Judgment : N. S. Gupta, J. 1. THIS is a Government appeal against the judgment and order of acquittal dated 1.8.1980, passed by Sri B. K. Misra, the then IIIrd Additional Sessions Judge, Shahjahanpur, in Session Trial No. 648 of 1978, acquitting the accused-respondents named above for the offences levelled against them under Section 302/147/148/149, I.P.C. 2. THE prosecution story briefly stated is as follows : "THE complainant Gajadhar was a resident of village Piparia, police station Sehramau (North), district Shahjahanpur. THE accused-respondents were also residents of the same village. THE accused-respondents are said to be the close associates of each other. THE prosecution claimed that 6-7 days prior to the occurrence of this case, accused-respondent Balak Ram and Ishwari had beaten Sarojini the sister of Gajadhar, P.W. 1. Gajadhar and his sister Sarojini brought this matter to the notice of their father Sunder Lal (deceased). When Sunder Lal (deceased) intended to lodge a report about that matter, all the accused-respondents are said to have threatened him. THE incident of this case relates to 26.7.78, at about 4.00 p.m. when the deceased Sunder Lal along with his son Gajadhar, P.W. 1 and son-in-law Rameshwar, P.W. 2 were sitting in front of the door of their house situate in village Piparia. THE accused-respondents formed an unlawful assembly with the common object of assaulting Sunder Lal (deceased) and in prosecution of their common object, they assaulted Sunder Lal (deceased) by means of Lathis and Suja. THE accused-respondents, Ishwari, Ram Swaroop, Bandho and Khyali were armed with lathis and Balak Ram was armed with a Suja, which was a pointed instrument. When Gajadhar, P.W. 1 and his brother-in-law Rameshwar, P.W. 2 came to the rescue of Sunder Lal (deceased), they too were assaulted. On an alarm being raised, other villagers like Banwari, Nand Ram and Param Sukh reached at the scene of occurrence. THE accused-respondents made good their escape. Gajadhar, P.W. 1 took his father Sunder Lal to the police station Sehramau (North) in a bullock cart on the next day and there he lodged a written report about this occurrence. On the basis of which case Crime No. 63A, under Section 147/148/304/323, I.P.C. was registered by the Head Constable Raghunath Singh. S.I. Suraj Mal, P.W. 5, who was then present at the police station prepared inquest report Exh. On the basis of which case Crime No. 63A, under Section 147/148/304/323, I.P.C. was registered by the Head Constable Raghunath Singh. S.I. Suraj Mal, P.W. 5, who was then present at the police station prepared inquest report Exh. Ka.-5, in respect of the dead body of the deceased and sent the same for post-mortem examination to mortuary at Shahjahanpur as per letter Exh. Ka.-8 and other necessary papers, where Dr. B. C. Pal, P.W. 3 performed the autopsy on the dead body of the deceased on 29.7.78. Dr. Pal found the position of the deceased as under : The deceased was aged about 65 years. About two and half days had passed to his death. His body was average built. Rigor mortis had passed of from whole of the body. Whole of the body was swollen due to decomposition. Colouration was present over whole of abdomen. Skin peeled off in various places. Maggots present on whole of the body. Eyes were closed. Eye balls were partly eaten up. Mouth closed. Dr. Pal found the following ante-mortem injuries on the dead body of the deceased : (1) Lacerated wound 3 cm. 1/4 cm. bone deep centre of skull, 2 cm. left of mid-line. (2) Lacerated wound 2 cm. 1/2 cm. bone deep 1-1/2 cm. back to injury No. 1. (3) Lacerated wound 2-1/4 cm. 1/2 cm. bone deep, 4 cm. below injury No. 1. (4) Punctured wound 1-3/4 cm. 3/4 cm. 3 cm. in front of left leg, 10 cm. below knee. 3. ON internal examination, Dr. Pal found haemorrhage on the centre of left side of skull. Multiple communicating depressed fracture of left parietal bone. He found that the brain was haemorrhaged because of the fracture of left parietal bone. Lungs were congested. Dr. Pal opined that the deceased had died due to coma, which had resulted from the aforesaid ante-mortem injuries. 4. P.W. 5, Suraj Mal was working as S.O. Sehramau (North) till 26.7.78. He, however, left the charge of that police station on 26.7.78, but was present there on 27.7.78. He was present at the said police station when the dead body of the deceased was brought by his son Gajadhar at about 12.45 noon on 27.7.78. 4. P.W. 5, Suraj Mal was working as S.O. Sehramau (North) till 26.7.78. He, however, left the charge of that police station on 26.7.78, but was present there on 27.7.78. He was present at the said police station when the dead body of the deceased was brought by his son Gajadhar at about 12.45 noon on 27.7.78. Since the headconstable present at the police station was not empowered to prepare the inquest, he prepared inquest report in respect of the dead body of the deceased and after preparing the inquest papers, he sent the same for post-mortem examination to Mortuary at Shahjahanpur through constable Santosh Kumar and Ram Swaroop. Further investigation was made by S.I. Bharat Singh who inspected the scene of occurrence on 29.7.78 and submitted a charge-sheet against the accused-respondents on 18.8.78. The accused-appellants were committed to stand trial before the Court of Session by Sri B. M. Joshi, the then Judicial Magistrate, Shahjahanpur, vide order dated 8.12.1978. After committal proceedings, the accused-appellants came up for trial before IIIrd Additional Sessions Judge, Shahjahanpur who framed charges against the accused-respondents Ishwari, Ram Swaroop, Bandho and Khayali under Section 147/302/323/149, I.P.C. and against accused-appellant Balak Ram under Section 148/302/323/149, I.P.C. The accused-appellants pleaded 'not guilty' to the charges framed against them and claimed trial. The accused-respondents denied to be belonging to one and the same party. They denied their participation in the occurrence in question in the manner suggested by the prosecution and maintained that they were falsely implicated into this case. 5. ACCUSED-appellant Ishwari stated that Chhote Lal was his real brother and Ram Murti was his cousin brother. Ram Murti was murdered about a month before the occurrence of this case. In that case, his elder brother Chhote Lal was a witness of fact. The deceased Sunder Lal was related to one Hajari. Hajari was responsible for committing the murder of Ram Murti. He stated that while he was coming from the market of Sultanpur village after making some purchases, the deceased Sunder Lal, his son Gajadhar asked him to restrain Chhote Lal from giving evidence. ACCUSED-respondent Ishwari stated that when he asked Chhote Lal not to give evidence against Sunder deceased, Chhote Lal asserted to give evidence. Thereupon Gajadhar, P.W. 1, Rameshwar P.W. 2 and Sunder (deceased) felt annoyed and challenged to see him. ACCUSED-respondent Ishwari stated that when he asked Chhote Lal not to give evidence against Sunder deceased, Chhote Lal asserted to give evidence. Thereupon Gajadhar, P.W. 1, Rameshwar P.W. 2 and Sunder (deceased) felt annoyed and challenged to see him. After three days of this talk, when he was coming from Sultanpur Bazar, Sunder (deceased), Rameshwar and Gajadhar assaulted him and caused a number of injuries. He pleaded that he also wielded lathi in exercise of his right of private defence of person which caused injuries to Sunder Lal (deceased). He maintained that Gajadhar and Rameshwar did not sustain any injuries. 6. ACCUSED-respondents Ram Swaroop, Bandho and Balak Ram denied their participation in the occurrence in question, while Khayali supported the defence version on the point that Sunder Lal (deceased), his son Gajadhar and son-in-law Rameshwar were responsible for assaulting accused-respondent Ishwari by means of spear and lathi. The accused-respondents examined Dr. A. P. Dixit as D.W. 1, who had medically examined the accused-respondent Ishwari on 27.7.78 at Primary Health Centre, Pooranpur, who was brought before him by constable Jagatvir Tyagi of police station Sehramau (North) and had found the following injuries on the person of the accused-respondent Ishwari : Injuries of Ishwari, accused-respondent : (1) Lacerated wound 3 cm. 0.5 cm. bone deep just above the top of head in mid line, 17 cm. above the root of nose. The edges are irregular, Adv. X-ray. (2) Punctured wound 1 cm. 1 cm. muscle of chest Rt. 3 cm. to the Rt. from vertebral column in its lower part at the level of Thoracic 11 vertebrae. (3) Punctured wound 1 cm. 0.5 cm. muscle deep over lt. buttock 8 cm. below behind the left Iliac crest. (4) Punctured wound 1 cm. 0.5 cm. muscle deep on front of lt. thigh inner side 32 above the kneebond. (5) Deep red contusion 1 cm. 0.5 cm., 2 cm. lateral to injury No. 4. Dr. A. P. Dixit, D. W. 1 opined that injury Nos. 1 and 5 were caused by means of some blunt weapons and that the injury Nos. 2, 3 and 4 which were punctured wounds were caused by means of some pointed weapon like Bhala. The duration of these injuries was about one day. Dr. lateral to injury No. 4. Dr. A. P. Dixit, D. W. 1 opined that injury Nos. 1 and 5 were caused by means of some blunt weapons and that the injury Nos. 2, 3 and 4 which were punctured wounds were caused by means of some pointed weapon like Bhala. The duration of these injuries was about one day. Dr. Dixit made an entry about all these injuries in his Medico Legal Register which was maintained in his dispensary and also proved the injury report Exh. Kha.-2. He has clearly opined that these injuries could have been caused to this accused respondent on 26.7.78 at 4.00 p.m. the date and time of the occurrence set up by the prosecution in the present case. He further stated that injury Nos. 1 and 2 were on the vital part of the body. He had also proved the injury reports of Gajadhar, P.W. 1 and Rameshwar, P.W. 2 which were prepared by Dr. Girish Bahadur Mathur on 30.7.78 and who was since dead. Those injury reports were Exh. Kha.-3 and Kha.-4, which reveal the position of these two persons who claimed to be the injured eye-witnesses of the occurrence as under : Injuries of Gajadhar, P.W. 1 : 7. GAJADHAR was examined on 30.7.78 i.e., after about 4 days of the occurrence at 6.30 p.m. at the instance of the police. On his person only one lacerated wound measuring 1-1/2 cm. 1/2 cm. muscle deep on left side head, 8 cm. above ear was found. According to the doctor, the said injury was caused by some blunt object. It was simple in nature and its duration was about half day old. No visible injury was found on the person of Rameshwar, P.W. 2. 8. D.W. 2 was Azmat Ullah who supported the defence version on the point that on the date and time of the occurrence, he was returning from Sultanpur Market, along with Khayali, accused-respondent and Chandan. He stated that when they came near the Grove of Deo Narayan, he saw that Gajadhar, P.W. 1, Sunder Lal (deceased) and Rameshwar, P.W. 2 came out from the grove. Sunder Lal (deceased) was armed with lathi and the other two, viz., Gajadhar and Rameshwar were armed with Suja, which was a pointed weapon, made of iron. He stated that Ishwari was ahead of him by 20-25 paces. Sunder Lal (deceased) was armed with lathi and the other two, viz., Gajadhar and Rameshwar were armed with Suja, which was a pointed weapon, made of iron. He stated that Ishwari was ahead of him by 20-25 paces. He stated that deceased (Sunder Lal) his son Gajadhar and son-in-law Rameshwar assaulted Ishwari, who sustained injuries and made his own defence. He stated that the assailants (Sunder Lal, deceased, his son Gajadhar and son-in-law Rameshwar) ran away. During the course of his cross-examination by the public prosecutor, he was unable to state as to whether any maarpeet or quarrel had taken place at the house of the deceased and Gajadhar. D.W. 3, constable Shyam Pal Singh was posted at police station Sehramau (North) at the time of occurrence. He had proved the F.I.R. dated 26.7.78, written by Headmoharrir Raghuraj Singh which was Exh. Kha.-5. 9. THE prosecution in support of its case had examined only two witnesses of the occurrence, they were Gajadhar, P.W. 1 and Rameshwar, P.W. 2 who was the brother-in-law of Gajadhar and has been residing in that very village. 10. P.W. 3 was Dr. B. C. Pal who conducted the autopsy on the dead body of the deceased. P.W. 4 was the formal witness who had prepared chick report and G. D. report and P.W. 5 was S.I. of police who had since handed over the charge of police station Sehramau (North) on 26.7.78, yet he had prepared the inquest report in respect of the deceased and sent the same for post-mortem examination. Unfortunately, the prosecution did not care to examine the Investigating Officer, who conducted the investigation into the case and who had prepared the site plan and rest contended only with the examination of that police Sub-Inspector who was almost a formal witness, who prepared the inquest report and had not even inspected the spot probably for the obvious reasons that he was under orders of transfer and had handed over the charge of police station Sehramau (North) on 26.7.78, that is a day earlier to the lodging of the F.I.R.. and right on the date of occurrence. 11. WE have heard Sri V. B. Singh, learned Additional Government Advocate for State of U. P. and Sri. P. N. Misra, learned Senior counsel for accused-respondents, and gone through the records of the case. 12. and right on the date of occurrence. 11. WE have heard Sri V. B. Singh, learned Additional Government Advocate for State of U. P. and Sri. P. N. Misra, learned Senior counsel for accused-respondents, and gone through the records of the case. 12. THE point which precisely arises for our consideration is to determine as to whether the accused-respondents were the aggressors or the deceased Sunder Lal, his son Gajadhar and son-in-law Rameshwar were the aggressors and further that the deceased Sunder Lal had died in consequence of the injuries inflicted to him in exercise of the right of private defence by the accused-respondent Ishwari. No doubt the deceased Sunder Lal appears to have died in consequence of the injuries caused to him in the incident which had ensued in between him, his son and son-in-law on the one hand and accused-appellant Ishwari and others on the other hand. The prosecution relied upon the direct evidence of Gajadhar, P.W. 1 and Rameshwar, P.W. 2 who both are closely related to each other as brother-in-law and were admittedly the son and son-in-law of the deceased Sunder Lal. 13. WE find from the record of the case that although the occurrence had taken place on 26.7.78, at 4.00 p.m. but the F.I.R. was lodged on 27.7.78 at 12.45 p.m. i.e., after 20 hours of the occurrence. Although the F.I.R. contains the explanation for the delay in lodging the F.I.R. wherein Gajadhar, P.W. 1 had stated that because of fear of the accused-respondents, he could not go to the police station right on the date of the occurrence and after arrangement of the bullockcart on the next day, he along with his father Sunder Lal, who succumbed to his injuries while on way to the police station, he went to police station and lodged the F.I.R. Ex. Ka.-1. Ka.-1. During the course of statement on oath before the Court below, Gajadhar, P.W. 1 well supported the case of the prosecution as averred in the F.I.R. and stated that since it was a rainy season and because of fear, he could not go to the police station right on the night and that he lodged written report at the police station on 27.7.78, yet during the course of his cross-examination, he stated that he had informed to the head constable of the police station that all the five accused persons were close friends, this fact was, however, not mentioned in the F.I.R. He stated that the said F.I.R. was written by the head constable. He further stated that Sub-Inspector of Police had enquired about the incident from him and he narrated this fact that all the five accused persons were close friends before the Investigating Officer. But this fact was not mentioned in his statement recorded by the Investigating Officer. He volunteered to state that the accused-respondents had reached to the police station earlier and that they might have given some money to the Police Sub-Inspector. The chick report shows that on the basis of the information conveyed by Gajadhar, P.W. 1, the Case Crime No. relating to the present incident was mentioned as 63-A. It obviously follows that prior to the registration of this case crime number, Case Crime No. 63 relating to the incident of marpeet in question has already been registered at the police station at the instance of the accused respondents. 14. SRI Gajadhar, P.W. 1 further stated during the course of his cross-examination before the Court below that he alone had taken his father to the police station from his village for the purpose of lodging report and that no other villager had followed him, nor any villager met him at the police station. He stated that he remained lying at the police station during night and on the next day, his report was written at the police station at about 10.30 a.m. In another breath, he stated that he went to the police station on the next day of the demise of his father and on the 3rd day report about the occurrence in question was written at the police station. He stated that first of all he narrated the entire incident to the Sub-Inspector of Police who was present there and then certain constables were sent to his village who brought bloodstained earth at the police station and then his report was written. He then stated that when he came back to his village there, he met the police Sub-Inspector. He was unable to state as to when police Sub-Inspector came to his village. He stated that the dead body of the deceased was despatched from thana to Shahjahanpur on the next day of his reaching at the police station. He stated that he kept the dead body of his father at the police station and remained there. He was unable to state as to whether any Sub-Inspector of Police remained present at the police station or not. But in his presence the police Sub-Inspector did not ask the Munshi that his report be written. He maintained that Sub-Inspector did not ask the clerk constable to write his report. He remained sitting at the door of the police station. He further stated that he narrated the incident to the Sub-Inspector and the clerk constable who was sitting inside the police station who wrote down the report. He stated that when he along with the police constable took the dead body of deceased to Shahjahanpur, he stayed in a village during night and on the next day, he got a Tanga then he reached Shahjahanpur at about 2.00 p.m. and from there he boarded a bus at 8.00 p.m. and stayed at village Mailani. On the next day, morning by rail from Mailani he came to Sehramau, which is also known as Jograjpur, from where he reached to his village and there he found the Police Sub-Inspector. He stated that the Police Sub-Inspector had enquired about the place of occurrence. He maintained that he got written in his report that Balak Ram had assaulted his sister. He again stated that Balak Ram had assaulted his sister and Ishwari remained standing. Ishwari himself did not assault his sister. He stated that the Police Sub-Inspector had enquired about the place of occurrence. He maintained that he got written in his report that Balak Ram had assaulted his sister. He again stated that Balak Ram had assaulted his sister and Ishwari remained standing. Ishwari himself did not assault his sister. But this fact was not written in the F.I.R. The fact that while his father was going to lodge a report regarding the maarpeet of his sister Sarojini, the accused respondents had threatened to kill his father was also not mentioned in the F.I.R. It was suggested on behalf of the accused respondent that this witness has been telling a lie. The circumstances that the F.I.R. about the occurrence was lodged by this witness on 27.7.78, and that in his statement on oath, this witness stated that he immediately started for the police station and took the dead body of his father there and remained there throughout night would be inconsistent with the version of the F.I.R. If it was a fact that this witness had reached at the police station right on the night of the occurrence along with the dead body of the deceased, in the normal course his F.I.R. should have been written right on the night of the occurrence and the machinery of law should have been set into motion immediately. 15. THE circumstances that the alleged motive of maarpeet of his sister by the accused-respondents was not mentioned in the F.I.R. and further the fact that the complainant omitted to mention in his F.I.R. that all the accused-respondents were close associates of each other, fully go to show that the statement of Gajadhar, P.W. 1 regarding the incident in question was wholly unreliable. 16. THAT apart, the circumstances that accused-respondent Ishwari had sustained as many as three punctured wounds and one lacerated wound and the circumstances that clear case of the defence was that when the deceased and his son tried to belabour the accused-respondent Ishwari, he wielded lathi in exercise of his right of private defence and the circumstances that the complainant failed to offer any plausible explanation regarding the injuries of the accused-respondent Ishwari in his F.I.R. or statement on oath fully go to show that the complainant had suppressed the true genesis of the occurrence. The circumstances that the complainant Gajadhar, P.W. 1 was unable to state as to by whose lathi he was hit and the circumstances that he got his injuries examined after about 4 days of the occurrence and further that in the injury report, doctor found only one lacerated wound measuring 1-1/2 cm. 1/2 cm. muscle deep on the left side of head and had opined that it was only half-day old belies the statement of this witness on the point that he had sustained any lathi blow at the hands of the accused-respondents in the occurrence of this case. As such, we find that the complainant Gajadhar, P.W. 1 is wholly unreliable witness who suppressed the true genesis of the occurrence and who manipulated his injury after about 3 days of this occurrence. 17. COMING to the eye-witness account of P.W. 2, Rameshwar, we find that he was the real brother-in-law of the complainant inasmuch as that the complainant's sister was married to him. It was admitted to this witness in his cross-examination before the Court below that Ishwari, accused-respondent had lodged a report against him and the said case was going on at Shahjahanpur in the Court of Deputy Saheb. He further admitted that in the said case Khayali, accused-respondent was a witness against him. He claimed to be empty handed at the time of occurrence. He stated that he immediately came to know that his Sasur, viz., deceased Sunder Lal had died and then Gajadhar, P.W. 1 had gone to lodge a report about the occurrence. He did not accompany Gajodhar to the police station. He stated that along with Gajadhar, one Indal had gone whereas Gajadhar stated that nobody went along with him. If it was a fact that this witness Rameshwar, P.W. 2 was present at the scene of occurrence and was also assaulted by means of lathi by any of the accused-respondents, in the normal course he must have accompanied the compla Gajadhar to the police station, who himself was injured and was taking away his injured father, viz., the deceased who was closely related as father-in-law of this witness. The absence of any injury having been found on the person of this witness belies his statement on the point that he had witnessed the real occurrence. The absence of any injury having been found on the person of this witness belies his statement on the point that he had witnessed the real occurrence. It appears to us that it was rightly suggested by the accused-respondents that this witness has come forward to depose in favour of the prosecution because of his close relationship with the complainant and the deceased. Thus to us this witness too appears to be wholly unreliable and was rightly disbelieved by the Court below. 18. THUS to sum up, we find, that the motive of the crime was not properly established. The delay in filing the F.I.R. as also the injuries of the accused-respondent Ishwari were not properly explained. The place of occurrence was not properly explained. The place of occurrence was not properly established inasmuch as that even the Investigating Officer who must have inspected the scene of occurrence and examined witnesses was never examined. The cross-case of the incident in question in which accused-respondent Ishwari had sustained injuries was in progress and the injuries of Ishwari having not being properly explained, we are, of the opinion that the approach of the learned Court below in acquitting the accused-respondents was quite correct. It warrants no interference by this Court. In the result, we uphold the impugned order of acquittal and find no force in this appeal. It is hereby dismissed. 19. LET a copy of this judgment along with the record of this case be sent to the Court below.