JUDGMENT 1. - The appellants, four in number, were put to trial before learned Additional Sessions Judge (Fast Track) No. 2, Kota. Learned Judge vide judgment dated November 20, 2002 convicted and sentenced the appellants as under : Mahaveer U/s. 302 and Radhey Shyam, Manphool and Kaloo U/s. 302/149 IPC : To suffer imprisonment for life and fine of Rs. 1,000/- in default to further suffer rigorous imprisonment for one month. Mahaveer & Radhey Shyam : U/s. 147 IPC : Both to suffer rigorous imprisonment for one year. U/s. 341 IPC : Both to suffer rigorous imprisonment for one month. U/s. 323 IPC : Both to suffer rigorous imprisonment for one year. U/s. 324/149 IPC : Both to suffer rigorous imprisonment for two years. Manphool & Kaloo : U/s. 148 IPC : Both to suffer rigorous imprisonment for two years. U/s. 323/149 IPC: Both to suffer rigorous imprisonment for two years. U/s. 324 IPC: Both to suffer rigorous imprisonment for two years. U/s. 341 IPC : Both to suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently. 2. The prosecution case is founded on Parcha Bayan of injured Manoj (Ex.P-21) recorded on July 10, 2001 at 9.45 A.M. at hospital by SHO Police Station Khatoli. In the Parcha Bayan Manoj stated that on the said day around 7 A.M. while he was returning from the field, he was belaboured by Mahaveer, Manphool, Radhey Shyam, Surendra and Kalu. Mahaveer inflicted three-four blows with lathi on his head and one blow on the waist. When his father made attempt to intervene, he was also given beating. The incident was witnessed by Manglya and Rampal. On that parcha bayan a case was registered under sections 341, 323, 307 and 147 IPC and investigation commenced. Necessary memos were drawn, statements of witnesses were recorded, accused were arrested. During the course of investigation injured Manoj succumbed to his injuries and section 302 IPC was added. 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) No. 2, Kota. Charges under sections 147 or 148, 302, 323 or 323/149, 341, 307/149 and 302/149 IPC were framed against the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Kota. Charges under sections 147 or 148, 302, 323 or 323/149, 341, 307/149 and 302/149 IPC were framed against the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. In the explanation under Sec.313 Cr.P.C, the appellants claimed innocence. One witness in support of defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. As per injury report (Ex.P-6) Manoj received following injuries : 1. Diffuse swelling (5 x 3 cm) placed on scalp on parietal region. 2. Swelling (4 x 3 cm) placed on lumbar region. 3. Diffuse swelling (4 x 3 cm) placed on L. waist. Autopsy on the dead body of Manoj was performed by Dr. P.K. Tiwari (Pw.17) and as per Post Mortem report (Ex.P-33) the cause of death was coma as a result of head injury. 4. We have heard rival contentions and scanned the record. 5. A close scrutiny of material on record reveals that a cross case bearing FIR No. 141/2001 (Ex.D-5) was also registered against deceased Manoj and his father on the parcha bayan of Radhey Shyam (appellant herein) wherein he stated that Manoj was having Dharia and Bajranga had lathi and they gave beating to him. When Surendra and Mahaveer tried to save him they were also given beating. In the said incident Radhey Shyam vide injury report Ex.D-7 received following three injuries : (i) Incised wound 3 x 1 x 1 cm on Left parietal region. (ii) Diffuse swelling 5 x 2 x 1 cm on left elbow. (iii) Abrasion 1/2 x 1/2 x 1 cm on middle finger of left hand. Injury report (Ex.D-8) of Mahaveer reads as under : 1. Bruise (4 x 2 cm) placed on Rt. side of chest. 2. Swelling (3 x 2 cm) placed on scalp Lt. parietal region. 3. Abrasion (2 x 2 cm) placed on Lt. forearm. 6. Coming to the prosecution case we notice that it is founded on the testimony of Bajrang Lal (Pw.11). He stated that on the date of incident his son Manoj had gone to the field alone. 2. Swelling (3 x 2 cm) placed on scalp Lt. parietal region. 3. Abrasion (2 x 2 cm) placed on Lt. forearm. 6. Coming to the prosecution case we notice that it is founded on the testimony of Bajrang Lal (Pw.11). He stated that on the date of incident his son Manoj had gone to the field alone. Hearing his cries when he and his wife rushed to place of incident they saw appellants giving beating to Manoj. In his cross examination he admitted that the cross case was registered against, him on the report of the accused party. Bhanwar Singh Investigating Officer (Pw.15) also admitted that cross case was registered against Bajrang Lal and deceased Manoj. 7. Fact situation emerges from the material on record may be summarised thus : (i) Members of complainant party and the accused party were resident of the same village. (ii) Appellants Mahaveer and Radhey Shyam also sustained injuries during the incident. Out of three injuries received by Mahaveer one was over left parietal region. (iii) Cross cases were registered between the parties. (iv) Injuries sustained by Mahaveer and Radhey Shyam were not explained by the prosecution witnesses. (v) Incident occurred all of sudden and both the parties fought freely. 8. 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 the 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. 9. Ratio indicated in Dharman v. State of Punjab (supra) is squarely applicable to the facts of the instant case. 9. Ratio indicated in Dharman v. State of Punjab (supra) is squarely applicable to the facts of the instant case. Appellants Mahaveer and Radhey Shyam both received injuries on the head 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. Only one injury on the head of deceased Manoj with lathi has been attributed to appellant Mahaveer and he did not behave in an unnatural or cruel manner. Thus the case against Mahaveer comes within the purview of Exception 4 to Section 300 IPC. 10. 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 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. 11. 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. 12. 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 Manoj. Members of complainant party were also armed with weapons and in the fight appellants Mahaveer and Radhey Shyam sustained injuries. The prosecution witnesses did not explain these 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 Mahaveer and Radhey Shyam sustained injuries. The prosecution witnesses did not explain these 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 Mahaveer committed offence of culpable homicide not amounting to murder. Charges against Radhey Shyam, Manphool and Kaloo however could not be established beyond reasonable doubt. 13. For these reasons, we dispose of instant appeal in the following terms : (i) We allow the appeal of appellants Radhey Shyam, Manphool and Kaloo and acquit them of the charges under sections 148, 341, 324, 323/149 and 302/149 IPC. All these appellants are on bail, they need not surrender and their bail bonds stand discharged. (ii) We partly allow the appeal of appellant Mahaveer and instead of section 302 we convict him under section 304 Part II IPC. Looking to the fact that the appellant has already undergone confinement or a period of more than six years and five months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We however acquit him of the charges under sections 147, 341, 323 and 324/149 IPC. Appellant Mahaveer, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (iii) Impugned judgment of learned trial court stands modified as indicated above. Appeal of M Partly Allowed - Appeal of other three Allowed. *******