JUDGMENT 1. - In 1920 Justice Holmes announced what became known as the ''Fruit of the poisonous tree" doctrine that barred evidence, which could be traced to an illegal source. This doctrine has come up to our mind in the wake of the salient features of the instant case where altercations started over cattle trespass resulted in death of one Madia. The Investigating Officer, however changed the place of incident, and over implicated as many as eleven persons, who were put to trial before Sessions Judge Bundi for having committed murder of Madia. Learned Judge while acquitting three, convicted and sentenced eight appellants as under : Dev Lal s/o Nanada, Jagdish, Bhojya, Satya Narayan, Indra, Ram Nath, Dalu @ Dev Lal s/o Bhagota and Sobhag : U/s.302/149 PC : Each to suffer imprisonment for life and fine of Rs.5000/-, in default to further suffer simple imprisonment for six months. U/s.148 IPC Each to suffer simple imprisonment for six months. U/s.323/149 PC : Each to suffer simple imprisonment for three months. U/s. 325/149 IPC : Each to suffer simple imprisonment for six months and fine of Rs.1000/-, in default to further suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently. 2. It is the prosecution case that on August 17, 1997 around 11.00 AM injured Bheru Lal (Pw.1) along with Shyoji Lal and Jagannath Bairwa reached at Police Station Nainwa and lodged the report with the averments that on the said day around 9.30 AM when Madiya, Bhawana, Satya Narayan, Sanvla, Phoondi Lal, Goru, Mishri Bai and Lodkya were watering the crop they were called by Bhojya. The informant along with other members of complainant party rushed towards Bhutya Bardi where they were surrounded by the appellants. Appellant Sobhag, armed with lathi, exhorted others to kill members of complainant party, thereupon Bhoju, Ram Chandra, Jagdish, Satya Narayan, Dev Lal, Ram Nath, Indra, Dalu @ Dev Lal, Dhanna and Mahaveer armed with lathis came over there. Sobhag inflicted blow with Madal of axe on the head of Madiya, as a result of which Madiya fell down and died on the spot. The members of complainant party including informant, Bhawana, Satya Narayan, Phoondi Lal, Goru, Lodkya and Sanvla were also beaten up. On that report case under sections 147, 148, 302, 307, 323 and 324/149 IPC and Section 3 SC/ST (PA) Act was registered and investigation commenced. The members of complainant party including informant, Bhawana, Satya Narayan, Phoondi Lal, Goru, Lodkya and Sanvla were also beaten up. On that report case under sections 147, 148, 302, 307, 323 and 324/149 IPC and Section 3 SC/ST (PA) Act was registered and investigation commenced. Necessary memos were drawn and after completion of investigation charge sheet was filed. In due course the case came up for trial before the court of learned Sessions Judge Bundi. Charges under sections 148, 302/149, 307/149, 323/149 IPC and Section 3 SC/ST (PA) Act were framed. The appellants denied the charges and claimed trial. The prosecution in support of its case examined as many as 17 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. Two witnesses in support of defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. Having heard rival submissions, we notice that death of Madiya was undeniably homicidal in nature. As per post mortem report (Ex.P-57) following ante mortem injuries were found on the dead body : 1. Hematoma 4" x 4'' left side of forehead. On dissection depressed fracture 2'' x 2'' present at left side of frontal bone of skull. Membranes of brain lacerated. Brain tissue contused. 2. Bruise with swelling 11/2" x 11/2" at left eye brow. The cause of death according to Autopsy Surgeon was injury to brain tissue. 4. The prosecution case is founded on the testimony of injured eye witnesses viz. Bheru Lal (Pw.1), Goru (Pw.2), Sanvla (Pw.3), Phoondi Lal (Pw.4), Mishri Bai (Pw.6), Satya Narain (Pw.7) and Bhawana (Pw.8). All these witnesses deposed that appellants surrounded them and Sobhag inflicted a blow with blunt side of axe on the head of Madiya as a result of which he fell down and died. Conjoint look at the evidence of these witnesses reveals that incident occurred all of a sudden and without any premeditation and during the incident they had sustained injuries. They however did not explain the injuries received by the members of accused party. 5. At this juncture it will be appropriate to consider the injuries received by 1 accused party during the incident. Appellant Sobhag vide injury report (Ex.D-7) sustained following injuries : 1. Abrasion 1/2" x 1/2" at middle of Rt. arm. 2. Abrasion 1/2 x 1/2 at lower ⅓ of Rt. leg. 5. At this juncture it will be appropriate to consider the injuries received by 1 accused party during the incident. Appellant Sobhag vide injury report (Ex.D-7) sustained following injuries : 1. Abrasion 1/2" x 1/2" at middle of Rt. arm. 2. Abrasion 1/2 x 1/2 at lower ⅓ of Rt. leg. Appellant Bhoju vide injury report (Ex.D-8) received following injuries:- 1. Abrasion 11/4" x 1/2 at clavicular region. 2. Abrasion 1'' x 1/4" at left parietal region. Appellant Ram Nath vide injury report (Ex.D-9) sustained following injuries 1. Abrasion 1/2'' x 1/2'' at lateral aspect of Rt. shoulder joint. 2. Bruise 2'' x 1'' at Rt.elbow joint. 2 6. A perusal of testimony of Ram Prakash (Pw.12) demonstrates that the incident occurred suddenly over the issue of cattle trespass. He deposed thus : " >xM+s ds oDr tkuoj [ksr esa ?kql x;s Fks bl dkj.k ;g >xM+k gqvk FkkA ;s tkuoj lksHkkx oxSjk ds Fks tks fd efM;k dh eDdk esa ?kql x;s Fks] mudks fudkyrs oDr >xM+k gks x;k FkkA ;g >xM+k eDdk okys [ksr esa gqvk FkkA blds ckn cjM+h ij vk;s FksA " 7. In the site plan (Ex.P-2) however the place of incident was shown by mark X. Details given in site plan (Ex.P-2) are as under " ,& LFkku ij tehu dk f{kfrt ls mWapk mBk gqvk tehu dk VqdM+k gS ftl ij cjlkr dk ekSle gksus ls NksVh&NksVh ?kkl mxh gqbZ gSA blh mWaps mBs gq, /kjkry dks Hkw&Hk`R;k cjM+h ds uke ls iqdkjrs gSaA ;g /kjkry dadjhV o iFkjhyh feV~Vh ls cuk gqvk gSA /kjkry ij vjusVk ds isM+ mxs gq, gSaA ;g /kjkry djhc 200&300 ehVj ds ?ksjs esa Qsyk gqvk gSA 'X' Lfkku eqdnek gktk dk ?kVuk Lfky gS ftlds ikl gh e`rd eM;k iq= jkek cSjok dh yk'k dks iM+k gksuk Qfj;knh us crk;k gSA " 8. Satyendra Singh 10 (Pw.14), who investigated the case, drew site plan , (Ex.P-2). Evidently according to Ram Prakash (Pw.12) the incident occurred in the corn field and not at place 'X' as shown in the site plan. 9. Fact situation of the case may be. summarised thus : (i) Free fight ensued all of a sudden when cattle of accused party entered the field of deceased. (ii) Injury on the head of deceased has been attributed to appellant Sobhag. (iii) The injuries sustained by the appellants have not been explained by prosecution witnesses. 9. Fact situation of the case may be. summarised thus : (i) Free fight ensued all of a sudden when cattle of accused party entered the field of deceased. (ii) Injury on the head of deceased has been attributed to appellant Sobhag. (iii) The injuries sustained by the appellants have not been explained by prosecution witnesses. (iv) The 10 did not conduct investigation fairly. 10. In the facts and circumstances of the case it would.be worth while to consider the principles governing constructive liability under section 149 IPC. This section requires the consensus of five persons to. do an unlawful act prohibited by section 141, in addition to which, in order to create a liability under this section, there must be proof that the accused knew that the offence committed by one member of the assembly was likely to be committed by any of them. Section 149 does not create new offence but deals with vicarious liability of the members of unlawful assembly. In Munir Khan v. State of U.P., AIR 1971 SC 355 it was held that where there is a mutual fight between the parties, the court will not be justified in convicting any of the accused by having recourse to section 149. In a mutual fight there is no common object. 11. It is well settled that where there is a spontaneous fight between the parties, the question of constructive liability under section 149 IPC does not arise and each individual is responsible for the injuries caused by him. 12. Bearing these parameters in mind when we proceed to consider the facts of the instant case we find that the incident occurred when the cattle of accused party entered into the field of deceased. Altercations started over cattle trespass and free fight ensued. In the course of free fight Sobhag inflicted single blow with blunt side of axe on the head of Madia as a result of which he died. Since there was mutual fight between the parties, it will not be justified in convicting any of the appellants by having recourse of section 149 IPC and only appellant Sobhag is responsible for the injury caused by him. Since Sobhag did not act in a cruel or unusual manner, the offence committed by him, falls not under section 302 but under section 304 Part II IPC, since explanation 4 to Section 300 IPC got attracted. 13. Since Sobhag did not act in a cruel or unusual manner, the offence committed by him, falls not under section 302 but under section 304 Part II IPC, since explanation 4 to Section 300 IPC got attracted. 13. For these reasons, we dispose of instant appeals in the following terms:- (i) We partly allow the appeal of Sobhag and instead of Section 302, we convict him under Section 304 Part II IPC and sentence him to suffer rigorous imprisonment for five years and fine of Rs.2000/-, in default to further suffer six months rigorous imprisonment. We however acquit Sobhag of the charges under sections 148, 323/149 and 325/149 IPC. (ii) We allow the appeals of Dev Lal s/o Nanda, Jagdish, Bhojya, Satya Narayan, Indra, Ram Nath and Dalu @ Dev Lal and acquit them of the charges under sections 148, 323/149, 325/149 and 302/149 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 of S partly allowed - Appeal of others allowed in full. *******