Judgment Mohammad Rafiq, J.-This criminal appeal has been preferred by the appellants against the Judgment dated 17.09.2002 passed by the Additional Sessions Judge, Dausa in Sessions Case No. 5/96 convicting the accused appellants for offence under Section 302/34, IPC sentencing each of them to undergo rigorous imprisonment for life and pay fine of Rs. 5,000/-and in default of payment thereof to further undergo rigorous imprisonment for three months and also convicting each of them for the offence under Section 307/34, IPC and sentencing to undergo rigorous imprisonment for five years and pay fine of Rs. 1,000/-and in default of payment thereof to further undergo rigorous imprisonment for two months. 2. The prosecution story as unfolded in the written report submitted by the complainant Savaliya S/o Jagannath at the Police Station Lalsot on 14.09.1995 at 11 AM is that the complainant party was having agricultural land of Khasra No. 39 in village Bhatlana which land was owned by Mool Chand and Dhulia. There was a dispute between them with regard to boundary [Dol] dividing two fields. While the complainant party was repairing the Dol at about 8 AM in the morning on 14.09.1995, Ganga Bishan, Sheopal, Bhonri Lal, Lallu, Hajari, Khiladi, and Gopi were also working in their agriculture fields situated in the vicinity. Suddenly at that time accused Kajod, Babu, Mulya, Ram Phool, Badri, Dhanys, Giriraj, Ram Khiladi, Mst. Gonidi, Mst. Gandodi, Mst. Prem & Mst. Kali all armed with Talwar, Lathi, Gandasa, Tarwar, Knife came there. Seeing them attack complainant party, other farmers working in the fields of vicinity namely; Ganga Bishan, Sheopal, Bhonri Lal,Lallu, Hajari, Khiladi, and Gopi came to their rescue. The accused party, however, also started beating them. Resultantly Ganga Bishan received serious injury on his head, Sheopal , Bhonri Lal, Lallu, Hajari, Khiladi and Gopi also received injuries on their head and other parts of the body. This incident was witnessed by Nanga and Balla who were present at the site. The complaint and Jainarayan were seeing the incident from a distance and ran away from there out of fear, therefore, did not receive any injued. The injury were immediately rushed to hospital at Lalsot. 3. On the basis of aforesaid written report received from complainant Sawaliya, regular first information report was registered at Police Station Lalsot against the accused for offences under Sections 147, 149, 323, 447 & 307, IPC and investigation commenced. The injury were immediately rushed to hospital at Lalsot. 3. On the basis of aforesaid written report received from complainant Sawaliya, regular first information report was registered at Police Station Lalsot against the accused for offences under Sections 147, 149, 323, 447 & 307, IPC and investigation commenced. During the course of investigation, injured Bhonrilal succumbed to the injuries received by him. Hence, offence under Section 302, IPC was also added to the ongoing investigation. On completion of investigation, the charge sheet against the accused was filed. 4. Learned trial Court framed the charges against the accused Babulal and Ramphool for offences under Sections 147, 148, 323, 324, 326, 307 and 302/149, IPC and against Kajod and Khiladi for offences under Sections 147, 148, 323, 324/149, 326/149, 307/149 and 302, IPC against Kali, Govindi, Dhania, Girraj and Dhulia for offences under Sections 147, 148, 323, 324/149, 326/149, 307/149 and 302/149, IPC. The prosecution examined 24 witnesses to prove the charges against the accused and exhibited 48 documents. On the other hand the defence exhibited as many as 17 documents. On the conclusion of the trial, the Additional Sessions Judge after hearing the arguments of the parties finally convicted and sentenced afore-mentioned four accused for the offence as indicated above and acquitted other accused namely; Dhania, Dhulia, Girraj, Mst. Kali & Mst. Govindi giving them the benefit of doubt. 5. Feeling aggrieved thereby, the appellants have preferred the present appeal. 6. We have heard Shri Biri Singh Sinsinwar and Shri Kamlendra Sihag, learned counsel appearing for the accused appellants and Shri R.P. Kuldeep, Public Prosecutor for the state and Shri G.P. Kaushik, for the complainant and perused the record. 7. Counsel for appellants has argued that the complainant party was aggressor and attacked the accused first. He argued that there was a land dispute between the parties specially on the location of Dol [Sand Wall]. The ACM, Lalsot had passed a restrain order directing the complainant party not to disturb the sand wall situated at Khasra No. 39 and had appointed a Court Commissioner to examine the status of the sand wall on site. The Court Commissioner fixed 15.09.1995 as the date for examination of the site. However, a day prior to date of inspection fixed by the Court Commissioner, the complainant party tried to change the location of the Dol much against the orders passed by the Court. The Court Commissioner fixed 15.09.1995 as the date for examination of the site. However, a day prior to date of inspection fixed by the Court Commissioner, the complainant party tried to change the location of the Dol much against the orders passed by the Court. According to the learned Counsel for appellants, this sudden provocation gave right to the incident for which complainant party was aggressor having disobeyed the command of the Revenue Court. Accused persons merely tried to save their property and defend themselves and thus in the process also received injuries. Cross cases were registered by the parties against each other. During the course of investigation, Investigating Officer found that the disputed Khasra No. 39/1 was owned by the accused party which further proved that it was complainant party who was aggressor. 8. Learned Counsel for appellants further argued that death of Bhorilal has taken place fifteen days after the incident inasmuch as Bhorilal was admitted to SMS Hospital on 14.09.1995 where he died on 29.09.1995. It cannot, therefore, said that injury received by the deceased Bhorilal during incident was immediate cause of his death. The trial Court has based its finding recorded in the Judgment on the testimony of PW. 3 Khiladi, PW. 4 Gopiram, PW. 7 Sheopal, PW. 8 Lallu all of whom are interested witnesses being relatives of the complainant. Even otherwise, their statements suffer from numerous contradictions which too have been overlooked by the trial Court. 9. Learned Counsel for appellant further argued that the complainant party has not given any explanation whatsoever of the injuries received by the accused and this vital aspect has been completely ignored by the learned trial Court. No independent witness has been examined to bring on record true version as to genesis of the incident although the land was surrounded by so many other fields where the neighboring farmers were working at the relevant time. 10. Learned Counsel for appellants also argued that the injury allegedly caused by Gandasi on the head of injured Ganga Bishan cannot be taken to have been proved because even his X-ray plate was not produced before the Court. He argued that out of 120 ft. long sand wall, 20-25 ft. long sand wall was demolished by Jainarayan and Sawaliya and, therefore, they were aggressor. He argued that out of 120 ft. long sand wall, 20-25 ft. long sand wall was demolished by Jainarayan and Sawaliya and, therefore, they were aggressor. None of the weapons allegedly used in the crime were sent for examination by Foreignsic Science Laboratory and there is no report on record that they were blood stained. Counsel further argued that PW . 10 Chandra Bhan, Investigating Officer in his statement has stated that he recorded the statement of injured Ganga Bishan at Lolsot, but that statement was not available on record. In fact, his statement was recorded very much delayed three months after the date of incident on 1.012.95 and no explanation whatsoever as to delay was given by the prosecution. 11. Admittedly, incident in question has taken place on account of dispute of boundary between the two agricultural fields of respective parties. The disputed land of Khasra No. 39/1 is owned by the accused persons. The accused party filed one revenue suit before ACM, Lalsot regarding dispute of this sand wall [Dol] between two fields. ACM, by passing a restrain order in the said revenue suit directed the complainant party not to disturb the sand wall. He also simultaneously appointed a Court Commissioner to inspect the site and submit his report. The Court Commissioner fixed 15.09.1995 as the day for inspection. It has come on record that 20-25 ft. wall was demolished by the members of complainant party. When 20-25 ft. long sand wall was broken, the members of the accused party came to the site of the incident. The complainant party, however, in their first information report tried to explain that they were trying to clean the Dol, but they have not made clear admission that they had broken the Dol. The accused party apprehended that the complainant by demolishing the sand wall would alter the position of the site which may prejudice their case in the Revenue Court as the Court Commissioner was scheduled to visit the following day. This gave rise to sudden provocation and the accused persons got entangled in fight with the complainant party. The deceased Bhorilal, injured Ganga Bishan who were neighbourers came there to intervene in the free fight which ensued between the parties. Resultantly, deceased Bhorilal sustained four injuries as per post mortem report Exhibit P. 44 proved by PW. 20 Dr. P.C. Vyas. The deceased Bhorilal, injured Ganga Bishan who were neighbourers came there to intervene in the free fight which ensued between the parties. Resultantly, deceased Bhorilal sustained four injuries as per post mortem report Exhibit P. 44 proved by PW. 20 Dr. P.C. Vyas. In his opinion, cause of death was described as Coma as a result of injuries to skull and brain which were certified to be sufficient to cause death in ordinary course of nature. 12. Learned Public Prosecutor, however, supported the Judgment passed by the learned trial Court. He argued that the learned trial Court has analyzed and appreciated the evidence available on record in its true perspective and in the process ultimately separated grain from chaff . The learned trial Court has convicted only such accused against whom it found the case proved and acquitted the rest of those whose guilt could not be proved beyond reasonable doubt. 13. Learned Public Prosecutor further argued that while Kajod and Ramkhiladi have been specifically named by eye-witnesses as those who inflicted lathi blows on the head of deceased Bhorilal, whereas accused Ramphool and Babulal have been assigned injuries caused to the person of injured Ganga Bishan by sharp-aged weapon. He argued that all the accused shared a common intention. Even if the complainant party had tinkered with the sand wall agricultural dividing fields of two parties, the accused had no right to take the law in their hands and indulge in crime particularly when the revenue suit was already pending between the parties. He, therefore, argued that conviction and sentence passed by the learned trial Court against all the accused appellants should be maintained. 14. Wehave given out thoughtful consideration to the arguments advanced at bar and perused the record. 15. Three conclusion emerge from the aforesaid discussion and they are that firstly, it was the complainant party who initially violated the injunction order passed by revenue Court and tinkered with the sand wall with a view to altering its status as obtaining on that day. Secondly, this gave rise to sudden provocation to the accused party who rushed to the site of the wall and wanted to prevent it from being demolished/altered. However, when the wall was demolished free fight ensued between parties. Secondly, this gave rise to sudden provocation to the accused party who rushed to the site of the wall and wanted to prevent it from being demolished/altered. However, when the wall was demolished free fight ensued between parties. Thirdly, the farmers of the neighboring fields deceased Bhorilal, Ganga Bishan, Sheopal, Lallu, Hazari, Khilari, Gopi also rushed to the site of the incident to intervene and in the process some of them sustained injuries apart from the accused. It is also evident from the record that cross case was also registered against the complainant party by the accused and certain accused persons have also received injuries of which there can be explanation except that a free fight took place between the parties. In these circumstances, it can be reasonable inferred from the evidence available on record and the attending circumstances that it was a case where the accused party tried to exercise their right of defence to their property and in the process exceeded such right in which members from both the parties received injuries. 16. From the statements of PW . 5 Balla, PW . 18 Ganga Bishan, PW . 24 Hazari, PW . 23 Sawal Ram, PW . 3 Khilari, PW . 4 Gopi Ram and PW . 8 Lallu, it emerges that it was complainant party who initially started tinkering with the sand wall and this resulted in a free fight between the parties. Deceased Bhorilal has been identified as a neighboring farmer by most of the witnesses, who have stated that he came there to intervene and was suddenly hit by lathi on the head. The accused persons had no enmity with Bhorilal and, therefore, in the circumstances, it is difficult for us to hold that he was hit by the accused on the head giving blow in question either with intention of causing his death or knowing that death would otherwise be inevitable result of such blow. In these circumstances, while we hold that deceased Bhorilal was hit on the head by lathi by the accused Ramkhilari and Kajod but we hold them responsible for committing offence only under Section 304, Part II, IPC read with Section 34, IPC and the prosecution case that they committed the offence under Section 302 read with Section 24, IPC cannot be accepted qua them. 17. 17. We are fortified in our view by the law propounded by the Apex Court in [1] Kunhayippu vs. State of Kerala, 2000 (10) SCC 307 and in [2] Camilo Vaz vs. State of Goa, 2000 (9) SCC 1 . In the first case the accused deceased were in friendly mood when one asked for a glass of juice for the other. Shortly thereafter while the deceased had left the shop of PW . 1, the accused went behind and gave the blow in question on the abdomen and further, the blow in question had been given from the back side and only a single blow had been given. In these circumstances, their lordships were of the view that it is difficult for us to hold that the accused can be said to have the necessary intention of causing the murder of deceased while giving the blow in question, though ultimately the blow had become fatal. In the later case, the accused hit a danda on the head of deceased with such force that deceased fell down and later succumbed to his injury. The Apex Court found that there was no evidence to show that the appellant was bent upon killing the deceased. In these circumstances their lordships held that the act of the appellant in hitting the deceased was done with the knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death. Again in [3] Bhera vs. State of Rajasthan, 2000 (10) SCC 225 , the accused while quarreling suddenly brought out a knife in anger and struck a knife blow on the chest of the deceased, which resulted in death of the deceased. Their Lordships in these circumstances, held that it cannot be said that the accused gave knife below with the requisite intention of causing murder of deceased and accordingly the accused was convicted under Section 304, Part II, IPC. 18. So far as other co-accused Ramphool and Babu are concerned, there is no evidence against them that they caused grievous hurt on the head of the deceased Bhorilal. It has also not come on record that they shared any common intention with Ramkrishan and Kajod leading to the doing of criminal act in furtherance of such intention. 18. So far as other co-accused Ramphool and Babu are concerned, there is no evidence against them that they caused grievous hurt on the head of the deceased Bhorilal. It has also not come on record that they shared any common intention with Ramkrishan and Kajod leading to the doing of criminal act in furtherance of such intention. Even otherwise, there is no evidence that they caused any blow on the person of deceased. In these circumstances, we do not find that charge for offence under Section 302/34, IPC has been proved against them. 19. Now comes the question of the conviction recorded by the learned trial Court for offence under Section 307/34, IPC against all the accused persons. Learned trial Court has found this charge proved against all the accused appellants on account of grievous hurt received by injured Ganga Bishan on his head. The injury report of Ganga Bishan Exhibit P. 47 according to which the injury No. 1was received by him was stitched wound 10 cm x 8 cm on right side parietal to temporal region anteriorly vertically placed with fresh clotted blood. The injury report Exhibit P. 47 has been proved by PW. 22 Dr. O.P. Saini who however failed to give any report as to nature of injury or whether the injury was sufficient to cause death in the ordinary course of nature. Injured Ganga Bishan has been examined as PW. 18. Shri Chandra Bhan, PW. 10 SHO & Investigating Officer has stated that the statement of Ganga Bishan under Section 161, CrPC was recorded by him in the hospital at Lalsot on the same the incident had taken place on 012.99. But if fact is that the statement of injured Ganga Bishan was recorded by the investigating officer almost three months after the date of incident. No evidence has been brought on record for this entire duration of three months whether the injured remained hospitalized or was so seriously injured that he remained unconscious or semi-conscious so as to be unable to give statement. Not only that the PW. 22 Dr. OP Saini has not proved his fatal injury sustained by him to be sufficient as to cause of death in ordinary course of nature, but the prosecution also has not brought on record X-Ray plate even to prove the basic fact that injured had sustained fracture on skull. Not only that the PW. 22 Dr. OP Saini has not proved his fatal injury sustained by him to be sufficient as to cause of death in ordinary course of nature, but the prosecution also has not brought on record X-Ray plate even to prove the basic fact that injured had sustained fracture on skull. In these circumstances, the alleged injury caused to the person Ganga Bishan on his head cannot be taken to have been proved beyond reasonable doubt so as to bring quilt of the accused for offence under Section 307/34, IPC. We, therefore, acquit the accused appellants for offence under Section 307/34, IPC giving them benefit of doubt. 20. For these reasons, we dispose of the instant appeal in the following terms:- .(i) We allow the appeal of appellants Ramphool and Babu Lal and set aside their conviction and sentence rendered in impugned Judgment dated 17.09.2002. We acquit them of the charge under Sections 302/34 and 307/34, IPC. Appellant Ramphool and Babu Lal are on bail, they need not surrender and their bail bonds stand discharged. .(ii) We partly allow the appeal of appellants Ram Khiladi and Kajod and instead of Section 302/34 we convict them under Section 304, Part II read with 34, IPC. Looking to the fact that the appellants Ram Khiladi and Kajod have already undergone the confinement for a period of more than 5 years, the ends of justice would be met in sentencing them to the period already undergone by them in confinement. We however acquit the appellants Ram Khiladi and Kajod of the charge under Section 307/34, IPC. The appellants Ram Khiladi and Kajod, who are in jail shall be set at liberty forthwith, if not required to be detained in any other case. (iii) The impugned Judgment of learned trial Judge stands modified as indicated above.