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Madhya Pradesh High Court · body

2001 DIGILAW 541 (MP)

State of M. P. v. Sardar

2001-07-25

M.B.SHAH, S.N.VARIAVA

body2001
JUDGMENT Variava, J. -- 1. These two appeals by special leave are directed against order dated 28.6.1996 and 17.7.1996 passed by the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No. 490 of 1990. 2. Briefly stated the facts are as follows: It is the case or the prosecution that on 20.2.1987, PW 1 Yaqub was coming back from the forest near his Village Khokariya, under the jurisdiction of Police Station Narwar, District Ujjain, and on the way he was accosted by accused 4 Sardar. It is the case of the prosecution that Sardar caught hold of Yaqub, by his collar, slapped him, abused him and threatened him for lodging many reports against him; the brother of Yaqub, namely, Peera, and his uncle Ismile Hazi (PW 5) came on the spot, separated the two persons, took Yaqub to the brothers' house and forced Yaqub to remain in a room which was bolted from outside; that some time after this incident, at about 10 a.m., accused 4 Sardar armed with axe, accused 1 Ahmad Noor armed with saliya, accused 5 Daulat armed with saliya, accused 2 Usman armed with axe, accused 6 Sikander armed with saliya and accused 3 Rarnzu armed with stick came to the spot. These persons first assaulted Ismile and then proceeded towards the house of PW 2 Mubarik. The door of Mubarik's house was closed. Thereafter, the accused broke open the door with the axe entered the house and assaulted Mubarik, Yusuf, PW 4 and Ahmad Noor (since deceased). The three injured persons were taken by the police to the police Station. As Ahmad Noor's condition was serious, he was sent to the hospital. Yaqub lodged the report. FIR for the offences under section 307/452/147/148/149/294/506/323/324/294, IPC was lodged. Ahmad Noor then expired in the hospital. 3. All the accused persons viz. Sardar, Ahmad Noor, Daulat, Usman, Sikander and Ramzu denied the charge. By its judgment and order dated 7.11.1990, the trial Court acquitted accused Usman and Rarnzu. The trial Court convicted accused Ahmad Noor, Daulat and Sikander under section 302 read with section 34, IPC and sentenced them to suffer life imprisonment. Accused Sardar was convicted by the trial Court under section 302, IPC and was sentenced to suffer life imprisonment. By its judgment and order dated 7.11.1990, the trial Court acquitted accused Usman and Rarnzu. The trial Court convicted accused Ahmad Noor, Daulat and Sikander under section 302 read with section 34, IPC and sentenced them to suffer life imprisonment. Accused Sardar was convicted by the trial Court under section 302, IPC and was sentenced to suffer life imprisonment. Simultaneously, all the accused were held guilty of committing offence under section 307 read with section 34 IPC and were sentenced to three years' RI for attempt to murder Ismile, three years' RI for attempt to murder Yusuf and three years' RI for attempt to murder Mubarik. All the sentences were directed to run concurrently. 4. The State did not file any appeal against the acquittal of the two persons. Therefore, their acquittal has become final. The four persons who were convicted filed an appeal to the High Court. By the impugned judgment dated 28.6.1996, the High Court allowed the appeal of Sardar and acquitted him of all the charges. The High Court did so on the following reasoning: "Looking to the fact that door was broke open and 3 persons of the complainant party have sustained injuries, out of them Ahmad Noor died and, therefore, the number of persons who entered the house and caused injuries must have been more. As the door was broke open possibility of presence of axe in the hand of some of the accused is also prolable, but looking to the fact as two persons have been extended benefit which has finalised because of non-filing of appeal by the State, the person placed in a similar situation is entitled to the same benefit. In this view of the matter, Sardar also deserves same benefit as his participation becomes doubtful and does not stand corroborated from the medical evidence. He is entitled to benefit of reasonable doubt." 5, The High Court upheld the conviction of Ahmad Noor, Daular and Sikander under section 302 read with section 34 IPC and dismissed their appeal. Criminal Appeal No. 871 of 1997 has been filed by the State against that portion of the impugned judgment which acquits Sardar. Criminal Appeal No. 872 of 1997 has been filed by the other three persons whose conviction has been upheld by the High Court. 6. We have heard the counsel for the parties. 7. Mr. U.R. Lalit and Mr. Criminal Appeal No. 871 of 1997 has been filed by the State against that portion of the impugned judgment which acquits Sardar. Criminal Appeal No. 872 of 1997 has been filed by the other three persons whose conviction has been upheld by the High Court. 6. We have heard the counsel for the parties. 7. Mr. U.R. Lalit and Mr. K.N. Shukla, Senior Advocates have taken us through the evidence and the material on record. According to Mr. Lalit, there is no evidence of any independent witnesses, even though there would be many such witnesses as the incident had taken place during daytime in a village. According to Mr. Lalit, the prosecution witnesses are all interested persons belonging to the complainant group. He submitted that they were all biased witnesses who falsely deposed in order to falsely implicate the accused. According to him, these witnesses had contradicted themselves in material particulars. Learned counsel Mr. Lalit submitted that the investigation has been one-sided and that the accused have lodged FIR prior in time for the serious injuries caused to them and that the prosecution has not explained serious• injuries to 3 of the accused persons. Learned counsel submitted that the appeal filed by the State against acquittal of Sardar be dismissed and the appeal filed by the accused requires to be allowed and all be acquitted. 8. As against this, Mr. Shukla submitted that the prosecution has proved its case beyond reasonable doubt against all the accused. He submitted that in an incident like this, where two groups in a village fight, no independent person comes forth to give evidence or even make a statement. He points out the evidence where it has been deposed to by the police witnesses that nobody was willing to make any statement. Learned counsel Mr. Shukla submitted that the High Court has acquitted Sardar on erroneous reasoning. He submits that Sardar was the main accused who had accosted, threatened and beaten Yaqub, who had then beaten Ismile and who' had then gone along with other accused armed with axe' at Mubarik' shouse. He submits that the evidence clearly implicates Sardar and brings out the major role that he has played. It is his contention that the acquittal of Sardar cannot be maintained and the appeal filed by the State .requires to be allowed and the order of the trial Court convicting him be restored. He submits that the evidence clearly implicates Sardar and brings out the major role that he has played. It is his contention that the acquittal of Sardar cannot be maintained and the appeal filed by the State .requires to be allowed and the order of the trial Court convicting him be restored. He submitted that both the trial Court and High Court have on proper appreciation of facts rightly convicted the 3 accused and thus their appeal be dismissed. 9. At this stage, it must be mentioned that having heard the very persuasive arguments of Mr. Lalit, initially the Court felt that there may be force in his contentions. To do absolute justice to the matter, we reread the entire evidence and looked at the material on record. Let us now see what the evidence on record is and whether on the evidence and material on record it could be said that the prosecution had proved its case beyond a reasonable doubt. The evidence qua injuries to PW 5 Ismile, PW 2 Mubarik and PW 4. Yusuf and deceased Ahmad Noor and the accused as set out by the High Court is as under: "Dr Ravindra Shrivastava (PW 16) exmined Hazi Ismile, S/o Somaji on 20.2.1987 at about 1.45 p.m. and as per his report Ext. P-17 the following injuries w4re found: 1. Abrasion over the frontal region of scalp 1/2 x 1/2". 2. Right eye became black in colour, swollen upper lid, right eyebrow extended up to infraorbital margin of right eye and face. 3. Lacerated wound 6"x1" x 1/2" (bone-deep) on the frontal occipital region. Blood oozing from wound. 4. Abrasion 3/4" x 3/4" on the Pt. dorsal aspect of hand. 5. Contusion 1"x 1" around the abrasion. Dr Shrivastava also examined third injured Mubarik at about 1.30 the same day and as per report Ext. P-19 found the following injuries: 1. Abrasion 1/4" x 1/4" over the right forearm on lateral aspect 1" above the right elbow. 2. Contusion 2" x 2" around the abrasion, red in colour, elbow movements are restricted. 3. Contusion 2" x 2" upper 1/3rd of right forearm on lateral aspect. . 4. Contusion 1" x1" on the right wrist. Movements are restricted. 5. Abrasion 1" x 3/4" on the lower 1/3rd of left forearm. Dr S.P. Khare (PW 15) conducted X-ray examination of Yusuf vide X-ray plate Ext. 3. Contusion 2" x 2" upper 1/3rd of right forearm on lateral aspect. . 4. Contusion 1" x1" on the right wrist. Movements are restricted. 5. Abrasion 1" x 3/4" on the lower 1/3rd of left forearm. Dr S.P. Khare (PW 15) conducted X-ray examination of Yusuf vide X-ray plate Ext. P-13 and detected fracture of metacarpal of first right finger vide Ext. P-14. The X-ray examination of Mubarik, S/o Abbad was also conducted vide X-ray plate Ext. P-15 and the fracture of right ulna was detected vide Ext. P-16. X-ray of Ismile, S/o Somaji was also conducted but no fracture was detected. Ahmad Noor, S/o Abbas was directly taken to the hospital, as such, Dr A.K. Diwan (PW 17) examined him at about 2 p.m. and found the following injuries, vide Ext. P-20: 1. Contusion 2 cm in radius above right eye including upper lid. 2. Contusion (sic) cm in radius lateral to right eye. 3. Lacerated wound 5 mm x 2 mm x 2 mm posteriorly on the right parietal region. 4. Contused swelling allover left hand. Report of admission of Ahmad Noor was also sent to the police. As Ahmad Noor died, a request for post-mortem examination was made, as such, Dr V.K. Garg (PW 3) conducted autopsy on the body of Ahmad Noor and found as under: 1. Abrasion 'x' on sternal region. 2. The head was bandaged. On removal of the bandage, there was lacerated wound over parietal region. Right side 1/4" x" x skindeep. 3. Contusion underneath the LW 2" x2". 4. There was extracranial haematoma in fronto-parieto-temporal region right side 5" x5". 5. There was a depressed diminutive fracture of the skull, right side frontoparietal region extending from right parietal. 6. There was extradural haemorrhage present underneath the fracture, membranes and brain matter intact. There was collection of blood beneath the fractured portion of the skull. Dr Garg prepared report Ext. P-3. As per report Ahmad Noor died of haemprrhage and shock due to rupture of meningeal vessels and vessels under the scalp and depressed fracture of the skull." 10. It must be mentioned that during his deposition, Dr Garg deposed that the injury inflicted on the head of deceased Ahmad Noor could have been caused by hitting an axe from the back side. This opinion is corroborated by another doctor Dr Diwan (PW 17) during his deposition. 11. It must be mentioned that during his deposition, Dr Garg deposed that the injury inflicted on the head of deceased Ahmad Noor could have been caused by hitting an axe from the back side. This opinion is corroborated by another doctor Dr Diwan (PW 17) during his deposition. 11. In respect of injuries to the accused persons, Sikander, Ahmad Noor and Daulat, the High Court has set out as follows: "On 20.2.1987, at 10.50, Dr Ravindra Shrivastava (PW 16) examined accused Sikander and as per report Ext. D-7 he found the following injuries: 1. Lacerated wound 2" x 1/2" X 1/2" on the occipital region of scalp. 2. Abrasion 3/4" x 3/4" on the base of left little finger. 3. Abrasion 3/4" x 3/4" on the base of left ring finger. Dr Shrivastava on the same day, at 11.25 a.m. examined Ahmad Noor, S/o Mohammad and as per report Ext. D-8, he found the following injuries: 1. Contusion 1" x 1/4" on the lower half of left forearm on lateral aspect. 2. Lacerated wound 1" x" x" on the right parietal region of scalp. 3. Contusion 1/2" x 1/2 " on the medial aspect of left knee joint. 4. Abrasion 2" x1" on the chin of face. On 20.2.1987 Dr Laxminarain (DW 1) examined accused Daulat and vide report Ext. D/13-C, he found as follows: 1. Incised wound 8.5 cm x 1/2 x bone-deep on the back of right ear. 2. Incised wound 12.5 cm x 1 cm on middle of scalp. 3. Penetrating wound 5.5 cm x 2.5 cm on right shoulder. 4. Incised wound 1/5 cm x 1/4 cm on the left cheek. 5. Abrasion 7.5 cm x 3 cm on the outer part of shoulder." 12. In the light of the aforesaid injuries to the prosecution witnesses and to the accused, we would examine the evidence on record. The complainant Yaqub was examined as Prosecution Witness 1. He has deposed that in the morning' Sardar had caught him, beaten him with fists, abused him and threatened as to Now many reports he was lodging against him. His brother and uncle separated them and his brother took him to his house. Five minutes later, Sikander and Ahmad Noor (accused 2) started beating Hazi Ismile and after that they went away. Mr. Lalit pointed out that according to this witness only Sikander and Ahmad Noor had beaten Ismile. His brother and uncle separated them and his brother took him to his house. Five minutes later, Sikander and Ahmad Noor (accused 2) started beating Hazi Ismile and after that they went away. Mr. Lalit pointed out that according to this witness only Sikander and Ahmad Noor had beaten Ismile. Yaqub further deposed that 10 minutes later Usman and Sardar armed with axe, Daulat, Sikander and Ahmad Noor armed with saliya and Rarnzu armed with a lathi came out. They went to the house of Mubarik. pismantled the door, entered the house and started beating the persons inside the house. Usman and Sardar dealt axe-blows upon Ahmad Noor (deceased) and others also dealt blows on Ahmad Noor. He deposed that except for Mubarik and Ahmad Noor, nobody else was beaten. After assaulting them, the accused persons fled away. Learned counsel Mr. Lalit submits that though the witness had started by claiming that six persons came to the house of Mubarik, he now states that there were only four persons. According to learned counsel the prosecution had come to Court with a story of two incidents, namely, Sardar accosting Yaqub and then the attack in the house of Mubarik. He submitted that this witness and other witnesses have improved upon the case of the prosecution and deposed about three incidents, the third being the attack on Ismile. However, it is to be seen that at all stages the prosecution has been claiming 3 incidents viz., Sardar accosting Yaqub, attack on Ismile and then the incident in the house of Mubarik. Yaqub had also deposed that the Police came to the house and the Police had taken away the door after getting it unhinged. Learned counsel Mr. Lalit submits that there is no evidence of the Police having taken away the door after unhinging it. He submits that this also indicates that this witness is deposing falsely. Learned counsel points out that in his cross-examination, this witness has admitted that he is supposed to have seen all this peeping through a "chheka" from inside his brother's house. It is his submission that the statement of this witness, in cross-examination, that Ahmad Noor had been attacked with the off side of the hatchet is an improvement. Learned counsel points out that in his cross-examination, this witness has admitted that he is supposed to have seen all this peeping through a "chheka" from inside his brother's house. It is his submission that the statement of this witness, in cross-examination, that Ahmad Noor had been attacked with the off side of the hatchet is an improvement. He points out that this witness admits that he was so stating for the first time and that it had not been mentioned in his statements to the police that Ahmad Noor had been beaten with the off-side of the hatchet. Learned counsel points out that this witness admits that there is across-case against him and his group which is still pending in the Court. 13. PW 2 Mubarik at whose house the third incident took place has also given the same prosecution story. It is his say that the six accused persons had come to his house. Usman had axe, Daulat, Sikander and Ahmad Noor had saliya and Ramzu was having lathi. with him. He had closed the door after seeing them. Usman and Sardar had broken the door and entered the house, assaulted him and his brother Ahmad Noar (deceased). Sardar and other accused assaulted Ahmad Noor with the reverse side of axe. He was beaten by Sikander. 14. Complainant Yusuf, PW 4 stated that when he along with his brother Ahmad Noar, mother and sister was sitting in his house, all six accused came to the house and started assaulting his brother Ahmad Noar. Be has also deposed that Usman and Sardar assaulted Ahmad Noor with an axe and that they hit Ahmad Noar with the reverse side of the axe. Rarnzu, Sikander and Usman had beaten him with the axe and saliya and that again he was hit by the reverse side of the axe. He deposed that his brother Mubarik was beaten by Sikander and Daulat as well as Ahmad Noar. In cross-examination he reiterates that he has told the police that his brother Ahmad Noar was beaten with the reverse side of the axe. It is also brought out that between the complainant group and the group of accused persons there was a dispute over land. He has further admitted that his family had been outcasted by the villagers. He has denied the suggestion that his group was the aggressor. 15. It is also brought out that between the complainant group and the group of accused persons there was a dispute over land. He has further admitted that his family had been outcasted by the villagers. He has denied the suggestion that his group was the aggressor. 15. Next evidence is of Ismile (PW 5), who also supported the prosecution story. He deposed that on the date of incident, in the morning, Sardar had accosted Yaqub and asked him why he had lodged the reports against him. He separated both of them and that after 4 or 5 minutes, Sikandef, Ahmad Noar and Saidar had assaulted him. Mr. Lalit submits that now these persons are supposed to have assaulted Ismile, whereas according to Yaqub it was Sikander, Daulat and Ahmad Noor who had beaten Ismile. This witness deposed that the accused then went to the house of Abbas (which is the same as that of Mubarik) and Ahmad Noar, Daulat and Ramzu had assaulted him, Mubarik and Yusuf. In cross-examination, except far getting an honest admission that there was a cross-case against them which was also pending in the Court, the deposition of this witness has not been shaken. 16. The prosecution has also examined PW 18 Jamila. She has deposed that she was at home along with her brother Ahmad Noor and Yusuf and Mubarik was outside. All the accused had come to the house and immediately Mubarik came inside and closed the door. She deposed that the six accused broke open the door and assaulted her brother Ahmad Noor with lat his and axe. She admits that there is a dispute between the two groups over land. She also deposed that Ahmad Noor had been hit with the reverse side of the axe. In the cross-examination she reiterates that she had told the Police that Ahmad Noor had been assaulted with the reverse side of the axe. 17. The prosecution has further examined Head Constable Ramesh Chandra, PW 7 who came to the place of incident immediately on receipt of information about the dispute. He has deposed that in the village, with great• difficulty he learnt from the villagers, where the dispute took place. Having so learnt he went to the house of Mubarik. This itself is indicative of where the main incident took place. He has deposed that in the village, with great• difficulty he learnt from the villagers, where the dispute took place. Having so learnt he went to the house of Mubarik. This itself is indicative of where the main incident took place. Had it been on the street as claimed by the accused, he would have gone to that place. In his evidence-in-chief, he deposes that he found that the door of the house was flooded with blood. The doors were closed and at several places, handles (batte) of axe were lying. He has further deposed that he had reassured the inmates that the Police had come and then the inmates of the house opened the door from inside. He found Ahmad Noor lying unconscious in the house and Yusuf and Mubarik were lying injured inside the house. He also found Hazi Ismile lying injured upstairs in the house. 18. Learned counsel contended that this evidence clearly shows that the door of Mubarik's house was not broken. He submitted that this gave a lie to the story that the main incident took place in Mubarik's house. Much has been made by learned counsel about the fact that this witness has deposed that when he went to the house he had to persuade the inmates to open the door. He submitted that if the door had been broken, there was no question of the inmates being able to close the door thereafter. Learned counsel referred to the statement of this witness during cross-examination to the following effect: "Doors were in no way broken and separated. Their state was that, without opening them, one cannot enter." 19. It must, however, be noted that this witness has also stated that the door of the house was flooded with blood and that the other doors were closed. He also deposed that at several places handles of axe were lying and that the door of the house was stained with blood and was broken at several places by strokes of axe. The evidence of this witness has to be read as a whole. It conveys that the door shad not been completely separated from its hinges. This witness corroborates the fact that the door had been broke open at several places by the strokes of an axe. The evidence of this witness has to be read as a whole. It conveys that the door shad not been completely separated from its hinges. This witness corroborates the fact that the door had been broke open at several places by the strokes of an axe. Merely because the inmates managed to close the door which was opened by the accused, would not mean that earlier the door had not been broke open. This is evidence of an idependent witness, who was first on the scene after the incident. He has no axe to grind and is not interested in taking sides. Far from assisting the accused the evidence indicates that the main incident took place at the house of Mubarik. 20. PW 20 Amarnath Upadhyay, SHO was also examined. He has stated that on receiving the information he had gone to the spot, prepared a map of the spot on the basis of identification by the complainant Yaqub. He deposes about having seen' blood on the spot of the incident and having seized the blood-stained soil and ordinary soil. He further deposed about seizure of axe and saliya from the accused persons respectively and the arrest of the accused persons. In cross-examination, he admits that the accused had lodged a complaint on the same day and that he had also investigated that crime as three of the accused persons were also injured. He admits that accused Daulat and Sikander had remained in the hospital even when they were arrested as their injuries were not completely cured. He had also prepared a map of the spot where according to the accused the incident took place and had not found any blood on that spot. He stated that the spot indicated by the accused is a thoroughfare. It is his say that he made enquiries from the neighbours but nobody was ready to speak. 21. The prosecution has proved a site map which was marked as Ext. P-12 through the evidence of PW 14 Bhagirath Patwari. This site map showed that the door of Ahmad Noor's house had breaking marks on it. It must be mentioned that during cross-examination there has been virtually no challenge to the facts mentioned in this site map. 22. 21. The prosecution has proved a site map which was marked as Ext. P-12 through the evidence of PW 14 Bhagirath Patwari. This site map showed that the door of Ahmad Noor's house had breaking marks on it. It must be mentioned that during cross-examination there has been virtually no challenge to the facts mentioned in this site map. 22. In our view, the evidence of injured witnesses as well as eyewitnesses including that of PW 14 Bhagirath Patwari, who proved the site map, and PW 7 Head Constable Rarnesh Chandra, who visited the house on receipt of information, proves beyond reasonable doubt that the door of Mubarik's house was broke open. This would mean that the incident took place as narrated by the injured witnesses. Their testimony has not been affected by cross-examination nor is there any contradiction or omission on this aspect. Further, the suggestion made to the witnesses in the cross-examination would also indicate that the door in question was broken. It was suggested by the defence that the door was broken by the injured witnesses. In the cross-examination, Yaqub (PW 1) stated that it is wrong that we people had assaulted Sikander, Daulat and accused Ahmad Noor with stick and axe, in which Daulat's head was fractured; it is wrong that no door of Mubarik's house was broken nor was any assault done; it is wrong that Mubarik himself had broken the door of his house to save him from the report of these accused persons. Yusuf (PW 4) stated that it is wrong that we ourselves had broken the door of our house to save us from the responsibility of the assault of the accused persons; it is wrong that the incident had not taken place at our house, it occurred in the street which is in front of the house of Gokul. In this set of circumstances, there is no reason to disbelieve the prosecution evidence that the accused entered the house of Mubarik after breaking open the door and inflicted injuries on the prosecution witnesses. 23. Further, Ismile (PW 5) has stated that injuries were caused to him by accused Ahmad Noor, Daulat and Rarnzu and injuries to deceased Ahmad Noor were caused by accused Usman and Sardar. 23. Further, Ismile (PW 5) has stated that injuries were caused to him by accused Ahmad Noor, Daulat and Rarnzu and injuries to deceased Ahmad Noor were caused by accused Usman and Sardar. Yusuf (PW 4) has stated that injured Mubarik was attacked by accused Daulat, Sikander and Ahmad Noor and he himself was attacked by Rarnzu, Sikander and Usman and deceased Ahmad Noor was attacked by Usman and Sardar. As per the third injured witness Mubarik (PW 2), accused Sardar and all other accused assaulted . Ahmad Noor. he was assaulted by accused Sikander and Yusuf was assaulted by accused Ahmad Noor. 24. From the above evidence of all the injured witnesses, one thing is clear that all have stated that accused Sardar had assaulted Ahmad Noor. It is true that there is contradiction in naming the accused with regard to the assault on the injured witnesses. For assault and injury to self, they named different accused, but out of them PW 2 and PW 4 named accused Sikander and Ahmad Noor who assaulted and injured them. PW 5 stated that he was assaulted by Ahmad Noor, Daulat and Rarnzu. Question would be whether evidence of these injured witnesses should be discarded on some omissions or contradictions. Normally, omissions or contradictions which affect the basic structure of the prosecution case may be considered to be sufficient for giving benefit of doubt to the accused. From the facts narrated above, all the witnesses have named all the accused as assailants. On the basis of some contradictions, no doubt, benefit of doubt is given to two accused, but that would not mean that the basic structure of the prosecution version that the accused came at the house of Mubarik and assaulted the injured witnesses as well as the deceased is affected at all and it stands proved beyond reasonable doubt. Hence, in our view, after" considering the omissions and contradictions and after appreciating the entire evidence, if the Courts below have arrived at the conclusion that the prosecution has proved its case beyond reasonable doubt against some accused, it would not be a case for interference under Article 136 of the Constitution. 25. Hence, in our view, after" considering the omissions and contradictions and after appreciating the entire evidence, if the Courts below have arrived at the conclusion that the prosecution has proved its case beyond reasonable doubt against some accused, it would not be a case for interference under Article 136 of the Constitution. 25. The next contention of the learned counsel for the accused is that the prosecution has failed to explain the serious injuries caused to the accused and that the prosecution has suppressed the genesis of the incident and changed the scene of offence. It is proved on record that in the same incident the accused received serious injuries. Question is what is the effect of non-explanation of such injuries sustained by the accused In the present case, it has to be decided whether the accused were the aggressors as contended by the prosecution, and aggressors to such an extent that they went to the house of the deceased, broke the door and inflicted fatal injuries on Ahmad Noar and serious injuries on Mubarik, PW 2 and Yusuf, PW 4 and Ismile, PW 5. 26. Undisputedly, the incident took place. However, the defence version is that the incident took place at a different place, namely, near a public water tap. That defence is disbelieved by both the Courts below and as discussed hereinabove, in our view, there is no reason to take a different view from the view taken by the High Court as well as the Sessions Court. Then, the next question is -- what is the effect of non-explanation of injuries sustained by the accused at about the time of occurrence ? It is settled law that in case of non-explanation of injuries to the accused, the Court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) 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 throw doubt on the prosecution case. 27. 27. But, non-explanation of injuries may lose its importance where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood without much difficulty. It is also true that the reasonable inference which could be drawn in such cases is that the accused persons received the injuries during the course of occurrence and that some members of the prosecution party inflicted" such injuries. On that" basis again, the question would be whether the accused caused the injuries to the prosecution witnesses and the deceased by exercising right of private defence. If the prosecution establishes that the accused were the aggressors and went at the residence of the deceased or the prosecution witness and inflicted injuries on the-deceased and witnesses, there is no question of right of private defence to the accused. On the contrary, in such situation, the prosecution party would have the right of private defence. In Kashmiri Lal v. State of Punjab [ (1996) 10 SCC 471 ] the Court observed thus: "The law does not confer a right of self defence on a person who invites an attack on himself by his own attack on another. The principle of right of self-defence cannot legitimately be utilised as a shield to justify an act of aggression. A person who is unlawfully attacked has every right to counteract and attack upon his assailant and cause such injury as may be necessary to ward off the apprehended danger or threat." 28. Facts proved on record establish that the accused were the aggressors. The accused and the prosecution witnesses were' having longstanding dispute over the land. Because of previous incident of assaulting Yaqub, it is the prosecution story that all the six accused came at the scene of offence, first assaulted Ismile and at the house of Mubarik by breaking open the door which was closed, assaulted Ahmad Noor, Yusuf and Mubarik. At that stage, if someone from the prosecution party counter-attacked the assailants, there is no question of disbelieving the prosecution witnesses nor could any right of private defence to the accused be inferred. In such cases, there must be some evidence on record to probabilise such defence. In this view of the matter, we see no infirmity in the judgment of the trial Court or in the judgment .of the High Curt in convicting the appellants in Criminal Appeal No. 872 of 1997. In such cases, there must be some evidence on record to probabilise such defence. In this view of the matter, we see no infirmity in the judgment of the trial Court or in the judgment .of the High Curt in convicting the appellants in Criminal Appeal No. 872 of 1997. 29. As set out hereinabove, accused Sardar had been acquitted by the High. Court only on the ground that he should be given the same benefit of doubt which had been given to accused Usman and Rarnzu. The High Court also accepts the fact that the door was broken open and 3 persons of the complainant party were injured in the house. The High Court also notes that circumstances indicate presence of "more persons". The High Court also notes that as the door was broken open there was possibility of presence of axe in the hands of some persons. Yet the High Court acquits Sardar only on the ground that acquittal of two accused had become final. It is to be noted that the Sessions Court gave benefit of doubt to Usman and Ramzu on the basis of contradiction in deposition of witnesses, Ismile, Yusuf and Mubarik, with regard to the assault on the witnesses and also as there was no mark of injuries on their person. But this would not mean that there was any reason to discard the consistent evidence of prosecution witnesses with regard to the assault made by Sardar. The High Court also observed that according to Yaqub, Usman and Sardar both were armed with axe, but no axe injury, i.e., incised wound has been found on the body of any person of the complainant party. Mubarik has stated that Sardar caused injury to Ahmad Noor by blunt part of the axe, but this does not find place in the FIR. Ismile has also stated that Usman and Sardar had axe, but as observed earlier, no incised injury has been found on the body of any person from the complainant side. The High Court observed that Sardar allegedly caused injury by axe, but no incised injury has been found and, therefore, Sardar deserved the same benefit as his participation becomes doubtful and does not stand corroboration from the medical evidence. 30. In our view, this part of reasoning is entirely fallacious. The High Court observed that Sardar allegedly caused injury by axe, but no incised injury has been found and, therefore, Sardar deserved the same benefit as his participation becomes doubtful and does not stand corroboration from the medical evidence. 30. In our view, this part of reasoning is entirely fallacious. It is to be seen from the evidence on record that Sardar is the main aggressor. It is established beyond reasonable doubt that he was the person who first accosted Yaqub, caught hold of him, beat him and threatened him. Thereafter within a few minutes, he along with other accused came at the house of Mubarik, first assaulted. Ismile and thereafter broke open the door of the house of Mubarik which was closed and assaulted deceased Ahmad Noor as well as Mubarik and Yusuf. Merely because the trial Court has given benefit of doubt to Usman and Rarnzu, it would not mean that Sardar who is the main person, should also be given benefit of doubt despite the fact that all the witnesses have named him and stated that he was the aggressor and assaulter. It is true that incised injury is not found on the person of the injured witnesses or the deceased, but that would not be a ground for giving him benefit of doubt in the facts and circumstances of the present case because it would depend on whether the blunt side or the sharp-edged side of the axe was used, but considering the evidence of prosecution witnesses entirely, he is required to be convicted for the offence punishable under section 302 read with section 34 IPC and not only under section 302 IPC. 31. In the result, Criminal Appeal No. 871 of 1997 filed by the State is allowed. The judgment and order passed by the High Court acquitting the respondent is set aside and the order of the trial Court convicting the respondent for the offence punishable under section 302 read with section 34 is restored. He is directed to surrender within two weeks from today before the trial Court for undergoing the remaining part of his sentence. Criminal Appeal No. 872 of 1997 filed by the accused is dismissed.