Judgment Shiv Kumar Sharma, J.-Bharosi Gurjar, Smay Singh, Sahab Singh and Jagram (Appellants in Criminal Appeals No. 661/2003 and 752/2003) were placed on trial along with fourteen other co-accused persons before the learned Additional Sessions Judge (Fast Track) Hindaun City District Karauli, in Sessions case No. 45/2001 (14/2001). Learned judge vide Judgment dated 22.04.2003 though recorded acquittal of fourteen co-accused persons but convicted and sentenced the appellants as under:- Bharosi, Samay Singh, Sahab Singh: Under Section 302/34 IPC: Each to suffer imprisonment for life and fine of Rs. 500/., in default to further suffer three months rigorous imprisonment. Jagram: Under Section 325 IPC: To suffer simple imprisonment for three years and fine of Rs.500/., in default to further suffer one month simple imprisonment. Under Section 323 IPC: To suffer simple imprisonment for six months. Substantive sentences were directed to run concurrently. 2. Members of the complainant party viz. Badan Singh, Sumran, Bhonriya and Dharmay, who were the accused in Sessions case No. 50/2002, have preferred Criminal Appeal No. 660/2003 against the Judgment dated 22.04.2003 of the learned Additional Sessions Judge (Fast Track) Hindaun City, whereby they have convicted and sentenced as under:- Badan Singh, Sumran, Bhonriya: Under Section 324 IPC: Each of suffer simple imprisonment for two years and fine of Rs.. 500/., in default to further suffer one year simple imprisonment. Bhonriya: Under Section 326 IPC To suffer simple imprisonment for five years and fine of Rs. 500/., in default to further suffer one month simple imprisonment. Sumran Under Section 323 IPC: To suffer simple imprisonment for six months. Substantive sentences were directed to run concurrently. Dharmay: Under Section 323 IPC: Fine of Rs. 500. 3. The prosecution story of Sessions Case No. 45/2001 (14/2001) is woven like this:-On 110.2000 the informant Badan Singh submitted a written report at Police Station, Kudgaon stating therein that on his agricultural field which was popularly known as "Mainawala Khet" crop of Til was standing and ready for harvesting. On that day accused Samay Singh, Atar Singh, Ramdhan, Jagram, Lakhan Singh, Janak Singh, Raganti, Shanti, Laddo and Prem came to the field with the intention to cut the crop. On receiving the information about the said wrongful act of the accused, members of complainant party Gita, Ruma, Kisturi, Phoolbai, Bhonriya, Dharam Singh, Sumran and Maina reached to the field and asked the accused persons not to cut the crop. On receiving the information about the said wrongful act of the accused, members of complainant party Gita, Ruma, Kisturi, Phoolbai, Bhonriya, Dharam Singh, Sumran and Maina reached to the field and asked the accused persons not to cut the crop. The accused persons then gave beating to the members of the complainant party. Hearing the alarm Ram Swaroop and Raja Ram rushed to the field to save them. Thereupon other accused persons namely Bharosi, Pyar Singh, Jissi, Girraj, Mangu, Sugriv and Kadu also came armed with various weapons and encircled all the members of complainant party and Bharosi Gurjar inflicated a blow with Pharsi on the head of Ruma followed by a Dhariya blow by Sahab Singh on her neck and another Pharsi-blow by Samay Singh on her head and face, as a result of which Ruma fell down. Gita, Dharam Singh and other persons were also assaulted by the accused persons, as a result of which nine persons of the complainant party received injuries, who were removed to hospital. After about half an hour Ruma succumbed to the injuries. On that report a case under Sections 147, 148, 149, 447, 307 and 302 IPC was registered and investigation commenced. Dead body of deceased was subjected to autopsy, statements of witnesses were recorded, the accused were arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Hindaun City, district Karauli. Charges under Sections 147, 148, 323, 325, 325/149, 302 and 302/149 IPC were framed against the accused persons, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 17 witnesses and exhibited 42 documents. In the explanation under Sec. 313 CrPC., the accused claimed innocence. It was stated that the complainant party had come to the disputed land armed with various weapons and made assault as a result of which accused persons sustained injuries and cross case was lodged against the complainant party. Various documents were submitted to show that the accused persons were in actual possession over the disputed land. Eight witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants Bharosoi Gurjar, Smay Singh, Sahab Singh and Jagram as indicated herein above and other accused persons were however ordered to be acquitted. Various documents were submitted to show that the accused persons were in actual possession over the disputed land. Eight witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants Bharosoi Gurjar, Smay Singh, Sahab Singh and Jagram as indicated herein above and other accused persons were however ordered to be acquitted. 4. The facts giving rise to appeal No. 660/2003, on the other hand, are as under:-The FIR was registered under Sections 447 and 323 IPC at the Police Station Kudgaon on the basis of parcha bayan of injured Atar Singh, recorded on 110.2000 against appellants Badan Singh, Dharme, Sumran and Bhonriya. In the parcha bayan it was, inter alia stated that on 110.2000 around 11 AM while he alongwith his father Ram Prasad, brother Lakhan Singh and Ramdhan and their ladies Laddo, Shanti and Keshmati were reaping the crop of Til, Badan Singh, Maharaj singh, Bhonriya and Dharme came armed with swords and gandasis and started beating them resultantly he sustained injuries on his left foot, knee, elbow of left hand, right shoulder and head. Hearing their alarm Bharosi Lal, Mangu and other persons came over there and rescued them. Jagram and Lakhan also sustained injuries. After usual investigation charge sheet was filed under Section 323, 324 and 326 IPC. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Hindaun City, district Karauli. Charges under Sections 323, 324, 324/34 and 326/34 IPC were framed against the accused persons, who denied the charges and claimed trial. The prosectution in support of its case examined as may as 11 witnesses and exhibited 14 documents. In the explanation under Section 313 CrPC., the accused claimed innocence. One witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants Badan Singh, Dharme, Sumran and Bhonriya as indicated herein above. 5. It will be appropriate at this juncture to consider the injuries sustained by the deceased and other persons. .6. Death of deceased Ruma was indisputably homicidal in nature. As per postmortem report (Exhibit P.14) she received following ante mortem injuries:- 1. Oblique incised wound 4cm x 2cm x skin x muscle deep on right supra clevicular region with clean cut margin. .2. .6. Death of deceased Ruma was indisputably homicidal in nature. As per postmortem report (Exhibit P.14) she received following ante mortem injuries:- 1. Oblique incised wound 4cm x 2cm x skin x muscle deep on right supra clevicular region with clean cut margin. .2. Oblique lacerated wound 7cm x 4xm x skin and muscle and bone deep on right fronto parietal .part of skull with clotted dark red blood with fracture of right fronto part of skull. 3. Contusion 7cm x 3 cm of left parieto occipital part of skull with hemotoma. 4. Oblique abrasion 3cm x 2 cm on left back of chest. 5. Oblique abrasion 4cm x 2 cm on right scapular region. In the opinion of Dr. N.L. Sharma (PW-15) the cause of death was internal brain hemorrhage and coma. 7. Sumran vide injury report (Exhibit P-7) received following injuries:- 1. Oblique incised wound 3cm x ½ cm x skin and muscle deep on left elbow joint on upper 1/3rd part with bleeding. 2. Oblique lacerated wound 4cm x ½cm x skin and muscle deep on mid fronto parietal part of skull with bleeding. Bhonriya vide injury report (Exhibit P-8) received following injuries:- 1. Oblique lacerated wound 3cm x 1cm on skin and muscle deep on right parietal part of skull with bleeding. 2. Oblique lacerated wound 2cm x ½ cm on right hand ring finger. 3. Red contusion 6cm x 3cm with lower 2/3rd of left forearm with swelling and tenderness and deformity. 4. Red contusion 3cm x 2cm on lumber region. 5. Red contusion 3cm x 2cm on left leg upper 1/3rd part. 6. Red contusion 3cm x 2cm on right forearm lower 1/3rd part. Kisturi vide injury report (Exhibit P.9) received following injuries:- 1. Oblique incised wound 2 cm x l cm x skin and muscle deep on right shoulder blade and right scapular region with bleeding. 2. Red contusion 3cm x 2cm on upper 1/3rd of right forearm. Dharam Singh vide injury report (Exhibit P-10) received followig injuries:- 1. Oblique incised wound 2cm x ½cm x skin deep left arm upper 1/3rd part with bleeding. 2. Oblique lacerated wound 3cm x ½cm x skin deep on left parietal part of skull with bleeding. 3. Red contusion 3cm x 1cm on left shoulder joint. 4. Red contusion 3cm x 2cm on left back of chest. Oblique incised wound 2cm x ½cm x skin deep left arm upper 1/3rd part with bleeding. 2. Oblique lacerated wound 3cm x ½cm x skin deep on left parietal part of skull with bleeding. 3. Red contusion 3cm x 1cm on left shoulder joint. 4. Red contusion 3cm x 2cm on left back of chest. Gita vide injury report (Exhibit P-11) received following injuries:- 1. Oblique incised wound 6cm x 2cm x skin and muscle and upto bone deep in occipital parietal part of skull with bleeding. 2. Red contusion 5cm x 4cm of left wrist joint and left forearm with swelling and tenderness. 3. Red contusion 4cm x 2cm on back right side of chest lower part with tenderness. 4. Red contusion 3cm x 3cm on right shoulder joint with tenderness. Phoolbai vide injury report (Exhibit P-12) received following injuries:- 1. Red abrasion 5cm x 1cm back of left side of back of chest with tenderness. 2. Red contusion 3cm x 2cm of right leg upper 1/3 part with swelling. 3. Red contusion 3cm x 3cm on left hand with swelling of left hand finger ring and little fingers. 4. Red contusion 3cm x 2cm of right hand. 8. The accused party also sustained injuries. Vide injury report (Exhibit P-6) accused Jagram received one incised wound 1" x 1/3" x½" middle and medial Rt. Forearm margin clause vertically placed. Injuries found on the person of accused Lakahan Singh vide injury report (Exhibit P-7) are as under:- 1. Incised wound 1¼" x ¼" x 1/8" Lt. Side occipital region. 2. Lacerated wound 1" x ¼" x 1/8" on mid parietal region vertically placed. 3. Red contusion 2" x 1¼" middle and anterior lateral Rt. left arm. Accused Ram Prasad vide injury report (Exhibit P-8) received one abroded contusion 4" x 1" on lt. shoulder posteriorly. Accused Prem vide injury report (Exhibit P-9) received following injuries:- 1. Abrasion ¼ x ¼ middle and lateral Lt. palm 2. Red contusion 2" x 1" distal and posterior Rt. forearm 3. C/o pain Rt. buttock no visible injury seen. 4. lacerated wound 2½" x 1/3" x bone deep on Rt. parietal region posteriorly bleeding. Accused Atar Singh vide injury report (Exhibit P-3) received following injuries:- 1. Incised wound 1" x ¼ x bone deep Rt. side occipital region. 2. Incised wound 4" x 1" x bone deep on Lt. elbow joint posteriorly lt. forearm. buttock no visible injury seen. 4. lacerated wound 2½" x 1/3" x bone deep on Rt. parietal region posteriorly bleeding. Accused Atar Singh vide injury report (Exhibit P-3) received following injuries:- 1. Incised wound 1" x ¼ x bone deep Rt. side occipital region. 2. Incised wound 4" x 1" x bone deep on Lt. elbow joint posteriorly lt. forearm. 3. Incised wound 5" x 1½" x bone deep on left knee joint 4. Red contusion 2½" x 1" superior posterior Rt. shoulder. On X-ray vide X-ray report (Exhibit P-11) fracture of ulna was seen. Appeals No. 661/2003 and 752/2003: 9. We now proceed to consider the facts giving rise to appeals No. 661/2003 and 752/2003. Having carefully gone through the material on record we notice that super structure of the prosecution case is founded on the testimony of Sumran (PW 5), Bhonriya (PW 12), Kisturi (PW 14), Dharme @ Dharam Singh (PW 9), Gita (PW 13), and Phoolbai (PW 11), who are injured eye witnesses. Sumran (PW 15) in his deposition stated that on receiving information that Ram Prasad, Atar, Samay, Lakhan, Jagram , Janak, Sahab Singh, Ramdhan, Laddo, Shanti, Rajanti and Prem Bai had gone for reaping the crop of Til to the filed belonging to Naval, Bhonriya and Roop Singh, he alongwith Bhonriya, Dharam Singh, Phoolbai, Kisturi, Gita and Rooma rushed to the field. In the meanwhile Jinsi, Pyar Singh, Bharosi, Bhagoli, Kadu and Sugriv came armed with sharp edged weapons. Thereafter all of them started inflicting injuries. Bharosi gave blow with Pharsi on the head of Ruma, another blow was inflicted by Sahab Singh on her neck with Dharia and third blow was inflicted by Samay Singh with Pharsi on the head of Ruma, Gita, Bonriya, Dharam Singh and he (Sumran) sustained injuries. Statement of Sumran gets corroboration form the testimony of Bhonriya (PW 12), Kisturi (PW 14), Dharme @ Dharam Singh (PW 9), Gita (PW 13) and Phoolbai (PW 11). Supporting the facts incorporated in FIR the informant Badan Singh (PW.1) deposed that on receiving information about the incident he lodged the report (Exhibit P-1) at Police Station Kudgaon. In his cross examination he stated that the report Exhibit P-1 was written by Atar Singh Vakil. He also admitted that cross case was registered in regard to the said incident. Supporting the facts incorporated in FIR the informant Badan Singh (PW.1) deposed that on receiving information about the incident he lodged the report (Exhibit P-1) at Police Station Kudgaon. In his cross examination he stated that the report Exhibit P-1 was written by Atar Singh Vakil. He also admitted that cross case was registered in regard to the said incident. Atar Singh, Advocate (PW.2) deposed that on receiving the information of the incident he had gone to hospital and wrote report on the dictation of Badan Singh. Om Prakash, SHO Police Station, Kudgaon (PW 17) admitted in his cross examination that complainant party and accused party both had sustained injuries. The appellants in support of their defence examined Dr. Shri Mohan Meena (DW 1), Vishambhar Dayal (DW 2), Dr. Shri Ram Meena (DW 3), Mahesh Chand Soni (DW 4), Bala Sahai Sharma (DW 5), Vishnu Sharma (DW 6), Dr. Vasant Kishore Vyas (DW 7) and Badan Singh (DW 8). 10. Learned trial Court after having discussed the evidence on record held that both the parties fought together freely and nobody had right of private defence and each accused was responsible for his individual criminal act. 11. It is contended by the learned Counsel for the appellants that the prosecution has failed to prove that land in dispute was in actual physical possession of the complainant party. The prosecution witnesses failed to explain the injuries sustained by the appellants, which included grievous injuries by sharp edged weapons. The complainant party was the aggressor and had assaulted the appellants with deadly weapons and the appellants had exercised their right of private defence of the property and the person available to them under the law. The medical evidence was clearly in conflict with the ocular evidence and the learned Court below miserably failed to make a critical analysis of the prosecution evidence so as to thresh out the real facts of the case by separating the grain from the chaff . The prosecution has not produced independent witnesses of vicinity to substantiate its case and adverse inferences on that count should have been clamped against them. 12. The prosecution has not produced independent witnesses of vicinity to substantiate its case and adverse inferences on that count should have been clamped against them. 12. Per contra, learned Public Prosectutor and learned Counsel for the complainant canvassed that from the material on record the complainant party had established their possession over the land in dispute and since the appellants had formed unlawful assembly and they shared common intention, they had rightly been convicted and sentenced with the aid of Section 34 IPC. 13. We have pondered over the rival submissions and carefully scrutinised the ocular and the documentary evidence. 14. Factual situation emerges from the evidence on record may be summarised thus:- .(i) Deceased Ruma had sustained lacerated wound on right fronto parietal part of skull and contusion on left parieto occipital part of skull. .(ii) According to Dr. NL Sharma (PW 15) both the injuries on skull were caused by blunt weapon. Lacerated wound caused on right fronto parietal part of skull was sufficient in the ordinary course of nature to cause death and from the internal examination of the injury fracture of right fronto part of skull was found. Cause of death was internal brain hemmorhage and coma. (iii) Eye witnesses of the occurrence attributed injuries on the head of Ruma to appellants Bharosi and Samay Singh, Bharosi inflicted first blow from the sharp side of Pharsi on the head of Ruma, thereafter Sahab Singh caused injury on her neck with Dharia and the third injury was inflicted with sharp side of Pharsi on her head by Samay Singh. It could not be established as to who caused the injury on right fronto parietal part of skull which was found fatal. .(iv) Om Prakash, SHO (PW 17), who conducted investigation of the case, in his cross examination deposed that since the land was disputed one offence under Section 447 IPC was not made out. .(v) Complainant party and accused party both sustained injuries in the incident and both parties had gone armed with weapons to have a trial of strength. .(vi) Learned trial Court held that since no party was in possession of land in dispute, it could not be established as to who was the aggressor. 15. .(v) Complainant party and accused party both sustained injuries in the incident and both parties had gone armed with weapons to have a trial of strength. .(vi) Learned trial Court held that since no party was in possession of land in dispute, it could not be established as to who was the aggressor. 15. The principles which is well settled by precedents is that, if neither party can be held to be in actual possession of the property in dispute and if both parties go armed to have a trial of strength, then neither party can be held to have acted in exercise of the right of private defence irrespective of whether the one or the other party was the aggressor or the first to attack. In Vishvas Aba Kurane vs. State of Maharashtra ( AIR 1978 SC 414 ) their Lordships of the Supreme Court indicated that in a free fight no right of private defence is available to either party and each individual is responsible for his own acts. 16. In the instant case as already noticed, neither party had been in actual possession of the land in dispute and both parties had gone armed to have a trial of strength without having pre-concert between them, the appellants could not be held guilty with the aid of Section 34 IPC. In Jarnail Singh vs. State of Punjab AIR 1982 SC 70 it was held that since there was no pre-concert between the accused persons nor a meeting of minds between them before the offence took place, the conviction of the accused under Section 302/34 IPC was set aside and since he merely gave a takwa blow on the ear and caused simple injuries, the conviction was altered to one under Section 324 IPC. 17. In a similar situation their Lordships of the Supreme Court in Amrik Singh vs. State of Punjab 1993 CrLJ 2857 held that where the injury which proved to be fatal was not attributed to any one of the accused, the accused who inflicted one injury on the head of the deceased was not responsible for other fatal injury. In that case accused Kewal Singh struck a gandasa blow from its sharp side on the head of Amarjeet Singh (deceased). Autopsy surgeon found a lacerated wound on the scalp and incised wound on the front area of the head. In that case accused Kewal Singh struck a gandasa blow from its sharp side on the head of Amarjeet Singh (deceased). Autopsy surgeon found a lacerated wound on the scalp and incised wound on the front area of the head. He opined that the injuries were sufficient in the ordinary course of nature to cause death. The High Court held that Kewal Singh could not be held responsible for the other injury which was inflicted with blunt weapon and which proved to be fatal, therefore Kewal singh was convicted under Section 326 IPC. Having regard to the situation in which free fight is said to have taken place he was sentenced to suffer rigorous imprisonment for seven years. The Honble Supreme Court confirmed the view of High Court but reduced the sentence from seven years to three years rigorous imprisonment. 18. In the instant case, as already noticed, the prosecution witnesses could not satisfactorily answer as to who caused fatal injury on the head of Ruma. The lacerated wound, which proved to be fatal, was not attributed to any one of the appellants Bharosi and Samay Singh, therefore they could have been only convicted under Section 326 IPC. The appellant Sahab Singh, who caused simple injury with Dharia on the neck of Ruma could be held guilty for his individual act under Section 324 IPC. 19. Coming to the allegations against appellant Jagram, we notice that learned trial Court convicted him under Section 325 and 323 IPC on the basis of statement of Bhonriya (PW.12). A look at the testimony of Bhonriya reveals that he attributed injury on his left forearm, which was found to be grievous, to two persons viz. appellant Jagram and co-accused Ramdhan. In such a situation testimony of Bhonriya does not inspire condifidence. Since the case of appellant Jagram is not distinguishable with that of co-accused Ramdhan, who stood acquitted by the trial Court, we are of the view that charges under Sections 325 and 323 IPC are not established by the prosecution beyond reasonable doubt against appellant Jagram. Appeal No. 660/2003 20. As already noticed on the basis of parcha bayan of Atar Singh the FIR under Sections 447 and 323 IPC was initially registered and after usual investigation charge sheet was filed under Sections 323, 324 and 326 IPC against Badan Singh, Sumran, Bhonriya and Dharmay. Appeal No. 660/2003 20. As already noticed on the basis of parcha bayan of Atar Singh the FIR under Sections 447 and 323 IPC was initially registered and after usual investigation charge sheet was filed under Sections 323, 324 and 326 IPC against Badan Singh, Sumran, Bhonriya and Dharmay. Atar Singh (PW 1) in his deposition stated that while he along with his father Ram Prasad, brother Lakhan Singh and Ramdhan and their ladies Laddo, Shanti and Keshmati were reaping crop of Til, Badan Singh, Dharme, Sumran, Bhonriya, Gita, Ruma, Phoolbai and Kisturi came armed with swords and gandasas and started beating them. Badan Singh inflicted blow with gandasi on his head and Bhonriya gave sword blow on his right hand. Placing reliance on the testimony of Atar Singh, learned trial Court convicted Bhonriya under Section 326 IPC. Dr. Basant Kumar Vyas (PW 11) examined the injuries of Atar Singh and drew injury report (Exhibit P-31), according to which Atar Singh had sustained incised wound on his left hand and his left ulna was found fractured. No injury was found on the right hand of Atar Singh. Learned trial Court in the impugned Judgment observed that in fact Atar Singh would have said that he sustained injury on left hand but it was wrongly typed as right hand. We can not subscribe out view to this observation which is based on conjecture. In our opinion where many persons fought together freely it would not be possible to observe with precision and exactitude as to who was responsible for a particular injury. Althogh injured eye witnesses have made attempt to attribute injuries to Badan Singh, Sumran, Bhonriya and Dharmay but in the facts and circumstances of this case their evidence does not inspire confidence. Undoubtedly in the free fight Atar Singh, Jagram, Om Prakash , Lakhan and Prem Bai had sustained the injuries but since they themselves were the accused in cross case, possibility of over implication of Badan singh, Sumran, Bhonriya and Dharmay cannot be ruled out. We are, therefore, of the opinion that charges under Section 326,324, and 323 IPC are not established beyond reasonable doubt against Badan Singh, Sumran, Bhonriya and Dharmay. 21. We are, therefore, of the opinion that charges under Section 326,324, and 323 IPC are not established beyond reasonable doubt against Badan Singh, Sumran, Bhonriya and Dharmay. 21. For these reasons we dispose of the instant appeals in the followig terms:- .(i) We partly allow the appeals (No. 661/ 2003 and 752/2003) of Bharosi, Samay Singh and Sahab Singh and instead of Section 302/34 IPC, we convict the appellants Bharosi, and Samay Singh under Section 326 IPC and Sahab Singh under Section 324 IPC. Since appellants Bharosi and Samay Singh have already remained in confinement for a period of more than five years, the ends of justice would be met in sentencing them to the period already undergone by them in confinement. We sentence Sahab Singh to suffer simple imprisonment for one year. Appellant Sahab Singh has already been remained in custody for a period of more than one year, therefore, we direct that appellants Sahab Singh, Bharosi and Samay Singh, who are in jail, shall be set at liberty forthwith, if not required to be detained in any other case. .(ii) We allow the appeal (No. 752/2003) of appellant Jagram and acquit him of the charges under Sections 325 and 323 IPC. Jagram is on bail he need not surrender and his bail bonds stand discharged. (iii) We allow the appeal (No. 660/2003) of appellants Badan Singh, Sumran, Bhonriya and Dharmay and acquit them of the charges under Sections 326,324 and 323 IPC. They are on bail, they need not surrender and their bail bonds stand discharged. (iv) Impugned Judgment s of leaned trial Court stand modified as indicated above.