JUDGMENT S.D. Khare, J. - The appellants before us are Daryao Singh, his son Attar Singh and two others, namely, Nafey Singh and Raj Singh, both sons of Sukha (deceased) and nephews of Daryao Singh. Lekha, a brother of Daryao Singh, was also prosecuted and case against him committed to the court of Sessions but he died before the trial started. All the four appellants have appealed against their conviction under Section 302 and 325 both read with Section 149, I. P. C. and Section 148, I. P. C. and a sentence of life imprisonment to each for the offence of murder and of two years' rigorous imprisonment to each for the remaining two offences. All the sentences were ordered to run concurrently. 2. The person who lost his life was Chandan, a collateral of the appellants and a resident of village Raispur, within Police Circle Ghaziabad, district Meerut. Four other persons, namely, Ranbir (P. W. 1) , Kirpal (P. W. 3) , Mahendra (P. W. 10) and Richpal (P. W. 11) , all sons of Chandan (deceased) also received injuries at the time of the occurrence which took place on 24th June, 1964, at about 6 p.m. near harrat and the houses of the parties. The prosecution case briefly stated was that there was a harrat (Persian wheel) fixed in a well at a very small distance from the houses of the parties and both the parties were entitled to irrigate their fields from that harrat. Daryao Singh and Lekha (deceased) had, however, not paid their share of money spent in the repairs of the harrat and, therefore, Chandan and his sons were not prepared to allow them to use the harrat till they had paid their dues. At the time of the occurrence Chandan and his sons were using the harrat when Nafey Singh armed with spear, Raj Singh armed with a Bhuri and the remaining three accused persons armed with lathis arrived there and expressed their intention to use the harrat. They were told that they had not paid their dues for the repairs of the harrat and on hearing the same they started beating Chandan and Kirpal with the weapons which they had. 3. They were told that they had not paid their dues for the repairs of the harrat and on hearing the same they started beating Chandan and Kirpal with the weapons which they had. 3. The first information report of the occurrence was lodged by Ranbir Singh (P. W. 1) , at Police Station Ghaziabad the same night at 11.45 p.m. The motive for the crime and the occurrence as it had taken place were mentioned in that report. However, it was not mentioned therein that any of the accused persons was armed with a spear or a Bhuri. According to the first information report all the accused persons were armed with lathis. The name of two witnesses only, namely, Nathan Singh (P. W. 7) and Srichand, son of Pirthi Jat (P. W. 12) were named in the first information report as eye witnesses of the occurrence. 4. All the five injured persons were taken to the police station. Chandan, who subsequently died, appeared to be in his senses at the time the first information report was lodged. Head-constable, Raghubir Singh (P. W. 8) who recorded the first information report, noted in the General Diary the injuries of all the injured persons. He could at that time notice only one injury on the right arm of Chandan, who informed the head-constable that he was suffering from pain all over the body. Dr. N. K. Mittal (P. W. 2) Medical Officer, Ghaziabad Hospital, examined the injuries of Chandan and others from 12.30 a.m. during the same night and found that Chandan had received five injuries out of which one was an abrasion, two were incised wounds and two contusions. Kripal had received four injuries out of which two were contused wounds, one an abraded contusion and the last injury a swelling. Ranbir Singh had received three injuries all of which were contusions. Richpal had also received three injuries consisting of one lacerated wound, one contused wound and one contusion. Mahendra had only one injury which was a contusion. One of the injuries received by Kirpal found to be grievous (vide the statement of Dr. Surjit Singh P. W. 4) , involving fracture of left 5th metacarpal bone and right clavicle. 5. It appears that two of the accused per-sons, namely, Daryao Singh (appellant) and Lekha (deceased) had also received injuries at the time of the occurrence. One of the injuries received by Kirpal found to be grievous (vide the statement of Dr. Surjit Singh P. W. 4) , involving fracture of left 5th metacarpal bone and right clavicle. 5. It appears that two of the accused per-sons, namely, Daryao Singh (appellant) and Lekha (deceased) had also received injuries at the time of the occurrence. They had gone straight to the hospital at Ghaziabad and were examined by Dr. N. K. Mittal (P. W. 2) on 24th June, 1964, at 9 p.m. vide Injury Reports (Exs. Kha 1 and Kha 2) . Daryao Singh had received 12 injuries consisting of two incised wounds, one lacerated wound, three contused wounds, two abraded contusions, two contusions and two swellings while Lekha had received six injuries out of which one was an incised wound, one a contused wound, one a lacerated wound, one a swelling and the remaining two contusions. In the opinion of the doctor all the injured persons f both the sides could have received the injuries at the time of the occurrence. The injuries received by Daryao Singh were of a serious nature. He had sustained three fractures also as a result of those injuries. 6. The Investigating Officer did not recover any blood from the place of occurrence. 7. The prosecution relied on the testimony of 8 eye witnesses of the occurrence. Out of them four, namely, Ranbir (P. W. 1) , Kripal (P. W. 3), Mahendra (P. W. 10) and Richpal (P. W. 11) had received injuries at the time of the occurrence. Both the witnesses named in the F. I. R. namely, Mathan Singh (P. W. 7) and Srichand, son of Prithi Jat (P. W. 12) were examined. Mathan Singh supported the prosecution case while Srichand (P. W. 12) was declared hostile. The other witnesses, namely, Srichand, son of Mohkam (P. W. 5) and Jamuna Das (P. W. 9) who were not named in the first information report, were also examined by the prosecution in support of its case and supported the prosecution case. 8. Daryao Singh, while explaining the circumstances appearing against him, stated that at the time of the occurrence he was using the harrat when Chandan arrived there and asked him not to use it. 8. Daryao Singh, while explaining the circumstances appearing against him, stated that at the time of the occurrence he was using the harrat when Chandan arrived there and asked him not to use it. According to the explanation furnished by the accused, Chandan went back to his house and then came back to the harrat accompanied by his four sons one of whom namely, Mahendra, was armed with a Buri and started beating Daryao and Lekha, who wielded their la this in the exercise of the right of private defence. He further explained that at the time of the occurrence Chandan had received only one injury on his wrist and all other injuries must have been got manufactured for the purpose of the case. The remaining three appellants, namely, Nafey Singh, Raj Singh and Attar Singh did not admit their presence at the time of the occurrence and explained that they had been falsely implicated because one of them happened to be the son and the remaining two the nephews of Daryao Singh. One witness, namely, Ratan Singh (D. W. 1) was examined in support of the defence case. 9. The learned Additional Sessions Judge, after having considered the entire evidence on record, arrived at the conclusion that the prosecution witnesses are reliable and no reliance whatsoever could be placed on the testimony of the defence witness. He, therefore, convicted and sentenced all the appellants as mentioned earlier. 10. The main point for consideration in this appeal is whether the prosecution had succeeded in establishing that the appellants were the aggressors. 11. It is significant to note that in the first information report no attempt was made to explain how Daryao Singh and Lekha had received injuries at the time of the occurrence. However, at the stage of evidence Ranbir (P. W. 1) stated that at the time he and other members of the complainant's party were attacked he snatched the lathi from Daryao Singh and Mahendra (P. W. 10) succeeded in snatching away the spear held by Nafey Singh and they used those weapons in exercise of the right of private defence. The explanation given by Ranbir (P. W. 1) as to how Daryao Singh and Lakha had received injuries at the time of the occurrence is far from convincing. The explanation given by Ranbir (P. W. 1) as to how Daryao Singh and Lakha had received injuries at the time of the occurrence is far from convincing. It is also significant that the complainant was not able to deposit the spear which Mahendra, a member of the complainant's party, had succeeded in snatching away from Nafey Singh (appellant) . 12 The prosecution case that Nafey Singh was armed with a spear and Raj Singh with a Buri appears to have been developed at a later stage. It has already been mentioned that at the time the first information report was lodged all that was mentioned therein was that the assailants were armed with lathis. 13. The presence of the injured witnesses at the time of the occurrence cannot be doubted. However, their testimony regarding the origin of the fight cannot be regarded to be reliable. It is apparent that they could not be expected to have admitted (even though that might have been a fact) that they had started the fight. Out of the remaining four eye witnesses of the occurrence, two namely, Srichand (P. W. 5) and Jamuna Das (P. W. 9) were not named in the first information report. According to their own showing, they were chance witnesses of the occurrence and their presence at the time and place of occurrence appears to be doubtful. Mathan Singh (P. W. 7) is a collateral of the complainant. He has frankly admitted during the course of cross examination that he was on inimical terms with Daryao Singh. He too was a partisan witness. The statement made by Srichand (P. W. 12) was shaky and he was declared hostile. 14. From what has been stated above it is clear that the prosecution could only examine partisan witnesses in support of its case regarding the origin of the fight. The quarrel between the parties took place on the question of the right of Daryao Singh and the members of his family to irrigate from the common harrat. Chandan and his sons were not prepared to allow him to irrigate from that harrat unless he had paid up all his dues. In the circumstances members of any of the two parties could be the aggressors. The motive itself does not furnish any clue as to which particular party must have been the aggressor. 15. Chandan and his sons were not prepared to allow him to irrigate from that harrat unless he had paid up all his dues. In the circumstances members of any of the two parties could be the aggressors. The motive itself does not furnish any clue as to which particular party must have been the aggressor. 15. It appears that none of the parties had been able to irrigate its fields by the time the occurrence took place. There is nothing in the statement of the Investigating Officer to show that the fields of any of the two parties had been irrigated from the harrat in question before the occurrence took place. There is, therefore, no circumstantial evidence in support of the averments made by the prosecution witnesses that Chandan and his sons were using the harrat when the accused persons (appellants) came and started beating them. 16. A perusal of the first information re-port would show that the occurrence took place immediately after there had been an altercation between the members of the two parties. However, at the stage of evidence the prosecution tried to improve upon its case by leading evidence to show that in the beginning only one of the appellants had gone to ask Chandan to allow him to use the harrat and upon Chandan's refusal he had gone back to his house and brought the remaining accused persons with him. 17. It is most unfortunate that during the fight arising out of a trivial matter one person, namely, Chandan has lost his life. The external injuries received by Chandan did not appear to be of a serious nature. The two incised wounds on the left eyebrow and on the bridge of the nose were of very small size and had not caused the fracture of any bone. The death was due to shock and intra cranial haemorrhage. Dr. B. N. Chakarvarti (P. W. 6) , who performed the post mortem examination, frankly stated that none of the external injuries appeared to be serious but there had been subdural haemorrhage as a result of which blood had collected beneath the brain. There is nothing definite in the statement of the doctor to indicate that any of the two injuries appearing on the face of Chandan could be responsible for the subdural haemorrhage. According to Modi's Medical Jurisprudence and Toxicology, 14th Ed. There is nothing definite in the statement of the doctor to indicate that any of the two injuries appearing on the face of Chandan could be responsible for the subdural haemorrhage. According to Modi's Medical Jurisprudence and Toxicology, 14th Ed. P. 274 subdural haemorrhage occurs when blood collects in the subdural space between the dura matter and the arachnoid as a result of rupture of the dural venous sinus, or a cortical vein if the arachnoid has been torn, or lacaration of the brain. According to Modi, subdural haemorrhage sometime occurs without fracture of the skull from slight blow on the head or from a fall. The haemorrhage occurs slowly and is localised in a small area, but is usually diffused over both the cerebral hemispheres, and tends to gravitate to the base of the brain. 18. In the circumstances it is not very clear that in the case of Chandan the subdural haemorrhage was the result of any of the two injuries appearing on his face. 19. In view of the fact that oral evidence led by the prosecution-is of partisan nature and the origin of the fight cannot be ascertained from the facts and circumstances of the case it is difficult to hold that the appellants were the aggressors. The probability that they were attacked first and that they caused injuries to Chandan and others in -..exercise of the right of private defence cannot be ruled out. All the appellants are, - therefore, entitled to benefit of doubt and acquittal. 20. The appeal is allowed. The conviction and sentence of all the four appellants, namely, Daryao Singh, Nafey Singh, Raj Singh and Attar Singh under all the counts are set aside. They are on bail. They need not surrender. Their bail bonds are discharged.