G. S. N. TRIPATHI, J. ( 1 ) ACCUSED Radhey Shyam, Munni Lal, Sri Ram, Ram Adhar, Jai Ram Nanhku and Firtoo have been convicted on a charge u/s 147 IPC and sentenced to undergo one years R. I. They have again been convicted on a charge u/s 323, read with Section 149 IPC and sentenced to undergo one years R. I. Further they have been convicted on a charge u/s 325/149 IPC and ordered to undergo 3 years R. I. Further, they have been convicted on a charge u/s 304/149 IPC and sentenced to undergo 10 years R. I. All the sentences have been ordered to run concurrently. The aforesaid two appeals arise out of the same order and judgement dated 8-3-91 passed in S. T. No. 146/88, State v. Radhey Shyam and 6 others, P. S. Pawai, Distt. Azamgarh of the same district. ( 2 ) THE prosecution case stared on the basis of the FIR dated 17-9-87 lodged by Ramjit at P. S. Pawai at 10. 30 hrs. The incident is said to have taken place in the same evening at about 4 P. M. The place of occurrence is about 41/2 miles from the police station. It has been alleged that on 17-9-87 at about 4 P. M. small children of the house of Jhuri were fishing in the tank of the complainant. The complainants uncle Balai (deceased) asked them to run away and leave fishing. Thereafter, the accused Radhey Shyam, Jai Ram, Shri Ram, Ram Adhar, Munni Lal and Nanhku along with Firtoo arrived there, armed with lathi-dandas and bamboo Patthas (a little pointed wooden weapon ). They started assaulting Belai with their weapons. Balai cried and went towards the house. But the accused surrounded him and assaulted him in the field of Jiya Lal. On hearing the alarm, Rama Kant, Jagannath and others arrived there to the rescue of Balai. But they too were assaulted. The village people intervened and saved the life of the persons on the complainants side. In their self-defence, the prosecution side also wielded weapons. ( 3 ) ON the basis of the written FIR, the case was registered in the G. D. by Constable Sharda Prasad originally u/s 308 IPC at 17. 30 Hrs. The injured person were referred for medical examination. On 19-9-87, the message was received that Balai had died as a result of injuries. ( 3 ) ON the basis of the written FIR, the case was registered in the G. D. by Constable Sharda Prasad originally u/s 308 IPC at 17. 30 Hrs. The injured person were referred for medical examination. On 19-9-87, the message was received that Balai had died as a result of injuries. Therefore, the case was converted into one u/s 304 IPC byhead Constable Sheel Babu Ram, P. W. 4. The injures persons were medically examined. Ramjit had received 4 injuries, all traumatic swellings. Rama Kant had received one traumatic swelling and one abraded contusion. Jagannath had received one lacerated wound, two abraded contusions and one contusion and a traumatic swelling. All these injuries were caused by hard blunt weapons. Balai post-mortem report dated 18-9-87 shows that he had received, in all, 13 injuries, out of which, injury No. 4 was punctured wound 3 cm 11/2 cm into mouth cavity deep, 3 cm medial from left ear on face. Other injuries were lacerated wounds on the scalp and other parts of the body. There were four contusions. The pleura was found lacerated. 4th, 5th, 6th, 7th and 9th ribs were found fractured under the injuries and the death was caused due to cumulative effect of ante-mortem injuries received and shock and haemorrhage resulting thereon. The injuries reports have been incorporated in detail in the judgement of the learned Sessions Judge. Therefore, they are not being repeated. ( 4 ) ON the side of the accused, accused Firtoo had been examined in the same night at 11. 55 P. M. Two lacerated wounds, one contusion and two traumatic swellings-in all 5 injuries were found on his person by Dr. V. P. Singh, DW 3 He further found that on X-ray examination, the Ulna bone of Pirtoo was fractured. Smt. Ashrafi, w/o accused Munni Lal was examined by Dr. V. P. Singh, DW 3 in the same night at 11. 45 p. m. She had received one lacerated wound at the head-4 cm x 1 cm cavity deep, two traumatic swellings on the hand and one contusion on the right shoulder. Accused Radhey Shyam was examined in the same night at 11. 30 P. M. by Dr. V. P. Singh, D. W. 3. One incised wound 5 cm x 2 cm was found on the upper part of the left foot skin, margins clear-cut, fresh bleedings were detected. Accused Radhey Shyam was examined in the same night at 11. 30 P. M. by Dr. V. P. Singh, D. W. 3. One incised wound 5 cm x 2 cm was found on the upper part of the left foot skin, margins clear-cut, fresh bleedings were detected. Another injury was traumatic swelling 5 cm x 4 cm x back of left forearm, 5 cm below the left elbow joint. Injury No. 1 was caused by some sharp-cutting weapon. The detailed description of the injuries of the accused is to be found in the judgement of the learned trial court. ( 5 ) SRI Radhey Shyam Tewari, P. W. 7 is the 1st Investigating Officer. The case was registered in his presence. He interrogated the witnesses Balai (deceased ). Jagannath, Ramakant, Bhulan, Ramjit, Chitbahal, Ram Bujh. On 18-9-87 he went to PHC Ahiraula for preparing the Panchyat-nama and other related documents as Balai was dead and his dead body was laying there. He inspected the spot, collected the blood-stained and ordinary earth, sealed them in separate containers and after getting the dead body sealed and preparing other related documents, he sent the same for post-mortem examination. Thereafter investigation was taken in the had of S. O. Sri Phoolraj, P. W. 8. He received post-mortem report and injury reports, recorded the statements of village Pradhan, Lekhpal and others and ultimately submitted the charge sheet against the accused. ( 6 ) THE prosecution has examined the following evidence in support of its case, P. W. 1 Ramjit is the complainant. He has narrated the entire story as contained in the FIR Additionally he has said that the tank belonged to his family and only a month earlier, seedlings of fishes had been planted by him in the tank. Some portion of the bhita of the tank had been cut away by the accused. The complainants father had asked the accused not to do so. Thereupon, they assaulted him. A criminal case against the accused was also pending in the court of J. M. Phulppur. On the date of occurrence, Balai reached first and he was assaulted by the accused. In the defence of person, the prosecution side also wielded lathies. ( 7 ) P. W. 2 Ram Kant is the son of deceased Balai. He has supported the statement of P. W. 1. On the date of occurrence, Balai reached first and he was assaulted by the accused. In the defence of person, the prosecution side also wielded lathies. ( 7 ) P. W. 2 Ram Kant is the son of deceased Balai. He has supported the statement of P. W. 1. After hearing the alarm, he reached the spot and saw the incident. He was also injured as noted above. ( 8 ) P. W. 2 Bhulan had also reached after hearing the alarm. These are the three witnesses of fact examined by the prosecution. ( 9 ) OTHER evidence is formal, for instance, P. W. 4 H. C. Sheel Babu Ram had made the entries in the chik and G. D. , P. W. 5, Dr. V. P. Singh had examined the injuries of Jaganath, Ram Kant and Ramjit on 17-9-87, P. W. 8 Dr. L. N. Singh had conducted the autopsy on the dead body of Balai and has proved his report, P. W. 6 Bhrigu Nath conducted the dead body in the sealed condition before Dr. L. M. Singh and identified the same, P. W. 7 Sr. Radhey Shyam Tewari is the Ist Investigating Officer. He has proved the investigation process from beginning till end and the documents prepared by him in that connection, and P. W. 8 S. O. Sri Phool Raj Singh has completed the investigation. ( 10 ) THE accused have generally denied the allegations against them u/s 313 Cr. P. C. Radhey Shyam accused has said that he was injured by the prosecution side. Munni Lal, accused had lodged the report against the prosecution side. Ram Adhar has denied his invlovements. Sri Ram has said that he had been to the police station and was arrested there. Firtoo states that the tank belonged to the Gaon Sabhas and Ramjit P. W. 1 wanted to grab it. Further he has said that Balai, Jagganath, Rama Kant,ram Jit, Rama Prasad, Vikram and others and their houses in another hamlet, whereas, the houses of the accused were situate in a different hamlet. The intervening distance was about 2 forlongs. On the date of occurrence, Rama Prasad, Vikramjit, Balai, Ramakant, Jagganath, Ramjit and others started pelting stones at the house of the complainant. By way of resentment the people of this hamlet, ladies and gents, arrived there and wielded their weapons in defence. The intervening distance was about 2 forlongs. On the date of occurrence, Rama Prasad, Vikramjit, Balai, Ramakant, Jagganath, Ramjit and others started pelting stones at the house of the complainant. By way of resentment the people of this hamlet, ladies and gents, arrived there and wielded their weapons in defence. Jai Ram and Nanhkau have also denied the allegations against them. ( 11 ) D. W. 1 Surya Prasad Srivastava, pharmacist, Distt. Hospital, Azamgarh had brought the X-ray plate and report of Firtoo accused, on the basis of which DW. "dr. S. K. Jaiswal detected a fracture in the elbow and right forearm of Firtoo accused. " ( 12 ) D. W. 3 Dr. B. P. Singh had medically examined Firtoo, Smt. Ashrafi and Radhey Shyam and has proved their injuries and reports. ( 13 ) APART from it, Firtoo, accused had lodged his report on 17-9-87 at 18. 30 Hrs. in which he had arrayed Rama Prasad, Vikram, Rati Lal, and Balai (Deceased) as accused persons. He has alleged in his report that in his abadi, he had kept his bricks. The accused aforesaid were removing the same without any justification. The accused started claiming land underneath the bricks as their own. Exchange of words took place. The accused started assaulting. Thereupon the aforesaid person (Present accused) wielded weapons. ( 14 ) AFTER analysing the entire evidence and circumstances on the record, the learned lower court came to the conclusion that the prosecution story, as alleged, was reliable. He, accordingly, believed the prosecution case and convicted and sentenced the accused as noted above. ( 15 ) FEELING aggrieved, the accused have filed the aforesaid two appeals. I have heard the learned counsel for the parties at stretch and gone through the record. I find that there is much force in these appeals and they deserve to be allowed. ( 16 ) TWO things are very glaring admittedly firstly, the incident of marpit took place in the evening of 17-9-87. According to the prosecution, the occurrence took place at about 4 P. M. whereas, according to the accused, the occurrence took place at about 5 P. M. a very insignificant difference in time. ( 17 ) ANOTHER important feature is that Firtoo accused lodged his report at 18. 30 Hrs. whereas, complainant Ramjit reported the matter at 19. 30 Hrs. According to the prosecution, the occurrence took place at about 4 P. M. whereas, according to the accused, the occurrence took place at about 5 P. M. a very insignificant difference in time. ( 17 ) ANOTHER important feature is that Firtoo accused lodged his report at 18. 30 Hrs. whereas, complainant Ramjit reported the matter at 19. 30 Hrs. exactly one hour after the accused Firtoo got his case registered. ( 18 ) THIRDLY, the injured accused and prosecution side injured persons were examined in the same evening at the same hospital and they have received injuries of the same nature i. e. caused by blunt weapons except one caused by Patthas to Balai. So there is a vast similarity in the cases set up by the two sides. The courts duty becomes very onerous in deciding as to which party is the aggressor. In this connection, the prosecution has come out with a case that the tank exclusively belonged to Balai and others. Whereas, the accused have alleged that the tank belonged to the Gaon Sabhas. Before the lower court, a Khautauni was filed showing that in the plot no. 846, a tank was recorded over 404 links area in the name of Balai. The remaining 206 link was not recorded in his name. The I. O. did not find any demarcation on the spot. I. O. Shri Phool Raj, P. W. 8 in the cross-examination has admitted that he had taken the extract of Khatauni in respect of the ownership of the tank. But that was only for a partial portion of the tank. The remaining portion belonged to the Gaon Sabhas. So, from documentary evidence, it was not established that the tank exclusive belonged to Balai and over his exclusive area fishing had been unlawfully done by the boys of the family of the accused. Not only this, the oral evidence on this point led by the prosecution is not conclusive. ( 19 ) P. W. 1 Ramjit, complainant has admitted in the cross-examination at page 25 of the paper book that this tank was in the use of general public although the tank had been got dug 100 years earlier by his ancestors. Not only this, the oral evidence on this point led by the prosecution is not conclusive. ( 19 ) P. W. 1 Ramjit, complainant has admitted in the cross-examination at page 25 of the paper book that this tank was in the use of general public although the tank had been got dug 100 years earlier by his ancestors. Naturally this evidence is hearsay with regard to the alleged digging of the tank by the ancestors of the witness 100 years ago as the age of the witness is only 45 years. Further, he has admitted that this land was dug out, much before his birth. No legal proceedings were taken by him during his life-time. He did not know as to how the property came in the name of his father. He did not state before the I. O. that the tank had been got dug by his ancstors. ( 20 ) P. W. 2, Rama Kant is the son of Balai deceased. He also claims that the tank belonged to his family. He tried to minimise the public use of this tank and said that only cattle of his family are washed in this tank. ( 21 ) P. W. 3, Bhulan also says that the other people of the village did not utilize this tank. In view of the fact that in the documents ownership of Gaon Sabha over 204 links of the land was recorded in this tank, it is difficult to believe that the tank exclusively belonged to Balai or it was in his exclusive possession. ( 22 ) ANOTHER important feature of the case is that the accused had received injuries, for which there is no adequate explanation. Not only this, on the side of the accused, Smt. Asharfi had received as many as 4 injuries. Her presence is not admitted by the P. Ws. and there is absolutely no explanation for her injuries. Dr. V. P. Singh, D. W. 3 came to prove the injuries of Smt. Ashrafi. It was not suggested to him that these injuries were fabricated. The injuries were on the vital part of the body, specially injury No. 1. That could not be self-suffered either. and there is absolutely no explanation for her injuries. Dr. V. P. Singh, D. W. 3 came to prove the injuries of Smt. Ashrafi. It was not suggested to him that these injuries were fabricated. The injuries were on the vital part of the body, specially injury No. 1. That could not be self-suffered either. ( 23 ) SIMILARLY, there is no adequate explanation as to how Radhey Shyam Yadav accused had received the incised wounds, which was 5 cm x 2 cm on the upper part of the left foot. According to the Dr. V. P. Singh, this injury could have been caused by a sharp cutting weapon, like Pharsa, Not only this, Fortoo had received as many as 5 injuries, including a fracture. Now I shall see as to whether the prosecution has honestly and bonafidely tried to explain the injuries received on the side of the accused so much so that the court may come to conclusion that the accused were the aggressors. ( 24 ) IN the FIR the complainant has mentioned only this much that "we were also wielding lathi danda and not a Pharsa in our defence. " He does not mention that the accused had received the injuries. The accused were also examined in the same night in the same Hospital. Even than every effect has been made either to minimise or ignore the injuries of the accused, which I shall see in the following paragraphs. ( 25 ) P. W. 2 Ramjit states in the Examination in Chief that we (who are these persons is not disclosed) also wielded lathis and dandas. But at page 26 in the cross-examination, he states that he does not know as to whether the accused had received injuries and if so, how many of them. "i, Balai and Ramakant had lathis. We all were wielding them. But we did not aim our weapons towards any accused. The accused might have injuries. But Smt. Ashrafi had not received injuries at all as she was not there. I could not say whether Radhey Shyam and Pirtoo accused received injuries at all. I did not see them bleeding from their injuries. " This is a clear falsehood. The injuries on the side of the accused, referred to above go to show that the injured persons must have bled from these injuries. I could not say whether Radhey Shyam and Pirtoo accused received injuries at all. I did not see them bleeding from their injuries. " This is a clear falsehood. The injuries on the side of the accused, referred to above go to show that the injured persons must have bled from these injuries. This avoiding nature of the statement of this witness Ramjit clearly shows that he is not giving bona fide and truthful explanation for the injuries received on the side of the accused. ( 26 ) P. W. 2 Ramakant states in the Examination-in Chief that in his defence, persons form the prosecution side also wielded weapons. When he was cornered in the cross-examination at page 32 of the paper book, he simply said that in defence people on his side also used weapons and accused might have received injuries. But who were the injured persons on the side of the accused, is not known. He did not say any person on the side of the accused receiving injuries. He cannot see as to how many persons on the side of the accused received injuries. He does not know the wife of Munni Lal accused. He has not seen her either. She was not on the spot. This again shows that an explanation for the injuries of Smt. Ashrafi is totally missing. Regarding the injuries of other accused also, he is very niggardly. Therefore, his explanation is neither bona fide nor truthful. ( 27 ) P. W. 3 Bhulan simply states in the Examination-in-Chief that Jagannath and other also wielded their lathis. In the cross-examination in paragraph 1, he admits that the wife of Munni Lal was not present on the spot. Firtoo and Radhey Shyam accused were there. Firtoo and Radhey Shyam had not received any injuries on their eyes. Whereas, injury no. 1 of Firtoo is on the upper eye brow. The learned trial court has noted his demeanour by observing that the witness was trying to avoid reply to the questions. When further cornered, the witness said that he did not see any person injured on the side of the accused. Therefore, this witness is also not telling the truth as regards the injuries received on the side of the accused. When further cornered, the witness said that he did not see any person injured on the side of the accused. Therefore, this witness is also not telling the truth as regards the injuries received on the side of the accused. ( 28 ) THE sum total of the analysis is that the prosecution has miserably failed to explain the injuries on the side of the accused, namely, Firtoo, Radhey Shyam and Smt. Ashrafi. There is every efforts to deny the presence of Smt. Ashrafi on the spot. So much as laconic explanation regarding the injuries the accused cannot be accepted as truthful. ( 29 ) ANOTHER important features of the case is that genesis of marpit has not been explained by the prosecution in the FIR. It is said that some children of the family of the accused were fishing in the tank. Balai asked them to run away. That infuriated the accused. There is no witness of this occurrence because all the three witnesses of fact examined by the prosecution reached later on. Even the I. O. Sri Radhey Shyam Tewari, P. W. 7 did not take the trouble of discovering the genesis of this marpit. In the first few lines of the cross-examination, he has admitted that he did not try to find out the boys, who were fishing in the tank. He did not try to find out even this much as to whether the accused had any children or not. So it is difficult to believe that somechildren of the family of the accused were fishing in the tank-water and that compelled Balai to make them run away, which later no culminated into his marpit. ( 30 ) P. W. 1 Ramjit does not say that the boys were fishing in his presence and Balai compelled these boys to run away. Rama Kant, P. W. 2 clearly admits in the cross-examination at page 32 in the paper book in these words :-"i do not know as to how the marpit started. " He heard the alarm raised by his father Balai and then he reached the spot. So, he neither saw the fishing by the boys of the family of the accused nor the beginning of the marpit. ( 31 ) P. W. 3 Bhulan is not an injured witness. " He heard the alarm raised by his father Balai and then he reached the spot. So, he neither saw the fishing by the boys of the family of the accused nor the beginning of the marpit. ( 31 ) P. W. 3 Bhulan is not an injured witness. At page 36 in the paper book he admits that when he reached the spot, the quarrel was going on as he had heard the noise at his house. So he was not present on the spot to see as to how fishing was done and how themarpitstarted. So, there is no conclusive evidence to convince this Court that themarpitwas started by the accused. ( 32 ) ALTHOUGH the number and nature of injuries play same role in deciding as to which party was aggressor, but it is not decisive always. It is the expertise of the assaulter, his promptitude and capacity to react without loss of time, which are responsible for causing the number of injuries and also disclosing their nature. Therefore, simply because the injuries on the side of the prosecution are more in number, we cannot reach to a conclusion that the accused were the aggressors. ( 33 ) WHEN the evidence of the accused preponderantly shows that they could also be victims of the assault, their case cannot be brushed aside. Rather, it makes the burden of the prosecution heavier and unless it is discharged from all angles, the accused must get the benefit of doubt. ( 34 ) THE trial court was simply swayed away by the number of injuries. The learned trial court ignored the anomalous circumstance arising out of the injuries of the accused at page 99 of the paper book by observing that "when a person wields a weapon, he is not conscious as to which person had received injuries and which person had missed, because he is busy in wielding the weapons only. " This is not the natural conduct. After all, the weapon is wielded aiming at somebody. So that somebody who happens to be a recipient of the assault must necessarily be known of the assault. Therefore, the explanation of the learned trial court to meet this old circumstance exiting against the prosecution, to say the least, is very clumsy and half-hearted. After all, the weapon is wielded aiming at somebody. So that somebody who happens to be a recipient of the assault must necessarily be known of the assault. Therefore, the explanation of the learned trial court to meet this old circumstance exiting against the prosecution, to say the least, is very clumsy and half-hearted. ( 35 ) AT page 183 in the judgement, the learned trial court has observed that the marpit started between the parties without any forceful cause. It means it was sudden abruption. This clearly shows hollowness of the prosecution case that the accused were aggressors. Later on at the same page, the learned lower court admits that the injuries on the side of the accused were neither insignificant nor ignorable. But it was a chance that Balai received more injuries in number, resulting in his death. I think this is what the defence wants this Court to believe. It was a sudden incident of marpit without any preparation. So the task of finding the aggressor becomes all the more difficult. Despite this oddity, in the prosecution case, the learned trial Court believed the prosecution version, which was impossible to believe. ( 36 ) THIS way, I find that the approach of the learned trial Court was neither legal nor well-founded. This is a case in which it was impossible to find out as to which party was the aggressor. Therefore, the accused are entitled to benefit of doubt and consequentially (acquitted ). ( 37 ) THE appeals are allowed. The judgement and order passed by the learned trial court are set aside. The accused aforesaid are acquitted of all the charges leveled against them. They are on bail. Although their bail bonds and surety bonds were ordered to be cancelled but that order need not be followed any more. They need not surrender to their bail bonds. They are consequently discharged. Appeals allowed. .