JUDGMENT Pradip Kumar Mohanty, CJ. (C.A.V.) - All the appellants, except appellant no. 6 Bibiyani Tigga, stood convicted for committing the offence under Sections 302/34 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. Further appellant nos. 1, 2, 3 and 6 stood convicted for committing the offence under Section 324/34 of the Indian Penal Code and have been sentenced to undergo R.I. for two years. However, both the sentences were directed to run concurrently. The aforesaid judgment of conviction and order of sentence has been passed by the Additional District & Sessions Judge, Fast Track Court No. I, Gumla vide order dated 27.03.2004 and 29.03.2004 respectively, in Sessions Trial No. 90 of 1996, (arising out of Chainpur P.S. Case No. 34 of 1995, corresponding to G.R. No. 803 of 1995). 2. A first information was lodged on the basis of the fardbeyan of the informant Balasius Kujur on 10.11.1995 stating therein that in the evening of 09.11.1995 he, along with Theodar Toppo and Albert Ekka came to his house from the Chainpur weekly market. On the next day, i.e. 10.11.195 at about 8 A.M. Bhikhu Rawatia of Pakri Toli came to his house and informed that Irniyus Tigga and another are harvesting his paddy crop armed with various weapon. On getting this information, he, along with Rafail Kujur, Saniyaro Kujur, Arun Kujur, Ilisaba Kujur went to Dumor Don to stop them. When they reached there they saw that Irnius Tigga, Nicolas Tigga, Johan Tigga, Bibiyani Tigga, Manjela Tigga, Jinu Tigga, Ajit Tigga and Apolina Tigga were cutting the crop of plot nos. 609, 610 and 611 under Khata No. 32. The informant and others tried to stop them from harvesting the crops from a distance but the accused persons rushed to them, variously armed with Gulel, Danda, Barcha, Tangi, Balua, Sickle, Bow and Arrow and at first Nicolas Tigga assaulted on the head of the informant with the handle of Barcha due to which he fell down. Then Irniyus Tigga assaulted with Lathi on his right hand, Jinu Tigga assaulted with sickle on his right ear and mouth due to which his one teeth got broken and he received cut injury on his ear. In the meantime, Bibiyani Tigga assaulted on the head of the informant with Tangi. Thereafter, all the accused persons started assaulting Rafail, Arun, Michel and Albert. In the meantime, Bibiyani Tigga assaulted on the head of the informant with Tangi. Thereafter, all the accused persons started assaulting Rafail, Arun, Michel and Albert. Meanwhile the wife of the informant Iliasaba Kujur and one Etwa Kumhar started taking him towards Pakri Toli and they all had seen Nocolas Tigga and Irnius Tigga assaulting Albert Ekka with Danda due to which he fell down then Jinu Tigga assaulted on his head with Tangi as a result of which he became unconscious. On hearing hulla many villagers assembled there and saved them. The informant saw that blood was oozing from the head of Rafail Kujur and there was injury below his right knee and left wrist. Arun Kujur received injuries below his left knee and back as well as cut injury on his head. Michal Tigga received cut injury on his head and injuries on his left little finger, back and waist. It is alleged that the accused persons, with the intention to kill the informant and his family members, assaulted with Gulel, Lathi, Barcha, Tangi, bow and arrow, Balua and Hasua and made them injured. 3. On the aforementioned written report, Chainpur P.S. Case No. 34 of 1995, corresponding to G.R. No. 803/1995, was registered against the accused persons. 4. After completion of investigation, charge sheet was filed in the Court and the cognizance was taken. After complying all the provisions, the case was committed to the Court of Sessions for trial. 5. The charges were framed against the appellants under Sections 147, 149, 307, 302 of the Indian Penal Code and they were put on trial as they pleaded not guilty. 6. The prosecution, in order to prove its case, examined altogether eleven prosecution witnesses and also exhibited several documents. PW1 Ilisaba Kujur is the wife of the informant. PW2 is Saniyaro Kujur, PW3 is Rafail Kujur, PW4 is Godlin Bara, PW5 is Md. Jamruddin Khan, PW6 is Md. Hasmat Khan, PW7 is Michal Tigga, PW8 is Dr. T.J. Minz, PW9 Balasius Kujur is the informant of the case, PW10 is Jyoti tigga and PW11 is Dr. Gyan Prakash. 7. After closure of the evidence of the prosecution, statement of the accused was recorded under section 313 of the Code of Criminal Procedure, 1973. The defence also examined one witness DW1 Vijay Bhushan Sai, who is an Advocates'' Clerk. He proved four rent receipts. 8. Gyan Prakash. 7. After closure of the evidence of the prosecution, statement of the accused was recorded under section 313 of the Code of Criminal Procedure, 1973. The defence also examined one witness DW1 Vijay Bhushan Sai, who is an Advocates'' Clerk. He proved four rent receipts. 8. After analyzing the evidence and after hearing the arguments, the trial court vide its judgment dated 27.03.2004 convicted all the appellants/accused except appellant no. 6 Bibiyani Tigga, for the offence punishable under Section 302/34 of the Indian Penal Code and vide order dated 29.03.2004 sentenced them to undergo imprisonment for life. Appellant nos. 1, 2, 3 and 6 were further convicted for the offence under Section 34 of the Indian Penal Code and were sentenced to undergo R.I. for two years. 9. The defence has also exhibited the following documents: (i) Rent receipts Ext.AA/3; (ii) Plaint of Revenue Suit under section 87 of the C.N.T. Act, Ext. B; (iii) Certified copy of the R.S. record of right of Khata No. 31, Ext.C (iv) Order dated 14.12.1994 in Misc. Case No. 939/94, passed by SDO, Gumla, Ext. D; (v) Order dated 11.08.2000 of Complaint Case No,. 124/95, passed by the then learned J.M. 1st Class, Ext. E; (vi) Judgment of Complaint Case No. 5/95, Ext. F; (vii) FIR of G.R. Case No. 804/95, Ext. G; (viii) Injury reports of Irniyus Tigga, Elegenius Tigga, Nicolas Tigga and Ajit Tigga; Ext.HH/3; (ix) Certified copy of deposition of Dr. Gyan Prakash (PW10) in S.T. No. 2/1997; Ext. I; (x) Order of the Deputy Commissioner, Gumla in Mutation Revision No. 55-R-15/2002-03, Ext. J ; and (xi) Order dated 18.11.2003 of the same court in same case, Ext. K. 10. Being aggrieved by the said judgment of conviction and order of sentence awarded to the appellants, the appellants have preferred the instant appeal. 11. We have heard learned counsel appearing for the appellant and learned Addl. Public Prosecutor appearing for the State . 12. Learned counsel appearing for the appellants submits that the appellants are absolutely innocent and there is no material to convict them for the said offences. He assailed the impugned judgment on the ground that there are several contradictions in the statement of eye witnesses, which creates doubt on the prosecution case. Public Prosecutor appearing for the State . 12. Learned counsel appearing for the appellants submits that the appellants are absolutely innocent and there is no material to convict them for the said offences. He assailed the impugned judgment on the ground that there are several contradictions in the statement of eye witnesses, which creates doubt on the prosecution case. He further submits that as per the prosecution case, the informant and others had gone to the field where the appellants were working, thus the informant and his associates themselves were the aggressor of the alleged occurrence. He further submits that the evidence of ocular witnesses has not been supported by the medical evidence, which caused serious doubt on the prosecution story. He further submits that the Investigating Officer has not been examined in this case and as such, the place and manner of occurrence has not been proved. Lastly, he submits that the prosecution has failed to prove the guilt of these appellants beyond all reasonable doubt, as such, they deserve to be acquitted. 13. On the other hand, learned APP opposing the argument advanced on behalf of the appellants, submits that though the investigating officer has not been examined in this case but it is admitted that for the alleged occurrence there was case and counter case by both the sides, which proves the incident. He further submits that irrespective of some minor contradictions the ocular evidence was otherwise consistent and their evidence was supported by the medical evidence. He further submits that the learned trial court rightly rejected the plea of right of private defence of the appellants as the injuries found on their bodies were simple in nature and, thereby, the conviction of the appellants is absolutely justified and their appeal liable to be dismissed. 14. We have heard the learned counsel for the parties and gone through the entire lower court records including the depositions and exhibits. It appears that the first information report was registered on the basis of the fardbeyan of the informant Balisius Kujur (PW9) against appellants. PW9 Balisius Kujur is the informant as well as the injured eyewitness to the occurrence. He supported the statement given in the fardbeyan. He, in his evidence, has stated that on 10.11.1995 he was at his home along with Anil Toppo, Theodar toppo and Albert Ekka. PW9 Balisius Kujur is the informant as well as the injured eyewitness to the occurrence. He supported the statement given in the fardbeyan. He, in his evidence, has stated that on 10.11.1995 he was at his home along with Anil Toppo, Theodar toppo and Albert Ekka. At about 8 a.m Bhikhu Rawatia of Pakri Toli came to his house and informed that Irnius Tigga and another are harvesting his paddy crops armed with various weapon. On getting this information, he, along with his family members went to stop them from cutting the crop from Dumar Done Khata No. 31, Plot no. 609, 610 and 611. When they reached there they saw that Irnius Tigga, Nicolas Tigga, Johan Tigga, Bibiyani Tigga, Manjela Tigga, Jinu Tigga, Ajit Tigga and Apolina Tigga were cutting the crop. When the informant and others tried to stop them, they started assaulting them with Gulel, Bow and Arow, Lathi, Barchha, Tangi, Balua and Sickle. Nicolas Tigga assaulted on the head of the informant with the "bat" of Barcha due to which he fell down, then Irnius Tigga assaulted with Lathi on his right hand, Jinu Tigga assaulted with sickle on his right ear and mouth due to which his one tooth was broken and he received cut injury on his ear. In the meantime, Bibiyani Tigga assaulted on the head of the informant with Tangi. Thereafter, all the accused persons started assaulting Rafail, Arun, Michel and Albert. Meanwhile the wife of the informant Iliasaba Kujur and one Etwa Kumhar started taking him toward Pakri Toli and they all had seen Nocolas Tigga and Irnius Tigga assaulting Albert Ekka with Danda, due to which he fell down. Jinu Tigga then assaulted on his head with Tangi as a result of which he became unconscious. On hearing hulla many villagers assembled there and saved them. The informant saw that the blood was oozing from the head of Rafail Kujur and there was injury below his right knee and left wrist. Arun Kujur received injuries below his left knee and back as well as cut injury on his head. Michal Tigga received cut injury on his head and injuries on his left little finger, back and waist. During course of treatment, Albert Ekka died. Arun Kujur received injuries below his left knee and back as well as cut injury on his head. Michal Tigga received cut injury on his head and injuries on his left little finger, back and waist. During course of treatment, Albert Ekka died. He stated that the place of occurrence is about 1 k.m. from his house and the accused were cutting crop from western side and the occurrence took place in the field of Mukund Rawatia, which is about 50 yards away from the place of occurrence. He proved his signature and the signature of Maqbul Mian on the fardbeyan, which has been marked as Ext. 2 and 2/1. In his cross-examination he stated that Jinu assaulted Albert by Tangi from its sharp side. He further deposed that Albert had received only one Tangi blow. 15. PW1 Ilishaba Kujur is the wife of the informant, who claimed herself to be an eyewitness to the occurrence. She has corroborated the statement of the informant (PW9). She further stated that Jinu Tigga assaulted Albert by Tangi on his head due to which he fell down and became unconscious and later on died. She further stated that the accused have not assaulted her. In her cross-examination she deposed that for the same occurrence the accused persons have also lodged a case against her and nine others. She did not say as to who had assaulted whom but she stated that Jinu Tigga assaulted Albert by Tangi on middle of his head. 16. PW2 is Saniyaro Kujur, who also claimed herself to be an eyewitness to the occurrence. She has stated on the same line as have been stated by the informant and PW1. In cross-examination, she denied that for the same offence any case was lodged by the accused persons against her and her associates. 17. PW3 Rafail Kujur is the injured eyewitness to the occurrence. He supported the case of the prosecution. In his evidence, he stated on the same line as have been stated by PWs1, 2 and 9. In his cross-examination, he stated that he was the only person who received injury by bow in the field of Mukund, which was about 30 feet away from the disputed land. He was twice assaulted on his head by Tangi and several times with Lathi but he did not count the assault. In his cross-examination, he stated that he was the only person who received injury by bow in the field of Mukund, which was about 30 feet away from the disputed land. He was twice assaulted on his head by Tangi and several times with Lathi but he did not count the assault. He further stated that the accused persons did not receive any injury and he had not become unconscious. 18. PW4 Godlin Bara is the hearsay witness to the occurrence. PW5 Md. Jamruddin Khan is the independent eyewitness. He, in his evidence, has deposed that on hearing hulla he went to the place of occurrence and saw that Iriniyus Tigga, Nicolas Tiga and Ajit Tigga were assaulting Albert with Lathi. When he forbade them they did not understand. In the meantime, Irniyus Tigga came and assaulted on the head of Albert with Tangi. Thereafter, all of them fled away. He further deposed that he saw Arun, Michal and Rafail in injured condition. In his cross-examination, he deposed that when he reached at the place of occurrence, other persons were not there. Irniyus Tigga had given single blow by Tangi on the head of the Albert, but he had not seen any injury on the body of the accused persons. He did not know as to whether for the same incident any case is pending against Arun, Rafail etc.. He denied any enmity with Irniyus. 19. PW6 is Md. Hasmat Khan. He reached at the place of occurrence immediately after the occurrence. He stated that he had seen Irniyus Tigga, Nicolas Tigga, Ajit Tigga, Johan Tigga, Manjela Tigga, wife of Irniyus, Jinu Tigga and his wife fleeing from the place of occurrence. In his cross-examination, he deposed that he had seen the accused persons from the distance of about 200 feet 20. PW7 Michel Tigga is the injured eyewitness. He stated that on hearing hulla he went to the place of occurrence and saw that Irniyus was beating Rafail. When he forbade him, he was also beaten by Irniyus with Lathi, due to which he received injury on his waist, back and head. In his cross-examination, he stated that when he reached at the place of occurrence he saw that one person namely Albert was lying there. He denied the suggestion that for the same incident a case is pending against him and eight others. 21. PW8 is Dr. In his cross-examination, he stated that when he reached at the place of occurrence he saw that one person namely Albert was lying there. He denied the suggestion that for the same incident a case is pending against him and eight others. 21. PW8 is Dr. T.J. Minz, who conducted the post mortem examination on the dead body of the deceased Albert Ekka and found the following injury : (i) Bruise 2" x 2" with swelling over left side of forehead. 2" in diameter with blood clot under the scalp of frontal region and a fracture over left frontal bone with extra Dural Hematoma of left frontal temporal region with intra cerebral clots in the above-mentioned lobes. In his opinion, the above injury was caused by hard and blunt substance and is grievous in nature and sufficient to cause death in ordinary course of nature and the death was caused due to shock and hemorrhage and time elapsed since death within 24 hours. He proved the post mortem report as Ext.1. He did not find any sharp cut injury on the person of the deceased. In his cross-examination, he deposed that he did not find any injury caused by sharp cutting weapon. 22. PW10 Jyoti Tigga is an Advocate Clerk, who proved the writing of Lodga Murmu in the fardbeyan, formal FIR, and inquest report, which have been marked as Exts. 3, 4 and 5. He further proved the injury report of Rafail Kujur, Michel Tigga and Balasiyus Kujur, which have been marked as Exts.6, 6/1 and 6/2. He further proved page nos. 132 of the case diary, which was in the handwriting of Lodga Murmu, which is marked as Ext.7. In cross-examination, he deposed that the documents were not written or signed before him. 23. PW11 is Dr. Gyan Prakash, who had examined the injuries on the body of Rafail Kujur, Michel Tigga and Balasius Kujur.. He proved his signature on Ext. 6, 6/1 and 6/2. He found the injuries on their bodies as simple in nature and caused by hard and blunt substance and also by sharp cutting weapon. In his cross-examination, he stated that he cannot define the particular weapon. 24. From analyzing the evidence led by both the parties, we find that it has come in evidence that these appellants were harvesting the paddy crops when the informant and others reached at the place of occurrence. In his cross-examination, he stated that he cannot define the particular weapon. 24. From analyzing the evidence led by both the parties, we find that it has come in evidence that these appellants were harvesting the paddy crops when the informant and others reached at the place of occurrence. As the informant tried to stop them, there was a free fight which took place between both the sides. It has come in the evidence of PW1 that there is a counter case arising out of the same occurrence. From the evidence it is also clear that all these appellants were armed with different weapons like Hasua, Tangi, Barchha, Balua, Lathi etc. etc. The details of the assault have been described by each of the witnesses. The injured witnesses also supported the case of the prosecution with regard to assault, which had taken place. It appears that there was land dispute between the parties since the year 1995. It has also come in the evidence that the informant''s party had also received injuries. We find that learned Sessions Judge, in the impugned judgment, has observed that there was a long standing land dispute between the informant and the accused persons. It has also been observed that there are several cases between the parties, which we also find from the different documents, which have been exhibited in this case. These documents clearly go to suggest that it is an admitted fact that there was a serious land dispute between the parties. From the evidence adduced, it is also clear that the accused persons were harvesting the crop and the informant reached there to stop them for doing so. The witnesses also stated that Albert Ekka was assaulted and because of the said assault, he died. The members of the informant parties were also assaulted by the appellants. It is admitted that the Doctor found several injuries on the person of the informant party. Injuries were also found upon the accused persons. As observed earlier, there was a case and counter case for the said offence as there was bonafide land dispute between the parties. The learned Court below also came to a finding that the entire incident took place in spur of the moment in which both the sides sustained injuries and Alberk Ekka lost his life. As observed earlier, there was a case and counter case for the said offence as there was bonafide land dispute between the parties. The learned Court below also came to a finding that the entire incident took place in spur of the moment in which both the sides sustained injuries and Alberk Ekka lost his life. The Trial Court also, after analyzing the evidence, came to the conclusion that it cannot be held that the assembly of the persons was unlawful to the extent to commit murder of someone as it is a case of free fight and thus, there is no application of Section 149 of the Indian Penal Code. 25. After analyzing the said finding and after analyzing the evidence, this Court comes to the conclusion that this case cannot come within the ambit of Section 302 of the Indian Penal Code. Thus, conviction of the appellants Irniyus Tigga, Iginius Tigga @ Jinu Tigga, Nicolas Tigga, Ajit Tigga and John Tigga @ Johan Tigga, under Sections 302/34 of the Indian Penal Code, is bad. 26. This case thus will come within the ambit of Section 304 Part-II of the Indian Penal Code. Accordingly, we convict all the appellants, except appellant no. 6 Bibiyani Tigga, for committing the offence under Section 304 Part II of the Indian Penal Code and they are been sentenced for imprisonment for the period which they have already undergone. 27. So far as conviction of appellant nos. 1, 2, 3 & 6 namely Irniyus Tigga, Ininius Tigga @ Jinu Tigga, Nicolas Tigga and Bibiyani Tigga for the offence under Section 324/34 is concerned, their conviction is hereby upheld and they are also sentence to undergo imprisonment for the period already undergone by them. Appellant Nos. 1 to 5 namely, Irniyus Tigga, Iginius Tigga @ Jinu Tigga, Nicolas Tigga, Ajit Tigga and John Tigga @ Johan Tigga, who are in custody, are directed to be released forthwith if not wanted in any other case. Appellant No. 6 Bibiyani Tigga, who is on bail, is discharged from the liabilities of her bail bonds. 28. In the result, this appeal is partly allowed. Ananda Sen, J. - I agree.