Honble FAROOQ HASSAN, J. —, These two appeals arise out of two different sessions cases which relate to an incident of which two cross reports were filed by both the parties. Since these appeals arise out of one and the same incident alleged to have taken place on 22.7.78 and at the joint request of both the parties, they are being disposed of by this common judgment. 2. Learned trial Court holding the incident of a free fight, convicted the accused persons who are appellants in these appeals for their individual act. 3. Each of the accused persons - Himmat Singh, Prahlad & Govind Ram (appellants in Cr. App. No. 245/83 of Sess. case No. 51/81) and Yadram & Ram Khilari (appellants in Cr.App. No 240/83 out of Sess, case No. 52/81) convicted under Section 323, IPC, but ordered to be released after admonition under Section 3 of the Probation of Offenders Act. 4. Remaining accused persons were convicted & sentenced as under:- Chhitaria U/s 325, IPC. - One years RI with a fine of Rs. 500/- in default, 2 months RI further. Bhagwat Singh U/s 307, IPC - 3 years R.I. with a fine of Rs. 2,000/- in default, 6 months further R.I. 5. Brief facts. In Sess. case No. 51/81- 6. Yadram lodged a report (Ex. P. 1) at police station Kumher on 22.7.78 alleging therein that, he was Ex-Sarpanch having inimical terms with accused persons named in the reports namely, Himmat Singh, Puran, Laxman, Govind & Gopal on account of Panchayat election feud and in the evening, the accused persons entered into his house and then surrounded him that accused, Govind inflicted lathi blow on his person but was saved by Nem Singh (PW 4), Pappu Gariya (PW5) & Dyoji Gariya (PW 8), that, the accused persons then went away and he alongwith Nem Singh, Pappu & Dyoji went to the house of Deviram where he saw Ramdayal (PW3), Sukhdev (PW 11), Dharam Singh (PW2), & Smt. Saroopi (PW6) among others but, after some times 12 accused persons came back including the afore-named persons and at that time, Bhagwat Singh was duly armed with gun whereas Dulichand with country made Katta and others with lathies. 7. 7. It had also been alleged in the report lodged by Yadram that accused, Himmat Singh, Laxman & Ninua provoked to finish him & thereupon Bhagwat Singh opened fire which did not hit anybody and that, Nem Singh (PW4) & Dharam Singh (PW2) resisted the accused persons from doing so but, accused Badley enraged himself and exhorted to finish them favouring him thereby Bhagwat Singh again fired gun shot upon Dharam Singh resulting in causing injuries on his head & thigh. According to the report of Yadram, Nem Singh (Pw 4) was also injured due to gun shot fired by Duli Chand (accused), in as much as Ramdayal (Pw3) & Mst. Sarupi both were injured due to infliction of blows by the accused persons. 8. According to their injury reports, Yadram, Dharam Singh, Nem Singh, Mst. Sarupi, & Ram Dayal sustained respectively one, three, three, one and two injuries on their persons. After usual investigation, during which, a gun was recovered from Bhagwat Singh, and a country made Katta was also seized, challan was filed in the Court and after committal proceedings, the accused persons Bhagwat & Dulichand were charged under sections 148, 307 & 323/149, IPC, whereas Himmat, Prasadi, & Prahlad were charged under aforesaid sections but without Section 149, IPC and the remaining accused namely, Ninua, Badle, Dholu, Puran, Laxman, Govindram & Gopal, were charged under Sections 147, 307 & 323/149 IPC. All these accused persons denied the charges and pleaded not guilty and claimed trial. After recording the statements of the prosecution witnesses and the accused persons and defence witnesses, etc, and hearing both the parties, except the appellants (Himmat, Prahlad, Govindram & Bhagwat who were convicted & sentenced as indicated in second para, (supra), other accused persons, named above, were acquitted of the offences charged. Bhagwat appellant was also acquitted of the offence of Section 148, 323/149, IPC, whereas Himmat, Prahlad & Govind Ram (appellants) acquitted of the offences of Sections 147, & 307, IPC In Sessions case No. 52/81— 9. Cross report by Bhagwat Singh which was first in time as against the report lodged by Yadram, came to be lodged at police station Kumher on 21.7.78. Cross report by Bhagwat Singh which was first in time as against the report lodged by Yadram, came to be lodged at police station Kumher on 21.7.78. It had been alleged therein that, at about 4/5 p.m. in the evening of 21.7.78, Mohan & Roop Singh were grazing catties in the field of Bhagwat Singh so, he (Bhagwat Singh) alongwith his brother Prasadilal started drawing the catties out of the field and while they were taking the catties towards cattle house Paprera, in the way they saw the accused persons at the Choraha duly armed with Farsa, Lathi & Ballam etc. and that at that time, Nemsingh (accused) provoking his other companions to finish, opened a fire upon Bhagwat by his country made Katta but Bhagwat saved himself by sleeping down and that, Nemsingh fired two shots and then saying that the shots were not being fired from the Katta, so, attacked by lathies & Farsa and thereby Yadram & Dharma started beating with lathies upon Bhagwat and other accused persons gave lathies blow on the person of Prasadilal. As a result of beating, Prasadilal and Bhagwat allegedly fell on the earth and upon their hue and cry, Ninua "(Dw 3), Badle (Dw 4), & Raghunath Singh (Dw 5) rushed to them & saved them. According to the report of Bhagwat, their catties were also taken away by the accused persons. The report was lodged after Bhagwat and Prasadilal got themselves medically examined. Upon the aforesaid report, after usual investigation the challan was filed in the Court and after committal proceedings, accused persons, Namsingh, Ramdayal, Yadram, Roop Singh, Ram Khilari, Dharam Singh, Mohan Singh and Chhitaria were charged respectively under Sections 147 and 307, IPC. Prasadilal sustained four injuries whereas similarly, Bhagwat also sustained four injuries but Prasadilal sustained one fracture. 10. After examining 12 prosecution witnesses and accused persons under Section 313, Cr. P.C. and after due trial, hearing both the parties, found the accused persons guilty and sentenced them as indicated in third para of this judgment. 11. Before I proceed with further, I would like to mention the injuries alleged to have been sustained on the persons of the prosecution and accused sides in the impugned incident. Prasadilal- 1. Lacerated wound 2"x1/4" x 1/4" Rt. Parietal Region. 2. Lacerated wound 1 /12" x 1/4" x 1/4" Rt. Parietal Region posteriorly 3. 11. Before I proceed with further, I would like to mention the injuries alleged to have been sustained on the persons of the prosecution and accused sides in the impugned incident. Prasadilal- 1. Lacerated wound 2"x1/4" x 1/4" Rt. Parietal Region. 2. Lacerated wound 1 /12" x 1/4" x 1/4" Rt. Parietal Region posteriorly 3. Lacerated wound 1/4" x 1/4" x 1/4" Rt. elbow Lat. border 4. Abrasions 1!" x 1/2" One back on midline at lower level. 12. For injury Nos. 1 to 3, X-ray was advised and all the injuries were opined to have been caused by blunt object and injury No. 4 was found to be simple in nature. After X-ray, no fracture was found on skull but, as regards, fracture lateral epicondgle of right humarous was present and no callus was found. Bhagwat Singh- 1. Lacerated wound l" x 1/4 x 1/4" Rt. Parietal Region 2. Abrasions 1" x 1/2" Rt. hand near wrist on palmer aspect 3. Abrasions 1/4" x 1/4" over terminal Phalynx of Rt. ring finger. 4. Abras ons 1 1/2 " x 1" over lower l/3rd of Rt. leg on medial aspect. Injury Nos. 3 and 4 were found to be simple in nature. For injury Nos. 1 and 2, X-ray was advised. All the injuries were said to have been caused by blunt object. Yadram- 1. Bruise (red colour) 2 1/2" x 3/4" over left scapula. This injury was stated to be simple in nature and was allegedly caused by blunt. Dharam Singh- 1. Lacerated wound 1 1/2 cm. x 1/2 cm x 1/4 cm. left parietal region 2. Lacerated wound 1 cm. x 1/2 cm. x 1 cm. Rt. thigh upper (margins are l/3rd ant. aspect. blackist) 3. Abrasions l 1/2 cm. x 1 cm. Left elbow outer side. 13. Injury No. 3 was said to be simple in nature. For injury Nos. 1 and 2, x-ray was advised. Injury Nos. 1 and 3 were allegedly caused by blunt object. After x-ray Injury No. 2 was said to be grievous caused by fire arm, and its x-ray showed fracture neck of femur; Rt. side with two radio opaque shadows resembling bullet and no callus. 14. Swaroopi w/o Deviram- 1. Abrasions 1"x 1/4" over Rt. side of chest wall. This injury was opined to be simple in nature and allegedly caused by blunt object. Nem Singh- 1. side with two radio opaque shadows resembling bullet and no callus. 14. Swaroopi w/o Deviram- 1. Abrasions 1"x 1/4" over Rt. side of chest wall. This injury was opined to be simple in nature and allegedly caused by blunt object. Nem Singh- 1. Lacerated wound 1/4" x 1/4" x 1/8" occipital region 2. Abrasion 1/4 x 3/4" over face near outer angle of Rt. eye. 3. Complained of Rt. index finger-No evidence of external injury. Both the injuries, supra, were said to be simple having been caused allegedly by blunt object. Ramdayal 1. Abrasions 1-1/2" x 1/3" Over left leg just below the tibial tubercle on anterior aspect. 2. Contusion 1" x 1/4" over left thigh (middle l/3rd) anterior aspect.(Red colour) (Red colour) 15. Both the injuries were alleged to be simple having been caused by blunt object. 16. Obviously, both these appeals related to one and the same incident wherein both the parties sustained injuries and they in their respective reports held either of the party as aggressor. So, in case it is found that one of party was aggressor then definitely the benefit of such finding will go to that party and in that situation, one of the appeals is to be dismissed. 17. It has been contended before this Court that the learned trial Court erred in holding that it was a case of free fight. A look at the record shows that none of the party has set up a case of free fight or that, both the parties were determined for trial of their strength and thereafter had free fight. 18. Mr. Biri Singh, learned Advocate contended that admittedly it is clear that the complainant party was aggressor and they opened assaults upon the accused party and got their catties freed from the possession of Bhagwat Singh who was alleyedly taking the catties to cattle ponds because, the catties damaged their crops. Shri Singh then urged that it is settled law that where if it is not proved that both the parties were pre-determined to fight for trial of their strength, only in that situation it can be held that the case was of free fight. In this regard, he relied upon the decisions in AIR 1954 SC. P. 694; (1) and 1988 Raj. Cr.C.P. 18 and 41 (2). 19. In this regard, he relied upon the decisions in AIR 1954 SC. P. 694; (1) and 1988 Raj. Cr.C.P. 18 and 41 (2). 19. Shri Biri Singh then argued that the prosecution failed to prove genesis of the occurrence and the defence theory put forward by the accused was probable; that, material and important witnesses have not been examined by the prosecution inasmuch as the statements of the prosecution witnesses were recorded by the police after a great delay and that, the trial Court erred in not holding that the accused party had a right of private defence of their person and property. 20. On the other hand, learned Public Prosecutor and Shri D.K. Soral suported the findings of the trial Court and according to them, the learned trial Court was justified in finding the appellants, Bhagwat Singh & others, guilty and no right of private defence of person accrued to them. 21. I have considered the point raised by the parties in the light of the submissions of the parties........... incident is not probable at all as alleged by the prsecution Contrarily, Bhagwat Singh & his brother Prasadi have given sufficient and cogent reasons for their presence at village Papsera They have specifically stated that the catties of Mohan Singh (PW 5) & Roop Singh (PW8) wres grazing in the fields and that, they drew away toe catties from the fields and took the catties to the catties pond in the village and when they were in the way with the cattles then the complainant party opened attack on them near the house of Deviram (father of PW8), the complainant party wanted to get he cattles freed by force and got the cattles freed at that time. Therefore, the presence of appellants, Bhagwat Singh & others, was quite natural and proba-ble, and that being so, the defence version appears to be reasonable and plausible. In this regard, I find support from the decisions in : Chanan Singh vs. Sate of M.P. (3), Subhan Khan vs. State of Rajasthan (4), Seriyal vs. State of T.N. (5), Pramod Kumar vs. State of Rajasthan (supra) and 1987 (2) RLR p.726(6). 22. After going through the statements of the prosecution witnesses it appears that the occurrence has also been witnessed by Gheesa s/o Sukhram, Deviram s/o Sonpal, Puran s/o Nekram, Ravati s/o Madia Kumhar. 22. After going through the statements of the prosecution witnesses it appears that the occurrence has also been witnessed by Gheesa s/o Sukhram, Deviram s/o Sonpal, Puran s/o Nekram, Ravati s/o Madia Kumhar. But these witnesses have not been produced by the prosecution nor any explanation has been put forward for their non-production, moreso, when all these persons have been shown in the calendar of witnesses annexed to the charge sheet. They were independent witness. Deviram & Puran allegedly presented the articles of fire-arms seized by the investigating officer vide Ex. P. 10 & P. 11. Failure on the part of the prosecution to produce the aforesaid persons in the witness box casts aspersions on the prosecution story raising a reasonable inference that had they been examined, they would not have supported the prosecution witnesses. Withholding these persons so as to unfold the prosecution story which lacks of corroboration and which tends to disclose material particulars and genesis of the occurrence, and its non-explanation of the prosecution, entitles the accused to the benefit of doubts as has been held in Hemraj Vs. State of Gujarat (7), Iswar Singh Vs. State (8) Bir Singh Vs. State of U.P. (9) and State of Raj. Vs. Puran. (10). 23. Undisputedly, the investigating officer under law is bound to record statements of the alleged eye witnesses under Section 161, Cr.P.C. promptly. But in the case at hand, the incident allegedly took place on 21.7.1978 at 7 p.m. & its report was lodged at the police station on 22.7.1978 at 6.30 p.m. belatedly after about 24 hours, inasmuch as evidence of the alleged eye "witnesses was recorded by the police on 27.7.1978 & afterwards, without any explanation about such a delay and this has resulted in diminishing the eviden-tiary value of these witnesses and that apart, the presence of such witnesses at the place of occurrence casts doubt on the prosecution story and their testimony becomes doubtful-the benefit of which must go to the accused-appellants, as has been laid down in- Krishanlal Vs. State (11) and State Vs. Hukam Chand (12).. 24. State (11) and State Vs. Hukam Chand (12).. 24. One more significant infirmity, as has rightly been pointed by the learned counsel, is that in the case at hand, the prosecution has come out with the version that Bhagwat Singh (appellant) was armed with gun and Yadram was having a country made Katta; but from the injury report and x-ray report of Dharam Singh it appears that the injuries found on his person was caused by a rifle and not a gun. In the presence of declination on the part of the witness Dr. R.D. Goyal (Pw 10) obviously because he was not an expert in the science of fire-arms, to state in his cross-examination about the distance from which the fire arm was fired, the prosecution in my View, had to examine a qualified expert so as to establish on record, whether the injuries attributed to Bhagwat Singh were caused either by gun or rifle having been used at such a close distance as was being suggested in the evidence by the prosecution and in the injury report. In the presence of the circumstances, appearing on record, the evidence of an expert on the aforesaid controversy was necessary and in the absence of such an evidence, Bhagwat Singh cannot be convicted wholly upon the oral testimony and thus the impugned conviction based on an evidence which remained unfortified by an expert evidence which clinches the plank of the prosecution story, is not sustainable in the eye of law, as has rightly been laid down by their Lordships of the Apex Court in Mohinder Singh vs. State (13). 25. The prosecution has not proved injury reports of Nem Singh, Ram Dayal, Smt. Sarupi and Yadram according to the procedure laid down in the Evidence Act. etc. The prosecution got these injury reports of the aforesaid injured persons, exhibited without producing the concerned doctor who had prepared them. The doctor produced in the witness box has not at all stated even a single word whether had he examined these injured persons and prepared their injury reports. That being so, in the absence of the evidence of a doctor, these injury reports remained legally unproved and could not be acted upon them at its face value and no aid can be taken so as to base the conviction upon the accused" on the basis of the injury reports. That being so, in the absence of the evidence of a doctor, these injury reports remained legally unproved and could not be acted upon them at its face value and no aid can be taken so as to base the conviction upon the accused" on the basis of the injury reports. The benefit of which also must go to the accused persons. 26. In the case at hand, also, the prosecution is alleged to have seized some cartridges and fire.- arms vide Ex. Ps. 10 and 11 and which are allegedly produced by Deviram and Puran. But, neither these two persons have been produced nor any ballistic experts report has been produced in the evidence on record. In these circumstances there is no evidence on record to connect the appellants with the alleged crime of causing injuries by fire-arms. Thus, the impugned conviction is not sustainable. 27. I may reiterate that cross case has also been registered against Yadrarn and others on the report of Bhagwat Singht who in his report as well as statement under Section 313 Cr. P.C. had taken a specific defence plea produced the evidence in support thereof. 28. Having gone into the evidence of both the parties contemporaneously, it appears that in the case at hand, Bhagwat Singh & ors. were able to prove that Bhagwat Singh and his brother, Prasadilal when were taking the catties of the complainant party to the cattle ponds situated in village Paprerar so as to oust the catties from their fields, at that time, near the Pataur of Deviram, Bhagwat Singh & ors. were assaulted by the complainant party by giving beating to them, thereby, Bhagwat Singh and Prasadi sustained grievous injuries and other simple injuries on their bodys vital parts & in that melee, the complainant party succeed in getting their catties freed from the possession of Bhagwat Singh and Prasadilal But all these circumstances, appearing on record, have completely been ignored by the trial Court and it failed to give any weight to the defence plea which was probable. Approach of the learned trial Court was that the case was of a free fight. Approach of the learned trial Court was that the case was of a free fight. After going through the entire record and the defence evidence, contrarily, I find that the trial Court has failed to give any weight to the probable defence, and in my considered opinion, the trial Court should have extended benefit of right of Private defence to the appellants, Bhagwat Singh and others. My view is fortified from the decisions in Yogendra. Morarji vs. State of Gujarat (14) and Promod Kumar vs. State, (supra). 29. A look at the record shows that the prosecution failed to explain injuries found on the persons of Bhagwat Singh and his brother, Prasadilal as per the statement of the doctor and the duration stated in the injury report about the injuries coupled with the facts stated in the counter report thus it cannot be disputed that the accused sustained injuries in the same incident which has been alleged by the complainant party, Yadram and othets. So, it was the duty of the prosecution to have explained the injuries sustained on the accused persons. Further from the record it appears that a suggestive question was put to all the witness that they have given beating to the appellants, Bhagwat Singh and others and got their catties freed from them but the answer was in negative. It is thus clear that none of the prosecution witnesses admitted injuries on the persons of accused Bhagwat Singh and others. 30. As stated earlier, appellant, Bhagwat Singh sustained four injuries and Prasadilal also sustained four injuries. Both of them sustained grievous injuries. The injuries on the persons of Bhagwat Singh and Prasadilal have been proved by producing injury reports (Ex. D. 6 and 7). In these circumstances the learned trial court should have drawn an adverse inference against the prosecu-tion by giving benefit of doubt to them, as has been held in Laxmi Singh vs. State of Bihar (15). 31. In view of the foregoing discussions, I am of the opinion that in the impugned incident, Yadram and others (complainant party in Cr. Appeal No. 245/83) was aggressor and right of private defence did accrue to the appellants, Bhagwat Singh and others. Moreover the prosecution has miserably failed to prove the guilt against the appellants, Bhagwat Singh and others beyond reasonable doubt. 32. Appeal No. 245/83) was aggressor and right of private defence did accrue to the appellants, Bhagwat Singh and others. Moreover the prosecution has miserably failed to prove the guilt against the appellants, Bhagwat Singh and others beyond reasonable doubt. 32. Consequently the appeal (No. 245/83) of appellants Bhagwat Singh and others is allowed and the impugned judgment convicting and sentencing the appellants, Bhagwat Singh and others, is set aside and they are acquitted of the charges framed against them. They are on bail and need not surrender. Their bail bonds stand cancelled. 33. As regards, Cr. Appeal No. 240/83 filed by Chhitariya, Yadram and Ram Khilari, I may state that in view of the decision taken in Cr. Appeal No. 245/83, supra these appellants, Chhitariya and others have been held to be aggressor on the basis of discussion of the evidence on record. As a legal and logical corrolary to it, the appeal of Chhitarya (No. 240/8 ) has to be failed and dismissed affirming the impugned judgment of their conviction and sentence under appeal. However, since the incident relates back to the year 1978, in view of the accompanying circumstances of the case, appearing on record, I am of the opinion that instead of affirming the impugned sentence of the appellants, I deem it proper to extend the benefit of probation to the appellant sentenced by the trial court. Only appellant Chhitariya has been sentenced to one years R.I. under Section 325, IPC, while releasing other appellants, Yadram and Ram Khilari, after admonition under Section 3 of the Probation of Offenders Act. Therefore, I do not think that after a lapse of about thirteen years from the date of incident, Chhitariya be sent to jail to serve out a short span of sentence less than atleast one years R.I. 34. Consequently, Cr. Appeal No. 240/83 of Yadram and Ram Khilari against their impugned conviction is dismissed and Cr. Appeal No. 240/83 of Chhitariya is partly allowed. His impugned conviction is maintained but instead of sending him to jail, Chhitariya is ordered to be released on probation of good conduct provided he furnishes a personal bond of Rs. Consequently, Cr. Appeal No. 240/83 of Yadram and Ram Khilari against their impugned conviction is dismissed and Cr. Appeal No. 240/83 of Chhitariya is partly allowed. His impugned conviction is maintained but instead of sending him to jail, Chhitariya is ordered to be released on probation of good conduct provided he furnishes a personal bond of Rs. 2000/- together with one surety in the like amount to the satisfaction of the trial Court for six months from the date of execution of the aforesaid bonds, to appear in the trial court when called upon during this period of probation of six months and to keep peace and be of good conduct and behaviour. Chhitariya is allowed three months time to furnish the aforesaid bond in the trial Court failing which the trial court will issue warrant of arrest of Chhitariya to serve out the remaining part of the sentence under challenge in this appeal. To the above extent, the impugned judgment under appeal No. 240/83 stands modified,