JUDGMENT 1. 1. Accused Murli, Prabhat, Kajor, Lalu, Roora, Smt. Chandri, Smt. Ramli and Smt. Bodi were tried by the learned Additional Sessions Judge, Sikar for committing the murder of Surja Ram and causing injuries to Chhotu, Goru and Badri. The learned Additional Sessions Judge found accused Murli, Prabhat and Kajore alias Kishore guilty of offence punishable under Section 302 read with Section 34 I.P.C. and sentenced each of them to imprisonment for life. They were also convicted under Section 447 I.P.C. and each of them was sentenced to a fine of Rs. 100/-. Accused Lalu and Roora were convicted under Section 447 and 323 I.P.C. Each of them was sentenced to a fine of Rs. 100/ - under the first count and three month's rigorous imprisonment under the second count. Smt. Chandri, Smt. Ramli and Smt. Bodi were convicted under Section 447 I.P.C. and each of them was sentenced to a fine of Rs. 100/ - . In default of the payment of fine to suffer one month's simple imprisonment. Smt. Bodi was also convicted under Section 323 T. P. C. and was sentenced to a fine of Rs. 100/-. In default of the payment of fine to further suffer one month's simple imprisonment. 2. Tersely speaking shown of unnecessary details the relevant facts for the decision of this case are that on July 13, 1972 at about 7.00 a. m. PW 1 Chhotu in the company of his brother Surjaram (since deceased), PW 14 Badri and PW 2 Goru reached his field known as Gurjawali, which is situated in the Tan of Dhani Cheta. They with the help of their oxen and plough cultivated a portion of their field. As the sticks of accused Prabhat were lying in the field, they threw them into the Bada of accused Prabhat, which was situated adjacent to the place where they were ploughing the field. Accused Prabhat and Murli came running on the place of incident from their Dhani. Murli was armed with an axe and Prabhat was armed with a Ranpan. Accused Prabhat inflicted a blow on the head of Surja ram and accused Murli also inflicted an axe blow from its reverse side on the head of Surjaram. Accused Prabhat and Murli came running on the place of incident from their Dhani. Murli was armed with an axe and Prabhat was armed with a Ranpan. Accused Prabhat inflicted a blow on the head of Surja ram and accused Murli also inflicted an axe blow from its reverse side on the head of Surjaram. On hearing hue and cry accused Roora, Lalu, Kajore, Smt. Bodi, Smt. Chandri and Smt. Ramli after being armed with lathis came together with a common object to kill Surjaram and others. While coming on the field they raised a cry "MARLO, MARLO. Accused Lalu gave a lathi blow on the head of Goru, while Kajore inflicted a lathi blow on Surjaram, which fall on his head. Accused Smt. Chandri and Murli exhorted others to finish the victims. A first information report of this occurrence was lodged, at the Police Station, Thoi at 7.30 a. m. on the same day. Injured Chhotu, Surjaram (since deceased) and Goru were taken to the hospital at Ajitgarh for medical aid. They were clinically examined by PW 16 Dr. Bbanwar Singh Devra. Their injury reports are Ex. P/2, Ex. P/3, and Ex. P/4. Surjaram succumbed to his injuries in the hospital on the same day. Autopsy on the dead body of Surjaram was performed by the same doctor. The postmortem report is Ex. P/6, Dr. Bbanwar Singh noticed the following external injuries on the person of Surjaram:- 1. Lacerated wound 13/4" X 1⅛ obliquely placed on left side of scalp, 1" away from mid line and 41/4" above the left eye-brow. The injury was bleeding. 2. Lacerated wound 3'X V vertically placed on right side of the scalp, 1" away from mid-line and 41/2" above the right eye-brow. The injury was bleeding. 3. Lacerated wound 11/4" x 1/4" obliquely placed starting from mid-line on left side of the scalp, 4" above the occipital protuberance. 4. 'Contention 2 X 3/4' obliquely placed on the lateral part of right forearm, 1/2" below the below joint. 5. On the left side of both the upper incisers and canine teeth were missing. Lower both incisers and on the right side both lower incisers and canine and upper canine and first prenola teeth were missing. The sockets were bleeding profusely. 'Contention 2 X 3/4' obliquely placed on the lateral part of right forearm, 1/2" below the below joint. 5. On the left side of both the upper incisers and canine teeth were missing. Lower both incisers and on the right side both lower incisers and canine and upper canine and first prenola teeth were missing. The sockets were bleeding profusely. According to the doctor, the condition of the injured Surjaram when he was brought to the hospital was serious and he was in a state of coma due to injuries Nos. 1 to 3. On internal examination of the dead body Dr. Bbanwar Singh noticed there was diffused haemotoma all over the scalp on left side on parietal and frontal part of right side. (Fracture of right frontal bone starting from mid-line running horizontally upon 11/2", than slightly obliquely running posteriorly 1/4" then obliquely towards the ear side 21/2" extending to the right parietal bone, then turning downwards 4" long on right temporal bode just above mastoid process. Fracture of right parietal bone 21/2" long horizontally placed in its middle. There was opening of left side of fronto parietal suture line right from mid line upto 2" and in its continuation there was a fracture of parietal and temporal bones in downwards direction extending upto the left inaudible joint. There was fracture of left parietal bone running anterio-posterity and than obliquely 2 1/2" long extending upto parietal temporal suture. There was also fracture of left frontal bone 2 1/2" long, away from mid line anterio, posteriorly placed in its middle. In the opinion of the doctor injuries Nos. 1, 2 and 3 mentioned in injury report Ex. P/2 with their internal effect resulting into the fractures as mentioned above were individually as well as cumulative sufficient in the ordinary course of nature to have caused the death of the victim. During the investigation the police recovered some of the weapons of offence, but they are of no avail to the prosecution, as none of them except Ranpan was found to be stained with human blood. Ranpan was recovered from an open place and as such its recovery is not sufficient to connect any of the accused with the crime. During the investigation the police recovered some of the weapons of offence, but they are of no avail to the prosecution, as none of them except Ranpan was found to be stained with human blood. Ranpan was recovered from an open place and as such its recovery is not sufficient to connect any of the accused with the crime. The police after usual investigation Submitted a challan against all the eight accused in the Court of Munsif Magistrate, Neem-ka-Thana, who after taking proceeding under Section 207-A, Criminal Procedure Code, 1898, committed all the accused to take their trial under various counts to the Court of Additional Sessions Judge, Sikar. 3. The accused pleaded not guilty to the charge and the prosecution examined 16 witnesses, in support of their case. Out of whom PW 1 Chhotu and PW 2 Goru are the injured eye witness and PW 14 Badri an another eye witness, who left the scene of occurrence during the course of assault. PW 16 Dr. Bhanwar Singh is the medical officer, who conducted autopsy on the dead body of Surjaram and examined other injured witnesses and accused. PW/16 Banshidhar is the investigating officer of this case. The accused denied their complicity in the crime and raised a plea of self defence to person and property. They examined three witnesses in support of their defence. 4. The learned Additional Sessions "Judge placing reliance on the statements of all the three eye witnesses corroborated by the medical evidence as well as the first information report Ex. P/1, which was promptly given in the case, held all the eight accused guilty under various counts as mentioned above. He, however, found the defence plea of self defence to be non-reliable and convicted and sentenced all the accused as mentioned above. 5. The controversy in this has been reduced to a narrow compast, as the learned counsel appearing on behalf of the accused-appellants keeping in view the preponderance of evidence on record has rightly conceded that the occurrence took place at the time, place and in the manner alleged by the prosecution. There is no dispute between the parties on the point that in the same incident Surjaram, Chhotu and Goru sustained injuries. As a result of the injuries Surjaram succumbed to his injuries. There is no dispute between the parties on the point that in the same incident Surjaram, Chhotu and Goru sustained injuries. As a result of the injuries Surjaram succumbed to his injuries. However, we have looked into the relevant portion of the evidence and are satisfied that as regards the murder of Surjaram and causing of injuries to Chhotu and Goru the prosecution has brought home the guilt to the accused beyond any manner of doubt. 6. The first and foremost point which has been argued by the learned counsel for the appellants is that there is no reliable evidence on record to hold that the assault took place on that portions of the land which was under the exclusive and settled possession of the complainant. PW 1 Chhotu under cross-examination admitted that ⅗th of Roora and Murli accused and the rest of the portion 2 / 5 th was with the complainant. Specific question was asked to him to give the khasra number of the portion which was in his possession, but the witness failed to specify it. He also admitted that the demarcation separating the portion of the land of the complainant and the accused has not taken place. The learned Additional Sessions Judge while convicting the accused under Section 447 I.P. C. held that the incident did take place in the field known as Gurjawala, but he failed to locate that as to the portion of that field on which the assault took place was under whose exclusive and settled possession. No doubt strong suspicion does arise that the assault took place in the portion of the field which was under the possession of the complainant, but suspicion howsoever grave cannot take the place of proof. The accused persons are entitled to the benefit of reasonable doubt. In these circumstances we do not consider it safe to maintain the conviction of any of the accused under Section 447 I.P.C. 7. We have gone through the relevant portion of the record and we, however see no reason to differ from the opinion of the trial Court that the defence version as disclosed in the statements of the defence witnesses and as set up by the accused persons in their statements recorded under Section 342 Cr.P.C. could not be true except to the extent that the appellants had also received injuries in the same occurrence. The prosecution witnesses have also admitted causing of injuries on the person of accused, A perusal of the injury reports Ex. D/3 to Ex. D/7 reveals that accused Smt. Bodi sustained one injury, Smt. Chandri sustained one injury, Smt. Ramli sustained five injuries, Murli sustained 3 injuries; Kajor alias Kishore sustained five injuries. It is also true that first information report of this occurrence was lodged within a short time. It contains the names of all the accused as well as a detailed account of the prosecution case, which lend considerable support to the truthfulness of the prosecution story. No doubt in the first information report it has not been mentioned that accused also sustained injuries in the same occurrence, but as the witnesses have admitted this fact at the stage of the trial, the absence of this fact in the first information report is of no consequence.v The land belonging to the appellants and the deceased is situated adjacent to each other. They are the descendant of a common ancestor. The quarrel arose on a triffling affair of placing the sticks near the Bada of the accused Prabhat. We think that it is far more likely that the occurrence took place without premeditation in a sudden fight in the heat of passion. A wordy warfare must have taken place between the parties prior to the assault. No doubt three injuries were inflicted in the head of deceased Surjaram, but when blows are inflicted in a sudden quarrel in best of passion, the injuries cannot be weighed in golden scale. There is nothing to hold that any of the accused tried to take undue advantage or acted in a cruel manner. None of the three accused namely, Prabhat, Murli and Kajore repeated a blow on the person of Surjaram. The accused were also injured in the same incident. Though a right of self defence to person did not arise in their favour for the reasons already mentioned above, but it did provide them a grave provocation and as such all the three appellants are entitled to the benefit of Exception (4) of Section 300 I.P.C. 8. Consequently we set aside the conviction and sentence of appellant Prabhat, Murli and Kajore under Section 302 read with Section 34 I.P.C. We convict them under Section 304 Part I I.P.C. and sentence each of them to seven years' rigorous imprisonment. Consequently we set aside the conviction and sentence of appellant Prabhat, Murli and Kajore under Section 302 read with Section 34 I.P.C. We convict them under Section 304 Part I I.P.C. and sentence each of them to seven years' rigorous imprisonment. The conviction and sentence awarded to them under Section 447 I.P.C. are set aside. The conviction and sentence awarded to accused Lalu, Roora and Smt. Bodi under Section 447 I.P.C. are set aside, but their conviction under Section 323 I.P.C. are maintained. However the substantive sentence of imprisonment awarded to accused Lalu and Roora under Section 323 I.P.C. is reduced to the term of imprisonment already undergone by them. The sentence of Rs. 100/ - imposed on accused Smt. Bodi is maintained. The conviction and sentence awarded to accused Smt. Chandri and Smt. Ramli under Section 447 I.P.C. are set aside. 9. The appeal is partly allowed as indicated above.It is, however, made clear that the accused-appellant Murli, Prabhat and Kajore alias Kishore shall be entitled to the benefit of section 423 Cr.P.C. and the period of detention undergone by them during investigation, inquiry or trial shall be set off against the term of imprisonment awarded by this Court. *******