JUDGMENT : S. Acharya, J. - The Petitioners stand convicted under Sections 147, 148 and 323, Indian Penal Code read with Section 149, Indian Penal Code, and they have been sentenced thereunder to undergo R.I. for six months on each count; The sentences to run concurrently. 2. It is an undisputed fact that there was some dissension between the parties due to certain caste matters and they were not pulling on (sic) with each other. The prosecution case, in short, is that on the date of occurrence the Petitioners wanted to hold Sankirtan in another village and they did not like to associate some of the prosecution witnesses in that Sankirtan Party. P.Ws. 1 and 2, therefore, opposed the use of the Mrudanga (M.O. V) and Gini (M.O. VI) belonging to the Sankirtan Party by the Petitioners in the said Sankirtan. Because of the above, a dispute arose between the parties and They decided to get the matter settled by The Brahmin gentlemen of the village. With that purpose p.ws. 1 and 2 went ahead to the Brahmin Sasan, and the Petitioners and one Ananda Malik. (since acquitted) went to their houses and thereafter came to The Brahmin Sasan armed with lathis and knives. There the Petitioners assaulted some of The prosecution witnesses with lathis in the specific manner as described in paragraph 4 of the impunged judgment. 3. The Petitioners denied 8011 the allegations and asserted that The informant, p.w. 1 and his partymen in fact assaulted the Petitioners and so in order to escape the consequences of such assault this false case has been foisted against them. 4. The Court below in a lengthy judgment acquitted one Anauda Malik of all the charges and upheld the conviction and sentences passed by the trial Court against the Petitioners on the above counts. 5. Mrs. Padhi, the learned Counsel for the Petitioners, at first contended that the Court below completely lost sight of The fact that even on the prosecution evidence a clear case of Acting in the exercise of the right of private defence of person was made out in favour of the Petitioners. This contention is without any substance and/or force. No such plea was taken either in the trial Court or in the Appellate Court. This contention is without any substance and/or force. No such plea was taken either in the trial Court or in the Appellate Court. The Court below on a very convincing and thorough reappraisal and proper sifting of the evidence on record arrived at the finding that both parties came to the Brahmin Sasan for settlement of their aforesaid dispute in an agitative mood, and before a Panchyat could be held both parties suddenly entered into a free fight as a result of which persons belonging to both parties sustained injuries in that incident. It is to be noted that the trial Court also found that there was a free fight between the parties at the place of occurrence. It is well settled that when two groups of persons engage themselves in a free fight in the circumstances as that of the present case, none from either of the parties can seek shelter under the plea of self defence. Therefore, on the above concurrent finding of fact that there was a free fight between the parties, with which finding I have no reason to disagree, the plea of self defence is not available to any of the Petitioners. Accordingly, the above contention of Mrs. Padhi fails. 6. Mrs. Padhi next contended that in view of the admitted facts that all the prosecution witnesses examined in this case were partisan witnesses and some disinterested persons who were admittedly present at or near about the place of occurrence, were not examined by the prosecution, the Court below should have discarded the case presented by the prosecution with suspicion, and on that score it should have acquitted the accused persons. There is no weight or substance even in this contention. The eye witnesses examined by the prosecution, no doubt, have been found by the Court below to be partisan witnesses. Some others named in the F.I.R. have not been examined by the prosecution. Only p.w. 1 stated that some of them were present during the occurrence. It has not been asked to p.w. 9, the 1.0. as to why and under what circumstances those other persons named in the F.I.R. could not be examined by the prosecution. It has not been elicited from the I.0. nor even suggested to him that these persons at the investigation stage did not support the prosecution case. It has not been asked to p.w. 9, the 1.0. as to why and under what circumstances those other persons named in the F.I.R. could not be examined by the prosecution. It has not been elicited from the I.0. nor even suggested to him that these persons at the investigation stage did not support the prosecution case. The Court below has considered this aspect of the matter, and arrived at the finding that the non examination of these persons is not fatal to the prosecution. The Court below finds from the papers available on record that those other persons named in The F.I.R. did not claim to be eye witnesses to the occurrence. That being so, even if they would have been examined, they would not have thrown any light in the case or unfolded any material part of the incident In any manner. In the case reported in Masalti Vs. State of U.P. their Lordships of the Supreme Court have observed that it is undoubtedly the duty of the prosecution to lay before the Court all material evidence available to it which is necessary for unfolding its case, but it would be unsound to lay down as a general rule that every witness must be examined even if it is known that he has been won over or terrorised. In such a case it is always open to the defence to examine such witness as their witness and the Court can also call such witness in the box in The interest of justice u/s 540, Code of Criminal Procedure. For reasons stated above it was not necessary for the Court in the present case to exercise its power u/s 540, Code of Criminal Procedure. It was of course left to the defence to examine those persons on their side if they considered their evidence to be helpful for their defence. On all the above considerations no adverse inference can be drawn for the non-examination of those persons by the prosecution. 7. Moreover, the prosecution case cannot be discarded merely because the prosecution examined only such witnesses who are found to be partisan witnesses. In the above mentioned decision their Lordships of the Supreme Court have observed that it is unreasonably to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witness. In the above mentioned decision their Lordships of the Supreme Court have observed that it is unreasonably to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witness. The following lines from the said decision may profitably be quoted: Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, Criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No bard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should he rejected because it is partisan cannot be accepted as correct. On the dictum laid down above, the prosecution evidence cannot be rejected merely on the sole ground that the same is partisan. No doubt the criminal Courts, in appreciating the evidence given by witnesses who are partisan or interested witnesses have to be very cautious and careful in weighing such evidence. The Court was cognizant of the above position and therefore it entered into a thorough and lengthy appreciation of the evidence on record, in order to find out as to who amongst the Petitioners Actually assaulted which particular person of the prosecution party. The Petitioners admit their own presence and the presence of the prosecution witnesses. On considering all the materials on record the Courts below on convincing discussion and consideration arrived at the findings that a free mutual fight between the parties suddenly took place in the Brahmin Sasan in which persons belonging to both the parties were injured. On all the above considerations I do not find any substance or weight in the above mentioned contention of Mrs. Padhi. 8. Mr. On all the above considerations I do not find any substance or weight in the above mentioned contention of Mrs. Padhi. 8. Mr. Patnaik, the learned Additional Government Advocate, very fairly and rightly concedes, on his own, that in view of the categorical finding of the Court below that a free mutual fight between the parties suddenly took place in the Brahmin Sasan, no common object, required under Sections 147, 148 and 149, Indian Penal Code, can be ascribed to the Petitioners and as such their conviction for the offence under Sections 147 and 148, Indian Penal Code and their conviction u/s 323, Indian Penal Code by taking recourse to Section 149, Indian Penal Code cannot be maintained, but on The proved fact that each of the Petitioners assaulted some members of the prosecution party in a particular manner, each of them 0 & 9 be separately held guilty and convicted u/s 323, Indian Penal Code. In this connection he referred to the decision reported in Kanbi Nanji Virji and Others Vs. The State of Gujarat has been held to the effect that where there was a Malee at the time of the incident and two groups of persons indulged in 80 free fight resulting in injuries to persons of both groups and death of two, and if the Court comes to the conclusion that the injuries sustained by the persons were in the course of a free fight, then only those persons who are proved to have accused injuries or death can tie held guilty for the offence individually committed by them a the same effect is the decision reported in Indian Statistical Institute Vs. Associated Builders and Others. On the finding of the Court below that both the parties suddenly indulged in a free fight resulting in injuries to persons of both the parties and on the basis of the above law on the subject as laid down by their Lordships of the Supreme Court, the conviotion of the Petitioners under Sections 147 and 148 and Section 323 read with Section 149, Indian Penal Code cannot be sustained. But & 8 very rightly submitted by Mr. But & 8 very rightly submitted by Mr. Patnaik, each of the Petitioners can be held individually guilty for the offence u/s 323, Indian Penal Code as such of them has assaulted and caused injuries on particular persons of the prosecution party in course of the said free fight, as specifically found by the Court below. 9. On the above discussions and considerations, the conviction and the sentences of the Petitioners under Sections 147 & 148, Indian Penal Code are hereby set aside. Their conviction and sentence u/s 323 read with Section 149, Indian Penal Code are also set aside, and instead they are each convicted u/s 323, Indian Penal Code. On the facts and circumstances of this case, the ends of justice would be served if, instead of a substantive sentence of imprisonment of the aforesaid offence, each of the Petitioners is sentenced to pay a fine of Rs. 100/- in default to undergo R.I. for one month each. The Petitioners are accordingly sentenced for their aforesaid conviction u/s 323, Indian Penal Code. 10. The revision is allowed to the extent mentioned above.