Nafr High Court
Case Details
1 2025:CGHC:4607-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 805 of 2018 1 - Sunny Markam S/o Shri Jagmohan Markam, Aged About 26 Years, R/o Subhas Nagar, Dewar Para, P.S. Telebandha, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 2 - Jagmohan Markam @ Bhundi, S/o Shri Officer Markam, Aged About 50 Years, R/o Subhas Nagar, Dewar Para, P.S. Telebandha, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 3 - (Deleted) Vijay Markam (Died) (As Per Hon'ble Court Order Dated 21- 08-2024) 4 - Babalu Markam, S/o Shri Jagmohan @ Bhundi Markam, Aged About 22 Years, R/o Subhas Nagar, Dewar Para, P.S. Telebandha, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh --- Appellants versus 1 - State of Chhattisgarh Through District Magistrate, Raipur, Chhattisgarh. Crime No. 490/2013 P. S. Telibandha, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh --- Respondent CRA No. 1413 of 2018 1 - Shajid @ Sagid Chauhan S/o Bhukhan Dewar, Aged About 32 Years, R/o- Subhash Nagar, Dewarpara, P.S. Telibandha, Raipur, Chhattisgarh., District : Raipur, Chhattisgarh --- Appellant Digitally signed by MOHAMMAD AADIL KHAN 2 Versus 1 - State of Chhattisgarh Through- Station House Officer, P.S. Telibandha, District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh --- Respondent CRA No. 806 of 2018 1 - Kalia @ Mahasangram S/o Dhanraj, Aged About 21 Years, R/o Subhas Nagar, Dewar Para, P.S. Telebandha, District- Raipur, Chhattisgarh, District : Raipur, Chhattisgarh (since dead) 2 - Amit @ Umit S/o Manoj Markam, Aged About 20 Years, R/o Subhas Nagar, Dewar Para, P.S. Telebandha, District- Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 3 - Hukumat Dewar S/o Sajan Dewar, Aged About 23 Years, R/o Subhas Nagar, Dewar Para, P.S. Telebandha, District- Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 4 - Dodran @ Manish S/o Bahadur Dewar, Aged About 27 Years, R/o Subhas Nagar, Dewar Para, P.S. Telebandha, District- Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 5 - Shadilal Sahu S/o Late Dukalu Dewar, Aged About 55 Years, R/o Subhas Nagar, Dewar Para, P.S. Telebandha, District- Raipur, Chhattisgarh, District : Raipur, Chhattisgarh (since dead) 6 - Dhanraj Dewar S/o Shakilal Dewar, Aged About 45 Years, R/o Subhas Nagar, Dewar Para, P.S. Telebandha, District- Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 7 - Kanha @ Karan S/o Jairaj Dewar, Aged About 26 Years, R/o Subhas Nagar, Dewar Para, P.S. Telebandha, District- Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 8 - Laalu @ Awadh S/o Sajan Sahu Aged About 25 Years R/o Subhas Nagar, Dewar Para, P.S. Telebandha, District- Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 3 Versus ---Appellants 1 - State of Chhattisgarh Through District Magistrate, Raipur, Chhattisgarh, District : Raipur, Chhattisgarh --- Respondent ACQA No. 671 of 2019 1 - Pinky Markam D/o Jagmohan Markam, Aged About 25 Years R/o Telibandha, Subhash Nagar, Raipur, District Raipur Chhattisgarh. At Present Address Kurud, Mandir Hasaud, District Raipur Chhattisgarh. 2 - Jagmohan Markam @ Bhundi S/o Shri Officer Markam, Aged About 50 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. ---Appellants Versus 1 - Suklal S/o Puni Dewar, Aged About 55 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 2 - Vishal Chouhan S/o Bhukhan Chouhan, Aged About 20 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 3 - Govinda Chouhan S/o Bhukhan Chouhan, Aged About 26 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 4 - Navin Soni S/o Mulau Ram, Aged About 27 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 5 - Ghanti Chouhan S/o Dani Chouhan, Aged About 19 Years, Shiv Jogi Dewar S/o Teklal Dewar (Dead) Shammi Soni S/o Jain Singh Soni (Dead) R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 4 6 - Binu Dewar S/o Ramesh Soni, Aged About 25 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 7 - Lala @ Shilendra S/o Bhulau Soni, Aged About 34 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 8 - Sonu Gopal S/o Munna Gopal, Aged About 26 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 9 - Vikchu Soni S/o Shyam Soni, Aged About 30 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 10 - Anil Mrakam S/o Rohit Markam, Aged About 25 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 11 - Shahnaj Chouhan S/o Bhukhan Chouhan, Aged About 32 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 12 - Naresh Chouhan S/o Bhukhan Chouhan, Aged About 43 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 13 - Kurun Chouhan S/o Dani Chouhan, Aged About 21 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 14 - Ekbal Chandel S/o Bhukhan Chandel, Aged About 22 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 5 15 - Ramesh S/o Bhuklau @ Bhodhu, Aged About 48 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 16 - Suraj S/o Bhukhan Chouhan, Aged About 18 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 17 - Avinash S/o Naresh Chouhan, Aged About 22 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 18 - Buchi @ Sameer S/o Ramesh Dewar, Aged About 18 Years, R/o Subhas Nagar, Dewar Para, Police Station Telibandha, District Raipur Chhattisgarh. 19 - State of Chhattisgarh Through Station House Officer, Police Station Telibandha, District Raipur Chhattisgarh. For Appellants
Legal Reasoning
for both sides. We are of the view that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict…….” 49. The principles laid down by the Hon’ble Supreme Court in 35 Jumman’s case (supra) are also applicable in the facts and circumstances of the present case. The doctrine of constructive liability does not apply in cases of free fight. In a free fight there is no right of private defence to either side and each individual is responsible for his own act. There is no constructive or vicarious liability for the act of another. 50. In the matter of Kanbi Nanji Virji v. State of Gujarat, (1970) 3 SCC 103 the Hon’ble Supreme Court has observed that once the conclusion is drawn 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 can be held guilty for the injuries caused by them. 51. In the matter of Bachan Singh Vs. State of Punjab, 1993 Supp (2) SCC 490 it has been held that survey of the evidence leaves an impression that there was a free fight between the two groups, in which both the parties sustained injuries and each accused will be liable for their individual act attributed to the particular accused. 52. PW-2 Govinda Chouhan, PW-7 Anil Markam and PW-17 Vishal Chouhan are injured witnesses initially medically examined by PW-21 Doctor Kalpana who referred them to neuron surgery department and orthopedic department. PW-22 Doctor Gajendra medically examined the injured Govinda and found fracture of left ulna bone and also found incised injury on left arm and right thigh. While examining injured Vishal Chandel and found fracture of left shaft radius bone and also examined injured Anil Markam who found swelling and pain on right forearm and lacerated wound on left forearm. From perusal of the document Ex.-D/4 36 and D/5 it appears that from the accused side Pinki and Jagmohan have also received injuries and they have also been treated by the doctor and thus, this Court is of the considered opinion that except the appellant Hukumant and Sunny Markam other appellants namely, Jagmohan Markam @ Bhundi, Bablu Markam, Amit @ Umit, Dodaran @ Manish, Dhanraj Dewar, Kanha @ Karan and Lalu @ Awadh and Sajid @ Sagir are responsible for causing grievous hurt to the victim Govinda and Vishal and they are liable to be convicted for the offence under Section 325 of the IPC. 53. In view of the foregoing discussion the appeal filed by the appellants Hukumat Dewar and Sunny Markam are partly allowed and their conviction under section 302/149 have been set aside and instead thereof they have been convicted for the offence under Section 304 Part I of the IPC and sentenced to R.I. for 10 years with fine of Rs.20,000/-, in default of payment of fine, further R.I. for 6 months. 54. The conviction and sentence for the offence under Section 325 read with Section 149 of the IPC against appellant Hukumat and Sunny Markam are also modified and they are held guilty for the offence under Section 325 of the IPC and sentenced R.I. for 2 years with fine of Rs.2000/-, in default of of payment of fine further R.I. for 1 month. Since this Court has considered that there was free fight between the parties and there was no unlawful assembly the appellant Hukumat Dewar and Sunny Markam have been acquitted from the offence under Section 147, 148 of the IPC and their sentence awarded for the offence under Section 147, 148 of the IPC are also set aside. 37 55. So far as the other accused persons Jagmohan Markam, @ Bhundi, Babalu Markam, Amit @ Umit, Dodaran @ Manish, Dhanraj Dewar, Kanha @ Karan and Laalu @ Awadh and Shajid @ Sagid are concerned their conviction for the offence under Section 302 read with Section 149 of the PC, 147 and 148 of the IPC are hereby set aside and they are acquitted from that offences. Their conviction under Section 325/149 of the IPC are modified and they are convicted for the offence under Section 325 of the IPC for voluntarily causing grievous hurt to injured Vishal and Govinda and they are sentenced R.I. for 2 years with fine of Rs.2000/-, in default of payment of fine, further R.I. for 1 month to each of these appellants. All the sentences are directed to run concurrently. The fine imposed which has already been paid, if any, by the appellants shall be adjusted towards fine amount awarded by this Court. 56. Appellants Hukumat Dewar and Sunny Markam are reported to be in jail since 11-05-2018. They are entitled for set off of their undergone period during trial as well as during appeal. 57. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants Hukumat Dewar and Sunny Markam are undergoing their jail sentences to serve the same on these appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 58. The other accused persons/appellants are reported to be on bail and they have been reported to be served out the entire sentence as 38 awarded by this Court, therefore, they are not required to surrender. 59. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellants who are convicted under Section 325 of the IPC by this Court and who are on bail during pendency of their appeal are directed to furnish a personal bond each for a sum of Rs.25,000/- with one surety each in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 60. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Aadil
Arguments
: Mr. Manish Sharma, Advocate (in CRA No.805/2018) --- Respondents Ms. Indira Tripathi, Advocate (in CRA No.806/2018 and ACQA No.671/2019) Mr. N.Naha Roy, Advocate (in CRA No.1413/2018) For State For private Respondents : Mr. Shashank Thakur, Deputy Advocate General. Mr. Siddhant Das,Advocate. (in ACQA No.671/2019) Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ravindra Kumar Agrawal, J. 27-01-2025 1. At the outset, learned counsel for the appellants in ACQA No.671/2019 submits that she does not want to press ACQA No.671/2019 and prays to withdraw the same. 2. 3. Accordingly, ACQA No. 671/2019 is dismissed as withdrawn. This three criminal appeals are arising out of the same sessions trial and the common judgment, therefore, they are being heard and decided 6 together. 4. All these criminal appeals are arising out of the impugned judgment of conviction and sentence dated 11-05-2018 passed by the learned Second Additional Judge to the Court of First Additional Sessions Judge, Raipur in Sessions Trial No.46/2014 whereby the appellants/accused persons have been convicted and sentenced in the following manner with a direction to run all the jail sentences concurrently :- Conviction Sentence U/s 302 read with Section 149 R.I. for life and fine of Rs.20,000/-, in default of of the IPC payment of fine further R.I. for one year U/s 325 read with Section 149 R.I. for 2 years and fine of Rs.2,000/-, in default of of the IPC payment of fine, further R.I. for 2 months, U/s 148 of the IPC R.I. for 1 year and fine of Rs.1,000/-, in default of payment of fine, further R.I. for 1 month, U/s 147 of the IPC R.I. for 6 months and fine of Rs.500/-, in default of payment of fine, further R.I. for 15 days. 5. The brief facts of the case, are that on 16-10-2013 at about 21:35 hours the complainant Lata Chouhan lodged a report Ex.-P/49 to the police against accused persons Hukumat, Fallu, Jagmohan @ Bhundi, Babalu, Sanny, Vijay, Shajid, Shivdatt, Lalu, Dodaran @ Manish, Shadilal, Dhanraj, Golu, Kanha, Mukesh, Ajay, Aashu, Pappan, Lochan and others with the allegation that on 15-10-2013 there was a public feast (bhandara) on the occasion of Goddess Durga emersion for which one Sindhi of Telibandha had donated two bags of rice which were utilized in the said bhandara. On 16-10-2013 the above named accused persons came to their vicinity armed with lathi, danda and rod and started assaulting her 7 son Govind, son-in-law Biraju @ Bakra and Vishal by rod and danda by saying that they have grabbed the two bags of rice which were donated to their committee. By their assault Govind and Biraju received injuries on their head and Vishal had received injuries on his leg. The incident was witnessed by Renu, Jyoti and other persons of the vicinity. On the report made by Lata Chouhan, police has registered the FIR (Ex.-P/49) for the offence under Section 147, 148, 149 and 307 of the IPC against aforesaid accused persons. Vishal Chandel was taken to B.R. Ambedkar Hospital, Raipur where he was medically examined by PW-22 Doctor Gajendra who after his medical examination and X-ray examination gave report Ex.- P/40. During his examination he found swelling and tenderness on left arm and active movement of wrist and finger was restricted. On being X- ray he found fracture of left shaft wrist bone. Anil Markam was also taken to B.R. Ambedkar Hospital Raipur and he too has been medically examined by PW-22 Doctor Gajendra and found the following injuries:- (i) tenderness with swelling present over proximal forearm, active movement of wrist and finger was restricted, (ii) lacerated wound over left forearm disability on medial side 6-7 cm. first corpo-metacarpal joint, muscle deep, mild contaminated, activities of left writs was restricted. After his primary treatment he was discharged from the hospital and his MLC report is Ex.-P/45. 6. The victim Govinda was also taken to B.R. Ambedkar Hospital, Raipur and he too has been medically examined by PW-22 Gajendra who found the following injuries on his body:- 8 (I) lacerated wound over left arm laterally, mild oozing of blood, mild contamination present, (ii) lacerated wound over left thigh laterally, mild oozing of blood, mild contamination present over left proximal leg, (iii) left radial activities movement of left wrist and finger restricted, radial act palpable. On his X-ray examination left shaft of ulna bone was found fractured and his MLC report is Ex.-P/44. 7. The injured Biraju Markam was also taken to B.R. Ambedkar Hospital, Raipur who has been medically examined by doctor Kalpana (PW-2). At the time when Biraju was brought before her, she examined him and found that he was unconscious, not responding to any command and he was having gasping. She immediately referred him to Department of Neuron Surgery for further management and her MLC report ie Ex.-P/37. The death intimation was given to her on 16-10-2013 itself which is Ex.-P/38 and she sent the dead body of deceased Biraju to mortuary. She sent the death intimation of deceased Biraju Markam to Moudahhapara police station at 2:15 a.m. which is Ex.-P/39. 8. The injured Vishal was brought before her and he too was referred to Department of Neuron Surgery for further treatment and her referral memo is ex.-P/40. Likewise injured Govinda and Anil were also brought before her for treatment and she referred both these injured persons to Department of Neuron Surgery vide memo Ex.-P/41 and P/42. 9. On the death intimation memo Ex.-P/39, Moudahapara police 9 station has recorded unnumbered merg Ex.-P/33. Inquest of the dead body of the deceased was prepared in presence of the witnesses on 17- 10-2013 which is Ex.-P/29 and the body was sent for its postmortem to Pandit Jawahar Lal Nehru Medical College Raipur where PW-18 Doctor S.K. Bagh had conducted the postmortem of the dead body of the deceased and found following injuries on the dead body:- (i) contused lacerated wound on vertex 10 cm. long in irregular cut surface, (ii) CLW (contused lacerated wound) present on right parietal region just obliquely placed, 5 cm. X 1 cm., (iii) ecchymosis present on occipital region 10 x 6 cm. (iv) fracture of frontal bone and coronal suture loosened was also open, (v) massive subdural hemorrhage present at frontal and occipital region defused overall, (vi) lacerate wound present on left elbow, (vii) fracture of piece of skull interior and postral crinical fosa retro part of both temporal. The doctor has opined that the death was due to hemorrhage and shock as result of head injuries and their complications, duration of injury within 24 hours prior to death and the death of the deceased was homicidal in nature. The postmortem report is Ex.-P/37 given by PW-18 doctor S.K. Bagh. On 17-10-2013 the accused Umit @ Amil Markam was also taken 10 into custody and his memorandum statement Ex.-P/5 was recorded. Accused Sunny Markam was also taken into custody. On 17-10-2013 accused Umit @ Amit Markam, Sunny Markam, Mukesh Markam and Hukumat Dewar and Dodaru (Dodaran) @ Manish were arrested and their memorandum statement were recorded which are Ex.-P/5, P/6, P/7, P/8 and P/9 respectively. On the basis of memorandum statement of accuse Umit @ Amit one bamboo club was seized from him vide seizure memo Ex.-P/10. One bamboo club was seized vide Ex.-P/11 from Sunny Markam. From Dodaran on bamboo club has been seized vide seizure memo Ex.-P/12. From Hukumat Dewar one crowbar has been seized vide seizure memo Ex.-P/13 and from Mukesh Markam one iron pipe was seized vide seizure memo Ex.-P/14.From injured Vishal Chouhan one full shirt has been seized vide seizure memo Ex.-P/31. Blood stain and plain soil were seized from the spot vide seizure memo Ex.-P/32. Spot map Ex.-P/34 was prepared by the Patwari and Ex.-P/63 was prepared by the police. The clothes of the deceased, blood stained and plain soil, crowbar seized from accused Humukat Sahu and pipe seized from accused Mukesh Markam were sent for its chemical examination to State FSL Raipur from where report has been received and according to the FSL report, except in the plain soil, blood found on the other sent articles and the T-shirt and pant of the deceased were found to be stained with human blood, whereas the blood stains of other articles were disintegrated and their character could not be examined. The crowbar and iron pipe was sent for its query report to PW-21 Doctor Kalpana who after its examination gave query report Ex.-P/43 and opined that the injuries found 11 on the body of the deceased could have been caused by the said weapons. 10. The statement of witnesses under Section 161 of the Cr.P.C. have been recorded and after completion of usual investigation charge sheet was filed for the offence under Section 147, 148, 149, 307 and 302 of the IPC against 25 accused persons, out of which 16 were arrested, two persons were juvenile in conflict with law and 7 accused persons were absconding. The case was committed to the Court of learned Sessions Judge, Raipur, from where the same was transferred to the learned trial Court for its trial. 11. Out of 16 arrested accused persons, accused No.5 Mukesh Markam @ Fullu S/o Jagmohan Markam has died before framing of charge and against whom the case was abated. The learned trial Court has framed charges against the accused persons namely, Kaliya @ Mahasangram, Rajkamal Dewar, Amit @ Umit, Sunny Markam, Hukumat Dewar, Vinod Dewar, Punnu Dewar, Punarad Dewar, Jagmohan Markam, Dodaran @ Manish, Itwari Ram Yadav, Jitendra, Shadilal Sahu, Sajid @ Shagid, Dhanraj Dewar, Vijay Markam, Bablu Markam, Kanha @ Karan, Ajay, Lochan and Lalu @ Awadh for the offence under Secdtion 147, 148, 307 read with Section 149 and 302 read with Section 149 of the IPC. The accused persons denied the charge and claimed trial. 12. In order to prove the charge against the accused persons the prosecution has examined 27 witnesses. The statement of the accused 12 person under Section 313 of the Cr.P.C. have also been recorded in which they denied the circumstances appearing against them, pleaded innocence and have submitted that they have falsely been implicated in the offence. The accused persons have relied upon 5 documents Ex.D/1 to Ex.-D/5 in their defence. 13. After appreciation of the oral as well as documentary evidence led by the parties, the learned trial Court has acquitted accused Rajkamal Dewar, Vinod Dewar, Punnu Dewar, Punarad Dewar, Itwariram Yadav, Jitendra, Ajay and Lochan from all the offences, whereas, the other accused persons have been convicted and sentenced as mentioned in the earlier part of this judgment. Hence, this appeal. 14. In the present case, there are total 25 accused persons out of which 2 were juvenile in conflict with law. Out of 23 accused persons, 16 were arrested at the time of filing of charge sheet and 6 accused persons were arrested after filing of the charge sheet and it appears that one accused Shivdatt S/o Dhanraj Sahu is still absconding. Out of these 22 accused persons one accused Mukesh Markam; @ Fullu has died before framing of charge, therefore, the trial of total 21 accused persons were conducted, out of which 8 accused persons have been acquitted and 13 accused persons have been convicted by the learned trial Court. 15. Out of 13 accused persons accused Sunny Markam, Jagmohan Markam, Vijay Markam and Babalu Markam have filed their appeal as CRA No.805/2018 and during pendency of this appeal appellant No.3 Vijay Markam S/o Jagmohan @ Bhundi Markam has died on 29-03-2024 and the appeal of Vijay Markam has been abated vide order dated 21-08- 13 2024 and thus, in CRA No.805/2018 three appellants Sunny Markam, Jagmohan @ Bhundi Markam and Babalu Markam are remaining. 16. CRA No.806/2018 has been filed by appellants Kaliya @ Mahasangram, Amit @ Umit, Hukumat, Dodaran @ Manish, Shadilal Sahu, Dhanraj Dewar, Kanha @ Karan and Lalu @ Awadh, in which appellant No.1 Kaliya @ Mahasangram and appellant No.5 Shadilal Sahu has died during pendency of the appeal and their appeal has been abated vide order dated 27-01-2025 and therefore, 6 other accused persons remaining in CRA No.806/2018. However, CRA No.1413/2018 has been filed by accused Sajid @ Shagid Chouhan. 17. Mr. Manish Sharma, learned counsel for the appellants in CRA No.805/2018 would submit that the prosecution has failed to prove its case beyond reasonable doubt. The involvement of the appellants are doubtful as the evidence of the witnesses are inconsistent. The number of injuries found on the body of the victims/deceased are not corroborated with the persons against whom the conviction has been made. From the appellants no incriminating articles have been seized. He would further submit that the learned trial court has failed to appreciate that on the basis of report of Mukesh Markam a counter FIR was registered against the complainant party for the offence punishable under Section 147, 148, 149, 307 of the IPC and they have also faced their trial. Although they have been acquitted in that sessions trial, but the facts remains that there was quarrel between two groups in which it is very difficult to identify the person of assailants. By taking advantage of the situation, names of the present appellants have also been included as assailants in the present 14 case. The witnesses have made exaggerated evidence before the Court which cannot be made basis for conviction of the appellants. In absence of any cogent and clinching evidence, the appellants are entitled for benefit of doubt and by allowing their appeal they may be acquitted from the alleged offences. 18. Ms. Indira Tripathi, learned counsel for the appellants in CRA No.806/2018 would submit that the prosecution could not brought any clinching evidence on record to establish the involvement of the appellants in offence in question. She would also submit that the injuries found on the body of the deceased as well as the number of persons allegedly involved in the offence are not corroborated each other. Had it been a case that all the accused persons assaulted the deceased or injured persons more number of injuries would have been found on the body of deceased or the injured persons. The appellants were not armed with any deadly weapons. It was quarrel between two groups and in a heat of passion, there was no premeditation and no motive has been proved against the present appellants to commit offence. The credibility of the witnesses are under shadow of doubt as they are not consistent in their evidence and therefore, by giving benefit of doubt the appellants may be be acquitted. 19. Mr. N.Naha Roy, learned counsel for appellant in CRA No.1413/2018 by adopting the arguments advanced by learned counsel for other appellants would submit that there is no seizure of any weapon of offence or any incriminating article or even no blood stained clothes have been seized from this appellant. Even no weapon of any offence has 15 been seized from him to connect him with the offence in question. A general and omnibus allegations have been made against him that he also assaulted the deceased as well as the injured persons. There is no animosity of the present appellant with the complainant party and only on the suspicion he has been made accused in the case. There are material contradiction in the evidence of the prosecution witnesses and their evidence are exaggerated with that of their 161 Cr.P.C. statement. There was a counter case against the complainant party on the same incident and therefore, it is proved that it was a quarrel between 2 groups in which the assault was made by both the parties to each other. The quarrel was not premeditated and it was occurred on spur of movement. Therefore, by giving benefit of doubt the present appellant may also be acquitted. 20. Per contra, learned counsel for the State vehemently opposed the submissions made by learned counsel for the respective appellants and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions and contradictions the evidence of prosecution witnesses are fully reliable. The injured witnesses have duly supported the prosecution’s case upon which the conviction of the appellants is based. Although a counter case was also registered against the complainant party, but they have been acquitted from their offences which further proves that the present appellants were aggressors in commission of the offence. The appellants formed unlawful assembly and in their common object to commit murder of deceased Biraju assaulted him by lathi, danda and iron pipe. The other injured persons have also been assaulted by the accused persons which duly 16 proved their intention to commit the offence. It is not necessary that every member of unlawful assembly would play a specific role in assaulting the deceased or the injured persons. Presence of the accused persons in the unlawful assembly armed with weapons is sufficient to hold them guilty for the alleged offence of commission of murder of Biraju taking aid of Section 147, 148 and 149 of the IPC. Even if the number of injuries is not corelated with the number of accused person that itself would not make the prosecution’s case doubtful. The weapon of offence have been seized from some of the accused persons and in the query report the doctor has clearly opined that the injuries found on the body of the deceased could have been caused by the said weapon. The injured witnesses have duly identified the accused persons and they have been named in the FIR, therefore, there is sufficient cogent and clinching evidence against the appellants in the case and their respective appeals do not have any merits and are liable to be dismissed. 21. We have heard learned counsel for the respective parties and perused the record of the case with utmost circumspection. 22. With respect to the homicidal death of the deceased the injured witnesses PW-2 Govinda Chandel and PW-17 Vishal Chandel hav deposed that on the date of incident the appellants have given Crowbar (Sabbal), Pipe and Lathi blow on the deceased by which he received injuries on his body and he died due to the injuries. The witnesses to the inquest (Ex.-P/29) PW-10 Naresh Chouhan, PW-19 Ghanshyam @ Bittu and PW-23 Golu Markam have supported the injuries on the body of the decease and his death due to injuries. 17 23. PW-18 Doctor S.K. Bagh has stated in his depostiotion that on 17- 10-2013 he conducted postmortem of the dead body of deceased Biraju Markam @ Thhillu and found numbers of injuries on the head of the deceased including contusions, lacerated wound and fracture of base of skull interior and posterior cranial fosa. The head injury is sufficient to cause death in ordinary course of nature, death was due to hemorrhage and shock as a result of head injury and their complications, the death was homicidal in nature. In his cross-examination though this witness has been given suggestion that the injuries found on the head of the deceased may be caused by dashed by failing on ground, but he denied the same. The defence could not extract any material from this witness which makes his evidence doubtful that death of the deceased was not homicidal and by any other reason. The injuries have been found on the body of the deceased was also proved by PW-21 Doctor Kalpana, who medically examined the victim Biraju Markam and referred him for neuro surgery department. PW-26 Doctor Umashankar Patel who also medically examined the victim Biraju Markam and given him medical treatment stated that he was in gasping condition and was having numerous injuries on his head, chest and abdomen and leg. He was in very serious condition and about to die and he last his breath on 11:00 p.m. He proved his medical report Ex.-P/60 and P/38. He also proved injuries found on the body of the deceased, thus, the death of the deceased being homicidal in nature has been proved by the prosecution. 24. So far as involvement of the appellants in crime in question is concerned, the prosecution has proved the involvement of the appellants 18 in the offence in question by the evidence of injured eye-witnesses PW-2 Govinda Chouhan Chandel, PW-7 Anil Markam and PW-17 Vishal Chouhan. 25. PW-2 Govinda Chouhan has stated in his evidence that deceased Biraju @ Bakra was his brother-in-law. On 16-10-2013 at about 08:00 p.m. when he was standing near his house, his sister came to him, but she was crying and informed that Hukumat, Fallu and his friends were assaulting his brother-in-law. When he went to the spot the accused persons started assaulting him also. The appellant Hukumat was having crow bar, Sunny was having lathi and Fallu was having rod in their hands, their other friends Babalu, Bhundi, Dodaru, Manish and another Manish, Lalu and 2-3 others were assaulting deceased Biraju on all parts of his body. Accused Dodaran, Bhundi, Lalu and Sagid were also assaulting his brother-in-law and when he intervened they started assaulting him. His brother Vishal has also gone with him to intervene in the dispute and the accused persons also assaulted his brother Vishal and he too has received injuries on his body. After some time police came there and then the accused persons fled away from the place. Deceased Biraju was taken to Mekahara hospital and he too was taken to hospital where he was informed that Biraju has died. He further stated that Biraju was assaulted on the allegation that he grabbed two bags of rice which was obtained by them at the time Goddess Durga immersion. In cross- examination he admitted that they were having cordial relation with the accused persons. He also admitted that a counter case was also lodged against him and other witnesses for the same incident and counter case 19 is pending before Court. He also admitted that with respect to the incident they have not lodged any report from their side. He further stated that when his sister informed him about the incident and he had gone to the place of incident he saw that 10-12 persons were assaulting each other and when he tried to intervene he too has been assaulted. He has got unconscious on the spot. He admitted that on the spot, on the way to hospital and also till his discharge from the hospital he neither lodged any report nor disclosed about the incident to anyone. He voluntarily stated that he was not able to speak at that time. When he was discharged from the hospital the police persons sent them in jail. He further admitted that he is not having any knowledge as to why his brother-in-law was assaulted by the accused persons. He also admitted that he did not disclose before the police that appellant Hukumat was having crowbar, Sunny was having lathi and Fallu was having rod in his hand and they along with other accused persons, Babalu, Bhundi, Dodaran, Manish, another Manish, Lalu along with 2-3 were assaulting his brother-in-law Biraju. He further stated that police has not recorded his statement, he did not disclose in his statement to the police. 26. PW-7 Anil Markam is another eye-witness to the incident and has stated that the deceased Biraju @ Bakra is his elder brother. On the date of incident Renu was crying that her brother-in-law was being assaulted and immediately thereafter, Vishal and Govinda rushed to the place of incident and then he too followed them. On the spot he saw that accused persons were assaulting his brother Biraju by rod, crowbar and lathi and also by stone. He along with Govinda and Vishal tried to intervene in the 20 quarrel and therefore, the accused persons have assaulted them also. He received injuries on his chest, and hand. Biraju was being assaulted by Hukumat by crowbar or pipe and others have also assaulted him. When he asked to stop them he too was assaulted by the accused persons. When police came there they fled away. He informed the incident to police and he disclosed the names of the persons who assaulted his brother. The offence has been registered against them and they were sent to jail. During treatment Biraju has died. In cross-examination he stated that he disclosed the names of all the accused persons who assaulted the deceased and it is not that he disclosed only the names of 2-3 persons. In police station the police has shown him 10-11 persons and he disclosed the names of all the accused persons who have assaulted the deceased. He further stated that he disclosed the names of 10 to 15 accused persons and police has written it in the paper and obtained his signature. He admitted in his evidence that in his first statement he disclosed only names of 3-4 persons and they are the relatives of Hukumat, and Dodaran. He further admitted that in his first police statement he has not disclosed the names of any person. He also admitted that against the accused persons the case of rioting and attempt to murder is pending before the trial Court. In his further cross-examination he admitted that before rioting, on the place of incident marpeet has already started and on what issue the marpeet was started he did not know. He admitted that accused persons are family members of Jagmohan, Mukesh and Pinki. Though this witness has deviated from his police statement Ex.-D/2 that Renu has come by crying that her brother-in-law was being assaulted and 21 when he went on the spot along with other witnesses he saw that accused persons were assaulting his brother Biraju by crowbar, lathi and rod, but from perusal of his police statement Ex.-D/2 the details of the incident was disclosed by this witness and thus, no benefit can be extended to the appellants from this part of the evidence of PW-7. 27. Another eye-witness to the incident is PW-17 Vishal Chouhan who stated in his evidence that he knew the accused persons and the deceased also. On the date of incident Rani and Reu reached towards them by shouting that Biraju was being assaulted and to save him. She also crying that , Mukesh, Hukumat, Lalu, Shadilal, Dhanraj, Kaliya, Shivdatt, Baban and Manish were assaulting the deceased Biraju, when they gone to place of incident and were trying to stop the quarrel and convince the accused persons the accused persons started assaulting them also. They were assaulting the deceased by crowbar, pipe, lathi and rod. His brother-in-law was being assaulted by Hukumat and Amit by crowbar on his neck by which he fell down. After some time police came there. He received injuries on his head by assault made by the accused persons and he was also admitted in the hospital for his treatment. Biraju was also taken to hospital where he died during treatment. The leading question was asked from him, he denied by giving his police statement Ex.-P/36 that the incident was occurred on the issue of grabbing two bags of rice which was given to the committee at the time of Goddess Durga immersion. In cross-examination he admitted that prior to the incident there was no dispute between the complainant party and the accused party and their relation was cordial. They are also facing trial of the 22 counter case. He stated in his cross-examination that he disclosed before police about the names of assailants to the deceased, but he did not know as to whether police has written the names of assailants or not. He was admitted in the hospital for whole of night and on the next day he was sent to jail. He further admitted that on 17-10-2013 the police has not recorded his statement and if any statement is annexed in the case allegedly recorded on 17-10-2013 then it is not of his statement. He did not disclose before the police that when they tried to intervene they too have been assaulted by the accused persons. He also admitted that what weapon the accused persons were having he could not see and even he has not disclosed before the police that the deceased was being assaulted by Hukumat and Amit by crowbar. He denied the suggestion given by defence that he has not seen any incident and the deceased died due to assault made by them. 28. PW-3 Smt. Reena Jogi is also eye-witness to the incident who stated in her evidence that at the time of incident she had gone to grocery shop to purchase grocery item, at that time Biraju @ Bakra came there. At the same moment some altercation took place between deceased Biraju @ Bakra and accused persons Hukumat, Vijay, Babalu, Lalu and Sagid have made allegation upon Biraju that he grabbed two bags of rice which was for Goddess Durga emersion. At that time Sunny came there and gave a lathi blow on the head of the deceased Biraju and thereafter Hukmat, Lalu, Sagid, Babalu, Fallu @ Mukesh and other accused persons assaulted deceased Biraju by rod, crowbar and danda. Then, she started shouting and another girl Meetu reached to the house of Biraju 23 and informed his family members. Immediately thereafter wife of Biraju and his mother-in-law came there and asked for help. At the same time Govinda and Vishal were also came in rescue of the deceased, but these two persons Govinda and Vishal were also assaulted by the accused persons. The persons of the vicinity gathered and the police also came there. During treatment Biraju has died in the hospital. In cross- examination she stated that the police has not recorded her statement on 25-10-2013 and if in her police statement date of 25-10-2013 is mentioned it is not her statement. She also admitted counter case against the complainant party. She did not know as to whether Mukesh has lodged any report at P.S. Telibandha or not. Her husband had called Ambulance and the injured persons have gone to hospital by the said ambulance. Lata has lodged report to the police. She admitted that prior to the report lodged by Lata, another report has already been lodged by her husband and others. She further stated that in her police statement Ex.-D/1 she disclosed that there was altercation between deceased Biraju and accused persons Hukumat, Vijay, Babalu, Lalu and Sagid and if it is not there in her police statement, she could not tell the reason. She further stated that she also disclosed assault made by accused persons to the deceased, but if it is not there in her police statement Ex.-D/1 she could not tell the reason. She further admitted that at the time of incident 3-4 persons were present near the place of incident. Though, from the cross-examination of this witness she stated that she has given details of incident in her police statement Ex.-D/1 and defence could not extract from her evidence that she made statement to the police, but if it is not 24 there she could not tell the reason, but in her 161 Cr.P.C. statement Ex.- D/1, she stated about the incident and witnessed the same, though not in exact same fashion, but she specifically stated in her 161 Cr.P.C. statement Ex.-D/1 about the assault made by accused persons upon the deceased. 29. PW-4 Rani Markam has also claimed to be eye-witness and stated in her evidence that deceased is her husband. At about 8 p.m. he returned back from his work and had gone to the shop of Dhannu to bring certain snacks for children. When he could not return after 5 minutes, she along with Renu about to proceed towards shop of Dhannu and at that time they heard noise of quarrel coming from the place of incident and Meetu was coming from the place of icident by shouting that Biraju was being assaulted by other persons. When she had gone to the place of incident she saw that Hukumat, Umit, Kanha, Babalu and Lalu along with Rajru, Fulli @ Jagmohan were assaulting her husband by crowbar, rod, stick and lathi and when she tried to intervene Kanha has pushed her. When the other persons have tried to intervene they have assaulted Govinda, Anil and Vishal. Hukumat has assaulted her husband on his head and other part of body also and other accused persons have also assaulted him. After the assault accused persons fled away from the place. By the incident her husband, Vishal, Govinda and Anil received grievous injuries on their body and after 5-10 minutes police came there. When the leading question was asked, she disclosed the names of Kaliya @ Mahasangram, Rajkamal, Umit, Fullu @ Mukesh, Jagmohan @ Bhundi, Godharan @ Manish, Itwari, Manish Dewar, Shivdatt, Babalu, 25 Kanha, Pappan and Lochan as assailants. In cross-examination she stated that on the spot police has not made any enquiry from her. On the next day of the incident, police came to her house and recorded her statement. After about a week the police called her at P.S. and again recorded her statement in which police has obtained her signature. She admitted that accused Shagid is her real brtoher, but he was not involved in the offence. She has not disclosed name of Shagid as assailant. She also has not disclosed the name of Vinod Dewar, Punarad, Jitendra, Vijay, Golu and Ajay. Although, she too have deviated from her police statement Ex.-D/2 that she has not disclosed in her police statement that accused persons were assaulted the deceased and the manner in which the incident was occurred, but from perusal of her police statement Ex.-P/2 it reflects that she is the eye-witness to the incident and disclosed the entire incident to the police which has been written in her police statement Ex.- P/2. She admitted in her evidence that her husband has disclosed to her that he was having property dispute and disclosed the names with whom the dispute was going on. She further admitted that she disclosed in her police statement the names of those persons with whom her husband was having property dispute. 30. PW-5 Meetu Gopal, is another eye-witness to the incident, has stated in her evidence that on the date of incident she had gone to the shop of Dhannu to purchase grocery item, at that time accused Hukumat, Fallu, Babalu, Lalu and many other persons started assaulting deceased Biraju. Sunny was having iron pipe, Fallu was having crowbar by which they started assaulting him and they assaulted him evenafter he fell down 26 on the ground. He called his wife Rani and Renu, when she tried to intervene, Shagid has slapped her and thereafter she started shouting. On hearing her noise, her mother Annu and thereafter Anil, Govinda and Vishal came and the accused persons assulted them also. When leading question was asked she disclosed that at the time of incident Kaliya @ Mahasangram, Umit @ Amit, Fallu @ Mukesh, Jagmohan @ Bhundi, Dodaran @ Manish, Babalu, Manish, Vijay, Shivdatt, Shagid, Pappan and Lochan have assaulted the deceased. In cross-examination she stated that the police has recorded her statement, but has not taken her signature. On the date of 17 police has recorded her second statement in which her signature was obtained, but on 25-10-2013 police has not recorded her statement and if any statement is shown to be recorded on 25-10-2013 it is not her statement. She admitted that at the time of incident she was not having knowledge of the name of the accused persons except Lalu and Dodaran. She further admitted that she disclosed the name of other accused persons on the basis of information given by Govt. Pleader. 31. PW-6 Dhanraj Chouthwani is shop owner in front of whose shop the incident occurred, but he has not supported the prosecution case and stated that when the quarrel started between 30-40 persons, he closed his shop and went to his house, he did not know about the incident. 32. PW-8 Renu Kulhariya who is another eye-witness to the incident, has stated in her evidence that the deceased was her brother-in-law. At the time of incident the deceased had gone to the shop of Dhanraj to bring certain snacks. After some time she heard noise and saw the crowd 27 there. When they went to the place of the incident they saw that Dodaran @ Manish, Hukumat, Shivdatt, Vijay and Fallu were assaulting her brother-in-law. Hukumat was having iron rod, Dodaran was having iron rod, Shivdatt was having pipe and Sunny was having iron weapon and they were assaulting deceased Biraju on his head. She rushed to her house and informed Govinda that Hukumat, and others are assaulting her brother-in-law. When Vishal, Anil and Govinda came to the place of incident they too have been assaulted by the accused persons. At that time police came and the accused persons fled away. They along with other persons of the vicinity took the injured persons to the hospital and after some time during treatment Biraju has died. In cross-examination she admitted that she has not disclosed about the incident to the police upto next morning. The police has taken injured Anil to police station and she also accompanied him. Anil was sent to jail. She stated in her cross- examination that she has not given any statement to the police after about 2 months and 6 days of the incident and if any statement of her annexed in the case it is not her statement. She had not disclosed the names of Vinod, Punnu and Punarad in her police statement. Although certain discrepancies have also been asked from this witness with that of her police statement Ex.-D/3, but from conjoint reading of her cross- examination as well as police statement Ex.-D/3, she duly proved the involvement of the accused persons in the incident. 33. PW-9 is the witness of memorandum and seizure and has not supported the prosecution case, but has admitted his signature over the memorandum and seizures Ex.-P/5 to Ex.-P/27. 28 34. PW-10 Naresh Chouhan, PW-11 Khanna Kulhariya, PW-12 Rajesh Yadav are formal witnesses. Nothing comes in their evidence. 35. PW-13 Niranjan Yadav is wardboy who has taken hospital memo from Mekahara hospital to Moudahapara police station, Raipur, which is Ex.-P/33. 36. PW-14 Chhotu Markam is a witness of inquest Ex.-P/29. 37. PW-15 Nomeshwar Verma is a Patwari who prepared the spot memo Ex.-P/34. 38. PW-16 Hemant Gilhare is a Constable who has taken the clothes of the deceased and viscera to Police Station Telibandha. 39. PW-21 Doctor Kalpana has medically examined victim Biraju Markam and injured Vishal, Govinda Chandel and Anil Markam. She stated in her evidence that on 16-1-2013 she medically examined Vishal Chandel and referred him to neuron surgery department and her medical report is Ex.-P/40. Govinda Chandel and Anil have also been medically examined by her and they were also sent to neuro surgery department and their reports are Ex.-P/41 and 42 respectively. She also given the query report of crowbar and steel pipe and gave report Ex.-P/43. Nothing has been asked from the accused persons with respect to the report of the victim Vishal, Govinda and Anil. 40. PW-22 Doctor Gajendra has treated injured Vishal Chandel and found that he received fracture on his left shaft radius, he fixed plaster on his left hand and proved his report Ex.-P/40. He further stated that on the same day he also treated injured Govinda and found incised wound on 29 his left arm, incised wound on his left thigh, abrasion on his left knee and found fracture of left ulna bone. He also fixed plaster on his left hand and gave report Ex.-P/44. He has also treated Anil Markam and found swelling with pain on his right forearm, he also noticed lacerated wound on his left forearm and after primary treatment he discharged him and gave report Ex.-P/45. In cross-examination he admitted that the fracture received by Vishal and Govinda could have been caused by falling on hard surface. 41. PW-24 R.S. Netam and PW-26 L.R. Thakur are the police authorities who conducted investigation in the case. 42. PW-25 has admitted in his cross-examination that on the date of incident itself, on the report lodged by Mukesh Markam, the FIR of Crime No.489/13 for the offence under Section 147, 148, 149 and 307 of the IPC have been registered against the accused persons Suklal, Ramesh, Vishal, Iqbal, Kunal, Suraj, Govinda, Shehnaz, Naresh, Avinash, Anil, Biraju @ Bakra, Beenu, Kochi, Neelu, Navin, Lala, Ghanti, Kurul, Shiv and others which was counter report of Ex.-P/49. He proved the part of investigation which he done on his part. 43. PW-27 Rakesh Baghel is Deputy Superintendent of Police and Investigating Officer of the case and he proved whatever he has done during investigation of the case. 44. From the above stated facts it can be seen that the occurrence took place on 16-10-2013 at about 20:15 hours, during which the deceased Biraju @ Bakra Markam on the side of the prosecution party died and PW-17 Vishal, PW-2 Govinda and PW-7 Anil Markam received several 30 injuries and from the accused persons’ side Pinki, daughter of Jagmohan and Jagmohan received several injuries. The main question arises for consideration was that as to who were aggressors because a counter FIR against the complainant party have been registered on the same day for the offence under Section 147, 148, 149 and 307 of the IPC vide Crime No.489/2013 at the same police station against the complainant party. Each party tried to throw blame on other. It comes from the document Ex.- D/4 and D/5 which are the MLC reports of Pinki and Jagmohan, but the prosecution did not explain as to how these two persons on the side of accused persons have received injuries. Though the allegation leveled by prosecution witnesses are against the accused persons that they have started quarrel with the deceased and assaulted him, but the fact remains that the offence under Section 147, 148 and 149, 307 of the IPC was also registered vide Crime No.489/2013 against 20 accused persons including the deceased Biraju @ Bakra who are from the complainant party in the present case and taking into consideration the facts and surrounding circumstances where both the parties collected into groups with the determination to fight. In such a situation who started fight is not very material. A free fight can be a fight between two groups of variously armed persons to prove their point right or others’ wrong by sheer exhibition of criminal force. A person armed with a weapon and has no fixed person to be targeted it is all among the adversary who have to be attacked and defeated. Sharing the common object always envisages pre-determination of committing the very offence. In a free fight, there is no common object; there is no pre-concerned sharing of minds, and the 31 acts follow accordingly. In a case of free fight of such nature, the assailants should be liable for their individual acts and it may be unsafe to convict all of them by applying Section 149 of the IPC for the offence of murder. In the version given by the prosecution witnesses in the present case appellant Hukumat and Markam are the main assailants as far as attacking on the deceased Biraju @ Bakra Markam, who said to be assaulted the deceased by iron rod and crowbar on head of the deceased and by the injuries received by the deceased on his head he died. Therefore, we are of the opinion that it is unsafe to convict every appellants except Hukumat and Sunny Markam for the offence for causing death of deceased Biraju. However, their presence on the spot cannot be doubted. 45. From the aforesaid discussion, it emerges that there was free fight during which both the parties, appellants and the deceased and some others received injuries and both the parties have lodged their separate reports. There are two lacerated wound on the head of the deceased, one lacerated wound on left elbow and one contusion on right shoulder. There remains only lacerated wound on the head which resulted in fracture of frontal and both temporal bone. From the evidence laid by the prosecution it reveals that appellant Hukumat and Markam have given crowbar and iron rod blow on the deceased. There is general statement made by the witnesses that they also used to assault the deceased, but from the nature of evidence available in the case, there was free fight between two groups. A free fight is one where both of side mean to fight from the start, go out to fight and there is a pitched battle. The question of who attacks 32 and who defends in such event is wholly immaterial and depends upon the tactics adopted by rival parties. The dimension of injuries and size thereof cannot in facts and circumstances be called to be calculated or targeted while being caused by the assailants. In a free fight there is movement of body of the victim and the assailants who are those participants or expected participants in cross assault on the other side, in such a situation it cannot conclusively be held that appellant Hukumat and Markam caused injuries to the deceased knowingly to achieve that objective. We would thus in the circumstances hold them guilty for offence under Section 304 Part I of the IPC. 46. Now, so far as other accused person are concerned, they have been named in the FIR (Ex.-P/49) lodged by Lata Chouhan. Witness PW- 2 Govinda has stated in para 17 of his deposition that since the police has not recorded his statement, therefore, he has not disclosed to the police that all the accused persons were assaulting the deceased and when he tried to intervene he too was assaulted by them. 47. So far as free fight is concerned, the Hon’ble Supreme Court has held in Gajanand Vs. State of U.P., AIR 1954 SC 695 that "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". In para 5 of the said judgment the Hon’ble Supreme Court has held that:- “5. ……… A free fight according to Harrison J. in – ‘Anmad Sher v. Emperor’, AIR 1931 Lah 513 (A), is 33 “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.” There can be no question of a free fight in the present case, as there is a clear finding of the High Court that Anjaninandan’s party were aggressors. Having regard to the finding reached by the High Court that the riot took place at the narrow path as a result of the dispute about the Nepali pilgrim and the further fact that Gajanand’s party received more numerous injuries one of which was fatal, it is obvious that Gajanand’s party cannot be said to have constituted an unlawful assembly. Gajanand’s party was engaged in the peaceful pursuit of worship at their own takhat and was busy attending to the Puja for the Nepali pilgrim. It is not suggested that at that point of time they were members of an unlawful assembly. There is no material to justify the conclusion that they became members of the unlawful assembly at any time thereafter. It was the party of Anjaninandan who left their place and came to Gajanand’s takhat, presumably raising a dispute over the offerings made by the Nepali pilgrim. They came armed with deadly weapons and one of them inflicted a sever blow on Sukku which resulted in his death and other received as many as 27 serious injuries. In these circumstances it is not possible 34 to suggest that both parties were pre-determined for a trial of strength and had a free fight. Gajanand’s party were the worst suffered and though they also inflicted injuries on the other side, they did so in the exercise of their right of self-defence. Learned counsel for the State was unable to point to any material on the record to show that Gajanand’s party which was lawful in its inception became unlawful afterwards and we hold, therefore, that the conviction and sentence of Gajanand and his associates cannot be sustained under Section 147 and Sections 324/149 and 323/149, IPC. These appellants had been acquitted by the Session Judge but were convicted by the High Court on appeal by the State. We are of opinion that this was hardly a case for interference with the order of acquittal.” 48. Availability of right of private defence and effect of non-explanation of injuries of the accused persons in the case has been discussed by the Hon’ble Supreme Court in the matter of Jumman and Ors. Vs The State of Punjab, AIR 1957 SC 469 in which it has been held by the Hon’ble Supreme Court that in such a case where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, it will not be correct to assume private defence