JUDGMENT Hon’ble Harsh Kumar, J.—This criminal appeal has been filed against the judgment and order dated 16.4.1983 passed by Special Additional Sessions Judge, Fatehpur in S.T. No. 202 of 1982, State v. Suraj Bali and 5 others, under Sections 147, 148, 302/149 IPC, P.S. Asothar, District Fatehpur and convicting all the six accused-persons for offences under Section 302/149 IPC and further convicting accused Deo Muni for offence under Section 148 IPC and all the rest five accused for offences under Section 147 IPC and sentenced them with life imprisonment under Section 302/149 IPC, two years rigorous imprisonment under Section 148 IPC and one year rigorous imprisonment under Section 147 IPC. Feeling aggrieved, all the six accused jointly filed present appeal seeking their acquittal. 2. The brief facts relating to the appeal are that : 3. Feeling aggrieved, all the six accused jointly filed present appeal seeking their acquittal. 2. The brief facts relating to the appeal are that : 3. According to F.I.R. lodged by Gaya Prasad at 3:15 p.m. on 4.4.1982, his real brother Lalni @ Raj Kumar was grazing his cattle at noon on 4.4.1982 in the fields of Dhunna Pandit in North, of which there are fields of Suraj Bali and others in which the crop of Arhar was standing; that per chance, the cow of Lalni entered in the Arhar fields of Suraj Bali, upon which Suraj Bali, Ram Autar, Ram Lakhan and Deo Muni @ Putti sons of Devi Deen arrived and started abusing Lalni; that then Lalni ran into their fields and brought his cow out of the fields of Suraj Bali and others; that thereafter Lalni returned to home and was sitting over his Charahi while Suraj Bali, Ram Autar, Ram Lakhan, Deo Muni @ Putti, Chandra Bali and Ram Swaroop, gathered at their house, which is adjoining and threatened Lalni of life for getting their Arhar crop damaged by his cattle; that Suraj Bali exhorted to bring the gun and finish Lalni, upon which at about 1:00 p.m. Deo Muni @ Putti brought the licenced gun of Suraj Bali and fired at Lalni, upon exhortation of Suraj Bali, Ram Autar, Ram Lakhan, Chandra Bali and Ram Swaroop, in presence of complainant Gaya Prasad, Dhunna, Bhukan and Sitaram; that on being sustained with fire-arm injuries Lalni fell down, upon which Ram Autar, Chandra Bali, Ram Swaroop and Ram Lakhan gave lathi blows to Lalni and pointed the gun towards the complainant and others due to which, they could not dare to proceed and after leaving of accused-persons, taken body of Lalni to his barotha. 4. On F.I.R., having been lodged promptly against the named accused at case crime No. 30 of 1982, the investigation was conducted by Investigating Officer and upon preparation of the inquest report, sending body of deceased for post-mortem examination and collecting sufficient material evidence against accused-persons, charge-sheet was submitted, upon which cognizance was taken and the case was committed to sessions. On F.I.R., having been lodged promptly against the named accused at case crime No. 30 of 1982, the investigation was conducted by Investigating Officer and upon preparation of the inquest report, sending body of deceased for post-mortem examination and collecting sufficient material evidence against accused-persons, charge-sheet was submitted, upon which cognizance was taken and the case was committed to sessions. The Additional Sessions Judge (Special Judge), Fatehpur, framed charges under Sections 302 read with Section 149 IPC against all the accused-persons for committing offence and causing death of Lalni on 4.4.1982 at 1:00 p.m., charges under Section 148 IPC against Deo Muni @ Putti, who was armed with gun and charges under Section 147 IPC against others who was armed with lathis. The accused-persons denied from the charges and demanded trial. 5. In order to prove its case, the prosecution produced first informant Gaya Prasad as P.W.1 (eye-witness), Sita Ram as P.W.2 (eye-witness) Ansar Hussain head constable as P.W.3, Ram Sajiwan @ Dhunna as P.W.4 (eye-witness), Dr. S.C. Srivastava, (Medical Officer), who conducted post-mortem of the body of deceased as P.W.5 and Brahm Dev Singh the then S.O. of P.S. Asothar, (Investigating Officer) as P.S.6. The witnesses of fact P.W.1, P.W.2 and P.W.4 have proved the factual position while P.W.3, P.W.5 and P.W.6 have proved documentary evidence on record. 6. After completion of prosecution evidence, the statements of accused-persons were recorded under Section 313 Cr.P.C. and in their defence evidence the accused-persons produced Shyam Lal as D.W.1. 7. Learned trial Court after hearing the parties counsel and perusal of record, upon detailed analysis of evidence on record found that the prosecution has succeeded in proving its case against the accused-persons beyond any reasonable doubt and the accused-persons out of which accused Deo Muni was armed with gun (deadly weapon) formed an unlawful assembly and in prosecution of common object of the unlawful assembly, committed riots and caused death of Lalni and consequently convicted and sentenced them for the offences under Sections 302 read with Section 149 IPC and Sections 147 and 148 IPC. 8. Feeling aggrieved all the six accused filed present appeal jointly. During pendency of appeal, appellants Suraj Bali and Chandra Bali were reported to have died and the appeal with regard to them was abated vide order dated 30.3.2016 of this Court. 9. 8. Feeling aggrieved all the six accused filed present appeal jointly. During pendency of appeal, appellants Suraj Bali and Chandra Bali were reported to have died and the appeal with regard to them was abated vide order dated 30.3.2016 of this Court. 9. We have heard Sri I.K. Chaturvedi and Sri Akhilesh Pandey, learned counsel for the surviving accused-appellants and Sri Rajeev Gupta, Sri S.N. Tripathi, Sri Ramyash Pandey, Sri Pradeep Pandey, Sri Rahul Asthana, Sri Ram Sagar Yadav, Sri Umakant Mishra, Sri B.P. Tripathi, learned AGA for the State. 10. 9. We have heard Sri I.K. Chaturvedi and Sri Akhilesh Pandey, learned counsel for the surviving accused-appellants and Sri Rajeev Gupta, Sri S.N. Tripathi, Sri Ramyash Pandey, Sri Pradeep Pandey, Sri Rahul Asthana, Sri Ram Sagar Yadav, Sri Umakant Mishra, Sri B.P. Tripathi, learned AGA for the State. 10. Learned counsel for the appellants contended that the conviction and sentence is against the weight of evidence on record; that the sentence is too severe and is bad in law; that the prosecution has failed to prove its case; that the real fact is that deceased Lalni was grazing his cattle in the Arhar fields of accused-appellants and when he did not desist from doing so Suraj Bali and Ram Autar caught his cattle and were taking to Cattle Pond (Kanji House/Maveshi Khana), when the deceased and Babu Lal attacked them and in order to save their lives, they also wielded their lathis; that their brother-in-law (Bahnoi) Shyam Lal, who was staying at their home, for the rescue of appellants, fired with the gun, which hit Lalni; that multiple injuries were sustained to appellants Suraj Bali, Ram Autar and Deo Muni, which were sufficient to cause reasonable apprehension in their minds that death or grievous hurt will otherwise be the consequence of such assault due to which in exercise of right of private defence fire was opened from a considerable distance by D.W.1 Shyam Lal; that the evidence on record shows that prosecution party was aggressor in launching the assault and the injuries, if any, caused to the deceased were caused during exercise of right of private defence, in a spur of moment and not in a premeditated manner; that the appellants, who are real brothers have been falsely implicated; that the prosecution has concealed the origin and has failed to prove the charges against the appellants beyond reasonable doubt; that the conviction and punishment of accused-appellants under Sections 147, 148 and 302/149 IPC are bad on facts of law and they are liable to be acquitted of the charges framed against them; that in the alternative, the appellants at the most, may be convicted for offence under Section 304/149 IPC and setting aside their conviction and sentence under Section 302/149 IPC, the appeal is liable to be allowed and conviction and sentence are liable to be modified. 11. 11. Per contra, learned AGA contended that the impugned judgment and order is based on detailed analysis of evidence on record; that the learned trial Court has rightly come to the conclusion that the prosecution has succeeded in proving its case against the appellants to the hilt by reliable, cogent and trustworthy evidence, beyond any reasonable doubt; that there is no cross case or cross version by the accused-appellants and the allegations that they were allegedly attacked by deceased and Babu Lal, or injuries were caused to any of them or that the prosecution party was aggressor are absolutely wrong and incorrect; that the accused have failed to put their after-thought and false defence before the prosecution witnesses and have tried to set up a new case in their statements under Section 313 Cr.P.C. regarding the incident having taken place elsewhere on way from fields to Cattle Pond (Kanji house) when they were carrying the cattle of deceased; that had it been so, there could have been no reason or justification of not lodging a F.I.R. by the accused-appellants; that it is absolutely wrong to say that deceased and Babu Lal attacked accused-appellants or any of them or caused any injuries to any of them with lathi or kanta; that the alleged injuries of accused-persons Suraj Bali, Ram Autar and Deo Muni are of simple and superficial nature (which may be self-inflicted) and may not be considered to have been sustained in the occurrence in question; that as per settled principle of law, the prosecution is not obliged to explain the alleged simple and superficial injuries of accused-persons; that false and concocted injury reports have been obtained by accused-appellants after a period of 5 days from occurrence in order to set up a false defence; that the examination of alleged injuries of appellants Suraj Bali, Ram Autar and Deo Muni after a period of five days of the incident itself speaks that no grievous hurt was caused to any of the accused and despite advise for X-Ray of injury No. 3 of Deo Muni on hand, no X-Ray report was obtained; that it also shows that the false reports of simple and superficial injuries, which are self inflicted have been obtained; that the alleged injuries of appellants Suraj Bali, Ram Autar and Deo Muni are not proved to have been sustained in the occurrence in question and there is no nexus between the alleged injuries and occurrence in question; that it is proved from the evidence on record that on 4.4.1982 when the deceased was grazing his cattle in the fields of Ram Sajiwan @ Dhunna, per chance the cattle of deceased trespassed/entered in the Arhar fields of appellants on which they started abusing the deceased whereupon the deceased after chasing his cattle from their Arhar fields, took his cattle to home and tethered at his Charahi; that since the appellants were failed to catch and carry the cattle of deceased to Cattle Pond (Kanji house), feeling defeated and annoyed, they continued to threaten the deceased at his Charahi, beaten him with lathis and caused his death by gun shot injuries by Deo Muni @ Putti, upon exhortation of some of them; that the post-mortem report of deceased shows that as many as 14 anti mortem injuries were there on his person, including several gun shot injuries and rest injuries of lathis; that the accused-appellants have failed to assign any plausible reason for inordinate delay of 5 days in getting them medically examined; that the prosecution witnesses of fact P.W.1., P.W.2 and P.W.4 are eye-witnesses of the occurrence in question and their testimonies are consistent and trustworthy; that P.W.2 and P.W.4 are independent witnesses with no relationship with first informant and no enmity with accused-appellants and their testimony may not be discarded; that the alleged injuries of accused-persons or any of them were not sufficient to cause reasonable apprehension of life or grievous hurt in their minds entitling them to cause death of Lalni; that the defence evidence that upon attack on Suraj Bali, Ram Autar and Deo Muni by deceased and Babu, fire was made by D.W.1 Shyam Lal, is absolutely wrong and false; that the accused-appellants have been rightly convicted and punished under Section 302 IPC and their conviction is not liable to be converted under Section 304/149 IPC; that the appeal has been filed with absolutely false allegations and baseless ground and is liable to be dismissed. 12. As per post-mortem report Exhibit Ka-5 duly proved by P.W.5 Dr. S.C. Srivastava, who conducted the post-mortem of the body of Lalni @ Raj Kumar at 3 p.m. on 5.4.1982, the death of Lalni had taken place “due to shock and hemorrhage as a result of anti mortem injuries” about one day before and rigor mortis had passed from the upper body and was there on lower limbs. In post-mortem report following anti mortem injuries were found on the body of deceased : Ante-mortem Injuries 1. Fire-arm wound of entry 3 ½” X 2 “ X brain matter coming out, on the right side of the front of the head, in the frontal region involving the right eye, 2” above the lateral angle of the right angle of mouth. The margins are lacerated, inverted Blackening present. The underlying bones i.e. frontal bone and the orbital bone of the right eye are fractured 10 pellets and one wadding piece recovered from this injury. 2. Multiple abrasion on the right side of face in an area of 5" X 4". 3. Multiple fire-arm wound of entry in an area of 6 ½” X 2 ½” X chest cavity deep on the right upper part of the chest and the shoulder joint, 4" above the right nipple. The margins are inverted, lacerated and ecchymised - six pellets recovered from this injury. 4. Four fire-arm wound of entry on the upper part of the right upper arm, 5" above the right elbow joint. The margins are lacerated, inverted and ecchymised. Four pellets recovered from this injury. 5. Abrasion ½” X ¼” on the back of the right fore-arm, 5" below the elbow joint. 6. Contusion 7" X 1 ½” on the left side of the back on the scapular region, lying obliquely, 3" above the inferior angle of scapula (left). 7.Contusion 6" X 1" on the right side of the back of abdomen lying obliquely 5" above the crest of illiac bone(right). 8. Contusion 5" X 2" just on the right illiac crest bone on the back. 9. Contusion 7" X 1 ½” on the back of right scapular region, 3" above the inferior of the angle of right scapula. 10. Abrasion 4" X ½” on the left upper arm, 2" below the top of shoulder joint on the lateral aspect. 11. 8. Contusion 5" X 2" just on the right illiac crest bone on the back. 9. Contusion 7" X 1 ½” on the back of right scapular region, 3" above the inferior of the angle of right scapula. 10. Abrasion 4" X ½” on the left upper arm, 2" below the top of shoulder joint on the lateral aspect. 11. Abrasion 2 ½” X ½” on the top of left shoulder joint. 12. Abrasion 4" X 1" on the lateral part of abdomen, 2" above the left anterior, superior, illiac spine. 13. Lacerated wound 2" X ½” X bone visible on the left parietal region, 4" above the left tragus of the ear and 4 ½” above the left eye brow. 14. Lacerated wound 2 ½ “ X ½ “ X bone visible, 1” medial to injury No. (13) ..... (Twenty pellets and one wadding piece recovered from the body sent to S.P. Fatehpur in a sealed envelope through proper channel) P.W.5 Medical Officer in his cross-examination, has also proved the injury reports of appellants Suraj Bali, Deo Muni and Ram Autar Exhibits B-1, B-2 and B-3, who were examined by him on 9.4.1982 between 12:15 to 12:40 p.m. and found following injuries on their body : “Injury Report of Suraj Bali 1. Lacerated wound 6 cm x ½ cm x ½ cm on the right side of head, 8 cm away from right tragus from the ear and 10 cms above the right eye brow. 2. Incised wound 3 cm x ¼ cm x ¼ cm on the top of skull, 6 cm medial to injury No. 1 the margins are clear and clean cut. 3. Contusion 4 cm x 3 cm on the left leg 5 cm below the left knee joint on the back— Opinion- Simple. Injury No. 1 and 3 by blunt object such as lathi, injury No. 2 caused by sharp weapon, about 5 days old. Injury Report of Deo Muni 1. Traumatic swelling 4 cm x 3 cm on the left frontal region, 6 cm above the left eye brow. 2. Contusion 4 cm x 2 cm on the left back lying obliquely, 10 cms below the inferior angle of left scapula. 3. Injury Report of Deo Muni 1. Traumatic swelling 4 cm x 3 cm on the left frontal region, 6 cm above the left eye brow. 2. Contusion 4 cm x 2 cm on the left back lying obliquely, 10 cms below the inferior angle of left scapula. 3. Traumatic swelling 8 cm x 5 cm on the right dorsum of hand after abrasion 4 cm x 2 cm situated in the mid part of the swollen area marked tenderness present Advised X-ray for any bony abnormalities. 4. Complaint of pain on the upper aspect of right thigh but no obvious injury seen. Opinion Simple. Except injury No. 3 kept under observation caused by blunt object. Advised X-Ray. About 5 days old. Injury Report of Ram Autar 1. Traumatic swelling 4 cm x 2 ½ cm on the right side of head 7 cms away from the right ear tragus and 8 cm above the right eye brow. 2. Abrasion 5 cm x 3 cm on the top of the head in occipital area 8 cms away from the injury No. 1. 3. Abrasion 2 cm x 2 cm on the base of right middle finger on the dorsal aspect of the hand. 4.Contusion 9 cm x 8 cm on the top of the left shoulder joint. 5. Complaint of pain on the left back but no obvious injury seen. Opinion Simple. Caused by blunt object. About 5 days old.” 13. Upon hearing at length the arguments advanced by the learned counsel for the appellants and learned AGA, we find that following points are involved, for consideration in this appeal against the impugned judgment and order of conviction and sentence of appellants : 1. Whether the occurrence in question in which death of Lalni was caused did took place in the Courtyard in front of the house of accused between the Charahi of deceased and the house of accused as alleged by the prosecution and shown in the site plan Exhibit A-12. 2. Whether the occurrence in question in which death of Lalni was caused did took place in the Courtyard in front of the house of accused between the Charahi of deceased and the house of accused as alleged by the prosecution and shown in the site plan Exhibit A-12. 2. Whether the occurrence took place elsewhere, on way from fields to Cattle Pond (Kanji house), when the accused Suraj Bali, Ram Autar and Deo Muni @ Putti at the time of taking cattle of deceased to Cattle Pond (Kanji house), were attacked by deceased and Babu, upon which gun shot made by Shyam Lal (Behnoi of accused-persons) from the house, hit Lalni, resulting in his death, as alleged by accused-appellants. 3. Whether P.W.2 Sita Ram and P.W.4 Ram Sajiwan @ Dhunna are not independent witnesses and their testimonies are not trustworthy and whether the trial Court failed to appreciate evidence in right prospective and acted wrongly in relying on the testimony of above witnesses. 4. Whether due to absence of any injury to P.W.1, P.W.2 and P.W.4, they may not be considered to be eye-witnesses of the occurrence in dispute. 5. Whether the prosecution has failed to explain the injuries on the body of accused-appellants Suraj Bali, Ram Autar and Deo Muni @ Putti. If so its effect. 6. Whether the death of Lalni was committed by Shyam Lal D.W.1 in exercise of appellant’s right of private defence. If so its effect. 7. Whether the prosecution has failed to prove the charges and accused-appellants are entitled for acquittal by giving them benefit of doubt. 8. Whether the death of Lalni in the occurrence in dispute is culpable homicide not amounting to murder in view of provisions of exceptions if any to Section 300 IPC and is punishable under Section 304 read with Section 149 IPC. Point Nos. 1 and 2 14. 8. Whether the death of Lalni in the occurrence in dispute is culpable homicide not amounting to murder in view of provisions of exceptions if any to Section 300 IPC and is punishable under Section 304 read with Section 149 IPC. Point Nos. 1 and 2 14. Upon hearing the learned counsel and careful consideration of the evidence on record as well as findings given by the learned trial Court, we find that it is admitted to both the parties that prior to the occurence in question, the deceased was grazing his cattle in the fields of Dhunna Pandit, when suddenly a cow of deceased trespassed/entered in the Arhar fields of accused-appellants, upon which they abused the deceased, and the deceased drove his cow out of their Arhar fields, to his home, tethered his cow on Charahi (the place where people tether their cattle outside their house) and was sitting over his Charahi. It is not disputed that the first informant and accused-persons had a common ancestor, their grand fathers were real brothers and their houses are adjoining to each other in North of which, there are their Courtyards and Charahi of both the parties East-West adjoining to each other and in East and West of their Charahis, three nails are fixed, on each side for tethering their respective cattle. According to prosecution when the deceased was sitting over his Charahi, the accused-persons, also returned from the fields to their home and continued to abuse and threaten the deceased for damaging their Arhar crop, which converted into a quarrel and upon extortion of co-accused-appellants, Deo Muni @ Putti brought the licensed gun of Suraj Bali from their adjoining house and fired at the deceased, who fell on the ground and, thereafter, accused-persons continued to beat him indiscriminately with lathis in their hands. The prosecution witnesses of fact P.W.1, P.W.2 and P.W.4, are eye-witnesses of the incident, who have proved prosecution version and their evidence, is consistent with respect to the place and manner of occurrence, in which the death of Lalni was committed by accused-appellants. There are no material contradictions in their statements so as to discredit or disbelieve their testimonies. 15. The prosecution witnesses of fact P.W.1, P.W.2 and P.W.4, are eye-witnesses of the incident, who have proved prosecution version and their evidence, is consistent with respect to the place and manner of occurrence, in which the death of Lalni was committed by accused-appellants. There are no material contradictions in their statements so as to discredit or disbelieve their testimonies. 15. It is also the case of prosecution that after the incident since the gun was also pointed out towards the eye-witnesses, they could not dare to interfere and subsequent to the occurence, took the body of deceased from the place of occurrence to their Barotha. It is noteworthy that upon lodging of F.I.R. promptly, naming all the miscreants, the Investigating Officer prepared the inquest report, took the blood stained and simple mud/soil from the place of occurrence, the outer Courtyard in South of Charahi, marked by (1) where deceased was sitting, beaten and his body was lying after causing the gun shot injury by accused-appellants, as well as from the Barotha, where the body of deceased was kept subsequent to the occurrence, and upon inspecting the spot prepared site plan of the place of occurrence Ext. A-12 as well as the memo of recovery of mud Exhibit A-13. The Investigating Officer P.W.6, has proved the documentary evidence on record and also above Ext.A-12, the site plan of the place of occurrence and Ext.A-13, the recovery memo in respect of collecting the blood stained and simple soil/mud from the place of occurrence and Barotha. As per Government forensic reports Ext. A-18-19 human blood was found in the two samples of blood stained soil/mud. As per Government forensic reports Ext. A-18-19 human blood was found in the two samples of blood stained soil/mud. The accused appellants have not challenged the place of occurrence and have not suggested to any of the prosecution witnesses of fact or even to the Investigating Officer, that the occurrence did take place elsewhere and not in outer Courtyard in South of Charahi of deceased, but after completion of prosecution evidence, in their statements under Sections 313 Cr.P.C., they have stated that the incident in question took place on way from fields to Cattle Pond (Kanji house) at the time, when the accused Suraj Bali, Deo Muni and Ram Autar were taking the cattle of deceased to Cattle Pond (Kanji house) and were attacked by deceased and Babu Lal causing multiple injuries to them, upon which their brother-in-law Shyam Lal fired from their house resulting in death of Lalni. The suggestion given to P.W.1 in this regard that deceased and Babu Lal tried to get their cattle released from accused Suraj Bali, Ram Autar and Deo Muni @ Putti, and beaten them with lathi and kanta, upon which they also gave lathi blows to Lalni and Lalni died due to injuries caused by gun shot made from the house of accused-persons, has been clearly denied by the first informant. There is nothing on record to show that damage of Arhar crops, if any, and upto what extent was caused due to trespass of cow of deceased in the fields of accused-appellants. 16. It is proved from the evidence on record that the spot position has been correctly shown in site plan Exhibit A-12, which has not been disputed by the accused-appellants. According to the site plan Exhibit A-12, infront of the adjoining houses of deceased and accused-appellants, towards North, there is outer Courtyard/Ahata, where they keep their Khalihan and where Charahis of both parties exist and the above Courtyard of accused-appellants has a boundary wall on its West parallel to the Western wall of the house of accused-appellants. The height of above wall is about 6 feet as has been stated by P.W.4 Ram Sajiwan @ Dhunna in his statement on oath, on which neither any cross-examination was done, nor any other evidence to the contrary has been produced. The height of above wall is about 6 feet as has been stated by P.W.4 Ram Sajiwan @ Dhunna in his statement on oath, on which neither any cross-examination was done, nor any other evidence to the contrary has been produced. The site plan also shows that in West of the above Courtyard across the western boundary wall, are fields of accused-appellants shown by letter ‘B’ and on its South there is field as well as Courtyard and house of P.W.4 Ram Sajiwan @ Dhunna. In his cross-examination defence witness D.W.1 Shyam Lal, at page 94 of paper book has stated that eos'kh QkVd (i.e. Cattle Pond (Kanji house) vlksFkj esa gSA eqfYteku ds [ksr muds edku ls if'pe&mŸkj iM+rs gSA eqfYteku ds [ksr muds ?kj ls 2&2 1@2 QykZax nwj gSA 17. It may not be the case of accused-persons that the rasta of Cattle Pond (Kanji house) goes through their Courtyard and house. Apart from it, in view of the 6 feet high boundary wall in West of their Courtyard, there can be no question or possibility of rasta of Cattle Pond (Kanji house) going through the Courtyard or house of accused-appellants. However since the accused were not in a position to dispute the place of occurrence which is shown at a distance of 6 steps in North of house of accused-appellants, their defence witness D.W.1 has made an attempt to improve their stand and stated at page 95 of paper book that eqfYteku tkuojksa dks vius ?kj dh nqdku ds ikl ys vk;s tgk¡ ls gksdj lnj lkLrs ds fy, jkLrk tkrk gS] ;gh ij yyuh vkSj ckcwyky vius ?kj dh rjQ ls eqfYteku ds ikl vk;sÞA 18. The above statement is wrong, false and incorrect on its face because neither any such rasta has been shown in the site plan Ext. A-12, nor any suggestion as to passing of the road to Cattle Pond (Kanji house) through the Courtyard or houses of accused-appellants has been put to any prosecution witnesses or P.W.6, the investigating officer, nor there can be any possibility of rasta (thoroughfare) going through houses nor there is any evidence to above effect. A-12, nor any suggestion as to passing of the road to Cattle Pond (Kanji house) through the Courtyard or houses of accused-appellants has been put to any prosecution witnesses or P.W.6, the investigating officer, nor there can be any possibility of rasta (thoroughfare) going through houses nor there is any evidence to above effect. Even if, it is presumed for the sake of arguments (which is not admitted to prosecution) that cattle of deceased was being carried by accused-appellants from fields to Cattle Pond (Kanji house), the alleged place, over the rasta to Asothar (where the Cattle Pond (Kanji house) situate as per accused-appellants), may only be at a great distance, far-far away in West across the western wall of the house and Courtyard of the accused-appellants. In any case, the alleged rasta from fields to Cattle Pond (Kanji house) in Asothar, across the boundary wall may not be visible from the house and Courtyard of accused-appellants across the boundary wall. Since Shyam Lal D.W.1 is not alleged to be blessed with devine power to see across the wall as ‘SANJAY’ of ‘MAHABHARAT’, who was blessed with such power, for giving running commentary of War between ‘PANDAWAS’ and ‘KAURAVAS’ at a distant battle ground in ‘KURUKSHETRA’ to ‘DHRITRASHTRA’ in ‘HASTINAPUR’’ in ‘MAHABHARAT’. Under any imagination there can be no possibility of existence of alleged rasta through houses or of watching the incident at alleged rasta by Shyam Lal from house of accused-appellants and causing of fire-arm injury to the deceased by the fire allegedly made by him from their house beyond the boundary wall of Courtyard and house of accused-appellants. The defence witness Shyam Lal D.W.1 has failed to prove the distance from which he fired as well as that the deceased was visible to him and could have been sustained fire-arm injuries by the fire allegedly made by him from inside the house or from across the boundary wall. From the above facts and evidence on record, we find that appellants have taken a wrong and false stand of occurrence having been taken place elsewhere in the manner alleged by them, on way from fields to Cattle Pond (Kanji house) and also failed in their attempt to establish that the way to Cattle Pond (Kanji house) goes through the place of occurrence as well as house of accused-appellants. 19. 19. In view of discussions made above, we find that it is fully established from the evidence on record that the occurrence in question as well as firing by accused-appellant Deo Muni did take place in the manner as mentioned in F.I.R. in Courtyard to the South of Charahi of deceased and not over rasta in the manner alleged by the accused-appellants, at the alleged time of carrying the cattle of deceased from fields to Cattle Pond (Kanji house), and that neither the rasta from fields to Cattle Pond (Kanji house) goes through houses of accused-appellants nor the gun shot injury was caused to deceased by Shyam Lal. 20. Accordingly point No. 1 is decided in affirmative and Point No. 2 is decided in negative. Point Nos. 3 and 4 21. It is established from the evidence on record as has been discussed and held on point Nos. 1 and 2, that the occurrence in question took place in the manner mentioned in the F.I.R., in which upon extortion of co-accused appellants, Deo Muni with the licensed gun of Suraj Bali fired at the Lalni, hitting him on vital parts of body and all the accused-persons armed with lathis caused multiple injuries to the deceased, resulting in his death. The afterthought contention as to fire having been made by Shyam Lal D.W.1, in order to set up a false defence has been proved to be false and incorrect. It is pertinent to mention that there was no enmity between the first informant and accused-appellants and had the fire been made by Shyam Lal, as alleged by accused-appellants, there would have been no reason for prosecution (first informant Gaya Prasad, who is real brother of deceased), to falsely implicate the accused-appellants leaving Shyam Lal, the alleged real culprit. 22. It has been held by Apex Court in the case of Gangadhar Behra v. State of Orissa, (2002) 8 SCC 381 , that “It is more often than not that a relation would not conceal actual culprit and make allegations against innocent person.” 23. 22. It has been held by Apex Court in the case of Gangadhar Behra v. State of Orissa, (2002) 8 SCC 381 , that “It is more often than not that a relation would not conceal actual culprit and make allegations against innocent person.” 23. As far as trustworthiness of evidence of P.W.2 and P.W.4, Sita Ram and Ram Sajiwan @ Dhunna on account of their being interested witnesses is concerned, the trial Court has analyzed the evidence on record in detail and has rightly held that both of them are most natural witnesses and mere fact that P.W.2 Sita Ram used to be a worker of first informant and mere pendency of a case regarding correction of settlement map between P.W.4 Ram Sajiwan @ Dhunna and accused-persons, does not make their testimonies untrustworthy. It is proved from the evidence on record that at the time of occurrence P.W.2 Sita Ram was working in the khalihan of first informant, which was placed in the same Courtyard in which, occurrence in question did take place and if the first informant stood as surety for him and used to call him for work as and when required, he may not be considered interested witnesses and his testimony may not be discarded on this score, particularly when it has not been suggested to the witnesses that he was not present at the khalihan or is giving evidence due to any friendship with the first informant or on account of any enmity with the accused-persons. 24. As far as the testimony of P.W.4 Ram Sajiwan @ Dhunna is concerned, he is next door neighbour and first cousin of the accused-appellants. It is not disputed that the first informant, deceased and accused-appellants had a common ancestor, their grand fathers were real brothers while father of P.W.4 Ram Sajiwan @ Dhunna and accused-appellants were real brothers and thus P.W.4 Ram Sajiwan is more closely related with accused-appellants being their first cousin in comparison to the first informant being his distant cousin. The factum of pendency of revenue case for correction of settlement map has not been concealed by P.W.4 and merely for this reason, his testimony may not be discarded particularly in view of the fact that no enmity has been suggested to above witness P.W.4 by any of the accused-persons in lengthy cross-examination with him. The factum of pendency of revenue case for correction of settlement map has not been concealed by P.W.4 and merely for this reason, his testimony may not be discarded particularly in view of the fact that no enmity has been suggested to above witness P.W.4 by any of the accused-persons in lengthy cross-examination with him. This Ram Sajiwan @ Dhunna, is the same person in whose fields, the deceased was grazing his cattle when one of the cattle (cow) of deceased suddenly entered in the Arhar fields of the accused-persons resulting in occurrence in dispute. In view of the above evidence on record, the presence of Sita Ram and Ram Sajiwan @ Dhunna on the spot at the time of occurrence is fully established and they are most natural witnesses of the occurrence. The above witnesses have corroborated the evidence of P.W.1 and in absence of any material contradictions in their testimonies, there is no reason to discard their reliable and trustworthy evidence. In the case of Leela Ram v. State of Haryana, (1999) 9 SCC 525 , the Apex Court held that “the evidenciary value of testimony of son and brother-in-law of deceased in absence of any other factor to discredit the said witnesses, cannot be rejected merely on the ground that they were interested witnesses and at the same time, the testimony of local Sarpanch witnessing the occurrence was also liable to be treated reliable, as of an independent witness and the fact that brother of accused was his rival candidate at the election, held to be too feeble a ground to doubt or discard his evidence” dismissing the appeal of convict, and upholding the judgment of High Court, wherein High Court setting aside acquittal had passed conviction order,the Apex Court further held that “the ocular account given by relative witness does not by itself loose its evidenciary value unless some other factor is brought on record to discredit the creditworthiness of the witness” and that “Trivial discrepancies cannot affect the credibility of the evidence of the witness if it is otherwise acceptable”. In the case of Gangadhar Behra v. State of Orissa, (2002) 8 SCC 381 , it was held by the Apex Court that “relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against innocent person. In the case of Gangadhar Behra v. State of Orissa, (2002) 8 SCC 381 , it was held by the Apex Court that “relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against innocent person. Foundation has to be laid if plea of false implication is made. However, Court has to adopt careful approach and analyze the evidence to find out whether it is cogent and credible”. It is settled principle of law that testimony of partisan or interested witness cannot be discarded outright, rather it should be examined with more care and caution. In the case of Indra Pal Singh v. State of Uttar Pradesh, 2009 (1) ALJ 666 SC, the Apex Court upholding the order of High Court converting into conviction, the order of acquittal passed by Additional Sessions Judge, held that “minor inconsistencies appearing in statements of two eye-witnesses which are of very trivial nature must not be given undue importance and acquittal of the accused on such insignificant contradictions, is not proper” In Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 , the 3 Judges Bench of Apex Court has held “that in Criminal Trial a prosecutor is faced so many odds. Court shall not loose sight of the realities of life and cannot afford to take an unrealistic approach of values in public life. Some discrepancy is inevitable - but a discrepancy existing in a prosecution case should not weigh with the Court so long it does not materially effect the case. Duty of Courts is not only to see that no innocent man is punished but also to ensure that no person committing an offence should go scot free.” 25. It is proved from the evidence on record that when the occurrence in question took place in the Courtyard, the deceased was all alone at his Charahi and he was beaten by accused-appellants and on hue and cry by the time, the first informant and witnesses could have reached for his rescue, upon extortion by co-accused he was hit by the fire made by Deo Muni with the gun of Suraj Bali and since the gun was also pointed towards first informant and witnesses, they could not dare to proceed. In the circumstances, not sustaining of any injury to any of them at the hands of accused-appellants, is not unusual, rather quite natural. Hence, in absence of any injury on the person of eye-witnesses, their presence on the spot at the time of occurrence and may not be doubted and their testimony may not be discarded on this score. 26. From the evidence on record the prosecution has proved to the hilt and beyond any shadow of doubt that the occurrence in dispute was committed by accused-appellants and there is no iota of evidence on record to suggest that leaving the real culprit, Shyam Lal, accused-appellants have been falsely implicated. 27. In view of the discussions made above, we have come to the conclusion that P.W.2 and P.W.4 are independent witnesses and even in absence of injuries to any of them, the evidence of P.W.1, P.W.2 and P.W.4, may not be discarded on account of their being interested witnesses or for want of injuries on their person. Point Nos. 3 and 4 are accordingly decided against the appellants. Point No. 5 28. Much emphasis has been placed by the appellants in their arguments that the prosecution is bound to prove its case beyond all reasonable doubts as well as to explain the injuries sustained by the accused-appellants and if the prosecution fails to explain the injuries sustained by the accused-appellants, adverse inference has to be drawn against the prosecution for concealing the origin of occurrence. It was contended that multiple injuries were sustained by the co-accused Suraj Bali, Ram Autar and Deo Muni, of which no explanation has been given by the prosecution and in absence of any explanation by the prosecution, defence version that above injuries were sustained to them during occurrence in question at the hands of deceased and Babu Lal on way from fields to Cattle Pond (Kanji house) at the time of carrying cattle of deceased, has to be accepted as correct. 29. Perusal of injury reports of accused-appellants show that medical examination of accused-appellants Suraj Bali, Deo Muni and Ram Autar was done on 9.4.1982 between 12:15 p.m. to 12:40 p.m. and not even a single grievous injury was found on vital or non-vital parts of persons of any of the three accused-appellants. 29. Perusal of injury reports of accused-appellants show that medical examination of accused-appellants Suraj Bali, Deo Muni and Ram Autar was done on 9.4.1982 between 12:15 p.m. to 12:40 p.m. and not even a single grievous injury was found on vital or non-vital parts of persons of any of the three accused-appellants. The description of injuries mentioned in the three injuries reports Exhibit B-1, B-2 and B-3 shows that all the injuries were of simple and superficial nature and possibility of their being self-inflicted, may not be ruled out. 30. In injury report of Suraj Bali, injury No. 1 is only a lacerated wound, injury No. 2 is an incised wound of 3 cm x ¼ cm x ¼ cm, while the injury No. 3 is a mere contusion over the back of left knee. The width and depth of injury No. 2 the incised wound, is so negligible which may be inflicted by a person with the help of a blade and so the possibility of its being self-inflicted, may not be ruled out. None of the injuries of Suraj Bali were found to be grievous or kept under observation. 31. In injury report of Deo Muni, injury No. 1 is traumatic swelling over a small area of 4 cm x 3 cm, injury No. 2 is mere contusion, injury No. 3 again traumatic swelling over a small area over hand while injury No. 4 is only a complaint of pain without any visible injury on the thigh. Out of above injuries, injury No. 3 on non-vital part and is alleged to have been kept under observation, but there is no supplementary report of X-Ray to show its gravity. 32. Similarly in injury report of Ram Autar, the injury No. 1 is traumatic swelling over a small area, injury Nos. 2 and 3 are minor abrasions, injury No. 4 is a mere contusion while injury No. 5 is only complaint of pain with no visible injury. 33. It is pertinent to mention that only injury Nos. 1 and 2 of Suraj Bali, injury No. 1 of Deo Muni and injury No. 1 of Ram Autar are alleged to be on vital parts of body, but none of them is grievous. 33. It is pertinent to mention that only injury Nos. 1 and 2 of Suraj Bali, injury No. 1 of Deo Muni and injury No. 1 of Ram Autar are alleged to be on vital parts of body, but none of them is grievous. In fact the alleged traumatic swelling may not subsist for 5 days and had it been grievous to any extent, it could not have been left unattended for over 5 days/100 hours. All the above injuries have been mentioned to be about 5 days old and P.W.5 has stated that these injuries could have been sustained at about 1:00 p.m. on 4.4.1982. The accused have not given any reason or justification for not getting their alleged injuries treated for a long period of 5 days, what to say of getting them examined at P.H.C. Or Government Hospital. Whatever may be the nature of injuries, had the accused-appellants been sustained with any such injury, which could have caused apprehension of life in their mind and lasted for 5 days, the three injured accused, who were blessed with three more real brothers and Behnoi Shyam Lal, would certainly have firstly approached some Medical Officer for examination as well as treatment of their alleged multiple injuries at the earliest and secondly for lodging F.I.R. against the real culprits. No sane person upon having sustained multiple injuries with lathi or kanta on any vital or non-vital parts of body, may be expected to leave the injuries unattended, without examination and treatment even by a village practitioner or Jholachhap, unqualified doctor for a long period of 5 days. It may not be disputed and its judicial notice may be taken that whenever a person accidentally gets an all-pin or niddle prick or some minor cut injury with the blade or by friction during desk work or household works, he immediately rushes for some antiseptic cream/ointment, Band-aid strip or Dettol etc., the medicine available at home, even if he himself finds that the injury is so simple that it does not require a visit to doctor. Hence leaving the alleged multiple injuries of three out of six accused-persons unattended by the injured persons as well as the co-accused persons, (who are none other than their real brothers) and alleged caring Behnoi Shyam Lal, is not only strange but is next to impossible and shows that all the injuries are self-inflicted and on the basis of above injuries of simple and superficial nature, with a mala fide intention to set up a false defence even the medical reports have been obtained with a mention of their being about 5 days old. Since the injuries are not found to have been sustained in the occurrence in dispute, it does not adversely affect the prosecution case and prosecution is not obliged to explain above simple injuries of accused-appellants. 34. It is also pertinent to mention that according to the defence case, the above injuries were caused to them by deceased and Babu Lal on way from fields to Cattle Pond (Kanji house) on which fire was made by their Behnoi Shyam Lal from the house (across the boundary wall), causing death of Lalni deceased. Since from the evidence on record, the prosecution has established beyond any reasonable doubt that the incident did take place at the Charahi of deceased in the outer Courtyard at a distance of 6 steps from the house of accused-persons, the contention of accused-appellants that the occurrence took place elsewhere, on way from fields to Cattle Pond (Kanji house) has been fully falsified. This is not the case of accused-appellants that after causing injuries to above accused-appellants, the deceased and Babu Lal ran to their houses and in later part of incident, upon chasing the injuries of lathi as well as fire-arm injury were caused to deceased in his Courtyard near his Charahi as shown in site plan Ext. A-12. Accordingly the accused-appellants have failed to prove that they sustained any injuries in the occurrence in question. 35. The onus to prove that accused-appellants sustained injuries in the incident in question lies on the accused and only if the accused succeeds, the prosecution will be required to explain the injuries on the person of accused and not otherwise. A-12. Accordingly the accused-appellants have failed to prove that they sustained any injuries in the occurrence in question. 35. The onus to prove that accused-appellants sustained injuries in the incident in question lies on the accused and only if the accused succeeds, the prosecution will be required to explain the injuries on the person of accused and not otherwise. In view of discussions made above, we find that merely by mention of injuries to be 5 days old and expressing possibility of their having been sustained at 1:00 p.m., which may have variation of over 6 hours either side, the above injuries may not be presumed to have been caused by deceased and Babu Lal in the occurrence in question. 36. Despite the alleged proximaty in the time of injuries of accused as much as the occurrence in question, the accused have failed to prove nexus between the occurrence in question and the injuries allegedly sustained by accused-persons, so also the prosecution is not obliged to explain above injuries. 37. It is settled principle of law that the prosecution is not obliged to explain the simple injuries on the person of accused and it is undisputed fact that all the injuries of all the accused were simple and superficial in nature. In the case of Paras Nath Singh v. State of Bihar, 1988 SCC (Crl) 280, the Apex Court has held that “Injuries sustained by accused in same incident in which deceased died - Prosecution not invariably bound to explain the injuries on accused- Prosecution case if otherwise trustworthy and acceptable, would not be affected by its failure to explain injuries on accused. Plea of exercise of right of private defence - Burden on accused mere sustaining of injuries by accused in the same occurrence in which the deceased died not by itself conclusive proof of deceased being aggressor”. The above view was also accepted and followed by the three Judges Bench of the Apex Court in the case of Ram Sundar Yadav v. State of Bihar, 1998 (37) ACC SC. The above view was also accepted and followed by the three Judges Bench of the Apex Court in the case of Ram Sundar Yadav v. State of Bihar, 1998 (37) ACC SC. In the case of Amar Malya v. State of Tripura, AIR 2002 SC 3052 , the Apex Court has held that “Non explanation of injuries on accused persons - Can’t ipso facto be ground for throwing out prosecution case - specially when it is supported by eye-witnesses including injured eye-witness - Accused failed to explain as to why (if so) they came armed to attend the meeting”. Similarly in the case of Dharnidhar v. State of Himachal Pradesh, AIR 2002 SC 3097 , the Apex Court has held that “In murder case injuries on accused persons- suppression/non explanation by prosecution - ipso facto not fatal to prosecution case. Witness under Section 161 speaking about injuries to accused - F.I.R. by injured taking plea of private defence - not investigated though I.O. took note of fact revealed during investigation that injuries caused to accused by gun fired by deceased - Prosecution case proceeding on that line - Non investigation of case of accused have no impact. Accused plea of private defence that first deceased fired at him and then accused assaulted deceased and his son. Distance from which fired and improbability of accused causing so many injuries to deceased and his son after receiving gun shot injuries- Relies defence version. Conviction upheld.” In the case of Kiledar Singh v. State of Madhya Pradesh, 2003 ACC 219 SC, the Apex Court has held that “Prosecution not required to explain injuries on person of accused party though all injuries were simple.” In the case of Rajendra Singh v. State of Bihar, 2001 (1) A Cr R 443, the three Judge Bench of Apex Court has held that “If prosecution fails to explain minor injuries to accused, it cannot be fatal - only on failure to explain grievous injury, Court may look prosecution case with little suspicion.” 38. In view of discussions made above, we have come to the conclusion that it is not proved from the evidence on record that accused Suraj Bali, Ram Autar and Deo Muni sustained any injuries in the occurrence in question. In view of discussions made above, we have come to the conclusion that it is not proved from the evidence on record that accused Suraj Bali, Ram Autar and Deo Muni sustained any injuries in the occurrence in question. Since the alleged injuries were of simple and superficial nature, the prosecution was not obliged to explain the alleged injuries of above accused-appellants and non-explanation of above injuries does not adversely affect the prosecution case. Point No. 5 is decided accordingly. Point No. 6 39. Learned counsel for the appellants argued that since multiple injuries were caused to the accused-appellants Suraj Bali, Ram Autar and Deo Muni over their heads with lathis and kanta, an apprehension of life and grievous hurt arose in their minds, which gave them right of private defence and in exercise of their right of private defence, they wielded lathis, while their brother-in-law Shyam Lal, fired from home with the gun, hitting the deceased on vital part, resulting in his death and so no offence is made out against the accused-appellants, Istly because the fatal injury was caused to the deceased by non-accused Shyam Lal, (the brother-in-law of accused-appellants, who has also been produced as D.W.1) and IIndly because, the fatal injuries were not caused to the deceased by the accused-appellants or Deo Muni and even if were caused by them, those were caused in exercise of their right of private defence and even if they exceeded in exercising their right of private defence, they may be convicted only under Section 304 IPC and not under Section 302 IPC. 40. The above contention of appellants has no force because, it is fully proved from the evidence on record that no occurrence ever took place on way from fields to Cattle Pond (Kanji house) in the manner described by the accused-persons in their statements under Section 313 Cr.P.C. or by their witness D.W.1 Shyam Lal. Moreover the accused-appellants have failed to prove of having sustained any simple or grievous injuries in the occurrence in question or to prove any nexus between their alleged injuries and the occurrence. Moreover the accused-appellants have failed to prove of having sustained any simple or grievous injuries in the occurrence in question or to prove any nexus between their alleged injuries and the occurrence. In any case, since the deceased was not armed with any deadly weapon and none of the alleged injuries of any of the three accused-appellants Suraj Bali, Ram Autar and Deo Muni was grievous to any extent, no apprehension of life or grievous hurt could have arisen in their minds for exercising right to private defence and the alleged right could not have extended till causing death of Lalni. 41. In view of the discussions made above, we find that the accused Suraj Bali, Ram Autar and Deo Muni have failed to prove that they sustained any injuries in the occurrence in dispute or on way from fields to Cattle Pond (Kanji house) at the hands of deceased and Babu Lal and due to alleged injuries of simple and superficial nature, no apprehension of life or grievous hurt could have arisen in their minds, for exercising right of private defence so as to cause death of Lalni. The simple and superficial nature of injuries, mentioned in injury reports of three accused-appellants Suraj Bali, Ram Autar and Deo Muni since left unattended for 5 days, without even any first aid treatment or medical examination at private or Government center it indicates that all the alleged injuries were self inflicted and superficial. 42. According to prosecution version 6 accused-appellants armed with lathis made gherao of sole deceased, while according to accused-appellants, deceased and Babu Lal attacked the three accused-appellants on way from fields to Cattle Pond (Kanji house). Even as per defence version the deceased was not armed with any deadly weapon and since there were three armed persons on accused side they were in a better position to cause death or grievous hurt to deceased and Babu Lal, there could not have been any apprehension of life or grievous hurt in their minds for exercising right of private defence and to cause death of Lalni, who was in fact all alone, not accompanying with Babu Lal. It is also noteworthy that out of 14 injuries on the person of deceased except injury Nos. It is also noteworthy that out of 14 injuries on the person of deceased except injury Nos. 1, 3 and 4, which were fire-arm injuries, rest 11 injuries were of lathis, undisputedly caused by accused-appellants while no injury is alleged to have been caused by accused-appellants to Babu Lal, which is quite unnatural and shows that he was not at all present, there with Lalni deceased. 43. The above facts clearly indicates that there was no apprehension of life or of grievous hurt in the minds of any of the accused-appellants Suraj Bali, Ram Autar and Deo Muni from deceased or Babu Lal. There is no whisper by the accused-appellants in there statements under Section 313 Cr.P.C. or in the statement on oath of D.W. 1 Shyam Lal that above accused-appellants Suraj Bali, Ram Autar, Deo Muni on being attacked on way to Cattle Pond (Kanji house) raised any alarm or called Shyam Lal for their rescue, so there could have been no occasion to Shyam Lal for making fire with the gun across the boundary wall of house and Courtyard of accused-appellants from where the alleged place, on way from fields to Cattle Pond (Kanji house), where deceased and Babu Lal allegedly attacked the three accused-appellants, may not be visible. Otherwise also since all the three accused-appellants Suraj Bali, Ram Autar and Deo Muni were admittedly armed with lathis and caused as many as 11 lathi injuries to deceased, as against the alleged simple, superficial and self inflicted injuries of accused-appellants. 44. In the circumstances, the alleged right of private defence which if at all arose, ceased to exist and could not have been exercised beyond the reasonable limits after inflicting more harm than necessary to be inflicted for the purpose of defence and the death of Lalni with multiple lathi injuries and the gun shot injuries caused by Deo Muni may not be considered to have been committed in exercise of right of private defence. 45. 45. It is pertinent to mention that the trial Court has rightly held that the presence of Shyam Lal at the house of accused-appellants on the date of occurrence has not be established by any evidence and accused Ram Lakhan, Chandra Bali and Ram Swaroop have failed to prove their plea of alibi by any reliable evidence, that on the day of occurrence, they were out of village and were respectively at villages Manipur, Simori or Khisahan as claimed by them, in their respective statements under Section 313 Cr.P.C. It is also pertinent to mention that it has not been suggested to the first informant P.W.1 or eye-witness P.W.4 that the above accused-persons were not in the village on the date of occurrence and even the defence witness D.W.1 Shyam Lal could not dare to state in his statement on oath that Ram Lakhan, Chandra Bali and Ram Swaroop had gone respectively to villages Manipur, Simori and Khisahan. The plea of alibi taken by three accused-appellants, is also in contradiction to the plea of presence of Shyam Lal at their house. The trial Court has rightly disbelieved the plea as upon coming of Shyam Lal (Behnoi) to the house of appellants for consultation in connection with marriage of his daughter, without his wife (the sister of appellants) leaving of three out of six accused-appellants at the same time is highly improbable and makes the contention false. In the case of State of Haryana v. Prabhu, 1979 (4) SCC 189 , the Apex Court has held that “though falsity of plea of alibi by itself does not prove the prosecution case but when accused fails to prove alibi, it rebound on the accused and prosecution case gets strengthened. However prosecution when fails to prove the case beyond reasonable doubt, falsity of plea of alibi is of no consequence”. 46. However prosecution when fails to prove the case beyond reasonable doubt, falsity of plea of alibi is of no consequence”. 46. In view of discussions made above, we are of the considered view that it is proved from the evidence on record that no incident of marpeet ever took place on way from fields to Cattle Pond (Kanji house) by the deceased and Babu Lal, no injuries were caused to accused-appellants Suraj Bali, Ram Autar and Deo Muni and no apprehension of life or grievous hurt ever arose in their minds for exercising alleged right of private defence and the death of Lalni was not caused by accused-appellants in exercise of their alleged right of private defence. 47. The point No. 6 is accordingly decided in negative. Point No. 7 It is settled principle of law that “in order to acquit the accused giving benefit of doubt there must be some reasonable doubt, and every suspicion on the basis of minor discrepancies, if any, or minor points raised by the accused may not be made basis to acquit the accused.” In the case of Gangadhar Behra (supra) it has been further laid down by the Apex Court that “there should be reasonable doubt for acquitting an accused and acquittal on the basis of a imaginary doubt should not be allowed.” “Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law.” “Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. Proof beyond reasonable doubt is a guideline, not a fetish." Similarly, in the case of G. Parshwanath v. State of Karnataka, 2010 (4) Crimes 41 SC, the Apex Court has held that “every suspicion is not a doubt. Only reasonable doubt gives benefit to the accused and not the doubt of a vacillating judge.” “In a case based on circumstantial evidence if the chain of circumstances is complete - it cannot be said that in absence of motive, the other proved circumstances are of no consequence.” 48. Only reasonable doubt gives benefit to the accused and not the doubt of a vacillating judge.” “In a case based on circumstantial evidence if the chain of circumstances is complete - it cannot be said that in absence of motive, the other proved circumstances are of no consequence.” 48. On the basis of discussions made above, we are of the considered view that the prosecution has proved its case and the accused are not entitled for acquittal by giving them benefit of doubt. Point No. 7 is accordingly decided in negative. Point No. 8 49. Learned counsel for the appellants has contended that the death of Lalni in the occurrence in dispute was not committed in pre-planned manner rather due to injuries caused to three accused-appellants by deceased and Babu Lal. If the accused-appellants are found to have caused death of Lalni, by exceeding their right of private defence without any intention and in good faith, the case of appellants come under Exception No. 2 of Section 300 IPC. The above arguments have no force because in view of the discussions made earlier, since no injuries were found to have been caused by deceased or Babu Lal to three accused-appellants in the occurrence in question, the case of accused-appellants does not fall in Exception No. 2 of Section 300 IPC. 50. In criminal cases there is presumption of innocence of accused, unless he is found guilty. In criminal cases the accused is not required to put any specific defence, though he comes with any specific defence or plea of alibi the onus to prove that contention lies on him. However even if the accused fails the plea/defence taken by him, the prosecution case may not be presumed to have been proved and prosecution has to prove its case beyond reasonable doubt. 51. Upon careful consideration of entire evidence on record, we find that undisputedly the accused-appellants and the first informant as well as deceased (his real brother) had a common ancestor and the grandfathers of accused appellants and of deceased and first informant, were real brothers while the father of accused appellants and P.W.-4, Ram Sajiwan @ Dhunna were real brothers. In this way the parties belong to one KHANDAN (family) and are not strangers. In this way the parties belong to one KHANDAN (family) and are not strangers. It is oftenly seen that close relatives from the common ancestor do have some hidden grudge against each other over issues relating to partition of property or some other minor issues over family disputes, however there is no whisper of any enmity of accused-appellants with deceased. There is nothing on record to show that either of the parties, the accused-appellants or deceased and first informant had any criminal background except that there was a case of petty offence under Gunda Act against first informant. It is pertinent to mention that upon returning from fields and tethering the cattle at Charahi, the deceased was sitting in a depressed mood and accused-appellants from their door at a distance of 6 steps, were abusing him for damaging Arhar crop by his cow, upon which the first informant in an attempt to set at rest or cool down the dispute called the deceased to leave the place and come inside the home to which he refused. P.W.1 has stated that eSaus yyuh ls ogk ls tkus dks dgk Fkk ysfdu yyuh ogk ls gVk ugha vkSj og Hkh xkfy;ka ysns yxkA and P.W.2 has stated that yyuh us xk; vius [kwaVs ls cka/k fn;k vkSj eu fxjkdj pjgh ij cSBk FkkA x;k Álkn vkSj /kqUuk us iwNk dh eu fxjk, D;ksa cSBs gksA rc yyuh us dgk dh gekjs tkuoj vutkus esa lwjtcyh ds [ksr esa pys x, ftl ij mUgksaus gesa xkfy;ka nh geus Hkh mUgsa xkyh nhA bl ij x;k Álkn us dgk dh rqe NksVs gks bl pdYyl dks tkus nksA yyuh [kj fnekx FkkA 52. There is nothing on record to as to show that the cattle of deceased had entered the field of appellants and damaged their Arhar crop for the first time or such an incident was repeated, but from the statements of accused-appellants under Section 313 Cr.P.C., that deceased deliberately made his cattle to enter their fields and destroy their Arhar crops, it appears that even if this was not deliberate and was only per chance, but this was repeated incident of entering of cattle of deceased in the fields of accused-appellants and damaging their crop. Even if such incidents may not have been committed deliberately, but on every incident of damage of crop of accused-appellants by the cattle of deceased, some annoyance would have inevitably taken place. Though it is not clear as to how much crop of accused appellants was damaged by the cattle of deceased on the day of occurrence but in case of repeated incident, due care was required to be taken by deceased and every time it may not be ignored by saying an act of cattle. Since there is no enmity between the parties, the possibility of planning of murder of deceased, over such a minor issue is very weak. From the evidence on record, we find that repeated incidents of damaging the Arhar crop of accused-appellants by the cattle of deceased had taken place due to carelessness of deceased, and for stopping the repetition of such incident, the accused-appellants with an object of teaching a lesson to deceased, tried to catch the cattle for handing it over to the Cattle Pond (Kanji house), but the deceased managed to bring back his cattle from the fields to his home, on which the accused-appellants feeling cheated and defeated also returned to their home and since the deceased was sitting before them on his Charahi, they continued to abuse him so that he may realise his fault and tender apology. 53. It is also proved from the evidence on record that the deceased was stubborn type of person ¼[kj fnekxk½ , who had turned down the call of his brother, first informant for coming inside the house and instead of tendering apology he also abused the accused-appellants. It appears that due to arrogancy and adamancy of deceased, the incident of abusing developed and converted into quarrel and sudden fight took place in which the accused appellants, who were armed with lathis in prosecution of their common object to teach a strict lesson to the deceased, (so that he may refrain from damaging their crop in future), without premeditation, in heat of passion, started wielding lathis, causing injuries to the deceased. Since upon hue and cry the first informant and the witnesses rushed towards the place of occurrence from their house, Courtyard and Khalihan, the accused-appellants being afraid of them, exhorted to bring the gun and finish the deceased upon which Deo Muni @ Putti brought the licensed gun of Suraj Bali from adjoining house and fired at deceased. From the above evidence on record, we find that the occurrence in question was committed without premeditation in a sudden fight in the heat of passion during sudden quarrel when the unlawful assembly of accused-appellants armed with lathis in prosecution of their common object of teaching a strict lesson to deceased firstly caused lathi injuries to deceased, but seeing that the first informant and others are arriving for the rescue of deceased, in a heat of passion and in a spur of moment before arrival of first informant and witnesses upon extortion by some accused-appellant Deo Muni @ Putti brought gun and caused gun shot injuries to deceased. 54. Learned AGA submitted that since incident in question firstly occurred at the fields and subsequently the accused-appellants forming unlawful assembly committed death of deceased after bringing the gun from home, it is clear that the occurrence in question was committed with premeditation and the unlawful assembly of accused-appellants, with an intention to cause death of Lalni, in prosecution of its common object of taking undue advantage of the situation acted in cruel manner in causing death of Lalni by causing multiple injuries to him with lathi and gun. He submitted that since death of Lalni has been caused by an unlawful assembly of accused-appellants by causing gun shot and lathi injuries, even if the occurrence took place in sudden fight, it will be deemed that the accused-appellants have taken undue advantage and acted in a cruel manner and so they are not entitled to get benefit provided under Exception No. 4 of Section 300 IPC. 55. 55. It is pertinent to mention that in the case of Bivash Chandra Debnath @ Bivash D v. State of West Bengal, 2015 (5) Scale 307 or JT 2015 (4) SC 522, where unlawful assembly of 3 appellants and 27 others allegedly committed murder of Ajit Nath, by causing as many as 7 incised wounds and number of bruises, over different parts of body and trial Court came to the conclusion that the three appellants with some others, in furtherance to common object committed murder of Ajit Nath and held all of them guilty of charge of offence punishable under Section 302 read with Section 149 IPC, the appeal was dismissed by High Court. The Apex Court relying on the case of Pulicherla Nagaraja v. State of A.P., (2006) 11 SCC 444 , reproduced its para 29, which is as under : “29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters-plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the Courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. It is for the Courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.” 56. The Apex Court paying reliance on above case, allowed the appeal and held that “considering the facts and circumstances of the case at hand, particularly, the fact that in the present case it is clear that there was a sudden fight between the appellants and the deceased and further considering that there was no premeditation on the part of appellants to commit the murder, conviction is altered from Section 302/149 IPC to Section 304 Part I/34 IPC.” 57. In view of the evidence on record and case law, we find no force in the contentions so made by learned AGA. It is not disputed that at the fields, when the cattle of deceased entered in the Arhar fields of accused-appellants, only abusing took place and no fight did take place at the fields. In view of the evidence on record and case law, we find no force in the contentions so made by learned AGA. It is not disputed that at the fields, when the cattle of deceased entered in the Arhar fields of accused-appellants, only abusing took place and no fight did take place at the fields. It is also noteworthy that even when the deceased and accused-appellants returned home, no fight was there between the parties and only abusing continued on the part of accused-appellants, insisting the deceased to realize his fault and tender apology, which was quite natural. It is proved from the evidence on record that the deceased was not attacked by the accused-appellants at fields or immediately on reaching at home. It is also clear from the statements of P.W.1 and P.W.2, that the first informant had called deceased to come back to home, but he was not amenable to his advice. The evidence on record shows that due to arrogancy and adamency of deceased and not seeking apology, the hot talks between the parties aggrevated and in a heat of passion suddenly converted into a fight, in which the accused-appellants caused multiple injuries to deceased with lathis in their hands and upon extortion by some of the accused-appellants, accused-appellant Deo Muni brought the licensed gun of accused-appellant Suraj Bali from adjoining home at 5-6 steps and fired at the deceased. 58. It is noteworthy that had the deceased gone inside the home as per advice of first informant, the matter would have subsided and the occurrence would not have taken place. It is also noteworthy that there is no whisper in F.I.R. or in statements of prosecution witnesses of fact that the accused-appellants had assembly with an intention to cause death of Lalni. 59. From above evidence on record, it may not be inferred that the death of Lalni was caused in pre-planned manner with an intention to and in prosecution of common object of unlawful assembly, rather it appears that the accused-appellants caused injuries to deceased without premeditation and intention to cause his death without taking undue advantage or by acting in cruel manner, rather the entire incident took place within few minutes at a spur of moment and when the accused-appellants found that the first informant and others are arriving for the rescue of deceased, in hurried manner they fired at deceased. It is also pertinent to mention that when the accused-appellants were hurling abuses on the deceased, accused Deo Muni was not armed with gun rather gun was brought by him upon extortion by co-accused-appellants. In absence of any case of prosecution that the accused-appellants gathered around deceased with an intention to cause his death, since, there was no repeated fire (the Medical Officer has stated that injury Nos. 1 2 and 3, may be sustained by single fire) due to mere use of fire-arm, it will not be correct to say that accused-appellants acted in pre-planned and cruel manner, by taking undue advantage. 60. In view of the fact and circumstances of the case, we find that the occurrence in question preceded by verbal altercation in beginning, suddenly converted in a fight and in heat of passion, at a spur of moment without premeditation and without taking undue advantage by the accused-appellants, death of Lalni was caused due to injuries sustained to him. 61. Considering the factual background, it will be appropriate to convict the accused-appellants under Section 304 Part-I read with Section 149 IPC instead of Section 302 read with Section 149 IPC, which would meet the ends of justice. Point No. 8 is decided accordingly. 62. In view of the discussions made above, we are of the considered view that the impugned judgment and order is liable to be confirmed as far as conviction and sentence under Section 147 and 148 IPC is concerned and is liable to be set aside and modified as far as the conviction and sentence under Section 302 read with Section 149 IPC is concerned and instead of holding accused-appellants guilty of offence punishable under Section 302 read with Section 149 IPC, they are held guilty of offence under Section 304 part I read with Section 149 IPC. The conviction is liable to be altered and modified and the appeal is liable to be allowed partly. 63. Accordingly the appeal filed by appellants is partly allowed and partly dismissed. The conviction and sentence of appellants under Sections 147 and 148 IPC is affirmed and setting aside their conviction under Section 302 read with Section 149 IPC, the order is modified. 63. Accordingly the appeal filed by appellants is partly allowed and partly dismissed. The conviction and sentence of appellants under Sections 147 and 148 IPC is affirmed and setting aside their conviction under Section 302 read with Section 149 IPC, the order is modified. The accused-appellants are held guilty and are convicted for offence punishable under Section 304 Part I IPC read with Section 149 IPC and setting aside the sentence of life imprisonment under Section 302/149 IPC, each of the appellants is sentenced with 10 years rigorous imprisonment and Rs. 5000/- fine and in case of default of payment of fine within two months, to undergo simple imprisonment for an additional period of two months. All the sentences shall run concurrently. The period of sentence already undergone by them shall be set off from the sentence awarded by this Court. 64. All the interim orders, including order granting bail to appellants or staying operation of impugned order of conviction, if any or otherwise stand discharged. 65. The appellants were on bail pending appeal. Their personal bonds and surety bonds are cancelled and sureties are discharged. The surviving accused-appellants are directed to surrender before the trial Court forthwith to serve out of remaining term of sentence and deposit the fine imposed upon them. If they fail to surrender as directed, the trial Court shall take necessary coercive action against them for ascertaining compliance of order of conviction and sentence. 66. Let the lower Court record be transmitted to Court below forthwith alongwith a copy of judgment, with a direction that it shall take immediate steps for arrest of appellants for serving the remaining term of sentence. ——————