JUDGMENT : G. K. Mitter, J. This is an appeal by special leave from a judgment and order of the Allahabad High Court setting aside the order of acquittal of four persons by a Magistrate of Mathura and holding the acquitted persons guilty of charges under Sections 323/34 I.P.C., 324, 325/34 I.P.C. and 328/34 I.P.C. and passing different sentences on each of the counts, the sentences to run concurrently. 2. On behalf of the appellants points were raised questioning the legality of the hearing of the appeal before the High Court and the propriety of the ex parte hearing before the said court but as we are satisfied that the appellants are entitled to succeed on the merits, we refrain from expressing our views thereon. 3. The facts of the case in short are as follows: Bhaggar and Heta who were closely related owned contiguous houses in the village of Ahuri. There had been litigation in civil courts between Heta and members of Bhaggar's family with regard to a drain. Bhaggar's house was mud-built, whereas Heta's was a pucca structure. According to the complaint lodged in this case by Heta's nephew Munshi, the accused Narain and Bahupi, sons of Bhaggar and Shibbo and Ghanshyam, sons of Tikam had closed the drain in from the side of Beta's house with the result that the water was flowing inside the said house. Heta started cleaning the drain whereupon the accused persons came armed with lathi and asked Heta to stop. As Heta did not comply with the request the accused beat him with lathis. Amar Singh and Govinda who had gone to Heta's rescue were also assaulted. Narain had a sharp-edged blade fixed to his lathi. Govinda and Amar Singh wielded their lathis in self-defence. An information had been lodged at the police station and the injured medically examined. The version of the defence before the Magistrate was that Heta was cleaning a drain on the top of his house to let out the water lodged thereon which would have resulted in water falling on the mud-built house. Not listening to the protests against Heta's action by Ghan-shyam, Heta, Munshi, Amar Singh and Govinda started to beat him. 4. The version of the defence before the Magistrate was that Heta was cleaning a drain on the top of his house to let out the water lodged thereon which would have resulted in water falling on the mud-built house. Not listening to the protests against Heta's action by Ghan-shyam, Heta, Munshi, Amar Singh and Govinda started to beat him. 4. It appears that both parties had lodged first information report before the police, that by Ghanshyam was at 6.10 p.m. while the other by Munshi, Heta's nephew was at 8.15 p.m. Admittedly the incident occurred at 4 p.m. Heta, Amar Singh and Govinda were medically examined the same night and Ghanshyam got his injuries examined also. In the first information report lodged on Heta's side, there was no mention that anybody on Heta's side had used lathis in self-defence. Ghanshyam's report filed earlier was to the effect that Heta, Govinda, Amar Singh and Munshi beat him with lathis and that he had also inflicted lathi blows in self-defence. In the first information report of Munshi the accused were said to have been armed with lathis only. But in the complaint filed before the Magistrate it was stated that Narain, one of the accused, had a sharp-edged blade fixed to his lathi. The Magistrate who tried the matter remarked that a different story had been set up in Munshi's complaint when it came to be known that one of the injuries on Govinda was a punctured wound and that one of on Amar Singh was an incised wound which could not be explained away from the first information report. The Magistrate also remarked that there was no mention of any witnesses in the first information report by Munshi. After examining the evidence of witnesses carefully, the Magistrate took the view that it was Heta's group which had been the initiative as aggressors in the affray and Ghanshyam's group had acted in their right of self-defence of person and property. According to the Magistrate the defence version supported by D.Ms. 1 and 2 was quite probable and there was no reason to disbelieve it. His ultimate conclusion was that the prosecution story raised many doubts and the benefit there should go to the accused. 5. According to the Magistrate the defence version supported by D.Ms. 1 and 2 was quite probable and there was no reason to disbelieve it. His ultimate conclusion was that the prosecution story raised many doubts and the benefit there should go to the accused. 5. The learned Judge of the Allahabad High Court heard the appeal ex parte on May 19, 1966 noting in his judgment that Shri J.N. Chaturvedi, the counsel for respondents had withdrawn and had instructions. He accepted the argument of counsel of the appellant that even if Ghanshyam's testimony to the effect that Heta and three others had started the aggression, his case that he had acted in self-defence was `contrary to the medical evidence and the probabilities of the case'. The learned Judge did not discuss the testimony of the witnesses in any detail but addressed himself almost wholly to the evidence of P.W. 7, Dr. K.C. Garg according to which there were four injuries on P.W. 1 Govinda, six injuries on Amar Singh and two injuries on P.W.S. Heta and only two injuries on Ghanshyam. One of the injuries on Govinda was a punctured would caused by a sharp-edged weapon and one of the injuries on Amar Singh was an incised wound caused by a similar weapon and the other injuries were caused by lathis. All the injuries were simple in nature excepting one on Govinda which was grievous. The total number of injuries on the side of the complainant were twelve as against two on the side of the respondents. Further, the learned Judge relied on the medical evidence to show that at least four kinds of weapons had been used on the side of Ghanshyam, viz., a sharp-edged weapon, a sharp-pointed weapon and lathis of which one was either iron clad or with an iron clasp fitted to it. According to the learned judge `the disparity in the number of injuries caused on either side provided a sure guide to the answer of this question, viz., whether Ghanshyam and his companions had exceeded the right of private defence of property'. He held that the respondents had taken undue advantage of their superior position and in inflicting twelve injuries on them had grossly exceeded their private defence of person and property. He held that the respondents had taken undue advantage of their superior position and in inflicting twelve injuries on them had grossly exceeded their private defence of person and property. He accordingly set aside the order of acquittal and passed various sentences on all of them on different counts from six months' rigorous imprisonment to eighteen months' rigorous imprisonment. 6. In our view, the learned judge went wrong in deciding the appeal against the respondents mainly because the medical evidence showed that the complainant's group had had the worst of the affray. There were four persons in each group and some if not all of them were armed with lathis. The absence of mention in Munshi's first information report of Narain having a sharp-edged weapon was completely lost sight of by the learned judge. No doubt the medical evidence supported the story made out in the complaint led before the Magistrate but this was three days after the occurrence while the first information report was lodged on the day of the incident, although two hours after that lodged by Ghanshyam's group. In our view, the Magistrate who dealt with the oral evidence in some detail came to the correct conclusion in rejecting the prosecution story. We should therefore allow the appeal and set aside the order of conviction of the appellants. They should be set at liberty forthwith.