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Judgment
Bhagwati Prasad, J.—The present appeal is filed against the judgement and order passed by the learned Additional Sessions Judge, Fast Track Court, Dhangdra on 16.8.2003 in Sessions Case No. 25 of 2001. The learned trial Judge by the aforesaid judgement convicted the accused for the offences under Sections 302, 323, 506, 147, 148 & 149 of the Indian Penal Code and sentenced them to life imprisonment and fine of Rs. 200, in default rigorous imprisonment for one month.
The accident took place on 17.10.2000. Thereafter, the accused were arrested. Investigation was carried out. Chargesheet was submitted. Case was committed to trial. The learned trial Judge after completion of trial, convicted the accused as aforesaid.
Advertently, the facts come out in the case are that there were cross-cases. The complainants were also chargesheeted and prosecuted. There were injuries on the person of the accused. The facts of the incident are not disputed. The learned Counsel for the appellant urges that in such cases where there is a kind of free fight vicarious liability would be invited and in that view of the matter, the conviction of the accused persons with the help of vicarious liability enabling section is not sustainable.
If the implication of Section 149 of the Indian Penal Code is taken off then the individual part of the accused has to be seen. As far as individual parts are concerned, accused Nos. 1, 2 and 3 are not said to have caused any injuries to the deceased and the injuries sustained by the deceased are superficial injuries. Therefore, their participation is of no consequence and no help to the lprosecution for being convicted.
As far as accused Nos. 4 and 5 are concerned, they are alleged to have caused one injury each to the deceased and then in that background accused No. 4 had sustained injury on the head and it may be said that it was a case of exercise of right of private defence. The injury which proved fatal is an injury which is in exercise of the right of private defence. In that view of the matter, we are persuaded to hold that the case of accused Nos. 1, 2 and 3 deserves consideration for acquittal and the charges proved against them cannot be sustained.
As far as accused Nos. 4 and 5 are concerned, they have caused injuries each to the deceased which are responsible for death of the deceased but in that accused No. 4 had sustained head injury. Therefore, it can be said that it was in exercise of right of private defence and accused has exceeded the same. In that background, we are not persuaded to sustain conviction u/s 302 of the Indian Penal Code and acquit the accused of the charges proved u/s 302/149 of the Indian Penal Code and other Sections. Instead, they are convicted u/s 304 Part II of the Indian Penal Code and sentenced them to 7 years'' rigorous imprisonment and fine of Rs. 100/-, in default one month''s rigorous imprisonment. The other convictions are, of course, not liable to be sustained because they are with the help of Section 149 of the Indian Penal Code where there is rioting case under Sections 147, 148 of the Indian Penal Code which was in a melee and conviction under other Sections is set aside.
In the result, the appeal is allowed partly. Accused Nos. 1, 2 and 3 are acquitted of all the charges levelled against them and their conviction and sentence is set aside. They are behind the bars. They should be set free if not required in any other case. As far as accused Nos. 4 and 5 are concerned, their conviction u/s 302/149 of the Indian Penal Code is set aside. Instead, they are convicted u/s 304 Part II of the Indian Penal Code and sentenced to seven years'' rigorous imprisonment and fine of Rs. 100/- each and in default, one month''s rigorous imprisonment. Their conviction under other Sections is set aside. They are behind the bars. They should serve out their sentences.