JUDGMENT 1. - As many as ten accused (including the appellants) were indicted before the learned Additional Sessions Judge, (Fast Track) Alwar in Sessions Cases No. 109/2001. Learned Judge vide judgment dated July 24, 2001 convicted and sentenced seven appellants as under:-Phool Singh Under section 302 Indian Penal Code : To suffer Imprisonment for life and fine of Rs. 1000/-, in default to further suffer Rigorous Imprisonment for Three Months. Under section 147 Indian Penal Code : To suffer Rigorous Imprisonment for One Year. Under section 323/149 Indian Penal Code : To suffer Rigorous Imprisonment for Six Months. Ram Kumar, Babli, Mauji @ Ram Khiladi, Ballu, Lachchu and Bachchu: Under section 302/149 Indian Penal Code : To suffer Imprisonment for life and fine of Rs. 1000/-, in default to further suffer Rigorous Imprisonment for Three Months. Under section 147 Indian Penal Code : To suffer Rigorous Imprisonment for One Year. Under section 323/149 Indian Penal Code : To suffer Rigorous Imprisonment for Six Months. Substantive sentences were directed to run concurrently.Three co-accused Smt. Rama Devi, Smt. Keshanti and Smt. Kishni were however acquitted. In Criminal Appeal No. 500/2001 the appellants seven in number have impugned the aforesaid judgment. 2. In the cross case bearing Sessions Case No.45/2001 instituted by Bachchu (appellant of appeal No. 500/2001), Shobha Ram, Nandu Q Nandkishore, Kabira and Narendra were convicted and sentenced by the learned Additional Sessions Judge (Fast Track) Alwar vide judgment dated July 24,2001, as under:-Shobha RamUnder section 325 Indian Penal Code : To suffer Rigorous Imprisonment for Three. Years and fine of Rs. 1000/-, in default to further suffer Rigorous Imprisonment for Three Months. Under section 324 Indian Penal Code : To suffer Rigorous Imprisonment for Two Years. Under section 323 Indian Penal Code : To suffer Rigorous Imprisonment for One Year. Under section 148 Indian Penal Code : To suffer Rigorous Imprisonment for Two Years. Nandu @ Nandkishore :Under section 325/149 Indian Penal Code : To suffer Imprisonment for Three Years and fine of Rs. 1000/-, in default to further suffer Rigorous Imprisonment for Three Months. Under section 324 Indian Penal Code : To suffer Rigorous Imprisonment for Two Years. Under section 323 Indian Penal Code : To suffer Rigorous Imprisonment for One Year. Under section 148 Indian Penal Code : To suffer Rigorous Imprisonment for One Year. 1000/-, in default to further suffer Rigorous Imprisonment for Three Months. Under section 324 Indian Penal Code : To suffer Rigorous Imprisonment for Two Years. Under section 323 Indian Penal Code : To suffer Rigorous Imprisonment for One Year. Under section 148 Indian Penal Code : To suffer Rigorous Imprisonment for One Year. Kabira & NarendraUnder section 325/149 Indian Penal Code : To suffer Rigorous Imprisonment for Three Years and fine of Rs. 1000/-, in default to further suffer Rigorous Imprisonment for Three Months. Under section 324/149 Indian Penal Code : To suffer Rigorous Imprisonment for Two Years. Under section 323 Indian Penal Code : To suffer Rigorous Imprisonment for One Year. Under section 148 Indian Penal Code : To suffer Rigorous Imprisonment for One Year. Substantive sentences were directed to run concurrently.Shobha Ram, Nandu @ Nandkishore, Kabira and Narendra are the appellants in Appeal No. 488/2001. 3. Since both these appeals arise out of the same incident, we proceed to decide them by a common judgment.Appeal No. 500/2001 : 4. As per the prosecution story, a written report was submitted by informant Shobha Ram Yadav with the Police Station Malakheda on June 16, 1999 to the effect that on June 15, 1999 at about 5.00 PM when the informant was at the field Phool Singh Ram Kumar, Babli, Maui, Ram Khiladi, Billu, Lachchu, Bachchu, Rama Devi, Keshanti and Kishni armed with Sariyas, Tanchias, Lathis, Farsis, Dandas and Stones came to the field of the informant. Lachchu struck lathi blow on the right shoulder of the informant while Mauji gave lathi blow on his left leg. Hearing the cries of the informant when Manohar Lal, the uncle of the informant, intervened, Phool Singh gave 2-3 blows with Sariya on the head of Manohar Lal and Babli gave tanchia-blow, due to which Manohar Lal fell down and bleeding started. Thereafter Ram Khiladi, Ram Kumar, Lachchu, Billu, Jai Kishan and ladies gave blows with lathis, dandas and stones. Injured Manohar Lal was initially taken to Primary Health Centre Malakheda and then to Alwar Hospital where he died on June 16, 1999. Case under Sections 147, 323 and 302 Indian Penal Code was registered and investigation commenced. Necessary memos were drawn and accused were arrested. On completion of investigation charge sheet was filed. Injured Manohar Lal was initially taken to Primary Health Centre Malakheda and then to Alwar Hospital where he died on June 16, 1999. Case under Sections 147, 323 and 302 Indian Penal Code was registered and investigation commenced. Necessary memos were drawn and accused were arrested. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Alwar bearing Sessions Case No. 109/2001. Charges under Sections 147, 302, 302/149, 149, 323/49 were framed against the accused Phool Singh and other accused were charged for the offences under Sections 147, 302/149 and 323/49. The accused denied the charges and claimed trial. The prosecution in support of its case examined as many as 8 witnesses and exhibited 31 documents. In the explanation under Sec.313 Criminal Procedure Code , the accused claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing the final submissions convicted and sentenced seven appellants as indicated herein above. 5. Considering at the outset the post mortem report (Ex.P-1) we find that deceased Manohar Lal sustained following ante mortem injuries : "(1) Lacerated Wound 10 x 4 cm x bone deep Rt. Parieto Temporal Region - red clotted blood. Sub scalp haematoma over Rt. Parieto occipital & temporal region. There is fracture of (Rt.) side parieto Temporal base-tissue staining at fracture site-external & subdural Heamotoma (Rt.) side skull at Rt. parieto Temporal. (2) Lacerated Wound 6 x 2 x 1 cm Lt. Parieto region occipital skull - red clotted blood. (3) Bruise 6 x 4 cm Rt. Temporal Region. (4) Abrasion 6 x 5 cm x Rt. Fore arm. (5) Lacerated Wound 5 x 1 x 1/2 finger Lt. Hand joint red clotted blood. Dr. Amar Singh Rathore (Pw.1), who performed autopsy on the dead body stated that the cause of death was coma due to head injury, which was sufficient in the ordinary course of nature to cause death. 6. It is contended on behalf of the appellants that the complainant party itself having been found guilty in the cross case, learned trial judge has committed a gross legal error in overlooking the factum of free fight and resorting to Section 149 Indian Penal Code. 6. It is contended on behalf of the appellants that the complainant party itself having been found guilty in the cross case, learned trial judge has committed a gross legal error in overlooking the factum of free fight and resorting to Section 149 Indian Penal Code. In view of the finding of learned trial judge in cross case bearing No.45/2001 the prosecution version with regard to commencement of the alleged assault became totally unworthy of any credibility. It is next contended that the trial judge failed to take into consideration the fact that the appellants and their relatives were attacked with Axe, Tanchia, Sariya and Lathi and they received 24 simple and grievous injuries. As against the injuries to five persons from the side of appellants including 3 ladies, only deceased Manohar Lal and the informant Shobha Ram are alleged to have been injured in the altercation. The probability in over all circumstances of the case was that the complainant party in Sessions case No. 109/2001 was the aggressor and the injuries were caused in the right of private defence. It is next contended that the delay in lodging the FIR creates doubt in the trustfulness of the prosecution story. It is further contended that there was mis-match between the ocular evidence and medical evidence. Reliance is placed on Laxman v. State of Rajasthan, 2001 Cr.L.R. (Raj.) 618 , Jai Ram Vs. State of Rajasthan, 2002(1) Cr.L.R. (Raj.) 144 , Lal Ram v. State of Rajasthan, 2002 (1) Cr.L.R. (Raj.) 692 and Mohan Das v. State of Rajasthan, 2002 (1) Cr.L.R. (Raj.) 759. 7. Per contra, learned Public Prosecutor supported the impugned judgment and took us to the material on record to show that the evidence adduced at the trial by the prosecution was rightly appreciated by the learned trial Judge and appellants have been rightly convicted and sentenced. 8. We have been taken through the entire evidence and the circumstances of the case. From the material on record it appears that there is a central evidence consisting of four eye witnesses namely Shoba Ram (Pw.2), Suraj Mal (Pw.3), Ram Kishan (Pw.4) and Amar Singh (Pw.5), who were allegedly present at the place of occurrence. The evidence is sought to be corroborated by Hazari Lal Khatana, S.I. (Pw.7), who recovered the weapons of offence at the instance of the appellant. 9. The evidence is sought to be corroborated by Hazari Lal Khatana, S.I. (Pw.7), who recovered the weapons of offence at the instance of the appellant. 9. Informant Shobha Ram (Pw.2) in his deposition stated that all the accused came together armed with lathis, Sariyas, Pharsis and Tanchias and Lachchu inflicted lathi blow on his right shoulder. When he made attempt to run Ram Khilasi @ Moji gave lathi blow on his left foot. Hearing his cries when uncle Manohar Lal came to intervene Phool Singh exhorted to leave the informant and kill Manohar Lal. Phool Singh then gave two three blows with Sariya (iron rod) on the head of Manohar Lal, Bachchu gave Pharsi blow while Babli inflicted blow with Tanchia on the head of Manohar Lal as a result of which Manohar Lal fell down. Since Manohar Lal was surrounded by the accused, it could not be noticed as to whether the injuries with Pharsi and Tanchia were caused by blunt side or sharp side. All the accused indiscriminately inflicted injuries on the person of Manohar Lal who was removed to Malakheda Hospital, from where he was referred to Hospital at Alwar. Manohar Lal died on the next day. Suraj Mal (Pw.3), Ram Kishan (Pw.4) and Amar Singh (pw.5) corroborated the testimony of Shobha Ram (Pw.2).Appeal No. 488/2001 : 10. At this juncture it will be appropriate to scan the facts of Sessions Case No. 45/2001. It appears that in regard to the incident narrated as above Bachchu Singh (appellant of Appeal No. 500/2001) lodged a report with the Police Station Malakheda with the averments that while his family members Ram Khiladi, Babli, Jai Kishan, Lachchu, Mst. Kishni, Mst. Keshanti and Rama were at their house Manohar Lal, Shobha Ram Narendra, Nandu, Smt. Kamlesh, Smt. Beena, Smt. Ganeshi, Smt. Bhamboli and Kabira armed with Farsi, Lathi, Spade and Saria attacked them and caused injuries. Case under Sections 147, 148, 149, 323 and 452 Indian Penal Code was registered and after usual investigation charge sheet was filed only against Shobha Ram, Narendra, Kabira and Nandkishore. Dr. S.K. Jain (Pw.9), who was posted as Medical Officer in the Primary Health Center Malakheda, examined the injuries sustained by Smt. Kishni, Rama, Ram Khiladi, Jai Kishan, Smt. Keshanti and Babli. As per injury reports Ex.P-6 to Ex-P11, Kishni sustained as many as six injuries, out of which injury No. 2 was found grievous. Dr. S.K. Jain (Pw.9), who was posted as Medical Officer in the Primary Health Center Malakheda, examined the injuries sustained by Smt. Kishni, Rama, Ram Khiladi, Jai Kishan, Smt. Keshanti and Babli. As per injury reports Ex.P-6 to Ex-P11, Kishni sustained as many as six injuries, out of which injury No. 2 was found grievous. Rama received five injuries, out of which three were incised wounds, whereas Ram Khiladi sustained eight injuries, jai Kishan and Babli received two injuries each. Rama (Pw.2) in his testimony deposed that Shobha Ram gave two axe-blows on his head, Nandu caused injury on his right hand with Tanchia, Kabira gave blow with Sariya on his right shoulder and Manohar Lal inflicted lathi blow on his left elbow. Smt. Keshanti (Pw.3) supported the testimony of Rama and stated that when she intervened Shobha Ram gave axe blow from the blunt side on her head whereas Narendra inflicted blow with lathi on her right hand. Other injured witnesses namely Kishni (Pw.4), Ram Khiladi ) Mauji (Pw.5), Babli (Pw.12) and Jai Kishan (Pw.14) also corroborated the statements of Rama and Smt. Keshanti. Learned trial Judge discussed the evidence and found Shobha Ram guilty under Sections 148, 325, 324 and 323 Indian Penal Code. Whereas charges under Sections 148, 324, 323 and 325/149 Indian Penal Code were found established against Nandu @ Nandkishore, Kabira and Narendra.CONCLUSION : 11. On a close and comparative scrutiny of the evidence adduced in both the Session cases and having appreciated the rival submissions, we find that there was a free fight between two groups. Manohar Lal who was a member of one group died as a result of injuries received during the fight whereas Smt. Keshanti, Rama, Ram Khiladi, Jai Kishan, Smt. Kishni and Babli, who were the members of another group received sharp and grievous injuries. It is well settled that if two persons or two factions voluntarily and with determined intention came out to fight and in fact fight and it is not possible to ascertain with reasonable certainty as to who was the aggressor, no right of private defence accrues and the participants are responsible for their individual acts. It is well settled that if two persons or two factions voluntarily and with determined intention came out to fight and in fact fight and it is not possible to ascertain with reasonable certainty as to who was the aggressor, no right of private defence accrues and the participants are responsible for their individual acts. In Vishvas Aba Kurane v. State of Maharashtra AIR 1978 Supreme Court 414 their Lordships of the Supreme Court held that in a free fight no right of private defence is available to either party and each individual is responsible for his own acts. 12. As already noticed that when fight between Shobha Ram and Lachchu started, deceased Manohar Lal came to the place of incident armed with lathi and inflicted lathi blow on the left elbow of Rama. Phool Singh gave blows with iron rod on the head of Manohar Lal. As per post-mortem report Manohar Lal sustained two ante mortem lacerated wounds on his head. No sharp edged injury attributed to Babli and Bachchu was seen by the Autopsy Surgeon. Thus we are of the view that charges under Sections 302/149, 147 and 3231149 Indian Penal Code against Babli, Ram Kumar, Mauji, Billu, Lachchu and Bachchu could not be proved beyond reasonable doubt. There was no unlawful assembly and none of the person present at the scene of occurrence had common intention to kill Manohar Lal. Even the act of Phool Singh do not come within the purview of any clause appended to Section 300 Indian Penal Code. In the facts and circumstances of the case Phool Singh could not have been convicted simplicitor under Section 302 Indian Penal Code. Since Phool Singh acted suddenly on receiving grave provocation by Manohar Lal, Phool Singh can be held guilty under Section 304 Part II Indian Penal Code. So far as guilt of Shobha Ram, Nandu @ Nandkishore, Kabira and Narendra is concerned we from the careful appraisal of the material on record find that in the FIR Manohar Lal, Shobha Ram, Narendra, Nandu, Smt. Kamlesh, Beena, Ganeshi, Bhamboli and Kabira were named as the assailants and no specific allegation for causing particular injury was made. The Investigating Officer filed charge sheet only against Kabira, Narendra, Nandu and Shobha Ram. The Investigating Officer filed charge sheet only against Kabira, Narendra, Nandu and Shobha Ram. Thereafter at the trial witnesses namely Rama, Bachchu Singh, Keshanti, Kishni, Ram Khiladi, Babli and Jai Kishan deposed against Shobha Ram, Nandu @ Nand Kishore, Kabira and Narendra and levelled specific allegations against them. In such a situation we are of the opinion that charges framed against Shobha Ram, Nandu @ Nandkishore, Kabira and Narendra could not be established and they are entitled to benefit of doubt. Learned trial judge in our opinion did not properly appreciate the evidence adduced at the trial and we find ourselves unable to accept the impugned finding. 13. For these reasons we dispose of the instant appeals in he following terms : (i) We allow the appeal (Appeal No.500/2001) of appellants Babli, Ram Kumar, Mauji,, Billu, Lachchu and Bachchu and set aside their conviction and sentence rendered vide impugned judgment dated July 24, 2001 in Sessions Case No. 109/2001 and acquit them of the charges under sections 302/149, 323/149 and 147 Indian Penal Code. Appellants Ram Kumar, Maui, Billy and Lachchu are on bail, they need not surrender and their bail bonds stand discharged. Appellants Babli and Bachchu, who are in jail, shall be set at liberty forthwith if not required to be detained in any other case. (ii) We partly allow the appeal of appellant Phool Singh (Appeal No. 500/2001) and instead of Section 302, we convict him under Section 304 Part II Indian Penal Code. Since Phool Singh has been in the custody for a period of more than five years the ends of justice would be met in sentencing him to the period already undergone by him in confinement. Appellant Phool Singh, who is in jail, shall be set at liberty forthwith if not required to be detained in any other case. (iii) We allow the appeal (Appeal No. 488/2001) of Shobha Ram, Nandu @ Nand Kishore, Kabira and Narendra and set aside their conviction and sentence rendered vide impugned judgment dated July 24, 2001 in Sessions Case No. 45/2001 and acquit them of all the charges levelled against them. Appellants Shobha Ram, Nandu @ Nand Kishore, Kabira and Narendra are on bail, they need not surrender and their bail bonds stand discharged. (iv) Impugned judgments of learned trial judge stand modified as indicated above. Appeals disposed of. *******