[ REPORTABLE ]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 82-83 OF 2005

Raghubir Singh                                          ………Appellant

Vs.

State of Rajasthan & Ors.                         …….Respondents WITH

CRIMINAL APPEAL NO.778 OF 2005

J U D G M E N T

HARJIT SINGH BEDI, J.

1. This judgment will dispose of Criminal Appeal Nos. 82-83  

and 778 of 2005.  The facts have been taken from Criminal  

Appeal No. 778 of 2005.

2. As per the prosecution story,  PW Prabhu Koli  and his  

brothers had mortgaged 5 bighas of land comprising Khasra  

No. 250 to PW-1 Raghuveer Singh several years earlier to the  

incident.  At about 2 p.m. on the 7th August 1997, Raghuveer  

Singh alongwith Chhotey Lal, Rajendra, Munshi and Girdhari  

were in the process of ploughing the land when the accused,  

Kallu, Kamru, Taiyab and Rahmat reached that place on two

tractors  and  also  

started ploughing the same land.  Raghuveer Singh protested  

at this intrusion on which they attempted to run him over with  

their tractors.   In the meanwhile,  Asuddin, Mehboob, Mauj,  

Sohan Lal  and Kamru armed with Farsis,  Tanchias,  Dantis  

and  lathis  attacked  them  and  whereas  Mauj  and  Asuddin  

inflicted  blows  with  a  Danti  and  Tanchia  on  the  head  of  

Girdhari, Kallu and Rahmat ran over him with their tractors,  

and when Raghuveer Singh attempted to intervene in favour of  

Girdhari,   Asuddin, Taiyab and Kamruddin also caused blows  

to him with their weapons.  Girdhari died on the spot whereas  

Chhotey Lal,  Lallu,  Rajendra and Munshi sustained serious  

injuries.   Raghuveer  Singh  thereafter  went  to  the  Police  

Station and submitted a written report at 5.30 p.m. the same  

afternoon  and  on  its  basis  a  First  Information  Report  was  

drawn up.  On the completion of the investigation, the accused  

were  charged  under  various  provisions  of  the  Indian  Penal  

Code,  they  being inter-alia  Sections  302 and 302/149,  307  

and 307/149.  The prosecution in support of its case relied on  

the  evidence  of  17  witnesses  in  all,  the  primary  witnesses  

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being  PW-1  

Raghuveer Singh, the first informant, PW-2 Rajendra Kumar,  

PW-3 Chhotey Lal, PW-4 Munshi Ram, PW-5 Lallu Ram, PW-6,  

Suresh Kumar and PW-7 Than Singh.  The prosecution also  

relied on the statement of PW-14 Dr. Sanjay Gupta, who had  

conducted the  autopsy on the dead body and had found 5  

injuries  thereon  and  also  examined  five  of  the  witnesses  

aforementioned  i.e.  Raghuveer  Singh,  Rajendra  Kumar,  

Chhotey Lal, Munshi and Lallu and found several injuries on  

their persons, some of them grievous in nature whereas from  

the side of the accused Taiyab, Kallu, Rahmat, Asuddin and  

Kamru were found to have been injured, though with simple  

injuries.  In their statements recorded under Section 313 of  

the Cr.P.C. the accused denied their involvement simplicitor.  

They did not lead any evidence in defence.   The trial  court  

relying  on  the  aforesaid  eye  witnesses’  account  and  the  

medical evidence convicted 7 of the 9 accused under Sections  

302, 302/149, 307 and 307/149 etc. of the IPC and sentenced  

them  to  various  terms  of  imprisonment  under  those  

provisions.  The trial court, however, acquitted Mehboob Khan  

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and Taiyab.  The 7  

accused who had been convicted by the trial court challenged  

their conviction by filing DB Criminal Appeal No. 796 of 1998  

whereas  the  complainant  PW Raghuveer  Singh  assailed  the  

acquittal  of  Mehboob Khan and Taiyab Khan by filing D.B.  

Criminal Revision No. 188 of 1999.  During the pendency of  

the appeal in the High Court, Rahmat passed away and the  

proceedings against him were disposed of as having abated.  

The High Court on a reconsideration of the evidence came to  

the  conclusion  that  the  land  on  which  the  incident  had  

happened did not belong to Prabhu but in fact belonged to the  

Forest Department and was adjacent to the fields of accused  

Mauj Khan and Rahmat and that the complainant party had,  

on the fateful day, gone for the first time to cultivate the said  

land, although Patwari had advised them not to do so.  The  

court  also  found  that  the  accused  appeared  to  be  in  

possession of the said land and finding that the complainant  

party had trespassed into it and had started ploughing had  

lodged a protest on which a free fight had ensued and persons  

from both sides had received injuries on which an FIR had  

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also  been  

registered  against  the  complainant  party  by  Kallu  accused.  

The  court  accordingly  concluded  that  in  this  view  of  the  

matter, the provisions of Sections 147, 148 and 149 could not  

be attracted and each of the accused was to be held liable and  

responsible for his individual act.  The High Court accordingly  

examined the role of each of the accused and observed that  

though Kallu had been charged under Section 302 of the IPC  

for having caused the fatal injury on the left side of the back of  

Girdhari with the cultivator by running over him he did not  

have the intention to cause death and as such he would be  

liable  under  Section  304  Part  II  of  the  IPC.   The  court  

accordingly  modified  the  conviction  and  sentence  of  the  

accused as under:

(i) “Appeal of appellant Rahmuddin is allowed and he  is acquitted of the charges under Section 302/149,  447, 147,325/149,324/149 and 323/149 IPC.  He  is  on  bail,  he  need  not  surrender  and  his  bail  bonds stand discharged.

(ii) As  appellant  Rahmat  Khan  died  during  the  pendency of  the appeal,  proceedings  against  him  stand dropped.

(iii) Appeal  of  appellants  Kallu,  Asuddin,  Sohan  Lal,  Kamruddin and Mauj Khan stands partly allowed.  Conviction  of  appellant  Kallu  under  Section  

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302,447,148,325/149,324/149 and 323/159 is set  aside,  instead he is  convicted under Section 304  Part II IPC. As he had been in confinement for a  period of more than six years, ends of justice would  be  met  in  sentencing  him  to  the  period  already  undergone by him in confinement, Kallu, who is in  jail, shall be set at liberty forthwith if not required  in any other case.

(iv) Conviction of appellants Sohan Lal, Mauj Khan and  Asuddin under Section 302/149,447,148,325/149  and  323/149  stands  set  aside  and  they  are  acquitted  of  the  said  charges.  Their  conviction  under Section 324 IPC is however confirmed and  they are sentenced to the period already undergone  by them in confinement. Sohan Lal and Mauj Khan  are on bail, they need not surrender and their bail  bonds stand discharged. Appellant Asuddin, who is  in  jail,  shall  be  set  at  liberty  forthwith,  if  not  required in any other case.

(v) Conviction of appellant Kamruddin under Sections  302/149,447,148,324/149  and  323/149  is  set  aside and he is acquitted of the said charges. His  conviction under Section 325 IPC however stands  confirmed  and  he  is  sentenced  to  the  period  already undergone by him in confinement. He is on  bail,  he  need  not  surrender  and  his  bail  bonds  stand discharged.

(vi) D.B.Criminal  Revision  No.188/1999  being  devoid  of merit stands dismissed.

(vii) The impugned judgment of the learned trial judge  stands modified as indicated above.”

3. The acquittal  of  Mehboob Khan and Taiyab Khan was,  

however,  maintained  on  the  plea  that  the  ocular  testimony  

was not corroborated by the medical evidence.  It is in this  

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situation  the  

present set of appeals has been filed by the State as well as by  

PW-1 Raghuveer Singh.   

4. We  have  heard  Dr.  Manish  Singhvi,  the  learned  

Additional Advocate General for the State of Rajasthan, Ms.  

Aneetha Shenoy, the learned counsel for Raghuveer Singh, as  

also  Ms.  Vibha  Dutta  Makhija  the  learned  amicus  for  the  

accused respondents.  The learned counsel for the appellants  

have raised several  arguments before  us.   It  has first  been  

pointed out that there was ample evidence to show that the  

incident had happened in the field of Prabhu which had been  

mortgaged  with  Raghuveer  Singh  and  the  accused  were  

therefore the aggressors as they had trespassed into that field  

and the finding of a free fight was erroneous, more particularly  

as the prosecution case rested on the statements of a large  

number  of  seriously  injured  eye  witnesses.   It  has  been  

emphasized that a free fight postulated that both sides had  

come to do battle, as held by this Court in Gajanand & Ors.  

vs. State of U.P. AIR 1954 SC 695  and  Bhanwar Singh &  

Ors. vs. State of M.P. (2008) 16 SCC 657 and in the light of  

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the  fact   that  the  

accused were the aggressors the finding of the High Court was  

completely  misplaced.   It  has  also  been  submitted  by  the  

learned counsel that even assuming that there was a free fight  

Asuddin, Mauj Khan, Kallu and Rahmat accused were, in any  

case, liable for the offence under Section 302 of the IPC as  

they  had  caused  injuries  to  the  deceased  Girdhari.   Ms.  

Makhija,  the learned counsel  for  the accused has,  however,  

supported the judgment of the High Court and has raised a  

preliminary  argument  that  the  High  Court’s  interference  in  

such  matters  was  required  to  be  minimal  and  if  the  High  

Court had taken a view which was possible on the evidence,  

interference  should  not  be  made.   In  this  connection,  the  

learned counsel has relied on State of U.P. vs. Banne (2009)  

4 SCC 271.  She has also submitted that the witnesses had  

suppressed the factum of  the injuries  on the person of  the  

accused,  which meant  that  the  genesis  of  the  incident  was  

uncertain and an adverse inference was to be drawn on the  

prosecution’s  case.  On  facts  it  has  been  urged  that  the  

observation of the Trial Court that the incident had happened  

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in  the  field  

belonging to Prabhu was wrong as there was no evidence to  

suggest that it had been mortgaged with Raghuveer and it was  

for  that  reason  that  during  the  course  of  the  evidence  

Raghuveer Singh had claimed himself to be a lessee on the  

land and not a mortgagee which was a clear departure from  

his earlier statement.  It has also been emphasized that the  

above submissions coupled with the fact that the dead body  

had not been recovered from the spot but had been found in  

the house of the deceased and that no plough or blood had  

been picked up from the place of incident clearly revealed that  

the incident had not happened in the field in question.  It has  

also  been submitted  that  the  story  projected  by  PW-1  that  

Kallu  had  first  knocked  Girdhari  over  with  his  tractor  and  

then using the lift of his tractor had raised the cultivator and  

then dropped it on his body had not figured in his statement  

recorded under Section 161 of the Cr.P.C. and had come up  

for the first time in court and thus could not be relied upon.  It  

has finally been submitted that PW-3 Chottey Lal, one of the  

injured  witnesses,  and  the  Investigating  Officer  PW-17  

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Samayadeen  had  

admitted in their evidence that the dispute between the parties  

with regard to the land had resulted in a sudden fight between  

the two groups and as such the observation of the High Court  

was fully justified on the evidence.

5. We first  take up Ms. Makhija’s preliminary submission  

about the scope of interference by this Court in an appeal filed  

under Article 136 of the Constitution.  As already indicated,  

the learned counsel has relied on Banne’s case (supra).  After  

reviewing a large number of  judgments of this Court, it has  

been observed in paragraph 25 thereof that if the view taken  

by the High Court was plausible or possible, it would not be  

proper  for  the  Supreme Court  to  interfere  with an order  of  

acquittal.  It has been observed thus:

“Following are some of the circumstances in which  perhaps this Court would be justified in interfering with  the judgment of the High Court, but these are illustrative  not exhaustive:

(i) The High Court’s decision is based on totally  erroneous view of law by ignoring the settled  legal position;

(ii) The High Court’s conclusion are contrary to  evidence and documents on record;

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(iii)(iii)The  entire  approach  of  the  High  Court  in  dealing with the evidence was patently illegal  leading to grave miscarriage of justice.

(iv)  The  High  Court’s  judgment  is  manifestly  unjust and unreasonable based on erroneous  law and facts on the record of the case;

(v)  This Court must always give proper weight  and consideration to the findings of the High  Court.

(vi)  This Court would be extremely reluctant in  interfering  with  a  case  when  both  the  Sessions  Court  and  the  High  Court  have  recorded an order of acquittal.”  

A  perusal  of  the  aforesaid  quote  in  a  manner  

reduces  the  scope  for  interference  by  this  Court.   We,  

therefore, have to see as to whether this Court should interfere  

on the basis of the parameters laid down above.  It has firstly  

to be borne in mind that the injuries on the accused had not  

been  explained  as  the  prosecution  witness  did  not  utter  a  

single word as to how they had been suffered by them.  In this  

view  of  the  matter,  the  defence  can  legitimately  raise  a  

suspicion that  the  genesis  of  the  incident  was shrouded in  

mystery  and the  prosecution  had suppressed  a  part  of  the  

proceeding.  It is true, as contended by Dr. Manish Singhvi,  

that each and every injury on an accused is not required to be  

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explained  and  

more particularly where all the injuries caused to the accused  

are simple in nature (as in the present case) and the facts of  

the case have to be assessed on the nature of probabilities.  

Examining the incident in the light of the above, we find that  

the injuries in the present case were required to be explained  

as there is a serious dispute as to the possession of the land in  

which  the  incident  had  happened,  more  particularly  as  

Raghuveer Singh himself was uncertain as to the nature of the  

possession as per the statements on record and the Patwari  

had also warned the complainant party not to trespass into  

the land.  Undoubtedly, there are a large number of injured  

witnesses,  some  of  them  grievously  hurt,  to  support  the  

prosecution case, but in the light of the finding of the High  

Court that there was uncertainty about the possession, this  

fact by itself cannot preclude the accused from claiming that  

no case was made out against them.  It has also to be noticed  

that  PW-3  Chottey  Lal,  one  of  the  injured  witnesses,  had  

admitted in his cross examination that the quarrel had taken  

place suddenly and that the rival groups were both saying that  

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they would sow the  

land.  This plea is also supported by the evidence of PW-17  

Samaydeen, the investigating officer, who also admitted that  

as  per  the  Patwari,  the  fight  had  taken  place  on  the  land  

possessed freshly and belonging to Gauga and Dallu and that  

the land was under the possession of the complainant party.  

This statement is at variance with the evidence of the other  

witness particularly PW-1  Raghuveer Singh as he stated that  

they had been in possession of the land in question for almost  

20 years.  There is also a doubt as to the site of the incident.  

The  dead  body  and  the  cultivator  were  recovered  from the  

house  of  PW-1,  and PW-17 admitted  that  no  blood stained  

earth had been lifted from the site. The judgment in Bhanwar  

Singh’s case (supra) cannot be made applicable as it deals only  

with the scope of an offence under Section 149 of the IPC.  In  

the  light  of  the  facts  that  have  been  enumerated  above,  it  

would be seen that the observations of the High Court that  

both sides had come to do battle appears to be justified as this  

is  an assessment on an appreciation of  the evidence which  

cannot  be  said  to  be  palpably  wrong  so  as  to  invite  the  

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intervention of this  

Court.   The  observation  in  Gajanand’s  case  (supra)  that  in  

order to bring the matter within a free fight both sides have to  

come armed and prepared to do battle must be applied in the  

present case with the result that each accused would be liable  

for his individual act.

6. With  this  background,  we  now  go  to  the  alternative  

argument made by the learned counsel for the appellants i.e.  

even accepting  the  case  to  be  one  of  a  free  fight,  the  four  

accused respondents  i.e.  Kallu,  Asuddin,  Mauj  and Rahmat  

ought to have been convicted under Section 302 of the IPC for  

having caused the murder of Girdhari.  It will be seen that the  

allegation projected against Kallu was that he was the tractor  

driver who had first knocked Girdhari over, had then driven  

the tractor over him, lifted the cultivator and then dropped it  

on his person killing him instantaneously  whereas the other  

three had also caused injuries to Girdhari with their weapons.  

We  have  gone  through  the  evidence  on  this  score  very  

carefully.  The injuries found on the dead body are reproduced  

hereinunder:

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“1.  Perforating  injury  on  back  on left side L-L (toom) region deep upto peritoneal cavity  size 12 x 5 cm x deep upto peritoneum also fracture of  9m 10 & 11th rib on posterior side.

2. Abrasion: 4 x 2 cm left side to the injury No.1.

3.  Incised wound 5 x 1.5 cm Margins regular  on right  parieto frontal region transversely. 4. Incised wound 5 x 1.5 cm on center of head between  both parietal bone longitudinally, margins regular.

5. Lacerated wound: 2 x 1 cm X 0.5 cm in middle of left  medical side.

The injuries  were ante  mortem in nature  and cause of  death was haemorrhage & shock due to injury to spleen  & left kidney by injury No.1.”

The injury with the cultivator is injury No.1 which is the fatal  

injury and has been attributed by the witnesses to Kallu.  Ms.  

Makhija has, however, argued that the story that the cultivator  

had first been lifted and then dropped on Girdhari could not  

be believed as Raghuveer Singh had not mentioned this fact in  

his evidence although the other witnesses had done so and as  

such, this story was improbable.   Even assuming,  however,  

that the cultivator had not been lifted and then dropped yet we  

find that injury No.1 had been caused with a cultivator is clear  

from the medical evidence and the extent and gravity of the  

injury shows that Kallu had the intention to cause Girdhari’s  

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death.   It  is  also  

clear  from  the  evidence  that  injury  No.1  was  sufficient  to  

cause  death  in  the  normal  course  of  nature.   The  injuries  

attributed to the other three accused mentioned herein above  

were simple in nature and can, by no stretch of imagination,  

be said to have been the cause of death.  In the light of the fact  

that we are dealing with a case of a free fight, Asuddin, Mauj  

and  Rahmat  must  be  made  responsible  for  their  respective  

injuries and Rahmat had, as a matter of fact, died while the  

matter  was  in  the  High  Court.   We  are,  therefore,  of  the  

opinion that in so far as Kallu respondent is concerned, his  

conviction under Section 304 Part II of the IPC even on the  

findings  recorded  by  the  High  Court,  was  erroneous.   We,  

accordingly,  allow these  appeals  to  the  extent  that  Kallu  is  

held guilty under Section 302 of the IPC for having caused the  

murder of Girdhari and we restore the judgment of the Trial  

Court to this limited extent.  In so far as the other accused are  

concerned, the appeals are dismissed.

7. The fee of the Amicus Curiae is fixed at Rs.7,000/- in  

each appeal.  

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…………………………….J. (HARJIT SINGH BEDI)

……………………………..J. (GYAN SUDHA MISRA)

29TH AUGUST,    2011 NEW DELHI.

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