D. K. TRIVEDI, J. ( 1 ) THE present criminal appeal is directed against the judgment and order dated 25-8-1988 passed by Special/addi. Sessions Judge, Rai Bareli convicting the appellants u/section 307/34, I. P. C. and sentencing each of them to three years R. I. Initially ten persons were prosecuted but the learned Sessions Judge convicted four of the accused persons u/section 307/34, I. P. C. and acquitted the remaining six accused persons. ( 2 ) THE prosecution case in brief is that on 14-5-1979 at about 7. 30 a. m. accused Kedar alongwith other accused-appellants was cutting Jungle Jalebi tree alleged to be lying in the Ahata of the complainant Ram Ji. It is said that the complainant on receiving this information, rushed to the place of the incident and tried to stop the cutting of the said tree. It also informed the accused persons that as the litigation is going on. Therefore, the tree be not cut till the decision of the case. It is further said that the accused persons continued to cut the said tree and in the meantime. P. W. 2 Ram Das, the father of the complainant also reached there and tried to snatch the axe from the hands of one Kedar. It is also alleged that in the meantime the wives of Badri, Jamuna, Kedar and Chhotai, as well as the daughter of Badri (accused) armed lathis-Dandas arrived there and they exhorted the remaining accused persons to kill Ram Das. It is the case of the prosecution that on the instigation of these ladies, the accused persons started assaulting Ram Das by lathis Dandas, as a result of which he had fallen on the ground and the complainant who was also assaulted tried to run away and reached at the door of his house. It is further stated that the accused persons also chased the complainant and entered into his house and accused Kedar assaulted the mother of the complainant with his axe. It is further said that Ram Das was brought to his house on the cot. It is further said that the accused persons again came there and accused Kedar and Jamuna again assaulted Ram Das. It is further said that Ram Das was brought to his house on the cot. It is further said that the accused persons again came there and accused Kedar and Jamuna again assaulted Ram Das. It is said that as the condition of Ram Das was serious therefore, he was brought to PHC Singhpur but at Singhpur PHC, the complainant was advised to shift Ram Das to District Hospital Rai Bareli for proper treatment and there P. W. 1 Ram Ji got a written report Ext. Ka-1 scribed by Shiv Kumar (P. W. 7) and handed over the same to the S. P. , Rae Bareli on that very date (14-5-1979) at 10. 10 P. M. The S. P. , Rae Bareli had endorsed the F. I. R. (Ext. Ka-l) to Inspector Kotwali for registration of a case on its basis. The case was registered and thereafter the same was transferred to P. S. Shivratanganj on 18-5-1979. P. W. 6 S. I. Basdeo Rai conducted the investigation in this case am he recorded the statements of the witnesses in the village and thereafter, prepared a site plan Ext. Ka-8. After completing the investigation, the Investigating Officer submitted the chargesheet against all the ten accused persons. The injured persons namely. Ram Das (P. W. 2 ). Smt. Indra Kumar and Ram Ji (P. W. 1) were medically examined on 14-5-1979 at about 10 a. m. , 11. 50 a. m. and 12. 10 p. m. by Doctor O. P. Srivastava, the then Medical Officer in charge, PHC Singhpur, Rai Bareli. The doctor found the following injuries on the body of the injured persons: Injuries of Ram Das (P. W. 2)1) Lacerated wound on head at top - 4. 5 cm x 1. 50 cm x bone deep, 11. 7 cm above the right ear. Margins were lacerated and blood was coming out. Margins were irregular and bruised. 2) Lacerated wound on top of head 6. 5 cm x 1:50 cm x bone deep in continuation of injury No. 1. Margins were crushed and blood was coming out. Direction was oblique. 3) Lacerated wound on top of head 7 cm x 2 cm x bone deep in continuation of injury No. 2. Direction was oblique. Blood was coming out, and margins werecrushed and irregular. 5 cm x 1:50 cm x bone deep in continuation of injury No. 1. Margins were crushed and blood was coming out. Direction was oblique. 3) Lacerated wound on top of head 7 cm x 2 cm x bone deep in continuation of injury No. 2. Direction was oblique. Blood was coming out, and margins werecrushed and irregular. 4) Lacerated wound on the top of head 4cm x 2cm x bone deep in continuation of injury No. 3. Blood was coming out and margins were crushed. Direction was oblique. 5) Lacerated wound on the top of head 6cm x 2cm x bone deep. Margins were crushed and blood was coming out. Direction was oblique. 6) Lacerated wound 3. 2cm x 2cm x bone deep towards nose on left lateral side of top of head 5 cm above the left ear. Margins were crushed and blood was coming out. 7) Lacerated wound 3. 2cm x 5cm x bone deep on root of upper lip involving the left nostral nasal. Margins were irregular and blood was coming out from both the nostrils. 8) Lacerated wound 1 cm x 5cm x bone deep on the root of nose. Cracking sound was present on movement of bridge of nose. 9) Lacerated wound 2. 5cm x 0. 5cm x bone deep on lateral end of left eye brow just above the left eye. Blood was coming out and margins were crushed. 10) Echymosis was present around both the eye lids including root of nose. 11) Contusion on left fore-arm starting from left elbow joint -11 cm x 4cm. Colour was red. 12) Diffused swelling in middle of left fore-arm with deformity shortening of left fore-arm was present. Complained of pain in both legs, chest and head, face and both arms. 13) Lacerated wound (A) 1 cm x 0. 5cm x bone deep on left side of upper jaw. Margins were lacerated and gums were also lacerated. Front incisors were loose and moving with bone. Left second incisor was broken. Right second incisor was broken. Lacerated wound 2 cm x 5 cm x bone deep on right side of upper jaw the base of 2nd incisor. (B) Lower jaw: Front 4 incisors were loose and pushed the mouth. Teeth in upper jaw ten including two broken on lower jaw. Fifteen including four were loose teeth of front. There was profusely bleeding from injury No. 13. Lacerated wound 2 cm x 5 cm x bone deep on right side of upper jaw the base of 2nd incisor. (B) Lower jaw: Front 4 incisors were loose and pushed the mouth. Teeth in upper jaw ten including two broken on lower jaw. Fifteen including four were loose teeth of front. There was profusely bleeding from injury No. 13. Injuries Nos. 1 to 6 were kept under observation and X-ray of skull was advised, injury Nos. 7 and 13 were grievous, injury No. 12 was also grievous and X-ray was advised for upper and lower jaw as well as for left fore-arm, injury No. 8 was kept under observation and X-ray of nasal bone was advised. In the opinion of the doctor injuries Nos. 9, 10, and 11 were simple in nature and were caused by blunt weapon and were found fresh at the time of examination. Injuries of Smt. Indra Kumari Incised wound 4cm. x 1. 5cm x 1. 5 cm vertically on back of left fore-arm 2 cm above the left wrist. Margins were clean cut and angles were sharp. Blood was oozing out, blood clots were present. TI In the opinion of the Doctor this injury was simple in nature and was caused by sharp weapon and was fresh at the time of examination. Injuries of Ram Ji, the complainant (P. W. 1)1) Lacerated wound on top of head 5 cm x 1 cm x bone deep, 14 cm above the right ear anterio-posterior. Margins were irregular and crushed. Blood was oozing. 2) Lacerated wound 1. 5 cm x 0. 5cm x 0. 5 cm on left side of head at the top 9 cm above the left ear anterio-posterior. Margins were irregular. Blood was oozing. 3) Abrasion with contusion 1cm x 1 cm on back in middle at the root of neck. Its colour was red. 4) Contusion 1. 5cm x 1 cm on back of left fore-arm in middle. Its colour was red. According to the doctor, all the injuries were simple in nature and were caused by blunt object and at the time of examination the injuries were found fresh. The injuries reports are Exts. Ka-2 to Ka4 respectively. In support of its case, the prosecution examined as many as seven witnesses. Its colour was red. According to the doctor, all the injuries were simple in nature and were caused by blunt object and at the time of examination the injuries were found fresh. The injuries reports are Exts. Ka-2 to Ka4 respectively. In support of its case, the prosecution examined as many as seven witnesses. Out of them, P. W. 1 Ram Ji, P. W. 2 Ram Das and P. W. 3 Gaya Prasad are witnesses of fact. P. W. 4 Dr. O. P. Srivastava examined the injuries of the injured persons and proved the injury reports. P. W. S Constable Girish Chandra Shukla registered the case and prepared the G. D. P. W. 6 S. 1. Basdeo Rai conducted the investigation in this case and after completing the investigation submitted chargesheet against the accused persons. P. W. 7 Shiv Ku mar scribed the report. ( 3 ) ON the other hand the accused persons denied the prosecution case and some of them stated that in fact the Jungle Jalebi tree belonged to the accused persons and the same was standing on the land of the accused persons. It is said that the complainants party was cutting the Jungle Jalebi tree, and on protest, the complainants party assaulted the accused persons and then they tried to wield their lathis in their self defence, Accused Kedar denied the prosecution case and stated that he tried to stop the cutting of Jungle Jalebi tree by the complainants party bud hey assaulted the accused persons. He denied the presence of the ladies at the time of the incident. Appellant Badri stated that he was assaulted by P. W. 1 Ram Ji and P. W. 2 Ram Das. Appellant Triveni denied the prosecution case and stated that the Jungle Jalebi tree was being cut by Ram Ji and Ram Das. Appellant Jamuna also stated that the tree was cut by Ram Ji and Rani Das and he asked them to stop the cutting of the said tree put the complainants party assaulted the accused persons. Appellant Chhotai also stated that the tree was being cut by the complainants party and the complainants party assaulted the accused persons. Appellant Jamuna also stated that the tree was cut by Ram Ji and Rani Das and he asked them to stop the cutting of the said tree put the complainants party assaulted the accused persons. Appellant Chhotai also stated that the tree was being cut by the complainants party and the complainants party assaulted the accused persons. ( 4 ) THE learned Sessions Judge after considering the evidence adduced by the prosecution came to the conclusion that the prosecution case as alleged by the prosecution is not correct and the prosecution has failed to prove its case. The learned Sessions Judge while considering the evidence of the eyewitnesses came to the conclusion that the testimony of the eyewitnesses is not worth to be believed and therefore, the same cannot be relied upon. He clearly pointed out that these eyewitnesses falsely stated several things and therefore, their testimony cannot be believed. The learned Sessions Judge further disbelieved the prosecution story in which it is said that the mother of the complainant was assaulted by accused Kedar in the house of the complainant and further P. W. 2 Ram Das, the father of the complainant was assaulted again at his house by accused Kedar and Jamuna. The incident took place at the time of cutting of Jungle Jalebi tree and the complainants party was found to be aggressor. The learned Sessions Judge has, categorically pointed out that the accused persons were attacked by the complainants party, arid the accused persons used their weapons in their self defence. However, on the basis of the numbers of injuries the learned Sessions Judge came to the conclusion that the accused persons have exceeded the right of self defence and therefore, he convicted four of the accused persons u/section 307, I. P. C. and sentenced as mentioned above. The appellants aggrieved by the said judgment and order filed the instant criminal appeal before this Court. ( 5 ) IN fact the learned Sessions Judge has believed the defence case to the extent that the accused persons used their weapons in their self defence. ( 6 ) I have heard the learned Counsel for the appellants as well as Addi. Government Advocate for State and have perused the record. ( 5 ) IN fact the learned Sessions Judge has believed the defence case to the extent that the accused persons used their weapons in their self defence. ( 6 ) I have heard the learned Counsel for the appellants as well as Addi. Government Advocate for State and have perused the record. ( 7 ) THE learned Counsel for the appellants submits that the learned Sessions Judge has committed an error in carving out a third case convicting the accused persons on the said basis. The learned Counsel for the appellants further pointed out that since the learned Sessions Judge recorded a finding that a prosecution has failed to prove its case and the testimony of the eyewitnesses is not reliable, the learned Sessions Judge ought to have acquitted all the accused persons. According to him there is nothing on the record to show that the accused persons have exceeded their right of self-defence and therefore, the conviction and sentence awarded by the Court below is on the face of it, illegal. As pointed out above, the learned Sessions Judge has clearly disbelieved the prosecution case in toto. The learned Sessions Judge disbelieved the prosecution case that the accused persons chased the complain ant and entered into the house of the complainant and thereafter, accused Kedar gave an axe blow to the mother of the complainant. The learned Sessions Judge further disbelieved the prosecution story that the accused persons assaulted Ram Das against at the door of the house of the complainant. According to the learned Sessions Judge, the incident took place near Jungle Jalebi tree and the accused persons had right to defend themselves as well as right to save their property. The learned Sessions Judge accepted the prosecution case that the accused persons were cutting Jungle Jalebi tree at the time of the incident. However, this finding on the face of it is incorrect as the testimony of the eyewitnesses who were examined by the prosecution, was found to be unreliable. The accused persons also did not say that they were cutting Jungle Jalebi tree at the time of the incident. According to them, Jungle Jalebi tree was being cut by P. W. 1 Ram Ji and P. W. 2 Ram Das and they lodged the protest. In any case, it is not disputed that a Marpit took place in respect of cutting of Jungle Jalebi tree. According to them, Jungle Jalebi tree was being cut by P. W. 1 Ram Ji and P. W. 2 Ram Das and they lodged the protest. In any case, it is not disputed that a Marpit took place in respect of cutting of Jungle Jalebi tree. It is also proved that the said tree situated just near the house of the accused persons and was lying at about one furlong from the house of the complainant. As the, fact is not admitted by the accused persons, that they were cutting the said tree, therefore, the learned Sessions Judge has committed an error in holding that the accused persons were cutting the said tree. In any case a dispute arose regarding cutting of Jungle Jalebi tree. There is nothing on the record to show that the accused persons assaulted the injured persons till they fell down. The case of the prosecution as pointed out above has already been disbelieved in toto by the learned Sessions Judge. The accused persons were convicted u/section 324, I. P. C. for the injuries alleged to be caused to the mother of the complainant by accused Kedar at the house of the complainant. The prosecution story that the accused entered into the house of the complainant and accused Kedar censed injuries to the mother of the complainant in the house has already been disbelieved, and therefore, the accused persons cannot be convicted u/section 324, I. P. C. in respect of the injuries caused to the mother of the complainant. ( 8 ) THE learned Sessions Judge in fact committed an error in carving out a third case and holding that the mother of the complainant also received injuries at the place of the incident namely, near the Jungle Jalebi tree. It is nobody case that accused Kedar assaulted the mother of the complainant or she was assaulted near Jungle Jalebi tree. In these circumstances, the story of assaulting the mother of the complainant fails and therefore, the accused persons cannot be convicted u/section 324, I. P. C. ( 9 ) APART from this as pointed out above, there is nothing on the record to show that at what time the accused exceeded their right of self defence. In these circumstances, the story of assaulting the mother of the complainant fails and therefore, the accused persons cannot be convicted u/section 324, I. P. C. ( 9 ) APART from this as pointed out above, there is nothing on the record to show that at what time the accused exceeded their right of self defence. The prosecution case that the incident took place near Jungle Jalebi tree and thereafter, the complainant was chased by the accused upto his house and was assaulted there and thereafter some time again the accused reached the house of the complainant and assaulted Ram Das, the father of the complainant, has already been disbelieved. Therefore, it cannot be said that the accused persons have exceeded their right of self-defence. Admittedly, the prosecution did not come with clean hands and the prosecution has concealed the correct facts: In these circumstances, it is not possible to hold that the accused persons are guilty of any offence. In fact the prosecution has miserably failed to prove its case and therefore in my opinion the learned Sessions Judge has committed an error in convicting the accused persons as mentioned above. ( 10 ) IN the result, the present criminal appeal is allowed. The conviction and sentence as awarded by the Trial Judge are hereby set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties stand thereof discharged. Appeal allowed. .