Honble SHARMA, J.–Out of twelve accused put to trial before the learned Special Judge SC/ST (Prevention of Atrocities Cases) Jhalawar, six accused viz. Kalu Lal, Chhagan Singh, Badri Lal, Bahadur Singh, Ghanshyam and Lal Chand were convicted and sentenced vide judgment dated June 5, 2003 as under: U/s. 302/149 I.P.C. Each to suffer imprisonment for life and fine of Rs. 2000/- , in default to further suffer simple imprisonment for three months. U/s. 304 Part II I.P.C. Each to suffer simple imprisonment for five years and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. U/s. 324/149 I.P.C. Each to suffer simple imprisonment for one year and fine of Rs. 300/-, in default to further suffer simple imprisonment for fifteen days. U/s. 323/149 I.P.C. Each to suffer simple imprisonment for six months and fine of Rs. 200/-, in default to further suffer simple imprisonment for ten days. The substantive sentences were ordered to run concurrently. (3). It is the prosecution case that on March 21, 2000 at 1.20 AM Sub-Inspector of police station Aklera recorded parcha bayan (Ex.P-7) of Smt. Shyam Bai (PW-2) at Govt. Hospital Aklera wherein she stated that in the preceding night around 8-9 PM while she along with her mother and son were going to sleep Kalu, Ram Prasad, Chhagan Singh, Badri Lal, Sujan Singh, Gulab Chand, Lal Chand, Ghanshyam, Laxmi Narain, Durga Lal etc. came armed with Lathis, Gandasi and Ballam (spear) and made assault on them. Ghanshyam inflicted Gandasi blow on her head, whereas Kalu inflicted Gandasi blow on the head of her mother. Hearing cries when their neighbours Gokul and his wife intervened they were also beaten up. On that parcha bayan a case under sections 307, 147, 148 and 149 I.P.C. and section 3 of SC/ST Prevention of Atrocities Act, 1989 was registered and investigation commenced. In the course of investigation Gokul and Kanchanbai succumbed to their injuries therefore section 302 I.P.C. was added. Dead bodies were subjected to autopsy. Necessary memos were drawn. Statements of witnesses were recorded. The accused persons were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge SC/ST (Prevention of Atrocities) Jhalawar. Dead bodies were subjected to autopsy. Necessary memos were drawn. Statements of witnesses were recorded. The accused persons were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge SC/ST (Prevention of Atrocities) Jhalawar. Charges under sections 147, 148, 302, 302/149, 37, 307/149, 323, 323/149 I.P.C. and section 3(2)(5) of SC/ST (PA) Act, 1989 were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under Sec. 313 Cr.P.C., the accused claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced six accused as indicated herein above. (4). We have heard the contentions raised before us and with the assistance of learned counsel perused the record. (5). Prior to her death the injuries received by Kanchan Bai were examined and vide injury report (Ex.P-4), she received following injuries: 1. Lacerated wound 1-1/2 x 1/8 x upto bone deep on root of ear left and blow ear of scalp 2. Lacerated wound 1/2 x 1/8 x 1/8 on upper Lt. pinna. After the death, dead body of Kanchan Bai was subjected to post mortem and as per autopsy report (Ex.P-7) drawn by Dr. B.S. Chauhan (PW-20) the cause of death was coma as a result of head injuries extradural hemorrhage on left side of skull and brain part. (6). Gokul vide injury report (Ex.P-1) received following injuries: 1. Incised wound 4 x 1/8 x upto bone deep on Rt. side of mid line of parietal region of frontal region. 2. Incised wound 1-1/2 x 1/8 x upto bone on left forchead. After the death, dead body of Gokul was subjected toautopsy and as per autopsy report (Ex.P-50) drawn by Dr. B.S. Chauhan (PW-20) the cause of death was Head injury. (7). Shyam Bai (PW-2) vide injury report (Ex.P-2) received following injuries : 1. Incised wound 1-1/2 x 1/8 x 1/8 on Rt. parietal region of skull. 2. Incised wound 1 x 1/8 x 1/8 on mid line of parietal region. (8). Jain Singh (PW-6) vide injury report (Ex.P-3) received following injuries: 1. Lacerated wound 1-1/2 x 1/8 x 1/8 on frontal and below the left knee joint 2. Abrasion 1/2 x 1/2 on Rt. shoulder joint. (9). parietal region of skull. 2. Incised wound 1 x 1/8 x 1/8 on mid line of parietal region. (8). Jain Singh (PW-6) vide injury report (Ex.P-3) received following injuries: 1. Lacerated wound 1-1/2 x 1/8 x 1/8 on frontal and below the left knee joint 2. Abrasion 1/2 x 1/2 on Rt. shoulder joint. (9). At this juncture it may be noticed that cross case under sections 147, 148, 149 and 323 I.P.C. was registered on the basis of report lodged by Kalu Lal at Police Station Aklera. Copy of FIR (Ex.D-5) has been placed on record. In the said incident accused Badri Lal received following injuries vide injury report Ex.D-8): 1. Incised wound 2-1/2 x 1/8 x 1/8 on middle and transverse from the forearm. 2. Tenderness with abrasion on wrist joint 3. Lacerated wound 1-1/2 x 1/8 x 1/8 on Lt. parietal region of scalp. Vide X-ray report (Ex.D-12) fracture of ulna bone was found. (10). Accused chhagan Singh vide injury report (Ex.D-9) received following injuries: 1. Incised wound 1-1/4 x 1/8 x 1/8 on 1-1/2" below Rt. ear on neck. 2. Lacerated wound 2" x 1/8 x 1/8 on Rt Parietal region of scalp. 3. Lacerated wound 2 x 1/8 x upto bone on left scapular. (11). accused Bahadur Singh vide injury report (Ex.D-10) received one lacerated wound on back of Rt. eye on tempering region. (12). Accused Amar Lal vide injury report (Ex.D-11) received following injuries: 1. Lacerated wound 1 x 1/8 x 1/8 on Rt. frontal region of scalp 2. Lacerated wound 1-1/2 x 1/8 x 1/8 on just above occipital region. (13). The prosecution case is founded on the testimony of informant Shyam Bai (PW-2), Prem Bai (PW-5), Jain Singh (PW-6) and Narayan Singh (PW-7), who were examined as eye witnesses of the occurrence. In her deposition Shyam Bai (PW-2) stated that Ghanshyam inflicted blow with Gandasi on her head, Kalu caused injury with Gandasi on the head of her mother Kanchan Bai and Chhagan Singh gave Gandasi blow on the person of Jain Singh and Gokul. In her cross examination she stated that Narayan Singh, Vijay Singh and Lal Singh were her brothers against whom a report was lodged by Kalu and cross case was registered and injuries sustained by Badri Lal, Chhagan Singh, Bahadur Singh and Kalu were examined by Medical Officer. In her cross examination she stated that Narayan Singh, Vijay Singh and Lal Singh were her brothers against whom a report was lodged by Kalu and cross case was registered and injuries sustained by Badri Lal, Chhagan Singh, Bahadur Singh and Kalu were examined by Medical Officer. The police arrested his brothers Narayan Singh, Lal Singh and Vijay Singh in the cross case. She admitted that major part of her statement at the trial was not incorporated in her police statement (Ex.D-1). She also admitted that incident did occur all of a sudden. Prem Bai (PW-5) stated that accused Kalu gave Gandasi blow on the head and ear of Kanchan Bai, Ghanshyam caused injury on the head of Kanchan Bai with lathi and Chhagan Singh inflicted Pharsi blow on the foot of Jain Singh. When she was confronted with her police statement (Ex.D-2), she explained that whatever she deposed at the trial she narrated to the police but she did not know why the police did not write it. She further stated that there was no source of light at the place of incident and cross case was registered by the police on the report of Kalu and members of both the parties were arrested by the police. She admitted that her husband Gokul received injuries while he made attempt to cool down both the parties. Statement of Shyam Bai and Prem Bai get corroboration from the testimony of Jain Singh (PW-6). He made material improvements at the trial and disapproved the major part of his police statement (Ex.D-3). He also accepted that cross case was registered on the report of Kalu. Narayan Singh (PW-7) also disowned major part of his police statement (Ex.D-4). He admitted that cross case under section 307 I.P.C. was registered against him and charge sheet was filed. (14). Prem Shankar, IO (PW-19 admitted in the cross examination that on the basis of report (Ex.D-5) lodged by Kalu, he got the cross case registered and produced accused Badri Lal, Chhagan Singh, Bahadur Singh and Kalu Lal for medical examination. On completion of investigation he filed charge sheet (Ex.D-7) under sections 326, 307, 324, 323, 147, 148 and 149 I.P.C. against Babu Lal, Narayan Singh, Roshan Singh, Peetar @ Vijay Singh, Sujan Singh and Lal Singh in the court. He also admitted that in the village there was no source of light. (15). On completion of investigation he filed charge sheet (Ex.D-7) under sections 326, 307, 324, 323, 147, 148 and 149 I.P.C. against Babu Lal, Narayan Singh, Roshan Singh, Peetar @ Vijay Singh, Sujan Singh and Lal Singh in the court. He also admitted that in the village there was no source of light. (15). Factual situation emerges from the evidence on record may be summarised thus: (i) The incident occurred in the darkness as there was no source of light in the village. (ii) Cross causes were registered between the parties. (iii) The incident occurred all of a sudden and members of both the parties sustained injuries. (iv) Both parties had fought freely to have a trial of strength. (v) The prosecution could not establish motive behind the incident. (16). After giving our anxious consideration to the respective contentions of the learned counsel for the parties and considering the facts and circumstances of the case, it appears to us that both the parties were neighbours and there was no previous ill will between them and occurrence was a sudden affair. Some thing which has not been completely unravelled, might have sparked off the incident. Deceased Kanchan Bai received two lacerated wounds on root of left ear and pinna that proved fatal. Deceased Gokul was intervenor and he received two incised wounds on the right side of mid line of parietal region and left forehead. The evidence did not rule out the possibility of accidental blows during the free fight, in the heat of passion. The assault on the deceased does not appear to be premeditated one or calculated move. From the material on record the prosecution is able to establish beyond reasonable doubt that accused Kalu Lal, Ghanshyam, Badri Lal and Chhagan Singh although did not have any intention of causing such bodily injury as was likely to cause death of Kanchan Bai and Gokul an inference could be drawn that they had the knowledge that the injuries caused to Kanchan Bai and Gokul were likely to cause their death. As such the offence made out against the accused Kalu Lal, Ghanshyam, Badri Lal and Chhagan Singh in these circumstances was one covered by Section 304 Part II and not under section 302 I.P.C. (17). As noticed earlier, this was a case of sudden mutual fight between the parties. As such the offence made out against the accused Kalu Lal, Ghanshyam, Badri Lal and Chhagan Singh in these circumstances was one covered by Section 304 Part II and not under section 302 I.P.C. (17). As noticed earlier, this was a case of sudden mutual fight between the parties. There could, therefore, be no question of invoking the aid of section 149 I.P.C. for the purpose of imposing constructive criminal liability on the accused persons. The accused could be convicted only for the injuries caused by him by his individual acts. (18). In the ultimate analysis since the prosecution has not proved the guilt of accused Bahadur Singh and Lal Chand, we grant them benefit of doubt. Accused Kalu Lal, Badri Lal, Ghanshyam and Chhagan Singh are found guilty under section 304 Part II I.P.C. Accused Ghanshyam and Chhagan Singh are also found guilty for having committed offence under section 324 I.P.C. (19). For these reasons, we dispose of the instant appeals in the following terms: (i) We allow the appeal of appellants Bahadur Singh and lal Chand and acquit them of the charges under sections 302/149, 304 Part II/149, 324/149 and 323/149 I.P.C. Appellants Bahadur Singh and Lal Chand are in jail,they shall be set at liberty forthwith, if not required to be detained in any other case. (ii) We partly allow the appeal of appellants Kalu Lal, Ghanshyam Chhagan and Badri Lal and instead of section 302/149 we sentence each of them under section 304 Part II I.P.C. Looking to the fact that they have already undergone confinement for a period of more than six years, the ends of justice would be met in sentencing them to the period already undergone by them in confinement. We however also convict the appellants Ghanshyam and Chhagan under section 324 I.P.C. and sentence them to suffer one year rigorous imprisonment. Since they have already undergone the sentence, they shall be set at liberty forthwith if not required to be detained in any other case. We acquit the appellants Chhagan Singh, Badri Lal, Kalu Lal and Ghanshyam of the charges under sections 324/149 and 323/149 I.P.C. The impugned judgment of learned trial court stands modified as indicated above. August 1, 2006 (20). We acquit the appellants Chhagan Singh, Badri Lal, Kalu Lal and Ghanshyam of the charges under sections 324/149 and 323/149 I.P.C. The impugned judgment of learned trial court stands modified as indicated above. August 1, 2006 (20). These appeals have been listed under the heading of "To Be Mentioned" on the ground that the accused Chhagan Singh has not preferred any appeal, therefore he is not entitled to any relief. This opinion at first blush appears reasonable, but it is not acceptable in view of the ratio indicated in Gurucharan Kumar vs. State of Rajasthan [2003 IAD (SC) 217], wherein their Lordships of Supreme Court in para 32 indicated as under: "... This Court has laid down a judicious principle that even in a case where one of the accused has not preferred an appeal, or even if his Special Leve Petition is dismissed, in case relief is granted to the remaining accused and the case of the accused, who has either not appealed or whose Special Leave Petition has been dismissed, stands on the same footing, he should not be denied the benefit which is extended to the other accused. This has been held in Harbans Singh vs. State of U.P. (1982)2 SCC 101 , Raja Ram vs. State of M.P. (1994) 2 SCC 568 , Dandu Lakshmi Reddy vs. State of A.P. (1999)7 SCC 69 and Akhil Ali Jehangir Ali Sayyed vs. State of Maharashtra JT 2002(2) SC 158 = RLW 2003(1) SC 92." (21). In Kameshwar Singh vs. State of Bihar, JT 1992(2) SC 85, their Lordships of Supreme Court indicated that where the benefit of doubt is granted to co-accused persons in the appeal and the case of accused, who has not preferred any appeal, is not distinguishable with that of the co-accused persons, the benefit may be extended to the accused who has not filed appeal. (22). In this view of the matter accused Chhagan Singh although he has not preferred the appeal, is entitled to the relief which has been granted to appellants Kalu Lal, Ghanshyam and Badri Lal on the ground of parity. (23). (22). In this view of the matter accused Chhagan Singh although he has not preferred the appeal, is entitled to the relief which has been granted to appellants Kalu Lal, Ghanshyam and Badri Lal on the ground of parity. (23). Therefore, with certain modifications in the operative order dated July 31, 2006 we issue following directions: (i) We allow the appeal of appellants Bahadur Singh and Lal Chand and acquit them of the charges under Sections 302/149, 304 Part II/149, 324/149 and 323/149 I.P.C. Appellants Bahadur Singh and Lal Chand are in jail, they shall be set at liberty forthwith, if not required to be detained in any other case. (ii) We partly allow the appeal of appellants Kalu Lal, Ghanshyam and Badri Lal and instead of section 302/149 convict them under section 304 Part II I.P.C. Looking to the fact that they have already remained in confinement for a period of more than six years, the ends of justice would be met in sentencing them to the period already undergone by them in confinement. We also convict the appellant Ghanshyam under section 324 I.P.C. and sentence him to suffer one year rigorous imprisonment. The appellant Ghanshyam has already undergone the sentence. We however acquit the appellants Kalu Lal, Ghanshyam, and Badri Lal of the charges under sections 324/149 and 323/149 I.P.C. The appellants Kalu Lal, Ghanshyam and Badri Lal, who are in jail, shall be set at liberty forthwith, if not required to be detained in any other case. (iii) We are conscious of the fact that accused Chhagan Singh has not preferred any appeal, but we find that his case is not distinguishable with that of co-accused Kalu Lal, Ghanshyam and Badri Lal. Therefore in view of the ratio indicated in Gurucharan Kumar vs. State of Rajasthan (supra) we instead of section 302/149 convict accused Chhagan Singh under section 304 Part II I.P.C. Looking to the fact that he has already remained in confinement for a period of more than six years, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We also convict him under section 324 I.P.C. and sentence him to suffer one year rigorous imprisonment. The accused Chhagan Singh has already undergone the sentence. We also convict him under section 324 I.P.C. and sentence him to suffer one year rigorous imprisonment. The accused Chhagan Singh has already undergone the sentence. We however acquit the accused Chhagan Singh of the charges under sections 324/149 and 323/149 I.P.C. The accused Chhagan Singh, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case. (iv) The impugned judgment of learned trial court stands modified as indicated above."