JUDGMENT : G.S.N. Tripathi 1. Accused Shiv Kumar Singh, Ram Manohar Singh. Shiv Sagar Singh, Indra Pal Singh and Ram Kishore Singh have been convicted by the learned IIIrd Addl. Sessions Judge, Fatehpur, vide his judgment and order dated 3.1.83 passed in S.T. No. 30/81 of that district. The accused Shiv Kumar Singh, Ram Manohar Singh and Shiv Sagar Singh have been sentenced to undergo one year's R.I. on a charge under Section 147, I.P.C. one year's R.I. on a charge under Section 323/149. I.P.C. .............and three years' R.I. on a charge under Section 307/149. Accused Shiv Sagar Singh and Indra Pal Singh have been ordered to undergo 2 years' R.I. on a charge under Section 148, I.P.C. Under other heads, they are similarly sentenced as other co-accused noted above. 2. The prosecution case started on the basis of F.I.R. lodged by Sri Krishna Singh, P.W. 1 at P. S. Ghazipur, distt. Fatehpur on 18.5.79 at 10.30 p.m. The incident is said to have taken place in the same evening at 5 p.m. The place of occurrence is 5 miles from the police station. It is alleged that on 18.5.79 the complainant's sons Shiv Lakhan Singh (P.W. 5) and Gyan Singh and grandson Captan Singh were returning after plucking mango fruits from their grove. At about 4 p.m., they reached in their bullock cart infront of the house of accused Shiv Kumar Singh. Shiv Kumar Singh and Ram Manohar Singh, armed with lathis, Shiv Sagar Singh, armed with a Pharsa, Indra Pal Singh, armed with a pistol and Ram Kishore Singh, armed with an axe, all of a sudden appeared on the spot. Ram Manohar Singh exhorted other co-accused to murder these persons. Indra Pal Singh fired at the sons and grandson of the complainant. But they lay down of the bullock cart and warded off the fire shots. They raised an alarm and wanted to run away. But the accused attacked them with axe, Pharsa etc. Hearing the alarm Gaya Prasad, Ganga Sagar, P.W. 3, Kali Charan and several other persons of the village arrived. The complainant's wife Smt. Kalawati, P.W. 2 and daughter Sheelwati rushed to the rescue of the complainant's sons. But the accused assaulted them as well with lathis. When the sons and grandson of the complainant tried to run away, they were fired at by Indra Pal Singh, accused. The complainant's wife Smt. Kalawati, P.W. 2 and daughter Sheelwati rushed to the rescue of the complainant's sons. But the accused assaulted them as well with lathis. When the sons and grandson of the complainant tried to run away, they were fired at by Indra Pal Singh, accused. But this time also, the shots went astray. But their marks were visible on the wall. Then in order to save the lives of his sons, and grandson, the complainant fired in the air. The accused escaped. The accused had thus caused injuries to the sons and grandson, wife and daughter of the complainant with Pharsa, axe, lathis etc. If the complainant would not have fired, these accused would have murdered the sons and grandson as well as wife and daughter of the complainant. On the basis of the written F.I.R., a chik was prepared and the injured persons were referred for medical examination. Gyan Singh was examined in the same night at 2.50 a.m. Lakhan Singh was examined at 3 a.m. Smt. Kalawati, P.W. 2 was examined at 3.45 a.m. The injuries of these persons have been noted by the learned Addl. Sessions Judge in the body of his judgment. Hence they are not being repeated. The Doctor P. Joshi, P.W. 4 has given an opinion that injuries of all the injured persons were caused by blunt weapons. There was no injury caused by firearm, axe or Pharsa. 3. The investigation was initially conducted by Sri S.B. Singh. But he could not do much before he himself was injured and hospitalised. Therefore, Sri Shyam Singh, P.W. 8 carried the investigation. He interrogated the witnesses and prepared the site plan. Shiv Lakhan gave him 6 pellets and said that they had fallen from a wall. Ultimately he laid the charge-sheet against the accused. 4. The prosecution examined P.W. 1 Sri Krishna Singh, the complainant. He has narrated the entire story as contained in the F.I.R. Additionally, he has said that there was a litigation between him and the accused and on account of this enmity, accused had caused these injuries. P. W. 2 Smt. Kalawati came out of her house after hearing an alarm and in order to rescue her sons, she proceeded towards them when the accused caused injuries to her and her daughter Sheelwati. P.W. 3, Shiv Kumar was at the house of Pt. Budhi Ram. P. W. 2 Smt. Kalawati came out of her house after hearing an alarm and in order to rescue her sons, she proceeded towards them when the accused caused injuries to her and her daughter Sheelwati. P.W. 3, Shiv Kumar was at the house of Pt. Budhi Ram. When he heard the alarm and fire shots, he rushed towards the place of occurrence and saw the accused committing the crime. Shiv Lakhan and others also wielded weapons in their self-defence. 5. P.W. 5 Shiv Lakhan has made a similar statement. 6. P.W. 4 Dr. P. Joshi has proved the injury report of the parties. P.W. 7 Dr. Harish Chandra Gupta has come to prove that the ulna bone of Shiv Lakhan had been fractured. 7. P.W. 6 H.C. Atiraj has proved the entry in the chik and G.D. 8. P.W. 8 is Sri Shyam Singh. I.O. The accused in their statement under Section 313, Cr. P.C. have generally denied the allegations against them. They have said that the prosecution side had plucked mangoes belonging to them. On protest, they caused the injuries to their side and the accused wielded the weapons in their self-defence. 9. Raghunandan Singh, who is the father of accused Shiv Kumar Singh, Ram Manohar Singh and Shiv Sagar Singh and grandfather of Indrapal Singh and Ram Kishore Singh had lodged the F.I.R. Ex. Kha 3 in the same evening at 9.45 p.m. in which he has arrayed Shri Krishna, Lakhan, Gyan Singh and Manna Singh as accused. He has alleged that there was a civil litigation going on between him and the accused Shri Krishna Singh (P.W. 1). The Munsif had issued an interim order against the accused aforesaid, preventing him from raising construction of his house. That had further infuriated the aforesaid accused. On 18.5.79 (the date of occurrence) Shri Krishna Singh, Shiv Lakhan and Manna Singh (son-in-law of Shri Krishna Singh) plucked the mango fruits from his grove. On learning about it, he questioned them as to why they had done so. Thereupon, the accused aforesaid assaulted him. Shri Krishna Singh and Manna had lathis, Shiv Lakhan had a gun. Others had lathis. On exhortation by the complainant Shri Krishna Singh to murder him, Indra Pal Singh and Ram Kishore (both accused in the present case) came there. They too were assaulted by the aforesaid accused. Thereupon, the accused aforesaid assaulted him. Shri Krishna Singh and Manna had lathis, Shiv Lakhan had a gun. Others had lathis. On exhortation by the complainant Shri Krishna Singh to murder him, Indra Pal Singh and Ram Kishore (both accused in the present case) came there. They too were assaulted by the aforesaid accused. But they succeeded in warding off fire shots except one minor scratch caused in the head of Indrapal Singh by a pellet. The witnesses came there. Thereafter the accused escaped. In self-defence, the complainant's side had also wielded weapons. 10. Accused Ram Kishore Singh was examined at 0.15 a.m. in the same night and accused Indra Pal Singh at 0.30 a.m. by Dr. P. Joshi. He found the following injuries on the person of Ram Kishore Singh :- Injuries :-1. Lacerated wound 2" x 1/4" x scalp deep on left parietal region 5" upwards from upper angle of left ear, margins lacerated, fresh bleeding present. 2 Lacerated wound 3" x 1/4" x scalp deep on the right parietal region 5- 1/2" upwards from upper angle of right ear. Both injuries are 1-1/2" apart from each other. Fresh bleeding present. 3. Abrasion 2" x 1/4" on the right forearm middle third part posterior aspect. 4 Contusion 2" x 1" on the right upper arm upper third part colour red complaint of pain and tender to touch (Adv. X-ray). Opinion.-Injury Nos.1, 2, 3, are simple in nature while Injury No. 4 kept under observation. Injury Nos.1, 2 and 4 are caused by hard and blunt object while No. 3 caused by friction against hard surface. Duration fresh. Adv. X-ray right upper arm including shoulder region. Similarly, on the person of Indra Pal Singh, accused, he found the following injuries:- Injuries:-1. Lacerated wound 1-1/2" x 1/4" x scalp deep in mid line of head (in between the parietal bones) 7" backwards from the bridge of nose. Margins lacerated. Fresh bleeding present (Adv. X-ray). Diffused traumatic swelling present around the wound. Opinion.- The above injury is kept u.o. caused by hard and blunt object and fresh in duration (Adv. X-ray skull). In absence of X-ray report, all the injuries of both the accused are treated as simple. 11. After a thread-bars analysis of the entire evidence and circumstances on the record, the learned lower court believed the prosecution theory and convicted the accused and sentenced them as noted above. 12. X-ray skull). In absence of X-ray report, all the injuries of both the accused are treated as simple. 11. After a thread-bars analysis of the entire evidence and circumstances on the record, the learned lower court believed the prosecution theory and convicted the accused and sentenced them as noted above. 12. Feeling aggrieved, the accused have preferred this appeal. I have heard the learned counsel for the parties at stretch and gone through the record. I find that there is much force in this appeal and it deserves to be allowed. It appears that the prosecution has not come with clean hands. The F.I.R. does not contain any mention as to how the accused had received injuries and with what weapons. Accused's report was lodged earlier to the report of the complainant side. The injuries of the accused were also examined earlier than the injuries on the side of the prosecution. Initially a cross-case launched on the basis of the report Ex. Kha. 3, was investigated and charge-sheeted. In that case Shri Krishna Singh, Shiv Lakhan Singh and Manna Singh were arrayed as accused. 13. The prosecution has not explained as to why the injuries on the side of the accused had been concealed at the earlier stage and later on an explanation was supplied as a result of legal opinion. 14. For the first time Shri Krishna Singh, P.W. 1 stated that his sons also wielded lathis in their defence. But wherefrom they got the lathis, is not explained by the complainant. These injuries on the persons of two accused could not have been caused in a random manner. They show there was a preplanning on the part of the prosecution side. There is further effort on the side of the prosecution to exaggerate the weapons used by the accused persons and for that also beginning was made in the F.I.R. itself. Accused Shiv Sagar Singh was assigned a Pharsa, Shri Indrapal Singh, a gun and Ram Kishore Singh, an axe. But not even a single injury was received on the side of the prosecution from these lethal weapons every time the shots were fired, the proposed victims warded off successfully. Then a difficulty arose and a case was set up that the pellets had been embedded in the wall. But the I.O. has admitted that he did not find any pellet embedded in the wall. Then a difficulty arose and a case was set up that the pellets had been embedded in the wall. But the I.O. has admitted that he did not find any pellet embedded in the wall. Rather, the complainant gave the pellets to him saying that they had fallen from the wall. This is also a new story and no reliance can be placed upon this part of the prosecution case. The result is that on this score also, there is an effort to take up an artificial case. 15. The genesis of marpit is still shrouded in a mystery. In a case where a marpit is admitted, the question arises as to who is the aggressor. For that, genesis of the marpit is material rather, a decisive factor. Injuries in all cases cannot be decisive on the point of aggressors. It is the expertise, dexterity, prima facie preparation etc. which may result in causing the number of injuries. That is why, in such cases, the court tries to come to a conclusion on this point as to who started the marpit and in that search we have to find some answer in the statement of P.W. 1 Sri Krishna Singh. He did not see the beginning of the incident with his own eyes. After hearing an alarm, he came out and fired in the air. That is why, he could not see the whole of the marpit and banked upon his imagination alleging as many weapons as he could in his imaginative flight. But the medical evidence does not support this case. So the complainant, P.W. 1 could not answer this question as to how marpit started. 16. P.W. 2 Smt. Kalawati rushed towards her sons in order to save them. She had heard the alarm at her house whereas, the marpit took place in front of the house of the accused. So she also could not see the inception of the marpit in paragraph 3 of the cross-examination, she admits that when she saw her sons injured, she came to their rescue. Hence she too has no answer as to how the marpit started. P.W. 3 Shiv Kumar clearly admits in paragraphs 2 that he was at the house of Pt. Budhi Ram, when he heard the fire shots. Thereafter, he heard the alarm raised by Shiv Lakhan, his mother and sister. Hence she too has no answer as to how the marpit started. P.W. 3 Shiv Kumar clearly admits in paragraphs 2 that he was at the house of Pt. Budhi Ram, when he heard the fire shots. Thereafter, he heard the alarm raised by Shiv Lakhan, his mother and sister. Thereafter, he came to the place of occurrence. Hence he also did not see the marpit from the beginning. In paragraph 3 of the cross-examination he says that when he saw for the first time, he saw both the sides were wielding lathis. He clearly admits that he could not see as to how the quarrel started. 17. P. W. 5 Shiv Lakhan is an injured witness. He says that seeing him and his brother, the accused Ram Manohar Singh exhorted to murder them and thereafter marpit started. But this statement does not appear to be natural because even while going towards the grove for plucking mangoes, these persons were seen by the accused. Therefore, they could have assaulted them in the grove itself, where they could have achieved their object at a solitary place. But they chose the place of occurrence after the return of the P.Ws. having plucked mangoes. So, it appears that the witness is not telling the whole truth about the genesis of the marpit. 18. It appears that there was no strong motive with the accused for committing the crime, rather a motive was with the prosecution side. The complainant, P.W. 1 admits in paragraph 2 that a litigation is pending in the Board of Revenue and on account of the litigation, there was an enmity between the parties. In paragraph 7, he admits that the accused are the collaterals of his maternal grand-father, whose property he has inherited. There was no litigation with regard to the plots between him and the accused, rather litigations had been there between the maternal grandfather of the complainant and the accused's father. This way, on the date of occurrence, it was a stale affair and if at all, any body was aggrieved, it was the complainant's side. The complainant says in paragraph 9 that he had filed a civil suit with regard to the stray trees. Both the parties have their names mutated in the revenue papers and both had possession over them. The complainant says in paragraph 9 that he had filed a civil suit with regard to the stray trees. Both the parties have their names mutated in the revenue papers and both had possession over them. So the question of the accused plucking mangoes from the exclusive trees of the prosecution did not arise. Moreover, there is no evidence on the record to show that the accused had, in fact, plucked the mangoes from the trees of the complainant. No attempt has been made to show that in fact, such fruits had been plucked. So how could complainant's side know that the accused had plucked fruits and from which trees without actually checking the matter on the spot, is not clear. Therefore, it seems that the incident did not take place in the manner in which it is alleged by the prosecution side to have taken place. On this point, there is no other evidence. Hence. I find that the accused had no strong motive for committing the crime. Even P.W. 5 Shiv Lakhan admits in paragraph 2 that over the grove belonging to him, his father's name is mutated. So is the case with the grove of Shiv Kumar Singh where his name has been mutated. There is no third co-sharer in the grove. The grove is divided half and half between the parties and they have been utilizing the usufruct of the trees peacefully ever since he attained the discretion. The witness was 33 years' old on the date of statement. Further, he says regarding the fruits and wood of the trees, there was never any enmity/quarrel between the parties. So, the question of the accused plucking the tree on that fateful day did not arise. Of course a civil type of litigation had been going on which is quite natural between the co-sharers. Therefore, this was not sufficiently a fresh motive available to the accused for committing the crime. The learned lower court's approach on the point of finding out the aggressor, is not wholesome. At page 12 of his judgment, the learned lower court observed as follows :- "In this way the evidence of all eye-witnesses clearly goes to establish that the party of the accused was aggressor in this case and the manner of the occurrence was the same as alleged by the eye witnesses of this case." This observation is totally based upon conjecture. 19. In the following paragraph, the learned lower court has tried to determine the aggression on the basis of number of injuries only. As observed earlier, this is not a sound test and on this sole basis, the factum of aggression cannot be determined. 20. At page 13, the learned lower court has tried to determine the place of occurrence on the basis of the site-plan. In fact, this is a circumstance which goes against the prosecution. Infront of the door of the accused, the marpit took place. The manner in which the prosecution side reached there, is not clearly explained. So, the place of occurrence also shows that the P.Ws. chose to cause injuries to these accused at their house. In this very paragraph, i.e. paragraph No. 13 the learned lower court has admitted that both the parties had reported the matter. But he forgot to note that the accused moved the machinery of law first. Their injuries were examined first. They also gave explanation for the Injuries on the prosecution side. Whereas, the prosecution side reported the matter later on. The injuries on the other side were also examined later on and conspiciously enough, the prosecution side remained silent with regard to the injuries of the accused for a pretty long time. This is also a circumstance which should have been taken note of by the learned lower court while determining the point of aggression. 21. The learned lower court drew an adverse inference against the accused on the basis of motive by observing that the party of the complainant had no motive for commission of the crime because they were winners in every case and they were coming after plucking mangoes to their houses. This is not a correct approach. Winning litigation in the courts is one thing and actual possession on the spot is another. Rather, it appears that on the basis of some orders in their favour, the prosecution side tried to pluck the fruits although they were not in exclusive possession. Hence the accused had a right of defence of property. 22. Winning litigation in the courts is one thing and actual possession on the spot is another. Rather, it appears that on the basis of some orders in their favour, the prosecution side tried to pluck the fruits although they were not in exclusive possession. Hence the accused had a right of defence of property. 22. At page 15, the learned lower court has observed as follows :- "Even if it is supposed that the mango fruits were plucked by them from joint grove of the party the cause of action for the accused arise when the fruits were being plucked by the party of the complainant and not when they were returning to their houses." Cause of action to the accused remained valid till the thieves had utilized their booty and not only till the fruits were plucked. The process of theft continued while the prosecution side was bringing the stolen plucked fruits and the accused could intercept at any where, at any time. This way, the learned lower court has not properly scanned the evidence on the record. He has drawn wrong conclusions on the legal matters also. 23. Giving the maximum latitude to the prosecution it can be said that the origin of this marpit is still in the lap of a mystery and it has not been clearly established that the accused were aggressors. Rather, it appears that they were the victims of the planning made by the P.Ws. 24. The result is that the accused are entitled to benefit of doubt and acquittal. The appeal is allowed. The judgment and order passed by the learned lower court is set aside. The accused are given benefit of doubt and are acquitted. They are on bail. Their bail bonds and surety bonds are discharged.