JUDGMENT 1. - These three appeals have been filed against the judgment of conviction passed by the learned Additional Sessions Jugde No. 2, Alwar, on 6th February, 1986 in Criminal Case No. 1 of 1982 (60 of 1985), whereby the accused-appellants were convicted and sentenced. 2. In D.B. Criminal Appeal No. 78 of 1986, Ram Kishan, Bhajan, Babu, Mulya, Ramesh and Hari Singh are the accused-appellants. In D.B. Criminal Appeal No. 79 of 1986 Kajodi is the accused-appellant. In Criminal Appeal No. 100 of 1986, Nand Lal and Nand Ram are the accusedappellants. Since the above three appeals arise out of the same judgment they have been heard together and are being disposed of by this common judgment. 3. In D.B. Criminal Appeal No. 79 of 1986 Kajodi is the accused-appellant. In Criminal Appeal No. 100 of 1986, Nand Lal and Nand Ram are the accusedappellants. Since the above three appeals arise out of the same judgment they have been heard together and are being disposed of by this common judgment. 3. In these three appeals; the accused-appellants have been convicted and sentenced as under: S. No Name of accused Offence Under Section Sentence awarded -1 Ram Kishan Under Section 302/149 , IPC Imprisonment for life; Under Section 148 , IPC Two year's RI; Under Section 307/149 , IPC Five year's RI- Under Section 325/149 , IPC Three year's RI; Under Section 324/149 , IPC One year's RI; Under Section 323/149 , 447 , IPC Three month's RI; -2 Bhajan Under Section 302/149 , IPC Imprisonment for life; -3 Babu 148 , IPC Two year's RI; -4 Moolia Under Section 325/149 , IPC Three year's RI; Under Section 324/149 , IPC One year's RI; Under Section 323/149 , 447 , IPC Three month's RI; -5 Ramesh Under Section 302/149 , IPC Imprisonment for life; -6 Hari Singh Under Section 147 , IPC One year's RI; Under Section 325/149 , IPC Three year's RI; Under Section 324/149 , IPC One year's RI; Under Section 323/149 , 447 , IPC Three month's RI; -7 Kajodi Under Section 302/149 , IPC Imprisonment for life; Under Section 147 , IPC One year's RI; Under Section 307/149 , IPC Five year's RI; Under Section 323/149 , IPC Three month's RI; Under Section 324/149 , IPC One year's RI; Under Section 325/149 , IPC Three year's RI; and 447 , -8 Nand Lal Under Section 302/149 , IPC Imprisonment for life; Under Section 148 , IPC Two year's RI; Under Section 307/149 , IPC Five year's RI; Under Section 325/149 , IPC Three year's RI; Under Section 324/149 , IPC One year's RI; Under Section 323/149 , 447, IPC Three month's RI; Under Section 27 Arms Act One year's RI; -9 Nand Ram Under Section 302 , IPC Imprisonment for life; Under Section 148 , IPC Two year's RI; Under Section 307/149 , IPC Five year's RI; Under Section 325/149 , IPC Three year's RI; Under Section 324/149 , IPC One year's RI; Under Section 323/149 , 447 , IPC Three year's RI; Under Section 27 of the Arms Act One year's RI. Act. Act. All the: sentences were ordered to run concurrently. 4. Briefly stated the facts of the case are that on 6th September, 1981, at about 9 a.m. one Charani lodged a report at the Police Station, Lachman, Garh, District Alwar, wherein it was alleged that at about 6 a.m. on 6th September, 1981, when Kishan was cultivating his field Nand Ram and Nand Lal, both sons of Kundon, Hiralal son of Mooliya, Ram Pratap and Radhey Shyam both sons of Hiralal, Madan son of Nandapal, Kajodi son of Gheesa, Hari Singh, Bhim Singh, Karan Singh all sons of Brij Mohan Moolya son of Gokul, Ramesh and Charani sons of Shyamlal, Girraj, Shyam Lal, Babu and Ram Kishan son of Ram Chandra, Prabhu son of Ram Chandra, Bhajan son of Prasadi all by caste Aheer residents of village Gopal Pura came to the field of Kishan having lathis, farsis and country made guns and pistols in their hands, with an intention to kill Kishan. It was alleged that Nandram and Nandlal were having guns, Ram Kishan and Bhajan were having country made pistol, Moolya and Babu were having farsis and rest of the accused were armed with lathis. As soon as the accused persons arrived at the field Nandram asked his fellow men to teach Kishan a lesson for giving evidence against him. It was alleged that the accused persons thereafter surrounded Kishan and on hearing cries, first informant namely, Charani, Radhey son of Ganga Sahai, Radhey Shyam son of Ragunath, Ram Khilari, Pratap, Moti, Ramesh, Gorisahay, Kali and Pooran came to Kishan's rescue. The case of the prosecution further is that Mooliya inflicted farsi blow fo Kishan. Babu inflicted a farsi blow on Radhey and Bhajan fired towards Radhey from his country made pistol, which hit on the stomach of Radhey. It was alleged that Hari Singh, Bhim Singh, Madan and Kajodi gave lathis blows on the head of Moti. Ramkishan fired towards Ram Khilari and Radhey Shyam. Nandram fired from his gun of Pratap who died on the spot. Nandlal also fired at Charani. It was alleged that Moti Kishan and Kani were seriously injured and Pratap died on the spot. Kanhaiya Lal Hari, Chhotaka, Prakash and other villagers were mentioned and eye-witnesses in the incident. 5. After completing investigation the police submitted a challan against 16 accused persons. Nandlal also fired at Charani. It was alleged that Moti Kishan and Kani were seriously injured and Pratap died on the spot. Kanhaiya Lal Hari, Chhotaka, Prakash and other villagers were mentioned and eye-witnesses in the incident. 5. After completing investigation the police submitted a challan against 16 accused persons. The Investigating Agency found that three persons were falsely implicated in the case. 6. The prosecution produced as many twenty three witnesses in support of its case, out of whom 11 are injured persons. The accused denied the charges levelled against them and produced evidence in defence. The learned Addl. Sessions Judge, Alwar found nine persons guilty of the charges levelled against them and acquitted seven co-accused persons of all the charges vide his judgment and order dated 6th Feb., 1986. Being aggrieved by this judgment and order, these appeals have been preferred by the nine accused appellants. 7. The learned Counsel for the accused-appellants have submitted that the learned trial court has committed a serious error of law in not properly considering that the First Informant Charni himself has admitted that when he lodged the First Information Report to the police, the police asked him to file another FIR and that by itself establishes that a false First Information Report was sought to be lodged and the accused persons were sought to be implicated falsely, including the appellants. It was also submitted by the learned Counsel for the accused-appellants that the prosecution has miserably failed to explain the injuries on the person of the accused persons. The learned Counsel for the accused-appellants assailed the finding of conviction against the accused-appellants as recorded by the learned Additional Sessions Judge on the ground that all the eye witnesses of the incident happened to be highly interested witnesses as they belong to the party of Kanhaiyalal who was opposed to Nand Ram. The latter had trounced him in the Panchayat Elections. Even the learned trial Court took note of the fact that there was deep political rivalry and factionalism in the village. The learned Counsel for the accused-appellants strenuously urged that the version given by the prosecution witnesses regarding the incident is neither probable nor believable. It was submitted by them that initially the accusation was against 19 persons. The investigation by the police resulted in the finding that three of the accused persons had been falsely implicated. The learned Counsel for the accused-appellants strenuously urged that the version given by the prosecution witnesses regarding the incident is neither probable nor believable. It was submitted by them that initially the accusation was against 19 persons. The investigation by the police resulted in the finding that three of the accused persons had been falsely implicated. The learned trial Court had disbelieved the prosecution case as against seven persons. Thus, out the 19 persons against whom accusations were initially levelled by the complainant party ten stand acquitted or non-prosecuted. In such, circumstances, the learned Counsel for the accused-appellants vehemently argued that conviction cannot be sustained on the evidence that has led to acquittal of several co-accused persons. 8. The learned Public Prosecutor, on the other hand, supported the judgment of conviction and pointed out that the counter-case lodged by the accused persons against the complainant party has resulted into acquittal by the judgment dated 6th February, 1986, passed by the learned Addl. Sessions Judge No. 2, Alwar, in Sessions Case No. 66/86(61/85). 9. We have heard the submissions made by the learned Public Prosecutor and have gone through the record of the case. 10. The following facts are relevant in the case for which seemingly there is no much difference between the prosecution and the defence. (a) That the investigation by the police revealed that Hari, Shyam Lal and Radhey Shyam named in the report of Charni were not present at the place of occurrence. Thus, the challan was filed against 16 persons only when initially the accusation was against 19 persons. The learned Addl. Sessions Judge acquitted seven accused persons, not relying on the evidence of the prosecution. In this view, ten persons stand acquitted or non-prosecuted. (b) It has been clearly established on record that there are two parties in the village; one party is led by Kanhaiyalal i.e. complainant party and the other party is led by Nand Ram. Both Kanhaiya Lal and Nand Ram were contesting elections and Nand Ram has always won the elections. The witnesses produced by the complainant belong to one party and most of them are members of one family. (c) The First Informant Charni himself has admitted that when he lodged the report to the police, the police asked him to file another FIR. The witnesses produced by the complainant belong to one party and most of them are members of one family. (c) The First Informant Charni himself has admitted that when he lodged the report to the police, the police asked him to file another FIR. The report was ultimately filed on the advice of some advocate, as has been deposed by PW 3 Ram Chandra. (d) Appellants Ramesh, Ram Kishan, apart from co-accused Nand Ram also suffered injuries while Ramesh suffered four injuries, including one by sharp weapon. Ram Kishan and co-accused Nand Ram 'suffered seven & ten injuries respectively. The injuries were sustained in the same incident. (e) The investigation also revealed that the parties had been litigating regarding the land in dispute. (f) The prosecution has given out no explanation about the injuries to the accused party. 11. The following are some of the observations which are relevant for considering the merits of the case: (a) In Para 11 of the impugned judgment, the learned trial Court has observed that all witnesses produced by the prosecution, except PW 14 Ramesh Chandra and PW 21 Govind Ram, belong to the party of the complainant and their testimony could not easily be believed; (b) In para 14 of the judgment, the learned trial Court has recorded a rinding that beyond any reasonable doubt it is established that accused Ramesh, Ram Kishan and Nand Lal were imprinted with injuries as per Ex.D 5, Ex.D 6 and Ex,D 7 and the injuries were sustained by them in the same incident; (c) In para 13 of the judgment, the learned trial Court has observed that simply because witness Charni was advised by the police to bring another report, it cannot be inferred that there was any material difference between the two reports; (d) In para 10 of the judgment, the learned trial Court has observed that there is no doubt that all the witnesses produced by the prosecution belong to the party of Kanhaiyalal and that mostly all witnesses belong to one family and, therefore, the testimony of these witnesses requires a carefully scrutiny. The learned trial Court also observed that the prosecution witnesses have denied that they were having any arms with them and that they inflicted any injury on the person of the accused persons; (e) In para 22 of the judgment, the learned trial Judge has observed that the witnesses for the prosecution right from the very beginning have developed a case which is tainted with embellishment. The learned trial Court further observed that the manner in which the prosecution witnesses have described the injuries inflicted by the accused to the party of the complainant clearly reveals that all are deposing like a parrot; (f) In para 25 of the judgment, the learned trial Court recorded a finding that on the appreciation of evidence it cannot be said that Babu, Mooliya, Kajodi and Hari Singh inflicted injuries. 12. Shri Jagdeep Dhankar, learned Counsel for Ram Kishan, Bhajan, Babu, Mooliya, Ramesh and Hari submitted that as per the report Ex.P 15, which is given PW 16 Charni, the allegations are that the accused entered into the field of Kishan with the intention to kill him. In the incident, it is alleged, Nand Ram fired from his gun at Pratap. From this it is evident that there was no intention of any member of the accused party to kill Pratap. From the report Ex.P 15, it is also evident that Pratap came there after hearing the cries of Kishan from his field, along with Radheyshyam, Ram Khiladi, Moti, Ramesh, Gauri Sahai, Kanni, Pooran and others. From this fact it also stands proved that Pratap was neither in a party of the complainant nor in the party of the accused, but was, merely a spectator who came after hearing the cries of Kishan and others to witness the scene or to intervene. The submission of Shri Dhankar is that, thus, the charge levelled against the accused persons that they formed an unlawful assembly to commit the murder of Pratap is not warranted by the facts mentioned in the First Information Report. 13. The main submissions made by the learned Counsel for the accused-appellants are two-fold. The submission of Shri Dhankar is that, thus, the charge levelled against the accused persons that they formed an unlawful assembly to commit the murder of Pratap is not warranted by the facts mentioned in the First Information Report. 13. The main submissions made by the learned Counsel for the accused-appellants are two-fold. Their contention is that since the prosecution has failed to explain injuries on the person of accused Ramesh, Ram Kishan and Nand Ram, which were sustained by them at about the time of the occurrence or during the course of altercation the Court should draw an inference that the prosecution has suppressed the genesis and origin of the occurrence, and has thus has not presented the true version. In the same breath, it was argued by the learned Counsel for the accused-appellants that all the witnesses who have denied the presence of the injuries on the person of the accused are lying on most vital part and, therefore, their evidence is unreliable. Another submission of the learned Counsel for the accused appellants is that the FIR itself is not believable. PW 16 Charni deposed that he had written a report prior to Ex.D 15 and that he submitted the same to the police. The police advised him to bring another report. On the advice of the police, he got a report prepared from Munshi Gangaram and submitted the same to the police. PW 13 Ramesh deposed that the report was got prepared after obtaining the advice of the Advocate of Laxman Garh. He also explained that the report was prepared after seeking counsel from all the persons present there. The learned Counsel for the accused-appellant, thus, urged that on such a report the prosecution cannot be allowed to build its case. It is on record that there were two parties in the village and there was deep political rivlary between them. He also explained that the report was prepared after seeking counsel from all the persons present there. The learned Counsel for the accused-appellant, thus, urged that on such a report the prosecution cannot be allowed to build its case. It is on record that there were two parties in the village and there was deep political rivlary between them. It is also firmly established that three accused namely, Ramesh, Ram Kishan and Nand Ram sustained as many as 21 injuries and there is material on record which leads to the inference that these injuries have been sustained by the accused appellant in the alleged incident and that none of the prosecution witnesses, as pointed out above, even admitted that these accused sustained any injuries on their person PWs 1, 2, 3, 4, 8, 10, 11, 13, 15 and 16 are injured witnesses and PWs 12, 17, 18, 16 and 26 are uninjured witnesses. PW 1 denied having seen any injury on the person of Nand Ram, Ram Kishan and Ramesh. He also denied that none of the persons of the complainant party had any arms with them. PW 2 Pooran has also deposed that no body caused any injury on Nand Ram Kishan, and Ramesh. PW 3, Ramesh, PW 8 Har Sahai, PW 10 Radhey Shyam son of Ganga Sahah, PW 11, Moti PW 13, Kishan and PW 15 Radhey Shyam son of Raghunath also corroborated the testimony of PW 1 Kanni and PW 12 Pooran that they had seen no injury on the person of Ram Kishan, Nand Ram and Ramesh. The learned Counsel for the accused appellants placed reliance on Laxmi Singh v. State of Bihar, AIR 1976 SC 2263 and submitted that the proposition of law laid down in that judgment is applicable to the facts and circumstances of the present case. The injuries sustained by the accused persons as per the statement of PW 7 Dr. Harish Chandra Jain, are as follows:RAMESH: (1) Incised wound 5 c.m. x 1/2 c.m. x 1/2 c.m. on the Parietal region 8 c.m. above the right ear; (2) Reddish contusion 5 cm. x 1 cm. on palmer surface of left hand at the base of thumb; (3) Reddish contusion 6 c.m. x 1 c.m. oblique in face on the front of right angle joint; (4) Reddish contusion 5 c.m. x 1 c.m. outer surface of right elbow joint. x 1 cm. on palmer surface of left hand at the base of thumb; (3) Reddish contusion 6 c.m. x 1 c.m. oblique in face on the front of right angle joint; (4) Reddish contusion 5 c.m. x 1 c.m. outer surface of right elbow joint. RAM KISHAN: (1) Lacerated wound 4 c.m. x 1/2 cm. x scalp deep on fore-head 8 c.m. above the roof of the nose; (2) Lacerated wound 11/2 c.m. x ⅓ c.m. x scalp deep on right forehead 8 c.m. above the right eye brow; (3) Reddish contusion 3 c.m. x 1 c.m. obliquely situated on dorsal surface of 4th and 5th metacorpal bona dorsal surface of left hand; (4) Reddish contusion 18 c.m. x 1 c.m. horizontal on left side of back of upper part; (5) Reddish contusion 7 c.m. on back of left shoulder joint tenderness present; (6) Abrasion 2 c.m. x 1 c.m. on right shoulder joint. (7) Reddish contusion 6 c.m. x 1 c.m. on the right fore-arm upper l/3rd; NAND RAM: (1) Partially healed incised wound 3 c.m. x ⅓ c.m. and scalp region on right side of skull 10 c.m. above the right ear; (2) Bluesh brown contusion 10 c.m. ⅓ cm. oblique on right daltoid region; (3) Bluesh contusion 8 c.m. x 11/2 c.m. on the knee 4 c.m. above the injury No. 2; (4) Bluesh contusion 7 c.m. x 1 c.m. oblique right upper arm in middle part. (5) Partially healed abrasion 1 c.m. x 1/2 c.m. redial surface of lower ⅓ of left forearm; (6) Partially healed abrasion 4 c.m. x 1 c.m. on back of left fore-arm middle; (7) Partially healed abrasion 1 c.m. x 1/2 c.m. ulner surface of lower l/3rd of left forearm; (8) Partially healed abrasion 11/2 c.m. x 1/2 c.m. horizontal on back of left wrist joint; (9) Healed abrasion (partially healed 1/2 c.m. x 1/2 c.m. on back of first interphalyndeal joint of left finger; (10) Abrasion 2 c.m. x 1 c.m. on back of right lumber region. 14. 14. In Lakshmi Singh v. State of Bihar (supra), it has been observed that in a murder case, the non examination of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore, their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. 15. As per Dr. Harish Chandra Jain (PW 7) the injuries were neither superficial nor minor. Thus, the omission on the part of the prosecution to explain the injuries on the person of the accused, in the facts and circumstance of the case assumes much greater importance as the evidence consists of interested witnesses. There is a finding recorded by the trial Court that all the witnesses are interested witnesses and inimical too. In the instant case, when it is held that the appellants, Ramesh, Ram Kishan and Nand Ram received injuries which have not been explained by the prosecution, then it will be difficult for the Court to reply on the evidence of PWs 1, 2, 3, 4, 8, 10, 11, 12, 13 and 14, as these witnesses have denied by stating that they did not see any injury on the said accused persons. In Laxkshmi Singh's case (supra) the Hon'ble Supreme Court did not place any reliance on such witnesses who denied having seen any injury on the person of the accused. It is true that non-explanation of the injuries by the prosecution may not affect the prosecution case where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and dis-interested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. In view of the observations made by the learned trial Court to which we have made references in the judgment, we are of the opinion that it is not a case where the evidence may be held of the character to which the Hon'ble Supreme Court pointed out in Lakshmi Singh's case (supra). In view of the fact that the First Information Report has been lodged after consultation with an Advocate and other persons, the statement of the informant and the report given by the informant cannot be relied upon. It raises a point which is fully supported by the fact that the prosecution itself found no case against the three persons. No challan was filed against them. The FIR also becomes stained as the informant Charni has implicated seven co-accused who have been acquitted by the learned Addl. Sessions Judge. Another thing which has been noticed by the learned trial Court is that the witnesses have made a deposition like parrot and have stated graphically who inflicted injuries upon whom. Even the trial Court took a lot of caution while considering the evidence of the prosecution witnesses. It is true that where a large number of persons make attack, then it is very difficult for any person to state as to whom caused which injury on a particular part of a particular individual. If any person admits to have done so, he may excite grave suspicion with regard to his veracity and credibility, as it is impossible to particularise the blow. In the case in hand the witnesses had stated not only their injuries but the injuries sustained by every person in details, while ignoring the injuries by the accused party. The witnesses were cross-examined and contradicted from their statement Under Section 161, Cr.PC and they admitted that the details were not given by them in their police statement. The learned trial Court did not believe the testimony of the prosecution witnesses while acquitting the seven accused persons. Their testimony, therefore, creates suspicion. Their testimony is not believable as they have suppressed to explain the presence of injuries on the person of accused. The prosecution story also becomes unbelievable as there are improvements in the statements made by the prosecution witnesses, in the trial from their police statement. Their testimony, therefore, creates suspicion. Their testimony is not believable as they have suppressed to explain the presence of injuries on the person of accused. The prosecution story also becomes unbelievable as there are improvements in the statements made by the prosecution witnesses, in the trial from their police statement. Initially the case of the prosecution was that the accused formed an unlawful assembly to kill Kishan; but the charge against the accused was that they formed an unlawful assembly to kill Pratap. When Pratap, in fact, was neither a member of the complainant party nor the accused-party, but was a person who was working in his field and came on the spot cither to witness the scene or to rescue Kishan or any other person. In the altercation there were two groups. He sustained gun-shot injury which was found to be fatal. All the prosecution witnesses are interested witnesses. They did not get support from any independent witness. The independent witnesses have not been examined. 16. We have given our anxious consideration to the evidence of the prosecution and we find that even the learned Addl. Sessions Judge himself felt considerable uneasiness about the evidence of the prosecution witnesses, but got over the uneasiness with an explanation which is not credit-worthy to convict the accused. There are several circumstances in the case which raise reasonable doubt in the mind. It is a case where the prosecution has suppressed the genesis and origin of the occurrence and has failed to present the true version of the occurrence. 17. In Charan Singh v. State of Punjab, (1979) 4 SCC 399 , the facts were injuries on the part of the accused which were not explained by the prosecution. The High Court held that true version of the occurrence was not presented by the prosecution, but still convicted the accused. The Hon'ble Supreme Court observed that the conviction recorded by the High Court was not sustainable and acquitted the accused of the charges framed against him. The High Court held that true version of the occurrence was not presented by the prosecution, but still convicted the accused. The Hon'ble Supreme Court observed that the conviction recorded by the High Court was not sustainable and acquitted the accused of the charges framed against him. The Hon'ble Supreme Court observed as follows: The presence of injuries on the person of the appellants show that there was a clash between them on one side and the complainant party to the other and as such the prosecution has not put forth the genesis and the manner of occurrence correctly and the origin of the fight and such the version given by the prosecution cannot be held to be correct. 18. The Hon'ble Supreme Court further observed as follows: "In short the High Court has clearly found that the prosecution has not presented the true version of the occurrence and it is not possible for the Court to find how the occurrence originated and who was the aggressor. Admittedly, two persons on the side of the prosecution, namely Gulzar Singh and Gurnam Singh had suffered one grievous injury each, similarly five persons on the side of the accused were also injured and two of them had grievous injuries. The High Court also found that it was not a case of free fight. In these circumstances, therefore, it is difficult to hold that the appellant fired a shot from his gun merely to assault Gulzar Singh and not in self-defence particular when the appellant himself had many injuries, one of which was grievous. It is true that the defence case also has not been accepted by the High Court but once there is a probability of the accused having acted in self-defence, that is sufficient to entitle him to an acquittal. 19. The case of the appellants is almost identical to the case of Charan Singh (supra). As discussed above, in this case also, the defence has not been accepted by the learned trial Court; but there is a probability of the accused that they acted in self-defence and, in our opinion, it is sufficient to entitle them to an acquittal. 20. In these circumstances, we are satisfied that the prosecution has not been able to prove its case against the accused-appellants beyond reasonable doubt. The appeals are accordingly allowed. The conviction and sentence of the accused-appellants are set aside. 20. In these circumstances, we are satisfied that the prosecution has not been able to prove its case against the accused-appellants beyond reasonable doubt. The appeals are accordingly allowed. The conviction and sentence of the accused-appellants are set aside. They are acquitted of the offence charged against them. Nand Ram is in jail. He be set at liberty, if not required in any other case. The other accused-appellants are already on bail. They need not surrender to their bail bonds.Appeal allowed. *******