Vinod Prasad, J.;- Appellants Ashok Kumar Singh A-1, Pratap Singh A-2 both real sibling brothers being sons of Ram Bahadur Singh, Chotkoo Singh A-3, Bharat Singh A-4 both sons of Deep Narain Singh and Lalloo Singh @ Gajendra Singh A-5, have filed the instant appeal against the impugned judgement and order dated 31.7.1982 passed by Ist Additional Session's Judge, Basti in S.T. No.40 of 1979, State Vs. Ashok Kumar Singh and others, relating to police station Uska, district Basti. Trial Judge has convicted appellants A-1 and A-2 under Section 148 IPC and has imposed sentence of three years R.I. for the said charge. A-1 has been further convicted under Section 324 IPC and was imposed sentence of 3 years R.I. for that offence. Rest all the appellants were convicted under Section 324 /149 IPC and were sentenced to three years R.I. for that offence. Three of the appellants A-3, A-4 and A-5 were convicted under Section 323 and 147 IPC and were sentenced to one year and two years R.I., respectively for those offences. Trial Judge had directed all the sentences to run concurrently. It is this conviction and sentence, which is under challenge in the instant appeal. 2. Pending final disposal of the appeal one of the appellant Pratap Singh A-2 expired and, vide order dated 29.1.2010, his appeal has been abated. This has now left this Court to consider the appeal of rest of the four appellants A-1, A-3, A-4 and A-5. 3. Stated briefly, prosecution allegations, as was contained in the written F.I.R. Ext. Ka-1 scribed by informant Rajendra Prasad son of Balli P.W.1, were that the informant was a resident of village Bagahi, police station Uska, district Basti. On the incident dated 31.8.1979 at 11.00 a.m. he was going to the market on a cycle and when he was passing through the granary of A-1, he was stopped and accosted by him as to why he is riding a cycle in his presence. Informant retaliated by informing him that the way was a common passage and thereafter he proceeded for the market where he had purchased some articles. While returning therefrom when PW-1 reached the said granary then A-1 stopped his cycle, gave him two slaps, and thereafter returned his cycle. Informant came to his house where he narrated the incident to his family members. While returning therefrom when PW-1 reached the said granary then A-1 stopped his cycle, gave him two slaps, and thereafter returned his cycle. Informant came to his house where he narrated the incident to his family members. Taking it to be a temerity, Tameshwar, informant's uncle along with his brothers Garib, Kalloo, Dhunmun went to accused appellants house to lodge a protest regarding the earlier incident, where a verbal onslaught ensued in between them, during course of which, they were threatened. Thereafter Tameshwar and informant's brothers returned back to their house. Same day, at 3.30 p.m., A-1 armed with a spear, A-5 and A-3 armed with lathi, A-4 armed with whip ( hunter) and A-2 armed with a gun raided informant's house. A-3, A-4 and A-5 started belabouring informant, his uncle Temeshwar and brothers Garib and Kalloo with lathis. Hue and cry raised by the victims, attracted other people on which A-2 instigated and A-1 assaulted Dunmun, informant's brother, with his spear causing him fatal injuries, sustaining which, Dhunmun fell down on the ground and expired. Informant, his uncle Temeshwar brothers Garib, Kalloo and Ram Nath resident of village Mulhia, police station Lumbani, Smt. Awadhi ( informant's mother), Smt. Chinki ( informant's sister-in-law), Faagu and many other co-villagers had witnessed the assault. Informant and his brothers, had retaliated by pelting bricks on the accused persons on which the raiders had escaped from the spot. A-2, while fleeing from the incident scene had hurled threats to the informant and his relatives to be annihilated. In the incident informant, his uncle Temeshwar, brothers Kalloo and Garib had sustained lathi injuries. Informant, thereafter, left the corpse of the deceased in the charge of his relatives, scribed Ext. Ka-1, written report, went to the police station Uska Bazar, at a distance of two miles and lodged it the same day at 5.30 p.m. naming all the accused as the malefactors for offences under Sections 147, 148, 149, 323, 506, 302 IPC. 4. Head Constable Ghanshyam Lal registered the crime, prepared Chik FIR and the GD entry Ext. Ka3 and Ka-4. Inspector Nurul Ain P.W.4 prepared chitthi mazroobi ( letter for medical examination) Ext. Ka-5 to Ka-8 and then dispatched the injured to the hospital for their medical examinations. 5. Nurul Ain P.W.4 had also investigated the offences. 4. Head Constable Ghanshyam Lal registered the crime, prepared Chik FIR and the GD entry Ext. Ka3 and Ka-4. Inspector Nurul Ain P.W.4 prepared chitthi mazroobi ( letter for medical examination) Ext. Ka-5 to Ka-8 and then dispatched the injured to the hospital for their medical examinations. 5. Nurul Ain P.W.4 had also investigated the offences. He had interrogated the informant at the police station and thereafter, reaching at the spot, in the light of the petromax, had seized the dead body and had conduced inquest on it from 8:35 to 10:15 p.m. and had prepared inquest memo and other relevant documents, which he had proved as Ext. Ka-9 to Ka-14. Following day I.O. interrogated witnesses Kalloo, Garib, conducted spot inspection and prepared site plan map Ext. Ka-16. He also collected blood stained and plain earth from the incident scene. All these documents have been proved by him as Ext. Ka-15 and Ka-16. Blood stained apparels of the deceased and soil are material Ext. 1, 2 and 3, were also seized by the I.O. P.W.4. Concluding investigation had charge-sheeted the accused vide Ext. Ka-17 on 10.10.78. 6. Medical examination of all the injured was done by Dr. J.P. Singh vide Exhibits Ka-19 to Ka-22. All the injured were medically examined on 1.9.78. Rajendra was examined at 7.30 a.m. whereas Kalloo, Temeshwar and Garib were examined at 11.45 a.m., 11.30 a.m., 12.05 p.m., respectively. Following injuries were detected on the body of these persons:- "Ext. Ka-19 Examined Sri Garib aged about 28 years S/o Balli R/o village Bagahi P.S. Uska Bazar district Basti, on 1.9.78 at 12.5 P.M. M/I- A black mole 3.00 cm lateral to Rt. nipple. B/B- Lalsha Chaukidar of P.S. Uska Bazar. Injuries- ( 1) Contusion 4 cm x 3 cm, bluish in colour on the back of left scapular region, 14.00 cm below left shoulder joint. Infer- Injury is simple in nature, caused by hard blunt object duration as is about 2 days. Ext. Ka-20 Examined Shri Tameshar aged about 52 years s/o Baderi of Bagahi P.S. Uska bazar, district Basti on 1.9.78 at 11.30 a.m. M/I- A black mole 3.00 cm below Rt. nipple. B/B- Lalsha Chaukidar of P.S. Uska Bazar. Injuries:- ( 1) Complaint of pain on the upper & right half of head. ( 2) Traumatic swelling on the back of half upper arm. nipple. B/B- Lalsha Chaukidar of P.S. Uska Bazar. Injuries:- ( 1) Complaint of pain on the upper & right half of head. ( 2) Traumatic swelling on the back of half upper arm. No external mark of injury is present 3 cm above left elbow. ( 3) Complaints of pain on the back of chest, no external mark of injury present, no opinion can be given. ( 4) Traumatic swelling, red in colour on the left hip joint, in the area of 4 cm x 3 cm, adjacent part is covered by small baubles of boils. Infer- All injuries are simple in nature, caused by hard blunt object, duration is about one day. Ext. Ka-21 Examined Shri Kallu aged about 22 years s/0 Balli of P.S. Uska Bazar, district Basti on 1.9.78 at 11.45 A.M. M/I- A black mole 5.00 cm above left nipple. B/B Lalsha Chaukidar of P.S. Uska Bazar. Injuries- ( 1) Swelling with blackish contused abrasion on the front and left forearm in the area of 5 cm x 4 cm with infected abrasion .5 cm below left elbow joint. Infer- Injury is simple in nature, caused by friction & infection of injury duration as is about 3 - 4 days. Ext. Ka-22 Examined Shri Rajendra S/o Balli aged about 20 years of village Bagahi, P.S. Uska Bazar, district Basti on 1.9.78 at 7.30 A.M. M.I.- A black mole on Rt. collar bone 12.5 cm above Rt. nipple. B/B- Pheka Rai Cont. No.87 CP. of P.S. Uska Bazar. Injuries- ( 1) Complaint of pain on the back of chest. No mark present, No opinion can be given." 7. Autopsy on deceased dead body was performed on 1.9.1978 at 3.30 p.m. by Dr. H.C. Pandey M.O. PHC Bansi district Basti P.W.5. According to the doctor, deceased was 32 years of age and one day had elapsed since his death. Rigor mortis was present on his lower extremities. There was a single ante-mortem injury on the cadaver of the deceased which was as under- "Punctured wound 3 cm x .5 cm x muscle deep on the left side of chest and 10 cm below at the mid line." According to the doctor deceased had died because of shock and rupture of spleen vide autopsy report Ext. Ka-18. 8. There was a single ante-mortem injury on the cadaver of the deceased which was as under- "Punctured wound 3 cm x .5 cm x muscle deep on the left side of chest and 10 cm below at the mid line." According to the doctor deceased had died because of shock and rupture of spleen vide autopsy report Ext. Ka-18. 8. Charge-sheeting of the accused resulted in their summoning and finding their case triable by Session's Court, it was committed to the court of Session's where it was registered as S.T. No.40 of 1979, State Vs. Ashok Kumar Singh and others. Ist Additional Session's Judge, Basti charged the accused with respective offences committed by them under Sections 148, 302, 323, 147 and 302/149 IPC vide order dated 25.4.1980. All the accused persons denied those charges and claimed to be tried and consequently to establish their guilt, their prosecution commenced. 9. During trial, prosecution relied upon oral testimonies of informant Rajendra Prasad P.W. 1, injured Kallu P.W.2, Garib P.W. 3 besides I.O. SI Nurul Ain P.W. 4 and Autopsy doctor H.C. Pandey P.W. 5. 10. In their statements under section 313 Cr.P.C., all the accused pleaded a common defence of false implication and denial. Appellant ( A-1) further pleaded that he was standing at his granary when Rajendra came on a cycle and dashed it against him and when A1 accosted him then Rajendra went back to his house and returned along with his brothers and they all started assaulting A-1 at his door. Hue and cry raised by him attracted Chhotku, Pratap Singh and many others, who pelted brick bats. To establish their defence, appellant accused relied upon injury reports of A-1, A-2 and A-3, who were examined on 31.8.1978 at 5 P.M., 5.50 P.M. and 5.30 P.M vide Ext. Kha-1, Kha-2 and Kha-3. Dr. J.P. Singh had also examined these accused and had prepared their medical examination reports according to which, these accused persons had sustained following injuries:- "Kha-1 ( 1) Traumatic swelling on the Rt. side of the face with four parallel contusion in it. Reddish violet in colour each about 7cm x 1cm obliquely situated. ( 2) Contusion on the side back below the inferior border of both scapula. Obliquely situated 18cm x 1.6cm. Reddish violet in colour. ( 3) Contusion on the anterior aspect of the Rt. side of the face with four parallel contusion in it. Reddish violet in colour each about 7cm x 1cm obliquely situated. ( 2) Contusion on the side back below the inferior border of both scapula. Obliquely situated 18cm x 1.6cm. Reddish violet in colour. ( 3) Contusion on the anterior aspect of the Rt. Thigh ( mid), obliquely situated 13cm x 1.6cm reddish violet in colour. ( 4) abrasion on the right side leg anterior aspect 7cm long. Result- ( 1) All injuries are simple. ( 2) All caused by hard blunt weapon. Duration- Fresh. Kha-2 ( 1) Traumatic swelling 6cm x 5cm on the side head with laceration on it 3cm x 0.5cm x skin deep, clots present. ( 2) Contusion 13cm x 1.6cm on the upper side of the right scapula. Reddish violet in colour. Lying obliquely. ( 3) Contusion traversely situated on the mid back 11cm x 1.6cm. Reddish violet in colour. ( 4) Contusion on the side of the right arm anterior aspect. Obliquely situated 9cm x 1.6cm. Reddish violet in colour. Result- ( 1) All injuries are simple. ( 2) All caused by hard blunt weapon. Duration- Fresh. Kha-3 ( 1) Contusion on the back of the mid right forearm c traumatic swelling around it in 12cm x 12cm anterior contusion is 9cm x 1.6cm. Reddish violet in colour. ( 2) Cortosion 9cm x 1.6cm on the right shoulder lying obliquely. Reddish violet in colour. ( 3) Traumatic swelling on the left side of the chest 3cm below left nipple 9cm x 6cm. Reddish violet in colour. Result- ( 1) All injuries are simple. ( 2) All caused by hard blunt weapon. Duration- Fresh." 11. Learned Trial Judge after marshaling the facts, critically appreciating the same, held that prosecution had established it's case, against the appellants, regarding their participation in the crime but so far as proved offences were concerned, appellants were held guilty only under sections 148, 324, 324/149, 323, 147 I.P.C. and, therefore, it convicted and sentenced them for their respective offences, as has already been recorded in the opening paragraph of this judgment, and hence the same is being eschewed from being repeated. In this appeal, challenge has been thrown to the aforesaid conviction and sentence. 12. At the time when the appeal came up for hearing, nobody appeared to argue it and hence Dr. In this appeal, challenge has been thrown to the aforesaid conviction and sentence. 12. At the time when the appeal came up for hearing, nobody appeared to argue it and hence Dr. Abida Syed was appointed as amicus curiae to assist the Court. 13. Castigating the impugned judgment, it was contended that the same is unsustainable and the defence of the appellant's is equally probable. It was further submitted that the prosecution has not furnished any explanation about the injuries sustained by the accused and, therefore, none of the prosecution witnesses are reliable. Trial Judge himself had disbelieved prosecution allegation regarding commission of murder and, therefore, the narrated story by the prosecution witnesses is incredible and cannot form the basis of conviction and, therefore, the appeal deserves to be allowed. It was also submitted that the place of the incident is the house of A-1 and not as has been alleged by the prosecution and, therefore, appeal be allowed and surviving appellants be acquitted of their respective charges and be set at liberty. 14. Conversely Sri Sangam Lal Kesharwani, learned AGA argued that the prosecution has established it's case beyond all shadow of reasonable doubt and the defence of the appellants, of exercise of right of private defence, is incredible and cooked up. Nobody from the side of the appellants had lodged any FIR regarding any assault made on them. They, after the incident, rushed to the hospital only to get their injuries manufactured. None of the injuries sustained from the side of the appellants lend credence to their defence version. It was argued that the defence witness D.W. 1 Naval Kishore, examined by the appellants, contradicted the defence theory and his testimony is paradoxical with the defence of the accused stated by them in their statements under section 313 Cr.P.C. It was, therefore, submitted that the plea of exercise of right of private defence, raised by the appellants, are incredible and from their defence evidence also they have lend credence to the prosecution version and, therefore, the guilt of the appellants has been brought home successfully and appeal lacks merit and be dismissed. 15. I have pondered over rival contentions and have vetted through oral and documentary evidences available on trial court record. 15. I have pondered over rival contentions and have vetted through oral and documentary evidences available on trial court record. Before entering into disputed factual matrix of the case, it is revealed from the evidences of informant Rajendra P.W. 1 that all the accused persons and prosecution witnesses were closely related. A pedigree was evidenced by P.W. 1 in his examination-in-chief, according to which one Jawahar had two sons Ram Bahadur Singh and Deep Narain Singh. A-3 and A-4 are the sons of Deep Narain Singh while A-1 and A-2 are the sons of Ram Bahadur Singh. Hence all the four appellants are cousin brothers and, therefore, they could have joined hands together against their common enemy. A-5 is said to be their associates. In their statements under section 313 Cr.P.C., accused have not denied this relationship and, therefore, it is an established fact. Similarly from the side of the prosecution, it is established that Tameshwar and Balli were real sibling brothers being sons of Badri. Garib, Kallu, Rajendra and Dhunmun ( deceased) were real uterine brothers being sons of Balli. In the incident, Dhunmun had lost his life while Rajendra, Garib, Kallu and Tameshwar had sustained injuries. Thus, they all belonged to one family and are real and cousin brothers and uncles. Some other admitted facts of the incident are the date, time of the incident, which has not been disputed. It is also not disputed that in the incident, informant and injured along with A-1, A-2 and A-3 were present and had participated. Thus what is to be judged is as to whether the version of the prosecution is credible or that the defence of the appellants is probabilized on the preponderance of probability. When oral and documentary evidences from both the sides are critically appreciated from that angle, it is revealed that the prosecution story of appellants being aggressor is more credible and confidence inspiring rather than the defence of the accused. According to the prosecution, incident started because the accused appellants had raided their house. Place of the incident, albeit was disputed by the accused appellants, but the same has been established convincingly by the prosecution. Blood was collected by the I.O. from the door of the informant where the corpse of the deceased was lying. No blood was found at the door of the accused appellants. Place of the incident, albeit was disputed by the accused appellants, but the same has been established convincingly by the prosecution. Blood was collected by the I.O. from the door of the informant where the corpse of the deceased was lying. No blood was found at the door of the accused appellants. It is not the case of the accused that any blood had tickled down during the incident at his door. Thus the prosecution by leading cogent and confidence inspiring evidence has established that, in fact, the assault had taken place at the door of the informant. It is also not the case of the accused that the body of the deceased was carried from their door to the door of the informant. Thus, the defence had failed to dislodge prosecution allegations of place of incident being informant's door. Another fact, which is surfaced by vetting of evidences is that deceased had died because of sustained spear injury as is indicated by his autopsy report. According to prosecution case, this fatal injury was caused by A-1 when he was instigated by A-5. According to the defence, deceased was not present at the spot at all. Such a claim by the accused appellants is fabricated for the reason that death of the deceased after sustaining punctured wound is a proven fact. P.W. 5, Dr. H.C. Pandey, has proved his autopsy report. No cross examination of this doctor was done at all by the defence to dislodge prosecution version of deceased sustaining a punctured wound by spear. Thus, because of non challenge of the said prosecution version, there is no other scope for this Court except to conclude that the said version is a credible and true narration about the happening of the incident. Consequently, prosecution story of deceased sustaining fatal injury during course of the incident is proved beyond all shadow of doubt. This certainly was not because of exercise of right of private defence. A-1 who had wielded spear during the incident, at the door of the informant, certainly was not wielding it in exercise of right of private defence. It is noted that power of right of private defence has been conferred by the statute to defend person or property of an individual and it is not a right of retaliation nor is a right to shield the aggressor. It is noted that power of right of private defence has been conferred by the statute to defend person or property of an individual and it is not a right of retaliation nor is a right to shield the aggressor. The entire evidences of P.W. 1 to P.W. 3 and their cross examinations unerringly proved that it was the appellant accused who were the aggressors and consequently they could not be conferred benefit of that right. 16. At this juncture, turning to another argument of the accused that the prosecution had not been able to explain injuries sustained by the accused and, therefore, none of the prosecution witnesses are reliable or they had suppressed the genesis of the incident, I am of the view that the said argument does not hold any water at all. In the FIR, it is clearly mentioned by the informant that they had also pelted stones. Injuries of the accused were got proved through P.W. 5 by the defence counsel but he could not muster any courage to ask from the doctor that the injury sustained by the three appellants could not have been caused by brick bats. Although P.W. 5 had not examined these injured but the accused could have, through the said witness, probabilize their defence, which they had failed to do. The witnesses in their depositions have clearly explained those injuries during trial. They are clear in their depositions that the said injuries were caused to the accused by pelting of stones and brick bats. In such a view, the criticism that the prosecution had not offered any explanation of accused injuries is against the merits of evidences on record and is hereby repelled. 17. Defence has not been able to dislodge the testimonies of fact witnesses P.W. 1 to P.W. 3. Their presence at the spot is established beyond all shadow of doubt. Incident did take place as the defence of the appellants is that of a cross version where they have admitted happening of the incident and they have also not challenged that some persons from the side of the prosecution had sustained injuries during the course of the incident. In such a view, prosecution version of appellants being aggressor is more probable than the defence plea of exercise of right of private defence. In such a view, prosecution version of appellants being aggressor is more probable than the defence plea of exercise of right of private defence. From the above discussion, it is established beyond all reasonable doubt that the accused appellants were the aggressors and hence they cannot claim right of private defence. Testimonies of prosecution witnesses are credible, corroborative of each other and are confidence inspiring and, therefore, I do not find any reason to take a different view that what has been taken by the trial Judge, that the guilt of the appellants have been successfully anointed. 18. Turning to the crime committed by the appellants, trial Judge has not faltered at all. According to the doctor's evidence, deceased had died because of bursting of spleen. Another injury was sustained by him was only skin deep. Although the doctor had said that the spleen had bursted because of sustained injury but there is no evidence on record that A-1 knew that the deceased had an enlarged spleen. Autopsy report of the deceased indicate that he had a thin body with enlarge liver, which was black in colour. His spleen was also enlarged and ruptured. Deceased body was pale and he was anaemic. His eyes were open and yellowish. In such a view, it is established that the deceased had a fragile body and because of shock and rupture of spleen, which could have taken place because of fall as well, he had died. Trial Judge, therefore, took a cautious approach in holding that the accused persons were guilty only under section 324 I.P.C. and not under section 302 I.P.C. The said view by the trial Judge cannot be said to be against the merits of evidences on record or are improbable. Therefore, I am of the opinion that trial Judge has not faltered on the said score as well. 19. Coming to the awarded sentence, incident had occurred in 1978. One of the appellant A-2 has expired. Only a single blow was given to the deceased by A-1. He and A2, who were armed with sharp edged weapon and firearm, were charged under section 148 I.P.C. Rest of the three appellants A-3, A-4 and A-5 were charged under section 147 I.P.C. Their conviction under section 324/149 I.P.C., therefore, cannot be sustained as none of these three appellants A-3 to A-5 wielded any sharp edged or cutting weapons. He and A2, who were armed with sharp edged weapon and firearm, were charged under section 148 I.P.C. Rest of the three appellants A-3, A-4 and A-5 were charged under section 147 I.P.C. Their conviction under section 324/149 I.P.C., therefore, cannot be sustained as none of these three appellants A-3 to A-5 wielded any sharp edged or cutting weapons. They were armed with blunt object and whip ( hunter). In such a view, conviction of all these appellants under section 324/149 I.P.C. cannot be sustained and has to be scored out. What has been established on the record is that out of surviving appellants A-1 was guilty under sections 324 and 148 I.P.C. whereas rest of the three appellants A-3, A-4 and A-5 were guilty under sections 323 and 147 I.P.C. only. For the charge under section 323 I.P.C. they have already been sentenced to one year RI. For offence under section 147 I.P.C., they were sentenced to two years RI. I am of the opinion that because of lapse of three decades and there being no intention to cause deceased death harbingered by A-3 to A-5, they deserve a merciful sentence. They had no criminal proclivity and the incident had occurred on a pity dispute. Even during the pendency of their appeal in this Court none of these appellants had involved themselves in any criminal activity at least, there is no report against them exists on the record. 20. In such a view, appeal is allowed in part. Conviction of A-1 under section 324 I.P.C. is maintained. For the said charge, he has been rightly sentenced to three years RI, which does not call for any interference by this Court. His conviction under section 148 I.P.C. is also well merited and the sentence on the said score also does not call for any interference. Appeal of appellant A-1, therefore, is dismissed in full. He is on bail, he is directed to surrender immediately to his personal and surety bonds to serve out remaining part of his sentence. 21. Appeal of appellant A-2 has already been abated. Appeal of appellants A-3, A-4 and A-5 is allowed in part. Appeal of appellant A-1, therefore, is dismissed in full. He is on bail, he is directed to surrender immediately to his personal and surety bonds to serve out remaining part of his sentence. 21. Appeal of appellant A-2 has already been abated. Appeal of appellants A-3, A-4 and A-5 is allowed in part. Their conviction under sections 324/149 I.P.C. is scored out but it is maintained for offences under Sections 323 and 147 I.P.C. and, for the offence under section 323 I.P.C., they are sentenced to the period of imprisonment already undergone by them with fine of Rs. 1,000/- on each of the appellants. For the proven charge under section 147 I.P.C., they are sentenced to the period of imprisonment already undergone by them with fine of Rs. 10,000/- on each of these appellants. Out of total fine, Rs. 20,000/- is awarded as compensation to the informant for the injury caused to him. These appellants are permitted to deposit the fine within a period of one month from the date of receipt of the realization warrant by the trial court against them. These appellants are on bail, they need not surrender but their surety and personal bonds shall be discharged only after they have deposited the fine imposed herein above. In the event of default they shall serve the default sentence for six months RI. 22. Let a copy of the judgment be certified to the trial court for it's intimation.