JUDGMENT V.G. Oak, J. - These two connected appeals have been filed by three persons, Allahdia, Mohammad Saddiq and Lakhan Singh, who have been convicted by the learned Sessions Judge of Bijnor under Sec. 304 and 323 read with Sec. 34, I. P. C. Allahdia and Mohammad Saddiq have been sentenced to imprisonment for life under Sec. 304134, I. P. C. Lakhan Singh has been sentenced to rigorous imprisonment for ten years for the same offence. Each of the three men has been sentenced to rigorous imprisonment for one year under Sec. 323|34, I. P. C. The two sentences have been ordered to run consecutively. 2. According to the prosecution, one Lalu died leaving a good deal of property including a Rathkhana in village Buderan. Allandia accused is a brother of Lalu deceased. Allahdia is a resident of village Malakpur adjoining village Buderan. Lalu's widow Smt. Amiran. There was litigation between Smt. Amiran and Allahdia. She executed a sale deed with respect to the Rathkhana in favour of Idu and his brothers. Idu's brothers are Jamal Uddin alias Jumma, Etwari and Nazir Ahmad. Idu and his brothers took possession over the Rathkhana purchased by them from Smt. Amiran. One morning Idu and his brothers were at the Rathkhana. Thirteen men including the present three appellants attacked Idu and his brothers with lathis in order to take forcible possession over the Rathkhana. When Idu's mother Smt. Mariam intervened, she too was beaten by the assailants. In this way these 13 men inflicted a number of injuries on Idu, his three brothers and their mother Smt. Mariam. Injuries received by Etwari and Nazir Ahmad were serious. They died the same day as a result of their injuries. The village chaukidar lodged a report about the incident at the police station. After investigation the police prosecuted 13 persons for rioting, for murder, and for causing injuries to Idu and others. 3. Most of the 13 accused said that they took no part in beating Idu and his relations. Mohammad Saddiq accused also said that he was not there. The plea of Allahdia accused was that he was in possession over the Rathkhana. Idu and others wanted to take forcible possession over the Rathkhana. They attacked Allahdia with lathis. So Allahdia accused hit back in self-defence. Lakhan Singh accused said that he intervened on seeing the fight between Allahdia, and Idu's party. The plea of Allahdia accused was that he was in possession over the Rathkhana. Idu and others wanted to take forcible possession over the Rathkhana. They attacked Allahdia with lathis. So Allahdia accused hit back in self-defence. Lakhan Singh accused said that he intervened on seeing the fight between Allahdia, and Idu's party. So Lakhan Singh also received injuries. 4. The learned Seniors Judge was of the view that, the case was proved against only three accused, Allandia, Mohammad Saddiq and Lakhan Singh. The Court, however held that the case fell under Sec. 304, I. P. C., and not under Sec. 302, I. P. C. These three accused were, therefore, convicted for causing the death of Etwari and Nazir Ahmad. They were also convicted for causing injuries to Idu and others. The three accused were sentenced as detailed above. The remaining ten accused were acquitted of all the charges. 5. Appeal No. 1632 of 1956 has been filed by Lakhan Singh. Appeal No. 1164 of 1956 has been filed. by Allahdia and Mohammad Saddiq. Mr. L. Chandra appearing for Lakhan Singh informed us that Lakhan Singh died a few days back in jail. So Lakhan Singh's appeal abates. We are now concerned with the appeal of Allahdia and Mohammad Saddiq only. 6. It is common ground that, there was a fight between Allahdia accused and Idu and others in the morning of 11-9-1955. The village chaukidar lodged the report (Ex. P-12) the same day at 4 p.m. It has been proved that the same day Allahdia accused lodged a separate report (Ex. P-31) at 5 minutes after 3 p. m. When Allahdia accused was questioned by the Court about this report (Ex. P-3I) , he said that he had gone to the police station, but his report was not taken down. He said that he was arrested and kept in the lock-up. The report (Ex. P-31) was not his report. However, Charan Singh head constable (P. W. 5) proved that the report (Ex. P-13) was dictated by Allahdia accused at about 3 p. m. It is to be noted that Allahdia's report was lodged about one hour before the village chaukidar lodged his report (Ex. P-12). There was occasion at 3 p. m. to spoil Allahdia's report. We, therefore, accept Charan Singh head constable's statement to the effect that, the report (Ex. P-31) was made by Allahdia accused. 7. P-12). There was occasion at 3 p. m. to spoil Allahdia's report. We, therefore, accept Charan Singh head constable's statement to the effect that, the report (Ex. P-31) was made by Allahdia accused. 7. Medical evidence shows that several persons were injured on the two sides. Jamal Uddin had four injuries. Idu had four injuries. Smt. Mariam received five injuries. Etwari deceased had three injuries in all. Injury No. 1 was a contused would on the front of head. Injury No. 2 was swelling on the right side of head. Injury No 3 was a contused wound on the right forearm. Internal examination showed linear vertical fracture of the right temporal and right frontal bones. Death was clue to shock and haemorrhage resulting from fracture of the skull. Nazir Ahmad deceased had three injuries. Injury No. 1 was a contused wound on the top of head. Injury No. 2 was a contusion on the left wrist. Injury No. 3 was a bruise on the front part of the chest. Upon internal examination, it was found that there was a linear fracture of the left temporal bone, the right temporal bone and the parital bones. Death was due to shock and hameorrhage resulting from the fracture of skull. Nazir Ahmad died at 10.30 a. m. on 11-9-1955. Etwari died that day at 3 p. m. These five persons on Idu's side received 19 injuries in all. 8. On the other side Allahdia accused received three injuries, and Lakhan Singh accused got five injuries. Injury No. I of Lakhan Singh was a contused wound on the middle of the head. Injury No. 2 was a contused wound on the left ear. These two accused received eight injuries in all. 9. It is common ground that, there was a fight between the parties over the question of possession over Rathkhana. So an important question for decision in this appeal is whether Idu or Allahdia was in possession over the Rathkhana on 11-9-1955. The prosecution relied upon the sale deed obtained by Idu and his brothers from Smt. Amiran. In the first place, Smt. Amiran was not the sole heir of Lalu. Secondly, although the property was worth more than Rs. 100/- the sale deed was not registered. These were defects in the sale deed obtained by Idu and his brothers. Prosecution witnesses stated that Idu and his brothers were in possession. In the first place, Smt. Amiran was not the sole heir of Lalu. Secondly, although the property was worth more than Rs. 100/- the sale deed was not registered. These were defects in the sale deed obtained by Idu and his brothers. Prosecution witnesses stated that Idu and his brothers were in possession. The learned Sessions Judge pointed out contradictions made by prosecution witnesses on the question of construction of an Osara. Baldeo Sahai (D. W. 4) is Lekhpal of the village. He stated that he had seen Allahdia accused sitting very often at the Rathkhana. The oral evidence produced by the prosecution on the question of possession is not particularly inspiring. 10. However, the learned Sessions Judge relied upon the report (Ex. P-31) made by Allandia accused himself. In that report (Ex. P-31) Allahdia dictated as follows:- "The accused persons (Etwari and others) lived in my Rathkhana for the last 15 or 20 days. My Bhawaj Amiran had kept them (the accused persons). Today at 9 O'clock when I asked them to vacate the Rathkhana then all of them (the accused persons) beat me. This was a clear admission by Allahadia accused to the effect that Etwari and his brothers were living in the Rathkhana for 15 or 20 days prior to 11-9-1955. 11. Mr. J. S. David appearing for the appellants contended that, the report (Ex. P. 31) was not admissible in evidence. Reliance was placed upon Nisar Ali v. State of U. P., A.I.R. 1957 S.C. 366 In that case Nisar Ali was the appellant before the Supreme Court. His co-accused Qudratullah had made a report with the police. The question arose whether that report could be admitted in evidence. Their Lordships observed at page 367 thus:- "An objection has been taken to the admissibility of this report as it was made by a person who was a co-accused. A first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Sec. 157, Evidence Act, or to contradict it under Sec. 145 of that Act. It cannot be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses. In this case, therefore, it is not evidence." 12. It cannot be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses. In this case, therefore, it is not evidence." 12. The observation "it cannot be used as evidence against the maker at the trial if he himself becomes an accused" is likely to create an impression that, a report made by Allahdia accused can never be used in evidence against him. But it must be noted that, their Lordships, in Nisar All's case', were considering the question whether a report made by Qudratullah accused could be utilised against Nisar Ali co-accused. It was held that Qudrat Ullah's report could not be so used. Those observations have, therefore, to be understood in the context of that case. Their Lordships had no occasion to consider whether the report made by Qudratullah could be used against Qudratullah himself as an admission. 13. We see no difficulty in receiving the report Ex. P-31 as an admission against Allahdia, who made the report. In Ex. P-31 Allahdia clearly conceded that, Etwari and his brothers were living in the Rathkhana for two or three weeks before the date of the fight. It may be noted that Rathkhana is situated in village Buderan. Idu and his brothers were living in village Buderan just in front of the Rathkhana. The Rathkhana had no door or shutters. It was quite easy for Idu and his brothers to occupy the Rathkhana. On the other hand Allandia accused is a resident of village Malakpur. It was difficult for him to retain possession over the Rathkhana. In view of Allandia's admission contained in Ex. P-31 and the circumstances of the case, we agree with the learned Sessions Judge that, Idu and his brothers had entered into possession over the Rathkhana some time before the day of the fight. In other words, Idu and his brothers were in possessions over the Rathkhana on 11-9-1955. It may be that the title of ldu and his brothers was weak. But in the present case we are mainly concerned with possession, and not title. If Idu and his brothers were in peaceful possession over the Rathkhana for two or three weeks, Allandia accused had no right to take possession over the Rathkhana by using force. Allahdia was the aggressor. Allandia had no right of private defence. 14. But in the present case we are mainly concerned with possession, and not title. If Idu and his brothers were in peaceful possession over the Rathkhana for two or three weeks, Allandia accused had no right to take possession over the Rathkhana by using force. Allahdia was the aggressor. Allandia had no right of private defence. 14. The prosecution examined five persons as eye-witnesses of the occurrence. The learned Sessions Judge found this oral evidence unreliable. That was why it became necessary to acquit most of the accused persons. Allahdia admitted his fight with Idu's party. Lakhan Singh also admitted his presence there. He received a number of injuries. As regards Mohammad Saddiq accused the learned Sessions Judge observed:- "He is Allahdia's son. Though he was not injured but his presence in the marpit is admitted by Allahdia himself in his report Ex. P-31." 15. It seems that the learned Sessions Judge convicted Mohammad Saddiq accused, because his presence was admitted in the report (Ex. P-31) made by Allahdia accused. Now, as explained in Nisar All's case quoted above, the report (Ex. P-31) made by Allahdia accused could not be used in evidence against his co-accused Mohammad Saddiq. It makes no difference merely because Allahdia and Mohammad Saddiq are father and son. If we exclude the report (Ex. P-31) as regards Mohammad Saddiq accused, his case appears to be almost similar to that of the ten accused who have been acquitted. The case has not been proved against Mohammad Saddiq accused. It has been proved that Allahdia and Lakhan Singh jointly attacked Idu, his brothers and Smt. Mariam. The attack appears to have been made in furtherance of the common intention to take forcible possession over the Rathkhana. So Sec. 34, I. P. C., is applicable: 16. The question arises whether the case falls under Sec. 302, I. P. C. or under Sec. 304, I. P. C. It is true that two persons Etwari and Nazir Ahmad died in this incident. However, it is to be noted that, two accused also received injuries in the fight. This was a fight between the two parties with lathis. Etwari and Nazir Ahmad were alive for a few hours after receiving their injuries. Each of them received only three injuries. The learned Sessions Judge remarked that the assilants did not intend to cause death. That view appears to be correct. This was a fight between the two parties with lathis. Etwari and Nazir Ahmad were alive for a few hours after receiving their injuries. Each of them received only three injuries. The learned Sessions Judge remarked that the assilants did not intend to cause death. That view appears to be correct. The court, however, held that the case fell under Part I of Sec. 304, I. P. C. If intention to cause death is ruled out, the prosecution had to prove that the offenders intended to cause such bodily injury as was likely to cause death, in order to bring the case under Part I of Sec. 304, I. P. C. considering the circumstances under which Etwari and Nazir Ahmad were beaten by Allahdia and Lakhan Singh accused, it seems doubtful whether the accused intended to cause such bodily injury as was likely to cause death. When the offenders struck Nazir Ahmad and Etwari with lathis on their heads and caused fractures of skull bones, the offenders must have known that their act was likely to cause death. So the case falls under paragraph 2 of Sec. 304, I. P. C. Since two persons were killed this appears to be a fit case for awarding the maximum sentence of imprisonment under paragraph 2 of Sec. 304, I. P. C. in spite of Allahdia's old age (60) years. Allahdia's conviction under Sec. 32334, I. P. C. is also proper. The two sentences may be made concurrent. Mohammad Saddiq accused must be acquitted of both the charges. 17. Appeal No. 1632 of 1956 filed by Lakhan Singh is abated. 18. Appeal No. 1164 of 1956 is partly allowed. We alter Allahdia's conviction from paragraph I of Sec. 304 to paragraph 2 of Sec. 304, I. P. C, read with Sec. 34, 1. P. C. Under Sec. 304/34, I. P. C. we sentence Allahdia to rigorous imprisonment for ten years. His conviction and sentence under Sec. 323/34, I. P. C. will stand. The two sentences passed upon Allahdia for the two offences shall run concurrently. We acquit Mohammad Sadiq of the charges under Sec. 304/34 and 323/34, I. P. C. Mohammad Saddiq shall be released immediately, unless he is required in any other case.