JUDGMENT 1. - This appeal is directed against the judgment of the learned Sessions Judge, Ganganagar dated 20th May, 1988 whereby the learned Sessions Judge, has convicted the accused-appellant as under: 2. Brief facts of the case giling rise to this appeal are that an FIR was relied on 22nd Jan., 1987 at 1.00 a.m. by PW 1 Melasingh stating there in that on 21st January, 1987 at about 8.30 p.m. accused Bhagel Singh, Charan Singh and Bariansingh along with ladies or their house came to his house and caused beating, as a result of which one Mst. Kammobai, mother of Mela Singh died. His father and other brothers and ladies of his house also received several injuries. Nine persons were named in the FIR as assailants. 3. It is alleged the during the day, the accused Beghelsingh came to their house end he tried to outrage the modesty of Mst. Passobai; PW 2. At that time nobody was in the house. When all the members of the family came to the house in the evening. PW 2 Mst. Passobai informed them about the accused Bhagelsingh. Thereupon, he Melasingh, and ether members of the family went to the house of Charansingh who is the father of Bhagel Singh and protested about the misbehavior of his son Bhagelsingh. This created a commotion and other people of the neighbourhood also came there and intervened. It was decided that let there be a PANCHAYAT which resolve the matter. On this, they withdrew to their house. The house of the complainant and the accused are adjacent to each other. At about 8.30 p.m. in the night, the accused persons about 9 in number including Baghelsingh, Darasingh, Dulesingh, Charansingh & Bariansingh came their house and remonstrated that why they are falsely blaming Baghelsingh for trying to out rage the modestly of Mst. Passobai. There ensued a quarrel in which the accused persons gave a beating to the complainant party. As a result of it, Melasingh's mother died and other members of his family also received various injuries. It may also be mentioned here that the accused part also filed an FIR on 2nd January, 1988 at 12.30 a.m. that Kashmirasingh, Jindasingh, Varim Singh, and Melasingh came to the house of Charansingh and belaboured them and the woman-folk of the family. On this counter case was also registered against the complainant party. It may also be mentioned here that the accused part also filed an FIR on 2nd January, 1988 at 12.30 a.m. that Kashmirasingh, Jindasingh, Varim Singh, and Melasingh came to the house of Charansingh and belaboured them and the woman-folk of the family. On this counter case was also registered against the complainant party. The police, after closing of investigation, found that six accused persons were guilty under various offences viz. 302, 4S 0, 354, 323, 324, 147, 148 and 149, Indian Penal Code and filed a challan against these persons, namely, Charansingh, Dulesingh, Darasingh, Baghelsingh & Barian Singh and Mst. Bachanobai under the aforesaid sections. The case was ultimately committed to the Court of Sessions for the trial. 4. The prosecution, is support of its case, examined 13 witnesses. The learned Sessions Judge, Ganganagar, after due trial, convicted all the four accused-appellants under the aforesaid sections and also convicted accused Bariansingh and Mst. Bachanobai but be granted them benefit of probation to both of them. Hence, the four accused-appellant have filed this appeal. 5. Mr. M.L. Garg, learned Counsel for the appellant has taken me through all the evidence on record and submitted that there is case of over implication as according to the complainant there were nine persons involved in the incident but the Police have filed challan against only 6 accused persons. The learned Counsel further submitted that the complainant party has also received various injuries including incised wound but there is no explanation provided by the prosecution for these injuries. As such the genesis of the dispute is not known and the accused persons are entitled to the benefit of doubt In support of his contention the learned Counsel has relied upon 1976 SCC (Cr) 249 Amrithalinga Nadar v. State of Tamil Nadu & 1988 RCC 18 Parmod Kumar v. State of Rajasthan . The learned Counsel further submitted that as a matter of fact the complainant had the grouse because Mst. Passabai, daughter of Melasingh, was attempted to be molested by Baghel Singh therefore, the complainant party came to the house of the accused. Thereafter the scuffle took place and injuries were inflicted. The learned Counsel submitted that it was the complainant party who was the aggressor and not the accused party. 6. As against this, the learned Public Prosecutor and the learned Counsel appearing for the complainant supported the judgment. 7. Thereafter the scuffle took place and injuries were inflicted. The learned Counsel submitted that it was the complainant party who was the aggressor and not the accused party. 6. As against this, the learned Public Prosecutor and the learned Counsel appearing for the complainant supported the judgment. 7. I have heard both the learned Counsel and the learned Public Prosecutor and perused the record. The first and foremost question in this appeal is that as to who was the aggressor. From the facts of the case it is apparent to that according to the statement of Melasingh, PW 1 he and all the members of the family had gone out for the day's work and Mst. Passobai was all alone in the house. When he came back in the evening he was told by Mst. Passobai about the misbehaviour of Baghel Singh. Thereupon he along with other members of the family went to the house of Charansingh and protested about the said misconduct of Baghelsingh. The heat was generated but some more people came there and through their intervention, it was settled that the dispute would be decided by the Panchayat. After, that, late in the evening, at about 8.30 p.m. all the nine accused persons came to his house and remonstrated that they are wrongly blaming Baghel Singh. It is alleged that all these persons were armed with lathies and gandasies. Dulesingh and Baghelsingh were armed with lathies Bachanbai was also armed with a lathi. First of all, Bagbelsingh gave a lathi blow on his head. Thereafter, Baghelsingh caused lathi blows on Mst. Kammobai, As a result of these blows she fell down. Mst. Bachanbai also shouted that the complainant should be dealt with. Thereafter, Darasingh also gave a lathi blow on the head of Mst. Kammo Bai Mst. Bachanbai also gave lathi blow on Mst. Kammobai. At that moment, Zindasingh of the complainant party came and intervened whereupon Charansingh gave a lathi blow on the head of Zindasingh which hit him on the left side of the head and which caused the fracture of skull. Then his brother Mangusingh came, Bariamsingh have a gandasi blow on his left leg and Mst. Bachanobai also gave a lathi blow on his head but he warded off. Then Mst. Binndobai' the sister of Melasingh was also dealt lathi blows. Dulesingh gave a gandasi blow upon her. Then his brother Mangusingh came, Bariamsingh have a gandasi blow on his left leg and Mst. Bachanobai also gave a lathi blow on his head but he warded off. Then Mst. Binndobai' the sister of Melasingh was also dealt lathi blows. Dulesingh gave a gandasi blow upon her. Then his sister in law Mst. Bindobai and his aunty were also beaten by Baghel Singh. Thus atleast, 7 persons from the complainant side received various injuries and they were immediately removed to hospital at Shivpur. Mst. Kammobai, was declared dead in the hospital. Other persons were treated for their injuries. 8. Similarly, there is the statement of PW-2, Mst. Passobai, PW-4 Zindasingh and PW 5 Kashmirasingh. Likewise are the statements of PW 6 Mangusingh, PW 7 Bhagwan bai and PW 8 Bindobai. PW 5 Kashmirasingh also lives in the neighbourhood and supported the prosecution version. He had come at the scene and tried to intervene in the matter. PW 3 Genda Singh has also supported the version of the prosecution as he resides in the neighbourhood, but be was declared hostile. PW 10, Dr. Narendra Singh examined the injuries of the injured persons and according to the injury report the following injuries were received by the injured persons.1. Gendasingh- (1) Incised wound 2" x ⅛" x 1/2" left fronto-paerietal region of head; (2) Contusion 3/4" x 3/4" on middle of head; (3) Contusion with swelling 3" x 2" on dorso ulnar side of fore-arm 1" from wrist joint; (4) Contusion 2" x 1" on calf region of right leg. 2. Mangusingh- (1) Abrasion 1/2" x 1/2" on posterior aspect of left hand at base of little finger; (2) Incised wound 12" x 1" x 1" lateral side of right leg 1" above to lateral malunas. 3. Melasingh- (1) Abrasion 1/2" x 1/4" post aspect of right hand at base of middle ring finger; (2) Contusion 2" x 1" posterior aspect of right leg above the ankle joint; (3) Contusion with swelling 11/2" x 1" right band ulnar side 3" from wrist joint; (4) Contusion with swelling 2" x 1" right perietal region of head 2" above right ear. (5) lacerated wound 21/2" x 1/4 x 1/2" left paerietal bone of bead 41/2" above left ear. 4. (5) lacerated wound 21/2" x 1/4 x 1/2" left paerietal bone of bead 41/2" above left ear. 4. Mahendrabai- (1) Incised wound 11/2" x 1/4" x 1/4" & 1" x 1/4" & 1" on right side of back 3" away from vertical column upto lavy of elic crest (2) lacerated wound 2" x 1/4" x 1/2" bone-deep and frontal bone of head 2" from left eye brow. 5. Bhagwanobai- (1) Contusion with swelling 3" x 4" left lateral side of thorracic gage. (2) Contusion with swelling 3" x 2" on left shoulder. (3) Lacerated wound 11/2" x 1/4 x 1/2" right paerietal region of head 3" above right ear. 6. Hukmibai- (1) Contusion with swelling 2" x 2" posterior aspect of right fore-arm 2" above wrist joint. (2) Contusion with swelling 2" x 2" on right shoulder. 7. Kammobai- (1) Lacerated wound 11/2" x 1/2" bone deep at mid of head. (2) Contusion 21/2" x 1/2 on left paerietal region of head. He also examined the injuries at the same time of the complainant party on the counter-case filed by the accused party. The injures received by 3 persons from the accused side namely, Mst. Bachanobai, Charansingh S/o Avtarsingh and Mst. Pyarobai W/o Avtarsingh. According to the Doctor, the injury caused on Mst. Kammobai was caused by a blunt weapon. 9. PW 11 Somdutt, the Investigating Officer, had prepared the site-plan Ex. P6. According to the site-plan, blood was found in the house of the complainant party and some blood was found in the front portion of the house of the complainant party. From these facts it appears that initially the incident arose on account of the misbehaviour of Bhagelsingh with Mst. Passobai and it was protested by the PW 1 Melasingh and the matter was squared up with the understanding that it would be taken up by the Panchayat. This appears to have not been relished by the accused party, therefore they came to the house of the complainant party expressing their resentment. Mr. Garg, learned Counsel for the appellant submits that the grouse was with the complainant party and there was no reason for the accused party to have initially started the trouble. This appears to have not been relished by the accused party, therefore they came to the house of the complainant party expressing their resentment. Mr. Garg, learned Counsel for the appellant submits that the grouse was with the complainant party and there was no reason for the accused party to have initially started the trouble. It cannot be accepted for the simple reason that if the complainant party were the aggressor they would not have received a large number of injuries numbering as many as 20 and the dead body of Mst. Kammobai would not be found at the house of the complainant. Secondly, blood marks were found in the house of the complainant party and the front door of house. The Investigating Officer PW 11 has deposed that he registered both the FI L and he gave his findings that the incident took place in the house of the complainant party. How ever, the fact remains that the incident occurred in the house of the complainant party and not in the house of the accused. I am also conscious of the fact that both the parties are residing adjacent to each other. The accused party felt outraged on account of the allegations made by the complainant party and in order to chastise to complainant party they went to the house of the complainant party. A quarrel ensued and as a result thereof the complainant party received a large number of injuries besides the death of Mst. Kammo Bai mother of Melasingh. Therefore, in my view, the accused party was the aggressor and not complainant party. 10. The next question which arises is that the accused party has also received a large numbers of injuries and there no explanation given by prosecution for the injuries received by them. The learned Counsel for the appellants submitted that in such a situation the obvious inference is that prosecution has not come forward with clean hands and they are trying to suppress the genesis of the dispute. The learned Counsel submitted that it has been observed by the Supreme Court that in such case the prosecution story stands probabilised and the benefit should go to the accused, reference has been made to 1976 SCC (Cr) 249. Amrithalingo Nadar v. State of Tamil Nadu . The learned Counsel submitted that it has been observed by the Supreme Court that in such case the prosecution story stands probabilised and the benefit should go to the accused, reference has been made to 1976 SCC (Cr) 249. Amrithalingo Nadar v. State of Tamil Nadu . So far as the normal principle is concerned, it is no gain saying that it is the duty of the prosecution to explain the injuries received by the accused party. In case the prosecution fails to explain the injuries and the explanation provided by the accused is found to be consistent with the injuries received by them, then the prosecution story can be doubted How ever, applicability of this principle varies with case to case. It is not always necessary that the non explanation of the injuries on the part of the prosecution should result in benefit to the accused. In the present case, in fact, all the witnesses, when confronted with the injuries received by the accused persons, completely disowned their authorship and denied the causing of such injuries. But when they were confronted with their police statements wherein they had admitted that they did cause these injuries to the accused party in the scuffle, they disowned their statements given to the Police. Be as it may the fact remains that the incident took place at the house of the accused and in that seven persons of the complainant party received various injuries, as many as 20 in number and the scuffle also resulted in the death of Mst. Kammobai. Therefore, in this case, non-explanation of injuries is not that fatal to discard the whole prosecution story. 11. I have already come to the finding that incident took place at the house of the complainant party and the accused were the assailants. Two FI L were filed of this incident one by the accused and the other by the complaint party. Therefore, it is apparent that the accused were the aggressors and they had come to the house of the complainant party and gave the beating. In the course of the beating, it is not unlikely that the complainant party resisted and some persons on the side of the accused party also received the injuries with blunt weapons as well as by a sharpedged weapon resulting in various injuries. In the course of the beating, it is not unlikely that the complainant party resisted and some persons on the side of the accused party also received the injuries with blunt weapons as well as by a sharpedged weapon resulting in various injuries. Therefore, the whole case in the present context cannot be thrown out merely on account of the fact some injuries have been received by the accused party as well. However, at the same time it does cast some doubt on the trustworthiness of the statements of the witnesses. 12. Now the next question is as to what offence in the present case is made out. It is true that the accused party went to the house of the complainant party and remonstrated for the allegations levelled by the complainant party. It cannot, how ever, be said that they really intended to caused death or any serious injuries to the complainant party. All that can be inferred from the facts of the case is that they wanted to chastise them although they were armed with lathies and gandasies. But it cannot be inferred from various injuries received by the complainant party that they really intended to cause any serious harm as the matter itself was of a very petty nature. Since the accused party has caused injuries to the complainant party with sharp-edged weapons as well as with blunt weapons, therefore, they can be found guilty under Section 324 read with Section 149, Indian Penal Code and they can also be found guilty under Section 147, Indian Penal Code for forming unlawful assembly. But of them two persons have caused grievous injuries namely, Baghelsingh and Darasingh. These persons along with others caused the fracture to Mangusingh though Melasingh, PW 1 has not assigned this injury to Bariamsingh. On account of the statement of PW 2 Mst. Passobai the injury was believed to be given by accused Bariamsingh who has already been found guilty under Section 325/148 Indian Penal Code and other offences, how ever, the has been granted the benefit of probation. Likewise, Mst. Bachanobai, though found guilty for various, his also been granted the benefit of probation. 13. How the question is that who is responsible for cousins death of Mst. Kammobai. According to the statement of PW 1. Likewise, Mst. Bachanobai, though found guilty for various, his also been granted the benefit of probation. 13. How the question is that who is responsible for cousins death of Mst. Kammobai. According to the statement of PW 1. Melasingh and other witnesses the fatal blow was given by Baghelsingh and another blow was given by Darasingh with lathi. The learned Sessions Judge has not accepted this part of the prosecution story and has only convicted accused Baghelsingh under Section 304(1) Indian Penal Code as he has found that prosecution story about the second blow being by accused Darasingh is doubtful. In these circumstances, he has only convicted accused Baghelsingh under Section 304(1), Indian Penal Code. I think the learned Judge has rightly convicted Baghelsingh but it is different matter that whether it will constitute offence under Section 304 Part-I or Part-II. So far as the second blow given by accused Darasingh and Mst. Bachanobai, it has not been established as the deceased had only two blows on her heads. Under these circumstances, only Baghelsingh has been held responsible for causing death of Mst. Kammobai. It is true that in the present case all the accused persons are guilty of forming unlawful assembly and trespassing the house of the complainant party and they are also guilty of causing various injuries with sharp-edged weapons as well as with blunt weapons to the complaint party, but, it cannot be inferred that they really intended to cause death of Mst. Kammobai. Likewise, it can not be said that Baghelsingh had the intention to cause the death of Mst. Kammobai. He did give one blow on the deceased but the author of the second blow has not been established. It has not been established whether the second blow was inflicted by accused Darasingh or by Mst. Bachanobai. It is for this reason that only Baghelsingh has been held responsible for the fatal injury, how ever, he never intended to cause death of the deceased Mst. Kammobai. Here, the paramount intention of the unlawful assembly was to chastise the complainant party. But on account of the blow given by accused Baghelsingh Mst. Kammobai died and, therefore, Baghelsingh can be said to be guilty under Section 304 Part II of Indian Penal Code instead of under Section 304(1), Indian Penal Code. 14. Kammobai. Here, the paramount intention of the unlawful assembly was to chastise the complainant party. But on account of the blow given by accused Baghelsingh Mst. Kammobai died and, therefore, Baghelsingh can be said to be guilty under Section 304 Part II of Indian Penal Code instead of under Section 304(1), Indian Penal Code. 14. In the result, I allow this appeal in part and convict the accused Baghelsingh under Section 304 Part-II, Indian Penal Code. He is sentenced to 4 year's R.I. The remaining accused viz., Darasingh, Dulesingh and Charansingh are held guilty under Section 147, 148, 452, 324 and 323, Indian Penal Code. I reduce their sentences to the period of imprisonment already undergone.Appeal partly allowed. *******