M. M. LAL, J. ( 1 ) THIS is an appeal against a judgment and order date 10/12/1977 passed by Sri S. N. Lal, the then II ddl. Sessions Judge, Azamgarh by Which he has convicted Ram Samujh And Rama appellants under Sections 302/34 of the Indian Penal Code, and has sentenced each of them to undergo imprisonment for life and has further convicted Ram Samujh, Rama and Samharu appellants, under Sections 323/34 of the Indian Penal Code, and has sentenced each of them to undergo rigorous imprisonment for six months. ( 2 ) THE parties are residents of village Parasurampur, P. S. Gambhirpur, District Azam-garh. In village Parasurampur there is a Pokhra i. e. pond. Towards east and west of the said pond there is a filed of Ambika informant. In the said field of the informant wheat crop was growing at the time of the incident. Towards west of the said field, there was a field belonging to Samharu accused etc. Ram Samujh accused was son of Samharu appellant. In the said field of Samharu Latari crop, a kind of pulse was growing. ( 3 ) ACCORDING to the case of the prosecution on 9/12/1976, in order to irrigate the aforesaid wheat field, belonging to Ambika informant water was being brought from tube well belonging to one karimullah situate in the north through a water channel. The said water channel was being made by P. W. 1 Ambika informant and his brother P. W. 3 Puranmasi injured. The ladies of the family, i. e. Smt. Ram Pyari deceased, Smt. Ramratti, Smt. Kailashpatti and Smt. Sripatti, were keeping a watch on the said water channel with a view to repair it in case the same was breached. As per version given in the First Information Report at about 4. 30 p. m. on that day the said water channel got breached with the result that the water of the same started flowing in the aforesaid field of Samharu accused. In order to repair the said water cannel informant Ambika and others entered in field of Samharu accused. At that time Ram Samharu and Samharu, armed with this lathis came there and started abusing the prosecution side and inquired from them as to why they were causing loss to their field on which they were told that the water channel had got breached accidently. At that time Ram Samharu and Samharu, armed with this lathis came there and started abusing the prosecution side and inquired from them as to why they were causing loss to their field on which they were told that the water channel had got breached accidently. It was further the case of the prosecution that Samharu and Ram Samharu started beating prosecution side with Lathis. At that time Ambika informant was carrying Hattha and in order to save himself he had plied the sameresulting in injuries to Samharu accused. On hearing noise Rama, Naharu, Dayaram, Sita Ram, Chhabiraj and Ram Karan, carrying Lathis, reached the place of occurrence and they also I started beating Ambika informant, P. W. 3 Puranrnashi and the aforesaid four ladies. Theprosecution side started to run away but they were chased In the wheat field of Ambika informant. Ram Samujh assailant gave a lathi blow Smt. Ram Pyari and she fell down whereafter Rama also gave her a Lathi blow. Smt. Ram Pyari was brought to her residence, where she expired. ( 4 ) P. W. 1, Ambika got a report of the incident written and then sent the same through a boy named Mangala, who lodged the same at P. S. Gambhirpur situate at a distance of four miles, on the same date at 7. 15 p. m. ( 5 ) SRI Kant Pandey, S/o. P. S. Gambhirpur immediately started investigation of the case. He recorded the statement of aforesaid Mangala at the Police Station. The Investigating Officer reached the place of occurrence on the same day at 8. 45 p. m. where he recorded the statements of P. W. 1 Ambika informant, Deepchand and others. He took in possession the blood stained clothes of Smt. Ramratti. The Investigating Officer found the dead body of Smt. Ram Pyari lying at the door of the informant. As there was no proper arrangement of light in the night, hence the Investigating Officer prepared the inquest report of the dead body on the next morning. ( 6 ) THE Investigating Officer inspected the place of occurrence. He found a water channel going from north to south and situate towards west of the field of the informant. He also observed the said water channel breached. At point TX shown in the site plant, i. e. a point situate towards north east of the field of Samharu accused. He found a water channel going from north to south and situate towards west of the field of the informant. He also observed the said water channel breached. At point TX shown in the site plant, i. e. a point situate towards north east of the field of Samharu accused. The Investigating Officer made arrangement to send the injured persons for medical examination to the Hospital. ( 7 ) SMT. Kailashpatti, Sri Ambika informant, Sri Puranmashi P. W. 3, Smt. Ramratti and Smt. Sripatti were examined by the Medical Officer P. H. C. Gambhirpur on 10/12/1976 and following injuries were found on their persons: Smt Kailashpatti Contusion 0. 5 cm. diameter on left side back half of head red colour 3 cm. left one from mid line. 9 cm. back above the top of left ear alongwith traumatic swelling 5 cm. x 4 cm. arround it. Sri Ambika 1. Contusion 6. 5 cm. x 1. 5 cm. obliquely vertical on outer side of left upper arm lower part tower end just above the left elbow joint alongwith traumatic swelling 9 cm x 7. 5 cm. on other side of left elbow joints. Colour not clear due to skin colour. 2. Abraded contusion 11 cm. x 1. 5 cm. obliquely vertical parallel to outer bridge of right shoulder blade, lower end 6 cm alone and out to the lower part of right shoulder blade. Sri Puranmashi Red contusion horizontally 8 cm. x 2 cm. on the right outer side of chest 13 cm. below right area pit 13 cm. below and one to top of left shoulder acromial end of left shoulder blade. Smt. Ramratti 1. Lacerated wound 2 cm. x 0. 5 cm. x scalp deep near mid line on right side on fore half of head 7. 5 cm. above the right eye blow and 2. 5 cm out from the mid line. 2. Red contusion 9 cm. x 2 cm. on right buttock lower part. 3. Contusion red 3 cm. x 1. 5 c. m. on outer side of lower part of right thigh above the right knee joint. Smt. Sripatti 1. Two lacerated wounds 1 c. m. x 0. 5 c. m. each 0. 7 cm apart of inner side back of left ring finger upper wound just below the first interdigitate joint. Muscle deep wounds. 2. Red contusion 7 cm. 5 c. m. on outer side of lower part of right thigh above the right knee joint. Smt. Sripatti 1. Two lacerated wounds 1 c. m. x 0. 5 c. m. each 0. 7 cm apart of inner side back of left ring finger upper wound just below the first interdigitate joint. Muscle deep wounds. 2. Red contusion 7 cm. x 2 c. m. transversely on the outer side of left upper arm 13 c. m. above the left slow joint. 3. Red contusion 3. 5 cm. x 1. 5 cm across the left shoulder blades upper and 4 cm left out while lower and 4 c. m. left out from the mid line. ( 8 ) THE post mortem examination of the dead body of Smt. Ram Pyari was conducted by the Medical Officer, District Hospital, Azamgarh on 11/12/1976 at 2. 30 p. m. He found the following antemortem injuries on the dead body: 1) Contusion 3 x 11/4 on the left side chest, opposite to the rib in mid axillary line. 2) Contusion 21/2 x 112on the left side chest 1/2 above injury No. 1. 3) Abrasion 1" x 1/2 on the forehead left side 2 above the left eye brow. 4) Abraded contusion 1/2 x 1/2 on the left side on face. ( 9 ) ON internal examination the doctor found 8th and 9th ribs having been fractured. Peritoreum was lacerated. Spleen was ruptured. According to the doctor the death had occurred about two days ago due to shock and haemorrhage as a result of the aforesaid antemortem injuries. ( 10 ) IN order to prove its case the prosecution examined P. W. 1. Ambika informant, P. W. 2 Deepchand and P. W. 3 Puranmashi injured to give an eye witness account of the incident. P. W 5 Pancham Pal was Head Moharrir at P. S. Gambhirpur. He deposed that on 9/12/1976 aforesaid Mangala came to the Police Station to hand him over the written report of the incident at 7. 15 p. m. on which this case was registered. P. W. 4 Sri. Kant Pandey is the Investigating Officer. ( 11 ) THE accused Persons in their statements denied the case of the Prosecution. He deposed that on 9/12/1976 aforesaid Mangala came to the Police Station to hand him over the written report of the incident at 7. 15 p. m. on which this case was registered. P. W. 4 Sri. Kant Pandey is the Investigating Officer. ( 11 ) THE accused Persons in their statements denied the case of the Prosecution. Ram Samujh further stated that Ambika informant, Puranmashi injured Indraman and Radhey were making water channel in his field, that Puranrnashi was armed with Goji Ambika was armed with a spear, Indraman and Radhy were armed with Lathis and the ladies of the house of the Ambika informant were carrying, brickbats. He further stated that his father i. e. Samharu, asked the informant and others not to make water channel his field where upon Ambika informant caused injuries to him with spear and he and his father were further caused injuries by Lathis and kicks and fists. He further stated that in their right of private defence both he and his father wielded Lathis. ( 12 ) THE accused persons did not examine any witness in defence. ( 13 ) LEARNED Trial Court after holding that the Prosecution witnesses had not assigned any specific role to Naharu, Dayaram, Sitaram, Chhabiraj and Ram Karan, has acquitted them. Learned Sessions Judge, however, convicted and sentenced Samharu Ram Samujh, Rama aforesaid Aggrieved by the same they filed this appeal. ( 14 ) DURING the pendency of this appeal Ram Samujh and Samharu have expired with the result that the appeal filed by them has abated, and an order to this effect has already been passed on 27/3/1989 and 15/3/1989 respectively. ( 15 ) WE have heard learned Counsel for Rama appellant and the State and have perused the record carefully. ( 15 ) WE have heard learned Counsel for Rama appellant and the State and have perused the record carefully. ( 16 ) P. W. 1 Ambika has admitted in his evidence that on the date of the incident itself he had made the aforesaid water channel and that the said water channel was made adjoining to the field of Samharu Deepchand P. W. 2 had stated in his evidence that one cubit wide water channel was being made on the date of the incident in between the wheat field (belonging to the informant) and Latari field (belonging to Samaharu accused) and that the eastern side of the said water channel was on that Mendt, which was in between the said two fields of wheat and Latari. If this position is accepted then obviously the said water channel, comes within the area of the Latari field of the accused persons. The prosecution side had no right to make any water channel in the field belonging to the accused persons. Whatever the position may be, it is a clear case of the prosecution, as taken in the F. I. R. , that the said water channel was breached and the water from the same started flowing in the Latari field belonging to the Samharu accused and that in order to repair the said water channel the prosecution side entered in the field of Samharu accused, which was objected. In our opinion the prosecution side had no right to enter in the Latari field of accused The prosecution has not disclosed as to how the informant and his companions had any right to enter in the field of the accused persons even with a view to repair the aforesaid water channel. P. W. 4 Sri Kant Pandey has admitted in his evidence that when he made the local inspection he had found some Latarit crop standing in the aforesaid field of the accused having been trampled. He further observed that some water had flown in the said Latari field of the accused. The contention of the defence side is that the said water was harmful to the aforesaid Latari crop. It is thus obvious that the prosecution side had entered in the Latari field of the accused for which they had no right. They had also trampled some portion of the Latarit crop and had thus caused damage to it. The contention of the defence side is that the said water was harmful to the aforesaid Latari crop. It is thus obvious that the prosecution side had entered in the Latari field of the accused for which they had no right. They had also trampled some portion of the Latarit crop and had thus caused damage to it. The prosecution side had not taken care in making the aforesaid water channel well in their own field thereby avoiding any possible loss to the Latari cropt of the accused persons by following of the water. Water from the said water channel had in fact flown in the Latari field, which was harmful to the crop standing therein. The defence side, therefore, had a right to raise an objection and resist the prosecution side in doing the aforesaid acts. ( 17 ) LEARNED Counsel for the State has urged before us that in no case the right of private defence extended to cause the death of Ram Pyari. In our opinion persons who are asserting their right of private defence are doing a perfectly legitimate act and the assembly cannot be said to be unlawful assembly. Consequently the provisions of Section 149 of Indian Penal Code cannot be invoked so as to make everyone of those persons vicariously liable for the acts of their comrades. If any one of them exceeds that right and gives a blow which caused death, that is his individual act and he alone would be liable for the consequences thereof, If there is no evidence whatsoever to fix the identity of the individual who delivered the fatal blow the result would be that no one of those persons can reconvicted of the offence of culpable homicide. See in Ram Autar and ors. v. State. In this case before us the learned Trial Courts has acquitted five accused persons on the ground that no specific role had been assigned to them, which shows that the learned Trial Court was also of the opinion that an assailant in this case could be held guilty only for the act individually done by him. There was also no pre-planning in this case. This incident flared up all of sudden when the prosecution was making a water channel and admittedly the prosecution side had entered the field of the accused persons to repair the said water channel. There was also no pre-planning in this case. This incident flared up all of sudden when the prosecution was making a water channel and admittedly the prosecution side had entered the field of the accused persons to repair the said water channel. Therefore, even at best Rama appellant can be held guilty only for his act which was individually committed by him. He could not be convicted with the help of Section 34 of Indian Penal Code. 17. In this case the prosecution has examined three eye witnesses, namely P. W. 1 Ambika informant his brother P. W. 3 Puranmashi and P. W. 2 Deepchand. So for as P. W. 2 Deepchand is concerned he is obviously a chance witness. The learned Trial Court has held that Badal, who was grand father of P. W. 2 Deepcharid, and Mahadev, who was grand father of Ambika informant, were real brothers. Not only P. W. 2 Deepchand was related to the informant but the record shows that he was inimical to the accused persons. He admitted that 2-3 months prior to this incident. Dayaram accused had lodged a report against his son Mangal etc. for which they were being prosecuted The learned Sessions Judge has also not placed implicit reliance upon this witness. At one place of his judgment learned Sessions Judge has observed that even if the evidence of P. W. 2 Deepchand is not taken into account the other evidence prosecuted by the Prosecution was sufficient. In these circumstances we are of the opinion that it is difficult to place reliance upon P. W. 2 Deepchand. ( 18 ) THE main of the prosecution against Rama appellant is that after Smt. Ram Pyari had fallen down he had given Lathis blow to her. P. W. 3 Puranmas has admitted that after he had been given a Lathi blow by Ram Samujh he had become unconscious, that on account of his unconsciousness he had not gone to lodge the report and that it was 2-3 hours after the incident that he had regained consciousness. The record shows that P. W. 3 Pumamashi had sustained the Lathis blow in the very begining i. e. near about the aforesaid water channel. The record shows that P. W. 3 Pumamashi had sustained the Lathis blow in the very begining i. e. near about the aforesaid water channel. Ram Pyari on the other hand was said to have been chased and beaten quite away from the aforesaid water channel, in that portion of the wheat field which was situate towards east of the aforesaid pond. Therefore, when P. W. 3 had become unconscious, there was no question of his seeing Rama appellant causing any Lathi injury to Ram Pyari deceased. ( 19 ) AMBIKA P. W. 1 besides being interested, does not appear to be truthful witness. Although he had taken a positive case in the First Information Report that he had gone inside the Latari field of the accused in order to repair the aforesaid water channel which had been breached, he took a somersault and denied the said case. On the other hand he deposed that by taking earth from his own field he was repairing the said water channel when an assault was mounted on him and others. He flatly denied that he and his companions had gone inside the field of Samharu with a view to construct or repair the said water channel. He also denied having said and written in his F. I. R. that in order to repair the said water channel he and others had gone in the field of the accused persons. The said material variation and contradiction in the evidence given by P. W. 1 Ambika and the version made by him in the F. I. R. shakes our confidence in his truthfulness. ( 20 ) THERE is yet another compelling reason which shows that the prosecution has not placed the true facts in this case. The prosecution has taken a case that at the time of the incident Ambika informant was carrying a Hattha a kind of wooden implement, which was being used to clear the aforesaid water channel and to remove any obstruction etc. and that the said Hattha was plied in the private defence. The defence on the other hand took a case that Ambika informant was armed with a spear and others were armed with Lathis. It was also the case of the defence that an attack was mounted by the prosecution side with the help of the said spear and Lathis. and that the said Hattha was plied in the private defence. The defence on the other hand took a case that Ambika informant was armed with a spear and others were armed with Lathis. It was also the case of the defence that an attack was mounted by the prosecution side with the help of the said spear and Lathis. It is not a case where the prosecution side may have denied having plied any weapon at the time of the incident. The prosecution has admitted that the aforesaid Hattha was plied in the self defence, which caused so injuries on the other side. The prosecution, however denied that any person from their side was armed with spear. In our view if it is found that some one from the side of the prosecution was armed with a spear or with some other sharpedged weapon, it cannot be said that the said spear or sharp edged weapon was being carried in order to construct or repair the aforesaid water channel. Carrying of the spear or any other sharp penetrating weapon would tend to show that the prosecution side had come ready to commit aggression. The fact that the prosecution side was armed with spear or with some other sharp penetrating weapon is clear from the injuries sustained by Ram Samujh, appellant. Ex. Kha - 7 is the certified copy of the injury report of Ram Samujh the genuineness of which was admitted by the prosecution before the court below. The same shows that Ram Samujh son of Samharu brought by a police constable was examined on 11/12/1976 by the same Medical Officer P. H. C. Muhammadpur who had examined Purnmashi and others for the prosecution side. He had found the following injuries on the body of Ram Samujh 1. Penetrating wound 1. 2 cm. x 0. 8 cm. x 1. 5 cm. bone deep shart margin on the back of middle on upper left forearm direction vertical and forward traumatic swelling 6 cm. x 5 cm. around the wound. 2. Contusion 3 cm x 1. 5 cm. vertical on the right side of front of head. 3. Contusion 3. 5 cm. above and forward on the back of the right ear and 6 cm. alone and out from the outer angle of right eye colour red. x 5 cm. around the wound. 2. Contusion 3 cm x 1. 5 cm. vertical on the right side of front of head. 3. Contusion 3. 5 cm. above and forward on the back of the right ear and 6 cm. alone and out from the outer angle of right eye colour red. ( 21 ) THE doctor observed that the aforesaid injury No. 1 was caused by a sharp penetrating weapon and injury No. 2 was caused by a blunt object. The duration of the said injuries were said to be one to two days. ( 22 ) IT may not be out of place to state here that Samharu was also examined by the same doctor, i. e. Medical Officer P. H. C. Muhammadpur on 11/12/1976. He was also taken to the P. H. C. by one Prabhunath Singh of P. S. Gambhirpur following injury was found on his persons :- 1. Lacerated wound of 1. 5 cm. x 0. 4 cm. x scalp deep on the left side. The said injury was said to be simple caused by blunt weapon. The duration was said to be one to two days. ( 23 ) IN our opinion the aforesaid penetrating wound suffered by Ram Samujh clearly shows that some one on the prosecution side was carrying either a spear as alleged by the defence or some other sharp penetrating weapon. The same belies the case set up and the evidence produced by the prosecution that the prosecution side carrying Hatthat was innocentally engaged in the construction and maintenance of the aforesaid water channel when all of sudden an attack was mounted on them. The said fact shows that the defence taken in this case that it was the prosecution side which had taken the law in its own hand was plausible and probable. ( 24 ) IN view of the discussion made, and for the reasons stated, we are of the opinion that the case against Ram appellant was not proved beyond reasonable doubt. He is entitled to get benefit of doubt. ( 25 ) ACCORDINGLY this appeal filed by Rama appellant is allowed His conviction and sentence under Sections 302/34 of Indian Penal Code and 23/34 of Indian Penal Code are hereby set aside. He is held not guilty of the said offences. ( 26 ) RAMA appellant is on bail. He is entitled to get benefit of doubt. ( 25 ) ACCORDINGLY this appeal filed by Rama appellant is allowed His conviction and sentence under Sections 302/34 of Indian Penal Code and 23/34 of Indian Penal Code are hereby set aside. He is held not guilty of the said offences. ( 26 ) RAMA appellant is on bail. He need not Surrender to his bail bonds which hereby stood discharged. ( 27 ) ON account of their deaths, this appeal filed by Ram Samujh and Samharu has abated. .