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2005 DIGILAW 3339 (RAJ)

Umar Daraz v. State of Rajasthan

2005-12-21

DALIP SINGH, V.K.BALI

body2005
Honble SINGH, J.–D.B. Criminal Appeal No. 1038/2004 has been filed by Umar Daraz, Abdul Wahid, Ikramuddin, Abdul Kayyum, Nizamuddin and Hafiz who have been convicted vide judgment dated 16.9.2004 passed by the Additional Sessions Judge (Fast Track) No. 2, Baran in Sessions Case No. 154/2003 for various offences as under:- (i) Under Section 302 read with Section 149 IPC : Imprisonment for life with a fine of Rs. 2,000/- and in default of payment of fine to further undergo six months rigorous imprisonment. (ii) Under Sections 147 and 148 IPC : One years rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo one months rigorous imprisonment. (iii) Under Section 323 read with Section 149 IPC : Six months rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo one months rigorous imprisonment. (iv) Under Section 324 read with 149 IPC : Two years rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to further undergo two months rigorous imprisonment. All the sentences were ordered to run concurrently. (2). In S.B. Criminal Appeal No. 1075/2004, filed by Jagdish, Mool Chand, Brijmohan, Chhotulal and Rampratap, all the five accused appellants have been convicted vide judgment dated 29.9.2004 passed by the Additional Sessions Judge (Fast Track) No. 2, Baran in Sessions Case No. 153/2003 for the offences asunder:- (i) Under Section 326 read with Section 149 IPC : Seven year rigorous imprisonment and fine of Rs. 1,000/- and in default of payment to further undergo five months rigorous imprisonment. (ii) Under Section 324 read with Section 149 IPC : Two years rigorous imprisonment and fine of Rs. 500/- and in default of payment of fine to further undergo two moths rigorous imprisonment. (iii) Under Section 148 IPC : Two years rigorous imprisonment and fine of Rs. 500/- and in default of payment of fine to further undergo two months rigorous imprisonment. (iv) Under Section 323 IPC : Six months rigorous imprisonment and fine of Rs. 300/- and in default of payment of fine to further undergo one months rigorous imprisonment. All the sentences were ordered to run concurrently. (3). 500/- and in default of payment of fine to further undergo two months rigorous imprisonment. (iv) Under Section 323 IPC : Six months rigorous imprisonment and fine of Rs. 300/- and in default of payment of fine to further undergo one months rigorous imprisonment. All the sentences were ordered to run concurrently. (3). Bot these appeals, at the request of the learned counsel for the accused appellants in both the criminal appeals, were heard together, as it is the admitted case of the prosecution as well as the accused appellants that even though two separate FIRs have been lodged they relate to the same incident resulting cross cases. (4). D.B. Criminal Appeal No. 1038/2004 arises from judgment in Sessions Case No. 154/03. The FIR No. 50/1990 (Exhibit P. 31) was lodged at Police Station Mothpur, District Baran by PW 2 Ram Kalyan on the basis of a written report (Exhibit P. 3) at 7:30 PM on 10.8.1990 wherein it was stated by him that on the same day at about 2:00 PM accused persons Umar Daraz, Abdul Wahid, Abdul Latif, Abdul Kayyum, Ikramuddin, Nizamuddin, Gaffar, Salamat, Samiullah and about 20 other persons armed with lathi, gandasis and dhariyas came to take possession of the cremation ground and that Jagdish, Dhakad, Dhanraj, Ram Pratap, Ram Gopal and he (Ram Kalyan) asked them not to do so. When these persons were trying to persuade the accused persons the appellants, Umar Daraz and Abdul Wahid said that Jagdish is the main culprit and that he should be killed. At this Abdul Wahid, accused appellant, inflicted a blow at Jagdish with dhariya on his head. Kayyum and Latif assaulted Dhanraj by inflicting blows on his head with gandasis and all the remaining persons inflicted injuries with lathis, dhariyas and gandasis. It was stated by Ram Kalyan that he was assaulted by Kayyum as a result of which he received injuries on the head. After Jagdish and Dhanraj received the injuries, they fell down. When other person of the village came on the spot, the accused party fled away and the villagers took the injured to Atru by bus. Upon the aforesaid report, the police registered a case under Section 147, 148, 149, 323, 324 and 307 IPC. The injured were examined by PW. 5 Dr. N.D. Hirani at Primary Health Center, Atru. When other person of the village came on the spot, the accused party fled away and the villagers took the injured to Atru by bus. Upon the aforesaid report, the police registered a case under Section 147, 148, 149, 323, 324 and 307 IPC. The injured were examined by PW. 5 Dr. N.D. Hirani at Primary Health Center, Atru. The injury reports of Jagdish (the deceased) is Exhibit P. 5, that of Ram Gopal (PW.3) is Exhibit P. 6 and of Dhanraj (PW. 15) is Exhibit P-7. The X-Ray reports of Dhanraj and Exhibit P.8, 9 and 10. The injury report of PW.2 Ram Kalyan is Exhibit P.11. Thereafter, Jagdish died and as a result of which offence under Section 302 was also registered. (5). On the same day i.e. 10.8.1990, the FIR No. 51/1990 was lodged at Police Station Mothpur, District Baran by Umar Daraz, appellant in the appeal No. 1038/2004 at about 9.15 PM stating therein that around 3.30 PM when he came near the bus stand of Badora, a dispute arose regarding dumping of stones on a piece of land near the land of Nizamuddin which is a government land. The stones were being dumped from the trolley of a tractor by Ram Pratap, brother of Jagdish, Dhanraj son of Jagdish and some other labourers. It was stated that lkramuddin asked them not to dump stones, at this Dhanraj chased him away by throwing the stones on him. On hearing the hue and cry raised by lkramuddin, it was stated that he himself (Umar Daraz) and his son Abdul Wahid reached there and tried to pacify him, at this Dhanraj went away to his house and when these persons were going towards the bus stand, then Jagdish, Ram Pratap son of Ram Narayan, Dhanraj son of Jagdish, Ram Kalyan son of Ghansi Lal, Gopilal, Brijmohan Kalal, Kanhaiyalal son of Chhappan Lal Nagar, Jagdish son of Kanhaiyalal Nagar, Gulabchand, Danmal, Chhotulal son of Kanhaiyalal Nagar, Chhitarlal son of Bhagwan Khati, Moolchand (Kumhar), Chhitar Lal son of Shankar Lal Nagar, Gopal son of Chhappan Lal Nagar, Ram Laxman son of Balram Nagar and Ghanshyam son of Balram, all residents of Badora came wielding swords, dhariyas and gandasis. Gopal Lal and Chhapan Lal were having stones in their hands. Gopal Lal and Chhapan Lal were having stones in their hands. It was stated that when Umar Daraz and lkramuddin were going towards their fields they were surrounded by the aforesaid persons and were giving beating. He further stated that he himself caught-hold of the gun which was being carried by Dhanraj and when he caught-hold the gun, Ram Pratap assaulted him with dhariya on his head. It was stated that Jagdish also inflicted head injury to Umar Daraz. Some other accused persons inflicted injuries with stones. It was also stated that Abdul Wahid received injuries on his head and elbow of the right hand. It was then stated that these persons ran away with a view to save themselves to the police out post and Abdul Wahid fled to the camp of R.A.C. (Rajasthan Armed Constabulary). It was also stated that the incident was witnesses by Sammiullah son of Abdul Aziz, Salamat Ali son of Amir Mohammad, Lal Mohammad Sarpanch, Mitthu @ Mehtab Hussain and other residents of Badora. It was then stated that some constables of R.A.C. took them from Badora to the hospital at Khanpur. On this report, F.I.R. No. 51/90 was registered at Police Station Mothpur for the offences under Sections 147, 148, 149 and 323 IPC and investigation started. Thereafter, the injured were sent for medical examination. As Umar Daraz and Abdul Wahid had received injuries by sharp edged weapon, the offence under Section 324 and 326 IPC read with Section 34 were also added. (6). Two cases arising out of Sessions Case No. 154/2003 and 153/2003 were tried by the Additional Sessions Judge (Fast Track) No. 2, Baran, Head quarter at Chhabra and decided by two separate judgments dated 16.9.2004 from which D.B. Criminal Appeal No. 1038/2004 arises and 29.9.2004 from which S.B. Criminal Appeal No. 1075/2004 arises. Learned trial Court in its judgment dated 29.9.2004 in Sessions Case No. 153/2003 has found that in the cases arising out of the FIR Nos. 50/90 (Sessions Case No. 154/2003) and 51/90 (Sessions Case No. 153/2003), the scene of occurrence is one and that both the First Information Reports relate to the same incident. In this regard the finding given by the learned trial court is that incident involved in both the cases is one of a free fight, as a result of which persons from both the sides received injuries. In this regard the finding given by the learned trial court is that incident involved in both the cases is one of a free fight, as a result of which persons from both the sides received injuries. So far as FIR No. 50/90 is concerned, one person namely Jagdish died and a few other namely Ram Kalyan (PW. 2), Ram Gopal (PW. 3) and Dhanraj (PW. 15) received injuries and so far as FIR No. 51/90 is concerned, Umar Daraz, Abdul Wahid and lkramuddin received injuries. (7). Learned counsel appearing in D.B. Criminal Appeal No. 1038/2004 Umar Daraz and others vs. State of Rajasthan has tried to submit that Jagdish and others were the aggressors and the appellants inflicted injuries exercising the right of private defence relating to the property. It was submitted that the accused wanted to prevent Jagdish (the deceased) and others from dumping stones on their land and they were assaulted as a result of which they received injuries. In the instant case, concededly there is no evidence by way of any document to suggest that the land where the stones were being dumped by Jagdish (the deceased) and others belonged to Umar Daraz or any other appellants. At the same time, there is no evidence that the land where the stones were being dumped was in possession of the appellants which possession the appellants sought to protect. On the contrary, the evidence is to the effect that land was government land where Jagdish and Others were wanting to construct a public lavatory. Thus in the instant case,when the land was neither owned nor in the possession of the accused appellant, it cannot be said that any case of right of self defence of property arose in favour of the appellants. The accused have also not in their defence put any suggestion to the prosecution witnesses in this regard. (8). Thus in the instant case,when the land was neither owned nor in the possession of the accused appellant, it cannot be said that any case of right of self defence of property arose in favour of the appellants. The accused have also not in their defence put any suggestion to the prosecution witnesses in this regard. (8). The evidence that has been led in both the cases, as has been rightly held by the learned trial Court suggests that it was a case of a free fight where altercation has taken place on account of the act of Jagdish (the deceased) accompanied by some other persons who wanted to dump stones on the government land for the construction of a public lavatory which was adjacent to the land belonging to lkramuddin and on account of the objection being raised by the accused Umar Daraz and others, the altercation has taken place resulting in a free fight in which persons from both the sides have received injuries. (9). So far as D.B. Criminal Appeal No. 1038/2004 is concerned, the deceased Jagdish, as per the statement of PW.5 Dr. N.D. Heerani, who first examined the deceased and prepared the Injury Report (Exhibit P.5), sustained ten injuries and out of them injuries No. 1, 2 and 7 had been caused by sharp edged weapon and the rest of the injuries had been caused by blunt weapon. He has stated that he had reserved his opinion with regard to injury No. 2 which resulted into cutting of right earlobe could have been grievous if the deformity persisted. The injuries received by the deceased Jagdish were simple in nature. Doctor has not stated that any particular injury was fatal. Similarly, he also examined and prepared the Injury Report of Ram Gopal (PW. 3) which is Exhibit P. 6. All the injuries are simple in nature. He has also examined and prepared the Injury Report of PW.15 Dhanraj, who received seven injuries. All were simple in nature. He also examined and prepared the Injury Report (Exhibit P. 11) of Ram Kalyan (PW. 2) who received three injuries. All were simple in nature. Thus, the injuries which were caused in this free fight to the injured in D.B. Criminal Appeal No. 1038/2004 arising out of FIR No. 50/90 (Sessions Case No. 154/2003) are all simple in nature. (10). He also examined and prepared the Injury Report (Exhibit P. 11) of Ram Kalyan (PW. 2) who received three injuries. All were simple in nature. Thus, the injuries which were caused in this free fight to the injured in D.B. Criminal Appeal No. 1038/2004 arising out of FIR No. 50/90 (Sessions Case No. 154/2003) are all simple in nature. (10). The question, therefore, arises as to which injury has been caused by which particular accused person. As per the statements of PW.1 Jagdish son of Kanhaiya Lal, PW.2 Ram Kalyan, PW.3 Ram Gopal and PW. 15 Dhanraj, Abdul Wahid, the appellant, inflicted a blow on the head of the deceased Jagdish with a dhariya whereas, as per PW. 7 Brijmohan, Abdul Wahid inflicted a blow with a stick on the head of the deceased Jagdish. PW. 2 Ram Kalyan, PW. 3 Ram Gopal and PW. 15 Dhanraj have also stated that Umar Daraz inflicted a dhariya blow on the head of deceased Jagdish, whereas PW.1 Jagdish s/o Kanhaiya Lal has stated that Umar Daraz caused injuries by dhariya to the person of deceased Jagdish. So far as the accused appellant lkramuddin is concerned, PW. 3 Ram Gopal and PW. 7 Brijmohan have stated that lkramuddin caused blows with a lathi (stick) to the deceased Jagdish, whereas, PW. 15 Dhanraj has stated that lkramuddin caused injuries on the right side of the ear by a dhariya. So far as accused appellant Abdul Kayyum is concerned, only PW. 3 Ram Gopal has stated that he caused lathi blows on the hands of the deceased Jagdish. So far as accused appellant Nizamuddin is concerned, PW. 15 Dhanraj has stated that Nizamuddin caused dhariya blows on the right ear of the deceased Jagdish. So far as accused appellant Hafiz is concerned, PW. 13 Ram Charan has stated that Hafiz inflicted lathi blows on the waist and head of the deceased Jagdish. In the instant case, PW. 5 Dr. N.D. Heerani who first examined Jagdish (the deceased) before his death and PW. 17 Dr. Shiv Ratan Kochar who conducted post mortem, have not stated specifically as to which of the injuries were fatal. On the contrary, it was the cumulative effect of the injuries on the head which caused the death. In the instant case all the injuries were of simple in nature. The other injured PW. 17 Dr. Shiv Ratan Kochar who conducted post mortem, have not stated specifically as to which of the injuries were fatal. On the contrary, it was the cumulative effect of the injuries on the head which caused the death. In the instant case all the injuries were of simple in nature. The other injured PW. 2 Ram Kalyan received simple injuries which are three in number. PW. 15 Dhanraj received seven injuries which are all simple in nature. PW. 3 Ram Gopal, the other injured, received two injuries which are also of simple in nature. Thus, the factual position which emerges from the prosecution case is that it was a case of free fight. The accused appellant Abdul Wahid was armed with a sharp edged weapon (dhariya), Umar Daraz was also armed with a sharp edged weapon (dhariya), lkaramuddin was armed with a blunt weapon (lathi stick), Abdul Kayyum was armed with a lathi, Nizamuddin was armed with a sharp edged weapon (dhariya) and Hafiz was armed with a blunt weapon (lathi/stick). All the accused appellants inflicted injuries which were all simple in nature to the deceased and to the injured PW. 2 Ram Kalyan, PW. 3 Ram Gopal and PW. 15 Dhanraj. (11). In that view of the matter and also the fact that it has come in the evidence that accused appellants Umar Daraz, Abdul Wahid and lkramuddin also sustained injuries, it has rightly been held to be a case of a free fight. So far as free fight is concerned, the assailants are only liable for their individual acts and Section 149 IPC and applicability of common object of all the accused would be ruled out. (12). In the case Amrik Singh and Others vs. State of Punjab reported in 1994 Supp (1) SCC 320 it has been held by the Honble Supreme Court in para 5 as under:- ``The High Court, further held that this is a case of free fight. In coming to such a conclusion, the High Court has taken into consideration the fact that the accused as well as the deceased and PWs appeared at the place of occurrence armed with weapons and the quarrel took place immediately. This is a question of fact which does not warrant any interference. In coming to such a conclusion, the High Court has taken into consideration the fact that the accused as well as the deceased and PWs appeared at the place of occurrence armed with weapons and the quarrel took place immediately. This is a question of fact which does not warrant any interference. The question as to who commenced it first may not be much relevant and it has also been held in a number of cases that the participations should be liable for their individual acts. In this view of the matter, we have to examine the plea of each of the accused. We may, however, mention that in a case of free fight, the question of unlawful assembly is not ruled out. But in arriving at the common object of the unlawful assembly in a free fight it cannot be held with certainly that if one of the individuals inflicts a serious injury then it would be a common object of all members of the unlawful assembly. Mere formation of an assembly with a view to fight will be unlawful assembly but in the instant case having regard to the convictions that have been awarded we do not want to express any opinion whether there was an unlawful assembly as such. We also do not have any material as to what happened to the case which was filed by the accused by way of complaint. In this view of the matter, we would examine only the individual acts in respect of which convictions are recorded. As has been held above, in the instant case, the deceased Jagdish as well as the other injured persons as is evident from the Injury Reports received only simple injuries. The accused appellants Abdul Wahid, Umar Daraz and Nizamuddin were armed with sharp edged weapon and as such would be liable for the offence under Section 324 IPC whereas the accused appellant lkramuddin, Abdul Kayyum and Hafiz, as per the prosecution case, were armed only with blunt objects and caused simple injuries, as such, for their individual acts they are liable to be convicted for offence under Section 323 IPC. We reiterate that all injuries found on the person of Jagdish were simple in nature and the Doctor gave no opinion that any specific injury was sufficient to cause death in the ordinary course of nature. (13). We reiterate that all injuries found on the person of Jagdish were simple in nature and the Doctor gave no opinion that any specific injury was sufficient to cause death in the ordinary course of nature. (13). Consequently, D.B. Criminal Appeal No. 1038/2004 is partly allowed. The accused appellants are acquitted from the offences under Sections 302, 147, 148, 149, 223/149 and 324/149 IPC, as convicted by the learned trial court. Instead the accused appellant Abdul Wahid, Umar Daraz and Nizamuddin are convicted for the offence under Section 324 IPC and sentenced to one years rigorous imprisonment and a fine of Rs. 1,000/- each and in default of payment of fine to further undergo two months simple imprisonment. Whereas, the accused appellant lkramuddin, Abdul Kayyum and Hafiz are convicted for the offence under Section 323 IPC and sentenced to six months rigorous imprisonment and a fine of Rs. 1,000/- each and in default of payment of fine to further undergo two months simple imprisonment. (14). So far as S.B. Criminal Appeal No. 1975/2004 is concerned, on the basis of the bindings given above that the incident is one and that it is a case of a free fight in which both the sides have received injuries the individual acts of the appellants have to be examined from the prosecution case. PW. 11 Dr. R.C. Dubey has stated that he examined the injury Umar Daraz Khan and he had received ten injuries out of which injuries No. 1 and 2 had been caused by sharp edged weapon and the rest of the injuries had been caused by blunt object. Injury No. 1 was found to be grievous in nature on the basis of the X-Ray report. PW.11 Dr. R.C. Dubey has further stated that he also examined the injuries of lkramuddin who had two injuries and both of them were simple in nature caused by blunt weapon. PW. 11 Dr. R.C. Dubey has further stated that he examined the injuries of Abdul Wahid who had received seven injuries out of which injury No.2 on the right elbow was grievous in nature caused by blunt weapon. (15). Learned counsel has submitted that there is no precise evidence as to who caused the grievous injury as there are more than one injuries on the head and the head injuries have been attributed to Ram Pratap as well as Jagdish. (15). Learned counsel has submitted that there is no precise evidence as to who caused the grievous injury as there are more than one injuries on the head and the head injuries have been attributed to Ram Pratap as well as Jagdish. However, both the accused persons are said to be armed with dhariya which is a sharp edged weapon and the injuries on the head are caused by sharp edged weapon, as is evident from the Injury Report Exhibit (P.15). The injuries caused to Abdul Wahid were all simple except injury No. 2 which has been caused by blunt weapon. Injury No. 2 has not been attributed to any of the accused appellants. So far as lkramuddin is concerned, he received two simple injuries which are recorded in Exhibit P-17 as swelling on the mid of the right arm and middle finger of the right palm. Both are simple in nature and caused by blunt weapon. The statement of injured lkramuddin is that he received an injury with stone which he does not know as to who caused it. In that view of the matter, the sum and substance of the matter in this case is that so far as the injuries received by sharp edged weapon by Umar Daraz and Abdul Wahid are concerned, the accused appellants Ram Pratap and Jagdish who were armed with sharp edged weapons are liable to be convicted for the offence under Section 324 IPC. Remaining accused appellants who were armed with blunt weapons are convicted for the offence under Section 323 IPC for the injuries caused to Umar Daraz, Abdul Wahid and lkramuddin. The judgment of conviction against all the accused appellants for the offence under Sections 148, 326/149, 324/149 and 323 IPC are set aside. The accused appellants Ram Pratap and Jagdish are convicted for the offence under Section 324 IPC and sentenced to one years rigorous imprisonment and a fine of Rs. 1,000/- each and in default of payment of fine to further undergo simple imprisonment for two months. The accused appellants Mool Chand, Brijmohan and Chhotulal are convicted of the offence under Section 323 IPC and sentenced to six months rigorous imprisonment and a fine of Rs. 1,000/- each and in default of payment of fine to further undergo simple imprisonment for one month. (16). Consequently, both the appeals are partly allowed, as indicated.