U. K. VARMA, J. ( 1 ) THIS is an appeal against the judgment of Sri S. D. N. Singh, Sessions Judge, Mirzapur dt. 17-11-1978 convicting Krishna Naraian, Gaya Dutt, Shree and Bachchan under S. 302 read with S. 34 of the I. P. C. and his order dt. 21-11-78 by which he sentenced all these appellants to undergo imprisonment for life. The appellant Bachchan having died during the pendency of this appeal, it has abated against him. ( 2 ) THE prosecution case is that the deceased Ashok Kumar Shukla on Aug. 7, 1977 between 9 and 9. 30 a. m. had gone to his ancestral field bearing No. 15-Ga in the village Nisogi for paddy plantation accompanied by his nephew Ugrasen, son of Triloki Nath Shukla. He was expecting his brother Radha Krishna Shukla complaint P. W. 1 to come with labourers for the above work. Ashok Kumar Shukla finding the level of water inside his field to be more than 10 to 12 inches, cut its northern Bandh 2 to 2 1/2 feet high and 3 feet wide. The excess water through the opening created started flowing inside the field of the appellant Bachchan. The appellants, Sri Dutt and Gaya Dutt are his sons and Krishna Narain is the son of Gaya Dutt. While the water was being so discharged inside the field of the appellants to the immedite north of the bandh, all the four appellants arrived about half an hour after the opening had been so made in the above bandh. The appellants Sri Dutt and Krishna Narain were carrying gandasa (axe) and Gaya Dutt a lathi. The appellants enquired from Ashok Kumar as to why he was discharging water in their field. Ashok Kumar told them that if they were being harmed thereby, he could close the opening in the bandh. Bachchan appellant thereupon exhorted that Ashok Kumar should not be allowed to escape. Even after he had fallen on being hit by lathi and Gandasa, the assault on him continued till Radha Krishna complainant arrived with the labourers numbering ten for the plantation of paddy. The alarms raised by Ugrasen at the time of the incident attracted the attention of Shiv Narain P. W. 2, who was passing from nearby and also Kamla and Rama Kant Shukla. The others in the nearby fields too rushed to the rescue of Ashok Kumar. The alarms raised by Ugrasen at the time of the incident attracted the attention of Shiv Narain P. W. 2, who was passing from nearby and also Kamla and Rama Kant Shukla. The others in the nearby fields too rushed to the rescue of Ashok Kumar. The appellants showing their lathi and Gandasa made good their escape towards their house, Ugrasen P. W. 3, nephew of the deceased who had run some distance on seeing the furious mood of the appellants narrated to the informant Radha Krishna P. W. 1 as to how the assault by the appellants had started. Radha Krishna and Ugrasen arranged for a cot. They put Ashok Kumar who had not died till then on it and started for Churk. When they reached the bus stand, Ashok Kumar died. His dead body was taken to the police out post Churk pertaining to the police station, Robertsganj, where the report Ex. Ka 1 was lodged. Besides what has been alleged above, it is mentioned therein that the accused of this case in the year 1970 had committed the murder of another elder brother of the informant. ( 3 ) THE post-mortem examinations of the deceased, Ashok Kumar had been done on 8-8-1977 by Dr. G. D. Burnwal. He had found the following ante-mortem injuries on his person:- (1) Incised wound 9 c. m. x 2 cm x bone deep on left side of forehead vertically. (2) Incised wound 8 cm. x 3 cm. x brain deep on the left side fore-head. The underlying frontal and left parietal bone fractured and depressed into the brain. The brain matter is visible through the wound found obliquely on the left forehead and slanting from before, backward and outward. (3) Incised wound 4 cm x 1. 5 cm. x bone deep on the back of head obliquely from above downwards and leftwards. (4) Multiple contusion in an area of 15 cm. x 15 cm. over left scapular region. (5) Contusion 8 cm. x 12 cm. on the front of left thigh. (6) Swelling right leg upper part. The upper part of right Tibia and Fibula broken. ( 4 ) THE internal examinations showed that the frontal bone on the left side, the left parietal and also the temporal bones were fractured and pieces were depressed in the wound. The membrances were lacerated and contused on the left and front sides. (6) Swelling right leg upper part. The upper part of right Tibia and Fibula broken. ( 4 ) THE internal examinations showed that the frontal bone on the left side, the left parietal and also the temporal bones were fractured and pieces were depressed in the wound. The membrances were lacerated and contused on the left and front sides. The left side of the brain was contused and lacerated. The left lobe was depressed in the front part. ( 5 ) THE prosecution had examined Radha Krishna P. W. 1, Shiv Narain P. W. 2 and Ugrasen P. W. 3 as the witnesses of the occurrence. Radha Krishna P. W. 1 gave out that reaching to the south of the Harijan locality, he heard the furore. He climbed on a high mend and from there noticed that the accused Bachchan from nearby was exhorting not to leave Ashok Kumar alive. The assault on Ashok Kumar by Sri Dutt, Krishna Narain and Gaya Dutt continued till Kamla, Ramakant and Shiv Narain challenged them. The accused threatened them that they would be killed, if they went up, to them. Bachchan accused before leaving was pointed to have satisfied himself that Ashok Kumar was not alive. After the accused left the scene of occurrence, it was discovered that Ashok Kumar was unconscious. Ashok Kumar died on reaching Chruk on a cot. The accused had inflicted the injuries which proved fatal in spite of the fact that Ashok Kumar had told them that he was prepared to stop the flow of water in their field. The accused was planting paddy in another field of theirs to the east and not in field wherein water had been let out. Its level was one foot lower. He merely admitted that it was a paddy field. He pointed that his house was at a distance of three miles from the place where the incident took place. The labourers brought by him for plantation, fled away on seeing the assault on Ashok Kumar. It was suggested to him that he had not seen the incident and he learnt about the murder of Ashok Kumar at his house and that Gaya Dutt at the time of the incident was performing a pooja at the residence of Mahendra Singh in village Sidhi. The witness Radha Krishna denied the above suggestions. It was suggested to him that he had not seen the incident and he learnt about the murder of Ashok Kumar at his house and that Gaya Dutt at the time of the incident was performing a pooja at the residence of Mahendra Singh in village Sidhi. The witness Radha Krishna denied the above suggestions. ( 6 ) SHIV Narain P. W. 2 deposed that Ugrasen was crying aloud for help. He had seen Krishna Narain and Sri Dutt assaulting with Gandasa and Gaya Dutt with lathi and Bachchan exhorting with a lathi in his hand that he was to be assaulted till he died. Radha Krishna P. W. 1 arrived at the time of assault. Bachchan enquired while the accused were going back, whether Ashok Kumar was alive or not and Krishna Narain told him that he would die. He further was pointed to have told the persons present that they could take away his dead body. He had seen Ashok Kumar fallen in between the hill and the mend of the reservoir 2 to 2 1/2 feet high and that the accused had run away when he was at the distance of 30 to 35 steps from them. It was suggested to him that he had not seen the incident. He admitted that there were two villages in between his and the place of the incident. ( 7 ) UGRASEN P. W. 3, corroborated the allegations of the first information report. He further stated that Bachchan had enquired after the assault whether Ashok Kumar was alive or not and thereupon Krishna Narain stated that he was dead and that they could take away his dead body. In the cross-examination he gave out that the water of his field was discharged only when no one suffered thereby but not otherwise. Water had accumulated inside his field as a result of the rains two or three days earlier. Ashok Kumar had made opening in the mend by Kudali which he was carrying. The paddy saplings of Bachchan were being planted at a distance of 200 to 250 steps from the place where the opening had been made in the mend. He had not seen the accused going to their houses to bring their weapons but he believed that they would have gone to bring the same. The paddy saplings of Bachchan were being planted at a distance of 200 to 250 steps from the place where the opening had been made in the mend. He had not seen the accused going to their houses to bring their weapons but he believed that they would have gone to bring the same. Krishna Narain and Gaya Datt had assaulted Ashok Kumar simultaneously and Sri Dutt had inflicted the blows with Gandasa after he had fallen. Radha Krishna had enquired from him as to how the incident happened and he had told him about it. Ashok Kumar had died near the Churk bus stand, while being taken to the hospital. Thereafter, the report was scribed and was taken to the police out post Churk for being lodged. ( 8 ) THE Investigating Officer Ram Ashish Yadav PW 5 proved the inquest report Ex. Ka 5, diagram of the dead body Ex. Ka 6, its challan Ex. Ka 7, the recovery memo in respect of garments of the deceased Ex. Ka 8 and the site plan of the place of the incident marked Ex. Ka 9 which was pointed by him to have been drawn with the assistance of Ramakant Shukla and Shiv Narain P. W. 2. In the cross-examination he stated that when he reached the plot No. 7 wherein water had been discharged on the date of the incident, he found the paddy plantation going on. He admitted that the mend to the north of the site of occurrence was old and had been built to catch the rain water. ( 9 ) THE Sessions Judge had examined Vishambhar Lal C. W. 1 as a Court witness. He gave out that the field of Ram Hit, father of the deceased was to the south of the bandh. The area of his land was shown as 1 bigha 9 biswas in the village papers. He could not say from which plot, the above land of Ram Hit had been carved and how far his field was from the bandh and whether it was a little removed from it or not. The plot No. 15-Ga was not shown in the settlement map. He was unable to tell when it had been carved out. He denied the suggestation that no part of plot No. 15 had been cultivated and that the entry in favour of Ram Hit was fictitious. The plot No. 15-Ga was not shown in the settlement map. He was unable to tell when it had been carved out. He denied the suggestation that no part of plot No. 15 had been cultivated and that the entry in favour of Ram Hit was fictitious. ( 10 ) THE accused in their statements pointed that there was enmity between them and the deceased and that the witnesses were also inimical to them and they had roped them in this case. The accused, Bachchan Tewari gave out his age to be 72 years and tried to impress that he was not in a position even to walk easily. The flow of the water of the bandh (reservoir) was towards east and he had been taking water from it, when needed. Gaya Dutt stated that he resided in Sidhi. He had separated from his father fifteen years back and had remarried a girl of Madhya Pradesh. At the time of the alleged incident he had been performing pooja at the house of Mahendra Singh in Sidhi. He examined Mahendra Pratap Singh, D. W. 1 in defence. Mahendra Pratap Singh gave out that on the date of the incident Gaya Dutt started his religious discourse in the temple at 8 a. m. and it continued up to 11 a. m. Gaya Dutt remained at his house throughout the day and returned back to his own house after dinner at 11 p. m. In the cross-examination Mahendra Pratap pointed that he heard the Satya Narain Katha on the date of the incident after observing fast and took his meals after feeding the Pandits. Gaya Dutt has been in purohit. Others in the village had also heard the Katha. He had learnt about the murder of Ashok Kumar on the date of the incident at 11 p. m. He had told the Sub-Inspector that Gaya Dutt was at his house at the time of the alleged incident and he narrated Kathha to him on that date. The Sub-Inspector, who came searching for Gaya Dutt 20-25 days after the incident had told him that he would not involve him in this case. He pointed that the name of his father was Nand Kishore. He was Sabhapati of the village Sidhi in 1965-66. The Sub-Inspector, who came searching for Gaya Dutt 20-25 days after the incident had told him that he would not involve him in this case. He pointed that the name of his father was Nand Kishore. He was Sabhapati of the village Sidhi in 1965-66. The complainant Radha Krishna was a teacher in the boys school at Sidhi, his father had not been removed from his position as Sabhapati on the allegation that he had misappropriated Rs. 3,500. 00 of that school. He pointed that he had voluntarily left that post and went to live in Birbal. He refuted the suggestion that Gaya Dutt had not been reciting any Katha on the date of the incident. The counsel for the accused in the trial Court besides trying to show that Ashok Kumar had been murdered at a time when none of the prosecution witnesses was present wanted to impress that there was no question of the participation of the appellants Bachchan and Gaya Dutt as Bachchan was very old and invalid and Gaya Dutt had ceased to have interest in Bachchans land because of his separation from him fifteen years back and shifting of his activities to Sidhi after his remarriage. It appears from the judgment that it had also been argued before the Sessions Judge that even if some of the appellants were involved in the incident, they had the right to defend their paddy crop, which the deceased, Ashok Kumar had inundated by cutting the bandh and that the charge against the appellants could not be held to travel beyond the ambit of S. 304 of I. P. C. as the cutting of the bandh and the discharge of water in the paddy field of Bachchan would certainly have provided grave and sudden provocation in the background of the admitted fact that the parties were having civil and criminal cases in between them. Besides it was urged that the cutting of the bandh implied wastage of water, which Bachchan and his son Sri Dutt and his grand son Krishna Narain could utilize and which also was fraught with the possibility of Ashok Kumar, deceased trying to grab land of the bandh over 1 bigha, 9 biswas of which his father, Ramhit had already got himself recorded, although as was obvious from the statement of Bishambhar Lal, Lekhpal CW-1 that the said land was not identifiable and was not so recorded in the settlement papers. The learned counsel for the appellants Sri P. N. Misra besides urged before us that on the facts of the case it would not at all be justifiable to infer that the death of Ashok Kumar had been caused in furtherance of the common intention as there had been no prior deliberation between the appellants and the assault had been made immediately when it was detected that Ashok Kumar was causing damage to the paddy saplings by the discharge of water from the bandh inside their field. He argued that the alleged exhortation attributed to Bachchan could not be believed. He referred to the case of Pandurang v. State of Hyderabad, reported in AIR 1955 SC 216 : (1955 Cri LJ 512) to make out his point that even if some of the appellants are held to have participated they will be liable for their individual acts in the absence of proof of common intention beyond reasonable doubt. ( 11 ) WE shall first discuss as to what offence can be held to have been made out in the circumstances of the case appearing from the evidence adduced by the prosecution. The prosecution had examined Radha Krishan, P. W. 1, Shiv Narain P. W. 2, and Ugrasen P. W. 3 as the witnesses of the occurrence. Radha Krishan and Shiva Narain from their own statements could not be presumed to have witnessed as to how the incident had started. Radha Krishan had heard the furore when he was near the Harijan locality which is at a distance of more than two hundred yards as pointed by the Investigating Officer. He is indicated to have run a distance of fifty five to sixty yards as shown in the site plan Ex. Ka 10 to see what had happened. Radha Krishan had heard the furore when he was near the Harijan locality which is at a distance of more than two hundred yards as pointed by the Investigating Officer. He is indicated to have run a distance of fifty five to sixty yards as shown in the site plan Ex. Ka 10 to see what had happened. It was argued that it was too much of a coincidence for him to have reached at the nick of time and then it was further submitted that he could have hardly noticed the details of the marpeet from such a distance. Besides his statement that all the labourers whom he had brought with him fled away on seeing the marpeet further renders his statement as being not free from suspicion more so when there is admittedly enmity between him and the accused. Shiva Narain pointed that he had gone searching for labourers who could help him in the plantation of paddy and when he was returning although without being able to bring any with him, he happened to meet Kamla Misra and Ramakant Shukla and as they reached near the house of Ram Naresh, they heard Ugrasen crying for help to Ashok Kumar. They rushed towards the scene of occurrence and saw Krishna Narain and Sridatt assaulting Ashok Kumar with Gandasa and Gayadatt with Lathi and Bachchan with a Danda in hand instigating that he should be battered till he was dead. Ashok Kumar on account of the injuries inflicted had already fallen but in spite of it, the assault on him continued. Shiv Narain even on his statement could only be said to have seen part of the incident. Ugrasen tried to improve upon the case by introducing that after they had cut the Bandh and were standing in their field, the accused went to their camp and brought the weapons of assault namely, Gandasa etc. but soon realised that it could lead to complications and admitted that it was only his surmise that the accused had gone to arm themselves before taking up the matter regarding the unwanted discharge of water in their fields by Ashok Kumar. On examination of the evidence addued, it could not be said that the assault was the result of any premeditation between the accused. On examination of the evidence addued, it could not be said that the assault was the result of any premeditation between the accused. The decision to give a beating to Ashok Kumar seems to have been taken in his presence by the assailants when it had been found that Ashok in order to cultivate his land, which formed part of the common reservoir specially useful to them due to its proximity had not only wasted its water by making an opening in its northern mend but had callously damaged their paddy saplings. Ugrasen gave out that the paddy plantation had been going on at a distance of 200 to 250 steps east of the place where the opening had been made but his statement receives a jolt from the statement of the Investigating Officer, Ram Ashish Yadav P. W. 5, who pointed that soon after the incident when he reached the scene of occurrence he had found paddy plantation going on in the plot No. 7, wherein the opening had been made and water had been discharged by Ashok Kumar, deceased. There can be no doubt that the water discharged would have caused damage to the accused as it was unwanted. Had it not been so, Ashok Kumar could not have said that if the discharge of water was causing harm, he was willing to close it. The counsel for the appellants justifiably argued that Ashok Kumar could never have been so soft in his expression and would not have even been agreeable to close it himself when on the prosecutions own showing he had sent for labourers for plantation of paddy inside his field to the south of the high Mend of the reservoir wherein there was still very much more water than what was necessary for the plantation of paddy which he wanted to start on the date of the incident and which was not possible without the removal of water from his field. The fact that the Lekhpal Vishambhar Lal CW 1 expressed inability to be able to identify the land recorded in the name of Ramhit (father of Ashok Kumar and Radha Krishan) wherein paddy plantation was intended on the date of the incident shows that Ashok Kumar, deceased and Radha Krishan P. W. 1 had selfishly intended to do plantation on the land inside the limits of the reservoir over 1 bigha 9 biswas of which Ramhit had succeeded in getting his name recorded but which till then had not been cultivated and which without the discharge of water could not have been cultivated. The accused denied that there had been resentment by them when the high mend of the reservoir had been cut by Ashok Kumar and water was discharged inside their fields but it appears that the denial was not on account of the reason that no cause had been given but for the reason that if they would have admitted the altercation between them and Ashok Kumar, it would have linked them with the assault on the latter. The fact that the bandh had been cut, and the fact that thereby unwanted water had flowed inside the field of the accused where paddy saplings were already there have been established from the statement of the Investigating Officer Ram Ashish Yadav P. W. 5 and the site plan Ex. Ka 10 prepared by him with the help of witnesses named in the F. I. R. The fact that water was being dispelled inside the field of the appellants when they arrived is clear from the statement of Ugrasen P. W. 3 or else there was no point in the deceased offering to the appellants that he could stop the same although the offer part and also the manner in which it was stated to have been made could not be accepted when it was a designed act and when it had the certain consequence of damaging the paddy plantation of the appellants which fact Ugrasen tried to suppress by pointing out that there was no paddy in the field wherein the water of the bandh had been discharged. We have already pointed out above that the Investigating Officer had found paddy planted in that field bearing No. 7. We have already pointed out above that the Investigating Officer had found paddy planted in that field bearing No. 7. It was not to be accepted that the appellants had done the paddy plantation in between the murder of Ashok Kumar and the visit of the Investigating Officer. The dead body of Ashok Kumar had been found in the vicinity of the place where the bandh had been cut. The plea of the exercise of the right of private defence although the same had been exceeded and failing it the causing of grave and sudden provocation by the deceased are amply borne out from the circumstances of the case emerging from the evidence on record. We at the same time have no hesitation in saying that the causing of the death of Ashok Kumar was not justifiable because the facts of the case do not show that either S. 100 or S. 103 of the Penal Code are attracted. ( 12 ) COMING now to the question as to whether the incident had really been witnessed by Ugrasen and Shiv Narain or they had given imaginary account due to enmity, we are of the view that Ugrasen as is the prosecution story was likely to have been there particularly as the cutting of the bandh 2 1/2 feet high and 3 feet wide would have required not only physical assistance but adequate courage and daring to do so for the same was bound to the resented because of its consequences. Besides when the land was recorded in the name of Ramhit and not in the name of Ashok Kumar Ugrasen would naturally have been there to assist particularly when the joint paddy plantation had already got delayed as most of the fields there had already been sown admittedly. Ugrasen P. W. 3 is thus, a natural witness and was likely to be present at the time of the incident as the plantation of paddy had to be done in the joint land. So far as Shiv Narain is concerned, it could not be said that he was not likely to be nearby for he pointed that he had met Kamla and Rama Kant also who were not shown to be close to him and as such could contradict him. So far as Shiv Narain is concerned, it could not be said that he was not likely to be nearby for he pointed that he had met Kamla and Rama Kant also who were not shown to be close to him and as such could contradict him. Ugrasen gave out that Krishna Narain with Gandasa and Gaya Dutt with lathi had first assaulted Ashok Kumar and when he fell down Sri Dutt alone had assaulted him with his Gandasa. If the statement of Ugrasen was to be believed, Shiv Narain could only be held to have seen Sri Dutta assaulting with Gandasa for he pointed that Gaya Dutt had not caused any injury after the fall of Ashok Kumar where as Shiva Narain stated to have seen only such assaults as were made after the fall of Ashol Kumar. Besides the accused were pointed to have run away when Shiv Narain was still thirty to thirty five steps away from him. Gaya Dutt admittedly was not an accused in respect of the murder of Tribhuvan Nath an elder brother of Radha Krishna in 1970. Ugrasen admitted that from ten to twelve years Gaya Dutt lived in Sidhi during the day. He also acknowledged that he had not seen him doing cultivation in the Khairahi village where he spends the night. He also did not dispute that he had remarried ten to fifteen years back and three to four children were born to him of this wedlock and that he was a Katha teller and Ramayan reciter. He could not categorically deny that Bachchan, his father, had separate him after his remarriage. He further owner that Mahendra Pratap Singh DW 1 was a big cultivator of Sidhi. If Gaya Dutt was no cultivating in Khairahi he was not likely to have gone to the field, the crop of which was damaged. Gaya Dutt in support of his statement examined Mahendra Pratap Sing DW 1 to prove that at the time of the incident he had been telling Satya Narain Katha, and his relatives etc. were all present at that time. There is no reason why Mahendra Pratap Singh, who admittedly is a big cultivator and has nothing to gain from Gaya Dutt should not be believed. He could not be held to be unreliable simply because the Investigating Officer has not shown that he had examined him. were all present at that time. There is no reason why Mahendra Pratap Singh, who admittedly is a big cultivator and has nothing to gain from Gaya Dutt should not be believed. He could not be held to be unreliable simply because the Investigating Officer has not shown that he had examined him. Further if his statement has a ring of truth it is not to be discarded because the prosecution witnesses have stated otherwise. Shiv Narain pointed that at the time of the incident Bachchan was also carrying a lathi. The injuries on the deceased, we are of the view had been caused by the accused other than Gaya Dutt. The accused Gaya Dutt cannot safely be held guilty because he has admittedly not the same interest in agriculture according to Ugrasen P. W. 3, because he could be living separately from his father and depending on purohit for his livelihood and further because the evidence against him is not consistent. Coming now to Krishna Narain and Sri Dutt we find that the deceased Ashok Kumar had been inflicted three incised injuries besides some contusions. All the three incised injuries were on head. It could therefore, safely be inferred that Krishna Narain and Sri Dutt had intended to cause death or such bodily injuries as were likely to cause death. Since they had been caused under grave and sudden provocation while exercising the right of private defence which had been exceeded, Krishna Narain and Sri Dutt are guilty under S. 304, Part I of the I. P. C. So far as Bachchan appellant is concerned, the appeal has abated against him on account of his death. ( 13 ) THE appeal is partly allowed. The conviction of Krishna Narain, Gaya Dutt and Sri Dutt under S. 302 of the Penal Code and the sentence of imprisonment for life awarded to them are set aside. ( 14 ) GAYA Dutt is acquitted of the charge under S. 302 read with S. 34, I. P. C. He is on bail. He need not surrender. His bail bonds are discharged. ( 15 ) KRISHNA Narain and Sri Dutt appellants are convicted under S. 304, Part I, I. P. C. read with S. 34 thereof and are each sentenced to imprisonment for seven years. They are on bail. They should surrender to their bail bonds to serve the sentences awarded to them. He need not surrender. His bail bonds are discharged. ( 15 ) KRISHNA Narain and Sri Dutt appellants are convicted under S. 304, Part I, I. P. C. read with S. 34 thereof and are each sentenced to imprisonment for seven years. They are on bail. They should surrender to their bail bonds to serve the sentences awarded to them. ( 16 ) BACHCHAN appellant having died, his appeal abates. Appeal allowed in Part. .