J. C. GUPTA, J. ( 1 ) THIS appeal is directed against the order dated 24-3-1981 passed by the then Addl. Sessions Judge, Non-metropolitan Area, Kanpur is sessions trial No, 495 of 1998 whereby appellant No. 11 Raja Ram has been sentenced to life imprisonment under S. 302 I. P. C. , 3 years R. I. under S. 148 I. P. C. , one year R. I. under S. 323 read with S. 149 I. P. C. and 3 years R. I. under S. 324 read with S. 149 I. P. C. ( 2 ) APPELLANT No. 10 Dashrath has been sentenced to undergo life imprisonment under S. 302 read with S. 34 of the I. P. C. , 3 years R. I. under S. 148 I. P. C. , one year R. I. under S. 323/149 I. P. C. and 3 years R. I. under S. 324/149 I. P. C. Appellant No. 3-Gyan Singh has been sentenced to 3 years R. I. under S. 148 I. P. C. 3 years R. I. under S. 324/149 I. P. C. and one year R. I. under S. 323 read with S. 149 I. P. C. ( 3 ) REST of the appellants, Hari Lal, Bhoora, Ram Narain, Kham Raj, Ranjeet, Ram Roop, Shyam Sundar and Sheo Nath have been sentenced to 2 years R. I. under S. 147 I. P. C. , 3 years R. I. under S. 324/149 I. P. C. and one year R. I. under S. 323/149 I. P. C. ( 4 ) ALL the sentences awarded to the appellants are to run concurrently. ( 5 ) UNDISPUTEDLY appellants and the deceased were descendants of a common ancestor and were living in village Daya Ka Purwa within the area of police station Akbarpur, District Kanpur. There was a joint small piece of land of accused, complainant and other collaterals which was known as Khajiha. It was jointly owned and used by the parties for tethering their cattle. It is said that on 31-7-1977 at about 9 a. m. Pratap Singh son of Gajraj Singh went to the said piece of land and had tied his cattle there. Raja Ram and Gyan Singh accused remonstrated and objected to the tying of cattle in the said piece of land. They also hurled abuses and threatened Pratap Singh with dire consequences if he would tie his cattle there. Raja Ram and Gyan Singh accused remonstrated and objected to the tying of cattle in the said piece of land. They also hurled abuses and threatened Pratap Singh with dire consequences if he would tie his cattle there. Pratap Singh returned home. Soon after some time, accused Raja Ram armed with Kanta, Gyan Singh armed with Barchchi, Dashrath armed with country made pistol, Hari Lal, Bhoora,ram Narain, Khem Raj, Ram Roop, Shyam Sundar, Sheo Nath and Ranjeet armed with Lathi arrived at the house of Gajraj Singh, first informant. Raja Ram challenged Pratap saying that he be not spared. As soon as Pratap came out of his house he was fired at by accused Dashrath but Pratap escaped. Deshrath made another attempt but that shot also misfired. Thereafter accused Raja Ram gave a Kanta blow on Pratap which caused him injuries and he fell down on the ground. On hearing alarm and shrieks, Narendra Singh, Surendra Singh, Kesh Kali, wife of Vishambhar intervened whereupon Gyan Singh attacked Narendra Singh with Barchchi while other accused assaulted Narendra Singh, Surendra Singh and Kesh Kali with Lathi. The incident was also witnessed by Raj Nath, Mahadeo, Munshi, Mool Chand and others. As pressure mounted with the arrival of witnesses accused persons ran away with their respective weapons. Thereafter Pratap was shifted to the Verandah of his house and then he as well as other injured persons were carried to police station Akbarpur in a bullock cart. Gajraj Singh, P. W. 4 got first information report Ex. Ka 1 scribed by Ram Adhar Mishra and lodged the same at police station Akbarpur on the same morning at 11. 30 a. m. Case was registered in the general diary and investigation ensued. Injured persons were sent to Hospital for medical examination. ( 6 ) INJURIES of Pratap Singh weremedically examined by Dr. K. D. R. Srivastava, P. W. 6 on the same day at 12. 15 P. M. and following injuries were found;1. Incised wound 15 cm. x 5 cm. into brain tissue deep, cutting all structures in between i. e. layers and scalp bones and dura mater i. e. (brain covering ). Brain tissues were protruding out of the wound. Wound was profusely bleeding continuously. Injury was kept under observation and x-ray was advised and patient was referred to U. H. M. Hospital, Kanpur. Condition of patient was low, pulse was 110/mt. Brain tissues were protruding out of the wound. Wound was profusely bleeding continuously. Injury was kept under observation and x-ray was advised and patient was referred to U. H. M. Hospital, Kanpur. Condition of patient was low, pulse was 110/mt. , blood pressure was 100/mm. , temperature was normal. Pupils were slightly reacting to light. Patient was in semi-coma state. ( 7 ) AT the trial Dr. Srivastava opined that the injury of Pratap could be the result of sharp edged weapon such as Kanta and was caused within 12 hours and further that the said injury was sufficient to cause death in ordinary course of nature. Injury report of Pratap Singh is Ex. Ka. 3. ( 8 ) THE same Dr. Srivastava also medically examined Narendra Singh on the same day at 1 p. m. and he found following injuries :1. Incised wound 2 cm. x 0. 5 cm. x depth not probed and kept under observation, over left side of chest on the anterior axillary fold, 8cm. above and lateral to left nipple X-ray was advised and patient was referred to U. H. M. Hospital for spinal surgicial intervention. 2. Lacerated wound 1 cm. x. 2 cm. with a swelling of 4 cm. in diameter over the right side of head, 10 cm. above the right ear. 3. Contusion 3 cm. x. 3 cm. over the right side of shoulder region. ( 9 ) IN the opinion of the doctor all the injuries were about half day old. Injury No. 1 was caused by sharp pointed object, while injuries No. 2 and 3 were simple in nature and could be caused by blunt object like Lathi. Injury report of Narendra Singh is Ex. Ka 4. ( 10 ) ON the same day Dr. Srivastava also medically examined Surendra Singh at 1. 15 p. m. and found following injuries :1. Lacerated wound 1. 5 cm. x. 5 cm. x scalp deep over the right side of head, 7 cm. above the right ear. 2. Abraded contusion 1 cm. x 1 cm. on the middle part of forehead. ( 11 ) BOTH the injuries were caused by blunt weapon and were of half a day duration. They were simple in nature. Injury report of Surendra Singh is Ex. Ka 5. ( 12 ) SMT. Kesh Kali was also examined by the same Doctor at 1. Abraded contusion 1 cm. x 1 cm. on the middle part of forehead. ( 11 ) BOTH the injuries were caused by blunt weapon and were of half a day duration. They were simple in nature. Injury report of Surendra Singh is Ex. Ka 5. ( 12 ) SMT. Kesh Kali was also examined by the same Doctor at 1. 50 p. m. and one abraded contusion on the halics of pinna of left ear. Injury was simple, about half day old, and was caused by blunt object. Injury report of Smt. Kesh Kali is Ex. Ka 6. ( 13 ) DR. R. Prakash, Radiologist took X-ray of the skull of Pratap Singh and found that there was fracture in fronto-parietal region on right side. Pratap Singh was admitted in U. H. M. Hospital on 1-8-1977 and he remained under treatment there up to 6-9-1977 where at 3 p. m. he succumbed to his injuries. Dr. D. K. Chhabra, P. W. 8 was posted as Neuro-surgeon and he performed emergency operation on 3-8-1977. Dr. A. K. Rastogi, P. W. 7 was also posted as medical officer/surgeon in U. H. M. Hospital, Kanpur. He sent information in writing to Magistrate for recording the dying declaration of Pratap. The letter which he wrote to the Magistrate has been proved as Ex. Ka 7. On getting requisition, Magistrate Shri Chheda Lal reached Hospital and recorded dying declaration of the deceased, Ex. Ka 15, at 11. 12 a. m. on 1-8-1977. Before the statement of deceased Pratap Singh was recorded, Dr. A. K. Rastogi medically examined him and found that Pratap Singh was in a fit mental state to make statement. Endorsement made in lieu of such examination was also appended on the dying declaration as Ex. Ka 8. The Magistrate started recording the statement at 11. 12 a. m. and completed the same at 11. 25 a. m. Thereafter again he got the condition of Pratap Singh examined by Dr. Rastogi who reported that Pratap Singh was in a fit state of mind and remained so throughout the entire period when his statement was recorded. That endorsement has been proved as Ex. Ka 8/1. ( 14 ) P. W. 9, S. I. Chhabi Raj Singh was posted at police station Akbarpur. Rastogi who reported that Pratap Singh was in a fit state of mind and remained so throughout the entire period when his statement was recorded. That endorsement has been proved as Ex. Ka 8/1. ( 14 ) P. W. 9, S. I. Chhabi Raj Singh was posted at police station Akbarpur. The case was registered in his absence and when investigation was entrusted to him he recorded the statement of first informant and other witnesses, inspected the scene of occurrence and prepared site plan Ex. Ka. 11. He also collected plain and blood stained earth from the place of occurrence and prepared memo Ex. Ka. 12. On completion of investigationhe laid charge sheet against all the accused persons. ( 15 ) IN order to substantiate the charges levelled against the accused persons the prosecution before the trial Court produced 10 witnesses in all. They were P. W. 1 Surendra Singh, P. W. 2 Kesh Kali, P. W. 3, Ram Nath, P. W. 4, Gajraj Singh, P. W. 5, Dr. R. Prakash, Radiologist, P. W. 6 Dr. K. D. R. Srivastava, P. W. 7 Dr. S. K. Rastogi, P. W. 8, Dr. D. K. Chhabra, P. W. 9 S. I. Chhavi Raj and P. W. 10 Chheda Lal, Magistrate. Out of the ten witnesses examined P. W. 1 Surendra Singh and P. W. 2 Smt. Kesh Kali are injured witnesses while P. W. 3 Ram Nath and P. W. 4 Gajraj Singh are witnesses of fact. ( 16 ) IN their statements before the Court made under S. 313, Cr. P. C. accused Bhoora, Khemraj, Shyam Sundar, Sheo Narain Singh and Ranjit totally denied the prosecution allegations and stated that they were not present at the time of occurrence. Accused Hari Lal stated that Pratap Singh deceased had come on the door of Raja Ram accused for fixing a peg in his land which was protested by Raja Ram resulting into an altercation between them whereupon Gajraj, Gorey Lal, Kali Charan, Sipahi Lal, Narendra Sukhai, Krishna Kumar, Phauzdar, and Sobaran also arrived and attacked Raja Ram and fled away but Hari lal along with other were beaten. According to him accused Ranjit, Ram Narain, Raja Ram and Dashrath wielded bamboo in their self defence. According to him accused Ranjit, Ram Narain, Raja Ram and Dashrath wielded bamboo in their self defence. Accused Ram Narain took up almost the same defence and according to him he, Ranjit and Hari Lal were beaten and then Raja Ram and Dashrath wielded lathi to save them. He further stated that Gyan Singh snatched Kanta from Narendra Singh and Pratap Singh made an unsuccessful attempt to assault him with lathi but he ducked and Kanta blow of Gyan Singh struck Pratap Singh. Other accused persons also stated almost same facts. It would thus appear that excepting accused Bhoora, Khemraj, Shyam Sunder, Sheo Narain Singh and Ranjeet all other accused persons admitted their presence at the scene of occurrence and have put a counter version of the incident. According to the defence version incident in question occurred at Khajiha and not in front of the house of Gajraj Singh as alleged by the prosecution and injuries were caused on the prosecution side in exercise of right of private defence. Accused persons examined in defence Jagannath as D. W. 1 who stated facts in support of defence version. The defence also got injury reports of persons injured on defence side proved from Dr. K. D. R. Srivastava P. W. 6. They were of accused Ranjeet, Ram Narain, Hari Lal, Roop Ram and Dashrath. ( 17 ) INJURY report of Ranjit accused is Ex. Kha 2. Injuries were examined on 31-7-1977 at 2. 30 p. m. and following injuries were found :1. Crushed lacerated wound 6 cm. x 2 cm. x scalp deep with swelling 3 cm. all around the wound. Injury was kept under observation and x-ray was advised. 2. Incised wound 2 cm. x 0. 5 cm. into cutting the pinna and its cartilage with the opening of the posterior skin layer of left ear. Probe passes through and through the wound. 3. Abrasion 1 cm. x 1 cm. over the back upper part of right shoulder region. ( 18 ) IN the opinion of the doctor injury Nos. 1 and 3 were caused by hard object while injury No. 2 by sharp pointed object. They were of half day duration. The general condition of Ranjit Singh was low and he was semi-conscious. Pulse was 100 per minute, pupil were reacting to light. ( 18 ) IN the opinion of the doctor injury Nos. 1 and 3 were caused by hard object while injury No. 2 by sharp pointed object. They were of half day duration. The general condition of Ranjit Singh was low and he was semi-conscious. Pulse was 100 per minute, pupil were reacting to light. ( 19 ) ACCUSED Ram Narain was also medically examined by the same doctor on the same day at 3 p. m. and following injuries were found :1. Lacerated wound 6 cm. x 1 cm. x scalp deep exposing skull bone over the right side of fore head 9 cm above the right ear. 2. Abraded contusion 10 cm. x 10 cm. on the upper part of back in the scapular region of left side. Injury was kept under observation and x-ray was advised. 3. Abraded contusion 7 cm. x 4 cm. over the outer side of right upper arm middle part. Injury report of Ram Narain is Ex. Kha 3. ( 20 ) HARI Lal accused was medically examined at 3. 30 p. m. and following injuries were found :1. Incised wound 5 cm. x 1 cm. x scalp deep exposing skull bone on the occipital region on right side 8 cm. medial to right ear. 2. Contusion 7 cm. x 10 cm. over the right shoulder and upper scapular regionof left side. 3. Abraded contusion 18 cm. x 5 cm. oblique in direction on the back lumbar spine lever. Injury was kept under observation and x-ray advised. Injury report of Hari Lal is Ex. Kha 4. ( 21 ) RAM Roop was also medically examined on the same evening at 4 p. m. and following injuries were found :1. Lacerated wound 8 cm. x 1 cm. x scalp deep over right side of head, 6 cm. above the right ear. 2. Abraded contusion 5 cm. x 5 cm. over the right shoulder region. Injury report of Ram Roop is Ex. Kha 5. ( 22 ) ACCUSED Dashrath Singh was medically examined at 4. 30 p. m. and following injury was found :abraded contusion on the dorsum of hand left little ring and middle finger and their metacarpal bone area. Injury was kept under observation and x-ray advised. Injury report of Dashrath is Ex. Kha 6. Kha 5. ( 22 ) ACCUSED Dashrath Singh was medically examined at 4. 30 p. m. and following injury was found :abraded contusion on the dorsum of hand left little ring and middle finger and their metacarpal bone area. Injury was kept under observation and x-ray advised. Injury report of Dashrath is Ex. Kha 6. ( 23 ) ON appraisal of evidence, learned Sessions Judge has found that the prosecution case against the accused persons has been fully established beyond any reasonable doubt. The learned Session Judge has further come to the conclusion that excepting Raja Ram and Dahsrath no other member of unlawful assembly could be held vicariously liable for the murder of Pratap Singh as common object of unlawful assembly was not to commit the murder of Pratap Singh and that the murder was not committed in prosecution of common object of unlawful assembly. Accordingly the learned Sessions Judge convicted appellants Raja Ram and Dashrath and sentenced them to imprisonment for life for causing the death of Pratap Singh and rest of the appellants have been convicted under S. 147 or 148 I. P. C. and also under S. 323 and 324 I. P. c. with the aid of S. 149 I. P. C. ( 24 ) ON behalf of the appellants Shri P. N. Mishra, Senior Advocate appeared and advanced argument at length. State was represented by learned A. G. A. , while Shri Avinash Hajela appreared for the complainant. State was represented by learned A. G. A. , while Shri Avinash Hajela appreared for the complainant. ( 25 ) SRI P. N. Mishra learned counsel for the appellants submitted before us that from the prosecution evidence it has not been established beyond doubt that the incident had occured at the place suggested by the prosecution; that the prosecution is guilty of suppressing the truth and for presenting a distorted version of the incident; that the number of injuries sustained on defence side by four persons is much more than the number of injuries suffered by persons on prosecution side, which itself indicates that the prosecution party was the aggressor; that no explanation of injuries on defence side was given in the First Information Report or during investigation and for the first time in the trial Court a vain attempt was made by the prosecution witnesses to explain the injuries on defence side; that even this belated attempt failed to explain incised injuries suffered on defence side; and that in the circumstances appearing in the case no weight could be attached to the dying declaration of Pratap Singh deceased. On the other hand learned counsel for the complainant and the learned A. G. A. for the State supported the findings of the trial Court. It was argued by them that the dying declaration of deceased Pratap Singh was recorded by an Executive Magistrate in the presence of Medical Officer and therefore, the same cannot be brushed aside from consideration; that it is established from the evidence on record that the incident in question had occurred in front of the house of Pratap Singh as alleged by the prosecution and the evidence fully proved that accused party was the aggressor. Regarding injuries on defence side it was argued that when 11 persons were assaulting deceased and other persons on prosecution side it could be that some injuries may have been sustained on defence side and therefore, in such a situation the prosecution will not fail merely on the ground of injuries on defence side being not fully explained and in any view of the matter no right of self-defence could be available to the accused party as they were the aggressors having initially launched attack on Pratap Singh and others. ( 26 ) IT has been disputed nor assailed before us that deceased Pratap Singh had sustained an incised injury which was brain tissue deep. It has also not been assailed that the said injury resulted in the death of Pratap Singh subsequently. it is true that in the present case no autopsy of the dead body of Pratap Singh was conducted after his death in U. H. M. Hopital, Kanpur but from the statements of Dr. D. K. Chhabrap. W. 8 and Dr. K. D. R. Srivastava, P. W. 6 no doubt is left in our mind that Pratap Singh sustained an incised injury on his head which proved fatal and he died on 6-9-1977. Dr. K. D. R. Srivastava P. W. 6 who had examined Pratap Singh at 12. 15 p. m. on 31-7-1977, categorically stated that the said injury was caused by a kanta with abnormal force and the injury was dangerous to life and was sufficient to cause death in ordinary course of nature. Pratap Singh was referred to U. H. M. Hospital, Kanpur for further treatment. Dr. D. K. Chhabra P. W. 8 stated that Pratap Singh was admitted in U. H. M. Hopital, Kanpur on 7-8-1977. Emergency operation was conducted on 3-8-1977. Dr. Chhabra categorically stated that natural consequence of head injury of Pratap Singh was brain abscess and that the said injury was sufficient to cause death in ordinary course of nature and ultimately Pratap Singh died due to the said head injury. It has also been stated by him that when cause of death of Pratap Singh was known from hospital records he did not think it necessary to report for his post-mortem examination. Therefore, the mere fact that no postmortem examination was held in this case, that would not have any adverse effect on the prosecution case. From the statement of Dr. K. D. R. Srivastava, P. W. 6 it is further established that Narendra Singh, Surendra Singh and Smt. Kesh Kali had also received injuries and their injuries were examined between 1 p. m. to 1. 50 p. m. on 31-7-1977 Dr. Srivastava has further opined that injuries of the aforesaid three persons could be caused at about 9 a. m. on the same day. Regarding injuries of Narendra Singh, Dr. 50 p. m. on 31-7-1977 Dr. Srivastava has further opined that injuries of the aforesaid three persons could be caused at about 9 a. m. on the same day. Regarding injuries of Narendra Singh, Dr. Srivastava opined that injury No. 1 was caused by some shrap pointed object like barchhi or ballam while injuries No. 2 and 3 were of blunt object like lathi, Injuries on the person of Surendra Singh and Smt. Kesh Kali were of blunt object. The same doctor further stated that on the same day he had medically examined accused Ranjeet Singh, Ram Narain, Hari Lal, Ram Roop and Dashrath between 2. 30 p. m. to 4. 30 p. m. According to his opinion injuries No. 1 and 2 of Ranjeet Singh were of blunt object like lathi while injury No. 3 was of sharp pointed weapon like Ballam. Injuries of Ram Narain were of blunt object. Injury No. 1 of accused Hari Lal was from sharp cutting weapon like kanta and other injuries were of blunt object. Injuries of Ram Roop and Dashrath were of blunt object. He further categorically stated that injuries of these persons on defence side could be caused on 31-7-1977 at about 8. 30 a. m. ( 27 ) IT is therefore, fully established that an incident had occurred in the morning of 31-7-1977 at about the time as alleged by the prosecution and in the said incident Pratap Singh deceased, Narendra Singh, Surendra Singh P. W. 1 and Kesh Kali P. W. 2 sustained injuries on prosecution side while accused Hari Lal, Ram Narain, Ram Roop, Ranjeet and Dashrath Singh on defence side. By no stretch of imagination injuries on defence side could be said to be self-inflicted or self-suffered. Defence has also put a counter version of the incident and from their side also First Information Report was lodged and case was registered and investigated. That case was also challaned. Therefore, we have to scrutinize the evidence in a careful manner. ( 28 ) IN order to substantiate prosecution allegation of the incident occurring in the manner alleged by the prosecution, four witnesses of fact were produced from the prosecution side. That case was also challaned. Therefore, we have to scrutinize the evidence in a careful manner. ( 28 ) IN order to substantiate prosecution allegation of the incident occurring in the manner alleged by the prosecution, four witnesses of fact were produced from the prosecution side. They were Surendra Singh P. W. 1, Smt. Kesh Kali P. W. 2, Ram Nath P. W. 3 and Gajraj Singh P. W. 4 of whom Surendra Singh, P. W. 1 and Kesh Kali P. W. 2 were injured witnesses. ( 29 ) P. W. 1 Surendra Singh supported the prosecution case and stated that at the time of incident he was present at the door of his house. He heard some noise from the side of the door of Gajraj Singh. On this he reached there and saw all the 11 accused persons present there. Raja Ram was armed with kanta, Dashrath with country-made-pistol and Gyan Singh with barchi and rest with lathis. Accused persons were fixing peg near the well. Accused Raja Ram was saying that he has also his share in the said piece of land and he would occupy the same. He further asked his associates that Pratap Singh be not spared. Pratap Singh came out of his room and as soon as he saw accused persons, he attempted to run but in the meantime Dashrath Singh opened fire upon him from country made pistol but the shot did not hit him. Dashrath fired another shot but it was a misfire. Pratap Singh then jumped from the Chabutra to run away but Raja Ram, accused struck a kanta blow on his head whereby Pratap fell on the ground in between his Chabutra and the well. When his brothers wife Kesh Kali rushed to save Pratap Singh, Ram Narain assaulted her with lathi. She also fell down. The witness further stated that when he and his brother Narendra Singh intervened, Gyan Singh accused with barchhi and rest with lathi assaulted them. He further stated that he and his brother Narendra defended themselves with bamboos which they picked up from landauri situated in the north of the well. He further stated that the incident was also witnessed by P. W. 3 Ram Nath, Mahadev, Mool Chand, Munshi Lal and P. W. 4 Gajraj. He further stated that he and his brother Narendra defended themselves with bamboos which they picked up from landauri situated in the north of the well. He further stated that the incident was also witnessed by P. W. 3 Ram Nath, Mahadev, Mool Chand, Munshi Lal and P. W. 4 Gajraj. ( 30 ) P. W. 2 Smt. Kesh Kali is daughter- in-law of Gajraj P. W. 4 Deceased Pratap Singh was elder brother of her husband Vishram singh. She also stated almost the same facts as were stated by P. W. 1 Surendra Singh. ( 31 ) P. W. 3 Ram Nath has stated that he was near his own house when he heard cries. He came to the scene of occurrence and saw all the accused persons of whom Raja Ram was armed with kanta, Dashrath with country made pistol, Gyan Singh with a barchhi and rest with the lathis. They were fixing a peg in the land of Gajraj Singh. He also stated that as soon as Pratap Singh came out of his room, he started running away on seeing accused person assembled there. Dashrath accused opened fire over him which did not hit him and second shot misfired. He also stated that Raja Ram accused struck kanta on the head of Pratap Singh while Smt. Kesh Kali was assaulted with lathi by accused Ram Narain and when Surendra Singh and Narendra Singh jumped into the fray Gyan Singh assaulted them with barchhi and rest with lathi. Surendra Singh and Narendra Singh defended them selves with bamboos. ( 32 ) P. W. 4 Gajraj Singh stated that all the accused persons are his Khandani being descendants of Kharga real brother of his grandfather Ganpat. He also gave an eyewitness account and fully corroborated the evidence of the injured persons. He proved first information report which he got scribed from Ram Adhar Mishra. ( 33 ) THE main question that arises for consideration is whether accused persons were the aggressor and for that it has to be seen and fond out as to where the incident had occurred. According to the prosecution case the incident occurred in front of the house of Gajraj Singh father of deceased Pratap Singh. From the site plan Ex. Ka. 1 it would appear that in front of the house of Gajraj Singh there is a Chabutra in the east. According to the prosecution case the incident occurred in front of the house of Gajraj Singh father of deceased Pratap Singh. From the site plan Ex. Ka. 1 it would appear that in front of the house of Gajraj Singh there is a Chabutra in the east. There is a well in front of Gajrajs house with an open piece of land of about 13 cubits in length in between Chabutra and the well. According to prosecution case accused persons eleven in number had assembled in this piece of land and were fixing a peg in the said land. At that very moment Pratap Singh came out of his room and finding accused persons there he tried to run away whereupon he was assaulted. He was first fired upon by accused Dashrath but escaped injury and thereafter Raja Ram accused inflicted kanta blow on his head resulting in serious injury whereby Pratap Singh fell on the ground. It has now to be seen whether the prosecution has been able to establish beyond doubt that the incident had occurred in front of the house of Gajraj Singh. If the place of occurrence is established the accused party would certainly be the aggressors and in that event they will have no legal right of private defence to exercise. Both Surendra Singh P. W. 1 and P. W. 2 Smt. Kesh Kali also undoubtedly received injuries in the course of the same incident. Their presence at the scene of occurrence thus cannot be doubted. Presence of Gajraj P. W. 4 is also admitted to defence. All these three witnesses have categorically stated that the incident occurred in front of the house of Gajraj Singh. The most important piece of evidence to fix the place of occurrence is of P. W. 3 Ram Nath. He has categorically stated that at the time of incident he was present near his old house. He also stated that the incident occurred in front of the house of Gajraj Singh. In cross-examination he stated that his house was placed at a distance of about 20-25 paces from the scene of occurrence. The defence could not bring on record any material to show that this witness was in any way interested in deceased or complainant party. This witness had no animus at all to depose falsely against accused persons. In cross-examination he stated that his house was placed at a distance of about 20-25 paces from the scene of occurrence. The defence could not bring on record any material to show that this witness was in any way interested in deceased or complainant party. This witness had no animus at all to depose falsely against accused persons. Since his house was situated in the neighbourhood he is a most natural and probable witness. He has given a vivid account of the entire incident. The evidence of injured witnesses gets full support from the evidence of this to tally independent, natural and probable witness. Their evidence further gets ample support from the dying declaration of the deceased Ex. Ka. 8which was recorded by Sri Chheda Lal P. W. 10 Executive Magistrate. This dying declaration was recorded in U. H. M. Hospital, Kanpur where Pratap Singh was admitted on a reference made by Dr. K. D. R. Srivastava who had medically examined Pratap Singh at 12. 15 p. m. on the same day. The dying declaration Ex. Ka. 8 was recorded on 1-8-1977 between 11. 12 a. m. and 11. 22 a. m. In his dying declaration Pratap Singh also stated that the incident occurred when accused persons were fixing peg in front of the door of his house. The Investigating Officer, Chhabi Raj P. W. 9 is cross-examination admitted that he had found some pegs fixed in the land in front of the house of Pratap Singh near the well. However the I. O. did not show such pegs in the site plan nor mentioned that fact in the inspection note but this omission on the part of the investigation cannot adversely effect the prosecution case particularly when scene of occurrence is fixed from the evidence of the two injured witnesses supported by a totally independent witness Ram Nath P. W. 3 and the dying declaration of the deceased. The learned Session Judge has assigned number of resons for showing that the investigation by Sri Chhabi Raj Singh, P. W. 10 was not made in a fair and independent manner. Therefore, above noted lapse on the part of the investigating officer will not be enough to discard the testimony of the eye-witnesses and the dying declaration. The learned Session Judge has assigned number of resons for showing that the investigation by Sri Chhabi Raj Singh, P. W. 10 was not made in a fair and independent manner. Therefore, above noted lapse on the part of the investigating officer will not be enough to discard the testimony of the eye-witnesses and the dying declaration. We, therefore, find that it has been fully established that the incident occured in front of the house of Pratap Singh and therefore,it can safely be held that the accused party was the aggressor. ( 34 ) LEARNED counsel for the appellants attacked the dying declaration on the ground that the possibility of it being tutored is not ruled out and that having regard to the nature of injuries of Pratap Singh it is doubtful that Pratap Singh was in a fit mental state to give any statement. We find no force in this submission of the learned counsel for the appellants. P. W. 10 Chheda Lal Executive Magistrate who had recorded the dying declaration of deceased Pratap Singh has clearly stated that he had satisfied himself about the mental condition of Pratap Singh before recording his dying declaration. He further stated that regarding fitness of mental state of Pratap Singh he got him medically examined by Dr. S. K. Rastogi who had appended certificate to that effect. The certificate was as follows :"certified that Pratap Singh is in fit state of mind to give statement. " ( 35 ) THIS certificate was signed by Dr. Rastogi in the presence of Chheda Lal P. W. 10, Executive Magistrate. Pratap Singh was again examined by the same doctor, when statement of Pratap Singh was completed, Dr. Rastogi appended another certificate on the bottom of dying declaration in the following terms :"certified that patient is in fit state of mind and remained throughout fit state of mind to give statement. " ( 36 ) WE have no reason to disbelieve Sri Chheda Lal who is a responsible Executive Magistrate that when Pratap Singhs statement was recorded as dying declaration he was in a fit state of mind. Sri Chheda Lal further stated that when he recorded the statement of Pratap Singh no police personal or relation of Pratap Singh or any person of outside agency were present there. He started recording statement of Pratap Singh at 11. Sri Chheda Lal further stated that when he recorded the statement of Pratap Singh no police personal or relation of Pratap Singh or any person of outside agency were present there. He started recording statement of Pratap Singh at 11. 12 a. m. and completed the same at 11. 22 a. m. That means he took only about ten minutes to scribe the dying declaration. Therefore, it cannot be said that the dying declaration was the result of tutoring. There is yet another circumstance which rules out the possibility of the dying declaration being the result of tutoring. In this dying declaration Pratap Singh named only seven persons as assailants,however in the first information report lodged by Gajraj Singh father of Pratap Singh, eleven persons were named as accused. Had it been a case of tutoring names of all eleven persons would have been there in the Dying Declaration. Further in this dying declaration there is no averment regarding the assault made on Surendra Singh, Narendra Singh and Smt,. Kesh Kali because Pratap Singh had stated that as soon as Raja Ram struck blow on his head he fell down and became unconscious. If Pratap Singh had been tutored by his father or other relations he would have positively made statement regarding the injuries of Smt. Kesh Kali, Surendra Singh and Narendra Singh also. ( 37 ) LEARNED counsel for the appellants vehemently argued that as many as five persons had sustained injuries on defence side also, which were examined on the same dayand since they have not been explained satisfactorily by the prosecution it must be held that the prosecution case is not true and the injuries on defence side probabilies the plea of self defence of accused. In support of his submission learned counsel placed reliance on a number of decisions of Apex Court wherein it was held that on account of non-explanation of injuries of accused persons following inferences may be drawn : (A) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (b) that the witnesses who have denied the presence of injuries on the persons of the accused are lying on a most crucial point and therefore, their evidence is unreiable; and (c) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to draw doubt on the prosecution case. ( 38 ) IT is now well settled law that 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 doubtfull for its failure to explain the injuries on the accused, the question has to be answered on the facts and circumstances of that particular case. See Bhaba Nanda Sharma v. State of Assam AIR 1977 SC 2252 (1977 Cri. LJ 1930 ). ( 39 ) IN the decision in Onkar Singh v. State of U. P. AIR 1974 SC 1550 (1974 Cri. LJ 1015), it was held that the question as to what is the effect of non-explanation of injuries is a question of fact and not of law. ( 40 ) IT has been argued by learned counsel for the appellants that in the present case there is not even a whisper in the First Information Report regarding injuries of accused persons as to in what manner they were sustained by them and for the first time in the trial Court the prosecution introduced the theory that witnesses Narendra Singh and Surendra Singh used bamboos in self defence. It is true that in the First Information Report there is no mention as to in what manner accused persons sustained injuries or that Narendra Singh and Surendra Singh wielded bamboos in self-defence. It is true that in the First Information Report there is no mention as to in what manner accused persons sustained injuries or that Narendra Singh and Surendra Singh wielded bamboos in self-defence. it is of common knowledge that maker of a report while giving an account of a fight ordinarily feels a reluctance or hesitation in disclosing at that stage that he or men of his party also caused injuries to their assailants even thought it might have been justified in law of having done so in exercise of right of private defence. Therefore, on the mere ground that F. I. R. was silent regarding explanation of injuries on defence side, the evidence of prosecution witnesses including of a totally independent, natural and probable witness and the dying declaration cannot be thrown overboard. As we have already arrived at a finding that the incident had occurred in front of the house of Pratap Singh and he was attacked when he was unarmed, the accused party was the aggressor and therefore, they cannot be permitted to take shelter under the garb of exercise of right of private defence. In law there could not be any right of private defence to a person who himself is the aggressor. law does not protect such a person. Therefore, in the present case after reaching to the conclusion that the incident occurred in the front of the house of Pratap Singh and attack was initiated over him by the accused party, it is a fit case where it is not necessary to go into the question as to in what manner injuries on defence side were caused. It may be that after the deceased and other injured persons sustained injuries some more persons arrived at the scene of occurrence and a free fight took place. ( 41 ) ON a close scrutiny of evidence on record, we hold that the incident had occurred in front of the house of Gajraj Singh in the manner alleged by the prosecution and the accused party was the aggressor. In this view of the matter no right of private defence could be claimed by the accused persons and in the circumstances of the case prosecution was not bound to explain the injuries sustained on defence side. In this view of the matter no right of private defence could be claimed by the accused persons and in the circumstances of the case prosecution was not bound to explain the injuries sustained on defence side. ( 42 ) THE next question that arises for our consideration is whether participation of all the eleven appellants in the incident in question has been proved beyond doubt. ( 43 ) AS far as appellant Raja Ram is concerned it is the consistence case of the prosecution and has been established beyond doubt that this appellant had assaulted Pratap Singh on his head with kanta. It is also in the evidence of medical officer that this injury of Pratap Singh was sufficient tocause death in ordinary course of nature. He was also the person who challenged Pratap Singh saying that he was not to be spared. He was thus the principal offender. He is thus held guilty of the offence of murder of Pratap Singh. His conviction and sentence of imprisonment for life under S. 302 I. P. C. is maintained. ( 44 ) THE role assigned to appellant Dashrath Singh is that he made two attempts on Pratap Singh by firing upon him. The first shot did not hit him and the second mis-fired. The learned Session Judge has himself recorded the finding that the common object of unlawful assembly was merely to dissuade Pratap Singh from asserting his right over the khajiha and not to compel him to refrain from tethering his cattle in the said khajiha and with that end in view the accused were out to cause hurt or to use criminal force. It has also been held by the trial Court that none of the members of unlawful assembly other than accused Raja Ram and Dashrath had in their mind to kill Pratap Singh. With these findings the learned Session Judge has convicted Dashrath appellant also under S. 302 read with S. 34 of the Indian Penal Code. In our opinion conviction of appellant Dashrath under S. 302 read with S. 34 I. P. C. is not sustainable. There is no evidence, direct or indirect to show that Raja Ram had inflicted kanta blow on the head of Pratap Singh in furtherance of common intention shared by Dashrath appellant also. In our opinion conviction of appellant Dashrath under S. 302 read with S. 34 I. P. C. is not sustainable. There is no evidence, direct or indirect to show that Raja Ram had inflicted kanta blow on the head of Pratap Singh in furtherance of common intention shared by Dashrath appellant also. The learned Session Judge has himself observed, "it appears to me that common object of unlawful assembly was not to commit the murder of Pratap Singh and as such I am of the opinion that the murder was not committed nor the attempt on the life was made by the two accused in prosecution of the common object of unlawful assembly and they have to face the consequences individually". ( 45 ) DESPITE this finding, the learned Session Judge has recorded conviction of appellant Dashrath under S. 302 I. P. C. with the aid of S. 34 I. P. C. which in our opinion is not warranted in law as he could be convicted also only for his individual act i. e. attempt to kill Pratap Singh by opening fire upon him. He is therefore, held guilty under S. 307 I. P. C. simpliciter. ( 46 ) AS far as other appellants are concerned specific role has been attributed to Gyan Singh appellant of having caused incised injury to Narendra Singh with barchhi and incised injury which in the opinion of medical officer could be of barchhi was found on Narendra Singh. Participation of Gyan Singh is also established. ( 47 ) ALL other appellants are alleged to have caused blunt object injuries on Smt. Kesh Kali, Narendra Singh and Surendra Singh with lathi. Smt. Kesh Kali sustained only one blunt object injury and this injury is specifically attributed to accused appellant Ram Narain. His participation is also thus fully established. Leaving the blunt object injury of Smt. Kesh Kali apart it would be seen that on the person of Narendra Singh and Surendra Singh there were in all four blunt object injuries which according to the prosecution case were caused by accused persons who were armed with lathi, their number comes to seven. His participation is also thus fully established. Leaving the blunt object injury of Smt. Kesh Kali apart it would be seen that on the person of Narendra Singh and Surendra Singh there were in all four blunt object injuries which according to the prosecution case were caused by accused persons who were armed with lathi, their number comes to seven. Having regard to the number of blunt object injuries on the person of Surendra Singh and Narendra Singh and looking to the fact that deceased Pratap Singh in his dying declaration had named only seven persons namely; Raja Ram, Gyan Singh, Bhoora, Hari Lal, Ganga Prasad, Ram Narain and Ram Roop and the number of accused persons who are alleged to have lathi appears to have exaggerated names of appellants Khem Raj, Ranjit, Shyam Sunder and Sheo Nath were conspicuous by their absence in the dying declaration. In these circumstances it will be safe and prudent to give benefit of doubt to these four appellants. ( 48 ) FOR the above reasons and discussion, this appeal is partly allowed. The conviction and sentence of appellants Khemraj, Ranjit, Shyam Sunder and Sheo Nath are set aside and they are acquitted of the offences charged for. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. ( 49 ) SO far as appellant Raja Ram is concerned, his conviction and sentence of imprisonment for life under S. 302 I. P. C. are upheld. His conviction under S. 148 I. P. C. , under S. 323 read with S. 149 and under S. 324 read with S. 149 I. P. C. are also upheld but the sentences are reduced to two years R. I. under S. 148 I. P. C. , to six months R. I. under S. 323 read with S. 149 I. P. C. and six months R. I. under S. 324 read with S. 149 I. P. C. All the sentences shall run concurrently. ( 50 ) AS regards appellant Dashrath, hisconviction and sentence of imprisonment for life under S. 302 read with S. 34 I. P. C. are set aside and he is acquitted there for. He is convicted and sentenced to five years R. I. under S. 307 I. P. C. for making an attempt on the life of Pratap Singh. ( 50 ) AS regards appellant Dashrath, hisconviction and sentence of imprisonment for life under S. 302 read with S. 34 I. P. C. are set aside and he is acquitted there for. He is convicted and sentenced to five years R. I. under S. 307 I. P. C. for making an attempt on the life of Pratap Singh. He is further convicted and sentenced to two years R. I. uynder S. 148 I. P. C. , to six months R. I. under S. 323 read with S. 149 I. P. C. and six months R. I. under S. 324 read with S. 149 I. P. C. All the sentences shall run concurrently. . ( 51 ) SO far as appellant Gyan Singh is concerned, his conviction under S. 148 I. P. C. , under S. 324 read with S. 149 I. P. C. and under S. 323 read with S. 149 I. P. C. are maintained but his sentence of imprisonment under each count is reduced to a period already undergone, with a fine of Rs. 2000. 00 under S. 324/149 I. P. C. and a fine of Rs. 1000. 00 under S. 323/149, I. P. C. , In default of payment of fine, he shall undergo R. I. for six months on each count. ( 52 ) CONVICTION of rest of the appellants namely; Hari Lal, Bhoora, Ram Narain and Ram Roop under S. 147, 324/149 and 323/149 I. P. C. are maintained but their sentences are reduced to a period already undergone under each count with a fine of Rs. 2000. 00 each under S. 324/149 I. P. C. and with a fine of Rs. 1000. 00 each under S. 323/149 I. P. C. In default of payment of fine each of the said appellants shall undergo six months R. I. under each count. Appellants Raja Ram and Dashrath shall surrender to their bail bonds and shall be taken into custody forthwith and sent to jail to serve out their respective sentences as modified by this Court while other appellants are allowed two months time to deposit fine in the trial Court, failing which they shall be taken into custody and sent to jail to serve out their respective sentences. Order accordingly. .