Judgment Prabhat Kumar Sinha, J. 1. Whereas appellant Tarni Prasad Mahto (of criminal Appeal no. 506 of 1999) stands convicted under section 302 of the Indian Penal Code ("the Code", in short) and sentenced to undergo rigorous imprisonment for life, other nine appellants (of Criminal Appeal no. 462 of 1999) have been convicted for the same offence with the help of section 149 of the Code and similarly sentenced to imprisonment for life. Though appellants Arun Mahto and Musharu Mahto have further been convicted under section 323 of the Code but have not ben awarded separate sentence. 2. The prosecution case as emerging out of the first information report (Exhibit-1) recorded on the statement of P.W. 13, Ram Prakash Mahto about two hours after the occurrence is that on 19.8.1983 they and other members of his organization which according to P.W.13 was known as Pradesh Kisan Sabha, a branch of Indian Peoples Front were going to village Pagraha for a general meeting under leadership of deceased Bhuneshwar Mahto and when they reached on the road situated west to the house of appellant Deepak Mahto, they saw the appellants variously armed along with some unknown whereafter Deepak Mahto exhorted others to kill the informant side at which Tarni Mahto fired from his country made pistol hitting the chest of Bhuneshwar Mahto who died instantly. Allegedly Musharu Mahto gave three bhala blows to Akbar Mian and Arun Mahto assaulted Ram Swaroop Mahto with the butt of rifle. Witnesses were also named. It was alleged that bone of contention was distribution of lands beyond ceiling belonging to the landlords as well the agitation launched under leadership of Bhuneshwar Mahto for minimum wages. 3. In defence witnesses have also been examined and it has been claimed that appellant Deepak Kumar (also named as Deepak Mahto) being a student of a college at Samastipur on that date was in the college and in the evening had attended the medical shop of his brother also situated at Samastipur. 3. In defence witnesses have also been examined and it has been claimed that appellant Deepak Kumar (also named as Deepak Mahto) being a student of a college at Samastipur on that date was in the college and in the evening had attended the medical shop of his brother also situated at Samastipur. General defence is that on the date of occurrence when the people of accused side, including Ram Sagar Mahto, Tarni Mahto and Ram Dayal were sitting under a tree at Bhagwati Asthan because of hot weather, they saw the procession coming when one Irfan from the informant side shouted that those very people (accused) were witnesses in the case filed by the Circle Officer, and exhorted his colleagues to murder them at which they all assaulted the aforesaid three accused, Bhuneshwar Mahto assaulted Ram Sagar with bhala hitting in thigh, and others assaulted Ram Dayal and Tarni Mahto by lathi and other dangerous weapons, but on hulla the people of village assembled there and they started retaliating which resulted in stampede during which Irfan Mian fired which was the shot that had hit Bhuneshwar. The defence is that aforesaid episode was taken help of to implicate Deepak Kumar, his brother and others. This was the suggestion given to the informant and similarly other witnesses were also suggested. The witnesses who have taken the witness stand as eye-witnesses are P.W. 2 Keshav Mahto, P.W. 3 Dev Shankar Sah, PW. 4 Suresh Yadav P.W. 6 Akbar Mian, P.W. 7 Ram Swaroop Mahto, last two claimed to be injured, and P.W. 10 Irfan Mian, besides the informant, P.W. 13. Dr. Navin Kumar Verma had conducted autopsy upon the dead body who is P.W. 14. The other witnesses were either formal or were tendered for cross-examination out of whom worth mention is evidence P.W. 15, Ram Bateshwar Mahto who though was tendered, but during cross-examination he appears to have supported the defence version. Another notable fact is that the Investigating Police Officer in the case has not been examined. 4. Different sets of counsel represented different accused but main arguments came from Sri Suraj Narain Prasad Sinha, Advocate and Sri P.N. Pandey, Advocate. The learned counsel have raised a number of points in attempt to prick the balloon which is the prosecution case. But before that, a glance over the evidence of supporting witnesses. 5. 4. Different sets of counsel represented different accused but main arguments came from Sri Suraj Narain Prasad Sinha, Advocate and Sri P.N. Pandey, Advocate. The learned counsel have raised a number of points in attempt to prick the balloon which is the prosecution case. But before that, a glance over the evidence of supporting witnesses. 5. The eye-witnesses have supported that while the procession with the informant side was going to attend the meeting at another village and when it reached Maldah village, near Bhagwati Asthan they saw the appellants and others variously armed, whereafter Deepak Mahto exhorted for assault and then Tarni Mahto fired at the chest of Bhuneshwar Mahto, killing him and Musharu Mahto thereafter hit Akbar Mian with Bhala at his rib cage (Panjara) and Arun hit on the head of Ram Swarup with the butt of rifle. Admission has also come from the witnesses about filing of a counter-case for an occurrence that took place on that date, at about the same time at Bhagwati Asthan. It also has come in the evidence of witnesses that the Circle Officer of the Block, about a week back has filed a criminal case against some member of the informant side. Some of the evidence in that regard may be seen. P.W. 4 admitted, (paragraph 2) that he also was accused in the counter-case and also admitted that Circle Officer had filed a case against them because of ceiling disputes in which the deceased and witnesses, Irfan Mian and Ram Prakash Mahto were also accused and Ram Sagar, Ram Dayal and Tarni Mahto were witnesses. These three persons are said to be the injured in the counter-case. This witness claimed that the case was false. P.W. 10 (paragraph 5) also admitted that Circle Officer of Haranpur Anchal had filed a false case against him and others including the deceased, before this occurrence in which Ram Dayal and others were witnesses. P.W. 13, the informant, while admitting about the counter-case denied, relating to the case by Circle Officer, that they had assaulted him claiming that the case by Circle Officer was filed in collusion with Zamindars. 6. P.W. 13, the informant, while admitting about the counter-case denied, relating to the case by Circle Officer, that they had assaulted him claiming that the case by Circle Officer was filed in collusion with Zamindars. 6. First argument on behalf of the appellants was that in first information report a particular place of occurrence was claimed but all the prosecution witnesses including the informant changed that and fixed the place of occurrence at the place that was claimed to be the place of occurrence in the counter-case. Before appraising this point some points of the counter-case which are on record, and the topography of and around the place of occurrence may be seen. 7. Exhibit-A is the first information report in the counter-case in which fardbeyan was recorded on the next date at 6.00 P.M. for occurrence dated 19.8.1983 which allegedly took place at 4.30 P.M. The informant is appellant Ram Sagar Mahto which was recorded by one Assistant Sub-Inspector at the Samastipur Main outdoor Hospital. Main allegations are that on the date of occurrence when he, Tarni Mahto and others were sitting under a tree at Dihwar Asthan (another name of Bhagwati Asthan, as per P.W. 15-paragraph 2) they saw an unlawful assembly of forty to fifty persons variously armed, including country made gun, coming raising slogans and abusing the Kisans. The first information report has named the deceased and others including witnesses to be members of that assembly. In Exhibit-A it was alleged that at Dihwar Asthan lrfan exhorted to kill the witnesses in the case of Circle Officer at which the members of unlawful assembly started assaulting, with deceased Bhuneshwar Mahto hitting Ram Sagar in the thigh with bhala, and Ram Dayal Mahto and Tarni Mahto were also assaulted at which people of village assembled and started confronting the members of the assembly in which stampede Irfan Mian fired a shot which hit someone. Thereafter, villagers brought them to a nearby hospital but the Naxalites threatened the doctors at which they were somehow brought to Samastipur hospital. It was alleged that a few days back the Naxalites had committed offence against the Circle Officer in which they had given evidence against the Naxals. 8. Thereafter, villagers brought them to a nearby hospital but the Naxalites threatened the doctors at which they were somehow brought to Samastipur hospital. It was alleged that a few days back the Naxalites had committed offence against the Circle Officer in which they had given evidence against the Naxals. 8. In so far as the defence version is concerned, as already seen, witnesses had admitted institution of the counter-case as also a case filed earlier by the Circle Officer against some of the members of informant side. P.W. 2 has admitted (paragraph 6) that he also was accused in the counter-case and that Tarni, Ram Sagar and Ram Dayai (appellants) were also injured on that date, in the same occurrence. This witness further admitted in cross-examination that they were injured near the Peepal tree of Bhagwati Asthan. He also admitted that those injured were sitting under the shadow of the tree. P.W. 15 said that an occurrence had taken place in which accused persons (the appellants) were also assaulted to which he was eyewitness. He said that out of the members of the assembly who were assaulting the accused persons, he had identified Irfan Mian who had fired upon the appellants which hit Bhuneshwar Mahto, a member of the same assembly. He also admitted that occurrence had taken place at Bhagwati Asthan (Dihawar Asthan) beneath the Peepal-tree. He said that forty to fifty persons variously armed, including sharp cutting weapons, were in the mob out of whom he identified some whom he named, also claiming that Bhuneshwar had assaulted Ram Sagar by Bhala and two others were also assaulted by the mob. He also claimed that his house and field were near the place of occurrence and said that on hulla the people from the house of Deepak Mahto also had come. He also said that near that religious place there was a road going north to south, having houses at the both flanks. 9. Therefore, it would appear that these two witnesses have also supported the case of defence including about place of occurrence. He also said that near that religious place there was a road going north to south, having houses at the both flanks. 9. Therefore, it would appear that these two witnesses have also supported the case of defence including about place of occurrence. The learned lower court has noticed the evidence of P.W. 15 and came to the conclusion that this witness had gone in collusion with the defence which conclusion may be with some justification but the fact remains that he was produced as a witness by the prosecution which chose to tender him for cross-examination for which there is no provision under the Evidence Act, instead of examining him in-chief and if the witness had turned hostile and had gone against his previous statement under section 161 of the Code of Criminal Procedure, then to cross-examine him and to draw his attention to his previous statement. The prosecution not having done that, nor even seeking re-examination of the witness for that purpose, the evidence of this witness can not be brushed aside simply by claiming, when he did not support the prosecution case, that he was a witness in "collusion with the defence when what was his statement before the police has not been brought on the record. 10. Now coming with the description of the place of occurrence, the Investigating Police Officer not having been examined, that has to be ascertained from the evidence of witnesses. P.W: 2 said (paragraph 3) that Bhagwati Asthan was situated about 150 yards to the south of the house of Deepak Mahto, many houses standing in between. This witness also said that the road had turned towards south after two houses to the house of the Dhanuk Lai and at that juncture was the house of Deepak Mahto, to the west of the north-south road. He also said that the Peepal tree was situated to the east of Mandap of Bhagwati Asthan at a distance of ten to twelve yards but all came within the precincts of Bhagwati Asthan. P.W. 10 said (paragraph 5) that from the house of Deepak Mahto the Bhagwati Asthan was not visible. P.W. 6 said (paragraph 4) that ten to twelve yards towards west of the road (going north to south) was the Bhagwati Asthan. P.W. 10 said (paragraph 5) that from the house of Deepak Mahto the Bhagwati Asthan was not visible. P.W. 6 said (paragraph 4) that ten to twelve yards towards west of the road (going north to south) was the Bhagwati Asthan. Obviously when the Bhagwati Asthan was ten to twelve yards away from the main road, towards west that would not be visible from the house or gate of the house of Deepak Mahto which is said to be on the north-south road at its northern end. P.W. 3, has said that the procession had started from the Muslim Toli of Maldah village which was one hundred yards to the east of the house of Deepak Mahto. P.W. 7 has also said (paragraph 6) that the procession had started from Mian Toli and that they had reached village Maldah at about 2.30 P.M. He said that the procession had crossed through the road situated in front of the house of Deepak Mahto. 11. Here it may be noticed that all the eye-witnesses have claimed that the occurrence had taken place at and near Bhagwati Asthan, which according to a witness was about 150 yards away from the house of Deepak Mahto. Even admitting that this distance was not measured with the help of tape but this gives a fair idea that the house of Deepak Mahto was away from Bhagwati Asthan and, as per the prosecution evidence, Bhagwati Asthan was not visible from the house or gate of Deepak Mahto. P.W. 6 said (paragraph 8) that for the first time he saw Deepak Mahto when he was about ten laggas away towards south, one lagga measuring about 6 cubits. He said that he had seen other members of the attacking party from that distance, while he was about 60 cubits away. 150 yards would consist of 250 to 300 cubits, as was pointed out in the arguments. According to P.W. 7 while they were about eight to ten steps away, Deepak Mahto had ordered for assault, from Bhagwati Asthan. The distance of two places can also be seen from the evidence of P.W. 10 (paragraph 10) who said that from the place where for the first time they saw the members of other party at Bhagwati Asthan, upto the house of Deepak Mahto there were houses at both flank of the road, seventy to seventy five persons living in between. 12. As already seen, all the eyewitnesses have described the Bhagwati Asthan as the place of occurrence which goes contrary to the statement made in the first information report. No witness has come forward to say that they had seen the appellant when they had reached near the house of Deepak Mahto while passing the road in front of his house. The clear assertion in the first information report is that they had seen the appellants and others while they were crossing the house of Deepak Mahto at which time Deepak Mahto ordered to kill, and the assault started. The first information report clearly gives alternative place of occurrence near the house of Deepak Mahto. The informant himself in his evidence when confronted with his assertion in the first information report as the place of occurrence, disclaimed that statement in the first information report (paragraph 18) and claimed in cross-examination that he had stated in the first information report as well in his further statement that when they had reached near Bhagwati Asthan they had seen the accused persons with weapons. He denied having stated that when they reached on road to the east of house of Deepak Mahto they had seen the appellants and others. 13. First information report is not a piece of substantive evidence. This can be used either to confirm or contradict its maker. But its importance cannot be undermined. This first information report was lodged just about two houses after the occurrence had taken place when the details of the occurrence must have been fresh in the mind of the informant. As per the informant he had reached the police station with about one hundred to one hundred fifty members of his organization. Two witnesses, Ram Nandan Yadav and Prabhu Narain Yadav also appear to have signed over the first information report. The informant has also claimed that he got the first information report read over to him and understood it in presence of those two witnesses and finding the same to be correct he had signed over that. The informant having signed over the first information report indicates that he was a literate person. Therefore, the prosecution story soon after the occurrence was that the occurrence had taken place somewhere near the house of Deepak Mahto. The informant having signed over the first information report indicates that he was a literate person. Therefore, the prosecution story soon after the occurrence was that the occurrence had taken place somewhere near the house of Deepak Mahto. There is no mention of Bhagwati Asthan of village Maldah as place of occurrence in the first information report. 14. It appears that what the informant and other witnesses have claimed to be the place of occurrence is the place of occurrence as claimed in the counter-case. Two of prosecution witnesses have admitted that it was at that place where three of the appellants had suffered injuries at the hands of the aforesaid procession. Examination of the Investigating Police Officer could have clarified this matter but neither he nor the two witnesses who had signed over the first information report have been produced in the court. 15. In sum total it has to be held that serious doubts arise about the place of occurrence when considered with the case made out in the first information report. The second point argued was that though three members of the appellants side had suffered injuries including incised ones, as also a grievous injury, the prosecution has not tried to explain those rather the witnesses have skirted those stating that they had seen no injury upon any of the appellants though the informant himself admitted the knowledge (paragraph 24) that the three injured were arrested in course of their treatment in the Samastipur hospital. 16. Before considering this point, first injuries upon the three of the appellants may be seen. The defence witness no. 2, Dr. R.P.Mishra who was then posted at the Sadar Hospital at Samastipur had examined the three injured in the afternoon of 20.8.1983. On Tarni Mahto he found one incised injury on left supra clavicular region 4 x 1/6" x 1/5"; an abrasion at right supra clavicular region 4" x 1/2"; another incised injury on the left buttock 1" x 1/3" x 1/3" and a fracture injury as revealed by the X-ray, at the right palm. This injury was grievous whereas others were simple. Incised injuries, in the opinion of the doctor, were caused by a weapon like bhala. This injury was grievous whereas others were simple. Incised injuries, in the opinion of the doctor, were caused by a weapon like bhala. On Ram Dayal Mahto the doctor found one incised wound 1" x 1/3" x 1/2" near the left knee on the thigh, another incised wound on the pinna of left ear, 1" x 1/4" x 1/6" and two abrasions on the scalp. Two injuries were by sharp cutting weapon and two by hard and blunt substance, simple in nature. The doctor on Ram Sagar Mahto found one incised injury at the left thigh, 1" x 1/5" x1/2" with the complain of pain over the whole body as well pain in chest. One injury was by sharp weapon and the rest by hard and blunt substance. The three injury reports were marked Exhibits-C to C/2. This witness, as pointed out, also said that the injuries were not examined on any requisition of Police. They were so treated is obvious from the evidence of the informant that the three injured were arrested by the Police in the hospital. The doctor, when a patient reaches hospital, has to first treat him and when the case appears to be Medico-legal one he has to send information to the Police which may be a bit afterwards. 17. Therefore, it will appear that three of the appellants were injured, one also suffering a grievous injury and all the three suffering injuries by sharp cutting weapons besides by hard and blund substance. As already seen, two of the prosecution witnesses have admitted that they were injured in the same occurrence at the place of occurrence as claimed by the defence. But other witnesses including the informant have denied about any of the injury upon any of the appellants. 18. It is not every injury upon the accused that has to be explained by the prosecution, but if it is shown that the injuries to them were caused in the same occurrence and that the injuries were not just superficial, the prosecution should come out with clean hands and explain those injuries. Not having done so the prosecution, in the instant case, does not appear to have come with clean hands. 19. Not having done so the prosecution, in the instant case, does not appear to have come with clean hands. 19. Here also in this context it was argued on behalf of the appellants that the appellants have brought on record the injuries suffered by the three appellants, but the prosecution though has claimed injuries upon Akber Mian and Ram Swarup Mahto also, but on the record it did not even brought the medical evidence about their injuries, particularly when Akber Mian was said to have suffered bhala blows. 20. The next point argued by the learned counsel was that though the fardbeyan was recorded on 19.8.1983 at 6.00 P.M. and registered soon afterwards, this had reached the court of the Chief Judicial Magistrate on 22.8.1983. It was strongly argued that when there was a counter case with specific allegations, and different places of occurrence as per the two first information reports, if there had been inordinate delay in reaching the first information in the court of the Magistrate which delay the prosecution has not sought to explain, the irresistible conclusion would be that the prosecutions hands were not clean and there had been some ante-dating in the first information report manipulating it after confabulation. 21. It is not in every case, as is settled law, that if the first information report has been received late in the court of Magistrate, that must give rise to doubts about its truthfulness. When the Police Officer is shown to have started investigation soon after the recording of the first information report and to have examined witnesses, to have inspected the place of occurrence, then adverse inference is neutralized. If the delay is well explained by prosecution evidence even then that will nullify the adverse inference. The Investigating Officer not having been examined, the defence was deprived of chance of eliciting information as to how and when Investigation started. The counter case was lodged next day in the evening hours but there is nothing to show that by that time they were put under arrest. They were examined by the doctor hours before recording the Exhibit-A. The prosecution on record has no explanation for late reaching of the first information report in the court of the Chief Judicial Magistrate. From the records of the Court of Chief Judicial Magistrate it appears that order no. They were examined by the doctor hours before recording the Exhibit-A. The prosecution on record has no explanation for late reaching of the first information report in the court of the Chief Judicial Magistrate. From the records of the Court of Chief Judicial Magistrate it appears that order no. 1 is dated 22.8.1983 recording that the first information report of this case was received. Order no. 2 is of the same day noting that the Sub-Inspector of Hasanpur Police Station had given an application for issuance of processes under sections 82 and 83 of the Code of Criminal Procedure as well for warrants of arrest stating therein that all the ten accused were absconding and were removing their movable properties. Both appear to have been received on the same day. This does not indicate that the investigation had proceeded in right earnest. 22. Sri G.R Jaiswal, learned Additional Public Prosecutor submitted that many a times because of some holidays the receipt of the first information reports are recorded on subsequent dates. However, it is just an assumption in proof of which the prosecution has not cared to bring on record any evidence. This also, therefore, creates serious doubt about the fairness in the prosecution case. 23. Learned counsel appearing on behalf of the appellant Tarni Mahto has commented upon the medical evidence in this case. P.W. 14 recorded the following findings when he conducted autopsy upon the dead body of Bhuneshwar Mahto on 20.10.1983 "(i) Lacerated wound of 1" in diameter with inverted and blackening margin in front of chest on right side of sternum. (ii) Lacerated wound 2" in diameter with everted margin on the back of the right side of chest between 7th and 8th ribs. Surrounding margins were blacken." The doctor found both the injuries communicating on dissection hence opined that both the injuries were caused by same bullet, being the wounds of entry and exit. In course of cross-examination the doctor said that the presence of blackening marks at the wounds of entry and exit suggested that the injuries might have been caused from point blank range or from a short distance. The doctor also opined that blackening in the exit wound suggested that the smoke had passed through the wound. Learned counsel argued that this shows that the injuries could hardly have been caused beyond a distance of three to four feet. The doctor also opined that blackening in the exit wound suggested that the smoke had passed through the wound. Learned counsel argued that this shows that the injuries could hardly have been caused beyond a distance of three to four feet. lt was pointed out that P.W. 2 had said (paragraph 4) that Tarni had fired from a distance of three yards whereas P.W. 3 claimed that Tarni was about five to six cubits away from Bhuneshwar when he fired. P.W. 7 said that Tarni was about three to four yards away from Bhuneshwar when he was hit by the shot. P.W. 10 said that at the time of firing Tarni was about five to six yards off Bhuneshwar. P.W. 13 said that the distance between the assailant and the deceased was about two to three yards. Learned counsel for the appellant Tarni Prasad, therefore, had argued that none of the eye-witnesses had said that the firing was done at point blank range or from a distance of only two to three cubits rather the distance suggested mostly was in yards. 24. At least, about this argument, it can be said that the medical and ocular evidences did not exactly support each other. 25. About non-examination of the Investigating Officer, on one hand, on behalf of the appellants it was claimed that they had been prejudiced but on behalf of the State it was argued that such non-examination of Investigating Officer had not prejudiced the defence in any way. 26. As we have already seen, there are contradictions about the place of occurrence. Some of the witnesses were asked about what they had stated before the Police such as P.W. 3, P.W. 6, P.W. 10 as well the informant himself. Non-examination of the Investigating Police Officer obviously has deprived the defence in asking questions about the place of occurrence and about the witnesses as to what they had and had not said before him about the prosecution story. Therefore, l find that to this extent the defence has been prejudiced by non-examination of the Investigating Police Officer. 27. Obviously, in such a case in which it appears that assault had taken place from both the sides, the individual members of the unlawful assembly, if any, would be responsible for the act/acts done by them. Therefore, l find that to this extent the defence has been prejudiced by non-examination of the Investigating Police Officer. 27. Obviously, in such a case in which it appears that assault had taken place from both the sides, the individual members of the unlawful assembly, if any, would be responsible for the act/acts done by them. It was pointed out that there are appellants to whom no overt act has been assigned, like Harkhu Mahto. Documents have also been placed on behalf of the defence showing that though accused showed that the bataidari case was decided in favour of appellant Deepak Mandal but the other side had filed no paper in support of any bataidari case pending in dispute which was said to be one of the reasons of the occurrence. The documents also relate to the case filed by the Circle Officer against some of the prosecution party about a week before this occurrence. Alibi of Deepak Mahto has also been sought to be proved by the defence but from what has already been discussed it appears that many doubts have arisen about the truthfulness of the prosecution case. Those in themselves be sufficient to bring home the benefit of doubt to the appellants. 28. Great stress has been laid upon the right of private defence to the appellants. It has been pointed out that obviously some of the appellants had suffered injuries and one of them a grievous injury. It was, therefore, alternatively argued that in such circumstance even if Tarni Mahto had fired upon the mob, which was assaulting them, killing one of them, this was in rightful exercise in right of private defence. 29. On the other hand, learned Additional Public Prosecutor argued that the procession that was coming was without arms, hence there could not have been right of private defence against an unarmed procession. This was countered on behalf of the appellants pointing out the evidence of D.W. 2, Dr. R.P. Mishra, who had examined appellant Tarni Mahto and others and had found also incised injuries upon them which suggested use of sharp utting weapons against the three injured ppellants. 30. Both sides have suffered injuries. This was countered on behalf of the appellants pointing out the evidence of D.W. 2, Dr. R.P. Mishra, who had examined appellant Tarni Mahto and others and had found also incised injuries upon them which suggested use of sharp utting weapons against the three injured ppellants. 30. Both sides have suffered injuries. is difficult to say from materials on the record as to which side had started the fight.Notwithstanding evidence of P.W. 15 who has supported the defence version including about the one death that was caused, evidence of P.W. 2 in cross-ex-amination also creates doubt about the prosecution case that the appellants were waiting variously armed, for the procession to come and no sooner the procession came near the Bhagwati Asthan, the as-sault took place. 31. It is for the prosecution to bring its case beyond reasonable doubt but it is enough for the defence to create doubts bout the manner of occurrence as alleged by the prosecution. Therefore, when at least three of the appellants have suffered enjury including incised injuries and one grievous injury though not on vital part of them body, it cannot be said that they were not under apprehension of being caused grievous hurt, if not death, which entitled them to the right of private defence. 32. In the case of Ishwar Singh vrs. state of U.P.; (1976)4 S.C.C. 355 , wherein the appellants were convicted by the lower court which was affirmed by the High Court, the Apex Court acquitted the appellants, on the basis of the materials on record and observing, in the result, as follows: "....We have pointed out that trial court in convicting the appellant overlooked certain significant features of the case, namely, the inordinate and unexplained delay in despatching the first information report to the Magistrate; the difference in the account given by the prosecution witnesses and as appearing from the first information report of the occurrence; the absence of any statement in the first information report as to the injuries received by some of the accused, and the non-examination of material witnesses." The facts in this case are also on almost similar lines. 33 In the case of Patori Devi vs. Amar Nath; A.I.R. 1988 S.C. 560, the trial court had convicted the appellants who were acquitted by the High Court. 33 In the case of Patori Devi vs. Amar Nath; A.I.R. 1988 S.C. 560, the trial court had convicted the appellants who were acquitted by the High Court. The Apex Court quoted the following findings of the High Court "On the aforesaid analysis the true state of affairs on record, as appears to us, is that the prosecution had advanced a false story that the appellants had assaulted the deceased persons. The version given by the defence that they were attacked first and were given various injuries indiscriminately appears to be reasonably true. At any rate, the prosecution has suppressed the true version of the story and the court is not in a position to arrive at the truth so as to discard the defence version as not being reasonably true." In that case one of the injuries to one of the appellants was grievous, fracture in leg, which also was not an injury on a vital part which was also noticed by the Apex Court. Their Lordships of the Apex Court also observed that "we are of the view that there was a soft pedalling in the investigation, if not suppression of the part of the incident. If the prosecution had revealed the entire story we would have been able to find the nuggets of truth. On the material on record, however, we are unable to find fault with the findings recorded by the High Court." 34 In this case also on the material on records it is difficult to find out as to who actually had started the fight. Evidence has been brought on the record that three of the appellants had suffered various injuries whereas, on the prosecution side one had died and two had suffered some injuries of which even the medical evidence is lacking. Therefore, it is not possible to discard the arguments of the learned counsel for the appellants that even if it be admitted that the appellants had caused the death or the injuries, the possibility cannot be ruled out that they had done so in the exercise of right of private defence. Therefore, it is not possible to discard the arguments of the learned counsel for the appellants that even if it be admitted that the appellants had caused the death or the injuries, the possibility cannot be ruled out that they had done so in the exercise of right of private defence. However, in view of findings arrived at by this court holding that on various vital points doubts were created about the truthfulness of the prosecution case, it would only be academic to delve into the question as to whether appellant Tarni Mahto had exceeded in exercise of the right of private defence. 35. In view of what has been discussed aforesaid, in my opinion, the appellants in both the appeals deserve benefit of doubt. 36. That being so, both the appeals, namely, Criminal Appeals no. 462 and 506, both of 1999, are allowed and the judgment of conviction, as well the sentences awarded by the learned trial court, are hereby set aside. Appellant Tarni Prasad Mahto alias Tarni Mahto (of Criminal Appeal no. 506 of 1999), who is in custody, is ordered to be set at liberty forthwith, if not required to be detained in connection with any other case. The rest of the appellants are discharged of the liabilities of their bail bonds. Chandra Mohan Prasad, J. 37 I agree.