Vijay Kumar Verma, J.

1. Challenge in this Appeal, preferred under Section 374(2) of the Code of Criminal Procedure (in short "the Cr.P.C"), is to the judgement and order dated 17.10.1984 passed by Sri R.P. Mishra, the then 3rd Additional Sessions Judge, Azamgarh in S.T. No. 78 of 1982 (State v. Mangaru and Ors.), whereby the appellants (1) Mangaru; (2) Ramjit; (3) Ram Achal; (4) Ram Bachan; and (5) Rajdev (hereinafter referred to as the accused) have been convicted and sentenced to undergo imprisonment for life under Section 302 read with Section 149 of Indian Penal Code (in short the I.P.C.) and rigorous imprisonment for five years under Section 307 read with Section 149 I.P.C. and the appellants Mangaru and Rajdev have further been convicted and sentenced to undergo rigorous imprisonment for six months under Section 147 I.P.C. and the appellants Ramjit, Ram Bachan and Ram Achal have further been convicted and sentenced to undergo rigorous imprisonment for one year under Section 148 I.P.C. All the sentences have been directed to run concurrently.

2. During the course of this appeal, the appellant Mangaru died and hence, the appeal has been abated against him vide order dated 24.09.2007.

3. The incident resulting in the death of Sukhai and causing injuries to Sabhajit and Laljit occurred on 26.12.1981 in Village Larpur Saheb Ali, situate within the limits of P.S. Didarganj, District Azamgarh. First Information Report was lodged on 26.12.1981 by Ramjit s/o Sukhai Yadav r/o Village Larpur Saheb Ali. The case of prosecution as appearing from the F.I.R. (Ext. Ka-2), in brief, is that the chak of the complainant Ramjit was situated in northern side near to the house of Mangaru s/o Munne Lal Yadav. On 26.12.1981, Sabhajit, brother of the complainant, along with one Dhodhai (P.W. 2) was harrowing his wheat field. At about 4.30 p.m., the bull of the accused Mangaru entered into another field of the complainant and started grazing and damaging the wheat crop. Sabhajit seeing the bull grazing and damaging his wheat crop, called Ramjit son of Mangaru and asked him to carry his bull. Sabhajit complained also to Ramjit that their cattle always trespass in his field and damage the grown standing crop. Thereupon, Ramjit hurling abuses to Sabhajit went inside his house and immediately thereafter the accused Mangaru and Rajdev having lathies in their hands and Ram Bachan, Ram Achal and Ramjit armed with knife, bhala and gandasi respectively came there and they all began to assault Sabhajit. When on hearing hue and cry, the complainant Ramjit, his father Sukhai and brother Laljit rushed to save Sabhajit, the accused persons assaulted Sukhai and Laljit also. Behind the complainant, his cousin brother Indrajit, witnesses Sabhajit s/o Bahadur Yadav and Sita s/o Madhar Yadav of his village and Ram Narayan Singh s/o Hub Raj Singh of village Larpur Jhokhu as well as his maternal uncle Sudarshan of village Gilwara also reached there. On being challenged by these persons the accused went away after causing injuries to Sabhajit, Laljit and Sukhai. The complainant Ramjit being sick witnessed the incident standing at some distance. Sukhai having sustained serious injuries fell down in the filed and died instantaneously. Sabhajit and Laljit also sustained serious injuries, due to which they were carried to Govt. Hospital, Phulpur for treatment. The complainant with the help of Banarsi, Jeetu, Adhin and Keesa carried the dead body of his father to P.S. Deedarganj and handed over written report (Ext. Ka-1) there, which was scribed by P.W. 4, Abhai Raj.

4. On the basis of written report (Ext. Ka-1), the then Head Moharrir, Bal Govind Tiwari prepared chik F.I.R. (Ext. Ka-2) and registered a case on 26.12.1981 at 6.30 p.m. under Sections 147, 148, 149, 323, 324, 307, 302 I.P.C. at crime No. 106/1981 against Mangaru, Ramjit, Ram Achal, Ram Bachan and Rajdev and made entry in G.D. vide Ext. Ka-3.

5. The inquest proceeding on the dead body of Sukhai was conducted on 27.12.1981 by S.I. Lat Buksh Singh (P.W. 5), who prepared inquest report (Ext. Ka-4) and connected papers (Ext. Ka-5 and Ka-6). Thereafter, the dead body in sealed condition was sent through the constable Ram Ugrah Pandit for postmortem examination, which was conducted on 28.12.1981 at 2.00 p.m. by Dr. S. N. Sinha (P.W. 7), who prepared postmortem report (Ext. Ka-15). The following ante-mortem injuries were found on the person of the deceased:

1. Incised wound 4 cm x 0.5 cm x scalp deep right side head towards (paper torn) and in-front, 8 cm behind the root of nose, vertically oblique shallower and tappared towards left.

2. Contused abrasion 4 cm x 1.2 cm front of nose upper part extending to root forehead partly left side of forehead, nasal bone fractured.

3. Abraided contusion 8 cm x 1.5 cm left side head, oblique vertical, 3 cm below inj. No. (1).

4. Incised wound 4 cm x 0.8 cm x scalp deep, left side head occipital region. Wound is deep in behind and shallower in-front, obliquely vertical.

5. Punctured wound 2 cm x 1 cm x 3 cm deep x muscle deep, back of neck, obliquely in middle. Wound is deepening towards right side neck. Margin clean cut.

6. Punctured wound 3 cm x 1 cm x chest cavity deep on left posto lateral aspect of chest, 9 cm below (sic) to left nipple. Margin clean cut from left to right upwards inwards.

7. Punctured wound 2 cm x 1 cm x Abd. cavity deep. Wound is deeper in its upper end and shallow lower end in the outer (SIC) part, top of epigastric region going from left to right, upwards, inwards.

8. Incised wound 7 cm x 1 cm x bone deep patella cut front middle of Rt. knee.

9. Abrasion 8 cm x 0.2 cm middle of back, oblique, tranverse extending from left to right.

10. Abrasion 4 cm x 0.4 cm x left side back 8 cm below injury No. (9).

In internal examination, membrances were partially conjested, pleura was punctured on left side containing 3 oz blood vide injury No. 6, left lower lobe of left lung was punctured, peritoneum was also punctured, stomach was also punctured and it contained 4.5 oz undigested rice, pulse etc. Small and large intestines were full of gases and faecal matter.

According to Dr. Sinha, the death of the deceased was caused about two days ago due to shock and haemorrhage as a result of ante mortem injuries.

6. Dr. Abdul Mohid (P.W. 6) was posted as Medical Officer in Primary Health Centre, Phulpur. He examined Sabhajit on 26.11.1981 at 7.45 p.m. and prepared injury report Ext. Ka-13, according to which, the following injuries were found on his person:

(1) 5 cm x 1 cm x upto bone incised wound on the right side of forehead including middle of right eyebrow and part of upper eyelid.

(2) 2 cm x 0.5 cm x upto bone incised wound on the right upper part of face, 4 cm lateral to injury No. 1.

(3) 3 cm x 1 cm x muscle deep incised wound on the right side of face, 1. 5 cm medial to injury No. 2.

(4) 4 cm x 0.5 cm x muscle deep incised wound on the right side of face, 1 cm below injury No. 3.

(5) 2.5 cm x 0.5 cm x muscle deep incised wound on the right side of face, adjacent to nose.

(6) 1.5 cm. x 0.5 cm punctured wound on the right lateral wall of nose, 2 cm below bridge of nose.

(7) 4 cm x 1 cm x muscle deep incised wound over the left mandible, 5 cm below and lateral to angle of mouth.

(8) 2 cm x 1 cm x 1.5 cm incised wound on the left side of neck, 3 cm below injury No. 7.

(9) 5 cm 2 x cm x bone deep incised wound on the right side of head, 9 cm above the right ear. Kept U.O. Adv. X-ray.

(10) 2 cm x 0.5 cm x scalp deep incised wound on the back of head, 15 cm lateral to left ear.

(11) 1. 5 cm x 0.5 cm x scalp deep incised wound on the back of head, 2 cm below injury No. 10.

(12) 3 cm x 0.5 cm x 1.5 cm incised wound on the back of head, 2 cm below and right to injury No. 11. Adv X-ray.

(13) 1 cm x 0.5 cm x scalp deep incised on the back of right side of head, 2 cm below injury No. 12.

(14) 2 cm x 1 cm x 1.3 cm incised wound on the back of head, 2 cm medial to injury No. 13.

(15) 7 cm x 2 cm x 2 cm incised wound on the upper part of right side of neck, 1.5 cm below the injury No. 14.

(16) 5 cm x 0.5 x skin deep incised wound on the left side of back, 8 cm posterior to shoulder joint.

(17) 2 cm x 1 cm x 2 cm incised wound on the middle of back, 10 cm medial to injury No. 16.

(18) 6 cm x 2 cm x bone deep incised wound on the right side of scapula, 12 cm posterior & medial to right shoulder joint. Adv. X-ray kept U.O.

(19) 3 cm x 1 cm x muscle deep incised wound on right scapular region, 2 cm lateral to injury No. 18.

(20) 7 cm x 2 cm x bone deep incised wound on the right scapular region, 1. 5 cm lateral to injury No. 19.

On the same day at 7.10 p.m., Dr. Abdul Mohid examined Laljit Yadav also and prepared injury report Ext. Ka-14, according to which, the following injuries were found on his person:

1. 3 cm x 1.5 cm x 1.5 cm incised wound on the right outer border of chest, 12 cm below armpit.

2. 2.5 cm x 1 cm x muscle deep incised wound on the right side of chest, 7 cm below the right nipple blood present.

3. 2 cm x 1 cm x muscle deep incised wound on the right thigh, 23 cm above the right knee joint. Blood present.

4. 3 cm x 1 cm x upto bone incised wound on the left side of back, 9 cm above and posterior to left ear.

5. 0.4 cm x 0.4 cm x scalp deep incised wound on the left side of head, 7 cm above the left ear.

6. 3 cm x 1 cm x skin deep lacerated wound on the dorsum of right foot, 3 cm below the right ankle joint.

According to Dr. Mohid, the injuries of both the injured were possible to be caused on 26.12.1981 at about 4.30 p.m.

X-ray of the injured Sabhajit was taken under the supervision of P.W. 8 Dr. S.O.P. Gupta, who prepared X-ray report Ext. Ka-16 on the basis of X-ray plate.

7. Investigation of the case was entrusted to S.I. Lat Buksh Singh (P.W. 5), who recorded the statements of the witnesses and after making spot inspection at the instance of the complainant Ramjit prepared site plan (Ext. Ka-7). Blood stained and simple earth was collected from two places in the field of occurrence and one knife was also recovered from the place, where the dead body of the Sukhai was stated to be lying in the field and fard Ext. Ka-8 and Ka-9 were prepared in this regard. Thereafter, blood stained lathi, gandasi and bhala were recovered from the well of accused Mangaru at the instance of witnesses and fard Ext. Ka-10 was prepared. After completion of the investigation, chargesheet (Ext. Ka-13) was submitted against all the five appellants-accused.

8. On the case being committed to the Court of Session for trial, charge under Section 148, 307 and 302 both read with Section 149 I.P.C. against the accused Ram Bachan, Ram Achal and Ramjit and separate charge under Section 147, 307 and 302 both read with Section 149 I.P.C. against the accused Mangaru and Rajdev were framed, to which they pleaded not guilty and claimed to be tried.

9. The prosecution in order to prove its case examined nine witnesses in all. The complainant Ramjit died during trial and hence, he could not be examined. P.W. 1, Sabhajit Yadav and P.W. 3 Laljit are injured. P.W. 2, Dhodhai is the eyewitness of the incident, who was harrowing the field along with P.W. 1 Sabhajit Yadav at the time of incident. P.W. 4, Abhai Raj is the scribe of written report Ext. Ka-1. Rest are formal witnesses, who have proved various papers as mentioned above. P.W. 9 Constable Ram Ugra Prasad was posted in P.S. Didarganj on 27.12.1981. He had carried the dead body of deceased Sukhai for postmortem examination.

10. In their statements recorded under Section 313 Cr.P.C, the accused persons denying prosecution allegations have stated that they have falsely been implicated in this case, due to enmity. The accused Mangaru has further stated that in the evening on prevailing darkness, Sukhai, Sabhajeet, Laljit, Awadhesh and Dhodhai armed with weapons came on the door of his house and began to assault his sons and they also began to commit robbery. It is further stated by this accused that his sons caused marpeet in defence and the injured on his side were also medically examined and report was also lodged from their side, but the police fabricated false case against them. Similar statement has been made by the accused-Ramjit.

11. In defence, the accused have examined D.W.I Acchaiwar Dubey, who was posted as Head Moharrir on 28.12.1981 at P.S. Kotwali, Azamgarh. He has proved copy of F.I.R. No. 1019 (Ext. Kha-3) under Section 147, 148, 323, 324 I.P.C. and copy of the G.D. No. 41 dated 28.12.1981 (Ext. Kha-4) regarding registration of the case by recognizing the handwriting and signature of the then constable clerks Chandra Bhushan Upadhyay and Ramanand. D.W. 2 Dr. S.P. Ram has proved injury reports of the accused Rajdev, Ram Bachan, Ram Achal and Ramjit, who are shown to have been examined on 26.12.1981 in Primary Health Centre Sondhi, District Jaunpur.

12. The learned Trial Court believing prosecution evidence and discarding defence version of private defence, convicted and sentenced the appellants-accused as mentioned in para (1) above. Hence, this appeal.

13. We have heard Sri Harish Chandra Tiwari, learned Counsel for the appellants, Shri B. N. Singh for the complainant and Sri R. K. Singh, learned A.G.A. for the State and perused the impugned judgement and entire evidence on record carefully.

14. Regarding the incident, which occurred on 26.12.1981 at about 4.30 p.m. in the field of complainant Ramjit, prosecution has examined injured Sabhajit Yadav and Laljit as P.W. 1 and P.W. 3 respectively in addition to the independent eyewitness Dhoodhai (P.W.2). On the basis of the testimony of these witnesses, the learned Trial Court has convicted and sentenced the appellants-accused as mentioned above. After going through the statements of these witnesses carefully, we are of the considered view that the learned Trial Court has not committed any illegality in placing reliance on the testimony of these witnesses. P.W. 1, Sabhajit Yadav has stated in his statement that on 26.12.1981, he along with one Dhodhai was harrowing his field, in which wheat was sown. It is further stated by this witness that at about 4.30 p.m., the bull of Mangaru entered in his southern field and began to cause damage to the grown-up wheat crop, on which he called Ramjit and asked him to tie his bull and also complained to Ramjit that their cattle always cause damage to the grown standing crop in his field.

15. It is further stated by P.W. 1 Sabhajit that Ramjit began to hurl abuses to him and he went inside his house, but shortly thereafter, the accused Ramjit, Ram Achal and Ram Bachan armed with gandasa, ballam and knife respectively and accused Rajdev and Mangaru having lathies came in his chak and began to cause marpit with him. Sabhajit has further stated that he and Dhodhai raised noise, and when on hearing their noise, his father Sukhai and brother Laljit rushed to save him, they were also assaulted by the accused persons. It is further stated by this witness that being suffering from T.B. disease, his brother Ramjit was witnessing the incident from some distance and raising noise. It is also stated by P.W.1, Sabhajit that on hearing hue and cry, his maternal uncle Sudarshan and witnesses Sabhajit s/o Bahadur, Sita and Indrajit as well as Ram Narayan Singh reached there on the place of incident and intervened. It is further stated by this witness that due to the injuries sustained in the incident, he and his father fell down in the field and Laljit also sustained serious injuries and as a result of the injuries caused by the accused persons, his father died instantaneously in the field. It is also stated by P.W. 1, Sabhajit that he, his father Sukhai and brother Laljit also defended themselves by lathies.

16. The statement made by P.W. 1, Sabhajit Yadav has been corroborated by the injured Laljit (P.W.3), who has made similar statement. He also has specified the weapons, which the accused persons were carrying at the time of incident. P.W. 2, Dhodhai is the eyewitness of the incident, who was harrowing the field of complainant at the fateful time along with Sabhajit (P.W.1). He also has corroborated the statement of Sabhajit Yadav. It is specifically stated by the witness Dhodhai that this marpit had taken place in the chak of Sabhajit, in which Sabhajit, Laljit and Sukhai had sustained injuries, due to which Sukhai had died instantaneously. He also specified the weapons, which were being carried by the accused persons. It is further stated by the witness Dhodhai that knife had fallen in the field and at the time of fleeing away from the place of incident, the accused persons had thrown their weapons in the well. This witness had accompanied the injured to hospital.

17. Lengthy cross examination has been made from the witnesses Sabhajit, Dhodhai and Laljit, but nothing material could be elicited from them in their cross-examination. There is no contradiction worth mentioning in the testimony of these witnesses and they could not be shaken on any material point. There is no reason to disbelieve the testimony of these witnesses and on the basis of their testimony, it is fully proved beyond reasonable doubt that on 26.12.1981 at about 4.30 p.m., the accused Mangaru, Ramjit, Ram Bachan, Ram Achal and Rajdev had caused marpit with Sabhajit, Sukhai and Laljit in their chak and due to the injuries sustained in that incident, Sukhai had died instantaneously and Sabhajit as well as Laljit had sustained serious injuries, who had to be directly shifted to Primary Health Centre, Phulpur, where they were medically examined and then referred to District Hospital, Azamgarh.

18. The oral evidence of these witnesses finds corroboration from the medical evidence. Postmortem examination on the dead body of Sukhai was conducted on 28.12.1981 at 2.00 p.m. by Dr. S.N. Sinha, P.W. 7. Ante-mortem injuries, which were found on the person of deceased have been reproduced above. According to Dr. Sinha, these injuries are possible to be caused by Bhala, Gandasi and friction. Dr. Sinha has also opined that the death of the deceased was possible to be caused on 26.12.1981 at about 4.30 p.m. According to Dr. Sinha, the cause of death was shock and haemorrhage as a result of ante-mortem injuries. We have also mentioned above the injuries, which were found on the person of injured Sabhajit and Laljit, who were medically examined on 26.12.1981 in Primary Health Centre, Phulpur by Dr. Abdul Mohid, P.W. 6, who has proved their injuries and injury reports Ext. Ka-13 and Ext. Ka-14. As many as twenty incised wounds were found on the person of injured Sabhajit, who was examined at 7.45 p.m. on 26.12.1981. According to Dr. Mohid, injuries of Sabhajit were possible to be caused by some sharp edged weapon like gandasa, knife and bhala on 26.12.1981 at about 4.30 p.m. On the person of injured Laljit Yadav, who was examined at 7.10 p.m. on 26.12.1981, five incised wounds were found, which according to Dr. Mohid were possible to be caused by some sharp edged weapon at about 4.30 p.m. on that very day and injury No. 6, which was lacerated wound was possible to be caused by some blunt object like lathi. In this way, the injury reports of the injured Sabhajit and Laljit as well as the post mortem report of the deceased Sukhai are corroborating the statements of witnesses Sabhajit, Dhodhai and Laljit. Therefore, in our considered view, the learned Trial Court has rightly convicted the appellants-accused on the basis of the evidence led by the prosecution.

19. Now we come to defence version. The main contention of the learned Counsel for the appellants was that no offence is made out against the accused in this case, as they had caused injuries to the deceased and injured Sabhajit and Laljit in exercise of the right of private defence of their property and person. In this regard, it was also submitted by learned Counsel for the appellants that the prosecution has not furnished proper explanation of the injuries, which the accused Rajdev, Ram Bachan, Ram Achal and Ramjit had sustained and hence, on this ground also, the case of the prosecution becomes doubtful. The submission made by learned Counsel for the appellants was that if the accused or some other person on their side sustain injuries in any case, then the prosecution is under obligation to offer explanation about the injuries sustained by the accused or on their side by some other person and since in instant case, the accused Rajdev, Ram Bachan, Ram Achal and Ramjit also had sustained injuries, but proper explanation of their injuries has not been furnished by the prosecution, hence, the case setup by the accused in their F.I.R.(Ext. Kha-3), should be accepted as true. In support of these contentions, Sri Harish Chandra Tiwari, learned Counsel for the appellants has placed reliance on the following cases:

1. Nagarathinam and Ors. v. State AIR 2006 SCW 1916.

2. Shriram v. State of M.P. 2004 (Cri) SCC 1453.

3. Dattu Shamrao Valake and Anr. v. State of Maharashtra AIR 2005 SCW 2262.

4. Moti Singh v. State of Maharashtra (44) 2002 ACC 631).

5. Laxman Singh v. Poonam Singh and Ors. 2004 (Cri) SCC 1514.

6. State of Haryana v. Chandvir and Ors. 1996 (Cri) SCC 728.

7. Kashi Rai and Ors. v. State of Bihar (31) 1994 ACC 44 (S.C.).

20. The learned A.G.A. on the other hand submitted that the accused did not sustain any injury in the incident, which occurred on 26.12.1981 at about 4.30 p.m. in the chak of complainant and by procuring fabricated injury reports, false case of exercise of right of private defence by the accused has been set-up. It was further submitted by learned A.G.A. that the accused have not examined any witness to show that any incident had occurred in their house as alleged by them in their F.I.R. Ext. Kha-3 and merely, on the basis of this F.I.R, it cannot be said that the deceased Sukhai and other persons nominated therein had entered into the house of accused with a view to commit robbery as alleged in the said F.I.R. and injuries to the deceased and injured Sabhajit/Laljit were caused by the accused in exercise of the right of private defence.

21. Having given our thoughtful consideration to the rival submissions made by the learned Counsel for the parties and after going through the evidence on record, we are of the considered view that the story set-up by the accused about the exercise of the right of private defence of their person and property is totally false and no benefit can be extended to the appellants on the basis of the F.I.R. (Ext. Kha-3) lodged from their side on 28.12.1981 at P.S. Kotwali, Azamgarh. In our opinion, the injury reports, which have been got proved by the accused from D.W. 2, Dr. S.P. Ram are also not helpful in proving the defence version. The F.I.R. from the side of accused was registered at P.S. Kotwali, Azamgarh on 28.12.1981 on the basis of the application, which was given by the appellant Mangaru Yadav to S.P. Azamgarh. D.W. 1 Acchaiwar Dubey has proved F.I.R. No. 1019 Ext. Kha-3 by recognizing the handwriting and signature of its scribe Chandra Bhushan Upadhyay, the then constable clerk of P.S. Kotwali, Azamgarh. On the basis of this F.I.R., a case under Section 147, 148, 323, 324, 307 I.P.C. was registered on 28.12.1981 at 5.30 p.m. against Sukhai, Sabhajit, Laljit, Awadhesh and Dhodhai as well as 2-3 unknown persons. According to this F.I.R. incident of marpit is said to have occurred in the house of Mangaru on 26.12.1981 after 2-3 hours of sunset. It has come in the impugned judgement that sun had set at 5.10 p.m. on 26.12.1981.

22. Thus, according to the F.I.R. Ext. Kha-3, the incident of alleged marpit in the house of accused Mangaru Yadav appeared to have taken place in between about 7-8 p.m. on that day. It is alleged in that F.I.R. that when Mangaru Yadav and his son Ram Bachan were taking their dinner inside their house, on prevailing darkness after 2-3 hours from sunset on 26.12.1981, on hearing the shrieks of Rajdev, they came out of their house and saw that 7-8 persons having gandasi, bhala and lathi were assaulting Rajdev and when Ram Bachan rushed to save Rajdev, those persons began to assault Ram Bachan also and when on hearing the noise, Ram Achal and Ramjit came there, the miscreants began to cause marpit with them also by means of danda, gandasi and ballam. It is further alleged in this F.I.R. that when the miscreants began to flee away, they recognized Sukhai, Ramjit and Laljit both sons of Sukhai, Awadhesh son of Surya Pal and Dhodhai s/o Ram Lal of their village and two or three unknown persons were seen and recognized in lantern and torch light. Four persons namely Rajdev, Ram Bachan, Ram Achal and Ramjit are said to have sustained injuries on the side of accused persons in the aforesaid incident. Medical examination of the accused Rajdev was conducted on 26.12.1981 at 8.00 p.m. at Primary Health Centre, Sondhi, District Jaunpur by D.W. 2, Dr. S.P. Ram. The injured Ram Bachan, Ram Achal and Ramjit also were medically examined by D.W. 2 thereafter. When the occurrence itself in the house of Mangaru Yadav took place in between 7-8 p.m. on 26.12.1981, then the injured accused could not have been medically examined on that day between 8-9 p.m. in Primary Health Centre, Sondhi, District Jaunpur. It has come in the impugned judgement in para 16 that the distance of Primary Health Centre, Sondhi from the place of occurrence is about 10-11 kms. After sustaining injuries in the alleged incident on 26.12.1981 in between 7-8 p.m., the accused could not reach at 8.00 p.m. in Primary Health Centre, Sondhi for medical examination after covering a distance of about 10-11 kms. in the night. This fact clearly belies the manner of occurrence alleged by the accused in the F.I.R. (Ext. Kha-3). The accused persons belonged to District Azamgarh, but they did not prefer to go to any nearby Primary Health Centre in district Azamgarh or District Hospital, Azamgarh for the purpose of medical examination or treatment and for the reasons best known to them, they went to Primary Health Centre, Sondhi in District Jaunpur. This shows that after procuring false and fabricated injury reports from D.W. 2 Dr. S.P. Ram of Primary Health Centre, Sondhi (Jaunpur), false story of making attack by the deceased Sukhai and his companions nominated in the F.I.R. Ext. Kha-3 was concocted with a view to show that the injuries to the deceased Sukhai and injured Sabhajit and Laljit were caused in exercise of right of private defence. On the basis of reliable testimony of the witnesses Sabhajit Yadav (P.W.1), Dhodhai (P.W. 2) and Laljit (P.W. 3), it is fully proved beyond reasonable doubt that Sukhai had died at about 4.30 p.m. on 26.12.1981 due to the injuries, which were caused by the accused persons in the chak. When Sukhai had died at about 4.30 p.m. on 26.12.1981, how he could participate in the incident, which is shown to have occurred in the house of Mangaru Yadav 2-3 hours after sunset on that day. Medical examination of Laljit was conducted by Dr. Abdul Mohid P.W. 6 on 26.12.1981 at 7.10 p.m. in Primary Health Centre, Phulpur (Azamgarh). When the injured Lajit was present in Primary Health Centre, Phulpur on 26.12.1981 at about 7.10 p.m., how he could participate in the incident, which is said to have occurred in between about 7-8 p.m. i.e. 2-3 hours after sunset in the house of Mangaru Yadav on that day. In the like manner, injured Sabhajit Yadav also could not participate in that incident, because he also was present at Primary Health Centre Phulpur, where he was medically examined by Dr. Mohid at 7.45 p.m. on that day. Apparently, the injured Laljit/Sabhajit and deceased Sukhai were falsely made accused in the F.I.R. Ext. Kha-3, because due to his death at about 4.30 p.m. on 26.12.1981, the deceased Sukhai and being present in between 7-8 p.m. in Primary Health Centre Phulpur, the injured Laljit and Sabhajit could not participate in the alleged incident, which is shown to have occurred in the house of Mangaru Yadav on 26.12.1981 after 2-3 hours from sunset. On this basis, it can very well be said that the injuries to the deceased Sukhai and injured Laljit/Sabhajit were not caused in the house of accused Mangaru Yadav in the alleged incident, because as stated above, there was no possibility of their being present in the house of Mangaru Yadav in between 7-8 p.m. on that day. Therefore, having regard to all these facts, in our considered view, the appellants-accused are not entitled to get any benefit on the basis of the F.I.R. Ext. Kha-3 and their injury reports. When the deceased Sukhai and injured Sabhajit/Laljit could not participate in the alleged incident between 7-8 p.m. on 26.12.1981 for the reasons, which we have mentioned above, then question of causing injuries to them by the appellants-accused in the exercise of right to private defence of their person or property does not at all arise.

23. Although as stated here-in-above, the story of happening of the incident on 26.12.1981 after 2-3 hours from sunset in the house of Mangaru Yadav and sustaining injuries by the accused in that incident is totally falsified, but assuming for the sake of argument that some incident had taken place in the house of Mangaru Yadav at some time on 26.12.1981, in which the accused Rajdev, Ram Achal, Ram Bachan and Ramjit sustained injuries, then also, in our view, the accused are not entitled to get any benefit on this ground in this case, because as mentioned above, the deceased Sukhai and injured Sabhajit/Laljit had sustained injuries at the hands of appellants-accused at about 4.30 p.m. on that day in the incident, which took place in their chak and they did not sustain any injury at the time of alleged incident in the house of Mangaru Yadav. Hence, for all these reasons, benefit of right of private defence cannot be extended to the appellants-accused.

24. So far as the question of furnishing explanation of the injuries of accused persons by the prosecution is concerned, having regards to the facts and evidence of this case, in our considered view, the prosecution was not obliged to offer any explanation of the injuries of these accused, because these accused did not sustain injuries in the incident, which had taken place at about 4.30 p.m. on 26.12.1981 in the chak of complainant. The obligation to offer explanation about the injuries of accused by the prosecution arises only when it is shown that the accused or some other person on their side had sustained injuries in the same incident, in which injuries were sustained by the deceased or injured on the side of prosecution. If after causing injuries to the deceased or injured on the side of prosecution, the accused or some other person on their side sustain injuries thereafter in some other incident, then in such case, in our considered view, the prosecution is not obliged to offer any explanation of their injuries. In instant case also, the appellants-accused had caused serious injuries to the deceased Sukhai and injured Sabhajit/Laljit on 26.12.1981 at about 4.30 p.m. in their chak. If after that incident, the accused Rajdev, Ram Bachan, Ram Achal and Ramjit were also beaten by some persons in their house on that day after 2-3 hours from sunset as alleged in the F.I.R. (Ext. Kha-3), and they sustained injuries in such incident, then there was no obligation on the prosecution to offer explanation of their injuries. There is no law in our knowledge that if after causing incident, the accused or some other person on their side sustain injuries subsequently in some other incident, then the prosecution will furnish explanation of their injuries. Therefore, in our considered view, the case of the prosecution is not at all rendered doubtful due to non furnishing of explanation of the alleged injuries of the accused persons, which are said to have been caused to them in the house of Mangaru Yadav much after the incident, which occurred in the chak of complainant at about 4.30 p.m. on that day.

25. We have carefully gone through the afore-cited rulings on which reliance has been placed by learned Counsel for the appellants-accused. In our opinion, none of these rulings is helpful to the accused-appellants in instant case, because as we have mentioned above, neither the injuries of the deceased Sukhai and injured Sabhajit/Laljit were caused in the house of Mangaru Yadav in exercise of the right of private defence as alleged in the F.I.R. Ext. Kha-3, nor the prosecution was obliged in this case to furnish explanation of the alleged injuries on the person of accused Rajdev, Ram Achal, Ram Bachan and Ram Jit.

26. Next submission made by learned Counsel for the appellants-accused is that offence under Section 302 I.P.C. is not made out in this case, because intention to kill the deceased is lacking. It was further submitted by the counsel for appellants that even if the prosecution version is accepted to be true, the case would not travel beyond Section 304 part-II I.P.C, because the injuries to the deceased Sukhai were caused without premeditation in sudden fight attracting Exception 4 to Section 300 I.P.C.

27. The learned A.G.A. on the other hand submitted that Exception 4 to Section 300 I.P.C. is not applicable in this case, because the appellants-accused having formed unlawful assembly duly armed with deadly weapons taking undue advantage and acting in unusual manner had caused such injury to the deceased Sukhai, which in the ordinary course of nature were sufficient to cause his death thereby disentitling the appellants to get benefit of Exception 4 to Section 300 I.P.C. It was further submitted by learned A.G.A. that this case is squarely covered by Third Clause to Section 300 I.P.C. thereby attracting Section 302 I.P.C.

28. Keeping in view, the nature of injuries caused to the deceased Sukhai and having regard to the facts of the cases, we do not find any force in aforesaid submissions made by learned Counsel for the appellants. We have reproduced above, ante-mortem injuries, which were found on the person of the deceased Sukhai at the time of post-mortem examination. The post-mortem report (Ext. Ka-15) shows that as many as ten ante-mortem injuries were caused to the deceased, out of which injury No. 1, 4 and 8 were incised wounds, whereas injury No. 5, 6 and 7 were punctured wounds of different dimensions. Injury No. 3 was abraided contusion on left side head, which was 3 cm below injury No. 1. Injury No. 6 was punctured wound measuring 3 cm x 1 cm x chest cavity deep. Injury No. 4 was incised wound measuring 4 cm. X 0.8 cm x scalp deep on left side of head on occipital region. Injury No. 1 was also incised wound upto scalp deep on right side head, measuring 4 cm x .05 cm. The deceased Sukhai had died instantaneously due to shock and haemorrhage caused by ante-mortem injuries. In our considered view, the injuries caused to the deceased by the appellants-accused were sufficient in ordinary course of nature to cause death of the deceased. The appellants-accused certainly had intended to cause bodily injuries to the deceased and since his injuries were sufficient in the ordinary course of nature to cause death, hence in our opinion, the case is covered by third clause of Section 300 I.P.C., which reads thus:

300 Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

Secondly....

Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

Fourthly-....

Illustration C to Section 300 I.P.C. Is also relevant in this regard, which is as under:

(c) A intentionally gives Z a sword-cut or club wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Zs death.

29. Therefore, having regard to the injuries caused to the deceased Sukhai, the homicide in this case comes in the category of murder which is punishable under Section 302 I.P.C. It is proved beyond doubt that when the injured Sabhajit had complained to accused-Ramjit about causing damage to the crop of his fields by his cattle, he (Ramjit) went inside his house and thereafter, the appellants-accused having lathi, gandasa, bhala and knife came in the chak of the complainant and began to assault Sabhajit and when on hearing noise, Sukhai and Laljit rushed to save Sabhajit, the accused persons assaulted them also. It is also proved beyond reasonable doubt that due to the injuries caused by the appellants-accused in the chak of the complainant, the deceased Sukhai had died instantaneously. By causing incised and punctured wounds including contusion on the head and chest of the deceased, the appellants-accused taking undue advantage had acted in unusual and cruel manner. Therefore, for all these reasons, in our considered view, the appellants-accused are not entitled to get benefit of Exception 4 of Section 300 I.P.C.

30. It was further submitted by learned Counsel for the appellants that F.I.R. of this case is ante-timed and was not lodged at the time on which it is shown to have been registered. In this regard, it was submitted by learned Counsel that the papers to the Medical Officer, who had conducted the post-mortem examination on the dead body of deceased, were handed over on 28.12.1981, as is evident from challan lash Ext Ka-6 and hence, on this basis, it can very well be said that the F.I.R. was not lodged on 26.12.1981 as alleged by the prosecution. The contention of the learned Counsel for the appellants was that if the F.I.R. was lodged on 26.12.1981 at 6.30 p.m. and inquest report was prepared in the morning of 27.12.1981, then the papers ought to have been sent with the dead body on that very day, whereas the papers were handed over to the Medical Officer conducting post-motem examination on 28.12.1981 at 11.30 a.m. and since no satisfactory explanation for this delay has been furnished by the prosecution, hence, the F.I.R. will be deemed to be ante timed. It is true that as per endorsement made in challan lash Ext. Ka-6, papers were received by the medical officer conducting postmortem examination on 28.12.1981 at 11.30 a.m., but in our view, on this ground, F.I.R. cannot be said to be ante timed. P.W. 4 Abai Raj is the scribe of written report Ext. Ka-1. From his testimony, this fact is established that on getting information about the incident, he had reached the place of incident on that very day and on the basis of written report Ext. Ka-1, which he had scribed, F.I.R. was lodged on the day of occurrence. Inquest report Ext. Ka-4 was prepared with other papers by P.W. 5 S.I. Lat Buksh in the morning of 27.12.1981. Thereafter, the dead body was sent for post-mortem examination through the Constable Ram Ugrah Prasad, who has been examined as P.W. 9. He has stated that he had carried the dead body of the deceased Sukhai on 27.12.1981 and reached Police Lines, Azamgarh at 3.00 p.m., but since doctor was not available on that day, hence, he remained in Mortuary with the dead body in the night and next day handed over the papers to the doctor at about 11.30 a.m. Inquest report Ext. Ka-4 shows that copy of chik F.I.R. was sent along with other papers mentioned therein. Therefore, having regard to all these facts, it cannot be said that F.I.R. was lodged after sending the dead body for post-mortem examination as contended by learned Counsel for the appellants.

31. It was also submitted by learned Counsel for the appellants that motive as alleged by the prosecution is very weak and hence, on this ground, the defence version as contained in the F.I.R. Ext. Kha-3 should be accepted as true. We are not at all impressed with this argument. On the basis of the direct testimony of the witnesses Sabhajit, Dhodhai and Laljit, it is fully proved beyond reasonable doubt that the appellants-accused had caused injuries to Sukhai, Sabhajit and Laljit in their chak on 26.12.1981 at about 4.30 p.m. and due to the injuries sustained in that incident, Sukhai had died instantaneously. Therefore, the weakness or absence of motive looses significance in this case. Honble Apex Court in the case of Thaman Kumar v. State of Union Territory of Chandigarh reported in : 2003CriLJ3070 , has observed as under:

There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved.

32. The following observations have been made in the case of State of H.P. v. Jeet Singh reported in : 1999CriLJ2025 , by the Honble Apex Court:

No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of he mental disposition of an offender towards the person whom he offended.

Therefore, having regard to the aforesaid observations made by Honble Apex Court, no benefit on the ground of weakness of motive can be extended to the appellants-accused.

33. It was farther submitted by learned Counsel for the appellants-accused that if Sukhai had died in the field at about 4.30 p.m. as alleged by the prosecution, then his dead body ought not to have been shifted from there and since the dead body was shifted from the alleged place of occurrence, hence on this ground also, the defence version appears to be true. It was also submitted by the learned Counsel for the appellants that the deceased Sukhai had sustained injuries in the house of Mangaru Yadav at the time of making attack by him with his companions and thereafter he was carried in injured condition to his house by his companions and when he died subsequently in the night, false report was lodged in the morning on 27.02.1981 by Ramjit s/o Sukhai, which was made ante timed by the police. This submission also got no force. We have already discussed the defence version as contained in the F.I.R. Ext. Kha-3 and we have held that after procuring false and fabricated injury reports of the accused persons, false case was concocted to justify the injuries of deceased and injured Sabhajit/Laljit on the basis of exercise of right to private defence. F.I.R. Ext. Kha-3 on behalf of the appellants-accused was registered on 28.12.1981 i.e. three days after the occurrence. Written report was brought to P.S. Kotwali, Azamgarh by one Prem Chand Yadav as is evident from the statement of D.W. 1 Acchaiwar Dubey. The Advocate Sri Ram Krishna Yadav had also accompanied Prem Chand Yadav to P.S. Kotwali, Azamgarh to lodge the F.I.R. on behalf of the appellants-accused. The presence of an Advocate at the time of lodging the F.I.R. on behalf of the accused persons itself is sufficient to show that defence version was concocted by legal mind with a view to justify the injuries of the deceased and injured on the side of prosecution. P.W. 4, Abhai Raj has stated that the village people had suggested to carry the dead body to police station, although he had resisted to shift the dead body from the place of incident but village people did not pay any heed. There is no reason to disbelieve the testimony of this witness. Therefore, merely because the dead body of Sukhai was shifted from the place of incident, it cannot be inferred that injuries to him were caused by the appellants-accused in their house in exercise of right of private defence of their person and property as alleged in the F.I.R. Ext.Kha-3. We have already held that there was no possibility of taking part by the deceased Sukhai and injured Sabhajit/Laljit in the alleged incident, which is said to have occurred in the house of Mangaru Yadav after two-three hours from sunset on 26.12.1981. On the basis of the statement of P.W. 4, Abhai Raj also, this fact is established beyond doubt that when on getting information at about 4.30 p.m. on 26.12.1981 regarding the incident, which occurred with his relatives, he reached the place of incident, he found that Sukhai was lying dead there and Sabhajit was being lifted and kept on the cot by the people. The dead body of Sukhai was carried to P.S. Deedarganj by the complainant Ramjit with the help of other persons and P.W. 4 Abhai Raj also had accompanied them. Copy of the G.D. of registration of F.I.R. of instant case is Ext. Ka-3, in which, it is mentioned that dead body of Sukhai was brought to the police station. Therefore, on the basis of the entries of this G.D. also, the defence version of causing injuries by Sukhai to the accused persons on 26.12.1981 after 2-3 hours from sunset as alleged in the F.I.R. Ext. Kha-3 is further falsified. When the dead body of Sukhai was present at 6.30 p.m. on 26.12.1981 at P.S. Deedarganj, then how he could participate in the alleged incident, which is said to have occurred 2-3 hours after sunset on prevailing darkness in the house of Mangaru Yadav on that day. Therefore, having regard to all these facts, shifting of the dead body of the deceased Sukhai from the place of incident does not adversely affect the prosecution case.

34. No other material point worth mentioning was urged before us by the learned Counsel for the parties.

35. For the reasons mentioned here-in-above, there is no scope to make any interference in the impugned judgement, as the learned Trial Court properly appreciating the evidence on record has rightly convicted the appellants-accused of the offences with which they were charged.

36. Consequently, the appeal is dismissed. Conviction and sentence of the appellants-accused Ramjit, Ram Achal, Ram Bachan and Rajdev as recorded by the learned Trial Court is affirmed.

The appellants-accused are on bail. They shall be taken into custody by the Trial Court concerned and sent to jail to serve out the remaining sentence. On sending the appellants-accused to Jail, their personal and surety bonds will stand discharged. Compliance report by Trial Court will be submitted within two months.

The office is directed to return Trial Court record along with a copy of this judgement expeditiously for necessary action.