SHIV LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE seventeen appellants before us, alongwith three other co-accused, were tried before the learned Additional Sessions Judge (Fast Track) Alwar in Sessions cases No. 57/2001 (13/000) (14/1999 ). Learned Judge vide judgment dated October 5, 2002 found the appellants guilty and convicted them as under:- 1. Shiv Lal, 2. Amar Singh, 3. Ramjeewan @ Seli @ Ramsahay, 4. Surjan, 5. Girraj, 6. Shri Ram, 7. Jai Narayan, 8. Jagga @ Jagdish, 9. Arjan, 10. Sitya @ Sita, 11. Sohan Lal, 12. Ratan Lal, 13. Krishna Lal, 14. Roop Narayan, 15. Sunder Lal, 16. Kishan and 17. Pappu: U/s. 148 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment. U/s. 323 IPC: Each to suffer rigorous imprisonment for one year. U/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 2000/- , in default to further suffer six months rigorous imprisonment. Roop Narayan, Jagga @ Jagdish, Arjan and Sitya @ Sita: U/s. 324 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment. Shiv Lal, Amar Singh, Ramjeewan @ Seli @ Ramsahay, Surjan, Girraj, Shri Ram, Jai Narayan, Sohan Lal, Ratan Lal, Krishna Lal, Sunder Lal, Kishan and Pappu: U/s. 324/149 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment. Sohan Lal: U/s. 326 IPC: To suffer rigorous imprisonment for seven years and fine of Rs. 1500/-, in default to further suffer three months rigorous imprisonment. Roop Narayan, Jagga @ Jagdish, Arjan and Sitya @ Sita Shiv Lal, Amar Singh, Ramjeewan @ Seli @ Ramsahay, Surjan, Girraj, Shri Ram, Jai Narayan, Ratan Lal, Krishna Lal, Sunder Lal, Kishan and Pappu: U/s. 326/149 IPC: Each to suffer rigorous imprisonment for seven years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment. Girraj: U/s. 325 IPC: To suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment. Roop Narayan, Jagga @ Jagdish, Arjan and Sitya @ Sita Shiv Lal, Amar Singh, Ramjeewan @ Seli @ Ramsahay, Surjan, Sohan Lal, Shri Ram, Jai Narayan, Ratan Lal, Krishna Lal, Sunder Lal, Kishan and Pappu: U/s. 325/149 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs. 500/-, in default to further suffer three months rigorous imprisonment. Shiv Lal and Roop Narayan: U/s. 3/25 Arms Act: Each to suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment. Substantive sentences were directed to run concurrently.

(2.) THE prosecution story is woven like thus: On December 9, 1998 informant Mukhram (PW. 2) submitted a report (Ex. P. 1) at Police Station Sadar Alwar alleging therein that the informant and his family members came to Alwar in a tractor for some work and at around 4. 30 PM while they were returning back they were surrounded by 15-20 persons near village Gangodi, out of them they had identified some persons who were named in the report. Roop Narayan, Shiv Lal, Sunder Lal and Pappu, who were armed with Guns, opened fire that hit his father Har Lal (deceased) as a result of which he fell down, thereafter Ramjeewan, Amar Singh, Surjan, Arjan and Krishan inflicted Pharsi blows on Har Lal, who died on the spot. THEreafter Jagdish gave blow with Pharsi on Sumrata, Sohan made assault with lathi and spear on Mangal, Kishan gave lathi blow on the hand of Radhey while Shri Ram, Jain Narayan and Giriraj made assault on Pappu and informant Mukhram, Ratan and Sitya had also made assault. On that report a case under sections 147, 148, 149, 323, 341, 307 and 302 IPC was registered and investigation commenced. Dead body was subjected to post mortem, statements of witnesses were recorded, the accused was arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. IN course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Alwar. Charges under Sections 302, 302/149, 147, 148, 323, 324, 307, 326/149, 325/149, 324/149 IPC and Section 3/25 Arms Act were framed against the appellants, who denied the charge and claimed trial. THE prosecution in support of its case examined as many as 25 witnesses. In the explanation under Sec. 313 Cr. PC. , the appellants claimed innocence and stated that they were falsely implicated. Shivlal, Sitya @ Sita Ram, Jairam, Leela, Surjan and Musya stated that while they were going back to their village from Alwar they were beaten up by complainant party with lathies and Pharsis, for which Shiv Lal lodged the report against the members of the complainant party. No witness in defence was however examined. Learned trial Judge on hearing final submissions acquitted co-accused Musya, Jai Ram and Leela Ram, but convicted and sentenced the appellants as indicated herein above.

(3.) HAVING scrutinised the FIRs of the instant case and of the cross case, we find that mutual conflict developed and there is no reliable and acceptable evidence as to how it had ensured and at whose instance. The case appears to be of a free fight. The place of the incident was a narrow path on which pebbles were lying. The complainant party and the accused party both were sitting in tractors. Considering all these circumstances, we do not think it possible to say with certainty that the accused party was the aggressor, though undoubtedly the prosecution witnesses sustained quite a large number of injuries. As already noticed in the FIR the informant Mukh Ram stated that Roop Narayan, Shiv Lal, Sunder and Pappu opened fire at Har Lal, but no gun shot injury was found on the body of Har Lal. On the other side in the cross FIR lodged by Shiv Lal it was stated that members of complainant party were aggressors and they gave beating to the members of accused party. The origin and genesis of the occurrence appears to have been withheld by both the parties. Since accused were not the aggressors and it was a free fight each individual was responsible for his own acts as was held in Vishvas Aba Kurane vs. State of Maharastra (AIR 1978 SC 414) that in a free fight no right of private defence is available to either party and each individual is responsible for his own acts. Thus no case either under section 147 or 148 IPC can be said to have been made out against the appellants and the conviction of none of the appellants is sustainable with the aid of Section 149 IPC.