Judgment S.H.S.Abidi, J. 1. Appellant Arbind Kumar has been convicted under Secs. 302 and 148 I.P.C. and has been sentenced to rigorous imprisonment for life end three years respectively. Appellant Raj Kumar Singh has been convicted under Sections 302/149 I.P.C. and has been sentenced to rigorous imprisonment for ten years. He has further been convicted under Secs. 148, 324 and 326 I.P.C. and sentenced to rigorous imprisonment for three years under each count. Appellant Ram Babu Singh has been convicted under Secs. 302/149 IPC and has been sentenced to rigorous imprisonment for ten years. He has further been convicted under Section 148, IPC and sentenced to rigorous imprisonment for three years. Appellant Raghunath Singh has been convicted under Secs. 302/109 and 302/149 and has been awarded ten years rigorous imprisonment under each count. Further, he has been convicted under Sec. 148 IPC and sentenced to rigorous imprisonment for three years. However, Ranidhani Singh another accused has been acquitted. 2. The case of the prosecution was that on 12.1.82 in the morning at about 8 a. m. the informant Janak Singh (P. W. 6) along with his wife and sons were working in the Onion seedlings field, then all the accused came there and wanted to take water through northern portion of their field. As on the earlier occasion the informant was not allowed to take water through the land of the accused persons so the informant and his men objected to the accused taking water through the informants field. This resulted into altercation and exchange of abuses. Appellant Raghunath Singh said that the revolver has been purchased for them and so kill them. Then the appellants except Raghunath Singh took out their revolvers whereupon the informant got terrified. Appellant Arbind fired at the wife of the informant Smt. Jotiya who got the fire-arm injury and again on the order of Raghunath Singh, appellant Raj Kumar fired at Bisundeo Singh who got injuries below the elbow of the right hand. The informant also received injuries in his right hand, and so also Lakhi Singh (P. W. 5) got injuries. However, the revolver of appellant Rambabu Singh misfired. Alarm witnesses Surendra Singh, Bramhdeo Singh, Dinesh Singh (P. Ws. 2, 3 and 4) and others arrived at the spot. Smt. Jotiya succumbed to her injuries within ten minutes of the occurrence. 3. The informant also received injuries in his right hand, and so also Lakhi Singh (P. W. 5) got injuries. However, the revolver of appellant Rambabu Singh misfired. Alarm witnesses Surendra Singh, Bramhdeo Singh, Dinesh Singh (P. Ws. 2, 3 and 4) and others arrived at the spot. Smt. Jotiya succumbed to her injuries within ten minutes of the occurrence. 3. Hira Lal Singh (P. W. 8) the I.O. of Rajapakar Police Station on getting sudden information about firing being done in village Rajapakar-Kushwahatola made diary entry No. 149, dated 12.1.82 and proceeded for the place of occurrence along with the police force and recorded the fardbeyan (Ext. 4) of Janak Singh and sent the same for registration of the FIR being Ext. 5 at the police station and then he started investigation. He prepared the inquest report (Ext. 6). He also prepared injury reports of the injured and Bent the dead body of Smt. Jotiya for post mortem examination. He prepared a site plan and also got during the investigation a sketch map (Ext. 9) prepared by Dwarika Pd., Amin, (P. W. 9). After completing the investigation charge-sheet was submitted by him. Dr. Harinath Gupta (P. W. 7) had conducted the post mortem examination on 12.1.82 at about 7.20 p. m. over the died body of Jotiya and submitted the post mortem report (Ext. 2) and had found following injuries on her person: One lacerated wound 1/2" x 1/2" x abdominal deep with charred skin margin on the front of abdomen 21/2" left of umbilicus directing backwards, downwards and right wards and opening into wound of exit 1/2" x 1/2" on the upper part of right buttock On dissection the perilonium, descending colon and small intestine was found ruptured at five places and the right hip bone was fractured in the upper part. There was huge accumulation of blood in abdominal cavity. Time elapsed death within 24 hours. The injury was caused by fire arm, Death in the opinion of the Doctor was due to shock and hemorrhage caused by above noted injury. This very Doctor had also examined Janak Singh (P. W. 6), Bisundeo Singh (P. W. 1) and Lakhi Singh (P. W. 5) and submitted his reports (Exts. 3, 3/1 and 3/2 respectively). Their injuries are as follows: The injury of Janak Singh--1. This very Doctor had also examined Janak Singh (P. W. 6), Bisundeo Singh (P. W. 1) and Lakhi Singh (P. W. 5) and submitted his reports (Exts. 3, 3/1 and 3/2 respectively). Their injuries are as follows: The injury of Janak Singh--1. One small rounded wound with blacken edges 1/4" x 1/4" x 1/4" on the upper part of front of forearm left side. (ii) One small rounded wound with blacken edges 1/4" x 1/4" x 1/4" on the upper part of front of right thigh. (iii) One small rounded wound with blacken edges 1/4" x 1/4" on the posterior surface of right palm over the proxinal phalyxial area of right thumb. The injury of Bisundeo Singh--(i) One oval lacerated penetrating wound 1/4" in diameter in the back of middle of right forearm with fracture of radius bone passing through whole thickness of forearm wound of exit on the front of middle of forearm with lacerated averted injury 21/2" x 1-3/4" with muscle protruding the wound on the right forearm. (ii) Two small rounded lacerated weund with blacken edges on the back of right hip 1/4" in diameter. (iii) One small rounded lacerated wound with blacken edges on the middle of right thigh on the lateral surface 1/4" x 1/4" x 1/4". (iv) One small rounded lacerated wound with blacken edges on the upper lateral surface of right arm- 1/4" x 1/4" x 1/4" (v) One small rounded lacerated wound on the right side of abdomen on the middle portion. Age of injuries within 6 hours. Injury No. 1 was grievous in nature and rest were simple caused by fire-arm. The injury of Lakhi Singh.--(i) One small rounded wound with blacken edges 1/4" x 1/4" x 1/4" on the front of left thigh upper part. (ii) Abrasion 1/2" x 1/8" on the posterior surface of left forearm upper part, Age of injuries within 6 hours. Injuries were simple in nature caused by fire arm. 4. The accused in defence denied the prosecution case and alleged that the occurrence as said by the prosecution has taken place in a different mariner. (ii) Abrasion 1/2" x 1/8" on the posterior surface of left forearm upper part, Age of injuries within 6 hours. Injuries were simple in nature caused by fire arm. 4. The accused in defence denied the prosecution case and alleged that the occurrence as said by the prosecution has taken place in a different mariner. The accused also gave a counter-version contained in the fardbeyan given at the Sadar Hospital, Hajipur at 3.30 p m, the same day against Shyamnandan Siugh and others which was recorded by Sub-Inspector of Police, Hajipur Police Station in which n was said that on that very day (12.1.82) at about 8 a. m the informant (Raghunath Singh) and his family members-Rajkumar Sinmgh, Ram Babu Singh and Ramdeni Singh were irrigating the Makai field. Then Shyamanand Singh, Mahesh Singh, Satyanarain Singh with revolvers; Surendra Singh with Farsa; Lal Singh with Bhala; Janak Singh with Kudal; Bisundeo Singh wiih Lathi; Lakhi Singh with revolver and Ramswaroop Singh came and they cut the drain stopped the irrigation. Ramswaroop Singh ordered them to kill whereupon Mahesh Singh fired at Rajkumar Singh (appellant No. 2) at his hand, Shyamnandan Singh fired hitting Rambabu (appellant No. 3) at the left palm. In the meanwhile Jotiya Devi came to intervene and in the meantime Lakhi Singh fired from his gun which hit Jotiya Devi in her abdomen and she died. Other accused also fired from their revolvers. Bisundeo Singh and Janak Singh were also injured. They were empty-handed and the informant had got only Kudal and so they ran from there and went direct to the hospital. The injured from the side of the accused were badly injured. There was previous dispute also between the parties. This incident is said to have been seen by Ramdeni Singh, Muneshwer Singh who had come to the place of occurrence before the altercation The injured were not in a position to give the statement. The two injured Raj Kumar and Ram Babu were examined the same day by Dr. H.N. Gupta (P. W. 7) at 11 and 11.10 a. m. respectively and he had found the following injuries (Ext. A) on their person: The injury of Rajkumar.--(i) Lacerated injury 3" x 31/4" x full thickness of left palm with multiple fracture of bones of left hand on lateral side with thumb assont and margins blackened and charred. Age of injuries within 4 hours. A) on their person: The injury of Rajkumar.--(i) Lacerated injury 3" x 31/4" x full thickness of left palm with multiple fracture of bones of left hand on lateral side with thumb assont and margins blackened and charred. Age of injuries within 4 hours. Nature of injuries grievous. It was caused by fire-arm. The injury of Ram Babu Singh.--(i) Lacerated wound 31/4" x 31/4" with whole thickness of Palm of left hand with multiple fracture of bones and laceration of tendons and muscles with blacken margin of skin of left palm. (ii) One lacerated wound 2/3" x 1/8" x skin on the back side of right palm at the hate and inner side of right thumbs. Age of injuries within 4 hours Injuries No. (i) was grievous and No. (ii) was simple in nature. Both injuries were caused by fire arm. 5. Three witnesses in defence have been examined by the accused. They are D.W. 1 (Munna Singh) who has proved counter FIR (Ext. A) of Raghunath Singh. Amarjeet Singh (D.W. 2) and Darshan Singh (D.W. 3) have proved some papers (Ext. D & F) and the signatures thereon. 6. The prosecution in support of its case produced nine witnesses. They are Bisundeo Singh, injured, (P.W. 1), Surendra Singh, Bramhdeo Singh and Dinesh Pd. Singh (P.Ws. 2, 3 and 4 respectively) who are eye witnesses of the occurrence; Lakhi Singh (P.W. 5) an injured who has been tendered; Janak Singh informant (P.W. 6); Dr. H.N. Gupta (P.W. 7) who had conducted postmortem examination on the dead body of the deceased and examined the injuries of the injured from both sides, Hira Lal Singh (P.W. 8) the I.O. of this case and Dwarika Pd. Singh (P.W. 9) who has prepared the sketch reap of the place of occurrence. The learned trial court after considering the entire material on the record convicted and sentenced the appellants as said above. 7. Learned Counsel for the appellants has urged that in this case the prosecution has not come out with correct version and the genesis of the occurrence has been concealed which is borne out from the counter FIR and so the case or the prosecution is liable to be thrown out on that score. Next it was contended that the accused wanted to cut the Nali and stop the irrigation and so they were aggressors and the accused had a right of self-defence. Next it was contended that the accused wanted to cut the Nali and stop the irrigation and so they were aggressors and the accused had a right of self-defence. It was argued that the prosecution has concealed the injuries in the FIR received by appellants, but in the statement in court they have tried to explain the same which shows that the prosecution party was not coming with clean hands and further the explanation that has been given by the prosecution about the injuries of the appellants is not in consonance with the medical evidence, and so in view of the conflict between the oral and medical evidence about the injuries of the accused the version of the prosecution is shaken. It was also contended that on the acquittal of Ramdeni Singh, the conviction of the appellants under SectionS 302/149 IPC is not maintainable and when the conviction under SectionS 302/145 IPC is not maintainable, the appellants also could not be convicted with the aid of Sec. 34 IPC as no charges have been framed in respect of the said offence. Further from the facts of the case nothing has come out that there was common intention of the accused to commit the offence. The distance of firing as given out by the oral and medical evidence in conflicting 7-A. The death of Smt. Jotiya well proved by the evidence of P. Ws. 1 to 5 as well as eye witnesses, the I.O. (P.W. 8) who has prepared the inquest report and the Doctor (P.W. 7) who had conducted the postmortem examination. 8. To appreciate the contentions of the learned Counsel for the appellants, the evidence led by the prosecution will have to be scrutinised. Janak Singh (P.W. 6), the informant in this case, has supported the case of the prosecution as given out in the fardbeyan saying that on 12.1.82 at about 8 a. m. while he along with his wife and sons were working in the Onion seedling field the accused came there and wanted to take water through the northern portion of their field. The informant objected to that as earlier the accused had stopped him to take water. The informant objected to that as earlier the accused had stopped him to take water. On account of that there was altercation and exchange of abuse whereupon on the order of Raghunath Singh that the revolver has been purchased for the informant party and so they should be killed, the appellant Arbind Kumar fired at the wife of the informant Smt Jotiya who got an arm injury and then appellant Rajkumar fired on Bisundeo Singh who got the injury below the right elbow. The informant also received injury. The revolver of appellant Rambabu Singh misfired. Smt. Jotiya died on the spot. In his statement in court this witness has tried to explain the injuries of the accused saying that Rambabu tried to fire but he got injury from his own weapon. Appellant Raj Kumar also tried to fire but the barrel of his gun got busted and so he got injuries in his band. He also admitted that as to how the accused received injuries was not said by to the police. He said that from the field of Radhe Singh towards east there is no Nali irrigation and that from the boring of Radhe Singh water never went towards east. He admitted that when the I.O. went to the place he and his sons along with the witnesses were present and no Nali was shown to the I.O. and that it was not a fact that I.O. found a Nali towards north from the field of Brajmohan and that there was not no sign of taking water that through that Nali and that it was not a fact that the I.O. had got a cutting mark in Mali at on place which was repaired by filling the mud. He has said that water is taken from one field to another field. He has not said in his fardbeyan that Raghunath Singh. Arbind Singh, Raj Kumar Singh and Rambabu Singh came and they began to take water through the field from the northern portion. He says that he has given his fardbeyan that they began to take water through the field. He says that he had not said so before the police. He says that his statement was not taken by the I.O. after the farabeyen. He says that he has given his fardbeyan that they began to take water through the field. He says that he had not said so before the police. He says that his statement was not taken by the I.O. after the farabeyen. He says that he has said in the fardbeyan that Ramdeai Singh, Raghunath Singh, Arbind Singh, Raj Kumar Singh and Rambabu came and they said that they would take water through the field of the informant and they would see as to who stops them and this resulted into altercation and that the mar pit had taken place in the field where blood had fallen and that they had gone in the field of Brajmohan after the mar pit. He has denied the suggestion that he had along with others gone with preparation to stop the irrigation of the accused persons. 9. Bisundeo Singh (P.W. 1) is an injured witness who has corroborated the statement of the informant. He too says that Rambabu fired whereupon the barrel of his gun got broken and his own hand got injured and so also Raj Kumar got injury in his hand on account of the breaking of the barrel of his gun. From the boring of Radhey the distance of his boring is about 100 yards and on the date of occurrence from the boring of Radhey to the field of the accused there was no Nali for irrigation and when the I.O. had gone to the place of occurrence through his field up to the field of Raghunath there was no Nali and when the I.O. had gone through the north of the field of Radhey there was no Nali and adjacent towards north there was no Nali and when Nali was going to be constructed it was stopped by the father of this witness. He says that his mother had not done anything on account of which there may be a reason for the accused to feel annoyed. 10. Surendra Singh (P.W. 2) is also an eye-witness besides the informant and his son Bisundeo Singh. He says that on the date of occurrence at about 8 a. m. he was plucking grass and unwanted plants in his field which was adjacent to the place of occurrence towards east. He had seen the informant, his wife and sons working in the Onion field. He says that on the date of occurrence at about 8 a. m. he was plucking grass and unwanted plants in his field which was adjacent to the place of occurrence towards east. He had seen the informant, his wife and sons working in the Onion field. Then Raghunath Singh and others came and said that they would take water through the Makai field of the informant whereupon Janak Singh said that he would not allow them to make Nali for taking the water through his field. He also deposed about the facts as has been said by the informant. He said that the land of the accused was never irrigated from the baring and so also the land of Brajmohan was not irrigated and there was no Nali existing earlier then the occurrence and towards east of the boring there was no Nali from east to west and no Nali was existing on the spot on the date of occurrence. He says that Janak Singh had shown the spot to the I.O. but no Nali was shown to the I.O. at the time of inspection. This witness said that he had not said to the police that Raghunath Singh had said that they would take water after making the Nali through the field of the informant, and that the informant had said that he would not allow the water to be taken to his field after making the Nali. 11. Bramhdeo Singh (P.W. 3) says that on the date ,of occurrence is about 3 Laggis towards east of his field. When the accused came, the informant his wife and sons were working in their Onion field and the accused said that they would make Nali for taking water through the field of the informant which resulted into altercation and mar pit and firing by Arbind Singh and Raj Kumar Singh. The barrel of gun of Raj Kumar got broken which resulted into injury in his hand and so also Ram Babu got injuries on account of the breaking of the barrel of his gun. Similar is the statement of Dinesh Prasad Singh (P.W. 4) who says that on the date of. occurrence at about 8 a. m. he had gone to Janak Singh for some work who along with his wife and others was working in his Onion field. Similar is the statement of Dinesh Prasad Singh (P.W. 4) who says that on the date of. occurrence at about 8 a. m. he had gone to Janak Singh for some work who along with his wife and others was working in his Onion field. Than the accused came armed and said that they had to construct a Nali for which Jaaak Singh objected and then altercation and firing took place. Two of the accused received injuries on account of breaking of the barrel of their respective guns. He has said in para 3 of the statement that on the date of occurrence the accused were not taking water through the field of the informant and that he has not said before the police that the accused wanted to take water through the field. 12. The last eye witness is Lakhi Singh who has been tendered by the prosecution. He was also injured. His injury report is Ext. 3/2. He has not been cross-examined. 13. This is the entire evidence led by the prosecution about the occurrence. P. Ws. 1, 5 and 6 are injured. They have been medically examined by Dr. H.N. Gupta on 12.1.82 and has given his report Ext. 3 series as mentioned above. So on that score atleast the presence of these witnesses on the spot is guaranteed. Surendra Singh, Bisundeo Singh and Dinesh Pd. Singh have also deposed about the occurrence Nothing has come out in their evidence to show that these witnesses are deposing falsely or that they are inimical or that they have got no reason to be on the spot. Thus from the evidence of injured as well as non-injured witnesses the prosecution has been able to establish that the accused came to the spot and wanted to take water which was objected to by the informant party resulting into altercation and firing by the accused which resulted to the injuries to the witnesses and also injuries to Smt. Jotiya who died. This occurrence also led to the injuries to two of the accused in their hands on account of breaking of the barrel of their gun. 14. This occurrence also led to the injuries to two of the accused in their hands on account of breaking of the barrel of their gun. 14. As to the contentions of the learned Counsel for the appellants that the genesis of the occurrence has not been given, it has to be seen that the prosecution has given out a case that the accused persons were trying to make Nali through the field of the informant party which was objected and resisted by the informant resulting into firing causing injuries to Smt. Jotiya and then injuries to P.Ws. 1, 5 and 6. This origin or genesis of the offence has been explained by the prosecution witnesses as seen above. The accused by way of counter FIR as well as in defence have said that they were attacked by the informant party and that they have set up their own case. It is to be seen how far the cross case has got its effect upon the prosecution, how far the injuries said to have been received by the accused have got effect upon the case of the prosecution and further how far the prosecution has been able to explain the injuries of the accused and what is the effect of its non-explanation in the FIR. Origin or genesis of the occurrence is relevant and important and it has been dealt with in several decisions of the Supreme Court as well as of the High Courts. 15. In the case of State of Bihar V/s. Met. Khurshid AIR 1971 SC 2263 at page 2270 para 7, the Supreme Court observed: It seems to us, however, that the finding of the High Court that there was a clash between the respondent on the one side and the deceased on the other about the time and the place of occurrence is not vitiated as there is some material to support this finding. Once this finding is accepted then it must follow that the prosecution has not put forth the genesis and the manner of the occurrence fully. The prosecution has not been able to explain why the respondent should suddenly take in his head to attack the deceased while he was in the company of three persons, mentioned above, and there must have been some immediate reason why this incident took place. The prosecution has not been able to explain why the respondent should suddenly take in his head to attack the deceased while he was in the company of three persons, mentioned above, and there must have been some immediate reason why this incident took place. If there h a doubt as to the origin of the fight the benefit must go to the respondent. In the case of Mohan Rai V/s. State of Bihar -- it has been observed that the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in case of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that: the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused u is rendered probable so as to throw doubt on the prosecution case. 16. In a later decision of Puran Singh and Ors. V/s. The State of Punjab -- , after relying upon the case of State of Gujrat V/s. Bai Fatima -- , it was held in para 20 at page 1985 by the Supreme Court that if the prosecution did not come out with the true version of the nature and origin of the occurrence, they cannot blame the Court if the entire version presented by them is rejected. Their Lordships again observed in para 19 at page 1985 that in the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded indeed mystery, which is sufficient to demolish the entire prosecution case. In the case of Lakshmi Singh and Ors. In the case of Lakshmi Singh and Ors. V/s. State of Bihar -- , it was observed: It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;