Sunil Kumar Sinha, J.This appeal is directed against the judgment dated 5.7.2007 passed in Sessions Trial No. 91/2005 by the Fourth Additional Sessions Judge, Durg. (C.G.). By the impugned judgment, the appellants have been convicted and sentenced in the following manner with a direction to run the sentences concurrently:-

The facts, briefly stated, are as under:-

2.1. Ten (10) accused persons were tried for the offences punishable u/Ss. 147, 148, 302/149 and 307/149 IPC. The allegations are that on 4.3.2005 in between 11.00-11.45 p.m., they formed an unlawful assembly, participated in rioting with deadly weapons and in furtherance of the common object of said assembly committed murder of Brijmohan Singh and attempted to the lives of Ramashray Yadav (PW-1) and Sukhari Yadav (PW-6).

2.2. Appellants- Rajendra Gupta, Suraj Gupta, Amit Gupta and Manoj Gupta (A-1 to A-4) are real brothers. Appellant- Virendra @ Pintu Gupta (A-5) is cousin of appellants 1 to 4 (A-1 to A-4). Appellants 1 to 4 (A-1 to A-4) were running a small Hotel namely- Gupta Hotel. Appellant No. 5 (A-5) was also running a Hotel namely-Mai Hotel. Both Hotels were situated near each other on J.E. Road near Power House (Bhilai), Railway Station. A Wine Bar namely-"Meghdoot Bar" was also situated near the said Hotels. Appellant No. 6- Ravi @ Tinku (A-6) and 4 acquitted accused persons (A-7 to A-10) were employees of Gupta Hotel belonging to appellants 1 to 4 (A-1 to A-4).

2.3. The case of the prosecution is that on 4.3.2005 at about 11.00-11.30 p.m., appellant- Virendra @ Pintu (A-5) had gone to purchase liquor in Meghdoot Bar. There some altercation took place between Virendra (A-5) and the workers of Meghdoot Bar. Brijmohan Singh (deceased) was looking after this Bar. He was informed about the incident. He went to Gupta Hotel for asking about the incident, there a quarrel begun between them. The allegations are that in the said quarrel, Brijmohan Singh (deceased) was assaulted by lathi, danda, hockey-stick, knife and gupti by the appellants and acquitted accused persons. Brijmohan (deceased) received multiple serious injuries. He was lying in front of Gupta Hotel. Further case of the prosecution is that when Ramashray (PW-1) and Sukhari (PW-6), two members of raid-party of Meghdoot Bar came there for rescue, they were also assaulted by the accused persons and they sustained multiple serious injuries. By that time some police personnels came there. They saw the injured persons and immediately shifted them to Sector-9 Hospital, Bhilai. Brijmohan Singh (deceased) was declared dead in the Hospital, whereas, the two injured persons were admitted for treatment.

2.4. Nirmal Kumar Yadav (PW-2) lodged First Information Report (Ex.-P/1). Inquest on the dead body of deceased- Brijmohan Singh was prepared and the dead body was sent for postmortem. The postmortem examination was conducted by Dr. S.P. Kesharwani (PW-14). He found following injuries on the dead body of the deceased:-

1. Incised wound of 13 x 1 1/2 cm x bone deep on the left portion of skull;

2. Incised wound of 5.5 x 1 1/2 cm x bone deep on the left portion of face (temperomandibular region);

3. Incised wound of 3 x 1/2 x 1 cm on the left portion of face near mouth;

4. Incised wound of 4 x 1/2 x 1/2 cm, reddish in colour, on the right portion of face;

5. Incised wound of 2 x 1/2 x 1/2 cm, reddish in colour, on the middle of left eye-brow;

6. Abrasion of 1 cm, reddish in colour, on left eye-brow;

7. 3 abrasions of 2 x 1 cm, 1 1/2 x 1 cm and 1 1/2 x 1/2 cm, reddish in colour, on the upper portion of nose;

8. Incised wound of 2 cm on the right portion of nose;

9. Linear abrasion of 8 cm, reddish in colour, on the right forearm;

10. 3 abrasions of 1 1/2 x 1 cm, 1/2 x 1 cm and 4 x 1/4 cm, reddish in colour, on the right elbow;

11. Another abrasion of 1 x 1/2 cm, reddish in colour, on the right elbow;

12. Incised wound of 10 x 3.5 cm x bone deep on middle portion of right forearm;

13. Incised wound of 7 x 3.5 cm x bone deep on the upper surface of right wrist;

14. Incised wound of 5.5 x 3 cm x bone deep on the outer surface of left forearm;

15. Incised wound of 9.5 x 3 cm x bone deep, reddish in colour, on upper portion of left forearm;

16. Incised wound of 9 x 3 cm x bone deep, reddish in colour, on left wrist;

17. Incised wound of 1/2 x 1 x 1/2 cm, reddish in colour, on the right knee;

18. 2 incised wounds of 2 x 1 x 1/2 cm and 1/2 x 1/2 x 1/2 cm on the upper portion of right thigh;

19. 2 incised wounds of 1/2 x 1/2 x 1/4 cm and 2 x 1/2 x 1/4 cm, reddish in colour, on the upper inner portion of left thigh;

20. 2 abrasions of 3 x 1/2 cm and 2.5 x 1/2 cm, reddish in colour, on the right knee;

21. Stab wound of 4.5 x 2.5 x 8 cm (deep) on the abdomen. It has penetrated in the cavity;

22. Abrasion of 11 cm, reddish in colour, on the right portion of chest;

23. Incised wound of 2.5 x 1/2 cm x bone deep on the chest in between 9th-10th ribs, &

24. Abrasion of 3 x 2 cm on the middle of the chest.

On internal examination, he found about 150 ml. of yellowish liquid in the stomach. The Autopsy Surgeon opined that all the injuries were ante-mortem. They were caused by sharp and hard & blunt objects. The cause of death was haemorrhage and shock on account of above injuries and the death was homicidal in nature. The postmortem report is Ex.-P/29.

2.5. Ramashray Yadav (PW-1) and Sukhari Yadav (PW-6) were also sent for their medical examinations. They were examined by Dr. S.K. Bhoi (PW-10). He found following injuries in their MLC examinations:-

Injured-Ramashray Yadav (PW-1):

There was stab wound of 1 cm on the left portion of the abdomen. It was a deep injury. His MLC report is Ex.-P/15. He was admitted in Surgery Ward. A surgery was performed upon him by Dr. Sumanta Mishra (PW-22). He found that the size of the above wound was 1.25 x.25 cm. The wound was deep; there was swelling on the abdomen; 250 ml clotted blood was present in abdominal cavity; there were two perforations on the small intestine. There were many tears on the small and large intestine. His Bed-head ticket is Ex.-P/43.

Injured-Sukhari Yadav (PW-6):

There were abrasions in between wrist and elbow on his right forearm; there was an incised wound of 6 cm on the left side of the nose. The incised wound was caused by hard and sharp object. Their X-ray Examinations were advised, but report could not be filed. His MLC report is Ex.-P/16.

2.6. The accused party had also lodged F.I.R. No. 273/2005 which was registered u/Ss 147, 148 & 323/149 IPC. Investigation was conducted in the said matter also and a charge-sheet was filed against the members of the complainant party, including Ramashray Yadav (PW-1) and Sukhari Yadav (PW-6). It became the subject matter of Sessions Trial No. 133/2006. Both the Sessions Trials (S.T. No. 91/2005 & S.T. No. 133/2006) were conducted as cross-cases by the same Court. Evidence were separately recorded in both the cases and both the trials were disposed of on the same day i.e. on 5.7.2007 by passing two separate judgments. Some persons of the complainant party of this case were also convicted in the cross-case. They have also filed an appeal against their conviction being Cr.A. No. 585/2007 which is also being disposed by us simultaneously by a separate judgment.

2.7. The case of the prosecution was based on eyewitness account of Ramashray Yadav (PW-1), Nirmal Kumar Yadav (PW-2), Harendra Yadav (PW-5) and Sukhari Yadav (PW-6). The learned Sessions Judge relied on the testimonies of these witnesses and convicted & sentenced the appellants (A-1 to A-6) as above. However, the 4 accused persons (A-7 to A-10) were acquitted of the charges framed against them. Hence this appeal.

2. Mr. V.C. Ottalwar, learned counsel appearing on behalf of the appellants, has argued that the eye-witnesses were not reliable, therefore, the conviction based on their testimonies cannot be sustained. Alternatively, he argued that the members of complainant party were aggressor; they had attacked over appellant- Rajendra Gupta (A-1) when he was sitting in his Hotel; Rajendra Gupta (A-1) and other appellants had assaulted the deceased exercising their right of private defence; therefore, they are entitled for acquittal. He also argued that considering the overall situation, in any case, the appellants would not be liable for punishment u/Ss 302/149 IPC and at the most, their case may be treated as one of exceeding the Right of Private Defence (RPD).

3. On the other hand, Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court.

4. We have heard counsel for the parties.

5. Ramashray Yadav (PW-1) deposed that he was a worker in liquor bhatti of one Baldev Singh Bhatia. Their office was situated in Devda House, Nehru Nagar. He was assigned with the work of checking liquor shops in Chhawni area. Meghdoot Bar is situated in Chhawni area. Meghdoot Bar belongs to Baldev Singh Bhatia. In the fateful night at about 11.30 p.m., he was coming on a Jeep from Supela-Chhawni. Sukhari Yadav (PW-6) was driving the Jeep. As soon as they reached near Jawahar Market, they heard commotion. The commotion was coming from the side of Gupta Hotel. He along with Sukhari Yadav (PW-6) went to Gupta Hotel and saw that Rajendra Gupta (A-1) and Surendra Gupta were assaulting Brijmohan Singh (deceased) by lathi and sword. Brijmohan Singh (deceased) was not a member of their raid-party. He used to look after the liquor shop of Baldev Singh Bhatia. Rajendra Gupta (A-1) was holding a lathi and Suraj Gupta (A-2) was holding a sword. Amit Gupta and Manoj Gupta (A-3 & A-4) were holding knives and Virendra and Ravi (A-5 & A-6) were holding lathi. Other persons, present were servants of Gupta Hotel and Mai Hotel. They were also holding lathi, danda, and hockey-stick. All were assaulting Brijmohan Singh (deceased) by chasing him. During his examination-in-chief, the Public Prosecutor directed him to identify the accused persons. On dock, he could identify Rajendra Gupta (A-1), Suraj Gupta (A-2), Virendra (A-5), Manoj Gupta (A-4) and Ravi (A-6). However, he could not identify the other accused persons by name and said that he knows them by face. He further deposed that when the accused persons were assaulting Brijmohan Singh (deceased), he tried to intervene. At that time Amit Gupta (A-3) had assaulted him by knife/gupti. He had received an injury on his abdomen. He told about the surgery etc performed upon him. He further deposed that Sukhari Yadav (PW-6) was also trying to save Brijmohan and was assaulted by Manoj Gupta (A-4) by khukhri. Brijmohan Singh (deceased) had fell down in front of Gupta Hotel. He had sustained multiple serious injuries. He could not tell as to why Brijmohan (deceased) had gone to Gupta Hotel. He deposed that he was admitted in the hospital for 13-14 days. After 2-3 days, he came to know that Brijmohan Singh (deceased) had died.

6. Sukhari Yadav (PW-6) also deposed in similar fashion. He deposed that in the fateful night at about 11.30-12.00 p.m., he was coming in a Jeep with Ramashray Yadav (PW-1). When they reached near power house railway station, they heard commotion towards Gupta Hotel. They stopped the Jeep and went towards Gupta Hotel and saw that the accused persons, belonging to Gupta Hotel and Mai Hotel, were assaulting Brijmohan (deceased). They were holding knife, sword and lathi. They had assaulted the deceased by said weapons. He had gone along with Ramashray Yadav (PW-1) to save Brijmohan (deceased). They were also assaulted there. He was assaulted by Manoj (A-4). Ramashray (PW-1) was assaulted by Amit (A-3). Brijmohan had fell down on account of assault. Many persons had gathered there. He was taken to Sector-9, Hospital, Bhilai. Ramashray (PW-1) and Brijmohan (deceased) were also taken to the hospital by another vehicle. He was admitted in the hospital for 4-5 days.

7. Mr. Ottalwar, referring to Paras 16, 17, 18 & 19 of the evidence of Ramashray Yadav (PW-1), has argued that there are material contradictions in the evidence of this witness from his diary statement (Ex.-D/2). We have gone through the contents of these paras. Though there are some omissions in his diary statement (Ex.-D/2), but they are not very important. These omissions are not material omissions. They do not go to the root of the matter so as to take a view that the witness was telling lie before the Court or that he could not witness the incident.

8. Mr. Ottalwar has also contended that when Ramashray (PW-1) was taken to the hospital for his medical examination, the Doctor recorded in the history as "allegedly assaulted by some people about 1/2 an hr back". He also referred to the same endorsement made by the Doctor in the MLC report of Sukhari Yadav (PW-6). According to him if they were knowing the names of the assailants, they would have stated their names before the Doctors giving all details. We do not find any force in the above argument. A Doctor while conducting medical examination of an injured, is not legally required to write the names and details of the persons who had assaulted the injured in his MLC sheet. The Doctor usually writes the history in 1-2 lines with a view to know the background of the case reported by the injured. In the instant case, both the injured (PW-1 and PW-6) have stated to the Doctor that they were assaulted by some people. We are of the view that it was sufficient information for the purpose of their medical examination which they gave before the Doctor. Looking to the very purpose of the entry required to be made in the MLC report this cannot be treated like an omission in the previous statements made by the injured persons.

9. It was also argued that the diary statements of these two injured witnesses were recorded on 3.4.2005 i.e. after one month and it was fatal to the prosecution. We gathered from the evidence on record that Ramashray (PW-1) was admitted in the hospital for about 15 days. Likewise Sukhari (PW-6) was also admitted in the hospital for 4-5 days. A surgery was performed on Ramashray (PW-1) as there were perforations in his small intestine. It is a matter of common knowledge that in such cases, even after discharged from the hospital, the patients remained on rest for a long time. Therefore, non-recording of their statements immediately alone would not be a circumstance to discredit their entire testimonies. The testimony of a witness has to be judged in light of the entire facts and circumstance appearing in a given case.

10. The instant case was not a case of blind murder and there was no situation that the police was not knowing the names of culprits and they only came to know about their names after disclosure was made by the above two witnesses. In the instant case, the F.I.R. (Ex.-P/1) was lodged by Nirmal Kumar Yadav (PW-2) who was also an eyewitness. He had disclosed the names of the assailants in the F.I.R. (Ex.-P/1). That apart, Harendra Yadav (PW-5), another eye-witness, had also disclosed the incident to the police on 5.3.2005 i.e. on the very next day of the incident when his diary statement (Ex.-D/4) was recorded u/S. 161 Cr.P.C.

11. Besides the above, we must keep in mind that the above two witnesses were injured eye-witnesses. In fact, their lives were also attempted. Thus, their presence at the place of occurrence cannot be doubted. They have given details regarding manner of assault given to the deceased. They have also taken specific names of those accused persons who, in fact, had assaulted them. Thus their evidence assume importance (Vide: Balraje @ Trimbak Vs. State of Maharashtra, and Abdul Sayeed Vs. State of Madhya Pradesh,

12. These two witnesses- Ramashray Yadav (PW-1) and Sukhari Yadav (PW-6) were put to lengthy cross-examinations by the defence which run into 18 pages each, but nothing material could be elicited in their cross-examination, on which, their testimonies may be discarded.

13. Nirmal Kumar Yadav (PW-2) had lodged the F.I.R. (Ex.-P/1). He deposed that at the relevant time, he was working in Mahindra Bar situated at Bus-Stand, Power House, Bhilai. In the fateful night at about 11.00 p.m., he was sitting in the Bar. Brijmohan Singh (deceased) came there and said for coming with him to Relief-Bar, Nandini Road. He accompanied him in his Scorpio vehicle and both went to Relief-Bar. Brijmohan (deceased) received some mobile call. Thereafter they went to Meghdoot-Bar. Dinesh Lohiya was also accompanying them. Brijmohan (deceased) left them near Meghdoot-Bar and went towards railway station. He said that he was going to Gupta Hotel. After 10-15 minutes, he heard commotion which was coming from the side of Gupta Hotel. He rushed there and saw that Rajendra (A-1), Manoj (A-4), Amit (A-3), Suraj (A-2), Virendra (A-5) and workers of Gupta Hotel and Mai Hotel were assaulting Brijmohan (deceased) by lathi, danda, hockey-stick, rod and sword. In the meantime, Sukhari (PW-6) and Ramashray (PW-1) also came there. Sukhari (PW-6) and Ramashray (PW-1) tried to save Brijmohan (deceased). They were also assaulted by the persons of Gupta Hotel. Ramashray (PW-1) had received an injury on his abdomen and Sukhari (PW-6) had also received injury near his left eye. Persons of police party had also come there. Brijmohan (deceased) had fell down. The injured persons were taken to Sector-9 Hospital. He went to police station Chhawni and lodged the report.

14. The F.I.R. (Ex.-P/1) contains the names of 9 accused persons. The incident took place at about 11.45 p.m. on 4.3.2005 and the F.I.R. (Ex.-P/1) was lodged at 00.30 a.m. on 5.3.2005. Thus, it was a prompt report lodged by Nirmal Kumar Yadav (PW-2). The prosecution version is duly supported by the evidence of Nirmal Kumar Yadav (PW-2) as also contents of the F.I.R. (Ex.-P/1).

15. Harendra Yadav (PW-5) was also an eye-witness. He also corroborated the evidence of the above 3 eye-witnesses. He was worker in a transport office situated near Gupta Hotel. He was coming on his motorcycle. He saw that deceased-Brijmohan Singh was being assaulted by Rajendra Gutpa (A-1), Suraj Gupta (A-2), Amit Gupta (A-3), Manoj Gupta (A-4) and Ravi @ Tinku (A-6). 4-5 servants of Virendra @ Pintu (A-5) were also assaulting the deceased. They were assaulting him by danda, knife, gupti and a small sword (like katar). He had also noticed the presence of Ramashray Yadav (PW-1) and Sukhari Yadav (PW-6). According to him, Sukhari (PW-6) was assaulted by Manoj Gupta (A-4) and Ramashray (PW-1) was assaulted by Amit (A-3) by a knife.

16. The learned Sessions Judge has held that the appellants had formed an unlawful assembly and in furtherance of the common object of the said assembly, they had committed the above offences. Thus, the questions to be determined in such a case would be, whether the assembly consisted of five or more persons and whether the said persons entertained one or more common objects specified in Section 141 and that what was the common object(s). It has been said time and again that for determination of common object, conduct of each of the members of said assembly before attack, at the time of attack and after the attack would be relevant considerations. In such cases it cannot be expected that the prosecution would come with a case showing particular or independent roles played by each accused. What is important is that if once it is proved that the accused persons were members of unlawful assembly and the offence was committed in furtherance of the common object thereof, they would be liable for punishment for commission of the offence alleged. In the instant case, according to the evidence of 4 eye-witnesses, Brijmohan Singh (deceased) had gone to Gupta Hotel belonging to the appellants where some altercation took place and he was assaulted by many persons by using deadly weapons like lathi, sword, hockey-stick etc. It also comes in the evidence that the accused party had brought him out of the Hotel by assaulting him in group. The conduct of the accused party would show that members of their party had formed an unlawful assembly and they had a common object to commit murder of the deceased and to assault the 2 witnesses (PW-1 & PW-6). This can well be gathered by the act done by the accused persons in the manner stated herein above and other surrounding circumstances. The conduct of the accused persons, by taking their names, has been proved by prosecution witnesses. Thus, we have no doubt to hold that the learned Sessions Judge was fully justified in holding that an unlawful assembly was formed by the accused party and the offences were committed in furtherance of the common object of the said assembly.

17. Now question arises as to whether the Sessions Judge was right in recording the finding that all the appellants were members of unlawful assembly According to the eyewitnesses, each appellant had assaulted the deceased by using some deadly weapon. But if we appreciate their evidence in light of the F.I.R. (Ex.-P/1, which was also lodged by an eye-witness, we find that the name of appellant- Ravi Gupta @ Tinku (A-6) is an omission in the F.I.R. (Ex.-P/1). No explanation has been given by Nirmal Kumar Yadav (PW-2), maker of the F.I.R., as to why his name was not mentioned by him at the time of recording of the F.I.R., whereas, he had mentioned the names of as many as 9 accused persons including the appellants. The F.I.R. (Ex.-P/1) was first hand information given by an eye-witness to the police just after 45 minutes of the incident. In normal circumstances, when it contains the names of other accused persons, it should have contained the name of Ravi Gupta @ Tinku (A-6) also. The logic behind the acquittal of the other accused persons appears that it was not proved that they were also the members of unlawful assembly. The incident took place on a public road in front of Gupta Hotel and large number of persons had gathered there. According to Nirmal Kumar Yadav (PW-2), Ravi (A-6) had also assaulted the deceased. We are of the view that in such situation omission of his name in the F.I.R. (Ex.-P/1) was fatal to the prosecution and on the said omission, he was entitled to benefit of doubt.

18. Mr. Ottalwar has vehemently contended that, in fact, the complainant party including the deceased had attacked over the accused party, therefore, injuries inflicted by the accused were in right of private defence. It was objected by the Govt. Advocate that no such plea was taken and even otherwise also the case does not disclose a situation that right of private defence had accrued in favour of the accused.

19. It is a settled principle of law that even if a plea of right of private defence was not taken at the stage of trial, but, if it was available to the accused, he may raise the plea on the probabilities and circumstances obtaining in the case. The principle is that no positive evidence, although, is required to be adduced by the accused and burden of proof can be discharged by eliciting the necessary material from the witnesses examined by the prosecution and it can be established by attending circumstances as may come out from the prosecution evidence itself or it can be discharged by adducing the defence evidence (Vide: Kashi Ram and Others Vs. State of M.P., Bishna @ Bhiswadeb Mahato and Others Vs. State of West Bengal, ; Salim Zia Vs. State of Uttar Pradesh, ; Akhilesh Kumar and Others Vs. State of C.G., and Pramila-Vs- State of Chhattisgarh, Cr.A. No. 868/2006).

20. Section 96 IPC provides that nothing is an offence which is done in the exercise of the right of private defence. Section 97 provides that every person has a right, subject to the restrictions contained in section 99, to defend his own body, and the body of any other person, against any offence affecting the human body. u/s 105 of the Indian Evidence Act, the burden of proving the existence of circumstances bringing the case within any of the General or Special Exceptions is placed on the accused. Sections 102 and 105 IPC deal with commencement and continuance of the right of private defence of body as well as property. It commences as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed, but not until there is reasonable apprehension. Such right is co-extensive to the reasonable apprehension of the danger to the body continues. All surrounding circumstances are to be considered for determining availability of right of private defence and number of injuries sustained by accused is not a safe criteria (Vide: Krishna & Anr.-Vs- State of U.P., 2007 AIR SCW 4372 & Hanumantappa Bhimappa Dalavai and Another Vs. State of Karnataka,

21. In Darshan Singh Vs. State of Punjab and Another, the Supreme Court laid down following principles:

(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.

(iii) A mere reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension.

(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.

(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

(ix) The Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.

22. Mr. Ottalwar, referring to the above decision, has emphasized that the deceased and the 2 injured persons had attacked over the accused party and the 2 accused namely-Rajendra Gupta (A-1) and Suraj Gupta (A-2) had also sustained injuries. Therefore, the accused persons, who were brothers and cousin, were fully justified in exercising their right of private defence. We must reject this argument for a simple reason that the injuries sustained by Rajendra Gupta (A-1) and Suraj Gupta (A-2) were not proved as evidence in the instant case either by producing their MLC reports or by any other evidence. The said argument was advanced on the basis of alleged injury reports of these two accused persons which is part of the documents of the cross-case. The Sessions Judge was fully justified in not taking those documents into consideration.

23. In Mitthulal and Another Vs. The State of Madhya Pradesh, it was held that "It is elementary that each case must be decided on the evidence recorded in it and evidence recorded in another case cannot be taken into account in arriving at the decision. Even in, civil cases this cannot be done unless the parties are agreed that the evidence in one case may be treated as evidence in the other. Much more so in criminal cases would this be impermissible. It is doubtful whether the evidence recorded in one criminal case can be treated as evidence in the other, even with the consent of the accused". Thus, it was held that the Appellate Court cannot refer to the evidence recorded in the cross-case.

24. In Nathilal v. State of U. P. it was further held that where the cross-cases are being tried, each case should be decided on the basis of evidence placed on record in that particular case without being influenced by evidence or arguments urged in cross-case. However, judgments in both the cases are to be pronounced by same Judge one after another.

25. Thus, the argument relating to right of private defence based on the injury reports contained in the evidence of cross-case cannot be looked into.

26. Mr. Mishra, learned counsel appearing on behalf of the State, has argued that even otherwise also, there is no material to show that the deceased or 2 injured witnesses had gone together to Gupta Hotel or they were armed with some weapons or they were aggressor and a situation was created that the accused party conceived reasonable apprehension of danger to their lives. The argument appears to be correct. There is no evidence to show that Brijmohan Singh (deceased) had gone to Gupta Hotel along with 2 injured witnesses (PW-1 & PW-6). On the contrary, it comes in the evidence of Nirmal Kumar Yadav (PW-2) that the deceased had gone all alone to Gupta Hotel. It also comes in the evidence of Ramashray Yadav (PW-1) and Sukhari Yadav (PW-6) that they reached to the place of occurrence after hearing the commotion and saw that the deceased was being assaulted by the accused persons. These are un-controverted evidence though the above witnesses were put to lengthy cross-examinations. Therefore, it was not established that the complainant party (deceased and injured persons) had gone together to the place of occurrence.

27. That apart, there is no iota of evidence to show that either the deceased or the 2 witnesses (PW-1 and PW-6) were armed with any weapon. There was no evidence to show that the accused party or any one of them had a reason to have reasonable apprehension of danger to the body which could have arisen from an attempt or threat to commit the offence by the deceased or by the above 2 witnesses. We are of the view that it was not a case in which the right of private defence had accrued in favour of the accused persons or any one of them and they had assaulted the deceased and the injured witnesses in exercise of their right of private defence. That apart, when a case of unlawful assembly was established, a plea of right of private defence, in the above circumstances, would be untenable.

28. Mr. Ottalwar has also argued that it was not established that the copy of F.I.R. (Ex.-P/1) was sent to Illaqa Magistrate, therefore, there was non-compliance of Section 157(1) Cr.P.C. We have perused the F.I.R. (Ex.-P/1) as also the evidence of A.S.I., H.L. Shukla (PW-15). The F.I.R. (Ex.-P/1) clearly contains an endorsement that its copy was sent to Illaqa Magistrate i.e. Judicial Magistrate, First Class, Durg. The above endorsement was proved by Mr. Shukla (PW-15) who had written the F.I.R. Para-16 of the evidence of H.L. Shukla (PW-15) has been referred in which he said that he cannot say as to whether the copy was sent or not, but he had issued instruction to the concerned Moharrir and endorsement was made by him in the F.I.R. (Ex.-P/1) at place D to D. He deposed that the copy of the F.I.R. is sent through Dak-Book, but the Dak-Book has not been filed. On the above evidence of H.L. Shukla (PW-15), which was on assumptions, it cannot be said that the copy of the F.I.R. (Ex.-P/1) was not sent to the Illaqa Magistrate. The F.I.R. itself contains an endorsement that it was sent to the Illaqa Magistrate and the witness has said that he had given instruction to the Moharrir to send it. In absence of any proof to the contrary, it cannot be held that, in fact, such copy was not sent to the Illaqa Magistrate. Moreover on the above alleged irregularity the entire case of the prosecution cannot be thrown which was otherwise fully established by the eyewitnesses.

29. In the result, the appeal is partly allowed. The conviction and sentences awarded to appellant- Ravi @ Tinku Gupta (A-6) u/Ss 148, 302/149 & 307/149 IPC are set-aside. He is acquitted of the charges framed against him. It is stated that he is on bail. His bail bond shall continue for a period of 6 months in view of Section 437-A Cr.P.C. The appeal filed on behalf of appellants- Rajendra Gupta, Suraj Gupta, Amit Gupta, Manoj Gupta and Virendra @ Pintu Gupta (A-1 to A-5) is dismissed.

Final Result : Partly Allowed