JUDGMENT 1. - This appeal trises out of the judgment passed by the Sessions Judge, Alwar on June 18,1983, by which he convicted and sentenced the accused-appellants as under. Under Sec. 302/34 IPC Imprisonment for life and fine of Rs. 500/- each and in default one year's R.I. Under Sec. 325/34 IPC Three years' R.I. and fine of Rs. 100/- each and in default 3 months' R.I. Under Sec. 323 IPC one year's R.I. Substantive sentences were ordered to run concurrently. 2. Brief facts giving rise to this appeal are that on October 13, 1982, at 10 00 p m a report was lodged at police station Sadar, Alwar which is Ex. P 3 by Banbari Lai resident of village Bhajeda wherein it was alleged by him that next to the jungle Johad of the village there is a field which belongs to accused Harsahai and one Sheoram who is father of another accused Prabhulai who are Goojars by caste. This field, it is alleged, is adjacent to the field of one Ramhet son of Dataram Goojar who sold it to one Moharpal, brother of the deceased, Girraj, as this field was adjacent to the field of accused Harsahai he was also interested in purchasing but Ramhet sold it to Moharpal as the latter had offered more money and this deal between Ramhet and Moharpal started initiation of strained relations between Harsahai and Moharpal. It was alleged in the report that in the evening at about 4 00 when the complainant Banbari whose field is also nearby, was on his field, he saw Harsahai son of Budha, Chunrulal son of Hhaiiud, Prubhu IDayal sou of Sheoram and Gokul Chaod son of Harsahai all the four armed with lathies and sitting in a hut in their own field. At that time Girraj, elder brother of Moharpal, went to his field to see Gwar crop and found that about one bundle of Gwar had been cut from his field and so he went near the field of Harsahai shouting the whole of the way and protested to Harsahai as to how his Gwar has been damaged. Harsahai replied as to why he protesting to them and saying so started belabouring him, heaing which he rushed toward the well but all the four went on beating Giraj. Gokul gave a a lathi blow blow on the head of Girraj. Harsahai replied as to why he protesting to them and saying so started belabouring him, heaing which he rushed toward the well but all the four went on beating Giraj. Gokul gave a a lathi blow blow on the head of Girraj. Another blow on the head was given by prabhu. Chinnilal gave the third blow on the head and Harasahai gave lathi blow on the leg on which Girraj fell down and all the four continued beating him. Meanwhile gangasahai, Sheoram, Chander, Jairam, Balli, Herlal etc. also came to the aid of the accused persons. Girraj fell down on the spot and died. Moharpal had also come to intervene. He also became unconscious. Thereupon the accused ran away. It is alleged that one Dhanna had seen the occurrence. Thereafter it is alleged that Sharvan and Nalya also came, with their aid they had brought Girraj and Moharpal to the hospital. On receipt of this report a case under section 3302/34, 323/34 IPC was registered and investigation commenced. Police came on the place of occurrence, prepared the inquest report, site memo on the site inspection report and after doing the necessary formalities got the post-mortem of the dead body of Girraj conducted. Doctor found the following external and internal injuries on his person:- External Injuries: 1. Lacerated would 6cm x 1 cm H. deep on left side scalp sagital plain 7 cm above left ear in mid blood clots. 2. Swelling over frontal and aurital region multiple abrasions and blood clots 3. Haemotoma in 10 cm x 81/2 cm on right temporo, parietal frontal region. 4. Bruise 8 cm x 2 cm Ti. on left side neck laterrally swelling. Internal Injuries: 1. Sub, scalp thick blood clots under external internal injuries No. 1, 2, 3. 2. Skull-fractues of skull under external injury (a) Fr. of left parietal bone under Ext. injury No. 1 (Ext. Injury No. 1) and depressed fracture fragment and laceration of brain membiges and bllood clots. (b) fracture of skull of left side frontal bone in 3 places under external injury No. 2 and depressed fracture fragment in brain matter which is lacerated. (c) Fracture of right temporal and parietal bones ant part under ext. injury No. 3 and blood under-neath. 3. Sub Cut and is muscular blood clots under ext. injury No.4. (b) fracture of skull of left side frontal bone in 3 places under external injury No. 2 and depressed fracture fragment in brain matter which is lacerated. (c) Fracture of right temporal and parietal bones ant part under ext. injury No. 3 and blood under-neath. 3. Sub Cut and is muscular blood clots under ext. injury No.4. In opinion of the Doctor the death occurred due to head injury with fracture on skull compression and laceration of brain and haemorrhage. 3. Injured Moharpal was also medically examined and his injury report was also prepared which is Ex P 2. When the accused were arrested injuries were also found on their person and, therefore they were also got medically examined and injuries were found on the person of Prabhu Dayal & Harsahai. After completing the necessary investigation the police filed a charge-sheet in the court of Chief Judicial Magistrate Alwar who committed the accused to the court of Sessions for trial. Charges were farmed against the accused-appellants for offences under section 302 r. w. section 34, 323 and 32.5 IPC against Chunnilal and 325 r. w. 34 agamst all other accused persons. The accused denied to the ctarge and claimed to be tried, 4. At trial the prosecution examined 8 witnesses in support of its case out of whom PW 2 Banbarilal is the author of the first information report. PW 3 Mangtu and PW 5 Sharvan have been examined as eye-witnesses and PW 4 is the injured eye-witness. PW 1 and PW 6 are medical officers while others are formal witnesses. The accused denied the story as deposed by the prosecution witnesses and accused Harsahai and Prabhu Dayal filed their statements in writing. According to the report accused Prabhu Dayal and Har Sahai were sitting in their own hut and guarding their own filed. At about 4.00 p.m. Girraj whose field is little ahead of their field came abusing to their hut and told them as to why they have committed the theft Gwar on which they told him as to why they should have committed any theft. They denied the allegation on which Girraj who armed with a lathi gave a blow to Harsahai who is an old man and Prabhu came to his rescue but injuries were also caused to Prabhu. They denied the allegation on which Girraj who armed with a lathi gave a blow to Harsahai who is an old man and Prabhu came to his rescue but injuries were also caused to Prabhu. On their raising alarm number of person came from towards the village and some persons came to the aid of Girraj also and there was a fight between both the parties, as a result of which deceased and Moharpal also sustained injuries and so also the accused Harsahai and Prabhu Dayal. The learned trial Judge found the accused appellants guilty of offence under section 302 r. w. section 34 and 323 and 325 r.w. section 34 [PC and convicted and sentenced them as indicated above. This is how this appeal has been preferred before us challenging the conviction and sentence passed against the accused-appellants. 5. Mr. Bhimaj Purohit, appearing on behalf of the accused-appellants submitted that the prosecution is guilty of withholding Dhanna who was the only witness named in the first information report as an eye-witness and instead have introduced Mangtu and Sharvaa who are false and got up witness and the conviction of the accused-appellants cannot be based on their testimony. It is submitted that there are two paralial stories in the case and the incident is admhted The court has to assess the prosecution evidence in the light of the defence raised and if the prosecution story is tested in the correct prospective then the prosecution narration lacks to stand. It is submitted that admittedly the incident took place when Girraj went to the hut of the accused persons and in order to raise a protest about damaging/stealing a part of Gwar crop for which there was no basis for Girraj to assume that the accused could have done so and it is the prosecution its own admitted case tnat wuu deceased Girraj came he had come in an angry mood and had been shouting all the way. It is submitted that the injuries on the person of the accused it indicate that complainant Girraj had come armed and he was assisted in causing injuries by Moharpal and other when they came on an alar It is further submitted that accepting the whole prosecution story one has to grope in dark as to how the incident originated and who was the author of fatal blow and it is further submitted that a case of right of private defence of person is brought out from the circumstances of the case. It is submitted that the place of occurrence is not the field of the complainant but is the hut belonging to the accused which clearly indicates that the complainant party was the aggressor. 6. Mr. G.C. Chatterjee, appearing on behalf of the State and assisted by Mr. R.N. Sharma, counsel for the complainant, submitted that the incident has not taken place in the but has taken place outside the hut and the accused persons inflicted the injuries on the person of Girraj when the was returning after lodging the protest and, therefore, right of private defence is not available to the accused persons. It is further submitted that the deceased had gone unarmed to the hut and the accused persons had no right to cause injuries on his person. In any eventuality it is submitted that this is atleast a case where right of private defence has bee exceeded. 7. We have given our earnest consideration to the arguments advanced by both the sides and have perused the whole record. 8. Some of the facts in this case are admitted which may be summarised as under. That the fields of the accused and the deceased are close by and the deceased had purchased a field which was adjacent to the fields belonging to accused Harsahai. It is also an admitted case that the accused were sitting in their own hut. It is also admitted that both the parties sustained injuries and the place of occurrence is also not the field of the deceased and injured Moharpal. It is also an admitted case that Girraj went to the hut of accused persons who were merely sitting inside the hut. It is further admitted case that when the deceased Girraj had gone he had gone shouting whole of the way. It is also an admitted case that Girraj went to the hut of accused persons who were merely sitting inside the hut. It is further admitted case that when the deceased Girraj had gone he had gone shouting whole of the way. It is also an admitted case that the field of Bandari who had lodged the report and is named to be an eye-witness has two fields intervening between his field and the place of occurrence. It is also admitted that persons on both the sides came to the place of occurrence when the incident had already started between Girraj and Harashai and others. Therefore, the case remained in a very narrow ambit and this court has only to decide whether there is clinching evidence on behalf of the prosecution to show that the accused had common intention to cause injuries on the person of the deceased and Moharpal and whether the prosecution has succeeded on showing whether the prosecution story is such on the basis of which conviction of the accused-appellants can be sustained either for offence under section 302 r/w. section 34 IPC and if not then for the individual injuries caused. The accused had a right of private defence of their person and it is in this light that the whole evidence has to be scrutinized. 9. PW 2 Banbarilal who is also the author of the first information report, is the person who had set the ball rolling as he had gone the police station to lodge the report. He has admitted that the accused were in their own hut Girraj came and protested but the accused had clearly denied that had done so. He further submits that accused were saying that Girraj was making false allegation. He in his statement stated that all the four accused inflicted injuries when Girraj was going back. But this part of the statement has neither been mentioned in the first information report nor in his police statement and he has been confronted with both of them. He could not give as explanation about the absence of this fact that Girraj was inflicted injuries while he was retreating. This witness has stated that injuries were caused on the head by Prabhu Dayal, Gokul and Chunnilal and Harsahai caused injury on the neck. But this part of his statement does not find corroboration from the statement of Dr. PW 1. This witness has stated that injuries were caused on the head by Prabhu Dayal, Gokul and Chunnilal and Harsahai caused injury on the neck. But this part of his statement does not find corroboration from the statement of Dr. PW 1. This witness further states that Mangtu and Moharpal came on the spot subsequent to when Girraj fell down. But he does not name Mangtu as an eye witness in the first information report lodged by him. He on the contrary named one Dhanna as an eye witness of the occurrence and he denied the presence of Dhanna in his statement in the court. This witness, therefore, has changed his statement on material point and has given a goby to his police statement and the first information report. This witness has tried to explain the injuries on the person of the accused in the court by saying that Moharpal has caused injuries on Prabhu and Harsahai in the exercise of right of private defence. 10. PW 3 Mangtu has not been named as an eye-witness in the first information report and, therefore, he has been subsequently caught up as an eye witness. Even if his testimony is read he is a chance witness as he was going with the bullocks from forest to his house and he had seen hot exchanges between Harsahai, Gokul, Chunni and Prabhu on one side and Girraj on the other. He states that he had seen ail these four persons inflicting injuries on Girraj and just then cause Moharpal who tried to intervene and was also belaboured. This witness has also admitted that the accused had denied to have damaged any crop in the field of the complainant and he does not explain the injuries on the person of the accused. 11. PW 4 Moharpal is an injured eyewitness and is the real brother of the deceased. According to him when he heard the noise in the village he went toward Lallu's field where he found that his brother was being belaboured by the accused persons and gave graphic description of the injuries, tie stated that when he tried to intervene he too was beaten. He gives the cause of the dispute also that the accused were annoyed because they have purchased a field in their neighbourhood. He gives the cause of the dispute also that the accused were annoyed because they have purchased a field in their neighbourhood. In cross examination he admits that the deal about the field had taken place about a year and half back and in between there was neither any dispute about it nor there was any litigation. Regarding the injuries on the person of the accused this witness has stated that he snatched the lathi from Harsahai and wanted to save himself, it was in this process that the accused sustained injuries. He further states that he has not said so in his police statement. This witness has also resiled from his police statement regarding the presence of the eye-witnesses who were initially named by Banbarilal and himself in their police statements, This witness is a highly interested witness and his testimony has to be closely scrutinized. 12. PW 5 Sharvan names only three accused, namely, Harsahai, Gokul and Chunnilal, but later on added the name of Prabhu also. He has also not been shown as an eye witness in the first information report nor his presence has been shown by other witnesses of the prosecution. His house is about 4 to 5 hundred paces from the place of occurrence. He initially stated that he heard the cries while he was at home, but in court he has shown his presence by saying that he was cutting the grass near the place of occurrence. 13. A bare perusal of the statements of these witnesses does not inspire any confidence. This is the total evidence in the case. Scrutinising the above evidence we find that the prosecution has miserably failed to show as to how the incident started and has also failed to explain the injuries on the person of the accused. The prosecution itself has come with a case that the incident has taken place when the deceased Girraj went to lodge a protest about the accused damaging the crop. There is no evidence worth the name even to suggest that it was the accused appellants who had at any time either went or all of them gone to the field of the complainant and damaging the Gwar crop or committed the theft. There is no even the circumstantial evidence to suggest the same. There is no evidence worth the name even to suggest that it was the accused appellants who had at any time either went or all of them gone to the field of the complainant and damaging the Gwar crop or committed the theft. There is no even the circumstantial evidence to suggest the same. Even site-inspection memo shows that in the field of deceased a very small amount of Gwar crop had been cut and the same was lying on the spot itself. Thus, it cannot be accepted for a moment that either or any of the accused were responsible for doing the same and in this eventuality we are constrained to hold that Girraj for no reason got suspecion about the accused and went to their hut. He had no occasion to go there and in our opinion he was clearly an aggressor when he went in as aggrassive mood to the hut as is admitted by the prosecution witnesses and picked up the quarrel. In these circumstances when the incident has not taken place in the filed of the deceased and the deceased was an aggressor there was no question of any of the accused sharing the common intention and if that be so section 34 IPC cannot be made applied on the facts of the case and, therefore, the individual liability of the accused can alone be looked into. According to PW 1 Dr. P.S. Aggrawal cause of death was injuries No. 1 and 2 and we do not know as to who is the author of either or both these injuries. On the contrary, the manner in which the injuries have been assigned by the witnesses in their ocular statements in contradicted by the medical evidence and, therefore, individual liability for the fatal blow cannot be fastened. It we come to the individual liability in the absence of fastening particular injury to particular accused we have to see that whether in the facts and circumstances of the case the accused persons are entitled to cause the injuries to the extend the deceased and Moharpal have received in case they were the aggressors and also whether the defence of the accused is more probable. We have also mentioned above that most of the facts are admitted and in the eventually, we are unable to fasten individual liability on any or all the accused for the injuries caused either on the deceased or Moharpal. We have no doubt in our mind left that the defence story can also be probable. In this case the accused have set up the plea of private defence specifically in the place of occurrence being near the hut of the accused and absence of explanation for the injuries on the person of the accused Harsahai and Prabhu Dayal we are inclined to give to the accused the benefit of right of private defence of their person. Right of private defence of body in the instant case clearly extends to the extent of harm caused as section 34 IPC cannot be pressed into service as already mentioned above. 14. As a result of the aforesaid discussion we are unable be sustain the conviction of the accused-appellants. The appeal of the accused is accepted and the judgment of the learned Sessions Judge, Alwar, dated June 18, 1983 is set aside and consequently the conviction and sentence and all the accused-appellants are acquitted of all the charges levelled against them. The accused Prabhu Dayal and Gokul are in custody, they shall be released forthwith if not required in any other case. The accused-appellants Harsahai and Chunni are on bail, they need not surrender to their bail bonds.Appeal accepted. *******