JUDGMENT 1. - Both the above-mentioned appeals are being decided by this common judgment as both of them have been preferred by the accused-appellants against the judgment and order dated 21.2.2002 passed by the learned Addl. Sessions Judge (Fast Track), Jalore by which he convicted and sentenced the accused-appellants in the following manner : Name of accused appellants Convicted under section Sentence awarded to each accused appellant Accused-appellants of appeal No. 227/2002 1. Jalaram 147 IPC Two years SI and to pay a fine of Rs. 5,000/-, in default of payment of fine, to further undergo SI for one month. 302 IPC Imprisonment for life & to pay a fine of Rs. 2,000/- in default of payment of fine, to further undergo SI for six months. 323/149 IPC One year SI and to pay a fine of Rs. 500/-, in. default of payment of fine, to further undergo one month SI. 2. Bhagirath 3. Kisanaram 147 IPC Two years SI and to pay a fine of Rs. 5,000/-, in default of payment of fine, to further undergo SI for one month. 302/149 IPC Imprisonment for life & to pay a fine of Rs. 2,000/- in default of payment of fine, to further undergo SI for six months. 323/149 IPC One year SI and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo one month SI. Accused-appellants of appeal No. 242/2002 1. Bhikaram 2. Poonma 3. Naringa 147 IPC Two years SI and to pay Ram a fine of Rs. 5,000/-, in default of payment of fine, to further undergo SI for one month. 302/149 IPC Imprisonment for life & to pay a fine of Rs. 2,000/- in default of payment of fine, to further undergo SI for six months. 323/149 IPC One year SI and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo one month SI. All the above substantive sentences were ordered to run concurrently. 2. It may be stated here that by the same judgment and order dated 21.2.2002, the learned Addl. Sessions Judge (Fast Track), Jalore acquitted three accused persons, namely, Sonaram, Ghamanda and Devaram of all the charges framed against them i.e. 147, 302/149 & 323/149 IPC. 3. All the above substantive sentences were ordered to run concurrently. 2. It may be stated here that by the same judgment and order dated 21.2.2002, the learned Addl. Sessions Judge (Fast Track), Jalore acquitted three accused persons, namely, Sonaram, Ghamanda and Devaram of all the charges framed against them i.e. 147, 302/149 & 323/149 IPC. 3. The facts giving rise to these two appeals, in short, are as follows: On 14.3.1998 at about 2.00 p.m., PW-5 Pratapa lodged a written report Ex.P/1 before PW-11 Tararam, who was at that time SHO, Police Station Bagoda District Jalore stating inter alia that on that day at about 9.00 a.m., he was going alongwith his brothers PW-1 Hanja, Vasna (hereinafter referred to as `the deceased') and PW-4 Raimal from his dhani towards Oran for the purpose of grazing cattle and when they were passing through the field of accused-Sonaram (who was acquitted by the learned trial Judge), the accused-appellants Jalaram, Bhagirath, Kisana Ram, Naringa, Poonma Ram and Bhikaram, who were hiding themselves in the field, appeared to beat us and at that time, these accused-appellants were having lathies in their hands and out of them, the accused-appellant-Jalaram gave a lathi blow on the head of the deceased and the accused-appellant- Bhagirath gave a lathi blow on the head of PW-1 Hanja and the accused-appellant-Kisana Ram gave lathi blow on his leg (PW-5 Pratapa), when they intervened to save deceased. It was further stated in the report Ex.P/1 that all the aforesaid accused-appellants severally beat deceased with lathies, as a result of which, he died on the spot. On this report Ex.P/1, police chalked out regular FIR Ex.P/2 and started investigation. During investigation, site plan Ex.P/4 and site description memo Ex.P/3 were got prepared by PW-11 Tararam. The post-mortem of the dead body of the deceased was got conducted by PW-2 Dr. K.K. Goswami and PW-7 Dr. Kailash Dan and the post-mortem report is Ex.P/8. PW- 5 Pratapa was also got medically examined and his injury report is Ex.P/9, which shows that he received five injuries. PW-1 Hanja was also got medically examined and his injury report is Ex.P/10, which shows that he received four injuries. After usual investigation, police submitted challan against the accused-appellants-Kisana Ram and Naringa and accused-Sonaram, Ghamanda and Deva Ram (who were acquitted by the learned trial Judge) for the offence u/ss. PW-1 Hanja was also got medically examined and his injury report is Ex.P/10, which shows that he received four injuries. After usual investigation, police submitted challan against the accused-appellants-Kisana Ram and Naringa and accused-Sonaram, Ghamanda and Deva Ram (who were acquitted by the learned trial Judge) for the offence u/ss. 147, 148, 302, 323 r/w 149 IPC in the Court of Magistrate and from where the case was committed to the Court of Session. On 21.9.1999, the learned Addl. Sessions Judge, Bhinmal framed charges for the offence u/ss. 147, 302/149, 323/149 against the accused-appellants-Kisana Ram and Naringa and accused-Sonaram, Ghamanda and Devaram (who were acquitted by the learned trial Judge). The charges were read over and explained to them and they denied the charges and claimed trial. It may be stated here that during the course of trial, an application u/s. 319 Cr.P.C. was filed by the prosecution on 1.3.2000 with the prayer that cognizance against the accused-appellants-Jalaram, Bhagirath, Poonmaram and Bhikharam be also taken for the offence u/ss. 302, 302/149, 147 IPC and that application was allowed by the learned trial Judge vide order dated 14.11.2000 and cognizance was also taken against the accused-appellants-Jalaram, Bhagirath, Poonmaram and Bhikharam and accordingly, thereafter, on 6.12.2000 amended charges were framed by the learned Addl. Sessions Judge, Bhinmal against the accused-appellants-Jalaram, Bhagirath, Kisana Ram, Bhikaram, Poonma Ram and Naringa and other accused persons, namely, Sonaram, Ghamanda and Devaram (who were acquitted by the learned trial Judge) in the following manner : Name of accused-persons Accused-appellants Charges 1. Jalaram 147, 302/149 & 323/149 2. Bhagirath -do- 3. Kisana Ram -do- 4. Bhikaram -do- 5. Poonma Ram -do- 6. Naringa -do- Accused who were acquitted by the learned trial Judge 7. Sona Ram -do- 8. Ghamanda -do- 9. Devaram -do- The amended charges were read over and explained to the accused persons, who pleaded not guilty and claimed trial. During the course of trial, the prosecution got examined as many as 11 witnesses and exhibited several documents. Thereafter, statements of the accused persons u/s. 313 Cr.P.C. were recorded. In defence, eight witnesses were produced by the accused persons and the accused-appellants-Jalaram, Bhikharam, Poonmaram and Bhagirath took the plea of alibi that they were not present in the village on the date of occurrence and they were falsely implicated. After conclusion of trial, the learned Addl. Thereafter, statements of the accused persons u/s. 313 Cr.P.C. were recorded. In defence, eight witnesses were produced by the accused persons and the accused-appellants-Jalaram, Bhikharam, Poonmaram and Bhagirath took the plea of alibi that they were not present in the village on the date of occurrence and they were falsely implicated. After conclusion of trial, the learned Addl. Sessions Judge (Fast Track), Jalore through impugned judgment and order dated 21.2.2002, acquitted the accused persons, namely, Sonaram, Ghamanda and Devaram of all the charges framed against them, but convicted the accused-appellant-Jalaram for the offence u/ss. 147, 302 and 323/149 IPC and other accused-appellants-Bhagirath, Kisanaram, Bhikaram, Poonma Ram and Naringa for the offence u/ss. 147, 302/149 & 323/149 IPC and sentenced them in the manner as indicated above holding inter alia:- (i) That the plea of alibi taken by the accused-appellants- Jplaram, Bhikharam, Poonmaram and Bhagirath that they were not present on the date of occurrence in the village was rejected by the learned trial Judge. (ii) That no doubt the accused-appellant-Kisana Ram was having one injury on his head and that injury was not explained by the witnesses of the prosecution, but it would not affect the case of the prosecution. (iii) That the case of the defence that in the field of accused- Sonaram (who was acquitted by the learned trial Judge), there was no public way was rejected by the learned trial Judge and on the contrary, it was held that there was a way passing through the field of accused-Sona Ram, which passes from the village Sewri to village Punasa and that was a public way. (iv) That the case of the defence that it was a case of free fight was rejected by the learned trial Judge. (v) That the case of the defence that the so-called injuries inflicted on the person of deceased would make out a case for the offence u/s. 325 IPC and not 302 IPC was rejected by the learned trial Judge. (vi) That all the accused-appellants were members of unlawful assemble and the common object of which, was to murder deceased. Aggrieved from the said judgment and order dated 21.2.2002 passed by the learned Addl. Sessions Judge (Fast Track), Jalore, the accused-appellants have preferred these two appeals. 4. (vi) That all the accused-appellants were members of unlawful assemble and the common object of which, was to murder deceased. Aggrieved from the said judgment and order dated 21.2.2002 passed by the learned Addl. Sessions Judge (Fast Track), Jalore, the accused-appellants have preferred these two appeals. 4. In these appeals, the main contentions of the learned counsel for the accused-appellants are as follows : (i) That since the incident took place in the field of accused-Sonaram (who has been acquitted by the learned trial Judge), therefore, when the complainant party alongwith their revar (cattle) entered in the field, there was right of private defence in favour of the accused party especially when crop was there and since the complainant party entered with cattle, which were many in number, therefore, there was possibility of damaging the standing crop. Hence, from every point of view, accused party had right of private defence to defend their field from being damaged. (ii) That in this case, members of the accused party, namely, accused-Sonaram (who has been acquitted by the learned trial Judge) and accused-appellant-Kisana Ram have also received some injuries as is evident from their injury reports Ex.D/4 and Ex.D/5 respectively and since the same have not been explained by the prosecution witnesses, therefore, it was a case of free fight. Hence, the accused-appellants could have not been convicted with the aid of Section 149 IPC. (iii) That apart from this, in this case, there is no evidence that each and every accused-appellant gave lathi blow on the person of the deceased and therefore, to say that there was unlawful assembly of the accused-appellants and the common object of which was to murder deceased, was wrong and the findings of the learned trial Judge in this respect are palpably erroneous one and they should be set aside. 5. On the other hand, the learned Public Prosecutor and the learned counsel for the complainant have supported the impugned judgment and order. 6. We have heard the learned counsel for the accused-appellants, learned Public Prosecutor and the learned counsel for the complainant and gone through the record of the case. 7. Before proceeding further, first medical evidence of this case has to be seen. 8. The post-mortem report of the deceased is Ex.P/8 and for proving the same, the prosecution produced PW-2 Dr. K.K. Goswami and PW-7 Dr. Kailash Dan. 9. PW-2 Dr. 7. Before proceeding further, first medical evidence of this case has to be seen. 8. The post-mortem report of the deceased is Ex.P/8 and for proving the same, the prosecution produced PW-2 Dr. K.K. Goswami and PW-7 Dr. Kailash Dan. 9. PW-2 Dr. K.K. Goswami and PW-7 Dr. Kailash Dan in their statements recorded in Court have stated that on 14.3.1998 at about 5.45 p.m., they conducted the post-mortem of the dead body of the deceased and found the following injuries on his body : (i) Lacerated wound 7 cm x 3 cm x bone deep with fracture of bone on right side of parieto temporal region. (ii) Abrasion 4" x 4" on left thigh on anterior side. They have further stated that the injury on the head of the deceased was sufficient in the ordinary course of nature to cause death. They have further stated that the cause of death of the deceased was coma due to intra cranial haemorrhage because of head injury. They have proved the post-mortem report Ex.P/8. 10. Thus, from the statement of PW-2 Dr. K.K. Goswami and PW-7 Dr. Kailash Dan, it is very much clear that the deceased received two injuries and the cause of death of the deceased was coma due to intra cranial haemorrhage because of head injury and thus, the death of the deceased may be classified as homicidal. 11. In this case, PW-5 Pratapa was also got medically examined by PW-7 Dr. Kailash Dan and his injury report is Ex.P/9, which shows that he received five simple injuries. The injury report Ex.P/9 has been proved by PW-7 DR. Kailash Dan. 12. Thus, it is clear that PW-5 Pratapa received five simple injuries as mentioned in the injury report Ex.P/9. 13. Similarly, PW-1 Hanja was also got medically examined by PW-7 Dr. Kailash Dan and his injury report is Ex.P/10, which show that he received four simple injuries. The injury report Ex.P/10 has proved by PW-7 Dr. Kailash Dan. 14. Thus, it is clear that PW-1 Hanja received four simple injuries as mentioned in the injury report Ex.P/10. 15. Before proceeding further, the injuries received by the members of the accused party, namely, accused-Sonaram (who has been acquitted by the learned trial Judge) and the accused-appellant-Kisana Ram should also be mentioned here. 16. Kailash Dan. 14. Thus, it is clear that PW-1 Hanja received four simple injuries as mentioned in the injury report Ex.P/10. 15. Before proceeding further, the injuries received by the members of the accused party, namely, accused-Sonaram (who has been acquitted by the learned trial Judge) and the accused-appellant-Kisana Ram should also be mentioned here. 16. The accused-Sonaram (who has been acquitted by the learned trial Judge) has received one simple injury as is evident from his injury report Ex.D/4 and the accused-appellant-Kisana Ram also received one simple injury as is evident from his injury report Ex.D/5. What would be the effect of these injuries, it would be discussed later on. 17. In this case, there are two star witnesses, namely, PW-5 Pratapa, who lodged the report Ex.P/1 and PW-1 Hanja and since both these witnesses are injured witnesses, therefore, their presence on the scene cannot be doubted and for that, the decisions of the Hon'ble Supreme Court in Avdesh & Ors. v. State of U.P., AIR 1995 SC 375 , Ram Kumar v. State of Haryana, 1995 SCC (Cri) 355 and Majju v. State of M.P., JT 2001(9) SC 39 may be referred to. 18. It may be stated here that when dealing with the serious question of the guilt or innocence of persons charged with crime, the following general rules may be helpful to the Court for determining whether the evidence in a particular case is admissible or not: (1) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor. (2) The evidence must be such as to exclude, to a moral certainty, every reasonable doubt of the guilt of the accused. (3) In matters of doubt it is safer to acquit than to condemn, since it is better that several guilty persons should escape than that one innocent person should suffer. (4) There must be clear and unequivocal proof of the corpus delicit (substance of the offence). (5) The hypothesis of the delinquency should be consistent with all the facts proved. 19. Keeping the above principles in mind, the statements of the star witnesses PW-5 Pratapa and PW-1 Hanja are being examined. 20. PW-5 Pratapa is that witness, who lodged the report Ex.P/1 and in the examination-in-chief, he has stated : (i) That the accused-appellant-Jalaram gave lathi blow on the head of the deceased. 19. Keeping the above principles in mind, the statements of the star witnesses PW-5 Pratapa and PW-1 Hanja are being examined. 20. PW-5 Pratapa is that witness, who lodged the report Ex.P/1 and in the examination-in-chief, he has stated : (i) That the accused-appellant-Jalaram gave lathi blow on the head of the deceased. (ii) That accused-appellant-Kisana Ram gave lathi blow on his leg. and the accused-appellant-Naringa gave lathi blow on his shoulder. (iii) That accused-appellant-Naringa also gave lathi blow to PW1 Hanja. (iv) That all the six accused-appellants, namely, Jalaram, Bhagirath, Kisana Ram, Bhikaram, Poonma Ram and Naringa were present in the field. (v) That he and PW-1 Hanja were saved by PW-3 Jethu Singh. (vi) That PW-4 Raimal ran away from the scene and he did not intervene in the matter. (vii) That accused-Sonaram, Ghamanda and Devaram (who have been acquitted by the learned trial Judge) were standing at a distance and they did not take part in the beating, but they were crying "Maro-Maro". In cross-examination, he admits the following facts:- (i) That the names of accused-Ghamanda, Devaram and Sonaram (who were acquitted by the learned trial Judge) were not mentioned by him in the report Ex.P/1 because they did not cause any beating and further, the fact that these three accused persons were crying "Maro-Maro" was also not mentioned by him in the report Ex.P/1. (ii) That except accused-appellant-Jalaram, no other accused persons gave beating to deceased. (iii) That he did not see any injury on the person of the accused-appellant-Kisana Ram and accused-Sonaram (who has been acquitted by the learned trial Judge). 21. PW-1 Hanja is another injured witness and in his examination- in-chief, he has stated : (i) That all the accused-appellants, namely, Jalaram, Bhagirath, Kisana Ram, Bhikaram, Poonmaram and Naringa were in the field of the accused-Sonaram (who has been acquitted by the learned trial Judge). (ii) That accused-appellant-Jalaram gave lathi blow on the head of the deceased, as a result of which he fell down. (iii) That accused-appellant-Kisana Ram gave lathi blow on the leg of PW-5 Pratapa. (iv) That accused-appellant-Naringa gave lathi blow on his head. (v) That PW-3 Jethu Singh and Uksingh came there and they saved him and PW-5 Pratapa, but PW-4 Raimal ran away from the scene, when fighting started. (iii) That accused-appellant-Kisana Ram gave lathi blow on the leg of PW-5 Pratapa. (iv) That accused-appellant-Naringa gave lathi blow on his head. (v) That PW-3 Jethu Singh and Uksingh came there and they saved him and PW-5 Pratapa, but PW-4 Raimal ran away from the scene, when fighting started. (vi) That there is a way in the field of accused-Sonaram (who has been acquitted by the learned trial Judge). (vii) That accused-Devaram, Sonaram and Ghamanda (who were acquitted by the learned trial Judge) did not cause any injury to the deceased. In cross-examination, he admits the following facts : (i) That deceased and PW-5 Pratapa are his real brothers. (ii) That it is correct to say that at the time of alleged incident, they alongwith revar (cattle) were going to gochar land of Punasa. (iii) That for reaching gochar land of punasa, there is a way in the field of accused-Sonaram (who has been acquitted by the learned trial Judge). (iv) That at the time when the alleged incident took place, their goats were going on the way. (v) That accused-appellant-Jalaram gave lathi blow on the head of the deceased straightway and other accused persons did not cause any injury to the deceased. (vi) That the fact that accused-Sonaram, Devaram and Ghamanda (who were acquitted by the learned trial Judge) were also saying "Maro-Maro" was not told by him before the police. (vii) That the fact that the complainant party caused injuries to accused-Sonaram (who has been acquitted by the learned trial Judge) and the accused-appellant-Kisanaram Ram was denied by him. (viii) That PW-4 Raimal ran away from the scene as soon as the fighting started. 22. Thus, from the statements of star witnesses PW-5 Pratapa and PW- 1 Hanja, the following facts have emerged : (i) That at the time of alleged incident, six accused-appellants, namely, Jalaram, Bhagirath, Kisana Ram, Bhikaram, Poonma Ram and Naringa were present. (ii) That the alleged incident took place when PW-1 Hanja, PW- 5 Pratapa and deceased alongwith their revar (cattle) were passing through the way, which was in the field of accused-Sonaram (who has been acquitted by the learned trial Judge. (iii) That accused-appellant-Jalaram caused lathi blow on the head of the deceased. (iv) That except accused-appellant-Jalaram, no other accused persons caused any injury to the deceased. (v) That accused-appellant-Kisana Ram caused lathi blow to PW- 5 Pratapa. (iii) That accused-appellant-Jalaram caused lathi blow on the head of the deceased. (iv) That except accused-appellant-Jalaram, no other accused persons caused any injury to the deceased. (v) That accused-appellant-Kisana Ram caused lathi blow to PW- 5 Pratapa. (vi) That accused-appellant-Naringa caused lathi blow to PW-1 Hanja. (vii) That PW-1 Hanja and PW-5 Pratapa have not explained the injuries received by accused-appellant-Kisana Ram and accused- Sonaram (who has been acquitted by the learned trial Judge). (viii) That there is a way in the field of accused-Sonaram (who has been acquitted by the learned trial Judge) for reaching gochar land of Punasa and that fact has also been stated by other prosecution witnesses. 23. The question for consideration is whether in view of the fact that though the names of the accused-appellants, namely, Bhagirath, Kisana Ram, Bhikaram, Poonmaram and Naringa are found in the report Ex.P/1 lodged by PW-5 Pratapa, but they did not give any beating to the deceased, they can be convicted for the offence u/s. 302 IPC with the aid of Section 149 IPC or no or whether before accused-appellant Jalaram gave a lathi blow on the head of the deceased, they had formed unlawful assembly, the common object of which, was to murder deceased or not. 24. Before recording a conviction u/s. 147 or 148 IPC and applicability of Section 149 IPC, the following essential ingredients must be satisfied ,by the prosecution : (i) That five or more persons were assembled. (ii) That such assembly was unlawful when it was convened or subsequently became unlawful, having any one of the five objects specified in Section 141. (iii) That such object was the common object of those composing such assembly. (iv) That the accused, or any member of such unlawful assembly, used force or violence. (v) That such force or violence was used in the prosecution of such common object. (vi) That the accused was armed with a deadly weapon, or with something which was likely to cause death, when used as a weapon of offence. 25. Section 149 IPC creates a specific offence and deals with the punishment of that offence. Section 149 IPC makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. 25. Section 149 IPC creates a specific offence and deals with the punishment of that offence. Section 149 IPC makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. The section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. 26. It is well settled that mere presence of persons does not make them members of unlawful assembly. For that two decisions of the Hon'ble Supreme Court in (1) Baladin & Ors. v. State of Uttar Pradesh, AIR 1956 SC 181 and (2) Bishambar Bhagat & Ors. v. The State of Bihar, AIR 1971 SC 2381 may be referred to. 27. When there is unlawful assembly, at that time, it becomes difficult for the witnesses to describe accurately the part played by each one of the assailants and thus, in such cases, criminal Courts have to do their best in dealing with such cases and duty is cast upon the criminal Court to sift the evidence carefully and decide which part of it is true and which is not. For that, the decision of the Hon'ble Supreme Court in Masalti & Ors. v. The State of U.P., AIR 1965 SC 202 may be seen. 28. Before recording conviction with the aid of Section 149 IPC, act done by each of the accused must be shown to have been committed to accomplish common object. For that the decision of the Hon'ble Supreme Court in Allauddin Mian & Ann v. State of Bihar, AIR 1989 SC 1456 may be seen. Thus, if there is no participation, then no liability can be fastened. 29. For the purpose of application of Section 149, the prosecution has to prove the presence and participation of each of the accused in unlawful assembly, as held by the Hon'ble Supreme Court in Nallamsetty Yanadaiah & Ors. v. State of Andhra Pradesh, AIR 1993 SC 1175 . 30. It is settled law that mere presence of a person at the place where the members of unlawful assembly had gathered for carrying out their illegal common objects does not make him a member of such assembly. The presumption of innocence would preclude such a conclusion. v. State of Andhra Pradesh, AIR 1993 SC 1175 . 30. It is settled law that mere presence of a person at the place where the members of unlawful assembly had gathered for carrying out their illegal common objects does not make him a member of such assembly. The presumption of innocence would preclude such a conclusion. Whether a person was or was not a member of unlawful assembly is a question of fact. 31. When no party attacks the members of the opposite party at the commencement of the occurrence and there is no evidence regarding formation of unlawful assembly with a particular common object and the fight takes place without premeditation, it can be said to be a sudden fight and no unlawful assembly can be said to have been formed in such cases and the accused cannot be convicted u/s. 149 IPC. All the persons must be held responsible for their individual acts and not vicariously liable for acts of others. 32. In the case of groups rivalries and enmities it often happens that there is a general tendency to rope in as many persons as possible as having participated in an assault. The Courts have, therefore, to be very careful and if after a close scrutiny of the evidence, a reasonable doubt arises with regard to the participation of any of those who have been roped in, the Courts should give the benefit of doubt to them. 33. Keeping the above principles in mind, the present case is being examined on the point whether Section 149 IPC has been rightly applied by the learned trial Judge or not or whether each accused-appellant was a member of unlawful assembly, the common object of which, was to murder deceased or not. 34. In our considered opinion, looking to the entire facts and circumstances of the case, just stated above, the finding of the learned trial Judge that Section 149 IPC is applicable in the present case does not appear to be correct one as presence of accused-appellants other than Jalaram was natural one as the field where the incident took place belonged to one of the accused, namely, accused- Sonaram (who has been acquitted by the learned trial Judge) and furthermore, except accused-appellant-Jalaram, no other accused-appellants took part in beating deceased. Thus, when the accused-appellants other than Jalaram have not taken any part in the alleged incident so far as beating of deceased is concerned and since participation of each of the accused is missing in the present case, therefore, in these circumstances, it cannot be said they formed unlawful assembly, the common object of which was to murder deceased. 35. In Sukhan Raut & Ors. v. State of Bihar, 2002 Cr.L.J. 560 , the Hon'ble Supreme Court observed that only accused who caused the injury and the one who instigated him to inflict injury can be held to share a common intention and not other persons. 36. In the present case, the fact that other accused-appellants instigated accused-appellant-Jalaram to inflict injury on the deceased is also missing. Therefore, from every point of view, mere presence or existence of accused - appellants-Bhagirath, Kisana Ram, Bhikaram, Poonma Ram and Naringa at the place of occurrence, would not make them members of unlawful assembly, the common object of which, was to murder deceased and thus, the charge for the offence u/s. 149 IPC cannot be said to have been proved by the prosecution as prosecution has failed to prove that there was unlawful assembly, the common object of which was to murder deceased and therefore, the accused-appellants cannot be convicted with the help of Section 149 IPC and consequently, they are also entitled to acquittal for the offence u/s. 147 IPC. Thus, each accused-appellant would be liable for the injury caused by him. 37. Hence, the findings of the learned trial Judge convicting the accused- appellants with the help of Section 149 IPC cannot be sustained and further, the findings of conviction recorded by the learned trial Judge for the offence u/ss. 302/149 & 147 IPC against the accused-appellants-Bhagirath, Kisanaram, Bhikaram, Poonmaram and Naringa and for the offence u/s. 147 IPC against the accused-appellant - Jalaram cannot be sustained and liable to be set aside and they are entitled to acquittal for the said offences. 38. 302/149 & 147 IPC against the accused-appellants-Bhagirath, Kisanaram, Bhikaram, Poonmaram and Naringa and for the offence u/s. 147 IPC against the accused-appellant - Jalaram cannot be sustained and liable to be set aside and they are entitled to acquittal for the said offences. 38. So far as the accused-appellant-Jalaram is concerned, there is ample evidence in this case that he was present on the scene as first his name is found in the report Ex.P/1 and later on, both the star witnesses, namely, PW-5 Pratapa and PW-1 Hanja have also narrated his name and not only this, they have categorically stated that he was the person, who gave beating to the deceased. Therefore, presence of the accused-appellant-Jalaram on the scene cannot be doubted in any manner and the prosecution has been able to prove the fact that the injuries to the deceased as mentioned in the post-mortem report Ex.P/8 were caused by the accused-appellant-Jalaram. 39. When the presence of the accused-appellant-Jalaram is found proved, the case of defence that he was not present on the scene and the plea of alibi, which was taken by him, were rightly rejected by the learned trial Judge an on that aspect, the learned trial Judge has discussed the evidence in detail an we would not repeat here, but the conclusion is that the plea of alibi taken by the accused-appellant-Jalaram was rightly rejected by the learned trial Judge 40. The next question for consideration is whether right of private defence was available to the accused-appellant-Jalaram or not. 41. The right of private defence is a defensive right. It is neither a right c aggression, nor of reprisal. The Hon'ble Supreme Court in Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660 has enumerated the following circumstance in which this right should be exercised : "The Code excepts from the operation of its penal classes the acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed by several principles and limitations. The most salient of them concerning the defence of body are as under : Firstly, there is no right of private defence against an act which is not in itself an offence under the Code; Secondly, the right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is coterminous with the duration of such apprehension (Sec. 102); that is to say, right avails only against a danger imminent, present and real; Thirdly, it is a defensive and not a punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence (Sec. 99). In other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weight with golden scales what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bona fide defender if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack. It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack; Fourthly, the right extends to the killing of the actual or potential assailant when there is reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of Section 100. The combined effect of the first two clauses is that taking the life of the assailant would be justified on the plea of private defence if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. In other words, a person who is in imminent and reasonable danger of losing his life or limb may, in the exercise of right of self-defence, inflict any harm, even extending to death, on his assailant either when the assault is attempted or directly threatened. In other words, a person who is in imminent and reasonable danger of losing his life or limb may, in the exercise of right of self-defence, inflict any harm, even extending to death, on his assailant either when the assault is attempted or directly threatened. The principle is also subject to the preceding' rule that the harm or death inflicted to avert the danger is not substantially disproportionate to and incommensurate with the quality and character of the perilous act or threat intended to be repelled; Fifthly, there must be no safe or reasonable mode of escape by retreat for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailant; Sixthly, the right being, in essence, a defensive right, does not accrue and avail where there is `time to have recourse to the protection of the public authorities'." 42. The right of private defence is available to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation. The necessity must be present, real or apparent. The right of private. defence has two aspects. In one aspect, the act done by the accused is fully excused and in another aspect, the accused has to prove that he has not exceeded his right. 43. It may be stated here that no right of private defence is available to an aggressor and the restrictions which are imposed on the exercise of this right are mentioned in Cl. (IV) of Section 99 IPC, where it is stated that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. In the case of injuring another in self defence, there must be two things : (1) That there must be no more harm inflicted than is necessary for the purpose of defence; and (2) That there must be a reasonable apprehension of danger to the body from the attempt or threat to commit some offence and the right does not commence until there is the reasonable apprehension. 44. Keeping the above principles in mind, the facts of the present case are being examined. 45. 44. Keeping the above principles in mind, the facts of the present case are being examined. 45. In the present case, it may be stated here that there was a right of way in the field of accused-Sonaram (who has been acquitted by the learned trial Judge) and when the members of the complainant party alongwith their revar (cattle) were passing through that way, it cannot be said that there was reasonable apprehension of danger either to the body or damaging the property or crops and apart from this, no doubt the accused-appellant-Kisana Ram and the accused-Sonaram (who has been acquitted by the learned trial Judge) received one-one injury each, but they were simple in nature and from their simple injuries, it cannot reasonably be inferred or presumed that there was any reasonable apprehension of danger to the body of the accused party and therefore, in these circumstances, to say that the accused party had right of private defence, cannot be accepted. 46. Furthermore, the right of private defence is only available to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation. The necessity must be present, real or apparent. In this case, this aspect is totally missing. Therefore, no right of private defence was available to the accused-appellant-Jalaram. 47. It may be stated here that no doubt the injuries of the accused-appellant-Kisana Ram and accused-Sonaram (who has been acquitted by the learned trial Judge) have not been explained by the prosecution witnesses, but since their injuries were simple as well as minor in nature, therefore, non-explanation of their injuries by the prosecution witnesses would not affect the case of the prosecution and the learned trial Judge was right in holding that the non-explanation of their injuries would not affect the prosecution case. 48. The next question for consideration is whether by giving lathi blow on the head of the deceased, the accused-appellant-Jalaram has committed the offence u/s. 302 IPC or not. 49. 48. The next question for consideration is whether by giving lathi blow on the head of the deceased, the accused-appellant-Jalaram has committed the offence u/s. 302 IPC or not. 49. In our considered opinion, looking to the entire facts and circumstances of the case and the facts that the accused-appellant-Jalaram has caused lathi blow on the head of the deceased, which is a vital part of the body and that head injury was found to be sufficient in the ordinary course of nature to cause death and that as a result of that head injury, the deceased died on the spot, it can reasonably be presumed or gathered that the accused-appellant-Jalaram was having no other intention except to cause murder of the deceased and therefore, the act of the accused-appellant-Jalaram would amount to culpable homicide amounting to murder punishable u/s. 302 IPC and thus, he was rightly convicted by the learned trial Judge for the said offence u/s. 302 IPC and the findings of the learned trail Judge in this respect are liable to be confirmed. 50. It may be stated here that no doubt there was a constructive charge against all the accused-appellants including the accused-appellant-Jalaram for the offence u/s. 302 r/w Section 149 IPC, but since the accused-appellant-Jalaram alone inflicted the injury on the deceased, therefore, the accused-appellant- Jalaram could be convicted u/s. 302 IPC simplictor while acquitting other accused-appellants for the offence u/s. 149 IPC and for that, the decision of the Hon'ble Supreme Court in Hem Raj v. State, (Delhi Administration), AIR 1990 SC 2252 may be referred to. Thus, the accused-appellant-Jalaram was rightly convicted u/s. 302 IPC by the learned trial Judge. 51. It may further be stated here that since the Court has come to the conclusion that the accused-appellants would not be convicted with the aid of Section 149 IPC, the argument that it was a case of free fight.has become redundant. 52. So far as the charge for the offence u/s. 323 IPC is concerned, it may be stated here that it is well proved from the statements of PW-5 Pratapa and PW-1 Hanja that the accused-appellant-Kisana Ram gave lathi blow to PW-5 Pratapa and similarly, the accused-appellant-Naringa gave lathi blow to PW-1 Hanja and for that, they could be convicted for the offence u/s. 323 IPC simplicitor. 53. 53. In our considered opinion, looking to the entire facts and circumstances of the case, ends of justice would be met if for the offence u/s. 323 IPC, the accused-appellants-Kisana and Naringa are sentenced to the period already undergone by them. 54. For the reasons stated above, both the appeals filed by the accused-appellants are partly allowed in the following manner : "(1) D.B. Criminal Appeal No. 227/2002 filed by the accused-appellants-Jala Ram, Bhagirath and Kisana Ram Accused-appellant No.1-Jalaram That conviction and sentence of the accused-appellant No. 1-Jalaram for the offence u/ss. 147 & 323/149 IPC are set aside and he is acquitted of the said charges. But, his conviction and sentence for the offence u/s. 302 IPC are maintained and the judgment and order dated 21.2.2002 passed by the learned Addl. Sessions Judge (Fast Track) Jalore stand modified accordingly to the above extent. Accused-appellant No. 2-Bhagirath That conviction and sentence of the accused-appellant No. 2- Bhagirath for the offence u/ss. 147, 302/149 & 323/149 IPC are set aside and he is acquitted of the said charges. Since he is on bail, he need not surrender and his bail bonds stand cancelled. Accused-appellant No. 3-Kisana Ram That conviction and sentence of the accused-appellant No. 3-Kisana Ram for the offence u/ss. 147 & 302/149 are set aside and he is acquitted of the said charges, but so far as the charge for the offence u/s. 323/149 IPC is concerned, in place of 323/149 IPC, he is convicted for the offence u/s. 323 IPC simplicitor and for the said offence u/s. 323 IPC, he is sentenced to the period already undergone by him. Since he is on bail, he need not surrender and his bail bonds stand cancelled. (2) D.B. Criminal Appeal No. 242/2002 filed by the accused-appellants-Bhikaram, Poonma Ram and Naringa Accused-appellant No.1-Bhikaram That conviction and sentence of the accused-appellant No. 1- Bhikaram for the offence u/ss. 147, 302/149 & 323/149 IPC are set aside and he is acquitted of the said charges. Since he is on bail, he need not surrender and his bail bonds stand cancelled. Accused-appellant No. 2-Poonma Ram The conviction and sentence of the accused-appellant No. 2-Poonma Ram for the offence u/ss. 147, 302/149 & 323/149 IPC are set aside and he is acquitted of the said charges. Since he is on bail, he need not surrender and his bail bonds stand cancelled. Accused-appellant No. 2-Poonma Ram The conviction and sentence of the accused-appellant No. 2-Poonma Ram for the offence u/ss. 147, 302/149 & 323/149 IPC are set aside and he is acquitted of the said charges. Since he is on bail, he need not surrender and his bail bonds stand cancelled. Accused-appellant No. 3-Naringa That conviction and sentence of the accused-appellant No. 3-Naringa for the offence u/ss. 147 & 302/149 are set aside and he is acquitted of the said charges, but so far as the charge for the offence u/s. 323/149 IPC is concerned, in place of 323/149 IPC, he is convicted for the offence u/s. 323 IPC simplicitor and for the said offence u/s. 323 IPC, he is sentenced to the period already undergone by him. Since he is on bail, he need not surrender and his bail bonds stand cancelled. Appeals partly allowed. *******