JUDGMENT : Pankaj Naqvi, J. 1. This criminal appeal arises out of the judgment and order dated 19.3.1986, passed by the Addl. Sessions Judge, Azamgarh in S.T. No.32 of 1984 (State vs. Tilkoo and others), convicting/sentencing the appellant under Sections 302/34 IPC to life along with other ancillary conviction/sentences. 1. The prosecution case is comprised of two parts. The first part alleged that on 30.10.1983 at about 11 AM, the deceased had an altercation with appellant no.1 - Tilkoo over boundaries of their fields. Tilkoo with animosity, left for his house and so did the deceased. Around 2.30 PM, the deceased shared the details of altercation with his son/P.W.-1 - the informant at his house. The second part alleged that at about 2.30 PM, Tilkoo armed with lathi, his son Sita Ram with a gandasa (sharp weapon) and grandson Shivchand armed with lathi came outside the house of the deceased extending life threats and went after P.W.-1 and his father, who were at the doors. P.W.-1 ran to rescue himself in the house of P.W.-2, Kuber Yadav (uncle of P.W.-1) and closed the door from inside. The deceased attempted to flee to his house but all the above 3 accused assaulted him with a gandasa and lathis. The deceased fell on account of injuries at his doors. P.W.-1/Smt. Ram Pyari (mother of P.W.-1), paternal aunt/Smt. Badhiya also came out from house to provide cover to the deceased but in the process, both mother and paternal aunt came to be inflicted with lathi and gandasa blows. The commotion attracted the arrival of P.W.-2/Kuber, Baldev and paternal cousion Patiram (both not examined) to provide shield to the victim, but they too in the process received lathi and gandasa injuries. P.W.-2, Baldev and Patiram also inflicted lathi blows at the accused in their defence. With the arrival of other villagers at the scene, including Akshaywar (P.W.-3) and Baljeet who saw the occurrence, accused ran towards their house. It was finally alleged that death of father of P.W.-1 was on account of lathi and gandasa injuries used by Tilkoo and others and that entire occurrence was witnessed by P.W.-1 from inside the house as also from the path leading to the jungle. P.W.-1 could lodge the report at 3.15 PM, same day after he could squeeze out time. 2. The written report (Ext. Ka-1) became a basis for registration of an FIR (Ext. P.W.-1 could lodge the report at 3.15 PM, same day after he could squeeze out time. 2. The written report (Ext. Ka-1) became a basis for registration of an FIR (Ext. Ka-21) as Case Crime No.304/1983, under Sections 302/307/323/324 IPC at the P.S. at a distance of 5 kms against the above 3 named accused at 3.15 PM, same day. 3. P.W.-8, the Head Constable proved the registration of the FIR at G.D. No.29 (Ext. Ka-22) on 30.10.1983 at 3.15 PM under the signatures of its author with whose handwriting he was familiar. 4. P.W.-6 was the officiating S.H.O in whose presence the FIR was registered. He recorded the statement of the informant at the P.S. itself, proceeded for the scene along with force to nab the accused from their house as the FIR itself indicated that the accused had fled to their house. He at the pointing out of the accused, recovered incriminating blood-stained gandasa and 2 blood-stained lathis from their house which accused Tilkoo claimed that the said lathi carried his blood-stains after he had received injuries on his hand, memo (Ext. Ka-6) prepared in presence of witnesses. He carried out inquest (Ext. Ka-8) which commenced at 4.50 PM to conclude at 6.15 PM. Body of the deceased was sent for autopsy along with relevant police papers. The injured Smt. Badhiya, Patiram, Baldev, Kuber and Smt. Ram Pyari @ Pyari Devi were medically examined same evening, i.e., on 30.10.1983 in police custody. Their reports are Ext. Ka-16 to 20. P.W.-5 is the radiologist who got the x-ray of the respective body parts of Ram Pyari @ Pyari Devi, Baldev and Kuber carried out in his presence but did not notice any abnormality. 5. After carrying out other investigational formalities, such as obtaining the statements of the witnesses, preparing two site plans one in respect of scene of occurrence (Ext. Ka-13) at the pointing out of the informant (P.W.-1) and the other of the scene of recovery (Ext. Ka-14), submitted a charge-sheet under Section 302/201/323/324 IPC (Ext. Ka-15) against the above 3 accused. 6. The case being exclusively triable by the Sessions, committed to the Sessions, charges framed against all the accused under Sections 302/34, 323/34 and 324/34 IPC. The accused denied the charges, pleaded not guilty and claimed to be tried. 7. Ka-14), submitted a charge-sheet under Section 302/201/323/324 IPC (Ext. Ka-15) against the above 3 accused. 6. The case being exclusively triable by the Sessions, committed to the Sessions, charges framed against all the accused under Sections 302/34, 323/34 and 324/34 IPC. The accused denied the charges, pleaded not guilty and claimed to be tried. 7. The prosecution in order to establish its case, examined P.W.-1, 2 and 3 as eye-witnesses and rest as formal. 8. The defence alleged that while they were returning from their fields on way to their house, reached in front of the house of the deceased, it was the victim side which assaulted them with lathi, danda in which all the accused suffered injuries giving rise to an NCR No.437 dated 30.10.1983 under Sections 324/325 IPC lodged by the accused against the victim side, proved by D.W.-2. D.W.-1/the doctor proved the injuries of the accused. 9. The trial court after evaluating the evidence convicted the appellants as above. 10. During the pendency of appeal, appellant no.1 Tilkoo died, his appeal stands abated. 11. We have heard Sri Vimlendu Tripathi, the learned counsel for the appellants and Sri A.N. Mulla, the learned A.G.A. 12. Learned counsel for the appellants raised the following submissions: (i) FIR is ante-timed. (ii) Informant side is the aggressor, appellants acted in private defence after receiving injuries. (iii) The first part of the occurrence allegedly took place at 11 AM at the fields, is not established, thus there was no occasion for the appellants to be the aggressors, a case of false implication in view previous enmity. 13. The learned A.G.A. opposed the submission on the ground that FIR is not ante-timed, apart from the death of deceased, two ladies on the informant side also suffered injuries, there was a cross case registered, appellants came at the house of the deceased armed with a gandasa and lathi, thus it cannot be said that the accused appellants are not aggressors. He finally submitted that although P.W.-1 did establish first part of the occurrence but alternatively submitted that even if the same is not established, it would have no impact on the second part as both the fields and the house of accused - appellant are nearby to the house of the deceased. 14. P.W.-1 is an eye-witness/informant and the son of the deceased. 14. P.W.-1 is an eye-witness/informant and the son of the deceased. There is previous enmity between both the factions as the above 3 accused had assaulted the mother of P.W.-1 in which she sustained a fracture but they were acquitted of the charges. 15. It is well settled that enmity is a double edged weapon and the testimony of an inimical witness, cannot be rejected outrightly, same is to be considered with circumspection and caution. 16. The assault took place at 2.30 PM, at a distance of 5 kms from the police station. The FIR is alleged to have been lodged at 3.15 PM. The FIR is alleged to be ante-timed on following 4 grounds. (i) The report itself alleges that the same is being lodged after squeezing out time; (ii) P.W.-2 in para- 12 and 18 of testimony alleged that subsequent to the occurrence, he along with P.W-1 and other injured remained at the scene for almost 3 hours and only after the arrival of a police jeep, they left for the P.S. and stayed at the P.S. for almost an hour wherein no report was scribed in his presence. (iii) P.W.-1 alleged in paragraph-4 of his testimony that he scribed the report at the scene itself but it was denied by P.W.-2. P.W.-1 was also unable to explain as to by whose vehicle, he went to the P.S to lodge the report; (iv) Absence of case crime number in the inquest and interpolations in the time of lodging of the FIR as also absence of number of pages in the check report and the nakal report in the inquest. 17. We have examined the plea of ante-timed FIR and are not impressed with the same. Firstly, in so far the recital in the report lodged by P.W.-1 that the same was lodged when P.W.-1 could manage time, does not necessarily mean that there was a considerable time gap between assault and lodging of the FIR. P.W.-1 is none other than the son of the deceased who was in sheer fear, saw the entire occurrence, within 25 mintues he scribed the report and availed the services of a jeep to lodge a report at 3.15 PM. He was not cross-examined on this aspect. P.W.-1 is none other than the son of the deceased who was in sheer fear, saw the entire occurrence, within 25 mintues he scribed the report and availed the services of a jeep to lodge a report at 3.15 PM. He was not cross-examined on this aspect. In so far evidence of P.W.-2 that he along with P.W.-1 & other injured remained at the scene for almost 3 hours, after which a police jeep arrived in which all of them went to the P.S. wherein he stayed for almost an hour but was not a witness to the scribing of the report, thereafter, the injured were sent for medical examination is concerned, stands sufficiently contradicted with G.D. Entry at 3.15 PM. P.W.-1 in paragraph-23 stated that the I.O. reached the spot at about 4-5 PM which is corroborated with the testimony of the I.O. and the inquest which commenced at 4.50 PM to conclude at 6.15 PM. The inquest may not contain the particulars of the case at its top but the same finds mention at page-2 of the inquest (Ext. Ka.8) as G.D. Report No.27 at 3.15 PM on 30.10.1983 in Case Crime No.384/1983, under Sections 302/307/324/323 IPC. In so far interpolations in the inquest regarding the timing of the FIR is concerned, we find that the alleged interpolation is only in the minutes which would not affect the actual timing of the FIR. All the records indicate that the FIR was registered at 3.15 PM. We, thus, hold that FIR is not ante-timed. 18. Before analyzing the evidence as to who was an aggressor and who acted in private defence, it would be apposite to give a brief resume of the legal position as to how and on what parameters, the court is expected to take a call, which issue is no longer res integra. The Apex Court in State of Madhya Pradesh vs. Ramesh, 2005 9 SCC 705 after relying upon its previous decisions held as under:- The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea. The number of injuries is not always a safe criterion for determining who the aggressor was. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit- worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [See Lakshmi Singh v. State of Bihar, 1976 CrLJ 1736 ]. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Similar view was expressed by this Court in Biran Singh v. State of Bihar, 1975 CrLJ 44 , (See: Wassan Singh v. State of Punjab, 1996 CrLJ 878 ), Sekar alias Raja Sekharan v. State." 19. Similar view was expressed by this Court in Biran Singh v. State of Bihar, 1975 CrLJ 44 , (See: Wassan Singh v. State of Punjab, 1996 CrLJ 878 ), Sekar alias Raja Sekharan v. State." 19. Thus in order to find whether right of private defence is available or not, it is not always the number of injuries which is a determining factor but the defence has to further establish that the injuries caused to them probabilize their private defence. This plea cannot be speculative, rather the entire evidence in each case must be examined with circumspection to find out as to whether the defence has been able to probabilize its version of right of private defence on preponderance of probability. 20. Admittedly, there is a cross case, meaning thereby time and place of occurrence is admitted to both the parties. The moot point is as to who was an aggressor and who acted in defence as both factions are claiming to have acted in private defence. 21. We now proceed to answer this vexed issue on the following evidence:- (i) The deceased was sitting with P.W.-1 at Point - A in the site plan (Ext. Ka-13) near his hut. (ii) The accused armed with gandasa and lathi came from the northern side at the doors of the deceased, started assaulting the deceased. (iii) The deceased ran for his life towards his house at Point B but was chased and intercepted by all the 3 accused followed by repeated assaults, who eventually fell at his doorstep. (iv) The distance between the hut and the doorstep is 18 steps. The prosecution has already successfully established the occurrence to have taken place first near the hut and the final assault at the doorstep of the deceased. (v) The prosecution alleged that accused Sitaram was armed with gandasa and the other two with lathis. Due to injuries inflicted by gandasa and lathi father of P.W.-1 succumbed to the injuries. (vi) P.W.-4, the doctor who conducted the autopsy of the deceased, found the following injuries: 1. Incised wound 7 cm x 1.5 cm x bone deep on left side scalp 6 cm above left eyebrow. 2. Lacerated wound 3 cm x 1 cm on scalp posterior side 7 cm below posterior to injury no. 1. 3. Incised wound 5 cm x 1 cm x bone deep 3 cm below laterally to injury no. 2. Incised wound 7 cm x 1.5 cm x bone deep on left side scalp 6 cm above left eyebrow. 2. Lacerated wound 3 cm x 1 cm on scalp posterior side 7 cm below posterior to injury no. 1. 3. Incised wound 5 cm x 1 cm x bone deep 3 cm below laterally to injury no. 2. 4. Incised wound 5.5 cm x 6 cm x bone deep on right side scalp 5cm below right laterally to injury no. 1. 5. Contusion 6 cm x 2 cm on right shoulder region. 6. Contusion 4 cm x 1 cm right upper scapular region. 7. Contusion 5 cm x 2 cm on left lower scapular region. Injuries no. 1, 3 and 4 were outcome of use of a gandasa as alleged by prosecution. Nowhere the accused even attempted to explain as to how did the deceased bore incised wounds. Thus, the inevitable conclusion is that it were accused-appellants who came armed with gandasa and lathis i.e. they came well prepared for the assault. (Vii) While the assault was on the deceased, his wife Smt. Ram Pyari @ Pyari Devi and sister-in-law Smt. Badhiya Devi attempted to rescue the deceased by providing cover to him, in the process they too were assaulted by the accused-appellants. Their injury reports indicate the following injuries: Injury of Smt. Badhiya (Ext. Ka-16) 1. Contused abrasion 16cm x 3 cm over upper part of the right side of back. Opinion: Injury was simple and caused by some friction. Injuries of Smt. Pyari Devi (Ext. Ka-20) 1. Incised wound 7.5 cm x 1 cm x bone deep over about middle of the scalp. 2. Incised wound 6.5 cm x 5 cm x bone deep on the right side of the scalp 2.5 cm in front of injury no.1 and 12.5 cm above right ear. 3. Incised wound 7 cm x 5 cm x bone deep on left side of the scalp 4 cm above left ear swelling all around the wound was present in an area of 7 cm x 5 cm. Opinion: Injuries were caused by sharp-edged weapon. They were fresh in duration. The injuries of these two ladies indicate that accused were adamant to kill the deceased and in the process they did not spare even the ladies as it is not the case of defence that these ladies also attacked them. Opinion: Injuries were caused by sharp-edged weapon. They were fresh in duration. The injuries of these two ladies indicate that accused were adamant to kill the deceased and in the process they did not spare even the ladies as it is not the case of defence that these ladies also attacked them. (Viii) The evidence further indicates that during the scuffle P.W.-2, Baldev and Patiram, close relatives of the deceased also reached the scene and attempted to rescue the deceased, but in the process, they too were inflicted with the following injuries:- Injuries of P.W.-2 (Ext. Ka-19) 1. Incised wound 9cm x 2cm x bone deep over lateral aspect of the left wrist joint extending over left forearm. 2. Incised wound 1.3 cm x .3 cm x .5 cm over arteriole aspect of the proximal phalanx of the left index finger. Opinion: Injuries were caused by some sharp-edged weapon. They were fresh in duration. Injuries of Baldev (Ext. Ka-18) 1. Incised wound 6 cm x .6 cm x bone deep over about middle of the scalp, 14 cm above right ear and 13.5 cm above bridge of the nose. Opinion: Injury was caused by some blunt object. Duration was fresh. Injuries of Patiram (Ext. Ka-17) 1. Traumatic swelling 4.5cm x 3.5cm over left side of scapula, 2.5 cm above left ear. 2. Traumatic swelling 7 cm x 6.5 cm over posterior aspect of the left forearm including left elbow joint. 3. Traumatic swelling 6.5 cm x 6 cm over posterior aspect of the left forearm, 5 cm below left elbow joint. 4. Contusion 2.5 cm x 1 cm over just above the middle of the right clavicle. Abrasion 1 cm x .8 cm was found on it. Opinion: Injuries were simple and caused by some blunt objection. Duration was fresh. P.W.-7 is the doctor who proved the signatures of Dr. Suresh Singh who on the relevant date was posted as Medical Officer in the P.H.C. who examined the injured, their reports are Ext. Ka. -16 to 20. (ix) We lest not forget that it was the case in the FIR itself and the evidence also indicates that P.W.-2, Baldev and Patiram in their defence inflicted lathi blows at the accused. They (accused) also sustained injuries. The injury reports of accused Tilkoo, Shiv Chand and Sitaram are Ext. Kha-3,4 and 5 which indicates the following injuries:- Injuries of accused Tilkoo (Ext. They (accused) also sustained injuries. The injury reports of accused Tilkoo, Shiv Chand and Sitaram are Ext. Kha-3,4 and 5 which indicates the following injuries:- Injuries of accused Tilkoo (Ext. Kha-3):- 1. Lacerated wound 3 cm x 0.6 cm x scalp deep left side head 7 cm above left ear on parietal bone. 2. Lacerated wound 1.5 cm x 0.6 cm x scalp deep left side of head 7 cm in front of injury no. 1. 3. Lacerated wound 3 cm x 0.5 cm scalp deep left side head over above root of nose. 4. Abraded contusion swelling 5.5 cm x 5 cm dorsum of left hand. Test Advised - X ray. 5. Contused swelling whole right upper arm, one lacerated wound 1.5 cm x 0.3cm x upto muscle deep middle outer part of arm. Advised - X-ray. 6. Contused swelling 5 cm x 4 cm dorsum of lower side of right forearm, arm is dishaped with clavicle evidence of fracture. Lacerated wound 1cm x 0.5cm x muscle deep over lateral aspect of arm 1.5 cm above ulnar head. Duration- fresh. Caused by force and friction of some hard blunt object. Injury of accused Shiv Chand (Ext. Kha-4) 1. Lacerated wound 3.5cm x 0.5cm scalp deep right side head 12cm above right ear near midline of head. 2. Lacerated wound 2.5cm x 6cm x scalp deep left side head 10.5 cm above left ear clotted blood present. Bleeding. 3. Contused swelling 8cm x 6cm lower part of left arm just above elobw. 4. Lacerated wound 1cm x 0.2cm x muscle deep palm aspect (sic) middle of right thumb. 5. Contused swelling 7cm x 5cm with lacerated wound 2cm x 0.5cm x upto bone in front of medial aspect of middle of right leg 8cm above medial mallelous. Clotted blood present. 6. Contusion 3cm x 1cm middle of front of left thigh. Duration - fresh. Caused by force of some hard blunt objection. Injuries no. 1, 2, 3 4 & 6 are simple in nature and no. 5- advised for x-ray. Injuries of accused Sita Ram (Ext. Kha-5) 1. Lacerated wound 1.5cm x 0.7cm x scalp deep right side head 9 cm above right ear. Hair matted due to clotted blood. (near back). 2. Lacerated wound 4 cm x 1 cm x scalp deep x 1.5 cm below injury no. 1 in mid of head near back. 3. Injuries of accused Sita Ram (Ext. Kha-5) 1. Lacerated wound 1.5cm x 0.7cm x scalp deep right side head 9 cm above right ear. Hair matted due to clotted blood. (near back). 2. Lacerated wound 4 cm x 1 cm x scalp deep x 1.5 cm below injury no. 1 in mid of head near back. 3. Lacerated wound 4 cm x 1.5 cmx whole scalp deep left side head 6 cm above left ear. Clot present. Advised - x- ray 4. Abrasion 1cm x 0.5cm middle of dorsolaline aspect left forearm. Duration- Fresh. Caused by force of some hard and blunt object. Injury no.1 & 4 simple D.W.-1 proved the above reports authored by Dr. S.N. Singh. D.W.-1 was not ruling out the probability that injuries no. 3, 4, 5 & 6 of accused Shivchand could be self-inflicted. 22. We after cumulatively examining the above evidence, such as, the occurrence taking place right outside the house of the deceased; prosecution having successfully established the use of gandasa by accused Sitaram at the deceased after a chase, two females on the informant side also sustained injuries; failure of the accused to explain 3 incised injuries on the deceased and the prosecution right from the institution of the FIR was explaining the injuries of the accused, it cannot be said that the accused acted in private defence. 23. According to the prosecution, the first part of the occurrence at the fields at 11 AM was a trigger to the assault. Admittedly, there is no witness to the occurrence of the first part as the deceased is reported to have shared the details of the altercation over boundary dispute, with his son (P.W.-1) around 2 PM. There is existing previous enmity as the appellants are alleged to have assaulted the wife of the deceased in which they were acquitted. No doubt, P.W.-2 & 3 feign ignorance as to a dispute over the boundaries of the fields involving both the factions but assuming that first part remained unestablished, would not automatically mean the second part i.e. actual assault is also not established as prosecution has successfully established by direct and cogent evidence the second part of the occurrence. Thus, absence of proof of first part of the occurrence would not ipso facto dent the actual occurrence 24. We are of the view that the prosecution had established its case beyond a reasonable doubt. Thus, absence of proof of first part of the occurrence would not ipso facto dent the actual occurrence 24. We are of the view that the prosecution had established its case beyond a reasonable doubt. 25. The appeal is dismissed. Appellants no. 2 & 3 are on bail. Their bail stands cancelled. They shall forthwith surrender before the court concerned to serve out the remainder sentence. Office is directed to forthwith communicate this order to the court concerned. Compliance report be submitted to this Court within two months.