Sema, J.
1. These two appeals arise out of a common judgment and orderpassed by the High Court of Judicature at Allahabad dated 15th May, 2000in Criminal Appeal No. 1659 of 1979 and Government Appeal No. 2819 of1979. Criminal Appeal No. 1659 of 1979 had been preferred by Baljore (theappellant before us in Criminal Appeal No. 787/2002), who was convictedunder Section 302 IPC and sentenced to life imprisonment by an order datedIst May, 1979 passed by the VIth Additional Sessions Judge, Azamgarh, inSessions Trial No. 533 of 1977. Government Appeal No. 2819 of 1979 hadbeen preferred by the State of U.P. against the acquittal judgment by theTrial Court acquitting Mohar, Tikori and Tapsi (Mohar and Tikori areappellants before us in Criminal Appeal No. 658 of 2000) for the offencespunishable under Section 302, 324 and 323 read with Section 34 IPC. Bythe impugned judgment the High Court, after examining the evidence onrecord, dismissed Criminal appeal No. 1659 of 1979 preferred by Baljoreand he was convicted and sentenced to imprisonment for life under Section302 read with Section 34 instead of Section 302 IPC simpliciter, as recordedby the Trial Court. The High Court also allowed the Government AppealNo. 2819 of 1979 by reversing the acquittal of accused Mohar, Tikori andTapsi, as recorded by the learned trial Judge and convicted each of themunder Sections 302, 323 read with Section 34 IPC and sentenced them toundergo imprisonment for life and RI for a period of one year under Section323 read with Section 34 IPC. The substantive part of sentences weredirected to run concurrently. It appears that during the pendency of appealaccused - Tapsi expired and the appeal preferred by him stood abated. Nowonly the appellants Mohar and Tikori (in Criminal Appeal No. 658/2000) arebefore us.
2. Both the accused and the complainants are residents of villageUltahawa Dewara, P.S. Maharajganj, District Azamgarh. Ramraj -- P.W.-1and deceased -- Ram Awadh were also residents of the said village. Towardsthe north of the house of Ram Raj and Ram Awadh, there was anagricultural field of accused - Baljore. There was also an agricultural fieldof deceased Ram Awadh near by. It is stated that in the year 1977 peas cropwas existing in the filed of Ram Awadh and wheat crop was existing in thefield of Baljore.
3. The murder of deceased Ram Awadh and Hansraj is a sequel to thequarrel between Km. Kamli, daughter of deceased Ram Awadh andTufania, son of accused Baljore on 29.1.1997 while they were picking Kariand collecting grass adjoining their fields. It is stated that the quarrelbetween the two children was pacified by Balli (PW-3) and the childrenretired to their respective houses. When Ram Raj (PW-1) and his brother deceased Ram Awadh were present in front of their houses and Jagarjit(Jagdish) PW-4 son of deceased Ram Awadh was mulching cow in front ofhis door, it is said that accused Tapsi armed with lathi, Baljore, Mohar andTikori armed with spears appeared in front of the house of Ram Raj and onbeing exhorted by accused Tapsi (since expired) Baljore attacked deceasedRam Awadh with spear, accused Tapsi attacked Jagarjit (Jagidsh) with lathi.On arrival of deceased Hansraj accused Tikori and Mohar attacked Hansrajwith spears. Thereafter, the said accused started causing injuries on thedeceased Ram Awadh and deceased Hansraj with their respective weapons.Jagarjit (PW-4) and Ram Awadh (deceased) tired to save themselves byplying Hasuwa (sickle ) and lathi respectively. It is stated that the deceasedRam Awadh sustained injuries inflicted by spear caused by Baljore anddeceased Hansraj sustained injuries caused by Mohar. Jagarjit (PW-4)sustained lathi injuries. On an alarm being raised by Ramraj (PW-1) andinjured persons, Vibhuti (PW-2), Balli (PW-3) and Ayodhya came to thespot and witnessed the occurrence. After the incident, both the injured RamAwadh and Hansraj were taken to Police Station, Maharajganj, at a distanceof about five miles from the place of occurrence, and Ram Raj (PW-1)lodged the First Information Report at about 8.50 p.m. Head Constable,Yadunandan Singh (P.W.6) prepared the First Information Report (Ex. Ka-1)and registered the case vide extract G.D. (Ext. Ka-2) under Sections 232,324 and 307 IPC.
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'ANTE MORTEM INJURIES
1. Abrasion 1/2 cm x 1/2 on the right side nose middle.
2. A stitched wound 2.5 cm long with one stitch on the left ofchest lower part 22 cm from anterior axillary fold.
ON INTERNAL EXAMINATION
Wall-injuries distended under ante-mortem injuries.
Pleura -- punctured on left side as described by antemortem injuries.
Diaphragm on the left side is punctured underneath injuryNo.2
Peritoneum - punctured below injury No.2Cavity contains about one pint blood material with foodmaterial.
Contents, wall perforated (1' x 1/2' x cavity deep) 5' from the pylorous.
Stomach - contains digested material about 4 oz.
The deceased was average built. Rigor mortis waspresent on the dead body. In the opinion of the doctor theinjury No. 2 was caused by pointed sharp edged weaponlike spear. The injury was sufficient to cause death inordinary course of nature. The death occurred as a resultof shock and hemorrhage due to said injuries. The doctorprepared post-mortem report Ext. Ka-15'
6. As noticed above Accused-Baljore had also filed a crosscomplaint and he also sustained injuries. On examination byDr. V.Pandey (PW-10), the accused sustained the following injuries onhis person;
1. Punctured Wound 2/10' x 1/10' x 1/10' at the backof left little finger, 1.1/2' below the top of the samefinger.
2. Construction with swelling 2.1/2' x 2', 8' below theleft elbow, on the left fore-arm, lateral aspect.
3. Contusion with swelling 2.1/2' x 1.1/2' on the rightupper and outer surface 2.1/2' above the right elbow joint.
4. Complaint of plain on the right knee joint.
5. Punctured wound 2/10' x 2/10' on the right of theback of chest 6.1/2' from the right nipple. Wound was notbleeding.'
7. It is also noticed that the counter complaint lodged by Accused-Baljorewas found to be false by the Trial Court as the First Report lodged byaccused Baljore, on 29.1.1977, was stated to be oral. Complaint by theaccused was disproved by Ex. Ka-17. It may be noticed that in Exh. Ka-17,the complainant did not mention the place of incident. In the subsequentF.I.R., in April, 1977, the accused stated that the incident had taken place inhis wheat filed. The learned trial court disbelieved the defence put up bythe accused on the basis of subsequent FIR dated 7.4.1977 (Ex. Ka-2), filedby Baljore. The Trial Court found that the said application had been filedafter a lapse of two months of the incident which was highly belated and theallegation made therein was highly improbable and well an after-though toset up the plea of right of private defence.
(a) In the evidence of Ramraj (PW-1) and Balli (PW-3) the presence of one Jagdish PW-4 at the place ofoccurrence is mentioned but the name of Jagarjit does notfind place in the FIR.
(b) Vibhuti (PW-2) explained that Jagidsh has hisalias (names) as Jagjeet and Jagarjeet, but this statementwas not supported by Ramraj (Pw-1).
(c) Ramraj (PW-1), Balli (PW-3) and Jagdish (PW-4)gave different versions regarding colour of cow whichJagdish PW-4 was said to have been mulching at the timeof occurrence.
(d) Jagdish (PW-4) stated that the prosecution partyplied sickle in order to save themselves but this fact hasnot been mentioned in the FIR and that the puncturedwounds of the accused Baljore and Tapsi could not havebeen caused by sickle.
(e) The injuries sustained by Jagdish (PW-4) were notexamined on the same day but the next day and thedoctor opined that his injuries could be self-inflicted.
9. Counsel for the appellants strenuously urged that the appellants haveacted in a right of private defence and that for the reasoning as noticedabove, the Trial Court has rightly recorded the acquittal of the twoappellants but the High Court was in error in reversing the acquittal of theaccused on appeal.
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