JUDGMENT R.K. Shukla, J. - Criminal Appeal No. 2317 of 1980 filed by Shyam Dhar Misra, Gulabdhar Misra, Shesh Dhar Misra, Kailash Chandra Misra, Pramod Kumar Misra, Manoj Kumar Misra and Sabhapati Misra as well as Criminal Appeal filed by Onkar Misra are directed against the same judgment and order dated 2.10.80 passed by III Additional District and Sessions Judge, Varanasi whereby the learned Sessions Judge has convicted and sentenced Kailash Chandra Misra and Onkar Misra, Appellants, u/s 148 IPC to two years' R. I. each and the remaining six Appellants u/s 147 IPC to one year's R.I. each. Onkar Misra Appellant is further convicted and sentenced, u/s 302 IPC to imprisonment for life and the remaining aforesaid seven Appellants are also convicted and sentenced to life imprisonment u/s 307/149 IPC. Appellant Kailash Chandra Misra was further convicted u/s 307 (later part) and sentenced to 7 years' R. I. and the remaining seven Appellants are also convicted and sentenced to seven years' R.I. u/s 307/149 IPC. All the eight Appellants are further convicted and sentenced to 4 years' R.I. each u/s 325/149 IPC and to a period of one year's R.I. each u/s 323/149 IPC. All the aforesaid sentences were ordered to run concurrently. 2. All the Appellants and Sridhar Misra PW 17 are residents of the same village Kathauta, P.S. Gopiganj, District Varanasi. Except Sabhapati, Appellant, who is their Pattidar all the remaining 7 Appellants and Sridhar Misra PW 17 belong to one very prosperous family. Their interse relationship is quite clear from the following pedigree: Pt. Kashi Prasad Misra /_________________________________________________________________________ / / / / /Laxmi Narain Shyamdhar Gulabdhar Sheshdhar Sridhar alias Rajdhar / | / (PW 17) Pramod | Manoj Kumar | ______________________________________ / / Onkar Misra Kailash Chandra Misra 3. Pt. Kashi Prasad Misra was the head of the family who died on 15.2.75 about an year after this occurrence. Laxmi Narain Misra alias Rajdhar Misra is the eldest brother who is not involved in this case. Sridhar Misra PW 17 is the youngest brother and he is the main man behind the prosecution case against all the aforesaid seven Appellants. Pt. Kashi Prasad Misra and his aforesaid five sons lived in a big Pakka house known as " Kashi Sadan " situate in village Kathauta, P.S. Gopiganj, District Varanasi. Sridhar Misra PW 17 was married to Smt. Shashi Prabha, daughter of Pt. Pt. Kashi Prasad Misra and his aforesaid five sons lived in a big Pakka house known as " Kashi Sadan " situate in village Kathauta, P.S. Gopiganj, District Varanasi. Sridhar Misra PW 17 was married to Smt. Shashi Prabha, daughter of Pt. Amar Nath Dubey, M.L.A. resident of village Kathiyaon, District Varanasi. Complainant Gaya Prasad Dubey alias Bachau Dubey, father of Krishna Chand Dubey alias Babban Dubey PW 11 resident of village Leduka, P.S. Badshahpur, District Jaunpur was a cousin (Mausera Bhai) of the aforesaid Amar Nath Dubey, father-in-law of Sridhar Misra. 4. Brief facts of the prosecution ca e are that previously Pt. Kashi Prasad Misra and his aforesaid five sons constituted a Joint Hindu Family which owned a H.U.F firm known as Kashi Prasad and sons which carried on the business of manufacturing and exporting carpets. Members of the joint family also owned several other firms viz Kashi Prasad and Sons (Export), Gopiganj Cold Storage, Reliance Industries, Modern Brick Centre, Silk International and Vid Advertising which had at-least one representative of each headed by each of the five brothers. As a result of the partition effected amongst the members of the joint family the aforesaid H.U.F. firm was converted into a partnership firm of which Appellant Gulabdhar Misra was the occupier and was responsible for supervising accounts. Appellant Sheshdhar Misra holding a power of attorney also looked after the accounts of the aforesaid partnership firm. It is alleged that irregularities in the maintenance of accounts weie detected for the first time a year or two prior to the year 1969, therefore in 1971 by means of an arbitration agreement the dispute relating to accounts of the main firm as well as other firms was referred to arbitration. Subsequently on 3.11.71 Ashok Misra and Anup Misra, sons of Sridhar Misra, who were the partners in the Firm ' Kashi Prasad and Sons ' gave notice of dissolution of the aforesaid firm Ext ka. 40 as a lesult of which the Appellants got enraged and even held out threats declaring that even if the firm was dissolved, no share would be given to Ashok Misra ard Anup Misra whereupon Ashok Misra sent applications to the Chief Minister and the District Magistrate Varanasi. 5. Apart from above arbitration agreement for accounts of various firms, another arbitration agreement Ext. ka. 5. Apart from above arbitration agreement for accounts of various firms, another arbitration agreement Ext. ka. 41 had taken place to which Pt Kashi Prasad Mi&ra and his aforesaid five sons were parties for referring the disputes concerning Ahatas and other immovable properties foi arbitration. Even after the arbitrators had given their award, Sridhar Misra, PW 17 and his family members were threatened and intimidated by the Appellants in respect ^hereof several reports were lodged with the police against them by Sridhar Misra. It is also alleged that partnership firms, Modern Brick Centre, Gopiganj Cold Storage, Silk International and Vid Advertising were also dissolved by their respective partners by giving notice of dissolution of firms as a result of which the relationship between Sridhar Misra and his family members on the one hand and the Appellants and their family members on the other whicn were already inimical were further embittered. 6. It is further alieged that in the year 1972 when Sridhar Misra installed a Kalsha in his office premises in connection with Navratra Puja, it was thrown away by Appellant Gulabdhar Misra. In respect of that incident a report was lodged with the police by Sridhar Misra After tr t incident Appellant Pramod Misra served a notice dated 1.11.72 upon all the partner? of the firm Kashi Prasad and Sons (Export) for dissolution of the firm. Sevfral litigations were ensued between Sridhar Misra and his family members and Appellants Gu'abdhar Misra and Sheshdhar Misra and their family members. 7. In October. 1973, Appellants Gulabdhar Misra and Sridhar Misra PW 17 contested the election of sarpanch. in that connection, Appellant Gulabdhar Misra and his sons had threatened Sridhar Misra. It was reported to the police by Sridhar Misra. It is also alleged ttrit on 27.10.1973 Appellants Shyamohar Misra, GuUihdhar Misra, Sheshdhar Misra, Kailash Chand Misra, Onkar Misra. Manoj Misra as well as Pradeep Misra son of Sheshdha' Misra Appellant and several other persons raided the business premises of Sridhar Misra and indulged in marpit and looting as a result of which Sridhar Misra was injured. In respect of that incident also a report was lodged by Sridhar Misra at Police Station Gopiganj. The police took no action in the matter and did not even arrest the persons named as accused in the first information report Ext. ka. 18. In respect of that incident also a report was lodged by Sridhar Misra at Police Station Gopiganj. The police took no action in the matter and did not even arrest the persons named as accused in the first information report Ext. ka. 18. Thereafter Sridhar Misra filed a complaint in court against the aforesaid persons, a certified copy whereof is Ext. ka. 49 on the record. 8. Sridhar Misra in his individual capacity carried on business under the name and style of Sridhar Carpets Private Ltd. This firm had dealings with foreign customers. This flourishing business carried on by Sridhar Misra was an eye-sore to the Appellants and they became jealous of him. 9. On the night between 10th and Uth February 1974 in pursuant to an order passed by S.D.M. Gyanpur the first floor of the Guest House was sealed by the Police which made Sridhar Misra bitterly inimical towards Appellants before the occurrence. 10. Thereafter the prosecution case is that Krishna Chand Dubey alias Babban Dubey PW 11 started frequently staying with Sridhar Misra in village Kathauta and on the day preceding the day of incident also he was staying with him. On 31.3.74 Gaya Prasad Dubey alias Bachau Dubey, Devi Prasad PW 15, Lalta, Ram Daur and Jabbar servant of Gaya Prasad Dubey, all residents of village Leduka, District Jaunpur had gone to Vindhyachal for Darshan. All of them while returning back from Vindhyachal reached Chilhghat at about 6.30 P. M. As it had become late, therefore on the suggestion of Gaya Prasad Dubey complainant all of them proceeded to village Kathauta for their night stay and there he would also be able to meet his son Babban Dubey. All of them left Chilhghat by a bus. After getting down at Gopiganj, they proceeded to village Kathauta where they reached at about 9.30 or 10 p. m. aud aiter taking their meals they slept on the Khatanja lying infront of the Guest Houje towards east. 11. Then the prosecution stoiy is that next morning i. e. on 1.4.74 at about 6.30 a. m. while Sridhar Misra PW 17 was sitting in the Varandah of the Guest House in front of his office along with Gaya Prasad Dubey and Krishna Chand Dubey, all the eight Appellants accompanied by two or three unknown persons came there raising shouts and hurling abuses. Oui of them Kailash Misra and Onkar Misra were each armed with a country made pistol and the rest were carrying lathis. Seeing them coming Sridhar Misra came out of the Varandah and remonstrated to the Appellants. Whereupon Appellants Shyamdhar Misra, Uuiabdhar Misra and Sheshdhar Misra started belabouring him with their lathis. Gaya Prasad Dubey and his sot. Krishna Chand also came out to rescue Sridhar Misra. Then Shyamdhar Misra and Gulabdr-ar Misra exhorted their companions to kill Sridhar Misra. On their exhortation, Appellant Kailash Chand Misra fired a shot towards Sridhar Misra with, his pistol which, however missed the target as he was pushed aside by Krishna Chandra Dubey, who however sustained fire-arm injury on his right arm. Thereafter Sridhar, Gaya Prasad Dubey and Babban Dubey were assaulted with lathis. Devi Prasad, Vesudeo Sini/a, Lalta, Jabbar and Ram Daur tried to rescue the victims by taking out Bamboo rods from the bundles of v.ool lying nearby and plied them. They were also assaulted by the Appellants. On being exhorted by Shyamdhar Misra, Kailash Cha^a Mfcra and Onkar Misra fired shots with their pistols. The shot frcd by Kailash Chand Misra hit Babban Dubey on his back and Vashudeo Singh v,aa hit aud injured by the shot fired by Oakar Misra. Vashudeo Singh rau away from the scsne of occurrence and died at a place lying at a distance of about five furiong from the scene of occurrence near village Girai. The occurrence is said to have been witnessed besides the victims by Ram Krishna Misra, Radhey Shyam Shukla, Chandrabali, Achchaibar Pandey and others of village Kathauia. 12. A written first information report of this incident was lodged on 1.4.74 at 3.50 P.M. at P.S. Kotwali Varanasi by Gaya Prasad Dubey complainant who died in the year 1977 during trial, hence could not be produced. Along with the written report injury reports of Gaya Prasad Dubey and his son Babban Dubey were also filed. As the place of incident fell within the circle of police station Gopiganj the aforesaid first information report and injury reports were sent to Police Station Gopiganj through constable Tahir Hussain On receipt of the papers at Police Station Gopiganj a case was registered in the general diary at serial No. 34 of which Ext. ka. 37 is the copy. 13. ka. 37 is the copy. 13. It appears that soon after this occurrence at 6.30 a. m. a telephonic message by Shyamdhar Misra Appellant was received at Police Station Gopiganj which was recorded in the general diary copy of which is Ext. ka. 32. On receipt of this message S.I. Ram Janam Singh DW 1 accompanied by some police officials including A.S.I. Khudi Ram left for the scene of occurrence There from inside the Varandah of the Guest House, 10 pellets and Tikli were recovered in respect whereof a memo Ext ka. 30 was prepared. Blood stains were also found on a heap of sand lying outside the Verandah, which were taken into possession vide memo Ext. ka. 31. 14. S.I. Kharag Bahadur Singh DW 3 was deputed to hold inquest on the dead body which was found lying near village Girai. He prepared the inquest report Ext. ka. 62 Chalan Ext. ka. 63 and diagram Ext. ka. 64 of the dead body and despatched the dead body to the mortuary for post-mortem examination through constable Vijainath Dubey PW 23 and constable Rama Shanker Singh. An empty cartridge K. F. special long range 12 bore made in India was also found near the body of Vashudeo Singh deceased. Recovery memo in respect of that is Ext. kha. 8 on the record. 15. On 2.4.74 at about 8.45 a. m. instructions were received at Police Station Gopiganj from the Superintendent of Police (Rural Area) Varanasi on telephone that the case would be investigated by the C.I.D. On the request of the S.S.P. Varanasi Inspector S.N. Saxena, PW 22, C.B., C.I D. Lucknow was entrusted with the investigation of this case under the orders of the Inspector General of Police U.P. Inspector S.N. Saxena started investigation under the supervision of S.M. Zaidi Dy. S. P. Crime Branch C.I.D. Lucknow. Sri Saxena and Sri Zaidi came to Varanasi on 4.4.74 and met S.P. (R. A.) Varanasi. On 5.4.74 the Investigating Officer PW 22 proceeded to Gopiganj where he inspected the records of police station Gopiganj. He then went to Gyanpur where statement of Vishwanath Rai, Circle Officer was taken down. Thereafter he went to village kathauta and inspected the scene of occurrence and prepared a site plan of which Ext. ka. 60 is the true copy. Pellet marks on the wall of the ground floor of the Guest House were discernible. He then went to Gyanpur where statement of Vishwanath Rai, Circle Officer was taken down. Thereafter he went to village kathauta and inspected the scene of occurrence and prepared a site plan of which Ext. ka. 60 is the true copy. Pellet marks on the wall of the ground floor of the Guest House were discernible. One of the pillars of the Varandah had blood stained marks on it. Outer portion of another pillar was colour-washed with Gerue was also stained with blood. He took in possession blood stained and ordinary Gerue and lime from the aforesaid two pillars and a piece of blood stained gunny-bag vide memo Ext. ka. 25 to ka. 28 and ka. 61. 16. Statement of Sridhar Misra PW 17 was recorded on 7.4.74 and on 8.4.74 statements of other witnesses were recorded inside Sub-jail Gyanpur with the permission of the Judicial Magistrate. Sri Saxena investigated this case upto 14.4.74. Thereafter investigation of this case was picked up by Sri S.M. Zaidi Dy. S.P. PW 19 under the orders of the D.I.G. C.I.D. dated 19.4.74. The post-mortem examination report in respect of Vashudeo Singh, deceased was sent to Medico Legal Expert, U.P. Lucknow for his opinion through a covering letter Ext. ka. 58. On completion of the investigation charge sheet Ext. ka. 59 was submitted in court against the Appellants on 31.12.74. 17. The post-mortem examination on the dead body of Vashudeo Singh was performed by Dr. R.N. Gupta PW 4 Medical Officer Government Hospital Bhadohi. The age of the deceased was estimated to be 48 years and in the opinion of the doctor about 30 hours had elapsed since his death. The body was well built and Rigor mortis was present in the lower limb. The following ante mortem injuries were found on the dead body of Vashudeo Singh: (1) Lacerated wound 2.5 cm x 1 cm x bone deep on left side of head 9 cm above the ear. (2) Multipe fire-arm wounds about 1/4 cm in diameter in an area of 25 cm x 17 cm on right side of chest. Margins were inverted, echymosed and slammed from 2 cm to 4 cm apart chest wall to cavity deep. (3) Two fire-arm wounds round 1 cm in diameter, 2.5 cm apart on the lower part of chest (right) along the axillary line. Margins are inverted echymosed and slammed. Chest cavity deep. Margins were inverted, echymosed and slammed from 2 cm to 4 cm apart chest wall to cavity deep. (3) Two fire-arm wounds round 1 cm in diameter, 2.5 cm apart on the lower part of chest (right) along the axillary line. Margins are inverted echymosed and slammed. Chest cavity deep. (4) Eight fire-arm wounds 1 cm in diameter in an area of 12 cm x 10 cm on the back of right elbow region bone and muscle deep. Margins inverted, echymosed and slammed black. Distance of wounds ranging from 1 cm to 6 cm. (5) Four fire-arm wounds round with averted margins (exit wound) 8 cm to 1 cm in diameter in an area of 8 cm x 6.5 cm on the inner and lower third part of the right fire-arm communicating in depth with injury No. 4 (wound of entry) Distance from 1 cm to 6 cm from each other. (6) Lacerated wound 2 cm x 3/4 cm x 3/4 cm on the front and middle of left leg. 18. On an internal examination of the dead body, pleura was found punctured at several places. About half litre of blood was present in the cavity. There were multiple punctured wounds on right lung half cm. in diameter on upper and lower lobes under injuries No. 2 and 3. 19. The doctor extricted 9 pellets from the dead body and kept them in a sealed packet. In the opinion of the doctor the death was caused due to shock and haemorrhage as a result of injuries No. 2 and 3. Ext. Ka-20 is the post mortem report prepared by the doctor. 20. On 1.4.1974 at 8.30 A.M. Shridhar Misra (PW 17) was examined by Dr. A.N. Khan (PW 4) Medical Officer, in-charge-Primary Health Centre Gopiganj who found 11 injuries on his body caused by some blunt weapon which are noted down in his injury report (Ext. Ka-ll). Except injuries No. 5 and 8 which were kept under observation all the other injuries were simple in nature. Injuries No. 5 and 8 were X-rayed on 3.4.1974 under the supervision of Dr. K.C. Tandon (PW 2) and the report showed fracture of matacarpel bone of right thumb and ulna bone of left fore-arm in the lower half. 21. Ka-ll). Except injuries No. 5 and 8 which were kept under observation all the other injuries were simple in nature. Injuries No. 5 and 8 were X-rayed on 3.4.1974 under the supervision of Dr. K.C. Tandon (PW 2) and the report showed fracture of matacarpel bone of right thumb and ulna bone of left fore-arm in the lower half. 21. On the same day at 9.40 A.M. the same doctor examined Devi Prasad (PW 15) and found 8 injuries on his body which are noted down in his injury report Ext. Ka. 13. Except injury No. 4 all the orher injuries were simple in nature and all were caused by some blunt weapon. X-ray plate No. 5 and X-ray report prepared by Dr. K.C. Tandon showed fracture of left ulna bone in the lower third part. 22. Jabbar was also examined by the same doctor on the same day at 10 A.M and 5 simple injuries caused by some blunt object were found on his body which are noted down in his injury report Ext. Ka. 14. 23. Ram Daur was also examined by the same Dr. Khan on the same day at 10.15 A.M and 4 simple injuries swelling and one abrasion on his body were found which are noted down in injury report Ext. Ka. 15. 24. Lalita was examined by Dr. Khan at 10.30 A.M. and 7 simple injuries 4 swellings and 3 abrasions were found on his person which are noted down in his injury report Ext. Ka. 16. 25. Dr. V.B. Tandon (PW 3) Medical Officer S.S.P.G. Hospital Varanasi examined Krishna Chand Dubey (PW 11) at 10 A.M. on 1.4.1974 at Varanasi and found 7 injuries on his body. Out of which injuries Nos. 1, 4, 5 and 6 were simple caused by some blunt weapon and remaining three injuries were caused by fire arm and were kept under observation. The same doctor (PW 3) examined Gaya Prasad, complainant at Varanasi on the same day at 11.15 A. M. and found 2 contusions and one abrasion on his body. Injury No. 3 was kept under observation rest were simple in nature. There injury reports are Ext. Ka. 8 and Ext. Ka. 10 respectively. Dr. K.C. Tandon PW 2 X-rayed the aforesaid injuries of those two injured which revealed fracture of left humerus bone at lower end of Gaya Prasad Complainant Ext. 1 and Ka. Injury No. 3 was kept under observation rest were simple in nature. There injury reports are Ext. Ka. 8 and Ext. Ka. 10 respectively. Dr. K.C. Tandon PW 2 X-rayed the aforesaid injuries of those two injured which revealed fracture of left humerus bone at lower end of Gaya Prasad Complainant Ext. 1 and Ka. 3 are the X-ray plate and X-ray report relating to Gaya Prasad, X-ray of Krishna Chand revealed small circular radio opaque foreign body shadow large in number in chest, abdomen and right arm, Ext. 2 is his X-ray plate and Ext. 4 is X-ray report. 26. On the side of the Appellants Gulabdhar Misra, Pramod Kumar Misra, Manoj Kumar Misra and Kailash Chand Misra were also injured in the same incident. The^r injury reports are Ext. Kha. 1 to Ext. Kha. 4 on the record. All of them were examined by the same Dr. Khan who examined Sridhar Misra and others on the prosecution side. 27. Appellant Gulabdhar Misra was examined by Dr. Khan (PW 4) on 1.4.1974 at 11 A.M. who found 6 injuries, 3 contusions, 2 abrasions and one swelling on his body. 28. Pramod Kumar Misra Appellant was also examined on the same day at 11.15 A.M. by Dr. N. A. Khan (PW 4) Medical Officer, who found 11 injuries 10 contusions on the upper portion of body including head and one fire-arm wound-on his body. Except injury No. 11 all were simple. Injury No. 10 was kept under observation. 29. Manoj Kumar Appellant was also examined by the same Dr. Khan (PW 4) at 11.30 A.M. on the same day and he found two types of injuries- one swelling and complain of pain over his body. 30. Kailash Chand Misra Appellant was examined by the same Dr. Khan at 11.40 A.M. on the same day and he found three injuries, namely, 2 abrasions and complain of pain in various part of his body. Injuries are simple in nature caused by blunt weapon. 31. After completing investigation, charge-sheet was submitted against all the Appellants and the case was committed to Sessions Court for trial where all the accused were charged under various sections as aforesaid. We went to make it quite clear at the outset that the charges were not properly framed by the learned Sessions Judge. 31. After completing investigation, charge-sheet was submitted against all the Appellants and the case was committed to Sessions Court for trial where all the accused were charged under various sections as aforesaid. We went to make it quite clear at the outset that the charges were not properly framed by the learned Sessions Judge. There is a legal distinction between a charge u/s 302 IPC and a charge of constructive liability u/s 302/149 IPC. Appellant Oakar Misra was charged only u/s 302 IPC simpliciter and no charge u/s 302/149 was framed against him. Similarly Kailash Chandra Misra appellent was charged u/s 307 IPC simpliciter and no charge u/s 302/149 was framed against him. The remaining seven Appellants have been charged on each count u/s 302/149 IPC and u/s 307/149 IPC respectively. There is clear distinction between 'intention' and 'common object'. If Onkar Misra and Kailash Chandra Misra Appellants were not sharing the common object with the remaining Appellants on both counts, it cannot be said that the common object of the unlawful assembly of 8 Appellants was the same. Thus the charges were not properly framed. But no objection has been raised from either side, therefore we proceed to decide this case on merit. 32. The prosecution has examined 23 witnesses in support of its case, out of whom Krishna Chandra Dubey (PW 11), Devi Prasad (PW 15) and Shri- dhar Misra (PW 17) are the eye witnesses of the incident and the rest of the witnesses are the aforesaid doctors, Investigating Officer, Medico Legal Expert (PW 21) and other formal witnesses. 33. All the Appellants denied the prosecution version of the occurrence and claimed to have been falsely implicated in the case due to enmity. Gulabdhar Misra Appellant has given the defence version of the occurrence in detail in his statement u/s 313 Code of Criminal Procedure and has also filed a written statement reiterating the defence version of the occurrence. According to his statement (Gulabdhar Misra) Pt. Kashi Prasad Misra and his five sons constituted a joint Hindu family until 15 or 20 years ago. He admitted that being senior most partner in the firm Kashi Prasad and Sons he was its occupier under the Factories Act, but he denied that he used to maintain accounts of the firm. According to his statement (Gulabdhar Misra) Pt. Kashi Prasad Misra and his five sons constituted a joint Hindu family until 15 or 20 years ago. He admitted that being senior most partner in the firm Kashi Prasad and Sons he was its occupier under the Factories Act, but he denied that he used to maintain accounts of the firm. According to him, Sridhar Misra (PW 17) who bad power of attorney in his favour was the Manager of the firm and was responsible for keeping accounts. Tracing out the history of dispute and differences between Shridhar Misra and his brothers it was stated by Gulabdhar Misra Appellant that the differences between Sridhar Misra and his brothers started in the year 1971. He admitted arbitration agreement for referring the dispute regarding accounts of the firm and election of Sarpanch between Sridhar Misra and himself. Gulabdhar was elected Sarpanch. He had denied police influence and threats held out to Sridhar Misra during election. However he has admitted that the first floor of the Guest House was sealed by the police in proceedings u/s 147 Code of Criminal Procedure. According to him Sridhar Misra used to look after the art'airs of the firm Kashi Prasad and Sons and also used to visit foreign countries to book orders for the firm. In 1971 Sridhar Misra went abroad on behalf of firm Kashi Prasad and Sons but he booked orders for supply of carpets for his own firm Sridhar Carpets. On this Gulabdhar Misra Appellant remonstrated to Sridhar for having surreptitiously booked orders for his own firm and asking him that those orders should be treated as having been booked on behalf of the firm Kashi Prasad and Sons. Sridhar Misra did not agree to the aforesaid suggestion. Thereafter in order to settle the dispute five arbitrators were appointed who gave their award but the same was not accepted by Sridhar Misra who then dissolved all partnership firms in which he or any member of his family was a partner. According to this Appellant his father Pt. Kashi Prasad executed a will in the year I969 in favour of all his sons but in the year 1973 this will was revoked by Pt. Kashi Prasad who executed a fresh will in favour of three Appellants viz. Gulabdhar Misra, Shyamdhar Misra and Sheshdhar Misra. Pt. According to this Appellant his father Pt. Kashi Prasad executed a will in the year I969 in favour of all his sons but in the year 1973 this will was revoked by Pt. Kashi Prasad who executed a fresh will in favour of three Appellants viz. Gulabdhar Misra, Shyamdhar Misra and Sheshdhar Misra. Pt. Kashi Prasad has partitioned some of his land between him and five sons. He (father) used to cultivate the land which fell in his share. Sridhar Misra wanted to take land allotted to his father. Guest House was in use of all the five brothers where their guests used to stay. Sridhar Misra wanted to take exclusive possession over the Guest House and to harvest wheat crop sown by his father in village Girai. 34. Prior to this occurrence one day during night some outsiders came and stayed in the first floor of the Guest House while some of them remained standing below near the stair case. A report was lodged with the police whereupon the police came and sealed the first floor of the Guest House. Thereafter on the night between 31st March and 1st April 1974 some outsiders came from village Leduka District Jaunpur. Some of them started cutting the aforesaid wheat crop in village Girai while others who were 10 or 12 in number entered the compound of Kashi-Sadan on 1.4.1974 at about 5 A.M. when Gulabdhar Misra came out of his house for morning walk, he was shot at by one of the outsiders present in the compound. The shot hit the electric bulb fitted in the bracket fixed just above the door. Gulabdhar Misra Appellant escaped unhurt but the pellets of the shot hit the bulb which was broken into pieces. Thereafter Gulabdhar was belaboured by those persons. On his cry two night watch-men, his servants and son Pramod Kumar came to the scene of occurrence. Some of the culprits caught hold of Pramod Kumar and dragged him towards the Guest House and then assaulted him. During the altercation and marpit the culprits as well as servants of Gulabdhar who had come to his rescue got intermingled in the crowd. In the meantime one of the culprits fired a shot at Gulabdhar which however hit Krishna Chand Dubey and Pramod Kumar. Gulabdhar also stated that none of his side had any fire-arm. During the altercation and marpit the culprits as well as servants of Gulabdhar who had come to his rescue got intermingled in the crowd. In the meantime one of the culprits fired a shot at Gulabdhar which however hit Krishna Chand Dubey and Pramod Kumar. Gulabdhar also stated that none of his side had any fire-arm. On hearing the noice the five outsiders who were cutting wheat crop ran from the field towards north west. They were pursued by villagers who succeeded in apprehending four of them. The fifth man, namely Vasudeo Singh ran towards village Girai where near a pond he was shot by somebody. He fell down there and died. Gulabdhar Misra has also sent a written 6rst information report on the same day at 9.50 A.M. at P.S. Gopi-ganj. On that written report a case crime No. 97 u/s 147/148/149/307/324/323 IPC was registered. A copy of chik report of the first information report is Ext. Ka. 34 on the record. A cross case was started against the opposite parties on that report. 35. In support of this defence, Appellants have produced six witnesses, namely Ram Janam Singh DW 1 first Investigating Officer, Dr. J.P. Saxena DW 2 Medico Legal Expert, Khadag Bahadur Singh S.I. DW 3, Jang Bahadur DW 4, servant of Shyamdhar Misra Appellant Suraj Bali Singh, servant of Pt. Kashi Prasad, Dr. Raj Narain Gupta DW 6 who performed the post mortem of Vasudeo Singh deceased. They also filed several documents in support of their defence which will be referred wherever it is needed. 36. After discussing the evidence on record the learned Sessions Judge has convicted all the aforesaid eight Appellants and sentenced them as mentioned above. Against the judgment these two appeals have been filed in this Court which are being disposed of by this common judgment. 37. Sri C.S. Saran and Sri P.C. Chaturvedi counsel for the Appellants have vehemently urged firstly that the prosecution has miserably failed to prove its case against the Appellants beyond reasonable doubt but the learned Sessions Judge has gone out of his way in convicting the Appellants on imaginary grounds in support of which there is no evidence on the record. Sri C.S. Saran and Sri P.C. Chaturvedi counsel for the Appellants have vehemently urged firstly that the prosecution has miserably failed to prove its case against the Appellants beyond reasonable doubt but the learned Sessions Judge has gone out of his way in convicting the Appellants on imaginary grounds in support of which there is no evidence on the record. Secondly that it has also failed to explain the aforesaid injuries of the five Appellants received in the same incident, and the trial court has rejected the plea of self defence without applying his mind to the relevant law as well as the facts and circumstances of this case. In support of their contentions the learned Counsel for the Appellants have relied on Parbhoo and Others Vs. Emperor, AIR 1941 All 402 , Rishi Kesh Singh and Others Vs. The State, AIR 1970 All 51 and Bala Prasad Dhansukh Vs. State of Madhya Pradesh, AIR 1961 MP 241 . 38. It has been held by a 9 Judges Full Bench decision of this Court in Rishikesh Singh's case (Supra) that the majority decision of Prabhu's case (Supra) is still good law. The accused person who pleaded an exception is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of general exception) a reasonable doubt is created in the mind of the court about the guilt of the accused. In paragraph 87 of the Report in Rishikesh Singh's case (Supra) it has also been observed by Justice D.S. Mathur speaking for majority that though not so expressed Prabhu's case appears to have been followed in Bala Prasad Dhan Shukh's case (Supra) by Madhya Pradesh High Court. This inferance was drawn by Justice Mathur from the following observations made in paragraph 21 of the Report in Dhan Sukh's case (Supra) which reads as under: In all such cases as soon as such evidence is introduced, which if believed, would establish the circumstances on which the defence may rely to bring his case under any of the exceptions etc. the burden of the accused is discharged. It is equally discharged when on a consideration of the whole of the evidence the court is left in doubt as to whether the killing may have been under the circumstances disclosed in the evidence on record. 39. the burden of the accused is discharged. It is equally discharged when on a consideration of the whole of the evidence the court is left in doubt as to whether the killing may have been under the circumstances disclosed in the evidence on record. 39. The concept of "proved" "disproved" and "not proved" as defined in Section 3 of the Evidence Act, compress a great deal of judicial wisdom with history and processes of evolution and development behind them which have not yet ended. The term "burden of proof" is not defined in the Evidence Act or else where and cannot be fully understood without an exposition of its place and meaning in our procedural law as a whole. 40. We find that the term "burden of proof" as used in English Law, both at the time when Sir James Fit Ziames Stephen drafted the Act and also today carries within it two meanings which are indicated in Phipson on Evidence (10th Ed.) at pages 43 and 45 respectively as under: As applied to judicial proceedings the phrase 'burden of proof has two distinct and frequently confused meanings (1) the burden of proof as a matter of law and pleading, the burden as it has been called of establishing a case, thereby preponderance of evidence beyond a reasonable doubt and (2) the burden of proof in the sense of introducing evidence. It is in the second sense that the term is more generally used and must be applied in the following pages and while the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly according as one scale of evidence of the other preponderates. 41. Whenever the law places a burden of proof upon a party a presumption operates against it. Hence burden of proof and presumptions have to be considered together. When there is ample evidence from both sides, the fact of the case is no longer determined by presumptions or burden of proof, but by a careful selection of the correct version, based on doubt, on preponderance of probabilities which has to be so compulsive or overwhelming in the case of a choice in favour of a conviction as to remove all reasonable doubt. Burden of proof and presumption may become decisive again in cases where evidence is equally balanced. Burden of proof and presumption may become decisive again in cases where evidence is equally balanced. Thus their function is decisive only in cases where there is paucity of evidence on either side or the evidence as given by the two sides is equi-balanced. Neither a burben of proof nor a rebuttable presumption can be used for excluding any evidence. That is not their function at all but of other provisions of law. 42. In the light of the observations of the Full Bench of this Court when we proceed to examine the merit of the prosecution case, we find that both sides have lodged first information reports of this incident. Date of occurrence and enmity between Sridhar Misra PW 17 and the aforesaid 7 Appellants are not disputed. There is only one and half hour difference between the time alleged by both the parties. The presence and participation of the outsiders in the incident, namely Gaya Prasad, Kishan Chand, Devi Prasad, Jabbar, Ram. Daur Yadav and Lalta Yadav of village Leduka, District Jaunpur on the side of Sridhar Misra are also not disputed. It is also not disputed by the parties that the place from where the body of Vasudeo Singh (deceased) was found is situate at a distance of 5 furlongs from Kashi-Sadan. Injuries received in this incident on the aforesaid persons of both the sides are also not disputed. Admittedly all the seven Appellants except Sabhapati and Sridhar Misra PW 17 belong to one very prosperous family of village Kathauta. The only difference in their versions is about the manner of marpit and place of firing at Vasudeo (deceased). According to prosecution case, the whole occurrence took place at the Guest House situate in the compound of Kashi-Sadan. But according to the defence version the occurrence took place partly at Kashi-Sadan and partly at Wheat field in village Girai quite close to village Kathauta as well as near Pokhra of village Girai where the body of Vasudeo Singh (deceased) and an empty catridge Ext. kha. 8 was found. On the side of prosecution Vasudeo Singh (deceased), Gaya Prasad complainant, Sridhar Misra PW 17, Devi Prasad PW 15 Jabbar, Lalta and Ram Daur Yadav are injured. On the side of defence Appellants Gulabdhar Misra, Pramod Kumar, Manoj Kumar and Kailash Chandra Misra are injured. kha. 8 was found. On the side of prosecution Vasudeo Singh (deceased), Gaya Prasad complainant, Sridhar Misra PW 17, Devi Prasad PW 15 Jabbar, Lalta and Ram Daur Yadav are injured. On the side of defence Appellants Gulabdhar Misra, Pramod Kumar, Manoj Kumar and Kailash Chandra Misra are injured. Time of occurrence is not seriously disputed by the parties, but no first information report was lodged from the side of the complainant at Gopiganj soon after the occurrence. A written report Ext. ka. 1 was lodged at PS Kotwali, Varanasi by Gaya Prasad after 9 hours. Police Station Gopiganj is quite close to village Katbauta at a distance of only 2 1/2 furlongs but no first information report was lodged either by Sridhar Misra or Gaya Prasad complainant, inspite of repeated reminders by Ram Janam Singh DW 1 the first Investigating Officer and other police Officers to Sridhar Misra PW 17. 43. On the other hand it has come on the record that Shyamdhar Misra Appellant phoned to Police Station Gopiganj just after the occurrence at about 6.35 a. m. on 1.4.74 which was recorded in the general diary of police at Rapat No. 9. Thereafter first Investigating Officer Ram Janam Singh reached at Kashi-Sadan within 15 minutes after the receipt of aforesaid information by Shyamdhar Misra. He met Shyamdhar Misra and told both the parties that they should make report about this incident. On this, Sridhar Misra told " Achha ". Thereafter the first Investigating Officer DW 1 went to the Circle Officer to inform him and returned to village Kathauta second time at about 9.30 a. m. Even then he met Sridhar and enquired from him whether he has made any report or not. Whereupon Sridhar told him " Achha Karta Hon ". On the side of Appellants, Gulabdhar Misra lodged a written first information report at about 9.50 a. m. on 1.4.74, copy of which reached to the Investigating Officer DW 1 at the place of occurrence at about 11.30 a. m. on the same day. The Investigating Officer found the electric bulb, just above the name plate of Kasbi-Sadan, broken and he took some pieces of broken bulb in his possession and made a recovery memo. The Investigating Officer found the electric bulb, just above the name plate of Kasbi-Sadan, broken and he took some pieces of broken bulb in his possession and made a recovery memo. He also took in custody four persons, namely, Jabbar, Ram Daur, Devi Prasad and Lalta, all residents of village Leduka, P.S. Badalpur District Jaunpur who were caught on the sopt by the villagers. On this report a cross case State v. Sridhar Misra started. 44. It has been vehemently urged on behalf of the Appellants that according to the prosecution case motive of the Appellants was to kill Sridhar Misra but no First Information Report was lodged by Sridhar inspite of several reminders by the Police of Gopiganj and it was lodged by Gaya Prasad resident of village Leduka after 9 hours at Kotwali Varanasi after consultations and deliberations with the lawyers. 45. After careful scrutiny of the facts and circumstances of this case we find some force in this argument. When Sridhar Misra was asked about this delay he only said that he told orally to Circle Officer but it does not find support from any police witness. On the other hand Ram Janam Singh, first Investigating Officer DW 1 has clearly stated that inspite of aforesaid two reminders Sridhar Misra did not lodge any report. The statement of DW 1 finds full corroboration from the statement of Khadag Bahadur Singh PW 2. They have clearly stated that Sridhar Misra did not lodge any written report inspite of repeated reminders. It appears that due to arrest of four persons of village Leduka and murder of Vasudeo Singh, Sridhar Misra was not in a position to decide what stand he should take in this matter. Thereafter, he did not lodge any report and it was lodged after consultations and deliberations at Kotwali Varanasi after 9 hours. This delay of 9 hours in lodging the first information report is so long that it throws a cloud of suspision regarding the truthfulness of the version of the prosecution case. 46. There is no doubt that the prosecution story has been supported by three injured eye witnesses, namely, Krishna Chand Dubey PW 11, Devi Prasad PW 15 and Sridhar Misra PW 17 but there are inherent improbabilities, material variations, improvements and contradictions in their statements due to that it is not safe to uphold the conviction of the Appellants on their testimony. Except Sridhar Misra who is highly inimical towards Appellants, no witness of the locality has come forward to support the prosecution oase. Krishna Chand Dubey PW 11, Devi Prasad PW 15 belong to village Leduka, District Jaunpur. Devi Prasad was arrested by the villagers and handed over to the Investigating Officer DW 1 along with Jabbar, Ram Daur and Lalta of village Leduka. It is mentioned in the first information report itself that this occurrence was witnessed by Ram Kishan Misra of the same village, Radhey Shyam Shukla of the neighbouring village Rampur, Achhaibar Pandey and many other of the locality but none of them have come forward to support the prosecution case. It appears that they were not prepared to support the story set up by the prosecution that Vasudeo Singh (deceased) was shot at Kashi-Sadan as alleged by the prosecution. 47. All the aforesaid three eye witnesses have emphatically stated that only Onkar Misra Appellant shot one fire and caused injuries on the body of Vasudeo Singh (deceased) at Kashi-Sadan and thereafter Vasudeo Singh ran away, fell down and died. It has come in the statement of Investigating Officer Sri Sheo Narain Saxena PW 22 and in the report Ext. ka. 58 that the place from where the dead body of Vasudeo was recovered is at a distance of 5 furlongs. The Investigating Officer Sri Sheo Narain Saxena has stated that the distance is about 1000 steps from Kashi-Sadan which also comes to the same. There is no dispute about this distance of 5 furlongs which is mentioned in the report Ext. ka. 58 sent to the Medico Legal Expert for his opinion. 48. Sri C.S. Saran, counsel for the Appellants vehemently urged that it is impossible that after receiving the aforesaid one lacerated wound on the hand and one lacerated wound on the leg as well as multiple gun shot injuries on hand and on the chest, Vasudeo Singh could run upto 5 furlongs, he would have instantaneously died on the spot. 48. Sri C.S. Saran, counsel for the Appellants vehemently urged that it is impossible that after receiving the aforesaid one lacerated wound on the hand and one lacerated wound on the leg as well as multiple gun shot injuries on hand and on the chest, Vasudeo Singh could run upto 5 furlongs, he would have instantaneously died on the spot. In support of his contention he relied on the following observations made in Modi's Medical Jurisprudence and Toxicology 1983 Edition at page 279 which reads as under: Wounds of the lungs may be immediately fatal from profuse haemorrhage, or from suffocation due to respiratory embarrassment on account of the presence of blood in the pleural cavity or in the air-passages, or may result in death subsequently from septic pneumonia. 49. After careful scrutiny of the evidence on record, we find some force in this argument. It is clear from the injury reports as well as from the post mortem reports that Vasudeo Singh had received one lacerated wound on his head and one lacerated wound on his leg. He had also received multiple fire arm wounds 1/4 cm in diameter in an area of 25 cm x 17 cm on right side of chest, two fire-arm wounds round 1 cm in diameter on the lower part of the chest cavity deep, 8 fire-arm wounds 1 cm in diameter in an area of 12 cm x 10 cm on the back of right elbow region bone and muscle deep and four fire-arm wounds (exit wound) 8 cm to 1 cm in diameter in an area of 8 cm x 6.5 cm on the inner and lower third part of right fore-arm. 50. On an internal examination of the dead body of Vasudeo Singh pleura was found punctured at several places corresponding to injury Nos. 2 and 3. About half litre of blood was found present in the cavity. There were multiple punctured wounds on right lung half cm in diameter on upper and lower lobes under injuries No. 2 and 3 of the deceased. 51. The doctor extricated 9 pellets from the dead body and kept them in a sealed packet. In the opinion of the doctor the death was caused due to shock and haemorrahage as a result of injuries No. 2 and 3 noted down in the postmortem report Ext. ka. 20. 52. 51. The doctor extricated 9 pellets from the dead body and kept them in a sealed packet. In the opinion of the doctor the death was caused due to shock and haemorrahage as a result of injuries No. 2 and 3 noted down in the postmortem report Ext. ka. 20. 52. Doctor R.N. Gupta PW 10 who conducted the post mortem examination on the body of Vasudeo Singh has clearly stated in his examination in chief as DW 6 under: Yadi chot lagte he ya chot lagne ke samay mritak chal pare ye daur pare to ek do sanso ke lene tak wah kuch dur ja sakta hai. Wah karib 100 kadam tak ja sakta hai. No question was put to him in the cross-examination on behalf of the State. Dr. Radha Mohan, State Medico Legal Expert has also stated as under: Is admi ka phephra pleura bhi punctured ho gaya tha. In choton ke lagne ke bad mritak ko safocation dhire dhire develop hua hoga. 53. In the cross-examination he has clearly admitted that after receiving the aforesaid all injuries the deceased could run upto 1, 2 or 3 furlongs, thereafter when he was asked that he had not written in his report that the deceased could run 1, 2 or 3 furlongs only after receiving the aforesaid injuries the doctor could not give any reason. 54. Dr. J.P. Saxena DW 2 Medico Legal Consultant, Lucknow has stated that the deceased had received one lacerated wound on his head and two fire-arm wounds on his thorax. After receiving these injuries the injured could not even walk 2-4-5 furlongs. He also gave 4 scientific reasons in support of this opinion which are as under: * * * * In cross-examination he has stated that injury No. 1 which was a lacerated wound inflicted on the left side of head could not be said to be simple and further gave out that any head injury irrespective of its nature as a rule, cannot be treated as a simple injury. However, when reminded of the definition of ' grievous hurt ' he had to concede that injury No. 1 would be treated as simple. In our opinion the cross-examination was not fair to him in putting the definition of ' grievous hurt ' as defined in Section 20 of Indian Penal Code. However, when reminded of the definition of ' grievous hurt ' he had to concede that injury No. 1 would be treated as simple. In our opinion the cross-examination was not fair to him in putting the definition of ' grievous hurt ' as defined in Section 20 of Indian Penal Code. In our opinion the said injury can come under Clause Eighthly of Section 20 IPC according to which any hurt which endanger life can be described as ' grievous hurt '. The doctor has further stated that a lacerated wound caused on head would necessarily cause concussion (stunning) and immediate recovery from concussion was generally not possible. This Doctor was emphatic that in this particular case even if the injured was mentally pre-occupied at the time of receiving the injury and was greatly excited he could not have performed any act of volition and could not have walked. He has clearly stated that he has not come across any case in which any injured who had pellet in his lungs came to hospital walking. If there is haemorrhage due to injury in lungs then the movement of injured will be immediately reduced. In view of such evidence we find difficult to uphold the finding of the learned Sessions Judge that even after sustaining such gun shot injuries it was possible for the deceased to run upto 5 furlongs. There is no such clear finding. Even the learned Sessions Judge has not clearly held that Vasudeo Singh could run upto 5 furlongs. Thereafter in our opinion on this point the finding of the learned Sessions Judge is not correct and cannot be accepted by us. 55. The learned Sessions Judge has given another reason for recovery of the body of Vasudeo Singh at a distance of 5 furlongs from Kashi-Sadan. He has held that police was under the influence of accused Shyamdbar Misra on the possibility that the dead body was planted at that place in a bid to create evidence in favour of the accused cannot be ruled out. There is even no suggestion to any witness that body of Vasudeo Singh was removed from Kashi- Sadan to the place of its recovery. On the other hand eye witnesses have stated that Vasudeo Singh ran away. His body was recovered at a distance of 5 furlongs near a Pokhra towards the disputed wheat field. There is even no suggestion to any witness that body of Vasudeo Singh was removed from Kashi- Sadan to the place of its recovery. On the other hand eye witnesses have stated that Vasudeo Singh ran away. His body was recovered at a distance of 5 furlongs near a Pokhra towards the disputed wheat field. Under these circums tances we have no doubt in our .mind that the learned Sessions Judge has gone out of his way to hold that the body of the deceased could be planted by the Appellants in a bid to create evidence in favour of the Appellants. In our opinion this is a perverse finding which cannot be sustained. 56. Not only this, the statements of the aforesaid three eye witnesses regarding the manner of causing fire-arm injuries on Vasudeo Singh, deceased, by Onkar Misra is flately contradicted by the medical evidence. According to prosecution case Vasudeo Singh was shot by Onkar Misra only once but gun shot injuries of Vasudeo Singh definitely indicate that they must be result of atleast 2 shots or it may be 3 shots caused by fire-arm. It is clearly mentioned in the post-mortem reports aswell as in the statement of Dr. R.N. Gupta (PW 10) that injury No. 2 with multiple fire-arm wounds was surrounded by 1 cm in diameter while injury No. 4 with 8 fire-arm wounds was on the back of right elbow region 1 cm in diameter in an area of 12 cm x 10 cm. This is possible by one gun shot as stated by the eye witnesses. Different sized pellets may be found in one cartridge but it cannot be that only 9 pellets of 3/4 cm in diameter will go in chest and 8 pellets of 1 cm in diameter will go in the right elbow. It is impossible to imagine. The learned Government Advocate could not give any reply and fairly conceded that it cannot be the result of one gun-shot. This is an intrinsic piece of evidence which clearly falsified the statements of the witnesses that Onkar Misra fired only one shot on Vasudeo Singh. 57. In view of the above discussions, in our opinion the prosecution has miserably failed to prove its ease beyond reasonable doubt that Vasudeo Singh (deceased) was shot by Onkar Misra only once at Kashi-Sadan. This is an intrinsic piece of evidence which clearly falsified the statements of the witnesses that Onkar Misra fired only one shot on Vasudeo Singh. 57. In view of the above discussions, in our opinion the prosecution has miserably failed to prove its ease beyond reasonable doubt that Vasudeo Singh (deceased) was shot by Onkar Misra only once at Kashi-Sadan. On the other hand the evidence on record probabilises the defence version that Vasudeo Singh was shot by somebody else near Pokhra while he had gone with his other colleagues to cut away the aforesaid disputed wheat crop sown by Pt. Kashi Prasad. 58. The next point vehemently urged by the learned Counsel for the Appellants is that the complainant's side was the aggressor and the learned Sessions Judge has wrongly held otherwise. Both the sides have lodged first information reports of this incident and cross cases were started against both the parties Admittedly there was bitter enmity between Sridhar Misra (PW 17) and aforesaid 7 Appellants regarding possession of the Guest-House as well as possession of wheat field sown by Pt. Kashi Prasad Misra, father of Sridhar Misra (PW 17) as well as the aforesaid three Appellants. It has also come in evidence that 10 or 15 days before this occurrence there was some dispute regarding possession of Guest House. A report was lodged with the police and upper portion of the aforesaid Guest House was sealed by the police under the order passed by Sub-Divisional Magistrate u/s 147, Code of Criminal Procedure. Regarding possession of wheat field the version given by Sridhar Misra (PW 17) that the wheat crop standing in chak No. 41 was jointly harvested by all the brothers has been disbelieved by the learned Sessions Judge himself. 59. It is not disputed that 5 outsiders, namely, Debi Prasad, Krishna Chand (PW 11), Jabbar, Ram Daur Yadav and Lalta of village Leduka district Jaunpur participated in this incident on behalf of Sridhar Misra (PW 17). The story of these outsiders that they had gone to Vindhyachal for Devi-Darshan and stayed at village Kathauta while returning back from there appears to us a cock and bull story invented after consultations and deliberations with the lawyers at Varanasi during 9 hours delay in filing the first information report on behalf of the complainant. The story of these outsiders that they had gone to Vindhyachal for Devi-Darshan and stayed at village Kathauta while returning back from there appears to us a cock and bull story invented after consultations and deliberations with the lawyers at Varanasi during 9 hours delay in filing the first information report on behalf of the complainant. Devi Prasad (PW 15) is wholly unreliable witness and no reliance can be placed on his statement. We find it difficult to believe this that the aforesaid outsiders including Jabbar a Mohammadan went to Vindhyachal for Devi Darshan and came back to stay at village Kathauta situate at a distance of 30 or 40 kilometers from Vindhyachal. After careful scrutiny of the evidence on the record and looking at the circumstances of this case we are favourably inclined to accept the arguments advanced on behalf of the Appellants that the aforesaid outsiders were brought by Sridhar Misra (PW 17) to take forceful possession of the Guest House as well as the wheat field sown by Pt. Kashi Prasad Misra. Admittedly Pt. Kashi Prasad Misra by his second Will dis-entitled Sridhar Misra from inheritance of his property. Therefore there was bitter enmity between the parties due to these reasons. Under these circumstances participation of 5 outsiders, namely Debi Prasad, Krishna Chand, Jabbar, Ram Daur Yadav, Lalta in this incident and recovery of broken bulb and gun shot marks on the wall of the Guest House clearly indicate that the complainant's party was aggressor. 60. No reliance can be placed on the statements of eye witnesses. No trace of blood was found between Kashi Sadan and the place where the dead body of Vasudeo Singh was lying. There is material improvement in the statements of eye witnesses regarding the use of weapon by complainant's side in this marpit. In the first information report it is shown that complainant's side used lathis but in the trial court that plea was given up and it was replaced by the use 'Chalauna' only. Not only this the aforesaid injuries found on the bodies of Gulabdhar Misra, Pramod Kumar Misra, Manoj Kumar Misra and Kailash Chandra Misra Appellants have not been satisfactorily explained. There is no explanation of a gun shot injury found on the body of Manoj Kumar Misra Appellant. 61. Not only this the aforesaid injuries found on the bodies of Gulabdhar Misra, Pramod Kumar Misra, Manoj Kumar Misra and Kailash Chandra Misra Appellants have not been satisfactorily explained. There is no explanation of a gun shot injury found on the body of Manoj Kumar Misra Appellant. 61. In view of the above discussions following the ratio of Rishikesh Singh's case (supra) we are fully satisfied that the prosecution has miserably failed to prove its case against all the Appellants beyond reasonable doubt. On the other hand the Appellants have succeeded in probabilizing their plea of self defence. Therefore their convictions and sentences against all the charges are not justified and are liable to be set aside. 62. In the result both the appeals are allowed. The convictions and sentences of all the Appellants namely, Shyamdhar Misra, Gulabdhar Misra, Sheshdhar Misra, Kailash Chandra Misra, Manoj Kumar Misra, Pramod Kumar Misra and Sabhapati Misra of Criminal Appeal No. 2317 of 1980 and Appellant Onkar Misra of Criminal Appeal No. 2318 of 1980, against all the charges levelled against them are set aside. They are on bail and need not surrender. Their bail bonds are cancelled and sureties discharged.