JUDGMENT 1. 1. All the five appellants have been convicted under Section 307 read with Section 149, Indian Penal Code and sentenced to three year's rigorous imprisonment and a fine of Rs. 500/-. Gyarsa, Rameshwar and Teja have further been convicted under Section 148, Indian Penal Code and sentenced to one year's rigorous imprisonment. Surja and Jagdish, appellants, have also been convicted under Section 147, Indian Penal Code and sentenced to 9 month's rigorous imprisonment. These convictions and sentences have been recorded by the Sessions Judge, Sikar by his judgment dated July 31, 1981 2. The facts leading to this prosecution are that on November 17, 1980, at 9 30 p m. Prabhata (PW/9) lodged a First Information Report at the Police Station Pa tan, District Sikar, alleging that at about 7.00 pm Nands (PW13), who is resident of Panchu Kbarakda-within the Police Station, Patan, this that the goat was bleating and it seems that someone was taking away the goat. Nanda went after the person taking the goat. Prabhata (PW/9) also came out. Both of them followed the foot-tracks. Near the Dhani of Ganpat Meena, two small children informed that three persons were taking the goat towards the house of Ganpat. Thereupon Prabhata and Nanda went towards the house of Ganpat. In the meanwhile, Smt. Chameli, who was mother of Nanda, also came there. Prabhata told Ganpat that his men had brought his goat and the same may be returned. Ganpat told that Gyarsa and his brother-in-law Rameshwar, under intogication of liquor had brought the goat and the same would be returned Prabhata sent Nanda to call the village people He again insisted upon Nanda to make the persons appears who had brought the goat. Nanda replied that the goat may be take on the morning of the next day. Smt. Chameli thereupon stated that she will take the goat just now and then she will get the thieves arrested. Gyarsa son of Nanda then abused Smt. Chameli and inflicted an are blow on her head. Partiya son of Teeja inflicted a lathi blow. Then Rameshwar inflicted a blow with Kasiya on the head of Smt. Chameli. Prabhata was also assaulted by Gordhan by an axe and by Jagdish from the reverse side of the axe on his right shoulder and also by Tijia and Surga by lathis. Smt. Chameli ran back crying within lathis assaillants chased her. Then Rameshwar inflicted a blow with Kasiya on the head of Smt. Chameli. Prabhata was also assaulted by Gordhan by an axe and by Jagdish from the reverse side of the axe on his right shoulder and also by Tijia and Surga by lathis. Smt. Chameli ran back crying within lathis assaillants chased her. In the meanwhile, Makhan, Gurdayal and Surja reahed there and intervened. Smt. Chameli fell down on account of the injuries sustained by bet on her head. On the basis of this First Information Report, the Officer Incharge Police Station, Patan registered a case with regard to offences under Sections 147, 148, 149, 324, 307 and 379, Indian Penal Code. He inspected the site and seized the blood-smeared and plain control send from the place of occurrence. The clothes which Prabhata and Smt. Chameli were wearing were also seized. On the information given by the various accused persons, recoveries of weapons of offence were also made. 3. Dr. Krishna Kumar (PW/1), on Police requisition, examined the injuries sustained by Smt. Chameli and Prabhata, and found and incised wound with cut on under lying bone on right parietal and frontal region of scap. The Doctor called for the report of the Radiologist and the Radiologist by his report Ex. P/2 reported that there was fracture of right side of the frontal bone and, thus, this injury was treated as grievous injury. The Doctor found one more incised wound on left parietal and occipital region of scalp sustained by Smt. Chameli, which was by a sharp-edged weapon; but simple in nature. Rest of the injuries were bruises on different parts of body and swelling on the left-fore-arm. Prabhata also sustained two incised wounds, by sharp-edged weapon on left parietal region of scalp. But both these injuries were simple in nature. Rest were contusions and abrasions. On x-Ray, it was found that Prabhata had fracture at the shaft of proximal phalangs of little finger of right band. Dr. Krishna Kumar was of the view that in case injury No. 1 on Chameli was not treated in time, it would have proved fatal. After necessary investigation, the. Police filed a charge-sheet against the appellants. The case was committed to the Sessions Judge, Sikar for trial. He charged the appellants for offences tinder Sections 147, 148 and 307, Indian Penal Code, read with Section 149, Indian Penal Code. After necessary investigation, the. Police filed a charge-sheet against the appellants. The case was committed to the Sessions Judge, Sikar for trial. He charged the appellants for offences tinder Sections 147, 148 and 307, Indian Penal Code, read with Section 149, Indian Penal Code. The Sessions Judge believed the prosecution case. He also came to the conclusion that the appellants formed an unlawful asssembly with the common object Of murdering Chameli and, therefore, he held all of them guilty for the offences under Sections 307/149, Indian Penal Code. He further held Gyarsa, Rameshwar, and Teja guilty under Section 148, Indian Penal Code and Surja alias Surga and Jagdish under Section 147, Indian Penal Code, and sentenced them as aforesaid. 4. The learned Counsel for the appellants urged that there were material contradictions in the testimony of eye-witnesses with regard to the place where the goat was takan away and the number of persons who took away the goat. It was also urged that the incident had taken place at the house of Gyarsa appellant and during the incident Rameshwar, Gyarsa and Teja appellants had sustained injuries as is appearent from the injury report Ex. D/1, Ex. D/3 and Ex. D/4. It was pointed out that Rameshwar had sustained one injury by a sharp-edged weapon on right fore-arm. It was contended that the prosecution has failed to explain the injuries sustained by these three appellants and, thus, the genesis of the case as set-forth by the prosecution is wholly doubtful. According to the learned Counsel, these injured persons inflicted injuries on Smt. Chameli and Prabhata in exercise of right of private defence as the latter were agressors. Lastly, it was stated that some of the independent witnesses like Surja (PW/2), Hanuman (PW/3), Ruda Ram (PW/4) and Gurdayal (PW/5) have not supported the prosecution version 5. I have given my due consideration to the contentions put forth by the learned Counsel for the appellants. It is true that during the incident, three of the appellants named Gyarsa, Rameshwar and Teja sustained injuries on their persons as is evidenced by the injury report Ex. D/1, Ex. D/3 and Ex. D/4. So far as Rameshwar is concerned, he had one incised Wound on right fore-arm which was caused by a sharp weapon, but the injury was simple. Its size was 1" ⅓" ⅓". There was also dislocation of tooth right under medial inciser. D/1, Ex. D/3 and Ex. D/4. So far as Rameshwar is concerned, he had one incised Wound on right fore-arm which was caused by a sharp weapon, but the injury was simple. Its size was 1" ⅓" ⅓". There was also dislocation of tooth right under medial inciser. The rest were minor abrasions of fore-arm and left scapular region on back. Gyarsa and Teja had superficial abrasions. The presence of those three persons was neither disputed nor could be disputed at the time of the incident. The First Information Report Ex. P/16 was lodged at 93.0 p m. on the same day. The incident had taken place at about 7 p.m. and the distance of the Police Station from the place of the incident was 7 killo meters. It was urged that While Nanda, Prabhata and Chameli were at their house, Nanda heard the bleating of goat and he felt that some one was taking away the goat. It was winter evening. He told about this to Prabhata. Both of them followed the tracks and were informed by children that three persons had taken away towards the house of Ganpat. These are the testimonies given by Prabhat, (PW/9), Mukha (PW/11). Nanda (PW/13) and Smt. Chameli (PW/14) before the Court and there is no reason to doubt their testimony. Naturally, when they had learnt that Ramesawar, who happened to be the brother-in-law (looser of Gyarsa son Of Ganpat, had taken away the goat of Nanda they were to reach the, house of Nanda to get their goat released. Ganpat did not restore the goat to Nanda or Smt. Chameli and they were told that the goat would be returned, next day. Smt. Chameli insisted that she will take back the goat just then, but Ganpat, his son and other relatives did not restore the goat. Nanda was sent to call the village people. In the meanwhile, Gyarsa inflicted an axe blow on her head. Another axe blow was inflicted by Rameshwar who had actually taken away the goat. It was also deposed that the remaining persons were also beating Smt. Chameli. Prabhata intervened and during that intervention he sustained injury on his head, knee and finger. In the meanwhile, Gyarsa inflicted an axe blow on her head. Another axe blow was inflicted by Rameshwar who had actually taken away the goat. It was also deposed that the remaining persons were also beating Smt. Chameli. Prabhata intervened and during that intervention he sustained injury on his head, knee and finger. Smt. Chameli had stated that She had threatened Ganpat that in case the goat was not returned, she would lodge a report with the Police and, thereupon Gordhan inflicted injuries on her head by an axe. Gyarsa inflicted injury on her head and Rameshwar by a Kasia on her head. It was stated that Teja, Jagdish and Surja had Lathis and they also beaten, Mukha PW11 also attributed injury on Smt. Chameli to Gardham Gyarsa, Teja and Prabhata. Rameshwar in his examination Under Section 313 Cr. PC has stated that he used to look after the cultivation in the field of his brother-in-law. At about 6 p.m. Prabhata, Smt. Chameli and Nanda came to the house of Gyarsa son of Ganpat abusing. He was alone at the house and they started beating him. Thereupon his brother-in-law Gyarsa came out arid tried to rescue Rameshwar, but he was also beaten. Similarly, Teja was also beaten. 6. After all, there was some reason which led Prabhata, Smt. Chameli and Nanda to come to the house of Ganpat burling, abuses and the reason; was none-the-less than that Rameshwar had taken away the goat of Nanda, as is the case of the prosecution. Naturally, therefore, they went to the house of Nanda where Rameshwar was staying. The only defence witness examined on behalf of the appellants is Teeja DW1 has said that Smt. Chameli, Prabhata and Nanda had lathis in their hands Villagers often taken lathis. It is clear that even from the defence evidence none of the persons from the complainant side had any sharp edged weapon with them Obviously, Rameshwar sustained superficial incised wound because Prabhata had intervened to rescue Smt. Chameli. As already stated, the injuries on Gyarsa and Teja were superficial) So also the abrasions on Rameshwer were superficial. Dislocation of tooth did occur when some one tried to rescue Smt. Chameli from the assault which was being made on her by sharp-edged weapon, like axe and 'kasia'. 7. As already stated, the injuries on Gyarsa and Teja were superficial) So also the abrasions on Rameshwer were superficial. Dislocation of tooth did occur when some one tried to rescue Smt. Chameli from the assault which was being made on her by sharp-edged weapon, like axe and 'kasia'. 7. It has been laid down by their Lordships of the Supreme Court in Hare Krishna Singh v. State of Bihar, AIR 1988 Supreme Court 863 , after review of the previous authorities on the subject, that the burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it become hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused. The accused may take the plea of the right of private defence which means that be and inflicted injury on the deceased or the injured person in exercise of his right of private defence. In other words, his plea may be that the deceased or the injured person was the aggressor and inflicted injury on the accused and in order to defend himself from being the victim of such aggressions, he had inflicted injury on the aggressor in the exercise of his right of private defence. After reviewing various previous decisions given by the Supreme Court on the point, his Lordship M.M. Dutta, J. observed that: "All the decisions of this Court which have been referred to and discussed above, show that when the court has believed the prosecution witnesses as convincing and trustworthy, the Court overruled the contention of the accused that as the prosecution had failed to explain the injuries sustained by the accused in the same occurrence, the prosecution case should be disbelieved and the accused should be acquitted. Thus, it is not the law or invariable rule that when ever the accused sustains an injury in the same occurrence, the prosecution has to explain the injuries failure of which will mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence." 8. Merely because the prosecution has not explained the injuries on Rameshwar, Gyarsa and Teja, it cannot be said that the prosecution version of the incident is not correct. 9. Next remains to be examined as to whether the appellants had formed an unlawful assembly with the common object of murdering or attempt to murder Smt. Chameli. As already stated, the incident occurrence because Rameshwar who was brother-in-law of Gyarsa appellant on looser side, had taken away the goat and, Prabhata, Smt. Chameli and Nanda had gone to the house of Ganpat to take back the goat. It is not the prosecution case that the appellants were sitting prepared to assault Smt. Chameli or Prabhata. The complainant party reached the house of Ganpat and only talked with Ganpat, but there is nothing to show that any of the appellants were present along with Ganpat at that time. Prabhata had stated that Ganpat had sent a boy to call his sons. Smt Chameli has deposed that she sent her son Nanda to call the villagers to the spot. She told Nanda that either he should return the goat, or she would make a report in the Police Station, while see started going towards the village threatening that she will lodge a report in the Police Station. In my view in the back-ground of these facts, it cannot be said that unlawful assembly was formed with the common object to make an attempt to murder Smt. Chameli. As already states, Smt. Chamely has two incised wounds on right parietal and frontal region of scalp and on left parietal and occipital region. In her statement, she attributed injuries by sharpedged weapon to three persons named Gordhan, Gyarsa and Prabhata. Gordhan was not charge-sheeted in the case. Thus, these two injuries remains attributed to Gyarsa also. So far as Prabhata is concerned, he has deposed that when he tried to rescue Chameli, then Gordhan inflicted an axe below on his head. Jagdish inflicted blow from the reverse side of the axe. Gordhan was not charge-sheeted in the case. Thus, these two injuries remains attributed to Gyarsa also. So far as Prabhata is concerned, he has deposed that when he tried to rescue Chameli, then Gordhan inflicted an axe below on his head. Jagdish inflicted blow from the reverse side of the axe. Gyarsa attempted another axe blow an Smt. Chameli and when be extended his right hand to rescue Smt. Chameli, the axe blow hit on right hand finger. As has been stated, Gordhan is not before the Court. According to Smt. Chemeli, Jagdish had a Lathi in his hand and, therefore, Prabhata cannot be believed when he says that Jagdish inflicted an axe blow from the reverse side Teja's participation is also not established because in the First Information Report infliction of injury was attributed to Partiya son of Teja. On appraisement of evidence, I am of the opinion that Rameshwar and Gyarsa appellants should be held guilty for the injuries which they inflicted on Smt. Chameli and Prabhata. Having regard to the nature of the injuries sustained by Smt. Chameli and Prabhata, I am not ready to held that the injuries were such as were sufficient in the ordinary course of nature to cause death. Rameshwar inflicted injury by sharp-edged weapon, which was grievous. In view, looking to the nature of the injury, he should be held guilty for the offence Under Section 326, Indian Penal Code not Under Section 307. Indian Penal Code. So far as Gyarsa is concerned, he should be held guilty for the offence Under Section 324, Indian Penal Code. 10. I, therefore, partly allow this appeal, set aside the convictions and sentences awarded by the Sessions Judge. Sikar to Teja, Surja, and Jagdish and acquit them of all the charges. So far as Gyarsa is concerned, it appears proper that benefit Under Section 360, Cr.PC should be given to him. He will execute a bond in the sum of Rs. 4,000/- with two sureties in the sum of Rs. 2,000/- each to the satisfaction of the Sessions Judge, Sikar to maintain peace and be of good behaviour for a period of two years and on his doing so, he will not be made to undergo any sentence. He will execute a bond in the sum of Rs. 4,000/- with two sureties in the sum of Rs. 2,000/- each to the satisfaction of the Sessions Judge, Sikar to maintain peace and be of good behaviour for a period of two years and on his doing so, he will not be made to undergo any sentence. In case, Gyarsa fails to furnish the required bond and surety bonds within 1 month from date of this judgment, to satisfaction of the Sessions Judge, Sikar, he will undergo simple imprisonment for six months. So far as Rameshwar is concerned, I am not inclined to grant him benefit Under Section 360 of the Code of Criminal Procedure, for the reason that he had the audacity not only to commit theft of the goat belonging to Smt. Chameli and Ganpat, but also inflicted injury by a 'kasia' on the scalp of Smt. Chameli, which was grievous in nature. I, therefore, convict him Under Section 326, Indian Penal Code and sentence him to undergo rigorous imprisonment for one year and he will further deposit a fine of Rs. 1,000/-. The amount of fine will be paid to Smt. Chameli as compensation for the injury sustained by her. The rest of the three appellants Teja, Surja are hereby acquitted. Their bail bonds are revoked. These three appellants need not surrendered.Appeal partly allowed. *******