JUDGMENT 1. - Challenge in this appeal is to the judgment dated April 4, 2003 of the learned Additional Sessions Judge (Fast Track) Laxmangarh, whereby the appellants, six in number, were convicted and sentenced as under:- Prakash and Shri Chand: Under Section 302 IPC: Both to suffer imprisonment for life and fine of Rs.500/-, in default to further suffer rigorous imprisonment for three months. Under Section 148 IPC: Both to suffer rigorous imprisonment for one year and fine of Rs.200/-, in default to further suffer rigorous imprisonment for one month. Under Section 324 IPC: Both to suffer rigorous imprisonment for one year and fine of Rs.200/-, in default to further suffer rigorous imprisonment for one month. Under Section 323 IPC: Both to suffer rigorous imprisonment for six months and fine of Rs.200/-, in default to further suffer rigorous imprisonment for one month. Under Section 341 IPC: Both to suffer rigorous imprisonment for one month and fine of Rs.100/-, in default to further suffer rigorous imprisonment for five days. Under Section 427 IPC: Both to suffer rigorous imprisonment for six months and fine of Rs.100/-, in default to further suffer rigorous imprisonment for fifteen days. Pappu, Kishan Lal, Phoola and Harpyari: Under Section 302/149 IPC: Each to suffer imprisonment for life and fine of Rs.500/-, in default to further suffer rigorous imprisonment for three months. Under section 148 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs.200/-, in default to further suffer rigorous imprisonment for one month. Under Section 324/149 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs.200/-, in default to further suffer rigorous imprisonment for one month. Under Section 323/149 IPC: Each to suffer rigorous imprisonment for six months and fine of Rs.200/-, in default to further suffer rigorous imprisonment for one month. Under Section 341 IPC: Each to suffer rigorous imprisonment for one month and fine of Rs.100/-, in default to further suffer rigorous imprisonment for five days. Under Section 427 IPC: Each to suffer rigorous imprisonment for six months and fine of Rs.100/-, in default to further suffer rigorous imprisonment for fifteen days. The substantive sentences were ordered to run concurrently. 2. The prosecution story is woven like this:- Informant Naval Kishore (Pw.1) submitted a written report (Ex. Under Section 427 IPC: Each to suffer rigorous imprisonment for six months and fine of Rs.100/-, in default to further suffer rigorous imprisonment for fifteen days. The substantive sentences were ordered to run concurrently. 2. The prosecution story is woven like this:- Informant Naval Kishore (Pw.1) submitted a written report (Ex. P-1) on May 28, 1999 at Police Station Govindgarh stating therein that on the said day while they were constructing wall of their house Prakash along with 8-10 persons armed with Pharsis and lathis came over there and started demolishing the wall. When the complainant party objected, Prakash inflicted blow with Pharsi on the head of Devendra due to which his fell down, thereafter Sri Chand inflicted blow with pharsi on the head of Devendra, thereupon Devendra became unconscious. Harpyari and two other ladies caught hold of Brij Bihari and Pappu inflicted blow with lathi on the head of Brij Bihari. On raising alarm Shyam Lal and Kailash intervened. When the informant and others were going to police station they were belaboured on the way near Govindgarh Patrol pump by Sarvasukh, Kishan Lal, Harchand etc. Sarvasukh and Prakash inflicted blows with lathis on his (Naval Kishore) head and other family members also received injuries. Sum of Rs.1000/- and wrist watch were snatched by Sarvasukh. On that report case under sections 147, 148, 149, 323, 341 and 379 IPC was registered and investigation commenced. During the course of investigation Pappu @ Devendra succumbed to his injuries. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed against the appellants. In due course the case came up for trial before the learned Additional Sessions Judge, Fast Track, Laxmangarh. Charges under sections 148, 302, 302/149, 324, 323, 341 and 427 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 16 witnesses. In the explanation under Section 313 Cr.PC, the appellants claimed innocence. One witness was examined in support of defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. 3. We have heard the submissions advanced before us and scanned the material on record. 4. A look at the postmortem report (Ex. In the explanation under Section 313 Cr.PC, the appellants claimed innocence. One witness was examined in support of defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. 3. We have heard the submissions advanced before us and scanned the material on record. 4. A look at the postmortem report (Ex. P-25) of deceased Pappu @ Devendra demonstrates that following antemortem injuries were found on the dead body:- 1. Abrasion 6 x 4 and 3 x 2cm Nose. 2. Bruise Lt. upper eye-lid. 3. Abrasion 6 x 4cm Lt. side forehead. 4. Abrasion 5 x 2cm Lt. side of face. 5. Abrasion 6 x 5cm Rt. elbow post. 6. Incised wound 8 x 6cm occipital skull. 7. Incised wound 6 x 5cm Lt. side parietal occipital skull with red clotted blood. 8. Incised wound 7 x 1cm Lt. side parietal skull. 9. Bruise 6 x 4cm Rt. side parietal. 10. Bruise 5 x 7cm Lt. frontal parietal skull. In the opinion of Dr. Amar Singh (Pw.15) the cause of death was Coma due to head injury to skull and brain. 5. Naval Kishore (Pw.1) vide injury report (Ex.P- 5) received following injuries:- 1. Diffuse swelling 4.0cm x 3.0cm on scalp occipital. 2. Bruise (reddish) 11.0cm x 1 1/2cm on left shoulder anterior aspect 3. Bruise (reddish) 6.0cm x 3.0cm on Rt.shoulder. 4. Diffuse swelling 4.0cm x 3.0cm on Rt.wrist joint. 5. Diffuse swelling (Reddish) 2.0cm x 1.0cm on left wrist joint 6. Abrasion 2 1/2 cmx 1.0cm on Rt.knee joint lateral 7. Abrasion (reddish) 1.0cm x 1/2 cm on Rt.bigtoe 8. Bruise 2.0cm x 1 1/2 cm on left foot on bigtoe palmer aspect 9. Bruise 3.0cm x 1 1/2 cm on left foot at metaforsal region 10. Abrasion 1/2 cm x 1/4 cm on left elbow joint 11. Abrasion 1.0cm x cm on left forearm upper. Brij Bihari vide injury report (Ex.P-6) received following injuries:- 1. Lacerated wound 2.0cm x 1/4 cm x 1/4 cm on forehead 2. Hematoma 1/2 cm x 1/2 cm on Rt.hand on middle finger 3. Hematoma 1.0cm x 1.0cm on Rt.hand middle finger. 4. Bruise 4.0cm x 3.0cm on Rt.shoulder on back 5. At this juncture it may be noticed that cross case bearing FIR No.76/99 (Ex.D-4) was registered against the complainant party. Hematoma 1/2 cm x 1/2 cm on Rt.hand on middle finger 3. Hematoma 1.0cm x 1.0cm on Rt.hand middle finger. 4. Bruise 4.0cm x 3.0cm on Rt.shoulder on back 5. At this juncture it may be noticed that cross case bearing FIR No.76/99 (Ex.D-4) was registered against the complainant party. A look at Ex.D-4 reveals that Phoola Bai, Harpyari and Santosh received injuries on their head. The report was instituted by Kishan Lal against Bhom Singh Master, Naval, Pappu, Bahadur, Shyam Lal, Chameli and Kala members of complainant party. Appellant Prakash also received injuries which were incorporated in Ex.P-4. 6. Learned counsel for the appellants criticised the impugned judgment and made following submissions:- (i) Complainant party was raising a wall in front of the windows of the house of accused party. When objection was raised by the accused party four members of accused party were given beating. Cross case was registered against the members of complainant party. (ii) Origin and genesis of the case has been withheld by the prosecution since injuries sustained by the members of the accused party on the head were not explained. (iii) The accused party had the right of private defence of person and property. The complainant party came on the roof of the house of accused party. This fact is evident from the site plan (Ex.P-3) that the complainant party was aggressor. 7. We have pondered over the submissions. A look at the site plan (Ex.P-3) of the place of incident goes to show that the wall constructed by the complainant party was adjacent to the ventilator of the staircase of the accused party. Mark A-10 of site plan reads as under:- " LFkku jlksbZ eqLrxhl dh nhokj gS tks eqyfteku i{k ds thuk dh ckjh jks'kunku ls yxh gqbZ gSA nhokj eqyfteku i{k dh vkSjr Qwyk ckbZa }kjk rksM+uk crk;k gSA nhokj ekewyh VwVh gqbZ gSA " 8. Sapat Khan, SHO (Pw.14), who investigated the case, admitted in his cross examination thus:- " eqyfteku o ifjoknh i{k ds chp nhokj ds fu.kZ; dk fookn py jgk FkkA " 9. Sapat Khan, SHO (Pw.14), who investigated the case, admitted in his cross examination thus:- " eqyfteku o ifjoknh i{k ds chp nhokj ds fu.kZ; dk fookn py jgk FkkA " 9. Naval Kishore (Pw.1) in his examination in chief deposed thus:- " ftl edku dks ge cuok jgs Fks mldks Qwyk ckbZ mldh tks jlksbZ igys ls cuh gqbZ Fkh] dh nhokj dks rksM+us yxhA " In his cross examination he stated thus:- " ;g lgh gS fd nhokj rksM+us ij gh >xM+k 'kq: gqvkA " He admitted that in the cross case registered against the complainant party Sarvasukh was the witness, who was murdered and the members of complainant party were the accused in murder case:- " ;g lgh gS fd fd'ku yky us tks eqdnek gekjs f[kykQ fd;k mlesa loZlq[k xokg Fkk tks >wBk xokg FkkA ;g lgh gS fd gR;k dk eqdnek gekjs f[kykQ pyk FkkA " 10. Having analysed the material on record we find that there was a melee at the time of incident and the two groups indulged in a free fight resulting in injuries to persons of both groups and death of one. 11. In Dharman v. State of Punjab, AIR 1957 SC 324 there was a dispute regarding Shamlati land existed between the parties. The accused claimed that the land was in their possession whereas the party of the deceased put forward the claim that the land had been in their possession for many years. On the date of the incident a fight ensued. The deceased died in the course of a sudden and free fight by the injury inflicted by the appellant. The deceased's party was also armed with dangerous weapons. It was held by the Supreme Court, that when two such contending parties, each armed with weapons, when clashed and in the course of free fight some injuries were inflicted on one party or the other, it could not be said that either of them acted in cruel or unusual manner and the case against the appellant clearly fell within Exception 4 to Section 300 IPC. 12. Ratio indicated in Dharman v. State of Punjab (supra) is squarely applicable to the facts of the instant case. Appellants Prakash, Phoola Bai and Harpyari received injuries and the prosecution witnesses did not explain as to how they received injuries. 12. Ratio indicated in Dharman v. State of Punjab (supra) is squarely applicable to the facts of the instant case. Appellants Prakash, Phoola Bai and Harpyari received injuries and the prosecution witnesses did not explain as to how they received injuries. Thus origin and genesis of the incident appears to have been withheld by the prosecution. Evidently the incident did occur all of a sudden and both parties fought freely. The injury on head received by deceased, which proved fatal had been attributed to appellants Prakash Chand and Shri Chand and they did not behave in an unnatural or cruel manner. Thus the case against Prakash Chand and Shri Chand comes within the purview of Exception 4 to Section 300 IPC. 13. That takes us to the allegations made against other appellants. In Kambi Nanji v. State of Gujarat, AIR 1970 SC 219 their Lordships of the Supreme Court indicated that where there was a melee at the time of incident and the two groups indulged in a free fight resulting in injuries to persons of both groups and death of two, if the court comes to the conclusion that the injuries sustained by the persons were in the course of a free fight then there is no question of common object and only those persons who are proved to have caused injuries or death can be held guilty for the offence individually committed by them. 14. In Munir Khan v. State of U.P., AIR 1971 SC 335 it was indicated that in a mutual fight there is no common object and none of the accused can be convicted by having recourse to section 149 IPC. 15. Having analysed ocular and documentary evidence we notice that complainant party and accused party had no previous enmity and there was a melee at the time of incident and two groups indulged in a free fight resulting in injuries to persons of both groups and death of Pappu @ Devendra. Members of complainant party were also armed with weapons and in the fight appellants Prakash Chand, Poohla Bai and Harpyari had sustained injuries. The prosecution witnesses did not explain those injuries. This fact gives rise to the inference that the prosecution is guilty of suppressing the genesis and origin of the occurrence. Members of complainant party were also armed with weapons and in the fight appellants Prakash Chand, Poohla Bai and Harpyari had sustained injuries. The prosecution witnesses did not explain those injuries. This fact gives rise to the inference that the prosecution is guilty of suppressing the genesis and origin of the occurrence. Since it was a sudden fight and without premeditation there was no common object and only those persons who are proved to have caused injuries or death can be held guilty for the offence individually committed by them. The prosecution in this case, is only able to establish that appellant Prakash Chand and Shri Chand committed offence of culpable homicide not amounting to murder. Charges against Phoola, Kishan Lal, Pappu and Harpyari however could not be establish beyond reasonable doubt. 16. For these reasons, We dispose of the instant appeal in the following terms:- (i) We partly allow the appeal of Prakash Chand and Shri Chand and instead of section 302, we convict them under section 304 Part II read with 34 IPC. We however acquit them of the charges under sections 148, 324, 323/149, 341 and 427 IPC. Looking to the fact that the appellants have already undergone confinement for a period of more than six years and three months, the ends of justice would be served in sentencing them to the period already undergone by them in confinement. Appellants Prakash Chand and Shri Chand, who are in jail, shall be set at liberty forthwith, if they are not required to be detained in any other case. (ii) We allow the appeal of Phoola, Kishan Lal, Pappu and Harpyari and acquit them of the charges under sections 148, 302/149, 324/149, 323/149, 341 and 427 IPC. These appellants are on bail, they need not surrender and their bail bonds stand discharged. (iii) The impugned judgment of learned trial court stands modified as indicated above. Appeal Disposed of *******