JUDGMENT : A.R. Srivastava, J. The III Additional Sessions Judge, Kanpur vide his judgment dated 5-8-1979 convicted Appellants Maha Prasad, Puttan, Krishnanand, Ghhunna, Bhikham Singh, Gopal, Sheo Shankar of Criminal Appeal No. 1820 of 1979 and Chhuttan of Criminal Appeal No. 1850 of 1979, of the offence punishable under Sections 302 and 307 Indian Penal Code, both read with Section 149 of the Indian Penal Code and sentenced each of them to imprisonment for life and for five years respectively on the two counts. He further convicted Appellants Puttan, Chhunna, Krishnanand and Bhikham Singh u/s 148 Indian Penal Code and awarded a sentence of 2 years R.I. and Gopal, Chuttan and Sheo Shankar u/s 147 of the Indian Penal Code and sentenced to R.I. for one year. The sentences are to run concurrently. 2. Both these appeals being connected are being disposed of by a common judgment. 3. The prosecution came forward with the story that there is a long standing enmity between the rival parties consisting of the first informant Tehsildar Singh (PW 1) and others on one side, and accused-Appellant, Maha Prasad and others on the other. On 23-5-1979 at about 4 P.M. deceased Vijai Bahadur Singh the cousin of Tehsildar Singh had gone to the house of Dharamraj Singh (PW 2) situated in village Maholi, district Kanpur to get the wheat which he was to purchase from Dharamraj Singh weighed. Dharamraj Singh along with his brother Ram Bahadur and Dharamvir were present and sitting in front of their house. Vijai Bahadur Singh on reaching there, asked for water to drink on which Dharamvir asked Ram Bahadur to fetch water, and the latter went to the well situated in front of his house with a rope and bucket to take water. The rope tied to the bucket of Ram Bahadur got entangled with the rope of accused-Appellant Maha Prasad, who was already drawing water from the said well. On this Maha Prasad started abusing Ram Bahadur. This was objected besides Ram Bahadur, by Ramvir and Vijai Bahadur. Maha Prasad thereafter left with water for his home abusing and threatening to see to them. 4. After a shortwhile the accused persons 9 in number, arrived at the scene of occurrence. Of these Maha Prasad and Bhikham Singh had guns, Chunna and Ramanand country-made pistols, Krishnanand had Farsa and Mahanand, Chhuttan, Gopal and Sheo Shankar had lathis in their hands. 4. After a shortwhile the accused persons 9 in number, arrived at the scene of occurrence. Of these Maha Prasad and Bhikham Singh had guns, Chunna and Ramanand country-made pistols, Krishnanand had Farsa and Mahanand, Chhuttan, Gopal and Sheo Shankar had lathis in their hands. Exhorting his fellow assailant to fire to kill, Maha' Prasad fired with his gun and the shot hit Vijai Bahadur who pressing his hand on the chest turned towards the gallery of the house of Dharamraj. In the meantime Chhunna, Ramanand and Bhikham also fired with their weapons, the shots hit Vijai Bahadur, Dharamraj and his; brother Dharamvir. Informant Tehsildar Singh and others with him used 'dandas' and threw brickbats towards the assailants in a bid to save themselves. Vijai Bahadur died on the spot on account of the fire arm injuries. During the course of the incident Natthu Singh, Babu Ram and Govind Pasi with their licensed guns and a few others of the village reached and reprimanded the accused persons, who thereupon ran into the house of Appellant Bhikham Singh, situated nearby and bolted it from inside. 5. A written report, (Exhibit Ka.1) regarding this incident was prepared by informant Tehsildar Singh and taken to the police station Mahrajpur, district Kanpur in the company of Dharamraj Singh and Dharamvir Singh, where an FIR was registered at 6.15 P.M. the same day and the chick FIR, Exhibit Ka 5, and G, D. Entry, Exhibit Ka 14, was prepared. The Investigating Officer Shyam Singh Parihar (PW 9) who was present at the police station took up the investigation and after recording the statements of witnesses present at the police station, proceeded to the place of occurrence. Reaching there he disputed force, in front of the house of Bhikham Singh where the accused persons were said to have been hiding and requisitioned force. He made the inquest of the dead body of Vijai Bahadur and along with the inquest report and other relevant documents Exhibits Ka 6 to Ka 9 sent it for post-mortem examination. 6. After arrival of the additional police force it about 11.30 P.M. the same night the accused persons were arrested from the house of Bhikham Singh by forcing entry therein. 6. After arrival of the additional police force it about 11.30 P.M. the same night the accused persons were arrested from the house of Bhikham Singh by forcing entry therein. From the possession of accused Maha Prasad a gun with 10 cartridges, Bhikham Singh another gun with 5 cartridges from Chhunna and Sheo Shankar country-made pistol with cartridges, Krishnanand sword and from Puttan a lathi were recovered. The accused along with the recovered articles were sent to the police Station. 7. The injuries of Dharamraj and Dharamvir were examined by Dr. R. Prakash, Medical Officer at U.H.M. Hospital, Kanpur on 24-5-1978 at 1.50 and 1.30 A.M. respectively. Following injuries were found on the person of Dharamraj vide Exhibit Ka 2. 1. Gun-shot wound 0.2 x 0.2 cm x muscle deep at lower 1/3 of right thigh, Margins are inverted. Advised x-ray for F.B. 2. Gun shot wound 0.2 x 0.2 cm x muscle deep at dorsum of right hand 1 cm below wrist. Margins are inverted. Advised x-ray for F.B; No scorching, no blackening, no tattooing present the wound. Opinion: Injuries are simple and caused by fire-arm. Duration is about half day. Dharamvir had the following injuries vide Exhibit Ka 3. 1. Gun shot wound 0.2 x 0.2 cm x depth u.o. at outer pud of left orbit. Margins are inverted. Advised X-ray. 2. Gun shot wound 0,2 x 0.2 cm x depth U.O. on left side of face 3 cm away from left angle of mouth. Margins are inverted. Advised X-ray. 3. Lacerated wound 0.2 x 0.2 x 0.1 cm of outer margin of pinna of left ear. No blackening, no scorching, no tattooing present. Opinion: Injuries are caused by fire arm. Duration about half day. Injury (3) is simple and 1, 2 are kept under observation. The autopsy on the dead body of Vijai Bahadur was made by Dr. Satish Chandra (PW 14) at 2.30 P.M. on .24-5-1978 and the following injuries were found vide Exhibit Ka 16. 1. Two gun-shot wounds of entry each 0.4 cm diameter on the left half of forehead, one being skull cavity deep and other skin deep. 2. One gun-shot wound Of entry with 0.4 diameter and eye ball cavity and skull cavity deep on the scolorn of right eye ball, just below cornea. 3. 1. Two gun-shot wounds of entry each 0.4 cm diameter on the left half of forehead, one being skull cavity deep and other skin deep. 2. One gun-shot wound Of entry with 0.4 diameter and eye ball cavity and skull cavity deep on the scolorn of right eye ball, just below cornea. 3. Five gun-shot wounds of entry, scattered separately in area 11 cm x 5 on left side of face diameter 0.4 cm x depth just skin deep (4 of them) and muscle deep one of them). 4. Four gun-shot wound of entry from 0.4 cm diameter size to 2 cm x 0'4 cm size with all just skin deep on right side of nose and cheek in area of 8 cm x 4 cm, all separate. 5. Six gun-shot wounds of entry scattered on front of neck in area of 10 cm x 7 cm with 0.4 cm diametere & skin to muscle deep. 6. Seventeen Gun-shot wound of entry in area of 25 cm x 17 cm on upper front of chest, mostly on left side with diameter 0.4 cm x depth for skin and muscle deep to chest cavity deep (fore of them) All separate. 7. Two gun shot wounds of entry scattered in front of left upper arm, with 0,4 cm. diameter and depth just muscle deep. 8. Three gun shot wounds of entry with 0.4 cm. diameter and skin and just muscle deep on the left side of chest in mid auxilly line, separate placed in a line. 9. One gun shot wound of entry with 0.4 cm diameter and just skin deep in front of abdomen, 7 cm. above and left to umbilicus. 10. Two gun shot wounds of entry with 1 cm x 0.4 cm size each on the left half of upper part of back, depth (sic) just skin deep. Death was found to be as a result of aforesaid injuries. 8. The accused persons who also had injuries were sent for medical examination to the P.H.C., Saraaul, district Kanpur where they were medically examined by Dr G. K. Misra (DW 1) between 4.15 and 7.20 PM Vide injury report Exhibit Kha 2 to Kha 9, 7 of the accused persons were found to have injuries as below: Accused Chhunna 4 Contusion, 2 traumatic swelling, one abrasion. Sheo Shankar 2 contusion. Sheo Shankar 2 contusion. Chhuttan One lacerated wound, II contusions, 10 abrasions and one traumatic swelling. Puttan alias Ramanand One lacerated wound and 2 abrasions. Bhikham Singh. One lacerated wound, one contusions and 2 traumatic swelling. Maha Prasad 3 contusions, an abrasion and a punctured wound. Gopal 2 contusions, 5 traumatic swellings, 6 abrasions besides 5 blisters on the left forearm. 9. The Investigation Officer inspected the place of occurrence took blood stained and unstained earth from the spot, also recovered 44 pellets and 5 empty cartridges from the spot and duly sealed and prepared memoes thereof. He also recorded the statements of few other witnesses. The investigating officer was thereafter taken up by the Station Officer, who on conclusion thereof submitted charge-sheet. The investigating agency also sent the recovered empty cartridges along with the weapon recovered from the accused persons for ballistic examination. 10. All the nine accused persons sent up for trial before the learned Sessions Judge pleaded not guilty and claimed to have been falsely implicated. 11. According to the defence version, in the incident in question the accused party was victim of aggression, insofar as on the date and time of the occurrence while they were repairing the tubewell of Maha Prasad, the latter went to the well for taking water. Ram Bahadur who also, had come to take water from the well, was forbidden from drawing water by a dirty vessel, by Maha Prasad, which led to an altercation and Ram Bahadur returned without taking water. Shortly afterwords Natthu Singh Kalyan Singh, armed with guns, Dharamvir, Dharamraj, Vijai Bahadur, Tehsildar, Kalika Singh, and Matoley Singh armed with lathis, came there and started assaulting the accused persons who were badly injured. Bhikham Singh who ran into his house nearby and brought a gun belonging to his relation and fired with it on which the said assailants retreated towards the house of Dharamvir. One Parath Singh was sent for lodging report to the police station. Meanwhile the police arrived and they were arrested and taken to the police station where cross FIR Exhibit Ka 10 was lodged by accused-Appellant Krishnanand. 12. On behalf of the prosecution there were examined in all 14 witnesses. Out of them Tahsildar Singh (PW 1) Dharmraj (PW 2) Kunwar Pal (PW 3) and Dhani Ram (PW 4) were the eye witnesses, PW 4 Dr. 12. On behalf of the prosecution there were examined in all 14 witnesses. Out of them Tahsildar Singh (PW 1) Dharmraj (PW 2) Kunwar Pal (PW 3) and Dhani Ram (PW 4) were the eye witnesses, PW 4 Dr. R. Prakash, Medical Officer examined the injuries of Dharmraj and Dharmvir of the prosecution side, PW constable Ramashanker who put the photographs of the place of occurrence, PW 7 Dharmraj a witness of arrest and recovery, PW 8 Junior Scientific Officer, Forensic Science Laboratory, U.P. Lucknow who examined empty cartridges recovered from the spot and the weapons recovered from the accused person, PW 9 Ram Singh Parihar an Investigating Officer, PW 10 Head Constable writer, Radhey Shyam Tripathi, PW 11 S.I. Kali Charan who took recovered articles in sealed bundles to the police station, PW 12 Raj Narain Shukla who took the dead body for post-mortem PW 13 Zahid Husain who took the injured Dharmvir and Dharmraj for medical examination and PW 14 Dr. Satish Chandra who conducted the post-mortem examination. 13. On behalf of the defence DW 1 Dr. G. K. Misra was examined to prove the injuries and the injury reports relating to the accused Appellants and DW 2 Narain Singh was examined to state the defence version regarding the occurrence. The DW 3 Constable Yadunath Singh proved the cross FIR Exhibit Kha 10. 14. The learned Sessions Judge believing the story and evidence of the prosecution, held the 8 accused Appellants guilty and sentenced them as aforesaid. He however found the prosecution case not proved against accused Mahanand and acquitted. 15. In this appeal before us, the learned Counsel Shri G. S. Chaturvedi appearing on behalf of the Appellants has challenged the conviction and the sentence handed down by the learned Sessions Judge mainly on two grounds. Firstly, that the incident in the manner stated by the prosecution is not proved to have taken place rather the evidence and the circumstance indicate the same to have occurred in the manner alleged by the victims. According to him the facts and circumstances clearly indicate that the genesis of the incident put forth by .the prosecution is not true rather the version of the defence is probable and natural, in the obtaining circumstances. Secondly, according to him, in the nature of. incident and the large number of injuries received by the persons on the accused side. According to him the facts and circumstances clearly indicate that the genesis of the incident put forth by .the prosecution is not true rather the version of the defence is probable and natural, in the obtaining circumstances. Secondly, according to him, in the nature of. incident and the large number of injuries received by the persons on the accused side. It is clear that the accused persons were victims of aggression and injuries to Dharmraj and Dharmvir, and fatal injuries to Vijai Bahadur were caused in exercise of their right of private defence. 16. On a careful consideration and scrutiny of the material on record we find force in both the contentions of the Appellant's learned Counsel. 17. As far as the factum of death of Vijai Bahadur on account of gun shot injuries caused to him on 23-5-1978 at about 4 P.M. and also causing the gun-shot injuries to Dharmraj and Dharmvir is concerned, the same is not disputed by the defence. It would appear from the post-mortem examination report Exhibit Ka 16 and the testimony of the PW 14 Dr. Satish Chandra that the injuries to deceased Vijai Bahadur were a result of 2 shots, and fired from in front and the other from behind. The injuries to Dharmraj and Dharmvir Singh appear to have been caused by one shot each In all, therefore, four shots by four of the accused Appellants armed with fire arms appear to have been fired, resulting into these injuries to Dharmraj, Dharmvir and deceased Vijai Bahadur. 18. As far as the injuries to the other side are concerned, out of 9 accused persons named in the FIR, 7 had injuries, totalling 57. One of these injuries to Appellant Maha Prasad a punctured wound was by a sharp pointed weapon whereas the remaining by blunt object. The fact of injuries in such a large number having been caused to the 7 of the accused Appellants though not stated in the FIR, Exhibit Ka 1, and not categorically admitted in the statements of the eye witnesses, the same is fully established by the injury reports exhibits Kha 2 to Kha 9 duly proved by the testimony of Dr G.K. Misra (DW 1) Medical Officer P.H.C, Sarsaul, district Kanpur. Undisputedly, these injured accused-Appellants were sent for medical examination by the police after their arrest. Undisputedly, these injured accused-Appellants were sent for medical examination by the police after their arrest. A heavy burden thus lay on the prosecution to explain as to how and under what circumstances these injuries in such a large number were caused to all the accused Appellants, except Krishnanand. 19. Although the FIR Exhibit Ka 1 contains a recital to the effect that the informant Tahsildar Singh and others with him, assaulted and caused hurt to the accused-Appellants by Lathi 'danda' and brickbats, in their deposition in the witness box, the eye witnesses examined gave almost a total good bye to this theory. In so far as the PW 1 Tahsildar Singh stated that he, Dharmvir and Dharmraj threw brickbats towards the accused persons while firing was on. In cross-examination however, he conceded that no lathi was used, only a 'danda' was thrown' towards the assailants by Dharmraj Singh while he and Dharmvir threw 3 or 4 brickbats each towards them. He did not see as to whether the brickbats or the 'danda' hit anybody. The PW 2 Dharmraj Singh stated to have thrown a 'danda' first and .thereafter he and Dharmvir to have thrown two pebbles each “towards the assailants. The PW 3 Kunwar Pal Singh and PW 4 Dhaniram also stated about Dharmraj having thrown a “danda” and Tehsildar Singh and Dharmvir Singh throwing 2 to 4 brickbats each towards the assailants, which however they did not see hitting any of the accused persons. 20. The suggestion of the FIR that the injuries to the 7 accused-Appellants about 57 in number could be caused by Lathi 'danda' and brickbats by merely three persons, during the course of firing by guns and pistols by four of the accused persons is too improbable to be believed. It is also highly improbable that in the event of four armed assailants firing with guns and pistols and the shots hitting three persons on the informant side, they would have had the courage and opportunity to use 'lathi' 'dandas' to cause such a number of injuries to the assailants, one of whom was also armed with a 'Farsa' and 4 with lathis. It is probably realising this difficulty that in order to wriggle out of the awkward situation the prosecution changed its trajectory to say that one 'danda' was thrown at assailants and mainly brickbats were thrown in self-defence. 21. It is probably realising this difficulty that in order to wriggle out of the awkward situation the prosecution changed its trajectory to say that one 'danda' was thrown at assailants and mainly brickbats were thrown in self-defence. 21. Here again the prosecution was caught in its own net. Even if given maximum allowance, the total number of brickbats/pebbles, thrown towards the assailants was eight. Even if it may be assumed that all these hit the assailants, these could not account of 57 injuries to seven accused persons, two of them with 22 and 14 injuries and one of them also getting a punctured wound by a sharp pointed weapon. Obviously therefore, the injuries to the accused-Appellants have a different story to tell and the same is that the prosecution has concealed the true facts and has set forth a false genesis regarding this incident. 22. Not satisfied with the above improvements made in the testimony of the eye witnesses, and faced with the uphill task of explaining the injuries of these Appellants, the prosecution gave a further tilt to its story by introducing in the statements of the eye witnesses that the police which arrested the Appellants from the house of Appellant Bhikham by forcing their entry therein mercilessly beat these persons by, 'lathis'. This fact however is fully belled by the statement of the investigating-cum-arresting officer Shyam Singh Parihar (PW 2) as well as the records relating to arrest and recovery Clearly therefore, the injuries to the accused-Appellants were not caused by the police at the time or after their arrest. 23. It appears a suggestion was made by the prosecution during the trial, which was also accepted by the learned Sessions Judge, that injuries could be self-inflicted and self-suffered, for the purpose of creating defence. The myth of this theory is however fully exploded when we consider the fact that ever since this incident till the time of their arrest the accused persons had confined themselves inside the house of Bhikham Singh, from where they were arrested by the police, taken to the police station, and from there for medical examination. Considering the nature and number of injuries, as well as the location thereof, it is not possible to hazard a conclusion that all these injuries could be self-suffered or manipulated. The theory 'of the prosecution thus fails on this count too. 24. Considering the nature and number of injuries, as well as the location thereof, it is not possible to hazard a conclusion that all these injuries could be self-suffered or manipulated. The theory 'of the prosecution thus fails on this count too. 24. Once it is accepted that the injuries 57 in number, to 7 of the accused Appellants were caused in this incident, and the explanation given by the prosecution regarding the same is false and untenable, the only natural and probable conclusion to follow would be that the prosecution has not come forward with clean hands and has totally concealed the genesis of the incident, which in all probability occurred in the manner stated by the defence, in which in the wake of previous strained relations, on account of the altercation which ensued between Ram Bahadur and accused Maha Prasad in the course of taking water from the well, the people on the informant side attacked and caused a large number of injuries to Appellants Chunna, Sheo Shankar, Chuttan, Bhikham, Maha Prasad, Gopal and Puttan. In any case, the incident did not take place in the manner stated by the prosecution nor the persons on the informant's side including deceased Vijai Bahadur, Dharmraj arid Dharmvir were victims of aggression as sought to be made out by the witnesses of fact examined by the prosecution. 25. It is settled law that where the genesis of the prosecution story is showed with mystery or the same has been concealed by the prosecution no credence can be given to the story set up and the testimony of the prosecution witnesses, to fasten the guilt on the accused. 26. In Makwana Takhat Singh Ratan Singh Vs. State of Gujarat, AIR 1992 SC 1989 , the case of the prosecution was to the effect that the four accused persons who had dharias with them had chased the deceased and one of them (the Appellant) gave a 'dharia' blow to the deceased and caused injuries to the other PWs who came to save the deceased. As per the medical evidence, three of the accused persons were also found to have received injuries in all, 12 in number. The trial court acquitted all the accused accepting the plea of self defence. On appeal the High Court convicted one of them. The Appellant went before Supreme Court. As per the medical evidence, three of the accused persons were also found to have received injuries in all, 12 in number. The trial court acquitted all the accused accepting the plea of self defence. On appeal the High Court convicted one of them. The Appellant went before Supreme Court. The Supreme Court while setting aside the conviction of the Appellant observed thus: What all the High Court has stated that it is the 'accused alone who chased the deceased and inflicted injuries with Dharia. But that we have to see in. a case of this nature is whether the prosecution has come out with the true story of the genesis of the occurrence. To decide as to who was the aggressor this becomes necessary when the accused had come with a plea that the prosecution party was the aggressor. The fact that (sic) injuries were found on one of the accused itself shows that one of the members of the prosecution party used the sharp edged weapon. No doubt some of the prosecution witnesses are also injured, but likewise some of the accused persons also received injuries. In this state of affairs, the view taken by the trial court that the accused party acted in exercise of right of private defence is not unreasonable.... 27. Applying the above principle to the facts of this case it would be found that the alternative contention of the accused persons, regarding injuries to the three persons including the deceased, on the informant side, cannot be brushed aside as being without substance. 28. There is no bar to accepting a plea of self defence, even though not pleaded, established from the facts and the. surrounding circumstances. As already stated above the circumstances, which are clinching in nature coupled with oral and documentary evidence led by defence go to Show that the incident in all probability occurred in the manner stated by the accused, in which oh account of altercation regarding fetching water from the well between Ram Bahadur of the informant side and accused Maha Prasad, the people on the informant side attacked the accused party and caused injuries by lathis to six of them and also by lathi and a sharp pointed weapon to Maha Prasad. The fire arm injuries to the deceased and to others obviously under these circumstances were not caused in the manner stated by the prosecution, rather were inflicted by some members of the accused party in the exercise of right of private defence. 29. In the result, in our opinion, the trial court was not justified in holding the Appellants guilty of the offences under Sections 147, 148, 307/149 and 302/149 Indian Penal Code and their conviction and sentence awarded deserve to be set aside. 30. In view of our above conclusion, both these appeals are allowed. The conviction recorded and the sentence awarded by the learned Sessions Judge are set aside. All the eight Appellants. Maha Prasad, Puttan, Krishnanand, Chhuna, Bhikham Singh, Gopal, Sheo Shankar of Criminal Appeal No. 1820 of 1979 and Chuttan of Criminal Appeal No. 1850 of 1979 are hereby acquitted. They are on bail. They need not surrender. Their sureties are hereby discharged.