G. P. MATHUR, J. ( 1 ) CRIMINAL Appeal No. 730 of 1977 has been filed by ten accused, namely, Babu Ram, Maniram, Ramjit, Sheo Das, Ram Das, Khaderu, Lochan, Dular, Channu and Chandrabali against the judgment and order dated 14. 7. 1977 of the JInd Addi. Sessions Judge, Azamgarh, passed in Sessions Trial No. A 37 of 1976 by which they have been convicted under Section 147, 148, 323/149,307/149 and 302/149 IPC and have been sentenced to various terms of imprisonment including life imprisonment under section 302/149 IPC. The State has filed Government Appeal No. 2393 of 1977 against Sadafal, accused who was tried along with the above mentioned ten accused but was acquitted. ( 2 ) THE case of the prosecution, in brief, is that there is a pond known as Gungwa Tal in village Kusuwa. Some paddy fields of the informant Mumlaj Ahmad are irrigated from the water of the aforesaid Gungwa Tal which flows through a Baha (channel ). It is alleged that the now of water from the Baha was slopped by constructing a Bandht by accused Ram Das and Sheo Das. At about 5. 30 P. M. on 25. 9. 1975 the informant Mumtaj Ahmad started cutting the Bandh for the purpose of irrigating his fields. Sheo Das, Ram Das and Khaderu, appellant Nos. 4 to 6, were present on the spot and they asked not to cut the Bandh. The informant told him that his crop was drying for want of irrigation. On this the aforesaid three person started abusing him and called their co-villagers saying that the people of village Chitara were opening the Baha for the purpose of flowing of water. Thereafter Babu Ram, Mani Ram, Ranjit, Lochan, Dular, Channu. Chandrabali and Sadafal arrived there armed with lathi. gandasa and ballam and started assaulting, On the alarm raised by the informant Mumtaj Ahmad, his brothers Iqba: Ahmad and Manjoor Ahmad and Lal Bahadur, Aftab, Khere Yadav, Abdul Khair, Aijaj Ahmad and Sheogatullah of his village came there. The accused also assaulted Iqbal Ahmad, Manjoor Ahmad and Lal Bahadur. The informant and the persons of his village also weilded lathis and dandas in their self defence. In the incident the informant Mumtaj Ahmad, Manjoor Ahmad and Lal Bahadur received injuries and Iqbal Ahmad died on the spot. Thereafter the informant lodged a written F. I. R. of the incident at 9. The informant and the persons of his village also weilded lathis and dandas in their self defence. In the incident the informant Mumtaj Ahmad, Manjoor Ahmad and Lal Bahadur received injuries and Iqbal Ahmad died on the spot. Thereafter the informant lodged a written F. I. R. of the incident at 9. 30 P. M. on 25. 9. 1975 at P. S. Didarganj which is five miles from the place of occurrence. P. W. 7 Tej Pratap Singh, Station Officer of P. S. Didarganj, started investigation of the case after the F. I. R. had been lodged. He prepared inquest report on the dead body of Iqbal Ahmad which had been brought to the police station. The body was thereafter sent to Sadar for post-mortem examination. Manjoor Ahmad had received severe injuries and, therefore, he was sent for medical examination and treatment to the District Hospital along with Constable Katwaroo Ram. He also recorded the statement of Mumtaj Ahmad and Lal Bahadur and thereafter sent them for medical examination and treatment. He reached the spot on 26. 9. 1975 recorded the statement of other witnesses, prepared site plan and took in his possession blood-stained and plain earth. After completing the investigation he submitted charge-sheet Ex. Ka 10 against the eleven accused. ( 3 ) LAL Bahadur and Mumtaj Ahmad were medically examined at 6. 30 A. M. and 7 A. M. respectively on 26. 9. 1975 by P. W. 9 Dr. Aijaj Ahmad, Medical Officer In-charge, State Dispensary, Kushalgaon. Following injuries were found on the body of Lal Bahadur1. Contusion - 4-1/2 x 1" on right elbow joint at outer surface. The colour of the contusion is red. 2. Complains of pain of right side of chest in front surface. Remarks:- Simple injury caused by blunt weapon. Duration:- About within half day. The injury report is Ex. Ka 13. Following injuries were found on the body of Mumtaj Ahmad: 1 Lacerated wounds 2 x 1/10 x 2/10 in front of right side of scar above the right eye-brow. Clotted red blood found in the wound. 2. Contusion - 2 x 2 on right side chest just above the right nipple. Colour of the contusion is red. Remarks :- Injuries are simple (No. 1 and II) caused by blunt weapon. Advised X-ray about P. A. keep under observation. Duration:- About half day. The injury report is Ex. KA 14. Clotted red blood found in the wound. 2. Contusion - 2 x 2 on right side chest just above the right nipple. Colour of the contusion is red. Remarks :- Injuries are simple (No. 1 and II) caused by blunt weapon. Advised X-ray about P. A. keep under observation. Duration:- About half day. The injury report is Ex. KA 14. Manjoor Ahmad was medically examined at 12. 15 AM on 26. 9. 1975 by P. W. 3 Dr. L. L. Deewan in the District Hospital, Azamgarh. It appears that the medical examination was done at 12. 15 in the night and instead of writing oo15 hrs. on 26. 9. 1975 the doctor has wrongly written p1215 AM on 26. 9. 1975. Following injuries were found on the body of Manjoor Ahmad: 1. Vertical L. W. on right side occipant 1_1/2t1 x 1/4x bone deep, fresh. 2. L. W. 2 above the Inj. No. 1, in middle of scalp in oblique direction 2 x 1/4 x muscle, fresh. 3. Star shaped L. W. presenting 2 main limbs. Vertical 1-1/2 x 1/4 x bone and other oblique 2-1/2 x 1/4"x bone with star like projection on right parietal bone 2 above the right ear, fresh bleeding. 4. Horizontal abrasion on right side cheek starting from. . . 1-1/2 x 1/4 with troumatic swelling all around 3t1 x 2. 5. Troumatic swelling on. . . left hand. . . . on radical side 3-1/4 x 3 with deep tenderness. Advised X-ray. 6. Contusion in middle of right arm. . . . medial surface in horizontal direction 2_1/2t1 x 1_1/2t1. Bright red in colour. 7. Contusion on middle of buttock in oblique horizontal on both side of vertebral column 8 x i". Bright red colour. Injury Nos. 6 and 7 simple, blunt, fresh other injuries blunt, fresh; V. O. G. O. poor. Rt. respond-pulse 80 p/mt. Admitted S. Ward. The injury report is Ex. Ka 2. P. W. 10 Dr. C. K. Gupta conducted post mortem examination on the dead body of Iqbal Ahmad at 8 A. M. on 27. 9. 1975 and found the following ante-mortem injuries on his body:1. Lacerated wound 3 x i" x bone deep on the right side of head 4" above the right ear. 2. Lacerated wound i" x i/2" x bone deep on the right side of head 2" above the right ear. 3. 9. 1975 and found the following ante-mortem injuries on his body:1. Lacerated wound 3 x i" x bone deep on the right side of head 4" above the right ear. 2. Lacerated wound i" x i/2" x bone deep on the right side of head 2" above the right ear. 3. Lacerated wound 1/2 x 1/2 x bone deep 1/2" below injury No. 2. Skull bones have been separated in places underlying. 4. Incised wound 1/2 x 1/4" x bone deep just behind the right car. 5. Incised wound 1 x 2/10 x through and through of right external ear. 6. Incised wound 1/2 x 1/4 x bone deep on the back of head in the occiput. 7. Incised wound i" x 1/2 on the right shoulder joint skin deep. 8. Multiple contusion all over the face and left side of neck. 9. Multiple contusion over the whole of the back measuring for 1/2 x 1/2 to 6 x 4. 10. Contusion 2-1/2 x i" on the right middle. . . of upper arm. 11. Contusion 3 x 2 on the right thigh lateral aspect middle. ( 4 ) ON internal examination multiple fracture of skull bone, which had separated in multiple pieces, was found. The brain was found congested and clotted blood had collected. The base was found fractured in the middle and clotted blood was present. In the opinion of the doctor death was due to severe head injury as a result of ante-mortem injuries. In the opinion of the doctor the death could have occurred at 5. 30 P. M. on 25. 9. 1975. The post mortem report is Ex. Ka 15. After commital of the case to the Court of Sessions the learned Sessions Judge framed charge under Section 147 IPC against appellant Nos. 1,2,3, 7,9 and 10 and charge under section 148 IPC against appellant Nos. 4, 5, 6 and 8 and Sadafal accused. All the accused were further charged under sections 323, 307 and 302 all read with section 149 IPC. ( 5 ) DURING trial accused other than Sheo Das and Khaderu denied the prosecution case and stated that they were not present on the spot at the time of the occurrence and alleged their false implication on account of enmity. Appellant No. 4 Sheo Das stated under section 313 Cr. ( 5 ) DURING trial accused other than Sheo Das and Khaderu denied the prosecution case and stated that they were not present on the spot at the time of the occurrence and alleged their false implication on account of enmity. Appellant No. 4 Sheo Das stated under section 313 Cr. P. C. that on account of shortage of water people from Kusuwa village had constructed a bandh on the Baha. Irrigation in Chitara village was not done from this Baha but was done from the eastern Baha. On the date of incident 12 persons including Iqbal and others came to the Baha and with the object of wasting water, Mumtaj and Lal Bahadur started cutting the Bandh. This was objected to by him and Khaderu. However, Iqbal and others did not stop and started giving abuses. Thereafter Iqbal fired from a country made pistol due to which he received injuries on his hand. Lal Bahadur assaulted him with a lathi on his head. Iqbal then tried to fill a second cartridge in the pistol and Mumtaj assaulted Khaderu with lathi. On their alarm many people from Chamrauti and the village came and they assaulted Iqbal and his companions for defending him and Khaderu. He and Khaderu also used danda in self-defence due to which some people from the side of Iqbal received injuries. He further stated that he lodged a first information report at the police station and was medically examined. He also stated that Muslim accused of the cross case were rich and they had got the accused of the present case prosecuted. The doctor was also under their influence. Sheo Das further stated that water cannot now to Chitara village from the western Baha as it is on high level nor this Baha was ever used for irrigation purpose. The informant irrigates his plot No. 2175 from the Nali going from the eastern Baha. Appellant No. 6 Khaderu stated in his statement under section 313 Cr. P. C. that his statement should be taken as the same which was given by Sheo Das accused. ( 6 ) THE prosecution in support of its case examined four eye-witnesses, namely P. W. 1 Mumtaj Ahmad, P. W. 2 Abdul Khair, P. W. 4 Lal Bahadur and P. W. 5 Sheogatullah. The prosecution also examined three doctors, namely P. W. 10 Dr. ( 6 ) THE prosecution in support of its case examined four eye-witnesses, namely P. W. 1 Mumtaj Ahmad, P. W. 2 Abdul Khair, P. W. 4 Lal Bahadur and P. W. 5 Sheogatullah. The prosecution also examined three doctors, namely P. W. 10 Dr. C. K. Gupta who had conducted post-mortem examination on the body of the deceased, P. W. 3 Dr. L. L. Deewan and P. W. 9 Dr. Aijaj Ahmad who had examined the injured. Besides them P. W. 6 Suraj Nath Singh Constable, P. W. 8 Shanker Dayal Tripathi Head Constable and P. W. 7 Tej Pratap Singh. The Investigating officer of the case were also examined. The learned Sessions Judge believed the prosecution case and convicted appellant Nos. 1,2,3,7,9, and 10 under Section 147 I. P. C. and sentenced them to one years R. I. , appellant Nos. 4, 5, 6 and 8 were convicted under section 148 IPC and were sentenced to two years R. I. All the appellants were further convicted under Sections 323, 307 and 302 IPC all read with section 149 IPC and were sentenced to one years R. I. , five years R. I. and imprisonment for life respectively. Sadafal accused was found not guilty of the offences for which he was charged and was accordingly acquitted. As stated earlier the ten accused who have been convicted have preferred the present appeal while as stated the State has filed Government Appeal against the acquittal of Sadafal. ( 7 ) WE have heard learned counsel for the appellants and learned State Counsel at considerable length and have examined the record. P. W. 1 Mumtaj Ahmad has stated that he is the resident of village Chitara and people of Chitara have got cultivation in both Chitra and Kusuwa villages. There is a pond in village Kusuwa known as Gungawa Tal towards north of village Chitara. A Bala (channel) flows towards south from Gungawa Tal and goes towards Bahokhar. He has a field immediately adjoining and towards east of the Baha in village Chitara. There was paddy crop in the said field at the time of the incident. There is a kachcha road towards west of Chitara village and there is a culvert over the Baha on the said road. He has a field immediately adjoining and towards east of the Baha in village Chitara. There was paddy crop in the said field at the time of the incident. There is a kachcha road towards west of Chitara village and there is a culvert over the Baha on the said road. The abadi of village Chitara was at a distance of 1 1/2 furlongs from the Baha and abadi of village Kusuwa was one furlong north of the culvert. The Chamrauti of village Kusuwa was at a distance of 100 yards. The aforesaid paddy field was always irrigated from the water of Gungawa Tal from the said Baha. Sheo Das and Ram Das had stopped the flow of the water from the Baha by making a Bandh in the Baha. This Bandh was about 1-1/2 2 latthas towards south of the culvert and was waist high. At about 5. 30 PM on the date of occurrence he went to the Baha for opening the same so as to allow the water to flow. When he started cutting the Bandh accused Sheo Das, Ram Das and Khaderu, who were present there armed with Gandasa asked him not to cut the Bandh. He, however, said that his crop was drying and therefore he would cut the Bandh. On this they raised an alarm calling their village people saying that persons from Chitara village wanted to cut the Bandh for flowing water. On this Mani Ram, Babu Ram, Ram Jit, Channoo, Lochan and Chandra Bali, all armed with lathis, Sadafal armed with Balram and Dular armed with gandasa came to the spot. Channoo and Mani Ram started assaulting him with lathis. On his alarm his brothers Iqbal Ahmad and Manjoor Ahmad and Lal Bahadur, Khere Yadav, Abdul Khair, Sheogatullah, Fakrealam and Aftab came on the spot. Ram Das, Sheo Das, Babu Ram, Mani Ram, Khaderu, Dular, Ramjit started assaulting Iqbal with their respective weapons. Lochan, Chandra Bali and Channoo assaulted Manjoor with la/his. Lal Bahadur was also assaulted with lathis. Mumtaj and others used la/his in self-defence. Iqbal died on the spot. After many people had arrived the accused ran away. He got a First Information Report of the incident scribed by Jorar Ahmad and lodged the same at the police station. The dead body of Iqbal Ahmad was also taken there. Lal Bahadur was also assaulted with lathis. Mumtaj and others used la/his in self-defence. Iqbal died on the spot. After many people had arrived the accused ran away. He got a First Information Report of the incident scribed by Jorar Ahmad and lodged the same at the police station. The dead body of Iqbal Ahmad was also taken there. The injured Manjoor and Lal Bahadur also accompanied him to the police station. In his cross-examination he stated that there is another Baha at a distance of 100-125 yards from the Baha over which the Bandh had been constructed and the said Baha was in his village. The irrigation of all the fields in village Chitara, except his one field, was done from the eastern Baha. He, however, could not give the number of his that field which is not irrigated from the eastern Baha though the same was in Chitara village. When a specific question was put to him as to whether number of his field was 2175 he stated that he did not know. Subsequently in reply to question No. 27 the witness contradicted himself and stated that hundreds of fields which were situate to north and south of his field in his village were not irrigated from the eastern Baha. Again in reply to question No. 54 he stated that apart from him Maulavi Rashid Jamaluddin and others irrigated their field from western Baha. In reply to question No. 50 he stated that the Bandh had been made on the date of the occurrence and earlier he had seen water flowing from the same. In reply to question No. 50 he stated that his paddy field is not irrigated from tube well during rainy season. Regarding the incident he stated that he went alone to get the Bandh cut and the accused were already sitting there armed with gandasa. He started cutting the Bandh and when the accused started abusing him he stopped. He had a Fawara with him and the gandasas of the accused were fixed with lathis. In reply to question No. 105 he stated that when he was cutting the Bandh the accused did not-assault him. Thereafter the three accused (Sheo Das, Ram Das and Khaderu) shouted that GAON WALO DAURO CHITARA WALE PANEE KAT KAR BAHA RAHE HAIN (Village people run- persons from Chitara are permitting the water to flow ). In reply to question No. 105 he stated that when he was cutting the Bandh the accused did not-assault him. Thereafter the three accused (Sheo Das, Ram Das and Khaderu) shouted that GAON WALO DAURO CHITARA WALE PANEE KAT KAR BAHA RAHE HAIN (Village people run- persons from Chitara are permitting the water to flow ). The other co-accused came in about 1-1/2 minute of the alarm. The accused came armed with weapons from the north side and thereafter started assaulting after surrounding him. He further stated that after he had been assaulted with lathis witnesses came and the accused also started assaulting after surrounding them. In reply to question No. 120 as to who raised the alarm first he gave reply Teeno Muljiman Shor Kar Rahe The Ki Mar Rahe Ham Mar Rahe Ham Mai Shor Kar Raha Tha Ki Bachao (All the three accused were raising alarm Are beating - are beating and I was raising alarm Save ). In reply to question No. 122 he stated that his all the witnesses came armed with dandas and in reply to question No. 126 he stated that nine witnesses from his side took part in the incident. Regarding the four accused armed with gandasa he stated that they only assaulted Iqbal and none else and so long the marpit lasted all the four armed with gandasa kept on assaulting Iqbal alone. In reply to question No. 148 he admitted that appellant No. 8 Dular has filed a criminal complaint against him, Iqbal, Manjoor and Nanoo prior to the incident and appellant No. 3 Ramjit was witness against them in the said complaint and the case was still pending. He further admitted that on the report lodged by appellant No. 4 Sheo Das a case under section 307 IPC was pending against him, Lal Bahadur, Manjoor and others in the same court. He, however, denied the defence suggestion that he along with others had cut the Bandh on the. Baha due to which water was being wasted and when Sheo Das and Khaderu accused forbade them from doing so, Iqbal fired from a country made pistol due to which Sheo Das received injuries and Khaderu was also assaulted. He further denied that on the alarm of Sheo Das and Khaderu many people came from Chamrauti and the village and assaulted them in self-defence. PW. He further denied that on the alarm of Sheo Das and Khaderu many people came from Chamrauti and the village and assaulted them in self-defence. PW. 2 Abdul Khair in his statement corroborated the statement of P. W. 1 Mumtaj Ahmad. He stated that about 5. 30 PM on the date of incident he was in his field which is at a distance of little less than one furlong from the culvert. After hearing the alarm he went towards the culvert and when he was at a distance of 60-70 paces he saw the accused assaulting the informant Mumtaj, deceased Iqbal, Manjoor and Lal Bahadur. He has also described the weapons in the hands of each accused and has further stated as to which accused assaulted the informant and the deceased. Towards the end of his examination-in-chief he stated that the incident took place as Mumtaj was cutting the Bandh and that the informant and others used lathis in self-defence. It appears that he did not see the origin of the marpit and reached near the place of occurrence when the assault was actually being made by the accused persons. In his cross-examination he has admitted that his father Ajimullah was assaulted in the year 1955 and appellant No. 5 Ram Das was accused in the said case but he was acquitted. He expressed his ignorance as to whether Baldeo, father of appellant No. 10 Chandrabali was also accused in the said case. He admitted that in his statement under section 161 Cr. P. C. he had not stated that he had reached the spot after hearing alarm at his field. He also admitted that he, Iqbal and Mumtaj were armed with dandas. In reply to question No. 51, 56 and 57 he stated that seven persons had surrounded Iqbal and were assaulting him and that person armed with gandasa did not assault anyone else except Iqbal. In reply to question No. 52 he stated that he did not see any injury on the person of anyone of the accused. P. W. 4 Lal Bahadur has also corroborated the statement given by P. W. 1 Mumtaj. He has stated that at about 5. 30 PM he was in his field when he heard the abuses and Ram Das shouted calling his village people. P. W. 4 Lal Bahadur has also corroborated the statement given by P. W. 1 Mumtaj. He has stated that at about 5. 30 PM he was in his field when he heard the abuses and Ram Das shouted calling his village people. He has also given details of the weapons with each of accused and which particular accused assaulted which person. Towards the end of his examination in chief he has given reason for the incident and it appears that he had not seen the actual cutting of the Bandh by Mumtaj and the objection raised by appellants Nos. 4 to 6. In cross-examination he has admitted that he is accused in the cross-case. In reply to question No. 18 he has stated that mar pit had started even before Manjoor and Iqbal had reached the spot. In reply to question Nos. 21 to 24 he has admitted that tie had not stated in his statement under section 161 Cr. P. C. that two Bahas were coming out of Gungwa Tal and that Lochan had assaulted him with lathi. P. W. 5 Sheogatullah is the fourth eye-witness examined by the prosecution to corroborate the statement given by P. W. 1 Mumtaj. He has stated that at about 5. 30 P. M. on the date of occurrence he was returning after seeing his field. On hearing the alarm he reached the spot where he saw that Mumtaj and appellant Nos. 4 to 6 were exchanging abuses. Thereafter the remaining eight accused came there armed with various weapons and started assaulting Mumtaj. Mean while Manjoor and Iqbal also came on the spot and they were also assaulted. In his cross- examination he has admitted that his father Rahamtullah and Ajimullah father of P. W. 2 Abdul Khair were brothers. He has also admitted that in the murder case of the year 1955 - Ram Das, appellant No. 5, was accused. In reply to question No. 10 he has admitted that when he saw for the first time three accused were present on the spot and the remaining accused had come on the culvert and all the witnesses had also reached there. He also admitted that he was armed with a danda. In reply to question Nos. 14 and 15 he has stated that he had told the 1. 0. He also admitted that he was armed with a danda. In reply to question Nos. 14 and 15 he has stated that he had told the 1. 0. that he had heard the alarm from 70-75 steps but he does not know why the said fact was not written in his statement. He has admitted that he had not shown his field to the 1. 0. Re has admitted in reply to question No. 23 that at the time when the abuses were being exchanged Mumtaj was armed with a lathi and the three accused were armed with gandasa but they did not try to assault Mumtaj. He has categorically admitted in reply to question No. 26 that Mumtaj was assaulted after all the eleven accused had arrived on the spot and that all the witnesses had also reached there. He has further admitted that all the ten persons on his side used lathi to prevent the assault upon them. In reply to question No. 39 he has stated that each accused armed with gandasa plied his weapon two or three times. ( 8 ) AS stated earlier P. W. 10 Dr. C. K. Gupta conducted post-mortem examination on the body of the deceased and P. W. 3 Dr. L. L. Deewan medically examined Manjoor in the District Hospital. P. W. 9 Dr. Aaijaj Ahmad had medically examined Lal Bahadur and Mumtaj. The injury reports as well as the post mortem report have been detailed in the earlier part of this judgment. In his crossexamination Dr. Aijaj Ahmad proved the injury reports of appellant No. 4 Sheo Das and appellant No. 6 Khaderu, who were medically examined at 7. 30 A. M. and 8 A. M. respectively on 26. 9. 1975. Following injuries were found on the body of Sheo Das 1. Lacerated wound 1-1/2 x 2/10 x 1/10 on left side of scapula 3-1/2 above the left eye, clotted blood found in the wound. 2. Lacerated wound 4/10 x 2/10 x 3/10 in right forearm 2-1/2 above the worm end of radius. 3. Complain of pain over the chest and forearm. Remarks - Injury No. 1 caused by blunt weapon No. 2 caused by fire arm - Advised X-ray. Duration - About half day. The injury report is Ex. Ka 3 on the record. The following injuries were found on the body of Khaderu: 1. 3. Complain of pain over the chest and forearm. Remarks - Injury No. 1 caused by blunt weapon No. 2 caused by fire arm - Advised X-ray. Duration - About half day. The injury report is Ex. Ka 3 on the record. The following injuries were found on the body of Khaderu: 1. Contusion 4 x 1 in right thigh in front surface and about middle part. 2. Complain in pain rim in front. Remarks:- Simple injury caused by blunt weapon. Duration :- About half day. The injury report is Ex. Kha 4 on the record. PW. 9 Dr. Aijaj Ahmad stated that injury No. 2 of Sheo Das was caused by fire-arm and he had advised X-ray examination of the right of fore-arm. In his statement he has stated that the said injury could be caused by a fire-arm, but it had not been confirmed. He had some doubts and, therefore, he had given opinion for X-ray examination. He has clarified his statement that though this fact was not noted in the injury report that by had doubt about the weapon by which the said injury was caused but the very fact that he advised X-ray examination meant that he had doubt about the same. In reply to question No. 15 he has stated that he had rightly written in the injury report that the said injury was caused by a fire-arm but he had also advised X-ray examination. ( 9 ) BESIDES the above mentioned witnesses the prosecution examined P. W. 6 Surya Nath Singh, Constable who took the dead-body of the deceased to the mortuary. P. W. 8 Shanker Dayal Tripathi, Head Constable, has stated that he had received the First Information Report and thereafter he prepared the chik report and had made necessary entry in the G. D. at 21. 30 hrs. In his cross-examination he has admitted that Sheo Das had given a written report at the police station and on the basis of whkh he had prepared chik F. I. R. which is Ex. Kha 1. The record shows that this F. I. R. was lodged at 22. 00 hrs. He has also admitted that appellant Nos. 4 and 6, Sheo Das and Khaderu, had arrived at the police station in injured condition and he had sent them for medical examination to the hospital. Kha 1. The record shows that this F. I. R. was lodged at 22. 00 hrs. He has also admitted that appellant Nos. 4 and 6, Sheo Das and Khaderu, had arrived at the police station in injured condition and he had sent them for medical examination to the hospital. P. W. 7 Tej Pratap Singh is the Investigating Officer of the case. He has stated in his crossexamination that a cross report regarding the same incident was lodged by appellant No. 5 Sheo Das and after investigating the said case he submitted charge-sheet against the accused nominated in the said report. He has further stated that he did not see the field to which the informant Mumtaj wanted to take water by cutting the Bandh as he did not consider it necessary. He further stated that he did not see any other Baha in the vicinity of the Baha over which the incident took place nor did he see any other pond besides the Gungwa Tal. In reply to question No. 21 he stated that he was not handed over any empty cartridge but at the same time he could not say by memory as to whether any empty cartridge was deposited at the police station. When a specific question was put to him as to whether Charan Chowkidar of village Kusuwa had given him an empty cartridge after picking it up the witness replied that without seeing the record he will not be able to give any answer. ( 10 ) THE accused did not examine any witness in defence. They have got their injury report proved by P. W. 9 Dr. Aijaj Ahmad which are Exs. Kha 3 and Kha 4 on record. Besides this they have filed some other documentary evidence. P. W. 1 Mumtaj has clearly admitted in reply to question 148 that appellant No. 8 Dular had filed a complaint against him, Iqbal, Manjoor and others and appellant No. 3 Ramjit was a witness in the said complaint case is pending. He has further admitted in reply to question No. 151 that Sheo Das, appellant No. 4, had lodged a report against him in respect of the same incident under Section 307 IPC regarding which a case was pending. Thus this witness is an inimical and interested witness. He has further admitted in reply to question No. 151 that Sheo Das, appellant No. 4, had lodged a report against him in respect of the same incident under Section 307 IPC regarding which a case was pending. Thus this witness is an inimical and interested witness. P. W. 2 Abdul Khair has admitted that his father Ajimullah had received injuries in an incident which took place in 1955 for which appellant No. 5 Ram Das was prosecuted and was acquitted. Thus he is an inimical witness. P. W. 5 Sheogatullah has also admitted in his cross-examination that his father Rahamtullah and Ajimullah were real brothers and thus he is first cousin of P. W. 2 Abdul Khair. He is also an inimical witness for the same reason. P. W. 4 lal Bahadur has admitted in his cross-examination that he is accused in the cross-case and thus he is an interested witness. ( 11 ) IT is, therefore, clear that three prosecution witness are inimical witnesses and the remaining fourth prosecution witness is an interested witnesses. The informant Mumtaj Ahmad is not only an inimical witness but is also an interested witness. The testimony of these witnesses has, therefore, to be examined with care and caution. P. W. 1 Mumtaj has stated that at about 5. 30 PM on the date of incident he went near the culvert and started cutting the Bandh which had been made by the persons of Kusuwa village for stopping the flow of water and that at that time appellants 4 to 6, namely Sheo Das, Ram Das and Khaderu, were present on the spot armed with gandasa. These persons then asked the informant not to cut the Bandh. Similar statement has been given by the other three witnesses that appellants Nos. 4 to 6 were present on the spot armed with gandasa. However, in the written First Information Report, which was lodged by the informant Mumtaj at 9. 30 PM on the same day, it was not stated that these three appellants were armed with gandasa. What is stated in the First Information Report is that appellants 4 to 6 were present on the spot and asked the informant not to cut the Bandh. To us the version given in the First Information Report indicates that these appellants were not carrying any weapon. What is stated in the First Information Report is that appellants 4 to 6 were present on the spot and asked the informant not to cut the Bandh. To us the version given in the First Information Report indicates that these appellants were not carrying any weapon. In case these accused were armed with gandasa this fact could not have been omitted to be mentioned in the First Information Report. In fact in the later part of the First Information Report it is mentioned that on the alarm raised by these three accused remaining eight accused came on the spot armed with lathi, gandasa and ballam. Moreover, there was no occasion for these three accused to be present there armed with Gandasa. They could not have anticipated that the informant Mumtaj would come for the purpose of cutting the Bandh and some altercation would ensue. Mumtaj has clearly admitted in his statement that except for one field of his no field of any other person of village Chitara used to be irrigated from the Baha in question. Therefore Mumtaj alone was interested in the flow of water from the Baha and he alone was likely to raise objection to the making of the Bandh. The other aspect of the matter is that if these three accused, namely, appellants 4 to 6, had been carrying Gandasas with them they would have immediately started assaulting the informant Mumtaj the moment he started cutting the Bandhs as he was all alone. These persons would not have called other co-villagers nor would have waited for their arrival before launching attack on the informant. It may also be noticed that informant Mumtaj has not received any injury by sharp-edged weapon and he has received only two injuries which are by blunt weapon. All these facts lead to an irresistible conclusion that these three appellants were not carrying any weapon with them and the prosecution witnesses have introduced the story regarding appellants 4 to 6 being armed with gandasa in their statement in court. This is a deliberate attempt to improve the prosecution case and to fasten liability upon these accused and to assign specific role of causing injury to the deceased. There is another circumstance which points out that these three accused were not armed with gandasa at the time of incident. This is a deliberate attempt to improve the prosecution case and to fasten liability upon these accused and to assign specific role of causing injury to the deceased. There is another circumstance which points out that these three accused were not armed with gandasa at the time of incident. According to the statement of the prosecution witnesses four accused namely appellants 4 to 6 and Dular, appellant No. 8, were armed with gandasa. On the side of informant Iqbal alone received four incised wounds. No other person has received any injury by a sharp-edged weapon which shows that there were less than three persons armed with gandasa. Both P. W. 1 Mumtaj and P. W. 2 Abdul Khair have stated in their cross-examination that so long as marpit continued all the four accused armed with gandasa kept on assaulting the deceased Iqbal. P. W. 2 Sheogatullah has stated that each accused armed with gandasa wielded the same two or three times. In case four persons armed with gandasa were assaulting the deceased repeatedly so long as marpit lasted he was bound to receive greater number of incised wounds. But the fact remains that the deceased sustained only four incised wounds. We are, therefore, of the opinion that this part of the prosecution case that four persons were armed with gandasa and were assaulting the deceased is not correct and cannot be relied upon. To us it appears that appellants 4 to 6, Sheo Das, Ram Das and Khaderu, were not carrying any weapon and the prosecution witnesses have falsely stated in their statement in court that they were also armed with gandasa and assaulted the deceased with their weapons. ( 12 ) IN the First Information Report it is mentioned that when the informant Mumtaj started cutting the Bandh appellant Nos. 4 to 6 objected to the same. It is then stated that the informant said that his crop was drying and they were doing highhandedness. It is then that appellants Nos. 4 to 6 gave abuses and called their village people saying TTCHITARA WALE HAM LOGON KA BAHA KAT KAR PANEE BAHA DENA CHAHTE HAIN (people from Chitara want to cut their Bandh and to waste water ). Even in the statement in court this sentence is repeated in exactly the same language by P. W. 1 Mumtaj. 4 to 6 gave abuses and called their village people saying TTCHITARA WALE HAM LOGON KA BAHA KAT KAR PANEE BAHA DENA CHAHTE HAIN (people from Chitara want to cut their Bandh and to waste water ). Even in the statement in court this sentence is repeated in exactly the same language by P. W. 1 Mumtaj. P. W. 4 Lal Bahadur has stated that Ram Das shouted DAURO KUSUWA WALO CHITARA WALE HAMARA BAHA KAT RAHE HAINT (Kusuwa people run as people from Chitara were cutting their Baha. ). This statement is very significant. It shows that the informant Mumtaj was not alone as stated by him in his statement. On the contrary it appears that large number of people from Chitara were present and were trying to cut the Bandh. In the First Information Report as well as in the statement in court the language has not been used what would normally be used when one person was present. The language clearly indicates that many people were present. The expression CHITARA WALE". clearly denotes that many people from village Chitara were present. That apart, if the informant was all alone the three accused already present on the spot (appellants Nos. 4 to 6) would not have called other persons from their village. It appears more probable and natural that they called their co-villagers as many people from village Chitara were present and were trying to cut the Bandh. Therefore, the prosecution case regarding the origin and the manner in which the marpit started appears to be highly doubtful. ( 13 ) THE number of injuries sustained by different persons on the side of prosecution also does not fit in with the manner of marpit disclosed by the prosecution witnesses. P. W. 1 Mumtaj has clearly stated that the culvert is at a distance of II 1/2 furlongs from the abadi of village Chitara. According to his version he was all alone when the incident started and Channoo and Mani Ram gave him lathi blows. In reply to question No. 115 he has stated that he was surrounded and then assaulted. It was on his alarm that Iqbal, Manjoor and others came on the spot. It is obvious that the other persons would have taken some time to reach the place of occurrence. In reply to question No. 115 he has stated that he was surrounded and then assaulted. It was on his alarm that Iqbal, Manjoor and others came on the spot. It is obvious that the other persons would have taken some time to reach the place of occurrence. P. W. 4 Lal Bahadur has stated in reply to question No. 18 that marpit had started even before Manjoor and Iqbal had reached the spot. Therefore, at the time when the marpit started the informant was all alone from the side of prosecution while as 11 accused armed with various weapons had already arrived there and had launched the attack. Curiously enough the informant Mumtaj had sustained only one lacerated wound and one contusion. If the incident had happened in the manner suggested by the prosecution Mumtaj would have sustained greater number of injuries and would have also sustained some incised wounds by gandasa. The fact that he has sustained only two injuries by blunt weapon shows that the incident did not start in the manner suggested by him or by other prosecution witnesses. ( 14 ) IT may be mentioned at this state that the defence case is that no-one of village Chitara ever irrigated his field from the Baha coming from the Gaungawa Tal over which the Bandh had been constructed. Sheo Das accused has stated under section 313 Cr. P. C. that Iqbal and others, in all 12 persons came to Baha and started cutting the Bandh so that the water may be wasted and this was objected to by him. P. W. 1 Mumtaj has replied in reply to question No. 14 that only one field of his was irrigated from the Baha in question and the remaining fields of other persons of village Chitara are irrigated by the eastern Baha. When he was asked to give the number of the said plot he stated that he did not know the same. In reply to question No. 34 he clearly stated that he had shown the field to which he wanted to take the water to the Investigating Officer. However, P. W. 7 Tej Pratap Singh, who investigated the case has stated in reply to question No. 7 that he did not see the field to which the informant wanted to take water. However, P. W. 7 Tej Pratap Singh, who investigated the case has stated in reply to question No. 7 that he did not see the field to which the informant wanted to take water. In our opinion if the version given by the informant was correct, namely, that his field was also irrigated from the Baha in question, the Investigating Officer would have certainly seen the same and would have shown it in the site plan, prepared by him. It appears that the Investigating Officer was not shown the field by the informant for the reason that no field of his was ever irrigated from the Baha going from Gungwa Tal which is situate in village Kusuwa. This again explains the reason why the field of the informant was not shown in the site plan prepared by the Investigating Officer. We are, therefore, not inclined to believe the prosecution case that some field of the informant used to be irrigated from the Baha in question and that the marpit took place as the informant wanted to cut the Bandh to allow the now of wafer of his field. ( 15 ) IT is established from the evidence on record that accused Sheo Das also lodged a First Information Report at 10 PM on the same day i. e. on 25. 9. 1975, giving his version of the incident. The First Information Report lodged by the accused is as prompt as the one lodged from the side of the prosecution in as much as it was lodged within half an hour of the time when the prosecutions First Information Report was lodged. It is, therefore, obvious that Sheo Das had no time to obtain legal advice of any kind. ( 16 ) P. W. 8 Shanker Dayal Tripathi, Head Constable, has admitted that Sheo Das and Khaderu accused had arrived at the police station in an injured condition and they were sent for medical examination. P. W. 9 Dr. Aijaj Ahmad has proved the injuries received by these two accused. The fact that they also received injuries in the incident is not disputed by the prosecution. According to the doctor injury No. 2 of Sheo Das, which is a lacerated wound on the right fore-arm, had been caused by a fire arm. The doctor was cross-examined at considerable length regarding the nature of this injury. The fact that they also received injuries in the incident is not disputed by the prosecution. According to the doctor injury No. 2 of Sheo Das, which is a lacerated wound on the right fore-arm, had been caused by a fire arm. The doctor was cross-examined at considerable length regarding the nature of this injury. He has opined that injury No. 2 was possible by fire arm, but the said fact was not confirmed as X-ray examination was not conducted. It is true at the time of the medical examination the doctor had advised for X-ray examination of the right fore arm of Sheo Das and the said X-ray examination was not performed. But the mere fact that X-ray examination was not conducted cannot lead to an inference that the said injury had not been caused by a fire arm. In reply to question No. 16 the doctor stated that he had given his opinion that the injury had been caused by fire arm after looking at the injury. In view of the statement of the doctor we are inclined to hold that injury No. 2 of Sheo Das was caused by a fire arm. A question regarding use of fire arm was also put to the Investigating Officer P. W. 7 Tej Pratap Singh when he was asked that Charan Chaukidar had picked up an empty cartridge in his presence and had handed over to him. He replied that without seeing papers he cannot give any reply. The answer given by the Investigating Officer shows that he had no courage to categorically deny the suggestion made by the defence. On the contrary he has tried to give a non-committal statement. It appears to us that he was trying to conceal some fact which would have gone in favour of the accused. The prosecution has explained the injuries on the side of the accused by saying that the witnesses had used danda in self-defence but no witness has stated that any fire arm was used from their side. Thus there is no explanation for the fire arm injury found on the body of Sheo Das accused. ( 17 ) IN view of the discussions made above we are of opinion that the prosecution case is not free from doubt. The manner in which the incident started is also doubtful. Thus there is no explanation for the fire arm injury found on the body of Sheo Das accused. ( 17 ) IN view of the discussions made above we are of opinion that the prosecution case is not free from doubt. The manner in which the incident started is also doubtful. It appears that some innocent persons have been falsely roped in, on account of enmity. On the state of evidence, as it stands, it is not possible to find out who has been falsely implicated. All the accused are, therefore, entitled to benefit of doubt. The acquittal of Sadafal accused also deserves to be confirmed. ( 18 ) THE appeal is accordingly allowed. The conviction of the appellant as well as the sentences imposed upon them are set aside. They are on bail. They need not surrender. Their bail bonds and sureties are discharged. The Government Appeal field by the State against the acquittal of Sadafal accused is dismissed. His sureties are also discharged. Appeal allowed. .