ORAL JUDGMENT: (Per C.L. Pangarkar, J) 1. The State of Maharashtra has preferred this appeal against the Judgment and order passed by the Additional Sessions Judge, Washim, whereby he acquitted the respondents-accused of the offences punishable under Sections 307, 326 and 323 read with Section 34 of Indian Penal Code. 2. The facts giving rise to this appeal are as under:- The complainants and the accused are resident of village Pardital. PW 2 Parasram son of PW 1 Atmaram was serving with accused no.1 as laborer. He was engaged on the basis of the yearly salary payable to him. It is alleged that Parasram was charged by accused No.1 and his sons for having committed theft - Parasram, therefore, left the services. Before Parasram left the services of accused No.1, the father of Parasram had taken part of the salary of Parasram in advance from accused. Since Parasram left the job after a charge was leveled against him and before the completion of one year the accused were demanding back the money, which they had paid to Atmaram. They made such demand from Atmaram on several occasions, but Atmaram refused to pay the amount. It is alleged that on the date of incident Atmaram, his sons Parasram, Gajanan (P.W. 3) and Dnyandeo (P.W. 4) were sitting in front of the cattle-shed in which one Manjulabai (P.W. 5) also resides. While they were talking with each other, it is alleged that accused No.1 and 2 came there. They demanded the amount from Atmaram. Atmaram said that he would pay the amount after the accounts are settled. Upon this accused No.2 Prakash got enraged and hit Atmaram with chappal. Accused No.1 Govinda then rushed home and brought two sticks with him. Accused No.1 handed over one of the sticks to accused No.2 Prakash and then they started assaulting Atmaram. Atmaram sustained injuries over head and other parts of the body. Parasram, Govinda, Dnyandeo, Manjulabai and her son Balu (P.W. 6) tried to intervene. It is alleged that they too were injured and they all suffered injuries in the said incident. Atmaram fell unconscious on the spot and the accused then went away. P.W. 7 Namdeo then carried Atmaram and the injured to Mangrulpir Police Station where they lodged report. All of them were referred to Medical officer. Since Atmaram was unconscious he was referred to Civil Hospital at Akola. Atmaram fell unconscious on the spot and the accused then went away. P.W. 7 Namdeo then carried Atmaram and the injured to Mangrulpir Police Station where they lodged report. All of them were referred to Medical officer. Since Atmaram was unconscious he was referred to Civil Hospital at Akola. The police seized the two sticks from the house of the accused persons. They recorded the statements of the witnesses and filed charge sheet against the accused. 3. The Judicial Magistrate, First Class committed the case to the Court of Sessions. Charge was framed against the accused. They pleaded not guilt. They raised the defence that it was the complainant's party who had in fact assaulted the accused persons. They denied to have caused any injury to any one from the complainant's party. 4. The learned Sessions Judge upon consideration of the evidence found the accused not guilty of any of the offences with which they were charged. Being aggrieved by that order of acquittal this appeal has been preferred. We have heard the learned counsel for the appellant-State and respondents-accused. We have also gone through the record and proceedings of the trial. 5. The prosecution had examined 11 witnesses in this case and P.W. 1 to 6 are the eyewitnesses of the incident. P.W. 1 to 6 also had suffered injuries in this incident. It is admitted by P.W. 1 Atmaram that for the same incident they are facing Sessions Trial. It is however, not clear if this Sessions Trial and the one against Atmaram and others were tried by one and the same Judge and whether the Sessions Case against Atmaram and others is decided and what is the result thereof. It is expected that when there are counter cases the same Judge should try both the cases and decide both one after the other. There is nothing on record to verify this. We have proceeded to hear this appeal and dispose it of. 6. We are aware that in an appeal against acquittal High Court should be slow in upsetting the judgment of trial Court. We are however constrained to do it since we find that the findings recorded by trial Court on the basis of the evidence are unreasonable and unsustainable. 7. 6. We are aware that in an appeal against acquittal High Court should be slow in upsetting the judgment of trial Court. We are however constrained to do it since we find that the findings recorded by trial Court on the basis of the evidence are unreasonable and unsustainable. 7. Trustworthiness of the prosecution witnesses has to be ascertained on the touch, stone of F.I.R. The incident in question took place around 9 P.M. and the report of the said incident is lodged by P.W. 2 Parasram at 4 a.m. P.W. 7 Namdeo has stated that he had taken Atmaram, Parasram and others in bullock cart to Mangrulpir. It is in evidence of P.W. 1 Atmaram that Mangrulpir is 10 kms. away from their village and it takes about 3 hours by bullock cart to reach Mangrulpir. Thus, if Parasram had lodged report at 4 a.m. then there is absolutely no delay. There is least possibility, therefore, of any colour being given to the F.I.R. (Exh.32). 8. It is deposed by P.W. 1 Atmaram that he along with his sons was sitting near the cattle-shed where Manjulabai resides and they were talking with each other. It is in the evidence of P.W. 1 Atmaram as well as other witnesses including witness Nos. 2,3,4,5 and 6 that accused no.1 Govinda and accused No. 2 Prakash came there and demanded the amount from P.W.1 Atmaram and Atmaram said that he would pay the amount after the accounts are settled. It is also further in their evidence that accused No. 2 Prakash beat Atmaram with chappal and accused No. 1 Govinda went home, brought two sticks and gave one of them to Prakash. It is further stated by all these witnesses that both of them assaulted Atmaram. Further it is in the evidence that when Parasram and his brothers tried to save Atmaram they too were assaulted with sticks and all of them suffered injuries. The origin of incident as given in F.I.R. (Ex.32) is that accused Nos.1 and 2 had come to demand money and upon refusal by Atmaram he was beaten with chappal by accused No.2. This is what is exactly deposed to by the witnesses. The contents of the F.I.R. (Exh.32) therefore, certainly corroborate the evidence of these witnesses. The origin of incident as given in F.I.R. (Ex.32) is that accused Nos.1 and 2 had come to demand money and upon refusal by Atmaram he was beaten with chappal by accused No.2. This is what is exactly deposed to by the witnesses. The contents of the F.I.R. (Exh.32) therefore, certainly corroborate the evidence of these witnesses. The defence of the accused is that accused No.1 Govinda was coming from the field to go to his home when Atmaram and his son abused him and beat him. This does not appear to be probable. There is no reason why Atmaram would unnecessarily invite trouble by abusing accused No.1 when he admittedly owed money to accused No. 1. It is admitted in cross-examination of P.W. 1 Atmaram that accused No.1 Govinda was demanding money since one month and he did not pay. This certainly, therefore, was the cause for accused No.1 Govinda to be annoyed with Atmaram. Since Atmaram was refusing to pay the money it is more probable that accused No.1 Govinda and accused No. 2 Prakash may have once again gone to demand the amount. Even just prior to the incident it appears that Atmaram did not pay heed to the demand made by accused No.1 Govinda and accused No. 2 Prakash, hence it is more probable that accused No. 2 Prakash got annoyed and assaulted Atmaram with chappal. The incident had thus begun. We also find from the evidence of prosecution witnesses that accused No. 1 Govinda brought the sticks, to be more probable. We have already seen that both parties had to face a Sessions Trial. In this incident it appears that from complainant's party (1) Atmaram, (2) Parasram, (3) Gajanan (4) Balu, (5) Manjulabai and (6) Dnyandeo had sustained injuries such as contusions and lacerations. While from party of the accused (1) Govinda, (2) Prakash and (3) Vasant had sustained injuries. Their injuries are of similar nature. The prosecution witnesses do not make a clean breast how the accused suffered injuries nor the accused have been able to explain injuries on the person of the complainant and party satisfactorily. It is suggested to P.W. 1 that villagers had gathered there and when they tried to intervene Atmaram and his sons received injuries. Similar is the suggestion given to P.W. 2 Parasram. It is suggested on behalf of accused to P.W. 9 Dr. It is suggested to P.W. 1 that villagers had gathered there and when they tried to intervene Atmaram and his sons received injuries. Similar is the suggestion given to P.W. 2 Parasram. It is suggested on behalf of accused to P.W. 9 Dr. Dilip Dhope, Medical officer, who had examined the injured that Atmaram and his sons had sustained injuries due to fall on ground and that suggestion has been denied. The suggestion to Medical Officer is not in tune with the one given to P.Ws. The other witnesses to whom we have already referred to, have also denied the suggestion given to them. It is for this reason we find that the accused are unable to explain the injuries sustained by Atmaram and his sons. The fact is that several persons from both the sides suffered injuries. The nature of injuries suffered by both sides is almost identical. P.W. 9 Dr. Dilip Dhope, Medical Officer admits in his cross-examination that such injuries could be caused by sticks. It is, therefore, obvious that the accused as well as the complainants had suffered injuries with sticks. The evidence, therefore, to our mind suggests that there was a free fight between the two groups. Whenever, there is a free fight, in such a situation the participants become responsible for their individual act. Reliance in this regard may be placed in a case reported in 1992(1) Crimes Pg. 583 (Baghel Singh vs. Swaran Singh and others) 9. The prosecution witnesses had suffered following injuries:- P.W. 1 Atmaram Dhengale: 1. Lacerated wound, over left paritai region. size 11/2" x 1. x 1/2". 2. Lacerated wound 2 “lateral to the above injury size 1/2" x 1/2" P.W. 4 Dnyandeo Dhengale: 1. Contusion middle fallents of left index finger Size 1’’ x 1’’. 2. Lacerated injury over occipital area right side, size 1/2". x 1/2". redish. P.W. 5 Manjulabai: 1. Contusion over left wrist joint, 1” x 1” redish. 2. Contusion 2. below left ankle joint size 1” x 1” P.W. 6 Balu: 1.Contusion middle 3rd of forearm size 2” x 2” redish. Age of injury was within four hours. P.W. 3 Gajanan: 1.Contusion on left forearm, middle 3rd size 2” x 2”. redish. 2. Contusion on left occipital region, size 1 1/2" x 1”. redish. P.W. 2 Parasram: 1.Lacerated wound on right temporal region, size 1/2" x 1/2". redish 2. Age of injury was within four hours. P.W. 3 Gajanan: 1.Contusion on left forearm, middle 3rd size 2” x 2”. redish. 2. Contusion on left occipital region, size 1 1/2" x 1”. redish. P.W. 2 Parasram: 1.Lacerated wound on right temporal region, size 1/2" x 1/2". redish 2. Lacerated wound over right occipital area size 1/2" x 1/2". redish. This takes us to the evidence with regard to individual act of the accused persons. It is stated by P.W. 1 Atmaram that accused No. 2 Prakash had given one blow on head and another on back. He also stated that accused No.1 Govinda had also given a blow of stick on head. However, he admits that he did not tell this to the police while recording the statement that accused No. 1 had given a blow of stick on the head. Thus this is certainly an omission and it can, therefore, be said that accused No.1 did not cause injury on the head of P.W. 1 Atmaram. The Medical Officer did find injury on the head as per Ex. 39. P.W. 2 Parasram has also corroborated the version of P.W. 1 that Prakash had dealt blow on the head of Atmaram. Therefore, we find that the injury on the head of Atmaram which is caused by stick as is stated by Medical Officer can be attributed to accused No. 2 Prakash. It is also deposed by P. W. 1 that accused No. 3 Vasant beat him with stone and fists blows. P.W. 6 Balu states that Atmaram was beaten with fists blows and he does not refer to a stone. Further more there is nothing to attribute the injury with stone to Atmaram. However, there is enough evidence of all P.Ws. to show that Atmaram was given fist blows and kicks by accused No. 3 Vasant. 10. After having gone through the evidence of prosecution witnesses namely Atmaram, Parasram, Gajanan, Balu, Manjulabai and Dnyandeo we find that their evidence does not connect accused Govind to any specific injury on the person of any of these prosecution witnesses. What they say is that accused Nos. 1 and 2 had assaulted them and while they were saving Atmaram the blows fell on them. This kind of omnibus statement would not be enough to fasten the liability. What they say is that accused Nos. 1 and 2 had assaulted them and while they were saving Atmaram the blows fell on them. This kind of omnibus statement would not be enough to fasten the liability. We have to consider the act of an individual and if that is to be considered a specific injury ought to be attributable to him. Since there is an omnibus statement it is difficult to connect any one of the accused to any particular injury on the person of prosecution witnesses No. 2 to 6. Therefore, the evidence suggests that it was accused No.2 who had caused injury on the head of Atmaram with a stick and Vasanta had assaulted Atmaram with kicks and fist blows. 11. The next question that is to be considered is whether the accused can be held guilty under Section 326, 307 of the Indian Penal Code. For proving an offence under Section 307 following ingredients have to be established: i) Death of a human being was attempted; ii) Such death was attempted to be caused by or any consequence of the act of accused; iii) That such act was done with an intention of causing death, or that it was done with intention of causing such bodily injury as a) the accused knew to be likely to cause death or b) was sufficient in the ordinary course of nature to cause death. It is, therefore, to be shown as to what was the actual intention of the appellants and what is the nature of the injury. Although P.W. 1 Atmaram had suffered injury on head it was not a fracture or injury of serious nature. The Medical Officer stated that in ordinary course of nature it would not have caused death. We have seen that there was a free fight. None of the accused had any other weapon except sticks. Hence we find that the accused could not have an intention to kill any-body nor could knowledge be attributed to them since they had deliberately not aimed at a particular part of the body. In the circumstances we find that the injuries on the person of Atmaram were not such that, had Atmaram died the accused could be convicted under Section 302 of Indian Penal Code. In the circumstances we find that the injuries on the person of Atmaram were not such that, had Atmaram died the accused could be convicted under Section 302 of Indian Penal Code. We, therefore, find that accused No.2 committed an offence under Section 324 of Indian Penal Code for having voluntarily caused hurt by dangerous weapon to Atmaram. Accused No.3 Vasanta also has to be held guilty of the offence punishable under Section 323 of Indian Penal Code for causing simple hurt to Atmaram. The acquittal of accused No.1 however in the circumstances will have to be confirmed. In the result we pass the following order: Appeal is partly allowed. The judgment and order passed by the Additional Sessions Judge Washim acquitting the accused Nos. 2 and 3 is set aside. Accused No. 2 Prakash Govind Goghare is convicted of the offence punishable under Section 324 of Indian Penal Code. He is sentenced to undergo rigorous imprisonment for a period of one month. He shall also pay fine of Rs.500/-, in default of payment of fine he shall undergo further imprisonment of 15 days. Accused No. 3 Vasant Govind Ghogare is convicted of offence punishable under Section 323 of Indian Penal Code. He is sentenced to pay fine of Rs.1000/-, in default of payment of fine, he shall undergo simple imprisonment for a period of one month. The acquittal of accused No. 1 is confirmed. His bail bond stands cancelled. Accused No. 2 should surrender to the bail. Appeal party allowed: