JUDGMENT 1. - This appeal arises out of a judgment whereby appellant, Ram Phal Meena has been found guilty by Sessions Judge, Sawai Madhopur Camp at Gangapur City, for offence under Section 307. IPC. and sentenced to undergo five years rigorous imprisonment with a fine of Rs. 500/- (in default, R.I. for 2 months)Briefs facts- 2. A report (Ex. P. 1) bearing date 6th March, 1980, was lodged Rang Lal s/o Hurbux, for an incident said to have taken place on 5th March, 1980, police station Todabhim on 7.3.1980 at 10.30 a.m. F.I.R. No. 22/80 (Ex. P.9) was chalked out and the case was registered by the police and then, investigation commenced. It had been alleged in the report that on the day of incident, the informant started his motor engine fixed at a well known as 'Bharnawala' so as to irrigate his field, that Siya (accused) also started an electric motor fixed at well known as Aamli wala' which was one field away from his field; that, accused Siya connected his water channel with that of the informant, thereby, the water flowing from both the aforesaid wells was diverted to the field of Siya-to which, the informant protested but, Siya inflicted lathi blow on his hand; and thereafter, the informant went to his other field but, Siya alongwith other accused persons, Ramphal, Shrwan, Manohari, Harlal, Suwa, Shriohal, Kampuri and Rampati, duly armed with weapons and after forming an unlawful assembly, came to the field where the informant was standing. According to the report, common object of the unlawful assembly was to commit murder of the persons from the complainant side; and in order to achieve their object, the accused persons opened attack upon the informant and started beating. Ramphal, present appellant, is said to have inflicted 'gandasi' blow on the head of Ramnarain who had tried to intervene alongwith Khilari & Moti. in order to save the informant. Ramnarain is said to have sustained an injury on his hand by lathi blow. It had also been alleged in the report that the aforesaid accused persons had surrounded Khilari & Moti and started inflicting lathi blows on these two persons causing various injuries. It is pertinent to state that the aforesaid report (Ex. in order to save the informant. Ramnarain is said to have sustained an injury on his hand by lathi blow. It had also been alleged in the report that the aforesaid accused persons had surrounded Khilari & Moti and started inflicting lathi blows on these two persons causing various injuries. It is pertinent to state that the aforesaid report (Ex. P. 1) was handed over by one, Surajmal on 7-3-80 at 10.30 a.m. whereas it bears signature of Ranglal (informant) and the date as 6-3-1980, as is apparent from the endorsement made on it by the police. 3. A report (Ex. D. 5) was also lodged from the side of the accused party at the same police station. In that report it had been stated that on 5-3-1980 at about 5 p.m. Smt. Bhoti w/o Ranglal and Rajanti, both were cutting the wheat crop at the field of Mst. Narpo in order to commit theft of wheat crop to which, Mst. Narpo persuaded Mst. Rajanti & Ranglal not to cut the wheat crop but, Ranglal & Rajanti hurled abuses and called there ower persons thereby, Gordhan Khilari, Ramnarain alias Kedia, Natthu, Ramswarup & Lachhi etc. reached there duly armed with weapons like, 'Barchhi', axe, & gun; and that they caused injuries on the persons of Msi. Narpo & Ramphal who were then admitted in the hospital. 4. Upon a careful reading of the contents narrated in the aforesaid two reports (Ex. P. 1 & D. 5), it is clear that in both the reports, the genesis of the offence is different. According to Ex P. 1, the occurrence took place when the water channel was diverted to the field of accuse, Siya. whereas the occurrence stated in report (Ex. D. 5) took place because, Mst. Narpo & Rajanti were cutting wheat crop of Ranglal with an intent to thieve the crop, and upon protest by Ranglal, the incident had happened. Therefore, from these different versions, it can never be inferred that both the parties had any knowledge that the water channel would be diverted into the field of the accused or that the cutting of wheat crop would be resisted by its owner, and therefore, no inference can be drawn that the party had gone to the scene of occurrence with intention to committee culpable offence. 5. Upon registration of the case on the basis of report (Ex. 5. Upon registration of the case on the basis of report (Ex. P. 1) and after completion of the investigation, challan was filed against eight accused persons including the present appellant, against whom the charges were framed for the offences under Sections 147, 323, 324 & 307/149, IPC. but all the accused pleaded not guilty and claimed for trial. The prosecution examined nine witnesses. Accused persons were examined under Section 313, Cr.P.C. They produced two witnesses in their defence. After hearing both the parties, the learned trial Judge acquitted eight accused persons but convicted the present appellant under Section 307, IPC and passed the sentence as narrated at the very there shold of this judgment. The present appellant was acquitted under Section 147, IPC. 6. According to the trial Court, it was a case of free-fight and that being so, it acquitted the accused persons for their individual acts but convicted the present appellant for his act holding that he inflicted injury on the person of injured Ramnarain by "gandasi' which landed on his head. Dr. Bhardwaj (PW 6) stated the head injury as dangerous to life because according to him, injury No. 1 on the head could have been sufficient in the ordinary course of nature to cause death of injured Ramnarain. Therefore, the trial court found the present appellant guilty of offence under Section 307, IPC. 7. First contention on behalf of the appellant was that the finding arrived at by the trial Court that it was a case of free-fight, is based on no evidence because, it was nobody's case and thus, the trial Court erred inventing a new story. Secondly. Shri N.L. Tibrewal, learned Advocate for the appellant, urged that the prosecution witnesses were held unreliable by the trial Court and in any case, when they have been disbelieved on material points qua co-accused who have been acquitted, the conviction of the present appellant under Section 307, IPC, could hardly be sustained without any independent corroboration; and that apart, the trial Court, itself, has disbelieved major part of the prosecution case about the origin and manner in which the occurrence took place, and on that basis, out of nine accused persons, eight have been acquitted by it. 8. 8. Third contention by the appellant was that Ramphal (accused-appellant) also sustained a number of injuries including one on the head one, in addition to a fracture and that being so, the members of the complainant party can also be held responsible as aggressor as according to him, they opened attack first on the accused persons. Shri Tibrewal added that even if the prosecution case were accepted that the accused caused injury on the person of Ramnarain then it can be inferred that he did it in exercise of right of his private defence of person and property. But the trial Court, Shri Tibrewal urged, completely ignored this important aspect of the case. 9. Shri Tibrewal also contended that the report (Ex. P.l) was not true version of the incident rather parrot version given out at the advice of Shri Amar Singh Advocate, as has been admitted by the informant, himself, and fortified from the fact that the report was written on 6.3.1980 as it bears the date 6.3.1980 and it was submitted at the police station on 7.3.1980. In this view of the matter. Shri Tibrewal added that there is inordinate delay in lodging the report of which no explanation has come forward from the prosecution side; and that, F.I.R. (Ex.P.l) was sent in the concerned Court after inordinate delay. Shri Tibrewal stressed shat the aforesaid contention is sufficient to discard the prosecution story on the basis of which the present appellant has been convicted, in a perfunctory manner, and, therefore, the appellant is liable to be acquitted on this ground alone. 10. Lastly. Shri Tibrewal contended that the accused persons have given probable version by leading evidence on defence theory. Injury report (Ex.D. 7 of Mst. 10. Lastly. Shri Tibrewal contended that the accused persons have given probable version by leading evidence on defence theory. Injury report (Ex.D. 7 of Mst. Nirpo, D. 8 of Ramphal) and site plan (Ex D. 6) were also filed by the accused persons but the trial Court, Shri Tibrewal urged, did not at all considered these documents so also the defence version and that apart, no specific finding has been given by the trial Court, while contrarily, the trial court, itself, admitted in para 22 of its judgment that Ramphal sustained injuries but the prosecution witnesses denied it and, on the basis of this finding, it observed that the prosecution witnesses cannot be held to be wholly reliable, inasmuch as it further observed that the prosecution witnesses were interested and therefore, their statements were to be scanned cautiously. 11. Learned Public Prosecutor opposed the appeal and supported the judgment of the trial Court. 12. Learned trial Court observed that 12 persons from the complainant side and nine from the accused side, sustained injuries which are of the nature by which it can be inferred that both the parties were fully adament to fight and they reached the place of incident after having fully prepared to fight. 13. After having considered the contention of the parties and gone through the relevant record apart from the findings arrived at by the trial Court, I am of the opinion that the prosecution has completely failed to explain the injuries sustained on the persons of the accused side, and non-explanation is very much fatal to the prosecution rather a serious infirmity which casts doubt on the origin of the fight and prosecution case, itself in which it was arisen. Moreover, the trial court was not justified in holding that this was a case of free fight, because no such case was pleaded by either of the parties before the trial Court and the prosecution did not come with true version about the origin of the fight and manner in which the incident had happened. It was the admitted case of the prosecution that the parties were drawing water from different walls, referred to above. It was the admitted case of the prosecution that the parties were drawing water from different walls, referred to above. But the prosecution failed to produce any documentary evidence about Khatedari rights or those wells known as 'Bharnawala' & Alamshahr Aamliwala', on the basis of which it could have been said that the act of the accused in diverting the flow of water channel was not justified. Both the parties in their reports alleged that all the persons indulged in the incident were present at the scene of occurrence rather they in their reports alleged that most of the persons came at the sence of occurrence on the cause given out by the persons who were initially present at the scene of occurrence. In these circumstances, it cannot therefore be inferred that the parties had assembled at the scene of occurrence for trial of their strength. 14. In Subhan Khan v. State of Rajasthan (1970 RLW p. 604) , this Court observed as under:- "The conception of a free fight is that both the parties mean to fight from the very beginning and they go out for a fight and there is a pitched battle. What is essential is the going out of both the parties for a fight. In such a case, of course, it is immaterial as to who attacks first and who defends, because then it would be more or less a matter of strategy thought of by each party. But in a free fight there is an express or an implied challenge by one party to the other and they go ahead with the determination to settle their scores by use of force and in this, they care the least for the authorities of law. In other words, none is in a mood to approach the lawful authorities for address before hand. In cases where the evidence is part is an on both sides and quite a large number of persons are injured on either side, there is bound to be temptation for the prosecution to come forward with the story of a free fight, but it becomes the duty of the Court to make an effect to untie the knot, if this could be done, and not to cut it roughly straight away." 15. I may reiterate that in the case at hand, it has not been proved beyond reasonable doubt that the parties were mean to fight from the very inception and they went out for a fight and there was a pitched battle. In the instant case, the report was written on 6.3.1980 but was given at the police station on 7.3.1980, for the incident said to have happened on 5.3.1980. No explanation for such an inordinate delay has been given in the reports though it has been admitted by the trial Court but it has failed to give any finding on the question as to whether non-explanation of delay was fatal to the prosecution or not precisely, the trial Court ignored significant aspect of the case. Similarly the prosecution failed to explain as to why the report was despatched to the concerned Court after a great delay. On 15.3.1980 when the report was admitted to the police on 7.3.1980 for the incident of 5 3.1980. This aspect of the case though was within the knowledge of the trial court but it failed to give any finding on this point. In this view of the matter, the trial Court did not decide the case in its right perspective rather it can be said that the trial Court eschewed significant features of the case which casts a reasonable doubt on the prosecution case. Thus, this delay apart from its non-explanation raises a presumption that the reports was fibred after due deliberation and legal assistance, and it creates doubt, the benefit of which must go to the accused. 16. All the accused persons are alleged to have participated in the beating and according to the prosecution none of them sustained injuries. Contrarily, from the material as well as the findings of the trial Court, evidently, Smt. Nirpo (DW 1) and the present appellant sustained simple & grievous injuries of which explanation by the prosecution is absent the benefit of which also goes to the accused. 17. Looking to the facts and circumstances stated in the reports of both the parties as well as in the evidence on record, it can be said that the trial Court, itself constructed a new case of free fight. 17. Looking to the facts and circumstances stated in the reports of both the parties as well as in the evidence on record, it can be said that the trial Court, itself constructed a new case of free fight. In view of the principles laid down by their Lordships of the Supreme Court in AIR 1976 SC p. 977, such a reconstruction of a new case by the trial Court cannot be sustained. 18. As stated earlier, from the side of the accused party, one lady and the appellant sustained injuries while from the complainant side, all the injuries sustained by other persons except Ram Narain are superficial. From the nature of injuries on the persons of the complainant side while ten accused persons are alleged to have participated with determination and trial of strength, the existence of injuries would have been much more, inasmuch as it is nobody's case that there was any pre-determination for trial and strength. 19. As is well laid down by the Supreme Court in catena of decisions including that reported in AIR 1976 SC p. 966 & AIR 1980 SC 660 , the prosecution is required to prove its case beyond a reasonable doubt and the accused can discharge his onus by establishing a mere preponderance of probability. The present appellant sustained grievous injuries on his head which was stated by the doctor to have been caused by a sharp weapon. Thus, it is a case where the appellant had succeeded in establishing by a preponderance of probability that the complainant party was poised for imminent attack on the appellant with sharp weapon when the latter assaulted blows resulting in injuries on the person of Ram Narain. In such a situation, the appellant had a reasonable and immidiate apprehension that he would suffer death or grievous hurt if he did not assault at the injured Ramnarain. Thus, the injuries on Ramnarain were in all probability caused by the appellant in the exercise of his tight of private defence. The defence version is probablised by the counter report lodged in earlier point of time. That apart, from site plan (Ex.D 6) as well as from the statement of Smt. Nirpo (DW 2), the investigating officer admitted that in Ex.D 6, there are signs of cutting wheat crop. Thus, the prosecution case about origin of the fight stands falsified. The defence version is probablised by the counter report lodged in earlier point of time. That apart, from site plan (Ex.D 6) as well as from the statement of Smt. Nirpo (DW 2), the investigating officer admitted that in Ex.D 6, there are signs of cutting wheat crop. Thus, the prosecution case about origin of the fight stands falsified. The prosecution failed in its duty to eliminate genuine doubt about guilt of the accused. And, the present appellant is entitled to the benefit of exception thereby deserves to be acquitted. In addition, the defence version not only stands probabilised but proved from the medico legal reports and site plan (Ex.D. 6). 20. Next salient feature of the prosecution case is that Ranglal (informant) went towards 'Naya Kunwa' where the witnesses are said to have come and were assaulted when they tried to rescue the informant. As against this, all the prosecution witnesses gave out the place of incident where the two water channels were connected which is said to be the field of one Brij Lal where the coriander crop was growing and which is said to have been damaged on account of the incident. By these contradictions, the prosecution case itself stands disproved as is evident from its evidence and site plan (Ex.P. 10) which state different story, and does not show signs of damages to the crop. 21. There are material contradictions as to who had connected water channels inasmuch as in Ex.P. 1 it had been stated that it was co-accused, Siya. The story of taking water and connecting water channels stands falsified and disproved by the contradictions and circumstances apparent in the evidence on record on the basis of which other co-accused were set free by the trial court, itself. 22. The site plan had been prepared just after the incident but in that it has nowhere been shown that in the field of other accused or that of the complainant, the water was being irrigated. According to the prosecution, the occurrence took place when one of the accused diverted the flow of water into his field. In such a situation it was necessary for the investigating officer to show that the field of the accused was being irrigated by the disputed water channel. According to the prosecution, the occurrence took place when one of the accused diverted the flow of water into his field. In such a situation it was necessary for the investigating officer to show that the field of the accused was being irrigated by the disputed water channel. In these circumstances, the defence version is probable because, in site plan (Ex.P. 6) the damage of wheat crop has been shown and according to the defence case as is apparent in counter report (Ex.D. 5) and defence witnesses' statements, the complainant persons were cutting the crop in order to thieve, and the act of the complainant party was protested by the accused persons which resulted in pitched battle at the field as shown in Ex.D. 6. 23. It is well settled that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence, if any. Nor can the court, on its own make out a new case for the prosecution and convict the accused on that basis. The prosecution has deliberately concealed to disclose the circumstances which preceded the infliction of injuries to injured persons. Notwithstanding the finding that to a large extent the prosecution story was false that is why the eight accused persons out of nine were acquitted by the trial Court, the trial Court worked out the conclusion that it was a case of free fight. In reaching this conclusion, the trial court was influenced by the fact that the accused persons sustained injuries and had not come with the true version. It appears to me that the approach of the trial court in reconstructing a story different from the one propounded by the prosecution and then convicting the appellant on that basis was clearly erroneous. 24. Thus, from whatever angle the matter may be looked at, the prosecution had miserably failed to make out a case against the appellant also When the substratum of the evidence given by the prosecution was found to be false, the only prudent course, in the circumstances of this case, left to the Court was to throw out the prosecution case in its entirety against. 25. 25. For the reasons stated above, this appeal is allowed; the judgment of the trial Court convicting the present appellant is set aside; and the present appellant is acquitted of the offence under Section 307, IPC. He is on bail. His bail bonds stand cancelled. He need not surrender. The record of the trial court be returned back forthwith.Appeal allowed. *******