G. S. N. TRIPATHI, J. ( 1 ) ACCUSED Indraj, Prabhu Dayal, Bhagwat, Birmi and Ombir have been convicted on a charge under S. 326 read with S. 149, I. P. C. and under S. 325/149, I. P. C. as regards Bhola Ram and Babu Ram, and further under S. 323/149, I. P. C. for the injuries caused to Harya, Prem Chand and Raj Bal. They have been sentenced to six years R. I. on the first count (under S. 326/149, I. P. C.); three years R. I. on the second count i. e. under S. 325/149, I. P. C. and to six months R. I. on the third count respectively. Accused Indraj and Ombir have been further convicted for an offence tinder S. 148, I. P. C. and sentenced to two years R. I. Accused Prabhu Dayal, Bhagwat and Birmi have been convicted under S. 147, I. P. C. and sentenced to one years R. I. All the sentences have been ordered to run concurrently. ( 2 ) CO-ACCUSED Bundi died during the course of trial. Therefore his case abated. State has filed no appeal. ( 3 ) AGAINST the judgment and order dated 10-8 -1979 passed by the 2nd Additional District and Sessions Judge, Meerut, only the aforesaid convicted accused have filed this appeal. The judgment was delivered in S. T. No. 488 of 1977 State v. Indraj and three others. ( 4 ) THE case started on the basis of the first information report dated 6-8-1977 lodged by Nand Kishore. (PW 1) at Police Station Kithore District Meerut at 8. 45 a. m. after negotiating a distance of three miles. The incident is alleged to have taken place on the same day at 7. 30 a. m. It has been alleged that on 5-8-1977 the accused Indraj, Prabhit Dayal, Bhagwat, Bundi and Birmi had caused damage to the maize crops of the complainant for which the complainant and his family members had protested. The accused did not relish this protest and they re-acted in a very, filthy manner. However, they retreated. On 5-8-1977 at about 7. 30 a. m. the complainants father Bhola Ram (deceased), his brother Prem Chand (injured), Raj Bal (injured) Harya (injured) and Babu Ram (deceased) were going to their fields. The accused did not relish this protest and they re-acted in a very, filthy manner. However, they retreated. On 5-8-1977 at about 7. 30 a. m. the complainants father Bhola Ram (deceased), his brother Prem Chand (injured), Raj Bal (injured) Harya (injured) and Babu Ram (deceased) were going to their fields. The aforesaid accused and co-accused Om Bir, who is brother-in-law of accused Birmi, pounced upon the complainants family members, noted above, with lathi and spears. An alarm was raised, hearing which the complainant Kesha (PW 2), Nanaka, Ram Niwas and others arrived and saw the accused, belabouring the family members of the complainant. Further alarm was raised and several members of the village assembled. The accused ran away after causing injuries to the aforesaid persons. After that the injured persons were brought to the police station in Buggis. ( 5 ) ON the basis of the written report, chik and GD. entries were made. The injured were referred to the District Hospital, known as P. L. Sharma Hospital, Meerut for medical examination. ( 6 ) BABU Ram (deceased) was medically examined on 6-8-1977 at 1. 15 p. m. One punctured wound and three other injuries were caused to him. They have been noted by the learned Sessions Judge in the body of his judgment. As a result of injuries received by Babu Ram, he died on 8-8-1977. Dead body was subjected to post-mortem examination on 9-8-1977. The doctor found that the cause of death was shock and haemorrhage. The details of the injuries have been noted by the learned Addl. Sessions Judge in his judgment. ( 7 ) BHOLA Ram was medically examined on the same day at 1. 30 p. m. 0ne punctured wound and three lacerated wounds were found, as noted by the learned Addl. Sessions Judge. He also died on 11-8-77 and the dead body was subjected to post-mortem examination on 12-8-77. The details of his injuries have also been noted by the learned Addl. Sessions Judge. The cause of death was found to be the fracture of skull, intracranial haemorrhage and injuries to brain. The injuries Nos. 1 and 2, caused by lathi were responsible for his death. In the opinion of doctors the injuries were sufficient in the ordinary course of nature to cause death to Babu Ram and Bhola Ram aforesaid. Sessions Judge. The cause of death was found to be the fracture of skull, intracranial haemorrhage and injuries to brain. The injuries Nos. 1 and 2, caused by lathi were responsible for his death. In the opinion of doctors the injuries were sufficient in the ordinary course of nature to cause death to Babu Ram and Bhola Ram aforesaid. ( 8 ) RAJ Bal (PW 5) had been examined on 6-8-77 at 12. 50 p. m. One lacerated wound on the left side of chest was found. ( 9 ) HARI Singh alias Harya was examined on that day at 1 p. m. on 6-8-77. Four blunt object injuries like contusion and lacerated wounds were found on his person. Premi (PW 4) had been examined on that day at 1. 05 p. m. i. e. on 6-8-77. Two lacerated wounds were found on his person. The injuries were found fresh by doctor. ( 10 ) AFTER usual investigation the charge-sheet was laid by the prosecution. ( 11 ) OTHER aspects of the prosecution case is that Babu Rams dying declaration was recorded by an Executive Magistrate, Mr. Gyani, on 6-8-1977 at 4. 45 p. m. He had stated therein that the incident took place on that day at about 8 a. m. when he was inside his house and going to fields. The accused Indraj, Barmi, Prabhu Dayal, Bhagwat and Ombir along with others i. e. Dan, Sahai, Shiv Karan, Harnam, Harnams son Attrey and Har Swaroop were sitting at the house of Badri. Seeing them, the deponent whose maize crops had been cut, was going by another passage through the house of Sri Prakash in order to avoid the aforesaid persons. But the aforesaid persons raised their voice to catch-hold of the deponent and thus saying this, they surrounded him. Har Swaroop caused him a lathi injury first, thereafter he injured him with bricks. Om Bir had a spear and used it on the person of the deponent. Others had lathis. On the side of the deponent, apart from him, Nand Kishore (PW 1), Prem Chand (PW 4), Raj Bal (PW 5), Bhola (deceased) and Harya (injured) were there. Since the opponents were larger in number, the persons on the side of the deponent concealed themselves inside the house of Kesha. The accused reached there also. Others had lathis. On the side of the deponent, apart from him, Nand Kishore (PW 1), Prem Chand (PW 4), Raj Bal (PW 5), Bhola (deceased) and Harya (injured) were there. Since the opponents were larger in number, the persons on the side of the deponent concealed themselves inside the house of Kesha. The accused reached there also. Then the Brahmans and Tyagis of the village asked the accused to run away. Then the accused retreated. Ramesh was also amongst the assailants (Ex. Ka-10 ). ( 12 ) THE prosecution case goes further to the effect that the Investigating Officer had recorded the statement of Babu Ram under S. 161 and that too is also sought to be used as a dying declaration. Similarly the Investigating Officer had recorded the statement of Bhola Ram (deceased) under S. 161 and that has also been used by the prosecution as a dying declaration. ( 13 ) THE prosecution examined Nand Kishore (PW 1) complainant. He has unfolded the prosecution story as contained in the first information report noted above. Again he has said that a few days prior to the date of incident the accused suspected that Prem Chand had misbehaved with Ku. Bala, the grand-daughter of Bundi accused (since dead ). The accused had come to complain against this conduct of Prem Chand. Prem Chand (PW 4) denied the alle gations in presence of the accused. Bhola Ram (deceased) had reprimanded his son Prem Chand even then. Thereafter the accused left but on the third day they convened a Panchayat and there they insisted that they should be given the custody of Prem Chand. The complainant side declined this request and the Panchayat ended abruptly. Thereafter one day prior to the incident the accused intentionally damaged the maize crops of the complainant and thus the marpit took place. A feable attempt was made to explain the injuries of the accused by saying that the accused themselves caused injuries to some of them. ( 14 ) KESHA (PW 2) is the person in whose house the aggrieved complainant side wanted to take shelter and they did take shelter there. The accused tried to break open chain, but this witness asked them to go away. Then only they retreated. Apart this incident, he had also deposed about the manner as to how the accused assaulted the prosecution side. The accused tried to break open chain, but this witness asked them to go away. Then only they retreated. Apart this incident, he had also deposed about the manner as to how the accused assaulted the prosecution side. Om Bir and Indraj accused had spears. Other accused had lathis. He named only six accused, namely, Om Bir, Indraj, Bhagwat, Birmi, Prabhu and Bundi (since deceased) and has photographically described the prosecution version. ( 15 ) DINESH (PW 3) has his house adjacent to the house of Kesha (PW 2) in the east. After hearing the alarm he came near the Chabutra of Maharaj Singh. There he saw the accused assaulting the prosecution side. Om Bir and Indraj had spears. Nand Kishore (PW 1) also arrived after hearing the alarm and saw the incident. The injured persons took shelter at the house of Kesha (PW 2 ). His brother Nanak put the chain from outside and thus enclosed the injured persons. The accused arrived there also and were insisting that the victims should be given out but Kesha, Nanak and others declined. Then the accused ran away. ( 16 ) PREM Chand (PW 4) is the brother of Nand Kishore (PW 1) and son of Bhola Ram (deceased ). He has also given an eye-witness account of the incident. Additionally he has said that a false allegation of mis-behaviour by him against Km. Bala, daughter of Dan Sahai (grant daughter of Bundi accused, since dead) was made against him. The accused came to his house to complain about this conduct of the witness. Bhola Ram after enquiry from this witness re primanded him and also said that if he repeated such an act, he would be thrown out of his house. Thereafter the accused left. They convened a Pancha yat on the following day but this witness was not allowed to go in the Panchayat by Bhola Ram. Thereafter the accused damaged the maize crops of the complainant and then the marpit took place on the following day. ( 17 ) RAJ Bal (PW 5) is another injured witness. He is the son of Bhola Ram (deceased ). He too has given an eye-witness account. ( 18 ) OTHER evidence is formal in nature. ( 19 ) DR. Thereafter the accused damaged the maize crops of the complainant and then the marpit took place on the following day. ( 17 ) RAJ Bal (PW 5) is another injured witness. He is the son of Bhola Ram (deceased ). He too has given an eye-witness account. ( 18 ) OTHER evidence is formal in nature. ( 19 ) DR. A. S. N. Singh (PW 11) had medically examined Raj Bal Singh, Prem Chand, Babu Ram, Bhola Ram and has proved their injury reports. ( 20 ) P. R. Verma (PW 12) is the Investigating Officer. He has proved the investigation process from beginning till end. He has recovered blood from the spot. He also took blood stained clothes of the injured persons. He further says that he recorded the dying declaration of the injured witnesses like Babu Ram and Bhola Ram. ( 21 ) DR. O. P. Sharma (PW 13) has proved the post-mortem report of Babu Ram and Dr. P. C. Dixit (PW 14) has proved the post-mortem report of Bhola Ram. ( 22 ) THE accused in their statements under S. 313, Cr. P. C. have basically admitted the incident. Indraj denies that Om Bir is the brother-in-law (sala) of Birmi accused but he admits that he resided in that village from some months prior to the incident and he had taken the grove of somebody in the village on rent. He denied the incident of Km. Bala and Panchayat and additionally said that on account of enmity he has been falsely implicated. ( 23 ) ). Prabhu Dayal has also made a similar statement. ( 24 ) BHAGWAT accused admits that Om Bir used to reside in this village. Other allegations have been denied by him, but additionally he has said that on the date of incident he was returning taking Biris from the shop of Sagar Singh and reached near the house of Dan Sahai. The house of Bhola (deceased) is also nearby. Seeing him Bhola, Babu Ram, Prem Chand, Nand Kishore, Raj Bal and Harya started assaulting him. He tried to run away and reached near the Ahata of Maharaj Singh and raised an alarm. Hearing it Harnam, Pratap and Indra Raj (accused) came to his rescue. Other persons also arrived there. Pratap and Harnam were assaulted by Bhola and others. Seeing him Bhola, Babu Ram, Prem Chand, Nand Kishore, Raj Bal and Harya started assaulting him. He tried to run away and reached near the Ahata of Maharaj Singh and raised an alarm. Hearing it Harnam, Pratap and Indra Raj (accused) came to his rescue. Other persons also arrived there. Pratap and Harnam were assaulted by Bhola and others. On account of party-bandi in the village there was enmity between them and that is why the offenders had assaulted him. He did nothing in that incident. He lodged report at Police Station Kithore and was later on medically examined. ( 25 ) AT this very stage, I wish to refer to the report lodged by this accused at Police Station Kithore on 6-8-77 at 8. 30 a. m. The incident according to him took place at 7. 30 a. m. on that day. Amongst the accused named by him are Bhola, Babu (both deceased), Prem Chand (PW 4), Nand Kishore (PW 1), Raj Bal (PW 5) and Harya. The weapons assigned are spear to Nand Kishore (PW 1) and lathis to others. Further he says that Pratap and Harnam had also received injuries. On hearing his alarm he arrived on the spot with persons including Indraj accused, Desh Raj, Ashfaq and Phool Singh who effectively intervened and saved the life of the complainant and others. He has also relied upon his injury report. He was examined on that day at 12. 35 p. m. by Dr. A. S. N. Singh, who found one lacerated wound 6. 5 cm x 1 cm a scalp deep; one punctured wound 1 cm x 0. 5 cm right upper arm inner side x depth 2 cm margins were clear cut. The third injury was lacerated wound 2. 5 cm x 5 cm x bone deep inner side of left hand. Injuries were fresh. Injury No. 2 was caused by a pointed weapon like spear. ( 26 ) ACCUSED Bundi (since dead) has denied the allegations against him and said that on account of village parti-politics and party-bandi, he has been falsely implicated. He does not know whether Om Bir accused is brother-in-law of Birmi accused or not or he resides at the house of Birmi. ( 27 ) ACCUSED Birmi has denied all the allegations made against him. He does not know whether Om Bir accused is brother-in-law of Birmi accused or not or he resides at the house of Birmi. ( 27 ) ACCUSED Birmi has denied all the allegations made against him. ( 28 ) AT this very stage the defence has added a version that Om Bir had received injuries. He was examined about 7 or 8 days after the incident and had healed scabbed wound 3. 5 cm x 0. 5 cm long on left side neck scar present. ( 29 ) BURMI had lacerated wound and was examined about 7 or 10 days after the incident. He had lacerated scabbed wound 3. 5 cm x 0. 5 cm on right upper arm outer side in middle. Indraj had no mark of injury. Bundi deceased had also no mark of injury. So was the case of Prabhu Dayal. ( 30 ) BOTH the accused did not take the plea of right of private defence in their statements under Section 313, Cr. P. C. or even during the course of cross examination of the P. Ws. but it appears that even before the learned lower court and in this court as well, plea of right of private defence has been taken and argued. ( 31 ) AFTER analysing the entire evidence and circumstances on the record, the learned lower court convicted the accused and sentenced them as noted above. ( 32 ) FEELING aggrieved, the accused have ap proached this court. I have heard the learned counsel for the parties at stretch and gone through the record. I find that there is absolutely no force in this appeal and it deserves to be dismissed. ( 33 ) IN this case the prosecution relied upon three types of evidence :1 (a) Dying declaration made by Babu Rain recorded by M. N. Sharma (P. W. 9) Executive Magistrate, Meerut. (b) Dying declarations of the deceased Babu Ram and Bhola Ram recorded under Section 161, Cr. P. C. by the Investigating Officer. (Ex. Ka-16 and Ka-17) 2. Eye witness account rendered by Nand Kishore (P. W. 1), Keseha (P. W. 2) Dinesh (P. W. 3) Prem Chand (P. W. 4) and Raj Bal (P. W. 5 ). 3. Admissions made by the accused in their state ments as well as the report lodged by the accused Bhagwat. (Ex. Ka-16 and Ka-17) 2. Eye witness account rendered by Nand Kishore (P. W. 1), Keseha (P. W. 2) Dinesh (P. W. 3) Prem Chand (P. W. 4) and Raj Bal (P. W. 5 ). 3. Admissions made by the accused in their state ments as well as the report lodged by the accused Bhagwat. This last aforesaid point is not the piller upon which the prosecution case rests rather prosecution wants simply to say that apart form its own strength it derives collateral and lateral support from the defence evidence. ( 34 ) NOW I proceed to examine the evidence of dying declaration recorded by Sri M. N. Sharma (P. W. 9 ). In his statement Sri Sharma has said that he had recorded the statement in presence of Dr. R. L. Kapoor, who had certified that the deponent was in a sufficiently healthy mental state and capable of making statement. Nay he further says that he himself put some questions to the declarant and satisfied himself that he was in a fit state of mind to give his statement. Then he recorded the statement at 4. 50 p. m. one 6-8-1977 in the P. L. Sharma Hospital. Thereafter he completed the job of writing the statement of the declarant as per his version. He wrote only what was told to him by the declarant. In the cross-examination all these statements have not been challenged, rather a further fortifying statement was recorded when the witness said that he had put only few questions in order to know the mental state of the declarant and asked him to tell a as to how he had received injuries. Thereafter the deponent made the statement volun tarily himself and he did not put any additional question to him. This way it is established that all the requisite formalities about recording the declaration were observe by the Executive Magistrate and whatever he has written is the true version given by the declarant himself. ( 35 ) IN the leading case Khushal Rao v. State of Bombay, 1958 AWR 38 : AIR 1958 SC 22 (SC) the Supreme Court has observed that there is no absolute rule of law, or even a rule of prudence, which has ripened into a rule of law that dying declaration unless corroborated by another independent evidence, is not to be acted upon, and made the basis of conviction. It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sols basis of conviction unless it is corroborated. . . . . . . It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence. . . . . . . . A dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. A dying declaration recorded by a competent Magistrate in the proper manner, that is in the form of questions and answers naturally stands on a much higher footing. . . . . . . . . . . . . . . . . In order to test the reliability of a dying declaration the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated, had not been imparied at the time he was making the statement, by circumstances beyond his control;. . . . . . . . . . The necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the court, in a given case, has come to the conclusion that the particular dying declaration was not free from infirmities as may be disclosed in evidence in that case. . . . . . Dying declaration has to be scrutinised very closely. But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death of the assailants of the victim, there is no question of further corroboration. " ( 36 ) AGAIN in Godhu v. State of Rajasthan 1974 Cri LJ 1500 : AIR 1974 SC 2188 (SC), the Supreme Court has observed where a part of dying declaration is not reliable its separable part can still be relied upon provided it is not indissolubly linked with the other part and corroborated in material particulars. " ( 36 ) AGAIN in Godhu v. State of Rajasthan 1974 Cri LJ 1500 : AIR 1974 SC 2188 (SC), the Supreme Court has observed where a part of dying declaration is not reliable its separable part can still be relied upon provided it is not indissolubly linked with the other part and corroborated in material particulars. ( 37 ) IN Arunachalam v. P. S. B. Setharatnam 1979 Cri LJ 875 : AIR 1979 SC 1284 (SC), the Supreme Court held that simply because a dying declaration contains more details than contained in the first information report lodged by him, it Will make no substantial difference and it can be relied upon. ( 38 ) IN Tahal Singh v. State of Punjab 1979 Cri LJ 1031 : AIR 1979 SC 1264 (SC), it was observed that a dying declaration need not be made in the expecta tion of death. Even when it contains wealth of details, it cannot be necessarily lead to an inference that the statement is a fabricated one. ( 39 ) IN Som Nath v. State of Haryana, 1980 Cri LJ 925 : AIR 1980 SC 1226 (SC ). The Supreme Court observed that :"in the instant case the three dying declarations corroborated by other circumstances are sufficient to bring home the offence. They are the groaning utterances of a dying women in the grip of deadful agony which cannot be judged by the standards of fullness of particulars which witnesses may give in other situations. To discredit such dying declarations for shortfalls here or there even in many, places is unrealistic"unnatural and unconscriousable, if basi cally there is credibility. " ( 40 ) IN State of U. P. v. Suresh 1982 Cri LJ 850 : AIR 1982 SC 1076 : 1982 All LJ 653 (SC); even in coherent dying declaration was relied upon. ( 41 ) IN view of this legal position we have to see as to whether this dying declaration recorded by Sri Sharma, Executive Magistrate inspires confidence or not. It has not been suggested to Sri Sharma that the version which was recorded by him was the result of tutoring by the friends, relatives and benefactors of declarant. The incident in this case took place on 6-8-1977 at about 8 a. m. Babu Ram was medically examined on that day at 13. It has not been suggested to Sri Sharma that the version which was recorded by him was the result of tutoring by the friends, relatives and benefactors of declarant. The incident in this case took place on 6-8-1977 at about 8 a. m. Babu Ram was medically examined on that day at 13. 15 p. m. The only fatal injuries was injury No. 1 which was a punctured wound 2. 5 cm x 0. 5 cm. x depth not probed left side abdomen 2 cm away from umblicus at 3 O clock position. The post mortem shows that his larnyx, trachea and Bronchi were in tact. ( 42 ) THE small intestine and its contents contained faccal matter mixed with blood. Thus there was no medical informity with Babu Ram in making state ment on the same day at 4. 10 p. m. So it cannot be said that Babu Ram while making statement was not in a perfectly sound mental condition capable of making the statement. Sri Amar Saran, the learned Advocate for the accused appellant has not challenged the correctness and reliability of this dying declaration. ( 43 ) THE learned Addl. Sessions Judge has refused to place reliance upon this dying declaration by choosing a very easy path. He has culled out certain minor titbits here and there and has refused to place reliance upon it. The learned defence counsel did not support this approach of the learned lower court. I myself find that the learned lower court has not properly scanned the evidence and circumstances on the record before rejecting the dying declaration. ( 44 ) THE site plan shows that the Investigating Officer recovered blood from the place a and b. a is on the passage. b is the house of Kesha (P. W. 2), where the injured persons took shelter to save their lives. For reaching from place a to b one has to pass through the Chabutra of Maharaj Singh. The distance is about twenty feet fact. The marpit initially started at the passage and after the marpit started, the injured persons rushed towards the east in the house of Kesha. Hence the place of incident starts from the passage runs via the Chabutra of Maharaj Singh and ends near the house of Kesha according to the first information report. The distance is about twenty feet fact. The marpit initially started at the passage and after the marpit started, the injured persons rushed towards the east in the house of Kesha. Hence the place of incident starts from the passage runs via the Chabutra of Maharaj Singh and ends near the house of Kesha according to the first information report. In the first information report it has been clearly stated that the injured persons were passing via. the passage when they were assaulted and then they reached in the house of Kesha (P. W. 2) and Nanka son of Vishambhar. So the place of occurrence as given in the first information report and the one given in the dying declaration is fully established, and this dying declaration finds corroboration from the first information report also apart from the statements of Prosecution Witnesses in the lower court. ( 45 ) ANOTHER point of similarity is the weapon. The two types of weapons have been alleged by the complainant in the first information report, namely, lathis and spears. In the dying declaration also these two types of weapons have been mentioned. Addi tionally it has been alleged that Om Vir accused used the spear. There is a minor addition of use of bricks by Har Swarup (non-accused ). This probability cannot be ruled out that during the incident some bricks might have been thrown as it is not uncommon. Even if it is not accepted, the use of this additional fact does not militate against the reliability of the dying declaration. ( 46 ) ALL the five accused, who stood trial, namely Indraj, Burmi, Prabhu Dayal, Bhagwat, Har Swarup and Om Vir have been mentioned in the dying declaration. Bundis name is missing. Fortunately he is dead. Therefore in the first information report and the dying declaration we cannot find any Himalyan difference in the array of accused. As observed by the Supreme Court such differences are bound to occur. After all the injuries received by the declarant had some impact, therefore the omission of Bundi does not make any difference. So it appears that as regards the appellants, the declarant Babu Ram has given a full description. ( 47 ) OF course he has added five other persons in the list of his assailants, namely, Dan Sahai, Shiv Karan, Pratap, Harnam and Attrey. So it appears that as regards the appellants, the declarant Babu Ram has given a full description. ( 47 ) OF course he has added five other persons in the list of his assailants, namely, Dan Sahai, Shiv Karan, Pratap, Harnam and Attrey. This is an addition, no doubt, but its benefit will go to these persons and not the accused. These persons may be there. Some of them have received injuries also. The incident took place in the village. The party-bandi was in the village. It is a broad day light incident. After hearing the alarm the aforesaid persons arrived there and they have been mentioned by the declarant. It will not be a vital difference in the prosecution case nor it will make any difference in the truthfulness of the dying declaration. ( 48 ) HE mentions that along with him Nand Kishore (P. W. 1) Prem Chand (P. W. 4), Raj Bal (P. W. 5), Bhala Ram (deceased) and Hariya were there. So on this point also his statement finds corroboration from the first information report as well as other occular evidence on the record, apart from the basic similarity with the defence case as well. ( 49 ) ANOTHER basic fact is that the injured took shelter in the house of Kesha (P. W. 2) and the accused arrived there and tried to break open the chain but the Brahmins and Tyagis of the village reprimanded them and then only they retreated. Kesha (P. W. 2) son of Vishambhar is a Brahman. Hence this important leg of the prosecution case finds adequate reporting in the dying declaration of Babu Ram. ( 50 ) THIS way this dying declaration contains everything upon which the prosecution has built up its citadel. Few insignificant facts had been added, no doubt as noted above but they do not make any significant dent in the prosecution case. The learned lower court has tried to pick up certain insignificant words and contradictions and on this basis he has ignored this dying declaration a very important piece of evidence. That was not proper. It showed a zeal, over running discretion a serious error on the part of the learned lower court. Ordinarily such discrepancies and small improbabilities in the evidence of witnesses are of no consequence. . That was not proper. It showed a zeal, over running discretion a serious error on the part of the learned lower court. Ordinarily such discrepancies and small improbabilities in the evidence of witnesses are of no consequence. . ( 51 ) AFTER a critical analysis I find that this dying declaration has a ring of truth, colour of consistency and a sense of straight forwardness as a result of which it inspires confidence. ( 52 ) IT is a broad day light incident. Assailants were known to the declarant from before. They used lathis and spares. Thus they came in a very close contact with the declarant and thus unwitingly helped him in unmistakably identifying them correctly. Therefore it cannot be said that this deponent Babu Ram had no opportunity to correctly identify his assailants. Not only this as said earlier, the marpit which started at the passage continued up to the Chabutra of Maharaj Singh and ran up to the house of Kesha. (P. W. 2 ). So this series of incidents provided ample opportunity to Babu Ram to cor rectly watch the incident and the performance of the individual accused. The result is that there was absolutely no infirmity or incapability coming in the way of Babu Ram in seeing the performance of the accused. From this process of evaluation of evidence also I find that the dying declaration of Babu Ram recorded by the Executive Magistrate is a reliable piece of evidence and the court can act upon it for convicting the accused. ( 53 ) BABU Rams statement was also recorded by the Investigating, Officer in which he has given the same version I find in the first report. In para 8 of his statement Sri P. R. Verma (P. W. 12) has stated that there when he recorded the statements of Babu Ram and Bhola Ram, he did not apprehend that they would die so soon. Their condition was not critical. However, their condition was not very good. He did not record their statements as dying declaration, that is why he did not obtain the signatures of any witness upon their statements. This way he simply recorded their statements under Section 161, Cr. Their condition was not critical. However, their condition was not very good. He did not record their statements as dying declaration, that is why he did not obtain the signatures of any witness upon their statements. This way he simply recorded their statements under Section 161, Cr. P. C. In the cross-examination no significant question has been put regarding the mental state of the declarants Babu Ram and Bhola Ram, nor it was challenged that he recorded their statements correctly. Therefore, I find that Sri Vermas statement, that Babu Ram and Bhola Rams statements were correctly recorded by him cannot be easily brushed aside and they can be used as reliable pieces of evidence (Ex. Ka 16 and Ka 17 ). ( 54 ) IN Munna Raja v. State of M. P. 1976 Cr LJ 1718 : AIR 1976 SC 2199 the Honble Supreme Court has observed where after making statement before the police the victim succumbed to his injuries, the statement can be treated as a dying declaration and is admissible under Section 32 (1) of the Evidence Act. ( 55 ) IN Jaswant Singh v. Delhi Administration 1978 Cr LJ 1869 : AIR 1979 SC 190 (SC) the dying declaration recorded by the I. O. was accepted and acted upon. Hence the statement recorded by the I. O. under Section 161, Cr. P. C. can be accepted provided it inspires confidence. ( 56 ) IN the present case, I find that these two documents, namely the statements of Babu Ram and Bhola Ram referred to above, recorded by the Investigating Officer can be accepted as good evidence. Of course, I do not base my judgment upon these statements. Even if these statements are not there, it will make no difference to the present case. I am simply mentioning it that these two documents (Exs. Ka-16 and Ka-17) find corroboration from the first information report and also the statement of Babu Ram before the Magistrate (Ex. Ka 10 ). Hence these statements have added consistency to the prosecution case and they can be safely relied upon. This way, I find that the prosecution has succeeded in proving its case on the basis of dying declaration (Ex. Ka 10, Ka-16 and Ka-17) and on this basis alone the prosecution can succeed in bringing home the charges to the accused. Hence these statements have added consistency to the prosecution case and they can be safely relied upon. This way, I find that the prosecution has succeeded in proving its case on the basis of dying declaration (Ex. Ka 10, Ka-16 and Ka-17) and on this basis alone the prosecution can succeed in bringing home the charges to the accused. ( 57 ) NOW I proceed to examine the second pillar of the prosecution case i. e. eye witness account rendered by Nand Kishore (P. W. 1) Kesha (P. W. 2), Dinesh (P. W. 3), Prem Chand (P. W. 4) and Raj Bal (P. W. 5 ). ( 58 ) NAND Kishore (P. W. 1) is the maker of the first information report. His presence is not disputed. Even in the first information report lodged by Bhagwat accused, he has been arrayed as an accused. He took injured persons to the police station and in the G. D. his presence is entered. So his evidence is very important in this case. He is the son of Bhola Ram (deceased) and nephew of Babu Ram (deceased ). ( 59 ) AFTER hearing the alarm raised by his collaterals it was but natural for him to rush to the spot. Not only this, even in the dying declaration of Babu Ram and the dying declaration of Bhola Ram his presence has been accepted. Added with all the epithets and qualifications, Nand Kishore comes to the court as prosecution witness. He has given a photograpic description of the occurrence from the very beginning. He describes the date, time and place of occurrence, the factum of injuries of injured persons, apart from providing motive for the crime. Additionally, he has said that there was a false allegation made by Bundi, accused (deceased) that Prem Chand (P. W. 4) who is the brother of this witness, had misbehaved Km. Bala, grand daughter of Bundi, and for that a Panchayat was held. Accused were not satisfied. They wanted to take revenge. Of course this motive relating to Bala affairs does not find place in F. I. R. The witness has given a very reliable and natural reply in para 9 and said that since it involved the prestige of both the families, therefore, he applied his discretion and chose to omit this matter. They wanted to take revenge. Of course this motive relating to Bala affairs does not find place in F. I. R. The witness has given a very reliable and natural reply in para 9 and said that since it involved the prestige of both the families, therefore, he applied his discretion and chose to omit this matter. It was urged by the learned counsel for the appellant that he could have caused greater damage to the reputation of the accused only by mentioning the Bala episode in the F. I. R. and this witness could not have avoided that, I do not agree. ( 60 ) THE statement of Nand Kishore is very important. He says that his side was totally without any arms. He also admits the presence of Harnam, Dan Sahai, Pratap, Shiv Karan, Attrey, Lakhan etc. but he does not say that they had any weapon in their hands. Perhaps it was on account of this fact Babu Ram in his dying declaration (Ex. Ka 10) did mention the presence of these persons but he did not assign any major role to them. This way this apparent inconsis tence is also resolved and explained by the statement of Nand Kishore. Of course, he does not give a good reason or explanation for the injuries of the accused, although he admits in para 17 that Bhagwat and Om Vir accused had received injuries. In respect of other accused he does not know. He says that Bhagwat and Om Vir might have received injuries from the weapons used by other accused. Apparently this explanation does not sound correct but I shall deal with this part of the prosecution case at another place. Here I proceed with this assumption that the explanation for the injuries of the accused given by Nand Kishore does not find very reasonable. ( 61 ) IT was suggested to him in para 19 that his party was aggressor and he himself had a spear. He denies it. He also denies that the injuries received on the prosecution side were caused by the accused in exercise of private defence. In para 23 he says that marpit took place in the passage and in between the passage and house of Kesha. To him also very insignificant contradictions were put but he denies them. He denies it. He also denies that the injuries received on the prosecution side were caused by the accused in exercise of private defence. In para 23 he says that marpit took place in the passage and in between the passage and house of Kesha. To him also very insignificant contradictions were put but he denies them. I find that after ignoring minor and trivial inconsistencies, the statement of Nand Kishore can be accepted. It has found corroboration from other evidence on the record. I accept the statement of Nand Kishore as correct, and concur with the conclusion drawn by the learned trial court. ( 62 ) PREM Chand (P. W. 4) and Raj Bal (P. W. 5) come next and both of them are injured persons. Their presence is also admitted by the accused. Their names find place in the first information report lodged by Bhagwa accused so they are also very reliable and natural witnesses. They have given the evidence on the point of motive and also date, time and place of occurrence. Their testimony also suffers from the weakness that they had not given adequate explana tion for the injuries received by the accused. Baring this defect which is not germane to their testimony, I find no other infirmity in their statements. So I agree with the learned lower court that by enlarge they have given reliable testimonies and they should be accepted as truthful witnesses. ( 63 ) KESHA is (P. W. 2), his presence has not been seriously challenged in the crass-examination. It was his house, the victim took shelter. It was suggested to him that he is giving a tutored version on the involvement of the accused and the weapons used, Indraj and Om Vir had spears and others had lathis. His testimony deserves to be accepted. He has clearly said that the accused were chasing the injured persons and came up to his house in which they have taken shelter. The accused were insisting upon him to open the door and for removing the chain for their entry inside the house, but he along with his brother put his thumb and declined their request. Then only the accused retreated. He has described as to how the accused caused injuries. The accused were insisting upon him to open the door and for removing the chain for their entry inside the house, but he along with his brother put his thumb and declined their request. Then only the accused retreated. He has described as to how the accused caused injuries. He had frankly admitted the existence of the injuries on the persons of Om Vir and Bhagwat, so I find that Kesha is equally reliable witness. He has supported the prosecution case in all material particulars. ( 64 ) DINESH (P. W. 3) has his house abutting the house of Kesha, so his presence also on the spot was natural when he says that he saw the incident with his own eyes and gives description of the same. His presence at the spot has not been challenged. There is no serious enmity between him and the accused. There is no reason why he will implicate them falsely. He honestly admitted that Nand Kishore did not scribe the first information report in his presence but he has consistently deposed that Nand Kishore took the injured persons towards the hospital. He denies that Nanak and Kesha are his relations. Thus I find that there is no reason to discard the testimony of this witness and the learned lower court was justified in accepting his testimony. ( 65 ) THIS way I find that the prosecution has succeeded in proving this case beyond reasonable doubt even on the basis of occular testimony consisting of We witnesses noted above. ( 66 ) NOW the third plank, of the prosecution case is that even the defence persons corroborates the prose cution case. I may summarily refer to the defence version which supports the prosecution case. The first information report lodged by Bhagwat accused men tions the date and time of occurrence as 6/08/1977 at 7. 30 a. m. Amongst the persons arrayed as accused are Bhola Ram and Babu Ram (deceased ). Prem Chand (P. W. 4), Nand Kishore (P. W. 1) Raj Bal (P. W. 5) and Haria (injured persons ). His injury was examined on 6-8-1977 at 1 p. m. The persons who received injuries on the side of the present accused are pratap and Harnam apart from Bhagwat. Amongst the persons present after hearing the alarm were Indraj (accused), Deshraj, Ashafaq and others. His injury was examined on 6-8-1977 at 1 p. m. The persons who received injuries on the side of the present accused are pratap and Harnam apart from Bhagwat. Amongst the persons present after hearing the alarm were Indraj (accused), Deshraj, Ashafaq and others. ( 67 ) OM Vir accused is said to have received injuries although he was examined after a weak. His injuries are quite insignificant, so is the case of accused Burmi, Indraj, Budni and Prabhu. Of course Bhagwat accused had a punctured wound caused by spear in his arm. His other injuries are also very insignificant ones. Pratap and Harnam are also said to have received insignificant injuries. They were examined after nearly a week of the incident. So broad speactrum of the defence version is virtually dissimilar to the case of the prosecution. ( 68 ) APART from it, the suggestion made to Nand Kishore (P. W. 1) in para 19 also contains implied admission of the presence of the accused and happening of the incident. Kesha (P. W. 2) and Dinesh (P. W. 3) got similar suggestion Prem Chand (P. W. 4) and Raj Bal (P. W. 5) are injured witnesses, both of whom are natural witnesses too. Defence suggestions are in the nature of admission of incident. Thus from the defence version also the prosecution case derives intrinsic support. Again I reiterate that on this plank merely the prosecution case is not based. ( 69 ) NOW the learned counsel has urged that in this case the marpit has been admitted. The presence of virtually all the witnesses and injured persons on both the sides is also not seriously disputed. Then the question arises as to whether the accused were the aggressors and what would be the effect of non -explanation of the injuries received by the accused. ( 70 ) ON the side of the accused one Pratap was medically examined on 12-8-1977. One traumatic swelling on the right side of neck and one contusion 4 cm x 2 cm on the front of left shoulder were found, apart from a complaint of pain in the back of chest without any external mark of injury visible (Ex. Kha-6 ). ( 71 ) HARNAM was examined on 11-8-1977. One traumatic swelling on the right side of neck and one contusion 4 cm x 2 cm on the front of left shoulder were found, apart from a complaint of pain in the back of chest without any external mark of injury visible (Ex. Kha-6 ). ( 71 ) HARNAM was examined on 11-8-1977. One contusion 7 cm x 2 cm on the right clavicular region outer front (Black), and one traumatic swelling on the left side back of neck were found. They were about five days old (Ex. Kha-7 ). Apparently these injuries are of very insignificant nature. They could be even manufactured or self-suffered. They can be termed as very trivial in nature. ( 72 ) OF course Bhagwat had one punctured wound 1 cm x 0. 5 cm on right upper arm and one lacerated wound 6 cm x 1 cm x scalp deep right side head 9 cm above right ear. These injuries can give prima facie a look of seriousness from outside but a closer scrutiny will show that these are also not serious in nature. They do not appear to have caused any damage to the vital part of the body. 73a. In this back ground I have to see the legal position. The learned counsel for the appellant has cited Lakshmi Singh v. State of Bihar, AIR 1976 SC 2263 : 1976 Cri LJ 1736. In para 2 of the judgment their lordships of the Supreme Court found that the prosecution had not come out with true version of the case. Some of the accused and the victims on the prosecution side were members of the same family, but others, namely, Jagdhari Singh, Lakshmi Singh, Ram Prasad Sah and Chhathu Singh had no concern or connection with other set of accused. In fact this second set was inimical with P. Ws. 1 and 2 and it was found that the accused had been implicated at the behest of these P. Ws. who insisted for the implication same of the accused i. e. their enemies. In fact this second set was inimical with P. Ws. 1 and 2 and it was found that the accused had been implicated at the behest of these P. Ws. who insisted for the implication same of the accused i. e. their enemies. ( 73 ) IN para 3 at page 2268 their Lordships found that the second set of accused headed by Jagdhari had absolutely no motive and no reason and no concern with the deceased or their relations and there was absolutely no earthly reason why they should have made a common cause with the first set of accused, namely Ram Sagar and Darshrath, over what was a purely domestic matter between Darshrath Singh and first set of accused. Again their lordship found the insistence of P. Ws. against second set of accused headed by Jagdhari Singh, and they must have made it a condition precedent to depose in favour of the prosecution or support the case only if Desai Singh would agree to implicate the appellant Jagdhari Singh and others and to assign them vital roles in the drama staged so that the witnesses could get the best possible opportunity to wreak vengeance on their enemies. ( 74 ) ACCUSED Dashrath Singh was examined on the same day by Dr. S. P. Jaiswal, who had examined Brahmdeo deceased. One bruise and punctured wounds were found. According to doctor injury No. 1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other injuries were also serious injuries which had been inflicted by a sharp-cutting weapon. The Honble Court further found that the origin and genesis of the occurrence had been deliberately suppressed, which lead to the irresistible conclusion that the prosecution had not come out with a true version of the occurrence. ( 75 ) ACCUSED Mohar Rai had sustained as many as 13 injuries and Bharat Rai had 14 injuries. The Honble Court further found that the origin and genesis of the occurrence had been deliberately suppressed, which lead to the irresistible conclusion that the prosecution had not come out with a true version of the occurrence. ( 75 ) ACCUSED Mohar Rai had sustained as many as 13 injuries and Bharat Rai had 14 injuries. Reference was made to the case of State of Gujarat v. Bai Fatima AIR 1975 SC 1478 : 1975 Cri LJ 1079 and in this context the following observations were made :"in a situation life this when the prosecution fails to explain the injuries on the person of an accused depending on the facts of each case, any of the three results may follow : (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. (2) It makes the prosecution version of the occur rence doubtful and the charge against the accused cannot be held to have been proved beyond reason able doubt. (3) It does not affect the prosecution case at all. The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occur rence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case. "it seems tous that in a murder case the non- explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences : (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. (2) That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most materials point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, a it must be, that the appellant Dasrath Singh received serious injuries, which have not been explained by the prosecution, then it will be difficult for the court to rely on the evidence of P. Ws. 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or informity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima, Criminal Appeal No. 67 of 1971 decided on 19/03/1975 : (Reported in AIR 1975 SC 1478 : 1975 Cri LJ 1079) there may be cases-where the non-examination of the injuries by the prosecution may not affect the prosecution case. This principal would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it far out weighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises". The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises". ( 76 ) APART from it, in para 12 of the said ruling it was found that the accused Dasrath had come out with the definite case that prosecution party had entered the plantain orchards of Ramsagar Singh and Dasrath Singh and were trying to pluck plantain leaves and plants on which he protested and was assaulted and consequently the deceased too were assaulted in self-defence. The I. O. also found 100 plantain trees in the orchards of Dasrath Singh and further found that leaves of the plantain plants had been cut out of six plants of the western side and four plants of the eastern side probabilities the defence version. ( 77 ) ANOTHER important circumstance was the omission on the part of the prosecution to send the blood stained earth found at the place of occurrence for chemical examination which could have fixed the situs of the assault. ( 78 ) IN para 14 it was found that there was only one solitary injury on the person of the deceased Chulhai Singh and the lathi injury was totally absent on his person which made the prosecution case doubtful, because the prosecution could not explain affirma tively as to how no lathi injuries were caused to this deceased although allegations were profusely made against the accused. It was further found in para 14 that so far as the deceased Chulhai Singh was concerned, the ocular evidence was totally incon sistent with the medical evidence with respect to the assault by Chhathu Singh, and Ram Prasad Sah. The Honble Court concluded that if this matter is false, there is no guarantee that the other assault deposed to by the eye-witnesses was also not false. ( 79 ) IN para 16 the Honble Court gave a cate gorical finding that the genesis and the origin of the present occurrence appears to be shrouded in deep mystery. Not only this, it was also found that the justification for the start of marpit as given by the prosecution was not reliable. Taking all these factors into consideration the Honble Court found that the entire prosecution case had colapsed and the funda mental part of it had to be disbelieved. Not only this, it was also found that the justification for the start of marpit as given by the prosecution was not reliable. Taking all these factors into consideration the Honble Court found that the entire prosecution case had colapsed and the funda mental part of it had to be disbelieved. It was not possible to disengage the truth from falsehood, to sift the grain from the chaff and the case against the appellants was not proved beyond reasonable doubt. ( 80 ) A narration of these facts will lead me to conclude that the prosecution case was as faulty as a sieve with multiple wholes therein. Accordingly the same could be believed. It will be unfair to say that the case had resulted in acquittal simply because the injuries of the accused had not been properly explained. The other conclusion is equally emphatic that simply because the injuries of the accused are not adequately explained, the prosecution is bound to fail. It depends upon the facts of each case concerned. ( 81 ) IN Mitter Sen v. The State of U. P. , AIR 1976 SC 1156 : 1976 Cri LJ 857, apart from the failure to explain the injuries of the accused the controversy between the parties was as to where the incident took place, whether in front of the house of Rabhubar Dayal or Shyam Lal or in Jawahar Chauk or in what manner. ( 82 ) IN para 4 it was found that the participation of Chiranji Lal, Hazari Lal and Prem Shankar appeared to be doubtful. A very important fact that was found in para 6 was that the appellants had come to the Chabutara of Rabhubar Dayal and Shyam Lal empty handed. Even according to the prosecution they did not carry with them any weapons, not even lathis or dandas. Chandra Prakash accused had undoubtedly a knife but he was not brandishing it. This way it was established in that case that the genesis of marpit as well as place of occurrence had not been proved beyond doubt. The presence of some of the accused empty handed also added force to the argument on their behalf that the accused had no aggresive designs so this ruling also does not help the accused. This way it was established in that case that the genesis of marpit as well as place of occurrence had not been proved beyond doubt. The presence of some of the accused empty handed also added force to the argument on their behalf that the accused had no aggresive designs so this ruling also does not help the accused. ( 83 ) AS against in Purshottam Lal Ji Baghela v. State of Gujarat, 1972 Cri LJ 2221, it was found that there was communal tension and stone-pelting was done by both the sides. In this way the accused fired gun shot causing death to the deceased. There was no evidence to show that before firing the first gun shot anybody on the side of the accused had sustained any injury as a result of pelting of stone by the other group. The Honble Court found that the accused had no reasonable apprehension of death or grievance put to him or to those protecting. Consequently his plea of right of self defence was rejected by Honble Court. ( 84 ) IN Onkar Nath v. State of U. P. , 1974 Cri LJ 1015 : AIR 1974 SC 1550 , the Honble Court observed that :"the entire prosecution case cannot be thrown over bold simply because the prosecution witnesses do not explain the injuries on the person of the accused. The question as to what is the effect of non-explanation is a question of fact and not a question of law. " ( 85 ) IN Harvendra Singh v. State of U. P. , 1979 Cri LJ 1494 (MP), it was observed that the failure of the prosecution to explain the injuries on the person of the mother of the accused was not necessarily a fatal circumstance. ( 86 ) IN Baba Nand Sharma v. State of Assam, 1977 Cri LJ 1930 : AIR 1977 SC 2252 , the Honble Supreme Court observed "the prosecution is not obliged to explain the injuries on the person of the accused in all cases and in all circumstances. This is not the law. " ( 87 ) THIS way it is clear that it is simply a question of fact as to whether the injuries of the accused had been explained or not be the prosecution and the consequence of the same will depend on the fact and differ from case to case. This is not the law. " ( 87 ) THIS way it is clear that it is simply a question of fact as to whether the injuries of the accused had been explained or not be the prosecution and the consequence of the same will depend on the fact and differ from case to case. ( 88 ) IN this view of the legal position I find that in the present case the place of occurrence has been fixed as the statement of I. O. has not been challenged. The manner or genesis of the marpit has been fully proved from the prosecution evidence. So the present case before me stands on a far superior footing to any other case relied upon by the learned counsel for the defence. So merely because the injuries of Bhagwat co-accused had not been fully explained, the accused will not derive any benefit from this circumstance. ( 89 ) IN this light I shall summarily give a birds eye view on the prosecution evidence regarding the injuries of the accused. In para 14 of the Paper Book, Nand Kishore (PW 1) says that members of his side including his father, uncle etc. at the time of assault were empty hand. In para 17 he says that amongst the accused Bhagwat and Om Bir had received injuries but their injuries could have been caused by their own weapons. In India there is a tendency on the part of the witnesses to minimise or even withhold the injuries on the person of the accused because they think that once they admit it, that would prove fatal to the prosecution case. The witnesses in the present case were also suffering from this psychological defect. It appears that some person on the prosecution side caused assault to Bhagwat (which to not being correctly disclosed) during the course of marpit and not at the beginning of the marpit. The number and nature of injuries received by the parties is also a determining factor in judging as to which party was aggressor. If this test is applied, the accused have absolutely no case because it is proved that they had motive to cause assault to the people on the side of the prosecution and committed aggression. So the state ment of Nand Kishore (PW 1) does not help the accused. If this test is applied, the accused have absolutely no case because it is proved that they had motive to cause assault to the people on the side of the prosecution and committed aggression. So the state ment of Nand Kishore (PW 1) does not help the accused. ( 90 ) KESHA (PW 2) also admits in para 2 that Bhagwat and Om Bir had received injuries but it was not asked to him as to how these injuries were received, so this was a game of hide and seek being played from the side of the accused giving no oppor tunity to the witnesses to explain as to what was the circumstance in which these persons received injuries. So the accused cannot get any benefit from the same. ( 91 ) DINESH (PW 3) does not say about the injuries of the accused. ( 92 ) PREM Chand (PW 4) says in para 8 that seeing the accused armed with lathis and spears, he tried to run away towards east. But he was surrounded by the accused. In para 7 he says that accused Bhagwat, Om Bir and Burmi had received injuries, some of them were bleeding. These injuries were caused by his own weapons. He also proves the aggressive design of the accused. ( 93 ) RAJ Bal (PW 5) admits in para 7 that Bhagwat, Birmi and Indraj had received injuries but they were not caused by the persons an the prosecution side. ( 94 ) DR. M. P. Varshney (DW 2) had examined Pratap. He has admitted in para 3 that he did not find any sign of medical treatment on the injuries of Pratap; that itself speaks about the insignificant nature of the injuries received by him so is the case with the statement of Dr. O. N. Goel (DW 3) who examined Harnam. He deposed in para 3 that the injuries of this person appears to be untreated. Thus they were quite trivial. ( 95 ) THUS I find that in this case the scanty or non-explanation of the injuries of the accused by the prosecution does not make any dent in the prose cution case. He deposed in para 3 that the injuries of this person appears to be untreated. Thus they were quite trivial. ( 95 ) THUS I find that in this case the scanty or non-explanation of the injuries of the accused by the prosecution does not make any dent in the prose cution case. Rather it is fully proved that the accused were the aggressors and if during the course of their aggression they received some minor injuries, may be even at the hands of the prosecution witness or any outsider, that will not be a very useful circumstance in their favour. ( 96 ) THUS the learned lower courts conclusion about the guilt of the accused is based on solid evidence led by the prosecution. Being a trial court, he had the opportunity of watching the demeanor of the witnesses - a privilege not extended to this court and in absence of any misdirection on his part his appreciation of evidence should get weight at the hands of the appellate court. The learned trial Judge has sifted the evidence on every point with meticulous care and details. There is considerable weight in the observation that the defence has not given any explanation for the delayed examination of the in juries and this by itself casts some doubt about their theory of participation. The injuries were mostly superficial, hence I agree with the observation made by the learned trial court. ( 97 ) THE result of the discussion is that the prosecution case has proved its case beyond a shadow of reasonable doubt. The learned lower court has already minimised the gravity of the offence by converting the case into one under S. 326, I. P. C. from S. 302, I. P. C. The State has not filed any appeal against this order, so I do not want to say any thing more. All the same, I want to observe that the approach of the learned lower court cannot be said to be irrational and/or totally devoid of substance and support from the record. So further interference is not warranted. ( 98 ) IT was urged that the accused be given all benefits of probation Act, I do not agree. All the same, I want to observe that the approach of the learned lower court cannot be said to be irrational and/or totally devoid of substance and support from the record. So further interference is not warranted. ( 98 ) IT was urged that the accused be given all benefits of probation Act, I do not agree. They have committed a very heinous crime in broad day light with advance preparation and resolute determination, resulting, into two deaths and injuries to many persons, hence the benefit of First Offenders Proba tion Act cannot accrue to the accused. ( 99 ) THUS, this appeal has no force. The appeal is dismissed. The accused are on bail. Their bail bonds and surety bonds are cancelled. They shall be taken into custody by the C. J. M. Meerut by issuing a non-bailable warrant against them. He shall submit compliance report, within a month, from today, to this court. Appeal dismissed. .