JUDGMENT 1. Parsadi and Nathu alias Raj Pal appellants have preferred this appeal against the judgment and order dated 19-11-1977, passed by O. P. Mehrotra, Sessions Judge, Mathura, whereby he has convicted both the appellants under sections 302/149 and 32/149 and 147 IPC and sentenced each of them to imprisonment for life and for six months' R. I. twice respectively. All the sentences were ordered to run concurrently. 2. Brief facts of the prosecution case are that on 29-5-1974 at about 1.30 P. M. while Lallu (PW 1) and his wife Smt. Rupan (deceased) were looking after their field in which Kakadi and Kharbooja had been sown. The aforesaid two appellants along with one Hari Singh and two other unknown persons entered the field of Lallu and put a net in that field in order to catch rabbits. They also ate some Kakadi and Kharbooja and caused damage to the Kakadi and Kharbooja crops. Then Smt. Rupan asked them not to do so, whereupon they started assaulting her with Lathis. It is alleged that Natho alias Rajpal gave a lathi blow on her head on which she fell down unconscious and when her husband, Lallu came to her rescue, the culprits assaulted him as well. Lallu also plied Dandah in his defence. Besides Lallu, this occurrence is said to have been witnessed by Shobha Ram (PW 5) Girdhari (PW 7) and others. After assault, the culprits ran away across the railway line. Complainant Gordhan Lal (PW 3), who is son-in-law of Lallu injured was present at his cycle shop in Kosi Kalan, came to know that his father-in- law and mother-in-law had been assaulted by Bawariyas in the field, therefore, he rushed to the place of occurrence on a rickshaw and took both of them to Kosi Kalan Hospital, where they were medically examined by Dr. Arvind Kumar (PW 8). On the way Lallu injured told Gordhan Lal complainant how this occurrence had taken place. On the basis of that Gordhan Lal got a report (Ex. Ka-5) prepared by Man Singh and then went to the police station Kosi Kalan and lodged an FIR at 3.30 P. M. on the same day i.e. 29-5-1974. A case was registered against five persons including the two appellants at police station Kosi Kalan under sections 147/323 IPC and both the injured were sent to Primary Health Centre, Kosi Kalan for their medical examinations. A case was registered against five persons including the two appellants at police station Kosi Kalan under sections 147/323 IPC and both the injured were sent to Primary Health Centre, Kosi Kalan for their medical examinations. As the condition of Smt. Rupan was serious, she was shifted to Mathura Hospital, where she died in the night at about 9 P. M. Sri A. P. Sharma, S. I., Kotwali, Mathura (now dead) prepared inquest report and sent the dead body for post mortem examination through constable Ram Nath Singh. On the receipt of the report of death of Smt. Rupan, the case was converted from section 323/149 IPC to section 302/149 IPC. 3. Smt. Rupan and her husband Lallu were first examined by Dr. Arvind Kumar on the same day at 2 P. M. and 2.45 P. M. respectively. The doctor found the following injuries on their bodies. SMT. Rupan 1. Lacerated wound of 5" x 1/2" x scalp deep on the front of the left side of head and lies 3-1/2" above the left eye brow. Patient was unconscious with poor condition. The above injury was kept under observation and advised X-ray. Duration was fresh (vide injury report Ex. Ka-8). Lallu 1. Lacerated wound of 1-1/2" x 1/2" x skin deep on the back of head and lies 3-1/2" above the left ear ; 2. Abrasion of 1" x 1/2" with swelling of 1-1/2" x 1" around the wound and lies on the upper part of back and lies 3" below the left shoulder joint; 3. A contusion of 5" x 1" on the right side of back with swelling of 3-1/2" x 1-1/2" around it and lies 2" right side of the vertebral columns and lies 4" below the right shoulder joint. The injuries were caused by blunt object and no. 2 was caused by friction. The injuries were simple with fresh duration (vide injury report Ex. Ka 9). 4. Dr. D. D. Chaturvedi (PW 6) conducted the post mortem examination on the dead body of Smt. Rupan on 30-5-1974 at 5.30 P. M. He found the following two ante-mortem injuries on her person : 1. Stitched wound 4" in length on left side head 3-1/2" above left ear ; Abrasion 1/2" x 1/2" on left side buttock. On internal examination the doctor found that left frontal, parietal and temporal bones under injury no. 1 were fractured. Stitched wound 4" in length on left side head 3-1/2" above left ear ; Abrasion 1/2" x 1/2" on left side buttock. On internal examination the doctor found that left frontal, parietal and temporal bones under injury no. 1 were fractured. The scalp, membrance and brain were found congested. The stomach contained 3 Ozs. of semi digested food material. The small intestines also contained semi digested food. Faecal matter was found in the large intestines. In the opinion of the doctor the death was caused due to shock and haemorrhage as a result of the head injury and injury no. 1 was sufficient in the ordinary course of nature to cause death. The matter was investigated by Akbar Singh (PW 9). He interrogated Gordhan Lal complainant at the police station and went to the spot where he interrogated Shobha Ram, Girdhari, Udai Ram and other witnesses. As Lallu injured had gone to Mathura along with his injured wife, hence he could not be interrogated on that day. He was interrogated subsequently on 31-5-1974. Parsadi appellant was arrested on 1-6-1974. After completing the investigation charge sheet, Ex. Ka-11 was submitted against these two appellants on 19-8-1974. The remaining three accused were absconding, hence they could not be tried along with the appellants. 5. The prosecution examined nine witnesses in support of its case. Out of whom Lallu (PW 1), Shobha Ram (PW 5) and Girdhari (PW 7) are the eye witnesses of the occurrence. Hira Singh (PW 2) prepared the chik report Gordhan Lal (PW 3) is the complainant, who lodged the FIR and Udai Ram (PW 4) is a witness of memo (Ex. Ka-6) regarding blood stained earth. Rest of the witnesses are the aforesaid two doctors and the I. O. The prosecution has also tendered in evidence the reports of the Chemical Examiner and the Serologist; Exs. Ka-19 and Ka-20 respectively, as well as affidavits of police constables. 6. Both the appellants pleaded not guilty. They have not disputed the occurrence in which Smt. Rupan and her husband Lallu were injured. On the other hand they have set up a defence case that the accused persons had gone to catch rabbits along the railway line when Lallu injured started abusing them, therefore, they also abused, whereupon, Lallu started assaulting them, when they plied Dandas in their self defence. On the other hand they have set up a defence case that the accused persons had gone to catch rabbits along the railway line when Lallu injured started abusing them, therefore, they also abused, whereupon, Lallu started assaulting them, when they plied Dandas in their self defence. During the course of this assault, Smt. Rupan came in between them and she also got injuries. Parsadi appellant also lodged an FIR Ex. Ka-1 at 1.10 P. M. at the same police station. The injuries received by both the appellants are also noted down in the G. D. Ex. Kha 2. They were sent for medical examination. Parsadi was examined by Dr. Arvind Kumar (PW 8) on the next day at 10.45 A. M.; but the other appellant did not get himself medically examined. BOTH the appellants denied that there was any Kakadi or Kharbooja crop in the field of Lallu. They have produced Hukum Pal Lekhpal (DW 1) in their defence. After considering the entire evidence on the record, the learned Sessions Judge has believed the prosecution case, discarded the defence version and convicted and sentenced the appellants as aforesaid. 7. Sri Keshav Sahai, learned counsel for the appellants vehemently urged before us that the prosecution has failed to prove its case beyond reasonable doubt against the appellants. Injuries of the appellants received in this incident have not been explained. Thus, they are entitled to get the benefit of right of self defence. In the alternative he further urged that even if his aforesaid arguments are not accepted the convictions of both the appellants under section 302/149 IPC and sentence of life imprisonment to each of them are not justified. According to him, utmost the appellants will be liable for conviction only under section 323/149 IPC. 8. On the other hand Sri Jitendra Kumar, learned Additional Government Advocate vehemently urged that the appellants were aggressors and they have caused the injuries to Smt. Rupan and her husband Lallu and due to that Smt. Rupan died on the same day. Injuries of the appellant have been explained by the PWs in their statements in the trial court. The case of the prosecution will not fail because injuries of the appellants are not explained in the FIR or in the statement under section 161 CrPC. Injuries of the appellant have been explained by the PWs in their statements in the trial court. The case of the prosecution will not fail because injuries of the appellants are not explained in the FIR or in the statement under section 161 CrPC. The MR was not lodged by any of the eye witnesses, therefore, it cannot be used to corroborate or to contradict any of them. Pointing out the injuries of the appellants learned Additional Government Advocate also urged that non-explanation of such minor injuries will not affect the merit of the prosecution case and in support of his contention he relied on a decision of the Supreme Court in the case of Jagdish v. State of Rajasthan, AIR 1979 SC 1010 . The position of law regarding cases of right of self defence is very well settled by a nine Judges' Full Bench decision of this court in the case of Rishikesh Singh v. State of U. P., AIR 1970 Alld. 51. Majority decision of this Full Bench has held that the majority decision in Prabhu v. Emperor, AIR 1941 Alld. 402 F. B. is still good law. The accused person, who pleads an exception is entitled to be acquitted if upon consideration of the evidence as a whole (including the evidence given in support of the plea of general exception) a reasonable doubt is created in the mind of the court about the guilt of the accused. The concepts of 'proved' 'disproved' and 'not proved' contemplated under section 3 of the Evidence Act compares a great deal of judicial wisdom with history and processes of evolution and development behind them which have not yet ended The term 'Burden of proof is not defined in the Evidence Act and cannot be fully understood without an exposition of its place and meaning in our procedural law as a whole. Whenever the law places a burden of proof upon a party a presumption operates against it. Hence, burden of proof and presumptions have to be considered together. Whenever the law places a burden of proof upon a party a presumption operates against it. Hence, burden of proof and presumptions have to be considered together. When there is ample evidence from both sides, the fate of the case is no longer determined by presumptions or burdens of proof; but by a careful selection of the correct version, based, no doubt, on preponderance of probabilities which has to be so compulsive or overwhelming in the case of a choice in favour of conviction as to remove all reasonable doubt. Burden of proof and presumption may become decisive again in cases where evidence is equally balanced. Thus their function is deceisive only in cases where there is paucity of evidence on either side or the evidence given by two sides is equi-balanced. Neither a burden of proof nor a rebuttable presumption can be used excluding any evidence. That is not their function at all but of other provisions of law. 9. Regarding the plea of self defence, it is well settled that aggressor has no right of private defence. Question arises as to who is aggressor ? Aggressor is one who initiates the trouble and there is no right of self evidence to an aggressor. Right of private defence arises to those only, who in the face of imminent peril act in good faith and in no case this right can be conceded to a person, who stage-manages a situation wherein the right can be used as a shield to justify an act of aggressor. If a person goes armed with deadly weapons like gun or Lathi to kill another, the intended victim is entitled to act in self defence and if he so acts, there is no right in the former to kill him in order to prevent him from acting in self defence. In other words, there is no private defence against private defence as held by the Supreme Court in the case of State of U. P. v. Ram Swarup, 1974 CrLJ 1035 SC. It is also well settled that even if an accused does not plead self defence, it is open to the court to consider such a plea if the same arises from the materials on the record. 10. It is also well settled that even if an accused does not plead self defence, it is open to the court to consider such a plea if the same arises from the materials on the record. 10. In the light of the aforesaid observations of law when we proceed to examine the merit of the prosecution case, the first question which arises for our consideration is as to who is aggressor in this case ? The date, time and more or less the place of occurrence are not much in dispute. All the aforesaid three eye witnesses, namely, Lallu (PW 1) Shobharam (PW 4) and Girdhari (PW 7) have fully supported the prosecution case. They have definitely stated that the appellants had set their net for catching rabbits in the field of Lallu and they had also eaten away some of his Kakadi and Kharbooja; Smt. Rupan asked them not to do so; she also abused them and rushed to throw their net, whereupon the appellants assaulted her and when Lallu arrived to her rescue, he was also assaulted. This clearly establishes that the appellants were aggressors as well as members of an unlawful assembly. Lallu (PW 1) is an injured witness and his presence on the spot cannot be doubted. He has clearly stated, "Muljiman Natho wa Parsadi Hajir Adalat wa do bahari admiyon ne hamare Kakadi-Kharbooja wale khet me Khargosh pakadane ke liye jal lagaya. Jab ye log jal lagane hamare khet me ghuse to hamare Kakadi wa Kharboojon ka nuksan hua. Kuchh inhone todkar khaye bhi. Meri patni Rupan ne inko mane kiya yeh log gali dene lage to men aurat ne inka jal bahar phenk diya, is par Natho Muljim ne meri aurat ke Latth mara. Mai bhagkar bachane gaya mere pas ek dandah tha tab ye log mujhe bhi marne lage, mujhe Hari Singh wa Parsadi ne lathiyon se mara; maine bhi bachaw me dandah chalaya jisase Parsadi ke chot lagi. Is ghatna ko Sobha Ram wa Girdhari adi ne dekha. Marne ke bad muljiman line par bhag gaye." 11. Girdhari (PW 7), who was present at his Chakki at a distance of 40-50 paces from the place of occurrence, saw the occurrence and ran towards Lallu's field. He has supported the whole prosecution case. Is ghatna ko Sobha Ram wa Girdhari adi ne dekha. Marne ke bad muljiman line par bhag gaye." 11. Girdhari (PW 7), who was present at his Chakki at a distance of 40-50 paces from the place of occurrence, saw the occurrence and ran towards Lallu's field. He has supported the whole prosecution case. He has stated that the appellants along with their associates were eating Kakadi and Kharbooja in the field of Lallu; Smt. Rupan wife of Lallu objected to it and proceeded towards them abusing, whereupon, Natho appellant inflicted a Lathi blow, which stuck on her head; when Lallu proceeded to her rescue he too was assaulted by the appellants and their associates; Lallu also defended himself from his Dandah. Name of this witness is mentioned in the FIR. He is an independent witness. Nothing substantial has been brought out in his cross examination, which may create any doubt on his veracity and independence. 12. Sobha Ram (PW 5) is a resident of the same village and was going to the tube well of Lallu for doing repairs; when he reached near the road, he saw that fighting was going on between the parties in the field of Lallu. He has not stated how the fight started. Because he had reached thereafter Smt. Rupan had fallen down, therefore, this witness is of no help to show as to how the occurrence started. But his statement also clearly shows that the occurrence took place in the field of Lallu in which crop of Kakadi and Kharbooja existed His statement also substantially corroborates the prosecution case. The statements of the aforesaid eye witnesses find full corroboration from the medical evidence. Smt. Rupan had received a severe Lathi blow on her head; due to which she fell down and died on the same night. Her frontal, parietal and temporal bones under the aforesaid injury were found fractured in the P.H.C. by Dr. D.D. Chaturvedi (PW 6). Lallu also received three injuries including a lacerated wound on his head. On the other hand Parsadi appellant had received only one minor lacerated wound and his brother Natho had simply received a minor abrasion which he did not even care to get medically examined. Thus the nature of injuries also goes to support the prosecution case that the appellants were the aggressors. 13. On the other hand Parsadi appellant had received only one minor lacerated wound and his brother Natho had simply received a minor abrasion which he did not even care to get medically examined. Thus the nature of injuries also goes to support the prosecution case that the appellants were the aggressors. 13. There is no doubt that the FIR of this case was first of all lodged by Parsadi appellant on the date of the occurrence, i.e. 29-5-1974 at 1.10 P.M. at the same police station and the FIR on behalf of the complainant was lodged by Gordhan Lal (PW 3) son-in-law of Lallu on the same day at 3.30 P.M.. The reason of this delay has been explained by Gordhan Lal (PW 3). He was not present at the time of the occurrence. On hearing the news he went to the place of occurrence on a rickshaw and took his injured father-in-law and mother-in-law to the Primary Health Centre, Kosi KaJan as the condition of Smt. Rupan was serious, hence she was removed to Mathura Hospital. Under these circumstances, this delay in lodging the FIR does not adversely affect the merit of the prosecution case. 14. Since the condition of Smt. Rupan was very serious and Gordhan Lal was in a hurry to rush her to Mathura Hospital, in that hurry the I. O. recorded the statement of Gordhan Lal and Lallu under section 161 CrPC in a cursory manner and that is why they contained a general statement that all the assailants had assaulted Smt. Rupan and Lallu. However, when they were examined in court, they have given the detailed statement to show how the actual occurrence took place and at that stage they have explained that Natho gave a Lathi blow on the head of Smt. Rupan and that Parsadi and Hari Singh had assaulted Lallu. Under these circumstances it cannot be said that it is a material improvement and can adversely affect the prosecution case. The FIR was dictated, and lodged by Gordhan Lal (PW 3) son-in-law of Lallu, therefore, it cannot be used against the eye witnesses for showing contradiction. Under these circumstances it cannot be said that it is a material improvement and can adversely affect the prosecution case. The FIR was dictated, and lodged by Gordhan Lal (PW 3) son-in-law of Lallu, therefore, it cannot be used against the eye witnesses for showing contradiction. Gordhan Lal (PW 3) has himself clearly stated in para 3 of his cross-examination that at the time of lodging the report he forgot to mention in the FIR the setting of net for catching rabbits in the field of Lallu as well as the injuries of the appellants. 15. In view of the above discussions, we are fully satisfied that the occurrence started in the manner alleged by the prosecution and it was not even probable that the same might have started in the manner alleged by the appellants. According to the appellants, they had gone to catch rabbits along the railway line and Lallu (PW 1) started abusing them. It is not disputed that the appellants had gone to catch rabbits, but if it was a fact that they were catching rabbits near the railway line and had not caused any damage to the Kakadi and Kharbooja crop of Lallu injured, there was no reason why Lallu would have unnecessarily started assaulting them. The case set up by the defence is not worthy of credence, and it has been rightly rejected by the trial court. No witness has been produced in support of the contention of the appellants and statement of Hukum Pal, Lekhpal (DW 1) is of no help to the appellants, because he was not a Lekhpal at that time. He simply gave plot numbers standing in the name of Lallu and has filed a Khasra of 1381 F. Ex. Kha 6 to show that no Kakadi or Kharbooja crop was sown in any of the fields of Lallu. He himself had not done the Partal because he was not the Lekhpal at that time. Therefore, no importance can be attached to his statement. Kakadi and Kharbooja are extra crops and they are not generally shown in the Khasara. All the witnesses have stated that the crop was standing in the field. Even the I. O. has mentioned Kharbooja in the site plan. This fact is also mentioned in the FIR. Under the circumstances, we find no merit in the defence case and reject it. 16. All the witnesses have stated that the crop was standing in the field. Even the I. O. has mentioned Kharbooja in the site plan. This fact is also mentioned in the FIR. Under the circumstances, we find no merit in the defence case and reject it. 16. Now the only question left for our consideration is as to what offence has been made out against the appellants. There was no previous enmity between the parties. The Marpeet started on a trivial matter of plucking Kakadi and Kharbooja by the appellants. It appears that when Smt. Rupan abused them for her loss and wanted to throw their net, the appellants were annoyed and they started beating. Nathoo appellant inflicted a Lathi blow which stuck on Smt. Rupan's head. When her husband, Lallu came to her rescue, all of them started beating him also. He also wielded Lathi in his defence. Lallu received three injuries, out of which one is on his head. Smt. Rupan received only one injury on her head. No body repeated any blow on Smt. Rupan when she fell down. Under these circumstances, we have no doubt that the assailants formed an unlawful assembly to assault the victims. But it cannot be said that the common object of that unlawful assembly was to commit any act, which were either intended to cause death, or, from which knowledge of likelihood of death could be inferred. Yet from the facts and circumstances of this case, we are convinced that the minimum common object of that unlawful assembly was certainly to cause grievous injuries to Smt. Rupan and Lallu. No doubt the eye witnesses have stated in the trial court that Nathoo appellant has caused the head injury to Smt. Rupan on account of which she died on the same day. There is no doubt that the aforesaid single injury on the head of Smt. Rupan was sufficient in the ordinary course of nature to cause death; yet it cannot be said that it was intentional. But this fact is neither mentioned in the FIR nor in the statements of witnesses recorded by the I. O. under section 161 CrPC that Nathoo appellant has inflicted the aforesaid single Lathi blow on the head of Smt. Rupan. But this fact is neither mentioned in the FIR nor in the statements of witnesses recorded by the I. O. under section 161 CrPC that Nathoo appellant has inflicted the aforesaid single Lathi blow on the head of Smt. Rupan. Therefore, to be on safer side, convictions of both the appellants for this act will be fully justified only under sections 325/149 IPC and three years' R. I. to each of them will meet the ends of justice. In view of the above discussions, convictions of both the appellants under section 302/149 IPC by the trial court are not justified and we accordingly alter the conviction of each of the appellants from under section 302/149 IPC to that under section 325/149 IPC. Each of them is sentenced to undergo R. I. for a period of three years on that count. The convictions and sentences of both the appellants under sections 323/149 and 147 IPC as imposed by the trial court are maintained. 17. In the result the appeal is partly allowed. Conviction of both the appellants under sections 302/149 IPC is altered to that under section 325/149 IPC. Each of them is sentenced to undergo R. I. for a period of three years on that count. Convictions and sentences of both the appellants under sections 323/149 and 147 IPC imposed by the trial court are maintained. All the sentences shall run concurrently. The appellants are on bail. They shall be taken into custody forthwith and sent to jail to serve out their modified sentences according to law. Appeal partly allowed.