JUDGMENT 1. - On 9.2.95 the then Addl. Sessions Judge, Rajgarh District Alwar Mr. Abdul Hafiz Khan convicted Rampal, his brother Ram Karan, his son Chiranjee, Lala Ram and Mangia under sections 148 and 302 read with Section 149 IPC and sentenced them to rigorous imprisonment for one year each on the first count and to imprisonment for life and a fine of Rs. 100/- or in default of its payment further rigorous imprisonment for one month each on the second count, at the same time he convicted them as well as Chotey Lal another brother of Rampal, Heeralal brother of Lala Ram and Herla another son of Ram Pal under section 447 IPC and sentenced each of them to simple imprisonment for three months further more he convicted the last named three accused Chotey Lal, Heerlai and Herla under section 323 IPC and the remaining accused under section 323 read with Section 149 IPC and sentenced each of them to rigorous imprisonment for one year directing that ail the substantive sentences of imprisonment were to run concurrently. Against their convictions and sentences the eight of them have filed the instant appeal. 2. Succinctly stated the prosecution case as embodied in the FIR lodged by Sanwal Ram PW 1 was that on the fateful day of 16.4.91 at about 5 A.M. a cow owned by Rampal accused strayed into the adjoining filed of the complainant side whereupon the complainant/informant Sanwal Ram PW 1 and Ghamsee deceased went over to the house of Rampal accused and there lodged a protest with him as well as with his brother Karan and Chotey Lal who at that time proclaimed that the matters would continue as before and at the same time held out a threat that they would deal with them. Thereafter at 9 a.m. or so Rampal, Ram Karan, Lala Ram, Chiranjee and Mangia, accused out of whom Ram Karan accused was armed with a piece of wood used as a support to link two legs of a cot and Mangia accused with a 'tanchia' and the rest with lathis arrived at the spot and immediately opened the attack and hit blows with their respective weapons on the head and other parts of the person of Ghamsi deceased and when Sanwal PW 1 complainant and Shrawan PW 2 tried to rush to the deceased's rescue they were set upon by one Mst. Teeja who gave a lathi blow on the complainant's left elbow then Herla accused rushed to the spot and gave a 'tachia' blow on the complainant's head, he was followed by Heeralal accused to the spot who on arrival gave a lathi blow on the head of Shrawan PW 2, then Chotey Lal accused approached Shrawan PW 2 & hit a lathi blow on his right shoulder. Thereafter Rampal, Ram Karan. Lala Ram, Chiranjee and Mangya accused belaboured the deceased with their weapons, causing him to collapse at the spot. At that time the duo Mohan Lal and Khillu arrived at the spot and on their challenging the culprits they took to their heels. The deceased was removed in an animal-driven cart to the Govt. Hospital at Rajgarh from where he was referred onwards to the Govt. Hospital at Alwar. In the Govt. Hospital at Alwar the deceased succumbed to his injuries at 5.40 p.m. the same day. Thereafter the FIR was lodged at 11 p.m. by Sanwal Ram PW 1. Autopsy on the dead body was performed by Dr. Mahendra Kumar Gupta PW 9 whose report is Ex.P 11. The case was investigated into by the police. In due course, the weapons attributed to have been carried and used by the accused were recovered from them in persuance of their respective disclosure statements after their arrest. On these facts after completion investigation the accused were challaned by the police and were committed to the court of Sessions to stand their trial by formal order of commitment passed by the ilaqa Magistrate. In support of its case the presecution examined a total of 14 witnesses including the two eye witnesses, the Doctor performing the post mortem and the two investigating officers S.I. Radhey Gopal, PW 13 and S.I. Ram Naresh Yadav PW 14. In their statements at the close of the prosecution case the accused denied the allegations against them and asserted that on that day Budha PW 3 and one Khillu were raising a earthen boundary wall in their field comprising khasra No. 55 and when on their protest neither the deceased nor the injured from the deceased side desisted they had called the villagers. They produced two witnesses namely Rampal DW 1 and Heeralal DW 2 in their defence. The result of the trial has already been noticed at the out set. 3. They produced two witnesses namely Rampal DW 1 and Heeralal DW 2 in their defence. The result of the trial has already been noticed at the out set. 3. The arguments of the learned counsel for the appellants are (i) that the FIR was delayed, (ii) that the version as laid before the trial Court by the two eye-witnesses was at variance with that set out in the FIR in as much as according to two eye witnesses in Court the previous threat to deal with them had been held out by Rampal accused now appellant and the two others at the well and the deceased was belaboured and fatally assaulted the injured not in his field but while he was carrying back water from the well according to Sanwal Ram PW 1 and returning after drinking water according to Shrawan PW 2, (iii) that there was no 'sharp weapon injury on the deceased therefore 'tanchia' attributed to have been carried by Mangia appellant could not have been used by him in the fatal assault perpetrated on the deceased, (iv) that there were two blunt weapon injuries both on the head of the deceased which had proved fatal as the remaining third injury was an abrasion that could well have been caused by scuffle etc. and these two injuries could not well have been caused by as many as four accused appellants Rampal, Ram Karan, Lala Ram and Chiranji which falsified the prosecution version and indicated that Choteylal, Heeralal and Herla appellants had been roped in for good measure as they were from the same family, (v) that the investigating officer at the time he prepared the rough site plan of the spot had found a earthen boundary wall existing there which had been freshly raised and the same to have been freshly partially demolished which indicated that the quarrel had erupted when the accused side had protested over the rising of the earthen boundary wall in their field, (vi) that as there were injuires on the persons of the accused appellants two on the person of Rampal appellant a lacerated wound and an incised wound medico legal examination report of which is Ex. D. 4, six on the person of Chotey Lal appellant two lacerated wounds, three abrasions whose medico legal examination report is Ex.D. 2 and one injury on the person of Heera Lal appellant vide Ex.D. 3 which was a bruise resulting in a fracture, (vii) that in the cross case challan had been presented against Shrawan PW 2, Sanwal Ram PW 1, Budha, Khillu and Ghamsi, who was named as accused but had died, under sections 147, 148, 447, 323, 324 and 325 read with Section 149 IPC, the challan report being Ex.D. 6 and (viii) that the probability was that the deceased and the injured of this case had sustained their injuries while the appellant's side was exercising their right of private defence of their persons and property which they could not be said to have exceeded and therefore no offence was made out entitling the appellants to acquittal after acceptance of their appeal. 4. The learned Public Prosecutor appearing for the State has argued that as the informant and the other eye-witnesses were busy in looking-after the deceased who was moved by them firstly to the Govt. Hospital at Rajgarh and then to the Govt. Hospital at Alwar the FIR could not be lodged earlier and was not in the circumstances a delayed document, that the evidence of the two eye-witnesses which there was no reason to dis-believe or discard proved the prosecution case beyond a reasonable doubt, that Mst. Mangia's tanchia may well have failed to find its mark on the person of the deceased thereby explaining the absence of a sharp weapon injury on his body and that in their statements at the close of the prosecution case the accused appellants had nowhere said a word that they were carrying some weapon or weapons or had used there in defence of either their persons or their family members or for that matter in defence of their property therefore it could not be a case of private defence either of their persons or their property and the verdict of the trial court was sound and called for no interference by this Court in appeal. 5. Now the occurrence had taken place at 5 a.m. or so in the area of village Khar. After the occurrence the deceased was removed in an animal driven cart forthwith to the Govt. 5. Now the occurrence had taken place at 5 a.m. or so in the area of village Khar. After the occurrence the deceased was removed in an animal driven cart forthwith to the Govt. Hospital at Rajgarh where the Police Station too is situated the distance of the spot of occurrence from the Police Station as given in the FIR is just 3 Kilometers. Therefore the animal driven cart had to cover that distance of no more than 3 kilometers and could comfortably cover that in at most one hour. The prosecution has nowhere bothered to bring on the record at what time the deceased had reached the Govt. Hospital at Rajgarh and at what time he was referred onwards to the Govt. Hospital Alwar by the Medical Officer. The Medical Officer of the Govt. Hospital at Rajgarh has neither been cited nor examined as a prosecution witness. Referral slip has also not been produced though the same could easily have been produced if it existed from the record of the Govt. Hospital at Rajgarh. The deceased was taken onwards to Alwar in a motorised vehicle and as there was no medico legal examination in the Govt. Hospital at Rajgarh presumably he was at once and without loss of time asked by the Medical Officer to be taken onwards to Alwar no doubt because a better/bigger Hospital exists at Alwer. There is no explanation why the Medical Officer at Govt. Hospital at Rajgarh did not inform to SHO of Police Station Rajgarh in writing of the arrival of the deceased in an injured condition as it was a medico legal case. The record is silent as to at what time the deceased reached to the Govt. Hospital at Alwar. The only fact forthcoming is that he died at 5.40 p.m. on that day. Copy of the FIR by way of special report reached the ilaqa Magistrate not before 8.30 a.m. on 18.4.91, There is no explanation for this delay in sending this special report to the ilaqa Magistrate. The informant was conscious of this delay in lodging the FIR and an attempt was made to explain away this delay some hour or the other by stating that as they were busy in attending to the deceased before then they could not lodge the report earlier. The informant was conscious of this delay in lodging the FIR and an attempt was made to explain away this delay some hour or the other by stating that as they were busy in attending to the deceased before then they could not lodge the report earlier. Needless to say this explanation has to be taken in the circumstances with the proverbial pinch of salt. The FIR in this case is thus indeed a much delayed document. 6. The version in the FIR was that the threat of dealing with them was held out to the informant (complainant) and the deceased at the house of Rampal accused now appellant and the two others when they reached there with the errant cow in tow, whereas the case as laid before the court at the trial was that there was no cow in tow and the threat was held out at the well where Rampal appellant had gone for a bath, furthermore the version in the FIR was that the five appellants Rampal, Ramkaran, Chiranjee and Mangya armed as aforesaid had sallied out to the field of the deceased and hit him blows on his head and other parts of his body and the others were as atacked(sic) at that time as afore noticed when they rushed to his rescue then and there, whereas the case as laid before the trial Court was that the deceased and for that matter his rescuers were assaulted and injured while the deceased was returning from the well either carrying water or after drinking water. Needless to say there this contradictions are hard to reconcile. There was no sharp weapon injury on the deceased. This cannot be explained away by saying that the 'tachia' which Mangia appellant is attributed to have carried and to have used on the deceased together with the other four culprits not once but repeatedly if the narrations of the two eye-witnesses are to be believed had some how or the other miraculously fail to strike home and hit the deceased. The participation in the crime of Mangia appellant is thereby exposed to be a outright concoction. A look at post mortem report Ex.P. 11 shows that the deceased had two blunt weapon injuries on his head which had proved fatal. The participation in the crime of Mangia appellant is thereby exposed to be a outright concoction. A look at post mortem report Ex.P. 11 shows that the deceased had two blunt weapon injuries on his head which had proved fatal. The body of the deceased had just an abrasion to show besides these two blunt weapon injuries and the abrasion could well have been the result of a scuffle etc. If Rampal, Ram Karan, Lala Ram and Chiranjee appellants armed with lathis and a piece of wood used as a support to join the two legs of one side of a cot which is a more formidable weapon than the lathis were used by the these four appellants to hit blows to the deceased there would not be just two injuries as a result. This shows that if at all these four appellants namely Rampal, Ramkaran, Lal Ram and Chiranjee had if at all used their weapons to hit blows to the deceased for the two injuries could only be result of two blows and not more. Chotey Lal, Heeralal and Herla appellants are from the appellants family and the possibility that they too had been roped in for good measure like Mst. Teeja who was found innocent on police investigation and was not so much as challaned cannot be ruled out. Their participation in the crime is not free from reasonable doubt either. Now the investigating officer did find the earthen boundary wall at the spot to have been freshly raised and a part thereof to be freshly lying demolished. There was no history whatsoever of past enmity or bad blood between the parties and the incident of the errant cow was some four hours or so before the occurrence said to have erupted at 9 a.m. The incident could not well have erupted over the matter of the errant cow pure and simple. The circumstance that the earthen boundary wall was found to have been freshly raised and which was freshly partially demolished as this much was observed by the investigating officer and is duly shown in the site plan prepared by him Ex.P 3 is an indicator that the incident had taken place over the matter of that wall. From the accused's side three persons namely Chotey Lal, Heeralal and Rampal appellants sustained injuries on their persons as aforesaid. There is no.. From the accused's side three persons namely Chotey Lal, Heeralal and Rampal appellants sustained injuries on their persons as aforesaid. There is no.. explanation forth coming from the prosecution side for their injuries. The prosecution has thus suppressed the immediate cause of the occurrence. That three persons from the side of the accused appellant had injuries on their persons one injury from this side being with a sharp weapon on the person of Rampal appellant shows that at least one sharp weapon was used from the other side. In the circumstances the argument put forward by the learned counsel for the appellant that the deceased and the others from the complainant's side had suffered their injuries while the appellants' side were exercising their legitimate right of private defence has both force and substance. 7. In view of what we have said above the prosecution case is not free from reasonable doubt rendering the convictions of the appellants and their sentences un-sustainable. Accordingly we accept this appeal, set aside the convictions and sentences of all the eight appellants and acquit them of the charge against them. The fine if deposited is to be refunded to them. Appellants Nos. 1 to 5 namely Rampal, Ram Karan, Lala Ram, Chirani and Mangya who are in custody are to be released forthwith if not wanted in any other case. Appellants Nos. 6, 7 and 8 namely Chotelal, Heeralal and Harla, are on bail. They need not surrender & their bonds stand discharged. *******