- (1.) APPELLANTS Ram Narain, Ram Kishore, both sons of Gudar Ram Ahir, Prem Nath, Mohan Lal, both sons of Ram Narain, Hari Shanker, Ramashanker, both sons of Ram Kishore and Hari Krishna have been convicted by Sri U. S. Padey, IV Additional Sessions Judge, Mirzapur under Sections 147, 323/149 and 302/149, I. P. C. and sentenced each of them to undergo R. I. for one year under Section 147, I. P. C. one year's R. I. under Section 323/149, I. P. C. and imprisonment for life under Section 302/149, I. P. C. with the direction that all the sentences shall run concurrently.
(2.) THE occurrence took place at 5. 30 p. m. on 7-8-1977 in Mohalla Rukharghat, P. S. Kotwali Katra, district Mirzapur in which Laxmi Singh s/o Kashi Singh died and Laxmi Singh s/o Satya Narain, Ram Pratap Singh, Sri Gopal Singh. Shyam Lal Singh and Smt. Sukhdei are said to have received injuries. THE report of the incident was lodged at P. S. Kotwali Katra, district Mirzapur on 7-8-1977 at 7. 10 p. m. , the distance of the police station from the place of occurrence being about one mile west. THE report was lodged by Sri Gopal Singh. According to the F. I. R. the prosecution case is that in Mohalla Rukharghat Smt. Sukhdei lived in her house. There was some litigation going on with Ram Narain. On the date of the incident Ram Narain and Ram Kishore, appellants No. 1 and 2, Prem Narain, Mohan sons of Ram Narain, Hari Shanker, Ramashanker sons of Ram Kishore and Hari Krishna alias Lallan came to take possession of the house of Smt. Sukhdei. Smt. Sukhdei resisted the attempt of taking over possession of the house. In the altercation that had ensued at about 5*30 p. m. Laxmin Narain Sing, informant's brother Laxmi Singh, who were outside their house had reached the house of Smt. Sukhdei and tried to intervene there. In the meantime Ram Narain appellant accosted saying that 'kill these persons, they are all well wishers and helpers of Smt. Sukhdei' and appellants Ram Narain, Ram Kishore, Prem Narain, Mohan, Hari Shanker, Rama Shanker and Hari Krishna alias Lallan assaulted with their lathis. Ram Pratap Singh and Shyam Lal sons of the informant reached the place of occurrence on hearing the noise. The accused persons started assaulting the informant and others there and caused lathi injuries. On the alarm raised by the victim and injured persons Pakhdu, Mahadeo, Gulab, Ranghunath, Hari Krishna and several other persons arrived at the place and witnessed the incident. The accused persons continued assaulted even after the injured persons had fallen down after receiving the injuries. In the meantime Prem assaulted Laxmi s/o Kashi Singh deceased with his lathi on his hea 1 with such force that the deceased h ad fallen down and become unconscious. On account of the assault made by the accused persons, the informant and several others had received injuries. The informant and other people had intervened. Smt. Sukhdei and a number of women present there pelted pieces of stone and wielded Hasia (sickle ). All the accused persons were armed with lathis. After lodging of the F. I. R. in the present case the case was registered as case Crime No. 193 of 1977 by P. S. Kotwali. Mirzapur. The F. I. R. has been proved and marked as Ext. Ka. 28. 5 A cross F. I. R. was also lodged at the Police Station Kotwali at 8. 15 p. m. on 7-8-1977 by Ram Narain under Sections 147, 148, 324, 323, 504 and 506, I. P. C. The said F. I. R. was registered as case Crime No. 193-A of 1977. In the said cross case Ram Narain had received injuries. Ram Kishore and Mohan Lal had also received injuries. 6. The appellants were charged under Sections 147, 502/149, I. P. C. The appellants denied the charges and pleaded not guilty and claimed to be tried. The appellant Ram Narain denied the prosecution allegations made against them. 7. After the incident all the injured persons went to the police station where Sri Gopal Singh lodged the report, which is proved and marked as Ext. Ka. 1. A check report was prepared by the constable Moharrir at the police station at 7. 10 p. m. He also registered a case in the G. D. initially under Section 147/149, 307, 323 and 304, I. P. C. After registering the case the injured persons sent to the hospital with constable Jamuna. The same day Dr. V. P. Gupta PW 8 examined the injuries of the injured persons from 1. 15 p. m. to 8. 45 p. m. The injury reports have been proved and marked as Ext. Ka. 8, Ka. 9. and Ka. 10 for the injuries of Rana Pratap, Sri Gopal Singh, and Laxmi Singh s/o Satya Narain. The other injured persons, namely, Shayam Lal and Smt. Sukhdei were also medically examined and their injury reports were proved and marked as Ext. Ka. 8, and Ka. 16 respectively. 8. The injuries of the aforesaid injured persons are quoted as under : Laxmi Singh s/o Kashi Singh- (1) Lacerated wound 1-1/2 cm. X 1/4 cm. X bone deep on the left side forehead just above the left eye- brow. (2) Lacerated wound 3-1/2 cm. X 1/2 cm. X bone deep on the left side skull 4-1/2 cm. above injury No. 1. (3) Lacerated wound 5 cm. X 2 cm. X bone deep on the right side skull 3-1/2 cm. above and medial to the right ear. (4) Lacerated wound 2-1/2 cm. X 1/2 cm. X bone deep on the right side skull 2 cm. below and back to the injury No. 3. (5) Bleeding per nostrils. (6) Contusion 5 cm. X 4 1/2 cm. on the right eye. (7) Contusion 25 cm. X 2 cm. on the right side back. (8) Abrasion 6 cm. x 2 cm. on the right side back on the scapular region. Rana Pratap (1) Lacerated wound 3 cm. XI cm. X bone deep on the left side skull back to the left ear. (2) Lacerated wound 1 3/3 cm. X 1/2 cm. X bone deep on the left side skull 9-1/2 cm. back to the left ear 3-1/2 cm. anterior and above injury No. 1. (3) Lacerated wound 3 cm. X 1/2 cm. X bone deep on the left side skull just attached and above injury No. 2. (4) Lacerated wound 4-1/2 cm. X 1 cm. X bone deep on the left side skull 9-1/2 cm. above and medial to the left ear. (5) Abrasion 3 cm. X 1 cm. on the left thigh outer aspect 10 cm. above the left knee. (6) Lacerated wound 1 cm. X 1/4 cm. X 1/4 cm. on the left right finger on palmer aspect in middle. Sri Gopal Singh (1) Lacerated wound 4-1/2 cm. X 1/4 cm. X scalp deep on the top of the skull right aide 12 cm. above and medial to the right ear. (2) Lacerated wound 5 cm. X 1/2 cm. X bone deep and the middle of the skull 3-1/2 cm. anterior and middle to the injury No. 1. (3) Lacerated wound 3 cm. 1 cm. X scalp deep on the left side skulli 6-1/2 cm. above the left eye brow. (4) Abraded contusion 4 cm. X 3 cm. on the front of the left ear. (5) Abraded contusion 9 cm. X 5 cm. on the left forearm out and back aspect 9 cm. above left wrist. (6) Contusion as a whole on the palmer aspect of the right index and middle finger. (7) Contusion 9 cm, X 1-1/2 cm. on the front of the left thigh 26 cm. above the left knee. (8) Abrasion 5 cm, X 1/2 cm. on the right buttock. Laxmi Singh s/o Satya Narain (1) Lacerated wound cm. X 1 cm. X bone deep on the left side skull 10 cm. above and medial to the left ear. (2) Lacerated wound 6 cm. X 1 X cm. bone deep on the left side skull 3 cm. anterior and medial to injury No. 1. (3) Lacerated wound 5 cm. X 2-1/2 cm. X bone deep in the middle of the skull 2 cm. back to injury No. 2. (4) Lacerated wound 2 cm. X 1/4 cm. X skin deep on the left ear. (5) Contusion 30 cm. X 6 cm. on the left side back vertical. (6) Contusion 12 cm. X 3 cm. on the right side back just below the right scapula. (7) Contusion 7 cm. X 2 cm. on the outer aspect of the right upper arm in the middle. (8) Two abrasions in an area of 3 cm. X 1-1/2 cm. on the right thumb tip dorsal aspect. (9) Abraded contusion 22 cm. X 5 cm. on the left knee and lee front. (10) Abraded contusion 12 cm. X 5 cm. on in right knee. Shyam Lal (1) Traumatic swelling as a whole on the right foot and ankle joint as a whole. Smt. Sukh Dei (1) Scabbed abrasion 1 cm. X 0. 2 cm. on the outer border of right wrist joint. (2) Abraded contusion 3 cm. X 2 cm. on the dorsum of the right foot near the base of great toe. (3) Two central and one lateral incisors loose in sockets. The root of upper and lower incisor was exposed, there was no bleeding nor was any sign of injury on the internal aspect of lips detected. 9. Laxmi Singh s/o Kashi Singh had died and his deadbody was sent for post mortem examination. The post mortem report has been proved and marked as Ext. Ka. 12. 10. Heard Sri A. D. Giri, Senior Advocate, appearing for the appellant and Sri K. C. Saxena, A. G. A. for the State and perused the record. 11. The prosecution in support of its case examined 19 witnesses. The accused appellants had made statements under Section 313, Cr. P. C. and denied the prosecution version of the incident and elaborate statement was given by Ram Narain giving the counter version of the incident. The said that Smt. Sukhdei owned house No. 373 and it existed towards west. Towards east of the house of Smt. Sukhdei there was a house of Smt. Gungia, Patia. and Daiya, the number of which is 375. Ram Narain appellant stated that in the year 1976 he entered into an agreement for sale in respect of the house m question and got the sale-deed executed in the name of his wife. He further stated that the exit of the house in question was towards south and that Jagat Naratn and Ram Narain were its zamindar and their heirs used to realise Parjwat (tax ). He further stated that after the sale-deed the name of his wife was mutated over the house. He had entered into possession after the execution of the sale deed. Sri Gopal Singh and Laxmi Singh etc. wanted to grab this house and had forcibly snatched the key of this house. It was said by tax appellant on the date of the incident at about 5. 30 p. m. he and Rim Kishore were returning from the company after finishing their days work and when he reached in front of the house, he found that its lock was broken open. Smt. Sukhdei was standing outside. He enquired from her as to who had opened the lock, on which she started abusing. Ram Narain stated that he was going to lodge the report at the police station. The moment he proceeded Laxmi Singh struck him with lathi from the back. He ran towards his house but in the meantime when he reach had near the neem tree Sri Gopal, Laxmi Singh Narain, Shyamlal and Nandlal armed with lathi and Rana Pratap armed bhujali had come. Ram Kishore tried to intervene but he was also assaulted by these parsons. Mohan came to his rescue but he was assaulted with lathis and bhujali. He stated that Mohan, Ram Kishore Hari Shanker and Ramashaaker wielded lathis in self-defence, as a result of which the other side also sustained injuries. He also stated that Smt. Sukhdei and Razia were also accosting at the turn of the Gali. He denied that the Marpit took place in the lane but it took place under the neem tree. Ha also stated that he want to lodge the report at the police station but he was arrested. Appellant Ram Kishore stated the same story as was stated by Ram Narain appellant. Prem Nath appellant denied to be present at the place of occurrence at the time of the incident. Mohan narrated the same version given by appellant No. 1. He stated to have wielded lathi in self-defence Hari Shanker also raised the plea of self-defence and that he wielded lathi to save his father Hari Krishna stated that he was a peon in the Municipal Board and at the time of the incident he was on his duty. Ram Shanker also raised the plea of self-defence and stated that he had also wielded lathis to save his father, uncle and Mohan. 12. The defence also examined seven witnesses, namely, Nazir Anwar Khan, Mohammad Kamil, Chandrika Prasad, Mohd. Rafiq, Dr. Abdul Haleem and Jokhan as D. Ws. 1 to 7 respectively. 13. DW 6 Abdul Halim examined the injuries of Ram Narain and proved the injuries report Ext. Kha 5. He found the following injuries: (1) Lacerated wound 5 cm. X 1 cm. X bone deep on top of skull just left to sagittal line 10 cm. above root of left ear crushed. Complain of pain in front of chest but no marl of any external injuries detected. Injury No. 1 is caused by blunt object. Dr. Halim also examined the injuries of Ram Kishore and proved the injury report Ext. Ka. 6. He found the following injuries : - (1) Lacerated wound 6 cm. X 1/2 cm. X bone deep on fight temporal part of skull 5 cm. above right eye brow and 9 cm. from the root or right ear crushed. (2) Lacerated wound 1-1/2 fern. X 1 1/2 cm. on palmer surface or right thumb middle phalanx and muscle deep scab formed. (3) Contused traumatic swelling in the area of 8 cm. X 3 cm. on between right shoulder and the root of neck 6 cm. from acronioclavicular joint and 3 cm. above right clavicle reddish. All injuries are simple caused by blunt object. Duration fresh, complaining in front of chest. But no external injury detected. 14. The cross F. I. R. lodged at the police station numbered as Crime No. 193-A of 1978 was also investigated by the police and the charge-sheet was submitted. Both the Sessions Trials proceeded simultaneously but the cross case failed and the accused persons therein were acquitted. No Government appeal against the said judgment or criminal revision against acquittal was filed. We are concerned only with the appeal of the present appellants. 15. The prosecution witnesses Shri Gopal Singh, Laxmi Narain, Rana Pratap Singh, Mahadeo, Pakhandu and Sukhdei DWs 1 to 6 testified the version of the occurrence as disclosed in the F. I. R. After lodging of the F. I. R. the case was registered and the preliminary investigation was started by Sub-Inspector Sri Gorakh Nath Singh. He had prepared the inquest report. Dr. V. P. Gupta had examined the injuries of the injured persons and had also conducted the post mortem examination of the deadbody of Laxmi Singh. The injuries of the injured witnesses were also examined by Dr. V. P. Gupta on 7-8-1977 at the District Hospital, Mirzapur from 8 p. m. to 9. 30 p. m. 16. After hearing the learned counsel for the appellants and learned Additional Government Advocate, the dispute and occurrence at the place of incident is apparent and not disputed. It is also established that both the sides received injuries. The vital point for consideration is whether the incident occurred in the manner as alleged by the prosecution or was originated in the fashion, as suggested by the accused- appellants and the latter had a right of self-defence. The central issue in the case is the house, which is the bone of contention. The prosecution case, as disclosed, is that only Smt. Shukhdei claimed the house in question to be her house and also to be in actual occupation thereof. It is also stated that two tenants also lived in the said house on her behalf. None of the injured PWs raised any claim over the house in question nor could any of them urge that they got any concern with the same. Appellant Ram Narain claimed to be in possession over the house in question on the basis of a sale-deed executed in the name of his wife. The crucial point that falls for consideration is who was in actual possession over the house in question on the date of occurrence. 17. The learned counsel for the appellant placed the evidence of injured witnesses PW 1 Gopal Singh, PW 2 Laxmi Narain Singh and PW 3 Rana Pratap Singh. Whose injuries were examined soon after the incident. The evidence of PW 6 Smt. Sukhdei who also is said to be an injured witness, whose injuries were examined on 8-8-1977 next day who was taken to the Medical Officer by one Rajpat who is not of the police investigating agency. Her injuries have already been quoted at page 6 of the judgment. PW 1 Gopal Singh, complainant in his statement stated the facts narrated in the FIR i. e. on the date of incident at about 5. 30 p. m. the appellants had gone to take forcible possession of the house of Smt. Sukhdei. Smt. Sukhdei had obstructed, altercation had started and Ram Narain appellant had accosted. Complainant and others were helpers of Smt. Sukhdei on the accosting of Ram Narain, all the appellants started assaulting. Laxmi Narain Singh deceased and Laxmi Narain Singh PW 2, Rana Pratap Singh, Shyam Lal and Sri Gopal intervened, who were also assaulted. Salt. Sukhdei, Rajia and one more woman were pelting stones and brickbats. Ram Kishun, Ram Narain and Mohan also had received injuries. Smt. Sukhdei during the intervention, had wielded sickle (Hasya ). So stated that the incident was witnessed by Mahadeo, Pakhandu, Gulab and Raghunath besides amongst others. Gopal Singh PW 1 had stated to have received injuries and had fallen down. Laxmi Singh had received several injuries at the hands of the appellants. He was unconscious. After hit 5invention, the appellants fled away. 18. PW 1 Gopal Singh, his brother Laxmi Narain, Rana Pratap Singh, Laxmi Singh and Shyam Lal went to the police station. Report was got written on the dictation of Shyam Lal which was proved by him and marked asext. K. a-1. He also proved that the injured witnesses and the victim were medically examined Laxmi Singh, the same day, Laxmi Singh had died on account of the injuries in the hospital at 9. 30 p. m. The injured persons were admitted in the hospital. It is to be noted that Smt Sukhdei PW 5 was not sent for medical examination that day. The witness also stated that the house on which the appellants were attempted to take forcible possession is occupied by Sukhdei by last 15-20 years and still the house was in her possession. Two of her tenants Smt. Sarwatia and Kallu occupied as her tenants. Gopal Singh PW 1 stated that on his report Sarju, Jhagru, Jamuna and Baiju were prosecuted and in that ca. fi Pakhandu was his witness. Pakhandu's house is at about 125-150 paces from the place and he had appeared as a witness of Gopal Singh. The casa was decided and the accused persons were acquitted. Laxmi Singh deceased was in service in a sweet-meat chat shop at Varanasi. He had come alone from Varanasi. He wanted to start sweet-meat shop there. It is admitted that the litigation between Sukhdei and Ram Narain, appellant continued for the last two months. He had to admit that he had heard that Ram Narain appellant had purchased the house in question by the sale-deed got by some other person but from whom he was got the sale-deed was not in his knowledge. Rajpat, who had taken Sukhdei from medical examination in the hospital, had a son, who was a rickshaw-puller. Gopal Singh stated that he does not know the number of the house. Before two months of the occurrence, he had heard that the appellant-Ram Narain had purchased the house. Raja Ram, who is the husband of Smt. Sukhdei had filed a civil suit in respect of the house in question and lost the suit. Gopal Singh stated that he has no concern with the house in question for he has any reason to go near the house. He had no talk about the house in question with Sukhdei. He admitted that there was a door affixed in the southern side of the house in question and a lock was put thereon. After the occurrence, he stated that there were door leaves. What happened to the door leaves of the said door to the house in question, could not ba said. He admitted that on the date of the occurrence, the door of the house had not been broken by the accused-appellant. He stated that the house in question is a kutcha house. There are two doors in the said house, One leads to the courtyard and the other leads to a room. The door which leads to the courtyard was not there after the occurrence. The door affixed on the room on the northern side still existed and the lock was still there as well as the door leaves of the said room leading to the room. He stated that the lock was put by Sukhdei. He also stated that Sukhdei lived with a son at Obra, some times she used to live in the house in question also Kallu Harijan and Kabutari are Mallah by caste who were living in the said house for the last 10-15 years. He also stated that previously Sukhdei PW 6 lived in the eastern side of the house but since, the tenants occupied the house Sukhdei started living in the western portion of the house. The entry and exit of the house in question which is in occupation of Kallu and Kabutari has a separate door for egress and ingress, on the western side. Gopal Singh stated that on hearing the noise at the time of occurrence, he was standing at the door of his own house. He, his son, Rana and Shyam Lal reached the place of occurrence. They did not have any weapon with them and were empty handed. When they reached, his brother, Laxmi Narain and Laxmi Singh were present there. They were also empty handed. The marpit continued for 2-4 minutes in which are Kishore, Ram Narain and Mohan have received injuries which he had seen. He denied that he, Rana, Laxmi Singh, Shyam Lal and Laxmi Narain caused any injuries to the appellants. He stated that he had seen Ram Narain, Ram Kishore and Mohan receiving injuries from pelting of stones. The marpit took place in the land towards the northern side. There was no marpit in the eastern side of the house. He denied having seen how many pelting injuries were received by any person. He said that he had seen the ladies pelting stones. This he has been from his own house. He had stated that in the report, he had not specifically mentioned that Smt. Sukhdei had wielded sickle (Hasiya ). 19. PW 1 Laxmi Narain reiterated the facts stated by PW 1 Gopal Singh. He is in his cross-examination admitted that there was no enmity with the accused appellants. He denied that any case was initiated by his brother against Sarjoo, Jhagru, Jarna and Baiju under Section 307, IPC. He also admitted that a civil suit was filed in respect of the house of Raja Ram son of Sukhdei. He showed ignorance about whether the civil suit failed. He could not disclose the number of the house in question. 20. PW 2 Rana Pratap Singh is also an injured witness. He also said to have reached the place of occurrence on hearing the noise empty handed. Rana Pratap Singh PW 3 stated that the accused had only lathis with them and no other weapon. He had not seen any injury on the person of Sukhdei PW 6. He also stated that she was pelting stones and stones were found scattered there in the lane. 21. PW 4 Mahadeo is not an injured witness, he had seen the occurrence and had reached the place on hearing the noise. He stated that Sukhdei was at her door. Lallan, Ram Narain, Mohan, Prem, Raj Kishore, Rama Shanker and Hari Shanker were also present. All the accused appellants were present there, armed with lathis. They were trying to take possession of her house by force. It is very important to note that Mahadeo PW 4 stated that the accused-appellant has inflicted first injuries and beat Sukhdei with the head of the lathi. It is evident from the injuries of Smt. Sukhdei proved in the case that the injuries could be said to have been caused with the head of a lathi. He had stated that all the seven appellants have beaten Gopal, Shyam Lal and Rana Pratap with lathi (Goji ). It is well-known that Goji is also a lathi which is thick and stout lathi. He also stated that he had seen Sukhdei pelting bricks and stones on the accused-appellants which had hit them. Sukhdei brought a sickle (Hasia) and inflicted injuries on Mohan and Laxmi Singh. After receiving lathi injuries they fell down and then also the accused-appellants beat him with Goji (lathi ). Pakhandu and Raghunath had also arrived on the scene of incident. 22. PW 5 Pakhandu is also not an injured witnesses who had given eye-witness account. He stated that the accused-appellants were pushing Sukhdei for taking forcible possession of the house. She was resisting. She was given a slap and also given fist and lathi injuries. Sukhdei was crying. Laxmi Narain and Laxmi Singh had reached there who had intervened. Ram Narain-appellant had accosted to kill them. He was supporting Sukhdei and the seven appellants started assaulting him with danda. Gopal Singh, Rana Singh and Shyam Lal also came there and tried to intervene and all the seven accused persons assaulted them with lathis. He also stated that Sukhdei had given a Hasia blow to Mohan. Mohan had received injuries. Raghunath, Guiab and Mahadeo had seen the incident. He stated that at the time of occurrence of mar pit, Sukhdei had opened the door on the southern side. After the marpit was over, Sukhdei had open the door leaf and not before it. He denied that the house in question and the house of Sukhdei have been separated by partition through courtyard. He denied that after the occurrence, Sukhdei invited Kabutari in the house in question. He stated that Kabutari is occupying the house as tenant. 23. PW 6 Sukhdei was examined and narrated that on the date of occurrence in the evening at 5. 30 p. m. she was sitting at the door of her house. Seven accused appellants had come with lathis and told her to leave the house saying this is our house, have got the sale deed of it. Sukhdei closed the door from inside, then Ram Narain appellant gave her two slaps. Har daughter-in-law raised alarm. On the alarm of Sukhdei and others, Laxmi Singh, Ram Narain came and started intervening. Ram Narain appellant told them to beat them as they were helpers of Sukhdei. Sukhdei admitted to have caused injuries by sickle to Mohan Lal. She stated that she was assaulted with lathis which had hit her waist, legs and she ran away after the occurrence. After the occurrence, civil suit was filed by her impleading Mahadeiya as defendent as Ram Narain appellant had purchased the house from Mahadeiya. Before filing of the suit, she stated not to have seen the sale deed. Her suit was dismissed. She stated to have filed an appeal. What had happened in the appeal thereafter and she could not say. It has been brought to our notice that the appeal also have been dismissed. She stated that she knows only her house. She is not aware of the ward or her house number. She also showed her ignorance as to on which land the house in question was built, whether it was purjawat land or not as the house was not built by her. She denied to have paid any purjawat tax. It may be that her nephew or husband had given purjawat tax. She stated that after 3 or 4 months of the occurrence, because of the rain, the door leaves became rotten and she herself removed the same and kept them else where one of the door leaves is still with her, she stated. She also stated that seven persons jointly beat her with the head of the lathi (lathi ke hora), she stated that entire marpit had taken place in the lane itself and no marpit took place beyond the gali. 24. Besides the witnesses of fact, the prosecution examined PW 7 Gorakh Nath Singh, S. I. who had started the investigation after lodging of the FIR. He stated to have visited the hospital and recorded the statement of Shyam Lal and in the hospital interrogated the accused person also namely, Ram Narain, Ram Kishoro and Mohan Lal. The deadbody of Laxmi Singh, deceased was examined by him and in presence of the witnesses, panchayatnama was prepared which was proved and marked as Ext. Ka 2. Necessary papers concerning the deadbody of Laxmi Singh for sending it to the mortuary for post mortem was prepared by him. The chalan nash, naksha nash, sample seal ware prepared, and the letter for post mortem was sent by him under his signature to the medical officer. The aforementioned documents have been proved and marked as Ext. Ka 3 to Ka 6, respectively. The wearing apparel i. e lungi, underwear and chadar were taken in possession and sealed in a bundle, which was deposited at the police station through Constable Gyan Chandra Singh Paras Nath Dr. V. P. Gupta PW. 8 who had examined the injuries of Laxmi Singh deceased which have been proved by the said witness. He had also proved the injuries of Rana Pratap Singh, Gopal Singh, already detailed above. He had also conducted the post mortem examination and has proved the post mortem report, Dr. P. C. Kanaujia, PW 9 proved the injuries of Smt. Sukhdei whom he had examined on 8-8-1987 at 3 p. m. brought to him by her son. This witness stated in the cross-examination that injuries No. 1 and 2 could be manufactured also and the third injury found and noted in the report is about two central incisors teeth which were dislocated in the sockets of the gum. There was no bleeding nor any swelling m the gum, or lips nor any injury there. The gums were not healthy. The learned counsel for the appellants submitted that the third injury about two central incisors teeth was the injury caused during the marpit. She was a middle aged woman and her gums were not healthy and the two teeth were loose in the sockets because of internal decay and age. Sri Nagendra Singh, S. I. Investigated the case and submitted the charge-sheet. He stated that he recorded the , statement of Smt. Sukhdai PW 6 after fourth day of the occurrence. No Hasia (Sickle) was produced by her before him. The I. O. had prepared a sketch map of the site. He admitted not to have investigated of seen any document about the ownership of the house in question. Neither he had been shown any document or paper about the controversy nor the I. O. thought it necessary to examine such document. The Investigating Officer PW 10 Nagendra Singh has admitted in his cross-examination that he had seen the house of Smt. Sukhdei and had gone inside her house. He stated that there was a door on the southern side of the court-yard of her house. At the time of inspection, there was no lock on the door, besides, the said door in the house of Sukhdei, there were two other doors on the southern side and there were two adjacent portions of the house which had separate portions in the southern side. The said doors were also not locked. He had not investigated or seen any paper about the ownership of the house from Nagar Palika, nor he tried to find out the number of the house. 25. The learned counsel for the appellants Sri A. D. Giri placed the site plan prepared by the Investigating Officer. PW 10 Nagendra Singh. The site plan shows one door towards the south on the rasta of her house. He also indicated that there are two other portions in the southern side, one leads to the courtyard, other leads to the portion marked with name of Sarbatia and the third with a door on the south in the portion shown in the name of Kallu Harijan. The learned Session Judge referred to the spot inspection made by him and also had prepared a site plan shown the actual situation of the house. A memorandum also prepared by him have been made part of the recorded. The detailed inspection memorandum prepared by the learned court below is not a memorandum but a detailed inspection made by him which on perusal shows that he found the actual position at the site which is different from the report of the Investigating Officer, PW 8 Nagendra Singh. He stated that there is no demarcating wall or line separating eastern and western portions. Thus, he was of the opinion that the courtyard is common for the two portions. He in his inspection now recorded that after the lane towards the south, there is a number plate of house bearing No. 374 which is the house of Jhallu. The learned counsel for the appellants submitted that there is no dispute that the western portion of the house bearing house No. 73 is the house of Smt. Sukhdei and the eastern house is a separate house having opening towards the south in the lane which belonged to Smt. Patiya from whom the sale-deed was obtained by Ram Narain appellant in the name of his wife. The learned counsel for the appellants submitted that the inspection memo and sketch map prepared by the learned Judge is wrolly inadmissible in evidence. He submitted that the inspections could have been made by the learned Judge to appreciate the evidence on record. He committed an illegal procedure in preparing a sketch map reducing himself to the position of a witness and an investigator. The conclusion of the court below that the whole building is a single house is not correct. He infers that two different owners of two separate houses cannot have a common courtyard without demarcation. The defence examined witness DW 7 Jokhan who said that in between the two houses there stood of wall of human height in the court yard and no one could go to the eastern portion of the house from western portion through the courtyard. The learned counsel for the appellants is correct in submitting that the court has ample powers to make local inspection. The Hon'ble Supreme Court in AIR 1985 SC 1664 - Kaisan Kumar Singh v. State of Manipur, and observed "normally, a court is not entitled to make a local inspection and even if such inspection is made, it can never take place of evidence or proved but is really meant for appreciating the evidence at the spot. " The Apex Court relying on AIR 1956 SC 415 - Preetam Singh v. State of Punjab, where the court was pleased to observe "a Magistrate is certainly not entitled to his view or observation to take the balance of evidence because such view or observation of his cannot be decided by cross- examination and the accused would certainly not be in a position to furnish any explanation in regard to the same. " 26. The other witnesses examined by the prosecution were PW 11 Paras Nach who took the deadbody in sealed condition for post mortem examination, PW 12 Abdul Halim, constable, sent the information of the death of deceased Laxman Singh, PW 13 Sheo Murat Constable proved the depositing of the articles recovered, PW 14 Kallu Ram, Constable Moharrir proved the report of marpit on 9-12-96, PW 16 Jai Ram Singh, Head Constable at the time of occurrence, who had registered the FIR. PW 17 Paras Nath Singh, constable, who had sealed the recovered articles, PW 18 R. P. Pandey, Clerk in District Hospital, Mirzapur, who has received the sealed bundles and PW 19 Sri Gyan Dutt Misra, SI stated that no body could see the bundles so long as they remain in the Sadar Malkhana. 27. From the evidence on record there is no doubt that an incident did take place in which the complainant and appellants sides both had received injuries and a person of the complainant side, namely, Laxmi Singh had died. The important point, which would be vital for consideration, is whether the incident took place in the manner, as stated by the prosecution, or it originated in the fashion, as suggested by the defence and whether the accused-appellants had a right of self-defence. The complainant-informant and the injured persons in the incident on the side of the complainant, except Smt. Sukhdei PW 6, none claimed to be the owner of ma house in question nor claimed to be in possession of the house in question in any capacity. On the contrary the appellant Ram Narain claimed to be in possession of the house on the basis of a sale-deed obtained in the name of his wife. The crux of the matter would be to consider and decide as to which of the sides, namely, Ram Naraia appellant or Smt. Sukhdei was in occupation of the house in question at the time of the occurrence. We have already referred to the inspection made by the learned Judge of the place of occurrence and he prepared a site plan and inspection name. We have already expressed our view relying on the decision of the apex Court about the procedure of the inspection made by the trial court. 28. We would consider and examine the evidence of the prosecution to find out as to which side was the owner and in occupation of the house in question, PW 6 Smt. Sukhdei claimed to be the owner of the house in question in respect of which the occurrence took place. ' She stated that on the date and time of the occurrence the appellant Ram Narain, Ram Kishore and others had come armed with lathis when she was sitting at the door of her house, asked her to get out of the house saying that 'it was their house. We have got its sale deed. Then she closed the door from inside. Ram Naram gave two slaps to her. The daughter-in-law of Sukhdei raised alarm, hearing which Laxmi Singh and Laxmi Narain came and started intervening and Ram Narain appellant said beat him, he is a helper of Sukhdei and all the appellants started assaulting Laxmi Singh and others, who had come. Her statement was that when Ram Narain and others came she was sitting at the door of her house. Ram Narain and others asked her to get out of the house as Ram Narain had purchased the same, thereupon she bolted the door from inside. If she had bolted the door from inside, then where was the occasion for the accused appellants to have assaulted Sukhdei. She claimed to be an injured witness but her injuries were so superficial that Dr. V. P. Gupta PW 8 had to admit that two of her injuries could have been manufactured. The third injury about the incisors which were loose in the tooth socket cannot be said to be because of assault on her. She is the middle aged woman and her gums were not healthy. No tooth had been broken. There was no swelling in the lip or outside, which clearly shows that the loosing of the tooth in the tooth socket was not because of any injury but it was on account of decay of tooth in normal course. Her injuries were not examined the same day when Gopal PW 1, Laxmi Narain PW 2 and Rana Pratap PW 3 were examined but on the next day, that too not through police. She was taken to the hospital by her son. She stated that the accused-appellants had beat her with head of the lathi (lathi he Hoora Se), which would cause normally such injuries which at no stretch could be said to be manufactured The injuries shown to be caused on Sukhdei PW 6 thus appear to be manufactured and we are not in a position to believe the same to be genuine. 29. Smt. Sukhdei PW 6 stated that she was not aware of the house number or ward in which her house is situated. Even she showed her ignorance about the nature of land or whether she ever paid purjawat tax. The door of the house in question, which is the bone of contention of the parties, is not there when she deposed before the Court. She gave a very strange explanation about the disappearance of the door leaves saying that they have been deteriorated on account of rain water and she said that she had removed them. She denied the knowledge of the sale-deed of the house in favour of appellant Ram Narain's wife. It is proved from the evidence on record that a suit was filed by her for declaration in respect of the house in question against Smt. Patia and the suit was dismissed and the appeal was pending at the time of the Sessions Trial, which too has been dismissed later as is evident from the certified copy of the decree on record. 30. Smt. Sukhdei stated that Kabutari and Kallu were her tenants paying rent of Rs. 5 and 8 respectively. PW K Kallu Ram and PW 15 Kabutari are witnesses in the case. Kallu Ram PW 14 stated that he occupied the house in question as a tenant. He has his own house towards south beyond the lane. He stated that he lives in the rented house and in his own house his brothers, parents and his son live. He stated that his ration card had been discontinued and, he was not taking the ration on the ration card for the last 6- 7 months. He could not state whether his name is recorded as a voter from the house in question and what number of the house was recorded. He has no receipt for payment of rent. He stated that he paid Re. 1 as rent whereas the statement of Smt. Sukhdei PW 6 about the rent paid by Kallu is contradictory to what Kallu had said and similarly the statement of Kallu Ram PW 14 about ths rent paid by Smt. Kabutari as Rs. 10 per month is also contradicted by the statement of Smt. Sukhdei. Smt. Kabutari PW 15 stated that she had voted in the election but could not give the house number from where her name was recorded in the voters list. She stated that she was never interrogated by the police nor Sukhdei or Gopal produced her before the police for interrogation. There is no record with her to show that she occupying the room in the house in question. PW 10 Nagendra Singh I. O. has not investigated the case to find out as to who is the owner of the property in question. He had not tried to see from the Municipal records nor made any attempt to find any house number, as such the house number was no where mentioned by the prosecution. 31. The defence examined DW 1 Nazir Ahmad, who proved the execution of the sale-deed in favour of Smt. Mahdei. He also stated that the original sale deed was on the record of civil suit No. 338 of 1977 Raja Ram v. Mahdei, of the court of the Munsif Mirzapur. The agreement for sale is also proved to be on record dated 13-7-1976. Raja Ram is the son of Smt. Sukhdei. DW 5 Mohd. Rafiq is a witness of agreement for sale of the property in question in favour of Ram Narain appellant. He also proved that purjawat tax was paid for the land to the Zamindar. After the sale deed possession was given to Ram Narain appellant. These two defence witnesses proved the fact that the house in question, namely, house No. 375 was purchased by Ram Narain in his wife's name. DW / Jokhan, who is the Karinda of the Zamindar, proved that he had realised Purjawat tax from Smt. Patia, who lived in the house in question. He proved the original receipts issued for payment of purjawat tax, which are on record of civil suit No. 338 of 1977. It is Smt. Patia who had executed the sale deed in favour of the wife of Ram Narain appellant. 32. The learned counsel for the appellants submitted that the documentary evidence and oral evidence of the defence witnesses show that the house in question is an independent house bearing number 375 and is recorded in the name of the wife of appellant No. 1 Ram Narain. The civil suit was filed on behalf of Smt. Sukhdoi by her son on 23-11-1977 much after the occurrence and there also they failed to prove their possession of claim of title. 33. The learned Sessions Judge, as observed earlier, has committed a patent procedural irregularity by making a site plan himself and after inspecting, during an inference on the basis of his site plan and inspection which have been depricated by the Hon'ble Supreme Court, already referred to above. The learned Sessions Judge could not have assumed the duty of an investigator himself. The I O. of the case was under a legal duty and obligation to find out about the ownership and possession of the house on the date of occurrence. The perusal of the site plan prepared by the I. O. proved in the case shows that the house of Smt. Sukhdei opened towards north and the door of the house in question or the portion of the house in question opened towards the western side on the Gali. It cannot be said that the prosecution discharged its burden of proof that the house in question was in possession at the relevant time of Smt. Sukhdei or her tenants. None of the persons, namely, Kallu Ram and Smt. Kabutari PWs 14 and 15 respectively, stated to be in occupation as tenant of the house. It is not the case of the prosecution that the accused-appellants were trying to out Smt. Sukhdei from the portion of the house, the opening of which towards northern side. If the prosecution case is correct, and the accused appellants were trying to get possession of the portion of the house allegedly in possession of PW 14 Kallu Ram and PW 15 Smt. Kabutari, they were the persons whom the accused-appellant would ask to vacate and not Smt. Sukhdei. The statements of the prosecution witnesses do not show nor Smt. Sukhdei stated that the accused appellants attempted to dispossess Kallu PW 14 and Smt. Kabutari PW 15, which creates a genuine doubt in the mind of the Court about the prosecution evidence why the real occupants, if at all they were in possession, were not even asked to vacate by the accused-appellant No. 1. The learned Sessions Judge in his judgment observed that the origin of Marpit is not doubtful. We fail to understand on what basis the learned Sessions Judge observed that the origin of marpit is not doubtful. The above observations clearly show that the origin of marpit, as stated by the prosecution witnesses, cannot be said to be correct or at least it is doubtful. Sri K. C. Saxena placed the statement of appellant Ram Narain and submitted that Ram Narain has stated that the house number is 375, which is towards east of the house of Gungia, Daiya and Patia. The said house was purchased by him in the name of his wife and the opening thereof is towards the lane. He also stated that the house No. 374 is the own house of Kallu Ram. Smt. Patia has died. Gopal, Laxmi and others were forcibly trying to take the the house in question of Patia and even had snatched the key thereof from her. After the sale deed was obtained by Ram Narain he came in possession. In the evening of the date of the incident he was coming at 5. 30, saw that the lock of the door of his house was opened. Smt. Sukhdei was standing outside. He asked her who had opened it. She started abusing appellant No. 1. On hearing that the appellant No. 1 was going to police station to lodge a report Laxmi Singh had assaulted him on the head with lathi. He ran towards his house. Near the neem tree where Gopal Laxmi Singh, Laxmi Narain, Shyam Lal were present with lathis Rana Pratap with Bhujali, Ram Kishore intervened and the complainant and his party assaulted the accused persons with lathi. Mohan son of Ram Narain appellant came. He was also assaulted with lathi and Bhujali. The accused Ram Kishore, Hari Shanker, Rama Shanker and Mohan also wielded lathis in self-defence, which caused injuries to the complainant also. 34. The other aspect that has to be examined is as to whether the incident took place in the land at the door of the house in question. The I. O. has admitted that the blood was recovered from three places beyond the Gali also. The site plan prepared by the I. O. and proved in the case case shows that the blood was recovered from places 'b', 'c', and 'd', 'd' is towards east in the open much beyond the lane. PW 1 Gopal Singh stated that the marpit had taken place in the lane is also not correct and is contradicted by the site plan The learned Sessions Judge in Para 24 of his judgment observed that 'since civil suit No. 338 of 1977 was filed after the occurrence for declaration and injunction in respect of the house in question against Smt. Mahdaiya wife of appellant No. 1, it was of no consequence'. The learned Judge erroneously observed that if the suit was dismissed under Order XVII, Rule 2, C. P. C. this decision was conclusive so far as the rights of the parties is concerned, is not correct and is erroneous and perverse findings have been recorded by the Sessions Judge. The suit was not filed by the appellant but it was filed by the son of Smt. Sukhdei. The judgment whether it is under Order XVII, Rule 2, CPC was a judgment of a competent court, which too was challenged in appeal and the appeal also failed. The view of the court below is patently erroneous. The learned Judge also erroneously observed that the entries in the municipal records about payment of house tax, purjawat tax, water tax, sale deed were all mere paper transaction without any affairs existing on the spot. We are unable to accept the observations of the learned Sessions Judge. 35. The prosecution was under a legal duty to prove its case beyond all reasonable doubt. The manner of the marpit and its origin, as shown by the prosecution, does not inspire confidence. There was no just and believable reason that the injuries of the accused persons are such, which have been proved by DW 6 Dr. Abdul Halim, cannot be said to be manufactured, In the FIR it is stated that the injuries caused on the accused aside were by pelting of stones and brick bats by Sukhdei and several ladies there and wielding of the sickle by Sukhdei. The injuries of the accused set side, quoted earlier, show that those injuries cannot be said to be caused by brick bats rather it indicates that they were caused by lathi. It may be that some stone pelting may also cause few of such injuries but the injuries are most of lathi or sharp edged weapon like Bhujali. 36. After hearing the learned counsel for the appellants and the learned A. G. A. and perusing the evidence on record, we are of the opinion that the prosecution cannot be said to have proved its case beyond all reasonable doubts and the prosecution witnesses above board and worthy of belief implicitly. We find sufficient force in the defence version and the evidence adduced by the defence. The judgment and order of the court below, thus, cannot be allowed to stand on the basis of such doubtful evidence. The benefit of doubt is to be given to the accused appellants. 37. The appeal is allowed. The appellants are given benefit of doubt. The judgment and order passed by the court below is set aside. The appellants are on bail. They need not surrender. Their bail and surety bonds stands discharged. Appeal allowed. .;