Shambhoo Singh, J.
1. This judgment disposed of Cr.A. No. 532/93 and 543/93 as they are directed against the judgment & Order dated 5-10-93 passed by IVth A.S.J. Dhar in S.T. No. 183/91 whereby all the appellants were convicted for offence under Section 148 I.P.C. and appellants Punja & Malsingh for offence under Section 302 I.P.C. and appellants Khuman, Ansingh, Bhavsingh and Gobariya for offence under Sections 302/149 I.P.C. and sentenced to 3 years R.I. and life imprisonment respectively.
2. The prosecution case, in brief, was that on 12-2-91 Banesingh (P.W. 3), his brother Bahadur (P.W. 5), their father deceased Bhagiya, Bhagiya's nephew Limji (P.W. 4), Rupla (P.W. 8), appellants and acquitted accused Nansingh, Mukut, Dhaniya had gone to Harsinga Tekri to see 'Shivratri-Mela' and to worship God Shiva. In this 'Mela', thousands of tribal people armed with weapons come in groups. They consume liquor, dance, sing and beat drums. The appellants and the complainant party had animosity as the appellant Punja had kidnapped Bakhtibai, wife of Rupla (P.W. 8) for which he was prosecuted. When at about 5 p.m. the complainant party was returning from Mela, the appellants and their associated made 'Kurrati' - loud & shrill voice in a particular way. Generally the tribal people before attack, give alarm by making shrill noise indicating their intention to assault. It is commonly known as 'Kurrati' or 'Bhapkari'. The appellants and their associates started attacking the complainant party. The appellants Malsingh and Punja gave arrow-shots to deceased Bhagiya which landed on his chest. The arrow of Ansingh hit his back. Gobariya fired one shot from his 12 bore gun which hit the deceased Bhagiya and Banesingh, Bhavsingh dealt one Dhariya-blow to Banesingh which caused injury on his right shoulder. Khuman also gave arrow-shot which hit the heel of Limji (P.W. 4). The police immediately came on the spot. Banesingh narrated the incident to S.O., N.R. Gurjar (P.W. 9) who recorded it as 'Dehati-Nalishi', Ex. P-2. Gurjar sent Bhagiya to District Hospital but he died in the way. The Investigating Officer Gurjar conducted inquest on the dead-body and prepared report, Ex. P-7. He also sent Banesingh and Limji for medical examination. Dr. K.S. Chouhan (P.W. 6) found arrow-blade embedded in the right heel vide report Ex. P-3. On the same day Dr. S.C. God (P.W. 10) examined Banesingh. He found one incised wound 3 cm x 1/2 cm. on his right shoulder and one stab wound on his left fore-arm vide report Ex.P-29. Dr. O.P. Goyal (P.W. 11) conducted autopsy on the dead-body of Bhagiya and found the following:
1. Punctured wound on right chest 1' below nipple 1' x 1/2' x 3'.
2. Punctured wound on right side of chest 1' x 1/2' x 5'.
3. Gun-shot wound on right leg 2' above the knee, 1 cm x 1/2 cm.
4. Gun-shop wound on left thigh 1 cm x 3/4 cm.
Dr. Goyal opined that the deceased died due to shock and asphyxia, as a result of the injuries caused on the chest of the deceased vide report Ex. P-13. The Investigating Officer visited the spot and prepared spot-map Ex. P-11. He seized stained and unstained earth from the place of occurrence. During the investigation, N.R. Gurjar arrested the appellants Malsingh, Ansingh, Punja, Khuman and acquitted accused and on their information recovered bows from their possession. Investigating officer also arrested Gobariya and on his information given under Section 27 of the Evidence Act recovered his 12 bore gun which was seized vide Ex. P-6. Farsa was also recovered at the instance of appellant Bhavsingh. After completion of investigation, challan was filed. The appellants and the acquitted accused pleaded not guilty and false implication. The defence of Malsingh, Bhavsingh and Ansingh was of alibi. The learned trial Judge acquitted the co-accused Nansingh, Mukut and Dhaniya and convicted & sentenced the appellants as stated above. Hence, these appeals.
3. Shri Shukla, LC for appellants Punja, Khuman & Gobariya (Cr. A. No. 532/93) and Shri Jaisingh, LC for appellants Malsingh, Ansingh & Bhavsingh (Cr.A. No. 543/93), submitted that the appellants have been falsely implicated. In fact when the accused persons were returning from the Mela, the complainant party which was annoyed with Punja as he had abducted the wife of Rupla, assaulted them with stones, arrows & other weapons. They also submitted that after this incident, the complainant party murdered Sardar, the brother of Malsingh and also burnt their houses and 38 accused persons, including the complainant party, were being prosecuted for this offence. They also submitted that charge under Sections 302/149 I.P.C. was not framed against them, therefore, the appellant deserve acquittal. On the other hand, Shri P. Verma, Dy. G.A. supported the impugned judgment.
4. We considered the arguments advanced by counsel for both sides and perused the record.
5. The fact of homicidal death of the deceased Bhagiya has not been disputed before us and rightly so as it is amply proved by occular and medical evidence.
6. Now the question that arises for consideration is whether the appellants were member of unlawful assembly and whether one or more members of the assembly in prosecution of the common object to cause the death of Bhagiya, caused the death of Bhagiya ?
7. It has come in the evidence of Banesingh that on the date of incident i.e., 12-2-91 he, his brother Bahadur (P.W. 5), his father Bhagiya, the deceased, Rupla (P.W. 8), Limji (P.W. 4) and other persons had gone to Harsinga-Tekri to see 'Shivratri-Mela'. There, thousands of tribal people had come. They consumed liquor and were dancing, singing and beating drums in groups. After seeing Mela, when they came near the field of Rupla (P.W. 8), the accused persons, who were coming behind, gave 'Kurrati' and started assaulting them. He stated that Malsingh and Punja gave arrow-shots to his father Bhagiya which pierced his chest. The arrow of Ansingh landed on his back. Gobariya fired his 12 bore gun, the pellets of which hit Bhagiya. Bhavsingh gave farsi-blow which caused injury on his right shoulder. Khuman also gave arrow-shot which landed on the foot of Limji. I.O. Gurjar came on the spot. Banesingh made report which was recorded as 'Dehati-Nalishi' (Ex. P-2) by Gurjar, Bhagiya lay unconscious. They took him to District Hospital, Dhar but he died in the way. Rupla (P.W. 8), Bahadur (P.W. 5) and Limji (P.W. 4) supported the evidence of Banesingh. It is true that some contradictions have occurred in the statements of these witnesses. Admittedly, Bakhtibai, the wife of Rupla (P.W. 8) was living with the appellant Punja as his wife. According to the complainant party, Punja had abducted her. Due to this incident, there was enmity between these two parties. It is also clear from the record that after this incident Sardarsingh, the brother of the appellant Malsingh was murdered and the houses of the appellants were burnt to ashes and for this offence, 38 persons including Limji, Bahadur and Rupla were being prosecuted. From the prosecution evidence, it is clear that the appellants did not pre-plan to kill the deceased. It is true that the appellants were armed with deadly weapons like bows, arrows, gun, Dhariyas etc.. But, as stated earlier, the tribal people came to Harsinga Tekri armed with weapons. The appellants did not come on the place of incident with any object. The complainant party had left the Tekri before 5 p.m. as stated by the prosecution witnesses and had stayed in the field of Rupla to eat green gram. Thereafter the appellants returned from the Mela. It is, thus, clear that they did not know that the complainant party was present in the field of Rupla. The way of their village, passed nearby the field of Rupla and the accused person were passing through this way, therefore, the question of forming unlawful assembly for killing Bhagiya, did not arise. The prosecution witnesses deposed that the appellants made 'Kurrati' but it has not come in their evidence as to who had made 'Kurrati'. It appears that someone gave 'Kurrati' and as there was enmity between these two groups because of abduction of Bakhtibai, the wife of Rupla (P.W. 8) by appellant Punja, all of a sudden fight started. The defence of the appellants is that the complainant party had come earlier from the Mela and assembled in the field of Rupla with a view to attack the appellants when they returned and were to pass through the way and when the accused party was going to their village passing through this way, the complainant party attacked them, the hand of Gobariya was cut and other appellants were injured. The complainant party was armed with bows, arrows, Faliyas and gun. But there is no evidence on record that the accused party sustained any injury. It was suggested that the complainant party belonged to the group of sitting M.L.A. and at his instance the appellants were falsely implicated and they were not taken to Dr. for medical examination but this defence appears to be false, as the I.O. N.R. Gurjar (P.W. 9) stated that he did not see any injury on the body of the appellants and that was the reason why he did not send them to Dr.. However, P.W. 8 Rupla admitted in cross-examination, in para 7 of his deposition that on the spot, arrow-shots were given from both sides. It is clear from this that there was exchange of arrow-shots, though the accused party luckily did not receive injuries. It is thus clear that there was a free fight. Where sudden mutual fight between two parties takes place, Section 149 I.P.C. cannot be invoked for the purpose of imposing constructive criminal liability on the accused persons. The accused in such a case can be convicted only for the injuries caused by him by his individual act. In cases of sudden free fight, unlawful assembly is not formed (See AIR 1976 S.C. 912, Puran v. State of Rajasthan). Therefore, the appellants could not be convicted under Section 148 I.P.C.. In this case, the learned trial Judge also did not frame charge under Section 149 I.P.C.. There was a direct charge under Section 302 I.P.C. that the accused committed murder of Bhagiya.
8. Now we will see what injuries were caused by what accused ?
9. As stated earlier, all the eye-witnesses Banesingh, Limji, Bahadur and Rupla stated that Punja gave arrow-shot to Bhagiya which landed on his chest and thereafter Malsingh inflicted arrow-shot injury on Bhagiya's chest. They also deposed that Ansingh gave arrow-shot which landed on the back of the deceased and Gobariya fired a shot from his 12 bore gun, one pellet of which hit the leg of the deceased and one hit Banesingh. The evidence of these witnesses that appellants Malsingh and Punja gave arrow-shots to the deceased and Gobariya fired 12 bore gun at him stands corroborated by medical evidence. Dr. O.P. Goyal (P.W. 11) who conducted autopsy on the dead-body of Bhagiya, found two punctured wounds on the chest of the deceased and two gun-shot injuries on his right and left thigh. The statement of Banesingh 'further gets corroboration from 'Dehati Nalishi Ex. P-2 which was made 15 minutes after the incident. It is, thus, established that appellant Malsingh and Punja caused arrow-shot injuries on the chest of the deceased. Dr. Goyal opined that the cause of death of Bhagiya was the injuries caused on his chest. The argument that these witnesses are near relations, therefore, their evidence should be brushed aside, is not acceptable. The near relations are the last persons to escape the real culprit and falsely implicate the innocent persons. As stated above, the evidence of these witnesses has been corroborated by medical evidence and the statement of Banesingh was further corroborated by Dehati Nalishi Ex. P-2 which has been proved by Dr. N.R. Gurjar. The defence of appellant Malsingh was of alibi. According to him he was not present on the spot on that day, he had gone to Dhar. But he did not produce any evidence for proving his alibi. Under such circumstances, we hold that the learned trial Judge rightly found that the appellants Malsingh and Punja gave arrow-shots to Bhagiya as a result of which he died. Thus, they committed an offence punishable under Section 302 of the I.P.C..
10. So far as the case of Ansingh is concerned, it is true as stated earlier, that all the witnesses deposed that he gave arrow-shot to the deceased which landed on the back of the deceased, but this evidence stands contradicted with medical evidence. Dr. Goyal did not find any arrow-shot injury on the back of the deceased and under such circumstances, the benefit goes to Ansingh and it is held that the prosecution failed to prove that he caused any injury to the deceased.
11. As stated above, it has been proved that Gobariya fired a shot from his 12 bore gun, the pellets of which hit the deceased as well as Banesingh. Dr. O.P. Goyal found two gun-shot injuries on the left and right thigh of the deceased. At the instance of appellant Gobariya his 12 bore gun was recovered and the ballestic expert opined that this gun was fired. The name of Gobariya finds place in F.I.R. also. It has been suggested that the hand of Gobariya was cut by the complainant party but no medical evidence has been produced in support thereof. Under such circumstances, in our opinion, it is proved that Gobariya caused gun-shot injuries to the deceased. The injuries were simple and were caused on non-vital part of the body. Under such circumstances, he could be convicted only under Section 324 of the I.P.C. and not under Section 302 I.P.C..
12. So far as the case of Bhavsingh is concerned, the witnesses stated that he caused Faliya-blow to Banesingh. He did not cause any injury to the deceased. Same is the case with the appellant Khuman. He also did not cause any injury to the deceased. He gave arrow-shot to Limji which landed on his heel. Dr. K.S. Chouhan (P.W. 6) supported this statement. But no charge under Section 324 I.P.C. had been framed against appellants Bhavsingh and Khuman that they caused injury to Banesingh and Limji respectively. As stated above, appellants Bhavsingh and Khuman did not cause any injury to the deceased, therefore, they and Ansingh deserve acquittal.
13. In the result, Criminal Appeal No. 543/93 is partly allowed. Conviction and sentence imposed on the appellant Malsingh under Section 302 I.P.C. are confirmed. His conviction and sentence under Section 148 I.P.C. are set-aside. Appellant Ansingh and Bhavsingh are acquitted of all the charges. Ansingh & Bhavsingh are on bail, their bailbonds are discharged. Criminal Appeal No. 532/93 is also partly allowed. Conviction and sentence imposed on appellant-Punja for offence under Section 302 I.P.C. are confirmed. However, he is acquitted of the charge under Section 148 of the I.P.C.. The appellant-Gobariya is acquitted of the offence under Section 302 of the I.P.C. instead he is convicted for offence under Section 324 of the I.P.C. and sentenced to three years R.I. and to pay fine of Rs. 3,000/-, in default of payment of fine, one year R.I.. The appellant-Khuman is also acquitted of all the charges. He is on bail, his bail-bonds are discharged. The appellants-Malsingh, Punja and Gobariya are on bail. They shall surrender before the trial Court for serving out the jail-sentence. The trial Court shall take them into custody and send them to jail.