JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—The instant appeal was preferred against judgment and order dated 23.12.1980 passed by III Additional District and Sessions Judge, Bareilly, in Session Trial No. 312 of 1979 whereby appellants Mahendra Pal Singh, Om Pal Singh and Rajendra Singh were convicted under Sections 307/34 I.P.C. and sentenced to undergo five years R.I. Accused Ram Babu Singh was acquitted. 2. During pendency of appeal, accused-appellant Mahendra Pal Singh died. Appeal in respect of accused-appellant Mahendra Pal Singh, abated vide order dated 20.1.2004. 3. Heard Sri Satish Trivedi, Senior Advocate, assisted by Sri A.K. Pandey, Advocate, on behalf of the two appellants namely Om Pal Singh and Rajendra Singh and learned A.G.A. for the State. 4. Admittedly, occurrence is outcome of a dispute over title and possession of plot No. 413 between Lal Singh and Smt. Chameli Devi, mother of accused Mahendra Pal Singh, which was previously recorded in the name of Smt. Ram Pyaree wife of Man Singh. Both parties claimed possession over the said plot, which is situated near house of Lal Singh and accused Mahendra Pal Singh. Accused and first informant are neighbours. There is only an intervening Rasta. 5. The occurrence is alleged to have taken place on 15.7.1978 at 5:45 a.m. First information report was registered against appellants on the same day at 6:30 a.m. at Police Station Bithrichainpur, District Bareilly. Police station is situated 3 miles away from place of occurrence. First Information Report was lodged by PW-1, Narain Singh. There are two injured namely Gajju Singh Tau of first informant and Lal Singh. 6. Sri A.K. Pandey, has brought to my notice that there is a cross case in which fourteen persons were named as accused, and the same was lodged by one Ram Babu Singh, who was acquitted by III Additional District and Sessions Judge. First information report was registered on the same day at 6:40 a.m. under Sections 147, 148, 149, 323, 436, 452, 325 I.P.C. P.S. Bithrichainpur, District Bareilly, giving rise to another Session Trial No. 321 of 1979. 7. However, both the trials were not clubbed and decided together. First information report of cross case is exhibited as Ex. Kha-3. In the cross case, two persons namely Mahendra Pal Singh (dead) and Longshree Devi are said to have received injuries. Their injuries are exhibited as Ex. Kha-14 and Ex. Kha-15. 7. However, both the trials were not clubbed and decided together. First information report of cross case is exhibited as Ex. Kha-3. In the cross case, two persons namely Mahendra Pal Singh (dead) and Longshree Devi are said to have received injuries. Their injuries are exhibited as Ex. Kha-14 and Ex. Kha-15. Injuries of injured PW-2 Gajju Singh and PW-3 Lal Singh examined by Dr. V.K. Endlay, PW-8 on 15.7.1978 at 10:55 a.m. and 11:20 a.m. are quoted respectively hereinbelow. 1. M.I. A black mole on the front of Rt. forearm 7 cm below Rt. elbow joint. Injuries : (1). Multiple gun shot wound in an area 7 cm x 5 cm on the Rt. side chest 3 cm below Rt. clavicle. No exit average size 1 cm x 1 cm x cavity deep. No blackening or charring surgical (sic) Present Adv. X-ray. Inj. is under observation caused by some projectile discharged from firearm. Duration : About four hours old. Edge joint clear appearance. Opinion : g.c. low. Pt. Admitted. 2. M.I. A raised mole on the left side from ½ away from left nostril. Injuries : (1) Gun shot wound 1 cm x 0.5 cm x muscle deep on the right side face. 4 cm away from Rt. ear. No blackening or charring, no exit adv. X-ray. (2) Gun shot wound ½ cm x ½ cm x muscle deep on the Rt. side from 1/2 cm away from Rt. eye. No blackening or charring no exit adv. X-ray. (3) Abrasion ½ cm x ½ cm on the upper part of pinna of Rt. ear. (4) Abrasion ½ cm x ¼ cm on the lobule of Rt. ear. (5) Gun shot wound & multiple in an area 3 cm x 1 cm on the front of right shoulder 4 cm above Rt. clavicle. No exit no blackening or charring av. Size ¼ cm x ¼ cm Adv. X-ray. (6) Lacerated wound 1 cm x ½ cm on the back of left forearm 7 cm below left elbow Jt. (7) Lacerated wound 1 cm x ½ cm on the Lt. side head 8 cm above Lt. ear. Injury Nos. 1, 2 and 5 under observation caused by some projectile discharged from firearm. Injury Nos. 6 and 7 by some blunt object rest by friction. Duration : Fresh. (7) Lacerated wound 1 cm x ½ cm on the Lt. side head 8 cm above Lt. ear. Injury Nos. 1, 2 and 5 under observation caused by some projectile discharged from firearm. Injury Nos. 6 and 7 by some blunt object rest by friction. Duration : Fresh. Injuries of Mahendra Pal Singh and his wife Longshree Devi, sustained in cross case, examined by Dr. R.N. Singhal, DW-3 on 15.7.1978 at 9:15 a.m. and 9:45 a.m. are quoted respectively hereinbelow : 1. M.I. Black mole present over the left side of forehead, 4 cm above the left eyebrow. Injuries : (1) Lacerated wound size about 2.5 cm x .5 cm. x skin front over the occipital region of left side of skull 10 cm above the left ear. (2) Contusion size 4 cm x 3 cm present over the left side of forehead just above the left eyebrow. (3) Contusion size about 2 cm x 1.5 cm present over the joint of Ist and 2nd metacarpal bone or right ring finger of left hand X-ray advised. (4) Contusion size about 2 cm x 1.5 cm present over the joint of 1st and 2nd metacarpal bone of middle finger on left hand. X-ray advised. (5) Contusion size about 4 cm x 2 cm present over the medial side of left wrist joint X-ray advised. (6) Lacerated wound 1.5 cm x .25 cm skin deep present over the left hand in between the web space of ring finger and middle finger in left hand. Nature : Simple except injury Nos. 3, 4 and 5 for which X-ray advised. Duration : Fresh within 6 hrs. Weapon : Blunt object for injury Nos. 1 and 6, hard object for injury Nos. 2, 3, 4 and 5. 2. M.I. : Brown mole present over the left side of tip of nose. Injuries : (1) Liner contusion mark size about 8 cm x 2.5 cm front over the back just below the neck. (2) Abrasion size about 4 cm x 1 cm present over the front of neck extending from crocoid? Cartilage up to the Rt. sternomastoid muscle. (3) Contusion size about 8 cm x 2.5 cm present over the left side of lower back. (4) Contusion size about 4 cm x 2.5 cm print over the Rt. hip joint. (5) Contusion present over the Lt. hip joint. size about .5 cm x 2 cm. Cartilage up to the Rt. sternomastoid muscle. (3) Contusion size about 8 cm x 2.5 cm present over the left side of lower back. (4) Contusion size about 4 cm x 2.5 cm print over the Rt. hip joint. (5) Contusion present over the Lt. hip joint. size about .5 cm x 2 cm. Nature : Simple. Duration : Fresh. Weapon : Hard object firing No. 1, 3, 4 and 5 hard object firing 2. 8. The prosecution examined as many as 8 witnesses. Narain Singh PW-1 proved first information report. Gajju Singh PW-2 and Lal Singh PW-3 are injured witnesses. Raghuvir Singh PW-4, eye-witness and named in the first information report, is said to have witnessed the incident. Sri Hari Saran Singh PW-5, and Sri S. Wahid Uddin Naqwi PW-7 are two Investigating Officers. Sukhvir Singh PW-6, proved chik and Dr. V.K. Endle PW-8 proved injuries of the two prosecution witnesses. 9. Defence examined Azhar Ali DW-1, Suresh Chand Awasthi DW-2 and Dr. R.N. Singhal DW-3. 10. First argument of counsel for appellants is that there are three independent witnesses named in the first information report namely Natthu son of Dori, Jagat Pal Singh son of Mathura Singh and Raghuvir Singh son of Sunder Singh. Natthu and Jagat Pal Singh were not examined. The independent witness of fact, Raghuvir, was declared hostile. Thus, there is no independent evidence to support the prosecution case especially in the admitted position when a long standing enmity is not disputed. 11. The fact that injuries were received on the side of accused including wife of Mahendra Pal Singh, who was inside the house, makes it evident that they had come in the house to cause damage and injuries and it was the complainant himself who is to be blamed for the incident. Besides, prosecution has not come forward and explained injuries caused on the side of accused. 12. On perusal of the first information report, it transpires that there was no whisper of the fact that they had used force to save them and ward off the accused. Thus, the origin of quarrel is not disclosed on the contrary it appears that the complainant and prosecution witnesses attempted to conceal some facts. 12. On perusal of the first information report, it transpires that there was no whisper of the fact that they had used force to save them and ward off the accused. Thus, the origin of quarrel is not disclosed on the contrary it appears that the complainant and prosecution witnesses attempted to conceal some facts. Prosecution has not come forward with a clear case, on the face of it, it appears tainted and non revelation of the injuries on the side of accused will lead to a necessary conclusion that prosecution has not definitely tried to plug the loopholes. Use of Kanta in the first information report as well as in the statement of witnesses also stand falsified from the injury report. It does not show that there is any supplementary injury report to arrive at a conclusion that injuries were dangerous to life. 13. Learned A.G.A. while replying and disputing arguments advanced on behalf of appellants, has tried to demonstrate that it was a case of free fight between two parties. Both of them indulged in criminal activities, therefore, appellants cannot be left completely unpunished. However, when there is a question to establish where prosecution has come forward with theory that they had used force to ward off the assault from the accused and the fact that record is completely silent on this aspect, I am left with no option. Necessary conclusion is that complete facts were not disclosed, therefore, definitely there is an element of doubt in the prosecution case. It is the accused alone, who will derive benefit of this lacuna on the part of prosecution. 14. The Apex Court in the case of Babu Ram and others v. State of Punjab, JT 2008 (2) SC 384, pointed out that omission on the part of prosecution to explain injuries on person of the accused assumes much greater importance where evidence consists of interested or inimical witnesses or where defence gives a version which appears to be more probable from one of the prosecution case. No doubt, question of self defence was not argued before the Court below but that alone will not disentitle the accused completely and negate the admitted injuries on them. 15. No doubt, question of self defence was not argued before the Court below but that alone will not disentitle the accused completely and negate the admitted injuries on them. 15. It was held in the case of Satya Narain Yadav v. Gajanand and another, JT 2008 (8) SC 432, that if circumstances show that right of private defence was legitimately exercised, it is open to the Court to consider such a plea. 16. In the circumstances, I am of the view that facts of the present case are squarely covered, therefore, accused are entitled to this benefit as well. I am though conscious of the fact as brought to my notice that cross case has ended in conviction and imposition of fine but both cases were not tried together. Learned III Additional District and Sessions Judge has given a clear acquittal to Ram Babu Singh, who is first informant of cross case. He admitted that he had a gun from which he made aerial fire. This fact was also admitted in the present case by eyewitness, therefore, conviction of appellants is uncalled for. The prosecution has tried to withhold certain facts whereby it is sufficient to hold that since complete facts and origin of fight were not clear from evidence brought on record, benefit granted to Ram Babu Singh is also to be accorded to the other accused. 17. For the reasons discussed above, judgment and order dated 23.12.1980 passed by III Additional District and Sessions Judge, Bareilly, in Session Trial No. 312 of 1979, is set at naught. Bail bonds as well as sureties of appellants are discharged. The appeal is allowed. ————