Honble S.K. SHARMA, J.–The appellants were the accused on the file of learned Additional Sessions Judge No. 2, Jaipur (District Jaipur) bearing Sessions Case No. 37/1996. Learned Judge vide judgment dated December 12, 2000 convicted and sentenced the appellants as under:- Appellant Kailash u/S. 302 IPC: To suffer imprisonment for life and fine Rs. 500, in default to further suffer one month rigorous imprisonment. u/S. 148 IPC: To suffer rigorous imprisonment for one year. u/S. 452 IPC: To suffer rigorous imprisonment for one year and fine Rs. 100, in default to further suffer three months rigorous imprisonment. u/S. 449 IPC: To suffer rigorous imprisonment for two years and fine Rs. 200, in default to further suffer three months rigorous imprisonment. Appellant Ramphool: u/S. 302/149 IPC: To suffer imprisonment for life and fine 500, in default to further suffer one months rigorous imprisonment. u/S. 148 IPC: To suffer rigorous imprisonment for one year. u/S. 452 IPC: To suffer rigorous imprisonment for one year and fine Rs. 100, in default to further suffer three months rigorous imprisonment. u/S. 449 IPC: To suffer rigorous imprisonment for two years and fine Rs. 200, in default to further suffer three months rigorous imprisonment. Appellants Lala Ram, Hari Narayan and Sedu Ram: u/S. 302/149 IPC: Each to suffer imprisonment for life and fine Rs. 500, in default to further suffer one month rigorous imprisonment. u/S. 148 IPC: Each to suffer rigorous imprisonment for one year. All the sentence were directed to run concurrently. (2). Put briefly the prosecution case is that on November 5, 1991, informant Ramjilal (PW. 17) submitted a written report (Ex. P. 23) at Police Station Bassi to the effect that accused persons viz. Lala Ram, Ramphool, Kailash, Sedu Ram, Hari Narayan, Sita Ram, Bhagwan Sahai, Babu Lal, Ramsahai along with 20-25 other persons armed with iron rods and pipes attacked on them and tried to commit robbery. The caused injuries on the person of informants father Radhey Shyam. When neighbour intervened the accused fled away. On that report Police Station Bassi registered a case under Sections 147, 323, 307 and 452 IPC and investigation commenced. After Radhey Shyam succumbed to his injuries, section 302 IPC was added. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 2, Jaipur (District Jaipur). On that report Police Station Bassi registered a case under Sections 147, 323, 307 and 452 IPC and investigation commenced. After Radhey Shyam succumbed to his injuries, section 302 IPC was added. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 2, Jaipur (District Jaipur). Charges under Sections 148, 452, 449, 302 and 302 read with 149 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 22 witnesses. In the explanation under Section 313 Cr.P.C. the appellants claimed innocence. Three witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. (3). We have given our anxious consideration to the rival submissions and with the assistance of the learned counsel we have gone through the evidence on record. (4). Death of deceased Radhey Shyam was indisputably homicidal in nature. As per postmortem report (Ex. P. 29) he received following ante mortem injures:- 1. lacerated wound 2 x 1 cm x bone deep placed on left temporal region at the junction of left ear pinna upper part obliquely placed and fresh clotted blood. 2. Multiple abrasions of size 4 cm x 3 cm to 1/2 x 1/4 cm placed on centre of forehead and frontal region left side forehead at places left side temporal region. 3. Abrasion 3 x 1/2 cm oblique and vertically placed on latend left eye and eye brow reddish in colour. 4. Abrasion 1 1/2 cm x 1/4 cm reddish placed on outer rim upper upper part of left ear pinna. 5. Multiple abrasions of size 3 1/2 cm x 3/4 cm x 1/4 cm placed on left side mandibular region over its angle reddish in colour with diffuse swelling around it. 6. diffuse swelling on frontal region and left tempro parietal region. On further dissection there is sub scalp hematoma over frontal region and left parieto temporal region. Brain: Laceration of size 2 cm x 3/4 cm x 1/2 cm on supero lateral surface of left temporal lobe on cut hematome present. Contusion 2 x 1cm on inferior surface of left frontal region and on cut hematoma present. According to Dr. B.C. Temani (PW. Brain: Laceration of size 2 cm x 3/4 cm x 1/2 cm on supero lateral surface of left temporal lobe on cut hematome present. Contusion 2 x 1cm on inferior surface of left frontal region and on cut hematoma present. According to Dr. B.C. Temani (PW. 21) the cause of death was coma as a result of injuries to the skull and brain. (5). We deem it appropriate at this juncture to refer to the injuries sustained by the accused persons in the same incident. Accused Ram Phool vide injury report (Ex. P. 25) received following injuries:- 1. Wound with crust 3 cm x 1/2 cm 6 cm above middle of left eye brow on forehead. 2. Pain with swelling on lat. 1/3rd of palm pest of Rt. hand. Vide injury report (Ex. P. 26) Kailash received following injuries: 1. Wound with crust 1 cm x 1/4 cm between base of middle and index finger of left hand. 2. Wound with crust 1/2 x 1/2 cm on Rt. wrist joint Ant. lat. 3. Wound with crust 2 x 2cm on base of Rt. shoulder on scapular. 4. Wound with crust 1 1/2 cm x 1 1/2 cm on Rt. pelises 2 cm above iliac angle. Accused Lal Ram also vide injury report (Ex. P. 27) sustained one wound with crust 1cm x 1/4 cm 8 cm above Rt. car on junction of temporal parietal region. (6). According to Dr. Kailash Narain Gupta (PW. 19) accused Ram Phool, Kailash and Lala Ram were referred to him by the police for examination of injuries sustained by them. (7). The prosecution case rests on the testimony of informant Ramji Lal (PW. 17), Nawal Kishore (PW. 1), Narendra (PW. 2), Ram Kishore (PW. 3), Ram Babu (PW. 5), Vinod Kumar (PW. 6), Om Prakash (PW. 7), Kaushalya (PW. 11), Mohra Devi (PW. 12), Manna Devi (PW. 13) and Mahesh Kumar Gupta (PW. 18) who have been examined as eye witnesses of the occurrence. 17), Nawal Kishore (PW. 1), Narendra (PW. 2), Ram Kishore (PW. 3), Ram Babu (PW. 5), Vinod Kumar (PW. 6), Om Prakash (PW. 7), Kaushalya (PW. 11), Mohra Devi (PW. 12), Manna Devi (PW. 13) and Mahesh Kumar Gupta (PW. 18) who have been examined as eye witnesses of the occurrence. Informant Ramji Lal, who is the son of the deceased, in his deposition stated that on November 5, 1991, a day of Diwali celebration while he and his brothers Narendra Prakash and Nawal Kishore were busy in cleaning their house and children were playing out side, accused Kailash came from the village side in a tractor and drove the tractor so negligently that informants nephew Anop, aged seven years, had a narrow escape. On being advised by informants father Radhey Shyam to take care while driving the tractor, Kailash in turn said that instead of advising to others he should keep his children under Control. Kailash then went towards bus-stand and around 10.30 AM Kailash, Ram Phool, Lala @ Rameshwar, Babu Lal, Bhagwan Sahai, Sita Ram, Sedu Ram, Hari Narayan and Shankar @ Ram Sahay came on a tractor. Therefore Kailash gave a blow with iron pipe on the head of Radhey Shyam dragged him out and all the accused started beating Radhey Shyam. Radhey Shyam was removed to the hospital where he died. Testimony of Ramji Lal gets corroboration from the evidence of other eye witnesses. The defence version as per the statement of Hari Narayan (DW. 1) is that child belonging to Radhey Shyams family suddenly came in front of the tractor driven by Kailash, who applied the breaks and averted the accident. Radhey Shyam and Durga Lal then hurled abuses on Kailash and gave beating to him. When Lala Ram and Ram Swaroop came to intervene they were also beaten up. (8). From the evidence adduced at the trial, the factual situation that emerges may be summarised thus:- (i) Although accused Kailash averted the accident, the complainant party hurled abuses at him. The small incident flared up and resulted in death of Radhey Shyam. (ii) Free fight between complainant party and accused party took place wherein accused Ram Phool, Kailash and Lala Ram sustained injuries. (iii) The injuries sustained by the accused were not explained by the prosecution. (9). Mr. The small incident flared up and resulted in death of Radhey Shyam. (ii) Free fight between complainant party and accused party took place wherein accused Ram Phool, Kailash and Lala Ram sustained injuries. (iii) The injuries sustained by the accused were not explained by the prosecution. (9). Mr. A.K. Gupta, learned counsel appearing for the accused criticised the prosecution case from various angles and contended that the incident occurred all of a sudden when the child of deceased Radhey Shyams family had a narrow escape from the tractor the complainant party gave beating to accused Kailash, Ram Phool and Lala Ram. Since the accused had apprehension that grievous injuries might be caused, they exercised the right of private defence and in that process if some blows with iron pipe by accused Kailash might have dealt which resulted in death of deceased Radhey Shyam, no crime is said to have committed by him. Reliance is placed on the case of Jai Singh and another vs. State of Rajasthan, 2004(2) RCC 670 = (RLW 2004(1) Raj. 174). (10). Per contra, Mr. R.P. Kuldeep, learned Public Prosecutor and Mr. Sanjay Mehrishi, learned counsel for the complainant supported the impugned judgment and canvassed that the accused formed unlawful assembly and they intended to kill Radhey Shyam, therefore, no interference is required to be called for in the case. (11). Their Lordships of the Supreme Court in Mohd. Ramzani vs. State of Delhi, AIR 1980 SC 1341 indicated that it is for the accused to prove that the right of private defence as set up by him by at least preponderance of probabilities available in the case of the prosecution. It is well established that a person faced with the imminent peril of life and limb of himself or another, is not expected to weight ``in golden scales the precise force needed to repel the danger. Even if he at the heat of the moment carries his defence a little further than what would be necessary when calculated with the precision and exactitude by a colour and unruffled mind the law makes due allowance for it. (12). In the case on hand as already noticed three accused persons received injuries. Injury received by Lala Ram was on the head. Dr. Kailash Narayan Gupta (PW. 19) examined the injuries of the accused while they were in police custody. (12). In the case on hand as already noticed three accused persons received injuries. Injury received by Lala Ram was on the head. Dr. Kailash Narayan Gupta (PW. 19) examined the injuries of the accused while they were in police custody. The alleged eye witnesses of the prosecution however did not explain the injuries sustained by the accused persons. It is well settled that when the accused have taken the plea that they acted in self defence that could not be ignored lightly, particularly in the absence of any explanation of their injuries by the prosecution. (13). Sections 100 and 103 IPC lay down the circumstances in which even the killing of a person is justifiable. The combined effect of these two sections is to authorise the killing of a person in the following cases:- If the offender threatens- (i) the causing of death or grievous hurt, (ii) rape and unnatural offence. (iii) kidnapping abduction and wrongful confinement. (iv) house-breaking by night or robbery, and (v) arson. The right commences with the reasonable apprehension of danger to person or property. In either cases it extends to the causing of death in the five forgoing cases. It ends with the cessation of apprehension of danger or the recovery of the property or the obtaining of assistance of the public authorities or the escape of the offender. (14). According to Section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the IPC is upon the accused, and the court shall presume the absence of such circumstances. The right of private defence falls within the chapter of general exceptions to the IPC. The burden, of course can be discharged by showing preponderance of probabilities. The second exception to Section 300 IPC deals with the case where a person exceeds the right of private defence. If the excess is intentional, the offence is murder; if unintentional, it is culpable homicide. Exception 2 would apply when (1) the accused caused the death of a person without premeditation, and (2) while causing death he had no intention of doing more harm than was necessary. If the excess is intentional, the offence is murder; if unintentional, it is culpable homicide. Exception 2 would apply when (1) the accused caused the death of a person without premeditation, and (2) while causing death he had no intention of doing more harm than was necessary. Exception 2 of Section 300 IPC contains the important clause ``without any intention of doing more harm than is necessary for the purpose of such defence which is a necessary corollary of section 99 IPC which says 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. (15). It is trite that so long as an assembly of persons in acting in exercise of right of private defence it cannot be an unlawful assembly. In a mutual fight there is no common object and none of the accused can be convicted by having recourse of Section 149 IPC (vide Munir Khan vs. State of U.P. AIR 1972 SC 335). In the case on hand as already noticed free fight ensued between the parties and accused Kailash by inflicting one injury with iron pipe on the head of the deceased exceeded the right of private defence. Accused Kailash can be held to have intention to cause such bodily injury as was likely to cause death and he can be held guilty under Section 304 Part IPC. (16). The prosecution in our view fails to establish the charges under Sections 148, 452, 449 and 302/149 beyond reasonable doubt against the appellants. (17). As a result of above discussion, we dispose of the instant appeal in the following terms:- (i) We partly allow the appeal of appellant Kailash and instead of Section 302 IPC we convict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer six months rigorous imprisonment. Appellant Kailash is however acquitted of the charges under Sections 148, 452 and 449 IPC. (ii) We allow the appeal of appellants Ramphool, Lala Ram, Hari Narayan and Sedu Ram and acquit them of the charges under Sections 302/149, 148, 449 and 452 IPC. These appellants are on bail, they need not surrender and their bail bonds stand discharged. (iii) The impugned judgment of learned trial Judge stands modified as indicated above.