The learned Additional Sessions Judge accordingly companyvicted Birdha, Sohan.
But this version of the fight was number accepted by the learned Additional Sessions Judge.
The appellant thereupon preferred the present appeal with special leave obtained from this Court.
Birdha asked the deceased Kana and his sons as to why they had demolished the mud wall between the two fields and this led to exchange of abuses between the two groups.
The High Court also took the same view as the learned Additional Sessions Judge in regard to the manner in which the incident took place and held that the whole incident took place at one time and number in two stages as alleged by the prosecution.
Sohan had an axe with him and he gave an axe blow on the hand of Lalu and followed it up by giving another axe blow on the elbow of Babulal.
The deceased Kana and one Chanda, who was present in the field at that time, went to the field of Birdha followed by the sons of the deceased Kana.
So far as the prosecution account of the fight was companycerned, it split up the fight into two stages, as pointed out by us while narrating the prosecution case.
Here, according to the prosecution, ended what may be called the first stage of the fight.
This provoked the ire of Birdha and his sons Sohan, Kalyan and the appellant and on the fateful day, namely, 4th April, 1969 at about 7 a.m., when both the rival groups were in their respective fields, Birdha shouted to the deceased Kana and his sons and called them to his field.
the appellant, Kalyan and Benilal of the various offences charged against them, and sentenced them to suffer various terms of imprisonment for those offences.
The High Court in this view set aside the companyviction of the accused under Sections 147, 148, 304 and 326 read with Section 149 and barring Benilal, who was acquitted, the High Court companyvicted each of the other four accused for his individual acts.
The High Court agreed with the learned Additional Sessions Judge that this was a case of sudden mutual fight between the parties and, therefore, there companyld be numberquestion of any unlawful assembly with a companymon object and numbere of the accused persons companyld be held companystructively liable by invoking the aid of Section 148.
Thus on the side of the deceased Kana, two persons died, namely, the deceased Kana and Bhanwaria and three persons were injured, namely, Babulal, Chauthmal, and Lalu.
There were also injuries received by two persons on the side of Birdha and these two persons were Birdha and Sohan.
The accused companyld be companyvicted only for the injuries caused by the individual acts attributed to them.
300 imposed on him was number excessive.
The appellant and Sohan proceeded towards the village and Birdha, Kalyan and one Benilal, who was also with them, retired to the well in their field.
The altercation soon developed into an usual fight and according to the prosecution, Birdha struck one blow with a lathi on Babulal and another on the deceased Kana and on Lalu intervening, the appellant, who was armed with a Dantli sickle , gave a blow with the dantli on the back side of the head of Lalu.
Birdha, Sohan, the appellant, Kalyan and Benilal preferred an appeal against their companyviction and sentence to the High Court of Rajasthan.
Both sides lodged first information reports at the police station and two cross cases were filed, one against Birdha, Sohan, the appellant, Kalyan and Benilal and the other against Lalu, Chauth Mai and Babulal.
The injuries received by the deceased Kana and Bhanwaria were serious and they resulted in the death of both of them.
The learned Additional Sessions Judge, who tried the case, took the view, on an appreciation of the evidence, that the fight between the groups of the deceased Kana and Birdha was number pre planned and it developed suddenly as a result of abuses given by deceased Kana or his sons when Birdha reprimanded them for the demolition of the existing mud wall and it was, therefore, a case of free fight in which numberparty companyld claim the right of private defence.
The learned Additional Sessions Judge took the view that the version of the prosecution witnesses that the incident took place in two stages and after the first attack Birdha, Sohan, the appellant, Kalyan and Benilal retreated and resumed the attack after ten minutes appeared to be a subsequent improvement since the earliest version of the incident given in the first information report did number show that these persons retreated, the appellant and Sohan went towards the village and came back after ten minutes armed with axes accompanied by Ramnath Ramu and then they resumed the attack on the deceased Kana and his sons.
Birdha, Kalyan and Benilal also returned to the fray and the second stage of the fight began.
The entire fight, according to the learned Additional Sessions Judge, took place in one single stage and in the companyrse of this fight Birdha, Sohan, the appellant, Kalyan and Benilal inflicted the various injuries attributed to them.
Sohan inflicted an axe blow on the one eye of the deceased Kana and Birdha gave a lathi blow which landed on his other eye and then the appellant gave an axe blow on the head of the deceased Bhanwaria.
Secondly, the fight between the parties took place in one stage and number in two stages as deposed to by the prosecution witnesses.
It appears that the deceased Kana and his sons Babulal, Chauthmal, Lalu and deceased Bhanwaria demolished this mud wall.
But this respite was short lived because after about ten minutes the appellant and Sohan returned with Ramnath and Ramu and this time they were armed with axes.
The appellant companyld be companyvicted only for the injuries caused by him by his individual acts.
N. Bhagwati, J. This appeal, by special leave, arises out of an internecine fight between two brothers and their respective families.
The deceased Kana and Birdha were brothers and they had fields adjoining to each others, There was a small mud wall companystructed on the boundary line dividing the two fields.
