U. S. TRIPATHI, J. This appeal has been directed against the judgment and order dated 6-3-1981 passed by the then IV Additional Sessions Judge, Mirzapur in Sessions Trial No. 169 of 1979 convicting all the appellants under Sections 147, 302 read with 149, 325 read with 149 and 323 read with 149 IPC and sentencing each of them to rigorous imprisonment for a period of two years under Section 147, imprisonment for life under Section 302 read with 149 IPC, rigorous imprisonment for a period of two years under Section 325 read with 149 IPC, and rigorous imprisonment for a period of one year under Section 323 read with 149 IPC. All the substantive sentences were ordered to run concurrently. 2. The prosecution story, briefly stated, was as under: Kashi Nath (P. W. 1) and his brother Ramjee Ojha deceased, residents of village Khurda Pandey, P. S. Lalganj, District Mirzapur had purchased one biswa land of plot No. 269 situate at Lalganj Bajar from Mangla Prasad through a registered sale deed dated 23-9-1977. Eastern portion of the said plot was already purchased by appellant Ram Nath and he had filled up foundation by stone bolders upto plinth over the area, which he had purchased. On the morning of 22-3-1978 at about 8 a. m. Kashi Nath (P. W. 1) was getting foundation dug over the land adjacent towards west of the land of appellant Ram Nath through labourers. Kashi Nath (P. W. 1), his brother Ramjee Ojha deceased, his sons Jai Shanker Prasad (P. W. 2), Anand Shanker (P. W. 3) and one Hridya Narain Pandey (P. W. 4) were also present on the spot. Appellant Suresh Kumar came to the spot and started abusing Ramjee Ojha deceased saying that no foundation would be dug there. He slapped Ramjee Ojha deceased and thereafter left the spot saying that he would be coming soon. After two and half hours at about 10. 30 a. m. appellant Ram Nath, Prabha Shanker, Suresh Kumar, Bhola, Mataru and Dileep @ Deep Kumar all armed with lathis and dandas came there. Ram Nath inflicted lathi blow on Ramjee Ojha deceased and thereafter Prabha Shanker and Suresh Kumar inflicted lathi blows on Ramjee Ojha deceased. Bhola and Mataru inflicted lathi blows on Kashi Nath (P. W. 1 ). Ram Nath inflicted lathi blow on Ramjee Ojha deceased and thereafter Prabha Shanker and Suresh Kumar inflicted lathi blows on Ramjee Ojha deceased. Bhola and Mataru inflicted lathi blows on Kashi Nath (P. W. 1 ). On the objection by Jata Shanker, Anand Shanker and Hriday Narain (P. W. 2 to P. W. 4) the appellants caused injuries to them also. On the intervention of witnesses and labourers, the appellants left the spot. Ramjee Ojha became unconscious. Jai Shanker (P. W. 2) prepared report of the occurrence (Ext. Ka-2) and taking the injured came to the police station Lalganj, where he lodged report at 12. 05 p. m. Chik report (Ext. Ka-4) was prepared by the then Head Moharrir Ram Briksh (P. W. 6) who made an endorsement of the same at G. D. report (Ext. Ka-5) and registered a case under Sections 147 and 323 IPC against the appellants. He sent the injured Kashi Nath (P. W. 1) Ramjee Ojha deceased, Anand Shanker (P. W. 3) and Hridya Narain (P. W. 4) to Primary Health Centre, Lalganj through Constable Ram Krishna for medical examination. Dr. Ramendra Kumar (P. W. 11) medically examined Kashi Nath (P. W. 1), Ramjee Ojha deceased, Anand Shanker (P. W. 3) and Hriday Narain Pandey (P. W. 4) between 1. 15 and 2. 30 p. m. and prepared injuries report (Ext. Ka-18 to Ext. Ka-21 ). All the above injured persons were went to S. S. P. G. Hospital, Varanasi for further treatment. Ramjee Ojha deceased was admitted in the hospital. The investigation of the case was taken up by Sri Bal Govind Tewari (P. W. 9 ). He reached the spot on 23- 3-1978 inspected place of occurrence and prepared site plan (Ext. Ka-14 ). He also took into possession blood stained and simple earth from the spot and prepared recovery memo (Ext. Ka-15 ). Ramjee Ojha deceased died in the hospital on 23-3-1978 at 7 a. m. Inquest of the dead body of Ramjee Ojha deceased was conducted on 23-3-1978 by Sub Inspector Bahadur Ram of P. S. Kotawali, Varanasi. He sealed dead body and handed over to Constable Jagdish Singh (P. W. 8) alongwith relevant papers for escorting it to the mortuary. Autopsy on the dead body of Ramjee Ojha deceased was conducted on 23-3-1978 by Dr. He sealed dead body and handed over to Constable Jagdish Singh (P. W. 8) alongwith relevant papers for escorting it to the mortuary. Autopsy on the dead body of Ramjee Ojha deceased was conducted on 23-3-1978 by Dr. B. D. Sharma (P. W. 10), who found stitched wound on the head, contusion on right temporal region and cause of death due to shock and haemorrhage as a result of head injury. He prepared post mortem report (Ext. Ka-17 ). The I. O. Sri Bal Govind Tewari (P. W. 9) interrogated Kashi Nath (P. W. 1), Anand Shanker (P. W. 2), Hriday Narain (P. W. 4) and others on 25-3-1978 at S. S. P. G. Hospital, Varanasi and on completion of investigation submitted charge sheet (Ext. Ka-16) against the appellants. Cognizance of the case was taken up by the Magistrate, who committed the case to the Court of Sessions. In the trial Court all the appellants were charged with the offences punishable under Section 147 IPC, 302 read with 149 IPC, 325 IPC read with 149 IPC and 323 read with 149 IPC. The appellants pleaded not guilty. The appellant Suresh Kumar contended that on the date of occurrence he had gone to Lalganj Bazar for making purchases for Holi Festival. Kashi Nath and others were removing the boulders of the foundation of his uncle Ram Nath. He objected them to do so. On it, Kashi Nath and others started causing injuries on him with knife and Danda. When he tried to run away, they surrounded him and again started causing injuries on him. The peons of the School situate near the place of occurrence came to the spot and saved his life. Danda and stone bats were used by the peons due to in which prosecution side sustained injuries. The above occurrence took place at about 8 or 8. 30 a. m. He also lodged report of the occurrence and his injuries were medically examined. Cross case was initiated on his report. Appellant Ram Nath contended that he was not present on the spot and was with Kanongo (as he was Lekhpal ). Appellant Bhola, Deep Kumar, Rishi Nath @ Mataru and Prabha Shanker contended that they were falsely implicated to harass them. Cross case was initiated on his report. Appellant Ram Nath contended that he was not present on the spot and was with Kanongo (as he was Lekhpal ). Appellant Bhola, Deep Kumar, Rishi Nath @ Mataru and Prabha Shanker contended that they were falsely implicated to harass them. Prosecution in support of its case examined Kashi Nath (P. W. 1), Jai Shanker Prasad (P. W. 2), Anand Shanker (P. W. 3), Hriday Narain Pandey (P. W. 4) as witnesses of fact, besides Dr. S. K. Gupta (P. W. 5), Ram Briksha (P. W. 6), Dr. A. K. Dwivedi (P. W. 7), Constable Jagdish Singh (P. W. 8), Bal Govind Tewari, I. O. (P. W. 9), Dr. B. D. Sharma (P. W. 10) and Dr. Ramendra Kumar (P. W. 11) as formal witnesses. The appellants did not adduce any evidence in their defence. 3. The learned Sessions Judge on considering evidence of the parties held that Ram Naths land was not encroached upon nor its plinth was uprooted by Kashi Nath and others. Suresh Kumar appellant had no occasion to interfere with the work of Kashi Nath and others. Suresh Kumar and other appellants came to the spot fully prepared to stop Kashi Nath and others from digging the foundation. Appellants side was aggressor and had no right to act in self defence, as they had sufficient time to have recourse to the authorities. The injuries of Suresh Kumar were not sustained in the same transaction and it was subsequently manufactured, therefore, the appellants side was clearly aggressor and had no right of self defence. Prosecution thus successfully proved the guilt of the appellants. With these findings he convicted and sentenced the appellants as mentioned above. 4. Aggrieved with their above conviction and sentence, the appellants have come up in this appeal. 5. We have heard Sri S. P. Srivastava, learned counsel for the appellants and the learned A. G. A. for the respondent and have perused the evidence on record. 6. In this case marpit and injuries on the person of injured Kashi Nath (P. W. 1), Jai Shanker (P. W. 2), Anand Shanker (P. W. 3), Hriday Narain Pandey (P. W. 4) and death of Ramjee Ojha deceased on account of injuries sustained by him in the occurrence are not disputed. 7. Dr. 6. In this case marpit and injuries on the person of injured Kashi Nath (P. W. 1), Jai Shanker (P. W. 2), Anand Shanker (P. W. 3), Hriday Narain Pandey (P. W. 4) and death of Ramjee Ojha deceased on account of injuries sustained by him in the occurrence are not disputed. 7. Dr. Ramendra Kumar (P. W. 11), who examined injuries of above injured persons stated that he found following injuries on their persons: Injuries of Ramjee Ojha (1) Lacerated wound bleeding 4 cm x 0. 6 cm 7. 8 cm above from right eye brow. (2) Swelling 10 cm x 9 cm 3. 5 cm above right eye brow. (3) Ecchymosis 5. 5 cm x 3 cm right eye. (4) Ecchymosis 4 cm x 1 cm left eye. (5) Abrasion 9 cm x 1 cm 10 cm above from right ankle joint. (6) Abrasion 9 cm x 2 cm 11 cm above from left ankle joint. Injuries of Kashi Nath (P. W. 1) (1) Lacerated wound 8 cm x 11 cm 2 cm. away from left ear on head. (2) Bruise redish in colour 4 cm x 3 cm left side of back. (3) Bruise with swelling 8 cm x 4 cm on right side of back. (4) Swelling 4 cm x 2 cm below IIIrd Inj. (5) Swelling 7 cm x 4 cm, 4 cm above from right buttock. (6) Abrasion 6 cm x 1 cm, 2 cm above from right ankle joint. Injuries of Hriday Narain Pandey (P. W. 4) (1) Lacerated wound bleeding 5 cm 2 cm, 10 cm above right ear on head. (2) Bruise 6 cm 2 cm on left side back. (3) Bruise 8 cm x 2 cm on right side back. (4) Swelling 9 cm x 3 cm on right hand back. (5) Swelling 9 cm x 3 cm on right side back. (6) Swelling 8 cm x 2 cm on elbow joint. (7) Swelling 8 cm x 1. 5 cm right elbow joint 1. 2 cm below injury No. 6. (8) Swelling 8 cm x 3 cm on right leg. Injuries of Anand Shanker Ojha (P. W. 3) (1) Lacerated wound 4 cm x 2 cm on right side of head 9 cm above right ear. (2) Swelling 3 cm x 1. 5 cm on back of right thumb. (3) Swelling 4 cm x 2 cm on left palm. Dr. (8) Swelling 8 cm x 3 cm on right leg. Injuries of Anand Shanker Ojha (P. W. 3) (1) Lacerated wound 4 cm x 2 cm on right side of head 9 cm above right ear. (2) Swelling 3 cm x 1. 5 cm on back of right thumb. (3) Swelling 4 cm x 2 cm on left palm. Dr. B. D. Sharma (P. W. 10), who conducted autopsy on the dead body of the deceased Ramjee Ojha found following ante mortem injuries on his person: (1) Stitched wound on the right side skull, 9 cm above the eye brow, stitches removed and found lacerated type wound 7 cm x 1/2 cm x scalp deep. (2) Ecchymosis of left upper eye lid. (3) Ecchymosis of both eye lids of right eye. (4) Contusion 8 cm x 4 cm on the right temporal region. (5) Abrasion 4 cm x 1 cm on the middle of left leg. 8. He further stated that internal examination showed that there was fracture of skull on the fronto- parietal region of stellate type with multiple pieces under injury No. 1. Membrances and brain were congested under the fracture under injury No. 1 and filled with clotted blood. Cause of death was due to shock and haemorrhage as a result of head injury. 9. Dr. S. K. Gupta (P. W. 5) stated that on 5-4-1978 he conducted X-ray of right thumb of Anand Shankar (P. W. 3) and found crack fracture of proximal phalanx of right thumb. Dr. A. K. Dwivedi (P. W. 7) stated that on 1-4-1978 he examined Kashi Nath Ojha (P. W. 1 ). That on account of injury on his head of developed sensineal deafness. 10. The above medical evidence was not challenged. As mentioned above, appellant Suresh Kumar admitted in his statement under Section 313 Cr. P. C. as well as in his cross report (Ext. Kha-2) lodged by him, the injuries on the above named injured person. It is established from the evidence of Dr. B. D. Sharma (P. W. 10) that Ramjee Ojha deceased died on account of head injuries received by him. Thus, the prosecution established injuries on the above injured persons and death of deceased Ramjee Ojha in the incident in question. 11. It is established from the evidence of Dr. B. D. Sharma (P. W. 10) that Ramjee Ojha deceased died on account of head injuries received by him. Thus, the prosecution established injuries on the above injured persons and death of deceased Ramjee Ojha in the incident in question. 11. The case of the prosecution was that on the morning of occurrence at about 8 a. m. Kashi Nath (P. W. 1) alongwith his brother Ramji Ojha deceased and his sons Jai Shanker (P. W. 2) and Anand Shanker (P. W. 3) as well as Hriday Narain Pandey (P. W. 4) was getting his foundation dug on his land in Lalganj Bazar, towards west of the foundation of appellant Ram Nath. Appellant Suresh Kumar, nephew of appellant Ram Nath came there and objected them from digging foundation there saying that the land belonged to his Uncle. When he did not succeed in his above attempt, he came to his house and at about 10. 30 a. m. all the appellants armed with lathis and Dandas again came to the spot and started causing injuries to Kashi Nath (P. W. 1), Ramjee Ojha deceased, Jai Shanker (P. W. 2), Anand Shanker (P. W. 3) and Hriday Narain Pandey (P. W. 4 ). 12. On the other hand, the case of appellant Suresh was that on the date of occurrence at about 8. 30 a. m. Kashi Nath and others were digging foundation and uprooting the stone bolders of his Uncle Ram Nath and when he objected them from doing so, Kashi Nath and others caused injuries on him with knife and Dandas. On his alarm peons of nearby School came to his rescue and threw stone bats due to which Kashi Nath and others sustained injuries. 13. The learned counsel for the appellants contended that in this case, the appellants had right to act in self defence and even though they had not specifically pleaded the plea of self defence, the evidence on record established that appellant Suresh Kumar was entitled to right of self defence. 14. The granting of benefit of right of self defence to an accused is well settled. 14. The granting of benefit of right of self defence to an accused is well settled. The Apex Court in the case of Rizan and another v. State of Chhatisgarh, JT 2003 (2) SC 191, held as below: "section 96 IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The section does not define the expression `right of private defence. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872, the burden of proof is on the accused,who sets of the plea of self- defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence, he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record. " 15. The Apex Court in the case of Salim Zia v. State of U. P. , AIR 1979 SC 391 , has held as below: "it is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence. " 16. Relying on other decisions, it was further held in Rizans case (supra) that the accused need not prove the existence of private defence beyond reasonable doubt. It is enough for him to show, as in a civil case, that the preponderance of probabilities is in favour of his plea. 17. In the light of above settled position of law, we wound consider as to which party was aggressor and whether the appellants side have right to act in self defence. 18. It may be mentioned at the very out set that appellant Ram Nath has set up a plea of alibi that he was not present at the spot and at the time of occurrence he was with Kanoongo. Appellant Prabha Shanker, Bhola, Mataru and Dileep have also not admitted their presence on the spot and they contended that they were falsely implicated to harass them. Appellant Prabha Shanker, Bhola, Mataru and Dileep have also not admitted their presence on the spot and they contended that they were falsely implicated to harass them. However, appellant Suresh Kumar contended that when he came to the spot to object Kashi Nath and others from digging foundation and uprooting bolders of the foundation of his uncle they caused injuries on him with knife and dandas and on his shrieks peons of nearby school came to his rescue. Brick bats and stone bats were thrown in which Ram Nath and others sustained injuries. It is not the specific plea of appellant Suresh Kumar that he caused injuries to Kashi Nath and others in exercise of right of private defence. However, we have to consider whether he acted in the exercise of his right of private defence. 19. Before adverting to the question of aggressorship and right of private defence we would like to refer that in the F. I. R. (Ext. Ka-1) informant Jai Shanker (P. W. 2) had not mentioned the time of occurrence. Appellant Suresh Kumar had also not mentioned time of occurrence in his cross report (Ext. Kha-2 ). However, in his evidence Kashi Nath (P. W. 1) stated that at about 8. 30 a. m. Suresh Kumar appellant came to the spot and objected him from digging foundation. That after two and half hours of it, at about 10. 30 a. m. Suresh Kumar and other appellants came to the spot and indulged in marpit. Appellant Suresh Kumar contended in his statement under Section 313 Cr. P. C. that the occurrence of marpit took place at 8 or 8. 30 a. m. 20. Kashi Nath (P. W. 1), Jai Shanker Prasad (P. W. 2), Anand Shanker (P. W. 3) and Hriday Narain Pandey (P. W. 4) have categorically stated that occurrence of marpit took place at 10. 30 and not at 8. 30. The evidence of Dr. Ramendra Kumar (P. W. 1) and injury reports of Kashi Nath (P. W. 2) and Ramjee Ojha deceased show that they were unconscious when were brought to Primary Health Centre, Lalganj. Primary Health Centre, Lalganj is in Kasba Lalganj where the occurrence took place and the distance of police station from the spot is only one and half furlong. The injured were brought to police station at 12. Primary Health Centre, Lalganj is in Kasba Lalganj where the occurrence took place and the distance of police station from the spot is only one and half furlong. The injured were brought to police station at 12. 05 a. m. as stated by Head Moharrir Ram Briksh (P. W. 6) and thereafter were brought to Primary Health Centre at 1. 15. This indicates that occurrence had taken place at 10. 30 and not at 8. 30, as the prosecution side was not expected to cause delay in taking the injured persons to the dispensary as condition of two injured persons namely Kashi Nath (P. W. 1) and Ramjee Ojha deceased was serious and they were unconscious. Has the occurrence of marpit taken place at 8. 30 a. m. the injured ought to have been brought at the police station and to the dispensary earlier than 12. The injuries of Suresh Kumar was examined at 6 p. m. , which itself suggests that the occurrence had taken place at 10. 30 a. m. 21. The learned counsel for the appellants contended that the prosecution side was dismantling and uprooting bolders of the foundation of appellant Ram Nath, which was objected by appellant Suresh Kumar. It indicates that prosecution side was taking forcible possession over the land belonging to appellant Ram Nath and therefore Suresh had right to protect property of his uncle. The prosecution witnesses Kashi Nath (P. W. 1), Jai Shanker Prasad (P. W. 2) and Anand Shanker (P. W. 3) have denied above suggestion. According to evidence of Kashi Nath (P. W. 1), he was digging foundation over the land, which he purchased and foundation filled up with stone bolders up to a height of one feet of appellant Ram Nath was existing towards east of land purchased by him. The sale deed (Ext. Ka-1) indicated extent of land purchased by Kashi Nath and others mentioning that towards east there existed khandahar of Lal Chand and house of Ram Nath Lal. The boundaries of land of other side were also mentioned in the sale deed. Except the bald suggestion from the side of appellant regarding digging and uprooting of stone bolders of the foundation of Ram Nath there is no evidence on record to prove the same. The boundaries of land of other side were also mentioned in the sale deed. Except the bald suggestion from the side of appellant regarding digging and uprooting of stone bolders of the foundation of Ram Nath there is no evidence on record to prove the same. Much emphasis was laid on the evidence of Bal Govind Tewari, I. O. (P. W. 9), who stated in his cross examination that Kashi Nath (P. W. 1) had told him that Ram Nath had dug out another foundation in his land and had put stone bolders in it. That Ram Nath put bolders in the foundation after settlement by Punchas. He had shown the land over which Ram Nath had laid foundation by cross marks in the site plan. Jai Shanker was claiming above land as his own. He further stated that he had shown newly dug foundation with marks in the site plan. Perusal of site plan no doubt shows that newly dug foundation was found aside foundation of Ram Nath. But the I. O. visited the spot on next day and the possibility that foundation was extended towards the land of Ram Nath to make out a case of self defence cannot be easily ruled out, as on the date of occurrence Kashi Nath, his brothers and sons had gone to Varanasi Hospital. Moreover, no person of the prosecution side was present at the time of preparation of site plan and it is not clear on whose pointing out above site plan was prepared. 22. Assuming for the sake of argument that the prosecution side was digging foundation over some portion of land belonging to appellants and was encroaching upon land of appellants, on the own showing of the appellants, Suresh Kumar came to know about it as early as 8. 30 a. m. and therefore, he and other appellants had time to have recourse to the protection of public authorities, as the police station Lalganj was situated only at a distance of 1 and 1/2 furlong and he would have reported the matter to the police and would have taken the police help. But instead of it he and other appellants armed with lathis, Dandas came to the spot fully prepared to cause injuries to the injured and deceased. But instead of it he and other appellants armed with lathis, Dandas came to the spot fully prepared to cause injuries to the injured and deceased. Therefore, in such circumstances the appellants were not entitled to right to private defence of property as restricted by Section 99 of Indian Penal Code. 23. As mentioned above it is not the case of appellant Suresh Kumar that he acted in self defence of his person, but his contention was that on his shrieks peons of the school came to his rescue and threw stone bats which resulted in causing of injuries to prosecution side. None of the peon or any person of the locality has been examined and the prosecution witnesses have denied the presence of any peon of the school on the spot. 24. The learned counsel for the appellants contended that the prosecution had not explained the injuries on the person of appellant Suresh Kumar, which leads to infer that the prosecution had suppressed origin and genesis of marpit and version set up by the appellants appears more probable. 25. Dr. Ramendra Kumar (P. W. 11) stated that he had examined injuries of appellant Suresh Kumar on 22-3-1978 at 6 p. m. and found following injuries on his person: (1) Incised wound with margins clean cut 4 cm x 1. 5 cm at 1. 5 cm away from left ear on head. (2) Swelling 7 cm x 4 cm on left side of chest. (3) Contusion 10 cm x 2 cm on back 10 cm below from neck. (4) Bruise 10 cm x 2 cm. 2 cm below injury No. 3. (5) Bruise 9 cm x 2 cm 1. 5 cm below injury No. 4. (6) Swelling 4 cm x 2 cm left shoulder joint. (7) Swelling 4 cm x 3 cm on right shoulder joint. 26. He further stated that all injuries were simple. Injury No. 1 was caused by sharp edged and pointed weapon like knife and other injuries were caused by blunt object like lathi. Injuries were caused at about 8 a. m. on the said date were simple in nature and fresh in duration. 27. However, prosecution witnesses have stated that neither they had caused any injury to Suresh Kumar, nor they had seen injury of his person at the time of occurrence. 28. Injuries were caused at about 8 a. m. on the said date were simple in nature and fresh in duration. 27. However, prosecution witnesses have stated that neither they had caused any injury to Suresh Kumar, nor they had seen injury of his person at the time of occurrence. 28. The obligation of the prosecution to explain the injuries on the person of accused is well settled. The Apex Court held in the case of Vijayee Singh v. State of U. P. , (1990) 3 SCC 190 , that if the prosecution evidence is clear, cogent and credit worthy and the Court can distinguish the truth from falsehood the mere fact that injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence and consequently, the whole case and much depends on the facts and circumstances of each case. In said case Court held that non explanation of injury on the accused person does not affect the prosecution case as a whole. 29. This question again came up before three Judges Bench of Apex Court in the case of Ram Sunder Yadav v. State of Bihar, (1998) 7 SCC 365 , where the Apex Court reaffirmed the statement of law made by earlier three Judges Bench in Vijayee Singhs case (supra) and also relied upon another three Judges Bench decision in the case of Bhaba Nanda Sarma v. State of Assam, (1977) 4 SCC 396 , and as such accepted the principle that if the evidence is clear, cogent and creditworthy then non-explanation of the injury on the accused ipso facto cannot be a basis to discard the entire prosecution case. 30. In State of Rajasthan v. Hanuman, JT 2000 (Supp. 3) SC 550, the Apex Court held that the prosecution is not bound to explain injuries found on the accused in all cases. 31. 30. In State of Rajasthan v. Hanuman, JT 2000 (Supp. 3) SC 550, the Apex Court held that the prosecution is not bound to explain injuries found on the accused in all cases. 31. In Takhaji Hiraji v. Thakore Kuber Singh Chamen Sing and others, (2001) 6 SCC 145 , the Apex Court laid down the conditions in which prosecution was under obligation to explain the injuries on the person of accused and held as below: "before non-explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the Court has to be satisfied of the existence of two conditions: (i) That the injury was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case. " 32. The obligation on the prosecution to explain injuries on the person of accused, thus, arises in cases where it is proved that the accused side also sustained injuries in the same transaction and the injuries were apparent serious and were not superficial. 33. In the instant case injuries No. 2 to 7 of appellant Suresh Kumar were not serious and were superficial. However, injury No. 1 was allegedly incised wound with clean cut margins 4 cm x 1 cm, 6. 5 cm above left ear and according to Dr. Ramendra Kumar (P. W. 11) above injury No. 1 was caused by sharp edged and pointed weapon like knife. The above injury had no depth. It was not punctured or stabbed wound. Sharp edged and pointed object ordinarily cause injury with some depth even upto to skin or muscle. Incised wound also has some depth. The absence of depth in the injury of Suresh Kumar creates doubt in its nature. 34. The time of examination of injury of Suresh Kumar at 6. It was not punctured or stabbed wound. Sharp edged and pointed object ordinarily cause injury with some depth even upto to skin or muscle. Incised wound also has some depth. The absence of depth in the injury of Suresh Kumar creates doubt in its nature. 34. The time of examination of injury of Suresh Kumar at 6. 05 p. m. on the date of occurrence also creates doubt in sustaining injuries in the same transaction. As mentioned above Primary Health Centre, Lalganj is situated in the Kasba in which the occurrence took place and the police station was only at a distance of 1 and 1/2 furlongs. No explanation has been offered from the side of appellant as to why the injuries of Suresh Kumar were examined with such delay after a lapse of 9 and 1/2 hours, while the injuries on the person of prosecution witnesses were examined between 1. 15 and 2. 30 p. m. The examination of injuries of Suresh Kumar with unexplained delay lands to infer that the possibility that injuries were manufactured or injury report was obtained to make out a case of self defence cannot be easily ruled out. No evidence was adduced from the side of appellant and nothing could be elicited from the cross examination of the prosecution witnesses that injuries of Suresh Kumar were caused in the same transaction. Therefore, it has not been shown that appellant Suresh Kumar sustained injuries in the same transaction and in these circumstances prosecution was not under obligation to explain his injuries and non-explanation of injuries of Suresh Kumar was not fatal to the prosecution. 35. The presence of injured witnesses namely Kashi Nath (P. W. 1), Jai Shanker Prasad (P. W. 2), Anand Shanker (P. W. 3) and Hriday Narain Pandey (P. W. 4) on the spot is admitted. These witnesses had categorically stated that appellants side came to the spot armed with lathi, Dandas and was aggressor. No doubt, Hriday Narain Pandey (P. W. 4) was not acquainted with the name of all appellants and he recognised the appellants for the first time in the Court, therefore, his testimony may be ignored. Regarding evidence of Kashi Nath (P. W. 1), Jai Shanker Prasad (P. W. 2) and Anand Shanker (P. W. 3), there is nothing on record to disbelieve them. Regarding evidence of Kashi Nath (P. W. 1), Jai Shanker Prasad (P. W. 2) and Anand Shanker (P. W. 3), there is nothing on record to disbelieve them. No doubt Kashi Nath (P. W. 1) is the real brother of Ramjee Ojha deceased and Jai Shanker Prasad (P. W. 2) and Anand Shanker (P. W. 3) are the sons of Kashi Nath (P. W. 1) and the nephew of Ramjee Ojha deceased. They are no doubt relatives and may be said interested witnesses. But as held by the Apex Court in the State of Rajasthan v. Hanuman (supra) the position is well settled that evidence of eye witnesses cannot be discarded merely on the ground that they are relatives of the deceased. Normally close relatives of the deceased are not likely to falsely implicate a person in the incident leading to the death of the relative unless there are very strong and cogent reasons to accept such criticism. In the instant case there is no such strong and cogent reason to discard the testimony of above relative witnesses. 36. Appellant Ram Nath has pleaded alibi. It is settled that plea of alibi is to be proved by the person taking it, and in order to succeed with plea of alibi, there must be cogent evidence on record (vide Kalahasthri Pattabhirami Reddy v. State of A. P. , JT 2002 (8) SC 99. In this case no evidence has been led from the side of appellant to prove above plea of alibi. Therefore, we have no reason to accept the above plea of ali bi. 37. The other appellants Bhola, Dileep Kumar, Ram Nath and Prabha Shanker have stated that they were falsely implicated to harass them, but no ground for false implication has been shown. 38. Lastly it was contended that the offence falls only under Section 304 Part II IPC as except injury No. 1, other injuries of the deceased were simple and on non vital part and there was only one injury on the head. But having gone through the evidence on record we find no force in the above contention. It is established from the evidence on record that all the appellants armed with lathis and Dandas came to the spot and simultaneously attacked on the deceased and other injured. But having gone through the evidence on record we find no force in the above contention. It is established from the evidence on record that all the appellants armed with lathis and Dandas came to the spot and simultaneously attacked on the deceased and other injured. The injury No. 1 of the deceased was on head, which resulted in fracture of fronto parietal region of stellate type with multiple pieces. It is evident that it was caused by applying full force. This indicated the intention and knowledge of the author of said injury that it was likely to cause death of deceased. The common object of the unlawful assembly was thus to cause the death of deceased. Therefore, the offence falls under Section 302 read with 149 IPC. 39. In view of above evidence and discussions, we find that appellants side was aggressor and caused injuries to deceased, which resulted into his death and grievous and simple hurt to injured Kashi Nath (P. W. 1), Jai Shanker Prasad (P. W. 2), Anand Shanker (P. W. 3) and Hriday Narain Pandey (P. W. 4) and the appellants side had no right to act in self defence of person or property. Therefore, the appellants were rightly convicted and sentenced. The appeal has no force. 40. The appeal is, accordingly, dismissed. Conviction and sentence of appellants awarded by the trial Court are affirmed. 41. All the appellants are on bail. They shall surrender before the C. J. M. concerned to serve out the sentence. C. J. M. Mirzapur is directed to issue non bailable warrant against the appellants to secure their presence and sending them jail. 42. Office is directed to send copy of this judgment to C. J. M. Mirzapur for compliance and report within a month. Appeal dismissed. .