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2009 DIGILAW 3838 (ALL)

Sant Lal v. State of U. P.

2009-12-21

POONAM SRIVASTAV

body2009
JUDGMENT: Mrs. Poonam Srivastav, J. The instant appeal is preferred on behalf of seven appellants. All the appellants have been convicted by the Vth Additional Session Judge, Azamgarh vide judgment and order dated 9.4.1981 in Session Trial No. 45 of 1980-State Vs. Sant Lal and others. Appellant No. 4 Muneshwar and appellant no. 7 Smt. Balli are reported to be dead and their appeal stands abated vide order dated 6.2.2004. Appellant No. 1 Sant Lal and appellant No. 2 Saggho are sentenced under Section 148 I.P.C. to six months R.I. Under Section 324/149 I.P.C. to 15 and 13 months R.I. respectively. Appellant Nos. 1 to 6 to five years R.I. under Section 304 Part II I.P.C. under Section 324 and 149 I.P.C. to one year R.I. and four months R.I. under Section 147 I.P.C. All the sentences are directed to run concurrently. Sri Daya Shanker Mishra Advocate appeared on behalf of the appellants and learned A.G.A. for the State. 2. The Prosecution case in brief is that in front of the houses of Kallu and Santlal there is a field which jointly belongs to the 3 branches as mentioned above. There was a private partition. Kallu was allotted one third portion on the east. He raised barley crop in his eastern portion. There was some dispute between Kallu and Santlal regarding partition of fields. Santlal planned to cut Kallu's barely crop forcibly. Accused Ram Palat is SALA of Santlal. Santlal brought accused Ram Palat, Sagghoo, Ram Autar, Muneshwar and Ram Kishore for forcibly cutting barely crop. On 2.4.1977 at about 7.00 A.M. all these accused armed with Lathis and Gandasas entered the field and started cutting barely crop. Kallu, his wife Ramdeiya and his son Bachnu objected to it. All these accused abused them and chased them. Accused Santlal delivered a Gandasi blow on the head of Smt. Ramdeiya. Accused Sagghoo assaulted Kallu with Gandasi. After felling Ramdeiya and Kallu, the accused assaulted Bechnu. The village people arrived and intervened on the hue and cry raised. The prosecution side also wielded Lathis in their defence and thus the accused party also received some simple injuries. 3. The F.I.R. was lodged on the same day at 8.40 A.M. at Police Station Gambhirpur, Azamgarh under Sections 147, 148, 149, 323, 324, 307 I.P.C. by Bachchu Lal PW-1. The prosecution side also wielded Lathis in their defence and thus the accused party also received some simple injuries. 3. The F.I.R. was lodged on the same day at 8.40 A.M. at Police Station Gambhirpur, Azamgarh under Sections 147, 148, 149, 323, 324, 307 I.P.C. by Bachchu Lal PW-1. The police station is alleged to be at a distance of four miles North-West from the place of occurrence. Smt. Ramdeiya wife of Kallu and mother of first informant who had received injuries in the incident, died the very next day and thereafter the case was converted under Section 302 I.P.C. Injuries of Kallu was examined on the same day at 11.00 A.M. His injuries are detailed below:- Examined Sri Kallo S/o Jiyawan aged about 70 years. H.M. R/o Vill. Rafipur, P.S. Gambhirpur, Azamgarh on 2.4.77 at 11 A.M. B/B Sri Dukhram Pande, P. no. 354. M/I Old scan mark about one inch above the umblicus on the right side about 2" x 1" in size. Injuries:- I. Incised wound 7" x 1/2" x 3/4" in size about 1/2" right to the mid line and about 1 ½" about the root of the nose. II. Abraded contusion 3" x 1/4" in size on the outer surface of the left thigh. Colour red. III. Abrasion 1/2" x 1/4" in size on the back middle part of the left leg. Inj. No. I is caused by sharp weapon and kept under observation. Adv. X-ray and referred to District Hospital, Azamgarh for X-ray and treatment. Inj. No. II & III are simple in nature and caused by hard blunt object. Duration about 1/2 day. Sd/- Illegible L.T.I. of Sri Kallo. 2/4/77. Injuries of PW-1 Bachnu was examined at 11.30 A.M. on the same day. His injuries are also detailed herein below:- Examined Sri Bachnu s/o Kalli aged about 35 years. R/o Vill. Rafipur, P.S. Gambhirpur, Distt. Azamgarh on 2/4/77 at 11.30 A.M. Brought by Sri Dukhram Pandey C.P. No. 354 M/I-Small black mole about 1/4" above the left eye brow. Injuries:- I. Incised wound 3" x 1/4" x upto bone on the right side of the head about one inch above the right ear. Margins are well defined. Clotted blood is present. II. Incised wound 3/4" x 1/4" x 1/4" in size about 3" above the right wrist joint on the outer surface. Clotted blood is present. Injuries:- I. Incised wound 3" x 1/4" x upto bone on the right side of the head about one inch above the right ear. Margins are well defined. Clotted blood is present. II. Incised wound 3/4" x 1/4" x 1/4" in size about 3" above the right wrist joint on the outer surface. Clotted blood is present. All the injuries are simple in nature and caused by sharp weapon. Duration within 1/2 day. Attested. Sd/- Illegible. L.T.I. 10/4/77 Bachnu M.O. Attested P.H.C. Mohammadpur Sd/- Illegible Azamgarh. 2/4/77. 10/4/77. Post mortem on the body of deceased Smt. Ramdeiya was performed on 3.4.1977 at 9.00 A.M. Ante-mortem injuries as shown in the post mortem report are detailed herein below:- Ante mortem Injuries. 5. Incised wound 5 ½" x 1/2" x bone deep on the top of head, Frontal Bone and left parietal bone in cut and Brain matter is coming out, 6. Bones and joints 7. External organs of generations: 8. Addl. Remarks. Kha INTERNAL EXAMINATION 1. Head & Neck 1. Bones of scalp and skull : inj. no. (1) 2. Membranes : Lacerated under inj. no. (1) 3. Brain : Lacerated and 4. Base of skull : Full of Blood. 5. Vertebrae : 6. Spinal Cord : Not opened. 7. Addl. remarks : 2. Thorax A) Walls, ribs & cartilages : NAD B) Pleura : NAD C) Larynx, trachea & Bronchi : NAD D) Right Lung : NAD E) Left Lung : NAD F) Pericardium : NAD G) Heart with Weight : NAD, 160 Gm. H) Large Vessels : NAD I) Addl, remarks : NAD 3. Abdomen 1. Walls : NAD 2. Peritoneum : NAD 3. Cavity : NAD 4. Buccal Cavity, teeth, : NAD tongue & pharynx 5. Oesophagus : NAD 6. Stomach and its contents : Empty 7. Small intestine and its contents : Facces and gases 8. Large intestine and its contents : Facces and gases 9. Liver with Wt. & Gall Bladder : 800 Gm, NAD 10. Pancreas : NAD 11. Spleen with Wt. : NAD 100 Gm 12. Kidneys with Wt. : NAD 120 Gm 13. Bladder : Empty 14. Organs of generation : NAD Cha. Opinion as to cause and : Coma & shock and haemorrhage due manner of death. : to head inj. Place: Azamgarh Date: 3/4/77 Sd/- Illegible Medical Officer (Dr. Pancreas : NAD 11. Spleen with Wt. : NAD 100 Gm 12. Kidneys with Wt. : NAD 120 Gm 13. Bladder : Empty 14. Organs of generation : NAD Cha. Opinion as to cause and : Coma & shock and haemorrhage due manner of death. : to head inj. Place: Azamgarh Date: 3/4/77 Sd/- Illegible Medical Officer (Dr. T.N. (P.T.) A cross case was also registered on the same day under Sections 147, 148, 149, 323, 324, 307 I.P.C. at 2.40 P.M. by appellant Sant Lal against accused Kallu, Bachchu and deceased Ramdeiya. All the seven appellants have received injuries in the said incident (cross case) and their injury reports are Ex. Kha-2 to Kha-8. Examined Sri Saghoo s/o Kukhanti aged about 50 years. H.M. R/o Majganwan, P.S. Nizamabad, district Azamgarh on 2.4.77 at 3 P.M. Brought by Sri Jai Murat Pande, S.I. Gambhirpur. M/I- Old scar mark 1 ½ " x 1/4" in size on the outer surface of the right elbow joint. Duration- Within 1/2 day. Injuries: 1. Incised wound 2 ½" x 1/2" in size on the right side of the head about 4" above the right ear. Margins are well defined and clotted blood is present, and antro posterior in direction. 2. Incised wound 1" x 1/4" x 1/4" in size on the right side of the head about 4" above the root of the nose, transverse in direction, clotted blood is present. 3. Penetrating wound 1/2" x 1/4" x 3/4" in size about 2 ½" below the right elbow joint on the back surface. 4. Contusion 3" x 1 ½" in size in the middle of the thigh on the outer surface and red in colour. 6. Injuries no. 1 and 2 caused by sharp weapon and no. 3 by sharp pointed weapon, 4 by blunt object. Patient is referred to district hospital Azamgarh for X-ray of the skull and for confirmation of the nature of wound. Sd/- Illegible. L.T.I. of Seal. Sri Saghoo. Attested Attested Sd/- Illegible Sd/- Illegible 17/3/81 Seal. Medical Officer P.H.C. Mohammadpur Azamgarh. Examined Sri Sant Lal s/o Sri Banshi Ram aged about 20 years. H.M. R/o Rafipur, P.S. Gambhirpur, district Azamgarh on 2.4.77 at 3.30 P.M. Brought by Sri Jai Murti Pandey, S.I. Gambhirpur. M/I- One small black mole on the right cheek about one inch in front to the right ear. Injuries:- 1. Medical Officer P.H.C. Mohammadpur Azamgarh. Examined Sri Sant Lal s/o Sri Banshi Ram aged about 20 years. H.M. R/o Rafipur, P.S. Gambhirpur, district Azamgarh on 2.4.77 at 3.30 P.M. Brought by Sri Jai Murti Pandey, S.I. Gambhirpur. M/I- One small black mole on the right cheek about one inch in front to the right ear. Injuries:- 1. Contusion 4" x 1 " in size on the middle part of the left shoulder blade. Transverse in direction. 2. Contusion 7" x 1/2" in size about one inch medial to the injury no. 1. 3. Contusion 3" x 1" in size about one inch below the injury no. 2. 4. Contusion 1 ½" x 1/2" in size about one inch lateral to injury no. 3. 5. Contusion 8" x 1" in size about 7 ½" below the lower angle of the right shoulder blade. 6. Contusion 4" x 1" in size about 4" below injury no. 5. 7. Contusion 2" x 1" in size about 3" above the right wrist. 8. Contusion 2" x 1" in size on the outer surface of the upper part of right thigh. Colour of contusions are red. All are simple in nature. Caused by blunt weapon. Duration-Within 1/2 day. Sd/- Illegible. Seal. L.T.I. of Sri Attested Sant Lal Sd/- Illegible. Attested 17.3.81 Sd/- Illegible. M.O. Seal. P.H.C. Mohammadpur Azamgarh. 7. Examined Sri Ram Palat s/o Sri Gulloo aged about 17 years. H.M. R/o Bahadipur, P.S. Kotwali, District Azamgarh on 2.4.77 at 4 P.M. Brought by Sri Jai Murti Pandey, S.I. Gambhirpur. M/I- Old scar mark about one inch in length on the chin. Injuries:- 1. Contusion 2" x 1" in size upper part of the right shoulder. 2. Contusion 3" x 1" in size about one inch below injury no. 1. 3. Contusion 2 ½" x 1" in size about 1 ½" below injury no. 3. 4. Contusion 3 ½" x 1" in size about 4" below injury no. 3. 5. Contusion 3" x 1" in size on the upper part of the left shoulder blade. 6. Contusion 3 ½" x 1" in size about one inch below injury no. 5. 7. Contusion 1 ½" x 1" in size about 3" below injury no. 6. 8. Contusion 2" x 1" in size about 2 ½" below injury no. 7. 9. Contusion 3" x 1" in size about 3 ½ below injury no. 8. 10. 6. Contusion 3 ½" x 1" in size about one inch below injury no. 5. 7. Contusion 1 ½" x 1" in size about 3" below injury no. 6. 8. Contusion 2" x 1" in size about 2 ½" below injury no. 7. 9. Contusion 3" x 1" in size about 3 ½ below injury no. 8. 10. Contusion 1 ½" x 1" in size about 3" above the left wrist joint. 11. Abraded contusion 3/4" x 1/4" in size at the lower part of the right nose. Colour of the contusions are red. All the injuries are simple in nature and caused by blunt object. Duration within 1/2 day. Sd/- Illegible. Seal. L.T.I. of Sri Ram Palat Attested Attested Sd/- Illegible Sd/- Illegible. 17.3.81 Seal. Medical Officer P.H.C. Mohammadpur Azamgarh. 8. Examined Sri Muneshar, s/o Baidnath aged about 60 years, H.M. r/o Bahadurpur, P.S. Kotwali, district Azamgarh on 2.4.77 at 4.30 P.M. Brought by Sri Jai Murti Pandey, S.I. Gambhirpur. M/I- One black mole on the right side of the neck on the lower part. Injuries: 1. Penetrating wound 1/2" x 1/4" x 1/2" in size about 3" above the left wrist joint on the outer surface. 2. Penetrating wound 1" x 1/5" x 1/4" in size on the inner surface of the left leg in the middle. 3. Penetrating wound 1/2" x 1/5" x 1/4" in size about 3" below right knee joint on the inner surface. 4. Penetrating wound 1/4" x 1/6" x 1/2" in size on the lower part of the left leg on the back surface of left ankle joint. 5. Contusion 3" x 1" in size on the upper part of the left shoulder blade. 6. Contusion 2 ½" x 1" in size about 3" below injury no. 5. 7. Contusion 2" x 1" in size about 7" below injury no. 6. 8. Contusion 3" x 1" in size in the middle part of the right shoulder blade. 9. Contusion 2" x 1" in size about 2" below injury no. 8. Colour of the contusion are red. All the injuries are simple in nature. Injury no. 1 to 4 caused by sharp pointed weapon and rest are caused by blunt object. Duration- within 1/2 day. L.T.I. of Sri Muneshar Sd/- Illegible. Attested. Seal. Sd/- Illegible. Attested. Sd/- Illegible. 17/3/81 Medical Officer P.H.C. Mohammadpur Azamgarh. 9. 8. Colour of the contusion are red. All the injuries are simple in nature. Injury no. 1 to 4 caused by sharp pointed weapon and rest are caused by blunt object. Duration- within 1/2 day. L.T.I. of Sri Muneshar Sd/- Illegible. Attested. Seal. Sd/- Illegible. Attested. Sd/- Illegible. 17/3/81 Medical Officer P.H.C. Mohammadpur Azamgarh. 9. Examined Sri Ramautar Singh, s/o Indradeo Singh aged about 27 years, H.M. R/o Majgawan, P.S. Nizamabad, District Azamgarh on 2.4.77 at 5 P.M. Brought by Sri Jai Murti Pande, S.I. Gambhirpur. M/I- Old scar mark of one inch length oblighually on the left side of the fore head about 3 cm above the left eye brow. Injuries: 1. Lacerated wound 1 ½" cm x 0.3 cm x muscle deep about one cm above the right eye brow. 2. Abraded contusion 3 ½" cms. x 1/2 cm. x 2 cms in the midline back of the head 7 cms above the occiput. 3. Patchy contusion 14 cms x 5 cms on the outer surface of the right upper arm about 8.5 cms above to the right elbow joint and 5.5 cms below the joint. 4. Abraded contusion 11 cms x 2 cms on back and middle of the right fore arm 3.5 cms below the right elbow joint. 5. Traumatic swelling 6 cms x 7 cms on outer half of right foot. 6. Traumatic swelling 6 cms x 4 cms on the back in the inner side of left palm-kept under observation. Colour of the contusion-red. Duration within ½ day. All the injuries are caused by blunt object. Injury no. 1 to 4 are simple in nature and 5 to 6 are kept under observation. Advised X-ray of the left palm and right foot. L.T.I. of Sri Ramautar, Sd/- Illegible. Attested. Seal. Sd/- Illegible. Attested Sd/- Illegible 17/3/81 Medical Officer P.H.C. Mohammadpur Azamgarh. Examined Sri Ram Kishor, s/o Baran aged about 40 years H.M. R/o Bahadurpur, P.S. Kotwali, district Azamgarh on 2.4.77 at 5.30 P.M. Brought by Sri Jai Murti Pandey, S.I. Gambhirpur. M/I- Single black mole on the left side of the seek on the lower part neck 3 cms above the inner end of the left clavib. Injuries:- 1. Horizontal Lacerated wound 2.5 cms x 0.5 cm x scul deep on the left side of the head. 2. Contusion 3.5 cms x 2.5 cms on the left side of the lower jaw. 3. Injuries:- 1. Horizontal Lacerated wound 2.5 cms x 0.5 cm x scul deep on the left side of the head. 2. Contusion 3.5 cms x 2.5 cms on the left side of the lower jaw. 3. Abraded contusion 4 cms x 2.5 cms on the upper part of the left shoulder blade. Colour of the contusion-red. Duration within 1/2 day. All the injuries are simple in nature and caused by blunt object. L.T.I. of Sri Ram Kishor Sd/- Illegible. Attested Seal. Sd/- Illegible. Attested Sd/- Illegible. 17/3/81 Medical Officer. P.H.C. Mohammadpur Azamgarh. Examined Smt. Beli w/o Merhi Ram aged about 40 years, H.M. R/o Rafipur, P.S. Gambhirpur, district Azamgarh, on 2.4.77 at 6 P.M. Brought by Sri Jai Murti Pande, S.I. Gambhirpur. M/I- Single black mole on left side face 3 cms below and in front of the left tragus. Injuries: 1. Penetrating wound 1.5 cms x 0.4 cm x 1.5 cms on the back and outer side of the left hand at the base of the left thumb. 2. Contusion 4 cms x 3.5 cms on the inner surface of the right knee joint. 3. Contusion 10 cms x 2 cms in the right back below the right shoulder blade. 4. Oblique contusion 11.5 cms x 2 cms on lower part of the left side back about 13 cms below the left shoulder blade. 5. Complain of pain on the upper part and the left thigh. Colour of the contusion-red. Duration-within 1/2 day. All the injuries except no. 5 are simple in nature and caused by blunt weapon. L.T.I. of Smt. Beli Sd/-Illegible Attested Seal. Sd/- Illegible. Attested Sd/- Illegible 17/3/81 Medical Officer P.H.C. Mohammadpur, Azamgarh. 10. Charge was framed under Section 302 I.P.C. along with other offences of Indian Penal Code. Prosecution examined as many as 8 witnesses. Bachnu PW-1, Bachchu PW-2 and Manogi PW-3. These are eye witnesses. Formal witnesses are Head Constable R. S. Singh PW-4, Dr. T.N. Sinha PW-5, S.I. J.M. Pandey PW-6, Shri Kant Pandey PW-7 and Dr. M.A. Salam PW-8 who had examined injuries. Police had submitted charge sheet in the cross case instituted by appellant Sant Lal but the accused namely Kallu, Bachnu and Bachchu were given acquittal on the ground of right of self defence. T.N. Sinha PW-5, S.I. J.M. Pandey PW-6, Shri Kant Pandey PW-7 and Dr. M.A. Salam PW-8 who had examined injuries. Police had submitted charge sheet in the cross case instituted by appellant Sant Lal but the accused namely Kallu, Bachnu and Bachchu were given acquittal on the ground of right of self defence. Sri Daya Shanker Mishra challenged the judgment of conviction awarded to the appellants on a number of grounds:- The first point raised is that according to the prosecution story itself, Lathi blows were given to the accused but the injuries found on the body of the appellants disclosed that total number of injuries received on the side of the accused are 42 in number including penetrating and incised injuries. There is no explanation of penetrating as well as incised wounds. The injuries received on the side of the deceased are much less in number. Besides, injuries caused to Saggho were on vital part and according to the doctor, he has admitted that the said injuries could have been dangerous to life. There is no explanation regarding use of such weapon which could inflict penetrating and incised wounds. Besides the number of injuries are sufficient to establish that in fact the appellants are entitled for the benefit of right of private defence. 11. Next argument advanced is that the F.I.R. is ante-timed for the reason that name of the first informant is missing from the inquest report and PW-1 has admitted in his statement that the F.I.R. was lodged at sometimes late at night after returning from the hospital. He has also admitted in his cross examination that he returned from the hospital at about 6.00-7.00 P.M. and they were at the police station the entire night. Investigating Officer has further stated that there was no Majrubi Chitthi at the time when the deceased Ramdeiya was alive and was sent for her medical treatment coupled with the fact that copy of the F.I.R. and other documents were not sent along with dead body at the time of post mortem. He has also admitted that in the inquest report do not mention 'State Vs. Sant Lal' i.e name of the accused. The next argument is that alleged eye witnesses PW-2 and PW-3 were not present at the time of occurrence. He has also admitted that in the inquest report do not mention 'State Vs. Sant Lal' i.e name of the accused. The next argument is that alleged eye witnesses PW-2 and PW-3 were not present at the time of occurrence. They have not received any injury and several extracts of their statements has been pointed out to demonstrate that they were not present. It is also submitted that though the learned Session Judge has accepted recovery of the weapons i.e. Garasi and Lathi but the evidence completely belies the said recovery. The submission regarding investigation is that full of flaws and tainted. A complete reading of the statements of eye witnesses as well as Investigating Officer makes it abundantly clear that the prosecution witnesses are not reliable and cannot be accepted. It is further argued that while granting right of private defence in cross case, the court was led away by the fact that Ramdeiya succumbed to her njuries whereas injuries on the face of it were not of such a nature which could normally cause death, on the contrary, the injuries of the appellants are quite serious in nature. 12. Learned A.G.A. has disputed each and every arguments of the learned counsel for the appellants and has tried to substantiate that the judgment of the learned Session Judge is fully justified and evidence adduced by the prosecution sufficiently proved its case. I have given a careful consideration to the arguments advanced by the respective counsels and scrutinized the evidence on record. Prosecution story as disclosed in the F.I.R. admits wielding Lathi blows on the accused and it further mentions that simple injuries were caused to the assailants. Two persons other than the deceased have received injuries on the prosecution side. Kallu, father of PW-1 and husband of deceased has not been produced during the trial. However, his injury report shows that he has received three injuries out of which injury nos. 2 and 3 are reported to be simple in nature. However, injury no. 1 which is incised wound, 7" x 1/2" x 3/4" in size about 1/2" right to the mid line and about 1 ½" about the root of the nose was kept under observation. There was no supplementary medical report to substantiate that any X-ray was conducted but it is apparent that injury no. 1 was caused by a cutting weapon. 1 which is incised wound, 7" x 1/2" x 3/4" in size about 1/2" right to the mid line and about 1 ½" about the root of the nose was kept under observation. There was no supplementary medical report to substantiate that any X-ray was conducted but it is apparent that injury no. 1 was caused by a cutting weapon. As alleged by the prosecution that Garasi was used, I am of the view that injury no. 1 could have been caused by it. So far injuries of Bachnu is concerned, two injuries have been received and are reported to be simple in nature. However, all the seven appellants have received injuries. Injuries of accused Saggho shows that there are two incised wounds, one penetrating and one contusion. Similarly Muneshwar appellant (now deceased) has received 4 penetrating wounds and 5 contusions. Appellant Ram Autar has received one lacerated injury and rest are abraded contusions. Smt. Balli has received one penetrating injury which is completely unexplained. Perusal of evidence of Dr. M.A. Salam PW-8 shows that he had admitted in paragraph 10 of his statement that incised injuries can be caused by Garasi and penetrating injury can be caused by Ballam, rest of them are lathi injuries. He has further admitted that injury nos. 1 and 2 of accused Saggho is on vital part and could have been proved dangerous to life. He has also admitted that S.I. Jai Murti Pandey PW-6 was in the hospital from 3.00 P.M. to 6.00 P.M. and before he examined injuries of the accused, it was Jai Murti Pandey who identified each of them. He also received injury report on the same day but subsequently he had received an information from the police station that injury report of PW-1 Bachnu was not received along with other injury reports. He has also admitted that Kallu, husband of the deceased (not examined) had received only one injury. 13. Learned counsel has placed this part of the statement of the doctor in support of his argument and submitted that since a number of injuries received by accused were mentioned more than the injuries received on the side of the first informant. He has also admitted that Kallu, husband of the deceased (not examined) had received only one injury. 13. Learned counsel has placed this part of the statement of the doctor in support of his argument and submitted that since a number of injuries received by accused were mentioned more than the injuries received on the side of the first informant. Learned Session Judge while coming to a conclusion that the accused party must have made prior preparation for commission of offence is without any basis and has disbelieved the cross version only because it is difficult to believe that Kallu, who is an old man and his two sons along with his wife could have caused 42 injuries on the side of the accused. He has completely overlooked the statement of the doctor who has examined the injuries on the side of the accused as well as injuries of the injured and has also proved the said injuries. Learned Session Judge has failed to give any finding on the question that whether first informant was aggressor or the accused ? I am not in agreement with the findings that a number of injuries makes the defence story highly doubtful. The argument of the defence counsel that PW-2 and PW-3 were not present at the scene of occurrence is on the basis that though 7 persons have come to cause injury but only scratch was received by PW-2 and PW-3. Besides, extract of the statement also belies their presence. It is also noteworthy that he has stated in his cross examination, out of three persons who had received injuries, none of them caused any injury in retaliation but his brother Bachchu had given one or two lathi blows on the accused. In the same breath PW-1 has stated that they had gone to the field of the accused empty handed without any weapon. The story has subsequently been developed during the trial to explain the number of injuries on the accused that villagers who had come to their rescue, had given severe beating to the accused. When questioned as to why he has not disclosed this fact at any stage of investigation previously, he has tried to wriggle out by saying that police would have taken into custody who had come there to help them. When questioned as to why he has not disclosed this fact at any stage of investigation previously, he has tried to wriggle out by saying that police would have taken into custody who had come there to help them. He was not even able to give details of the assailants that which of the accused had beaten to the individual injured witnesses. He has also tried to evade the questions of cross examiner by saying that he had not seen himself that villagers had given beating to the accused. Several other questions regarding new discloser during the trial which he has failed to state before the Investigating Officer, is without any explanation. He has also changed the role of accused Balli and Ram Autar. He has stated that both of them were standing near Well and only exhorting the accused. Though he has stated that several Garasi blows were given to him and he had also received Garaasi injury but the medical report belies this statement. Deceased had also received a single blow only but as she was old it caused her death. So for PW-2 has not been able to give any satisfactory answer put to him in cross examination and explanation given is that he has a headache and, therefore, he is not able to give answer to the question put to him during the trial. Besides, he has also admitted that he used to live at his Nani's place since he was 5-6 years of age. A complete reading of the entire evidence of PW-2 does not inspire any confidence. It is apparent that he has given contradictory statement and is evident that he is not telling the true facts. He is a got-up witness and I am of the considered view that he is not a reliable witness. So far the recovery of blood stained Garasi and Lathi is concerned, it is once again admitted by PW-3 that Garasi and Lathi were snatched away from the accused and it was kept in front of the door of Sant Lal whereas recovery memo shows that it was recovered from inside of the house of Sant Lal. I am not inclined to believe the recovery as the Investigating Officer clearly stated that no case under the provisions of Arms Act was registered against Sant Lal who is alleged to have been in possession of illicit weapons. I am not inclined to believe the recovery as the Investigating Officer clearly stated that no case under the provisions of Arms Act was registered against Sant Lal who is alleged to have been in possession of illicit weapons. The said weapons alleged to have been recovered and in respect of which recovery memo was prepared, was never sent along with accused. Besides, the Investigating Officer submits that Lathi and Garasi were broken into several pieces before a recovery memo was prepared and also blood stained alleged to be present on the Garasi were not sent for analysis to the Serologist. 14. So far the tainted investigation by the Investigating Officer is concerned, no doubt Sri Daya Shanker Mishra has pointed out several irregularities and anomalies such as non mentioning the name of first informant as well as name of the accused on the inquest, no document having been sent along with dead body when it was sent for post mortem and several other discrepancies which completely negates theory propounded by the prosecution and story disclosed by the first informant and witnesses in the witness box but as the Apex Court has clearly expressed its view in several decisions that flaw in the investigation should not be the only reason to let of the assailants if the eye witness is reliable. 15. Learned Session Judge has not taken into consideration the fact as to who was the aggressor, though from the perusal of the statements, it is evident that the deceased and injured had come to the field of the accused and a sudden altercation started coupled with the fact that number of injuries caused on the side of the first informant is definitely for more in number but I refrain from giving my opinion as to who was the aggressor. Though the circumstance speaks volume in the instant case, besides, right of private defence, the entire prosecution version regarding time of lodging of the F.I.R. has rightly been disputed and it appears that the F.I.R. was not lodged at the time it is claimed by the prosecution. It has come in existence at a later time after due deliberation and consultation. Recovery of weapon as alleged is also not believeable. Presence of eye witness PW-3 does not inspire any confidence. It has come in existence at a later time after due deliberation and consultation. Recovery of weapon as alleged is also not believeable. Presence of eye witness PW-3 does not inspire any confidence. As I had already stated above, he was not present and there being no explanation on the side of the prosecution regarding injuries of the accused specially on the face of admission of the doctor that injuries were caused on vital part, I do not think that the appellants deserve a judgment of conviction. I am of the considered view that the prosecution has failed to establish its case beyond doubt as already discussed above. In the circumstances, the judgment of conviction to the appellants deserves to be set at naught. 16. For the reasons stated above, the judgment dated 9.4.1981 passed by Vth Additional Sessions Judge, Azamgarh in Session Trial No. 45 of 1980 is set aside. The appeal is allowed. The appellants are acquitted. They need not surrender. Sureties are discharged.