JUDGMENT

P. 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 constructed on the boundary line dividing the two fields. It appears that the deceased Kana and his sons Babulal, Chauth Mal, Lalu and deceased Bhanwaria demolished this mud-wall. 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 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. 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 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. 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. Here, according to the prosecution, ended what may be called the first stage of the fight. The appellant and Sohan proceeded towards village and Birdha, Kalyan and one the Benilal, who was also with them retired to the well in their field. 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. Birdha, Kalyan and Benilal also returned to the fray and the second stage of the fight began. 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. The injuries received by the deceased Kana and Bhanwaria were serious and they resulted in the death of both of them. Thus on the side of the deceased Kana, two persons died, namely, the deceased Kana and Bhanwaria and three persons were injured, namely, Babulal, Chauth Mal and Lalu. There were also injuries received by two persons on the side of Birdha and these two persons were Birdha and Sohan. Both sides lodged first information reports 913 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 Mal and Babulal. We are not concerned in the present appeal with the latter case and we need not, therefore, pause to consider what happened in that case. So far as the former case is concerned, Birdha, Sohan, the appellant and Benilal were charged under Sections 147, 148, 302 and 326 read with Section 149 of the Indian Penal Code for rioting, committing murder of the deceased Kana and Bhanwaria and causing grievous hurt with dangerous weapons to Babulal, Chanda, Chauth Mal and Lalu in prosecution of the common object of the unlawful assembly constituted by them.

2. 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 not 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 no party could claim the fight of private defence. So far as the prosecution account of the fight was concerned, it split up the fight into two stages, as pointed out by us while narrating the prosecution case. But this version of the