N.L. TIBREWAL J.,—This appeal is directed against the judgment dated June 3, 1980 of learned Addl. Sessions Judge, Ajmer in Sessions Case No.73/79 (116/79) by which he acquitted the co-accused, namely, Smt. Rameshwari Devi, Jaikishan alias Misra and Bhagwan Singh alias Hira but convicted the appellants Krishna Kumar alias Lala and Ramesh Chand u/s 304 part II read with S.34 IPC and sentenced one of them to undergo four years R.I. and to pay a fine of Rs.1000/-. In default of payment of fine each of the appellant was further required to undergo R.I. for six months. 2. The prosecution case is that a minor daughter of the co-accused Rameshwari Devi was abducted by deceased Ghisu Singh on or about 22nd May 1979 and a report, Ex.P/14, was made at Police Station, Beawar. It is alleged that P.W.12 Babudin and one boy came to the village of Ghisu Singh, deceased and asked him to go along with them to meet with Smt. Rameshwari Devi for the compromise in the abduction case. Deceased Ghisu Singh came at Beawar, along with PW-12 Babudin reached at Royal Takeez at about 10.30 P.M. on August 25.1979. It is alleged that co-accused Misra, Hira and other persons were standing there in the Royal Takeez. When Ghisu Singh came there, they caught hold of the deceased Ghisu Singh and then he was taken to the house of co-accused Rameshwari Devi, who is also called as "Sethani" The prosecution case further is that the deceased Ghisu Singh was assaulted there by the appellants and "Sethani", i.e. Smt. Rameshwari Devi and on account of the injuries sustained by him, he became unconscious and that he was also beaten by the other Staff members. 3. About the same incident Smt. Rameshwari Devi made a report at the Police Station on telephone, which was received by P.W.I Mahender Singh. On getting the said information P.W. 25 Badri Narain, along with some police men, came on the spot and entry in "Roznamcha" Ex.p/28 was made by them, after returning from the place of occurrence in which this fact was also mentioned that deceased Ghisu Singh had given a knife blow on the right hand of Smt. Rameshwari Devi. This entry was made at about 11.00 P.M. on the same day just after the occurrence. PW-18 Dr. This entry was made at about 11.00 P.M. on the same day just after the occurrence. PW-18 Dr. Raja Ram Nadh examined the injuries of Smt. Rameshwari Devi and he found one incised wound over the right hand forearm lower part. Though this injury was found to be simple but it was by sharp edged weapon and M.L.R. Ex.D/10 was proved by this witness. Further Smt. Rameshwari Devi also made a report Ex.p/42 at the Police Station, Beawar on the same day just after the occurrence, in which she had mentioned about infliction of a knife blow to her by the deceased Ghisu Singh. This report is Ex.p/42 and this report has been proved by pw/25 Badri Narain, who was SHO.Station, Beawar. 4. It appears that after the police persons came on the spot, Chisu Singh was taken to hospital in an injured condition and he was admitted there. On August 26.1979 the police enquired from the doctor to verify whether Ghisu Singh was in a condition to make his statement, on which Pw/16 Dr. Sarla Panwar replied that the condition of the patient was serious and was not in a position to give the statement. This report was made by the doctor on August 26,1979 at about 10.00. However, subsequently a further communication Ex.P/16 was given by the same doctor to the effect that the patient was in a position to make statement and this information P.W/23 A.S.I. Naresh Babu came at the hospital and recorded the statement of Ghisu Singh which is Ex.P/17. This statement is said to have been recorded in the presence of Dr. Sarla Panwar and S.H.O. Badri Narain. On the basis of the statement the police registered the case u/ss. 307 and 325 IPC and started investigation. 5. The prosecution case further is that subsequently another statement of Ghisu Singh was recorded u/s. 161 Cr.P.C. and the same is Ex.p/45 on the record. 6. P.W. 18 Dr. Raja Ram head examined the injures of Ghisu Singh on 25.8.79 when he was admitted in Amrit Kaur Hospital, Beawar. The doctor found the following 10 injuries on his person:- 1. Lacerated wound with bleeding and deformity 1" x ½" bone deep on mid portion of left leg. 2. Lacerated wound with bleeding and deformity 1" x 1/3" on mid portion of right leg 3. Lacerated would ½ " x 1/10" near lateral opicordyle, right arm. 4. The doctor found the following 10 injuries on his person:- 1. Lacerated wound with bleeding and deformity 1" x ½" bone deep on mid portion of left leg. 2. Lacerated wound with bleeding and deformity 1" x 1/3" on mid portion of right leg 3. Lacerated would ½ " x 1/10" near lateral opicordyle, right arm. 4. Abrasion with deformity 1" x ½" lower half right forearm. 5. Abrasion swelling and deformity 1" x 1" area right forearm, upper part posteriorly. 6. Abrasion 1/3" x l/8" at. hand posteriorly. 7. Abrasion 1/3" x 1/3" posteriorly in mid portion. 8. Lacerated wound 2" x 1/8" Rt. index finger. 9. Bruise 3"xl" front of chest and clavical area left side. 10. Lacerated wound l"xl/10" size Root of great toe." 7. The report, Ex.p/24 was prepared by this doctor. However, Ghisu Singh died on August 29, 1979 and Dr. K.K. Dangaich, PW 20 conducted the post mortem of the dead body and prepared Ex.p/27. From the perusal of the postmortem report it appears that the number of injuries subsequently increased from 10 to 24. 8. The police, after completion of the investigation, submitted the charge-sheet against five persons, including the appellants. As stated above, the learned trial court, after completion of the trial, acquitted the three co-accused persons but convicted and sentenced the appellants. 9. Before I consider the various made by the learned counsel for the appellants I would like to give some of the findings which have been recorded by the learned trial court:- 1. With regard to the injury sustained by Smt. Rameshwari Dive, vide Injury Report Ex.P/10 the learned trial court disbelieved the prosecution case that this injury was self inflicted injury, as stated by PW-23 Surendra Kumar. The learned trial court further held that Smt. Rameshwari Devi had sustained the said injury in the same incident and this injury was caused by the deceased Ghisu Singh, prior to his beating. In the words of the learned trial court "I may mention here (in the beginning) that the deceased gave a knife blow also on the hand of Rameshwari Devi and that too before the beating started ":- 2. The trial court further held that when deceased Ghisu Singh want at Beawar to meet Smt. Rameshwari Devi he had no apprehension of any danger. The trial court further held that when deceased Ghisu Singh want at Beawar to meet Smt. Rameshwari Devi he had no apprehension of any danger. The trial court further found that the deceased had taken liquor just before going to meet Smt. Rameshwari Devi and that he was addicted to liquor and was a man of quarrelsome nature. The trial court further held that the deceased had gone along with P.W. 12 Babudin at the Royal Takeez for making a compromise :- 3. With regard to P.W. 1 Kailash the only eye witness of the occurrence, the learned trial court critically examined his statement and in para No.13 of his judgment gave 8 reasons to discard his testimony. The learned trial court held that P.W. 1 Kailash was not found present at the time of the occurrence and is a made up witness ;- 4. The trial court further held that the statement of the deceased u/s 161 Cr.P.C. Ex.p/45, is a document prepared by Badri Narain, SHO, and it was a clear figment of imagination :- 5. The learned trial court also held , so called statement of the deceased Ex P/17 which has been considered as the dying declaration, that it did not contain the whole of the truth. The learned trial court discarded that part of the statement of Ghisu Singh , Ex.P/17 , in which the deceased had implicated Smt. Rameshwari Devi also as one of the assailants. The trial court further held that Ex.p/17 did not mention a single word about the incident of giving knife blow to Smt. Rameshwari Devi. Referring the aforesaid two infirmities, the learned trial court observe that Ex.p/17 should be read cautiously:- 6. The learned trial court further held that the deceased had sustained only ten injuries in the beginning when he was examined by Dr. Raja Ram in the night of August 25,1979, but subsequently, the injuries were found to be as many as 24 at the time of post- mortem examination. About the increase of the injuries the learned Judge observed that the possibility that these injuries were received later on, cannot be ruled out; 10. Inspite of the aforesaid findings recorded by the learned trial court, appellants were found guilty u/s 304 part II and S.34 IPC. About the increase of the injuries the learned Judge observed that the possibility that these injuries were received later on, cannot be ruled out; 10. Inspite of the aforesaid findings recorded by the learned trial court, appellants were found guilty u/s 304 part II and S.34 IPC. In this connection the learned trial court also held that there was no intention of the accused persons to commit murder of deceased Ghisu Singh and the very fact that first blow was given by the deceased himself to Smt. Rameshwari Devi with a knife rule out such intention on the part of the appellants. The learned trial court, however, held that from the injuries caused by the appellant it could be inferred that they had the knowledge that the injured Ghisu Singh could have died on account of those injuries. 11. After reading the aforesaid finding of the learned trial court, the learned counsel for the appellants has made the following submissions before me:- (1) That the prosecution has suppressed the genesis of the occurrence, i.e. the manner in which the incident originated and it took place and the learned trial court has reconstructed a story which is not permissible in law : (2) That after having held that Ghisu Singh went to meet Smt. Rameshwari Devi, after taking liquor and that he went with a knife and inflicted a blow on the hand of Smt. Rameshwari Devi and that he first opened the attach, the right of private defence accrued to the accused such secton as s.34 I.P.C. cannot be invoked and there is no evidence that any of the appellant has caused any particular injury resulted in the death of Ghisu Singh, so as to hold him liable for exceeding private defence: (3) That the act of the accused persons completely protected as the appellants had acted in the right of private defence of persons: (4) That in any case, the conviction of the appellants u/s 304 part II I.P.C. is illegal as the learned trial court himself has recorded a finding that after the injuries were caused by the appellants, the deceased might have been given beating by some other persons later on as such it cannot be held that the death of the deceased was the result of the injuries caused by the appellants. 12. 12. On the other hand, the learned Public Prosecutor supported the judgment and conviction of the appellants. 13. I have given my thoughtful consideration on the rival contentions made by the learned counsel for the parties. I may at the very out set say that the whould approach of the learned trial court in deciding the case is perverse and erroneous in law. Suffice it to say that once the learned trial court found that the deceased Ghisu Singh had himself gone to meet Smt. Rameshwari Devi, after liquor and also with a knife and that he was first to open the attack, then a clear cut case of right of private defence of person accrued to the appellants as well as to Smt. Rameshwari Devi. In that situation, Sec. 34 I.P.C. cannot be invoked as the common intention of the accused cannot be said to be unlawful when they acted in the right of private defence. It is further note worthy that the trial court has also recorded the finding that other persons may have given further beating to the deceased, subsequently, completely rules out that the injuries caused by the appellant caused the death of the deceased. The doctor has not opined any particular injury to be responsible for the death of deceased, nor there is any evidence that a particular injury has been caused by any of the appellants. From the findings of the learned trial court, it is also clear that the prosecution has suppressed the genesis of the occurrence. In such a situation, the learned trial court committed serious error in reconstructing a story, after having discarded the prosecution case on material points. It is further clear that the investigating Agency is also guilty of manufacturing false evidence, as the learned trial court himself observed that Ex.p/45 is a clear figment of the imagination of the S.H.O. and no such statement was given by the deceased u/s. 161 Cr. P.C. 14. After the finding which have been recorded by the trial court, it is improbable to maintain the conviction of the appellants for the reasons mentioned above. The prosecution has clearly failed to prove the guilt against the accused beyond reasonable doubt. 15. Even Ex.P/17. P.C. 14. After the finding which have been recorded by the trial court, it is improbable to maintain the conviction of the appellants for the reasons mentioned above. The prosecution has clearly failed to prove the guilt against the accused beyond reasonable doubt. 15. Even Ex.P/17. the so called dying declaration, has not been followed by the trial court and at one part of his judgment the learned judge has observed that there were several other persons who had talked with the deceased in the same night and as such the possibility of littering the deceased to give out a particular story about the incident, cannot be ruled out, specially when dying declaration is silent about the injury sustained by Smt. Rameshwari Devi as held proved by the learned trial Court. 16. For the reasons mentioned above, I feel that it is a fit case in which the accused appellant should have been acquitted by the learned trial court. 17. Consequently, this appeal succeeds, the conviction and sentence of the appellants, as recorded by the learned trial court, are set aside.