Lakhan Singh and Others vs The State

Dharam Veer, J.—This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 6th January 1988 passed by the Sessions Judge, Tehri Garhwal in Sessions Trial No. 19 of 1985 State v. Lakhan Singh and 5 Ors., whereby the learned Sessions Judge has convicted the accused/appellants Rai Singh and Lakhan Singh for the offence punishable u/s 147, 307/149, 323/149, 452 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced both the accused to undergo rigorous imprisonment for a period of one year''s u/s 147 I.P.C., 4 year''s rigorous imprisonment for the offence punishable u/s 307/149 I.P.C., six months'' rigorous imprisonment for the offence punishable u/s 323/149 I.P.C. and 2 years'' rigorous imprisonment for the offence punishable u/s 452 I.P.C. It is directed that all the sentences shall run concurrently. The accused/appellants Smt. Bishni Devi, Smt. Sureshi Devi, Smt. Bharosi Devi and Km. Munni Devi were convicted u/s 147, 307/149, 323/149 I.P.C. and sentenced to each of them to undergo rigorous imprisonment for a period of one year''s u/s 147 I.P.C., 4 years'' rigorous imprisonment for the offence punishable u/s 307/149 I.P.C and six months'' rigorous imprisonment for the offence punishable u/s 323/149 I.P.C. It is directed that all the sentences shall run concurrently.

The prosecution case, in brief, is that PW-2 Bhola Singh has lodged the report Ext. Ka-1 to the Patwari, Patwari Kshetra Chherap Dhar, Patti Raika, Tehri Garhwal with the averments that the incident said to have been taken place on 12.05.1984 at about 9:00-9:30 p.m., in village Kiwali, Tok-Dangirah. On hearing noise of weeping and screams, 10 to 12 persons reached to the place of occurrence where they saw that Buddhi Singh was lying unconscious in injured condition in his courtyard. There were multiple injuries on his head and body. Son and wife of the injured Buddhi Singh, namely, Tikam Singh PW-3 and Smt. Surma Devi were also injured and blood was oozing out. Tikam Singh has told to him that the accused persons, namely. Lakhan Singh, Rai Singh, Bishni Devi, Sureshi Devi, Km. Munni and Bharosi Devi, had inflicted injuries to them with Sickle. With the same averments the informant PW-2 Bhola Singh lodged the written report Ext. Ka-1 on 13.05.1984 at 4:00 p.m. at the Patti Patwari-Chherap Dhar, Sub District Tehri and on the basis of written report the Patti Patwari prepared the Chik First Information Report Ext. Ka-2 and a case crime No. 1/1984 u/s 307, 325, 323, 147, 452 I.P.C was registered against the accused/applicants and entry in this regard was made in the G.D. Copy of the G.D. is Ext.Ka-3.

The injured Buddhi Singh was medically examined by the Medical Officer PW-5 Dr. H.K. Sharma at Civil Hospital, Tehri Garhwal on 13.05.1984 at 1:30 a.m., the injury report is Ext. Ka-4. And on the basis of X-Ray report, the Medical Officer has also prepared the supplementary medical report on 18.05.1984 in regard to the injuries received by the injured Buddhi Singh, which is Ext. Ka-5 on the record. On the same day at 1:30 a.m., the injured Tikam Singh was also examined by PW-5 Dr. H.K. Sharma in Civil Hospital, Tehri, that injury report is Ext. Ks-6 on the record. On the same day at about 1:30 a.m. Smt. Surma Devi w/o of the injured Buddhi Singh was also examined by PW-5 Dr. H.K. Sharma and he prepared injury report Ext. Ka-7.

The Patti PatwariRaulakot, (investigating officer) during the course of investigation, has inspected the place of occurrence and prepared the site plan Ext. Ka-8. The bloodstained cloths, i.e. one underwear and one Baniyan were handed over to Investigating Officer by Tikam Singh and a Fard was prepared, which is Ext. Ka-9 on the record. An iron Sickle was recovered by the I.O. through Tikam Singh and a Fard was prepared which is Ext. Ka-10. During the course of investigation, the Investigating Officer has recorded the statement of the witnesses and after completion of the investigation, the I.O. submitted charge sheet against the accused/appellants u/s 307/452/326/147/323 I.P.C. that charge sheet is Ext. Ka-11.

Learned Chief Judicial Magistrate, Tehri Garhwal on receipt of the charge sheet, after giving necessary copies to the accused persons as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 25.06.1985 u/s 209 Cr.P.C.

On 03.07.1986, the learned Sessions Judge, Tehri after hearing the parties framed the charge of offence punishable u/s 147, 307/149, 323/149 and 452 I.P.C. against the accused persons. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried.

The prosecution, to prove its case, has examined PW-1 Buddhi Singh-the injured witness, PW-2 Bhola Singh-complainant of the case, PW-3 Tikam Singh-the injured witness, PW-4 Mangal Singh Raja-Patwari of the circle and I.O., PW-5 Dr. H.K. Shrama-who has medically examined the injured and the appellant-accused Lakhan Singh and PW-6 Satya Prasad Sharma-Investigating Officer of the case.

The oral and documentary evidence was put to the accused persons in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against them. In reply to the question No. 12, the accused Lakhan Singh has stated that on 12.05.1984 at 9:30 p.m. he was returning to his house after irrigating his field and just he reached at his courtyard; Buddhi Singh armed with a gun and Tikam Singh and Surma Devi armed with Lathies had attacked on him. Buddhi Singh shot at him but it was missed. Bhola Singh pelted stones on him from the roof of the old house. Anyhow saving his life, he had gone to his house. On 13.05.1984 he had gone to Tehri and was medically examined by the doctor and on 14.05.1984 he lodged a first information report. The accused Rai Singh in reply to the question no.12 has stated that at 9:00 p.m. he was looking after his grandson at his verandah. After hearing noise of Buddhi Singh, Surma and Tikam Singh, he came at his courtyard. Buddhi Singh had fired on Lakhan Singh with his gun and Surma Devi and Tikam Singh had attacked on Lakhan Singh with the Lathies. In the meanwhile Bhola Singh also reached at the place of incident and he pelted stones (slates). On making noise, these persons had fled from the place of incident. The accused persons, namely, Smt. Bishni Devi, Smt. Sureshi Devi, Smt. Bharosi Devi and Km. Munni Devi have denied the allegations made against them. In their defence, the accused/appellants have filed the injury report of Lakhan Singh Ext. Kha-1, compromise Ext. Kha-2, First Information Report given by Lakhan Singh to the S.D.M., Tihri, Pratapnagar, Tehri Ext. Kha-3, certified copy of the judgment dated 14.02.1983 passed by the Munsif Magistrate, Tehri Garhwal Ext. Kha-4 and certified copy of the report submitted by the Patwari for taking action against the accused Buddhi Singh and others u/s 107/116 Cr.P.C. Ext. Kha-5.

After appreciating all the evidence available on record and hearing the learned Counsel for the parties, the learned Sessions Judge convicted the accused/appellants Rai Singh and Lakhan Singh for the offence punishable u/s 147, 307/149, 323/149, 452 I.P.C. and sentenced both the accused to undergo rigorous imprisonment for a period of one year�s u/s 147 I.P.C., 4 year''s rigorous imprisonment for the offence punishable u/s 307/149 I.P.C., six months'' rigorous imprisonment for the offence punishable u/s 323/149 I.P.C. and 2 years'' rigorous imprisonment for the offence punishable u/s 452 I.P.C. It is directed that all the sentences shall run concurrently. The accused/appellants Smt. Bishni Devi, Smt. Sureshi Devi, Smt. Bharosi Devi and Km. Munni Devi were convicted u/s 147, 307/149, 323/149 I.P.C. and sentenced to each of them to undergo rigorous imprisonment for a period of one year''s u/s 147 I.P.C., 4 years'' rigorous imprisonment for the offence punishable u/s 307/149 I.P.C and six months'' rigorous imprisonment for the offence punishable u/s 323/149 I.P.C. It is directed that all the sentences shall run concurrently. Aggrieved with the impugned judgment and order the accused/appellants have preferred the present appeal.

I have heard Sri S.K. Aggarwal, learned Senior Counsel assisted by Sri S.S. Bhandari, learned Counsel for the accused/appellants and Sri Prabhakar Joshi, learned Brief Holder for the State.

Before further discussion, it is pertinent to mention the injuries found in the person of the injured Buddhi Singh. The injured Buddhi Singh was medically examined by the Medical Officer PW-5 Dr. H.K. Sharma at Civil Hospital, Tehri Garhwal on 13.05.1984 at 1:30 a.m., the injury report is Ext. Ka-4. The following injuries were found on the person of the injured Bhddhi Singh:

Incised wound on left side of forehead, just above the left eye, running upward and medially. Measuring 5cm. x bone deep x 2cm. gaping in between. Fresh bleeding present. Margins clean cut;

Incised wound on left side of forehead, 3cm. above the injury no.1 measuring 4cm. x bone deep x gaping 1cm in between. Running horizontally. Margins clean cut;

Incised wound on left side of skull, 4cm. above and behind left ear, measuring 7 cm. x bone deep x 1cm. gaping in middle, margins sharp cut, running in a semi lunar way, concavity pointing downwards towards left ear;

Incised wound in middle of back of skull, running vertically, measuring 6cm. x bone deep x 0.5cm. gaping in between. Fresh bleeding;

Lacerated wound 2cm. to the right of injury No. 4 3cm. x 2cm. x scalp deep;

Abrasion on middle of left back, on outer side 10cm. linear running downward and forward. Fresh bleeding;

Incised wound on middle of left front of abdomen, on outer side, measuring 6cm. x muscle deep x gaping 2cm., clean cut margins;

Incised wound on back of left thigh, 9cm. above knee joint, 9cm. x 2cm. x muscle deep. Clean margins;

Contusion on outer aspect of left forearm, 4cm. below elbow joint measuring 10cm. x 8cm., bluish black in colour;

Marked swelling(contusions) on both the lips, bluish black in colour;

Marked swelling (contusions) on both the upper and lower eye lids of both the eye. Patient unable to open his eyes;

General condition of the patient was low. Blood pressure was (80/60). The patient was admitted in the hospital. X-Ray of skull i.e. injuries 1 to 4 was advised. In the opinion of the doctor, all the injuries were fresh. Injury Nos. 1 to 5, 7 and 8 were caused by some sharp edged weapon; and injury Nos. 6 & 9 10, 11 were caused by some hard blunt object. Injury Nos. 1 to4 were kept under observation. Injury Nos. 5 to 10 were simple in nature.

On the basis of X-Ray report, the Medical Officer has also prepared the supplementary medical report on 18.05.1984 in regard to the injuries received by the injured Buddhi Singh, which is Ext. Ka-5 on the record. In the supplementary report, the Medical Officer PW-5 has found fractured line in left temporal region. Starting from just above left ear, running upward and medially for 3cm., then medially and downward for 7 cm. reaching upto midline. Lateral view shows fracture line corresponding with(A) running from mid part to upwards and backwards. Measuring about 8cm. Injury Nos. 3 & 4 grievous in nature. Injury Nos. 1 & 2 simple in nature.

On 13.05.1984 at 1:30 a.m., the injured Tikam Singh was also examined by PW-5 Dr. H.K. Sharma in Civil Hospital, Tehri, that injury report is Ext. Ks-6 on the record. The following injuries were found in the body of the injured Tikam Singh:

Contusion 4 cm. above right knee joint, medially and forward, measuring 10cm. x 5cm., bluish black in colour. Abrasion on the overlying skin present. Fresh bleeding present;

Contusion bluish black in colour on right side of waist, measuring 8cm. x 3.5cm. About 6cm. above hip bone. Abrasion overlying skin. Fresh bleeding present.

It is opined that these injuries were simple and caused by hard blunt object. Duration fresh.

On 13.05.1984 at 1:30 a.m. Smt. Surma Devi w/o of the injured Buddhi Singh was also examined by PW-5 Dr. H.K. Sharma, he prepared injury report Ext. Ka-7. The following injuries were found on the body of the injured Smt. Surma Devi:

Lacerated wound on skull, 20cms above the right eye, measuring 9cm. x 2.4cm., bone deep, margins irregular. Fresh blood present all around;

Lacerated wound on left forearm, 5cm. above the wrist joint, measuring 9cm. x 2cm. x muscle deep. Fresh blood is present, diffuse swelling all around. Wound on outer side of arm;

Lacerated wound on outer side of right arm, 3cm. x 3cm. x muscle deep. Diffuse swelling around. Fresh bleeding present.

It is opined that these injuries were simple in nature, fresh in duration and probably by hard blunt object.

The prosecution to prove its case, first of all, has examined PW-1 Buddhi Singh-injured who has stated that the accused persons Rai Singh, Lakhan Singh, Bishna Devi, Sureshi Devi, Bharosi Devi and Munni Devi, are known to him. House of the accused persons situates at a distance of 100 yards from his house. On 12.05.1984 at about 9:30 p.m. he was at his verandah. His mother Smt. Lakhami Devi, his wife Smt. Surma Devi and his son PW3 Tikam Singh were also present in the house. He was taking meal. A lantern was lit there. At the very moment the accused Rai Singh and Lakhan Singh came at the verandah. At that time the accused Rai Singh armed with an axe and Lakhan Singh armed with a sickle and the accused persons hit at his head with their respective weapons i.e. axe and the sickle. Thereafter the accused persons dragging him, took him at the courtyard where all the accused persons gave beating to him. When his son and wife, namely, Tikam Singh and Smt. Surma Devi tried to save him, they were also beaten by the assailants. On making screams by his wife, mother and children the villagers, namely Bhola Singh (PW-2), Pritam Singh, Khem Singh and Bhaur Singh reached at the place of occurrence. He became unconscious. He regained his consciousness on 14.05.1984 at evening in the hospital at Tehri. The entire incident had taken place due to the enmity, which the accused persons had maintained on account of a litigation going on in respect of drinking water, due to which the accused/appellants had caused injuries to him. He remained in the hospital for 2 to 3 weeks''.

PW-2 is Bhola Singh, who has stated that the appellant/accused are known to him. The house of Buddhi Singh is about 300-400 meters from his house. On 12.05.1984 at 9:00-9:30 p.m. he was at his house. On hearing the noise of weeping and screams, he alongwith 10-12 persons had gone towards the house of Buddhi Singh. Khem Singh, Preetam Singh and Uttam Singh were also with him. Buddhi Singh, in the injured condition was lying at his house in his courtyard. Tikam Singh S/o Buddhi Singh and wife of the injured Buddhi Singh were there. Blood was oozing from the injuries of all the three injured. On asking, Tikam Singh told that the accused/appellants had caused injuries to all of them with Sickle, Lathies and Stones. All the three injured were taken to the hospital. Taking the injury report, he had gone to the Patwari on 13th at 4:00 p.m. and lodged the report, that report is Ext. Ka-1. Medical Report was also given to the Patwari. Buddhi Singh was unconscious at that time. In the cross-examination he has stated that when he reached on the place of occurrence he did not find the accused/appellants there. He lodged the report on the information received through Tikam Singh.

PW-3 is Tikam Singh-the injured, who has stated that the accused/appellants are known to him. The distance between his house from the house of the accused/appellants is 60-70 feet. On 12.05.1984 at 9:00-9:30 p.m. he was reading at the verandah of his house. His mother, father and grandmother were also there. His mother was serving food to his father. His father was also at the verandah. A lantern was lit there. The accused/appellants Rai Singh and Lakhan Singh armed with axe and sickle respectively came at the verandah and had attacked to his father with the axe and sickle. After that his father was dragged to the courtyard and in the courtyard, the rest of the accused persons had inflicted injuries to his father with Lathies. When he himself and his mother had tried to save his father, then the accused persons had also caused injuries to him and his mother also. His father got unconscious. On hearing noise, the villagers, namely, Bhola Singh, Khem Singh, Preetam Singh, Tikam Singh, Kunwar Singh etc. had reached on the place of occurrence. Till then the assailants had fled from the place of occurrence. Then he narrated the incident to the villagers. The villagers took him, his mother and his father to the hospital where there were examined medically. When the Patwari came, then he handed over a sickle to the Patwari. He has further stated that he snatched the sickle from accused Lakhan Singh. The sickle was produced in the Court and is Ext.-1.

PW-4 is Mangal Singh Raja, Patwari Kshetra, Paneja, who has stated that on 13.05.1984 he was posted as such at Chherap Dhar. On that day Bhola Singh has lodged a written report alongwith medical certificate. On the basis of the report, he prepared the Chik First Information Report Ext. Ka-2 and an entry was made in the G.D., copy of the G.D. is Ext. Ka-3. On 14.05.1984 the investigation of this case was transferred to the Patwari Satya Prasad.

PW-5 is Dr. H.K. Sharma Medical Officer, who has stated that on 13.05.1984 he was posted as such at Tehri Hospital and on that day at 1:30 a.m. he had medically examined Buddhi Singh and found the injuries mentioned in para-11 of the above on the body of the injured Buddhi Singh. Condition of the patient was serious. Blood-pressure was 80/60. He was feeling inconvenience in respiration. The patient was admitted to the hospital. X-Ray was advised in regard to injury Nos. 1 to 4. Injury Nos. 1 to 5, 7 & 8 were caused by some sharp edged weapon. The injury Nos. 6, 9, 10 & 11 were caused by some blunt object. Injury Nos. 1 to 4 were kept under observation. The injury Nos. 5 to 10 were simple in nature. The injury report which was prepared by him is Ext. Ka-4. These injuries could be caused on 12.05.1984 at 9:00 p.m. and could be caused by a sickle or an exe. The blunt injury could be cause by LATHI also. On the basis of the X-Ray report and the X-Ray plate, he prepared supplementary report Ext. Ka-5, according to which the injury Nos. 3 & 4 were grievous in nature and injury Nos. 1 & 2 were simple. On the same day at about 1:30 a.m. he examined the injured Tikam Singh and found the injuries mentioned in para-13 of the above on the person of injured Tikam Singh. In this regard he prepared injury report Ext. Ka-6. All the injuries were simple in nature and could be caused by some blunt object, like Lathi and could be caused on 12.05.1984 at 9:00 p.m. On the same day at 1:30 a.m. he also examined Smt. Surma Devi and found the injuries mentioned in para-14 of the above on the body of the injured. All the injuries were simple in nature and could be caused by some blunt object. The injury could be caused on 12.05.1984 at 9:00 p.m. by Lathi. The injury report is Ext. Ka-7. In para-12 of the cross-examination, this witness has stated that on 13.05.1983 at 5:00 a.m. the accused/appellant Lakhan Singh was medically examined by him, a copy of that injury report is Ext. Kha-1 on the record. He has further stated that the injuries received by the accused/appellant Lakhan Singh can be caused on 12.05.1984 at 9:00 p.m. and can be caused by Lathi and stones.

PW-6 is Satya Prasad Sharma, Retd. Patwari-the Investigating Officer of the case, who has stated that on 14.05.1984 he was posted as Patti Patwari Raulakot and the investigation of the case was entrusted to him. Sri Mangal Singh, Patwasri was the Investigating Officer of the case before him. During the course of investigation, he recorded the statements of the eye witnesses i.e. Bhola Singh and Buddhi Singh. On 15.05.1984 he inspected the spot and thereafter prepared the site plan Ext. Ka-8. The witness Tikam Singh had handed over him a sickle and cloths of the Buddhi Singh and a Fard of the recovery of clothes was prepared which is Ext. Ka- 9. A bundle was opened and a sickle, underwear and one Baniyan were taken out and marked as Ext. 1, 2, 3. A separate Fard of the recovery of sickle was prepared which is Ext. Ka- 10. After completing the investigation, he submitted charge sheet Ext. Ka-11 on 16.08.1984. This witness was cross examined by the defence. In his cross-examination, he has stated that he did not found any blood either in the verandah or at the foot steps of the house of the injured Buddhi Singh. Similarly he did not find bloodstained at the place marked as �A� in the site plan.

The oral and documentary evidence in question form was put to the accused/appellants u/s 313 Cr.P.C. who have denied the allegations made against them. In reply to the question No. 12, the accused Lakhan Singh has stated that on 12.05.1984 at 9:30 p.m. he was returning to his house after irrigating his field and just he reached at his courtyard Buddhi Singh armed with a gun and Tikam Singh and Surma Devi armed with Lathies had attacked on him. Buddhi Singh shot at him but it was missed. Bhola Singh pelted stones on him from the roof of the old house. Anyhow saving his life, he had gone to his house. On 13.05.1984 he had gone to Tehri and was medically examined by the doctor and on 14.05.1984 he lodged a first information report. The accused Rai Singh in reply to the question no.12 has stated that at 9:00 p.m. he was looking after his grandson at his verandah. After hearing noise of Buddhi Singh, Surma and Tikam Singh, he came at his courtyard. Buddhi Singh fired on Lakhan Singh with his gun and Surma Devi and Tikam Singh had attacked on Lakhan Singh with the Lathies. In the meanwhile Bhola Singh also reached on the place of incident and he pelted stones (slates). On making noise, these persons had fled from the place of incident. The accused persons, namely, Smt. Bishni Devi, Smt. Sureshi Devi, Smt. Bharosi Devi and Km. Munni Devi have denied the allegations made against them. In defence, the accused/appellants did not produce any oral evidence, but in the documentary evidence, they filed Ext. Kha-1 to Ext. Kha-5. Ext. Kha-1 is the injury report of the appellant/accused Lakhan Dingh who was medically examined on 13.05.1984 at 5:00 a.m. at Civil Hospital, Tehri by the Medical Officer Dr. H.K. Shrama who has proved the medical report in para-12 of his cross-examination. The injuries found on the person of the injured accused/appellant Lakhan Singh is reproduced as under:

Lacerated wound on right side of skull, 15cm. above to the right ear measuring 7.5cm. x 2.5cm. x bone deep. Running medially and backward. Clotted blood present all around. Margins irregular;

Abrasion on left side of forehead, 6cm. above left eye, 3cm. x 2cm. Clotted blood present;

Abrasion in mideler of left forearm, outer side 2cm. x 2cm. Clotted blood present;

Abrasion on front of left knee, 4cm. x 4cm. Clouted blood present around;

Complain of pain in front of whole chest. Tenderness present.

The doctor has opined that all injuries were simple. The injury No. 1 probably caused by some hard blunt object. Injury No. 2, 3 & 4 by some hard object/friction against hard surface. Injury No. 5 by blunt object. Duration of injury Nos. 1 to 4 was 6 to 12 hrs. and duration of injury No. 5 cannot be ascertained.

After the medical examination of the injured accused/appellant Lakhan Singh, he also lodged a report before the Sub Divisional Magistrate, Tehri Pratap Nagar, Tehri, a copy of the report is Ext. Kha-3. Ext. Kha-2 is the compromise arrived at between the parties which was filed before the Sub Divisional Magistrate, Tehri Pratap Nagar, Tehri. Ext. Kha-4 is the judgment passed by the Munsif Magistrate, Tehri, Tehri Garhwal whereby the accused/appellants Lakhan Singh and Smt. Bishna Devi were acquitted from the charge of offence punishable u/s 323, 504, 506 I.P.C. Ext. Kha-5 is the report submitted by the Patwari to initiate proceedings against Bhuddhi Singh u/s 107/116 Cr.P.C. on the complaint of accused/appellant Lakhan Singh.

Learned Senior Counsel Sri S.K. Aggarwal, has argued that the as per the evidence produced by the prosecution, no case for the alleged offence is made out against the accused/appellants. He contended that while making spot inspection no blood was found by the Investigating Officer at the place of occurrence as alleged by the prosecution. According to the prosecution, Buddhi Singh, Tikam Singh and Smt. Surma Devi received injuries at the verandah of the Buddhi Singh on the contrary as per the evidence of PW-6 Satya Prasad Sharma, I.O., on making inspection, he did not find blood either at the verandah or on the foot steps in the house of the Buddhi Singh. He also did not find bloodstained at the place marked as ''A'' in the site plan. Therefore, the incident could not have been taken place as alleged by the prosecution, which creates reasonable doubt in the prosecution case. Learned Senior Counsel for the appellants has further submitted that the said incident did not occurred in the verandah and courtyard of Buddhi Singh injured, as the Investigating Officer did not find blood at the place as alleged by the prosecution, when he inspected the place of incident in order to prepare the site plan. This argument advanced by the learned Senior Counsel for the appellants got ample force. As the Investigating Officer PW-6 Satya Prasad Sharma has stated that he did not find blood either at the verandah or on the foot steps in the house of the Buddhi Singh. He also did not find bloodstained at the place marked as ''A'' in the site plan or at the courtyard. Sri S.K. Aggarwal, learned Senior Counsel for the appellants has vehemently contended that Buddhi Singh armed with a gun, Tikam Singh and Smt. Surma Devi armed with Lathies had came in the courtyard of the accused Lakhan Singh and asked him that why he is using the way, which go through in front of the courtyard of Buddhi Singh and due to this reason, Buddhi Singh fired on Lakhan Singh which got missed. Tikam Singh and Surma Devi had caused injuries with Lathies and Bhola Singh has pelted stones from the old house due to which Lakhan Singh received injuries. He has further submitted that Lakhan Singh had received injuries on 12.05.1984 at 9:00 p.m. at his courtyard caused by the above said persons, namely Buddhi Singh, Tikam Singh, Smt. Surma Devi and Bhola Singh. The accused Lakhan Singh was medically examined on 13.05.1984 at 5:00 a.m. at the Civil Hospital, Tehri and an injury report in this regard was made which is Ext. Kha-1 on the record. Lakhan Singh also lodged report on the next day to the Sub Divisional Magistrate, Tehri, Pratapnagar, Tehri Garhwal. He has further submitted that to make use of the disputed way and in regard to the drinking water, a compromise was filed by both the parties before the Sub Divisional Magistrate, Tehri Pratapnagar, Tehri Garhwal. Therefore, all these factors apparently indicate that the incident did not take place at the verandah or in front of the courtyard of the injured Buddhi Singh. Instead, on the basis of these facts, learned Sr. Counsel for the accused/appellants has submitted that the said Marpit had taken place in the courtyard of accused/appellant Lakhan Singh and in a free fight among the accused Lakhan Singh with Buddhi Singh, Tikam Singh, Smt. Surma Devi & Bhola Singh both the parties had received injuries. Hence, it cannot be said that the accused/appellants were the aggressors and in this process they have caused injuries to Buddhi Singh with the intention to kill him. In these circumstances, learned Sr. Counsel for the accused/appellants has submitted that instead the complainant party i.e. Buddhi Singh, Tikam Singh, Smt. Surma Devi, and Bhola Singh were the aggressors and they have caused injuries to the accused/appellant Lakhan Singh with the intension to kill him. Learned Sr. Counsel for the appellants has submitted that from the above facts, it is clearly proved beyond doubt that in the free fight which taken place in between the parties, the accused/appellant Lakhan Singh as per the medical report Ext. Kha-1 has received as many as 5 wounds (including lacerated and abrasions). One of the lacerated wounds was found in his skull which is the vital part of the body. Learned Sr. counsel for the appellants has further contended that the injury found on the body of the accused/appellant Lakhan Singh was not explained by the prosecution, which creates reasonable doubt in the prosecution story.

From the evidence discussed above, it is proved that the said incident did not taken place at the verandah or at the courtyard of the injured Buddhi Singh, because the Investigating Officer did not find blood either at the verandah or on the foot steps in the house of the Buddhi Singh. He also did not find bloodstained at the place marked as ''A'' in the site plan or at the courtyard. The Investigating Officer did not inspect the courtyard of Lakhan Singh-accused in order to find out the reality as to whether in the free fight which taken place at the courtyard of Lakhan Singh either he found blood there or not? Further, the injuries received by the accused/appellants Lakhan Singh, which are 5 in numbers and one of them is on the vital part of the body, have not been explained by the prosecution. Therefore, in the above circumstances the accused/appellants are entitled to benefit of doubt.

Learned Senior Counsel for the accused/appellants has submitted that it is the case of free fight which took place in between the parties and persons from both the sides received injuries and the prosecution has failed to prove its case beyond reasonable doubt that the accused/appellants were the aggressor party who in commission of the said crime have inflicted injuries to the complainant�s party. In this regard he cited the judgment reported in (2005) 2 SCC 245 Balwan Singh v. State of Haryana and relied on paras-9, 11, 12, 13 & 14 of the judgment which is reproduced as under:

It was argued before us by counsel for the appellant that in the facts and circumstances of this case, the failure of the prosecution to explain the injuries on the person of the accused was fatal. He submitted that even the High Court did not find the evidence of the witnesses to be wholly reliable, and to some extent the findings recorded by the High Court are consistent with the case of the defence, rather than the case of the prosecution. He submits that in the facts and circumstances of this case, all the accused are entitled to an acquittal, and in any case, entitled to the benefit of doubt. The evidence on record probabilises the defence of the accused, while the testimony of the prosecution witnesses stands discredited by reason of their failure to explain the injuries on the person of the accused.

As to the place of occurrence, there is considerable dispute. According to the prosecution, the occurrence took place in the gali in front of the house of Chander Bhan Mahajan. It is there that Ram Chander (deceased) was assaulted by the accused. It is admitted by PW 5 that from the place of occurrence as pointed out by him no blood was recovered for chemical examination nor was any earth sample taken for the purpose. That by itself may not be of very great significance, but what mattered is the fact that even the High Court found that this part of the prosecution case is not true. The High Court found that the place of occurrence must have been the lane in front of the house of the deceased. That is precisely the defence case also. In effect the High Court has accepted the place of occurrence as alleged by the defence, rather than the place of occurrence as pointed out by PW 5 (sic PW 7) in the course of her deposition. We can, therefore, proceed on the basis that the occurrence took place in front of the house of Ram Chander where he was assaulted. That is consistently the defence case, since house of Mehar Singh, brother of the accused is opposite the house of Ram Chander (deceased).

The question then arises whether the failure of the prosecution to explain the injuries suffered by the accused is not fatal to the case of the prosecution. It is true that in all cases failure of the prosecution to explain injuries to the accused may not be fatal, and that the consequence of failure to explain such injuries depends upon the facts and circumstances of the case, the nature of the occurrence and the nature of the injuries suffered by the accused. In this case we find that the injuries suffered by A-1 to A-3 are numerous. We can say that the injuries were serious because any of the injuries on the skull could have proved fatal. Fortunately, that did not happen. The High Court noticing the evidence took the view that though the prosecution had not explained the injuries on the accused persons and may not have come out with a correct version of the occurrence, this could be said to be a case of a free fight and, therefore, right of private defence was not available to any of the participants and each one must be held responsible for his own conduct and action. We do not find ourselves in agreement with this view. The mere fact that the accused are also found to have sustained serious injuries unexplained by the prosecution does not necessarily give rise to an inference that there must have been a free fight. In the instant case, we find that there is ample evidence on record to establish that the occurrence took place in a different manner altogether in which the accused were also injured. They were promptly examined by the doctor who was examined as PW 6, and they had also lodged a first information report stating relevant facts and alleging that it was the prosecution party which was the aggressor. From the facts of the case it becomes apparent that the prosecution has not disclosed the true genesis of the occurrence. The motive suggested by the prosecution does not appeal to us, because if there was an altercation between PW 5 and A-2 in Village Juan when a request was made by PW 5 to A-1 to take the groom on his motorcycle to the chaupal, there appears to be no reason why the accused would have assaulted his father after returning to the village, particularly, when PW 5 was not with his father. The motive as alleged by the prosecution does not appeal to us because it does not appear to be natural that for the conduct of his son at a different place, the appellant would return to the village and kill his father. Having regard to the place of occurrence as found by the High Court, the defence of the accused is probabilised. It is well settled that while the prosecution has to prove its case beyond reasonable doubt, the defence has only to produce evidence or show material on record which probabilises its defence.

Having regard to the facts of the case and the findings of the High Court, we are satisfied that the case of the prosecution is not proved beyond reasonable doubt. The prosecution has not disclosed the true genesis of the occurrence. On the other hand, the evidence discloses that the occurrence took place in a different manner and at a different place in which three members of the defence party also suffered serious injuries. In these circumstances, the appellant and the other co-accused were at least entitled to the benefit of doubt.

We, therefore, allow the appeal, set aside the judgment and order of the High Court impugned and acquit the appellant of all the charges levelled against him. The SLP preferred by the State is dismissed.

From the evidence discussed above it is proved that the prosecution has not disclosed the true genesis of the occurrence. On the other hand, the evidence discloses that the occurrence took place in a different manner and at the different place in which the accused/appellant Lakhan Singh also suffered serious injuries. In these circumstances the accused/appellants are, at least, entitled to the benefit of doubt. The incident is the result of free fights which taken place in between the parties. The incident was not occurred in the manner and at the place as alleged by the prosecution, therefore the prosecution has failed to prove its case beyond reasonable doubt that the incident was occurred on 12.05.1984 in village Jhinwali, Patti Raika, Chherup Dhar, District Tehri Garhwal at the verandah and courtyard of Buddhi Singh where the accused/appellants caused injuries with Sickle to Buddhi Singh, with the intention to kill him and Tikam Singh and Smt. Surma Devi were also beaten by the accused/appellants at the place as alleged by the prosecution.

Lastly, the learned Sr. Counsel for the accused/appellants has vehemently contended that it has mentioned in the First Information Report that the accused/appellants inflicted injuries to Buddhi Singh, Tikam Singh and Smt. Surma Devi with a Sickle; while PW-1 Buddhi Singh in his evidence has stated that in commission of the said crime the accused Rai Singh was armed with an Axe, the accused Lakhan Singh was armed with a Sickle and rest of the accused persons were armed with Lathis. Similarly PW-3 Tikam Singh in his evidence has stated that the accused/appellant Rai Singh was armed with an Axe, the accused/appellant Lakhan Singh was armed with a Sickle and rest of the accused persons were armed with Lathies and PW-2 Bhola Singh has stated that before lodging the First Information Report, the injured Tikam Singh has informed him that at the time of commission of said crime the accused persons were armed with Axe, Sickle and Lathies. Therefore, contradiction exist in the evidence of the injured persons and the eyewitness in the light of the First Information Report which was lodged by PW-2 Bhola Singh, which itself creates doubt in the prosecution case. Thus, the weapon assigned to the accused/appellants as alleged in the First Information Report and that of assigned in the evidence of the injured and the eyewitness, is self-contradictory and does not inspire confidence at any level and which clearly indicate that the incident would have been occurred in a different manner and in a different way and not in the manner and style as alleged by the prosecution.

In the above circumstances, the appeal preferred by the accused/appellants deserves to be allowed.

This appeal was received by transfer from Allahabad High Court for its disposal u/s 35 of U.P. Reorganization Act 2000. This Court on 18.06.2007 issued notices against the appellants. As per the report sent by the Chief Judicial Magistrate, Tehri Garhwal dated 10th July 2007 the appellant, namely, Rai Singh is reported to be died. The Chief Judicial Magistrate has annexed a report of Patwari Patti Chherap Dhar dated 03.07.2007 in respect of the accused Rai Singh S/o Nain Singh, r/o village Jhinwali, Patti Raika, District Tehri Garhwal according to which Rai Singh has been died, hence the appeal preferred by appellant Rai Singh stands abated.

Accordingly, the appeal preferred by the accused/appellants, namely, Lakhan Singh, Smt. Bishni Devi, Smt. Sureshi Devi, Smt. Bharosi Devi and Km. Munni is hereby allowed. The conviction and sentence awarded by the learned Session Judge, Tehri Garhwal to the accused/appellants vide impugned judgment and order dated January 6, 1988 is set aside. The accused persons Lakhan Singh, Smt. Bishni Devi, Smt. Sureshi Devi, Smt. Bharosi Devi and Km. Munni Devi are acquitted from the charges levelled against them. The accused/appellants are on bail, they need not to surrender. Sureties are discharged.

Let a copy of this judgment, along with the record of the Court below, be sent back to the Trial Court.