K.P.S. Sandhu, J. - (1.) THREE Appellants, namely, Sabbu Ram, Jaswant Singh and Bant Singh stand convicted and sentenced as under by the Additional Sessions Judge, Sirsa, vide his order dated 2nd November, 1982: (1) to two years': rigorous imprisonment and a fine of Rs. 500 each or in default, rigorous imprisonment for a further period of six months under Section 326/149 of the Indian Penal Code. (2) to two years' rigorous imprisonment and a fine of Rs. 200 each or in default further rigorous imprisonment for three months under Section 325/149 of the Indian Penal Code; (3) to rigorous imprisonment for six months each under Section 324/149 of the Indian Penal Code; and (4) to rigorous imprisonment for six months each under section 148 of the Indian Penal Code.
(2.) THE occurrence in the present case is dated 14th October, 1981. The eye -witnesses in this case are Milkha Singh, Mehnga Ram, Ranjha Ram and Khushal Chand all of whom were injured in this occurrence. Ranjha Ram and Mehnga Ram are the siris of Milkha Singh P.W. while Khushal Chand is a close relation of Ranjha Ram and Mehnga Ram. All these four prosecution witnesses were prosecuted under Section 302/34 of the Indian Penal Code for committing the murder of Bhag Singh and Kishan Chand brother of Sabhu Ram Appellant and under Sections 325/34 and 324/34 of the Indian Penal Code for causing injuries to Sabbu Ram in a cross case arising out of the same occurrence. They were convicted and sentenced to imprisonment for life by this very Additional Sessions Judge vide his order dated 2nd November, 1982, Both the convictions -one of the prosecution witnesses and the other of the Appellants were recorded on the same day. However, the appeal of these prosecution witnesses was allowed by the Division Bench of this Court vide its order 6th April, 1983, as the case against the Appellants in that appeal was not free from doubt. The prosecution case is that the tubewell of Kishan Chand (since deceased) adjoined the tubewell of Milkha Singh PW. Kishan Chand (since deceased) used to carry a cot from the tubewell of Milkha Singh to which Mehnga Ram PW objected and there was consequently exchange of abuses between Mehnga Ram and Kishan Chand. On 14th October, 1981, Kishan Chand requested Ram Singh, an ex -member of the panchayat, to get the matter compromised. At 7.30 or 8 p.m. Milkha Singh, Mehnga Ram, Ranjha Ram, Khushal Chand PWs and Kishan Chand and Bhag Singh (since deceased), Sabbu Ram, Balwant and Jaswant Singh Appellants gathered at the house of Ram Singh for the purpose. Since no compromise could be effected, Ram Singh suggested that they should meet the next morning for the purpose. The Appellants and Bhag Singh and Kishan Chand deceased left the place. After about fifteen minutes when these prosecution witnesses were going to their houses Bhag Singh (since deceased) gave a lalkara. He and Kishan Chand were armed with gandasis and the three Appellants were armed with lathis. They were alleged to have caused injuries to all the prosecution witnesses with their respective weapons. Mehnga Ram and Ranjha Ram gave injuries to the deceased and Sabbu Ram Appellant respectively with a lathi and sua which they were carrying in self -defence. However, the learned trial Judge did not believe the version as put forth by the prosecution. The plea of the Appellants in this case was that the prosecution witnesses attacked them and caused the death of Bhag Singh and Kishan Chand and gave injuries to Sabbu Ram Appellant and that the injuries were given to the prosecution witnesses by Sabbu Ram and the two deceased while exercising their right to self -defence. The learned trial Judge discarded the versions of both the prosecution and the defence and came to a finding that it was a case of free fight between the parties. Consequently the trial Judge convicted the Appellants in the present case and the prosecution witnesses in the cross -case as aforesaid. This finding of the learned trial Judge is recorded in para 6 of his judgment. It is settled law that the Court cannot make out a new case for the parties and that if it does not believe the prosecution version the benefit of that has to go to the accused persons. I do not think that the learned trial Judge was competent to introduce a new case of his own when he did not agree with the version given by the prosecution, I am further at a loss to understand how the learned trial Judge could convict the Appellants with the aid of Section 149 of the Indian Penal Cede when he himself came to a very definite finding that it was a case of free fight. It is well established that in a case of free fight everybody would be liable for his individual act and that no vicarious liability could be fastened on any one. Consequently I am of the view that the conviction and sentence of the Appellants are not sustainable. I accordingly allow this appeal, set aside their conviction and sentence and acquit them of all the charges.;