1986 Supreme(Raj) 367
RAJASTHAN HIGH COURT
Jas Raj Chopra, J.
Inder Singh and Ors. - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Appeal No. 54 of 1978.
Decided On : 30-01-1986
Advocates:
For the Appellant:R.N. Bishnoi, Advocate.
For the Respondent: Bastichand, Public Prosecutor.
In a case of free fight, provisions of Section 149, IPC cannot be made applicable and the assembly cannot be characterised as unlawful assembly.
Headnote:
CRIMINAL APPEAL - FREE FIGHT - UNLAWFUL ASSEMBLY - SECTION 149 IPC - INDIVIDUAL RESPONSIBILITY - SENTENCE.
Fact of the Case:
The accused persons went to the house of the complainant to bring back the complainant's wife, who was living with her parents. The complainant refused to send her, and a fight ensued. The accused persons were armed with gandasis and lathies, and they inflicted injuries on the complainant and his family members. The complainant's wife was forcibly taken away by the accused persons.
Finding of the Court:
The court held that the initial object of the assembly was to persuade the complainant to send back his wife with her husband. The initial object of the assembly was not at all illegal. The accused party even earlier tried to bring back the wife and held three-four Panchayat to achieve that object. Even on that day the Panchayat was taken with the sole object of persuading the complainant to send back his wife with them. It appears that when the complainant demanded money for the sending back his wife hot words were exchanged because his motives were questionable and it appears that in that process both parties, who probably had arms with them started fighting with each other and so definitely it is a case of free fight from the very start. It is a settled law that in a case of free fight provisions of Section 149, IPC cannot be made applicable and the assembly cannot be characterised as unlawful assembly. So no accused can be held guilty Under Section s 147 or 148, IPC and no body can be held guilty of any substantive offence by taking recourse to Section 149, IPC.
Issues: 1. Whether the assembly was unlawful? 2. Whether the accused persons were guilty of the offences charged?
Ratio Decidendi: 1. The court held that the assembly was not unlawful, as the initial object of the assembly was to persuade the complainant to send back his wife with her husband. The initial object of the assembly was not at all illegal. 2. The court held that the accused persons were guilty of the offences charged, as they had inflicted injuries on the complainant and his family members.
Final Decision: The appeal filed by accused-appellants Bhagsingh is accepted, his conviction and sentence Under Section s 47 and 326, 324 and 323 read with Section 149 IPC are set aside and he is acquitted of the above said offence by giving him the benefit of doubt. The appeal filed by other six accused-persons, that is, Indersingh, Malkiyatsingh, Kirpalsingh, Veersingh, Jogendrasingh, and Banta Singh partially succeeds. The conviction of accused appellants Indersingh, Kirpalsingh, Malkiyatsingh and Jogendrasingh Under Section s 148, and 326, 324, 323 read with Section 149 IPC and conviction of accused-appellants Veersingh and Bantasingh Under Section s 147 and 326, 324, 323/149 IPC is set aside. Accused Indersingh, Kirpalsingh, Malkiyatsingh and Jogendrasingh are held guilty of the offence Under Section 325 IPC and they are sentenced to the period of their custody along with a fine of Rs. 700/-and in default to undergo three months' rigorous imprisonment each. Accused appellants Veersingh and Bantasingh are held guilty for the offence Under Section 323 IPC and they are sentenced to the period of their custody along with a fine of Rs. 400/- each and in default to undergo two months rigorous imprisonment each.
JUDGMENT
1. - This appeal is directed against the judgment of learned Sessions Judge No. 1, Hanumangarh dated January 16,1978 whereby the learned lower court has held accused Veersingh, Bhagsingh and Bantasingh guilty of the offence Under Section s 147, and 326, 323 read with Section 149 IPC. He has further held accused Indersingh Malkayat Singh, Jogendrasingh and Kartarsingh guilty of the offence Under Section s 148, and 326, 324, 323 read with Section 149 IPC and has senenced all the seven accused persons to rigorous imprisonment for three years together with a find of Rs. 200/- for offences Under Section s 326, 324, 323 read with Section 149 IPC and in default to undergo two months' rigorous imprisonment. For the offence Under Section 148 as also the offence Under Section 147 IPC the above said 7 accused persons have been sentenced to one year's rigorous imprisonment each. All the substantive sentences have been ordered to run concurrently. The joint sentence has been recorded for all the three offences i.e. Sections 326, 324 and 323 IPC read with Section 149 IPC. All the accused appellants have been acquitted of the offence Under Section 436 IPC.
2. The facts of this case, briefly, stated are that Mst. Sito was a married wife of accused Kirpalsingh accused. She is the daughter of PW 2 Kartarsingh. It is alleged that Kirpalsingh and his mother were harassing Mst. Situ and, therefore, her father went to bring Mst. Situ. Her in-laws refused to send her with him. He, therefore, obtained a warrant Under Section 100 Cr. PC and by adopting that process he secured the custody of Mst. Sito. After that Mst. Sito started living with her parents. It is alleged that Kripalsingh and her father Indersingh four to five days attempted to take back Mst. Sito by arrnging a Panchayat but Kartarsingh refused to send Mst. Sito with Kirpalsingh and his father Indersingh.
3. The case of the prosecution further is that on the date of occurrence i.e. on September 19, 1972 at about 10 or 11 a.m. in the morning all these seven accused persons came to the house of Kartarsingh. Indersingh Kirpalsingh, Malkiyatsingh and Jogendrasingh were armed with Gandasa whereas the other three accused persons i.e. Veersingh, Bantasingh and Bantasingh alias Bhagsingh were armed with lathies. As soon as they arrived at the residence of Kartarsingh they asked Kartarsingh and his sons to send Mst. Sito. Kartarsingh, however, refused to send her, and requested them not to use force for achieving this end. It is alleged that they all came in a jeep and the jeep was left at some distance. As soon as Kartarsingh refused to send Mst. Sito, accused Kirpalsingh and Indersingh struck a blow with 'gandasi' on the hand of Kartarsingh. He was followed by Malkiyat. singh. Jogendra Singh then tried to inflict a blow with a 'gandasi' on the head of Kartarsingh but the blow hit him on his leg. Mst. Sarjeetkaur (PW 6) wife of PW 1 Kirpalsingh tried to save her father-in-law whereupon accused Kirpalsingh inflicted a blow with 'gandasi' on her head. One Harphul Singh came to their rescue, he too was hit on his head by Kirpalsingh with a 'gandasi'. At that point of time all the three other accused persons i.e. Veersingh. Bantasingh and Bhagsingh started beating these three injured persons with lathies. Kartarsingh's son Jagroop Singh also tried to intervene but he too was beaten by the accused persons. After inflicting injuries to all these four persons i.e. Kartarsingh, Harphulsingh, Surjeet Kaur and Jagroopsingh accused Harphulsingh and Malkiyatsingh caught hold of the arms of Mst. Sito who was sitting outside the hut of Jagroopsingh. They dragged her to the jeep and then forcibly put her in the jeep and took her away. Then as accused persons left all these four injured persons immediately went to Sangaria and there Harphulsingh PW 1 lodged an oral report at P.S. Sangariya which had been marked as Ex. P 1. The SHO got their injuries examined and the injury reports of Jagroopsingh, Kartars
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