JUDGMENT 1. - The two accused appellants were tried along with eight others by the learned Additional Sessions Judge. Dholpur in Sessions Case No. 61/19-86, the two accused appellants were convicted by the learned Additional Sessions Judge under his judgment dated 17th December 19 6 under section 307 I.P.C. and each of them was sentenced ;o undergo 7 years R. I. and to pay fine of Rs. 10 000/- and in default of payment of fine to further undergo one year R; I The learned Additional Sessions Judge also ordered that in case the tine is realised, then a sum of Rs. 10,000/- shall be paid to Jado Singh injured. 2. Before I take up the facts and go into the arguments advanced before me in this appeal, it may be stated that there was also a cross case being Sessions case No. 60/1986, State v. Jado Singh and others and that case was also simultaneously tried by the learned Additional Sessions Judge. Dholpur. The learned Addl. Sessions Judge under his judgment dated 15th December 1986 had acquitted all the accused-persons in that case and a criminal revision petition No. 116/87 has been filed by Nathi, complainant in this court which has been dismissed by a separate order. 3. In brief the case of the prosecution so far as the present appeal is concerned, is that on 11th March 1982 in Ratanpura villige, there was restling competition and Jado Singh PW 11, Gulab Singh PW 6 and many others from the side of the complainant and two accused appellants along with nine others, who have been acquitted, had gone to witness it* The case of the prosecution is that one Vinod S/o Prem Singh Jado PW 11 and others left the place where the wrestling competition was going on in the village. They came to the house of Prem Singh and were sitting on a platform. Gulab Singh and others also arrived there and they were also sitting there and Har Prasad PW 2 and Bhagwan Singh PW 3 also arrived there and they also were sitting on the platform. Then the two accused appellants along with nine others, who have been acquitted came inside the house and they were armed with lathis, farsa and guns. Gulab Singh and others also arrived there and they were also sitting there and Har Prasad PW 2 and Bhagwan Singh PW 3 also arrived there and they also were sitting on the platform. Then the two accused appellants along with nine others, who have been acquitted came inside the house and they were armed with lathis, farsa and guns. Rambabu and Amiri were armed with 12 bore gun, Bhagwan Singh and Moola were also armed with guns and the others were armed with lathis and farsas. The accused persons started hurling abuses and some of the accused persons threw stones. It is alleged that the accused appellants and Amiri fired with their respective guns. The pellots fired by the gun of Rambabu had hit Jado and Jado also received the pellot injury fired by Bhagwan Singh. Prem Singh received the pellot injuries fired by Moola and so far as Amiri Singh is concerned, he did not hit any on his body bat hit a tin shade which was opposite the room. A report of the incident was not lodged immediately and Jado who had received injuries was first sent to the hospital at Dholpur recorded his dyeing declaration which has been matked as Ex. D 9. It appears that the condition of Jado Singh was serious and, therefore, he was taken to Agra, a place near Dholpur where he got better medical facilities and Dr. I.P Elhence examined him. The injured Jado Singh was operated and it was revealed during operation that there was a whole and blood had collected there. The injury was repaired. It appears that while Jado Singh was confined in the hospital his dying declaration was recorded by the Magistrate which is produced. The dyeing declaration was recorded in Medical College Agra where Jado Singh was confined and the declaration was recorded before he performed the operation. 4. The police after investigation filed a charge-sheet against the two accused appellants and nine others. The accused persons stood on a plea of bare denial and did not examine any witness in defence. The case of the prosecution is that the incident took place at the house of Bhagwan Singh and F.I.R. was lodged. In that case, a case was set up that two accused persons on behalf of the accused party namely Bhagwan Singh and Bangali had also received gun shot injuries. The defence witness Dr. The case of the prosecution is that the incident took place at the house of Bhagwan Singh and F.I.R. was lodged. In that case, a case was set up that two accused persons on behalf of the accused party namely Bhagwan Singh and Bangali had also received gun shot injuries. The defence witness Dr. Babu Lal DW. 8 was examined who stated that on 11th March 1982 he had examined the injuries of Bhagwan Singh accused and Bangali and on examination of Bhagwan Singh he found that there were as many as three gun shot injuries. So far as Bangali is concerned Dr. found that there were two gun shot injuries. The injuries of gun were simple in nature. It was also a case of the defence that a she-buffalow was tied at the house of Bhagwan Singh and also received gun shot injury. 5. On behalf of the accused appellants other persons were also examined in defence but the learned Addl. Sessions Judge convicted the accused appellants as aforesaid and sentenced them but so far as the other nine accused persons are concerned, they were acquitted. 6. Coming to the dyeing declaration recorded in the Medical College, Agra by the Executive Magistrate the learned Sessions Judge said that Ex. P. 9 has not been proved and it is not a piece of evidence and no reliance can be placed on it. 7. The contention of learned counsel for the accused appellants is that it cannot be said that the accused persons were the aggressors. The learned counsel further contends that so far as Rambabu is concerned, he is son of Nathi who admittedly was the Chairman of Nyaya Panchayat and there was enmity in between the complainant party and Nathi and Rambabu who set up a plea of enmity. He further contends that the learned Addl. Sessions Judge was bound to deal with the defence case and in this case could not have merely said that there is a cross case and he has acquitted the accused persons and does not place any reliance. Reliance in this connection has been placed in the case of Prabhu and others v. Emperor, AIR 1941 All. 402 . Sessions Judge was bound to deal with the defence case and in this case could not have merely said that there is a cross case and he has acquitted the accused persons and does not place any reliance. Reliance in this connection has been placed in the case of Prabhu and others v. Emperor, AIR 1941 All. 402 . The Allahabad High Court dealing with the question of burden of proof in criminal cases and general exceptions pleaded by the accused said that in a case in which any general exception in the Penal Code is pleaded by an accused person and evidence is adduced to support such plea, but such evidence fails to satisfy the court affirmatively of the existence of circumstances bringing the case within the general exception pleaded, the accused person 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 the said general exception) a reasonable doubt is created in the mind of the Court whether the accused person is or is not entitled to the benefit of the said exception. In the case of Yogendra Moearji v. State of Gujarat, AIR 1980 S.C. 660 , the ratio of the aforesaid case of Prabhu was approved. It can, therefore, be taken to be a settled law that if the accused pleads the exception then taking the entire facts and circumstances of the case into consideration including the exception pleaded by the accused, i' a reasonable doubt is created in the mind of the court then the accused person is entitled for the order of acquittal. 8. Let us first see the cases of the prosecution in so far as the original case is concerned. It may be stated at this stage that the prosecution relied on the alleged dyeing declaration of Jado Singh recorded in the hospital. It was produced with a charge-sheet but the prosecution could not prove it. In my opinion if the prosecution relied on any document, at best can say it is bound by it and cannot be allowed to say that it should not be rendered in evidence and, therefore, the accused take advantage of it. I am, therefore, unable to agree with the learned trial court that Ex P.9 cannot be read in evidence as the same has not been proved. I am, therefore, unable to agree with the learned trial court that Ex P.9 cannot be read in evidence as the same has not been proved. A bare reading of the charge-sheet will show that it is mentioned therein that the dying declaration of Jado Singh was recorded on 11th March 1982. That apart Dr. I.P.L. Hense PW9 has stated that the dying declaration was recorded of injured Jado Singh when he was admitted in the hospital. When Jado Singh PW11 was asked as to whether his statement was recorded in the hospital, he only said that he does not remember it, but he does not state that no such statement was recorded. Therefore, while considering the other material on record the dying declaration shall be taken into consideration. 9. A look at the A.I R. Ex P.l will show that it was lodged by Prem Singh PWI. Apart from the fact that it was a detailed report and appears to have been written after consultation with the advocate, it was lodged after 24 hours of the incident and the delay in filing the FIR. has not been reasonably explained. Prem Singh in his statement has tried to explain the delay but after going through his statement it can be said that reasonable explanation has not been given. The origin of fight is said to be as a result of the occurrence which is said to have been taken place in village Ratanpuia, a place where wrestling competition was going on. It is alleged that Vinod was given beatings by all the accused persons, the two accused and nine others who have been acquitted. Neither Vinod has been examined nor any injury report of him is on record. In the F.I.R it has been clearly stated that Premises received pellot injuries by gun shot and Jado Singh also received pellot injuries as well as bullet injuries. It was also stated that the two guns were fired at the same time and at the same place out of which one was 12 bore gun and the other was a riffle. It is also mentioned therein that the two guns were fired from the roof. According to the F.I.R., Premi received pellot injuries at the hands of Moola and it was accused appellants who had fired with their guns and Jadho Singh received injuries. Ex.P.6. It is also mentioned therein that the two guns were fired from the roof. According to the F.I.R., Premi received pellot injuries at the hands of Moola and it was accused appellants who had fired with their guns and Jadho Singh received injuries. Ex.P.6. the dying declaration of Jadho Singh which was tiled with the charge-sheet and it is not disputed that it was recorded, despite the fact that it will appear that there is no reference to any quarrel in between Vinod and the accused persons in village Ratanpura where wrestling competition was going on. Contrary to it the dyeing declaration was recorded by Krishna Dutta Sharma A S.I. DW5 under Ex D.9 that at about 9.00 p.m. on 11th March 1982 he was in village Kolua and a pandit and Moola and he (Jadho Singh) asked him, the mean time accused appellants also reached there. Even Jadho Singh does not dispute the recording of the aforesaid dyeing declaration and it can be said that Ex.P.9 was lodged after 24 hours delay and as stated earlier appears to have been lodged after consultation with an advocate. Even Ex D.9 it has been stated that Amrik Singh also fired pachfere and he had received injuries on his chest and on his elbow of the right hand. Now we come to the Ex D.9 the dyeing declaration of Jadho Singh recorded in the hospital at Agra and it will appear that it it not mentioned that the origin\of the fight was as is stated in the F.I.R. is not mentioned therein. 10. The first circumstance which is revealed from the record is that no blood was found inside\he house or the chabutra and inside the room where the occurrence is said to have taken place but surprisingly the learned Sessions Judge has said that there might have been rain and blood might have been washed away. In the absence of any such record, the learned Sessions Judge could not have observed that the blood might have been washed or removed by the complainant party. The fact is that the blood was not found at the p ace of occurrence, though Jadho Singh is said to have received injuries by gun shot. In the absence of any such record, the learned Sessions Judge could not have observed that the blood might have been washed or removed by the complainant party. The fact is that the blood was not found at the p ace of occurrence, though Jadho Singh is said to have received injuries by gun shot. Other circumstances is that as per the case of the prosecution which has been brought during trial of the case, the occurrence is said to have taken place as a result of earlier incident which had taken place in village Ratanpura where wrestling competition was going on and Vinod was beaten. Admittedly. PW2 Har Prasad and PWJ Bhagwan Singh were not the residents of village Kolua and they are residents of village Ratanpura, where the wrestling completion was going on. There was no occasion for them to have gone to the house of Prem Singh and to initiate the quarrel. It has come in the statement of PW2 Har Prasad and PW3 Bhagwan Singh that they were going to Naurangabad and were passing through the room of Premi where Prem Singh and others were sitting and they invited them to enjoy a puff of Bid is. A look at their cross-examination will show that it is not mentioned that as to why they were going to Naurangabad and, therefore, their presence at that time outside the house of the Premi, cannot be said to be innocent. It appears that they were already sitting there. As stated earlier the two accused persons were also injured by guns and received gun shot injuries which have not been explained by the prosecution, the case of the prosecution, therefore, in my opinion is rendered doubtful. Thus, because of there two circumstances the case of the prosecution cannot be relied upon and as stated earlier the aggrieved party if any was the complainant party, because the beating was allegedly administered to Vinod by the two accused appellants and nine others. 11. It is already said in the earlier part of the judgment that the two persons received gun shot injuries and have been proved by the defence. Not only two persons received injuries but a she-buffalow of Bhagwan Singh also received gun shot injuries. 11. It is already said in the earlier part of the judgment that the two persons received gun shot injuries and have been proved by the defence. Not only two persons received injuries but a she-buffalow of Bhagwan Singh also received gun shot injuries. In my opinion, the learned Sessions Judge could not have come to the conclusion though he has not said anything so far as the present judgment is concerned and had said so. 12. As stated earlier the learned Sessions Judge has not dealt with the defence evidence in this case and only said that he has in the cross case acquitted the accused persons and found the case false. It is well settled that the evidence in one case cannot be read in the other case and if there are two cross cases and separate trial should be conducted and separate judgment should be pronounced. In the end, I am of the opinion that the case against the accused persons is rendered doubtful, and benefit of doubt was given to the accused persons. 13. Consequently, I hereby allow this appeal and the judgment of the learned Addl. Sessions Judge, Dholpur dated 17.12.1986 in Sessions Case No. 61/1986 is set aside in so far as accused appellants are concerned. Both the appellants are acquitted of the charge against them. They are on bail and need not surrender to the bail bonds, which stand discharged.Appeal allowed. *******