PALOK BASU, J. ( 1 ) THE aforesaid three appeals have been filed against the judgment and order dated 31-7-1978 in Sessions Trial No. A-281 of 1974. Two of the aforesaid appeals are represented Criminal Appeals by convicted accused whereas the third one is by the State against the acquittal of two of the nominated accused and also against the acquittal of convicted accused under various Sections. CRIMINAL APPEAL No. 2189 of 1978. In this appeal Gulzari Lal, Harish Chandra, Rewa Ram, all three armed with lathis, Om Prakash and Anil Kumar, armed with knives are the appellants. Gulzari Lal, Harish Chandra and Rewa Ram stand convicted under Section 323/34, I. P. C. and sentenced to three months S. I. and a fine of Rs. 500. 00. Om Prakash stands convicted under Section 304, Part II, IPC and sentenced to four years R. I. and a fine of Rs. 4000. 00. Anil Kumar stands convicted under Section 324, IPC and sentenced to one years R. I. and a fine of Rs. 1000. 00. Appellants Gulzari Lal, Rewa Ram and Om Prakash have died during the pendency of this appeal and their appeal abates. For all practical purposes, therefore, the appeal of Harish Chandra and Anil Kumar has to be examined on merits. CRIMINAL APPEAL No. 2294 of 1978. Appellant Banwari Lal stands convicted under Section 323/34, IPC and sentenced to three months S. I. and a fine of Rs. 500. 00. Appellant Banwari Lal died during the pendency of this appeal. Consequently this appeal abates. Banwari Lal appellant said to have been armed with a lathi. GOVERNMENT APPEAL No. 3008 of 1978: the State of U. P. has preferred this appeal against acquittal of all the appellants of the charges under Sections 147, 148, 307; 149, 302/ l49 IPC. This appeal relates to the acquittal of accused Prempal and Dharamvir of all the charges framed against them. ( 2 ) IT may be mentioned here that there was yet another accused, i. e. , the 9th one in the series, namely, Gyan Chandra who has died during the pendency of the trial and, therefore, the trial abated as against him but he was examined as defence witness No. 7 to prove the alleged defence version of the incident. His death apparently occurred after his deposition was recorded. His death apparently occurred after his deposition was recorded. ( 3 ) SRI Gopal Swarup Chaturvedi, learned counsel on behalf of the accused-appellants and respondents, Sri S. P. Tewari, learned counsel on behalf of the State of U. P. and Sri P. N. Misra, learned counsel on behalf of the informant have been heard at length in these appeals and the entire record has been scrutinised. ( 4 ) ONE agonising factor has to be mentioned at the outset. The incident in this case had happened on 13-4-1971. It is exactly after 23 years that the appeals have ripened for hearing. What a sad commentary indeed. ( 5 ) THE charge against the appellants and the two acquitted accused Prempal and Dharamvir was that on 13-4-1971 at 1 p. m. inside the Bazar of the town of Bilsi, Police Station Bilsi, district Budaun they formed an unlawful assembly and to achieve its common object they committed the murder of Ram Autar and also caused injuries to Bankey Lal, Jagdish and Daya Chandra. Therefore, they were guilty of offences punishable under Sections 302 / 149, I. P. C. , 307 / 149, IPC and 323/149, IPC. The appellants Gyan Chand, Gulzari Lal, Banwari Lal, Harish Chandra and Rewa Ram were further charged under Section 147, IPC while the appellants Om Prakash and Anil Kumar along with the acquitted accused Prempal and Dharamvir were further charged under Section 148, IPC. ( 6 ) THE prosecution story, in brief, is that Bankey Lal, P. W. 1 (informant) was a resident of Ward No. 1 while his Arhat (wholesale) shop was in Ward No. 2 of Town Bilsi. Accused Banwari Lals Godown was situate towards south of Bankey Lals shop and thereafter the Godown of Gulzari Lal appellant and his brother Gyan Chand co-accused was situate towards the north of Anil Kumar shop, there exists the Arhat shop of Banwari Lal. Thereafter there is a lane towards cast of which every Arhat shop has its open Pucca Kharanja or Kuchcha Kharanja (permanent shed or temporary shed) where- after the main road of the town Bilsi passes north to south. ( 7 ) ON l3-4-1971 at 1 p. m. one Jagdish, s/o Sita Ram brought a cart-load of pea for sale at Bankey Lals shop where Ram Autar, Jagdish, P. W. 2 and Daya Chand P. W. 4. were sitting. ( 7 ) ON l3-4-1971 at 1 p. m. one Jagdish, s/o Sita Ram brought a cart-load of pea for sale at Bankey Lals shop where Ram Autar, Jagdish, P. W. 2 and Daya Chand P. W. 4. were sitting. Accused Prempal, Om Prakash, Anil Kumar, Harish Chandra were sitting at the Arhat shop of the accused Banwari Lal and Gyan Chand. Accused Dharam Vir and Rewa Ram were also sitting there. Accused, Gulzari Lal and Banwari Lal armed with lathis came to Bankey Lals shop and asked Jagdish to sell his grain at their shop but Jagdish refused which resulted in some altercation and abusing. At this co-accused Gyan Chand instigated that Bankey Lal should be killed as he was claiming equal status. At this accused Prempal, Dharamvir, Anil Kumar and Om Prakash armed with open knives and accused Harish Chandra and Rewa Ram armed with lathis rushed there and beat Bankey Lal and Jagdish with lathis. Bankey Lal plied his lathis in self-defence which caused some injuries to Gulzari Lal. Thereafter Bankey Lal, Jagdish, Ram Autar and Daya Chand, all of the prosecution side, ran towards Market to save themselves but the accused chased them and near the cloth shop of Gyan Chand Jain all the four armed with knives started stabbing Ram Autar and Daya Chand at the Tiraha (three road-crossing) on the main road. Ram Autar fell down but Daya Chand succeeded in running away after receiving injuries. This incident was witnessed by Raghunandan Prasad, Misri Lal, Ram Prakash, etc. One Om Babu reached the Tiraha followed by Bankey Lal, P. W. 1 and Jagdish, P. W. 2. All these three took the injured Ram Autar to Bilsi Hospital where he was declared dead by Dr. Sarvesh Chandra, P. W. 5. Bankey Lal dictated an F. I. R. to Om Babu at the hospital and asked Om Babu to carry it to the Police Station and lodge it there. Consequently, the written report Ext. Ka. 1 was filed at the Police Station, Bilsi at 2. 15 p. m. A case was registered vide general diary entry and true copy of the said entry and the Chik register have been proved as Exts. Ka. 9 and Ka. 10 respectively. ( 8 ) P. W. 5 Dr. Sarvesh Chandra examined the injuries of Jagdish and Bankey Lal at 3. 05 p. m. and 3. 15 p. m. A case was registered vide general diary entry and true copy of the said entry and the Chik register have been proved as Exts. Ka. 9 and Ka. 10 respectively. ( 8 ) P. W. 5 Dr. Sarvesh Chandra examined the injuries of Jagdish and Bankey Lal at 3. 05 p. m. and 3. 10 p. m. and the medical reports have been proved, as Exts. Ka. 2 and Ka. 3. P. W. 5, Dr. Sarvesh Chandra has further proved that he forwarded a memorandum to Police Station, Bilsi about the death of Ram Autat This witness had further admitted that he had examined Gulzari Lal accused at 3 p. m. vide medical examination report Ext. Ka. 5. Daya Chand rushed to Budaun and got himself treated and examined by Dr. N. A. Farooqui P. W. 9. Dr. Farooqui had found two incised wounds and one stab wound on Daya Chand at 3. 30 p. m. when he was medically examined. This has been proved as Ext. Ka. 8. P. W. 13 Ram Singh, Head Moharrir was present when the F. I. R. was lodged in the absence of the S. H. O. or any Sub-Inspector. Consequently, he tackled with the initiation of the investigation and went to Bilsi Hospital to collect the clothes of Bankey Lal and Jagdish and prepared their memoranda Ext. Ka. 11 and Ext. Ka. 12 respectively. He also conducted inquest on the dead body of Ram Autar and prepared challan nash and photo nash vide Exts. Ka. 13, Ka. 14 and Ka. I5. He sealed the dead body and sent it for post-mortem examination. P. W. 6. Dr. R. C. Bansal conducted the post-mortem examination on the dead body of Ram Autar which report has been proved as Ext. Ka. 6. Thereafter Ram Singh proceeded to the spot, took blood-stained and plain earth vide memorandum Ext. Ka. 16 and prepared thereafter two site plans Exts. Ka. 17 and Ka. 18. It may be mentioned here that the learned trial Judge had inspected the spot in the presence of the counsel for the parties and the correctness of the site plans prepared by Head-Moharrir Ram Singh was not disputed. It is said that Ram Singh made efforts to trace out the accused but failed. The bloodstained clothes of the accused Gulzari Lal were also collected by Ram Singh vide memorandum Ext. Ka. 20. It is said that Ram Singh made efforts to trace out the accused but failed. The bloodstained clothes of the accused Gulzari Lal were also collected by Ram Singh vide memorandum Ext. Ka. 20. The matter was then handed over for investigation to thc C. I. D. P. W. 15 Vedpal Singh, Inspector of the C. I. D. submitted a charge-sheet against all the nine accused on 9-7-1972 vide Ext. Ka. 24. The Chemical Examiner and Serologists report indicates that the blood-stained clothes of Ram Autar, Bankey Lal and Jagdish had human blood spots. Those reports have been marked as Exts. Ka. 25 and Ka. 26. ( 9 ) ACCUSED Gyan Chand was the father of appellant Om Prakash whereas appellant Anil Kumar is the son of Om Prakash appellant. Appellant Gulzari Lal is the brother of Gyan Chand and accused Prempal is the son of Gulzari Lal whereas accused Dharam Vir is the son of Banwari Lal. The only two outsiders in the array of the accused happened to be Harish Chandra who is said to be a friend of Gulzari Lal whereas accused Rewa Ram is said to be a partner of Banwari Lal. ( 10 ) THE prosecution has produced four eye-witnesses to prove its case. P. W. 1 Bankey Lal, informant, P. W. 2, Jagdish, and P. W. 4 Daya Chand alias Dayalu are the three injured eye-witnesses apart from the fourth eye-witness, namely, Ram Prakash, P. W. 3. The learned trial Judge has disbelieved the statement of P. W. 3, Ram Prakash for cogent reasons. There does not appear to be any justifiable ground to discard the finding of the learned trial Judge as regards the testimony of Ram Prakash, P. W. 3. However, not much should turn on the course in not placing reliance on P. W. 3 Ram Prakash for the mainstay of the prosecution happened to be the three eye-witnesses who received, as per the prosecution version, injuries in the same incident. ( 11 ) ALL the appellants have denied the prosecution case and attributed false implication. They have examined seven defence witnesses. D. W. 1, R. S. Rathore, D. W. 2, O. P. Jain, D. W. 3, Krishna Gopal, D. W. 4, M. S. Battra have been examined to prove the alibi of the accused Prempal and a part of the defence version. They have examined seven defence witnesses. D. W. 1, R. S. Rathore, D. W. 2, O. P. Jain, D. W. 3, Krishna Gopal, D. W. 4, M. S. Battra have been examined to prove the alibi of the accused Prempal and a part of the defence version. The other part of the defence version sought to be proved by the testimony of D. W. 5 Bheem Sen, D. W. 6 Bharat Singh and as to the actual manner of assault accused Gyan Chand examined himself as D. W. 7 and D. W. 8 Lalla Babu. Apart from the aforesaid eight witnesses the defence have also filed 23 papers marked Exts. Ka. 1 to Ka. 23. ( 12 ) IT may be stated here that the learned trial Judge has mixed up the whole issue and as has been noticed a little while later he started judging the prosecution case by partly referring to the prosecution evidence and partly referring to the defence evidence. This is not permissible. It is always open to a trial court to come to an independent finding on the basis of what appears to be reasonable manner of the incident and in this view convict or acquit the accused. It has to be remembered that falsehood of the defence case is not going to strengthen the prosecution case and likewise if there be some infirmity in the prosecution version that by itself was not to strengthen the defence version. ( 13 ) IN this case the fact that Jagdish, Bankey Lal and Daya Chand have received injuries in the incident as alleged by the Prosecution has not been challenged at all. It has also not been challenged that the incident had happened at 1 p. m. in the Arhat. All that has been challenged by the defence is that while the prosecution case alleges the incident in the Arhat culminating into the incident at the Tiraha at one transaction, the defence says that what happened at the Arhat shop was independent of what happened at the Tiraha. ( 14 ) IT must be noticed here and now that Gulzari Lal, one of the accused had sustained injuries in the incident about which explanation exists in the F. I. R. itself, Moreover, the injury on Gulzari Lal was found to be one multiple wound and one lacerated wound only. ( 14 ) IT must be noticed here and now that Gulzari Lal, one of the accused had sustained injuries in the incident about which explanation exists in the F. I. R. itself, Moreover, the injury on Gulzari Lal was found to be one multiple wound and one lacerated wound only. His medical examination was conducted by P. W. 5 Dr. Sarvesh Chandra. No other person on the accused side had sustained any injury even according to the defence version. It may be stated again that if the origin of the Marpit as is said to have been the altercation at the Arhat shop of Ram Autar deceased then the continuity may well be established because of the lodging of the F. I. R. with promptness and followed by medical examination of the victims by P. W. 5 Dr. Sarvesh Chandra. There is, to repeat, no F. I. R. lodged on behalf of the accused and the evidence of D. W. 7 Gyan Chand and D. W. 8 Lalla Babu are only version coming up for consideration before the Court after about 7 years of the incident. Therefore, there was absolutely nothing on the record to indicate that the accused had set up any definite plea through an F. I. R. or a complaint. ( 15 ) IN view of the aforesaid discussion the prosecution evidence as disclosed by the aforesaid three eye-witnesses has to be closely scrutinised. Before adverting to this scrutiny it may be mentioned that the trial court had wrongly held that P. W. 2 Jagdish or for that matter any of the prosecution witnesses has attributed specific role to Anil Kumar alone as assaulting Daya Chand or for that matter any of the three injured witnesses. It is not known on what basis the trial Judge has found that Anil Kumar was solely responsible for causing injuries to Daya Chand. It is true that Anil Kumar was said to have caught hold of Daya Chand but simultaneously he and all other witnesses said that the other accused also caused injuries by the knives. Moreover. It is not known on what basis the trial Judge has found that Anil Kumar was solely responsible for causing injuries to Daya Chand. It is true that Anil Kumar was said to have caught hold of Daya Chand but simultaneously he and all other witnesses said that the other accused also caused injuries by the knives. Moreover. assuming that because of one injury having been found on Daya Chand the aforesaid implication would suggest specific role of Anil Kumar in so far as causing injuries to Daya Chand is concerned, it will be no ground to expect or hold that so far as Ram Autar is concerned all the four had not participated to cause injuries by the knives. ( 16 ) DR. Survesh Chandra P. W. 5 Medical Officer of E. S. I. Dispensary, Kanpur was then posted as Medical Officer Primary Health Centre, Bilsi. On 13-4-1971 at 3. 05 p. m. he conducted medical examination of the injured Jagdish P. W. 2 and issued his injury report as per Ext. Ka. 2 according to which he found one lacerated injury 2 cm. x 1 cm. x skin deep on right scalp 10 cm. above right ear and also swelling 5 cm. x 4 cm. on front of right knee and he was advised for X-ray for the second injury. In his opinion both injuries were simple, fresh and caused by some blunt object. Thereafter at 3. 10 p. m. he conducted medical examination of Bankey Lal, P. W. 1 and issued his injury report as per Ext. Ka. 3 according to which he found four injuries on his body as under :- 1. Lacerated injury 4 cm. x 1 cm. x skin deep on left scalp 1 cm. abovc left ear. 2. Contusion 5 cm. x 1 cm. on back of right forearm 18 cm. above right wrist. 3. Contusion and swelling 9 cm. x 6 cm. over back of right palm which was kept under observation and injured was advised for X-ray. 4. Lacerated injury 1 cm. x 0. 5 cm. x skin deep on palmer surface of second crease of middle finger right. Surrounding area swollen which was also kept under observation and advised for X-ray. 5. The patient also felt pain in his left shoulder. ( 17 ) IN the opinion of doctor all these injuries were fresh and caused by some blunt object. x 0. 5 cm. x skin deep on palmer surface of second crease of middle finger right. Surrounding area swollen which was also kept under observation and advised for X-ray. 5. The patient also felt pain in his left shoulder. ( 17 ) IN the opinion of doctor all these injuries were fresh and caused by some blunt object. The doctor has further said that both the injured were brought to him by the constable Ghasi Ram for their medical examination. He then goes on saying that at 2 p. m. Ram Autar was also produced before him but he was in dead condition and he had sent an information of it to Thana Bilsi as per letter Ext. Ka. 4. ( 18 ) ON the same day at 3 p. m. he had conducted medical examination of the injured accused Gulzari Lal and issued his injury report as per Ext. Ka. 5 according to which he found two injuries on his body as under:-1. Lacerated injury 6 cm. x 1 cm. x bone deep on right scalp 7 cm. above right ear. 2. Area of swelling 10 cm. x 10 cm. out right scalp over which injury No. 1 was situate. this injury was kept under observation and the patient was advised for X-ray. ( 19 ) IN the opinion of doctor both these injuries of Gulzari Lal were simple, fresh and caused by some blunt object like lathi. Then he says that the injured Gulzari Lal was brought to Hospital by constable Sukkhan Khan of Thana Bilsi for his medical examination. In his cross-examination the doctor had said that he never refused to conduct medical examination of the injured Bankey Lal P. W. 1 and Jagdish, P. W: 2 while Bankey Lal, P. W. 1 has said that when they went to Hospital and produced themselves before the doctor, he refused for medical examination. In this way he has contradicted the statement of Bankey Lal, P. W. 1. But the contradiction is of little value to the defence because the same constable had accompanied the three victims as also accused Gulzari Lal. It goes to show that first Gulzari Lal was medically examined, while medical examination of Bankey Lal, P. W. 1 and Jagdish, P. W. 2 was conducted after him. But the contradiction is of little value to the defence because the same constable had accompanied the three victims as also accused Gulzari Lal. It goes to show that first Gulzari Lal was medically examined, while medical examination of Bankey Lal, P. W. 1 and Jagdish, P. W. 2 was conducted after him. The notable feature is that all the medical examinations were done by the same doctor in quick succession. ( 20 ) DR. Ramesh Chandar Bansal, P. W. 6, private Medical practitioner of Budaun was then posted as Medical Officer in District Hospital, Budaun. On 14-4-1971 at 10. 15 p. m. he conducted post-mortem examination on the dead body of Ram Autar and issued his post-mortem report as per Ext. Ka. 6 according to which he found ante mortem injuries on his body as under:-I. Punctured wound 1/2" x 1/4" x 2" suprasferual region horizontal. ii. Perforating wound 1/4" x 1 / 2" x cavity deep left side chest in front 2" below and medial to left nipple. iii. Punctured wound 1"x 1/2" x 1" left side abdomen 2" to the left of umbilicus. iv. Incised wound 1" x 1/4" x 1/ 2" left upper arm vertical 2" above elbow. v. Linear abrasion left elbow posteriority. vi. Incised wound I /2" x 1/ 10" x 1/ 4" on the back of neck oblique. vii. Incised wound 1/2" x 1/ 10" x 1/2" right scapular region oblique. viii. Incised wound 2" x l / 2" x 1 / 10" right side back, vertical I" below and behind posterior fold of axilla. ( 21 ) THE doctor has said that the deceased Ram Autar was brought to him for his postmortem by constable Sukkan Khan of Thana Bilsi. In his opinion the deceased was about 27 years old and his death should have been caused one day past. He found that rigor mortis was present over upper and lower limbs and froth was coming out of nostrils and his pericardium was ruptured and his chest cavity left side was containing 2 pounds of blood. In his stomach the doctor found the liquid food and his bladder and gall-bladder were empty. In the opinion of doctor his death was due to shock and haemorrhage. In his stomach the doctor found the liquid food and his bladder and gall-bladder were empty. In the opinion of doctor his death was due to shock and haemorrhage. After post-mortem he sent the clothes of the deceased that is, one shirt, one pajama, baniyan and under-wear in a sealed packet along with 8 papers in a closed cover to the police. ( 22 ) COMING to the testimony of P. W. 1, Bankey Lal, it may be stated here that his medical examination was conducted at 3. 10 p. m. as noted above vide injury report Ext. Ka. 3. Nothing has been brought out in the cross-examination of the doctor as to why his evidence about the injury sustained by him should not be believed. The lodging of the F. I. R. by this witness promptly at the Police Station also goes to corroborate the time of the incident and, therefore, there is nothing on the record to show or suggest that the manner of the assault as spoken by this witness goes to disprove the version set up in the F. I. R. ( 23 ) IT may be mentioned here that he has fully explained how the accused Gulzari Lal sustained injuries when lathis were plied by him in self-defence. Moreover, Gulzari Lal having sustained practically two injuries, one being only swelling the version put in by this witness is much more probable than any other with regard to the injuries sustained by Gulzari Lal. ( 24 ) SIMILARLY, PW. 2 Jagdish has fully corroborated the prosecution case and he too was examined medically at 3. 05 p. m. as noted above. He had sustained two injuries which could be possible only in the manner as suggested by him during the deposition. Though searching cross-examination was made towards these two witnesses, they remained unshaken and it does not appear just and proper to discard their testimony as to the manner of the assault or the end thereof at the Tiraha. ( 25 ) PW 4 Daya Chand had also two injuries noted above who was also distantly related to the deceased Ram Autar. He is an educated witness and had passed Intermediate examination. ( 25 ) PW 4 Daya Chand had also two injuries noted above who was also distantly related to the deceased Ram Autar. He is an educated witness and had passed Intermediate examination. He has also narrated in detail how the cart load of pea was brought to the Arhat of Ram Autar at which the accused side became aggressive and asked the said cart-owner to bring the pea to their shop; which was refused. He has also narrated the manner in which lathis were plied whereafter Ram Autar, Bankey Lal and others started running towards Tiraha who were chased by the accused with knives and ultimately assaulted with those knives at the Tiraha. Consequently there is nothing on the record to disbelieve the statement of PW 4 Daya Chand. ( 26 ) COMING to the criticism advanced by Sri Gopal Swarup Chaturvedi, learned counsel for the appellants that independent witnesses have not been produced, it may be stated that thc prosecution has already examined three of the injured witnesses and, therefore, no useful purpose would have been. served if the number of witnesses would hate been multiplied. Sri Chaturvedi, learned counsel for the appellants placed strong reliance on the finding of the trial Judge that since Tiraha is at a distance of about one furlong from the Arhat of Ram Autar, therefore, eye-witness account stands discredited to the extent that the chase by the accused side should not have continued for such a long distance particularly because all lathi injuries were allegedly caused only at the Arhat site while only knives injuries were caused at the Tiraha site. This according to Sri Chaturvedi, learned counsel for the appellants, has inherent improbability. ( 27 ) THE argument of the learned counsel for the appellants suffers from two fallacies. Firstly. the beginning of the assault was because of the lathi injury and at that stage nobody could have assessed that other accused would have suddenly joined and chased the witnesses. And secondly once chasing had begun, it goes without saying that the accused would not stop till they achieve their object. It is a different matter, as subsequently rightly argued by Sri Chaturvedi, as to what intention should be inferred from this act of the accused but the fact of chasing only for a furlong does not diminish the accuracy of the prosecution version. It is a different matter, as subsequently rightly argued by Sri Chaturvedi, as to what intention should be inferred from this act of the accused but the fact of chasing only for a furlong does not diminish the accuracy of the prosecution version. ( 28 ) YET another argument advanced on behalf of the appellants was that the trial court rightly criticised the prosecution in having not examined the said Jagdish whose cart-load of pea became subject matter of the controversy. To say the least, he had already seen enough because of his having brought cart-load of pea and how one would expect of him to give evidence and perhaps see yet another repetition of what he has seen already. An ordinary citizen would not like to involve himself in such matters where big whole-sellers were involved and as appears from the record practically all top counsel of the District were engaged from one or the other side. Consequently too much emphasis on non-examination of Jagdish is wholly misplaced. ( 29 ) BEFORE proceeding further, yet another argument of Sri Chaturvedi must be noted here. He laid emphasis on the entire evidence of DW 7, Gyan Chand and DW 8, Lalla Babu in order to show that their version appears to be probable and since their testimony would go to indicate exercise of right of self-defence by the accused when Gulzari Lal was said to have been beaten, the burden on the defence should be deemed to have been well discharged if preponderance of probability is shown by the testimony of these two witnesses. ( 30 ) THIS compels a close look at the testimony of these two defence witnesses. It may be stated here that Gyan Chand has not been able to explain any of the injuries sustained by the deceased Ram Autar as also by three injured witnesses, and therefore, deposition made by him appears far too short of creating preponderance of probability. Similarly, DW 8, Lalla Babu has been examined to bifurcate the prosecution case into two stages which, as per the testimony of this witness, is not established at all. Similarly, DW 8, Lalla Babu has been examined to bifurcate the prosecution case into two stages which, as per the testimony of this witness, is not established at all. ( 31 ) COMING now to the learned trial Judges finding placing reliance on three, factors on the basis of which he has convicted appellant Om Prakash under Section 304, Part-II, IPC, it may be stated here that none of the reasoning would indicate that the offence should fall under Sec. 304, Part-II, IPC. It is a different matter whether ultimately under Sec. 302, IPC, charge is brought home or not. ( 32 ) THE primary finding of the trial Judge is as follows :-"i am of the opinion that there was a sudden fight at Arhat whether it arose on account of the cart of Jagdish or on account of cart of Lalla Babu. lt is a definite case of the prosecution that at Adhat the quarrel took place on the pea cart of Jagdish a resident of village-Reonai while according to defence Adhat occurrence took place on account of pea cart of Lalla Babu. Here I would like to mention that the defence version carries some weight because Lalla Babu has come in evidence and he was also examined by C. I. D. while Jagdish has not been examined in evidence by the prosecution for the reasons best known to it. "as discussed above the aforesaid finding of the trial Judge about the theory of sudden fight is not borne out from the evidence on the record and consequently the other finding about non-production of Jagdish by the prosecution and examining of one Lalla Babu as defence witness loses all relevance on the point of or theory of sudden fight. ( 33 ) ONCE the theory of sudden fight is disbelieved and the defence version as sought to be proved by DW 7 Gyan Chand and supported by DW 8 Lalla Babu is also discarded then nothing lacks in the prosecution case and, therefore, PW 1 Bankey Lal, PW 2 Jagdish and PW 4 Daya Chand, all of whom are injured witnesses, are to be believed and the prosecution case has to be held proved. ( 34 ) BEFORE coming to the question as what offence would be made out as against those who were said to have been armed with knives a finding has to be recorded about the participation of co-accused Prempal who has been acquitted by learned trial Judge on having found that his plea of alibi is well established by the evidence produced by him. It may be stated here that Prempal has specifically pleaded before the trial Judge that on 13-4-1971 he had gone to the office of C. A. G. and in that regard had examined DW 1, R. S. Rathore, DW 2, O. P. Jain, DW 3, Krishna Gopal and DW 4, M. S. Battra. It cannot be said that the view taken by the trial Judge about the participation of Prempal is erroneous. Consequently his plea of alibi must be held to have been succeeded rightly. ( 35 ) THE prosecution case about chase being given by four persons armed with knives stands discarded to the extent of participation of Prempal accused. It may be stated here that the charge under S. 302, IPC was sought to be made out on the so-called exhortation or inciting made by the co-accused Gyan Chand who has since died. On a close examination of the statements of the witnesses it was wholly unnecessary to allege that Gyan Chand had excited or incited his associates because once the Marpit had taken place because of cart-load of pea of Jagdish being attempted to be taken away to the accused side and admittedly an altercation took place growing into abusing, subsequently changing into a chase and beating, Gyan Chand was not needed to excite the remaining accused. It was rightly pointed out by learned counsel that the deceased Ram Autar had one perforating injury, one linear abrasion, four incised wounds and two punctured wounds. An injury each on the chest and neck can be, said to be serious one either of which may have resulted in the internal damage which caused the death of the deceased Ram Autar. It is not known who is the author of either of these injuries and one exhortation part is disbelieved the maximum that can be said is that the accused had the knowledge that they may be causing injuries which were likely to result in the grievous hurt to the victim. It is not known who is the author of either of these injuries and one exhortation part is disbelieved the maximum that can be said is that the accused had the knowledge that they may be causing injuries which were likely to result in the grievous hurt to the victim. On the facts and circumstances of the present case I was no necessary for all the accused armed with knives to share or even idividually have the intention to cause death of Ram Autar. The result, therefore, is that charge under S. 326, IPC alone can be said to have been made out as against Anil Kumar, Om Prakash and Dharam Vir. ( 36 ) THIS is the appropriate place to discuss another aspect of the matter touched by the trial court. He has said that the doctor had expressed a view in the cross-examination that all the injuries sustained by Ram Autar deceased could not have been caused by knife. On very carefully going through the statement and the measurement of the injuries sustained by the decveased in the incident and the internal damage caused by thos injuries, it is impossible to accept the said view of the doctor. The location and the type of the injuries and the part of the body touched indicate that those were caused by knife which ultimately caused the death of Ram Autoar deceased. Therefore, there was obsolutely no contradiction between the deposition made by the eye-witnesse before the trial court and the medical report as prepared by PW 6 Dr. R. C. Banal. Thi part of the reasoning of the learned trial Judge is also erroneous and is hereby rejected. ( 37 ) SIMILARLY the charge under S. 307, IPC is not borne out by the evidence on record. All accused have to be acuitted of the said charge. The result is that criminal appeal of banwari Lal has to abate while criminal appeal of Gulzari lal and otthers has to partly succeed and similarly the Government appeal has also to partly succeed. All accused have to be acuitted of the said charge. The result is that criminal appeal of banwari Lal has to abate while criminal appeal of Gulzari lal and otthers has to partly succeed and similarly the Government appeal has also to partly succeed. It was pointed out and not disputed that Anil Kumar, Dharamvir, and Harish Chandra accused have been in jail for more than one month, four months, eight months respectively before they were enlarged on bail during trial and no useful purpose would be served by sending these three surviving accused to jail all over again after 23 years of the incident and thus the the period already undergone by them should meet the ends of justice. It was said rightly that the principal accused Om Prakash having already died, the fine amount has to be realised from his family members, therefore, the imposition of fine on Om Prakash and also Anil and Harish Chandra be set aside. I does not appear just and proper after 23 years to send these three surviving accused to jail or to impose any fine on them. Under the circumstances the amount of fine of Rs. 4,000. 00, Rs. 1,000. 00 and Rs. 500. 00 levied on Om Prakash, Anil Kumar and Harish Chandra respectively have also to be set aside. ( 38 ) THE result of the aforesaid discussion is that in Criminal Appeal No. 2189 of 1978:` (I) the appeal of (ulzari Lal, Rewa Ram and Om Prakash abate, (ii) the appeal of Harish Chandra. is dismissed in so far as his conviction under S. 323/34, IPC but sentence of three months S. I. and a fine of Rs. 500. 00 are set aside and reduced to the period already undergone. The Government appeal is allowed and Harish Chandra stands convicted under S. 326; 149, IPC also and is sentenced to the period already undergone. He is on bail. He need not surrender and his bail bonds are discharged, (III) the appeal of Anil Kumar is also dismissed in so far as his conviction under S. 324. IPC but sentence of one years R. I. and fine of Rs. 1,000. 00 are set aside and reduced to the period already undergone. The Government appeal is allowed and Anil Kumar stands further convicted under S. 326/149, IPC and 148, IPC also and is, sentenced to the period already undergone. IPC but sentence of one years R. I. and fine of Rs. 1,000. 00 are set aside and reduced to the period already undergone. The Government appeal is allowed and Anil Kumar stands further convicted under S. 326/149, IPC and 148, IPC also and is, sentenced to the period already undergone. He is on bail, he need not surrender and his bail bonds are discharged. ( 39 ) CRIMINAL Appeal No. 2294 of 1978: This appeal abates as Banwari Lal is dead. ( 40 ) IN Government Appeal No. 3008 of 1978: (I) it stands dismissed as against Prempal accused, (ii) but it is partly allowed as against Dharam Vir. While upholding his acquittal under Ss. 302/149, IPC, 307/149, IPC, he is instead convicted under S. 326/149, IPC and 148, IPC and sentenced to the period already undergone. He has furnished bail bonds in pursuance of the warrants issued by this Court at the time of admission of the Government appeal. His bail bonds are discharged. He need not surrender, (III) it stands partly allowed against Harish Chandra as noted above, (iv) it stands partly allowed against Anil as noted above, (v) it abates as against Banwari Lal, Rewa Ram, Om Prakash and Gyan Chand. Order accordingly. .