JUDGMENT 1. - This appeal has been preferred against the judgment dated 30th July, 87, passed by the Addl. Sessions Judge, Neem-ka-Thana, convicting the accused-appellants under section 3 2/149, IPC, and sentencing each of them to imprisonment for life and a fine of Rs. 500/-, and in default of payment of fine, to further undergo rigorous imprisonment for six month each; under section 147, IPC, to rigorous imprisonment for two years each; under section 325/149, IPC, to rigorous imprisonment forte years each, and a fine of Rs. 200/-, and in default of payment of fine, to further undergo rigorous imprisonment for two months each; and under section 323, IPC, to rigorous imprisonment for one year each. 2. On 2nd May, 84, one Gopal submitted a written-report to SHO, PS Ringas, to the effect that at about 2 PM on that date, he himself, his uncle Raju, his mother Sundi. Sundari. Aanchi, Nathi and Vimla were threshing wheat at their field. Kana and Gadpat had also their fields nearby. Kana gave filthy abuses to the women. At this, Raju asked him not to abuse them. There upon, Kana replied that day he would see them all, and then called all other persons from his Khalihan. Kana, Nathu, Gome, Gopi and the others who have been named in the report (Ex. P. 8) then arrived there with a common object armed with lathis and Jaily and attacked them. Kana inflicted a lathi blow on the head of Raju, and Pokar inflicted a Jaily blow on the head of Raju. Raju fell down on the ground, and thereafter, he was continued to be belaboured by lathis and Jallis. Sardara inflicted one Jaily blow on the hand of his mother, who fell down on the ground. He (informant) to save himself, stood some Daces away from the place of occurrence. Then. Sundi Anchi, Sundari, Vimla and Nati were attacked with lathis and Jailies. who fell down on the ground. Hearing their cries, Lalu and Hanuman came there. The assailants seeing that Raju had died, ran away from the place of occurrence It was alleged in the report that the intention of the accused persons was to kill them (complainant-party), and with that common object, the accused persons had arrived there and inflicted blows. 3. On the above report, a case under section 147. 148,149, 307 323 and 325 and 457, IPC, was registered. ASI. 3. On the above report, a case under section 147. 148,149, 307 323 and 325 and 457, IPC, was registered. ASI. Lalaram. went to spot and prepared a site-plan (Ex. P. 10). The accused persons were arrested Recovery of weapons was also effected on the information and at the instance of the accused persons. Later on Raju died, and his post-mortem was connected by Dr. O.P. Sharma PW 14, The post-mortem report is Ex. P. 26. Raju had 7 external injuries out of which, injury No. 1 was a lacerated wound on the left occipital of the scalp oblique; and No. 2 was also lacerated wound on the right parietal region of the scalp Injuries Nos. 3 & 4 were contusions; and 5 & 6 were abrasions. And, injury No. 7 was multiple punctures on both the forearms anterior aspect. In the opinion, the cause of death was intracranial hemorrhage and laceration of brain-material. After usual investigation, the police submitted a challan against 14 accused persons. 4. The trial court, framed charges against the accused-persons under sections 147, 302, 302/149, 325/149, 323 and 323/149, IPC The accused persons pleaded not guilty and claimed trial. The contention of the accused persons was that at their Khalihan Surja, along with 5-7 other persons had come and started beating kana and others. It was also alleged that the field of the complainant-party and the accused-party was a joint one, and that litigation between the two parties regarding the field, was going on. 5. The prosecution examined 22 witnesses to establish its case. One witness, Dr. Satyanarain, was also examined by the accused persons, in their defence, who examined the injuries of accused Kana and Pokar. 6. The learned trial court, after concluding the trial, found the accused-appellants guilty and sentenced each of them as mentioned above; and eight other accused persons who were not found guilty of any of charges levelled against them, were acquitted by it. 7. The learned counsel for the accused-appellant argued that the incident had taken place at the filed bearing Khasra No.501, which was in joint-possession of the two parries, at the time of the alleged incident. It was also argued that all the witnesses have stated that the portions of the filed of both the parties, were demarcated by a DOP i.e., there was a DOL in between their fields. It was also argued that all the witnesses have stated that the portions of the filed of both the parties, were demarcated by a DOP i.e., there was a DOL in between their fields. But, the site-plan (Ex P- 10) which was prepared by Lalaram, ASI does not show such `DOP, as has been stated by the witnesses So, the argument was that the site-plan (Ex. P. 10) has not been correctly prepared, and the prosecution has tried to hide that the dispute had taken place at the field which was in possession of the accused persons. It was also argued that there was no immediate cause of the incident, and that, it was for the prosecution to prove as to what circumstances had emerged which resulted in the incident. According to him, there was no reason for the accused persons to have come to the field of the complainant-party and unnecessarily beat them. He argued that actually, the complainant-party had come to their Khalihan and Kana and Pokar were beaten up by them. It was also argued that Kana and Pokar had received injuries, but, they were not explained by the prosecution. Another argument was of self-defence. The learned counsel argued that Kana and Pokar were beaten up by the complainant-party, and then, in order to save themselves, they (accused-party) had inflicted injuries to complainant-party. Kana, according to the learned counsel, was only 17 years of age, at the relevant time Heargued that besides Kana and Pokar, accused-appellant Sardara also had received injuries at the hands of the complainant-party. So, in their right of private defence, the accused-party had to inflict injuries to the complainant-party, argued the learned counsel for the accused-appellant, who further added that no case of unlawful-assembly has been established by the prosecution, and so, conviction of the accused-appellants with the aid of S. 149, IPC is bad, and further that in a case, where there is a plea of right of private-defence, accused persons cannot be convicted with the aid of S. 34, IPC. It was mentioned by the learned counsel, during the arguments that though the prosecution witnesses have denied the fact of receiving injuries by the accused persons, Lalaram ASI, PW 22 has admitted that the accused persons also had injuries. Therefore, according to the learned counsel, it was the duty of the prosecution to have explained the injuries of the accused persons. Therefore, according to the learned counsel, it was the duty of the prosecution to have explained the injuries of the accused persons. 8. The next contention of the learned counsel for the accused-appellants, was that no case is made out under section 302, IPC. He argued that it is in the evidence that Kana and Pokar accused each had inflicted one blow to Raju, but, there is no evidence on record that the other accused-appellants also had inflicted blows to Raju Under these circumstances, according to him if any case is made out against accused Kana and Pokar, that would be under section 304-II, IPC only; and as the plea of self-defence has been taken by the accused persons, the remaining accused appellants cannot be convicted with the aid of S. 34, IPC; and lastly, he argued that as no unlawful-assembly was formed by the accused-appellants, conviction of the remaining accused persons with the aid of S. 149 under section 325, IPC, is also not correct. 9. Mr. N.L. Tibrewal, the learned counsel for the complainant argued that the site plan (Ex P. 10) was correctly prepared by Lalaram. ASIPW22, According to the site-plan, the incident had taken place at place marked, `ABCD. On the north of the place of incident, there was the house of Raju (deceased) On the eastern side of the house of Raju deceased, there were the houses of Bhagwana and Sua of the complainant-party. On the southern side of the place of incident, there was an `Aaam-Rasta (public-way and further, on the southern side of the Aaam-Rasta. there was the field of Kana accused On the eastern side of the field of Kana, at point, `I there was the house of Kana accused; and on the western side of the field marked, `K, there was the houses of Nathu and others, which is marked,. It was argued by him that the entire filed in possession of the complainant-party which is on the northern side of the Rasta, as shown in Ex. P. 10, and the filed of Kana which is shown on the southern side of the Rasta, and the respective houses of both the parties, are in the same Khasra No. 501. It was argued by him that the entire filed in possession of the complainant-party which is on the northern side of the Rasta, as shown in Ex. P. 10, and the filed of Kana which is shown on the southern side of the Rasta, and the respective houses of both the parties, are in the same Khasra No. 501. This fact has not been disputed by the learned counsel for the appellants Therefore, it is clear that fields of the complainant-party as well as the accused-party, are in the same Khasra No. 501, and in between their fields, their is a rasta shown at Point, L in the site-plan (Ex P. 10). Therefore, the argument of the learned counsel for the appellants that the incident had taken place at the field bearing Khasra No. 501, which was in possession of the accused party, is not a correct one-to this aspect it is correct, that the incident had taken place in Khasra No. 501, at places marked ABCD in the site-plan (Ex. P 10), but this place of incident is on the northern side of the Aaam Pasta, while the accused persons had their field at point `K on the southern side of the Rasta which is also in Khasra No. 501. There is no evidence on behalf of the accused-appellants, on the record to prove that the place of incident marked ABCD in Ex. P. 10, is their field, and that they are in possession thereof. 10. Under section 313 accused Kana has stated that he was in his Khala, where Surja, along with 5-7 other persons had come and started quarrelling with him. So, according to the accused-persons, the dispute had taken place at their Khala. It is not in the evidence that the place of incident marked ABCD in Ex. P. 10, is the Khala of the accused persons. Therefore, the accused persons have tried to mislead the court by arguing that the incident had taken place which was in possession of the accused-party in Khasra No. 501 - This is certainly a : misleading argument. No doubt, the incident had taken place at Khasra No. 501, which was in joint-possession of both the parties, but, actually, the incident bad taken place at the portion which was in possession of the complainant-party. So, it cannot be said that the site-plan (Ex. No doubt, the incident had taken place at Khasra No. 501, which was in joint-possession of both the parties, but, actually, the incident bad taken place at the portion which was in possession of the complainant-party. So, it cannot be said that the site-plan (Ex. P 10) prepared by Lalaram, ASI, is an incorrect one. When the fields of both the parties were interrupted by a common Rasta, there was no question of joint-possession over the place of incident. 11. Gopal PW 3 in his cross-examination, had stated that the field in which the incident had taken place, was of Raju, and that was Khasra No. 501, and that since time immemorial, Raju was in possession thereof, and further that near that field, the other portion was of Kana and others, the khasra number of which was also 501. According to this witness, in between these two fields, there is a Dol and Rasta. All the other prosecution witnesses have given a similar statement. So, there is a Rasta in between the fields of both the parties demarking their fields. The witnesses have stated about the 'DOL. and this DOL has not been shown in the site-plan (Ex P.10) But, this is not so material an omission. The Rasta is there which demarcates fields of both the parties It was immaterial that the `DOL has not been shown in the site-plan (Ex P. 10). So it is clear, and we are of the opinion that the place of incident marked ABCD in Ex.P.lO, was in possession of Raju, being in his field and the accused persons were not in possession thereof. On the other hand, their field was on the southern side of the Aam Rasta marked `L in the site-plan (Ex P. 10). 12. Then, according to Kanas statement under section 313, Cr P C. the dispute had taken place at his Khala. He has not stated that the incident had taken place at such a place which was in joint possession of both the parties. According to him, he was in his Khala, where the complainant party had come and started beating them. It is not their contention that they were also beaten in the field which was in joint possession of the parties. According to him, he was in his Khala, where the complainant party had come and started beating them. It is not their contention that they were also beaten in the field which was in joint possession of the parties. Therefore, the argument of the learned counsel for the appellants, has no force that non-mention of the `DOL in the site-plan (Ex.P.10), is fatal to the prosecution story. 13. The learned counsel for the appellants also argued that the appellants in their self-defence, had inflicted injuries to the complainant-party. According to him, Pokar and Sardara had received injuries, and their injury reports are Exs. D/9 and D/8 respectively. The trial court has convicted the appellants with the aid of of S. 34, IPC. The argument was that if in the exercise of right of private defence of persons, some, altercation had taken place and the accused persons had to inflict injuries to the complainant party, and more so, when one person had died, it would be treated that the accused persons had exceeded their said right, and in such circumstances, none of the accused persons, could be convicted with the aid of either S. 149, IPC or 34. IPC- He has cited the cases of State of Bihar v. Nathu, ( AIR 1970 SC 27 ) ; and Takchand and another v. State of Haryana, ( AIR 1972 SC 228 ) . 14. The argument on behalf of the complainant-party was that there was no question of right of private defence in this case According to the learned counsel for the complainant-party, deceased Raju was in possession of that portion of Khasra No 501, where, incident had taken place, and the accused persons armed with weapons, bad arrived there and inflicted belows to Raju and others. Regarding forming unlawful assembly by the accused persons, we have gone through the entire evidence. Mr. Tibrewal, the learned counsel for the complainant-party argued that the accused persons had formed an unlawful assembly, and that their common object was to give beating, so far as accused Jaggu, Sardara, Manna and Kalu were concerned, the common object of these accused persons could not be to kill Raju. Kana and Pokar accused had this common object, and as there was enmity between the two parties regarding the land bearing khasra Nos. Kana and Pokar accused had this common object, and as there was enmity between the two parties regarding the land bearing khasra Nos. 519 & 520, they had the common object of taking ' forcibly possession, and if they were resisted, then not only to give beating, but even to commit murder. Therefore, a case of unlawful assembly has been established by the prosecution It is also established by the evidence that the accused persons armed with various weapons, had entered into that portion of khasra No. 501. which was in possession of Raju deceased. As stated by Kana under section 313 Cr.P.C., he was in his Khala when the complainant-party had come and started beating him and companions There was no injury on the body of Kana. The injuries were on the persons of Pokar and Sardara. When there was no injury to Kana, it shows that his contention that the complainant-party had come to his Khala and started beating him and his companion is incorrect. This is admitted fact that Pokar and Sardara had injuries on their bodies. Kana also admits his presence over there. It has not been proved by the accused persons that the incident had taken place at the Khala of Kana. So, it is clear that the incident had taken place at place/point ABCD marked in Ex P. 10, which was in possession of Raju (deceased). The accused persons had gone to that place and inflicted injuries to complainant-party. Therefore, the accused persons were the aggressors. When the accused persons were the aggressors, there was no question of right of private-defence to them. 15. In the case of Sonelal v. State of U.P., ( 1981 (2) SCC 531 ) , on the facts of a similar case, the deceaseds father in exercise of the right' of private-defence of person and property, snatched a weapon from one of the assailants causing injuries to some of the accused, and therein, it was held by their Lordships of the Supreme Court that even if the accused persons had received injuries from the victims, they could not claim the right of private-defence. 16. In Nath Singh and others v. State of U.P. etc. etc., ( 1980 (4) SCC 402 ) , their Lordships have observed that no right of private defence of initial aggressors. 16. In Nath Singh and others v. State of U.P. etc. etc., ( 1980 (4) SCC 402 ) , their Lordships have observed that no right of private defence of initial aggressors. While discussing the facts of the case, it was held in that case that the accused-party was the aggressor, and therefore, right of private-defence was not available to them. 17. In State of U.P. v. Pussu alias Ramkishore, ( 1983 (3) SCC 502 ) , their Lordships have observed that aggressor receiving injuries in the course of bis murderous attack on the deceased, not entitled to avail the right of self-defence. 18. In Laxman Sahu v. State of Orissa, (1986 (Supp.) SCC 535) their Lordships have observed as under : "The right of private defence is available only to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation. The necessity must be present, real or apparent. In the instant case, there is nothing to show that the appellant caused the lathi blow on the head of the deceased in order to defend himself against apprehended assault on a vital part of his body. In the circumstances, there was no justification for such a vital blow inflicted on the head causing death of the deceased. The appellant exceeded his right of private defence as he was rightly convicted under section 304 - I." 19. After perusing the above case-laws, and the evidence on record, we are of the opinion that the accused persons in this case, were the initial aggressors, and in that circumstance, they had no right of private-defence The accused had formed an unlawful-assembly, and in furtherance of common object, they gave beating to the complainant-party From the evidence, we find that accused persons Jaggu, Sardara, Kalu and Manna had common object of simply giving beating to the complainant-party. They, however, had no common object of committing murder. Therefore, these four accused cannot be convicted for committing murder of Raju. We are, therefore, of the opinion that a case under section 302, IPC, is not made out against these accused-appellants. As is clear from the evidence that Kana and Pokar had inflicted one blow each to Raju on his head which resulted in his death. They did not give any further blow to Raju (deceased). We are, therefore, of the opinion that a case under section 302, IPC, is not made out against these accused-appellants. As is clear from the evidence that Kana and Pokar had inflicted one blow each to Raju on his head which resulted in his death. They did not give any further blow to Raju (deceased). From the evidence, it cannot be inferred that the accused persons had acted with the intention of causing death or causing such bodily inquiry as was likely to cause death. But, it can be inferred that while inflicting the blows on the head of Raju, which was a vital part of the body, Kana and Pokar had the knowledge that the injuries which they were inflicting, was likely to cause death, though, they had no intention of causing his death or any such bodily injury which was likely to cause death Therefore, in our considered opinion, the case against accused Kana and Pokar falls under section 304-11 IPC- As indicated above, the other accused persons, namely, Jaggu. Sardara, Manna and Kalu cannot be found guilty of offence under section 302/149, IPC, but, they are liable to be punished under sections 147, 325/149 & 323. IPC. 20. In the result, the appeal is partly accepted. Appellants Kana and Pokar are acquitted of offence under section 302/149, IPC. They are found guilty of offences under sections 304 II, IPC, 147, 325/149 & 323, IPC. For offence under section 304-II IPC, both are sentenced to rigorous imprisonment for five years each; for offence under section 325/149- IPC, each of them is sentenced to rigorous imprisonment for three years and a fine of Rs. 200/-, and in default of payment I of fine, to further undergo rigorous imprisonment for two months; tor that under section 117, IPC, they are sentenced to rigorous imprisonment for two years each; and under section 323, IPC, each of them is sentenced to rigorous imprisonment for one year each. All the substantive sentences awarded to both these appellants shall, I however, run concurrently. 21. Appellants Jaggu, Sardara, Manna, and Kalu are also acquitted of I offence under section 302/149, IPC. They are found guilty of offences under sections 147, 325/149 C- and 323, IPC. These appellants have already been in jail for sufficient time. So, we award them sentence already undergone by them, and in addition, we impose upon them a fine of Rs. Appellants Jaggu, Sardara, Manna, and Kalu are also acquitted of I offence under section 302/149, IPC. They are found guilty of offences under sections 147, 325/149 C- and 323, IPC. These appellants have already been in jail for sufficient time. So, we award them sentence already undergone by them, and in addition, we impose upon them a fine of Rs. 1,000/ - each, in default of payment of this fine, each of them shall undergo rigorous imprisonment for one year.Appeal Partly allowed. *******