A. N. DIKSHITA, J. ( 1 ) APPELLANTS (1) Bbagwan Das son of Gaya (2) Chhathu son of Nagessar (3) Thakur son of Bhagwan Das (4) Chhotey Lal son of Panchu (5) Babu lal son of Chhathu (6) Ram Briksha son of Shiv Baran (7) Shiv Baran son of Nagesar and (8) Manan son of Gamsh, have preferred this appeal against the judgment and order dated 8. 2. 1979 passed by III Addi. Sessions Judge Basti in Sessions Trial No. 264 of 1977 convicting the appellant No. 1 Bhagwan Das under section 304 (2), I. P. C. and sentencing him to undergo 7 years R. I. , under section 149, I. P. C. 1 years R. I. and under section 323/149. I. P. C. 6 months R. I. The sentences were to run concurrently. Appellants Nos. 2 to 8 namely, Chhathu, Thakur, Chhotey, Babu Lal, Ram Briksha, Shiv Baran and Manan have been convicted under section 147, I P. C. and sentenced to a period of 1 years R. I. These appellants were further convicted under section 323/149, I P. C. and sentenced to 6 months R. I. The sentences to these appellants (Nos. 2 to 8) were to run one after another. ( 2 ) THE prosecution story as is revealing from the record is that one Ram Deo had litigation with Chhathu son of Nagesar Yadav. The field of Chhathu was sown by Ram Deo. The dispute was referred to Panchayat which directed measurements of the field and thereafter it was found that 5 biswas of land vested in Chhathu. It was also resolved in the Panchayat that after harvesting the crop Ram Deo would leave the land. On 26/3/1975 Ram Deo has harvested the crop and bad kept on the western side of the village in the. Khalihan. On 26/3/1975 around 6 p. m. when Ram Dea and his brother Sbahdeo were present in the Khalihan, au the appeuants named above wielding lathi, hallam and Gandasa reacbed the spot with a common intention and told Ram Deo as to why he is harvesting the crop of Chhathu. Ram Deo replied that because he has sown the crop, hence he is harvesting it. A verbal scuffle ensued. Suddenly Bhagwan Das exhorted, hurling abuses, to give a thrashing to Ram Deo and his men. Bhagwan Das and other persons, shown above, started assaulting Ram Deo and Shahdeo with latm. Ram Deo replied that because he has sown the crop, hence he is harvesting it. A verbal scuffle ensued. Suddenly Bhagwan Das exhorted, hurling abuses, to give a thrashing to Ram Deo and his men. Bhagwan Das and other persons, shown above, started assaulting Ram Deo and Shahdeo with latm. On the cries of Shabdeo, Sita Ram son of Basanta, Jagdish son of Ram Deo, Baldeo son of Bahrechi, Hem Raj son of Parmatma, Lolai son of Matadia Yadav and Naresh son of Budboo Yadav reached the spot running. Bhagwan Das and his men also assaulted these persons. Ram Deo, Shabdeo and his men also used lathi and Ballam in their self defence causing injuries to the party of Bhagwan Das. On receiving lathi blow from Bhagwan Das, Ram Deo fell on the ground. However, on account of persuasion at the instance of the villagers Bhagwan Das and his men ran away. While Shahdeo was bringing Ram Deo on a cot to the Police Station, he expired on the way in village near Pauli. Sbabdeo and other members of his party also received many injuries. A written report of the incident was lodged by Shahdeo with the Police at P. ( 3 ) GHANGHATA on 27. 3. 75 at 5 p. m. The distance of village Rampur from the P. S. Ghanghata is about 12 miles. 3. Another report was lodged by Chhathu son of Nagesar about the same incident on 27. 3. 75 at 5. 30 a. m. wherein it was stated that Chhathu was having litigation in regard to the agricultural land with Ram Deo. It has been mentioned that the matter was referred to the Panchayat which has resolved that whatever land vests in favour of the respective claimants would be handed over to them. Chhathu was given around 15/16 biswas of agricultural land from the land which was in possession of Ram Deo. On 26. 3. 1975 around 6 p. m. Ram Deo, Jagdish, Shahdeo, Sita Ram and Baldeo were harvesting the crop. Chhathu enquired of them as to why they were harvesting the crop which was sown by him. It was also explained that the matter has already been resolved by the Panchayat. However a verbal scuffle ensued and persons of the party of Ram Deo attacked Chhathu and his men with Bhala. Baldeo inflicted a Bhala injury in the right abdomen of Chhathu. It was also explained that the matter has already been resolved by the Panchayat. However a verbal scuffle ensued and persons of the party of Ram Deo attacked Chhathu and his men with Bhala. Baldeo inflicted a Bhala injury in the right abdomen of Chhathu. On his raising noise, Sheo Baran, Chhotey Lal, Panchu Yadav, Thakur, Bhagwan Das, Babu Lal, Ram Briksha, Shiv Baran, Manan, Triloki and Sarajoo rushed to the spot to save Chhathu and his men, but they were also assaulted. Jagdish inflicted a ballam injury to Manan and other persons were assaulted with lathis. In self defence Chhathu and his men also used lathi. ( 4 ) THE injured were sent to Sadar Hospital at Basti. Sita Ram was examined on 27. 3. 1975 at 8 a. m. by Dr. B. N. Singh, who was posted at P. H. C. Haiser Bazar and found the following injuries on his body: Injury: Lacerated wound 1 cm. X 0. 5 cm. present on the right side of scalp. 12 cm. about the fragus of right ear. Injury is simple in nature. Duration about half day. ( 5 ) BALDEO was examined by the same doctor on 27. 3. 75 at 8 a. m. and the following injuries were found on his body. Injuries: (1) Red contusion 15 cm. X 2 cm. present on the lower part of both sides of back 22 cm. below the angle of left scapula. (2) Red contusion 8 cm. X 2 cm. present on the left side of the back 2 cm. above injury No. 1. (3) Red contusion 1 cm. X 7 cm. present on the right side of back 8 cm. below the injury No. 1. All the injuries were simple. They were caused by some blunt weapon. Duration about half day. ( 6 ) SHAHDEO was examined by the Same Doctor on 27. 3. 75 at 8. 15 a. m. and the following injury was found on his body. Injury: Lacerated wound 5 cm. X. 5 cm. present on the right side of the scalp 10 cm. above the right ear. Injury is simple in nature caused by hard blunt object. Duration about half day. Injured Chhathu was examined by the same Doctor on 27. 3. 75 at 8. 45 a. m. and the following injuries were found on his body. Injuries: (1) Punctured wound 0. 5 cm X 0. above the right ear. Injury is simple in nature caused by hard blunt object. Duration about half day. Injured Chhathu was examined by the same Doctor on 27. 3. 75 at 8. 45 a. m. and the following injuries were found on his body. Injuries: (1) Punctured wound 0. 5 cm X 0. 5 cm X 1. 5 cm. on the upper part of the right side abdomen 11 cm. above the umblious and 14 cm. below the right side of nipple. (2) Complain of pain on his right shoulder it, but no external injury found. Injury caused by sharp pointed weapon, kept under observation and referred to Sadar Hospital Basti. Duration half day. ( 7 ) INJURED Manan was examined on 27. 3. 75 at 9 a. m. by the same doctor and the following injuries were found on his body. (1) Punctured wound 0. 5 cm. x 0. 25 cm. x 0. 5 cm. present on the interior part of right thigh upper part 37 cm. above upper part of petella. (2) Abrasion 4 cm. x. 25 present on the lateral part of root of neck and 9 cm. from the left and of clavicle. (3) Contusion 2 cm. x. 15 cm. present on the dorsum of the middle finger of the left hand. 5 cm. above the tip of the same finger. (4) Abrasion 2. 5 cm. x 0. 25 cm. present on the lateral side of the right arm 9cm. above the lateral part of the right elbow joint. (5) Contusion 3 cm. x 2 cm. present on the lateral side of the left leg 33 cm. below the lateral part of the left knee joint. The injuries are simple in nature and caused by hard blunt object except injury No. 1 which is caused by pointed weapon. Duration of half day. ( 8 ) INJURED Chhote Lal was examined on 27. 3. 75, at 9. 15 a. m. by the same doctor and the following injuries were found on his body. Injuries: (1) Lacerated wound 5 cm. x 0. 5 cm. present on the interior part of middle of scalp 14 cm. above the tip of nose. (2) Contusion 3. 5 cm. x 2 cm. present on the upper part on the right side of back 11 cm. above the interior angle of right side of scalp. Injuries: (1) Lacerated wound 5 cm. x 0. 5 cm. present on the interior part of middle of scalp 14 cm. above the tip of nose. (2) Contusion 3. 5 cm. x 2 cm. present on the upper part on the right side of back 11 cm. above the interior angle of right side of scalp. (3) Complains of pain on his left leg, no external sign of injury. All the injuries are simple in nature, caused by hard blunt object, duration of one and half day. ( 9 ) INJURED Ram Briksha was examined by the same doctor on 27. 3. 75 at 9. 30 a. m. and the following injuries were found on his body. Injuries: (1) Contusion 2 cm. x 1. 5 cm. present on the dorsum of index finger of the right hand 4 cm. above the tip of the right index finger. (2) Complains of pain on his back but no external injury visible. ( 10 ) INJURIES are simple in nature and caused by blunt object. Duration of about half day. ( 11 ) INJURED Bhagwan Das was examined by the same doctor on 27. 3. 75 at 9. 45 a. m. and the following injuries were found on his body. Injuries: (1) Lacerated wound 0. 5 cm. x 0. 5 cm. in the right side and interior part of the scalp 13 cm. above the tranger of right ear. (2) Lacerated wound 1. 5 cm. x 0. 25 cm. present on the outer part the left side of scalp 14 cm. above the trangers of the left ear. (3) Contusion 2. 5 cm. x 1. 5 cm. present on the dorsum of the, left palm on the lateral side 8 cm. above the tip of the thumb of the left hand. All the injuries are simple in nature and caused by hard blunt object, duration of about half day. ( 12 ) ON 27. 3. 1975 post mortem examination on the body of Ramdeo was conducted by Doctor D. P. Mukherji who found the following ante mortem injuries on his body. Injuries: (1) Lacerated wound 3 cm. x 0. 5 cm. x 0. 3 cm. left side head, 10 cm. above left scar and 18 cm. above left eye brow. The case was investigated by P. W. 6, S. I. Kameshwar Rai and a chargesheet was filed against the appellants. Injuries: (1) Lacerated wound 3 cm. x 0. 5 cm. x 0. 3 cm. left side head, 10 cm. above left scar and 18 cm. above left eye brow. The case was investigated by P. W. 6, S. I. Kameshwar Rai and a chargesheet was filed against the appellants. The appellants denied the charge and were put on trial and convicted and sentenced as stated above. ( 13 ) BEFORE proceeding to scan the evidence in this case, it would be significant to mention that from the side of the complainant Sita Ram had received 1 injury, Baldeo 3 injuries Shahdeo 1 injury. All these injuries were caused by a blunt weapon in the opinion of the doctor. Appellant Chhilthu received two injuries-one of them was a punctured wound caused by a sharp edged weapon. Manan, appellant, received 5 injuries including one punctured wound caused by pointed weapon. Appellant Chhotey Lal received 3 injuries. Bhagwan Das received 3 injuries. Chhotey Lal and Bhagwan Das had the injuries caused by blunt weapon. It would thus be clear that the complaint and his men received 5 injuries in all as stated above. While the appellants received 15 injuries in all. ( 14 ) IN support of the prosecution case, Shah Deo who had lodged the first information report was examined as P. W. 1. He had testified the facts as detailed in the F. I. R. It has been admitted by P. W. 1 Shahdeo that Ram Deo, deceased, had sown the field of Chhathu Pradhan had admeasured the field. After harvesting the crop, the land was to be returned to Chhathu. When the field was being measured, wheat crop was standing thereon. This witness has further stated that Pradhan had said that after the harvesting of the crop whosoever would be found entitled would be given the land. This fact does not find mention ill the F. I. R. The F. I. R. version is at variance with the statement of this witness which reveals that 5 biswas of land fall to the share of Chhathu and it was also decided in the Panchayat that after harvesting of the crop, the land would be left by Ram Deo and would be given to Chhathu. This witness while supporting the allegations as contained in the F. I. R. , has said that after Bhagwan Das exhorted his men to give a thrashing to Ram Deo and his men, all the appellants fell on them. He admits that Chhathu gave a lathi blow to him, while Bhagwan Das gave a lathi blow on the head of Ram Deo. P. W. 1 Shahdeo, Ram Deo and Sita Ram received the lathi blows. However, he further states that in self protection all the persons took an Ankhain/thuni and gave blows causing injuries to the appellants. It transpires from the statement of this witness that he is not coming forward to depose the truth as in the FIR. He has stated that in self defence Ram Deo, Shahdeo and other men had used lathi and ballam. While in his statement Akhain/thooni bas been substituted for lathi and ballam. This witness has also stated that no ball am blows were inflicted on the person of the other side including the Chhathu and Manan but in the report it is mentioned that the other side had received such injuries on account of Ballam and lathi, though used in self protection. No doubt P. W. 1 has received a lathi blow but implicit reliance can not be placed on his testimony and it is manifest that he is trying to improve upon the case of marpit or is concealing certain facts which otherwise are such so as to discredit his testimony. ( 15 ) P. W. 2 Lolai has corroborated the prosecution story and has supported the version of P. W. l Sbahdeo. The truthfulness of his statement and testimony also deserves to be discarded on the ground the testimony of P. W. 1 Shabdeo has been discarded. It is very surprising that this witness though present on the spot did not see that any of the appellants had received lathi or bal/am injuries. He has no doubt admitted that both the parties were engaged in the marpit. He has further admitted that Baldeo had fallen in the field. However, this witness has categorically denied that he was ever interrogated by the Investigating Officer. It is thus clear that this witness is a trumped up witness only to support his men against the appellants. He has no doubt admitted that both the parties were engaged in the marpit. He has further admitted that Baldeo had fallen in the field. However, this witness has categorically denied that he was ever interrogated by the Investigating Officer. It is thus clear that this witness is a trumped up witness only to support his men against the appellants. It will be very difficult to place any reliance much less implicit on the statement of P. W. 2 Lolai. ( 16 ) P. W. 3 Hemraj has also corroborated the prosecution version and he has stated that the persons of the complainants side had used Akhain/thooni in self defence thus causing injuries to the other side (appellant ). He admits that he never gave statement to the 1. 0. that ballam was used. His testimony hardly inspires confidence and implicit reliance can be placed on his evidence. It also deserves to be discarded for the reason on which the testimony of PW. I Sbahdeo, P. W. 2 Lolai had been discarded. ( 17 ) P. W. 4, Sita Ram while corroborating the prosecution story and the statement of P. W. I Shahdeo, P. W. 2 Lolai and P. W. 3 Hemraj has admitted that Akhain/thooni is a pointed and a little surgical weapon. He has admitted that on the raising of the noise by Shahdeo, be had rushed to his field along with Baldeo, Jagdish, Hemraj, Lolai and Naresh. It has been stated by him that all the appellants were present in the field and on the exhortation of Bhagwan Das all the appellants fell on the persons of the complainant side. Bhawan Das gave a lathi blow to Ram Deo, while other appellants bet Sita Ram Baldeo and Sahdeo. He has very circuitously stated that in self defence Shahdeo too had used the Akhaill/thooni. He has admitted that this, Akhain/thooni is of wood. He has admitted that he had also inflicted injuries on the other side with thooni but he was unable to set-forth the I name of that person. He was categorically stated that no bhala was ever used on the complainants side. The statement of this witness thus contradicts the allegations as setforth in the First Information Report. ( 18 ) ANOTHER starting feature in this case is that blood had fallen on the ground. He was categorically stated that no bhala was ever used on the complainants side. The statement of this witness thus contradicts the allegations as setforth in the First Information Report. ( 18 ) ANOTHER starting feature in this case is that blood had fallen on the ground. The mar pit is being shown in the field which was sown by Ram Deo. However, blood was found in the field of Mananand the 1. 0. P. W. 6 Kameshwar Rai had admitted that blood was found in the Khailihan and this blood was of Manan. It has also been admitted by this witness P. W. 6 Kameshwar Rai that blood of Chhathu was found in his field. It is thus clear that the place of marpit had been shifted. ( 19 ) LEARNED counsel for the appellant Shri G. P. Mathur has very vehemently urged that there is no explanation from the side of the complainant as to how injuries were caused on the person of the appellants. It is indeed a very important circumstance. Apparently the prosecution seems to have suppressed either the origin of the occurrence or its genesis. True version is not forthcoming. Another factor which may not escape notice is that the witnesses appearing on behalf of the prosecution have tried to conceal the injuries that were sustained by the appellants. This only mitigates the veracity of their testimony. It is the case of the prosecution that the two parties had entered into a marpit. The prosecution can not be absolved of its duty to explain the injuries received by the appellants and merely mentioning that few of the prosecution witnesses had used lathi, ballam or Akhainfthooni in self-protection appears to be a version which is most incomprehensible and highly unreliable. As has been stated above, the persons on the side of Bhagwan Das had received injuries numering 15, while the complainant and his men had received only 3 injuries Baldeo has not been produced to support the prosecution version. As has been stated above, the persons on the side of Bhagwan Das had received injuries numering 15, while the complainant and his men had received only 3 injuries Baldeo has not been produced to support the prosecution version. In the case Lakshmi Singh v. State of Bihar, it has been held: In a murder case the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in course of altercation is a very important circumstance from which the court can draw the following inference: (i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (ii) 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; (iii) 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, and (iv) that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance whether the evidence consists of interested or inimical witnesses or whether the defence gives a version which competes any probable with that of the prosecution one. Identical view was also taken in the case Mittar Sen v. State of U. P. In the case of Brahma Singh v. State of U. P. 3, the Honble Supreme Court has held: In an incident of the nature which took place, it is not always easy to weight in scales, as which were, how much harm or damage should be inflicted. In the absence of any explanation on the part of the prosecution as to how the injuries came to be sustained by Brahma Singh, it would be legitimate to conclude not only from his statement but also from all other circumstances of the case that the party of the complainant was determined to take forcible possession of the plot and cut the wheat crop and was prepared to inflict bodily injuries on those who belonged to the party of the appellant and actually inflicted injuries on Brahma Singh. ( 20 ) FROM the statement of the witnesses, it is borne out that the nature of the injuries caused on the person of appellants numbering higher can not be the result of injuries being given in self protection. The prosecution has failed to bring home the guilt to the appellants. How the ballam injury was caused on the person of Chhathu and Manan, has- not been explained though in the. First Information Report it has been stated by P. W. 1 that in self protection hallam was used. Later the prosecution has surreptitiously substituted Akhain/ thooni, with hallam. While appreciating evidence human factor has to be considered. The surrounding circumstances enveloping the scuffle have to be looked into. The number of injuries caused by other side bas to be viewed. The prosecution evidence has to be scanned with a pragmatic approach. In the instant case, it is clearly borne out that the prosecution has miserably failed to appreciate the case against the appellants. The appeal deserves to be allowed. Before parting with this case, it may also be mentioned that the investigation had not been fair. It is tainted. A human life had been lost must so the charging of the family members, but perhaps life of a human being is not important to the investigating agency. ( 21 ) IN the result, the appeal succeeds and is hereby allowed: The conviction and sentences warded by the trial court to the appellants are hereby set aside. The appellants are on bail. I They need not surrender. Their bail bonds are discharged. Appeal allowed. .