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GROUNDS RAISED IN CRIMINAL APPEAL NO.1030/2010 (10) It is submitted by the learned counsel appearing for the appellants that the judgment and sentence passed by the trial Court is against the settled principle of law. The injuries sustained by appellants have not been explained by prosecution which were produced before the trial Court vide ExD5 to ExD9. The case of prosecution is based on interested witnesses despite, the trial Court has erred in convicting and sentencing the appellants. The incident took place in the night and there was no sufficient light and the prosecution has utterly failed to explain the aforesaid situation in the spot map. The case was of free-fight, therefore, provisions under Section 149 of IPC are not attracted. Rather, the overt act of the appellants/accused was required to be considered. Hence, prayed to allow the appeal.

(42) So far as question of free-fight is concerned, in the case of State of Bihar vs. Ishwar Chand Rai and Awadh Bihari Rai, reported in (2008) 3 PLJR 60, it has been held as under:-

''22. This brings me to consider whether it could be a case of free fight as was contended to be the case by Shri Singh. If one visualizes a free fight, one could simply find as to what could it be. A free fight can be a fight between two warring groups of variously armed persons who are out to prove their point right or others' wrong by sheer exhibition of criminal force. Men are armed with dangerous weapons and they have no fixed persons to be targeted, it is all among the adversary who have to be attacked and defeated. Here in such a situation there is never any sharing of common object or acting in furtherance of common intention by persons who slug it out against each other. Sharing of the common object always envisages the pre determination of committing the very offence. Likewise, acting in furtherance of common intention pre-supposes pre-meeting of minds and determining the ultimate aim which a person wants to achieve. In a free fight, there is no common object, there is no pre-concerted sharing of minds and the acts following accordingly. Here an issue which is to be settled could be something different from a common object or common intention which the parties have to prove or disprove or to establish or repel. In most of such cases, it could be sharing of a particular goal by a particular group of persons and acting accordingly to achieve the goal by repelling the adversary's attack and for establishing their supremacy over their adversaries and thus achieving the goal so fixed. In all such cases there could be a group leader who plans every thing and who has the say in all matters, even in fixing the goal, which in most cases is to impart defeat to the adversary group. In such a fight there is attack and counter attack as is in an on-going battle.

23. The Supreme Court in two of their decisions have defined "free fight". In AIR 1954 SC 695 Gajanand v. State of Uttar Pradesh, a similar contention was raised that the two groups of Anjani Nandan and the appellant Gajanand had come on to a particular street and not at the place of occurrence as claimed by the prosecution. Blood marks were found in the street which indicated that the parties had indulged in free fight. The definition of "free fight" given by the Lahore High Court in Ahmad Sher vs. The Emperor AIR 1931 Lah, 513 was approved by the Supreme Court. The Lahore High Court had defined "free fight" as the situation:

(underlining mine) Thus the elements of free fight are that there should be two warring groups and that both groups should be armed with dangerous weapons. The groups should make attack and counter attack without any premeditation, or without having acted in prosecution of the common object which they were to achieve. If the fact situation of any particular case presents this scenario then it could be a case of free fight''. (43) So far as question of self of private defence is concerned, Hon'ble Apex Court in the case of Banwar Singh & Others vs. State of Madya Pradesh, reported in (2008) 16 SCC 657 has held as under:-