Garg, J.
1. This appeal has been preferred by the accused appellants against the judgment and order dated 1.9.1998 passed by the learned Addl. Sessions Judge, Parbatsar by which he convicted and sentenced the accused appellants in the following manner:-
Name of accused appellants Convicted under/Section
Sentence awarded
1. Mithu
304(1) IPC
Seven years SI and a fine of Rs. 5.000/-, in defaultof payment of fine, to further undergo SI for one year.
325/1491PC
Three years SI and a fine of Rs. 2.000/-, In defaultof payment of fine, to further undergo SI for one month,
323/149 IPC
Six months SI and a fine of Rs. 500/-, in defaultof payment of fine, to further undergo 15 days SI.
148 IPC
One year SI and a fine of Rs. 500/-, in defaultof payment of fine, to further undergo one month SI.
2,Likhmaram
304(1)/149 IPC
Seven years SI and a fine of Rs. 5,000/-, in defaultof payment of fine, to further undergo one year Si.
325 IPC
Three years SI and a fine Of Rs. 2,000/-, In defaultof payment of fine, to further undergo one month SI.
323/149 IPC
Six months SI and a Tine of Rs. 500/-, in defaultof payment of fine, lo further undergo 15 days SI.
148 IPC
One year SI and a Tine of Rs. 500/-, in defaultof payment of fine, to further undergoone month SI.
3. Hanumanram
304 CO/149 IPC
Seven years SI and a fine of Rs. 5,000/-, in default of payment of fine, to further undergo one year SI.
4. Shravan
5. Manguram
6. Premaram
325/149 IPC
Three years SI and a fine of Rs. 2,000/-, in default of payment of fine, to further undergo one month SI.
323/149 IPC
Six months SI and a fine of Rs,500A, in default of payment of fine, tofurther undergo 15 days S!.
148 IPC
One year SI and fine of Rs. 500A, in default of payment of fine, lo further undergo one month SI.
All the above substantivesentences were ordered to run concurrently.
(2). The facts giving rise to this appeal, in short, are as follows:-
On 23.6.1992 at about 1.30 PM, PW1 Todaram lodged a written report Ex.P/1 before PW 17 Hanuman Singh, SHO, Police Station Maroth slating inter-alia that on that day at about 1.00 PM, he and other members of his family were sitting on the roof of his house and were talking. Thereafter, after entering into the door of his house and after climbing over the roof, the accused appellants Likhmaram, Mithu, Hanuman, Shravan, Manguram and Premaram and others, namely, Ramli, Prahlad, Ram Niwas, Rukma, Motiram, Lalaram, Mohani and Kamla beat Hardevaram (hereinafter referred to as the deceased), PW 2 Bholki, PW 1 Todaram, PW 3 Sarju, PW4 Rekharam and PW6 Sitaram with kulharies and lathies and his lips were also cut by accused appellant Mithuram and PW4 Rekharam was thrown away from the roof to the ground by accused appellant Likhmaram and it appeared that his legs were broken and got fractures. It is further stated in the report that PW9 Dularam and PW 11 Ganeshram were sitting alongwith them, but they did not speak anything because of seeing so many accused persons.
On this report, police registered the case and chalked out FIR Ex.P/2 and started investigation.
During investigation, deceased was got medically examined by PW14 Dr. Kamal Bajaj and his injury report is Ex.P/23 and deceased died in the hospital on 30.6.1992 and his post mortem report is Ex.P/6, which was conducted by PW 10 Dr. V.D. Kawiya. PW6 Sitaram, PW2 Bholki, PW3 Sarju, PW1 Todaram and PW4 Rekharam were also got medically examined and their injury reports are Ex.P/19, Ex.P/20, Ex.P/21 and Ex.P/22 and Ex.P/24 respectively. The X-ray report of PW4 Rekharam is Ex.P/26, which shows fracture of lower 2/3 shaft of right tibia bone. The accused appellants were arrested on 4.7.1992 through arrest memos Ex.P/28 to Ex.P/32.
After usual investigation, the police submitted challan against the accused appellants in the Court of Magistrate, from where the case was committed to the Court of Sessions, MertaCity.
On 15.12.1992, the learned Sessions Judge framed charges for the offence under Sections 147, 148, 302, 323/149, 325/149 and 325 or 326 1PC against accused appellant Mithuram and under Sections 147, 148, 302/149, 323/149, 325/149 and 325/149 or 326/1491PC against accused appellants Hanumanram, Shravan, Manguram, Premaramand Likhmaram and charge for the offence under Section 325 IPC was also framed against accused appellant Likhmaram. The charges were read over and explained to the accused appellants, who pleaded not guilty and claimed trial.
Thereafter, me case was transferred to the Court of Addl. Sessions Judge, Parbatsar.
During trial, the prosecution in support of its case examined as many as 17 witnesses and got exhibited nearabout 39 documents. Thereafter, the statement of the accused appellants under Section 313 Cr. P.C. were recorded. In defence, two witnesses were produced and many documents were got exhibited by the accused appellants.
After conclusion of trial, the learned Addl. Sessions Judge, Parbatsar through his judgment and order dated 1.9.1998 convicted and sentenced the accused appellants in the manner as stated above holding inter-alia:-
1. That death of the deceased was homicidal one.
2. That the prosecution has proved its case beyond reasonable doubt for the offence under Sections 304 Part-1, 325/149, 323/149 and 148 IPC against the accused appellant Mithu, for the offence under Sections 304 Part-1/149, 325, 323/149 and 148 IPC against accused appellant Likhmaram and for the offence under Sections 304(1)/149, 325/149, 323/149 and 148 IPC against accused appellants Hanumanram, Shravan Manguram and Premaram.
3. That the learned Addl. Sessions Judge came to the conclusion that injury on the head of the deceased was caused by accused appellant Mithuram and, therefore, he convicted him under Section 304 Part-1 IPC and rest accused appellants were convicted with the aid of Section 149 IPC for the death of the deceased.
Aggrieved from the said judgment and order dated 1.9.1998 passed by the learned Addl. Sessions Judge, Parbatsar, this appeal has been filed by the accused appellants.
(3). In this appeal, the following submissions have been raised by the learned counsel for the accused appellants:
1. That accused appellants have been falsely implicated by the complainant party as there was a dispute over the property as complainant party had illegally taken the possession of the property belonging to the accused appellant Hanuman and when accused parly tried to take the possession, this incident took place and thus, all accused appellants have a right of private defence both of properly and person.
2. That complainant party has implicated in the report Ex.P/1, as many as 15 persons and police filed challan against only six accused appellants and, thereafter, the complainant party presented an application under Section 319 Cr. P.C. for implicating rest accused persons, but this Court quashed the order of the trial court, by which cognizance was taken against other accused persons. This also shows how the complainant party is interested in implicating the accused persons falsely.
3. That in the present case, convicting the accused appellants with the aid of Section 149 IPC is wrong as there was no unlawful assembly and whatever has been done by the accused appellants, it has been done in their own rights to protect properly and person. Furthermore, since out of six accused appellants, three accused appellants, namely, Shravam, Likhmaram and Mithu also received injuries andthere is a cross FIR also and on the basis of which, challan was also filed against the complainant party, thus, it cannot be said that accused appellant were members of unlawful assembly and it is at the most a case of free fight and thus, Section 149 IPC is not applicable in the present case.
4. That since it is a case of free fight, therefore, at the most, each accused appellant would be liable for the individual injury caused by him and not for the injuries caused by others.
Hence, it is prayed that this appeal be allowed and the accused appellants be acquitted of the charges framed against them.
(4). On the other hand, the learned Public Prosecutor and the learned counsel for the complainant supported the impugned judgment and order dated 1.9.1998 passed by the learned Addl. Sessions Judge, Parbatsar.
(5). I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and learned counsel for the complainant and perused the record of the case.
(6). Before proceeding further and to appreciate that contentions raised by the learned counsel for the accused appellants, it would be worthwhile to discuss here the medical evidence produced by the prosecution in this case.
Injury report of deceased Hardevaram
(7). The Injury report of deceased Hardevaram is Ex.P/23 and to prove the same, the prosecution has produced Dr. Kamal Bajaj.
(8). PW 14 Dr. Kamal Bajaj states in his statement that on 23.6.1992 he was Medical Officer and examined the deceased and found the following Injuries on his person:-
1. Swelling of 2' x 2' on Rt. parietal region of skull.
2. Abrasion of 1' x 2mm on Rt. forearm in middle 1/3 region.
3. Bruise of 2' x 1' on Rt. shoulder region anteriorly.
4. C/o pain in whole body, no Ext. Injury seen, Tenderness present in different parts.
He has proved the injury report of the deceased Ex.P/23. Post mortem report of deceased Hardevaram
(9). The post mortem report of deceased Hardevaram is Ex.P/6 and to prove the same, the prosecution has produced Dr. V.D. Kawiya, PW 10. It may be stated here that incident took place on 23.6.1992 and deceased died on 30.6,1992.
(10). PW 10 Dr. V.D. Kawiya states in his statement that he conducted the post mortem of the dead body of the deceased Hardevaram on 30.6.1992 and found the following injuries on his body:-
1. Abrasion 2.5cm x 1 cm on the medial aspect of right elbow with dry scab.
2. Abraded contusion 6 x 1 1/2 cm on back of Lt. elbow dried scab.
3. Swelling haematoma 13cm x 10cm on the Rt. temporal parietal region. On reflection of the scalp layers there is haematoma seen spreading on Rt. temporal, parietal and partly on frontal regions, clotted haematoma. On cleansing of clots there is a depressed communited fracture seen on Rt. parietal bone measuring 5x 4 cm with the irregular margins and two radiating tissure fractures downwards on Rt. temporal and frontal bones measuring 6cm and 7cm respectively through which blood seen.
He opined that cause of death of the deceased was coma as a result of ante mortem head Injury,
He further opined that injury No.3 was sufficient in the ordinary course of nature to cause death.
He has proved the post mortem report Ex.P/6.
(11). Thus, from Ex.P/6 post mortem report, it appears that the cause of death of deceased Hardevaram was coma as a result of ante mortem head injury and therefore, his death was homicidal in nature and he has received injuries and injury No.3 was sufficient in the ordinary course of nature to cause death.
(12). Hence, the findings of the learned Addl. Sessions Judge that death of the deceased was homicidal are liable to be confirmed.
(13). Before proceeding further, injuries of other injured witnesses should also be mentioned here.
Injury report of Injured Sitaram (PW 6)
(14). The injury report of injured Sitaram (PW 6) is Ex.P/19 and to prove the same, the prosecution has produced Dr. Kamal Bajaj (PW 14).
(15). PW 14 Dr. Kamal Bajaj states in his statement that on 23.6.1992 he examined Sitaram, PW 6 and found the following injuries on his person;-
1. Abrasion of 1' x 1cm on centre of forehead. Simple by blunt object.
2. Multiple abrasions on right arm laterally. Simple by blunt object.
3. Abrasion of 1' x 1' on right side of back in scapular region. Simple by blunt object.
4. Swelling of 1' x 1' on right foot. No external mark of injury. No boney injury. Tenderness present.
Simple by blunt object.
5. Abrasion of 1cm x 1cm on left calf region of leg.
Simple by blunt object.
He has proved the injury report Ex. P/19 of PW 6 Sitaram.
(16). Thus, it is clear that Sitaram, PW 6 received as many as five injuries, which were found to be simple in nature and caused by blunt object.
Injury report of Injured Bholki (PW 2)
(17). The injury report of injured Bholki, PW 2 is Ex.P/20 and to prove the same, the prosecution has produced Dr. Kamal Bajaj (PW 14).
(18). PW 14 Dr. Kamal Bajaj states in his statement that on 23.6.1992, he examined Bholki, PW 2 and found the following Injuries on her person:-
1. Abrasion of I 1/2 cm x 1/2 cm on right elbow region laterally.
Simple by blunt object
Bruise of 1' x 1' on left shoulder region posteriorly. Simple by blunt object.
Abrasion of 5mm x 2mm on right side of nose.
He has proved the injury report Ex.P/20 of PW 2 Bholki.
(19). Thus, it is clear that injured Bholki, PW2 received three injuries, which were found to be simple in nature and caused by blunt object.
Injury report of Injured Sarju, PW 3
(20). The injury report of injured Sarju, PW 3 is Ex.P/21 and to prove the same, the prosecution has produced Dr. Kamal Bajaj, PW 14.
(21). PW 14 Dr. Kamal Bajaj states in his statement that on 23.6.1992 he examined Sarju, PW 3 and found the following injuries on her person:-
1. Lacerated wound of 1' x 5cm x 2mm on right parietal region ofskull. .
Simple by blunt object.
2. Bruise of 1' x 1' on left leg in calf region. Simple by blunt object.
3. Abrasion of 1' x 2mm on right forearm in middle 1/3 region. Simple by blunl object.
He has proved the injury report Ex.P/21 of PW3 Sarju.
(22). Thus, it is clear that injured Sarju, PW3 received three injuries, which were found to be simple in nature and caused by blunt object.
Injury report of injured Todaram (PW 1)
(23). The injury report of injured Todaram, PW1 is Ex.P/22 and to prove the same, the prosecution has produced Dr. Kamal Bajaj, PW 14.
(24). PW 14 Dr. Kamal Bajaj states in his statement that on 23.6.1992 he examined Todaram, PW 1 and found the following injuries on his person:-
1. Lacerated wound of 1 1/2' x 5mm x 2mm in frontal region of skull centrally.
Simple by blunt object.
2. Lacerated wound of 1 1/2 cm x 1 cm on lower lip centrally with the portion cut off from lip. Grevlous by blunt object.
3. Bruise of 6' x 1' on Lt. thigh laterally middle 1/3. Simple by blunt object.
4. C/o pain all over body, no External mark of injury seen, tenderness present at different places.
He has proved the injury report Ex.P/22 of Todaram, PW1.
(25). Thus, it is clear that injured Todaram, PW 1 received four injuries, out of which, injury No.2 was found to be grevious one and remaining injuries were found to be simple in nature and they, all were caused by blunt object.
Injury report of Injured Rekharam (PW 4)
(26). The injury report of injured Rekharam, PW 4 is Ex.P/24 and to prove the same, the prosecution has produced Dr. Kamal Bajaj, PW 14.
(27). PW 14 Dr. Kamal Bajaj states in his statement that on 23.6.1992 he examined Rekharam, PW 4 and found the following injury on his person:-
Swelling around the right ankle.
No external injury. By blunt object;
He has further stated that he advised for X-ray and after seeing the X-ray, he found that there was fracture of right tibia bone and thus, he opined that the above injury was grevious. He has proved the injury report Ex.P/24 and X-ray report Ex.P/26 of Rekharam, PW 4.
(28). Thus, it is clear that injury of injured Rekharam, PW 4 was found to be grevious one as there was fracture of right tibia bone.
(29). Before proceeding further, the injuries of the accused appellants, Likhmaram, Shravanram and Mithuram should also be mentioned here.
Injury report of accused appellant Likhmaram
(30). The injury report of accused appellant Likhmaram is Ex.D/11 and to prove the same, Dr. Kamal Bajaj, DW 2 has been examined on behalf of the accused appellants.
(31). DW 2 Dr. Kamal Bajaj states in his statement that on 23.6.1992 he examined Likhmaram, accused appellant and found the following injuries on his person:-
1. Abrasion of 1' x 2mm on forearm posteriorly. Simple by blunt object.
Abrasion of 1cm x 1cm on back of Rt. Scapular region.
Simple by blunt object.
3: Swelling of 1' x 1cm with abrasion on Rt. forearm posteriorly.
By blunt object.
4. Abrasion of 1cm x 1cm on Lt. scapular region.
Simple by blunt object.
Injury report of accused appellant Shravanram
(32). The injury report of the accused appellant Shravanram is Ex. D/12 and to prove the same, Dr. Kamal Bajaj, DW 2 has been examined on behalf of the accused appellants.
(33). DW 2 Dr. Kamal Bajaj states in his statement that on 23.6.1992 he examined Shravanram, accused appellant and found the following injuries on his person:-
1. Abrasion of 1' x 5mm on occipital region of skull posteriorly.
Simple by blunt object.
2. Abrasion of 5mm x 5mm on Rt. little finger.
Simple by blunt object.
Injury report of accused appellant Mithuram
(34). The injury report of accused appellant Mithuram is Ex.D/13 and to prove the same, Dr. Kamal Bajaj, DW 2 has been produced on behalf of the accused appellants.
(35). DW2 Dr. Kamal Bajaj states in his statement that on 23.6.1992 he examined Mithuram, accused appellant and found the following injuries on his person:-
1. Abrasion of 1' x 2mm with swelling on Lt. forearm posteriorly. No boney injury.
Simple by blunt object.
2. Abrasion of 2mm x 5mm on Rt. little finger.
Simple by blunt object.
(36). Before proceeding further, it may be stated here that before recording a conviction under Section 148 IPC and applicability of Section 149 IPC, the following essential ingredients must be satisfied by the prosecution:-
(i) That five or more persons were assembled.
(ii) That such assembly was unlawful when it was convened or subsequently became unlawful, having any one of the five objects specified in Section 141.
(iii) That such object was the common object of those composing such assembly.
(iv) That the accused, or any member of such unlawful assembly, used force or violence.
(v) That such force or violence was used in the prosecution of such common object.
(vi) That the accused was armed with a deadly weapon, or with something which was likely to cause death, when used as a weapon of offence.
(37). Section 149 IPC creates a specific offence and deals with the punishment of that offence. Section 149 IPC makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. The Section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly.
(38). It is well settled that mere presence of persons does not make them members of unlawful assembly. For that two decisions of the Hon'ble Supreme Court in Baladin and Ors. v. State of Uttar Pradesh (1) and Bishambar Bhagat and Ors. v. The State of Bihar (2), may be referred to.
(39). When there is unlawful assembly, at that time, it becomes difficult for the witnesses to describe accurately the part played by each one of the assailants and thus, in such cases, criminal courts have to do their best in dealing with such cases and duty is cast upon the criminal court to sift the evidence carefully and decide which part of it is true and which is not. For that, the decision of the Hon'ble Supreme Court in Masalti and Ors. v. The State of UP (3), may be seen.
(40). Before recording conviction with the aid of Section 149 IPC, act done by each of the accused must be shown to have been committed to accomplish common object. For that the decision of the Hon'ble Supreme Court in Allauddin Mian and Anr. v. State of Bihar (4), may be seen. Thus, if there is no participation, then no liability can be fastened.
(41). For the purpose of application of Section 149 IPC, the prosecution has to prove the presence and participation of each of the accused in unlawful assembly, as held by the Hon'ble Supreme Court in Nallamsetty Yanadalah and Ors. v. State of Andhra Pradesh (5).
(42). Keeping the above principles in mind, it is to be seen whether conviction in the present case can take place for the offence under Section 148 IPC and simultaneously whether Section 149 IPC has been rightly applied by the learned Addl. Sessions Judge or not.
(43). Before proceeding further, it may be stated here that in the present case, PW1 Todaram, PW 2 Bholki, PW 3 Sarju, PW 4 Rekharam and PW 6 Sitaram are the injgred witnesses and PW 1 Todaram is the son of the deceased, PW 2 Bholki is the wife of the deceased, PW 3 Sarju is the wife of PW 1 Todaram, PW 4 Rekharam is the son of the deceased and PW 6 Sitaram is also the son of the deceased and since these witnesses are injured witnesses, therefore, their presence at the place of occurrence cannot be doubted. In this respect, the decision of the Hpn'ble Supreme Court in Avdesh v. State of UP (6), may be seen.
(44). Since it has been argued by the learned counsel for the accused appellants that it is a case of free fight, therefore, 1 would like to say something what the free fight 'is.
Eree Fight
(45). In Gajanand v. State of Uttar Pradesh (7), the Hon'ble Supreme Court has beautifully defined what the free fight is in the following manner-
'A free fight is 'when both sides mean to fight from the start, go out to fight and there is 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. When one party after preparation and armed with deadly weapon went to the other party's house, it could not be said in these circumstances that the both parties were pre-determined for a trial of strength and had a free fight, rather the first party was the aggressor.'
(46). In this respect, it may be stated here that when two contending parties, each armed with sharp-edged weapons, clashed and in the course of free fight, someInjuries were Inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner. It would be otherwise if the deceased and his party were unarmed or armed with weapons which were not lethal or dangerous and the accused's party used sharp weapons. In that case the accused must be deemed to have acted in a cruel or unusual manner.
(47). Once the conclusion is drawn that injuries sustained by the persons were in the course of a free fight, it would result in the following conclusions:-
1. That only those persons who are proved to have caused injuries can be held guilty for the injuries caused by them. For that, the decisions of the Hon'ble Supreme Court in Kanbi Nanji Virji and Ors. v. State of Gujarat (8), Bachan Singh v. State of Punjab (9), and Balaur Singh v. State of Punjab (10), may be seen.
2. That in a case of sudden mutual fight between the two parties, there can be no question of invoking the provisions of Section 148 IPC and aid of Section 149IPC for the purpose of imposing constructive criminal liability on accused. The accused in such a case can be convicted only for the injuries caused by him by his individual acts. For that, the decisions of the Hon'ble Supreme Court in Puran v. State of Rajasthan (II), and Boota Singh v. State of Punjab (12), may be seen.
3. That in a case of free fight, no right of private defence is available to either party and each Individual is responsible for his own acts. For that, the decisions of the Hon'ble Supreme Court in Vishvas Aba Kurane v. State of Maharashtra (13), Munir Ahmed and Ors. v. State of Rajasthan (14) and Madho Ram v. State of Uttar Pradesh (15), may be seen.
(48). Keeping the above principles in mind particularly the principles of free fight and applicability of Sections 148 or 149 IPC, the facts of the present case are being critically and analytically examined.
(49). Before proceeding further, it may be stated here that the learned Sessions Judge vide order dated 14lh July, 1993 took cognizance on the application under Section 319 Cr.P.C. against nine accused persons for the offence under Sections 302, 147, 148, 323, 323/149, 325, 325/149, 326 and 326/149 IPC. That order of the learned Sessions Judge was set aside by this Court vide order dated 9.3.1995 in S.B. Cr. Misc. Petition No. 566/93.
Author of injuries of deceased Hardevaram
(50). From post mortem report Ex.P/6, it appears that deceased Hardevaram received three Injuries, out of which, injury No.3 was found fatal and the same was swelling haematoma 13cm x 10cm on the right tempero-parietal region.
(51). There is a clear cut evidence in the statements of injured witnesses, namely, PW1 Todaram, PW 2 Bholki, PW3 Sarju, PW4 Rekharam and PW6 Sitaram and other eye witnesses, namely, PW7 Raghunath and PW8 Satyanarain that accused appellant Mithuram gave a lathi blow on the head of the deceased Hardevaram and this injury, as per post mortem report Ex.P/6, was found to be fatal one.
(52). Therefore, It is held that fatal injury on the head of the deceased Hardevaram was caused by accused appellant Mithuram.
Author of Injuries of injured Todaram, PW1
(53). As per injury report Ex.P/22 of PW 1 Todaram, he received three injuries and injury No.2 i.e. lacerated wound of 1-1/2 cm x 1cm on lower lip centrally with the portion cut off from lip, was found to be grevious one and the same was caused by blunt object.
(54). PW 1 Todaram states in his statement that when he tried to save his father deceased Hardevararri, he was beaten by accused appellant Mithuram with lathi and he was being caughthold by accused appellant Mithuram and, thereafter, his lips were cut by accused appellant Mithuram and he was put on the ground.
(55). Thus, it is held that injury No.2 of PW 1 Todaram, which was found to be grevious one, was caused by accused appellant Mithuram.
Author of Injuries of injured Bholki, PW
(56). From injury report of PW2 Bholki Ex. P/20, it appears that she received three simple injuries, which were caused by blunt'object.
(57). PW 2 Bholki has stated in her statement that she was beaten by Ramli andall accused beat her. However, she has not specifically mentioned the names of anyof the accused appellants.
(58). Thus, it is held that it is not clear which accused appellant caused injuries to PW2 Bholki.
Author of injuries of injured Sarju, PW 3
(59). From the injury report of PW3 Sarju Ex.P/21, it appears that she received three simple injuries by blunt object.
(60). PW3 Sarju has clearly stated in her statement that she was beaten by accused appellants Premaram and Shravan.
(61). Thus, it is held that injuries to PW3 Sarju were caused by accused appellants Premaram and Shravan.
Author of injury of injured Rekharam, PW 4
(62). From the injury report Ex.P/24 of Rekharam, PW4, it appears that there was swelling around the right ankle and in X-ray, a fracture of right tibia bone was seen and thus, his injury was found to be grevious one.
(63). PW 4 Rekharam in his statement has clearly stated that he was thrown from the roof to the ground by accused appellant Likhmaram, which resulted in the fracture of his leg.
(64). Thus, it is held that grevious injury to PW4 Rekharam was caused by accused appellant Likhmaram.
Author of Injuries of injured Sitaram, PW 6
(65). From the injury report Ex.P/19 of PW6 Sitaram, it appears that he received five injuries, which were found to be simple in nature and caused by blunt object.
(66). PW 6 Sitaram in his statement has stated that accused appellant Manguram gave lathi blow on his head and other accused also beat him. But, he specifically mentioned the name of accused appellant Manguram and from his injury report Ex.P/19, it is also clear that he received injury on head.
(67). Thus, it is held that injury on head of PW 6 Sitaram was caused by accused appellant Manguram.
(68). So far as the injuries of accused appellants Likhmaram, Shravanram and Mithuram are concerned, they have been mentioned above.
(69). From perusing the statements of injured witnesses, namely, PW1 Todaram, PW2 Bholki, PW 3 Sarju, PW 4 Rekharam and PW 6 Sitaram and statement of PW7 Raghunath, it appears that dispute took place between the parties with regard to possession of room and it has also come in evidence that though it is alleged that partition has taken place between the parties, but there is no written document to support that contention and dispute arose for taking possession of the room. From this fact, it can easily be said that the fight which has taken place between the parlies cannot be said to be a pre-meditated fight.
(70). Not only this, all the prosecution injured witnesses in their evidence have admitted that there is a cross case against them and it was instituted on the report of the accused appellant Hanumanram and charge sheet is also filed for the offence under Sections 147, 323/149 IPC etc. against PW1 Todaram, PW4 Rekharam, PW 6 Silaram and deceased Hardevaram in the present case and against one Paras.
(71). It is also clear from the evidence on record that none of the prosecution witnesses has explained the injuries of the accused appellants.
(72). A survey of the evidence on record leaves an impression that there was a free fight between the two groups, namely, prosecution parly and the accused party, in which both the parlies sustained injuries. Therefore, in the present case, fight between the prosecution party and accused party is nothing, but a free fight and the results, which have been enumerated above in the case of free fight would ensue, namely:-
(1) That each accused appellant would be individually liable for the injuries caused by him.
(2) That there can be no question of invoking the provisions of Section 148 IPC and aid of Section 149 IPC for the purpose of imposing constructive criminal liability on accused and each accused has to be convicted for the injuries caused by him by his individual acts.
(3) That no right of private defence would be available lo either party.
(73). For the reasons slated above, the findings of the learned Addl. Sessions Judge convicting the accused appellants for the offence under Section 148 IPC and with the aid of Seclion 149 IPC are liable to be set aside and each accused appellant would be convicled for the injuries caused by him by his individual acts.
The case of accused appellant Mithuram
(74). As earlier held, the fatal injury on the head of the deceased Hardevaram was caused by accused appellant Mithuram by lathi and from medical evidence, it is also clear that there was only one injury on the head of the deceased. For causing that head injury to deceased, the accused appellant Mithuram has been convicted under Section 304 Part-I IPC by the learned Addl. Sessions Judge.
(75). Now it is to be seen whether the present case is covered by Seclion 304 Part II IPC or not, as argued by the learned Counsel for the accused appellants.
(76). Section 299 IPC defines culpable homicide as the act of causing death (i) with the intention of causing death, or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such act is likely to cause death.
(77). The first and second clauses of the Section refer to intention apart from knowledge and the third clause refers to knowledge apart from intention.
(78). The word 'homicide' has been derived from Latin terms homo (man) and cido (cut). Homicide is the killing of a human being by a human being.
(79). Whenever, a Court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problems in three stages. The question to be considered at the first stage would be whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death, lends to the second stage for considering whether the act of the accused amounts to 'culpable homicide' as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 IPC, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Section 300. If theanswer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the first pan of Section 304 IPC.
(80). Section 300 IPC deals with murder. It does not define 'murder'. Section 299' explains 'culpable homicide'. This Section sets out circumstances when culpable homicide amounts to murder and when it does not amount to murder. Murder is an aggravated form of culpable homicide. The existence of one of the four conditions turns culpable homicide into murder while the special exception reduce the offence of murder again to culpable homicide not amounting to murder.
(81). For convenience, Clause (4) of Section 300 IPC is reproduced hereinbelow:-
'If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.'
(82). Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the act causing death. Clause (4) is not intended to apply to cases In which a person intends to inflict an injury likely to cause death because the Section speaks of knowledge and not intention.
(83). In judging of knowledge had by the accused, we must consider the circumstances: the blow that to one person, or under ordinary circumstances, may not, in the ordinary course of nature, be likely to cause death, may yet, imminently dangerous to another, or under special circumstances.
(84). For convenience, Exception 4 of Section 300 IPC is reproduced hereinbelow:-
'Exception 4- Culpable homicide is not murder If it is committed without premeditation in a sudden fight, in the heat of a passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation- It is immaterial in such cases which party offers the provocation or commits the first assault.'
(85). To Invoke this Exception, four requisites must be satisfied, namely,
(i) It was a sudden fight;
(ii) there was no premeditation;
(iii) the act was committed in a heat of passion; and
(iv) the assailant had not taken any undue advantage or acted in a cruel manner.
(86). Thus, the position in respect of offences under Sections 302, 304 Part-I and 304 Part-II IPC may be summarised as follows:-
1. That if the act of the accused is covered by Clauses First, Second and Third of Section 300 IPC, then it would amount to culpable homicide amounting to murder punishable under Section 302 IPC.
2. That if the act of the accused is covered by any of the Exceptions (Five Exceptions) of Section 300 IPC, then it would amount to culpable homicide not amounting to murder punishable under Section 304 Part-1 IPC.
3. That if the act of the accused is covered by Clause (4) of Section 300, then it would amount to culpable homicide not amounting to murder punishable under Section 304 Part-II IPC.
(87). In the present case, there is no dispute on the point that there was a sudden fight between the parties and there was no pre-meditation and accused appellant Mithuram gave a lathi blow on the head of deceased under heat of a passion and he has simply gave one blow. It means, accused appellant Mithuram has not taken any due advantage or acted in a cruel manner.
(88). Therefore, the act of accused appellant Mithuram would fall under Exception 4 of Section 300 IPC and the learned Addl. Sessions Judge has rightly convicted the accused appellant Mithuram for the offence under Section 304 Part-I IPC. To say that knowledge should be attributed on the part of the accused appellant Mithuram is not correct one, as injury on the head of the deceased, which was found to be fatal one, was caused by accused appellant Mithuram with force.
(89). Thus, the findings of the learned Addl. Sessions Judge convicting the accused appellant Mithuram for the offence under Section 304 Part-I IPC are liable to be confirmed.
(90). As already held above, the accused appellant Mithuram caused grevious injury to PW1 Todaram. For causing this grevious injury to PW1 Todaram, the accused appellant Mithuram is liable to be convicted for the offence under Section 325 IPC.
(91). For the reasons stated above, the accused appellant Mithuram was rightly, convicted by the learned Addl. Sessions Judge for the offence under Section 304 Part-I IPC for causing death of the deceased Hardevaram and he is also liable to be convicted for the offence under Section 325 IPC for causing grevious injury to PWI Todaram individually, instead of 325/149 IPC.
(92). However, accused appellant Mithuram is entitled to be acquitted of the charges for the offence under Sections 148 and 323/149 IPC. Hence, findings of the learned Addl. Sessions Judge convicting accused appellant Mithuram for the offence under Sections 148 and 323/149 IPC are liable to be set aside.
The case of accused appellant Likhmaram
(93). Since in the present case, none of the accused appellant is going to be convicted for the offence under Section 148 IPC and with the aid of Section 149 IPC, therefore, this accused appellant Likhmaram is also entitled to be acquitted of the charges for the offence under Sections 304 Part-1/149, 323/149 and 148 IPC and the findings of the learned Addl. Sessions Judge convicting him for the said charges are liable to be set aside.
(94). However, as already held above, accused appellant Likhmaram caused grevious injury by blunt object to PW4 Rekharam and for causing that grevious injury to PW 4 Rekharam, the accused appellant Likhmaram is liable to be convicted for the offence under Section 325 IPC and thus, the findings of the learned Addl. Sessions Judge convicting him for the offence under Section 325 IPC are liable to be confirmed.
The cases of accused appellants Premaram and Shravan
(95). Since in the present case, none of the accused appellant is going to be convicted for the offence under Section 148 IPC and with the aid of Section 149 IPC, therefore, the accused appellants Premaram and Shravan are also entitled to be acquitted of the charges for the offence under Sections 304 Part-I/149,325/149 and 148 IPC and the findings of the learned Addl. Sessions Judge convicting them for the said charges are liable to be set aside.
(96). However, as already held above, accused appellants Premaram and Shravan caused injuries to PW3 Sarju and for causing injuries to PW3 Sarju, accused appellants Premaram and Shravan are liable to be convicted under Section 323 IPC instead of 323/149 IPC.
The case of accused appellant Manguram
(97). Since in the present case, none of the accused appellant is going to be convicted for the offence under Section 148 IPC and with the aid of Section 149 IPC, therefore, this accused appellant Manguram is also entitled to be acquitted of the charges for the offence under Sections 304 Part-I/149, 325/149 and 148 iPC and the findings of the learned Addl. Sessions Judge convicting him for the said charges are liable to be set aside.
(98). However, as already held above, accused appellant Manguram caused injury on the head of PW6 Sitaram by blunt object and for causing that injury on the head of PW6 Sitaram, accused appellant Manguram is liable to be convicted for the offence under Section 323 IPC instead of 323/149 IPC.
The case of accused appellant Hanumanram
(99). Since in the present case, none of the accused appellant is going to be convicted for the offence under Section 148 IPC and with the aid of Section 149 IPC, therefore, this accused appellant Hanumanram is also entitled to be acquitted of the charges for the offence under Sections 304 Part-I/149, 325/149, 323/149 and 148 IPC and the findings of the learned Addl. Sessions Judge convicting him for the said charges are liable to be set aside and his appeal deserves to be allowed.
On point of sentence
The case of accused appellant Mithuram
(100). The accused appellant has been convicted for the offence under Sections 304 Part-I IPC and. 325 IPC instead of 325/149 IPC. For the offence under Section 304 Part-I IPC, he has been sentenced to seven years SI by the learned Addl. Sessions Judge. In my opinion, looking to the entire facts and circumstances of the case, this sentence of seven years SI awarded by the learned Addl. Sessions Judge is just and proper and does not call for interference by this Court and thus, the order of sentence passed by the learned Addl. Sessions Judge sentencing accused appellant Milhuram for the offence under Section 304 Part-1 IPC is liable to be maintained.
(101). The accused appellant Mithuram has also been convicted for the offence under Section 325 IPC instead of 325/149 IPC and looking to the entire facts and circumstances of the case, for the offence under Section 325 IPC, the accused appellant Mithuram is sentenced to undergo three years SI and to pay fine of Rs. 2000A, in default of payment of fine, to further undergo SI for one month.
(102). Both the substantive sentences of the accused appellant Mithuram shall run concurrently.
The case of accused appellants Likhmaram, Shravan, Manguram and Premaram
(103). The accused appellants Shravan, Manguram and Premaram have been convicted for the offence under Section 323 IPC instead of 323/149 IPC and accused appellant Likhmaram has been convicted for the offence under Section 325 IPC.
(104). Looking to the entire facts and circumstances of the case and the facts that accused appellants Likhmaram and Shravan have also sustained injuries and these accused appellants Likhmaram, Shravan, Manguram and Premaram have remained in PC and JC from 4.7.1992 to 15.10.1992 and from 1.9.1998 to 23.10.1998, I think it just and proper to sentence the accused appellants Likhmaram for the offence under Section 325 IPC and accused appellants Shravan, Manguram and Premaram for the offence under Section 323 IPC, to the period already undergone by them, as the period, which they have already undergone is sufficient sentence to meet the ends of justice.
(105). The result of the above discussion is that:-
1. The appeal of the accused appellant Hanumanram is allowed and the judgment and order dated 1.9.1998 passed by the learned Addl. Sessions Judge, Parbatsar so far as they relate to accused appellantHanumanram, are set aside and he is acquitted of all the charges framed against him.
2. The appeal of the accused appellant Mithuram is partly allowed in the manner that he is acquitted of the charges for the offence under Sections 323/149 and 148IPC and the judgment & order of the learned Addl. Sessions Judge, Parbatsar dated 1.9.1998 convicting and sentencing him for the said offences are set aside. But, conviction and sentence passed against appellant Mithuram by the learned Addl. Sessions Judge, Parbatsar vide judgment and order dated 1.9.1998 for the offence under Section 304 Part-1 IPC as well as for the offence under Section 325 IPC instead of 325/149 IPC are maintained.
Both the substantive sentences shall run concurrently.
3. The appeal of the accused appellant Likhmaram is partly allowed in the manner that he is acquitted of the charges for the offence under Section 304 Part-I/149, 323/149 and 148 IPC and the judgment and order of the learned Addl. Sessions Judge, Parbatsar dated 1.9.1998 convicting and sentencing him for the said offences are set aside, but his conviction recorded by the learned Addl. Sessions Judge, Parbatsar vide judgment dated 1.9.1998 for the offence under Section 325 IPC is maintained.
However, for the offence under Section 325 IPC, the accused appellant Likhmaram is sentenced to the period already undergone by him. The order of sentence passed by the learned Addt. Sessions Judge, Parbatsar sentencing him for the offence under Section 325 IPC stands modified accordingly.
Since he is on bail, he need not surrender and his bail bonds standdischarged.
4. The appeal of the accused appellants Shravan, Manguram and Premaram is partly allowed in the manner that they are acquitted of the charges for the offence under Sections 304 Part- 1/149, 325/149, and 148 IPC and the judgment and order of the learned Addl. Sessions Judge, Parbatsar dated 1.9.1998 convicting and sentencing them for the said offences are set aside.
But, accused appellants Shravan, Manguram and Premaram are convicted for the offence under Section 323 IPC instead of 323/149 IPC.
However, for the offence under Section 323 IPC, the accused appellants Shravan, Manguram and Premaram are sentenced to the period already undergone by them. The order of sentence passed against them by the learned Addl. Sessions Judge for the offence under Section 323/149 IPC stands modified accordingly. Since they are on bail, they need not surrender and their bail bonds stand discharged.