JUDGMENT 1. This appeal arises out of conviction of the appellants Deependra Singh, Yogendra Singh and deceased• appellant Narayan Singh for offence punishable under section 307/149, IPC sentenced to RI for 3 years with fine of Rs. 1,000/-, in default RI for 4 months. Appellants Virendra Singh and Ajeet Singh for offence punishable under section 307/149 of IPC sentenced to RI for 7 years with fine of Rs. 1,000/-, in default RI for 4 months. Appellants Rajendra Singh and Shivnath Singh for offence punishable under section 307/149 of IPC sentenced to RI for 5.years with fine of Rs. 1,000/-, in default RI for 4 months. 2. Out of 7 appellants, appellant Narayan Singh has expired during pendency of this appeal on 16.12.1996, therefore, his name has been deleted from the memo of appeal. 3. The Police of Police Station, Shujalpur, Distt. Shujalpur (M.P.) had filed a charge-sheet against the appellants, alleging that on 3.12.1987 in the night, PW/3 Rajendra Singh had gone to attend dinner at the house of PW 5 Kai]ash Babu, at the same time PW 2 Lakhan Singh, PW 8 Jujhar Singh went to have dinner at the house of one Bal Kishan and PW 9 Ramesh went in search of some labourers at Kila Mohalla Locality. 4. When PW 3 Rajendra Singh and PW 5 Kai lash Babu after enjoying dinner returning back to their houses, reached at about 9.30 p.m. in front of the house of appellants, all the appellants suddenly emerged with their dangerous weapons like sword, Farsi, Lohangi, lathi, etc. and surrounded Rajendra Singh and Kailash. Thereafter, appellants Virendra Singh and Ajeet Singh abusing Rajendra Singh, commented about compromise for the previous dispute and thereafter, appellants assaulted Rajendra Singh and Kailash. PW 2 Lakhan Singh and PW 8 Juzhar Singh were returning to their houses after taking dinner, they reached on the spot after hearing cry of Rajendra Singh, and witnessed the incident of assault upon Rajendra Singh by the appellants after forming unlawful assembly. Because of assault Rajendra Singh fell on the ground thereafter, the appellants had flown away from the place of incident. 5. PW 2 Lakhan Singh, PW 5 Kailash Singh, PW 8 Jujhar Singh took PW 3 Injured Rajendra Singh at Police Station where PW 5 Kailash, lodged the report Ex. P 3. 6. Because of assault Rajendra Singh fell on the ground thereafter, the appellants had flown away from the place of incident. 5. PW 2 Lakhan Singh, PW 5 Kailash Singh, PW 8 Jujhar Singh took PW 3 Injured Rajendra Singh at Police Station where PW 5 Kailash, lodged the report Ex. P 3. 6. Appellants have denied the charges framed under section 307/149 of IPC against them by the learned trial Court and their defence was that on the alleged date awl time of the incident, injured PW 3 Rajendra Singh and PW 5 Kailash with a view to pick up quarrel came in front of house of appellant Ajeet Singh Rana. They were abusing for not entering into compromise by Ajeet Singh for some previous dispute and thereafter they opened assault upon Ajeet Singh Rana and Deependra Singh, on alarm being raised by Deependra Singh, Narayan Singh, Shivnath Singh, other reached overthere and intervened the quarrel. More or less, the appellants have pleaded the case of right of self defence and alternatively accused persons have also submitted that they were falsely implicated. 7. Learned counsel for the appellants assailing the judgment of conviction submitted that appellants No.3 to 6 Rajendra Singh, Shivnath Singh and Yogendra Singh have been falsely implicated because their overt act regarding use of Lathi/stick for causing injury to the complainant party, has not been corroborated by medical evidence. He has also submitted that the appellant Ajeet Singh has acted in right of private defence on person of appellant Deependra Singh when the complainant party came to the house of Ajeet Singh and assaulted Deependra Singh. The prosecution has not explained the injuries on the person of Deependra Singh, received in the same incident for which counter case was registered for offence punishable under section 324/34 IPC against the complainant party vide Crime Case No. 290/87 Ex. D/7. It has also been contended by the counsel for appellants that the statements of prosecution witnesses are contradictory to their case diary statements as well as statements given by them. They have also contradicted to each other. Hence no implicit reliance could be placed on such kind of testimony. D/7. It has also been contended by the counsel for appellants that the statements of prosecution witnesses are contradictory to their case diary statements as well as statements given by them. They have also contradicted to each other. Hence no implicit reliance could be placed on such kind of testimony. Lastly, learned counsel for appellants have submitted that utmost offence under section 335 of IPC would be made out against the appellant Virendra Singh who had used sharp edged weapon under the grave and sudden provocation for causing grievous injuries to complainant Rajendra Singh: Learned counsel for the appellants placed reliance on judgments rep0I1ed in AIR 1999-SC-767 (Bhola Singh v. State of Punjab). 1997 Vol. 1 JLJ-298 (Sunil Gangrade v. State of M.P.), 1997 SCC (Criminal) 121 (Periasami and another v. State of Tamil Nadu) and AIR 1987 SC1289 (Seriyed Udayar v. State of Tamil Nadu) 8. Combatting these submissions learned panel lawyer for the State has submitted that the appellants came to the house of complainant party and were aggressor and caused as many as 14 injuries on the person of Rajendra Singh and 2 injuries to Kailash. They acted after forming unlawful assembly, their overt act has been fully conuborated by medical evidence and the prosecution has proved its case beyond all reasonable doubt. 9. Having heard the learned counsel for the parties and after perusal of entire record, this Court is of the opinion' that prosecution has failed to prove its case beyond all reasonable doubt by adducing cogent and reliable evidence and on the contrary appellants have substantiated their defence by preponderence of probabilities. 10. The prosecution has examined PW 2 Lakhan Singh, PW 3 Rajendra Singh, PW 5 Kailash, PW 8 Jujhar Singh and PW 9 Ramesh as eye witnesses of the incident, out of these witnesses, Rajendra Singh and Kailash were injured witnesses, PW 9 Ramesh has not supported the prosecution case and was declared hostile. 11. 10. The prosecution has examined PW 2 Lakhan Singh, PW 3 Rajendra Singh, PW 5 Kailash, PW 8 Jujhar Singh and PW 9 Ramesh as eye witnesses of the incident, out of these witnesses, Rajendra Singh and Kailash were injured witnesses, PW 9 Ramesh has not supported the prosecution case and was declared hostile. 11. The first contention of the counsel for the appellants does find support from the evidence on record that appellants No. 3 Rajendra Singh, No.4 Shivnath Singh, No.5 Deependra Singh and No.6 Y ogendra Singh were assigned role of use of lathi the hard and blunt object for causing injury to injured witness PW 3 Rajendra Singh but in the medical examination of this witness by PW 7 Shivnarayan Gupta, not a single injury caused by hard and blunt object, was found. All the injuries were caused by Sharp edged weapon and were mostly on hand and leg of Rajendra Singh. Eye witness PW 2 Lakhan Singh has categorically stated that the appellants No.4 to 6 and deceased appellant No.7 Narayan Singh were present, equipped with lathi and also used the same, whereas injured witness PW :1 Raiendra Singh has stated that Appellants Ajeet co 1 and Narayan Singh were' equipped with t of the appellants were having lathi in their hands and they all started assaulting him and witness PW 5 Kailash. PW 5 Kailash has also stated that appellant Ajeet Singh Rana and appellant Virendra Singh were using sword and farsi whereas other appellants were equipped with lathi. They all were assaulting PW 3 Rajendra Sisodiya and when he tried to rescue him, he too was assaulted by the appellants. PW 8 Jujhar Singh has stated that appellants Virendra Singh and Ajeet Singh both were equipped with sword and others were having lathi and assaulting Rajendra Singh Sisodiya but the medical evidence Ex. P/20 of PW 13 Rajendra Singh and medical report Ex. P128 of PW 5 Kailash as well as the statement of author of these reports PW 7 Dr. Gupta, are not revealing even a single scratch caused by hard and blunt object. On the persons of both the injured incised injuries were found. There was a fracture on right ulna bone of injured Rajendra Singh. According to medical opinion, except fracture, all injuries were simple in nature. Injuries of Kailash were also simple in nature. Gupta, are not revealing even a single scratch caused by hard and blunt object. On the persons of both the injured incised injuries were found. There was a fracture on right ulna bone of injured Rajendra Singh. According to medical opinion, except fracture, all injuries were simple in nature. Injuries of Kailash were also simple in nature. There is a clear conflict between ocular version given by the witnesses and the medical evidence. Hence, the benefit will go to the appellants who have been alleged for use of lathi in the said incident. It does not convince this Court that 5 persons will use lathi for assaulting the complainant party and none will receive even a single injury. This material conflict is establishing a fact either these appellants were not present on the scene of occurrence or did not take part in the alleged incident. In either way the benefit goes to the appellants. In the opinion of this Court these accused persons are entitled for acquittal only on this solitary ground. Offence under section 307 read with section 149 of IPC is not made out against these appellants because the incident had taken place in front of their house so their presence, if at all is accepted, was not unusual. Apart from this, mere presence on the spot would not make them liable with the help of section 149 IPC. 12. A general omnibus and vague allegation about presence and participation is not sufficient to hold them members of unlawful assembly whose common object was to attempt to commit murder of PW 3 Rajendra Singh. 13. It is pertinent to note here that for sustaining injury in the incident by witness PW 5 Kailash, there was no charge framed by the learned trial Court against the appellants, though the same ought to have been framed. (While parting with the judgment this Court feels it necessary to observe that the learned trial Court ought to have framed charge under section 324 read with section 149 of IPC against the accused persons for causing injury to witness PW 5 Kailash.) 14. In the present case, the learned trial Court has, failed to consider the statement of PW 3 Rajendra Singh Sisodiya which was recorded in the form of dying declaration during the course of investigation in its true perspective. Now this statement Ex. In the present case, the learned trial Court has, failed to consider the statement of PW 3 Rajendra Singh Sisodiya which was recorded in the form of dying declaration during the course of investigation in its true perspective. Now this statement Ex. D/4 can only be considered as a previous statement of this witness which was recorded by Executive Magistrate on 3.12.1987 in the night at 11 p.m. In this statement, this witness has disclosed that he and PW 5 Kailash were returning from the house of Ikkababu Dalal when they reached near house of Narayan Singh Rana they were attacked, from behin« by Shekhar Rana and Rajendra Singh Rana and one of his brother serving in PHE and father of Shekhar who was Patwari at Mangroul and elder brother of Patwari who puts on cap on his head, by axe and Farsi. The specific allegation for use of sword was against Patwari and use of Farsi was against Shekhar but Shekhar has not been arrested and impleaded as an accused person. In this statement only specific name of appellant No.3 Rajendra Singh is mentioned. According to this statement Ex. D/4, motive for the alleged assault/attack was because of previous ill-will, on account of quarrel occurred between injured Rajendra Singh Sisodiya and Shekhar, in college. Whereas according to FIR lodged by PW 5 Kailash Ex. P 3 as well as the statments of injured witnesses PW 3 Rajendra Singh Sisodiya, PW 5 Kailash, as they did not enter into compromise in some pending case in which appellants Rajendra Singh and Lakhan Singh were accu.sed. 15. FIR Ex. P 3 and Ex. D 4 are contradicting each other on so many material points i.e. the motive for alleged incident, presence and participation of accused persons equipped with lathi, sword, Farsi and other weapons, names of the appellants, etc. 16. As a matter of fact, Ex. D 4 is demolishing the whole prosecution case. This shows that after recording of this statement a different case has been concocted against appellants by loding FIR Ex. P 3 implicating as many as 7 persons by giving a different story and motive. Document D 4 has been specifically put to its author PW 3 and in para 15 of his deposition he has admitted recording of his statement by Executive Magistrat Shri Choudhari. He has also admitted that he was conscious at that time. P 3 implicating as many as 7 persons by giving a different story and motive. Document D 4 has been specifically put to its author PW 3 and in para 15 of his deposition he has admitted recording of his statement by Executive Magistrat Shri Choudhari. He has also admitted that he was conscious at that time. According to this witness he was knowing the names of appellants Narayan Singh,.Virendra Singh, Ajeet Singh Rana before the incident but the names of these appellants are not mentioned in his statement D 4 for which he has not given any explanation. PW 3 has stated in para 15 of his court statement that he was able to identify rest of accused persons• by face but during investigation no test identification parade was held for establishing their identity. This shows that this witness has identified or named these appellants for the first time in the Court. Thus, identification or naming the appellants for the first time in the Court again throws considerable amount of doubt about their presence and participation in the alleged incident. 17. PW 3 Rajendra and PW 5 Kailash have also admitted about their prosecution for offence under section 324 of IPC as a counter case. None of the prosecution witnesses had explained the injury on the person of appellant Deependra who has admittedly received the same in the same incident. This shows that the prosecution has not come up with a true story about the incident and witnesses have also not come up before the Court with clean hands. Whereas the appellants have taken the right of private defence, according to them complainant party came to their house in the night at about 10 p.m., on account of pendency of criminal case in which they did not enter into compromise, started filthy abuses and also opened assault causing injuries to Deependra Singh. Thereafter, appellant Ajeet Rana acted in right of private defence. 18. In the present case, in view of the aforesaid demonstration of prosecution evidence on record, this Court is of the opinion that first of all the prosecution has not been able to establish its case independently, beyond all reasonable doubt against the appellants. The story adduced by the prosecution does not appear to be true, hence the appellants are entitled to get the benefit of doubt. The story adduced by the prosecution does not appear to be true, hence the appellants are entitled to get the benefit of doubt. The Supreme Court in a case of Periasami and another v. State of Tamil Nadu (1997 SCC (Criminal) 121 held in paragraph 17 as under : "While dealing with the said alternative contention we have to bear in mind section 105 of the Evidence Act, 1872. A rule of burden of proof is prescribed therein that the burden is on the accused to prove the existence of circumstances bringing the case within any of the exceptions' 'and the Court shall presume the absence of such circumstances". The said rule does not whittle down the axiomatic rule off burden (indicated in section 101) that the prosecution must prove that the accused has committed the offence charged against. The traditional rule that it is for prosecution to prove the offence beyond reasonable doubt applies in all criminal cases except where any particular statute prescribes otherwise. The legal presumption created in section 105 with the words "the Court shall presume the absence of such circumstances" is not intended to displace the aforesaid traditional burden of the prosecution. It is only were the prosecution has proved its case with reasonable certainty that the Court can rest on the presumption regarding absence of circumstances bringing the case within any of the exceptions. This presumption helps the Court to determine on whom is the burden to prove facts necessary to attract the exception and an accused can discharge the burden by "preponderance• of probabilities" unlike the prosecution. But there is no presumption that an accused is the aggressor in every case of homicide. If there is any reasonable doubt, even from the prosecution evidence, that the aggressor in the occurrence was not the accused but would have been the deceased party, then benefit of that reasonable doubt has to be extended to the accused, no matter he did not adduce any evidence in that direction". 19. In the present case statement Ex. D4 recorded during the course of investigation in the form of dying declaration of injured witness PW 3 Rajendra Singh has knocked down the whole prosecution case which was built up and produced in the Court to believe against the appellants. 19. In the present case statement Ex. D4 recorded during the course of investigation in the form of dying declaration of injured witness PW 3 Rajendra Singh has knocked down the whole prosecution case which was built up and produced in the Court to believe against the appellants. The contradiction in ocular version and medical evidence as well as non-explanation of injury on the person of appellant Deependra Singh, this Court is of considered view that conviction of the appellants is not sustainable. They are entitled for acquittal. 20. In the result, appeal is allowed, appellants are acquitted of the charges levelled against them. Appellants are on bail, their bail bonds shall stand discharged.