JUDGMENT 1. - Appellants have been convicted by the learned Sessions Judge, Alwar, vide his judgment dated 26th May, 1987, for the offence under S. 302/34 IPC and each of them have been sentenced to undergo life imprisonment and a fine of Rs. 1,000/-. 2. Prosecution story unfolded during the trial is that on 27th September, 1985, at about 9 to 10 a.m. quarrel took place between Gyan Singh and his family members. Gyan Singh, had two wives namely Mindro Bai, and Bassi Bai. The present appellant and other two are the sons of deceased Gyan Singh and Bassi Bai, is the real mother. Mindro Bai, is the step mother and he had also two sons and they are the members of the complainant party. There was a dispute about the field. It is alleged that the four sons wanted the share in the agricultural field. However, it was denied by the Gyan Singh and his two sons. A piece of land was sold by Gyan Singh to Kartar Singh. It is an admitted position that initially quarrel took-place in the field which was sold by Gyan Singh to Kartar Singh. There is a further allegation that Kartar Singh, Shilo Bai and Jaggo Bai, were beatten by the accused. The version of the accused persons is that the quarrel took-place in the field of Ranjeet Singh. There is a further allegation that when Kartar Singh and others were going to the police station to lodge the F.I.R. near by the house of the Gafoor, Gyan Singh and Mst. Mindro Bai met them. Accused Cliaran Singh and his brother Harjeet Singh, were also going towards that side. There is a further allegation that Harjeet, started beating and Gyan Singh, fired a shot which resulted in the death of his son Harjeetsingh. Thereupon the other brothers of Harjeetsingh, present two appellants namely Charansingh and Ranjeetsingh, Maya, wife of Charansingh, and Dalveer son of Harisingh, attacked on Gyansingh, and Gyansingh, died. Mindro Bai, was thereafter attacked. The learned Sessions Judge, examined the prosecution witnesses namely PW 1, Sheelo Bai, PW 2, Jaggo Bai PW 3, Bantasingh, PW 4, Darshansingh PW 5, Kartarsingh, and PW 6 Tejasingh, as eye witnesses. The lower Court has disbelieved the testimony of PW 6, Tejasingh. PW 11, Dr. Hanuman Singh, examined Mst. Mindro Bai, and he found 4 wounds on the person of Mst. Mindro Bai. The lower Court has disbelieved the testimony of PW 6, Tejasingh. PW 11, Dr. Hanuman Singh, examined Mst. Mindro Bai, and he found 4 wounds on the person of Mst. Mindro Bai. Out of the 4 wounds, 3 wounds are the incised wounds caused by the sharp edged weapon. The fatal blow is injury number 3, which is a lacerated wound 3" x 1" x 1/2" on the occipital region of scalp. There was a fracture on occipital bone and sub haemetoma containing about 4 on of clotted blood below the site of injury with laceration of brain. The injury has been caused by blunt object. The learned Sessions Judge, extended the benefit of right of private defence, as far as murder of Charansingh, is concerned, however, present appellants have been convicted for committing the murder of Mst. Mindro Bai. The learned Sessions Judge, found that it is very difficult to find out that who is author of injury number 3 and as such no person can be convicted under section 302 IPC simplicitor. The learned Sessions Judge, bad also convicted the present accused appellants under S. 302/34 IPC. PW 1. Sheelo Bai, has stated that Mindro Bai, was murdered by Maya, and Balveer. Thus, she does not name Charansingh. Balveer is also called as Dalveer. PW 2, Jaggo Bai, has stated that Gyansingh, fired a shot resulting in the murder of Harjeet, who was the member of the accused party. Thereafter. Maya, inflicted a lathi blow on Mindro Bai. Thereafter all the persons started beating Mindro Bai. She does not say who is the author of injury. PW 3, Bantasingh, has stated that Charansingh. Maya and Dalveer, had lathis. He further states that as soon as Gyansingh fired a shot resulting in death of Harjeet. His other brothers started given beating to Mindro Bai, by lathis. He further states that Maya, Dalveer, inflicted lathi blows on Mindro Bai. PW 4, Darshan Singh, also does not specifically says who is the author of injury No. 8, sustained by Mindro Bai. PW 5, Katarsingh, also does not say who is the author of the injury number 3, sustained by Mindro Bai. Thus, the learned Sessions Judge, has rightly come to the conclusion that the prosecution has failed to prove who was the author of injury number 3, sustained by Mindro Bai, which was fatal. 3. PW 5, Katarsingh, also does not say who is the author of the injury number 3, sustained by Mindro Bai. Thus, the learned Sessions Judge, has rightly come to the conclusion that the prosecution has failed to prove who was the author of injury number 3, sustained by Mindro Bai, which was fatal. 3. The learned Sessions Judge, has rightly extended the benefit of right of private defence as far as the murder of Gyansingh, is concerned. Now we will have to examine only about the murder of Mindro Bai. It is an admitted position that there was no plan or premeditate action on the part of any of the accused. Kartarsingh, and other persons were going to lodge the FIR the accused party and the complainant party met near the house of Gafoor, deceased Gyansingh, fired a shot resulting in the death of Harjeet, who was one of the member of the accused party. For this reason, the learned Sessions Judge, has extended the benefit of right of private defence in favour of the accused persons about the murder of Gyansingh. The incident is a one incident in which Harjeet, the brother of the accused died first and thereafter the complainant party lost two persons namely Gyansingh and Mindro Bai. It will not be out of place here to mention that there was no question of meeting of minds and in the facts and circumstances of the case, S. 34 IPC cannot be applied. The injury sustained by Mindro Bai, on the head has been caused by blunt object and there is only one injury caused by blunt object. There are different persons about the occurrence and the authorship of the injury. 4. In the facts and circumstances of the case, we are not inclined to accept the prosecution case. Thus none of the accused can be convicted with the aid of S. 34 of the IPC and S. 302. It will not be out of place here to mention that there are 3 incised wounds and none of the accused has been convicted for causing incised wounds. 5. Learned counsel for the petitioner appellants has submitted that there was a case of acquittal and the court-below might have disbelieved the theory of the prosecution regarding causing injuries with `Pharasi'. The accused Maya, has already been acquitted. 5. Learned counsel for the petitioner appellants has submitted that there was a case of acquittal and the court-below might have disbelieved the theory of the prosecution regarding causing injuries with `Pharasi'. The accused Maya, has already been acquitted. In the facts and circumstances of the case, we accept the appeal and set aside the conviction of the accused appellants under S. 302 read with S. 34 of the IPC. At the most, there can be a common intention to cause injuries. The shot has been fired by Gyansingh and the right of private defence has also been extended in their favour. At the most, there can be a case of under Sections 324, 326 and 325 of the IPC. The accused persons have remained in jail for a period of more than 31/2 years. 6. In the result, the appeal filed by the accused appellants is accepted and they are acquitted for the offence under S. 302/34 IPC. The present appellants are convicted for the offence under S. 325 and 326 of the IPC with the aid of Section 34 IPC. The accused persons have remained in jail for more than 31/2 years, the period during which the accused persons remained in jail will be sufficient for the purpose of awarding sentence on both the counts. No separate order is necessary. The accused persons are in jail and they may be released if not needed in any other case.Appeal partly accepted. *******