JUDGMENT V.K. Agarwal, J. 1. This appeal by the State is directed against the judgment dated 29.10.80 is Sessions Trial No. 19/86 by the Hlrd Additional Sessions Judge. Dumoh whereby the accused/respondents have been acquitted from the charge under sections 148 I.P.C., 302 I.P.C. alternatively 302 /149 I.P.C. 307 I.P.C. alternatively 307/149 I.P.C. for having formed an unlawful assembly with the common object of murdering Chotelal and attempt to murder Hiralal andGulli. 2. The accused/respondents No. 4, 5, 6 Komal, Devi and Badri are brothers while accused/respondent No. 2 Brindawan is the son of accused/respondent No. 6 Badri and accused/respondent No. 3 Nandram is the son of accused/respondent No. 5 Devi. Deceased Chotelal was the son of Hiralal (P.W. 11) and brother of Gullia @ Gulli (P.W. 12), who were also injured in the incident. The agricultural lands of complainant party and that of accused/respondent No. 2 to 6 are adjoining each other. They had previous enmity regarding the passage over the said lands. Proceedings under section 107 of Cr. P. C. between the parties were also drawn by the S.D.M. 3. Prosecution case slated in brief is that, on 21.11.85 in the morning at about 6 A.M. Chotelal, Gulli and Hiralal were carrying fodder in their bullock-cart. Chotelal was driving the bullock-cart and Gulli (P.W. 12) and Hiralal (P.W. 11) were walking, behind the cart. The accused/respondent obstructed them near their house in the field and assaulted them. Chotelal was assaulted by accused/respondents Khujji and Brindawan by 'Kalarna' and 'Pharsa', on account of which Chotelal I ell down in the courtyard of accused/respondent Khujji. Thereafter complainant Gulli (P.W. 12) and Hiralal (P.W. 11) were also assaulted. The accused thereafter ran away. Chotelal was then taken to the hospital in the bullock-cart and Gulli (P.W. 12) lodged the F.I.R. (Ex. P-17) at Police Station, Denioh Dehat on the basis of which offence was registered. 4. During investigation, the Investigating Officer, Sub-Inspector Ajay Kumar (P.W. 24) sent the injured Chotelal, for medical examination vide requisition (Ex. P-18). Other injured Gulli and Hiralal were also sent for medical examination. Dr. A.K. Tiwari (P.W. 13) examined Chotelal and found the following injuries on his person as per his report (Ex. P-10) :- (1) One incised wound 5" x 1" x 1" inter parietal region of skull parallel to mid line. P-18). Other injured Gulli and Hiralal were also sent for medical examination. Dr. A.K. Tiwari (P.W. 13) examined Chotelal and found the following injuries on his person as per his report (Ex. P-10) :- (1) One incised wound 5" x 1" x 1" inter parietal region of skull parallel to mid line. (2) Skull bone is also incised 3" x 1/5" x bone thickness, inter parietal bone. (3) One incised wound 1" x 1/4" x skin deep left lateral aspect of chest wall. Injuries were caused by hard and sharp object. The patient was admitted in the hospital. 5. Dr. A.K. Tiwari (P.W. 15) also examined, injuried Hiralal (P.W. 11) and found the following injuries on his person, as per (Ex. P-21): (1) Swelling 3" x 2" on left fore arm below the left elbow. x - ray was advised. The injury was caused by hard and blunt object. 6. Further, Dr. A.K. Tiwari (P.W. 15) also examined Gulli (P.W. 12) and found the following injuries on his person as per his report (Ex. P-22): (1) Incised wound 3" x 1/2" skin deep upper part of fore arm. (2) Swelling 3" x 2" on left elbow. (3) Swelling 2" x 2" back of left hand. (4) One incised wound 1 cm. x 1 c. m. x skin deep root of left thumb. (5) One incised wound 2" x 1/2" x skin deep lateral aspect of right wrist. (6)Abrassion 2" x 2" below right knee joint. X-ray was advised regarding injury No. 2 & 3. 7. During investigation blood stained soil and ordinary soil was seized from in front of the house of accused/respondent Khujji, as per seizure memo (Ex. P-8) by Town Inspector. B.L. Aharwal (P.W. 23). The seizures of weapons of offence were also made from the accused/respondents. After completion of other usual formalities during investigation, charge sheet was filed against the accused/respondents. 8. The Learned trial court trained charges for offence punishable under section 148, 302 alternatively 302/149 of I.P.C. and 307 alternatively 307/149 of I.P.C. The accused/respondents denied to have committed the offence. The defence of accused/respondent Khujji was that, while he was at his house, deceased Chotelal and injured Gulli and Hiralal come to his house and started abusing him and when he came out of his house, they assaulted him and his wife. The defence of accused/respondent Khujji was that, while he was at his house, deceased Chotelal and injured Gulli and Hiralal come to his house and started abusing him and when he came out of his house, they assaulted him and his wife. He called accused/respondent Brindawan, who was going to the field, who came back and tried to intervene, upon which the complainant Gulli and Hiralal and deceased Chotelal also assaulted him. Thereafter, they had assaulted the injured Gulli, Hiralal and deceased Chotelal. Substantially, similar defence has also been taken by the accused/respondent No. 2 Brindawan. Remaining respondents have denied all the charges and have stated that they were not present on the spot. The learned trial court alter appreciation of evidence found that the deceased as well as the injured Hiralal (P.W. 11) and Gulli (P.W. 12) were the aggressors and that, the accused/respondents had assaulted them in the exercise of their right of private defence. 9. The learned trial Court accepted defence version and found that the accused/respondents acted in the exercise of right of their private defence. Accordingly, they were acquitted. 10. Hiralal (P.W. 11) and Gulli (P.W. 12) narrating the incident have stated that, while they were carrying fodder in a bullock-cart, driven by deceased Chotelal, the accused/respondents had assaulted them in front of the house of accused/respondent Khujji, as a result of which, deceased Chotelal as also Hiralal (P.W. 11) and Gulli (P.W. 12) received injuries. They thereafter had taken deceased Chotelal to the hospital and Gulli (P.W. 12) lodged report (Ex. P-17). The above witnesses have tried to state that the incident took place on the passage in front of the house of accused/respondent Khujji. 11. In this connection the learned trial Court has found that, the incident did not take place on the passage, but in fact took place in the courtyard of accused/respondent Khujji. In this connection it may be noted that, the courtyard of Khujji is at a distance of 15 to 20 paces from the common passage, as would be evident from the statement of Manohar (PW 3) who has also staled in para 9 that the court yard of accused/respondent Khujji is surrounded by fencing and that there is a gale therein for entrance. Similar is the statement of Sukhrani (P.W. 7). 12. Similar is the statement of Sukhrani (P.W. 7). 12. It may further be noticed in the above context that Sukhrani (P.W. 7) has stated that, the quarrel was taking place in the courtyard of accused/respondent Khujji. Anandrani (P.W. 2) also states that Chotelal was lying in the courtyard of Khujji. Phoolrani P.W. 1) has also similarly stated that, deceased Chotelal had fallen down in the courtyard of Khujji. 13. Hiralal (P.W. 11) and Gulli (P.W. 12) have tried to state that, the accused/persons had assaulted them and deceased Chotelal, whereafter, Chotelal ran towards the courtyard of accused/respondent Khujji and fell down there. In the above context, it is noticed that statements of Gulli (P.W. 12) and Hiralal (P.W. 11) are inconsistent in many particulars, as has been discussed in detail by the trial court. It appears that, the above statements of Hiralal (P.W. 11) and Gulli (P.W. 12) have been given only to explain the position as to how Chotelal was found in the courtyard of accused/respondent Khujji, after the incident of assault had taken place on the common passage, which is at a distance of 15 to 20 paces from the courtyard of accused Khujji. It is unnatural that had Chotelal, Hiralal and Gulli been assaulted on the common passage, Chotelal would have ran toward the house of courtyard of accused/respondent Khujji. 14. Moreover, the statement of Gulli (a) Gullia (P.W. 12) is that, initially assault took place in the bullock-cart and that, the bullock-cart was stained with blood and naturally the soil of the common passage would also have got blood stained. But, it appears that the blood stained soil was only recovered from the courtyard of accused/respondent Khuji, which would give rise to an inference that, there was no blood stained earth either on the common passage or on the bullock-cart, which negatives the statement of Gulli (P.W. 12). 15. It is also to be noticed in this connection that Phoolrani (P.W. 1) has stated in para 9 that the deceased Chotelal and injured Hiralal (P.W. 11) and Gulli (P.W. 12) had entered the house of accused/Khujji and assaulted Khujji his wife and Brindawan. This statement finds support from the statement of A jay Kumar (P.W. 24) who has stated that, he had sent accused/respondent Khujji and Brindawan for medical examination, as per requisition (Ex. P-38 and P-39). 16. Dr. This statement finds support from the statement of A jay Kumar (P.W. 24) who has stated that, he had sent accused/respondent Khujji and Brindawan for medical examination, as per requisition (Ex. P-38 and P-39). 16. Dr. V.P. Brajpuiiya (P.W. 2) has stated that, he had examined accused/respondent Khujji and found following injuries on his person, as per (Ex. D-6): (1) Bruise 1" x 1" an dorsum of left hand at thumb. (2) Abrasion 2" x hairline on dorsum of left fore arm. (3) Abrasion 1" x hairline on left shoulder. (4) Bruise 1" x 1" on parietal region. (5) Bruise 2" x 1" on right fore arm. Similarly he also examined injured accused/respondent No. 2 Brindawan and found the following injuries, as per (Ex. D-7): (1) Bruise 3" x 1" on dorsum of left hand. (2) Bruise 1" x 1" on left fore arm. 17. There is no explanation whatsoever given by Hiralal (P.W. 11) and Gulli (P.W. 12) as to how these injuries ware caused an the person of respondents Khujji and Brindawan. Hiralal (P.W. 11) has stated in this connection that, he cannot say as to how those injuries were caused. In the circumstances, it is clear that, the injuries to accused/respondents have not been explained by the prosecution evidence. It is also noticed that, the statements of independent eye witnesses do not support the prosecution story. 18. In this connection reference may be made to the statement of Manohar (P.W. 3) who initially slated that, he has no relation with the deceased or the injured persons, but later on he admitted during cross-examination that, he is the son-in-law (married to the niece of injured Hiralal) of Hiralal (P.W. 11). It is therefore clear that, Manohar (P.W. 3) is closely related to the complainant. He is facing criminal proceedings under section 107 and 115 of Cr. P.C. against the accused/respondents. Clearly, he is inimical towards the accused/respondents as he belongs to the faction of the complainant /injured. It may by noticed that, he states that, he had heard the accused/respondents Khujji and Brindawan raising alarm for help. It is obvious that accused/ respondents Khujji and Brindawan would not have raised alarm had they been the assailants. P.C. against the accused/respondents. Clearly, he is inimical towards the accused/respondents as he belongs to the faction of the complainant /injured. It may by noticed that, he states that, he had heard the accused/respondents Khujji and Brindawan raising alarm for help. It is obvious that accused/ respondents Khujji and Brindawan would not have raised alarm had they been the assailants. In fact, as has been noticed by the trial court, the raising of alarm by accused Khujji and Brindawan is indicative of the fact that, they were being assaulted by the injured and deceased, as is their defence. 19. The statement of prosecution witnesses has been discussed in detail by the learned trial court and it has been found that, in view of various material iscrepancies in the statement of Hiralal (P.W. 11) and Gulli (P.W. 12) the same cannot be relied upon. Moreover, the evidence of other witnesses out of whom Phoolrani (P.W. 1), Anandrani (P.W. 2) Sukhrani (P.W. 7) and Jamna (P.W. 8), who have also been declared hostile do not support the prosecution case. It has also been noticed that, Bhagwandas (P.W. 9) intact is not an eye witness of the incident, but was informed about the same Udairam (P.W. 25). He is also inimical to accused/respondent and is facing proceedings under section 107 and 116 of the Cr. P. C. From his statement it also appears that, he himself did not witness the incident, as he has tried to state during trial, because there are material omissions in this regard, in his police diary statement (Ex. D-4). It is also noticed that, from the map prepared by Patwari also, it does not appear that, he was present on the spot of incident and was an eye witness to the incident. Therefore, the statement of injured witnesses Hiralal (P.W. 11) and Gulli (P.W. 12) remains uncorroborated. The learned trial court has also noticed that, their statement are highly discrepant and they being inimical lo the accused have tried to make improvement in their statement which do not inspire confidence. They have not given the truthful version of the incident. 20. It would thus appear that, the incident took place in the courtyard of accused/respondent Khujji which is surrounded by fencing with a gate therein, and is at a distance of 15 to 20 paces from the common passage. They have not given the truthful version of the incident. 20. It would thus appear that, the incident took place in the courtyard of accused/respondent Khujji which is surrounded by fencing with a gate therein, and is at a distance of 15 to 20 paces from the common passage. There was no justification for the complainant/injured and deceased to have gone to the courtyard of accused/respondent Khujji. It is also noticed that, accused/respondent Khujji and Brindawan had also received injuries during the incident, which have not been explained by the prosecution. The injuries land support to their defence that, they were assaulted by the deceased as well as by the injured persons, who came lo the house of accused/respondent Khujji for creating trouble. Thus, in fact the deceased and injured persons were the aggressors. In the circumstances, the finding of the trial court that the accused/respondents had a right of private defence is based on appreciation of evidence and does not appear to be perverse. In the circumstances, even if other view is possible interference in appeal against acquittal is not called for. 21. Accordingly, the appeal fails and is hereby dismissed.