JUDGMENT : OM PRAKASH-VII, J. 1. Present criminal appeal as well as connected criminal appeals have been preferred by appellants Ramdev, Sabharaj, Firatu, Shiv Murat, Suraju, Dasharath, Ram Kumar, Hitai, Nankoo and Sitaram against the judgment and order dated 22.10.2012 passed by Additional Sessions Judge/Special Judge (E.C. Act), Jaunpur in Sessions Trial No. 241 of 2005 (State of U.P. v. Ramdev and others) arising out of case crime No. 312 of 2004 under sections147, 148, 323/149, 325/149, 304/149 and 307/149 IPC, Police Station Sarai Khwaja, District Jaunpur whereby all the appellants have been convicted and sentenced for offence under section 147, IPC to undergo 1 year R.I. along with fine of Rs. 1000/- each and a default sentence of 2 months; under section 304/149, IPC to undergo 10 years R.I. along with fine of Rs. 10,000/- each and a default sentence of 1 year; under section 307/149, IPC to undergo 7 years R.I. along with fine of Rs. 7000/- each and a default sentence of 6 months; under section 325/149, IPC to undergo 3 years R.I. along with fine of Rs. 3000/- each and a default sentence of 3 months and under section 323/149, IPC to undergo 6 months along with fine of Rs. 500/- each and a default sentence of 15 days. Appellants Ramdev, Sabharaj, Suraju and Dasharath have also been convicted and sentenced for the offence under section 148, IPC to undergo 1½ years R.I. along with fine of Rs. 2000/- each and a default sentence of 2 months. All sentences were directed to run concurrently. 2. Since both the connected appeals arise out of same judgment and order, it were heard together and are being disposed of by this common judgment and order. 3. Prosecution story, in brief, as unfolded in written report (Ex. Ka. 1) is as follows: 4. Informant (P.W. 1) Mahaveer son of Late Jaikaran resident of village Hasanpur (Potriya), Police Station Sarai Khwaja, District Jaunpur moved written report (Ex. Ka.-1) dated 01.11.2004 at Police Station Sarai Khwaja mentioning therein that his neighbour Ramdev, who is fearless, influential and rich person, always try to usurp/grab the property of the informant. Ka. 1) is as follows: 4. Informant (P.W. 1) Mahaveer son of Late Jaikaran resident of village Hasanpur (Potriya), Police Station Sarai Khwaja, District Jaunpur moved written report (Ex. Ka.-1) dated 01.11.2004 at Police Station Sarai Khwaja mentioning therein that his neighbour Ramdev, who is fearless, influential and rich person, always try to usurp/grab the property of the informant. Incident is of 31.10.2004 at about 8:30 a.m. when Ramdev armed with gandasi, Sabharaj armed with banka, Nankoo armed with lathi bound with iron, Firatu and Sitaram armed with lathi, Suraju, Dasharath, Shiv Murat, and Hitai armed with kulhari and danda altogether with common intention reached at the clumping bamboos situate at the land of informant for cutting bamboo. On this act, informant and one Ram Aasrey objected them, to which Ramdev exhorted Suraju and Dasharathwa to cut bamboo with kulhari as they all are with them. He also hurled abuses and threatened with dire consequences. When the informant and Ram Aasrey tried to stop the accused persons, they again started hurling abuses and with the intention to kill, Ramdev assaulted Ram Aasrey on his head with gandasi and Nankoo dealt a lathi blow on the head of the informant. In the meantime, informant's son Rajdev rushed to the spot. With the intention to kill, accused Sabharaj caused injury to Rajdev on his head with banka and Firatu also wielded lathi on his head. As a result whereof, the son of the informant fell to the ground saying that now he will die, all of you should run away otherwise Ramdev and his companions will spare none. In the meanwhile, accused who were cutting bamboo and other accused, leaving the bamboo, having danda in their hands, ran towards them to kill. However, at that time several witnesses namely Hari Prasad, Baburam, Lalji, Gaya Prasad, Rajaram and Partabi Devi arrived there and tried to save the informant's side on which accused persons started assaulting them also. In the meantime, several villagers including Abdul Rasheed, Mithai Lal and Chandan reached at the place of occurrence and intervened and separated the two parties and thereby saved the informant's side from further assault. In the meantime, several villagers including Abdul Rasheed, Mithai Lal and Chandan reached at the place of occurrence and intervened and separated the two parties and thereby saved the informant's side from further assault. It is also mentioned in the written report that due to seriousness of injuries sustained by Raj Deo he was referred for better treatment to Sir Sunder Lal Hospital, B.H.U. Informant P.W.-1 has also annexed injury reports of Ram Asrey, Rajdev, Gaya Prasad, Babu Ram, Lal Ji and Mahabir along with referral card of deceased Raj Deo. 5. On the basis of written report (Ext. Ka-1) First Information Report (F.I.R.) (Ext. Ka-6) was registered at police station concerned on 1.11.2004 at 21:30 hrs. against the accused appellants for the offence under Sections 147, 148, 323, 324, 308, 504, 506, IPC. G.D. entry was also made on the same day mentioning the details as disclosed in written report (Ext. Ka-1). 6. Injured Babu Ram was medically examined at District Hospital, Jaunpur on 31.10.2004 at 1.50 p.m. and following injuries were found on his body: 1. Lacerated wound 2.5 cm x 0.5 cm x skin deep, 1 cm above left eye brow. 2. Lacerated wound 1 cm x 0.5 cm on left side of forehead, 5 cm above left eye brow. 3. Contusion 5 cm x 2 cm on back of rt. shoulder. 4. Abrasion 1 cm x 0.5 cm on dorsal aspect of the ring finger. 7. Injured Gaya Prasad was examined on 31.10.2004 itself at 1.10 p.m. at District Hospital, Jaunpur and following injuries were found on his body: 1. Lacerated wound 6 cm x 1.5 cm x skull deep on rt. side of head, 8 cm above rt. ear. K.U.O. and advised x-ray skull - A.P./lat. 2. Contusion 5 cm x 2 cm on rt. shoulder 4 cm below rt. shoulder blade. 3. Traumatic swelling 8 cm x 4 cm around injury No. 2. 4. Contusion 4 cm x 2 cm on rt. eye over upper eye lid. There is traumatic swelling (black eye) and the injuries were K.U.O. 8. Injured Lal Ji was examined on 31.10.2004 at 1.20 p.m. at District Hospital, Jaunpur and following injuries were found on his body: 1. Traumatic swelling 8 cm x 7 cm over rt. elbow joint on dorsal aspect. K.U.O. Advised x-ray rt. elbow joint. A.P. Lat. 2. There is traumatic swelling (black eye) and the injuries were K.U.O. 8. Injured Lal Ji was examined on 31.10.2004 at 1.20 p.m. at District Hospital, Jaunpur and following injuries were found on his body: 1. Traumatic swelling 8 cm x 7 cm over rt. elbow joint on dorsal aspect. K.U.O. Advised x-ray rt. elbow joint. A.P. Lat. 2. Abraded contusion 1 cm x 1 cm on ventral aspect of wrist joint. Traumatic swelling 4 cm x 3.5 cm around this injury. 3. C.O.P. on rt. shoulder. 9. Injured Hari Prasad was examined on 31.10.2004 at 1.35 p.m. at District Hospital, Jaunpur and following injuries were found on his body: 1. Lacerated wound 0.5 cm x 0.25 cm x muscle deep on dorsal aspect of left hand 2 cm away from proximal root of the middle finger. 2. Lacerated wound 0.5 cm x 0.5 cm x muscle deep, 1 cm proximal to injury No. 1. 3. Abraded traumatic swelling 2 cm x 1.5 cm on root of left index finger. K.U.O. Advised x-ray. 10. Injured Mahabir was examined on 31.10.2004 at 1.55 p.m. at District Hospital, Jaunpur and following injuries were found on his body: 1. Traumatic swelling 8 cm x 5 cm on rt. hand on dorsal aspect and the root of index and middle finger surrounding area. K.U.O. Advised x-ray rt. hand AP/Lat. 2. C.O.P. on rt. leg. 11. Injured Rajdev (deceased) was examined on 31.10.2004 at District Hospital concerned at 12.30 p.m. and following injuries were found on his person: 1. Lacerated wound 8 cm x 1.5 cm x skull deep on middle of head, 12 cm above left ear. 2. Incised wound 1 cm x 0.5 cm x skull deep, 1 cm lateral to injury No. 1. 3. C.O.P. on back side of chest. 12. Injured Ram Asrey was examined on 31.10.2004 at 12.05 p.m. at the District Hospital concerned and following injuries were found on his person: 1. Incised wound 8 cm x 1 cm x skull deep on front of forehead left side, 4 cm above left eye brow. 2. Contusion 10 cm x 2 cm on lateral aspect of the thigh, reddish in colour. 3. C.O.P. back of chest. 13. X-ray reports of Hari Prasad, injured is Ext. Ka-2; injured Ram Asrey is Ext. Ka-3 and injured Mahabir is Ext. Ka-4. 2. Contusion 10 cm x 2 cm on lateral aspect of the thigh, reddish in colour. 3. C.O.P. back of chest. 13. X-ray reports of Hari Prasad, injured is Ext. Ka-2; injured Ram Asrey is Ext. Ka-3 and injured Mahabir is Ext. Ka-4. In the x-ray report of Hari Prasad fracture of third metacarpal in left hand side is shown. The x-ray report of Ram Asrey shows fracture of frontal bone on left side scalp. X-ray report of Mahabir shows the crack fracture of proximal phalanx of right index finger. It also appears that deceased Rajdev was referred for better treatment to the Sir Sunderlal Hospital, B.H.U., Varanasi where he died on 3.11.2004 at 6.25 a.m. Information given by the hospital concerned to the local police is (Ext. Ka-6). Record also reveals that local police reached at the mortuary concerned and prepared the inquest report along with the other police papers (Exts. Ka-10 to 13). Dead body was kept in sealed cover and was dispatched along with relevant papers for post mortem. 14. Post-mortem on the dead body of Raj Dev was conducted on 3.11.2004 itself at 5.30 p.m.' He was about 38 years of age. Time of death is disclosed 6.25 p.m. on 3.11.2004 itself and was average muscular body. Rigor mortis was present all over body. Eyes and mouth were closed. Following ante-mortem injuries were found on his body: 1. Stitched wound 4 cm on the top of head 14 cm from eye. 15. In the opinion of doctor cause of death was coma due to head injuries. Post-mortem report is (Ext. Ka-5). 16. Investigating Officer visited the place of occurrence and prepared the site plan (Ext. Ka-8). Witnesses were also interrogated and after fulfilling entire formalities charge sheet (Ext. Ka-16) was filed against the appellants for the offence under Sections 147, 148, 323, 326, 325, 304, 504, 506, IPC which is (Ext. Ka.-16). Cognizance was taken by the concerned Magistrate and case being exclusively triable by the Sessions Judge was committed to the court of Sessions. 17. Accused appeared. Prosecution opened its case describing all the evidences collected by the Investigating Officer during investigation as well as proposed to be adduced against the appellants. Ka.-16). Cognizance was taken by the concerned Magistrate and case being exclusively triable by the Sessions Judge was committed to the court of Sessions. 17. Accused appeared. Prosecution opened its case describing all the evidences collected by the Investigating Officer during investigation as well as proposed to be adduced against the appellants. Trial Court also heard the learned counsel appearing for the appellants and framed charges for the offence under Sections 147, 304 read with Section 149, 307 read with Sections 149, 325 read with Sections 149, 323 read with Section 149, IPC against all the accused. Separate charge against appellants Ram Dev, Sabharaj, Suraju and Dashrath for the offence under Section 148, IPC was also framed. All the charges were read over to the accused to which they denied and pleading not guilty claimed their trial. 18. In order to prove its case, prosecution examined P.W.-1 Mahabir, informant; P.W.-2 Ram Asrey, an injured witness; P.W.-3 Dr. D.B. Singh, Radiologist; P.W.-4 Dr. M.P. Mishra, who has conducted post-mortem on the dead body of the deceased Rajdev; P.W.-5 S.I. Kedar Yadav, who has proved the chik FIR (Ext. Ka-6) and G.D. entry (Ext. Ka-7). He has also interrogated the witnesses and has also proved site plan (Ext. Ka.-8). He also proved G.D. entry (Ext. Ka-9) regarding conversion of the matter into offence under Section 304, IPC. P.W.-5 S.I. K.K. Singh, who has prepared inquest report and other police papers (Ext. Ka.-11) to (Ext. Ka-13); P.W.-7 Mata Prasad Singh, IInd Investigating Officer of the matter who has submitted charge sheet (Ext. Ka.-16); P.W.-8 Dr. S.K. Chaddha, who has medically examined the injured persons and has prepared the injury reports on 31.10.2004. 19. It appears that after completion of the prosecution evidence, statements of the accused appellants under Section 313, Cr.P.C. were recorded in which they denied the entire prosecution case and admitted the fact of enmity. They have specifically stated that facts mentioned in the FIR are false. Injury reports are forged and vague documents. Charge sheet was submitted on the basis of insufficient evidence. Witnesses have made false statement before the court. Prosecution started due to enmity. Almost similar statements have been made by all the accused persons and a written statement was also filed by them mentioning therein that clumping bamboos was belonging to the accused side. Charge sheet was submitted on the basis of insufficient evidence. Witnesses have made false statement before the court. Prosecution started due to enmity. Almost similar statements have been made by all the accused persons and a written statement was also filed by them mentioning therein that clumping bamboos was belonging to the accused side. They have specifically mentioned that during consolidation in C.H. Form No. 2 possession over the disputed bamboo Koth and the pond was shown of the ancestors of the accused side. Agricultural field adjacent to the disputed pond and bamboo Koth is also belonging to the appellants. Informant side had no concern with the clumping bamboos. They were illegally and forcibly trying to occupy the bamboo Koth and the pond. On the day of incident informant side came there to cut the bamboo. Dashrath, Phirhu, Sabharaj and Ram Deo when objected them then a scuffle started among them and in sudden fight both sides received injuries. Informant side were aggressor because they had come to cut the clumping bamboos. FIR in the present matter was lodged after consultation. It was also pleaded that appellants are innocent. They have not committed any offence. It is further mentioned that one N.C.R. No. 113 had also been lodged on part of the appellants side against the informant side on the day of incident. Dashrath and Sabharaj who have sustained injuries in the said incident were also medically examined. 20. In defence accused appellants have examined D.W-1 Prakash Chand, Chief Pharmacist, District Hospital, Jaunpur who has proved the injury reports of the appellants side as Ext. Kha-1, Ext. Kha-2 and Ext. Kha-3. D.W.-2 Shyam Sundar the then Constable Moharrir of Police Station Sarai Khawaja, who has proved N.C.R. No. 113 of 2004 lodged by accused side against the informant. D.W.-3 Dr. D.P. Yadav who has medically examined the injured persons belonging to the appellants side and has prepared the injury report Ext. Kha-1, Kha-2 and Kha-3. 21. Trial court after hearing the parties, going through the entire record vide impugned judgment and order convicted and sentenced the accused appellants as above. Hence feeling aggrieved with the said judgment and order dated 22.10.2012 present appeals have been filed by them. 22. Heard Sri. Apul Mishra, learned counsel for the appellants, learned A.G.A. and Sri. Ali Hasan, learned counsel for the informant. 23. Hence feeling aggrieved with the said judgment and order dated 22.10.2012 present appeals have been filed by them. 22. Heard Sri. Apul Mishra, learned counsel for the appellants, learned A.G.A. and Sri. Ali Hasan, learned counsel for the informant. 23. Submission of the learned counsel for the appellants is that appellants are innocent and the trial court has wrongly convicted and sentenced them in the present matter. Bamboo Koth was belonging to the appellants and the informant's side were cutting the same. When appellants objected they caused injuries to the appellants' side. Appellants also in the right of private defence of property and person caused injuries to the informant side as informant side were aggressor in the matter. Prosecution witnesses themselves have admitted before the court on oath that bamboo was belonging to Ram Dev. FIR was lodged belatedly but no plausible explanation has been given. There are major contradictions in the statement of prosecution witnesses on material points. N.C.R. was lodged on the part of the appellants on the day of the incident itself, whereas the present FIR was lodged on the next day. Version taken by the appellants is correct. Referring to the entire evidence it is also argued that it is a case of sudden fight. Therefore, findings recorded by the trial court are perverse. It is not clear as to who caused injuries to whom. In cases of sudden fight/free fight if it is not clear who caused injuries to whom and the accused have not taken undue advantage they cannot be held guilty and punished. Medical evidence does not support the oral version. Referring to the injuries of the deceased Rajdev it is also argued that only one head injury was found on the body of the deceased, therefore, also offence under Section 304, IPC is not attracted in the present matter. Prosecution was not able to prove its case beyond reasonable doubt. It is further argued that prosecution has suppressed origin and genesis of the incident, therefore, on this ground also appellants are liable to be acquitted. 24. Per contra, learned A.G.A. as well as learned counsel for the informant argued that no evidence was adduced by the appellants in their defence during trial to show that disputed clumping bamboos was belonging to the appellants themselves. C.H. form No. 2 was filed at later stage. It cannot be considered in the appeal. 24. Per contra, learned A.G.A. as well as learned counsel for the informant argued that no evidence was adduced by the appellants in their defence during trial to show that disputed clumping bamboos was belonging to the appellants themselves. C.H. form No. 2 was filed at later stage. It cannot be considered in the appeal. Appellants themselves were aggressor. P.W.-1 and P.W.-2 both have received injuries. Rajdev died during treatment due to injuries sustained in the incident. Accused appellants had gathered at the door of Ram Deo forming an unlawful assembly. Therefore, trial court has rightly convicted and sentenced the appellants in the present matter. Since injuries said to have been sustained by the appellants are simple in nature, therefore, non-explanation of those injuries will not destroy/demolish the prosecution evidence. Referring to the statement of witnesses it is also argued that specific role has been assigned to each and every accused by the witnesses. Appellants were aggressor, they were cutting the bamboo, when informant side objected they started beating to the informant side. It is also argued that trial court's finding that appellants are aggressor is based on correct appreciation of fact and evidence. An aggressor cannot take plea of self defence. There is no illegality, infirmity or perversity in the impugned order. 25. I have considered the rival submissions made by the learned counsel for the parties and perused the entire record carefully. 26. First and foremost question to be considered is whether FIR lodged in the present matter on 1.11.2004 is belated document and prosecution has suppressed the material facts in the FIR. 27. In this matter, as is evident from the record, offence is said to have been committed on 31.10.2004 at 8.30 a.m. Place of incident is village Hasanpur Podaria. Distance between place of occurrence and the police station is 7 kms. FIR is lodged on 1.11.2004 at 21.30 hrs. Informant P.W.-1 Mahabir has specifically mentioned in the written report (Ext. Ka-1) that injured were hospitalized in the hospital and deceased Raj Deo was referred for better treatment to S.S. Hospital, B.H.U. Written report (Ext. Ka-1) further shows that injury reports of injured Ram Asrey, Rajdev, Gaya Prasad, Baburam, Hari Prasad, Lal Ji and Mahabir have also been annexed with it. It means before moving the written report (Ext. Ka-1) all the injured were medically examined. Ka-1) further shows that injury reports of injured Ram Asrey, Rajdev, Gaya Prasad, Baburam, Hari Prasad, Lal Ji and Mahabir have also been annexed with it. It means before moving the written report (Ext. Ka-1) all the injured were medically examined. Injury reports available on record also reveals that injured have been medically examined on 31.10.2004 itself. F.I.R. is lodged on next date. In cross version N.C.R. was lodged on the day of incident. Finding of the Trial Court regarding delay in lodging of the F.I.R. is that since priority was given by the informant and his family members for medical treatment to the injured, therefore, non-lodging of the F.I.R. on the very day of incident will not create any doubt about the truthfulness and genuineness of the FIR. If the findings of the Trial Court on this issue is compared with the facts and evidence available in the present matter, although N.C.R. on behalf of accused appellants side was lodged on the very day of incident but informant has clearly explained the reason in the written report (Ext. Ka-1) about the delay occurred in lodging of the F.I.R. It has also come in the evidence that on the day of incident informant side had gone to the Police Station but they were sent for treatment, therefore, FIR could not be lodged on the very day itself. If for the sake of argument this fact is taken into consideration that there is delay in lodging of the FIR then also presence of both the parties at the place of occurrence on the date and time of incident have been admitted to them. Thus merely on the basis of delay in lodging of the FIR, genuineness of the FIR cannot be doubted, particularly, where there is cross version. Several persons belonging to informant side have received injuries and one of them namely Raj Deo died during treatment on 3.11.2004 due to injuries sustained in the same incident. Thus other issues raised on behalf of the appellants have to be scrutinised because purpose of lodging of the FIR is only to set the law in motion. Although prompt FIR assures the truthfulness of the allegations but same cannot be taken as an universal truth. Finding of the Trial Court on this issue need no interference and it is based on correct appreciation of facts and evidence. 28. Although prompt FIR assures the truthfulness of the allegations but same cannot be taken as an universal truth. Finding of the Trial Court on this issue need no interference and it is based on correct appreciation of facts and evidence. 28. As far as motive is concerned both sides in their version have stated that there was dispute regarding ownership of clumping bamboos. In the N.C.R. it is mentioned that clumping bamboos was belonging to the appellants and informant side were cutting the same. Informant's case is that appellants gathered at the door of the accused Ram Deo and forming an unlawful assembly proceeded to the place of occurrence to cut the bamboo. When they were objected they caused injuries to the informant side. If the version taken by both the parties are taken together cumulatively it clearly emerges that dispute between the parties was regarding ownership of bamboo koth and both sides had gathered at the place of occurrence according to their version. Thus motive stated by the prosecution in the present matter cannot be taken to be false. Finding of the Trial Court on this issue need no interference and the same is also based on correct appreciation of fact and evidence. 29. So far medical evidence is concerned, seven persons are said to have received injuries in this incident on the part of the informant side. Rajdev, one of them died during treatment in the hospital at Varanasi on 3.11.2004. Although injured were firstly taken to the hospital concerned but perusal of the statement of doctor examined in the matter reveals that injuries found on the body of some injured were grievous in nature. If the injuries found on the body of the deceased and other injured belonging to informant side are compared with the injuries said to have been sustained by the persons belonging to the appellants side it emerges that injuries found on the body of injured/deceased belonging to informant side were serious/grievous in nature and more in number than the injuries sustained by the appellants side. It is pertinent to mention here that although informant has not explained the injuries said to have been sustained by the appellants in the present matter at initial stage yet keeping in view the nature of injuries found on the body of the injured belonging to appellants side, court is of the opinion that there was no necessity to explain the injuries found on the body of persons belonging to the appellants side. If the time of injuries shown in the injury reports belonging to both sides are compared it also appears that injuries found on the persons belonging to both sides have occurred at the same time. Therefore, in the present matter, on close scrutiny of entire evidence, I am of the view that medical evidence fully support the oral version. There is no conflict between the oral and medical evidence. Merely non-explaining of the injuries said to have been sustained by the appellants side which are simple in nature, the prosecution case cannot be disbelieved. It is clarified at this stage that place of occurrence is not disputed to either of the parties. Thus, only question remains in the present matter that which party was aggressor in the present matter and whether right of private defence was available to the appellants side or not. 30. In this matter both sides claimed their possession and ownership over the clumping bamboos and claimed that rival party had come at the place of occurrence on the date and time discussed hereinabove to get the bamboo and due to that reason present incident took place. It is also evident from the record that none of the parties have adduced any concrete or clinching evidence during trial to establish their exclusive possession over the clumping bamboos and both sides have received injuries in the incident itself. N.C.R. was lodged on behalf of the appellants side on the day of incident itself, FIR was lodged on behalf of the informants side on the next day of the incident. Injuries said to have been sustained by the appellants side is less in number and are not grievous in nature in comparison to the number of injuries sustained by the informant side. Injuries said to have been sustained by the appellants side is less in number and are not grievous in nature in comparison to the number of injuries sustained by the informant side. Thus from the facts and circumstances of the case and evidence adduced by both the parties it emerges that both parties had come at the place of occurrence to show their possession over the clumping bamboo after making preparation and they started pitched battle for possession over the said clumping bamboos. It is pertinent to mention here that although defence side has placed reliance on Form No. CH-2 but it was filed at later stage, therefore, same cannot be considered as piece of evidence to show exclusive possession of appellants. Since both the parties started beating each other, it is a case of pitched battle for possession over the clumping bamboos, thus, I find it necessary to quote the settled legal position to determine the issue between the parties: In Lakshmi Singh v. State of Bihar (1976) 4 SCC 394 : ( AIR 1976 SC 2263 ) Court has held that where the prosecution fails to explain 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. It has also been held that omission on the part of the prosecution to explain 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 version which competes in probability with that of the prosecution. It further held that there may be cases where non-explanation of injuries by prosecution may not affect the prosecution case. This principle at this stage would apply to cases where the injuries sustained by the accused are minor and superficial. In Waman v. State of Maharashtra (2011) 7 SCC 295 : ( AIR 2011 SC 3327 ), Court has also held that ordinarily the prosecution is not obliged to explain each and every injury on an accused even though the injuries might have been caused in the course of occurrence, if the injuries are minor in nature. In Waman v. State of Maharashtra (2011) 7 SCC 295 : ( AIR 2011 SC 3327 ), Court has also held that ordinarily the prosecution is not obliged to explain each and every 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 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. In Raghubir Singh v. State of Rajasthan (2011) 12 SCC 235 : (2011 AIR SCW 5678), in para 16 Court has held as follows: "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." 31. If the settled position of law, as discussed herein above, is analysed with the fact and evidence of the present matter in consonance with the finding of the Trial Court, this Court is of the view that incident took place at the spur of moment when both the parties had gathered at the place of occurrence to show their possession over clumping bamboo after making preparation armed with weapon assigned to them and started beating each other. In that situation the finding of the Trial Court that appellants were aggressor, in my considered view, is not correct position of the fact and evidence but it is the result of misappreciation of the same. Injuries sustained by the appellant side itself reflect that informant side was also armed with the weapons. Time of injuries sustained by both the parties are also same. Injuries sustained by the appellant side itself reflect that informant side was also armed with the weapons. Time of injuries sustained by both the parties are also same. Thus it is a clear case of free fight between the parties. If such is the position, each accused would be liable for his individual act. Finding of the Trial Court to hold guilty to the appellants taking recourse to the provisions of Section 149, IPC is not based on correct position of law. Thus, in the present matter it is to be seen what actual role was played by each accused appellants. 32. In the written report (Ext. Ka-1) it has been mentioned by the informant that on the date, time and place of the occurrence appellants namely Ram Dev armed with gandasa; Sabharaj armed with banka; Nankoo armed with lathi; Phirtu armed with lathi; Sita Ram armed with lathi; Suraju, Dashrath, Ram Kumar, Shiv Murat and Hitai armed with axe and danda came there forming an unlawful assembly to cut the bamboo. Informant Ram Asrey belonging to informant side objected them then accused appellant Ram Dev exhorted other co-accused to cut the bamboos. When informant and Ram Asrey reached at the clumping bamboos appellant Ram Dev caused injuries with the gandasa on the head of Ram Asrey; appellant Sabharaj caused banka injuries on the head of Rajdev and Phirtu caused injuries to Raj Dev with lathi and Nankoo caused lathi blow to Mahabir. Thus Ext. Ka-1 shows no specific role to other appellants except Ram Dev, Sabharaj and Nankoo and Phirtu. 33. Two fact witnesses have been examined in the matter. P.W.-1 Mahabir, informant has also specified the role of appellant Ram Dev for causing injuries with the weapon "Gandasa" to injured Ram Asrey; Nankoo for causing injury with the weapon lathi to Mahabir and Sabha Raj for causing injury with the weapon banka to deceased Raj Dev. Appellant Phirtu is also assigned role for causing injury with the weapon lathi to deceased Raj Dev. This witness did not specify the role of other accused appellants. Only assertion is that they also caused marpit to the informant side. It is not clear from his statement except to Ram Dev, Nankoo, Sabha Raj and Phirtu which of the other accused caused injury to which injured. This witness did not specify the role of other accused appellants. Only assertion is that they also caused marpit to the informant side. It is not clear from his statement except to Ram Dev, Nankoo, Sabha Raj and Phirtu which of the other accused caused injury to which injured. Similar is the position in the statement of P.W.-2 Ram Asrey who is also an injured witness. If the medical evidence is taken into consideration in the present matter injured Ram Asrey (P.W.-2) has received one incised wound skull deep on front of forehead left side 4 cm above left eye brow. Another injury sustained by P.W.-2 is contusion. Raj Dev, deceased, as per injury report received one lacerated wound skull deep on middle of head 12 cm above left ear. Second injury is incised wound, skull deep 1 cm lateral to the injury No. 1. Cause of death shown in the post-mortem report is the head injury. Injury report (Ext. Ka-21) regarding injured Mahabir, P.W.-1 also reveals one traumatic swelling. 34. If the injuries sustained by Ram Asrey, Mahabir and Raj Dev are compared with the role assigned to them in the statement made by P.W.-1 and P.W.-2, charge for the offence under Section 304, IPC clearly attract against the appellant Sabha Raj and Phirtu as they caused injuries to deceased Raj Dev and due to injuries sustained by him he died during treatment. As far as role assigned to the appellant Ram Dev is concerned keeping in view the settled principles of law appellant Ram Dev could only be held guilty in this matter for the offence under Section 307, IPC for his individual act. Appellant Nankoo has caused injury to appellant Mahabir. He could only be convicted and sentenced in this matter for his individual act for the offence under Section 325, IPC. Since role of the other accused appellants have not been specified, it is not clear who caused injuries to whom, therefore, keeping in view the law discussed hereinabove rest of the appellants namely Shiv Murat, Sita Ram, Suraju, Dashrath, Ram Kumar and Hitai could not be held guilty in the present matter taking recourse to the provisions of Section 149, IPC because it is a case of pitched battle, both sides started beating each other due to dispute between them regarding cutting of bamboo. Thus conviction and sentence imposed upon the appellants Shiv Murat, Sita Ram, Suraju, Dashrath, Ram Kumar and Hitai in the present matter is not sustainable and for the reasons discussed hereinabove they are liable to be acquitted from all the charges framed against them in which they have been convicted and sentenced. Conviction and sentence of the appellants Ram Dev is also sustainable only for the offence under Section 307, IPC. He is also liable to be acquitted for the other charges framed against him. He could also not be convicted and sentenced for the offence under Sections 147, 148, 304 read with Sections 149, 325 read with Section 149, IPC, 323 read with Section 149 IPC and he is also liable to be acquitted for the aforesaid charges. Similarly appellant Nankoo could be held guilty in the present matter only for the offence under Section 325, IPC for his individual act. Other charges/offences levelled against him in which he has been convicted and sentenced he is liable to be acquitted. Appellants Sabha Raj and Phirthu both have caused injuries to deceased Raj Dev. Injuries found on the body of the deceased Raj Dev could be caused by the weapon banka and lathi assigned to the appellants Sabha Raj and Phirtu. Cause of death of deceased Raj Dev is head injuries. Thus appellants Sabha Raj and Phirtu could be held guilty for the offence under Section 304, IPC for their individual act and for other offences/charges said to have been proved against them they could not be held guilty and they are entitled to be acquitted on the basis of law discussed hereinabove. 35. So far as sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. 36. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: (Sumer Singh v. Surajbhan Singh and others (2014) 7 SCC 323 : ( AIR 2014 SC 2840 ); Sham Sunder v. Puran, (1990) 4 SCC 731 : ( AIR 1991 SC 8 ); State of M.P. v. Saleem (2005) 5 SCC 554 : ( AIR 2005 SC 3996 ); Ravji v. State of Rajasthan (1996) 2 SCC 175 ) : ( AIR 1996 SC 787 ). 37. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence. 38. Hence, applying the principles laid down by the Apex Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, Court finds that punishment imposed upon accused appellants Ram Deo, Sabha Raj, Phirtu and Nankoo for the respective charges proved against them by the Trial Court in the impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the matter on the point of punishment imposed upon the aforesaid appellants. 39. Thus on the basis of aforesaid discussion appeal having some merit is liable to be partly allowed. 39. Thus on the basis of aforesaid discussion appeal having some merit is liable to be partly allowed. Appellants Shiv Murat, Sita Ram, Suraju, Dashrath, Ram Kumar and Hitai are liable to be acquitted from all the charges framed against them as they are not found guilty for committing the offence under Sections 147, 148, 325/149, 323/149, 304/149, and 307/149, IPC. 40. Conviction and sentence of appellants Sabha Raj and Phirtu for the offence under Section 304, IPC on the basis of their individual act, appellant Ram Dev for the offence/charges under Section 307, IPC and also accused appellant Nankoo for the offence under Section 325, IPC is liable to be affirmed. Appellants Sabha Raj and Phirtu are liable to be acquitted for the offence/charges under Sections 147, 148, 323/149, 325/149, 307/149, IPC. Similarly accused Ram Dev is liable to be acquitted for the offence/charges under Sections 147, 148, 323/149, 325/149, 304/149 IPC, appellant Nankoo is entitled to be acquitted for the offence under Section 147, 148, 323,/149, 304/149 and 307/149, IPC. 41. Thus the appeal is partly allowed. 42. Appellants Shiv Murat, Sita Ram, Suraju, Dashradi, Ram Kumar and Hitai are acquitted from all the charges framed against them as they are not found guilty for committing the offence under Sections 147, 148, 323/149, 325/149, 304/149, and 307/149, IPC. They are on bail. They need not to surrender. Their bail bonds are cancelled and sureties are discharged from their liability. 43. Conviction and sentence of appellants Sabha Raj and Phirtu for the offence/charges under Section 304, IPC on the basis of their individual act, appellant Ram Dev for the offence under Section 307, IPC and also accused appellant Nankoo for the offence under Section 325, IPC is affirmed. Appellants Sabha Raj and Phirtu are acquitted for the offence under Sections 147, 148, 323/149, 325/149, 307/149, IPC. Similarly accused Ram Dev is acquitted for the offence under Sections 147, 148, 323/149, 325/149, 304/149, IPC. Appellant Nankoo is acquitted for the offence under Sections 147, 148, 323,/149, 304/149 and 307/149, IPC. 44. Appellants Sabha Raj, Phirtu, Nankoo and Ram Dev, if are on bail and have not served out the entire sentence imposed upon them, they are directed to surrender forthwith before the court below to serve out the remaining sentence. 45. Appellant Nankoo is acquitted for the offence under Sections 147, 148, 323,/149, 304/149 and 307/149, IPC. 44. Appellants Sabha Raj, Phirtu, Nankoo and Ram Dev, if are on bail and have not served out the entire sentence imposed upon them, they are directed to surrender forthwith before the court below to serve out the remaining sentence. 45. Keeping in view provisions of Section 437-A, Cr.P.C., appellants namely Shiv Murat, Sita Ram, Suraju, Dashrath, Ram Kumar and Hitai are directed to forthwith furnish a personal bond of the sum of Rs. fifty thousand and two reliable sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellants namely Shiv Murat, Sita Ram, Suraju, Dashrath, Ram Kumar and Hitai on receipt of notice thereof shall appear before Hon'ble Supreme Court. 46. Copy of this order along with lower court record be sent to court concerned forthwith for compliance. Compliance report be also sent to this Court. 47. Let a copy of this order be placed on record of connected Criminal Appeal No. 4357 of 2012.