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2011 DIGILAW 2840 (ALL)

Chhotey Singh and others v. State of U. P.

2011-12-14

VINOD PRASAD

body2011
Vinod Prasad, J.:- Nine appellants Chhotey Singh A-1, Samai Singh A-2, Bani Singh A-3, Gajendra A-4, Ompal A-5, Nawab Singh A-6, Veer Singh A-7, Prempal Singh A-8 and Hari Raj A-9 have come up to this court challenging their convictions and sentences recorded by IInd Additional Session's Judge, Bulandshahr in S.T. No. 287 of 1980,State Vs. Chhote Singh and others, P.S. Anupshahr, District Bulandshahar. All the appellants but for A-3 and A-5 have been convicted u/s 147 IPC while A-3 & 5 have been convicted u/s 148 IPC. Jointly all the appellants have been convicted u/s 452, 304(II)/149 IPC. For the offence under Section 147 IPC 1 ½ years RI, u/s 148 I.P.C. 2 years RI, u/s 452 2 years RI and u/s 304(II)/149 10 years RI are the imposed sentences. All the sentences have been ordered to run currently. 2. Background facts, as was informed to the police through written report Exhibit Ka-1 coupled with Chik FIR Exhibit Ka-2 and statement of fact witnesses during trial, indicate that because of existing enmity between informant Hari Singh and the accused A-1 and A-9 coupled with Makbool Singh (since dead), all the appellants climbed on the roof of informant's house and stepped down from staircase into enclosed courtyard (Aagan). They abused house inmates and challenged that they will play a bloody Holi. Informant and his brother Bharat Singh vainly persuaded them to desist from their such an intention as it was a Holi festival day but their requests went unheeded and trespassers started assaulting house inmates from blunt objects carried by them causing injuries to the informant, his wife Pushpa Devi, his brothers Prem Singh and Bharat Singh and Smt. Maha Devi w/o Prem Singh. Shrieks of beaten victims attracted Mukhtar Singh, Udai Veer, Nanak, Puran Singh at the spot. In the midst of assault, Prem Singh and Bharat Singh, to save their lives climbed on the roof, but they were chased there by Om Pal Singh, Bani Singh both armed with ballam and Hari Singh, Veer Singh and Prem Singh, all armed with lathis and these accused assaulted Bharat Singh and Prem Singh on the roof. Bharat Singh was assaulted with ballam whereas Prem Singh was belaboured by lathi. In retaliation and self defence, Bharat Singh and Prem Pal Singh pelted bricks and stone on the malefactors. Bharat Singh was assaulted with ballam whereas Prem Singh was belaboured by lathi. In retaliation and self defence, Bharat Singh and Prem Pal Singh pelted bricks and stone on the malefactors. On approaching of the witnesses, those accused, who had remained in the enclosed courtyard escape from the front door of the house and those assailants, who were on the roof, escaped from back of the house. Bharat Singh fainted because of the sustained injury by ballam. Informant Hari Singh arranged for a buggi and along with all the injured except his wife Pushpa started for police station Anupshahr. In the way they got a bus and therefore, leaving buggi they boarded the bus and reached Anupshahr Hospital where injured Bharat Singh and Prem Singh were admitted. Hari Singh thereafter dictated FIR to one Ramesh Sharma, a shopkeeper, and after verifying it's correctness signed on it. He thereafter took the said FIR, Ext. Ka-1, to police station Anupshahr, at a distance of 5 miles and lodged it as crime number 66-A under Sections 147, 148, 323, 324, 452, 308 IPC the same day at 4.20 p.m. 3. Head Constable Umesh Chand registered the crime prepared Chik FIR,Ext.Ka-2 and the relevant GD entry Ext. Ka-3. S.I. N.S. Gahlot commenced the investigation copied the Chik FIR & GD entry, recorded 161 Cr.P.C. statement of Head Moharir Umesh Chand and thereafter he came to the hospital where he recorded interrogatory statements of Bharat Singh and Prem Singh. From the hospital P.W.4 returned to the police station and recorded interrogatory statements of Hari Singh and Maha Devi and thereafter copied the medical examination reports of the injured. P.W.4 thereafter interrogated and recorded statements of accused Samai Singh, Bani Singh, Ompal and Hari Raj, who were arrested meanwhile. Following day I.O. interrogated informant's wife Smt. Pushpa Devi and directed her to get herself medically examined. He conducted spot inspection and prepared site plan Ext. Ka-4. On 16.3.79 he was informed regarding death of injured Bharat Singh and therefore, I.O. converted the offence under Section 304 IPC. I.O. thereafter copied postmortem examination report and on 29.3.79 through Constable Wahid Khan of police station Kotwali dispatched blood stained cloths of the deceased for chemical examination. He conducted spot inspection and prepared site plan Ext. Ka-4. On 16.3.79 he was informed regarding death of injured Bharat Singh and therefore, I.O. converted the offence under Section 304 IPC. I.O. thereafter copied postmortem examination report and on 29.3.79 through Constable Wahid Khan of police station Kotwali dispatched blood stained cloths of the deceased for chemical examination. I.O. thereafter interrogated other witnesses and copied supplementary report of injured Prem Singh in which it was mentioned that he had sustained a fractured and therefore, I.O. altered the offence under Section 325 IPC. Concluding investigation I.O. laid charge-sheet Ext. Ka-5 on 11.5.79 against the accused. 4. S.I. R.P. Sharma P.W.6 had conducted inquest on the dead body of the deceased Bharat Singh on 16.3.79 in district hospital Bulandshahar vide Ext. Ka-14. He had prepared inquest report and other relevant papers of challan lash, photo lash, request for post-mortem examination, report to R.I. etc., which papers have been proved and exhibited as Ext. Ka-15 to Ka-18. Sealing dead body he had dispatched it for autopsy purposes through Constable Hari Prakash and Wahid Raza. 5. Injured Hari Singh, Prem Singh, Bharat Singh (expired) Smt. Maha Devi and Smt. Pushpa were medically examined by Dr. Suresh Kumar P.W.5 in Civil Hospital Anupshahr. Bharat Singh deceased were medically examined on 14.3.79 at 4.30 p.m. vide exhibit Ka-6, informant Hari Singh was examined on the same day at 5.25 p.m. vide Ext. Ka-7, injured Prem Singh was examined on the same day at 5.40 p.m. vide Ext. Ka-8, Smt. Maha Devi was examined on the same day vide Ext. Ka-9 at 6.00 p.m. Smt. Pushpa Devi w/o informant was examined on 16.3.79 at 11.00 a.m. vide Ext. Ka-10. Supplementary report in respect of fractured sustained by injured Prem Singh dated 28.3.79 is Ext. Ka-11. The copy of the medical reports in order of its seriatum are reproduced below:- Exhibit Ka-6 Examined Bharat Singh S/o Kalyan Singh aged about 32 years resident of Vill. Hissawati P.S. Anupshahr, Distt. BSR on 14.3.79 at 4.30 p.m. B.B. Pol. Const. C/77 Ram Autar P.S. BSR. M.I. One raised mole on left side face 1 cm away from left nostril. Injuries: (1) Punctured wound 2.5 cm x 1 cm x chest cavity deep on the back of right chest, 13 cm away from back bone, 4 cm below interior angle of right scapula. bleeding present. Const. C/77 Ram Autar P.S. BSR. M.I. One raised mole on left side face 1 cm away from left nostril. Injuries: (1) Punctured wound 2.5 cm x 1 cm x chest cavity deep on the back of right chest, 13 cm away from back bone, 4 cm below interior angle of right scapula. bleeding present. Surgical emphases present all over right chest. Adv. x-ray. Tailing present at lower end. (2) Lacerated wound 7 cm x 1 cm x scalp deep on right side head, 7 cm above right ear, at 1' O clock bleeding present. U.O. (3) L.W. 5 cm x 1 cm x scalp deep on the right side head, 2.5 cm behind injury no.2 bleeding present. U.O. (4) Contusion 7 cm x 2.5 cm on the left side back 3.5 cm away from back bone. bright red. oblique middle 3rd of back. (5) Incised wound 2 cm x 0.5 cm x 1 cm deep on the outer & upper part of right buttock. Bleeding present, tailing present at upper end. Inj. no.1 U.O. Adv. X-ray, Inj. No.2, 3 U.O. Inj. No.4 & 5 simple caused Inj. No.1 and 5 caused by sharp edged weapon. Inj. no.2, 3 & 4 caused by blunt & hard object. Duration fresh. Exhibit Ka-7 Examined Hari Singh aged about 28 years S/0 Kalyan Singh resident of vill. Hissawati, P.S. Anupshahr, Distt. Bulandshahr on 14.3.79 at 5.25 p.m. B.B. Pol. const. 77/Ram Autar P.S. Anupshahr. M.I. One black mole 3.5 cm away from right angle of mouth. Injuries: (1) L.W. 3 cm x 0.2 cm on the front of chest 5 cm below suprasternal notch, skin deep, bleeding present. Inj. no.1 simple. caused by blunt & hard object. Duration fresh. Exhibit Ka-8 Examined Prem Singh aged about 32 years S/o Kalyan Singh resident of Vill. Hissawati P.S. Anupshahr, Distt. BSR on 14.3.79 at 5.40 p.m. B.B. Pol. Const. C 77/Ram Autar P.S. BSR. M.I. One black mole on right chest, 5.5. cm away from right nipple (towards left). Injuries: (1) L.W. 4.5 cm x 1 cm x scalp deep on the right side forehead, starting from outer end of right eye brow. bleeding present. Clotted blood present around the wound. (2) L.W. 1.5 cm x 0.5 cm x scalp deep on the middle of forehead at hair line. bleeding present. clotted blood present. Injuries: (1) L.W. 4.5 cm x 1 cm x scalp deep on the right side forehead, starting from outer end of right eye brow. bleeding present. Clotted blood present around the wound. (2) L.W. 1.5 cm x 0.5 cm x scalp deep on the middle of forehead at hair line. bleeding present. clotted blood present. (3) Lacerated wound 3.5 cm x 0.5 cm x scalp deep 7.5 cm above left ear at 1.0 clock position. bleeding present. (4) Lacerated wound 0.2 cm x 0.2 cm x skin deep with swelling in an area of 3 cm x 2 cm with clinical fracture of left forearm lower 3rd, 4 cm above left wrist joint. U.O. Adv. X-ray. (5) Multiple contusion in an area of 1 cm x 13 cm on the back of middle right. bright red. (6) Contusion 7 cm x 1.3 cm on the right side both lower 3rd bright red. (7) Abraded contusion 3 cm x 2 cm on the medial of right ankle joint. red. injury no.1, 2, 3 & 4 U.O. Adv. X-ray. INJ. no.5 simple Inj. no. 1, 2, 3, 4 & 7 caused by blunt & hard object. Duration fresh. Exhibit Ka-9 Examined Smt. Maha Devi aged about 35 years W/o Prem Singh resident of Vill. Hissawati, P.S. Anupshahr district Bulandshahr on 14.3.79 at 6 p.m. B.B. C/77 Ram Autar P.S. Anupshahr. M.I. One black mole on right side neck (root) outer & front part. Injuries: (1) Swelling with redness an left elbow joint. 12 cm x 6 cm U.O. Adv. X-ray. Mud. around the back of joint. (2) Contusion 4 cm x 2 cm on the top of right shoulder. bright red. (3) Abrasion 3 cm X 2 cm on the front of right knee joint. Inj. no.1 U.O. Adv. X-ray inj. no.2 & 3 simple Inj. no.1, 2 & 3 caused by blunt & hard object. Duration fresh. Exhibit Ka-10 Examined Pushpa Devi aged about 30 years W/o Hari Singh resident of Vill. Hissawati P.S. Anupshahr, Distt. Bulandshahr on 16.3.79 at 11 A.M. B.B. Pol. Const. 557 Mamchand P.S. BSR. M.I. One black on the front & outer part of left forearm, 9 cm below elbow joint. Injuries: (1) Contusion 20 cm x 1.5 cm on the outer & back of left shoulder, upper arm & elbow joint. oblique brownish. Hissawati P.S. Anupshahr, Distt. Bulandshahr on 16.3.79 at 11 A.M. B.B. Pol. Const. 557 Mamchand P.S. BSR. M.I. One black on the front & outer part of left forearm, 9 cm below elbow joint. Injuries: (1) Contusion 20 cm x 1.5 cm on the outer & back of left shoulder, upper arm & elbow joint. oblique brownish. (2) Contusion 8 cm x 1.2 cm on the middle of left scapular region. outer part, brownish. oblique. (3) Abrasion 2 cm x 0.3 cm on the front & lower 3rd of right leg. soft to firm 8 cm, brownish. (4) Contusion of 8 cm outer part of right shoulder joint. Inj. no. 1, 2 & 3 simple, caused by blunt & hard object. Duration about 1-1/2 day. Exhibit Ka-11 Supplementary report of Prem Singh S/o Kalyan Singh. Examined on 14.3.79. Inj. 1, 2 & 3 simple. Inj. no.4 forms to be grievous as there is fracture of left radius bone as marked with skiagram. dated 16.3.79 X-ray plate no.9. Autopsy on the dead body of the deceased Bharat Singh was performed on 16.3.79 at 4.30 p.m. vide Ext. Ka-19. In the autopsy report doctor had found his body to be average built and rigor mortis present all over it. No decomposition had started and eyes were closed. Deceased was estimated to be 22 years of age. His right lung was found to be punctured along with pleura. His stomach was empty and gases were present in his intestine. Autopsy doctor has noted followings ante-mortem injuries on deceased body:- 1. stitched wound 2.5 cm long into 1 cm x 6 cm deep on the deep chest cavity on the left side back of chest 13 cm away from back bone 4 cm. below right scapula and surgical emphasis was present. Tailing at the end of the wound was present. 2. stitched wound 2 cm long through stitched on the top of it right side. 3. lacerated wound 3 cm x 1 cm x scalp on middle head. 4. contusion 2 cm x 1 cm on the right shoulder front. 5. stitched wound 2.5 cm long on right side head 3 above ear on temporal bone. 6. Genuineness of autopsy report has been admitted by the defence and hence it's formal proof was dispensed with. 7. lacerated wound 3 cm x 1 cm x scalp on middle head. 4. contusion 2 cm x 1 cm on the right shoulder front. 5. stitched wound 2.5 cm long on right side head 3 above ear on temporal bone. 6. Genuineness of autopsy report has been admitted by the defence and hence it's formal proof was dispensed with. 7. After filing of charge-sheet, accused were summoned and their case was committed to Session's Court for trial where it was registered as S.T. No. 287 of 1980, State Vs. Chottay Singh and others. 8. During trial prosecution relied upon oral testimony of six witnesses out of whom informant P.W.1, injured P.W.2 and independent witness P.W.3 were fact witnesses. Formal witnesses included I.O. S.I. N.S. Gahlot, P.W.4,Dr. Suresh Kumar M.O., Civil Hospital, Anupshahar P.W.5 and R.P. Sharma, S.I. P.W.6. Accused in their statements u/s 313 Cr.P.C. denied the prosecution allegations and had pleaded a cross version. Accused Chotey Singh pleaded his false implication. Accused Bani Singh stated that he had a shop in Jahagirabad and on 13th Bharat Singh and his family members had abused his father. On 14.3.79 at 1.30 in the afternoon when he was returning to his village from Jahagirabad then in the way he met Bharat Singh. On being grouched as to why he had abused an aged person, that Bharat Singh retaliated by replying that he will play a bloody holi and thereafter clapped Bani Singh and called his other brothers, on which clarion Pooran Singh, Surya, Hari, Prem Singh etc. rushed to the spot armed with lathi and started belobouring Bani Singh. On hue and cry raised by Bani Singh, his brother Samai Singh, Om Pal Singh and many other co-villagers arrived at the scene of assault armed with lathi and saved Bani Singh. It was further stated that he (Bani Singh) had also lodged a FIR about that incident. Appellant Samai Singh stated that Bani Singh was assaulted by Pooran, Niranjan, Surya, Hari, Prem and Bharat and therefore, on his hue and cry he had gone their armed with a ballam but he was also belabored and therefore, in self defence, he had wielded the ballam. The same defence was pleaded by Om Pal Singh, who instead of ballam had stated that he had gone there along with lathi,which he had wielded in self defence. The same defence was pleaded by Om Pal Singh, who instead of ballam had stated that he had gone there along with lathi,which he had wielded in self defence. Appellant Nawab Singh, Veer Singh, Hari Ram Singh, Gajendra Singh and Prem Pal Singh pleaded their absence during the incident and their false implication. Accused in their defence did not lead any oral evidence but relied upon documentary evidence including injuries sustained from their sides which were as follows:- Exhibit Kha-5 Examined Bani Singh aged about 45 years, Anilal Singh resident of village Hissawati P.S. Anupshahr, District Bulandshahr on 14.3.79 at 4.20 p.m. B.B. Po Const. No.C477 Brijpal Singh P.S. Anupshahr. M.I. One black mole on right side chest. 4 cm inner to right nipple at 3 O. clock. Injury: (1) Lacerated wound 2 cm x 1 cm x scalp deep on the back of head (occipital prominence) 12 cm away from right ear, bleeding present, fresh. (2) L.W. 3 cm x 1/2 cm x scalp deep on the top of left side head, 8 cm above left ear, at 11 O'clock. (3) L.W. 2.5 cm x 1/2 cm x scalp deep, 8 cm above left year, 2 cm behind injury no.2 bleeding present. (4) Contusion 3 cm x 1.5 cm on the back of left hand upper part, red. (5) Complains of pain left ankle inner part. Inj. no.1, 2, 3, U.O. Injury no.4 and 5 simple Inj. no.1, 2, 3, 4 and 5 simple. Inj. No.1, 2, 3, 4 caused by blunt and hard object. Duration fresh. Exhibit Kha-6 Examined Samai Singh aged about 50 years son of Amilal R/o village Hissawali, P.S. Anuphahr Distt. Bulandshahr on 14.3.79 at 4.55 p.m. B/B Const. 477 Brijpal Singh P.S. Anupshahr. M.I. Two black moles in front of abdomen. (Epigastric region) 6 cms. apart from each other. Injury:- 1. L.W. 2 cm x 0.5 cm x scalp deep, 6 cm above left ear at 12 o'clock, bleeding present. 2. L.W. 6 cm x 0.5 cm x scalp deep on the left side head, 2.5 cm above injury no.1 bleeding present. 3. L.W. 2 cm x 0.3 cm x scalp deep, 3 cm above injury no.2 bleeding present. 4. L.W. 1 cm x 0.2 cm x skin deep on the upper and of root of left ear pinna, bleeding present. 5. 3. L.W. 2 cm x 0.3 cm x scalp deep, 3 cm above injury no.2 bleeding present. 4. L.W. 1 cm x 0.2 cm x skin deep on the upper and of root of left ear pinna, bleeding present. 5. Contusion 10 cm x 2.5 cm cm on the right side back middle, oblique, bright red. 6. L.W. 1 cm x 0.1 cm x skin, on the palmer aspect of left ring finger, middle bleeding present. Injuries nos. 1, 2 and 4 U.O. Injury 4, 5 and 6 simple, Injury No.1 to 6 caused by blunt end hard object. Duration fresh. Exhibit Kha-7 Examined Om Pal Singh aged about 20 years son of Prahlad Singh R/o Village Hissawti P.S. Anupshahr, District Bulandshahr on 14.3.79 at 5.10 p.m. B/B POI Constable 477 Brijpal Singh P.S. Anupshahr. M.I. One black mole on right side neck middle and outer part. Injury: 1. Lacerated wound 5.5. cm x 0.5 cm x scalp deep on right side forehead 7 cm above inner end of right eyebrow, bleeding present. Injury (1) simple Caused by blunt and hard object. Duration fresh. 9. IInd Additional Session's Judge, Bulandshahar, vide impugned judgment and order dated 31.8.1981, held Om Pal and Bani Sigh guilty under Section 148, 452, 304 part II/149 IPC and therefore, convicted and sentenced them for these offences, which has already been mentioned above. Other accused were held guilty under sections 147, 452, 304 part II/149 IPC and therefore, convicted and sentenced accordingly, as has already been mentioned in the opening paragraph of this judgment. Hence, this appeal by the convicted accused challenging their aforesaid convictions and sentences. 10. Pending disposal of the appeal in this Court, five of the appellants expired. Appeals of Chottey Singh, Nawab Singh and Hari Ram Singh were abated on 26.7.2006 while appeals of two other appellants Samai Singh and Bani Singh was abated on 21.10.2011. This has left this Court to consider appeal of rest of four surviving appellant A-4 Gajendra, A-5 Om Pal, A-7 Veer Singh and A-8 Prem Pal Singh. 11. At the time when the appeal was called out for hearing Sri Ram Babu Sharma, learned Advocate appeared for A-4, A-7 and A-8. Nobody appeared on behalf of A-5 Om Pal Singh and therefore, Sri D.M. Singh, Advocate was appointed as amicus curiae to argue his appeal. 12. 11. At the time when the appeal was called out for hearing Sri Ram Babu Sharma, learned Advocate appeared for A-4, A-7 and A-8. Nobody appeared on behalf of A-5 Om Pal Singh and therefore, Sri D.M. Singh, Advocate was appointed as amicus curiae to argue his appeal. 12. Castigating the impugned judgment of conviction and sentence, it was submitted by appellants counsel that entire prosecution version is incredible and fact witnesses have deposed all wrong facts during trial and they cannot be believed. It was argued that Bani Singh was assaulted by the prosecution side in the lane while he was returning to his house by Hari Singh, Prem Singh, Bharat Singh, Smt. Mahadevi and Smt. Pushpa. Hue and cry of Bani Singh attracted Om Pal, Samai Singh at the spot who intervened into the assault and saved Bani Singh with their ballam and lathi and these three had also sustained injuries during the incident regarding which Bani Singh A-3 had also lodged FIR of Crime No.66/79, under Sections 147, 148, 323, 324 IPC at Police Station Anupshahr the same day at 4.05 p.m. against accused Bharat Singh, Pooran, Surya Prakash, Prem, Hari Singh and Niranjan Singh disclosing time of the incident at 1.30 in the afternoon, much prior to prosecution FIR. Accused appellant have also filed, as defence paper, copy of cross FIR Ext. Kha-3, copy of GD entry Ext. Kha-4 and injury reports of the three injured exhibits Kha-5, Kha-6 and Kha-7. They have also filed the extracts of depositions of P.W.1 and witness Nanak P.W.3 as Ext. Kha-1 and Kha-2. On the strength of these papers, it was submitted that prosecution witnesses had suppressed real genesis of the incident and no explanation was offered for the injuries sustained by appellants, either in their FIR and or statements during investigation and therefore, none of the prosecution witnesses could be relied upon. It was next submitted that the defence of the appellants is equally compatible with that of the prosecution and therefore, all the accused persons are entitled to the benefit of doubt. It was further contended that the appellants acted in exercise of right of self defence and therefore, they cannot be saddled with any offence. It was next submitted that the defence of the appellants is equally compatible with that of the prosecution and therefore, all the accused persons are entitled to the benefit of doubt. It was further contended that the appellants acted in exercise of right of self defence and therefore, they cannot be saddled with any offence. Learned counsel further castigated impugned decision by submitting that the explanation of the injuries sustained from the appellants side, as was testified during trial, was absolutely wrong because the same is directly and substantially contradicted by the medical evidence. It was therefore, submitted that in absence of any proper and convincing explanation coming forth from prosecution witnesses about the injuries sustained by the appellants side, prosecution story cannot be relied upon and appeal of the appellants deserves to be allowed. It was further contended by Sri Ram Babu Sharma that appellants Prem Singh at the time of the incident was a minor and the trial Judge completely ignored the said aspect of the matter while convicting and sentencing him, who was entitled for benefit of U.P. Children's Act. Learned counsel has filed an affidavit on behalf of the said appellant annexing therein the mark-sheet of Junior High School wherein date of birth of the said appellant is recorded as 2.2.1964. The said document has been filed on the affidavit filed by appellant Prem Pal himself. On the aforesaid basis it was argued by both the counsel that instant appeal be allowed and conviction of appellants be set aside. They however also argued that in case appellants are not acquitted of the charges levelled against them, since the incident occurred more than three decades ago, appellants be not sent to jail and instead they be implanted with some fine. 13. Learned AGA conversely submitted that the appeal lacks merit and deserves to be dismissed as it is established on the record that the appellants were the aggressors and they had trespassed into informant's house and had assaulted the inmates. They sustained injuries during that assault and once they were the aggressors, plea of exercise of right of private defence does not accrue to them. It is next argued that in the present incident, date and time of the incident is admitted. Presence of informant Hari Singh, injured Prem Singh, deceased Bharat Singh and injured Maha Devi and Puspa Devi are admitted. It is next argued that in the present incident, date and time of the incident is admitted. Presence of informant Hari Singh, injured Prem Singh, deceased Bharat Singh and injured Maha Devi and Puspa Devi are admitted. From the side of the appellants, presence of Chhote Singh, Samai Singh, Bani Singh, and Om Pal are also admitted and, therefore, there is no doubt about their participation into the crime. It was, therefore, contended that the appeal of the appellants lacks merit and deserves to be dismissed. On the question of sentence, it was submitted that since the appellants were the aggressors and they had caused injuries after trespassing into informant's house that they should be imposed some imprisonment coupled with fine and their entire period of jail term be not scored out. 14. I have considered the arguments raised by both the sides and have perused the record of the trial court as well as the appeal. Some of the facts in this appeal are not in-disputed as there are cross versions by both the sides and occurring of the incident is admitted. It is admitted that an incident of marpeet occurred on 14.3.1979 at 1.30 or 2 p.m. regarding which cross versions of crime no. 66 of 1979 and 66-A of 1979 were registered at P.S. Anupshahr, District Bulandshahar. Presence of informant Hari Singh, deceased Bharat Singh, injured Prem Singh, witness Pooran Singh from the prosecution side is admitted and these persons had participated in the incident. From the appellants' side, presence of appellant Bani Singh A-3, Samai Singh A-2 and Om Pal A-5 is accepted and they had participated in the incident. Use of lathi is also not contested by both the sides. It is also admitted to both the sides that the incident occurred because of the existing enmity regarding an immovable property in which connection, litigation was also pending in court. According to the prosecution allegations, appellants trespassed into the informant's house and belabored the house inmates with ballam and lathi. Defence of the appellants is that the incident occurred in the lane when A-3 was returning to his house and was assaulted by the deceased along with informant Hari Singh, injured Prem Singh and witness Pooran Singh. According to the prosecution allegations, appellants trespassed into the informant's house and belabored the house inmates with ballam and lathi. Defence of the appellants is that the incident occurred in the lane when A-3 was returning to his house and was assaulted by the deceased along with informant Hari Singh, injured Prem Singh and witness Pooran Singh. On such evidences, once the incident and causing of injuries is admitted to both the sides and when the appellants are claiming exercise of right of private defence of a person, what is to be adjudged is as to which side was the aggressor and which, out of the two cross versions, inspires confidence and is credible and acceptable. 15. Analyzing from the above point of view, it is to be noted that according to the prosecution version, incident occurred inside informant's house. During investigation, I.O. had collected blood from the enclosed courtyard as well as from the roof of informant's house. Accused persons have failed to dislodge the said evidences. So much so that when Investigating Officer was being cross examined, after being recalled, when he had proved collection of the blood from the enclosed courtyard and informant's roof, accused persons did not challenge such a collection of blood from these spots. They only questioned the I.O. that he had had not dispatched the said blood for chemical examination. On such unsatisfactory cross examination, there remains no doubt that the incident did occur inside informant's house. Appellants have failed to dislodge such an evidence by bringing any material that blood was collected from any other spot than what had been claimed by the prosecution. Another feature which lies in favour of the prosecution story is that two women from the side of the prosecution had also sustained injuries in the incident and they are Smt. Pushpa Devi W/o informant P.W. 1 and Smt. Maha Devi w/o injured Prem Singh. Both the ladies were medically examined vide Ext. Ka-9 and Ka-10. Accused persons have not challenged sustaining injuries by them during course of the incident by suggesting to any of the fact witness that these ladies were not present at the spot nor they had sustained any injury in the incident. In such a view, it is difficult to accept the defence case that the incident occurred in a lane where only the male members of both the sides participated. In such a view, it is difficult to accept the defence case that the incident occurred in a lane where only the male members of both the sides participated. Prosecution story on the other hand, seems to be more credible that the incident occurred inside the house where presence of these two ladies are most natural and they had also sustained injuries in the brawl. It was holi festival day and therefor their presence is unchallengable. Prem Singh had sustained fracture of his left radius bone during the incident. The third important feature, which goes against the defence plea of exercise of right of private defence is that, in their written report Ext. Kha-3 by A-3 Bani Singh, there is absolutely no mention of use of any sharp edged weapon by any of the participating males, albeit it was stated under section 313 Cr.P.C. statement, which obviously is an embellishment. How come then that the deceased had sustained two injuries caused by sharp edged weapon. One of the injury according to the medical examination report Ext. Ka-7 is a punctured wound 2.5cm x 1cm chest cavity deep on the back of right chest and the other injury is injury no. 5 incised wound 2cm x 0.5cm x 1cm deep on the outer and upper part of the right buttock with tailing present. Accused persons have not been able to dislodge prosecution story of wielding of ballam in the aforesaid incident. Not even an iota of cross examination was done on the said aspect of the matter from all the three fact witnesses including two injured. So much so that the defence has not even suggested to the informant P.W. 1 and injured Prem Singh P.W. 2 that nobody in the incident had wielded any sharp edged weapon. In such a view, the story of exercise of right of private defence, as put forth by the appellants, is not the true and correct narration of the incident. Another unsatisfactory feature in accepting the defence version is that according to the prosecution, 10 persons assaulted the male and women folk of informant's house causing in all as many as 20 injuries most of which are lacerated wounds. Accused claimed that Bani Singh A-3 was assaulted by seven persons and the total number of injuries sustained from the appellants' side is only twelve. Accused claimed that Bani Singh A-3 was assaulted by seven persons and the total number of injuries sustained from the appellants' side is only twelve. The discrepancy in the quality and quantity of injuries also does not indicate that the prosecution side was the aggressor and conversely points out that whosoever was the aggressor was well prepared with the weapons and indulged into the incident with an idea to launch an assault and not to be at the receiving end and they can be only the appellants. Another feature which supports the prosecution story is that the date of the incident was the day of Holi festivity. Normally on that day, after colours are sprinkled, the house inmates remained inside their houses to wash away the anointed colours. In this respect, testimony of P.W. 1 is very natural when he had deposed that after playing Holi, he had washed himself and was preparing to have lunch. No cross examination of the informant was done on the aforesaid testimony. Only a bald suggestion was given to him that the incident had occurred in the lane. On such an unsubstantiated defence version, the credible depositions of fact witnesses whose presence at the spot cannot be doubted, cannot be thrown over board and rejected. It is also very unconvincing to note that while cross examining fact witnesses, defence has not made any endeavour to challenge the prosecution story and the manner of assault stated by them. Nowhere it was challenged that the appellants could not climb the house of the informant from the rear back. It has also not been challenged that no incident of assault took place in the enclosed courtyard or at the roof. As has already been stated above, presence of the blood on two spots has also not been questioned. In such a view, there remains no doubt that the incident occurred inside informant's house and in that informant and his brother as well as the deceased along with women folk had sustained injuries and, therefore, the defence story of exercise of right of private defence in an incident alleged to have occurred in an open lane does not inspire any confidence and has to be rejected as an afterthought version. In such a view, the only inescapable conclusion is that it was the appellants' who were the aggressors and prosecution had caused them injuries in exercise of their right of private defence. Learned Amicus Curiae in this respect submitted that the fact witnesses are not reliable because according to them injuries to the appellants were caused by pelting bricks and stone but the nature of injuries does not suggests so. The said argument should not vexed the mind as, it was never put to the doctor that the injuries sustained by the two appellants could not have been caused by bricks and stone pelting. Castigation of the prosecution witnesses without affording them an opportunity to explain will not dislodge credit worthy depositions of witnesses. While cross examining P.W. 5 Dr. Suresh Kumar, defence has not questioned him that the injuries sustained by the three appellants could not be caused by bricks and stones pelting. 16. It was further argued by learned Amicus Curiae that the incident occurred in the lane and on preponderance of probability, defence of the accused has to be accepted but as stated above, the said argument is not appealing as the defence has failed to dislodge the credibility of prosecution witnesses and the truthfulness of their depositions. In Dattu Shamrao Valake and another vs State of Maharashtra : AIR 2005 SC 2331 , it has been held by the apex court as under:- "Moreover, the fact that the lady members of the family were accompanying them coupled with the fact that there were only three able-bodied males in the prosecution party (Krishna being a very old man) and the further fact that the weapons they were carrying (axe and sticks) were such as are ordinarily carried in villages while going to fields, would probabilize the fact that that their arrival in the village of Walkewadi was for some reason other than initiating a fight against the accused." 17. In Darshan and others vs State of Haryana: AIR 2002 SC 2344 it has been observed by the Supreme court as under:- "4. Apart from the eye-witnesses account, the statement of the medical witnesses and the Investigating Officer who all connect the appellants with the crime, we find that Balu in this statement recorded under S. 313, Cr. In Darshan and others vs State of Haryana: AIR 2002 SC 2344 it has been observed by the Supreme court as under:- "4. Apart from the eye-witnesses account, the statement of the medical witnesses and the Investigating Officer who all connect the appellants with the crime, we find that Balu in this statement recorded under S. 313, Cr. P.C. has for all intent and purposes admitted that on 28-3-1992 an occurrence did take place in which the named accused as well as the named members of the complainant party participated resulting in the death of the deceased. According to him, the accused party attacked the complainant party in defence of Amar Singh and Takdir and in their own defence. However, evidence led by the prosecution which has stood the test of cross-examination well, clearly establishes that plea of self-defence taken by Balu in his statement under S. 313, Cr. P.C. is only an afterthought and has no basis." 18. Thus from the facts and circumstances of the appeal it has been established beyond doubt that informant party could not have been the aggressor. As pointed out above Apex Court has held that if the injuries to the women folk were also caused then it is difficult to believe that the prosecution side was the aggressor and had gone to the scene of the incident to pick up the quarrel. In such a view, so far as conviction of the appellants is concerned, I do not find any illegality into the same. This appeal, therefore, has to be dismissed by upholding conviction of surviving appellants. 19. Now turning towards the sentence, there is much substance in the arguments raised by Sri Ram Babu Sharma as well as learned Amicus Curiae that the incident had occurred more than three decades ago and, therefore, the sentence of the appellants should be reduced. In this connection, Sri Ram Babu Sharma had also argued that so far as appellant Prem Pal Singh is concerned, he had stated his age to be 16 years under Section 313 Cr.P.C. This was in 1981. Incident had occurred two years ago and, therefore, on the date of the incident, the said appellant Prem Pal Singh must be 14 or 15 years of age. Incident had occurred two years ago and, therefore, on the date of the incident, the said appellant Prem Pal Singh must be 14 or 15 years of age. In support of the said plea of being a juvenile, a supplementary affidavit has also been filed by the said appellant wherein he has annexed the mark-sheet of Junior High School, Birauli from G.S.N. Inter College, Karanpur, Bulandshahar. In the aforesaid mark-sheet, age of the appellant is recorded as 2.2.1964. Calculating from the said date on the date of the incident, the said appellant should be 15 years of age. Directing for an inquiry into his age after a gap of three decades will not be very helpful and justified as the said appellant has already settled in life and has got grownup children. Prosecution has also not challenged or disputed his age as was recorded under Section 313 Cr.P.C. In such a view, in my humble opinion, the said appellant is entitled to the benefit of U.P. Children's Act. 20. The residue of entire exercise is that the convictions of the four appellants A-4, A-5, A-7 and A-8 have to be up held but their sentences have to be altered. In my view appellant Prem Pal Singh, A-8 has to be set at liberty by altering his sentence to the period of imprisonment already under gone by him conferring on him benefit of U.P. Children's Act. For rest of the three appellants namely Gajendra A-4, Om Pal A-5 and Veer Singh A-7, considering period of three decades gone by and also taking note of the fact that no special reason has been mentioned by the trial Judge in giving them extreme penalty and much of the water has been flown and they are not previous convicts nor they had any criminal history, that it will meet ends of justice, if their sentences are reduced to a period of imprisonment for five years RI with fine of Rs. 10,000/- with further direction that in default of payment of fine, they shall further undergo six months further RI u/s 304II/149 IPC while maintaining their sentences on rest of the counts. 21. The appeal succeeds and is allowed in part. 10,000/- with further direction that in default of payment of fine, they shall further undergo six months further RI u/s 304II/149 IPC while maintaining their sentences on rest of the counts. 21. The appeal succeeds and is allowed in part. While conviction of the surviving appellants A-4 Gajendra, Om Pal A-5, Veer Singh A-7 and Prem Pal Singh A-8 for offences under Sections 147, 148, 452, 304(II)/149 I.P.C. are hereby maintained but their sentences are altered. Prem Pal Singh,A-8, being juvenile, is sentenced to the period of imprisonment already undergone by him for all the charges. Gajendra A-4 and Veer Singh A-7 are hereby sentenced to 1 ½ years RI under section 147 I.P.C. Om Pal A-5 is sentence to 2 years RI for offence u/s 148 IPC. All the three appellants, Gajendra A-4, Ompal, A-5, and Veer Singh A-7 are sentenced to 2 years RI u/s 452 I.P.C. and five years RI with fine of Rs. 10,000/- u/s 304(II)/149 I.P.C. All the sentences of imprisonment of A-4, A-5 and A-7 shall run concurrently. In default of payment of fine each of these three appellants Gajendra A-4, Om Pal, A-5 and Veer Singh A-7, they shall undergo six months further RI. 22. Out of an amount of Rs. 30,000/- to be realized from Gajendra A-4, Om Pal,A-5 and Veer Singh A-7, a compensation of Rs. 20,000/- is awarded to the informant Hari Singh P.W.1 for the injuries caused to his family members, which compensation shall be realized and paid to him by the trial Judge within two month from today. Surety and personal bonds of these three appellants Gajendra, Ompal and Veer Singh shall be discharged only after realizing the fine as imposed aforesaid. Gajendra, Ompal and Veer Singh are on bail. Trial Judge is directed to take them into custody and lodge them in jail to serve out remaining part of their sentences imposed herein above. 23. Let a copy of the judgment be certified to the trial court for its intimation.