Surgyani v. State of Rajasthan — 1989 DIGILAW 211 (RAJ)

S.S. BYAS, J.—The appeal is directed against the judgment dated May 16, 1987, by which the learned Additional Sessions Judge No. 1, Bharatpur convieted appellants Surgyani, Babu, Prabhu and Bhawad under sections 302/149 IPC and accused Ram Singh under Sec. 302 I.P.C. and sentenced each of them to imprisonment for life with a fine of Rs. 1000/-, in default of payment of fine to . further undergo six months rigorous imprisonment. By the same judgment, the appellants were further convicted under sections 307, 307/149, 147 and 148 IPC and were sentenced to different term of imprisonment. Appellants Ram Singh and Prabhu were also convicted under Sections 3/25 and 27 Arms Act and were sentenced to six months rigorous imprisonment. 2. The incident is alleged to have taken place at about 1 P.M. on 25.7.85 in or near the field of one Bhagwan Singh Jat, situate in Moja Karoli, Police Station Nadbai, district Bharatpur. 3. Briefly stated, the prosecution case is, that the field of Bhagwan Singh Jat (D.W. 1) is situate in Moja Karoli, shown by mark-V in the site plan, Ex. P/3. In the east of this field, are situate the fields and in the east of these fields is situate village Karoli as shown in Ex. P/3. In the south of Bhagwan Singhs field, is situate the Nagla (habitation) of Meenas and Jatas as shown in Ex. P/3. The village Karoli and Nagla are on the low level, whereas the field of Bhagwan Singh is some what on higher level. In the rainy season, the rain water collects in the field of Bhagwan Singh Jat. In the east of his field, a clay wall nearly 3" in height is raised to check the flow of water from flowing towards the village. On the day of incident, the appellants accompanied with Siriya, Jangli, Kailash, Patram, Natha and Balbir who are either Meenas or Jatawas by castes went to the field of Bhagwan Singh. There were heavy rains in those days and the rain water had collected in the field of Bhagwan Singh. They had guns, farshis and lathis with them. They started cutting the eastern embankment (clay-wall) of Bhagwan Singhs field in order to divert the flow of water towards village Karoli. There were heavy rains in those days and the rain water had collected in the field of Bhagwan Singh. They had guns, farshis and lathis with them. They started cutting the eastern embankment (clay-wall) of Bhagwan Singhs field in order to divert the flow of water towards village Karoli. Seeing this, the villagers, namely, Nahar Singh, Deep Chand, Arjun Singh, Vijay, Dhani Ram, Bhagwan Singh, Johri, Gangoli, Devi Ram, another Deep Chand and Ratan went to the field of Bhagwan Singh Jat in order to prevail over the appellants and their companions not to cut the embankment. They requested the appellants and their associates not to cut the embankment and that annoyed the appellants. Accused Ram Singh fired his gun, which hit Gangoli on his neck and face. Gangoli fell down. Accused Babu fired his gun, which hit Vijay, Arjun, Dhani Ram and Bhagwan Singh. Accused Prabhu fired his gun, which hit Johri. Accused Bhabhar struck a blow of Farshi to Nahar Singh. Gangoli, on account of the gun shot injuries, fell down and became unconscious. The appellants and their companions thereafter retired and left the place. The injured including Gangoli were taken first to Nadbai hospital and thereafter to General Hospital, Bharatpur. Gangoli did not survive and passed away while being taken to Nadbai. Deep Chand, P.W. 1 went to Police Station Nadbai and presented a written report, Ex. P/1 of the incident at about 7.15 P.M. on the same day. The Police registered a case against the 5 appellants and six other persons (11 in all) and proceeded with the investigation. The investigation was conducted by P.W. 21 Daulat Ram A.S.I. He went to Government Dispensary, Nadbai and prepared the inquest report of the dead body of Gangoli. The postmortem examination of the dead body of Gangoli was conducted at about 8 A.M. on 26.7.1985 by P.W. 14 Dr. Jain the then Medical Officer-in-charge, Primary Health Centre, Nadbai. He found 8 external injuries and some internal injuries on the victims dead body. All these injuries were opined to have been caused by a gun shot. The injuries were ante-mortem. The cause of death of Gangoli, according to Dr. Jain, was gun shot injury to the right lung, which caused haemorrage shock and death. The post-mortem examination report prepared by him is Ex. P/19. All these injuries were opined to have been caused by a gun shot. The injuries were ante-mortem. The cause of death of Gangoli, according to Dr. Jain, was gun shot injury to the right lung, which caused haemorrage shock and death. The post-mortem examination report prepared by him is Ex. P/19. The injuries of the other injured persons Nahar Singh, Vijay Singh, Arjun Singh, Dhani Ram, Bhagwan Singh and Johari were also examined by Dr. Jain and Dr. Chandlani, P.W, 16, the then Medical Jurist, General Hospital, Bharatpur. The injury reports issued by them are Ex. P. 16 to Ex.P. 18 and Ex.P. 20 to Ex.P.22. The X-ray examination of the injuries of Nahar Singh, Bhagwan Singh, Johari and Dhani Ram was also made. Some fractures were detected vide reports Ex.P. 23 to Ex.P. 32 and Ex.P. 41. The blood stained clothes of the deceased and the injured persons were seized and sealed. The appellants and their companions were arrested and in consequence of the information furnished by them, two guns were recovered. The gun srecovered, on examination in the forensic Science Laboratory, Rajasthan, Jaipur, were found in working order and to have been fired some time before the examination. 4. On completion of the investigation, the police submitted a challan against the 5 appellants and six other persons, namely, Siriya, Jangali, Kailash, Pat Ram, Natha and Balbir in the court of the Additional Munsif and Judicial Magistrate No.2, Baharatpur, who in his turn, committed the case for trial to the court of Sessions. The case came up for trial before the learned Additional Sessions Judge. Bharatpur, who framed charges under Sections 147, 148, 302, 302/149, 307, 307/149 IPC and under Sections 3/25 and 27 of the Arms Act against them, to which they pleaded not guilty and faced the trial. Some of them denied their presence on the spot at the time of incident. Some of them, of course, admitted their presence at the time of the incident at the spot, but pleaded a counter version. According to them, their Nagla is situate on a lower level than the field of Bhagwan Singh Jat (D.W. 1). It was a rainy season and there were heavy rains in those days. The water had collected in the field of Bhagwan Singh. According to them, their Nagla is situate on a lower level than the field of Bhagwan Singh Jat (D.W. 1). It was a rainy season and there were heavy rains in those days. The water had collected in the field of Bhagwan Singh. On the day of incident, the members of the complainant party went to the field of Bhagwan Singh Jat and cut a portion of embankment of his field to divert the flow of water into their Nagla. When they requested the members of the complainant party not to do so, the members of the complainant party fired shots with their Guns at them, as a result of which the appellants Babu, Babbad, Prabhu and their associates Jangali (co-accused) Nathi (co-accused) and Raghuveer sustained injuries. A report of the incident was lodged by them at Police Station Nadbai. The police registered a case and that is still pending trial. 5. In support of its case, the prosecution examined 21 witnesses and filed some documents. In defence, the accused examined 3 witnesses and filed some documents. Accused Jangali passed away during trial. On the completion of trial, the learned Sessions Judge found no incriminating material as against Siriya, Kailash, Pattern, Natha and Balbir. They were, consequently acquitted of the offences they were charged with. Learned Sessions Judge found the prosecution case substantially true and the charges duly established against the five appellants. They were, therefore, convicted and sentenced as mentioned at the very out set. Aggrieved against their conviction, the appellants have come up in appeal. 6. We have heard Mr. Jagdeep Dhanker for the appellants and the learned Public Prosecutor Mr. G. C. Chatterjee. We have also gone through the case file carefully, 7. Mr..Dhanker did not challenge the opinion of PW 14 Dr. Jain and P.W. 16 Dr. Chaudhary, who examined the injured persons and conducted the medico legal autopsy over the victims dead body. We, therefore, need not touch the evidence of these two medical experts in detail. Suffice it to say that Gangoli died on account of gun shot injuries It may be mentioned that no scorching or burning was detected around any of his wounds. That shows that shot was fired from some distance. PW 14 Dr. Jain who conducted the medicolegal autopsy expressed the opinion that the shot, which hit deceased Gangoli was fired from a distance of 15 to 20. That shows that shot was fired from some distance. PW 14 Dr. Jain who conducted the medicolegal autopsy expressed the opinion that the shot, which hit deceased Gangoli was fired from a distance of 15 to 20. He expressed the same opinion about the range of the shot, which hit the other injured persons. The death of Gangoli was homicidal and natural. 8. Before we deal with the contention of Mr. Dhanker, it would be useful to briefly see the findings recorded by the learned Additional Sessions Judge. They are; (1) the appellants had cut the eastern embankment (Clay-wall) of the field of Bhagwan Singh in order to divert the flow of water towards the village; (2) the members of the complainant party who reside in the village forbade the appellants not to cut the embankment and that angered them. (3) Three of the appellants, namely, Ram Singh, Prabhu and Babu had guns. Babad had a Farsha, Surgyani had a lathi. Ram Singh fired his Gun at Gangoli and thereby caused his death. Prabhu fired his gun at Johari (PW 13), and caused injuries to him. Babu fired his gun, which hit P.W. 12 Bhagwan Singh, PW 8 Arjun, PW 3 Vijay and PW 11 Dhani Ram. Accused Bhabhar struck a blow of Farshi to PW 4 Nahar Singh; (4) the accused were the aggressors. They had no right of private defence in respect of person or property; (5) the appellants had formed an unlaw ful assembly with the common object of committing the murder of Gangoli, Johari, Bhagwan Singh, Arjun, Vijay and Dhani Ram and (6) the appellants and their associates also received injuries in this very incident, but since they were aggressors, the mere presence of injuries on their persons was inconsequen-tial. 9. In assailing the conviction, Mr. Dhanker took us through the evidence of all the 10 eye witnesses, viz., PW 1 Deep Chand, PW 3 Vijay, PW 4 Nahar Singh, PW 6 Devi Ram, PW 7 Ratan, PW 8 Arjun, PW 9 another Deep Chand, PW 11 Dhani Ram. PW 12 Bhagwan Singh and PW 13 Johari. He contended that the field in which the incident had taken place, was neither in possession of the complainant party nor in possession of the appellants. It was in possession of DW 1 Bhagwan Singh Jat, Masariwala. PW 12 Bhagwan Singh and PW 13 Johari. He contended that the field in which the incident had taken place, was neither in possession of the complainant party nor in possession of the appellants. It was in possession of DW 1 Bhagwan Singh Jat, Masariwala. Some of the appellants and their associates received injuries in this very incident. The eye witnesses have not explained as to how the injuries were caused to the appellants and their associates. Under these circumstances, a right of private defence is available to the appellant The finding of the court below that the appellants were the aggressors is not correct. In the alternative, it was argued that even if the right of private defence is not available to the appellants, there is no evidence to show that they were aggressors. Both the parties i.e. the complainant and the accused wanted to cut the embankment of the field of Bhagwan Singh, DW 1 in order to divert the flow of water to the other side. This led to a fight between them. As such, it is atleast a case of free fight. When there is a case of free fight, there is no scope for invoking either Sec. 34 or Sec. 149 IPC. Each accused is then liable for his individual act. 10. In reply, the learned Public Prosecutor strived hard to maintain the finding of the court below that the appellants were the aggressors. 11. We have taken the respective submissions into consideration. Admi-ttedly, the incident had taken place at the place adjacent to the field of Bhagwan Singh, DW 1. The embankment shown by marks A to B and B to C were found cut and damaged by the Investigating Officer when he visited the site and prepared the site plan, Ex. P/3. The Investigating Officer Daulat Ram, PW 2 admitted in his cross-examination that when he inspected the site, he found the portion A to B of the fields of Hukam and Nathi cut. He further stated that he also found the portion D to E of the fields of Hukam and Nathi cut. He further admitted that the house of the appellants and their associates are situate on a level lower then that of the field of Bhagwan Singh and the field of Hukam and Nathi. He further stated that he also found the portion D to E of the fields of Hukam and Nathi cut. He further admitted that the house of the appellants and their associates are situate on a level lower then that of the field of Bhagwan Singh and the field of Hukam and Nathi. These facts will have to be constantly kept in view in order to find out as to how and in what manner the incident could have taken place. In order to find out as to how the incident had taken place, we will also have to keep the entire back-ground in view. If the embankment shown by mark B to C is cut, the water collected in the field of Bhagwan Singh will flow towards village Karoli. Likewise, if the embankment A to B of the field of Bhagwan Singh and the embankment D to E of the field of Hukam and Nathi are cut, the water of the field of Bhagwan Singh will flow towards the houses of the appellant and other. Meenas and Jatawas as shown in the site plan, Ex. P/3. 12. According to PW 16 Dr. Chaudhary, the gun shot wounds were found on the persons of appellants Babu and Bhawad (convicted by the lower court) and Nathi (co-accused acquitted by the court below). The gun shot injuries were also found on the person of Raghuveer, who was not challaned by the police. The injuries caused by other weapons were found" on accused Jangali (who died during the pendency of the trial) and appellant Prabhu. The presence of these injuries on the persons of appellants and their associates leave no room for doubt that guns were fired by the members of the complainant party. The members of the complainant party were also armed with lathis. 13. Keeping all these facts and circumstances in view, what can be said is that both the parties wanted to cut the embankment of the field of Bhagwan Singh in order to divert the flow of water towards the houses of the others. The complainant party cut the embankment to divert the flow of water towards the houses of the appellants and other Meenas and Jatawas. The appellants and their associates cut the other side of the embankment of the field of Bhagwan Singh to divert the flow of water towards the village. The complainant party cut the embankment to divert the flow of water towards the houses of the appellants and other Meenas and Jatawas. The appellants and their associates cut the other side of the embankment of the field of Bhagwan Singh to divert the flow of water towards the village. In order to have these cuts in the embankment, the members of both the parties assembled on the spot i.e. near the field of Bhagwan Singh, DW 1 fully armed with lethal weapons, like guns and lathis. They, therefore, came with a determination to cut the embankment. The field of Bhagwan Singh belonged to none of the parties. In these circumstances, when both the parties were trying to cut the embankment the only conclusion, to which we can safely arrive at is, that they went to fight. It thus appears to be a case of "free fight". 14. In Ahmed Sher Vs. Emperor (1), it was observed as under: "A free fight is one where both sides mean to fight from the start, go out to fight and there is a pitched battle. The question of who attacks and who defends in such a fight is wholly immaterial and depends upon the tactice adopted by the rival commanders." These observations were quoted with approval by their Lordships of the Supreme Court in Gajanand V/s State of UP. (2). 15. In a free fight, there is no common object or common intention. Since there is no common object in a free fight, the accused in such a case cannot be convicted by having recourse to Section 149 I.P.C. In Ishwar Singh Vs. State of U.P. (3), their Lordships observed in para 7 as under: "Having regard to the injuries sustained by some of the prosecution witnesses and also by two of the accused, it seems that there was a free fight between the two sides. The defence version of the occurrence may not also be quite true, but considering all the circumstances, we do not think it is possible to say with certainty that the accused were the aggressors though undoubtedly the prosecution side got the worse of it after the fight was started. If really the accused were not the aggressors, no case either under. If really the accused were not the aggressors, no case either under. Section 147 or Section 148 of the Penal Code can be maintained against them, and then it is for the prosecution to prove the individual assaults of which there is no evidence. The conviction of appellants Illam Singh. Harpal, Brahm Singh and Deep Chand under Section 324 and Section 323 of the Penal Code, found against each of them on the basis of Section 149 of the Code is not therefore sustainable." In K.N. Virji V/s State of Gujarat (4), it was observed : "Where there was a melee at the time of the incident and the two groups indulged in a free fight resulting in injuries to persons of both groups and death of two, if the court comes to the conclusion that the injuries sustained by the persons were in the course of a free fight, then only those persons who are proved to have caused injuries or death can be held guilty of the offence individually committed by them." In Vishwas Vs. State of Maharastra (5), it was observed: "It is well settled that in a free fight no right of private defence is available to either party and each individual is responsible for his own act." 16. We are quite conscious of the fact that merely because the injuries are found on the persons of the members of the accused party, a case of free fight does not spring-up. It is equally true that the mere presence of injuries on the accused persons is also not sufficient to show that a right of private defence of person was available to him. Whether a right of private defence of person was available or whether it is a case of free fight, depends on the given facts and circumstances in a case. The case will have to be judged in the background of all the available circumstances, antecedent to the Incident during the incident and post incident. The evidence of the prosecution witnesses that it was a one side attack on them by the appellants, appears to be baseless. When the Investigating Officer visited the site, the embankments were found cut. There is no positive evidence to show as to which of the parties first indulged in cutting the embankment. The evidence of the prosecution witnesses that it was a one side attack on them by the appellants, appears to be baseless. When the Investigating Officer visited the site, the embankments were found cut. There is no positive evidence to show as to which of the parties first indulged in cutting the embankment. We, therefore, find it difficult to accept that the trouble started in the manner suggested by the prosecution. The non-explanation of the injuries on the persons of the appellants and their associates by the prosecution and the other infirmities in the prosecution case do not permit us to believe that the trouble originated in the manner alleged by the prosecution. We are of the considered view that both the parties arrived well armed on the spot to cut the embankment. They, thus came with a determined object to cut the embankments even by the use of violence. The members of both the parties weilded their weapons against each other. We have, therefore, no hesitation to say that here is a case of free fight where the parties meant to fight with the other. 17. We are, therefore, unable to maintain the finding of the court below that the appellants were the aggressors. We have held above that it is a case of free fight. As such there is no scope to invoke Section 34 or 149 I.P.C. As such we are unable to maintain the conviction of accused Babu, Bhawad, Prabhu and Surgyani under Sections 302 read with Sec. 149 and 147 or 148 I.P.C. However, they will be responsible for the injuries caused by them to the victims. 18. Accused Babu, Bhawad and Prabhu have been convicted under Sec. 307 I.P.C. Prabhu fired the shot at Johari and Babu fired the shot, which hit Bhagwan Singh, Arjun, Dhani Ram and Vijay Singh. Accused Bhawad struck a blow of Farshi to Nahar Singh. There was no previous enmity between these appellants and the members of the complainant party before this incident. The incident took place on account of a dispute over cutting of embankments. As such we are unable to say that these three appellants, Prabhu, Babu and Bhawad had any intention to kill Johari, "Bhagwan Singh, Arjun, Dhani Ram and Vijay Singh. Section 307 IPC requires the intention to kill, which we do not find here in the instant case. The incident took place on account of a dispute over cutting of embankments. As such we are unable to say that these three appellants, Prabhu, Babu and Bhawad had any intention to kill Johari, "Bhagwan Singh, Arjun, Dhani Ram and Vijay Singh. Section 307 IPC requires the intention to kill, which we do not find here in the instant case. However, Prabhu and Babu fired the guns and Bhawad weilded the Farshi. Their offence, therefore, falls under Sec. 308 and not under Sec. 307 IPC because they atleast made attempts to commits culpable homicide not amounting to murdet. The conviction of these three appellants Prabhu, Babu and Bhawad under Sea 307 IPC is, therefore, not maintainable. However, they should be convicted under Sec. 308 IPC. 19. Coming to accused Ram Singh, it was argued by Mr. Dhanker that no doubt he fired his gun at the deceased victim Gangoli and killed him. There was no previous enmity as stated earlier between the two parties. All that too place was on the cutting of embankments of a field, which was not in possession of any of them. The gun was fired from some distance and it was by chance that the shot hit Gangoli. It was argued that in these circumstances, the conviction of accused Ram Singh under Sec. 302 IPC is not free from risk. The offence made out against him may comes within the ambit of Sec. 304 Part II IPC. The contention is not without force. 20. We have already stated that there was no bad blood between appellant Ram Singh and Gangoli before this incident. All that took place was on account of the parties cutting the embankments of the field of Bhagwan Singh to divert the water to the other side. The shot was fired by Ram Singh from a distance of 15, ro 20 feet, which hit Gangoli. There is no evidence to show that he wanted to inflict that particular injury to Gangoli by the shot of his gun, which ultimately caused the death of Gangoli. Clause Thirdly of Sec. 300 requires that the offender must intend to cause that particular injury which is sufficient in the ordinary course of nature to cause death. It was a random shot of accused Ram Singh, which hit Gangoli and killed him. Clause Thirdly of Sec. 300 requires that the offender must intend to cause that particular injury which is sufficient in the ordinary course of nature to cause death. It was a random shot of accused Ram Singh, which hit Gangoli and killed him. In these circums-tances, we are unable to maintain the conviction of accused Ram Singh under Sec. 302 IPC. However, since the death has been caused, the case must come alteast within the II nd part of Sec. 304 IPC. He did the act with the knowledge, though without any intention to cause death. The offence committed by accused Ram singh, therefore, falls under Sec. 304 Part-II IPC. as the act was done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. 21. Accused Surgyani has not been convicted for any offence on account of his individual act. He has been convicted under Sections 147, 307/149 and 308/149 IPC. Since Sections 147 and 149 are not applicable in a case of free fight, he is entitled to complete aquittal. 22. In the result; (1) the appeal of accused Ram Singh is partly allowed. His conviction under Sections 307/149, 148, 302 IPC and the sentences awarded thereunder, are set-aside. Instead he is convicted under Sec. 304 Part II IPC and is sentenced to seven years rigorous imprisonment with a fine of Rs. 1000/-, in default of payment of fine to further undergo six months like imprisonment. His conviction under Section 3/25 of the Arms Act and the sentence awarded thereunder are maintained. His sentences shall run concurrently, (2) the appeal of accused Surgyani is allowed. His conviction under Sections 147, 307/149 and 302/149 IPC and the sentences awarded thereunder are set-aside. He is acquitted of the said offences He is in custody and shall be forthwith set at liberty, if not wanted in any other case; (3) the appeal of accused Babu, Bhawad, and Prabhu is partly allowed. Their convictions under Sections 302/149,148 and 307 IPC are set-aside. Instead they are convicted under Sec. 308 IPC and each is sentenced to three years rigorous imprisonment. The coviction of accused Prabhu under S. 3/25 and 27 of the Arms Act and the sentences awarded to him thereunder are maintained. His sentences shall run concurrently. 23. Their convictions under Sections 302/149,148 and 307 IPC are set-aside. Instead they are convicted under Sec. 308 IPC and each is sentenced to three years rigorous imprisonment. The coviction of accused Prabhu under S. 3/25 and 27 of the Arms Act and the sentences awarded to him thereunder are maintained. His sentences shall run concurrently. 23. In case accused Babu, Bhawad and Prabhu have served out the sentences, they shall be immediately released, if not wanted in any other case. 24. The appeal shall stand accordingly disposed of.