JUDGMENT S.P. Shrivastava and R.B. Dixit, JJ. 1. THE STATE aggrieved by judgment and order of acquittal dated 29.6.87 of First Additional Judge to Sessions Judge, Morena, passed in S.T. No. 62/85 thereby acquitting respondent accused persons in a triple murder case under Sections 147,302/149 and for causing injuries to three others under Sections 325 and 324 read with Section 149 IPC and also further acquitting respondents accused Ramesh, Indra Lal alias Indra (now deceased) and Nanak Ram of offence under Section 25 and 27 of the Arms Act has come up in this appeal before this Court. 2. A prayar has been made on behalf of State for setting aside the order of acquittal and seeking the conviction of the aforesaid respondents-accused persons Ramesh, Indra Lal alias Indra and Nanak Ram, and others. 3. The prosecution case before the trial Court in brief as emerged from the evidence and materials brought on record may be summarised as follows : On 2.8.1984 at about 11.00 a.m. respondents accused Ramesh Tyagi brought a trolley with tractor containing Sarson Budi (mustard straw). When accused Ramesh along with other accused persons Teeka Ram, Nanak Ram, Prabhu, Suresh and Ratna alias Ratan Lal started spreading the mustard straw on the common way, complainant Sundra's nephew deceased Brandawan protested on the ground that this will cause the way filthy, thereupon accused-respondent Ramesh shouted to his boys for bringing lathi, farsa and gun. Thereupon, Ramesh armed himself with 12 bore gun, Indra Lal and Nanak Ram with rifles, Kashi Ram, Prabhu and Teeka Ram with farsa while Suresh and Ratna came armed with lathi. Suresh and Ratna assaulted Brindawan with lathi. When Sundra and his brother Siya Ram came for the rescue of Brindawan and Mahendra also joined them, Kashi Ram assaulted a farsa blow on the head of Sundra. Suresh and Ratna assulted him with lathi. Siya Ram was assaulted on his head with farsa by Teeka Ram, Prabhu inflicted a farsa injury on the head of Mahendra. 4. Sundra, Siya Ram, Mahendra, Brindawan and Lakhan ran towards their houses, while they were running, Indra Lal fired the bullet of his rifle towards Lakhan, which pierced his thigh and he fell dead. At the same time, Ramesh also fired on Brindawan with his 12 bore gun, who also received injury in his leg. 4. Sundra, Siya Ram, Mahendra, Brindawan and Lakhan ran towards their houses, while they were running, Indra Lal fired the bullet of his rifle towards Lakhan, which pierced his thigh and he fell dead. At the same time, Ramesh also fired on Brindawan with his 12 bore gun, who also received injury in his leg. Deceased Jumuni Dhobin of village Bhatiyara had come for washing clothes and she was also hit a gun shot injury fired by respondent accused Ramesh when she was trying to save Sundra. Ramesh also fired a gun shot aiming at Sundra, but he had a narrow escape. 5. Sundra saved himself entering into his house immediately but meanwhile Nanak Ram aimed his gun and fired towards Mahendra. However, Mahendra had a narrow escape, but this time, Brindawan was hit by this gun shot injury. He succumbed to injuries while he was laid on a bullock cart. When the incident attracted some of the neighbours, the accused persons ran away from the spot, 6. The police Baagchini received a wereless massage (Ex. P/1) that some murder had taken place due to fight between the parties. A.S.I. Shriniwas Sharma (PW13) reached on the spot and recorded dehati nalish (Ex.P/20) at 6.00 P.M. on the same day. He also seized (Ex. P/36) empty cartridges and fired bullets from the spot. Injured Sundra, Mahendra and Siya Ram were sent for medical examination vide requisitions (Ex. P/7, 9 & 13). He had also recorded statements of respondent-accused Prabhu who was admitted in the hospital on account of injuries received by him. 7. Station House Officer, D.D. Sharma (PW12) prepared panchnama of dead bodies of Jamuni (Ex. P/37), Brindawan (Ex. P/39) and Lakhan (Ex. P/38) and the dead bodies were sent for post mortem vide requisitions (Ex. P/1,3 & 5 respectively). The spot map (Ex. P/23) was prepared and blood statined soil was collected (Ex. P/40,41 & 42) from the place where the dead bodies were lying. 8. After apprehending the accused-respondents, they were interrogated in respect of recovery of arms. On the information (Ex. P/48) given by accused Ramesh, a 12 bore gun (Ex. P/66) and a blood stained Baniyan was also seized (Ex. P/55) from him. The gun seized from Ramesh was a licenced gun of Prabhu. On the information of accused Indra (Ex. P/45), a lecensed rifle of Kashi Ram was seized (Ex. On the information (Ex. P/48) given by accused Ramesh, a 12 bore gun (Ex. P/66) and a blood stained Baniyan was also seized (Ex. P/55) from him. The gun seized from Ramesh was a licenced gun of Prabhu. On the information of accused Indra (Ex. P/45), a lecensed rifle of Kashi Ram was seized (Ex. P/67) along with blood stained safi (Ex. P/56) from him. Nanak Ram also informed (Ex. P/50) about a licensed gun of Bhabuti Singh, which was seized (Ex. P/68) along with a blood stained Baniyan (Ex. P/57) from him. Kashi Ram gave information (Ex. P/51) about a farsa, which was seized (Ex. P/67) along with blood stained Baniyan (Ex. P/56) at his instance. Tika Ram informed (Ex. P/53) about a farsa, which was seized (Ex. P/65) along with a blood stained towel (Ex. P/59) from him. Ratna gave information (Ex. P/54) about the lathi, which was seized (Ex. P/64) along with a blood stained safi (Ex. P/60) from him. The lathi (Ex. P/63) along with a Baniyan (Ex. P/69) was seized from Suresh and a farsa (Ex. P/70) was seized at the instance (Ex. P/69) of accused Prabhu. 9. All the seized articles were sent for chemical analysis. The Analyst's report is Ex. P/73 and the seized fire arm weapons were also examined by the Ballistic Expert, whose report is Ex. P/73. The Ballistic Expert after examining the empty cartridges and firearms seized, opined that the alleged cartridges were fired from the seized fire arm weapons. 10. Dr. R. S. Sikarwar (PW1) conducted post mortem (Ex. P/2) of the dead body of Jamuni Bai on 3.10.84 at about 5. 30 p.m. The injuries found on the person of Jamuni Bai were as follows : A punctured wound with interted margin, circular in shape, size 4 cm x 4.5 cm situated on left side of abdomen 20 cm below the left nipple, 9 cm left to the umbilicus at the same level, 85 cm above the left to right obliquely. After rupturing the skin, fascia, muscles, peritoneum and the loops of intestine. The foreign body is found embedded in the loops of small intestine and four pellets found at the ant. surface of body of L1 & L2 vertebra. Injury no. 1 is caused by firearm and is fatal in nature. 11. The post-mortem (Ex. P/4) examination of the dead body of Lakhan was done by Dr. The foreign body is found embedded in the loops of small intestine and four pellets found at the ant. surface of body of L1 & L2 vertebra. Injury no. 1 is caused by firearm and is fatal in nature. 11. The post-mortem (Ex. P/4) examination of the dead body of Lakhan was done by Dr. R. S. Sikarwar next day at about 9. 45 a.m. and found the following injuries: (i) A lacerated (wound of entry) wound size 1 cm x 1 cm present on the posterior aspect of right thigh 30 cm above the midline of right popliteal fossa 66 cm above the right heel and 25 cm below and lateral to the posterior superior iliac spine. The track passing through the injuring to the, skins, muscles, nerves, fascia and passing from postero medial aspect of shaft of right femur. The direction of the track is from right to leftobliquely upwards. The wound's margins are circular in shape. (ii) A lacerated wound (wound of exit) inverted present on medial aspect of right thigh size 20 cm x 10 cm in the middle of thigh 13.5 cm superior to the medial border of middle of right knee joint, 9 cm below and medial to the anterior superior iliacspine. The margins of wound are inverted. There was injury to the skin, muscles, nerves fascia of the medial aspect of right thigh. Injuries nos. 1 & II are caused by fire arm and fatal to life in normal course. 12. On the same day Dr. R. S. Sikarwar conducted autopsy of the dead body of deceased Brindawan and found following injuries in his report (Ex. P/6). Multiple lacerated wonds (wound of entry) 37 in number of varying size from 0.5. cm x 0.5 cm to 0.75 x 0. 75 cm in size present on the antro medial aspect of right thigh, dispersion vertically is 15 cm and 18 cm transversally. The area of lacerated wound is situated 18 cm superior to the middle and medial aspect of right knee joint, 12 cm below and right to the inf. border of pubic symphysis and 20 cm below and medial to the right posterior superior iliac spine margins are inverted, shape of wonds is circular. Some of the wounds are superficial while others are passing through the soft tissue and found in the muscles. border of pubic symphysis and 20 cm below and medial to the right posterior superior iliac spine margins are inverted, shape of wonds is circular. Some of the wounds are superficial while others are passing through the soft tissue and found in the muscles. A lacerated wound (wound of entry) is also present in above mentioned area of size 4 cm x 3.5 cm x 12.5 cm. The margins are inverted, on foreign body and 28 pellets found in the posterior portions muscle of thigh. Muscles, Muscles soft tissues, nerves of vessels injured, situation obliquely, upwards from Lt to Rt. An abrasion size 3 cm x 1 cm present on antro medial aspect of Rt. knee. An abrasion size 2 cm x 1 cm present on anterior aspect of pattilla. An abrasion size 5 cm x 2.5 cm present below the pattilla bone of left knee. In the opinion of the doctor, injuries were caused by gun shot. 13. Complainant Sundra was examined (Ex. P/8) by Dr. Sikarwar on 3.10.84 in pursuasion to the requisition (Ex. P/7) sent by the Station House officer and was found to have the following injuries on his body. (i) incised wound size 2" x 1/2" x 1/2" present at occipital parietal junction of head caused by sharp cutting object. (ii) A contusion size 2" x 1" present on medial aspect of right arm. (iii) A contusion size 2" x 1" present on left arm at lateral aspect. (iv) An abrasion size 1/4" x 1/4" x 1/4" present on superior aspect of left shoulder Jt. (v) A swelling size 1" x 1/2" present on left thumb. (vi) A contusion size 3" x 1" present on left gluteal region. Injuries nos. (ii) to (vi) caused by hard and blunt object. Duration between 12 to 16 hrs. simple injury. 14. Mahendra was also examined (Ex. P/10) by Dr. R.S. Sikarwar on 3.10.84 and following injuries were found on his body : (i) An incised wound size 4" x 1/2" x 1/2" present transversally on the superior aspect of middle of scalp caused by sharp cutting object. (ii) A swelling size 1/2" x 1/2" present on dorsal aspect of Rt. thumb. (iii) A swelling size 2" x 2" present on dorsal surface and ulna border of left wrist. Injuries nos. (ii) & (iii) caused by hard and blunt object. (ii) A swelling size 1/2" x 1/2" present on dorsal aspect of Rt. thumb. (iii) A swelling size 2" x 2" present on dorsal surface and ulna border of left wrist. Injuries nos. (ii) & (iii) caused by hard and blunt object. X. ray examination of injuries (i) and (ii) was advised. X-ray plate (Ex. P/12) showed that there was a fracture of left ulna. 15. Siya Ram was examined (Ex. P/14) by the same doctor, who found following injuries on his person : (i) An incised wound size 1" x 1/2" x 1/2" present in the occipital region scalp caused by sharp cutting object. (ii) An abrasion size 1" x 1/2" x 1/2" present on anterior surface of leg. (iii) An abrasion size 11/2" x 1/2" x 1/4" present on anterior surface of leg with swelling. X-ray was advised for skull Lat. wound. 16. Head Constable Lokendra Singh (PW5) registered F.I.R. (Ex. P/21) on the basis of the Dehati Nalishi (Ex. P/20). It is brought out on record that the same Head Constable on 2.10.84 at about 4. 30 p.m. also recorded a Rojnamcha report (Ex. D/3) of Ramgopal (DW1) accompanied by accused-respondent Prabhu. Since Prabhu was not in a position to speak, there is no information in this report as to how he received his injuries on the head and back. However, Ramgopal in his statement has deposed that Prabhu is brother of Tika Ram, who is his brother-in-law. When he heard about the incident, he reached at about 2. 00 p.m. and found Prabhu in unconscious state. He did not find any other accused respondents on the spot. Prabhu was brought on a tractor at P.S. Baagchini and the report was lodged by Prabhu himself because at that time, he regained his consciousness. it is difficult to presume that Prabhu was in a position to speak otherwise he would have given some details in rojnamcha report referred hereinbefore. 17. On 2.10.84 at about 7. 30 p.m. accused Prabhu was examined (Ex. D/5) by Dr. it is difficult to presume that Prabhu was in a position to speak otherwise he would have given some details in rojnamcha report referred hereinbefore. 17. On 2.10.84 at about 7. 30 p.m. accused Prabhu was examined (Ex. D/5) by Dr. N.K. Bhardwaj (PW2), who found following injuries on his person : (i) An incised wound on left fore head 3" x 1" x 1/2" (ii) A contusion on left forearm 3" x 31/2" (iii) A contusion on left side of chest (iv) A contusion on right chest scapula region 2" x 1" (v) A contusion on right face near medible of 1/2" x 1/4" x 1/4" size. Injuries 2 to 5 were caused by hard and blunt object. X-ray of injuries (i) & (ii) advised. 18. Dr. Yogendra Singh (PW3) took X-ray of head and left forearm of accused Prabhu as referred by Dr. Bhardwaj. In X-ray examination (Ex. P/7), fracture of frontal bone with radio opaqueshadow of mandible and radius stylite process were detected. The doctor has admitted that radio opaque shadow is possible if a foreign body inserted below the X-rayed injuries of the patient. 19. After due investigation, the respondents accused persons were charged for having committed the offences indicated hereinabove. The prosecution in support of its case examined complainant-injured Sundra (PW1), Mahendra Singh (PW8), Siya Ram (PW9) and witness Tika Ram (PW10) besides other formal witnesses of seizure and medical examination. The defence of the accused persons is of complete denial and false implication. 20. The learned trial Judge did not accept the sequence of events as narrated by the eye-witnesses and held that in fact the incident took place in front of the house of accused-respondent Ramesh where the complainant and his family members inflicted injuries to accused-respondent Prabhu, brother of Ramesh. In the circumstances, Ramesh was left with no alternative but to fire in his self-defence and in the defence of his brother which caused the death of three persons and injuries to other three persons referred to hereinbefore. 21. The learned Panel Lawyer appearing for appellant-State has strenuously argued that except some suggestions of defence in cross-examination to the prosecution witnesses, the respondents-accused persons had not specifically raised any plea of self-defence nor examined any witness in defence or on the point of self-defence as suggested to the prosecution witnesses. 22. 21. The learned Panel Lawyer appearing for appellant-State has strenuously argued that except some suggestions of defence in cross-examination to the prosecution witnesses, the respondents-accused persons had not specifically raised any plea of self-defence nor examined any witness in defence or on the point of self-defence as suggested to the prosecution witnesses. 22. The learned trial Court has only based its finding from some of the admissions made in cross-examination of the prosecution witnesses. The conduct of the respondents-accused persons indicates that they did not care to lodge any report with the police and the injured accused Prabhu was left alone, who was lifted to the hospital by his relative witness Ramgopal in an unconscious state via police station without disclosing anything about the incident in the rojnamcha a report as lodged at the police station. 23. The learned counsel for the respondents on the other hand urged that prosecution has nowhere tried to explain the injuries of respondent-accused Prabhu as his injuries were proved to be serious in nature. It indicates that the incident did not happen in the manner and under the circumstances as narrated by the prosecution witnesses. 24. It is further contended for appellant-State that the learned trial Judge has recorded the findings of self-defence on mere conjecture and surmises because there is nothing in prosecution evidence to suggest that complainant was the first aggressor, while it is well proved from the evidence of injured eye witnesses that the accused respondents were first agressors it is not incumbent upon the prosecution to explain the injuries received by only accused Prabhu. 25. In our opinion before examining the rival contentions advance by the learned counsel of the parties in respect of the so-called unexplained injuries of respondent-accused Prabhu, it is necessary to state the law on this point. The Apex Court in the case of Muthu Nalcker V. State of Tamil Nadu reported in AIR 1978 SC 1647 sounded a warning in respect of un-lawsul assembly of an occurrence in a village involving rival factions and expressed as under - Where there is a melee and a large number of assailants and number of witnesses claim to have witnessed the occurrence from different places and at different stages of the occurrence and where the evidence is undoubtedly partisan evidence, the distinct possibility of innocent being falsely included with guilty cannot be easily ruled out. In a faction ridden society where an occurrence takes place in a village involving rival factions it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan is to shut one's eyes to the realities of the rural life in our country. Large number of accused would go unpunished if such an easy course is charted. Simultaneously, it is to be borne in mind that in such a situation the easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and is to be eschewed and, therefore, the evidence has to be examined with utmost care and caution. 26. In some of the earlier decisions including the decision in Mohan Rao Vs. State of Bihar (AIR 19 SC 1281), the view expressed by the Hon'ble Supreme Court was that the failure of the prosecution to offer any explanation regarding the injuries of the accused shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate holy true. However in a later decision, the Apex Court veered the view and held that there is no hard and fast rule in respect of affording an explanation about injuries of the accused persons. See Bhagwan Tana Patil Vs. State of Maharashtra ( AIR 1974 SC 21 ). The Apex Court further pointed out by its decision in the case of Laxmi Singh and others Vs. State of Bihar reported in AIR 1976 SC 2263 that in a murder case the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance where it can be presumed that either the prosecution has suppressed the genesis and the origin of the occurrence or in case there is a defence version which explains the injuries of the accused, it may be rendered probable so as to throw out the prosecution story. In such circumstances, therefore, it becomes the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused at about time of occurrence or in the course of altercation. In such circumstances, therefore, it becomes the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused at about time of occurrence or in the course of altercation. On account of explanation, the injuries on the part of the prosecution may assume greater importance whether the evidence consists of interested or inimical witnesses or where the defence gives a version which competes improbability with that of the prosecution case. 27. However, it should not be lost sight of that the Hon'ble Supreme Court in the case of State of Gujarat Vs. Bai Hatlma reported in AIR 1975 SC 1478 had amply clarified that there may be cases, where the non-explanation of the injuries by the prosecution may not effect the prosecution case. However, the principle indicated above would obviously not apply to cases where the injury sustained by the accused are minor and superficial or where the evidence is so dear and independent, so independent and disinterested, so probable, consistent and credit worthy that offer different weigh and effect of the omission on the part of the prosecution to explain the injuries. 28. In another case relevant to the principle under discussion in Onkar Nath Singh Vs. State of U.P. ( AIR 1974 SC 1550 ), it has been held that the entire prosecution case cannot be thrown over board simply becuase the prosecution witnesses do not explain the injuries on the person of the accused. The question as to what is the effect of the non-explanation is a question of fact and not of law. Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses and the Court will scrutinise their evidence with care. Each case presents its own features. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. 29. On the same principle, it was held in the case of Sone Lal and others Vs. 29. On the same principle, it was held in the case of Sone Lal and others Vs. State of U.P. ( AIR 1981 SC 1379 ) that where the accused persons were agressors and armed with various weapons, while victims were unarmed and the incident taking place on the land belonging to victims it was not accused persons who are entitled to right of private defence, but such a defence is available to complainant side. 30. In the case of Ram Sunder Vs. State of Bihar (1998) 7 SCC 365 the matter was referred for consideration by a large Bench, but it was found that the question has already been answered by the two decisions of three Judges Bench in earlier case of Bhaba Nanda Vs. State of Assam ( AIR 1997 SC 2252 ). The other case is of Vijay Singh Vs. State of U.P. ( AIR 1990 SC 1459 ). 31. The principle governing the non-explanation of injuries as reported in case of Bhaba Nanda (supra) was laid down as under - Before an adverse inference Is drawn against the prosecution for its alleged suppression or failure to explain the injuries on the person of an accused it must be reasonably shown that, in all probability, the injuries were caused to him in the same occurrence or as a part of the same transaction in which the victims on the side of the prosecution were injured. The prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances. This is not the law. It all depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused. 32. In Vijay Singh's case (supra) also wherein the question was posed as to whether the prosecution has explained the injuries of the accused and if there is no such explanation what would be its effect. It was held that such a non-explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. It was held that such a non-explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution can not by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case. The Hon'ble Supreme Court went on to observe - No doubt they have not explained the injuries found on accused nos. 13 and 14. From this alone it cannot be said that the prosecution has suppressed the genesis and the origin of the occurrence and has not presented a true version. Though they are interested, we find that their evidence is clear, cogent and convincing. The only reasonable inference that can be drawn is that the two accused persons received the injuries during the course of the occurrence which were inflicted on them by some members of the prosecution party. 33. Now coming to the actual incident, the complainant Sundra (PW7) has deposed that the accused-respondent Ramesh, Inder Lal and Kashi Ram reside in his neighbourhood. On 2.10.1984 at about 11 a.m. Ramesh brought atractor attached with trolly full of mustard straw and started unloading it on the road adjoining to his house. Deceased Brindawan tried to stop him, thereupon Ramesh shouted to his boys to bring lathi, farsa and gun etc. Soon, he found Ramesh armed with 12 bore-gun, Indra Lal and Nanak Ram with rifle, Kashiram, Tikaram and Prabhu with farsa, Ratan and Suresh with lathi. Suresh and Ratna assaulted the deceased Brindavan. When he and his. brother Siyaram tried to save him, Kashiram inflicted a farsa injury on his head and Suresh and Ratna inflicted lathi blow on his hand and back. Tikaram assaulted with farsa on the head of Siyaram and Prabhu inflicted a farsa injury on the head of Mahendra. 34. When Sundra, Siyaram, Mahendra, Brindawan and Lakhan were running for a shelter Indralal inflicted a gun shot injury to Lakhan on his thigh. Ramesh at the same time fired a gun shot injury to deceased Brindawan which pierced his thigh and Brindawan fell on the ground. 34. When Sundra, Siyaram, Mahendra, Brindawan and Lakhan were running for a shelter Indralal inflicted a gun shot injury to Lakhan on his thigh. Ramesh at the same time fired a gun shot injury to deceased Brindawan which pierced his thigh and Brindawan fell on the ground. Ramesh inflicted second gun shot injury aiming towards Sundra, however, in between came deceased Jamuni who received gun shot injury of Ramesh on her stomach. Nanakram also fired aiming towards Mahendra but Mahendra had a narrow escape and the fired bullet fell on the mustard straw. 35. Hearing gun shots, witness Patiram and Tika Ram Tyagi reached on the spot and seeing approached them accused respondents disappeared. Sundra has further stated that on the same day, outsiders had assembled to attend 13th day ceremony of Ramcharan Lal Mishra. He sent oral message to police through some of the people who had come from Jaura and when Police arrived, he lodged first information report (Ex.P/20) which was recorded as Dehati Nalisi. Police had collected empty cartridges of 12 bore gun. Apart from the immediate cause of unloading mustard straw Sundra suspected the cause of incident as previous enmity of Panchayat elections in which Bhabuti, father of accused Ratna, had contested elections against him. This witness has further described the distance between deceased Brindawan and the place from where the bullet was fired by accused Ramesh as 12' to 14' feet. Deceased Brindavan at that time was between houses of Nadaria and Malkhan. Lakhan was about 16 feet away when accused Indralal targeted him by his rifle. Both Lakhan and Brindawan received gun shots injuries on their right thigh. He has admitted that the dead body of Lakhan was kept at a distance of about 20 feet from the place where he was hit by the gun shot. Brindawan was alive when witness Tikaram and Patiram reached on the spot and before he could fall, he was helped by these two witnesses to walk for 20 to 22 yards. Total six bullets were fired in this incident. 36. Mahendra Singh (PW8) had also witnessed the entire incident and further added that he was assaulted by Prabhu with farsa. Brindawan was alive when witness Tikaram and Patiram reached on the spot and before he could fall, he was helped by these two witnesses to walk for 20 to 22 yards. Total six bullets were fired in this incident. 36. Mahendra Singh (PW8) had also witnessed the entire incident and further added that he was assaulted by Prabhu with farsa. There is no difference between the statements of Sundra and of this witness in so far as the question of causing injuries to the deceased persons and injuries to other injured persons i.e. Sundra, Siyaram and Tikaram are concerned. He has further admitted that there is a well at Tiraha near his house. However, he has denied that the way near this well has turned muddy due to continuous overflowing of water on the spot. The house of Ramesh is about 45 feet away from the place where the mustard straw was being unloaded. Adjoining to his house is the house of Chhinga then gauda of Sundra and house of Malkhan are situated. Adjoining to the house of Malkhan, house of Nadaria is situated. The house of Keshav is just adjoining to the house of Nadaria but no person of these adjoining houses were present on the spot. When Ramesh was obstructed by the deceased Brindavan, accused Ramesh reversed his tractor and kept it at his Baithak. Police arrived on the spot at about 7 p.m. Lakhan fell dead adjoining to the house of accused Indra Lal. The house of Ramesh is situated adjoining to the house of Indra Lal. Naura of Kashiram is situated adjoining to the house of Malkhan and house of Siyaram is adjoining to the Naura of Kashiram. 37. Siyaram (PW9) was feeding his cattle when he heard approaching tractor of accused Ramesh. When all the accused persons started unloading mustard straw, he came out and noticed that the deceased Brindawan was requesting accused persons not to unload the straw infront of their houses and thereupon all the accused persons came armed with lathi, farsa and gun and started assaulting deceased and Sundra. Kashiram assaulted Sundra with farsa and Suresh and Ratna also assaulted Sundra with lathi. When he tried to save Sundra, Tikaram assaulted him with farsa. On being intervened by Mahendra, Prabhu assaulted him with farsa. Suresh and Ratna assaulted him with lathi. Kashiram assaulted Sundra with farsa and Suresh and Ratna also assaulted Sundra with lathi. When he tried to save Sundra, Tikaram assaulted him with farsa. On being intervened by Mahendra, Prabhu assaulted him with farsa. Suresh and Ratna assaulted him with lathi. Meanwhile, accused Ramesh shouted and accused Indralal inflicted a gun shot injury to the deceased Lakhan. Ramesh inflicted gun shot injury to deceased Brindawan. Another bullet from 12 bore gun of accused Ramesh struck on the stomach of Jamuni. According to this witness, Ramesh also fired third shot and Nanakram fired a short towards Mahendra but none was injured. 38. Witness Siya Ram has also admitted some enmity on account of election of Bhabuti as Sarpanch of Panchayat but in his opposition was Ramjidas and not Sundra. In these circumstances, there was no direct enmity between the parties on the question of election of Bhabuti. He has denied that Ramesh had taken back his tractor from the spot because tractor was found parked on the spot when the police arrived in the village. Ramesh shouted to go from the spot only when Sundra. Brindawan and Mehendra were already assaulted. The command from Ramesh to his own boys was for moving away from the spot. 39. Tikaram (PW10) is the only witness of the incident, apart from the injured persons. He was attracted to the spot by the sound of gun fire. He found Indra Lal and Nanakram armed with mouser and Ramesh with 12 bore gun and running from the spot along with other co-accused/respondents. On advancing further, he found Jamuni dead on the door of Bhagwan Lal and some 8 to 10 feet away was lying Brindavan nearly breathing his last and Lakhan was already dead. The injured Siyaram and Sundra were weeping in wounded position. He also found Prabhu lying at the door of accused Ramesh but he could not notice injury on the person of Prabhu. 40. The learned counsel for the respondents/accused persons has pointed out discrepancies between the statements of above witnesses in so far as the number of accused persons assembled at the time of unloading of mustard straw. According to Sundra, Ramesh alone was unloading while other injured Mahendra Singh and Siyaram found all the accused persons unloading the straw. However, these witnesses were not cross-examined on the point whether all or one of the accused were unloading the straw. According to Sundra, Ramesh alone was unloading while other injured Mahendra Singh and Siyaram found all the accused persons unloading the straw. However, these witnesses were not cross-examined on the point whether all or one of the accused were unloading the straw. The statements of all the witnesses are consistent on the point that accused Ramesh was first who brought mustard straw on the spot and it is on his shouting that the rest of the accused respondents joined him duly armed with deadly weapons. 41. Another point of controversy is the actual place where the deceased Brindawan, Lakhan and Jamuni received their bullet injuries. After carefully examining the statements of the prosecution witnesses, we are of the considered opinion that the houses of both the parties are just adjoining to each other. Further there is no evidence to suggest that the complainant side was first to attack. It is but natural that if accused/respondents had arrived on the spot armed with deadly weapons, the complainant side must have resisted the attack and while making such resistance, the accused Prabhu had also received some injuries. 42. In so far as the question of removing dead bodies of Brindawan and Lakhan is concerned, it may be mentioned here that Brindawan was very much alive when he was escorted by witness Tikaram and Patiram. There was an attempt to bring him for treatment but he succumbed to his injuries before he could be lifted on the bullock-cart. Similarly, if the deceased Lakhan fell near the house of Indralal and his dead body was kept nearby, it does not mean that the dead bodies were removed in order to show the change of place of incident. Otherwise also the place of incident is surrounded by the houses of both the parties and there is no evidence to show that complainant side had attacked accused Prabhu or Ramesh first by reaching at their houses. In these circumstances, the conclusion of the learned trial Court holding that the complainant side was first to attack Prabhu is apparently wrong and erroneous. 43. This brings us to the point of considering defence story of the accused respondents. In these circumstances, the conclusion of the learned trial Court holding that the complainant side was first to attack Prabhu is apparently wrong and erroneous. 43. This brings us to the point of considering defence story of the accused respondents. It had been suggested to the prosecution witnesses that the deceased Brindawan, Lakhan and injured Sundra, Mahendra and Siyaram had surrounded accused Prabhu and started beating him, whereupon accused Ramesh first sounded a warning to release Prabhu, and then fired in self defence of Prabhu. We are unable to understand that when first wordy quarrel started between accused Ramesh and deceased Brindawan, no role was assigned to Prabhu for making any intervention. In these circumstances, question of assaulting Prabhu by complainant side at this stage does not arise. 44. Prabhu in his examination recorded under Section 313 of Cr.P.C. has nowhere raised his plea of self defence nor he advanced any cause for his injuries. Similarly, accused respondent Ramesh in his examination has not raised any defence showing that he was compelled to resort to firing on account of his brother Prabhu being assaulted by the complainant side. What accused persons stated in their examination is that they will separately file written defence plea but no written defence plea was filed for the reasons best known to them. Prabhu has also not dared to examine himself as a defence witness. The only witness examined Ramgopal (DW1) found Prabhu lying in unconscious state. However, according to this witness when Prabhu was brought to the Police Station, he was very well in a position to speak and he also lodged report at the police station but unfortunately, the report (Ex.D/5) was not lodged by Prabhu but by this witness himself wherein it was stated that Prabhu is not in a position to speak and, therefore, it cannot be ascertained that how he received the injuries. 45. Dr. N.K. Bhardwaj (DW2) who examined Prabhu found an incised wound measuring 3" x 1" x 1/2" on his forehead caused by some sharp edged weapon. Rest of the injuries were contusions on left forearm right and left side of chest. Another simple injury was found below left side of cheek. Injury No. 1, 2 and 3 adviseded X-ray. In the opinion of the doctor, injury no. 1 on the forehead is also possible by blunt object. Rest of the injuries were contusions on left forearm right and left side of chest. Another simple injury was found below left side of cheek. Injury No. 1, 2 and 3 adviseded X-ray. In the opinion of the doctor, injury no. 1 on the forehead is also possible by blunt object. However, on being questioned by Court, he corrected himself by saying that this injury is possible by sharp object. 46. Dr. Yogendra Singh (DW3) in X-ray examination of the accused Prabhu found fracture of frontal bone and radio opaque shadow below mandible. There was also fracture of left forearm of radius styled process. The doctor has admitted that if any foreign body is inserted below the skin then radio opaque shadow is possible. It is surprising that in the opinion of Dr. Bhardwaj, who examined injuries of the respondent Prabhu, no injury on mandible was seen and if the statement of Dr. Yogendra Singh is accepted then the fracture of frontal bone below mandible is possible by gun shot pellet injury. On the other hand, there is no opinion of Dr. Bhardwaj, who examined the injuries that the forehead injury of Prabhu is also possible by gun shot. In view of the admission of Dr. Yogendra Singh that if any foreign body below the skin of mandible is inserted the radio opaque shadow is possible makes it suspicious that any gun shot injury was inflicted to accused Prabhu. Looking to the contradictions between both the doctors on the point of gun shot injury, we are of the considered opinion that the theory of gun shot injuries false and concocted. 47. Although respondent-accused Prabhu has neither examined himself in defence nor raised any defence plea in his examination recorded under Section 313 of Cr.P.C. A.S.I. Srinivas Sharma (PW13) has recorded statement of Prabhu wherein he stated that Ratan Lal created a ditch in the way causing obstruction in passing of their tractor. He filled up this ditch with some stones but deceased Brindawan removed and threw away the stones. This caused dispute between Ramesh, Bhikharam, Ratan Lai, Suresh, Indralal and Kashiram on one hand and Sundra, Brindawan, Lakhan and Mahendra on the other hand. When he intervened, he received a farsa injury on his head but he could not say as to who caused it. This caused dispute between Ramesh, Bhikharam, Ratan Lai, Suresh, Indralal and Kashiram on one hand and Sundra, Brindawan, Lakhan and Mahendra on the other hand. When he intervened, he received a farsa injury on his head but he could not say as to who caused it. Although this statement being the statement of accused recorded by the police, is not admissible in evidence and cannot be made basis of conviction but from the conduct of the accused-respondent an inference can be drawn that the injuries of Prabhu were not caused in a way as suggested by way of defence to the prosecution witnesses. 48. No doubt accused/respondents cannot be compelled to prove story of self-defence and they are entitled to get benefit of self defence in case some suspicion to this effect arises out of the prosecution evidence itself. Unfortunately, from the evidence of prosecution, as discussed hereinabove, there are no such admissions or circumstances so as to justify the theory of self-defence as suggested in cross-examination to prosecution witnesses. 49. The learned counsel appearing for the respondents/accused persons strenuously urged that even if the prosecution evidence is accepted as it stands there is no evidence to suggest that any of the gun shot injury was caused on vital part of any of the deceased persons. The previous enmity of election was not properly proved and was not an immediate cuase of assaulting any of the deceased or injured persons. In these circumstances, no intention can be attributed to any of the accused persons to cause death of any of the deceased persons. It can be inferred from the evidence and circumstances of the case that particularly there was no reason to assault Jamuni Dhoban who received bullet injury accidently and she suddenly fell in between the assailant and one of the injured. It is further contended on behalf of the respondents that injured Mahendra and Siyaram had failed to explain as to how they received the simple injuries except incised wound found in their medical examination. The fracture of left wrist of Mahendra has not been explained by him in his examination before the trial Court. In these circumstances, none of the accused is liable for causing any grievous injury to him. 50. The fracture of left wrist of Mahendra has not been explained by him in his examination before the trial Court. In these circumstances, none of the accused is liable for causing any grievous injury to him. 50. Simple injuries found on right arm, left arm and lateral aspect of left thumb and left shoulder of injured Sundra alone may be attributed to accused Suresh and Ratna. It is further argued that the dispute started all of a sudden and even though if the respondent/accused persons arrived armed with deadly weapons on the spot, the common intention of this unlawful assembly was not to cause death of any of the deceased person. It seems that in the beginning both the parties fought with lathi or farsa as apparent from the injury reports of Sundra, Siyaram, Mahendra and accused Prabhu and in the meanwhile, accused Ramesh and Inderlal resorted to firing. They have also not fired on any of the vital part of the body of any of the deceased and since the injury of Jamuni Bai though on vital part of stomach, was more due to an accident then with intention to assault. It is at a spur of moment that Ramesh and Inderlal resorted to firing. 51. In so far as Nanakram is concerned, there is no charge under Section 307 IPC against him for attempt to murder. He cannot be held guilty for firing at Mahendra. The common intention, therefore, in forming unlawful assembly was to cause hurt and not to cause death of any of the deceased persons. In these circumstances, the act of the accused persons in causing injuries or death has to be seen. In support of his contention, the learned counsel of respondents/ accused persons relied upon a decision of the Apex Court in Ramesh Babu Lal Doshl Vs. State of Gujarat ( 1996 (9) SCC 225 ) wherein it has been laid down that - The mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. We are of the considered opinion that in the cited case on facts, it was found that reasons given by the trial Court for recording the order of acquittal were cogent and convincing and the High Court was not justified in disturbing the same by reappraising the evidence. The ratio of the decision of above cited case is, therefore, not applicable to the present case because the trial Court has not taken into consideration the full facts, circumstances and evidence as brought out on record. 52. In the case of Betal Singh Vs. State of M.P. ( 1996 JLJ 674 ), the Apex Court also observed that where the trial Court committed an error in appreciating the medical evidence and while analysing the ocular evidence in the context of narrow compass as to whether appellant fired the gun which hit the deceased or it was a case of accidental firing in the course of scuffle. The trial Court looked into insignificant particulars and failed to notice the basic prosecution case. The ultimate conclusion that the defence of the accused appears to be correct and true is not on the basis of any material on record but because of the finding that the police had caused suspicion in respect of certain circumstances which result in exaggeration of the prosecution case. In such circumstances, the reasons given by the trial Court are wholly untenable and the ultimate order of acquittal is vitiated. 53. In State of M.P. Vs. Udai Singh ( 1998 (1) JLJ 44 ), the Apex Court reiterated that where there is no material discrepancy between the statements of witnesses and the findings of the trial Court are based on surmises ignoring the unimpeachable evidence of eye witness, then the acquittal becomes inevitable. 54. Taking into account the position in law as noticed hereinabove, it becomes quite clear that on the facts and circumstances as established on record of this case, the trial Court has not based its findings on any cogent and convincing reasons or evidence which can suggest that the respondents-accused persons had acquired any right of self-defence. 54. Taking into account the position in law as noticed hereinabove, it becomes quite clear that on the facts and circumstances as established on record of this case, the trial Court has not based its findings on any cogent and convincing reasons or evidence which can suggest that the respondents-accused persons had acquired any right of self-defence. The finding of acquittal of the trial Court, is, therefore, wholly unwarranted and deserves to be set aside. 55. The next point that crops up for consideration is whether Rojnamcha report (Ex.D/1) can be considered to be an FIR and, if so, what can be its effect ? This rojnamcha report of P.S. Baagchini seems to be the wireless message received from P.S. Jaura to the effect that some quarrel had taken place between the parties resulting in murder. The message further directs to summon the Officer-in-Charge of the P.S. on the spot. The contention of the learned counsel appearing for the respondents is that this being the first information of the crime and there is neither disclosure of names of accused persons or names of those injured or dead, the real assailants in fact were not known. We are unable to uphold such a line of argument because this wireless message from another P.S. cannot be treated as a first information report of the offence. Touching upon the nature of such a message, the Apex Court in case of Ram Singh Bhauji Jadeja Vs. State of Gujarat reported in AIR 1994 SCW 2042 observed that where a telephone message of the cognizable offence is cryptic in nature, and the Officer-in-charge proceeded to the place of occurrence on the basis of such information to find out the details of the nature of the offence itself, then it cannot be said that the information which had been received by him on telephone shall be deemed to be F.I.R. The real FIR is, therefore, in this case is Dehati Nalish (Ex.P/20) which was recorded at about 4.00 p.m. by A.S.I. S.N. Sharma (PW13) wherein full details of the offence and the nature of incident together with names of respondents-accused persons as assailants are provided. 56. 56. In so far as the offence under Section 25 & 27 of the Arms Act is concerned, there is no allegation that the fire arms which were used by respondents Ramesh and Indra Lal and Nanak Ram were acquired illegally because the seized fire arms were licenced fire arms. It is a different matter that the licences stood in the names of other family members of the respondents. The offence under Section 25 of the Arms Act, therefore, is not attracted. However, such fire arms were used for unlawful purpose i.e. for committing the crime and, therefore, the offences against above respondents-accused persons fall under Section 27 of the Arms Act, while awarding punishment it has to be borne in mind that the accused respondents had to suffer the agony of the pendency of this appeal for the last ten years. 57. In our opinion even taking the worst side of the prosecution case and the probable defence of the accused/respondents as suggested to the prosecution witnesses, if it is presumed that any of the injured had caused some injuries to accused Prabhu and accused Ramesh was compelled to fire at deceased Brindawan in defence of accused Prabhu, then there was no justification to fire another gun shot by accused Ramesh towards complainant Sundra which accidentally stated to have caused injury to Jamuni Bai. By no stretch of imgination, in such circumstances, it can be presumed that accused Ramesh bad fired in self-defence of his brother Prabhu, Since none of the accused-respondents had taken a specific plea in their examination under Section 313 Cr.P.C. that the injured had come to assault them at their house and they were compelled to fire in self-defence, the theory of self-defence all the more becomes baseless and false. 58. From the facts and circumstances as brought out on record, we are of the considered opinion that accused Ramesh and Indra Lal had resorted to indiscriminate firing towards the victims, who were running to hide themselves for some shelter, the offence under Sections 148, 302 read with Section 149 IPC and Section 27 of the Arms Act are well proved against accused-respondent Ramesh. Although offence of late accused Indralal is also proved, however, we refrain from making any reference to him as he had expired during the pendency of appeal. 59. Although offence of late accused Indralal is also proved, however, we refrain from making any reference to him as he had expired during the pendency of appeal. 59. In so far as accused respondent Nanak Ram is concerned, although he was armed with rifle, but the only role assigned to him is that he fired aiming at injured Mahendra, who had a narrow escape. However, since there is no charge under Section 307 IPC against him the only offence proved against him is under Section 143 IPC and Section 27 of the Arms Act. 60. Accused Kashi Ram caused a farsa blow on the head of Sundra and Siyaram was assaulted with farsa by Teeka Ram. None of these accused-persons can be held liable for inflicting any injuries to the deceased persons. Their offence is, therefore, clearly falls under Sections 148 and 324/149 IPC. 61. Accused Suresh and Ratna were armed with lathis and they assaulted deceased Brindawan and complainant Sundra with lathi. The deceased Brindawan had received lacerated wound on right knee joint anteiror aspect of patella and left knee joint, which may be possible by lathi, but none of these injuries were on vital part nor sufficient to cause death in ordinary course of nature. In the circumstances, no intention to cause death can be attributed to accused Suresh and Ratna. 62. Sundra also received contusions on right and left arms and left gluteal region and an abrasion on left shoulder and swelling on left thumb. These injuries were also simple in nature and, therefore, offence against Suresh and Ratna are proved under Sections 147 & 323/149 IPC. 63. Further in our opinion although it is alleged against accused-respondent Prabhu that he inflicted a farsa injury on the head of Mahendra, but since injuries of Prabhu were not properly explained by the prosecution, his act of causing injury to Mahendra may be justified in self-defence. In these circumstances, Prabhu alone deserves benefit of doubt from the charges leveled against him. 64. In view of the aforesaid legal and factual position, we hereby partly allow the State's appeal against respondents-accused persons expect respondent Prabhu. The impugned judgment and order of acquittal of the trial Court is set aside. We hold respondents-accused Ramesh guilty of offence under Sections 147,302 read with Section 143 IPC and under Section 27 of the Arms Act. 64. In view of the aforesaid legal and factual position, we hereby partly allow the State's appeal against respondents-accused persons expect respondent Prabhu. The impugned judgment and order of acquittal of the trial Court is set aside. We hold respondents-accused Ramesh guilty of offence under Sections 147,302 read with Section 143 IPC and under Section 27 of the Arms Act. Nanak Ram under Section 148 IPC and Section 27 of the Arms Act. Kashi Ram and Teeka Ram under Sections 148 and 324/149 IPC. Suresh, Ratna under Sections 147 and 323/149 IPC. 65. Having been convicted respondents-accused persons as stated hereinabove, they are hereby sentenced as follows - (1) Accused respondent Ramesh is sentenced to life imprisonment and a fine of Rs. 5,000/- for offence under Section 302 read with Section 149 IPC, in default of payment, six months' R1, rigorous imprisonment of one year for offence under Section 148 IPC and rigorous imprisonment of one year under Section 27 of the Arms Act. All the sentences are to run concurrently. (2) Accused-respondent Nanak Ram one year rigorous imprisonment for offence under Section 148 IPC and one year rigorous imprisonment for offence under Section 27 of the Arms Act. Both the sentences are to am concurrently. (3) Accused-respondents Kashi Ram and Teeka Ram each one year's rigorous imprisonment for offence under Section 148 IPC and one year's rigorous imprisonment for offence under Section 324 read with Section 149 IPC. Both the sentences are to run concurrently. (4) Respondents-accused Suresh and Ratna each one year's rigorous imprisonment for offence under Section 147 IPC and one year's rigorous imprisonment under Section 323 IPC read with Section 149 IPC. Both the sentences are to run concurrently. (5) The bai bonds of respondents/accused Ramesh. Nanak Ram, Kasi Ram, Teeka Ram, Suresh and Ratna are cancelled and they are directed to surrender before the CJM, Morena, to serve out their terms of imprisonment as indicated above or else requisite steps be taken to issue warrants of arrest against them and realisation of amount of security against the sureties.