JUDGMENT 1. - D.B. Criminal Appeal No. 141/83 has been filed by Keshu Dan, Phoos 1 Dan, Madan Dan, Narayan Dan @ Narayan Singh, Shakti Dan and Shambhu Dan and D.B. Criminal Appeal No. 23/84 has been preferred by the State against a judgment dated 4.4.1983 by the learned Sessions Judge, Bikaner whereby all the six appellants were found guilty for the offences punishable under sections 148/148 r/w Section 149, 323/323 r/w Section 149, 324/324 r/w Section 149. 325/325 r/w Section 149, 326/326 r/w Section 149 and 304 Part 11/304 Part II r/w Section 149 of the IPC and three accused persons, viz. Umardan, Biwardan and Kishandan were acquitted of all the charges. 2. According to the prosecution story on 19.9.1980, PW-1 Narayan Dan 10 went to police station Napasar and at 3 p.m. lodged the oral FIR Ex. P/1. According to the FIR the incident occurred at 2 p.m. on 19.9.1980 on the field of PW-2 Gopi Dan where the six appellants and the accused Umar Dan @ Amar Dan reached in a camel-cart and attacked Keshu Dan, Narayan Dan, Stiankar Dan, Arjun Dan, Jagdish, Pabu Dan and Ramesh Dan. The accused Madan Dan allegedly inflicted injury by a 'Kassi' to the head of Keshu Dan, who was fatally wounded and fell down. Thereafter, the accused Keshu Dan, Narayan Dan and Phoos Dan further inflicted injuries to him by 'Lathis'. Shakti Dan, thereafter, inflicted injury to PW-2 Gopi Dan by a 'Kassi'. Shambhu Dan and Amar Dan caused injuries to Arjun Dan and Shankar Dan. Shambhu Dan inflicted injury by a 'Lathi' to the right hand of Narayan Dan. Amar Dan inflicted injury to Pabu Dan and Phoos Dan inflicted injury to Ramesh Dan. It was made clear in the FIR that the injured persons Arjun Dan, Shankar Dan and Jagdish in their self-defence caused injuries to the accused persons. Further, it was alleged that Biwar Dan and Kishan Dan were part of a conspiracy which was hatched to murder Keshu Dan. According to the FIR the injured persons were initially transported in a camel-cart and thereafter, were shifted to a jeep and were taken to the hospital at Napasar where -Keshu Dan was declared dead and other injured persons were medically examined. A case under Sections 147, 148, 149, 447, 307, 302 and 120B of the IPC was registered. According to the FIR the injured persons were initially transported in a camel-cart and thereafter, were shifted to a jeep and were taken to the hospital at Napasar where -Keshu Dan was declared dead and other injured persons were medically examined. A case under Sections 147, 148, 149, 447, 307, 302 and 120B of the IPC was registered. During investigation it was found that so far as the three accused persons Umar Dan, Biwar Dan and Kishan Dan were concerned, they were entirely innocent and no challan was filed against them. The six appellants were challaned for the offences punishable under Sections 148, 149, 307 and 302 of the IPC. Subsequently, the trial court ordered to take cognizance against the said Umar Dan, Biwar Dan and Kisnan Dan and all the nine were put to trial Bivar Dan and Kishan Dan were charged for the offences punishable under Sections 302 r/w Section 149 of the IPC. The other seven accused persons were charged for the offences punishable under sections 148/148 ON section 149, 323/323 r/w Section 149, 325/325 r/w Section 149, 326/326 r/w Section 149, 307/307 r/w Section 149 and 302/302 r/w Section 149 of the IPC. All the nine pleaded not guilty. The prosecution side examined 17 witnesses. Babulal, the Addl. Superintendent of Police was examined as court witness and PW-1 Ganesh Dan Ojha (Patwari) was examined in defence. 3. The defence version as disclosed during the statements recorded under Section 313 of the Cr.PC. was to the effect that the field in question did not belong to Gopi Dan and the same was in the cultivation of the accused madan Dan @Madan Singh, Keshu Dan and Narayan Singh. According to the defence version the three accused persons Keshu Dan, Madan Dan and Narayan Dan were present in the field at the time of incident and they were attacked by the deceased Keshu Dan and PW-1 Narayan Dan, PW-2 Gopi Dan, PW-4 Shankar Dan, PW-7 Arjun Dan, and PW-8 Pabu Dan. According to the defence version PW-5 Jagdish and PW-15 Ramesh Dan were. not present at the time of the incident and both are created witnesses. According to the defence version PW-5 Jagdish and PW-15 Ramesh Dan were. not present at the time of the incident and both are created witnesses. Further, the defence version was that the accused Shambhu Dan was working in the near by field belonging to his brother-in-law and he rushed to the spot after hearing the hue and cry and when he tried to intervene he was also belaboured by the said persons belonging to the complainant side. According to the defence version the five accused persons. viz. Phoos Dan, Shakti Dan, Urnar Dan, Biwar Dan and Kishan Dan were not present in the village at the time of the incident arid all the five were implicated falsely. According to the defence version no FIR was lodged on 19.9.1980 and the FIR Ex. P/1 was actually registered' on 20.9.1980 but was dishonestly antedated as if it was lodged on 19.9.1980. 4. The learned Trial Court heard the arguments and delivered the judgment on 4.4.1983. Umar Dan, Biwar Dan and Kishan Dan were acquitted of all the charges. The appellants were acquitted of the charges punishable under Sections 307-307/149 and 302-302/149 of the IPC. However, all the Six appellants were found guilty for the offences as mentioned in the beginning. Keshu Dan, Phoos Dan, Madan Dan, and Narayan Dan were released against the sentences which had already been undergone. The remaining two viz Shakti Dan and Shambhu Dan were ordered to undergo rigorous imprisonment for 12 months for the offence punishable under Section 148/148 r/w Section 149 of the IPC. Both were ordered to undergo rigorous imprisonment for two years each for the offence punishable under Section 325/325 r/w Section 149 of the IPC. For the offences punishable under Section 326/326 r/w Section 149 and for the offence under Section 304 Part II and 304 11/149 of the IPC , they were ordered' to undergo rigorous imprisonment for two and a half years on each count. Feeling aggrieved all the six said convicted persons and the State have come up in appeal. Keshudan and Naraindan @ Narain Singh to whom the injuries to the head of i the demand were attributed by prosecution witnesses died during the pendency or appeal and hence, so far as these two are concerned the appeals have abated. 5. Feeling aggrieved all the six said convicted persons and the State have come up in appeal. Keshudan and Naraindan @ Narain Singh to whom the injuries to the head of i the demand were attributed by prosecution witnesses died during the pendency or appeal and hence, so far as these two are concerned the appeals have abated. 5. We have heard the learned Public Prosecutor for the State and the learned counsel for the appellants and have gone through the record of the trial court. So far as the happening of the incident is concerned the same is not in dispute. The prosecution story has been to the effect that all the seven persons named in the FIR, came in a camel-cart and attacked Keshu Dan, Gopi Dan, Arjun Dan, Shankar Dan, Pabu Dan, and Ramesh Dan, in the field to under the cultivation of Gopi Dan. The defence version is to the effect that he field in question was never cultivated by Gopi Dan or any person belonging to the complainant side. According to the defence version the field in question belonged to the accused Keshu Dan and Karni Dan. According to the defence contention the accused Madan Singh had gone in adoption to the said Karni Dan and after death of Karni Dan, being his sole legal representative was the lawful 'Khatedar' of the field in question and the persons of complainant side came armed with Lathis and attacked and injured the four accused persons namely Keshu Dan, Narayan Dan, hambhu Dan, and Madan Dan. In this way it is clear that during the leident, persons of both the skies received injuries and each side has come 'ith the contention that the other side was the aggressor and they acted in self defence. It would be desirable to make it clear here that according to the prosecution story the field in question belonged to Gopi Dan and was cultivated by Gopi Dan. PW-2 Gopi Dan, PW- 4 Shankar Dan, PW-7 Arjun Dan and PW-8 Pabu Dan are brothers. According to the prosecution story, the deceased Keshu Dan, was approached on 17.9.1980 by Gopi Dan to help him in removing the weeds from the said field of Gopi Dan and consequently, PW-1 Narayan Dan, PW.5 Jagdish, PW-15 Ramesh Dan, who are the sons of the deceased Keshu Dan, were working in the said field to help Gapi Dan. According to the prosecution story, the deceased Keshu Dan, was approached on 17.9.1980 by Gopi Dan to help him in removing the weeds from the said field of Gopi Dan and consequently, PW-1 Narayan Dan, PW.5 Jagdish, PW-15 Ramesh Dan, who are the sons of the deceased Keshu Dan, were working in the said field to help Gapi Dan. On 19.9.1980 the deceased Keshu Dan, came to the field and brought food to his three sons Narayan Dan, Jagdish and Ramesh Dan. Similarly, food for Gopi Dan. Shankar Dan and Arjun Dan was brought by their brother PW-8 Pabu Dan. According to the prosecution story, after the food was consumed and the work was resumed, it was at about 2 p.m., that the seven persons named in the FIR came in a camel-cart and attacked them by 'Kassis' and 'Lathis'. In this respect it will not be out of place to mention here that the story of the field belonging to Gopi Dan was not believed by investigating officer and consequently, no challan was filed for the offence punishable under Section 447 of the IPC, though the case had initially been registered in respect of said offence also. During the prosecution evidence, no 'Patwarror Revenue Officer was called to substantiate the allegation made in the FIR to the effect that the disputed field belonged to Gopi Dan or which was actually cultivated by him. The name of the 'Patwari' Mangi Lai finds place in the list of witnesses but during the trial neither Mangi Lai was as examined nor any revenue record was produced to suggest that the disputed field belonged to any person belonging to the complainant side. The prolecution side examined PW-13 Jethu Singh and PW-17 Jasroop to establish its case on the point of possession of the field in dispute. However, no person of the neighbourhood was examined by the prosecution to so establish that the field in question was actually cultivated by Gopi Dan or by his brothers. In the site plan, the field of Bhanwar Dan is shown in the East and the field of Ganpat Dan is shown in the west. The field of Jethu Singh is shown in the southern side of the disputed field. But these neighbours have not been examined by the prosecution. In the site plan, the field of Bhanwar Dan is shown in the East and the field of Ganpat Dan is shown in the west. The field of Jethu Singh is shown in the southern side of the disputed field. But these neighbours have not been examined by the prosecution. PW-13 Jethu Singh does not belong to village 'Sinthal' and actually belongs to another village 'Belasar' and he admitted that he never resided in village Sinthal. He was suggested that the field belonged to the accused Keshu Dan and he could not deny this suggestion. The other person PW-17 Jasroop belongs to village Sinthal but he did not support the prosecution version in respect of possession or cultivation of the field and was declared a hostile witness. Needless to say that there is no evidence to suggest that the field in question was in exclusive cultivation of Gopi Dan. The 'Patwari' DW-1 Ganesh Datt Ojha was examined by the accused persons and he produced the revenue record Ex. 0/20. Ex. D/21 Ex. D/22 and Ex. D/23. From these documents it is more than evident that the accused Keshu Dan and Biwar Dan were the co-sharers in the field in question and ⅓rd share belonged to Karni Dan. PW-2 Gopi Dan as well as PW-4 Shankar Dan both have admitted that Karni Dan had a share in the field and the accused Madan Singh is none else but the adopted son of Karni Dan. In this way, there is oral as well as documentary evidence to show that the accused Keshu Dan, Biwar Dan and Madan Dan were the persons who were in lawful possession of the field in question. PW-2 Gopi Dan, PW-4 Shankar Dan, PW-7 Arjun Dan and PW-8 Pabu Dan are brothers and they were cross-examined as to whether any rent was ever paid by them or whether there is any entry in the revenue record to suggest that the field was ever cultivated by them. They tried to say that there is documentary proof in this respect in their favour but failed to produce any such proof. We,therefore, find that the field in question was never in the cultivation of Gopi Dan or his brothers and was actually cultivated by the accused Keshu Dan, Biwar Dan and Madan Dan. They tried to say that there is documentary proof in this respect in their favour but failed to produce any such proof. We,therefore, find that the field in question was never in the cultivation of Gopi Dan or his brothers and was actually cultivated by the accused Keshu Dan, Biwar Dan and Madan Dan. The learned trial court on this point has relied on the testimony of the Head Constable Dev Kishan PW-12 who has stated to the effect that about a month prior to the incident on 20.8.80 some written report was lodged by the accused Keshu Dan at Police Station Napasar on the basis of which a case under Section 447 of the IPC was registered vide the FIR Ex. P/23 which was investigated by the SHO Atam Singh (PW-16) and the report was found false and consequently an FR was filed. On the basis of this testimony, the learned trial court has opined that the accused persons were dispossessed as per the report lodged by Keshu Dan. We find it difficult to agree with the said conclusion drawn by the learned trial court. The original written report which was lodged by Keshu Dan has not been tendered in evidence. Nor the final report has been produced and exhibited in evidence. PW-16 Atam Singh does not say that any such FIR was filed by him. According to Devi Kishan the FIR was found false and hence,the case resulted in an FR. That can mean that actually no dispossession of the accused persons from the field in question took place and the false report was filed on 20.8.80 just to harass Gopi Dan, Shenker Dan and Arjun Dan who were named accused-persons in the said report. Thus, on the basis of the said FIR it cannot be said that the accused persons were actually dispossessed from the field in question on 20.8.1980 or prior to that. 6. In order to show as to which side was present in the field and which so side, came subsequently as aggressors, it was desirable that the persons of the neighbouring fields should be examined by the investigating officer. However, the investigating officer adopted a partisan attitude and failed to examine a single independent person who could throw light in this respect. However, the investigating officer adopted a partisan attitude and failed to examine a single independent person who could throw light in this respect. It was a time when people were busy in getting rid of the weeds from the crops and naturally similar activities were going on in the neighbouring fields also. From the evidence of PW-1 Narayan Dan, it is evident that in order to transport the injured persons they borrowed the camel-cart belonging to Bheru Dan of the neighbouring field. Needless to say that this Bheru Dan was an Important witness in this respect. but he has been kept out of the area of investigation by the investigating officer. As pointed out earlier, Narayan Dan. Jagdish and Ramesh Dan are the three sons of the deceased Keshu Dan and Shankar Dan. Arjun Dan, Gopi Dan and Pabu Dan are the four brothers, who claim to be the owners of the field in question. In this way there is not even a single independent person other than the said seven interested witnesses. Even their testimony is highly unsatisfactory. They have not only contradicted each other on material aspects but have deposed against the contents of the FIR and their earlier statements recorded u/s 161 of the CrP.C. PW-1 Narayan Dan who happens to be the lodger of the FIR Ex.P/1 has contradicted the contents of the same. His statements Ex.D/1 and Ex.D/2 were recorded under Section 161 of the Cr P.C. and he has materially contradicted them also. For the statement Ex.D/2 he has gone to the extent of deposing that this statement was never recorded, whereas the court witness Babulal (Additional Superintendent of Police) has deposed that the statement Ex. D/2 of Narayan Dan was recorded by him. Similarly PW-2 Shankar Dan has contradicted his earlier statements Ex.D/3 and Ex.D/4. PW-5 Jagdish has deposed contrary to his earlier statements Ex.D16 and Ex.D/7. Similarly PW-4 Arjun Dan, PW-7 Gopi Dan and PW-8 Pabu Dan have contradicted the earlier statements Ex.D/3, Ex.D/8 and Ex.D/9 respectively. It is an admitted position that all the four injured accused persons were in serious condition and were admitted in the same hospital, where the prosecution witnesses were also examined. PW-2 Shenker Dan and PW-8 Pabu Dan have stated on oath that none of the injured person was present in the hospital. It is an admitted position that all the four injured accused persons were in serious condition and were admitted in the same hospital, where the prosecution witnesses were also examined. PW-2 Shenker Dan and PW-8 Pabu Dan have stated on oath that none of the injured person was present in the hospital. However, PW-1 Narayan Dan has admitted that all the four accused persons were present in the hospital in an injured condition. During his deposition PW-1 Narayan Dan has stated that all the seven prosecution eyewitnesses used 'Kassis' and 'Chausangis'. This is contrary to the FIR Ex. P/1 wherein it is specifically Stated that only Arjun Dan, Shankar Dan, and Jagdish caused injuries to the accused persons in self defence. The witnesses were suggested during the cross-examination that the accused persons also received injuries. To this question practically everyone stated that no injuries were witnessed by them to any of the accused persons. PW-7 Gopi Dan has gone to the extent of telling that he became unconscious during the incident and remained unconscious for full three days and regained his consciousness in Bikaner Hospital. This is contrary to the testimony of Dr. Om Prakash (PW-6) who has stated that at the time of his examination the injured Gopi Dan was quite conscious. Although not relevant for the merits of the case, PW-4 Arjun Dan was suggested that his father married outside his caste and his mother belongs to 'Banjara' community. There was no difficulty in answering this question but the witness was not forthright and pleaded ignorance. That goes to show that the witnesses do not have much regard for oath and have been railer economical in telling the truth during their deposition. According to the FIR Ex. P/1 there is mention of only one single injury by sharp edged weapon so at he hands of Madan Dan to the deceased and according to PW-1 Narayan Dan when this injury was inflicted, Madan Dan and the deceased were face to face. However, PW-6 Dr. Om Prakash has deposed to the effect that the fatal injury to the deceased could not be caused from the front side. During his deposition Narayan Dan has stated that Narayan Dan and Phoos Dan caused injuries to Gopi Dan. However, there is no mention in the FIR Ex. P/1 that Gopi Dan received any injuries at the hands of these two accused persons. During his deposition Narayan Dan has stated that Narayan Dan and Phoos Dan caused injuries to Gopi Dan. However, there is no mention in the FIR Ex. P/1 that Gopi Dan received any injuries at the hands of these two accused persons. From the revenue record and other evidence it is more than clear that the accused Madan Dan is adopted son of Karni Dan. PW-1 Narayan Dan and PW-4 Arjun Dan have admitted in cross-examination that Madan Dan is the adopted son of Kern' Dan. However, PW-7 Gopi Dan has not admitted that Madan Dan is adopted son of Karni Dan. PW-15 Ramesh Dan in his deposition has implicated and deposed against Vijay Dan who according to him was present and participated in the incident. Needless to say that inclusion of Vijay Dan as an accused by Ramesh Dan is false because no other witness names Vijay Dan as an accused nor the name of Vijay Dan finds place in the FIR. PW-15 Ramesh Dan has further stated that during the incident the face of the accused Keshu Dan was covered by a cloth. Neither the FIR says so, nor any other witness has stated that the face of Keshu Dan was covered by cloth. This gives credence to the defence version that Ramesh Dan actually was not present at the time of incident and he is a created witness. Regarding the presence of PW-5 Jagdish and PW-15 Ramesh Dan, the defence contention has been to the effect that they were not present at the place of occurrence. PW-5, Jagdish, in his examination-in-chief, has deposed that when he and others rushed to intervene, all the accused persons attacked and started to belabour them. In this way, according to Jagdish, he also received injuries during the incident. However, there is no injury report to suggest that Jagdish received any injuries. The learned Public Prosecutor has pointed out that so far as PW-5 Ramesh Dan is concerned, he did receive injuries and his injury report Ex P/20 has been produced and the same has been proved by the medical witness. We find that the injury report Ex. P/20 is highly suspect and it is dated 22.9.1980. No reason has been given as to why Ramesh Dan was not examined medically on 19.9.1980 and what were the circumstances which prevented his examination prior to 22.9.1980. We find that the injury report Ex. P/20 is highly suspect and it is dated 22.9.1980. No reason has been given as to why Ramesh Dan was not examined medically on 19.9.1980 and what were the circumstances which prevented his examination prior to 22.9.1980. Ramesh Dan has stated that after the incident he was all along with his father in the hospital and never went elsewhere. In these circumstances, it becomes doubtful as to whether Ramesh Dan was actually an eye-witness. Be that as it may, it is not in dispute that the four accused persons were severely beaten and in the process they received as many as 46 injuries. As per the injury report Ex. D/12 and the X-ray Report Ex. P/9 the accused Keshu Dan received following 16 injuries: 1. Lacerated wound 4" x 1/4" x 1 1/2" 1/4" above the right eye brow over the forehead extending backward. 2. Contusion 3" x 3" Over the right forehead near the injury No. 1. 3. Lacerated wound 1" x 1/4" x 2 1/2" 1/4" above the right mastoid process over the right temporal region. 4. Contusion 3/4" x 3/4" Over the right temporal region 2" above the right mastoid process. 5. Abrasion 1/2" x ⅛" At the base of Proximal Phalanx of left thumb. 6. Contusion 3" x 3" On the lower ⅓rd back of left fore arm 2" above the wrist joint. 7. Contusion 1 1/2" x 1" In the Middle of back of left fore arm. 8. Contusion 2" x 2" Over the back of left hand 2" below the wrist. 9. Contusion 3" x 3" Over the right shoulder joint. 10. Contusion 6" x 5" Over the right scapula (body of scapula). 11. Abrasion 1/2" x 1/2" Over the superior border right scapula. 12. Abrasion 1/2" x 1/2" Over the right shoulder. 13. Contusion 5 1/2" x 5" Over the body of left Scapula extending to left shoulder. 14. Abrasion 1" x ⅛" Over the lower ⅓rd of back of left leg. 15. Abrasion 1" x 1/16" Over the lower ⅓rd of front of right leg. 16. Pain in fingers of right hand, externally there is no mark of injury. According to the X-ray Reports Ex. P/9 and Ex. P/12 two of the aforesaid injuries were grievous in nature there being fractures as per the X-ray Reports. 15. Abrasion 1" x 1/16" Over the lower ⅓rd of front of right leg. 16. Pain in fingers of right hand, externally there is no mark of injury. According to the X-ray Reports Ex. P/9 and Ex. P/12 two of the aforesaid injuries were grievous in nature there being fractures as per the X-ray Reports. The accused Narayan Dan received the following injuries as per the injury report Ex. D/13:- 1. Lacerated wound 11/2" x 1/4" x 1/4" Over the parital region 31/2" above the right mastoid process. 2. Contusion 1 1/2" x 1 1/2" Around the injury No. 1. 3. Lacerate 21/2" x 1/4" x 1/4" In the mid of Skull. 4. Contusion 1 1/2" 1 1/2" On the right pantal bone 1" away from the mid line. 5. Contusion 1" x 1" In the 5th metacarpel on left side (back of hand). 6. Contusion 1" x 1" At the distal end of 2nd 3rd Metacarpel of left hand on its back. 7. Abrasion 1/4" x 1/4" At the proximal phalanx of left thumb on its back. 8. Contusion 1 1/2" x 1/2" Over the back of fore-arm 3" below the lat. Epicondyle of right humerus. 9 Abrasion 1/4" x 1/4" Over the back of right fore-arm 1/2" below the lat. Epicondyle of Rt. humerus. 10. Contusion 1/2" x 1/2" Over the back of Rt. fore-arm 1/2" below the lat. Epicondyle of humerus. 11 Contusion 7" x5" In the mid of back over the Thoracic vertebral. 12 Abrasion (linear) 4" x 1/16" Over the right lower ⅓rd of leg 1" above the lateral malleolus. As per the X-ray report Ex. P/12, there was one grievous injury on the per on of Narayan Dan. The accused Shambhu Dan received following injuries as per the injury report in Ex. D/14. 1. Lacerated wound 1 1/2" x 1/4" x 1/4" ½" away from the lateral eye-brow of left side. 2. Contusion 1" x 1" 1” away from the lateral eye-brow of left side. 3. Lacerated 1/2" x 1/4" x ⅛" Over the back on the left side 1/2" away from the mid vertebral line at the level of L2. 4. Contusion 2" x 2" Around the injury No. 3. 5. Abrasion 1/2" x ⅛" At the nail bed of right thumb. 6. Contusion 1" x 1/2" Over the back of fore-arm 1/2" below the lateral Eolcondyle of humerus (Rt.) 7. 4. Contusion 2" x 2" Around the injury No. 3. 5. Abrasion 1/2" x ⅛" At the nail bed of right thumb. 6. Contusion 1" x 1/2" Over the back of fore-arm 1/2" below the lateral Eolcondyle of humerus (Rt.) 7. Contusion 1" x 1" In the middle of left arm 5" above the lat. Epicondyle of left humerus. 8. Linear Abrasion 1" x 1/16" Over the back of left fore-arm 1/2" above the styloid process of Ulna. 9. Contusion 2 1/2" x 1/2" Over the left side of the back 1 1/2" below the inferior angle of left Scapula. The accused Madan Singh received following injuries as per the Injury Report Ex. D/15. 1. Lacerated wound 2 1/2" x 1/4" x 1/4" Over the right parietal bone. 2. Contusion 2" x 2" Around the injury No. 1. 3. Contusion 3" x 1" Over the body of left Scapula. 4. Abrasion 1/2" x 1/2" Over the superior angle of right Scapula. 5. Contusion 1" x 1" Over the superior angle of right Scapula. 6. Contusion 2 1/2" x 2 1/2" Over the body of right Scapula. 7. Contusion 1" x 1" Over the back of fore-arm (left) 1" below the lateral epicondyle of humerus. 8. Contusion 2" x 2" On the lateral part of lower ⅓ of left thigh 3" above the lateral Epicondyle of femer. 9. Abrasion 1/2" x 1/16" Over the lateral malleolus of left side. 7. It is pertinent to note that all the injured accused persons were taken to the hospital and were examined on 19.9.1980 itself. The investigating officer PW-16 Aatam Singh has stated that the accused Keshu Dan was an indoor patient in the hospital and since his condition was precarious he could not arrest him. He has further admitted that for the accused Madan Dan and Narayan Dan also, the treating Doctor opined that since they needed treatment they could not be arrested. 8. It is not in dispute that persons of one side were working in the filed and taking out the weeds with the help of 'Kassis' and the persons of the other side attacked them. In that eventuality, the accused persons, who according to the prosecution story were the aggressors, were bound to receive injuries by sharp edged weapons. 8. It is not in dispute that persons of one side were working in the filed and taking out the weeds with the help of 'Kassis' and the persons of the other side attacked them. In that eventuality, the accused persons, who according to the prosecution story were the aggressors, were bound to receive injuries by sharp edged weapons. in this connection it is very significant that not even a single injury to the accused persons has been caused by a 'Kassi' which is a sharp edged weapon. All the 46 injuries to the four accused persons are by blunt object and that goes to suggest that the persons of the complainant side were the aggressors who came armed with 'Lathis' and consequently, injuries to the accused persons were inflicted by 'Lathis'. According to PW-2 Shenker Dan, PW-7 Gopi Dan, and PW-8 Pabu so Dan had 'Chausangis' which they used during the incident. How 'Chausangi' is not an instrument to take out the weeds. On the other hand it can be used as a weapon of offence as a 'Lath'. This circumstance alone is sufficient to disbelieve the prosecution story to the effect that the persons of the complainant side were working in the field with 'Kassis' in their hands prior to the incident. 9. According to the prosecution story the seven accused persons came boarding a camel-cart at the place of occurrence. Another camel-cart was s requisitioned after the incident in order to transport the injured persons of the complainant side. However, the investigating officer Atam Singh has clearly stated that there were traces of only one camel-cart and there were no traces of another camel-cart at the place of occurrence. That goes to suggest that the story of the prosecution to the effect that the accused persons came as to aggressors in a camel-cart is far away from reality. 10. The accused persons were tried in respect of the offence punishable under Section 302 of the IPC but the learned trial court has found that no case of murder was made out and hence, all were acquitted of the said charge According to the learned trial court an offence of homicide not amounting to murder was actually committed and a finding of guilt for the offence punishable under Section 304 Part II of the IPC has been arrived at. We find that even this finding is erroneous and the case does not travel beyond Section 326 of the IPC. It is not in dispute that so far as the deceased was concerned there was no previous enmity between him and any of the accused persons. PW.-1 Narayan Dan and PW-2 Shenker Dan both have admitted that the deceased had no enmity with the accused persons. The evidence of the witnesses regarding the incident is of omnibus nature and it is not clear as to which accused was the author of the injury which ultimately proved fatal. In this way it is clear that neither it was a case of murder nor it was a case in which it could be inferred that there was any knowledge that the injury in question was likely to cause death or to cause such bodily injury as was likely to cause death. The offence of culpable homicide presupposes an intention or knowledge or likelihood of causing death. The intention must be directed either deliberately to putting an end to human life or to some act which to the knowledge of the accused is likely to result in putting an end to human life. In the totality of circumstances we find that no such thing can be inferred in this case. 11. From the above discussion it is more than clear that the contention made in the FIR to the effect that the place of occurrence belonged to the complainant side was not true and from the evidence it is more than evident that the field was actually in possession of the accused persons. It is also clear that the accused persons were working in the field and it were the persons of the complainant side who came armed with 'lathis' to dispossess the accused persons. The learned trial court has found that it was not a case of murder. We find that it was not a case in which a finding of guilt for the offence punishable under Section 304 Part II of the IPC could be arrived at. In aforementioned circumstances, it cannot be said that the accused persons were members of any unlawful assembly. In the totality of circumstances, we find that the accused persons had every right to act in their self-defence as well as in defence of their property. 12. In aforementioned circumstances, it cannot be said that the accused persons were members of any unlawful assembly. In the totality of circumstances, we find that the accused persons had every right to act in their self-defence as well as in defence of their property. 12. In the result, the D.B. Criminal Appeal No. 141/1983 filed by the accused-appellants is allowed. The judgment under appeal is set aside. All the remaining four appellants viz. Shaktidan. Phoosdan, Madandan and Shambhudan shall stand acquitted of the charges. Consequently no basis to so allow the appeal filed by the State remains and accordingly, the appeal filed by the State is dismissed.Appeals of Accused Allowed - State Appeal Dismissed. *******