JUDGMENT Hon’ble Om Prakash-VII, J.—This criminal appeal has been preferred by the appellants Baleshar, Sheo Nath, Garib (since died), Gharbharan (since died), Bachha alias Om Prakash and Lal Chand (since died) against the judgment and order dated 27.1.1983 passed by III Additional District & Sessions Judge, Deoria in Sessions Trial No. 254 of 1982, State v. Baleshar and others, relating to case crime No. 35 of 1980 whereby all the aforesaid accused-appellants have been convicted and sentenced for the offence under Section 302 read with 149 IPC to undergo imprisonment for life, for the offence under Section 323 read with 149 IPC to undergo six months rigorous imprisonment and for the offence under Section 147 IPC to undergo rigorous imprisonment for 1 year. 2. Appellant No. 3 Garib, appellant No. 4 Gharbharan and appellant No. 6 Lal Chand died during pendency of the appeal. Therefore, appeal filed on their behalf has been abated vide order dated 21.5.2015 of this Court. Thus, the appeal filed on behalf of the appellant No. 1 Baleshar, appellant No. 2 Sheo Nath and appellant No. 5 Bachha alias Om Prakash is before the Court for consideration. 3. Prosecution story, in nutshell, as unfolded in the written report (Ex.Ka.-1), is that on 24.3.1980, informant Roshan Harijan (P.W.1) resident of village Barhya Hardo, P.S. Lar, District Deoria submitted a written report Ex.Ka.-1, scribed by Tengari Prasad Yadav, before the Police Station Lar, District Deoria mentioning that in the evening of 24.3.1980 at about 7:30 p.m., informant and his father Vishambhar Harijan, who was also the Pradhan of the village, were returning home from the Lar Road Market. As and when they reached near the village, they saw that Garib Harijan, Baleshar Harijan, Gharbharan Harijan, Bachha, Lal Chand and Sheo Nath, all residents of the same village, were forcibly occupying the abadi land by fixing nad and khoota on it. Informant’s father Vishambhar asked them why were they occupying the abadi land in the night. Upon this, accused Garib exhorted his companions to kill the Pradhan to remove the hurdle as he creates problem again and again. On hearing this, all accused persons equipped with lathi and danda started assaulting the Pradhan. When informant and his brother Ghurbari tried to save his father, then accused persons also started assaulting them. Upon this, accused Garib exhorted his companions to kill the Pradhan to remove the hurdle as he creates problem again and again. On hearing this, all accused persons equipped with lathi and danda started assaulting the Pradhan. When informant and his brother Ghurbari tried to save his father, then accused persons also started assaulting them. Hearing the hue and cry, Siree Harijan, Gulab Harijan and many other people came there and intervened in the matter, whereupon the accused persons fled away from the place of occurrence. Informant, his brother Ghurbari and father Vishambhar had received several injuries. There was no hope for survival of Vishambahar. Informant alongwith all the injured went to the police station to lodge the complaint. 4. On the basis of written report (Ex.Ka.-1), chick F.I.R. Ex.Ka.-7 was registered on 24.3.1980 at 21:45 hours at Sr. No. 34 at the Police Station Lar by Moharrir Hridyanand Pandey (P.W.8). Entry was also made in the G.D., the carbon copy of which is Ex.Ka.-8. Investigation was entrusted to Ahmad Khan, A.S.I. Initially, the case was registered for the offence under Sections 147, 323, 308 IPC. All the injured were sent to the hospital for treatment. 5. Vishambhar was medically examined on 24.3.1980 at 11:30 P.M by P.W.5 Dr. M.S. Alam, Medical Officer, T.B. Clinic, Deoria. He was brought by head constable Shiv Kumar Tiwari. The following injuries were found on his person : (i) Contused swelling 7 cm. x 6.5 cm. on left side forehead covering both upper and lower lid of left eye. (ii) Lacerated wound 7 cm. x 1.5 cm. x bone deep left side head 8 cm. Above left ear and just posterior to injury No. (i). Injuries were kept under observation. In the opinion of the doctor, injuries were caused by blunt object. X-ray was advised. Injured was in deep coma. Injury report of Vishabhar is Ex.Ka.-2. 6. On the same day at about 11:50 p.m., Ghurbhari was also medically examined by the same doctor as medico legal case. He was brought by head constable Shiv Kumar of Police Station Lar and following injuries were found on his person : (i) Lacerated wound 4 cm. x 0.5 cm. x scalp deep left side head 10 cm. above left ear. (ii) Lacerated wound 3 cm. x 0.5 cm. x scalp deep left side head 3 cm. Posterior to injury No. (i). (iii) Abraded contusion 6 cm. x 0.5 cm. x scalp deep left side head 10 cm. above left ear. (ii) Lacerated wound 3 cm. x 0.5 cm. x scalp deep left side head 3 cm. Posterior to injury No. (i). (iii) Abraded contusion 6 cm. x 3.5 cm. on the left elbow outer aspect. (iv) Lacerated wound 4 cm. x 0.4 cm. x skin deep left thumb palmer aspect middle of thumb. (v) Contused swelling 4 cm. x 2.5 cm. on the right hand dorsum just above the root of right little finger. (vi) Multiple abrasions in an area of 15 cm. x 4.5 cm. on the right forearm lower half up to right wrist dorsum. (vii) Abrasion 3.5 cm. x 2 cm. on the right elbow back. (viii) Contusion 7 cm. x 1 cm. on the right thigh upper part outer aspect. (ix) Abraded contusion 5 cm. x 2 cm. on left shoulder back. Injuries No. 5 and 6 were kept under observation. Rest of the injuries were simple in nature and caused by any blunt object. Duration of the injuries was fresh. X-ray of right forearm was advised. Injury report relating to injured Ghurbhari is Ex.Ka.-3. 7. Injured Roshan Prasad, the informant of the case, was medically examined by Dr. R.B. Gupta (P.W.7) on 24.3.1980 at 11:20 p.m. as a medico legal case. He was brought by Constable 696 Ram Succhit Yadav of P.S. Lar. The following injuries were found on the person of injured Roshan Prasad : (i) Lacerated wound of scalp 2¾ ‘’ x ½’’ x ¼’’ (skin deep) on the right parietal region, edges were irregular, blood was oozing. It was 2'’ above the root of nose on the upper side of eyebrow. (ii) Lacerated wound of scalp 1½’’ x ½’’ x ¼’’ (skin deep) on the right parietal region, edges were irregular, oozing of blood was found present. It was 1'’ above the injury No. 1. (iii) Abrasion ½’’ x ½’’ on the outer surface and upper part of right forearm 2'’ below the right elbow joint. (iv) Contusion 1½’’ x ½’’ on the outer surface and middle part of right forearm. It was 3'’ below the injury No. (iii). (v) Contusion with swelling 1¼’’ x ¾’’ on the dorsum surface of right hand 1'’ below the back of right wrist joint. (vi) Abrasion ¼’’ x ¼’’ on the dorsum surface of right middle finger of hand. (iv) Contusion 1½’’ x ½’’ on the outer surface and middle part of right forearm. It was 3'’ below the injury No. (iii). (v) Contusion with swelling 1¼’’ x ¾’’ on the dorsum surface of right hand 1'’ below the back of right wrist joint. (vi) Abrasion ¼’’ x ¼’’ on the dorsum surface of right middle finger of hand. It was 2½’’ below the injury No. (v). In the opinion of the doctor, all the injuries were simple in nature and were caused by blunt object and friction. Duration of the injuries was fresh. Injury report of injured Roshan Prasad is Ex.Ka-6. 8. Injury reports were prepared on the back side of the majroobi chhitti sent to the Medical Officer. 9. E.M.O. on duty of the hospital concerned sent information vide Ex.Ka.-5 to the Police Station Kotwali, Deoria to the effect that Vishambhar was admitted as a medico legal case on 24.3.1980 at 11:30 p.m. in deep coma state, but he expired on 25.3.1980 at 00:40 hours. 10. Information was also entered into the G.D. (Ex.Ka.-22). Concerned police proceeded to the hospital and keeping the dead body of the deceased Vishambhar in a sealed cover prepared the sample seal Ex.Ka.19 and also the inquest report Ex.Ka.-15, Police Papers, letters to Medical Officer, District Hospital, Deoria (Ex.Ka.-16 and Ka.-17), Form No. 13 (Ex.Ka.-18), photo lash (Ex.Ka.-20), Form No. 13 (Ex.Ka.-21). 11. Dead body was sent to the mortuary after fulfilling the necessary formalities. 12. Post-mortem on the dead body of the deceased Vishambhar was conducted on 26.3.1980 at 2:00 p.m. by Dr. K.P. Verma (P.W.6), Medical Officer, T.B. Clinic, Deoria. The dead body of the deceased was brought by the Constable 753 Mani Ram Yadav of Police Station Kotwali, District Deoria. Deceased was aged about 60 years. Time of death was about 12:40 a.m. on 25.3.1980 at District Hospital, Deoria. Deceased was an old man of average built. Both the eyes and mouth of the deceased were closed. Rigor mortis had passed off from the upper limbs, but was present in lower limbs. Dried blood was found present in the nostril and ear. 13. Following ante-mortem injuries were found on the body of the deceased Vishambhar : (i) Contusion 7 cm. x 5 cm. on left side forehead extending upto left upper eye. (ii) Lacerated wound 7 cm. x 1.5 cm. Dried blood was found present in the nostril and ear. 13. Following ante-mortem injuries were found on the body of the deceased Vishambhar : (i) Contusion 7 cm. x 5 cm. on left side forehead extending upto left upper eye. (ii) Lacerated wound 7 cm. x 1.5 cm. (stitched) x bone deep left side on head 8 cm. above the left ear. Blood was present. In the opinion of doctor, cause of death was due to coma as a result of head injuries. The clothes taken from the body of the deceased were also sent through the constable to the concerned police station by the concerned doctor. Post-mortem report Ex.Ka.-4 was also prepared. 14. Investigating officer visited the place of occurrence and after inspection, prepared the site plan Ex.Ka.-10. He also recorded the statements of the witnesses after converting the case into the offence under Section 304 IPC. He also copied the police papers, injury report and the post-mortem report in the case diary. The investigating officer submitted the charge-sheet against the accused-appellants as Ex.Ka.-13 and Ka.-14 for the offence under Sections 147, 323, 304 IPC. 15. Concerned Magistrate took the cognizance in the matter and the case was committed to the Court of Sessions being exclusively triable by the Court of Sessions. 16. Accused-appellants appeared before the trial Court. Charges under Section 147, 302 read with 149, 323 read with 149 IPC were framed against them. Accused-appellants pleaded not guilty and claimed their trial. 17. In order to prove its case, the prosecution examined P.W.1 Roshan, the informant of the case, who claimed himself as an injured witness, P.W.2 Siree and P.W.3 Gulab, who claimed themselves as eye-witness accounts, P.W.4 Ghurbhari, who also claimed himself as an injured witness, P.W.5 Dr. M.S. Alam, who had examined deceased Vishambhar and injured Gurbhari on 24.3.1980 and prepared the injury reports, P.W.6 Dr. K.P. Verma, who had conducted the autopsy on the body of the deceased, P.W. 7 Dr. R.B. Gupta, who had medically examined Roshan Prasad (P.W.1) on 24.3.1980. He had also examined accused-appellant Lal Chand (since died) and his wife smt. Muratia on 25.3.1980 and prepared the injury report Ex.Kha.-1and2 respectively. P.W.8 Hridya Nand Pandey had prepared the chick F.I.R. Ex.Ka.-7 and G.D. Ex.Ka.-8. He had also prepared the termimi (conversion) G.D. Ex.Ka-9. R.B. Gupta, who had medically examined Roshan Prasad (P.W.1) on 24.3.1980. He had also examined accused-appellant Lal Chand (since died) and his wife smt. Muratia on 25.3.1980 and prepared the injury report Ex.Kha.-1and2 respectively. P.W.8 Hridya Nand Pandey had prepared the chick F.I.R. Ex.Ka.-7 and G.D. Ex.Ka.-8. He had also prepared the termimi (conversion) G.D. Ex.Ka-9. In the cross-examination, he had admitted that on 24.3.1980 at about 23:30 hours, cross case on the basis of written report submitted by accused-appellant Lal Chand (since died) was registered against Roshan, Bahadur, Ghurbhari and Harihar under Sections 323, 325 IPC. This witness has proved the G.D. entry of the cross case as Ex.Kha.-3. P.W.9 ASI Ahmad Khan (retired), the investigating officer was also examined, who has proved the site plan and charge-sheet. In the cross-examination, this witness has admitted that a cross case as Sessions Trial No. 252 of 1982 (State v. Siree and others) was pending in which he had also prepared the site plan and completed the investigation. He found the place of occurrence in the cross case and in the present case to be the same. 18. After conclusion of the prosecution evidence, statements of the accused persons under Section 313 Cr.P.C. were recorded by the trial Court. 19. Accused-appellants have denied the prosecution story and have stated that F.I.R. was lodged on the basis of false facts. Witnesses have deposed before the Court on account of enmity. They have specifically stated that on the date of incident, accused-appellant Lal Chand had gone to settle the account from Siree and others where Siree and others beat Lal Chand and his wife Muratia and a cross case lodged on behalf of the appellant was going on in the Court. More or less all the appellants have stated the same facts and denied the prosecution version. 20. Accused-appellants in their defence have examined D.W.1 Dr. N.K. Jaiswal, Radiologist, District Hospital, Deoria, who proved the X-ray report Ex.Kha.-4 of Smt. Muratia wife of appellant Lal Chand (since died). 21. Accused-appellants have also placed reliance on the Ex.Kha.-1, 2 and 3 mentioned in the earlier part of this judgment. They had also filed the certified copy of the F.I.R. of case crime No. 35-A of 1980, the site plan Ex.Kha.-5 and 6, Carbon copy of the G.D. entry of case crime No. 35-A of 1980 Ex.Kha.-3. 22. 21. Accused-appellants have also placed reliance on the Ex.Kha.-1, 2 and 3 mentioned in the earlier part of this judgment. They had also filed the certified copy of the F.I.R. of case crime No. 35-A of 1980, the site plan Ex.Kha.-5 and 6, Carbon copy of the G.D. entry of case crime No. 35-A of 1980 Ex.Kha.-3. 22. The learned Trial Court after hearing the parties and taking into consideration the statements of the accused/witnesses and other evidence on record, convicted and sentenced the accused-appellants as above. Hence this appeal. 23. Before proceeding to refer the submissions advanced by the learned counsel for the parties, we would like to refer the cross version of the accused-appellants, which was taken in case crime No. 35-A of 1980. 24. Cross F.I.R. relating to case crime No. 35-A of 1980 was registered on the basis of written report (Ex.Kha.-5) moved by the accused-appellant Lal Chand (since died) with the averments that about 4-5 days prior to the alleged incident, fishing was done by the informant Lal Chand in a pond situated towards western side of the village wherein Siree, Roshan and Bahadur were co-sharers. On 24.3.1980 at 7:30 p.m., when the informant demanded amount of his share given during the auction from Siree, Roshan and Bahadur, they abused him and started beating him with lathi and danda. On his raising alarm, his wife Muratia rushed there to save him. She was also given a beating by the accused persons. On hearing the hue and cry, Ghugli Harjan, Khedas Harijan, Baleshar Harijan and many other people came there and rescued them. Thereafter the accused-persons fled away to their home. It was also mentioned in the written report that informant also wielded lathi in his defence. Accused-appellant Lal Chand (since died) and his wife Muratia received several injuries in the incident. Muratia also suffered fracture in her left hand. 25. The injuries suffered by Lal Chand, as mentioned in Ex.Kha.-1, are as follows: (i) Contusion with swelling (¾’’ x ½’’ on the occipital region of scalp. (ii) Contusion 3½ ‘’ x ½’’ on the upper part right scapula region. (iii) Contusion 2½’’ x ½’’ on the middle part of left scapula region. (iv) Contusion 2¾’’ x ½’’ on the lower part of right scapula region 8'’ below the injury No. (ii). (v) Abrasion ¼’’ x ¼’’ on outer surface and middle part of left forearm. (ii) Contusion 3½ ‘’ x ½’’ on the upper part right scapula region. (iii) Contusion 2½’’ x ½’’ on the middle part of left scapula region. (iv) Contusion 2¾’’ x ½’’ on the lower part of right scapula region 8'’ below the injury No. (ii). (v) Abrasion ¼’’ x ¼’’ on outer surface and middle part of left forearm. (vi) Abrasion ¼’’ x ¼’’ on the front of right knee joint. (vii) Contusion 1'’ x ¼’’ on the anterior surface and middle part of left arm. In the opinion of doctor, all the injuries were simple in nature and caused by blunt object and were fresh. 26. Injuries relating to smt. Muratia wife of Lal Chand as is shown in Ext.Kha.-1 are as follows : (i) Lacerated wound ½’’ x ½’’x skin deep on the outer surface and middle part of left forearm. It was 4'’ above the wrist joint. There was swelling around the wound. In the opinion of the doctor, injury was caused by blunt object. X-ray report Ex.Kha-4 of injured Muratia was prepared after x-ray on the advise of doctor. 27. We have heard Sri A.B. Singh, learned counsel for the appellants, S/Sri Rajeev Sharma and Rahul Asthana, learned A.G.A. for the State and perused the entire record. 28. Learned counsel appearing for the appellants submitted that there was a cross case against the informant’s side. Accused-appellant Lal Chand (since died) as well as his wife Muratia had also sustained injuries in the course of same occurrence, which were not explained by the prosecution. There was grievous injury to Smt. Muratia, as her left hand was found fractured. The prosecution had suppressed the material facts and the origin and genesis of the incident. Therefore, benefit of doubt would go to the appellants. It was further submitted that the prosecution did not adduce any documentary evidence relating to lease said to be executed in favour of Siree. Thus, motive attributed against the appellants was not proved by the prosecution. It was next argued that there are major contradictions on material point in the statements of the prosecution witnesses. P.W.2 Siree and P.W.3 Gulab, the real brothers, were not present on the spot. They are relative of the deceased. Thus, motive attributed against the appellants was not proved by the prosecution. It was next argued that there are major contradictions on material point in the statements of the prosecution witnesses. P.W.2 Siree and P.W.3 Gulab, the real brothers, were not present on the spot. They are relative of the deceased. Similarly, P.W.1 Roshan and P.W.4 Ghurbhari are the sons of the deceased and their testimony are not free from suspicion and they cannot be relied upon merely on the basis that they are the injured witnesses. Since prosecution has suppressed the actual scenario, place of occurrence is also doubtful, therefore, suggestion shown by the appellants regarding the incident is probable and believable one. It was further submitted that the trial Court has committed illegality in convicting and sentencing the appellants for the aforesaid offence. Prosecution had not established its case beyond reasonable doubt. There are improvements on material point in the prosecution case at every stage, which materially destroy the version of the prosecution witnesses. Witnesses examined on behalf of the prosecution are also interested and inimical witnesses. Therefore, also prosecution case becomes doubtful, as it is not supported by any independent witness/evidence. 29. Per contra, learned A.G.A. appearing on behalf of the State submitted that there was no occasion for the prosecution to explain the injuries said to have been inflicted on the accused-appellant Lal Chand (since died) and Smt. Muratia. Injuries said to have been sustained by the appellant’s side were minor and superficial. Non-explanation of injuries by the prosecution will not affect the prosecution case adversely. Prosecution witnesses have clearly denied of causing any injury to the accused-appellant Lal Chand (since died) and Smt. Muratia. It was further submitted that P.W.1 and P.W.4, both are injured witnesses. They had received several injuries in the same incident, therefore, their testimony cannot be discarded merely on the basis that they are the relatives of the deceased. Date, time and place of occurrence have been admitted by the defence. Cross case filed on behalf of the accused-appellants has resulted in acquittal and no appeal was preferred against the acquittal. Thus, the accused-appellants cannot derive any benefit from the result of the cross case. Lastly, it was argued that the prosecution case on the point of date, time and the place of occurrence and also on manner of assault is consistent, cogent and reliable and is supported by medical evidence. Thus, the accused-appellants cannot derive any benefit from the result of the cross case. Lastly, it was argued that the prosecution case on the point of date, time and the place of occurrence and also on manner of assault is consistent, cogent and reliable and is supported by medical evidence. The trial Court has analysed the evidence in detail and has rightly found it to be credible, cogent and trustworthy. 30. Before entering into the proposition of law and the factual aspects of the matter, we would also like to refer to the finding of the trial Court recorded in the impugned judgment on material point : (i) Prosecution was able to establish its case beyond reasonable doubt. (ii) The testimony of P.W.1 Roshan, P.W.2 Siree, P.W.3 Gulab and P.W4 Ghurbhari finds support with the medical evidence. They are fully reliable witnesses. Their testimony cannot be discarded. (iii) The First Information Report was lodged promptly without any delay at the time mentioned in the chick F.I.R. (iv) Medical evidence is not in conflict with the oral testimony. (v) It is apparent from the facts mentioned in the F.I.R. that the common intention of the accused was to cause death of the deceased and to cause injuries to the injured who came for rescue. (vi) Relations and enmity elucidated by the appellants did not place the eye-witness as untrustworthy. (vii) The injuries found on the body of the deceased were sufficient in ordinary course of nature to cause the death of the deceased. (viii) Trial Court, while passing the impugned judgment and order, has also observed that on the date, time and place mentioned in the written report (Ex.Ka.-1), accused-appellants had caused injuries to the deceased Vishambhar, P.W.1 Roshan and P.W.4 Ghurbhari. Deceased Vishambhar died in the hospital during treatment. (ix) In the fact and circumstances of the case the plea taken by the accused-appellants is not probable and believable. 31. We have considered the submissions raised by the learned counsel for the parties and the facts and circumstances of the case as well as evidence available on record. 32. Since both the parties have come up before the Court with cross versions, therefore, we would like to refer to the legal position regarding appreciation of the pleading and evidence in cross cases by citing the following case laws : (I) Mohd. 32. Since both the parties have come up before the Court with cross versions, therefore, we would like to refer to the legal position regarding appreciation of the pleading and evidence in cross cases by citing the following case laws : (I) Mohd. Khalil Chisti v. State of Rajasthan and others, (2013) 2 SCC 541 . (II) Raghuveer Singh v. State of Rajasthan, (2011) 12 SCC 235 (III) Waman v. State of Maharashtra, (2011) 7 SCC 295 (IV) Krishnan v. State of Tamil Nadu, (2006) 11 SCC 304 (V) Babu Lal Bhagwan Das Khandare v. State of Maharashtra, (2005) 10 SCC 404 (VI) Rizan v. State of Chhattisgarh, (2003) 2 SCC 661 (VII) Sekar v. State, (2002) 8 SCC 354 (VIII) Salim Zia v. State of U.P., (1979) 2 SCC 648 (IX) Mohinder Pal Jolly v. State of Punjab, (1979) 3 SCC 30 (X) Pratap v. State of U.P., (1976) 2 SCC 798 (XI) Lakshmi Singh v. State of Bihair, (1976) SCC (CRI) 671 (XII) Rishi Kesh Singh v. State, AIR (ALL)-1970-0-51 33. In a Full Bench decision of this Court in the case of Rishi Kesh Singh (supra) dealing the issue of availability of right of self defence in the paragraph 79 it was held that “The dictum of the majority of learned Judges of this Court in 1941 All LJ 619 : AIR 1941 All 402 (FB) is still good law. But, it may be elucidated that in a case in which any general exception in the Indian Penal Code is pleaded by an accused and evidence is adduced to support such a plea, but such evidence fails to satisfy the Court affirmatively that the accused has fully established his plea of the claimed exception, he will still be en-titled to an acquittal, if, upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the said general exception), a reasonable consequential doubt is created in the mind of the Court as to whether the accused is really guilty of the offence with which he is charged. In accordance with the majority opinion, our answer to the question referred to this Full Bench is as follows : The majority decision in 1941 All LJ 619 = AIR 1941 All 402 (FB) is still good law. In accordance with the majority opinion, our answer to the question referred to this Full Bench is as follows : The majority decision in 1941 All LJ 619 = AIR 1941 All 402 (FB) is still good law. The accused person is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the general exception) a reasonable doubt is created in the mind of the Court about the guilt of the accused.” 34. In Mohd. Khalil Chisti’s case (supra), Hon’ble the Apex Court, dealing with the issue of availability of right of self defence and discussing the earlier decisions, has held in paragraphs 30, 31, 32, 34, 35 as under. “30. In Lakshmi Singh v. State of Bihar, this Court held that: (SCC p. 400, para 12) “12. ... It is well-settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence.” It is clear that: “12. ... where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants. ... ... where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants. ... in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: ‘’(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.’” (Lakshmi Singh case, SCC p. 401, para 12) 31. It is further clear that: (Lakshmi Singh case, SCC pp. 401-02, para 12) “12. ... The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. ... [However,] there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, ... that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.” 32. In Waman v. State of Maharashtra, wherein one of us (P. Sathasivam, J.) reiterated the very same principles and held that: (SCC p. 306, para 36) “36. that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.” 32. In Waman v. State of Maharashtra, wherein one of us (P. Sathasivam, J.) reiterated the very same principles and held that: (SCC p. 306, para 36) “36. Ordinarily, the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of occurrence, if the injuries are minor in nature, however, if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of the same occurrence then certainly the Court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. However, if the evidence is clear, cogent and creditworthy then non-explanation of certain injuries sustained by the deceased or injury on the accused ipso facto cannot be the basis to discard the entire prosecution case. 34. In Raghubir Singh v. State of Rajasthan, the following conclusion in para 16 has been pressed into service: (SCC p. 241) “16. In the light of the facts that have been enumerated above, it would be seen that the observations of the High Court that both sides had come to do battle appears to be justified as this is an assessment on an appreciation of the evidence which cannot be said to be palpably wrong so as to invite the intervention of this Court. The observation in Gajanand case that in order to bring the matter within a free fight both sides have to come armed and prepared to do battle must be applied in the present case with the result that each accused would be liable for his individual act.” 35. In Krishnan v. State of T.N., the following principles have been relied on: (SCC pp. 311-13, paras 15-17) “15. It is now well-settled that the onus is on the accused to establish that his action was in exercise of the right of private defence. The plea can be established either by letting in defence evidence or from the prosecution evidence itself, but cannot be based on speculation or mere surmises. The accused need not take the plea explicitly. It is now well-settled that the onus is on the accused to establish that his action was in exercise of the right of private defence. The plea can be established either by letting in defence evidence or from the prosecution evidence itself, but cannot be based on speculation or mere surmises. The accused need not take the plea explicitly. He can succeed in his plea if he is able to bring out from the evidence of the prosecution witnesses or other evidence that the apparent criminal act was committed by him in exercise of his right of private defence. He should make out circumstances that would have reasonably caused an apprehension in his mind that he would suffer death or grievous hurt if he does not exercise his right of private defence. There is a clear distinction between the nature of burden that is cast on an accused under Section 105 of the Evidence Act (read with Sections 96 to 106 of the Penal Code) to establish a plea of private defence and the burden that is cast on the prosecution under Section 101 of the Evidence Act to prove its case. The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability (vide Partap v. State of U.P., Salim Zia v. State of U.P. and Mohinder Pal Jolly v. State of Punjab). 16. In Sekar v. State, this Court observed: (SCC p. 355b-d) ‘’A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case, the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record.’ 17. The above legal position was reiterated in Rizan v. State of Chhattisgarh. After an exhaustive reference to several decisions of this Court, this Court summarised the nature of plea of private defence required to be put forth and the degree of proof in support of it, thus: (SCC pp. 670-71, para 13) ‘’13. ... Under Section 105 of the Evidence Act, 1872, the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. When the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. When the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. ... The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea. 35. The sum and substance of the legal position propounded in the case laws discussed above are as follows : (I) If the general exception under the I.P.C. is pleaded by an accused and evidence is adduced to support such a plea, but such evidence fails to satisfy the Court affirmatively, he will still be entitled to an acquittal, if, upon consideration of the evidence as a whole, a reasonable consequential doubt is created in the mind of the Court. Cases in which accused did not plead but the circumstance shows that right of private defence was legitimately exercised, it is open to the Court to consider such a plea. (II) Where the prosecution fails to explain the injuries on the accused, which are grievous in nature and have been sustained in the course of same occurrence, it follows that prosecution witnesses are lying on a most material point and their statement is untrue and the injuries probablise the plea of appellants and the prosecution has suppressed the origin and the genesis of the occurrence. (III) The omission on the part of the prosecution to explain the injuries, grievous in nature, on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses. In such a situation, the Court looks at the prosecution case with a little suspicion. (IV) Plea of right of private defence cannot be based on surmises and speculations. 36. In such a situation, the Court looks at the prosecution case with a little suspicion. (IV) Plea of right of private defence cannot be based on surmises and speculations. 36. As is clear from the F.I.R. pertaining to case crime No. 35 of 1980 and cross F.I.R. relating to case crime No. 35-A of 1980 that both the parties have come up with two different versions for the same incident. Both sides had received injuries, as is also clear from the injury reports proved by the witnesses. It is also clear from the evidence that the injuries sustained by the deceased Vishambhar, informant Roshan (P.W.1) and Ghurbhari (P.W.4) and also the injuries received by accused-appellants Lal Chand (since died), Smt. Muratia were caused at the same point of time in the course of same occurrence. Deceased Vishambhar, P.W.1 Roshan and P.W.4 Ghurbhari were examined as medico legal cases on the same day of the occurrence. Accused-appellant Lal Chand (since died) and Smt. Muratia were sent for medical examination by the concerned police when they had gone to lodge the F.I.R. The F.I.R. lodged on behalf of the prosecution side in this case is first in time, but both the F.I.R. had been lodged on the same day. 37. Prosecution case is that when deceased Vishambhar and P.W.1 Roshan asked the accused-appellants not to forcibly possess/occupy the lease land in the night, they started assaulting the deceased and injured persons at the place mentioned in the F.I.R. relating to case crime No. 35 of 1980. 38. Cross version is that when accused-appellant Lal Chand (since died) had gone to settle his account from P.W.1 Roshan P.W.2 Siree and other persons belonging to prosecution side with regard to his share from the proceeds of the auction of the fish pond, they inflicted injuries to the accused-appellant Lal Chand (since died). When Smt. Muratia, the wife of the Lal Chand, also reached there to save her husband, she was also beaten by them. A grievous injury in the form of fracture in the left hand was also found by the doctor on the person of Smt. Muratia. 39. In the present matter, prosecution have not explained the injuries said to have been received by the accused-appellant Lal Chand (since died) and his wife Smt. Muratia. Seven injuries were found on the person of accused-appellant Lal Chand (since died). 39. In the present matter, prosecution have not explained the injuries said to have been received by the accused-appellant Lal Chand (since died) and his wife Smt. Muratia. Seven injuries were found on the person of accused-appellant Lal Chand (since died). One grievous injury in the nature of fracture in left hand was found on the person of Smt. Muratia. Prosecution witnesses consistently denied that they have not caused any injury to the accused-appellant Lal Chand (since died) and Smt. Muratia. They have also stated that they were not armed with any weapon like lathi, danda etc. If the version of the F.I.R. pertains to crime No. 35 of 1980 is taken into consideration, initially, only the deceased Vishambhar and P.W.1 Roshan were present on the spot. Nothing was mentioned in the F.I.R. about the presence of Siree, Gulab or Ghurbhari at the initial stage. It was also not mentioned in the F.I.R. lodged by the prosecution side whether P.W.2 Siree had gone to inform the deceased Vishambhar to Lar Market about the act of the accused-appellants. This fact that Siree had gone to inform the deceased to the Lar Market about the encroachment said to have been made by the accused-appellants over the lease land was disclosed before the Court for the first time. As per prosecution evidence itself when deceased Vishambhar asked the accused-appellants regarding occupation of the abadi land, P.W.2, P.W.3 and P.W.4 were not present there. P.W.1 Roshan and P.W.4 Ghurbhari are the sons of the deceased. P.W.2 Siree and P.W.3 Gulab are the real brothers and were closely related with the deceased. As per prosecution, dispute originated with regard to the possession over the lease land of P.W.2 Siree. Prosecution did not adduce any documentary evidence regarding execution of the lease in favour of Siree (P.W.2). There are only oral evidence in regard to allotment of disputed land in favour of Siree (P.W.2). This fact was also not mentioned in the F.I.R. Investigating officer had also not collected any documentary evidence in this regard. As per the investigating officer, place of occurrence in both the cases was the same. Prosecution witnesses also admitted that blood was not found by the investigating officer at the place of occurrence as the place where the occurrence took place was washed out/cleaned with water by one Shanker. As per the investigating officer, place of occurrence in both the cases was the same. Prosecution witnesses also admitted that blood was not found by the investigating officer at the place of occurrence as the place where the occurrence took place was washed out/cleaned with water by one Shanker. There is contradiction in the statement of prosecution witnesses whether P.W.1 Roshan became unconscious on the spot or not at the time of incident. 40. If the medical evidence available on record is compared in consonance with cross version, it is clear that time of the injuries sustained by the accused-appellant Lal Chand (since died) and his wife Muratia and time of occurrence as alleged by the prosecution side is the same. Medical evidence on this point is clear and cogent. 41. Upon consideration of entire evidence adduced by the parties in this case, we find that prosecution has not come up with the true version. Motive attributed to the accused-appellants was also not proved. Prosecution has changed its version at subsequent stage. Information said to have been given by Siree (P.W.2) to the deceased in the Lar market was not disclosed in the F.I.R at initial stage. Prosecution has suppressed the material fact as to injuries sustained by the accused-appellant Lal Chand (since died) and his wife Muratia in the course of same occurrence. One of the injuries i.e. fracture in the hand is grievous in nature. P.W.1 and P.W.4 are the sons of the deceased. P.W.2 and P.W.3 are real brothers and closely related to the deceased. P.W.1, P.W.2, P.W.3 and P.W.4 all have stated false fact that they were unarmed at the time of occurrence. If they were unarmed and had not caused the injuries to the appellant’s side then how they received injuries in the same incident. There is also contradictory statement on point of unconsciousness of the prosecution witnesses after the incident. Omission to explain the injuries sustained by the appellant by the prosecution creates suspicion about the prosecution case and also origin and genesis of the occurrence. In the present matter, only on the basis of ocular evidence of the prosecution witnesses, the origin and genesis of the case cannot be held to be established particularly when they are the relative and family members of the deceased. In the present matter, only on the basis of ocular evidence of the prosecution witnesses, the origin and genesis of the case cannot be held to be established particularly when they are the relative and family members of the deceased. If the plea taken by the appellant be also not taken into consideration or be taken as not proved, then also on the ground of improvement, contradictions, non-explanation of grievous injuries sustained by the appellants’ side, the prosecution case becomes doubtful. It also becomes doubtful because the eye account witnesses being relative of the deceased have not come up with true version. Findings recorded by the trial Court on point of credibility of P.W.1, P.W.2, P.W.3 and P.W.4, about the manner of incident and on other material points are not in accordance with the fact and law and the same are illegal and perverse and are not sustainable. In the facts and circumstances of the case and the evidence led by the parties, the origin and genesis of the occurrence stated by the prosecution becomes doubtful. Thus, in view of settled legal position summarized above, appellants are entitled to benefit of doubt and acquittal. The appeal having merit is liable to be allowed. 42. On the basis of aforesaid discussion in our considered opinion and also applying the rule of caution, conviction of the appellants Baleshar, Sheo Nath and Bachha alias Om Prakash under Sections 302/149 IPC, 323/149 IPC and 147 IPC cannot be sustained and is liable to be set-aside and in the circumstances of the case, the appellants deserve acquittal. 43. Consequently, appeal is allowed. 44. The impugned judgment and order dated 27.1.1983 passed by III Additional District and Sessions Judge, Deoria in Sessions Trial No. 254 of 1982 (State v. Baleshar and others) arising out of case crime No. 35 of 1980, P.S. Lar, District Deoria is set-aside and the appellants Baleshar, Sheo Nath and Bachha alias Om Prakash are acquitted of the charges levelled against them under Sections 302/149 IPC, 323/149 IPC and 147 IPC and their conviction and sentence are hereby quashed and set-aside. The appellants Baleshar, Sheo Nath and Bachha alias Om Prakash are on bail. They need not to surrender. Their personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 45. The appellants Baleshar, Sheo Nath and Bachha alias Om Prakash are on bail. They need not to surrender. Their personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 45. Let a copy of this judgment alongwith the trial Court record be sent to the Court concerned for compliance. ———————