Pushap Raj and Muhesh v. State of Rajasthan — 1994 DIGILAW 904 (RAJ)

Honble CHOPRA, J. - This appeal filed by Shri Pushap Raj and Mahesh, is directed against the judgment of conviction and order of sentence, passed by learned Sessions Judge, Udaipur, dated 16.09.1993, whereby the learned Sessions Judge has held the accused appellant Pushap Raj guilty of offence under Sections 302 and 307 read with 34, IPC and accused-appellant Mahesh guilty of offence under Sections 302 read with Sec. 34, IPC and under Sec. 307, IPC. Learned Sessions Judge sentenced them to life imprisonment for offences under Sections 302 and 302/34, IPC respectively. They were further sentenced to five years rigorous imprisonment together with fine of Rs. 1000/-each, for offences under Sec. 307 read with 34, IPC and 307, IPC respectively. In default of payment of amount of fine, they were further to under go six months rigorous imprisonment. Both the substantive sentences have been ordered to run concurrently. (2). The facts necessary to be noticed for the disposa.1 of this appeal, briefly stated, are that on 10.7.1991 at about 12.45 PM, an oral report was made by one Babu Lal, who has been examined as PW l,to the Station House Officer, Mawli, that the complainant party has a land dispute with the accused party. Police station, Mawli, at Primary Health Centre. The complainant party consisted of Babu Lal and his two uncles Daula and Hari Ram, both sons of Sakhaji Gujar, resident of village Javda. The accused party consisted of Mahesh and Pushap Raj, both sons of Jagan Nath Mali, resident of Mawli. They have a land dispute about the land situated in vilage Javda about which certain cases were pending. A hearing of one of such cases was there (At Mawli) on 10.7.1991. It is alleged that they attended the hearing and after attending the hearing, Babu Lal alongwith Daula and Hari Ram went to their field, which is situated just out side Javda willage on a motor cycle. They went to their well. A hut is situated on their field and on going there, they noticed that Mahesh who was armed with an axe, Pushap Raj who was armed with a dhariya and three more persons, who were accompanying them, armed with iron rods; were hiding inside the hut. As soon as they reached there near the well, these persons came out of the hut and ran towards them to kill them. As soon as they reached there near the well, these persons came out of the hut and ran towards them to kill them. Mahesh inflicted an axe blow on the head of Daula, which caused a bleeding injury. On this, in order to save their lives, they ran towards the village on the motor cycle. Thereafter, when they were going to report the matter to the police, and were near Bagoliyaji Ka Tank, situated between villages Mordi and Mortadi, Mahesh, Pushap Raj and his three companions who were later identified as Lokendra, Abdul Gaffar and one unknown person, stopped them and Mahesh and his companions caught hold of Hari Ram and Pushap Raj started inflicting injuries with his dhariya on the head of Hari Ram. He inflicted number of blows on his head. Daula was inflicted injuries the axe by Mahesh and his two companions with iron rods wereby he received number of injuries on his head and body. He too was inflicted with iron rods on his head, legs back ets. As condition of Hari Ram became serious, they hired the jeep of Arjun Lal Chaudhary, No RJ 27- C 0294 and brought him to Mawli hospital from where he was referred for treatment to Udaipur hospital. It was alleged that Dule Singh Rao and two more persons of Mortadi saw the occurrence. This oral report has been reduced into writing and marked as Ex. P.6, on the basis of which formal F.I.R. was drawn. The accused persons were arrested on the same day. They too had injuries on their person, therefore, medical examination of the injuries of the injured persons was got done. The injury report of Pushap Raj has been marked as Ex. P 21 and of Mahesh has been marked as Ex. P 22 and that of Lokendra as Ex. P24. These examinations are dated 10.7.1991. The medical examination of the injuries of Hari Ram has been marked as Ex. P 21(1), the injury report of the Babu Lal has been marked as Ex. P 23(1) and the injury report of Daula has been marked as Ex.P. 24(1) all of which-have been proved by Dr. N.S. Kothari. Hari Ram died at 5.00 AM or11.7.1991 and, therefore, his post mortem examination was conducted and his post mortem report has been marked as Ex. P. 22(1). (3). P 23(1) and the injury report of Daula has been marked as Ex.P. 24(1) all of which-have been proved by Dr. N.S. Kothari. Hari Ram died at 5.00 AM or11.7.1991 and, therefore, his post mortem examination was conducted and his post mortem report has been marked as Ex. P. 22(1). (3). The accused persons after running from the place of occurrence, went to the house of Mst. Durga Kanwar wife of Gamer Singh, resident of Martadi, in the fodder-room (kotha) of Badan Singh and it was with great difficulty that with the help of Ram Singh, Nar-Singh and Narain Singh they could be fumed out of that room. On arrest, they gave information about the recovery of one dhariya one kulhari (axe) and two lathis and, these weapons have accordingly been recovered at their instance. Dhariya and Kulhari were recovered from the house of Mst. Durga Kanwar, from the kotha where they hid themselves and two lathis have veen recovered on the information of Lokendra and Abdul Gaffar. The arrest memos of Mahesh, Pushap Raj, Lokendra and Abdul Gaffar have been marked as Exs.Pl to P4. The blood stained clothes of the deceased were taken into possession vide memo Ex.P10 and the two lathis recovered at the instance of Lokendra and Abdul Gaffar have been seized vide memos Ex. P 11 and Ex. P12 respectively. The axe was* recovered at the instance of accused Mahesh vide memo Ex. P 13. It is alleged that for Abdul Gaffar, a cycle was hired from Shree Ram Cycle Store by accused Mahesh Mali and that entry in the register of Shree Ram Cycle Store, whereby that cycle was hired by Mahesh has been marked as Ex. P 14. All these seized articles were sent for chemical and serological examination and chemical and serological examination report was marked as Ex P37. (4). After usual investigation, the case against the accused persons was challaned in the court of learned Addl. Chief Judicial Magistrate, .Mavli, from where it was committed for trial to the court of learned Sessions Judge, Udaipur. The fifth accused, whose presence has been mentioned in the F.I.R. could not be identified and therefore, only four accused persons were challaned and it is they who have faced the tiral. Chief Judicial Magistrate, .Mavli, from where it was committed for trial to the court of learned Sessions Judge, Udaipur. The fifth accused, whose presence has been mentioned in the F.I.R. could not be identified and therefore, only four accused persons were challaned and it is they who have faced the tiral. The accused Pushap Raj has been charged with offences under Sections 302, 307/34, 324/34 and 323, IPC whereas Lokendra has been charged with the offences under Sections 302/34, 307/34, 324/34 and 323 IPC. Accused Mahesh was charged with offences under Sections 302/34, 307, 324 and 323, IPC whereas accused Abdul Gaffar was charged with offences under Sections 302/34, 307/34. 324/34, and 323, IPC. They did not plead guilty to the charges and claimed trial, whereupon the prosecution examined as many as 13 witnesses in support of their case. The statements of accused persons were recorded under Section 313, Cr.P.C They have given stereotyped statements wherein all of them have stated that from Mavli, they were going to Palana. In the way, they met with Babu Lal Daula, Hari Ram, Gamera etc. They (Babu Laletc.) opened an attack on them and tried to snatch their cycle and vikki. They inflicted number of injuries to them. Thus, in order to save themselves and their property, they put in resistance and it is in that process that the compainant party received injuries. Therefore, it is alleged that they ran from the place of occurrence and went and hid themselves in the house of Badan Singh, otherwise they could have been killed. Therefore, whatever they have done, they have done in exercise of their right of private defence of person and property. In their defence, they examined Dr. Gulam Sibten who has proved the injury reports of, Pushap Raj marked as Ex.. P 21, of Mahesh Ex. P2, of Lokendra marked as Ex.P. 23. As per Ex.P. 21 Pushap Raj had in all seven injuries, out of which injuries No. 3, 4, 5 and 6 were bruises, injury No. 1 was a lacerated wound and injury No. 2 was a swelling. His X-ray examination report Ex. P24 shows that he had no bone injury. Thus, Pushap Raj received in all 7 injuries by some blunt object, which were simple in nature. Mahesh received four injuries, two of which were bruises and one was a lacerated wound. The fourth was haematoma. His X-ray examination report Ex. P24 shows that he had no bone injury. Thus, Pushap Raj received in all 7 injuries by some blunt object, which were simple in nature. Mahesh received four injuries, two of which were bruises and one was a lacerated wound. The fourth was haematoma. All these injuries received by Mahesh too were simple in nature and caused by some blunt weapon. Lokendra received three bruises, which were caused by a blunt weapon and were simple in nature. Doctor Gulam Sibten has proved all these reports, which were admitted. Accused Mahesh himself entered the witness box as D.W. 2. No other witness has been examined from the side of the accused persons. (5). After hearing both the parties, learned trial Judge came to the conclusion that the prosecution failed to bring home the guilt against accused Lokendra and Abdul Gaffar, for alleged offences under Sections 302, 307 and 324, all read with Sec. 34, IPC and under Sec. 323, IPC and Therefore, they deserve to be acquitted of all the offences with which they are charged and ordered their acquittal accordingly. The two accused persons, Pushap Raj and Mahesh, were held guilty for offence under Sec. 302 and 307/34 IPC. and 302/34 and 307 IPC respectively but they were not convicted for offences under Sees. 324 and 323 read with Sec. 34, IPC. Their convictions have been recorded as aforesaid and they were sentenced in the manner stated above. Hence this appeal by these two accused persons. (6). We have heard Shri Sandeep Mehta, appearing for the accused appellants and Shri D.R. Bohra, learned Public Prosecutor, appearing for the State and have critically gone through the record of the case and have given our most anxious consideration to the rival submissions made at Bar. (7). Now this has to be seen whether the judgment of learned Sessions Judge, Udaipur can be sustained or not. In this case the prosecution has examined two injured eye witnesses of the occurrence and they are PW 1 Babu Lal and PW 2 Daula. PW 3 Dule Singh has also been examined as alleged eye witness of the occurrence. As per the First Information Report, Ex. P6, the occurrence has taken place in two parts. It is admitted case of the parties that number of cases are going on in between them as regard the disputed field of the complainant party. PW 3 Dule Singh has also been examined as alleged eye witness of the occurrence. As per the First Information Report, Ex. P6, the occurrence has taken place in two parts. It is admitted case of the parties that number of cases are going on in between them as regard the disputed field of the complainant party. The accused persons claim this field to be their own whereas the complainant party says that the field belongs to them. A well is situated on this field. It was stated by PW 1 Babu Lal and PW 2 Daula that on 10.7. 1991, a hearing if a case about this land was fixed before the Tehsildar, Mavli and they attended that hearing. After attending the court of Tehsildar, Mavli, it has been stated by them that they arrived at their field at about 12.00 noon on a motor cycle. The motor cycle was driven by Babu Lal and he was carrying Hari Ram and Daula with him. When they reached near the well in their field, at 12.00 in the day, it has been stated by both these witnesses that, Mahesh, armed with an axe, Pushap Raj, armed with a dhariya and their three companions who were all hiding themselves in the hut which is situated in the field, ran towards them and Mahesh inflicted an axe blow on the head of Daula, by which blod oozed out. In order to save their life, they ran away from the field. At the trial, these witnesses have stated that out of those three persons accompanying Mahesh and Pushap Raj, two were Lokendra and Abdul Gaffar. They did not name the fifth man but they have stated that Pushap Raj armed with dhariya and Mahesh was armed with an axe and others were armed with iron rods and lathi, as per PW 2 Daula and, as per PW 1 Babu Lal the other three persons were armed with lathis. As soon as Daula was injured, they immediately ran from that place to save their lives on their motor cycle towards their village. Now this has taken to be seen whether any occurrence has taken place in the field. We are firmly of the opinion that no occurrence has taken place in the field. This is what has been held by learned Session Judge also. Now this has taken to be seen whether any occurrence has taken place in the field. We are firmly of the opinion that no occurrence has taken place in the field. This is what has been held by learned Session Judge also. Although the conclusion is the same, but our reasons for this conclusion is the same, but our reasons for this concluson are little different from those which have prevailed with learned Sessions Judge. (8). PW 13 Prithvi Singh, the Station House Officer, who has inspected the site and who has prepared the site inspection memo Ex. P9, has categorically stated in that site inspection memo that from place A in the site plan where the occurrence took place, the hut C in the field was situated at a distance of 200 yards and this is what he has stated in his cross examination, that, from the place of occurence, the hut was 200 yards away. If that be so, and if these five persons were hiding inside the hut and came out on seeing them and, as stated by these two witnesses and they were armed with dhariya, axe and lathis or iron rods and, the complainant party (Babu Lal, Daula and Hari Ram) were on motor cycle, they would immediately have ran for their life by starting the motor cycle. They would not have allowed those accused persons to run for 200 yards to inflict injuries on the head of Daula. Daula has categorically admitted that this was a bleeding injury. Of course, PW 1 Babu Lal has stated that no blood trickled down or dropped on the earth but Daula categorically stated that the blood oozed out of the injury, but the Station House Officer did not find any trace of blood on the field. Moreover, if they ran for their life on their motor cycle and were bound for the Police Station to report the matter and, when it is not their case that the accused persons had their cycles and vikki with them in that field, then certainly the accused party could not have reached the place of occurrence, that is, Bagoliyaji Ka Tank, situated between Mordi and Martadi village. It is not the case of these witnesses that they stayed for some time in the village. It is not the case of these witnesses that they stayed for some time in the village. They have only stated that they went through the village to report the matter to the police and, therefore, they could not have met these accused, persons at the place of the second occurrence. Thus, these witnesses have state falsely that a part of the occurrence has taken place in their disputed field where on injury was inflicted on the head of Daula* by Mahesh with an axe. Thus, to this extent, the testimony of eye witnesses is totally un-reliable and un-believable. The occrrence has taken place near Bagoliyaji Ka Tank, between villagea -Mordi and Martadi, which is a common place. The complainant party has alleged that they were going towards Mavli for reporting the matter whereas the accused persons stated that they were coming from Mavli for going to Palana to enjoy feast and in the way when they were going towards Palana, they were availed by these persons of complainant side, that is, Babu Lal, Daula and Hari Ram, alongwith Gamera. It is alleged that they were armed with lathis and iron rods and inflicted injuries to the accused persons. On being beaten by them, they took out a dhariya which was there in the carrier of the cycle of Camera and Pushap Raj inflicted injury with that dhariya Jo Hari Ram and Daula. Mahesh and others were not armed with any weapon, as stated by them . Thereafter, it is alleged that this dhariya was snatched from Pushap Raj. It is alleged that the complainant party asked them to part with their cycles and vikki and hand them over to the complainant party, but they were not ready to part with those articles and, hence, they were beaten. Whereas, the case of the prosecution is that the complainant party was going to report the matter to the Police Station, Mavli and they were stopped in the way near Bagoliyaji Ka Tank. According to the prosecution, Mahesh was armed with an axe and Pushap Raj was armed with a dhariya and other three accused persons, two of whom have been named as Lokendra and Abdul Gaffar, were armed with either lathis or iron rods. The accused persons availed the complainants and inflicted injuries to them. According to the prosecution, Mahesh was armed with an axe and Pushap Raj was armed with a dhariya and other three accused persons, two of whom have been named as Lokendra and Abdul Gaffar, were armed with either lathis or iron rods. The accused persons availed the complainants and inflicted injuries to them. It is definitely stated by both the eye witnesses of the occurrence, PW 1 Babu Lal and PW 2 Daula that they did not see any injury on the person of either Mahesh or Pushap Raj. PW 3 Dule Singh, near whose field this, occurrence has taken place , has stated that he was coming from his well which is situated near Bagoliyaji Ka Tank. He saw Daula, Gamera, Babu Lal and Hari Ram. Hari Rams head was bleeding. When he asked him as to what has happened, he was told that the persons who are running away from there, have inflicted these injuries on them. The names of those persons were not taken before him. He told that Hari Rams condition was very serious, and, therefore, he was shifted to Hospital. In the evening, he was told that Gujars have inflicted these injuries and after inflicting injuries they have gone to the house of Badan Singh and there they hid themselves in his Kothas from where they were taken out by Narain Singh, Jai Singh etc. (9). Now as per Dr. N. S. Kothari, PW 12, he found four injuries on the person of deceased Hari Ram. Two of them were sharp weapon injuries, the first being of the size of 18x1.5 cms.x bone deep, which extended upto and situated on the right fronto-parietal and temporal region but the injuries have gone to the left side also. It was a curved wound and under-neath bone has also been cut and blood was coming out and, the other sharp weapon injury was of the size 4x0.6 cms.x bone deep on right parietal region. He had two bruises of the size 4x2 cms. and 8x4 cms. on the right shoulder. He advised x-ray examination of injuries No. 1 and 2. The patient was semi-conscious and irritable and his pupils were dilated, his blood rate was 160 per minute and blood pressure weas not recordable. He has proved his injury report Ex. P 21. He had two bruises of the size 4x2 cms. and 8x4 cms. on the right shoulder. He advised x-ray examination of injuries No. 1 and 2. The patient was semi-conscious and irritable and his pupils were dilated, his blood rate was 160 per minute and blood pressure weas not recordable. He has proved his injury report Ex. P 21. Hari Ram died in the night and, therefore, his post mortem examination was condected at about 7.45 A.M. on 11.7.1991 and, in addition to above injuries which were found earlier a stitched wound for vene-section on his right leg 3 cms.long was also noticed. On opening the skull, it was found that the right parietotemporal bone was cut in the size 6x0.8 cms., lot of blood has clotted underneath the skin of the skull. The brain and brain membranes were also cut and there was haemorrhage in the brain beneath injury No.l. There was sub-dural haematoma also. (10). On 10.7.1991, Dr. N. S. Kothari, PW 12, also examined the injuries of Babu Lal. He had three injuries on his person. One was a lacerated wound of size 1.5x0.5 cms.x bone deep on the right parietal region. One bruise of size 8x1,5 cms. was situated on the left leg and one bruise of the size 0.5x0.2 cms. was noticed on left palm. All the three injuries were simple in nature, caused by a blunt weapon. Dr. N.S, Kothari proved the injury report Ex.P 23(A) of Babu Lal. On the same day, he examined the injuries of Daula, who was an indoor patient in Ward No. 11 He had four sharp weapon injuries, of the size 6x0.5 cms.x bone deep in right parietal bone, 5.5x0.5 cms.x bone deep on mid parietal bone of the head, 3.5x0.5 cms.x skin deep on left parietal region and 3x0.5 cms.x skin deep on right palm near the thumb and there was one Lacerated wound of the size 0.5x0.2 cms.x skin deep, near his left. In addition to these injuries, he had five blunt weapon injuries. There was swelling on his right werist of the size 4x2 cms. and three bruises of the sizes 6x3 cms., 5.5x3 cms. and 2x1 cms., on his left thigh, on the back of the chest and on right side of the chest near scapula, respectively. There was an abrasion also of the size 2x1 cms. There was swelling on his right werist of the size 4x2 cms. and three bruises of the sizes 6x3 cms., 5.5x3 cms. and 2x1 cms., on his left thigh, on the back of the chest and on right side of the chest near scapula, respectively. There was an abrasion also of the size 2x1 cms. on the back side of the chest on the left inside near scapula. Doctor Kothari proved his injury report Ex. P24 (A). He has also proved his X-Ray examination report Ex.P25, according to which, all the injuries were found to be simple in nature and caused by sharp and blunt objects. (11). It is, therefore, clear from this evidence of the Doctor N.S Kothari, that three persons were injured from the side of the prosecution (complainants). Hari Ram received four injuries, Babu Lal 3 and Daula 10 injuries; thus, in all 17 injuries were inflicted on them. Whereas, from the accused side also three persons were injured. Pushap Raj received as many as 7 injuries, which were simple in nature and caused by blunt weapon, Mahesh received 4 injuries and Lokendra received 3 injuries, thus, they received in all 14 injuries. (12). Although both the parties have given a different version as to how the occurrence has started but they cannot be believed, that it was an attack by one party on the other. Nobody appears to be initially aggressive. It appears that after the hearing of the case at Mavli, both the parties met each other at the place of occurrence at Bagoliyaji Ka Tank. The accused party was on vikki and cycles and the complainant party was on a motor cycle. They were armed and as soon as they saw each other at that place, they indulged in fighting with each other. Thus, it was a case of mutual free fight. Nobody acted in right of private defence. Both were aggressive and attacked each other. The defence story that the complainant party wanted to snatch from them their vikki and cycles and it is because of this that they were beaten, cannot be believed because it was categorically stated that afteitially aggressir beating they ran away and it is stated by D.W. 2 Mahesh that the complainant party followed them for half a mile. The defence story that the complainant party wanted to snatch from them their vikki and cycles and it is because of this that they were beaten, cannot be believed because it was categorically stated that afteitially aggressir beating they ran away and it is stated by D.W. 2 Mahesh that the complainant party followed them for half a mile. If beating was given to them for snatching the cycle and vikki, the cycles and vikki could not be allowed to lie at the place of occurrence. Nobody had taken them away. Therefore, this defence version that beating was given in order to snatch these articles, is un-believable. The defence has also set up a plea that they were un-armed and, therefore, first they were beaten because the complainant party, which was armed and, thereafter, Pushap Raj took out a dhariya from cycle of Gamera and, thereafter, in exercise of their right of private defence, they resisted and inflicted counter injuries to complainant party. It is alleged that thereafter dhariya was again snatched from them and if that be so, if such a beating was given by Pushap Raj to the complainant party, they must certainly have inflicted injuries with the dhariya upon them, which was not done and, thus, this story is totally un-believable. PW 1 Babu Lal and PW 2 Daula have categorically stated that Pushap Raj was armed with a dhariya and Mahesh was armed with an axe. Mahesh inflicted blows with axe to Daula and Pushap Raj inflicted a blow with a dhariya to Hari Ram and other persons, who were armed with lathis or iron rods, inflicted injuries to them. PW 3 Dule Singh has categorically stated that when he went to the place of occurrence, these persons were lying there in an injured condition. Hari Ram was serious and he advised that Hari Ram should immediately be shifted to the hospital. When he asked these two witnesses as to who has beaten them, they told him that those persons who were running away, have beaten them. Thus, it is clear that the accused persons were not followed by anyone. PW 4 Jai Singh and PW 8 Ram Singh as also PW 9 Nar Singh, have categorically stated that Mst. When he asked these two witnesses as to who has beaten them, they told him that those persons who were running away, have beaten them. Thus, it is clear that the accused persons were not followed by anyone. PW 4 Jai Singh and PW 8 Ram Singh as also PW 9 Nar Singh, have categorically stated that Mst. Durga Kanwar wife of Camera informed them that some persons were hiding themselves in her kotha, she was alone in the house and they were not coming out. On this, these witnesses went to the house of Badan Singh. There they found that about four persons were hiding themselves inside the kotha. Two were in one kotha which was filled with fodder and other two were in another kotha. According to PW 4 Jai Singh, one of them was Mahesh and other was Pushap Raj and two other unknown persons were also there but he does not know their names. According to Ram Singh, PW 8, these persons who were hiding inside the kotha of Mst. Durga Kanwar, were armed with weapons like dhariya and lathis. When they asked them why they were hiding there, they told that Gujars were coming to kill them and, therefore, they hid themselves there to save their lives. In the presence of Ram Singh, one dhariya and one kulhari (axe) was recovered from the grass kotha of Mst. Durga Kanwar, at the instance of accused Pushap Raj and Mahesh. It is nobodys case that these weapons were of Mst. Durga Kanwar and they were recovered not at the instance of accused persons, Mahesh and Pushap Raj, but were already lying there inside the said kotha and, therefore, this lends support to the testimony of PW 1 Babu Lal and PW 2 Daula, that Pushap Raj and Mahesh were armed with dhariya and axe respectively, which articles were found stained with human blood on chemical and serological examination. These articles, were recovered at their (accused persons) instance, that is, Pushap Raj etc. This fact is proved by testimony of injured eye witnesses as well by accused persons themselves, who had inflicted injuries with it. (14). Under these circumstances, it is clear that it was a case of free and mutual fight, in which both the parties were armed and inflicted injuries to each other by whatever weapons they were possessing. This fact is proved by testimony of injured eye witnesses as well by accused persons themselves, who had inflicted injuries with it. (14). Under these circumstances, it is clear that it was a case of free and mutual fight, in which both the parties were armed and inflicted injuries to each other by whatever weapons they were possessing. It is unfortunate that from the accused party side, no case was registered and that the two accused persons, that is, Lokendra and Abdul Gaffar, whose presence at the place of occurrence has amply been proved by testimony of prosecution witesses and by the accused persons themselves, and who have categorically stated in their statement that they inflicted injuries to complainant party, have been acquitted. (15). Be that as it may, from the evidence, it is clear that assailant of Hari Ram was Pushap Raj and assailant of Daula for causing sharp injuries was Mahesh. Therefore, they have to be held guilty for injuries which were inflicted by them. In a case of free fight, no right of private defence is available to anybody and everybody is responsible for his own acts. The two sharp weapon injuries sustained by Hari Ram have been held to be fatal, especially injury No.l, in the opinion of the Doctor, was sufficient to cause death in the ordinary courrese of nature and, therefore, so far as accused Pushap Raj is concerned, he has to be held guilty of offence under Sec. 302, IPC. In so far as Mahesh is concerned, it is no doubt true that he has inflicted as many as four injuries to Daula with sharp weapon, three of which were situated on the head and fourth was near his right eye, but all these injuries are simple in nature. The depth of first one only goes to 0.5 cms. Two were deep upto bone and fourth one is deep only upto skin. From the nature of injuries, it cannot be said that they were fatal to life or were likely to cause death of the injured. In this case, it was alleged that before injuries were inflicted to Hari Ram he was caught by Mahesh and one more person. Two were deep upto bone and fourth one is deep only upto skin. From the nature of injuries, it cannot be said that they were fatal to life or were likely to cause death of the injured. In this case, it was alleged that before injuries were inflicted to Hari Ram he was caught by Mahesh and one more person. When that other person has been acquitted of the offence, then Mahesh cannot be held guilty of holding Hari Ram at the time of beating and, therefore, he cannot be held guilty of offence under Sec. 302, IPC with the aid of Sec 34, IPC for the death of Hari Ram. Under these circumstances, Mahesh has to be held guilty of offence under Sec. 324, IPC only, because as per X- ray examination report of Daula, all these injuries were found to be simple in nature. No aid of Sec. 34, IPC can be taken in this case. (16). It is not a case where falsehood and truth are so inter- mingled that it is difficult to sift truth from falsehood and, therefore, the decision of their Lordships of Supreme Court, rendered in Kanbi Nanji Virji and Ors. vs. State of Gujarat (1), has no application to the facts of the present case. (17). It is definitely a case of free fight, as has been held by their Lordships of Supreme* Court in Dharman vs. State of Punjab (2). Of course, in that case both the parties were armed with deadly and sharp weapons. Here only one party was armed with sharp weapon and blunt objects and the other party was not armed with any sharp of deadly weapon. Therefore, the accused persons were to be held guilty of their own acts of commission charged and, accordingly, we are of the firm view that the accused Pushap Raj is to be held guilty of offence under Sec. 302, IPC and accused Mahesh is to be held guilty of offence under Sec. 324, IPC. (18). In the result, appeal partly succeeds and the conviction of accused appellant Pushap Raj recorded under section 302, IPC. is sustained but his conviction under section 307 read with section 34, IPC is set aside. The conviction of accused appellant Mahesh recorded under Sections 302/34 and 307, IPC is also set aside and instead, he is held guilty of offence under Sec. 324, IPC. is sustained but his conviction under section 307 read with section 34, IPC is set aside. The conviction of accused appellant Mahesh recorded under Sections 302/34 and 307, IPC is also set aside and instead, he is held guilty of offence under Sec. 324, IPC. For offence under Sec. 302, IPC, accused appellant Pushap Raj has already been sentenced to life imprisonment, therefore, his sentence is maintained. However, accused Mahesh has earlier remained in custody from 10.7.1991 to 12.11.1991, that is, almost four months and two days. He was taken back in custody on 16.09.1993 and he was ordered to be released on bail on 4.2.1994 and he was actually released on bail on 7.2.1994 and, as such, he remained in custody for 4 months and 21 days this time. Thus, it will meet the ends of justice if he is sentenced to period of imprisonment already undergone by him for the offence under Sec. 324, IPC. He need not to surrender to his bail bonds. The result of this appeal as regard accused appellant Pushap Raj be conveyed to Jail authorities immediately for compliance.