K. N. SHUKLA, J. ( 1 ) THIS judgment shall also dispose of Criminal Appeal No. 1069 of 1980 (The State of Madhya Pradesh v. Narayan and others ). Both appeals arise out of Sessions Trial Nos. 56 of 1979 and 79 of 1979 decided by a common judgment dated 29. 5. 1980 by learned Second Additional Sessions Judge, Sagar. One of the respondents, namely, Makhan alias Ashok was found to be juvenile and was, therefore, tried separately. ( 2 ) THESE are State appeals against the acquittal of the respondents of charges under sections 302/149, 147, 148, and 324 of the Indian Penal Code. During the pendency of the appeals two of the Respondents, namely, respondent No. 3 Rama alias Ramchandra and respondent No. 9 Ramlal died and the appeal abated against them. ( 3 ) VILLAGE Ghura police station Sanoudha is riven by, party factions. Damodar (P. W. 6), father of the deceased. Nandkishore alias Nandu is the village Patel, but the other faction has been trying for his removal from this office. There were panchayat elections sometime ago and some of the complainants and accused were pitched against one another. The incident in which Nandu lost his life took place on 26. 10. 1978 between 6 to 7 p. m. In this incident Madhav Prasad (P. W. 1), Deokinandan (P. W. 7) (both brother (sic) of the deceased), Damodar (P. W. 6) (father of the deceased Gayatri Bai (sister of the deceased), Rajkumar and Ganesh, distant relations of the deceased had received various incised and other injuries In the same incident accused respondents Jagdish, Kundan, Ghanshyam and Ghanshyams wife Sharadabai also received incised and other injuries. ( 4 ) PROSECUTION case was that on the date of the incident at about 6 p. m. Madhav Prasad (P. W. 1) and his brother Nandu (deceased) had gone to their saar (cattle shed) for milking their Cows and she-buffaloes. The cattle shed is about 25 paces away from their residential house. At that time respondents Rameshwar Mathura, Umashankar, Ramlal, Shankerlal, Shriram, Raja and Tulsiram were seen sitting on a Chabutara with lathis. When Madhav Prasad and Nandu reached their Saar, respondents Narayan arid Ghanshyam (son and father respectively) came from their house and remonstrated that buffaloes of Madhav Prasad and Nandu had damaged the standing Jwar crops of their fields. At that time respondents Rameshwar Mathura, Umashankar, Ramlal, Shankerlal, Shriram, Raja and Tulsiram were seen sitting on a Chabutara with lathis. When Madhav Prasad and Nandu reached their Saar, respondents Narayan arid Ghanshyam (son and father respectively) came from their house and remonstrated that buffaloes of Madhav Prasad and Nandu had damaged the standing Jwar crops of their fields. Respondents Narayan and Ghanshyam were carrying Katarnas (a long bladed axe fixed to a stick ). Madhav Prasad and Nandu retorted that if their buffaloes had damaged their crops, they ought to have taken to the cattle pound. Hot words were exchanged. In the meantime Rameshwar and Mathura exhorted Jan se maro jinda na chhodo. Respondent Narayan gave a blow with Katarna on Nandus head but Madhav Prasad saved him though in the process he was hit on his left hand. Jairam Parasar (P. W. 8), brother of Damodar and real uncle of the decreased, shouted Daudiyo re, Narayan aur Ghanshyam mar rahe ham. In the meantime respondents Ramesh carrying Katarna, Dhanirami-carrying a Ballam, Kundan a Katarna, Suresh a Gupti, Kallu a Katarna, and, Jagdish, Uttam, Nanha Murari, Manmohan and Rajju with lathis reached the spot. Deceased Nandu and Madhav prasad ran towards their house. However, respondent Kundan gave a Katarna blow on Nandas head and respondent Dhaniram dealt a blow with a Ballam pielcing Nandu's chest on the, left side. Nandu fell clown, Kundan gave a Katania blow to Madhav Prasad and Kallu and Mathura hit him with, lathies. Damodar, Gayatri Devi, Deokinandan, Goutribai, Shilabai and Ashok tried to rescue them but they too were hit by Katarnas, Jathis and stones. Naridu had received a fatal injury on, the chest and succumbed to it. The complainant party went inside their house. It was further alleged that their house was then surrounded by the respondents and their associates, holding a threat to set it on fire. ( 5 ) SOME of the respondents, as already mentioned, had also received various injuries. They lodged a report at police station Sanodha. On this report ASI Ramashankar Sen (P. W. 9) went to village Ghura where Madhav Prasad lodged a report to him which was registered at Dehati Nalshi (Ex. P. 2) and a formal FIR (Ex. P. 8) was recorded at the police station. The Investigating Officer sent Madhav Prasad, Damodor, Gayatri Devi, Deokinandan, Rajkumar and Ganesh for medical examination where Dr. P. 2) and a formal FIR (Ex. P. 8) was recorded at the police station. The Investigating Officer sent Madhav Prasad, Damodor, Gayatri Devi, Deokinandan, Rajkumar and Ganesh for medical examination where Dr. A. H. Khan (P. W. 2) examined them and sent the injury reports. Nandu's body was sent for postmortem examination. Dr. Chouhan (P. W. 2) noted the following injuries: External: (i) Incised wound over left side of chest 11/2 x 1/2 upto right ventricle. Right ventricle having incised wound. (ii) Incised wound over middle of scalp 2 x 1/211 skin deep. (iii) Abrasion and swelling 11/2 x 1/2 over back of neck. (iv) Abrasion and swelling over left elbow 11/2 x 1/2. Internal - Injury No. I was placed obliquely upward backward below 11/2' to left nipple and 1/2 to sternum fifth rib which pierced upto the right ventricle. Death according to the doctor was caused by shock due to haemorrhage produced by injury No. 1 which was sufficient to cause death in the ordinary course of nature. According to doctor Chouhan the injury on the chest could be caused by the Ballam (Article P. 1) produced in Court. On these allegations charges under Sections 302/149, 324/149 and 148 Indian Penal Code were framed. ( 6 ) RESPONDENTS Narayan, Jagdish, Kundan and Ghanshyam pleaded in defence that the complainant party consisting of Damodar and his other relations came to their house and assaulted Ghanshyams wife Shardabai. When they tried to intervene, they started hitting them with various lathal weapons. Ganesh (P. W. 4) who was also in the party of Damodar was carrying a Ballam. Many persons of the village gathered there and tried to intervene. Some one snatched the Ballam, which Ganesh was carrying, and inflicted a blow on deceased Nandu. According to these respondents they acted in the exercise of their right of private defence of person. Other respondents totally denied their presence or participation in the incident. They led evidence to support their plea of alibi. ( 7 ) THE learned Judge doubted the prosecution story and also accepted the defence version that the respondents acted in exercise of their private defence of person. The acquittal of the respondents was based on the following grounds: (i) There was delay in making the F. I. R. According to the learned Judge AS. I. Ramashankar (P. W. 9) must have reached the village at about 10. The acquittal of the respondents was based on the following grounds: (i) There was delay in making the F. I. R. According to the learned Judge AS. I. Ramashankar (P. W. 9) must have reached the village at about 10. 30 p. m. but the report (Dehati Nalishi) was recorded at about 4 p. m. (ii) The prosecution witnesses had contradicted their statements recorded under Section 161, Criminal Procedure Code by the police on material particulars. (iii) Injuries on the person of some of the respondents were not explained by the prosecution. (iv) Independent witnesses were not examined. ( 8 ) BESIDES the injuries found on the person of the deceased Nandu, following injuries were noted by Dr. A. H. Khan (P. W. 10) on the persons of some of the prosecution witnesses. On Madhav Prasad he noted following injuries: (a) (i) One incised wound over the knuckle of left fore finger 1 x x bone deep along with diffused swelling surrounding the wound and extending upto dorsum of left hand. Movements were restricted. X-ray of left hand was advised, (ii) One lacerated wound 11/2 x 1/2 x bone deep in the scalp occipito-parietal region. X-ray of skull was advised. (iii) One incised wound anterior aspect of right shoulder 1 x x skin deep . (b) On Damodar Prasad he noted the following injuries: (i) One incised-punctured wound over posterior aspect of left forearm upper one third 1" x x muscle deep. X-ray of forearm was advised. (ii) One lacerated wound in the scalp left parietal region 2 x x. (c) On Gayatribai, the doctor found the following injuries. One incised wound in the scalp right parietal right 5 about the earmeasuring 2 x 1/2 x 1/2. (d) On Deokinandan, he noted the following injuries: (i) One abrasion left forearm lateral aspect lower one-third. (ii) Diffused swelling over dorsum of right hand medial aspect, tenderness was present. (e) On Rajkumar (not examined) he noted the following injuries: (i) Multiple linear abrasions all over the lateral aspect of right thigh extending from hip joint to knee joint. (ii) One contusion 2 x 1/4 over the left side of abdomen. (f) On Ganesh, he noted (i) Diffused swelling over the dorsum of right forefinger and middle finger, tenderness present. Movements restricted. X-ray of right hand was advised. ( 9 ) SOME of the respondents had also been injured and Dr. (ii) One contusion 2 x 1/4 over the left side of abdomen. (f) On Ganesh, he noted (i) Diffused swelling over the dorsum of right forefinger and middle finger, tenderness present. Movements restricted. X-ray of right hand was advised. ( 9 ) SOME of the respondents had also been injured and Dr. A. H. Khan (P. W. 10) noted the following injuries on the person of Jagdish: (a) (i) Incised wound 21/2 x 1/2 x cutting deep into mateorpo-phalyngeal joint of middle and ring finger of right hand on its dorsal aspect, bleeding present. (ii) Incised wound 1 c. m. x 1/2 c. m. x skin deep proximal phalyax of right little finger on its dorsum, bleeding present. (iii) Incised wound 1/2" x 1 x cutting to the bone left little finger distal phalynx on its dorsum. (iv) Incised wound 1/2 x " x skin deep over middle phalynx of left ring finger. (v) Contusion 4 x 1" over right sub scapular region obliquely placed. (vi) Abrasion 1 /2 x 1 /4 over right skin upper one-third. (b) On Shardabai the doctor found (i) Incised wound 1" x 1/2 over right wrist joint lateral aspect obliquely placed. (ii) Contusion 1 x 1 over knuckle of left middle finger. X-ray of left hand was advised. (iii) Lacerated wound 1/2 x 1/4 skin deep with contusion 2 x 1 over left zygometico temporal region. (c) On Kundan he noted: (i) One incised/punctured wound in the line of lumber spine at the level of first lumber vertebra measuring 1 x 1/4" x muscle deep. (ii) One lacerated wound in the scalp left parietal region measuring 1" x 1/4" X. (iii) One bruise over the left shoulder 2 x 1" in size. (iv) One bruise 1/4 x 1/4 lateral aspect of left wrist. (d) On Ghanshyam the doctor found: (i) One contusion right side frontal region of scalp 1" x 1". (ii) One contusion 2 x 3/4 below left nipple. (iii) One contusion 11/2 x 3/4 over the medial aspect right knee. (iv) Diffused swelling upper half right forearm, tenderness present. (e) On Shriram, he found: (i) Contusion 1 x 1 over the occipital region. ( 10 ) THESE injuries clearly established the fact that there had been a fight in which the deceased and the prosecution witnesses on one side and some the respondents on the other had received incised and contused wounds. (e) On Shriram, he found: (i) Contusion 1 x 1 over the occipital region. ( 10 ) THESE injuries clearly established the fact that there had been a fight in which the deceased and the prosecution witnesses on one side and some the respondents on the other had received incised and contused wounds. ( 11 ) ACCORDING to prosecution the quarrel started when accused respondents Narayan and Ghanshyam approached Nandu and Madhav Prasad near their Saar and in challenging tone asked them why their buffaloes had damaged the standing crops of their fields. When an altercation was taking place respondents Rameshwar and Mathura shouted Jan se maro. Narayan gave a Katarna slow on Nand us head but Madhav Prasad was able to parry it though in the process he received an injury himself. Soon after some of the respondents, namely, Ramesh, Dhaniram, Kundan, Suresh, Kallu, Jagdish, Nanha, Murari, Manmohan and Raju reached the spot. Deceased Nandu and Madhav Prasad tried to escape but they were chased and Kundan gave a Katarna blow on Nandus head while Dhaniram dealt a blow with a Ballam on his chest. If this genesis is accepted, then even though some of the respondents received injuries, they will not get any right of private defence as observed by the Court below. ( 12 ) LEARNED counsel for the respondents repeated the reasoning advanced by the learned trial judge and contended that the prosecution witnesses had concocted a story in respect of the origin of the incident. According to him the respondents had received serious injuries and were the first to go to the police station and lodge a report. This was around 8. 30 p. m. The Sub-Inspector started for the village and he must have reached at about 10. 30 or 11 p. m. The time of the Dehati Nalishi (Ex. P-2) at 4 a. m. indicated that the complainant party very carefully planned a story in order to absolve themselves of the part played by them. ( 13 ) THE FIR was lodged by P. W. 1 Madhav Prasad. He stated that just before dawn the Sub- Inspector came to his house and then he reported about the incident vide Ex. p. 2. ( 13 ) THE FIR was lodged by P. W. 1 Madhav Prasad. He stated that just before dawn the Sub- Inspector came to his house and then he reported about the incident vide Ex. p. 2. Madhav Prasad and Damodar (P. W. 6) stated that their house was surrounded by the respondents and their associates after the incident and they were threatening to set fire to the house. This version finds support from the letter Ex. p. 1 which Madhav Prasad had managed to send to the Station Master Ganeshganj Railway Station through his servant Ballu (D. W. 3 ). This document and its genuineness will be considered later in the Judgment but for the time being it is being used to corroborate the statements of Madhav Prasad and Damodar that their house had been surrounded and threats were being given to set it on fire. Naturally with a dead body in the house and the threat of being burnt looming large, it could not have been possible for any member of the family to take the risk of travelling about 17 kms. for lodging a report. ( 14 ) SUB-INSPECTOR Ramashankar Sen (P. W. 9) who recorded the report (Ex. p. 2) stated that he recorded the report at 4 a. m. on 27. 10. 1978. In cross-examination he stated that he had left the police station at about 8 p. m. for village Ghura. Though before us it was urged strenuously that the Sub-Inspector must have reached the village by 10 or 10. 30 p. m. , no question was put to him in order to ascertain as to when he reached the village and why the report was recorded at 4 a m. It appears that the defence counsel deliberately avoided to put this question in order to take advantage of the ambiguity created about the time factor. There was thus no justification whatsoever for inferring that the FIR was lodged. ( 15 ) LEARNED defence counsel suggested that Ex. p. 1 the letter sent to the Station Master, was in fact the FIR of the incident and since it did not mention the names of all the respondents nor did it describe the incident as subsequently mentioned in the FIR Ex. ( 15 ) LEARNED defence counsel suggested that Ex. p. 1 the letter sent to the Station Master, was in fact the FIR of the incident and since it did not mention the names of all the respondents nor did it describe the incident as subsequently mentioned in the FIR Ex. p. 2, an inference should be drawn that the story was concocted in order to rope in all the respondents with whom the complainant party was on inimical terms. We are not at all impressed by this contention though it appears that this argument had found favour with the Court below. ( 16 ) PERUSAL of this document (Ex. p. 1) written by a semi-literate person, as is obvious from the contents, shows that it was not meant to be a report to a police officer about the incident. It was an S. O. S. message to the Station Master, Ganeshganj Railway Station to contact S. P. Sagar telephonically or telegraphically so that their lives may be saved as according to this letter their house was surrounded by 70 to 80 people. The urgency of this report could very well be appreciated because the only person who had the facility of contacting S. P. , Sagar was the Station Master of the nearest railway station. To treat this as the FIR or to make use of it in order to discredit the witness on the ground that the names of the respondents were not mentioned therein would obviously be improper. ( 17 ) IT is true that Madhav Prasad denied his signature on this document though his own servant Ballu who was examined as a defence witness (D. W. 3) stated that this letter was written by Madhav Prasad and handed over to him by Goutribai, mother of Madhav Prasad, to be delivered to Station Master, Ganeshganj Railway Station. He took the letter to the Station Master but he refused to take any action and advised him to deliver the letter to Jagdish Hawaldar. ( 18 ) JAGDISH Prasad (P. W. 13) who was posted as head constable at police station Sanodha stated that on 27/10/1978 (the night intervening 26th and 27th October, 1978) he had gone to village Shahpur where Ballu Kachhi of village Ghura gave him the letter (Ex. p. 1 ). ( 18 ) JAGDISH Prasad (P. W. 13) who was posted as head constable at police station Sanodha stated that on 27/10/1978 (the night intervening 26th and 27th October, 1978) he had gone to village Shahpur where Ballu Kachhi of village Ghura gave him the letter (Ex. p. 1 ). He in turn delivered this letter to ASI Ramashankar Sen who had reached village Ghura for the investigation of the crime. The witness stated that he had reached Ghura at about 5 a. m. This fact was confirmed by Ramashankar Sen. ( 19 ) THIS chain of evidence proved that the letter (Ex. p. 1) was taken by Ballu Kachhi first to the Station Master and then at his behest to Head Constable Jagdish Prasad who was camping at Shahpur. Madhav Prasad (P. W. 1) while admitting that he had sent a letter to the Station Master denied that Ex. p. 1 was the document sent by him. Learned lower Court as well as learned council for the respondents tried to make a capital out of this denial. While the learned trial Judge used the denial of Madhav Prasad as the basis for rejecting his testimony, learned defence counsel wanted to use it for supporting his contention that the subsequent F. I. R. (Ex. p. 2) had been embellished in order to rope in all the respondents. It is clear that the criticism is highly exaggerated and if this letter is seen and appreciated in the proper perspective taking into consideration the situation as it obtained, it will be clear that the purpose of the letter was not to report about the incident but to prevent a more serious tragedy. ( 20 ) MADHAV Prasad (P. W. 1) in his anxiety to repeal the defence case that while reporting the incident be did not name all the accused respondents, chose to deny the authorship itself. It is clear that it, was foolish on: his part to have denied the signature and probably he was ill advised to do so. Sometimes person do act in a manner which is not wllolly supportable on ethical grounds, but we have to keep in mind the normal human infirmities. Madhav Prasad and other members of his family were separately prosecuted for offences under sections 148, 326/149 Indian Penal Code. Sometimes person do act in a manner which is not wllolly supportable on ethical grounds, but we have to keep in mind the normal human infirmities. Madhav Prasad and other members of his family were separately prosecuted for offences under sections 148, 326/149 Indian Penal Code. It was in that context that Madhav Prasad might have thought it wiser to deny the authorship of Ex. p. 1. However, it is clear that though he did not speak the truth on this point, the testimony could not be rejected wholesale merely on this count. It is common experience that witnesses try either to suppress or to exaggerate incidents. But it is the Court's duty to scan the evidence and try to find out the truth. ( 21 ) NOW two things become clear. First is that the complainant and the accused party had exchanged blows with diverse weapons. Members of both the parties received injuries and Nandu of the complainant party succumbed to the injuries received by him. Second is that later Damodars house was surrounded and an urgent message was sent by Madhav Prasad for help. Naturally the complainant party could not go to the police station in these circumstances. A report therefore, could be lodged only when the Sub-Inspector reached the village and came to the house of the complainants. This explains the so called delay in lodging the report Ex. p. 2. ( 22 ) INVESTIGATING Officer Ramashankar Sen stated that he collected stained earth from the spot in front of Damodars house. This specimen was sent for chemical examination and the report of the chemical examiner shows that it was stained with blood. Report of the Serologist was sought but could not be obtained till the conclusion of the trial. This finding fixed the place of incident which was the lane in front of Damodar's house. Statement of Madhav Prasad (P. W. 1) shows that their Saar was about 25 paces away from the house and house of Ghanshyam was 50 paces furl her ahead. Parvatibbai (P. W. 3) in cross-examination stated that houses of Vaidya, i. e. the accused persons with surname Vaidya, were about two to three furlongs away from Damodars house. This fact was not controverted. Thus the suggestion in defence that Damodar, Madhav Prasad, deceased Nandu and others went to Ghanshyams house and were the aggressive party cannot readily be believed. Parvatibbai (P. W. 3) in cross-examination stated that houses of Vaidya, i. e. the accused persons with surname Vaidya, were about two to three furlongs away from Damodars house. This fact was not controverted. Thus the suggestion in defence that Damodar, Madhav Prasad, deceased Nandu and others went to Ghanshyams house and were the aggressive party cannot readily be believed. ( 23 ) LEARNED counsel for the respondents argued that injuries on the person of Shardabhai wife of Ghanshyam showed that the defence story about Damodar and others being aggressors was true. It is note-worthy that three women belonging to the house-hold of Damodar had also received injuries. Thus mere fact that Shardabhai had also received injuries were not enough to support the defence version. It could very well be possible that Shardabhai also reached the spot where her husband Ghanshyam and other members of the family were engaged in a fight with Damodar and others. She might have, like the ladies of the complainants family, tried to intervene and in the process received injuries. ( 24 ) GREAT emphasis was laid by the trial Court as well as learned counsel for the respondents on the failure of the prosecution witnesses to explain the injuries received by some of the respondents. The silence of the prosecution witnesses with regard to the injuries was construed as suppression of truth for which benefit was given to the respondents. It was ignored that these very prosecution witnesses were facing a trial for causing injuries to some of the respondents. They naturally could not give any statement which could indirectly affect their case. ( 25 ) THUS after we fix the place of occurrence and appreciate the conduct of the complainant party i. e. Damodar and others who remained confined to their house for the whole night, we are inclined to hold that the statement of prosecution witnesses Madhav Prasad (P. W. 1) Damodar (P. W. 6), Deokinandan (P. W. 7) and Jairam (P. W. 8) about the origin of the incident were true. As already mentioned earlier, the report of the incident was lodged by Madhav. Prasad when the S. T. had reached the house in the early hours of the morning. In the report important facts with regard to the incident were mentioned by Madhav Prasad. As already mentioned earlier, the report of the incident was lodged by Madhav. Prasad when the S. T. had reached the house in the early hours of the morning. In the report important facts with regard to the incident were mentioned by Madhav Prasad. However, the learned Court below and also the learned defence counsel made capital out of a sentence attributed to Jairam. The sentence is JAIRAM PARSAR NE HALLA KIYA KI NARAYAN AUR GHANSHYAM KO YE LOG MAREDAL RAHEN RAINT (portion marked A to A in Ex. p. 2 ). This sentence has been, construed by learned trial Court in a manner which supports the defence theory about exercise of right of private defence of person. According to the learned trial Judge Jairam had shouted for help saying that Narayan and Ghanshyam (respondents) were being killed by Madhav Prasad and Nandu. In his deposition Madhav Prasad emphatically denied that he ever made a statement to that effect in his report. According to him he had shouted that Narayan and Ghanshyam were killing Nandu and Madhav Prasad. Other witnesses i e Deokinandan and Damodar also supported the statement of Madhav Prasad with regard to this part of his statement. Curiously their case diary statements also had been written in a manner which showed as if Jairam was shouting to save respondents Narayan and Ghanshyam. It is not possible to imagine that Jairam, the real uncle of the deceased and brother of Damodar, could have cried that his nephews were assaulting respondents Narayan and Ghanshyam. According to the statement of Jairam the first part of the incident took place in front of the Saar of Damodar. Ordinarily Narayan and Ghanshyam had no reason to be there and, therefore, it could be safely inferred that they had arrived at the spot to remonstrate in respect of the damage done to their standing crops by the buffaloes. Further statement of Jairam and the recital in the F. I. R (Ex. p. 2) show that Narayan and Ghanshyam had come to the Saar with Katarnas. It also shows that after Jairam shouted other respondents appeared on the scene carrying various weapons. If the disputed statement A to A in Ex. Further statement of Jairam and the recital in the F. I. R (Ex. p. 2) show that Narayan and Ghanshyam had come to the Saar with Katarnas. It also shows that after Jairam shouted other respondents appeared on the scene carrying various weapons. If the disputed statement A to A in Ex. p. 2 is appreciated from this angle and in the proper context of the events, it will be clear that Jairam could never give a cry attributed to him by the leaned trial Judge and the defence counsel. On the contrary, he must have shouted that Narayan and Ghanshyam were attacking Nandu and Madhav Prasad. Learned trial Court very superficially dealt with this alleged contradiction and came to a perverse finding the assault was opened by Nandu and Madhav Prasad and Jairam had shouted for help to save respondents Narayan and Ghanshyam. In fact, this misinterpretation coloured the whole approach of the learned trial Judge and he fell into an error in upholding the defence plea of private defence. ( 26 ) THUS, the picture which clearly emerges is that the incident took place initially in front of the Saar of Damodar and finally in front of his house. Deceased Nandu and prosecution witnesses Damodar and others were not the aggressors and the fight started when Narayan and Ghanshyam accused Nandu and Madhav Prasad that their buffaloes bad destroyed their standing crops. It was in this back ground that a fight took place in which Nandu lost his life and prosecution witnesses as well as some of the respondents received various injuries. ( 27 ) NEXT question which arises for consideration is whether there was material to show that the respondents or some of them had constituted an unlawful assembly with the common object of causing the death of Nandu. ( 28 ) WITNESSES examined by the prosecution on the point are Madhav Prasad (P. W. 1), Parvatibai (P. W. 3), Damodar (P. W. 6), Deokinandan (P. W. 7) and Jairam (P. W. 6 ). We have earlier noticed their relationship with the deceased. Two more witnesses Ganesh (P. W. 4) and Bhagirath (P. W. 5) were examined as eye witnesses, but they did not fully support the prosecution case and were cross-examined by the prosecution. . We have earlier noticed their relationship with the deceased. Two more witnesses Ganesh (P. W. 4) and Bhagirath (P. W. 5) were examined as eye witnesses, but they did not fully support the prosecution case and were cross-examined by the prosecution. . Statements of the witnesses mentioned above except Ganesh (P. W. 4) show that initially respondents Narayan and his father Ghanshyam had questioned Madhav Prasad and deceased Nandu about the damage done by their buffaloes to their standing crops. Gfianshyams house admittedly was not far from the Saar and it could not be said that he and Narayan had gone towards the Saar with the intention of committing any offence. The relations were strained as has been admitted by the prosecution itself and a very minor incident had the potentiality of exploding into a serious affair. This was precisely what happened. The moment Narayan and Ghanshyam complained about damage to their crops, Madhav Prasad and Nandu retorted that they were free to take their buffaloes to the cattle pound. This retort could not have been a mild one and as is clear, it resulted in an alteration. At this stage, other members from Damodars house reached the spot and it appears that relatives and companions of Ghanshyam also gathered there. Both Parties started using the weapons they were carrying. It may be noted that though in the examination in-chief Madhav Prasad (P. W. 1) had said that Mathura and Rameshwar exhorted other persons to assault Madhav Prasad and Nandu, in cross-examination he conceded that he was not able to identify the person or persons who called out for assaulting them. It may also be noted that though in his deposition Madha v Prasad had stated that persons sitting at the Chabutara also rushed towards them, this fact was not mentioned in the case diary statement (Ex. D-1) nor in the first information report (Ex. P-2 ). ( 29 ) PARVATIBAI (P. W. 3) wife of Madhav Pars ad stated that she had not seen respondent Rameshwar, Umashankar, Govind and Tulsi Ram at the spot. ( 30 ) IT is thus that because of already existing enmity, a very minor incident led to a pitched-battle between the rival factions. P-2 ). ( 29 ) PARVATIBAI (P. W. 3) wife of Madhav Pars ad stated that she had not seen respondent Rameshwar, Umashankar, Govind and Tulsi Ram at the spot. ( 30 ) IT is thus that because of already existing enmity, a very minor incident led to a pitched-battle between the rival factions. Partisans of both parties received incised and other injuries and one of them Nandu belonging to the complainant party succumbed to the fatal Ballam injury inflicted on his chest piercing the heart. ( 31 ) ON these facts we have to examine now the nature of the offence, if any committed by the respondents. It has been held earlier that a sudden quarrel flared up as a result of remonstrance and counter remonstrance in which parties of both the factions joined at one or the other stage. Members of both the parties suffred serious injuries. In a case like this where the origin of the incident could not be very clearly established and on facts it could not be said that any of the parties were the aggressors, it cannot be held that the respondents formed an unlawful assembly within the meaning of Section 141 of the Indian Penal Code. Each of the accused, persons should be held liable for his own act and not vicariously liable for the acts of others. Lalji and others v. The State of U. P. . ( 32 ) SIMILARLY on such facts as found, right of private defence will not be available to either of the factions which participated in the fight Jumman and others v. The State of Punjab. Thus we are of the view that the respondents cannot be roped in with the aid of Section 149 of the Indian Penal Code for the act committed by various individuals who had taken part in the melee. ( 33 ) NOW coming to the part attributed to individual respondents, it will be seen that the prosecution witnesses clearly ascribed Katarna injuries to respondents Kundan, Narayan and Ghanshyam and Bal/am injury to respondent Dhaniram. Narayan with whom there was a hot exchange of abuse initially is alleged to have given a Katarna blow to Nandu who how ever could avert the blow and Madhav Parsad (P. W. 1) received a minor injury on his finger. Kundan gave a Katarna blows to Nandu, Madhav Prasad and Damodar. Narayan with whom there was a hot exchange of abuse initially is alleged to have given a Katarna blow to Nandu who how ever could avert the blow and Madhav Parsad (P. W. 1) received a minor injury on his finger. Kundan gave a Katarna blows to Nandu, Madhav Prasad and Damodar. Dhaniram gave the fatal Ballam blow on Nandu's chest. The prosecution witnesses, as is not unusual, started attributing the assault to various respondents. But in view of the contradictions noted by us in their statements, are of the view that after the initial stage, when the fight bad just started, the witnesses could not have observed carefully as to which of the respondents used what weapon and injured whom We are however, clear that Narayan caused an incised injury to Madhav Prasad. Kandan caused injuries to three persons, Ghanshyam to one and Dhaniram caused the fatal injury to Nandu. We hold that Narayan Kundan and Ghanshyam committed an offence punishable under Section 324 Indian Penal Code. ( 34 ) RESPONDENT Dhaniram examined two witnesses in defence to support his alibi. Narayan Prasad (D. W. 6) stated that on 26. 10. 1918 he had met accused Dhaniram at Sagar. Another witness Hargovind (D. W. 7) stated that on 26. 10. 1978 i. e. the date of incident, Dhaniram had come to his house and stayed with him upto 10 p. m. This type of alibi unsupported by any documentary evidence cannot be accepted when there is clear and convincing evidence about Dhaniram's participation in the fight and commission of the act attributed to him. There was nothing to indicate in the cross-examination of the prosecution witnesses that there was any special grudge against Dhaniram inducing them to attribute the fatal injury to him. We, therefore, hold that Dhaniram was present and had caused the fatal injury to the deceased. As earlier we have observed that it was a case of sudden fight without any premeditation on the part of the respondents, we hold that the act of respondent Dhaniram fell within Exception 4 of Section 300 Indian Penal Code and he could be convicted only for an offence of culpable homicide not amounting to murder punishable under section 304, Part I, Indian Penal Code (See Jummans case supra ). We convict him accordingly. Today we have heard counsel on the question of sentence. We convict him accordingly. Today we have heard counsel on the question of sentence. ( 35 ) RESPONDENT Ghanshyam is an old man and had been in jail for more than three months. We sentence him to the period of imprisonment already undergone. Respondents Narayan and Kundan, in view of the fact that long time has lapsed, since the incident, are also sentenced to the period already undergone. Respondent Dhaniram is sentenced to ten years rigorous imprisonment and he will be entitled to get set off under Section 428 Criminal Procedure Code. State appeals against rest of the respondents stand dismissed. Bail bonds of respondents Kundan and Dhaniram are cancelled. They shall surrender before the C. J. M. concerned to serve out their remaining sentence. The bail bonds of the remaining respondent are discharged. Appeal partly allowed. .