I.P., SINGH, J.

(1.) Rameshwar, Rohan, Shyam Lal and Rampal appellants have preferred this appeal against the judgment and order of Shri B.B.L..Hajeley, I AddI. Sessions Judge, Moradabad dated 5.8.78 in S.I. No. 597 of 1977, State v. Rameshwar and three others, convicting and sentencing each one of the appellants u/s. 325/34, IPC to 4 years R. I. and in additional convicting and sentencing Rohan appellant u/s. 323, IPC to 1 years R.I. This least sentence of Rohan appellant was to run concurrently with his previous sentence.

(2.) Rohan is the son of Rameshwar appellant. Rampal is his nephew and Sham Lal is his friend. They are residents of Village Ajimabad within P.S. Bahjoi, Moradabad. Lakhan Singh complainant (PW 1) is also the resident of same village.

(3.) The prosecution case is that sometime prior to the present occurrence gram sabha had allotted through auction a plot in the Abadi of the village to Sia Ram and Lakhan Singh (PW 1). However, Ghoors of Rameshwar and Shyam Lal appellants used to be dropped on that plot. So, they disliked the said allotment in favour of them, and they started nursing grudge against them. On 14.7.77 at about 6 P.M. complainant Lakhan Singh-, Basdeo Mohan Sia Ram and Ram Prasad were sitting on the Chabutara of the house of Lakhan Singh (PW 1). Rohan appellant arrived there with a lathi and threatened them that they would see how they would build their house on the allotted land. Basdeo protested and asked him not to hurl abuses. Then Rameshwar, Rampal and Shyam Lal appellants arrived there holding Jathis. All the four appellants started beating Sia Ram and Basdeo, Sia Ram fell down unconscious. Lakhan Singh and Ram Prasad are said to have wielded lathis in self-defence.

(4.) The report of the above incident was lodged at P.S. Bahjoi the same day at 8.55 P.M. which was recorded u/s. 323/504/506, IPC. Mohan and Ram Prasad were cited as witnesses.

(5.) Basdeo and Sia Ram were medically examined the same day between 9.10 P.M. and 9.25 P.M. by Dr. G.D. Tandon, Medical Officer, Primary Health Centre, Bahjoi, Moradabad. Basdeo had suffered one lacerated would scalp deep on the top of the head, one contusion on hypothenar aminence and one reddish contusion on outer aspect of left arm. All the injuries were simple and caused by blunt weapon. The duration was fresh.

(6.) Sia Ra m suffered one lacerated wound 6 cm x 0.4 cm bone deep 13 cms. away from left ear obliquely placed. The doctor noted that the patient was unconscious. His right eye was dilated and both the eyes were not reacting to light. The duration was fresh.

(7.) Rameshwar appellant in his statement u/s.313, Cr. P.C. pleaded that Lakhan Singh (PW 1). Munshi, Ranbir and Manabir bad beaten him at his field He ran away to his house. His assailants had chased him. His cousin Gajram came out with a lathi and wielded against the assailants outside the door of his house. Besides, some village urchins had thrown brick bats at them.

(8.) Rampal appellant pleaded that Rameshwar appellant was attacked by lakhan Singh, Munshi and Ranbir at his field (he omitted the name of Mahabir) and he (Ram pal) had intervened to save him. Rameshwar had run away to his house. He added that Rameshwar bad lodged a report about this incident. According to him when Lakhan Singh (PW 1) came to know about the said report he lodged his report falsely implicating him in the case.

(9.) Rohan appellant pleaded alibi by saying that at the time of occurrence he was away to his Sasural. However, he did not lead any evidence about his alibi.

(10.) Shyam Lal appellant pleaded that Yad Ram filed a case against him. Ram Charan the brother of Lakhan Singh (PW 1) had given evidence against him. Nevertheless he was acquitted. But for this grudge he was falsely implicated by Lakhan. Singh in this case.

(11.) As a matter of fact none of the appellants led any evidence in support of their respective cases.

(12.) Rameshwar appellant had lodged the F.I.R. at the Police Station Bahjoi on 14.7.77 at 16 P.M. against Lakhan Singh, Ranbir, Munsbi and Mahabir. It was registered at the P.S. u/ss. 323/506. IPC. The time of occurrence was said to be 6 P.M. Shyam Lal appellant and Ramphal son of Ram Lal (the correct name appears to be Rampal appellant son of Ram Lal) were cited as eye witnesses. The contents of the report were that yesterday (ie. on 13.7.77) he was looking after his field to prevent cattle starying into it. Lakhan Singh (PW 1, Ranbir, Munshi and Mahabir arrived there with lath is and started beating him. His alarm attracted Shyam Lal and Ramphal witnesses who were grazing their bullocks nearby. They intervened and saved him.

(13.) Rameshwar appellant got himself medically examined the same night at 10.15 P.M. from Dr. G.D. Tandon, Medical Officer Incharge, P.H.C., Bahjoi. Moradabad. He recorded the following injuries on his person;

1. Lacerated wound 2.5 cm. x 0.4 cm. x 5 cm. scalp deep, top of head, 14 cm. away from right ear. 2. Incised wound 1.5 cm x 0.4 cm x skin deep- on outer aspect left arm middle 1/3 transversally. It is Medial and tapering. 3. C/o pain on scapular region. No visible injury.

(14.) The prosecution in order to establish their case examined 8 witnesses including Lakhan Singh (PW 1), Mohan (PW 2) and Basdeo (PW 4). The learned Sessions Judge after appreciating the evidence on record convicted and- sentenced the appellants as above.

(15.) In this appeal it is to be noted that Rohan appellant did not lead any evidence in support of his plea of alibi. Accordingly he would be deemed to be at the place at the alleged hour where the prosecution alleges him to be; meaning thereby that his defence has no base.

(16.) According to Rameshwar appellant he was belaboured by four assailants, Lakhan Singh (PW 1), Munshi, Ranbir and. Mahabir. In his statement u/s 313 Cr. P.C. he did not mention what weapons were used against him. But from his F.I.R. it would appear that he was assaulted by lathis. According to his F.I.R. Shyam Lal appellant and one RamPhal had saved him. In the F.I.R. he did not mention that he had run away from his field and had a one-into his house or Haveli. His cousin Gajram had came out with a lathi to save him and he had used the same against the said four assailants who had chased him upto his house. To that extent his F.I.R. appears to be materially contradicting his statement u/s. 313, Cr.P.C. Besides, Shyam Lal appellant, who was one of his witnesses, in his statement did not make any reference to the said occurence. He never claimed to be his witness of that occurrence. Nevertheless Ram Pal appellant had claimed himself to be a witness of the said occurrence but the most important feature is that according to him there were only three assailants. He did not name Mahabir to be the fourth assailant. The second feature of his statement u/s. 313, Cr.P.C. is that he did not claim that those three assailants had chased Rameshwar appellant to his house. He also did not go there and he had nothing to say as to what happened at the house of Rameshwar. The alleged incident at Rameshars house is also not mentioned in his F.I.R. In this background I have no hesitation. to say that Rameshwar appellant has added the second part of his version, as given in his statement, which is said to have taken place at his house, where his cousin Gajram is reported to have wielded lathis at his three chasers, as an afterthought.

(17.) Moreover, the contents of his F.I.R. would indicate that the incident had happened in the evening of 13.7.77. This is something contrary to the alleged version. No witness was examined by the defence in support of that version. For all these reasons I am not satisfied about their version of the incident. But, the mere fact that the defence failed to inspire confidence of the court in itself would not mean that the prosecution version must be accepted as true. The prosecution has to stand on its own legs and succeed on the strength of their own evidence.

(18.) The prosecution have alleged motive on the part of the appellants for the alleged assault on Basdeo and Sia Ram, the near relations of Lakhan Singh (PW 1). According to them Gram Sabha, had allotted through auction a plot in the village Abadi to Lakhan . Singh (PW 1) and Sia Ram (deceased) jointly. Previously the four appellants used to throw their Ghoor on it. Naturally when the plot was allotted to Lakhan Singh and Sia Ram then they would not permit to throw the Ghoor on it. This had enraged the appellants. It is argued on behalf of the appellants that the prosecution have not filed any document to prove the said allotment. That is true, but when the above situation was put to the appellants u/s 313, Cr. P.C they denied the factum of throwing their Ghoor on the laid plot. They denied the entire circumstance by an omnibus answer that it was all wrong to say so. By that expression one may even be justified to say that they denied the said allotment of the plot to Lakhan Singh and Sia Ram. But, it is important to note that during the cross- examination of Lakhan Singh complainant (PW 1) in para 8, a suggestion given, on behalf of the appellants, was that Gboor of Rameshwar and Shyam Lal appellants was never thrown on the land allotted to Lakhan Singh (PW 1) and Sia Ram. This means that the allotment of the said land was not seriously challenged by the defence. The only fact which was challenged was of throwing Ghoor on that land. In this background I have no hesitation to conclude that the appellants had enough alleged motive. At least there was enough material on the basis of which they could be expected to entertain grudge against Lakhan Singh and Sia Ram.

(19.) The prosecution version, as mentioned above, has been deposed on oath by Lakhan Singh (PW 1), Mohan (PW 2) and Basdeo injured (PW 4). There is nothing inherent in their statements to discredit them. Each one of them has, in his statement, corroborated the other about the above details of the incident. Their version also finds corroboration from the medical evidence on record as well as from the P. I. R. lodled by Lakhan Singh (PW 1) at the Police Station on that very day at 8.55 P. M. by no stretch of imagination the said F.I.R. could be said to be a delayed one. Mohan (PW 2) was named as eye witness in the said F.I.R. Both the injured had sustained small four injuries caused by blunt weapon. They are consistent with the number of assailants and the use of lathis. Suggestion given to the witnesses in line with the defence version of the incident were duly denied by them. An impression was created that perhaps the marpit had taken place at the Chabutara. Nonetheless from the statement of Mohan PW 2 it was clear that the Marpit had taken place below the Chabutara on the Rasta. The explanation that both Lakhan Singh (PW 1) and Sia Ram had got down the Chabutara and the four appellants had wielded lathis on them there corresponds to place of occurrence as shown by the. I. 0. in the site plan indicated by cross mark in the rasta which is situated quite adjacent 10 the south-western corner of the Chabutara.

(20.) The learned counsel for the appellants raised a point that the 1.0. was not able to recover sample of blod stained earth from the alleged place of occurrence and it would mean that perhaps the occurrence did not take place there and it cannot be said with all certainty that the occurrence took place down below the Chabutara as deposed by the witnesses and for this simple reason the testimony of the prosecution witnesses including the injured Basdeo (PW 4) should not be believed. But, I am not impressed with this argument. Lakhan Singh (PW 1) has stated that, in the night following the occurrence it had rained. The incident had taken place in mid July which can reasonably support the falling of rain. A suggestion was given to Basdeo (PW 4 that Sia Ram was hurt on the Chabutra but when he fell down he tumbled down below the Chabutara. This suggestion was denied meaning thereby that he had not been beaten on the Chabutara but was beaten down below in the Rasta and he fell down there. This suggestion itself lends support to the prosecution case that the incident of Marpit took place below the Chabutara. In this background non recovery of blood from the place of Marpit is of no consequence.

(21.) The learned counsel for the appellants then argued that the prosecution have not explained the injuries of Rameshwar appellant. The Settled law on the point is that prosecution is required to prove only those injuries suffered by the appellant which were sustained by him during the course of same transaction. The two respective cases put. forward by both the sides bring on record two separate cases. It is, therefore, obvious that injuries on both the sides were not claimed to be suffered in the same transaction. In this background there would be no necessity for the prosecution to explain the injuries of Rameshwar appellant. Lakhan Singh (PW 1) Mohan (PW 2) and Basdeo (PW 4) have stated that after the appellants had attacked lakhan Singh and others then - lakhan Singh had also wielded lathi in self-defence. The theory of this self defence never found place in the F.I.R. of Lakhan Singh. To me, it appears that during the course of trial perhaps they were made conscious about the injuries sustained by Rameshwar appellant and they in their enthusiasm and anedety offered on their own accord this explanation for his injuries by saying that Lakhan Singh had wielded lathi in self defence. This witness stopped at that and did not further say that those lathis had been wielded at Rameshwar appellant. The learned counsel for the appellant has pointed out that Lakhan Singh (PW 1) in his examination in chief has, stated that be and his other companions were sitting at the Chabutara empty handed and it really looked strange how he all of a sudden could use lathi in self defence specially when he admitted that lathi was not lying on the Chabutara also. That certainly apparently looks ridiculous but on behalf of the State it was explained that one should not forget that the Chabutara is the part of the house and in villages, as it goes in India every villager can reasonably be presumed to have a lathi in his house. It is true that Lakhan Singh had not stated that he rushed to his house to fetch the lathi but this inference was sought to be deducted by the learned A.G.A. from the circumstance that Lakhan Singh (PW 1) had escaped unhurt. It is argued that had he remained stationary at the Chabutra then in all probability he too would not have been spared by the assailants especially when he was the main enemy. The only plausible reason seems to be that when he saw his nephew and uncle being beaten with lathis he must have brought lathi from his house and wielded that at the assailants. The probability of the circumstance could not be ruled out. But as already mentioned above, the prosecution was under no obligation to explain the injuries suffered by Rameshwar appellant.

(22.) On a consideration of the above discussion I see no force in this appeal. I see no reason to differ from the view taken by the learned Sessions Judge regarding the specific roles of the appellants and the sentences awarded to them in that respect. The sentences awarded are by no means severe.

(23.) The appeal is, therefore, dismissed. The convictions and sentences awarded by the learned Sessions Judge to each one of the appellants are confirmed. All the appellants are on bail. They shall be taken into custody forthwith to serve out their respective sentences. Their bail bonds are cancelled. Appeal dismissed.