JUDGMENT 1. - This appeal impugnes the judgment dated 30th May, 2003 rendered by Additional Sessions Judge (Fast Track) No.2, Kota whereby the appellant Prem Shanker was convicted in the offence under Section 302, Hemant under Section 324 and Bhanwar Lal under Section 323 of Indian Penal Code and sentenced as under: Under section 302 Indian Penal Code Imprisonment for life and a fine of Rs. 5,000/-; in default of payment of fine to further undergo rigorous imprisonment for six months. Under section 324 Indian Penal Code Rigorous Imprisonment for two years and a fine of Rs. 2,000/-; in default of payment of fine to further suffer simple imprisonment for two months. Under section 323 Indian Penal Code Rigorous Imprisonment for six months and a fine of Rs. 1,000/-; in default of payment of fine to further undergo simple imprisonment for one month. 2. The facts necessary for the disposal of this appeal succinctly stated are that on 19th July, 2001 at about 12.00-1.00 PM, PW/12 Shmabhu Dayal, Omprakash and Chand Singh went to till their field by tractor. Two hours prior to them Bajrang Lal, Bhagwan Swaroop, Ramesh Chand, Ramkalyan, Chouthmal, Ramcharan, Satyanarayan, Jagatram, Kesarilal and Kesasri Lal went to cut the acacia trees and bushes standing in one field measuring 7 bighas. Having cut the acacia trees and bushes, they ploughed the field and thereafter while returning, all of them reached the road near minor, they found that the accused persons namely Dhanraj, Prem Shankar, Bhanwar Lal, Babulal, Surajmal, Ishwar Chand, Hemant, Satyanarayan, Deepak, Ramkumar, Chouthmal and Sitaram had blocked the road with two tractors. It is alleged that no sooner did they see them, they immediately began assaulting upon them with lethal weapons viz. Sword, Dharia and lathis. It is further alleged that the accused Prem Shanker, who was armed with Dharia, hit a blow at the back of skull of the complainant's father Ram Kalyan as a result of which bleeding started and he fell on the ground. The accused Hemant gave a blow of Dharia on the head of Jagatram and thereafter all the accused persons jointly started beating the complainant party with the weapons. This occurrence took place at 2.00-2.30 P.M. The complainant's father Ram Kalyan succumbed to his injuries on the spot. The accused Hemant gave a blow of Dharia on the head of Jagatram and thereafter all the accused persons jointly started beating the complainant party with the weapons. This occurrence took place at 2.00-2.30 P.M. The complainant's father Ram Kalyan succumbed to his injuries on the spot. The complainant PW-12 Shambhu Dayal submitted a written report Ex.P/26 before S.H.O. Police Station Budhadeed whereupon he lodged the FIR Ex.P/41 and investigation commenced. 3. The Investigating Officer prepared the site plan Ex.P/27, recorded the statements of the witnesses acquainted with the facts and circumstances of the case under Section 161 of Criminal Procedure Code and got the injured persons medically examined. The autopsy was performed on the dead body of the deceased Ram Kalyan, blood smeared soil was collected vide memo Ex.P/13, and control soil was taken vide memo Ex.P/14. The accused persons namely Satyanarayan, Ishwar Prasad, Chotmal, Deepak Pareta, Bhanwar Lal, Prem. Shanker, Babu Lal, Suraj Mal, Hemant Pareta, Ram Kumar and Sita Ram were arrested vide memos Ex.P/3, P/21, P/30, P/31, P/32, P/42, P/43, P/44, P/45, P/46 and P/47 respectively, the subject of the offences namely Kutiya, Lathies etc. were seized at their instance and after usual investigation the accused-persons were sent for trial to the Court. 4. All the accused persons were indicted for the offence under Section 148, 341, 302 in alternate 302/149, 324, 323, in alternate 324/149 and 323/149 of Indian Penal Code who did not plead guilty and claimed trial. In order to further its version, the prosecution examined as many as 28 witnesses. In their explanation under Section 313 of Criminal Procedure Code they claimed innocence and pleaded that on the date of occurrence at about 1.30-2.00 P.M. Prem Shanker, Dhanraj, Ishwar Prasad and Hemant were returning to their home having looked after the crop of Urad standing in their field. On the way, Bhagwan, Om Prakash, Ramesh Chand, Keshri Lal, Papu @ Shambu, Chand Singh, Bajrang Lal, Ratna, Ram Charan, Satyanarayan and Choutmal, met, who were armed with deadly weapons viz. Sword, Dhariya, Kutiya and lathies. They assaulted upon them as a result of which Dhanraj and Ishwar Lal fell on the ground. Prem Shanker and Hemant went to the village and brought the villagers on the spot. Ramklayan sustained injuries from tractor. Sword, Dhariya, Kutiya and lathies. They assaulted upon them as a result of which Dhanraj and Ishwar Lal fell on the ground. Prem Shanker and Hemant went to the village and brought the villagers on the spot. Ramklayan sustained injuries from tractor. After completion of trial all the accused persons except the appellants were acquitted of all the charges and appellants were convicted and sentenced as indicated hereinabove. 5. We have heard the submissions advanced by the learned counsel for the appellants, learned Public Prosecutor appearing for the State and scanned the material available on record. 6. The learned counsel for the appellants had advanced the following submissions : (i) that the report Ex.P/26 whereupon the FIR Ex.P/41 has been lodged is concocted and fabricated as it has been registered after consultation to counter their FIR. (ii) that the evidence of the prosecution witnesses is not worthy of credence as they have made improvement upon their earlier statements given before the police during investigation. (iii) that the prosecution has not come with the immediate cause of occurrence and the genesis of the occurrence has been suppressed. (iv) that the injuries sustained by the appellants Prem Shanker, Ram Kumar, Ishwar Prasad and Hemant Ram have not been explained by the prosecution witnesses. More so, the injuries of the deceased Dhanraj have also not been explained by the prosecution and the suppression of the genesis of the occurrence adversely influence the prosecution case. (v) that the field where the complainant party is said to have gone to cut he acacia trees and shrubs belongs to the accused party and they obtained stay against them. Even from the evidence of PW/15 Ram Charan it is tangible that the complainant party was bound down under Section 107 and 116 of Criminal Procedure Code by the competent Court. (vi) That the complainant party endeavoured to take possession of their land and the accused appellants acted in their private defence to their person and property. (vii) that the accused appellants had a right of private defence to their person and property and they have not acceded to their right. (viii) that the learned trial Court has not considered these aspects nor has properly appreciated the evidence of the prosecution witnesses and thus the criminal appeal deserves to be allowed and the conviction and sentences awarded to the appellants are liable to be set aside. 7. (viii) that the learned trial Court has not considered these aspects nor has properly appreciated the evidence of the prosecution witnesses and thus the criminal appeal deserves to be allowed and the conviction and sentences awarded to the appellants are liable to be set aside. 7. Per Contra, the learned Public Prosecutor appearing for the State has submitted that the reasons assigned by the trial Court with regard to the order of conviction of the appellants are based upon proper appreciation of evidence led by the prosecution in the case. He has further urged that the evidence of PW/5 Bajrang Lal, PW/10 Satyanarayan, PW/12 Shambhu Dayal, P/13 Ramesh Chand, P/16 Jagat Ram, P/19 Chouthmal, PW/23 Bhagwan Swaroop, PW/24 Om Prakash and PW/25 Ramesh Chand is cogent and satisfactory with the hypothesis of the guilt of the appellants and they had no right of private defence to cause the grievous injury on the vital part (skull and liver) of the body of deceased Ram Kalyan and therefore, the plea of the right of private defence of accused appellants is not tenable and acceptable. 8. Vide postmortem report Ex.P/22 following anti-mortem injuries were found on the dead body of the deceased Ram Kalyan 1. Abrasion - 10 x 3cm on RT side frontal scalp. 2. Abrasion - 5 x 3 cm on LT Mastoid process. 3. Lacerated wound 6 x 2 cm x cartilage deep on Lt. Pinna. 4. Abrasion on 6 x 2cm on Rt Clavicle. 5. Abrassion 1 x 1cm on Rt. Shoulder. 6. Abrassion 2 x 3cm on Rt cubital fossa. 7. Abrassion 7 x 6cm on Rt cheek. 8. Abrassion 2 x 2cm on Rt knee cap and leg. 9. Diffuse swelling on Rt. side of chest 10. Multiple abrasion 1/2 x 1/2 cm on back of Rt humerus NAD Membersane-small extradural hemetoma present on Rt. sides Brain-contusions 3x3cm to 2 x 2 cm present on Rt fronto parietal region & hemetoma in brain stem. In the opinion of PW/8 Dr. Ashok Moondara the cause of death was coma due to anti-mortem head injury with cumulative effect of right lung injury which was sufficient to cause death in ordinary course of nature. sides Brain-contusions 3x3cm to 2 x 2 cm present on Rt fronto parietal region & hemetoma in brain stem. In the opinion of PW/8 Dr. Ashok Moondara the cause of death was coma due to anti-mortem head injury with cumulative effect of right lung injury which was sufficient to cause death in ordinary course of nature. PW/5 Bajrang Lal vide injury report Ex.P/4 received following injury: "C/o Pain left shoulder no external or internal injury detected." Injured PW/13 Ramesh Chand vide injury report Ex.P/5 received following injury: "Abrasion 4 cm x 3cm on right thighs laterally covered by scap radish brown." PW/23 Bhagwan Swaroop vide injury report. Ex.P/7 received following injury: "abrasion 1.5 cm x 0.5 cm scap radish brown on right shoulder." PW/24 Om Prakash vide injury report Ex.P/8 received following injury: "Incised wound 5 cm x 1/2 cm x deep on dorsum of hand left c/o Pain right thumb no external or internal injury." PW/12 Pappu @ Shambu Dayal vide injury report Ex.P/11 received following injury: "abrasion 2"x l/4" on dursol aspect of left front. Abrasion ⅙"x ⅙" on dorsal aspect at Rt. index finger. PW/15 Jagat Ram vide injury report Ex. P/12 received following injuries: "Lacerated wound 3"x l/4"x scalp deep on left parietal bone 1" away from midland Abrasion 1/4"x 1/4" dorsal aspect of Rt index finger. Abrasion 1/4"x 1/4" on dorsal aspect of Lt Index Finger. 9. At this juncture injuries sustained by the accused party in the same incident may also be noticed. Appellant Hemant Kumar vide injury report Ex.D/1 received following injuries: "Abrasion 2cm x 2cm on left index finger on proximal phalans dorsal covered by reddish brown scab. Appellant Prem Shanker vide injury report Ex.D/2 received following injuries: "1. Swelling on right hand & forearm lower 1/2 with bruise 5 cm x 4cm on lower 1/2 forearm anterior bluish black, 2. Abrasion 1.5 cm x lcm covered by reddish brown scap on swelling left hand dorsally 3. Abrasion 4cm x lcm covered by simple reddish brown scab on right side of chest 4. C/o pain left thigh-no external or internal injury detected. Appellant Ram Kumar vide injury report Ex.D/3 received following injury: "Swelling right forearm and right upper arm upper ⅔ lower 1/2. Appellant Ishwar Prasad vide injury report Ex.D/5 received following injuries: 1. Incised wound 4x2" Bone deep medial aspect of right beg. 2. C/o pain left thigh-no external or internal injury detected. Appellant Ram Kumar vide injury report Ex.D/3 received following injury: "Swelling right forearm and right upper arm upper ⅔ lower 1/2. Appellant Ishwar Prasad vide injury report Ex.D/5 received following injuries: 1. Incised wound 4x2" Bone deep medial aspect of right beg. 2. Incised wound 2 1/2 x 1/4" skin deep left leg into middle. 3. Incised wound 4 x 1/2 x skin deep in left foot. 4. Incised wound 2 1/4"x 1/2" bone deep in Rt side of forehead. 5. Incised wound 1 1/2"x 1/4" x skin deep in chin. 6. Incised wound 1"x 1/4"x skin deep Rt. knee. 7. Incised wound 2 1/2" x 1/4" on left Upper Lip. 8. Incised wound 2 1/2"x 1/4x bone deep of upper of left orbit. 9. Incised wound 4 x 1/4 x scalp deep on head parietal region. In the same incident Dhanraj is alleged to have been assaulted upon by the complainant party who succumbed to his injuries. Vide postmortem report Ex.D/46 the following anti-mortem injuries were found on his body. "1. Incised wound 3"x 1/2"x bone deep on Rt cheek injury. 2. Incised wound 6"x 1" bone deep on left cheek just anterior to six molar. 3. Lacerated wound 2 1/2"x 1/4" bone deep on left tempero parietal bone. 4. Contusion 3 x 1cm left cheek. 5. Incised wound 2"x 1/4"x skin deep on right upper orbital region 6. Incised wound 4"x 1"x bone deep on dorsal aspect of left forearm into lower ⅓ all membranes arteries veins are cut. 7. Incised wound 3" x 1"x bone deep in left leg in its lower ⅓ membranes arteries veins are cut. 8. Incised wound 6"x 1"x bone deep on right forearm in its upper ⅓ veins arteries are cut. 9. Fracture left labia and fibula bone with lower ⅓. Fracture right radius ulna bone with ⅓. Fracture upper radius and ulna it its lower ⅓. Fracture of right and left maxillae bone. Fracture of left temper of bone in three pieces. Fracture left parietal bone. 10. Before adverting to the arguments advanced by the learned counsel, we fell to summarise the fact situation emerging from the material on record as under: (i) Members of complainant party are near relatives. (ii) The land measuring 7 bighas is being claimed by both the parties. The accused appellant Prem. Fracture left parietal bone. 10. Before adverting to the arguments advanced by the learned counsel, we fell to summarise the fact situation emerging from the material on record as under: (i) Members of complainant party are near relatives. (ii) The land measuring 7 bighas is being claimed by both the parties. The accused appellant Prem. Shanker gave a blow of Dharia on the had of Ram Kalyan that proved fatal. (iii) There was no allegation against Hemant and Bhanwar Lal in the FIR Ex.P/26 for having inflicted any blow with any weapon on the person of Ram Kalyan. (iv) Cross cases were registered between the parties. (v) Members of the accused party sustained incised and lacerated wounds on the vital parts of the body. (vi) The injury sustained by the accused party have not been explained by the prosecution witnesses. (vii) Albeit, the accused party lodged FIR No.97/2001 with Police Station Budhadeet prior to the complainant party. The FIR No. of the instant appeal is 98/2001 i.e. Ex.P/41. Both the cases have been registered in the offences under Sections 147, 148, 323, 324 and 302 of Indian Penal Code. The place of occurrence and the time of occurrence of both the cases is the one. (viii) Both the parties have sacrificed one person of their family during the incident. The complainant party lost Ram Kalyan and the accused party parted with Dhanraj. Both the parties have come forward alleging that the opposite party assaulted upon them and committed the murder of Ram Kalyan and Dhanraj as the case may be. (ix) Incident occurred all of sudden and both the parties fought freely. (x) It is not established as to who the really aggressor was?. "It is a well-settled law that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: "1. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; 2. that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; 3. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; 2. that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; 3. that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case." (See Lakshmi Singh Vs. State of Bihar, SC P. 401 Para 12 ). Further, it is important to point out that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one." Similar situation arose before the Hon'ble Supreme Court in Dharam v. The State of Punjab ( AIR 1957 SC 324 ) 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. 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 feel within the Exception 4 to Section 300 Indian Penal Code. 12. That takes us to the allegations made against other appellants. 12. 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 ad 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.13. Albeit, the prosecution has not come up with the case of sudden and free fight in the instant appeal and on the contrary has, pleaded a right of private defence to their person and property but the First Information Report No.97/2001 and 98/2001 registered in Police Station Budhdeet reveal that the place of occurrence and the time of occurrence of both these cases is the same which leads us to hold that on the date of the incident a fight ensued between both the parties and both the parties were armed with deadly weapons as a result of which Ram Kalyan of the complainant party and Dhanraj of the accused party died. The arguments advanced by the learned counsel for the accused-appellants with regard to the right of private defence to their person and property is not found to be tenable and acceptable. It is tangibly a case of free fight.14. Ratio indicated in Dharam v. State of Punjab (supra) is squarely applicable to the facts of the instant case. Appellants Prem Shanker, Hemant and Bhanwar Lal received injuries (including one accused Ishwar Prasad who was facing trial before the lower court) 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 appellant Prem Shankar and he did not behave in an unnatural or cruel - manner. Thus, the case against Prem Shanker comes within the purview of Exception 4 to Section 300 Indian Penal Code.15. The injury on head received by deceased, which proved fatal had been attributed to appellant Prem Shankar and he did not behave in an unnatural or cruel - manner. Thus, the case against Prem Shanker comes within the purview of Exception 4 to Section 300 Indian Penal Code.15. So far as the appellant Hemant is concerned, he is alleged to have given a blow of Dhariya on the had of injured Jagat Ram and Om Prakash. Vide injury report Ex.P/12 Jagat Ram is found to have received three simple injuries caused by blunt weapon and the injured Om Prakash vide injury report Ex.P/8 is found to have received one incised wound 5 cm x 1/2 cm x muscle deep on dorsum of left hand edges joining. PW/4 Dr. Shanker Lal has stated this injury to have been caused by sharp object. Thus, from the ocular and medical evidence available on record the offence under Section 324 of Indian Penal Code is found to be proved beyond reasonable doubt against the accused appellant Hemant and thus, the finding of the learned trial Court is sustained to this effect.16. The learned trial Court has convicted the accused appellant Bhanwar Lal in the offence under Section 323 of Indian Penal Code on the ground that he gave a lathi blow on Bajrang and caused simple injury. Vide injury report Ex.P/4 of the injured Bajrang Lal, no external or internal injury is proved to have been detected. PW/4 Dr. Shanker Lal has stated that injured Bajrang Lal was complaining of pain on his shoulder but there was no external or internal injury visible on his body. PW-5 Bajrang Lal in his deposition has stated that the accused Bhanwar Lal gave a lathi blow on his left shoulder, as a result of which he became unconscious but the evidence of Bajrang Lal does not get any support from the medical report Ex.P/4. The testimony of Bajrang Lal to this effect does not stand corroborated by any other independent evidence. Hence, the offence under Section 323 of Indian Penal Code is not found to be proved against the appellant Bhanwar Lal and the finding of conviction of the trial Court in this regard cannot be sustained and deserves to be set aside.17. The testimony of Bajrang Lal to this effect does not stand corroborated by any other independent evidence. Hence, the offence under Section 323 of Indian Penal Code is not found to be proved against the appellant Bhanwar Lal and the finding of conviction of the trial Court in this regard cannot be sustained and deserves to be set aside.17. For these reasons, we dispose of the instant appeal in the following terms:- (i) We partly allow the appeal of Prem Shanker and instead of Section 302 we convict him under Section 304 Part 1I Indian Penal Code. Looking to the fact that Prem Shanker has already undergone confinement for a period of more than five years; the ends of justice would be met in sentencing him to the period already undergone by him in confinement. The appellant Prem Shanker, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (ii) We partly allow the appeal of Hemant and while maintaining his conviction under Section 324 Indian Penal Code, we sentence him to the period already undergone by him in confinement. Appellant Hemant is on bail, he need not surrender and his bail bonds stand discharged. (iii) We allow the appeal of Bhanwar Lal and acquit him of the charge under Section 323 Indian Penal Code. Bhanwar Lal is on bail, he need not surrender and his bail bonds stand discharged. (iv) The impugned judgment of learned trial court stands modified as indicated above. Appeal disposed of. *******