B. K. SHARMA, J. This is an appeal against the judgment and order, dated 6-2-1980 passed by Sri S. N. Mishra, the then IInd Additional Sessions Judge, Jaunpur in S. T. No. 220 of 1977, whereby he convicted the accused- appellant Dina of the offence under Section 307/34ipc and sentenced him to undergo R. I. for a period of 3 years. 2. I have heard the counsel for the parties and have also gone through record. 3. The injured in this case was Ramanand P. W. 2. The informant Salik Ram was his real brother. Devi Prasad, P. W. 4 was son of Salik Ram P. W. 1 Hiramani P. W. 5 is son of Shiv Mangal who was real brother of Mangal, father of the injured Ramanand and informant Salik Ram. 4. The prosecution story as disclosed in the FIR lodged by Salik Ram P. W. 1 at the police station Zafrabad on 11-1-1977 at 7. 15 p. m. was that some days prior to the date of occurrence, somebody had cut 2-3 mango trees of Kariya Shukla and Kariya Shukla used to claim that the mango trees have been cut by Ramanand injured, that the complainants side used to threaten that they would cut Ramanand in the same way as the mango trees have been cut that on 11-1-1977 he (Salik Ram informant), his brother Ramanand injured and informants son Devi Prasad while returning to their house after 5 watching their fields at 4-5 p. m. at evening, they reached near the Pahi (Gonda) of Kariya Shukla Lochan son of Kariya Shukla, Dina accused-appellant (son of Kariya Shukla), Kailash son of Vikrama and Vikrama of the village challenged Ramanand and retorted, "aaj ISKO JAN SE MAR KAR KHATM KAR DENA HAI", that Lochan was armed with Gandasa, Dina accused-appellant with Tengari, Kailash and Vikrama with Lathies; that Ramanand received injuries on his body and fell down on the ground; that on the alarm of the victim, the informant and that informants son Girja, Heeramani and many others reached at the spot and saw the occurrence and the accused persons ran away. Ramanand injured was medically examined in the District Hospital, Jaunpur on 11-1- 1977; at 8. 30 p. m. The doctor found the following injuries on his person: (i) Lacerated wound 4. 5 cm x scalp deep on Rt. frontal area of head 4 cm above Rt. Ramanand injured was medically examined in the District Hospital, Jaunpur on 11-1- 1977; at 8. 30 p. m. The doctor found the following injuries on his person: (i) Lacerated wound 4. 5 cm x scalp deep on Rt. frontal area of head 4 cm above Rt. Eye brow. (ii) Lacerated wound 4 cm x 2 cm x scalp deep on Rt. parietal area of head 5 cm above ear. (iii) Incised wound 7 cm x. 5 cm x bone depth Lt. side of forehead. (iv) Incised wound 4. 5 cm x 4. 5 cm x bone deep on Lt. side of nose and lip. (v) Lacerated wound 2. 5 cm x 0. 3 cm x scalp deep on Lt. side of back of head. (vi) Lacerated wound 1 cm x 1 cm x scalp deep on back of head just below inj. No. 5. (vii) Incised wound 4 cm x 1 cm x bone deep on back of Rt. elbow. (viii) Incised wound 2. 5 cm x 1 cm bone deep on dorsum of Rt. foot outer. (ix) Incised wound 5 cm x 1. 3 cm x muscle deep on inner aspect of Lt. leg 4 cm above wrist joint. (x) Incised wound 5 cm x 1. 5 cm x muscle deep on inner aspect of Lt. leg 4 cm above wrist joint. Ail the injuries were fresh and injury Nos. 3,4,7,8,9 & 10 were caused by sharp edged weapon, while injury Nos. 1,2,5 & 6 were caused by blunt object. The medical report was Ex. Ka-7. 5. The dying-declaration of Ramanand injured was recorded by Executive Magistrate on 12-1-1977 at 11. leg 4 cm above wrist joint. Ail the injuries were fresh and injury Nos. 3,4,7,8,9 & 10 were caused by sharp edged weapon, while injury Nos. 1,2,5 & 6 were caused by blunt object. The medical report was Ex. Ka-7. 5. The dying-declaration of Ramanand injured was recorded by Executive Magistrate on 12-1-1977 at 11. 15 a. m. The statement was to the effect that on the previous day, he was watering to his field, that the evening had fallen, that his brothers two young sons were present there, that his brother asked him to escort these boys to the house as the night is falling, that as soon as he reached near the Dalan of the Pahi of Ram Lochan, Dina accused-appellant caught hold of him and asked them to go in Pahi (Dalan) that in the meantime, Lochan, Kailash, Dina Mangal Wallus son came there with Gandasa and Tengari used for cutting wood and started assaulting him, that Lochan assaulted him with Gandasi, Dina assaulted him with Tengari, Kailash assaulted him with Danda and Mangal throw him to the ground and mounted on his chest, that his nephew ran and cried, thereupon Rampher, Girja Dayal, Teni and Salik Ram rushed to the spot to save him and the assailants run away. A copy of the dying declaration is Ex. Ka-11. Since the victim survived this dying declaration ceased to be substantive evidence. 6. On the FIR lodged by the informant, the case was registered against the 4 accused named in the FIR namely, Ram Lochan, Dina, Kailash Nath and Vikrama and after usual investigation, charge-sheet was submitted against all the 4 accused persons and after committal the charge was framed against them under Section 307/34, IPC but Ram Lochan died and the amended charge was framed against the remaining accused persons. 7. At the trial, Salik Ram informant, P. W. I, Devi Prasad P. W. 4 and Hira Mani P. W. 5 narrated the prosecution story as taken in the FIR. However, Ramanand injured P. W. 2 stuck to the story as narrated by him in the dying declaration with a slight difference. In the FIR as well as in the dying declaration, the assaults were alleged to be made by Lochan with Gandasa, Dina accused-appellant with Tengari and Kailash with Lathi. However, Ramanand injured P. W. 2 stuck to the story as narrated by him in the dying declaration with a slight difference. In the FIR as well as in the dying declaration, the assaults were alleged to be made by Lochan with Gandasa, Dina accused-appellant with Tengari and Kailash with Lathi. The difference was that in the FIR the fourth accused was Vikrama who was said to have used Lathi in the occurrence and in the dying declaration, his presence was not alleged and instead of him, the presence of one Mangal son of Wallu was alleged. Ramanand injured P. W. in his testimony at the trial narrated the assault by Lochan with Gandasa, by Dina accused-appellant with Tengari and by Kailash with Lathi. He did not name Vikrama accused as present at the spot and participating in the occurrence. He named Mangal as had been named by him in his dying declaration but made a variation inasmuch as he now claimed that Mangal had pushed him while he audited that in the dying declaration, he had stated that Mangal had thrown him on the ground and mounted on his chest. 8. As noted above, Lochan had died at the commencement of the trial and so there remained for consideration by the Session Judge only three namely; Dina accused appellant, Kailash and Vikrama. No charge-sheet was submitted against Mangal though he was named in the dying declaration by the injured himself. Charge-sheet however was submitted by the I. O. against Vikrama though Vikrama had not been named by the injured himself in his dying declaration. The Sessions Judge in its judgment held that after narration of the various litigations that there was enmity between Vikrama and Kailash accused on the one hand and Ramanand injured and Salik Ram informant on the other hand. He took the view that in view of this enmity their presence appear to be doubtful and that they had no motive or interest to commit the assault. He took the view that in view of this enmity their presence appear to be doubtful and that they had no motive or interest to commit the assault. It appears that the Sessions Judge did not express himself properly as it could not be fairly stated that as there was enmity between one set of accused and the victim, that set of accused could not have joined the other set for an assault against the victim, the learned Sessions Judge could only say that there was possibility of their false implications in the case on account of enmity because there was no immediate motive for them to commit the occurrence. 9. The fact remains that on account of the long continued enmity existing between these two accused Kailash and Vikrama on the one hand and the injured and the informant on the other hand he gave acquittal to these two accused. In regard to Vikrama, there was one more material circumstance that the Victim Ramanand did not claim his presence at all and so there could not be any reasonable basis for convicting him even though the informant Salik Ram, P. W. 1 and other two eye witnesses Devi Prasad P. W. 4 and Heeramani P. W 5 testified to the assault by him with Lathi. The learned Sessions Judge has taken into consideration the omission by Ramanand injured in regard to this accused while coming to the conclusion that the presence of Vikrama and Kailash accused on the scene of occurrence appears to be doubtful. 10. The learned Sessions Judge appears to have been conscious that there were injuries caused by blunt weapon and there were injuries caused by sharp edged weapon and so there must be two assailants in any case, one causing one type of injury and the other causing the other type of injury. With this in mind, he twisted the reasoning to make it appear as consistent with the facts. As per prosecution case Lochan accused had used Gandasa and Dina accused-appellant had used Tengari, both of which were heavy cutting weapons. With this in mind, he twisted the reasoning to make it appear as consistent with the facts. As per prosecution case Lochan accused had used Gandasa and Dina accused-appellant had used Tengari, both of which were heavy cutting weapons. So it was found by the Sessions Judge that after excluding two persons Kailash and Vikrama both the assailants who were left in the picture were armed with sharp edged weapons while the injuries of the victim were not only of a sharp weapon but also of blunt weapon to be observed in the judgment that the accused Ram Lochan is said to have been assaulting with Gandase and Dina was armed with Tengari and reasoned that there is no specific evidence that Tengari was being used with its blade, that the injuries inflicted by Gandasa were unequivocally corroborated by the witnesses, that therfore, the injury report showing incised and lacerated wounds were caused might have been on account of the Gandasa used by Ram Lochan and also Tengari used by his brother Dina. It implied that while Ram Lochan used Gandasa by its sharp edge which is its normal user, Dina accused- appellant used his Tengari by its blunt side which was an abnormal use. The learned Sessions judge forgot that in the case of sharp edged weapons, their normal use is for assaulting by the sharp edge and that this normal use is to be presumed unless there is satisfactory proof that it was used in an abnormal manner by the blunt side. Here neither the FIR said that the blow was given with Tengari by its blunt side nor at the trial any prosecution witness said that Tengari was used by its blunt side That being so, it was not open for the Sessions Judge to conjecture that Dina might have used Tengari by its blunt side, only to make a consistent case, a case consistent in the medical evidence, once this theory of abnormal use is set apart as unwarranted on the prosecution evidence accepted by the Sessions Judge, there remain two assailants Lochan and Dina, each armed with sharp weapons and no just explanation left for the injury caused by blunt weapons. These injuries were 4 in number. They were not insignificant. Injury No. 1 was 4. 5 cm x 5 cm x scalp deep at right frontal area on head. These injuries were 4 in number. They were not insignificant. Injury No. 1 was 4. 5 cm x 5 cm x scalp deep at right frontal area on head. Another lacerated wound was 4 cm x 2 cm x scalp deep on the right on the parietal area of head. The third was 2. 5 cm x 3 cm x scalp deep on left side back of head and then there was a lacerated wound 1 cm x 1 cm x scalp deep on back of head. So for the purposes of the accused appellant even this much is sufficient that on the findings of the Sessions Judge after the exclusion of Kailash and Vikram the acquitted accused, there were left two accused Lochan and Dina, each assaulting with sharp edged weapon and no explanation for the 4 blunt weapon injuries on the body of the victim. 11. Another aspect is that there was discrepancy between the testimony of Salik Ram informant P. W. 1 Devi Prasad P. W. 4 and Hera Mani P. W. 5 on the one hand and Ramanand injured P. W. 2 on the other hand in regard to Vikram and Mangal. As noted earlier, Vikram was named by the three eye witnesses Salik Ram, Devi Prasad and Heeramani but was not named by the injured Ramanand and then injured Ramanand named Mangal as present at the spot and participating in the occurrence while these witnesses Salik Ram, Devi Prasad and Heera Mani do not allege the presence of Mangal at all. The injured might have diluted the role of Mangal from that of throwing him on the ground and mounting on his chest to that of just pushing him but the fact remains that the presence of Mangal is not admitted by any of these witnesses Salik Ram, Devi Prasad and Heera Mani. It means that truth has been mixed with falsehood to an extent that it is difficult to separate the grain from the chaff in the prosecution evidence. The defence claimed that the occurrence took place in the evening after darkness has fallen and that appears to be a fact. It means that truth has been mixed with falsehood to an extent that it is difficult to separate the grain from the chaff in the prosecution evidence. The defence claimed that the occurrence took place in the evening after darkness has fallen and that appears to be a fact. While in the FIR the time of occurrence has been given as 5 p. m. and the testimony of Salik Ram informant P. W. 1, Devi Prasad P. W. 4 and Heeramani P. W. 5 is consistent with the FIR but the injured Ramanand testified that he, Salik Ram informant, Girja Shanker and Devi Prasad had started from their respective fields at 5. 30- 6 p. m. in the evening. He could not have Said that the occurrence took place at 5 p. m. because in that case he would have been contradicted by his dying declaration, according to which the occurrence had taken place when it was evening and the night was about to fall. It was 12-1-1977 when the occurrence took place. However, this does not make much of a difference in the circumstance of this case as the defence has given a version about the occurrence and had examined a defence witness about it. The learned Sessions Judge has committed a mistake in taking the defence version first and making a long discussion rejecting it as if the accused were the prosecutors who failed to lead all possible evidence to establish their case and then say in his judgment in para 10 that after having dealt with the suggestions of defence, the prosecution in this case has little to do for proving its case. He has thus deviated from the proper court of appreciation of evidence. It is for the prosecution to prove its case and the prosecution has to stand on its own legs and the version of the defence was to be tested subsequent to the testing of the prosecution case and the prosecution evidence. He has thus deviated from the proper court of appreciation of evidence. It is for the prosecution to prove its case and the prosecution has to stand on its own legs and the version of the defence was to be tested subsequent to the testing of the prosecution case and the prosecution evidence. He has to first evaluate the prosecution evidence, and then to see the defence version and consider whether it tilts the balance in favour of the accused, If the accused takes a plea which is probable and leads some evidence in support of it through there could be other evidence which could be led to substantiate that plea but was not reduced, then the Sessions Judge cannot discard the defence version first and then say that the prosecution has little to do to prove its case that is to say that the prosecution case stands established because the defence version stands discarded. In this case the defence has put forward a version which competes in probability with the prosecution version. The defence version taken at the trial by counsel and suggested to the prosecution witnesses in cross- examination was that the injured Ramanand had teased the women of the house of Ram Lochan in the evening of the occurrence who had gone to ease themselves, and Ram Lochan (Lochan is admittedly the alias of Ram Lochan) and Mangal Shukla beat the injured Ramanand and accused Dina, Vikram and Kailash were falsely implicated in this case. Now this claim of defence of false implication was admitted by the Sessions Judge himself to be extent of Vikram and Kailash for all practical purposes. The prosecution has not challenged the acquittal of Vikram and Kailash by the Sessions Judge and so to this extent the prosecution also accepts the defence plea. The participation by Ram Lochan (Lochan) accused in the occurrence is alleged in the FIR and testified at the trial by all the prosecution witnesses of fact and so to the extent of participation by Lochan in the occurrence, the defence plea is equally admitted to prosecution. The presence and participation of Mangal is claimed in the defence version and the injured Ramanand P. W. 2 also claims his presence and participation even though the other prosecution witnesses namely, Salik Ram, Devi Prasad and Heeramani did not any where allege the presence of Mangal at the spot. The presence and participation of Mangal is claimed in the defence version and the injured Ramanand P. W. 2 also claims his presence and participation even though the other prosecution witnesses namely, Salik Ram, Devi Prasad and Heeramani did not any where allege the presence of Mangal at the spot. The testimony of the victim is to be preferred to the testimony of the said eye- witnesses and so to the extent of Mangal also the defence version is consistent with and corroborated by the prosecution version of the occurrence as given by the injured and to the extent the other witnesses of the prosecution version of the occurrence as given by the injured and to the extent the other witnesses of the prosecution go against it, their testimony is false. So the only point of difference that remains between the two versions (preferring the version given by the injured to the version given by the eye-witnesses aforesaid Salik Ram, Devi Prasad and Heeraman) is about Dina accused appellant (apart from the divergence about the genesis of the occurrence ). 12. It cannot be said for a moment that the defence in its version has named Lochan as one of the assailants because he has died at the opening of the trial before the Sessions Judge. We have noted earlier that Lochan is named as a participant with Gandasa in the FIR and in the statements of the injured Ramanand P. W. 2 and also the other prosecution witnesses aforesaid. According to the defence version, the occurrence took place in the evening and the prosecution version also sets out about the same time of occurrance as noted above. About the place of occurrence also there appears no real discrepancy. Then the injuries found on the body of the injured could be caused by just two persons (sharp weapon injuries by one person and blunt weapon injuries by another person ). This is the view of the learned Sessions Judge himself. So the defence version was consistent with this stand also. 13. It is to be kept in mind that in our country teasing of women is considered seriously and if the relatives of the victim women or girls are around, the teaser is assaulted by them and taught a lesson. This is the view of the learned Sessions Judge himself. So the defence version was consistent with this stand also. 13. It is to be kept in mind that in our country teasing of women is considered seriously and if the relatives of the victim women or girls are around, the teaser is assaulted by them and taught a lesson. It is also to be kept in mind that false defence plea of eve teasing are generally not taken even for avoiding a grave charge because it always brings a bad name to the women of the family. In this case there was inherent weakness in the prosecution case due to the fact that while in the FIR Vikram was named as an accused, in the dying declaration of the injured his name did not figure and the name of Mangal appearing in the dying declaration of the injured did not figure in the FIR. , and charge-sheet was submitted by the police in accordance with the FIR against the 4 persons named in the FIR despite this discrepancy. That being so it was all the more unlikely that the defence would carve out a false version to defend the accused against this background. It is immaterial that the victim women were not named and not put in by the defence in the witness-box as D. Ws. It is also immaterial that D. W. 1 Jagjiwan Shukla did not name the women who had been teased and did not say that the teasing had taken place in his presence. His evidence is that Lochan and Mangal were assaulting Nankoo (it is undisputed that Nankoo is alias of Ramanand. , this alias of Ramanand is available in his injury report as well as in his dying declaration on record ). There was nothing improbable in the women of the house complaining of the teasing by the injured Ramanand and thereupon Lochan and Mangal doing marpit with Ramanand injured. The Pahi (Gonda) of Kariya Shukla, father of Lochan and Dina accused-appellant was situated in the vicinity where the occurrence took place and it has come in the evidence of Jagjiwan Shukla D. W. 1 that the wife of Lochan used to live in the Pahi at night. Against this background the occurrence could have taken place as claimed by defence. Against this background the occurrence could have taken place as claimed by defence. If the occurrence had taken place like this one could hardly except the injured to give the said genesis of the occurrences. 14. This Mangal on the evidence of injured Ramanand was son of one Lalmani of the same village and it has also come in the evidence of the injured that Lalmani, father of Mangal had filed a criminal case against him for having plucked mango and for having given a beating which case was pending on the date of occurrence, so it was not surprising that this Mangal joined Lochan in assaulting the injured Ramanand on account of the eve teasing by Ramanand. 15. It may be that the prosecution suggestion to the defence witness Jagijwan Shukla in cross- examiantion was that his pattidar Bujlan had prosecuted Nankoo alias Ramanand for dacoity but the witness pleaded ignorance and no material was placed on record to show that he was suppressing the truth. No copy of the FIR or criminal complaint was filed in respect to the said dacoity. In fact, it was not suggested to the witness as to when and where the alleged dacoity was said to have taken place. So there was no reason to infer that this witness Jagjiwan Shukla is an interested witness and has given a false evidence in the sake of defence. 16. In view of the above discussions, the prosecution case against Dina accused-appellant has to be discarded and he deserves to be acquitted. 17. The learned counsel for the accused-appellant has pointed out to the cross-examination of Dr. R. N. Tewari, P. W. 8 who has medicaly examined the injured Ramanand where he has opined that Gandasa and Tengari are heavy cutting weapon and that the sharp weapon injuries were found on the body of Ramanand injured were caused by the weapons which were not heavy. However, it is unnecessary to dilate on this point as the prosecution case is already collapsing as noted above. ORDEr 18. The appeal is allowed. The conviction and sentence of the accused-appellant Dina for the offence under Section 307/34 IPC is set aside and he is acquitted of the charge. He is on bail from this court. He need not surrender to it. His bail bonds are cancelled and sureties discharged. 19. ORDEr 18. The appeal is allowed. The conviction and sentence of the accused-appellant Dina for the offence under Section 307/34 IPC is set aside and he is acquitted of the charge. He is on bail from this court. He need not surrender to it. His bail bonds are cancelled and sureties discharged. 19. Let a copy of this judgment be certified to the Sessions Judge, concerned for information and compliance. The compliance report shall be sent by the Sessions Judge to this court within a month from today. Appeal allowed. .