Tarkeshwar Nath Chaubey and Others vs State of U.P.

Surendra Singh, J.—The challenge in this appeal is the judgment and order dated 7.1.1982, passed by IInd Additional Sessions Judge, Ghazipur, in S.T. No. 218 of 1979, State v. Tarkeshwar Nath Chaubey and Ors., convicting and sentencing the Appellants u/s 302/149, I.P.C. for the life imprisonment, u/s 307/149, I.P.C. for four years rigorous imprisonment and u/s 323 read with Section 149 for six months rigorous imprisonment.

THE FACTS

The incident is said to have taken place on 22.6.1978 at about 7 hours. In this incident one Hardev Lonia (deceased) died. Ravindra Nath Chaubey (the informant) lodged the F.I.R. on the same day at about 13: 30 hours at Police Station Dildar Nagar, district Ghazipur.

The allegations as contained in the F.I.R. are as follows:

� Hardeo (deceased), his sons, Sankatha and Kalika as well as his wife Smt. Janak Dulari and Smt. Lalita wife of his son (Sankatha) were present at their house ;

� Accused-Appellant No. 3 Ramakant came alongwith female servant with a basket of cow dung upon her head. He got the cow dung kept in the north-western corner of the disputed land near the neem tree. Hardeo (deceased) interfered and asked accused-Appellant Ramakant not to put cow dung on his land and threw the cow dung kept there.

� Accused Ramakant went away from the spot uttering that he would see him right immediately.

� Thus, after four or five minutes all the accused-Appellants and five others came at the disputed land. Accused Ramakant and Krishna Kumar alias Menon (acquitted) were armed with spears while rest of the accused armed with lathis started beating the deceased (Hardeo).

� His sons, Sankatha and Kalika as well as his wife Janak Dulari and Smt. Lalita wife of Sankatha are said to have rushed for the rescue of the deceased (Hardeo).

� Deceased (Hardeo) ran towards east with a view to save his life and all the aforesaid continued to chase and beat him.

� Deceased (Hardeo) fell down near the north-western corner of the house of Ram Chandra Seth and when Sankatha and Kalika as well as his wife Janak Dulari and Smt. Lalita wife of Sankatha tried to save him, they were also beaten and sustained injuries on their persons.

� Hardeo died instantaneously on the spot on account of injuries sustained by him and thereby his dead body was dragged by the accused persons named above towards west.

Shorn of unnecessary details, briefly stated facts of the case are as follows:

� According to the prosecution on 22.6.1971, at abut 8.15 hours, at police station Dildar Nagar, Ghazipur situated at a distance of three miles to the north-west of the village Pachokhar where the incident is alleged to have taken place at about 7 hours on the same day, the informant Kalika lodged a written report (Ex Ka-2) purported to have been written by Head Constable of P.S. Dildar Nagar, district Ghazipur ;

� As gleaned from the F.I.R., the occurrence was seen by Supher (P.W. 7) and other persons of the village also.

Hardeo died on the spot and the injured persons were sent for medical examination soon thereafter ;

� S.I. Paras Nath Singh (P.W. 9) in whose presence F.I.R. was lodged, started investigation of the case. He recorded the statement of the first informant Kalika and thereafter reached at the place of occurrence. He went at the door of Tarkeshwar Nath, Appellant No. 1 and found dead body of Hardeo lying there. He conducted inquest proceeding and prepared other papers for sending the dead body for the purposes of post-mortem examination through Constable Shiv Ji. The witnesses, Supher and others were examined and their statement were also examined u/s 161, Code of Criminal Procedure The Investigating Officer of the case thereafter prepared site plan (Ex. Ka-18). He collected the blood from the north western corner of the house of one, Ram Chandra Seth. The blood stained and plain soil were also collected and sealed at the spot and marked as Ex. Ka-19 and Ex. Ka-20).

INJURIES OF THE INFORMANTS SIDE

Sankatha Prasad : He was examined on 22.6.1978, at 3 : 30 p.m. by Dr. K.K. Srivastava (P.W. 4). He found the following injuries on his person:

� Incised wound 4 cm. x 2 cm. x bone deep on the right elbow 26 cm. above the right wrist. Advised X-ray ;

� Incised wound 3.5 x 1 cm. x muscle deep on the right shoulder, 13 cm. below the top of right shoulder ;

� Incised wound 2 cm. x 0.5 cm. x muscle deep on right shoulder, 10 cm. above the lower angle of right shoulder blade ;

� Lacerated wound 3.5 cm. x 0.5 cm. x bone deep on the scalp, 8 cm. above the right ear. Advised X-ray ;

� Lacerated wound 2 cm. x 0.5 cm. x muscle deep on the scalp, 16 cm. above the root of the nose.

Kalika: He was examined on 22.6.1978, at 7: 10 p.m. in the District Hospital, Ghazipur by Dr. K.K. Srivastava (P.W. 4). He found the following injuries on her person:

� Punctured wound 1 cm. x 0.2 cm. x peritoneal cavity deep. Punctured wound on the abdomen 7 cm. above the navel. Advised X-ray ;

� Incised wound 0.5 cm. x 0.2 cm. x muscle deep on the chest, 3 c.m. inner to the left nipple. Advised X-ray ;

� Lacerated wound 2 cm. x 0.3 cm. x skin deep on the forehead, 0.5 cm. above the root of the nose ;

� Lacerated wound 0.5 cm. x 0.3 cm. x skin deep on the front surface of right leg, 9 cm. below the tibial tuberosity.

Smt. Janak Dulari, wife of Hardeo: She was examined on 22.6.1978, at 7:40 p.m. by Dr. K.K. Srivastava (P.W. 4). He found the following injuries on her person:

� Swelling 10 cm. x 9 cm. on the back of left hand, 1 cm. below the left wrist tender. Advised X-ray ;

� Painful swelling 6 cm. x 8 cm. on the outer aspect of right thigh, 24 cm, above the right knee. Advised X-ray.

Smt. Lalita, wife of Sankatha Prasad ; She was examined on 22.6.1978 at 7: 50 p.m. by Dr. K.K. Srivastava (P.W. 4) and the injured was complaining pain over her right shoulder.

Autopsy on the dead body of the deceased Hardeo, was conducted on 23.6.1978, at about 3 p.m. by Dr. A.K. Singh (P.W. 8) who proved the autopsy report as (Ex. Ka-13). In his opinion the deceased was about 50 years of age, having an average built body and had died one and half day earlier. As per opinion of the Doctor, rigor mortis passed of on upper limb but was present on lower limb of the body of the deceased. The following ante-mortem injuries were found on the dead body:

� Abrasion 3 cm. x 2 cm. on the left side forehead 2 c.m. above eye brow ;

� Penetrating wound 1.5 c.m. x 0.5 c.m. x muscle deep on the left side cheek, 1.5 cm. below lateral angle of left eye, direction backward medially ;

� Incised wound 2 cm. x 0.5 cm. x muscle deep just at the lateral angle of left eye shaped ;

� Incised wound 2 cm. x 0.5 cm. x muscle deep on the left side chin just below the mandibular bone ;

� Penetrating wound 2 cm. x 0.5 cm. x chest cavity deep on the left side chest horizontal 5 cm. above the nipple at 11 O'' clock, direction inwards. Head punctured left auricle, left lung punctured ;

� Abraded contusion 7 cm. x 3 cm. on the right side chest oblique 6 cm. lateral to nipple ;

� Penetrating wound 1 cm. x 0.5 cm. x cavity deep on the right side chest, 5 cm. above nipple ;

� Multiple contusions in an area of 19 cm. x 9 cm. on the right upper arm and shoulder region outer side ;

� Penetrating wound 3 cm. x 1 cm. x bone deep on the front part of right ear, direction backward medially in section fracture of right temporal bone seen. Brain congested ;

� Penetrating wound 1 cm. x 0.5 cm. x muscle deep on the right side abdomen, 13 cm. above umbilicus at 11 O''clock position, direction backwards ;

� Penetrating wound 2 cm. x 0.5 cm. x muscle deep on the front of outer side of lower 1/3 part of right leg, direction backwards ;

� Lacerated wound 2 cm. x 0.5 cm. x muscle deep on the right leg front, 5 cm. above injury No. 13 ;

� Abrasion 3 cm. x 1 cm. on the front of lower third of left leg ;

� Abrasion 2.5 cm. x 0.5 cm. on the left leg, 2 cm. above injury No. 13 ;

� Abraded contusion 25 cm. x 5 cm. on the back of right forearm extending 3 cm. below the elbow to wrist joint ;

� Penetrating wound 2.5 cm. x 0.5 cm. x bone deep on the left side scalp, 12 cm. above left ear direction medially ;

� Penetrating wound 2 cm. x 0.5 cm. x muscle deep on left scapular region lower part, direction forward.

Accused Appellants, Tarkeshwar Nath Chaubey, Ravindra Nath Chaubey, Jai Krishna Chaubey and Hari Shanker have also claimed to be injured in this incident and got themselves medically examined.

Indisputably, accused-Appellants, Ramakant, Ravindra Nath and one, Sriniwas alias Kharpattu are the sons of accused-Appellant Tarkeshwar Nath. Accused Menon is the son of accused-Appellant Hari Shankar while Hari Shankar and Tarkeshwar are cousins, Accused Appellant Jai Krishna is the nephew of Hari Shankar and Vansh Narain, Alakh Narain and Surendra Ahir (since died) are the partymen of accused-Appellant Tarkeshwar Nath. The case was also registered at the instance of Appellant Ravindra Nath Chaubey on the same day, at about 1: 30 p.m., at P.S. Dildar Nagar, district Ghazipur under Sections 147 and 323, I.P.C. This was treated as cross F.I.R. (Ex. Kha-1). There allegations in the cross F.I.R. in brief as follows:

� On 22.6.1978, at about 7 a.m. Appellant Ravindra Nath took ghoora for being stored at the land in the west of the house of Hardeo ;

� He claimed the ownership of the land where the pit exist in it since long ;

� Hardeo (deceased), his sons Kalika and Sankatha and wife of Hardeo and others beat him with lathi;

� Hari Shankar, his uncle and his brother Jai Krishna came in his rescue, they were also assaulted and were chased by Hardeo and others ;

� Soon thereafter, the villagers took Ravindra Nath in an injured condition from the disputed land to his house, he found Kalika and Hardeo were also lying there.

There is nothing on record to show that what happened in the cross-case. However, in the F.I.R. lodged by the informant Ravindra Nath, the police submitted the charge-sheet under Sections 147, 323 and 324, I.P.C.

Both the sides are the residents of the same village and both were claiming the disputed land situated west to the house of Hardeo (deceased). The Investigating Officer investigated the case and submitted the charge-sheet against the Appellants and five others, namely, Sri Sriniwas alias Kharpat, Krishna Kant alias Menon, Vansh Narain Rai, Alakh Narain Rai and Surendra Yadav on 27.8.1978 (Ex. Ka-21).

On the basis of charge-sheet, Chief Judicial Magistrate, Ghazipur summoned the Appellants and committed the case to the court of sessions where it was registered as S.T. No. 218 of 1979, State v. Tarkeshwar Nath and Ors.. Additional Sessions Judge, Ghazipur on 17.8.1980 charged the Appellants and the aforesaid five others u/s 302/141, I.P.C. and separately charged each of the accused u/s 307/149, I.P.C. as well as u/s 323/149, I.P.C. Accused Krishna Kant alias Menon and Ramakant were further charged u/s 148, I.P.C. while rest of the accused persons were charged u/s 141, I.P.C. for rioting. Accused Surendra Yadav died during the pendency of the case and the trial abated against him.

Since the Appellants abjured the charges, therefore, the trial proceeded against them.

In order to cement the charge and prove its case the prosecution examined the following witnesses:

� Sankatha Prasad (injured) as P.W. 1 ;

� Kalika (injured) as P.W. 2 ;

� Haridwar Rai (Head Constable), writer of the F.I.R. as P.W. 3 ;

� Dr. K.K. Srivastava examined the injured as P.W. 4 ;

� Surya Nath Mishra, Clerk of District Hospital, Ghazipur as P.W. 5 ;

� Bhola Nath, Peon of District Hospital, Ghazipur as P.W. 6 ;

� Supher, Eye witness as P.W. 7 ;

� Dr. Awadhesh Singh conducted the post-mortem examination as P.W. 8 ; and

� Paras Nath Singh, Investigating Officer as P.W. 9.

Dr. A.P. Mangain and Tara Prasad Singh have also been examined as C.W. 1 and C.W. 2. Both have examined the injured persons on the Appellants'' side.

Among others, the prosecution filed the following documents:

� Sale-deed of the house executed by Ram Lal Teli in favour of Smt. Bunnat Bibi on 27.10.1949 (Ex. Ka-1) ;

� Copy of the F.I.R. (Ex. Ka-2) ;

� Nakal Rapat No. 10 (Ex. Ka-3) ;

� Nakal Rapat No. 15 (Ex. Ka-4) ;

� Injury report of Sankatha Prasad, P.W. 1 (Ex. Ka-9) ;

� Injury report of Kalika, P.W. 2 (Ex. Ka-10) ;

� Injury report of Smt. Janak Dulari (Ex. Ka-11) ;

� Injury report of Smt. Lalita (Ex. Ka-12) ;

� Post-mortem report of Hardeo (Ex. Ka-13) ;

� Inquest report of Hardeo (Ex. Ka-14) ;

� Site plan prepared by the Investigating Officer (Ex. Ka-18) ;

� Charge-sheet (Ex. Ka-21):

� Chemical report (Ex. Ka-22):

� Serologist''s report (Ex. Ka-23).

Among others, the Appellants filed their following injury reports:

� 1. Haridwar (Ex. C-1).

� 2. Tarkesh Nath Chaubey (Ex. C-2):

� 3. Jai Krishna (Ex. C-3);

Appellant Ravindra Nath had also sustained injuries in their incident but his medical report is not on the record. However, the X-ray report of the injury sustained by him is on the record which is marked as Ex. Kha-4 and was proved by Dr. P.C. Srivastava (D.W. 1).

In defence the Appellants examined the following witnesses:

� Dr. P.C. Srivastava (D.W. 1) proved the X-ray report ;

� Ashok Kumar Srivastava, Naib Tehsildar (D.W. 2) recorded dying declaration of injured Kalika, son of Mahadeo ;

� Shah Abdul Alim (D.W. 3) proved the alibi of Krishnakant alias Menon ;

� Vinay Narain Sharma (D.W. 4) eye-witness ; and

� Kedar Nath Sharma (D.W. 5).

Among others the accused-Appellants, filed following documents in their defence:

� F.I.R. filed by accused Ravindra Nath (Ex. Kha-1) ;

� Dying declaration of Kalika, P.W. 2 (Ex. Kha-3) ;

� X-ray report of Ravindra Nath (Ex. Kha-4) ;

� Settlement of receipt (Ex. Kha-6):

� Injury report of Hari Shankar (Ex. C-1) ;

� Injury report of Tarkeshwar Nath (Ex. C-2) and

� Injury report of Jai Kishun (Ex. C-3).

The IInd Additional Sessions Judge, Ghazipur by his judgment dated 7.1.1982 acquitted the accused, namely, Sriniwas alias Kharpattu, Krishna Kant alias Menon, Vansh Narain Rai and Alakh Narain and convicted the present Appellants and sentences them as follows:

� Imprisonment for life u/s 302 read with Section

149, I.P.C. for committing murder of Hardeo ;

� 4 years R.I. u/s 307 read with Section 149, I.P.C. for attempt to commit murder of Sankatha Prasad ;

� 4 years'' R.I. u/s 307 read with Section 149, I.P.C. for attempt to commit murder of Kalika ;

� Six months'' R.I. u/s 323'' read with Section 149, I.P.C. for causing simple hurt to Smt. Janak Dulari; and

� Six months'' R.I. u/s 323 read with Section 149, I.P.C. for causing simple hurt to Smt. Lalita.

All the sentences to run concurrently. Hence, the present appeal.

During the pendency of this appeal, Appellant No. 1 Tarkeshwar Nath has died. His appeal was abated on 8.2.2006. There is a report from the office dated 16.11.2009 that Appellant No. 5 Harishanker has also died. His appeal is also abated. The appeal survives for Appellants No. 2, 3 and 4 (jointly referred to as the Appellants).

POINTS FOR DETERMINATION

We have heard Sri Satish Trivedi, senior counsel, assisted by Sri Ajay Kumar Pandey for the Appellants and Sri A.N. Mulla, learned A.G.A. for the State, and perused the material placed on the record. The following points arise for determination:

� Where did the incident take place ;

� Whether the Appellants had right to private defence ;

� Whether the Appellants are guilty ; and

� In case the Appellants are guilty then what punishment should be awarded to them.

Ist POINT: AT OPEN PIECE OF LAND

There is dispute between the parties in respect of open land situated at west to the house of deceased (Hardeo). It is not disputed that on the date of incident a litigation in respect of the land in question was pending. It was a case u/s 145, Code of Criminal Procedure The proceeding u/s 145, Code of Criminal Procedure was started on the basis of an application moved by Hardeo (deceased). It was alleged that accused Tarkeshwar Nath wanted to forcibly occupy it. However, the accused-Appellant Tarkeshwar Nath claims to continue in possession. The land in question is referred to as the disputed land.

Sankatha Prasad (P.W. 1) and Kalika (P.W. 2), both sons of deceased (Hardeo) have deposed that they and their father possessed the disputed land which was purchased from one Smt. Bunnat Bibi. Sale deed (Ex. Ka-1) dated 27.10.1949 has been filed to prove that a house belonging to one Ram Lal Teli who sold it to Smt. Bunnat Bibi. However, there is no proof on the record which shows that Smt. Bunnat Bibi sold the particular land over which house was built to Hardeo (deceased).

The ancestral house of Hardeo existed at a distance of 100-50 yards from the land in dispute. The house of the deceased and his sons (consists of one room only and it is in the northeast. According to P.W. 1 and P.W. 2, the western boundary wall was demolished'' by the accused persons and they reconstructed the wall up to some height.

The site plan (Ex. Ka-18) is prepared by the Investigating Officer (P.W. 9). It is not disputed in this site plan'' the house of the informant''s side is towards east. In the disputed land, there was a neem tree in the northwestern corner and near to which the accused Ramakant is said to have put cow dung (gobar) on the date of incident. In the east of the informant''s house there is village path which runs north-south. This passage went up to the northern wall of the house of Ram Chandra Seth and then turned towards west. The passage after diversion from the house of Ram Chandra Seth goes up to the house of accused Tarkeshwar Nath (since" died). The incident first took place on the open piece of land near the neem tree which is said to be the disputed land. The houses of the accused side are towards west of the disputed land.

According to the prosecution case:

� Accused-Appellant No. 3 Ramakant came alongwith female servant with a basket of cow dung upon her head ;

� He got the dung kept in the north-western corner of the disputed land near the neem tree ;

� Hardeo (deceased) threw the cow dung (gobar) put by the accused-Appellant Ramakant. After 4-5 minutes all the accused-Appellants came there and started beating Hardeo ;

� Deceased (Hardeo) ran towards east-north and accused chased and beat him. He fell down near the northwestern comer of the house of Ram Chandra Seth and soon thereafter died. Sankatha Prasad (P.W. 1), Kalika (P.W. 2), Smt. Janak Dulari and Smt. Lalita also went behind them and they were also beaten.

� Both Sankatha Prasad and Kalika wielded lathis in defence ;

� P.W. 1, Sankatha Prasad and P.W. 2 Kalika deposed that the dead body of Hardeo was dragged towards the house of Tarkeshwar Nath by catching hold of his legs. This fact was also corroborated by another eye-witness, Supher (P.W. 7).

� Thus, according to the prosecution case, the incident should have taken place first in the open land in dispute and thereafter in the northwestern corner of the house of Ram Chandra Seth.

According to the defence version:

� Accused Tarkeshwar Nath claimed the ownership and his possession over the disputed land ;

� The cross-version was also reported by accused-Appellant Ravindra Nath on the same day ;

� It is alleged that their manure pit existed over the land in dispute since long and on the relevant date and time accused Ravindra Nath took cow dung (gobar) for being stored in the pit;

� Deceased (Hardeo), Sankatha Prasad, Kalika, Vakeel, Smt. Janak Dulari and Smt. Lalita (wives of Hardeo and Sankatha Prasad) beat Ravindra Nath there, and when his uncle Harishanker and brother Jai Kishun reached there in his rescue they were also beaten and chased from the spot up to the house of Tarkeshwar Nath;

� Hardeo and others sustained injuries at the door of Tarkeshwar Nath ; and -

� The dead body of Hardeo was found lying at the door of Tarkeshwar Nath when the Investigating Officer reached on the spot.

The presence of D.W. 4 Vijay Narain Rai is admitted by P.W. 2 Kalika (injured) in his dying declaration (Ex. Kha-3).

The Investigating Officer found blood in large quantity in the sahan land of Tarkeshwar Nath and the soil was sent for examination and stained with human blood was found. Investigating Officer also found some blood near the house of Ram Chandra which may have been oozed from the injury of Kalika (P.W. 2) had fallen there. Admittedly, P.W. 2 Kalika also sat near the house of Ram Chandra after he received injuries.

2 to 4 Points: APPELLANTS NOT GUILTY

The dispute followed by marpeet took place over the disputed land situated at north-west to the house of Hardeo (deceased). There is no evidence on record to show as to who is the owner of the said piece of land.

The incident took place over the disputed land. It shows that presumably the dispute started due to dispute regarding possession over the land in question.

The ante-mortem injuries of the deceased and other injured persons from the informant''s side would be clear from the injury reports (Exs. Ka-9 to Ka-12) and post-mortem (Ex. Ka-13).

Hardeo (the deceased) had 8 penetrating wounds, two incised wounds, one lacerated wound, three abraisons and three abraded contusions. Kalika (informant) had one incised wound, two lacerated wounds and one penetrating wound. Sankatha Prasad had two incised wounds and two lacerated wounds while Smt. Janak Dulari had two lacerated wounds and Smt. Lalita had no visible mark of injury.

From accused-Appellants'' side 8 persons are said to have armed with lathis according to the F.I.R. two persons, namely, Ramakant and Krishna Kant alias Menon are said to have armed with ballam.

The number of lathi injuries sustained by the informant''s side are total seven in number. This is indicative of the fact that the number of participants in present incident has been exaggerated. On account of this, accused Vansh Narain, Alakh Narain, Sriniwas and Krishna Kant alias Menon were given benefit of doubt and were acquitted. The presence of Sankatha Prasad (P.W. 1) and Kalika, informant (P.W. 2) is not disputed in the marpeet. Both have deposed that the dead body of Hardeo was dragged towards the house of accused Tarkeshwar Nath from the place where he had fallen down by catching hold of his legs., P.W. 7, Supher has corroborated them on the point.

P.W. 9, the Investigating Officer has suggested in his deposition that the path way from the place Hardeo is said to have fallen down towards the house of accused Tarkeshwar Nath was very rough and uneven. If it is so, if Hardeo would have been dragged by catching hold of his legs, there must have been abrasions on his scapula (below the shoulder) and head and with the result blood must have been oozed out from his wounds in the way and the Investigating Officer would have found blood in the path way also.

This is suggestive of the fact that Hardeo and others committed aggression and went to the door of Tarkeshwar Nath and assaulted him, and others

The Investigating Officer did not find any dragging mark or trail of blood on the path way, this suggests that Hardeo and others committed aggression and went to the house of Tarkeshwar Nath and assaulted him and others.

The theory of dragging Hardeo (deceased) by the accused after he fell down is, therefore, not tenable.

Admittedly, accused Tarkeshwar Nath was licensee of a gun but he did not use it though he had sufficient time to bring it from his house. There is no gun shot wound on any one. If at all, he would have intended to commit the murder of Hardeo, he must have used his gun. All the wounds on the body of the deceased and the injured could be caused by lathi and ballam. The presence of Vijay Narain (D.W. 4) at the place of the incident on the relevant date and time is not disputed.

P.W. 2 Kalika has admitted the presence of D.W. 4 in his dying declaration (Ex. Kha-3) alleged to be recorded on 23.6.1978 by Sri A.K. Srivastava (D.W. 2), the then Executive Magistrate and Naib Tehsildar. Dr. P.C. Srivastava (D.W. 1) had approved the fitness of Kalika to give his statement. Kalika disclosed specifically in his dying declaration that he received two spear injuries caused by one of the accused Surendra Yadav (since died).

P.W. 2 Kalika disowned his earlier statement before the trial court and deposed that he became unconscious on the way to the hospital and he gained consciousness after 3-4 days. This was an improvement. His deposition before the trial court is not believable, in view of what have been deposed by Dr. P.C. Srivastava (D.W. 1) and Sri A.K. Srivastava (D.W. 2). Hence, the deposition of P.W. 2, Kalika is dicey and does not inspire any confidence.

The statement of P.W. 1, Sankatha Prasad and P.W. 2, Kalika regarding the participation of accused Krishna Kant and Ramakant having armed with ballam before the trial court appears to be an improvement and is, therefore, very difficult to accept.

As per deposition of Vijay Narain (D.W. 4), Sankatha Prasad and Hardeo (deceased) as well as their wives and one Vakeel chased Harishanker and Jai Kishun from the disputed land upto the door of the accused Tarkeshwar Nath. He further deposed that behind the deceased co-accused Surendra Yadav also ran having armed with ballam and consequently at the door of Tarkeshwar Nath marpeet took place between the parties due to which both the sides have received injuries.

In view of above, the prosecution version to the effect that accused Krishna Kant and Ramakant were armed with ballam does not appear to be correct. It is quite probable that only one accused, namely, Surendra Yadav was armed with ballam who dealt with it.

Accused Krishna Kant took the plea of alibi and his participation has not been proved beyond doubt. His participation in the incident was found not correct. Hence, he was acquitted by the trial court itself.

In the dispute, the accused-Appellants, Tarkeshwar Nath (since died), Ravindra Nath, Jai Kishun and Hari Shanker (since died) have also received injuries. Dr. A.P. Mangain and Dr. Tara Prasad were examined as C.W. 1 and C.W. 2 by the accused in defence. C.W. 1 Dr. A.P. Mangain deposed that he had examined accused Hari, Shanker in S.S.P.G. Hospital, Varanasi on 23.6.1978 at about 12 O''clock and found two lacerated wounds on his person. He has proved his injury report (Ex. C-1).

C.W. 2 Dr. Tara Prasad has also deposed that he has examined accused Tarkeshwar Nath on 22.6.1978 at about 12: 45 p.m. and found one spear injury and seven lathi injuries on his person. He is said to have further examined accused Jai Kishun on the same day at about 12: 55 p.m. and found 8 lathi injuries on his person. He had proved the injury reports (Exs. C-2 and C-3). Dr. P.C. Srivastava (D.W. 1) had proved the X-ray report (Ex. Kha-4) of Ravindra Nath Chaubey.

Injury reports (Exs. C-1 and C-3) and X-ray report (Ex. Kha-4) proves that accused Ravindra Nath Chaubey sustained a fracture of parietal bone and accused Tarkeshwar Nath, Hari Shanker, and Jai Kishun had sustained numerous injuries including stab wound.

P.W. 1 Sankatha and P.W. 2 Kalika have deposed that their father possessed the disputed land on which there was a house and the same was purchased from Smt. Bunnat Bibi through sale-deed but that remained unproved. Moreover, the prosecution has failed to prove that the house purchased by Hardeo from Smt. Bunnat Bibi was ever constructed over the land in dispute.

The accused-Appellants also claim their ownership of the land in question. Ex. Kha-6 is a receipt regarding some settlement of dispute in respect of the land in question.

On the other hand, S.I. P.W. 9, Paras Nath found the manure of cow dung in a pit over the disputed land during the spot inspection. He did not find any reconstructed wall raised up to some height. P.W. 1 Sankatha Prasad had also admitted that he had no cattle. The possibility cannot be ruled out regarding the use of disputed land by Tarkeshwar Nath and his family members since long. P.W. 1, Sankatha Prasad has confirmed that he levelled the pit few days before the occurrence. This itself shows that there had been a pit wherein manure was being stored. Thus, the possibility of the possession of Tarkeshwar and family members over the pit in question and particular land cannot be excluded.

In Our Opinion:

� Dispute started at the disputed land and thereafter incident occurred at the door of Tarkeshwar Nath.

� There has been free-fight between the parties in which both the sides have received almost equal number of injuries.

� Both the sides have received injuries indisputably number of persons from the accused side have sustained injuries. Accused Ravindra Nath had sustained fracture of parietal bone. This might have caused reasonable apprehension that death or grievous hurt would be consequence of such onslaught, in such a situation the right of private defence could extend to cause death also.

Learned A.G.A. has submitted that the accused side has exceeded the right of private defence by causing death.

Admittedly, Tarkeshwar Nath was a licensee of a gun but he did not use it. Considering this aspect also it cannot said that accused exceeded the right of private defence.

Both the sides were claiming disputed land and marpeet took place between them in which both sides have sustained injuries.

There is no doubt that number of participants from the Appellants'' side in the unlawful assembly has been exaggerated. Consequently, some of the accused were given benefit of doubt hence already acquitted.

These factors also create some doubt in our mind regarding the truthfulness and basic version of the prosecution. Simultaneously, accused Krishna Kant raised plea of alibi and he proved it successfully.

Place of incident is admitted. Time and date of the incident are also admitted by both the parties but who had exceeded the right, the prosecution has failed to prove it.

There are material discrepancy in the statement of the prosecution injured witnesses which go to the root of the merit of the case and shake the basic version of the prosecution. Apparently, the prosecution has suppressed genesis and origin of the occurrence and thus has not presented true versions. Therefore, the accused-Appellants are entitled to get the benefit of doubt.

In our opinion, the prosecution has not been able to prove its case beyond reasonable doubt. The Appellants are entitled to get benefit of doubt.

CONCLUSIONS:

Our conclusions are as follows ;

(1) The incident took place on the disputed land.

(2) The prosecution has suppressed the genesis and origin of the occurrence and thus not presented true versions. The material discrepancies in the statement of the eye-witnesses go to the root of the matter and shake basic version of the prosecution.

(3) The prosecution has not been able to prove its case beyond reasonable doubt.

In view of the conclusions, the appeal is allowed and the order of conviction and sentence dated 7.1.1982 in S.T. No. 218 of 1979, passed by IInd Additional Sessions Judge, Ghazipur is set aside. All the remaining Appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.