JUDGMENT 1. This judgment will dispose of three appeals D.B. Criminal Appeal No. 188 of 1992 filed by Mahesh @ Pappu and Satya Narain v. State of Rajasthan , D.B. Criminal Appeal No. 93 of 1992 filed by Rajendra Singh v. State of Rajasthan and D.B Cr. Appeal No. 67 of 1992 filed by Bahuwali @ Balia v. The State of Rajasthan . All the above appeals arise out of the judgment dated 7-2-1992 passed by the Additional Sessions Judge, Ihalawar, convicting the accused appellants u:s 302/34 IPC, 324 IPC, 341 IPC, 302 IPC, 324/34 IPC and Section 341. but while sentencing the accused appellants the trial court did make a difference in the case of the accused appellant Satya Narain who though convicted u/s :,02/34 1PC was sentenced under section 302 IPC simplicity, to undergo imprisonment for life, and the other three accused appellants have been convicted under section 302/34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/-, which sentence has also been awarded to the accused appellant Satya Narain; Mahesh under section 324 1PC and others under section 324/34 1PC have been sentenced to undergo one year's R.I. and a fine of Rs. 100/- in default of payment of fine, to further undergo 15 days' R.I. while for offence u/s IPC each of the accused appellants has been sentenced to pay fine of Rs. 100/-, in default of payment of fine, to further undergo 15 days R.I. 2. The case of the prosecution is that on 17-1-1990 at about 12.15 p.m. the deceased Rajendra @ Raju along with Pradeep Kumar PW 12 resident of Jhalawar, had gone on a motor cycle to Jhalarapatan. Vimla Devi PW 8 is the sister of deceased Raju and she resides I n Jhalrapatan. The houses of both the accused appellants Mahesh and Satya Narain are opposite the house of Vimla Devi. When the deceased Ruju and Pradeep Kumar PW 12 were standing near the betel shop of one Sindhi Nathu, it is alleged that the accused appellants Mahesh Rajendra, and Satya Narain Nlantri asked Raju as to why he had slap a day earlier In the meantime, accused appellant Mahesh took a Jar full of acid, from the betal shop of Nathu and threw it at Raju. Raju received several burns and many school children who were passing through also received acid burns on face and other parts of the body. The case of the prosecution further is that Baliya accused appellant gave swords to the other three accused appellants i.e. Mahesh, Satya Narain and Rajendra Singh. Seeing that the accused persons had become armed with Swords Pramod Kumar ran away from there and the deceased Rajendra @a Raju also started running towards the house of his sister Smt. Vimla. The accused appellants Mahesh and Satya Narain are said to have given blows by sword to the deceased Raju and also chased him up to the house of his sister The deceased entered the house of Vimla, but was dragged outside her house and it is the prosecution case that the deceased narrated the incident to her that it were the accused appellants Mahesh and Satya Narain who had caused injuries to him with Sword. A report (Ex. P 25) of the incident was lodged at Police Station Jhalrapatan by Pramod Kumar, who died during the trial of the case and therefore, could not be examined as a witness on behalf of the prosecution. 3. Dr. Gouri Shankar Chouhan PW 16 conducted the autopsy on the end body of Raju who died as a result of injuries. He found that on the dead-body, there were stab wounds and acid burns. The deceased had the following injuries:- 1. Stab wound 21/2" x 1" vertical on the right side of epigastric region, just near the costal margin. 2. Incised wound 1/2" x 1/10" x 1/4 up to collar left bone. 3. Corrosive burns scattered patches present over left whole upper extremity, left side of chest and axilla up to left side of abdomen, 6" x 3" burn patch present on lateral aspect of left thigh. All the injuries were ante mortem in nature. In the opinion of the .doctor, the cause of death was shock due to injury to heart, 4. The children, as said earlier, who were passing nearby the betal shop also received injuries and Dr. Gouri Shankar Chouhan PW 16 on examining Premchand, Rakesh. Ladbai and Ram Pratap found that there were scattered burns, brownish in colour, on face and other parts of the body. 5. The children, as said earlier, who were passing nearby the betal shop also received injuries and Dr. Gouri Shankar Chouhan PW 16 on examining Premchand, Rakesh. Ladbai and Ram Pratap found that there were scattered burns, brownish in colour, on face and other parts of the body. 5. As per the case of the prosecution as disclosed in the FIR so far as the accused appellant Baliya is concerned, he is said to have given three swords to the other accused appellants and on the basis of the said FIR, a charge sheet was flied against him under section 302/34 1PC, The trial court convicted and sentenced each of the accused appellants as aforesaid. 6. Plea of the accused persons in the trial court was of bare denial and the accused persons did not examine any witness in defence but it appears that an attempt wa3 made during the course of evidence that accused appellant Mahesh was having some illicit relations with the daughter of Vimla Devi (PW 8) and as a result of that, the deceased and I rather she proves the dying declaration of the deceased that it was both the 1 accused appellants Mahesh and Satya Narain who had caused injuries to the deceased. It can therefore be said that on the basis of the material available on record, both the accused appellants Mahesh and Satya Narain are responsible for having caused the death of the deceased Raja We have already referred to the statement of Dr. Gouri Shankar Chouhan (PW.16) and at the cost of repetition it may be said that PW.16 had examined the injuries on the dead body of the deceased and found that there were two injuries by sharp edged weapon a stab wound and other incised wound. I Both the accused appellants Mahesh and Satya Narain have been rightly I convicted by the trial court under section 302/34 IPC, others had come from Jhalawar. In the statement of Dr. Gouri Shankar Chouhan PW 16, injury reports of the two accused persons i.e. Mahesh and Satya Narain were also got approved. Dr. Chouhan in his statement has stated that he examined injuries of Mahesh accused appellant and Mahesh had the following four injuries:? 1. Burn-scattered dark brown colour over right side of face and neck. 2. Lacerated wound-scab formation started 1/2" x 1/4" x muscle deep. 3. Dr. Chouhan in his statement has stated that he examined injuries of Mahesh accused appellant and Mahesh had the following four injuries:? 1. Burn-scattered dark brown colour over right side of face and neck. 2. Lacerated wound-scab formation started 1/2" x 1/4" x muscle deep. 3. Abrasion 3/4" x 1/2" on right knee ant. aspect. 4. Abrasion ⅛" x 1/10" on the tip of the middle and ring finger (Rt.) All the injuries were simple in nature. 7. On examining Satya Narain, he found that Satya Narain had a cut wound from which the bleeding was fresh on the palm of his left hand in the middle part. It was also seen by the doctor that there was a cut wound up to bone deep on the right palm and lower part of the little and ring finger Both the injuries were caused by sharp edged weapons. There were also burn injuries Thus, it appears that an attempt was made to make out a case of the exercise of right of private defence. The law is well settled that even if the accused has not pleaded the right of private defence of person or property, if from the circumstances appearing on the record, it is proved that the accused acted in the exercise of right of private defence of person or property, then the court is bound to extend the benefit to the accused person. We are of the opinion that so far as the injuries of Mabesb, accused appellant are concerned, they are superficial in nature and it was not necessary for the prosecution to explain the injuries of the accused persons. 8. Coming to the injuries of Satya Narain. As per the case of the prosecution, Satya Narain was armed with a sword and the deceased had taken the sword from his hand and in that process, Satya Narain received injuries. 9. Coming to the case of the prosecution. The prosecution case rests on the testimony of PW 12 Pradeep Kumar, PW L3 Satya Narain and PW 8 Vimla Devi. 9. Coming to the case of the prosecution. The prosecution case rests on the testimony of PW 12 Pradeep Kumar, PW L3 Satya Narain and PW 8 Vimla Devi. We have already said earlier that there can be no dispute that the deceased died as a result of the injuries received by him by sharp edged weapons like sword and this fact has not even been disputed by the learned counsel for the appellants, What has been disputed is that the prosecution witnesses were not reliable and at any rate, it cannot be said that they had actually witnessed the occurrence. They do not appear to have given out the true version and also do not appear to have given out the true genesis of the incident. According to the learned counsel for the appellants. the deceased did not belong to Jhalara Pam and he is said to have come from Jhalawar in order to take some clothes from the tailor. It was contended that it was the deceased who along With his companions came and initiated the quarrel. PW 12 is Pradeep Kumar and as per his statement, is a resident of Jhalwar and he had accompanied the deceased. He stated that no sooner they had reached the betal shop the three accessed appellants Vlahesh. Rajendra and Satya Narain were found standing. They stopped Raju (deceased) and said as to why he had slept a day earlier. While these talks were going on, Mahesh lifted a Jug full of acid from the betal shop of Nathu and threw it at Raju, Pramod and many persons who were standing there and they received injuries from acid. In the earlier part of this judgment, we have already referred to the statement of the doctor and the injury report and there can hardly be any dispute that many persons received burn injuries from acid. Therefore, the statement of Pradeep Kumar that the accused appellant Mahesh picked up a Jug full of acid from the betal shop of Nathu and threw it, stands corroborated by the medical evidence and the fact is that many persons bad received burn injuries. Pradeep Kumar (PW 12) further states that the accused Balia had given swords to the three accused appellants Mahesh, Rajendra and Satya Narain. Pradeep Kumar (PW 12) further states that the accused Balia had given swords to the three accused appellants Mahesh, Rajendra and Satya Narain. We will lateron deal with this part of the prosecution case so far as handing over of the swords by the accused appellant Balia is concerned. We will for tbe present consider the case against the accused apdellants Mahesh and Satya Narain. PW 12 Pradeep Kumar states tbat the accused appellants Mahesh and Satya Narain had caused injuries by their swords to tbe deceased Raju. So far as Mahesh is concerned, he had given blow by the sword on the neck of Raju and Satya Narain had given blows on the other parts of the body. Rajendra @ Raju (deceased) was running for his life and not to the house of her sister. It will be seen from the cross-examination that nothing favourable to the prosecution was deposed, so far as these two accused-appellants are concerned. 10. PW-13 is Satya Narain who is a resident of Jhalra Patan It has been stated by him that when he was coming towards Peepla Chouraha and when he reached the betal shop, he saw that both the accused appellants Satya Narain and Mahesh and tbe other accused Rajendra were present. Satya Narain and Mahesh stopped Raju (deceased)i there was some exchange of hot words amongst them and then Mahesh picked up a Jar full of acid from the betal shop and threw it at Raju. He received burns as well as school children who were also going away by the side of betal shop received injuries by acid. Raju started running away and when he was near tbe shop of washerman (Dhobi), Satya Narain gave a blow by the sword. Then Mahesh had taken away the sword from Satya Narain. PW-13 also states that Satya Narain and Mahesh had told Raju as to why on ihe previous day he had given beating to their brother. The deceased putting his hand over his stomach ran towards the house of his sister. Meanwhile, Ramesbwar Head Constable came from the police out post and caught hold of Satya Narain. Mahesh ran away along with the sword. A site plan (Ex. P.8) was prepared. He further states that his house is only at a distance of 1-2 furlong from the place of occurrence. Meanwhile, Ramesbwar Head Constable came from the police out post and caught hold of Satya Narain. Mahesh ran away along with the sword. A site plan (Ex. P.8) was prepared. He further states that his house is only at a distance of 1-2 furlong from the place of occurrence. A look at his statement will show that in cross-examination nothing favou-| rable to the prosecution was brought out. From his statement, it can 1 therefore be said that he has clearly stated how the incident started and j what happened Both the accused appellants Mahesh and Satja Narain | are said to have caused injuries with their respective swords to the deceased | Raju. 11. Coming to the statement of Vimla Devi (PW-8) who is sister of the deceased. It has been stated by her that hearing the alarm of her brother, she came down from her house and saw that her brother was coming running and there was bleeding from the wound which he had sustained on his abdomen. There was also bleeding from tbe wound on his neck. She further states that Raju was being chased by Satya Narain and Mabesh accused appellants and that both of them were armed with swords. It was also stated by her that her brother, Raju (deceased) told her that j boih the accused appellants Mahesh and Satya Narain had caused injuries j with sw crd, to him. She therefore corroborates the case of the prosecution, rather she proves the dying declaration of the deceased that it was both the j accused appellants Mahesh and Satya Narain who had caused injuries to j the deceased. It can therefore be said that on the basis of the material avai-j lable on record, both the accused appellants Mahesh and Satya Narain are j responsible for having caused the death of the deceased Raju. We have already referred to the statement of Dr. Gouri Shankar Chouhan (PW-16) and at the cost of repetition it may be said that PW-16 had examined the injuries on the dead body of the deceased and found that there were two injuries by sharp edged weapon a stab wound and other incised wound, j Both the accused appellants Mahesh and Satya Narain have been rightly convicted by the trial court under section 302/34 IPC, 12. Coming to the case of the other accused appellants Rajendra and Balia. Coming to the case of the other accused appellants Rajendra and Balia. We may straightaway say that there is absolutely no evidence so far as Rajendra Singh is concerned, except the statement of PW-12 Pradeep Kumar that Rajendra Singh was given a sword by the other accused appellant Balia. It has not even been stated by the two witnesses PW-12 Pradeep Kumar or for that matter by the other witness PW-13 Satya Narain, that Rajendra Singh had caused any injury to deceased. Therefore, there is no J evidence so far as Rajendra Singh is concerned, about his participation or j sharing the common intention with the other accused persons. 13. Coming to the case of accused appellant Balia. All that has been said in the FIR is that he gave swords to the three accused persons Mahesh, Satya Narain and Rajendra. It will be seen from the statement of PW-13 Satya Narain that he had not made such a statement, He has stated that this accused had given swords not to all the accused persons. The j case of the prosecution therefore about this accused giving the sword even to Mahesh and Satya Narain is not consistent. We therefore do not find j any case so far as even this accused appellant Balia is concerned. 14. Consequently we hereby partly allow these appeals but so far as appeal of the accused appellant Mahesh and Satya Narain (D.B. Criminal Appeal No. 188/92) is concerned, their conviction and sentences are maintained and the appeal is dismissed. 15. But the appeals of the other accused appellants Rajendra Singh (D. B Criminal Appeal No. 93/1992) and Bahuwali @ Baliya (D. B. Criminal Appeal No. 67/92) are hereby allowed, the judgment of the learned Additional Sessions Judge convicting & sentencing each of them under section 302/34, 324/34 and 341 IPC is set aside they are acquitted. They are on bail. They need not surrender to their bail bonds.Appeals partly allowed. *******