JUDGMENT Mr. Kundan Singh, J. - This appeal has been preferred by Chhotey Lal, Bankey Lal and Ram Karan against the Judgment and order dated 7.11.1979 passed by Sri S.N. Misra, the then II Additional Sessions Judge, Jaunpur, in Session Trial No. 57 of 1978 whereby he has convicted the appellant Chhotey Lal under Section 304 Part II, I.P.C. and sentenced him to 5 years' rigorous imprisonment. He has further convicted him under Section 323/34 I.P.C. and sentenced to one year's rigorous imprisonment. Appellant Bankey Lal was convicted under Section 304 Part II read-with Section 34 I.P.C. and sentenced to 3 years' rigorous imprisonment. He was also convicted under Section 23/34 I.P.C. and sentenced to six months' rigorous imprisonment. Similarly, appellant Ram Karan was convicted under Section 304 Part II read with Section 34 I.P.C. and sentenced to two years' rigorous imprisonment and was further convicted under Section 323/34 I.P.C. and awarded six months' rigorous imprisonment. 2. Briefly stated, the prosecution case was that there was a grove in village Sultanpur with in Police Station Baksa, district Jaunpur, in which the informant party also had a share. At about 4.00 p.m. on 9.5.1976 Ram Karan and his three sons, namely Chhotey Lal, Bankey Lal and Sachchey, and Ghanshyam and Sarju Yadav were plucking the mangoes from the grove. Meanwhile, the complainant Shiv Nath Dubey arrived there and he protested plucking of mango fruits. Thereupon Ram Karan challenged and exhorted his companions to assault him, who started beating him with lathis. In between Lal Bahadur, Shobh Nath and Shri Niwas also reached there on hearing the hue and cry and when they tried to intervene and save Shiv Nath Dubey, the accused parsons assaulted them also with lathis. Ram Sheikhar Dubey, Lalta Prasad Tewari, Lal Chand Dubey and many others fellow villagers had also come on the spot on hearing the cries and shrieks and on their intervention the matter was subsided. 3. The First Information Report of the incident was lodged at Police Station Baksa on 9.5.76 at 7.15. p.m. by Shiv Nath Dubey on the basis of which a case was registered against the accused persons. 4. The injured persons were sent to District Hospital for Medical Examination and they were medically examined there. However, Shobh Nath, who was in a precarious condition was advised to be taken to Varanasi. p.m. by Shiv Nath Dubey on the basis of which a case was registered against the accused persons. 4. The injured persons were sent to District Hospital for Medical Examination and they were medically examined there. However, Shobh Nath, who was in a precarious condition was advised to be taken to Varanasi. Next day while he was being taken to Varanasi died in the way and his dead body was brought back to Jaunpur and on his dead body the autoposy was conduced by Dr. N.N. Agrawal (P.W.4). 5. The investigation of the case was started by Pashupati Nath Pandey (P.W.8), who was then posted as Station Officer, Police Station Baksa. He recorded the statements of the witnesses and prepared the site plan. Subsequently, the investigation of the case was transferred to Thakur Lal Srivastava (P.W.7) who after completion of the investigation submitted charge-sheet against the accused persons in Court. 6. The accused denied the charge, pleaded not guilty and claimed to be tried. 7. The prosecution examined Shiv Nath P.W. 1, Lal Bahadur P.W.3, Lalta Prasad P.W.3 and Lal Chandra Dubey P.W.5 as eye-witnesses of the incident. Besides the above eye-witnesses, the prosecution also examined other witnesses, who are of formal nature. Dr. N.N. Agrawal (P.W.4) was examined to prove the injury reports of the injured persons. Swaminath Pandey (P.W.6) was the Head Moharrir posted at Police Station Baksa at the relevant time and he was examined to prove the chick report etc. Pashupati Nath Pandey (P.W.S) and Thakur Lal Srivastava (P.W.8) were the Investgating Officer. 8. Ram Karan appellant in his statement recorded under Section 313 Criminal Procedure Code has stated that when his son Achhey Lal was plucking mangoes from his own grove, Shiv Nath, Lal Bahadur, Shobh Nath, Sheikhar, Lalta and Laxmi Kant started assaulting him. On hearing hue and cry of his son, they also reached there to rescue him whereupon all these six persons assaulted them and in that Marpeet they also recieved injuries. 9. Chhotey Lal accused-appellant in his statement under Section 313 Criminal Procedure Code has deposed that he has been implicated in the present case due to sheer enmity. Similar is the statement of accused-appellant Bankey Lal that he has also been implicated due to animosity. 10. The defence also examined three witnesses in support of their version. 9. Chhotey Lal accused-appellant in his statement under Section 313 Criminal Procedure Code has deposed that he has been implicated in the present case due to sheer enmity. Similar is the statement of accused-appellant Bankey Lal that he has also been implicated due to animosity. 10. The defence also examined three witnesses in support of their version. Ambika Prasad Upadhyaya D.W.1 was the Clerk Constable posted at Police Station Baksa, district Jaunpur at the relevant time and he testified that one application dated 20.5.76 to Superintendent of Police, Jaunpur, was received at Police station Baksa and on the basis of that application a case was registered as case Crime No. 65-A. He brought the chick register and on that basis he proved the G.D. Entry No. 18 prepared by Shiv Murat Yadav, Head Constable, whose hand writing the witness recognised and proved the G.D. entry and the F.I.R. marked as Ext. Kha-1 and Kha-2, respective. 11. Dr. R.P. Rastogi (D.W.2) who was posted as Medical Officer in District Hospital Jaunpur, on 11..5.76, and had examined accused-appellant Ram Karan at 9.00 a.m. on 11.5.76 filed copy of the injury report Ext. Kha-3 and proved the injuries noted in his report. 12. Dr. B. Sahai (D.W.3) was a private Practitioner. He had examined the injuries of Satya Prakash alias Achhey Lal son of Ram Karan appellant at 3.00 p.m. on 10.5.76 and proved his injury report Ext. Kha-4. 13. The learned Additional Sessions Judge after taking into account the entire evidence on record, held the accused-appellants guilty of the offence charge with and convicted and sentenced them as aforesaid, However, he held accused Ghanshyam, Achhey Lal and Sarju Yadav and not guilty and accordingly acquitted all of them of the charges levelled against them. 14. The learned Counsel for the appellants at the out set argued that it is a case in which defence side also sustained injuries and the injuries received by the accused had not been explained by the prosecution and as such the prosecution version is not reliable at all. 14. The learned Counsel for the appellants at the out set argued that it is a case in which defence side also sustained injuries and the injuries received by the accused had not been explained by the prosecution and as such the prosecution version is not reliable at all. The next contention of the learned Counsel for the accused-appellant was that the appellants were also co-tenure holders of the grove and the prosecution has failed to prove that complainant party alone was exclusive owner in possession of the grove, hence it could not be inferred that the accused party had plucked the mango fruits unauthoriscdly from the grove of Shiv Nath complainant and had thus committed the offence. It was also argued by him that it is not clear form the evidence available on record as to which party was the aggressor and had first started the Marpeet. In the last, it was argued by him that the deceased Shobh Nath sustained a single injury on his head and it is not clear from the evidence on record as to which of the accused had caused that injury and no specific role has been assinged to the accused persons in the First Information Report, and that the subsequent assignment of role is nothing but an improvement in the prosecution version which is not worthy of credence at all. 15. I have considered all those arguments of the learned Counsel for the appellant in the light of the evidence available on record. The learned Sessions Judge himself made an observation in his judgment that "all these facts circumstances go the to show that the injuries were caused from both the sides". In case the injuries were received by the defence side also at the time and place of the occurrence, then the prosecution was obliged to do explain those injuries satisfactorily. But in the present case no explanation is both coming from the side of the prosecution as to how and in what manner the accused side had received the injuries. Rather, the prosecution witnesses have disowned to have caused any injury to any of the persons on the defence side. 16. P.W.1 Shiv Nath showed his ignorance about his filing written statement before the Consolidation Officer in the proceedings relating to this very grove. He was party with Shri Niwas in those proceedings against Ram Karan, the present appellant. Rather, the prosecution witnesses have disowned to have caused any injury to any of the persons on the defence side. 16. P.W.1 Shiv Nath showed his ignorance about his filing written statement before the Consolidation Officer in the proceedings relating to this very grove. He was party with Shri Niwas in those proceedings against Ram Karan, the present appellant. He also showed his ignorance that in Form C.H. 5 which was received by him the share of Ram Ka. Ln accused-appellant was shown as ?rd. He also expressed ignorance whether Ram Decn was the real brother of his ancestor Shiv Deen. In the revenue records the share of Ram Deen, ancestor of Ram Karan, was shown as ?rd in the grove and he had to admit that he had filed an objection on 14.8.74 before the Consolidation Officer alleging that Ram Karan had only ?th share and not ?rd as claimed in the grove in disputed. In the objection he has not mentioned that there has been any private partition between the parties. He had also not mentioned in those objections that he had any mango tree over his share. He had also denied to have any knowledge about the written statement of Ram Karan being filed in that case and also that in his written statement Ram Karan had claimed 17 mango trees over his portion of the land and that he was in possession thereof. From the facts mentioned above, it is amply clear that this witness has tried to conceal the truth that Ram Karan had ?rd share in the grove which was the apple of discourse and had culminated in the present incident. To the contrary the defence filed certain papers, namely Ext. Kha-5, Kha-6 and Kha-7 to show that there was litigation between the parties about the grove in question in which the appellant Ram Karan had claimed his ?rd share and that over his portion of the land he had planted 17 or 18 mango trees. The above documentary evidence and the conduct of Shiv Nath that he tried to give evasive reply to every question put to him during his cross-examination lead us nowhere but to accept the defence version that they had also share in the grove and the land beneath it and that no partition has taken place between the parties. The above documentary evidence and the conduct of Shiv Nath that he tried to give evasive reply to every question put to him during his cross-examination lead us nowhere but to accept the defence version that they had also share in the grove and the land beneath it and that no partition has taken place between the parties. Therefore, the finding of the learned Additional Sessions Judge that the trees from which the accused side had plucked the mango fruits belonged to Shiv Nath militates against the evidence on record and is not sustainable. 17. P.W.1 Shiv Nath has stated that he had not seen any injury on the side of the accused persons nor any injury was caused to any of the accused persons. It was also admitted by him that on the application sent by Achhey Lal, a case was registered against the complainant party and a complaint case was also filed in that respect and that case was committed to the Court of Sessions in which he, Lal Bahadur, Laxmi Kant, Lalta Prashad and Ram Sheikhar were facing the trial. 18. P.W.2 Lal Bahadur stated in his cross-examination that he heard the cries of Marpeet at his house and thereafter he went to the place of occurrence. He admitted that by the time he reached the place of occurrence, the Marpeet was over. According to him, when he reached, the complainant Shiv Nath was complaining as to why the mango fruits were plucked. He also admitted that his house is at a distance of 2-3 furlongs from the grove where the incident took place. In my opinion, he had the least chance to see the actual Marpeet and had also admitted that he reached the place of occurrence when the marpeet was over. 19. P.W.3 Lalta Prashad during his statement in Court has admitted enmity against the accused party and also confessed that Laxmi Kant had contested election against him for the office of village Pradhan in which Laxmi Kant had voted him out. The accused Ghanshyam was the real brother of Laxmi Kant and in the cross-case he is also an accused and some litigation also took place between Laxmi Kant, brother of Ghanshyam, and the witness Lalta Prasad. The accused Ghanshyam was the real brother of Laxmi Kant and in the cross-case he is also an accused and some litigation also took place between Laxmi Kant, brother of Ghanshyam, and the witness Lalta Prasad. He also admitted about initiation of proceedings under Section 107 Criminal Procedure Code between Laxmi Kant, Sarju and Ghanshyam on one side and he and others on the other side. Besides that, certain other litigations also took place between the parties. 20. Similarly, P.W.5 Lal Chandra Dwivedi admitted that he had left his village in the year 1966 and had visited the village occasionally. He admitted that there are three co-tenure holders in the grove and also that he gave a statement before the Investigating Officer that Ram Karan exhorted his companions to assault Chhotey Lal but he could not say why that statement was not recorded by him. I have gone through his statement and coupled with the fact that there are contradictions in his statement before the Court and that he gave before the Investigating Officer, I feel that the witness was not present at the scene of occurrence and while in the witness box he tried to improve his statement that he gave before the Investigating Officer. 21. The witnesses examined by the prosecution are highly partisan and interested persons. Shiv Nath and Lal Bahadur, P.Ws. 1 and 2, respectively, are co-accused in the cross-case and the presence of Lalta Prasad and Lal Chandra Dwivedi on the spot is very doubtful and on the basis of their evidence it would not be safe to sustain the conviction of the appellant as their evidence is quite short and sufficient to prove that it was the accused side which had first picked up the quarrel and attacked the prosecution side. 22. The defence has examined Dr. R.P. Rastogi and Dr. V. Sahai as D.Ws. 2 and 3, respectively, in order to prove the injuries of Ram Karan and Achhey Lal alias Satya Prakash. In view of the observation made by the learned Additional Sessions Judge that during the course of incident both the sides received injuries, I see no reason to discard the evidence of the aforesaid two witnesses examined by the defence and the injuries received by the accused persons. In view of the observation made by the learned Additional Sessions Judge that during the course of incident both the sides received injuries, I see no reason to discard the evidence of the aforesaid two witnesses examined by the defence and the injuries received by the accused persons. The prosecution has not come with clean hands on this score and has not explained the injuries on the defence side at all. On the basis of the evidence on record. It cannot be said as to which party was the aggressor. 23. Lastly, so far as the single injury caused to Shobh Nath is concerned, the prosecution has not assinged that injury to any particular accused in the First Information Report. However, later on this injury was attributed to accused Chhotey Lal but was nothing except an improvement in the prosecution case. If, of course, Chhotey Lal had caused that injury, his name ought to have been mentioned at the out set in the First Information Report. 24. In the present case accused Ghanshyam, Sachchey Lal and Sarju Yadav have been acquitted by the learned trial Judge though the role assigned to them and that of Bankey Lal and Ram Karan is the same. Therefore, is cannot be said that it were the appellants Ram Karan and Bankey Lal alone who were responsible for causing injuries to Shiv Nath and Lal Bahadur. The injuries sustained by Shiv Math and Lal Bahadur could have been caused by Ghanshyam, Sachchey Lal and Sarju accused also, though they have been acquitted on other ground that they had no common interest to participate in the incident with the accused-appellants. 25. After taking stock of the entire evidence on record, I am in disagreement with the learned Sessions Judge that the prosecution has succeeded in bring home guilt against the appellants. The evidence of the prosecution witnesses in respect of the manner of assault and participation of the lants in the incident is unworthy of acceptance. 26. Consequently, the appeal is allowed. The judgment and order dated 7.11.79 passed by the learned IInd Additional Sessions Judge, Jaunpur, are set aside. The convication and sentences of the accused-appellants as passed by the learned Additional Sessions Judge are set aside and they are acquitted of the charges levelled against them. They are on bail and they need not surrender. Their bail bonds are cancelled and sureties discharged.