J. B. GOEL ( 1 ) ASHOKKUMAR and Swamp Singh appellants in Cr. A. 151/90 along with Ram Kishan, Raghubir, Dayanand, Randhir Singh and Jagan, appellants in Cr. A. 170/90 were charged and tried for offences under Section 148 Indian Penal Code, 302 read with Section 34 Indian Penal Code and 323 Indian Penal Code read with Section 34 Indian Penal Code and appellants Raghbir. Sarup Singh, and Ashok Kumar were also separetaly charged for offence under Section 308 Indian Penal Code read with Section 34 Indian Penal Code for an occurrence of 16. 1. 83 at village Kakrola in which Zile Singh s/o Bhartu and Sardar Singh s/o pokar had been killed: and Ram Rati, Sundra, Narsingh and Jaikaran had received injuries. Additional Sessions Judge, Delhi vide judgment dated 27. 10. 90 had found all the aforesaid accused persons quilty, as charged and sentenced all the accused persons for imprisonment for life with a fine of Rs. 2,000. 00 and in default of fine, rigorous imprisonment for one year under Section 302/34 Indian Penal Code; to rigorous imprisonment of one year under Section 148 Indian Penal Code and to rigorous imprisonment for 6 months for offence under Section 323/34 Indian Penal Code and accused Raghubir Singh, Swarup Singh and Ashok Kumar were also awarded a sentence of rigorous imprisonment for 2 years each for offence under Section 308/ 34 Indian Penal Code. The sentences were to run concurrently. Being aggrieved, the accused have come in appeal. ( 2 ) THE prosecution was launched on the basis of complaint (Ex. Public Witness-2/a) lodged by Smt. Ram Rati (Public Witness-2) wife of deceased Sardar Singh, while she was admitted in R. M. L. hospital, to ASI Shiv Charan of PS Najafgarh. Earlier DD No. 9a had been recorded-at the said police station at 9 A. M. on 16. 1. 83 on the basis of information given by one Jai Prakash s/o Sh. Gashi Ram r/o village Bahadur garh stating that he had come to see his sister at village Kakrola and that a quarrel was going on between the two parties and that some officer may be deputed there. A copy of this DD entry was entrusted to said A. S. I, who visited the said village along with 2 constables in a police jeep and there came to know that the injured persons had been removed to hospital. A copy of this DD entry was entrusted to said A. S. I, who visited the said village along with 2 constables in a police jeep and there came to know that the injured persons had been removed to hospital. No eye-witness met him and he then reached R. M. L. Hospital and obtained MLCs of Sardar Singh. Zile Singh. Ram Rati and Sundera. Zile Singh had already been declared dead. Sardar Singh was unfit to make. statement. Ram Rati and Sundera were declared fit to make statement and he recorded the statement Public Witness-2/a of Smt. Ram Rati. ( 3 ) IN her statement, she had stated that she along with her family was residing in village Kakrola and families of Mir Singh. Sawalia and Surte were also living in their neighbourhood in this village. Her family had a gitwar with brick walls constructed several years ago, with hedges planted around it. Yesterday her husband Sardar Singh left the house for going to meet his Bua (father s sister) in village Mandothi but after sometime, he came back and told her that when he was near his gitwar. he saw that Bharpai and Nimi, daughters of Sawalia were removing the hedges of their gitwar to take their buffaloes through their gitwar. On objection being raised by him, both the said girls grappled with him and Sawalia and Jagan gave lathi blows on his hands, when her father-in-law Zile Singh came to know about this incident, he gave abuses to Jagan. Sawalia, Ram Kishan and Randhir etc. In the evening, however, i relations of Sawalia came to them and the matter was compromised and so no report was lodged with the police. Today (i. e. 16. 1. 83) at about 8 A. M. Zile Singh was going out to ease herself, she with her husband Sardar Singh was present outside their house near electric pole and watching their buffaloes, when they saw that Jagan s/ o Sawalia. Ram Kishan and Randhir sons of Mir Singh came running out of their house armed with lathis in front of their poli in the gali, Ram Kishan and Randhir caught hold of both hands of Zile Singh and Jagan gave lathi blow from behind on his head as a result of which he fell down and while he was lying on the ground, they also gave several lathi thrusts. She and her husband raised alarm and went running to rescue him and when her husband tried to pick up Zile Singh, Daya Nand and Raghbir, sons of Mir Singh came armed with lathis and gave lathi blows to her and to her husband. Ram Kishan also gave lathi blows on the head of her husband and Daya Nand gave lathi blows on her head. Randhir and Raghubir also gave lathi blows to them. Her sister Sundera. her brother-in-law Jai Karan and her Uncle-in-law Narsingh had come there to rescue them when Samp Singh, nephew of Surat Singh and a son-in-law of Sawalia whose name she did not know but could recognise him by face came armed with lathis and gave beatings and then Jagan and his four brothers Ram Kishan. Randhir. Daya Nand and Raghubir thrashed them severely with their lathis. Their relation Dharmvir who had visited them in the morning brought a car from Najafgarh and he removed Zile Singh. Sardar Singh. Ram Rati and Sundera. the injured persons to R. M. L. hospital in that car. Zile Singh had died on the way to hospital while Sardar Singh was in serious condition. (Jai Karan and Narsingh who had also sustained injuries had been separately admitted in Hindu Rao hospital ). ( 4 ) THE said ASI made an endorsement on that statement and got FIR registered at the police station. Zile Singh. Sardar Singh. Ram Rati. Sundera had been admitted in R. M. L. hospital in injured condition. Zile Singh was declared dead when he reached the hospital Narsingh and Jai Karan had been admitted to Hindu Rao Hospital From the other side Raghubir. Ram Kishan. Daya Nand and Randhir had been admitted in injured condition in R. M. L. hospital at about 11. 50 A. M. whereas Bharpai was admitted at 4 P. M. Intimation of the admission of the injured persons and of the two persons having died was given to the police station by a duty constable. On the same day Sardar Singh had also died in the hospital at about 4/ 4. 30 P. M. SHO had also reached the hospital and had taken over investigation. Inquest proceedings were conducted on the dead bodies of Zile Singh and Sardar Singh and post mortem was also done on the dead bodies. During investigation, blood stained earth and some other exhibits were seized. 30 P. M. SHO had also reached the hospital and had taken over investigation. Inquest proceedings were conducted on the dead bodies of Zile Singh and Sardar Singh and post mortem was also done on the dead bodies. During investigation, blood stained earth and some other exhibits were seized. The accused were arrested and the clothes worn by them having blood stains, were seized. Accused Raghubir. Randhir, Ram Kishan and Daya Nand and Jagan had made disclosure statements and Ram Kishan. Randhir and Jagan had got recovered lathis having blood stains. Exhibits were sent to CFSL and reports obtained. ( 5 ) ALL the appellants/accused persons were put to trial. During trial prosecution had examined in all 32witnesses including 4 injured Ram Rati (Public Witness-2), Sundera (Public Witness- j 3 ). Narsingh (Public Witness-5) and Jai Karan (Public Witness-6 ). The accused in their statements under Section 313 Cr. P. C. had denied the incriminating circumstances. Jagan. Randhir, Raghubir, Daya Nand and Ram Kishan had also separately filed written statements giving their own version about the occurrence alleging that the complainant party were aggressors. Other accused have denied their presence and involvement. The pleas taken by them was that on 15. 1. 83 Nimmi and Bharpai, sisters of Jagan had taken their cattle to the pond near their agricultural land for watering them. The cattle strayed into the gitwar of Sardar Singh which had no effective boundry. Sardar Singh who was passing by abused the girls on hearing which Jagan and Sawalia came to the spot and Jagan gave 2-3 slaps to Sardar Singh as to why he was abusing the girls. Jagan and Sawalia were not armed and had not given any lathi blows. Neither Zile Singh had given them abuses as alleged nor any compromise was effected on 15. 1. 83. About the occurrence on 16. 1. 83 it was alleged that in the morning, Bharpai was going towards the field from her house in the street, she was accosted by Ram Rati and Sundera near the house of Ram Chander. They abused her and Sundera gave her beating and Ram Rati was armed with jelly. Bharpai raised alarm hearing which Jagan came to the spot from his house. Narsingh came armed with lathi and- gave beating to him. They abused her and Sundera gave her beating and Ram Rati was armed with jelly. Bharpai raised alarm hearing which Jagan came to the spot from his house. Narsingh came armed with lathi and- gave beating to him. Jagan ran away and took shelter in the house of Om Prakash situated in the street: that according to pre arranged plan. due to annoyance of the incident of 15. 1. 83. Zile Singh, Sardar Singh and Jai Karan joined Ram Rati. Sundera and Narsingh and started knocking at the door of Om Prakash. When Jagan did not come out. these persons came near the corner of house of Siri. On hearing their outcries. Ram Kishan, Randhir. Raghubir and Daya Nand, accused came from their respective houses and Sardar Singh and his aforesaid five companians who were armed started beating them. Ram Rati had given jelly blow to Randhir and others had injured Ram Kishan. Raghubir. Daya Nand and Bharpai with the lathis. There after Surat Singh and Sawalia on hearing the noise came there and in order to save and rescue them gave beating to Zilesingh, Sardarsingh and others outside the house of Siri and that the fight had not taken place outside the house of Raghubir as alleged by the prosecution. No witness about the occurence, however, was examined on behalf of the accused persons. One DW-1 Om Prakash was examined to prove the site plan (Ex. DW1/a) ofthe alleged place of occurrence. ( 6 ) TRIAL Court convicted and sentenced all the accused persons as aforesaid. ( 7 ) WE have heard Sh. Dinesh Mathur. Sr. Advocate for the appellants and Sh. R. D. Jolly, counsel for the State who was assisted by Sh. S. P. Minocha, Advocate for the complainant. ( 8 ) LEARNED counsel for the appellants has contended that there was no motive in this case inasmuch as as per prosecution case, the incident of 15. 1. 83 had been settled by mutual compromise and as such there was no occasion forthe appellants to have resorted to violence. This is in the alternate to his other plea that it was the complainant party who were aggressor and the accused had acted in self-defence. ( 9 ) PUBLIC Witness-2 Ram Rati had lodged the FIR vide statement (Ex. Public Witness-2/a ). This is in the alternate to his other plea that it was the complainant party who were aggressor and the accused had acted in self-defence. ( 9 ) PUBLIC Witness-2 Ram Rati had lodged the FIR vide statement (Ex. Public Witness-2/a ). She has deposed that at some distance from her house they had constructed a gitwar with boundry wall of bricks with thorny bushes fenced around the boundry wall. On 15. 1. 83 at about 11/11. 30 A. M. her husband (Sardar Singh who is one of the deceased) left the house for going to the house of his Bua in village Mandothi. After some time he came back and on her asking the reasons for his coming back, he had told her that Bharpai and Nimmi daughters of Sawalia had uprooted the thorny bushes and allowed their buffaloes to enter his gitwar, to this he had objected and told them that they could cross over from plenty of other places available to them. On this Bharpai and Nimmi grappled with him and Sawalia and Jagan gave lathi blows on his hands. On coming to know of this her father-in-law Zile Singh had abused Ram Kishan, Jagan and Randhir. On the same evening, relations of Sawalia including his son-in-law Ashok, Surte and his nephew Sarup came to the poli of Narsingh and advised her husband, Narsingh and Zile Singh that it was not good to have strained relations and it is better to patch up the differences and they agreed and compromise was arrived at. As a result of which no police report was lodged. ( 10 ) IN cross-examination, she had clariifed that Zile Singh was not the father of her husband but they called him so as Sardar Singh was brought up by him. Zile. Singh was not residing in her house. She has denied the suggestion that their gitwar was not fenced. She was confronted with her statement Ex. Public Witness-2/a to show certain omissions/contradictions in her earlier statement (Ex. Public Witness-2/a) where she had not stated (i) the time when her husband had left the house on 15. 1. Zile. Singh was not residing in her house. She has denied the suggestion that their gitwar was not fenced. She was confronted with her statement Ex. Public Witness-2/a to show certain omissions/contradictions in her earlier statement (Ex. Public Witness-2/a) where she had not stated (i) the time when her husband had left the house on 15. 1. 83 (ii) that her husband had told her that he had ad vised the said two girls that they could crossover from any other place because they had plenty of other places (iii) about the place of meeting being at the poli of Narsingh (iv) that the relatives of Sawalia advised her husband, father-in law and Narsingh to patch up the differences as it is not good to have differences. Public Witness-3 Sundera has also corroborated her in this respect on the basis of information given to her by deceased Sardar Singh. The case of the accused in this respect, as suggested to Public Witness-2 and Public Witness-3. is that : ( 11 ) BHARPAI and Nimmi had taken their cattle to the pond to water them and the cattle entered the said gitwar: that because of this fact Sardar Singh abused Bharpai and Nimmi; that Jagan and Sawalia who were present in their field came there and gave 2-3 slaps to Sardar Singh: that they had no lathis with them and they had not inflicted any injury on the hands of Sardar Singh at that time: that Zile Singh had not abused the aforesaid 3 accused: that no relatives of the accused contacted Zile Singh or Sardar Singh and that there was no compromise of any sort: which she has denied as incorrect. In their statements under Section 313 Cr. P. C. also Jagan, Randhir, Raghubir, Daya Nand and Ram Kishan have taken similar pleas. The accused Ashok Kumarand Sarup Singh, however, have denied knowledge of this incident of 15:1. 83. ( 12 ) TRESPASSING of cattle which were being led by Bharpai and Nimmi in gitwar of Sardar Singh and presence of Jagan and Sawalia on the spot at the time of that incident are, thus. admitted or are not disputed. However, the plea taken is that 2- 3 slaps were given by Jagan to Sardar Singh and no lathi blow was given. Factum of compromise is also denied. admitted or are not disputed. However, the plea taken is that 2- 3 slaps were given by Jagan to Sardar Singh and no lathi blow was given. Factum of compromise is also denied. Public Witness-5 Narsingh has deposed that Sardar Singh had built a gitwar surrounded by thorny bushes : that he and his brother Zile Singh were having a talk at his house to lodge a report about this incident when Sawalia, Surte, Sarup Singh and Ashok Kumar approached them not to lodge a report and to compromise the matter and the compromise was effected. In cross-examination, he was confronted with his police statement (Ex. Public Witness-5/da) where he has not stated that he and his brother Zile Singh were talking at his house to lodge the report about the incident involving Bharpai and deceased Sardare. and Sawalia. Surte, Sarup Singh and Ashok Kumar had approached them to compromise the matter. But the factum of compromise is mentioned. Which of the two versions is correct? Sardar Singh was not a teenage boy who would have taken 2-3 slaps at the hands of Jagan calmly and without resistance or retaliation of some sort. That he had not retaliated shows that Jagan and Sawalia were armed with lathis but he was alone and unarmed. Thus. it is apparent that he had objected to the trespassing of cattle of the accused and was manhandled by Jagan. Clearly it was an act of highhandedness on the part of Jagan. It was probable that on coming to know about this incident. Zile Singh whom Sardar Singh treated as his father would have been annoyed and showed resentment and abused the accused persons or some of them. There is nothing to show that there was any old enmity between the parties and in that case. there is nothing inherently improbable that the matter hadbeen mutually compromised at the initiative of Sawalia and his other relations. However, Jagan Ram Kishan, Randhir. Raghubir and Daya Nand were not party to such compromise and in the circumstances, it cannot be said that they would have been satisfied with this compromise. It may also be mentioned that Sawalia and Surte had not participated in the occurrence of 16. 1. 83 which also suggests that this occurrence had possibly taken place against their wishes. Raghubir and Daya Nand were not party to such compromise and in the circumstances, it cannot be said that they would have been satisfied with this compromise. It may also be mentioned that Sawalia and Surte had not participated in the occurrence of 16. 1. 83 which also suggests that this occurrence had possibly taken place against their wishes. Otherwise, it cannot be believed that when six persons from the side of the complainant and 5-6 persons from the side of the accused had received injuries, Surte and Sawalia would not have received any injuries whatsoever. The question then is who is the aggressor? ( 13 ) PROSECUTION has examined Public Witness-2 Ram Rati,public Witness-3sundera, Public Witness-5 Narsingh and Public Witness-6 Jai Karan as eye witnesses of the occurrence. Public Witness-2 is the wife of deceased Sardar Singh. She has deposed that on 16. 1. 83 she and her husband were standing outside their house near the elctric pole at about 8 A. M. and were looking towards their buffaloes. Zile Singh was coming from his house for answering the call of nature when Randhir, Ram Kishan and Jagan came out from the house of Raghubir armed with lathis, Randhir and Ram Kishan caught hold of both the hands of Zile Singh and Jagan hit him with lathi on his head with great force from behind as a result of this lathi blow Zile Singh fell down and while he was so lying on the ground, these three persons further gave thrusts with the ends of lathis to him. She and her husband raised alarm and rushed towards Zile Singh to rescue him and when they tried to lift Zile Singh, Daya Nand and Raghubir came out of the same house where from Ram Kishan, Jagan and Randhir had come out. They were armed with lathis. Ram Kishan hit Sardar Singh on his head with lathi. Daya Nand hit on her person as well as on her head. Randhir and Raghubir also hit her husband Sardar Singh with lathis several times, then her sister Sundera, Jai Karan and Narsingh also came there to rescue them. As soon as Sundera and Jai Karan reached the spot, Ashok and Sarup Singh also came out from the said house armed with lathis. Sarup Singh hit Sundera with lathi on her head with force and on her body. As soon as Sundera and Jai Karan reached the spot, Ashok and Sarup Singh also came out from the said house armed with lathis. Sarup Singh hit Sundera with lathi on her head with force and on her body. Raghubir and Ashok hit Jai Karan with lathis. Ashok, Sarup Singh and Raghubir then gave lathi blows to Narsingh. She has identified the accused persons including Ashok as son- in-law of Sawalia. She further stated that Jai Karan was carrying a danda and Narsingh was carrying a lathi and they had hit the accused persons back when they had attacked them, in order to protect themselves and because of the commotion, the accused persons ran away from the spot. Thereafter her relation Dharam Vir who had visited them. on her asking brought a car and took Sardar Singh, Zile Singh. herself, Sundera and Sudesh to the hospital in the car (Jai Karan and Narsingh remained at the spot and were later admitted in Hindu Rao Hospital ). They were admitted in the hospital. Zile Singh died on the way to hospital while Sardar Singh was in serious condition. Police came to her in the hospital and recorded her statement Ex. Public Witness2/a. (Sardar Singh had also died in the hospital at about 4 or 4. 30 P. M. on the same day ). She was confronted with her statement Ex. Public Witness-2/a where she has not stated that Randhir. Ram Kishan and Jagan had come out from the house of Raghubir and that Daya Ram, Raghubir, Ashok and Sarup Singh had also come out of the same house. In her statement Ex. Public Witness2/a it has been stated that Jagan. Ram Kishan and Randhir came from their house. She was further confronted to show that she did not tell the police that Jai Karan was armed with danda and Narsingh was armed with lathi and they had given lathi and danda blows to the accused persons in order to protect themselves or that Narsingh always used to carry lathi with him and that she had not stated that Sudesh also accompanied them in the car to the hospital. She further stated in cross-examination that this incident took place in front of the poli of Raghubir. ( 14 ) IN the cross-examination, the accused have put their case as under:- "it is wrong to suggest that on 16. 1. She further stated in cross-examination that this incident took place in front of the poli of Raghubir. ( 14 ) IN the cross-examination, the accused have put their case as under:- "it is wrong to suggest that on 16. 1. 83 in the morning when Bharpia was going towards the fields from her house, in the street or that I and Sundera accosted near the corner of the house of Ram Chander and abused her. It is also wrong to suggest that Sundera gave her beating or that I was armed with Jelly. It is wrong to suggest that on the outcry of Bharpai, Jagan, accused came from the house and simultaneously came Narsingh, Public Witness, armed with lathi and gave beating to Jagan,who ran away towards the house of Om Prakash S/o Net Ram. It is further incorrect (that) according to plan Zile Singh, Sardar Singh and Jai Karan also came there and knocked at the door of Om Prakash and asked him to send out Jagan or that Om Prakash refused to send Jagan out. It is incorrect to suggest that all of us thereafter came to the main lane raising outcries near the house of Siri. On hearing our noise, Ram Kishan, Randhir, Raghubir and Daya Nand came there. It is wrong to suggest that all of us who were six in number attacked them or that I gave jelly blow to Randhir and others who were armed with lathis and injured Ram Kishan, Raghubir, Randhir, Daya Nand and Bharpai and it was thereafter that Sarup Singh and Sawalia came with lathis and in order to save and rescue others inflicted lathi blows to Zile Singh and Sardar Singh. It is wrong to suggest that Ashok and Sarup Singh were not present on the spot at all or that the quarrel took place outside the house of Siri. " ( 15 ) IN her cross-examination it is not disputed that Zile Singh and Sardar Singh were given lathi blows by the accused party. Sarup Singh and Sawalia are not. accused in the case. ( 16 ) THE accused have thus taken a plea of self-defence. The burden to prove the plea of self-defence is on the accused persons but they have not examined any witness to support this plea. Sarup Singh and Sawalia are not. accused in the case. ( 16 ) THE accused have thus taken a plea of self-defence. The burden to prove the plea of self-defence is on the accused persons but they have not examined any witness to support this plea. Though Bharpai and Om Prakash or any member of his family would have been the witnesses to support this plea of the accused about the origin of the occurrence. ( 17 ) PUBLIC Witness-2 Ram Rati is the complainant. She was admitted in R. M. L. hospital and was examined by Dr. S. Soran Public Witness-9 at about 10. 25 A. M. on the day of occurrence vide MLC Ex. Public Witness9/b. He had found the following injuries on her person:- 1. A lacerated wound on the scalp on- vertex 3cm x 0. 5cm x ? 2. Abrasion on the right knee. ( 18 ) WHO inflicted these injuries to her? The defence plea is silent on it. It is not the case that these were self-inflicted by her. ( 19 ) PUBLIC Witness-3 Sundera who was present at the time of occurrence, which is not disputed by the accused, was also admitted in injured condition in R. M. L. hospital. She was also examined by Public Witness-9 at about 10. 25 A. M. vide MLC Public Witness-9/a and the doctor had found the following injuries:- 1. A lacerated wound of scalp on vertex 4cm x 0. 5cm x ? ( 20 ) PUBLIC Witness-5narsingh was admitted in Hindu Rao Hospital and was examined vide MLC Ex. Public Witness21/a by Dr. Rajesh Aggarwal on the same day at about 11. 30 A. M. and the following injuries were found on his person:- 1. CLW 1-1/2" x 1/2" x 1/8" on scalp in the parietal region. 2. Swelling and tenderness of right hand dorsum. 3. Tenderness of left side of the chest. 4. A linear contusion about 4" x 1/2" on left thigh. 5. Tenderness on left scalpular region 1/2"x1/8"x 1/8" on left index finger. ( 21 ) PUBLIC Witness-6 Jai Karan was also admitted in Hindu Rao Hospital and was examined by Dr. Rajesh Aggarwal vide MLC Ex. Public Witness 21/b on the same day at about 11. 30 A. M. and the following injuries were found on his person: 1. Inverted y shaped wound (CLW) on forehead above 1" left eye. ( 21 ) PUBLIC Witness-6 Jai Karan was also admitted in Hindu Rao Hospital and was examined by Dr. Rajesh Aggarwal vide MLC Ex. Public Witness 21/b on the same day at about 11. 30 A. M. and the following injuries were found on his person: 1. Inverted y shaped wound (CLW) on forehead above 1" left eye. bleeding (as per diagram shown in MLC ). 2. CLW 1/2" x 1/2" x 1/8" on right arm. ( 22 ) ACCORDING to defence plea Ram Kishan Raghubir. Randhir, Daya Nand Jagan and Bharpai were given beatings and injured and after that: "surat Singh and Sawalia came with lathis and in order to save and rescue them inflicted lathi blows to Zile Singh and Sarda rsingh and others. . . . ? ( 23 ) ACCUSED Raghubir, Ram Kishan. Randhir and Daya Nand were admittedly present at the spot at the time ofoccurrence. The occurrence took place in front of their house. According to them they had assembled or arrived there on hearing the outcries. After 5-6 members of the complainant party had assembled there duly armed with lathis and jelly and in aggressive mood and had even given beatings to Bharpai and Jagan and Jagan had taken shelter in the house of Om Prakash after being beaten, these persons would not have reached there unarmed like spectators when lathis would be easily available in their nearby house. They were strong enough to repulse any attack by the complainant party. Had they been unarmed and were stranded and the complainant party were the aggressors, they would not have gone scot free only with minor injuries they suffered. By that time the complainant party had not received any injury according to them. Surte and Sawalia are not shown to have received any injuries. It is highly improbable and cannot be believed that Surat Singh and Sawalia would have escaped unharmed without being injured at all at the hands of the complainant party in this occurrence after they had joined the fray. Sawalia is the father of accused Jagan and Bharpai whereas Surat Singh is the nephew of Sawalia as deposed by Public Witness-2 and other accused are their close relations. Sawalia is the father of accused Jagan and Bharpai whereas Surat Singh is the nephew of Sawalia as deposed by Public Witness-2 and other accused are their close relations. In such cases on occasions, the general tendency is to implicate innocent persons also along with the culprits but there is no reason why Sawalia and Surat Singh, if it were they who had actually inflicted the fatal injuries to Zile Singh and Sardarsingh, would not have been implicated as accused persons in the case. This is against human conduct that an injured person in any case would substitute a wrong person for the actual assailants. This sole circumstance inspires confidence and lend credence in the testimony of 4 eye witnesses who were also injured in this occurrence. There is no witness to support the plea of self-defence. This defence plea has also not been put to Public Witness-5 Narsingh and Public Witness-6 Jai Karan in their cross- examination. They had also not lodged any FIR or complaint. In the circumstances, the defence plea that it were Sawalia and Surat Singh who had reached there and had given fatal blows to Zile Singh and Sardar Singh. cannot be believed. ( 24 ) FURTHER, according to this defence plea Bharpai was waylaid by Ram Rati and Sundera. They abused her and Sundera gave her beatings and on hearing her outcry Jagan, her brother, came to her rescue and simultaneously Narsingh also came there armed with lathi and gave beating to Jagan and on this Jagan ran away and took refuge in the house of Om Prakash. One day earlier Jagan had given beating to Sardar Singh aged about 40 years and the occurrence of 16. 1. 83 is apparently a sequel of that earlier incident. If his sister was in trouble and distress, Jagan would not have run away so easily without taking care of her. Jagan was not admitted in the hospital for injuries that may have been caused to him in this occurrence. Obviously, he was not so seriously injured by the alleged attack of Narsingh that he would not have faced Narsingh if the latter had reached there, as alleged. Jagan was not admitted in the hospital for injuries that may have been caused to him in this occurrence. Obviously, he was not so seriously injured by the alleged attack of Narsingh that he would not have faced Narsingh if the latter had reached there, as alleged. Jagan would not have run away and taken refuge in the house of Om Prakash and if so, he would have returned back forthwith to rescue her sister after taking some precautionary measures if he was unarmed and would not have remained closed behind doors there. He must also have been aware that 4 persons of his party, namely. Randhir, Raghubir, Daya Nand and Ram Kishan were also present at the spot or near the spot. The defence plea about the origin of occurrence as well as the self-defence plea in the circumstances, cannot be said to be bonafide or has any merit and has been rightly disbelieved by the trial Court. ( 25 ) PUBLIC Witness-2 Ram Rati, as already noticed, has deposed, that Zile Singh was on way for going for nature s call (obviously, she so guessed because it was morning time in winter season), accused Jagan, Ram Kishan and Randhir came from their house armed with lathis and waylaid him. Two of them, Ram Kishan and Randhir caught hold of him from both hands while Jagan gave him lathi blow from behind at his head with force as a result of which he fell down and died almost instantaneously. she and her husband Sardar Singh deceased were standing outside their house and on seeing Zile Singh having been so waylaid, they ran to his rescue raising shouts. Then two other accused Daya Nand and Raghubir also came out from their house armed with lathis. Ram Kishan. Randhir and Raghubir gave several lathi blows to Sardar Singh while Daya Nand inflicted injuries to Ram Rati with lathi blows. Her sister Sunders, brother-in-law Jai Karan and Narsingh also reached there to rescue them which was natural. Sarup Singh also came there from this house and he also hit Sundera with lathi on her head. Ashok had also come with Sarup Singh and then Ashok gave lathi blows to Jai Karan and further Ashok, Sarup Singh and Raghubir gave lathi blows to Narsingh. Sarup Singh also came there from this house and he also hit Sundera with lathi on her head. Ashok had also come with Sarup Singh and then Ashok gave lathi blows to Jai Karan and further Ashok, Sarup Singh and Raghubir gave lathi blows to Narsingh. Except the defence plea noticed earlier and disputing place of occurrence nothing of substance was elicited in her cross-examination on this aspect. ( 26 ) PUBLIC Witness-3 Sundera. who is also injured, has corroborated Public Witness-2 in material particulars. She has deposed that on that day at about 8 A. M. she was coming back home after disposing of cow-dung. At that time Jai Karan was accompaning her. She saw Ram Rati and Sardar Singh suddenly running from the corner of their house, She followed them running. She saw Ram Kishan and Randhir having caught Zile Singh from both hands while Jagan gave a lathi blow from behind on his head and when he fell down these accused further gave lathi end thrusts to him. Then Daya Nand and Raghubir also came from the house of the Raghubir armed with lathis and accused Ram Kishan. Randhir and Raghubir gave lathi blows to Sardar Singh and Daya Nand hit Ram Rati on her head with lathi. Sarup Singh also reached there along with Ashok both armed with lathis and that Ashok and Raghubir hit. Jai Karan with lathis whereas Raghubir, Ashok and Sarup Singh hit Narsingh with lathis. She was also injured in the occurrence and was admitted in the hospital. She is an eye witness of the occurrence. Similar suggestions about defence plea were put to her also which she denied. There is nothing of substance elicited from her also about the. occurrence and to show that these accused had not inflicted injuries on her person and on persons of Public Witness2, Public Witness-5 and Public Witness-6 and the two deceased. She was admitted in R. M. L. hospital and her statement was recorded there. Zile Singh had died on way to hospital whereas Sardar Singh had suffered serious injuries to which he succumbed by 4/4. 30 P. M. same day. She was admitted in R. M. L. hospital and her statement was recorded there. Zile Singh had died on way to hospital whereas Sardar Singh had suffered serious injuries to which he succumbed by 4/4. 30 P. M. same day. She and Ram Rati both were injured, and seeing the condition of two of the deceased who were their close relations, they must be in pain and great agony and would have no occasion to deliberate and confabulate about the nature of occurrence and the role of accused persons. Public Witness-2 and Public Witness-3 also had no occasion to meet, discuss and confabulate with other injured Narsingh Public Witness-5andjai Karan Public Witness-6 as both of them had remained behind and were removed from the spot to Hindu Rao Hospital. Her testimony suffers from no infirmity on material aspects and is reliable, cogent and trustworthy. ( 27 ) PUBLIC Witness-5 Narsingh is also one of the injured and was admitted in Hindu Rao Hospital. Deceased Sardar Singh was his nephew and Zile Singh was his brother. He has deposed that he was present in his house at about 8 A. M. when he heard loud voices of Sundera and Ram Rati and on hearing their voices, he reached near the house of Siri and found Zile Singh lying in the street. Randhir, Jagan and Ram Kishan were giving him thrusts with lathi ends. Sardare and Ram Rati also reached there and Ram Kishan gave a lathi blow on the head of Sardare while Daya Nand gave lathi blow on the head of Ram Rati and then Randhir and Raghubir also assaulted both Sardare and Ram Rati with lathis and in the meanwhile, Jai Karan and Sundera also reached there and intervened. Accused Sarup Singh gave lathi blow on the head of Sundera and Ashok gave lathi blow on the head of Jai Karan and when he himself rushed forward to intervene, Ashok, Sarup and Raghubir and also Jagan, Ram Kishan, Randhir and Daya Nand assaulted him with lathis on his head and person; he fell down and while so lying down all the accused again assaulted him with lathis. He was confronted with his police statement about certain facts which are not very material about the occurrence and the injuries. He has not been cross-examined on his version about the assaults by these accused persons. He was confronted with his police statement about certain facts which are not very material about the occurrence and the injuries. He has not been cross-examined on his version about the assaults by these accused persons. The defence plea put to Public Witness-2 and Public Witness-3 has not been put to this witness excepta bald suggestion that his party was the aggressor. This also shows that the defence plea was not bonafiie. He has also. thus. corroborated Public Witness-2 in material particulars. ( 28 ) PUBLIC Witness-6 Jai Karan who is also injured and was treated in Hindu Rao Hospital has deposed that he was posted at PS connaught place as constable and had attended night duty upto 5 A. M. on 16. 1. 83; at about 8 A. M. when he reached near the house of his brother Sardar Singh; he saw his father (Zile Singh) being held from his hands by accused Randhir and Ram Kishan and Jagan giving lathi blow on the head of Zilesingh as a result of which he fell down and then Jagan, Ram Kishan and Randhir gave thrusts blows with lathis ends. Sardar Singh and Ram Rati raised alarm "budha Mar diya" and when Sardar Singh tried to lift Zile Singh, Daya Nand and Raghubir came out of the house of Raghubir armed with lathis. Daya Nand gave lathi blow on the head of Ram Rati, Ram Kishan gave lathi blow on the head of Sardar Singh and Randhir and Raghubir gave lathi blows on the person of Sardarsingh and when he and Sundera rushed to rescue them, accused Sarup Singh hit a lathi blow on the head of Sundera and Ashok hit a lathi blow on the left side of his forehead and when Narsingh came forward to save them, Sarup Singh, Ashok and Raghubir assaulted him with lathis. In cross-examination, it is suggested that Ashok and Sarup Singh were not present in the fight and the fight had taken place outside the house of Siri and not Raghubir s house and that they were aggressors and the accused had acted in self-defence which he denied. His presence is not disputed nor it is disputed that the injuries were caused by the accused persons to deceased Zile Singh, Sardar Singh and Ram Rati, Sundera and to him. His presence is not disputed nor it is disputed that the injuries were caused by the accused persons to deceased Zile Singh, Sardar Singh and Ram Rati, Sundera and to him. The defence plea as put to Public Witness-2 and Public Witness- 3 has also not been put to him. He has also, thus, corroborated Public Witness-2 in material particulars. ( 29 ) PUBLIC Witness-2, Public Witness-3, Public Witness-5 and Public Witness-6 have also been corroborated by medical evidence about the injuries caused to them and to deceased Zile Singh and Sardar Singh. Being injured, they are eye witnesses of the occurrence. In the absence of valid reasons which are not shown to exist; there is no reason to disbelieve them. They have been believed by the trial Court. We do not find any ground to take a different view about the occurrence. ( 30 ) LEARNED counsel for the appellants has contended that the place of occurrence is not near the house of Raghubir but in front of house of Siri and it is only from that spot sample blood and sample earth had been picked up by 1. 0. and if the occurrence had taken place in front of the house of Raghubir and it is admitted by Public Witnesss that blood of the two deceased persons had fallen on the ground, sample blood would have been seized from there and that in the F. I. R. also the place of occurrence being near the house of Raghubir is not mentioned. Learned counsel for the State had supported the findings of the trial Court. ( 31 ) PUBLIC Witness-2 and Public Witness-3 had deposed that they along with Zile Singh. Sardar Singh and Sundera were taken to RML hospital in a car. They were admitted there and examined by Public Witness-9 at about 10. 25 A. M. vide MLCs Public Witness-9/b and Public Witness-9/a. Narsingh and Jai Karan were admitted in Hindu Rao Hospital and examined there at about 11. 30 A. M. and their other relations would have also gone to the hospital to see the conditions of the injured. And from the side of the accused Raghubir, Randhir, Ram Kishan and Dayanand were admitted in R. M. L. hospital. Obviously, Bharpai. Jagan. Saw alia, Surte and Ashok besides others had remained behind. 30 A. M. and their other relations would have also gone to the hospital to see the conditions of the injured. And from the side of the accused Raghubir, Randhir, Ram Kishan and Dayanand were admitted in R. M. L. hospital. Obviously, Bharpai. Jagan. Saw alia, Surte and Ashok besides others had remained behind. It would not have been difficult for the acused party to remove blood and wash the place where blood was lying outside the house of Raghubir accused in their absence. Public Witness-19. constable Wazir Singh has deposed that he had reached the spot at 4. 30 P. M. for taking photographs and he had taken photographs of the walls having blood stains nearthe house of Siri. Public Witness-20 ASI Shiv Charan has deposed that on receipt of copy of DD- 9 (Public Witness 13/a) when he reached the spot, the injured persons from both sides had already been removed. Public Witness-32 Inspector Malik, 1. 0. had deposed that when he reached the spot from the hospital interalia the photographer Wazir Singh had met him at the spot. Obviously, he would have reached there at about 4. 30 P. M. when the photographer had reached there. He has deposed that he had inspected the site and found blood on the house of Siri and he picked up blood by taking out plaster pieces from the wall ofthe house of Siri and also sample plaster from that wall. He, obviously, had not found blood lying in the street even near the house of Siri which would be available if itwas the place of occurrence and Zile Singh and Sardarsingh had fallen on the ground there. Public Witness-32 had also seized quilt (P-6) and khase (P-7 ). The quilt (P-6), according to Public Witness-6 Jai Karan, belongs to his father and was blood stained whereas Khase Ex. P-7 belongs to Sardar Singh which also was blood stained. The quilt and khase would have soaked blood from the ground or blood would have fallen on them as the deceased would have clothed themselves with these clothes as it must be a cold morning on 16. 1. 83. Public Witness-5 Narsingh has deposed that after receiving lathi blows on his head he fell down nearthe corner of Siri s house and while so lying, the accused had again assaulted him. The blood picked up by 1. 0. 1. 83. Public Witness-5 Narsingh has deposed that after receiving lathi blows on his head he fell down nearthe corner of Siri s house and while so lying, the accused had again assaulted him. The blood picked up by 1. 0. from the wall was obviously blood of Narsingh and not of two deceased persons. In the circumstances, mere non-availability of blood in the street in front of the house of Raghubir, would not necessarily show that the place of occurrence would not be in front of his house. Public Witness-2. Public Witness-3 and Public Witness-6 have deposed that the place of assault on Zile Singh was in front of the house of Raghubir and the accused had also come from the house of Raghubir and Public Witness-5 has also deposed that both Zile Singh and Raghubir had fallen in front of house of Raghubir. In the FIR it is mentioned that Zile -Singh was assaulted by Randhir, Ram Kishan and-Jagan in front of their poli and had come out from their house. Randhir. Ram Kishan. Dayanand and Raghubirare real brothers and it is not alleged that they had any other house or poli in that street. Learned trial Court has considered the material on record and circumstances ofthe case and has held that the place of occurrence is in front of the house of Raghubir. This finding cannot be said to be unreasonable and unjustified. This contention, thus. has no merit. ( 32 ) "learned counsel for the appellant has then contended that there are variations and contradictions in the statements of Public Witness-2. Public Witness-3. Public Witness-5 and Public Witness-6 which make them unreliable. Learned counsel for the State has controled that there are no material contradictions which may affect the testimony of the witnesses. ( 33 ) LEARNED counsel for the appellants has pointed out that according to Public Witness- 2. Jai Karan and Narsingh came at the spot after beating was given to Zile Singh. Whereas Public Witness-5 and Public Witness-6 have stated that they had seen Ram Kishan, Jagan and Randhir giving beatings to Zile Singh. Public Witness-2 has not stated that Public Witness-5 and Public Witness-6 had come after beatings were given to Zile Singh. Jai Karan and Narsingh came at the spot after beating was given to Zile Singh. Whereas Public Witness-5 and Public Witness-6 have stated that they had seen Ram Kishan, Jagan and Randhir giving beatings to Zile Singh. Public Witness-2 has not stated that Public Witness-5 and Public Witness-6 had come after beatings were given to Zile Singh. Her statement shows that Public Witness-5 and Public Witness-6 had reached there during occurrence arid both Public Witness-5 and Public Witness-6 have deposed that they had seen RamKishan Randhir and Jagan giving thrusts with lathis. Public Witness- 5 has not claimed that the lathi blow even on the head of the Zile Singh was seen by him. There is no contradiction in their statements. Some other apparent omissions/contradictions have also been elicited in the cross examination of Public Witnesss However, the omissions and contradictions are not on material particulars and these contradictions do not affect the core and substance of the prosecution case to discard the testimony of the witnesses about the occurrence and are not material contradictions. When evidence of Public Witness-2, Public Witness-3, Public Witness-5 and Public Witness-6 has been found reliable much importance could not be given to minor discrepancies, if any. As held in State of U. P. V. M. K. Anthony, 1985 SC 48, the appellate Court should not ordinarily interfere with the finding on this ground. To similar effect are the observations made in Dharam Das V. State of U. P. , 1973, SC 2195 where it was held that exaggerations or falsehood on points which do not touch the core of prosecution story are not to be given undue importance provided there is trustworthy evidence supporting the real substance and core of the prosecution case. We do not find any infirmity in the approach of the trial Court on this aspect. This contention also has no force. ( 34 ) THEN it is contended that Dharmvir who had removed the four injured to the hospital, Jai Prakash who had lodged DD 9/a and Bimla sister of Public Witness-1 are material witnesses of this occurrence and they have not been examined and this is fatal to the prosecution case; whereas learned counsel for the State has contended that these persons were not present there and had not witnessed the occurrence and so are not material witnesses. ( 35 ) PUBLIC Witness-5 has deposed that Jai Prakash is the brother-in-law of Jai Karan while Dharmvir is Sandu of Sardar Singh. It has not been sugggested to any Public Witness that they or either of them were present at the spot at the commencement of occurrence or they had participated in it. Public Witness-2 has deposed that Dharamvir had come to their house to meet them and had reached after the occurrence. Public Witness-3 has also deposed that Dharamvir had reached the village after the occurrence. No further cross- examination is directed on this aspect. Public Witness-3 has further deposed that at the time of occurrence Jai Prakash had gone out for easing and she had not seen him there. On this also no further cross-examination is carried. This shows that these are not witnesses of occurrence and had they been present, it cannot be said that they would have remained unhurt. They, in the circumstances, are not material witnesses and their non-examination is of no consequence. Regarding Bimla, the contention is that her brother Public Witness-1 must be present in the village where a conspiracy was hatched by the complainant party and so his sister Bimla should have been examined. Learned counsel for the State has contended that Public Witness-1 was not cross-examined on this point and so no such inference can be drawn. ( 36 ) PUBLIC Witness-1 Suraj Bnan has deposed that his sister Bimla had come to his house in village Bhadurgarh after the occurrence and informed him about the occurrence and then he had come to Delhi, visited the injured in the hospital and had identified the dead body of Zile Singh. He was not cross-examined at all. His testimony remains unchallenged and so it cannot be said that any conspiracy was hatched with his assistance or he had visited Bimla earlier. Bimla, in the circumstances, is not a material witness. This contention, thus, also has no force. He was not cross-examined at all. His testimony remains unchallenged and so it cannot be said that any conspiracy was hatched with his assistance or he had visited Bimla earlier. Bimla, in the circumstances, is not a material witness. This contention, thus, also has no force. ( 37 ) LEARNED counsel for the appellants has then contended that the injuries , found on the person of accused Ram Kishan were grievious and Injuries caused to the accused persons have not been explained by the prosecution and so the prosecution has suppressed the genesis and origin of the occurrence and this renders the defence plea of self-defence probable and renders the prosecution case unbelievable even if the accused have failed to prove the plea of self-defence. He has relied on Laxaman Singh and others V. State of Bihar, AIR 1976 SC 2263 , Jagdish V. State of Rajasthan and AIR 1979 SC 1010 and Seriyal Vadavier V. State of Tamil Nadu, AIR 1987 SC 1289 and Sarwan Singh V. State of Punjab, AIR 1957, SC 637 to contend that mere suspicion cannot take place of proof and there is vast difference between "may be true" and "must be true" and the prosecution has failed to discharge the burden cast on it to prove its case. . Whereas learned counsel for the State has contended that it is not the invariable rule that prosecution is bound to explain the injuries caused to the accused persons. It depends on the facts and circumstance of each case. The evidence in this case is trustworthy, and acceptable-and has been believed by the trial Court and so prosecution case cannot be thrown on this ground. He has relied on Paras Nath Singh V. State of Bihar, 1988 SCC (Criminal) 280, 1995 JCC 208 and Jit Singh V. State 1995 Recent Criminal Reports 149. He has further contended that in this case FIR was lodged. promptly and this also renders the prosecution case trustworthy and reliable: he has relied on Dudhnath Pande V. State ofu. P. 1981 SCC (Cri)379. He has further contended that in this case FIR was lodged. promptly and this also renders the prosecution case trustworthy and reliable: he has relied on Dudhnath Pande V. State ofu. P. 1981 SCC (Cri)379. ( 38 ) A number of cases taking the view that where the injuries sustained by the : accused are not explained by the prosecution that will affect the prosection case have been considered in the case of Paras Nath Singh and in paras 18 and 19, (Page 289), the law has been laid down as under:- "upon a conspectus of the decisions mentioned above,we are of the view that the question as to the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the quilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the quilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the court in proof ofthe quilt ofthe accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person ofthe accused. As has been held in Munshi Ram case ( AIR 1968 SC 702 ) the burden of establishing the plea of private : defence is on the accused and the burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. It, therefore, follows that simply because the accused has received injuries in the same occurrence, it cannot be taken for granted that the deceased or the injured person was the aggressor and consequently, he had. to defend himself by inflicting injury on the deceased or the injured person. It, therefore, follows that simply because the accused has received injuries in the same occurrence, it cannot be taken for granted that the deceased or the injured person was the aggressor and consequently, he had. to defend himself by inflicting injury on the deceased or the injured person. " ( 39 ) THE accused have taken the plea of exercise ofthe right of self-defence, the. burden of proof of which was on them. They have not led any evidence, nor the material on record gives rise to any probable inference to support this plea. The prosecution case has been found trustworthy and acceptable and mere failure to explain the injuries on the accused would not create any infirmity in the case. ( 40 ) IN Bhagwan V. State of Maharashtra, AIR. 1974 SC 21. also it was held that there is no hard and fast rule that simply because the prosecution witness did not explain the injuries on the person of the accused, their entire evidence should be discarded. In the said case. even the explanation given for the injuries of the accused was not found satisfactory. Moreover, in this case it cannot be said that the injuries of the accused persons remained unexplained. ( 41 ) THE following injuries have been found on the persons of accused Ram Kishan, Randhir, Raghubir. Daya Nand and Jagan and Bharpai who is not accused in this case:- Raghubir (MLC Ex. 22/a) 1 CLW left frontal region 2" x 1" in size. 2. CLW right parietal region 1" x 0. 5" in size. 3. Swelling on the left wrist. Ram Kishan (MLC Ex. Public Witness-22/b) 1. CLW left parietal region 2" x 1" in size. Dava nand (MLC Ex. Public Witness-22/d) 1. Abrasion on the left forearm. 2. Swelling and tenderness on the left forearm. Bharpai (MLC Ex. Public Witness-22/e) 1. Small CLW at the right lower end of the thigh. 2. Abrasion on both the legs. 3. Abrasion on left forearm. Randhir (MLC Public Witness-9/c) 1. Lacerated wound on scalp 4cm x 0. 5cm x ? deep. 2. Lacerated wound on cheek two in number, size 2 cm x 0. 5"x ? deep. 1 cm x o. 5 cm x ? deep. 2. Abrasion on both the legs. 3. Abrasion on left forearm. Randhir (MLC Public Witness-9/c) 1. Lacerated wound on scalp 4cm x 0. 5cm x ? deep. 2. Lacerated wound on cheek two in number, size 2 cm x 0. 5"x ? deep. 1 cm x o. 5 cm x ? deep. Public Witness-6 Jai Karan has deposed that: "the assailants received minor injuries at our hands with lathis when we had interfered" ( 42 ) THE suggestion put to him is as under: "it is incorrect to suggest. . . . . . . . or that we were the aggressors. . . . . . . . . It is also incorrect to suggest. . . . . . that we belaboured the accused and they acted in self-defence. " ( 43 ) HE is a constable in Delhi police and is aged about 30 years. He had reached the spot during the occurrence and had seen Zile Singh. Sardar Singh and Ram Rati being assaulted from some distance. He would not have taken the risk of going to the spot unarmed. The house of Sardar Singh was on the way. He must have obtained a lathi on the way and would not have been a mere spectator there when his near relations were being attacked with lathis. ( 44 ) SIMILARLY. Narsingh had reached the spot after hearing loud voices of Ram Rati and Sundera from his house. He must have visualised the situation before he rushed to face the situation and would not have entered the fray unarmed. It cannot be said that he would not have inflicted injuries on the accused or some of them who attacked him. It is not the case of the accused that Public Witness-5 was unarmed. Public Witness-2 has also deposed that Jai Karan was carrying a danda in his hand and Narsingh was also carrying lathi in his hand when the accused persons attacked them and they also hit them back in order to protect them selves. She had also so stated in her FIR Ex. Public Witness- 2/a. ( 45 ) RAGHUBIR accused has received three injuries. Ram Kishan one injury, Daya Nand 2 injuries, Randhir 2 injuries and Bharpai one small CLW and 2 abrasions. She had also so stated in her FIR Ex. Public Witness- 2/a. ( 45 ) RAGHUBIR accused has received three injuries. Ram Kishan one injury, Daya Nand 2 injuries, Randhir 2 injuries and Bharpai one small CLW and 2 abrasions. It cannot be said that these injuries could not be caused by Public Witness-5 and Public Witness-6 to counter the attack when they had come to the rescue of Zile Singh etc. ( 46 ) LEARNED counsel for the appellants has then contended that as per evidence of Dr. S. Soren (Public Witness_9) injuries found on the person of Randhir could have been caused by jelly which has not been explained and this probabilises the defence plea that Ram Rati was armed with jelly. Learned counsel for the State has contended that the Doctor is not categorical that this injury could be caused only by a jelly and mere probability evidence in view of the direct evidence does not prove this contention. He has relied on Maghar Singh V. State of Punjab 1987 SCC (CRI) 403. ( 47 ) AS observed in Mayur Panabhai Shah V. State of Gujrat, AIR 1983 SC 66 . the evidence of doctor has to be appreciated like that of any other witness and there is no presumption that doctor s opinion is always correct. ( 48 ) DR. S. Soren has deposed that he found the following injuries on the person of Randhir Singh vide MLC Ex Public Witness-9 c 1 Lacerated wound on scalp 4cm x 0. 5cm x 7 deep 2 lacerated wound 0n check 2 in number size 2cm x 0 5cm x ? deep 1cm x 0. 5cm x ? deep ( 49 ) IN cross examination he has stated that injury no. 1 could be caused by a lathi keeping in view the length of the injury while injury no. 2 is more likely with jelly than a lathi keeping in view the size of the injury. He has also stated that lathi blow generally causes contusion. But both these injuries are lacerated wounds. All these , injuries are of same width of 0. 5cm and their depth have not been measured. The only difference is that length of injury on head is 4cm long whereas on cheek the length is 2cm and 1 cm. He has also stated that lathi blow generally causes contusion. But both these injuries are lacerated wounds. All these , injuries are of same width of 0. 5cm and their depth have not been measured. The only difference is that length of injury on head is 4cm long whereas on cheek the length is 2cm and 1 cm. The scalp is comparatively flat which will take full impact of lathi blow whereas cheek is soft. elastic and of lesser size and it is not necessary that impact of lathi blow on cheek will be of same size as on scalp. Moreover jelly has more than one spike. It is more probable that its impacts will be of same length. Whereas in this case length of 2 injuries on cheek are different i. e. one is 2cm and one 1 cm. Since the width of all the three injuries is 0. 5 cm which shows that these injuries could more probably be caused by same weapon i. e. lathi blow like injury no. 1. Moreover, doctor has not completely excluded the possibility that injury No. 2 could not be caused by lathi. In cross-examination of Public Witness-2, at one place, it is suggested that she gave jelly blow to Raghubir and at another place it is suggested that jelly blowwasgiven by herto Randhir. No suggestion has been put to Public Witness-5 and Public Witness-6 that Ram Rati weilded a jelly or gave jelly blowto Randhir. On the other hand, Public Witness-6 has deposed that his party had also caused injuries to accused with lathis to which there is no cross-examination. In the circumstances, this evidence of doctor is not of any help to prove that jelly was necessarily used. This contention thus, has no force. ( 50 ). Learned counsel has then contended that according to prosecution case, the incident of 15. 1. 83 was compromised and in view of this there would be no occasion for the accused to have resorted to violence and so motive is not proved. Learned counsel for the State has contended that the case of the accused is that deceased Sardar Singh had abused and misbehaved with two sisters ofjagan and thereafter Zilesingh had also abused the accused persons. Obviously, the accused Jagan and his party wanted to teach a lesson to Zile Singh also. Learned counsel for the State has contended that the case of the accused is that deceased Sardar Singh had abused and misbehaved with two sisters ofjagan and thereafter Zilesingh had also abused the accused persons. Obviously, the accused Jagan and his party wanted to teach a lesson to Zile Singh also. ( 51 ) ACCUSED Jagan and 4 other accused persons were not party to the compromise and Sawalia and Suite who were party to the compromise have not joined the accused in the occurrence. Apparently, the accused might not have been satisfied with the compromise. Their own case is that accused Jagan had given 2- 3 slaps to Sardar Singh on 15. 1. 83 for the reasons that the latter had abused the sisters of Jagan as the cattle of the accused were allowed to enter into his grtwar after removing the hedges by the sisters of Jagan. Jagan and his two sisters had obviously taken law in their hand and Jagan appears to be a hot headed pers,on. The accused persons would have felt offended and insulted by the abuses of Zile Singh. ( 52 ) IN any case. as heldin Baha/singh V. State ofharyana AIR 1976 SC 2032 even if the genesis or the motive of the occurrence was not proved, the ocular account of the witnesses as to the occurrence could not be discarded only on that account, if otherwise it was reliable. ( 53 ) IT was then contended on behalf of the appellants that neither Ashok Kumar is named nor any role is imputed to him in the FIR and he and Sarupublic Witnessere not present at the time of occurrence so their conviction is not valid and justified which is denied by learned counsel for the State. ( 54 ) NO doubt the name of Ashok Kumar is not mentioned in the FIR and in FIR he is described as "son-in-law of Sawalia". This relationship is not disputed by the accused. It is also not correct that no role is imputed to him about the occurrence. Public Witness-2 Ram Rati has deposed that as soon as Sundera and Jai Karan reached the spot, Ashok and Sarup had come from the same house armed with lathis. Ashok Kumar had given lathi blows to Jai Karan and Narsingh. It is also not correct that no role is imputed to him about the occurrence. Public Witness-2 Ram Rati has deposed that as soon as Sundera and Jai Karan reached the spot, Ashok and Sarup had come from the same house armed with lathis. Ashok Kumar had given lathi blows to Jai Karan and Narsingh. In cross-examination, she has stated that her sister Sundera had told her the name of Ashok Kumar who was the son-in-law of Sawalia when they were in the hospital. It was contended on behalf of appellants that as Public Witness-2 did not know him by name and no Test Identifiction Parade was held, so her testimony in the Court about the identity of Ashok is not reliable. ( 55 ) TEST Identification Parade is not the only method to establish the identity of the person as culprit. Public Witness-3 has deposed that Ashok had come from the same house armed with lathi and he had hit Jai Karan and Narsingh. No suggestion has been put to her about her knowledge about the identity of Ashok Kumar. Obviously, she has identified him as Son-in-law in her statement to the police. Thus, she knew him by face eartier. ( 56 ) ROLE has also been assigned to Ashok Kumar in the FIR where it is stated that son-in-law of Sawalia, whom she did not know by name but could recognise by face, had come along with Sarup armed with lathis and they along with other accused had given beatings with lathis to Jai Karan and to Narsingh who had come to their rescue. Public Witness-3 has deposed that Ashok Kumar had hit Jai Karan with lathi. Public Witness-5 Narsingh had also deposed that Ashok Kumar had given lathi blows to Jai Karan and Public Witness-6 Jai Karan has also deposed that Ashok Kumar had given lathi blows on the left side of his forehead and had also assaulted Narsingh. He has been corroborated by medical evidence i. e. hismlc. He was examined in Hindu Rao Hospital by doctor Rajeshaggarwal vide MLC Ex. Public Witness21/bwho had found 2 injuries on him which have been caused by blunt weapon. Though it is suggested to Public Witness-6 that accused Ashok was not present there but there is nothing on record to show that accused Ashok could not have been present at the time of occurrence for any reason. Public Witness21/bwho had found 2 injuries on him which have been caused by blunt weapon. Though it is suggested to Public Witness-6 that accused Ashok was not present there but there is nothing on record to show that accused Ashok could not have been present at the time of occurrence for any reason. There is no reason to disbelieve Public Witness-2. Public Witness-3. Public Witness-5 and Public Witness-6 especially when Public Witness-6 Jai Karan is a victim of his assault. Hence, we hold that the Additional Sessions Judge was right in his findings on facts that the prosecution has been able to prove beyond shadow of reasonable doubt that the occurrence had taken place in the manner as alleged by the prosecution. ( 57 ) THE question which needs decision now is as to what offences have been committed by the accused persons. ( 58 ) AT the outset, we may mention that it is not possible to draw any inference from the facts established in this case, as discussed above, that the appellants had constituted any unlawful assembly for committing the aforesaid offences so that the provisions of Sections 147 to 149 of the Indian Penal Code could be invoked against them. There is no evidence present in the case from which any inference can be drawn that all the appellants had assembled together and had formed any illegal object before the occurrence took place and it is also not possible to draw any legal inference that all the appellants, during the course of the occurrence in question, had formed any common object. So. the appellants could not have been convicted of any offence punishable under Section 148 I. P. C. ( 59 ) ZILEY Singh had been given fatal injuries when he was assaulted at by a lathi by Jagan, appellant and other two appellants namely Ram Kishan and Randhir who were also armed with Lathis had not only caught hold of Ziley Singh when he was given a fatal blow but after Ziley Singh had fallen down, had continued to thrust lathi ends on his person from which legal inference is obvious that all the three had shared the common intention to cause the murder of Ziley Singh and they are guilty of the offence punishable under Section 302 read with Section 34 I. P. C. and the other appellants who came out subsequently, in our view. had not formed any such common intention with the said three appellants for causing murder of Ziley Singh and thus, they are not guilty of committing murder of Ziley Singh. We hold so. ( 60 ) SARDAR Singh, (since deceased) and his wife Ram Rati had come forward on witnessing the assault of Ziley Singh and the appellants Ram Kishan, Randhir and Raghubir had come forward and gave numerous lathi blows to Sardar Singh causing his death. From these facts, it is borne out that these three appellants had shared the common intention to cause murder of Sardar Singh and thus they are guilty of offence punishable under Section 302 read with Section 34 I. P. C. and other appellants, who had not joined in this assault, could not be considered to have shared any common intention with the said appellants for causing death of Sardar Singh. We hold accordingly. . ( 61 ) APPELLANT. Daya Nand had given lathi blows on person of Ram Rati causing simple injuries, so he is guilty of this individual act. The other appellants had not shared any common intention with him for causing this simple injury to Ram Rati and we hold that only Daya Nand is guilty of the offence punishable under Section 323 I PC. having caused simple hurt to Ram Rati and other appellants are not guilty of the said offence. ( 62 ) ASHOK and Sarup. appellants, had later on come out armed with lathis. Raghubir. Ashok and Sarup gave lathi blows to Narsingh causing simple injuries to him. Because of the contradictions appearing in evidence, we have not accepted the part-statement of Public Witness-5 that Jagan. Ram Kishan. Randhir and Daya Nand had caused injuries to Narsingh. So. we hold only the appellants. Raghubir, Ashok and Sarup guilty of an offence punishable under Section 323 read with section 34 I. P. C. for causing simple injuries to Narsingh. ( 63 ) APPELLANT Ashok had given injuries also to Jai Karan. Although the doctor had opined his injuries to be grievous in nature but no sufficient reasons have been given by the doctor for opining his injuries to be grievous in nature. ( 63 ) APPELLANT Ashok had given injuries also to Jai Karan. Although the doctor had opined his injuries to be grievous in nature but no sufficient reasons have been given by the doctor for opining his injuries to be grievous in nature. So, we hold him guilty of an offence punishable under Section 323 I. P. C. for having caused simple injuries to Jai Karan and other apellants appear to have not shared any common intention with these appellants for causing the said injuries. So, the convictions of Randhir Singh. Ashok and Sarup for offence punishable under Section 308 read with Section 34 I. P. C. is not sustainable and only Ashok is guilty of having committed offence under Section 323 I. P. C. having caused simple injuries to Jai Karan. We hold accordingly. ( 64 ) LASTLY, Sarup Singh. appellant had given lathi blows to Public Witness-3 causing her simple injuries. So, he alone is guilty of offence punishable under Section 323 I. P. C. Other appellants have not shared common intention with him for causing the said injury. ( 65 ) WE. hence, allow these appeals partially and modify the convictions of the appellants rendered by the Additional Sessions Judge in the above manner and we also modify the sentences and award sentences of life imprisonment with a fine of Rs. 2. 000. 00 each and in default of payment of fine to undergo rigorous imprisonment for one year to appellants Jagan. Ram Kishan and Randhir under Section 302 read with Section 34 I. P. C. for having caused murder of Ziley Singh and also award similar sentences to appellants. Ram Kishan. Randhir and Raghubir under Section 302 read with Section 34 I. P. C for having caused murder of Sardar Singh and award sentence of six months simple imprisonment to appellants. Raghubir. Ashok and Sarup under Section 323 read with Section 34 I. P. C. for having caused simple injuries to Narsingh and sentence of six months rigorous imprisonment to appellant. Ashok for having caused simple injuries to Jai Karan under Section 323 I. P. C and also six months Rigorous imprisonment to appellant Sarup Singh for having caused simple injuries to Public Witness3 Sundra under Section 323 I. P C. ( 66 ) ALL other sentences awarded by the Additional Sessions Judge except for above modifications are set aside. Ashok for having caused simple injuries to Jai Karan under Section 323 I. P. C and also six months Rigorous imprisonment to appellant Sarup Singh for having caused simple injuries to Public Witness3 Sundra under Section 323 I. P C. ( 66 ) ALL other sentences awarded by the Additional Sessions Judge except for above modifications are set aside. The substantive sentences of the appellants Randhir. Ram Kishan, Ashok and Sarup shall run concurrently/the appellants are on bail. They shall undergo the unexpired term of their sentences and in case any of the appellants have already undergone the sentences imposed, they shall not now surrender. Other appellants shall immediately surrender for undergoing the sentences. ( 67 ) THE Additional Sessions Judge concerned shall take steps for compliance of this judgment