JUDGMENT 1. - learncd Additional Sessions Judge No. 1 Alwar in session case No 30/1977 has convicted each of the accused-appellants under Section 304 part II IPC read with Section 149 IPC and each of the accused-appellants has been further convicted under Section 148 and 324 or 324 r/w Section 189 IPC Each of them ha been further convicted under Sec 323 or Section 323/149 IPC Under the first count each of the accused-appellants has been sentenced to five years' rigorous imprisonment, under the second count one years rigorous imprisonment and under the third count to undergo one years rigorous imprisonment and under the last count the appellants were sentenced to undergo six months rigorous imprisonment Appellant Bhagu was given benefit of Probation of Offenders Act 1958. The substantive sentences were ordered to run concurrently. 2. On March 19, 1977 the general elections for House of People (Lok Sabha) were taking place in the country including the State of Rajasthan Village Dongara under Police Station Kishangarhbus District Alwar was under Alwar Parliamentary constituency and the votes were being caste in that constituency also on March 19, 1977. The case of the prosecution is that PW Sher Khan was a blind person and he was going to caste the vote and was accompanied by Heera PW. 2. Bhagu accused-appellant is said to have arrived there and asked Sher Khan to caste bis vote in favour of the candidate belonging to Janta party. Heera PW 2 gave out that Sher Khan will caste his vote for Congress (I) party. There was some wordy exchange in between Heera and Bhagu accused-appellant. Some intervened and the matter ended there Sher Khan and Heera proceeded towards the booth and Sher Khan is said to have caste his vote in favour of Congress (I) party. After casting his vote when Heera was sitting beneath the tree where the identity slips were being distributed It is alleged that besides Heera Nenu PW. 1. Narsi PW. 3 Barket PW. 5 Jumma PW.7. Sallo PW. 8 Andbu PW. 9, Bhogla PW. 10 and Jhabu PW. After casting his vote when Heera was sitting beneath the tree where the identity slips were being distributed It is alleged that besides Heera Nenu PW. 1. Narsi PW. 3 Barket PW. 5 Jumma PW.7. Sallo PW. 8 Andbu PW. 9, Bhogla PW. 10 and Jhabu PW. 11 were ah sitting It is alleged that all the accused-appellants were armed with weaoont and accused-appellant Chawad and Karan are said to have been armed will spears and started giving beating to deceased Chaw, aged about 30 years and the accused-appellant Chawad is said to have inflicted a blow on the head of Chaw with blunt side of spear and Karan inflicted blow to him will his `tanchia and other accused-appellants also inflicted injuries to others namth Nenu PW. 1 Narsi PW. 3. Barkat PW. 5. A parcha Bayan Ex P/I of Nenu PW. 1 was recorded and that is the FIR in this case. 3. A case was registered and investigation was set in motion. It may be stated that Chaw died as a result of injuries and the post-mortem was conducted on the dead-body of the deceased and injuries of others were examination Dr. Satya Pal Yadav. PW. 14. Dr. Yadav on conducting the autopsy on the dead body of law found that there were two injuries on his person namely- (i) Swelling over scalp 4 cm X 3.5 cm area on right front of region at the hair margin. (ii) Haematoma over scalp in its mid area 8 cm X 6 cm extending on both parietal region, more on the right side. On opening the body of Chaw the doctor found that there were following six internal injuries including haematoma on the right front of region:- (i) Sub scalp haematoma 5 cm 3 cm in the right frontal region corresponding to injury No. (1) above. (ii) Sub-scalp thick haematoma 10 cm X 6 cm area on top and middle area of skull more on the right side corresponding to the injury No. 2 mentioned above. (iii) Fracture skull, linear of the right parietal bone upto the front of bone 14 cm X linear as shown in the figure on the left side. (iv) Extra dural blood clots more on the right side corresponding to the injury No. 3 mentioned above. (iii) Fracture skull, linear of the right parietal bone upto the front of bone 14 cm X linear as shown in the figure on the left side. (iv) Extra dural blood clots more on the right side corresponding to the injury No. 3 mentioned above. (v) Sub dural thick blood clots over brain 8 cm X 5 cm more on the right parietal region pressing over brain. (vi) Area of the brain corresponding to the injury No. 5 mentioned above is compressed. 4. On examining Narsi PW. 3 Dr. Satyapal found that there was an incised would 1X2X2 cm on the dorsal side of left fore arm, 3 cm from wrist joint oblique in direction. The injury was caused by sharp weapon and was simple in nature. Similarly, Jhabu was examined and the doctor found on his person a lacerated wound 1 X .5 X 5 cm on the dorsal side of lift fore-arm 19 cm from the wrist joint oblique in nature. On examining Nainu the doctor found that there were three injuries on his person, namely- (i) lacerated wound 2.5 X 3X 2 cm on the middle of the forehead just left to the midline. (ii) lacerated wound 1 X .2 X .2 on the left side of the fore-heam 3 cm from midline and 2 cms above supra orbital margin. (iii) lacerated wound l.X 2 X 1 cm on the left side of the fore-head. 7 cms from midline oblique in nature. On examining Barkat the doctor found that there were two injuries on his person- (i) lacerated wound 1 X .5 X .5 cm on the dorsal sind of index finger of the left hand at the level of proximal inter phalyngeal joint. The injury of Jhabu was X-rayed and it was found that there was fracture of upper I /3 shaft of left ulnaThe accused persons were recovered and some weapons were recovered from them, but there is no evidence that they were used in the crime, nor there is report of Serologist about their having been used. 5. After the prosecution evidence, some of the accused persons were examined. The defence of the accused is that in fact they were beaten by the witnesses and others and they have received injuries. 5. After the prosecution evidence, some of the accused persons were examined. The defence of the accused is that in fact they were beaten by the witnesses and others and they have received injuries. It may be stated that though there is no injury report of any of them, but from the perusal of the arrest memo as well as from the statement of Dy S.P. Tulsiram PW 6 it does appear that the three accused appellants namely Chawad, Parsoo and Bhagu also received injuries. As this fact shall be relevant, it may be mentioned here that from the prusal of arrest memo of accused Chawad (Ex P/6) it does appear that when he was arrested on March 19, 1977 the accused took up a plea on the same day and it was noticed by the arresting officer that there were injuries on his person, on his right shoulder, left thigh, head and back of his right hand and on his neck. It further appears from the arrest memo Ex. P. 6 of Parsu that there was swelling on his leg, on his left hand, on the wrist and on his right shoulder. From the perusal of arrest memo of accused Bhagu (Ex. P. 10) it appears that there was a bruise on his right thigh. The learned trial court held that the accused appellants were members of unlawful assembly and the common intention of which was also to cause such injuries to Chaw deceased which were likely to cause his death or atleast with the knowledge that death may be caused. He therefore convicted each of the accused-appellants under Section 304 Part II IPC and sentenced them as aforesaid, Learned trial court taking into consideration that the age of accused Bhagu is below 21 years and he therefore extended him the benefit of Probation of Offenders Act whereas such benefit of the aforesaid Act was not extended to others. 6. I have heard learned counsel for the appellants and the Public Prosecutor and have gone through the record of the case. It is contended by the learned counsel for the appellants that the prosecution has failed to prove the injuries on the person of three accused persons. 6. I have heard learned counsel for the appellants and the Public Prosecutor and have gone through the record of the case. It is contended by the learned counsel for the appellants that the prosecution has failed to prove the injuries on the person of three accused persons. According to the learned counsel taking into consideration the fact that a case was set up by the accused persons, of free fight and in a case of free fight application of Section 19 IPC is excluded. Learned counsel for the appellants contended that the burden to prove the exception which the accused persons plead is light and the accused person who pleads exception is entitled if upon a consideration of the material on record a reasonable doubt is created, the accused is entitled to acquittal (sic). It is next contended by the learned counsel for the appellant that even if assumed, though not accepted, the accused persons formed unlawful assembly the very fact that as per the prosecution case the two appellants Chawad and Karan were armed with sharp weapon, but they did not use its sharp side goes to show that the intention of the accused persons was atleast to cause the death of anyone. The learned Public Prosecutor has supported the judgmert of the learned trial court. 7. The facts of the case have been given in the earlier parts of this judgment. It may be stated that as per the case of the prosecution there is no previous enmity in between the accused-appellant on one side and the deceased Chaw and and others on the other. As per the case of the prosecution on the day of incident polling was taking place in the school. It has come in the evidence of P. W. 7 Jumma that in the village Dongra there are 250 houses of May to which the deceased Chaw belonged and there are 50 houses are of refugees i e. the cast of accused-appellants The occurrence is said to have taken place because the accused persons wanted Sher Kh3n to vote for Janta party candidate whereas Heera PW 2 wanted him to vote for Congress (I) party. Thus, the statement of Sher Khan is important PW. 4 Sher Khan states that the votes were being polled on that day and he was going towards the polling booth to caste his vote. Thus, the statement of Sher Khan is important PW. 4 Sher Khan states that the votes were being polled on that day and he was going towards the polling booth to caste his vote. According to him Heera met him in the way and accompanied him. Sometimes thereafter Bhagu appellant met him and asked him as to in whose favour he was going to caste his vote. He replied that he will caste his vote in favour of Congress (1) candidate Bhagu then asked him to vote for Janta, Sher Kher further states that he accompanied Heera as he was blind, to caste his vote. He clearly stated that there was no altercation in his presence between Heera and Bhagu, on the question for whom Sherkhan should vote. In the light of statement of Sher Khan, the statement of Heera PW. 2 that there was some exchange of words between him and Bhagu cannot be relied upon All that can be said is each Heera and accused Bhagu wanted Sher Kjtan to vote for Congress (I) and Janta respectively. It has come in evidence of the prosecution witnesses that the occurrence has taken place after Sher Khan had caste his above. A reference has already been made to the case of defence set up by the accused-appellants and at the cost of repetition it may be, stated that so far as accused persons are concerned they too have received injuries and notwithstanding the fact that no attempt was made on behalf of the accused appellants to prove the injuries received by them, from a bare reference to their arrest memos as well as to the statement of Tulsiram Dy. S.P. it can be said that at the time of their arrest number of injuries were found on the persons of three appellants, namely, Chawad, Parsoo and Bhagu It may be stated that so far as deceased Chaw is concerned, he received two injuries. The number of injuries received by the witnesses including the injuries received by deceased Chaw will come to 8 or 9 and three appellant also received injuries and it can be said that it appears to be a case of free-light. The prosecution has not come out with true sequence and events of the incident and the origin of the fight can be said to be shrouded in mystry. The prosecution has not come out with true sequence and events of the incident and the origin of the fight can be said to be shrouded in mystry. It does not appeal to reason that after the votes by Sher Khan had been caste the accused would have caused injuries to the prosecution witnesses and to deceased Chaw with the common object to put end to the life of the deceased, who had nothing to do with it. 8. It is well known that in a case of free fight the application of Section 149 IPC not attracted and each member can be held responsible for the injuries caused by him. It may be stated that in the FIR though it was stated that the accused appellant Chawad was armed with a spear and Karan was armed with a tanchia, but it was not stated that bulnt side of spear or tanchia was used. This case was developed in the trial of the case. When confronted with this contravention, the witness said that it was given out to the police, but the police might not have written it. 9. It has already been said earlier that the three accused-appellants received injuries and the law is settled that the accused persons who plead exception on the ground that received injuries they are entitled to acquittal if upon consideration of material on record a reasonable doubt is created in the mind of the court about the guilt of the accused. Reference can be made to Rishi Kash Singh v. State AIR 1970 Allahabad-51 . The majority decision in the case of Praboho v. Emperor, AIR 1941 Allahabad 402 (FB was still held to be a good law in the case of Rishi Kesh Singh (supra). In the instant case taking into consideration the facts and circumstances of the case, moreso to the omission of prosecution to explain the injuries of the three accused persons. I am of the opinion that the case of the prosecution is rendered doubtful and the accused-appellants are entitled to acquittal. 10. Consequently, I allow this appeal, set aside the judgment of conviction and sentence as well as extending the benefit of the provisions of Probation of Offenders Act to one of the accused appellants Bhagu and acquit all the accused-appellants of the charges levelled against them. They are on bail. 10. Consequently, I allow this appeal, set aside the judgment of conviction and sentence as well as extending the benefit of the provisions of Probation of Offenders Act to one of the accused appellants Bhagu and acquit all the accused-appellants of the charges levelled against them. They are on bail. They need not surrender to their bail bonds which are hereby discharged.Appeal allowed. *******