Honble SHARMA, J.–The appellants, five in number along with three others, were placed on trial before the learned Additional Sessions Judge (Fast Track) Behror District Alwar in Sessions Case No. 18/2002 (14/2002). Learned Judge vide judgment dated September 18, 2003 convicted and sentenced the appellants as under:– (1) Mukesh Chand, (2) Vijay Singh, (3) Ramchandra, (4) Kanhaiya Lal and (5) Nannu Ram: U/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer three months simple imprisonment. U/s. 148 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 200/-, in default to further suffer one month simple imprisonment. U/s. 323 IPC: Each to suffer rigorous imprisonment for six months and fine of Rs. 200/-, in default to further suffer one month simple imprisonment. U/s. 447 IPC: Each to suffer rigorous imprisonment for one month. All sentences were directed to run concurrently. (2). The prosecution case as unfolded during trial is that on December 27, 2000 informant Suresh (Pw.1) submitted a written report with the Police Station Bansoor stating therein that at 12.00 Noon while the informant was irrigating the field, the accused persons armed with sword and lathis came and asked the complainant not to take water through their field and started breaking the pipeline, when complainant party tried to obstruct, accused Kanhaiya Lal gave sword blow on the head of Gauri Sahai (since deceased), Mukesh also inflicted lathi blow that laid on the head of Gauri Sahai as a result of which he fell down. Accused Ram Chand caused lathi blow on the head and hand of informant whereas Mukesh gave lathi blow on his left foot. On hearing hue and cry Vikram, Munesh, Subhash, Kaushalya and Laxmi arrived but they were also beaten up. Police Station Bansoor registered a case under section 147, 148, 149, 323 and 447 IPC and investigation commenced. During the course of investigation Gauri Sahai succumbed to his injuries and the case was converted into one under section 302 IPC. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Behror District Alwar. Charges under sections 148, 447, 323 and 302/149 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 23 witnesses. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Behror District Alwar. Charges under sections 148, 447, 323 and 302/149 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 23 witnesses. In the explanation under section 313 Cr.P.C., the accused claimed innocence and stated that they were beaten up by complainant party in Kasniwala field and the case was pending against complainant party. Two witnesses were examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants Mukesh Chand, Vijay Singh, Ramchandra, Kanhaiya Lal and Nannu Ram as indicated herein above, but acquitted co-accused Ghasi Ram, Mst. Lali Devi and Mst. Kamlesh @ Kamla. (3). We have heard the arguments of learned counsel for the appellants and learned Public Prosecutor and gone through the entire evidence on record. Before we deal with the contentions raised, it will be appropriate to take stock of the injuries sustained by the complainant and the accused parties. (4). As per postmortem report (Ex.P-34) deceased Gauri Sahai sustained following ante mortem injuries:– 1. Stitched wound 23cm long left fronto parieto temporal region done surgically. 2. Stitched wound 20 cm Rt. fronto parieto temporal region done surgically. 3. Bruise bluish colour 4 x 2 upper side tempro parietal region diffuse swelling on Ex. sub scalp haematoma diffusely on both fronto parietal region. On Ex. five burn hole on left side parieto temporal region. Stitches applied craniotomy done bone flap 7 x 10 left parieto temporal replace by stitches. Rt. side 11 x 4cm (Re) parietal bone found missing gel foam found. Dura found stitched. Brain oedametus congested contusion on upper part of temporal region with little sub dural haematoma present. Brain is little soft. 4. Bruise 3 x 3 cm (Rt.) external chest bluish colour. 5. Abraded bruise 2 x 1/2 with hard & cab under lying. The cause of death in the opinion of Dr. Sumant Datta (Pw.19), who performed autopsy on the dead body, was coma brought as a result of head injury to skull, brain. The injury No. 3 was sufficient to cause death. (5). The injuries sustained by Gauri Sahai were also examined prior to his death vide injury report (Ex.P-18):– (1) Lacerated wound-swelling 3 x 1cm Rt. Sumant Datta (Pw.19), who performed autopsy on the dead body, was coma brought as a result of head injury to skull, brain. The injury No. 3 was sufficient to cause death. (5). The injuries sustained by Gauri Sahai were also examined prior to his death vide injury report (Ex.P-18):– (1) Lacerated wound-swelling 3 x 1cm Rt. Parietal region (2) Lacerated wound 2 x 2cm Rt. Parietal region 2cm above and posterior to No. 1. (3) Bruise 8 x 3 Rt. Infra scapular region. (6). Munesh (Pw.2) vide injury report (Ex.P-19) sustained following injuries:– 1. Bruise 4 x 2 cm reddish Rt. fore arm mid. 1/3 posterior laterally. 2. Abrasion 2 x 1/2cm Rt. Forearm lower 1/3 laterally. 3. Bruise 4 x 2cm Rt. leg lower 1/3 laterally. 4. Abrasion 3 x 2cm Rt. thigh lower 1/3 laterally 5. C/o pain Rt. thigh, upper limb. (7). Vikram Singh (Pw.4) vide injury report (Ex.P-20) received following injuries:– 1. Lacerated wound 3 x 1 cm bone deep Lt. parietal region. 2. Lacerated wound 4 x 1 cm Vertek posteriorly. 3. Abrasion 2 x 1 cm Lt. fore arm lower 1/3 laterally. 4. Bruise 10 x 2 reddish Lt. leg obliquely lower 1/2 laterally. 5. Abrasion 1 x 1 cm Lt. hand dorsally base of thumb. (8). Suresh (Pw.1) vide injury report (Ex.P-21) received following injuries:– 1. Lacerated wound 4 x 1cm bone deep Vertex Antero posterior. 2. Bruise-swelling 6 x 2 cm reddish Lt. Forearm postero laterally oblique upper 1/2. 3. Abrasion 2 x 1 cm Lt. forearm posteriorly lower 1/2 4. Abrasion 3 x 1 cm mid arm laterally. 5. Abrasion 1 x 1 cm Lt. knee laterally. (9). Subhash (Pw.3) vide injury report (Ex.P-22) received following injuries:– 1. Lacerated wound 1/2 x 1/3 cm Rt. hand little finger, dorsally proximal phalanges. 2. Abrasion 1/2 x 1/2 cm Ring finger palm surface distance phalanges. 3. Bruise 6 x 3 cm reddish Lt. Deltoid region. 4. Abrasion 4 x 1/2 cm Lt. thigh lower 1/3 laterally. (10). Kaushalya (Pw.5) vide injury report (Ex.P-23) sustained following injuries:– 1. Lacerated wound 1 x 1 cm forehead centrally placed. 2. Lacerated wound 2 x 1 cm muscle deep occipital region. 3. Bruise 6 x 3 cm reddish Lt. deltoid region. 4. Bruise 5 x 3 cm Lt. Supra scapular region. 5. Bruise 10 x 3 cm Lt. Forearm simple antero laterally. (11). Lacerated wound 1 x 1 cm forehead centrally placed. 2. Lacerated wound 2 x 1 cm muscle deep occipital region. 3. Bruise 6 x 3 cm reddish Lt. deltoid region. 4. Bruise 5 x 3 cm Lt. Supra scapular region. 5. Bruise 10 x 3 cm Lt. Forearm simple antero laterally. (11). Chhimalli (Pw.6) vide injury report (Ex.P-24) sustained following injuries:– 1. C/o pain, swelling Rt. wrist joint. 2. Bruise 5 x 4 cm Lt. lumber region. 3. Abrasion 1 x 1 cm Lt. renal angle region. (12). Accused appellant Kanhaiya Lal vide injury report (Ex.D-10) received following injuries:– 1. Lacerated wound 1 x 1 cm distal phalanges of middle finger of Rt. hand palmer aspect. 2. Bruise 6 x 3 cm reddish Rt. intra scapular region oblique 3. Abrasion 1 x 1 cm Lt. hand dorsally 4. C/o pain swelling of Rt. hand (13). Accused Ghasi vide injury report (Ex.D-11) sustained following injuries:– 1. Bruise-swelling 4 x 2 cm reddish Lt. arm lower 1/3 laterally 2. C/o pain B/L intra scapular region. (14). Accused appellant Mukesh Chand vide injury report (Ex.D-12) sustained following injuries:– 1. Bruise-swelling 6 x 4 cm reddish Lt. intra scapular region 2. Abrasion 1 x 1/2 cm reddish Rt. elbow (15). Accused Lali vide injury report (Ex.D-13) sustained following injuries:– 1. Lacerated wound 4 x 1 cm Vertex Antro posterior bone deep 2. Abrasion-swelling 1 x 1 cm reddish Lt. Forearm postero laterally lower 1/3. (16). Accused appellant Nannu Ram vide injury report (Ex.D-14) sustained following injuries:– 1. Lacerated wound 3 x 1 cm Occipital region bone deep Rt. side. 2. Abrasion 1 x 1 cm Rt. hand dorsally 3. Lacerated wound 2 x 1/2 cm Lt. forearm posteriorly mid 1/3. (17). Accused Kamlesh vide injury report (Ex.D-15) sustained following injuries:– 1. Abrasion 1/2 x 1/2 cm Lt. hand dorsally. 2. Abrasion 1 x 1 cm base of lt. hand thumb dorsally. 3. Bruise 4 x 2cm reddish Lt. thigh mid 1/3 laterally. (18). Accused appellant Vijay Singh vide injury report (Ex.D-16) sustained following injuries:– 1. Lacerated wound 6 x 2cm bone deep Vertex posteriorly. 2. Abrasion 1/2 x 1/2 cm reddish lt. hand middle finger dorsally proximal phalanges. (19). Accused appellant Ram Chandra vide injury report (Ex.D-17) sustained following injuries:– 1. Lacerated wound 2 x 1/2 cm Lt. eye brow laterally. 2. Abrasion 10 x 3 cm reddish scab Lt. thigh posteriorly. (20). Lacerated wound 6 x 2cm bone deep Vertex posteriorly. 2. Abrasion 1/2 x 1/2 cm reddish lt. hand middle finger dorsally proximal phalanges. (19). Accused appellant Ram Chandra vide injury report (Ex.D-17) sustained following injuries:– 1. Lacerated wound 2 x 1/2 cm Lt. eye brow laterally. 2. Abrasion 10 x 3 cm reddish scab Lt. thigh posteriorly. (20). It is canvassed by the learned counsel for the accused appellants that the court below failed to consider that the complainant party and the accused party both had a common well. On the date of incident the dispute started at common well. Taking us through the site plan (Ex.P-3) learned counsel contended that initially the incident started at the place marked `X thereafter the injuries and deceased sustained injuries at places marked `X-1 and `X-2. The place marked `X that situated near common well, had been in the possession of the accused appellants. The complainant party thus was the aggressor. The prosecution could not establish that the accused appellants went to the places `X-1 and `X-2 for causing injuries to the complainant party. It is further contended that in the FIR Kanhaiya Lal is alleged to have inflicted a sword blow on the head of Gauri Sahai and Mukesh a lathi blow on his head, but at the trial the eye witnesses completely changed their earlier version and deposed that Kanhaiya Lal gave Pharsi blow whereas Mukesh inflicted lathi blow on the head of Gauri Sahai. It is further urged that prior to the death the deceased was medically examined by Dr. Subhash Yadav (Pw.15) who found two injuries on the head and one on the shoulder of Gauri Sahai vide Ex.P-18. No sharp injury was found on the person of deceased. The deceased thereafter was referred to SMS Hospital where he got operated. Dr. Sumant Datta (Pw.19), who performed autopsy on the dead body, found three injuries on the head of deceased and two on other part of his body. The cause of death was injury No. 3, which was on the left side of tempo parietal region. It is further contended that as per FIR accused Kanhaiya Lal was having sword but at the trial it came out that Kanhaiya Lal was having Pharsi and the recovery affected at the instance of Kanhaiya Lal was of a lathi. The cause of death was injury No. 3, which was on the left side of tempo parietal region. It is further contended that as per FIR accused Kanhaiya Lal was having sword but at the trial it came out that Kanhaiya Lal was having Pharsi and the recovery affected at the instance of Kanhaiya Lal was of a lathi. It is further contended that independent witnesses Khooba Ram (Pw.11) and Jagmal (Pw.14), who were examined as eye witnesses, did not support the prosecution case. It is further urged that a cross case was registered against the complainant party and the incident occurred at the place marked as `X in the site plan which belong to accused party. It is lastly contended that accused Vijay Singh on the date of incident was 14 years of age and was juvenile, therefore he could not have been tried and convicted. Reliance is placed on Shyam vs. State of Rajasthan, 2002 (2) Cr.L.R. (Raj.) 1352, Subramani vs. State of T.N. (2002) 7 SCC 210 , Vajrapu Sambayya Naidu vs. State of A.P. (2004) 10 SCC 152 and Roopa @ Rup Singh vs. State of Rajasthan, D.B. Criminal Appeal No. 527/2000, decided on January 5, 2005 = RLW 2005(2) Raj. 2029. Per contra learned Public Prosecutor supported the impugned judgment and urged that all the accused have rightly been convicted and sentenced as the prosecution has adduced evidence to establish the charges against them. (21). Having carefully weighed the material on record we notice that the prosecution case is mainly founded on the evidence of Suresh (Pw.1), Munesh (Pw.2), Subhash Chand (Pw.3), Vikram Singh (Pw.4), Kaushalya (Pw.5) and Chhimali (Pw.6). Corroborating the FIR informant Suresh (Pw.1) deposed that while he was watering his field the accused came with lathis and pharsis. Kanhaiya gave Pharsi blow on the head of Gauri Sahai, whereas Ram Chandra & Mukesh gave lathi blows on his head. Gauri Sahai then became unconscious. Munesh, Vikram, Subhash, Kaushalya and Chhimali tried to intervene but they were also beaten up. According to Suresh there was no prior enmity and the incident occurred because of water dispute. In his cross examination he however stated that the water used to be carried through the joint `Dola. He further admitted that while he was carrying water through pipes the accused protested and broke open the pipes. According to Suresh there was no prior enmity and the incident occurred because of water dispute. In his cross examination he however stated that the water used to be carried through the joint `Dola. He further admitted that while he was carrying water through pipes the accused protested and broke open the pipes. He also admitted that in the police statement (Ex.D-1) and in the FIR (Ex.P-1) he could not state that the water was being carried by him from the joint `Dola. In the FIR he did state that he was carrying water through the field of Ghasi. (22). Munesh (Pw.2) in his deposition stated that Mukesh and Kanhaiya gave Pharsi blows on the head of Gauri Sahai. When he tried to intervene Vijay Singh gave lathi blow on his right hand and Mukesh at the ankle of his right leg. Kanhaiya gave lathi blow on his knee and others were beating Gauri Sahai and Suresh. Munesh further stated that the pipe line was being used to watering the field of both the parties and the water dispute was the cause of quarrel. (23). Subhash (Pw.3), Vikram Singh (Pw.4), Kaushalya (Pw.5) and Chhimali (Pw.6) also corroborated the testimony of informant Suresh (Pw.1), Subhash (Pw.3) however stated that as the pipe line was passing through the field of the accused, the quarred took place. (24). Factual situation of the case may be summarised thus:– (i) Accused appellants Kanhaiya Lal, Nannu Ram, Vijay Singh and Ram Chandra sustained lacerated wounds. The lacerated wounds received by Nannu Ram was on the occipital region whereas Ram Chandra sustained one left eye brow but the prosecution failed to give any explanation for such injuries. (ii) There was no prior enmity between the complainant party and the accused and the incident occurred all of a sudden because of water dispute. (iii) The prosecution failed to establish that the accused were the aggressor. Even as per the testimony of informant Suresh, the water was taken through the pipe line which was lying on the field of the accused Ghasi. (25). Their Lordships of Supreme Court in Subramani vs. State of T.N. in regard to non explanation of injuries sustained by the accused indicated as under:– ``The appellants suffered injuries on vital parts of the body, even though simple but the prosecution failed to give any explanation for such injuries. (25). Their Lordships of Supreme Court in Subramani vs. State of T.N. in regard to non explanation of injuries sustained by the accused indicated as under:– ``The appellants suffered injuries on vital parts of the body, even though simple but the prosecution failed to give any explanation for such injuries. The prosecution feigned ignorance about the injuries suffered by the appellants. It is not possible to accept the submission that the injuries being simple, the prosecution was not obliged to give any explanation for the same. Having regard to the facts of the case the omission on the part of the prosecution to explain the injuries on the person of the accused may give rise to the inference that the prosecution is guilty of suppressing the genesis and the origin of the occurrence and had thus not presented the true version. (26). In Vajrapu Sambayya Naidu vs. State of A.P. (supra) the Apex Court held that where the injuries sustained by the accused were not explained by the prosecution it probabilise the case of defence that the prosecution party was the aggressor. (27). It is well settled that where the charge against the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention described in Section 299 of the Penal Code. It is only after the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the accused had acted in the exercise of his right of private defence, arises. (28). In Mohd. Ramzani vs. State of Delhi ( AIR 1980 SC 1341 ), the Honble Supreme Court indicated that the onus which rests on an accused person under Section 105, Evidence Act, to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged beyond reasonable doubt. A person faced with imminent peril of life and limb of himself or another is not expected to weigh in ``golden scales the precise force needed to repeal the danger. A person faced with imminent peril of life and limb of himself or another is not expected to weigh in ``golden scales the precise force needed to repeal the danger. Even if he at the heat of the moment carries his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it. (29). In Mohinder Pal Jolly vs. State of Punjab ( AIR 1979 SC 577 ), the Honble Supreme Court indicated as under:– ``The onus is on the accused to establish the right of private defence of property or person not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. He might or might not take this plea explicitly or might or might not adduce any evidence in support of it but he can succeed in his plea if he is able to bring out materials in the records of the case on the basis of the evidence of the prosecution witnesses or on other pieces of evidence to show that the apparently criminal act which he committed was justified in exercise of his right of private defence of property or person or both. But the exercise of this right is subject to the limitations and exceptions provided in S. 99 of the Penal Code. (30). In Chuhar Singh vs. State of Punjab ( AIR 1991 SC 1052 ), where in the quarrel was between the accused and deceased the accused received injuries during the course of occurrence causing death of deceased by gun shot, the accused could be said to have exceeded his right of private defence and convicted under Section 304 Part I IPC. Their Lordships of Supreme Court observed as under:– (Para 6) ``Now the question that arises for our consideration is whether the appellant would be entitled for a complete acquittal on the plea of right of private defence of his person. We have no hesitation in coming to the conclusion that the appellant had exceeded his right of private defence of his body when causing the death of the deceased by using the dangerous weapon, namely, the gun and hence he is not entitled for complete acquittal but would be liable to be convicted under Section 304 Part-I IPC. (31). We have no hesitation in coming to the conclusion that the appellant had exceeded his right of private defence of his body when causing the death of the deceased by using the dangerous weapon, namely, the gun and hence he is not entitled for complete acquittal but would be liable to be convicted under Section 304 Part-I IPC. (31). In Devraj and Another vs. State of H.P. (1994 Supp. (2) SCC 552), their Lordships of Supreme Court observed in para 9 as under:– ``As already mentioned, we are concerned only with Dev Raj now. Dev Raj as well as Des Raj undoubtedly received injuries during the same occurrence and when they have taken the plea that they acted in self-defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution. It is not necessary to refer to various decisions where it has been held that the accused if acted on self-defence, need not prove beyond all reasonable doubt and if two views are possible, the accused should be given the benefit of doubt. Having regard to the nature of the injuries on the two accused persons, we find it difficult to hold that their pleas altogether are unfounded. Then the next question would be whether they had exceeded the right of self-defence. Admittedly, the occurrence is said to have taken place in a sudden manner. Even, according to the prosecution, they did not come there armed. A quarrel ensued there and they picked up iron pipes and wooden phattis that were lying there and a clash took place. In such a situation, their plea of right of private defence has to be accepted, but having regard to the injuries inflicted by them on the two deceased persons as well as on PW.23, they have definitely exceeded the right of private defence and the accused are entitled to the benefit of Exception 2 of Section 300 and the offence punishable is one under Section 304 Part II IPC. (32). (32). Division Bench of this Court in Veera vs. State of Rajasthan (1981 (5) RCC 169) indicated that injuries on the person of the accused found immediately after the occurrence but not explained by the Prosecution, accused alleging that his gun went off during the attack by the deceased, plea of self defence proved by the accused and made out by evidence sufficient to acquite him. (33). In Puran vs. State of Rajasthan ( AIR 1976 SC 912 ). It was indicated that where sudden mutual fight ensued between the parties, there is no question of invoking the aid of Section 149 IPC for the purpose of imposing constructive criminal liability. The accused can be convicted only for the injuries caused by him by his individual acts. (34). In the case on hand as already noticed that there was no prior enmity between the complainant party and accused and incident occurred all of a sudden when water was being carried by the pipe line through the field of accused Ghasi. In such a situation it could not have been held that the accused formed unlawful assembly and charges under sections 148 and 149 IPC are not found established. Having regard to the facts of the case, omission on the part of prosecution to explain the injuries on the person of accused gives rise to the inference that the prosecution is guilty of suppressing the genesis and the origin of the occurrence. Admittedly a cross case was registered against the complainant party and accident occurred at the place marked as `X in the site plan which belongs to accused party, therefore the charge under section 447 IPC is also not made out. (35). Accused appellants Kanhaiya and Mukesh who as per the prosecution case inflicted lacerated wounds on the right parietal region of the deceased, themselves sustained injuries. Therefore the totality of circumstances in the instant case justify the inference that the accused Kanhaiya and Mukesh did not intend to cause murder of the deceased. This possibility can not be ruled out that Kanhaiya and Mukesh in order to save themselves inflicted injuries on the person of deceased and had thus exceeded their right of private defence. They can be held guilty for their individual act and are entitled to the benefit of Exception 2 of Section 300 IPC. This possibility can not be ruled out that Kanhaiya and Mukesh in order to save themselves inflicted injuries on the person of deceased and had thus exceeded their right of private defence. They can be held guilty for their individual act and are entitled to the benefit of Exception 2 of Section 300 IPC. Looking to the fact that fee fight ensued and eight accused persons sustained injuries charge under section 300 IPC is not established against the appellants beyond reasonable doubt. (36). As a result of above discussion we dispose of the appeal in following terms:– (i) Appeal of appellants Vijay Singh, Ramchandra and Nannu Ram is allowed and they stand acquitted of the charges under sections 302/149, 148, 323 and 447 IPC. Appellants Vijay Singh and Ramchandra are on bail, they need not surrender and their bail bonds stand discharged. Appellant Nannu Ram, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case. (ii) Appeal of appellants Mukesh Chand and Kanhaiya Lal is partly allowed and each of them is convicted under section 304 Part II IPC and sentenced to suffer Rigorous Imprisonment for five years. They however stand acquitted of the charges under sections 302/149, 148, 323 and 447 IPC. (iii) the impugned judgment of Trial Court stands modified as indicated above.