JUDGMENT M. H. Beg, J. - The eight appellants before me have been convicted under Section 304 Part II/149 I.P.C. and sentenced to five years rigorous imprisonment each. They have also been convicted under Section 323/149 I.P.C. and sentenced to one years rigorous imprisonment. They have further been convicted under Section 147 I.P.C. and sentenced to six months rigorous imprisonment. All the sentences were directed to run concurrently. 2. The prosecution case was that three of the appellants namely, Ram Dayal, Badri, and Sheo Dayal were making a channel of water on July 29, 1963 at about 11 a.m. to irrigate their field which lay towards the east of a pond which has been called a Garhai by the witnesses. The field of Ram Dayal, Badri, and Sheo Dayal, who are brothers, practically adjoins the Garhai, and a short channel would have sufficed to bring water from the Garhai to the field Brijlal, son of Mata Badal, whose house is shown at a distance of about 70 paces from the Garhai towards the west of the field, of the three brothers, is said to have come along and objected to the digging of a channel. The three brothers are then alleged to have gone back &to their house and returned armed with lathies, together with the remaining five appellants, namely, Jwala, Onkar, Rameshwar, Bhussoo and Ramdeo, who are all related to the three brothers as their collateral's. It is alleged that they asked Brij Lal not to object, but, when Brij Lal persisted, they all beat Brijlal who, thereupon, raised a hue and cry. This is alleged to have brought Mata Badal P.W. 3 the father of Brijlal and Brijlals brother Raghunath P.W. 4, Visheshwar P.W. 5, and Karedin P.W. 6 to the spot. It is alleged that they were all beaten. The whole occurrence was alleged to have been seen by Devta Din P.W. 1 from his house which was at distance of about 50 paces towards south. Unfortunately, Brijlal, who had a contusion 9" x 7" on the right cheek and an abrasion on the left finger, died as a result of the injury on the head. According to the prosecution case, the injuries upon Raghunath, Visheshwar and Karedin were inflicted after the injuries upon Brijlal and when they tried to intervene. Unfortunately, Brijlal, who had a contusion 9" x 7" on the right cheek and an abrasion on the left finger, died as a result of the injury on the head. According to the prosecution case, the injuries upon Raghunath, Visheshwar and Karedin were inflicted after the injuries upon Brijlal and when they tried to intervene. It is, however, clear that Brijlal, who had a single injury on his head, could not have been attacked by all the eight appellants with lathis as the prosecution witnesses tried to make out. This version is repelled by the medical evidence. Moreover, the prosecution version does not adequately explain the injuries on the bodies of accused Ram Dayal who had five injuries, two of which were on the back and one on the shoulder, on Onkar, who had two injuries, and on Jwala appellant, who had one injury. Karedin P.W. 6 had five injuries, Visheshwar P.W. 5 had 7 injuries, and Raghunath P.W. 4 had six injuries. A first information report was lodged by Mata Badal, the father of Brijlal, deceased, on July 29, 1963 at 5.50 p.m. at police station Baghrai, ten miles from village Pure Dhanao in the district of Pratapgarh where the occurrence is said to have taken place. 3. The defence version, embodied in a first information report lodged at 5.45 p.m. at police station Baghrai on the same day, was that the Garhai was used for irrigating the fields by the accused and others, and that Onkar, Jwala, and Ram Dayal were trying to take water to 'their field as usual when Mata Badal, Brijlal, Visheshwar, Doodhnath, and Karedin came and said that they will not allow them to take water because these three accused had not allowed the rain water to flow through their fields. It is alleged that Onkar and others tried to point out that the water from the Garhai had been taken for a long time and that their crops would be ruined if the water was not taken then. On this, Brijlals side is said to have started abusing and then started to attack Onkar and others. A large number of villagers were alleged to have collected at the place. The first information report on behalf of the accused was filed earlier by Onkar. The defence version was supported by the statement of Ram Lal D.W. 2. 4. On this, Brijlals side is said to have started abusing and then started to attack Onkar and others. A large number of villagers were alleged to have collected at the place. The first information report on behalf of the accused was filed earlier by Onkar. The defence version was supported by the statement of Ram Lal D.W. 2. 4. The trial court discarded the prosecution case that Brijlal and his relations were in possession over the Garhai. It accepted the defence version that the Garhai was used commonly by all the villagers. The Garhai practically adjoins the field of Ram Dayal and was likely to have been used by the accused persons as the trial court itself found. The trial court, however, held that neither the accused nor the complainant Mata Badal and his family had established any right to use the water. It held that the Garhai had vested in the Gram Samaj after the abolition of zamindari. The trial court did not determine who began the attack. It only tried to determine the question as to who had participated in the fight. It then came to the conclusion that both the sides had turned up with fight. It not only convicted the appellants but also convicted Mata Badal P.W. 3, Raghunath P.W. 4, Visheshwar P.W. 5 and Karedin P.W. 6. The judgment of conviction in the cross case was sought to be filed at this stage, but I did not think it necessary to admit it. It is enough to note that the trial court convicted both the sides. In doing so, it appears to have accepted a case which was certainly not set up by the prosecution in the present case. That case was that both the sides had come armed in order to fight and that the fight had broken out suddenly between the two sides. The trial court appears to have rightly concluded that two contending parties had assembled as a result of a quarrel over the taking of water. This was also the defence version. The trial court rejected the defence version that the aggression was begun from the side of Brijlal and Mata Badal. It, however, did not record a finding that the aggression was started by the accused. It seems to have taken the view that, as both the sides fought suddenly, it was not necessary to determine who the aggressor was. The trial court rejected the defence version that the aggression was begun from the side of Brijlal and Mata Badal. It, however, did not record a finding that the aggression was started by the accused. It seems to have taken the view that, as both the sides fought suddenly, it was not necessary to determine who the aggressor was. 5. It was held in Abdul Razzaq v. State, AIR 1960 Allahabad 567 that even where a fight between the two parties, leading to a death, is a sudden one and without premeditation, the trial court is not relieved of its duty to decide who started the fight or who the aggressor was. It should not, by resorting to Exception 4 of Section 300 I.P.C., fail to decide, where it is possible to decide, upon the evidence on record, who the aggressor was. Even if it is not possible to arrive at a clear finding, because of the unsatisfactory nature of the evidence, it cannot assume that both the sides were in the wrong. It was certainly laid down in Jumman v. State of Punjab, A.I.R. 1957 S.C. 469 that self defence cannot be assumed for both the sides, and that, in a case where death takes place as a result of a sudden quarrel without premeditation, the court could record a conviction for an offence covered by Section 300, Exception 4 I.P.C. That decision of the Supreme Court cannot, however, be interpreted to mean that, in every case where the prosecution has not been able to establish aggression by the accused, the accused must be convicted for the mitigated offence covered by Section 300, Exception 4 of I.P.C. In spite of what was pointed out by this Court in Abdul Razzaq v. State (Supra) and in Shubmti and others v. State, 1959 A.L.J. 423 I find that Jummans case (supra) is not infrequently misapplied due to misapprehension as to what it laid down. It is the primary duty of the trial court to arrive at satisfactory findings of fact before attempting to apply the law. 6. It is the primary duty of the trial court to arrive at satisfactory findings of fact before attempting to apply the law. 6. Coming back to the facts of the present case, I find that, quite apart from the fact that the trial court very rightly rejected the prosecution version that Mata Badal and his family were in possession over the Garhai which was being used for taking water by all the villagers, the prosecution witnesses have asserted that Brijlal was attacked by all the eight appellants. This version of the prosecution witnesses is demolished by the medical evidence which was that Brijlal had only one serious injury on his head and that injury was so serious that he must have fallen down. It fractured the bones of his skull anl Brijlal ultimately died of it. The only other injury he had was a minor injury on his left index finger. The prosecution version that Brijlal entered into an argument with the three brothers who were trying to take water by digging a channel, that he came there with the remaining appellants, all armed with lathis and that he went on objecting until he was attacked, seems unnatural. It was not necessary for eight armed men to come along to deal.with Brijlal alone. And, if Brijlal fell, as was to be expected, after the serious injury on his head and was attacked after that, which is evident from the postmortem report, there could be no occasion for Mata Badal (P.W. 3) and Raghunath (P.W. 4) and Visheshwar (P.W. 5) and Kare Din (P.W. 6) to come along, after hearing Gohar and Halla (indicating that some prolonged marpit was going on), and then to participate in the defence of Brijlal in the course of which three of these witnesses are alleged to have sustained their injuries. All these witnesses stated that they came along on hearing the alarm raised by Brijlal who was being beaten. Apart from the fact that this version meant that the witnesses could not see who the initial aggressor was or how the fight started, it appears that they were trying to conceal the fact that they were there from the beginning because they were the aggressors. There was no point in coming to the spot to defend when the fight was over. There was no point in coming to the spot to defend when the fight was over. Even Deota Din (P.W. 1), who claimed to have seen the beginning of the fight from a distance of fifty paces, merely said that the marpit started after the eight appellants had arrived. His statement does not reveal who had started the marpit. The state of injuries on the two sides, with only two injuries on Brijlal, makes it impossible to accept the prosecution version of the occurrence. 7. If the version set up by the prosecution witnesses is unnatural and unworthy of belief, the version set up on behalf of the appellants, through Ram Lal D. W. 2, appears to be acceptable inasmuch as it is in conformity with the medical evidence and the natural course of events. It would be natural to expect and reasonable to infer that a number of persons from both sides would assemble when there is a quarrel on the taking of water. It is, therefore, more likely that the aggression started from the side of Brijlal and Mata Badal as the appellants alleged. Thus, it was possible to determine who the aggressor probably was. That determination should have taken place in favour of the appellants so that this case need not have come up in appeal at all. It should have ended in acquittal in the trial court. 8. I, therefore, allow this appeal and set aside the convictions and sentences of all the appellants. The appellants are on bail and they need not surrender. Their bail bonds are discharged.