Judgment ( 1. ) THE appellants have preferred the aforesaid Criminal Appeal before this Court, dissatisfied with the judgment dated 28-3-1997, rendered in sessions Trial No. 216/95, by II Additional Session Judge, Shajapur, thereby convicting the appellants for the offence punishable under Section 302/34, 324/34 and 323 IPC and sentencing each of them to suffer life Imprisonment with fine of Rs. 500/-, in default of payment of fine to suffer 1 month SI for offence under Section 302/34 IPC, and to suffer 3 years RI for under Section 324/34 IPC and 6 months RI for the offence under Section 323/34 IPC. All the sentence were ordered to run concurrently. ( 2. ) THE factual matrix of the prosecution case, as put forth before the trial Court in the charge sheet, is that on 24-8-1995 at 11. 00 a. m. Complalnant (PW 1) Badrilal resident of village Dhanora, was going with bundle of grass. When Badrilal reached in front of the house of Surat Singh, appellant Babu balal was coming from the opposite direction having lathi and Darata in his hand, he deliberately dashed Badrilal, thereafter, abused him and also scolded him saying that he would not able to see whether he was blind. Thereafter, babulal caught hold of the neck of Badrilal and threw him in side the toilet of surat Singh. Appellant Babulal raised alarm upon which other appellants rugnath, Ramesh and Kailash reached over there. They also beat Badrilal by kicks and fists. At that juncture, Heera Lal, father of Badrilal reached over there and asked the appellants as to why they were assaulting Badrilal. All of a sudden appellant No. 4, Ramesh caught hold of Heera Lal and appellant No. 2, Babulal dealt blows by Darata (hard and sharp object) above the waist at left side of the stomach. He also caused injury by Darata on the right side of cheek of Heera Lal. Injuries started severe bleeding. Heera Lal fell on the ground and became unconscious. At this moment, Jagdish (PW 2) brother of complalnant Badrilal also reached over there. He too was assaulted by lathi by appellants No. 3 and 1 kailash and Rugnath. (PW 2) Jagdish snatched sickle from appellant No. 2, babulal. It is, further stated in the First Information Report that Badrilal and his father deceased Heera Lal acted in their defence because of which appellants babulal and Rugnath also sustained injuries. He too was assaulted by lathi by appellants No. 3 and 1 kailash and Rugnath. (PW 2) Jagdish snatched sickle from appellant No. 2, babulal. It is, further stated in the First Information Report that Badrilal and his father deceased Heera Lal acted in their defence because of which appellants babulal and Rugnath also sustained injuries. The incident was witnessed by onkar and Ibraim residents of the same village and other villagers were also assembled on the scene of occurrence after hearing cries. Deceased Heera Lal was taken to the police station in a tractor where Badrilal (PW 1) lodged report ex. P/1. Injured persons were sent for medical examination. The deceased was attended by Dr. (PW 9) A. R. Hawadiya, who found him dead and performed autopsy. This doctor has also examined Badrilal (PW 1), Jagdish (PW 2) and anarbai (PW 3) as well as appellants Rugnath and Babulal. After necessary investigation, appellants were charge sheeted for the offence as mentioned hereinabove. ( 3. ) THE appellants have denied the charges. Defence of appellant rugnath is one of false implication because of enmity whereas appellants ramesh and Kailash pleaded alibi and according to appellant No. 2 Babu @ babulal, he was suffering from fever and was going to Sarangpur for treatment. He was beaten on the way by deceased Heera Lal, Badrilal (PW 1) and (PW 2)Jagdish by lathi and Darata. Appellants were tried by the Trial Court and found them guilty for the offence as mentioned hereinabove. ( 4. ) LEARNED Counsel for the appellants has submitted that even if, complete prosecution case is accepted, all the appellants could not be held vicariously responsible with the aid of Section 34 IPC for committing murder of deceased Heera Lal because the prosecution evidence shows that they reached the spot on different-different point of time and had not played such an important role, on the basis of which, it could be said that they developed common intention on the spot during the course of incident. Learned Counsel for the appellants has submitted that the prosecution has failed to explaln injuries found on the person of Rugnath and Babulal, therefore, appellants are entitled for getting benefit of exception of their acting in the right of private defence of their person. Learned Counsel for the appellants has submitted that the prosecution has failed to explaln injuries found on the person of Rugnath and Babulal, therefore, appellants are entitled for getting benefit of exception of their acting in the right of private defence of their person. Lastly learned Counsel for the appellants has submitted that only appellant Babu @ Babulal could be held responsible for causing simple injury to (PW 1) Badrilal and culpable homicide not amounting to murder of deceased Heera Lal punishable under Section 304, Part II IPC. ( 5. ) AS against this, learned Dy. Advocate General, Mr. Girish Deasi, appearing for the State has submitted that the appellants cannot get benefit of right of private defence of their person because they have not come with specific plea of acting in their defence. Appellant Rug Nath has not stated even a single word in his accused statement about sustaining injury in the same incident, whereas defence of appellants Ramesh and Kailash was that they were" present some where else than the scene of occurrence and the defence of appellant babu @ Babulal is that he was assaulted by deceased, and Badrilal (PW 1), (PW 2) Jagdish. When Badrilal (PW 1) was dealing blow by Darata on his person, the same did not hit him and fell on the person of his father Heera Lal. Learned counsel has also submitted that on over all assessment of the prosecution and the defence evidence on record, the case of acting of his right of private defence in favour of the appellants is not made out. ( 6. ) HAVING heard learned-Counsel for the parties and after perusing the entire record of the case, we are of the opinion that in the facts and circumstances of the case, though prosecution eye witnesses (PW 1) Badrilal and (PW 2) Jagdish, have not explained injuries sustained by appellants, the appellants cannot get benefit of their right of acting in private defence merely on this ground. Appellants are required to prove by preponderance of probabilities, existence of circumstances bringing the case within any of the exceptions in the Indian Penal Code or within any special exceptions or Proviso contained in any other part of the same Code or in any law describing offence as per Provisions under Section 105 of the Evidence Act. Appellants are required to prove by preponderance of probabilities, existence of circumstances bringing the case within any of the exceptions in the Indian Penal Code or within any special exceptions or Proviso contained in any other part of the same Code or in any law describing offence as per Provisions under Section 105 of the Evidence Act. In the instant case, no such suggestion was given to the prosecution witnesses that the appellants caused injuries to the deceased and the witnesses in their defence, in accused statements also appellants Ramesh and Kailash taken plea of alibi and injured appellant Rugnath has even not stated about sustaining the injuries by him in the same incident. Appellant Babu Lal has given one sided story and the other appellants have also not explained the death of the deceased and injuries sustained by Badrilal (PW 1) and Jagdish (PW 2 ). In the Court, both the parties have not come with clean hands and they have also not narrated the very genesis of the incident though in the First Information Report, Ex. P/l lodged by badrilal (PW 1) he has mentioned specifically that they defended themselves and because of which appellants Babulal and Rugnath sustained injuries. Trial court has considered this aspect in paragraph 59 of its judgment but since the first Information Report is not substantive piece of evidence, the contents mentioned therein, can not be used as evidence and in Court the witnesses have given evasive reply about sustaining injuries by appellants Babu @ Babulal and rug Nath. The defence has examined four witnesses. The two witnesses (D W1)and (DW 2) have deposed about presence of appellants Kailash and Ramesh somewhere else in the same village than the place of incident. Such kind of oral evidence to establish the plea of alibi could be available to everybody, if both the defence witnesses have stated truth why they had not made complalnt immediately when the appellants were apprehended by the police, to the police or superior officials of police. DW 3 Babulal S/o Bhagirath has given one sided different story that deceased Heera Lal, witness Jagdish and Badrilal assaulted babulal by lathi and Darata. DW 3 Babulal S/o Bhagirath has given one sided different story that deceased Heera Lal, witness Jagdish and Badrilal assaulted babulal by lathi and Darata. This witness has not stated any thing about the death of Heera Lal and sustained injury by Jagdish and Badrilal in Cross-examination, he has admitted that after the incident police party reached the village but he did not disclose anything about the incident to the police. He has explained the situation saying that since he was not interrogated by the police, he did not disclose about the incident. This explanation is not acceptable because how the police would come to know that a particular person was acquainted with the incident or would be able to furnish the material evidence about the incident. In cross-examination of the eye witness regarding presence of Babulal no suggestion was given to the witness by the defence that this witness dw3 (Babulal S/o Girdhari was also present on the scene of occurrence and the prosecution has also not stated so, therefore, his version about beating to appellant Babulal by deceased Heera Lal and witness Jagdish and Badrilal appears to be a story built up by the defence lateron. ( 7. ) (PW 1) Badrilal in Paragraph 7 has admitted specifically that his father Heera Lal and appellant Rugnath were real brothers and they were residing peacefully maintaining cordial relations. There was no bitterness or any kind of quarrel between them prior to the date of incident. In cross-examination also the defence has not given any suggestion about previous enmity between the parties and no evidence has been led on this count. Therefore, a big question arose before us to consider and decide as to why both real brothers and their sons entered into quarrel all of a sudden without any rhyme and reason. (PW 1)Badrilal in Paragraph 1 examination-in-chief has deposed that when he reached in front of the house of Surat Singh, appellant Babu @ Babulal also reached over there, caught hold of his neck, thereafter, dashed him and abused him whereas the report lodged by Babu Lal vide Ex. D/5 and its copy Ex. D/5 (C) recorded in daily diary by the police at serial No. 1695 of the same date of incident at 11. 45 a. m. is disclosing the fact that on the date of the incident at 10. D/5 and its copy Ex. D/5 (C) recorded in daily diary by the police at serial No. 1695 of the same date of incident at 11. 45 a. m. is disclosing the fact that on the date of the incident at 10. 00 a. m. he was going to Sarangpur from his village, when he reached in front of the house of girja Master, (P W1) Badrilal was also coming with a bundle of grass on his head from the opposite direction and dashed him. At this point of time, he told him whether he is blind, thereafter, Badrilal (PW 1) threw bundle of grass and grappled with him. The defence has merely exhibited rojnamcha entry and none has deposed in Court the contents of this report, therefore, the same cannot be taken into consideration as substantive piece of evidence, but at the same time, on over all reading of the statements of prosecution witnesses, it emerged that the incident occurred all of a sudden and at that initial stage, (PW 1) Badrilal and appellant Babulal were present, only thereafter one after another, other appellants and witnesses (PW 2) Jagdish, (PW 3) Anarsingh and (PW 4)Rajalbai reached the scene of occurrence. Badrilal (PW 1) had described specific overt act of appellant Babu Lal for causing him a simple injury and thereafter on arrival of co-accused Ramesh who caught hold of deceased Heera lal from his back side and appellant Babulal dealt Darata blow on the waist near stomach. He tried to save his father he was caught hold by appellant Rugnath and thereafter, appellant Kailash also reached over there and caused him injury by lathi. Statements of (PW 1) Badrilal, (PW 2) Jagdish, are contradictory to each other regarding catching hold of the deceased. (PW 1) Badrilal says that appellant Ramesh caught hold of the deceased whereas (PW 2) Jagdish has disposed in paragraph 1 that his father was caught by appellant Rugnath, story of catching hold of the deceased was also falsified by the medical evidence of (PW 9) Dr. A. R. Hawadia, who found one incised injury 12 cm x 4 cm x 10 cm on the left side of the hip. If the deceased was caught from his back side either by ramesh or by Rugnath such severe injury could have not been caused on the left side of the hip of the deceased. A. R. Hawadia, who found one incised injury 12 cm x 4 cm x 10 cm on the left side of the hip. If the deceased was caught from his back side either by ramesh or by Rugnath such severe injury could have not been caused on the left side of the hip of the deceased. This factual aspect shows that witnesses have exaggerated the incident. (PW 2) (Jagdish) also reached on the spot after hearing cries of his brother (PW 1) Badrilal and according to him, when he tried to save his father; in the scuffle he sustained injury by Darata. Its not his case that he was voluntarily caused injury by any of the appellants. ( 8. ) DECEASED Heera Lal was aged about 60 years and (PW 9) Dr. A. R. Hawadia, on external examination of the dead body, found one incised injury on the left buttock and another on the right cheek. He proved his post mortem report Ex. P/10. In his opinion, deceased died because of shock due to excessive bleeding from the wounds. The injury on the hip was also cutting the hip bone and underneath injury No. 2, under the cheek, there was no vital organ found damaged. Though injury No. 2 contributed for causing shock because of loss of blood but individually this injury can be described as simple in nature. Injury No. 1 on the left buttock was on non-vital part of the body. ( 9. ) AS discussed hereinabove, we are of the opinion that no case is made out in favour of the appellants acting in the right of private defence of their person. Therefore, now we have to decide prosecution case on the basis of the statements of eye witnesses (PW 1) Badrilal, (PW 2) Jagdish, (PW 3) Anarsingh and (PW 4) Rajalbai, The names of (PW 3) Anarsingh and (PW 4) Rajalbai are not mentioned in the First Information Report. On minute scanning of the statements of these witnesses, we came to the conclusion that the incident occurred all of a sudden, when (PW 1) Badrilal was coming to the village from the forest having bundle of grass on his head and dashed the appellant, Babulal who was coming from the opposite direction. Both grappled with each other. Thereafter deceased Heera Lal, (PW 2) Jagdish and other appellants also deceased Heera Lal. Both grappled with each other. Thereafter deceased Heera Lal, (PW 2) Jagdish and other appellants also deceased Heera Lal. Under these circumstances, it could not be said that appellants were having pre meeting of mind, pre meditation and pre plan for committing murder of deceased Heera Lal and causing simple injury to (PW 1)Badrilal and other witnesses. All the appellant could not be held vicariously responsible for fatal blow given by appellant Babulal. Appellants would be responsible for their individual act and individual act of appellant No. 2 Babulal was causing simple injury to (PW 1) Badrilal and injury to deceased Heera Lal resulting into his death. Appellant Ramesh has not caused any injury to any body. Appellant Rugnath has also not caused any injury to deceased or witnesses. Appellant Kailash has caused simple injury to Badrilal by lathi. (PW 2) Jagdish sustained injuries during scuffle, therefore, for his injury no body can be held responsible. Thus, appellants Ramesh and Rugnath are entitled for acquittal, therefore, they stand acquitted. ( 10. ) NOW the question before us is to decide whether appellant Babulal would be responsible for committing culpable homicide amounting to murder or culpable homicide not amounting to murder. Admittedly, there was no bad. blood between both the parties. The incident occurred all of a sudden when (P W 1) Badrilal and appellant No. 2 Babulal dashed each other on the road and during the course of their quarrel, family members of both the parties assembled there. In the circumstances, it would be very difficult to say that appellant babulal death Darata blow on the person of the deceased Heera Lal with an intention to commit his murder. He caused only one fatal injury on the left hip of the deceased, therefore, he can be attributed knowledge that his act was likely to cause death or cause such bodily injuries as is likely to case death. His act was of pre mediated; therefore, he would be responsible for committing culpable homicide not amounting to murder punishable under Section 304 Part II IPC. Appellant Babulal is also responsible for causing simple injury to (PW 1)Badrilal. ( 11. ) CONSEQUENTLY, for the foregoing discussions, on factual and legal aspect, this appeal is allowed in part. Conviction and sentence of appellants ramesh and Rugnath on all counts are hereby set aside, their bail bonds and surety bonds stand cancelled. Appellant Babulal is also responsible for causing simple injury to (PW 1)Badrilal. ( 11. ) CONSEQUENTLY, for the foregoing discussions, on factual and legal aspect, this appeal is allowed in part. Conviction and sentence of appellants ramesh and Rugnath on all counts are hereby set aside, their bail bonds and surety bonds stand cancelled. Conviction and sentence of appellant No. 2 babulal under Sections 323/34,324/34 and 302/34 IPC are set aside and instead thereof, he is convicted under Section 304 Part II IPC and sentenced to suffer rigorous Imprisonment for 5 years with fine of Rs. 2000/-, in default of payment of fine, he shall suffer further RI for one year. Conviction and sentence of appellant Kailash under Section 323/34,324/34, and 302/34 IPC are set aside but he is convicted only under Section 323 IPC for causing simple injury by lathi to (PW 1) Badrilal and sentenced to the period already undergone (2 months) with line of Rs. 1000/- in default of payment of fine, to suffer further RI for 12 months. He is on bail, his bail bonds land surety bonds stand discharged. ( 12. ) APPELLANT Babulal is on bail. He be informed through his Counsel to surrender before the Trial Court on 10th of May, 2006 and the Trial Court is directed, upon his surrender, to take him in custody and send him to jail for serving out remainder part of the sentence. If appellant Babulal does not appear on the given date, Trial Court is free to take suitable action against him in accordance with the provisions of law. ( 13. ) OFFICE is directed to send copy of this judgment, along with the record immediately to the Trial Court.