JUDGMENT Kalimullah Khan, J.: - We have heard Sri R.Y. Pandey, learned A.G.A. appearing for the appellant-State, and Sri V.M. Zaidi assisted by Sri D.N. Yadav, learned counsel appearing for the respondents-accused. Perused the record. 2. As per report of C.J.M. Ghazipur and order of the Court dated 18.9.2003, accused respondent no. 3, namely Kuber Yadav has died and therefore appeal against him stands abated. 3. This government appeal has been filed under Section 378 Cr.P.C. by State of U.P. against the accused, (1) Rajnath (2) Lachhman Yadav both sons of Kuber Yadav, and accused no. 3, Kuber Yadav son of Jauhar, all R/O Sauna (Arare) P.S.- Saidpur, District- Ghazipur, challenging the impugned judgment and order of acquittal dated 23.12.1981, passed by Ist Addl. Sessions Judge, Ghazipur in Sessions Trial No. 77 of 1981, on the ground that the judgment is against the law and facts of the case, and the learned trial court has not followed the settled principles of appraisal of evidence while appreciating the evidence of witnesses on record and thereby miscarriage of justice has occurred. 4. Parashuram son of Jauhar Yadav, R/O Village-Sauna (Arare), P.S.- Saidpur, District-Ghazipur, lodged his report with an accusation that he has four brothers. All of them residing separately as partition has taken place among them inter see. His brothers namely, Sangam and Dwarika lived together. First of all, first informant Parashuram had separated from his other four brothers. When rest four brothers living together, they had purchased four Bighas of agricultural land and later on, about one year before the incident of marpeet i.e. 26.11.1977, separation took place among them also in the manner that Sangam and Dwarika remained joint while Kuber and Shanker separated from them and from each other. There was a pumping set installed in that part of said four Bighas of land, but on partition it was allotted to the accused, Kuber and it was run by electricity. 5. The prosecution case is that the pumping set was installed when Sangam, Dwarika, Kuber and Shanker were still joint and in the later partition it was given to Kuber without other three brothers being given any recompense for their shares. It was solemnly agreed between them that Sangam, Dwarika and Shanker would be entitled to take water from the pumping set for irrigating their fields whenever they might require, without paying any thing to Kuber for the same. It was solemnly agreed between them that Sangam, Dwarika and Shanker would be entitled to take water from the pumping set for irrigating their fields whenever they might require, without paying any thing to Kuber for the same. 6. On 26.11.1979, in the morning Sangam asked Kuber to allow him to take water on that day from the pumping set for irrigating his field and Kuber consented telling that he might take the water since 2.00 P.M. when electric current was likely to be available. Parashuram also intending to irrigate the field, requested Kuber to allow him to take water from the pumping set and Kuber gave his assent to him also telling that he might take the water after the field of Sangam would have been irrigated. Subsequently, at about 2.00 P.M., Sangam went to the pumping set when perhaps it had started running, and asked Kuber for allowing him to take water, but Kuber declined the same. The other two accused, Rajnath and Lachhman, were also present there. Sangam got annoyed and exclaimed that he came to take on having been assured to get it, but was being refused. Thereafter, Sangam walked to the east along with the water channel and went to the place from where the water might be diverted to his field. The three accused also went behind him to that place to stop him from diverting the water. Now an exchange of abuses ensued between Sangam and the accused. Parashuram, Ram Badan, Tilku and Smt. Sirtaji, the wife of Sangam, were cutting grass at nearby places and they proceeded to that place, but before they could actually reach it, the accused, who were carrying lathis in their hands, wielded the same on Sangam. Parashuram and Badan hurried their steps to save Sangam and then they too were struck and caused injuries. Parashuram was injured by accused, Lachhman, whereas Ram Badan by the accused, Rajnath. Parashuram and Ram Badan, however, picked up bamboo pieces from the nearby enclosures set up around small mango plants and wielded the same in exercise of right of private defence. One of the blow armed by the accused Lachhman landed on the head of Sangam and as a result of which Sangam fell down on the ground after sustaining injuries. He was also given several other lathi blows by the accused. One of the blow armed by the accused Lachhman landed on the head of Sangam and as a result of which Sangam fell down on the ground after sustaining injuries. He was also given several other lathi blows by the accused. Consequently, Sangam succumbed to his injuries and the accused persons ran away to the west. 7. Parashuram got the report of this incident written out by one Balrup which he has proved as (Ext. Ka-1) and handed over it to P.S. Saidpur, on the basis of which a check report (Ext. Ka-9) was drawn and a case was registered at serial no. 10 in the G.D. (vide Ext. Ka-10). S.I. Rajnarain Misra was not present on the station, therefore, second officer, S.I. A.S. Jafri (P.W. 7) started investigation. He examined Parashuram and Ram Badan, both the injured. They were sent to the Primary Health Centre, Saidpur for their medical examination. S.I. Jafri reached at the scene of incident at about 7.30 P.M. in the evening. He deputed constables Dina Nath Pandey and Surya Nath Singh to apprehend the accused persons. He prepared the inquest report (Ex. Ka-11) and sent the body to the mortuary for post mortem examination. S.I. A.S. Jafri, finding blood stains on the ground, took samples of blood stained and unstained earth and also prepared the recovery memo and went in search of accused-respondents on the information given by reliable persons. He arrested two of the accused, Rajnath and Lachhman at Athagawan turning of the road going to Varanasi. According to him, these accused persons were inflicted some injuries during the course of their arrest. On their pointing out, S.I. A.S. Jafri and the constables returned to the place of incident and from a field being at a distance of about 25-30 paces from the scene of occurrence, the accused persons took out three lathis (Exts. 4, 5 and 6) which are said to have been used by them. One of these lathis was stained with blood. Further investigation was conducted by S.I. Rajnarain Misra who examined the accused Rajnath and Lachhman, the witnesses of recovery of lathis, and prepared the site-plan. The accused, Kuber later on surrendered him in the court and was interrogated by S.I. Rajnarain Misra in jail. After completing the investigation, he submitted the charge-sheet on 19.12.1979. 8. Injured Ram Badan and Parashuram, were medically examined by Dr. The accused, Kuber later on surrendered him in the court and was interrogated by S.I. Rajnarain Misra in jail. After completing the investigation, he submitted the charge-sheet on 19.12.1979. 8. Injured Ram Badan and Parashuram, were medically examined by Dr. V.P. Gupta, Medical Officer of Primary Health Centre, Saidpur, next day i.e. 27.11.1979 at 3.00 A.M. Ram Badan had sustained a lacerated wound measuring 1-1/2" x 1/2" x skin deep on the right ear, and Parashuram a swelling measuring 2" x 1" on the left forearm. Both the aforesaid injured persons also complained of pain. Dr. V.P. Gupta advised for X-ray examination of injured Parashuram, which was performed by Dr. P.C. Srivastava, Radiologist of the District Hospital, Ghazipur on 1.12.1979 and he found fracture of radius of the left forearm. These doctors were examined as P.W. 4 and 6 and they had testified the aforesaid injuries of fracture of left firearm of Parashuram and have also proved the injury reports and X-ray report (Exts. Ka-3, Ka-4 and Ka-5). The autopsy on the body of Sangam was conducted on 27.11.1979 at 2.00 P.M. by Dr. Ram Lal Rai, Superintendent of the District Hospital, Ghazipur who found the following three ante-mortem injuries: 1. Contused wound 2 cm x 1 cm x bone deep on the left side of head, 6 cm above the left ear. 2. Abraded contusion 3 cm x 2 cm on the back of neck, 2 cm above the seventh cervical vertebra. 3. Abrasion 4 cm x 1.5 cm on the back of left scapula. 9. On dissection of the body, it was found that left parietal & temporal bones as well as the base of skull were fractured and the brain was lacerated under injury no. 1. 10. In the opinion of doctor Rai, death was caused due to these injuries. 11. Dr. Ram Lal Rai has been examined as P.W. 3 who certified the above external and internal injuries, cause of death, and also proved the post mortem report (Ext. Ka-2). 12. Accused, Lachhman was charged for the offence punishable under Section 302 , 302/34 and 325 I.P.C., while accused, Raj Nath under Sections 302/34 and 323 IPC and Kuber Yadav was charged for the offence punishable under Section 302 /34 and 323 I.P.C. Accused, Kuber and Raj Nath were also charged for the offence under Section 34 I.P.C. 13. Ka-2). 12. Accused, Lachhman was charged for the offence punishable under Section 302 , 302/34 and 325 I.P.C., while accused, Raj Nath under Sections 302/34 and 323 IPC and Kuber Yadav was charged for the offence punishable under Section 302 /34 and 323 I.P.C. Accused, Kuber and Raj Nath were also charged for the offence under Section 34 I.P.C. 13. The accused persons denied the charges and claimed their trial. 14. In order to prove its case, the prosecution examined 7 witnesses, namely Parashuram (P.W. 1) who has proved the written report (Ex. Ka-1) and testified on the facts, Ram Badan (P.W. 2) witness of fact has proved the same, Dr. Ram Lal Rai (P.W. 3), has conducted the post mortem on the body of Sangam (since deceased), Dr. B.P. Gupta (P.W. 4) has proved the injury report of Ram Badan and Parashuram, S.I. Raj Narain Misra (P.W. 5) has proved the investigation and submitted charge sheet, Dr. P.C. Srivastava (P.W. 6) has proved the X-ray plat and injuries on Parashuram and S.I. A.S. Jafri (P.W. 7), has proved the investigation conducted by him. Constable, Daya Shanker Singh is the carrier of dead body and has filed affidavit proving the aforesaid facts. 15. All three accused persons were examined under Section 313 Cr. P. C. who denied the prosecution evidence. They have examined Dwarika as D.W. 1 who has proved the defence case. 16. The defence case of accused persons is that on the day of incident, the pumping set had started running from 9.00 A.M. and the water of it was being taken by Doodhnath and then by Dulare and was going in the field of aforesaid, Doodhnath to irrigate his Chana crop. 16. The defence case of accused persons is that on the day of incident, the pumping set had started running from 9.00 A.M. and the water of it was being taken by Doodhnath and then by Dulare and was going in the field of aforesaid, Doodhnath to irrigate his Chana crop. At about 2 O' clock, Sangam, Parashuram, Ram Badan along with Jamuna, Ramrup, Balrup, Suraj, Bachan, Brijbasi and Tilku, all armed with lathis, pharsa and hathaura, came to the place of incident and started blocking the onward flow of the water and diverting it to the field of Sangam, upon which accused, Rajnath and Lachhman went there and told them that Sangam might take the water after the field of Raj Nath is irrigated, but Sangam and party insisted upon taking the water at that very time and they also assaulted Raj Nath and Lachhman with their lathis and then these accused persons plied lathis, which they were carrying in their hands, in exercise of right of private defence. During this incident, Kuber reached there who too was struck and caused injuries by Sangam and his companions. Admitting the fact that they were five brothers, Parashuram alone had separated 10-11 years back and after his separation the remaining four brothers jointly purchased four bighas of land and subsequently they too separated from one another. However, they have not admitted that the pumping set was installed when these other four brothers were joint. Their contention is that it was installed after the partition between these other four brothers, by Kuber alone; and that there was no such agreement that the other brothers, Sangam, Dwarika and Shanker would be given water from the pumping set free of charge for irrigating their fields whenever they might require. According to the accused, who-so-ever took water for irrigating his field from the pumping set, paid them the fixed charges for the same. 17. In their defence, accused persons further denied to have been arrested by the police at Athgawa turning of the road and sustained injuries during process of their arrest. They alleged that they had gone to the police station, Saidpur for lodging the report of this incident, but they were taken into custody by the police and their report was not taken down, hence on 27.11.1979, a written complaint (Ext. They alleged that they had gone to the police station, Saidpur for lodging the report of this incident, but they were taken into custody by the police and their report was not taken down, hence on 27.11.1979, a written complaint (Ext. Kha-1) relating to this occurrence was sent by Kuber through registered post to the Superintendent of Police, Ghazipur, stating therein that on that day, at about 2.00 P.M. Deonath requested him for water to be given from the pumping set in order that he might irrigate his potato and Gram (Chana) crops, and he gave his assent. Thereafter, Sangam, Parashuram, Jamuna, Ram Surat, Ramrum, Ram Badan, Balrup, Tilku, Birbasi and Bechan, on account of enmity arising from litigation, came armed with lathis to the pumping set. Parashuram and Sangam said that they would take water to their own fields upon which Kuber and his sons said to them that they had already promised to give water to Doodhnath and so Parashuram and Sangam might take the water after the crops of Doodhnath would have been irrigated. This did not satisfy them and they insisted to take the water at once. Raj Nath and Lachhman forbade them from taking the water which en-ranged them and they started abuses on Kuber and his sons and they also started beating them and some of them also started breaking the pumping set with lathis and hathaura and at this stage, Kuber and his sons ( all three accused persons) plied their lathis in exercise of right of self-defence. It was also alleged in the said complaint that Lachhman and Rajnath immediately proceeded to P.S. Saidpur to lodge the F.I.R. But instead of lodging their FIR, they were taken into police custody. Kuber proceeded to the Dispensary at Khanpur. He was medically examined there. He made the complaint. 18. The accused, Rajnath and Lachhman, were medically examined in jail. The injury reports (Exts. Kha-5 and Kha-6) prepared by jail doctor reveal that they had sustained the following injuries: - Rajnath: 1. Contusion 3 cm x 2 cm on the back of right scapula. 2. Contusion 2.5 cm x 2 cm on the back of right elbow. 3. Contusion 2.5 cm x 2 cm on the dorsal aspect of right hand. 4. Abrasion 1/2 cm x 1/2 cm on the back of right thumb. 5. Contusion 3 cm x 2 cm on the back of right scapula. 2. Contusion 2.5 cm x 2 cm on the back of right elbow. 3. Contusion 2.5 cm x 2 cm on the dorsal aspect of right hand. 4. Abrasion 1/2 cm x 1/2 cm on the back of right thumb. 5. Contusion 1/2 cm x 1/2 cm on the back of base of right index finger. 6. Contusion 2 cm x 1.5 cm on the back of lower third of left fore-arm. Lachhman: 1. Lacerated wound 3 cm x 1/2 cm x skin deep on the left parietal aspect of the scalp. 2. Lacerated wound 4 cm x 1/2 cm x skin deep on the posterior aspect of the skull, 1-1/2" away from injury no. 1. 3. Contusion 2.5 cm x 2 cm on the top of right shoulder. 4. Contusion 2.5 cm x 1.5 cm on the back & lower third of left fore-arm. 5. Contusion 3 cm x 1.5 cm on the back of left hand. 6. Contusion 6 cm x 2 cm on the middle third of left back. 19. The accused Kuber, as it is alleged, also got medically examined on 20.11.1979 at 4.00 P.M. at the Primary Health Centre, Khanpur by its medical officer, Sri Ram Bilas Dubey (D.W. 3), who found following injuries on his person: - 1. Contusion 9 cm x 2.5 cm, on the left fore-arm. 2. Contusion 3 cm x 2 cm, on the left side chest. 3. Contusion 3 cm x 2.5 cm, on the left side head. 4. Contusion 6 cm x 2 cm, on the left side back. 20. To substantiate its' case, the prosecution had examined to injured persons namely, Parashuram and Ram Badan (P.Ws. 1 and 2 respectively) as eye-witnesses. Both the aforesaid witnesses have submitted the prosecution case as stated in the FIR. 21. After hearing learned counsel for the parties and perusal of record, the trial court has held that the prosecution has miserably failed to prove its case beyond reasonable doubt and accordingly recorded finding of acquittal of three accused persons on the following grounds: 1. that there are material contradiction in the evidence of Parashuram and Ram Badan on the point that in the morning Sangam has approached Kuber to take the water from the pumping set since 2 O' clock; 2. that there are material contradiction in the evidence of Parashuram and Ram Badan on the point that in the morning Sangam has approached Kuber to take the water from the pumping set since 2 O' clock; 2. that in the FIR it was mentioned that prosecution side defended with their lathis, but during the trial, they took the stand that Parashuram and Ram Badan were wielding bamboo pieces; 3. that according to S.I., A.S. Jafri, he completed the inquest at 9.30 P.M. and prior to it S.I. Raj Narain Misra, had reached there, whereas according to S.I. Raj Narain Misra, he reached at the spot at about 12.00 O' clock. 4. that in his examination-in-chief, S.I., A.S. Jafri stated that on the information of some respectable persons he had apprehended the accused persons, but in his cross-examination, he has stated that said respectable persons had not disclosed the place where from the accused persons were arrested; 5. that S.I., A.S. Jafri, stated that during course of arrest, Lachhman and Rajnath had sustained injuries, but in his cross-examination, he has stated that the fact that accused persons have not sustained injuries in the incident, is missing in the case diary; 6. that there is number of cuttings in the case diary made by both the aforesaid S.Is.; 7. that the complaint made to the Superintendent of Police, Ghazipur by Kuber was marked to Circle Officer to investigate the matter, but concerned Circle Officer did nothing; 8. that it has come on evidence that pumping set had started since 9.00 A.M., but prosecution case is that it had started at 2.00 P.M. on the day of incident; 9. that even from the FIR, it transpires that the prosecution side held lathis with them since prior to the incident, but in order to show that they were not aggressor, they changed their stand during course of trial that they had no lathi rather they picked up bamboo pieces and defended themselves. 22. On the basis of the aforesaid contradictions and factual position, learned trial court opined that within all probabilities Sangam and his supporters armed with lathis went there to forcibly divert the water to his field which resulted in marpeet between the parties. When they assaulted the accused persons then they appear to have exercised their right of private defence. 22. On the basis of the aforesaid contradictions and factual position, learned trial court opined that within all probabilities Sangam and his supporters armed with lathis went there to forcibly divert the water to his field which resulted in marpeet between the parties. When they assaulted the accused persons then they appear to have exercised their right of private defence. Learned trial court has observed that no doubt the right of private defence exercised by accused did not extend to the causing of death of Sangam, but when two factions get poised against each other and start dealing lathis, one on the other, it is difficult to expect in such moments of excitement or disturbed mental equilibrium one involved in the marpeet to coolly weigh, as if in golden scales, and calmly determine, with composed mind, as to what precise kind and gravity of blow would be legally sufficient for effectively meeting the aggression. 23. The learned trial court has further observed that the accused Lachhman and Rajnath appear to have exceeded the right of private defence, but when they started wielding their lathis on them indiscriminately and there are injuries on vital parts of their persons like head, it shall have to be held that they did not in this case exceed that right by dealing excessive blows on Sangam resulting in his death. It may be mentioned that the injuries on the side of the accused are greater in number than the injuries suffered by other side. Accordingly, the learned trial court held that the prosecution has failed to bring the charges home to the accused and, therefore, acquitted all the accused persons. 24. Aggrieved, this government appeal has been preferred. 25. Learned A.G.A. has submitted that accused-respondents were aggressor. They have exceeded their right of private defence. They did not sustain any injury at the spot rather during course of their arrest by the police subsequent to the incident, they sustained injuries at the instance of police, therefore, no right of private defence accrue to them and this aspect of the matter was not taken into consideration by the trial court, hence trial was decided in terms of acquittal causing miscarriage of justice and the impugned judgment deserves to be reversed and the accused are also liable to be guilty for the murder of Sangam. 26. 26. Per contra, learned counsel for the accused-respondents has stated that it has come in the evidence that Sangam (since deceased) had reached at the spot along with farsa and kulahadi. It has further come in the evidence that he along with his companions, Parashuram and Ram Badan assaulted accused Lachhman, Rajnath and Kuber with lathi. The number and seat of injuries caused by prosecution side on their persons including vital part of the body entitle them to exercise their right of private defence with lathis. Sangam has sustained single blow on his head which resulted into his death. No repeated blow has been given at his head, therefore, in the fact and circumstances of the case, it cannot be said that the accused have exceeded in exercise of their right of private defence. He has further submitted that the I.O., A.S. Jafri has given wrong deposition in the court that the accused, Lachhman and Rajnath sustained injuries during course of their arrest because no such fact is mentioned in the case diary or in G.D. concerned. It is clear stand of the defence since beginning that they had been assaulted with lathis by the prosecution side and in exercise of their right of private defence, they plied their lathis, therefore, they are not aggressor. 27. We have gone through the evidence on record keeping in mind the submissions made by learned counsel for the parties and also the reasoning given by the trial court for recording finding of acquittal in this case. 28. We are of the considered opinion that the view taken by learned trial court regarding finding of acquittal of accused is quite possible view in the fact and circumstances of the case which needs no interference. 29. The case originally set up in the first information report is that the prosecution side indulged into marpeet with lathi, but subsequently during course of trial they improved their case that they had not lathis with them rather when they were being beaten by Parashuram (P.W. 1) and Ram Badan (P.W. 2), they picked up pieces of bamboo lying there and with the aid of these pieces they defended themselves. It is clear cut improvement of fact of this case to show that they were not aggressor, but since they themselves mentioned in the report that they were armed with lathis then the aforesaid improvement of attacking with bamboo pieces is fatal to the prosecution. 30. Likewise, number of injuries sustained by Lachhman and Ram Badan received during incident was tried to belie by saying that they were caused during their arrest to prevent them from pleading their right to exercise the right of their private defence, which was ultimately resulted into bundle of lie for want of any such entry in the G.D. and also in the case diary. Meaning thereby that investigation is not fair and I.O. was deliberately telling lie to get the guilt fasten with the head of accused at any cost. 31. From perusal of entire record, it transpires that the trial court has rightly held that within all human probabilities deceased party appears to be aggressor because it were they who had gone to divert the flow of water going on in the field to Doodhnath son of another brother of Sangam and the aforesaid act of Sangam was objected too by sons of Kuber, whereby Sangam and party attacked on Lachhman and Ram Badan which gave them right of self defence. Single blow caused on the head of Sangam cannot be said that the accused persons exceeded in exercise of their right of private defence. The only probable view in this case appears to be acquittal of the accused and no other possible view is deducible from the evidence on record. 32. No illegality or infirmity in the order impugned could be shown by learned A.G.A. We, therefore, concur the reason and findings recorded by the court below and uphold the judgment and order impugned in this appeal. 33. The appeal lacks merit and is, accordingly, dismissed.