HARI NATH v. STATE OF UTTAR PRADESH — 1999 DIGILAW 1674 (ALL)

S. K. PHAUJDAR, J. ( 1 ) BOTH the above appeals are directed against the judgment and order 22-4-1978 recorded by the Special Addl. District and Sessions Judge, Mirzapur, in ST No. 87 of 1974. This very judgment was challenged in two appeals - Crl. Appeal No. 1547 of 1978 at the instance of accused-appellant Dangar challenging his conviction and sentence, and Govt. Appeal No. 2071 of 1978 by the State praying for interference in the quantum of sentence of this Dangar. Death of Dangar was reported and confirmed. Accordingly, an order was recorded on 18-8-1994 indicating abatement of these two appeals due to death of Dangar. Of the present two appeals, one is against conviction of the four appellants, Hari Nath, Vishwa Nath, Mahant and Shiv Nath in the aforesaid trial and against the sentence imposed on them under Secs. 304/149 IPC directing their rigorous imprisonment for 7 years (Crl. Appeal No. 1246 of 1978 ). The other appeal (Govt. Appeal No. 2108 of 1978) is directed against the finding of acquittal of certain other accused persons in the same trial. ( 2 ) AT the trial nine persons stood charged for different offences under Secs. 147, 148, 302 and 307/ 147 IPC on the basis of charge-sheet that was submitted in relation to case Crime No. 97 of 1972 relating to P. S. Kachhawa, District Mirzapur. The FIR was drawn up on 18-11-1972 at 7 p. m. for an incident that had taken place on the same date at about 5p. m. One Ram Dular named nine persons in the FIR, had alleged that he was the chowkidar of village Khamaria, his brother Kanchan was going back after taking care of his cultivation when, near the arhar field of Parmoo, the nine persons named in the FIR attacked him. The FIR described what were the weapons held by each of them. These accused persons started assaulting Kanchan with their weapons, namely, ballam, gandasa and lathi. The victim raised an alarm which attracted the complainant and some others including Ram Harakh and Ram Baran as also one Kaurhia. When they rushed to the help of the victim, they too were attacked and assaulted. On their hue and cry Kallu Singh, Sahti, Hari Nath, Sant Lal, Jamuna and Bachchan ran to them. They had witnessed the assault by the accused persons by ballam, gandasa and lathi. When they rushed to the help of the victim, they too were attacked and assaulted. On their hue and cry Kallu Singh, Sahti, Hari Nath, Sant Lal, Jamuna and Bachchan ran to them. They had witnessed the assault by the accused persons by ballam, gandasa and lathi. On their intervention, the accused persons fled away. The complainant asserted that in self-defence they had also assaulted the accused persons. Kaurhia died, as a result of ballam injury, at the spot. The complainant further asserted that he had old rivalry with Basawan on account of land dispute. That was stated to be the motive behind the concerted attack on his brother Kanchan and on the eywitnesses. Injured Kanchan, Ram Harakh and Ram Baran were taken on charpoy and the dead-body of Kaurhia was also carried to the police station. The statement of Ram Dular was recorded in the dialect he had spoken. ( 3 ) IT is noteworthy that a counter case bearing case Crime No. 97a under Secs. 147, 148, 324 and 323 IPC was lodged covering the counter version on the statement of Dangar (now deceased) against Dular, Kanchan, Bachhan, Munni lal, Jamuna, Gaulak, Bhagirath, Sahti and Mahngi on the next day at about 5. 30 p. m. ( 4 ) INVESTIGATION was taken up. Necessary search and seizure were made. Inquest was made on the dead-body and it was sent for post-mortem examination. The injured were referred to the doctor for medical examination. According to the reports brought on record the injured were so many, namely, Ram Harakh, Ram Baran, Kanchan, Ram Dular, Nikhiddi, Mahant, Hari Nath Chamar, Sri Nath, Vishwa Nath, Sukhni and Budhni. The dates of their examination vary from 18th to 20/11/1972. ( 5 ) RAM Baran died subsequently and post-mortem examination on his dead-body was conducted at 8. 30 p. m. on 20-11-1972. There was a punctured wound on the right upper arm and one incised wound on the outer side of the back of the left leg. Death was due to shock and haemorrhage as a result of the injuries. There was a post-mortem examination on the dead-body of Kaurhia also and this was conducted at 11 a. m. on 20-11-1972. There was a punctured wound on the right upper arm and one incised wound on the outer side of the back of the left leg. Death was due to shock and haemorrhage as a result of the injuries. There was a post-mortem examination on the dead-body of Kaurhia also and this was conducted at 11 a. m. on 20-11-1972. It was the dead body of a woman aged about 35 years and the doctor found a traumatic swelling on the left temporal region, one incised wound on the palm, one penetrating wound on the buttocks below the iliac crest. Death was caused by shock and haemorrhage as a result of the injuries. ( 6 ) THE charge against the accused persons spoke of rioting while being members of an unlawful assembly with a common object of committing murder of Kaurhia, Ram Baran, Kanchan and Ram Harakh. There was a charge under Secs. 302/149 IPC for having committed the murder of Kaurhia and Ram Baran in prosecution of the above common object and a further charge under Secs. 307/149 IPC for murderous assault on Kanchan, Ram Harakh and Ram Dular with the aforesaid common object. There had been a further charge against Hari lal, Dangar and Basawan under Sec. 148 IPC for having been a member of the aforesaid unlawful assembly while armed with gandasa. All the accused persons had pleaded not guilty. ( 7 ) THE prosecution examined 17 witnesses, out of whom two were doctors, six were police personnel and five were the alleged eye-witnesses. We may take up the evidence of the doctors first. PW1, Dr. V. N. Rai, was posted in November, 1972, at the police hospital, Mirzapur, as the Medical Officer in-charge. On 18-11-1972 he had attended the District Hospital, Mirzapur, on emergency duty and he had examined the injuries of Ram Harakh, Ram Baran and Kanchan. He had also held post-mortem examination on 20-11-1972 on the dead-body of Ram Baran and on the same day another post-mortem examination was conducted by him on the dead-body of Kaurhia. The injuries of Ram Harakh were three in number - one traumatic swelling on the back of the left fore-arm, one incised wound on the inner part of right thigh and one lacerated wound deep on the back on the right side. The injuries of Ram Harakh were three in number - one traumatic swelling on the back of the left fore-arm, one incised wound on the inner part of right thigh and one lacerated wound deep on the back on the right side. There was a corresponding fracture under the traumatic swelling and this was grievous in nature caused by a blunt weapon. The other two injuries were simple. The second injury was caused by a sharp weapon while the third by a blunt weapon. Examination was conducted for Ram Harakh at 11 p. m. on 18-7-1972 and the injuries were fresh by then. The injuries of Ram Baran who died subsequently were two in number when he was first examined. One was a punctured wound on the outer side of the right upper arm. Margins were everted and well defined. At the time of examination bleeding was present. There was yet another incised wound on the outerside of back of the left leg. This too was bleeding and the margins were everted and well defined. Both the injuries were simple and were caused by sharp weapons and were fresh in nature when examination was done on 10. 30 p. m. on 18-11-1972. The post-mortem examination of Ram Baran was taken up at 3. 30 p. m. on 20-11-1972. The injuries found in the first examination were there in the post-mortem examination as well. Death was caused by shock and haemorrhage due to the injuries described above and the doctor had noted that the patient died on 19-11-1972 at 6 a. m. The injuries of Kanchan were examined at 10. 45 p. m. on 18-11-1972 and three of the injuries were lacerated wounds on the head, left ring finger and left little finger. There were two more lacerated wounds on the right hand and right forearm and two incised wounds on the inner side of the back of the left great toe and another on the inner side of the right foot. The post-mortem examination on the dead-body of Kaurhia was held on 20- 11-1972 at 11 a. m. The doctor found a traumatic swelling on the left temporal region, one incised wound on the outside of the left palm, one abrasion just above the pelvis on the left side and one penetrating wound, cavity deep, on the back of the left buttock below the iliac crest. For Kaurhia and Ram Baran the doctor opined that the injuries were sufficient to cause death and Kaurhia must have died immediately after receipt of the injuries. The only cross-examination that was made to this doctor related to an alternative cause for the injuries but the doctor opined that Ram Harakh could not have got the injuries due to fall. That there was a fracture was opined on clinical examination without any X-ray examination. The doctor admitted that for Kaurhia he did not indicate the nature of weapon used as he did not think it necessary. ( 8 ) THE other doctor examined in this case was Dr. Mahendra Kumar Singh, PW 14. He had been posted in the Primary Health Centre, Karchha, on 19-11-1972. On that day at about 11 a. m. he had examined Ram Dular on being brought by a constable from the concerned police station. There was a bruise in front of the left shoulder joint and he complained pain in chest. There was also pain and swelling at the right wrist joint. According to the opinion of the doctor the injuries might have been caused within 12 hours and were simple in nature caused by blunt substance and friction. Lathi could have been the weapon of offence according to the doctor. The doctor also examined Nikhiddi and found injuries on his person. Hari Nath, Vishwa Nath and Dangar were also examined and they too had injuries on their person. Sukhni, Dubraji and Budhni were also examined by him on being produced by police constables and he proved their injuries as well. ( 9 ) SO far the police witnesses are concerned, we may mention here that most of them were constables. PW 9, constable Ram Lakhan Lal was not examined in Court. His evidence was tendered through an affidavits. He spoke about carrying the bloodstained materials to Mirzapur malkhana and again from there to the chemical examiner. PW 10, constable Lallan Ram had also sworn his affidavit on a formal point. He had led the injured persons on 18-11-1972 to the hospital. For PW 11 again the evidence came through an affidavit. This constable, Ram Ji Singh, had spoken about informing the station officer about the registration of the case. ( 10 ) PW 13, constable Ali Haidar, however, is not a formal witness like the earlier three. He had led the injured persons on 18-11-1972 to the hospital. For PW 11 again the evidence came through an affidavit. This constable, Ram Ji Singh, had spoken about informing the station officer about the registration of the case. ( 10 ) PW 13, constable Ali Haidar, however, is not a formal witness like the earlier three. On 18-11-1972 he was at the concerned police station and, on the statement of Ram Dular made orally to him, he had written it down and on the basis of that report the FIR was drawn up. The station officer was not at the police station then. This witness drew report No. 21 in the roznamcha-am (general diary) and registered the case. He proved the FIR and the general diary. He also accompanied certain accused persons to the Court after their arrest and had taken certain seized articles to the malkhana. He admitted that there injuries on the persons of Nikhiddi, Mahant, Hari Nath, Vishwa Nath, Shiv Nath and Dangar when he had met them. He made an entry in the general diary about these injuries and injury reports were issued for their examination by the doctor. He also proved an FIR drawn up on the report of accused (now deceased) Dangar. ( 11 ) PW 15, constable Awadhesh Rai, was again a formal witness who led injured Kanchan and Ram Harakh to the Sadar Hospital. PW 16, constable Salik Ram, had sworn an affidavit to say on oath that he had carried the dead-body of Ram Baran for post-mortem examination and had identified the same before the doctor and brought back the report. ( 12 ) PW 17, Sri Dharam Nath Misra, was the Investigating Officer. He was station officer of Kachchawas police station at the relevant time. The FIR was drawn up in his absence and was taken to him by constable Ramji Singh to village Khera. On receipt of the FIR, he came back to the police station. The dead body of Smt. Kauria was there. He made the inquest on the dead body of Smt. Kauria and prepared an inquest report on the morning of 19-11-1972. The dead body was sent for post-mortem examination through constables. The necessary papers were also sent there. These papers were proved in Court. The dead body of Smt. Kauria was there. He made the inquest on the dead body of Smt. Kauria and prepared an inquest report on the morning of 19-11-1972. The dead body was sent for post-mortem examination through constables. The necessary papers were also sent there. These papers were proved in Court. He had summoned the complainant and witness Sant Lal and, thereafter, he went to the spot and prepared a sketch-map which was proved in Court. Blood-stained earth and plain earth were seized from near the spot. The papers in that respect were also proved. A search was conducted in the houses of certain accused-persons and recoveries were made of a ballam and lathies having blood-marks. Papers were prepared which were proved in Court. Accused Hari Nath, Vishwa Nath, Shiv Nath, Dangar, Nikhiddi and Mahant were arrested and their statements were recorded. They had injuries on their persons and as such they were forwarded for medical examination through constable Haridwar Singh. On 19-11-1999 itself witnesses Jamuna, Kalloo, Sahti, Bachchan and others were examined. On the next day, the Investigating Officer had received report on the post-mortem examination in respect of Kauria. On 21st November accused Basawan was examined. On 22nd he had received injury report of Ram Dular and got an information of death of Ram Baran in Mirzapur hospital and also received the post-mortem report in respect of Ram Baran. The Investigating Officer collected the blood-stained clothes on 11-1-1973 and a charge-sheet was submitted. He admitted in cross-examination that there were injuries on the persons of the accused. He was confronted with the statements of the witness under Section 161, Cr. P. C. Although the Sessions Judge recorded those statements, they will be relevant only for the purpose of contradiction, if any. He claimed to have visited the house of the accused persons but he could not say in which direction from the concerned field they lay but the houses were one or one and half furlong from the harvested field. The injury reports that had issued in favour of the accused persons for examination of their injuries were proved by this witness. He further admitted that in addition to accused persons, Mst. Sukhni, Dubrani, Budhni had also suffered injuries and they too were sent for medical examination. These ladies were, however, not examined by the Investigating Officer. The injury reports that had issued in favour of the accused persons for examination of their injuries were proved by this witness. He further admitted that in addition to accused persons, Mst. Sukhni, Dubrani, Budhni had also suffered injuries and they too were sent for medical examination. These ladies were, however, not examined by the Investigating Officer. ( 13 ) WE may now take up the statements of the witnesses to the occurrence. PW 2, Ram Dular, is the complainant who lodged the FIR. According to his statement, there was a land dispute between Basawan on one side and Ram Dular and Kanchan on the other. On the date of incident, he was in the village along with Kauria, Ram Baran and Ram Harakh. They heard the shouts of Kanchan, crying for help (mujhko bachao ). Ram Dular, Ram Baran and Ram Harakh as also Mst. Kauria ran to Kanchan. They had lathies with them, except Ram Baran who was bare handed. On reaching the spot, they found the accused Basawan with a gandasa. Nikhiddi, Hari Nath, Bishram, Viswa Nath, Shiv Nath and Mahendra had lathies while Dangar and Hari Lal had ballam with them. They had surrounded Kanchan and were assaulting him. They reached the spot and Kauria tried to save Kanchan, Basawan hit her with a gandasa while Hari Nath gave a lathi blow on her. Kauria fell down. Then, Hari Lal hurled a ballam on the buttock of Kauria. The accused also assaulted Ram Baran, Ram Harakh, Ram Dular and Kanchan. Ram Dular was assaulted by Mahendra and Nikhiddi with lathi. Ram Harakh was assaulted by Basawan while Ram Baran by Basawan and Dangar. Kanchan got a gandasa blow from Basawan while Nari Nath, Bishwarm and Vishwa Nath gave him lathi blows. By that time Jamuna, Bachchan, Kallu, Sahti and another Hari Nath reached the spot and they had seen the incident. In defence, the complainant and others also used their lathies. Kauria died at the spot. The deceased Kauria and injured Kanchan and Ram Dular were carried to the police station where a report was lodged and the injured were referred to the block hospital. He described the place of occurrence as the mutter field of Shiv Manveel Singh and the field of Nand Kishore and blood had fallen on the fields. The deceased Kauria and injured Kanchan and Ram Dular were carried to the police station where a report was lodged and the injured were referred to the block hospital. He described the place of occurrence as the mutter field of Shiv Manveel Singh and the field of Nand Kishore and blood had fallen on the fields. ( 14 ) HIS cross-examination indicates that on the date of occurrence none on behalf of the complainant had caused any damage to anyone of the accused persons. He admitted that the land dispute between Basawan and Kanchan related to three biswas of land and this was situated towards west of the house of Baswan. Bajra crops were standing on these three biswas of land. There was no other land in litigation between the parties. Land of Prabhu Narain was 50 steps north of these three biswas. The witnesses insisted that blood was found only in the land of Shiv Manveel Singh and Nand Kishore Lal. He denied that three biswas of land lay in between the land of Prabhu Dayal and Nand Kishore. He admitted that land of Nand Kishore, where blood was found, lay west to the house of Basawan. It was suggested to this witness that Basawan had kept the harvested bajra in his house and the complainant and others went to his house to take away this bajra forcibly and this led to assault and counter-assault (marpeet ). He, however, admitted that bajra crops were harvested from these three biswas only and from no other land. His further cross-examination indicates that three biswas of land belonged to Kauria and she had sold it away to Basawan and on the date of occurrence he and others had been engaged in harvesting bajra from this land. The witness admitted that Shiv Nath, Dangar, Nikhiddi, Mahant as well as Sukhni, Dubrani and Budhni had received injuries in this very marpeet. He could not say if Hari Nath suffered any injury but he admitted that he too had given lathi blows in self-defence. It was claimed by this witness that none on their side held gandasa or ballam. He did not, however, mark if Shiv Nath in the other side had any gandasa injury or if Dangar had also suffered an injury by a gandasa. It was claimed by this witness that none on their side held gandasa or ballam. He did not, however, mark if Shiv Nath in the other side had any gandasa injury or if Dangar had also suffered an injury by a gandasa. He explained further that when he had reached, Kanchan had already fallen down and when he got up he had no lathi with him, but he held a paina (goading stick) about one and half cubits in length. This witness had also a paina in his hand when he was driving the cattle in the purwal (a device to lift water from a well ). Ram Harakh had also a paina for goading the plough cattle. The witness accepted that both Ram Harakh and this witness had used their goading stick in self-defence. No such stick was, however, found at the spot. In further lines of his cross-examination he had admitted that on their side, this witness and Ram Harakh had been using their stick but the accused persons were using lathi, ballam and gandasa. Five persons suffered injuries on the side of the complainant and on the other side three persons suffered injuries. The marpeet went on for about 20 minutes. He himself was 8 to 10 steps away from Kanchan when he received first blow on his person. And only then he made a counter-attack. He suffered two injuries from blows given by Nikhiddi and Mahant. Before the police, however, he had not named Mahant as his assailant, rather he had named Hari Nath along with Nikhiddi as the persons who had assaulted him. Hari Lal was a man of different caste than the other accused persons. This Hari Lal had given only one blow to Kauria but no such claim was made at any earlier point of time, not even in the FIR. ( 15 ) THE next witness giving an eye-witness account was PW 3 Kanchan who had been an injured as well. He was returning after watching his fields and he reached near the field of Shiv Manveel, only then the accused persons were seen. He described the weapons carried by the accused persons. These persons attacked him and he raised a cry. Upon that cry Ram Baran, Ram Dular, Ram Harakh and Mst. Kauria came there. Kanchan had with him only a derh hathia (a stick measuring one and half cubits ). He described the weapons carried by the accused persons. These persons attacked him and he raised a cry. Upon that cry Ram Baran, Ram Dular, Ram Harakh and Mst. Kauria came there. Kanchan had with him only a derh hathia (a stick measuring one and half cubits ). Ram Baran had no weapon. Ram Dular had a danda while Ram Harakh again had no weapon with him. Immediately, he corrected himself to say that Ram Harakh held Mst. Kauria came there. Kanchan had with him only a derh hathia (a stick measuring one and half cubits ). Ram Baran had no weapon. Ram Dular had a danda while Ram Harakh again had no weapon with him. Immediately, he corrected himself to say that Ram Harakh held a danda. Accused persons started beating Kanchan, as also the persons who came on his cry. Kanchan was hit by Shiv, Nath, Hari Nath, Viswa Nath. Vikram and Basawan while Mst. Kauria was assaulted by Hari Nath, Baswan and Hari Lal and Ram Baran got his injuries from Dangar and Basawan. Ram Harakh from Basawan and Hari Nath. Kauria died at the spot. Jamuna, Sant Lal, Sahti etc. also reached the spot. The witness accepted that in self-defence he and others also used lathis. The cross-examination of the witness indicates that he did not remember if khaliyan of Basawan lay to the west of the place of marpeet or if bajra crops were stacked there. He was confronted with his statement before the police wherein he had made such a statement. He further admitted that to the south-west of the place of incident a land measuring three biswas was sold away by Ms. Basiya in favour of Basawan and a civil suit was pending concerning this sale deed. He further admitted that bajra crop from these three biswas was harvested. He, however, claimed that these crops were harvested by the complainant and his associates as the crops belonged to them and Basawan did not harvest it. Before the police, however, he stated that these crops were harvested by Basawan and others. He admitted again that when he and others were engaged in harvesting bajra crops, Basawan and others resisted it and although he was accompanied by others, Basawan alone was asking them not to harvest the bajra crops. Despite this, the complainant and others harvested the crops. He admitted again that when he and others were engaged in harvesting bajra crops, Basawan and others resisted it and although he was accompanied by others, Basawan alone was asking them not to harvest the bajra crops. Despite this, the complainant and others harvested the crops. He also admitted that persons on the side of Basawan had suffered injuries. According to this witness, Sukhni was the wife of Shiv Nath, Dubrani was wife of Sitai and Budhni was the wife of Basawan. These ladies did not reach the spot when the marpeet was going on but in a previous statement he had stated that Budhni had reached during the marpeet. He did not know if Shiv Nath had suffered any gandasa injuries. He admits to have used his stick only once. It was a thick one. It was not shown to police. He accepted that Nikhiddi was attacked by Ram Dular. In this previous statement, this witness had stated that it was Dangar who had assaulted but in Court he deviated from this stand. He also gave conflicting statement regarding use of ballam on him as he had once claimed that he had resisted the ballam blow by his stick and immediately thereafter added that he was never attempted to be assaulted by ballam. He had not disclosed before police the story of assault on Kauria, Ram Baran and Ram Harakh. In the concerned field where bajra was grown, "sanwan" was grown earlier and there was a dispute over harvest of that "sanwan". Despite resistance by the accused, complainant party had successfully harvested this Sanwan. It was suggested to him that Basawan and others had harvested the bajra and the complainant party had come to forcibly take away the harvested crop. ( 16 ) THE next witness in this category was PW 4, Ram Harakh. When he reached the spot along with others, the accused persons had been assaulting Kanchan. Kauria tried to save Kanchan and she too was assaulted and so were Ram Baran and Ram Harakh. This witness was assaulted by Viswa Nath by a lathi and by Hari Lal with a barchcha (spear), as also by Nikhiddi with a lathi. He also claimed that Sahti, Jamuna, Bachchan, Sant Lal and Hari Nath had come and seen the assault. He also accepted that in self-defence there was a counter action by them. This witness was assaulted by Viswa Nath by a lathi and by Hari Lal with a barchcha (spear), as also by Nikhiddi with a lathi. He also claimed that Sahti, Jamuna, Bachchan, Sant Lal and Hari Nath had come and seen the assault. He also accepted that in self-defence there was a counter action by them. When he had reached, Kanchan was already lying on the ground. He had a goading stick with him which had fallen down on lathi blow and was never picked up. In contradiction to the statements of the other witnesses, this witness insisted that although there was a marpeet none on the side of the accused persons suffered any injury. This witness was the last to be assaulted. Before the police he had made out a story that Basawan had hit him but in Court he deviated from that version. ( 17 ) THE next witness, who is also named in the FIR was PW 5, Sant Lal. He also supported the prosecution version in his examination-in-chief. So were PW 6 Sahti and PW 8 Jamuna. Looking to their cross-examination it is gathered that PW 5 had admitted a dispute over lands prior to the incident for which a pleader-commissioner had once gone to the spot. He was in his house and he heard the cries by Kanchan alone and not of Kauria. When he was half-way towards the spot he heard the cries of Kauria and Ram Charan. Ram Charan was calling others to come sharp as Kauria was being assaulted. He admitted that when he reached the spot, he saw Kanchan being assaulted but he could not say if Ram Charan who had already reached there had used his goading stick on any body. He could not say anybody on the side of Ram Dular had assaulted any other person on the opposite side but he remembered who on the side of Basawan had assaulted whom. This selective memory only suggests that this witness was trying to conceal the counter-assault made on the accused persons by the complainant and others. He flatly denied to have noticed any injury on any women barring Kauria. He had seen a broken piece of lathi on the spot but could not say if it was there from prior to the incident. He had gone to police station with Kanchan and others wherefrom he had gone to Mirzapur. He flatly denied to have noticed any injury on any women barring Kauria. He had seen a broken piece of lathi on the spot but could not say if it was there from prior to the incident. He had gone to police station with Kanchan and others wherefrom he had gone to Mirzapur. He claimed to have stated before the police as to which accused had used what weapon on Kauria but such separate description was not given in his statement under Section 161, Cr. P. C. he admitted that Basawan used to cultivate the land lying east of his house and to the north-east corner of this land lay the land of Nand Kishore. The cross-examination of Sahti shows that he himself did not hear any hue and cry. Ram Harakh had ran to the spot prior to his arrival and he had seen Ram Harakh defending himself with his paina but not hurling it on anybody. Kanchan had also a goading stick one and half cubit long with him. Ram Harakh and Ram Dular had sticks about 2 cubits in length but they also did not use their sticks against anybody. He did not see anybody using lathi or gandas against any persons in the group of Basawan. This statement will have to be seen along with the injuries on the side of Basawan and others. Although he did not note the injuries on the side of Basawan or the use of weapons against them, he claimed that he witnessed the assault on the side of Ram Dular. His evidence is also open to the same criticism that was made for PW 5. For PW 8, a perusal of the cross-examination indicates that there was a land dispute between Kanchan and others and Basawan and others and in that land bajra had been grown in the year of occurrence and the crops had been harvested six hours prior to the incident. He again proceeded to give the details of assault on the complainant party and this witness too suffered from convenient amnesia on the point of counter-assault which was practically an admitted fact from the statement of Ram Dular and others. He even denied that any person on the side of the accused had suffered any injury. He again proceeded to give the details of assault on the complainant party and this witness too suffered from convenient amnesia on the point of counter-assault which was practically an admitted fact from the statement of Ram Dular and others. He even denied that any person on the side of the accused had suffered any injury. He was confronted with his statement before police wherein he had admitted that complainant and others had also assaulted the accused persons and these accused persons had also suffered injuries. ( 18 ) IT was the contention of the learned counsel that it was out and out a case of exercise of right of private defence of property as Basawan had harvested the bajra crops which was sought to be removed by the complainant and others. The prosecution had not come up with any explanation for the injuries on the accused persons so far the FIR is concerned, bus in cross-examination the witness Ram Dular and others had admitted assault and injury on the accused persons. Learned counsel contended that the killing of Kauria could at best be described as individual act of the assailants and that too without having any intention to kill, and the case at the worst could come under Part II of Section 304, IPC. Learned counsel further pointed out that Hari Lal who allegedly gave a spear blow had been acquitted. ( 19 ) A perusal of the judgment indicates that the learned trial Court took pains to discusss the evidence and he was of the view that the bajra crops had been harvested by the accused party and there was no escape from the conclusion that it was the complainant-party which had gone there to remove the said crops and a right of private defence of property was available to the accused. However, he was again of the view that such right of private defence was not available against Kauria and the assault on her stood covered by Part I of Section 304, IPC and as the offence was committed in prosecution of the common object of more than 5 persons, each of them was liable under Sections 304/149. However, he was again of the view that such right of private defence was not available against Kauria and the assault on her stood covered by Part I of Section 304, IPC and as the offence was committed in prosecution of the common object of more than 5 persons, each of them was liable under Sections 304/149. ( 20 ) THE evidence has been discussed by us in minute details only to find force in and to agree with the findings of the Court below that it was really a case of right of private defence for Basawan and others. We are, thus, confronted with two questions, (1) whether the accused persons had exceeded the right of private defence and, if so, whether any common object or common intention could be attributed to each or if only actual assailants would be liable and (2) whether the offence would be individual or collective one under Section 304, Part I or Section 304, Part II, IPC. ( 21 ) THE trend of evidence indicates that it was the complainants party which had gone to take possession of the bajra crops harvested from the land by Basawan which he had purchased from Kauria. The presence of injuries on the side of the accused persons, together with the fact that these injuries had not been explained by the prosecution except through feeble admission of some witnesses, suggests that the complainant-party had also taken up arms to fulfil their act of removal of crops. It must, therefore, be held that the accused persons had acted in their right of private defence of property and person as both the crops and the persons were attacked. There is nothing, however, on record to suggest what Kauria had done. According to the evidence, it was Kanchan who had made a hue and cry and Kauria had been there. Others had also gone. Kauria was done to death and there is no suggestion that Kauria was armed or had used such arms against anybody or even she had tried to take away the harvested crops. The attack on Kauria, therefore, may not be covered by the theory of right of private defence. If Kauria was assaulted, it was only in the melee without any pre-meditation and without any concerned action. A common object to kill Kauria may again be not gathered from the above facts. The attack on Kauria, therefore, may not be covered by the theory of right of private defence. If Kauria was assaulted, it was only in the melee without any pre-meditation and without any concerned action. A common object to kill Kauria may again be not gathered from the above facts. Thus, for the assault on Kauria, only the persons who assaulted her would be liable and not the others and neither Section 34 nor Section 149, IPC would be applicable to rope in the other persons. ( 22 ) AS regards assault on Kauria, we may look to the injuries again. There was a traumatic swelling on the left temporal region, one incised wound on the palm and one punctured wound at the buttocks below the iliac crest. The evidence shows that Basawan had hit her with a gandasa, Hari Nath gave a lathi blow and Hari Lal hurled a ballam on her buttocks. There was one incised wound which was only on the palm and the injury on the buttocks appears to have been caused by a ballam. Hari Lal and Basawan had, however, been acquitted by the trial Court on the ground that the evidence did not disclose their presence. The post-mortem report of Kauria indicates that there was the trial Court on the ground that the evidence did not disclose their presence. The post-mortem report of Kauria indicates that there was no internal injury on the head. Thus, the lathi blow could not have caused the death of Kauria. The incised wound on the palm was muscle-deep and might have been received in a bid to ward off a blow. The punctured wound which was on the left buttock had gone up to the abdominal wall and appears to be the most serious injury which resulted in the death of Kauria, We shall, therefore, be confined to see if acquittal of Basawan and Hari Lal was proper. ( 23 ) SO far other charges other than causing death of Kauria are concerned, the Court had recorded an acquittal order. ( 23 ) SO far other charges other than causing death of Kauria are concerned, the Court had recorded an acquittal order. When the story of right of private defence was accepted and involvement of Kanchan and Ram Baran as aggressors has also been prima facie suggested and it has been held that the accused persons acted in exercise of their right of private defence of property and persons, the acquittal of the accused persons for the other charges may not be interfered with. However, for the assault on Kauria, only five persons have been convicted under Sections 304/149, IPC and two real assailants of Kauria, namely, Hari Lal and Baswan, have been acquitted and this acquittal has also challenged in the connected appeal, we must look to the validity of the reasons of the acquittal. The learned trial Judge had observed in the penultimate page of its judgment that no injury was caused to Hari Lal, Basawan and Vishwa Nath and Hari Lal did not belong to the community of the accused and had no reason to participate in the quarrel. Vishwa Nath too did not belong to the family of the accused persons. Accordingly, he disbelieved their presence although he was aware that evidence was there against them of using their weapons and causing injuries to different persons including Kauria. This reason does not appeal to us. Motive certainly has a role to play in a criminal case but when convincing evidence had come relating to participation of particular persons, the mere absence of motive may not be a ground to doubt their presence when there is no other ground to disbelieve the prosecution story. Moreover, the mere absence of injury on Basawan and Hari Lal may not take them out of the scene of the occurrence. In our view, the evidence clearly fixes the responsibility of assault on Kauria by Basawan, Hari Lal and Hari Nath. As already held, these persons had no right of private defence against Kauria and she was assaulted in the process of assault and counter-assault between the parties without any pre-meditation. These three persons, therefore, would be liable for the individual assault they had made on Kauria and on the nature and gravity of the injury which had been caused. The lathi blow was given on Kauria by Hari Nath. These three persons, therefore, would be liable for the individual assault they had made on Kauria and on the nature and gravity of the injury which had been caused. The lathi blow was given on Kauria by Hari Nath. It was on the head and there was a traumatic swelling without any corresponding internal injury. Hari Nath could, therefore, be liable for an offence under Section 323, IPC only. For Basawan, he gave a sharp cut on the palm of Kauria and according to the doctor death was caused due to shock and haemorrhage. We have already held that the punctured injury on the buttocks which had gone up to abdominal wall was the most serious one and, thus, we find Basawan guilty for an offence under Section 324, IPC only. For Hari Lal, it is found that he gave the ballam blow to Kauria without intention to kill but knowing that the blow might cause her death, and this was the most serious injury which resulted in her death. He would, therefore, be liable for an offence under Section 304, Part II, IPC. ( 24 ) HARI Nath had already been sentenced and the only direction that is required to be made is to modify the conviction from one under Sections 304/149 IPC to 304, Part II, IPC substantively as also the sentence to R. I. for 5 years. The Cri. Appeal No. 1246 of 1978 so far Hari Nath is concerned, is thus dismissed with the above modification. As there was no injury caused to Kauria by Vishwa Nath, Mahant and Shiv Nath, this appeal stands allowed so far these three persons are concerned. They are on bail. They need not surrender to their ball bonds. So far Govt. Appeal No. 2108 of 1978 is concerned, the State could successfully bring home the charge against Basawan and Hari Lal and, as already held, Basawan is convicted under Section 323, IPC and Hari Lal under Section 324, IPC. The appeal is 21 years old and these two persons must have stayed behind the bars for some period at the investigation stage, during trial stage or after their conviction before their release on bail. It is not, therefore, just to ask them to go back to custody again. They are sentenced to the periods already undergone by them. The appeal is 21 years old and these two persons must have stayed behind the bars for some period at the investigation stage, during trial stage or after their conviction before their release on bail. It is not, therefore, just to ask them to go back to custody again. They are sentenced to the periods already undergone by them. Hari Nath, however, is to surrender before the Court below to undergo the term of imprisonment. Both the appeals are thus partly allowed as above. Order accordingly. .