JUDGMENT S.K. SHARMA & AKHILESH CHANDRA, JJ.:-Criminal Appeal (DB) 203/1988 filed on behalf of Surendra Rai, Janardan Rai, Vishwanath Rai, Jokhan Rai, Shishu Rai, Jagdeo Rai, Jai Kant Rai, Bhisham Rai, Kishore Rai and Suraj Rai, and Criminal Appeal (DB) 220/1988 filed on behalf of Bhola Rai and Bilat Rai, have been heard together and are being disposed of by this common judgment because both the appeals have arisen out of one judgment of conviction and sentence passed by learned 1st Additional Sessions Judge, Vaishali at Hajipur on 8th April 1986 in Sessions Trial No. 166 of 1986 relating to G.R. No. 555 of 1986 whereby and whereunder appellants Bhola Rai and Bilat Rai (Cr. App. No. 220/1988) were found guilty under Section 302 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life whereas appellant Jai Kant Rai was found guilty under section 324 and 148 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for two years and one year respectively. Appellant Jokhan Rai was found guilty under sections 323 and 147 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year each in both counts. Appellant Bhisham Rai was found guilty under section 147 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year The rest all the appellants were found guilty under Section 148 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for two years each. 2. For arriving at the conclusion it is appropriate to begin with the fardbeyan (Ext. 1/1). According to fardbeyan, the occurrence has taken place on 14.03.1986 at 5 P.M. At that time the informant Nagdeo Rai was coming from his field along with Rajballam Rai (since deceased) and Baidyanath Rai (since deceased) and were passing through the road in front of the house of Maheshwar Rai (not examined). At that very time, they saw Bhisham Rai, Bhola Rai and Suraj Rai sitting at his Darwaja. Seeing them Bhisham Rai exclaimed that enemy arrived and so they should be assaulted. Upon this exhortation Bhola Rai and Suraj Rai armed with Bhala and Farsa respectively and Bhisham Rai empty handed proceeded towards them. At that very time, they saw Bhisham Rai, Bhola Rai and Suraj Rai sitting at his Darwaja. Seeing them Bhisham Rai exclaimed that enemy arrived and so they should be assaulted. Upon this exhortation Bhola Rai and Suraj Rai armed with Bhala and Farsa respectively and Bhisham Rai empty handed proceeded towards them. In the meanwhile, other accused persons who were named in the First Information Report namely, Surendra Rai, Janardan Rai, Vishwanath Rai, Jokhan Rai, Shishu Rai, Jagdeo Rai, Jaikant Rai, Bhisham Rai and Kishore Rai also arrived. They were variously armed at the time of their arrival. Suraj Rai was having Farsa. He hurled it to deceased Baidyanath Rai and when he tried to ward off the blow, he sustained injury on the left hand but in that effort he received cut injury on his hand and fell down. Thereafter Bhola Rai gave Bhala blow at his neck. At the same time, Surendra Rai hurled Farsa blow to Rajballam Rai on his right leg, as a result, he fell down. Accused Bilat Rai aimed a Bhala blow on his chest which resulted in loosing his consciousness. The informant P.W. 1 Nagdeo Rai was assaulted with Lathi by accused Jokhan Rai and when Jappan Rai came to intervene, he was also assaulted by accused Jaikant Rai with Bhala, at his left shoulder. Thereafter P.W.2 Nagendra Rai, P.W.6 Bindeshwar Rai. P.W. 3 Nityanand Rai and P.W. 5 Pramod Rai and others came there and witnessed the occurrence. Thereafter the accused persons escaped. The injured were brought to Jandaha State Dispensary but two of the injured named Baidyanath Rai and Rajballam Rai succumbed to their injuries. Injured Jappan Rai was admitted in unconscious state. The motive of the occurrence was previous enmity and litigation wit, the accused persons. The fardbeyan resulted in Mahnar P.S. Case No. 35 of 1986 dated 14.03.1986 for the offences under Sections 147, 148, 149, 307, 324 and 302 of the Indian Penal Code against 12 persons namely, Surendra Rai, Janardan Rai, Vishwanath Rai, Jokhan Rai, Shishu Rai, Jagdeo Rai, Jaikant Rai, Bhisham Rai, Kishore Rai, Suraj Rai, Bhola Rai and Bilat Rai. The fardbeyan resulted in Mahnar P.S. Case No. 35 of 1986 dated 14.03.1986 for the offences under Sections 147, 148, 149, 307, 324 and 302 of the Indian Penal Code against 12 persons namely, Surendra Rai, Janardan Rai, Vishwanath Rai, Jokhan Rai, Shishu Rai, Jagdeo Rai, Jaikant Rai, Bhisham Rai, Kishore Rai, Suraj Rai, Bhola Rai and Bilat Rai. The case was investigated into and police after completion of investigation submitted charge sheet under sections 147, 148, 149, 323, 324, 325, 326, 342, 307and 302 of the Indian Penal Code against the appellants and one non-F.I.R. accused Chintaman Rai was also charge sheeted along with the appellants. Thereafter cognizance was taken and case was committed to the court of sessions where charges were framed and explained to the accused persons. Accused Bhola Rai and Bilat Rai were charged under section 302 of the Indian Penal Code whereas Jaikant Rai was charged under section 148 and 324 of the Indian Penal Code, Jokhan Rai was charged under sections 323 and 147 of the Indian Penal Code and rest of the accused persons were charged under section 302/149 of the Indian Penal Code. All the accused persons pleaded not guilty, so the trial proceeded. 3. The defence of the appellants was that there was a quarrel between Raghubir Rai son of Bhola Rai (accused) and Ravindra Rai son of Baidyanath Rai (Deceased) in the school. After the school was over, Raghubir Rai while returning to his house was narrating the school incident at the Darwaja of Maheshwar Rai. In the meanwhile, Nagdeo Rai (informant) P.W.1 of the present case, P. W.4 Ram Jappan Rai, Baidyanath Rai, Raj Ballam Rai (since deceased) came variously armed and caught hold of Raghubir Rai and started assaulting him. When Kamal Kanti Devi (D.W.7) and Chandra Jeet Rai (D.W.4) wife and son of Maheshwar Rai protested, they were also not spared. In the meanwhile, Bhola Rai and Bilat Rai came there and they also vehemently protested. P.W.4 jappan Rai hurled lathi on the neck of Bilat Rai and they also assaulted Bhola Rai on which number of villagers gathered and the aforesaid persons indulged in scuffle with the villagers as a result of which villagers drove them away from the Darwaja of Maheshwar Rai by hurling brick bats, this caused injuries to the accused persons as well as to the prosecution party. However, defence of the appellants was that no occurrence as alleged has taken place. Accused Bhisham Rai was in the village at the relevant time. Injured Bhola Rai and Bilat Rai who had received injuries at the hands of the prosecution party were rushed to Mahnar State Dispensary for treatment where on the basis of the statement of Bilat Rai, Mahnar P.S. Case no. 34 of 1986 for the offence under section 323, 324, 307/34 of the Indian Penal Code was registered and subsequently appellants Bhola Rai and Bilat Rai were arrested in the hospital itself. 4. The trial court after considering the prosecution version of the occurrence as well as defence version arrived at the conclusion that the prosecution was able to prove the charges against these appellants but the trial court disbelieved the accusation against accused Chintaman Rai, so he was acquitted. 5. This court has to see as to whether the prosecution has been able to prove the charge against all the appellants. 6. In order to prove the charges, prosecution has examined 12 witnesses. They are: Nagdeo Rai (P.W.1), Nagendra Rai (P.W.2), Nitya Nand Rai (P.W. 3), Ram Japan Rai (P.W.4), Pramod Rai (P.W.5), Bindeshwar Rai (P.W.6), Harichandra Rai (P.W. 7), Baleshwar Pd. Rai (P.W. 8), Ram Naresh Rai (P.W.9), Dr. Shiv Nath Rai (P.W.10), Basistha Nr.Singh (P.W.11) and Udai Shankar Bhagat (P.W.12). 7. The defence has also examined nine witnesses they are, Dr. Bishwanath Pd. Sinha (D.W.1), Bhisham Rai (D.W.2), Punishwar Pd. Singh (D.W.3), Chandrajeet Rai (D.W.4), Ram Gopal Bumker (D.WS), Binay Kumar Srivastava (D.W.6), Kamal Kanti Devi (D.W.7), Raghubir Rai (D.W.8) and Baban Pd. Sinha (D.W.9). 8. P.Ws. 1, 2, 3, 4 and 6 are the witnesses on the point of occurrence. P.W.5 was tendered for cross examination. P.Ws.7, 8 and 9 are formal witnesses. P.W. 10 Dr. Shiv Nath Prasad who conducted autopsy on the dead bodies of two deceased namely, Baidyanath Rai and Raj Ballam Rai. P. W. 11 Dr. U.S. Bhagat was a doctor of Jandaha State Dispensary who had occasioned to examine the injured Nagdeo Rai (P.W.1), and Jappan Rai (P.W4). P.W.12 Basisth Narayan Singh is the Investigating Officer of this case. 9. On behalf of the defence Dr. Bishwanath Prasad Singh (D.W.1) has examined Bhola Rai and Bilat Rai on 14.03.1986 in Mahnar State Dispensary. U.S. Bhagat was a doctor of Jandaha State Dispensary who had occasioned to examine the injured Nagdeo Rai (P.W.1), and Jappan Rai (P.W4). P.W.12 Basisth Narayan Singh is the Investigating Officer of this case. 9. On behalf of the defence Dr. Bishwanath Prasad Singh (D.W.1) has examined Bhola Rai and Bilat Rai on 14.03.1986 in Mahnar State Dispensary. D.W.2 Bhisham Rai is an accused of the present case and he has examined himself as a witness in support of the fact that on the date and time of the occurrence he was in Mahnar with Sri Muneshwar Prasad Singh, the Ex-Minister. He also testified the fact that all the P.Ws. on the point of occurrence, namely, P.Ws. 1, 2, 3, 4 and 6 belong to one and the same family. D.W. 3 is Sri Muneshwar Prasad Singh, the Ex-Minister and he has testified that the accused Bhisham Rai was with him on the date and at the time of occurrence. D.WA Chandrajeet Rai son of Maheshwar Rai at whose Darwaja the occurrence took place has proved and testified about the quarrel between Raghubir Rai and Ravindra Rai in tile school premises and he has also proved the defence version about the occurrence. D.W. 5. is one of the doctor of the Medical Board constituted in view of the orders of the court. The Medical Board was directed to give opinion about the nature of injuries on the person of Bilat Rai, one of the appellants, because report of Mahnar Doctor was suspected. D.W.6 is a formal witness who has proved the formal First Information Report and fardbeyan of Bilat Rai which was recorded by Mahnar Police Station (Ext. D). D.W.7 and D.W.8 have proved the defence case. D.W.9 who is a formal witness has proved bail petition and Vakalatnama filed and executed by P.W.1 and P.Wo4 in connection with the counter case. These documents have been exhibited to prove the counter version and assertion of the witnesses that they were not accused in any case and so on this basis it has been argued that since beginning these witnesses were telling lie before the court and telling that they were not accused in any case from before, whereas the fact is that they were charged accused and have executed bail bonds in a case. 10. 10. P.W.1 informant has deposed that on Friday at 5 P.M. when he was returning and was crossing by the side of the house of Maheshwar Rai (not examined), then suddenly the accused persons variously armed came and started indiscriminately assaulting. He has described the manner of assault saying that the accused persons started assaulting. In course of commission of assault by the accused persons two persons received severe injuries. They were taken to hospital. They succumbed to their injuries. This witness has further stated that on the date of occurrence there was a quarrel between the children of Bhola Rai and Baidyanath Rai in the school at about 12.45 in the noon. He has categorized the accused persons in two categories. Appellant Bhola Rai and Bilat Rai in one category in which they were attributed the role of causing fatal injuries to the two of the deceased, though others have also been given various role of general type and he has stated that Chintaman Rai and others exhorted Bhola Rai. Informant has been supported by P.W.2, P.W.3, injured P.W.4 and P.W.6. Though P.W.4 was an injured and he was treated by the doctor but he is in course of evidence has stated that he was not accused in any other case. This fact has been contradicted by the defence witness because the document exhibited shows that P.W.4 was accused from before. No doubt, this witness has led his evidence on that score. 11. The post mortem examination of both the deceased was performed by P.W.10 Dr. Shiv Nath Prasad. The post mortem examination on the dead body of Baidyanath Rai son of Ganesh Rai of village Narayanpur Darhpura, P.S. Mahnar was held on 15.03.1986. The dead body was identified by constable C363 Ghanshyam Yadav (not examined), Choukidar Ramjitan Paswan (not examined), Akal Paswan (not examined) and one Rajeshwar Pd. Ray Rakesh (not examined). He found following ante mortem injuries: (I) Incised & penetrating wound on the left & anterior side of base of neck size 2"x1" x opening into the chest cavity cutting the vessels of neck & penetrating the upper lobe of the left lung. The direction of the injury was towards posteriorly. Injury no.1 might be possible by Bhala. (II) Incised wound 3½” x ¾"x1" on the left palm in the thinner region. On opening the plural cavity was full of blood. The direction of the injury was towards posteriorly. Injury no.1 might be possible by Bhala. (II) Incised wound 3½” x ¾"x1" on the left palm in the thinner region. On opening the plural cavity was full of blood. The viscera was pale, heart was empty, bladder partially full, stomach contained semi digested food material about four ounces. 12. In opinion of the doctor death was on account of injury nO.1 which was caused by sharp pointed substance. The other injuries were due to some sharp cutting substance may be by Farsa. The time elapsed since death was 24 hours of the post mortem examination which was done at 9.45 A.M. on 15.03.1986. The post mortem examination report is exhibit-4. 13. On the same date at 9 A.M. the post mortem examination on the dead body of Raj Ballam Ray son of late Ashok Ray of village Narayanpur, Dharpura, was also done. The dead body was identified by constable C363 Ghanshyam Yadav (not examined), Choukidar (not examined), Akal Paswan (not examined) and Rajeshwar Pd. Ray Rakesh (not examined). The doctor found the following injuries: (I) incised and penetrating wound on the left side of chest anteriorly 2½” x 3/4" entering into chest cavity cutting third rib anteriorly penetrating the upper lobe of the left lung. (II) Incised wound 3/4"x1/8" x skin deep on the base of the left index dorsal aspect. (III) Incised wound 1"x1/5" on the right leg in its lower thinner anteriorly. On opening left ventricle of heart was cut. Bladder partially full, the stomach contained semi digested food of four ounces. 14. In the opinion of the doctor, the death was due to injury no.1 which was caused by sharp & penetrating substance such as Bhala. Other injuries were caused by sharp cutting substance such as Farsa. The time elapsed since death was within 24 hours at the time of post mortem examination. Post mortem examination report is exhibited as exhibit -4/1. 15. Learned counsel for the appellant has assailed the manner of occurrence as given by the prosecution and it has been submitted that the manner of occurrence is not corroborated by the doctor who has conducted the post mortem examination. The argument is that the doctor has found injury which was uniform. Fatal injury was by wedged shape weapon. 15. Learned counsel for the appellant has assailed the manner of occurrence as given by the prosecution and it has been submitted that the manner of occurrence is not corroborated by the doctor who has conducted the post mortem examination. The argument is that the doctor has found injury which was uniform. Fatal injury was by wedged shape weapon. While pointing out the cross examination of the doctor it has been submitted that the doctor has described the injury ante mortem of both the deceased which was caused by wedged shape weapon/instrument, but the injures received by these two deceased were not of wedged shape weapon, rather it was uniform which could not have been possible by Bhala and such injuries could be possible by Gupti etc. Prosecution has not come with this version that assault was made by a weapon like Gupti and so the entire prosecution case on the manner of occurrence gets clouded. 16. In view of the evidence of the doctor who has not found any injuries as alleged by the prosecution witnesses, it has been submitted that on this basis a doubt is created in the manner of occurrence relating to the death of the deceased. 17. On the other hand, learned counsel appearing on behalf of the State submitted that these are minor variations in the occurrence. The doctor has proved that the death was caused on the date and time of occurrence. 18. The slight variations cannot create doubt in the prosecution version and as such minor variations can be ignored. There is consistent version of the eye witnesses i.e. P.Ws. 1, 2, 3, 4 and 6 on the point of occurrence. We have compared the ocular version of the occurrence with the post mortem report and we have come to the conclusion that death was caused by use of sharp penetrating weapon and the manner of assault and circumstance proved by the ocular evidence of the witnesses who have stated that the death of two persons was caused by the assault of appellant Bhola Rai and Bilat Rai. Besides the two deaths the same persons were also received injuries. P.W.12 has examined injured Nagdeo Rai and found following injuries: (I) Swelling with tenderness with superficial injury 4"x4" on the left side of the chest back. Grievous nature caused by hard and blunt substance age within 24 hours. Besides the two deaths the same persons were also received injuries. P.W.12 has examined injured Nagdeo Rai and found following injuries: (I) Swelling with tenderness with superficial injury 4"x4" on the left side of the chest back. Grievous nature caused by hard and blunt substance age within 24 hours. (II) Swelling with tenderness 1"x1" on the left shoulder simple in nature caused by hard and blunt substance. (III) Swelling with tenderness 1"x1" on the left shoulder simply caused by hard and blunt substance. 19. On the same date, at about 6 P.M. Doctor P. W.12 examined Jappan Ray son of Ashok Ray of Narayanpur and found the following injuries: (I) Incised injury 2/1"x2" on the left thigh grievous in nature caused by sharp cutting and pointed substance such as Bhala. These injuries was caused within 24 hours of occurrence. (II) Incised the punctured injury 1"x1"x bone deep with chips on the left buttock, grievous in nature, caused by cutting and pointed substance such as Bhala age within 24 hours. The injury reports are on record (Exhibit-9 & 9/1). 20. On the other hand, defence has examined Dr. Bishwanath Prasad Sinha as D.W.1 and he has brought some injuries report on the record. D.W.1 was posted at Mahnar State Dispensary on 14.03.1986 which is the date of occurrence and on that date he has examined appellant Bilat Rai and found the following injuries upon his person: (I) Lacerated wound 1/2"x1/3" x skin deep on the anterior surface. (II) One lacerated would 3/4"x1/3" x skin deep on upper portion of left arm. (III) On contusion swelling 1"x1/2" on left wrist joint. 21. On the same date the dame doctor examined appellant Bhola Rai and found one contusion with three swellings 1 ½” x1½” on right arm just above elbow joint. Injury is simple in nature caused by hard blunt substance and these injuries have been brought on record as Ext. A & A/1. 22. It has been argued by earned counsel appearing on behalf of he appellants that the prosecution has failed to explain the injuries of the accused Bilat Rai and Bilat Rai. So prosecution has not examined any witness on this point. A & A/1. 22. It has been argued by earned counsel appearing on behalf of he appellants that the prosecution has failed to explain the injuries of the accused Bilat Rai and Bilat Rai. So prosecution has not examined any witness on this point. The fact has come through the depositions of many witnesses that on the date of occurrence, there was quarrel between the sons of one of the accused which aggravate for fighting between the accused persons on the one hand and this informant and his persons on the other. This fact has been clarified by the Investigating Officer also who in course of examination of the place of occurrence has found the mark of violence by way of brick bats at the place of occurrence and it has been argued that in a case of free fight between the two groups, scuffle of retaliation cannot be measured in such circumstance when one party has come to harm another. It has also been submitted that this issue has also been decided in various decision by this court as well as by the Hon'ble Apex Court and it has been held that in case of free fight, it is difficult to hold one side guilty and on this basis it has been argued that the case cannot come under the purview of Section 302 of the Indian Penal Code because there was no intention to cause death to any persons though they were in dozen in numbers and were variously armed. In fact, it was an immediate tenderness which the accused persons have played in the facts and circumstances of the case and so in the private defence it cannot be held to be liable for commission of offence under section 302 of the Indian Penal Code. 23. There are two types of accused/appellants in the case. On the one hand there are 10 appellants in Criminal Appeal No. 203 of 1988 they have been convicted under section 323 and 147, 148 of the Indian Penal Code though they were charged under sections 302/149 of the Indian Penal Code also, but under section 302/149 I.P.C. they were acquitted because their common intention was not found to be present. It has been submitted that on the same material another accused Chintaman Rai has been acquitted and there was no valid justification for distinguishing the case of these 10 appellants with the case of Ghintaman Rai. The only defence of accused Ghintaman Rai was that only one of the witnesses during investigation has named this accused. This cannot be a valid ground for differentiation between the case of one accused and others. 24. We have also perused the evidence brought on record and upon perusal of the entire materials on record we find that Ghintaman Rai was almost on similar footing to the case of Surendra Rai, Janardan Rai, Vishwanath Rai, Jokhan Rai, Shishu Rai, Jagdeo Rail Jai Kant Rai, Bhisham Rai, Kisho!e Rai and Suraj Rai. So, in our view, these 10 persons deserve the same treatment which has been given to Ghintaman Rai and on this basis they are held to be not guilty of any of the charges framed against them. So they deserve to be acquitted. 25. So far appellants Bhola Rai and Bilat Rai are concerned, the prosecution case is that they were intending to cause ultimate harm and in that manner they have caused death to two persons but this fact is not proved because of inconsistency between the evidence of the eye witnesses and the post mortem examination report. The nature of injury gets doubted with regard to manner of assault. The prosecution has proved that the death was caused by means of weapons which has been attributed to two appellants namely Bhola Rai and Bilat Rai, but, for proving charge under section 302 I.P.C., the prosecution is required to prove that the accused persons were having intention to cause death and they were having knowledge also that their acts was likely to cause death. 26. It has been argued that this cannot be a case of murder so they are not able to be convicted under section 302 I.P.C. At best it comes under the purview of Section 304(II) I.P.C. which is for culpable homicide not amounting to murder. 27. After relying upon the entire evidence, it appears that these accused, no doubt, have inflicted fatal injuries which has caused death but from facts it appears that they have no intention at all to kill, so the conviction of these two appellants under section 302 I.P.C. is not justified. 28. 27. After relying upon the entire evidence, it appears that these accused, no doubt, have inflicted fatal injuries which has caused death but from facts it appears that they have no intention at all to kill, so the conviction of these two appellants under section 302 I.P.C. is not justified. 28. Accordingly, the conviction of the these two appellants namely Bhola Rai and Bilat Rai under section 302 of the Indian Penal Code is altered under section 304 part II of the Indian Penal Code. 29. On the point of sentence, it appears that the age of convict Bilat Rai was about 65 years in the statement recorded under section 313 of the Code of Criminal Procedure in the year 1988 meaning thereby that by now he must have completed about 88 years. Bhola Rai was aged about 40 years and now he must have completed about 62 years. On the Lower Court Records there are some papers indicating that Bhola Rai was visitor of Kanke Mental Hospital and at his consistent defence was that he was patient of insanity. This court is not required to give finding with regard to insanity of Bhola Rai. 30. Considering the age of these two appellants namely Bhola Rai and Bilat Rai and the fact that the judgment in this case was delivered more than 22 years earlier, the sentence of these two appellants is modified to the period already undergone by them which shall be deemed to be sufficient for the ends of justice. 31. In the result, Criminal Appeal No. 203 of 1988 is allowed, the judgment of conviction and order of sentence of the appellants of this appeal is set aside and they are acquitted. Criminal Appeal No. 220 of 1988 stands dismissed with the modification in conviction and sentence of the appellants namely Bhola Rai and Bilat Rai. Their conviction and sentence is altered from Section 302 Indian Penal Code to Section 304(II) Indian Penal Code and their sentence is reduced to the period already undergone by them in course of the trial and appeal. With the aforesaid modification in the judgment of conviction and sentence. Criminal Appeal No. 220 of 1988 is hereby dismissed. The appellants are discharged from liabilities of their bail bond.