Honble SINGH, J.–In this appeal, appellants have challenged the judgment dated 15.10.2004 of the learned Additional Sessions Judge (Fast Track), Chhabra, District Baran, whereby each of appellants Balkishan, Mograj @ Yograj, Prahlad and Mangu @ Mangilal were convicted and sentenced as under:- Appellant Balkishan u/S. 302 IPC: Imprisonment for life and fine of Rs. 1,000/- in default to further suffer two months simple imprisonment; u/S. 323/34 IPC: to suffer rigorous imprisonment for 6 months. u/S. 324/34 IPC: to suffer rigorous imprisonment for 9 months. u/S. 341 IPC: to suffer 15 days simple imprisonment. u/S. 379 IPC: to suffer rigorous imprisonment for one year. Appellants Mograj @ Yograj, Prahlad and Mangu alias Mangilal u/S. 302/34 IPC: to suffer imprisonment for life and fine of Rs. 1000/-, each, in default each of them to further suffer rigorous imprisonment for two months. u/S. 323/34 IPC: Each of them to suffer rigorous imprisonment for 6 months. u/S. 324/34 IPC: Each of them to suffer rigorous imprisonment for 9 months. u/S. 341 IPC, accused Moghraj and u/S. 341/34 IPC accused Prahlad and Mangu alias Mangilal, to suffer simple imprisonment for 15 days each. All the sentences were ordered to run concurrently. (2). Briefly stated, the prosecution case is that on 1.2.2001 at 9.20 p.m. at Government Hospital Chhabra, `Parcha Bayan of the injured Ranglal, resident of Govindpuri was recorded by Sub- Inspector Tej Singh, Police Station Chhabra. (3). According to `Parcha Bayan, the land belonging to the informant was situated to adjoining land of his uncle Prem Narain. On the aforesaid day at 2 p.m. there was an altercation between the informant and Balkishan regarding cutting of water- pipe by Bal Kishan, who had inflicted a sickle blow at his back. Then the informant went to his house and reported the matter to his brother Gopi Lal and then informant along with his brother Ramesh, Gopi Lal, Ram Prasad and Morpal went to the field to conciliate the matter. On arriving near their field, Bal Kishan and his brother Mangu, Prahlad and Mograj came armed and started beating. Bal Kishan inflicted `gandashi blow on his cheek near the left eye, Prahlad inflicted `gandasi-stick blow on left leg, Mangu inflicted dhariya blow on left elbow and Mograj inflicted lathi blow on left elbow and when the informant fell down, Moghraj inflicted 3-4 blows. Bal Kishan inflicted `gandashi blow on his cheek near the left eye, Prahlad inflicted `gandasi-stick blow on left leg, Mangu inflicted dhariya blow on left elbow and Mograj inflicted lathi blow on left elbow and when the informant fell down, Moghraj inflicted 3-4 blows. When his brother Kalyan came to save him, Bal Kishan inflicted a `gandasi blow on head with the intention to kill him causing him to fall down. Then Moghraj inflicted lathi blows on his back. When other brothers of the informant namely, Ram Prasad, Ramesh, Gopi Lal, Morpal, tried to save themselves, they were also inflicted injuries by them. Mother of the informant Ramnathi Bai also sustained lathi blow inflicted by Moghraj. Then, the accused persons ran away towards their well and Kalyan, who had sustained a serious head injury was taken to hospital at Chhabra where he was declared dead. (4). On the above report a case under Sections 302, 307, 341, 323, 379/34 IPC was registered at 10 p.m. on 1.12.01 and the investigation commenced. During the investigation, site map and other memos were prepared, autopsy on the dead body of Kalyan was got conducted and after investigation, charge sheet against the accused persons was filed. On the case being committed, the accused Balkishan was charged for the offence under Sections 302, 307, 323, 341, 201, 379 IPC, accused Prahlad and Mangu alias Mangi Lal under Sections 302/34, 307, 323/34, 341/34 IPC and accused Mograj alias Yograj for the offence under Sections 302, 307, 323, 341, 201 IPC. They pleaded not guilty and claimed to be tried. The prosecution examined as many as 22 witnesses and then the statements of the accused under Sections 313 Cr.P.C. were recorded. In their explanation, the accused stated that they were falsely implicated and they did not inflict injuries as alleged. In defence, accused produced themselves as D.W. 1 Bal Kishan, D.W. 2 Mograj and D.W. 3 Prahlad u/S. 315 Cr.P.C. On hearing rival submissions, learned trial Judge convicted the appellants for the offences indicated herein above. (5). We have heard learned counsel for the appellants, learned Public Prosecutor for the State and with their assistance scanned the material on record. (6). Death of Kalyan was undeniably homicidal in nature. (7). As per post mortem report (Ex. (5). We have heard learned counsel for the appellants, learned Public Prosecutor for the State and with their assistance scanned the material on record. (6). Death of Kalyan was undeniably homicidal in nature. (7). As per post mortem report (Ex. P. 13) the following ante mortem injuries were found on the body:- "(1) Incised wound 10 cm x 2 cm x 3 cm parieto occipital region of skull centrally placed anterior posteriorly. (2) Abrasion 3 cm x 2 cm right upper forearm posteriorly. (3) Abrasion 2 cm x 1 cm right side of forehead above eyelid. (4) Abrasion 10 cm x 2 cm right scapular and infra scapular region posterior." In the opinion of doctor, the cause of death was coma as a result of head injury. (8). Ramesh (PW. 7) vide injury report (Ex. P. 17) received following injuries:- (1) Pain with swelling 4 cm x 4 cm rt. shoulder region. (9). Ram Nathi (PW. 11) vide injury report (Ex. P. 18) received following injuries:- (1) Bruise 6 cm x 2 cm rt. Shoulder region; (2) Bruise 4 cm x 2 cm inter scapular region. (10). Ram Prasad (PW. 8) vide injury report (Ex. P. 19) received following injuries:- (1) Incised wound 3.5 cm x 1 cm x 1/4 cm Left side of vanished jt. Scalp and head; (2) Pain with swelling 4 cm x 4 cm rt. ankle joint; (3) Pain with swelling 4 cm x 4 cm rt. Knee joint. (11). Rang Lal (P.W. 3) vide injury report (Ex. P. 20) received following injuries:- (1) Pain with swelling 4 cm x 4 cm (L.) maxillary region. (2) Abrasion 2 cm x 2 cm (L)) maxillary region. (3) Abrasion 1 cm x 1 cm (L) wrist joint (blunt) (4) Pain with swelling 4 cm x 4 cm (L) elbow joint (5) Abrasion 3 cm x 2cm posteriorly fracture; (6) Bruise 6 cm x 2 cm (L) scapular region; (7) Bruise 6 cm x 2 cm Inter scapular region; (8) Bruise 4 cm x 2 cm (Rt.) Scapular region. (12). Gopi Lal (PW. 6) vide Injury Report (Ex. (12). Gopi Lal (PW. 6) vide Injury Report (Ex. P. 21) received following injuries:- (1) Pain with swelling 4 cm x 4 cm (L) Temporal region J. Fracture; (2) Abrasion 2 cm x 2 cm (Rt.) wrist joint (exterior); (3) Painful swelling 4 cm x 4 cm (L) wrist Joint; (4) Abrasion 2 cm x 2 cm left hand dorsal; (13). At this juncture injuries sustained by the accused party in the same incident may also be noticed. Appellant Mograj s/o Prem Narain vide Injury Report (Ex. D. 3) received following injuries:- (1) Incised wound 3 cm x 1 cm x 1/4 cm (Rt.) side of vanished L. Scalp & Head; (2) Painful swelling 6 cm x 4 cm (L) Elbow Joint (3) Painful swelling 6 cm x 6 cm (Rt.) Elbow Joint (4) Abrasion 1 cm x 1 cm Lumber region in back (5) Painful swelling 4 cm x 4 cm (L.) Wrist Joint. (6) Painful swelling 4 cm x 2 cm (Rt.) forearm (7) Painful Swelling 4 cm x 2 cm (Rt.) Wrist with Hand. (8) Bruise 4 cm x 2 cm (L) Shoulder region. (14). Appellant Bal Kishan vide Injury Report (Ex. D. 6) received following injuries:- (1) Incised wound 4 cm x 1 cm x 1/4 cm vault of scalp and head; (2) Bruise 4 cm x 2 cm (L) shoulder region; (3) Bruise 4 cm x 2 cm (Rt.) shoulder region; (4) Abrasion 3 cm x 1 cm (Rt.) hand dorsal aspect of joint of fingers; (5) Abrasion 4 cm x 2 cm (L) arm outer aspect; (6) Abrasion 2 cm x 2 cm (L) leg middle 1/3rd of ankle joint; (7) Bruise 4 cm x 2 cm Inter scapular region. (15). Accused Prahlad vide Injury Report (Ex. D. 7) received following injuries:- (1) Incised wound 6 cm x 1 cm x 1/4 cm (Rt.) Parietal region of scalp and head; (2) Bruise 6 cm x 2 cm Inter scapular region; (3) Painful swelling 4 cm x 2 cm (Rt.) Forearm Dislocation 1/3 rd; (4) Painful swelling 4 cm x 2 cm (Rt.) leg middle 1/3 rd; (5) Bruise 4 cm x 2 cm (Rt.) Scapular region; (6) Bruise 4 cm x 2 cm (L) Scapular region; (16). The genesis of the prosecution case as revealed is that the appellants and the complainant party belong to one family as they are sons of two brothers and their fields are adjoining. The cause cause behind the incident is that a water pipe of 200 feet length being used for irrigation by the complainant party was cut into half by the appellant Bal Kishan allegedly on the ground that the pipe was purchased jointly. This was objected by Rang Lal (PW. 3) and his wife Mst. Savitri Devi and Bal Kishan started abusing and also inflicted a sickle blow at his back. Rang Lal (PW. 3) came to his house from the field at a distance of about a mile and informed his brother. The occurrence took place at about 4.30 p.m. on the same day when Rang Lal (PW. 3) and his brothers Ramesh (PW. 7), Gopi Lal (PW. 6), Ram Prasad (PW. 8) went to the field to conciliate the matter and when Kalyan (deceased) came to save his brothers from the nearby fields, he was inflicted a gandasi blow on head by Bal Kishan, causing him to fall down and was declared dead on being taken to hospital at Chhabra. In the incident Ramesh (PW. 7), Ram Prasad (PW. 8), Rang Lal (PW. 3), Gopi Lal (PW. 6) and Smt. Ram Nathi (PW. 11) also sustained injuries as indicated herein above. The incident of mutual fight is not denied by the appellants but they have come with their version that a report Exp. 8 of the incident was also made by the appellant Rang Lal at the Police Station and the accused appellants Mograj, Bal Kishan and Prahlad also sustained injuries vide injury reports Ex. D. 3 to Ex. D. 6 and Ex. D. 7 as already noticed herein above. The accused appellants have also come up with a specific defence that it was the complainant party who came armed and assaulted them and that the fatal injury to the deceased Kalyan was not caused by the accused appellant Bal Kishan as alleged but the same was caused with `gandashi used by Rang Lal (PW. 3). The defence has been introduced by the appellants in the cross-examination of Rang Lal (PW. 3). The defence has been introduced by the appellants in the cross-examination of Rang Lal (PW. 3) and other injured eye-witnesses as well as in statements of D.W. 1 Bal Kishan, D.W. 2 Mograj and D.W. 3 Prahlad recorded under Section 315 Cr.P.C. (17). In view of the manner the incident occurred, it is revealed that the two parties belong to the same family, their fields are adjoining. The cause of inception of the occurrence is trifle as the accused appellants had cut the pipe used for taking water for irrigation on the assumption that the pipe was purchased jointly. The complainant party in fact went to the field from their houses with the intention to conciliate the matter but the mutual fight took place in the manner alleged by rival versions. Thus, the participation of the appellants in the incident can not be said to be in concerted manner, so as to infer the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention so as to involve the aid of Section 34 IPC so that the liability for the crime may be imposed on any of the person in the same manner as if the act were not done by him alone. (18). On examining the matter for fixing the criminal liability for individual acts in the free fight, it is revealed that all the injured eye-witnesses, namely, Rang Lal (PW. 3), Ramesh (PW. 7), Ram Prasad (PW. 8), Gopi Lal (PW. 6) and Smt. Ram Nathi Bai (PW. 11) have deposed that the fatal blow with gandasi on the head of deceased Kalyan was inflicted by appellant Bal Kishan. This has been further corroborated by the testimony of PW. 9 Bhag Chand and PW. 13 Kalu, who are not the members of the complainant party. The fact that the fatal blow was inflicted by the appellant Bal Kishan is also corroborated from the F.I.R. Ex. P. 1 which was recorded on the basis of `Parcha Bayan of injured Rang Lal in the hospital on the same day of the incident at 9.30 p.m. The defence taken in the cross-examination of Rang Lal (PW. 3) and other injured witnesses that the fatal blow was caused by the `gandasi in the hands of Rang Lal (PW. P. 1 which was recorded on the basis of `Parcha Bayan of injured Rang Lal in the hospital on the same day of the incident at 9.30 p.m. The defence taken in the cross-examination of Rang Lal (PW. 3) and other injured witnesses that the fatal blow was caused by the `gandasi in the hands of Rang Lal (PW. 3) in the mutual fight, has been denied by all the injured eye-witnesses as well as Bhag Chand (PW. 9) and Kalu (PW. 13), who are also eye- witnesses to the occurrence. In the statements under Section 315 Cr.P.C. the appellants Bal Kishan (D.W. 1), Mograj (D.W. 2) and Prahlad (D.W. 3) have though tried to establish that fatal blow in fact, was caused by (P.W. 3) Rang Lal in the fight but this version does not find mention in the police report (Ex. D. 8 lodged by Bal Kishan himself though on the next day of the occurrence at 12.55 p.m. Thus, we find that the prosecution has proved beyond doubt that the fatal blow to deceased was caused by Bal Kishan. However, the manner the incident occurred and Kalyan deceased came to save his brothers in the on going mutual fight and the fact that Bal Kishan inflicted blow not from the sharp side of gandashi and also did not repeat the blow, we find that the appellant Bal Kishan did not premeditate, or acted in any cruel manner or took undue advantage of his position and as such only knowledge can be attributed and thus his act travels only to the extent of culpable homicide not amouting to murder punishable under Section 304 Part II of the Indian Penal Code. (19). Magnitude of the mutual fight between the two rival groups can be assessed from the fact that apart from the deceased Kalyan, five injured witnesses sustained 17 injuries of the nature of abrasions, bruises and swelling with pain including one incised wound on the head of Rang Lal (PW. 3). As against this each of the appellants Mograj, Bal Kishan and Prahlad sustained 8, 7 and 6 injuries respectively, in all 21 injuries of the nature of abrasions, bruises and swelling with pain including one incised wound each to Mograj and Prahlad on their head. 3). As against this each of the appellants Mograj, Bal Kishan and Prahlad sustained 8, 7 and 6 injuries respectively, in all 21 injuries of the nature of abrasions, bruises and swelling with pain including one incised wound each to Mograj and Prahlad on their head. The injuries sustained on the person of the appellants in the incident have also not been explained in the evidence adduced by the prosecution. Thus in the fact situation as emerged, the testimony of injured eye witnesses is not found consistent qua appellant Mograj alias Yograj, Prahlad and Mangu alias Mangi Lal on the point of their individual act played in a mutual fight like the present and hence their conviction for the offences under Sections 323/34, 324/34 302/34, 341/34 can not sustained. Likewise, the conviction of the appellant Bal Kishan is also not sustainable for the offence under Sections 323/34, 324/34 and 341 IPC. As there has been a bona fide dispute regarding the entitlement of joint use of the pipe used for taking water for irrigation, conviction of appellant Bal Kishan for the offence under Section 379 IPC is also not sustainable. (20). Accordingly, as discussed herein above, we find that instead of Section 302 IPC, the prosecution has been successful to bring home the guilt for the offence under Section 304 Part II IPC beyond doubt as against appellant Bal Kishan while it has failed to prove rest of the offences against all the appellants. (21). For these reasons, we dispose of the instant appeal in the following terms:- (i) We partly allow the appeal of appellant Bal Kishan and instead of Section 302 we convict him under Section 304 Part II IPC and looking to the fact that the appellant has already undergone confinement for a period of more than six years, 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 323/34, 324/34, 341 and 379 IPC. The appellant Bal Kishan, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (ii) We allow the appeal of appellants Mograj @ Yograj, Prahlad and Mangu @ Mangi Lal and acquit them of the charges under Sections 302/34, 323/34, 324/34, 341 and 341/34 IPC. The appellant Bal Kishan, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (ii) We allow the appeal of appellants Mograj @ Yograj, Prahlad and Mangu @ Mangi Lal and acquit them of the charges under Sections 302/34, 323/34, 324/34, 341 and 341/34 IPC. These appellants are on bail, they need not surrender and their bail bonds stand cancelled. (iii) The impugned judgment of learned trial court stands modified as indicated above.