Judicial Analysis Court Copy Headnote Facts Arguments Court observation

RAJASTHAN HIGH COURT
Sandeep Mehta and Rameshwar Vyas, JJ.
Jagdish and Ors. – Appellants
versus
State of Rajasthan Through P.P. – Respondent
D.B. Criminal Appeal No.1005 of 2017
Connected with
D.B. Criminal Appeal No.806 of 2017,
D.B. Criminal Appeal No.876 of 2017,
D.B. Criminal Appeal No.939 of 2017
Decided on 27.8.2021

Counsel for the Parties:
For the Appellants:Mr. Ashvin Garg, Mr. Abdul Kalam Khan, Mr. Mukesh Chouhan, Mr. Narendra Prasad Meena, Mr. Surendra Sharma (through V.C.), Mr. Vijay Choudhary, Advocates
For the Respondent:Ms. Rekha Madnani, PP, Mr. Suresh Sahni, Mr. R.M. Sharma, Advocates

IMPORTANT POINT
Once it is concluded that case is of free fight, concept of vicarious liability under Section 149, IPC cannot be applied to such a case.

Headnote:
Indian Penal Code, 1860 – Sections 302/149, 323/149 and 148 – Murder and hurt – Common object – Conviction and sentence – Claim of complainant party that they submitted their tenders in village and that assault was unilaterally launched by accused persons without any provocation is highly doubtful – Case has all elements of a free fight between parties – Once it is concluded that case is of free fight, concept of vicarious liability under Section 149, IPC cannot be applied to such a case – As fight was provoked by complainant party, assembly of accused persons who are local residents (as opposed to complainant side) cannot be held to be an unlawful assembly within meaning of Section 141 IPC – There is a grave discrepancy in testimony of three material prosecution eye witnesses regarding specific role attributed to accused – Material prosecutions witnesses have tried to hide genesis of occurrence – Evidence of material witnesses regarding specific role of remaining accused persons in causing injuries either to deceased or to injured, is neither convincing nor reliable – As incident involves a free fight between parties, trial court was absolutely unjustified in invoking Sections 148 and 149 IPC for convicting accused appellants – Only permissible view would be to hold each accused responsible for his individual act – As incident took place at spur of moment after violence acts committed by members of complainant party, accused cannot be clothed with either knowledge or intention to commit murder of deceased – Conviction and sentence modified. (Paras 11, 15, 18, 19 and 20)
Result: Appeals Partly allowed.

JUDGMENT

By the Court:

Sandeep Mehta, J.—These four appeals have been preferred against the judgment dated 20.04.2017 passed by Additional Sessions Judge (Women Atrocities Cases) No.2, Kota and thus the same are being heard and decided together by this common judgment. The appellants herein above have been convicted and sentenced as below by the learned trial Court. Being aggrieved by the conviction and sentenced awarded to them, the appellants have preferred these appeals under Section 374 Cr.P.C.

(I) Appeal No.1005/2017:

Accused appellants Jagdish, Dayaram and Shambhu Dayal convicted for the offences punishable under:-

(i) Sec.148 IPC: Sentenced to undergo simple imprisonment for two years.

(ii) Sec.323/149 IPC: Sentenced to simple imprisonment for one year.

(iii) Sec.302/149 IPC: Sentenced to imprisonment for life and to pay fine of Rs.50,000, in default of payment of fine to further undergo simple imprisonment for two months.

(II) Appeal No. 806/2017:

Accused appellant Mahaveer convicted for the offences punishable under:-

(i) Sec.148 IPC: Sentenced to undergo simple imprisonment for two years.

(ii) Sec.323/149 IPC: Sentenced to simple imprisonment for one year.

(iii) Sec.302/149 IPC: Sentenced to imprisonment for life and to pay fine of Rs.50,000/-, in default of payment of fine to further undergo simple imprisonment for two months.

(III) Appeal No. 876/2017:

Accused appellants Ashok & Girraj convicted for the offences punishable under:-

(i) Sec.148 IPC : Sentenced to undergo simple imprisonment for two years.

(ii) Sec.323/149 IPC: Sentenced to simple imprisonment for one year.

(iii) Sec.302/149 IPC: Sentenced to imprisonment for life and to pay fine of Rs.50,000/-, in default of payment of fine to further undergo simple imprisonment for two months.

(IV) Appeal No. 939/2017:

Accused appellant Pappu @ Mahendra convicted for offences punishable under:-

(i) Sec.148 IPC : Sentenced to undergo simple imprisonment for two years.

(ii) Sec.323/149 IPC: Sentenced to simple imprisonment for one year.

(iii) Sec.302/149 IPC: Sentenced to imprisonment for life and to pay fine of Rs.50,000/-, in default of payment of fine to further undergo simple imprisonment for two months.

2. Succinctly stated the facts relevant and essential for decision of these appeals are noted herein below. A Parcha Bayan (Ex.P9) of injured Mahesh Gurjar (PW8) was recorded by ASI of Police Station, Kethaun (Kota) at M.B.S. Hospital, Kota wherein, the injured alleged that on the same day, he alongwith his brother Mangi Lal (deceased), maternal uncle Hiralal (PW6) and Mahaveer (PW18) had gone from Rangbadi, Kota in a jeep to the Gram Panchayat Baniyani for submitting tenders. They reached Baniyani at 12:30 p.m. and submitted their tenders. The time for accepting the tenders was up to 1:00 p.m. At about 2:30 p.m. they were informed that the Sarpanch and Up-Sarpanch were not available and thus, the tenders would not be opened on the same day and the next date would be informed later on. After this information, the informant and his companions were moving out from Gram Panchayat when the accused Jagdish, Daya Ram, Ramesh, Devlal, Ashok, Girraj, Harji and Pappu Gurjar came there and started hurling abuses towards them and also launched an attack. Jagdish was armed with farsa like an axe, Dayaram was having a gandasi and the other accused were holding iron rods and pipes. It was further alleged that Jagdish and Dayaram inflicted blows with their respective weapons i.e. axe and gandasi on the head of Mangi Lal who fell down. Thereafter, the remaining accused gave a beating to the victim by iron rods and pipes. The informant tried to intervene, on which he too was beaten all over the body. Hiralal also tried to intervene but he also met the same fate. While the incident was going on, Smt. Bhuri Bai, mother of Jagdish and Sugna Bai W/o Shambhu came there and they also participated in the assault. It was alleged that the accused persons had launched

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IMPORTANT POINTOnce it is concluded that case is of free fight, concept of vicarious liability under Section 149, IPC cannot be applied to such a case.

IMPORTANT POINT
Once it is concluded that case is of free fight, concept of vicarious liability under Section 149, IPC cannot be applied to such a case.