Bhushan and Others vs State of Madhya Pradesh

A.P. Shrivastava, J.

Facts of the case are that the Polic Narsinghpur filed a challan against the accused persons Bhushan, Dorilal, Asharam, Arjun and Rajesh under sections 147, 148, 149, 307, 307 read with section 149 of I.P.C. After committal of the case, the Additional Sessions Judge, Narsinghpur in Sessions Trial No. 22/90 framed charges u/s 148, 307, in the alternative u/s 307/149 of I.P.C. against accused Dorilal, Asharam and Arjun. Rajesh was minor, initially he was shown absconding, but subsequently a separate challan was filed in the Juvenile Court. After the trial, the learned Sessions Judge found that accused Bhushan, Dorilal & Arjun guilty u/s 325/34 of I.P.C.Accused Asharma was acquitted. The learned Sessions Judge acquitted all the accused from the charges under sections 148,307,307/149 of I.P.C., but convicted the accused Bhushan, Dorilal and Arjun u/s 325/34 I.P.C. for rigorous imprisonment of 2 years. Against the acquittal of accused persons u/s 148,307/149,307 I.P.C., the State preferred an appeal which is registered as Criminal Appeal No. 337/1992 while against the conviction of accused persons Bhushan, Dorilal and Arjun they have filed an appeal, which is registered as Criminal Appeal No. 902/1991. As both the appeals are arising out of one judgment, both the appeals are decided by this common order.

The prosecution story in short is that on 03/09/1989 at 7:00 P.M. the injured PW-3 Motilal was standing along with PW-5 Ramadhar in front of the shop Taj Cycle Mart, whereby the appellants/accused persons namely, Bhushan (appellant No.1), Dori Lal (appellant No.2) and Arjun (appellant No.3) came there with deadly weapons and assaulted the complainant Motilal (P.W.3). He sustained injuries. The first information report was lodged on the same day at police station, and injured was medically examined by the doctor. The medical report (Ex.P/11) indicates that out of 8 injuries, 3 were incised, 2 lacerated wounds, one contusion, one swelling and one injury on the left forearm. For injury No. 1 to 5, X-ray was advised. Dr. Maheshwari (PW-1) took X-rays of both hands and the scalp but found fracture on the right hand ulna bone only. There was no fracture in the scalp. The report is exhibit P/1.

The prosecution after completion of investigation filed challan before the Chief Judicial Magistrate, Narsinghpur, which was registered as Criminal Case No. 1696/89 and vide order dated 3.2.1990 the Chief Judicial Magistrate, Narsinghpur committed the case to the Sessions Court. After committal, the case was transmitted to the Court of Additional Sessions Judge for trial. The Additional Sessions Judge framed the charges under sections 148,307 and in the alternative u/s 307/149 against all the accused persons. The prosecution examined Dr. S.K. Maheshwari (P.W.1) in respect of X-Ray examination of complainant Motilal, A.R. Bhave, (P.W.2) the Sub Inspector who recorded report and sent Motilal for medical examination, Motilal (P.W.3) the complainant and injured, Balkishan (P.W.4) an eyewitness Ramadhar (P.W.5) an eyewitness, Shibu (P.W.6) a witness of the seizure, Bachuprasad Patwari (P.W.7) in respect of spot map, Town Inspector and Investigation Officer Chagan Dubey (P.W.8), Dr. A.K. Chaturvedi (P.W.9) who examined injured Motilal and arms sent by the police for his perusal. The accused persons also produced the evidence and examined Dr. Deepak Tignath, Assistant Surgeon in respect of injuries on the person of accused Bhusan and accused Dorilal. After hearing arguments, the Additional Sessions Judge found that an offence u/s 325/34 I.P.C. is made out against the appellant of Cr. A. No. 902/1991, but in respect of other offences, all the accused persons were acquitted including accused Asharma against whom no charges could be proved by the prosecution.

The Appellants/accused argued that the trial Court has not appreciated the prosecution evidence properly, that there was enmity between the parties as injured Motilal (PW-3), Balkishan (PW-4) and Ramadhar (PW-5) were prosecuted u/s 307 I.P.C. for throwing Acid on the sister of appellants. The prosecution witnesses have also concocted a new story of throwing bomb by the appellants which does not find place in their previous police diary statement. It is also submitted that the appellants/accused Balkishan and Dorilal were also substained injuries, but the prosecution has not explained injuries on the persons of aforesaid appellants.

Before appreciating rival contentions of parties, it will be appropriate to see the finding recorded by the Additional Sessions Judge. In para 8 of the judgment, the trial Court found that the prosecution has failed to prove that all the 5 accused persons have beaten the complainant. The trial Court found that though Motilal has stated that all the accused persons Dorilal, Bhushan, Asharam, Rajesh and Arjun have beaten them, but he has not specified whether all the 5 have inflicted injuries on him. Apart from this statement does not find corroboration from the E.I.R., in which he has stated that Bhushan, Dorilal, Asharam and Arjun only 4 persons have beaten him. The eye witness Balkishan (P.W.4) has stated that on the spot in the beginning Arjun and Dorilal reached and thereafter other accused Bhushan and Rajesh reached there and only these four persons beaten Motilal. He has not stated anything about Asharam or whether accused Asharam was present on the spot. The witness Ramadhar, has been considered in para 10 of the trial Court judgment in which the trial Court found that Ramadher has stated that on the spot accused Arjun, Bhushan, Dorilal and Rajesh simultaneously reached but he has not stated this fact in the previous statement Ex.P-3. He has also not stated that all the 5 accused persons reached on the spot and beaten to the complainant. In his previous statement Ex. D-3 he has stated to the police that only 2 accused persons Bhushan and Dorilal have beaten to the accused. He has not stated about any role or participation of Asharam or in respect of his presence on the spot. On the aforesaid ground the Additional Sessions Judge found in para 12 that the offence u/s 148 of I.P.C. is not proved.

So far as section 307 of I.P.C. is concerned, the trial Court considered it in para 13 onwards and recorded finding in para 19 that the injuries are supported by the statement of Doctor and X-Ray report, but in para 28 and 29 of the judgment found that the offence u/s 307 of I.P.C, is not made out and in place of this found that an offence u/s 325/34 of I.P.C. proved. The trial Court also found that there is no evidence in the case that the aforesaid injuries were inflicted to commit murder of complainant nor any intention has been proved.

Now to appreciate the contention of accused appellants, firstly the appeal filed by the accused persons may be seen. The accused persons are convicted u/s 325/34 of I.P.C, in respect injury sustained by the complainant Motilal. From the perusal of record and statement of Dr. A.K. Chaturvedi (P.W.9) the following injuries were found on the person of Motilal:

(i) Incised wound 7 cm x 2 cm x 2 cm over the middle scalp anteriorly placed;

(ii) Incised wound 2 cm x 2 cm x 1.5 cm over occipital region;

(iii) Incised wound 2 cm x 1 cm x 1 cm over frontal region;

(iv) Swelling on left forearm below elbow;

(v) Swelling 2 cm diameter on posterior part of right wrist;

(vi) Lacerated wound 1 cm x.25 cm x.25 cm over left leg;

(vii) Lacerated wound.5cm x.25cm x.25cm over left leg posterior side;

(viii) Contusion 3 cm x 1.5 cm over left shoulder.

For injuries nos. 1, 2 & 3 X-Ray was advised. No fracture was found. For injury no.4 X-Ray was advised in which P.W.1 Dr. S.K. Maheshwari found that there was fracture on right end ulna bone as per Ex. P-1. P. W. 9 Dr. S.K. Chaturvedi has stated that he cannot express any opinion about injury no.1 that whether from this injury a person can die or not. He further stated that it is not necessary that from the injury on scalp a person should die. It depends on the seriousness of injury.

From the perusal of medical evidence, it is apparent that except fracture of ulna bone there was no grievous injury. Doctor has also not expressed his opinion that other injuries were grievous in nature. In this circumstances, it appears that except one injury which caused fracture of ulna, other injuries were simple in nature.

Now other prosecution evidence may be seen. P.W.3 Motilal is complainant injured, who has stated in his statement that on 3.9.1989 he was sitting in the shop of Taj Cycle Kandeli at about 6 P.M. Along with him Taj Cycle Wala and Ramesh were sitting. All of a sudden accused Arjun inflicted one Pharsa blow on his head and accused Dorilal and Bhushan inflicted blow by rod on right knee and both the legs. Injury of rod was also received by him in both the hands and there was fracture of right knee. Asharam and Rajesh beaten him by lathi. The injury of Asharam by lathi was inflicted on the leg. Thereafter he ran to the shop of Ramdas where accused also reached and their(re) Asharma, Rajesh, Bhushan and Arjun beaten him by rod and lathi. When he was running from their(re), accused Bhushan threw a bomb causing injury to his legs. Thereafter he was brought to the Government Hospital where he became unconscious. At the Hospital the Police officer reached, to whom he narrated the story and his report was lodged in the Hospital itself which is Ex. P-2. There was previous enmity with the accused persons because of which he was beaten by the accused persons. In the cross examination he has admitted that Police Narsinghpur had arrested him under National Security Act for throwing acid and using country made hand grenade (Suar Mar Bomb) and sword. The criminal case u/s 307 is also pending against him in respect of throwing acid on the sister of Bhushan, in which Dorilal and other accused persons are witnesses of the incident. The aforesaid incident is prior to the incident of 3.9.1989. He has also admitted that in respect of same incident a criminal case u/s 286, 324 read with section 34 of I.P.C., is under trial in the Court. He has denied that in the same incident any injuries were received by Bhushan and Dorilal. In the incident he has stated that he was unarmed, Attu was also unarmed, but was on the spot. About Bunty he has stated that he was not on the spot. He has stated that he does not know how the accused persons Dorilal and Bhushan received the injuries. In respect of throwing county made grenade by accused, though it is stated that this fact was mentioned in the F.I.R., but in the F.I.R., nothing has been mentioned. He has also denied that he snatched lathi from Dorilal and he ran away from the spot. He has also denied the fact that in the report Ex. P-2 he has stated that thereafter Rajesh reached on the spot with lathi. In his previous statement Ex.D-2, and report Ex. P-2 there is omission of accused Rajesh armed by lathi. He has also been confronted with the F.I.R., that there is omission about reaching of all 5 persons on the spot. On the contrary he has denied that in the F.I.R. Ex.-P-2 he has intimated that accused persons Arjun, Dorilal, Bhushan, and Asharam reached simultaneously on the spot He has denied that he was armed with rod and Attu with country made grenade. He has denied that he had beaten Dorilal and when Bunty also reached on the spot he instigated Bunty to beat accused persons. He has denied that Bunty also beaten accused and Attu threw country made grenade on the accused persons.

P.W.4 Balkishan is eye witness he has stated that he was sitting on the shop of Taj Cycle and there Taj Pahalwan and Ramesh were also present, and appellants namely Arjun and Dorilal firstly reached where Motilal was standing near the shop. Arjun was having Pharsa, Dorilal was armed with rod. Initially Arjun inflicted Pharsa blow on Motilal and thereafter Dorilal inflicted injuries by rod to Motilal. Thereafter Motilal reached on the road, which is just adjacent to the shop, then accused Bhushan and Ramesh reached on the spot. Bhushan was armed with rod and Rajesh with lathi. Bhushan and Rajesh also beaten Motilal. Motilal ran to the shop of Ramdas and there 3-4 accused persons beaten Motilal. Thereafter Motilal ran away to the police station. The accused Bhushan had thrown country made grenade nearby the shop of Dr. Belapur, but nobody was injured in the blast. The police has also seized shirt of Motilal, but the seizure memo was not prepared in the presence of any person. In the cross examination he was asked whether he has stated to the police about infliction of injury by pharsa and rod by Arjun and Dorilal, though he stated in affirmative, but there is an omission in this regard. He was also confronted with his previous statement that Rajesh only reached on the spot. He was also confronted with the previous statement about throwing country made grenade by accused Bhushan in front of the hospital of Dr. Belapur, but there is omission in this regard in the previous statement Ex. P-2. He was also suggested that on the date of incident he and Motilal both beaten to accused persons, but he denied. He has also denied that Motilal was having rod and he was having grenade. He has also denied that at the time of incident Bunty also reached on the spot and he instigated Bunty to beat the accused persons. He also denied the suggestion that accused Bhushan had saved him. He has admitted this fact that in respect of same incident a criminal case is pending against him, Motilal and Bunty.

P.W.5 Ramadhar is an eye witness, he has stated in para 2 of the statement that on the shop of Taj Cycle, Motilal, Badda Kotwar and Taj Pahalwan were sitting. Accused Bhushan, Dorilal and Rajesh simultaneously reached to the shop of Taj Pahalwan, where Arjun inflicted pharsa injury on the head of Motilal. Thereafter accused Rajesh, Bhushan and Asharam beaten to Motilal by lathi and rod. When Motilal was running from the spot, accused Bhushan threw a country made grenade. In the cross examination he has been confronted from his previous statement Ex.D-3, in which he has not stated that the accused Arjun inflicted pharsa injury on Motilal. He has also been confronted that in the previous statement there is omission in respect of fact that Rajesh, Bhushan and Asharam beaten to Motilal. About throwing country made grenade by Bhushan there is also omission in his previous statement. He has also been confronted with his previous statement in which he has stated that after hearing the noise of grenade blast he reached on the spot, but he denied this fact. In previous statement Ex.D-3 he has stated that only two persons have beaten Motilal, namely Bhushan and Dorilal, but he denied this fact. In para 6 of the cross examination he has been suggested that infact the complainant party beaten accused persons and Attu was having country made grenade and he threw it on the accused persons. He has also denied that the accused persons to save themselves have inflicted injuries on the complainant party.

The aforesaid three witnesses are the eye witnesses and others are in respect of seizure memo.

In this case it is not in dispute that the counter case was also registered by police against the complainant party in which complainant Motilal, Attu, Joshi and Bunty are accused. A copy of F.I.R., has been produced by the accused persons, which is Ex.D-4 and proved by P.W. 2 A.R. Bhave, S.I. The accused persons have also received injuries. The certificates are Ex. D-5-A and D.6-A proved by P.W.1 Dr. Deepak Tignath. As per Ex. D-5-A, the accused Bhushan received following injuries :-

(i) Lecerated wound on left leg fourth finger 1 cm x 1/2 cm.

(ii) Abrasion ion right knee 1 cm x 1 cm.

(iii) Abrasion on right knee frontal side 1 Cm x 1/2 cm.

(iv) Abrasion 1 Cm x 1/2 cm on left scapular region.

The aforesaid injuries were caused by hard and blunt object. As per Ex. D-6-A, accused Dorilal received following injuries:-

(i) Bruise 2 cm x 1 cm on right scapular region.

(ii) Bruise 4 cm x 1 cm on posterior aspect of right forearm.

(iii) Lacerated wound 2 cm x 1/2 cm over dorsam left thumb.

(iv) Swelling on metacarpal region of index finger of left arm.

(v) Abrasion 1 cm x 1/2 cm on right thigh.

(vi) Abrasion 1 cm x 1/2 cm over right leg.

(vii) Abrasion 2 cm x 1/2 cm on chest right side.

As per the statement of D.W.1 Dr. Deepak Tignath the aforesaid injuries were caused by hard and blunt object within 24 hours from the time of examination. He has also stated that there was no injury on the person of aforesaid both in respect of any grenade blast.

Now in the light of aforesaid evidence the case may be examined. The prosecution has not explained the injuries on the person of accused persons. Though most of the injuries are simple in nature, but cannot be said that they are superficial in nature. An F.I.R., was immediately lodged by the accused persons on 3.8.1989 at 6 P.M. at police station Narsinghpur. The police has registered criminal case u/s 286,324/34 I.P.C. against Bunty @ Awadesh, Moti S/o Kashiram, Attu @ Balkishan and challan was filed in the Court. The present case in which the Sessions Judge has found guilty appellants u/s 325/34, the F.I.R. was lodged on 3.9.1989 at 19.15 hrs and the incident has been shown of 6 P.M. on 3.9.1989, while in the case of accused persons the F.I.R., was lodged on 4.9.1989 at 00.35 hrs and incident has been shown to be occurred at 6 P.M. on 3.9.1989. Both the F.I.R.s shows that the time of incident was one and in respect of one incident both the parties lodged their report on which the police has registered criminal cases and after investigation filed separate challan, one against accused persons and one against the complainant party. This fact was brought in the notice of learned Sessions Judge. The accused persons also ought to have moved to the Court for analogous hearing of both the cases by one court, but it appears that no such steps were taken. What transpired in the criminal case in which accused are complainant is not on record, nor learned counsel for appellant is in a position to show fate of the aforesaid case, but the fact remains that in respect of one incident criminal case was filed against both the parties and there is procedural flaw in the case by not trying both the case by same court. The law is well settled in this regard that in respect of counter case both the case should be tried by the same court and if one case is triable by the Sessions Court, another case should also be tried by the same Court, but it appears that both the parties has not taken any steps in this regard and the trial was held by two separate Courts.

Now the question remains:

(1) Whether there was substantial injuries on the body of accused persons ?

(2) Whether the prosecution was bound to explain the injuries on the body of accused persons ?

(3) Whether on the basis of injuries received by accused persons it may be presumed that injury inflicted on the complainant party was by way of self defence ?

(4) Whether the prosecution has come with clean hands ?

In respect of explanation of injuries on the person of accused persons the law laid down by the Apex Court in this regard may be seen. In James Martin Vs. State of Kerala, ], the Apex Court considering the right of private defence held that the burden to establish the plea is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of plea either by adducing some positive evidence or by referring to the circumstances transpiring from the prosecution evidence itself. The standard of proof lies on the prosecution to prove its case beyond reasonable doubt. The Apex Court considering the aforesaid issue held thus:

The only question which needs to be considered is the alleged exercise of right of private defence. Section 96 I.P.C., provides that nothing is an offence which is done in the exercise of right of private defence. The section does not define the expression "right of private defence". It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. In a given case the court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. u/s 105 of the Indian Evidence Act, 1872 (in short "the Evidence Act"), the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of accused discharging any burden. Where the right of private defence is pleaded, the evidence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. (See Munshi Ram vs. Delhi Admn., State of Gujarat vs. Bai Fatima, State of U.P. vs. Mohd. Musheer Khan and Mohinder Pal Jolly vs. State of Punjab). Sections 100 to 101 define the extent of the right of private defence of body. If a person has a right of private defence of body u/s 97, that right extends u/s 100 to causing death if there is a reasonable apprehension that death or grievous hurt would be the consequence of the assault. The oft-quoted observation of this Court in Salim Zia vs. State of U.P. runs as follows: (SCC p. 654, para 9)

It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of prosecution witnesses or by adducing defence evidence.

The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.

The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. (See Lakshmi Singh Vs. State of Bihar). A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject-matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of right of private defence.

In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Similar view was expressed by this Court in Biran Singh vs. State of Bihar. (See Wassan Singh vs. State of Punjab and Sekar vs. State.)

Now in the light of aforesaid case the facts of this case may be seen. The prosecution in the evidence though stated that a country made grenade was thrown in the incident, but this fact does not find place in the F.I.R., Ex. P-2 lodged by Motilal himself. When the accused persons have thrown a country made grenade, there was no reason for not mentioning this important fact in F.I.R. by Motilal which is stated to be lodged after 1 hrs and 15 minutes, while in the F.I.R., lodged by the accused persons Annexure D-4 this fact finds place that Attu thrown country made grenade and it blasted on the spot. There are injuries which are 5 nos on the accused Bhushan and 7 nos of Dorilal, but the prosecution witnesses have denied this fact that any of them have caused injury to the accused persons. There appears to be enmity between the complainant and accused parties. The sister of accused Bhushan was injured by accused Motilal by throwing of acid and a case u/s 307 of I.P.C. was under trial against him. Apart from this Motilal is also facing some other criminal cases and the witnesses Bunty @ Balkishan is also co-accused for the same case. In respect of same incident the criminal case is also pending against Motilal, Bunty and one Attu. The complainant Motilal and other witnesses have denied specifically this fact that any injury was inflicted by them. In the light of these facts the evidence of prosecution may be weighed. When the prosecution is not disclosing anything in respect of injuries and throwing of country made grenade, a suspicion arises on the entire prosecution case and a preponderance of probability may be presumed in favour of accused persons that when the accused persons were going on in front of the shop of Taj Cycle, firstly they were assaulted by arms and thereafter were beaten by complainant party. It appears that thereafter the accused persons have beaten to complainant party and some injuries were inflicted on the person of Motilal, while inflicting injuries it is a spur of moment in which the injuries are caused. There is no hard and fast rule in this regard that only a simple injury should have been caused by exercising right of private defence. If some grievous injury is caused in exercise of right of private defence the accused persons cannot be denied the right of private defence. In the aforesaid circumstances the accused persons have established their plea by preponderance of probability, that infact they were not aggressors and the complainant party was aggressors and the injury caused to Motilal was in their right of private defence and the accused persons are entitled for benefit of doubt in this regard.

Now the appeal filed by the State may be seen. The State has assailed the judgment on the ground that the trial Court has wrongly acquitted accused persons from the charges u/s 307 I.P.C, and has also acquitted co-accused Asharam from the charges as stated hereinabove. The witness Balkishan has not stated anything in respect of Asharam, nor he has shown his presence on the spot. He has stated only in respect of four persons and when there was specific omission of the name of Asharam, the trial Court has rightly extended the benefit of doubt to Asharam and has rightly acquitted him. Apart from this there is no evidence in the case showing that the intention of accused persons was to cause the death of Motilal. On the contrary looking to the injuries received by Motilal it can very well be presumed that the aforesaid injuries were caused in the exercise of right of private defence. In the aforesaid circumstances, the trial Court has rightly acquitted the accused persons u/s 307 and also to Asharam by extending benefit of doubt.

As the accused persons have established from the evidence and by producing F.I.R., and medical certificates of their case and proving the injuries on the person of Bhushan and Dorilal by examination by Dr. Tignath that the co-accused persons received injury in the same incident and from the perusal of entire incident it is apparent that the complainant party was aggressor and has also thrown country made grenade towards accused persons. In these circumstances the appellants are entitled to get the benefit of right of private defence and also entitled to get the benefit of doubt.

In the aforesaid circumstances, the conviction of appellants u/s 325 read with section 34 of I P. G., is not sustainable under law and all the appellants are acquitted. The appeal filed by the State, is without merit and is accordingly dismissed.