JUDGMENT G. P. Mathur, J. 1. CRIMINAL Appeal No. 3267 of 1979 has been filed by Kinno alias Rajendra and Shanker alias Shankaria against the Judgment and order dated 5.12.1979 of 3rd Additional Sessions Judge, Mathura in S. T. No. 37 of 1979 of convicting the former under Section 304, Part 1 J.P.C. and sentencing him to seven years R. I. and the latter under Section 304 Part II read with Sections 34 and 323, I.P.C. and sentencing him to four years R. I. and one year respectively under the two counts. Two other persons namely Har Swarup and Hardan were also tried alongwith the appellants and all of them were charged under Sections 302, 302/34, 394 and 323, I.P.C, but they were acquitted. The CRIMINAL Revision No. 2059 of 1979 has been filed by Gopal Prasad (complainant) against the acquittal of the accused. 2. THE case of the prosecution as set forth in the F.I.R. in brief, is that deceased Prem Pal was coming alongwith his mother Smt. Katori to his village Wahadin and when he arrived near the well, he saw the mare of Kinno accused grazing in his field. When he was trying to drive out the mare, all the four accused arrived and abused him and said why he had driven out the mare. Thereafter, Kinno armed with a Pharsa and the remaining armed with lathis assaulted him. Smt. Katori raised an alarm, on which Har Swarup-accused removed some ornaments which she was wearing. THE complainant Gopal Prasad also rushed to the spot after hearing the alarm and Shanker also assaulted him with Lathi. THE injured were taken to the district Hospital and thereafter a written first information report of the incident was lodged by Gopal at 11.25 p.m. on 16.7.1978 at P. S. Kotwali which is (six) kms. from the place of occurrence. P.W. 8 Dr. C. P. Srivastava, Medical Officer, District Hospital, Mathura examined three injured on the side of the prosecution from 7.15 p.m. onwards on 16.7.1978 and found the following injuries on their person: 1. Prem Pal :- (1) Incised wound 10 1/2 cm x 2 cm x brain deep on left side of scalp 6 cm above from the left ear. Bleeding profusely Adv. X-ray. (2) Contusion in an area of 6 1/2 cm x 4 cm over left side lower portion of chest. Prem Pal :- (1) Incised wound 10 1/2 cm x 2 cm x brain deep on left side of scalp 6 cm above from the left ear. Bleeding profusely Adv. X-ray. (2) Contusion in an area of 6 1/2 cm x 4 cm over left side lower portion of chest. 2 Gopal Prasad :- (1) Traumatic swelling 6 cm x 2 cm outside of left forearm joint below elbow joint. (2) Lacerated wound 2 cm x 1/2 cm scalp deep right side of scalp near bore head 7 cm above from the right ear. (3) Lacerated wound 1 1/2cm X 1/2 cm x scalp deep left side of scalp 6 cm above from the left ear. (4) Contused swelling 7 cm x 21.2 cm obliquily on the back of waist line. 3. Smt. Katori: (1) Traumatic swelling 5 cm x 5 cm on back of right forearm of middle 1 3/rd. (2) Traumatic swelling 3 cm x 1 1/2 cm on muscle of right middle and ring fingers. Prem Pal was taken to Agra as his condition was serious where he succumbed to his injuries at 8.30 a.m. on 21.7.1978. P.W. 6 Dr. D. C. Saxena conducted post mortem on his body on the same day at 3.15 p.m. and found two stitched wounds on his body. On internal examination he found stitched wound on left side of scapula left parietal bone Just above (temporal parietal suture. Lessing of occipite parietal suture present and lacerated and congested below left parietal temporal bones. Clotted blood underneath of above present. Brain substance also lacerated on the region congested present. In the opinion of the doctor, the death had occurred due to cerebral haemorrhage caused as a result of head injury. 3. KUMHAR (father of Har Swarup-a-accused) also lodged the F.I.R. of the incident at 7.45 p.m. on 16.7.1978 at P. S. Surir which has been proved by D.W. 3 Dwarika Prasad Constable. According to the defence version the accused also received injuries. The injuries of Shanker Lal, KUMHAR Singh were examined from 9.35 p.m. onwards on 16.7.1978 and that of Smt. Sarjo at 12.05 p.m. on 18.7.1978 by D.W. 2 Dr. M. C. Mittal. M. O. Incharge P. M. C. Med and he found the following injuries on their person : 1. Shanker Lal: (1) L. W. of 4.5 cm. The injuries of Shanker Lal, KUMHAR Singh were examined from 9.35 p.m. onwards on 16.7.1978 and that of Smt. Sarjo at 12.05 p.m. on 18.7.1978 by D.W. 2 Dr. M. C. Mittal. M. O. Incharge P. M. C. Med and he found the following injuries on their person : 1. Shanker Lal: (1) L. W. of 4.5 cm. x bone deep over mustoid process of left ear (curved) Bleeding started on as nipulation (under observation). (2) Bruise of 6 x 2 cm on the outer aspect of left arm in middle. (3) Incised wound of 5.3 cm x muscles deep oblique in direction from inner to outer on the back about in middle. Bleeding much Pt. Semi conscious B. P. 98/60 mps. 2 KUMHAR: (1) Abrasion 4x1 cm on the right shoulder joint on front side. (2) Llnner abrasion of 5 x .5 on the back of leg on part aspect of lower third. (3) Traumatic swelling 8x8 cm. on the left ankle joint on the outer aspect. Inj. under observation. Adv. X-ray. (4) Cl. severe body pain, giddiness. a Smt. Surja. Bruise of 10 x 4 cm on the left groinn area to outer side of hip front colour changes started (violet- pinkilers). D.W. 1 Dr. J. P. Garg, M. O., P. M. C, Med, examined Kinno alias Rajendra at 11.00 a.m. on 17.7.1978 and found the following injuries on his person ; Kinno alias Rajendra: (1) Contusion 2.0 cm. x 3.0 cm. 5 cm. below right elbow over back of rt arm, simple blunt object. (2) Contusion 3.0 cm. x 1.8 cm. over front of Rt. knee simple, blunt object. The investigation of the case was commenced by C.W. 1 K. M. Upadhyaya S. O. of P. S. Surir, but on the complaint of first informant-Gopal, the S. P. Mathura by his order dated 30.7.78, directed that the investigation be done by P.W. 11 Shyam Singh Tomar. S.O.P.S. Brindaban. After completing the investigation, he submitted charge sheet against the accused, as well as in the cross case. The accused were committed to the court of Sessions where they were charged under Sections 302, 302/34, 323 and 394, I.P.C. 4. THE accused in their statement under Section 313, Cr. S.O.P.S. Brindaban. After completing the investigation, he submitted charge sheet against the accused, as well as in the cross case. The accused were committed to the court of Sessions where they were charged under Sections 302, 302/34, 323 and 394, I.P.C. 4. THE accused in their statement under Section 313, Cr. P.C. denied the prosecution case and stated that the incident did not take place on account of grazing by mere but Marpit took place in the field of Kumhar Singh over the cattle and Gopal had assaulted them. They examined two doctors and Dwarika Prasad Head Constable as defence witnesses. P.W. 10 Suresh Chandra Tiwari, Naib Tahsildar recorded the dying declaration of Prem Pal at 10.30 p.m. on 16.7.1078 in the district hospital. In his dying declaration, Prem Pal stated that he was grazing buffalo In the fields when Klnno and Shanker accused assaulted him with Pharsa and he fell down. Thereafter, Kinno again assaulted him with a Pharsa. Later on he stated that Shanker had caught hold of him by waist and Kinno assaulted by Pharsa. 5. P. W. 2 Gopal has corroborated the version given by him in the F.I.R. in his examination-in-chief and also stated that he had plied Lathi in order to save his mother and brother. In his cross-examination he has stated that none of the accused had removed ornaments of his mother and said fact had been wrongly written in the FIR. His statement under Section 161, Cr. P.C. was recorded after two months as K. P. Upadhyaya, S. O. of P. S. Surir had not recorded his statement earlier, but the same was done by S. O. of P. S. Brindaban. P. W. 1 Babu Lal has stated that he was scrapping grass in the field of Janki when he heard alarm and saw all the four accused abusing Prem Pal in his field on the ground that he had driven out the mare. Kinno assaulted Prem Pal with Pharsa but he saved himself and thereafter, Shanker caught hold of him but in that process he fell down. Kinno then assaulted him with Pharsa. Meanwhile, Smt.Katori arrived who was assaulted by remaining three accused by Lathis. Gopal after hearing alarm came on the spot and plied Lathi in order to save his brother. Kinno assaulted Prem Pal with Pharsa but he saved himself and thereafter, Shanker caught hold of him but in that process he fell down. Kinno then assaulted him with Pharsa. Meanwhile, Smt.Katori arrived who was assaulted by remaining three accused by Lathis. Gopal after hearing alarm came on the spot and plied Lathi in order to save his brother. In his cross- examination, he has admitted that the fact that Gopal had used lathi had been stated by him for the first time in the Court. He further stated that he does not know as to why the S. O. of P. S. Brindaban had not noted such a fact in his statement under Section 161, Cr. P.C. P.W. 3 Khajan Singh has stated that he was coming from his field when he heard the alarm. He has given the same version of the incident as P.W. 1 Babu Lal. In his cross-examination, he has admitted that the cross-case with regard to the same incident was pending against him. He further stated admitted that he had not told the I. O. that Gopal had plied Lathi. P.W. 4 Smt. Katori (mother of Prem Pal) has stated that she was returning from their parental home alongwith Prem Pal. On seeing his field being grazed by the mare went there to drive it-out but the same was objected to by the four accused and exchange of words took place. Kinno gave the first blow by Pharsa but it did not hit him. Shanker caught hold of him, but in the process of releasing himself, he fell down and then Kinno gave him a Pharsa blow, the remaining three accused also assaulted with Lathi, she tried to save Prem.Pal in which she also received Lathi blows. Gopal and Khajan came on the spot and former plied lathi in order to save them. 6. P.W. 5 Dwarika Prasad-Head Constable has prowed chick F.I.R. lodged by Gopal Prasad P.W. 7 Vishwambhar Singh Constable has proved the original F.I.R. which was lodged by Gopal at P. S. Kotwali on 16.7.1978. P.W. 9 Mahipal Singh ASI P. S. Kotwali Agra had held inquest on the body of the deceased and he proved the documents prepared by him, P.W. 11, Shayam Singh Tomar, S. O. of P. S. Brindaban has proved the steps taken by him during the investigation. P.W. 9 Mahipal Singh ASI P. S. Kotwali Agra had held inquest on the body of the deceased and he proved the documents prepared by him, P.W. 11, Shayam Singh Tomar, S. O. of P. S. Brindaban has proved the steps taken by him during the investigation. He has further stated that none of the witnesses had said in their statements under Section 161, Cr. P.C. that Gopal had plied Lathi in self-defence and that Shanker and others received injuries. He has also stated that the place of occurrence was at a distance of one furlong from the house of both the parties. In the F.I.R., it has been mentioned that Prem Pal assaulted with Pharsa and remaining three accused namely Shanker, Hardan and Har Swarup assaulted with lathis. The statement of all the four eye-witnesses is also to the same effect. However in the dying declaration of Prem Pal, he had mentioned the presence of only two persons namely Kinno and Shanker and has further stated that both of them had assaulted with Pharsa. He has not told the name of Hardan and Har Swarup-accused. Though all the witnesses have stated that Shanker was armed with Lathi but he has stated that he was also armed with a Pharsa. Thus, there is serious contradiction between the statement of eye-witnesses and the dying declaration with regard to the presence of Hardan and Har Swarup- accused as well as the weapon with which Shanker is alleged to have been armed at the time of incident. The dying declaration also shows that three blows by Pharsa were given which is not corroborated by the medical evidence. 7. IN the first INformation report, it is stated that Har Swarup-accused removed Hansuli and Khadua (OrnameniJs) which Smt. Katori (mother of Prem Pal) was wearing. However, in his statement in examination-in-chief P.W. 2 Gopal has not given any such statement. On the: contrary in the cross-examination, he has stated that he had wrongly mentioned about the removing of ornaments in the FIR. None of the other eye-witnesses including P.W. 4 Smt. Katori have said anything regarding removing of ornaments from her person. IN her cross- examination she has stated that her ornaments had been kept by her sister-in- law (brother's wife) in her parental home and she was not wearing any ornaments. None of the other eye-witnesses including P.W. 4 Smt. Katori have said anything regarding removing of ornaments from her person. IN her cross- examination she has stated that her ornaments had been kept by her sister-in- law (brother's wife) in her parental home and she was not wearing any ornaments. This shows that Gopal has tried to falsely implicate Har Swarup- accused by assigning a specific role of removing ornaments. 8. THE accused in this case have come out with the plea of self defence. Kumher Singh, father of Har Swarup-accused had also lodged a F.I.R. of the incident at 7.45 p.m. on the same day i.e., 16.7.78 at P. S. Surir which has been proved by D.W. 2 Dwarika Prasad-Head Constable. Through the statement of D.W. 1 Dr. J. P. Garg and D.W. 2 Dr. M. C. Mittal. it has been established beyond doubt that four persons namely Kinno alias Rajendra, Shanker (accused) Smt. Surjo and Kumher Singh, mother and father of Har Swarup-accused also received injuries in the incident. Har Swarup is nephew of Kinno-accused. THE injury reports of these persons show that Shanker had received a lacerated wound over mastoid process of left ear in which bleeding started on manipulation and an incised wound on the back. D.W. 2 had stated that the said injury was on the vital part and there was heavy bleeding besides the blood pressure was low. Doctor had described the said injury as dangerous to life. Even if the statement of witnesses as given in Court is accepted, there is no explanation for the incised wound sustained by Shanker- accused as only Gopal is alleged to have plied Lathi in defence. That apart the fact Lathi was plied by P.W. 2 Gopal in defence, has not been mentioned in the F.I.R. P.W. 11 Shyam Singh Tomar has stated that he recorded the statement of eye-witnesses on 1.10.78 which means after 2 1/2 months of the incident. He has categorically stated that none of the witnesses had said during the course of their statement under Section 161, Cr. P.C. that Gopal had plied Lathi in self defence due to which Shanker and others received injuries. He has categorically stated that none of the witnesses had said during the course of their statement under Section 161, Cr. P.C. that Gopal had plied Lathi in self defence due to which Shanker and others received injuries. It may be noticed that the injury of Shanker and Kumher were examined in the same night at 9.30 p.m. and 10.00 p.m. respectively and that of Kinno alias Rajendra at 11.00 a.m. on the following day in P. M. C. Med and they were brought thereby police Constables. Therefore, it cannot be said that their injury reports are not genuine. THE presence of injuries on the aforesaid persons is, therefore, fully established. THE injuries do not appear to have been self suffered the prosecution has failed to give explanation of the injuries sustained by four persons on the side of accused. THE fact that the explanation for blunt weapon injuries has come for the first time in Court shows that the same was given after legal advice. There is absolutely no explanation for the incised wound sustained by Shanker Lal. From what has been stated above, we are of the opinion that the prosecution has not come out with a correct version of the incident. The statement of witnesses does not appear to be truthful on account of the discrepancy noticed above as well as non-explanation of the injuries of the accused at the earliest stage. It appears that the incident took place in an altogether different manner. It is also highly doubtful that Gopal alone was able to cause injuries to four persons if four accused, out of whom three armed with Lathis and one with Pharsa, were assaulting him. The learned Sessions Judge has recorded a finding in paras 31 to 35 of the judgment that the incident was occasioned by grazing of crops standing in the field of Kumher Singh and that the prosecution story that Smt. Katori was returning from her parental home alongwith Prem Pal was false. He has also held that trouble was caused by grazing of the crop of Kumher Singh by buffaloes of opposite party. He has also held that trouble was caused by grazing of the crop of Kumher Singh by buffaloes of opposite party. Since the exact place of occurrence as well as origin of Marpit itself, as given out by the prosecution, was not found to be correct by learned Session Judge, it was not proper for him to have carved out a third case and convict the appellants on its basis. 9. HAVING given our careful consideration to the material on record as well as the submissions made by learned counsel for the parties, we are clearly of the opinion that the prosecution has miserably failed to prove its case against any one of the accused. 10. IN the result, the appeal is allowed. The conviction of the appellants as well as the sentences imposed upon them by learned Sessions Judge are set aside. They are on bail. They need not surrender. Their sureties and bail bonds are discharged. Criminal Revision No. 2059 of 1979 filed by Gopal Prasad is hereby dismissed. Appeal allowed.