JUDGMENT B.K. Sharma, J.
1. This is an appeal against the judgment and order dated 28-11-1980 passed by Sri J. P. Singh, the then Vth Addl. Sessions Judge, Allahabad in S.T. No. 270 of 1978 (State v. Bachchan Singh and Anr.), whereby he convicted Bharat Lal Tewari accused-appellant of the offence under Section 302, IPC and Bachchan Singh accused-appellant of the offence under Sections 302/109, I.P.C. and sentenced each one of them to undergo imprisonment for life.
2. The deceased in the present case is Suresh Chandra Yadav. The informant in this case is Desh Raj Yadav, father of Suresh Chandra Yadav, deceased; Bachchan Singh accused-appellant was editor of a local newspaper 'Deshdoot' and Bharat Lal accused-appellant was an employee in the same newspaper. Bhagauti Prasad Singh co-accused was the Sarhu of Bharat Lal Tewari accused-appellant (husband of his wife's sister i.e. their wives were real sisters inter se).
3. In House No. 51, Colonelganj, Allahabad, there were several portions, Shitala Prasad Asthana (PW 1), S/o. Ram Govind Lal, was living in a portion of the said house. Another portion belonged to his father Ram Govind Lal. One portion of the said house was in possession of Bhagauti Prasad Singh co-accused. Bachchan Singh, accused-appellant, started living with Bhagauti Prasad Singh co-accused, in his portion. Ram Govind Lal, father of Shitla Prasad, died 5 or 6 years before this occurrence.
4. The case of the prosecution as narrated by Shitla Prasad (PW 1) was that after death of Ram Govind Lal, he (Shitla Prasad) occupied his portion also and started living therein, Bachchan Singh accused-appellant obtained allotment of the portion of Ram Govind Lal and forcibly entered into possession of the same on 7-3-75 and threw away the household goods of Shitla Prasad from there. When Shitla Prasad came back at his house at 7 p.m. he found unlawful possession of Bachchan Lal Tewari accused-appellant. On the next day, i.e. 8-3-75 at about 8 to 8.30 a.m. he (Shitla Prasad) approached Desh Raj Yadav (PW 3), his son Suresh Chandra Yadav (present deceased), Masuriya Deen Yadav (PW 2) and others, thereupon all these persons collected and came at his house at about 10 a.m. and they were shown the illicit act committed by the defence side. When Bachchan Singh accused-appellant asked them as to why they had come, Suresh Chandra Yadav deceased told them 'AAP LOG JYADTI KARTE HAIN AUR YEH BHI RAHTE HA1N KI YAHAN KYON AYE HAI' whereupon Bachchan Singh accused-appellant and Bhagauti Prasad Singh co-accused challenged him and exhorted Bharat Lal Tewari accused-appellant to commit his murder. Thereupon, Bharat Lal Tewari accused-appellant took out his pistol and fired a shot at Suresh Chandra Yadav deceased, which struck on his right side abdomen, due to which he fell down on the ground, after which Bharat Lal accused-appellant ran towards the house of Bhagauti Prasad Singh co-accused and then he (Bharat Lal Tewari accused-appellant) fired another shot, which did not strike any one then he fired a third shot which struck on the right hand of Bachchan Singh accused-appellant. When Bharat Lal Tewari accused-appellant was running towards the door of Bhagauti Prasad Singh co-accused the persons of the Mohalla caught hold of him and snatched the pistol from him. At that time the women of the house of Bhagauti Prasad Singh co-accused and Bachchan Singh accused-appellant tried to get Bharat Lal Tewari accused-appellant released. Thereupon the persons of the locality beat Bharat Lal Tewari accused-appellant and also beat Bachchan Singh accused-appellant and Bhagauti Prasad Singh co-accused because they were saving Bharat Lal Tewari accused-appellant.
5. The prosecution story further was that Desh Raj Yadav (PW 3) took the injured Suresh Chandra Yadav to Swaroop Rani Hospital and one person handed over the pistol snatched from Bharat Lal Tewari accused-appellant at the spot to Baba Ram Adhar Yadav, who was the real brother of Desh Raj (PW 3) who had also come to the spot.
6. The deceased Suresh Chandra Yadav was admitted to the said Hospital in the Emergency ward and he was medically examined by Dr. S. S. Diwan (PW 8) on the same day at 11 a.m. Desh Raj Yadav (PW 3) then scribed the written F.I.R. of the occurrence at the Hospital and then lodged it at Colonelganj, Allahabad police station, on the basis of which case No. 269-A of 1975 was registered under Sections 307/114, I.P.C. against the present accused-appellants and Bhagauti Prasad Singh co-accused.
7. The medical examination of Suresh Chandra Yadav deceased revealed the following injuries:
Gun shot wound I cm in diameter on left side of abdomen 21/2" below the tip of 9th rib, 3" lateral and above the umbilicus, margins inverted, margin around wound blackened-wound of entrance. Wound of exit 3" above 2" posterior to greater trochanter, 1.5 cm in diameter on right of gluteal region, margin, everted, bleeding.
8. Suresh Chandra Yadav injured, however, died in the Hospital at 3.25 p.m. the same day. Thereupon the case was altered to one under Section 302, I.P.C. After the inquest proceedings were taken the post-mortem on the dead body of the deceased was performed by Dr. H. S. Tewari (PW 4) on 9-3-1975 at 10.45 a.m. The postmortem revealed the following ante-mortem injuries.
1. A stitched wound on the left side abdomen longitudinal in direction 9" in length having stitches 1" away from midline.
2. Firearm wound I cm in diameter on left side of abdomen 21/2" below the tip of 9th rib 3" lateral and umbilicus margins inverted and blackened (wound of entry).
3. Wound of exit 1.5 cm in diameter on (R) gluteal region 3" above and 2" posterior to greater trochanter, margins everted.
10. From the side of defence, the cross F.I.R. was lodged by Bhagauti Prasad Singh co-accused on 8-3-75 at 11 a.m. at the same police station, on the basis of which Crime Case No. 269 of 1975 was registered at the police station for the offences under Sections 147, 148, 149, 307, 323, 452 and 337, I.P.C. against Desh Raj (present informant) (P.W. 3), Kullu, Ram Khelawar, Ramesh, Suresh Chandra Yadav (present deceased), Dinesh, Lallan and some unknown persons.
11. From the side of defence, there were as many as six injured.
12. Bharat Lal Tewari accused-appellant injured was medially examined by Dr. H. S. Tiwari (PW 4) on 8-3-75 at 11.45 a.m. He found the following injuries on his person.
1. Lacerated wound 2" x 1/4" scalp deep on the top of head.
2. Lacerated wound 3/4" x 1/4" x scalp deep R. side head, 1.1/2" in front of inj. No. 1.
3. Lacerated wound 1.3/4" x 1/2" x scalp deep 1.1/2" in front of inj. No. 2.,
4. Lacerated wound 1/2 x 1/4" muscle deep on left side forehead 1/4" above L. eyebrow.
5. Contusion 4" x l' 1/2" on L. upper arm from L. shoulder joint downwards.
6. Contusion 6" x 1.1/8".on L. forearm posteriorly 5" below L, elbow joint.
7. Abraded contusion 2" x 1/2" on R side chest 1" below R clavicle.
8. Contusion 2" x 1/2" on the top of R. shoulder.
9. Lacerated wound 1/4" x 1/4" on R ring finger in middle.
10. Trauamatic swelling 5" x 5" on the front R leg 2" above R ankle with fracture of underlying bones.
11. Abrasion 2" x 1/4" on the medial aspect of L 1/2" above medial malleolus.
12. Abrasion 1/2" x 1/4" in front of left leg 4" above L ankle.
13. Contusion 4" x 3" on left side back 2" below left shoulder.
14. Contusion 2" x 1" on the back 3" below the spine of 7th clavicle verteb.
Inj. Nos. 1 to 4 kept U. P. subject to X-ray.
Inj. No. 10 grievous adv. X-ray, others simple caused by blunt weapon, duration fresh.
13. Lallan Singh injured was medially examined by the same doctor on the same date at 12.45 p.m. The doctor found the following injuries on his person :
1. Contusion 2" x 1/2" on posterior aspect of (left) forearm 21/2" below left elbow.
2. Abraded contusion, 1" x 1/2" on post aspect left forearm 11/2" below injury No. 1.
3. C/o pain in left little finger and right thumb.
14. All injuries simple caused by blunt object. Duration : Fresh.
15. Bachchan Singh accused-appellant injured was also examined by the same doctor on the same date at 12.15 p.m. The doctor found the following injuries on his person.
1. Firearm wound 1/10" x 1/10" margin lacerated inverted on the dorsum of right hand lateral side 1.1/2" below right wrist joint (wound of) fresh bleeding. No blackening charring present.
2. Lacerated wound 1/2" x 1/4" interior aspect of right hand, medial side overlying the wrist joint, margins irregular, everted (wound of exit).
3. Lacerated wound l1/2" x 1/4" x muscle deep on the face, 1" below the lower lip in the midline.
4. Abraded contusion with traumatic swelling, 1" in diameter on the left side forehead. 2" above left eye-brow.
5. Abrasion, 1" x 1" on the right side of foreheard 1/2" above right eye-brow.
6. Lacerated wound, 11/2" x 1-W x scalp deep on left ear.
7. Lacerated wound, 1" x 1/4" x scalp deep 1/4" above injury No. 6.
8. Abrasion, 1" x 1/4" on the left forearm posterior aspect, 31/2" below left elbow.
9. Abrasion 11/4" x 1/4" on the lateral aspect of left palm. Injuries Nos. 1,2,6 and 7 kept U.O. subject to X-ray, others simple inj. Nos. 1 and 2 caused by firearms, others by blunt object. Duration fresh.
Smt. Savitri Singh injured was also medically examined by the same doctor on the same date at 12.55 p.m. The doctor found the following injuries on his person.
1. Lacerated wound 1/2" x 1/4" x skin deep on right side chest overlying right clavicle 1" outer to medial end of right clavicle.
2. Abrasion 1" x 1/4" on the right forearm posteriorly 11/4 below right elbow.
3. C/o pain right side chest.
All injuries simple caused by blunt object. Duration : Fresh.
16. Smt. Gayatri injured was also medically examined by the same doctor on the same date at 1.15 p.m. He found the following injuries on his person.
Lacerated wound 1/2" x 1/4" x skin deep on (right) side face 11/2" anterior to right traque.
Simple caused by blunt object. Duration : Fresh.
17. Bhagauti Prasad Singh injured (co-accused) was also medically examined by the same doctor on the same day at 3.30 p.m. The doctor found the following injuries on his person :
1. Lacerated wound 1/2" x 1/4" scalp deep on the top of head.
2. Contusion 1" x 1/4" on the top of L. shoulder.
3. Abrasion 2" x 1/4" on left forearm posterior aspect 2" above left wrist.
4. Lacerated wound 1/4" x 1/4" on the top of left side middle toe.
5. C/o pain in back R- side.
All injuries simple caused by blunt object.
Duration : Recent.
18. It is also noticed that a case under Section 25 Arms Act was also registered against Bharat Lal Tewari accused-appellant, in respect of which investigation was done separately, and necessary sanction is said to have been obtained.
19. At the trial, the prosecution examined three eye-witnesses, namely Shitala Prasad Asthana (PW 1), Masuriya Deen Yadav (PW 2) and Desh Raj Yadav (PW 3). Rest of the evidence led at the trial was formal in nature.
20. Both the accused-appellants set up their counter-version of the occurrence and got their injury reports and the G. D. entry made about the registration of the cross case proved in defence.
21. The counter version taken up by Bachchan Singh accused-appellant in his statement recorded under Section 313, Cr. P. C. was that at the time of occurrence Desh Raj Yadav (PW 3), Masuriya Deen Yadav (PW 2), Suresh Chandra Yadav (present deceased) and others had entered in his house and they had started beating him with Lathi-Danda and revolver and then entered in the portion occupied by his Sarhu Bhagauti Prasad Singh (husband of his wife's sister) and started beating him (Bachchan Singh), his wife, Bhagauti Prasad Singh (present co-accused) and his wife as also his younger brother Bharat Lal Tewari (present accused-appellant) and that some body out of the assailants fired with a Tamancha. which struck him and that the assailants had run away on the coming of the police.
22. The claim of Bharat Lal Tewari accused-appellant was that he often used to visit Bachchan Singh accused-appellant at his house, that at the time of occurrence Desh Raj Yadav (PW 3) and others entered into the house of Bachchan Singh accused-appellant and started doing Marpit and he was also beaten, as a result of which his leg was fractured and he became unconscious and when he regained his consciousness he was in the Hospital.
23. At the trial the learned Sessions Judge believed the version of the prosecution and rejected the defence version and consequently held that the accused-appellants were the initial aggressors and so Bharat Lal Tewari accused-appellant was liable to be held guilty for the offence under Section 302, I.P.C. and Bachchan Singh accused-appellant was liable to be held guilty for the offence under Section 302, I.P.C. and Bachchan Singh accused-appellant was liable to be held guilty for the offence under Sections 302/109, I.P.C. and accordingly he convicted the accused-appellants, namely Bharat Lal .Tewari, accused-appellant, and Bachchan Singh accused-appellant, and sentenced them as aforesaid,
24. Bharat Lal Tewari accused-appellant was also tried at the trial for the offence under Section 25 of the Arms Act in respect of the weapon which was recovered from him by the witnesses. However, the learned Sessions Judge acquitted him of the offence under Section 25 of the Arms Act for want of proof of sanction, and the said acquittal has not been challenged by the prosecution by way of filing a Govt. Appeal.
25. We have heard the learned counsel for the accused-appellants and also the learned Addl. Govt. Advocate. This appeal must be allowed. From the prosecution case as taken in the F.I.R. and also from the ocular testimony led at the trial, it is manifestly clear that Bachchan Singh accused-appellant had obtained an allotment order in respect of the portion in which Ram Govind Lal, father of Shitla Prasad Asthana (PW 1), used to live in his life time and entered into possession of the same on 7-3-75 i.e. one day prior to the present occurrence.
26. It has been stated by Shitla Prasad (PW 1) himself in his testimony that when he came to his house in the evening on that date at 7 p.m. he saw illegal possession and so the act of taking possession by Bachchan Singh accused-appellant in pursuance of the allotment order obtained in his favour was complete. He also admitted that he did not go to the police station to lodge any F.I.R. about this taking of possession forcibly. From the ocular evidence led by the prosecution itself it is equally evident that Shitla Prasad Asthana (PW 1), aggrieved party, collected a number of persons including Masuriya Deen Yadav (PW 2), Desh Ram Yadav (PW 2) and also his son Suresh Chandra Yadav (the present deceased) on the next day and went to the campus of the house and there protested to Bachchan Singh accused-appellant.
27. In this case, there are as many as six injured from the side of defence. At the trial before the Sessions Judge the prosecution did not claim that the injuries of the six injured (narrated above) did not came in the present occurrence and had been received elsewhere in some other occurrence. Before this Court also, the prosecution has not challenged the injuries of the six injured from the defence side having been received in the present occurrence itself.
28. In the present case from the prosecution side there was only one injured Suresh Chandra Yadav, who succumbed to his injuries and became the deceased of this case. There is no other person injured from the side of the prosecution. If the accused-appellants and their companion Bhagauti Prasad Singh co-accused were aggressors they would have inflicted injuries to others also on the prosecution side. It may be noted that the campus in which the occurrence took place was the campus of the house over which Bachchan Singh accused-appellant had taken possession a day earlier to the present occurrence. In the campus there was also the portion in which Shitla Prasad Asthana (PW 1) lived. However, it is manifest from the evidence and the circumstances led by the prosecution side itself that the prosecution side was the aggressor. Here it may be noted that the written F.I.R. of the occurrence was lodged at the police station by the informant at 11.30 a.m. while the cross F.I.R. of the defence was lodged at the police station at 11 a.m. i.e. half hour earlier than the prosecution F.I.R. The medical examination of all the six injured of the side of defence had been performed by the same doctor H. S. Tewari (PW 4), who performed the post-mortem on the dead body of the deceased Suresh Chandra Yadav. At the trial, admittedly, the injuries of the injured persons of the defence side have not been challenged by the prosecution. It may also be noted here that the number of injuries of the injured of defence side were very many. In the case of Bharat Lal Tewari accused-appellant injured, the injuries were as many as 14 and this included the fracture of the bones of the front right leg. Then the number of injuries of Bachchan Singh accused-appellant was as many as 9. There were injuries of other injured also of the defence side. The injuries of defence injured included as many as thirty three blunt injuries and one firearm injury which is indicative of the fact that prosecution party had indulged in the Marpit and even used firearm and was the aggressor.
29. It may be pointed out that in the prosecution F.I.R. there was only the mention that the village people collected at the spot assaulted Bharat Lal Tewari after he had fired the pistol and beat him and then snatched the pistol from him. In other words, the injuries of Bharat Lal Tewari were explained in the prosecution F.I.R. However, in the prosecution F.I.R. there was no explanation whatsoever about the injuries of the remaining injured of the defence side. It may also be mentioned that in the prosecution F.I.R. there was allegation that Bharat Lal Tewari accused-appellant fired one shot which struck the deceased in his right side inguinal region and he was instantly arrested at the spot. This story in the F.I.R. excluded any further fired by this accused-appellant which could have even accidentally injured any one.
30. It is clear from the cross-examination of the ocular witnesses and the Investigating Officer of this case that the witnesses produced at the trial did not allege before the Investigating Officer that any of the said five remaining injured of the defence side had received any injuries in this occurrence.
31. The cross case had been investigated by the Investigating Officer who investigated the present case and so it was impossible that he would not come to know that there were as many as five injured from the defence side, besides Bharat Lal accused-appellant and yet he made the claim that he did not see any injury of Bachchan Singh accused-appellant and Bharat Lal Tewari accused-appellant and further made the false claim that during the investigation he did not learn about the injuries of these injured persons, though he admitted that he learnt that the cross case had been lodged earlier than the present F.I.R. It was his duty to interrogate the prosecution witnesses about the defence injuries but he avoided this altogether. This shows that he did not make a fair investigation in the present case.
32. In this case the prosecution has developed its story at the trial from step to step realising that the injuries of these injured of the defence side as set up by the defence cannot be explained by the witnesses saying that these may have been received elsewhere. Shitla Prasad Asthana (PW 1) who was the person admittedly dispossessed by Bachchan Singh accused-appellant from the house left by his father and claims to have seen the entire occurrence taking place, stated in his examination-in-chief at the trial after testifying to the fire by Bharat Lal Tewari accused-appellant and it striking on the "deceased at his left inguinal region that while" running towards the house of Bhagauti Prasad Singh co-accused, Bharat Lal Tewari accused-appellant had fired a second shot which did not strike anyone and that after going ahead for some distance Bharat Lal Tewari accused-appellant had fired a third shot. He further claimed that this third shot struck perhaps in the right hand or Bachchan Singh accused-appellant. This explanation is obviously, improbable and unbelievable. He further stated that the persons of the Mohalla had apprehended and caught hold of Bharat Lal Tewari accused-appellant and while he was running and reaching up to the door of Bhagauti Prasad co-accused the women of the house of Bhagauti Prasad Singh co-accused and Bachchan Singh accused-appellant had tried to get him released, that on this the persons of the locality had beaten Bharat Lal Tewari accused-appellant and also had beaten Bachchan Singh accused-appellant and Bhagauti Prasad Singh co-accused because these persons were saving them. In this way an effort was made to explain the firearm injury and other injuries of Bachchan Singh accused-appellant and also the injuries of Bharat Lal Tewari accused-appellant and Bhagauti Prasad Singh co-accused. It may be mentioned here that in his examination-in-chief he did not say that the persons of the locality, who had collected there, were carrying any firearm or any other weapon blunt or sharp. In his cross-examination he claimed that Bharat Lal Tewari accused-appellant was beaten by them with kicks and fists, by Panda of Sahjan. brick-bats and stores. He admitted that he did not tell the Investigating Officer that Bharat Lal Tewari accused-appellant was beaten by bricks bats, stones and Danda of Sahjan. In his cross-examination he stated that he did not know if the women of the house of Bhagauti Prasad Singh co-accused and Bachchan Singh accused-appellant had received any injuries in this occurrence. However, he did not say that any Lallan had received any injury in this occurrence. So, even at this stage he did not make any effort to explain the injuries of the remaining injured of the defence side.
33. Masuriya Deen Yadav (PW 2), the other eye-witness of the occurrence, claimed that Bharat Lal Tewari accused-appellant had fired three shots, out of which tine struck at the abdomen of Suresh Chandra Yadav deceased and the second shot did not strike any one and the third shot struck in the hand of Bachchan Singh accused-appellant. He further stated that after it Suresh Chandra Yadav deceased was taken by Desh Raj Yadav (P.W 3) to the Hospital and that the pistol had been snatched by him and others. Thus by this statement he had completed his description about the occurrence and did not testify to any injury being inflicted on the accused party. Yet at this stage the learned sessions Judge allowed the D.G.C. (Criminal) to put direct question to the witness calculated to goad him into furnishing an explanation of the injuries of the defence side. One question put was as to who was beaten. This assumed that some persons have been beaten. Its reply came that they (the -witnesses) had beaten Bharat Lal accused-appellant. Since the complete reply that the prosecution wanted to come from the mouth of the witness had not come even then, the D.G.C. (Criminal) was allowed by the learned sessions Judge to put yet another question, "Whether others were also beaten? In its reply the witness stated that Bhagauti Prasad Singh co-accused, Bachchan Singh accused-appellant and Lallan were also beaten and that when the women of the house of Bhagauti Prasad Singh co-accused jumped in it they had also received injuries. In this way this explanation was extracted out from the witness. Though he was thus forced to claim that Bhagauti Prasad Singh co-accused, Bachchan Singh accused-appellant and Lallan were beaten by the witnesses and that women also received injury accidentally when they had tried to intervene, even then he (this witness) did not say that the complainant party or the witnesses collected at the spot were carrying any weapons, big or small, sharp or blunt or any firearm. On cross-examination by the defence he stated that they had not gone to the spot carrying Lathi-Panda but at the spot bricks and Phelas were lying, which were picked up after the arrest of Bharat Lal accused-appellant. His statement is wholly unworthy of reliance. Unless they had gone well prepared to inflict injuries there would not have been as many as six injured on the defence side. The witness claimed that he had told the Investigating" Officer that Bhagauti Prasad Singh, co-accused, Lallan Singh and Bachchan Singh accused-appellant had received injuries in this occurrence. He also claimed that he had also told the Investigating Officer that the women of Bachchan Singh accused appellant and Bhagauti Prasad Singh co-accused had also come at the spot and received the injuries. He, however, did not give any explanation for the non-recording of the same by the Investigating Officer. Thus it is only at the trial that an effort was made to give explanation of the defence injuries aforesaid.
34. Desh Raj Yadav (PW3) was the informant of the case and father of the deceased. He testified that Shitla Prasad (PW 1) had come to his house at 8 or 8.30 A. M. on 8-3-75 and had told him about the eviction from the house, whereupon he told him (Shitla Prasad PW) to collect more persons and had accompanied him and then they sent to the house of Shitla Prasad and others also came there and his son Suresh Chandra Yadav also reached there. He further testified that altercation took place about possession and Bachchan Singh accused-appellant and Bhagauti Prasad Singh co-accused exhorted Bharat Lal Tewari accused-appellant who fired at the deceased and injured him. He also claimed that Bharat Lal accused-appellant had fired two more shots. He also stated in his examination`-in-chief that before the arrest of Bharat Lal accused-appellant, brick-bats, stones, Danda of Sahjan were used. He did not elaborate about it. He did not state that anyone from any side was injured by it. In cross-examination he stated that bricks, stones and Panda of Sahjan were used but could not see whether these struck Bharat Lal accused-appellant or not and that he did not recollect whether these weapons were used from both sides. Then he stated that both sides had used these weapons. He further stated that he did not notice whether these weapons had struck any other accused person or any one else from that side. Then he volunteered that one Umesh had received injuries on his head. He claimed that Umesh was from the side of Shitla Prasad (PW 1). The prosecution has not produced the injury report of Umesh, nor examined Umesh from its side. In fact no one else claims that Umesh was injured. Thus this witness to is not worthy of credence.
35. This witness admitted that he did not get written in the F.I.R. that bricks, stones and Panda of Sahjan were used in the occurrence. He stated that he forgot to mention this because his son was dying. He further stated that he was interrogated by the Investigating Officer on 25-3-75 (which was long after the death of the deceased). He claimed that he had told the Investigating Officer that bricks, stones and Panda of Sahjan were used. But he did not explain as to why the Investigating Officer had not recorded this in his statement recorded under Section 161 Cr. P.C. in the case diary. He admitted that he did not make mention of any injury of Umesh from the side of prosecution in the F.I.R. recorded by him. He could not say if he had told about it to the Investigating Officer. About women, he stated that the wife of Bhagauti Prasad Singh (co-accused) and one other woman were running hither and thitherto save Bharat Lal, accused appellant but he did not see if these women had received any injuries. He claimed that Lallan (a defence injured) was present at the spot but stated that he did not see him throwing bricks and stones. In his examination-in-chief he mentioned about fire of two more shots by Bharat Lal accused-appellant but did not say that it had struck Bachchan Singh accused-appellant. Cross examined, he stated that he did not mention about striking of fire on Bachchan Singh accused-appellant in the F. I. R. or in his statement before the Investigating Officer because he did not consider it necessary. This explanation would satisfy none. He admitted that he had mentioned about only one fire in the F.I.R. He further stated that he did not remember if he had mentioned about the other fires to the Investigating Officer.
36. It will be seen that it was only at the belated stage that an effort was made to explain the injuries of the defence side. The explanation for not giving the explanation for the defence injuries in the F.I.R. lodged at the police station against Bharat Lal Tewari and Bachchan Singh accused-appellants and Bhagauti Prasad Singh co-accused is also not acceptable. The explanation advanced at the trial is false, concocted and unbelievable.
37. It has been pointed out before us from the defence side and not without substance that Ram Adhar Yadav, to whom the seized weapon is said to have been handed over, was not examined by the prosecution at the trial to explain as to when and in what circumstances this weapon had come into his possession. Another stratling aspect to be noted in this case is that in the F.I.R. and in the ocular testimony the weapon by which fire was made has been described as 'pistol' but in the memo about the weapon purporting to be prepared by the Investigating Officer, at the, police station the description is of a revolver with six chambers in three of which were mentioned empty cartridges present and in the remaining three others there were three live cartridges and such a weapon has been produced at the trial. There is something fishy about it. In the version as given in the F.I.R. only one fire was allegedly shot from a pistol. There was no mention of refilling of the weapon in the F.I.R. or in the ocular testimony at the trial and no body says that it was a revolver.
38. It may be that there are some discrepancies in the counter-versions of the two accused-appellants but, in our view, that is not material.
39. In the F.I.R. it has been recorded, "MAIN APNE LARKE KO ASPATAL LAKAR CHALA GAYA JISKI HALAT KHATARNAK THI". This goes to show that the F.I.R. was not scribed at the Hospital itself but elsewhere and that actually it was scribed or written at the police station. The informant claimed that he had got scribed the F.I.R. at the hospital. The informant stated that he had not written in the F. I. R. that he had come to the Hospital with his son. This explanation is not acceptable.
40. The sum total of the discussion is that the prosecution has not come with clean hands and has not placed before the Court the true facts. The version set out by the prosecution is palpably false. It cannot be doubted that Shitla Prasad (PW1) collected a group of persons and went to the spot determined to take back the possession of the portion of the house which had been taken possession of on the previous day by Bachchan Singh accused-appellant and force was used for that purpose. Thus in all probability it was the prosecution party which was aggressor in this case. The right of private defence of property and also person therefore arose to the defence. Considering the total number of injuries received on the side of defence, it cannot be said that the right of private defence of property or person has been exceeded. As noted earlier, only one shot was fired at the deceased and that injured him and the said injuries ultimately resulted in his death in the Hospital. No further fire is shown to have been made, towards him and on his body no other type of injury had been inflicted. The story of the second and third fire by Bharat Lal accused-appellant cannot be accepted even for a moment. It is to be noted that there was no previous enmity between Bharat Lal accused-appellants and the deceased or his (deceased's) father. He was not the allottee of the house about whose possession the entire dispute was. It was Bachchan Singh accused-appellant who was the allottee and had taken possession of that house a day earlier. Considering that truth and falsehood have been inextricably mixed up in the prosecution case it is not possible to give positive finding that it was Bharat Lal accused-appellant who fired the shot which caused the death. So if at all the right of private defence has been exceeded it cannot be said as to who exceeded it.
41. Under the aforementioned circumstances of this case, both accused-appellants are entitled to be given the benefit of doubt.
42. In the result, the appeal is allowed. The conviction and sentence of Bharat Lal Tewari accused-appellant for the ofence under Section 302 I.P.C. and of Bachchan Singh accused-appellant for the ofence under Sections 302/109 I.P.C. are set aside. Both the accused-appellants are acquitted of the offences for which they were tried. They are on bail from this Court. They need not surrender to it. Their bail bonds are cancelled and sureties are discharged.
43. Let a copy of this judgment be sent to the learned Sessions Judge concerned within a week for information and compliance. The compliance report shall be submitted by the Sessions Judge concerned to this Court within a month from today.