S. K. AGARWAL, J. ( 1 ) THIS criminal appeal was filed by Durgi Singh, Latoori Singh, Suraj Singh, Sohan Singh and Arjun Singh against their conviction under Section 302 read with Section 149, I. P. C. and Section 323 read with Section 149, I. P. C. All of them were sentenced to life imprisonment and R. I. for 6 months respectively under the above two counts. Latoori Singh, appellant No. 2 and Suraj Singh, appellant No. 3, were further sentenced to one years R. I. under Section 147, I. P. C. as both of them were armed with Lathis. Appellant Sohan Singh and Arjun Singh were further convicted under Section 148, I. P. C. and sentenced to two years R. I. All the sentences of all the above said appellants were to run concurrently. ( 2 ) THE prosecution case, in short, is that deceased Shubrati and appellant Durgi Singh and their fields contiguously situate in village Karanpur, district Rampur. The fields of appellant Durgi Singh were adjacently posted towards West and South to the fields of the deceased. There was some dispute between the two parties on usurpation of a portion of this field. Some portion from the field of the appellant Durgi Singh was merged into his field by Shubrati deceased. This Act of the deceased also gave rise to some altercation in between them. On some previous date, it is alleged that appellant Durgi Singh had told the deceased, when he was asked to get the lands measured and demarcation done, that he will take possessionof the land surreptitiously included in his land by the deceased. He will not go for measurement. On the date of occurrence i. e. 4-8-1978 around 8. 00 a. m. , the deceased along with his two sons Shafi and Munshi was preparing the Mend (boundary wall) on their paddy field to prevent the flow of water from their field towards the field of appellant. They were possessed for this purpose with spade and Lathi. It is alleged that appellant Durgi Singh came there and required Shubrati and his sons not to raise any boundary by using mud without a Panchayat being held. He told to return with the Panchas. The victim and his sons paid no need to Durgi Singh and persisted in their act of raising boundary. It is alleged that appellant Durgi Singh came there and required Shubrati and his sons not to raise any boundary by using mud without a Panchayat being held. He told to return with the Panchas. The victim and his sons paid no need to Durgi Singh and persisted in their act of raising boundary. After about half an hour it is claimed that appellant Durgi Singh returned with other co-accused persons to the spot. Immediately on their arrival abuses were hurled by them upon the other side. It is asserted that appellant Suraj Singh and Latoor Singh attacked Munshi and Shafi with Lathis. Munshi and Shafi defended themselves with Lathi and spade but this had not caused any injuries to the accused side and when lathis did not yield any desired result, appellant Suraj Singh gave a exhortation to his associates in the following words "maaro GOLI YAHAN KYA DEKHTE HO" (shot them, what are you seeing here ). Upon the exhortation of Suraj Singh it is alleged that appellants Sohan Singh, Durgi Singh and Arjun Singh discharged 5 or 6 shots with their respective weapons. The gun discharge struck Shubrati and his sons Munshi and Shafi. Injured Munshi fell in that field but Shafi ran some distance and fell in the sugarcane field of Chhuttan. Hearing the gunshot report villagers from the neighbouring fields such as Amira, s/o Nathu, Munshi s/o Nanhey, Buddha s/o Ghulami, Har Sahai Singh, Chhuttan and Subrati, the informant (son-in-law of the deceased Shubrati) reached the plot and they claimed to have witnessed, the accused persons withdrew to safety and left the place. Durgi Singh and Sohan Singh were armed with guns whereas Arjun Singh was having the pistol. The other two appellants, as earlier stated, were armed with Lathis. Shubrati, son-in-law of the deceased, prepared the Written Report and leaving the injured at the spot he rushed to the police outpost Saifani and lodged the same there at about 9. 15 a. m. On the basis of this written report, a case was registered at the police outpost Saifani, which was a reporting out-post, at about 9. 14 a. m. One of the appellant, Suraj Singh s/o Durgi Singh has also got his report registered on 6-8-1978 at 2. 30 p. m. naming therein Subrati s/o Nabi, Munshi and Shafi s/o Subrati, Munshi s/o Nanhey, Amira s/o Nathu and Liyakat s/o Munshi. 14 a. m. One of the appellant, Suraj Singh s/o Durgi Singh has also got his report registered on 6-8-1978 at 2. 30 p. m. naming therein Subrati s/o Nabi, Munshi and Shafi s/o Subrati, Munshi s/o Nanhey, Amira s/o Nathu and Liyakat s/o Munshi. This clearly fortifies the presence of Amira s/o Nathu and Munshi s/o Nanhey who were nominated as eye-witnesses by the informant. Their presence is thus admitted to the defence also. The F. I. R. is Ex. Ka 1. The defence F. I. R. is Ex. Kha-4. After the arrival at the spot, the investigating officer claimed to have taken the victims along with him upto the Saifani Bus Stand and from there they were sent to Shahabad for medical check up where Munshi and Shafi were medically examined by Dr. M. M. Khan, P. W. 8, at primary health centre at 12. 30 and 1. 05 p. m. It is alleged that Shubrati in the course of examination breathed his last. Both the victims were taken to the hospital by Sri Ram Murti Singh, Constable No. 101 of P. S. Saifani. Injuries of Munshi are quoted as under :1. Gunshot wound 9 cm x 12. 4 cm bone deep, all flesh is absent and torn out from this wound over the rt. lower arm on post part, oblique, bleeding profusely. 2. Gunshot wound in an area of 21 cm x 10 cm over the rt. lower abd. On front aspect, bleeding is present from the wounds. ( 3 ) GUNSHOT wound 2 cm x 2 cm over the left forearm on lower 1/3 cm ventral aspect, three in no. ( 4 ) C/p pain all over the body and in abdomen but no mark of injury is seen. "3. The medical examination report reveals following gunshot injuries upon Shafi. 1. Gunshot wound over the left thumb terminal part is absent, bone is seen clearly, bleeding profusely. 2. Gunshot wounds over the left hands 3rd finger on lat. aspect two in nos. 3. Gunshot wound 14 cm x 7 cm bone deep over the front aspect of rt. Shoulder bleeding present. There is swelling over the shoulder. 4. The post-mortem on the person of deceased Shubrati was conducted at the district hospital, Moradabad by Dr. S. C. Srivastava, P. W. 6 on 5-8-78 at 3. 00 p. m. Following injuries were noticed by the doctor :"1. Shoulder bleeding present. There is swelling over the shoulder. 4. The post-mortem on the person of deceased Shubrati was conducted at the district hospital, Moradabad by Dr. S. C. Srivastava, P. W. 6 on 5-8-78 at 3. 00 p. m. Following injuries were noticed by the doctor :"1. Lacerated wound on the dorsal aspect of the right hand dorsal aspect margins oedematous and soft tissues lacerated with fracture of the bones of the proximal phalanx of each finger and the thumb of the right hand. All the injuries are in a straight line when the hand is opened. (1) 2. 5 cm x 1. 5 cm x bone deep on the first finger. (2) 2. 5 cm x 1. 75 cm x bone deep on the 2nd finger. (3) 2 cm x 1. 5 cm x bone deep on the ring (3) finger. (4) 2 cm x 1. 5 cm x bone deep on the little finger. (5) 2. 5 cm x 1. 75 cm x bone deep on the thumb dorsal aspect. Also extending on the phalanx aspect. 2. F. A. wound margins inverted, directed backwards (wound of entry) 2. 5 cm x 2 cm x cavity deep 3 cm above the Pubic Tubercle (Rt. side)3. F. A. wound margins inverted directed inwards x cavity deep x 1. 5 cm x 1 cm x 3 cm below and lateral to the injury No. (2) (wound of Entry ). 4. F. A. wound 2. 5 cm x 2 cm x Muscle deep margins inverted and 4 cms behind the injury No. (3) (wound of Entry ). ( 5 ) F. A. wound 2. 5 cm x 1. 5 cm x Muscle deep margins inverted and 3 cms below the injury No. (2) (wound of Entry ). "5. Cause of death according to the post-mortem report is shock and haemorrhage due to injuries noted in the report. ( 6 ) THE prosecution in support of its case has examined Shubrati, P. W. 1, son in law of the deceased, Munshi, P. W. 2 and Shafi, P. W. 4. So all these witnesses are in inter-se closely related. The other witness examined by the prosecution as independent eye-witness is P. W. 3, Ameera, son of Nathu. He too is a close relation. So all these witnesses are in inter-se closely related. The other witness examined by the prosecution as independent eye-witness is P. W. 3, Ameera, son of Nathu. He too is a close relation. Apart from the 4 eye-witnesses, Pyare Lal Sharma, P. W. 5, head constable had prepared the G. D. pertaining to the registration of the F. I. R. on 4-8-1978 at 9. 15 a. m. at police outpost. He had proved the check report as Ex. Ka 1. Copy of G. D. of the report is proved by him as Ex. Ka 2, P. W. 6 and P. W. 8 are the two medical officers. P. W. 6 Dr. S. C. Srivastava was responsible for conducting the postmortem examination on the person of deceased Shubrati, Dr. M. M. Khan, P. W. 8, held the medical examination of two injured witnesses Munshi and Shafi. Adan Prasad, P. W. 7, is the Sub-Inspector who had investigated the case from 4-8-1978 to 6-8-1978. The report according to him was registered in his presence. He started from the police station immediately within 15 minutes of the registration of the F. I. R. He claimed that he had left for the spot and reached there by 10. 00 a. m. He recorded the statement of the informant Shubrati and also the statement of the deceased, his dying declaration, at the time of medical examination. He was pronounced dead during the examination by doctor. This statement of the deceased recorded under Section 161, Cr. P. C. has been proved by this witness as Ex. Ka. 15. He had also recorded the statement of Munshi and Shafi Ahmad on the same day and inspected the spot and prepared the site map, Ex. Ka 5. He had also collected bloodstained and simple earth from the spots where the 3 injured persons were lying. These reports are Exs. Ka. 6, Ka. 7 and Ka. 8. Thereafter he converted the case under Section 302, I. P. C. on the receipt of memo from the hospital of the demise of Shubrati, son of Nathu. He prepared the inquest memo, Ex. Ka. 9. The other papers were prepared by him and contained the dead body of Shubrati in a sealed cloth. The dead body of Shubrati was sntt for post mortem to the Government Hospital, Moradabad, through Constables Jagpal Singh and Yashpal Singh. He prepared the inquest memo, Ex. Ka. 9. The other papers were prepared by him and contained the dead body of Shubrati in a sealed cloth. The dead body of Shubrati was sntt for post mortem to the Government Hospital, Moradabad, through Constables Jagpal Singh and Yashpal Singh. The reason for not sending the dead body to Rampur was given as closure or blockade of the road. The investigation according to him was taken over by the S. O. , P. S. Shahabad on 6-8-1978. ( 7 ) LEARNED counsel for the appellant has pointed out the following inherent weaknesses in the case of the prosecution : (i) that the details of the Maarpit is not clear from the evidence of the prosecution. According to him it is throughout a mystery. The design easily not discernible without the help of defence case, thereby the contention is that the defence version is more probable than the prosecution story. (ii) The prosecution had furnished a half-hearted explanation for the defence injuries. Rather initially they have raised their nerves to explain the defence injury but subsequently have completely resiled from that. (iii) The witnesses examined by the prosecution arehighly partisan and are closely related. It is further stated that the medical evidence is not furnishing sufficient corroboration to the prosecution story as alleged in the F. I. R. or in their 161 statements. In order to appreciate the abovesaid contentions and to examine the feasibility of the defence version, we have to examine the statement of these witnesses very carefully in the light of above submissions of the defence. It shall be expedient to refer to the version of the defence as well as their injuries at this stage itself. ( 8 ) THE version of the defence as contained in Ex. Kha. 4 is that Shubrati has a field contiguous to one of the fields of appellant Durgi Singh. It is surrounded from two sides by the field of Shubrati s/o Nabi and his son Munshi. His field is about 2 Bighas (Pakka ). Sugar cane crop was standing in that field. It is alleged by Sooraj, who lodged this F. I. R. on behalf of Durgi Singh that in this field of Shubrati, Munshi had included some portion into their field by destroying the Mend (divider wall ). They have started ploughing this portion of his land. Sugar cane crop was standing in that field. It is alleged by Sooraj, who lodged this F. I. R. on behalf of Durgi Singh that in this field of Shubrati, Munshi had included some portion into their field by destroying the Mend (divider wall ). They have started ploughing this portion of his land. They had got the measurement done through the Patwari. Before that Shubrati and his son Munshi and Shafi had sown the crops of sugar cane, Bazra and Maize. The appellants had raised the issue before the Pradhan who visited the spot and told Munshi and Shafi that they should not plough the fields of the appellants. Shubrati and his sons had taken seriously this interference by the Pradhan and reiterated that they will not accept his and Patwaris directions and they will plough and sow the land. They had also showed their intention to overturn the sugarcane standing in his field. When on 4th August, the date of occurrence, in the morning Latoor was trying to stop them from doing this, Shubrati, deceased, his sons Munshi and Shafi, Munshi son of Nanhey, Amira son of Nathu, Liyakat son of Munshi, all residents of their own village started belabouring Latoor Singh with Tabal, Ballam and Lathis. Shubrati was armed with Ballam, Shafi and Munshi were armed with Tabal and the other were armed with Lathis. When Latoor Singh intervened a Tabal blow was given by Shafi. Rest of the persons assaulted him on his legs. He fell down in the nearby field where has another son was present. He was looking after the standing crop. A licenced gun was also at that moment in his possession. Suraj Singh having heard the cries of his brother Latoor Singh rushed to the spot and as oon as he reached there he was surrounded by the abovesaid persons and Shubrati struck a Ballam blow which hit him on the left of his chest. Munshi and Shafi attacked with Tabal. He in order to save his own life and the life of his brother Latoor Singh fired one round in air. When the assailants exhibited a menacing attitude to kill him and his brother he again fired which struck one of them and they withdrew thereafter. The Ballam belonging to Shubrati also fell down there. He in order to save his own life and the life of his brother Latoor Singh fired one round in air. When the assailants exhibited a menacing attitude to kill him and his brother he again fired which struck one of them and they withdrew thereafter. The Ballam belonging to Shubrati also fell down there. Several witnesses including Pradhan of the village, and those who were grazing their cattles reached the spot of occurrence and had witnessed the incident. He had also surrendered his gun. This F. I. R. was registered on 6-8-1978 i. e. 2 days after the prosecution F. I. R. , Ex. Ka. 1. These two injured Latoor Singh and Suraj Singh were examined on 6-8-1978 at 5. 00 and 4. 45 p. m. by Dr. U. C. Srivastava, Medical Officer, District Hospital, Rampur. Following injuries were sustained by Latoor Singh. 1. Incised Septic wound 1 cm x 1/2 cm x 1/4 cm on the left side shoulder at the base of neck margins inflamed beads of pus present. Margins clear cut (wound was dressed with dry gauge ). 2. Contusion 5 cm x 2 cm on the right scapular region Bluish black. 3. Scabbed Abrasion 0. 5 cm x. 5 cm on the outer aspect of right knee joint. 4. Contusion 5 cm x 2 cm on the inner aspect upper part right leg. 5. Contusion 5 cm x 2 cm over inner aspect right foot kept U. O. Ad x-ray Bluish black. ( 9 ) FOLLOWING injuries were sustained by Suraj Singh. 1. Incised septic wound 1. 5 cm x 1/2 cm x 1/2 cm over left side chest margins inflamed clean cut beads of pus present with inflammation in an area of 3 cm x 3 cm around the wound 9 cm below and medially to the left nipple. ( 10 ) THESE injuries were found simple in nature except injury No. 5 of Latoor Singh which was kept under observation and X-ray was advised. The injury No. 1 of Latoor Singh was caused by sharp edged weapon. The other injuries were caused by blunt weapon. The only injury of Suraj Singh was caused by some sharp edged object. The duration in both the cases is noted as one and half day old. The injury No. 1 of Latoor Singh was caused by sharp edged weapon. The other injuries were caused by blunt weapon. The only injury of Suraj Singh was caused by some sharp edged object. The duration in both the cases is noted as one and half day old. ( 11 ) NOW taking up the statement of P. W. 1 Shubrati, son in law of deceased, it has been seriously challenged on the ground of probability of his presence at the spot. According to P. W. 1 he was living in the village of his father in law independently. Since he has stated clearly in paragraph 12 of his deposition that now he had settled in village Karanpur itself although originally he has his house in village Devari near Chandauli in district Moradabad. It is further contended that he had claimed that he was cutting the grass when the incident had taken place at the mend of Alla Mehar. This Mend of Alla Mehar is about 6-7 fields away from the field of his father in law. He had claimed that he had gone to fetch grass at about 8 a. m. In between according to him crops of Jwar and Sugarcane were standing which he claimed of only a Balist in height. He had admitted that normally in the month of incident the crops used to be of human height. Alla Mehar was not present in his field. He had further stated that his father in law had also reached his field at about 8. 00 a. m. Both he and his father in law resided in the different houses in the same village. Never any complaint against the appellants was made by his father in law to him. He denied that any measurement of the field of Durgi Singh was done by the Patwari nor any such measurement was done of the field of the deceased. He had admitted that Mend existed between the fields of appellant and the deceased. He has stated that Durgi Singh was asserting that Shubrati, the deceased, had broken the Mend and included that as well as a position of his land into his field but this was a false charge. He has admitted that in the field of Durgi Singh, sugar cane crop was standing and on both the sides of this field Sama and Baajra were sown. He has admitted that in the field of Durgi Singh, sugar cane crop was standing and on both the sides of this field Sama and Baajra were sown. He further denied Durgi Singhs charge as false that this Sama and Bajra was sown by Shubrati on a portion of his field. He had very clearly stated that 1/2 hour after reaching the field he had heard gun shot report. Five-six gun shot reports were heard by him. He had reached first near Shafi who fell in the field of Chhuttan. He had not enquired anything about the incident from him. He brought him to village. Then he corrected himself and said that investing officer had arrived at the field who brought the victims to the village. According to him, the investigating officer had arrived at the scene of occurrence after 1/2 hour of the incident. He further stated that investigating officer was called through the chowkidar. The police station is 1/2 mile from the place of occurrence. He claimed that he had gone to the police out-post some time after the departure of Chowkidar. He went there after the arrival of the Chowkidar. He came back to the spot with the investigating officer. Chowkidar also accompanied them. The investigating officer stayed at the spot for one and half hour and he went back to the police out-post without entering the village. The injured were taken by the investigating officer to the police station. The informant accompanied injured persons to the hospital. He did not go to police station Saifani. According to him Shubrati was also taken by the investigating officer along with other injured persons. He stated that Shubrati died in the hospital although in paragraph 5 he had very clearly stated that his father in law breathed his last while being taken to the hospital in the way. This improvement in his statement was purposive. He had admitted that he had not told father in law that he had got registered any report or not. He further stated that his father in law died at about 8. 00-8. 30 a. m. on the date of occurrence. He admitted that he had visited again the police out-post Saifani next day after his return from Sahabad then modified it that he had returned to the spot in the night along with investigating officer. It was about 8. 00-9. 00-8. 30 a. m. on the date of occurrence. He admitted that he had visited again the police out-post Saifani next day after his return from Sahabad then modified it that he had returned to the spot in the night along with investigating officer. It was about 8. 00-9. 00 p. m. and continued to stay there till the day break next morning. Thereafter he accompanied the dead body to Moradabad i. e. on 5th. He had further admitted in his deposition that when he reached police out-post Saifani in the night his thumb impressions were obtained on two sheets of paper. They were taken by the investigating officer. One of this thumb marked paper is report and he could not explain the other paper. He pleaded ignorance whether Latoor Singh and Suraj Singh had sustained injuries in this incident. Then he stated that they must have suffered injury but he had not seen their injury. According to him Suraj Singh was possessing a gun which he had discharged injuring members of his side. According to him the incident had occurred in the middle of the field. The field was already ploughed and was lying barren. According to him Babu Singh, Prem Raj Singh, Dallu Singh and Leeladhar Singh, resident of village Karanpur had arrived at the scene ofocurrence. Ali s/o Nathu, Munshi s/o Nanhey, Buddha s/o Gulab, Har Sahay s/o Bhim Sen, Chhuttan s/o Ballu came to the spot 4-5 minutes after the incident. ( 12 ) THUS from his statement it emerges out clearly that the deceased had died on the spot at about 8. 00-8. 30 a. m. Although in paragraph 5 of examination in chief this witness had stated that he died on way to hospital but in cross-examination in paragraph 8 this witness had very clearly stated that Shubrati had died at about 8. 00-8. 30 a. m. on the date of incident itself. We find this piece of his evidence probable and correct. Again a serious doubt in the registration of F. I. R. at 9. 15 a. m. is cast from the statement of this witness as stated by him in paragraphs 8 and 9. According to him the Chowkidar had gone to the police station first and the investigating officer arrived at the scene of occurrence by 9. Again a serious doubt in the registration of F. I. R. at 9. 15 a. m. is cast from the statement of this witness as stated by him in paragraphs 8 and 9. According to him the Chowkidar had gone to the police station first and the investigating officer arrived at the scene of occurrence by 9. 00 a. m. No doubt he claimed that he too had gone after the departure of Chowkidar but he claimed that he returned along with investigating officer to the spot and this fact is further corroborated by the fact that no statement of his was recorded by the investigating officer at the police station and the same was recorded at the spot. He further stated that he made no enquiries from Shafi or Shubrati. He did not disclose either to Shubrati or the other injured persons that he had already lodged the first information report. His statement that he had removed Shafi to the village, although subsequently he had tried to correct himself by saying that the Sub-Inspector had removed him from the spot are not natural. Had he been there it would have been his first endeavour to remove the 3 injured persons promptly for proper medical aid and attention but he had gone to the police out-post for registration of the F. I. R. without taking recourse to these formalities. This part of his conduct, being the son in law and brother in law of the deceased and the injured, appears to us most unnatural. The place of occurrence also is not corroborated from his statement. He claimed that incident had taken place in the middle of the field of the deceased but the site plan does not corroborate his version. Munshi was found lying at spot d, adjoining the mend of Durgi Singh and their field. According to the site plan Shubrati was lying at spot c which is also by the side of plot d. Shafi was lying in the field of Chhuttan at spot e. The distance has not been shown but as admitted this field of Chhuttan is some 5-7 fields from the place of occurrence but from the site plan it is apparent that the field of Chhuttan is intervened by the paddy field of Chhuttan and vegetable field of Shaukat, s/o Vazeera. Apparently it must be about some 60-70 paces away from the place where the two other injured were shown as lying. The incident according to the site map appears to have occurred at the Mend itself and not at any other place as alleged by this witness. Thus clearly our inference is that this witness was not present at the spot. On the scrutiny of his evidence we have no doubt in our mind that P. W. 1 Shubrati was not present at the spot. We ourselves have noticed that the probability of the first Information Report at 9. 15 a. m. is remote. We find that besides the facts and circumstances discussed above the first information report could not have been registered at 9. 15 a. m. but it was registered in the evening after the receipt of memo of demise of Shubrati from the hospital. P. W. 1 very clearly admits this fact that two papers were got signed from him by investigating officer at the time when he visited the police out-post at abut 8. 00-9. 00 p. m. One of them is the First Information Report. ( 13 ) A perusal of the G. D. entry, Ex. Ka 2, prepared at the police out-post indicates that the distance of the police out-post from the spot being 2 km. and no weapon except guns were mentioned therein. A perusal of the inquest memo which is Ex. Ka. 9 indicates that initially it shows 147/302/307. Section 302 and 148 were shown underneath the above Sections. There is over-writing in the time of initiation of inquest in inquest memo. It also shows only weapon of assault as gun. It further shows the dispute to be on the Mend. It shows that he had received memo from the hospital about the death of deceased at about 12. 55 p. m. After receiving this information Sub-Inspector had prepared the case. Thereafter the constable was sent to fetch the jild Panchayatnama (inquest memo) and other papers from the police station Shahabad. The inquest was prepared thereafter. It further shows that the investigating officer, P. W. 7, was present at the hospital Shahabad himself. 55 p. m. After receiving this information Sub-Inspector had prepared the case. Thereafter the constable was sent to fetch the jild Panchayatnama (inquest memo) and other papers from the police station Shahabad. The inquest was prepared thereafter. It further shows that the investigating officer, P. W. 7, was present at the hospital Shahabad himself. These discrepancies with regard to the addition of sections and interpolations in the inquest memo, mention of gun and no other weaponslike Lathis and Tamancha go a long way to show that there was no F. I. R. when inquest came to be prepared. Neither the investing officer nor the witness who claimed his presence in the hospital were cross-examined on this aspect. Memo from the hospital were not brought on the record by prosecution. Why it had not been brought on record is not explained at all. Non-examination of the Sub-Inspector who submitted charge-sheet is also of importance. P. W. 7 claimed that he accompanied the victims to the hospital Shahabad but subsequently he had stated that he was also present there and the deceased breathed his last in his presence at the hospital and thereafter he was handed over the memo by the medical officer concerned regarding the death. In the circumstances no nothing of this memo in the case diary or non-production of papers pertaining to conversion of the case viz. G. D. entry raise serious doubt in the assertion of the fact that the F. I. R. was lodged at 9. 15 a. m. by Shubrati. Neither P. W. 7 nor P. W. 5 had made any mention in their statements about the fact of Chowkidar at any point of time going to police station or out-post before the arrival of P. W. 1, informant. But this fact finds place in the statement of P. W. 1 very categorically and we do not find any valid reason to discard this fact that only Chowkidar went to call the police and police came along with him. We accept his statement that two papers were got signed from him. One of them is first information report. He did not know anything as to what happened to 2nd paper. ( 14 ) P. W. 2, Munshi, very clearly admitted, in paragraph 2, the existence of a dispute on the Mend between his father and Durgi Singh appellant. We accept his statement that two papers were got signed from him. One of them is first information report. He did not know anything as to what happened to 2nd paper. ( 14 ) P. W. 2, Munshi, very clearly admitted, in paragraph 2, the existence of a dispute on the Mend between his father and Durgi Singh appellant. According to him he and his brother Shafi came to the spot for setting the Mend. His father arrived at the scene of occurrence lateron. Durgi Singh came there. He told them that the Mend is not to be fixed in the manner as desired by them. He went away saying that he is going to call a Panchayat. About half an hour later Durgi Singh armed with a single barrel gun, Suraj Singh with a double barrel gun, Arjun Singh with a country made pistol, Latoor Singh and Sohan Singh armed with Lathis came there again. Latoor Singh and Sohan Singh initiated assault on him with Lathis. He took these blows on his spade. Shafi, his brother also warded of their lathis on his shape. Suraj Singh exhorted others to kill them. Upon this 5-6 fires were made on them. First fire hit him and thereafter more fires were made on them. One shot hit his brother who fell down about a furlong away in the field of Chhuttan. His father received two gun shot wounds, one on the arm and the other on his buttock. Shubrati, his brother-in-law had gone to lodge the report and he came back along with Sub-Inspector after about 3 quarter of an hour. The Sub-Inspector had taken the injured including him and his father to Safani and thereafter they were carried to Shahabad. His father died soon after reaching Shahabad. His brother and he were taken to Moradabad District Hospital. He stated that he did not know whether any accused had sustained any injury. He admitted that he is an accused in the cross case of this incident. He had stated in 161, Cr. P. C. that his father had come to the spot some time after their reaching there. He now state that he and his father reached there together but tried to explain it by saying that his father started from the house a little later. He admitted that they were fixing Mend in between his field and Durgi Singhs field. P. C. that his father had come to the spot some time after their reaching there. He now state that he and his father reached there together but tried to explain it by saying that his father started from the house a little later. He admitted that they were fixing Mend in between his field and Durgi Singhs field. He further stated that the Mend were broken by Durgi Singh earlier. They were preparing the Mend in order to clearly separate the two fields. In the meantime Durgi Singh came there and asked them not to fix any Mend. It shall be fixed after the Panchayat but despite it they continued to fix the Mend. Latoor Singh and Suraj Singh arrived at the scene of occurrence first. They plied lathis on them. He stated that he had not attacked them but had only received their blows on his spade. He further stated that his brother had plied a lathi. He had not caused any injury from his spade but it may be possible that it may have struck anyone of the accused as alleged by Suraj Singh and Latoor Singh but had denied that Shafi started plying Lathi first upon Suraj Singh and Latoor Singh. He evaded reply to his statement to the investigating officer that his father was empty handed. He admitted this statement. He admitted that this statement was correct and he had not stated to investigating officer that one of them was empty handed. According to him, incident of assault had taken place 10 steps from the Mend. The entire incident lasted 5-10 minutes. He stated that the fires were made from his field. From the place of firing the eastern Mend was clearly visible. Fires were discharged from the distance of 15 steps. Paddy (Dhaan) and Bajara crops were standing on some portion of his land and rest of it was lying vacant. Large quantity of blood fell in the field. Blood too fell in the field of Shaukat as a result of injuries on his brother. He was not able to stand up. He stated immediately on receiving gun shot injury he fell near the Mend of Shaukar. His brother Shafi did not receive any lathi injury. Lathi struck him on his head. Rest of lathi blows were stopped by him on his spade. His fire arm injury was bleeding. He was not able to stand up. He stated immediately on receiving gun shot injury he fell near the Mend of Shaukar. His brother Shafi did not receive any lathi injury. Lathi struck him on his head. Rest of lathi blows were stopped by him on his spade. His fire arm injury was bleeding. He admitted that his father had not suffered any lathi injury. He had suffered only a fire arm injury. His father was fired from a distance of 20 paces. All of them were close at that time. They were fixing Mend for the last about 1/2 an hour from the incident. When Durgi Singh asked him to fix the Mend in the presence of Panchas, they did not say anything but continued to fix that. He admitted clearly that Durgi Singh claimed that in fixing Mend they are including his land. He denied that before the incident Patwari and Pradhan of the village had tried to persuade them not to include any portion of Durgi Singhs land in their field. Further for about 2 minutes the lathis and spades were used between the two parties then the fire was resorted to by appellants. No conversation with the witnesses took place. They reached police station Saifani at about 11. 00 a. m. Statement of Shubrati was recorded by the investigating officer first on the spot then at the police station. He stated that his brother in law Shubrati might be there with them. He himself did not notice his presence at the time when the statement of his father was recorded by the investigating officer. His brother in law arrived at the spot after the firing. His brother in law was scrapping grass from the field of Prem Raj. He has denied the defence suggestion that they were trying to overturn sugarcane crop of Durgi Singh appellant in order to include some portion of his land in their field. Upon this Latoori Singh raised objections and they started assaulting him. Suraj Singh came there on hearing the alarm of Latoor Singh and they also surrounded him to assault. He fired his gun in their defence. He has denied the defence suggestion further that he and Shafi were armed with Tabal and Ballam and other associates had lathis who assaulted first Latoor Singh and then Suraj Singh. Suraj Singh came there on hearing the alarm of Latoor Singh and they also surrounded him to assault. He fired his gun in their defence. He has denied the defence suggestion further that he and Shafi were armed with Tabal and Ballam and other associates had lathis who assaulted first Latoor Singh and then Suraj Singh. This witness clearly has changed the version of scrapping the grass by P. W. 1. According to P. W. 1 he was scrapping grass on the field of Amar which is about 6-7 fields from this field of Prem Raj is adjoining the field of the appellants. So this witness had tried to place his brother in law, Shubrati close to his field so that his presence near the site may become acceptable. He is also trying to suppress the manner of assault is abundantly clear to us from his deposition. He is also suppressing the genesis of this incident. The dispute regarding the Mend was admitted to these witnesses. It is also admitted to him that Durgi Singh had objected to their fixing the Mend and he had also claimed that they are including his land. Despite his objections and his claim that he is calling panchas they continued to fix the Mend. He had further stated that initially Latoor Singh and Suraj Singh came to the spot. He did not state that other assailants also accompanied them. He had further admitted that his brother Shafi had plied lathi and admitted that in trying to save himself by spade he may have caused injuries to the defence side as well. He has very clearly stated that the witnesses had arrived at the scene of occurrence after 5-6 shots were fired specially P. W. 1. He had claimed that he had sustained single lathi injury on his head but his medical examination report belied his assertion. He had not sustained a single blunt weapon injury on any part of his body. There are only 3 gun shot injuries upon his person. One of the injury is on the lower right arm on posterior part. The other injury is on the right lower abdomen on front aspect with bleeding The third injury is on the left fore-arm on ventral aspect. A close examination of his injuries indicate that they could be the result of one shot. One of the injury is on the lower right arm on posterior part. The other injury is on the right lower abdomen on front aspect with bleeding The third injury is on the left fore-arm on ventral aspect. A close examination of his injuries indicate that they could be the result of one shot. No papers pertaining to treatment given to him were brought on record by the prosecution. Why they have been suppressed by the prosecution is beyond contemplation. He had clearly stated that he had suffered only one gun shot injury. Injuries clearly point out that they may be the result of a single shot and the firing must have been resorted to from a considerable distance. So in the absence of alleged injury on his head and his attempt to half heatedly explain the defence injuries and his effect to shift the place of his brother in law, Shubrati P. W. 1 to closer proximity heavily affect his credibility. Examining the injury of Shafi, his brother we find that he had sustained aninjury of the dimension of 14 x 7 cm on the front aspect of his shoulder. There are two gun shot injuries one on the left arm terminal part and the other gun shot wound was on the left in ventral aspect (three in number ). It is also true that he had not suffered any lathi injury on his person. Complete absence of any lathi injury upon these two injured witnesses further to suggest that no lathis were plied on them. The examination of post-mortem report clearly prove that deceased had sustained heavy blow by some blunt object upon his right hand which damged all his 5 fingers right from thumb to the little finger. P. W. 5, Dr. Srivastava had categorically stated that these injuries could not be caused by any fire arm, In his opinion they are blunt object injuries, therefore, their version with regard to the assault cannot be accepted on its face. The withnesses clearly are suppressing the truth from the Court and had presented a coloured version. ( 15 ) COMING to the statement of P. W. 4, his own brother it is admitted to this witness that he is also an accused in cross case launched by Suraj Singh, one of the appellant. The withnesses clearly are suppressing the truth from the Court and had presented a coloured version. ( 15 ) COMING to the statement of P. W. 4, his own brother it is admitted to this witness that he is also an accused in cross case launched by Suraj Singh, one of the appellant. According to him Durgi Singh had not told them that they are including his land by shifting the mend in his field. According to him he only stated that I am coming with the Panchas. They have not raised any objection and continued to fix the mend. There was no Mend between his field and Durgi Singhs field. He had levelled the charge that some portion of their land was in the field of Durgi Singh, therefore, they were fixing fresh Mend. He stated that they continued to fix Mend so that water from their field may not pass into other fields. They had not waited for arrival of Panchas. He stated that some of their land was usurped by the appellant. None of them had given any application for measurement but he denied that he had asked the patwari to tell him the boundaries of their field and of Durgi Singh. He admitted that he asked Durgi Singh about this. Accrding to him Durgi Singh came first and contrary to this his brother P. W. 2 stated that Latoor Singh came first and behind him Suraj Singh and others came there. He was read over his statement recorded under Section 161 Cr. P. C. which did not contain this fact. His reply was that he cannot say why it was not there. He denied that they assaulted any of the assailants but had admitted that they had plied the spade and lathi to ward of the attack. He further admitted that Durgi Singh had not warned them. At the outset it was only Latoor Singh and Suraj Singh who had started Maarpit. Only spade or lathi injury was caused upon Latoor Singh. Any injury was caused to Suraj Singh he pleaded ignorance about it. Fires were made all of a sudden immediately after lathis were plied just for a minute or two. Immediately on receiving the gun shot injuries others fell down and he ran away. According to him the field of Chhuttan is a Furlang away from the place of occurrence. Any injury was caused to Suraj Singh he pleaded ignorance about it. Fires were made all of a sudden immediately after lathis were plied just for a minute or two. Immediately on receiving the gun shot injuries others fell down and he ran away. According to him the field of Chhuttan is a Furlang away from the place of occurrence. In between field of Amar Singh was there. Blood from their injuries had fallen on the ground. He denied that they had plied their lathies and spades upon the assailants. He very clearly stated that he, his brother Munshi and his father had received two shots each. He further stated in his statement under Section 161 Cr. P. C. that he had told the investigating officer also this fact that they had received 2 shots each. He denied that he has told the investigating officer that the two injured had received single shot injury. When his statement under Section 161 was readover to him it was found that he had not stated therein that they received two shots each. The statement contained that the fire made by Suraj Singh struck Munshi and the other fire made by him struck his father. So according to his 161 Cr. P. C. statement two fires were made by Suraj Singh alone. He was unable to explain this anomaly. He admitted that he was never completely unconscious. His brother in law reached the spot first thereafter other witnesses came there within a minutes interval. Shubrati initially accompanied them to Primary Health Centre and later on also he was with them. His father did not fell unconscious after receiving gun shot injury. After his return Shubrati P. W. 1, had not informed them that he had got registered the F. I. R. Sub-Inspector who came there had also not told them that the F. I. R. has already been registered. ( 16 ) THUS from the statement of these two injured witnesses, so far as their presence at the spot is concerned and their sustaining injuries it cannot be doubted. The law regarding the injured witness is that injuries sustained by them establish their presence alone but it does not guarantee the truthfulness of their version. The lawenforced an obligation upon the prosecution to establish the following facts : (i) That the injured witnesses had sustained injuries in the incident in question. The law regarding the injured witness is that injuries sustained by them establish their presence alone but it does not guarantee the truthfulness of their version. The lawenforced an obligation upon the prosecution to establish the following facts : (i) That the injured witnesses had sustained injuries in the incident in question. (ii) That the statement made by the injured witnesses is truthful and is free from any embellishment, improvement or suppression of truth. ( 17 ) NOW the statements of the injured witnesses despite the fact that they had sustained injuries in the incident, Courts are under a duty to make a scrutiny whether the statement made by the said witness truthful or is embellished with falsehood. If the court arrives to a conclusion that the statement is far from being truthful, full of embellishment and an attempt is being made by the witnesses to suppress the truth i. e. the genesis of the occurrence then these witnesses despite being injured their testimony has to be very closely scrutinised to discern truth from falsehood. If such evidence is incapable of such exercise and truth is inseparable from falsehood, it can be discarded without any hesitation. If the evidence is only partly reliable then prosecution must provide independent corroboration. ( 18 ) ADHERING to the abovesaid principle we are of the opinion that the discussion made above, about the statement of these two injured witnesses, leave no room for any doubt that their statements are not free from embellishment and falsehood and the truth is inseverable. It cannot be denied that the prosecution side was fixing Mend. The statements of two witnesses P. W. 1 and P. W. 2 suffer from serious contradiction inas-much as P. W. 2 does not admit the fact that the mend was dismantled by the accused persons about a year ago and they were fixing it in order to stop the water from (sic) into the field of others. According to P. W. 2, they were trying to separate the two fields by fixation of Mend which in all probability indicates that earlier there were no Mend. P. W. 4 had stated that there was no Mend between their fields. They had also admitted that Durgi Singh had claimed that they were including his land by fixing Mend in his field. P. W. 4 had stated that there was no Mend between their fields. They had also admitted that Durgi Singh had claimed that they were including his land by fixing Mend in his field. The admission by P. W. 4, Shafi that they were fixing Mend to recover some portion of their land from the field of Durgi Singh are some of the facts which tilt the balance in favour of the defence and their case stands in these circumstances fully probabilised. ( 19 ) P. W. 4 has very clearly admitted quite contrary to the statement of his brother that the appellants had demolished the mend earlier and had included in their field some portion of their land. He stated there was no Mend. Even if it is taken as correct then this clearly indicates that the compainant side was out to settle the injustice meted out by appellants in the past by taking the law into their hands. If the injustice was done by the accused about a year ago they had no right to take the law into their hands and fix the mend according to their whims without any measurement by lawful authority. They could have taken recourse to law, for the simple reason that injustice if at all was committed about a year ago they could make a complaint to the Tehsildar and tehsildar would have directed the patwari to make the measurement of the disputed fields and get the boundary fixed there after actual spot measurement. They clearly admitted that no such course was adhered to by them. So from their own case the defence had the right to protect their property which was being taken away by prosecution side in the name of fixation of Mend. The complainant party will certainly not undertake this exercise without full prepartion to defend their act if any resistance is offered. This clearly proves that were doing this against the law. The witnesses tried to deny the injuries of the accused side. Then they evasively half admitted it. It also create serious doubt in their version. The statement of P. W. 4 tothe investigating officer that one fire made by Suraj Singh hit P. W. 4 one hit Munshi and his other associates fired on his father. The witnesses tried to deny the injuries of the accused side. Then they evasively half admitted it. It also create serious doubt in their version. The statement of P. W. 4 tothe investigating officer that one fire made by Suraj Singh hit P. W. 4 one hit Munshi and his other associates fired on his father. Specific words as occurred in the statement are "balki YAH HAI KI EK FIRE SURAJ SINGH KA MUJHE AUR MERE BHAI KO LAGE". This shows that there was not one person alone with fire arm. Apart from this his statement further creates serious doubt in the F. I. R. and its time of registration. Once their F. I. R. is held to be a doubtful document and it is found that it was lodged at 8. 00 - 9. 00 P. W. as admitted by P. W. 1 on 4-8-1979 no credence can be attached to their version. ( 20 ) THE conflict with the medical evidence is also an improtant aspect in this case. Insofar as the statement of Ameera is concerned he had also adhered to the statement made by P. Ws. 2 and 4. He had also admitted that he had come to the spot after hearing gun shot report. He denied any injury upon the person of two appellants Latoor Singh and Suraj Singh. He further denied that he had seen any blow of lathi or spade on these two. According to him he reached first and other witnesses arrived at the spot after him. He had stated that Munshi s/o Nanhey, Gulabi s/o Budha reached the spot along with him. He had further admitted that they had carried on cots the three injured persons to the police outpost. They stayed there for about half an hour. Nothing was written in their presence at the police out-post. He further stated that after half an hour he left the police station. The other friends stayed at police station for nearly 2 hours. He admitted that he held no talks with deceased Shubrati, nor the deceased had spoken to any person in his presence when the police reached the spot of occurrence. He was standing near the deceased and remained with him till he reached the police outpost Safani. He had stated that Shubrati was not unconscious. The police personnel stayed in the village for only half an hour. He was standing near the deceased and remained with him till he reached the police outpost Safani. He had stated that Shubrati was not unconscious. The police personnel stayed in the village for only half an hour. He further admitted that mend was prepared by Munshi and Shafi and Shubrati was standing there. Shafi was holding a lathi and Munshi and Shubrati had Ballam. This part of his statement was made in 161 statement. According to him the incident had occurred on the mend of the fields of Durgi Singh and Shubrati. According to him it was northern mend of Durgi Singh. This Mend was prepared by Munshi and Shafi. He had further made a statement that before this fixation of Mend by the above persons the Mend was standing at some other place. It was now fixed at a different place. The investigating officer had recorded his statement in the evening at the house of Shubrati. He claimed that he did not know when Shubrati died. P. W. 1 stated that he died at 8. 00 or 8. 30 A. M. He denied the defence case that he participated in the incident from the side of informant. They had tried to take forcible possession of some portion of Durgi Singhs field and were intending to over turn his sugarcane crop to usurp his land. He had also denied that they had assaulted Latoor or Suraj Singh because they resisted their attempt and Suraj appellant opened fire upon them in their self defence. His version is similar to that of P. W. 1 and P. W. 2. He from his own version reached the spot after hearing the gun shot report. His field is some 30-40 steps from the place of occurrence according to him but when his statement is critically examined we find that he has given a false distance. It is much more than 30- 40 steps. He has admitted that in between his field and field of Shubrati, in between some other fields were lying vacant. Therefore definitely more fields intervened between him and the place of incident. By the time he reached there as per the statement of P. W. 2 the assailants had already fled from the spot, therefore, witnesses other then two injured are not likely to witness the incident. Therefore definitely more fields intervened between him and the place of incident. By the time he reached there as per the statement of P. W. 2 the assailants had already fled from the spot, therefore, witnesses other then two injured are not likely to witness the incident. He is an accused in the cross case and closely related to the deceased being his first cousin. Despit his presence no statement of his was recorded by the Sub-Inspecor in the morning. It was recorded in the evening. ( 21 ) WE do not find any answer to the query why the Sub-Inspector accompanied the injured persons to the hospital, Shahabad and why even after receiving the memo of death, it had not been brought on record. Why the papers pertaining to the treatment of the two injured witnesses at district hospital, Moradabad were not brought on record and got proved. ( 22 ) APART from these facts the medical evidence also is inconsitstent with the prosecution story. Complete absence of any blunt weapon injury upon Munshi, P. W. 2 and Shafi, P. W. 4 is contrary to their initial version adhered to under Section 161 Cr. P. C. The presence of a severe blunt weapon injury on the hand of deceased Shubrati causing extensive damage to all the 5 fingers and the categorical statement of P. W. 5, Dr. S. C. Srivastava that this injury on the hand could not be caused by any fire arm are serious anomalies. We have ourselves examined these injuries and we are of the opinion that they could not be the result of any fire arm. It must have been caused by a blunt weapon. This further strengthens our conclusion drawn above. ( 23 ) FROM the discussion made above, we find that the prosecution strory is not reliable. Four witnesses examined in support of its version are unreliable for they appeared to have suppressed the truth from the Court. P. W. 1 Shubrati, in our opinion, was not present on the spot. F. I. ,r. was also not registered at his behest in the morning but was subsequently registered in the evening after 8. 00 - 9. 00 P. M. on the same day afterdue deliberation and consultation with police. Statement of the deceased recorded under Section 161 Cr. P. W. 1 Shubrati, in our opinion, was not present on the spot. F. I. ,r. was also not registered at his behest in the morning but was subsequently registered in the evening after 8. 00 - 9. 00 P. M. on the same day afterdue deliberation and consultation with police. Statement of the deceased recorded under Section 161 Cr. P. C. by investigating officer cannot be given, in the circumstances, much credence for the simple reason that Shubrati, P. W. 1 had made contradictory statement regarding death of deceased, his father in law. He initially stated that he died on way to hospital and later on changed it and said he died during medical examination at Primary Health Centre. P. W. 2 in the cross-examination admitted that he died about 8. 00 - 8. 30 A. M. In our opinion in all likelihood on the field. We are of the opinion that the probability that Shubrati may have died on the spot itself and the prosecution had concocted the story of carrying him to Shahabad hospital so that they may obtain a memo of his death. No death memo and injury report is brought on record to prove that any examination of his injuries was made at P. H. C. and any memo regarding it was received by the police. In the circumstances we are inclined to accept that the deceased must not have survived so long as around 12. 15 or 12. 45 P. M. after sustaining the gun shot injuries on the person. There are as many as 4 gun shot wounds upon the person of deceased. The prosecution has come up with a case that each of them had sustained two shots each. That version is belied by the post-mortem examination report of deceased Shubrati. He had sustained 4 gun shot injury in the form of injury Nos. 2 to 5. These injuries are cavity deep in the pubic tubercle region. A large quantity of blood must have fallen out. The small intestines were lacerated at several places in the lower part and 3 pallets were taken out from it. Heavy loss of blood must have accrued from his injuries. He was removed by the police from the spot. The police came to the spot admittedly at 10. 00 A. M. and left at 11. 45 with the injured persons. The small intestines were lacerated at several places in the lower part and 3 pallets were taken out from it. Heavy loss of blood must have accrued from his injuries. He was removed by the police from the spot. The police came to the spot admittedly at 10. 00 A. M. and left at 11. 45 with the injured persons. In the circumstances no credence can be attached to the statement of deceased Shubrati recorded under Section 161 Cr. P. C. It clearly appear to us an ingenuity of police. Why Rule 115 of the Police Regulation was not resorted to. Why it was not got signed by two independent witnesses. He must have noted the grievous nature of the injuries and death is likely to occur soon. If we accept the prosecution case that he died during medical examination then when this statement was recorded. Moreover why no injury report was produced. According to P. W. 8. he died before any medical examination. According to P. W. 4, statement of the deceased was twice recorded. Once at the spot and again at the police station. P. W. 1 has stated that chaukidar was sent to call the police. He, police and chaukidar reached the spot together. He had stated that Shubrati died at about 8. 00 or 8. 30 A. M. He has further admitted that his signatures on two papers were obtained at police station Safani at about 8. 00 or 9. 00 P. M. He remained at the police station throughout night. One of these two papers according to him is the written report. These circumstances leave no room for any doubt that prosecution has not come up with clean hands and is guilty of suppressing true genesis of the incident. ( 24 ) NOW coming to the case of the defence as earlier discussed the defence has come up with a case that the complainant side, Shubrati and his close relations had included by mischief, some portion of their land and they were trying to perfect that usurpation by fixing Mend anew. They had the right to protect their property by resisting the act of deceased and his sons. The assault was launched by the prosecution side when their act was resisted by them, upon Latoor Singh, who raised objecetion first. They had the right to protect their property by resisting the act of deceased and his sons. The assault was launched by the prosecution side when their act was resisted by them, upon Latoor Singh, who raised objecetion first. His brother Suraj Singh, who was present in other nearby field, reached the spot, he was also assaulted. He opened fire in his self defence and also in the defence of his brother Latoor Singh upon the complainant side. Their version as contained in F. I. R. may not be truthful cent per cent as it ought to but it definitely contain some truth which ultimately was also admitted to some extent by prosecution. In the circumstances their version cannot be thrown overboard. The only obligation of the defence is to probabilise their version by either examining the witnesses or from the evidence of the prosecution itself. From the evidence of the prosecution the burden by and large has been discharged by them. They have not to prove their case beyond any reasonable doubt as it rests upon the prosecution as required by the provisions of Section 101 of the Evidence Act. In our opinion the prosecutfon in this case has miserably failed to discharge that onus. The injuries sustained by Latoor Singh and Suraj Singh could not be said to be self suffered, self inflicted or suffered through friendly hands. They appear to us genuine. Though their examination took place after 2 days. Dr. U. C. Srivastava, D. W. 1, has proved their injuries. He had very clearly stated that these injuries could not be self inflicted. He had further stated that if the Ballam grazes past skin these injuries could not be caused. Theirinjuries are superficial in nature. yet they could not be self inflicted. In his examination in chief he had very clearly stated that probably these injuries were caused on 4-8-1978 at 8. 00 A. M. We further find that the injuries suffered on defence side have not been explained satisfactorily. Their report is also proved by D. W. 1. F. I. R. was lodged by them on 6-8-1978 at P. S. Civil Lines, district Rampur. The prosecution has not proved the result of the investigation of this F. I. R. on record. In the circumstances we do not find it possible to discard the defence version. Their report is also proved by D. W. 1. F. I. R. was lodged by them on 6-8-1978 at P. S. Civil Lines, district Rampur. The prosecution has not proved the result of the investigation of this F. I. R. on record. In the circumstances we do not find it possible to discard the defence version. We are not satisfied with the truthfulness of the prosecution version and from the prosecution version itself defence case seems to have been probabilised to a large extent and accordingly the accused persons deserve to get the benefit of doubt. ( 25 ) IN the result this appeal is allowed. The conviction of the appellants under Section 302/149/, 232/149 and 147 and 148 I. P. C. are hereby set aside. They are acquitted of the above said charges. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties bounds are discharged. Appeal allowed.