1. This appeal has been preferred by four accused-appellants against judgment and order dated 26.07.2004 of learned Additional Sessions Judge (Fast Track), Bandikui, District Dausa, in Sessions Case No. 12/2004 (01/2004), whereby they have been convicted and sentenced in the following manner:--

2. Brief facts giving rise to this appeal are that complainant Kesar Singh (PW-1) lodged a written report (Exhibit P-1) at Police Station Mandawar on 30.06.2003, wherein it was alleged that on that day at about 3.30 PM he and his two sons, namely, Ram Singh and Pintu Mahuwa, were coming on his Kisan Bugga. 2-3 persons of the village told that Amar Singh, Jagdish, Sher Singh, Vijay, Raju, Samay Singh, Anatram, Gopal, Smt. Shanti Devi, Gulab, Sheela, Bhuri and Babli Devi, all by caste Chovdar (Balai), and Sriram, Ghisa and Sua Devi, by caste Prajapat, R/o Pakhar Chodaki, were taking dhankre (dry wood) from the land of their old well. On this information, when they reached in front of the house of Kumhars, they were encircled by them, who gave beating to all three of them, with lathi, farsi and dhariya, as a result of which complainant, Ram Singh and Pintu received various injuries on their body. Pintu went to Mandawar hospital. He and Ram Singh were taken by the police to Mahuwa Hospital, where Ram Singh succumbed to his injuries during treatment. It was alleged that at the time of incident, Dhan Singh Kaka, Daya Gurjar, Samay Gurjar, Chhotelal Saini and other persons of the village were present and Uggenath intervened. On receipt of the report F.I.R. No. 100/2003 was registered for offence under Sections 147, 148, 149, 323, 302 and 341 IPC, against 16 persons and investigation commenced.

3. During the course of investigation, the accused-appellants were arrested. The police filed challan for offence under Sections 147, 148, 149, 341, 379, 323, 324, 307 and 302 IPC against 12 persons. Charges were framed for offence under Sections 148, 341, 379 and 302 or 302/149, 324 or 324/149, 323 and 323/149 IPC. The accused abjured the charges and claimed to be tried. The prosecution produced as many as 16 witnesses and produced Exhibit P-1 to Exhibit P-49. The accused were examined under Section 313 of the Code of Criminal Procedure and they also again called Dr. Kamlesh Chholak (PW-3) for reexamination and exhibited documents from Exhibit D-1 to Exhibit D-5. Learned trial court, on conclusion of trial, convicted and sentenced the accused-appellant in the manner indicated above.

4. Shri Biri Singh Sinsinwar, learned senior counsel appearing for the accused-appellant, submitted that learned trial court erred in law in not considering that as per the F.I.R., 16 persons were named as accused and the police filed challan only against 12 accused. The trial court has disbelieved the prosecution story as regards those 12 persons, yet it has convicted four appellants on the same set of evidence. Learned trial court, in doing so, has disbelieved all the prosecution witnesses except Kesar Singh (PW-1) and Devendra Singh Pintu (PW-2). Even these witnesses were disbelieved by the trial court in part, which believed them only partly. Learned senior counsel submitted that not only the trial court disbelieved Ugge Nath (PW-5), Dhan Singh (PW-11), Kishori (PW-12), Surendra Singh (PW-13) and Latoor (PW-14), but rather observed that they were not even eye witnesses, which means that they were planted witnesses. The law on the question of partially reliable witnesses is well settled that their testimony cannot be acted upon unless it finds corroboration from some other evidence, which was not available. The conviction of the appellants has thus been wrongly recorded. It is argued that as per prosecution story, the accused-persons were removing dry woods (Dhakras) meant to be used as fuel, from the courtyard (baada) and complainant party came there and objected thereto, which resulted in the incidence in question. The complainant party has failed to prove possession and title over the land of aforesaid baada and it has also failed to prove theft of fuel wood. The accused-appellants have been acquitted of the charge under Section 379 as well as Section 341 IPC. The trial court has disbelieved all the prosecution witnesses and has gone to the extent of holding that genesis of the incident has been suppressed and an entirely new story has been introduced. Learned senior counsel, in this connection, has referred to observations made by learned trial court in para 20 and 21 of the judgment and especially para 25. The trial court has observed that incident has not taken place in the manner as has been disclosed in written report (Exhibit P-1). The complainant party has suppressed the facts that when they learnt about the alleged fact of removal of fuel woods, they went to the accused to talk to them about this and the incident has taken place there. The trial court, therefore, observed that the story of the prosecution that the complainant party was intercepted on the way and subjected to beating is not believable. The impugned judgment is therefore liable to be set aside.

5. Learned senior counsel further argued that the trial court has erred in law in not correctly appreciating the evidence of Dr. Hari Singh Bhandari (PW-4) and the medico-legal evidence available on record. The deceased was medically examined by Dr. Hari Singh Bhandari (PW-4), who prepared the injury report (Exhibit P-10). He also conducted the postmortem of the body of deceased, which is Exhibit P-11. As per the postmortem report, four injuries were sustained by the deceased, whereas, according to injury-report, he received ten injuries, which is a serious contradiction and cannot be reconciled. The postmortem report is also not clear as to exact number of injuries received by deceased on the skull. As per postmortem report, deceased received only one injury on skull by sharp edged weapon and rest injuries were caused by blunt weapon. Even if what has been stated by Dr. Hari Singh Bhandari (PW-4) and the postmortem report is believed, the deceased received only one injury by sharp edged weapon and remaining injuries received by deceased were by blunt weapon. Learned trial court mechanically convicted three persons, whereas Kesar Singh (PW-1) and Devendra Singh Pintu (PW-2) have attributed three head injuries to three persons, and alleged that Jagdish caused a farsa blow on the head of deceased Ram Singh, Anatram caused a tanchiya blow on his head and Shanti inflicted a kulhari blow on his head. If this version is to be believed, the deceased should have received three incised head injuries by sharp edged weapon, whereas there is only one incised injury as per the postmortem report. Since statements of Kesar Singh (PW-1) and Devendra Singh Pintu (PW-2), who have been partially disbelieved by the trial court itself, do not find corroboration, it cannot be determined as to who actually was the author of incised wounds and injuries by blunt weapon. In such a scenario, the accused-appellants cannot be held responsible for offence under Section 302 IPC, particularly when as per the own observations of learned trial court, the complainants were aggressors.

6. Learned senior counsel argued that three persons have received injuries on the side of the accused, which have not been explained by the prosecution. As per arrest memo (Exhibit P-41) of accused Amar Singh, he received one injury on left parietal region of the skull. As per arrest memo (Exhibit P-42), accused Jagdish received two bruises on shoulder and back and two abrasions on the head, thus total four injuries. In the arrest-memos of both, it was mentioned that their medical examination would be got conducted later, but their injury report were not produced on record. Even then, presence of injuries has been admitted. Besides, accused Sher Singh, as per MLR (Exhibit D-3), received three injuries. First is said to be bruise, second is said to have been shown white bandage cover on right arm and third was pain in left knee joint but no external injury was seen, whereas, according to X-ray report (Exhibit D-5), there was fracture of his right humorous bone upon 1/3rd region. This fact when considered along-with observations made by learned trial court that the complainant party first went to their house and then returned back to engage with the accused party in the altercation, goes to show that while the complainants were aggressors and the accused merely acted in their right of private defence. Therefore, it was a case of free fight, where each of the accused can be held liable individually and not with the aid of Section 34 IPC. The accused can at the maximum be convicted for offence under Section 325 IPC as per the ratio of judgment of the Supreme Court in Ram Lal v. Delhi Administration - , (1973) 3 SCC 466 [LQ/SC/1972/420] , which has been reiterated by the Supreme Court in subsequent cases in Ninaji Raoji Boudha and Another v. State of Maharashtra - , (1976) 2 SCC 117 [LQ/SC/1976/56] and State of Rajasthan v. Kishan Singh and Others - (2002) 10 SCC 160 [LQ/SC/2001/972] . Learned senior counsel has submitted that even in a case of free fight, where each accused is held responsible for his individual liability, since specific plea of right of private defence was taken by the accused-appellants not only in their statements, but a specific question was put on behalf of the accused to Kesar Singh (PW-1) and Devendra Singh Pintu (PW-2) in their cross-examination and specific defence was taken by them in their examination under Section 313 Cr.P.C., they must be held to have acted in excess of the right of private defence.

7. Learned senior counsel referred to statement of Dr. Hari Singh Bhandari (PW-4), and stated that he could not give specific explanation as to why in the postmortem report, despite his opinion that cause of death was coma due to head injury, in later part, he gave the opinion that "grievous injuries" and "fracture" mentioned in the postmortem report, are sufficient to cause death in the ordinary course of nature. Learned senior counsel referring to postmortem report, submitted that therein it is mentioned that lacerated wound and incised wound with fracture of parietal bone and massive swelling are simple and it was mentioned that a separate sheet of paper was attached but there was no such sheet available on record. Prosecution therefore failed to explain as to availability of such sheet and rather sought to clarify that this sheet is none other than the injury report (Exhibit P-10).

8. Shri Biri Singh Sinsinwar, learned senior counsel, referring to statement of Rajesh Yadav (PW-16), submitted that he, in cross-examination, admitted that before he could reach the place of incident, the complainant party met him on the way to the place of incident. He met with injured Kesar Singh, father of deceased Ram Singh, who informed that he, his son Ram Singh and Pintu Singh were coming from Mahuwa and when they entered the village, the villagers told them Amar Singh, Chobdar Balai and his family members were removing the fuel woods from their baada. When they went to prevent them, the accused-party subjected them to severe beating. If this was the information, which he received immediately after the incident, the Investigating Officer was duty bound to reduce this information into writing and enter the same in rojnamcha. This information should have been treated as first information and the information which he allegedly received at 6.40 PM (Exhibit P-1), was merely a statement under Section 161 Cr.P.C. and would be hit by Section 162 Cr.P.C. Learned senior counsel submitted that neither in the information given to the Investigating Officer by father of deceased Ram Singh, nor in the written report (Exhibit P-1) any specific overt act was given but the complainant party improved upon their version after the inquest report and the postmortem report were prepared and then attributed three specific injuries to three accused on the head of deceased, and named 16 persons in the F.I.R. as accused. While the Investigating Officer disbelieved their version for four accused and filed challan only against 12 accused, and the trial court has convicted only four appellants. The story of the prosecution is highly unbelievable and it is highly unsafe to convict all the accused-appellants on such shaky evidence. Learned senior counsel argued that while incident took place on 30.06.2003, recovery of farsa at the instance of Jagdish has been made vide Exhibit P-47 on 06.07.2003, but the recovery of tanchiya at the instance of Anatram vide Exhibit P-35 was made on 17.11.2003, and that of kulhari was made on 17.11.2003 at the instance of Smt. Shanti, which is highly belated. While farsa allegedly contained blood stains, remaining two weapons did not contain the blood stains. FSL report (Exhibit P-40) would also show human blood of A group, which was the blood group of deceased, was found on various articles. Since three accused persons were found to be injured and other close relatives of the deceased were also found to be having injuries, it was quite possible that their blood group was also of Group A. Besides, three members of the accused party were also injured, their blood group has not been determined so as to rule out the possibility that blood found on the articles was not theirs. All these facts show that the alleged guilt of the accused-appellants has not been proved beyond reasonable doubt and thus entitling them to benefit of doubt.

9. Learned senior counsel for appellants also argued that the case of the accused-appellant Amar Singh can in no way be said to be distinguishable from that of accused Sher Singh because one lathi recovered at the instance of both of them was found to contain human blood of group A and that there was no specific allegation against both of them of causing injury on the person of deceased Ram Singh. The specific allegation has been made only against Jagdish, Shanti and Anatram. As far as deceased is concerned, allegation has been made that when Ram Singh received those three injuries, he sat down and other accused inflicted lathi blows. Since it was a case of free fight and in that process, exceeding right of private defence, accused-appellant Amar Singh could not be convicted for offence under Section 302 read with Section 34 IPC, although each accused for individual liability could at the best be convicted for individual offence including for offence under Sections 323 and 324 IPC for the injuries received by other injured.

10. Shri R.S. Raghav, learned Public Prosecutor appearing on behalf of the State, opposed the appeal and submitted that the trial court has carefully scrutinized the evidence available on record and found the guilt of the accused-appellants proved beyond reasonable doubt. The trial court has acquitted such of the accused against whom, according to it, the offence was not found proved beyond reasonable doubt, but so far as accused-appellants are concerned, their guilt is fully proved. The statements of Kesar Singh (PW-1) and Devendra Singh Pintu (PW-2) have to be accepted as correct because they were subjected to extensive cross-examination on the role assigned to accused-appellants, and their version during investigation and thereafter before the court has remained consistent and unshaken. Learned Public Prosecutor, referring to statement of Kesar Singh (PW-1), submitted that this witness has categorically stated that Jagdish inflicted farsa blow on the head of Ram Singh, Shanti inflicted kulhari blow on his body, and Anatram also inflicted a tanchiya blow on his head and for other accused this witness has merely alleged they had lathis in their hands. He further stated that Amar Singh inflicted a lathi blow on the head of this witness; Jagdish gave blows on his legs, Samay Singh also gave beating to him. He further stated that Jagdish inflicted a farsa blow on the eye of Pintu; Amar Singh gave lathi blow on his head; Shanti inflicted kulhari blow on the eye and others caused maar-peet with them with lathis. Devendra Singh @ Pintu (PW-2) has also made specific allegation in so far as injured and deceased are concerned. He stated that Jagdish inflicted farsa blow on the head of Ramsingh, Anatram inflicted tanchiya blow on the head of Ramsingh, Shanti inflicted kulhari blow on the head of Ramsingh. When he tried to save Ram Singh, these persons also caused maar-peet with him. Ram Singh felt vertigo and sat on platform (chabutra) and thereafter remaining persons delivered lathi blows on him. When Devendra Singh and Kesar Singh tried to save Ram Singh, Jagdish inflicted a farsa blow on the eye of Devendra Singh, Shanti gave kulhari blow on his nose, Amar Singh gave lathi below on his forehead. Samay gave lathi blow on the right leg of Kesar Singh; Amar Singh gave lathi blow on his head; Babli and Gulab caused injuries on the right hand of Kesar Singh.

11. Learned Public Prosecutor submitted that there is no ambiguity so far as the injury report and postmortem report are concerned. Dr. Hari Singh (PW-4) clarified that he might have mistakenly used the word separate sheet indicated in the postmortem report. What he meant thereby was that injury report Exhibit P-10. He has clarified that cause of death of deceased Ram Singh was three injuries, namely injury No. 1, 2 and 4, and that he did not repeat the injury in total in the postmortem report because he himself had prepared the injury report prior to preparation of the postmortem report immediately before Ram Singh died and therefore in cross-examination, he clarified that there was fracture of both right and left parietal region.

12. Learned Public Prosecutor therefore submitted that if the accused had aimed at only single person i.e. deceased Ram Singh, why they inflicted injuries to other injured is not explained. It cannot be said to be a case of free fight. It also cannot be said to be a case of exceeding the right of private defence because the accused party has not lodged any cross-case, and that the injuries sustained by two accused, namely, Jagdish and Sher Singh, have not been proved.

13. In view of the nature of injuries and the fact that such injuries were caused on vital part of the body of the deceased and the specific overt act assigned to them, the argument raised on behalf of the appellants that it is not ascertainable as to which accused caused which injury, therefore each of the accused cannot be held responsible for offence under Section 302 read with Section 34 IPC and at the most they can be convicted for offence under Section 325 IPC, cannot be accepted.

14. We have given our anxious consideration to rival submissions and also minutely scanned the material on record.

15. Although, the prosecution has produced several witnesses claiming them to be the eye witnesses but the trial court in the impugned judgment has thoroughly marshalled the evidence and found only Kesar Singh (PW-1) and Devendra Singh Pintu (PW-2), as eye witnesses. Learned trial court has noted the statement of Rajesh Yadav (PW-16), the Investigating Officer, that he got the information of incident at the police station prior to receiving the written report (Exhibit P-1) and entered such information in the rojnamcha. This information was given by chowki in-charge of Rasheedpur, Police Station Mandawar, by wireless and therefore he reached the place of occurrence, which was only half a kilometer away. Before reaching the village, he met injured on the way, who informed him about the incident but at that time, in order to save the life of Ram Singh, who was in critical condition, he immediately took him to the hospital. On the way, his father told him in the vehicle about the manner in which the incident took place. Immediately on the deceased being taken to the hospital, his treatment was started. Apart from deceased, Kesar Singh received four injuries, three of which were lacerated wound and one was bruise. Injury report (Exhibit P-10) of deceased Ram Singh was prepared at 5.40 pm on 30.06.2003 and soon thereafter he died and his postmortem report was prepared at 5.50 pm on the same day, which is clear from the postmortem report, wherein remark has been made that deceased died 10-15 minutes ago. The injury report of Kesar Singh was prepared on the same day at 5.35 pm. The apprehension of the Investigating Officer was correct that injured Ram Singh was indeed in a very critical condition, therefore, his first priority was to take him immediately to the hospital and try to save his life. Although unfortunately his life could not be saved but taking him to hospital cannot be said to be such a step of investigation that parcha bayan which was received by the Investigating Officer from father of deceased at 6.40 pm should be declared hit by Section 162 Cr.P.C. Entire prosecution case cannot be thrown out on this plea particularly when both Kesar Singh (PW-1), father of deceased, and Devendra Singh (PW-2) have been accepted to be eye witnesses, both of whom were injured, and therefore, their presence at the scene of occurrence cannot be doubted.

16. Learned trial court has held Ugge Singh (PW-5), Dhan Singh (PW-11), Surendra Singh (PW-13), Latoor (PW-14) as reliable witnesses. In fact, learned trial court has not completely believed the version of Kesar Singh (PW-1) and Devendra Singh (PW-2), and stated that their testimony is reliable only with regard to allegation against Jagdish, Shanti, Anatram and Amar Singh, which finds corroboration from the medical evidence and for rest of the accused, it held that the charge against them has not been proved beyond reasonable doubt. Since total number of accused was reduced from 12 to 4, offence under Section 148 IPC was not held proved against them. We find that Kesar Singh (PW-1) and Devendra Singh (PW-2), in their statements, are consistent that Jagdish inflicted farsa blow on the head of deceased and Shanti inflicted kulhari blow. But these witnesses have not specified as to on which part of the body of deceased, accused Shanti inflicted kulhari blow, and merely stated that she inflicted a kulhari blow to Ram Singh. Then, they stated that Anatram inflicted a tanchiya blow on his head. These witnesses have not been subjected to cross-examination by defence as to the role attributed to these three accused. Learned trial court rightly held that their earlier version did not materially contradict from their subsequent version, but the prosecution has not got it clarified as to whether Shanti inflicted a kulhari blow on the head of deceased as Kesar Singh (PW-1) has merely stated that Shanti inflicted a kulhari blow to Ram Singh but not specified the part of body on which it was delivered. In cross-examination, however, this witness has again repeated that Jagdish inflicted farsa blow on the head of deceased Ram Singh, which hit on the left side of his head and that he was not sure whether such blow hit left or right side of the head. He also stated that Anatram inflicted a blow of tanchiya on the head of Ram Singh but he was not sure as to on which part of his head this blow was caused. Devendra Singh (PW-2) has however stated that Jagdish inflicted a farsa blow on the head of deceased, Anatram inflicted a tanchiya blow on the head of deceased Ram Singh and Shanti inflicted a kulhari blow on the head of deceased Ram Singh. In cross-examination, this witness has stated that injury was caused by Jagdish on the back side of head of Ram Singh and Shanti inflicted injury immediately above the left ear and Anatram inflicted the injury 2-3 fingers above the left ear. Then he fell down and thereafter all accused started beating him.

17. In the light of statements of these two witnesses, if we analyze the injuries received on the body of deceased, it is evident that as far as injuries No. 5 to 7 are concerned, they are mere abrasions. Injury No. 8 is bruise. Injuries No. 9 and 10 are swelling. As far as injury No. 5 is concerned, it was abrasion on front of right ear in the size of 3x2 cm. Injury No. 6 was abrasion on the right side of the neck below the right ear in the size of 3x2 cm. Injury No. 7 was also abrasion on the right shoulder in the size of 5x4 cm. All these three injuries were opined to be simple in nature. Injury No. 8 was bruise with redness on right scapula in the size of 9x4 cm, wherefore opinion was reserved. Injury No. 9 was swelling in the size of 7x5 cm and injury No. 10 was also swelling in the size of 6x5 cm, both parallel on the right middle forearm, but the injury No. 1, that proved fatal, was described as lacerated wound, with clotted blood in the size of 4x2 cm and bleeding at vertical on his parietal prominence. Injury No. 2 was described as incised wound with bleeding and clotted blood in the size of 6 1/2 x 1 cm x bone deep, as vertical on parietal region of scalp near centre line. Injury No. 3 was also described as incised wound with clotted blood in the size of 3 1/2 x 1/2 cm x muscle deep at back of left ear. Injury No. 4 was described as massive swelling in the size of 5x8 cm on right parietal occipital region of scalp to right mandible of jaw. Opinion was reserved for injuries No. 1, 2, 4 and 8. But later only injuries No. 1, 3 and 4 of the deceased were opined to be fractures. Injury No. 3 was described a simple in nature.

18. Before we discuss the role attributed to each of the accused as to the injuries of the deceased, let us briefly examine the injuries sustained by Kesar Singh (PW-1) and Devendra Singh (PW-2). As regards his injuries, Kesar Singh (PW-1) has alleged that Amar Singh inflicted a lathi blow on his head; Jagdish gave blows on his legs, Samay Singh also gave him beating. He further stated that Jagdish inflicted a farsa blow on the eye of Pintu i.e. Devendra Singh (PW-2); Amar Singh gave lathi blow on his head; Shanti inflicted kulhari blow on the eye and others caused maar-peet with him with lathis. Devendra Singh @ Pintu (PW-2) has stated that when he and Kesar Singh were trying to save Ram Singh, Jagdish inflicted a farsa blow on his eye, Shanti gave kulhari blow on his nose, Amar Singh gave lathi blow on his forehead, Samay gave lathi blow on the right leg of Kesar Singh; Amar Singh gave lathi blow on his head; Babli and Gulab caused injuries on the right hand of Kesar Singh.

19. Let us now examine whether the alleged injuries on the person of deceased and injured as per the version of the witnesses, find corroboration from the medical evidence.

20. The fact that Jagdish inflicted a farsa blow on the head of deceased, has been consistently maintained by Kesar Singh (PW-1) and Devendra Singh (PW-2) in their statements. Kesar Singh (PW-1) in the cross-examination, has clarified that this farsa blow was received by deceased Ram Singh on the left side of the head. Devendra Singh (PW-2) has also clarified that this was towards the back side of the head of deceased. This blow was delivered on his head. When we analyze the injury report as well as the postmortem report along-with the statement of Dr. Hari Singh Bhandari (PW-4), we find that Ram Singh received incised wound with bleeding and clotted blood in the size of 6 1/2 x 1 cm x bone deep, as vertical on it parietal region of scalp near centre line.

21. So far as accused-appellant Anatram is concerned, similar assertion has been made by Kesar Singh (PW-1) in cross-examination. Devendra Singh (PW-2) has also made similar statement. In cross-examination, he stated that Anatram inflicted the blow of tanchiya on the left side of the head 2-3 fingers above the ear. Injury No. 3 was also incised wound with clotted blood in the size of 3 1/2 x 1/2 cm x muscle deep at back of left ear, caused by sharp edged weapon, which has been opined to be simple in nature.

22. Then coming to the role of accused-appellant Shanti that she inflicted a kulhari blow on the head of deceased Ram Singh, as per the allegation of Kesar Singh (PW-1), who, in cross-examination, did not further clarify her exact part but Devendra Singh (PW-2), in cross-examination, has stated that Shanti also inflicted the blow on the head of deceased on right side immediately 2 fingers above the ear, but there is no such incised wound found above the right year. Injury No. 1 is a lacerated wound with bleeding and clotted blood in the size of 4x2 cm x bone deep at vertical on his parietal prominence, whereas injury No. 4 is massive swelling in the size of 5x8 cm on the right parietal occipital region of scalp to right mandible of jaw, but this is not an incised wound.

23. Dr. Hari Singh Bhandari (PW-4), in his statement, has opined that injuries No. 1, 2 and 4 were responsible for the death of Ram Singh, and that deceased had suffered fracture of both right and left parietal bones, but he has opined only injuries No. 2 and 3 to be incised wound, injury No. 1 to be lacerated wound and injury No. 4 to be massive swelling. If that be so, except Jagdish about whose role the ocular evidence finds corroboration of causing injury No. 2 by medical evidence, the author of injuries No. 1 and 4 becomes suspect. Besides this, suspicion further compounds because in the injury report, injury No. 4 has merely been described as massive swelling and opinion has been reserved but this injury is shown to have been caused by sharp edged weapon, for apparently no justification, despite there being no cut.

24. We find that the trial court has come out with a categorical finding that there was a concentrated attack on the part of the prosecution to over exaggerate the allegations and implicate as many persons as possible. The trial court, while making detailed analysis of entire evidence in para 30 of the impugned judgment, has observed that evidence is required to be critically examined in the context of attending circumstances. The prosecution has suppressed genesis of the incident in the written report (Exhibit P-1), and even the prosecution witnesses, namely, Kesar Singh (PW-1) and Devendra Singh (PW-2) have concealed origin of incidence from the court. The incident has not taken place in the manner in which it has been disclosed in the written report (Exhibit P-1). In fact, the complainants first went to their house and thereafter they approached the accused and only then the altercation between two parties took place leading to unfortunate incident. The trial court, in support of its finding, has relied on judgment of this Court in Barkat v. State of Rajasthan - 2003 RLR 669 and then observed that Devendra Singh (PW-2) in cross-examination, stated that when they forbade the accused-party from taking the fuel wood, the accused party had thrown the fuel wood on the way itself and encircled the complainant party and then started beating them. It was then observed that if this is taken to be correct, the fuel wood would have certainly been recovered from the way, where the incident took place. The site plan (Exhibit P-5) does not corroborate this fact. It was further observed that Kesar Singh (PW-1) and Devendra Singh (PW-2) both have asserted that all accused started beating them and deceased Ram Singh. If this is taken to be correct, then all those 12 accused would have at once started beating three members of complainant party and then injured Kesar Singh and Devendra Singh would have received much more number of grievous injuries, whereas they have not disclosed more number of injuries than actually found. Devendra Singh (PW-2) has alleged that Babli and Gulab caused injuries on the right hand of Kesar Singh, whereas Kesar Singh (PW-1) himself did not make any such allegation. Devendra Singh (PW-2) and Kesar Singh (PW-1) both have alleged that accused Jagdish, Shanti and Anatram inflicted injuries on the head of deceased Ram Singh, but in their statements, they did not disclose as to who caused the other injuries found on the body of deceased Ram Singh. Learned trial court believed the version of these two witnesses only against accused-appellants and disbelieved against remaining eight accused. The trial court observed that their statements with regard to allegations against those accused not being clear and unspecific, do not carry any weight and are not believable.

25. The trial court castigated the complainant party, especially Kesar Singh and Devendra Singh, of deliberately trying to implicate all the members of the family of the accused party, which finds corroboration from the testimony of Dhan Singh (PW-11), who is an eye witness and has named only Jagdish, Anatram and Shanti, and did not name any other accused present on the scene of occurrence. Surendra Singh (PW-13), in the cross-examination, has alleged that Amar Singh, Vijay Singh, Samay Singh, Bhuri, Sheela, Babli and Jagdish subjected Kesar Singh to beating, which led to injuries on his leg, whereas Kesar Singh himself has not made any such allegation against Bhuri, Sheela and Vijay. Injured Kesar Singh has received only one injury on his leg, which he has attributed to Jagdish. The trial court noted that accused Gopal was aged 18 years, Vijay was aged 21 years, Sheela was aged 19 years, Bhuri was aged 18 years. The trial court thus found the charges against accused Sher Singh, Vijay, Samay Singh, Gopal, Smt. Gulab, Smt. Babli, Kumari Sheela and Kumari Bhuri, not proved beyond reasonable doubt, and held them entitled to benefit of doubt and accordingly acquitted them.

26. When we examine the case of Amar Singh, we do not find any distinction between his case and the case of accused Sher Singh, who has been acquitted of the charges because as per FSL Report (Exhibit P-40) lathi recovered at the instance of Amar Singh vide Exhibit P-12 has been found containing blood of group A, which matched with that of deceased Ram Singh. And lathi recovered at the instance of Sher Singh vide Exhibit P-25 was also found to contain blood of group A. Their case stands at par not only from FSL Report but also on the screening of statements of eye witnesses. Kesar Singh (PW-1) has not made any specific allegation against Amar Singh as far as deceased is concerned. All that has been stated lastly by him is that after Jagdish, Shanti and Anatram inflicted blows by farsa, kulhari and tanchiya on the head of deceased Ram Singh and when he sat down, all other accused started beating him with lathis. Exactly similar allegation has been made by Devendra Singh (PW-2). We do not find any distinction between the cases of Amar Singh and that of Sher Singh, who has been acquitted and the State has not come up in appeal against his acquittal and that means it has also accepted the correctness of the findings recorded by learned trial court on that aspect.

27. Moreover, we find that the observations of the trial court, wherein it has mentioned that complainant party itself came forward to engage with accused-party which although fell short of conclusion that they were aggressors, but cumulative reading of all statements of the witnesses clearly show that alleged baada with regard to which the parties were at dispute, was in possession of the accused party. The complainant party could not even prima facie show any claim over that baada. Kesar Singh (PW-1) in cross-examination, has admitted that he does not have any document of title with regard to the said baada, and hence even denied the suggestion that accused wanted to dispossess them from that baada. He has rather stated that baada of the accused was close to pond (talaab). Devendra Singh (PW-2) when given a suggestion in the cross-examination, has denied that any dispute was there between two parties with regard to said baada. He has also denied the suggestion and pleaded ignorance as to whether land of baada was a revenue land. He has stated that he was not aware whether they have any title document over the disputed baada, but admitted that while accused were claiming this baada to be their own, whereas the complainants were claiming this belonging to them. But this baada was in their possession. Learned trial court, however, did not accept this case of the complainant party and acquitted the accused-appellants of the charge not only for offence under Section 379 and 148 but also for offence under Section 341 IPC.

28. What is more, the arrest memo (Exhibit P-41) of Amar Singh indicates that he received injury on left parietal region of the head, therefore, a note was put therein that he had to be subjected to medical examination but no such medical examination report was produced on record. Besides, accused Jagdish also received four injuries as per the note put in his arrest memo (Exhibit P-42); two bruises on the shoulder and back and two abrasions on the head. He too was proposed to be subjected to medical examination, but no MLR has been produced on record. Only MLR (Exhibit D-3) of Sher Singh has been produced on record, according to which he received three injuries; one of which, according to X-ray report (Exhibit D-4) one resulted into fracture. Even though these injuries have not been explained by the prosecution but finds their explanation from the story of the prosecution itself coupled with the finding recorded by learned trial court that it were the complainant party, who first engaged in altercation with accused party, thus implying that they were aggressors and the dispute in between two parties was so severe that not only three persons on the side of complainant party but three persons from the side of accused also received injuries, one of whom received fracture of right humorous bone upon 1/3rd region, which was result of free fight between two groups, which would make them individually responsible for their respective roles. In doing so, accused-appellant Jagdish, who, in our analysis, has been primarily held responsible for the fatal injury No. 2 caused to deceased Ram Singh, and himself is shown to have received four injuries, two bruises on the shoulder and back and two abrasions on the head. Even though the arrest memo mentions that he would be subjected to medical examination for his injuries, yet the prosecution has omitted to produce any such medico-legal report. If there was fight on both sides, each member of either side must have participated in the incident. Though, cross-case has been registered by the accused-party, but there are cross-versions about the incident and there is no dispute that three of the accused received injuries, wherefore no explanation has been given by the prosecution. Our analysis of evidence thus shows that in that process, accused-appellant Jagdish has exceeded the right of private defence. It is not proved on record that Jagdish in causing injury No. 2 on the head of deceased Ram Singh, acted with premeditation. If accused-appellant Jagdish, in exercise of right of private defence of person, exceeded the power given to him by law, and thereby caused death of Ram Singh, against whom he has exercised such right of private defence of person, without premeditation and without any intention of doing more harm than necessary for the purpose of defence, his case would fall within the purview of Exception 2 of Section 300 of the IPC.

29. We are fortified in taking that view from a recent judgment of the Supreme Court in Pathubha Govindji Rathod and Another v. State of Gujarat - , (2015) 4 SCC 363 [LQ/SC/2015/107] , wherein it was observed by their Lordships that normally right of private defence is not available to either of the parties in incidents of group fighting, but that is not a rule without exception. The Supreme Court in that case noted special feature of that case that accused-appellant was injured, who himself received injury, and by using the firearm, killed one of the rivals. He took the plea of right of private defence from the beginning of trial. Likewise, in the present case, the accused-appellants have set up a specific plea in their statements under Section 313 Cr.P.C. that in fact the complainant party was aggressor and they subjected the members of the accused party to maar-peet and that it was the complainant party, which started the incident and that the accused merely acted in exercise of right of private defence. This suggestion was put by the defence to both the eye witnesses, namely, Kesar Singh (PW-1) and Devendra Singh (PW-2), especially the fact that accused Sher Singh has received fracture in the incident, the witnesses virtually denied any such fact and also denied that they started the incident and that accused acted in exercise of right of private defence.

30. A person faced with injury with a deadly weapon to his life, cannot be expected to weigh in balance the precise force needed to avoid danger. Referring to case of Bhanwar Singh v. State of M.P. - , (2008) 16 SCC 657 [LQ/SC/2008/1278] , the Supreme Court, in State of Rajasthan v. Manoj Kumar - , (2014) 5 SCC 744 [LQ/SC/2014/398] , observed as under,

"15.3. In Bhanwar Singh v. State of M.P., it has been ruled to the effect that for a plea of right of private defence to succeed in totality, it must be proved that there existed a right to private defence in favour of the accused, and that this right extended to causing death; and if the court were to reject the said plea, there are two possible ways in which this may be done i.e. on one hand, it may be held that there existed a right to private defence of the body, however, more harm than necessary was caused or, alternatively, this right did not extend to causing death and in such a situation it would result in the application of Section 300 Exception 2 IPC."

31. In Mohd. Khalil Chisti v. State of Rajasthan - , (2013) 2 SCC 541 [LQ/SC/2012/1116] , the Supreme Court, in Para 42 of the judgment, observed as follows,

"42. The analysis of the materials clearly shows that two versions of the incident adduced by the prosecution are discrepant with each other. In such a situation where the prosecution leads two sets of evidence each one which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Though the accused would have the benefit of such situation and the counsel appearing for the appellants prayed for acquittal of the appellants of all the charges, in view of the principles which we have already discussed, we are of the view that each accused can be fastened with individual liability taking into consideration the specific role or part attributed to each of the accused. In other words, both sides can be convicted for their individual acts and normally no right of private defence is available to either party and they will be guilty of their respective acts".

32. Having held so, we now come to the case of accused-appellants Shanti and Anatram. We may in this connection profitably refer to the judgment of the Supreme Court in State of Rajasthan v. Kishan Singh and Others, supra, wherein the Supreme Court noted that if prosecution witnesses improve upon their evidence at the trial in order to bring their testimony in line with the medical evidence, it becomes doubtful as to who was the author of the fatal injury. Common intention on the part of the accused to cause death of deceased was not made out. The Supreme Court therein held that when the author of the fatal injury becomes doubtful, whether it was one of the accused-respondents or one of the accused acquitted by the trial court, against whose acquittal the State never filed any appeal, it would be difficult to find either of them guilty of causing that injury. The injuries so attributed to them bring their case only under Section 324/34 IPC.

33. But, here in the present case there is one more distinction. Since we have held each of the accused individually responsible for their act, we find that accused-appellants Shanti and Anatram can be, in view of the above, are liable to be convicted for offence under Section 325 IPC simplicitor. We are, therefore, not persuaded to uphold the conviction of accused-appellants with the aid of Section 34 IPC. Each of them would be individually responsible for causing injuries to the deceased/injured.

34. Accordingly, the appeal is partly allowed in the following manner:--

"Conviction and sentence recorded against accused-appellant No. 2 Jagdish under Sections 302/34 IPC is set aside. Instead, he is convicted for offence under Section 304 Part I, IPC, and sentenced to imprisonment for a period of ten years and fine of Rs. 500/- on each count, in default of payment of fine, he shall undergo simple imprisonment for a further period of one month. His conviction and sentence for offence under Sections 323 and 324 IPC is upheld. He is in Central Jail, Sewar, District Bharatpur. He be set at liberty if he has already undergone that much sentence and not required to be detained in any other case.

Conviction and sentence recorded against accused-appellant No. 1 Amar Singh under Sections 302/34 and 324/34 IPC is set aside. Instead, he is convicted for offence under Section 325 and 324 IPC, and sentenced to suffer imprisonment for the period already undergone by him and fine of Rs. 500/- on each count, in default of payment of fine, he shall undergo simple imprisonment for a further period of one month. His conviction and sentence for offence under Section 323 IPC, wherefore also he is sentenced to the period already undergone by him, is upheld. He is on bail. He needs not to surrender.

Conviction and sentence recorded against accused-appellant No. 3 Anatram under Sections 302/34, 323/34 and 324/34 IPC is set aside. Instead, he is convicted for offence under Section 325, 323 and 324, IPC, and on each count, he is sentenced to suffer imprisonment for the period already undergone by him, with fine of Rs. 500/- on each count, in default of payment of fine, he shall undergo simple imprisonment for a further period of one month. He is on bail. His bail bonds stand discharged.

Conviction and sentence recorded against accused-appellant No. 4 Smt. Shanti under Sections 302/34 and 323/34 IPC is set aside. Instead, she is convicted for offence under Section 325 and 323, IPC, and sentenced to imprisonment for the period already undergone by her and fine of Rs. 500/- on each count, in default of payment of fine, he shall undergo simple imprisonment for a further period of one month. Her conviction and sentence for offence under Sections 324 IPC is upheld. She is on bail. Her bail bonds stand discharged."

35. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants, namely, Amar Singh, Jagdish, Anatram and Smt. Shanti are directed to forthwith furnish a personal bond in the sum 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, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, these appellants, on receipt of notice thereof, shall appear before the Supreme Court.