JUDGMENT 1. - Three accused persons namely, Kapoorsingh, Dalelsingh s/o Laxmansingh & Sukhsingh s/o Dalelsingh were tried for the offences Under Section 302, 302/34, 307/34, IPC by the learned Sessions Judge, Sri Ganganagar, who by his judgment of June 9, 1975 acquitted the accused appellant Sukhsingh of all the charges. He, however, convicted the other accused-appellants namely Kapoor Singh & Dalelsingh for the offences Under Section 303/34 IPC and sentenced each of them to imprisonment for life. They were acquitted of the offences under Section 307 and 307/34, IPC. The accused Dalel Singh was further convicted for the offence under Section 325, IPC and was sentenced to rigorous imprisonment for two years and to pay a fine of Rs. 300/-, in default of payment of fine to further undergo one month's rigorous imprisonment. Dalel Singh's substantive sentences were ordered to run concurrently. 2. The prosecution case in brief is that the deceased Harnam Singh and Gurnam Singh were the real brothers. One Balwant Singh had sold Killas from 1 to 20 of Square No. 129 situated in village 24 BB to Raj Singh son of Harnam Singh and Bain Singh s/o Gurnam Singh having an half and half share for a sum of Rs. 8,000/- on 2-8-1963. All the twenty Killas were cultivated by Harnam Singh and his sons, since the date of purchase, as Harnam Singh's share of the land situated in Punjab, was cultivated by Gurnam Singh. It is alleged that the complainant party had sown the crop of Taramira in its land and they were harvesting Taramira. It is alleged that Raj Singh (16) s/o Harnam Singh (PW 7) and his maternal uncle's son Amarjit Singh (PW 11) had gone to harvest Taramira crop in the morning of 8-4-1974. At about 4.45 p.m., Harnam Singh and his son Teja Singh (13) the younger brother of Raj Singh had come to their land with a cart in order to remove the crop, which has already been cut, 15-20 minutes after the arrival of Harnam Singh, as per the version given in the FIR (Ex. P/3) lodged by Raj Singh at 5.45 p.m. at the police station, Padampur, Dalel Singh, Kapoor Singh, Sukha Singh, Laxman Singh, Gela Singh and Benta Singh came in a cart and after getting down from the cart, ran towards Harnam Singh. P/3) lodged by Raj Singh at 5.45 p.m. at the police station, Padampur, Dalel Singh, Kapoor Singh, Sukha Singh, Laxman Singh, Gela Singh and Benta Singh came in a cart and after getting down from the cart, ran towards Harnam Singh. Kappor Singh Gela Singh and Sukha Singh were armed with Selas, Dalel Singh with gandhali, Banta Singh with Kassia and Laxman Singh with Soti. Soon thereafter they started beating Harnam Singh. Being frightened, he ran and narrated the occurrence to Bagdawat and Ganpat Bishnoi. Thereupon, both of them accompanied to the spot and rescued his father from Dalel Singh and others. Dalel Singh and others also inflicted blows on Amarjit Singh. He observed that his father has sustained injuries on the head and abdomen, which were bleeding. Amarjit Singh had also sustained an injury on his hand, which was also bleeding. Both of them were removed to the hospital. On this report, PW 12 Jala Singh registered the case under Sections 307, 147, 149, 447 IPC. The SHO Jala Singh went to the hospital, Padampur and recorded the statement (Ex. P/26) of Harnam Singh under Section 161, Cr.PC. Upon the advice of the doctor, both Harnam Singh and Amarjit Singh were sent to the hospital at Ganganagar. PW 6 Dr. Ram Lal Goyal, on receipt of the police requisitions Ex. P/11 and Ex. The SHO Jala Singh went to the hospital, Padampur and recorded the statement (Ex. P/26) of Harnam Singh under Section 161, Cr.PC. Upon the advice of the doctor, both Harnam Singh and Amarjit Singh were sent to the hospital at Ganganagar. PW 6 Dr. Ram Lal Goyal, on receipt of the police requisitions Ex. P/11 and Ex. P/12, on 8-4-1974 at 9.00 p.m. went to the hospital and examined the injuries of Harnam Singh (55) at 9.05 p.m. He found the following injuries on the person of Harnam Singh: (1) Punctured wound vertical in direction 3/4" x 1/4" x depth on the left side of abdomen; (2) Punctured wound vertical in direction 1" x 1/4" x depth (?) on the lateral aspect of left kidney area on the front of abdomen ; (3) Punctured wound 1/4" x ⅛" x 1/2" on the front of right thigh; (4) Punctured wound 2" x 1/4" x depth (?) on the left side of bladder area; (5) Punctured wound 3/4" x 1/2" x (?) just below umbillicut on right side of abdomen; (6) Incised wound 11/2" x 1/4" x 1/2" on the left upper arm on lateral aspect; (7) Incised wound vertical in direction 1" x 1/2" x 1/2" on the medial aspect of left arm on lower region; (8) Lacerated wound vertical in direction 2" x ⅛" x, ⅛" on the left parietal region; (9) Lacerated wound vertical in direction 2" x ⅛" x ⅛" on 1" medial to injury No. 8; (10) Lacerated wound oblique in direction 1" x ⅛" x ⅛" on the half inch medial to injury No. 8. He also examined the injury on the person of Amarjit Singh and found the following injury:(1) Lacerated wound oblique in direction of size 2" x 1/4" x 1/4" on the posterior lateral aspect of right fore-arm at lower third region. The injury was suspected grievous in nature and caused by blunt weapon. 3. The dying declaration of Harnam Singh was further recorded by the Munsif and Judicial Magistrate, First Class, Sri Ganganagar Shri Sukhdarshan Kumar Bansal (PW 13) on 8-4-1974 at 10 p.m. and was completed at 10.30 p.m. PW 15 Dr. Nawal Kishore Sharma operated upon Harnam Singh on 9-4-1974 and on opening the abdomen, he found these perforations of the illium and the omentum was getting out of the wound. There was a tear in the mesentary. Nawal Kishore Sharma operated upon Harnam Singh on 9-4-1974 and on opening the abdomen, he found these perforations of the illium and the omentum was getting out of the wound. There was a tear in the mesentary. Harnam Singh died on 11-4-1974 at 7 p.m. Inspite of operation, he could not be saved and he died due to shock and peritonitie Autopsy on the dead body was conducted by Dr. Ram Lal Goyal on 12-4-1974 at 9.30 a.m. 4. On 9-4-1974, PW 12 Jala Singh proceeded to the spot and prepared the site plan (Ex. P/4) and site note Ex. P/4A. He seized the bloodstained and sample earth from Killa No. 7 vide memo Ex. P/8. Blood-stained clothes of the deceased and the injured were seized. The accused Sukha Singh was arrested on 12-4-1974 and Dalel Singh arrested on 14-4-1974. The accused Kapoor Singh was arrested on 15-4-1974 in the Ganganagar Hospital by PW 4 Budh Ram. On 16-4-1974 the accused Sukh Singh gave a disclosure statement Ex. P/29 in pursuance of which, gandhali Article 4, Jayee Article 3 and barchhi Article 5 were recovered from a heap of Turi in the kotha of Kapoor Singh vide memo Ex. P/2. The S.H.O. also took in his possession certain documents. After completion of the investigation, charge sheet was presented against the accused persons namely; Kapoor Singh, Dalel Singh, and Sukha Singh. Gela Singh and Banta Singh were not challaned. On trial, after discussing the evidence, the learned Sessions Judge observed as under: (1) That the land in question was purchased in the name of Raj Singh son of Harnam Singh and Banta Singh son of Surnam Singh in the year 1963. Harnam Singh and Gurnam Singh were both brothers; (2) Raj Singh or for that matter his father Harnam Singh deceased were in possession of this land from the time it was so purchased. It is only in the year 1972 that Gurnam Singh entered into an Agreement of Sale on 5-9-1972 with Dalel Singh in respect of half the land and it is since then the accused are claiming to have got into possession of the land. It is, therefore, clear that before 1973 the accused had nothing to do with this land; (3) The original agreement has not been produced by the accused in any court so far. It is, therefore, clear that before 1973 the accused had nothing to do with this land; (3) The original agreement has not been produced by the accused in any court so far. In this court, they have not even cared to produce even the copy they produced in the Revenue Court. In the absence of that documentary evidence which admittedly exists, it is very difficult to hold that the accused did not ever purchase the land and if they did so which were the Killas, they purchased from Gurnam Singh or for that matter his son Beant Singh; (4) The history of the criminal prosecution revealed by various FIRs and charge-sheets Ex. P/20 to Ex. P/24 goes to show that the complainant party has been vigorously contesting the attempts at possession made by the accused party. Even the police has been challaning the accused for trespass against the lands of Harnam Singh and his son. The best way for the accused was to bring Gurnam Singh in evidence to show whether he was ever in possession of the land in dispute or did he ever agree to sell to the accused but no such attempt was made by them; (5) The evidence of Maghar Singh (PW 1) who has also got 5 bighas in the same square, is of little help of to the accused persons because on account of relationship or otherwise such evidence can always be procured; (6) On the day of occurrence Killa No. 7 was in possession of the complainant party and Taramira was sown and harvested by them. There is nothing to doubt the testimony of Raj Singh, Amarjeet Singh and Bagdawat in this respect. I, therefore, hold that on the day of occurrence, the land was in cultivatory possession of the complainant party. They had sown Taramira and had cut the same. The accused had not sown any crop and their entry into the field was nothing but an act of trespass and aggression. 5. The learned Sessions Judge further found that the accused had no right of private defence either of property or of person available to them. The learned Sessions Judge, then, proceeded to consider the question as to which of the three accused-persons caused what injuries and what offence is committed by them. 5. The learned Sessions Judge further found that the accused had no right of private defence either of property or of person available to them. The learned Sessions Judge, then, proceeded to consider the question as to which of the three accused-persons caused what injuries and what offence is committed by them. He found that there is no evidence against the accused Sukhasingh and that he can also not be brought into the mischief of Section 34 IPC because there was no evidence of any pre-concert taking place any time before Kapoor Singh and Dalalsingh attacked Harnamsingh & Amarjitsingh. It was found that on Amarjit Singh the injury was caused by Dalai Singh which was a fracture on his right arm, so he was guilty of Section 325, IPC. As regards the injuries on the person of Harnam Singh, the learned Sessions Judge found that both Dalel Singh and Kapoorsingh attacked on the deceased Harnam Singh and Kapoor Singh was directly responsible for the fatal injuries and with regard to applicability of Section 34, IPC. the learned Sessions Judge observed that the intention to cause his death seems to have been formed just before the blows were delivered and one can easily infer the presence of common intention on their part. They, both beat him. In view of the aforesaid findings, Sukha Singh was acquitted and Kapoor Singh and Dalel Singh were convicted and sentenced as above. Dis-satisfied with their convictions and sentences, the present appeal has been filed. 6. We have heard Mr. R.N. Munshi, learned counsel for the appellants and Mr. L.S. Udawat, learned Public Prosecutor for the State, assisted by Mr. P.N. Mohanani, learned counsel for the complainant. 7. The most crucial question in this appeal before us is so to who cultivated the Taramira crop in the disputed land ? To whom, the crop of Taramira belonged ? The learned Sessions Judge in connection with determining the question of possession considered the FIRs lodged by Harnam Singh and challans put up by the police from time to time. The learned Judge also considered that the Revenue suit was filed, in which temporary injunction was obtained by the complainant party and the order of temporary injunction was in operation at the time of occurrence. The learned Judge also considered that the Revenue suit was filed, in which temporary injunction was obtained by the complainant party and the order of temporary injunction was in operation at the time of occurrence. The learned Judge also took into consideration the khasragirdawari and the statement of Omprakash Patwari and the oral evidence led by the prosecution and also the case of the defence. 8. Admittedly, the land belonged to one Balwant Singh, who was a permanent allottee of Sqaure No. 129. Killas No. 1 to 20 were purchased in the name of Raj Singh S/o Harnam Singh and Baint Singh s/o Gurnam Singh for Rs. 8000/-on 2-8-1963. The remaining five killas of this Square from Killas No. 21 to 25 are said to be of Maghar Singh (DW 1). After the purchase of the land, it is to be seen as to who remained in possession of Killas No. 1 to 20. The evidence is that since the date of purchase, Harnam Singh was in possession of these killas and for the first time, the accused-persons Dalel Singh, Kapoor Singh and Sukha Singh committed the trespass over the land on 18-8-72 and 19-8-72 and up-rooted the Gawar crop, which was about 9 inch in height by running a tripheti with the help of bullocks and camels. When they were doing so, on 19-8-1972, he went to prevent them, but Dalel Singh said that Gurnam Singh has given this land to them. Harnam Singh lodged a report Ex. P./20 on 20-8-72 at 1.15 p.m. and charge-sheet was presented against the accused under Section 447, 427, IPC. A further FIR was lodged by Harnam Singh on 20-12-1972 (Ex. P/22) on which case under Section 447, 324, 323/34, IPC was registered against Dalai Singh, Kapoor Singh, Surta Singh and Gela Singh. It was reported that on 20-12-1972, at about 8-9 a.m. Kapoor Singh had come in Killa No. 11 and started ploughing it, which was resisted. Thereupon, he went away telling that they will get the matter decided. Thereafter, at about 1.30 p.m. the accused persons came armed. At that time Harnam Singh and Raj Singh were sowing taramira. Dalel Singh then said that the land has been mortgaged by Gurnam Singh with them. Then, he was inflicted blows by the accused-persons. Charge sheet (Ex.P/23) was presented against the accused-persons. A further report was lodged on 18.3.73 (Ex. Thereafter, at about 1.30 p.m. the accused persons came armed. At that time Harnam Singh and Raj Singh were sowing taramira. Dalel Singh then said that the land has been mortgaged by Gurnam Singh with them. Then, he was inflicted blows by the accused-persons. Charge sheet (Ex.P/23) was presented against the accused-persons. A further report was lodged on 18.3.73 (Ex. P.23) on which a case under Section 302, 447, 147 and 148, IPC was registered against Laxman Singh, Dalel Singh, Kapoor Singh, Sukha Singh and Ladu. In this report, Harnam Singh's version was that the harvested crop of Taramira was forcibly removed. Dalel Singh at that time said that the land has been given to them by Gurnam Singh. 9. The prosecution further produced a copy of the order dated 12 4-1973 passed by the Sub-Divisional Officer, Karanpur in Revenue Suit No. 17 of 1973 Harnamsingh v. Dalelsingh (Ex. P/25) whereby, an ex-parte injunction order passed on 6-3-1973 was confirmed. The ex-parte order was passed by the Additional Collector as at that time, the post of Sub-Divisional Officer, Karanpur was lying vacant. By ex parte order Dalelsingh and other non-petitioners were prevented from interfering in the plaintiff's cultivation. The Additional Collector further passed an order after submission of the reply by the non-petitioners that none of the parties shall cut the standing crop nor remove the harvested crop and in case, damage is going to be caused to the crop then the Tehsildar may get it cut and keep it in proper custody. This order continued to be in force upto 29-3-1973 and matter was ultimately heard and the order dated 12-4-1973 was passed whereby the non-petitioners were restrained from interfering in the possession of the plaintiff in killas No. 1 to 20.This order continued to remain in force on the date of occurrence and was confirmed in appeal filed by Dalelsingh by the order of the Revenue Appellate authority dated 20-3-1975 (Ex.P/44). 10. Besides the above documents, the prosecution has further produced khasragirdawari of S.Y 2030(Ex.P/6) and the order of the Tehsildar Padampur dated 28-10-1974 (Ex.P/7) and has examined PW3. Omprakash Patwari. PW 3 Omprakash has deposed that the name of the cultivator was resumed to be stilted in the khasra-girdawari from Rabi-1973. Before that for about 8-10 years, the name of the cultivator was not shown in the Girdhawari. Omprakash Patwari. PW 3 Omprakash has deposed that the name of the cultivator was resumed to be stilted in the khasra-girdawari from Rabi-1973. Before that for about 8-10 years, the name of the cultivator was not shown in the Girdhawari. He had recorded in the Girdawari of S.Y. 2030-31 ' Mutnaza" (disputed) but under the order of the Tehsildar (Ex. P/7). the girdawari of Killas No. 1 to 20 of Square No. 129 was entered in the name of Rajsingh. A perusal of the order (Ex.P/7) would show that spot verification was done by the Tehsildar and thereafter he directed for entering the name of Rajsingh in the Girdawari of S.Y. 2031. In the cross-examination of this witness, the Girdawari of S.Y.2029 (Ex D/1) was put. The witness thereupon stated that he had put a note in Ghata Bahi on 23-3-1973 and a copy of that note was also made in khasra-girdawari of S.Y. 2029. There is no entry in Column No. (Ex D/1) as to who cultivated the land but a note was put by the Patwari that killas No. 1 to 5,8,9 16 and 17--10 Bighas were in possession of Harnamsingh and killas No. 6,7,11, to 15, 18 to 20 10 bighas were cultivated by Dalelsingh after entering into possession. In this connection, he stated that he has made this note in order to make the recovery of the rent after verifying on the spot from motbirs. 11. From the prosecution side, there is the oral evidence consisting of PW7 Rajsingh PW 8, Tejasingh PWM, Amarjitsingh and PW 10 Bagdawatram. Further there is a dying declaration of the deceased (Ex.P/26) in which, he stated that 20 bigas land of Square No. 129 belonging to him and Gurnamsingh was in his possession in which taramira crop was sown, after the rains, which had become ripe and for harvesting the crop of Taramira, his son Rajsingh & his brother-in-law's son Amarjisingh had gone in the morning. 12. In defence, the accused examined DW 1 Maghar Singh and DW 2 Dalvirsingh. The remaining five killas No. 21 to 25 of Square No. 129 belong to DW 1 & he has stated that eight killas namely; 6,7,11 to 15 & 20 of Square No. 129 are in possession of the accused-persons for the last five years, and they have been cultivating these five killas. The remaining five killas No. 21 to 25 of Square No. 129 belong to DW 1 & he has stated that eight killas namely; 6,7,11 to 15 & 20 of Square No. 129 are in possession of the accused-persons for the last five years, and they have been cultivating these five killas. DW 2 Dalvir Singh is nephew of Dalel Singh in relation. When he was questioned, that he has given a false statement being a relative of the accused-person, he came out with an answer that the deceased Harnam Singh is his brother-in-law as his father-in-law and Harnam Singh's father were the real brothers. DW 2 Dirvir Singh holds the adjoining Square No. 130. He had deposed that the said eight killas were in possession of the accused-persons and at the time of occurrence, there was taramira crop belonging to the accused-persons. He has also come out with the version of the occurrence as to how the occurrence took place. 13. In the light of the above evidence, it is to be seen as to which party was in possession of the disputed kilas at time of occurrence. It may be stated that the complainant party has come out with a case that right from the date of purchase the entire land was in its possession and for about 9 years, they remained in undistrubed possession. Interference with their possession started from 18-8-1972, as would appear from the FIR Ex. P/20. The complainant party has come out with an explanation as to how the whole of the land is in its possession, despite the fact that it had only half share in it, i.e. 10 kilas. Harnamsingh and Gurnamsingh were the real brothers and according to the version of the complainant party, Harnamsingh had the land in Punjab which was with Gurnam Singh. It is significant to note that partition has not taken place between Harnamsingh and Gurnmsingh and it is not the case of any of the parties that any partition had taken place and specific ten killas had come to the share of Gurnamsingh in Square No. 129. When partition had not taken place neither the specific killas could be mortgaged nor they could be sold. The question would be whether Gurnamsingh was ever in actual physical possession over any killas of the land jointly purchased in the name of Rajsingh and Baintsingh. When partition had not taken place neither the specific killas could be mortgaged nor they could be sold. The question would be whether Gurnamsingh was ever in actual physical possession over any killas of the land jointly purchased in the name of Rajsingh and Baintsingh. There is absolutely no evidence on record to show that Gurnamsingh was ever in possession of his half share or of any of the killas of Square No. 129. A perusal of FIRs Ex.P 20, P/22 &P/24 dated 20-8-1972, 20-12-72 and 18-3-1973 respectively, would show that the case of Harnamsingh is consistent that Gurnarnsingh's share was also in his cultivation. Besides that, khasra-giradavvari Ex. P/6 and the order of the Tehsildar (Ex. P 7) also establish the possession of the complainant party over the disputed land. What is the most material evidence in the present case is the judgments (Ex. P 25) dated 12-4-1973 and Ex. P/44. An ex-parte order was passed against the accused-party on 6-3-1973 i.e. right from 6-3-1973 the accused party was restrained from interfering in the possession of the complainant party and at the time of occurrence, the order already stood confirmed and was in operation. Thus, the orders further go to establish that the land in question was in possession of the complainant party. 14. Mr. R.N. Munshi, learned counsel for the appellants submitted that from Ex.P 20, 22 and 24 it would appear that Dalelsingh had asserted that the land was given to them by Gurnamsingh and was mortgaged by Gurnamsingh with them as stated in Ex.P 22. No doubt, Harnamsingh came out with this version of Dalelsingh in his reports to the police but on that basis it can not be said that actual physical possession was delivered by Gurnamsingh to Dalelsingh. No documents, neither mortgage-deed nor sale-deed has been produced by the accused nor Gurnamsingh has been examined, and there is no specific case that no what date the actual physical possession over the eight killas was delivered to Gurnamsingh to them. On the contrary, Harnam's case is very consistent. Mr. R.N. Munshi submitted that the accused persons were acquitted in cases arising from the FIR Ex.P 20 and P/24. The certified copies of the judgments were produced at the time of filing of the second bail application No. 269/77. On the contrary, Harnam's case is very consistent. Mr. R.N. Munshi submitted that the accused persons were acquitted in cases arising from the FIR Ex.P 20 and P/24. The certified copies of the judgments were produced at the time of filing of the second bail application No. 269/77. No doubt, the accused persons were acquitted in the two cases, as would be evident from the judgments rendered in 1976, and it appears that the judgments of the Revenue Courts rendered in the Revenue suit were not produced and the findings were recorded for want of evidence. The question of possession has to be examined in the light of the entire evidence placed on record of this case. In our opinion, there is satisfactory, convincing and overwhelming evidence to establish that the entire twenty killas of Square No. 129 were in possession of Harnam Singh and at the time of occurrence when the injunction order was in operation, the land was in cultivation of Harnam Singh and the crop of Taramira belonged to Harnam Singh. We agree with the finding of the learned Sessions Judge regarding the possession of (he complainant party over the land in question at the time of occurrence. 15. The next question is as to how the occurrence took place. Having found that possession over the land was with the complainant party at the time of occurrence and the Taramira crop belonged to that party, that being so, the prosecution case appears to be true, that on the date of occurrence, Taramira crop was harvested by Raj Singh and Amarjit Singh. They had gone to the field in the morning and cut the taramira in some killas. Harnam Singh and Teja Singh would naturally go to the field with a cart in order to collect the crop. The prosecution case, therefore, appears to be truthful that when the crop was being collected, the accused-persons arrived in the field and the occurrence took place, thereafter, as alleged by the prosecution. 16. Mr. Harnam Singh and Teja Singh would naturally go to the field with a cart in order to collect the crop. The prosecution case, therefore, appears to be truthful that when the crop was being collected, the accused-persons arrived in the field and the occurrence took place, thereafter, as alleged by the prosecution. 16. Mr. R.N. Munshi referred to a decision of the Supreme Court in Antu v. The State of Haryana, AIR 1971 SC 1213 , wherein, their Lordships observed as under - "Where record showed that dispute as to possession of land was going on at the time of incident, the mere fact of possession of the land by prosecution party is not sufficient to infer that accused party must have been the aggressors and that they were therefore responsible for murder or attempted murder This is so especially where the prosecution failed to account for the better armed larger number of accused receiving 57 injuries from the smaller number of prosecuting party who received only 7 minor injuries." It is true that even when the accused-party in possession, the accused-party need not be aggressor. It would all depend on the facts and circumstances of each case to arrive at a finding as to which party is aggressor and inference of aggression cannot be drawn simply on the basis of non-possession of the accused-party. 17. So far as the facts of the present is case are concerned, the matter has to be examined in the back-ground of the First Information Reports and the revenue suit and the orders passed therein. It may be mentioned that there was no occasion for the complainant party to have arms with them. According to the prosecution case, the members of the complainant party namely, Raj Singh and Amarjit Singh were engaged in harvesting the crop and their case is that they had sickles in their hands. According to the prosecution, the accused came armed. In the circumstance of this particular case, the factor of possession is a significant factor to determine the question as to whether the accused-party was aggressor. To us it appears that the accused party wanted to take possession forcibly when the possession was not delivered to them by their predecessor in title that they wanted to take advantage of the harvested crop and with that object, they came over the land fully armed. To us it appears that the accused party wanted to take possession forcibly when the possession was not delivered to them by their predecessor in title that they wanted to take advantage of the harvested crop and with that object, they came over the land fully armed. It is they who had grievance of remaining out of possession. The evidence has to be judged in this back-ground. As regards the main occurrence, the prosecution has led the evidence of Raj Singh (PW 7), Teja Singh (PW 8), Amarjit Singh (PW 11) and Bagdawatram (PW 10). Besides the testimony of these four witnesses, there are two dying declarations. Raj Singh has. also lodged the report soon alter the occurrence, which is quite prompt. Mr. R.N. Munshi, learned counsel for the appellants sumbitted that reliance cannot he placed on the testimony of Raj Singh, Teja Singh, Amarjtt Singh and Bhagdawatram, so far as the main occurrence is concerned. Raj Singh has staled that when the accused-persons arrived, they had surrounded his father and out of fear he ran towards 24 BB. He had not stated that any blows were inflicted in his presence. He had simply stated that Bhagdewatram and Ganpat were brought by him and when they reached the accused-persons-were beating his father. He had not stated who inflicted what injury with what weapon on his father. He simply slated that the injuries of his father and Amarjit Singh were bleeding. In the FIR, Raj Singh stated that soon after from point 8' situated in killa No. 12 and at a distance about three killas. from point No. 8' situated in killa No. 12 and at a distance about three killas, from point No. 'A' situated in killa No. 7, where the occurrence took place. Just out side the Square No. 129 towards west ; the house of Bagdawatram (PW 10) is situated. PW 10 Bagdawatram has deposed that Amarjit Singh and Raja Singh were cutting Taramira crop in killa No. 10 and at about 4 p.m. Harnam Singh and Teja Singh brought a cart to lift the harvested crop of Taramira and the accused-persons came 20 minutes thereafter in a cart. Harnam Singh was in killa No. 7. Dalel Singh and others took their carts. in killa No. 7. He has deposed at about the exchange of words, which took place between Harnam Singh and Dalel Singh. Harnam Singh was in killa No. 7. Dalel Singh and others took their carts. in killa No. 7. He has deposed at about the exchange of words, which took place between Harnam Singh and Dalel Singh. His further statement is that Rajsingh came running towards him & told him that his father is being beaten, then he along with Ganpat went to the place of occurrence. When they reached in killa No. 12, they saw that Dalel Singh, Kapoor Singh and Sukha Singe were inflicting blows on Harnam Singh. Kapoor Singh was armed with a sela, Dalel Singh with gendhali and Sukha Singh with jayee within his sight they inflicted 2-4 blows. The testimony of this witness is assailed on the ground that he had not stated that he had seen any injuries on the person of Amarjit Sinngh or on Kapoor Singh. In the cross-examination, he stated that he had observed that Sukha Singh and Dalel Singh inflicting 1-2 blows on the head of Harnam Singh. He had also stated he did not see the sickle nor any arm in the hands of the complainant party. Mr. Munshi pointed out that. Bagdawatram had been the witness of Harnam Singh as his name appears in the FIR (Ex. P 24) Besides that, looking to his testimony as well, he does not appear to be a truthful witness. The deceased had in all ten injuries. It would not have taken any time in inflicting ten injuries, so it was not possible for the witness PW 10 Bagdawatram to have observed any of the accused-persons causing any blow on Harnam Singh.It may be mentioned that even with regard to the actual beating, the evidence of Raj Singh, Teja singh and Bagdawatram is ignored still, in our opinion, their presence cannot be doubted. Admittedly, Raj Singh and Raja Singh were present at the field and Bagdawatram also appears to have come to the field, on being informed by Raj Singh. It may be that he may not have seen the accused-persons inflicting the blows. But it is proved that he had seen the accused-persons. Kapoor Singh armed with sela, Dalel Singh with gandhali and Sukh Singh with Jayee. The accused Sukha Singh has already been acquitted, so, his case does not require any scrutiny. It may be that he may not have seen the accused-persons inflicting the blows. But it is proved that he had seen the accused-persons. Kapoor Singh armed with sela, Dalel Singh with gandhali and Sukh Singh with Jayee. The accused Sukha Singh has already been acquitted, so, his case does not require any scrutiny. Who these two persons were so armed and it is these two persons, who inflicted the blows on Harnam Singh with their arms after Harnam Singh was surrounded by them. 18. PW 11 Amarjitsingh in a stamped witness. He had received an injury on his right fore-arm caused by Dalelsingh, which resulted into fracture of lower radius. Amarjitsingh has categorically stated that Harnamsingh stated to collect the Taramira crop in Killa No. 7 and Rajsingh, Tejasingh and himself were putting Taramira in the cart. The accused-persons then came armed. Kapoorsingh thrusted his barchha in the abdomen of Harnansingh. when Kapoorsingh was wielding another barchha, he gave 1-2 blows with his sickle on Kapoorsingh. It appears that he was given blow on his right hand by Dalelsingh at that time. From the statement of Amarjitsingh, it is clear that it was Kapoorsingh, who inflicted blows with barchha on Harnamsingh. Besides the ocular evidence, of Amarjit Singh, the dying declarations are there in a present case. The first dying declaration recorded by SHO is Ex. P25. In that dying declaration the deceased has categorically stated that Kapoorsingh inflicted three barchha blows in his abdomen and Dalelsingh inflicted gandhali blows on his head. He has also stated that Dalelsingh also caused injury on the right hand of Amarjitsingh. In another dying declaration Ex. P/15, the version of the deceased is that Kapoorsingh inflicted two barchha blows in the abdomen and Dalelsingh inflicted gandhali blows on his hand. Mr. Munshi stated that in the first dying declaration, three blows have been assigned by the deceased to the accused Kapoorsingh in the abdomen, whereas in the later declaration recorded at 10 p.m. only two blows have been assigned and the injury assigned to Kapoor Singh on his left hand, is not stated by the deceased in Ex. P/26. In this connection, suffice it to say that these are minor discrepancies. The substance of the matter is that barchha blows were inflicted by Kapoorsingh on his abdomen and Dalelsingh inflicted gandhali blows on his head. P/26. In this connection, suffice it to say that these are minor discrepancies. The substance of the matter is that barchha blows were inflicted by Kapoorsingh on his abdomen and Dalelsingh inflicted gandhali blows on his head. These injuries are amply corroborated by the medical evidence. Dr. R.L. Goyal (P.W. 6) has stated that the injuries No. 1 to 5 could be caused by any of the weapons gandhali and barchha Article 4 and Article 5. 19. Mr. Munshi submitted that Kapoorsingh sustained the injuries; one is stab wound and the other is incised wound described as under: (1) Stab wound transverse in direction 21/4" x 1/4" x (?) on the front of right side of chest just below the nipple area; (2) Incised wound vertical in direction 11/4 "x 1/4" x bone deep on the lateral aspect of right eye on the temporal area. The injuries on the person of Kapoorsingh have not been explained by the deceased as well as the prosecution witnesses except Amarjit Singh & Amarjit. Singh's explanation is also belated and an after thought. Amarjitsingh did not come out with an explanation in the police statement Ex.D/7. When his police statement Ex.D7 was read over the witness came out with a wrong answer that he had stated to the police as to how the deceased received the injuries. Belated statement of Amarjitsingh should not be believed and so, it should be taken that the occurrence has not taken place as alleged by the prosecution and it should be found that the occurrence took place in the manner stated by Kapoorsingh. According to Kapoorsingh, it was his crop in the eight killas and it is they, who cut the crop from Killas No. 5 and 7 upto 2 p.m. and thereafter, they went to the village and returned back at about 4 p.m. and when they went in killa No. 7, they saw that Rajasingh, Amarjitsingh, Harnamsingh and Tejasingh were cutting Taramira crop in Killa No. 12. When they gave Lalkara from Killa No. 7 all of them came armed; Tejasingh with lathi, and the other three with sickles. They were surrounded by Harnamsingh and others in Killa No. 7. Harnamsingh inflicted a sela blow on his abdomen then he lifted a jayee from his cart, which had iron pointed forks. He defended himself with jayee. When they gave Lalkara from Killa No. 7 all of them came armed; Tejasingh with lathi, and the other three with sickles. They were surrounded by Harnamsingh and others in Killa No. 7. Harnamsingh inflicted a sela blow on his abdomen then he lifted a jayee from his cart, which had iron pointed forks. He defended himself with jayee. Harnamsingh inflicted blow on his temporal region with sela, while he was defending. Amarjitsingh and Harnamsingh sustained injuries. It may be mentioned that if the occurrence would have taken place as stated by Kapoorsingh, Kapoorsingh would not have sustained simply two injuries. If three persons armed with selas and one with lathi would have availed Kapoorsingh, Kapoorsingh would have sustained much more injuries. In our opinion, it cannot be found that the complainant party attacked Kapoorsingh. The number and nature of the injuries on the person of Harnamsingh and the injury on the person of Amarjitsingh, if examined, it would be clear that the occurrence had taken place in the manner as alleged by the prosecution and it was the accused party namely, Kapoorsingh and Dalelsingh, who were the aggressors. Simply because Amarjitsingh did not explain the injuries on the person of Kapoorsingh, it cannot be taken that the explanation, which he offered at the trial is rendered unreliable. He has come out with an explanation that it was he who inflicted the blows with sickle when Kapoorsingh was thrusting selas on the abdomen of Harnamsingh. With sickle incised wound and stab wounds were caused. It has not been put to Dr. Goyal that the injuries on the person of Kapoorsingh could not be caused with a sickle. The explanation given by the witness Amarjitsingh can be plausible and hence, is acceptable. No doubt, the other witness even the deceased has not come out with any explanation but on that account, the explanation given by Amarjitsingh is not in any way rendered incredible. It may be mentioned that the occurrence has to be viewed as a whole. The explanation given by the witness Amarjitsingh can be plausible and hence, is acceptable. No doubt, the other witness even the deceased has not come out with any explanation but on that account, the explanation given by Amarjitsingh is not in any way rendered incredible. It may be mentioned that the occurrence has to be viewed as a whole. When conspectus of the case is considered, we have-no hesitation, to hold that it was the accused-party namely Kapoorsingh and Dalelsingh, who were the aggressors in present case and it is Kapoorsingh and Dalelsingh, who were responsible for causing injuries with sela and gandhali on the person of Harnamsingh and the accused Dalelsing is responsible for causing injury to Amarjitsingh and Kapoorsingh received injuries at the hands of Amarjitsingh when Kapoorsingh was inflicting sela blows. 20. Mr. R.N. Munshi, referred to some case-law, it is not necessary to make reference to those cases as the findings which are arrived at in the present cases have been arrived at on the appreciation of the evidence in this case. It may be taken on the basis of the evidence in that case and findings are always based on appreciation of evidence in that case. 21. Mr. R.N. Munshi further submitted that the learned Sessions Judge has seriously erred that Kapoor Singh and Dalel Singh had developed a common intention immediately before the delivery of the blows on Harnam Singh. This view of the learned Sessions Judge is not sustainable. Mr. Munshi submitted that if Kapoor Singh and Dalel Singh had a common intention to cause the death then Dalelsingh to whom the three injuries have been assigned would have caused the injuries in a deadly manner and not simple injuries. All the three injuries on the head are simple injuries, which indicate that Dalel Singh did not share the intention to cause the death. The manner in which he acted negatives such an intention. There appears to be some force in the contention of Mr. Munshi. So far as Kapoor Singh is concerned he is responsible for the punctured wounds, which have proved fatal. There is no doubt that the manner in which he acted, shows that he intended to cause the death of Harnam Singh by causing punctured wounds. But so far as Dalel Singh is concerned the manner in which he acted it shows that he did not share that intention. There is no doubt that the manner in which he acted, shows that he intended to cause the death of Harnam Singh by causing punctured wounds. But so far as Dalel Singh is concerned the manner in which he acted it shows that he did not share that intention. In our opinion, he can only be responsible for his individual acts and would not be justified to hold him guilty constructively. Had he entertained any such intention to cause the death he would have certainly inflicted the blows with force on the head. Inference of common intention should be drawn only when it is clearly made out. When there is slightest doubt about the common intention then such an inference should not be drawn and assailants should be held responsible for their individual acts and should not be held responsible constructively. Thus by applicability of Section 34, IPC the accused Dalel Singh cannot be held guilty of the offence Under Section 302, IPC. He can be held guilty of the offence Under Section 325, IPC for the injuries caused to Amarjit Singh and for the offence Under Section 324, IPC for the injuries caused to Harnamsingh. But so far as the accused Kapoor Singh is concerned, it is he who is responsible for causing fatal injury to the deceased, so he is guilty of the offence under Section 302, IPC. 22. Accordingly this appeal is partly allowed. The appellant Kapoor Singh is convicted of the offence Under Section 302 IPC and is sentenced to imprisonment for life. He shall immediately surrender and the learned Sessions Judge, Sri Ganganagar is further directed to effect his arrest to serve out the sentence. The conviction of the appellant Dalel Singh of the offence Under Section 302/34, IPC is set aside and he is acquitted of the said offence. He is convicted of the offence under Section 325, IPC and 323, IPC. The accused Dalel Singh has remained in custody from 14-4-1974 to 2-8-1975. Since 2nd August, 1975, he is on bail. More than ten years have lapsed in such circumstances, it would not be proper to award him more substantive punishment and it would be reasonable to sentence him to the period of his custody. Accordingly, he is sentenced to the period of his custody Under Section 325, IPC and no separate sentence is awarded Under Section 323. IPC. More than ten years have lapsed in such circumstances, it would not be proper to award him more substantive punishment and it would be reasonable to sentence him to the period of his custody. Accordingly, he is sentenced to the period of his custody Under Section 325, IPC and no separate sentence is awarded Under Section 323. IPC. He is already on bail, so, he head not surrender to his bail bonds. His bail bonds are nearby discharged.Appeal partly allowed. *******