JUDGMENT Amar Saran & Vijay Lakshmi,JJ.: - We have heard Sri R.S. Shukla, learned counsel for the appellants and Sri R.K. Singh, learned A.G.A. and Sri Anand Tiwari, learned A.G.A. for the State. 2. This Criminal Appeal arises from the judgment of the VI th Additional Sessions Judge, Shahjahanpur, dated 19.11.1982 in S.T. No. 795 of 1981, whereby the appellants have been convicted and sentenced to one year's R.I. under section 323 I.P. and to imprisonment for life under section 302 I.P.C. 3. As a report dated 13.9.2007 was received from the C.J.M. Shahjahanpur mentioning that the appellant Shiv Raj Singh has died the appeal preferred by the appellant Shiv Raj Singh was made to abate by an earlier order dated 24.2.2012. Only the appeal against the appellants Satya Pal and Maiku survives. 4. The case was initiated on an N.C.R. No. 441 of 1980 lodged by Gendan Lal against Shiv Raj Singh, Satyapal Singh and Maiku which was registered by P.W. 6 Constable Clerk Yad Ram at Police Station Jaitipur on 8.11.80 at 6.45 pm regarding an incident which had taken place on 8.11.80 at 4.30 pm. 5. The informant Gendan Lal PW 1 alleged in this report that there was a subsisting enmity between the parties and on the fateful day a quarrel had taken place in the Saturday Bazaar in village Alampur between the sweepers of Alampur and Bahaiya, in which dispute the appellant Shiv Raj Singh (whose appeal has abated) had asked the deceased Brij Lal not to intervene, but the deceased had not heeded the request. Thereupon, the accused are said to have given lathi blows to the deceased Brij Lal and another blow was also given to Akhtar, who had intervened. Brij Lal had died after 9 days. The case was converted to one under section 304 I.P.C. by the investigating officer PW 7 Kali Shankar Tiwari and the charge sheet was subsequently submitted under sections 323, 504, 506 and 304 I.P.C. against the three appellants. PW 6 Constable Clerk Yad Ram has also admitted in his cross examination that Shiv Raj Singh and one Bajrangi had come to the police station on 8.11.1980 at 11 p.m, with injuries on their persons, and an entry to this effect was made at rapat No. 23 in the G.D. He also proved that a cross report had been lodged by Bajrangi (Ext. Kha-3) under sections 323, 504 and 506 I.P.C. against the prosecution side. 6. The deceased Brij Lal and the injured Akhtar on the side of the prosecution and Shiv Raj Singh and Bajrangi on the side of the accused were medically examined by P.W. 4 Dr. R.P. Gulati. Akhtar aged 35 years, who had been brought by Home Guard Babu Ram was medically examined on 9.11.1980 at 3 a.m. Dr. R.P. Gulati had found the following injuries on the person of the injured Akhtar: - (1) Lacerated wound 2 ½ cm x ½ cm x skin on front of head middle, 8 cm above root of nose. Injury was simple caused by blunt object. Duration about ½ day. 7. The doctor had examined Brij, Lal aged 50 years on 9.11.1980 at 3.30 a.m. who was also brought by Babu Ram, Home Guard. The doctor found the following injuries: - (1) Lacerated wound ½ cm x 1/6 cm x skin deep on the face just below middle of left eyebrow. (2) Abrasion ½ cm x ½ cm on left upper eyelid. (3) Lacerated wound 1 cm x .5 cm x skin deep on right side head 4 cm above middle of right eyebrow. (4) Lacerated wound 1.5 cm x 1/6 cm x skin deep on the right side of head 7 cm above right ear. (5) Lacerated wound 6.5 cm x 1 cm x bone deep on left side of head 1 cm above injury No. 4. Injuries No. 1 and 2 were simple. Injuries No. 3, 4 and 5 were kept under observation and the injured was referred to District Hospital, Shahjahan pur. 8. Dr. R.P. Gulati also proved the injury of accused Shiv Raj Singh. He stated that the appellant Shiv Raj Singh was examined on 9.11.1980 at 4 p.m. He had following injuries: - (1) Lacerated wound 6 cm x ½ cm x skin deep on the front of the face 10 cm above root of nose. (2) Lacerated wound 3.5 cm x ¼ cm x skin deep on the back of head 9 cm above the left ear. (3) Scabbed abrasion .5 cm x .5 cm behind the left hand of back of left elbow. (4) Scabbed abrasion ½ cm x 1/2 cm on back of right elbow. (5) Scabbed abrasion ¾ cm x ½ cm on back of chest. (3) Scabbed abrasion .5 cm x .5 cm behind the left hand of back of left elbow. (4) Scabbed abrasion ½ cm x 1/2 cm on back of right elbow. (5) Scabbed abrasion ¾ cm x ½ cm on back of chest. (6) Scabbed abrasion .5 cm x .5 cm behind the right index finger of right hand. (7) Contusion 3 cm x 2 cm on the lower 1/3rd part of the back. (8) Scabbed abrasion 3 cm x .5 cm on the upper part of the back. All the injuries were simple and were caused by blunt object. They were one day old. On 9.11.1980 at 4.35 p.m. P.W. 4 Dr. Gulati examined Bajrangi. He had the following injuries: - (1) Lacerated wound 3 ½ cm x ½ cm x muscle deep on back of left elbow. (2) Lacerated wound ½ cm x 1/6 cm x skin on back of left arm lower 1/3rd part of the left arm. All the injuries were simple and caused by blunt object and about one day old. The Doctor admitted that the injuries of these injured could have been caused on 8.11.1980 at about 4.30 p.m. 9. After the deceased Brij Lal died on 17.11.80 at 4.05 a.m. his postmortem examination was conducted by P.W. 5 Dr. Satyapal on 17.11.1980 at 5.20 P.M. which revealed the presence of the following 2 injuries : (1) Fresh healed wound 10 cm. long, 7 cms. above right ear going towards forehead. (2) Healed abrasion 1 cm. X 1 cm. over right eyebrow. There was a fracture of the right parietal bone. 10. Apart from the aforementioned formal witnesses, 3 witnesses of facts have been examined. They are P.W. 1 Gendan Lal, P.W. 2 Akhtar and P.W. 3 Dataram. 11. The deceased Brij Lal was the son-in-law of the informant P.W. 1 Gendan Lal's cousin brother. He reiterated the version mentioned in the N.C.R. lodged by him in his examination in chief. He further stated that on the fateful day at about 4.00 P.M. a bazaar was being held in the grove of Brij Lal, where he had gone along with Jalim, Akhtar and Dataram. A fight had taken place between the sweepers. He reiterated the version mentioned in the N.C.R. lodged by him in his examination in chief. He further stated that on the fateful day at about 4.00 P.M. a bazaar was being held in the grove of Brij Lal, where he had gone along with Jalim, Akhtar and Dataram. A fight had taken place between the sweepers. The deceased Brij Lal had tried to stop the fighting between the sweepers (Ishacharan from village Nadaiya and Raghunath from village Alampur) as he considered the quarrel to be his personal insult as he was the owner of the land. The appellants Shiv Raj Singh, Satyapal Singh and Maiku who were present there were annoyed with the intervention in the sweeper's quarrel by the deceased, with whom they had a preexisting enmity. Shiv Raj's father the pradhan Rampal had got 80 bighas of the informant Gendan Lal's land declared as gram samaj property. Proceedings under Section 107/117 Cr.P.C. were also taking place between Shiv Raj on one side and Gendan and others on the other side. 12. After the exchange of hot words, the deceased Brij Lal, the informant Gendan, Akhtar and Jalim had left the place for their house. When they reached east of the house of Raghunath Bhangi, then Shiv Raj, Satyapal and Maiku, who were hiding behind the house, assaulted Brij Lal and Akhtar. Thereafter they ran away. The informant and others were not holding any weapons. Brijlal had received a Lathi blow. There was also political rivalry between the parties. In his cross-examination this witness had admitted that the accused Shivraj and Bajrangi had received injuries. This witness was thereupon declared hostile and permitted to be cross-examined by the prosecution. 13. The testimony of P.W. 2-Akhtar was that on the fateful day at about 4.30 P.M. he was going to the Bazaar alongwith Gendan Lal and Dataram which was to be held in the grove of Brij Lal. When they arrived near the east of the house of Raghunath then the appellants arrived and started assaulting Brij Lal. He also claimed not to have held any weapon and the appellants who were armed with Lathis assaulted Brij Lal and this witness. After that the appellants ran away. Prior to this occurrence in the market of Brij Lal place there was a quarrel between Bhangi Ishwar Sharan resident of Nadaiya and Bhangi Raghunath, a sweeper from Alampur. He also claimed not to have held any weapon and the appellants who were armed with Lathis assaulted Brij Lal and this witness. After that the appellants ran away. Prior to this occurrence in the market of Brij Lal place there was a quarrel between Bhangi Ishwar Sharan resident of Nadaiya and Bhangi Raghunath, a sweeper from Alampur. Brij Lal had told them not to quarrel in his bazaar as it lowered his reputation. Shivraj and others objected to Brijlal's intervening in the sweeper's quarrel. He had also supported the Lok Dal in the M.L.A. election along with Gendan Lal whereas the appellants were supporting Congress-I. He also claimed not to have seen any injuries on the accused and also not to have carried any weapon. 14. P.W.3-Dataram gave the same evidence as the earlier two witnesses regarding the cause and manner of incident. He also denied to have seen any injury on the persons of Shivraj and Bajrangi. 15. The appellants have denied the prosecution allegations and claim to have been falsely implicated because of enmity. 16. Learned counsel for the appellant has argued that there a cross report from the side of the accused and there was no explanation for the injuries received on the side of the appellants either in the FIR or in the evidence of the witnesses. So far as the appellant Shivraj is concerned, he had as many as 8 injuries out of which 2 were on his head and the rest were on others part of his body. Bajrangi had also sustained 2 injuries. The witnesses Gendan Lal and Dataram have disclaimed even seeing the injuries on the person of the accused or of plying lathis. 17. The author of the fatal injury to the deceased who had died after 9 days due to the fracture of right parietal bone has not been identified. It was submitted that the main enmity was with Shivraj who has died during the pendency of the appeal. There was no adequate motive for this crime which had occurred suddenly when the deceased was trying to scold the sweepers from two villages who were quarrelling on his bazaar land which was said to have been objected to by the appellants and had escalated into the quarrel which had resulted in injuries to both sides. 18. There was no adequate motive for this crime which had occurred suddenly when the deceased was trying to scold the sweepers from two villages who were quarrelling on his bazaar land which was said to have been objected to by the appellants and had escalated into the quarrel which had resulted in injuries to both sides. 18. The role and motive for causing injuries to the deceased could only be imputed to Shivraj. It has also come in evidence that the appellant Satyapal Singh had given the blow to the injured Akhtar which was simple in nature. So far as the appellant Maiku is concerned, no active role was assigned to him. The conviction has not been recorded with the aid of Section 34 I.P.C. and when it could not be determined as to who had caused the fatal injury to the deceased, the conviction of the three appellants under section 302 IPC was unwarranted. 19. Learned A.G.A. on the other hand argued that there was an injured witness who also had substantial injuries some of which were on vital parts and the incident had taken place in broad day light and there was no reason for the false implication of the appellants, hence the order of conviction could not be interfered with. 20. We have given our thoughtful consideration to the contentions of the counsel for the parties and are of the opinion that in this case it is difficult to uphold the conviction to the appellants. 21. The initial report was in the form of an NCR lodged by Gendan Lal under sections 323, 504 and 506 IPC, and was an offshoot of a petty quarrel as the deceased side and the appellants who were hostile to each other due to political rivalries and other disputes had intervened in a quarrel between the sweepers on the land of the deceased. A cross report had also been lodged from the side of the accused by one Bajrangi (Ext. Kha-3) under sections 323, 504 and 506 I.P.C. against the prosecution side which was admitted by PW 6 Constable Yad Ram. We find that so far as the injuries to the accused Shivraj and Bajrangi are concerned, they are not at all explained in the prosecution case. Kha-3) under sections 323, 504 and 506 I.P.C. against the prosecution side which was admitted by PW 6 Constable Yad Ram. We find that so far as the injuries to the accused Shivraj and Bajrangi are concerned, they are not at all explained in the prosecution case. Either the witnesses have denied to have seen the said injuries or they had claimed that no one was armed on the side of the prosecution. However, the injuries were noted by the constable clerk P.W. 6 Yadram who has made an entry of the same in the G.D. vide report no. 23 at 2300 hours on 8.11.1980. and has forwarded Shiv Raj and Bajrangi for medical examination. The injured accused Shivraj Singh and Bajrangi have also been medically examined by PW 4 Dr. R.P. Gulati on 9.11.1980 who admitted that the injuries had taken place at the time of incident as alleged by the prosecution. PW 1 Gendan Lal has admitted the presence of injuries to the accused in his crossexamination, and was therefore declared hostile and cross-examined by the prosecution on this aspect. Therefore the injuries to the side of the accused could not be considered so simple and superficial or so disproportionately less than the injuries on the side of the prosecution that they called for no explanation from the side of the prosecution. It should be kept in mind that initially NCRs under sections 323, 504, 506 IPC were only lodged from both sides. In this state of affairs when there is complete absence of explanation of the injuries of the accused in the prosecution version both at the stage of F.I.R. and at the stage of evidence as the witnesses have specifically claimed to be unarmed and not to have plied any lathi or other weapons on the accused, it cannot be ruled out that either the accused have acted in self defence, or that the genesis of the incident is unclear, both of which circumstances would entitle the accused to a benefit of doubt for the commission of the offence. There is also not such a preponderance of injuries on the side of the prosecution side compared to the injuries received on the accused side for giving rise to the inference that only the accused side were the aggressors. There is also not such a preponderance of injuries on the side of the prosecution side compared to the injuries received on the accused side for giving rise to the inference that only the accused side were the aggressors. The accused in any case are only required to raise a doubt for getting the benefit of the right of private defence on the basis of a mere preponderance of probability and the onus never shifts from the prosecution to establish its case beyond reasonable doubt. The author of the fatal injury, the fracture on the right parietal bone of the deceased Brij Lal who died 9 days after the incidence being unknown, and the accused Shiv Raj with whom there was the principal enmity having died, and the incident having taken place almost 34 years earlier it would be unsafe to uphold the conviction of the appellants on the basis of evidence which suffers from the aforesaid infirmities. In this view of the matter we are of the view that the judgment of conviction recorded by the trial judge cannot be upheld. The prosecution has failed to establish the case against the appellants beyond reasonable doubt. 23. The appeal succeeds and is allowed. The judgment of conviction is set aside. The appellants were on bail. They need not surrender. Their bail bonds and surety bonds are discharged. A copy of this order and the record be forwarded to the trial court for compliance.