In cases of free fight, liability is individual, and Section 149 cannot be invoked for constructive liability, as established by the Supreme Court.

ORDER :

(ILESH J. VORA, J.)

1. Rule. Learned APP waives service of Rule on behalf of respondent State. By consent, Rule is fixed forthwith.

2. By way of this application under Section 430(1) of BNSS, 2023, the applicant Bharatbhai Tapubhai Vala, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 120B, 143, 147, 148, 325, 326, 302, 149, 34 of the Indian Penal Code.

3. The present appeal and the application for suspension of sentence arise from the judgment dated 28.08.2023 and order of sentence passed in Sessions Case No. 70 of 2010, whereby, the applicant herein was convicted and sentenced as under:

4. Facts and circumstances giving rise to file appeal as well as this application are that on 22.05.2010, the applicant along with 7 accused formed an unlawful assembly with a common object to kill one Jayraj @ Ghogha Pithabhai and in order to execute the common object, they assembled with deadly weapon like sward, fire arm, wooden bat and arrow. They assaulted the deceased and witnesses namely Rajubhai Pithabhai complainant and Pithabhai Wala. On account of said assault, deceased Jayraj Pithabhai sustained several injuries on his body and died, whereas, two witnesses as referred above, suffered injuries as per the medical records. The complaint was being registered at the instance of injured Raju Pithabhai. Pursuant to said complaint, the investigation commenced and at the end of investigation, initially 6 persons were chargesheeted and later on, on the basis of supplementary chargesheet two remaining accused were also chargesheeted. The cases were committed to the court of sessions. The accused were tried by the Sessions Court, Amreli. The accused Dillubhai Tapubhai and Dadabhai Tapubhai passed away during the course of trial and case against them stand abated. In order to prove the charges, the prosecution examined 50 witnesses and exhibited 83 documents. At the end of trial, the learned Sessions Judge, relying on the testimony of the eye witnesses and medical evidence in support of said evidence, came to the conclusion that the accused were the members of unlawful assembly and with the common object to kill the deceased, they assembled at the place of occurrence with deadly weapons and assaulted the deceased, whereby, they committed the offence of murder.

5. Learned advocate Mr. Ashish Dagli, appearing on behalf of the applicant while praying for suspension of sentence contended that, the judgment of conviction and order of sentence are not sustainable in law, as the court below despite of the facts that accused had been assaulted by the complainant party and in a cross case, the complainant party held guilty for causing voluntary injuries to the accused and in that view of the matter, the court below came to the conclusion that, there was a free fight between two groups. In such circumstances, Mr. Dagli would urge that, when there is a free fight, then the persons who are proved to cause injuries can be held guilty for the injuries caused by them. Thus, the conviction and the sentence with the aid of Section 149, is not sustainable in law.

6. In view of the aforementioned submissions, learned counsel Mr. Dagli would urge that applicant Bharatbhai, according to case of the prosecution, was in the company of the co-accused and was having firearm in his hand. The Court below acquitted the accused Bharatbhai of the charges under the Arms Act, as the firearm was not used and no one sustained injuries by the weapon. In such circumstances, the court below could not have convicted the accused Bharatbhai f