Kapil Muni and others vs State of U. P.

Vinod Prasad, J.—Father Rama Shankar (A-l) and his two sons Kapil Muni (A-2) and Kapil Deo (A-3) are aggrieved by their conviction u/s 326, I.P.C. and imposed sentence of six months R.I., recorded by the IIIrd Additional Sessions Judge, Basti in Sessions Trial No. 150 of 1974, State v. Kapil Mani and others, vide impugned judgment and order dated 27.7.1976, and therefore, have knocked the door of this Court, u/s 374 (2). Cr. P.C. by preferring Instant appeal, questioning their aforementioned conviction and sentence. Prosecution case, in nutshell, as is contained in written F.I.R. Exhibit Ka-1 and Chick F.I.R. Ext. Ka-8 Indicate that since last more than a decade, flowing of drainage water was an apple of discard between the families of informant Durga Prasad Pandey, r/o village Hirdayajot. P. S. Kotwali, District Basti. P.W. 1, and his next door neighbour A-l, who both were collaterals. A-l wanted drain to flow from the plot and land of P.W. 1 because of which dispute existed. Motivated by aforesaid discard, on 6.12.1972 at 5/6 a.m.. appellants A-l to 3, were erecting a mud wall obstruction adjacent to the Dhari of P.W. 1, which was objected to by Smt. Kalpa Devi, informant''s mother, on which A-l to 3 started abusing her. Commotion attracted P.W. 1, his brother Ram Keval, wife Shobha Devi, elder sister-in-law (Bhabhi) Sona Devi at the scene, who all challenged the appellants by questioning as to why they were digging wall and abusing as well, on which A-l Instigated, and then he alongwith others A-2, A-3, Shiv Shankar. Lallu, Lallan, wife of Rama Shankar, Vishwanath. Radhey Shyam, Ghanshyam, arrived at the scene and started assaulting prosecution side with lathi, ballam, spade, bricks and stones. Informant and his family members raised alarm which attracted witnesses Ram Lal Koiri, Dularey Koiri, Kanahai, Deen Dayal Tripathi, Ram Shabd. Ram Ashish and many others at the scene of the incident. Spotting witnesses, accused sprinted away from the occurrence spot. Informant Durga Prasad Pandey P.W. 1 thereafter scribed F.I.R. Exhibit Ka-1, and after covering a distance of 4 miles got it registered at P.S. Kotwali at 8.15 a.m. same day, as Crime No. 804/72. under Sections 147, 148, 149, 323, 307, I.P.C. vide chik F.I.R. Exhibit Ka-8, prepared by head constable Laxmi Shankar Dubey, P.W. 4, who had also penned down G.D. entry Exhibit Ka-9.

From the prosecution side five persons had sustained injuries in the incident and were examined on 6.12.1972 by P.W. 3, Dr. D. P. Mukherjee. Durga Prasad Pandey was examined at 8.45 a.m.. Ram Keval Pandey at 9 a.m.. Kalpa Devi at 10 a.m. Smt. Sona at 1.45 p.m. and Smt. Shobha Devi at 1.50 p.m. vide Exhibits Ka-3 to Ka-7, facts noted in those medical examination reports, in a seriatim, were as follows :

Ext. Ka-3

Durga Prasad Pandey s/o Bhawani Bheek Pandey, 28 years, r/o Herdaijot B/B Cont. No. 209 Ram Singhasan Yadav, P.S. Kotwali District Basti.

M/o Black mole Rt pinna ear AMI:

(1) Abrasion 3 c.m. x 2 m.m. Bridge of Nose 1 cm.

(2) Abrasion 3 cm. x 0.5 cm. on the outer and lower part of Lt. fore arm.

(3) Contusion 5 cm. x 1.5 c.m. Lt. upper arm upper third outer aspect oblique.

(4) Abrasion 1 cm. x 0.5 cm. Back of Rt. elbow.

(5) Incised wound 2 cm. x 0.3 c.m. x 0.3 c.m. upper and outer part of Rt. thigh

20 c.m. above Rt. knee oblique tailing medially produces a linear abrasion 5 cm. long

(6) Incised wound 1.5 c.m. x 0.4 c.m. x 0.5 c.m. Rt. leg middle 13 c.m. below Rt. knee, outer aspect, transverse. No Tailing.

injuries all fresh, injuries all simple. No. 1. 2, 4 by friction. No. 3 by Blunt weapon. No. 5, 6 by Sharp Weapon.

6.12.1972

Ext Ka-4

Ram Kewal Pandey, 22 yrs, s/o Bhawani Bheek Pandey r/o Herdaijot B/B Cont. No. 209 Ram Singhasan Yadav. P.S. Kotwali District Basti

M/o Black mole Rt Cheek middle

AMI:

(1) Incised punchered wound 5 m.m. x 3 m.m. x not proped due to medical grunds broon part of Sternem + 16 cm. above umbilicus. Transverse.

(2) Incised wound 5 c.m. x 1cm. x Bone cut on Rt. hand dorsal aspect upper side. Tailing upper ds + outwards, (just above the roof of little ring and middle finger). No X-ray.

(3) Abrasion 1.5 cm. x 1 cm. dorsal aspect of left thumb middle.

(4) C/o of Pam back. No mark of injury present.

All injuries fresh (red bleeding), No. 1 and 2 and No. 3 simple. No. 1 and 2 by sharp object. No. 3 by friction.

6.12.1972

Ext. Ka-5

Kalpa Devi 65 years, w/o Bhawani Bhikh Pandey

AMI:

(1) Lacerated wound 1.5 cm. x 0.5 cm. x.3 cm. on the top of head 14 cm. above right ear. 7 cm. above roof of nose vertical.

(2) Lacerated wound 2 cm. x.3 cm. x.3 cm. on the head 3 cm. front of injury No. 1 vertical.

(3) Lacerated wound.6 cm. x.4 cm. x.3 cm. on the right side back of head 10 cm. above right ear and 4.5 cm. below injury No. 1.

(4) Abrasion 5 cm. x 1.5 cm. on the right side back of chest 2 cm. below injuries angle of right scapula.

(5) Abrasion.5 cm. x.3 cm. on the top of right shoulder.

(6) Incised wound 1 cm. x.4 cm. x.2 cm. on the upper and front part of left leg

1 cm. below right knee. Transverse. No.

All injuries fresh (red blooding). All injuries simple No. 1 to 3 by blunt weapon. No. 4 by fiction. No. 6 by sharp weapon.

Ext. Ka-6

Sobha Devi 22 years

AMI:

(1) Abrasion 4 cm. x 1 cm. middle of left upper arm front 5 cm. above elbow front.

(2) Abrasion 3 cm. x 1.5 cm. front of Lt. forearm 4 c.m. below Lt. elbow.

(3) Abrasion 3.5 cm. x 1.3 cm. front of neck lower part. All injuries fresh (red). All injuries simple. All by friction

Ext. Ka-7

Smt. Sona 25 years, w/o Ram Ajor Pandey

AMI:

(1) Abrasion 1 cm. x.5 cm. right side forehead 4 cm. above Rt. eyebrow.

(2) Abrasion.6 cm. x.4 cm. middle + back of Rt. middle finger.

(3) C/o Pain Rt. shoulder. Np mark of injury present.

Both injuries fresh (red), Both by friction, Both simple

Investigation into the offences was conducted by S.O. C. B. Tripathi, who was not examined during the trial and P.W. 4 proved site plan Ext. Ka-11 and charge-sheet submitted by him Ext. Ka-12.

Since all the appellants were charge-sheeted, they were summoned by the Magistrate, who finding their case triable by Session''s Court, committed it for trial before it. IIIrd Additional Session''s Judge, Basti charged accused for offences under Sections 147, 307/149, 323/149 and 324/149, I.P.C. on 1.3.1976 and since all the accused abjured those charges and claimed to be tried, therefore, to establish their guilt, prosecution commenced trial proceedings.

Prosecution during trial examined four witnesses in all, out of whom informant Durga Prasad Pandey P.W. 1. injured Ram Kewal Pandey, P.W. 2 where the only two fact witnesses. Formal witnesses included Dr. D. P. Mukherjee, P.W. 3 and head constable Laxmi Shankar Dubey P.W. 4.

Accused in their statement u/s 313, Cr. P.C.. pleaded right of private defence and negated prosecution allegations. To substantiate their plea of right of private defence of person and property both, they examined D.W. 2. Dr. S. C, Srivastava. Medical Officer, District Jail, Basti and filed three medical reports of Malti Devi, Kapil Muni Pandey, Ram Shankar as Ext. Kha 1 to 3. They also filed an application Ext. Kha-6 moved by Ram Shankar Pandey to Collector Basti. Injury reports of three injured from the side of accused Ext. Kha-1 to Kha 3, proved by the jail doctor D.W. 1 were as follows :

Ext. Kha-1

Smt. Malti Devi 40 years

AMI:

(1) C/o Pain outer side of upper half of the forearm tenderness present. No other external evidence of injury.

(2) Complaining of pain upper part of Lt. thumb and carpo phalangeal joint. No external evidence of injury.

(3) Two abrasions.3 cm. x.1 cm. and 1.5 cm. x.1 cm. situated 1 cm. upper on Rt. side of lower 1/3rd of back, 13 cm. outer to spine scab present.

(4) Contusion 2 cm. x.5 cm. on the front of Lt. knee joint. Colours black directions oblique.

Opinion

Injury No. 3 has been caused by friction against rough surface. Injury No. 4 has been caused by some blunt object. Duration about two days, nature of injury simple.

Ext. Kha-2

Sri Kapil Muni Pandey aged about 17 years

AMI:

(1) Abrasion.5 cm. x.3 cm. on the left side of scalp 6 cm. above the outer side of left eyebrow and 6 cm. from left ear. Scalp present slight swelling around the injury present.

(2) Complaining of pain inner + of left forearm in the lower 1/3rd part. No external evidence of injury.

Opinion

Injury No. 1 has been caused by friction against rough surface. Duration-about two days, nature of injury simple.

Ext. Kha-3

Ram Shanker aged about 50 years

AMI:

(1) Abrasion.7 cm. x.3 cm. on the lower 1/3rd of spine scalp present.

(2) Swelling and tenderness middle 1/3rd of back of left thigh. No external evidence of injury.

(3) Swelling and tenderness 3 cm. x 2 cm. on the inner and back of the left forearm. 4 cm. above the left wrist joint. No external evidence of injury.

Opinion

Injury No. 1 has been caused by friction against rough surface.

Duration-about two days, nature of injury simple."

IIIrd Additional Session Judge, Basti, after critically appreciating prosecution and defence evidences concluded that the prosecutions has not been able to establish charges against seven of the accused and therefore, acquitted all of them, namely Shiv Shankar, Lallu, Lallan. Smt. Malti Devi. Radhey Shyam, Vishwanath, and Hari Shyam. from all the charges. Trial Judge also disbelieved prosecution version in respect of commission of crimes under Sections 147. 307/149, 323/149 against all the accused and, therefore, acquitted all them of those offences. However it held that guilt of appellants u/s 326, I.P.C. is established to the hilt beyond any shadow of doubt and, therefore, convicted and sentenced them as mentioned above in the opening paragraph in this judgment. Challenge to the aforesaid conviction and sentence is in this appeal.

The appeal was filed in this Court in the year 1976 and when it was called out for hearing, nobody appeared from the side of the appellants to argue the appeal on their behalf and hence, not to further delay final hearing of appeal, and in consonance with Apex Court decision in State of U. P. v. Bani Singh, AIR 1996 SC 2368, Sri Devendra Mohan Singh was appointed amicus curiae to argue the appeal on behalf of appellants.

I have heard Devendra Mohan Singh, learned amicus curiae in support of this appeal and Sri Patanjali Mishra, learned A.G.A. for the respondent State. Castigating and criticizing impugned judgment following submissions were raised by learned amicus curiae;

Firstly, that prosecution has not properly explained injuries sustained from appellant''s side including ladies and, therefore, prosecution witnesses suppressed the genesis of the incident and are not reliable;

Secondly, that none of the five named independent witnesses cited in the F.I.R. appeared in the Court to corroborate prosecution story and this indicate that prosecution version is not true;

Thirdly, that only related, partisan, inimical and interested witnesses appeared to support prosecution case and their testimonies are Incredible and, therefore, cannot be attached with any credence;

Fourthly, that accused probabilised their claim of right of private defence both of property and of person and hence their conviction is unsustainable and they are entitled for the benefit of the same;

Fifthly, that conviction u/s 326, I.P.C. is unwarranted as there was only one grievous Injury out of total number of injuries sustained by the prosecution side and that grievous injury has not been attributed specifically to any of the accused and it is not known as to who was the author of that injury and hence, at the worst, appellants could have been convicted u/s 324. I.P.C. and not u/s 326. I.P.C.;

Sixthly, that acquittal of six of the accused erodes genuineness of the prosecution allegations, which is untrue and no reliance can be placed on it;

Seventhly, that all accused were acquitted of charges under Sections 147, 307/149, 323/149 and hence conviction of the appellants u/s 326, I.P.C. cannot be upheld;

Eighthly, that number of accused is not commensurate with number of grievous hurt and, therefore, impugned judgment suffers from legal infirmity in convicting all the appellants u/s 326, I.P.C. simplicitor;

Ninethly, that substantial part of prosecution allegations were disbelieved by the trial court itself and hence it is very unsafe to attach credence to rest of the part and when truth from falsehood cannot be separated, appellants deserves acquittal as there exist no reason to rely upon truncated residue of prosecution allegations;

Tenthly, that it was prosecution side which was the aggressor and appellants acted in right of private defence and consequently conviction of appellants is illegal;

Lastly, it was submitted that incident occurred near about four decades ago, therefore, appellants should not be sent to jail to serve out their jail term, in case they are not acquitted, and period of imprisonment already undergone by them will serve ends of justice as they have been harassed enough for more than three decades.

On the above submissions, it was contended by amicus curiae that appellant''s appeal be allowed and they be acquitted of all the charges levelled against them.

Learned State counsel argued conversely and submitted that impugned judgment is infallible and does not require any interference by this Court. Injured witnesses have testified against the appellants and their presence at the scene of the incident cannot be doubted and hence prosecution has brought reliable evidences on record and hence appeal of the appellant be dismissed. It was further submitted that appellants had no right of private defence and since injuries sustained by the appellants were manufactured, cooked up and simple in nature prosecution was not obliged to explain them. It was further submitted that accused started the incident and they were the aggressors and hence cannot claim right of private defence. F.I.R. is prompt without any delay and hence cannot be castigated as untrue. Medical reports supports prosecution story and hence guilt of the appellants'' stands proved, resultantly appeal by the appellants be dismissed and their conviction and sentence be confirmed.

I have considered raised submissions and have analysed evidences of both the sides. After hearing both the sides and going through evidences there seems to be much substance in appellants'' arguments. From Ext. Kha-6, which is a defence application moved before the Collector by accused Ram Shankar Pandey, four month prior to the present incident. It is evident that accused had informed to the authorities that informant and his other family members were indulging into mischief of blocking drainage of the appellant''s house inundating it. A vacant land was carved out during consolidation proceedings for public use, which public utility land was filled by prosecution side, and flow of water channel route was blocked. This document, therefore, indicates that it was prosecution and not the accused who had obstructed free flow of water. This fact certainly gave right of private defence of property to the appellants as their house was being damaged because of inundation and their easementary rights were violated. Further F.I.R. Ext. Ka-1 itself records that water was flowing since long and accused were only putting mud banks. They cannot be considered to be aggressor because of that reason. From the appellants side, ladles and other persons had also sustained injuries for which no explanation was offered by the prosecution during investigation. Accused have established, on probabilities that, in the same incident they had received those injuries. Defence doctor was not at all suggested by the prosecutor that injuries sustained from appellants side could be self suffered or manufactured. In fact prosecution admitted sustaining of those injuries by accused side in the same incident. Who then was the aggressor? P.W. 1 does not offer any explanation of those injuries. He was suggested that on the date of the incident Ram Shankar and Kapil Muni were cleaning drainage on which they were assaulted and when wife of Ram Shankar tried to stop the assault she was also belaboured. P.W. 2 also denied having caused any injury to the accused side. On such evidences it remains established that prosecution has not offered any explanation of the injuries sustained by the accused side in the same incident. Consequently, only three conclusions can be drawn from admitted facts, one, that genesis of the incident is shrouded in mystery, two, who was the aggressor is not known and three, that prosecution witnesses are not wholly reliable. On this aspect a cementing support can be drawn from the Apex Court decision in Lakshmi Singh and others etc. v. State of Bihar, AIR 1976 SC 1736, wherein it has been held by the Apex Court as under:

This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow : (1) that the evidence of the prosecution witnesses is untrue : and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the present case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh and Others Vs. The State of Punjab, , Criminal Appeal No. 266 of 1971 decided on April 25, 1975 which was also a murder case, this Court, while following an earlier case, observed as follows :

In State of Gujarat Vs. Bai Fatima and Another, . (Criminal Appeal No. 67 of 1971 decided on March 19, 1975) one of us (Untwalia, J.) speaking for the Court, observed as follows :

In a situation like this when the prosecution fails to explain the Injuries on the person of an accused, depending on the facts of each case, any of the three results may follow :

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all.

The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.

It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences :

(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of P.Ws. 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus, neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima, AIR 1975 SC 1478. Criminal Appeal No. 67 of 1971 decided on March 19, 1975 there may be cases where the non-explanation of the Injuries by the prosecution may not affect the prosecution case. This principle would obviously apply 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. The present, however. is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises.

In Darshan Singh Vs. State of Punjab and Another, , it has been observed by the Apex Court as under :

When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also settled position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is not a right, to take revenge.

It has further been held in the same decision as under :

This Court in number of cases have laid down that when a person is exercising his right of private defence. It is not possible to weigh the force with which the right is exercised. The principle is common to all civilized jurisprudence. In Robert B. Brown v. United States of America. (1921) 256 US 335. It is observed that a person in fear of his life is not expected to modulate his defence step by step or tier by tier. Justice Holmes in the aforementioned case aptly observed "detached reflection cannot be demanded in the presence of an uplifted knife

According to Section 99 of the Indian Penal Code the injury which is inflicted by the person exercising the right should commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right every reasonable allowance should be made for the bona fide defender. The Courts in one voice have said that it would be wholly unrealistic to expect of a person under assault to modulate his defence step by step according to attack.

After referring to catena of earlier decisions, law on right of private defence has been summarized in the following terms by the Apex Court:

The following principles emerge on scrutiny of the following judgments :

(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 coterminus 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 Indian 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."

Accused on probability has established their case by tendering evidence of Dr. S. C. Srivastava and filing of injury reports Ext. Kha-1 to 3. This aspect of the matter is sufficient to give benefit of doubt to the accused-persons. Further defence application Ext. Kha-6 is supported by P.W. 2 himself and he on the last portion of page 4 of the deposit admitted that they had blocked the cannel dug by the accused for free flow of water. In such a view, the application Ext. Kha-6 moved by the accused appellant Ram Shankar is supported by own deposition of P.W. 2. If a person committed mischief, other side has a right to defend it''s property.

There are other damaging features of prosecution evidences, which indicates incredibility of prosecution story. P.W. 1 and P.W. 2 both attributed role of causing ballam and spade Injuries to P.W. 2 to Vishwanath and Ghanshyam but both of them were acquitted. It is surprising that acquittal of Vishwanath was not challenged in any higher Court and has attained finality. Trial court found their participation in the crime false. This erodes credibility of testimonies of both the fact witnesses P.W. 1 and 2 to the maximum extent. Further no independent witness came forward to support prosecution story and hence entire prosecution edifice rests on testimonies of only related inimical, interested, partisan and untruthful witnesses. Since enmity is admitted to both the sides and it is a double edged weapon, therefore, scrutiny with great care and caution has to be done, otherwise chances of errors cropping up in opinion is very eminent. Analysed from such an angle defence of the appellants seems to be quite possible.

Further none of the three appellants have been attributed any role specifically to have caused any Injury to P.W. 2, and therefore, their conviction u/s 326, I.P.C. is not sustainable. At this point it is also worth noting that there was single grievous injury sustained by only one person from the prosecution side and number of assailants outnumbered it by more than ten times and when it was not brought In evidences as to who was the author of that Injury, conviction of appellants u/s 326 simplicitor could not have been recorded nor the same can be maintained as the offence will not be outside purview of Section 324, I.P.C. This view is supported from Apex Court decision in Babu Singh and others v. State of Haryana, 1995 Cr LJ 2630, wherein it has been held by the Apex Court as under :

The injury from which murderous assault could be spelt out was attributed to Lila Singh. The other Injuries on the injured persons were simple in nature. It is difficult, in the facts and circumstances of this case, to conclude that all the four accused had common intention of murderous assault on the P.Ws. It can otherwise be spelt out that they had a common intention but of a lesser offence, i.e., u/s 324. I.P.C.

Applying above law conviction of the appellant u/s 326. I.P.C. recorded by the trial court is not sustainable and hence has to be set aside.

Wrapping up the discussion this appeal is allowed and conviction and sentence of the appellants are hereby set aside and they are acquitted of the charge levelled against them. They are on ball, they need not surrender, their personal and surety bonds are discharged.

Copy of this judgment be certified to the trial court for it''s intimation.