JUDGMENT Kamlesh Sharma, J.—These Cross-Appeals are being disposed of by a common judgment since these arise out of the same judgment dated 20-12-1986 passed by the Sessions Judge, Shimla, By the impugned judgment, accused Krishan Lal was convicted under section 304 Part I of the Indian Penal Code and sentenced to five years rigorous imprisonment and a fine of Rs 6,000. In default of payment of fine, he was to suffer further rigorous imprisonment for two years Another accused Sagar Dass was convicted of offence under section 323, I. P. C and sentenced to pay a fine of Rs. 1,000 failing which he was to undergo rigorous imprisonment for a period of six months. The amount of fines to be recovered from both the accused persons was ordered to be paid to the legal heirs of deceased Man Singh The charge against them was under section 302 read with section 34, L P. C for the murder of Man Singh. In their appeal, they have challenged their conviction and sentence. Whereas the State has prayed for their conviction under section 302 read with section 34, I. P. C. in its Cross-Appeal. 2. The case against the accused Krishan Lal and Sagar Dass was initiated on the complaint filed by Sher Singh in Police Post Nankhari on 25-10-1985 at 7.30 p. m. which was later registered as F. I. R. No 189 of 1985 in Police Station Rampur on 29-10-1985. In his complaint, Sher Singh has alleged that on 28-10-1985 at 6.00 p. m, while going to his field, when he reached near the saw mill of Krishan Lal and Sagar Dass, he saw that they dragged Man Singh deceased from his field to the saw mill. According to him, Sagar Dass had caught hold of Man Singh while Krishan Lal gave him beatings with a Danda. Seeing this, to save Man Singh, he rushed to the spot but before he could reach, Man Singh had collapsed on the ground. His face was besmeared with blood. On his enquiry from Krishan Lal and Sagar Dass that why they gave beatings to Man Singh, they pushed him down the wall and Sagar Dass hit him on his head with a stone. As a result of the injury on his head, bleeding started therefrom. His face was besmeared with blood. On his enquiry from Krishan Lal and Sagar Dass that why they gave beatings to Man Singh, they pushed him down the wall and Sagar Dass hit him on his head with a stone. As a result of the injury on his head, bleeding started therefrom. Sher Singh further stated in his complaint that by the time he returned down from the wall, Man Singh had succumbed to his injuries and the accused persons had fled away from the spot. In the meanwhile, his father, Shankar Dass, Kalma Nand and Bhungi Ram reached at the spot and leaving them behind, he came to the Police Post for lodging the report. The reason given by him for the murder of Man Singh by Krishan Lai and Sagar Dass was that they wanted to extend the area of the land where they had installed the saw mill by digging the land of Man Singh to which Man Singh had objected. 3. After investigation, challan was put up and accused persons were charged and tried under section 302 read with section 34, I. P. C. for the murder of Man Singh, who was real brother of Sagar Dass and uncle of Krishan Lal. During the trial, Sher Singh has appeared as PW 4. He has reiterated his occular version how Man Singh was killed by Krishan Lal and Sagar Dass. He has also proved the recovery of Danda from accused Krishan Lal He has stated that the cause of enmity between Man Singh and Sagar Dass was a civil suit pending at Rampur in respect of land belonging to their mother, Smt. Fessi In his cross-examination, he has denied the suggestion made to him on behalf of the accused persons that he, his father Shankar Dass and deceased Man Singh had gone to the Saw Mill with the intention to pick up a quarrel with the accused persons, assaulted Sagar Dass with Danda and when Krishan Lal intervened, they had given beatings to him also, He has admitted that the quarrel between accused persons and Man Singh had lasted for 15-20 minutes He has admitted a document, Ex. PW-4/A and identified the signatures of Sagar Dass, Krishan Lal and Man Singh besides his own in the said document. PW-4/A and identified the signatures of Sagar Dass, Krishan Lal and Man Singh besides his own in the said document. By this document, the parties had agreed that Krishan Lal and Sagar Dass might install a factory below the field of Man Singh but if the retaining wall of his field collapsed due to digging of land by them they would be liable to reconstruct it. Even by lengthy cross-examination of this witness, his account of the homicide of Man Singh at the hands of the accused persons is not shattered 4. Another eye-witness produced by the prosecution is Bhungi Ram (PW 5) who was watching the incident from the roof of his house where he was guarding his maize crop from crows. According to him, deceased Man Singh came to Ms fields which are adjacent to the Saw Mill of the accused persons and asked them why they were digging his land. After exchange of a wordy duel for some time, Sagar Dass dragged Man Singh from his field to the Saw Mill and Krishan Lal gave a Danda blow on his head as a result of which blood started oozing out therefrom. According to this witness, one arm of Man Singh was also broken and he had cried out "Hai Baba Mujhe Maar Diyaa”. At the time of incident, Sher Singh (PW 4) was present at the spot and received stone blow at the hands of Sagar Dass and Krishan Lal Thereafter, Shankar Dass, Kalma Nand and Bui Chand had also came on the spot. He has identified the Danda, Ex. PI, with which Krishan Lai had given blow to Man Singh. In his cross-examination, this witness had admitted that in the year 1967 he had appeared in a case against Sagar Dass which was later on compromised between the parties. He has further admitted that on the day of occurrence, accused persons and their Mistries were engaged in construction work of saw mill. He has given the distance of his house and the place of occurrence as 30-40 yards In his cross-examination, ha has denied the suggestion made to him that it was Sher Singh, Shankar Dass and Man Singh who had come to the spat with the intention to fight with Sagar Dass, attacked him and Krishan Lal had intervened only to save Sagar Dass. On the other hand, he has confirmed that Danda was with Krishan Lal and he had seen him carrying the same when he left the spot. This witness is an old man of 70 years and has no interest to side with either party. Though in a case tried in the Court of Sub-Divisional Magistrate, Rampur, he had appeared against Sagar Dass in the year 1967, yet, after 19 years it could not be a motive to depose against Sagar Dass falsely. He has given a true account of what he saw which remains unshaken in cross-examination. 5. Out of the persons who had reached the spot immediately after the occurrence, one Kalma Nand has been produced as PW 6. According to him, at 5.30 p. m. on the day of occurrence, when he was cutting grass, he heard the cry of Man Singh "Ye Baba Mujhe Mar Diya". On hearing this, he immediately reached at the spot and saw Man Singh lying in a pool of blood At that time Sher Singh (PW 4), Bhungi Ram (PW 5) were present at the spot. The accused persons had fled away but he saw them running. This witness has specifically stated that he saw Krishan Lal carrying a Danda with him. He has also deposed about the litigation between Sagar Dass and Man Singh in respect of the land of their mother Smt. Fessi which had strained their relations. He has withstood the test of cross-examination. He has denied the suggestion that he had a dispute regarding partition of land with Krishan Lal though he had a joint Khata with Krishan Lal. He also denied that he belongs to the faction of Sher Singh and Man Singh and therefore he was deposing against the accused persons. He reiterated that he had seen the accused persons running from a distance of thirty yards. According to him, the distance between the house of Bhungi Ram and the place of occurrence is about 80 yards. 6. Besides proving the eye-witness account and past enmity between Man Singh and the accused persons, the prosecution has proved recovery of the Danda as well as the clothes which the accused persons were wearing at the time of occurrence by producing Lajja Ram (PW 7) and Amar Singh (PW 8). 6. Besides proving the eye-witness account and past enmity between Man Singh and the accused persons, the prosecution has proved recovery of the Danda as well as the clothes which the accused persons were wearing at the time of occurrence by producing Lajja Ram (PW 7) and Amar Singh (PW 8). Sunder Singh, Asstt Sub-Inspector (PW 15), who had initially investigated the case, has also deposed that both the parties had filed complaints before him against each other about four months prior to the incident. 7. So far medical evidence is concerned, Dr. Mrs. Nirmal Vaish (PW 3) had conducted autopsy and her postmortem report is Ex. P-D. She found the following injuries on the dead body of Man Singh :— "(1) Blackish bruise over the right forehead about 1-1/2" above the right eye-brow in the middle extending vertically upwards towards the head which was 1-1/2" long and 1-1/2 cm. broad, and there was compound fracture of the bone below the wound with the specules going in the brain. Brain material slightly coming out of that wound below the bone. (2) There was bruise over the right eye (the whole of the upper lip). (3) Clotted blood around the nose. (4) Scratches over the back of the left elbow. (5) One bruise over the right upper arm in the middle and back about 2 cm. extending vertically downwards. Echymosis under the skin and compound fracture of the middle part of the bone of the upper arm. (6) Upper lip cut on the right side about 1 /3 cm. (7) Lower lip also cut. (8) There were scratches over the back of right shoulder. II-Cranium and Spinal Cord : There was compound fracture of the skull below the site of the bruise which was extending 4" horizontly from the left side. Inner plate was broken and the spicules of the bone injuring the brain. There was blood under the scalp. V-Muscles, Bones, Joints : There was compound fracture of the middle of the bone of right upper arm." 8. In the opinion of Dr. Mrs. Vaish, the cause of death of Man Singh was "shock led by head injury leading fracture of the skull bone directly injuring the brain (vital organ)..." Tue skull injury was sufficient in the ordinary course to cause the death. According to her, these injuries could be caused by blow of Danda. In the opinion of Dr. Mrs. Vaish, the cause of death of Man Singh was "shock led by head injury leading fracture of the skull bone directly injuring the brain (vital organ)..." Tue skull injury was sufficient in the ordinary course to cause the death. According to her, these injuries could be caused by blow of Danda. According to her, the injury on the skull as well as on the arm of the deceased could be caused by Danda Ex. P-l which was shown to her. In cross-examination, she ruled out the possibility that the injury on the skull could be caused by a fall, looking to the nature and shape of the same. The fracture of arm could be caused by fall. She explained that all skull Injuries are not fatal but injury on the head is likely to endanger life in every case. In nut shell, this witness has proved that Man Singh had died of the head injury caused by Danda blow. 9. The accused persons were also examined by Dr. Kulbhushan Sharma (PW 2) and their medical certificates are on record. No external injury was found on the person of Krishan Lai whereas the following injuries were noticed on the person of Sagar Dass :— "1. Contusion purple bluish in colour measuring 4 cm x 3 cm based lateral aspect of lower l/3rd of left arm. 2. A lacerated wound measuring I cm X 2 cm x 2 cm placed on lateral end of left eye-brow covered with clotted blood. 3. Complains of pain over right deltoid region. Tenderness present. No external evidence of injury. 4. Complaint of pain mid sternal region. Tenderness present. No external evidence of injury." Sher Singh (PW 4) was also examined by Dr. M. L. Nanda (PW 1) and his medical certificate is Ex. P-A on record. The following injuries were found on his person s— "1. Abrasions present over lateral aspect of left upper arm in its upper half, upper 1/3rd of left forearm and medical aspect of left wrist, brownish black in colour. 2. Abrasions present over lateral aspect of right elbow joint. 3. Lacerated wound over scalp 8 cm above upper border of left pinna, 1 x 5 X 5 cm clotted blood present. Tenderness positive, reddish black in colour." 10. 2. Abrasions present over lateral aspect of right elbow joint. 3. Lacerated wound over scalp 8 cm above upper border of left pinna, 1 x 5 X 5 cm clotted blood present. Tenderness positive, reddish black in colour." 10. In his cross-examination, the doctor opined that injuries No. 2 and 3 could be caused by a fall Injury No. 3 which is described as injury No. 4 in the medical certificate could not be caused by a stick but by a stone. As such, by the statement of this witness, the prosecution version that Sher Singh was hit by a stone on his head by Sagar Dass stands corroborated. 11. The other prosecution witnesses are formal and their statements need not be referred to. Though the defence version is evident from the suggestions put in cross-examination that Man Singh deceased, Sher Singh and his father, Shankar Dass, were the aggressors, yet, their statements under section 313, Cr. P. C. will make it all the more clear. In reply to Question No. 1 that on 28-10-1985 both Krishan Lal and Sagar Dass were exchanging words with Man Singh deceased, Krishan Lal has stated that it is incorrect and, in fact, he, Sagar Dass and two Mistries were working at the Saw Mill but Sagar Dass has admitted it. Further, in reply to Question No. 2 that Mao Singh deceased asked both Krishan Lal and Sagar Dass that why they were digging his land, Krishan Lal admitted that Man Singh did ask them to which they had replied that they were digging their own land and had already constructed saw mill with the help of Mistries who were working on that day also. The reply of Sagar Dass accused to this question was also in the affirmative and he has further explained that Krishan Lal had filed an application for partition. Therefore, he told Man Singh that if on the visit of Kanungo and Patwari any encroachment is found, he would be compensated and they would vacate the land According to him, one Patwari had come earlier and he had told them that the land belonged to them. Therefore, he told Man Singh that if on the visit of Kanungo and Patwari any encroachment is found, he would be compensated and they would vacate the land According to him, one Patwari had come earlier and he had told them that the land belonged to them. In reply to Question No. 3 that the accused Sagar Dass had dragged Man Singh, both the accused had replied in the negative but Sagar Dass had explained that Man Singh had gone after conceding to his request but again returned along with Sher Singh, From their replies to first three questions, it is admitted by them that they were present at the spot at the time of occurrence and some altercation did take place between them and Man Singh in respect of digging of his land. 12. In reply to Question No. 12, Krishan Lal accused has admitted that there were injuries, including head injury, on the person of Sher Singh but added that his uncle Sagar Dass accused had also suffered some injuries. Further, in reply to Question No 13, he has showed his ignorance whether Man Singh had died on account of skull fracture 4" but explained that he might have died on account of fall. In reply to question No 17, Krishan Lal accused admitted that he had made disclosure statement that he could get recovered his clothes which he had kept under the cot but explained that since they were beaten by the complainant party, they had kept the clothes for showing them to the Police. In reply to other questions, he has not denied civil litigation between Man Singh deceased and Sagar Dass accused on account of the inheritance of the land of their mother, Soil Fessi. According to him, the witnesses have deposed against him due to enmity. He has explained that he had land dispute with other co-sharers. According to him, his land was joint with many, including Man Singh, Shankar Dass, and Kalma Nand. His version of the occurrence, given in reply to question No. 24, is as under i— "...I and Sagar Dass were levelling the land for the last six months We had 80 Chatha of stones on that land, where the Machine was constructed. We had raised a wall of stones. One wall was constructed touching the boundary of Man Singh and the other downwards. We then purchased a Machine. We had raised a wall of stones. One wall was constructed touching the boundary of Man Singh and the other downwards. We then purchased a Machine. Then we constructed foundation. Shankar Dass, Man Singh, Sher Singh and Book Chand did not like that we should install a machine. They were threatening us before the occurrence that they will not allow to install a machine. On 28-10-1985 Shankar Lal, Man Singh and Sher Singh came to our machine with intention to pick up fight with us. Man Singh Shankar Dass and Sher Singh pelted stones Sher Singh was having danda. We suffered injuries as a result of stone. Sher Singh gave danda blow to my uncle Sagar Dass. Man Singh and Slier Singh also gave stone blow to Sagar Dass I then Intervened and I do not know In that fight what type of injuries were caused later on.” 13. In reply to question No 5t that ho pushed Sher Singh and hit him with a stone on his head, Sagar Dass has replied that it was Sher Singh and Shankar Dass who had hurled stones on him and he did not cause any injury to Sher Singh. In reply to further questions, he has denied that he wanted to grab the land of Man Singh. According to him, in fact, they had already constructed a wall separating the land of Mao Singh. He has also not denied that Sher Singh also suffered injuries during the course of occurrence He has admitted that he had injuries as per the Medical Certificate, Ex. P-C and added that the injuries on his person were on account of the beatings given by Sher Singh, Man Singh and Shankar Dass. He has also not denied the fact of litigation between him and Man Singh but explained that his mother, Smt. Fessi, had voluntarily transferred the land to him. According to him, he was innocent and the witnesses had deposed against him due to enmity. He has concluded his statement by saying that he was innocent and the complainant party was at fault which did not want that he and Krishan Lai should establish their factory. 14. According to him, he was innocent and the witnesses had deposed against him due to enmity. He has concluded his statement by saying that he was innocent and the complainant party was at fault which did not want that he and Krishan Lai should establish their factory. 14. From the statements of the accused persons, existence of strained relations due to litigation between the parties on account of the land of Smt. Fessi, mother of Man Singh deceased and Sagar Dass accused, and also due to digging of land of Man Singh deceased by both the accused persons, for installing their saw mill, stands proved. They have admitted their presence at the place of occurrence and wordy duel also but their version is that Man Singh deceased, Sher Singh and his father, Shankar Dass, in order to dissuade them from installing their saw mill had come on the spot with the intention to fight with them. All the three had pelted stones on them and Sher Singh had also given Danda blow to Sagar Dass and Krishan Lai had intervened to save Sagar Dass. They have admitted injuries on Sher Singh and others and death of Man Singh but have denied that he had died of head injury caused by Danda blow given by Krishan Lai accused who has stated that his death might be due to fall. 15. Now, it is to be examined how far the witnesses produced in defence support the version given by the accused persons. Bhagwan Dass (DW 1) who is a sleeping partner in the business of Saw Mill with the accused persons, as admitted by him in his cross-examination, has not stated anything about the occurrence. He has been produced to state that Krishan Lal was of good character,. Michlu (DW 2) has stated that he was working as Mason with the accused persons for the construction of Saw Mill. On the day of occurrence, he alongwith his colleague Mistry, was on the spot when at 5,00 p. m. Man Singh came and enquired from the accused persons that why they hid dug his land and also told that first of all the Masons would be Involved in a case. According to him, Sagar Dass kept mum but Krishan Lal replied that they had not dug his land. According to him, Sagar Dass kept mum but Krishan Lal replied that they had not dug his land. Father, they were constructing a wall as debris had fallen Thereafter Man Singh came down, lifted a handful of earth and declared that he would take that earth to Sauli Devi who would deliver justice. Krishan Lal accused also retorted that he would also approach Devta for justice. Thereafter Man Singh lift the place with handful of earth but Sher Singh came on the road and enquired from Man Singh what was going on. Hearing his reply that accused persons were digging his land, Sher Singh said that they should be punished Man Singh then again returned, lifted a small stone and threw it towards the Saw Mill. The witness further states that be ran away to save himself In cross-examination this witness has admitted that neither Man Singh nor Sher Singh had anything in their hands. He has stated that during the period of 7/8 years when he was making construction of Saw mill on behalf of the accused persons on the land, Man Singh had visited the spot for the first time on the day of occurrence. 16. Another witness is Prabh Dayal (DW 3) who has given an altogether new story. He has stated that on the day of occurrence he saw Man Singh, his wife and Sher Singh (PW 4) in a bus at Mehri Dhaar. Sher Singh had told him that they were to do some Kand (criminal act) on that day. On his asking what was the dispute, Man Singh had told him that in order to stop installation of machine, they were to adopt illegal methods as the land belonged to the Government, According to this witness, when Man Singh went towards his house he followed him after ten minutes and saw him, Krishan Lal and Sagar Dass accused standing by the side of the Saw Mill Man Singh had lifted earth and threatened that he would take it to the diety and see that they are dealt with properly. Krishan Lal also retaliated in the like manner and declared that Devta would not be able to do anything as he had established the machine on his own field. Krishan Lal also retaliated in the like manner and declared that Devta would not be able to do anything as he had established the machine on his own field. Man Singh had come up after lifting the soil but in the meantime Sher Singh followed by his father, Mathu Ram (father of Sher Singh is Shankar Dass) came on the spot and promoted Man Singh that there would be no use to approach the God and instead they should assault the accused. Thereafter Sher Singh jumped towards Man Singh and both of them pelted stones on the accused persons. At this the Masons working on the Machine fled away According to this witness the size of stones was such as these could be handled by hand and the weight of each of the stones was about half a kilogram. On the intervention of this witness, Man Singh and Sher Singh went towards Machine side. The further account as given by this witness is as under i— "...Sagar Dass and Man Singh grappled with each other. Sher Singh also went there. Thereafter Man Singh and Sher Singh both caught hold of Sagar Dass. Sher Singh was having Danda whereas Man Singh was having stone Sher Singh and Man Singh were made to lie down on the ground. Sher Singh has caught Sagar Dass from the throat side and Man Singh has caught hold of Sagar Dass by the hair. Sagar Dass then cried. Krishan Lal accused was at that time in his Dhara and he came. There was a fight between among all the four persons. Later on, I did not go to spot to separate the parties from fighting and they did not agree to my advice, Mathu Ram went straight to the scene of occurrence, and he kept quiet. He separated his son Sher Singh and took him from the scene of occurrence. 6/7 persons also gathered there and they also pelted stones. Thereafter Krishan Lal and Sagar Dass went to their own home. Accused house is at a distance of 100 yards from the place of occurrence. Then, I went to the scene of occurrence, I tried to talk with Man Singh......" 17. As per the statement of Prabh Dayal (DW 3) he was examined by the Police and he had given the same statement to it. Accused house is at a distance of 100 yards from the place of occurrence. Then, I went to the scene of occurrence, I tried to talk with Man Singh......" 17. As per the statement of Prabh Dayal (DW 3) he was examined by the Police and he had given the same statement to it. He goes on to depose in the Court that Sher Singh had picked up Danda from the spot In cross-examination, though he has dented that his name was entered in Basta BE of Police record, yet, he has admitted that he was fined a sum of Rs 50 by the Tribunal at Shimla constituted under the Defence of India Rules and also convicted under section 436, I. P. C and sentenced to pay a fine of Rs. 300 but was acquitted by the appellate Court in the year 1968 He has further admitted that he was involved in a case under section 392, I. P. C. but was discharged. The house of this witness, as admitted by him, is at a distance of 5-6 Kilometres from the village where the occurrence took place. He has denied that he was not at the spot, deposing at the instance of the accused and telling his story about the occurrence for the first time in the Court. He further added that the stone pelted by Man Singh had hit the head of Sagar Dass and blood started oozing therefrom. Besides the above crime record of this witness, the version given by him is contradictory, concocted, an after thought and untrustworthy. 18. Sunder Singh, A. S. I. (DW 6) has brought on record an application dated 16-7-1985 filed by Smt Sulochana wife of accused Krishan Lal on 16-7-1985. This application has been exhibited as Ex. DW 7/A in the statement of Smt. Sulochana who was produced as DW 7. According to her, her husband Krishan Lal accused had also given a similar application in the Court of Sub-Divisional Magistrate complaining that Man Singh and others had damaged their maize crop. She has not stated anything about the occurrence and her statement further confirms that the relations between the parties were strained. According to her, her husband Krishan Lal accused had also given a similar application in the Court of Sub-Divisional Magistrate complaining that Man Singh and others had damaged their maize crop. She has not stated anything about the occurrence and her statement further confirms that the relations between the parties were strained. The factum of filing of the application by accused Krishan Lai in the Court of Sub-Divisional Magistrate has been proved through Dashmi Ram (DW 4), Ahlmad in the Court of Sub-Divisional Magistrate, Rampur According to him, the said application was sent to Station House Officer Rampur, for enquiry and was not received back thereafter. In cross-examination he was unable to tell the contents of the application. Similarly, the partition applications filed by Krishan Lal, Ex. DW 5/A and Ex. DW 5/B have been produced through Surat Ram (DW 5), Assistant, Tehsil Office, Rampur. 19. From the totality of defence evidence, long drawn litigation between the parties has been proved which corroborates the prosecution story. So far defence version that the complainant party was the aggressor is concerned, has not been proved at all. Out of the two eye-witnesses of the occurrence produced in defence, Michlu (DW 2) had fled away only at the stage of altercation and when, according to him, Man Singh had pelted a small stone towards the saw mill. He has however, corroborated the prosecution version to the extent that altercation between the parties was in respect of digging of land of Man Singh by the accused persons. His statement that Sher Singh was not having anything in his hands belies the defence version that Sher Singh had hit Sagar Dass with Danda due to which Krishan Lal had intervened. So far the other eye-witness Prabh Dayal (DW 3) is concerned, as already stated above, his statement deserves outright rejection. 20. After sifting the wheat from the chaff, we will now deal with the submissions of the learned Counsel for the parties. Sh. T. R. Chandel, learned Counsel for the accused persons, has urged that there are a number of circumstances proved on record to suggest that the prosecution Has failed to prove its case. According to him Man Singh, her Singh and Shankar Dass were the aggressors and the accused persons had acted in self defence. His submission is that Man Singh deceased was 45 years old whereas Sagar Dass was older to him. According to him Man Singh, her Singh and Shankar Dass were the aggressors and the accused persons had acted in self defence. His submission is that Man Singh deceased was 45 years old whereas Sagar Dass was older to him. Therefore, it is not believable that Sagar Dass had dragged Man Singh from his field to the Saw mill and caught hold of him to facilitate Krishan Lal to hit him with Danda. On the other hand, if the fight between the parties is admitted, it cannot be believed that Sher Singh, a young man of 23 years of age at the time of occurrence had not participated in the fight most fiercely and had only intervened to save Man Singh deceased as alleged by the prosecution. He submits that the injuries on the person of Sagar Dass have also not been explained by the prosecution and blood stained Danda allegedly recovered was also not sent to the Chemical Examiner. 21. We find no substance in these submissions of Mr. T R Chandel As discussed above, the defence has miserably failed to prove that the complainant party was the aggressor and the accused persons had acted in self defence only. Rather, by the clear cut, reliable and convincing evidence, the prosecution has proved that it was accused Sagar Dass who had dragged Man Singh from his field to the Saw Mill and incapacitated him by catching him when Krishan Lai gave him a Danda blow on his head thereby inflicting the injury which resulted into his death. In view of this conclusion, we need not refer to the case law cited by Mr T. R. Chandel on the point of right of private defence alleged to have been exercised by the accused persons. When there is definite evidence available on the record, the Court cannot go on probabilities considering the ages of the accused persons and the complainant party to come to the conclusion that who could be the aggressor. It is also not correct that the injuries found on the person of Sagar Dass accused have not been explained by the prosecution. Admittedly, the injuries on his person were simple and were caused in the course of dragging as well as scuffle with Man Singh. It is also not correct that the injuries found on the person of Sagar Dass accused have not been explained by the prosecution. Admittedly, the injuries on his person were simple and were caused in the course of dragging as well as scuffle with Man Singh. In this regard the law laid down in Lakshmi Singh and others v. State of Bihar, 1976 Crl Law Journal 1736 and Abdul Waheed v. The State of Maharashtra, AIR 1979 SC 1196, serves as guideline. In the case of Lakshmi Singh (supra), the Supreme Court has enumerated the adverse inference which can be drawn from the non-explanation of injuries sustained by the accused and in Para 11, relying upon an earlier judgment, State of Gujarat v. Bai Fatima, AIR 1975 SC 1478, held :— "...there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries..." 22. Similarly in the case of Abdul Waheed (supra) the Supreme Court observed that mere presence of serious injuries on accused is no ground for accepting the defence version if it is not proved otherwise. The other minor lacunae pointed out in the prosecution story are of no consequence in view of the overwhelming evidence produced by the prosecution proving their case beyond reasonable doubt. 23. The next question arises that from the evidence on the record the accused persons are guilty of which offence. Sh. M. S. Chandel, learned Assistant Advocate General, appearing on behalf of the State, which is an appellant in one appeal and respondent in the other, has urged that the accused persons are guilty of an offence under section 302, I PC. read with section 34, I. P.C. but his submission is without any force as it is proved on record that there was no pre-meditation and the fight between the accused persons and Man Singh deceased was sudden in a heat of passion. Sagar Dass accused had only dragged Man Singh, had pushed Sher Singh and hit him with a stone on his head. Sagar Dass accused had only dragged Man Singh, had pushed Sher Singh and hit him with a stone on his head. On the other hand, Krishan Lal accused had given a Danda blow causing head injury to Man Singh resulting in his death but it cannot be said that he had any intention to cause death of Man Singh or to cause such bodily injury which was likely to cause his death and, therefore, he is guilty of culpable homicide amounting to murder. Rather, on the facts proved on record, the case falls under exception (4) to section 30C, I PC. making the offence committed by Krishan Lal culpable homicide not amounting to murder. Even according to the prosecution, there was no pre-meditation and Krishan Lal had given Danda blow on the head of Man Singh in a sudden fight. He has not taken any undue advantage or acted in a cruel or unusual manner in committing the offence. But it cannot be denied that while giving Danda blow on the head which resulted into compound fracture of the skull injuring the brain, Krishan Lal had the knowledge that such bodily injury was likely to cause death of Man Singh. As such he has committed culpable homicide of Man Singh which is punishable under Part II of section 304, I.P C. The findings of the Sessions Judge are modified to that extent and Krishan Lal is liable to be punished under Part II of section 304, I.P.C. So far sentence is concerned, we are not inclined to interfere. 24. In the result both the appeals are dismissed. Appeals dismissed.