JUDGMENT Ravindra Singh, J.
1. Heard Sri V.K. Birla learned Counsel for the revisionists and the learned A.G.A.
2. The report of the learned Chief Judicial Magistrate, Mainpuri dated 11.7.2005 shows that the revisionist Nathuram and Genda Lal have died. Therefore, the revision on their behalf is abated.
3. This revision is filed against the judgment and order dated 22.4.1985, passed by Sri O.P. Jain, IV Additional Sessions Judge, Mainpuri, by which the criminal Appeal No. 145 of 1983 was dismissed by confirming the judgment and order dated 30.6.1983, passed by Sri J.K. Sant, III Addl. Munsif Magistrate, Mainpuri in Criminal Case No. 814 of 1980, whereby the revisionists were convicted and sentenced under Section 147 I.P.C. for six months simple imprisonment, under Section 323/149 I.P.C. for one year simple imprisonment, under Section 325 I.P.C. for two years R.I. with a fine of Rs. 500/- and in default of payment of fine, to serve further six months simple imprisonment and under Section 342 I.P.C. for six months simple imprisonment, directing that all the sentences as mentioned above shall run concurrently.
4. The revisionists were charge-sheeted for the offence punishable under Sections 147, 323/149, 325 and 342 I.P.C. In order to prove the prosecution case, seven witnesses namely Moharman P.W.1, Ram Phal P.W.2, Hakim Singh P.W.3, Ajab Singh P.W.4, Dr. S.C. Verma P.W.5, Dr. R.B. Gupta P.W.6 and S.I. Dhani Ram P.W.7 were examined in the trial court.
5. From the accused side, their statements were recorded under Section 313 Cr.P.C. in which they have taken the plea of self defence. In support of their plea, D.W.1 Surendra Babu, D.W.2 Dhani Ram Sharma and D.W.3 Sri Krishan were examined in the trial court.
6. After considering the evidence adduced by both the sides, the trial court convicted the revisionists under Sections 147, 323/149, 325 and 342 I.P.C. Against that order, the revisionists filed Criminal Appeal No. 145 of 1983, the same was dismissed by learned IV Addl. Sessions Judge, Mainpuri on 22.4.1985.
7. According to the prosecution version, the first informant his brother injured Ram Datt and his father Moharman were grazing their goats who entered into the field of Nawab Singh , it was objected by the revisionist Nathu Ram but the first informant replied that the field was open that is why he was taking the goats directly to the village. Thereafter a dispute arose between the parties. Consequently the injuries were caused by the accused persons by using Lathi and Danda blows, the first informant and his brother received injuries. Thereafter the father of the first informant was taken away by the accused persons who was illegally detained inside the house of the accused Narendra Singh. Thereafter, the F.I.R. was lodged which was scribed by one Ram Singh.
8. It is contended by the learned Counsel for the revisionists that in the present case the alleged occurrence had taken place all of sudden, it was not pre-intended and both the sides have received injuries and from both the sides F.I.Rs. were lodged and both the sides were charge-sheeted and both parties were convicted by the trial court but accuseds of the other side were acquitted by the appellate court. It is further contended that the trial court had committed a manifest error of law by not considering the plea of the self defence because it was fully proved by the revisionists. In support of this plea, D.W.1 Surendra Babu, D.W.2 Dhani Ram Sharma and D.W.3 Sri Krishna were examined in the trial court. D.W.2 is the Investigating Officer of both the cases, who has categorically stated that the cross case was also charge-sheeted and D.W.3 has proved the injury reports of the revisionists side. From the side of the revisionists Nathu Ram and Vinod have received injuries which have not been explained by the prosecution. The appellate court has not properly considered this plea and illegally held that the revisionists were aggressors because the number of the injuries received by the revisionists side were less than the injuries received by the prosecution side. It is contended that the question of the aggressor can not be decided only on the basis of the injuries received by both the sides. It is further contended that the occurrence of the present case is of the year 1980. One accused Nawab Singh was died during the pendency of the trial and the revisionists Nathu Ram and Genda Lal have also died. Now the revisionist Nos. 3 and 4 Surendra alias Sindu and Naresh Baboo respectively are alive who are old persons; they are aged about 75 years. The trial court and the appellate court have committed another manifest error of law by not considering the plea of first offender also.
9. The learned A.G.A. submits that in the present case the prosecution story is fully corroborated by the medical evidence and there is eye-witness account. There is no illegality in the impugned orders because the prosecution has successfully proved its case that the revisionists have committed the alleged offence and they are aggressors also.
10. Considering the facts and circumstances of the case and the submissions made by the learned Counsel for the applicants and the learned A.G.A., I am of the view that in the present case, the plea of the self defence was taken by the revisionists and this plea was properly proved in the trial court and the injuries received by the revisionists' side have not been explained, the prosecution has not come with clean hands. The trial court has committed a manifest error of law by not considering this plea. The same mistake was committed by the appellate court by recording the finding that the revisionists were aggressors because they have received lessor injuries than the injuries received by the prosecution side, this finding recorded by the appellate court is not proper because, in case, plea of self defence is taken, the question of aggressor is not decided only on the basis of the number of the injuries received by the accused side and the prosecution side but other facts and circumstances including the place, manner and cause of the occurrence are required to be considered but the courts below have not considered other facts and circumstances of this case to deal with the plea of self defence. In the present case, the alleged occurrence has taken place in the field of the accused, it was not pre-intended, it was a result of sudden quarrel and both the parties have received injuries and both the parties were tried by the court and were convicted but the first informant's side has been acquitted by the appellate court and the appeal of the revisionists has been dismissed by holding that they were aggressors, the appellate court has not properly considered the plea of self defence taken by the revisionists and without considering the other facts and circumstances of the case the revisionists have been declared aggressors, the view taken by the appellate court is erroneous and bad in law because the revisionists cannot be said to be aggressors, the prosecution has failed to prove its case beyond the shadow of doubt, therefore the revisionists are entitled to get the benefit of doubt and in cross case the accuseds have been acquitted by the appellate court.
11. For the reasons, as referred above, the revisionists Surendra @ Sindu and Naresh Babu are acquitted for the charges punishable under Sections 147, 323/149, 325 and 342 I.P.C. and the impugned judgment and order dated 30.6.1983 passed by the learned III Addl. Munsif Magistrate, Mainpuri, in Criminal Case No. 814 of 1980 and judgment and order dated 22.4.1985 passed by learned IV Addl. Sessions Judge, Mainpuri in Crl. Appeal No. 145 of 1983 are set aside. The revisionists are on bail, their bail bonds are cancelled, they are not required to surrender to the court concerned and the sureties are discharged.
12. Accordingly, this revision is allowed.