ORDER V.D. Bhargava, J. - (Sept. 11, 1958) These are three connected which arise out of cross cases. 2. In criminal Appeal No. 344 of 1956 Shubrati, Walii alias Nazir, Yasin, Maqbool and Rafic have been convicted under Secs. 325 read with Sec. 149 and 147, I. P. C. and sentenced. to five years rigorous imprisonment under Sec. 325 read with Sec. 149 I. P. C. and again to two year's rigorous imprisonment under the same section. Under Sec. 147, I. P. C. they have been sentenced to one year rigorous imprisonment each. The sentence have been ordered to run concurrently. Appeals Nos. 346 and 374 of 1956 arise out of cross cases, and Qasim, the appellant in the former has been convicted under Secs. 148, 326 read with Secs. 149, 325 read with Sec. 149, I. P. C. and 323 read with Sec. 149 I.P.C. and sentenced to various terms of imprisonment while in the latter Manzoor and Jamil have been convicted under various sections of the Penal Code and sentenced to various terms of imprisonment. 3. The prosecution story in brief as detailed in the case out of which Appeal No. 314 of 1956 arises, was that one Allah Banda was selling ice in front of the shop of one Shabbir in Khalapar at about 6 p.m. Shubrati, one of the appellants went to him for purchasing five seers of ice. Those were the Ramazan days and in the evening they wanted ice for breaking their fast; it was the 8th May 1958. Allah Banda asked him to wait till the other customer, namely Chhidda who was also purchasing ice, had been disposed of. But it is said that Shubrati insisted that he should be disposed of and given ice before all others. Then Allah Banda refused to give him ice in preference to the first customers, and requested Shubrati to purchase ice from elsewhere. But Shubrati had no patience and he started abusing and beating him with fists and kicks. One Manzoor, who is one of the accused in the connected case and who is a relation of Allah Banda, saw the incident from a distance and he intervened. In the meantime, it is said, that the other appellants came and they attacked Allah Banda and Manzoor. Allah Banda received two contused wounds on the head; one was skull deep and the other bone deep. In the meantime, it is said, that the other appellants came and they attacked Allah Banda and Manzoor. Allah Banda received two contused wounds on the head; one was skull deep and the other bone deep. Both were on the upper part of the head, one injury being behind the other. He died of those injuries. There was extensive dotted blood under the scalp and the skull was fractured involving the front and parietal bone and both the temporal bones. Manzoor received 20 injuries out of which six were contused wounds and 10 were contusions; the others were swellings and abrasions. 4. On the side of the accused, Mohamad Yasin had as many as 19 injuries. They also included 4 contused wounds and 12 contusions. Shubrati appellant received a lacerated wound muscle-deep on the right back forearm, a contusion and an incised wound on the right side chest upper part. Maqbool appellant received as many as 8 injuries including 3 contusions and 5 abrasions. The story of the defence was that Maqbool after offering his prayers in the Bucher's Mosque came and asked Manzoor, Shakoor, Wazir, Manga and Qasim not to indulge in cow-slaughter during Ramazan days and create trouble, upon which there was an exchange of abuse between Maqbool and others and there was a fight. 5. So far as the fight is concerned, it is admitted and in which at least Maqbool, Yasin, Shubrati and Walli on the one side and Allah Banda, Manzoor, Jamil and possibly Qasim on the other took part. There might have been other people involved in it, but atleast so far these people on either side are concerned there cannot be the least doubt that there had been a marpit between them as the number of injuries on both sides is considerable. 6. The learned Sessions Judge in this case has come to the conclusion that so far as the motive or the cause of the trouble related by the prosecution in appeal no. 344 of 1956 about the selling of the ice by Allahabanda is concerned, it is incorrect. 6. The learned Sessions Judge in this case has come to the conclusion that so far as the motive or the cause of the trouble related by the prosecution in appeal no. 344 of 1956 about the selling of the ice by Allahabanda is concerned, it is incorrect. Similarly he has held that the other story about the fight having started on Maqbool's asking Manzoor and others not to indulge in cow-slaughter is also incorrect I have myself gone through the evidence and in either case it is very difficult on the prosecution evidence to come to the conclusion that either of them was the aggressor. The reason why the trouble started is shrouded in mystery. Possibly these people may have been involved in some illegal. activity and therefore some quarrel started and both parties really did not want to come with the truth. 7. That there was a fight cannot be denied. The question is: if it is not possible to bring the guilt home to the accused that they were the aggressors, could there be a conviction? In both the cases, on the evidence on the record, it cannot safely be said as a proved fact that the accused were the aggresssors. In that case, the position is very much the same as has been mentioned in the case of Jamman v. State of Punjab, A.I.R. 1957 S.C. 469. 8. In paragraph 24 of the judgment their Lordships said:- "In such a case where a mutual conflict developers and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides? We are of the view that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under section 300, I.P.C. Exception 4." 9. On the one hand if this authority is accepted both the parties in a case of free fight should be convicted. On the other hand in either case it is not possible to bring home the charge to the accused and if would not be safe to convict without there being definite proof that the accused were the aggressors. On the one hand if this authority is accepted both the parties in a case of free fight should be convicted. On the other hand in either case it is not possible to bring home the charge to the accused and if would not be safe to convict without there being definite proof that the accused were the aggressors. This point is likely to arise in numerous cases and there may be difficulty in interpreting this authority of their Lordships of the Supreme Court by this Court as well as by the courts below. I think this is a fit case where a decision by a Bench of this Court should be given for the guidance of the courts below. I would, therefore, refer these three appeals for a decision by a Bench of two Judges. 10. Let the file of this case be laid before the Hon'ble the Chief Justice for constituting a Bench. Bench Decision Srivastava, J.- These three connected appeals can be conveniently disposed of together. Shubrati, Walli alias Nazir, Yasin, Maqbool and Rajiq are the five appellants in Cr. Appeal No. 344 of 1956. Each of them has been convicted under section 3251|49, on two counts and s. 147 I.P.C. Each of them has been sentenced on the first count of the former offence to five years R. I. on the second count to two years R. I. and for the offence under section 147 each has been sentenced to two years R. I. The sentences have been ordered to run concurrently. Qasim is the sole appellant in Appeal No. 346 of 1956. He has been convicted and sentenced under section 148, 326|149, 325|149, 323|149 to two years R. I., three years R. I, two years R. I. and one year's R. I. respectively. All his sentences have been ordered to run concurrently. The third appeal no. 374 of 1956 is on behalf of two persons, Manzoor and Jamil who were co-accused with Qasim in the same case. Manzoor has been convicted under section 148 and Jamil under section 147 I. P. C. Both have also been convicted under sections 326|149, 325|149 and 323|149 I. P. C. For the offence under section 148 Manzoor has been sentenced to two years R. I. and for the offence under section 147 Jamil has been sentenced to one year's rigorous imprisonment. Manzoor has been convicted under section 148 and Jamil under section 147 I. P. C. Both have also been convicted under sections 326|149, 325|149 and 323|149 I. P. C. For the offence under section 148 Manzoor has been sentenced to two years R. I. and for the offence under section 147 Jamil has been sentenced to one year's rigorous imprisonment. Both have been sentenced to three years rigorous imprisonment under section 326|149, to two years R. I. under section 325|149, and to one year's R. I. under s, 323 read with s. 149 I.P.C. Their sentences too have been ordered to run concurrently. 2. Appeal No. 344 arises out of one case and Appeals Nos. 346 and 374 arise out of the cross case. 3. The prosecution allegation in the case out of which Criminal Appeal No. 344 has arisen was that on the 8th of May, 1954 at about 6.30 p. m. Allahabanda was selling ice in front of the shop of one Shabbir in Khalapar P. S. Kotwali district Muzaffarnagar. It was the month of Ramzan. Shubrati came to the shop and wanted to purchase some ice. There were other customers present from before and they were being served. Allahabanda told Shubrati that he would serve him after he had served other customers who were present from before. Shubrati, however, insisted that he should be served first, on which he was told by Allahabanda to make his purchase from elsewhere. Shubrati thereupon began to abuse Allahabanda and started beating him with fists and kicks. Manzoor, who was the brother-in-law of Allahabanda, came to save him, but he also received a beating. In the mean time Maqbool, Habib, Chunia, Yasin, Walli and Rafiq also arrived with lathis and they too started beating Allahabanda and Manzoor. They raised an alarm which attracted Abdul, Razzaq, Saddiq, Jamil, Maqbool and other persons of the Mohalla who came and prevented the fight. The injuries which Allahabanda had received were very serious and he succumbed to them. Manzoor also received injuries. On these allegations seven persons including the five appellants in juries on the head with some blunt appeal No. 344 were prosecuted. 4. The defence which the accused in the above mentioned case raised was that nothing had happened before the shop of Shabbir at all. Manzoor also received injuries. On these allegations seven persons including the five appellants in juries on the head with some blunt appeal No. 344 were prosecuted. 4. The defence which the accused in the above mentioned case raised was that nothing had happened before the shop of Shabbir at all. According to them, what really happened was that Maqbool came out from the mosque known as butcher's mosque on the 8th of May, 1954 at about 7 p.m. and noticed Manzoor, Qasim and certain other persons talking outside about slaughtering a cow. Maqbool asked them not to slaughter any cow at least in the month of Ramzan as it was likely to disturb public peace. An altercation took place in that connection between Maqbool and the other persons and they started absuing Maqbool. Manzoor, who was armed with a dagger, and Qasim, who secured a meat-chopper, Shakoor, Manga, Chena, Khalil, Jamil, Maqbool, Maqsood, Shabbir and Nazir came armed with lathis. They started the marpit and began to assault Maqbool. Shubrati, a cousin, and Yasin, own brother of Maqbool, tried to intervene but they also were beaten. Manzoor was said to have struck Shubrati in the chest with his dagger and Qasim injured the hand of Shubrati with the meat-chopper which has been described as Bugda. Alarm was raised and several person including Haji Bundu, Rakha, Shaft Mohammad and others came to the scene and intervened. The defence which had been raised in this case was the prosecution case in, the other cross-case out of which the other two appeals have arisen. In that case there were 11 persons who were impleaded as accused. 5. It is not disputed that in the incident that had taken Place Manzoor had received no less than 20 injuries. Most of them were contusion and contused wounds. The postmortem examination of Allahabad, who died in the incident revealed that he had two contused wounds on the head. The internal examination of the head and neck revealed that there was extensive clotted blood under the scalp. The vault of the skull was fractured involving the frontal, parietal, and both the temporal bones. There was a big clot of blood between the bones and left side of membranes of the brain and the whole surface of the brain was covered with dark clotted blood. The frontal and middle bones of the base of the skull were fractured. The vault of the skull was fractured involving the frontal, parietal, and both the temporal bones. There was a big clot of blood between the bones and left side of membranes of the brain and the whole surface of the brain was covered with dark clotted blood. The frontal and middle bones of the base of the skull were fractured. Death was due to intracranial haemorrhage caused by injuries on the head with some blunt weapon. 6. The prosecution examined Manzoor, Mohammad Umar, Maqbool Ahmad and Jamil to prove its version of the incident. The accused in that case examined shafin in their defence. 7. In the cross-case evidence was produce to prove that Mohmmad Yaseen, Shubrati and Maqbool Ahmad had received in juries. Mohmmad Yaseen had 19 injuries, most of them being contusion or contused wounds. Shubrati had a lacerated wound on the right hand, a contusion on the right side of the chest. The eye witnesses produced to prove the version put forward by the prosecution were Maqbool, Mohmmad Yaseen, Shubrati, Fateh Ullah, Bala, and Jamil-ur-Rahman. The rival version was sought to be proved by Mohmmad Umar. 8. The learned Sessions Judge, who tried both the cases, held in respect to the version put forward in the case out of which Appeal No. 344 of 1956 has arisen that "The entire story about the quarrel in connection with the sale of ice is unreal improbable and incredible." 9. He also observed: "The result therefore is that part of the prosecution story regarding the quarrel in connection with the sale and purchase of ice near the shop of Shabbir absolutely falls to the ground." 10. He disbelieved the eye-witnesses examined in that case. 11. He also rejected the rival version of the incident which had been put forward in the other case and after disbelieved all the witnesses of the prosecution who had been examined in support of that version as unreliable. He observed:- "Maqbool, therefore, has proved to be an unscrupulous lair and it is much too clear that being interested in his own defence he has wilfully suppressed the true facts. In the circumstances, therefore, I am not convicted that he had desired Manzoor and others not to indulge in cow slaughter and I am sure that this part of the prosecution story is unfounded and false." 12. In the circumstances, therefore, I am not convicted that he had desired Manzoor and others not to indulge in cow slaughter and I am sure that this part of the prosecution story is unfounded and false." 12. Having thus rejected both the version which had been put forward in the two cases, the learned Judge felt that he could not get away from the fact that a marpit had taken place in which Allahbanda and Manzoor had received injuries on one side (Allahabanda having died on account of his injuries) and Yaseen, Shubrati and Maqbool had received the injuries on the other side. He thought that the origin of the marpit was shrouded in mystry and could not be ascertained. He was also of opinion that the marpit had taken place at some place between the mosque and the house of Bundu and Nathu because blood had been found at that place. He was also unable to find as to which of the two parties was the aggressor in the fight. He held that both the sides had concealed the real facts and had not come to Court with the full facts. He also thought that the investigation in both the cases was defective and that the Investigating Officer had not tried to fined out the truth and had sent up the accused recklessly and suppressed the true facts from the Court. He, however, expressed the view that he had no doubt that Manzoor, Qasim and Jamil had taken part in the incident on the one side and that Shubrati, Walli, Yasin, Maqbool and Rafiq had taken part on the other. He therefore convicted these 8 persons for various offences and imposed upon them the sentences already mentioned. 13. The three appeals came up for consideration before Hon'ble V. D. Bhargava, J. And after going through the evidence the Learned Judge was of opinion: "I have myself gone through the evidence and in either case it is very difficult an the prosecution evidence to come to the conclusion that either of them was the aggressor. The reason why the trouble started is shrouded in mystery. Possibly these people may have been involved in some illegal activity and therefore some querrel started and both the parties really lid not want to come with the truth." 14. The reason why the trouble started is shrouded in mystery. Possibly these people may have been involved in some illegal activity and therefore some querrel started and both the parties really lid not want to come with the truth." 14. He too felt that there had been fight and that it could not be found out as to which A the two parties was the aggressor. He thought that the question whether in such circumstance either of the two parties could be safely convicted was an important question which should be decided by a Division Bench. He referred in this connection to certain observations made by the Supreme Court in paragraph 24 of the judgment in the case of Jumman v. State of Punjab, A.I.R. 1957 S.C. 469 The case was therefore referred to a Division Bench and that is how it has come up before us. 15. The appraisement by the Sessions Judge of the evidence produced by both the parties in the two cases has not been questioned before us by the learned counsel for either party, and it is therefore not necessary for us to discuss the evidence which has been definitely rejected by the learned Sessions Judge. We have, therefore to proceed on the assumption that the evidence produced by both the parties was unreliable, that the origin of the fight was not known and that it could not be ascertained as to who was the aggressor and in what circumstances the fight had taken place in which some persons of both parties had received injuries and one had succumbed to the injuries received by him. 16. It appears to be obvious to us that in the circumstances mentioned above it would not be safe to record the conviction of any person. It is a well settled principle of criminal law that an accused can be convicted only when on the evidence produced the court is in a position to come to a definite conclusion beyond the possibility of reasonable doubt that the accused committed the offence with which he stood charged. No conviction can be based on mere possibilities. Nor is it permissible for the court to speculate as to what had really happened. No conviction can be based on mere possibilities. Nor is it permissible for the court to speculate as to what had really happened. If both the parties come to court with untrue facts and conceal the real truth they have themselves to blame and they cannot expect the Court to arrive at any definite conclusion on the unreliable evidence produced either for or against either of the parties. In such a case the Court will certainly attempt to separate the grain from the chaff but only if it is possible to do so. In certain circumstances it may be found to be an impossible task. That is particularly so when the evidence of both the parties is thoroughly unreliable and cannot be accepted even in part with safety. In such a case it is not open to the court to make out a third case which is different from the case set up by both the parties. In such a case the Court can only say that the matter is doubtful in the extreme and it is not possible to arrive at any conclusion one way or the other. The result of such a finding may be that all the persons who stand as accused in the case may have to be given the benefit of doubt. But that cannot be helped. The defective investigation and the conduct of the parties them selves are really responsible for that regrettable result. In such a case there can be no question of recording any conviction. 17. On the findings recorded by the Sessions Judge which have not been seriously questioned before us, therefore, we think it is impossible to uphold the view of the learned Sessions Judge that any of the appellants in the three appeals was guilty of any of the offence with which he stood charged. In these circumstances the only course which should have been followed by the Sessions Judge was to acquit all the persons who were standing their trial before him in the two cases. 18. In this view of the case the question for the decision of which the cases were referred to this Bench does not really arise and need not be decided. 18. In this view of the case the question for the decision of which the cases were referred to this Bench does not really arise and need not be decided. The Supreme Court case to which reference has been made by Hon. V. D. Bhargava, J. in his referring order appears to be clearly distinguishable on facts and the question which has arisen in the present case did not arise in that case at all. In that case a fight had admittedly taken place in which both the parties who had previous long standing enmity with each other had admittedly taken part. On the evidence it could not be ascertained as to who was the aggressor and the learned Judges laid down that in such a case there could be no question of either of the parties acting in the exercise of the right of private defence. In the case of such a free fight the offence committed could be brought under the fourth exception of Sec. 300, I.P.C. if some person had been killed. The facts of the present case which have already been narrated are entirely different. Here, we do not know where the fight took place, how it originated, in what circumstances it came about and what use the real facts. Here each party alleged that the marpit had taken place at a different place and in entirely different circumstances. It is not a case of what is commonly known as a 'free fight' according to either of the parties. Here, therefore, there is no question of the exercise of the right of private defence or the application of the fourth Exception to Sec. 300, I.P.C. 19. Without going into the details in respect of each of the various appellants we may mention a fact which has been brought to our notice by the learned counsel for Qasim, the appellant in Appeal No. 346 of 1956. According to the prosecution case, he was alleged to have been armed with a meat-chopper and to have injured Shubrati on the hand. The medical evidence on the record, however, shows that Shubrati had no injury on his hand which could have been inflicted which a meat-chopper. He had only lacerated wound on the right hand, which according to the doctor, was caused by a blunt weapon. The medical evidence on the record, however, shows that Shubrati had no injury on his hand which could have been inflicted which a meat-chopper. He had only lacerated wound on the right hand, which according to the doctor, was caused by a blunt weapon. He did have a wound on his chest, but, according to Maqbool, that injury on the chest had been caused by Manzoor and not by Qasim. The only injury which Qasim was alleged to have caused being the injury on the hand of Shubrati which was found by the doctor to be caused by a blunt weapon, it becomes very doubtful whether Qasim really participated in the fight as was alleged. 20. In view of what has been said above, the conviction of any of the appellants recorded by the learned Sessions Judge in the two cases cannot be upheld. All the three appeals, therefore, succeed. The conviction and sentences of all the appellants are set aside. All of them are on bail. They need not surrender. Their bail-bonds stand discharged.