JUDGMENT
B.N.P. Singh, J.
1. Though appellants along with Mahadeo Singh (deceased) stood charged under Section 307/149 of the Indian Penal Code, the trial Court having found them not guilty on that count rendered verdict of guilt against Mahendra Singh under Sections 324 and 148 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for a term of two years on the first count, and one year on the second count. The appellant Nos. 2 and 3 suffered conviction under Sections 323 and 147 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for a term of six months on each score. Appellant No. 4 suffered conviction under Section 147 of the Indian Penal Code simplicitor and was sentenced to suffer rigorous imprisonment for a term of six months with direction that in case of those who suffered sentence on two counts, sentences would run concurrently.
2. The salient features of the prosecution case appearing in the fardbeyan of Rajdeo Singh (P.W. 11) and also occular account given by the witnesses are that at about mid-day on 5th July, 1981 while Rajdeo Singh was taking meal in the house, he was informed by Nawlesh Sharma (P.W. 13) about Mahadeo Singh and other appellants demolising marks of identification from plot No. 913. It was alleged that after said Rajdeo Singh visited place, he noticed appellants removing Nad and Khuta. and on resistence, on exhortion made by Mahadeo Singh, Raj Kishore Singh fired shots, though aim was lost. It was alleged that Mahadeo Singh and Vijay Singh dealt blows with garasa on him for which he suffered injuries on his head. Similar accusations were attributed to Sri Kumar Sharma and Jugal Kishore Sharma about dealing blows with hard blunt substance on Raj Kishore Singh. Jugal Kishore Singh and Shri Singh had been saddled with allegation of dealing blows with hard blunt substance on Shyam Singh, who suffered injuries at their hands, when they came for rescue of his family members. After prosecution was launched on behest of Rajdeo Singh, usual investigation commenced, in course of which police recorded statement of witnesses, visited place of occurrence, referred injured to doctor for their clinical examination and on conclusion of investigation, laid charge-sheet before the Court.
3. Defence of the appellants before the Court below and also this Court was plain denial of entire allegations and claimed innocence. The allegations attributed to appellants were countered by them, also on premises that in the same transaction some Of them suffered injuries on their persons and Ram Binay Singh having suffered fatal injuries succumbed to them. The land dispute between the parties was also taken to be a ground for their alleged false implication. The trial Court, however, on consideration of testimony of witnesses and contentions raised at bar, finding appellants guilty recorded verdict of guilt and sentenced them in the manner stated above.
4. Before criticisms made by learned counsel for the appellants are given due consideration, narrations made by witness at trial which have been clearly spelt out in the judgment of the Court below can be stated with brevity. At trial, the State examined as many as fifteen number of witnesses of whom P.Ws. Nos. 1 and 2 were formal in nature who brought on records, some documents. P.Ws. 6, 7, 8 and 10 were tendered by the State and there was nothing material in their evidences to merit consideration. Those who claimed to be occular witnesses, were Akhileshwar Sharma, P.W. 3, R.N. Singh, P.W. 4, R.P. Sharma, P.W. 5, Shyam Sharma, P.W. 9, Rajdeo Singh, P.W. 11, Rajdeo Sharma, P.W. 12 and Nawlesh Kumar, P.W. 13. These witnesses it would appear from tenor of their evidences, had made coherent narration about manner of occurrence and also the mode of assault with sustained consistencies, about Mahadeo Singh and Vijay Singh dealing blows with garasa, on Rajdeo Singh, for which there has been corresponding finding of doctor, Sri B. B. Sahay, P.W. 14, who clinically examined him. Witnesses would make similar narrations as that of fardbeyan of Raj Kishore Singh reiterating assault on Raj Kishore Singh with hard blunt substance by Sri Kumar Singh and also Jugal Sharma. Narrations made by witnesses at trial do eloquently suggest Yugal Kishore Sharma and Sri Singh to be the author of injuries sustained by Shyam Singh (P.W. 9), and for which there has been corresponding finding of the doctor, who examined them. The investigating officer, who visited place of occurrence though noticed Nad and Khuta, did not find mark of violence on the place of occurrence. Though occular account given by witnesses which were inconformity with the positive finding recorded by the doctor was believed by the trial Court to be the true version of the incident, regard being had to the nature of injuries suffered by the victims and also the circumstances in which occurrence took place, finding the appellants not guilty under Section 307 of the Indian Penal Code, recorded verdict of guilt under Sections 324, 323 and other allied sections of the Indian Penal Code.
5. It is urged that attention of Akhileshwar Sharma, P.W. 3, had been drawn to impeach his credibility, as narrations made by him at trial were conspicuously wanting before the police, and I find that assertions made by the witness was negatived by the police officer, who recorded his statement, and, in this backdrop, evidence of P.W. 3 has rightly been kept out of consideration. Contentions raised on behalf of appellants are volume of documents placed on the record would show that the incident was off sheet of land dispute, persisting between the parties and for which there has been tacit admission of none else but Rajdeo Singh that the dispute land was recorded in khatian in the name of father of Mahadeo Singh, and proceeding initiated under Section 145, I.P.C. too, had gone in his favour, and also that the proceeding initiated during revisional survey operation too was adverse to the prosecution party, and, on these premises, it is urged that if at all the appellants are found to have inflicted injuries either on Raj Kishore Singh or Shyam Singh, they must be deemed to have acted in exercise of right of their private defence of person and property. In quick succession contentions are raised that the appellants brought on the record, certified copy of the first information report of Ghasi P. S. Case No. 121(7) of 1981 also, which would show that Ram Vinay Singh suffered fatal injuries at the hands of Shyam Singh and Rajdeo Singh and also that R.P. Singh and Anandi Singh also suffered injuries on their persons in the same transaction by members of the prosecution party. The learned counsel would urge that though Ram Vinay Singh suffered fatal injuries and others too had sustained injuries in the same transaction, which do not remain undisputed, death of Ram Vinay Singh had neither been admitted nor explained by the prosecution and, hence, credibility of entire prosecution case had to be thrown over board. My attention has been drawn also to the post-mortem report (Ext. B) with the aid of which it is urged that the positive finding recorded by the doctor would unmistakenely show death of Ram Vinay Singh, which probabilised defence version. True it is that from tenor of the first information report, (Ext. A) and also the post-mortem report (Ext. B) death of Ram Vinay Singh remains undisputed, as doctor who held autopsy on dead body of the deceased was not examined at trial, ex facie there has been no evidence about Vinay Singh having died of injuries, as alleged by defence.
6. As has been state, the plea of right of private defence has also been raised on behalf of the appellants. As has been stated above, from the first information report (Ext. A) and P.M. report (Ext. B), factum of death of Ram Vinay Singh, on sustaining fatal injuries in same transaction is well-established. My attention has been drawn also to evidence of D.W. 1 who brought postmortem report on the record stating, inter alia, about death of author of the postmortem report and, on these premises, it is urged that though it was obligatory on part of the appellants who have been taken plea of right of private defence, to examine the doctor, but since the doctor was dead, the post-mortem report has to be taken into consideration under Section 32 of Indian Evidence Act and, in this backdrop, I find that the plea taken by the appellants appears to be reasonably true and, consequently, they must be deemed to be entitled to the right of private defence in exercise of which they might have inflicted injuries on person of members of the prosecution party.
7. Having given my anxious and deepest consideration to the evidences placed on the record and also contentions raised at bar on behalf of both the parties, I set-aside the finding recorded by Court below, and the appellants are acquitted of the charges levelled against them. They are also discharged from the liability of their bail-bonds. The appeal, accordingly, succeeds.