M.L. Joshi, J.
1. This is an appeal by 11 convicted persons against the order of their conviction passed by the Sessions Judge, Bharatpur, on 23 6.70 in criminal original case No. 13 of 1969.
2. In order to appreciate the controversy in this case, it will be useful to give the chart of various courts of charges against each of the accused:
1. Ramkishan : Under Sections 324, 148, 302-326-323 read withSection 149 I.P.C.2. Ramkhilari : Under Sections 323, 148, 302, 324-326 read withSection 149 I.P.C.3. Laturia : Under Sections 323, 148, 302, 324-326 read withSection 149 I.P.C.4. Harisingh : Under Sections 323, 148, 302, 324-326 read withSection 149 I.P.C.5. Mangilal : Under Sections 323, 148, 302, 324-326 read withSection 149 I.P.C.6. Bora : Under Sections 323, 148, 302, 324-326 read withSection 149 I.P.C.7. Surajmal : Under Sections 323, 148, 302, 324-326 read withSection 149 I.P.C.8. Dhanpal : Under Sections 324, 148 and 302 323-326 read withSection 149 I.P.C.9. Chhitaria : Under Sections 323, 148, 302, 324-326 read withSection 149 I.P.C.10. Rambabu : Under Sections 447, 323, 148 and 302, 324-326 readwith Section 149 I.P.C.11. Ramswarup : Under Sections 302. 148 and 323 324-326 read withSection 149 I.P.C.
3. The charge under Section 148 against the appellants was that each of them was a member of the unlawful assembly on 16-7-68 the common object of which was to commit murder of Bhavi Chand and to cause injuries to the alleged interveners-rescuers (hereinafter referred to as the complainant-party) Charges under Sections 302, 323 324-326 read with Section 149 I.P.C. related to the constructive liability of the members of the unlawful assembly for the culpable acts done by the members of such assembly in prosecution of their common object.
4. The Sessions Judge, Bharatpur, convicted the accused appellants under Sections 323-324, 325-326 read with Section 149 I.P.C. The appellants were also convicted under Section 148 I.P.C. Ramswarup appellant was further convicted specifically under Section 302, Indian Penal Code. In other words he was convicted under Section 302 I.P.C. simpliciter also Each of the appellants was sentenced to three years' rigorous imprisonment under Section 326 read with Section 149, to 18 months' rigorous imprisonment, under Section 325 read with Section 149, to six months' rigorous imprisonment, under Section 323 read with Section 149 and to three months' rigorous imprisonment, under Section 148 of the Indian Penal Code. Appellant Ramswarup was further convicted to rigorous imprisonment for life under Section 302 I.P.C.
5. The prosecution case as disclosed during the trial was that Ramswarup and Rambabu accused dug a ditch in the field of Ramdhan and extracted earth therefrom for raising 'Doli' (small earthen wall) around their field. Ramdhan felt seriously aggrieved on account of this as the ditch caused obstruction in taking bullocks into his field. He, therefore, took serious objection to this act of Ramswarup and remonstrated with him to fill up the ditch by levelling it. This, according to the prosecution infuriated Rambabu who along with Ramswarup went to the field of Ramdhan and inflicted a lathi blow on his head. Ramdhan is then said to have run away towards the village in order to save himself. It is said that both Ramswarup and Rambabu chased Ramdhan and caught hold of him by his hands in Johri Jat's field. It may be stated here that according to the site plan Ex. 15, Johri Jat's field is just contiguous to Ramdhan's field on its northern side. After catching hold of Ramdhan, Ramswarup and Rambabu are said to have dragged him to the Dagra (village-pathway). The other appellants who are alleged to have assembled in the hut of Ramswarup came running at the Med of Johari Jat's field and belaboured Ramdhan with Lathis and caused severe blows. Ramdhan thereupon raised a cry. Hearing his cries, Bhavi Chand (since deceased), Nihal Singh, Hati Ram and Bhagwan Singh rushed to the spot. It is said that accused Ramswarup was aimed with a Farsi, Rambabu was armed with a lathi, Ramkishan had a Ballam, Dhanpal had a Sela, Santoria was armed with a Farsi and the remaining accused persons had lathies in their hands. The prosecution story further goes on to say that all the appellants shouted that Bhavi Chand had come as a 'Himayati' and so be should be finished off. As a result of this command. Ramswarup dealt a 'Farsi' blow on the head of Bhavi Chand on account of which Bhavi Chand fell down on the ground. The remaining appellants caused various injuries to Ramdhan as well as to the rescuers (members of the complainant-party). Bhavi Chand's condition became very serious on account of the head injuries and so he was taken to Bayana Hospital in a semi-conscious state where he died on that very day in the night.
6. Ramdhan lodged a first information report with the Station House Officer, Bayana, who in the first instance registered a case under Sections 307, 147, 148, 149 and 447 I.P.C. Subsequently on account of the death of Bhavi Chand. the Station House Officer added the offence under Section 302 I.P.C. also. The injured persons were sent to the doctor for examination of the injuries on their person. The doctor after examination of the injured persons recorded their injuries and prepared the injury reports. The injury reports of Ramdhan, Hariram, Nihal singh and Bhagwan Singh are Exs. P-l, P-2, P-3 and P-4 respectively. Bhagwan Singh's X-ray report is Ex. P 6, Ex. P-7, is the injury report of Bhavi Chand deceased and his post mortem report is Ex. P-8. Ramdhan had five contusions and one cut on the scalp 1' x 1/2' with bleeding edges. Hariram had two contusions, a cut on the helix of the right ear across in line of the pinna and diffused swelling on the left palm, on the hypothenam eminence fracture of metacarpal corresponding to the little finger. Nihal singh had one cut injury on the left hand and one contusion on the back. Bhagwan Singh had one contusion, a cut on the scalp on the right side 2 1/2;'x1' with a depth of about 1'. Bhavi Chand's injury may be reproduced here;
Triangular cut on the scalp 5' x 2' broad and another slit of 3' long.
At the time when Bhavirhand was taken to the hospital, his pupils were dilated and he was bleeding from ear and nose Blood pressure was not recordable and he was in a semi-conscious state. Injury No. 1 was, according to the doctor, caused by a sharp object and was grievous in nature His injury report is Ex. P-7, On opening the body, the following facts were found by the doctor:
Fracture of parietal bone across the sagital suture. The injury was ante-mortem in nature There were haemorrhages in the brain and the membranes were cut along the lines of scalp cut.
According to the doctor, the injury was sufficient in the ordinary course of nature to cause death.
7. After the usual investigation, the accused appellants were charge-sheeted in the court of the Additional Munsiff-Magistrate, Bayana, who by his order dated 7.2. 69 after injury under Chapter XVIII Cr. P.C. committed the accused persons to face their trial under Sections 302, 303-324, 325-326 read with Section 149 I.P.C.
8. The accused appellants pleaded not guilty and claimed to be tried.
9. The prosecution in all examined 16 witnesses out of which Ramdhan PW 2. Bhagwan Singh PW 3, Bheemsingh PW 4, Hariram PW 5, Nihal Singh PW 6, Teekam PW 7, Gyasiram PW 8, are said to be the eye-witnesses. Out of these eye-witnesses, Ramdhan, PW. 2, Bhagwan Singh PW 3, Bheem Singh PW 4, Hariram PW 5 and Nihal Singh PW 6 are alleged to be injured eye-witnesses whereas Teekam PW 7 and Gyasiram PW 8 are the non-injured eye witnesses to the incident. On behalf of the defence, two witnesses in all were examined. They are Teekam DW 1 and Dr. Anant Narain DW. 2.
10. On examination under Section 342 Cr. P.C. accused Dhanpal, Mangilal and Bora denied their presence on the spot at the time of the incident. The positive defence version has been disclosed by Ramswarup accused in his statement under Section 342 Cr. PC. which may be translated in English as follows:
At the time of the incident, I was at my well At that time the members of the complainant-party namely Amichand, Dharma, Govind, Nihal Singh Daroga. Sirmara, Hariram, Ramswarup, Revti, Bheem, Ramdhan, Bhagwan Singh, Ramkhilari. Teekam, Tota Maharajsingh and Gordhansingh in all 17 persons came armed with lathies from the village side at my well and caused me severe beating I entreated them to desist from beating. Santoria, Ramkhilari, Rambabu, Ramkishen, Surajmal, Laturia, Chhitaria and Harisingh and some other persons came to rescue me but they also received injuries at the hands of the complainant party.
Ramswarup accused further stated that he did not know as to who had caused injuries to the members of the complainant-party. The gist of the statements of the remaining appellants who had admitted their presence at the time of the incident is broadly in the same terms. All the appellants who had admitted their presence at the time of the incident except Rambabu have denied to have given any beating to the numbers of the complainant-party Rambabu has, however, admitted that he took out a stick fixed on the well and wielded it to ward off the attack in order to save himself and in the act of wielding some body might have been injured
11. The learned Sessions Judge came to the conclusion that the death of Bhavi Chand was a homicidal one. He also recorded a finding that all the accused were members of an unlawful assembly and they inflicted injuries on the person of the four prosecution witnesses Ramdhan PW. 2, Bhagwan Singh PW. 3, Hariram PW. 5 and Nihal Singh PW. 6 and also on the person of Bhavi Chand since deceased. The learned Judge however rejected the prosecution version that the incident started first at the field of Ramdhan as no bloodstains were found in that field. He, therefore, recorded his finding in this connection in these terms:
In the circumstances I am inclined to doubt this aspect of the case of the prosecution that the trouble started in the manner presented by the prosecution.
He further found that no right of private defence accrued to the accused person as in his opinion it was a free fight and in a free fight no right of private defence is available to the accused persons. Having come to this conclusion he convicted the accused person as already referred to above.
12. Mr. Chatterjee on behalf of the appellants has urged that the story as told by the prosecution is not at all proved. Even the learned Judge, so submitted the counsel, has rejected the version of the prosecution that the trouble in the first instance started at the field of Ramdhan. He submitted that whereas in the first information report there is mention of only an incident in the field of Ramdhan, the story developed during the trial envisages two incidents: One at the field of Ramdhan and the other at the Dagra near Johri Jat's field. On these premises, the learned Counsel urged that the prosecution has failed to prove the case as put forth by it in the first information report and therefore the accused should be acquitted on that account alone. He also submitted that the learned Judge evolved a new case on behalf of the prosecution by holding that the incident took place near about the Neem tree just near the Medh of Johri Jat's field.
13. It is true that in the first information report it was alleged that all the accused appellants had criminally trespassed into the field of Ramdhan and had given serious beating to him There is no mention of the fact of beating near about the neem tree in the first information report. The learned Counsel wanted us to discard this whole prosecution story as there was serious omission in the first information report with respect to the fact of incident having taken place in the field of Ramdhan. In the first instance and so also the omission of the fact of catching hold of Ramdhan and thereafter dragging him to the Dagra. In other words, the contention of the learned Counsel is that the learned trial Judge having discarded the version of the prosecution in material particulars had no jurisdiction to re-construct a story of his own. It may be stated here that the testimony of the above referred four injured eye-witnesses as well as the two un-injured eye-witnesses namely Teekam and Gyasiram is uniform as to the version that the incident had taken place near about the neem just near the Med of Johri Jat's field. The appellants were fully alive to this part of the case as will appear from the questions put to them under Section 342 Cr. P.C. Although in the first information report, the incident is alleged to have taken place at the field of Ramdhan, but the distance between the field of Ramdhan and the place of occurrence is 30 to 35 paces only. As pointed out earlier, both the fields of Ramdhan and Johari Jat are contiguous to each other. It appears to us that Ramdhan had tried to shift the place of incident to his field presumably by way of exaggeration and establishment in order to save himself and the members of his party from the apprehended accusation against them of causing injuries to the accused party. But nevertheless in broader details, the testimony of the eye witnesses injured as well as uninjured are uniform as to the fact of beating by the party of the accused near about the neem tree. Moreover, the testimony of the eye-witnesses finds due corroboration from the fact that blood stains on the earth were found at the Med of Johari Jat's field near the neem tree. Nothing substantial has been brought out in their cross examination to discard their testimony in regard to substratum of the prosecution version.
14. Mr. Chatterjee's further attack on the testimony of the eye witnesses was that they have suppressed the truth when they had deposed that they were unarmed and that they neither caused injuries to the party of the accused nor did they notice any injury on the person of the members of the accused party during the incident. He has then fore submitted that as the prosecution has failed to explain the injuries found on the bodies of the accused persons, we must discard the entire prosecution evidence. In this connection he invited our attention to the observations contained in Mohar Rai v. State of Bihar : 1968CriLJ1479 . In that case on the facts the court came to the conclusion that the failure on the part of the prosecution witnesses to explain the injuries on the person of the accused went to show that the prosecution witnesses were not truthful witnesses and further on the material on record, the Supreme Court held that the possibility of the plea of self-defence could not be ruled out. On the other hand, in Bankey Lal v. State of UP : 1971CriLJ1540 , the Supreme Court distinguished Mohar Rai v. State of Bikaner (supra) and proceeded to observe that:
If prosecution witnesses are proved to have not deposed truly in all respects, their evidence is required to be scrutinised with care.
15. The question, however, is whether on account of these infirmities we should reject the whole prosecution story. It, of course, transpires from the record that as many as five accused had received injuries at the hands of the members of the complainant-party and the prosecution has not been able to explain them, but that by itself, in our opinion is not sufficient to discard the whole prosecution case. We may point out that the maxim Falsus in uno, Falsus in omnibus is neither a sound rule of law nor a rule of practice. Hardly one comes accosts a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments, It is, therefore, our duty to scrutinise the evidence carefully and in terms of the apt metaphor, separate the grain from the chaff. Having done that, if the substratum of the prosecution case is found to be true, then merely because of the embellishment, improvements or exaggerations, the case of the prosecution cannot be thrown out On the other hand, if the substratum of the prosecution case is not worthy of credit or the material parts of the evidence do not inspire conviction we would not try to salvage the infirmities by re-construction the new story. In our view, the substratum of the prosecution does not stand discredited in material particulars. All the prosecution witnesses have uniformly deposed as to the date and the time of the incident and so also as to the part played by each of the accused in the incident and to the nature of the weapons used by them during the incident. It is further proved by the witnesses that the members of the complainant-party received injuries which are duly corroborated by Dr. Bal Kishan PW. 1. The change of the place of incident, in our view, is of very little significance looking to the very short distance between Ramdhan's field and the place of the incident. The trial Judge cannot be said to have re-constructed a new prosecution story, as, in our opinion, the substratum of the story in material particulars remains the same and the accused could not be said to be in any way prejudiced on that account.
16. It was urged on behalf of the appellants that at any rate even if it is held that the accused persons had caused injuries to the members of the complainant party, the appellants were protected under the right of private defence of their person. In this connection, the learned Counsel took us to the injury reports Exs. D-20 to D-25 Ex. D-20 relates to Rambabu, Ex. D-21 related to Teekam, Ex. D-22 to Santoria, Ex. D-23 to Ramkhilari, Ex. D-24 to Ramswarup and Ex. D-25 to Surajmal. Rambabu had three injuries: two contusions and one inflammation of inter pharyngeal joint of thumb left hand dorsal aspect. Teekam had one injury and inflammation 2' X 1' on the right parietal reign interior to right parietal imminence. Santoria had also three injuries: one abrasion plus one contusion and one inflammation of imminence of thumb and dorsal aspect of first Metacarpal region. Likewise Ramkhilari had only one injury in the nature of inflammation 3' X 2' on dorso medial aspect of the left hand. Ramswarup had, however, in all 20 injuries. We deem it proper to reproduce these injuries as it will go a long way to determine the part of Ramswarup in the course of incident:
1. Incised wound 3' X 3/4' X 1/2' vertically on anterior aspect of left shoulder directing from below upwards and backwards in lower half.
2. Abrasion 1' X 1/6' skin deep in continuation of injury No. 1 and above it, vertically.
3. Lacerated wound 1/4' X 1/4' X 1/6' on posterior medial aspect of left fore-arm near Junction of upper 1/4th and lower 3/4 with inflammation of upper 3/4 of left forearm.
4. Punctured wound 1' X 1/4' X 1/3' on posterior aspect of right forearm 2' below elbow joint.
5. Contusion 4' X 1/2'-obliquely postero lateral aspect of Rt. forearm with inflammation of upper 1/4th of Rt. forearm.
6. Contusion 3' X 1' obliquely on right side of Back postero axillary line of level of 12th thoracic vertabra.
7. Inflammation 1/2' X 1/4' superficial on Rt. glutial region with abrasion.
8. Abrasion 1/4' X 1/4' superficial three in number on a(SIC)t. aspect of right knee joint
9. Lacerated wound 1' X ' x ' near right parietal imminence.
10. Contusion 3' X 1/2' on Rt back near pit of axilla.
11. Contusion 1' X 1'- on back 1' below injury No. 10.
12. Contusion 4' X l' vertically on right back 1' lateral to mid line from 6th thoracic level to 10th thoracic level.
13. Contusion 1' X 1' below upper injury (No. 12) with abrasion.
14. Contusion with abrasion 1' X 1' below injury No. 13 of 12th thoracic level.
15. Contusion with abrasion 1' X 3/4' on back 1' below injury No. 12.
16. Contusion 1X' X ' on back 1' below injury No. 15.
17. Contusion with abrasion 3' X 1' on mid line of 4th thoracic level.
18. Contusion 1' X 1' on left back 1' lateral to mid line 12th thoracic level.
19. Contusion 2' X '- right side of back on the spine of scapula.
20. Contusion 2' X 3/4' on Lt. Scapula region near pit of axilla.
17. A perusal of the injury report of Ramswarup will reveal that he was injured with at lest three types of weapons, as the injuries can be broadly classified into three classes namely lacerated wounds, cut wounds and punctured wounds. The origin of and the manner in which the fight started is not clear from the record. It is, however, proved on the record that the incident did not take place at the well of Ramswarup nor at his field. It is also apparent that the incident had not taken place near the Neem tree of Ramswarup's hut but near the Med of Johari Jat's field. It is also not established on the side of the defence nor can it be spelt from the record that the members of the complainant-party started aggression. In such state of affairs, we are unable to concede the right of private defence to the members of the accused party. In order to invoke the right of private defence of person, the burden lies first on the defence to make out a case that there was an apprehension of death or previous injury from the side of the complainant party and it was in order to save the brunt of the attack that the accused persons had caused injuries and harm not more than necessary. From the record it is not at all established that the members of the complainant-party first started aggression which had given apprehension in the minds of the accused persons that they would receive injury either simple or grievous. Of course, broadly stated, the burden of proof never shifts and always remains on the prosecution. Nevertheless when the aid of the Exception under the right of private defence is invoked, the defence should at least by reasonable and plausible version satisfy the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the complainant-party. After going through the entire evidence on the record, we are not at all satisfied that the defence has discharged the initial burden which lay on them when they invoked the Exceptions enacted by Sections 97, 98 and 99 I.P.C.
18. Learned Counsel however contended that the members of the accused party had received injuries and more specially accused Ramswarup had received as many as 20 injuries on his person and this fact alone should be held sufficient to raise a presumption that the members of the complainant party were aggressors and it was to ward off the aggressors that the accused persons had in the exercise of the right of their private defence of person given beating to the members of the complainant party. We are unable to accede to this contention of the learned Counsel either Although the injuries on the person of the accused is one factor which weighs with the court to appreciate the evidence of the prosecution or to construe the plea of right of private defence but it cannot be stated as a universal rule that whenever the injuries are found on the person of the accused persons, a presumption is to be necessarily raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the members of the accused party probablise the version of the right of private defence. In the instant case, it is not at all clear that the injuries caused by the accused person's are consistent with the exercise of the right of private defence. We are, therefore, constrained to hold that the accused persons have failed to establish their right of private defence of person. In the facts and circumstances of the case. We, therefore, reject the contention of the learned Counsel for the appellants on this point.
19. It was next urged by the counsel for the appellants that the trial court was in error in holding that the accused persons constituted an unlawful assembly the common object of which was to cause murder of the deceased Bhavichand and also to cause injuries to the members of the complainant-party. The counsel submitted that the trial Judge having held that the case was of a free fight was obviously in error to hold the accused persons members of an unlawful assembly & further to have caused the death of Bhavichand & also to cause injuries to the members of the complainant-party in the prosecution of their common object. He submitted that when the injuries are sustained by the persons in the course of a free fight, then only those persons who are proved to have caused injuries or death can be held guilty for the offence individually committed by them, inasmuch as in a mutual free fight, there is no common object and none of the accused can be convicted by having recourse to Section 149 I.P.C. In this connection he invited our attention to the definition of ''free fight' as laid down in Gajanand v. State of Uttar Pradesh : AIR1954SC695 We cannot do better than quote the words of their Lordships of the Supreme Court which are as follows:
A free fight is 'When both sides mean to fight from the start, go out to fight and there is a pitched battle. The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival commanders.
The learned Sessions Judge after perusing the record bad recorded a finding that there was a free fight between both rival groups of the accused persons as well as the members of the complainant-party We have perused the record. Form the record we notice that a ditch was dug by Rambabu in the field of Ramdhan which had infuriated Ramdhan. The accused persons looking to the serious grievance made by Ramdhan apprehended that he would bring his party-men for picking up a quarrel with them It is apparent from the record that prior to the arrival of Ramdhan the members of the accused party had assembled in the hut of Ramswarup Although the prosecution witnesses have stated that they had gone unarmed on hearing the cries of Ramdhan who was being beaten, but looking to the nature of injuries on the five accused persons, we are satisfied that the eye-witnesses are concealing the fact of beating given to the accused persons. It appears to us that Ramdhan having felt offended and having failed to persuade Ramswarup to fill up the ditch must have brought his party men as many as 15 in number on the spot to try the strength with the members of the accused party. Both the sides, in our opinion, therefore meant to fight from the start and from the evidence on record, it appears it is a case of battle amongst both the parties The learned Sessions Judge has fully discussed the factual aspect and has given cogent reasons, and, in our opinion, has rightly treated it as a case of tree fight.
20. The question therefore arises: can the accused persons be said to be members of an unlawful assembly and convicted under the various offences with the aid of Section 149 as members of an unlawful assembly Learned Counsel invited out attention in this behalf to K.N. Virji v. State of Gujarat : 1970CriLJ363 . In this case it has been held that:
Where there was a melee at the time of the incident and the two groups indulged in a free fight resulting in injuries to persons of both groups and death of two, if the Court comes to the conclusion that the injuries sustained by the persons were in the course of a free fight, then only those persons who are proved to have caused injuries or death can be held guilty for the offence individually committed by them.
In Munirkhan v. State of U.P. : 2SCR338 it has been held that in a mutual fight there is no common object and none of the accused can be convicted by having recourse to Section 149 of the Indian Penal Code. In 1962 M.L.J. (Cr.) 353, it has been laid down that in a case of free fight between the party of the accused and the party of the deceased none of the accused can be held constructively responsible for the acts of others. Each one must be held responsible for his own act. In view of the legal position enunciated above, we are of the opinion that the learned Sessions Judge was wholly mistaken in holding the accused persons to be the members of an unlawful assembly and consequently in convicting them by having recourse to Section 149 I.P.C. The convictions of the appellants can not be sustained under various sections by having recourse to Section 149 I.P.C.
21. Learned Counsel for the State urged that the appellants could be convicted under various specific offences with which they were charged. Mr. Chatterjee on the other hand urged that the learned trial Judge has, excepting Ramswarup who has been convicted under Section 302 I.P.C., under the specific charges levelled against them, convicted the rest or the accused by having taken recourse to Section 149 I.P.C. after holding the accused party as member of an unlawful assembly. The finding of the learned Sessions Judge in regard to specific charges against them is contained in para 58 of his judgment and may be quoted for ready reference:
For the others, it cannot be definitely said as to who dealt what blows on which person. I have earlier remarked chat in such cases confusion is likely to prevail.
Having so observed, the learned Judge proceeded to convict the accused persons under various offences with the aid of Section 149 and did not choose to convict them for specific offences simpliciter with which the various accused persons were charged. In our opinion this finding of the learned Judge amounts to acquittal so far as the specific charges under various sections were concerned In this connection, reference may be made to Kishan Singh v. Emperor AIR 1928 PC 254. In that case the accused was charged with the offence of murder under Section 302 I.P.C. in the Sessions Court He was, however, convicted under Section 304 and sentenced to a term of imprisonment. The local Government applied to the High Court in revision. The High Court hiving considered the evidence came to the conclusion that there had been a miscarriage of justice in the trial Court. They accepted the application and directed that the conviction of the accused should be altered to a conviction under Section 302 and they sentenced him to death. On these facts, their Lordships of the Judicial Committee held that the accused must be deemed to be acquitted in the Sessions Court of the charge of murder and that the order of the High Court resulted in altering a finding of acquittal into one of conviction and was therefore without jurisdiction.
22. Learned Counsel for the appellants therefore urged that the accused persons having been impliedly acquitted for the specific offence with which they were charged, this Court has no jurisdiction to alter the finding of acquittal more specially when the State has not chosen to file appeals against the acquittals of the accused. In this connection, he referred to us State of Andhra Pradesh v. T. Narayana AIR 1952 SC 240 and urged that the scope of the appeal before us is confined to the challenge by the accused to their convictions and the State having not preferred appeal against the order of acquittal in respect of the specific charges, this Court cannot convert acquittal into conviction in an appeal by the accused persons against their conviction In this case, the Supreme Court has held that:
Section 423(1)(b) is clearly confined to cases of appeals preferred against orders of conviction and sentence, the powers conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged, in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved.
Lakhan Mahto and Ors. v. State of Bihar : 1966CriLJ1349 also takes the same view. In this case, in a murder trial of several accused persons, Lakhan, one of the accused, who was specifically charged under Section 302 I.P.C. was acquitted of that offence but was convicted under Section 302/149 I.P.C. and was sentenced to imprisonment for life Lakhan was also convicted Under Section 326/149 but no separate sentence was. passed against him. Lakhan appealed against his conviction but the Govt. did not file any appeal against his acquittal Under Section 302 I.P.C. The High Court in that appeal altered the conviction of Lakhan from Section 302/149 I.P.C. to one under Section 326 I.P.C. In that state of facts, the Supreme Court held that the High Court had acted without jurisdiction in altering the finding of acquittal of Lakhan on the charge under Section 302 I.P.C. and convicting him on the charge under Section 326 I.P.C. The Supreme Court further observed that:
In exercising the powers conferred by Section 423(1)(b) Cr. P.C. which is clearly confined to appeals against convictions the High Court could not in the absence of appeal by the State against the acquittal convert the order of acquittal in to one of conviction. That result could be achieved only by adopting the procedure prescribed by Section 439.
It was further observed that:
The High Court was not correct in taking the view that Section 149, I.P.C. does not constitute a substantive offence, that it was only an enabling section for imposition of vicarious liability and that the conviction on vicarious liability can, therefore, be altered by the appellate court to conviction for direct liability, though there was an acquittal by the trial court of the direct liability of the offence.
The Supreme Court, therefore, held that the High Court could not alter conviction under Section 302/149 into one under Section 302 or Section 326 I.P.C.
23. Learned Counsel for the State then urged that the conviction under substantive offence with the aid of Section 149 could be converted into one under substantive offence read with Section 34 I.P.C. as both the sections relate to vicarious liability of the accused persons. In this connection he has cited Kartar Singh v. State of Punjab AIR 1961 SC 1787, Mohansingh v. State of Punjab : AIR1963SC174 and Jagir Singh v. State of Punjab : 1968CriLJ89 . In all these cases it has been laid down that apart from the question of prejudice which may have to be carefully considered, there is no legal bar preventing the Court from altering conviction of the accused persons under substantive offence read with Section 34 I.P.C. We, therefore, agree with the learned Counsel for the State so far as this contention is concerned.
24. The important question, however, remains to be considered is whether Section 34 I.P.C. could be invoked in the instant case of a free fight. We have examined this point very carefully. In a case of a free fight as already referred to earlier, there can be no lawful assembly nor can there be any common object in prosecution thereof. The liability of the accused in such a case is only individual liability for the acts committed by each one of them. It cannot be disputed that Section 34 also relates to the constructive or vicarious liability. In our opinion, the principle of constructive liability cannot be availed in a case of free fight as the accused persons could be held liable for their individual acts only. Reference in this connection may be made to K.N. Virji v. State of Gujrat (Supra) where their Lordships of the Supreme Court have held that where two groups indulged in a free fight resulting in injuries to persons of both groups, and if the court comes to the conclusion that the injuries sustained by the persons were in the course of a free fight, then only those persons who are proved to have caused injuries or death could be held guilty for the offence individually committed by them.
25. In a nut shall, the position of law appears to be that once the court comes to the conclusion that the injuries sustained by the persons on both side, were in course of a free-fight as the learned Sessions Judge has come to in the present case, then only those persons who are proved to have caused injuries can be held guilty for the injuries caused by them.
26. So far as the case of Ramswarup appellant is concerned, it stands on a different footing as he has been charged specifically under Section 302 I.P.C. simpliciter as well as with the other offences with the aid of Section 149. We will, therefore, deal with his case separately later on. We may however first deal with the argument of the learned Counsel with regard to those appellants who have been impliedly acquitted of the offences under various specific sections and have been convicted with the aid of Section 149 It is not in dispute that the State did not prefer an appeal against the order of acquittal of the appellants under the various specific sections. The order of acquittal for specific offences therefore could not be challenged in the absence of any appeal on behalf of the State. Consequently on the facts of this case and in view of the law laid down in Kishan Singh v. Emperror (supra). State of Andhra Pradesh v. T. Narayan (supra) and Lakhan Mahto and Ors. v. State of Bihar (supra) the appellants cannot be convicted under the specific offences with which they were charged.
27. We now take up the case of Ramswarup who has been individually charged under Section 302 I.P.C. also. Ramswarup is alleged to have given a Farsi blow on the head of the deceased Bhavi Chand who subsequently died in the Bayana hospital. No specific part has been assigned to him in the first information report excepting the omnibus allegation that all the accused persons gave a beating to the interveners (complainant-party) with lathis, Ballams and Farsis. The first information report has been lodged by Ramdhan who was seriously aggrieved against Ramswarup who had dug a ditch in his field. It is incomprehensible that Ramdhan who had made the first information report and who is admittedly an eye-witness should have left out the specific and fatal part of Ramswarup who happened to be rather his arch enemy.
28. It. is also not understandable that Ramswarup who is alleged to have been armed with a Farsi who would only given one blow and could be the victim of as many as 20 injuries at the hands of the complainant-party. If Ramswarup bad been armed with a Farsi, it would not have been possible for the complainant party to inflict 20 injuries on his person. We cannot say beyond any manner of doubt therefore that Ramswarup was armed with a Farsi. All the eye-witnesses excepting Teekam (P.W. 7) and Gyasi (P.W. 8) are Gujars by caste whereas all the accused persons excepting the accused Bora are Jats. All the witnesses of the complainant excepting Teekam and Gyasi are therefore partisan witnesses. So far as Teekam is concerned, he is a Hali of the complainant Ramdhan and is an interested witness. Gyasi P.W. is Teekam's real brother. He is merely a chance witness and we doubt whether he was at all present on the spot.
29. On a closer examination of the testimony of the prosecution witnesses, it appears that they have deposed that the incident took place in the first instance at Ramdhan's field which fact is not corroborated in the absence of any blood stains at the alleged place of occurrence. They are, therefore, guilty of serious exaggerations and embellishments. Moreover, they have also suppressed a very significant fact as to the injuries on the person of as many as five members of the accused party. Besides this, Bheemsingh PW 4 has attributed 'sela' in the hard of Ramswarup. The learned Sessions Judge's finding, so far as Ramswarup is concerned, it rather cryptic. He has disposed of the case in very few lines which may be reproduced as below:
Virtually every body states that Ramswarup dealt the Pharsa blow on the head of Bhavi Chand felling him down. This statement has gone unassailed. Therefore beyond any manner of reasonable doubt, we must hold that Ramswarup dealt a fatal blow on the head of Bhavi Chand.
The learned Judge has nor cared to notice the significant omission in the first information report as to the part played by Ramswarup. He has also failed to notice that the witnesses are interested witnesses and were guilty of suppression of the injuries on the person of Ramswarup and other four accused. The eye-witnesses have stated that they were unarmed and they did not know whether any injuries were caused to the members of the accused party.
30. In this state of affairs, no reliance can be placed on the testimony of the prosecution witnesses as against Ramswarup. It is, therefore, in our opinion, not at all safe to convict Ramswarup of a serious charge. We, therefore, hold that prosecution has failed to prove the case beyond any manner of doubt against Ramswarup. We, therefore, give benefit of doubt to the accused Ramswarup.
31. In the result, we allow this appeal and set aside the convictions of the appellants and acquit them of all the offences with which they have been charged. All the accused except Ramswarup are on bail and they need not surrender to their bail bonds. Their bail bonds are discharged. Accused Ramswarup is in custody and he shall be set at liberty forthwith if not required in connection with any other matter.