JUDGMENT 1. Raghunath, son of Godaram, of Village Surani, under Police Station-Thoi, District-Sikar, has been convicted by the Sessions Judge, S'kar, by his judgment dated Mar. 7, 1979, for offence under section 326, IPC, and has oeen sentenced to three years rigorous imprisonment. Apart from Raghunath, Cbauthu, son of Surja, was found guilty of offence under section 323 IPC but, he was granted the benefit under section 4 of the Probation of Offenders Act 1958, and was released on his furnishing of the requisite bonds. Raghunath has filed this appeal against his conviction and sentence, in this Court. 2. The appeal had come up before Hon'ble D. L. Mehta, J. on May, *88. The learned Judge observed that there was a finding that Raghunath had inflicted a 'Farsi* blow, resulting in the death of Malaram, but there was no order of acquittal or conviction in the judgment of the Sessions Judge, in relation to accused under section 302 or in the alternative, under section 302/149, IPC; and that the Public Prosecutor stated that it was a fit case in which notice should be issued to appellant Raghunath as to why he should not be convicted under section 302 IPC, or under section 302/149, IPC and 307 of the said Code. That is how, this appeal has come up before a Division Bench of this Court. 3. Malaram, son of Ganpat, was the deceased, who is said to have been murdered as a result of the injuries inflicted on his body, by Raghunath appellant and other persons, who were accused in the case. The other persons injured during the course of the incident were Lalchand, son of Ganpat (PW2); Smt. Gulabi, daughter of Ganpat (PW4); and Babulal PW3. Five persons were accused in this case; and they were Raghunath appellant and his son Rameshwar; Surjaram, brother of Raghunath and his son Chouthu; and one more person. Sultan, who was reported to be absconding, and against whom, proceedings under section 299, Cr.P.C., were pending. 4. According to the prosecution, the facts relating to the incident were that Smt. Kaushalya PW7 was the daughter of Chander, who was brother of Ganpat. On Aug. 26, 78, Smt. Kaushalya PW7 was working in the field of her father Chander. At about noon on that day, the cattles of Raghunath appellant had entered into the field of Chander. 4. According to the prosecution, the facts relating to the incident were that Smt. Kaushalya PW7 was the daughter of Chander, who was brother of Ganpat. On Aug. 26, 78, Smt. Kaushalya PW7 was working in the field of her father Chander. At about noon on that day, the cattles of Raghunath appellant had entered into the field of Chander. These cattles were being grazed by Shanker, son of Raghunath. Smt. Kaushalya scolded Shanker, with respect to letting his cattles enter into the field, and she turned out the cattles. Shanker called his father Raghunath; and it is alleged that Raghunath inflicted some injuries on Smt. Kaushalya. She complained of this incident to Bhagirath and Ganpat and also to her brother, Sarvan. They convened a Panchayat-Meeting under the Chairmanship of Shankarlal, Sarpanch, Gram Panchayat Kalyanpura (PWI5), and in that meeting, Raghunath was asked to apologise to Smt.Kaushalya, and a fine of Rs. 51/- was imposed upon him. 5. Thereafter, the incident took place on Aug. 29, 78, at about 3 PM, near the houses of Ganesh Meena and Gheesa Ahir of Village Surani. According to the prosecution, Lalchand PW2 and Babulal PW3 were sitting near the house of Ganesh Meena. At that time, Raghunath appellant, along with Surja, Rameshwar, Chouthu and Sultan, came there. Raghunath, Surja & Rameshwar had axes in their hands, while Chouthu & Sultan had lathis with them. Raghunith exhorted his companions to assault Lalchand & Babulal whereupon,both of them began to run. While they were running, Rameshwar inflicted an injury on the head of Babulal from the reverse side of the axe. Chouthu and Sultan ran behind Lalchand PW2, and they inflicted injuries on him. In the meantime. Bhagirath PW5 came to the spot and he asked the assailants not to beat Lalchand and Babulal. The assailants then rushed behind Bhagirath, who, in order to save himself, entered into the house of Bannaram Meena, and he went upstairs of the house a for closing the door. At that time, Malaram (deceased) was coming from the side of his house; and he asked the assailants to desist from beating Lalchand and Babulal. It is alleged that thereupon, the assailants started beating Malaram. Raghunath appellant inflicted an axe blow on the head of Malaram, as a result of which, he fell down. At that time, Malaram (deceased) was coming from the side of his house; and he asked the assailants to desist from beating Lalchand and Babulal. It is alleged that thereupon, the assailants started beating Malaram. Raghunath appellant inflicted an axe blow on the head of Malaram, as a result of which, he fell down. Rameshwar inflicted an axe-blow on the right shoulder of Malaram, while Surja inflicted another axe-blow on the right leg of Malaram. Babulal and Lalchand tried to rescue Malaram; but, Sultan inflicted lathi blows on them. Smt. Bhuri PW10, wife of Malaram fell on the body of her husband, but, she was pushed aside by Rameshwar. Then, Gulabi PW4, daughter of Malaram fell on the body of her father; and she states that Chouthu inflicted injuries on her right ribs, and Sultan, on her left, hand. Kesri, Sitaram and Bhagirath came to the spot; and thereupon, all the five assailants left the place. Malaram was placed upon a cot, and in a cart he was taken to hospital at Ajitgarh, and was got admitted there. Dr. K.N. Soni PW16 was Medical Officer Incharge at Government Dispensary Ajitgarh; and on the arrival of Malaram in an injured state, he sent a communication (Ex.P.15) to the Incharge, Police Outpost Ajitgarh, informing the Incharge that Malaram, having grievous injuries on his body had come to the Dispensary at 8.45 PM, on Aug. 29, 1978. Later on, he sent another communication (Ex.P.16), to the Incharge of Police Outpost Ajitgarh, informing the latter that Malaram had died at the Dispensary at 9.30 PM. Bhagirath PW5 informed of this incident to Ganpat PWI, while Ganpat was returning to his house from his field, and he asked Ganpat to lodge a report at the police station. Ganpat then did not come to the place of incident, but, returned to Garh Takhnek and got an FIR ( Ex. P. 1 ) scribed from Shiv Prasad PW6, and presented the report before Umaid Singh, Head Constable, PW 24, who was at that time, Officer-in-Charge at PS Thoi. Upon receiving the report (Ex. P. 1), Umaid Singh registered a case about offences under sections 147, 323 & 224, IPC. Umaid Singh handed over the investigation to Sitaram, Head Constable, Police Outpost Ajitgarh. Sitaram proceeded to the spot and prepared a site-plan (Ex.P.5). Upon receiving the report (Ex. P. 1), Umaid Singh registered a case about offences under sections 147, 323 & 224, IPC. Umaid Singh handed over the investigation to Sitaram, Head Constable, Police Outpost Ajitgarh. Sitaram proceeded to the spot and prepared a site-plan (Ex.P.5). He collected blood-smeared soil and plain sand sample from the place of incident, under seizure-memos (Ex.P.6 & P.7). He prepared an inquest-report regarding the death of Malaram, which is Ex.P.14. This inquest-report was prepared in presence of Lala, Gheesa and Bhura. Autopsy of the deadbody of Malaram was conducted by Dr. K.N. Soni. The post-mortem (Ex.P. 17) mentions that the cause of death of Malaram was primary shock caused by head-injury by a sharp-edged weapon on the deceased. Malaram had one incised wound 6"x2"x lobe depth, cutting scalp, scalp-bone, meanings and brain (cerebrum) sagittaly placed 3" to the back of right car, extending from middle of ear to upwards. Apart from that he had also incised wound 2"x l" x l/2" sagittaly placed on upper part of right shoulder; and a lacerated wound l/2" x l/2" x l-4" posterior ediol side of left heel upper part. He also examined the injuries on the bodies Lalchand, Babulal and Gulabi, and prepared injury-reports (Exs.P.18, P.19 & P.20) with respect to the injuries substained by them. The chest of Gulabi was also got X-rayed; and Dr. V.K. Soni, Radiologist at S.K Hospital, Sikar, reported that Gulabi had fracture of posterior part of 9th & 10th rib of right side of chest. The clothes worn by Malaram were seized by Sitaram, under the seizure-memo (Ex.P.13); and after post-mortem examination, the deadbody of Malaram was handed over to his father Ganpat. Raghunath appellant, Surja, Chouthu and Rameshwar were arrested by Nazir Ahmed, SHO, PS Thoi, on Aug 31,78, under arrest-memos (Ex.P.25 to P.28) It is stated that Rameshwar gave information (Ex P.29) under section 27 of the Evidence Act. to Nazir Ahmed, regarding the axe; and in pursuance of that information. Rameshwar got recovered at his instance, from his field, the axe (art. 5), which was seized by the police under the seizure-memo (Ex.P.11). Chouthu also gave information (Ex P.27), regarding the lathi; and in pursuance thereof, the lathi (art 3) was recovered from the house of Chouthu, and seized under the seizure-memo (Ex.P.9). Surja gave information regarding axe (Ex.P.31). Rameshwar got recovered at his instance, from his field, the axe (art. 5), which was seized by the police under the seizure-memo (Ex.P.11). Chouthu also gave information (Ex P.27), regarding the lathi; and in pursuance thereof, the lathi (art 3) was recovered from the house of Chouthu, and seized under the seizure-memo (Ex.P.9). Surja gave information regarding axe (Ex.P.31). and got recovered from his house, the axe (art.6), under seizure-memo (Ex.P 10). These informations were given and recoveries were made on Sept. 8. 78. Thereafter, the investigation was taken over by Kharagsingh, DSP, Neem-ka-Thana. Raghunath appellant gave information (Ex P.24), regarding axe. to Khargsingh; and in pursuance thereof, he recovered an axe, at the instance of Raghunath and seized it under seizure-memo (Ex P.8). This axe is article-2 in the case. Blood-stained clothes of the injured, were also seized and sealed. The articles were sent for chemical-examination. After necessary investigation, the police filed a charge-sheet against Raghunath appellant, Rameshwar, Chouthu and Surja, in the court of Judicial Magistrate Neem-ka-Thana. The Judicial Magistrate Neem-ka-Thana, by his order dated Oct. 21. 1978, committed the case for trial to the court of Sessions Judge, Sikar. After trial, the Sessions Judge, Sikar, found appellant Raghunath guilty of offence under section 326, IPC and further found Chouthu guilty of offence u//s. 323, IPC; and convicted and sentenced Raghunath as aforesaid. It it against this conviction and sentence that Raghunath filed the present appeal before this Court, and, in pursuance of the order of the learned Single Judge dated May 4, 78, notice was served on Raghunath under section 401, Cr.P.C., to show cause as to why he should not be convicted under section 302, IPC, or under section 302/149, IPC; and under section 307, or under sections 307, 147, 148 & 149, IPC. 6. Before proceeding further, we may note the version of the incident as given by Raghunath appellant, Rameshwar and Chouthu, of the incident. According to Raghunath appellant, on the day of the incident, he, along with Rameshwar and Chouthu, was returning from their field. When he reached near the house of Bannaram Meena, suddenly, Malaram, Lalchand, and Babu attacked them. Malaram had a sword in his hand: and suddenly, he inflicted a sword-blow on the back of Kameshwar, who, thereupon, ran away, leaving Raghunath and Chouthu behind. Malaram also inflicted a sword-blow on Chouthu. Babulal inflicted a lath -blow od Raghunath. When he reached near the house of Bannaram Meena, suddenly, Malaram, Lalchand, and Babu attacked them. Malaram had a sword in his hand: and suddenly, he inflicted a sword-blow on the back of Kameshwar, who, thereupon, ran away, leaving Raghunath and Chouthu behind. Malaram also inflicted a sword-blow on Chouthu. Babulal inflicted a lath -blow od Raghunath. As Raghunath was an old man, he sat down after sustaining the lathi-blow. Thereafter Chouthu inflicted a lathi-blow on the hand of Lalchand, as a result of which, the axe fell down from the hand of Lalchand. Chouthu lifted the axe and inflicted a blow on Malaram. It is said that Chouthu had inflicted the axe-blow on Malaram to save the lives of himself and Raghunath. That is the version given by the appellant and his aforesaid two associates of the incident. It would thus appear that an incident no doubt had taken place, in which, Malaram, Lalchand, and Babulal and Gulabi had sustained injuries. Malaram died as a result of the injuries sustained by him. 7. That has been emphasised by the learned counsel for the appellant is that the trial court itself observed that the prosecution witnesses did not speak about the true facts regarding the origin of the fight and that there was only one-sided version of the incident. It was also urged that it was established in the case that Raghunath appellant. Rameshwar and Chouthu had also sustained injuries, rs are mentioned in the injury-reports (Exs.D. 12, D. 13 and D. 14), during the incident, and the prosecution has not explained at all the injuries stained by Raghunath appellant and his aforesaid two associates. He. therefore, contended that this Court should draw either of the inferences that the prosecution has suppressed the genesis and the origin of the offences; that the prosecution witnesses are unreliable, because, they are lying on material aspects of the case; and further that the defence-version of the incident is rendered highly probable, so as to cast doubt on the correctness and truthfulness of the prosecution case. It is urged that the accused, in these circumstances, had the right of private-defence of their persons, and they could not have been convicted for offence under section 326, IPC. The learned counsel also pointed out certain contradictions in the prosecution evidence. It is urged that the accused, in these circumstances, had the right of private-defence of their persons, and they could not have been convicted for offence under section 326, IPC. The learned counsel also pointed out certain contradictions in the prosecution evidence. The learned Public Prosecutor urged that there is consistent evidence of the prosecution witness that it was Raghunath appellant, who had inflicted the fatal blow on the head of Malaram (deceased) and that he should be convicted under section 302, IPC. 8. The learned Sessions Judge, Sikar, did not believe the statement of Smt. Kaushalya PW 7 that she had sustained injuries at the hands of Raghunath, in the incident, in the field of Chander, which had taken place a few days prior to this incident. He has observed that the statement of Smt. Kaushalya that she had sustained various injuries, including uprooting of her tooth, was exaggerated. However, the Sessions Judge found that some incident had taken place in the field of Chander, in which, there were altercations between Raghunath and Smt. Kaushalya. He also held that a Panchayai was convened of this incident, with Smt. Kaushalya, and some fine was imposed on Raghunath. The Sessions Judge did not believe the defence-version that one more incident had taken place one day prior to this incident, wherein, Babulal, Lalchand and Malaram are alleged to have gone to the field of Rameshwar, to beat him. The Sessions Judge held that Raghunath, Rameshwar and Chouthu had sustained the injuries, mentioned in the injury-reports (Exs. D. 12, D. 13 & D. 14). When the accused persons were arrested on Aug. 31, 78, they had injuries on their persons, and those injuries were not explained by the prosecution. Thus, there was an incomplete investigation, and there was reason to hold that the three accused persons had sustained the injuries during the incident. It was also held by the Sessions Judge that it could not be held that the assailants had the intention to murder Malaram for the reason that initially, only they had rushed behind Lalchand and Babulal, and axe-blow from the reverse side was inflicted to Babulal. This was inconsistent with an intention to murder. Malaram had come later on, and he was not present at the time when the assailants had rushed behind Lalchand and Babulal. This was inconsistent with an intention to murder. Malaram had come later on, and he was not present at the time when the assailants had rushed behind Lalchand and Babulal. On this basis, it was found that the assailants did not have an intention to murder anyone. The Sessions Judge noticed certain contradictions regarding the person who had inflicted the injury from the reverse side of axe on Lalchand PW 2. The Sessions Judge also doubted the correctness of the prosecution case that Gulabi had fracture. However, the Sessions Judge held that it was amply proved that it was Raghunath appellant, who had inflicted an axe-blow on the head of Malaram, which resulted in the death of the latter. The not findings of the Sessions Judge, Sikar, were that the entire evidence and circumstances went to show that both the sides had proceeded to fight with each other, and there was a free-fight. He, therefore, held that the question of guilt had to be decided on the basis of the injury which had been inflicted by each individual accused and not on the basis of vicarious liability. As Raghunath had inflicted the head-injury on Malaram (deceased), he was held guilty of offence under section 326, IPC. Chouthu had inflicted simple injury, and therefore, he was held guilty of offence under section 323, IPC. Thus, according to the Sessions Judge, Sikar, it was a case of free-fight, where both the sides were armed and had proceeded to fight with each other. He, therefore, ruled out the theory of right of private-defence set up by appellant Rameshwar and Chouthu. 9. We have carefully gone through the reasonings given by the Sessions Judge Sikar, and also through the evidence, adduced in the case, both by the prosecution as well as by the accused. We agree with the Sessions Judge that an incident had occurred on the field of Chander, Smt. Kaushalya, on Aug. 26, 78. The cattles of Raghunath which were being grazed by his son Shanker, had entered into the field of Chander. Smt. Kaushalya was on the field; and there were some altercations between Smt. Kaushalya and Shanker. Smt. Kaushalya had turned out the cattles. Shanker went to his father Raghunath and there was some incident on the field. 26, 78. The cattles of Raghunath which were being grazed by his son Shanker, had entered into the field of Chander. Smt. Kaushalya was on the field; and there were some altercations between Smt. Kaushalya and Shanker. Smt. Kaushalya had turned out the cattles. Shanker went to his father Raghunath and there was some incident on the field. It is not established by the prosecution that any tooth of Smt. Kaushalya was uprooted during that incident, because, in her cross-examination, Smt. Kaushaiya admitted that her tooth was in her mouth. Anyway, some incident had, no doubt, occurred on the field of Chander. Smt Kaushalya had informed of this incident to Bhagirath, Ganpat and his brother Sarvan. Apart from the evidence of the injured, there is evidence of Shankarlal PW 15 that on a complaint by Sarvan, an informal Panchayat-Meeting was convened. Shankarlal was Saipanch of Gram Panchayat-Kalyanpura. Prithvisingb PW8 was also present in the Panchayat-Meeting; and the evidence of both Shankarlal and Prithvisingh is that a fine of Rs. 51/- was imposed by the Panchayat, on P.aghunath. This was the background on which the incident took place. As has already been stated, Smt. Kaushalya was related to Ganpat PW l, as she was Ganpats brother's daughter. Malaram (deceased) and Lalchand injured were sons of Ganpat; while, Gulabi was daughter of Ganpat. The persons accused in the case were also related to each other, as Raghunath and Surji were both real brothers; Rameshwar was son of Raghunath; and Chouthu was son of Surja. 10. Exs. P.25, 27 & 28 are the arrest-memos of Raghunath, Chouthu and Rameshwar. They were arrested by the police on Aug. 31, 78. In the arrest-memos, it is mentioned by the investigating officer Nazir Ahmed PW22 that Raghunath had a sign of an injury on his left shoulder; Chouthu also had two injuries on his body; and so also Rameshwar, had two injuries on his person. In his cross-examination, Nazir Ahmed has said that Malaram had inflicted these injuries on the three accused persons, in self-defence. This fact was not mentioned by the Officer-in-Charge of the police station, in the police-report. Nazir Ahmed stated this fact only when he was confronted with the injury-reports (Exs.D.12 D.13 & D. 14) of Rameshwar, Raghunath and Chouthu, in his cross-examination. This fact was not mentioned by the Officer-in-Charge of the police station, in the police-report. Nazir Ahmed stated this fact only when he was confronted with the injury-reports (Exs.D.12 D.13 & D. 14) of Rameshwar, Raghunath and Chouthu, in his cross-examination. So far as the prosecution witnesses are concerned, including the injured witnesses, they have not explained in any way the injuries on the bodies of Raghunath, Rameshwar and Chouthu. Lalchand PW2 disowned portions A to B and C to D of his police-statement (Ex.D.l), wherein, it has been recoiled that Malaram had inflicted the injuries to defend himself. Similarly, Babulal PW3 disowned the same statement in portion marked A to B in his police-statement (Ex.D.2). The same is the state of affairs in relation to Gulabi. Thus, none of the injured witnesses stated that Malaram had inflicted the injuries on Raghunath, Rameshwar and Chouthu, in self-defence. On the contrary, they disowned their police-statements in this respect. From the side of the defence, Dr. Tansukh Singh was examined as DW2; and he has proved the injuries sustained by Rameshwar, Raghunath and Chouthu; and the injury-reports (Ex.D.12, D.13 & D.14). 11. A classic case on the point is in Laxman Singh v. State of Bihar ( AIR 1976 SC 2263 ), i n which, the judgment was delivered for the Court, by Murtaza Fazai Ali, J. The learned Judge observed in that case that no independent witness had been examined by the prosecution to support the participation of the appellants in the assault. He also found that the prosecution witnesses had given parrot-like version going under a conspiracy to depose one set of facts and one set of facts only. In view of the nature of the incident, the Supreme Court accepted the contention made on behalf of the accused, particularly, taking the entire picture of the narrative, given by the witnesses that the witnesses had tried to implicate the accused falsely. His Lordship considered the injuries that were inflicted on the person of accused Darshan Singh in that case and referred to the decision in Mohar Rai v. State of Bihar ( AIR 1968 SC 1281 ), which laid down that where the prosecution fails to explain the injuries on the accused, the following results follow:- (i) that the evidence of the prosecution witness witnesses is untrue; and (ii) that the injury probabilised the plea taken by the deceased. The learned Judge also referred to the decision in State of Gujarat v. Bai Fatima ( AIR 1975 SC 1478 ). and held that in a murder-case, non-explanation of injuries, sustaned by the accused, at or about the time of the occurrence, is a very important circumstance, from which, the Court can draw the following inferences:- (i) that the prosecution has suppressed the genesis and the origin of the occurrence, and has thus not resented the true version; (ii) 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, their evidence is unreliable; and (iii) that in case there is a defence-version which explains the injuries on the person of the accused, it is rendered probable, so as to throw doubt on the prosecution case. 12. In a latter case. Jagdish v. State of Rajasthan ( AIR 1979 SC 1010 . at page-1011 ), it was observed that before the obligation is placed on the prosecution to explain the injuries on the body of the accused, injuries must be very serious or servere and not superficial and it must be shown that those injuries must have been caused at the time of the occurrence in question. 13. His Lordship Datta, J., in Harikishan Singh v. State of Bihar ( AIR 1988 SC 863 ), observed : "All the decisions of this Court which have been referred to and discussed above, show that when the Court has believed the prosecute on witnesses as convincing and trustworthy, the Court overruled the contention of the accused that as the prosecution has failed to explain the injuries sustained by the accused in the same occurrence, the prosecution case should be disbelieved and the accused should be acquitted. Thus, it is not the law or invariable rule that whenever the accused sustains an injury in the same occurrence the prosecution has to explain the injuries, failure of which will mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence." 14. Reference may also be made to the decision in Kartar Singh v. State of Punjab ( AIR 1988 SC 2122 ), wherein, it has been held that the manner in which the incident took place, was not clearly established by the prosecution, which and therefore, the defence cannot be rejected. Reference may also be made to the decision in Kartar Singh v. State of Punjab ( AIR 1988 SC 2122 ), wherein, it has been held that the manner in which the incident took place, was not clearly established by the prosecution, which and therefore, the defence cannot be rejected. It was also found that the injuries on the person of the appellant and other accused, had not been properly explained.14A. It may be mentioned that in the present case, it is not that the three accused had only sustained superficial injuries. The injury-report (Ex. D. 12) of Rameshwar would go to shew that he bad sustained two incised wounds over left deltoid and left scapula region. Similarly, Ex. D. 14 would Chouthu had sustained two incised wounds on left mid thigh and deltoid region. Injuries on Rameshwar and Chouthu, though simple, were caused by sharp-edged light weapon. Raghunath had sustained lacerated wound over his left deltoid, by a blunt weapon. Thus, it would be seen that blunt and sharp edged weapons were used in inflicting injuries on these three accused persons. Amongst the injured from the complainant side, Babulal had only two contusions; and Lalchand had a contusion and an abrasion. Gulabi had sustained three contusions; and on X-Ray examination, it was found that she had fracture of posterior part of 9th and 10th rib on right side of her chest. It was only Malaram (deceased), who had received the fatal blow in the, shaps of incised wound, on his head. The other incised wound was on the left shoulder; and a lacerated wound on left heel. 15. As already stated, the injured witnesses have denied in their statements that Malaram had inflicted these injuries in his own self-defence. Thus, there is no explanation from the side of the prosecution, how the three accused sustained the injuries. It is also pertinent to note that the Sessions Judge, Sikar, has given a finding that it is not a case where either side was an aggressor or that other side was a victim. He. therefore. ruled out the theory of private-defence for either side. As a matter of fact, the Sessions Judge reconstructed the prosecution case by holding that it was a case of free-fight. The prosecution had not at all set up a case of free-fight, as their case; and it is not for courts to reconstruct the prosecution case. He. therefore. ruled out the theory of private-defence for either side. As a matter of fact, the Sessions Judge reconstructed the prosecution case by holding that it was a case of free-fight. The prosecution had not at all set up a case of free-fight, as their case; and it is not for courts to reconstruct the prosecution case. The Sessions Judge has not believed the presence of Bhagirath PW 5. at the time of the incident. The incident took place near the houses of Ganesh Meena, Gheesa Ahir and Banna Ram. None of them has been examined. The only evidence to support the prosecution case is that of the injured persons, who are related to each other and were inimical to the accused on account of the earlier incident on the filed of Chander and non-payment of fine, levied brought by Panchayat upon Raghunath. Any enmity is a double-weapon, and either side could be an aggressor. In such circumstances, it was necessary for the prosecution to have explained the injuries sustained by Raghunath, Rameshwar and Chouthu, during the same occurrence. As the prosecution has failed totally to give any explanation for the injuries, sustained by Raghunath, Rameshwar and Chouthu, it is clear that the prosecution has suppressed the genesis and the origin of the occurrence, and thus not presented the true version of the incident. It can further be inferred that the injured witnesses are lying on most material point, and their is unreliable. The accused have set up a theory of right of private-defence, and it is probabilised in the case, so as to throw a doubt in the correctness of the prosecution case. It was not open to the Sessions Judge to reconstruct the prosecution story by making out a case of free-fight, and on that basis to convict Raghunath for offence under section 326, IPC. The appellant is, therefore, entitled to benefit of doubt and acquittal, of the offence. There arises, therefore, no question of convicting him for offence under section 302, IPC, or in the alternative, for offence under section 302/149, IPC, or for any other offence. 16. We, therefore, allow this appeal; and set aside the conviction and sentence of Raghunath appellant under section 329, IPC, recorded by the Sessions Judge, Sikar, by his judgment dated Mar. 7, 79. Raghunath is on bail. 16. We, therefore, allow this appeal; and set aside the conviction and sentence of Raghunath appellant under section 329, IPC, recorded by the Sessions Judge, Sikar, by his judgment dated Mar. 7, 79. Raghunath is on bail. His personal and surety bonds are hereby cancelled; and he need not surrender.Appeal allowed. *******