Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 2986 (RAJ)

Jeet Mal v. State of Rajasthan

2005-11-14

SHASHI KANT SHARMA, V.K.BALI

body2005
Honble BALI, J.–In the occurrence that took place on 23.5.1995 at 6 a.m. whereas Bhagwan Singh from the side of complainant died, Prasadi (PW-5) father of Bhagwan Singh, Bal Mukand and Padam Singh PW-6 and PW-7 respectively, distant relation of Bhagwan Singh, suffered injuries in the same very incident, five persons from the side of accused namely Ramesh, Balmukund, Bhartu, Prasadi and Padam were injured. The incident dated 23.5.1995 gave rise to cross cases based upon rival versions of the parties each claiming right of self defence and styling the other party as aggressor. (2). In the joint trial that was held with regard to cross cases lodged against each other, learned Trial Court vide orders dated 20.3.2001 held appellant Jeet Mal guilty for offence u/s 302 IPC and sentenced him to undergo imprisonment for life and also to pay fine of Rs. 100/- and in default of payment of fine, to further undergo seven days R.I. He was also convicted u/s 325/34 IPC and sentenced to undergo imprisonment for a period of one year and to pay a fine of Rs. 100/-, and in default of payment of fine, to further undergo seven days RI. He was also convicted u/s 323 IPC and sentenced to undergo three months R.I. Aggrieved against the said order, he has filed D.B. Criminal Appeal No. 191/2001. Vide same order, Mohan Singh, Sahab Singh and Jal Singh were also held guilty for offence u/s 302/34 IPC and sentenced likewise. They were also convicted u/s 325/34 and 323 IPC and sentenced in the manner co-accused Jeetmal was sentenced. These appellants have joined their co-appellant Jeetmal in filing the aforesaid appeal. It is significant at this very stage to mention that fifteen persons were tried for various offences like 325 IPC from the side of complainant in the cross-case as mentioned above. Five out of the 15 were convicted. Surely and indeed, it is so that both the parties could be convicted if a finding was to be returned that it was a case of free fight. (3). Learned counsel representing the appellant while taking us through the details of the prosecution evidence, has urged that if it was a case of free fight, then, there could be no applicability of Sec. 34 IPC and therefore, the appellants could be convicted only for individual acts committed by each of them. (4). (3). Learned counsel representing the appellant while taking us through the details of the prosecution evidence, has urged that if it was a case of free fight, then, there could be no applicability of Sec. 34 IPC and therefore, the appellants could be convicted only for individual acts committed by each of them. (4). The contention raised by the learned counsel, as noted above, has no exception whatsoever and the same has thus to be accepted. With a view, however, to find out as to what was the individual role of the appellants, it shall be necessary to find out the allegations made in the FIR which was lodged on 24.5.1995 at 8.05 a.m. By Prasadi. It was a written report (Ex.P.14) on the basis of which formal FIR (Ex.P.29) came to be registered by B.R. Parewa, SHO (PW-15). While unfolding the prosecution version, it was stated that at 6 a.m. On 23.5.1995, the complainant was sitting in a hutment made near his tubewell in the land situated in the Village. His son Bhagwan Singh was operating the engine. Jeetmal came at their tubewell and started abusing. While so abusing, he said that we people had widened the water course towards our side and filled it with water. The complainant dissuaded Jeetmal from abusing but he did not desist. While abusing, he went towards the house and came along with his brother Mohan, his sons Mahaveer and Sahab Singh and Jal Singh son of Mohan and Bhanwar son of Bhagwat. All these people were armed with sticks (Lathi). No sooner they came, Mahaveer caught hold of his son Bhagwan Singh from behind and stated that he should be given a stick blow. Meanwhile, Jeetmal gave a lathi blow on the head of Bhagwan Singh. Second blow was given by Mohan Singh on the same place on account of which Bhagwan Singh became unconscious and fell on the ground. When he tried to rescue Bhagwan Singh, he too was given lathi blow on his head by Jeetmal. Thereafter, all these persons gave lathi blows to both of them on account of which they sustained number of injuries. When they cried for help, Bal Mukand and Padam came running there. They were also beaten by Sahab Singh, Jal Singh and Bhanwar Singh with lathis. They also suffered injuries on their person. Thereafter, all these persons gave lathi blows to both of them on account of which they sustained number of injuries. When they cried for help, Bal Mukand and Padam came running there. They were also beaten by Sahab Singh, Jal Singh and Bhanwar Singh with lathis. They also suffered injuries on their person. On account of noise of fight, people from the village had also collected. The village people saved them. At the time of fight, Ummedi wife of Jal Singh had also come there. She had given a lathi blow on the feet of Padam. While going, these people took away the cane containing 20 litres diesel which was lying on the tubewell. On the cane, name of Bhagwan Singh was written. Jeetmal took away handle of the engine. Jal Singh took away spade lying there. FIR gives some more details of the facts but as the same are not relevant, we need not mention them. (5). Prosecution examined Dr. B.L. Meena (PW-3) who stated that on 23.5.1995 at 11.30 a.m. he had medico-legally examined Bhagwan Singh son of Prasadi, aged 40 years and found following two injuries on his person:– ``1. Vertical lacerated wound 2.5 x .5 cm x 2 bone deep on mid vertex at fronto parietal region with swelling fresh clotted blood. 2. Abraided bruise 2 x 1.5 cm on mid lower lip red. (6). He had referred the injured for x-ray examination and after receipt of the x-ray report, he opined that the injuries sustained by Bhagwan Singh were serious in nature and were sufficient in the ordinary course of nature to cause death. Doctor further stated that when he examined the patient and upto the time he received x-ray report, on the basis of symptoms of the patient he was of the view that the injury could cause death. As to whether the injury was sufficient in the ordinary course of nature to cause death, he could give opinion after the injury was healed and in other situation after seeing the symptoms. (7). Dr. P.N. Mathur, examined as PW-16 stated that on 25.9.1995 at 10 a.m. he had conducted post mortem examination on the dead body of Bhagwan Singh. He died at 8.30 p.m. on 24.5.1995. He found following two injuries on the dead body of Bhagwan Singh:– ``1. Surgically made stitched wound 25 cm having 20 stitches on Rt. (7). Dr. P.N. Mathur, examined as PW-16 stated that on 25.9.1995 at 10 a.m. he had conducted post mortem examination on the dead body of Bhagwan Singh. He died at 8.30 p.m. on 24.5.1995. He found following two injuries on the dead body of Bhagwan Singh:– ``1. Surgically made stitched wound 25 cm having 20 stitches on Rt. fronto parietal and temporal region with drainage tube in middle part of wound. 2. Surgically made stitched wound having 24 stitches, 27 cm long on it. fronto parietal and temporal region with drainage tube in middle part of the wound. (8). It may be mentioned here that even though there were three injuries found on the dead body of Bhagwan Singh but in the post mortem report, mention is only of two injuries as mentioned above. Prosecution also proved vide medico legal report (Ex.P.32) that Prasadi had sustained eight injuries on his person out of which one was grievous caused by a blunt weapon whereas rest of the injuries sustained by him were simple. Bal Mukand sustained six injuries by blunt weapon out of which one was grievous vide Ex.P.12. (9). Relevant facts culled above wound reveal that there were two injuries on the person of Bhagwan Singh. Whereas one injury was found on the head, other injury was on his lip. In so far as FIR is concerned, the first informant clearly stated that Jeetmal had given a lathi blow on the head of Bhagwan Singh whereas second blow was given by Mohan Singh on the same place on account of which Bhagwan Singh became unconscious. It is clearly made out from the statements of the doctor who were examined by the prosecution that Bhagwan Singh had sustained only one injury on the head. That being the position, all the witnesses when examined in court changed their version by attributing the second injury on the elbow of Bhagwan Singh, to Mohan Singh. It is significant to mention that Bhagwan Singh sustained no injury on his elbow. In so far as fatal injury is concerned, the same was attributed to Jeetmal only. As mentioned above, in a case of free fight, accused can be held guilty only for his individual act. In other words, there cannot be any vicarious liability and thus applicability of Sec. 34 or 149 IPC in such a situation has to be completely ruled out. As mentioned above, in a case of free fight, accused can be held guilty only for his individual act. In other words, there cannot be any vicarious liability and thus applicability of Sec. 34 or 149 IPC in such a situation has to be completely ruled out. Jeetmal alone thus can be attributed intention to cause death. In so far as other accused are concerned, they can be held guilty for offence u/s 325/34 and 323 IPC only. Jeetmal also in our view, in the facts and circumstances of the case, cannot be held guilty u/s 302 IPC. As mentioned above, it is a case of free fight. Number of person from the side of the accused were also injured. Five persons belonging to the complainant party have since been convicted. It is a case of single injury on the head of Bhagwan Singh which even though caused on vital part but none-the-less, as mentioned above, it is a case of single injury. In our considered view, whereas it would not be permissible to convict Jeetmal u/s 302 IPC he can however, be and has to be convicted u/s 304 Part-I IPC. In view of variety of the circumstances of this case, appeal filed by Jeetmal is partly allowed. The order of conviction and sentence recorded against him u/s 302 IPC is set aside. He is however held guilty u/s 304 Part-I IPC. Interest of justice would be served if he is sentenced to RI for eight years. Ordered accordingly. His conviction under other sections of the IPC as recorded by the Trial Court is maintained. (10). Appeal preferred by Mohan Singh is allowed. Order of his conviction and sentence recorded by the Trial Court u/s 302/34, 325/34 and 323/34 IPC is set aside inasmuch as in our view, he could not be convicted under any of the offence with which he was charged. His participation is absolutely doubtful. As mentioned above, whereas the first informant stated in the FIR that he had caused injury to Bhagwan Singh on the head, this stand was shifted during the course of trial where all witnesses stated that he had given injury to Bhagwan Singh on his elbow and as mentioned above, doctors found no injury on the elbow of Bhagwan Singh. He is thus acquitted of all the charges framed against him. He is thus acquitted of all the charges framed against him. He shall be released forthwith if not required in any other case. (11). In so far as appeal filed by other appellants namely Sahab Singh and Jal Singh is concerned, their conviction and sentence u/s 302/34 IPC is set aside. However, their conviction and sentence u/s 325 and 323/34 IPC is maintained. (12). In the result, Appeal No. 191/2001 is party allowed as indicated above. (13). So far as Revision Petition No. 282/2001 preferred by complainant Parsadi is concerned, the same has no force and is hereby dismissed.