and Sheela caused no injury on the person of both the deceased and Mukut.
(v) Appellants Dhanraj and Bheemraj also had sustained injuries in the same incident.
(vi) Injuries sustained by appellants Dhanraj and Bheemraj have not been explained by the prosecution.
(vii) Radha Kishan and Ramdayal met with the homicidal death because of injuries sustained by them in the incident.
(viii) In the morning of the said day dispute arose between the parties over irrigating their land with canal water. The complainant party as well as the appellants wanted to irrigate their crop first.
(ix) After first scuffle, the complainant party as well the appellants returned to their home and after sometime went again to their fields armed with lathies and Gandasies at around 12'O clock. Again the complainant party as well as the appellants wanted to irrigate their crop first to which the other party did not agree and then the incident took place in which Radha Kishan, Ramdayal, Mukut, appellants Dhanraj and Bheemraj sustained injuries. In these circumstances, we have come to the conclusion that both the parties had gone again to their field to fight. It thus appears to be a case of free fight.
28. In Surgyani and Ors. v. The State of Rajasthan (8), the Division Bench of this Court held that:-
"In Ahmed Sher v. Emperor (9), it was observed as under:
"A free fight is one where both sides mean to fight from the start, go out to fight and there is a pitched battle. The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival commanders.
These observations were quoted with approval by their Lordships of the Supreme Court in Gajanand v. State of U.P. (10).
In a free fight, there is no common object or common intention. Since there is no common object in a free fight, the accused in such a case cannot be convicted by having recourse to Section 149 I.P.C. In Ishwar Singh v. State of U.P. (11), their Lordships observed in para 7 as under:
"Having regard to the injuries sustained by some of the prosecution witnesses and also by two of the accused, it seems that there was a free fight between the two sides. The Defence version of the occurrence may not also be quite true, but considering all the circumstances, we do not think it is possible to say with certainty that the accused were the aggressors though undoubtedly the prosecution side got the worse of it after the fight was started. If really the accused were not the aggressors, no case either under Section 147 or Section 148 of the Penal Code can be maintained against them, and then it is for the prosecution to prove the individual assaults of which there is no evidence. The conviction of appellants Illam Singh, Harpal, Brahm Singh and Deep Chand under Section 324 and Section 323 of the Penal Code, founded against each of them on the basis of Section 149 of the Code is not therefore sustainable."
In K.N. Virji v. State of Gujrat (12), it was observed:
"Where there was a melee at the time of the 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 only those persons who are proved to have caused injuries or death can be held guilty of the offence individually committed by them:"
In Vishwas v. State of Maharashtra (13), it was observed:-
"It is well settled that in a free fight no right of private defence is available to either party and each individual is responsible for his own act."
We are quite conscious of the fact that merely because the injuries are found on the persons of the members of the accused party, a case of free fight does not spring-up. It is equally true that the mere presence of injuries on the accused persons is also not sufficient to show that a right of private defence of person was available to him. Whether a right of private defence of person was available or whether it is a case of free fight, depends on the given facts and circumstances in a case. The case will have to be judged in the background of all the available circumstances, antecedent to the incident during the incident and post incident, the evidence of the prosecution witnesses that it was a one side attack on them by the appellants, appears to be baseless. When the Investigating Officer visited the site, the embankments were found cut. There is no positive evidence to show as to which of the parties first indulged in cutting the embankment. We therefore, find it difficult to accept that the trouble started in the manner suggested by the prosecution, The non-explanation of the injuries on the persons of the appellants and their associates by the prosecution and the other infirmities in the prosecution case do not permit us to believe that the trouble originated in the manner alleged by the prosecution. We are of the considered view that both the parties arrived well armed on the spot to cut the embankment. They, thus, came with a determined object to cut the embankments even by the use of violence. The members of both the parties weilded their weapons against each other. We have, therefore, no hesitation to say that here is a case of free fight where the parties meant to fight with the other.
We are, therefore, unable to maintain the finding of the court below that the appellants were the aggressors. We have held above that it is a case of free fight. As such there is no scope to invoke Section 34 or 149 I.P.C. As such we are unable to maintain the conviction of accused Babu, Bhawad, Prabhu and Surgyani under Section 302 read with Section 149 and 147 or 148 I.P.C. However, they will be responsible for the injuries caused by them to the victims."
29. In Mangalsingh and Ors. v. State of Madhya Pradesh (14), the Madhya Pradesh High Court held that "Since, it is a case of free fight between the two parties, the question of formation of unlawful assembly and common intention does not arise. Each accused is, therefore, responsible of the individual act committed by him."
30. Hon'ble the Supreme Court in Onkarnath Singh and Ors. v. The State of U.P. (15), has indicated that:-
"The question is, what is the effect of this non-explanation of the injuries of Parasnath. This is a question of fact and not one of law. Answer to such question depends upon the circumstances of each case. This Court has repeatedly pointed out that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused. (See AIR 1971 SC 2233) (supra), and Bhagwan Tana Patil v. State of Maharashtra, Cr. Appeal No. 78/79, D/-9-10-1973 = (reported in AIR 1974 SC 21 = 1974 Cri LJ 145).
Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the Court will scrutinise their evidence with care. Each case presents its own features. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused, but it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self defence by the complainant party. For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises."
31. In another case Vishvas Aba Kurane v. State of Maharashtra (16), Hon'ble the Apex Court while expressing the same view held that it is well settled that in a free fight, no right of private defence is available to either party and each individual is responsible for his own acts.
32. In Munir Ahmad and Ors. v. State of Rajasthan (17), the Apex Court held that "The submission that the injuries caused to the deceased Saduleh Khan and PW-1 and PW-3 were in self-defence has been rightly rejected by both the Courts below on the ground that in a free fight neither side has a right of private defence."
33. In Amrik Singh and others v. State of Punjab (supra), which has been cited by learned Sr. counsel appearing for the appellants, Hon'ble the Apex Court indicated as under:-
"The High Court, further held that this is a case of free fight. In coming to such a conclusion, the High Court has taken into consideration the fact that the accused as well as the deceased and PWs appeared at the place of occurrence armed with weapons and the quarrel took place immediately. This is a question of fact which does not warrant any interference. The question as to who commenced it first may not be much relevant and it has also been held in a number of cases that the participants should be liable for their individual acts."
34. The aforementioned decisions are fully applicable to the facts of this case and in view of the principles laid down by these decisions, right of private defence is not available to the appellants and each appellant is responsible of his individual act. They cannot be held guilty with aid of Section 34 IPC.
35. As stated above, it has been proved beyond reasonable doubt by the prosecution that appellant Bheemraj had caused injuries with Gandasi on the person of Radha Kishan and Ramdayal which resulted in their death. He had caused as many as 4 injuries on the head of Radha Kishan and 3 injuries on the head of Ramdayal. When Ramdayal was running to save his life, appellant Bheemraj chased him and caused injuries. In the opinion of Dr. Purshottam Jhanwar all the injuries sustained by Radha Kishan were sufficient in the ordinary course of nature to cause death. Dr. Jhanwar also stated that injury on the left side of head of deceased Ramdayal was sufficient in the ordinary course of nature to cause death. In these circumstances, we are of the view that appellant Bheemraj had caused injuries on the person of both the deceased with the intention to cause such injury which was sufficient in the ordinary course of nature to cause death. Thus he has rightly been convicted and sentenced for the offence under Section 302 IPC and his appeal deserves to be dismissed.
36. So far as appellants Dhanraj and Mst. Sheela Bai are concerned, they had not caused any injury to Radha Kishan and Ramdayal. They have been convicted under Section 302 read with 34 IPC by the trial Court. For the aforesaid reasons and in view of the aforementioned decisions, in a case of free fight they could not be convicted with the aid of Section 34 IPC and their conviction and sentence is unsustainable.
37. In the result, the appeal of the appellant Bheemraj @ Hansraj @ Bhimsingh stands dismissed. His conviction and sentence under Section 302 IPC is maintained.
38. The appeal of appellants Dhanraj and Mst. Sheela Bai stands allowed. Their conviction and sentenced is set-aside and they are acquitted of the charge under Section 302 read with 34 IPC. They are on bail. Their bail bonds stand cancelled.