JUDGMENT H.P. Asthana, J. - The Appellants Jai Narain, Dulli and Radhey, who are brothers, have been convicted u/s 304, IPC read with Section 34, IPC and have been sentenced to three years' rigorous imprisonment by the learned Sessions Judge of Mathura. Jai Narain has been further convicted u/s 323 and 325, IPC and has been sentenced to one year's rigorous imprisonment u/s 325, IPC and nine months' rigorous imprisonment u/s 323, IPC which sentences have been made concurrent. Radhey has also been convicted u/s 323, IPC and has been sentenced to nine months' rigorous imprisonment which sentence of his has been made concurrent with the sentence u/s 304/34, IPC. 2. It appears that P.W.6 Bhandol had lent some money to the accused sometime before the occurrence. He made repeated demands for the payment but the debt was not paid. It is said that on 20-11-1953 at about sunset 'when the accused were sitting on the chabutra near the houses of the parties Bhandol demanded the payment of the loan. The accused expressed their inability to pay it in cash and offered to give their field or cattle in payment. Bhandol insisted on cash payment. There was an altercation between the accused and Bhandol which led to exchange of abuses. It is said that the accused Jai Narain struck a lathi blow on the leg of Bhandol as a result of which he fell down and he was be laboured with lathis by the other accused. He. raised an alarm which attracted the attention of his brother Mahipal who was attending to his bullocks nearby. Mahipal ran to the help of Bhandol and he too was beaten with lathis by the accused and received a number of injuries. On their alarm their cousin Nawal ran to-their help and while he was still in the lane close to the chabutra the accused who were on the chabutra attacked him with lathis and felled him down on the ground. He died shortly afterwards. The accused then ran away. A report of the occurrence was made by Mahipal the next day on 21-11-1953 at 7-30 in the morning at P.S. Shergarh which is at a distance of about six miles from the place of occurrence. The accused were named in the report. He died shortly afterwards. The accused then ran away. A report of the occurrence was made by Mahipal the next day on 21-11-1953 at 7-30 in the morning at P.S. Shergarh which is at a distance of about six miles from the place of occurrence. The accused were named in the report. The dead body of Nawal was also taken to the police station After the report the Station Officer Sri Joti Prasad prepared an inquest report and then sent the dead body of Nawal to the Dist. Hospital of Mathura for post-mortem examination. Mahipal and Bhandol who were also injured were also sent for medical examination. The post mortem examination on the dead body of Nawal was performed by Dr. Raghuvesh Prasad on 22-11-1953, a 3 p.m. He had two external injuries consisting of a contusion and a contused wound. The contusion was 5" x 3" on the top of the scalp and the contused wound was 2" x 3/4 x on the upper forehead on the right side. Blood was coming out from the mouth, nose and ears. The internal examination disclosed the fracture of the frontal parietal and both temporal bones with the depressed piece in the centre of the parietal and frontal bone. The death was due to shock and haemorrhage as a result of the injuries received by him. Mahipal was examined by Dr. N.S. Bhatnagar on 23-11-1953 at 11 a.m. in the morning. He had one contused wound and three contusions. The contused wound was 1" X 1/2" scalp deep on the back of the head on the right side. The contusions were on the chest and right forearm. Bhandoll was examined on 22-11-1953 at 1 p.m. by Dr. R.P. Mathur, incharge Sadar Hospital, Mathura. He lad eight injuries on this person consisting of two contused wounds, five contusions and one abrasion. One of the contused wound was on the front of left leg and the tibia and fibula were fractured and the other contused wound was 1/2" above the former one. The abrasion was on the left ring finger and the contusions were on the right scapula, right lower back, (eff arm and loft middle finger. 3. The accused who were named in the report could not. be arrested. They surrendered themselves on 27-11-1953 and after the necessary investigation. they were sent up for trial. The abrasion was on the left ring finger and the contusions were on the right scapula, right lower back, (eff arm and loft middle finger. 3. The accused who were named in the report could not. be arrested. They surrendered themselves on 27-11-1953 and after the necessary investigation. they were sent up for trial. The accused Jai Narain and Har Bhajan in their statements before the committing court denied their presence on the scene of occurrence, The stated that they were not even present in the village. Jai Narain could not say why he had been falsely implicated in the case. Har Bhajan stated that he had been implicated for no fault of his and that the remaining accused were his brothers. 1 before the learned Sessions Judge Jai Narain stated that there were two parties in his village, that the prosecution witnesses belonged to Chiraunji's party while he himself belonged to Patwari's party and it was because of the party feeling that he had been implicated in the case. He admitted there that Bhandol and; Mahipal had received injuries and Nawal, was, murdered. Her Bhajan also made somewhat similar statement before the learned Sessions Judge. Dulti stated before the committing court that Nawal Singh,: Bhandol and Mahipal came to his place to demand their money, that there was an exchange of hot words and Nawal Singh dealt a lathi blow on him and he also gave a lathi blow to Nawal Singh as a result of which he was injured and died. He further stated there that the accused Radhey was with him, that he had no lathi with him and that Bhandol fell on a peg. He did not stick to this statement before the learned Sessions Judge. There be stated that Bhandol, Mahipal and Nawal all started beating him and Radhey with lathis, that he warded off the blows on his lathi and dealt blows in his self-defence, that Bhandol, Mahipal and Nawal all received injuries and Nawal died at about midnight. He further stated there that the occurrence took place at his door. The accused Radhey stated before the I Sessions Judge that his statement was the same as that of Dulli accused. 4. The prosecution examined 13 witnesses: in all in support of the case. P.W.1 Gunia P.W.2 Lala Ram, P.W.3 Chiranji P.W.6 Bhandol and P.W.11 Mahipalpure the eye-witnesses of the occurrence. The accused Radhey stated before the I Sessions Judge that his statement was the same as that of Dulli accused. 4. The prosecution examined 13 witnesses: in all in support of the case. P.W.1 Gunia P.W.2 Lala Ram, P.W.3 Chiranji P.W.6 Bhandol and P.W.11 Mahipalpure the eye-witnesses of the occurrence. P.W.6 and P.W.11 are the victims and admittedly received injuries during the occurrence. P.Ws. 1, 2 and 3 have got their houses closed to the scene of occurrence and reached there on hearing the alarm of Bhandol Mahipal and Nawal Singh when they were being beaten. P.W.1 Gunia is also a distant relation of the parties being three degree removed from P.W.6 Bhandol, P.W.1 to 3 are all named in the first information report which was made soon after the occurrence. P.W.8 is Dr. N.S. Bhatnagar who examined Mahipal and prepared his injury report Ex. P. 11 P.W.12 is the investigating officer. He deposed that after the report he rushed to the scene of occurrence and he found blood stained earth there. He scraped the blood stained earth and packed and sealed it. He did not find any blood in front of the house of the accused or at their door. The other prosecution witnesses are more or less formal and it is not necessary to mention their evidence. 5. The accused in their defence examined one witness, namely, Khamani. His evidence is that a quarrel was taking place over the payment of money between the accused Dulli and Radhey on one side and Mahipal, Bhandol and Nawal Singh on the other, that Bhandol, Nawal and Mahipal who are the aggressors struck Dulli and Radhey accused with lathis whereupon they used their lathis in their self defence. He further stated that both the accused Dulli and Radhey had received injuries and that he did not see any injury on the persons of Mahipal, Bhandol o Nawal. 6. The learned Sessions Judge on a consideration of the evidence was not satisfied that there was any satisfactory evidence against accused Har Bhajan. He, therefore, acquitted him. He, however, found that against the remaining three accused there was sufficient evidence that they had taken part in the occurrence and were the aggressors. He further found that the grievous injuries Found on the person of Bhandol had been inflicted by the accused Jai Narain. He, therefore, convicted and sentenced the Appellants as above. 7. He, therefore, acquitted him. He, however, found that against the remaining three accused there was sufficient evidence that they had taken part in the occurrence and were the aggressors. He further found that the grievous injuries Found on the person of Bhandol had been inflicted by the accused Jai Narain. He, therefore, convicted and sentenced the Appellants as above. 7. It is an admitted fact that there was a quarrel between the parties over the payment of the loan which had been advanced by P.W. Bhandol to the accused persons. According to the defence version the quarrel was between Bhandol, Mahipal and Nawal Singh on one side and the accused Dulli and Radhey on the other. Whereas according to the prosecution all the accused were present at the time of the occurrence and had taken part in it. It has already been stated above that the accused are all brothers. The evidence of the prosecution witnesses is consistent on the point that accused Jai Narain was the first to strike a lathi blow on Bhandol and thereupon the other accused started beating him with lathis, that when his brother Mahipal ran to his help he too was beaten with lathis by the accused persons, that the beating took place at the chabutra belonging to the accused and the complainant party. They further stated that on hearing the alarm of Bhandol and Mahipal Nawal Singh whose house is at a distance of about 20 paces ran to the help of his cousins Bhandol and Mahipal, but before he could climb the chabutra on which Bhandol and Mahipal had been beaten and were lying he was struck with lathis by the accused and fell down in the lane adjoining the chabutra The evidence of P.W.4 Ram Prasad and P.W.12 Sri joti Prasad shows that blood was found in the lane adjoining the chabutra. This evidence supports the prosecution case that Nawal Singh was beaten in the lane adjoining the chabutra and not in front of the door of the house of the accused. If the occurrence had taken place at the house of the accused as is sought to be proved from the evidence produced by them then it would be expected that some blood would be found either at their house or in front of it. If the occurrence had taken place at the house of the accused as is sought to be proved from the evidence produced by them then it would be expected that some blood would be found either at their house or in front of it. There is nothing in the cross-examination of the prosecution witnesses as to why they have falsely implicated the accused persons if really Bhandol, Mahipal and Nawal were the aggressors and had started beating. Their cross-examination does not show that P.Ws. Gunia, Lal Ram and Chiranji have got any enmity against the accused persons. The accused and the complainant are descendants from the same common ancestor and do not allege any enmity between them prior to the date of the occurrence. In the circumstances I do not see any satisfactory reason to discard the prosecution evidence. It is somewhat improbable that the occurrence took place in the manner stated by the accused Dulli and Radhey or by the defence witness Khamani. The evidence of Khamani is that the accused Dulli and Radhey also received injuries in the fight which fact was not alleged by the accused themselves. There is also nothing on the record to show that these two accused received any injury during the occurrence. If Bhandol, Mahipal and Nawal were the aggressors and had started beating the accused Dulli and Radhey with lathis it is somewhat surprising that Dulli and Radhey did not receive any injury whereas Bhandol, Mahipal and NaWal received so many injuries and Nawal died as a result of the injuries received by him. It appears to me from an examination of the prosecution evidence and the injuries found on the persons of Bhandol and Mahipal that there was no pitched fight between the accused on one side and Bhandol, Mahipal and Nawal Singh on the other. It appears to me that Bhandol, Mahipal and Nawal Singh were beaten one by one as they came to the help of one another. 8. On a consideration of the evidence on the record I am of opinion that the version of the occurrence as given by the prosecution witnesses appears to be correct. 9. It appears to me that Bhandol, Mahipal and Nawal Singh were beaten one by one as they came to the help of one another. 8. On a consideration of the evidence on the record I am of opinion that the version of the occurrence as given by the prosecution witnesses appears to be correct. 9. It has been contended before me on behalf of the Appellants that the offence u/s 304, read with Section 34, IPC was not made out against the accused and the basis of the contention is that they had a right to strike Nawal Singh when they saw him approaching them with a lathi in his hand towards the chabutra, because they apprehended grievous hurt or possibly death from him. The evidence of the prosecution witnesses is somewhat inconsistent on the question whether Nawal had a lathi with him when he on hearing the alarm of Bhandol and Mahipal ran to their help P.W.2 Lala Ram, P.W.6 Bhandol and P.W.8 Mahipal stated in their evidence that he had no lathi with him. P.W.1 Gunia and P.W.3 Chiranji stated that he had a lathi with him. Assuming for the sake of argument that Nawal had a lathi with him when he ran towards the chabutra to help his cousins who were being beaten, the question for consideration is whether in the circumstances the accused had a right of self-defence. In my opinion they had no such right because of the fact that they themselves were the aggressors and had beaten Bhandal and Mahipal. Nawal Singh who is related to these two persons on hearing their alarm while they were being beaten was quite justified in running to their help save them. It has been argued that the accused had already finished the beating and Bhandol and Mahipal were lying injured over the chabutra and in the circumstances Nawal Singh had no right to go there with lathi. I am not prepared to accept this contention. It has not been suggested on behalf of the Appellants that Nawal Singh made any attempt to attack the accused persons with the lathi. He may or may not have done it. The mere fact that they saw him going with lathi would not justify them to kill him taking into consideration the fact that they themselves were responsible for the injuries caused to his cousins. He may or may not have done it. The mere fact that they saw him going with lathi would not justify them to kill him taking into consideration the fact that they themselves were responsible for the injuries caused to his cousins. I am, therefore, of the opinion that the accused had no right of self-defence. 10. This appeal is, therefore, dismissed and the conviction and sentence of the Appellants are maintained. The Appellants are on bail they shall surrender to it to serve out their sentences.