JUDGMENT 1. This is an appeal filed under Section 374 of the Code of Criminal Procedure by 15 accused-appellants against judgment and order dated 11.9.2003 of learned Additional Sessions Judge (Fast Track) Alwar, in Sessions Case No. 13/2002 (21/02), whereby accused-appellant No. 4 Padam @ Padam Chand was convicted for offence under Section 302 I.P.C. simplicitor, accused-appellant No. 8 Sonya @ Sohan Lal was convicted for offence under Section 307 I.P.C. simplicitor, accused-appellant No. 5 Pappu was convicted for offence under Section 326 I.P.C. simplicitor, whereas all other accused-appellants, including each of these three, in respect of substantive offence of one another, who were individually convicted for offences under Sections 302, 307 and 326 I.P.C. simplicitor, were convicted for offences under Sections 148, 324/149, 323/149, 447 of the I.P.C. Accused Padam @ Padam Chand was sentenced to life imprisonment and a fine of Rs. 5000/-, in default of payment thereof, he was to further undergo one year RI on account of his conviction under Section 302 I.P.C. simplicitor. Accused Sonya @ Sohan Lai was sentenced to ten years RI and a fine of Rs. 2000/-, in default of payment thereof he was to further undergo one year RI for his conviction under Section 307 I.P.C. Accused-appellant Pappu was sentenced to five years RI and a fine of Rs. 1000/-, in default of payment thereof, he was to further undergo six months RI for his conviction under Section 326 I.P.C. Accused-appellants Padam @ Padam Charid and Sonya @ Sohan Lai were also convicted for offence under Section 3/25 of the Arms Act and thereunder both were sentenced to undergo three years RI and a fine of Rs. 1000/- each, in default of payment thereof they were to further undergo three months RI. All accused-appellants, including these three, were awarded sentence of life imprisonment and fine of Rs. 2000/-, in default of payment of fine, they were to further undergo one year RI for offence under Section 302/149 of the I.P.C.; they were sentenced to undergo seven years RI with a fine of Rs. 1000/-, in default of payment of which, they were to further undergo six months RI for offence under Section 307/149 of the I.P.C.; they were sentenced to undergo five years RI and a fine of Rs. 1000/-, in default of payment of which, they were to further undergo six months RI for offence under Section 307/149 of the I.P.C.; they were sentenced to undergo five years RI and a fine of Rs. 1000/-, in default of which they were to further undergo six months RI for offence under Section 326/149 I.P.C.; they were sentenced to undergo two years RI and a fine of Rs. 1000/-, in default of payment thereof they were to further undergo three months RI for offence under Section 324/149 I.P.C.; and they were sentenced to undergo one year RI for offence under Section 323/149 I.P.C., and three months RI for offence under Section 447 I.P.C. All the sentences were ordered to run concurrently. 2. It may be at the very outset noted that one of the appellants, namely, appellant No. 3 Charan Singh expired during pendency of the appeal and therefore his appeal stood abated. Sentence of all other accused-appellants, except accused-appellant No. 4 Padam @ Padam Chand, was suspended by this Court. 3. Facts giving rise to this appeal are that a parcha bayan was given by one Mohar Singh S/o Lahari, to Station House Officer, Police Station, Udyog Nagar, Alwar, on 1.5.2001, at about 10.00 AM, alleging therein that he had gone to plough his dherwala agriculture field at about 8.00-8.30 AM on that day on his tractor accompanied by his nephew Sher Singh who was on another tractor. They were also accompanied by other persons, namely, Jaisingh @ Bhuru, Ramoti, Siyawati, Mukesh, Khemchand, Mansingh, Kishore, Kailash, Natthi etc. After ploughing the field, when they were returning to home, Jumma, Bhoodhar, Polya, Lallu, Padam, Charni, Pappu, Aanya, Sonya, Daulat, Tara Bai, Murti, Nathiya, Gujari, Sampatti, Laxmi, Sheela, Kamlesh etc. armed with guns, pharsis, kulharis and lathis, intercepted their way and asked them why they have ploughed their agriculture field. Padam opened fire which hit Jaisingh @ Bhuru, who died on the spot. Sonya @ Sohan Lai also opened fire as a result of which Mukesh received injuries. Rest of the accused started beating other persons and inflicted blows with kulharis, pharsis and lathis. Mukesh, Sher Singh, Khemchand, Mansingh, Smt. Ramwati and Siyawati had received grievous injuries. Informant however stated that since he was on the tractor, he did not receive any injury. Sonya @ Sohan Lai also opened fire as a result of which Mukesh received injuries. Rest of the accused started beating other persons and inflicted blows with kulharis, pharsis and lathis. Mukesh, Sher Singh, Khemchand, Mansingh, Smt. Ramwati and Siyawati had received grievous injuries. Informant however stated that since he was on the tractor, he did not receive any injury. Ram Khilari, Lallu and Ramjas have seen this occurrence and it is because they started raising hue and cry that the accused ran away. Family members of the informant took all the injured including deceased Jaisingh @ Bhuru to the hospital at Alwar. 4. That a regular first information report was on that basis chalked out and investigation commenced. The Investigating Officer, after investigation, filed challan against as many as eighteen accused for offence under Sections 147, 148, 149, 302, 307, 326, 324, 323, 341 and 447 of the I.P.C. One of the accused, namely, Bhoodhar died during trial, thus trial proceeded only against seventeen accused persons. Prosecution in support of its case examined as many as twenty witnesses and exhibited 76 documents. Defence however produced five witnesses and exhibited 21 documents. There are in all thirteen eye-witnesses of the incident. 5. Accused in their statements tinder Section 313 Cr.P.C. denied the charges and stated that they have been falsely implicated. All the witnesses are from one family and they are not telling the truth. Accused Polya additionally stated that the land of khasra No. 224, with regard to which dispute arose, was in fact given to them by complainant party in exchange of another land of khasra No. 160, which the complainants are cultivating. Learned trial Court, on conclusion of the trial, convicted and sentenced the accused-appellants in the manner indicated above. Hence this appeal. 6. We have heard Shri Kapil Gupta, learned counsel for appellants, Shri J.R. Bijarnia, learned Public Prosecutor and Shri T.C. Sharma, learned counsel for complainant. 7. Shri Kapil Gupta, learned counsel for accused-appellants has argued that prosecution has suppressed genesis of the incident inasmuch as lot of improvements have been made by prosecution witnesses upon their original version. All family members of accused have been falesly embroiled in this case including six female members and unfortunately all of them have been convicted by the learned trial Court. All family members of accused have been falesly embroiled in this case including six female members and unfortunately all of them have been convicted by the learned trial Court. Learned trial Court has not made any effort to find out the truth and has, in a mechanical manner, convicted all the accused who were named in the F.I.R. Most of the accused were not assigned any specific role and were merely stated to be present 'at the place of occurrence, which was quite natural because they had went to plough their agriculture field. 8. Shri Kapil Gupta, learned counsel for the appellants, has referred to statements of eye-witnesses and argued that their statements are full of contradictions and do not inspire confidence. The real story was that the land in dispute was exchanged by father of accused Polya with complainant party, and he constructed a well over that land and civil cases were also pending between both the parties before the revenue Court regarding the disputed land. It was a free fight in which persons from both the sides received injuries and cross-cases were registered. Apart from deceased Jaisingh @ Bhuru, there were five injured from the side of the complainant, namely, Sarbati, Ramwati, Mukesh, Khemchand and Sher Singh, whereas there were as many as seven accused, who received injuries in the incident. In this connection learned counsel invited attention of the Court towards statement of PW-18 Dr. Amar Singh Rathore and took the Court through the injury reports of aforesaid injured from the side of complainant party. As per injury report Exhibit P-25, PW-11 Siyawati received only one injury and that was opined to be simple in nature. PW-10 Ramwati received one simple injury vide Exhibit P-26. PW-22 Mukesh received two firearm injuries vide injury report Exhibit P-27, one of which was found to be grievous. PW-20 Khemchand received two injuries; one of which was caused by blunt edged weapon, and another was caused by sharp edged weapon which was found to be grievous. PW-17 Sher Singh received two injuries out of which injury No. 2 was caused by sharp edged weapon and was found to be grievous. Mansingh received two injuries which were found to be simple. As against this, seven accused-appellants, namely, Kamlesh, Tarawati, Gujari, Jumma, Laxmi and Charan Singh received several injuries for which cross case was registered. 9. PW-17 Sher Singh received two injuries out of which injury No. 2 was caused by sharp edged weapon and was found to be grievous. Mansingh received two injuries which were found to be simple. As against this, seven accused-appellants, namely, Kamlesh, Tarawati, Gujari, Jumma, Laxmi and Charan Singh received several injuries for which cross case was registered. 9. Learned counsel for accused-appellants further argued that eye-witness PW-11 Siyawati, in her statement, has stated that accused Padam and Sonya were armed with guns; Sheela was armed with pharsi and rest of accused were having, gun, tanchiya, lathi, pharsi etc. Padarn had fired at Jaisingh and another firearm was opened by Sonya, which hit Mukesh; Sheela inflicted pharsi blow on her head; Aanya inflicted pharsi blow on Sher Singh; she herself received injuries on her head and shoulder. Apart from her, Khemchand, Sher Singh, Man Singh, Natthi, Mohar Singh also received injuries. It was argued that Sheela was originally not assigned pharsi blow on the head of this witness. The prosecution witnesses in the statements under Section 161 Cr.P.C. recorded on 1.5.2000 had made this allegation against co-accused Bhoodhar. When however. Bhoodhar died during trial, they charged their version and focused on Sheela to falsely implicate her on this overt act, whereas no recovery of any weapon has been made at the instance of appellant Sheela. 10. Learned counsel for appellants argued that in parcha bayan all the three eye-witnesses i.e. Ram Khilari, Ram Kishan and Ram Singh, who were named by the complainant, were his close relatives whereas Exhibit P-18, the site plan, indicates that Gunga (Kala), Kallu Jat and Ram Daval were immediate neighbours of the field where occurrence took place but none of them have been examined by the prosecution as witness. 11. Learned counsel also referred to statement of PW-12 Man Singh and argued that this witness has also, apart from naming accused, assigned the injury to only few. Padam fired at Jaisingh and thereafter Sonya @ Sohan Lal opened firearm at Mukesh who received injury on his shoulder. Thereafter all accused, who were armed with guns, pharsis, kulhari and lathis, started beating members of complainant party. Charan Singh inflicted a pharsi blow on his right thigh. Second injury on his shoulder was inflicted by Lallu by pharsi. Sher Single, Khemchand, Siyawati, Ramwati were also received the injuries. 12. Thereafter all accused, who were armed with guns, pharsis, kulhari and lathis, started beating members of complainant party. Charan Singh inflicted a pharsi blow on his right thigh. Second injury on his shoulder was inflicted by Lallu by pharsi. Sher Single, Khemchand, Siyawati, Ramwati were also received the injuries. 12. Similar statement is made by PW-13 Mansingh that Padam had opened gun fire at Jaisingh @ Bhuru who died. Further firearm injury was caused by Sonya @ Sohan Lal which was received by Mukesh at his left shoulder. Sheela inflicted a kulhari blow on the person of Siyawati. For others, he cannot say who inflicted what injury to whom. 13. PW-14 Natthi Singh, PW-15 Lallu and PW-16 Girraj have also made similar statement. PW-17 Sher Singh has also made similar statement by assigning specific overt act as noticed above and made general allegation of attacking members of the complainant party. As against other accused, he has however only stated that Aanya inflicted on him a pharsi blow as a result of which he received injuries on his finger and thumb. Injuries were also received by Khemchand, Man Singh, Ramwati, Siyawati. 14. PW-22 Mukesh is also an injured eye-witness. He has also made similar allegation with specific overt act to some of accused and general allegation of beating against rest of accused. However, he specifically stated that Sonya @ Sohan Lal fired at him leading to injury on his left shoulder, as a result of which he became unconscious. Sher Singh, Khemchand. Ramwati, Siyawati and Man Singh also received injuries in the same incident. 15. Shri Kapil Gupta, learned counsel for accused-appellants argued that PW-3 Virendra Singh, patwari of area concerned, in response to a pointed query in the cross-examination, has categorically stated that he was not sure as to who was in possession of the disputed land. He does not know whether any exchange of the land was made in between the accused and complainant in the year 1969. To his knowledge, there was a stay in respect of the land of Khasra No. 224 but there was no stay in respect of land of khasra No. 160. It is not in his notice that the accused are in possession of the land of khasra No. 224 because he was posted there only two months before. To his knowledge, there was a stay in respect of the land of Khasra No. 224 but there was no stay in respect of land of khasra No. 160. It is not in his notice that the accused are in possession of the land of khasra No. 224 because he was posted there only two months before. It was argued that in fact the accused-appellants were in peaceful possession of the land and the complainant party forcibly encroached upon the land, therefore their conviction under Section 447 of the I.P.C. was wholly unjustified and that they could not be held to be aggressor for the incident in question. In the site plan (Exhibit P-18), possession of the land has not been shown with the complainant-party. Site plan also indicates that agriculture land has been freshly ploughed. The fact that 14-15 persons came on tractor by itself goes to show that it was complainant party, who was aggressor and initiated the incident. They were also armed with weapons which is proved from the fact that seven persons received injuries from the side of accused party. Accused-appellants therefore cannot be taken to be aggressors. 16. Shri Kapil Gupta, learned counsel argued that out of total eighteen accused, recovery of weapons has been made only at the instance of seven accused and not all accused-appellants. Recovery of one 12 bore gun is shown to have been made at the instance of accused Padam @ Padam Chand vide Exhibit P-61; recovery of one 12 bore gun is shown to have been made at the instance of accused Sonya @ Sohan Lal vide Exhibit P-62. Recovery of 'pharsi' is shown to have been made at the instance of Pappu vide Exhibit P-63. Recovery of one 'pharsi' is shown to have been made at the instance of Daulat vide Exhibit P-64. Recovery of 'lathi' is shown to have been made at the instance of accused Aanya @ Anandi Lal vide Exhibit P-65. Recovery of 'tanchya' is shown to have been made at the instance of accused Charan Singh vide Exhibit P-23. Recovery of 'tanchiya' is shown to have been made at the instance of accused Murti vide Exhibit P-31. Nothing has been recovered from other accused persons. Thus total recovery has been made at the instance of above seven accused and no recovery has been made from other accused. Recovery of 'tanchiya' is shown to have been made at the instance of accused Murti vide Exhibit P-31. Nothing has been recovered from other accused persons. Thus total recovery has been made at the instance of above seven accused and no recovery has been made from other accused. The prosecution has thus failed to prove the fact that they were armed with any weapon whatsoever. 17. Learned counsel argued that learned trial Court has acquitted two accused, namely, Nathiya and Sampatti, on analogy that they were not assigned any specific role, whereas, in his submission, on the same analogy, rest of the accused were also entitled to acquittal. It was argued that merely because some of the accused were armed with weapons, they cannot be deemed to be member of unlawful assembly if it is shown that they did not use the arm, which is a relevant factor for deciding the question as to whether they were members of unlawful assembly or not, which can be proved only if such member was assigned some overt act. 18. Learned counsel for the appellants argued that there was no prior meeting of the mind nor premeditation. The incident took place at the spur of moment. At the maximum only one or two persons may have shared the common intention of committing murder. It was a free fight in which each accused had to be held responsible for his individual act. It was argued that while in the statements recorded under Section 161 Cr.P.C., the injured witnesses did not assign their injuries to specific accused and therefore their Court statements cannot be believed. In support of this argument, learned counsel relied on judgments of the Supreme Court in Yunis alias Kariya etc. v. State of Madhya Pradesh, AIR 2003 SC 539 . 19. Shri Kapil Gupta, learned counsel for accused-appellants further argued that the land in dispute belonged to a member of Scheduled Caste, which could not have been transferred even by exchange to complainant as such transfer was barred by Section 42 of the Rajasthan Tenancy Act, who did not belong to Scheduled Caste. The complainant therefore cannot be allowed to say that they were in possession of the disputed land. 20. The complainant therefore cannot be allowed to say that they were in possession of the disputed land. 20. Shri Kapil Gupta, learned counsel has argued that there was no proper sanction for prosecution of the accused-appellants Padam @ Padam Chand and Sonya @ Sohan Lal tinder Section 3/25 of the Arms Act. It was argued that accused Sonya @ Sohan Lal also could not be held guilty of offence under Section 307 of the I.P.C. because even if he fired the gun, the injury that was received by injured Mukesh was only simple in nature. Making reference to illustration below Section 307 of the I.P.C., learned counsel' argued that if by a gun shot fire, no injury has been received, the offence of attempt of murder tinder Section 307 of the I.P.C. is not attracted. When, however, any injury has been actually received, this question shall have to be decided on the basis of nature of injury so received. Conviction of the accused-appellants Pappu for offence under Section 326 of the I.P.C. can hardly be justified because it was based a fracture of ring finger and thumb. 21. It was argued that statements of many of prosecution witnesses under Section 161 of the Cr.P.C. were recorded with enormous delay after two months after much deliberation which explains why all members of family of accused-party. There are number of contradictions in the statements of prosecution witnesses, benefit of which should go to the accused. 22. Learned counsel for the accused-appellants also referred to statement of PW-9 Ramjas and argued that this witness has stated that soon after causing firearm injuries to Jaisingh @ Bhuru and Mukesh, both the parties started inflicting injuries to each other, which indicates that there was a free fight. When specific questions were put to all the prosecution witnesses about injuries of the seven of the accused-appellants, they feigned ignorance thereabout. They are thus guilty of suppressing the truth from the Court and should not be believed. Learned counsel in this connection relied on judgment of the Supreme Court in Lakshmi Singh and others v. State of Bihar, (1976) 4 SCC 394 . They are thus guilty of suppressing the truth from the Court and should not be believed. Learned counsel in this connection relied on judgment of the Supreme Court in Lakshmi Singh and others v. State of Bihar, (1976) 4 SCC 394 . Learned counsel in support of his arguments cited judgment of the Supreme Court in Shaji and others v. State of Kerala, 2011 Cr.L.R. (SC) 520 , Kuldip Yadav and others v. State of Bihar, (2011) 2 SCC (Cri) 632 , Manoj alias Bhau and others v. State of Maharashtra, AIR 1999 SC 1620 and Boddella Babul Reddy v. Public Prosecutor, High Court of Andhra Pradesh, (2010) 3 SCC 648 . 23. 'D r contra, Shri J.R. Bijarnia, learned Public Prosecutor and learned counsel for complainant opposed the appeal and argued that learned trial Court has rightly convicted accused-appellants for all aforesaid offences with the aid of Section 149 of the I.P.C. because they were in Pmbers of unlawful assembly. They came fully armed with deadly weapons. Each one of them shared common object of such unlawful assembly in furtherance of which they committed murder of Jaisingh @ Bhuru and caused number of injuries including grievous injuries oil the person of other members of complainant party. Two accused, namely, Padam @ Padam Chand and Sonya @ Sohan Lal were armed with 12 bore guns whereas number of accused persons were armed with 'tanchya', which is a deadly weapon capable of being used both by blunt and sharp side. Some accused had 'lathi' fitted with steel blade and number of accused persons had 'gandasi' whereas others had simple 'lathis'. 24. Learned Public Prosecutor argued that recovery of-weapons has also been made at the instance of accused persons, namely, Padam @ Padam Chand, Sonya @1 Sohan Lai, Pappu, Daulat, Aanya Q Anandi Lai, Charan Singh and Murti. It is argued that the injuries received by some members of accused-party were only superficial in nature and it is not necessary that in every situation the prosecution should explain the injuries. This cannot be said to be fatal to prosecution case. It is argued that the injuries received by some members of accused-party were only superficial in nature and it is not necessary that in every situation the prosecution should explain the injuries. This cannot be said to be fatal to prosecution case. In support of this arguments, learned Public Prosecutor relied on judgments of the Supreme Court in Mahmood and another v. State of Uttar Pradesh, (2007) 14 SCC 16 , Bankey Lal v. State of U.P., AIR 1971 SC 2233 , Bhagwan Tana Patil v. The State of Maharashtra, AIR 1974 SC 21 . 25. Learned Public Prosecutor, in support of his arguments, relied on judgment of the Supreme Court in Sikandar Singh v. State of Bihar, (2010) 7 SCC 477 , wherein it has been held that while determining the question as to whether a particular person was a member of unlawful assembly, the Court has to take into consideration the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. A 'common object' does not require a prior concert and meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. 26. Learned Public Prosecutor referred to the statement of PW-6 Bhumkhilari and argued that this witness stated that when he was going to his agriculture field, the accused persons met him on the way; they were all armed with aforesaid weapons. When he enquired from them, they stated that they are going to plough the agriculture field of Lahari Patel and they would kill him. This witness then stated that he requested the accused not to do such an illegal act but despite his persistent requests, they did not pay any heed to him. This indicates that all the accused had come with pre-planning to murder the members of complainant party. It is therefore prayed that the appeal be dismissed and conviction and sentence awarded by trial Court be maintained. 27. We have given our anxious consideration to rival submissions and perused the material on record. 28. This indicates that all the accused had come with pre-planning to murder the members of complainant party. It is therefore prayed that the appeal be dismissed and conviction and sentence awarded by trial Court be maintained. 27. We have given our anxious consideration to rival submissions and perused the material on record. 28. Evidence shows that all the eye-witnesses have consistently assigned the firearm injuries received by Jaisingh @ Bhuru, to accused Padam @ Padam Chand, who first opened fire and initiated the incident. Another accused-appellant, namely, Sonya @ Sohan Lal then opened fire at Mukesh leading to injury on his shoulder. After this, there is variance in the statements of number of prosecution witnesses as to the role assigned to one or the other accused with regard to injuries sustained by other members of complainant party. PW-6 Ramkhilari has not assigned any specific overt act to any accused except appellant Padam @ Padam Chand and Sonya Sohhan Lal and has made a general statement that other accused also inflicted injuries to the members of complainant party. PW-9 Raiyas has also alleged that it was Padam who initiated the incident by opening fire at Bhuru followed by Sonya @ Sohan Lai who opened fire at Mukesh and then both the parties attacked each other, which is indicative of a free fight between the parties. He too has not assigned any specific overt act to any other accused thereafter. PW-10 Ramwati has also reiterated the specific allegation against Padam and Sonya as aforesaid. However, additionally she stated that accused Mst. Murti inflicted a kulhari blow on her head and then has named other members who received injuries. Then comes statement of PW-11 Siyawati, who has also reiterated the allegation of opening fire against Padam @ Padam Chand whereby injury was received by Jaisingh, and then against Sonya, who opened fire which caused injury to Mukesh but has additionally stated that accused-appellant Sheela inflicted a pharsi blow on her head and Aanya had inflicted pharsi blow on the person of Sher Singh. She also named other injured. PW-12 Mansingh, after making specific allegation against Padam and Sonya, has additionally stated that Charan Singh inflicted a pharsi blow on his right thigh and Lallu inflicted another pharsi blow on his shoulder. Then he has named the other injured, who received injuries. She also named other injured. PW-12 Mansingh, after making specific allegation against Padam and Sonya, has additionally stated that Charan Singh inflicted a pharsi blow on his right thigh and Lallu inflicted another pharsi blow on his shoulder. Then he has named the other injured, who received injuries. PW-14 Natthi Singh has, after making specific allegation against Padam and Sonya as aforesaid, stated that Sheela inflicted a kulhari blow on the head of Siyawati and for others he was not sure as to which accused inflicted which particular injury to which injured. Though this witness named all other members of the complainant party as injured. PW-15 Lallu, after assigning specific overt act to Padam and Sonya as aforesaid, has not assigned specific role to any other accused. PW-16 Girraj too has after assigning specific overt act of firearm injuries to Padam and Sonya, made omnibus allegation against all other accused. PW-17 Sher Singh has also likewise made specific allegation against Padam and Sonya only for the firearm injuries received by Jaisingh @ Bhuru and Mukesh but has additionally stated that Daulat and Aanya inflicted pharsi blow on his hand as a result of which he received injury on his finger and thumb. He has then named other injured of the complainant side. PW-19 Kishore has also assigned specific role to Padam and Sonya of firearm injuries received by deceased Jaisingh Bhuru and Mukesh, but has thereafter named other injured of the complainant side but has not assigned any specific overt act to any accused. PW-20 Khemchand has also reiterated the specific allegation of causing firearm injury on the person of Jaisingh @ Bhuru against Padam and on the shoulder of Mukesh against Sonya. He has however further stated that accused-appellant Pappu inflicted a pharsi blow on his finger. Then he has named other injured of the complainant party. PW-21 Moharsingh has also similarly stated that Padam opened firearm at deceased Jaisingh @ Bhuru and, Sonya inflicted a firearm injury on Mukesh on his shoulder. He has assigned specific weapons to accused like he has stated that accused 'Charan was armed with pharsi, Pappu also had pharsi, Daulat had lathi, Tara had kulhari, Sheela had kulhari. Rest of the accused were armed with pharsis. Thereafter he has stated that Charan; has inflicted a pharsi blow on the right side back of injured Mansingh. He has assigned specific weapons to accused like he has stated that accused 'Charan was armed with pharsi, Pappu also had pharsi, Daulat had lathi, Tara had kulhari, Sheela had kulhari. Rest of the accused were armed with pharsis. Thereafter he has stated that Charan; has inflicted a pharsi blow on the right side back of injured Mansingh. He stated that since he was sitting on the driver seat of the tractor he did not receive any injury. PW-22 Mukesh has assigned the firearm injury on his shoulder to Sonya and stated that Padam opened fire at deceased Jaisingh @ Bhuru. He has thereafter not assigned any specific overt act to any of the accused. Although he has named the injured. 29. Apart from Jaisingh @ Bhuru and Mukesh, who receive,l firearm injuries, Siyawati had received one injury which was found to be simple in nature vide Exhibit P-25, Ramwati had received one injury vide Exhibit P-26 which was found to be simple in nature, Mukesh had received two injuries vide Exhibit P-27 of which injury 'No. 2 was grievous with pallets being found in X-ray report Exhibit P-3 with three radioscopy shadow on the left side of chest last to scapular bladder seen and one radioscopy shadow above the right side seen which is indicative of presence of pallets in his body. Khemchand whose injury report is Exhibit P-28 and X-ray report is Exhibit P-4, received two injuries one of which was grievous being fracture of ring finger of his right hand. Sher Singh too received two injuries vide Exhibit P-29, one of which was fracture of middle part of the right ring finger. Mansingh received two injuries vide Exhibit P-30, both of which were simple. All these injuries have been proved by the Medical Officer PW-18 Dr. Amar Singh Rathore. 30. PW-18, Dr. Amar Singh Rathore, has also proved injuries of the members of the accused party. Three simple injuries received by accused Kamlesh vide Exhibit D-7; two injuries received by accused Tarawati vide Exhibit D-8 (whose X-ray report is Exhibit D-14), one of which was found to be a fracture of her ring finger of left hand. He has also proved one simple injury received by accused Gujari vide Exhibit D-9; two injuries. Three simple injuries received by accused Kamlesh vide Exhibit D-7; two injuries received by accused Tarawati vide Exhibit D-8 (whose X-ray report is Exhibit D-14), one of which was found to be a fracture of her ring finger of left hand. He has also proved one simple injury received by accused Gujari vide Exhibit D-9; two injuries. received by accused Jumma vide Exhibit D-10 (whose X-ray report is Exhibit D-15), out of which one is grievous fracture of metacarpal bone of both the hands. One abrasion on the person of accused Laxmi was found to be simple in nature vide Exhibit D-11. Four simple injuries on the person of accused Charan Singh were proved by the Doctor vide Exhibit D-12. Similarly four simple injuries on the person of accused Bhoodhar were found proved vide injury-report Exhibit D-13. It is thus clear that significant number of injuries were received on the side of accused party. 31. Dispute between the parties was on an agriculture land which, according to accused party, was given to them by complainant in exchange of their another piece of land, however, the complainant still insisted on ploughing that land, which they gave to accused-party in exchange, and the accused objected to that. A very hazy picture emerges from the evidence so adduced on the question of possession. No definite mention has been made in the site plan Exhibit P-18 as to the party who was found in possession of the land in dispute. Virendra Singh, the patwari of the area concerned, has been examined as PW-3, who proved Exhibit P-9, the map of land bearing khasra No. 224, Exhibit P-10, jamabandi of Samvat 2051-54, and Exhibit P-11, khasra girdawari. He admitted that he gave these documents to the Investigating Officer but his statement on the question of possession is very vague. He denies the fact about exchange of land between the parties in the year 1969 for want of knowledge and also denies the knowledge about fact of revenue litigation between the parties with regard to this land. But the defence has tried to controvert this fact by contending that the land of a person belonging to Scheduled Caste could not have been transferred even in exchange to a person not belonging to that caste. Revenue litigation also took place between the parties with regard to this land. But the defence has tried to controvert this fact by contending that the land of a person belonging to Scheduled Caste could not have been transferred even in exchange to a person not belonging to that caste. Revenue litigation also took place between the parties with regard to this land. In fact, an application was filed by the appellants under Section 391 of the Cr.P.C. to bring on record of the appeal order dated 29.5.2004 of Sub-Divisional Officer, Ramgarh, District Alwar, order dated 22.5.2008 of Revenue Appellate Authority, Alwar, order dated 16.6.2004 of the Revenue Appellate Authority, Alwar, order dated 21.2.2006 of the Revenue Board Rajasthan, Ajmer and order dated 27.2.2003 of the Special Judge, SC/ST (Prevention of Atrocities) Cases and Additional Sessions Judge, Alwar, but those orders may not be of any relevance for present purpose because two of these orders have been passed after the date of incident. However, what is evident is that the fact regarding possession of either of the parties over the land in dispute could not be conclusively proved. The complainant-party could not obviously claim the right of private defence though, at the same time, the evidence has also come on record that it was the complainant party which earlier in point of time reached the agriculture field and started ploughing it and thereafter accused appellants went there. They were armed with weapons and had reclaimed possession of the land. As per their claim, it was their land, which they received in exchange of another land given to accused party. It is not discernible from the evidence that all the members of the accused party were member of the unlawful assembly with the common object of murdering all or some members of the complainant party, however, on reaching the disputed agriculture field, two of the accused, as per the consistent evidence of all the prosecution witnesses, opened fire by 12 bore gun; Padam @ Padam Chand opened fire at Jaisingh @ Bhuru as a result of which he instantaneously died on the spot. Accused Sonya @ Sohan Lal also opened fire which hit Mukesh and caused grievous injury on his shoulder. It was these two accused who initiated the occurrence. PW-22 Mukesh stated that on receiving that firearm injury he became unconscious. Accused Sonya @ Sohan Lal also opened fire which hit Mukesh and caused grievous injury on his shoulder. It was these two accused who initiated the occurrence. PW-22 Mukesh stated that on receiving that firearm injury he became unconscious. Then started a free fight between the parties, which fact is discernible from the evidence on record as also from the number of injuries received by six of accused persons. On examining the injuries on the person of accused, it is found that accused appellant Kamlesh received three injuries vide Exhibit D-7. Accused Smt. Tarawati has received two injuries vide Exhibit D-8 out of which one injury was grievous fracture of middle finger of left hand. Accused Gujari has received one simple injury vide Exhibit D-9 (whose X-ray report is Exhibit D-14). Accused Jumma has received two injuries vide Exhibit D-10, out of which one is grievous fracture of metacarpal bone of both the hands. Accused Charan Singh received four simple injuries vide Exhibit D- 12, whereas accused Bhoodhar received four injuries. It is thus clear that immediately after two of the accused-appellants, namely, Padam @ Padam Chand and Sonya @ Sohan Lal opened fire, the complainant-party also retaliated and then followed a free fight between both the groups in which as many as seven persons on the side of accused-party received injuries as against six injured on the side of complainant after the death of Jaisingh @ Bhuru, Mukesh received two injuries (Exhibit P-27), one of which was found to be grievous and pallet was found in left side of his chest in his X-ray report (Exhibit P-3). Sher Singh sustained one grievous injury and one simple injury; Siyawati received one simple injury (Exhibit P-25). Ramwati received one simple (Exhibit P-26). Khemchand received two injuries (Exhibit P-28), one of which was grievous being fracture of his ring finger of right hand. Sher Singh received two injuries (Exhibit P-29), one of which was fracture of middle part of right ring finger. Mansingh also received two injuries (Exhibit P-30), both of which were found to be simple. Injuries of the members of complainant party as also of the accused-persons have been proved by PW-18 Dr. Amar Singh Rathore, the Medical Officer, who examined them all. It is thus clear that there are number of injured on both sides. 32. Mansingh also received two injuries (Exhibit P-30), both of which were found to be simple. Injuries of the members of complainant party as also of the accused-persons have been proved by PW-18 Dr. Amar Singh Rathore, the Medical Officer, who examined them all. It is thus clear that there are number of injured on both sides. 32. The prosecution witnesses, when they speak about the role of accused Padam @ Padam Chand and Sonya @ Sohan Lal, as first assailants, who, immediately on reaching the scene of occurrence, opened fire, are consistent about this version. Prosecution witnesses, who are consistent about this version, are PW-6 Ramkhiladi, PW-9 Ramjas, PW-10 Ramwati, PW-11 Siyawati, PW-12 Mansingh, PW-13 Kailash, PW-14 Nathi Singh, PW-15 Lallu, PW-16 Girraj, PW- 17 Sher Singh and PW-19 Kishore. However, some of these witnesses have also additionally assigned few of their injuries individually to some of the accused. PW-10 Ramwati has stated that accused Murti inflicted a lathi blow on her head, but she has received a simple injury on her head. PW-11 Siyawati has stated that Sheela inflicted a pharsi blow on her head, but she too has received a simple injury and no bone injury was found on her person. Sher Singh has received two injuries, one of which was grievous being fracture of middle part of the right ring finger. PW-13 Kailash has also stated that Sheela inflicted an injury on the person of Siyawati but he has not specified the weapon by which such injury was caused by her and on which part of the body of injured Siyawati. PW-14 Nathi Singh has also reiterated same thing about accused Sheela that she inflicted a 'kulhari' blow on the head of Siyawati but the injury that received by Siyawati is too superficial to admit of any such allegation. Had any blow from sharp side of 'kulhari inflicted by Sheela on the person of Siyawati, she would have definitely received incised grievous injury. PW-17 Sher Singh has specifically alleged about accused appellants Daulat and Aanya that they respectively inflicted pharsi blows on his finger and thumb and there was fracture on middle phalynx distal part of right ring finger. Had any blow from sharp side of 'kulhari inflicted by Sheela on the person of Siyawati, she would have definitely received incised grievous injury. PW-17 Sher Singh has specifically alleged about accused appellants Daulat and Aanya that they respectively inflicted pharsi blows on his finger and thumb and there was fracture on middle phalynx distal part of right ring finger. PW-19 Kishore has alleged that Siyawati was hit on her head by pharsi but has not named the accused who did so, however he stated that he received a lathi blow on his back and accused-appellant Pappu inflicted a pharsi blow on his finger. PW-9 Ramjas has categorically stated that after Padam @ Padam Chand and Sonya @ Sohan Lal opened fire, both the parties attacked each other, which clearly show that what followed thereafter was free fight between the parties. All these prosecution witnesses, when they were during cross-examination required to explain the injuries on the person of the accused, have denied having seen any such injuries received by seven accused persons. The injuries on the person of accused have thus not at all been explained by them. 33. What emerges from the evidence noticed above, is that initially specific overt act has been assigned to only two of accused appellants by use of firearms, namely, Padam @ Padam Chand and Sonya @ Sohanlal, who opened fire with 12 bore guns which hit Jaisingh @ Bhuru, who died on the spot, and Mukesh, who received a grievous injury. And then, all other injured of complainant party as well as the accused-appellants appear to have received injuries in the free fight that followed thereafter wherein each one of them tried to hit one another and resultantly, three simple injuries were received by accused Kamlesh; two injuries received by accused Tarawati, one of which was found to be a fracture of her ring finger of left hand; one simple injury received by accused Gujari; two injuries received by accused Jumma, out of which one was grievous being fracture of metacarpal bone of both the hands; one abrasion on the person of Laxmi; four simple injuries on the person of Charan Singh; four simple injuries on the person of Bhoodhar. PW-17 Sher Singh when asked to explain the injury on the person of accused, has stated that complainant-party did not cause any injury on the person of accused. PW-17 Sher Singh when asked to explain the injury on the person of accused, has stated that complainant-party did not cause any injury on the person of accused. Similarly PW-20 Khemchand who too has received a fracture of right hand, also when specifically asked to explain the injuries on the person of accused, has stated that he has not seen any injury on the person of accused Jumma, Bhoodhar, Charansingh, Kamlesh, Gujari, Laxmi, Tarawati. He has denied that members of the complainant party were armed with lathis and pharsis and caused any injury on the person of members of accused party. Thus, prosecution witnesses have also by their conduct rendered themselves unreliable in respect of allegation against individual accused for causing injury on their body. Curiously, most of the witnesses while being consistent as regards allegation against accused Padam @ Padam Chand and Sonya @ Sohan Lal for causing firearm injuries on the person of Jaisingh @ Bhuru and Mukesh, respectively, have not corroborated each other when they make allegation of causing injuries individually against one or the other accused. 34. We may now, in the setting of facts of this case, notice some of the precedents on this subject. 35. The Supreme Court in Boddella Babul Reddy v. Public Prosecutor, High Court of Andhra Pradesh, (2010) 3 SCC 648 , held that the injuries on the accused are required to be explained where evidence consists of interested and inimical witnesses and where defence alleges a version which competes in probability with that of prosecution. Non-explanation of grievous injuries sustained by some accused created a doubt about prosecution version. In so holding, their Lordships of the Supreme Court relied on the judgment in Rant Sunder Yadav v. State of Bihar, (1998) 7 SCC 365 , wherein it was held by the Supreme Court that though in all the cases, the prosecution was not obliged to explain the injuries, the prosecution has to however explain the injuries on the accused, where the evidence consists of interested and inimical witnesses and where defence alleges a version which competes in probability with that of the prosecution. This creates suspicion about the credibility of the prosecution witnesses. 36. This creates suspicion about the credibility of the prosecution witnesses. 36. In State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106 , the evidence established that accused sustained two injuries which were visible yet the witnesses stated that they had not seen any injury on the person of the accused, the Supreme Court held that in the circumstances, witnesses were not giving true version and trying to suppress part played by some of them which resulted in causing injuries to the accused. Their testimony was therefore rightly not relied by the High Court. 37. Judgment cited by the learned Public Prosecutor in Bankey Lal's case (supra), cannot therefore be applied to the facts of the present case which is distinguishable being rendered in a different facts situation because what was held in that case was that simply because the prosecution did not explain injuries of some of the accused, the Court cannot discredit the entire prosecution evidence. In the present case, we are also not persuaded to discard the entire prosecution case but only to that extent of that version of some of the injured witnesses, who have attributed their individual injuries to some of the individual accused except PW-20 Mukesh, whose statement about firearm injury has been corroborated by all other prosecution witnesses, who have also consistently spoken about the role of accused-appellant Padam @ Padam Chand for murder of deceased Jaisingh @ Bhuru. 38. The Supreme Court in Boota Singh and others v. State of Punjab, (1997) SCC (Cri) 904 , was dealing with a case where initially the occurrence started by one accused giving a 'gandasa' blow on the head of deceased resulting into his death was followed by free fight. The Supreme Court upheld his conviction under Section 302 of the I.P.C. simplicitor and held that for rest of the accused it could not be said that they shared the common intention to cause death, therefore, their conviction under Section 302/34 of the I.P.C. must be set aside. 39. In State of Haryana v. Chandvir and others, (1996) 8 SCC 678 , which was a case where injuries suffered by some of the accused in some transaction were not explained by the prosecution, the incident was held to be a free fight and in the circumstances it was held that liability of each accused has to be considered independently. In State of Haryana v. Chandvir and others, (1996) 8 SCC 678 , which was a case where injuries suffered by some of the accused in some transaction were not explained by the prosecution, the incident was held to be a free fight and in the circumstances it was held that liability of each accused has to be considered independently. The Supreme Court further held that on facts neither Section 34 nor 149 of the Cr.P.C. can be applied to any of the accused and that the principle falsus in uno falsus in omnibus' has no application to a criminal trial. 40. In Dwarka Prasad v. State of U.P., (1993) Supp 3 SCC 141 , it was held by the Supreme Court that a free fight is that when both the sides mean to fight a pitched battle. 41. The question as to who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival party. In such cases of mutual fights, both sides can be convicted for their individual acts. The right of private defence is not available to either party in a case of free fight. Therefore, except for individual acts of two of the accused-appellants, it was a case of free fight. The evidence that has consistently emerged on the record by way of statements of prosecution witnesses is that initial assault was launched by two accused, namely, Padam @ Padam Chand and Sonya @ Sohan Lal respectively by opening fire at Jaisingh @ Bhuru and Mukesh; while Jaisingh @ Bhuru died on the spot instantaneously, Mukesh received a grievous hurt. It is therefore individual act of these two accused for which they have been, in our considered view, rightly held responsible for committing offence under Sections 302 and 307 I.P.C. simplicitor, respectively. What followed thereafter was a free fight where each party on either side must be held responsible for causing injuries individually on the person of each other members of the opposite side. What followed thereafter was a free fight where each party on either side must be held responsible for causing injuries individually on the person of each other members of the opposite side. Since, however, the prosecution witnesses in present case individually assigned specific overt act against few accused but their version has not been corroborated by other prosecution witnesses and at the same time they have denied having caused any injuries to seven accused persons, two of whom received grievous injuries and have also denied having seen the accused appellant receive any such injury on their person, those witnesses cannot be considered reliable even in respect of allegation against accused for their individual injury. To that extent, their testimony is liable to be discarded. Accused-appellants are thus found entitled to benefit of doubt as regards injuries sustained by the members of the complainant-party. 42. Coming now to the conviction of accused-appellant Padam @ Padam Chand tinder Section 302 I.P.C., and accused appellant Sonya @ Sohanlal for offence under Section 307 I.P.C., we find that the evidence of all prosecution witnesses, namely, PW-6 Ramkhiladi, PW-9 Ramjas, PW-10 Ramwati, PW-11 Siyawati, PW-12 Mansingh, PW-13 Kailash, PW-14 Nathi Singh, PW-15 Lallu, PW-16 Girraj, PW-17 Sher Singh and PW-19 Kishore, is consistent that it were these two accused persons who had launched the initial attack and opened fire. Contention that injured PW-22 Mukesh had received simple injury, cannot by itself is a reason to hold that accused Sonya @ Sohan Lal did not commit any offence of attempt to commit murder under Section 307 I.P.C. Law is settled on the question that in order to justify conviction under Section 307 of the I.P.C., it is not necessary that bodily injury capable of causing death should have been inflicted. An attempt in order to be criminal need not be the penultimate act fore-boding death. It is sufficient in law if there is present an intent coupled with an overt act in execution thereof, such act being proximate to the crime intended and if the attempt has gone so far that it would have been complete but for the extraneous intervention which frustrated its consummation. What is material to attract the offence of Section 307 I.P.C. is the guilt of intention and knowledge with which the attempt was made. What is material to attract the offence of Section 307 I.P.C. is the guilt of intention and knowledge with which the attempt was made. The intention and the knowledge are matters of inference from totality of the circumstances and cannot be measured merely from results. 43. The Supreme Court in Sagayam v. State of Karnataka, (2000) 4 SCC 454 , in Para 6 of the judgment held as under: "6. To justify conviction under this Section under Section 307 I.P.C., it is not essential that bodily injury capable of causing death should have been inflicted. An attempt in order to be criminal need not be the penultimate act fore boding death. It is sufficient in-law if there is present an intent coupled with some overt act in execution thereof, such act being proximate to the crime intended and if the attempt has gone so far that it would have been complete but for the extraneous intervention which frustrated its consummation. There are different stages in a crime. First intention to commit it; second preparation to commit it; third, an attempt to commit it. If at the third stage, the attempt falls, the crime is not complete but law punishes for attempting the same. An attempt to commit crime must be distinguished from an intent to commit it or preparation of its commission." 44. In the facts and circumstances of the present case, it is evident that accused-appellant Sonya @ Sohan Lal had come armed with 12-bore gun with another accused Padam @ Padam Chand, who too was armed with same weapon and both of them immediately on reaching the agriculture field opened fire at the members of the complainant party. While Jaisingh @ Bhuru died instantaneously, the fire opened by accused Sonya @ Sohan Lal hit injured Mukesh on his shoulder. That however does not mean that it should not be held to be an attempt to murder only because injury received thereby was simple in nature. It was indeed a providential escape for this injured because despite firearm being aimed, it did not hit his head/chest but on the shoulder. But this cannot be a reason to hold that attempt was not made on the life of injured Mukesh by the accused. His conviction under Section 307 of the I.P.C. cannot therefore be faulted. It was indeed a providential escape for this injured because despite firearm being aimed, it did not hit his head/chest but on the shoulder. But this cannot be a reason to hold that attempt was not made on the life of injured Mukesh by the accused. His conviction under Section 307 of the I.P.C. cannot therefore be faulted. Sentence awarded to both the accused under Sections 302 I.P.C. and 3/25 Arms Act and 307 I.P.C. and 3/25 Arms Act thus does not deserve to be interfered with. However, in view of our finding on the question of possession, their conviction under Section 447 I.P.C. deserves to be set aside. In the light of discussion made above, their conviction under Sections 325/149, 324/149, 323/149 and-148 I.P.C. also cannot be sustained. 45. However in view of our above conclusion, conviction of accused-appellants, namely, Pappu under Sections 326, 302/149, 307/149, 148, 324/149, 323/149 I.P.C., Polya, Jumma, Lallu, Aanya @ Anandi Lai, Daulat, Kamlesh, Laxmi, Tarawati, Murti, Gujari and Sheela for offence under Sections 302/149, 307/149, 326/149, 148, 324/149, 323/149 and also under Section 447 of the I.P.C., as regards the criminal trespass discussed above, cannot be sustained. 46. In the result, appeal filed by accused-appellants, namely, Padam @ Padam Chand and Sonya @ Sohan Lal succeeds in part to the extent indicated above, whereas the appeal filed by other accused-appellants, namely, Polya, Jumma, Pappu, Lallu, Aanya @ Anandi Lai, Daulat, Kamlesh, Laxmi, Tarawati, Murti, Gujari and Sheela succeeds in tote. 47. Conviction and sentence "awarded to accused-appellants Padam @ Padam Chand under Sections 302 I.P.C. and 3/25 of the Arms Act and Sonya @ Sohan Lai under Section 307 I.P.C. and under Section 3/25 of the Arms Act is maintained. Their conviction for offences under Sections 148, 302/149, 307/149, 326/149, 324/149, 323/149, 447 of the I.P.C. is however set aside. Accused-appellant Sonya @ Sohan Lal, whose sentence was suspended vide order dated 28.1.2004 by a coordinate bench of this Court in D.B. Criminal Miscellaneous Bail (Suspension of Sentence) Application No. 1836/2003, is directed to surrender himself before the trial Court within a month to serve the remaining sentence. In case he fails to surrender himself before the trial Court, then the trial Court shall ensure his arrest and that he serves out the remaining sentence of imprisonment. 48. In case he fails to surrender himself before the trial Court, then the trial Court shall ensure his arrest and that he serves out the remaining sentence of imprisonment. 48. Conviction of accused-appellant Pappu for offence under Sections 302/149, 148, 307/149, 326, 324/149, 323/149 and 447 I.P.C., is set aside. He is acquitted of all the charges. Conviction of accused-appellants, namely, Polya, Jumma, Lallu, Aanya @ Anandi Lal, Daulat, Kamlesh, Laxmi, Tarawati, Murti, Gujari and Sheela under Sections 302/149, 148, 307/149, 326/149, 324/149, 323/149, 447 of the LP.C. is also set aside. They are acquitted of all the charges. 49. Accused-appellants, namely, Polya, Jumma, Pappu, Lallu, Aanya @ Anandi Lai, Daulat, Smt. Kamlesh, Smt. Laxmi, Smt. Tarawati, Smt. Murti, Smt. Gujari and Smt. Sheela, are on bail. Their bail bonds and sureties are discharged. However, keeping in view the provisions of Section 437A of the Code of Criminal Procedure, each of these appellants are directed to forthwith furnish a personal bond in the stun of Rs. 20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months. In the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Supreme Court. 50. Appeal accordingly stands disposed of.Appeal partly allowed. *******