KAN SINGH, J —I have before me three appeals. One is by Subhan Khan and it arises out of the judgment of the learned Additional Sessions Judge, Alwar, dated 6-2-70 in Sessions case No. 24 of 1969. Appellant Subhan Khan were found guilty of offence under secs. 148, 304 Part II read with sec. 149,326 read with sec. 149 Indian Penal Code. For the offence under sec. 148 Indian Penal Code each of the accused was awarded 2 years rigorous imprisonment. For the offence under sec. 304 Part II read with sec. 149 Indian Penal Code each of the accused was awarded five years rigorous imprisonment. For the offence under sec. 326 read with sec. 149 Indian Penal Code each of the accused was awarded five years rigors imprisonment and a fine of Rs. 50/-, in default one months further rigorous imprisonment in each case. For the offence under sec. 325 read with sec. 149 Indian Penal Code each of the accused was awarded two years rigorous imprisonment and a fine of Rs. 25/-, in default 15 days further rigorous imprisonment in each case. The substantive sentences of imprisonment were ordered to run concurrently. 2. Criminal Appeals Nos. 164 of 1970 and 183 of 1970 are by convicts in the counter case which was Sessions Case No. 23 of 1959, decided on 6-2-70. The five accused appellants concerned in the two appeals namely, Criminal Appeal Nos. 164 and 183 of 1970 were convicted under secs. 148, 326 read with sec. 149 and 323 read with sec. 149 Indian Penal Code. Each one of them was sentenced to two years rigorous imprisonment under sec. 148 Indian Penal Code. For the offence under sec. 326 read with sec. 149 Indian Penal Code each one of them was sentenced to five years rigorous imprisonment and a fine of Rs. 50/-, in default one months further rigorous imprisonment. For the offence under sec. 323 read with sec. 149 Indian Penal Code each of the accused was awarded six months rigorous imprisonment. All the substantive sentences were ordered to run concurrently. 3. The unfortunate incident incident out of which the two cross cases had arisen took place on 27-2-69 at about 10 or 11 a.m. in the precincts of village Bhoot-Ka-Bas within the jurisdiction of police station Kathumber, district Alwar. All the substantive sentences were ordered to run concurrently. 3. The unfortunate incident incident out of which the two cross cases had arisen took place on 27-2-69 at about 10 or 11 a.m. in the precincts of village Bhoot-Ka-Bas within the jurisdiction of police station Kathumber, district Alwar. Six persons on each side were injured and one Munshi on the side of the complainants in Sessions Case No. 24/1969 lost his life. Each party put the entire blame for the incident on the other assuming for itself the posture of injured innocence asserting that it was the opposite party who attacked the party of the injured in each case and the party of the injured and the complainant in each case had done no harm to the other side. The learned Sessions Judge, who tried both the cases, came to the conclusion that it was a case of free fight between the parties as both the sides had pre-determination to fight and consequently none of the parties could claim the right of private defence. He also observed that it was not necessary to decide as to who was the aggressor, nor was it necessary, in his opinion, to decide as to what was the place of the incident. He also came to the conclusion that from the evidence it could not be held as to which of the accused had caused injuries to which of the injured person on the other side. He concentrated on the existence of injuries on the person of members of each party and came to the conclusion that both the parties were armed with sticks and Farsis or sharp instruments and were determined to measure their strength. To show the approach of the learned Judge I may read a few passages from the judgment. 4. While dealing with the question of the place of the incident this is what he said: "Looking to the nature of the present case it is not necessary for me to find out as to at what place the occurrence took place or as to who was the aggressor party. 4. While dealing with the question of the place of the incident this is what he said: "Looking to the nature of the present case it is not necessary for me to find out as to at what place the occurrence took place or as to who was the aggressor party. It is clear from the evidence that the parties were armed with lathis and pharsis i.e. the accused party in the present case and in the counter case also the complainant party was also armed with lathis and pharsis." Then a little after this passage the learned Judge observed as follows:— "In the instant case both the parties, the complainant and the accused persons met suddenly and fought with each other and in that fight the complainant party suffered more injuries than the accused party." As regards the part played by the individual accused the learned Judge observed as follows:— "The number of the accused is nine and it is in the evidence that all the accused persons gave different blows with lathis and pharsis to different members of the complainant party, but it cannot be ascertained with any reasonable certainty from the prosecution evidence that which one of the accused persons hit on the head of the deceased Munshi or which one of the accused hit Bhondu P.W. 1 which caused grievous injury to him with a sharp weapon. Similarly, it cannot be ascertained with any amount of certainty as to who caused the simple injuries with blunt weapon. Different versions as regards the infliction of blows are given by the individual prosecution witnesses. Therefore, I can only conclude that even though the death has resulted due to the injuries caused in this fight, but the intention could not have been to kill the deceased Munshi." 5. The judgement in the other case is on the same lines. In other words the rationale of the learned Judge is that there were injuries received by both sides & it was a case of free fight. The place of the incident which was material even if it could not be precisely established. It is also immaterial as to who was the aggressor and it was also not immaterial as to what individual injuries had been caused by each one of the accused in either case. The place of the incident which was material even if it could not be precisely established. It is also immaterial as to who was the aggressor and it was also not immaterial as to what individual injuries had been caused by each one of the accused in either case. The entire burden of the two judgments is that there was a free fight between the parties. Since the prosecution version in one case is the defence version in the other, I may now briefly recapitulate the versions of the two parties. 6. In Sessions Case No. 24 of 1969, the prosecution version was that Bhondu and his brother Jumman were cutting Serson in their field and at that time an ox belonging to Nabi Khan trespassed into their field and had done damage to their gram crop. Bhondu protested to Nabi Khan for letting loose his ox. Bhondu, Subhan Khan, Arjun and their partymen then retorted that their ox would be let loose in this manner and it would graze like that. Bhondu then drove away the ox of Nabi Khan and this enraged Nabi Khan and members of his party who were doing Lavni i.e. cutting Sarson in their adjacent field. These persons armed themselves with lathis and Farsis and came to the field of Bhondu and inflicted a number of blows on his head and other parts of the body. Jumman, Munshi and Shomda came to intervene and rescued Bhondu, but they too were beaten by the accused party. Other persons from the party of the accused Nabi Khan then provided the reinforcement and they too joined Nabi Khan and others in attacking Bhondu and his companions who came to rescue him. In the fight Munshi, Shamsher, Bhondu, Jumman, Shondu and Shitab received a number of injuries with lathis and Farsis. Bhondu and other injured persons first went to Govindgarh Dispensary but there unfortunately for them the doctor was not available and hence they came to Alwar hospital. They were all admitted in the hospital. Munshi succumbed to the injuries and died at the Alwar hospital. The death of Munshi was reported by the doctor to police Kotwali, Alwar. On receipt of the message from the hospital Shri Megha Ram, Assistant Sub Inspector of Police (P.W. 14) went to the hospital & prepared the inquest report of the dead body of Munshi. Munshi succumbed to the injuries and died at the Alwar hospital. The death of Munshi was reported by the doctor to police Kotwali, Alwar. On receipt of the message from the hospital Shri Megha Ram, Assistant Sub Inspector of Police (P.W. 14) went to the hospital & prepared the inquest report of the dead body of Munshi. He recorded the statement of injured Bhondu (P.W. 1) and sent it to police station Kathumar Katwali. P.W. 16 Shri Mahavir Singh, Station House Officer, Kathumar, treated Ex. P/l, the statement of Bhondu as the first information report and after registering the case started the investigations. 7. The version of the other party was that on 27-2-69 Arjun, Subhan Khan, Sammi Khan, and Nabi Khan were cutting Sarson crop in their field called Sayedwala. Adjacent to this field was the field of Bhondu and in that field Bhondu, Jumman, Bhondu, Munshi, Shamsher and Shitab were cutting Sarson. Two days previous to the incident there was a quarrel between the parties as regards the damage done to the crop of Arjun, Sammi Khan and others by the cattle of the other party namely, that of Bhondu and others and on that occasion Bhondu and members of his party warned Sammi Khan and others that they would take revenge as and when occasion arose. In order to carry this threat in to practice Bhondu and his party members were alleged to have attacked the party of Sammi Khan and others. Shamsher was armed with Farsi, Munshi carried a Jali and the other persons had lathis. The party of Sammi Khan raised an outcry, when attacked and Nabi Khan and others went to rescue them, but they were also beaten along with Arjun, Sammi Khan and Subban Khan. The complainants in Sessions Case No. 183 of 1959 according to them received a number of in juries and it was on account of intervention of others that they were saved from further harm. These persons got themselves medically examined on 27-2-69 and lodged the first information report at police station Kathumar on 1-3-69. 8. I may now briefly notice the injuries that were received by members of each side. 9. Deceased Munshi., according to Dr. These persons got themselves medically examined on 27-2-69 and lodged the first information report at police station Kathumar on 1-3-69. 8. I may now briefly notice the injuries that were received by members of each side. 9. Deceased Munshi., according to Dr. M.L. Bhargava (P.W.6), in Sessions case No. 24 of 1969, had the following injuries:— (1) Lacerated wound 3 c m. x 1/2 c.m. x bone deep on the top of the scalp 16 c.m. above the right ear. (2) Swelling 13 c.m. x 8 c.m. on the right side of the scalp, just above and behind the right ear. (3) Bruise 7 cm. x 4 cm. on the top of the left shoulder. (4) Bruise 7 c m. x 3 cm. transverse on the posterior and lower part of the left fore-arm, honycropitus felt, fracture of the radius present. On dissection it was also confirmed as fracture of radus at its lower part obliquely. (5) Swelling 6 c.m. x c.m., on the dorsum of the left hand. (6) Bruise 8 c m. x 4 c.m. on the anterior lower part of the left thigh obliquely. (7) Abrasion 1 cm. x linear on the anterior and upper part of the left leg. (8) Lacerated wound 3 c.m. x 8 cm. x bone deep on the anterior and lower J/3rd of the right leg vertically Bonyorapitus folt i.e. fracture of both bones tibia and fibulae present. Confirmed by dissecting the skin and tissues. (9) Abrasion 2 -1/2 cm. x 1-1/2 cm. on the outer and upper part of right leg. (10) Bruise transversely 6 cm. x 3 cm. on the anterior and lower l/3rd part of the right thigh. 10. On opening of the skull the doctor found that there was thick layer of blood clots present under the injuries on the top of the skull and right side of the skull, On removing these blood clots the doctor found that there were fractures of right parietal and temporal bones right side vertical and transverse, making a right angle in shape. This fracture went down causing fracture of temporal bone to the base of the skull. There was then a thick layer of blood clots present on the parietal and temporal area and base of the brain, right side. Blood clots were present inside the brain, right side. This fracture went down causing fracture of temporal bone to the base of the skull. There was then a thick layer of blood clots present on the parietal and temporal area and base of the brain, right side. Blood clots were present inside the brain, right side. In the opinion of the doctor the death of Munshi occurred due to the compression of brain as a result of fractures of pariatal and temporal bones. 11. Shitab had 8 injuries; 3 were on the scalp. Of them one was a lanerated wound and two were incised wounds. He had 4 bruises on the right eye, left leg, part of back on left side and on the back. He had also a lacerated wound on the dorsum of the left hand. The injury on the hand was grievous. 12. Shonin had 9 injuries, 2 were on the scalp and both were incised. He had a lacerated wound on the right fore-arm and a punctured wound on the right leg below the knee and also he had swelling on the left fore-arm and on the right clavical regios. One of the two injuries on the head was found to be grievous and also there was a fracture below the swelling on the left fore-arm. 13. Shamsher had 7 injuries. There were bruises on the left wrist, left leg, right knee, right leg, left arm and on the back. There was a swelling as toe dorsum of the left hand as well. There was a fracture below the bruise on the left wrist. All the other injuries were simple. 14. Jummah had 14 injuries. He had 4 punctured wound 2 on the left leg. He had bruises on the right fore-arm, left thigh, elbow, left fore-arm and right cheek and mandible. He had a lacerated wound on the right eye and also a lacerated wound on the left thumb. Then there was an incised wound on the scalp in the middle and a bruise on the right scapular region. There was a fracture beneath the bruise with swelling found on the right cheek. 15. Bhondu had 3 injuries. One was a lacerated on the scalp. He had an abrasion on the right fore-arm and a bruise on the right shoulder. All the injuries were simple. 16. D.W.S. Dr. Kundanlal Arora, who appeared in defence, deposed to the injuries by the various accused persons. 15. Bhondu had 3 injuries. One was a lacerated on the scalp. He had an abrasion on the right fore-arm and a bruise on the right shoulder. All the injuries were simple. 16. D.W.S. Dr. Kundanlal Arora, who appeared in defence, deposed to the injuries by the various accused persons. Subhan Khan had 13 injuries. He had contused wounds on the eye brow, left occipital bone, left shoulder, anterior aspect of the left upper arm, lateral aspect of the left upper arm, contused wound on the lateral aspect lower one-third of the upper arm, contusion on the left side of the chest posterior aspect, on the chin of the left tibia and four contusions on the buttocks. He had an incised wound on the left thumb. All the injuries were simple. 17. Semmi had 2 contused wounds; one on the right parietal bone; and the other on the hand and both of them were simple. 18. Accused Nabi Khan had 10 injuries. One was an incised wound on the left parietal bone. Then he had two contused wounds on right parietal and on the occipital bone left side. Then there were contusions on the scapular region, on the left scapular region, on the left lumber region and on the right index finger. Injury No 1 on the head was grievous caused by a sharp weapon. The other injuries were simple. 19. Semmi Khan had 3 contusions on left fore-arm, and on the vertex. 20. Arjun had 15 injuries. Three were incised wounds on the right lower leg and on the fight fore-arm. The contusions were on the upper lip right side, left fore-arm, right shoulder, right fore-arm, right buttock, right thigh and on the left thigh. All the injuries were simple. 21. The number of injuries was very well balanced. The total number of injuries received by all the injured on the other side being 46 Munshi whose injuries I have already noted, however, expired, Otherwise even the nature of the injuries too was almost balanced and showed that both the sides carried weapons like lathis and cutting weapons like Farsis. 22. Mrs.O.C. Chatterji has argued the case on behalf of the 4 appellants namely Chhajju, Surjan and Nabi Khan. 22. Mrs.O.C. Chatterji has argued the case on behalf of the 4 appellants namely Chhajju, Surjan and Nabi Khan. Shri Ahmed Bux Sindhi who had earlier filed the appeal on behalf of the 9 accused was not present and accordingly learned counsel for the State read to me the relevant statements bearing on their complicity. Servashri K. N. Tikku and R. P. Goyal argued the other two appeals. Before I come to deal with the individual appeals and the cases of the various accused appellants, I may conveniently deal with the general features of the case. 23. As already observed, the conclusion reached by the learned Judge in both the cases was that there was a free fight between the parties and it was not necessary for the trial court to go into the question as to who was the aggressor and as where the incident had taken place. After going into the matter carefully with the assistance of all the learned counsel I am satisfied that the conclusion reached by the learned Judge about there being a free fight is erroneous. If by free fight the learned Judge only meant to express that when the fight had proceeded further and the parties were so mixed up that one could not say as to who hit whom or that there was at one stage a kind of melee then the learned Judge is right, but the conception of a free fight is that both the parties mean to fight from the very beginning and they go out for a fight and there is a pitched battle. What is essential is the going out of both the parties for a fight. In such a case, of course, it is immaterial as to who attacks first and who defends, because then it would be more or less a matter of strategy thought of by each party- But in a free fight there is an express or an implied challenge by one party to the other and they go ahead with the determination to settle their scores by use of force and in this they care the least for the authorities of law. In other words, none is in a mood to approach the lawful authorities for redress, beforehand. The present is not a case of this type. In other words, none is in a mood to approach the lawful authorities for redress, beforehand. The present is not a case of this type. In cases where the evidence is partisen on both sides and quite a large number of persons are injured on either side, there is bound to be a temptation for the prosecution to come forward with the story of a free fight, but it becomes the duty of the Court to make an effort to untie the knot, if this could be done, and not to cut it roughly straight away. 24. I may notice once again the passage in the judgment of the learned Judge which will go to show as to how his mind was not made up clearly even regarding there being a free fight. The learned Judge cited Kalu vs. State (1) and then observed as follows: "In the instant case both the parties, the complainant and the accused persons met suddenly and fought with each other and in that fight the complainant party suffered more injuries than the accused party." Therefore, according to the learned Judge the fight was sudden which implies a free fight according to him and thereafter he has contradicted himself that there was no pre-determination to fight. The learned Judge was also not right in saying that it is immaterial as to at what place the incident had taken place and as to who was the aggressor. In such cases it is the primary duty of the Court to find out, if possible, as to which party was the aggressor and for reaching a proper conclusion on this question the place of the ucident becomes important. It is unfortunate that the learned Judge did not realise the importance of both these aspects. The question as to who was the aggressor may at times depend on the place of the incident though this may not be always so. 25. Now the evidence of P. W. 16 Shri Mahavir Singh is that on receipt of the first information report from the Station House Officer, Kotwali, Alwar, he registered a case and went to the spot and prepared a site plan Ex. P/15 which was in his hand On the spot he found piece of stick which he seized vide Ex. P/I6. He also recovered blood stained earth from the field vide Ex. P/17. In Ex. P/15 which was in his hand On the spot he found piece of stick which he seized vide Ex. P/I6. He also recovered blood stained earth from the field vide Ex. P/17. In Ex. P/15, it was mentioned that there was blood found on the plants of Sarson in the field of Bhondu and also there were marks of struggle showing that a number of persons had struggled. In his statement in court Mohavirsingh stated that he prepared the site plan Ex. P/15 and made recoveries vide Ex. P/16 and Ex. P/17, but he did not say that he had seen the marks of struggle in the filed of Bhondu. He however, had stated that he had seen blood on some plants of Sarson\ Mrs Chatterji argued that what the Sub Inspector had stated in court was the evidence and what was mentioned in the site plan Ex. P/15 was not the evidence and, therefore, it cannot be said that it had been established by the prosecution that the incident had taken place in the field of Bhondu (P. W. 1). Mrs. Chatterji is right in saying that the Sub Inspector should have stated what he had actually seen and should not have contented himself merely by proving the site plan prepared by him. But he had undoubtedly said that the Sarson plants in the field of Bhondu bore blood marks. Therefore, reading the statement of Mahavir Singh, as a whole, I am satisfied that the incident had taken place in the field of Bhondu (P. W. 1). Blood was also found at a distance of about 125 feet (50 paces) from the place of the incident near the field of Chiranji Khati. But, it is not the case of either party that any incident had at all taken place near Chiranji Khatis field It is a matter of speculation how the blood came to be found near the field of Chiranji Khati. The learned trial Judge has clearly come to the conclusion that there was only one incident. As already observed, it is a matter of speculation as to how the blood was found in the field of Chiranji Khati. It may be that someone of the injured had been taken by that side though no one had said so, and some blood may have fallen at that point. 26. As already observed, it is a matter of speculation as to how the blood was found in the field of Chiranji Khati. It may be that someone of the injured had been taken by that side though no one had said so, and some blood may have fallen at that point. 26. Now the next important question that calls attention is how the incident had taken place. It is the case of both the parties that at the relevant time they were doing Lavni i.e. harvesting and the observations of the learned Judge, that I have quoted above, go to show that the fight had taken place suddenly. The question immediately arises how it sparked off suddenly. In Ex. P/l, the first information report lodged by Bhondu (P. W. 1) had stated (vide portions marked A to B) "I turned out the ox of Nabi Khan from my field & then Nabi Khan, Arjun, Subhan, Niwan Khan, Samme Khan, Sammi came to my field with lathis". But he has denied this portion A to B in court. The evidence in court is that the fight started because; Bhondu had turned out the ox of Nabi Khan which had strayed into his field and was doing damage. The version of events about the ox of the other side is that two days before the incident the cattle of Bhondu had done damage to the crops in their own field, that is, the field of Bhullu. The incident had taken place at about 10 or 11 a.m. Now, if both the parties were doing Lavni from before and if the cattle of one party had done damage to the crop of the other party two days before the incident then without there being any other immediate cause there would not be a sudden flare up between the parties. The story of the ox of Nabi Khan straying into the field of Bhondu a short while before the. incident furnishes the immediate cause for the fight between the parties Apart from this the circumstance cannot be overlooked that the first information report by Bhondu was lodged on the next day, but the first information report by the other side was lodged on the 1st of March, that is, two days later. incident furnishes the immediate cause for the fight between the parties Apart from this the circumstance cannot be overlooked that the first information report by Bhondu was lodged on the next day, but the first information report by the other side was lodged on the 1st of March, that is, two days later. I am, therefore, satisfied that the incident had taken place because the ox of Nabi Khan had strayed into the field of Bhondu on the day of the incident. Bhondu had turned out the ox and the expression used is Tarna which is synonymous with beating. Therefore, it is Bhondus tuning out the ox by beating it and then reprimanding the other side that furnished the cause of the incident. Having beaten the ox and turned it out Bhondu could have no reason for going to Bhullus field and giving the members of the other side a beating Rather there could be a reason for the other side to come and retaliate. It is likely that to start with the persons who might be there available began the fight and later on some more joined on other side and this is how the event seems to have developed. 27. Now it follows from what I have said regarding the place of the incident that it was the other side i.e. the party of Subhan and others who had taken the cudgels to start with and thus they were the aggressors. The learned Judge has come to the conclusion that the common object of the assembly was to cause simple and grievous injuries. Now, when these persons go and beat Bhondu and others and if members of Bhondus party or his relatives go there to defend Bhondu and bis companions then in so defending themselves they cannot be said to be doing anything unlawful, if in this they do not exceed the right to defend themselves. In this light I may now proceed to deal with the individual accused. 28. I may first take up appeal No. 120 of 1970. Mrs. Chatterji has submitted that three of the accused Chajju, Bhullu and Surjan had no injuries on their persons and they were also not named in the first information report and accordingly they were not present in the fight. 28. I may first take up appeal No. 120 of 1970. Mrs. Chatterji has submitted that three of the accused Chajju, Bhullu and Surjan had no injuries on their persons and they were also not named in the first information report and accordingly they were not present in the fight. Regarding Nabi Khan she argued that he was undoubtedly there, as he had a number of injuries on his person, but he was not the aggressor, but was defending himself. In the alternative, she submitted that Nabi Khan in any event could be convicted at the most for an offence under section 323 read with section 149 Indian Penal Code. Lastly, it was argued that the age of Nabi Khan was below 21 and, therefore, the benefit of the Probation of Offenders Act be accorded to him. 29. I may first take up the cases of Chajju, Bhullu and Surjan. So far as the case of Bhullu is concerned, Bhullu has not been named in the first information report and he has also not been named by Bhondu in bis police statement. So far as Surjan and Chajju are concerned, they have not been named in the first information report. About their names being mentioned in the police statement learned counsel for the appellants submitted that they have not been named as the assistants in the police statement Ex. D/2. Learned counsel for the State on the other hand submitted that they had been so named. Learned counsel for the State is right in saying so. However, the question would still remain whether that portion of the statement can at all be utilised by the prosecution. The contradiction brought out between the police statement of the witness and his statement in court was only in respect of portions marked A to B in Ex. D/2 which was only about the doing of Lavan i.e. harvesting. In portion A to B the witness stated before the police that in the field Nabi Khan, Arjun, Subhan, Hiwaz Khan, Samma Khan and Sammi were doing Lavni i.e. harvesting. Chajju and Surjan have not been named there* in. This does not follow that they have not been named even as assailants. In portion A to B the witness stated before the police that in the field Nabi Khan, Arjun, Subhan, Hiwaz Khan, Samma Khan and Sammi were doing Lavni i.e. harvesting. Chajju and Surjan have not been named there* in. This does not follow that they have not been named even as assailants. It was for the counsel who cross-examined the witness on behalf of the accused to bring out the contradiction, if any, about these two accused being the assailants and it was not sufficient to establish a contradiction about the presence or absence of these accused in the work of harvesting of the crop. However, the circumstance is there that these accused had not been named in the first information report. The question is as to what is the explanation for the omission of the names of these accused in the first information report by P.W. 1 Bhondu who was the most important witness in the case, as the whole incident had taken place in his field and on account of this witness P.W. 1 Bhondu turning out the ox of Nabi Khan.The explanation that learned trial Judge has accepted is that P.W. 1 Bhondu was not in a fit state to make a statement. When it was argued before him that the doctor too had certified when the statement Ex. P/l was recorded by the Sub Inspector from Kot-wali, Alwar, that the injured was in a fit state to make a statement, the learned Judge observed that the doctor has not proved the endorsement. It is not worthy that the first information report was lodged more than 24 hours after the incident and according to the Assistant Sub Inspector Shri Megha Ram who recorded Ex. P/l, that Bhondu was in his full senses when he recorded the first information report and he was in a fit state to make a statement. He also stated that the medical officer had made an endorsement on it. The learned Judge has completely overlooked the testimony of Shri Megha Ram. Shri Megha Ram had no reason whatsoever to omit any name or to record the statement of Bhondu ever if he was not in his senses, because he was not to investigate the offences. Apart from this the learned Judge himself has observed that the evidence on either side was partisan in character. Shri Megha Ram had no reason whatsoever to omit any name or to record the statement of Bhondu ever if he was not in his senses, because he was not to investigate the offences. Apart from this the learned Judge himself has observed that the evidence on either side was partisan in character. In such a case the possibility of some names being introduced later cannot be ruled out. Apart from this these three accused had not received any injury worth the name on their person. If the parties had fought at such close quarters, as appears to be the case, it is not conceivable that not a single injury could be received by these three accused, if they were really in the thick of the fight. That being so, I feel that the presence of these three accused in the fight has not been established beyond all manner of doubt and the benefit of doubt has to be given to them. 30. About Nabi Khan it is enough to say that there can be no manner of doubt about his presence. He had received a number of injuries himself and it was on account of his ox having strayed into the field of Bhondu and on account of the latter beating it and turning it out that the incident had taken place. Nabi Khan was, therefore, amongst the attackers of Bhondu and others. Therefore, in my opinion, the learned Sessions Judge was right in holding him guilty. As to what offence is made out, I will say after I have disposed of the cases of all the accused. 31. Now I may take up the cases of the accused appellants Subhan, Samme Khan, Sammi, Arjun and Niwaz Khan. Of them Subhan, Samme Khan Sammi and Arjun had injuries on their persons. Niwaz Khan had no injuries. It is true he was named in the first information report, but the entire evidence of the other side is partisan in character and, therefore, if Niwaz Khans complicity could not be accepted without there being a circumstantial support about his presence. As I have already observed, the parties had fought at close quarters. If Niwaz Khan were there, he too would have received some injuries. Therefore, benefit of doubt should be given to him as well. 32. Now I may take up the cases of the appellants Bhondu, Jumman, Sham-sher and Shitab. As I have already observed, the parties had fought at close quarters. If Niwaz Khan were there, he too would have received some injuries. Therefore, benefit of doubt should be given to him as well. 32. Now I may take up the cases of the appellants Bhondu, Jumman, Sham-sher and Shitab. Their cases need not detain me, as I have already discussed above as to where the incident had taken place and which party was the aggressor. Since the accused had received a number of injuries themselves and one of their person Munshi had even lost his life, it cannot, be said that these accused appellants were not within their rights in using force to defend themselves. The force used by them to the other side to be unreasonable in the circumstances. That being so these five accused appellant have not been rightly convicted. 33. I may now deal with the question as to what offence is made out against Subhan, Samme Khan, Arjun and Nabi Khan. As the number of the accused is still five they have been rightly held to be members of an unlawful assembly the common object of which was to cause simple and grievous hurt to Bhondu. The learned Judge has observed regarding, the common object as follows:— "Different versions as regards the infliction of blows are given by the individual prosecution witnesses. Therefore, I can only conclude that even though the death has resulted due to the injuries caused in this fight, but the intention could not have been to kill the deceased Munshi. The common object of the unlawful assembly was only to cause grievous and simple injuries with blunt and sharp weapons, but from the nature of the injuries, specially on the head of the deceased Munshi and the number of injuries on the person of the deceased Munshi it can be gathered that the accused persons had at least the knowledge that the injuries might cause the death of Munshi." Deceased Munshi had one lacerated wound 3 cm. x 3/4 cm. bone deep on top of the scalp 16 c.m. above the right ear and injury No. 2 was swelling 13 cm. x 8 c.m. on the right side of the scalp, just above and behind the right ear. It was injury No. 1 that proved fatal. Injury No. 2 on the scalp was only a swelling. x 3/4 cm. bone deep on top of the scalp 16 c.m. above the right ear and injury No. 2 was swelling 13 cm. x 8 c.m. on the right side of the scalp, just above and behind the right ear. It was injury No. 1 that proved fatal. Injury No. 2 on the scalp was only a swelling. Looking to the fact that 45 injuries or so were received by each side and there was one injury on the head of Munshi which proved fatal, one cannot unhesitatingly say that all the accused knew that death would be the likely result, moreso, when it has not been established as to which injury was caused by which of the accused. In such a case it will be safer to hold the accused guilty only for the offence under sec. 325 read with sec. 149 Indian Penal Code. Learned counsel for the accused appellant Nabi Khan submitted that he could be convicted only under sec. 323 read with sec. 149 Indian Penal Code. I reject this contention, because the attack was a concerted one with lathis and Farsis and if quite a large number of grievous injuries had been received by the other side the knowledge about the infliction of grievous injuries could be imputed to the accused. Some of the accused carried sharp edged weapons and this could be known to each and every member of the unlawful assembly. As regards the plea that the benefit of Probation of Offenders Act be allowed to the accused, it is enough to say that Nabi Khan in his own statement as P.W.3 in the cross-case had given his age as 25 years. Therefore, the benefit of the Probation of Offenders Act cannot be allowed to him. I should think a sentence of 3 years rigorous imprisonment, in the circumstances, will meet the ends of justice. 34. In the result, I allow appeal No. 120 of 1970 in part. The conviction and sentence awarded to the accused Surjan, Chhajju, Shullu and Niwaz Khan are set aside and they are hereby acquitted. They shall be set at liberty forthwith, if not required in any other case. The conviction of the accused Subhan, Samme Khan, Sammi, Arjun and Nabi Khan is altered from sec 304 Part II read with sec. 140 Indian Penal Code to that under sec. 325 read with sec. They shall be set at liberty forthwith, if not required in any other case. The conviction of the accused Subhan, Samme Khan, Sammi, Arjun and Nabi Khan is altered from sec 304 Part II read with sec. 140 Indian Penal Code to that under sec. 325 read with sec. 149 Indian Penal Code. The conviction and sentences awarded for other offences are unnecessary and they are set aside. The sentence awarded to these accused appellants is reduced to three years rigorous imprisonment in each case. Criminal Appeals Nos. 164 and 183 of 1970 are allowed. The conviction of the accused appellants Bhondu, Bhonda, Jumman, Shamaher and Shitab are set aside and they are hereby acquitted. They are on bail and their bail bonds shall stand cancelled. The fine, if paid, shall be refunded to them.