JUDGMENT Palok Basu J. 1. THE aforesaid criminal appeal arises out of the judgment and order dated 28.8.76 whereby the 1st Additional District and Sessions Judge, Saharanpur has convicted and sentenced the appellants, Bagoo Ram, Pawan Kumar, Amar Singh and Baldev Singh to undergo four year's R.l. under Sections 307/140, I.P.C. and 18 month's R.I. under Section 452, I.P.C. Appellants Bagoo Ram and Pawan Kumar were further convicted under Section 148, I.P.C. and sentenced to one year R.I., and appellants Amar Singh and Baldev were further convicted under Section 147. I.P.C. and sentenced to six months R.I. in Sessions Trial No. 184/75 relating to the incident which arises out of the First Information Report lodged by Chunni Lal. 2. THE aforesaid Government appeal arises out of the same incident but concerning the cross F.I.R. which was lodged by Kashmiri Lal at the same police station against seven respondents in the Government appeal who were tried in sessions Trial No. 183/75 under Sections 148, 302/149 and 307/149, I.P.C, but have been acquitted by the trial Judge of all those charges. By order of this Court, the two matters have been directed to be heard together though the evidence in both Sessions Trial was different and judgment by the trial Judge was also different. The purpose behind the aforesaid orders appears to be to facilitate a proper understanding of the case as it will be easier to reach the truth after the evidence is closely scrutinised. 3. THE Investigating Officer collected whatever evidence he could and left the burden upon the court to determine the truth from out of the two charge sheets and if either was incorrect, which side could really be termed as aggressor. As noted above, learned Judge placed reliance on the prosecution case in the Sessions Trial No. 184/76 and convicted and sentenced the four appellants holding them to be aggressors. He did not think it proper to convict the seven accused in sessions Trial No. 183 of 1976 and acquitted them who now are the respondents in the Government appeal. 4. AT the outset it may be stated that in the criminal appeal, there are two persons who have sustained injuries on the accused side. Pawan Kumar appellant was medically examined on 15.2.76 at 10.40 p.m. by Dr. V. K. Jain and the following injuries were found on his person : 1. Incised wound 3.5 cm. 4. AT the outset it may be stated that in the criminal appeal, there are two persons who have sustained injuries on the accused side. Pawan Kumar appellant was medically examined on 15.2.76 at 10.40 p.m. by Dr. V. K. Jain and the following injuries were found on his person : 1. Incised wound 3.5 cm. x 1.5 cm. v.muscle deep on front of right region. Margins clear cut. Profusely bleeding. 2 Incised wound 3 cm. x 2 cm. x muscle deep on the outer side of right region. Margins clean cut. Profusely bleeding1, 3. Lacerated wound 5 cm. x 1/2 cm. x.muscle deep front of left side head 15 cm. above the left Ear. Inj. Kept U.O. Advised K-ray. 4 Incised wound 3 cm. x 1 cm. x depth not probed in the right Axilla. Profusely bleeding Margins are clean cut. Kept. U.O. Advised X-ray. 5 Incised wound 1 cm. x 3/4 cm. x muscle deep in the middle of the right Axilla Margins clear cut. Profusely bleeding. Kept U.O. Incised wound 3 cm. x 1 cm. x depth not probed on the left side chest 8 cm. above lateral to the umblious. Margins clean cut. Kept U.O. Advised X-ray profusely Bleeding. 5. INCISED wound 3 cm. x 15 cm. at left Inquinal region Omentum is commignut margins clean cut profusely kept U.O. 6. INCISED wound 1.5 cm.x 1 cm. depth not probed on left side chest 9 cm. below the left Nipple. Kept U.O. Profusely bleeding. Margins are clean cut. Similarly on the accused side, Tarsem, the deceased, received a large number of injuries and consequently died. The post mortem examination on the dead body was conducted on 17.2.76 at 3.30 p.m. by Dr. M. B. Juyal who found the following Ante mortem injuries : 1. INCISED wound 4 cm. x 1 cm. x bone on right side head 7 cm. above the ear. Margins clear cut direction obliquely entirio posterior. 2. INCISED wound 5 cm. x 1.5 cm. x bone on the back of lead left side 3 cm. from middle line direction obliquely transval margins clear cut. 3. INCISED wound 2 cm. x .5 cm. x scalp on right mastoid region of head, direction vertical. 4. INCISED wound 2.5 cm. x .25cm. muscle on right side neck just below the angle of lower Jane. Direction transverse and margins clear cut. 5 INCISED wound 2 cm. from middle line direction obliquely transval margins clear cut. 3. INCISED wound 2 cm. x .5 cm. x scalp on right mastoid region of head, direction vertical. 4. INCISED wound 2.5 cm. x .25cm. muscle on right side neck just below the angle of lower Jane. Direction transverse and margins clear cut. 5 INCISED wound 2 cm. x .2 cm. x skin on the right side neck just below the anterior third of lower border of lower jaw, direction obliquely transverse. 6. Traumatic swelling 4 cm. x 2'.5 cm. on front and right side of chin. 7. INCISED wound 3.5 cm. x 1.5 cm. x chest cavity deep transverse. Margin clear cut inter castal space between 7th plus 8th ribs has been punctured through. 8 INCISED wound on right side chest 4 cm. below the middle of the clavicle bone six 2 cm. x .5 cm. x muscle Direction vertical. Incised wound 1 cm. x .2 cm. x skin 3 cm. outer to right nipple on right side chest direction transverse. 7. INCISED wound 2.5 cm. x 1 cm. x abdomen cavity deep on the left side abdomen 11 cm. above inguiual ligament and 5 cm. from umblicus Direction transverse 5 omentum protruding out through wound. 8. TWO incised wounds on back left index finger lower third .5 cm. apart each measuring 5/4 cm. x .1 x skin in vertical direction. Incised wound 2 cm. x 3/4 cm. x muscle on outer aspect of left arm upper third. 9. INCISED wound 5 cm. x 1 cm. muscle on lateral aspect of chest right side middle direction vertical. 10. INCISED wound 2 cm. x .5 cm. muscle on front of right thighs 2 cm. above the knee. As against this, on prosecution side, three persons sustained injuries. Baldeo Raj who has not been examined by the prosecution in the trial Court and whose medical examination was conducted on 15.2.75 at 11.10 p.m. had sustained the following injuries : 1. INCISED wound 3 cm. x 1/2 cm. x muscle deep on left side face 21/2 cm. away from the left eye margins are clear cut. Profusely bleedingly kept U.O. advised are. 2 INCISED wound 31/2cm- * 1/2 cm. depth not probed on left side submandibular region. Inj kept U.O. margins are clean cut, profusely bleeding. 3. INCISED wound 2 cm. x 1 cm. x 1/2 cm. x muscle deep on left side face 21/2 cm. away from the left eye margins are clear cut. Profusely bleedingly kept U.O. advised are. 2 INCISED wound 31/2cm- * 1/2 cm. depth not probed on left side submandibular region. Inj kept U.O. margins are clean cut, profusely bleeding. 3. INCISED wound 2 cm. x 1 cm. depth not probed front and left side foot of the neck. Margins clean cut, profusely bleeding. Inj. Kept U.O. Subhash Chand has been examined as P.W. 1 in the trial has been medically examined on 16.2.76 at 11.25 p.m. and was said to have sustained the following injuries: 1. INCISED wound 6 cm. x 1.5 cm. an right side head 3 cm. above the hair margin. Inj. Kept U.O. Advised X-ray depth not probed, margins clean cut, profusely bleeding. 2 INCISED wound 2 cm. x 1/4 cm. x muscle deep on right side forehead 4 cm. above the right eye brow. Margins clean cut, profusely bleeding. 3. INCISED wound 2.5. cm. x 1 cm. depth not probed on mid of the left clavical margins clean cut, profusely bleeding. Injury kept U.O. Advised X-ray. 4 INCISED wound 2 cm. x 1cm. on left side head 11 cm. above the left ear. Margins clean cut. Profusely bleeding, kept U.O. Advised X-ray. 5. INCISED wound 1 cm. x 1/2 cm. x muscle deep on the top of art shoulder Inj. Kept U.O. Margins clean cut, profusely bleeding. 6 INCISED wound 4.5 cm. x 1 cm. x muscle deep on left palm 2 cm. below the base of the thumb inj. Kept u.o. Advised X-ray. Margins clean cut profusely bleeding. 7. INCISED wound 4 cm. x1 cm. on the left palm x muscle deep in between the sing and little finger. Inj. kept u.o. Advised X-ray Margins clean cut profusely bleeding. The third injured in the prosecution side i.e. Janannath who again has not been examined by the prosecution, was said to have been medically examined on 15.2.76 at 11.45 p.m. and sustained the following injuries : 1. INCISED wound 1 cm. x 1/4 cm. x muscle deep 4.5 cm. above the right eye brow. Margins are clean cut. Profusely bleeding. Kept u.o. Advised X-ray. 2. Lacerated wound 1/4cm. x 1/4cm x muscle deep in the mid of the forehead 2.5 cm. above the bridge of the nose. 3. INCISED wound 2.5 cm. INCISED wound 1 cm. x 1/4 cm. x muscle deep 4.5 cm. above the right eye brow. Margins are clean cut. Profusely bleeding. Kept u.o. Advised X-ray. 2. Lacerated wound 1/4cm. x 1/4cm x muscle deep in the mid of the forehead 2.5 cm. above the bridge of the nose. 3. INCISED wound 2.5 cm. x 1 cm. depth not probed on the upper part of the left scapular region. Margins are clear cut, profusely bleeding. Kept u.o., advised X-ray. 4. INCISED wound 3 cm. x 1.5 cm. * scalp deep on right occipital region (back of head right side). Margins are clean: cut, profusely bleeding. 5 Traumatic swelling 4 cm. x 4 cm. on the back of right hand. Inj. Kept u.o. advised X-ray. 7. From the total number of injuries sustained, it appears that in the instant trial the prosecution side has sustained 15 injuries, while the accused appellant side has sustained 22 injuries. The accused side thus has two persons as victims one of whom died, whereas this prosecution side has three victims none of whom died but only one of whom has been examined as prosecution witness. 8. Sri S. K. Agarwal learned counsel for the accused appellants in the criminal appeal, Sri R. C. Deepak, learned Advocate central for the State and Sri Gopal Swaroop Chaturvedi learned counsel for the respondents in the Government appeal have been heard at length and the record of both the cases have been examined thoroughly and separately. 9. The vital questions for determination in this case is as to whether in the criminal appeal No. 2100 of 1976 there is evidence enough to accept the theory that the appellants were aggressors .and as such they had sustained the aforesaid injuries. Reliance was placed on the case of Lakshmi Singh and others v. State of Bihar and others, AIR 1975 SC 2253. It was argued that though in the First Information Report lodged by Chunni Lal, P.W. 5 an attempt has been made to assert that the prosecution side had wielded weapons in self-defence. Yet it was very rightly emphasised that it was conspicuously silent as to whether the weapons with which the prosecution side is said to have caused injuries in self defence were snatched from the accused appellants when those accused had trespassed into Subhash Chander's house. Yet it was very rightly emphasised that it was conspicuously silent as to whether the weapons with which the prosecution side is said to have caused injuries in self defence were snatched from the accused appellants when those accused had trespassed into Subhash Chander's house. It may be appropriate to put the exact wordings in the F.I.R. for further discussions (Translated in English by the Court) remembering that informant Chunni Lal was not an eye witness : "........Accused being armed with knives and kripans collected and came, started the marpit with their knives, kripans and lathis. They also beat them in self-defence, as a result of which Tarsem and Pawan Kumar of the accused side got injuries." 10. The connected point stressed in this connection was that the only injured examined in this case was P.W. 1 Subhash Chand who was attributed specific weapon to specific accused in paragraph 4 thereof but such specification was not made in the F.I.R. 11. Relevant part of the cross-sxamination translated into English as recorded in paragraph 20 may be reproduced hereunder- "Darogaji has recorded my statement twice. Second statement was recorded after first one recorded on the first day. In the first statement, I did not disclose to the Darogaji as to which accused was having what weapons. None of the accused or his supporters was having a talwar (sword). I had told the Darogaji that I and my brother had snatched the weapons from the hands of the accused and plied in self defence. If the said statement regarding snatching of the weapon from the accused is not written in my statement, I cannot give any reason for the same." 12. The aforesaid omission has been only proved by the statement of the Investigating Officer, namely P.W. 7 Iqbal Uddin Ahmad. 13. It was again argued that distance between the house of the accused appellants and that of the prosecution side namely, Subhash Chand was only 30 to 35 steps. Under the circumstances, it was urged that if the prosecution version was true, the F.I.R. from their side could and should have been lodged prior to that of the accused. 13. It was again argued that distance between the house of the accused appellants and that of the prosecution side namely, Subhash Chand was only 30 to 35 steps. Under the circumstances, it was urged that if the prosecution version was true, the F.I.R. from their side could and should have been lodged prior to that of the accused. However, as noted at the outset the F.I.R. giving rise to this appeal came into existence at 12.50 a.m. on 17.2.76 and that too at the instance - of one Chunni Lal who was not a victim or injured and happened to be only near the site. Contrary to this, the accused lodged the F.I.R. at the same police station on 15.2.75 itself at 10.20 p.m. as has been got proved by the statement of P.W. 2 Hasmat Husain Zaidi who was the Sub-Inspector of Police Station Rampur. 14. The other eye witness in this case happens to be P.W. 3 Smt. Phullu Devi who is the wife of P.W. 1 Subhash Chand. She admitted that the statement recorded by the Investigating Officer does not contain the ascertion that the accused side had tresspassed armed with weapons which were snatched by them and then the prosecution side had plied those snatched weapons in self defence. The omission in her statement has also been proved by the aforesaid Investigating Officer. It may be mentioned here that on the facts of this case, the theory of snatching the weapons is wholly unacceptable. P.W. 5 Chunni Lal has said that the incident had happened at the house of Subhash Chand and when he came to know of the details of incident that he went to police station for lodging the F.I.R. From his statement it emerges that both sides had received several injuries but it does not establish that the accused were aggressors. The last eye witness happens to be P.W. 4 Mohammad Yamin. In paragraph 2 of the examination in chief he has stated that while he was working in the dairy of Balwant and Hansraj, he heard some noise from the house of Subhash Chand and then he went there and saw that so many persons had gathered there. The last eye witness happens to be P.W. 4 Mohammad Yamin. In paragraph 2 of the examination in chief he has stated that while he was working in the dairy of Balwant and Hansraj, he heard some noise from the house of Subhash Chand and then he went there and saw that so many persons had gathered there. He saw that apart from accused Pawan, Tarsem, Amar Singh, Baggu, Baldev and another Sardar who were beating Baldev with Kripan, iron road one of the assailants picked a brick and started hitting Jagannath with it. In the F.I.R., however, there is no mention of anybody hitting or beating with brick. The testimony of this witness is also not helpful in finding out the origin of the incident, much less proving that the accused were aggressors. 11. IN view of the aforesaid discussion it cannot be said that the prosecution has successfully proved that the appellants were aggressor and they had gone inside the house of Subhash Chand. There is every likelihood that version of the appellants as it emerges from their statements under Section 313, Cr. P.C. that Tarsem was attacked and dragged into the house of Subhash Chand and some of accused had gone to rescue Tarsem seeing his life being in imminent danger, may be the correct version of the origin of the incident. The prosecution's attempt to explain the injuries sustained by the accused side has failed IN as much as it has not been shown fay prosecution evidence as to how one of the accused side died during the incident. IN this background the defence version is more than probable. 12. IN view of the aforesaid discussion the appeal succeeds and is allowed. The appellants Bagoo Ram, Pawan Kumar, Amar Singh and Baldev Singh are acquitted of the charges framed against them. They are on bail. They need not surrender, their bail bonds and sureties are; discharged. Coming to the facts giving rise to the Government appeal No. 2787 of 1976, it may be stated here that the prosecution case depended upon the eyewitness version furnished by P.W. 1, P.W. 2 and P.W. 6 of that trial. The trial Judge has held that the prosecution had not succeeded in proving their version. He has further held that there were vital contradictions and omissions in the statement. The trial Judge has held that the prosecution had not succeeded in proving their version. He has further held that there were vital contradictions and omissions in the statement. He has further held that the statement of those three witnesses in the court stands contradicted by the statement as recorded by the Investigating Officer under Section 161, Cr. P.C. On examination of the entire record, the aforesaid view cannot be said to be perverse or beyond the evidence on record. The finding of acquittal is based upon correct appraisal of the evidence and, therefore, does not require any interference. In the result, the Government appeal fails and is hereby dismissed. Appeal allowed.