S. I. JAFRI, J. Birbal, Nohar Dom sons of Buchcha, Halua Dom son of Birbal, residents of Mohalla Digiya Donkhana, police station Jaitpura, Varanasi and Narottam Dom son of Mohan, resident of Senpura, police station Chetganj, Varanasi have filed this appeal against their conviction under Section 304 Part II, I. P. C. and 323 I. P. C. and sentence of ten yars R. I. and six months R. I. under the afore -mentioned sections respectively passed by Sri J. P. Singh VI Additional Sessions Judge, Varanasi by his judgment and order dated 30. 5. 1979 in Sessions Trial No. 291 of 1976. 2. The case of the prosecution is that on 29. 9. 1976 the Dasawan ceremony of the grand mother (mothers) mother of Bhola P. W. 2 was held. He had given a feast to his biradari on that day. About 100 guests had taken their meals upto 5. 00 p. m. on that day. However, 10 or 12 more persons were waiting for the food to be served to them. At that time the maternal grand father of Bhola asked him to call Birbal and others for taking their food. Bhola went to call Birbal at his house and requested Birbal to go with him for taking his food. Co-accused Nohar, halua and Narottam were also present there with Bhola. Birbal asked Bhola to bring their food at that particular place. Bhola retorted that if he was Lat Saheb, then he would have brought their food to that place. Birbal on hearing the reply insti gated his companions to assault Bhola. Birbal caught hold of Bhola and started beaming him and also struck him with stone. The rest of the accused belaboured Bhola with their hands. On the alarm raised by Bhola, number of persons including Jang Bahadur P. W. 1, Panna Manohar and his mother reached the scene of occurrence and they stopped the accused from beating Bhola. In the mean time Mewa, the father of Bhola also arrived there and tried to intervene and he took Bhola in his lap. Thereupon, the accused persons also assaulted Mewa. Birbal struck Mewa on his head and Mewa fell down. Birbal asked his companions to kill him whereupon Narottam struck a stone on the head of Mewa. In the mean time Mewa, the father of Bhola also arrived there and tried to intervene and he took Bhola in his lap. Thereupon, the accused persons also assaulted Mewa. Birbal struck Mewa on his head and Mewa fell down. Birbal asked his companions to kill him whereupon Narottam struck a stone on the head of Mewa. Thereafter, Bhola went to police station and lodged a first information report and case under Sections 323 and 324 I. P. C. was then registered against the accused Mewa was sent to the Hospital for medical examina tion along with Bhola. Panna and Manohar remained there at the police station. When Bhola reached the hospital he was informed that his father had succumbed to his injuries. Thereafter, on 29. 9. 76 at 8. 30 p. m. on receiving the information regarding the death of Mewa, the case under Sections 323 and 324 I. P. C. was converted to one under Section 304 I. P. C. in Crime No. 207 of 1976 against the appellants in the general diary of the police station. 3. Investigation followed. Dr. S. K. Gupta, Medical Officer, S. S. P. G. Hospital, Varanasi P. W. 3 conducted the autopsy on the dead body of Mewa at 2. 30 p. m. on 1. 10. 76. He had found the following antemortem injuries: 1. Lacerated wound 6 cm x 1 cm x scalp on the top of the head 14 cm above the right ear. 2. Lscerated wound 2 cm x 1/2 cm scalp deep on the right side occipital region 9 cm posterior to right ear. 3. Contusion 2 1/2 cm x 1 cm on the back of the left elbow. 4. Contusion with abrasion 2 cm x 1 cm on the back of right elbow. According to the opinion of the Doctor the death was caused due to shock and haemo rrhage as a result of injuries. 4. Bhola was also examined by Dr. V. P. Singh, P. W. 6 Medical Officer, S. S. P. G. Hospital, Varanasi on 29. 9,1976 at 7. 00 p. m. and he had found the following injuries: 1. Lace rated wound 21/2 cm x 3/4 cm x muscle deep on the left side forehead 2 cm above left eye brow. 2. Traumatic swelling 8 cm, x 6 cm on the lower part back of right arm extending upto upper part of forearm. 3. 9,1976 at 7. 00 p. m. and he had found the following injuries: 1. Lace rated wound 21/2 cm x 3/4 cm x muscle deep on the left side forehead 2 cm above left eye brow. 2. Traumatic swelling 8 cm, x 6 cm on the lower part back of right arm extending upto upper part of forearm. 3. Abraded contusion 4 cm x 2 1/2 cm front of upper part of left leg. 4. Complain of pain in chest right side. All the injuries were simple in nature and were caused by blunt weapon like stone pieces. 5. Charge-sheet was submitted against the accused after investigations. The accused pleaded not guilty to the charge. Birbal accused stated that Bhola had come to call him for taking food and he had replied that the time was not proper for taking food and told him that he would take his food after some time. Thereupon Bhola said that he had become Lat Saheb. Bhola then abused him. Bhola Mewa, Dafedar, Nanhan, Khatakoo Chhotak, Gopal and others had then assaulted him and others. They had belaboured his wife and sister. He also stated that Mewa had fallen down on the ground as he was over drunk and that he thus received injuries on his head. 6. Narottam accused stated that he had gone in the feast which was arranged at the house of Nanak. Bhola came to call Birbal. Birbal told that he would take his food after some time as that was not the proper time. Bhola abused him and he along with Khatakoo, Chhotak, Balamoo and others belaboured him with lathis and. they had also beaten the wife and sister of Bribal. The other accused persons had stated that they would file written statements but they did not file any such statement. 7. In support of the prosecution case in all six witnesses were examined and out of them Jang Bahadur P. W. 1 Bhola P. W. 2 and Smt. Shanti Devi P. W. 4 were examined in support of the prosecution case as eye witnesses of the occurrence. 8. Jang Bahadur P. W. 1 deposed that on the alleged date of occurrence Bhola had gone to call Birbal and others for taking food. The accused said that they would take their food at the place of Birbal. 8. Jang Bahadur P. W. 1 deposed that on the alleged date of occurrence Bhola had gone to call Birbal and others for taking food. The accused said that they would take their food at the place of Birbal. Bhola retorted that they were like Lat Saheb, and; thereupon on the instigation of Birbal, Birbal and Narottam and other accused caught hold of Bhola and they belaboured him with slap and fists. Birbal also struck a stone upon Bhola which hit his hand. He, Panna, Manohar and Smt. Shanti tried to intervene Birbal instigated and struck a stone on the head of Mewa. Mewa had fallen down. Mewa was taken to Kabir Chaura Hospital where he succumbed to his injuries. 9. Bhola P. W. 2, who is the informant and son of Mewa deceased, has supported the evidence of Jang Bahadur. He is also an injured. 10. Smt. Shanti P. W. 4 is the wife of the deceased Mewa and mother of Bhola P. W. 2 She has also corroborated the statement of Bhola P. W. 2, The evidence of Jang Bahadur P. W. 1, Bhola P. W. 2 and Shanti P. W. 4 has been criticised by the learned counsel for the appellants on the ground that they had failed to explain the injuries on the side of the accused and, therefore, it was vehemently urged that they have not given a true version of the occurrence. 11. The defence has examined Dr. B. B. Rai D. W. 1 who has stated that he has examined Nerottam accused in S. S. P. G. Hospital, Varanasi on 1. 10. 1976 at 4. 00 p. m. and he found the following injuries on his person: 1. Lacerated wound 2 cm x 4 cm x scalp deep on the head on right side 13 cm above the right ear, wound is partially healed. 2. Lacerated wound 14 cm x 4 cm x scalp deep on head on left side 8 cm above the left ear, the wound is partially healed. 3. Multiple abrasions in area of 8 cm x 5 cm on the front of the right knee. Scab is fully formed crust is not removed it is intact. 4. Contusion 4 cm x 3 cm on the inner side of the left knee joint bluish. 5. 3. Multiple abrasions in area of 8 cm x 5 cm on the front of the right knee. Scab is fully formed crust is not removed it is intact. 4. Contusion 4 cm x 3 cm on the inner side of the left knee joint bluish. 5. Abrasion 17 cm x 4 1/4 cm on the front portion of upper part of right fore-arm. The same day at about 4. 13 p. m. Dr. B. B. Rai has also examined the injuries on the person of Birbal and he had found the following injury on his person: Lacerated wound 1 1/2 cm x 1/2 cm scalp deep on the head of left side 8 cm above and slightly forward from the left ear, wound is partially heated. On the same day he had also examined the injuries of Smt. Tara Sundari and found toe following injury on her person: Contused swelling 9 cm x 6 1/2 cm on the outer aspect of right thigh 7 cm above the right knee joint. Bluish black. It had also examined Smt, Shyama the same day at 4. 35 P. M. but did not find any visible injury though she complained of pain on the upper part of her abdomen. All the injuries were in simple mature and were caused by blunt weapon and the injuries were about 2 days old at the time of the examination. 12. I have perused the injury reports on the side of the accused found on four persons. The injuries are on vital parts of the body of Narottam, Birbal and these injuries cannot be self inflicted being of a serious nature I am fully satisfied that the prosecution has not come forward with a true version of the occurrence. Smt. Shyama, wife of Birba D-W. 2 has deposed that at about 4 and 5 PM about 2 1/2 years ago, the Dasawan cere mony of the wife of Nanale was being cele brated and number of people were invited at that feast. Nanhak came to her house to call her husband etc. and asked them to take their food. Whereupon they said that it was not the proper time for taking food and they would lake food afterwards. Nanhak came to her house to call her husband etc. and asked them to take their food. Whereupon they said that it was not the proper time for taking food and they would lake food afterwards. There upon Nanhak started abusing them and had belaboured her son Lalloo, She went to lodge a report at the police station but the same was not taken down by the police. When the returned und Nanhak came to know that her report was not taken down at the police station, Nanhak, Bhola, Gola, Dafedar, Chhotak, Khatakoo, Jhalakoo and Gopal armed with lathies and Danda arrived at he: door and started belabouring her husband and others. She further stated that the assailants were all drunk and were under intoxication. She further deposed that Narottam, Birbal and her sister-in-law Tara Sundari had received injuries. She also stated that Mewa deceased, Bhola and Gola tried to criminally assault her. Nand Tara Sundari. Thereupon they had challenged; Mewa and others and they had run away. Mewa was over drunk and he fell down on the road and became uncon scious. She further stated that subsequently she came to know that Mewa had died, 13. I have very carefully gone through the statement of Smt, Shyama land her evidence inspires confidence. 14. Admittedly the occurrence in this case has taken place at the door of Birbal, accused. It appeals that the prosecution has deliberately suppressed the true version of the occurrence. The injuries of the accused side which are of serious nature and on vital parts of their persons go to show that the complainants side was the aggressor. Under tie circumstances, the appellants had rightly exercised their right of self defence in causing injuries to Bhola complainant and others. 15. Considering the facts and circumstances of the case, the conviction and sentence of the appellants recorded by the trial court, cannot be sustained. 16. In the result the appeal is allowed. The conviction and sentences recorded against the appellants by Sri J. P. Singh, VI Additional Sessions Judge, Varanasi are set aside. The appellants are on bail. They need not surrender. Their bail bonds are discharged. Appeal Allowed .