JUDGMENT 1. - This D.B. criminal Appeal has been filed by the accused appellants against the judgment of learned Sessions Judge, Sikar, dated 21.2.1983. The appellants have been convicted and sentenced by the learned Sessions Judge in the following manner: Smt. Ram Kauri under section 302 IPC and Mahaveer and Ratan Lal u/s 302/34 IPC, life imprisonment and a fine of Rs. 1,000/ - ,in default of payment of fine, further rigorous imprisonment for six months. All the appellants under section 323 IPC - 3 months RI 2. The case as alleged by the prosecution is that on June 8, 1982, Laxman s/o Hukma Ram was taking his meals at about 9 p.m., in his house situated at village Hatmaser, police station Ramgarhsethan. The accused Ratan Lal who was Laxman's uncle's son came to the house of Laxman and told him that the accused (Ratan Lal) had a right to abuse his sister and Laxman had no right or concern to raise any objection in this regard. An altercation took place between Laxman and Ratan Lal and thereafter Ratan Lal took Laxman by force catching hold the hand of Laxman, in his own guwari. In the Guwari of Ratan Lal, Ram-kauri and his sons Mahaveer and Omprakash were also present and Ramkauri asked the sons to give beating to Laxman. The prosecution story further is that Mahavir and Om Prakash brought jellies. Ramkauri was armed with a gandasi and Ratan Lal had a Dantli in his hand and all these four persons then started giving beating to Laxman. Laxman became unconscious and fell on the ground on account of the injuries. After some time Sheokanwari and Parmashwari also reached on the spot to rescue Laxman but Ramkauari w/o Ratan Lal inflicted injury on the head of Sheokanwari by gandasi. Ramkauri also inflicted injuries on the left hand and other places on Sheokanwari. Ratan Lal inflicted injuries on the body of Parmeshwari. On raising cry, Amin, Wahid and Ahmed Ali came on the spot and they rescued the injured persons from the beating given by the accused persons. Thereafter, the villagers also reached on the spot. Laxman was taken to Seth J.P. Bhartiya Hospital, Fatehpur and on the same night at about 1.30 a.m. Chouthmal, A. S. I, also reached the hospital Chouthmal. Thereafter, the villagers also reached on the spot. Laxman was taken to Seth J.P. Bhartiya Hospital, Fatehpur and on the same night at about 1.30 a.m. Chouthmal, A. S. I, also reached the hospital Chouthmal. A S.I. P. W. 12, recorded the statement of Sheokanwari and as the place where the incident had taken place fell within the jurisdiction of the Police Station Ramgarhsethan, he sent the papers for further investigation to Police Station Ramgarhsethan. The Police registered a case under section 307 IPC. In the same morning at about 6. a.m. Laxman succumbed to the injuries. The autopsy of the dead body of Laxman was conducted by Dr. Yudhvir Singh P. W. 1. and he found the following injuries on body of the Laxman:- (1) Incised wound 31/2" x 1/2" X bone deep on left parietal region. (2) Lacerated wound 21/2" X 1/2" x 1/4" on right leg middle part anteriorly. (3) Incised wound 1" x 1/2" skin deep on the right ear upper part. 3. The police then converted the case from 307 IPC to 302 IPC and arrested all the four accused persons. During the investigation Gandasi, Dantli and jellies were also recovered at the instance of the accused persons. The police after completing the investigation filed a challan against the three accused appellants in the court of Munsif Magistrate, Sikar, who subsequently committed the case for trial to the Court of Sessions Judge, Fatehpur. The 4th accused was a juvenile and under 16 years of age, as such a separate challan was filed against him in the Childrens Court, which is said to be still pending. 4. The learned Sessions Judge framed charges under Sections 302 and 323 I.P.C. against Mst. Ramkauri and under Section 302/34 and 323 IPC, against the accused Ratan Lal and Mahavir. The prosecution in support of its case, examined 13 witnesses in all. The accused persons in their statements under Section 313 Cr. P. C. denied the incident. The accused Ratanlal and Ram kauri further stated that on the day of the incident in the evening, Laxman and Hardayal were hurling abuses, after taking liquor. Their further statement is that they did not come out of their houses due to the fear of Laxman and Hardayal. P. C. denied the incident. The accused Ratanlal and Ram kauri further stated that on the day of the incident in the evening, Laxman and Hardayal were hurling abuses, after taking liquor. Their further statement is that they did not come out of their houses due to the fear of Laxman and Hardayal. Thereafter, when there was some darkness in the right, Hardayal, Laxman, Sheokanwari and Parmeshwari entered their guwari and made an attack on them on account of which, they sustained injuries. The accused persons also stated that in case Laxman received some injuries in that incident, they were not aware about it. So far as the accused Mahavir is concerned, he took the plea of alibi and stated that at the time of incident he had gone to the house of Admin, who was not on the spot where the incident took place. 5. It may be mentioned at this stage that both the parties are close relations and their houses are situated adjacent to each other in the same courtyard, as is evident from the site memo prepared by the police. Ratan Lal accused is s/o Surja Ram P. W 5. Parmeshwari P. W. 4 is the step sister of accused Ratanlal Sheokanwari is the wife of Hukma Ram, the brother of Surja Ram. Ramkauri accused is the wife of Ratanlal accused and mother of Mahavir and Om Prakash accused persons. Laxman deceased is s/o Hukmaram. Above relationship shows that Ratanlal and Laxman deceased are first cousins and Surja Ram is father of Ratanlal and Sheokanwari is the aunt of Ratanlal 6. Learned Sessions Judge has mainly placed reliance on the statement of Mst. Parmeshwari P. W. 4, who is said to be sister of accused Ratanlal and Surjaram P.W. 5- who is father of Ratanlal and it has been observed that it could not be believed that such near relations would falsely implicate the accused person in such serious offence of murder. It may be mentioned at this stage that Parmeshwari is not the real sister but the step sister of Ratanlal and it is also borne out from the record that Surja Ram and Parmeshwari were residing separately, and not with Ratanlal who was s/o Surja Ram. It may be mentioned at this stage that Parmeshwari is not the real sister but the step sister of Ratanlal and it is also borne out from the record that Surja Ram and Parmeshwari were residing separately, and not with Ratanlal who was s/o Surja Ram. The cause of the incident as alleged by the prosecution is that on the day of incident Ratanlal had hurled abuses on Parmeshwari because the she-goats of Parmeshwari had entered in the bara of Ratanlal. Laxman had remonstrated accused Ratanlal for having given abuses to Parmeshwari and on that Ratanlal had told that he had a right to hurl abuses to his sister Parmeshwari and Laxman had no business to make any objection in this regard. Thereafter the case of the prosecution is that Laxman was taken by force in the guwari of Ratanlal and there, injuries were inflicted by all the four accused persons. 7. Learned Sessions Judge did not believe the defence versions. The injuries found on the body of Ramkauri and Ratanlal accused persons were got examined in the hospital at Ramgarhsethan by Dr. R. S. Dikshit P. W. 13, but the learned Sessions Judge observed that it was not established by the defence that such injuries were received by the accused persons during the incident itself. So far as the fatal injury found on the head of deceased Laxman is concerned, learned Sessions Judge placed reliance on the statement of P. W. 3 Sheokanwari and convicted Ramkauri under section 302 IPC. It may be mentioned that though the learned Sessions Judge convicted Ramkauri u/s 302 IPC but while discussing the evidence of Sheokanwari, it was observed that it was not proved from the statement of Sheokanwari that she had actually seen inflicting an injury by gandasi by Ramkauri on the head of Laxman. The reason for this was that such fact was out mentioned in the F. I. R. Ex. P. 4. It has been further observed by the learned Sessions Judge that it had come in the evidence of Sheokauri as well as the other prosecution witnesses that at the time of the incident there was sufficient darkness and Sheokanwari is an old and aged woman and had also admitted that it was not possible for her to see in the darkness. The learned Sessions Judge then observed that even if it may be accepted that it was not proved definitely that Ramkauri was the author of inflicting head injury on Laxman. even then Ramkauri could be held guilty for offence under Section 302/34 for which it was not necessary to frame separate charge. It is strange that after making such observations. the learned Sessions Judge finally convicted accused Ramkauri under Section 302 IPC and rest of the accused persons under Section 302/34 I.P.C. 8. Mr. Tibrewal learned counsel for the accused appellant submitted that the prosecution has not come out with a true version of the incident The genesis of the incident has been changed and the injuries found on the body of accused persons Ratanlal and Ramkauri remain unexplained. The injuries found on the body of these accused persons has been proved by the prosecutions own witness Dr. R. L. Dikshit P. W. 13. One of the injury found on the body of Ramkauri is of grievous nature. The injuries found on the body of these accused persons are not of superficial nature but were inflicted on vital parts of body like head and there was fracture of one of the phalanges on the hand of Ramkauri. It was also pointed out that these two accused persons were sent for medical examination by the police itself and it was the duty of the prosecution to explain such injuries. Reliance in support of the above arguments has been placed on Lakshmi Singh and others etc. v. State of Bihar, AIR 1976 SC 2263 . 9. It was also argued by Mr. Tibrewal that Duli Chand Dy. S. P. had conducted the investigation in this case but the prosecution failed to examine Duli Chand and adverse inference should be drawn against the prosecution. In this regard reliance is placed on Hirianna Shetty v. State of Mysore, 1972 Cr.L.J. 1976 . 9. It was also argued by Mr. Tibrewal that Duli Chand Dy. S. P. had conducted the investigation in this case but the prosecution failed to examine Duli Chand and adverse inference should be drawn against the prosecution. In this regard reliance is placed on Hirianna Shetty v. State of Mysore, 1972 Cr.L.J. 1976 . It was further argued that the version given by the accused persons is plausible in the facts and circumstances of this case and when the complainant party was aggressor and had come in the guwari of the accused persons and were also armed with weapons as is proved by the injuries found on the body of Ratanlal and Ramkauri, the accused persons were also entitled to act in the exercise of their right of private defence of body and they have not committed any offence. 10. It was also argued by Mr. Tibrewal that there was no previous enmity between the parties and they were closely related and were living in the adjacent houses and there could not have been any intention to cause death of Laxman on a trifle matter of giving abuses to Parmeshwari, even if for the argument sake the story of the prosecution is believed. It was submitted that learned Sessions Judge himself was not sure about the offence of Section 302 having been committed by Mst. Ramkauri and had given a wavering finding and had himself arrived at the conclusion that offence under Section 302/34 is held proved against Ramkauari as Mst. Sheokanwari had a fable eye-sight and was unable to see in the darkness. The learned Sessions Judge had also observed that the fact that Sheokanwari had seen the inflicting of injuries on the head of Laxman by Ramkauri, was not mentioned in the F. I. R. Ex. P. 4. It was submitted that in these circumstances, if Section 302, goes away, there was no case for holding that there was any common intention of accused persons to cause death of Laxman and no conviction at all could be maintained under Section 302/34. 11. It was also argued by Mr. Tibrewal that it was not for the defence to prove by positive evidence the right of private defence and the accused persons are entitled to bring forth circumstances emerging out of the prosecution evidence itself to prove that it was a case of exercise of right to private defence. 11. It was also argued by Mr. Tibrewal that it was not for the defence to prove by positive evidence the right of private defence and the accused persons are entitled to bring forth circumstances emerging out of the prosecution evidence itself to prove that it was a case of exercise of right to private defence. In support of this, reliance has been placed on Lakshmi Singh and others v. State of Bihar (supra) and Yogendra Morarji v. The State of Gujarat, AIR 1980 S.C. 660 . 12. On the other hand, learned Public Prosecutor submitted that the prosecution case is proved to the hilt by the evidence of P.W. 3 Sheokanwari, P.W. 4 Mst. Parmeshwari, P. W. 5 Surjaram, and P. W. 10 Ahmad Ali. It was submitted that no adverse inference should be drawn against the prosecution on account of non-production of the investigating officer Duli Chand. It was submitted that the prosecution has examined A. S. I. Chouthmal P. W. 12 and no prejudice has been caused to the defence on account of non-examination of Duli Chand. 13. It was also argued by the learned Public Prosecutor that even if the evidence of P. W. 3 Sheokanwari may not be believed as an eye-witness to the fact of inflicting fatal head injury on Laxman, it is fully established from the other circumstantial evidence that Ramkauri was armed with a gandasi and the injury on the head can only be attributed to Mst. Ramkauri Learned Public Prosecutor also submitted that it was not necessary for the prosecution to explain the injuries found on the accused persons and no adverse inference can be drawn against the prosecution. 14. We have given our careful consideration to the arguments advanced by learned counsel for the accused persons and the Public Prosecutor and have thoroughly perused the record. 15. As already mentioned above the parties are closely related to each other and were living in the adjacent houses and are Ballais by caste. There is nothing on the record to show that there was any enmity between the parties so as to take the revenge and to cause death of Laxman. Injuries have been found on the body of accused Ratanlal and Ramkauri and those injuries are on the vital parts like head and one of the injuries on Ramkauri is of grievous nature. Injuries have been found on the body of accused Ratanlal and Ramkauri and those injuries are on the vital parts like head and one of the injuries on Ramkauri is of grievous nature. These accused persons had been admittedly sent for medical examination by the police itself and the injuries were examined by Dr. R L. Dikshit, P. W. 13, who is the witness of the prosecution itself. Dr. R. L. Dikshit had examined the injuries and the period of such injuries has been stated to be between 1 to 24 hours. This period clearly corroborates the period of the alleged incident and it was duty of the prosecution to have explained that these injuries found on the body of the accused persons were inflicted not in the alleged incident but in some other incident. Duli chand Dy. S. P., who had conducted the investigation ought to have been examined by the prosecution. Though he was named in the list of prosecution witnesses, but no reason is forth coming as to why he was not examined in Court. This lacuna in the facts and circumstances of the present case goes heavily against the prosecution case and the defence has been certainly prejudiced on account of non-examination of Dulichand. 16. The injury found on the body of Ratanlal and Ramkauri are not of superficial nature and if the same were inflicted on these persons during the alleged incident, it shows that the prosecution witnesses are not truthful and are not coming forward with their true genesis and happening of the incident. 17. So far as the three injuries which have been found on the body of Laxman, two are incised wounds and one is lacerated wound. According to Dr. Yudhvir Singh, injuries No. 1 and 3 i. e. incised wounds, could have been caused by a sharp-edged weapon like gandasi. So far as Dantali, which is alleged to have been in possession of Ratanlal, the case of the prosecution is that incised wounds could have been caused by a weapon like Dantali. Out of the two incised wounds, one is said to be fatal but the other is simple in nature. 18. So far as the third lacerated wound is concerned, prosecution has failed to prove that which are the three remaining accused persons viz Ratanlal, Mahavir or Om Prakash, inflicted that injury. Out of the two incised wounds, one is said to be fatal but the other is simple in nature. 18. So far as the third lacerated wound is concerned, prosecution has failed to prove that which are the three remaining accused persons viz Ratanlal, Mahavir or Om Prakash, inflicted that injury. In our view there was no common intention at all proved by the prosecution in this case that the accused persons had formed any common intention to cause death of Laxman. The incident occurred at the spur of the moment and on a trifle matter and looking to the relation of the parties, it cannot be believed that the accused persons could have formed any common intention to cause death of Laxman even at the spur of the moment. There is only one injury on the head of Laxman which has been proved to be fatal and looking to the nature of other injuries, it cannot be believed that all the accused persons might have formed any common intention specially when according to the prosecution itself the accused persons were not armed with weapons like Dantali, Gandasi and Jellies. In F. I. R. Ex. P. 4 it has not been mentioned that Sheokanwari had seen that Ramkauri had inflicted any injury by gandasi on Laxman. Admittedly, Sheokanwari was having a fable sight and at the time when the incident took place, there was darkness and even the learned Sessions Judge has not believed the statement of Sheokanwari in this regard. Thus the prosecution has failed to connect any one of the accused persons with any particular injury inflicted on Laxman. We have already held that in the facts and circumstances of this case, the prosecution has failed to prove common intention and Section 34 cannot be applied in the present case. 19. Apart from the above circumstances, it has been proved by the accused persons that Ratanlal and Ramkauri had received injuries on the vital parts of their body and Ramkauri had received a grievous injury and in these circumstances they were having a right of private defence of their body and in the exercise of such right if they inflicted the injuries as found on the body of Laxman, they committed no offence. Under Section 100 of the Indian Penal Code, the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailant. If such an assault, may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. 20. In the present case, there was not only apprehension of grievous hurt but actual grievous hurt was caused to accused Ramkauri and in these circumstances if only one blow was given on the head of Laxman, which unfortunately proved fatal, it cannot be said that it was exceeding the right of private defence to the body or the accused persons took advantage of the situation by giving more injuries or acting crudely Sheokanwari, Parmeshwari and Surja Ram are not independent witnesses. Amin, examined on behalf of the prosecution has been declared hostile So far as Amhad Ali is concerned, his statement is not clear and cogent to hold the accused persons guilty for a grave offence like murder. So far as P. W. 12 Chouthmal A.S.I., is concerned, he has not made any investigation in the case and he transferred the case for investigation to police station Ramgarhsethan as the incident came within the jurisdiction of that police station The prosecution cannot absolve its burden by merely producing P. W. 12 Chouthmal and withholding an important witness Duli Chand, who was the main police officer and who conducted the investigation. In our view learned Sessions Judge was not right in observing and placing reliance on the statement of Parmeshwari and Surja Ram, on the ground that they were close relations of Ratan accused and there was no reason for them to falsely implicate the accused persons in a grave offence like murder. The record of the case shows that Parmeshwari was a step sister of accused Ratanlal and was living separately and according to Sheokanwari P. W. 3, Ratanlal accused in the forenoon had hurled abuses on Parmeshwari on the ground that she had entered she-goats inside the barb of Ratanlal. Thus Parmeshwari and Surja Ram, who were living separately from Ratanlal cannot be considered as independent witnesses. 21. Thus taking in view the entire facts and circumstances of the case, we hold that the accused-appellants cannot be held guilty for committing any offence. 22. In the result, this appeal is allowed. Thus Parmeshwari and Surja Ram, who were living separately from Ratanlal cannot be considered as independent witnesses. 21. Thus taking in view the entire facts and circumstances of the case, we hold that the accused-appellants cannot be held guilty for committing any offence. 22. In the result, this appeal is allowed. The judgment of the learned Sessions Judge, Sikar, dated 21.2.1983, is set-aside and all the accused appellants are acquitted of all the charges levelled against them. Ratan Lal and Mahavir accused persons are on bail, as such they need not surrender to the bail bonds and their bail bonds are discharged. 23. Smt. Ramkauri, who is in jail, is directed to be released forthwith, if not required in any other case.Appeal allowed. *******