IMTIYAZ MURTAZA, J. ( 1 ) HEARD learned counsel for the appellants and learned A. G. A. ( 2 ) THE present appeal arose from an order of conviction and sentence in Session Trial No. 239 of 1977. The appellants are, seven in number in the appeal, but in the course. of incident were eight including Sumesar, who died during the pendency of the trial, therefore, he was not convicted, were accused. The convictions were under Sections 147, 323/149 and 302/149 I. P. C The sentences awarded under each count are one year R. I. 6 months R. I. and imprisonment for life respectively. The, sentences were to run concurrently. ( 3 ) TWO of the appellants Bhullar and Gugun preferred the journey to heavenly abode during the pendency of this appeal. Their appeal, therefore, stands abated. We are, thus, left with five appellants alone. ( 4 ) THE version as contained in the F. I. R. is that on the date of occurrence i. e. 30. 5. 1977, at about 9. 00 P. M. , appellants tried to lay their Chhappar upon the wall of the Charani belonging to the informant and the deceased Barhoo. The ownership of the land, on which the prosecution staked its possession, was claimed on the ground that it was allotted to them in a Panchayat held in the village some 3 years ago and since then the informant party was in possession over the said piece of land. The attempt of the accused to lay a Chhappar was resisted by the informant and his family members on this premise. Ganga Ram in retaliation gave a Lathi blow on the scalp of the deceased Barhoo at the initial stage of the occurrence. The elder brother of the deceased Barhoo snatched Lathi from the appellant Ganga Ram and plied the said Lathi in self-defence and in defence of his family members, About. a year before the occurrence, the wall, upon which the informant claims his Chhappar, has collapsed. For the last 3 - 4 days they were raising that wall around their Charani. The informant was having his cattle trough there. The report of the incident was lodged orally at the police station by P. W. 1 Ghamandi at 7. 35 A. M. on the next morning i. e. 31. 5. 1979 at P. S. Cantonmet. Basti. For the last 3 - 4 days they were raising that wall around their Charani. The informant was having his cattle trough there. The report of the incident was lodged orally at the police station by P. W. 1 Ghamandi at 7. 35 A. M. on the next morning i. e. 31. 5. 1979 at P. S. Cantonmet. Basti. All the appellants were nominated in the said first information report including Farsawald, Sumesar. Four persons including the deceased, barhoo, sustained injuries in the said incident from the side of the prosecution. They are ghamandi Ram, Barhoo, Smt. Kapoori Devi and Lokai. These persons were subjected to medical examination, after registration of the first information report, by Dr. R. S. Jafar Riyaz Hussain, p. W. 4 at the Primary Health Center Haraiya. Basti. These medical examinations of the abovesaid injured persons commenced from 9. 00 A. M. and concluded. at 11. 15 A. M. with the medical examination of Lokai. ( 5 ) AFTER reaching the hospital and his medical examination during the day around noon hours barhoo breathed his last as a consequence to the injuries suffered by him. His medical examination report is Ex. Ka. 4. The post-mortem was conducted by Dr. S. C. Srivastava. P. W. 5, on 2. 6. 1977 at 12. 00 noon. The duration of death noted in the post mortem examination report is about 2 days. The body was in advances state of de-composition. Skin was pealing off from ail over the body. Blisters have also appeared. Rigor Mortis had passed off from all over the body. The deceased suffered following injuries : (i) Stitched wound (4 stitches) 5. cm long, on opening the stitches the width of wound is 1 cm x bone deep on right side of fore head 3 cm above right eyebrow. Oblique, margins clean cut (ii) Stitched wound (2 stitches) 3. 5 cm. x 0. 5 cm. (on removal of stitches) bone deep on the right side to top of head 12 cm above right ear, vertical. Margins irregular. (iii) Smehed wound (2 stitches) 2 cm x 0. 5 cm (on removal of stitches) x bone deep on the left side of mid line of head 14 cm. above left ear, obliquely placed, margins irregular. (iv) Abrasion 2 cm. x 1 cm on the top of right shoulder. Margins irregular. (iii) Smehed wound (2 stitches) 2 cm x 0. 5 cm (on removal of stitches) x bone deep on the left side of mid line of head 14 cm. above left ear, obliquely placed, margins irregular. (iv) Abrasion 2 cm. x 1 cm on the top of right shoulder. ( 6 ) THUS, the injuries were compatible with the medical examination report, Ex. Ka. 4. Excluding an abrasion all other injuries were on the scalp region. The death occurred as a consequence to the cumulative effect of these 3 injuries The principal cause of death was presence of a large haematoma in the frontal part of the head. The fact admitted is that after the sufferance of these injuries, the victim remained unattended: medically at his house. There is no evidence worth the name on the record that any medical care was provided to the victim during night hours He was medically examined for the first time at 9. 00 A. M. at P. H. C. , Harraiya, Basti Prima facie in injury No. 1 there exists linear fracture. There does not exist any other internal damage over the injuries on the scalp region. Thus, right from the beginning the prosecution has come out with the case that this injury, an incised wound was caused by Sumesar who was armed with a Farsa. Learned counsel fort the appellants has challenged the prosecution version regarding the use of a farsa in the incident seriously on the ground that the medical officer, P. W. 5, has noted the injury to be spindled shaped. We will consider this issue lateron. The fact is clear that Surriesar was attributed with the incised injury in the front of the scalp. He died during trial. Membranes were congested due to subdunal haemorrhage. It caused the presence of heamatoma. This victim was never referred to the District Hospital by the P. H. C. , therefore, proper medical care lacked in the present It appears to be a case of reckless negligence on the part of the family members of the informant and the medical officer at the P. H. C. The injury report does not show presence of any haematoma anywhere nor is indicates any sufferance of linear fracture. It also does not indicate in any clear terms the general condition of the patient. It also does not indicate in any clear terms the general condition of the patient. Whether he was conscious or unconscious is also not discernible from the medical examination report Ex. Ka. 4. ( 7 ) THE principal contention raised by learned counsel for the appellants, in the circumstances, is that the author of this injury being a person, who was attributed with Farsa, other accused who wielded lathis cannot be conjoined for murder. No common object to cause death of Barhoo is hence discernible. The incident occurred on the spur of the moment so individual roles alone are to be the criteria for determination of their guilt. The story of common object to was culled out after the availability of the post-mortam examination report and the entire version of the prosecution is coloured thereon hence unacceptable. It is further contended that there are injuries on a number of accused persons on the side of the defence including the fracture in the index finger of Ganga Ram who had also suffered injury in the same incident. The prosecution admittedly tried to explain away the injuries suffered by the defence. It is also asserted. by learned counsel for the appellants Sri P. N. Misra that the defence has also come out with its own version and on close scrutiny of the defence version in league with the evidence of 2 eyewitnesses Gamandi, P. W. 1 and Smt Kapoori, P. W. 2 it leaves hardly any room for doubt that the prosecution side was aggressor. ( 8 ) LET us test the submission of these two aspects (a) who was in actual possession and (b) how the incident commenced. it is undisputed that both sides tried to usurp the same piece of land for which the prosecution has come out, both, P. W 1 and 2, with the story that 3 years ago the disputed portion was allotted to them in a Panchayat. It was allotted to Ghamandi. This allotment was never reduced in writing. It was oral. There is no evidence of any mutation on the strength of the said allotment in column No. 9 of the khasra entry. Had they been in possession over the said property from 15 16 years as they claimed, their names would have been entered in the column at least All these facts are discermible from their testimonies. It was oral. There is no evidence of any mutation on the strength of the said allotment in column No. 9 of the khasra entry. Had they been in possession over the said property from 15 16 years as they claimed, their names would have been entered in the column at least All these facts are discermible from their testimonies. In view of these facts and circumstances the informant did not have any right to object their possession is Proved over the said land by some cogent evidence. Existence on their. Chhappar was also not proved. Accused Ganga Ram has allege that they were laying a Chhappar on their land. The informant, his father and other family members prevented from doing it Stones arid brick bats were hurled. Injuries were suffered in the said brick-batting by some persons. They have filed a cross version that is also going on it is thus amply borne out from the evidence of D. W. Deep Narain Singh, son of the landlord from whom parties go their lands that some land was given to these persons by his father long ago. About 40 years ago a Panchayat was called to settle their dispute about this piece of land. Demarcation by fixing bricks was made. P. W. 1 admits holding of a panchayat but claims that it was held 3 -j4 years ago. He also admits that accused had already laid their Chhappar. It was about two hands from their Chhappar. Thus now it becomes abundantly clear that the prosecution tried to remove Chhappar of the accused This caused this incident to occur. This piece of evidence proved beyond all reasonable doubt that the occasion was provided by the prosecution side and there is every likelihood that they were aggressors instead of the accused. These accused in these circumstances only resisted their aggression. ( 9 ) THE situation in the present case is wholly untenable from the evidence of the prosecution itself. It is also admitted to the prosecution especially P. W. 1 that his Chhappar was on one paliya meaning thereby it was a single wall. These accused in these circumstances only resisted their aggression. ( 9 ) THE situation in the present case is wholly untenable from the evidence of the prosecution itself. It is also admitted to the prosecution especially P. W. 1 that his Chhappar was on one paliya meaning thereby it was a single wall. Difficulty was immediately fell by P. W. 1 and he has immediately retracted arid staked in the next breath that his Chhappar was two Paliya, It is also admitted to P. W. 1 that the stands for laying the Chhappar, prepared by the accused persons, were demolished and dismantled by them before the occurrence. It was enough to give rise to the present incident. Thus from the admissions made by the two witnesses, who are close relations of each other, it is clear to us without any doubt that the incident was sequel to highhandedness of the informant party. They were attempting the usurp the land lying in the portion of the accused. They tried to extend their territory by encroaching upon the land belonging to accused persons. The two portions were contiguous. The tenor of the statements made by the two eyewitnesses makes it loud and clear. The manner in which they have tried to search; for an escape from the situation in which they landed themselves makes it further categorical to us. ( 10 ) GANGA Ram had suffered fracture at his back and inner aspect of middle 1/3 of the right forearm and it is admitted to the prosecution that after snatching the Lathi from Ganga Ram, the deceased plied if upon accused persons. Sumesar intercepted into the incident at this stage and gave a Farsa blow, as alleged by the prosecution, on the front of the scalp (forehead) of the deceased. The allegations of hurling brickbats in the incident by P. W. 2 Smt. Kapoori Devi further corroborates the defence case that the incident occurred suddenly on the laying of chhappar by the accused on their own land prosecution side has tried to intervene and prevent them from doing so. The defence side just could not afford any further grabbing of their and the result hence was the incident. If the prosecution tried to dismantle their Chhappar certainly the defence has the right to protect their property. It is admitted by P. W. 1 Ghamandi that the accused had already laid their Chhappar. The defence side just could not afford any further grabbing of their and the result hence was the incident. If the prosecution tried to dismantle their Chhappar certainly the defence has the right to protect their property. It is admitted by P. W. 1 Ghamandi that the accused had already laid their Chhappar. They had removed their pegs etc. There is every likelihood that they were themselves aggressors and not defence. This possibility has found strength from the evidence of these witnesses and from the story of hurling of brickbats by all the accused as admitted by P. W. 2. Had they been armed with Lathi, as alleged by the prosecution, they would have plied the said Lathi upon the complainant party. ( 11 ) THE prosecution apparently was trying to suppress the true genesis of the incident and had come out with a coloured version during trial which does not hold sufficient. The conflict of the medical evidence, so far as injury No. 1 of Barhoo, an incised wound, is concerned, it further weakens the prosecution case with regard to the use of sharp edged weapon. The post-mortem report and the statement of P. W. 6, Dr. R. R. Bahadur Singh, clearly indicates that the weapon, which was used in the incident, might in all likelihood be a spear having on both sides of it sharp edges. Injury was noted to be spindle shaped the autopsy surgeon. It had been plied in a manner that only sharp side struck on his scalp. Spindle shaped weapon means a Bhala or a Ballam. ( 12 ) IN view of these facts and circumstances we are of the opinion that the prosecution has not come out with clean hands. It is guilty of suppressing the true genesis of the incident and it came out with a coloured version in order to escape from their own misdeed. The judgment of the sessions judge, in our opinion, materially suffers in appreciation of evidence. It failed to appreciate the evidence from both sides in a proper manner. He had failed to consider the real genesis of the incident in the light of the evidence brought on record he prosecution and the defence. ( 13 ) THE appeal, therefore, stands allowed. The conviction land Sentence of the appellants under the counts noted in the beginning of the judgment are set aside. He had failed to consider the real genesis of the incident in the light of the evidence brought on record he prosecution and the defence. ( 13 ) THE appeal, therefore, stands allowed. The conviction land Sentence of the appellants under the counts noted in the beginning of the judgment are set aside. They are acquitted of those charges. They, are on bail. They need not surrender. Their bail bonds are canceled and sureties are hereby discharged. . .