JUDGMENT 1. - These two appeals have been preferred against the same judgment of the Sessions Judge, Jaipur, dated 22nd February 1978 whereby she convicted and sentenced each accused-appellant as under: Conviction Under Section Punishment 304(2) r/w 149, Indian Penal Code ... 5 years' rigor bus imprisonment; 323 / 149z, Indian Penal Code ... 3 months' rigorous imprisonment; 325 / 149, Indian Penal Code ... 1 year's rigorous imprisonment; 447, IPC ... 1 month's rigorous imprisonment; All the sentences were ordered to run concurrently. 2. The State filed Sessions Case No. 112/74 against Ramkaran and others under Sections 302, 323, 325/149 & 447, IPC. The learned Sessions Judge acquitted the accused persons of offence under Section 302, [PC. She also acquitted accused Gopal and Ladu of all the charges; and convicted the rest of the accused persons and sentenced each of them as mentioned above. 3. The accused persons who have been convicted and sentenced by the learned Sessions Judge, have preferred D.B. Cr. Appeal 160/78; and the State of Rajasthan has filed D.B. Cr. Appeal No. 347/78 against the same judgment of the learned Sessions judge. 4. The brief facts of the case are that on 29th September, 1972, one Madho son of Ramkaran, lodged a report as P.S. Phagi, where in itwas alleged that he was resident of village Kishanpura, where they had their field, 'Karkodiwallah.' They had raised a 'doli' (boundry-wall) about a month back. On the day of incident, while he himself, his brother and his nephew were harvesting Bajra crop, they heard a noise from the side of 'Karkodiwallah' field. Thereupon, they ran towards that side. Reaching there, they saw that the boundary-wall at their field, had been demolished; and his (Madho's) elder-brother Shrilal, his father Ramkaran; and his mother Mst. Dhani were lying in the field and were being beaten by Ladhu, Ramkaran, Nathu, Hanu-man son of Ladu, Rameshwar, Bheru, Ramu, Suja, Chhotu son of Jaideo, Gopal Bakhtawar Shrawan, Ram Narain, Johri, Jagdish, Narain, Mst. Raja wife of Ladu, Mst. Mohari wife of Nathu and Mst. Panni wife of Ramkaran, with lathis and spears. When the complainant reached there, Johari and Hanuman gave him a lathi blow each. Ramlal and Hanuman were also beaten by those persons. Thereafter, they called Ramkaran Dhaniwala and his brother, who removed Shrilal his brother from there, where he was lying unconscious. Mohari wife of Nathu and Mst. Panni wife of Ramkaran, with lathis and spears. When the complainant reached there, Johari and Hanuman gave him a lathi blow each. Ramlal and Hanuman were also beaten by those persons. Thereafter, they called Ramkaran Dhaniwala and his brother, who removed Shrilal his brother from there, where he was lying unconscious. The injured and the witnesses accompanied the complainant to police Station. The police on this report, registered a case under Sections 147, 148, 149, 447 and 307 IPC. The injured persons were then sent to the SMS Hospital, Jaipur for their medical treatment as the Medical Officer, Phagi, was not available on that date. Shrilal, later on, succumbed to his injuries at about 4 a.m. on 13th September, 1972. So, the case was then altered to that under Section 302, IPC. 5. It is pertinent to mention here that on the same date, a report was lodged by one Nathu son of Sheonath of village Kishanpura, alleging that in the noon at about 2 p.m. he was putting 'Kadvi' at this Nohra. Along with him were Rameshwar, Ramnarain, Bheru, Suraj Narayan, Sharwan and Ladhu's wife Mst. Radha, who had come there to help him in unloading the cart of Kadvi. At that time, Ramkaran, Shrilal Madho, Ramlal, Ladhu, Hanuman, Banna and Babuial belonging to the same village, suddenly entered the Nohra and attacked them. Shrilal gave a lathi blow on the head of Ramcshwar, visile Ramkaran injured Mst. Radha on her head. Ramnarain and Bheru were injured by Madho and Suraj Narain; and Sharwan received injuries at the hands of Ladhu, Hanuman and Banna. Ramkaran inflicted injuries to him (Nathu). When the injured persons fell down on the ground, all these persons gave further beating to them. On this report, the police registered another case under Sections 147, 148/307/149, IPC. Later on the case under Section 307, IPC, was converted to that under Section 325, IPC. 6. After usual investigation in both the reports, the police submitted a charge-sheet against the persons in both the cases, and both the cases, and both the parties were then committed to the court of Sessions for their trial. It could be sufficient to mention here that in the case filed by the accused appellants against the complainant and his party, the learned Sessions Judge acquitted all the accused persons. 7. It could be sufficient to mention here that in the case filed by the accused appellants against the complainant and his party, the learned Sessions Judge acquitted all the accused persons. 7. In this case, the learned Sessions Judge framed charges against all the accused persons under Sections 302, 323, 325/149 & 447 IPC. The accused persons pleaded not guilty and claimed trial. 8. The prosecution to prove its case against the accused persons, examined 17 witnesses in all, while the accused persons examined 13 witnesses in their defence. After concluding the trial, the learned Sessions Judge found that no case was made out against Gopal and Ladu. So, she acquitted both of them of all the charges. She however found guilty the other accused appellants and sentenced each of them as mentioned above. 9. D.B. Cr. Appeal No. 160/78 has been preferred by 13 accused persons, out of whom Nathu appellant has expired. 10. It is not disputed that a quarrel had taken place in between both the parties. It is also not disputed that Shrilal died on account of injuries received by him. 11. The statements of the prosecution witnesses, were perused. PW I Ramkaran, PW 2 Hanuman, PW 3 Ramlal & PW 4 Mst. Dhanni have stated that Shrilal was beaten by the accused persons, who had received a number of injuries at their hands, and was admitted to the SMS Hospital, Jaipur, who later on, succumbed to his injuries. On 30th September, 1972 Dr. C.N. Joshi conducted post-mortem examination on the dead body of Shri Lal, who found 7 injuries on the person of the deceased. Injury No. 1 was a lacerated wound on the left parietal region. There were multiple fractures of both parietal and temporal bones. In the opinion of the said doctor, the death was caused as a result of the head-injuries leading to intra-carnial haemorrhage. The doctor further opined that injuries Nos. 1, 7 & 8 which were on left parietal region, right tempo-parietal region and on left temproparietal region, could be caused by lathi. Hence, it is clear that Shri Lal died on account of the injuries received by him. Therefore, the death of Shri Lal was homicidal in nature. 12. Lengthy arguments were advanced on behalf of both the parties. 13. Hence, it is clear that Shri Lal died on account of the injuries received by him. Therefore, the death of Shri Lal was homicidal in nature. 12. Lengthy arguments were advanced on behalf of both the parties. 13. The learned Public Prosecutor argued that from the evidence on record, it is clear that the accused persons were the aggressors, who came armed with weapons and demolished the 'Doli' of the field of the complainant, known as 'Karkodiwallah'. That Doli was on the sourthern side of the field. When the accused persons were demolishing the said Doli, they were restrained, but, they started beating Shrilal and others. So, according to the learned Public Prosecutor the intention of the accused persons was clear, who wanted to murder the persons who were obstructing them from demolishing the 'Doli'. It was also pointed out by him that others persons of the complainant party also received injuries at the hands of the accused. So, according to the learned Public Prosecutor, the learned Sessions Judge has committed error in acquitting the accused persons of charge Under Section 302, IPC. 14. In reply to this argument; Mr. Ganpat Ram, the learned Counsel for the accused-appellants, argued that actually, the complainant party was the aggressor. On the southern side of the field of 'Karkodiwallah' there was a path, and beyond that path, towards the southern side, there was a 'Bada' of Ladu, and Bada of Bakhtawar, etc. The accused persons were helping Nathu in unloading his cart of Kadvi. Kadvi was being put in their Bada. 'Shrilal and others then entered the Nohra of the accused persons and closed the door of the Bada, and when they were restrained by the accused persons, Shrilal and his partymen started beating them with lathis. Shrilal inflicted lathi blow on Rameshwar's head. Ramkaran injured Mst. Radha on her head. Similarly, Ram Narain and Bheru were injured by Madho and Suraj Narain and Sharvan received injuries at the hands of Ladu, Hanuman and Banna. Ram Karan also inflicted injuries to Nathu. All the injured persons were also medically examined. So according to the learned Counsel for the appellants, the dispute took place not at field, 'Karkodiwallah', as alleged by the prosecution, but at the 'Bada' of the accused persons. This fact, according to the learned counsel, is corroborated by the site-plans, Ex. D 9 & Ex. All the injured persons were also medically examined. So according to the learned Counsel for the appellants, the dispute took place not at field, 'Karkodiwallah', as alleged by the prosecution, but at the 'Bada' of the accused persons. This fact, according to the learned counsel, is corroborated by the site-plans, Ex. D 9 & Ex. D 10, which were prepared by the SHO. Mahendra Pratap Singh PW 14 was the SHO on 29th September, 1972. So, showing the site-plans, Ex. D 9 & Ex. D 10, it was argued that from the investigation of the SHO, it appears that the dispute took place at the Bada of the accused persons, from where he (SHO) took blood-stained soil. We have read over the statement of Mahendrapratap Singh PW 14, the SHO. He was the Investigating Officer in this case. As we have mentioned above, FIRs were lodged on behalf of both the parties. FIR No. 80/72 was lodged on behalf of the accused persons, while FIR No. 81/72 was lodged by Madho, on behalf of the complainant side. When cases were registered on the reports of both the parties, SHO Mahendra Pratap Singh started investigation, and during investigation, he prepared the two site-plans. Site-plans, Ex. P 6 was prepared in FIR No. 81/72 which was on the complain by the complainant-party; while, site-plan, Ex. D 9 was prepared by him in FIR 80/72, which was from the accused persons. In Ex. P 6 (site-plan) and in site-plan note Ex. P 6(1), he has mentioned that about 16 feet away on the western side from the place marked H, he found blood on the earth, and he seized and sealed blood-stained earth from there. He has also mentioned in that note that at place K, in the field, 'Karkodiwallah', he found one axe lying on the ground which was seized and sealed by him. Thus, looking to the maps, Ex. P 6 and the note, Ex. P 6/1, it appears that the dispute took place in the field 'Karkodiwallah' as alleged by the complainant party. We have also looked into the map Ex. D 10. They were also prepared by the SHO, Mahendra Pratap Singh PW14, who has proved both these documents. In the map. Ex. D 9, the Bada of Ladu has been shown on the southern side of the path. We have also looked into the map Ex. D 10. They were also prepared by the SHO, Mahendra Pratap Singh PW14, who has proved both these documents. In the map. Ex. D 9, the Bada of Ladu has been shown on the southern side of the path. It means that in between the field, 'Karkodiwallah' and the Bada of Ladu, there is a path. In the note, Ex. D 10, it has been mentioned that at places marked C & D, two bullock-carts were lying. The portions marked C & D are on the path, C is just in front of the Bada of Ladu, while D 10 in front of the Bada of Bakhtawar. The SHO has also noted there in that Kadvi was lying there and on that Kadvi, there were one pair of shoes and one Jelly of wood. 15. Ex. D 11 is another document, by which blood-stained soil was taken in possession from the Bada of Ladu. 16. Thus, from the above documents, it appears that the incident took place at the Bada of Ladu where blood was found by the SHO during the investigation. What we feel is that the police investigated the matter on the complaints of both the parties. On one complaint, the police found that the dispute took place in the field, 'Karkodiwallah', and on the other complaint of the accused, they found that the dispute took place at the Bada of Ladu. The police submitted challan in both the reports. The learned Sessions Judge while trying the case filed on the accused persons, found that the case was not made out as put forth by the police, and so she acquitted all the persons, which means that the case of the accused persons was accepted by the learned Sessions Judge. That case was that the dispute had taken place at the Bada. The State Government has not preferred any appeal against the acquittal in that case. So, the judgment of the learned Sessions Judge in that case as alleged on behalf of the accused persons, becomes final. 17. Mahendra Pratap Singh PW 14 who was the SHO and Investigating Officer in this case, has filed challan against both the parties. The State Government has not preferred any appeal against the acquittal in that case. So, the judgment of the learned Sessions Judge in that case as alleged on behalf of the accused persons, becomes final. 17. Mahendra Pratap Singh PW 14 who was the SHO and Investigating Officer in this case, has filed challan against both the parties. In his cross-examination, he was specifically asked about the place where the dispute h''d taken place, where upon, he stated that during investigation he found that the quarrel had taken place at two places. He further staled that he could not say as to whether the dispute bad taken place at the field, 'Karkodiwallah' first, or at the Bada of Ladu, ecc. From the site-plans, Ex. P 6 and Ex. D 9, it is clear that the dispute had taken place at two places. Blood was found at the field, 'Karkodiwallah' as well as at the Bada of Ladu. So, it was possible that the parties might have fought at both the place. The dispute which according to the accused persons had taken place at the Bada of Ladu and against which one complaint was filed against the complaint party, the learned Sessions Judge did not agree with the contention of the appellants and she agreed with that of the complainant party, i.e., Shrilal and others were not the aggressors and that they did not inflict injuries to the accused persons at their Bada. So, in that case, they were acquitted. As no appeal has been filed, the judgment of the learned Sessions Judge, becomes final and we cannot look into that case at this stage. Suffice it to say that the contention of the accused persons in their case, was not accepted by the learned Sessions Judge. Thus, it is clear that the dispute had taken place at the field, 'Karkodiwallah' where members of both the parties were injured as result of which, Shrilal died. The accused persons also received injuries in that incident and they were also medically examined by the doctor. Their injury reports have also been proved. So it is abundantly clear that a quarrel had taken place in which both the parties inflicted injuries to each other. The accused persons also received injuries in that incident and they were also medically examined by the doctor. Their injury reports have also been proved. So it is abundantly clear that a quarrel had taken place in which both the parties inflicted injuries to each other. In the prosecution evidence, some of the prosecution witnesses have even denied the existence of any path on the southern side of the field, 'Karkodiwallah', which shows that they have tried to hide the real fact, which otherwise has been established. When we look into the statement of the SHO, Mahendrapratap Singh PW 14 and also the site-plans, Ex P 6 & Ex. D 9, it becomes clear that in between the field, 'Karkodiwallah' and the Bada of Lalu, there is a path. It has been established that this path exists on the southern side of the field, 'Karkodiwallah'. This has also been established and admitted by the SHO that on this path, two carts were lying, and that, Kadvi was also there. So, this fact has been established that the accused persons had brought their Kadvi in two carts and they wanted to unload the Kadvi at their Badas. It has also been established that the southern 'doli' of the field, 'Karkodiwallah' had been demolished. So there remains no dispute about this fact that the 'Doli' was demolished and that Kadvi was being unloaded from the carts at the Bada, and at that moment, the dispute took place. Who were the aggressors in that fight or quarrel, is immaterial at this stage. It is established fact that the dispute had taken place at that time, and prior to that dispute, there must have been some altercation or hot exchange between both the parties. So, it cannot be said as to which party started beating first. 18. The learned Counsel for the appellants argued that looking to the injuries sustained by the accused-appellants, it is clear that they were beaten first by the complainant party, and that, the injuries caused to the complainant party indicate that they first inflicted blows to the accused-appellants, and then in their self-defence, the accused persons gave beating to the complainant party, whose injuries were of such nature that had they received those injuries first, then it would not have been possible for them to inflict injuries to the accused-appellants. So, according to the learned counsel, from the medical as well as the injury reports it is clear that the complainant party started beating first, and later on, in their self-defence, the accused persons also inflicted injuries in return, which resulted in the death of Shrilal. Thus, the learned Counsel for the accused appellants tried to emphasise that the complainant party was the aggressor in this case, and the accused-appellants in their self-defence then inflicted injuries to the complainant party. 19. We have considered this argument also. We do not agree that the accused-appellants in the exercise of their right to self-defence inflicted injuries to the complainant party. In our view, this plea has no substance. But, it is clear that from the evidence it cannot be inferred that the accused-appellants had any common object, that they had formed any unlawful assembly. Actually, they had come with their Kadvi in carts, which they were unloading at their Badas. Had they any common object and if that object was to beat the complainant party, then there was no question of bringing Kadvi in carts. Had the accused persons any intention of demolishing the 'Doli' then, they would not have come with the carts full of Kadvi. Even, from the prosecution evidence, it has been disproved that the 'Doli' was demolished by the accused persons, which was demolished by the women who were not challaned. So, it cannot be said, nor can it be inferred from the statements on record that the accused persons had any common object further to demolish the 'Doli' or to give beating to Shrilal or his party men. They had come there with Kadvi, and the dispute took place. So, no case is made out against the accused persons of forming an unlawful assembly. An unlawful assembly could be formed later on, but, from the evidence on record, it also cannot be inferred that subsequently, the accused persons formed an unlawful assembly and that they had any common object. The facts are that so, some quarrel took place, in which both the parties received injuries at each others' hand. 20. We do not agree with the argument of the learned Public Persecutor that a case under Section 302, has been established against the accused-appellants. The facts are that so, some quarrel took place, in which both the parties received injuries at each others' hand. 20. We do not agree with the argument of the learned Public Persecutor that a case under Section 302, has been established against the accused-appellants. The learned Sessions Judge in his judgment, has discussed this aspect and we agree with her that no case is made out under Section 302, Indian Penal Code against the accused persons. We find that the accused persons had no common intention of committing murder of Shrilal, nor bad they had any intention to cause such bodily injury, as was likely to cause death, nor had they any intention of committing any act or causing such injury which was intended to be inflicted & which was sufficient in the ordinary course of nature to cause death, nor was it the case that the accused persons knew that the injury that they were going to inflict, was so imminently dangerous that it must, in all probability, should cause death or such bodily injury as was likely to cause death. 21. The weapons used by the accused persons in this case, were lathi and Jelli. It cannot be said that these weapons are dangerous weapons. Apart from this, looking to the injuries of Shrilal (deceased), it cannot be said that the accused persons had any common intention of committing his murder; or causing such bodily injury as was likely to cause his death. Therefore, a case under Section 302, IPC, is not at all made out against the accused persons in this case. All of a sudden, the quarrel took place, and in that sudden fight/quarrel, injuries were inflicted by both the parties to each other. So, this case is completely covered under Exception-4 to Section 300, IPC. The learned Sessions Judge has held that a case under Section 300-311, Indian Penal Code is made out against the accused-appellants in this case. When a culpable homicide is committed, it will not amount to murder, if the act was done without the knowledge that it was likely to cause death; or without any intention of causing death, or such bodily injury as was likely to cause death. The accused persons in this case bad neither any intention of causing death, nor they had any intention of causing such bodily injury as was likely to cause death. The accused persons in this case bad neither any intention of causing death, nor they had any intention of causing such bodily injury as was likely to cause death. So, J he present case is completely covered by Clause-II of Section 304, IPC. We, therefore, agree with the finding of the learned Sessions Judge that a case under Section 304-311 only is made out against the accused-appellants in this case. Therefore, the State-appeal has no force. 22. The learned Sessions Judge has found the accused appellants guilty with the aid of Section 149, IPC, who have also been found guilty under Section 447, IPC. But as has been discussed above by us, no unlawful assembly was formed by the accused persons in this case. So, they cannot be convicted with the aid of Section 149, IPC. They can be held guilty with the slid of Section 34, IPC. While committing the act in furtherance of their common intention they inflicted injuries to Shrilal and others in the complainant party. Therefore, while maintaining their conviction under Sections 304-311, 447/323 & 325, IPC, we find them guilty with the aid of Section 34, IPC. 23. In the result, the appeal of the State is dismissed. 24. The appeal filed on behalf of the accused persons is also dismissed. They are found guilty of offence under Section 304-311, 323, 325 & 447, IPC, read with Section 34, IPC, and their sentences for these offences are also maintained. The accused persons are on bail. The trial court is directed to issue warrants of arrest against the accused-appellants and send them to jail to undergo the sentence of imprisonment awarded to them by the trial court and confirmed by this Court.Order accordingly. *******