PADMARAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) APPELLANT Padmaram has preferred this appeal against the judgment dated March 18, 1975 by the learned Additional Sessions Judge No. 1, Jodhpur convicting him under Sections 325 and 323 IPG respectively.

(2.) BRIEFLY stated the facts according to the prosecution were these. On 20 -10 - 1967 at about 8 a.m. Kishanpuri was going to his field through the field of Padmaram. Appellant Padmaram and the other co -accused were threshing their 'bajra' crop rear the 'pagdandi' on which Kishanpuri was proceeding to his field All the accused persons seven in number armed with lathis, all of a sudden encircled Kishanpuri and give him a severe beting. Padmaram inflected a la(sic)hi blow on the left leg of Kishanpuri resulting in a fracture. The lady accused were having 'dantalis' in their hards. Kishanpuri raised an alarm which attracted Bania, Anchi and Sunder at the scene of the incident. They were also given a beating Padmaram also caused some injuries to the eyes of Kishanpuri. After the incident, first information report was lodged by Mst. Sunder wife of Kishanpuri at Police Station, Mahamandir at 11.30. a.m. The usual investigation including the med cal examination of the injured was made. After completing the investigation the police put up a challan in the court of the Munsif Magistrate, Jodhpur who committed the accused persons to the court of Sessions The appellant and other co -accused pleaded not guilty. Their defence appears to be that a well known as 'khariberia' is owned and possessed by Padmaram According to Padmaram. the complainant party wanted to demolish his well When he resisted, the complainant party attacked his party and caused various injuries Kishanpuri inflicted a lathi blow which resulted in the fracture of his hand. The learned Additional Sessions Judge believed the prosecution case partially and convicted Padmaram for the offence under Sections 325 and 393 IPC. However, the other cc -accused viz, Mst Chhoti, Dakuri, Seemli and Kamli were acquitted of all the charges levelled against them. The learned Additional Sessions Judge was also of the view that it was not a case where Kishanpuri was attacked suddenly by the accused party. According to him it was a case of free fight and in arriving at this conclusion he thus observed: It seems that the two parties met without any intention to quarrel, but all of a sudden a fight ensued in which both sides used force. It cannot be said to be a case of rioting in the absence of any evidence to prove previous concert. It cannot be, inferred from the mere fact of joint action, for, such action might have been spontaneous and not necessarily the result of a previous design Of course, surh preconcert and design may be as much the result of mutual understanding as of a previous deliberation, but in such a case there must be facts from which such an inference may be drawn. Mere use of force by a number of persons assembled does not render them liable for rioting. This implies some degree of previous concert & deliberation which is not found in the instant case. It is significant to that Mst. Sundri (PW 4) who is aneye witness of the occunence and was also injured has lodged the FIR. She mentioned nothing what so ever about the exhortation by Padmaram in that first information report. However, when examined in Court, she stated that Padmaram had exhorted his companions twice. That fact is missing in the FIR which is a fairelv detailed one Hence, in my opinion, the alleged exhortation by Padmaram is not established

(3.) IT was argued by the learned Counsel for the appellant that the learned Sessions Judge was in error in negativing the defence story and in arriving at a finding of free fight. This was not even the prosecution case. There is no evidence to prove or indicate that it was a case of free fight Is was neither the case of the prosecution nor that of the defence. I have considered the argument carefully and in my opinion the learned Additional Sessions Judge was badly in error in arriving at a finding of free fight. There is no evidence worth the name to indicate that the parties had assembled with a pre -determined intention to have a fight It was thus observed in the case of Gajanand and Ors. v. State of U.P : AIR1954SC695 : A free fight is 'when 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 on the tactics adopted by the rival commanders. Before proceeding further in the case at this stage I may notice the injuries received by both the sides: Kishanpuri 1. Bruise red transverse 6 cm x 1 cm on left buttock over hip joint 2. Bruise red 14 cm x 2cm placed obliquely on posterior aspect of left thigh upper I/3rd portion. 3. Bruise red 12 cm x 13/4 cm on outer aspect of middle 1/3rd portion at left thigh placed obliquely. 4. Bruise red 16 cm u 18/4 cm on outer aspect of left thigh middle l/3rd portion placed obliquenly 4 cm in front of injury No. 3.