S. K. VARMA, J, J. ( 1 ) BABU Ram son of Ram Dutt and his son Sardar and Satish son of Sardar filed three criminal appeals Nos. 737 of 1978, 1230 of 1978 and 735 of 1978 respectively, against their convictions in the Sessions Trials No. A448 of 1978 and A222 of 1975 recorded by Sessions Judge, Bulandshahr, convicting them under sections 302/34, 307/34 and 323/34, I. P. C. , with sentences of life imprisonment, seven years (for Sardar and Satish), five years rigorous imprisonment (for Babu Ram) and six months rigorous imprisonment respectively. The appeals of Babu Ram and Sardar namely Criminal Appeals. Nos. 737 of 1978 and 1230 of 1978 have abated due to death of these two appellants. The appeal of Satish namely Criminal Appeal No. 735 of 1978 has been heard by us and is being disposed of on merits. ( 2 ) THE First Information Report of the incident was lodged on 2. 5. 1976 at 11. 30 A. M. by Om Dutt Sharma (P. W. 1) complainant and eye witness disclosing the prosecution story that there was a passage for the ingress to and egress of the complainant, running towards the east infront of the house of accused Sardar, Sardar tried to obstruct the passage in different ways resulting in litigation between the complainants and Sardar before the Nyaya Panchayat. This ended in compromise on 14. 7. 1974. Three yards wide passage was left towards the east of the house of accused Sardar. However, there was another obstruction by Sardar in this passage and on complaint the Nyaya Panchayat levied fine of forty rupees on 25. 4. 1975 against Sardar. On 2. 5. 1975 at about 8, A. M. Sardar alongwith his father Babu Ram and son Satish started stacking and boulders on the passage. The complainant and Kanchan Singh and other beneficiaries of that passage protested whereupon the three accused persons started quarrelling. When the complainant and Kanchan Singh started removing the boulders, several persons including Kishan Swaroop (P. W. 2), Pitambar, Lal Bohari, Babu Ram son of Ganeshi, Iqram (P. W. 3) and others tried to intervene. Thereupon Sardar and Satish brought pistols and Babu Ram a lalhi from their house. Satish and Sardar opened fire towards the complainant and Kanchan Singh. When the complainant and Kanchan Singh started removing the boulders, several persons including Kishan Swaroop (P. W. 2), Pitambar, Lal Bohari, Babu Ram son of Ganeshi, Iqram (P. W. 3) and others tried to intervene. Thereupon Sardar and Satish brought pistols and Babu Ram a lalhi from their house. Satish and Sardar opened fire towards the complainant and Kanchan Singh. The complainant escaped but Kanchan Singh received injuries and died on the spot, Kishan Swaroop and Pitambar also received gun shot wounds. By standers including Shakuntla wife of Mangal Sen, Devwati wife of Mahabir Prasad, Sheela wife of Har Swaroop, Mayavati daughter of Sannu Ram and Somwati wife of Das Dev also received fire-arm-injuries. The complainant and his uncle Bohari received lalhi injuries. Kanchan Singh had multiple gun shot wounds of entry in an area of 12 x 11 involving left cheek, front and left side of neck, left side front of chest, upper part, front of left shoulder with depth varying from skin to muscle to lung deep measuring 1/2 x 1/4 with circular shape but without any blackening or scordhing. Deo Kali had nine gun shot wounds, Smt. Mayavati had five gun shot wounds, Pitambar had two guns shot wounds, Kishan Swaroop had two gun shot wounds, Sheela had two gun shot wounds. Bohari had lacerated wound, Shakuntala had one gun shot wound and Somwati had four gun shot wounds and one reddish blue contusion. The complainant had/one lacerated wound, one abrasion and one bruise. All these injuries according to the different Doctors who examined their injuries, could have been caused at about 8 A. M. on 2. 5. 1975. ( 3 ) THAT investigating officer found boulders or mud over the controversial passage and three empty cartridges. He arrested Sardar and recovered a country-made pistol and two live cartridges from his possession. ( 4 ) BALLISTIC Expert found that Material Exhibits 8 and 10 empty cartridges found from the spot were fired from the pistol recovered from the possession of Sardar. ( 5 ) THE prosecution examined Om Dutt Sharma complainant (P. W. 1), Kishan Swaroop (P. W. 2), Iqram (P. W. 3) and Sannu Ram as eye witnesses. Musadi Lal Head Constable (P. W. 4), Dr. A. K. Agrawal (P. W. 5), Constable Shyam Singh (P. W. 6), Dr. D. B. Singh (P. W. 8), Ballistic Expert Radhey Shyam Misra (P. W. 9), Dr. Musadi Lal Head Constable (P. W. 4), Dr. A. K. Agrawal (P. W. 5), Constable Shyam Singh (P. W. 6), Dr. D. B. Singh (P. W. 8), Ballistic Expert Radhey Shyam Misra (P. W. 9), Dr. Jasvir Singh Gogia (P. W. 10) Behari (P. W. 11) Kamal Kishore (P. W. 12), S. C. Suresh Chandra (P. W. 13) and Constable Sakhdeo Prasad (P. W. 14) were examined as formal witnesses. The prosecution also relied on Ex. Ka-1 to Ex. Ka 35 on record. ( 6 ) THE accused persons pleaded not guilty. Accused Sardar and Babu Ram claimed that they had a patta (Ext. Ka 5) dated 10. 10. 1974 of the land measuring 9 yards x 11 yards towards the east of their house. They were levelling this land covered by patta when they were assaulted with lalhis, spears, country-made pistol and pharsa, both of them and Babu Rams wife Champa received injuries during this occurrence. Appellant Satish pleaded that he was not present in the village at the time of the occurrence and he was not involved so that he could not do pairvi in the case. Ex. Kha-1 and Ext. Kha-2 are injury reports relating to Sardar and Babu Ram respectively, who had been medically examined in the jail. Smt. Champa wife of Babu Ram also had injuries and according to Doctor who examined the injured, the injuries could have been caused at about 8 A. M. on 2. 5. 1978. Ext. Ka-21 is the report sent to the Police Station by Smt. Champa in which she has narrated the defence version. She claimed that her husband Babu Ram and son Sardar had gone to Police Station to lodge a First Information Report but the police who was on intimate terms with Om Dutt, arrested the two persons. There was no male member in her house, hence she could not lodge a report and get herself medically examined early. She also complained that Om Dutt had also prevented her from coming out of the village. The defence also examined Ram Sanehi Lal compounder (D. W. 1), Dr. D. V. Singh (D. W. 2), Dr. Jitendra Sharma (D. W. 3), (Who found fracture on the left ring finger of the left hand of Champa), Bharat Singh (D. W. 4) Pradhan of village Larhana and Balwant Singh (D. W. 5) member of the Nyaya Panchayat. The defence also examined Ram Sanehi Lal compounder (D. W. 1), Dr. D. V. Singh (D. W. 2), Dr. Jitendra Sharma (D. W. 3), (Who found fracture on the left ring finger of the left hand of Champa), Bharat Singh (D. W. 4) Pradhan of village Larhana and Balwant Singh (D. W. 5) member of the Nyaya Panchayat. ( 7 ) THE learned Sessions Judge, Bulandshahr convicted the appellant alongwith two other accused and sentenced them under the different sections as aforesaid. Hence this appeal. ( 8 ) WE have carefully gone through the record and have heard the learned counsel for the appellant Satish and the A. G. A. The main argument on behalf of the appellant is that the prosecution has failed to explain the injuries of Sardar, Babu Ram and Smt Champa. Hence the prosecution story should be rejected as false. The second argument on behalf of the appellant Satish is that since Sardar, Babu Ram and Smt. Champa received injures including grievous hurt, they had a right of private defence. If this right has been exercised and the right has been exceeded, only individual liability can be fastened against the accused who exceeded the right of private defence, because persons who are exercising their right of private defence are doing legitimate act and the assembly is not an unlawful assembly. If anyone of them exceeds that right and causes death then that is his individual act and he alone would be liable to the consequences thereof. If there is no evidence whatsoever to fix the identity of the individual who delivered the fatal blow the result would be that none of those persons could be convicted for an offence of causing death. ( 9 ) REGARDING the first Point the injuries of Babu Ram, Sardar and Smt. Champa may be considered. Sardar accused had a lacerated wound scalp deep on right side head just to the right of mid line above right ear, another scabbed abrasion on left side head mastoid region behind left ear, and a scabbed abrasion on left side neck, multiple scabbed abrasions on back of right forearm and lacerated wound on lateral aspect of dorsum of terminal phalanx inside the nail of right little finger. Babu Ram had scabbed abrasion 13 cm. Babu Ram had scabbed abrasion 13 cm. x 1 cm on left side forehead and another scabbed abrasion on left side face just on the outer side and below the outer angle of left eye and a contusion on the left side face just below left eye. Smt. Champa had a contusion on the back of left ring finger. XRay showed fracture under this injury which has been proved by D. W. 3 Dr. Jitendra Sharma. Smt. Champa also had a contusion on the back of left middle finger, diffused traumatic swelling allover dorsum of left hand and a septic incised wound 3-1/2 cm x 2-1/2 cm x muscle deep on the back and inner aspect of right forearm middle 113rd, margins clean cut. Dr. D. V. Singh (D. W. 2) has deposed that injuries Nos. 1 and 2 of Smt. Champa could be caused by a fall but there is not even a suggestion that injury No. 4 could be caused by a fall or could be simulated. It is noteworthy that Smt. Champa is about 70 years old as per estimate of Dr. D. V. Singh (D. W. 2 ). The duration of injuries according to Dr. D. V. Singh is about three days. It is, therefore, difficult to believe that Smt. Champa who is a lady of 70 years, would simulate these injuries in support of defence version. The injuries of Sardar and Babu Ram were examined by Dr. Tripathi who was the Jail Doctor on 4. 5. 1975. These injuries have been proved by Ram Sanehi Lal Compounder (D. W. 1 ). The prosecution side did not examine any witness to prove that these injuries could have been simulated. Of course Sardar could have received some of these injuries while being arrested but there is no explanation of the injuries of Babu Ram and Smt. Champa. ( 10 ) THE learned session Judge. Bulandshahar ignored the injuries of Sardar, Babu Ram and Smt. Champa because he was of opinion that the injuries of Smt. Champa were fabricated and injuries of Sardar and Babu Ram were sustained during arrest We are unable to accept this proposition because of the age of the old lady and the nature of injuries already discussed above. Bulandshahar ignored the injuries of Sardar, Babu Ram and Smt. Champa because he was of opinion that the injuries of Smt. Champa were fabricated and injuries of Sardar and Babu Ram were sustained during arrest We are unable to accept this proposition because of the age of the old lady and the nature of injuries already discussed above. ( 11 ) THE prosecution side has examined four eye witnesses namely Om Dutt (P. W. 1), Kishan Swaroop (P. W. 2), Iqram (P. W. 3) and Sannu Ram (P. W. 7 ). Out of these eye witnesses Iqram (P. W. 3) does not support the prosecution version because his statement is hearsay. The other three eye witnesses have totally failed to explain as to how Smt. Champa, Sardar and Babu Ram received injuries. Of course Om Dutt Sharma has tried to explain that Sardar received injuries during his arrest. ( 12 ) THE defence has examined (D. W. 4) Bharat Singh Pradhan and this witness has explained the topography of the spot alongwith a map which is Ext. Kha 6. This witness has also proved the patta dated 10. 10. 1974 in favour of Sardar accused. The patta land is just in front of the house of Sardar towards the east. Om Dutt Sharma (P. W. 1) has admitted in his cross-examination that the land which he claimed as a passage, was claimed by Sardar accused to have been allotted to him through a patta. Om Dutt Sharma has also admitted that Sardar had filed that patta in Nyaya Panchayat. This witness has also admitted that Sardar had been preventing this witness from using this patta land for ingress and egress since 25. 8. 1974. He has clearly admitted that the dispute was that Sardar claimed that the land in dispute had been given to him through a patta whereas the complainant party claimed that it was their passage and the Nyaya Panchayat also recognised that passage. This witness has also admitted that the mud boulders collected by Sardar were demolished by this witness as well as Kanchan Singh and Behari. This witness has also admitted that the mud boulders collected by Sardar were demolished by this witness as well as Kanchan Singh and Behari. It is, therefore, highly probable that then Babu Ram and Sardar who claimed the disputed land as their patta land, and who had collected mud boulders on that land to raise level of the land, saw that their mud boulders were being removed, they must have tried to prevent the complainant and his helpers from doing so. It is, therefore, highly probable that the complainant party assaulted Sardar, Babu Ram and Smt. Champa, and when Sardar and Babu Ram saw that Smt. Champa wife of Babu Ram had received injuries from blunt weapons as well as sharp weapons, they exercised their right of private defence so as to protect Smt. Champa as well as themselves from receiving further injuries. If, therefore, it is believed that the fire arms were used from the side of the accused persons, resulting in death of one person and injuries to several others, the reasonable inference which can be drawn is that these injuries were caused in exercising right of private defence of persons. It is not known which shot hit Kanchan Singh and caused his death. There are contradictions in the statements of eye witnesses as to whether it was the shot fired by Sardar which caused the death of Kanhhan Singh or the shot fired by Satish appellant which caused this fatal injury. ( 13 ) THESE being the probabilities, the observations of the Supreme Court can be quoted with advantage: In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version: (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable. (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes such greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. (See AIR 1976 Supreme Court 2253. Lakshmi Singh and others v. State of Bihar ). ( 14 ) WE are of the view that in this case the prosecution has suppressed the genesis and the origin of the occurrence. The witnesses who are denying the injuries of the accused persons are lying on a most material point and the defence version explains the injuries on the person of the accused and the defence version is probable. ( 15 ) AS already remarked earlier there is no reliable evidence to fix the identity of the accused who caused the death of Kanchan Singh. Persons who are exercising right of private defence are doing legitimate act and their assembly is not unlawful. They did not have any common intention of causing death. If anyone of the accused caused death in exercise of the right of private defence, it is his individual act and he alone would be liable of the consequences thereof. Section 34 of the I. P. C. will not apply because there was no pre-arranged plan (See 1354 Alid. 1971 D. B. Ram Autar v. State ). ( 16 ) WE, therefore, find that the appellant Satish is entitled to the benefit of doubt. The appeal is, therefore, allowed. The order of conviction of Satish appellant is set aside. The bond and the sureties filed in pursuance of the trial courts order stand discharged. The appellant need not surrender. Appeal allowed. .