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2005 Supreme(Raj) 1022
High Court Of Rajasthan
Judgename : Shiv Kumar Sharma, Shashi Kant Sharma
Shashi Kant Sharma - Appellant
Versus
State of Rajasthan - Respondent
D.B. Criminal Appeal No. 627 of 1999
Decided On : 04/20/2005
Mr. S.R. Bajwa, Senior Advocate with Mr. V.P. Bishnoi, for the Appellants.
Mr. M.L. Goyal, Public Prosecutor for the State.
Mr. G.C. Chatterjee, for the Complainant in Appeal No. 627 of 1999 and Petitioner in Revision Petition No. 32 of 2000
The main legal point established is that in a mutual fight, constructive liability under Section 149 IPC does not arise, and the accused's plea of self-defence cannot be ignored.
Headnote:
Criminal Law - Conviction under Section 302/IPC - Sections 148, 324/149 and 323/149 IPC - The court analyzed the evidence and found that the accused Sohan Lal was convicted under Section 304 Part-II, IPC instead of Section 302 IPC. The court acquitted him of the charges under Sections 148, 323/149 and 324/149 IPC.
Fact of the Case:
The prosecution case involved a fight between two parties resulting in the death of Ghasi and Kanhaiya, with several others sustaining injuries. The accused Sohan Lal was convicted under Section 302/IPC and other sections, while the other accused were extended the benefit of probation.
Finding of the Court:
The court found that the prosecution failed to establish the charges under Sections 148, 323/149 and 324/149 IPC against the accused. It also found that the accused Sohan Lal exceeded the right of private defence, leading to a conviction under Section 304 Part-II, IPC instead of Section 302 IPC.
Issues: The issues involved the authenticity of the prosecution witnesses' testimony, the injuries sustained by both parties, and the application of the right of private defence.
Ratio Decidendi: The court held that in a mutual fight, there is no common object, and constructive liability under Section 149 IPC does not arise. It also emphasized that the accused's plea of self-defence cannot be ignored, especially in the absence of an explanation for their injuries by the prosecution.
Final Decision: The court partly allowed the appeal of accused Sohan Lal, convicting him under Section 304 Part-II, IPC instead of Section 302 IPC, and acquitted him of the charges under Sections 148, 323/149 and 324/149 IPC.
S.K. Sharma, J.-Both these matters were heard together as the same arise out of a common Judgment rendered by the learned trial Judge.
2. The appellants twenty five in number, were the accused on the file of learned Additional Sessions Judge No. 2, Alwar bearing Sessions Case No. 39/1998. Learned Judge vide Judgment dated September 24, 1999 convicted and sentenced the appellats as under:-
Accused Sohan Lal
Under Section 302/IPC To suffer Imprisonment for life and fine of Rs. 1,000/-, in default to further suffer imprisonment for one year.
Under Section 148 IPC.
To suffer Rigorous Imprisonment for one year and fine of Rs. 500/-, in default to further suffer Imprisonment for three months.
Under Section 323/149 IPC. To suffer Rigorous Imprisonment for six months and fine of Rs. 200/-, in default to further suffer Imprisonment for three months.
Under Section 324/149 IPC.
To suffer Rigorous Imprisonment for six months and fine of Rs. 500/-, in default to further suffer Imprisonment for three months.
Sentences were ordered to run concurrently.
Accused (1) Chandgi Ram, (2) Buddha, (3) Banwari, (4) Deva, (5) Totiya, (6) Surjan, (7) Gugan,
(8) Dariya, (9) Pappu, (10) Shish Ram, (11) Rampat, (12) Ramphal, (13) Sant ram, (14) Srichand,
(15) Surja, (16) Birju, (17) Veeru @ Veer Singh, (18) Thawaria, (19) Dharmapal, (20) Jai Dayal, (21) Rati Ram, (22) Rohitash, (23) Basanta and (24) Risal:
Convicted under Section 148, 324/149 and 323/149 IPC and instead of sentencing them at once the benefit of Section 4 of Probation of Offenders Act was extended and they were directed to execute the bonds of Rs. 5000/-for keeping peace for two years.
3. The prosecution case as pictured during trial was that the informant Raghuvir instituted a report at Police Station Kotkasim on September 15, 1990 at 8.00 P.M. wherein it was alleged that on the said day around 7-8 a.m. Ghasi (since deceased) and Sunder went to the field bearing khasra No. 10 situated at Mauja Khairli, with the purpose of ploughing it with a tractor. When they reached there they found accused sitting there equipped with lathis, ballam, spears and a gun. The accused started demolishing boundary wall on the south of the said field. Ghasi tried to dissuade the accused. On the intervention of Ghasi, accused opened assault. Accused Sohan dealt a blow on the neck of the deceased with the spear. Chandgi fired a gun shot at Ghasi and other appellants also assaulted the deceased, as a result of which Ghasi died at the spot. During the assault on Ghasi, other members of complainant party namely Raghuvir, Jagram, Buddha, Sunder, Dilip, Abhay Singh, Shiv Charan, Subhram, Atar Singh, Matadeen, Ram Singh, Vimla, Dhanak, Sushma, Sajna and Kalawati reached the place of incident. These persons were also assaulted by the accused, as a result of which seventeen persons from the side of complainant suffered injuries. On the basis of the said report a case under Sections 147, 148, 149, 323, 324, 307, 302 and 447 IPC was registered and investigation commenced. After conducting usual investigation the charge-sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge No. 2, Alwar. Charges under Sections 147, 148, 307/149, 323, 324, 325, 447 and 302 IPC were framed against the accused. The charges were denied and trial was claimed. The prosecution in support of its case examined as many as 25 witnesses. In the explanation under Section 313 CrPC the accused claimed innocence and denied the prosecution case. In defence the accused examined two witnesses. On hearing final submissions the learned trial Judge convicted and extended the benefit of probation to 24 accused, but convicted and sentenced the accused Sohan Lal as indicated herein above.
4. Having carefully gone through the record with the assistance of learned Counsel for the parties we notice that in the course of the incident complainant party and accused party both sustained injuries. Two persons Ghasi
