S. K. AGARWAL, J. ( 1 ) THIS appeal arises from the judgment and order of conviction dated 22. 12. 1980, passed by Sri. B. B. S. Chaudhary, X Additional Sessions Judge, Kanpur, convicting the appellants under section 137 I. P. C. to a sentence of 1 year R. I. They were also convicted under Section 323/149 and sentenced to R. I. for 1 year each. They were also convicted under Section 325/149 I. P. C. and sentenced to R. I. for 2 years. All of them were also convicted under Section 302/149 I. P. C. and each of them were convicted with R. I. for life. All the sentences were to run concurrently. ( 2 ) THE brief facts of the case are that on 15. 6. 1979 at about 7. 30 a. m. the deceased Sheo Ratan along with his son was proceeding on a bullock-cart from his house to Bara Society for depositing his wheat. As soon as his bullock-cart reached in front of the house of Babboo, it collided with the wall of Babboo. The informant was following his cart on foot. When his father tried to avoid the wall the cart went astray and damaged the stack of cow dung cakes stored in front of the house of Genda Lal on the other side. Genda Lal started hurling abuses due to the damage to his stack. His father asked him not to hurl abuses. On this, an altercation ensued between them. To point a precise picture the very words used in the F. I. R. are quoted "isi Bat par Kuch Aadhik Kahasuni Hui. " Genda Lal exhorted others to assault. On receiving hearing the exhortation, Badloo, Jagmohan, Genda Lal, Arjun, Raja Ram, Chhotey Lal, Babboo and badloos brother-in-law (wifes brother) Raja Ram all rushed to the scene armed with Lathis. They started belabouring Sheo Ratan and the informant Ram Babu. An alarm was raised which attracted Baladeen, Devideen son of Ghashite and Ram Dass son of Badloo, a cousin of the informant, to the spot. They tried to intercede. They were also beaten. The alarm of these belaboured persons attracted many people from the village side. Seeing the villagers rushing to the spot the assailants took to their heels. ( 3 ) ALL the injured were taken on a bullock-cart to the police station. They tried to intercede. They were also beaten. The alarm of these belaboured persons attracted many people from the village side. Seeing the villagers rushing to the spot the assailants took to their heels. ( 3 ) ALL the injured were taken on a bullock-cart to the police station. The injured Sheo Ratan had reached the police station in an unconscious state. ( 4 ) THE motive alleged behind the incident was that Badloo, Jagmohan, Genda Lal, Arjun, Raja ram, Chhotey Lal and Babboo, all belonging to one family, raised a wall, which narrowed down the road. The informant did desist them from raising the wall. Since then these accused persons were nursing a grouse against him. ( 5 ) THE injured persons, on the side of the prosecution, were sent for their medical examination and repair of the damage caused from the police station itself. ( 6 ) SHEO Ratan was examined at 11. 00 a. m. on 15. 6. 1979 at P. H. C. , Akbarpur. 3 abraded contusions, 1 swelling, 1 abrasion and 1 lacerated wound were found. Injuries No. 1 and 3 were on the head and skull region. Injuries No. 4 and 5 were found simple. Rest of the injuries were kept under observation subject to X-ray examination. ( 7 ) BALADEEN was medically examined at 11. 45 a. m. on 18. 6. 1979 at P. M. C. , Akbarpur. He had suffered 5 injuries including 2 swellings, 2 lacerated wounds and a contusion. His injuries were found simple, caused by some hard blunt object. ( 8 ) RAM Babu suffered a lacerated wound in the skull and a abraded contusion on back upper part. His medical examination took place on 15. 6. 1979 at 12. 00 noon at P. H. C. , Akbarpur. His injuries were simple in nature. ( 9 ) RAM Dass was medically examined on the same day, i. e. on 15. 6. 1979, at 12. 15 p. m. He suffered swelling on the left hand. Underneath this injury fracture of 5th metacarpal bone was detected. Hence this injury was of grievous in nature. ( 10 ) SO far as appellants are concerned, an F. I. R. was lodged at P. S. Kotwali from their side also on the same day at about 7. 15 p. m. He suffered swelling on the left hand. Underneath this injury fracture of 5th metacarpal bone was detected. Hence this injury was of grievous in nature. ( 10 ) SO far as appellants are concerned, an F. I. R. was lodged at P. S. Kotwali from their side also on the same day at about 7. 30 p. m. From a perusal of the F. I. R. of the defence side, which was lodged by Arjun, injured, it is apparent that the time of occurrence given in his F. I. R. is 10. 00 a. m. , which in our opinion was probable due to improper understanding of time. According to him, he and his brother Genda Lal were sitting at their door. Sheo Ratan and Ram Babu came to the side of their house on a bullock-cart. The bullock-cart went over the stack of cow dung cakes and also the residential portion of his house. He desisted them. Upon which Sheo Ratan and Ram babu started hurling abuses. On his raising alarm, Ram Babu jumped of the cart and ran towards his house. Sheo Ratan started grappling with him. In the meantime, Ram Babu returned to the spot with a spear in his hand and his companions Baladeen, Devideen, Ram Jewan and Ram dass with Lathis. These persons started belabouring them. with Lathis and Barchis. He and his brother were struck Barchi blows by Ram Babu. His companions belaboured them with Lathis. It is also stated in the F. I. R. that his brother fell unconscious He was removed in that condition by the accused persons and his whereabouts were not known to him. The report was registered, as earlier stated, at 7. 30 p. m. He was sent for his medical examination. His medical examination took place on 15. 6. 1979 at 8. 30 p. m. He had a lacerated wound, 3 contusion and 2 stab wounds, entry and exit. Injury No. 5 was an entry of the Barchi and injury No. 6, an exit wound of the same. Both communicate with each other. He had an injury on the skull, though skin deep only. Another injury was on the back of head, 13 cm. above occipital part. His injuries were also found simple. ( 11 ) THE post-mortem examination of Sheo Ratan was conducted on 19. 6. 1979. Both communicate with each other. He had an injury on the skull, though skin deep only. Another injury was on the back of head, 13 cm. above occipital part. His injuries were also found simple. ( 11 ) THE post-mortem examination of Sheo Ratan was conducted on 19. 6. 1979. According to that, cause of death was due to shock and haemorrhage from his injuries. According to post-mortem, there was only a solitary head injury, though the internal damage shows that there was clotting of blood. There was a fissured fracture horizontally. Membrane of the brain was congested. Clotted blood was found over the brain. Injury No. 1 was found to be sufficient in the ordinary course of nature to cause death. As earlier noted down, injuries of four injured except Ram Dass were found to be simple by the Medical Officer P. W. 6 Dr. K. D. R. Srivastava. In the injury on the hand of Ram Dass, 5th metacarpal was found fractured. ( 12 ) FROM the case of the prosecution and the defence following factors are proved beyond doubt. Firstly, the participation of Ram Babu, Baladeen, Devideen, Ram Jeevan and Ram Dass apart from deceased Sheo Ratan was made out. These persons, according to prosecution F. I. R. had suffered injuries in the process of interceding in the incident. The prosecution claimed that they came when all the 7 appellants and late Badloo, who died later on, launched the assault on Sheo ratan and Ram Babu. The prosecution side, in all, suffered 14 injuries. ( 13 ) ON the side of the defence, Arjuns injury only was brought on record. He had suffered 6 injuries including an exit injury of Ballam. ( 14 ) THE time of occurrence was not common. The prosecution alleges it to be 7. 30 a. m. , whereas the defence state it to be at 10. 00 a. m. ( 15 ) ARJUN appears as a defence witness. In his examination during trial, as D. W. 3, this witness has given out the time of occurrence between 8. 00 and 10. 00 a. m. , meaning thereby that this witness has no specific understanding of time. Therefore, it can safely be presumed that the occurrence took place sometime between 7. 30 and 8. 00 a. m. It is borne out from the medical examination of Sheo Ratan, especially. 00 and 10. 00 a. m. , meaning thereby that this witness has no specific understanding of time. Therefore, it can safely be presumed that the occurrence took place sometime between 7. 30 and 8. 00 a. m. It is borne out from the medical examination of Sheo Ratan, especially. He was examined medically at 11. 00 a. m. on 15. 6. 1979 at P. H. C. , Akbarpur. The distance of the police station from the spot is 4 miles and from the statement of P. W. 1 Ram Babu it appears that after the occurrence he ran back to his house and stayed there for half an hour. In the meantime wheat bags were unloaded from the bullock-cart and were brought to his house. His injured father was abandoned at the site of occurrence. He thereafter, about half an hour later, started drafting the F. I. R. which took nearly half an hour, as per his own statement. Thereafter he took nearly 1 hour 45 minutes in reaching the police station. From these facts and circumstances it is apparent, as earlier held, that the occurrence took place sometime in between 7. 30 and 8. 00 or 8. 30 a. m. All the injured were taken to the police station on a bullock-cart. The report was claimed to have been registered at 9. 45 a. m. On these facts the over all picture that emerges is that the occurrence, as earlier held by us, was of the morning, sometime between 7. 30 and 8. 30 a. m. ( 16 ) COMING to the question of participation, the nature and number of injuries rule out the participation of such a large number of persons from the side of the accused in the assault on the deceased and other injured. Eight persons were said to have wielded their Lathis upon the two injured, Sheo Ratan and Ram Babu at the initial stage and when on their alarm Baladeen, devideen, Ram Dass and Ram Jeewan came to the spot, they were also belaboured by these accused. When we individually examine the injuries suffered by these four injured, Baladeen ram Dass, Ram Babu, we find that total number of injuries suffered by them are only 8 in number. Baladeen suffered as many as 5 injuries, including 2 swellings,. Ram Dass suffered a solitary injury, whereas Ram Babu suffered 2 injuries. When we individually examine the injuries suffered by these four injured, Baladeen ram Dass, Ram Babu, we find that total number of injuries suffered by them are only 8 in number. Baladeen suffered as many as 5 injuries, including 2 swellings,. Ram Dass suffered a solitary injury, whereas Ram Babu suffered 2 injuries. Only two, out of those who came to the spot on hearing the alarm, had suffered injuries. They were Baladeen and Ram Dass. The other two companions of theirs did not suffer any injury in the incident. Sheo Ratan and Ram Babu together had suffered 8 injuries in all. Out of them injury No. 2 of Sheo Ratan is an abrasion on the head close to injury No. 1. He had suffered a lacerated wound 4. 5 cm. x 5 cm. x scalp deep on the left side of head 10 cm. above the left ear. Corresponding swelling on a area of 7 cm. x 4 cm. was found on right side of head above the right ear. The injury was kept under observation. According to post-mortem examination report only clotted blood and fissured fracture underneath injury No. 1 was found. Membranes of the brain were found congested. Therefore, prima facie, only one blow was given on the skull. Who caused that injury has not been identified by any of the witnesses. Arjuns injuries have not at all been examined. His injury No. 5 is a sharp pointed weapon injury caused in his thigh region starting from above the front of knee joint medical to patella, probing down the injury travelled over back of lower part of left thigh 10 cm. above the knee communicating to injury No. 5. Thus, it was a through and through injury caused by some sharp piercing weapon. No witness on the side of the prosecution claims to have caused any injury upon the defence side. D. W. 1 Dr. H. C. Prasad proved the injuries of arjun. D. W. 2 Ram Chandra Singh, Constable Clerk, also proved the defence F. I. R. ( 17 ) HURLING of abuses from both the sides, in our opinion, took place. Some scuffle also occurred between Sheo Ratan and Badloo. According to defence, Ram Dass initially rushed back to his house. His house admittedly was 15. 20 steps from the place of occurrence. Some scuffle also occurred between Sheo Ratan and Badloo. According to defence, Ram Dass initially rushed back to his house. His house admittedly was 15. 20 steps from the place of occurrence. Sheo Ratan and Ram babu started for the Bara Society just before the occurrence and hardly covered the above distance. In the circumstances it is possible that Ram Babu could have rushed back to his house and returned himself armed with a Barchi and his companions, including two injured, Baladeen ram Dass. Ram Jeewan and Devideen to the spot armed with Lathis. Lathiswere wielded from both the sides. Ram Babu used his Barchi is apparently probable. Presence of the injury on the person of Arjun proves it reasonably. ( 18 ) WE hardly found any infirmity in the statement of D. W. 3 Arjun, who himself is an accused in the incident. The I. O. has found broken cow dung cakes but he had not shown any damage to their residential portion. When the wall was raised admittedly on the asking of the prosecution side, it was not fully raised. It was high about 3 (feet ). Raising of the wall was thereafter abandoned. No hurling of abuses took place on that day, as admitted by P. W. 1. Thus, the motive alleged in this case, in our opinion, stands not proved at all. Rather, in our opinion, it is a wholly false accusation made in the F. I. R. and adhered to during the trial. Thus, the bone of contention between the parties was damage to the cow dung cakes and the hutment of Baladeen by the complainant party as a consequence of going out of control of their bullock-cart. The reason may be anything, either some collision of the wheels of the cart with the newly raised wall or for some other reason the bullocks of their own cart went beyond the control of Sheo Ratan. So far as the age of Sheo Ratan is concerned, he is aged about 50 years, according to medical examination report. In this stand quarrel between the parties on account of the above incident of bullock-cart going beyond control a Marpit from both the sides, in our opinion, occurred. So far as the age of Sheo Ratan is concerned, he is aged about 50 years, according to medical examination report. In this stand quarrel between the parties on account of the above incident of bullock-cart going beyond control a Marpit from both the sides, in our opinion, occurred. The defence had not produced and proved the injuries of Genda Lal, who, according to F. I. R. of arjun, was taken away in his unconsciousness by the complainant party and till the lodging of the report at 7. 30 p. m. according of F. I. R. his whereabouts were not known to the defence. He was present in court. He, in his deposition under Section 313 Cr. P. C. in response to the last question, stated that Arjun suffered Ballam injury and he also suffered injuries in the incident. He was taken away by the accused persons. Therefore, non-examination of his injuries by the defence, in our opinion, will not be of much advantage tot he prosecution. They have completely failed to explain the injuries of the defence. From their evidence it is not easy for us to discern how the Marpit initiated. They have claimed animosity with the accused persons but even that, in our opinion, has not been established in a proper manner. In the circumstances, we are of the opinion that it was a sudden quarrel in which both sides indulged into plying of their weapons like Lathis and Barchi by P. W. 1 Ram Babu. They have deliberately concealed the defence injuries and denied the defence suggestion regarding the actual manner of incident. Apart from ram Babu, the evidence of other witnesses, being almost identical in nature, cannot be relied upon to give a finding on the question of the manner and the reason behind initiation of the said incident. ( 19 ) A solitary skull injury resulted into the death of Sheo Ratan, a person aged about 50 years. A fissured fracture was caused underneath injury No. 1. Injury No. 3, a swelling on the right side of the skull around right ear was the consequence of injury No. 1 which was over the left ear on the skull. Clotting of blood became the root cause behind his demise. In all, it took about 3-1/2 hours for the prosecution to bring this injured for his medical examination. He remained unconscious all along despite medical attention. Clotting of blood became the root cause behind his demise. In all, it took about 3-1/2 hours for the prosecution to bring this injured for his medical examination. He remained unconscious all along despite medical attention. From the statement of P. W. 1 it appears that no initial attempt to provide him first any medical succor was made by the injured son, though all his injuries were simple. No. attempt by any of the witnesses was also made in this direction. The f. I. R. was registered at P. S. Akbarpur at 9. 45 a. m. Yet, it took his medical examination at the nearby P. H. C. an hour and a quarter. Admittedly, as claimed by P. W. 1, he stayed at the police station for nearly half an hour in the process of registration of the F. I. R. These factors have contributed greatly in the clotting of blood underneath his head injury. ( 20 ) BED head ticket of this deceased was brought on the record. He was brought to the Ursila hospital, Kanpur on 15. 6. 1979 at 4. 34 p. m. He was in an unconscious condition even now. It is admitted by P. W. 8 Dr. H. C. Prasad, the radiologist, that from an examination of the bed head ticket it transpires that the patient remained unconscious all along until his death. He was brought to the Ursila hospital, Kanpur on 15. 6. 1979 at 4. 34 p. m. He was in an unconscious condition even now. It is admitted by P. W. 8 Dr. H. C. Prasad, the radiologist, that from an examination of the bed head ticket it transpires that the patient remained unconscious all along until his death. ( 21 ) THUS, in the absence of any identification of the accused, who caused this head injury, it would not be safe for us to convict any of these appellants under Section 302 I. P. C. If we do not accept the defence version and we are of the opinion that the manner of assault is shrouded in mystery and the prosecution has not come out with clean hands then certainly we could have convicted these persons under Section 325/149 I. P. C. , but since we have already held that the prosecution had failed to establish beyond reasonable doubt the manner of incident, the motive behind the incident and also the participation of as many as 8 persons in this incident, looking to the number and nature of the injuries suffered on its side, it is difficult for us to uphold the conviction under Section 302/149 I. P. C. or to convict any one of these appellants for the offence of causing solitary fatal injury on the skull of the deceased. Had there been any identification of that person, we could have safely convicted him for causing such an injury if his intention to cause his death could be discarded. We have also held earlier in this judgment that it was a case of sudden quarrel. There could not be any common object to cause death of Sheo Ratan. The incident occurred so suddenly and the prosecution had not offered any explanation for the injuries of the defence, especially of Arjun, we are constrained to observed that, in our opinion, it is very unsafe to convict any of these appellants for any offence. They have claimed that they had assaulted these persons in the exercise of their right to private defence seems to us plausible in the facts and circumstances of the case, as discussed above. ( 22 ) THE prosecution examined P. W. 1 Ram Babu, P. W. 3 Ram Dass and P. W. 5 Rama as the three eyewitnesses of the incident. ( 22 ) THE prosecution examined P. W. 1 Ram Babu, P. W. 3 Ram Dass and P. W. 5 Rama as the three eyewitnesses of the incident. Out of these three, Ram Babu and Ram Dass are injured witnesses. Ram Dass is related to Ram Babu. He had only a solitary injury on the hand. Rest of the witnesses were formal and we have made reference to their testimony while dealing the evidence at relevant places. We have already held that these witnesses are guilty of suppression of truth from the court especially in regard to initiation of the Marpit, its manner and number of participants was apparently swelled by then to wreak vengeance. They had to stop construction of their walls due to resistance from the accused. Motive, therefore, was against. A small incident of damage to cow dung cakes was blown out of proportion by the prosecution to nominate. They tried to suppress the injuries of the defence. ( 23 ) IN the circumstances, we allow the appeal of the appellants and set aside their convictions under Section 147, 323/149, 325/149 and 302/149 I. P. C. They are acquitted of these charges. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are hereby discharges. . .