ORAL JUDGMENT: (C.L. Pangarkar, J.) 1. The appellant/accused no. 3 was convicted by the Additional Sessions Judge, Akola for having committed offences Criminal punishable under Sections 302, 324 of the Indian Penal Code. He was sentenced to undergo imprisonment for life and to pay fine of Rs.4000/-. 2. The facts giving rise to this appeal are as under:- All the accused are resident of village Ghusar. One Mangala Uttam sing Laharia is also resident of village Ghusar and was neighbor of the accused persons. Mangala was taking education in school while accused No. 1 Vinod was working as an electrician. There was love affair between accused No. 1 Vinod and Mangala. Mangala used to write love letters to accused No. 1 Vinod so too accused No. 1 to Mangala. The parents of Mangala came to know of this love affair. They had, therefore, gone to the house of accused No. 1 Vinod and had brought this to the notice of accused No. 4. Ramratan, the father of accused No. 1. It is alleged that accused No. 4 expressed an apology. However, inspire of this accused No. 1 or Mangala did not change their attitude and they continued to meet each other. Accused No. 2 is friend of accused No. 1-Vinod, accused No. 3 . Nitin is brother of accused No. 1, accused No. 4 is father and accused no.5 is also brother of accused No. 1 Vinod. 3. On the date of incident i.e. 26/1/1999, Mangala had come back from the school. She was going along with her father Uttamsing to their field. While they were passing from Holi chowk, it is alleged that accused No. 1 met them. Accused No. 1 was given a slap by Uttamsing. Accused No. 1, therefore, went home and came along with rest of the accused i.e. accused nos.2 to 5. It is alleged that accused No. 3 was armed with a spear and others were armed with pipes and sticks and started assaulting Uttamsing. Mangala, therefore, raised cries whereupon three Gajanan Laharias came to the spot duly armed. It is further alleged that accused No. 3 had dealt a blow with a spear on the chest of deceased Uttamsing and he has also caused injuries to P.W. 1 Gajanan Laharia and P.W. 7 Gajanan Balachand. Uttamsingh Laharia fell down due to the injuries. Mangala, therefore, raised cries whereupon three Gajanan Laharias came to the spot duly armed. It is further alleged that accused No. 3 had dealt a blow with a spear on the chest of deceased Uttamsing and he has also caused injuries to P.W. 1 Gajanan Laharia and P.W. 7 Gajanan Balachand. Uttamsingh Laharia fell down due to the injuries. Thereafter, Gajanan Bodharam Laharia went to the police station and lodged the report. It is also alleged that report on behalf of the accused was also lodged with the police. The police registered the crimes and took investigation in hand. They had filed charge-sheet against complainant-party i.e. Laharias as well as against the accused persons. Their cases were committed to the court of sessions. 4. In Sessions Trial No.62 of 1999, the learned Sessions Judge framed charge against accused nos.1 to 5. Upon consideration of the evidence, the learned Sessions Judge acquitted accused nos.1, 2 and 4 of the offences with which they were charged. He found appellant/accused No. 3 Nitin guilty of offence punishable under Section 302 of the Indian Penal Code and sentenced him to life imprisonment. He found accused No. 5 Subhash guilty of offence under section 324 of the Indian Penal Code. 5. Appellant/accused No. 3 Nitin alone has preferred this appeal. 6. We have heard the learned counsel for the appellant/accused Nitin and the learned Additional Public Prosecutor for the State. 7. The prosecution had examined as many as fourteen witnesses in support of its case. The accused examined none. P.Ws. 1, 4, 5, 6 and 7 are the eyewitnesses. 8. Out of five accused, only accused No. 3 Nitin has been held guilty of the offence punishable under Section 302, 324 of the Indian Penal Code. Accused No. 1, 2 and 4 were acquitted while accused no.5 was held guilty of the offence punishable under Section 324 of the Indian Penal Code. Since this is an appeal by accused No. 3 Nitin alone, we have to look into the evidence with Regard to him alone. 9. In fact, fact of death being homicidal is not much disputed at all. Since this is an appeal by accused No. 3 Nitin alone, we have to look into the evidence with Regard to him alone. 9. In fact, fact of death being homicidal is not much disputed at all. The fact that the deceased had received injury with a spear in that incident is admitted by accused persons in their written statements, which they submitted while recording their statement under Section 313 of Cr.P.C. It is suggested to eye witnesses that deceased had sustained injury with a spear. The only contention of the accused was that the spear was in the hand of P.W. 1. The evidence of Medical Officer (P.W. 11) shows that deceased had following injuries. Stab injury 2.5 cm. deep 6th intercostals space Anterior axillary’s line 1 inch (L) Lateral side from mammary gland Haemothorax (L) Side (Lt). Lung injuries 2 cm Lateral side liters of blood in (L). Thoracic Cavity. (Lt) Size of heart injuries found 2 cm x 1 cm. towards base cotted blood found inside. 10. He says that they were sufficient in ordinary course of nature to cause death and could be caused by the spear (Article 18). P.W. 11 - Dr. Purushottam denies that the injury could be caused in a scuffle or while snatching the spear. Hence, the injury on the person of the deceased is caused voluntarily. Hence, there is no difficulty in concluding that the death of the deceased is homicidal. The only thing that we are required to look into is who is the author thereof. 11. It is not in dispute that upon report of the accused persons, the complainant-party was charge sheeted and Sessions Trial No.61 of 1999 was held against them. Unfortunately, we are not aware if the Sessions Trial was held before the same Judge and whether he delivered the judgment in both sessions trials one after the other, as is expected in the counter cases. Be that as it may, the fact that complainant-party faced Sessions Trial No.61 of 1999 is not disputed and that is also clear from the evidence of Investigating Officer. 12. The presence of appellant/accused No. 3 Nitin is not at all disputed. The accused persons had given a joint written statement while their statement under Section 313 of the Cr.P.C. was being recorded. 12. The presence of appellant/accused No. 3 Nitin is not at all disputed. The accused persons had given a joint written statement while their statement under Section 313 of the Cr.P.C. was being recorded. The contents of the written statement would show that all the accused had, in fact, admitted their presence on the spot. We find it necessary to reproduce here that part of the written statement. In the meantime, accused Nitin who was working in Maharashtra State Electricity Board came home after attending the said programmed. At that time he saw that the said quarrel was going on. Hence, he went there for separating the said quarrel. At that time the aforesaid accused persons assaulted him also. 13. The injury report of Nitin accused No. 3 is also got proved from P.W. 10 Dr. Rajesh. The Certificate of his injuries is Exh.97. Thus, it is clear that the appellant/accused No. 3 Nitin was very much part of the incident that took place. 14. Here, the defence of the accused, as can be culled out from cross-examination and the written statement, is that the spear was brought by P.W. 1 Gajanan and deceased Uttamsing received injuries due to the spear in the hand of P.W. 1 Gajanan. All prosecution witnesses i.e. P.W. 1 Gajanan Bodhram, P.W. 4 Gajanan Devi dassing, P.W. 5 Mangala, P.W. 6 Indubai, wife of the deceased, P.W. 7 Gajanan Balchand Laharia and P.W. 8. Santosh Laharia son of the deceased, positively say that it was accused No. 3 Nitin who had spear in his hand and who dealt blow with it to the deceased. The evidence of all these witnesses is enough to hold that it was accused No. 3 Nitin who held the spear. The defence that the spear was in the hand of Gajanan and it caused injury to the deceased cannot be accepted for the simple reason that the deceased could not grapple with his own brother since he would never assault the deceased. If at all he may have been required to grapple with it, it could be accused persons alone. The evidence of these witnesses does inspire confidence since they are all unanimous on the aspect of appellant - Nitin holding a spear and dealing a blow with it to Uttamsing. These witnesses, in fact, had real grievance against the acquitted accused No. 1 Vinod. The evidence of these witnesses does inspire confidence since they are all unanimous on the aspect of appellant - Nitin holding a spear and dealing a blow with it to Uttamsing. These witnesses, in fact, had real grievance against the acquitted accused No. 1 Vinod. They could have, therefore, attributed the fatal injury to him. The fact that they do not attribute it to Vinod and instead attribute it to Nitin, the appellant shows that they are telling the truth. We too concur with the finding of the trial Judge that it was appellant/accused No. 3 who is the author of the fatal injury. 15. Even otherwise PW 11- Dr. Purushottam denies suggestion that the injury could be caused while snatching the spear. There is no reason why the deceased would try to snatch it from the hands of his brother. Hence, we do not find the defence to be probable. In fact, such suggestion suggests that the spear must be in the hands of appellant/accused No. 3. 16. PW 13 P.S.I. Ramchandra has stated that accused No. 3 Nitin had during course of investigation volunteered to produce the spear and he recorded his statement (Exh.114) in presence of panchas. He states that accused No. 3 then took them to his house and from hay staked on the wall he removed blood stained spear and he prepared the panchanama (Exh.117). There is virtually no challenge to the statement of P.W. 13. Although P.W. 2. Nisar Ahmad (Panch) had turned hostile still, since there is virtually no challenge to what has been stated by P.W. 13, we do not find any reason to discard his evidence. The spear, therefore, can be said to have been recovered at the instance of the accused Nitin. This spear has been identified by P.W. 1 Gajanan. We, therefore, conclude that accused Nitin discovered the spear. This fact, therefore, corroborates the other evidence. There is, therefore, no manner of doubt that it is the appellant/accused No. 3 who caused the fatal injury to the deceased. 17. The learned counsel for the appellant/accused contended that the case does not fall within the definition of murder. The complainant-party was also prosecuted as observed earlier for commission of offence under Section 307 of the I.P. Code. The three accused including the appellant had received injuries in this case. 17. The learned counsel for the appellant/accused contended that the case does not fall within the definition of murder. The complainant-party was also prosecuted as observed earlier for commission of offence under Section 307 of the I.P. Code. The three accused including the appellant had received injuries in this case. From complainant's party besides deceased, three Gajananas and from accused-party accused No. 3/appellant, Subhash and Vinod also had received injuries. The medical Certificates of all these injured are at Exh.93 to 99 and they are duly proved. It is thus clear that the persons from both sides sustained injuries. The evidence of PW 5 Mangala and the statement of accused shows that the quarrel had begun when the deceased had given a slap to accused No. 1 Vinod. It is only thereafter that the persons from both the sides collected and quarrel ensued. In that quarrel both sides, it appears, assaulted each other and therefore there was a free fight else persons from both sides would not have suffered serious injuries. 18. In the case reported in 1992(1) Crimes Pg. 583 (Baghel Singh vs. Swaran Singh and others), following observations are made by the Apex court:- “8. While rejecting the plea of self-defence and setting aside the High Court verdict we are not inclined to agree with the trial court that the accused party was the aggressor. There were bitter feelings between the parties and the tempers were high. The accused party was in favour of digging the drain whereas the complainant party was against the proposal because the drain was passing through their fields. It is the prosecution case that on the day of occurrence the complainant party gave beating to Rajinder Singh accused and thereafter the accused party injured Boor Singh belonging to the complainant party. Before the main occurrence took place at 5.25 p.m. sufficient heat had been generated between the parties and they were itching for a show-down. The only probable conclusion is that the two parties came across each other and had a free fight as a result of which both sides suffered injuries and two persons died. In such a situation the participants are responsible for their individual acts. 19. In our case also after the slap was given to Vinod/accused No. 1, the persons from complainant party and accused gathered together and then there was a free fight. In such a situation the participants are responsible for their individual acts. 19. In our case also after the slap was given to Vinod/accused No. 1, the persons from complainant party and accused gathered together and then there was a free fight. It in this free fight the injury was sustained by the deceased. The post mortem report (Exh.101) shows that there is only one stab injury and one contused lacerated wound. Contused lacerated wound could not be caused by the spear, as is admitted by Dr. Purushottam (PW 11). As such, that second injury i.e. contused lacerated wound cannot be attributed to appellant/accused No. 3 and the only injury that can be attributed to appellant/accused No. 3 is stab injury. There was a quarrel and free fight and in that quarrel alone he had dealt only one blow. Since there were too many persons on the spot, it cannot be said that the accused had a time to choose any particular part for dealing a blow. After dealing one blow, he did not hit the deceased once again. He as such, it can be said that accused certainly did not act in a cruel manner. While dealing the blow, it could not be said that appellant/accused had an intention to cause death although knowledge could be attributed to him. Had he had an intention to do away with the deceased, he could have dealt another blow to the deceased. 20. A case reported in A.I.R. 1994 S.C. 1060 (Ranjitsingh vs. State of Gujarat) was placed before us. Following are the observations in the said case. The evidence of these two witnesses indicates that there was sudden quarrel and fight ensued. Therefore, the intention to cause that particular injury cannot be spelt out from the act committed by the appellant. Facts of the reported case and one in hand are almost identical. We find that the evidence certainly shows that the accused had no intention to cause the death. Hence, the case certainly falls under Section 304-II of I.P.Code. 21. The appellant/accused No. 3 has been also held guilty of the offence punishable under Section 324 of the I.P.Code for having caused injury with the to P.W. 1 and 7. We have already found that the was in the hand of appellant/accused No. 3 Nitin alone. Hence, the case certainly falls under Section 304-II of I.P.Code. 21. The appellant/accused No. 3 has been also held guilty of the offence punishable under Section 324 of the I.P.Code for having caused injury with the to P.W. 1 and 7. We have already found that the was in the hand of appellant/accused No. 3 Nitin alone. It is deposed by PW 1 Gajanan that appellant/accused had dealt a blow on his hand and he sustained injuries. Even PW 7 Gajanan has stated that appellant/accused caused injury to him on buttock with spear. The medical evidence in the form of Certificates (Exh.93 and 94) supports their version. The injuries as mentioned in the certificate are incised wounds. The medical Officer (PW 10) Dr. Rajesh says that they could be caused by spear. No other accused had any sharp edged weapon except appellant/accused No. 3. Nitin. Hence, these injuries were rightly attributed by the learned Sessions Judge to the appellant/accused. We find that the learned Sessions Judge, therefore, rightly held appellant/accused guilty of the offence punishable under Section 324 of the Indian Penal Code. In the result, we pass following order. 22. The appeal is partly allowed. Appellant/accused No. 3 . Nitin is acquitted of the offence punishable under Section 302 of the Indian Penal Code, instead he is convicted for the offence punishable under Section 304-II of the Indian Penal Code. He is sentenced to undergo rigorous imprisonment for a period of seven years. He shall pay fine of Rs. 4000/- (Rs. Four thousand only), in default to suffer rigorous imprisonment for a period of six months. His conviction and sentence under Section 324 of the I.P.C. is confirmed. Both sentences shall run concurrently. Appeal party allowed