U. S. TRIPATHI, J. This appeal has been directed against the judgment and order dated 7-5-1987, passed by the then learned I Addl. Sessions Judge, Etah in Session Trial No. 285 of 1983, convicting appellants Ram Prasad (died), Mihi Lal (died), Havaldar (died), under Sections 147, 307 read with Sections 149 IPC 302 read with Section 149 IPC and sentencing each of them to undergo RI for a period of one year under Section 147 IPC for a period of four years under Section 307 read with Section 149 IPC and imprisonment for life under Section 302 read with Section 149 IPC and convicting appellants Shiv Dan, Suraj Bhan @ Suraj Pal, Dev Singh and Ram Avtar under Sections 148, 307 read with Sections 149 IPC and 302 read with Section 149 IPC and sentencing each of them to undergo RI for a period of two years under Section 148 IPC, RI for a period of four years under Section 307 read Section 149 IPC and imprisonment for life under Section 302 read with Section 149 IPC. All the sentences were ordered run concurrently. 2. The prosecution story briefly stated was as under: Suraj Singh deceased, father of Natthu Singh P. W. 1, Kallu, P. W. 3, Bhanwar Singh, P. W. 4 and all the appellants were residents of village Kishanpur, P. S. Kotwali, District Etah. There was enmity between the parities and there were two groups in the village. Appellants were Jatavas while prosecution side were Thakurs. A criminal case under Section 307 IPC had taken place in which Ram Prasad and one Chiranji Lal were accused and Suraj Singh deceased had given evidence against them. Though the parties compromised in the said case, but Ram Prasad was having enmity with Suraj Singh. It is alleged that the police had recovered some illicit liquor from the possession of Ram Prasad and Ram Avtar. They were suspecting that Natthu Singh P. W. 1 had given information to the police regarding it. 3. On the after noon of 21-3-1981 at about 2. 30 p. m. Natthu Singh PW 1 was going to Mata Ka Than (place of goddess) at a distance of about 20 paces from his house to take his cattle as his cattle were tethered there. When Natthu Singh P. W. 1 reached near Mata Ka Than, Ram Prasad having lathi and Ram Avtar having spear met him. 30 p. m. Natthu Singh PW 1 was going to Mata Ka Than (place of goddess) at a distance of about 20 paces from his house to take his cattle as his cattle were tethered there. When Natthu Singh P. W. 1 reached near Mata Ka Than, Ram Prasad having lathi and Ram Avtar having spear met him. Observing Natthu Singh, P. W. 1 they started abusing him saying that he had got his liquor seized and they would teach him a lesson for it. Saying it they attacked on Natthu Singh P. W. 1. Raising alarm he also chased them with his lathi. On his alarm his father Suraj Singh, deceased, Kallu Singh P. W. 3, Mitthu Singh, Tej Singh and Resham Pal came to his rescue. Seeing them appellants Mihi Lal, Havaldar, Shiv Dan, Suraj Bhan and Dev Singh as well as Chiranji, Gajraj, Chandrapal, Atar Singh, Suraj Pal son Revati, Taleshwar, Anar Singh, Net Ram, Babu Ram (acquitted by trial Court) and Bighe (died during trial) also came there. Ram Avtar and Dev Singh were having spears. Bighe, Suraj Bhan, Saudan and Suraj Pal son of Ram Prasad were having country made pistols. Suraj Pal son of Revati and Babu Ram were having country made bombs and other persons were having lathis. All the above appellants and accused attacked on Natthu Singh, P. W. 1. They fired from country made pistol and inflicted spear and lathi blows on him. Natthu Singh PW 1 and other persons who had come to his rescue were plying their lathis in their self defence. Lalji, Ranvir, Mangal Singh and Latoori also came to the spot and on their challenge the appellants and other accused ran away. Suraj Singh, deceased sustained spear injury, Bhanwar Singh, Mitthu Singh, Tej Singh and Resham Pal sustained fire arm injuries and Kallu Singh sustained lathi injury. Natthu Singh, P. W. 1 got prepared his report, Ext. Ka-1 from one Chob Singh and taking the injured persons in a bullock cart he came to the police station, Kotwali, Etah, where he lodged report at 6. 45 p. m. 4. Chik FIR, Ext. Ka-10 was prepared by Constable Clerk Ramdin, who made an endorsement of the same on the G. D. report, Ext. Ka-11 and registered a case against the appellants and other accused (total 17 persons) under Sections 147, 148, 149 and 307 IPC. 45 p. m. 4. Chik FIR, Ext. Ka-10 was prepared by Constable Clerk Ramdin, who made an endorsement of the same on the G. D. report, Ext. Ka-11 and registered a case against the appellants and other accused (total 17 persons) under Sections 147, 148, 149 and 307 IPC. The injured persons Suraj Singh deceased, Kallu Singh P. W. 3, Bhanwar Singh, P. W. 4, Mitthu Singh, Tej Singh and Resham Pal were sent to District Hospital, Etah for medical examination, where they were medically examined by Dr. R. S. Gupta, P. W. 6. 5. Suraj Singh deceased was referred to S. N. Hospital, Agra, where he died at 3. 30 a. m. on 23-3-81. 6. The autopsy on the dead body of Suraj Singh, deceased was conducted on 23-3-81 by Dr. R. B. Singh, P. W. 2, who found lacerated wound on the right side face, abrasion on middle of right pinna, stitched wounds on abdomen and left ankle joint as ante-mortem injuries and cause of death due to shock and haemorrhage as a result of ante-mortem injuries. 7. On account of death of Suraj Singh the case was altered under Section 302 IPC on 8-4-1981. The investigation of the case was taken up by Sri Munindra Nath Chaturvedi, P. W. 5, who interrogated witnesses, inspected the place of occurrence, prepared site plan, Ext. Ka-3 and on completion of investigation submitted charge sheet Ext. Ka-14, against the appellants and other accused (17 persons ). 8. The cognizance of the case was taken up by the Magistrate, who committee the case to the Court of Sessions. 9. Appellants and other accused were charged with the offences punishable under Sections 147, 148, 302 read with Sections 149 IPC and 307 read with Section 149 IPC. They pleaded not guilty. Their defence was that Babu Ram had his field near Mata Ka Than to which the appellant Havaldar had taken on Batai (crop share basis) and has sown gram crop in it. On the date of occurrence she goats of Suraj Singh deceased and Deep Singh were grazing the said gram crop of appellant Havaldar. Appellant Havaldar came there and asked them as to why their goats were grazing his crop. On it both of them attacked on him. Suraj Pal and Mihi Lal came to rescue of Havaldar. Son of Deep Singh came there with his licensed gun. Appellant Havaldar came there and asked them as to why their goats were grazing his crop. On it both of them attacked on him. Suraj Pal and Mihi Lal came to rescue of Havaldar. Son of Deep Singh came there with his licensed gun. Several other persons also reached there and started causing injuries to accused side. The report of the occurrence was lodged at 8. 00 p. m. at the police station. Suraj Pal, Havaldar and Mihilal appellants had sustained injuries and on the report of accused side a cross case was registered and charge sheet was submitted. 10. The prosecution in support of its case examined, Natthu Singh, P. W. 1, Dr. R. B. Singh, P. W. 2, Kallu Singh, P. W. 3, Bhanwar Singh, P. W. 4, Sri Munindra Nath Chaturvedi, I. O. , P. W. 5 and Dr. Radhey Shyam Gupta, P. W. 6. The appellants did not adduce any oral evidence but had filed documentary evidence, relating to cross case and khasra extract of the year 1379 Fasli. 11. Learned Sessions Judge on considering the evidence of the prosecution held that since there was no bomb injury on the deceased or any of the injured person of the prosecution side, participation of Surajpal son of Revati and Babu Ram was doubtful. He further held that participation of accused Chiranji Lal, Atar Singh, Taleshwar, Gajraj, Net Ram, Chandra Pal and Anar Singh was also doubtful. However, he held that the prosecution has successfully proved the guilt of the appellants Ram Prasad, Ram Avtar, Shiv Dan, Suraj Bhan @ Suraj Pal son of Ram Prasad, Dev Singh Havaldar and Mihilal for the offences punishable under Sections 147, 148, 302 read with Section 149 IPC and 307 read with Section 149 IPC. With these finding he convicted and sentenced them as mentioned above and acquitted the remaining accused. Bighe accused had already died during trial. 12. Aggrieved with their above conviction and sentence, Ram Prasad, Mihilal, Havaldar, Shiv Dan, Suraj Bhan @ Surajpal son of Ram Prasad, Dev Singh and Ram Avtar filed this appeal. 13. Appellants Ram Prasad, Mihilal and Havaldar died during pendency of appeal and therefore, the appeal preferred by them stood abated vide order dated 18-2-2003. Now there remains the appeal preferred by appellants Shiv Dan, Surajbhan, Dev Singh and Ram Avtar. 14. 13. Appellants Ram Prasad, Mihilal and Havaldar died during pendency of appeal and therefore, the appeal preferred by them stood abated vide order dated 18-2-2003. Now there remains the appeal preferred by appellants Shiv Dan, Surajbhan, Dev Singh and Ram Avtar. 14. We have heard Sri Sushil Shukla, learned Counsel for the appellants and the learned AGA for the respondent and have perused the entire evidence on record. 15. In this case Marpeet on the date and time of occurrence is admitted between the parties and the appellants Mihilal and Havaldar have pleaded the right of self defence. According to the prosecution on the date of occurrence at about 2. 30 p. m. when Natthu Singh P. W. 1, reached near Mata Ka Than, appellants Ram Prasad armed with lathi and Ram Avtar armed with spear met him there and abusing him that he got their liquor seized they attacked on him with lathi and spear. Natthu Singh P. W. 1 also chased them with lathi. On his alarm his father Suraj Singh and other injured witnesses Kallu Singh, Mitthu Singh, Tej Singh, Reshampal and Bhanwar Singh came there. In the mean time other appellants and accused persons also came to the spot armed with country made pistols bombs and lathis and caused injuries to them. Natthu Singh and other witnesses also plied their lathis in their self defence. On the other hand the case of the appellants Mihilal and Havaldar was that Suraj Singh, deceased and Deep Singh were grazing gram crop in the field Havaldar. On his objection they chased him. Surajpal and Mihilal saved him. In the mean time other associates of Suraj Singh deceased also came on the spot and they attacked on them. They also sustained injuries. The prosecution side also sustained injuries in the same transaction. 16. Thus the injuries on the prosecution witnesses, the death of Suraj Singh on account of above injuries, as well as injuries on the appellants Surajpal. Havaldar and Mihilal are admitted to the parties. 17. Dr. Radhey Shyam Gupta, P. W. 6, examined the injuries of Suraj Singh, deceased, Bhanwar Singh, Kallu Singh, Mitthu Singh, Tej Singh and Reshampal, as well as appellants Surajpal Havaldar and Mihilal and found following injuries on their person. Injuries of Suraj Singh, deceased. (1) Punctured wound 2 cm x 1 cm x cavity deep on outer and right abdomen 5. Radhey Shyam Gupta, P. W. 6, examined the injuries of Suraj Singh, deceased, Bhanwar Singh, Kallu Singh, Mitthu Singh, Tej Singh and Reshampal, as well as appellants Surajpal Havaldar and Mihilal and found following injuries on their person. Injuries of Suraj Singh, deceased. (1) Punctured wound 2 cm x 1 cm x cavity deep on outer and right abdomen 5. 5 cm above Illiac Crest. Margin lacerated. Adv. X-ray. (2) Punctured wound 2. 5 cm x 0. 5 cm x bone deep on right temple 1 cm on front at right ear, margins lacerated. Adv. X-ray. All injuries were fresh, kept under observation. Weapon also kept under observation. Injuries of Bhanwar Singh, P. W. 4 (1) Fire arm wound of entry 0. 3 cm x 0. 3 cm on inner and medial right thigh. Adv. X-ray. (2) Fire arm wound of entry 0. 3 cm x 0. 3 cm on front at right leg 10 cm below knee. Ad. X-ray. (3) Two fire arm wound of entry on left outer hip, other on upper back left thigh, measuring 0. 3 cm in diameter. Adv. X-ray. (4) Five fire arm wounds of entry, measuring 0. 3 cm in the diameter in an area of 25 cm x 10 cm on back of left leg. Adv. X-ray. All injuries were fresh, simple in nature and caused by fire arm. No blackening and tattooing present on the wound. Injuries of Kallu Singh, P. W. 3. (1) Lacerated wound 1 cm x 0. 5 cm x skin deep on inner side of left leg 3 cm above ankle joint. (2) Lacerated wound 0. 5 cm x 0. 5 cm on inner side of left leg 1 cm above injury No. 1. All injuries were fresh in duration, simple in nature and caused by blunt object. Injuries of Mitthu Singh. (1) Traumatic swelling 6 cm x 3 cm on front of left leg middle colour red. (2) Abrasion 1. 5 cm x 0. 5 cm on inner and lower of left leg. Both injuries were fresh, simple and caused by blunt weapon and friction. Injuries of Tej Singh. (1) Fire arm wound of entry 0. 3 cm in diameter on front of left arm upper part. (2) Fire arm wound of entry 0. 3 cm in diameter on the back of left fore arm middle. (3) Fire arm wound of entry 0. Both injuries were fresh, simple and caused by blunt weapon and friction. Injuries of Tej Singh. (1) Fire arm wound of entry 0. 3 cm in diameter on front of left arm upper part. (2) Fire arm wound of entry 0. 3 cm in diameter on the back of left fore arm middle. (3) Fire arm wound of entry 0. 3 in diameter on front of left thigh, middle. All injuries were fresh in duration, simple in nature and caused by fire arm. Injuries of Reshampal. (a) Circular abrasion 0. 3 cm diameter on left buttock. Injury was fresh in duration, simple in nature and caused by blunt object and friction. Dr. R. B. Singh, P. W. 2 who conducted autopsy on the dead body of Suraj Singh deceased stated that the deceased died on 23-3-81 at 3. 30 a. m. in S. N. Hospital, Agra. He found following ante-mortem on his person. (1) Lacerated wound 1/2" x 2/10" x skin deep situated on the right side of face 1/2" in front of right ear oblique in direction. (2) Abrasion (vertical) 1" x 3/10" on the front and middle of right pinna. (3) Stitched wound 1/2" long situated on the right flank of abdomen, at the back of mid line 8" away from umbilicus, oblique in direction. On removing stitches the wound was peritoneal cavity deep. (4) Stitched wound (vertical) 9 1/2" long situated on the right side abdomen 1/2" away from mid line extending from 2" below xiphisternum up to pubic bone. On removing stitches the wound was peritoneal cavity deep. (5) Stitched wound 1/2" long on the surface of left ankle joint. On removing stitches the wound was saphenous vein deep. The wound was horizontal. He further stated that internal examination showed that peritoneum was cut and stitched under injury Nos. 3 and 4. Peritoneal cavity contained about 6 oz of fresh blood. Stomach was empty and pale. Pyloric region found stitched on its interior surface lower part. On removing stitches it was up to pyloric cut deep. Upper part of duodenum of small intestine found stitched on its interior surface and skin of sternum external wall, large intestine contained faecal matters and was pale. Liver was congested and lobe of liver found stitched. It was long on its inferior surface. On removing stitches wound was 2/10" deep. On removing stitches it was up to pyloric cut deep. Upper part of duodenum of small intestine found stitched on its interior surface and skin of sternum external wall, large intestine contained faecal matters and was pale. Liver was congested and lobe of liver found stitched. It was long on its inferior surface. On removing stitches wound was 2/10" deep. The cause of death was due to shock and haemorrhage on account of above injuries. He further stated that the ante-mortem injuries, on the person of deceased were sufficient in the ordinary course of nature to cause his death. Dr. Radhey Shyam Gupta P. W. 6 stated that he also medically examined appellants Surajpal, Havaldar and Mihilal and found following injuries on their person. Injuries of Surajpal. (1) Circular wound 0. 3 cm in diameter on front of right arm lower part. Adv. X-ray. (2) Abrasion 0. 5 cm x 0. 5 cm on web of right thumb. (3) Abrasion 0. 2 cm x 0. 2 cm on the right outer thigh. All the injuries were fresh in duration. Injury No. 1 Kept under observation. Injuries 2 and 3 were simple and caused by fire arm. Injuries of Havaldar. (1) Fire arm wound of entry 0. 3 cm in diameter in front of left arm upper part. (2) Fire arm wound of entry 0. 3 cm in diameter on the back of left fore arm in the middle. All the injuries were fresh in duration, simple in nature and caused by fire arm. Injuries of Mihilal. (1) Abrasion with contusion (red) 7 cm x 3 cm on the right side of fore head. (2) Contusion 9 cm x 3 cm (red) on the left thigh front and middle. Both the injuries were fresh in duration, simple in nature and caused by blunt object and friction. As both the parties have admitted injuries in the above persons of the prosecution side, as well as the appellants medical evidence established that the above persons sustained injuries and Suraj Singh deceased died on account of injuries sustained by him. As mentioned above Marpeet and injuries on both the side is admitted to the parties and both the sides have claimed to have acted in self defence. Therefore, it is to be considered as to which side was aggressor and which side acted in self defence in exercise of right of self defence. As mentioned above Marpeet and injuries on both the side is admitted to the parties and both the sides have claimed to have acted in self defence. Therefore, it is to be considered as to which side was aggressor and which side acted in self defence in exercise of right of self defence. The claim of benefit of right of self defence to accused persons is well settled. The Apex Court in the recent case of Rizan and another v. State of Chhattisgarh, 2003 (1) JIC 736 (SC) : JT 2003 (2) 191, held as below: "section 96 IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The section does not define the expression `right of private defence. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872, the burden of proof is on the accused, who sets of the plea of self defence, and in the absence of proof, it is not possible for the Court to presume the truth of the plea of self defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witness examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence, he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. An accused taking the plea of the right of private defence is not required to call evidence, he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either awarding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record. " The Apex Court in the case of Salim Zia v. State of U. P. , AIR 1979 SC 391 , has held as below: "it is true that the burden on an accused person to establish the plea of self defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence. " 18. Relying on other decisions, it was further held in Rizans case (supra) that the accused need not prove the existence of private defence beyond reasonable doubt. It is enough for him to show, as in a civil case, that the preponderance of probabilities is in favour of his plea. 19. Before considering the point of aggressor ship, we would like to refer the gist of evidence of ocular and injured witnesses. Natthu Singh P. W. 1 stated that on the date of occurrence at about 2. 30 p. m. he was going to Mata Ka Than to fetch is cattle as his cattle were tethered at the said place. When he reached near Mata Ka Than crossing, appellants Ram Prasad armed with lathi and Ram Avtar armed with spear met him. Natthu Singh P. W. 1 stated that on the date of occurrence at about 2. 30 p. m. he was going to Mata Ka Than to fetch is cattle as his cattle were tethered at the said place. When he reached near Mata Ka Than crossing, appellants Ram Prasad armed with lathi and Ram Avtar armed with spear met him. Observing him they started abusing him saying that yesterday he called the police and got seized their liquor and they would teach him a lesson. Saying it they attacked on him. He was also having lathi and he reciprocated on the above appellants. On his alarm his father Suraj Singh deceased, Kallu Singh, P. W. 3, Bhanwar Singh, P. W. 4, Mitthu Singh, Tej Singh and Reshampal also came there. Observing the above witnesses coming on the spot, appellants Havaldar, Sheo Dan, Suraj Bhan, Dev Singh, Mihilal and other accused (who have been acquitted by the trial Court) also reached the spot. Dev Singh was having spear, Bighe, Sheo Dan and Suraj Pal son of Revati were having country made pistols, Suraj Pal and Babu Ram were having country made bombs and others were having lathis. The accused having country made pistols started firing and accused having lathis inflected lathi below and the accused having spear inflicted spear injuries on them. They also plied their lathis in self defence. Suraj Singh deceased sustained spear injuries. Bhanwar Singh, Mitthu Singh, Tej Singh and Reshampal sustained pellet injuries and Kallu Singh sustained lathi injuries. He prepared report of the occurrence and taking the injured in a bullock cart came to the police station Kotwali, Etah, where he lodge the report. The injured were medically examined in District Hospital, Etah. Suraj Singh was referred to Agra Hospital, where he died. 20. Kallu Singh, P. W. 3 stated that on the date of occurrence at about 2. 30 p. m. he was sitting on the door of Mitthu Singh. Hearing the shrieks of Natthu Singh, P. W. 1 he reached the spot. Bhanwar Singh, P. W. 4, Mitthu Singh, Tej Singh, Reshampal and Suraj Singh, deceased also came there. He saw that Ram Prasad and Ram Avtar were abusing Natthu Singh. Ram Prasad was having lathi and Ram Avtar was having spear. The other appellants and the accused also came to the spot. Bhanwar Singh, P. W. 4, Mitthu Singh, Tej Singh, Reshampal and Suraj Singh, deceased also came there. He saw that Ram Prasad and Ram Avtar were abusing Natthu Singh. Ram Prasad was having lathi and Ram Avtar was having spear. The other appellants and the accused also came to the spot. Dev Singh was having spear, Bighe, Sheo Dan, Surajpal son of Ram Prasad were having country made pistols. Suraj Pal son of Revati and Babu Ram were having bombs and others were having lathis. Those persons attacked on them with their respective weapons. Suraj Singh sustained spear injuries, Mitthu Singh, Reshampal, Tej Singh and Bhanwar Singh sustained pistol injuries and he sustained lathi injuries. 21. Bhanwar Singh P. W. 4 stated that on the date of occurrence at about 2. 30 p. m. he was sitting at the Chaupal of Mitthu Singh. Hearing the shrieks of Natthu Singh, PW 1 he rushed to the spot. Resham Pal, Tej Singh, Mitthu Singh, Kallu, Suraj Singh also came there. Reshampal and Kallu were having lathis. Ram Prasad and Ram Avtar had surrounded Natthu Singh near Mata Ka Than. Ram Prasad was having lathi and Ram Avtar was having spear. They were saying to Natthu Singh that he had got seized their liquor and they would teach him a lesson of it. In the mean time Suraj Pal, Atar Singh, Havaldar Suraj Pal son of Revati, Chandra Pal, Bighe, Chiranji Lal, Gajraj, Saudan, Deo Singh, Mihilal, Teleshwar, Babu, Amar Singh and Net Ram also came there. Chiranji Lal was having lathi, Bighe, Sheo Dan, Suraj Pal son of Ram Prasad were having country made pistols, Dev Singh was having spear, Surajpal son of Revati and Babu Ram were having bombs and others were having lathis. They attacked on them with their respective weapons. Suraj Singh sustained spear injuries. Bhanwar Singh, Tej Singh, Resham Pal and Mitthu Singh sustained fire arm injuries and Kallu sustained lathi injuries. The injured were brought to the Chaupal of Natthu Singh, where Natthu Singh got prepared a report from Chob Singh and went to police station taking the injured in a bullock cart. The injured were then sent to District Hospital for medical examination. 22. The injured were brought to the Chaupal of Natthu Singh, where Natthu Singh got prepared a report from Chob Singh and went to police station taking the injured in a bullock cart. The injured were then sent to District Hospital for medical examination. 22. Learned Counsel for the appellants contended that Natthu Singh P. W. 1 had not sustained any injury though according to the prosecution the Marpeet initiated on him and but absence of injury on him creates doubt in his presence. It is true that Natthu Singh, P. W. 1 had not sustained any injury but the witness stated that on his alarm his father and other injured witnesses came to the spot and after the occurrence he prepared a report Ext. Ka-1 took all the injured to the police station, where he lodged report at 6. 45 p. m. The occurrence took place at about 2. 30 p. m. As many as six persons had received injuries from the side of the prosecution and the condition of Suraj Singh deceased was serious. The distance of police station was six miles. All the injured were brought to the police station in a bullock cart. Considering the above facts and circumstances and the time taken in arranging the bullock cart and bringing the injured to the police station it cannot be said that there was no delay in lodging the report. The presence of Natthu Singh, P. W. 1 at 6. 45 p. m. is noted in the GD report (Ext. Ka-11 ). The witness has stated his presence from the very beginning and there is nothing in his cross-examination to show that he was not present on the spot. The witness has also clarified the absence of injuries on his person by stating that when appellants Ram Avtar and Ram Prasad attacked on him first, he saved it from his lathi. The witness was going to take his cattle from Mata Ka Than and having a lathi at that time was most natural as lathi is necessary to drive the cattle. He further stated that on his shrieks his father and other witnesses also came there and at the time of marpeet there were other persons from the side of the prosecution. Thus, in these circumstances the witness could not sustain injury. He further stated that on his shrieks his father and other witnesses also came there and at the time of marpeet there were other persons from the side of the prosecution. Thus, in these circumstances the witness could not sustain injury. The absence of injury on his person, therefore, does not rule out his presence on the spot as he has explained his presence on the spot otherwise. 23. The presence of other witnesses, namely, Kallu P. W. 3 and Bhanwar Singh, P. W. 4 is admitted. These witnesses are injured witnesses and according to the evidence of Dr. Radhey Shyam, P. W. 6 the injuries on the above persons were caused in the same transaction. 24. Learned Counsel for the appellants contended that though the injuries of the appellants Mihilal, Surajpal and Havaldar is admitted to the prosecution in their evidence, but it was subsequent development and the prosecution had not explained the injuries of above appellants in the FIR and, therefore, non explanation of injuries on the person of appellants indicated that the prosecution has suppressed the origin and genesis of Marpeet and defence version which is proved by the evidence on record is more probable and, therefore, the prosecution side was aggressor. 25. The Apex Court in the case of Takhaji Hiraji v. Thakore Kuber Singh Chaman Singh and others, 2001 (2) JIC 659 (SC) : (2001) 6 SCC 145 , laid down the conditions in which the prosecution was under obligation to explain the injuries on the person of the accused as below: "before non-explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the Court has to be satisfied of the existence of two conditions: (i) That the injuries on the person of the accused was of a serious nature ; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Non explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case. " 26. From perusal of the injury reports Ext. Kha-3, Kha-4 and Kha-5 and nature of injuries of appellants Suraj Pal, Havaldar and Mihilal referred to above, we find that the injuries on the person of above appellants were not of serious nature, though they were received in the same transaction as admitted by the prosecution witnesses. These injuries were so superficial that it could not be easily visible by the ocular witnesses. Therefore, non explanation of the injuries in the FIR was not fatal to the prosecution. Moreover, when the ocular witnesses came to know about the existence of injuries on the person of above three appellants, they explained it and it is also clear from the evidence on record that the above injuries on the appellants could have been sustained in commotion and melee. It is true that none of the ocular witnesses have stated that no one from the side of the prosecution was having fire arm and the case of the prosecution is that Kallu (P. W. 3) Resham Pal as well as Natthu Singh, P. W. 1 had lathis and they plied their lathis in their self defence and the inquiry report of Suraj Pal showed that Injury No. 1 was circular wound 0. 3 cm in diameter. Dr. Radhey Shyam, P. W. 6 had not opined about the weapon by which Injury No. 1 of Suraj Pal was caused and the injury was kept under observation to ascertain the weapon. There is no X-ray report and no evidence regarding the weapon by which Injury No. 1 of appellant Suraj Pal was caused. The other injuries of Suraj Pal and injuries of appellants Mihilal and Havaldar were definitely caused by blunt object. There is no X-ray report and no evidence regarding the weapon by which Injury No. 1 of appellant Suraj Pal was caused. The other injuries of Suraj Pal and injuries of appellants Mihilal and Havaldar were definitely caused by blunt object. Assuming that Injury No. 1 of appellant Suraj Pal was pellet injury, country made pistols were used from the side of appellants by as many as three persons. Therefore, the possibility that Injury No. 1 of appellant Suraj Pal was caused by spread pellet fired by other appellants cannot easily be ruled out. 27. The nature and number of injuries on the side of prosecution were severe, caused by lethal weapons and greater in number, while injuries on the side of appellants were superficial and caused by blunt object and friction. It is true that number and nature of injuries are not decisive for ascertaining the aggressor ship as if the accused got only apprehension of causing grievous injury or of death, he can cause any number of injuries of any nature in his self defence and he is not expected to wait for injury and to see its number. It is also true that once the right of self defence accrues there can be no limit of causing nature and number of injuries in self defence provided it is not restricted by provisions of Sections 99 and 100, IPC. But in the instant case no suggestion was given to the prosecution witnesses and nothing could be elicited from the cross-examination of the above witnesses that any one from the side of prosecution was having fire arm and any one from the prosecution side caused such grievous injury on any of the appellants so that it may give them an apprehension of causing grievous hurt or death. The version of appellant Mihilal in his statement under Section 313 Cr. P. C. was that the prosecution side attacked on him and others with lathis, spear, guns and country made pistols thus appears an after thought. Thus, the nature and number of injuries on the person of appellant and prosecution witnesses and deceased in the facts and circumstances of the present case indicates that the appellant side was aggressor and injuries on the person of appellants Havaldar, Surajpal and Mihilal were in all probabilities caused in self defence or commotion. 28. Thus, the nature and number of injuries on the person of appellant and prosecution witnesses and deceased in the facts and circumstances of the present case indicates that the appellant side was aggressor and injuries on the person of appellants Havaldar, Surajpal and Mihilal were in all probabilities caused in self defence or commotion. 28. Learned Counsel for the appellants contended that the immediate motive alleged by the prosecution was that a day before the occurrence the police had come to the house of Ram Avtar and Ram Prasad and had seized some illicit liquor and they were suspecting that information regarding presence of liquor at their house was given to the police by Natthu Singh P. W. 1. But there is nothing on record to show that any case under the Excise Act was initiated against the above appellants and the I. O. had also not ascertained whether any illicit liquor was recovered from the house of Ram Prasad and Ram Avtar. It is true that there is no evidence to show that any illicit liquor was recovered from the house of Ram Avtar and Ram Prasad, but non registration of a case alone is no ground, to hold that the origin of Marpeet as stated by Natthu Singh and others was false or concocted, specially when the Marpeet is admitted to the parties. 29. The origin and genesis of Marpeet as suggested by the appellants Mihilal and Havaldar was that Suraj Singh, deceased and Deep Singh were getting gram crop of appellants Havaldar grazed by their she goats and when Havaldar objected, they chased him, and when Mihilal and Suraj Pal came to save him they caused injuries to them. But it was not clarified from the Investigating Officer, Munindra Nath Chaturvedi, P. W. 5 that he found any grazed crop in the field of appellant Havaldar, when he visited the spot, nor there is any other evidence either from the cross-examination of the witnesses or otherwise to prove this fact. However, the appellants have filed Khasra extract of 1379 Fasli to show that gram crop was existing in the said year in the plot of Babu Ram which Havaldar had allegedly taken on Batai. However, the appellants have filed Khasra extract of 1379 Fasli to show that gram crop was existing in the said year in the plot of Babu Ram which Havaldar had allegedly taken on Batai. But the existence of gram crop does not prove that it was actually got grazed by she goats of Suraj Singh and, therefore, neither it was proved nor it was elicited from the cross-examination of the prosecution witnesses that any amount of gram crop belonging to appellant Havaldar was got grazed. Thus, the origin and genesis of Marpeet suggested by the appellant is also not inferred from the evidence on record. 30. It was further contended by the learned Counsel for the appellant that according to the evidence of Dr. Radhey Shyam P. W. 6 dying declaration of Suraj Singh was recorded at 15. 45 hours on 23-3-81 as endorsed on the bed head ticket of Suraj Singh, but the prosecution had withheld the above dying declaration and it leads to infer that the above dying declaration was against the prosecution. But Dr. Radhey Shyam, P. W. 6 had clarified that at 7. 50 p. m. on 21-3-81 he had sent call for recording dying declaration of Suraj Singh, but he could not say whether dying declaration was recorded in his presence or not and the endorsement on the bed head ticket was not confirmed by any of the Doctor on duty. He also stated that he could not say that in whose hand writing the endorsement on bed head ticket for recording dying declaration at 15. 45 hours on 22-3-81 was made. As such no capital can be made of it. It has not been established that the dying declaration of Suraj Singh was actually recorded as neither the alleged dying declaration was brought on record, nor it was proved according to law. 31. It was further contended that the trial Court has disbelieved the presence of as many as 9 accused on the spot and acquitted them. Therefore, on the same evidence the remaining accused/appellants could not be convicted. 31. It was further contended that the trial Court has disbelieved the presence of as many as 9 accused on the spot and acquitted them. Therefore, on the same evidence the remaining accused/appellants could not be convicted. It is true that the trial Court has disbelieved the presence of as many as 9 accused and acquitted them and only 7 accused were convicted as one of them (Bighe) died during trial, but on account of it the entire prosecution story cannot be disbelieved as the principle of falsus in uno, falsus in omnibus is not applicable in India. The Apex Court held in the case of Nadodi Jayraman v. State of Tamil Nadu, 1992 ACR 479, as below: "the High Court on scrutiny the evidence relating to the complicity of A-2 and A-3 and rightly rejected the argument that since some of the co-accused had been acquitted, against whose acquittal no appeal had been preferred by the State, the evidence of the prosecution witnesses so disbelieved could not be relied upon to sustain the conviction of A-2 and A-3 either. This Court has time out of number pointed out that the Maxim falsus in uno falsus in omnibus cannot be mechanically applied and the mere fact that the evidence of some of the prosecution witnesses was found unsafe for convicting the co-accused, is by itself no ground for rejecting the whole body of their testimony. It only puts the Court on its guard to carefully scrutinize their evidence. As already noticed, we are satisfied with the appraisal of evidence by the Courts below and find no reason to doubt the involvement of A-2 and A-3 in so far as the assault on the deceased is concerned. " 32. We have scrutinised the evidence of ocular witnesses and find that their evidence is trustworthy, so far as complicity of present appellants is concerned and since some of the accused were acquitted by the trial Court and the State of U. P. had not preferred any appeal against their acquittal, there is no ground to discard the testimony of the prosecution witnesses in toto regarding complicity of appellants also. 33. 33. Lastly it was contended by the learned Counsel for the appellants that according to the prosecution as many as 17 persons participated in the incident and the case of the prosecution was that all the above persons formed unlawful assembly and in prosecution of the common object of such unlawful assembly caused death of Suraj Singh and injuries to other witnesses of the prosecution. That as many as eight accused were acquitted by the trial Court and, therefore, the common object to cause death by the appellants was not established beyond reasonable doubt and the evidence does not lead to the conclusion that the appellants alone caused injuries to the deceased and, therefore, they cannot be attributed for sharing common object in committing culpable homicide amounting to murder. 34. The case of the prosecution was that initially Ram Prasad and Ram Avtar met Natthu Singh P. W. 1 near Mata Ka Than and they attacked on him with spear and lathi. Natthu Singh also attacked on them with lathi and raised alarm. Hearing his shrieks, Suraj Singh, deceased, Kallu Singh, P. W. 3 Bhanwar Singh, P. W. 4 Mitthu Singh, Tej Singh and Reshampal came there. Observing the above persons other appellants and accused persons also came to the spot armed with spear, bomb, country made pistol and lathis. This shows that all the appellants and other accused persons had not pre-planned to cause the murder of Suraj Singh. The trial Court disbelieved the presence of Suraj Pal son of Revati and Babu Ram who were allegedly having bombs and Chiranji Lal, Anar Singh, Chandra Pal, Net Ram, Atar Singh, Gajraj and Taleshwar, who were having lathis. Therefore, those persons were not members of unlawful assembly, while according to the prosecution they had come to the spot alongwith the appellants and the allegation against all the appellants and other accused persons was that they were members of unlawful assembly. 35. The question of determining common object or common intention in the cases of the convicted persons, where a large number of persons are involved and some of them were acquitted and the State chooses not to file any appeal arose before the Apex Court in the case of Nadodi Jayraman (supra ). In the said case according to the prosecution injuries were caused to the deceased not only by A-2 and A-3 but other accused also, who stood acquitted. In the said case according to the prosecution injuries were caused to the deceased not only by A-2 and A-3 but other accused also, who stood acquitted. It was found that in the face of said evidence it could not be postulated that two appellants alone caused all injuries to the deceased and that too with common intention to cause his death. In the above circumstances it was held that the evidence on record does not lead to the conclusion that A-2 and A-3 alone caused all the injuries to the deceased with intention to cause his death. The broad circumstances of the case impel to hold that the common intention of A-2 and A-3 was not to cause death of the victim and, therefore, neither of them can be held guilty of the offence under Section 302/34 IPC. It was further held that since the deceased succumbed to the injuries caused collectively, the appellants can only be held guilty of committing culpable homicide, not amounting to murder. 36. In the instant case the deceased had sustained two punctured wounds, one of the size of 2 cm x 1 cm x cavity deep on outer at right abdomen and other of the size 2. 5 x 0. 5 cm x bone deep on right temple and cause of death was shock and haemorrhage, as a result of above injuries. The prosecution has assigned spear to appellant Dev Singh and Ram Avtar. The deceased had not sustained any fire arm injury or blunt object injury. As narrated above, all the accused had not come to the spot simultaneously, but they came in two phases. It is also clear that the appellants and other accused, except Ram Prasad and Ram Avtar came to the spot only when Suraj Singh, Kallu Singh, Bhanwar Singh, Mitthu Singh, Tej Singh and Reshampal came to the spot. Coming on the spot in two phases sustaining only two punctured wounds by the deceased and no injury of other weapon like lathi or country made pistol and acquittal of eight accused who were assigned the role of having lathi and bombs indicated that all the appellants and other accused had no common object and they came to the spot to help Ram Avtar and Ram Prasad. Moreover, the deceased had sustained only two punctured wounds and two appellants namely, Dev Singh and Ram Avtar were assigned the role of having spear. It is not clear from the evidence whether two punctured wounds on the deceased were caused by the above two appellants or only by one appellant, while the evidence of the prosecution is that all the appellants and other accused who were acquitted caused injuries with their respective weapons. From the judgment of the trial Court it can not be said that individual role of each of the appellants was taken into consideration for ascertaining their intention. The deceased had no blunt object or fire arm injury, still the appellant Ram Prasad, Mihilal, Havaldar having lathis and Sheo Dan and Suraj Bhan having country made pistols were also convicted under Section 302 read with Section 149 IPC. The observation of the trial Court thus, shows that the appellants having lathis, country made pistols and bombs had no common object. Therefore, how the appellants alone having lathis and country made pistols could be attributed to the sharing of common object of committing murder of deceased. In these circumstances, considering the facts and circumstances of the case the manner in which the appellants and other accused came to spot, injuries sustained by the deceased and acquittal of as many as 9 accused having assigned sharing of common object, we find that the appellants cannot be attributed of sharing common object of committing murder of the deceased. It may be contended that since the deceased had sustained only punctured wound, which resulted into his death, the appellants who were assigned the role of having spear i. e. , Deo Singh and Ram Avtar could be attributed of committing murder of the deceased with common intention. For convicting a particular accused for his individual role there must be evidence that only those appellants exclusively caused the injuries to the deceased, which resulted into his death. In the instant case it is not clear from the evidence on record as to which of the particular appellants having spear caused injuries to the deceased, therefore, the individual role in the instant case cannot be made basis for ascertaining the intention. 37. In the instant case it is not clear from the evidence on record as to which of the particular appellants having spear caused injuries to the deceased, therefore, the individual role in the instant case cannot be made basis for ascertaining the intention. 37. In these circumstances we are of the view that since the deceased succumbed to his injuries caused by some of the appellants and all the appellants acted collectively, the appellants could be held guilty of committing culpable homicide, not amounting to murder as they had no common object of committing murder of the deceased, but were having knowledge that the spear injury caused to the deceased might result into his death. Therefore, the appellants were wrongly convicted under Section 302 read with Section 149 IPC and their liability comes only for the offence punishable under Section 304 Part II read with Section 149 IPC. 38. The appeal thus, partly succeeds. 39. The appeal preferred by Ram Prasad, Mihilal and Havaldar already stood abated. The appeal preferred by appellants Sheo Dan, Suraj Bhan, Dev Singh and Ram Avtar is partly allowed and their conviction under Section 302 read with Section 149 IPC is set aside and instead of it they are convicted under Section 304 Part II read with Section 149 IPC and are sentenced to undergo RI for a period of seven years under Section 304 Part II read with Section 149 IPC. However, their conviction and sentence under Sections 148 and 307 read with Section 149 IPC is maintained. 40. The appellants are on bail. They shall surrender before the CJM concerned to serve out the sentences. 41. The CJM concerned is directed to issue non-bailable warrants against the appellants to secure their arrest and to send them to jail. Appeal partly allowed. .