JUDGMENT 1. - Both these appeals arise out of the judgment of the learned Sessions Judge, Tonk, dated 28.9.1989 whereby he convicted accused appellant, Ramesh alias Tarjan for an offence under Section 302, IPC and convicted accused appellants, Satya Narain, Kishanlal, & Kanhaiyalal, for offence under Section 302 read with Section 34, IPC, and sentenced each of them to undergo imprisonment for life and to pay a fine of Rs. 100/-. 2. The appellants filed separate appeals in this Court which were registered as stated above. But, original files of these appeals have been misplaced and they could not be listed for hearing despite Court's order for listing them in January, 1991. This fact was brought to the notice of the Court by the learned Counsel for the appellants, who also moved an application for reconstituting the files. This Court vide detailed order dated 4th August, 1992, directed the files to be reconstituted and meanwhile, to trace out the original files but it appears that the files could not be traced out so far and, therefore, the case has been heard on the reconstituted files. 3. Brief facts leading to these appeals are that an F.I.R. (Ex. P.1) was lodged by Om Prakash (P.W. 1) at Police Station Deoli on 27.7.1988 at 9.45 p.m. in respect of an incident alleged to have taken place at about an hour earlier in Deoli. It was mentioned in the written report by the informant that he alongwith Shivraj and Mahadevlal came to Deoli from their village Morala; that, after completing their work in the market, they went to see movie at Kisan Talkies at 8.30 p.m. and at that time, they saw Ramesh Teli, Satyanarain Tali, Kishan Teli & Kanhaiyalal Teli standing outside the cinema hall, who silently went towards another cinema ball, and, therefore, he alongwith his colleagues started for their village and these four persons followed them and went ahead of them. When the complainant reached near the Sabzi Mandi crossing at about 9.45 p.m., all the four accused appellants caught hold of Mahadevlal; three of them exhorted and Ramesh took out a knife and inflicted blows on his neck & chest, as a result of which, Mahadevlal fell down bleeding profusely. Both of them, namely, Omprakash and Shivraj raised an alarm on which, a number of persons gathered there. Mahadevlal died on the spot and the accused ran away. Both of them, namely, Omprakash and Shivraj raised an alarm on which, a number of persons gathered there. Mahadevlal died on the spot and the accused ran away. On receipt of this report, a case for offence under Section 302 read with Section 34, IPC was registered and the investigation commenced. Nabisher Khan (P.W. 9), Station House Officer, Police Station Deoli, after taking down the report, arrived at the spot. He also arrested the accused, Ramesh and recovered clothes which he was wearing. Thereafter the investigation was done by Surinder Singh (P.W. 10) who after reaching the spot, prepared the inquest report and then site plan & memorandum of inspection. He also recovered Chappal & Kurta lying on the spot which were alleged to be of a person named Shivraj. Part of the investigation was also done by Shivdutt Sharma (P.W. 15), Circle Officer, Deoli, and ultimately, a charge-sheet was submitted against all the four accused appellants in the Court of Chief Judicial Magistrate, Tonk, for offence under Section 302, [PC. The case was then committed to the Court of Sessions. Learned Sessions Judge, Tonk, read over charge of offence under Section 302,IPC simpliciter, to accused, Ramesh alias Tarjan and under Section 302/34, IPC to accused appellants, Satyanarain, Kishanlal and Kanhaiyalal. The accused pleaded not guilty to the charge and claimed to be tried. 4. The prosecution examined 15 witnesses in support of its case. Accused, Ra mesh and Ka nha iyalal in their statements recorded under Section 313, Cr.P.C. came with the case that a scuffle took place between deceased, Mahadevlal,and accused Ramesh and then Mahadevial inflicted blows by lathi on the person of Kanhaiyalal. Other two accused took no defence and they denied the prosecution story. The learned trial Court relied upon the statements of Omprakash (P.W. 1), Shivraj (P.W. 2) and Dr. V.K. Tripathi (P.W. 7), and on the strength of their evidence, convicted & sentenced the accused-appellants, as indicated above. Two sets of the appeals have been filed which are disposed of by this common judgment. 5. It is contended by the learned Counsel for the appellants that in the instant case, there is no independent evidence adduced by the prosecution. V.K. Tripathi (P.W. 7), and on the strength of their evidence, convicted & sentenced the accused-appellants, as indicated above. Two sets of the appeals have been filed which are disposed of by this common judgment. 5. It is contended by the learned Counsel for the appellants that in the instant case, there is no independent evidence adduced by the prosecution. Mahadevlal (deceased), Omprakash (P.W. 1), real brother of the deceased, and Shivraj (P.W. 2), who was account paying then from the village, all who are alleged to have come from Morla village, were very close friends and therefore, both these witnesses are highly interested ones and their statements cannot he accepted on the face value. It is submitted that there is no independent corroboration available in this case, and in the absence of the corroboration , the conviction cannot be based. It is submitted that the independent witnesses were examined but they have not supported the prosecution story and, therefore, it would not be safe to rely upon the statements of the interested witnesses. 6. The submission of the learned Counsel for the appellants is that the story given in the F.I.R., after the incident is totally changed. Neither sequence given in the F.I.R. is the same, nor injuries mentioned in the reports are corroborated by the statement of Dr. Tripathi. It is submitted that it cannot be conceived that three persons who had come to Deoli from different village with a view to see picture /movie, would not see that, and for no purpose would arrived at the crossing of Sabzi Mand i, where the shop of one of the accused, namely, Kanhaiyalal, is situated, and the incident will take place there. 7. It has also been submitted that neither motive has been disclosed in the F.I.R. nor it has been given in it that any incident had taken place earlier in the day so that the complainant party could have an occasion to pick up quarrel with the accused appellants or vice versa. Thus, on the evidence, it is established to the contrary that it were the complainants who had with common intention come to the shop of Kanhaiyalal (accused) and picked up quarrel with them, in as much as they inflicted multiple injuries on the person of Kanbaiya lal who sustained as many as nine injuries including three lacerated wounds. Thus, on the evidence, it is established to the contrary that it were the complainants who had with common intention come to the shop of Kanhaiyalal (accused) and picked up quarrel with them, in as much as they inflicted multiple injuries on the person of Kanbaiya lal who sustained as many as nine injuries including three lacerated wounds. It is also con- tended that the story given by Omprakash is not corroborated by Shivraj, and muchless by circumstances available on record. It is submitted in the alternative that the case of right of private defence of person of Kanhaiyalal is clearly made out in the circumstances of the case. 8. The submission of the learned Counsel is that when the prosecution has failed to show any nexus and there arc injuries on the person of accused, Kanhaiyalal, which remains unexplained and there are further circumstances to indicate that it is a case where injuries might have been inflicted on the person of Mahadevlal in exercise of right of private defence then there would be no application of Section 34, IPC, and accused would be entitled to the right of private defence of person of Kanhaiya lal. It is submitted that flat best, a case for exceeding right of private defence could be made against accused-appellant, Ramesh, alone for which it is submitted that the sentence which he has already suffered, would meet ends of justice. 9. Learned Public Prosecutor has supported the findings of the trial Courts. His submission is that there is over-whelming evidence to substantiate the prosecution story. His contention is the both, Omprakash and Shivraj are of sterling worth who had accompanied Mahadevlal and had seen the occurrence. It is submitted that these two witnesses who had come from village Morala stayed with the deceased till the incident had taken place and there is plausible evidence for their having not seen the cinema show as they had only cycle and had to rush to the village soon, and it is thence submitted that the injuries on the person of Kanhaiyalal are superficial in nature and there was no necessity for the prosecution to have explained those injuries. 10. We have given our thoughtful consideration to the rival contentions and perused the record. 10. We have given our thoughtful consideration to the rival contentions and perused the record. At the outset, we may mention that there is no denial of the fact that the incident had taken place between Mahadevlal (deceased) and Ramesh (accused-appellant) on the evening of 27.7.1988 at about 9.15 p.m. at the place indicated in the site plan (Ex. P.2). It is an admitted case of both the parties that the incident took place near Mamta circle in Deoli and it is opposite to the shop of accused, Kanhaiyalal. The only difference between the prosecution case and the defence case is as to in what manner the incident started, which party was aggressor, and whether it was an individual act of Ramesh or all the four accused persons participated in the crime. For that, it may be essential to re-appraise the evidence which has been brought on record. 11. We have already quoted the First Information Report, according to which, accused persons had crossed complainant party near Kissan Cinema hall and then again near Sabzi Mandi where the incident is alleged to have taken place. When the incident had taken place, it is also admitted that accused, Kanhaiyalal sustained as many as nine injuries on his person. He was medically examined at the instance of the police by Dr. V.K. Tripathi (P.W. 7) who found the following injuries on his person as mentioned in Ex. D.1 : 1. Lacerated wound 1/2" x1/2" lateral side of left upper arm. 2. Lacerated wound 3/4" X1/4" bone deep dorsal aspect of the distal inter-phalengeal point of right 4th finger. 3. Lacerated wound 1" x1/2 x1/2"'deep web between right 3rd and 4th finger. 4. Soft tissue swelling with tenderness involving the circumstance of the right leg just above ankle. 5. Bruise 5" X'1/2" - right arm anterior side. 6. Bruise 3" x 2" - right axilla. 7. Bruise 4" x 1/2 right side of back - (Thorosic region) 8. Bruise 6" x1/2 Right side of lumber region 9. Bruise 5" x 1/2 left side of back - (Thorasic region). For injury Nos. 2 & 4, X-ray was advised. 12. Dr. Tripathi also conducted post mortem of deceased, Mahadevlal at 9.45 p.m. and found the following injuries on his person as noted in post mortem report Ex. P.17) 1. Bruise 6" x1/2 Right side of lumber region 9. Bruise 5" x 1/2 left side of back - (Thorasic region). For injury Nos. 2 & 4, X-ray was advised. 12. Dr. Tripathi also conducted post mortem of deceased, Mahadevlal at 9.45 p.m. and found the following injuries on his person as noted in post mortem report Ex. P.17) 1. Stab wound - left side of chest, just medial to the nipple 3/4" x 1/2" in size (length x width) externally. Lateral border is straight, medial border is sane-circular. In depth it has gone through the left lung, piercing diaphragm and entering into liver by' W. 2. Circular stab wound 1" medial to right nipple. 1/2 x1/2 "externally. Skin deep only. Muscles in tact. 3. Stab wound ' " deep, 1" lateral to middle at the back on the level of 1-1 vertebrae Muscle deep only - External size '/." x W . 4. Abrasion below chin 1' " x 1" in size. In the post-mortem report, the cause of death was mentioned as hemorrhage due to the stab wound No. 1. Dr. Tripathi categorically mentioned that other injuries were not significant as fatal blow has pierced through the left side of the chest wall and entered the left lung cutting the bronchial trea, large vessels supplying in the area. According to him, this injury entered into the left lobe of liver by 4 " depth. The witnesses have attributed this injury to Ramesh as was mentioned in the F.I.R. 13. The case set up in statement of Omprakash (P.W. 1) was verbatim the same as given in the F.I.R. except that he improved his version that having seen the complainant party at Kissan Talkies, the accused followed them and when the complainant party reached Mantra circle, Kanhaiyalal Teli caught hold of Mahadevial from behind, he held his both hands and then Satya Narain Teli Kishanlal held him by hairs; and Kanhaiyalal then exhorted and Ramesh Tartan inflicted two knife blows in the stomach and one on the neck. 14. Om Prakash (P.W. 1) also disclosed motive of the crime and stated that 15 days earlier to this incident, Mahadevial had told that the accused persons would beat him. On cross-examination, the witness stated that Morala village is only 3 kms. away from Deoli which is place of occurrence. They had conic from Morelia to Deoli in the morning. 14. Om Prakash (P.W. 1) also disclosed motive of the crime and stated that 15 days earlier to this incident, Mahadevial had told that the accused persons would beat him. On cross-examination, the witness stated that Morala village is only 3 kms. away from Deoli which is place of occurrence. They had conic from Morelia to Deoli in the morning. Shivraj used to conic on a jeep and while he and Mahadev had conic to Deoli by the way, then he stated that Mahadev wanted to purchase some clothes. According to him, they all the three wandered in Deoli from place to place and bus stand from morning to night but he did not make any purchase also. He has also stated that they came there to purchase under-vest and wears but did not purchase it also. They admitted that there are three movie shows viz. from 12 to 3, 3 to 6 & 6 to 9, but they had not seen any of the shows on that day. Omprakash (P.W. 1) admitted that Mahadev is his brother-in-law (Saddhoo) (his sister-in-law's husband). He stated that they used to conic at Deoli just for fun every day. He denied the suggestion that he alongwith Mahadev and some other boys of Meena community had conic to Deoli to beat Ramesh and others. He admitted that Kanhaiyalal's house is on the east of Kissan Talkies and near Sabzi Mandi. The distance, he gave out, was about 2UU yards. He admitted that they did not go to Anand Talkies also. He also admitted that if they would go to bus stand then they had to pass through that street. He denied the suggestion that Kanhaiayalal was lying down on the chaburri outside his house. He further admitted that they crossed Ramesh outside Kanhaiya's house. He also denied the suggestion that Mahadevlal was made to understand by Kanhaiya that they should not fight. He also denied that Kanhaiyalal sustained any injury in that incident. He further denied' the suggestion that Ramesh might have caused knife injury in order to save life of Kanhaiya lal. It was denied that the complainants arc doing rowdism in Deoli everyday. He stated that there are a number of shops at the place of occurrence but they were closed. 15. Shivraj (P.W. 2) has given an identical statement to that of Omprakash (P.W. 1). It was denied that the complainants arc doing rowdism in Deoli everyday. He stated that there are a number of shops at the place of occurrence but they were closed. 15. Shivraj (P.W. 2) has given an identical statement to that of Omprakash (P.W. 1). In crossexamination, he has also not assigned reasons for coming to Dcoli. He admitted that neither any movie show was seen nor the marketing was done. He also denied the suggestion that they might have come from Kissan Talkies and the incident might have taken place there. He denied that Ramesh Tarzan was alone and further that there was dispute between Mahadev and Kanhaiya when former gave lathi blows on the latter and it is at that time that Ramesh Tartan brought out knife and inflicted injuries. He has denied the suggestion that he alongwith Mahadevlal and other boys of Meena Community had gone to beat accused persons. The entire defence version was put to him and to which he denied. 16. Besides these two witnesses, there is no other eye witness of the occurrence in the case. the statement of these two witnesses is tested in the light of the circumstances, then it appears to be a case of over-implication. It is understandable as to why Mahadevlal (deceased), Om Prakash (P.W. 1) and Shivraj (P.W. 2) should have roamed fora whole day. It is admitted by them that they came in the morning and remained there till the incident had taken place. It is also admitted that they had neither made any purchase nor had they seen any cinema show. On the contrary, their story, initially put that they had to go to Kissan TaIkies, does also fall flat when Omprakash (P.W. 1) admits that there are three movie shows, one is from 12 to 3, second is from 3 to 6 and third is from 6 to 9. If there is no last show in the cinema halls at Deoli, then normally, in the evening there was no occasion for them to come at Deoli and stay there even after evening till 8.30 p.m. Thus, the theory of going to the movie show on that night is patently a false story. If there is no last show in the cinema halls at Deoli, then normally, in the evening there was no occasion for them to come at Deoli and stay there even after evening till 8.30 p.m. Thus, the theory of going to the movie show on that night is patently a false story. It appears that the complainant party went to the shop of Kanhaiyalal where some incident has taken place in which the deceased sustained injuries by knife blows at the hands of Ramesh Tarzan. Though the defence story is totally denied by both the eye witnesses yet the circumstances show that there may be truth in what the defence says. 17. We cannot ignore the injuries on the person of Kanhaiyalal (accused), as argued by the learned Public Prosecutor by saying that they-are superficial in nature. The injuries night he simple in nature but the placement of the injuries is such that all of them could not be self-inflicted. Some incident did take place opposite the shop of Kanhaiyala where the murder has taken place. It is unfortunate that neither thorough investigation has been done from the persons of the locality nor efforts have been made to bring forth genesis of the prosecution story. But this is clearly borne out that the incident took place in which Mahadevlal lost his life, and Kanhaiyalal (accused)sustained injuries a t the hands of Mahadevlal or complainant party members. Ramesh Tartan belongs to the party of Kanhaiyalal. Ramesh is his explanation recorded under Section 313, Cr.P.C. stated that the incident has taken place in between Ramesh & Mahadevlal in which his uncle (Phushpa - husband of sister of his father), Kanhaiyala intervened on which Mahadevlal inflicted injuries on the person of Kanahaiyala and he then intervened. Kanhaiyalal has also come with an identical explanation under Section 313, Cr.P.C. Thus, it appears from the circumstances that the complainant party had for sonic reasons or the other, gone to the shop of Kanhaiyala I who is uncle of Ramesh and some scuffle had taken place in which Kanhaiyalal (accused) also sustained injuries and Ramesh Tarzen inflicted knife blows on the persons of Mahadevlal (deceased). 18. However, it is established that the complainant party were at fault rather aggressors who had gone to the place of Kanhaiya lal in order to pickup quarrel. 18. However, it is established that the complainant party were at fault rather aggressors who had gone to the place of Kanhaiya lal in order to pickup quarrel. In that eventuality, if all the accused-appellants had come and Ramesh (accused-appellant) inflicted any injury in order to protect his uncle, Kanhaiya lal (accused-appellant) it is his individual act as there is no common intention and in such case, there is right of private defence. 19. There is no allegation that any of three accused-appellants, namely Satya Narain, Kishanlal and Kanhaiyalal, inflicted any injury on the person of the deceased. Thus, they cannot be said to have committed any offence. 20. So far as accused, Ramesh Tarzen is concerned, he did inflict injury by knife on the person of deceased, Mahadev. The question remains to be decided as to what offence would be made out in the circumstances of the case. We have already observed that the prosecution has failed to prove motive and genesis of its story and it has only come with a case that the injuries were caused on the person of Mahadevlal (deceased) which is acceptable. Still there is ample evidence to suggest that at the time when Kanhaiyalal (accused) was given beating by inflicted blows, Ramesh Tarzan who came with a knife, inflicted injury on the person of Mahadevlal (deceased). Ramesh had no business of cause multiple injuries on the person of the deceased in order to save Kanhaiyalal (his uncle) from being beaten. Ramesh Taran therefore exceeded right of private defence and thus can be held guilty of offence punishable under Section 304 Part (1), IPC in the circumstances of the case. The result of the aforesaid discussion is that appeal of Ramesh Tarzan is partly allowed and that of other appellants is allowed. 21. In the net result, criminal appeal No. 364/89 tiled by Satya Narain, Kishanlal and Kanhaiyalal, is allowed; these three appellants are acquitted of the charge under Section 302/84, IPC, and their conviction & sentence under that count by the impugned judgment are set aside. They are on bail and need not surrender. Their hail bonds stand discharged. 22. But, criminal appeal No. 356/89 filed by Ramesh alias Tarzan is partly allowed. They are on bail and need not surrender. Their hail bonds stand discharged. 22. But, criminal appeal No. 356/89 filed by Ramesh alias Tarzan is partly allowed. His conviction for offence under Section 302, IPC, is set aside but he is convicted under Section 304, Part (I), IPC, and his substances sentence of imprisonment is reduced to seven years' R.T. However, the fine imposed upon him is maintained. He shall be given benefits of Section 428, Cr.P.C. An amended warrant shall be sent to the jail. He is in jail where he be detained to serve out the remaining part of the sentence awarded above.Appeal partly allowed. *******