JUDGMENT 1. - This appeal is directed against the judgment passed by the Additional Sessions Judge, Jalore dated 16-12-75 by which all the appellants were convicted for the offence under Section 147 I.P.C. and sentenced to six months rigorous imprisonment and a fine of Rs. 1000/-, in default to undergo three months rigorous imprisonment each. Appellant Harzi was also convicted for the offence under Section 304 Part II I P.C. and sentenced to four years rigorous imprisonment, and a fine of Rs. 2000/-, in default to undergo six months rigorous imprisonment Appellant Heera was also convicted for the offence under Section 304 Part II I.P.C. and sentenced to four years rigorous imprisonment and a fine of Rs. 1000/-, in default to undergo three months imprisonment. The remaining appellants were convicted for the offence under Section 304 read with Section 140 I.P.C. and sentenced to two years rigorous imprisonment and a fine of Rs. 1000/-, in default to undergo three months rigorous imprisonment each. Appellant Jasa, Sava and Raghunath were convicted for the offence under Section 323 I.P.C. and sentenced to six months rigorous imprisonment and a fine of Rs. 500/-, in default to undergo one month's rigorous imprisonment each. The substantive sentences awarded to the appellants were ordered to run concurrently. 2. Briefly stated the facts of the case giving rise to the appeal are as under: Deceased Narain Singh S/o Dharma was a witness in a case of theft of `Raida' belonging to Narainsingh S/o Gajajee Rajput, alleged to have been committed a year ago. That created annoyance to the accused as some of them were the suspects in that case. On 16-3-76 in the afternoon Khinvsingh and deceased Narainsingh s/o Dharma were going to Koyata from their village to have `Rijka'. Gulabsingh had also accompanied them When they reached in front the house of Lachhu Sunar, the nine appellants, armed with lathis, restrained them and gave them a beating. Harji and Heera caused injuries to Narainsingh deceased who fell down and succumbed to these injuries. Khinvsingh and Gulabsingh also sustained injuries at the hands of Raghunath, Jasa and Sava appellants. Khinvsingh lodged the information at police station Bhinmal. S H.O. Motilal went to the site and conducted necessary investigation. Postmortem examination of deceased Narainsingh was conducted that very day by P.W. 3 Dr. Suganchand Mathur, Medical Officer, P.H.C., Bhinmal. Khinvsingh and Gulabsingh also sustained injuries at the hands of Raghunath, Jasa and Sava appellants. Khinvsingh lodged the information at police station Bhinmal. S H.O. Motilal went to the site and conducted necessary investigation. Postmortem examination of deceased Narainsingh was conducted that very day by P.W. 3 Dr. Suganchand Mathur, Medical Officer, P.H.C., Bhinmal. On the same day the Doctor examined the injuries of Gulabsingh and Khinv Singh also. He also examined Raghunath, Harji and Heera appellants for their injuries. After arrear of the accused, in pursuance of the information furnished by them, lathis were recovered by the Investigating Officer. 3. After completion of necessary investigation, charge sheet under Sections 302,147,148,149 and 323 IPC was filed in the court of Judicial Magistrate, Bhinmal. The learned Magistrate committed the appellants to the court of Sessions, Jalore to stand their trial. The learned trial Judge chargesheeted Heera and Harji for the offences under Sections 302, 147,148 and 323/149 I.P.C. and the remaining appellants for the offences under Sections 323, 302/149, 147 and 148 IPC. When their plea was recorded, all the appellants denied the indictments and claimed to be tried. Prosecution examined 11 witnesses in all. The appellants in their statements under Section 313, Cr. P.C. denied the allegations levelled against them. Heera Heerji, Sava and Raghunath stated, that, when they were sitting on the platform outside the chabutra, Heera and Narainsingh deceased alongwith Khinvsingh, Gulabsingh, Hanuwatsingh and Narain Singh S/o Gajajee attacked them and then the victim in order to save themselves got up and ran away. Khima, Gulabsingh and deceased Narain Singh caused injuries to Heera, Harji and Raghunath. That, Sava was sent to report the matter at police station Bhinmal. Tikma, Jasa, Chena, Jeta and Java pleaded alibi and stated that they were at their respective walls. 4. The learned trial Judge did not consider the defence plea of right of private defence plausible and held Heera and Harji responsible for the fatal injuries of Narainsingh. The offence however was not held to fall within the ambit of Section 300 IPC rather it was considered to be an offence under Section 304 Part II IPC. Raghunath was held liable for the injuries of Khinvsingh. and Jesa and Sava for the injuries of Gulab Siagh. The offence however was not held to fall within the ambit of Section 300 IPC rather it was considered to be an offence under Section 304 Part II IPC. Raghunath was held liable for the injuries of Khinvsingh. and Jesa and Sava for the injuries of Gulab Siagh. It was held that all the accused armed with lathis formed an unlawful assembly and therefore the remaining appellants were held responsible for the act of Heera and Harji with the aid of Section 149 IPC. With these findings, the learned Judge passed the Judgment under appeal. 5. I heard Mr. M.S. Singhvi, learned counsel for the appellants and Mr. M.C. Bhati, learned Public Prosecutor for the State and carefully examined the record of the case. 6. The learned counsel for the appellants has assailed the findings of the learned trial Judge on a number of grounds. His first contention is that it was not been proved that the appellants formed any unlawful assembly, because there were only four injuries caused to Narainsingh deceased attributed to Harji and Heera, two simple injuries to Gulabsingh attributed to Jasa and Sava and three simple injuries to Khinvsingh attributed to Raghunath. According to the learned counsel, if nine persons armed with lathis would have formed an unlawful assembly with an object to kill or cause injuries to Narainsingh the number and the nature of the injuries would not have been like that. According to the learned counsel, there is no evidence to suggest that the appellants, either actively participated in the affence or there was any common object which they shared and therefore the ingredients of an unlawful assembly are not made out. In order to substantiate his contention. Mr. Singhvi placed reliance to the principle enunciated in the case of Prabhakar Shanker Sawant and others v. State of Maharashtra, AIR 1979 SC 1205 . In view of the facts and circumstances of that case their lordships were pleased to observe that, before the accused could be convicted for sharing of the common object of the assembly or of being the members of the same at a time when the assembly became unlawful, it had to be proved by the prosecution that the accused were members of the unlawful assembly at the time when the assembly became unlawful and started pelting stones. Active participation of the members of the unlawful assembly or the evidence that they shared the common object of the unlawful assembly was also emphasised. While making these observations their Lordships were also pleased to hold as under : "It is not necessary that the accused should be guilty of any overt act. It is sufficient if it is shown that as a participant of the unlawful assembly he was sharing the common object of the same." 7. Keeping this principle in mind when the evidence in the case in hand is looked into, it is evident that Khinvsingh and Gulabsingh, the injured in the incident, whose presence for that reason cannot be disputed, have categorically stated that all the nine appellants armed with lathis had attacked Narainsingh and when these two witnesses tried to rescue him, they were also injured by the assailants. Because there was specific allegation against Raghunath, Jesa and Sava for the injuries caused to these witnesses, they alone were held to have actively participated in the crime. But that does not in any way exonerate them from the offence of being members of unlawful assembly. The reason for these persons attempting to cause injuries to Narainsingh deceased was his being a witness in a theft case in which the accused were the suspects. As the record shows Tikma and Java were of course not accused in that case of theft but the contention of the learned Public Prosecutor is that they also had hatched enmity against Narainsingh deceased, witness in that case, because Java happens to be the brother of Chena and Tikma. the brother of Sava Be it as it may, there is the evidence of the two injured supported by the evidence of independent witness Khushalsingh (PW 9). Hanwat Singh (PW 8) has also supported the prosecution case regarding the appellants armed with lathis, being there at the site. He was of course cross-examined by the Public Prosecutor with the permission of the court because he did not support the prosecution case regarding the individual acts of the assailants. So far as the actual participation in the crime is concerned, the two injured Khinvsingh and Gulabsingh & witness Khushalsingh have deposed that Harji and Heera were responsible for the injuries of deceased Narainsingh, Raghunathsingh for the injuries of Khinvsingh and Jasa and Sava for the injuries of Gulabsingh. So far as the actual participation in the crime is concerned, the two injured Khinvsingh and Gulabsingh & witness Khushalsingh have deposed that Harji and Heera were responsible for the injuries of deceased Narainsingh, Raghunathsingh for the injuries of Khinvsingh and Jasa and Sava for the injuries of Gulabsingh. The learned counsel could not point out any infirmity or inconsistency in the statements of these witnesses so far as the presence of the nine appellants at the time of the occurrence and five of them actually participating in the crime is concerned. 8. The main point raised by the learned counsel for the appellants to show the innocence of the appellants is, that, statements of Heera, Harji, Raghunath and Sava regarding the deceased and Khinvsingh and Gulabsingh causing injuries to first three of them have been corroborated by the medical evidence and, therefore, even if any appellant has done anything, it was in exercise of right of private defence. 9. Mr. Singhvi, referred to the case of Lakshmi Singh and others v. State of Bihar, AIR 1976 SC 2263 wherein their Lordships have been pleased to laydown as to what inference may be drawn on account of non-explanation of the injuries sustained by the accused. It has been observed that, in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. Their Lordships were also pleased to hold that omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. 10. Dr. Suganchand Mathur (PW 3) had examined Harji on 17-3-76 and noted two lacerated wounds and two abrasions on his person. On the next day he examined Heera appellant and noted one abrasion on the posterior expilary line and multiple abrasions on the fore-arm. On 17-3-76. the Doctor has also examined Raghunath appellant and noted two Bruises on his person. The nature, dimension and part of the bodies on which these simple injuries were noted by the Doctor do not bring the case in the category where failure to explain the injuries may prove fatal to the prosecution. On 17-3-76. the Doctor has also examined Raghunath appellant and noted two Bruises on his person. The nature, dimension and part of the bodies on which these simple injuries were noted by the Doctor do not bring the case in the category where failure to explain the injuries may prove fatal to the prosecution. In the Supreme Court case just referred to above, their Lordships have also been pleased to enunciate the following principle. "There may be cases where the non.explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the Prosecution to explain the injuries." 11. This is not a case in which injured alone are the witnesses for the prosecution. Khushalsingh (P W. 9) who was present near the site of occurrence and rushed near the deceased immediately, and fully supported the prosecution case and from his evidence also it cannot be inferred that the origin of the quarrel is not at the prosecution alleges. There is no evidence or material to infer that the occurrence had not taken place at the place where the dead body of Narainsingh was found by the investigating officer. Even if the defence version that the deceased Narainsingh, Khinvsingh, Gulabsingh and Narainsingh S/o Gajajee had gone in `Kabalion Ki Gali' where the house of Heera is, and attacked Heera, Harjj and Raghunath sitting at the platform outside the house of Heera, is taken to be true, still it does not show that the injuries sustained by Heera, Harji and Raghunath were caused to them at the time and place of the incident leading to the death of Narainsingh and injuries to Gulab Singh and Khinvsingh. In this view of the matter, the learned trial Judge, in my opinion, has rightly disbelieved the defence plea of right of private defence to person. 12. Learned counsel for the appellants next contended that as both the parties had sustained injuries it may be taken to be a case of freefight and no one can be held vicariously liable for the act of others. To strengthen his contention Mr. 12. Learned counsel for the appellants next contended that as both the parties had sustained injuries it may be taken to be a case of freefight and no one can be held vicariously liable for the act of others. To strengthen his contention Mr. Singhvi referred to the case of Kanbi Nanji Virji and others v. State of Gujarat, A.I.R 1970 S.C. 219 . In that case there was a melas at the time of the incident and the two groups indulged in a free fight resulting in injuries to persons of both groups and death of two and it was held that 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 caused injuries or death can be held guilty for the offence individually committed by them. 13. In the present case there is clear evidence of a ground of nine persons, having enmity with the deceased armed with lathis attacking and causing fatal injuries to him and simple injuries to his two rescuers. Thus the incident cannot be taken as a free fight so as to hold individual persons liable for their individual acts only. 14. The learned counsel then argued that the evidence on record does not prove that Heera was responsible for any fatal injuries so as to make him liable for conviction under Section 304 Part II I.P.C. 15. Khinvsingh, Gulabsingh and Khushalsingh have all stated about Harji causing injuries to Narainsingh on his ribs and chest. All these witnesses have categorically stated that Heera had caused injury on the head and knee of deceased Narainsingh. The learned trial Judge in view of the statement of Doctor Mathur has arrived at a conclusion that there was no head injury sustained by deceased Narainsingh. The learned trial Judge has also taken into consideration the omission of head injury of Narainsingh in the First Information Report. There is only one abrasion 1/2' x 1/2" on right knee pateller surface of Narainsingh, which injury has been attributed to accused Heera. In such circumstances the case of Heera does not fall within the ambit of Section 304 Part II simplicitor and he can be held responsible only for causing simple injury to Narainsingh and can be held guilty for the offence under Section 323 I P.C. only. In such circumstances the case of Heera does not fall within the ambit of Section 304 Part II simplicitor and he can be held responsible only for causing simple injury to Narainsingh and can be held guilty for the offence under Section 323 I P.C. only. So far as the conviction of the other accused is concerned it is in view of their being members of the unlawful assembly that they had been held liable for the act done by Harji and, therefore, no interference is required. 16. The learned counsel for the appellant submitted that as the case relates to the year 1976, the number and nature of the injuries sustained by Narainsingh do not show that he was mercilessly beaten, a lenient view may be taken and the appellants may not be sent behind the bars after a lapse of so many years. Mr. Singhvi referred to the case of Mohinder Pal Jolly v. State of Punjab, A.I.R. 1979 S.C. 577 wherein in view of the fact that occurrence had taken place about a decade prior to the matter reached to the Supreme Court and the accused was in jail for nine months as under trial and four months after conviction, it was observed that the accused had mentally and physically suffered all those years and the sentence of imprisonment was reduced to the period already undergone alongwith the sentence of fine. 17. The main accused in the present case is Harji. The injuries attributed to him are two bruises, scoling left 5th intercostal space anteriorly, when opened haemotoma present and the fracture of 5th rib which was responsible for the death. He had remained in custody so far for a period of one year, 6 months and 24 days and it would not be improper if his substantive sentence is reduced to that period. Other injury to the deceased an abrasion on the right knee is attributed to Hira who had remained in custody for 10 Months and 25 days. Out of remaining appellants Raghunath had remained in custody for 1 Month and 26 days. Sava for a similar period. Tikma, Jasa and Jeta for a period of 1 Month and 21 days. Chena for a period of 1 month and 22 days and Java for a period of 1 Month and 13 days. Out of remaining appellants Raghunath had remained in custody for 1 Month and 26 days. Sava for a similar period. Tikma, Jasa and Jeta for a period of 1 Month and 21 days. Chena for a period of 1 month and 22 days and Java for a period of 1 Month and 13 days. In view of the fact that none of the appellants except Harji and Heera had caused any injury to the deceased and have been held liable only vicariously, the ends of justice would meet if the substantive sentence awarded to them for the offence under Section 304 Part II I.P.C. is reduced to the period undergone. Similarly in view of the superficial injuries caused to Khinvsingh and Gulabsingh by Raghunath, Sava and Jesa, the sentence already suffered by these appellants would be sufficient so far as the substantive sentence is concerned. I am also of the opinion that for the offence under Section 147 I.P.C. the ends of justice would meet if the substantive sentence awarded to the appellants is reduced to the period undergone. The amount of fine also requires some consideration because it is quite heavy. 18. Consequently, the appeal is partly allowed. The conviction of appellant Heera for the offence under Section 304 Part II is altered to Section 323 I.P.C. He is sentenced to nine months rigorous imprisonment and a fine of Rs. 500/-, in default to undergo three months rigorous imprisonment. The substantive sentence he had already suffered. The substantive sentence of appellant Harji for the offence under Section 304 Part II IPC is reduced to the period he had remained in custody so far. The sentence of fine of Rs. 2000/-. in default to undergo six months rigorous imprisonment is however maintained. The substantive sentences awarded to Jasa, Sava and Raghunath for the offence under Section 323 IPC are reduced to the period undergone. Their sentence of fine of Rs. 500/- in default to undergo one month's rigorous imprisonment each are reduced to a fine of Rs. 200/- in default to undergo one month's rigorous imprisonment each. The substantive sentences of appellants Jasa, Sava, Raghunath, Tikma, Java and Jeta for the offences under Sections 304 read with Section 149 IPC are reduced to the period undergone The amount of fine of Rs. 1000/- each is reduced to Rs. 500/- each, in default to undergo three months rigorous imprisonment each. The substantive sentences of appellants Jasa, Sava, Raghunath, Tikma, Java and Jeta for the offences under Sections 304 read with Section 149 IPC are reduced to the period undergone The amount of fine of Rs. 1000/- each is reduced to Rs. 500/- each, in default to undergo three months rigorous imprisonment each. The substantive sentences awarded to all the appellants for the offence under Section 147 IPC are reduced to the period undergone. The amount of fine imposed for this offence is reduced to Rs. 200/- each, in default to undergo three months simple imprisonment each. The appellants are given three months time to deposit the amount of fine in the trial court.Appeal Partly Allowed. *******