RAGHUBIR SINGHversusSTATE OF RAJASTHAN AND ORS.

                    [2011) 10 S.C.R. 739


                     RAGHUBIR SINGH                               A
                               v.
            STATE OF RAJASTHAN AND ORS.
            (Criminal Appeal Nos.82-83 of 2005)
                     AUGUST 29, 2011
                                                                  B
 [HARJIT SINGH BEDI AND GYAN SUDHA MISRA, JJ.]

     Penal Code, 1860: s. 302 - Murder on account of dispute
'Jver land - Dispute was as to who was in possession of land,
the complainant party or the accused - On fateful day, c
complainant party started ploughing the said land - Accused
party also reaching there and started ploughing - Fight
ensued - Injuries sustained by both th~ sides - Accused 'K'
attacked victim with weapon which resulted in his death -
Other accused also attacked complainant party- Trial Court o
convicted 7 of the 9 accused including 'K' u/ss.302, 3021149,
307, 3071149 - High Court modified_ conviction of 'K' to s.304
Part II - Conviction of three other accused modified to s.324
and another accused to s.325 respectively- On appeal, held:
Injury suffered by victim was attributed by the witnesses to E
accused 'K' - Medical evidence proved that the said injury
was by the weapon used by accused 'K' and the extent and
gravity of the injury showed that accused 'K' had the intention
to cause death of the victim - Evidence also showed that the
said injury was sufficient to cause death in the normal course F
of nature - Injuries attributed to the other three accused were
simple in nature and cannot be said to have been the cause
of death - Therefore, accused 'K' held guilty under s.302 for
having caused the murder of the victim and the judgment of
the trial court to that limited extent restored - Appeals of other
accused dismissed.                                                 G

     Criminal Jaw: Explanation of injuries sustained by the-
accused - Held: Each and every injury on an accused is not
required to be explained and more particularly where all the
                            739                              H
    740    SUPREME COURT REPORTS                [2011] 10 S.C.R.


A injuries caused to the accused are simple in nature - The
  facts of the case have to be assessed on the nature of
  probabilities - In the instant case, the injuries on the accused
  were not explained as the prosecution witness did not utter a
  single word as to how they had been suffered by them - In
8 this view of the matter, the defence can legitimately raise a
  suspicion that the genesis of the incident was shrouded in
  mystery - Undoubtedly, there were a large number of injured
  witnesses, some of them grievously hurt, to support the
  prosecution case, but in the instant case, this fact by itself
C cannot preclude the accused from claiming that no case was
  made out against them.

        Appeal against acquittal: Acquittal by High Court -
  Scope of interference u/Article 136 - Held: If view taken by
  High Court was plausible or possible, it would not be proper
D for the Supreme Court to interfere with an order of acquittal -
  Various circumstances when Supreme Court would interfere
  with the judgment of the High Court enumerated - Constitution
  of India, 1950 - Article 136.

E      The prosecution case was that the land on which
  incident took place was mortgaged to the appellant-PW-
  1 several years prior to the date of incident. On the fateful
  day, PW-1 along with the victim-deceased and others
  were ploughing the land when one of the accused
  reached that place on two tractors and also started
F ploughing the same land. PW-1 protested at this on which
  the accused attempted to run him over with their tractors.
  In the meanwhile, the other accused persons armed with
  farsis, lathis, tanchias, dantis attacked them and ran over
  victim with their tractors and when PW-1 attempted to
G intervene, he was also given blows with their weapons.
  The trial court convicted 7 of the 9 accused under
  sections 302, 3021149, 307, 307/149 IPC.

       The convict accused filed appeals before the High
    Court. The appellant-PW-1 filed revision against the
  RAGHUBIR SINGH v. STATE OF RAJASTHAN AND               741
                     ORS.

acquittal of the two accused. The High Court held that the      A
land on which the incident took place belonged to the
Forest Department and was adjacent to the fields of the
accused and 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. It further      B
held 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 on which a
free fight ensued and persons from both the sides
received injuries. The High Court concluded that in that        c
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. Accordingly the conviction of the accused were
modified. Conviction of accused 'K' under sections 302,         0
302/149, 307, 307/149 IPC was set aside instead he was
convicted under Section 304 Part II, IPC. Conviction of 'A',
'S, 'M' under Sections 302, 302/149, 307, 307/149 IPC was
set aside, however their conviction under Section 324,
IPC was confirmed. Conviction of 'Ka' under sections
                                                                E
302, 302/149, 307, 307/149 IPC was set aside, however his
conviction under Section 325 IPC was confirmed. Appeal
of 'R' was allowed and he was acquitted. One of the
accused 'RK' died during pendency of appeal and
proceeding against him was dropped. The instant
appeals were filed by the State as well as by PW-1.             F

    Allowing the appeals, the Court
     HELD: 1. If the view taken by the High Court was
plausible or possible, it would not be proper for the           G
Supreme Court to interfere with an order of acquittal. The
Supreme Court would interfere with the judgment of the
High Court in the circumstances when (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   H
   742     SUPREME COURT REPORTS             [2011] 10 S.C.R.


A conclusion are contrary to evidence and documents on
  record; (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
B on erroneous law and facts on the record of the case; (v)
  The Supreme Court must always give proper weight and
  consideration to the findings of the High Court.(vi) The
  Supreme Court would be extremely reluctant in
  interfering with a case when both the Sessions Court and
c the High Court have recorded an order of acquittal. These
  circumstances are however illustrative and not
  exhaustive: The interference with the order of the High
  Court has to be based on these parameters. In the instant
  case, the injuries on the accused were not explained as
0 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
E proceeding. It is true that each and every injury on an
  accused is not required to be explained and more
  particularly where all the injuries caused to the accused
  are simple in nature (as in the instant case) and the facts
  of the case have to be assessed on the nature of
  probabilities. The injuries in the instant case were
F required to be explained as there was a serious dispute
  as to the possession of the land in which the incident had
  happened, more particularly as PW-1 himself was
  uncertain as to the nature of the possession as per the
  statements on record and the Patwari had also warned
G the complainant party not to trespass into the land.
  Undoubtedly, there were 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
H possession, this fact by itself cannot preclude the
 RAGHUBIR SINGH v. STATE OF RAJASTHAN AND              743
                    ORS.
accused from claiming that no case was made out A
against them. PW-3, one of the injured witnesses, had
admitted in his cross examination that the quarrel took
place suddenly and that the rival groups were both
saying that they would sow the land. This statement was
al~o supported by the evidence o( PW-17, the B
investigating officer, who also admitted that as per the
Patwari, the fight had taken place on the land possessed
freshly and belonging to one 'G' and 'D' and that the land
was under the possession of the complainant party. This
statement was at variance with the evidence of the other C
witness particularly PW-1 as he state_d that they had been
in possession of the land in question for almost 20 years.
There was also a doubt as to the site of the incident. The
dead body and the cultivator were recovered from the
house of PW-1. PW-17 admitted that no blood stained
earth was lifted from the site. In the light of the facts, it D
would be seen that the observations of the High Court
that both sides had come to do battle appeared to be
justified as this was an assessment on an appreciation
of the evidence which cannot be said to be palpably
wrong so as to invite the intervention of this Court. The E
observation in *Gajanand's case 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. [Para 5) [750-E-H; 751-A-H; 753-A-H; F
753-A]

    Gajanand & Ors. vs. State of U.P. 'AIR 1954 SC 695 -
relied on.

    Bhanwar Singh & Ors. vs. State of M. P. (2008) 16 SCC     G
657: 2008 (15) SCR 879 - held inapplicable.

    State of U.P. vs. Banne (2009) 4 SCC 271 - referred to.

    2. The injury with the cultivator was injury No.1 which   H
    744     SUPREME COURT REPORTS              [2011] 10 S.C.R.

A was the fatal injury and was attributed by the witnesses
  to accused 'K'. The contention that the story that the
  cultivator had first been lifted and then dropped on the
  victim could not be believed as PW-1 did not mention this
  fact in his evidence although the other witnesses had
8 done so and as such, this story was improbable. Even
  assuming, however, that the cultivator had not been lifted
  and then dropped yet injury No.1 had been caused with
  a cultivator was clear from the medical evidence ~nd the
  extent and gravity of the injury showed that accused 'K'
C had the intention to cause death of the vi.::tim. It was 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 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
D the instant case is that of a free fight, accused 'A', 'M' and
  'RK' must be made responsible for their respective
  injuries. 'RK', however died while the matter was in the
  High Court. Therefore, in so far as accused 'K' is
  concerned, his conviction under Section 304 Part II of the
E IPC even on the findings recorded by the High Court was
  erroneous. Accused 'K' is held guilty under Section 302
  of the IPC for having caused the murder of the victim and
  the judgment of the trial court to that limited extent is
  restored. In so far the other accused were concerned, the
F order of the High Court is not interfered with. [Para 6)
  [753-H-; 754-A-F]
                        Case Law Reference:
          AIR 1954 SC 695     relied on            Para 4, 5
G
          2008 (15) SCR 879   held inapplicable    Para 4, 5
          (2009) 4 sec 211    referred to          Para 4
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
H No. 82-83 of 2005.
 RAGHUBIR SINGH v STATE OF RAJASTHAN AND                     745
                   ORS.

    From the Judgment & Order dated 10.09.2003 of the High          A
Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B.
Criminal Appeal No. 796of1998 and D.B. Cr. Revision Petition
No. 188 of 1999.
                                WITH
                                                                    B
Crl. Appeal No. 778 of ·2005.

     Dr. Manish Sighvi, AAG, Anitha Shenoy, Rashmi
Nandakumar, Ansar Ahmad Chaudhary, Vibha Datta Makhija,
Lima Datta, Vljay Verma, Milind Kumar, Aruneshwar Gupta for
the appearing parties.                                              C

    The Judgment of the Court was delivered by

     HARJIT SINGH BEDI, J. 1. This judgment will dispose
of Criminal Appeal Nos. 82-83 and 778 of 2005. The facts have       D
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         E
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    F
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          G
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 Chhote~ Lal, Lallu, Rajendra and Munshi sustained
serious injuries. Raghuveer Singh thereafter went to the Police     H
    746      SUPREME COURT REPORTS                (2011) 10 S.C.R.


A    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/
B    149. The prosecution in support of its case relied on the
    evidence of 17 witnesses in all, the primary witnesses 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
c   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
D   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
E   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 and Taiyab. The 7 accused
F   who had been convicted by the trial court challenged their
    conviction by filing DB Criminal Appeal No. 796 of 1998
    wh~reas 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
G   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
H   Department and was adjacent to the fields of accused Mauj
 RAGHUBIR SINGH v. STATE OF RAJASTHAN AND                      747
        ORS. [HARJIT SINGH BEDI, J.]
Khan and Rahmat and that the complainant party had, on the            A
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 proteston which        B
a free fight had ensued and persons from both sides had
received injuries on which an FIR had 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        c
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
                                                                      0
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      E
              · 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.
                                                                      F
      (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.         G
               Conviction of appellant Kallu under Section.
               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   H
     748          SUPREME COURT REPORTS                   (2011] 10 S.C.R.


A                   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
8
                    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
c                   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.
D
            (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
E                   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)    0.8.Criminal Revision No.188/1999 being devoid
F                   of merit stands dismissed.

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

G          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 situation
      the present set of appeals has been filed by the State as well
      as by PW-1 Raghuveer Singh.
H          4. We have heard Dr. Manish SinQhvi, the learned
 RAGHUBIR SINGH v. STATE OF RAJASTHAN AND                    749
        ORS. [HARJIT SINGH BEDI, J.]

Additional Advocate General for the State of Rajasthan, Ms.         A
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          B
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         c
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 ofU.P. AIR 1954 SC 695 and BhanwarSingh & Ors.
vs. State of M.P. (2008) 16 sec 657 and in the light of the         D
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
                                                                    E
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      F
should not be made. In this connection, the learned counsel has
relied on State of UP. 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            G
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 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     H
    750          SUPREME COURT REPORTS               [2011) 10 S.C.R


A 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
B 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
c 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-
0
  17 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.

E        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
F   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
G
          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
H
 RAGHUBIR SINGH v. STATE OF RAJASTHAN AND                     751
        ORS. [HARJIT SINGH BEDI, J.]

              erroneous view of law by ignoring the settled legal     A
              position;

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

      (iii)   The entire approach of the High Court in dealing        B
              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        c
              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             D
              interfering with a case when both the Sessions
              Court a·nd the High Court have recorded an order
              of acquittal."

     A perusal of the aforesaid quote in a manner reduces the         E
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        F
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 explained and more particularly         G
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
                                                                      H
    752     SUPREME COURT REPORTS                  [2011] 10 S.C.R.

A   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, morP 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
B   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
c   from claiming that no case was made out against them. It has
    also to be noticed that PW-3 Chottey Lat, 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 they would sow the land. This plea is also
    supported by the evidence of PW-17 Samaydeen, the
0
    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
E   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
F   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 b0 en enumerated above, it would be seen that the
    observations of the High Court that both sides had come to do
G   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 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
H
 RAGHUBIR SINGH v. STATE OF RAJASTHAN AND                         753
        ORS. [HARJIT SINGH BEDI, J.]

and prepared to do battle must be applied in the present case             A
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.              8
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           C
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:               D

     "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.                                                                E

     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.
                                                                          F
     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.
                                                                          G
     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   H
    754     SUPREME COURT REPORTS                 [2011) 10 S.':'.R


A 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
B 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 death. It is also
c 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
0
  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
E 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.
F
        7. The fee of the Amicus Curiae is fixed at Rs.7,000/- in
    each appeal.

    D.G.                                         Appeals allowed.