JUDGMENT Rakesh Tiwari, J.: - Heard Sri D.I. faridi, learned A.G.A. for the appellant, Sri G.S. Chaturvedi, Senior Counsel assisted by Sri Samit Gopal appearing for the accused respondents and perused the record. 2. In session trial No. 261 of 1980, Baiju Tewari, Kishun Tewari, Vijayee Tewari and Ram Janam Tiwari, were charged and tried for the offence punishable under section 302 read with section 34 IPC and 323/34 IPC. Accused Ram Janam Tiwari was further charged under section 302 IPC, for committing murder of Guddar Chaubey and causing injuries to Duryodhan and Bharat Chaubey on 25.5.1980 at 2 P.M. in village Ori, Police Station Adalhat, district Mirzapur. 3. By the impugned judgment and order dated 7.10.1982, the Trial Court has acquitted accused Ram Janam Tewari and Baiju Tewari of the charge punishable under section 302 and 302/34 IPC whereas accused Vijayee Tewari and Kishun Tewari have been convicted under section 323/34 IPC and sentenced to undergo six months' RI thereunder. 4. Aggrieved by the acquittal of the accused respondents under section 302 and 302/34 IPC, the State of U.P. has filed Government Appeal No. 387 of 1983 while accused Vijayee Tewari and Kishun Tewari have filed criminal appeal No. 2722 of 1982 challenging their conviction and sentence under section 323/34 IPC. 5. Since accused respondent No. 1 and 4 namely Baiju Tewari and Kishun Tewari are reported to have died in the meantime, the appeal stands abated as against them by order of the Court dated 17.2.2014 and the appeal of surviving accused persons is being heard. 6. As both the appeals arise out of the same judgment and are entwined by same set of facts, they have been heard and are being disposed of together. 7. Briefly stated the prosecution case is that on 25.5.1980, at about 2 P.M. when Duryodhan, younger brother of complainant Bharat Chaubey, was looking after the mango grove, accused Vijayee Tewari and Kishun Tewari, armed with lathi and danda came there and started to pluck mangoes. On raising objections, they began to beat Duryodhan with fists, kicks and danda. On receiving information about the incident, complainant Bharat Chaubey and his brother Guddar, rushed to save Duryodhan. In the meantime, accused Baiju Tewari armed with Gandasa and accused Ram Janam Tewari armed with ballam, also arrived in the said mango grove and enquired from Duryodhan about the matter. On receiving information about the incident, complainant Bharat Chaubey and his brother Guddar, rushed to save Duryodhan. In the meantime, accused Baiju Tewari armed with Gandasa and accused Ram Janam Tewari armed with ballam, also arrived in the said mango grove and enquired from Duryodhan about the matter. Nand Lal, Moti, Dhani and many others also are said to have arrived at the mango grove and asked Baiju Tiwari to refrain from such activity. On this, accused Baiju Tiwari exhorted to beat them, whereupon accused Vijayee Tewari and Kishun Tewari began to beat Duryodhan with lathis. When Guddar rushed to save Duryodhan, he was struck by ballam in the stomach by accused Ram Janam Tewari whereas accused Baiju Tewari gave a blow of gandasa to the complainant Bharat Chaubey who saved himself but received injury on the thumb of his right hand by wooden handle (lathi) of gandasa. On the intervention of the witnesses and other persons, the accused respondents ran away from the spot. Guddar died on the spot as a result of the ballam injury. 8. Complainant Bharat Chaubey got a report of the incident scribed by Nand Lal Chaubey and submitted it at police station Adalhat. On its basis check report was prepared and case crime No. 85 of 1980, under section 302/323, was registered against the accused respondents on 25.5.1980 at 6.10 P.M. Investigation of the case was taken over by Sri R.N. Pandey, S.H.O., Police station Adalhat. The investigating Officer prepared inquest report of deceased Guddar. His body was sealed and sent for post-mortem examination through constables Dal Singar Yadav and Ram Nath. He also prepared site plan of the place of the occurrence and recovery memo of Ballam and lathi as well as blood stained and simple earth from the place of occurrence. 9. Injured persons, Bharat Chaubey and Duryodhan were subject of medical examination conducted by Dr. C.K. Gupta, on 11.45 A.M. and 12 O'clock in the noon respectively on 26.5.1980 and the following injuries were found on their person : Injuries of Bharat Chaubey 1. Abraded contusion with swelling on the left thumb -- dorsal aspect 6 cm. x 6 cm. 2. Contusion bluish in colour 4 cm. x 2 cm. on the right scapular region. Injuries of Duryodhan 1. Lacerated wound 4 cm. x 0.5 cm. x 0.5 cm. on the right side forehead 6 cm. above the right eye brow. Abraded contusion with swelling on the left thumb -- dorsal aspect 6 cm. x 6 cm. 2. Contusion bluish in colour 4 cm. x 2 cm. on the right scapular region. Injuries of Duryodhan 1. Lacerated wound 4 cm. x 0.5 cm. x 0.5 cm. on the right side forehead 6 cm. above the right eye brow. 2. Complained of pain all over body. But no mark of external injury seen. 10. Post-mortem examination was conducted by Dr. C.K. Gupta on 26.5.1980 on the body of deceased Guddar, who found the deceased to be aged about 30 years having average muscularity. Rigor mortis was present in lower limb and passed off in upper limb, eyes and mouth were open. The following ante mortem injuries were found on the body of deceased Guddar: 1. Incised wound 1. cm. x 0.5 cm. x muscle deep on the left arm upper part. 2. Lacerated wound 4 cm. x 1.5 cm. x 1 cm. on the left side face, 2 cm. below the left ear. 3. Incised wound of entry 3 cm. x 2 cm. x cavity deep directed back ward and outward, margins were clean cut and inverted, on the front of abdomen (infra sternal region) in the middle. 4. Incised wound of exit 2 cm. x 1 cm. x cavity deep (connecting with injury No. 3 on probe) on 14 cm. back right side 10 cm. above the right waist. 11. In the opinion of the doctor, death was due to shock and haemorrhage as a result of ante mortem injuries. 12. After completion of investigation, charge sheet was submitted against the accused respondents and the case was committed to the Court of Session. They pleaded not guilty to the charges levelled against them and claimed to be tried. 13. In order to prove its case, the prosecution examined P.W. 1- Nand Lal, P.W. 2 -Bharat Chaubey, P.W. 3- Moti, P.W.4- Duryodhan, P.W.5-Dr. C.K. Gupta, P.W.6- constable Dal Singar Yadav, P.W.7- Somaru, P.W.8-SI Shiv Das Yadav, P.W.9- Head constable Surya Nath Singh, P.W.10 Net Ram, P.W. 11- IO R.N. Pandey. Whereas the accused respondent in their defence examined D.W.1- Rajendra Prasad Vaishya and D.W.2- Dr. Janardan Narain Prasad. 14. C.K. Gupta, P.W.6- constable Dal Singar Yadav, P.W.7- Somaru, P.W.8-SI Shiv Das Yadav, P.W.9- Head constable Surya Nath Singh, P.W.10 Net Ram, P.W. 11- IO R.N. Pandey. Whereas the accused respondent in their defence examined D.W.1- Rajendra Prasad Vaishya and D.W.2- Dr. Janardan Narain Prasad. 14. After considering the evidence produced in the case and hearing respective submissions of the parties, the Trial Court acquitted all accused respondents of the charge under section 302 and 302/34 IPC but convicted and sentenced accused Vijayee Tewari and Kishun Tewari under section 323/34 IPC as stated above. 15. The present appeal has been filed by the State of U.P. on the ground that alibi of Ram Janam Tewari has wrongly been believed by the Trial Court when it had accepted the prosecution evidence with regard to the happening of the events, on the basis of which the two accused namely Vijayee Tewari and Kishun Tewari have been convicted under section 323/34 IPC; that learned Trial Court has not weighed and assessed the prosecution evidence properly and in any case verdict of acquittal is contrary to the weight of evidence on record. It is submitted that on the aforesaid grounds, facts and circumstances of the case as well as the material on record, the impugned judgment and order passed by the Trial Court is not justified. 16. Learned A.G.A. appearing for the appellant submits that F.I.R. is prompt, there is no contradiction in the prosecution story and small contradictions, if any, are irrelevant and insignificant for the purpose of conviction of the accused persons. The Ballam used in the incident was recovered which was sent for chemical examination to F.S.L. and its report shows that it contained blood but the same has not been classified as to whether it is human blood or otherwise. The prosecution in support of its case has produced P.W. 2 Bharat Chaubey and P.W. 4 Duryodhan, who are injured witnesses. It is argued by the A.G.A. that accused were the aggressors in the case who have caused death of Guddar and have also injured others as stated in the F.I.R. with their respective weapons used by them. According to him, it is not a case of no evidence as both the sides have received injuries in the incident of marpeet which took place in two stages. According to him, it is not a case of no evidence as both the sides have received injuries in the incident of marpeet which took place in two stages. He argues that prosecution version is supported by the medical evidence on record, therefore, the Trial Court has committed an illegality in not properly appreciating the medical evidence as well as depositions of the witnesses which has resulted in miscarriage of justice. 17. Per contra, Sri G.S. Chaturvedi, learned Senior Counsel has submitted that it is clear from perusal of the impugned judgment that accused Baijoo Tewari, Kishun Tewari, Vijayee Tewari and Ram Janam, have been acquitted of the charge under section 302/34 IPC and accused Baijoo Tewari and Ram Janam have also been acquitted of the charge under section 323/34 IPC whereas accused Kishun Tewari and Vijayee Tewari have been convicted and sentenced to six months' RI under section 323/34 IPC on well considered grounds. Accused Baijoo Tewari armed with a gandasa, Vijayee Tewari with lathi, Ram Janam Tewari with ballam and Kishun Tewari with lathi, are said to have participated in the incident with their respective weapons. The incident is said to have taken place on 25.5.1980 at 2 P.M. in a mango grove; that F.I.R. was lodged at 6.10 P.M. on the same day at police station Adalhat by Bharat Chaubey; that in the said incident Guddar Chaubey received injuries and died. His post mortem examination was conducted on 26.5.1980 at 4 P.M. by doctor C.K. Gupta (P.W.5). From the facts and evidence on record, it appears that injuries particularly injury No. 1 and 2 of the deceased are unexplained whereas specific case of the prosecution is that one ballam blow was given to the deceased by Ram Janam Tewari, as a result of which he died. The prosecution has totally failed to explain injury No. 1 and 2 found on the body of the deceased as to how they were received as cause of death of Guddar (deceased) was the result of single blow of Ballam. It is reasonably deduced from the record of the case that in the present case two incidents had taken place. As per the prosecution version itself as specifically stated by P.W.-4 Duryodhan that the first incident had taken place 30 minutes before the second incident. It is reasonably deduced from the record of the case that in the present case two incidents had taken place. As per the prosecution version itself as specifically stated by P.W.-4 Duryodhan that the first incident had taken place 30 minutes before the second incident. The first incident which took place at around 2 P.M. related to plucking of mangos from the grove of Bharat Chaubey by Vijayee Tewari and Kishun Tewari and as per prosecution case, Duryodhan was beaten in the first incident by Vijayee Tewari and Kishun Tewari and the quarrel had ended there. The second incident is then stated to have taken place 30 minutes after the first incident wherein it has been specifically stated by P.W. 4 Duryodhan that Bharat Chaubey, Guddar, Ram Dhani and Moti ran with their lathies towards the said mango grove. On seeing this Baijoo Tewari and Ram Janam Tewari then reached the place of occurrence with gandasa and ballam respectively. The specific case of the prosecution is that when Guddar tried to assault Ram Janam Tewari with his lathi for which he had raised his lathi, then Ram Janam Tewari gave one ballam blow to him which pierced in his abdomen. Ram Janam Tewari while exercising his private defence gave one ballam blow to Guddar which resulted in his death. Even as per the prosecution case the accused persons of the present case have also received injuries. 18. Learned Senior Counsel Sri G.S. Chaturvedi has argued that from the perusal of statement of P.W.4 Duryodhan, it is apparent that duration between the first incident and second incident was of more than half an hour. The second incident had started after lapse of the aforesaid time when first incident had already subsided. 18. Learned Senior Counsel Sri G.S. Chaturvedi has argued that from the perusal of statement of P.W.4 Duryodhan, it is apparent that duration between the first incident and second incident was of more than half an hour. The second incident had started after lapse of the aforesaid time when first incident had already subsided. In this regard, he has placed reliance upon following excerpt of the deposition of P.W. 4 in which he has given the manner in which two incidents took place : ^^igys >xM+s ds vk/ks ?kaVs ckn nwljk >xM+k gqvk FkkA igys >xM+s esa fctbZ us esjs Åij ykBh pyk;k Fkk tks esjs lj ij yxh FkhA eSa fpYyk;k FkkA eSus ewls o pjokgksa ls xkao ij [kcj nsus dks ugha dgkA ewls [kcj nsus ugha x;kA yM+ds yksx x;s FksA mu yM+dksa dk uke ugha tkurkA ;g ckr ugha gS fd eSa Lo;a [kcj nsus x;kA ckx ls iwjc vksM+h xkao Ms<+ QykZx ij gSA ogka ls esjs ?kj vkokt ugha lqukbZ iM+sxhA vksM+h dh vkSj ls 4&5 vkneh ykBh ysdj vk;sA os yksx nkSM+rs vk jgs FksA esjs gkFk esa Hkh ykBh FkhA igys tks eq>s pksV yxh Fkh og dqavk ls 50 dne if'pe yxh FkhA igyh ckj eq>s Hkjr pkS/kjh ds ckx esa pksV yxh FkhAml le; ugj esa ikuh ugha FkkA nwljh ckj ekjihV ugj ls 8 dne dh nwjh ij gqbZ FkhA esjh rjQ ls igys Hkjr us oStw ds Åij ykBh pyk;k FkkA ,d nks ykBh pyk;k FkkA eSa ugha crk ldrk fd uUnyky fdlds mij ykBh pyk jgs FksA eSa ugha crk ldrk fd jketue ds mij fdlh us ykBh pyk;k ;k ughaA jketue us cYye pyk;k rc Hkjr ykBh ugha pyk jgk FkkA uUnyky ml le; cxy esa [kM+s FksA cYye yxus ds igys ykBh ugha pyh FkhA igys xqn~nj dks pksV yxh rc Hkjr dksA tgka pksV yxh ogha xqnn~j fxj x;kA fxjus ds ckn xqnn~j us cYye [khapkA xqn~nj dh ykBh NVd dj fxj xbZA eSa ugha crk ldrk fd og ykBh D;k gqbZA ekjihV 'kq: gqbZ rc ewls ogka FkkA og esjs xkao dk jgus okyk gSA ;g xyr gS fd ewls us mls ugha igpkuk blfy;s ugha is'kdj jgk gwWaA f'kuk[r ds le; gh ekywe gks x;k fd ewls fey x;k gSaA dksbZ nj[okLr ugha fn;kA vkt ewls ugha vk;k gSA^^ 19. He then submits that motive can be gathered from the cross examination of P.W. 3 Moti as well as the manner in which the incident had taken place and who had assaulted whom. In this regard he has relied upon following part of the cross examination of P.W.3-Moti : ^^esjh [ksrh ekStk ?kljkSM+h esa ugha gSA igpku djrs le; jketue dk uke ugha ;k vk;k FkkA eSaus eftLVªsV ls dgk Fkk fd budk uke ugha tkurkA eq>ls fdlh us ugha iwNk vkSj u eSaus dgk fd budk uke Hkwy x;k gwWaA eSaus eftLVªsV ls c;ku fn;k Fkk fd cYye ysdj nkSM+rs o ekjrs ns[kk FkkA eSaus ekjus okyh ckr crk;k Fkk ;fn ugha fy[kk gS rks dksbZ otg ugha crk ldrkA xqn~nj dks cYye yxk rks eSa 4&6 ijx Hkkx x;kA eSa osj Mwcus rd ogka jgkA Hkjr 3 cts fnu esa ckx ls pys x;sA mlds ckn Hkjr ogka dc ykSVs eSa ugha crk ldrkA ckx ds ekfyd Hkjr pkS/kjh ogka esjs lkeus ugha vk;s FksA esjk c;ku njksxk us fy;k FkkA muls eSus c;ku fn;k Fkk fd cStw us xaM+klk pyk;k tks Hkjr dks yxkA ;fn esjs c;ku esa ugha fy[kk gS rks dksbZ dkj.k ugha crk ldrkA eSus njksxk ls ;g ugha c;ku fn;k Fkk fd eqyfteksa dks Hkh pksVsa vkbZ gSaA ;fn fy[kk gS rks dksbZ dkj.k ugha crk ldrk dsoy Hkjr us ykBh pyk;k FkkA ge yksx ykBh ikap gkFk dh FkhA nq;ksZ/ku us ykBh ugha pyk;k D;ksafd nks vkneh mls ekj jgs FksA nq;ksZ/ku dh ykBh fotbZ o fd'kquk us ogha Qsad fn;k FkkA xqn~nj ds ikl ykBh FkhA og ykBh rkus Fkk rc rd mls cYye yx x;kA og jketue ds mij ykBh rkus FkkA^^ 20. It is submitted that from the aforesaid cross examination it is clear that prosecution side had arrived after some time which is also supported by the version given in the F.I.R. but this story has been substantially changed by the prosecution as appears from the following statement of P.W. 2 Bharat Chaubey : ^^?kVuk 17 ekg igys gqbZA nks] <+kbZ cts fnu dk le; FkkA ml le; eSa unh ds fdukjs ihiy ds isM+ ds uhps FkkA ogka ij xqn~nj uUnyky] /kuh] eksrh Hkh FksA /kuh dks jke/kuh Hkh dgrs gSaA ckx dh rjQ ls yM+ds nkSM+dj vk;s o crk;k fd ikl jkSM+h ds yksx vke rksM+ jgs gS o nq;ksZ/ku dks ekj jgs gSaA bl ij eSa uUnyky] xqn~nj eksrh o jke/kuh ykBh MaMk ysdj nkSM+dj x;s ns[kk fd nq;ksZ/ku dks fd'kqu o fctbZ ekj jgs FksA ?kkljkSM+h dh rjQ ls jketue o cStw vk;sA cStw xaM+klk rFkk jke tue cYye fy;s FksA eSaus dgka fd cStw pkpk ,slk ugha gksuk pkfg;s vke Hkh rksM+rs gks vkSj ekjrs Hkh gksaA rc cStw us yydkjk fd ekjks lkyksa dksA jke tue us cYye ls xqn~nj ds isV esa ekjkA cStw us xaM+klk pyk;k ysfdu Qy u yxdj ykBh esjs cka;s gkFk ds vaxwBs esa yxhA jketue cYye dh [khaprku dj jgs Fks fd ykBh VwV xbZ xwn~nj us cYye vius gkFk ls fudkykA cYye yxus ij xqn~nj cka;s rjQ fxj x;kA xqn~nj 2 feuV ds ckn ej x;kA ge yksxksa ds igqapus ij Hkh fd'kqu o fctbZ us nq;ksZ/ku dks ykBh ls ekjkA ge yksxksa us Hkh pksV yxus ds ckn ykBh pyk;kA eqyfteku dks pksV vkbZ ysfdu fdldks vkbZ ugha crk ldrkAjketue i<+s fy[ks gSaA ,e0,0 ikl gSa eSa ugha tkurkA og cukjl i<+rk FkkA bu pkj eqyfteku ds vykok buds ?kj vkSj dksbZ ugha gSA jketue dks dksbZ pksV ugha vkbZ FkhA esjh ykBh ls fdldks pksV vkbZ Fkh ugha crk ldrkA eSus cStw ds mij ykBh pyk;k FkkA eSus 2 ykBh pyk;k FkkA cStw ds 'kjhj ij [kwu ugha ns[kkA xaM+klk yxus ij esa fxjk ugha Fkk ml le; esjh ykBh uhps FkhA eSa ekjus dh dksf'k'k dj jgk Fkk fd pksV yx xbZA tSls gh eq>s xaM+klk yxk os yksx Hkkx x;sA esjk eqag muds xaM+klk pykus ds igys if'pe FkkA esjs vykok esjh rjQ ls fdlus ykBh pyk;k eSus ugha ns[kkA nq;ksZ/ku ds gkFk ykBh ugha FkhA nq;ksZ/ku j[kokyh djus ykBh ysdj x;k Fkk ;k ugha ;g eSus ugha ns[kkA uUnyky us ykBh pyk;k FkkA fdl ij pyk;k ;g ugha ns[kkA jke/kuh us ykBh ugha pyk;k FkkA eSus fd'kquk ds lj ij pksV yxrs ugha ns[kkA eSa tc igqapk rc fd'kqu o fctbZ nq;ksZ/ku dks ekj jgs FksA^^ 21. According to the learned Senior Counsel for the accused, from perusal of the aforesaid, it is clear that parties had received injuries in the process of assault and that the prosecution side was the aggressor. He argues that Guddar had raised his lathi to strike on the head of Ram Janam Tewari, who apprehended imminent danger to his life and body and in self defence, he struck Ballam in the stomach of Guddar who died. This is clear from the following statement of P.W.2 Bharat Chaubey : ^^tc xqn~nj ds mij cYye pyk rc og viuh ykBh ihNs rkus gqvk FkkA cYye yxrs gh ykBh fNVd dj fxj xbZA Hkkxh Hkxk gks xbZA eq>s dsoy ,d pksV yxh FkhA xqn~nj dks cYye dh ,d pksV yxh FkhA xqn~nj dks cYye dh ,d pksV yxh FkhA nq;ksZ/ku dks dbZ ykBh yxh FkhA ge yksxksa ds iagqpus ij 5&7 feuV esa ekjihV [kre gks xbZA eSa tc igaqpk rc nq;ksZ/ku dks pksV yx pqdh FkhA^^ 22. Eye witness Mussey and other children who were said to be present on the place of occurrence, were not produced before the Court by the prosecution. Eye witness Mussey and other children who were said to be present on the place of occurrence, were not produced before the Court by the prosecution. This is also apparent from the statement of P.W. 4 Duryodhan and is supported by P.W.1 Nand Lal, which read thus : ^^eSaus o esjs HkkbZ Hkjr us feydj Hkjr pkS/kjh ls vke dk ckx fy;k FkkA eSa mldh j[kokyh djrk FkkA vkt ls 18&19 ekg gq;sA 2 ;k <+kbZ cts fnu dk le; FkkA eSa ckx esa j[kokyh dj jgk FkkA fotbZ o fd'kquk eqyfteku vkdj vke rksM+us yxsA eSus euk fd;kA ;g yksx eq>s ykBh MaMk] ykr eqDds ls ekjus yxsA tc ;g yksx vke rksM+ jgs Fks rc ewls us ns[kk FkkA og iRuh cVksj jgk FkkA FkksM+h nsj esa esjs ?kj ds 5&6 vkneh ykBh ysdj vk;sA eSus gYyk fd;k Fkk ?kljkSM+h dh rjQ ls jketue o cStw frokjh vk;sA cStw ds gkFk esa xaM+klk Fkk o jketue cYye fy;s FksA ml le; fd'kquk o fctbZ eq>s ekj jgs FksA Hkjr us dgk fd vke Hkh rksM+k o ekjk Hkh ;g vU;k; u gksuk pkfg,A cStw us yydkjk fd lcdks ekjksA jketue us xqn~nj dks cYye ekjkA cStw us xaM+kls ls Hkjr dks ekjkA xaM+kls dh ykBh mls yxhA Hkjr o uUnw us ykBh pyk;k FkkA ekjihV ds ckn eqyfteku Hkkx x;sA xwnM+ cYye fudky jgs FksA cYye fudkyrs gh xwnM+ ej x;kA xwnM+ cka;s rjQ fxjk FkkA Hkjr us iwaNk fd >xM+k dSlk gqvk rks eSaus mudks lc gky crk;kAge ikapksa vkneh ykBh ysdj lkFk gh nkSM+s FksA eSa ml vke ds isM+ ds iwjc 100 xt ij Fkk fd fctbZ o fd'kquk Hkkxs FksA ge yksxksa us dgk fd dgka Hkkxs tk jgs gksA fot;h o fd'kquk vius ?kj dh rjQ Hkkx jgs FksA os yksx ugj ds iwjc 20&25 dne jg x;s FksA cStw o jke tue ml le; ugj ds if'pe ls vk jgs FksA eSa vke ds isM+ ds uhps ugha igqapk FkkA eSaus ml isM+ dks ugha ns[kk ftldk vke rksM+k tk jgk FkkA ogka ij dksbZ vke dk Qy rksM+ dj j[kk tk jgk FkkA ogka ij dksbZ vke dk Qy rksM+ dj j[kk ugha Fkk u vke fxjk gh FkkA ;g ugha ekywe gqvk fd fdl isM+ dk vke rksM+k x;kA ogka ij dbZ vknfe;ksa ds ckx gSaA unh ds iwjc lVs Hkjr dk ckx gSA ,d nwljs ckx esa ckck th dk dqavk gSA eSa dqa, ls if'pe 10&15 dne Fkk tc fotbZ o fd'kquk dks Hkkxrs ns[kk FkkA dqa;s ls if'pe 40&50 dne ij nq;ksZ/ku FksA xqn~nj o Hkjr ds dgrs gh cStw us yydkjk FkkA xqn~nj us ykBh ugha pykbZ FkhA xqn~nj ds mij tc cYye pyk rc mlds gkFk esa ykBh FkhA tc cYye pyk rc xqn~nj dsoy ykBh fy;s FkkA pyk;k ughaA cYye yxus ds ckn xqn~nj dh rjQ fdlh dks pksV ugha yxhA xqn~nj ds mij dsoy ,d ckj gqvk Fkk vkSj og cYye dk okj FkkA mlds mij ykBh ;k xaM+klk ugha pyk FkkA xqn~nj dk eqag if'pe Fkk tc mlds mij cYye pykA ekjus okys dk eqag iwjc rjQ FkkA xqn~nj ds igys Hkjr dks pksV yxhA xqn~nj ls Hkjr iwjc rjQ 10&15 dne ij Fkk tc mls pksV yxhA tc xqn~nj dks pksV yxh rc fd'kquk o fot;h mlls iwjc 20&25 dne ij Fks o nq;ksZ/ku ls yM+ jgs FksA nq;ksZ/ku ds ikl ykBh] ewdk ykr ls ekj jgs FksA nq;ksZ/ku ds ikl ykBh ugha FkhA og [kkyh gkFk FkkA Hkjr flag ds ckx esa gh nq;ksZ/ku dks ekjk FkkA xqn~nj ds fxjus ds ,d nks feuV ckn rd os yksx nq;ksZ/ku dks ekjrs jgsA fQj ge yksx nkSM+s rc Hkkx x;sA^^ 23. It is also apparent from the statement of P.W. 1 Nand Lal that he was not available after the incident till his statement was taken after about 12 days by the I.O. 24. Learned Counsel for the accused respondents then relied upon the decisions rendered in Krishnnan v. State of Tamil Nadu,. 2006 (56) ACC 540 (SC) = 2006 (45) AIC 37. Deo Narain v. State of U.P., 1973 (10) ACC 348 (SC). and State of U.P. v. Ram Niranjan Singh,. 1972 (3) SCC 66 in regard to the plea of private defence. 25. No other point has been argued by the parties' Counsel 26. Upon hearing learned Counsel for the parties and on perusal of record, we find that Trial Court has rightly come to the conclusion that the incident had taken after interval of more than half an hour of the first incident. Initially, accused Ram Janam Tewari was not there at the place of incident and it is upon information that some marpeet had taken place in the mango grove, that persons from both the sides arrived who belonged to different villages as appears from the site plan. The mango grove is situated almost at a mid distance from the two villages. It also appears from the evidence and the site plan that the first incident had taken place at mango grove whereas the second incident took place when the accused were returning to their village towards Ghuspaithi at a distance of about 90 steps from the place where the first incident had taken place. There were no finger prints found on the handle of stick of ballam and it appears from the statements extracted above that Guddar (since deceased) had raised his lathi for giving a blow on the head of Ram Janam Tewari who on apprehending danger to his life, had immediately struck a blow by ballam in the stomach of Guddar who died. The injuries have been found on both sides as is evident from the medical and ocular version of the witnesses. 27. The fact that injuries are received by both sides, is also admitted to the prosecution. Therefore, the question would be as to whether the second incident could be said to be a part or continuation of the first incident or a separate incident? 27. The fact that injuries are received by both sides, is also admitted to the prosecution. Therefore, the question would be as to whether the second incident could be said to be a part or continuation of the first incident or a separate incident? Admittedly, from the record it is apparent that second incident had taken place after about half an hour when the first incident had subsided and the accused party was returning towards their village and were about 90 steps from the mango grove where the first incident had earlier taken plate. It is then that second incident had taken place. Therefore, both the incidents are separate and not part of the same transaction. The Trial Court has in the facts and circumstances rightly found that the accused persons had acted in self defence at the time of second incident in which Guddar died. From the appreciation of record and arguments advanced, the conclusion of the Court is a probable one. Accordingly we too conform to the same view and uphold the judgment of the Trial Court which in our opinion does not suffer from any illegality or infirmity and therefore requires no interference. 28. For all the reasons stated above, both the appeals fail and are accordingly dismissed. Appeals Dismissed.