JUDGMENT 1. 1. The appellants have been convicted for the offences under sections 148, 323/149 and 325/149 IPC and sentenced to imprisonment ranging from 3 months to one year and fine from Rs. 100/- to Rs. 250/- and in default of payment of fine they have been directed to suffer simple imprisonment for different periods, by the Sessions Judge, Bundi by his judgment and order dated 5th Sept, 1980 and 6th Sept, 1980. All of them have been acquitted for the under section 307 IPC. Two accused, namely, Sohan and Babu were less than 21 years of age and they were released under section 4 of the Probation of Offenders Act. Eleven persons who have been convicted have preferred this appeal. 2. The incident out of which this case arises occurred on the night of 13th Jan., 1980. The relevant places of the village Peepalwasa are canal wherein water flows and 75 yards from it there is a 'charakhi' of the accused party. At this 'charakhi' the juice of sugar cane is taken out for purposes of converting into molasses. Heera, Ramkaran and Hazari were warming themselves on a fire when Ram Karan went towards the canal to have a wash. When Ram Karan was putting his dhoti then all the accused came there and gave beating. He shouted, the accused Mohan caught hold of him and all the accused dragged him and took him to the 'charakhi'. He was kicked and beaten and he became unconscious. On heating the shouts of Ram Karan, Sheokaran & Hazari came there and they alongwith Heera were also given some blows. The first information report of the incident was lodged on the same might by Heera and the case was registered. The injured persons were sent to Hospital for medical examination. Sheokaran and Heera had to remain in Hospital. 3. Before looking into the injuries of the injured persons the version of the accused party may be looked into. Their case is that the complainant party had come to the 'charakhi' at the time of the dispute and they gave beating to Pokar and Ladu who were sitting there. Ramkaran and Hera gave blows to Ladu and others pelted stones. The witnesses Pokar and Keshra intervened and the complainant party ran away. The injuries of the complainant party and also that of the accused party may be looked into at this stage. Ramkaran and Hera gave blows to Ladu and others pelted stones. The witnesses Pokar and Keshra intervened and the complainant party ran away. The injuries of the complainant party and also that of the accused party may be looked into at this stage. They are as under: Ramkaran : 1. Contusion 3" x 1 1/12" redish blue Over the left shoulder 2"Posterior--Simple--Blunt. 2. Contusion 3" x 2" redish blue Over the lateral surface of tipper ⅓rd Part of left leg-Simple Blunt. Seokaran: 1.Contusion 3" x" Oval Over the left parieietal region Opinion after Xray-By blunt weapon. 2.Contusion 7" x 5",irregular redish blue in colour Over the left lumber region simple-By blunt weapon 3.Contusion & Abrasion 2" x 1⅓" with brown scabs Over the Posterior surface ⅓rd of Rt. forearm-Simple-By blunt weapon 4.Abrasion l /2" x 1 /2" with brown scabs Over the Anterior surface of Rt. leg 3" above Rt. Ankle-Simple-By blunt weapon. 5.Abrasion 1"x5" Over the lateral side of Rt. leg-Simple-By blunt Weapon. 6.Contusion 2" x 11/2"redish blue Over the left knee-Simple-By blunt weapon. Heera : 1. Contusion & Abrasion 2"x 1" Over the left side of fore-head 2" above the left eye brow=Opinion after Skiagram-By blunt 2. Contusion 2" x 11/2" Over the left parietal region-Opinion after skiagram-By blunt 3. Contusion 1" x 1" redish blue Over the left cheek-Simple-By blunt 4. Contusion 3" x 2" redish blue Over the Anterior lateral surface of left forearm-Opinion after Xray-By blunt 5. Contusion 3" x 1" oblique redish blue Over the Rt. scapular region-Simple-Blunt 6Contusion 9" x 6" redish blue Over the left Inguinal and gluteal region-Opinion after skiagram -By blunt 7. Abrasion 11/2" x 1 /4" Over the lateral side middle of left thigh-Simple-By blunt 8. Contusion 5" x 3" redish blue Over the lateral surface upper ⅓ part of left leg-Simple by Blunt 9. Abrasion 11/2" x 1" brown scabs Over the Medial side of upper ⅓rd part of Rt. leg-Simple Blunt 10. Contusion. 31/2"x2"redish blue in colour Over the Antro lateral surface of Left Elbow Simple-By Blunt. Hazari : 1. Lacerated wound Over Rt. Parietal region Simple By blunt weapon 2. Contusion & Abrasion 3" x 2" redish blue Over the lateral side middle of Right thigh-Simple-Blunt weapon. 3. Contusion & Abrasion 4" x 2 ½" redish blue Over the Rt. Scapular region-Simple Blunt 4. Hazari : 1. Lacerated wound Over Rt. Parietal region Simple By blunt weapon 2. Contusion & Abrasion 3" x 2" redish blue Over the lateral side middle of Right thigh-Simple-Blunt weapon. 3. Contusion & Abrasion 4" x 2 ½" redish blue Over the Rt. Scapular region-Simple Blunt 4. Contusion 2" x 11/2" redish blue Over the lateral surface of left upper arm- Simple- Blunt. 5. Contusion ,3"x2" redish blue Over the lateral surface of Middle Part of left leg-Simple-Blunt , On the side of accused: Pokhar : 1. Abrasion 2" x 1" Over the lateral side of Middle Part of Rt. leg-Simple-By blunt weapon 2. Abrasion irregular Over the left side of fore-head ⅛" above the Rt. eye brow-Simple-Blunt Weapon. Ladu : 1. Contusion 11/2" x l" Over the left side of fore-head1/2" lateral to lateral angle of left eye brow-Simple-By Blunt weapon 2. Abrasion 1" x 1" irregular with brown scabs Over the Ant. surface of Rt. knee-Simple blunt 3. Abrasion 1" x1/2" irregular with brown scabs Over the Anterior surface of Rt. knee1/2" above injury No. 2. Simple-Blunt weapon. 4. The learned Sessions Judge after considering the contentions raised on behalf of the prosecution as well as the defence arrived at the conclusion that when several persons were beating a number of persons, it could not be possible to distinguish as to which accused had inflicted which blow, but the beating has to be accepted as proved and as there were two grievous injuries, all the accused were liable for the offences under sections 325 and 323 IPC read with section 149 IPC and also under section 148 IPC. 5. According to the prosecution, the incident happened at the canal from where Ramkaran was taken to the Charakhi and he and others were beaten at the charakhi and not near the site of the canal. Heera, Seokaran and Hazari were beaten at the charakhi itself. Ramkaran has received only two injuries, which are confusions and they are on shoulder and left leg 3"X2 and 3X11/2" in size. Considering that there were two injuries to Ramkaran, it had been contended for the appellants that the case about giving heating at the canal and also at the charakhi has been falsely made out and actually the incident took place at the charakhi only. Considering that there were two injuries to Ramkaran, it had been contended for the appellants that the case about giving heating at the canal and also at the charakhi has been falsely made out and actually the incident took place at the charakhi only. According to the learned counsel for the appellants it was the complainant party which first attacked Ladu and Seokaran and then later on all the accused acted in self defence. It is contended that the complainant party objected to the charakhi of the appellants and it was on account of this that the incident took place. It is contended that this story of taking Ramkaran to the charakhi is false and the very genesis of the incident has been suppressed. Ramkaran was found at the charakhi itself and he had only two injuries when he says that five persons had given blows to him. In the defence evidence three witnesses have been examined who have stated that they were attacked first and the incident took place at the site of the charakhi. The accused party had no motive to give beating to the complainant side and it was only when they were attacked that the incident took place. 6. The learned Public Prosecutor has contended that the injuries of the two accused persons are minor injuries and on the basis of these injuries it cannot be said that the non-explanation of the same goes to the root of the case. The incident according to him started at the canal itself and was only later on that Ram Karan was taken to the charakhi and other persons who came to his assistance were also given beating. 7. From the evidence on record it has to be determined as to how the incident started and where it took place, and whether the appellants have been able to make out a case that the complainant party was the aggressor, who first inflicted blows on accused Pokar and Ladu. 8. The incident took place at about 8.00 p. m. on a cold night near the canal where Ramkaran is said to have been beaten by the appellants. This is at quite some distance from the houses of the people living in the village. 8. The incident took place at about 8.00 p. m. on a cold night near the canal where Ramkaran is said to have been beaten by the appellants. This is at quite some distance from the houses of the people living in the village. For eleven or more persons, who came together and attacked the persons at this place, they have to know that a particular person would be found at that place at that time and if it was their intention to give bating to that one person there was no reason as to why they would take him to the place where there was a charakhi. Ramkaran could have been left at the canal itself. The statement of Ramkaran that he was first given blow; by Ramdeva followed by Ranga, Ladu and Mohan, who caught hold of his throat, can be probable provided the medical evidence corroborates it. His further statement that he was caught hold and taken to charakhi does not appear to be true. Had he been taken to charakhi there would have been more than two injuries which were found on the shoulder and left leg. Distance from the canal to the charakhi has been said to be 60 yards and it can be said that it was not an easy matter to drag up to this place without inflicting further injuries. The circumstances show that the place of incident has been deliberately shifted to the canal when it was actually at the charakhi site. 9. The suggestion had been made to PW 3 Ramkaran that he had objected to Pokar fixing the charakhi at that place and at that time the complainant party had gone to give beating to Pokar and Ladu. Actually this is the case of the defence and when there are injuries, even though minor to Pokar and Ladu, the manner in which the incident took place can be said to be more probable, more in consonance with the story of the defence. As far as the injuries arc concerned, it can be said that the injuries of the complainant party were bruises and abrasions except for one lacerated wound on the parietal region of Hazari, and two fractures, one of Seokaran and another of Heera. 10. As far as the injuries arc concerned, it can be said that the injuries of the complainant party were bruises and abrasions except for one lacerated wound on the parietal region of Hazari, and two fractures, one of Seokaran and another of Heera. 10. PW 1 Heera, PW 4 Sheokaran and PW 6 Hazari, who went towards the place of occurrence on hearing the shouts of Ramkaran, found Ramkaran, near the charakhi and not at the canal from where Ramkaran is said to have been dragged. These three witnesses were also given beating and it can be said that they should also have been there alongwith Ramkaran when the incident took place and this can be said to be possible only if the incident had taken place at the charakhi itself. 11. When, once it is concluded that the place of incident was the site of the charakhi, the theory of the defence that Pokar and Ladu were first beaten because tea complainant party objected to their installing charakhi at that place and that the complainant party was the aggressor becomes probable. It is sufficient for the accused to prove its case by mere preponderance of probability and they do not have to prove their case beyond the shadow of reasonable doubt. This, they have been able to do in the present case and when the accused were first attacked by the complainant party then the injuries inflicted by than in their self defence can be said to be justified and no offence can be said to have been committed by them. 12. In the result the conviction of the appellants deserves to be set aside and the conviction and sentence imposed by the Sessions Judge ate quashed. The appeal is accepted.Appeal Accepted. *******