Jagvir and Others vs State of U.P.

Bala Krishna Narayana, J.—Heard Sri P.N. Misra, Senior Advocate, assisted by Sri Jitendra Pal Singh and Sri M.C. Singh, Learned Counsels for the appellants and learned A.G.A. appearing for the State and perused the record.

The challenge in this appeal by the seven appellants namely, Jagvir, Chet Ram, Lakhpat, Har Vir, Udai Vir, Vir Singh and Chhattar is to the conviction of the accused-appellants, Jagvir, Lakhpat, Udai Vir and Chhattar Pal under Sections 148, 307 and 149 I.P.C. and Sections 302 and 149 I.P.C. and imposed sentence of two years'' R.I. each on the first count, five years'' R.I. each on the second count, and life imprisonment each on the third count, conviction of accused-appellant Chet Ram, Har Vir and Vir Singh under Sections 147, 307, 149 and Sections 302 and 149 I.P.C. and imposed sentence of one year R.I. each on the first count, five years'' R.I. each on the second count and imprisonment for life each on the third count vide Judgment and order dated 27th February, 1982 passed by the IV Additional Sessions Judge, Bulandshahar in S.T. No. 28 of 1981 State v. Jagvir and Ors.

The appellant No. 1, Jagvir, appellant No. 2, Chet Ram, appellant No. 4, Har Vir, and appellant No. 5, Udai Vir died during the pendency of this appeal and this Court vide order dated 7.12.2009 abated the present appeal against the deceased appellants Nos. 1, 2, 4 and 5. The appeal thus survives only on behalf of appellant No. 3, Chet Ram, appellant No. 6, Vir Singh and appellant No. 7, Chhattar. As a result, the appeal is now being heard only on their behalf.

The prosecution version as unfolded in the first information report (Ext.-Ka-1) lodged by Naresh, son of the deceased-Sohan on 2.8.1980 at about 4.00 P. M. with police station-Jahangeerabad, district-Bulandshahar, is that his father, Sohan (deceased), his maternal uncle Rajinder and cousin sister, Chhammo had gone to the field of Sohan to collect fodder on the day of the incident. They noticed the accused persons diverting rain water into their maize crop field by demolishing the barrage raised by the deceased Sohan to prevent rain water from entering the field and when Sohan and Rajinder objected to the diverting of rain water into the field of the deceased by the accused, they were attacked by the accused with spears and Lathis. Spears were assigned to accused Jagvir, Lakhpat and Chhattar Pal and Lathi was assigned to Vir Singh. While the assault was in progress, Bani Singh, Subedar Singh besides other villagers reached the place of incident. On the alarm raised by the victims, Ranjit and the informant Naresh also reached the spot and saw the accused effecting their retreat. Sohan succumbed to his injuries on the spot and the other victim Rajinder followed the informant Naresh to the police station in a separate buffalo-cart. It was also mentioned in the first information report that Jagvir opened fire.

Head Moharrir, Om Prakash Tyagi prepared Chik F.I.R. (Ext.-Ka) and relevant G.D. Entry. The case was investigated by S.I., Gopi Chand Verma. The inquest report was prepared by S.I., Sangram Singh. The site plan was drawn by the Investigating Officer. He interrogated Km. Chhammo and Bani Singh. Udai Vir and Vir Singh were admitted in district hospital at district-Bulandshahar on 15.8.1980. The remaining accused persons surrendered before the Court. The post-mortem of deceased, Sohan was conducted by Dr. G.N. Srivastava (P.W.7) who noted incised wounds on the left side of the chest of deceased and an abrasion in the middle abdomen. The death of Sohan was opined to have resulted due to shock and haemorrhage as the pericardium as well as the right ventricle of heart had been cut.

Accused Chet Ram, Har Vir, Udai Vir and Vir Singh were charged for the offences punishable u/s 147 I.P.C. and Jagvir, Lakhpat and Chhattarpal were charged for offence punishable u/s 148 I.P.C. All the accused were further charged for the offences punishable under Sections 302 and 307 I.P.C. read with Section 149 I.P.C. to which they all pleaded not guilty, claimed trial and were consequently tried.

In its endeavour to establish the guilt of the accused prosecution examined P.W. 1 Naresh the informant, P.W. 2 Rajinder, the injured and P.W. 3 Subedar Singh as witnesses to the actual commission of the crime, P.W. 4 Dr. A.C. Manchanda who had medically examined victim Rajinder and Udai Veer, Vier Singh and Teja P.W. 5 H.C. Om Prakash Tyagi, the scribe of the Chick report and the G.D. entry regarding the registration of the crime, P.W. 6 Constable Jagdish Prasad, who had brought the corpse of the deceased to the mortuary for post-mortem P.W. 7 Dr. G.N. Srivastava, who had performed the autopsy on the corpse of the deceased. P.W. 8, Section I. Gpi chand Verma, the Investigating Officer and P.W. 9 Section I. Sangram Singh, who held the inquest on the body of the deceased.

Accused Chet Ram, Lakhpat and Har Vir Singh denied their presence on the spot accused Jag Vir, Udai Vir, Vir Singh and Chhattar Pal in their examination u/s 313 Cr.P.C. refuted the prosecution version. The accused Udai Vir filed a detailed written statement setting out that on the day of the incident it had rained heavily and when it stopped raining at about 2.00 P.M., he went to see his cow-dung cakes which he had heaped on the land of Gram Sabha near the field of Sohan and found that Sohan had raised a barrage to save his maize crop of his field from being washed away by rain water. He demolished the barrage on which Sohan (deceased) along with is sons Naresh and Sukhi, brother, Ranjit and brother-in-law Rajendra quarrelled with him and when his brother Vir Singh and Tej singh arrived on hearing their altercation, Sohan and his sons, his brother and brother-in-law started re-erecting the barrage which had been demolished and when the same was resisted, Sohan and others attacked him and his brothers, Vir Singh and Teja with Lathis and spears. In the scuffle, that followed his brother Mahavir who had also arrived at the place of incident too received injuries and who in his self defence wielded a spear hitting Sohan in his chest and Teja wielded his Lathi hitting Rajender. He further stated that Mahaveer lodged a written report of the incident at police station-Jahangeerabad, copy of which was on record as Ext. Kha-4 on the basis of which Case Crime No. 216-A was registered against Naresh and Ranjit and other accused persons. The accused Udai Vir and Vir Singh were sent in police Jeep to the district hospital after their medical examination at Primary Health Centre, Jahangeerabad. D.W. 1 Dr. H.U.K. Zubari, Radiologist who had taken X-Ray of accused Udai Vir detected emphysema in his left lung. D.W. 2 Dr. M.K. Goyal who had attended both Udai Vir and Vir Singh had noticed surgical emphysema in their lungs and had advised X-Ray for confirmation of the same and D.W. 3 Dr. D.B. Singh who had medically examined Mahavir Singh on 3.8.1980 at 11.00 A.M. were examined in defence. The Sessions Judge after taking into consideration the entire evidence on record as well as the cross version of the incident set-up by the accused persons in their statements recorded u/s 313 Cr.P.C. as well as the detailed written statement filed by the accused Udai Vir and the plea of exercise of right of private defence raised on behalf of the accused persons held that the accused and not Sohan (deceased) and his sons were the aggressors. While coming to the aforesaid conclusion he noticed that the cow-dung cakes were heaped by the accused Udai Vir on Gram Sabha land and not on his land and thus, accused had no legal justification for demolishing the barrage which had been erected by the deceased, Sohan with a view to prevent his field from getting inundated by rain water and save his maize crops and if on account of erection of the barrage the cow-dung cakes and straw kept by the accused on the Gram Sabha land were likely to be washed away by rain water, the accused persons were to thank themselves.

He further observed that the very act of demolition of the barrage by the accused was an act of aggression and Sohan and his sons having no time to take recourse to lawful authorities to prevent damage resulting from rain water washing away their crops, had full justification to re-erect the barrage and if the accused resisted the same and used force against Sohan (deceased) and his sons, they were aggressors. The Court below thereafter proceeded to convict the accused of the offences with which they had been charged.

Sri P.N. Mishra, learned Counsel appearing for the appellant vehemently urged that it being established from the evidence on record that four persons from the side of the accused had received lathi and spear injuries and there being no mention in the first information report about the injuries received by the accused persons and there being no explanation by the prosecution for the injuries sustained by the accused, it is crystal clear that the prosecution had not come with the clean hands and in fact from the evidence on record it was proved that the complainant side was the aggressor and the death of Sohan (deceased) and injuries inflicted upon the injured victim Rajinder were a result of the exercise of right of private defence by the accused persons as the assault made by Sohan and his sons and other relatives on the accused persons was such which may had reasonably caused apprehension of death or grievous hurt in the mind of the accused and the court below committed a manifest error in repelling the plea of exercise of right of private defence set-up by the accused and in holding them to be the aggressors. The second ground on which he challenged the conviction of the appellants, was that even according to the Sessions Judge deceased Sohan had erected the barrage on the Gram Sabha land and thus if had been demolished by the accused, Sohan and his relatives had no right to re-erect the same and assault the accused when they attempted to stop deceased Sohan from proceeding with the re-erection of the barrage and their act, can by no means be termed as an act done in pursuance of exercise pursuant to right to life or property and as such they were the aggressors and the finding recorded to the contrary by the court below, cannot be sustained.

Sri Misra thirdly contended that the view taken by the court below that despite the fact that four persons had received injuries from the side of the accused it cannot be said that death of Sohan and injuries to Rajinder were caused by the accused persons in furtherance of an act done in exercise of right of private defence is absolutely untenable and misconceived.

Per contra, Smt. Maya Bajpayee, learned A.G.A. submitted that the Judgment passed by the Court below does not suffer from any illegality or infirmity warranting any interference by this Court. She further contended that it being established from the evidence on record that the appellants were aggressors and their plea that death of Sohan and injuries to Rajinder were a result of the act done by them in the exercise of right of private defence having been repelled and their being no material on record which may warrant taking a view other than the one taken by the Sessions Judge, the appeal has no merit and is liable to be dismissed.

We have carefully examined the submissions made by learned Counsel for the parties and perused the impugned Judgment as well as the record of the sessions trial. From the perusal of the record it transpires that there is no dispute with regard to taking place of occurrence and the involvement of accused persons as well as the complainant and his relatives in the incident, although Chet Ram, Lakhpat, Har Vir and Chhattar Pal pleaded that they were not present at the place of incident and had been falsely roped in and they refuted the prosecution version.

The only question which has to be decided in this appeal is as to whether the view taken by the Sessions Judge that the appellants accused were aggressors, can be sustained or not. From the perusal of the impugned Judgment and the record it appears that the cross version of the incident was registered as Case Crime No. 216-A of 1980 under Sections 147, 323 and 324 I.P.C. on the basis of first information report lodged by Mahaveer against the deceased and his sons and other relatives. The accused in the said case were tried for the offence with which they had been charged in sessions trial No. 28 of 1980. Neither learned Counsel for the appellants nor learned A.G.A. are in a position to divulge about the fate of the said trial.

Sri Misra submitted that even if it is assumed that the accused in the aforementioned trial have been acquitted, even then the appellants are not barred from raising the plea of private defence before this Court in this appeal on the same set of facts.

The right of private defence is well recognized right in civilized country. Sections 96 to 106 I.P.C. provide the law of private defence. Private defence of the body of a person necessitates reasonable danger which must be founded on facts. The object of right of private defence is not punitive but preventive. The right of private defence is conferred on the aggressee and not on aggressor. The right of private defence is used as a shield and not as a weapon of offence. It is defensive in nature and is based on the principle that every man has been endowed with certain amount of self reliance and will not as such flee away when he is attacked by criminals. A person is not so coward to die at the hands of criminal but will use of force and measures to check the criminals from assault on his person or to destroy his property.

The Apex Court in Raja Shekhran v. State represented by Inspector of Police, Tamilnadu 2003 Criminal Law Journal page 53 has laid down that 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 material available on record. Plea of right of private defence cannot be the basis on surmises or conjunctures. In order to find out whether right of private defence is available or not, the injuries rescinded by the accused, the imminence of threat to his safety, injury caused and circumstances are to be considered.

The Apex Court in Tara Chand and Another Vs. State of Haryana, held that when the prosecution has not explained the injury on the person of accused satisfactorily, it is helpful in making a plea the accused acted his right of private defence.

In the light of the aforementioned authorities on the subject and on the basis of the evidence on record and the injuries received on both the sides, we have to examine which of the two, complainant or the accused was the aggressor and in case it is found that the complainant was the aggressor then whether the act of the complainant and his relatives was such as would have caused reasonable apprehension of death or grievous hurt in their mind justifying their action which resulted in death of one person and injuries to the another on the prosecution side, as one taken in the exercise of their right of private defence and whether the prosecution did not come with clean hands and made deliberate effort to conceal the injuries on the side of the accused and it''s impact on the credibility of the prosecution case P.W. 2 Rajinder and Subedar Singh the two eye-witnesses deposed that the deceased Sohan had erected a barrage on the western side of his field which was adjacent to the Gram Sabha land to protect his field from being flooded by rain water which accumulated on the adjoining Gram Sabha land. The barrage was demolished by Udai Vir when he went to his field at about 2.00 P.M. on 2.8.1980 when he found that as a result of the raising of barrage the cow-dung cakes and the straw which he had kept on the gram sabha land was facing imminent threat of getting washed away. According to the prosecution version when the deceased along with Chhammo and his brother-in-law Ranjit reached his field, he saw the accused persons diverting the water by cutting the barrage and when Sohan asked them to refrain from their act and started re-erecting the barrage, he and his brother-in-law were attacked by the accused by spears and Lathis.

According to defence version Chet Ram, Lakhpat and Harvir were not present on the spot while accused, Jag Vir, Udai Vir and Chhattar Pal denied the incriminating circumstances appearing against them. The accused Udai Vir in his written statement alleged that after it had stopped raining on the day of the incident he had reached place of occurrence at about 2.00 P.M. and he saw that on account of a barrage being raised by the deceased Sohan to save his maize crop of his field from being washed away from rain water the cow dung cakes which he had collected on the Gram Sabha land adjoining the filed of deceased were likely to be washed away by rain water, he demolished the barrage whereupon Sohan along with his sons Naresh and Sukhi, brother Ranjit and brother-in-law Rajendra started quarrelling with him and upon hearing arguments Udai Vir''s brother Vir Singh and Tej Singh also reached on the spot and when Sohan and his sons, brother and brother-in-law started re-erecting the barrage Udai Vir and his brothers tried to stop them whereupon Sohan and his sons, his brother and brother-in-law attacked them with Lathis and spears and in the meantime, Udai Vir''s other brother Mahaveer who had also arrived at the place of incident also received injuries and Mahaveer and Teja who were wielding spear and Lathi in self defence, hit Sohan and Rajinder with their respect weapons.

From the side of the prosecution one person Sohan died and the other Rajinder sustained injuries. On the side of the defence four persons namely, Udai Vir, Vir Singh, Teja (Tej Pratap) and Mahavir received injuries. Injury reports of Udai Vir, Vir Singh, Teja are on record as Ext. Kha-1, Kha-2 and Kha-3. Although the injury report of Mahavir is not on record injuries received by him were proved by D.W. 3, Dr. D.B. Singh.

The record further shows that when Mahaveer had gone to lodge his first information report along with the three persons injured in the incident namely, Udai Veer, Vir Singh, and Teja, their injuries were recorded in the G.D. and they were sent for medical examination. Although Mahavir was not sent for medical examination his injuries were examined on the next day.

According to the post-mortem report of the deceased Sohan two ante-mortem wounds were found on his body, one on his chest which was incised wound and other was abrasion on the upper part of the abdomen. The injury report of the injured Rajinder shows that he received following injuries.

(1) incised wound 3.5cm � 0.5cm scalp deep on the left side of Paretal region of head 7.5cm. above the left ear. Inj. Kept under observation.

(2) Complained pain on the lower 1/3 of back but no external Inj. seen.

The injury No. 1 was advised to be kept under observation and was stated to be simple.

From the above, it is established that the deceased Sohan and the injured from the prosecution side had received only one injury each which can be said to have been caused by the weapons which the accused were allegedly carrying. The second ante-mortem injury shown in the post-mortem report of the deceased which has been described abrasion could not have been caused by the weapons which were assigned to the accused persons and may have been received by the deceased as a result of his falling on the ground after being struck by the spear. The injured Rajinder received only one external injury injury which was stated to be simple and no X-Ray was advised. Although P.W. 4 Dr. A.C. Manchanda who had examined the injuries of the injured from the side of the prosecution as well as the accused tried to explain in his cross-examination that the injury sustained by the injured Rajinder could have resulted in his death, however he failed to give any satisfactory explanation as to why this fact was not mentioned in the injury report of Rajinder prepared by him. It is also undisputed that the injury of Rajinder was no X-rayed and there is no supplementary report of the injury of injured Rajinder. Thus, it can safely be inferred that the injury which was allegedly inflicted upon Rajinder was neither dangerous to life nor grievous but was simple in nature.

We may now examine the injuries received by accused and two other persons from the side of the accused.

Udai Veer received following injuries

Incised wound 1cm � 1/2cm z muscle deep on the left side chest 1cm inside nipple

Incised wound 1cm � 0.2cm � skin deep on the left side of chest 5.5cm below the injury No. 1.

Incised wound 3.2cm � 1.2cm � muscle deep on the left arm upper and 4cm from shoulder joint

Swelling 7cm � 4cm on the lateral side of right elbow joint.

Complaint of pain on whole of the back but no external injury seen.

Injury No. 1 was advised to be kept under observation while other injuries were stated to be simple. Injuries 1st, 2nd and 3rd were stated to be caused by sharp weapon and the other by blunt weapon.

Injuries of Veer Singh are as follows:

Incised (Y) shaped injury 1/2cm � 0.3cm � 2cm on the right side of neck with swelling in the area of 8cm � 2.5cm above the clavicle. Injury kept under observation.

Traumatic swelling 9cm � 4.5cm on the right forearm, 9cm below elbow joint.

Complaint of swelling on the left arm but no external injury seen.

Incised wound 1cm � 0.4cm on the left side of chest its upper 1/3, 4.5cm from shoulder joint.

Injury No. 1 was advised to be kept under observation other injuries were said to be simple. Injury No. 1 and 4 were said to have been caused by sharp weapon and other by blunt weapon.

Injury report of Teja shows following injuries:

Lacerated wound 2cm � 0.3cm � scalp deep on the right side of head parietal region 8.5cm from right ear.

Incised wound 2cm � 0.2cm on the left forearm the inner lateral side 13cm from wrist joint.

Contusion (red) 2.5cm � 2cm on the right side chest upper 1/3, 4cm from shoulder joint.

Complaint of pain on the left thumb but no external injury seen.

All the injuries were stated to be simple in nature caused by blunt weapon except injury No. 2 which was caused by sharp weapon.

D.W. 2 Dr. M.K. Goyal who had examined the injuries of Udai Vir and Vir Singh proved the injuries of Udai Vir and Vir Singh and deposed that he had advised X-Ray of the injuries of both Udai Vir and Vir Singh. Dr. H.U.K. Zuberi who had X-rayed the injuries of Udai Vir and Vir Singh proved the X-ray reports and further stated in his cross-examination that the injuries received by the appellants was sufficient to cause death. D.W. 3 Dr. D.B. Singh proved the injuries received by Mahaveer Singh on his head, right and left shoulders. In his cross examination D.W. 3 denied the suggestion of the prosecution that the injuries were superficial or manufactured. Thus, in view of the aforesaid discussions it cannot be said that no-one was injured from the side of the accused or the injuries received by the accused were superficial or manufactured.

Another interesting feature of the case is that although the accused in their first information report had stated that there had been (Marpeet) between the parties in which both sides received injuries but the complainant in their first information report did not mention the injuries sustained by the accused nor any explanation came forth from the prosecution side for the injuries received by the accused. It is also noteworthy that the first information report lodged by Naresh does not nominate Teja (Tej Pratap) and Mahavir both of whom received injuries in the incident although in the first information report of the cross version the injuries caused to the deceased and the injured were attributed to Teja and Mahavir.

In view of the above discussions, it is established that at least four persons were injured on the side of the accused and one person died and another received injuries from the side of prosecution but the prosecution did not furnish any explanation for the injuries sustained by the accused persons. A belated attempt to explain the injuries received by Udai Vir and Vir Singh was made by P.W. 2 Rajinder and P.W. 3 Ranjit by testifying that when the accused Chhattar and Jagveer had attacked the deceased with spears, Rajinder ran to save him whereupon Viru and Rajinder delivered Lathi blows on his head and Lakhpat attacked him with spear and at this point of time he snatched the spear from Lakhpat and attacked Viru and Udai Vir with spear causing injuries to them. In his cross-examination P.W. 2 admitted that he had not informed the Investigating Officer that he had caused spear injuries to Udai Vir and Vir Singh P.W. 3 Subedar Singh the other eyewitnesses also in his deposition admitted that he did not disclose to the Investigating Officer that Rajinder had caused spear injuries to Vir Singh and Udai Vir. No explanation has come forth in their testimony as to why the factum of Rajinder having caused spear injuries to Udai Vir and Vir Singh was concealed. The above conduct of the prosecution witnesses in fact shows that they have not given a true and correct account of the incident and it is not safe to rely on their testimony. There is nothing in the prosecution evidence which may indicate that the barrage had been raised by the deceased Sohan on his own land and thus its destruction by the accused could have neither given the complainant the right to either re-erect the same on the Gaon Sabha land or to assault the accused on their stopping the complainant from proceeding to re-erect the same. In fact, from the judgment of the Sessions it transpires that the Barrage had been erected by the deceased on Gram Sabha land. Thus, the question which would arise is as to whether the Sessions Judge was right in holding that the demolition of the barrage by the accused persons erected by the deceased on Gram Sabha land, which had resulted in divergence of water which had accumulated on the adjoining Gram Sabha land into the field of the deceased-Sohan thereby causing damage to his maize crop, amounted to committing an act of criminal mischief or criminal trespass in respect of deceased''s property giving right to the deceased Sohan and his relatives to assault the accused persons and inflict injuries on them.

The Sessions Judge in our opinion, completely misdirected himself while holding the accused-appellants to be the aggressors and totally failed to consider the impact of the deliberate and consistent effort on the part of the prosecution to suppress its aggression on the credibility of the prosecution version. The Sessions Judge appears to have been swayed towards accepting the prosecution case to be true by the fact that a fatal injury had been caused on the prosecution side whereas the injuries suffered by accused were much less in gravity. The view taken by the Sessions Judge, we are constrained to observe, cannot be sustained. It is true that the burden of establishing the plea of self defence is on the accused but the accused need not prove beyond all reasonable doubts, the plea of private defence and the burden stands discharged by showing preponderance of probabilities in favour of that plea as the basis material available on record.

In the present case, the accused in our opinion discharged their burden by proving that they had received injuries and the imminence of threat to their safety.

After carefully scrutinising the evidence on record and considering the entire facts and circumstances of the case and the settled legal position on the issue we find that the Sessions Judge erred in holding the accused persons to be the aggressors and thereby convicting them for the offence with which they were charged. From the material on record and the facts of the case it is apparent that the incident was neither preplanned nor pre-meditated. Both the sides were armed and there was a scuffle as a result of sudden provocation in which both the sides received injuries. Although unfortunately one person died from the side of the prosecution but in our opinion, the prosecution has failed to prove beyond reasonable doubt that the appellants were aggressors as the number of injuries on the persons of accused which far exceeded those received by the deceased and the injured on the prosecution side have not been satisfactorily explained and in fact a deliberate attempt has been made to conceal the true facts and the manner in which the occurrence took place. No explanation has been furnished by the prosecution for not examining eyewitness Chhammo whose statement was recorded by the Investigating Officer u/s 161 Cr.P.C. and who was a material witness of fact. Number of injuries on the person of deceased and the injured from the prosecution side belies the active involvement of seven persons in the incident as alleged by the prosecution. Further, demolition of the barrage erected by the deceased on Gaon Sabha land, by the accused in our opinion, did not amount to committing an offence of criminal trespass against the property of the deceased for the simple reason that the barrage was not erected on the deceased''s property but on the Gaon Sabha land and in case, the accused were assaulted by the deceased and his relatives when they stopped the deceased from re-erecting the barrage on the Gaon Sabha land, their act of retaliation can not be termed as aggression.

The prosecution did not furnish a plausible explanation for the injuries received by the injured and suppressed the injuries sustained by the accused in the first information report as well as in the statements of the witnesses recorded u/s 161 Cr.P.C. P.W. 1, P.W. 2 and P.W. 3 in their cross examination admitted the fact that the injuries had been caused to Udai Vir and Vir Singh by Rajinder but they did not disclose this fact either in the first information report or to the Investigating Officer. The theory of snatching the spear from Udai Vir by injured P.W. 2 Rajinder after the lethal blow had been struck to the deceased Sohan and injuries had been caused to Rajinder informed Rajinder inflicting injuries to Udai Vir and Vir Singh with the same spear which was introduced for the first time by the prosecution witnesses in their cross examination does not inspire confidence and appears to be an afterthought. Prosecution has failed to give any explanation for injuries received by Teja and Mahaveer and has in fact suppressed their participation in the incident. It is apparent that the prosecution has not come with clean hands and throughout there was an effort on behalf of the prosecution to suppress its aggression. It has been held by the Apex Court in the case of Tara Chand and Another Vs. State of Haryana, Gopal and Others Vs. The State of Rajasthan, Delhi Special Police Establishment, New Delhi Vs. Lt. Col. S.K. Loraiya, Biran Singh and Others Vs. The State of Bihar, and Ravulappalli Kondaiah and Others Vs. State of Andhra Pradesh, that when the prosecution has not explained the injury on the person of the accused satisfactorily, it is helpful in making the plea that the accused acted in exercise of his right of private defence. Thus in view of the above, we have hesitation in holding that the appellants acted in exercise of their right of private defence.

For the aforesaid reasons, we are of the opinion that the conviction of the appellants namely, Jagvir, Lakhpat, Udai Vir, and Chhattar Pal under Sections 148, 307 and 149 I.P.C. and Sections 302 and 149 I.P.C. and conviction of accused-appellant Chet Ram, Har Vir and Vir Singh under Sections 147, 307, 149 and Sections 302 and 149 I. P.C. vide Judgment and order dated 27th February, 1982 passed by the IV Additional Sessions Judge, Bulandshahar in S.T. No. 28 of 1981 State v. Jagvir and Ors. cannot be sustained and the same is set-aside.

The criminal appeal is allowed, the impugned Judgment dated 27th February, 1982 passed by IV Additional Sessions Judge, Bulandshahar is set aside. The appellant No. 3, Chet Ram, appellant No. 6, Vir Singh and appellant No. 7, Chhattar are acquitted of the offence for which they were convicted. The appellants are on bail. They need not surrender.

Let the copy of this Judgment along with trial court record be sent to the Court concerned for necessary action.