JUDGMENT 1. - Appellant, Durgalal was tried by learned Sessions Judge, Tonk for offence under Sections 447, 302 and alternatively under Section 302 read with 34 IPC, 323. IPC and alternatively for offence under Section 323 IPC read with 34 IPC along with other co-accused Nand Lal, Bhanwarlal and Shreenarain. By his judgment dated 30.10.1982 he acquitted Shreenarain and Nand Lal of all the charges and acquitted Bhanwarlal of offence under Sections 447, 302 and 302 read with 74 IPC. He acquitted Durgalal of offence under Sections 447, 302 and 302 read with 34 IPC. However, he convicted Durgalal of offence under Section 323 and 304 part II. IPC and Bhanwarlal for offence under section 323, IPC. Bhanwarlal was sentenced to under go rigorous imprisonment for one year and to pay fine of Rs. 200/- and in default to under go further rigorous imprisonment of one month for an offence under section 323 IPC. Appellant Durgalal was sentenced to under go rigorous imprisonment for 4 years and to pay fine of Rs. 500/- for offence under Sections 403 part II, IPC. In default of payment of fine he was sentenced to under go simple imprisonment for three months. For offence under Section 323, IPC he was sentenced to under go rigorous imprisonment for one year and to pay Rs. 200/- and in default of payment of fine to under go further simple imprisonment for one month. Aggrieved by this, Durgalal has come in appeal. It may be stated that Bhanwarlal has not appealed against his conviction and sentence. 2. In a nut shell the prosecution story as found established by the learned Sessions Judge is that on 28-8-198J at about 8.30 a. m. the appellant Durgalal along with co-accused Shreenarain, Nandlal and Bhanwarlal went to plough the field known as "Dagarwali Zamin" situated in village Mauga Karwada. Shree narain and Nandlal started ploughing the field while Durgalal and Bharwarlal stood guard with lathies in their hands. Deceased Ram Narain, PW-1 Gopi and PW-3 Bhanwarlal were close relations of the accused persons and they also had a share in the said field. Shree narain and Nandlal started ploughing the field while Durgalal and Bharwarlal stood guard with lathies in their hands. Deceased Ram Narain, PW-1 Gopi and PW-3 Bhanwarlal were close relations of the accused persons and they also had a share in the said field. This land was undivided between the parties, however, deceased Ram Narain, PW-1 Gopi, PW-3 Bhanwarlal were unhappy with the action of the appellant and his companions and they went to the spot to remonstrate with the appellant and his companions and to ask them that they should not plough the land. It appears that some sort of scuffle took place between Ram Narain deceased and Shreenarain accused. An assault took place on Ram Narain and he died as a result thereof. The prosecution story, however found established by the learned trial Judge was that none of the accused persons intended to cause death of deceased Ram Narain. The learned Judge, found that the accused Shreenarain and Nand Lal did not commit any assault on deceased Ram Narain and his companions. However, he was of the view that the appellant Durgalal caused a lathi blow on the head of deceased Ram Narain and he further caused some simple injuries to the deceased. He was of the view that Bhanwarlal caused simple injuries to the deceased and his companions. Upon such findings he convicted and sentenced the appellant as stated above. 3. In the present appeal, the learned counsel for the appellant submits that the learned trial court has not correctly appreciated the evidence in this case. According to him, the appellant and his companions had a right to plough the field and they went there in exercise of such right. The trouble started because the deceased Ram Narain and his companions did not permit the appellants companions to plough the field and scuffle took place between Shreenarain and Ram Narain. He submits that from the prosecution evidence itself, it is abundantly proved that first of all the deceased Ram Narain caused a lathi blow to Shreenarain and thereupon in exercise of right of private defence of person and property an assault was made on the deceased. He submits that the evidence of the prosecution witnesses is vague and discrepant and it is difficult to say that it was the present appellant Durgalal who had caused injuries to deceased Ram Narain on the head. He submits that the evidence of the prosecution witnesses is vague and discrepant and it is difficult to say that it was the present appellant Durgalal who had caused injuries to deceased Ram Narain on the head. The prosecution story shows that Bharwarlal had also assaulted Ram Narain by lathi on the head. Hence, it was difficult to say as to who was responsible for the fatal blow/blows on the head of the deceased. 4. He further submits that the medical evidence goes to show that there were as many as 3 injuries on the head. The prosecution has not shown which of the three injuries had been caused by the present appellant. He submits that there was no difference between the case of the present appellant and that of accused Bhanwarlal and the learned trial Judge erred in holding the appellant guilty of offence under section 304 part II, I. P. C. 5. He submits that in this case the initial prosecution version as disclosed by the F. I. R. did not at all state that any injury on the head of Ram Narain had been caused by the present appellant. The eye witnesses have prevaricated and have modulated the prosecution case so as to apportion the blame of fatal assault upon this appellant. He submits that even according to the learned Trial Judge the prosecution witnesses were not wholly reliable and therefore, their testimony, without independent corroboration, should not have been used to convict the present appellant for offence under Section 304, Part II, IPC or Section 323 IPC. He submits that in the facts and circumstances of the case the appellant deserves to be acquitted of both the charges. 6. The learned Public Prosecutor, vehemently opposes the appeal and he submits that the learned trial court has sifted grain from chaff and has accepted such part of the prosecution evidence which inspires confidence. She submits that in the facts and circumstances of the case, the learned trial court did not commit any error in recording conviction of the appellant for two charges for which he has been sentenced as stated above.6A. I may, here state that this is not in dispute before me that an incident did take place on 28-8-1981 at 8.30 a. m. in the field in question and in this incident Ram Narain received injuries narrated below : 1. I may, here state that this is not in dispute before me that an incident did take place on 28-8-1981 at 8.30 a. m. in the field in question and in this incident Ram Narain received injuries narrated below : 1. Lacerated wound 3" X 1/2" upto deep bone on right side of parietal area. 2. Lacerated wound 2" X 1/2" upto deep bone parietal area. on left 3. Bruise 2" X 1/2" on right forearm 4. Bruise 2" X 1/2" on left arm 5. Bleeding from nose and left ear. 6. Abrasions on body multiple in numbers. 7. Lacerated wound 2 X 1/2" upto bone on frontal area. Dr. Vimal Kumar Jain found that there were fracture of parietal and frontal bones of the deceased. He further found dura matter was torn. He also found extra dural haemorrhage. He found that the left arm of the deceased had been fractured. The injuries were antemorem in nature and were collectively sufficient to cause death of the doceased. He admitted that taken individually the injuries were not sufficient to cause the death of the deceased. 7. I have carefully considered the rival contentions and have perused the record of the learned (rial court An outstanding feature of the case is that the land in dispute, as held by the learned trial Judge, jointly belonged to deceased Ram Narain, accused Shreenarain and Laxminarain father of the accused Nanda. No partition had taken place with regard to this land, as was admitted by PW-1 Gopilal. It was on this basis that the learned trial Judge acquitted all the accused persons of offence under Section 447, IPC. Now, if the accused persons including the present appellant had gone to the disputed field to plough the same, it cannot be said that they had gone there with a view to commit any offence. Their going to the field with a view to plough the same was a lawful act and the trouble started because they were prevented from ploughing the same. 8. It is significant that according to Gopilal, be along with his uncle Ram Narain (deceased) and nephew Bhanwarlal had gone to the field because Bhanwarlal Dhakar had informed that Shreenarain and others (accused-party) were taking possession of the field in dispute. It is in evidence of Gopilal that when they reached the field, Shreenarain and Nandlal were already ploughing the same. It is in evidence of Gopilal that when they reached the field, Shreenarain and Nandlal were already ploughing the same. Ram Narain asked the accused persons not to plough the field, upon which the incident took place. Gopilal has admitted in his cross-examination that he alongwith Ram Narain and Bhanwarlal resisted the ploughing of the field by standing against bullocks of the accused persons and it was then that deceased Ram Narain gave a lathi blow to accused Shreenarain, who is the father of present appellant Durgalal. This therefore, must have infuriated appellant Durgalal and his companions, upon which, this incident appears to have taken place. 9. To my mind, Gopilal and his companions including deceased Ram Narain had no business to give beating to Shreenarain and if they were aggrieved by the ploughing of the field by the appellant and his companions, they should have taken recourse to legal proceedings. 10. It is in view of the aforesaid genesis of the incident that the testimony of the prosecution witness has to be examined. It is significant to note that the F.I R. Exhibit-P-12 was lodged by none other then Gopilal himself, who claims to be an eye witness of the occurrence. The version given in the F.I.R. was to the effect that when Ram Narain and Bhanwarlal and Gopilal tried to prevent accused Shreenarain and Nandlal from p'oughmg the field, all the four accused persons at once attacked the complainant party and Shreenarain gave lathi blow on the head of his Kaka (uncle Ram Narain). The story, that Durgalal had given a lathi blow on the head of deceased Ram Narain was not stated in the F.I.R. at all. Gopilal in his examination-in-chief tried to build up a new case that when they reached and the trouble started then Durgalal gave lathi blow on the head of Ram Narain and then Bhanwarlal gave a lathi blow on the right hand of Ram Narain. Nandlal and Shteenarain also gave lathi blows on the head of Ram Narain. At this, he intervened, upon which Durgalal gave a lathi blow on the right shoulder and Bhanwarlal gave a lathi blow on his right leg. Accused Durgalal. Nand Lal and Bhanwarlal gave beating to his nephew and Bhanwarlal gave lathi below. Nandlal and Shteenarain also gave lathi blows on the head of Ram Narain. At this, he intervened, upon which Durgalal gave a lathi blow on the right shoulder and Bhanwarlal gave a lathi blow on his right leg. Accused Durgalal. Nand Lal and Bhanwarlal gave beating to his nephew and Bhanwarlal gave lathi below. The witness further stated that Ram Narain fell down and thereafter Durgalal and Bhanwarlal gave lathi blows to him with the result that he became unconscious. He was confronted with portion C to D of F.I.R. Exhibit-P-12 wherein he had stated that it was Shreenarain who had given lathi bow on the head of his uncle (Ramnarain). He has disowned this statement. I have already referred to his statement wherein he stated that Bhanwarlal and Durgalal gave lathi blow to Ram Narain on his head. In view of this statement, it is difficult to hold beyond doubt that the fatal blow on the head had been given by the appellant and not by Bhanwarlal. The possibility that the fatal blow on the head of Ramnarain might have been given by Bhanwarlal can not be reasonably excluded in this case. It is, but natural that if. Gopi Lal would have been seen Durgalal giving fatal lathi blow on the head of Ram Narain, he would have mentioned this fact specifically in the F.I.R. This important omission in the F.I.R. makes the statement of Gopilal nighly unreliable when during the trial he wants the court to believe that it was Durgalal who had given a lathi blow on the head of Ram Narain (deceased). 11. PW-3, Bhanwarlal in his examination-in-chief has stated that at the time of occurrence, he had gone to his field and then saw Shreenarain and Nandlal ploughing the field and Bhanwarlal and Durgalal standing on guard with lathies. At this, he went to house of Ram Narain (deceased) and informed of this, upon which this witness along with his uncle Gopilal and father Ram Narain went to the field. According to him, he and his companions were trying to prevent the accused persons from ploughing the field but the accused persons gave abuses to them upon which Ram Narain and Shreenarain grappled with each other and Durgalal gave a lathi bio * on the head of Ram Narain (deceased) upon which Ram Narain fell down. Thereafter Bhanwailal and Durgalal gave beating to Ram Narain. Thereafter Bhanwailal and Durgalal gave beating to Ram Narain. He has stated that Shreenarain did not give any beating to Ram Narain but he states that he was beaten by Nandlal, Bhanwarlal and Durgalal. In his cross examination he admits that Ram Narain and Shreenarain grappled with each other but he states that he did not know if Ram Narain had first of all given a lathi blow to Shreenarain. This is when Gopilal had already admitted, in his cross-examination that Ram Narain had in fact given a lathi blow to Shreenarain. From the statement of this witness also, it is difficult to arrive to the conclusion that Durgalal alone had caused the fatal blow to Ram Narain Rather it appears that both Durgalal and Bhanwarlal had given lathi blows on the head of Ram Narain and this must have been after Ram Narain had assaulted Shreenarain. PW-2 Kesharsingh has given the same story as given by Gopiram and be admitted that Shreenarain and Nanda were ploughing the field. Ram Naram prevented them from doing so and then Ram Narain assaulted Shreenarain. He has admitted that Ram Narain had been beaten by Bhanwarlal and Durgalal on the head with a result that Ram Narain fell down and then Bhanwai lal and Durgalal caused injuries to Ram Narain on his arms. Thus, the testimony of this witness also goes to show that Durgalal alone did net cause lathi blow on the head of Ram Narain but probability is that both Bhanwarlal and Durgalal has given lathi blows to Ram Narain on the head. PW 4 Dhanna has given the story that when Ram Narain tried to prevent Shreenarain. Nanda from ploughing the field Shreenarain gave a Parani blow on the head of Ram Narain with a result that Ram Narain fell down and thereafter, Durgalal and Bhanwarlal gave lathi blows to him In his cross-examination he stated that Shreenarain had given lathi blow to Ram Narain on the head. Further in his cross-examination, he refiled from the story and stated that all the injuries to Ram Narain had been caused by Durgalal and Bhanwarlal and no injuries had been caused to Ram Narain by Shreenarain and Nandlal. 12. PW-5 Sharwan is another witness. According to him he saw Shreenarain and Ram Narain grappling with each other. He saw that Durgalal, Bhanwarlal and Nandlal were giving lathi blows to Ram Narain. 12. PW-5 Sharwan is another witness. According to him he saw Shreenarain and Ram Narain grappling with each other. He saw that Durgalal, Bhanwarlal and Nandlal were giving lathi blows to Ram Narain. According to him Durgalal gave lathi blow to Gopi and Bhanwarlal was given lathi blow by Nandlal. 13. PW-6 Heera is said to be another eye witness and according to him Ram Narain gave lathi blow to Shreenarain on the head and then a melee started. He admits that he did not know what happened thereafter. 14. PW-9 Heera is the other eye witness of the occurrence and according to him, Shreenarain and Ram Narain grappled with each other and thereafter, Durgalal, Bhanwarlal and Shieenarain gave lathi blows to Ram Narain on his head and arms with the result that he was fell down. Then, Ram Narain was taken away. 15. The above is the gist of the testimony of the witnesses who claim to be the eye witnesses of the occurrence. From the aforesaid evidence, it is extremely difficult to hold that Durgalal was the lone author of the injuries on the head which had been caused to the deceased. 16. Here, in brief I may again refer to testimony of Dr. Vimal Kumar Jain who examined the dead body of deceased Ram Narain on 29-6-1981. He found three lacerated injuries on the head of the deceased which are on the (i) parietal area (ii) left parietal area and (iii) on the frontal area. Besides these injuries, he found some other injuries also. According to Dr. Vimal Kumar Jain the right parietal bone was fractured. In his opinion through the injuries taken collectively were sufficient to cause death of victims and such injuries could be inflicted by lathies but he has not stated that if any particular individual injury to the deceased was sufficient to cause his death. Rather he has admitted "Individual injuries to the deceased was not sufficient to cause death". When it is so, and it is not established which of the particular such injury had been caused by Durgalal, it is difficult to sustain his conviction for offence under section 3 4 II, IPC. 17. In this case, prosecution had to establish that the particular injury had been caused by Durgalal to the deceased and that injury proved fatal. When it is so, and it is not established which of the particular such injury had been caused by Durgalal, it is difficult to sustain his conviction for offence under section 3 4 II, IPC. 17. In this case, prosecution had to establish that the particular injury had been caused by Durgalal to the deceased and that injury proved fatal. This is so because there was no common intention between him, Bhanwarlal and Shreenarain to cause the death of the deceased. The appellant and his companions had gone to plough the field which jointly belonged to them along with deceased Ram Narain. When common intention to cause death of Ram Narain could not be attributed to the appellant and his companions, then the appellant could have been held found guilty only for such particular injury which is proved to have been caused by him to the deceased. In the present state of the prosecution evidence, it is difficult to predicate with any amount of certainty as to which of the three injuries had been caused by Durgalal to deceased Ram Narain. In view of this fact I find that the learned trial court was not right in the holding appellant Durgalal in finding him guilty of offence under Section 304 part II, IPC. However, in the facts and circumstances of the case, it can be rightly inferred that the appellant and his companions had exceeded the right of private defence of person of his father Shreenarain who had been given only one blow by deceased Ram Narain. 18. In this context, the learned counsel for the appellant contends that the case of the appellant is not distinguishable from the case of Bhanwarlal who was held to be the guilty only of offence under Section 323 IPC. He submits that he must be given the same treatment which has been meted out to co-accused Bhanwarlal. 19. Learned Public Prosecutor could not show how the case of Bhanwarlal stood on different footing from that of present appellant Durgalal. In my opinion, in the peculiar circumstances of the case, this appellant can be held to be found guilty only for offence under Section 323 IPC an offence for which Bhanwarlal has been found guilty on identical evidence. 19. Learned Public Prosecutor could not show how the case of Bhanwarlal stood on different footing from that of present appellant Durgalal. In my opinion, in the peculiar circumstances of the case, this appellant can be held to be found guilty only for offence under Section 323 IPC an offence for which Bhanwarlal has been found guilty on identical evidence. Though initially I was inclined to hold that this appellant could be held guilty of offence under Section 325, IPC, but in view of the contentions of the learned counsel for the appellant, I find that no distinction can be made between cases of co-accused Bhanwarlal and this appellant. 20. No other points were raised before me. 21. In view of what I have stated above, I partly accent this appeal and set aside the conviction of appellant Durgalal for offence under Section 304 part II, IPC and also set aside the sentence passed on him on this count. His conviction for offence under Section 323, IPC. is, however, maintained. 22. Learned counsel for the appellant points out that Durgalal was arrested on 17-7-1981 and was released on bail on 30-7-1982 and thus he has remained behind bars for more than one year. He is now on bail. Learned counsel for the appellant submits that he may be allowed time to deposit fine of Rs. 200/- so that the appellant may not be required to under go imprisonment for default of payment of fine. The request is reasonable. One months time is granted to the appellant to deposit the fine before the court below failing which he shall have to under go t o the sentence in default of payment of fine.Appeal partly allowed. *******