Honble SHARMA, J.–All the twelve appellants were indicted before the learned Additional Sessions Judge, Bayana Distt. Bharatpur for having committed murder of Sonpal and Vijay Singh in Sessions Case No.42/1989. Vide judgment dated 17.1.1994, they were found guilty, convicted and sentenced by the learned trial judge as under : 1. Pratap 2. Chetram 3. Babu U/s. 302 IPC to suffer imprisonment for life and fine of Rs. 2000/- U/s. 148 IPC to suffer one year RI. U/s. 325/149 IPC to suffer two year RI. and fine of Rs. 1000/-. U/s. 324/149 IPC to suffer one year RI. U/s. 323 IPC to suffer six months RI. (In default of payment of fine to further suffer one year RI. 4. Mahendra 5. Amarchand S/o Mungilal 6. Chimman U/s. 302/149 IPC to suffer imprisonment for life and fine of Rs. 2000/- 7. Lajwanta 8. Rajendra 9. Amarchand s/o Kesso 10. Man Singh U/s. 148 IPC U/s. 325/149 IPC U/s. 324/149 IPC U/s. 323 IPC to suffer two year RI. and fine of Rs. 1000/-. to suffer one year RI. to suffer six months RI. to suffer one year RI. (In default of payment of fine to further suffer one year RI. + 11. Samandar U/s. 302/149 IPC to suffer imprisonment for life and fine of Rs. 2000/- U/s. 148 IPC to suffer one year RI. U/s. 325/149 IPC to suffer two year RI. and fine of Rs. 1000/-. U/s. 324 IPC to suffer one year RI. U/s. 323 IPC to suffer six months RI. (In default of payment of fine to further suffer one year RI. + 12. Mungilal U/s. 302/149 IPC + U/s. 148 IPC + U/s. 325/149 IPC + U/s. 324/149 IPC + U/s. 323 IPC + (In default of payment of fine to further suffer one year RI. All the sentence were directed to run concurrently. (2). Against this judgment of conviction and sentence that the present action for filing the appeal has been resorted to by the appellants. (3). The prosecution case is woven like this. On the basis of Parcha-bayan (Ex.P.3) Badan Singh (PW.5), FIR No. 86/88 under Sections 147, 148, 149, 323, 302 IPC came to be registered by the Police Station Uchhain, Bharatpur. Against this judgment of conviction and sentence that the present action for filing the appeal has been resorted to by the appellants. (3). The prosecution case is woven like this. On the basis of Parcha-bayan (Ex.P.3) Badan Singh (PW.5), FIR No. 86/88 under Sections 147, 148, 149, 323, 302 IPC came to be registered by the Police Station Uchhain, Bharatpur. In the Parcha-bayan, Badan Singh, who was admitted in General Hospital Bharatpuron August 24, 1988 stated that in the morning around 10 a.m. when he along with his family members were digging the land in order to drain out the rain water accumulated in front of their house, Amar Chand, Chetaram. Rajendra, Mahendra, Mungi Lal, Man Singh, Samundra, Chiman, Babu, Amar son of Kesso, Lajwanta, Omi and Durga Pandit armed with lathies and pharsas came over there and started marpit. Samundra gave pharsa blow on the head of Badan Singh, whereas Omi and Durga inflicted blowswith lathi and pharsa. Chetram and Partap inflicted pharsa blows on the head of Vijay Singh. Amarchand and Lajwanta gave lathi blows on the person of Vijay Singh, Babu inflicted pharsa blow on the head of Sonpal and all the persons gave indiscriminate beating with lathies and pharsas. Women of his family were also beaten in the occurrence. On hearing hue and cry, the villagers intervened and saved his life. Vijay Singh and Sonpal became unconscious and all the injured persons were taken to Bharatpur Hospital, Commencing investigation, the investigating officer inspected the site, arrested accused, recovered the weapons of offence at their instance, recorded the statements of witnesses under section 161 Cr.P.C. and on conclusion of investigation, charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Bayana. Charges under Sections 148, 302, 302/149, 324, 325, 323 and 326 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution examined as many as 20 witnesses in support of its case. Thereafter the statements of the appellants under section 313 Cr.P.C. were recorded. The appellants denied the allegations and claimed innocence. Thereafter 8 defence witnesses were examined and the learned trial judge after hearing the final submissions convicted, and sentenced the appellants as indicated hereinabove. (4). At the outset, we would like to indicate the nature of the evidence led by the prosecution. The appellants denied the allegations and claimed innocence. Thereafter 8 defence witnesses were examined and the learned trial judge after hearing the final submissions convicted, and sentenced the appellants as indicated hereinabove. (4). At the outset, we would like to indicate the nature of the evidence led by the prosecution. To begin with there is a central evidence of five injured eye witnesses Mst. Ramdei (PW.1), Badan Singh (PW.5), Mst. Kesar (PW.6), Harish Chand (PW.7) and Shiv Singh (PW.12). This evidence is sought to be corroborated by Girdhari Lal Investigating Officer (PW.15), Rakesh Saxena, Addl. S.P. (PW.20) Murari Lal (PW. 17) and Kamlesh Kumar (PW.18) Dr. Ajay Kapoor (PW. 19) examined the injuries of the injured persons and conducted autopsy on the dead bodies. (5). Let us now scan the testimony of the witnesses through whom the prosecution has to establish that the case against the appellants has been proved beyond reasonable doubt. A close look at the statements of Ram Dei (PW.1), Badan Singh (PW.5) and Shiv Singh (PW.12) demonstrates that there was no previous enmity or dispute between the appellants and the complainant party. When Badan Singh, Vijay Singh and Son Pal (since deceased) started digging the mud wall to let out the accumulated rain water, the occurrence had taken place. Mst. Kesar (PW.6) in her deposition stated that the accused obstructed the flow of water by putting a mud wall. As the obstruction by mud wall was made on the thorough fare, Vijay, Son Pal and Badan started demolishing the mud wall. Girdhari Lal Investigating officer (PW.15) in his cross examination stated that Badan Singh, Son Pal and Vijay Singh started digging up the mud wall at point `X of site plan (Ex. P.2) and the accumulated water had entered the nohra where the huts of Mungi Lal, Chimman etc. stood and their fuel wood etc. were stored. This witness further deposed that as the road level was higher, it was nature for the rain water to accumulate. Harish Chand (PW.7) deposed that the dispute was started over water. Vijay Singh and others were draining the water out by the side of the road. As soon as he bent down, the accused started abusing. (6). It is contended by the learned counsel for the appellants that the rain water had accumulated in the `dagra because, the level of the road was higher than that of the `dagra. Vijay Singh and others were draining the water out by the side of the road. As soon as he bent down, the accused started abusing. (6). It is contended by the learned counsel for the appellants that the rain water had accumulated in the `dagra because, the level of the road was higher than that of the `dagra. Rather than effect a cut in the road, the deceased and Badan Singh had dug up the mud wall that protected the nohra of the accused. The accumulated water caused inconvenience to both the parties, not the complainant party alone. Instead of going and approaching the Panchayat or other authorities for draining out the water from the `dagra the deceased and Badan Singh took the law in their own hands to dig up the wall of accused Mungi Lals Nohra which would have damage their huts and other valuable property. There is no evidence that the accumulated water posed any threat or danger of damage to the property of the deceased, mere inconvenience was not sufficient for the complainant party to take law in their own hands. The accused therefore, had a right to resist the mischievous act of the deceased and others to protect their house and health and it was the complainant party including the deceased, who had provoked the accused to take recourse to violence. It is next urged by the learned counsel that from the testimony of Badan Singh (PW.5) and Harish Chand (PW.7) it is established that the tractor and trolly carrying the injured had stopped in front of Police Station Ucchain but the report was not lodged. Thus there is a deliberate delay in lodging the FIR which creates doubt in the prosecution story. Learned counsel further canvassed that though there is evidence on record that many people from the village had gathered and intervened yet no independent witness from the village has been produced and only interested witnesses from the family of the deceased have been examined, who made material improvements in their statements and the true version of the incident did not come before the court. On a critical scrutiny of the eye witnesses as regards the beating of the two deceased as well as injured Ram Dei (PW.1) Badan Singh (PW.5) Kesar (PW.6) Harish Chand (PW.7) and Shiv Singh (PW.12) it is apparent that they have not narrated the actual genesis of the occurrence. They have mixed truth with falsehood to such an extent that one can not be separated from other. The witnesses have not only tried to hide their provocative action, but have also made attempt to aggravate the seriousness of the incident by introducing weapons like `Pharsas being used by some of the accused, where as from the medical evidence causing injuries by sharp weapons has not been established. It is also contended by the learned counsel that no overt act was attributed to as many as five accused in Parcha Bayan, Ex.P.3. The spot of occurrence is the place where all the twelve Jatav appellants lived and therefore, their presence was most natural. Hence there could be no formation of any `unlawful assembly for the purpose of committing any offence and resistence against an unlawful act of the deceased and the injured in damaging the property of the appellant can not termed as formation of an unlawful assembly to commit any offence. It is lastly urged by the learned counsel that under the provisions of clauses 1 and 4 of section 105 IPC, the right of defence of their property had accrued to the appellants and they were justified in resisting the illegal acts of the deceased and the injured by force. Thus all the appellants deserve to be acquitted. (7). Per contra learned Public Prosecutor supported the impugned judgment of conviction and canvassed that the appellants had committed the offence in a calculated manner with premeditation and they have been rightly convicted by the trial judge. The contradictions in the statements of the prosecution witnesses are not material and the presence of the witnesses at the place of incident is quite natural. (8). We have given anxious consideration to the rival submissions. (9). Deceased Sonpal, as per the injury report Ex.P.43, sustained incised would measuring 3 cm x 2cm. x 2 cm on temporal bone. Another injury on the forehead was laceration measuring 4cm x 2cm. x 1cm and the third injury was a bruise 4 cm x 2 cm on the right knee. (9). Deceased Sonpal, as per the injury report Ex.P.43, sustained incised would measuring 3 cm x 2cm. x 2 cm on temporal bone. Another injury on the forehead was laceration measuring 4cm x 2cm. x 1cm and the third injury was a bruise 4 cm x 2 cm on the right knee. Deceased Vijay Singh, according to injury report Ex.P.46 received following injuries- (i) Incised would 5cm x 2cm x 1 cm on centre of skull. (ii) Incised would 3 cm x 1 cm x 1 cm or right side of skull. (iii) Laceration 2 cm x 1 cm x 1 cm on fore head. (iv) Bruise 5 cm x 2 cm on right arm. (v) Bruise 5 cm x 2cm on right fore arm. (vi) Bruise 4 cm x 2 cm on left arm. (vii) Bruise 4 cm x 2 cm on left fore arm. Vijay Singh died on August 24, 1988 where as Sonpal expired on August 28, 1988. Cause of their death as per the post mortem reports Ex. P. 48 and Ex.P.49 was head injuries sustained by them. Dr. Ajay Kapoor (PW.19) deposed that injuries were antimortem in nature and sufficient in ordinary course of nature to cause death. Badan Singh (PW.5) as per injury report Ex.P.45 received one incised wound (3cm. x 2cm. x 2cm.) on temporal bone, one laceration (4cm. x 2cm x 1 cm.) on forehead and one bruise (4cm x 2cm) on right knee. Harish Chand (PW.7) sustained two bruises on right hand as per injury report Ex.P.44. Smt. Kesar (PW.6) received one contusion on left elbow and one bruise on right forearm as per injury report Ex.P.43. Smt. Ram Dei (PW.1) received one incised wound (5cm. x 1cm. x 1cm.) on left parietal bone and two bruises on right arm according to injury report Ex.P.41. Shiv Singh (PW.12) sustained two bruises on right elbow and on left back and one tear injury on left foot as per injury report Ex.P.47. Except the grievous injury sustained by Smt. Kesar on right ulna, all the injuries caused to the injured witnesses were found simple in nature. (10). Shiv Singh (PW.12) sustained two bruises on right elbow and on left back and one tear injury on left foot as per injury report Ex.P.47. Except the grievous injury sustained by Smt. Kesar on right ulna, all the injuries caused to the injured witnesses were found simple in nature. (10). On analysing the prosecution evidence in respect of beating of deceased Vijay Singh we find that Ram Dei (PW.1) and Badan Singh (PW.5) both attributed Pharsa blows on the head to the appellants Pratap and Chetram and lathi blow on head to appellant Mungi Lal, as also lathi blows on the hands to appellants Amarchand and Lajwanta, Badan Singh (PW.5) in the Parcha Bayan (Ex.P.3) did not state that Mungilal gave any lathi blow to Vijay Singh, much less on head and Amar Chand and Lajwanta giving any lathi blows on the hands of Vijay Singh, Besides this, Badan Singh did not attribute any overt act against any of the injured by the appellants Mungi Lal, Mahender, Man Singh and Chimman. Mst. Kesar (PW.6) attributed a lathi blow on the head of Vijay Singh to Mungi Lal, which she had not stated to the police in Parcha Bayan Ex.D.5, as also the fact that Amar Chand and Lajwanta had given lathi blows on his hands. Even in her statement under Sec. 161 Cr.P.C. (Ex. D.6) she did not say that Lajwanta and Amarchand gave any lathi blows on his hands. In portion `M to N of Ex.D6 she attributed an injury on the mouth of Vijay Singh to accused Durga but at the trial denied his presence, even she insisted that accused Omi and Durga were not present at the time of occurrence, against her version given to the police and thereby contridicting the version of Ram Dei and Badan Singh. Harish Chand (PW.7) in his statement before the police (Ex.D. 11) included accused Omi and Durga among assailants but at the trial he omitted their names. He thereby contradicted Ram Dei and Badan Singh who before the trial court attributed specific overt act to Omi and Durga. Shiv Singh (PW.12) did not say as to which part of Vijay Singhs body was hit by Pharsa used by Pratap or Mungilal gave any lathi blow to Vijay Singh that hit him on his head. This witness contradicted witnesses Mst. Ram Dei, Badan Singh, Mst. Shiv Singh (PW.12) did not say as to which part of Vijay Singhs body was hit by Pharsa used by Pratap or Mungilal gave any lathi blow to Vijay Singh that hit him on his head. This witness contradicted witnesses Mst. Ram Dei, Badan Singh, Mst. Kesar and Harish Chand in regard to lathi blows on the hands of Vijay Singh. He attributed two lathi blows on the same hand of Vijay Singh by Amar Chand and Chimman, which is not the case of earlier four witnesses. Lajwanta is not named and Chimman has been substituted in his place. The earlier version of this witness before the police in his statement under Section 161 Cr.P.C. (Ex.D.8) was that he saw Chetram with a Katta and not Pharsa. (11). In respect of beating of another deceased Sonpal, Ram Dei (PW.1) attributed Pharsa blow on the head to appellant Babu and lathi blow on the leg to appellant Chimman whereas in portion A to B of her police statement Ex.D.2, she attributed a lathi blow to accused Durga. In the Parcha Payan Ex.P.3 Badan Singh (PW.5) had not stated that Chimman gave any lathi blow to Sonpal, much less on legs particularly on left foot. In his earlier police statements Ex.D5 and Ex.D.6, Mst. Kesar (PW.6) showed pharses with only three accused Chetram, Samunder and Pratap. In respect of accused Babu, she stated that he gave a lathi blow on the mouth of Son Pal. She attributed pharsa blow on Sonpals legs to accused Durga, while at the trial she denied the very presence of Durga at the time of the incident. (12). Badan Singh (PW.5) as already stated had three injuries on his person. One by sharp weapon and two by blunt object. All the three injuries were simple in nature. Badan Singh attributed two pharsa blows on his head to accused Samunder and Omi and one lathi blow on his leg to Durga. Ram Dei (PW.1) also corroborated this version. But in Ex.P.3 and Ex.D.3 Badan Singh had not stated that Durga inflicted lathi blow on his leg. Mst. Keshar (PW.6) attributed one pharsa blow on the head of Badan Singh to accused Samandar and another to accused Mahender and lathi blow on the leg to accused Amar which was not her case in in Ex.D.6. Harish Chandra (PW.7) did not name Omi and Durga among the assailants. Mst. Keshar (PW.6) attributed one pharsa blow on the head of Badan Singh to accused Samandar and another to accused Mahender and lathi blow on the leg to accused Amar which was not her case in in Ex.D.6. Harish Chandra (PW.7) did not name Omi and Durga among the assailants. He attributed only one Pharsa blow on the head of Badan Singh to accused Samander and lathi blow on the leg to accused Mahender. Shiv Singh (PW.12) attributed injury on the right hand of Badan Singh to accused Amar Chand whereas Badan Singh did not sustain any injury on the right hand. (13). Ram Dei (PW.1) and Badan Singh (PW.5) have shown five accused Pratap, Chet Ram, Babu, Samanderand Omi as armed with `Pharsas whereas according to Mst. Kesar (PW.6) Harish Chand (PW.7) and Shiv Singh (PW.12) only four accused Pratap, Chetram, Babu and Samander had Pharsas. However, Shiv Singh (PW.12) in his Parcha Bayan (Ex. D.8) had shown Katta with accused Chetram. Mst. Kesar (PW.6) in her earlier statement Ex.D.6 had shown Babu armed with lathi. In that statement she did not say that Samander was armed with `Pharsa. (14). Fact situation that emerged from the analysis of the evidence may be summarised thus - (i) There was no ill will or enmity of any sort between the deceased and the accused appellants prior to the incident. (ii) The incident took place all of sudden without any premeditation on account of digging up the mud wall by the deceased to drain out the naturally accumulated rain water. The accumulated water had entered the nohra where the huts of Mungilal and Chimman stood and their fuel wood and other goods were stored. Being provoked by this action the accused resorted the violence. (iii) At the spot of occurrence all the appellants had their places of abode. (15). Having closely scrutinised the prosecution evidence we are of the opinion that the prosecution has failed to establish that the accused appellants formed unlawful assembly for the purpose of committing any offence. As the appellants resided near the spot of occurrence, their presence at the time of incident was quite natural. If any resistance was put by them after being provoked by the deceased by digging up the mud wall, it cannot be termed as formation of unlawful assembly to commit any offence. As the appellants resided near the spot of occurrence, their presence at the time of incident was quite natural. If any resistance was put by them after being provoked by the deceased by digging up the mud wall, it cannot be termed as formation of unlawful assembly to commit any offence. In the Parcha Bayan of Badan Singh (Ex.P.5) no overt act was attributed to appellant Rajender, Mungi lal, Mahendra, Man Singh and Chimman. Thus we can safely hold that the common object of appellants was not to kill Vijay Singh and Sonpal. In the ultimate analysis of the evidence we find that the appellants Pratap and Chetram are guilty of inflicting Pharsa blows on the head of deceased Vijay Singh whereas appellant Babu gave Pharsa blow on the head of deceased Sonpal and they are individually responsible for the said injuries. In the Parcha Bayan (Ex.P.3) Badan Singh only stated that Amarchand and Lajwanta gave lathi blows on the person of Vijay Singh but in his statement before the trial judge he deposed that Amar Chand caused injury on right hand whereas Lajwanta gave lathi blow on the left hand. Mst. Kesar (PW.6) in Ex.D.6 did not say that Lajwanta and Amarchand gave any lathi blows to Vijay Singh. We have before us two persons of the name of Amar Chand, one Amar Chand s/o Mungi Lal and another Amarchand s/o Kesso and it is not established as to who was responsible for the injury. Another twist to the story was given by Shiv Singh (PW.12) who deposed that Amar Chand and Chimman gave lathi blows on the hand of Vijay Singh. He did not name Lajwanta and substituted Chimman in his place. Thus the prosecution has failed to establish as to who were the authors of injuries caused on the hands of Vijay Singh, beyond reasonable doubt. We therefore give benefit of doubt to appellants Mahendra, Amarchand, S/o Mungi Lal, Chimman, Lajwanta, Rajendra, Amarchand s/o Kesso, Man Singh and Mungilal. Badan Singh However attributed his injury on head to Samander and we hold that the offence against Samander under Section 324 IPC is established beyond reasonable doubt. (16). That brings us to the submission of the learned counsel in regard to right of private defence in view of Section 105 IPC. Badan Singh However attributed his injury on head to Samander and we hold that the offence against Samander under Section 324 IPC is established beyond reasonable doubt. (16). That brings us to the submission of the learned counsel in regard to right of private defence in view of Section 105 IPC. We are of the considered opinion that in the facts and circumstances of this case where the mud wall was already damaged by the deceased the accused and no right of private defence. Their Lordships of the Supreme Court in Rajesh Kumar vs. Dharmvir (1), indicated that so long as the complainant party continued in the commission of mischief, the accused would have been entitled to exercise their right of private defence of property, but after the damage was done the accused had no right of private defence of property, which means that when they attacked the complainant party in the lane, after the damage of the outer door of their house, they were aggressors. (17). Having regard to the totality of the circumstances and looking to the nature of injuries sustained by the deceased Vijay Singh and Sonpal, we are of the view that Pharsa blows were inflicted by the accused appellants Pratap, Chet Ram and Babu with the intention to cause such bodily injury as was likely to cause the death but their offence comes in the purview of culpable homicide not amounting to murder because Exception 4 of Section 300 IPC is attracted as there was no ill will or enmity between the deceased and the accused, the offence was committed without premeditation in a sudden fight, in the heat of passion upon a sudden fight, in the heat of passion upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner and the offence therefore would fall u/Sec. 304 Part-I IPC. (18). In the result we allow the appeal of appellants Mungilal, Mahendra, Amar Chand s/o Mungi Lal, Chimman, Lajwanta, Rajendra, Amar Chand s/o Kesso and Man Singh, set aside their conviction and sentence under Sections 302/149, 148, 325/149, 324/149 and 323 IPC and acquit them from the said charges. Appellant Mungi Lal is in jail, he shall be set at liberty forthwith if not required in any other case. Appellant Mungi Lal is in jail, he shall be set at liberty forthwith if not required in any other case. The other appellants Mahendra, Amar Chand s/o Mungi Lal, Chimman, Lajwanta, Rajendra, Amarchand s/o Kesso and Man Singh are on bail, they need not surrender and their bail bonds stand discharged. Appeal of appellant Samander is partly allowed, his conviction and sentence under Sections 302/149, 148, 325/149 and 323 IPC stands set aside and he is acquitted from the said charges. While confirming his conviction under Section 324 IPC we sentence him to period already undergone by him. He is on bail, he need not surrender, his bail bonds stand discharged. Appeal of appellants Pratap, Chetram and Babu is partly allowed, we alter their conviction from one under section 302 IPC to section 304 Part I IPC and sentence each of them to suffer rigorous imprisonment for ten years and fine of Rs. 2000/-, in default to further suffer one year R.I. However, we set aside their conviction under sections 148, 325/149, 324/149 and 323 IPC.