JUDGMENT 1. 1. The present appeal is directed against the judgment of the learned Additional Sessions Judge, Rajgarh, Distt, Churu in Sessions Case No. 8/99 dated 27.9.2002 Learned Additional Sessions Judge has convicted the accused appellants as under : Offences Punishment 1. All accused appellants Sec. 148 Indian Penal Code One year R.I. 2. Sajjan Kumar Sec. 302 Indian Penal Code Life imprisonment and fine of Rs. 2000/-. In default of payment of fine six months R.I. All other accused appellants Sec. 302/149 Indian Penal Code 3. Rajkumar & Rejveer Sec. 324 Indian Penal Code One year R.I. All other accused appellants Sec. 324/149 Indian Penal Code One year K.I. 4. All accused Sec. 323 Indian Penal Code Three months R.I. Appellants Sec. 447 Indian Penal Code One month S.I. 2. The prosecution was initiated on the basis of the first information report recorded on the basis of the statement of PW 1 Dharamveer given to Nathu Singh ASI. According to the statement of Dharmveer PW 1 which resulted into the first information report, it was alleged that there is animosity in between the complainant and the accused party and litigation is pending in between them. It was alleged that on 11.10.1998 at about 9.30 A.M. complainant, his father Ramdutt, his brother Rajpal were in their field. Rajpal was tilling the field and the first informant and Ramdutt were working in the field. It was said that on the western side of the field, Mamchand S/o Birbal has his field. He came on the boundary of the complainant's field and started tilling the part of boundary of the field with plough. He was detested by the first informant, his brother and father. 3. At that time, all other accused persons who were working in their field, came to the spot armed with various weapons. Accused Sajjan Kumar soon after arrival gave a 'Rampadi' blow on the head of Ramdutt. Consequently, complainant's father fell on the ground. On this, other accused persons started giving him beating by various weapons. While the complainant and his brother Rajpal intervened to rescue, complainant Dharamveer was given an axe blow by Rajkumar on his head. Accused Rajveer gave 'Barchi' blow on his left leg. Sajjan Kumar gave 'Kampadi' blow on the left hand of Rajpal. Accused Somveer gave a lathi blow on the shoulder. While the complainant and his brother Rajpal intervened to rescue, complainant Dharamveer was given an axe blow by Rajkumar on his head. Accused Rajveer gave 'Barchi' blow on his left leg. Sajjan Kumar gave 'Kampadi' blow on the left hand of Rajpal. Accused Somveer gave a lathi blow on the shoulder. On raising shouts, Jogender, Ajay Kumar and wife of Rajpal Sunita arrived. They were also given beating by various weapons. After that, Ramjilal, Chandrabhan and Dharamveer S/o Sohanlal also arrived at the scene of occurrence. After beating the injured were taken to hospital at Rajgarh. During the course of treatment, Ramdutt died in the hospital. The statement of complainant as was recorded in the hospital was sent to police station, where a formal FIR No. 197/98 was registered. After recording of the first information report, charge-sheet was filed against the accused persons and the case came to the trial Court for trial. Charges were framed against the accused persons as follows : Sajjan Kumar Sections 148, 302, 324/149, 323, 447 Indian Penal Code Rest of accused persons Sections 148, 302/149, 324/149, 323 & 447 Indian Penal Code 4. The accused persons denied the charges and claimed trial. At the trial, the prosecution examined 17 witnesses and produced 71 various documents. Accused Sajjan Kumar in the statement under section 313 Indian Penal Code stated that Ramdutt, Dharamveer came to their field and his father Harish Chandra was given beating. In this process, Ramdutt and Dharamveer sustained injuries. The information was given to him by his father. Accused Bhateri in her statement stated that Ramdutt and Dharamveer wanted to obstruct the way of the field and in this connection a litigation was pending in the Revenue Baord, Ajmer. The gram panchayat intervend in the dispute and common Well was assigned to them after charging the estimated amount. With this, the irrigation of the field of Ramdutt etc. got stopped and they were keeping grudge for this. 5. On the day of incident, from the side of Pilani, complainant party entered their field and started beating Harishchandra on which she, Rajkumar and Mamchand intervened. In this process, they received injuries and Ramdutt also received injuries. After getting injured, Ramdutt went to his field where he fell down. Other accused persons have not taken any specific defence and have generally denied the prosecution case. Accused Rajveer denied the prosecution case. In this process, they received injuries and Ramdutt also received injuries. After getting injured, Ramdutt went to his field where he fell down. Other accused persons have not taken any specific defence and have generally denied the prosecution case. Accused Rajveer denied the prosecution case. He stated that he is serving in forces and he had been on leave. He claimed that he was in Jasasar where his wife is serving as nurse and his name has been incorporated as accused because complainant wanted his services to be affected. 6. After considering the case of the prosecution and defence, the learned trial Court came to the conclusion that the death of Ramdutt was homicidal. The fact of homicidal death has been found to be admitted by both the parties. Learned Trial Judge has also noticed that fact of Ramdutt falling after getting injured into his field is also an admitted. Fact, Genesis of fight is the dispute between the parties in relation to the way and boundary dispute. The trial Judge has noticed that though the defence as alleged that the occurrence has taken place in the field of Harish Chandra and Mamchand but the events suggest that it had only taken place in the field on complainant. 7. The injured would naturally be expected to be present at the scene of occurrence and they are PW 1 Dharamveer, PW 2 Rajpal, PW 4 Jogender Singh, PW 5 Ajay Kumar and PW 6 Jagveer. The independent witnesses PW 7 Dharamveer S/o Sohanlal and Chandrabhan PW 8 have also supported the case. The first information was recorded immediately after the police made inquiries from the injured in the hospital. The blood was found only in the field of the complainants and therefore, the incident can safely be said to have occurred in the field of complainants. Had it been the case as suggested by the defence that the incident has happened in the field of the accused persons, then the trial of blood should have come from their field to complainants' field, which is not the case. The broken bangles have also been found from the alleged scene of occurrence in the field of the complainants. 8. The broken bangles have also been found from the alleged scene of occurrence in the field of the complainants. 8. As regards the injuries sustained by the accused, it has been noticed that the accused have sustained injuries by blunt weapons and if the complainants were assailants, then the injuries would have been serious and by sharp edged weapons. All the injuries sustained by the complainants are simple injuries and by blunt weapons and number of injuries is also very insignificant. Injured Rajkumar has three injuries. Bhateri has three injuries and Harishchandra has three injuries which are of simple in nature and of blunt weapon. According to the medical report, they are the injuries which could be self inflicted also. Thus, the defence suggestion that the accused reacted in right of private defence was not accepted because the manner of occurrence and the injuries did not correspond to the suggestion made by the defence. The trial Curt also noticed that the investigation on the basis of the complainants' statement has resulted into filing of final report. 9. The prosecution case is based on eye-witness account. The principal eye-witness is the first informant Dharamveer. According to the statement of Dharamveer, as given in the Court is that while he alongwith his father and brother were working in the field at that time Mamchand came on the site alongwith his plough and started tilling the western boundary of the field. Ramdutt and Rajpal tried to stop him to do it on which the accused Sajjan Kumar, Rajkumar, Rajveer, Rajendra, Rajpal S/o Roopchand, Somveer, Roopchand, Bhateri, Harishchandra, Mamchand came armed with various weapons. No sooner they arrived, Sajjan Kumar gave a 'Rampadi' (a sharp edged weapon) blow on the head of his father Ramdutt. He fell on the ground and thereafter all the accused persons started giving beating to his father. 10. When the witness Dharamveer and Rajpal tried to rescue, Rajkumar gave an axe blow on the head of this witness Dharamveer and Rajveer gave a 'Barchi' blow on his leg. Sajjan Kumar gave 'Rampadi' blow on the left hand of Rajpal and Somveer gave lathi blow on the shoulder of Rajpal. On hearing the shouts, Jogender, Jagveer, Ajay Kumar and wife of Rajpal, Sumitra also came there. From the village side, Chandrabhan, Ramjilal and Dharamveer came. The accused made their escape good. Sajjan Kumar gave 'Rampadi' blow on the left hand of Rajpal and Somveer gave lathi blow on the shoulder of Rajpal. On hearing the shouts, Jogender, Jagveer, Ajay Kumar and wife of Rajpal, Sumitra also came there. From the village side, Chandrabhan, Ramjilal and Dharamveer came. The accused made their escape good. According to this witness, the condition of his father was very serious, therefore, he was shifted to hospital at Rajgarh. His father Ramdutt succumbed to his injuries at 11.45 A.M. He and Jogender were kept as indoor patients. Police came and took their statement which is Exp./1. The cross-examination as directed to this witness basically rests on the animosity of both the parties who are descendants of a common ancestor. There was a dispute in relation to the field and its division. The animosity is admitted. The incident is admitted. The manner is the question which is to be decided by the Court. 11. According to the defence, the accused persons were not the aggressors and it was the victim party who made the assault. The witness PW 2 Rajpal is the another eye-witness. He speaks almost the same version which PW 1 has spoken. PW 4 Jogender Singh is the witness who intervened and got assaulted at the hands of the accused persons. He speaks of the presence of the accused persons and the fact of assault by them. He also asserted that the accused had gone to their field to cause assault on the deceased. PW 6 Jagveer who speaks that after hearing the noise towards the field, he also joined him, so also did PW 7 Dharamveer. PW 8 Chandrabhan also falls in the category of witnesses who had joined the other witnesses after the occurrence. The medical witnesses have spoken about the injuries. The most important question in this case is that the deceased had sustained four injuries and there are as many as nine accused persons named. Will it be prudent to consider the case of common object as has been found by the trial Court to be sustainable? 12. Admittedly, both the parties are descendants of a common ancestor and in this background, learned counsel for the appellant asserted that there was no question of forming an object in the nature of common object of causing death of the deceased or anybody else. 12. Admittedly, both the parties are descendants of a common ancestor and in this background, learned counsel for the appellant asserted that there was no question of forming an object in the nature of common object of causing death of the deceased or anybody else. The nature of the injuries sustained by the other persons is simple in nature. It is only the deceased Ramdutt that grievous injury has been caused allegedly by Sajjan Kumar. Had it been the intention of the accused persons to cause death of Ramdutt or any other person, then the other accused persons would also have used their weapons in brutal manner. The result shows that other accused 'persons have caused simple hurts even by sharp edged weapons. Thus the inference of Section 149 Indian Penal Code as drawn by the trial Court against all the accused persons is not made out. 13. If case of Section 149 Indian Penal Code against all the accused persons is made out, then only assailant who has been particularized to have caused injury to the deceased is Sajjan Kumar. No witness has assigned any particular injury to any of the other accused persons to have caused to the deceased. Since, particular injury has not been assigned to any other accused than Sajjan Kunmar, then it is to be seen as to what is the credibility of the allegations of the prosecution. 14. The case of the prosecution is that the accused persons used weapons to assault. The accused are nine in number and injuries are four. Therefore, their implication has been overstated by the prosecution witnesses and it is urged by the learned counsel for the defence that the support of Section 149 Indian Penal Code is not made out. 15. Learned counsel for the appellant further asserted that the occurrence has not taken place by premeditation. It was only on the spur of the moment that when there was a dispute of boundary of the field that dispute culminated into a quarrel. The accused assaulted on the spur of the moment, causing injuries to the deceased. Thus, a case under section 302 Indian Penal Code is also not made out against the accused Sajjan Kumar. The accused persons have also sustained injuries though they are superficial and according to the medical evidence, they could be self-inflicted. The accused assaulted on the spur of the moment, causing injuries to the deceased. Thus, a case under section 302 Indian Penal Code is also not made out against the accused Sajjan Kumar. The accused persons have also sustained injuries though they are superficial and according to the medical evidence, they could be self-inflicted. Nonetheless, no explanation is coming forward for these injuries, therefore, it was a case where private defence was available to the accused and the offence under section 302 Indian Penal Code would not be made out against any of the accused persons. 16. Per contra, the learned counsel for the State submitted that it was the highhandedness of the accused persons that all of them have assaulted the deceased. The accused persons in their self righteousness believed that they had a right to violate the boundary. The conduct of the accused persons show that they had no regard for life of the deceased. Sajjan Kumar gave such a heavy blow on the head of the deceased that it caused multiple fracture. There is liver rupture on the person of the deceased but who was the author of the injury is not possible to identify on the basis of the evidence given by the prosecution. The injury by 'Rampadi' was sufficient to cause death of the deceased, therefore, learned Public Prosecutor submitted that there could not have been any other object than the one which has been concluded by the trial Court. Learned Public Prosecutor supported the inference drawn by the learned trial and said that the case of the prosecution stands amply proved. 17. We have given our thoughtful consideration and have perused the record. From the evidence available on record and the circumstances as stand out, the fight has taken place without pre-meditation. The object of the accused party was to take advantage of the position where they wanted the boundary of the field to be won over by them. When prohibited, they reacted and assaulted the victim party. None of the accused persons except Sajjan Kumar has caused any injury which can be described to be of grievous nature. In the eye-witnesses account, it is not available to find that any of the accused except Sajjan Kumar had caused any specific injury which can be said to be of grievous in nature. None of the accused persons except Sajjan Kumar has caused any injury which can be described to be of grievous nature. In the eye-witnesses account, it is not available to find that any of the accused except Sajjan Kumar had caused any specific injury which can be said to be of grievous in nature. The accused have also sustained certain injuries though very insignificant, according to the opinion of the doctor, they could even be self-inflicted. But when a group of people assault another group, unless there are circumstances which show that the assault was made after premeditation, the import of consequences of Section 149 read with Section 302 Indian penal Code should not be invoked. Development of the common object on the spur of the moment is also not inferable. 18. In the instant case, the deceased has sustained injuries at the hands of Sajjan Kumar. No other assault in particular has been asserted by the prosecution witnesses. There is only an omnibus allegation against all the accused persons which is not supported by the medical evidence. If all the accused persons would have assaulted Ramdutt, then there must have been a large number of injuries. Out of nine accused persons, only one accused has been particularized and there is no other accused name who caused a particular injury to the deceased. In his background, the author of the injuries on the deceased except Sajjan Kumar is not identifiable. In this background, it would not be safe to conclude that the accused persons nurtured a grudge and had the common object to cause death of the deceased.and therefore, it would not be safe to import Section 149 Indian Penal Code to convict all the accused persons of the offence under section 302 Read with 149 Indian penal Code. 19. Once the implication of Section 149 Indian Penal Code is ruled out, then this Court will have to examine as who can be held to be responsible for causing the death of the deceased. If the evidence of the eye-witnesses is looked into in conjunction with the cross-examination, this Court feels that the injury on the head as inflicted by the accused-appellant Sajjan Kumar is the injury responsible for causing death of the deceased. If the evidence of the eye-witnesses is looked into in conjunction with the cross-examination, this Court feels that the injury on the head as inflicted by the accused-appellant Sajjan Kumar is the injury responsible for causing death of the deceased. May be that there was another injury which contributed to it but it is not possible to decipher as to who was the person responsible for causing that injury. Therefore, the case under section 302 Indian Penal Code charged against Sajjan Kumar stands proved by the eye-witnesses. The conviction of the other persons under section 302/149 Indian Penal Code is not liable to be sustained. 20. After the case of injuries to the deceased is settled then we have to look for the injuries of the other victims. They have sustained injuries by blunt weapons and sharp edged weapons. The trial Court has convicted the accused persons for the offences under sections 323, 324 read with 149 Indian Penal Code and also under sections 447 & 148 Indian Penal Code. Since the trespassing is amply proved, injury to persons of victim party is also established by other evidence, the convictions of accused are not liable to be disturbed. 21. Learned counsel for the appellant also raised the question of one of the accused person Rajveer who is serving in Army. He is the one who by his conduct has shown that he wanted to avoid the process of law. He left his native place prematurely and joined the services before his leave got exhausted. He evading the process of law shows his guilty mind. This conduct alone with eye-witnesses' account shows his presence on the scene of occurrence. Therefore, he has also been convicted by the trial Court. 22. In the result, the appeal is partly allowed. The convictions of the accused Sajjan Kumar as ordered by the trial Court are maintained. The conviction of the other accused persons under section 302 read with 149 Indian Penal Code is quashed. however, the conviction of all the accused under other Sections i.e. 323, 324, 324/149, 447 & 148 Indian Penal Code are maintained along with sentence of fine. They are sentenced to the bail period already undergone, however, the sentence of fine is maintained.Appeal partly allowed. *******