JUDGMENT : Mohammad Rafiq, J. This appeal has been preferred by accused-appellants Mangtu Ram and Chandan Singh. While accused-appellant Mangtu Ram has been convicted for offence u/s.302 read with Section 34 IPC, accused-appellant Chandan Singh has been convicted for offence u/s.302 IPC simplicitor. For such conviction, they have been sentenced to life imprisonment and fine of Rs.100 each, in default whereof, they were to further undergo simple imprisonment of three months. The facts of the case are that a written report was submitted on 14.03.2004 by complainant Veer Singh Banjara to SHO, Police Station Ghad, District Tonk alleging that at about 5.15 pm on that day, Ganpat, younger son of his uncle Bansi was constructing house on his land. Suddenly, Chandan, Mangtu Ram, Chainu, Sethani, Maya, Rumali, all Banjara by caste and residents of Maharaj Kanwarpura came there armed with lathis and axes. They restrained his cousin from constructing house and started abusing him and thereafter subjected him to beating by lathis and axes, as a result of which Ganpat sustained injuries and became unconscious and Nawal also sustained injuries. Police on receipt of the aforesaid written report initially registered the FIR for offence u/s.307, 323, 448, 147, 148 & 149 IPC and commenced investigation. Nine days after the incident and in the course of investigation, injured Ganpat succumbed to injuries, therefore, offence u/s.302 IPC was added. Finally, the police filed charge sheet against three accused namely; accused-appellants Mangtu Ram, Chandan Singh and Chaina Singh @ Chain Singh for offence u/s.302/34, 341 and 323 IPC. Charge against them was framed for the aforesaid offences, which they denied and claimed trial. Prosecution produced 17 witnesses and exhibited 26 documents. Defence produced 5 witnesses and exhibited 12 documents. The trial court on conclusion of the trial while acquitting Chaina Ram @ Chain Singh of the charges, convicted accused-appellants in the manner as indicated above. Hence this appeal. Shri N.A. Naqvi, learned senior counsel for the accused-appellants has argued that the statement of prosecution witnesses are full of infirmities and contradictions. He has argued that the learned trial court has failed to appreciate that land in dispute over which the complainant party wanted to forcibly construct the house, in fact, was owned by the accused appellants. It was not only in their possession, but its patta (Ex.D12) was issued in favour of their father Parsuram as far back on 29.5.1994. He has argued that the learned trial court has failed to appreciate that land in dispute over which the complainant party wanted to forcibly construct the house, in fact, was owned by the accused appellants. It was not only in their possession, but its patta (Ex.D12) was issued in favour of their father Parsuram as far back on 29.5.1994. It is therefore that the police by conscious decision did not either register any criminal case against the accused-appellants or file any charge sheet against them for offence u/s.447 or 452 of IPC. The complainant party claimed that such land was in their possession, whereas the fact was that the complainant party had left the village 25 years ago and went elsewhere to earn their livelihood. They raised the dispute when they returned back. This is proved from the statement of Karan Singh (PW5), Jagdish (PW6), Ram Niwas (PW9) and also Guddi (PW10), wife of the deceased that when complainant party wanted to forcibly take possession of the aforesaid land, a dispute arose between the parties and the meeting of the Panchayat was convened by the elders of the village, who mediated to settle the dispute in the terms that the accused shall give another piece of land to the complainant party to settle down in the village, but before that could happen, the complainant party took the law in their hands and tried to forcibly take possession of the disputed land and raise construction on the disputed land. Shri N.A. Naqvi, learned senior counsel for the accused-appellants argued that the prosecution cited Veer Singh (PW1), Naval (PW4), Karan Singh (PW5), Jagdish (PW6), Umeer Singh (PW7), Som Singh (PW8), Ram Niwas (PW9) and Guddi (PW10) as eye witnesses. While Jagdish (PW6), Som Singh (PW8) and Ram Niwas (PW9) have turned hostile, the statements of remaining five witnesses are also consistent as to the role assigned to the accused-appellants. All of them have consistently stated that when complainant party was trying to raise construction over the land of the accused-appellants and accused-appellants pose resistance then the dispute took place. While Jagdish (PW6), Som Singh (PW8) and Ram Niwas (PW9) have turned hostile, the statements of remaining five witnesses are also consistent as to the role assigned to the accused-appellants. All of them have consistently stated that when complainant party was trying to raise construction over the land of the accused-appellants and accused-appellants pose resistance then the dispute took place. It is stated by all the witnesses that Mangtu inflicted `lathi' blow on the back of Ganpat and thereafter Chandan inflicted `kulhari' blow on the head of Ganpat, as a result of which he fell down and then they dragged him to the `chowk' in front of house of Parsuram and again subjected him to beating. They have somewhat exaggerated the version by stating that Chain Singh inflicted `kulhari' blow from the sharp side at the back side of the head of the deceased Ganpat and Chandan Singh also inflicted a `kulhari' blow on the back side of the head of the deceased. Sethani inflicted `lathi' blow at the back of Ganpat, Maya inflicted a `lathi' blow at his shoulder and Rumali delivered `lakri' blow on the hip of the deceased. These witnesses have named Pokhar, Radhey Shyam, Mahaveer, Babulal and other persons of the village who intervened, but independent witnesses have not been produced. Even the trial court has disbelieved these witnesses substantially in so far they sought to falsely implicate more number of accused. But, none of the witnesses have stated that disputed land was ever in possession of the complainant. All that has been stated by aforesaid four witnesses is that when the complainant came back to the village after 25 years and wanted to again take possession of the land, it was resisted by the accused party and a compromise arrived at and it was agreed that they would be given another piece of land in lieu of the disputed land, thereby it is shown that it is the complainant party, who took the law into their hands and that in the scuffle that took place not only deceased sustained injuries, but two accused-appellants Mangtu Ram and Chaina Ram @ Chain Singh also sustained injuries. It is proved by injury report of Mangtu (Ex.D11) that he received seven injuries including one on the right side of midline on occipital region and accused Chaina Ram @ Chain Singh also sustained five injuries including one on scalp as per his injury report Ex.D10. Learned senior counsel for the appellants submits that other injuries sustained by these two accused were in the nature of abrasions, incise wounds and bruises, which shows that the complainant party was also armed and they had also actively took part in the incident because it was they who were trying to forcibly take possession of the land of accused-appellants. In that process, if the accused appellants had tried to defend their property in exercise of their right of private defence, they cannot be held guilty of culpable homicide amounting to murder. In so far as accused-appellant Mangtu Ram is concerned, the submission of the learned senior counsel is that it has been shown that he caused one single injury at the back of the deceased by nonlethal weapon and on non-lethal part of body. No witness has stated that he chased the deceased to the chowk in front of house of Parsuram and again subjected him to beating, although they made such allegation against other accused. There is no evidence of the fact that there was pre-meeting of mind and premeditation between the accused-appellants so as to bring the matter within the purview of common intention so as to attract Section 34 of the IPC. The incident appears to have taken place at the spur of the moment in a heat of passion on sudden quarrel because the complainant wanted to forcibly take possession of the land of the accused-appellants. There being thus no common intention proved and it being a case of cross fight, each of the accused would be responsible for individual guilt. While, therefore, the offence of accused-appellant Mangtu Ram can, in no case, travel beyond Section 323 IPC for causing one simple injury, the offence of accused-appellant Chandan Singh can, in no case, travel beyond Section 304 IPC. It is also because the deceased had not immediately died, but his death took place nine days after the incident while undergoing treatment in the hospital because he did not receive proper treatment. It is also because the deceased had not immediately died, but his death took place nine days after the incident while undergoing treatment in the hospital because he did not receive proper treatment. Shri N.A. Naqvi, learned senior counsel for the accused-appellants submits that investigation of this case was conducted by two Investigating Officers namely; Abhay Kumar (PW14) and Prabhu Singh (PW17). None of them have stated that the disputed land was in possession of the complainant party or that the accused had tried to evict them from the land. Prabhu Singh (PW17), the first Investigating Officer has denied the fact that any report was earlier submitted to him with regard to dispute of the aforesaid land or any compromise deed was submitted. Second Investigating Officer Abhay Kumar (PW14) has also denied having any knowledge about the alleged compromise to the effect that the accused shall give another land in lieu of the disputed land to the complainant party. This witness has stated that a cross case was registered at the instance of Chain Singh in FIR No.53/2004 on 15.3.2004, but before the investigation could be concluded, he was transferred. Prabhu Singh (PW17) has also admitted in cross examination about the registration of aforesaid FIR against Ganpat, Karan Singh, Umeer, Naval and Veer and that he got the injured in the cross case medically examined and filed challan therein which is Ex.D9, which document shows that the challan against the members of the complainant party in the cross case has been filed for offence u/s.147, 341 and 323 IPC. Learned senior counsel referred to the statement of defence witnesses namely; Dr. Bhanwar Lal Nama (DW1), Parsuram (DW2), Jes Ram (DW3), Gajraj (DW4) and Ajaba (DW5) and stated that these witnesses have clearly proved that the disputed land was in possession of the accused appellants and was never in possession of the complainant party and that they wanted to forcibly raise construction over such land. Shri R.S. Raghav, learned Public Prosecutor opposed the appeal and submitted that the disputed land was, in fact, taken possession of by the complainant party about a month ago because this land was of possession of their father. Even if they left village in between, accused-appellants could not have illegally taken possession of their land behind their back. The issuance of patta of their land by Gram Panchayat was without the authority of law. Even if they left village in between, accused-appellants could not have illegally taken possession of their land behind their back. The issuance of patta of their land by Gram Panchayat was without the authority of law. The accused-appellants were aggressors and they subjected Ganpat to beatings. Ex.P19 is injury report of deceased Ganpat, according to which he received six injuries. He was admitted in serious condition in SMS Hospital, Jaipur on the date of incident i.e. 14.3.2004, but died on 23.3.2005. In the postmortem report of Ganpat (Ex.P8), he was shown to have received nine injuries and the cause of death has been opined to be coma as a result of antemortem injuries to the skull and brain, which was sufficient to cause death in ordinary course of nature. Besides, learned Public Prosecutor referred to the statement of Dr. P.K. Saini (PW13), who has proved the injury report of the deceased (Ex.P19) and also statement of Dr. Sumant Dutta (PW11), who has proved the postmortem report (Ex.P8). This witness has clearly stated that deceased sustained fracture of right occipital part and temporal bone and it was injury no.3, which was proved fatal. Learned Public Prosecutor also referred to the statement of the eye witnesses and submitted that even if Jagdish (PW6), Som Singh (PW8) and Ram Niwas (PW9) have turned hostile, but then also they have proved the fact of compromise between the parties about one month ago regarding this land whereby the complainant were to handover possession of the disputed land to the accused party only when the accused provides them another land in lieu thereof. The learned trial court therefore rightly convicted the accused. If the accused wanted to recover possession of their land, it was open to them to take recourse of law by approaching any public authority or the Court. This shows that accused were aggressors and they have no right of private defence of person and property. In the scuffle that took place, however, if any of the members of the accused party sustained injuries, that does not bring the matter within the purview of right of private defence. It is also argued that lease deed (patta) (Ex.D12) produced by the defence does not show whether it belongs to disputed land or some other land. We have given our anxious consideration to the rival submissions and perused the material on record. It is also argued that lease deed (patta) (Ex.D12) produced by the defence does not show whether it belongs to disputed land or some other land. We have given our anxious consideration to the rival submissions and perused the material on record. It is a common ground between the grounds that dispute took place over the land, which was being claimed by both the parties. While the complainant claimed that this land was earlier owned by their father, who left the village long time ago and when they returned back, they again occupied this land about a month before the incident, the accused-party claimed that this land was not only in their possession, but also produced patta of that land issued in the name of their father Parsuram. It is quite surprising that none of the Investigating Officer has conducted any investigation on this aspect of the matter to find out and bring before the Court the exact position as to who was in possession of the land at the time of dispute. We, therefore, have to first examine the rival contentions on this aspect to find out whether the prosecution has been able to prove possession of the complainant over the disputed land. In doing so, we may also partly rely on the testimony of the witnesses, who have turned hostile because law in this regard is well settled that entire evidence of the hostile witnesses need not be discarded and to the extent of testimony of the hostile witnesses inspires confidence, it can be acted upon and thus entire evidence of the prosecution witnesses need not be discarded. Veer Singh (PW1), the informant in his statement has stated that quarrel took place between the complainant party and the accused about a month prior to the incident. Parsuram, father of the accused-appellants made a report on this matter to the Police Station and that the police people took the deceased Ganpat and the accused-appellants to the Police Station. Thereafter, a meeting of the Village Panchayat was convened and a compromise deed was prepared, which was signed by both the parties and panchas. Parsuram, father of the accused-appellants made a report on this matter to the Police Station and that the police people took the deceased Ganpat and the accused-appellants to the Police Station. Thereafter, a meeting of the Village Panchayat was convened and a compromise deed was prepared, which was signed by both the parties and panchas. He denied the suggestion that it was decided in the meeting that the disputed land shall be retained by Parsuram, rather what was agreed was that the disputed land belonged to Ganpat and Panchas asked Ganpat that he should in lieu of that land, accept another land from the accused-party. Parsuram disagreed to this suggestion by stating that since both the lands were of his patta, therefore, he shall not give part of his land. This witness has denied the suggestion that the accused forcibly dug the foundation of the wall on the disputed land. Karan Singh (PW5) has stated that the disputed land was in possession of the father of deceased Ganpat. He has denied the suggestion that any patta of this land was issued in favour of Parsuram, but admitted that a dispute between the two parties occurred one month's ago and the matter reached to the Police Station. The elders of the village thereupon intervened and got the matter compromised. It was denied that in the compromise, it was decided that Ganpat shall not raise any construction and that the complainant party agreed to accept another piece of land in lieu of disputed land. This witness denied the suggestion that alternate land was provided to the complainant and even then they insisted on retaining the land in dispute. Jagdish (PW6) has also made similar statement and has stated that Parsuram had `bada' on the back side of his house and on suggestion of Panchas, he agreed to give half land of this part to the complainant party, but when accused did not leave the possession of that land, the dispute took place. Similarly Ram Niwas (PW9), who though has been declared hostile, but has in cross examination admitted the factum of compromise between the parties and accused agreeing to give another piece of land to deceased. Similarly Ram Niwas (PW9), who though has been declared hostile, but has in cross examination admitted the factum of compromise between the parties and accused agreeing to give another piece of land to deceased. Guddi (PW10), wife of the deceased has also admitted the factum of dispute between the parties about a month ago and also the compromise in which the accused party agreed to give alternative land to the complainant. She has stated that when the accused did not give any alternative land, the complainant kept the disputed land. In contrast, however, when we see the testimony of the defence witnesses, we find that Parsuram (DW2) has categorically asserted that he was allotted this land by Panchayat Samiti Charnet and a patta was issued in his favour about ten years ago. He was in possession of the land for last 25 years. When he found that members of the complainant party were removing his `baad' from the land, he asked them not to do so and when they did not stop, he went to the Ghad Police Station. The SHO called the parties. The other members of the village also went there. A written compromise deed was prepared in which the complainant surrendered their claim over the disputed land in his favour. A copy of this compromise deed was retained by Panchas and another in the Police Station, but two days thereafter, the complainant again tried to demolish the `baad' and raised the construction and when they asked them not to do so, the incident took place. Jesram (DW3), who was one of the Panchas has also admitted that earlier also dispute took place between the parties and then the matter reached the Police Station and due to the intervention of the panchas, compromised was arrived at. This witness stated that Veer Singh and his family members were never in possession of that land. It was decided in the meeting of the Panchas that Parsuram continued to retain the possession of the land. A copy of the compromise deed was available with Jagdish. Gajraj (DW4) has also made similar statements. This witness stated that Veer Singh and his family members were never in possession of that land. It was decided in the meeting of the Panchas that Parsuram continued to retain the possession of the land. A copy of the compromise deed was available with Jagdish. Gajraj (DW4) has also made similar statements. It is indeed surprising that when so many prosecution witnesses have referred to the fact of dispute between the two parties about a month before incident regarding very same land and also that the matter reached police and thereafter the meeting of Panchas was convened in which a compromise was arrived at, how possibly both the investigating officers could turn a blind eye to this important aspect of the matter?. The first investigating officer Prabhu Singh (PW17) when confronted in cross examination on this aspect, pleaded ignorance as to the fact whether the disputed 'bada' belongs to Parsuram. He has also denied the knowledge of the fact that any report was submitted to the Police Station regarding such dispute on 24.02.2004 or that thereafter any compromise deed was produced before the Police Station with request not to proceed in that matter. He had no knowledge of the fact whether any such report is entered in his `rojnamcha'. He, in fact, has denied the suggestion that the disputed land belonged to Parsuram and deceased forcibly dug the foundation in that land or that any of the accused were subjected to beating. He has also stated that he did not procure any document from either Patwari or Panchas as to the ownership of deceased Ganpat on that `bada'. Abhay Kumar (PW14), second Investigating Officer also has remained equally negligent about this aspect of the matter. It appears that this witness in response to the suggestion in cross examination has denied that he concealed the fact about compromise. He also denied the suggestion that it was he, who got the matter compromised between the parties and persuaded accused party to give another plot to deceased Ganpat. It appears that this witness in response to the suggestion in cross examination has denied that he concealed the fact about compromise. He also denied the suggestion that it was he, who got the matter compromised between the parties and persuaded accused party to give another plot to deceased Ganpat. We are cognizant of the fact that the accused cannot get any benefit of the lapses or lacunaes in the investigation or negligence or carelessness on the part of Investigating Officers, but at the same time, we are also disturbed to note that when this fact was so prominently mentioned by so many prosecution witnesses before the Court and also during investigation, how could the two investigating officers ignore such a significant aspect of the matter and why did they not carry out proper investigation? We may also observe that both the parties in the present case belonged to Scheduled Tribe and that the apathy of the police towards their life and liberty is writ large when we see the manner in which the investigation was conducted in this case and many loopholes were left. We may in this connection referred to a recent judgment of Supreme Court in State of Karnataka Vs. K. Yarappa Reddy, AIR 2000 SC 185 , wherein while dealing with the question of defective investigation as to whether any manipulation in the station house diary by the Investigating Officer could be put against the prosecution case, the Supreme Court held that if the other evidence, on scrutiny, is found credible and acceptable, the court should not be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously. It can be a guiding principle that as investigation is not the solitary area for conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. The Court must have predominance and preeminence in criminal trials over the action taken by the investigation officers. Criminal Justice should not be made a casualty for the wrongs committed by the investigating officers in the case. The Court must have predominance and preeminence in criminal trials over the action taken by the investigation officers. Criminal Justice should not be made a casualty for the wrongs committed by the investigating officers in the case. The Supreme Court in Dayal Singh & Others vs. State of Uttaranchal, AIR 2012 SC 3046 observed that the Investigating Officer as well as the doctor, who are dealing with the investigation of a criminal case are required to act in accordance with the police manual and the known canons of medical practice respectively. They are both obliged to be diligent, truthful and fair in their approach and investigation. A default or breach of duty, intentionally or otherwise, can some times prove fatal to the case of the prosecution. An Investigating Officer is completely responsible and answerable for the manner and methodology adopted in completing his investigation. Whether the default and omission is so flagrant that it speaks volumes of a deliberate act or such irresponsible attitude of investigation, no court can afford to overlook it, whether it did or did not cause prejudice to the case of the prosecution. It is possible that despite such default/omission, the prosecution may still prove its case beyond reasonable doubt and the court can so return its finding. We, therefore, at this stage require the Director General of Police to take strict disciplinary action against the concerned Investigating Officers if they are still in service and if not, take steps to obtain sanction from the Governor for that purpose. Analysis of the evidence aforesaid shows that the prosecution has failed to conclusively prove that complainant was ever in possession of the disputed land. The prosecution failed to bring on record the copy of the compromise deed, which could throw light on the question of possession. While the defence claimed that a copy of the compromise deed was retained by the Police Station, but the same was not produced. Jagdish (PW6), who according to all the defence witnesses retained copy of the compromise, despite having appeared as a witness did not produce copy of it. The burden of proof on any aspect in a criminal trial always lies on the prosecution. Jagdish (PW6), who according to all the defence witnesses retained copy of the compromise, despite having appeared as a witness did not produce copy of it. The burden of proof on any aspect in a criminal trial always lies on the prosecution. This being the question of fact, is required to be proved is as to who was in possession of the land and the prosecution has failed to prove that the complainant party was in possession of the land and if so, for how long and when the patta has been produced by Parsuram, his possession over the disputed land should not be presumed? Although in the instant case, the dispute between the parties led to unfortunate death of Ganpat, but the genesis of the dispute has been withheld from the Court. Accused Chaina Ram & Chain Singh has received five injuries and accused-appellant Mangtu received six injuries wherefor cross cases were registered against the complainant party. The incident took place when the complainant wanted to again take possession over the disputed land and raise construction, but there was no evidence as to the fact that accused-appellants participated in the incident in furtherance of the common intention with a prior concert or meeting of mind. The distinction has to be made between the `common intention' and `common object'. While `common intention' denotes acting in concert by a pre-arranged plan implying a prior meeting of mind, the `common object' does not require prior meeting of mind or pre-concert. No such evidence of prior meeting of mind and pre-concert between the two accused has been proved. There were also cross fights, in which the injuries were received on both the sides. In these facts, each individual accused would be responsible for his individual act or individual injuries. In so far accused, Mangtu Ram is concerned, all the eye witnesses are consistent as to the allegation against him that he inflicted a lathi blow on the back of the deceased, which was a simple injury, therefore, his act cannot constitute an offence beyond Section 323 IPC. In so far accused, Mangtu Ram is concerned, all the eye witnesses are consistent as to the allegation against him that he inflicted a lathi blow on the back of the deceased, which was a simple injury, therefore, his act cannot constitute an offence beyond Section 323 IPC. However, the act of the accused-appellant-Chandan Singh, in the facts of the present case, also cannot be held to be a case of culpable homicide amounting to murder, which would fall in Exception-4 to Section 300 IPC as the incident has taken place without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and if the accused having received so many injuries had acted in a right of their private defence of person, the offence would also attract the provisions of clause second to Section 100 of IPC that an assault as may reasonably cause the apprehension in the mind of accused that grievous hurt will otherwise be the consequence of such assault and also in view of Section 103 of IPC whereof, accused has exercised their right of private defence of property. At the same time, accused apparently exceeded their right of private defence of person and property, which did not entitle them to go to the extent of causing so grievous injury as would have resulted in death of Ganpat. The offence of accusedappellant Chandan Singh, therefore, would not travel beyond Section 304 Part-I IPC. In the result, the appeal is partly allowed. The conviction of accused-appellant Mangtu Ram for offence u/s.302 read with Section 34 IPC is set aside and he is convicted for offence u/s.323 IPC and sentenced to the period for which he already remained in jail i.e. 1 year and 8 months. The conviction of accused-appellant Chandan Singh for offence u/s.302 IPC is set aside. Instead he is convicted for offence u/s.304 Part-I and sentenced to the period already undergone by him i.e. about 11 years and 8 months. Accused-Mangtu Ram is already on bail, his bail bonds are discharged. Accused Chandan is in jail and he be set at liberty forthwith, if not required to be detained in any other case. Instead he is convicted for offence u/s.304 Part-I and sentenced to the period already undergone by him i.e. about 11 years and 8 months. Accused-Mangtu Ram is already on bail, his bail bonds are discharged. Accused Chandan is in jail and he be set at liberty forthwith, if not required to be detained in any other case. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, the appellants are directed to forthwith furnish a personal bond in the sum of Rs.20,000 each and a surety bond in the like amount before the Deputy Registrar (Judl.) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave to Petition being filed against this judgment or on grant of leave, these appellants, on receipt of notice thereof, shall appear before the Supreme Court. A copy of this judgment be sent to Director General of Police for compliance.