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2017 DIGILAW 2845 (ALL)

DAMODAR v. STATE OF U. P.

2017-12-06

RAJUL BHARGAVA

body2017
JUDGMENT : Rajul Bhargava, J. 1. Heard Sri Dinesh Kumar, Lalit Kumar Shukla, learned counsels for the appellants and Sri S.S. Rathor, learned AGA for the State. 2. The present appeal arises out against the judgment and order dated 30.8.1980 passed by IInd Additional Sessions Judge, Mathura, in Sessions Trial No.41 of 1980 convicting the appellants Damoder and Mahendra under Section 148 IPC and sentencing them to one year rigorous imprisonment, under Section 307 read with section 149 IPC, sentencing them to three years rigorous imprisonment under Section 325/149 IPC, sentencing them to two years rigorous imprisonment under Section 324/149 IPC, sentencing them to one year rigorous imprisonment and under Section 323/149 IPC and convicting the appellants Soran, Shivram and Laxman under Section 147 IPC and sentencing them to nine months rigorous imprisonment, under Section 307/149 IPC sentencing them to three years rigorous imprisonment, under Section 325/149 IPC sentencing them to two years rigorous imprisonment, under Section 324/149 IPC sentencing them to one year Rl, and under Section 323/149 IPC sentencing them to three months rigorous imprisonment, all the sentences of all the appellants to run concurrently. 3. During pendency of the appeal appellants Laxman died. Based on the report of Chief Judicial Magistrate, Mathura on 6.9.2017 after due verification the appeal against him stood abated. The surviving appellants are appellant no.1-Damodar, appellant no.2-Mahendra, appellant no.3-Soran and appellant no.4-Shivram. 4. The prosecution version is contained in the first information report lodged by P.W.1 Nittar on 1.7.1979 at 11 P.M. at Police Station Barsana District Mathura regarding an alleged incident which is said to have taken place on 1.7.1979 at about 9 P.M. It is stated that when the first informant along with his brother Ramso were returning home after taking bath in pond (Pokhar) and while they were passing by the path way and reached just near the Chabutra of the accused, appellants-accused Damodar with Pharsa, Mahendra, Ram Singh, Shiv Ram and Luxman armed with Lathis were sitting at the Chabutra in front of their house and the informant and his brother were surrounded by them, thereupon all the accused began to beat by the aforesaid weapons. On their raising hue and cry, nephew Pooran and brother Kishan reached there to save them but they too were beaten. It is further stated that the said incident was witnessed by Luxman, Birji, Girraj etc. After causing injuries the accused fled away. On their raising hue and cry, nephew Pooran and brother Kishan reached there to save them but they too were beaten. It is further stated that the said incident was witnessed by Luxman, Birji, Girraj etc. After causing injuries the accused fled away. He has further given out that the relations with the accused was strained from before on account of dispute with the Chabutra that both the parties were claiming and the appellant had initiated proceedings under Section 107/16 Cr.P.C. Based on the aforesaid report a formal first information report was drawn and chick report was prepared by P.W.4 Constable Prem Chand at Police Station Barsana District Mathura. 5. After registration of the case the investigation was entrusted to Sub Inspector M.R. Shukla the then Station Officer of Police Station Barsana, Mathura. After completing the investigation he submitted the charge sheet against the appellants and though one Ram Singh was also nominated in the first information report by P.W.1 but since he died in the same incident regarding which a cross case has also been registered from the side of defence. No charge sheet was submitted against him. 6. After investigation the charge sheet was submitted under Sections 147, 148, 307/149 IPC etc. and the case being exclusively triable by Court of Sessions after committal, appellants were tried as stated and the trial Court regarded conviction under the aforesaid sections vide impugned judgment and order. 7. In support of the prosecution as many as seven witnesses have been examined in the trial. P.W. Nittar is the informant-injured, P.W.2 Pooran is an eye-witness-injured and P.W.3 Luxman is an independent witness examined by the prosecution in support of its case. Rest of the witnesses are formal in nature. P.W.4 Constable Prem Chand has proved registration of the first information report vide Crime no.31-A of 1979 on 1.7.1979 at 11 P.M. The said witness has also proved the General Diary of registration of cross case from the side of defence. He has also proved General Diary No.14 of Police Station Barsana, Mathura regarding the registration of cross case registered as Case Crime No.31-A of 1979 under Sections 302, 323, 147 IPC against first informant Nittar and others. The said General Diary has been proved as Exhibit Kha-1. P.W.5 Sub Inspector M.R. Shukla is the Investigating Officer of the case who after investigation submitted charge-sheet against the accused. The said General Diary has been proved as Exhibit Kha-1. P.W.5 Sub Inspector M.R. Shukla is the Investigating Officer of the case who after investigation submitted charge-sheet against the accused. He has also proved the charge-sheet submitted by him in the cross case i.e. Crime No.31-A of 1979 under Sections 302, 147, 323 IPC against P.W.1 Nittar and others. P.W.6 Dr. M.C. Gupta conducted the medical examination of injured Nittar, Kishan, Ramso and Pooran on 2.7.1979 at 1 A.M., 1.30 A.M., 2.15 A.M. and 2.40 A.M. and has proved the injuries which is as follows: "Exhibits Ka-7 to Ka-10 are the injury reports concerning Nittar, Kishan, Ramso and Pooran respectively medically examined on 2.7.1979 at or about 1 A.M., 1.30 A.M., 2.15 A.M. and 2.40 A.M. by Dr. M.C. Gupta the then Medical Officer posted at P.H.C., Barsana on being brought by C/407 Khem Singh of P.S. Parsana aforesaid. Each injury report shows that mark of identification of the injured concerned was noted therein and L.T.I. obtained. The following injuries and opinions are shown therein. Ex. Ka-7 in respect of Nittar examined at 1. A.M. on 2.7.1979: (i) Incised wound 6 c.m. X 1 c.m. X ½ c.m. on scalp in left side about 9 c.m. above the left pinna. (ii) Incised would 7 c.m. X ¾ c.m. X ½ c.m. on right side of scalp about 11 c.m. above right pinna. (iii) Contusion & swelling of 10 c.m. X 12 c.m. on right blow joint. Movement of joint restrictive. Advised X-Ray. A.P. and lateral view. (iv) Traumatic swelling on left hand about 8 c.m. X 10 c.m. size. Movement of finger joints restricted. Advised X-Ray of left hand A.P. and lateral view. (v) Bruise of 16 c.m. X 2 c.m. on back of right shoulder joint. (vi) Abrasion of 7 c.m. X ½ c.m. on left upper arm in front. Injury No. i & ii and grievous in nature caused by sharp weapon. Injury Nos. iii to vi are simple caused by blunt weapon. Duration fresh about 4-5 hrs. old. Ex. Ka-8, re. Kishan examined at 1.30 A.M. (i) Incised wound 3 c.m. X ½ c.m. X ¼ c.m. on left side of scalp about 9 c.m. above left pinna. Injury No. i & ii and grievous in nature caused by sharp weapon. Injury Nos. iii to vi are simple caused by blunt weapon. Duration fresh about 4-5 hrs. old. Ex. Ka-8, re. Kishan examined at 1.30 A.M. (i) Incised wound 3 c.m. X ½ c.m. X ¼ c.m. on left side of scalp about 9 c.m. above left pinna. (ii) Incised wound of 4½ c.m. X 1/2 c.m. X ½ c.m. on middle of scalp about 12 c.m. above the left pinna and 13 c.m. above the base of nose. (iii) Bruise of 13 c.m. X 1 c.m. size on frontal aspect of right thigh placed obliquely about 14 c.m. above the centre of potellar. Injury nos.1 & 2 grievous in nature caused by sharp weapon. Injury no.3 simple in nature. Duration fresh about 4 to 5 hrs. Injury report Ex. Ka-9 in respect of Ramso examined at 2.15 A.M. (i) Incised wound 9 c.m. X ½ c.m. X ½ c.m. placed just on left side of scalp about 13 c.m. above left pinna. (ii) Incised wound of 3 c.m. X ¼ c.m. X ¼ c.m. placed on right side of scalp about 11 c.m. above the right pinna. (iii) Bruise of 10 c.m. X 1 c.m. placed on back of left side obliquely about 5 c.m. below the inferior angle of scapula of left side. Injury nos.1 & 2 grievous in nature caused by sharp weapon. Injury no.3 simple in nature caused by blunt weapon. Duration fresh about 4 to 5 hrs. old. Injury report Ex. Ka-10 re: Pooran examined at 2.40 P.M. (i) Incised wound 4 c.m. X ½ c.m. X ½ c.m. placed on scalp of left side about 11 c.m. above the left pinna. (ii) Incised wound of ¾ c.m. X ¼ c.m. X ½ c.m. on right side of scalp about 12 c.m. above the right pinna. (iii) Lacerated wound of 2.5 c.m. X ¾ c.m. X ¼ c.m. placed on forehead on left side just 5 c.m. above the left eyebrow. (iv) Traumatic swelling about 10 c.m. X 12 c.m. on entire right shoulder joint. Movements are restricted. Advised X-ray of shoulder joint A.P. and lateral view. (v) Oval punctured wound 1.5 c.m. X 1 c.m. X 1 c.m. placed on medical aspect of left forearm about 13 c.m. above the wrist joint. (iv) Traumatic swelling about 10 c.m. X 12 c.m. on entire right shoulder joint. Movements are restricted. Advised X-ray of shoulder joint A.P. and lateral view. (v) Oval punctured wound 1.5 c.m. X 1 c.m. X 1 c.m. placed on medical aspect of left forearm about 13 c.m. above the wrist joint. (vi) Abrasion 1.5 c.m. X ¼ c.m. on posterior aspect of left upper arm about 4 c.m. above the elbow joint. (vii) Traumatic swelling on dorsum of left hand about 5 c.m. X 6 c.m. Advised X-Ray. A.P. and lateral view. Injury nos.1, 2 & 5 grievous in nature. Injury nos.3, 4, 6 & 7 are simple in nature. Injury No.1 and 2 caused by sharp weapon. Injury no.5 caused by pointed weapon. Injury no.3,4,6,7 caused by blunt weapon. Duration fresh about 4 to 5 hrs. old. Ex. Ka-11 is the copy of X-ray report regarding injured Nittar. It also bears L.T.I. of said Nittar. Contents thereof are reproduced here as under : Right elbow ? N.A.D. Hand ? Fracture II metacarpal bone. No callus." 8. P.W.7 Dr. Dinesh Kumar, Radiologist has proved X-Ray reports of Nittar as Exhibit Ka-11. After the closer of prosecution evidence statement of the accused-appellants were recorded under Section 313 Cr.P.C. In particular accused Damodar stated that before the alleged occurrence he has instituted a criminal case against the prosecution witnesses Kishan, Nittar and Ramso etc. and Harballabh son of deceased Ramso (accused son dead) and he was a witness against them. He further stated that the proceedings under Section 145 Cr.P.C. regarding Chabutra ended in their favour against Kishan and Nittar. He also stated that before the alleged occurrence Kishan and Nittar ect. had also committed theft of Peas Crop from the field of Laxman accused and the deceased Ram Singh, Harballabh were witnesses therein. He has further narrated the existing enmity between the parties which has not been referred hereto for the sake of gravity. He added that on the date of alleged occurrence Ram Singh was coming from jungle he was surrounded by Kishan, Nittar, Ramso and others and was beaten by Lathi and on account of Lathi blow by Nittar on the head of Ram Singh, he fell down and succumbed to the injuries. He added that on the date of alleged occurrence Ram Singh was coming from jungle he was surrounded by Kishan, Nittar, Ramso and others and was beaten by Lathi and on account of Lathi blow by Nittar on the head of Ram Singh, he fell down and succumbed to the injuries. Thereafter he himself Shiv Ram, Soran went to save Ram Singh and they too were beaten and then Shiv Ram and Soran acted in self defence and also used Lathis in exercise of right private defence. The appellants in defence adduced oral as well as documentary evidence. 9. D.W.1 Dr. Brahm Kumar and D.W.2 Dr. Dinesh Kumar, Radiologist respectively proved the injury reports exhibit Kha-2 to Kha-5 of injured Ram Singh, Shiv Ram and Soran. Exhibits Kha-2 to Kha-5 are proved copies of injury reports concerning Ram Singh, Damodar, Soran Singh and Shivram medically examined on 2.7.1979 by Dr. Brahmprakash, the then Medical Officer, District Hospital, Mathura at 2.40 A.M. 4.15 A.M, 4.25 A.M. and 4.35 A.M. respectively. The details of injuries found on their bodies and the opinions expressed by medical examination are reproduced as under :- Ex. Kha-2 re. Ram Singh examined at 2.40 A.M. on 2.7.1979: (i) Lacerated wound 6 c.m. X 2 c.m. X bone deep over left side head 8 c.m. above left ear. Advised X-Ray of the part. (ii) Red contusion 6 c.m. X 2 c.m. over left temporal formal region. Advised X-Ray of the part. (iii) Bleeding from left ear unconscious and in a state of shock. Injuries kept under observation, caused by blunt object. Duration fresh. Ex. Kha-3 re. Damodar dated 2.7.1979 at 4.15 A.M. (i) Lacerated wound 1 c.m. X 0.5 c.m. scalp over left side head 7 c.m. above left eye brow. (ii) Abrasion 1.5 c.m. X 0.5 c.m. over back of left forearm just below the elbow. (iii) Abrasion 0.5 c.m x 0.5 c.m. over the back of right elbow (iv) Abrasion 0.5 c.m.x 0.5 c.m. over back of right elbow. (v) Abrasion 1 c.m. X 0.5 c.m. over inner surface of Rt. Wrist. (vi) Complaint of pain over back of left thigh but not visible mark of injuries seen. All injuries simple caused by friction except no.1 but blunt object. Duration fresh. Ex. (v) Abrasion 1 c.m. X 0.5 c.m. over inner surface of Rt. Wrist. (vi) Complaint of pain over back of left thigh but not visible mark of injuries seen. All injuries simple caused by friction except no.1 but blunt object. Duration fresh. Ex. Kha-4, re; Soran examined at 4.25 A.M. (i) Lacerated wound 3 c.m. X 1 c.m. X scalp over left side head 7 c.m. above left ear. (ii) Abraded contusion red in colour 8 c.m. X 4 c.m. over the top of left shoulder. Advised X-Ray of the part. All the injuries simple except no.2 for which final opinion will be given after seeing the X-ray of the part caused by blunt object. Duration fresh. Ex. Kha-5 re; Shivram, examined at 4.35 A.M. on 2.7.1979. (i) Lacerated wound 6 c.m. X 0.5 c.m. X bone deep over right side head 10 c.m. above right ear. (ii) Red contusion 10 c.m. X 1 c.m. over back chest left side lower part. (iii) Abrasion 0.5 c.m. X 0.5 c.m. over inner surface of right little finger 2nd inter-jha region front. All injuries simple except injury no.1 for which final opinion will be given after seeing the X-ray. caused by blunt object except no.3 by friction. Duration fresh. Ex. Kha-6 is the copy of X-ray report concerning injured Soran Singh proved by the then Radiologist Dr. Dinesh Kumar, contents whereof are reproduced here as under: X-ray Lt. Shoulder A.P. 7 Lat. Fracture outer end of left clavical. No Callus. 10. It is noteworthy that the post-mortem report of Ram Singh was also filed in defence whose genuineness was admitted by the prosecution and the same was exhibited. The post-mortem was conducted on 2.7.1979 at 3.30 P.M. and the following ante-mortem injuries are noted :- "(a) Dressed and stitched wound with two stitches over left side scalp 6.5 c.m. long 9 c.m. above left year. (b) Traumatic swelling left temporal region 6 c.m. X 3.5 c.m., which fracture of both parietal bones at top of head was noted. The brain was congested and fracture of middle cranial fosca was also noted." Doctor had opined that the death was caused due to coma as a result of injuries described above. Ram Singh died in the District Hospital subsequently. 11. The defence also examined D.W.1 Ram Swaroop in support of the defence version set up at the trial. The brain was congested and fracture of middle cranial fosca was also noted." Doctor had opined that the death was caused due to coma as a result of injuries described above. Ram Singh died in the District Hospital subsequently. 11. The defence also examined D.W.1 Ram Swaroop in support of the defence version set up at the trial. Learned defence counsel has submitted that the trial Court has illegally recorded the conviction against reliable, cogent and trustworthy defence evidence on record. He has failed to appreciate that these were cross cases in which four persons received injuries from the side of prosecution and one person died and three other including appellants Damodar, Mahendra and Soran sustained grievous injuries and fractures were also found. It is further argued that admittedly there was strong enmity between the parties and several criminal cases were instituted prior to the present occurrence against the prosecution witnesses and the proceedings were also drawn with regard to the disputed chabutra in front of which the entire incident has taken place as per the case of both the parties. The first informant in the first information report has not stated a word that from their side also Lathis were wielded in the exercise of right of self defence. The other witnesses examined by prosecution have also not offered any plausible explanation for the injuries sustained by the deceased Ram Singh (accused) and three other injured though an attempt to explain has been made by making material improvements in trial. Thus, the prosecution has suppressed genesis of the incident and has not come out with clean hands, therefore, the findings of the trial Court that the accused side were aggressor is based on conjectures and surmises. 12. Per contra, learned Additional Government Advocate submitted that the trial Court after considering the entire evidence on record has rightly convicted the appellants and there is no infirmity or illegality in the impugned judgment and order. Now I proceed to deal with the evidence of the witnesses examined by prosecution. 13. P.W.1 Nittar the first informant has admitted the long standing enmity between the parties and also the dispute of Chabutra between them. He has repeated the version of first information report. However, he has stated that in self defence they also wielded Lathis and they were saved by P.W.3 Luxman and other witnesses. 13. P.W.1 Nittar the first informant has admitted the long standing enmity between the parties and also the dispute of Chabutra between them. He has repeated the version of first information report. However, he has stated that in self defence they also wielded Lathis and they were saved by P.W.3 Luxman and other witnesses. He has proved the first information report Exhibit Ka-1. He has further stated that one blow which given by accused Soran and Shiv Ram had hit the deceased Ram Singh. He has categorically denied that no one had caused any injury; "Ram Singh Ko Lathi Hamari Taraf Se Kisi Ne Nahin Mari". On being cross examined he has admitted that in the first information report he has not mentioned the fact that he and Ramso had lathis with them and in their defence they were used. He also admitted that in this occurrence accused Damodar, Soran and Shiv Ram (appellants) had also sustained injuries. He has denied to the definite suggestion given by the defence that they had assaulted Ram Singh by lathi in order to kill him and then the accused in their self defence also wielded lathis. He has further admitted that he is an accused in the cross case. 14. P.W.2 Pooran is stated to be an injured witness who has repeated the version of P.W.1 and has also stated that when he and other injured were assaulted by the accused they also exercised the right of self defence by using lathis. He has stated this fact that he had told the Investigating Officer that Ramso and Nittar had also wielded Lathis to Investigating Officer but if it is not there in his statement to Investigating Officer he cannot offer any explanation. P.W.5 the Investigating Officer has stated that the said witnesses did not state about use of Lathis in defence by Ramso and Nittar. He has also admitted that he is an accused in the cross case and were also challaned in the proceedings under Section 107/16 Cr.P.C. It is pertinent to note that P.W.3 Luxman examined by prosecution is an independent witness who is stated to have reached at the place of incident when the alleged occurrence had taken place. He has also admitted that he is an accused in the cross case and were also challaned in the proceedings under Section 107/16 Cr.P.C. It is pertinent to note that P.W.3 Luxman examined by prosecution is an independent witness who is stated to have reached at the place of incident when the alleged occurrence had taken place. He has stated that he cannot say with certainty as to who had caused injury to deceased Ram Singh and has further stated that all the six accused and four persons from the side of prosecution namely; Nittar, Ramso, Pooran and Kishan were fighting with each other. 15. As already noted above, P.W.4 Constable Prem Chand has proved the first information report lodged from both the sides. The evidence in brief of remaining formal witnesses has also been dealt with earlier therefore, I am not entering into their evidence for the sake of repetition. Now, I come to the arguments raised by the defence counsel that the approach of the trial Court is totally perverse and against the evidence on record. The trial Judge committed grave error of law by misreading the evidence on record especially of the independent witness P.W.3 Luxman who has unequivocally stated in his cross examination that when he reached at the place of occurrence near Chabutra of the appellants, fight was taking place between both the sides and the deceased Ram Singh was lying in an injured state nearby. The prosecution has not declared P.W.3 hostile and what emerges from his statement is that both sides had assaulted each other in which four persons each received injuries from both the sides and one of them (Ram Singh) died on the defence side. The Court below has committed gross illegality by discarding the testimony of P.W.3 Luxman by reading his testimony in between the lines and recording the following finding :- "This witness has, however, acknowledged in his statement that when he had reached the spot the fight was going on and as such he cannot be relied upon to state as to which party was the aggressor, I find force in this criticism; and as such the testimony of P.W.3 Luxman cannot be relied upon to determine which party was the aggressor". 16. 16. Learned defence counsel has rightly assailed the finding of the trial Judge that in view of the fact that in the first information report the first informant has not stated about a word about exercise of right of self defence of wielding Lathis. According to prosecution, P.W.1 Nittar and Ramso were came back of village after coming bath in the village Pond. He has not stated that they were also carrying Lathis with them. It may also be noted that the improvement made by P.W.2 for the first time in the Court that Ramso and Nittar has also used Lathis in defence was told by him to the Investigating Officer but P.W.5 has stated that it was not stated to him by the said witness. Therefore, in my opinion, the finding of the trial Court based on the deposition of P.W.1 and P.W.2 who were highly inimical and were also accused in the cross case which was also registered and both of them were charge-sheeted by P.W.5 is wholly unreliable, un-credit worthy and to be discarded out-rightly. It has further been argued that the trial Court committed gross miscarriage of justice by recording a finding that the first information report from the side of defence was lodged with delay and no good and sufficient explanation why the same was lodged in the morning at 7.30 A.M. on 2.7.1979 is absolutely perverse and against the record. The explanation from the defence in this behalf is evident on the record as Ram Singh deceased had sustained grievous injuries of his head on account of which scalp bones were found fractured and his condition was very precarious therefore, he was immediately take into District Hospital, Mathura and after his death the first information report from the side of defence was lodged in the morning at 7.30 A.M. which was registered as Case Crime No.31-A of 1979. It is next contended that the findings recorded by the trial Court for holding that the appellants must have been aggressor in para-22 of the judgment is based on conjectures and surmises. For ready reference, relevant part is quoted below :- "What has been concluded by me on the basis of the medical evidence on record, suggests that the accused were fully prepared, while the other party was not; and this factor leans towards the possibility that Damodar etc. must have been the aggressors. For ready reference, relevant part is quoted below :- "What has been concluded by me on the basis of the medical evidence on record, suggests that the accused were fully prepared, while the other party was not; and this factor leans towards the possibility that Damodar etc. must have been the aggressors. If the number, nature and magnitude of the injuries is compared, it is pretty clear that Nittar and others suffered more numerous as well as comparatively more serious injuries as compared to Damodar etc.; and that circumstance, too leans heavily against Damodar etc. Had Nittar etc. prepared themselves for aggression and then committed aggression, in all likelihood they would arm themselves to the teeth; and it is not unlikely that they would have also taken with them some on or more fire-arms; but it does not appear to be so. So, the circumstances suggest that Damodar etc. must be the aggressors and not Nittar etc." The aforesaid finding is also presumptive and without any basis. The law in this behalf is well settled that number and nature of the injuries can never form basis for deciding the point of aggressor and thus, the finding of the trial Court as noted above is merely an ipse dixit of the trial Judge and without any cogent reason, unsupported by any evidence on record. I may also record my displeasure on the findings recorded by the trial Court in para-32 of the judgment wherein it is recorded that "there one part of the incident, regarding which Nittar has tried to avoid responsibility of any person of his group, that is, regarding striking Lathi blows on Ram Singh but this was very natural and I am not prepared to give any importance to it because each and every person is afraid to own responsibility for causing injuries to a person who is dead. Pooran P.W.2 may not have stated specifically about use of Lathies by Nittar and Ramso in self defence, but he had clearly given out that Lathis were wielded in defence by them all. On the other hand, the trial Judge had discarded defence version by recording "I would like to point out that it was not clearly stated even by Hariballabh (informant of cross case) in his report as to who were particularly responsible for causing serious injuries to his father. On the other hand, the trial Judge had discarded defence version by recording "I would like to point out that it was not clearly stated even by Hariballabh (informant of cross case) in his report as to who were particularly responsible for causing serious injuries to his father. So, in my opinion, the only conclusion that follows, is that Ram Singh secured injuries during the incident while Nittar etc. were acting in exercise of right of private self defence." 17. After giving my anxious consideration to the entire evidence on record, I may record that the prosecution has not come up with clean hands. It has suppressed the genesis of the incident and has improved its case from stage to stage to explain the grievous injuries from the side of defence in which the accused had also received fracture of clavicle and scalp etc. yet the trial Court seemingly in order to give benefit to the accused in the cross case of murder of Ram Singh has adopted a very erroneous approach by recording the finding that the appellants were aggressors despite several inherent infirmities in the prosecution version. The trial Court committed great injustice by discarding t[he testimony of independent witness Luxman, who had come out to the truthful version without any cogent and sufficient reasons. 18. In my considered opinion, the impugned judgment and order is not sustainable in the eyes of law. The same is hereby set aside. Appeal stands allowed. Appellants need not surrender to serve out the sentence. Office is directed to communicate this order to the concerned Court.