Farooq Hasan, J.
1. These two appeals arise out of two different judgments in two different sessions cases which relate to an incident of which two cross reports were filed by both the parties. Since these appeals arise out of one and the same incident alleged to have taken place on 22-7-78 at the joint report of both the parties, they are being disposed of by this common judgment.
2. Learned trial Court holding the incident of a free fight, convicted the accused persons who are appellants in these appeals for their individual act.
3. Each of the accused persons-Himmat Singh, Prahlad & Govind Ram (appellants in Cr. App. No. 245/83 out of Sections case No. 51/81) and Yadram & Ram Khilari (appellants in Cr. App. No 240/83 out of Sections case No. 52/81) convicted under Section 323, IPC, but ordered to be released after admonition under Section 3 of the Probation of Offenders Act.
4. Remaining accused persons were convicted & sentenced as under:
Chhitaria under Section 325, IPC, - One year's RI with afine of Rs. 500/- indefault, 2 monthsRI further.Bhagwat Singh under Section 307, IPC - 3 year's R.I. with afine of Rs. 2,000/- indefault,6 months further R.I.Brief factsIn Sections case No. 51/81-
Yadram lodged a report (Ex. P.1) at police station Kumher on 22-7-78 alleging there in that, he was Ex-Sarpanch having animical terms with accused persons named in report namely, Himmat Singh, Puran, Laxman, Govind & Gopal on account of Panchayat election feud and in the evening, the accused persons entered in to his house and then surrounded him that accused, Govind inflicted lathi blow on his person but was saved by Nem Singh (PW 4), Pappu Gariya (PW 5) & Dyoji Gariya (PW 8), that, the accused persons then went away and he along with Nem Singh, Pappu & Dyoji went to the house of Deviram where he saw Ramdayal (PW 3), Sukhdev (PW 11), Dharam Singh (PW 2), & Smt. Saroopi (PW 6) among others but, after some times, 12 accused persons came back including the afore-named persons and at that time, Bhagwat Singh was duly armed with gun where as Dulichand with country-made Katta and others with lathies.
5. It had also been alleged in the report lodged by Yadram that accused, Himmat Singh, Laxman & Ninua provoked to finish him and there upon Bhagwat Singh opened fire which did not hit any body and that, Nem Singh (PW 4) & Dharam Singh (PW 2) resisted the accused persons from doing so but, accused Badley enraged himself and exhorted to finish them favouring him there by Bhagwat Singh again fired gun shot upon Dharam Singh resulting in causing injuries on his head & thigh. According to the report of Yadram, Nem Singh (PW 4) was also injured due to gun shot fired by Duli Chand (accused), inasmuch as Ramdayal (PW 3) & Mst. Sarupi both were injured due to infliction of blows by the accused persons.
6. According to their injury reports, Yadram, Dharam Singh, Nem Singh, Mst. Sarupi, & Ram Dayal sustained respectively one, three, three, one and two injuries on their persons. After usual investigation, during which, a gun was recovered from Bhagwat Singh, and a country made Katta was also seized, challan was filed in the Court and after committal proceedings, the accused persons Bhagwat & Dulichand were charged under Sections 148, 307 & 323/149, IPC, whereas Himmat, Prasadi, & Prahlad were charged under aforesaid Sections but without Section 149, IPC, and remaining accused namely, Ninua, Badle, Dholu, Puran, Laxman, Govindram & Gopal, were charged under Sections 147, 307 & 323/149, IPC. All these accused persons denied the charged and pleaded not guilty and claimed trial. After recording the statements of the prosecution witnesses and the accused persons and defence witnesses, etc. and hearing both the parties, except the appellants (Himmat, Prahlad, Govindram & Bhagwat who were convicted & sentenced as indicated in second para, supra), other accused persons, named above, were acquitted of the offences charged, Bhagwat appellant was also acquitted of the offence of Sections 148, 323/149, IPC, where as Himmat, Prahlad & Govind Ram (appellants) acquitted of the offences of Sections 147, & 307, IPC.
In Sessions case No 52/81-
7. Cross report by Bhagwat Singh which was first in time as against the report lodged by Yadram, came to be lodged at police station Kumher on 21-7-78. It had been alleged there in that, at about 4/5 p.m. in the evening of 21-7-78, Mohan & Roop Singh were grazing cattles in the field of Bhagwat Singh so, he (Bhagwat Singh) alongwith his brother Prasadilal started drawing the cattles out of the field and while they were taking the cattles towards cattle house Paprera, in the way they saw the accused persons at the Choraha duly armed with Parsa, Lathi & Ballam etc. and that at that time, Nem Singh (accused) provoking his other companions to finish, opened a fire upon Bhagwat by his country made Katta but Bhagwat saved him self by sleeping down and that, Nem Singh fired two shots and then saying that the shots were not being fired from the Katta, so, attacked by lathies & Parsa and thereby Yadram & Dharam started beating with lathies upon Bhagwat and other accused persons gave lathies blow on the person of Prasadilal. As a result of beating, Prasadilal & Bhagwat allegedly fell on the earth and upon their hue and cry, Ninua (PW 3), Badle (PW 4), Raghunath Singh (PW 5) rushed to them and saved them. According to the report of Bhagwat, their cattles were also taken away by the accused persons. The report was lodged after Bhagwat & Prasadilal got themselves medically examined. Upon the aforesaid report, after usual investigation the challan was filed in the Court and after committal proceedings, accused persons, Nemsingh, Ramdayal, Yadram, Roop Singh, Ram Khilari, Dharam Singh, Mohan Singh & Chhitaria were charged respectively under Sections 147 & 307, IPC. Prasadilal sustained four injuries where as similarly, Bhagwat also sustained four injuries but Prasadilal sustained one fracture.
8. After examining 12 prosecution witnesses, and accused persons under Section 313, Cr. P.C., and after due trial, hearing both the parties, found the accused persons guilty and sentenced them as indicated in third para of this judgment.
9. Before I proceed with furthe, I would like to mention the injuries alleged to have been sustained on the persons of the prosecution and accused sides in the impugned incident:
Prasadilal
1. Lacerated wound 2' x 1/4 x 1/2' Rt. Parietal Region.
2. Lacerated wound 1 1/2' x 1/4' x 1/4' Rt. Parietal Region posteriorly.
3. Lacerated wound 1/2' x 1/2' x 1/4' Rt. elbow Lat. border.
4. Abrasions 1' x 1/2' One-back on midline at lower level.
For injury Nos. 1 to 3, X-ray was advised and all the injuries were opined to have been caused by blunt object and injury No. 4 was found to be simple in nature. After X-ray, no fracture was found on skull but, as regards, fracture lateral epicondgle of right humarous was present and no callus was found.
Bhagwat Singh
1. Lacerated wound 1' x 1/4' x 1/4' Rt. Parietal Region.
2. Abrasions 1' x 1/2' Rt. hand near wrist on palmer aspect.
3. Abrasions 1/4' x 1/4' over terminal Phalynx of Rt. ring finger.
4. Abrasions 1 1/2' x 1' over lower 1/3rd of Rt. leg on medial aspect.
Injury Nos. 3 & 4 were found to be simple in nature. For injury Nos. 1 & 2, X-ray was advised. All the injuries were said to have been caused by blunt object.
Yadram
1. Bruise (red colour) 2 1/2' x 3/4' over left scapula. This injury was stated to be simple in nature and was allegedly caused by blunt.
Dharam Singh
1. Lacerated wound 1 1/2' cm. x 1/2 cm x 1/4 cm. left parietal region.
2. Lacerated wound margins are blackist 1 cm. x 1/2 cm. x 1 cm. Rt. thigh upper 1/3rd ant. aspect.
3. Abrasions 1 x 1/2 cm. x 1 cm. Left elbow outer side.
Injury No. 3 was said to be simple in nature. For injury Nos. 1 & 2, X-ray was advised. Injury Nos. 1 & 3 were allegely caused by blunt object. After X-ray Injury No. 2 was said to be grievous caused by fire arm, and its X-ray showed fracture neck of femur; Rt. side with two radio opaque shadows resembling bullet and no callus.
Swaroopl W/o Deviram
1. Abrasions 1' 3/4' over Rt. side of chest wall
This injury was opined to be simple in nature and allegedly caused by blunt object.
Nem Singh
1. Lacerated wound 3/4' x 1/4' x 1/8' occipital region.
2. Abrasions 1/2' x 3/4' over face near outer angle of Rt. eye.
3. Complained of Rt. index finger- No evidence of external injury.
Both the injuries, supra, were said to be simple having been caused allegedly by blunt object.
Ramdayal
1. abrasions 1 1/2' x 1/4' over left leg just below the tibial tubercle on anterior aspect.
2. Contusion (Red colour) 1' x 3/4' over left thigh (middle 1/3rd) anterior aspect.
Both the injuries were alleged to be simple having been caused by blunt object.
10. Obviously, both these appeals related to one and the same incident where in both the parties sustained injuries and they in their respective reports held either of the party as aggressor. So, in case it is found that one of party was aggressor then definitely the benefit of such finding will go to that party and in that situation, one of the appeals is to be dismissed.
11. It has been contended before this Court that the learned trial Court erred in holding that it was a case of free-fight. A look at the record shows that none of the party has set up a case of free-fight or that, both the parties were determined for trial of their strength and thereafter had free-fight.
12. Mr. Biri Singh, learned Advocate contended that admittedly it is clear that the complainant party was aggressor and they opened assaults upon the accused party and got their cattles freed from the possession of Bhagwat Singh who was allegedly taking the cattles to cattle ponds because, the cattles damaged their crops. Shri Singh then urged that it is settled law that where if it is not proved that both the parties were pre-determined to fight for trial of their strength, only in that situation it can be held that the case was of free fight.
In this regard, he relied upon the decisions in (1) AIR 1954 SC p. 694; and (2) 1988 Raj. Cr. C. PP. 18 & 41.
13. Shri Biri Singh then argued that the prosecution failed to proved genesis of the occurrence and the defence theory put forward by the accused was probable; that, material and important witnesses have not been examined by the prosecution inasmuch as the statements of the prosecution witnesses were recorded by the police after a great delay and that, the trial Court erred in not holding that the accused party had a right of private defence of their person and property.
14. On the other hand, learned Public Prosecutor and Shri D.K. Soral supported the findings of the trial Court and according to them, the learned trial Court was justified in finding the appellants, Bhagwat Singh & others, guilty and no right of private defence of person accrued to them.
15. I have considered the points raised by the parties. In the light of the submissions of the parties I have also perused the relevant record with their help. There is no dispute that the incident took place in village Paprera where the cattle pond was situated. Bhagwat Singh & others are not residents of village Paprera but are residents of village Chak Paprera which is situated at a distance of 1 km from village Paprera. That being so, it was necessary for the prosecution to have given some explanation for the presence of the appellants, Bhagwat Singh & others, at village Paprera, but, no such explanation is for the coming from the prosecution side. Dharam Singh, Ram Dayal (injured persons) & other witnesses admitted the above facts in their evidence, he immediate causes motive by the prosecution for gathering of 12 persons in village for giving beating to the complainant party (Yadram & others) has been given. That being so, the incident is not probable at all as alleged by the prosecution. Contrarily, Bhagwat Singh & his brother Prasadi have given sufficient & cogent reasons for their presence at village Paprera. They have specifically stated that the cattles of Mohan Singh (PW 5) & Roop Singh (PW 8) were grazing in the fields and that, they drew away the cattles from the fields and took the cattles to the cattles pond in the village and when they were in the way with the cattles then the complainant party opened attack on them near the house of Deviram ( father of PW 8), the complainant party wanted to get the cattles freed by force and got the cattles freed at that time. Therefore, the presence of appellants, Bhagwat Singh & others, the presence of appellants, Bhagwat Singh & others, was quite natural and probable, and that being so, the defence version appears to be reasonable and plausible. In this regard, I find support from the decisions in
(1) Chanan Singh v. State of M.P.
(1979 Unreported Judgments (SC)p. 346)
(2) Subhan Khan v. State of Rajasthan.
(1970 RLW p. 604);
(3)Seriyal v. State of T.N.
(1987 SC p. 1289);
(4) Pramod Kumer v. State of Rajasthan.
(1988 Raj. Cr. Cases p. 18)
(5) 1987 (2) RLR p. 726.
16. After going through the statement of the prosecution witnesses it appears that the occurrence has also been witnesses by Gheesa S/o Sukhram, Deviram S/o Sonpal, Puran S/o Nekram, Revati S/o Madle Kumhar. But these witnesses have not been produced by the prosecution nor any explanation has been put forward for their non-production, moreso, when all these persons have been shown in the calendar of witnesses annexed to the charge sheet. They were independent witness. Deviram & Puran allegedly presented the articles of fire-arms seized by the Investigating Officer vide Ex. P. 10 & P. 11. Failure on the part of the prosecution at produce the aforesaid persons in the witness box casts aspersions on the prosecution story raising a reasonable inference that had they been examined, they would not have supported the prosecution witnesses. Withholding these persons so as to unfold the prosecution story which lacks of corroboration and which tends to disclose material particulars and genesis of the occurrence, and its non-explanation of the prosecution, entitles the accused to the benefit of doubt, as has been held in
(1) Hemraj v. State of Gujarat (1972 (Cri.) SCC p. 715).
(2) Iswar Singh v. State (1976 Cr. L.J. p. 1883).
(3) Bir Singh v. State of U.P. (1977 Cr. L.R. (SC) p. 385).
(4) State of Raj v. Puran. (1986 Cr. L.R. Raj. p 445).
17. Undisputedly, the investigating officer under law is bound to record statements of the alleged eye witnesses under Section 161, Cr. P.C. promptly. But, in the case at hand, the incident allegedly took place on 21-7-1978 at 7 p.m. & its report was lodged at the police station on 22-7-1978 at 6.30 p.m. belatedly after about 24 hours, inasmuch as evidence of the alleged eye witness was recorded by the police on 27-7-1978 & afterwards, with out any explanation about such a delay and this has resulted in diminishing the evidentiary value of these witnesses and that apart, the presence of such witnesses at the place of occurrence casts doubt on the prosecution story and their testimony becomes doubtful- the benefit of which much go to the accused-appellants, as has been Laid down in
(1) Krishanlal v. State (1971 Cr. L.J. p. 1610)
(2) State v. Hukam Chand. (1983 (2) Crimes p. 968).
18. One more significant infirmity, as has rightly been pointed by the learned Counsel, is that in the case at hand, the prosecution has come out with the version that Bhagwat Singh (appellant) was armed with gun & Yadram was having a country-made Katta; but from the injury reports & X-ray report of Dharam Singh it appears that the injuries found on his person was caused by a rifle and not a gun. In the presence of declination on the part of the witness, Dr. R.D. Goyal (PW 10) obviously because he was not an expert in the science of fire-arms, to state in his cross- examination about the distance from which the fire-arm was fired, the prosecution in my view, had to examine a qualified expert so as to establish on record, whether the injuries attributed to Bhagwat Singh were caused either by gun or rifle having been used at such a close distance as was being suggested in the evidence by the prosecution & in the injury report. In the presence of the circumstances, appearing on record, the evidence of an expert on the aforesaid controversy was necessary and in the absence of such an evidence, Bhagwat Singh cannot be convicted wholly upon the oral testimony and thus the impugned conviction based on an evidence which remained unfortified by an expert evidence which clinches the plank of the prosecution story, is not sustainable in the eye of law, as has rightly been Laid down by their Lordships of the Apex Court in Mohinder Singh v. State (1953 Cr. L.J. (SC) 1761).
19. The prosecution has not proved injury reports of Nem Singh, Ram Dayal, Smt. Sarupi & Yadram according to the procedure Laid down in the Evidence Act etc. The prosecution got these injury reports of the aforesaid injured persons, exhibited without producing the concerned doctor who had prepared them. The doctor produced in the witness box has not at all stated even a single word whether had he examined these injured persons and prepared their injury reports. That being so, in the absence of the evidence of a doctor, these injury reports remained legally unproved and could not be acted upon them at its face value and no aid can be taken so as to base the conviction upon the accused on the basis of the injury reports. The benefit of which also must go to the accused persons.
20. In the case at hand, also, the prosecution is alleged to have seized some cartridges & fire-arms vide Ex. Ps. 10 & 11 and which are allegedly produced by Deviram & Puran. But, neither these two persons have been produced nor any ballistic expert's report has been produced in the evidence on record. In these circumstances there is no evidence on record to connect the appellants with the alleged crime of causing injuries by fire-arms. Thus, the impugned conviction is not sustainable.
21. I may reiterate that cross case has also been registered against Yadram & others on the report of Bhagwat Singh, who in his report as well as statement under Section 313, Cr. P.C. had taken a specific defence plea and produced the evidence in support there of.
22. Having gone in to the evidence of both the parties contemporaneously, it appears that in the case at hand, Bhagwat Singh & others were able to prove that Bhagwat Singh & his brother, Prasadilal when were taking the cattles of the complainant party to the cattle ponds situated in village Paprera so as to oust the cattles from their fields, at that time, hear the Pataur of Deviram, Bhagwat Singh & others were assaulted by the complainant party by giving beating to them, thereby, Bhagwat Singh & Prasadi sustained grievous injuries and other simple injuries on their body's vital parts and in that melee, the complainant party succeeded in getting their cattle freed from the possession of Bhagwat Singh & Prasadilal.
23. But, all these circumstances, appearing on record, have completely been ignored by the trial Court and it failed by give any weight to the defence plea which was probable. Approach of the learned trial Court was that the case was of a free fight. After going through the entire record and the defence evidence, contrarily, I find that the trial Court has failed to give any weight to the probable defence, and in my considered opinion, the trial Court should have extended benefit of right of Private defence to the appellants. Bhagwat Singh & others. My view is fortified from the decisions in Yogendra Morarji v. State of Gujarat. (AIR 1980 SC p. 668) & Promod Kumar v. State (1988 Raj. Cr. Cases p. 27).
24. A look at the record shows that the prosecution failed to explain injuries found on the persons of Bhagwat Singh & his brother, Prasadilal as per the statement of the doctor and the duration stated in the injury report about the injuries coupled with the facts stated in the counter report thus it cannot be disputed that the accused sustained injuries in the same incident which has been alleged by the complainant party, Yadram & others. So, it was the duty of the prosecution to have explained the injuries sustained on the accused persons. Further from the record it appears that a suggestive question was put to all the witnesses that they have given beating to the appellants, Bhagwat Singh & others, & got their cattles freed from them but the answer was in negative. It is thus clear that none of the prosecution witnesses admitted injuries on the persons of accused, Bhagwat Singh & others.
25. As stated earlier, appellant, Bhagwat Singh sustained four injuries & Prasadilal also sustained four injuries. Both of them sustained grievous injuries. The injuries on the persons of Bhagwat Singh & Prasadilal have been proved by producing injury reports (Ex. Ds. 6 & 7). In these circumstances the learned trial Court should have drawn an adverse inference against the prosecution by giving benefit of doubt to them, as has been held in Laxmi Singh & Ors. v. State of Bihar. (1976 Cr. L.J. p. 1786).
26 In view of the foregoing discussions, I am of the opinion that in the impugned incident, Yadram & others (complainant party in Cr. Appeal No. 245/83) was aggressor and right of private defence did accrue to the appellants, Bhagwat Singh & others. Moreover, the prosecution has miserably failed to prove the guilt against the appellants, Bhagwat Singh & others beyond reasonable doubt.
27. Consequently, the appeal (No. 245/83) of appellants, Bhagwat Singh & others, is allowed and the impugned judgment convicting & sentencing the appellants, Bhagwat Singh & others, is set aside and they are acquitted of the charges framed against them. They are on bail and need not surrender. Their bail bonds stand cancelled.
28. As regards, Cr. Appeal No. 240/83 filed by Chhitariya, Yadram & Ram Khilari, I may state that in view of the decision taken in Cr. Appeal No. 245/83, supra, these appellants, Chhitariya & other have been held to be aggressor on the basis of discussion of the evidence on record. As a legal and logical corrolary to it, the appeal of Chhitarya & other (No. 240/83) has to be failed and dismissed affirming the impugned judgment of their conviction & sentence under appeal However, since the incident relates back to the year 1978, in view of the accompanying circumstances of the case, appearing on record, I am of the opinion that instead of affirming the impugned sentence of the appellants, I deem it proper to extend the benefit of the probation to the appellant sentenced by the trial court. Only, appellant, Chhitariya has been sentenced to one year's R.I. under Section 325, IPC, while releasing to her appellants, Yadram & Ram Khileri, after admonition under Section 3 of the Probation of Offenders Act. Therefore, I do not think that after a lapse of about thirteen years from the date of incident, Chhitariya be sent to jail to serve out a short span of sentence less than atleast one years R.I.
29. Consequently, Cr. Appeal No. 240/83 of Yadram & Ram Khilari against their impugned conviction is dismissed and Cr. Appeal No. 240/83 of Chhitariya is partly allowed. His impugned conviction is maintained but instead of sending him to jail, Chhitariya is ordered to be released on probation of good conduct provided he furnishes a personal bond of Rs. 2000/- together with one surety in the like amount to the satisfaction of the trial Court for six months from the date of execution of the aforesaid bonds, to appear in the trial court when called upon during this period of probation of six months and to keep peace and be of good conduct & behaviour. Chhitariya is allowed three months time to furnish the aforesaid bond in the trial Court failing which the trial court will issue warrant of arrest of Chhitariya to serve out the remaining part of the sentence under challenge in this appeal. To the above extent, the impugned judgment under Appeal No. 240/83 stands modified.