ORDER : Both these criminal revision petitions arise out of case and counter case filed by the parties. 2. Jaridih PS Case No. 83 of 1983 was lodged by Mangal Mishra. The judgment of conviction under sections 147, 148, 323, 324 and 337 read with section 34 of the Indian Penal Code against thirteen accused passed in G.R. Case No. 940 of 1983 arising out of Jaridih PS Case No. 83 of 1983 has been set-aside by the learned appellate Court in Criminal Appeal No. 32 of 2014. 3. Criminal Revision No. 875 of 2016 is directed against the judgment dated 30th March 2016 passed in Criminal Appeal No. 32 of 2014. 4. Jaridih PS Case No. 84 of 1983 was lodged on the basis of the written report of Om Prakash Barnwal on the allegation of assault by several persons, who formed an unlawful assembly and committed maarpit. The judgment of conviction under sections 148, 323 and 337 of the Indian Penal Code against eleven accused passed in G.R. Case No. 941 of 1983 has been set-aside by a common judgment dated 22nd December 2015 passed in Criminal Appeal Nos. 33 of 2014, 34 of 2014 and 35 of 2014. 5. Against the judgment dated 22nd December 2015, Criminal Revision No. 198 of 2016 has been filed by the informant. 6. The trial in G.R. Case No. 940 of 1983 commenced in the Court of Sub-Divisional Judicial Magistrate, Bermo at Tenughat. In the same Court, trial in G.R. Case No. 941 of 1983 continued simultaneously and by two separate judgments on the same day dated 25th February 2014 the accused were convicted. At the appellate stage also, the aforesaid criminal appeals were heard by the learned Additional Sessions Judge-II, FTC separately, by the same Judge and judgment in Criminal Appeal No. 33 of 2014 was delivered on 22nd December 2015 and in Criminal Appeal No. 32 of 2014 on 30th March 2016. 7. It is contended on behalf of the petitioners in both the criminal revision petitions that the occurrence stands established inasmuch as both the parties have made allegations of assault upon each other and while so conviction of the opposite parties could not have been interfered by the learned appellate Court, on the ground that the prosecution suppressed true version of the occurrence. 8. 8. In G.R. Case No. 940 of 1983 arising out of Jaridih PS Case No. 83 of 1983, fourteen witnesses were examined by the prosecution out of whom as many as ten persons claimed themselves injured witnesses. 9. In G.R. Case No. 941 of 1983 arising out of Jaridih PS Case No. 84 of 1983, four witnesses were examined and deposition of Dr. Surendra Narayan Chaudhary who was examined as PW13 in G.R. Case No. 940 of 1983 arising out of Jaridih PS Case No. 83 of 1983 was brought on record and marked as Exhibits-3 and D/1. 10. Dr. Surendra Narayan Chaudhary examined Alakhdeo Narayan, Durga Charan Barnwal, Shailendra Kumar Barnwal, Sanjay Barnwal and Om Prakash Barnwal on the same day and found various injuries on their person. 11. The trial in G.R. Case No. 940 of 1983 commenced after a decade and in G.R. Case No. 941 of 1983 after 14 years. The learned Additional Sessions Judge-II, FTC has recorded that the case diary and the relevant documents were not available on the file and only true copies of FIR and charge-sheet were kept in a plastic polythene bag. 12. The judgments by the learned appellate Court which are challenged in the present criminal revision petitions are written with reference to evidence of the witnesses and arguments raised on behalf of the parties. The learned appellate Court took note of proceeding in the Court between the parties in respect of land dispute and has referred to various provisions under the Penal Code in respect of right of private defence and came to a finding that the accused in G.R. Case No. 941 of 1983 had exercised their right of private defence. 13. The consideration by the learned appellate Court in Criminal Appeal Nos. 33 of 2014, 34 of 2014 and 35 of 2014 is in the following lines: “19. Coming back to contention raised for private defence, I find that the plea of private defence entirely is a question of fact in the circumstances of a case as to whether there has been existence of right of private defense of body or property. No one can be expected to find any particular pattern of conduct to meet a particular case. The court has to in detail and in a meticulous manner deal with the facts to ascertain whether defense taken has been proved or not. No one can be expected to find any particular pattern of conduct to meet a particular case. The court has to in detail and in a meticulous manner deal with the facts to ascertain whether defense taken has been proved or not. It is also to be borne in mind by this Court that the burden which rests on the accused to prove his defense is not of the same rigor as that of the burden on the prosecution to prove the charges against the accused persons beyond all reasonable doubt. It is enough for the accused to show, as in a civil case, the the preponderance of probabilities exists in favour of the accused. Therefore, when the plea of right of private defense is taken or not taken specifically the accused need not prove the same beyond reasonable doubt. However, the circumstances should at least probabalise the same. The courts have got responsibility to analyze the factual material produced by the prosecution and as well as the accused in order to ascertain whether there was any right of private defense in existence and it was properly exercised by the accused persons or not in order to exonerate them from the offence. The injuries sustained by the accused persons as has been detailed above itself are indicative to the facts that the appellants in fact were not the aggressors and it were informant party who beaten them mercilessly by their weapons namely hard blunt object and sharp edge substance included with acid attack. Under the circumstances in the eye of law the plea of private defence has been established in favour of the appellants.” 14. As can be seen from the aforesaid consideration by the learned appellate Court, the accused had a right of private defence but they are convicted under sections 147 and 148 of the Indian Penal Code. 15. In “State of Bihar v. Nathu Pandey” (1969) 2 SCC 207 , it has been held that the act of a group of persons in exercising right of private defence would not fall under section 141 of the Indian Penal Code. 16. In “Kashi Rai v. State of Bihar” 1994 Supp (1) SCC 551, the Hon'ble Supreme Court while expressing a similar view has observed as under: "7. 16. In “Kashi Rai v. State of Bihar” 1994 Supp (1) SCC 551, the Hon'ble Supreme Court while expressing a similar view has observed as under: "7. In such a situation though it can be held that there was an unlawful assembly to the extent of committing rioting but the common object of every member of the unlawful assembly cannot be said to commit murder. In a case of free fight of such nature, the assailants should be liable for their individual acts and it may be unsafe to convict all of them by applying Section 149 for the offence of murder. ......" 17. In the first place, conviction of an accused cannot be maintained both under sections 147 as well as 148 IPC [refer, “Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel” (2018) 7 SCC 743 ] and, therefore, conviction and sentence of the accused under section 147 and/or 148 IPC in both the cases are liable to be set aside. Secondly, in view of the law laid down in “Kashi Rai” the learned Magistrate was required to examine the individual role played by the accused in both the cases. Moreover, there is no finding by the Court below that the accused in G.R. Case No. 941 of 1983 exceeded their right of private defence. In view of the evidence of Dr. Surendra Narayan Chaudhary who examined the injured on both sides it can be reasonably inferred that the prosecution suppressed true version of the occurrence. Furthermore, the investigating officer was not examined in the trial of both the cases and the judgment of conviction was delivered without considering the effect of prejudice caused to the defence because statement of the witnesses recorded during the investigation was not available in the records. 18. For the aforesaid reasons, I am not inclined to interfere in the matter and, accordingly, Criminal Revision No. 875 of 2016 and Criminal Revision No. 198 of 2016 are dismissed. 19. I.A. No. 4831 of 2016 stands disposed of.