Hon'ble Dr. GOMBER, J.—The appellants named herein above have preferred this appeal against the judgment and order dated 25.9.2001 passed in Sessions Case No.111/2002 (05/2002) by learned Addl. Sessions Judge (Fast Track), Behror, Distt. Alwar whereby they were convicted and sentenced as under: (i) For the offence punishable under Section 302 read with Section 34 IPC with rigorous imprisonment for life and a fine of Rs.2000/- in default whereof to further undergo six months' simple imprisonment. (ii) For the offence punishable under Section 325 read with Section 34 IPC with rigorous imprisonment for two year and a fine of Rs.500/- in default whereof to further undergo two month's simple imprisonment. (iii) For the offence punishable under Section 324 read with Section 34 IPC with rigorous imprisonment for one year and a fine of Rs.200/- in default whereof to further undergo one month's simple imprisonment. (iv) For the offence punishable under Section 323 IPC with rigorous imprisonment for six months' and a fine of Rs.200/- in default whereof to further undergo one month's simple imprisonment. (v) For the offence punishable under Section 447 IPC with rigorous imprisonment for one month. 2. Briefly stated facts of the case as culled out by the prosecution are that on 14.9.2001, complainant Mangey Ram submitted a written report at P.S. Behror, District Alwar alleging therein that at about 1.00 p.m. when he was sitting in his house with his father and brothers namely Radhey Shyam, Badri Prasad & Ram Pratap, the accused persons laced with weapons came and started inflicting injuries upon them. On account of injuries sustained by Onkar and Rampratap, they became unconscious and on their making hue and cry, neighbours came for rescue whereafter accused persons ran away. 3. On the basis of this report, case was registered and FIR No. 416/2001 was chalked for the offence under Section 451, 323 & 341 IPC. During he course of investigation, injured Onkar died where-after the offence under Section 302 IPC was added. Since the accused persons were absconding, the Investigating Officer, after completion of usual investigation, filed charge-sheet under Section 299 of 'the Code' against them for offences under Sections 302, 307, 326, 323, 324, 325, 341, 447 and 34 IPC. 4. After their appearance, charge arguments were heard and charges under Sections 302, 307, 325, 324, 323, 447 read with 34 IPC were read over by learned trial Court. 4. After their appearance, charge arguments were heard and charges under Sections 302, 307, 325, 324, 323, 447 read with 34 IPC were read over by learned trial Court. Charges were denied by them and trial was claimed. 5. In order to substantiate its case, the prosecution examined as many as 17 witnesses and exhibited 35 documents. After completion of prosecution evidence, accused persons were examined under Section 313 Cr.P.C. wherein they denied the allegation as also their complicity in the crime and asserted false implication due to previous enmity. They further explained that the complainant party was aggressor and that they had lodged the report with regard to the incident which took place at 12.00 p.m. In order to save themselves the complainant party lodged this report in defence. They, however, did not examine any witness but exhibited 13 documents including their injury reports showing injuries allegedly suffered by them in the incident which occurred at 12.00 p.m. in their field. 6. Learned Trial Court, after hearing the parties and perusing the record, convicted and sentenced the appellants in the manner mentioned herein above. It is this judgment which has been assailed by the learned counsel for the appellants on various grounds. 7. First argument advanced by learned counsel for the appellants was that the true genesis of occurrence has been suppressed because no such incident has taken place in the 'baithak' of house of Mangey Ram. Instead it has occurred in he field of accused party and that the complainant party was aggressor. The dispute according to him arose on account of a trivial issue of return of Rs.5/- to one of the relatives of complainant party whose services as tractor driver were used by the accused for which they had lodged the report. 8. Second argument advanced by learned counsel was that all the witnesses examined by the prosecution are relatives, hence, interested and that none of the independent witness has been examined whereas alleged place of incident is in dense habitation. 9. Third argument advanced by the learned counsel for the appellants was that as per injury report, one injury was found on the head of deceased Onkarlal which was also not opined to be sufficient to cause death in the ordinary course of nature. 9. Third argument advanced by the learned counsel for the appellants was that as per injury report, one injury was found on the head of deceased Onkarlal which was also not opined to be sufficient to cause death in the ordinary course of nature. According to him, the deceased was 90 years old and died after 48 hours on account of negligence in his operation and that the learned trial Court has not looked into this aspect while recording the finding of guilt against the appellants. 10. Fourth & last argument advanced by learned counsel for the appellants was that the learned Trial Court has committed a gross error of fact and law by not appreciating the fact that the cross case against he members of complainant party had been lodged with regard to the incident which occurred in the 'Guada' of appellant Birbal and the appellants Dataram and Krishn Kumar and Birbal suffered several injuries which have not been explained by the prosecution. Out of the injuries suffered by Birbal, two were on his head whereas Dataram suffered twelve and Krishn Kumar six injuries. 11. According to him, as mentioned in report Ex.D/1, the incident actually occurred at 12.00 p.m. in the afternoon and not at 1.00 p.m. as claimed by the complainant party. Thus, according to him, the incident did not occur in the manner it is claimed to have occurred. Further that the plea of alibi taken by appellant Sheesh Ram that he was in wrestling competition had also not been appreciated by the trial Court while passing the order of conviction. the Tractor driver with whom the issue had arisen, has also been withheld by the prosecution and his examination only would have unfolded the true story. 12. Further that contradictions in the statements of witnesses recorded by the Police have been considerably improved before the Court. 13. Per contra, learned counsel appearing for the State, supporting the judgment of the learned trial Court, submitted that the impugned judgment is completely based on cardinal principles of criminal jurisprudence and the learned trial Court has not committed any error of fact or law. 14. We have considered the rival contentions of both the parties, and perused the record, as also the impugned judgment. 15. 14. We have considered the rival contentions of both the parties, and perused the record, as also the impugned judgment. 15. The complainant, as per Ex.P/14, came with the story that when he, along with his father Onkar, brothers Radheyshyam, Badri Prasad and Ram Pratap was sitting in the 'baithak' of their house, the accused namely Birbal, Data Ram @ Hetram, Krishn Kumar, and Sheeshram S/o Birbal laced with lathies and Sheeshram laced with Kasia came there so as to kill them. As soon as they reached their 'baithak', they started inflicting injuries, whereby his father Onkar and brother Rampratap became unconscious, and after hearing hue and cry, people came there and whereupon they ran away. The complainant Mangey Ram did not mention name of eye-witnesses who came for rescue. 16. As per prosecution story, deceased Onkarlal was severely injured and was taken to the Referal Hospital, Behror where Medical Officer Sh. Rajeev Gupta (PW-2) examined him at 3.30 p.m. and found following three injuries as shown in Ex.P/1: (i) Lacerated wound 2" x ½" bone deep over left parieto frontal region. (ii) Contusion whole of the left eyeball (iii) Contusion whole of the right eyeball. 17. After X-Ray, injury No.1 was found as grievous and caused by blunt weapon. Injured Onkar was referred to SMS Hospital, Jaipur and while admitted in Neurosurgery Ward-I, Onkarlal died on 16.9.2001 at 2.00 p.m. 18. On that very day, Sh. Rajeev Gupta (PW-2), Medical Officer, Behror also examined Mangey Ram at 3.40 p.m. and found following three injuries on his body as mentioned in Ex.P/2 which are as under : (i) Contusion 3" x 2" over left forearm lower 1/3rd over dorsal surface. (ii) Contusion 1" x ½" over right forearm lower 1/3rd over dorsomedial surface. (iii) Contusion 2"x2" over left shoulder region. 19. After X-Ray, injuries No.2 and 3 were opined as simple caused by blunt weapon. 20. Similarly, injured Badri was examined at 3.45 p.m. and on his body, five injuries as recorded in Ex.P/3 were found. Out of which injury Nos. 4 & 5 were simple and injury No.1 & 2 were caused by blunt weapon. After X-Ray, injury No.1 & 2 were found as simple whereas injury No.3 was found grievous caused by blunt weapon. 21. On that very day also, at 3.50 p.m., he examined Radheyshyam and found two injuries on his body. Out of which injury Nos. 4 & 5 were simple and injury No.1 & 2 were caused by blunt weapon. After X-Ray, injury No.1 & 2 were found as simple whereas injury No.3 was found grievous caused by blunt weapon. 21. On that very day also, at 3.50 p.m., he examined Radheyshyam and found two injuries on his body. As per report Ex.P/4 both the injuries were caused by blunt weapon and after X-Ray, injury No.2 was also found to be simple as mentioned in Ex.P/8. 22. At 3.30 p.m., he also examined Rampratap, and found seven injuries on his body. X-Ray was advised for injury Nos. 1, 2 & 5 and remaining injuries were simple, and injury No.2 & 3 were caused by sharp weapon as mentioned in Ex.P/5. 23. After X-Ray, injury Nos. 1 & 2 were found to be grievous as mentioned in Ex.P/9 and injury No.5 was found to be simple. 24. PW-2 Dr. Rajeev Gupta, clearly deposed during his cross-examination that he examined he deceased in an unconscious condition and according to him, injury No.1 could be caused by a stone or by falling on a solid surface. He did not see the X-Ray report with regard to injury Nos. 2 & 3, therefore, he could not opine. But in his cross-examination he stated that all he injuries shown in Ex.P-2 could be sustained by falling on a hard surface. 25. In the same manner, all the injuries of Ex.P-3 pertaining to Badri and Ex.P-4 pertaining to Radheyshyam could be caused by falling on hard surface. 26. Injury nos. 4, 5, 6 & 7 shown in Ex.P-5 could be sustained by falling on hard surface. But as regards injury No.3 pertaining to Rampratap, it could not be caused by falling on hard surface and injury No.1 could be caused by stone. For injury nos. 2 and 3, he could not say as to what weapon was used. 27. PW-17 Dr. O.P. Saini conducted autopsy of dead body, prepared report Ex.P-28, and found following external injuries: (i) Stiched wound 5 cm with abroaded margin present over left frontal region in suggital plane with 5 stitches and both eye black eye. (ii) Stitch would — shaped 24 cm with 28 stitches present over mid frontal region to left parietal to temporal region with 1 cm stitched wound posterior to it in temporal region (operation wound). (ii) Stitch would — shaped 24 cm with 28 stitches present over mid frontal region to left parietal to temporal region with 1 cm stitched wound posterior to it in temporal region (operation wound). (iii) Bruise 5x3 cm on right parietal eminence region bluish colour. 28. In the opinion of PW-17, Dr. O.P. Saini, cause of death was coma due to Head Injury. The injury was ante mortem and sufficient to cause death in the ordinary course of nature. 29. In his cross-examination, PW-17 Dr. O.P. Saini, has deposed that operation was performed by surgeon and not by him. Injury No.2 according to him was on account of operation of head. Injury nos. 2 and 3 were about one day old and were on account of operation. He also admitted that bone, which was missing from the head had been taken out at the time of operation. The stitches on duramater were on account of operation. He admitted that person can go in coma when part of brain/head is removed during operation. He has also stated that in case of non-success of brain operation, person can lose his voice or even can die. 30. The above were injuries sustained by complainant party whereas the accused persons were also medically examined by PW-2 Dr. Rajeev Gupta who conducted their medical examination on the same day. In this regard, injury report Ex.D/2 of Birbal was prepared at 5.50 p.m. wherein he is said to have sustained seven injuries; out of which five were lacerated wounds, one was contusion and one was abrasion. First four injuries have been found on left and right parietal region. One fracture of proximal phalynix of left ring finger was found as per X-Ray report Ex.D/5. 31. In the same manner, Data Ram S/o Birbal was also medically exami-ned on the same day. Ex.D/3 Injury report was prepared and 12 injuries were found on his person, out of which five were contusions, six were bruises and one was abrasion. Laceration and contusions were found on parietal region. 32. Similarly, accused Krishn Kumar S/o Birbal was also examined on the same day in the Government Hospital on police requisition. Report Ex.D/4 was prepared which shows that he sustained six injuries in all. Out of which two were lacerated wounds, three were contusions and one was bruise. 33. Laceration and contusions were found on parietal region. 32. Similarly, accused Krishn Kumar S/o Birbal was also examined on the same day in the Government Hospital on police requisition. Report Ex.D/4 was prepared which shows that he sustained six injuries in all. Out of which two were lacerated wounds, three were contusions and one was bruise. 33. Thus contention of learned counsel for the appellants was that the accused persons sustained substantial injuries, seven on Birbal, Twelve on Data Ram and six on Krishn Kumar, along with fracture of Birbal. 34. The defence case is that the incident occurred in the same village at 12.00 in the noon and according to that report, issue arose on account of payment of return of Rs.5/- to the tractor driver who happened to be a relative of complainant party. 35. Prosecution has relied on the eye-witnesses namely PW-6 Mangey Ram, PW-7 Radhey Shyam and PW-8 Badri who all have admitted about the occurrence in Birbal's guwada at 12.00 noon and registration of cross case against them. 36. PW-7 Radheyshyam admitted that cross case was registered against them at the instance of accused persons. He also admitted that Birbal's Guwada was 250 meters away from his house. 37. PW-8 Badri also supported the defence version when he admitted that there was some dispute with regard to payment. In his cross-examination, he deposed as under: ;g lgh gS fd cktjk fudyus ds 5 :i; ds ekeys dks ysdj VªsDVj okys ds lkFk fookn gqvk FkkA ;g lgh gSa fd tc geus chp cpko djk;k rks ;s gekjs lkFk xkyh xykSp djus yxs rks ge vius ?kj vk x,A 38. In this regard, statements of PW-5 Santlal who was posted as ASI to whom written report Ex.P/13 was given and Ex.P/14 FIR was chalked, are important. This witness also prepared the site plan Ex.P/15. During his cross-examination, he admitted that accused party had also registered FIR Ex.D/1 with regard to the incident allegedly occurred at 12.00 noon i.e. of prior in time than he one registered by complainant side and on his requisition, accused persons Birbal, Data Ram and Krishn Kumar were medically examined. Their medical reports Ex.D/2 to Ex.D/4 have been placed on record along with X-Ray report of Birbal Ex.D/1. Their medical reports Ex.D/2 to Ex.D/4 have been placed on record along with X-Ray report of Birbal Ex.D/1. He has categorically stated that during his investigation, it was revealed that accused Birbal had got some work done from complainant's relative in his 'Guwada' and there was a dispute of return of Rs.5/-. 39. In his cross-examination, he has stated that he had also visited site of cross case. esjh rrh'k esa vk;k Fkk dh ewy- chjcy us vius xqokMs ifjoknh i{k ds fj'rsnkjksa ds VªsDVj Fks ek= 5@& dk fookn FkkA Øksl dsl esa vk;k dh ekaxhyky oxSjg us igys chjcy ds xqokM+s esa tkdj >xM+k fd;Ka 40. Thus the statements of PW-5 Santlal corroborate the story of defence that they had lodged the FIR Ex.D/1 with regard to the incident which occurred in Birbal's guwada at 12.00 afternoon i.e. One hour before the alleged incident. Ex.D/1 FIR No.417/2001 lodged by Birbal was to the effect that at 12.00 noon on 14.9.2001 he had cut the crop of 'Bajra' by thresher which was from Sunderpura. He paid Rs.100/- to the thresher-man against the price of Rs.65/- which was agreed to be paid for cutting crop. Instead of returning Rs.35/-, the thresher man returned him only Rs.30/- and on Birbal's asking for return of Rs.5/- more which he refused to give and as the thresher-man was then relative, the complainant party's Mahendra, Pappu, Badri, Radheyshyam, Latiya, Dholiya, Bijali, Basanti and Misali, laced with lathies and axe came to his 'guwadi' and inflicted injuries on them. 41. Instead of returning Rs.35/-, the thresher man returned him only Rs.30/- and on Birbal's asking for return of Rs.5/- more which he refused to give and as the thresher-man was then relative, the complainant party's Mahendra, Pappu, Badri, Radheyshyam, Latiya, Dholiya, Bijali, Basanti and Misali, laced with lathies and axe came to his 'guwadi' and inflicted injuries on them. 41. In order to appreciate the version of defence, we have gone through the site plan Ex.P/15 prepared in FIR No.416/2001 in the present case as also the site plan prepared in the case registered at the instance of accused persons, and we find that in Ex.P/15, place of occurrence is shown as 'baithak' "X" and according to the eye-witness PW-6 Mangeyram "ekjihV ls vksedkj o jkeizrki ds [kwu vk x, FksA ysfdu og [kwu pkjikbZ ugha fxjk cfYd Q'kZ ij tehu ij fxjs FksA [kwu cSBd esa vkxs fxjs FksA cSBd ds cjus esa tc fudy jgs Fks rc gh [kwu fxjs FksA ekjihV cSBd ds vUnj 'kq: gksdj tc ge Hkkxus ds fudys rks cgkj fudydj ekjihV gqbZA tks fd 2-4-5 QhV ds nk;js esa gh gks xbZ vksadkj ckgj fxj x;k FkkA ogh ij [kwu fxjk FkkA txnh'k] y{eh pUnz vk;s Fks rks esjk firkth tehu ij fxjk gqvk FkkA" 42. Likewise, according to PW-8 Badri "ckck vksadkj ds lkFk ekjihV cSBd esa gh gqbZ Fkh tks [kkaV ij cSBs ds ekjh FkhA ftlds [kwu vk jgs FksA og ogk ij feV~Vh ij fxj x;k Fkk fQj eSa cSBd ds cgj vk x;k FkkA" 43. In the same manner, according to PW-7 Radhey Shyam "lcls igys esjs ls ekjihV gqbZ esa csgks'k ugha gqvk Fkk fxjk Hkh ugha FkkA esjs [kwu vk x;k Fkk tks dh diM+ksa esa Hkh yx x;kA esjs firkth ds fxjs gq, ds nks pksVs ekjh xbZ tks dh —".k 'kh'kjke us ekjh FkhA" 44. But strangely PW-5 Santlal, Investigating Officer has not even found a drop of blood at the spot. Ex.P/15 shows that there were no blood stains on the floor which in the case of so many injuries allegedly sustained by four members of complainant party were expected to be there. 45. But strangely PW-5 Santlal, Investigating Officer has not even found a drop of blood at the spot. Ex.P/15 shows that there were no blood stains on the floor which in the case of so many injuries allegedly sustained by four members of complainant party were expected to be there. 45. On the other hand, at place 'Y' in Ex.P/15, guwada of Birbal has been shown and defence case is that in this guwada when 'Bajra' was taken out by thresher-man and labour was being paid and on the issue of return of Rs.5/-, some altercation took place between thresher-man and Birbal, and since thresher-man was complainant party's relative, they all came to accused Birbal's guwada laced with weapons and assaulted them. 46. Arguments of learned counsel for the appellants that the place of incident has been changed, can be appreciated by seeing both the site plans Ex.P/15 and Ex.D/11. In both the site plans, Birbal's guwada has been shown. In the case lodged at the instance of accused persons, the place of occurrence is "G" which has been shown in Ex.P/15 where the place of occurrence is shown as "X" but as discussed herein above, no blood has been found at the place of occurrence. Moreover, the FIR is lodged at 3.30 p.m. by the complainant party whereas the injured persons are claimed to have been medically examined at 3.30 p.m., 3.40 p.m., 3.45 p.m., 3.50 p.m., and 3.30 p.m. and in all of them, there is mention of examination on police request. So far as Onkar is concerned, doctor has admitted that he has not put any signature nor even time of his examination. The post mortem Ex.P/28 has been proved by Dr. Rajeev Gupta (PW-2) but he has admitted that injury No.1 on his head could be caused by fall on a solid surface, other two injuries, according to him, were the result of operation. Incident is alleged to have occurred in the afternoon of 14.9.2001; whereas he died on 16.9.2001 after the operation is SMS Hospital, Jaipur. 47. The learned Trial Court has also convicted the accused appellants for offence under Sec. 307 read with 34 IPC with regard to injuries caused to Ram Pratap. But doctor has not opined any injury to be dangerous to life. All injuries are simple except fracture on the index finger which is injury No.2. 48. 47. The learned Trial Court has also convicted the accused appellants for offence under Sec. 307 read with 34 IPC with regard to injuries caused to Ram Pratap. But doctor has not opined any injury to be dangerous to life. All injuries are simple except fracture on the index finger which is injury No.2. 48. In Ex.P/15 site-plan of this case at S.No.16, Investigating Officer has written as under: ^^;g xqokMk chjcy xqtZj ds ikl gksdj vkrh gS tks vke dPph lM+d gSA** 49. On the basis of discussion made herein above, it can well be concluded that it is the complainant party who was the aggressor as it has gone to Birbal's guwada at 12.00 p.m. where he as getting his work done from thresher-man Sukhram and on the issue of return of Rs.5/- by him, some altercation took place between Sukhram and Birbal whereupon the complainant party laced with weapons came and inflicted injuries to the accused persons on whose persons considerable number of injuries as discussed herein before were found. 50. So far as injuries on the person of complainant party are concerned, doctor has categorically stated that the injuries could be sustained by fall on solid surface. Moreover it is established in view of discussion made herein before that the complainant party who were more than five went to the Birbal's guada and the injuries on their person could also be sustained while exercising right of private defence by accused persons. So far as Onkar is concerned, he has died after 48 hours after the operation and it has come on record that he was about 90 years old and doctor clearly stated that in case of brain operation, person may go in coma which may lead to the death. The prosecution has not examined any witness to show that there was no negligence in the brain surgery. Thus the appellants have successfully probalbized the case of prosecution and it is the cardinal principle of criminal jurisprudence that the prosecution has to prove its case against the accused beyond reasonable doubt and the accused should be given benefit of doubt. 51. Thus the appellants have successfully probalbized the case of prosecution and it is the cardinal principle of criminal jurisprudence that the prosecution has to prove its case against the accused beyond reasonable doubt and the accused should be given benefit of doubt. 51. After having scanned the entire evidence, we find that the learned trial Court has not appreciated the circumstances brought on record by the defence side which include their lodging of FIR with regard to incident alleged to have taken place at 12.00 p.m. on the same day in the guwada of Birbal. 52. Since the appellants, in their statements recorded under Section 313 Cr.P.C., had taken the plea of preponderance of possibility and even if they failed to substantiate their plea, they should have been given the benefit of doubt. For all the aforesaid reasons, we find that conviction of appellants cannot be sustained. 53. Once it is established that the complainant party was aggressor, accused persons were well within rights to act in exercise of right of private defence of person and property. 54. The right of self-defence is a very valunerable right, serving a social purpose and should not be construed narrowly. (See Vidhya Singh vs. State of M.P. Manu/SC/0212/1971 Cr.L.J. 1296). In adjudging the question as to whether more force, than was necessary, was used in the prevailing circumstances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objectivity which would be so natural in a Court room or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat of himself cannot be expected to mudulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances. 55. In the illuminating words of Russel (Russel on Crime, 11th Edition Volume I at page 49): "..... a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. 55. In the illuminating words of Russel (Russel on Crime, 11th Edition Volume I at page 49): "..... a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended and if in the conflict between them he happens to kill his attacker, such killing is justifiable." 56. During the course of hearing of the appeal, learned Public Prosecutor informed that the appellant No.4 Birbal S/o Harlal had expired during the pendency of this appeal. Therefore, appeal, in so far as, accused-appellant No.4 Birbal S/o Harlal is concerned, stands abated. 57. Consequently, appeal is allowed. Accused-appellants Data Ram S/o Birbal, Sheesh Ram S/o Birbal and Krishn Kumar S/o Birbal are acquitted of all the charges leveled against them. They were on bail during the pendency of this appeal, therefore, they need not surrender. 58. However, their bail bonds in view of provisions of Section 437A of the Code of Criminal Procedure, shall remain in force for a period of six months from today.