JUDGMENT U.S. Tripathi, J.
1. This appeal has been directed against the judgment and order dated 7-12-1988 passed by 5th Additional Sessions Judge, Etawah in S.T. No. 228 of 1986 convicting the appellants Ram Adhin, Ram Naresh and Hari Om under Sections 147, 307 read with Section 149 and 302 read with Section 149, I.P.C. and sentencing each of them one year R.I. under Section 147, I.P.C., 5 years R.I. and fine of Rs. 1000/- under Section 307 read with Section 149, I.P.C. and imprisonment for life under Section 302, read with Section 149, I.P.C. and convicting the appellants Mulayam Singh, Mohar Singh and Dharam Pal Singh under Sections 148, 307 read with Sections 149 and 302 read with Section 149, I.P.C. and sentencing each of them one year R.I. under Section 148, I.P.C., 5 years R.I. and fine of Rs. 1000/- under Section 307 read with 149, I.P.C. and imprisonment for life under Section 302 read with Section 149, I.P.C. All the substantive sentences were ordered to run concurrently.
2. The prosecution story, briefly stated, was as under :--
Appellants Mulayam Singh, Ram Adhin, Ram Naresh were real brothers while appellants Dharam Pal and Hari Om were real brothers. All the appellants were residents of village Jadopur, P.S. Arva Katra, district Etawah, Mahraj Singh (P.W. 3) , his brother Sahukar (P.W. 5), Tale Singh deceased and Suresh were also residents of the same village.
3. On the morning of 1-9-1985 at about 7.30 am. Mahraj Singh (P.W. 3) his brothers Sahukar (P.W. 5), Tale Singh deceased Suresh Singh and Vijai Singh were working in their field. Tale Singh deceased was ploughing the field and others were repairing Mend. In the mean time appellants Mulayam Singh armed with spear and katta, Dharampal Singh armed with Dhariya and Hari Om, Ram Adhin and Ram Naresh armed with lathis came to the said field and started inflicting blows with their respective weapons on Mahraj Singh and others. On their alarm Suresh Singh, Ujagar Singh, Lal Bahadur, Chhotey Lal and Amar Singh came to the spot and on their challenge the appellants left the spot. Mahraj Singh (P.W. 3), Sahukar (P.W. 5), Tale Singh deceased and Suresh Singh sustained injuries,
4. Mahraj Singh (P.W.3) got prepared report (Ext. Ka-5) of the occurrence from one Shiv Raj Singh and went to police station Arva Katra along with injured persons where he lodged the report at 10.30 a.m. Chik F.I.R. (Ext-Ka-1) was prepared by Constable Mizaji Lal (P.W. 1) who made an endorsement of the same at G. D. report (Ext. Ka-2) and registered a case against the appellants under Sections 147, 148, 149, 323, 324 and 307, I.P.C. The injured Mahraj Singh (P.W.3), Tale Singh deceased, Sahukar (P.W.5) and Suresh Singh were sent to District Hospital, Etawah where they were medically examined by Dr. S. C. Gupta (P.W.4) between 5.55 p.m. and 6.30 p.m. who prepared injury report (Exts. Ka-7 to Ka-10).
5. Investigation of the case was taken up by R. K. Shukla (P.W.6) Sub-Inspector. He interrogated Mahraj Singh (P.W.3), Tale Singh, Sahukar (P.W.5) and Constable Mizaji Lal (P.W.1) and other at the police station. Thereafter, he inspected place of occurrence and prepared site plan (Ext. Ka-20). On 2-9-1985 on receipt of injury report the Investigating Officer altered the case under Sections 147, 148, 149, 324, 307 and 323, I.P.C. Tale Singh died on 3-9-1985.
6. Autopsy on the dead body of Tale Singh deceased was conducted on 4-9-1985 by Dr. C. P. Misra, who found one lacerated wound 4 cm x 1 cm x scalp deep over head mid line 13 cm away from left ear and haematoma 6 cm x 4 cm underneath the injury. Cause of death was due to coma due to head injury. He prepared post-mortem report (Ext. Ka-23).
7. On receipt of post-mortem report of Tale Singh deceased, case was altered under Section 302, I.P.C. on 5-9-1985. The subsequent investigation was taken up by Sri Suraj Singh (P.W. 2) who on completion of investigation submitted charge-sheet against the appellants.
8. Cognizance of the case was taken up by the Magistrate, who committed the case to the Court of Sessions.
9. Appellants Mulayam Singh, Mohar Singh and Dharam Pal were charged with the offences punishable under Sections 148, 307 read with 149, I.P.C. and 302 read with Section 149, I.P.C. while appellants Ram Adhin, Ram Naresh and Hari Om were charged with the offences punishable under Sections 147, 307 read with Section 149 and Section 302 read with Section 149, I.P.C. The appellants pleaded not guilty. The defence of appellant-Mulayam Singh was that on 1-9-1985 at about 7.30 a.m. he went to his field and saw that Mahraj Singh (P.W. 3). Vijay Singh, Sahukar (P.W.5), Suresh Singh, Mahesh, Hori Lal, Ajab Singh and Ranveer Singh were dismantling Mend of his field and Tale Singh deceased was ploughing his paddy crop. He objected them from damaging his Mend and crop. Tale Singh left the plough and attacked on him with lathi. He caught hold his lathi. In the course of snatching lathi Mahraj Singh (P.W. 3) and others started inflicting injuries on him. Tale Singh also sustained a lathi blow in it. He snatched lathi of Tale Singh and plied it in his self-defence. He went to police station and submitted written report. The Head Constable had inspected his injuries and sent him to District Hospital, Etawah along with other injured persons for medical examination. He was medically examined at the hospital and X-ray of his injury was also done. Subsequently, he came to know that on his report a non-cognizable report was written which did not bear his signature. His medical report was also got lost. He moved an application in the Court and on his application cross case was investigated and charge-sheet was submitted.
10. The prosecution to prove its case examined Constable Mizaji Lal (P.W.1), S.I. Suraj Singh (P.W.2), Mahraj Singh (P.W.3), Dr. S. C. Gupta (P.W.4), Sahukar (P.W.5) and S.I.R.K. Shukla (P.W.6).
11. The appellants examined Dr. R.K. Chaudhary, Radiologist (D.W.1), S.I. Babu Singh (D.W.2), Sadan Singh Lekhpal (D.W.3), Ram Sewak, Seanchpal canal department (D.W.4). Constable Mizaji Lal (D.W.5), Daya Shankar Gupta, Pharmacist (D.W.6), Constable Har Bilas Shukla (D.W.7), Aarashad Marakh, Clerk of Munsif Court, Etawah (D.W.8) and Dr. S. C. Gupta (D.W.9).
12. The learned Sessions Judge on considering the evidence of the parties held that the appellant side was aggressor and had no right to act in self-defence and the prosecution successfully proved the guilt of the appellants. With these findings he convicted and sentenced the appellants as mentioned above.
13. Aggrieved with their above conviction and sentence the appellants have come up in this appeal before this Court.
14. We have heard Sri V. C. Tiwari, Senior Advocate assisted by Sri A. K. Awasthi, Advocate for the appellants and learned, A.G.A. for the respondent and have perused the entire evidence on record.
15. The appellants have admitted the Marpeet on the date, time and place of occurrence, injuries of injured Mahraj Singh (P.W.3), Sahukar (P.W.5), Suresh and Tale Singh deceased. They have also admitted death of Tale Singh deceased on account of injuries sustained by him in the incident.
16. The case of the prosecution was that Tale Singh deceased was ploughing his field (plot No. 2831) and his brother Mahraj Singh (P.W.3), Suresh, Sahukar (P.W.5) and Vijay were repairing Mend of the said field. In the mean time at about 7.30 a.m. the appellants came there and attacked on them with lathies, Kanta, Dhariya and spear. On the other hand the case of the appellants was that Tale Singh deceased was damaging his paddy crop of plot No. 2832 by ploughing it and Mahraj Singh (P.W.3), Sahukar (P.W.5), Suresh and Vijay were dismantling Mend of his above field and on his objection all of them attacked on him. He caught hold lathi of Tale Singh deceased and during scuffle Tale Singh deceased sustained injury. He snatched lathi of Tale Singh deceased and plied it in his self-defence.
17. The learned counsel for the appellants contended that the appellants acted in self-defence and the prosecution side was aggressor. He further contended that the prosecution side had not explained the injuries of appellant Mulayam Singh which indicates that the prosecution has suppressed origin and genesis of marpeet and the version set up by the appellants which is supported by the evidence of Dr. S. C. Gupta (P.W.4) and (D.W.9) and other evidence on record is more probable. Therefore, it is to be considered as to which side was aggressor and whether the appellants' side got right of self defence.
18. In this case the prosecution has relied on ocular testimony of Mahraj Singh (P.W.3), Sahukar (P.W.5) and the alleged dying declaration of Tale Singh deceased (Ext. Ka-22) recorded by the I.O. under Section 161, Cr.P.C.
19. Before adverting to the above question we have to consider the medical evidence Dr. S.C. Gupta (P.W.9) examined Mahraj Singh (P.W.3), Sahukar (P.W.5) Suresh and Tale Singh deceased and found following injuries on their person :--
Sahukar (P.W.5)
1. Incised wound on right side of forehead 2 cm x 1.5 cm x muscle deep, 4 cm above right eyebrow. Soft clotted blood present on surface.
2. Redish contusion on left forearm 7 cm x 3 cm on outer surface just below elbow joint.
3. Redish contusion on left deltoid region and upper arm 6 cm x 2 cm, 2 cm below top of shoulder.
4. Redish contusion on left side of lateral surface of back at lower part 6 cm x 2 cm All injuries were caused by hard and blunt, object and duration was half day and nature was simple.
Mahraj Singh (P.W.3)
1. Incised wound on left occipital surface of scalp 5 cm x 0.5 cm x scalp deep. Margins clean-cut. 8 cm above left ear, soft clotted blood present on surface.
2. Incised wound on left side of forehead 5 cm x 0.5 cm x muscle deep. 5 cm above root on nose. Margin clean cut.
3. Redish contusion on left upper arm back surface 4 cm x 2 cm 1 cm above elbow joint.
4. Redish contusion on left forearm 4 cm x 2 cm 18 cm above wrist joint.
5. Incised wound on right lower back part and thigh 2 cm x 0.3 cm x muscle deep. 9 cm above knee joint.
6. Redish contusion right side of back in middle part 8 cm x 2 cm.
Injuries No. 1, 2, and 5 were caused (by sharp edged object rest by hard and blunt object. Duration was about half day. All injuries were simple in nature.
Suresh Singh
1. Redish contusion on left ulnar side of hand palmer surface 6 cm x 2 cm.
2. C/o pain in right ankle joint. But no external injury seen Injury No. 1 was caused by hard and blunt object. Duration was about half day and simple in nature.
Tale Singh Lacerated wound on top of head 4 cm x 0.8 cm x scalp deep in mid line, 13 cm above from left ear. Margin irregular. Soft clotted blood present on surface.
Injury caused by hard and blunt object, kept under observation. Duration about half day.
Dr. S. C. Gupta was also examined as D.W. 9 and stated that on 1-9-1985 at 6.50 p.m. he examined injuries of Mulayam Singh appellant and found following injuries on his person :--
1. Redish contusion on right forearm lower part 10 cm x 4 cm on ulnar side 5 cm above wrist joint. Kept under observations and advised X-ray right forearm.
2. Redish contusion on right upper arm 5 cm x 0.5 cm, 10 cm above elbow joint on outer surface.
3. Redish contusion on left middle lower part of thigh 9 cm x 1 cm, 22 cm above knee joint.
4. Redish contusion in area 10 cm x 5 cm on right middle part of thigh, 10 cm x 0.5 cm
5. Redish abraded contusion on right front lower, part of leg, 6 cm x 2 cm.
20. All injuries caused by hard and blunt object. Duration about half day. Injury No. 1 kept under observation. Advised X-ray. Rest simple in nature.
21. Dr. R. K. Chauhan (D. W.1) stated that on 3-9-1985 he conducted X-Ray of right forearm of Mulayam Singh and found fracture of ulna bone of right forearm.
22. Dr. C. P. Misra who conducted autopsy on the dead body of Tale Singh deceased, prepared post mortem report (Ext. Ka-23), the genuineness of which was admitted by the appellants before the Trial Court. He found following ante mortem injury :--
23. Lacerated wound 4 cm x 1 cm x scalp deep overhead mid line, 13 cm away from left ear.
24. Internal examination showed that both parietal bones were fractured. Membranses were congested and haemetoma 6 cm x 4 cm present underneath injury and cause of death was due to coma due to above head injury.
25. It is admitted to the parties that Tale Singh deceased and his brothers had their field plot No. 2831. Towards west of above plot there was plot No. 2832 belonging to the appellant Mulayam Singh. It was mentioned in the F. I. R. (Ext. Ka-1) that on the date of occurrence Mahraj Singh (P. W.3), Sahukar (P. W. 5), Suresh and Vijay were preparing Mend of their field. Mahraj Singh (P. W.3) and Sahukar (P. W.5) had also stated before the I. O. that at the time of occurrence they, Suresh and Vijay were preparing Mend of their field and Tale Singh deceased was ploughing the field. The contention of appellants was that some portion of their field extended towards the field of Tale Singh deceased, the Mend of which was being damaged by Mahraj Singh (P. W. 3) and others to make their field straight. Sadan Singh (D. W.3) Lekhpal of the village stated that plot No. 2832 was extending towards plot No. 2831 on northen side. Subsequently, Mahraj Singh (P. W. 3) and Sahukar (P. W. 5) changed their initial version and stated in their evidence that they were simply repairing their Mend and were not, preparing it. They stated that they knew difference between preparing and repairing. Sadan Singh (D. W.3) Lekhpal of the village also stated that he had visited the spot on the request of the appellants and found that eastern Mend of northern side of plot No. 2831 was damaged. Babu Singh (D. W. 2) who had investigated cross case initiated on the report of appellant Mulayam Singh had also stated that during investigation he visited the spot and prepared site plan and found that north eastern Mend of plot No. 2832 was damaged at point 'C'. Sri R. K. Shukla, I. O. (P. W. 6) also proved the statement of Mahraj Singh (P. W. 3) and Sahukar (P. W. 5) given before him during investigation that at the time of occurrence they were preparing their Mend. From the above evidence and shifting of initial version by Mahraj Singh (P. W. 3) and Sahukar (P. W. 5) it appears that the prosecution side was damaging north eastern Mend of plot No. 2832 belonging to appellants. However, Mahraj Singh (P. W. 3) stated that his father had initiated a proceeding of 'Mendabandi' before the Revenue Authorities and succeeded in it, but he did not file the judgment of the above proceeding and admitted in the cross-examination that his father had filed revision before the Commissioner of the Division as the Sub-Divisional Officer had rejected the proceeding initiated by his father. It shows that firstly the prosecution side tried to extend the area of plot No. 2831 and when no success was obtained they indulged in damaging north eastern Mend of plot No. 2832 belonging to appellants which has extended towards their field.
26. Mahraj Singh (P. W. 3) stated that there was no paddy crop in the field of appellant Mulayam Singh. Sri R. K. Shukla. I.O. (P. W. 6) stated that he did not remember whether there was any paddy crop in the field of appellant Mulayam Singh or not. Babu Singh (D. W. 2) I. O. of the cross case stated that at the time of spot inspection he found paddy crop in the field of appellants which was dry. He also stated that sign of ploughing above paddy crop was found on the spot. Thus, it is established that the prosecution side was damaging paddy crop of the field of the appellants by ploughing the same.
27. Mahraj Singh (P. W. 3) had admitted before the I. O. that on reaching the spot appellant Mulayam Singh was saying that plot belonged to him and objected them to damage his Mend of the said plot and ploughing the same. This again showed that initially prosecution case was that Mulayam Singh objected the prosecution side from damaging Mend of his field as well as damaging paddy crop which Tale Singh was ploughing.
28. Mahraj Singh (P. W. 3) denied the presence of injuries on the person of appellant Mulayam Singh as well as his presence at the police station. He also denied that Mulayam Singh was sent by the police for medical examination along with him and other injured. But Constable Mizaji Lal (P. W.I and D. W. 5) stated that on 1-9-1985 he inspected the injuries of Mulayam Singh and entered the same at G. D. report. That he also prepared Chitthi Majrubi of appellant Mulayam Singh along with other injured of the prosecution side and sent them (including Mulayam Singh appellant) to Primary Health Centre, Arva Katra through Constable Har Bilas Shukla for medical examination. Constable Har Bilas Shukla was examined as (D. W. 7) and stated that he had taken Mulayam Singh along with injured Mahraj Singh (P. W. 3), Sahukar (P. W. 5), Suresh and Tale Singh along with Chitthi Marjroobi to Arva Katra Hospital. The above hospital was closed and therefore he took them to Bidhuna from where the injured were referred to District Hospital, Etawah. He took them to District Hospital, Etawah. In the evening he returned to police station along with injury reports of Sahukar (P. W. 5), Mahraj Singh (P. W. 3), Tale Singh, Suresh and Mulayam Singh and deposited the same at police station. However, Constable Mizaji Lal (P. W. 1 and D. W. 5) stated that the injury report of appellant Mulayam Singh was not received at the police station. Dr. S. C. Gupta (P. W. 4 and D. W. 9) stated that he examined Mulayam Singh on 1-9-1985 at 6.50 P. M. The injuries of appellant Mulayam Singh have been referred to above. Dr. R. K. Chaudhary (D. W. 1) stated that on 3-9-1985 he X-rayed right forearm of appellant Mulayam Singh and found that there was fracture of Ulna bone. According to Dr. Gupta (D. W. 9) the injuries of Mulayam Singh were about half day old and could have been caused at 7.30 A. M. on 1-9-1985. Thus, injuries on the person of appellant Mulayam Singh on the date and time of occurrence are established. However, the prosecution witnesses Mahraj Singh (P. W. 3) and Sahukar (P. W. 5) denied the injuries on the person of appellant Mulayam Singh. They also denied the fact that the appellant Mulayam Singh was present at the police station when they reached there. Non explanation of injuries on the person of appellant Mulayam Singh leads to infer that the prosecution suppressed origin and genesis of marpeet. The ocular witnesses Mahraj Singh (P. W. 3) and Sahukar (P. W. 5) also shifted their version contained in the F. I. R. and told before the I. O. and their evidence was contradicted by Constable Mizaji Lal (P. W. 1) and Constable Har Bilas (D. W. 7).
29. Much emphasis was laid oh dying declaration of Tale Singh deceased (Ext. K-22), but as mentioned above the version contained in the dying declaration is contradicted by evidence on record referred to above.
30. Thus it is clear from the evidence on record that the prosecution side was aggressor as the deceased and injured persons of the prosecution side were damaging Mend of the appellants and uprooting their paddy crop and on the objection of appellant Mulayam Singh they attacked on him and therefore, Mulayam Singh got right of self defence. The injuries on the person of deceased showed that there was only one lathi blow on his head which further indicates that the appellants Mulayam Singh had not exceeded in right of self defence as he was attacked by as many as five persons and also sustained injuries and thus, apprehended danger to his life.
31. It was contended from the side of prosecution that according to version of the appellants Mulayam Singh acted in his self defence by plying lathi. But Mahraj Singh (P. W. 3) had sustained two incised wounds and Sahukar (P. W 5) had sustained one incised wound regarding which there is no explanation. As mentioned above initial version of the prosecution was that Mahraj Singh (P. W. 3), Sahukar (P. W. 5), Suresh and Vijay were preparing Mend. Mahraj Singh (P. W. 3) and Sahukar (P. W. 5) admitted that Mend is prepared by Phawara. However, they denied having of Phawara and stated that they were simply reparing the Mend by a Khurpi. As many as five persons attacked on appellant Mulayam Singh and he tried to snatch lathi of Tale Singh deceased. Therefore, the possibility that Mahraj Singh (P. W. 3) and Sahukar (P.W. 5) sustained incised wounds by Phawara or Khurpi in the scuffle cannot be easily ruled out. Moreover, the appellant side are not expected to prove its case to the hilt and if the appellant side shows preponderance of probabilities to have acted in self defence they must be given benefit of it. As mentioned above the evidence on record clearly indicates that prosecution side was aggressor and appellant Mulayam Singh had right to act in self-defence. The learned Sessions Judge, therefore, erred in convicting and sentencing the appellants.
32. Thus, the appeal succeeds. The appeal is allowed. Conviction and sentence of the appellants are set aside and they are acquitted of the offences to which they were tried. They are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender.