JUDGMENT Mr. Kundan Singh, J. - This appeal has been preferred by ten persons against the judgment and order dated 6.8.79, passed by Sri R.D. Shukla, the then III Additional Sessions Judge, Ghazipur, in Session Trial No. 92 of 1978. Whereby he has convicted all the appellants under Section read with Section I.P.C. and sentenced each of them to two years' rigorous imprisonment and also under Section 323 read with Section 149 I.P.C. and sentenced them to one years' rigorous imprisonment each. 2. Briefly narrated, the prosecution case is that in village Sherpur Kalan, within police station Bhanwarkol, district Ghazipur, there was some communal tension between Harijans on one side and Bhoomihars on the other owing to some incidents of arson and murder and both the communities were litigating. Due to that tension police and P.A.C. were posted in the village to maintain law and order. On 12.2.76 at about 5 p.m. informant Mahendra Prasad Rai, resident of village Sherpur, had gone to the office of Settlement Officer (Consolidation) at Ghazipur. On return, while the informant, Harihar Rai, Radhey Shyam Rai and Tarkeshwar Rai were going on two motor bicycles and reached near Katwa ka pool, they saw a mob of 400-500 persons of Harijan community coming towards Ghazipur to demonstrate before the District Magistrate. As soon as they reached near that procession, some of them exhorted their companions to do away with them as that was an opportune time for them. Thereupon a few persons amongst the processionists ran towards them and started assaulting with lathis. They slowed down the speed of their motor-bikes, New horns and tried to run away by speeding up the motor cycles. However, they were surrounded and beaten by the processionists. While making bid to run away, they left their motor cycles on the spot but they were chased and beaten. Mahendra Prasad Rai and his companions fell down but the beating continued. In the meantime witnesses arrived and they rescued them. It is also mentioned in the First Information Report that they recognised 30 persons who exhorted and assaulted them. Nazir Ahmad and Samad Khan who had also come on the spot and tried to save Mahendra Prasad Rai and his companions, they were also assaulted and caused injuries. The F.I.R. of this incident was lodged by Mahendra Prasad Rai on the same day at about 7.00 p.m. at Police Station Kotwali Ghazipur. Nazir Ahmad and Samad Khan who had also come on the spot and tried to save Mahendra Prasad Rai and his companions, they were also assaulted and caused injuries. The F.I.R. of this incident was lodged by Mahendra Prasad Rai on the same day at about 7.00 p.m. at Police Station Kotwali Ghazipur. Thereafter a copy of the First Information Report was sent to Station Officer Police Station, Nonahara, who met in the way and received the copy. He sent that copy to Police Station Nonahara where it was entered in the G.D. and then investigation started. 3. The injured Mahendra Prasad Rai, Tarkeshwar, Radhey Shyam Rai and Harihar Nath Rai and the two witnesses Nazir Ahmed and Samad Khan came to district Hospital Ghazipurwhere they were medically examined by Dr. P.C. Srivastava. He found as many as six lacerated wounds, 8 contusions and one multiple abrasions on the person of Tarkeshwar Rai. All his injuries were simple. On the person of Radhey Shyam Rai the Doctor found 6 lacerated wounds, two multiple contusions, one traumatic swelling and four abrasions. Similarly, on the person of Mahendra Prasad Rai, the Doctor found five lacerated wounds, one contusion, 7 traumatic swelling contusion and one abrasion. Likewise on medical examination of Harihar Nath Rai the Doctor found only one abrasion, Nazir Ahmed and Samad Khan also suffered one contusion and traumatics swelling, each. 4. Accused Baleshwar Ram Kuril was arrested and put up for indentification but he has been acquitted by the trial Judge. 5. Lallan Prasad Srivastava, Station Officer Police Station Nonahara initially investigated the case. He recovered statements of the witnesses, prepared site plan of the place of incident and took blood stained clothes of the victims in custody. On his transfer, the investigation was entrusted to Sri Asa Ram Tripathi, who completed the remaining investigation and submitted charge-sheet against 30 persons. Out of these 30, one had died before commencement of the trial and thus, in all, 29 persons were put to trial. 6. The accused persons pleaded not guilty to the charge and claimed to be tried. 7. In all, 12 witnesses were examined by the prosecution. Out of them, Mahendra Prasad Rai, (P.W. 1) Radhey Shyam Rai (P.W.2), Tarkeshwar Rai (P.W.5) and Samad Khan (P.W.10) are the injured persons and witnesses of the factum of incident. 6. The accused persons pleaded not guilty to the charge and claimed to be tried. 7. In all, 12 witnesses were examined by the prosecution. Out of them, Mahendra Prasad Rai, (P.W. 1) Radhey Shyam Rai (P.W.2), Tarkeshwar Rai (P.W.5) and Samad Khan (P.W.10) are the injured persons and witnesses of the factum of incident. Dr.P.C. Srivastava (P.W.3) was examined to prove the injuries of the aforesaid injured persons. Suresh Singh (P.W.4) was posted as Head Moharrir at the Police Station Kotwali Ghazipur at the relevant time and he bad prepared the chick report and made entry in the G.D. Chiteshwar Nath Tewari (P.W.7) was examined to prove the G.D. entry of Police Station Nonahara, Sri Rajendra Pandcy (P.W.6) is the Executive Magistrate, who conducted the identification proceedings of Baleshwar accused in the District Jail, Ghazipur. Ziya Ram Yadav (P.W.8) is the Constable, who along with another Constable brought accused Baleshwar Baparda and consigned him in district Jail Ghazipur. Sri Heera Lai, Sub Inspector (P.W.9) was examined to prove the arrest of Baleshwar accused and also certain G.D. entries made in that connection at the Police Station, Kotwali, Ghazipur. This is the entire synopsis of the prosecution evidence led in this case. 8. The accused persons denied the prosecution version. In his statement recorded under Section 313 Cr.P.C. Radhey Shyam accused stated that they were coming in a procession. Harihar Nath Rai and others crushed the son of Sheonath with a motor cycle and when they were asked to stop their motor cycles, they speeded them up in the crowd and tried to run away. In a bid to apprehend them and also in defence some persons among that crowd wielded lathis which might have hit them. Accused Kailash stated that his statement is also like that of co-accused Radhey Shyam. Accused Hari Saran stated that the son of Sheonath had been crushed and due to that reason he has been implicated in this case. Shconath stated that his son was crushed by the motor cycle which was in a high speed. When the complainant side sped up their motor bikes in the crowd it was objected to by the processionists and the latters also wielded lathis in self defence. He also stated that an F.I.R. was lodged by him at the Police Station Kotwali but it has not been investigated by the police. When the complainant side sped up their motor bikes in the crowd it was objected to by the processionists and the latters also wielded lathis in self defence. He also stated that an F.I.R. was lodged by him at the Police Station Kotwali but it has not been investigated by the police. Sheonath further deposed that he was a witness against Bhoomihars in the litigation with Harijans. Bahadur and Ganga accused stated that they have been falsely implicated due to enmity. Accused Sidhnath, Sudeshwar, Sudarshan and Sati Ram stated that the son Sheonath was crushed by the motor cycles of the complainant side. Hence due to enmity they have implicated them in the present case. 9. Accused Sheonath also lodged an F.I.R. at Police Station Kotwali Ghazipur, which has been tendered in evidence by the accused side and has been marked as Ext.Kha 1. Suresh Singh, Head Constable (P.W.4) proved this report and on the basis of that F.I.R. a case under Sections 279 and 337 I.P.C..was registered at the Police Station against the complainant side. The defence also examined Dr.P.C. Srivastava, the Radiologist, District Hospital, Ghazipur, who examined the injuries of Ram Surat, aged about 6 years, son of Sheo Nath. He advised X-ray of his injury and on X-ray a fracture on the thigh hone was found. 10. The learned Sessions Judge found the evidence against the ten appellants as consistent and trust-worthy and accordingly he convicted and sentenced them as aforesaid, though on the same evidence he found 19 other accused persons not guilty and acquitted them of the charges levelled against them. 11. The learned Counsel for the appellants argued that it is an incident which took place when a bey of six years, son of Sheonath accused, was crushed by the riders of the motor cycles and when they were asked to stop, they speeded up their motor bikes and tried to run away through the crowd and if in the bid to save themselves from speedy motor cycles and apprehending the riders somebody had used lathi in self defence no blame can be attributed to such persons and hence the accused-appellants have been wrongly convicted and sentence by the learned Trial Judge. He also argued that the victims were going on the left side but after seeing the crowd they swerved their motorcycles to the right side of the road. He also argued that the victims were going on the left side but after seeing the crowd they swerved their motorcycles to the right side of the road. The learned Counsel further argued that in the present case the accused persons have pleaded the right of private defence, they have proved that a procession was going to the office of the District Magistrate and the complainant party was driving the motorcycles rashly and negligently in the crowd also as a result of which a boy of six years was crushed, and that when the processionist asked them to stop, rather doing so they speeded up their motor cycles and tried to pass through the crowd in a high speed and if in the process of their arrest and also in self defence lathis were used, resulting i n injuries to the prosecution side including two fractures on the person of Radhey Shyam, the conviction and sentences of the appellant cannot be sustained. The learned Counsel appearing for the State. However, argued that it is a case where the accused party was inimical towards the complainant and his party men due to aroson and murder cases and when they saw the complainant party corning, they were stopped and attacked with a view to take revenge, causing two fractures on the index finger and parietal bone besides other injuries and hence the verdict of guilt returned by the learned Sessions Judge should be up-held and affirmed by this Court. 12. I carefully examined the evidence available on record and gone through the judgment of the learned Sessions Judge also. In this case either side whether it is prosecution or defence has not denied the time and place of the incident. However, regarding the manner of incident both are at conflict. According to the prosecution, the assault was made by the defence side just to settle the score of old enmity due to aroson and murder incidents in the past while the defence version of the incident is otherwise. According to then, they were going in a procession to the office of the District Magistrate and when they reached near Kutwa Ka Pool the complainant side came on two motorcycles and one of the motorcycles crushed Ram Surat son of Sheonath, a boy of six years of age. According to then, they were going in a procession to the office of the District Magistrate and when they reached near Kutwa Ka Pool the complainant side came on two motorcycles and one of the motorcycles crushed Ram Surat son of Sheonath, a boy of six years of age. When some of the processionists asked the riders of those motor bikes to get down, they speeded up their vehicles and tried to pass through the crowd in a high speed and it was then that lathis were used by some persons amongst the crowd in an attempt to apprehend the complainant side and to defend themselves, resulting in injuries on their side. Therefore, it has to be seen as to which of two divergent versions is correct and what was root cause of this incident. 13. It cannot be gainsaid not has it been denied by the prosecution that Ram Surat, son of Sheonath appellant, had sustained three injuries in his thigh due to an accident. The factum of injury and the accident is proved by the defence evidence. Dr. P.C. Srivastava who was examined in defence has proved the injury of the boy and Sheonath appellant had lodged an F.I.R. of the incident giving different version to that of the prosecution. According to Sheonath his son was crushed in a procession to the office of District Magistrate Ghazipur on 12.2.76. Thus from the very beginning the consistent case of the accused persons was that the trouble started when the complainant side crushed Ram Surat and inspite of warnings the victims did not stop and rather tried to run away on their motor cycles through the crowd in a high speed. In the prosecution evidence there is no explanation of the injury of Ram Surat. A case against the complainant side for the offences punishable under Sections 279 and 337 I.P.C. is also registered at the. Police Station as is admitted by Lallan Prasad Srivastava (P.W.12) Station Officer, Police Station Nonahara and Head Moharrir Suresh Singh (P.W.4). The Investigating Officer has also admitted that on the same day i.e., 12.2.76 at the place of occurrence of this case a boy of some Harijan had been crushed in an accident and on return at the police station he had learnt that the boy who met with an accident was son of Sheonath and that case was under investigation. The Investigating Officer has also admitted that on the same day i.e., 12.2.76 at the place of occurrence of this case a boy of some Harijan had been crushed in an accident and on return at the police station he had learnt that the boy who met with an accident was son of Sheonath and that case was under investigation. Hence, from the defence evidence it is clear that Ram Surat sustained injury in an accident at the time and place where the incident of this case is said to have occurred. The prosecution version about the incident does not appear to be honest and above board, while the defence version put forth is straight forward and more convincing, which cannot be ruled out vis-a-vis the injury sustained by the boy of Sheonath appellant and the statement of the Investigating Officer that on 12.2.76 at Kutwa Ka Pool the son of Sheonath appellant met with an accident. Certainly, the learned Sessions Judge has fallen in an error while not considering the defence version in the hack ground of the aforesaid facts and shifting the burden to defence side to prove that the incident had not taken place in the manner alleged by the prosecution. When two counter versions of an incident are before the Court, it is the duty of the Court to determine of the basis of the evidence before it as to which of the two versions is correct. In the instant case the prosecution has suppressed the fact of accident of the boy at the bridge of Kutwa on 12.2.76. Thus it is apparent that the prosecution has not come with clean hands and in order to prove their innocence and falsely implicate the appellants the complainant and the injured witnesses have given a twisted version of the incident. The defence version has a logic and force that when the riders of the motor cycles crushed the boy, they tried to stop them but in a hid to run away they sped up their motor bikes and tried to cross the crowd with high speed and it was in the process of their arrest that some injuries were caused to them. It is true that there are extensive injuries on the prosecution side but it was a case of mob attack and in such attacks the injuries cannot be assigned to a particular person. It is true that there are extensive injuries on the prosecution side but it was a case of mob attack and in such attacks the injuries cannot be assigned to a particular person. In the riots and mob attacks innocent persons are also roped in and it is not unusual that real culprits go scot free. Mahendra Prasad Rai (P.W. 1) has deposed that while he was attacked, there were 30 persons around him and some of them were shouting and others were attacking him. He could not name any particular person or persons who really assaulted him. Similarly, Rahey Shyam Rai (P.W.12) also could not name the person who had assaulted him. During cross-examination a specific question was put to him that who were the real persons they had attacked him but his answer was in negative. He candidly confessed that he was be seized from all sides and he cannot say who really attacked him. 14. Tarkeshwar Rai (P.W.5) has also admitted in his statement that all lathi wielders had surrounded them but he cannot say that whose lathi struck him. Similarly, Samad Khan (P.W.10) has also not named any person responsible for the injuries on the prosecution side. Rather he has admitted that when the processionists started beating the complainant side, the motor-cyclists tried to run away with a high speed but they could not succeed. 15. Thus from the above evidence it is quite evident that it was a case of mob attack and the injuries received on the prosecution side could not be assigned to the particular accused. The learned Sessions Judge appears to have been impressed by the number of injuries received on the prosecution side but when the injured themselves could not assign their injuries to the particular accused, how they could be held responsible for the mob attack and simply on the ground that extensive injuries were caused on the prosecution side the appellants could not he convicted and sentenced. 16. On the evidence as it exists on record, I have no hesitation to disagree with the learned Trial Judge that he has wrongly held the appellants guilty, of the charges levelled against them, ignoring the defence version put forth by the accused-appellants. 17. Accordingly, this appeal succeeds and is hereby allowed. 16. On the evidence as it exists on record, I have no hesitation to disagree with the learned Trial Judge that he has wrongly held the appellants guilty, of the charges levelled against them, ignoring the defence version put forth by the accused-appellants. 17. Accordingly, this appeal succeeds and is hereby allowed. The conviction and sentences as recorded by the learned Additional Sessions Judge are set aside and all the appellants are acquitted of the charges levelled against them. They arc on bail. They need no surrender and their bail bonds are cancelled and sureties discharged.