JUDGMENT 1. - Appellants viz., (i) Prabhu Gurjar, (ii) Suresh @ Gendya (iii) Hari Singh, (iv) Badri Gurjar (v) Jagdish, (vi) Girraj and (vii) Ramsahay, all seven in number, are facing trial in a cross-case at the instance of the complainant - Ganpat, who hod lodged written-complaint (Exhibit-P/9), leading to registration of First Information Report bearing No.163/2005 (Exhibit-P/10) at Police Station, Kotwali, Sawai Madhopur. The complainant Ganpat along with other injured were tried for causing injuries to present accused-appellants and also for murder of one - Kanji, a relation of the appellants. 2. Vide a separate order of even date, we have decided three appeals (i) D.B. Criminal Appeal bearing Nos.1099/2006 (Chiranji & Others v. State of Rajasthan) , (ii) D.B. Criminal Appeal No.1013/2006 (Ganpat & Another v. State of Rajasthan) and (iii) D.B. Criminal Appeal No.904/2007 (State of Rajasthan v. Ramswaroop and Others) respectively. 3. Since the present appeal has arisen out of cross version, we proceed to decide the same separately, but simultaneously with the above mentioned appeals to avoid emergence of conflicting findings in parallel proceeding. 4. However, we have confined ourselves to the evidence, which has been led in the trial against the appellants. Hence, for deciding the present appeal, we have proceeded to do appraisal of the evidence given in trial against the appellants, uninfluenced by the evidence given by the appellants in the case in which complainant-party was tried, convicted and sentenced. 5. All the seven appellants have preferred the present appeal to assail the judgment dated 20.09.2006, whereby the trial Court has convicted appellant No.6, namely Girraj for offences punishable under Sections 324, 323/149, 341 and 148 of Indian Penal Code for causing injury with an incised weapon on the head of Suresh (PW-4). Remaining six appellants, namely (i) Prabhu Gurjar, (ii) Suresh @ Gendya, (iii) Hari Singh, (iv) Badri Gurjar, (v) Jagdish and (vii) Ramsahay have been convicted for offences punishable under Sections 148, 323/149 and 341 of Indian Penal Code. 6. The trial Court, vide a separate order of even date, sentenced appellant No.6, namely Girraj as under:- "For offence under Section 324 I.P.C., appellant - Girraj was sentenced to undergo two years simple imprisonment and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo one month simple imprisonment. 6. The trial Court, vide a separate order of even date, sentenced appellant No.6, namely Girraj as under:- "For offence under Section 324 I.P.C., appellant - Girraj was sentenced to undergo two years simple imprisonment and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo one month simple imprisonment. For offence under Section 323/149 I.P.C., appellant - Girraj was sentenced to undergo six months simple imprisonment. For offence under Section 341 I.P.C., appellant - Girraj was sentenced to undergo one month simple imprisonment. For offence under Section 148 I.P.C., appellant - Girraj was sentenced to undergo one year simple imprisonment." All the sentences were ordered to run concurrently. 7. So far as remaining six appellants are concerned, having convicted them for offences punishable under Sections 148, 323/149 and 341 of Indian Penal Code, the trial Court had released them on probation for a period of one year under Section 4 of the Probation of Offender's Act. 8. We have been informed that the period of probation of the six appellants is already over. 9. In the present case, written-report [Exhibit-P/9] was submitted by Ganpat (PW-2) before Sub-Inspector Bachhu Singh (PW-15) at Police Station, Kotwali, Sawaimadhopur. 10. In the written-complaint, Ganpat (PW-2) stated that on 14.05.2005 at about 06:00 A.M. he was taking tea with his family members, namely Smt. Shanti, Suresh, Chiranji, Latoor, Ramesh and Kanchan. In the meanwhile, all the present appellants, along with Kanji Gurjar armed with lathi, danda, kulhari and gandasi came and trespassed into the house of the complainant and caused injuries. Badri gave gandasi blow on the head of Chiranji. Appellant - Ramsahay gave injury with kulhari on the head of Ganpat, and they also caused injuries to Smt. Shanti, Smt. Kanchan, Suresh, Latoor and Ramesh. 11. In the present case, on the side of the complainant party, Ganpat (PW-2), Chiranji (PW-3), Ramesh (PW-5), Shanti (PW-17) wife of Chiranji, Kanchan (PW-16) wife of Ghanshyam, Suresh (PW-4), Ramswaroop (PW-7) and Latoor (PW-6) had suffered injuries. 12. As stated earlier, all these seven appellants had also suffered injuries. Complainant-party and the accused were examined by Dr. R.P. Gupta (PW-1). 13. This witness on 14.5.2005 at 10.00 AM had examined Jagdish, accused. There were seven injuries on his person. 12. As stated earlier, all these seven appellants had also suffered injuries. Complainant-party and the accused were examined by Dr. R.P. Gupta (PW-1). 13. This witness on 14.5.2005 at 10.00 AM had examined Jagdish, accused. There were seven injuries on his person. Injury No.1 was a lacerated wound 2 x ¼ inch bone deep on occipital region; injury No.2 was lacerated wound 1= x ¼ inch bone deep on right parietal region; injury No.3 was lacerated wound 2= x ¼ inch on the right parietal region; injujry No.4 was lacerated wound ½ x ¼ inch bone deep on right ring finger. This injury was declared grievous; injury No.5 was contusion; injury No.6 and 7 were abrasions. 14. Prabhu, appellant was examined by the same doctor on the same date at 10.10 AM. On his person one abrasion along with swelling on the left forearm was found. 15. Suresh, appellant was also examined by the same doctor. There were six injuries on his person. Injury No.1 was a lacerated wound 2 x ½ inch bone deep on frontal occipital parietal region; injury No.2 was lacerated wound 1= x ¼ inch bone deep on middle region of head towards mid parietal region; injury No.3 was contusion 2 x 1 inch on left elbow; injury No.4 was swelling on left foot; injury Nos.5 and 6 were abrasions. All injuries were declared as simple. 16. On the same date at 10.15 A.M., Dr. R.P. Gupta (P.W.1) examined appellant Ram Sahay. He was having three injuries on his person. Injury No.1 was an incised wound 3 x ¼ inch bone deep on middle forehead; injury No.2 was lacerated wound 3= x ¼ inch bone deep on left parietal region; injury No.3 was contusion on left arm. All the injuries were declared simple. 17. There were eight injuries present on the person of appellant Badri. Injury No.1 was an incised wound 3 x ¼ inch bone deep on middle forehead; injury No.2 was lacerated wound 3= x ¼ inch bone deep on left parietal region; injury No.3 was contusion on left arm. All the injuries were declared simple. 17. There were eight injuries present on the person of appellant Badri. Injury No.1 was lacerated wound 1 x ¼ inch bone deep on the right parietal region; injury No.2 was lacerated wound 1 x ¼ inch bone deep on right parietal region; injury No.3 was incised wound 1 x ¼ inch bone deep on left frontal parietal region; injury no.4 was lacerated wound ½ x ¼ inch bone deep on middle parietal region; injury no.5 was lacerated would 1 x ¼ inch bone deep on occipital region; injury no.6 was contusion ½ x ½ inchon left forearm; injury No.7 was abrasion ¼ x ¼ inch near left arm; injury no.8 was swelling 3x2 inch on left ankle. All the injuries were found simple. There were six injuries present on the person of appellant Hari Singh. He was examined by the same doctor on the same day at 10.25 AM. Injury No.1 was contusion 3x1 inch on right arm; injuries Nos.2, 3 and 4 were abrasion on shoulder, left and right knee respectively. Injury No.5 was contusion on forehead; injujry No.6 was hamatoma swelling having dimension of 1x1 inch on middle portion of skull. 18. Dr. R.P. Gupta also examined Girraj, appellant at 9.25 AM. He had five injuries on his person. Injury No.1 was a lacerated wound 1½ x ¼ bone deep on right parietal region; injury No.2 was a lacerated wound 2 x ¼ inch bone deep on occipital region; injury No.3 was incised wound 1 x ¼ bone deep on upper left forearm; injury No.4 was contusion on right side of chest; injury No.5 was abrasion ½ x ½ inch on right elbow. 19. Thus, except one injury received by appellant Jagdish which is a fracture of a ring finger, all injuries on the person of seven accused were declared as simple in nature. 20. Now, we shall notice the injuries suffered by the witnesses. Dr. R.P. Gupta (P.W.1) who had examined the accused, also examined the complainant party i.e. witnesses. 21. This witness had examined on the same day, i.e. on 14.5.2014 Latoor (PW-6) and found two injuries on his person. 20. Now, we shall notice the injuries suffered by the witnesses. Dr. R.P. Gupta (P.W.1) who had examined the accused, also examined the complainant party i.e. witnesses. 21. This witness had examined on the same day, i.e. on 14.5.2014 Latoor (PW-6) and found two injuries on his person. Injury No.1 was lacerated wound ½ x ¼ inch bone deep on right parietal region; injury No.2 was complain of pain in the back. 22. Ramswaroop (PW-7) was also examined. He had suffered two abrasion on left knee and left hand. 23. Suresh (PW-4) had suffered four injuries. Injury No.1 was incised wound 1 x ⅓ inch bone deep on left parietal region; injury No.2 was contusion 1x1 inch behind right ear. Injuries No.3 and 4 were abrasions. 24. Kanchan (PW-16) w/o. Ghanshyam had one injury on her person i.e. lacerated wound 1 x ¼ inch bone deep on right parietal region. 25. Shanti Devi (PW-17) w/o. Chiranji had suffered one lacerated wound 1 x ¼ inch skin deep on right eye. 26. Ramesh (PW-5) had suffered four injuries. Injury No.1 was an abrasion with swelling 5 x ¼ inch on left side of back; injury No.2 was lacerated wound ½ x ¼ inch skin deep on the occipital region; injuries No.3 and 4 were abrasions present on left elbow and forearm respectively. 27. Chiranji (PW-3) had suffered seven injuries. Injury No.1 abrasion ¼ x ¼ inch on the back of occipital region; injury No.2 was lacerated wound ½ x ¼ bone deep on occipital region; injury No.3 was swelling present on right hand. Injuries No.4, 5 and 7 were abrasion; injury No.6 was a contusion on the right arm. 28. This witness had also examined Ganpat (PW-2) and had found three injuries on his person. Injury No.1 was ¼ x ⅛ inch on middle finger of left hand; injury No.2 and 3 were abrasions. 29. A serious dispute arose before the trial Court as to which party, whether accused or complainant-party was aggressor? The trial Court denied the right of private defence to both the parties and came to a conclusion that it is a case of free fight. 30. Mr. 29. A serious dispute arose before the trial Court as to which party, whether accused or complainant-party was aggressor? The trial Court denied the right of private defence to both the parties and came to a conclusion that it is a case of free fight. 30. Mr. Rajesh Choudhary, the learned counsel appearing for the accused-appellants, has submitted that the complainantparty is being tried for commission of offence punishable under Section 302 of Indian Penal Code in a case arising out of First Information Report bearing No.162/2005, whereas impugned First Information Report bearing No.163/2005 against present appellants was registered subsequently. 31. Prosecution had examined as many as seventeen witnesses. 32. Beside injured witnesses, Surajmal and Prahlad have also stepped into witness box as eye-witnesses. 33. Ganpat appearing as PW-2 had given description of injuries caused by accused. In cross-examination, Ganpat denied that in the occurrence due to injuries caused by them Kanji had died. 34. Chiranji (PW-2) also stated that all the accused came into their house and caused injuries. However, in the cross-examination, he stated that they are being tried in a false case. 35. Suresh (PW-4) has also stated that accused came and caused injuries. To the similar effect are the statements made by Remesh (PW-5) and Latoor (PW-6). However, Ramswarrop (PW-7), Radheyshyam (PW-8), Kamlesh (PW-9) and Prahlad (PW-11) have turned hostile and have not supported the prosecution case. 36. Surajmal (PW-10) deposed that in the occurrence " gM+dEi ep x;kA " (melee) and who had caused injury to whom is not known. 37. In the present case, witnesses have not explained injuries on the person of accused. Both the sides have not come clean to the Court, and have suppressed the origin and genesis of the occurrence. Therefore, the trial Court has rightly held that both the sides sustained injuries in the occurrence and it is a case of free fight. Thus, each accused will be responsible for the individual liability. 38. Having gone through the entire record and the evidence of the witnesses, we find that the finding returned by the trial Court suffers from no infirmity, and is just and proper in the facts and circumstances of the present case. 39. Thus, each accused will be responsible for the individual liability. 38. Having gone through the entire record and the evidence of the witnesses, we find that the finding returned by the trial Court suffers from no infirmity, and is just and proper in the facts and circumstances of the present case. 39. Counsel appearing for the accused-appellants, in the alternative, has submitted that the occurrence pertains to May, 2005 and the appellant No.6 - Girraj has been convicted and awarded sentence of two years simple imprisonment for commission of offence under Section 324 of Indian Penal Code. It is contended by the learned counsel that the appellant has already suffered pain and agony of a protracted trial. 40. Thus, counsel appearing for the appellants, submitted that the appellant No.6 - Girraj should have also been granted the benefit of probation by the trial Court as the other co-accused have already been granted benefit of probation. 41. We find merit in the alternative submission advanced by the learned counsel appearing for the appellants. 42. Considering that the appellant No.6 - Girraj is in the corridor of the Courts for last nine-years, and the fact that the trial Court has given a finding that it is a case of free fight, we are of the view that the ends of justice will be fully met, in case appellant No.6 - Girraj is also granted the benefit of probation under Section 4 of the Probation of the Offender's Act. 43. Consequently, we order that the appellant No.6, namely Girraj shall be released on probation for a period of one-year on furnishing a personal bond and bonds by the sureties to the satisfaction of the trial Court. It shall be specified in the bond to be furnished by the appellant No.6 - Girraj and his sureties that the appellant shall maintain good conduct and be of peace during the period of probation. The trial Court is further empowered to incorporate any other condition/conditions, which it deems appropriate in the facts and circumstances of the present case in the bonds to be furnished by appellant - Girraj and his sureties. 44. Therefore, while upholding the finding of free fight and the conviction of all the appellants, we dispose of the appeal by setting aside the sentence awarded upon appellant No.6, namely Girraj by releasing him on probation in the terms noted herein above.Appeal Disposed of. 44. Therefore, while upholding the finding of free fight and the conviction of all the appellants, we dispose of the appeal by setting aside the sentence awarded upon appellant No.6, namely Girraj by releasing him on probation in the terms noted herein above.Appeal Disposed of. *******