K. K. ADHIKARI, J. ( 1 ) THE judgment in this appeal shall also govern the disposal of Criminal Appeal No 949 of 1981 (The State of Madhya Pradesh v. Ashok Kumar and seven others ). ( 2 ) INITIALLY, eight accused were prosecuted for offences under Sections 147, 307, 307/149, 325 and 323 of the Indian Penal Code for an incident, as disclosed from the first information report Ex. P-1, at 1-15 A. M. on the 1st November, 1980, at a place called Chatti near Lakhnadon, on the National Highway, No. 7, commonly known as Nagpur-Jabalpur Road. It is alleged by the prosecution that the accused persons having formed an unlawful assembly and in prosecution of the common object, attempted to commit the murder of Raj Kumar (P. W. 2) or voluntarily caused grievous hurt to him and also voluntarily caused hurt to Ashot Kumar (P. W. 1) and Shankarlal (P. W. 3 ). It is not disputed that the accused persons are related to each others. It is also not in dispute that the accused Shiv Lal runs a hotel which adjoins the hotel of Shankarlal (P. W. 3) and across the Highway, opposite the hotel of Shankarlal (P. W. 3) is the hotel of Rajkumar (P. W. 2), who is the brother of Shankarlal (P. W. 3 ). Ashok Kumar (P. W. 1) is the nephew of Shankarlal (P. W. 3 ). ( 3 ) THE prosecution case, in brief, is that a little prior to the incident, Tamsingh (P. W. 8) had come to sell cart-load of firewood and sold the same to Raj Kumar (P. W. 2) While Tam Singh (P. W. 8) was unloading the firewood, a servant of the hotel of the accused persons came and called Tamsingh (P. W. 8), who, after unloading, went to the hotel of the accused Shivlal where the accused Tulsiram told him that since there was a balance of Rs. 5/- outstanding against him, Tamsingh (P. W. 8) should not have sold the firewood to Rajkumar (P. W. 2) before paying it. Tamsingh (P. W. 8) stated that he would pay the amount in the morning and in the event, accused Tulsiram requires firewood, he would sell another, cart-load to him. This led toaltercation, leading to the accused Tulsiram and the accused Sunil Kumar hurling abuses to Raj Kumar (P. W. 2 ). Tamsingh (P. W. 8) stated that he would pay the amount in the morning and in the event, accused Tulsiram requires firewood, he would sell another, cart-load to him. This led toaltercation, leading to the accused Tulsiram and the accused Sunil Kumar hurling abuses to Raj Kumar (P. W. 2 ). Since Ashok Kumar (P. W. 1) failed to pacify the accused Tulsiram and Sunil Kumar, this witness called Shankarlal (P. W. 3 ). The other accused persons also arrived in the meanwhile, which led to a fight between the accused persons and the complainants. It is further alleged by the prosecution that the accused Tulsiram had a wooden stick fitted with pointed iron while the accused Sunil Kumar had with him iron rod with Barchi on it. The accused Shivlal carried a lathi and the remaining accused persons, namely, Santosh, Arun Kumar, Ashok Kumar, Chandrakant and Tarachand had iron rods with them. It is further the case of the prosecution that these accused persons assembled in front of the hotel of Rajkumar (P. W. 2) and commenced assault on the complainants. The incident was witnessed by Goverdhan (P. W. 4) Nike (P. W. 5) Atahar (P. W. 6) and Ganaram (P. W. 7), apart from Ashok Kumar (P. W. 1), Rajkumar (P. W. 2), Shankarlal (P. W. 3) and Tamsingh (P. W. 8), who were actually involved in the incident. The report of the incident was lodged by Ashok Kumar (P. W. 1) who was accompanied by Shankarlal (P. W. 3) vide Ex. P-I, within half an hour of the incident at the Police Station Lakhnadon, which was recorded by S. B. Tiwari (P. W. 10), who proceeded to the spot of incident and effected yarious seizures of articles vide Exs. P. 8 p. 9 and p10 and also seized: (i) from the person of the accused Tulsiram a bush. shirt vide Ex. poll, (ii) from the person of the accused Chandrakant a bush-shirt vide Ex. P. 12, and arranged for the medical examination of the injured persons. ( 4 ) ASHOK Kumar (P. W. 1) was examined by Dr. R. C. Jam (P. W. 11 ). From the testimony of Dr. shirt vide Ex. poll, (ii) from the person of the accused Chandrakant a bush-shirt vide Ex. P. 12, and arranged for the medical examination of the injured persons. ( 4 ) ASHOK Kumar (P. W. 1) was examined by Dr. R. C. Jam (P. W. 11 ). From the testimony of Dr. R. C. Jam (P. W. 11), it is seen that Ashok Kumar (P. W. 1) had sustained the following injuries: (i) Incised wound I X 1/2 X bone deep on the left side of frontal region of scalp. (ii) Lacerated wound I X X with loss of nail on right little finger. (iii) Lacerated wound 1 1/2 1/2 X bone deep oblique on the right parietal region of scalp. (iv) Abrasion 11 1/2 X 1/2 on the left little finger. (v) Contusion 311 X 2 1/2 diffuse with suspected fracture albow left bone on the right elbow. According to his opinion, as seen from his testimony, all the injuries were simple in nature. The injury report of Ashok Kumar is Ex. p. 14, S. B. Tiwari (P. W. 10) seized from the person of Ashok Kumar (P. W. 1) a Baniyan, Full-pant and a Bush-shirt vide Ex. P-2. ( 5 ) DR. R. C. Jam (P. W.- 11) examined the injured Shankarlal (P. W. 3) and noted the following injuries: (i) Lacerated wound 1 x 1/2 bone deep longitudinal on the frontal region of scalp. (ii) Contusion 211 x 1/2 diffuse on the left fore-arm laterally. (iii) Contusion 21 x 21 diffuse on the right shoulder with suspected fracture of lateral 1/3rd of right clavicle. (iv) Abrasion 1 1/2 x on the right side of chest. (v) Contusion 1 1/2 x 1/2 diffuse on the left thigh anteriorly. (vi) Contusion 1 x 1 diffuse on the right thigh anteriorly. According to his opinion, as seen from his testimony, all the injuries sustained by Shankar lal (P. W. 3) were simple in nature. The injury report of Shankarlal (P. W. 3) in Ex. p. is. S. B. Tiwari (P. W. 10) seized a Baniyan from the person of Sbankarlal (P. W. 3) vide Ex. P. 4, and on his production, an iron rod vide Ex. P. S. ( 6 ) DR. The injury report of Shankarlal (P. W. 3) in Ex. p. is. S. B. Tiwari (P. W. 10) seized a Baniyan from the person of Sbankarlal (P. W. 3) vide Ex. P. 4, and on his production, an iron rod vide Ex. P. S. ( 6 ) DR. R. C. Jam (P. W. 11) also examined Rajkumar (P. W. 2) and it is seen from his testimony that he noted the following injuries: (i) Lacerated wound 2 1/4 x 1/2 bone deep. Shaped on the frontal region of scalp cozing from the wound present. (ii) Incised wound 1 1/2 x 1/2 x bone deep oblique on the right side of parietalregion of scalp. (iii) Lacerated wound 11 x 1 x skin deep on left parietal region of scalp. (iv) Contusion 3 1/2 x 21 diffuse on the left forearm and Dorsum of hand with suspected fracture shaft IV and V Metacorpal and forearm bone. (v) Contusion 2'1 x 1 1/2 on the right leg anteriorly middle 1/3rd. (vi) Abrasion 11 x 1/2 on the middle of left leg anteriorly. (vii) Abrasion 3' x i/8 oblique on the left iliac forsa of abdomen. (viii) Abrasion 2'1 x 1/81 on the left scapular region of back. (ix) Abrasion 1/2 on the left shoulder. (x) Abrasion 2x 1/2 on the right scapular region of back. (xi) Abrasion 1/2 x 1/2 on the right side of chest just medial to nipple. (xii) Abrasion 1 x 1/2 on the Ziphi sternum. According to his opinion, as seen from his testimony, the injuries Nos. I and 4 were grievous inasmuch as the injury No. 1 which was on the frontal region of the scalp could result in a permanent disfiguration/scar and the injury No. 4 had caused the fracture of shaft radius of the left hand vide Ex. p. 19. ( 7 ) IT would be advantageous at this stage to note that the acquitted accused Tarachand lodged a report vide Ex. D. 5-A, as is seen from para 20 of the testimony of S. B. Tiwari (P. W. 10 ). It is also seen that the accused Taracband sustained injuries in the same incident. Dr. R. C. Jam has been examined as a defence witness to prove the injuries sustained by the accused Tarachand. According to Dr. D. 5-A, as is seen from para 20 of the testimony of S. B. Tiwari (P. W. 10 ). It is also seen that the accused Taracband sustained injuries in the same incident. Dr. R. C. Jam has been examined as a defence witness to prove the injuries sustained by the accused Tarachand. According to Dr. R. C. Jam (D. W. 2), he noted the following injuries: (i) Lacerated wound 1 x 1 bone deep oblique on the left side of frontal region of scalp. (ii) Lacerated wound 1 1/2 x 1/2 bone deep on the right side of parietal region of scalp oblique. (iii) Contusion 2 1/2 x 2 diffuse and suspected fracture forearm bone on the left forearm. (iv) Contusion 1 x 1/2 diffuse on the right forearm posteriorly. In his opinion, the injury No. (iii) was grievous, which resulted in fracture of the shaft of left ulna. All other injuries were simple iii nature. Dr. R. C. Jam (D. W. 2) has also, on the basis of the medico-legal register, testified that the accused Tulsiram, Arun Kumar and Chandrakant were also medically examined by him though no injury reports have been produced in respect of these three accused persons. The injury report of the acquitted accused Tarachand is Ex. D-6-A. It is seen from the testimony of S. L. Dike (D. W. 1) that Shankarlal (P. W. 3), Ashok Kumar (P. W. 1), Rajkumar (P. W. 2) and one Rajesh Kumar were prosecuted for the same incident in a counter case registered- as Criminal Case No. 205 of 1981 (State v. Shankarlal and three others) for the offence under Section 325/34 of the Indian Penal Code. The certified copy of the report Ex. D-5-A has been tendered in evidence by S. L. Dike (D. W. 1 ). ( 8 ) AFTER due investigation, the accused persons were prosecuted. The accused persons in their defence during the trial denied the prosecution case. The certified copy of the report Ex. D-5-A has been tendered in evidence by S. L. Dike (D. W. 1 ). ( 8 ) AFTER due investigation, the accused persons were prosecuted. The accused persons in their defence during the trial denied the prosecution case. The accused Shivlal pleaded alibi while the rest of the accused persons submitted that when Tamsingh (P. W. 8) had unloaded the cart, they called him and told him that since he owned some money, why did he not give the firewood to them instead of selling it to Rajkumar (P. W. 2) upon which Rajkumar (P. W. 2) came with a firelog that was burning and abused them and inflicted a lathi blow on the back of the accused Tulsi Ram. It bas been also pleaded by the rest of the accused persons that Rajkumar (P. W. 2) hit the accused Tarachand by a lathi on his left hand while Rajkumar (P. W. 2) Shankarlal (P. W. 3) and Ashok Kumar (P. W. 1) came on the spot with iron rods to their hotel and commenced the marpit, thereby suggesting that the complainants were the aggressors and they acted in their right of private defence. ( 9 ) THE prosecution in support of its case relied on the testimony of the injured Ashok Kumar (P. W. 1) Rajkumar (P. W. 2) Sbankarlal (P. W. 3) and the other eyewitnesses namely, Govardhan (P. W. 4), Atahar (P. W. 6), Ganaram (P. W. 7), Tamsingh (P. W. 8), Nike (P. W. 5), another eyewitness, however, did -not support the prosecution during the trial. However, on evaluation of the prosecution evidence the learned trial Court acquitted all the accused of all the charges except the present appellants, who have been convicted under Section 323 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year against which the present appeal has been preferred. The State of Madhya pradesh has preferred appeal against acquittal against all the accused persons of the charges under Sections 147, 307, 307/149 and 325 of the Indian Penal Code. The State of Madhya pradesh has preferred appeal against acquittal against all the accused persons of the charges under Sections 147, 307, 307/149 and 325 of the Indian Penal Code. ( 10 ) THE acquittal of the accused persons for the offences under Sections 147, 307, 307/ 149 and 325 of the Indian Penal Code is based on the following findings recorded by the trial Court: (i) That the incident though has been deposed by the prosecution witnesses to have taken place in two stages, yet since both. the altercation between Raj Kumar (P. W. 2) and the accused Sunil Kumar Tulsiram and subsequent fight between the complainant party and the accused persons, having been taken place in close proximity, these two incidents formed party of the same transaction. (ii) That since injuries have been found on the persons belonging to the complainant party as well as on some of the accused, it was a case of mutual fight, particularly when all the accused persons except the accused Shivlal have admitted their presence on the spot, which has been found to be either the main road or nearby and, therefore, the question of right of private defence or giving explanation to the injuries sustained by the accused Tulsiram Arun Kumar and Chandrakant by the prosecution or of the application of section 149 of the Indian Penal Code does not arise. (iii) While scrutinizing the testimony of the injured witnesses, namely, Ashok Kumar (P. W. 1), Raj Kumar (P. W; 2) and Shankarlal (P. W. 3) the trial Court has recorded a finding that there is no consistency in their testimony and has, therefore, recorded a finding that there is contradiction in their evidence as regards the fact that which of the accused inflicted which of the injuries as also which of the complainant was beaten first or in what sequence and with what weapon. (iv) That so far as the other eye-witnesses are concerned, the trial Court has held that Govardhan (P. W. 4) and Ganaram (P. W. 7) are the only independent witnesses, as the other two, namely, Atahar (P. W. 6) is working as servant with the accused Shankarlal and Nike (P. W. 5) has not supported the prosecution during the trial. (iv) That so far as the other eye-witnesses are concerned, the trial Court has held that Govardhan (P. W. 4) and Ganaram (P. W. 7) are the only independent witnesses, as the other two, namely, Atahar (P. W. 6) is working as servant with the accused Shankarlal and Nike (P. W. 5) has not supported the prosecution during the trial. The learned trail Court has found that there is contradiction in the testimony of Govardhan (P. W. 4), Ganaram (P. W. 7) and Atahar (P. W. 6), as regards the marpit done by the accused persons and Nike (P. W. 5) has not seen the incident as when he woke up from sleep, he saw Rajkumar (P. W. 2) injured and the accused Tulsiram and Sunil Kumar standing with sticks. (v) In view of the inconsistency in the testimony of the prosecution witnesses as stated above, the learned trial Court has found that as injuries have been received by the complainants and three of the accused persons, it was a case of mutual fight and, therefore, while determining the individual act of each of the accused persons, the learned trial Court came to the conclusion that no definite act can be imputed to any of the accused persons in spite of Raj. kumar {po W. 2) having sustained twelve injuries, it is not possible from the prosecution evidence on record to conclude as to which of the accused inflicted which of the injuries and with what weapon, so far as the injury on the head of Shan karla I (P. W. 3), it has been proved by the prosecution that the same was caused by the appellant! accused Ashok Kumar but so far as the injuries sustained by Ashok Kumar (P. W. 1) on the little finger of the right hand and the other injuries-are concerned, which could be caused by hard and blunt weapon, they have been caused either by the appellant Sunil Kumar or the appellant Tulsiram, though according to the trial Court it has been proved beyond all reasonable doubt that Ashok Kumar (P. W. 1) sustained injuries at the hands of the appellants Ashok Kumar, Tulsiram and Sunil Kumar. (vi) Recording a finding as regards the injuries sustained by Rajkumar (P. W. 2) the trial Court has held that there is no clinching evidence to show which of the accused has inflicted which of injuries. (vi) Recording a finding as regards the injuries sustained by Rajkumar (P. W. 2) the trial Court has held that there is no clinching evidence to show which of the accused has inflicted which of injuries. ( 11 ) UNDER these circumstances, the trial Court acquitted the accused Santosh, Chandrakant, Shivlal, Arun Kumar and Tarachand of all the charges framed against them, against which the State of Madhya Pradesh has preferred an appeal against their acquittal (Criminal Appeal No. 949 of 1981) but convicted the appellants Ashok Kumar, Tulsiram and Sunil Kumar for the offence under section 323 of the Indian Penal Code, who have preferred appeal against their conviction and sentence (Criminal Appeal No. 605 of 1981 ). ( 12 ) THE learned counsel for the appellants contended that the trial Court fell in error in convicting the appellants. According to the learned counsel, the complainants were the aggressors as Rajkumar (P. W. 2) had come to the hotel with a burning wooden-log. The learned counsel further submitted that the prosecution has failed to explain the injuries admittedly sustained by them during the incident and since Rajkumar (P. W. 2) had come to the hotel of the accused Shivlal, the appellants had the right of private defence of person and property. So far as the appeal by the State against the acquitted accused is concerned, the learned counsel submitted that the view taken by the trial Court cannot be said to be perverse or improbable on the evidence on record and the trial Court having recorded the finding of acquittal on the correct appreciation of the prosecution evidence on record, there is no scope for interference in the appeal preferred by the State. ( 13 ) THE learned panel advocate appearing for the State, however, contended that acquittal of the accused persons (Criminal Appeal No. 949 of 1981) cannot be sustained in view of the fact that the prosecution had proved beyond all reasonable doubt that the accused persons having formed an unlawful assembly with a common object inflicted grievous injuries to Rajkumar (P. W. 2) and caused hurt to Ashok Kumar (P. W. 1) and Shankarlal (P. W. 3 ). It was further contended that there is no scope for extending the benefit of the right of private defence available to the accused persons. It was further contended that there is no scope for extending the benefit of the right of private defence available to the accused persons. In this respect it was pointed out by the learned panel advocate that the finding recorded by the learned trial Court that the incident was an outcome of mutual fight is perverse and based on mis-appreciation of evidence. It was further argued that on the basis of the testimony of the prosecution witnesses, it stands proved that the incident had occurred in two stages, namely, first when after unloading the firelogs, Tamsingh (P. W. 8) was called by the servant. of one of the accused persons and. when he went, was told by the accused Tulsiram that he should not have unloaded the fire-logs without first settlingthe amount due on him. At this state, according to the learned panel advocate, the question of Rajkumar (P. W. 2) proceeding to the hotel of the accused Shivlal did not arise. It was pointed out from the evidence that after the altercation had come to an end, the accused persons got assembled after lapse of about 1 1/2 hours and proceeded towards the hotel of Rajkumar (P. W. 2) having formed an unlawful assembly armed with deadly weapons with a common object to assault the complainants. Under these circumstances, it was stated that the accused persons being aggressors are not entitled for any benefit of right of private defence nor is it necessary for the prosecution to explain the injuries sustained by the accused Tulsiram, Arun Kumar and Chandrakant. The learned panel advocate in view of the prosecution evidence submitted that the trial Court took a perverse view that the incident had occurred in close proximity forming part of the same transaction So far as the place of incident is concerned, according to the learned counsel for the State, it has been proved from the testimony of Ashok Kumar (P. W. 1) Rajkumar (P. W. 2) and Shankarlal (P. W. 1 that the accused persons had proceeded to the hotel of Rajkumar (P. W. 2) armed with deadly weapons, having a common object to commit murder of Rajkumar (P. W. 2) and assaulted the complainants. Referring to the medical testimony on record, the learned counsel submitted that Rajkumar (P. W. 2)- had as many as 12 injuries out of which two - were described to be grievous by Dr. Referring to the medical testimony on record, the learned counsel submitted that Rajkumar (P. W. 2)- had as many as 12 injuries out of which two - were described to be grievous by Dr. R. C. Jam (P. W. 11 ). Referring to the injuries sustained by Ashok Kumar (P. W. 1), the learned counsel submitted that the fact that Ashok Kumar had received incised wound on the frontal region of the scalp shows that the accused persons were armed with deadly weapons. So far as the other injuries sustained by Ashok Kumar (P. W. 1) Rajkumar (P. W. 2) and Shankarlal (P. W. 3) are concerned, the learned counsel submitted that according to the medical testimony, the injuries could have been caused by deadly weapons. It was also contended that looking to the fact that Rajkumar (P. W. 2) had sustained fracture of shaft radius of the left hand, the learned trial Court committed error in acquitting the accused persons. The learned panel advocate also submitted that the question of inconsistency, if any, in the testimony of the prosecution witnesses should not have been taken into account as the accused had formed an unlawful assembly with a common object to cause grievous hurt and, therefore, it was wrong for the trial Court to record a finding of mutual fight and, therefore, it was not necessary to find out which of the injuries sustained by the complainants were inflicted by which of the accused. ( 14 ) HAVING heard the arguments advanced and perused the record, in our opinion, the correctness or otherwise of the finding of mutual fight recorded by the learned trial Court would determine the question whether the accused had the right of private defence. Ashok Kumar (P. W. 1) has deposed that Rajkumar (P. W. 2) and Shankarlal (P. W. 3) were standing in front of the shop where Nike P. W. 5) works. According to the testimony of Nike (P. W. 5) the shop is situated at some distance from the hotel of Shankarlal (P. W. 3 ). Further perusal of the testimony of Ashok Kumar (P. W. 1) shows that he has admitted the place of incident to be the open space in front of the hotel of accused persons and the main road in his cross-examination. Further perusal of the testimony of Ashok Kumar (P. W. 1) shows that he has admitted the place of incident to be the open space in front of the hotel of accused persons and the main road in his cross-examination. According to the testimony of Rajkumar (P. W. 2), the incident in which abuses were hurled by the accused-Sunil Kumar and Tulsiram from their hotel; and, therefore, he also retaliated by abuses. It is further seen from his evidence that thereafter the accused Sunil Kumar, Tulsiram, Arun Kumar and Santosh came armed with lathi and iron rods to his hotel where the actual marpit took place. Shankarlal (P. W. 3) in his testimony has stated that the altercation between Rajkumar (P. W. 2) and the accused Tulsiram and Sunil Kumar took place in front of the hotel of Rajkumar (P. W. 2) on the open space and after he went to pacify them, all the three. returned to their respective hotels. The actual marpit, according to him, had taken place after a lapse of about one and half hours when he was called from his house, in front of the hotel of Rajkumar (P. W. 2 ). So far as the other eye-witnesses are concerned, Govardhan (P. W. 4) he fixes the place partly in front of the hotel of Rajkumar (P. W. 2) and partly infront of the hotel of Shankarlal (P. W. 3) which shows that the marpit had covered the entire open spaces in front of the hotel of Rajkumar (P. W. 2) and Shankarlal (P. W. 3) which are situated across the main road. Atahar (P. W. 6) has deposed that Rajkumar (P. W. 2) was beaten in front of the shop of Nike (P. W. 5) and, thereafter, the accused persons moved towards the hotel of Sbankarlal (P. W. 3), where Ashok Kumar (P. W. 1) was sitting at the counter and this is corroborated by Ganaram (P. W. 7 ). On perusal of the testimony of S. D. Tiwari (P. W 10), it is seen that the seizure of earth effected by him vide Ex. p. 8, is from the hotel of Shankarlal (P. W. 3 ). It has already been seen from the testimony of the eye-witnesses that none of them have deposed that the incident took place inside the hotel of either Shankarlal (P. W. 3) or Rajkumar (P. W. 2 ). p. 8, is from the hotel of Shankarlal (P. W. 3 ). It has already been seen from the testimony of the eye-witnesses that none of them have deposed that the incident took place inside the hotel of either Shankarlal (P. W. 3) or Rajkumar (P. W. 2 ). Finally, coming to the testimony of Netram (P. W. 9) who has proved the map of the spot Ex. p. 7, it is seen that the place of incident is in the open space but this would have no relevance since the map does not show the locations of the hotel belonging to either Rajkumar (P. W. 2) or Shankarlal (P. W. 3) or the accused Shivlal or Tulsiram. Under these circumstances, in our opinion, the view taken by the trial Court, that the incident took place on the road or nearby the open space cannot be said to be either perverse or not based on proper appreciation of the evidence. ( 15 ) IT cannot be disputed nor was it challenged before us that persons belonging to both the groups had received injuries. The presence of the injured witnesses, namely, Ashok Kumar (P. W. 1), Raj Kumar (P. W. 2) and Shankarlal (P. W. 3) as also of the injured accused Tulsiram, Tarachand, Arun Kumar and Chandrakant cannot be disputed. It does therefore, appear from the evidence on record that the incident commenced over the sale of firewood by Tamsingh (P. W. 8) and both the groups had freely participated in the said incident. Under these circumstances, in our opinion, the trial Court did not commit any error recording a finding that the incident was an outcome of a mutual fight and, therefore, the question of the right of private defence or explaining the injuries sustained by the accused persons by the prosecution does not arise. ( 16 ) IN view of above, the only question which survives for consideration is whether individual acts of each of the accused persons can be determined on the basis of the evidence on record. ( 16 ) IN view of above, the only question which survives for consideration is whether individual acts of each of the accused persons can be determined on the basis of the evidence on record. Rajkumar (P. W. 2) and the accused Tarachand suffered fracture but it is not possible to arrive at a finding so as to reach to a conclusion which of the accused had inflicted that particular injury which had resulted in the fracture of shaft radius of the left hand of Rajkumar (p. W. 2) or the grievous injury sustained by him on the froctal region of the scalp. Rest of the injuries sustained by him and all the injured prosecution witnesses have been found to be simple in nature. In the absence of any clinching evidence on record, it would not be possible to fix the liability of the said injuries on any particular accused. The evidence of Ashok Kumar (P. W. 1), Rajkumar (P. W. 2) and Shankarlal (P. W. 3) is consistent in so for as the participation of the accused Ashok Kumar, Tulsiram and Sunil Kumar is concerned and, therefore, in our opinion, the prosecution has proved its case against them beyond all reasonable doubt for causing voluntary simple hurt to Ashok Kumar (P. W. 1), Rajkumar (P. W. 2) and Shankarlal (P. W. 3) ( 17 ) SO far as the appeal by the State against the acquitted accused is concerned, in our opinion, their mere presence on the spot is not enough to hold them liable nor the circumstances proved by the prosecution establish a case under Section 149 of the Indian Penal Code. In view of above the judgment of acquittal of the accused Ashok Kumar, Tulsiram, Sunil Kumar, Santosh, Chandrakant, Shivlal, Arun Kumar and Tarachand under Section 307, 307/149, 325 and 147 of the Indian Penal Code needs no interference. ( 18 ) THE conviction of the accused Ashok Kumar, Tulsiram and Sunil Kumar under Section 323 of the Indian Penal Code is upheld. The only question that remains to be considered is regarding their sentence. The counsel for the appellants submitted that the appellant/accused Asbok Kumar bas been in jail for about 25 days while the other two appellants, namely, Tulsiram and Sunil Kumar, had been in jail for about 9 days. The only question that remains to be considered is regarding their sentence. The counsel for the appellants submitted that the appellant/accused Asbok Kumar bas been in jail for about 25 days while the other two appellants, namely, Tulsiram and Sunil Kumar, had been in jail for about 9 days. The learned panel advocate appearing for the State did not contest this submission of the counsel I for the appellants. We find that the incident is of 1st November, 1980. Almost three years have elapsed before the appeal is being decided. It bas already been noted that injuries have been sustained by the complainants as well as some of the accused persons. The incident was an outcome of a trivial matter over a sale of the firewood. The learned trial Court bas awarded the maximum sentence as provided in section 323 of the Indian Penal Code. The appellants are on bail and no useful purpose would be served to send them to prison after such a lapse of time. In our opinion, therefore, the interest of justice would be served if the sentences awarded to the appellants are altered to that already undergone and to a fine of Rupees five hundred each. ( 19 ) IN the result, the appeal is partly allowed. The conviction of the appellants Ashok Kumar, Tulsiram and Sunil Kumar under Section 323 of the Indian Penal Code is maintained but their sentence to rigorous imprisonment for one year is altered to the period already undergone and to pay a fine of Rs. 500. 00 each or, in default, to suffer rigorous imprisonment for three months each. Order accordingly. .