JUDGMENT 1. - D.B. Criminal Appeal No. 1099/2006 has been preferred by four persons namely Chiranji S/o. Maddu Ji, Ramesh S/o. Sampat Lal, Suresh S/o. Sampat Lal and Latoor S/o. Maddhu Ji. They all are residents of Village Kundera, Sawai Madhopur. 2. D.B. Criminal Appeal No. 1013/2006 hate been instituted by Ganpat S/o. Maddu, and Surajmal S/o. Ramswaroop. 3. Four co-accused of the appellants, namely Ramswaroop S/o. Mishrya, Prahlad S/o. Govind, Radheyshyam S/o. Ramswaroop and Kamlesh S/o. Latoor Lal, have preferred no appeal. 4. By the Impugned judgment dated 20.9.2006, the trial court held Ramesh S/o. Sampat Lal, appellant in Appeal No. 1099/06, guilty of offence under Sections 148, 302/34, 325, 324, 323/149 and 341 IPC. 5. Appellant Chiranji S/o. Maddu Ji was held guilty of offence under Section 148, 302/34, 324, 323/149 and 341 IPC and acquitted of offence under Section 325 and 325/149 IPC. 6. Appellant Suresh S/o. Sampat Lal and Latoor S/o. Maddu Ji, were held guilty of offences under Sections 148, 302/34, 323/149 and 341 IPC. They were acquitted of offences under Section 325, 325/149 and 324 IPC. 7. Appellant Ganpat S/o Maddu, was held guilty of offence under sections 148, 324, 323/149 and 341 IPC and acquitted of offences under Sections 302/ 302/149, 325, and 325/149 IPC. 8. Appellant Surajmal S/o. Ramswaroop, was held guilty of offences under Sections 148, 325, 323/149 and 341 IPC. He was acquitted of offences under Sections 302, 302/149, 324 and 324/149 IPC. 9. Ramswaroop S/o. Mishrya, Prahlad S/o. Govind, Radheyshyam S/o. Ramswaroop and Kamlesh S/o. Latoor Lal, non-appellants, co-accused of the appellants were only convicted for the offences under Sections 148, 323/149 and 341 IPC. However, they were acquitted of offences of murder and causing grievous and simple injuries with incised weapon. The trial court released these accused on probation and hence, they have not filed any appeal. 10. Appellants before us by a separate order of even date were sentenced as under:- 11. The accused-appellant No. 1 Chiranji convicted for offence under Sections 148, 302/34, 324, 323/149 and 341 IPC was sentenced as under: Under Section 302/34 IPC : To suffer imprisonment for life and to pay fine of Rs. 10. Appellants before us by a separate order of even date were sentenced as under:- 11. The accused-appellant No. 1 Chiranji convicted for offence under Sections 148, 302/34, 324, 323/149 and 341 IPC was sentenced as under: Under Section 302/34 IPC : To suffer imprisonment for life and to pay fine of Rs. 1000/-, in default of payment of fine to further undergo three months' R.l. Under Section 148 IPC: To suffer one years S.l. Under Section 324 IPC: To suffer two years S.l. Under Section 323/149 IPC: To suffer six months simple imprisonment. Under Section 341 IPC: To suffer one months S.l. 12. The accused-appellant No. 2, Ramesh convicted for offences under Sections 148, 302/34, 325, 324, 323/149 and 341 IPC, was sentenced as under: Under Section 302/34 IPC: To suffer imprisonment for life and to pay fine of Rs. 1000/-, in default of payment of fine to further undergo three months R.l. Under Section 148 IPC: To suffer one years S.l. Under Section 324 IPC: To suffer two years S.l. Under Section 325 IPC : To suffer three years' S.l. and to pay fine of Rs. 500/-, in default of payment of fine to further undergo one months S.l. Under Section 323/149 IPC: To suffer six months simple imprisonment. Under Section 341 IPC : To suffer one months simple imprisonment. 13. The accused-appellant No. 3 and 4 Suresh and Latoor convicted for offences under Sections 148, 302/34, 323/149, 341 IPC were sentenced as under: Under Section 302/34 IPC: To suffer imprisonment for life and to pay fine of Rs. 1000/-, in default of payment of fine to further undergo three months' R.l. Under Section 148 IPC; To suffer one years S.l. Under section 323/149 IPC: To suffer six months simple imprisonment. Under Section 341 IPC: To suffer one months simple imprisonment. 14. The accused-appellant Ganpat who has preferred Appeal No. 1013/2006. convicted for the offences under Sections 148, 324, 323/149 and 341 IPC was sentenced as under: Under Section 324 IPC: To suffer two year's S.l. Under Section 148 IPC: To suffer one years S.l. Under Section 323/149 IPC: To suffer six months simple imprisonment. Under Section 341 IPC: To suffer one months S.l. 15. convicted for the offences under Sections 148, 324, 323/149 and 341 IPC was sentenced as under: Under Section 324 IPC: To suffer two year's S.l. Under Section 148 IPC: To suffer one years S.l. Under Section 323/149 IPC: To suffer six months simple imprisonment. Under Section 341 IPC: To suffer one months S.l. 15. The accused-appellant Surajmal who has instituted Appeal No. 1013/2006, convicted for the offences under Sections 148, 325, 323/149 and 341 IPC, was sentenced as under: Under Section 325 IPC: To suffer three years S.l. and to pay fine of Rs. 500/-, in default of payment of fine to further undergo one months S.l. Under Section 148 IPC: To suffer one years S.l. Under Section 323/149 IPC: To suffer six months simple imprisonment. Under Section 341 IPC: To suffer one months simple imprisonment. 16. The trial court held that in the present case, both the sides i.e. accused party and the complainant party had suffered injuries and a cross case was also registered against the complainant party. The trial court came to the conclusion that since it is a case of free fight, hence, each accused is responsible for his own action. The trial court further concluded that even though the complainant had named 22 (twenty-two) persons as accused in the complaint, 10 (ten) persons who were tried had participated in the occurrence. 17. State of Rajasthan has filed D.B. Criminal Appeal No. 904/2007 to assail the finding of free fight, acquittal of six persons for offence of murder and conviction of the respondents to State appeal for individual liability and awarding of lesser sentence and release of other respondents on probation. 18. Thus, in the three appeals before us, we have been called upon to determine whether the finding of free fight returned by the trial court in the facts and circumstances of the case is justifiable or not? And if so, whether conviction of four appellants Chiranji, Ramesh, Suresh and Latoor for offence of murder can be sustained? Furthermore, if we set aside finding of free fight, respondents to State appeal ought to be convicted for murder being common object of the unlawful assembly or complete right of self-defence shall extend to appellants, who have filed two separate appeals, i.e. 1099/2006 and 1013/2006, to assail their conviction and sentence. 19. Furthermore, if we set aside finding of free fight, respondents to State appeal ought to be convicted for murder being common object of the unlawful assembly or complete right of self-defence shall extend to appellants, who have filed two separate appeals, i.e. 1099/2006 and 1013/2006, to assail their conviction and sentence. 19. Besides above three appeals, seven persons namely, Prabhu Gujar S/o. Ramnarayan, Suresh @ Gendya Lal S/o. Badri, Hari Singh S/o. Lalchand, Badri Gujar S/o. Moti, Jagdish S/o. Ambalal, Girraj S/o. Nenuram and Ramsahai S/o. Nenuram, have preferred S.B. Criminal Appeal No. 1024/2006 to assail the finding of free fight. The appellants to S.B. Criminal Appeal No. 1024/2006 in cross case have also been convicted for individual role, assigned to them. We shall decide S.B. Criminal Appeal No. 1024/2006 separately, but simultaneously with the above three appeals before us. 20. The present appellants were named as accused in FIR No. 162/2005, registered at police station Kotwali, Sawai Madhopur. 21. Hari Singh (PW-1), had submitted a written report Exhibit- P/1 to Sub-Inspector Tej Singh, who in turn on 14.5.2005 at about 9:00 AM, presented the same before SHO, Police Station, Kotwali, Sawai Madhopur. The said written report when translated into English reads as under : "To SHO, Police Station, Kotwali, Sawai Madhopur. Sub: About altercation/fight and beating given. It is submitted that yesterday on 13.5.2005 at about 5:00 PM, on the old passage, I was going to my new house. On the way, near Pipal Tree, trolly of Ganpat Lal was parked. Santosh s/o. Ghanshyam Nath, Manoj s/o. Ganpat, Kamlesh s/o. Latoor, Rajendra s/o. Latoor Nath met me. They told me to accompany them to the pond as they have some work with me. I refused and came to my house. They came to my house and all the four gave me beating with fist blows. Kamlesh s/o. Latoor gave me injury with chain of cycle. Today my uncle Girraj Ji had gone to house of accused to see them reason. I refused and came to my house. They came to my house and all the four gave me beating with fist blows. Kamlesh s/o. Latoor gave me injury with chain of cycle. Today my uncle Girraj Ji had gone to house of accused to see them reason. At that time, Latoor s/o. Maddu Nath, Chiranji s/o. Maddu Nath, Sampat s/o. Maddu Nath, Ganpat s/o. Maddu Nath, Suresh and Ramesh sons of Sampat Nath, Kamlesh, Santosh sons of Ghanshyam Nath, Kamlesh and Rajendra sons of Latoor Nath, Rajesh s/o. Ramesh, Vijendra s/o. Suresh, Surja and Radheyshyam, Ramawatar, Mukesh sons of Ramswaroop Nath, Ramswaroop Nath s/o. Mishriya Nath, Ramsahay s/o. Raghunath, Shiv Prasad s/o. Raghunath, Prahlad s/o. Babu, Kamlesh s/o. Govind Nath, all residents of Kundera, Sawai Madhopur, came armed with Gandasi, Sword, Dharia, Karwari saria and lathi and encircled Girraj. Ram Sahai s/o. Nenuram, Suresh s/o. Badri, Badri s/o. Motilal, Jagdish s/o. Ambalal, Kanji s/o. Jagannath, Prabhu s/o. Ram Narayan who came there to save Ganpat were given beating by Gandasi, Karwaris and Dharias, with an intention to cause death. They have inflicted injuries on head, hands, feet, nose, throat and ears. Naresh also gave a lathi injury to me on right arm. Santosh gave an injury on my left fore-arm. Buddhi Prakash s/o. Phelu, Chauthmal s/o. Gopal, etc. intervened and saved us. They had also seen the occurrence. From there, Girraj, Suresh, Badri, Jagdish, Ramsahay and Kanji in Jeep of Bhuraji were brought to Civil Hospital, Sawai Madhopur for treatment. The report is being presented and legal action be taken." 22. A perusal of the aforesaid FIR reveals that a day before the occurrence, an incident had taken place in which complainant, Hari Singh (RW.1) was assaulted, and on the next day, on 14.5.2005, in the early hours of morning, Girraj had gone to the house of accused to lodge a protest. At that time, occurrence had taken place resulting into death of Kanji and injuries were caused to Hari Singh Gurjar (PW.1), Girraj (PW.2), Jagdish (RW.3), Prabhu (RW.4), Badri (RW.5), Suresh (RW.6) and Ram Sahai (RW.8). Thus, from the side of the complainant party, eight persons received injuries including the deceased. Equally, on the side of the accused, namely Kanchan W/o Ghanshyam, and Shanti W/o. Chiranji Lal had also received injuries in the occurrence. 23. Thus, from the side of the complainant party, eight persons received injuries including the deceased. Equally, on the side of the accused, namely Kanchan W/o Ghanshyam, and Shanti W/o. Chiranji Lal had also received injuries in the occurrence. 23. The above being stark facts we shall briefly notice the medical evidence and the statement of the eye-witnesses. 24. Dr. R.P Gupta (RW.20) on 14.5.2005 at 10.00 AM had examined Jagdish (P.W.3). There were seven injuries on his person. Injury No.1 was a lacerated wound 2 X 1/4 inch bone deep on occipital region, injury No.2 was lacerated wound 11/2 X 1/4 inch bone deep on right parietal region, injury No.3 was lacerated wound 21/2 X 1/4 inch on the right parietal region, injury No.4 was lacerated wound 1/2 X 1/4 inch bone deep on right ring finger. This injury was declared grievous. Injury No.5 was contusion and injury No.6 and 7 were abrasions. 25. Prabhu (RW.4) 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. 26. Suresh (RW.6) was also examined by the same doctor. There were six injuries on his person. Injury No.1 was a lacerated wound 2 X 1/2 inch bone deep on frontal occipital parietal region, injury No.2 was lacerated wound 11/2 X 1/4 inch bone deep on middle region of head towards mid parietal region, injury No.3 was contusion 2X1 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. 27. On the same date at 10.15 A.M., Dr. R.P Gupta (RW.20) examined Ram Sahai (P.W.8). He was having three injuries on his person. Injury No.1 was an incised wound 3 X 1/4 inch bone deep on middle forehead, injury No.2 was lacerated wound 31/2 X 114 inch bone deep on left parietal region, injury No.3 was contusion on left arm. All the injuries were declared simple. 28. There were eight injuries present on the person of Badri (P.W.5). Injury No.1 was an incised wound 3 X 1/4 inch bone deep on middle forehead, injury No.2 was lacerated wound 31/2 X 114 inch bone deep on left parietal region, injury No.3 was contusion on left arm. All the injuries were declared simple. 28. There were eight injuries present on the person of Badri (P.W.5). Injury No.1 was lacerated wound 1 X 1/4 inch bone deep on the right parietal region, injury No.2 was lacerated wound 1 X 1/4 inch bone deep on right parietal region, injury No.3 was incised wound 1 X 1/4 inch bone deep on left frontal parietal region, injury no.4 was lacerated wound 11/2 X 1/4 inch bone deep on middle parietal region, injury no.5 was lacerated would 1 X 1/4 inch bone deep on occipital region, injury no.6 was contusion1/2 X 1/2 inch on left forearm, injury No.7 was abrasion 1/4 X 1/4 inch near left arm and injury no.8 was swelling 3X2 inch on left ankle. All the injuries were found simple. 29. There were six injuries present on the person of Hari Singh (RW.1). 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, injury No.6 was haematoma swelling having dimension of 1X1 inch on middle portion of skull. 30. Dr. R.R Gupta also examined Girraj (P.W.2) at 9.25 AM. He had five injuries on his person. Injury No.1 was a lacerated wound 11/2 X 1/4 bone deep on right parietal region, injury No.2 was a lacerated wound 2 X 1/4 inch bone deep on occipital region, injury No.3 was incised wound 1 X 1/4 bone deep on upper left forearm, injury No.4 was contusion on right side of chest and injury No.5 was abrasion 1/2 X 1/2 inch on right elbow. 31. Thus, except one injury received by Jagdish (RW.3) which is a fracture of a ring finger, all injuries on the person of seven injured were declared as simple in nature. 32. Now, we shall notice the injuries suffered by the accused side. Dr. R.R Gupta (RW.20) who had examined the complainant party, also examined the accused party in respect of cross case being FIR No. 163/05, registered at the same police station. 33. 32. Now, we shall notice the injuries suffered by the accused side. Dr. R.R Gupta (RW.20) who had examined the complainant party, also examined the accused party in respect of cross case being FIR No. 163/05, registered at the same police station. 33. This witness had examined on the same day, i.e. on 14.5.2014 Latoor and found two injuries on his person. Injury No.1 was lacerated wound1/2 X 1/4 inch bone deep on right parietal region, injury No.2 was complaint of pain in the back. 34. Ramswaroop was also examined. He has suffered two abrasions on left knee and left hand. 35. Suresh had suffered four injuries. Injury No.1 was incised wound 1 X 1/4 inch bone deep on left parietal region, injury No.2 was contusion 1X1 inch behind right ear. Injuries No.3 and 4 were abrasions. 36. Kanchan W/o. Ghanshyam had one injury, i.e. lacerated wound 1 X 1/4 inch bone deep on right parietal region. 37. Shanti Devi W/o. Chiranji had suffered one lacerated wound 1 X 1/4 inch skin deep on right eye. 38. Ramesh had suffered four injuries. Injury No.1 was an abrasion with swelling 5 X 1/4 inch on left side of back, injury No.2 was lacerated wound 1/2 X 1/4 inch skin deep on the occipital region, injuries No.3 and 4 were abrasions present on left elbow and forearm respectively. 39. Chiranji had suffered seven injuries. Injury No.1 abrasion 1/4 X 1/4 inch on the back of occipital region, injury No.2 was lacerated wound1/2 X 1/4 bone deep on occipital region, injury No.3 was swelling present on right hand. Injuries No.4, 5 and 7 were abrasions and injury No.6 was a contusion on the right arm. 40. This witness had also examined Ganpat and had found three injuries on his person. Injury No.1 was 1/4 X ⅛ inch on middle finger of left hand, injury No.2 and 3 were abrasions. 41. A perusal of the injuries suffered by the accused reveal that five accused have suffered injury on their head and Shanti Devi has suffered injury on the eye. 42. First informant, Hari Singh (RW.1), deposed that on 14.5.2014 when Girraj was going to ease himself, all the ten accused encircled him and caused injuries. To save him others also reached. The accused also caused injuries to them. 42. First informant, Hari Singh (RW.1), deposed that on 14.5.2014 when Girraj was going to ease himself, all the ten accused encircled him and caused injuries. To save him others also reached. The accused also caused injuries to them. With small variation here and there other injured Girraj (RW.2), Jagdish (RW.3), Prabhu (RW.4), Badri (RW.5), Suresh (P.W.6) and Ram Sahai (RW.8) have also reiterated as what was said by Hari Singh Gurjar (RW.1). What is to be noted by us is that the witnesses have made following departures from the FIR:- (a). In the FIR, it was stated that Girraj had gone to the house of the accused to lodge a protest for the injuries caused a day earlier to Hari Singh Gurjar, whereas in the court the witnesses by shifting their stand have stated that Girraj was going to ease himself when he was caused injuries. (b). In the FIR 22 (twenty-two) persons were named as accused, but in the court witnesses have restricted the number of accused to 10 (ten) and had dropped 12 (twelve) persons named in the FIR. (c). In the FIR, complainant assigned Gandasi, Dharia, Sword and Saria to the accused, but in the court weapon sword, dharia and saria were not mentioned and witnesses deposed that all accused were armed with lathi and kulhadi. To be precise, the witnesses have assigned Kulhadi to Chiranji, Ramesh and Ganpat, whereas remaining seven accused as per witnesses, were armed with lathis. 43. The trial court in the impugned judgment held that right of self-defence in no way accrues to the accused. It came to the conclusion that it is a case of free fight. The trial court considering that there was no previous enmity between the parties, returned the following finding and the same when translated into English reads as under:- "Even though it is correct that a cross case FIR No.163/05, State v. Prabhu is also pending in the court, but due to pendency of cross case, accused cannot be granted right of self defence. It can also not be accepted that the complainant party has gone to the house of the accused and the complainant party was aggressor. It can also not be accepted that the accused in their right of self defence can cause injury to the complainant party. Both sides have suffered injuries. Therefore, it is a case of free fight. It can also not be accepted that the complainant party has gone to the house of the accused and the complainant party was aggressor. It can also not be accepted that the accused in their right of self defence can cause injury to the complainant party. Both sides have suffered injuries. Therefore, it is a case of free fight. Thus, members of both sides shall be responsible for the injuries caused by them. It is a case of individual liability." 44. The trial court further considering application under section 148 IPC, came to the conclusion that common object of the assembly was to cause injuries falling under the ambit of Section 323 IPC as all accused were armed with lathi and kulhadi. The court further held as under:- " esjs fopkj esa bl izdj.k esa lHkh eqyfteku dk lkekU; mn~ns'; e'rd dkuth dh gR;k djus dk ugha ekuk tk ldrk gSA e'rd dkuth rks >xM+s esa chp cpko djus vk;k Fkk rc mlds lkFk pkj eqyfteku jes'k] fpjath] lqjs'k o yVwj us ekjihV dh gSA izdj.k dh bu ifjfLFkfr;ksa esa eSa tkurk gwWa fd bl izdj.k esa vfHk;kstu i{k }kjk tks lk{; izLrqr dh x;h gS ml lk{; ds vk/kkj ij lHkh eqyfteku ds fo:) Hkk0na0la0 dh /kkjk 148 dk vijk/k lkfcr gSA ftl voS/k lewg ds lnL;ksa dk lkekU; mn~ns'; et:ckuk ds lkFk o e'rd ds lkFk ekjihV djus dk FkkA blfy, voS/k lewg ds lHkh lnL; Hkk0na0la0 dh /kkjk 323 ds vijk/k ds fy;s tks vizR;{k :i ls o izR;{k :i ls o vko';d :i ls ftEesnkj gks tkrs gSaA blfy, bl :i esa lHkh eqyfteku Hkk0na0la0 dh /kkjk 148 ds vkjksi esa nks"k fl) fd;s tkus ;ksX; gSaA " 45. Having held that common object of unlawful assembly was not to cause murder, but to cause simple injuries in the occurrence, and four of the accused have exceeded the common object, the trial court convicted Ramesh, Chiranji, Suresh and Latoor for offence under Section 302/34 IPC and sentenced them to life imprisonment. 46. The above findings returned by the trial court have been vehemently assailed before us by the learned counsel for the accused, the learned Public Prosecutor and the learned counsel for the complainant. 47. When we had spent our considerable time and were about to pronounce our decision, we were informed that the counsel for the accused-appellant, Surajmal, is not present in court. 47. When we had spent our considerable time and were about to pronounce our decision, we were informed that the counsel for the accused-appellant, Surajmal, is not present in court. Since Shri V.R. Bajwa counsel appearing for remaining accused, Shri N.S. Dhakad, the learned Public Prosecutor and Shri Rajesh Choudhary, the learned counsel for the complainant, had analyzed the case and we have perused the record of the case with the assistance rendered by the learned counsel for the parties, we are of the view that the case of Surajmal can also be decided along with case of other co-accused. 48. Shri V.R. Bajwa appearing for the appellants, has stated that eight persons on the side of the accused party were injured. Five of the accused have suffered injuries on the head and out of two ladies injured, one lady has suffered injury on the eye. The learned counsel has submitted that the prosecution witnesses in present case have suppressed the origin and genesis of the occurrence by not explaining injuries present on the person of the six accused and two ladies of their family. The learned counsel has further submitted that since two ladies from the family of the accused have also suffered injuries in the occurrence, there is no scope for the court, but to accept the version given by the accused that the occurrence had taken place in front of the house of the accused. It is further contended that due to an incident the day before, the occurrence wherein injuries were allegedly caused to Hari Singh (P.W.1) it was the complainant party which . was aggrieved and it is also their case in the FIR that Girraj had come to lodge the protest to the house of accused, thus, the learned counsel has submitted that Girraj had not gone alone, but with other persons also. Thus, the complainant party was aggressor; the accused, in right of their self defence, have caused injuries. 49. Per contra, Mr. N.S. Dhakad, the learned Public Prosecutor and Rajesh Choudhary, the learned counsel for the complainant, number and nature of injuries suffered by the complainant party will lead to the only inference and conclusion that the accused party was aggressor. Thus, the complainant party was aggressor; the accused, in right of their self defence, have caused injuries. 49. Per contra, Mr. N.S. Dhakad, the learned Public Prosecutor and Rajesh Choudhary, the learned counsel for the complainant, number and nature of injuries suffered by the complainant party will lead to the only inference and conclusion that the accused party was aggressor. It is stated that Girraj was going to ease himself and at that stage, accused had caused injuries to him 5 and to other members of the family as houses of complainant party are situated near to the house of accused. 50. As stated earlier, the State of Rajasthan has also preferred an appeal to assail the finding of free fight. Learned Public Prosecutor urged that all accused should be convicted for offence of murder and sentenced to life ,o imprisonment. 51. To appreciate the arguments raised and examine whether findings have been rightly returned by the trial court, we will do appraisal of the evidence. 52. It has come in evidence of Chauthmal (P.W.10) that there are about 50 houses of Nath and Gurjar community in village Kundera. It is to be noted that is accused belong to Nath community, whereas complainant party belongs to Gurjar community. A perusal of the site plan (Ex.P12) reveals that there is a kuchha passage in front of house of accused and occurrence has taken place in kuchha passage in front of house of accused. If we go from house of the, accused, and take turn towards right, houses of complainant party are so situated. Hari Singh Gurjar (P.W.1) has stated that from his house, house of Ganpat accused is about 200-300 steps away. Thus, a perusal of site plan reveals that occurrence had taken place in from of the houses of accused. 53. Version of the defence as per the suggestion given to the witnesses is that on the day of occurrence, engagement/marriage ceremony was fixed in the house of Ganpat. Their relatives had come and Hari Singh Gurjar had teased the women and thus, occurrence had taken place. Except to give suggestion to the witnesses, defence has not examined any respectable of the village i.e. Panch, Sarpanch or any other person, to lend credence to the defence version. Their relatives had come and Hari Singh Gurjar had teased the women and thus, occurrence had taken place. Except to give suggestion to the witnesses, defence has not examined any respectable of the village i.e. Panch, Sarpanch or any other person, to lend credence to the defence version. However, Hari Singh (P.W.1) in cross- examination in very first line admitted that "it is correct that relatives of Ganpat had come for doing Milani". Girraj (P.W.2) in cross-examination also admitted that "it is correct that guests had arrived in "Shadi Ka Mandap". However, he had denied the suggestion that Hari Singh had misbehaved with the women of accused party. 54. From both i.e. version of prosecution and defence it is apparent that it is not a case of previous enmity. Relations between the parties, a day before the occurrence, were normal and cordial. Dispute had arisen due to something done by Hari Singh or due to injuries caused to Hari Singh. What led to the occurrence both the parties are not stating the truth. Regarding origin and genesis of the occurrence, the Prosecution and defence have more to hide than to reveal. 55. Thus, we can safely conclude that in the occurrence, both sides i.e. complainant and accused have suffered injuries, there was no previous enmity, houses of accused and complainant are situated nearby, and as to how the occurrence had started both the parties have not come clean to the court. 56. Hari Singh (P.W.1) in his cross-examination stated that no one from the side of accused has received injury in the occurrence as they were not armed with any weapon (Muljiman ke us marpeet me koi Chapet Nahi Aai kyonki hamare pas koi hathiyar nahi tha). Badri (P.W.5) stated that it is wrong to say that they had given beating and accused had received any injury in the occurrence. However, he admitted that they were being tried in a cross case at the instance of the accused, in the above context, we shall notice what has been said by Sub-Inspector, Bachhu Singh (PW.23), Investigating Officer, in the witness box. This witness stated that "it is correct that in cross case seven persons, namely Prabhu, Hari Singh, Badri, Jagdish, Girraj, Ram Prasad, were found as accused for causing injuries. Fight had taken place in the passage. Fight was started by Gurjars. This witness stated that "it is correct that in cross case seven persons, namely Prabhu, Hari Singh, Badri, Jagdish, Girraj, Ram Prasad, were found as accused for causing injuries. Fight had taken place in the passage. Fight was started by Gurjars. On 14.5.2005 I got accused Ganpat, Chiranji, Ramesh, Shanti, Kanchan, Suresh, Ramswaroop and Latoor medically examined". 57. The trial Judge taking totality of the circumstances, had come to the conclusion that since both the sides had suffered injuries and both have not furnished any explanation, it is a case of free fight. It is true that even if from the prosecution case if right of self defence is made out, we shall grant the same to the accused and the right of self defence cannot be weighed in golden scale. 58. Taking totality of the circumstances, the finding given by the trial Judge that it is a case of free fight calls for no interference as it is apparent that in the passage due to some reason the parties came Jo blows suddenly without any pre-mediation and they had a free fight. Therefore, upholding the finding returned by the trial court, we find that there is no merit in the State Appeal and the same is liable to be dismissed. 59. In the court, Hari Singh (P.W. 1) has stated that Latoor and Suresh had caused injuries on the head of Kanji. Similar is the statement of Girraj (P.W.2) and Jagdish (RW.3) and Prabhu (P.W.4). It is to be noted that in the FIR no specific injury on the person of Kanji was attributed to any of the accused. The Investigating Officer, Bachhu Singh (P.W. 23) in court admitted that injured witnesses had told him that earlier due to nervousness they have not given correct statement "Achhe Bayan Nahi De Sake". Therefore, again the statements of the witnesses were recorded. Be that as it may, in the court all the witnesses have stated that all the four present appellants namely Chiranji, Suresh, Ramesh and Latoor have caused injuries to the deceased. Therefore, again the statements of the witnesses were recorded. Be that as it may, in the court all the witnesses have stated that all the four present appellants namely Chiranji, Suresh, Ramesh and Latoor have caused injuries to the deceased. Considering that the trial court has given a finding that common object of assembly was to cause simple injuries and Kanji had intervened and has suffered injuries inflicted by the appellants, in our view, appellants Ramesh Chiranji, Suresh and Latoor shall be guilty of offence under section 304 Pt.l IPC and not under section 302 IPC especially when in the early hours of morning, free fight had ensued, suddenly when parties came face to face with each other and came to blows. 60. Our above view is fortified by observations made by Hon'ble Apex Court in case of Jumman & Ors. v. State of Punjab [ AIR 1957 SC 469 ] , wherein their Lordships held as under "(24). In such a case where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides? We are of the view that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under Section 300, I.PC., Exception 4. (25). The matter has to be viewed in this way. It is clear that there was no pre-meditation and therefore when the contending factions met accidentally and attacked each other, the conflict resulted in a sudden fight, in the heat of passion, upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. On the finding that both the parties had arms, there was no undue advantage taken by either. Hence Exception 4 to Section 300, I.P.C., applies with the result that the offence is under Section 304 (Part I), I.P.C." 61. One of us, R.S. Chauhan, J., being party to a Division Bench of this court in Buddhi & Ors. v. State of Rajasthan [2007(1)RCC 228] relying upon Dharman v. State of Punjab [ AIR 1957 SC 324 ] held as under "13. One of us, R.S. Chauhan, J., being party to a Division Bench of this court in Buddhi & Ors. v. State of Rajasthan [2007(1)RCC 228] relying upon Dharman v. State of Punjab [ AIR 1957 SC 324 ] held as under "13. Coming to the incident that occurred with deceased Saltu we find that he sustained injuries in the course of sudden fight ensued in the field of accused party, The complainant party was also armed with deadly weapons and as many as eight accused persons received lacerated and incised wounds on the vital parts. In Dharman v. State of Punjab, AIR 1957 SC 324 the Supreme Court held that when two such contending parties, each armed with sharp edged weapons, clashed and in the course of a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner and that the case against the accused falls within Exception 4 of Section 300 of the Indian Penal Code and the accused who caused the injury was guilty under Part I of Section 304 and not under Section 302 of the Indian 5 Penal Code." 62. Therefore, we convert the conviction of accused, Chiranji, Ramesh, Suresh and Latoor, who are appellants in DB Criminal Appeal No. 1099/2006, from Section 302 to Section 304 Pt.l IPC and set aside the sentence of life imprisonment awarded upon them and modify the sentence by ordering that they shall.undergo seven years rigorous imprisonment. However, we maintain sentence awarded to them on other counts along-with sentence of fine and default clause. As ordered by trial court, sentence on all counts shall run concurrently. 63. Accused-appellant, Surajmal, in DB Criminal Appeal No.1013/06 stands 1 convicted for offence under Section 325 IPC and has been sentenced to three years simple imprisonment and a fine of Rs. 500/-, in default thereof, to undergo one months simple imprisonment. Considering the fact that occurrence has taken place in May, 2005 and a period of nine years has already elapsed and the appellant, Surajmal, has suffered pain and agony of a 2 protracted trial, we reduce the sentence awarded to him from three years simple imprisonment, to one year and six months simple imprisonment. Considering the fact that occurrence has taken place in May, 2005 and a period of nine years has already elapsed and the appellant, Surajmal, has suffered pain and agony of a 2 protracted trial, we reduce the sentence awarded to him from three years simple imprisonment, to one year and six months simple imprisonment. With this modification in the sentence awarded upon him, we uphold the sentence awarded to him for other offences under Sections 148, 323/149 and 341 IPC as ordered by the trial court; sentence awarded on all the above counts shall run concurrently. 64. The trial court has convicted the appellant, Ganpat, in DB Criminal Appeal No. 1013/06, under Section 324 IPC and has sentenced him to two years simple imprisonment. For offence under Section 148 IPC, Ganpat has been sentenced to one year simple imprisonment and for offence under Section 323/149 IPC, to six months simple Imprisonment and for offence under Section 341 IPC, to one month's simple Imprisonment. Considering sufferance of protracted trial by Ganpat, we order that he shall be released on probation for a period of one year. The appellant, Ganpat, shall furnish bonds/surety bond to the satisfaction of the trial court stating therein that he shall be of good conduct and peace for a period of one year. The trial court is further empowered to specify any other condition/conditions in the bond to be executed by Ganpat and sureties on his behalf for undergoing probation. 65. With the above modification in offence and sentence, DB Criminal Appeal No. 1099/06 preferred by Chiranji, Ramesh, Suresh and Latoor, and DB Criminal Appeal No.1013/06 preferred by Ganpat and Surajmal stand disposed of. DB Criminal Appeal No.904/2007, preferred by the State of Rajasthan being devoid of merit is dismissed.Appeals of accused partly allowed. *******