JUDGMENT Hon’ble Om Prakash-VII, J.—This criminal appeal has been preferred by the appellants Chhangur Bhar, Baijnath Bhar, Dukharan, Ghoora, Ghurpatari, Swaminath and Kailash against the judgment and order dated 18.9.1982 passed by IIIrd Additional Sessions Judge, Ballia in Sessions Trial No. 18 of 1981 pertaining to crime No. 141-A of 1979, Police Station Haldharpur, District Ballia whereby accused-appellant Chhangur has been convicted under Section 302 of the Indian Penal Code (in short “the IPC”) and sentenced to life imprisonment. He has also been convicted under Section 147 IPC and sentenced to six months’ rigorous imprisonment and under Section 323 read with Section 149 IPC and sentenced to six months’ rigorous imprisonment. Accused-appellant Baij Nath has been convicted under Section 308 IPC and sentenced to two years’ rigorous imprisonment. He has also been convicted under Section 147 IPC and sentenced to six months’ rigorous imprisonment and under Section 323 read with Section 149 IPC and sentenced to six months’ rigorous imprisonment. Accused-appellants Dukharan, Ghoora, Ghurpatari, Swami Nath and Kailash have been convicted under Section 325 read with 149 IPC and sentenced to two years’ rigorous imprisonment. They have also been convicted under Section 147 IPC and sentenced to six months’ rigorous imprisonment and under Section 323 read with Section 149 IPC and sentenced to six months’ rigorous imprisonment. It was further directed that all the implanted sentences shall run concurrently. 2. During pendency of the appeal, appellants Baij Nath, Dukharan, Ghurpatari, Swami Nath and Kailash are reported to have died. Hence the appeal abates so far as they are concerned. We are required to consider this appeal only with regard to the appellants Chhangur and Ghoora. 3. The prosecution story, in a nutshell, as it emerges from the written report (Ex.Ka-1) is that the informant, Ram Cheej Singh was the resident of village Ratohi (Nawalpur), P.S. Haldharpur, District Ballia. On 29.10.1979, the informant’s ‘pattidar’ Ram Sarikh Singh had been irrigating his field since 4:00 a.m. using the water of the eastern drain of the Government Tube-well. At about 7:00 a.m., accused Chhangur, Baijnath, Ghoora, Dukharan, Ghurpatari, Swaminath son of Dewoo and Kailash, having armed themselves with lathi, danda and spade, came there and forcibly broke the ‘pucca’ drain and diverted the water of the said drain to the field of accused Chhangur. On the protest of Ram Sarikh Singh, the accused persons started abusing him and creating a ruckus. On the protest of Ram Sarikh Singh, the accused persons started abusing him and creating a ruckus. Hearing the uproar, the informant Ram Cheej Singh, his father Gaya Singh, Shiva Nand and Ram Surat Singh rushed on the spot to intervene, thereupon the accused persons began to beat the informant and his men on the exhortation of accused Baij Nath. Accused Baij Nath struck a lathi blow on the head of Gaya Singh, whereupon he fell down on the ground. Thereafter, the accused Chhangur struck a blow on the head of Gaya Singh with the back-head (Pasha) of the Spade by which he fell down and was profusely bleeding from his head. On hearing the noise from the spot, Ganga, Ram Roop, Swami Nath Singh (P.W.3) son of Basudev Singh and many other villagers arrived there and intervened. The informant Ram Cheej Singh, Shiva Nand and Gaya Singh received injuries during the incident. Gaya Singh became unconscious after receiving the head injury from the reverse side of the Spade. 4. After the incident, the informant Ram Cheej Singh (P.W.1) prepared the written report (Ex.Ka-1) and carried Gaya Singh on a cot to the Police Station Haldharpur to lodge the First Information Report on the same day. Police registered the First Information Report vide chick report (Ex.Ka-2) on the basis of written report (Ex.Ka-1) at 8:40 a.m. and entries in the General Diary was also made. Carbon copy of the entries to the General Diary have been proved as Ex.Ka-3. Initially, the case was registered against the accused persons under Sections 147, 323, 308 IPC. Police concerned also prepared ‘majroobi chhithies’ (letters) regarding informant Ram Cheej Singh, Shiva Nand and deceased Gaya Singh for medical examination, which were marked as Ex.Ka-5, Ka-6 and Ka-7. Thereafter the aforementioned injured were senHt to the Government Hospital, Ratanpura through the constables of the Police Station concerned for medical treatment. 5. Dr. B.N. Rai, the Medical Officer of the concerned Hospital, medically examined Ram Cheej Singh and Shiva Nand and prepared injury reports Ex.Ka-9 and Ka-10 respectively. Thereafter the aforementioned injured were senHt to the Government Hospital, Ratanpura through the constables of the Police Station concerned for medical treatment. 5. Dr. B.N. Rai, the Medical Officer of the concerned Hospital, medically examined Ram Cheej Singh and Shiva Nand and prepared injury reports Ex.Ka-9 and Ka-10 respectively. Since Gaya Singh died on the way to the hospital, the information was sent to the Police Station concerned regarding the death of the deceased Gaya Singh, which was entered on the same day in the General Diary of the Police Station at 11:15 p.m. as Rapat No. 13 and the case was converted into the offence under Sections 147, 323, 304 IPC. 6. Concerned police also reached at Primary Health Centre, Ratanpura where the dead body of the deceased was kept. Inquest report (Ex.Ka-13) alongwith the police paper Form No. 33 (Ex.Ka-15), letters to the Medical Officer (Ex.Ka-16 & Ka-17), Form No. 13 (Ex.Ka-18), photo lash (Ex.Ka-19) were also prepared and the dead body of the deceased in sealed condition was sent for post-mortem on the same day through Constable No. 196 Shiv Singh and Constable No. 647 Musafir Yadav of Police Station, Haldharpur. 7. Autopsy on the dead body of the deceased Gaya Singh was performed on 30.10.1979 at 10:00 a.m. at the mortuary concerned. Deceased was average built. Rigor mortis was absent in upper extremities and partially present in lower extremities. Eyes were closed and mouth was found half open. Doctor conducting the post-mortem has also found the following ante-mortem injuries on the dead body of the deceased Gaya Singh : 1. Lacerated wound 8 cm. x 2 ½ cm. x bone deep on the head anterior part to the left placed anterior-posteriorly. 2. Contusion 4 cm. x 3 cm. on left side face upper part left maxillary region. 8. Doctor conducting the post-mortem also found that parietal and frontal bone had got fractured below the injury No. 1. The membranes of the brain and the brain were also fractured below the injury No. 1 and blood clotting was found present. Post-mortem report was prepared as Ex. Ka-11. In the opinion of doctor, cause of death was due to shock and coma as a result of ante-mortem injuries. 9. Investigating Officer interrogated the witnesses and inspected the spot and also prepared the site plan (Ex.Ka-12). Post-mortem report was prepared as Ex. Ka-11. In the opinion of doctor, cause of death was due to shock and coma as a result of ante-mortem injuries. 9. Investigating Officer interrogated the witnesses and inspected the spot and also prepared the site plan (Ex.Ka-12). He also took the blood stained and plain earth from the place of occurrence and kept the same in separate sealed containers preparing the memo. Clothes worn by the deceased were returned to the police concerned by the doctor conducting the post-mortem. 10. After completing the investigation, a charge-sheet (Ex.Ka-8) was submitted against the accused Chhangur Bhar, Baijnath Bhar, Dukharan, Ghoora, Ghurpatari, Swaminath and Kailash for the offence under Sections 147, 323, 308, 304 IPC. Concerned Magistrate took the cognizance in the matter and committed the case to the Court of Sessions for trial. 11. Trial Court, after hearing the parties, framed the charges against accused-appellant, Chhangur, for the offence under Sections 147, 323 read with 149 IPC and 302 IPC. Charges against accused-appellant Baijnath (dead) under Sections 147, 323 read with 149 IPC and 302 IPC were also framed. Accused-appellants Dukharan, Ghurpatari, Swaminath and Kailash (all died during pendency of appeal) and Ghoora were charged for the offence under Sections 147, 323 read with 149 IPC and 302 read with 149 IPC. 12. All the accused persons denied the charges and claimed to be tried. 13. In order to prove its case, the prosecution examined P.W.1 Ram Cheej Singh - the informant, P.W.2 Ram Surat Singh, P.W.3 Swaminath Singh, P.W.4 Shiva Nand, P.W.5 Head Constable Raj Kishore Pandey, P.W.6 Head Constable Shahid Husain, P.W.7 Dr. B.N. Rai, P.W.8 Dr. I.B.D. Dwivedi and P.W.9 Investigating Officer Gauri Shanker. 14. After conclusion of the prosecution evidence, statements of the accused persons under Section 313 Cr.P.C. were recorded by the trial Court. 15. Accused-appellant Chhangur in his statement under Section 313 Cr.P.C. has admitted that there were houses of complainants, tube-well and drain as narrated by the prosecution witnesses and also stated that he was in possession of plots No. 283 and 274. Water of the said tube-well was flowing into the field of Ram Sarikh Singh. Accused-appellant has denied the other prosecution case and has specifically stated that when altercation took place, Ram Cheej Singh, deceased Gaya Singh, Ram Surat Singh and Shiva Nand Singh came at the place of occurrence armed with lathi, danda. Water of the said tube-well was flowing into the field of Ram Sarikh Singh. Accused-appellant has denied the other prosecution case and has specifically stated that when altercation took place, Ram Cheej Singh, deceased Gaya Singh, Ram Surat Singh and Shiva Nand Singh came at the place of occurrence armed with lathi, danda. He also denied that appellants’ side inflicted injuries upon the prosecution side on the exhortation of Baijnath. He also denied causing any spade injury on the head of the deceased Gaya Singh. Swaminath, Ramroop and Ganga were not present on the spot and they did not intervene in the matter. As per this appellant, Gaya Singh did not die due to injuries caused by the appellant on the same day. Witnesses examined on behalf of the prosecution have deposed against this appellant before the Court due to enmity. Police witnesses and doctors have also made false statements at the instigation of the informant. He has specifically stated that a verbal altercation took place over the flow of water for irrigation between the accused Chhangur and Ram Sarikh, then Ram Surat, Shiva Nand, Virendra, Ganga and other persons came there armed with lathi, danda and started beating them. When father, mother and wife of this appellant tried to save him, the above-named persons also caused injuries to them. It was also stated that a cross case of this case is pending in the Court of Session at the stage of defence evidence. 16. All other accused including the appellants have also stated the same facts as has been stated by the accused-appellant Chhangur in his statement under Section 313 Cr.P.C. 17. Appellants in their defence have also examined D.W.1 Bal Govind. 18. Appellant Chhangur, Smt. Gunia wife of Baijnath, Smt. Maliya wife of Chhangur and Baijnath were also medically examined by P.W.7 Dr. B.N. Rai. Their injury reports Ex. Kha-2, Kha-3, Kha-4 were duly proved. Appellants have filed a copy of the chick F.I.R. relating to crime No. 141 of 1979 lodged at police station concerned on behalf of the appellants against the informant’s side, which has been proved as Ex.Kha-1. 19. Before proceeding to record the gist of the statements of the prosecution witnesses, it would be useful to appreciate the case of the appellants since the prosecution witnesses have admitted that cross case was pending at that time, before the Court below. 20. 19. Before proceeding to record the gist of the statements of the prosecution witnesses, it would be useful to appreciate the case of the appellants since the prosecution witnesses have admitted that cross case was pending at that time, before the Court below. 20. Suggestions were made to the prosecution witnesses, on behalf of the appellants, that on the day of incident, it was the turn of accused Chhangur to take water of the concerned Tube-well, but however Ram Sarikh Singh was taking the water of the Tube-well to his field. Accused Chhangur went to Ram Sarikh and requested for some water for irrigation to which Ram Sarikh agreed. After some time, an altercation started between appellant Chhangur and the wife & son of Ram Sarikh, on which Ram Cheej Singh, the informant and his men arrived there and started beating the accused persons, on whom, wife and mother of appellant Chhangur plied lathis in exercise of their right of private defence to save Chhangur. From the perusal of Ex.Kha-1, the copy of the chick F.I.R. of the cross case crime No. 141/1979, it is evident that on 28.10.1979, it was the turn of accused Chhangur to take water of the Government Tube-well. On that day, due to want of electricity supply, the Tube-well was not operative. On 29.10.1979 at about 5:00 a.m., the Tube-well became operative and Ram Sarikh Singh started taking the water to his field. Accused-appellant Chhangur approached Ram Sarikh and requested that he could not get the water on the previous day, therefore, he should be allowed to take water, on which Ram Sarikh Singh agreed, but at about 7:00 a.m., the wife of Ram Sarikh and his son Jai Nath Singh came there and started creating obstruction in the flow of water to the field of accused Chhangur. An altercation took place between them and thereafter the informant Ram Cheej Singh, Ram Surat Singh, Shiva Nand Singh, Virendra Singh, Ram Vriksh Singh and Gaya Singh arrived armed with lathis. On the exhortation of Ram Surat Singh, they started beating accused Chhangur with lathi, danda, fists and kicks. Hearing the noise, the father of Chhangur, accused Baijnath, his mother and wife arrived there to save Chhangur. In exercise of their right of private defence they were compelled to retaliate the assault. On the exhortation of Ram Surat Singh, they started beating accused Chhangur with lathi, danda, fists and kicks. Hearing the noise, the father of Chhangur, accused Baijnath, his mother and wife arrived there to save Chhangur. In exercise of their right of private defence they were compelled to retaliate the assault. During the incident, Swami Nath, Ghurpatari and Bal Govind also reached there and intervened in the matter. 21. P.W.1 Ram Cheej Singh, the informant in his examination in chief, stated that the houses of Ram Surat Singh, Ram Sarikh Singh and this witness are adjoining the village abadi at a distance of about 25 - 30 paces from the Government Tube-well. The place of occurrence is about one furlong from the Tube-well on the kachcha road near ‘Heeraman Baba Ka Sthan’. He stated that the drainage channel for irrigation from the tube-well runs from west to east at the southern boundary of the field of accused Chhangur. The drainage channel turns towards north from the south-eastern corner of the field of accused Changur. The field of Ram Sarikh Singh exists at a distance of about one furlong from the field of accused Chhangur. He further stated that Ram Sarikh Singh, Ram Surat Singh (P.W.2) and Shiva Nand (P.W.4) are cousin brothers and ‘pattidars’ of this witness. Accused Baijnath and Dukharan are real brothers. Accused Chhangur is the son of accused Baijnath. Accused Ghoora is nephew of accused Baijnath. Accused Ghurpatari is relative of accused Baijnath and accused Swami Nath and Kailash belong to the party (camp) of the accused persons. He further stated that plot Nos. 274 and 383 were the property of ‘Sardar Ballabh Bhai Patel School, Haldharpur’. He had purchased 11 decimal land in plot No. 383 while the father of Ram Surat (P.W.2) had purchased 11 decimal land in plot No. 274, two or three years ago from the date of incident. Bhaggan and others had also purchased some land in those plots. However, the accused Chhangur and others did not like the aforesaid sale because both the plots were near the house of accused Chhangur. A case under Section 107 Cr.P.C. was going on before the incident in between this witness and the accused persons. Apart from that, the parties were also litigating in the consolidation Courts. 22. However, the accused Chhangur and others did not like the aforesaid sale because both the plots were near the house of accused Chhangur. A case under Section 107 Cr.P.C. was going on before the incident in between this witness and the accused persons. Apart from that, the parties were also litigating in the consolidation Courts. 22. He further stated that at the time of incident at about 7:00 a.m., Ram Sarikh Singh was irrigating his field with the water from the Government Tube-well. The accused persons Chhangur, Baijnath, Dukharan, Ghoora, Ghurpatari, Swami Nath and Kailash, having armed themselves with lathi, danda and spade, arrived there and broke the drain from the southern side of the field of Chhangur, as a result of which, the water of the Tube-well started flowing into the paddy field of Chhangur. Ram Sarikh Singh (since died), who was irrigating his field with the water from the Tube-well, went there to protest, they were showered filthy abuses from the accused, as a result of which, an altercation took place. Hearing the uproar, P.W.1, his old father Gaya Singh (deceased), Ram Surat Singh (P.W.2), Shiva Nand (P.W.4) arrived at the scene of the occurrence. However, before they could reach the drain which was broken by the accused persons, the accused Baij Nath exhorted and all the accused persons near the ‘Heeraman Baba Ka Sthan’ on the ‘Kuchcha’ attacked the informant and his men. Witnesses Swami Nath (P.W.3), Ram Roop and Ganga reached there and intervened. The accused Baij Nath struck one lathi blow on the head of Gaya Singh as a result of which, he fell down and thereafter accused Chhangur attacked him by a ‘Pasa’ of Spade on his head. Consequently, Gaya Singh became unconscious. The accused also struck lathi blow to him (P.W.1) and Shiva Nand (P.W.4). He further stated that accused Chhangur, Baijnath and wife of Chhangur received some injuries while P.W.1 and his men were exercising their right of private defence. 23. He further stated that after the incident, he lodged the F.I.R. (Ex.Ka-1) with the police. From the police station, all the three injured persons were sent for medical examination to the Government Dispensary at Ratanpura, where his father Gaya Singh succumbed to his injuries. The injuries of P.W.1 and Shiva Nand were examined by the Doctor there. This witness has been cross-examined by the appellants at length. 24. From the police station, all the three injured persons were sent for medical examination to the Government Dispensary at Ratanpura, where his father Gaya Singh succumbed to his injuries. The injuries of P.W.1 and Shiva Nand were examined by the Doctor there. This witness has been cross-examined by the appellants at length. 24. P.W.2., Ram Surat Singh, has supported the statement of P.W.1, Ram Cheej Singh and stated that the accused persons forcibly broke the drain of the Government Tube-well from the southern side of the field of Chhangur and started taking the water from the drain running through the field of accused Chhangur. At that time, Ram Sarikh Singh was irrigating his field. An altercation took place between Ram Sarikh and accused persons. Hearing the noise, this witness alongwith Ram Cheej Singh - informant, Gaya Singh (deceased) and Shiva Nand proceeded to the place of occurrence. The accused Baijnath exhorted and struck one lathi blow on the head of Gaya Singh, when he fell down, the accused Chhangur attacked him by ‘Pasa’ of the Spade on his head thereby causing excessive bleeding injuries on his person, as a result he fell down and became unconscious. While this witness and his men were exercising their right of private defence, certain superficial injuries were also sustained by some persons on the side of accused. Gaya Singh breathed his last on his way to the hospital at Ratanpura. It has been further stated that when they proceeded to the place of occurrence, upon hearing the uproar, the witness, Ram Cheej Singh and Shiva Nand Singh were armed with lathis, while the old Gaya Singh was empty handed. When they were at a distance of about 50 paces from the field of accused Chhangur, the accused persons attacked them. 25. P.W.3 Swami Nath Singh son of Basudev has stated that he reached the place of occurrence upon hearing the shouts and witnessed the incident. He has fully supported the prosecution case and has corroborated the statements of other prosecution witnesses of the alleged incident. This witness also stated that the deceased Gaya Singh was a very old man aged about 80 years. 26. P.W.4 Shiva Nand, who is the injured witness, has also fully corroborated the statements of Ram Cheej Singh (P.W.1), Ram Surat Singh (P.W.2) and Swami Nath (P.W.3). 27. P.W.5. This witness also stated that the deceased Gaya Singh was a very old man aged about 80 years. 26. P.W.4 Shiva Nand, who is the injured witness, has also fully corroborated the statements of Ram Cheej Singh (P.W.1), Ram Surat Singh (P.W.2) and Swami Nath (P.W.3). 27. P.W.5. Raj Kishore Pandey stated that on 29.10.1979, he was posted as Head Constable at Police Station Haldharpur. He proved the chick F.I.R. (Ex.Ka-2) and the General Diary (the carbon copy of which is Ex.Ka-3). On the same day at 11:15 a.m., he received the information about the death of Gaya Singh, the case was converted to Section 304 IPC as is evident from the entry made to that effect in General Diary which is on record and is marked as Ex.Ka-4. He further proved the ‘majroobi chitthies’ (Ex.Ka-5 to Ka-7). 28. P.W.6. Shahid Husain deposed that previously the investigation of this case was being conducted by Gauri Shanker and after his transfer, this witness was entrusted with the investigation of this case. After completing the investigation, he submitted the charge-sheet (Ex.Ka-8) against the accused persons under Sections 147, 323, 308, 304 IPC. 29. P.W.7. Dr. B.N. Rai has stated that on 29.10.1979, he was posted as Incharge, Medical Officer at Primary Health Centre, Ratanpura, District Ballia and on that day at about 11:00 a.m., he medically examined Shiva Nand, aged about 18 years, brought by Constable Shiv Shanker Singh, and the following injuries were recorded to have been found on his person : 1. One contusion 10 cm. x 3 cm. on the front and outer aspect of the right forearm middle part, 14 cm. above the right wrist joint. 30. In the opinion of the doctor, the injury was simple and was caused by a blunt weapon. The duration was about 1/4 day. The doctor proved the injury report of Shiva Nand as Ex.Ka-9. 31. On the same day at 11:15 a.m., this witness (P.W.7) also examined the injury of Ram Cheej Singh and found the following injuries on his person : 1. One contusion 12 cm. x 3 cm. on the back of right forearm upper 3rd part, 10 cm. below the right elbow joint. 32. This witness opined that the injury was simple in nature and was caused by a blunt weapon. The duration was about 1/4 day. One contusion 12 cm. x 3 cm. on the back of right forearm upper 3rd part, 10 cm. below the right elbow joint. 32. This witness opined that the injury was simple in nature and was caused by a blunt weapon. The duration was about 1/4 day. He proved the injury report of Ram Cheej Singh, which is Ex.Ka-10. 33. In the cross-examination, this witness (P.W.7) has admitted that on 29.10.1979 at about 11:30 a.m., he had also examined the injuries of accused-appellant Chhangur, who had been brought to him by Constable Rajesh Prasad and the following injuries have been recorded to have found on the person of Chhangur : 1. One lacerated wound 4 cm. x 1 cm. x bone deep on the right side head, 6 cm. above the right ear. 2. One lacerated wound 0.5 cm. x 0.5 cm. x bone deep on the back of the left index finger on the left interphalangeal joint with suspected fracture of the under lying bone. X-ray advised. 34. In the opinion of the doctor, injury No. 1 was simple in nature but injury No. 2 was kept under observation. He advised X-ray of the right index finger. He opined that the injuries were caused by blunt weapon and the duration of the injuries was 1/4 day. He proved the injury report of Chhangur (Ex.Kha-2). 35. This witness (P.W.7) has also examined the injuries of Smt. Gunia wife of Baij Nath on 29.10.1979 at 11:45 a.m. and found the following injury on her person : 1. Complaint of pain in both legs and chest. 36. He opined that after very careful examination of the whole body of Smt. Gunia, he could not find any injury over her body except the aforesaid complaint of pain. He also proved the injury report of Smt. Gunia (Ex. Kha-3). 37. This witness has also examined Smt. Maliya wife of Chhangur on the same day at 9:30 a.m. and has recorded the following injuries on her person : 1. Contusion 6 cm. x 3 cm. on the back and outer aspect of right hand 4 cm. above of right wrist joint. 2. Lacerated wound 3 cm. x 1 cm. x bone deep in front of right leg 14 cm. above the knee joint. There was a possibility of of fracture beneath this injury. 3. Lacerated wound 1 cm. x 1 cm. x 3 cm. on the back and outer aspect of right hand 4 cm. above of right wrist joint. 2. Lacerated wound 3 cm. x 1 cm. x bone deep in front of right leg 14 cm. above the knee joint. There was a possibility of of fracture beneath this injury. 3. Lacerated wound 1 cm. x 1 cm. x skin deep on the joint of second finger of right leg. Bone found fractured beneath it. 38. All the injuries were kept under observation and X-ray was advised. In the opinion of doctor, injuries were caused by any blunt object i.e. lathi, danda and were fresh in duration. 39. This witness has filed the certified copy of the injury report prepared in respect of Smt. Maliya comparing it with the original register. As per this witness, original injury report was a part of the record of Sessions Trial No. 161 of 1981, State v. Ram Surat and others. It has also been stated that injuries found on the person of the injured may have been caused at 7:00 a.m. on 29.10.1979. 40. This witness has also examined the injuries of Baijnath on the same day at 9:45 a.m. and following injuries have been stated to have been found on his person : 1. Abrasion 1 cm. x 1 cm. on the upper part of the head, 15 cm. above left ear. 2. Lacerated wound 3 cm. x 1 cm. x bone deep right side of face on the outer aspect of maxillary bone near right eye. Fracture was found beneath it. 3. Contusion 6 cm. x 4 cm. on the left side of face just outer aspect of left eye. 4. Contusion 13 cm. x 3 cm. on the right side of back of chest 20 cm. below the back joint. 5. Lacerated wound 2.5 cm. x 1 cm. x bone deep on the back side of right elbow. 41. In the opinion of this witness, injuries No. 1, 3, 4 and 5 were simple in nature. Injury No. 2 was grievous injury. All the injuries have been caused by a blunt object i.e. lathi, danda, bricks etc. They were fresh at the time of examination. He has also opined that injuries may have been caused at 7:00 a.m. on 29.10.1979. He has proved the certified copy of the injury report. 42. P.W.8 Dr. Injury No. 2 was grievous injury. All the injuries have been caused by a blunt object i.e. lathi, danda, bricks etc. They were fresh at the time of examination. He has also opined that injuries may have been caused at 7:00 a.m. on 29.10.1979. He has proved the certified copy of the injury report. 42. P.W.8 Dr. I.B.D. Trivedi has stated that on 30.10.1979, he was posted as Medical Officer at District Hospital, Ballia. He performed the autopsy at about 10:00 a.m. on the dead body of the deceased Gaya Singh on 30.10.1979, who had been brought by Constables Shiv Shanker Singh and Musafir Yadav in a sealed cover alongwith the police papers. Nature of injuries found on the body of the deceased have been recorded by us in the earlier portion of the judgment. 43. This witness further stated that he had prepared the post-mortem report Ex.Ka-1 at the time of post-mortem and in his opinion, the cause of death was shock and haemorrhage, as a result of ante-mortem injuries. This witness has sent back the nine police enclosures and other material found on the body of the deceased through the Constable concerned to the S.P. Ballia. 44. Deceased had died about one day before his body had been brought to the mortuary on 30.10.1979 at 6:00 a.m. It has also been opined by this witness that death of the deceased might have taken place on 30.10.1979 between 6:00 a.m. to 8:00 a.m., caused due to ante-mortem injuries found on the body of the deceased, which were sufficient in ordinary course of nature to cause the death of the deceased. 45. In the cross-examination, this witness has stated that he had done the X-ray of Smt. Maliya on 6.11.1979, who had been referred by the Medical Officer of Primary Health Centre, Ratanpura. Both the bones of right leg were found fractured but no abnormality was found in the right arm. This witness has filed the certified copy of X-ray report proved as Ex.Kha-4. 46. P.W.9 Gauri Shanker Singh has stated that on 29.10.1979, he was posted as Station Officer at Police Station Haldharpur, Ballia. First Information Report was lodged in his presence and he himself started the investigation. Informant Ram Cheej Singh and Shiva Nand both were present at the police station concerned. He interrogated them. 46. P.W.9 Gauri Shanker Singh has stated that on 29.10.1979, he was posted as Station Officer at Police Station Haldharpur, Ballia. First Information Report was lodged in his presence and he himself started the investigation. Informant Ram Cheej Singh and Shiva Nand both were present at the police station concerned. He interrogated them. Deceased Gaya Singh was unconscious at that time, therefore, he could not record his statement. After sending the injured persons to the hospital, he reached the place of occurrence and recorded the statement of witness Swami Nath and also inspected the place of occurrence and prepared the site plan (Ex.Ka-12) mentioning all the details in it. He has also taken the plain and blood stained samples of the earth from the spot and kept them in separate containers and prepared the memo. He received the information about the death of injured Gaya Singh and reached the Hospital concerned and prepared the inquest report of the deceased before the witnesses. This witness has proved the inquest report Ex.Ka-13 and other police papers prepared at that time as Ex.Ka-14 to Ka-16. The dead body was sealed and the sample seal was also prepared and sent to the mortuary through the Constables for post-mortem. He has also interrogated the witnesses present at the time of inquest and then returned to the concerned police station and also recorded the statements of some of the accused persons who were in custody. He has also recorded the statement of witnesses on 30.10.1979 and 16.2.1980. Thereafter he was transferred from there. 47. D.W. 1 Bal Govind has stated that at the time of the incident, he was the thokdar of the distribution of water from the Government Tube-well of Nawalpur (Ratohi). He had given the water of the Tube-well to Chhangur one day before the incident but due to want of electric supply on that day, he had given the water to Chhanger on the day of incident also. He stated that on the day of incident, he had not distributed the water of the Tube-well to anyone else except Chhangur. He further stated that at the time of mar-peet, he was not present there, thought he is named in the F.I.R. (Ex.Kha-1) lodged by Chhangur. This witness admitted that accused Ghurpatari is his real brother. He stated that on the day of incident, he had not distributed the water of the Tube-well to anyone else except Chhangur. He further stated that at the time of mar-peet, he was not present there, thought he is named in the F.I.R. (Ex.Kha-1) lodged by Chhangur. This witness admitted that accused Ghurpatari is his real brother. He had not maintained any account of the distribution of the water and was unable to state the distribution of the water on a particular date except for the date of incident. 48. Heard Sri V.P. Srivastava, learned Senior Counsel assisted by Sri Ranjay Kumar, learned counsel for the appellants and Sri Rajiv Lochan Shukla & Sri Rajeev Kumar Singh, learned counsel for the complainant as well as Sri Rajiv Sharma, learned A.G.A. for the State. 49. After taking us through the FIR No. 141A of 1979 and the Cross-FIR No. 141 of 1979 dated 29-10-1979, the entire material relied on by the prosecution and defence, the decision of the trial Court in Sessions Case No. 18 of 1981 and the reasoning of the impugned decision, Sri V.P. Srivastava, learned Senior Counsel assisted by Sri Ranjay Kumar, contended that the members of the complainants’ party were aggressors, they forming an unlawful assembly armed with lathi and danda had reached the spot in order to assault the accused persons. It is further submitted that the appellants-accused persons had not committed any offence and whatever they did was in exercise of their right of self defence. There is no evidence on record to show that the accused persons being the members of unlawful assembly committed the murder of deceased Gaya Singh in furtherance of common object. In such circumstances, the appellants-accused deserve to get the benefit of right of private defence of their person. They also submitted that there is no explanation offered by the prosecution, at the initial stage explaining as to how the appellants Chhangur, Baij Nath and the women belonging to the appellants side sustained serious injuries. They also contended that the prosecution side suppressed the true genesis of the incident. It is highly improbable that initially the altercation took place between Ram Sarikh and the appellant Chhangur, but none received any injury. They also contended that the prosecution side suppressed the true genesis of the incident. It is highly improbable that initially the altercation took place between Ram Sarikh and the appellant Chhangur, but none received any injury. It was also contended that finding of the trial Court that the complainant side acted in exercise of their right of private defence of their body as well as their property, is against law and evidence, available on record. Findings of the trial Court on point of medical evidence regarding injuries found on the body of deceased Gaya Singh are also contrary to the oral evidence. A plea of right to private defence cannot be based on surmises and speculation. 50. In support of his contentions, learned counsel for the appellants has placed reliance on following legal precedents : 1. Mitter Sen and others v. State of U.P., 1976 (1) SCC 723 . 2. Laxmi Singh and others v. State of Bihar, 1976 Cr LJ 1736. 3. Laxman Singh v. Poonam Singh and others, AIR 2003 SCC 3204. 4. V. Subramani and another v. State of Tamil Nadu, 2005 Cr LJ 1727. 5. Naveen Chandra v. State of Uttaranchal, 2007 (57) ACC 408. 6. Narain Singh and others v. State of Haryana, AIR 2008 SCC 2006. 7. Babu Ram and others v. State of Punjab, 2008 (3) SCC 709 . 8. Amarjit Singh v. State of Haryana, 2010 STPL (LE) 43119 SC, AIR 2010 SC 2502 51. Learned counsel for the appellants has also drawn our attention to Modi’s Medical Jurisprudence and Toxicology to clarify the nature of injuries found on the body of the deceased and the weapon by which it was caused. 52. On the other hand, Sri Rajiv Sharma learned A.G.A. and Sri Rajiv Lochan Shukla learned counsel appearing for the complainant submitted that the judgment of the trial Court is based on cogent evidence and is in accordance with the settled principles of law. It was further pointed out that the appellants-accused had committed the present crime after planning and preparation. It was also pointed out that as soon as the members of the complainant party reached the place of occurrence, the appellants-accused attacked them with weapons like spade, lathi and danda, and consequently, Gaya Singh was seriously injured and subsequently succumbed to his injuries. It was also pointed out that as soon as the members of the complainant party reached the place of occurrence, the appellants-accused attacked them with weapons like spade, lathi and danda, and consequently, Gaya Singh was seriously injured and subsequently succumbed to his injuries. Injuries found on the persons of appellants side have been caused by the complainant party in the exercise of their private defence. Finally, they submitted that the prosecution has proved its case beyond reasonable doubt and the impugned judgment does not suffer from any infirmity or illegality. Learned counsel for the complainant has placed reliance on the following case laws : 1. Kalloo alias Sahadat and another v. State of U.P., [2012 (78) ACC 871] (Allahabad High Court). 2. Azad Khan and another v. State of U.P., [2012 (78) ACC 367] (Allahabad High Court). 3. Puran Singh and others v. State of Punjab, [ AIR 1975 SC 1674 ] (Supreme Court). 4. Rishi Kesh Singh v. State, [AIR 1970 (All)-0-51] (Allahabad High Court). 5. Darshan Singh v. State of Punjab and another, [2010 (68) ACC 709] (Supreme Court). 53. We have carefully considered the rival submissions and perused all the relevant materials. Findings of the Trial Court (i) The accused persons knew it very well that if scuffle ensues, the informant and his companions, who were pattidars of Ram Sarikh Singh, would certainly side with Ram Sarikh Singh. In the circumstances, the accused persons, who were admittedly the members of one party had gone there to forcibly break the water channel for diverting the water to the fields of accused Chhangur. (ii) At the time the altercation started between Ram Sarikh and accused persons, the informant Ram Sarikh Singh and his companions were not present at the place of occurrence and after hearing the uproar of the altercation, they rushed to the place of occurrence. (iii) Gaya Singh, who was a very old man aged about 80 years was empty handed while other persons had lathi with them. (iv) Accused persons were aggressors, they intercepted the informant and his companions even before they had reached the place where the drain channel (watercourse) was broken by the accused. (v) It was also observed that defence version was not believable that informant’s side caused injuries to Chhangur and Baijnath. They fell down. Thereafter Chhangur’s wife and his old mother caused injuries to the informant and his men. (v) It was also observed that defence version was not believable that informant’s side caused injuries to Chhangur and Baijnath. They fell down. Thereafter Chhangur’s wife and his old mother caused injuries to the informant and his men. (vi) The spontaneous lodging of the First Information Report gives additional assurance to the genuineness of the prosecution versoin. (vii) It was further observed that in a mar-peet, where lathis are used by both the sides, it is not at all necessary that each and every person who participated in the scuffle would receive some injuries. (viii) From the evidence and circumstances of the case on record it is established that all the accused-persons had taken part in the scuffle. (ix) It was also observed by the trial Court that the wife of Chhangur admittedly received serious injuries during the incident when she had tried to save her husband Chhangur during the scuffle. (x) Accused persons have not acted in exercise of their right of private defence, but the evidence available on record suggests that the accused persons were in fact the aggressors and the informant and his men were acting in exercise of their right of private defence of their person as well as property. (xi) Since Ram Sarikh was rightfully using the water of the channel from the Government tube-well, therefore, he was in actual possession and in the state of actual enjoyment of the water of the channel, while the accused persons without having any right to take the water from the channel, committed theft and mischief by breaking the drain and diverting the water to the field of the accused Chhangur and, therefore, right exercised by the informant side to protect the property was justified. (xii) Gaya Singh was admittedly a very old man. He was incapable of using lathi in the mar-peet. He was going to the place of occurrence to dissuade the accused persons from taking recourse to violence. There was no justification for the accused to inflict a fatal blow on his head by means of the pasa of the spade. (xiii) Medical evidence clearly supported that due to injury caused by the accused persons, parietal bone and frontal bone of the deceased Gaya Singh were fractured and the membrane of the brain was also broken. There was no justification for the accused to inflict a fatal blow on his head by means of the pasa of the spade. (xiii) Medical evidence clearly supported that due to injury caused by the accused persons, parietal bone and frontal bone of the deceased Gaya Singh were fractured and the membrane of the brain was also broken. Blood clotting was also present in the brain and thus injury was caused with great force on his head with the pasa of the spade which was sufficient to cause death. 54. Admitted and Established Facts (i) Quarrel took place between the parties on the date, time and place mentioned in the F.I.R. (Ex. Ka-1& Ex. Kha-1). (ii) Ram Cheej Singh and Sewanand received injuries in the incident while Gaya Singh died as a result of sustaining the fatal injury on his head, on his way to the hospital from the police station. (All three persons belonged to the complainant’s side.) Injuries of Ram Cheej and Sewanand were also examined. (iii) Injuries have also occurred to the accused side namely Chhangur, Baijnath and Chhangur’s wife and mother in the same incident. Their injuries were also examined by the doctor as medico legal case. (iv) It is also admitted to the parties that drain originating from the tube-well lay in the southern boundary of the field of accused Chhangur and on the date of incident, initially the informant side, Ram Sarikh was taking water from the drain but the flow of water was stopped by the accused Chhangur near the place shown in the site plan as “4” for diverting water to his field. (v) It is also admitted to the complainants that the accused had lodged the First Information Report against them at the P.S. concerned first and the injured belonging to the accused side i.e. Chhangur, Baijnath and Chhangur’s wife and mother have also been medically examined as medico legal case. The First Information Report of the present case has been lodged after the lodging of the First Information Report by the accused against the informant side. (vi) Post-mortem has been conducted on the next day of the incident on the dead body of the deceased. The First Information Report of the present case has been lodged after the lodging of the First Information Report by the accused against the informant side. (vi) Post-mortem has been conducted on the next day of the incident on the dead body of the deceased. It is also not disputed between the parties that the place of occurrence where the incident is said to have occurred is the place situated on the road near Hiraman baba ka sthan adjacent to the field of appellant Chhangur. Discussion 55. As is evident from the record, it is not in dispute that in respect of the same incident that took place on 29-10-1979, there had been two FIR, namely, FIR No. 141 of 1979 and Cross-FIR No. 141A of 1979. In this appeal, we are concerned about FIR No. 141Aof 1979 in which the present appellants were implicated as accused. The said FIR was registered on the basis of a complaint made by one RamChij Singh who was examined as PW 1. Though we are not directly concerned with Cross-FIR No. 141 of 1979 dated 29-10-1979, in view of the plea and the defence of the present appellants, it is desirable to consider the contents of the same. 56. It is relevant to note that in respect of FIR No. 141 of 1979, the present complainant and his men were facing trial which ended in acquittal. This fact was brought to the notice of the Court during course of arguments. Evidence recorded during trial and judgment passed in relation to cross case have not been filed in this matter but F.I.R. and injury reports relating to cross case have been filed and proved and the same have been taken into consideration in the impugned judgment. Learned A.G.A. has also reported that no appeal has been filed against the said judgment. Thus the Court proceeds to decide the appeal comparing the evidence adduced by the prosecution side in the FIR No. 141A/1979 and the version taken in the FIR No. 141./1979 as noted in earlier part of the judgment. 57. Before we proceed further to discuss the point raised by the parties, we prefer to refer to the relevant paragraphs of a few judgments passed by the Hon’ble Supreme Court. 1- Mohd. Khalid Chisti v. State of Rajasthan and others, (2013)2 SCC 541 , which are as under : 30. 57. Before we proceed further to discuss the point raised by the parties, we prefer to refer to the relevant paragraphs of a few judgments passed by the Hon’ble Supreme Court. 1- Mohd. Khalid Chisti v. State of Rajasthan and others, (2013)2 SCC 541 , which are as under : 30. In Lakshmi Singh v. State of Bihar, this Court held that: (SCC p. 400, para 12) “12. ... It is well-settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence.” It is clear that: “12. ... where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants. ... in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: ‘’(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.’” (Lakshmi Singh case, SCC p. 401, para 12) 31. It is further clear that: (Lakshmi Singh case, SCC pp. 401-02, para 12) “12. ... The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. ... 401-02, para 12) “12. ... The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. ... [However,] there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, ... that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.” 32. In Waman v. State of Maharashtra, wherein one of us (P. Sathasivam, J.) reiterated the very same principles and held that: (SCC p. 306, para 36) “36. Ordinarily, the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of occurrence, if the injuries are minor in nature, however, if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of the same occurrence then certainly the Court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. However, if the evidence is clear, cogent and creditworthy then non-explanation of certain injuries sustained by the deceased or injury on the accused ipso facto cannot be the basis to discard the entire prosecution case. 34. In Raghubir Singh v. State of Rajasthan, the following conclusion in para 16 has been pressed into service: (SCC p. 241) “16. In the light of the facts that have been enumerated above, it would be seen that the observations of the High Court that both sides had come to do battle appears to be justified as this is an assessment on an appreciation of the evidence which cannot be said to be palpably wrong so as to invite the intervention of this Court. The observation in Gajanand case that in order to bring the matter within a free fight both sides have to come armed and prepared to do battle must be applied in the present case with the result that each accused would be liable for his individual act.” 35. In Krishnan v. State of T.N., the following principles have been relied on: (SCC pp. 311-13, paras 15-17) “15. It is now well-settled that the onus is on the accused to establish that his action was in exercise of the right of private defence. The plea can be established either by letting in defence evidence or from the prosecution evidence itself, but cannot be based on speculation or mere surmises. The accused need not take the plea explicitly. He can succeed in his plea if he is able to bring out from the evidence of the prosecution witnesses or other evidence that the apparent criminal act was committed by him in exercise of his right of private defence. He should make out circumstances that would have reasonably caused an apprehension in his mind that he would suffer death or grievous hurt if he does not exercise his right of private defence. There is a clear distinction between the nature of burden that is cast on an accused under Section 105 of the Evidence Act (read with Sections 96 to 106 of the Penal Code) to establish a plea of private defence and the burden that is cast on the prosecution under Section 101 of the Evidence Act to prove its case. The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability (vide Partap v. State of U.P., Salim Zia v. State of U.P. and Mohinder Pal Jolly v. State of Punjab). 16. In Sekar v. State, this Court observed: (SCC p. 355b-d) ‘’A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. 16. In Sekar v. State, this Court observed: (SCC p. 355b-d) ‘’A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case, the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record.’ 17. The above legal position was reiterated in Rizan v. State of Chhattisgarh. After an exhaustive reference to several decisions of this Court, this Court summarised the nature of plea of private defence required to be put forth and the degree of proof in support of it, thus: (SCC pp. 670-71, para 13) ‘’13. ... Under Section 105 of the Evidence Act, 1872, the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. When the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. ... The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea. 42. The analysis of the materials clearly shows that two versions of the incident adduced by the prosecution are discrepant with each other. In such a situation where the prosecution leads two sets of evidence each one which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the Court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Though the accused would have the benefit of such situation and the counsel appearing for the appellants prayed for acquittal of the appellants of all the charges, in view of the principles which we have already discussed, we are of the view that each accused can be fastened with individual liability taking into consideration the specific role or part attributed to each of the accused. In other words, both sides can be convicted for their individual acts and normally no right of private defence is available to either party and they will be guilty of their respective acts. In other words, both sides can be convicted for their individual acts and normally no right of private defence is available to either party and they will be guilty of their respective acts. 2- Hon’ble The Supreme Court in Arjun v. State of Maharashtra, (2012) 5 SCC 530 , at page 536 has held as follows : 22. The law clearly spells out that the right of private defence is available only when there is a reasonable apprehension of receiving injury. Section 99 IPC explains that the injury which is inflicted by a person exercising the right should commensurate with the injury with which he is threatened. True, that the accused need not prove the existence of the right of private defence beyond reasonable doubt and it is enough for him to show as in a civil case that preponderance of probabilities is in favour of his plea. The right of private defence cannot be used to do away with a wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence. 23. It is for the accused claiming the right of private defence to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution, if a plea of private defence is raised. (Munshi Ram v. Delhi Admn., State of Gujarat v. Bai Fatima, State of U.P. v. Mohd. Musheer Khan, Mohinder Pal Jolly v. State of Punjab and Salim Zia v. State of U.P.) 24. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find out whether the right of private defense is available to an accused, the entire incident must be examined with care and viewed in its proper setting. 3- In the case of Darshan Singh v. State of Punjab and another, vide judgment and order dated 15.1.2010 passed in Criminal Appeal No. 1057 of 2002 The Apex Court has also held in paragraph 58 as under : “58. The following principles emerge on scrutiny ............... 3- In the case of Darshan Singh v. State of Punjab and another, vide judgment and order dated 15.1.2010 passed in Criminal Appeal No. 1057 of 2002 The Apex Court has also held in paragraph 58 as under : “58. The following principles emerge on scrutiny ............... : (i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits. (ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. (iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. (iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminus with the duration of such apprehension. (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. (vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. (vii) It is well-settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. (ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.” 58. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.” 58. From the perusal of the case laws relied upon by the parties and also the case laws discussed by us in the judgment, it is settled position that the burden to prove the exercise of right of private defence lies upon whom who pleads the same. This burden can be discharged by adducing positive evidence or establishing/showing the circumstances before the Court to extend the benefit of private defence to the parties concerned. It is also settled law that omission on the part of prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence considered is of interested or inimical witnesses or the defence gives a version which competes in probability with that of the prosecution case. However, there may be cases where non-explanation of the injuries by the prosecution may not effect the prosecution case because the prosecution is not bound to explain each injury on the accused even though the injuries might have been caused in the course of the occurrence. If the injuries are minor in nature and prosecution fails to explain such injuries, then Court looks at the prosecution case with little suspicion, but where prosecution has suppressed the two versions of the incident, the result would be otherwise. Where both sides had fought a pitched battle taking up arms and attacked each other, then in such a situation, the case would come under the purview of a free fight and thus principle of individual responsibility shall be applied in determining the responsibility and liability of the persons of both the sides who participated in the incident. In such cases of mutual fights, both sides can be convicted for their individual acts. 59. Learned Trial Judge opinion that complainants were acting in exercise of their right of private defense of property is based on the fact that the appellant-accused Chhangur was diverting the water of the channel forcibly without the consent of Ram Sarikh, who was legitimately enjoying the water of the channel for irrigating his field. To analyze this finding the provisions of Section 105 I.PC. To analyze this finding the provisions of Section 105 I.PC. regarding commencement and continuance of the right of self defence of property has to be taken into consideration. 60. The second clause of Section 105 I.P.C. provides that right of private defense of property against theft continues till the offender has effected his retreat from the property or the assistance of a public authority is obtained, or the property has been recovered. 61. Sri V. P. Srivastava learned Senior Counsel appearing for the appellants has emphasized that the incident of scuffle happened at place “6'’ shown in the site plan ext.ka.12, but the place where the drain is said to be broken by the appellants is at place “4'’ shown in the site plan which indicates that appellants-accused while they were returning home came across the complainant side at ‘Heeraman Baba Ka Sthan’. This place is about 50 paces away from the place shown as “4”. 62. After having gone through the testimony of the prosecution witnesses i.e. P.W.1, P.W.2., P.W.3, P.W.4 it is much quite clear that the prosecution witnesses themselves have admitted that when they reached the place “6'’ shown in the site plan Ex.ka.-12, the appellants-accused assaulted them there. It is not the case of the complainant that they were trying to mend the drain after which the incident took place. Exhortation followed by mar-peet took place at the place “6'’ (letter shown in the site plan Ex.ka.-12). The dictionary meaning of word ‘Retreat’ is that to retire or to recede. 63. It is also an admitted case of the complainant that ‘Heeraman Baba Ka Sthan’ is one furlong away from the house of the complainant. Only Ram Sarikh from the side of complainants was present at the place shown as “4” in the site plan where allegedly the drain was broken to divert the water from the field of Ram Sarikh therefore he would certainly be said to be an aggrieved person entitled to resist the invasion of his water channel. Witnesses examined by the prosecution have not stated that when complainants reached at ‘Heeraman Baba Ka Sthan’, the accused-appellants rushed to that place from where the drain is said to have been broken. 64. Witnesses examined by the prosecution have not stated that when complainants reached at ‘Heeraman Baba Ka Sthan’, the accused-appellants rushed to that place from where the drain is said to have been broken. 64. Had the scuffle between both the parties taken place at place “4”, the consequence would have been different and it could be presumed that the complainant side was acting in their right of private defense of their person and property. Trial Court’s view that complainant side were acting in the exercise of their right of private defence and had caused injuries to the appellants’ side does not seem to be correct in the circumstances and evidence of the present case. 65. Facts and circumstances of the case clearly go to show that the marpeet between the two groups occurred at place “6”. The provisions of Section 105 of the Indian Penal Code, as has been quoted here-in-above, when applied to the facts and circumstances of the present case clearly show that the complainant’s side were not acting in exercise of their right of self defence because they were not present on the spot from the very beginning. Ram Sarikh, who is said to be present at the place of occurrence, has not received any injuries. It is also pertinent to refer here that the complainant’s side initially in the First Information Report have suppressed the injuries sustained by the appellant side in the same incident. Similarly, the appellants have also not mentioned in their First Information Report that the complainant’s side had also received injuries in the same incident. Both the First Information Reports relate to the same incident. Date, time and place of occurrence have been admitted by both the parties. During course of evidence, complainant’s side tried to explain the injuries of the appellants’ side. Appellants’ side injuries have also been proved by the prosecution witnesses. 66. Now the Court proceeds to consider the submission with regard to free fight sought to be canvassed by the appellants. 67. A free fight is one where both the sides mean to fight from the start, go out to fight when there is a pitched battle. The question who attacks and who defends in such a fight is wholly immaterial and depends upon the tactics adopted by the rival commanders. 67. A free fight is one where both the sides mean to fight from the start, go out to fight when there is a pitched battle. The question who attacks and who defends in such a fight is wholly immaterial and depends upon the tactics adopted by the rival commanders. Thus in a case of free fight, it is not possible to ascertain as to who was the aggressor or as to how the fight started, but in the circumstances neither side would be entitled to claim benefit of private defence. In such cases, each individual is liable for his own act i.e. act committed by him individually. 68. The case in hand admittedly not only the complainant side i.e. Ram Cheej, Ram Surat and Gaya Singh received injuries in the said incident, but the appellant side of accused i.e. Chhangur, Baijnath, mother and wife of appellant Chhangur have also received grievous injuries. Injuries received by the appellants side are not superficial injuries, but they are grievous in nature. Apart from this, from a perusal of the record, it is also clear that injuries received by the appellants side are more in number than the injuries received by the complainant’s side. 69. It may also be mentioned here that complainant’s right of private defence, as has been concluded by the trial Court, cannot be accepted because none of the complainant’s side except Ram Sarikh Singh was present at the initial stage of incident at place “4”. They had come after hearing the uproar at place “6”, which clearly indicates that when they came to the place of occurrence armed with lathi and danda with premeditated notion to fight the appellants and in furtherance of their plan, they have participated in the incident at place “6”. Presence of appellants side at place “6” at the time of incident from the beginning is possible and probable on the ground that field of Chhangur is also lying adjacent to that place. 70. Thus, on re-appreciation of the evidence and in view of the discussion made here-in-above, we are of the opinion that the trial Court’s finding that complainant side were acting in their right of private defence is not in accordance with the evidence. 70. Thus, on re-appreciation of the evidence and in view of the discussion made here-in-above, we are of the opinion that the trial Court’s finding that complainant side were acting in their right of private defence is not in accordance with the evidence. Also, the facts and circumstances of the case do not support the finding arrived at by the trial Court on this issue, rather findings of the trial Court appear to have been arrived at on the basis of surmises and conjectures. 71. The next point that has been raised by the learned counsel for the appellants is that the appellants were not aggressors and the finding of the trial Court in this regard is erroneous and illegal. This argument when considered alongwith the submissions of the learned A.G.A. and learned counsel for the complainant and also in the light of the testimony of the prosecution witnesses, it is evident that the prosecution has not been able to establish that the scuffle took place after premeditated plan of the appellants. There is no evidence on record except the said alleged exhortation made by the appellant Baij Nath (now deceased) that the appellants had any prior intention to cause such injuries to the complainant’s side. From the perusal of the record, it also appears that the complainant’s side had themselves proceeded to the place of occurrence armed with lathis and dandas and come across the appellants’ side at ‘Heeraman Baba Ka Sthan’ and thereafter there was a pitched battle between the two sides resulting in death and injury. It is more important to note here that trial Court has opined that deceased was empty handed at the time of said occurrence, but from the perusal of statement of P.W.4 (Shiva Nand) it is evident that in the cross-examination this witness has clearly admitted that Gaya Singh (deceased) was also armed with a lathi at the time of occurrence. All the injuries sustained by the appellants are not minor and superficial in nature, but there are some grievous injuries as well. Non-mentioning the fact of injuries inflicted upon the appellants side by the complainant in the F.I.R. and also non-mentioning of the presence of the mother and wife of the appellant Chhangur at the place of occurrence certainly created little suspicion that prosecution has suppressed the true version of the incident. Non-mentioning the fact of injuries inflicted upon the appellants side by the complainant in the F.I.R. and also non-mentioning of the presence of the mother and wife of the appellant Chhangur at the place of occurrence certainly created little suspicion that prosecution has suppressed the true version of the incident. Since both the sides had come armed with lathi and danda ready to fight, therefore, in our considered view, in the present case, each accused would be liable for his individual act. As both the sides had come to fight, the finding of the trial Court in this regard seems incorrect. View taken by us, also finds support from the evidence available on record. The finding of the trial Court, that appellants have not acted in the exercise of their right of private defence may be true, but the finding that complainant’s side acted in their right of private defence does not appear to be correct. View taken by the trial Court on the point of aggressors does not find support from the evidence available on record because the appellants and the complainant both were not present at the place where the drain is said to have been broken. 72. Trial Court has also opined that wife of Chhangur admittedly received serious injuries during the incident while trying to save her husband Chhangur during the scuffle. In our opinion this finding is also in line with the finding arrived at by this Court. It is also pertinent to mention here that complainants have admitted that D.W.1 Bal Govind had authority to distribute the water on the date of occurrence. 73. If the finding recorded by the trial Court regarding injuries sustained by the wife of appellant Chhangur is compared with the finding regarding aggression, both appear to be self-contradictory and erroneous because Ram Sarikh was said to be present on the spot (where the drain was allegedly broken) from the very beginning, but he has not received any injuries during the said scuffle. Therefore, it clearly indicates that it was a case of sudden fight between the two groups, one of the appellants and other of the complainants and both the groups were armed with the weapons causing injuries to each other. 74. Therefore, it clearly indicates that it was a case of sudden fight between the two groups, one of the appellants and other of the complainants and both the groups were armed with the weapons causing injuries to each other. 74. Finding recorded by the trial Court that the accused persons knew it very well that in case of a scuffle, the informant and his companions, who were pattidars of Ram Sarikh Singh, would certainly take the side of Ram Sarikh Singh also supports the view adopted by this Court. It may also be noted here that no call was given by Ram Sarikh Singh to the complainant to reach the place of occurrence. The complainant has reached there only after hearing the uproar. Since all the persons accompanying the informant Ram Cheej Singh were armed with lathis, therefore, it shows that they had the intention to fight a pitched battle with the appellants. 75. Trial Court’s finding regarding spontaneous lodging of the First Information Report on behalf of the complainant is also against the evidence on record, as the First Information Report has been lodged initially by the appellants and thereafter the First Information Report in the instant case was lodged. Thus, the benefit given to the complainant by the trial Court on this score is also against the evidence. Even if it is presumed that Ram Sarikh was rightfully using the water of the channel for irrigation from the Government tube-well, but this by itself could not give any right to other members of complainant’s side to interfere in the matter. 76. As far as the medical evidence in regard to injuries of the deceased Gaya Singh is concerned, the trial Court has opined that the appellant Chhangur had caused a blow with the back of the spade over the head of the deceased, which had resulted in his death and moreover the injury was sufficient in the ordinary course of nature, to cause the death of the deceased. 77. 77. It is the submission of the learned counsel for the appellants that all the prosecution witnesses have consistently supported the fact mentioned in the First Information Report that accused-appellant Baijnath (since deceased) initially caused lathi blow on the head of the deceased whereupon he fell down and thereafter accused-appellant Chhangur caused blow with the backside of the spade, meaning thereby when the first blow was caused on the head of the deceased, he was in standing condition and the first blow was caused by lathi. 78. Submission of the learned counsel for the complainant is that the shape and size of injury No. 1 clearly indicates that the death was a result of head injury caused by the backside of the spade. The spade has been used by appellant Chhangur, therefore, the view of the trial Court cannot be said to be erroneous. 79. P.W.8 Dr. I.B.D. Trivedi has clearly opined that the injuries found on the body of the deceased were in the form of a lacerated wound 8 cm. x 2 ½ cm. x bone deep on the head anterior part to the left placed anterio-posteriorly and contusion 4 cm. x 3 cm. on left side face upper part left of the maxillary region. 80. Certainly the injury No. 1 is 8 cm. in length and 2½ cm. in width and is situated on the left side of the head. Trial Court, while forming an opinion that injury No. 1 was caused by appellant Chhangur, has not discussed whether the injury No. 1 sustained by the deceased could be caused with the backside of the spade or whether there was a possibility that injury No. 1 could be caused with the lathi by Baij Nath. Whatever has been expressed by P.W.8 regarding injury No. 1, is merely an opinion and it can be adopted only if it supports the fact and circumstances. It is needless to mention here that the back side of the spade is always of semi-circular shape and the head of a person is also in the shape of vault. An injury measuring 8 cm. in length cannot be caused with the back of the spade. It is needless to mention here that the back side of the spade is always of semi-circular shape and the head of a person is also in the shape of vault. An injury measuring 8 cm. in length cannot be caused with the back of the spade. Apart from this, if the prosecution witnesses had themselves stated that the appellant Baijnath (since deceased) had caused head injury with the use of lathi blow, then considering the nature and shape of injury No. 1 found on the body of the deceased by P.W.8 Dr. I.B.D. Trivedi and also taking into consideration the testimony of P.W.1, P.W.2, P.W.3 & P.W.4, it is found established that injury No. 1 has been caused with the use of lathi by accused-appellant Baijnath (since deceased). Thus the trial Court finding that injury No. 1 has been caused by the appellant Chhangur is not correct and is not supported with the testimony of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.8 Dr. I.B.D. Trivedi. Therefore, the contention raised by the learned counsel for the appellants in this regard is acceptable. 81. The finding of the Trial Court that Gaya Singh (deceased) was not able to wield lathi in the marpeet and he was going to that place to dissuade the accused persons from taking recourse to violence and there was no justification for the accused to strike the fatal blow on the head by means of pasa of the spade, is not sustainable because P.W.4 Shiva Nand has admitted that deceased Gaya Singh was also armed with lathi at the time of the incident. Apart to this, it is not the case of the prosecution that deceased Gaya Singh proceeded to the place of occurrence to dissuade the accused persons from taking recourse to violence. This finding has been arrived at by the trial Court on the basis of surmises and conjectures and cannot be accepted. 82. Though the trial Court has found the appellant Baijnath (since deceased) responsible for the injury No. 2, received by the deceased on his cheek, the discussions made here-in-above clearly indicate that injury No. 1 was caused by appellant Baijnath (since deceased), which ultimately resulted in the death of the deceased. Therefore, finding recorded by the trial Court that accused-appellant Chhangur was responsible for injury No. 1 caused to the deceased is erroneous and is not sustainable. Therefore, finding recorded by the trial Court that accused-appellant Chhangur was responsible for injury No. 1 caused to the deceased is erroneous and is not sustainable. Injury No. 1 of the deceased Gaya Singh was caused by accused-appellant Baijnath (since deceased). 83. As far as the act done by the appellant Chhangur is concerned, he was only responsible for the injury found on the cheek of the deceased, which was simple in nature, but it was caused by the backside of the spade. 84. Therefore, in our considered view, it would be just and appropriate to hold the appellant Chhangur guilty of the offence punishable under Section 324 IPC for voluntarily causing hurt to the deceased Gaya Singh. 85. All the appellants were responsible for their individual acts and the element of common object is essentially lacking in the present matter. Therefore, recourse of the provision of Sections 149 IPC or 147 IPC is of no help in the instant case. Thus, we are of the view that conviction and sentence imposed vide impugned judgment and order against the appellant Chhangur under Sections 302, 323 read with 149 IPC and also 147 IPC is liable to be altered and modified to Section 324 IPC (minor offence) only. 86. As far as the role assigned to the appellant Ghoora is concerned, he has been convicted and sentenced for the offence under Sections 147, 323 read with 149 IPC and Sections 325 read with 149 IPC and there is no evidence at all on record to specify the role played by the appellant Ghoora. The element of common object has also not been found in the instant case. Thus, applying the rule of caution, the findings recorded by the trial Court regarding guilt of the appellant Ghoora is also not sustainable as the prosecution has not been able to establish the guilt of the appellant Ghoora beyond reasonable doubt. 87. Thus, on the basis of foregoing discussions, we are of the considered opinion that the appeal filed by the appellants deserves to be allowed in part and accordingly the same is partly allowed. 88. The finding recorded by the trial Court in respect of conviction and sentence of appellant Chhangur under Sections 302, 323 read with 149 IPC and 147 IPC is altered and modified to Section 324 IPC. 88. The finding recorded by the trial Court in respect of conviction and sentence of appellant Chhangur under Sections 302, 323 read with 149 IPC and 147 IPC is altered and modified to Section 324 IPC. He is convicted for the offence under Section 324 IPC only and sentenced to the period already undergone. 89. Finding of the trial Court regarding guilt of appellant Ghoora is also hereby set-aside. Appellant Ghoora is acquitted from the charges under Sections 147, 323 read with 149, 325 read with 149 IPC. 90. Appellants Chhangur and Ghoora are on bail. They need not to surrender. Their personal and surety bonds are hereby cancelled and sureties are discharged from their liability. Let a copy of this judgment alongwith the trial Court record be sent to the Court concerned for compliance. ———————