Guman Singh, J.
1.In this appeal, appellants have challenged the judgment dated November 11, 2002 of the learned Additional District & Sessions Judge, (Fast Track), No. I, Bharatpur whereby each of appellants Navlaram, Kapoor Chand, Amit Kumar @ Ummed, Baldev, Balveer and Dalveer were convicted and sentenced as under:
Under Section 302/149 IPC,
to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for two months.
Under Section 307/147 IPC,
to suffer rigorous imprisonment for four years and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month.
Under Section 325/149 IPC,
to suffer rigorous imprisonment for two years and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month.
Under Section 148 IPC,
to suffer rigorous imprisonment for two years and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month.
Under Section 323 IPC,
to suffer rigorous imprisonment for six months and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month.
All the sentences were ordered to run concurrently.
2. Briefly stated, the prosecution case is that informant Udai Singh S/o Deoji Jat R/o Dehara, lodged a written report at Police Station Nadbai on October 27, 2000 at 11.30 a.m. In the report, it was stated that on 27.10.2000 at 8-9 a.m. in the morning Navla, Baldev, Balveer, Dalveer, Kapoor, Samander, Mangi and Ummaid who were armed with 'lathis' and 'Farsa' and were forcibly ploughing the field of the informant. On being asked not to plough the field by informant, they started beating him. Balveer inflicted a 'Farsa' blow on his head with the intention to kill him. On hearing his call to save him, his father Deoji, brother Dharam Singh, wife Smt. Kela, 'Bhabhi' Smt. Leela rushed and tried to save him. On this, all the above assailants assaulted them. They also outraged the modesty of his 'Bhabhi' and wife with the intention to dishonor them and a golden chain and 'Chandi Ki Mala', respectively from the neck of his 'Bhabhi' and wife, were taken away with the intention to commit theft.
3. On the basis of the aforesaid report, a case Under Section 147, 323, 447, 354 and 379 IPC was registered. On 28.10.2000, when injured Dharam Singh was being taken to Jaipur for treatment, he succumbed to the injuries enroute to Jaipur and the offence Under Section 302 IPC was added. During the investigation, site map was prepared, necessary memos were drawn, statements were recorded. After completing the investigation, challan was filed. On the case being committed, the accused persons were charge-sheeted for the offence Under Section 148, 447, 323, 324, 324/149, 325/149, 307/149 and 302/149 IPC. They pleaded not guilty and claimed trial. The prosecution in support of its case examined as many as 15 witnesses. Then the statement of the accused Under Section 313 Cr.P.C. were recorded. In defence, appellant Dalveer Singh examined himself under Section 315 Cr.P.C. In the explanation, it was stated that at the time of incident, appellant Dalveer Singh and Kishan Singh were ploughing the field while Dharam Singh (deceased), Udai Singh (PW. 1), Deoji (PW. 2), Smt. Leela (PW. 4) and Smt. Kela (PW. 3) came in tractor trolley armed with 'lathis' 'Farsa', bricks and stones and inflicted injuries to Dalveer and Kishan with 'lathis' and 'Farsa and also to Smt. Rampyari who had come with their food.
4. We have heard learned Counsel for the appellants, learned Public Prosecutor for the State and with their assistance scanned the material on record. Death of Dharam Singh was undeniably homicidal in nature.
As per post mortem report (Ex. P. 21) of Dharam Singh, the following ante mortem injuries were found on the body:
External injuries:
(a) Lacerated wound 2 x 1 cm mid parietal two (Adjshoy 1 x 1 cm of scalp.
(b) Swelling 8 x 2 cm Rt posterior upper forearm.
(c) Swelling 6 x 4 cm Lt forearm.
All injuries were ante mortem in nature.
Internal injuries:
Rt. panetal bone. Haemorrhage on connective tissue congestal epidural & subdural haematoma congested & odematus.
In the opinion of the doctor the cause of death was head injury. Internal bleeding skull bone leads to come & death.
5. We have also noticed the injuries sustained by injured Udai Singh (PW. 1), Smt. Leelawati (PW. 4), Smt. Kaila (PW. 3) and Dyoji Ram (PW. 2). Details of injuries are as under:
Injured Udai Singh vide injury report (Ex. P. 14) received following injuries:
(a) Incised wound 3 x 1 cm x bone deep mid upper forehead.
(b) Bruise 5 x 2 cm Rt shoulder
(c) Abrasion 2 x 1 cm Ant aspect of Rt. leg.
Injured Smt. Leelawati W/o Shri Dharam Singh vide injury report (Ex. P. 18) received following injuries:
(a) Abrasion 1/2 x 1/2 Lt forearm mid posteriorly.
(b) Pain & tenderness Lt lumber of back. No visible injury seen.
Injured Smt. Kaila W/o Shri Udai Singh vide injury report (Ex. P. 19) received following injuries:
(a) Bruise abrasion 1/2 x 1/2 cm Rt. little pryeue Dorsal aspect.
(b) Abrasion 1/2 x 1/2 cm Dorsal aspect of Rt hand.
Injured Dyoji Ram S/o Gulab Singh vide injury report (Ex. P. 20) received following injuries:
(a) massive swelling 15 x 10 cm whole hand dorsal 12 x 8 cm palmer aspect with finger.
(b) Lacerated wound two 2 x 1 cm x muscle deep Lt index finger, 2-1/2 x 1/2 cm x muscle deep Lt index finger palmer aspect.
(c) Bruise 8 x 4 cm Lt Lumber of back.
(d) Swelling 6 x 4 cm Dorsal aspect of Rt. hand.
(e) Pain Rt shoulder.
(f) Abrasion 2 x 1 cm epigestric abdomen.
6. The genesis as revealed from the prosecution case is that the complainant party as well as the accused party had their fields adjoining to each other, separated by common 'Med' i.e., the demarcation boundary and the incident occurred when the said common boundary was allegedly violated and the field on the other side was being ploughed by the other side as per the allegation and counter allegation. From the evidence adduced by the prosecution it is revealed that in the incident Deoji (PW. 2), his son Dharam Singh (deceased), Udaia Singh (PW. 1), Dharma Singh's wife Smt. Leelawati (PW. 4) and Smt. Kela W/o Udai Singh (PW. 3) sustained injuries and Dharam Singh succumbed to the injuries while he. was being taken for treatment to Jaipur. Dr. Sukhram (PW. 10) who conducted autopsy on the body of Dharam Singh and prepared the post mortem report (Ex. P. 21), found that the cause of death of deceased Dharam Singh was two lacerated wounds on head situated at a distance of half centimeter from each other with fracture of right parietal bone with internal bleeding, resulting in epidural and subdural haematoma leading to coma and death. From the evidence adduced in defence, it is also revealed that a cross case of the incident was lodged vide FIR (Ex. D5) by the appellant Dalveer Singh against the members of the complainant partly namely Udai (PW. 1) Dharma (deceased), Deoji (PW. 10) and Mst. Nibba, wherein appellant Balveer sustained as many as nine injuries including one incised wound as per injury report (Ex. D 6) while Kishan S/o Mangal and Smt. Rampyari W/o Navlaram also sustained injuries.
7. Thus from the fact situation as emerged, it is revealed that both the parties were owners of the adjoining fields and the fight occurred on account of allegation and counter allegation of violation of 'Med' between the fields and both the sides sustained injuries in the incident. This leads to irresistible conclusion that there has been no occasion of formation of unlawful assembly with the object of committing offence of criminal trespass and other offence in prosecution of common object and the learned trial Judge has found to have rightly acquitted the appellants for the offence Under Section 447 IPC as it was not found proved whether the complainant party was in actual possession of the land in dispute.
8. Thus, we find it to be a case of free fight between the accused appellants and the complainant party and as such there is no evidence to sustain the finding of the learned trial Court to convict the accused appellants for the offences with the help of Section 149 IPC. Accordingly, the accused appellants can only be found to be liable for the offences for their individual acts. In the instant case as indicated hereinabove, the deceased Dharam Singh has been found to have been caused two fatal injuries on head, one each by the appellant Balveer Singh and Dalveer Singh as specifically attributed by injured witnesses Udai Singh (PW. 1) and Deoji (PW. 2) and which stands corroborated from the medical evidence as well as from the first information report (Ex. P. 1) lodged by Udai Singh (PW.1) within almost three hours of the incident though the police station was situated at a distance of about 10 Km from the village where the incident occurred. However, in view of the fact that the deceased had sustained only two lacerated wounds on head as indicated above and was not found to have any serious injury as swelling at right upper arm and left forearm was found which was not attributed to appellants Balveer Singh and Dalveer Singh. The two appellants are also not found to have acted with pre-meditation or in cruel manner and thus they can be at the most be attributed with knowledge and not the intention to cause death. Thus their act travels only to the extent of committing offence of culpable homicide not amounting to murder punishable under Section 304 Part II of the Indian Penal Code. On analysing the evidence adduced by the prosecution, we also do not find consistent evidence to establish their individual acts as against the other appellants who already stand acquitted by the learned trial Court for the offences based on their individual acts. Consequently, in view of the above discussion we find that there is no evidence to sustain the finding of conviction of the appellants Under Section 302/149, 307/149, 325/149, 148 and 323 of the Indian Penal Code.
9. For these reasons, we dispose of the instant appeal in the following terms:
(i) We partly allow the appeal of appellants Balveer Singh and Dalveer Singh and instead of Section 302/149 we convict each of them under Section 304 Part II IPC and looking to the fact that each of the appellants has already undergone confinement for a period of more than five years and seven months, the ends of justice would be met in sentencing them to the period already undergone by them in confinement. We however acquit them of the charges under sections 307/149, 325/149, 148 and 323 IPC. The appellants Balveer Singh and Dalveer Singh, who are in jail, shall be set at liberty forthwith, if they are not required to be detained in any other case.
(ii) We allow the appeal of appellants Naval Ram, Kapoor Chand, Amit Kumar and Baldev Singh and acquit them of the charges under Section 302/149, 307/149,325/149,148 and 323 IPC. These appellants are on bail, they need not surrender and their bail bounds stand canceled.
(iii) The impugned judgment of learned trial Court stands modified as indicated above.