The case of the prosecution was this:- The deceasedPrakash Chandra was the father of the deceased Umesh Chandraand the injured witness Dinesh Chandra (P.W. 11) as well asof Gyan Chand (P.W. 1).Prakash Chandra and his sons wereliving in Seohara town, Bijnor district.The appellant RamKaran and his five sons including the deceased Chhotey Lalwere living in another house in the same town as theneighbours of Prakash Chandra and his sons.The appellant Ram Karan and fiveothers filed Civil Suit No. 34 of 1967 in the court of theMunsif, Nagina against Prakash Chandra and his brother GopiChandra and one Krishna Devi, alleging that whileconstructing the new house Prakash Chandra had encroachedupon a portion of their land.In that suit, Ram Karan gotCommissioners appointed by the court on five or sixoccasions for taking measurements of the properties with theobject of proving his case of encroachment by PrakashChandra.But those Commissioners' reports were set aside onthe objection raised by Prakash Chandra and the otherdefendents.The last Advocate Commissioner Mr. Mathur (C.W.1) visited the spot on 6.9.1970, accompanied by Mr. ZafarHussain (C.W. 2) who appeared for Prakash Chandra andanother and Mr. Mahesh Chand (C.W. 3) who appeared for RamKaran.After the completion of the survey work at about12.30 p.m. all the three lawyers were standing and talkingin front of Ram Karan's baithak at about 1.00 p.m. ThenPrakash Chandra and Umesh Chandra came there to talk withthe Commissioner.Ram Karan, who was present there alongwith his five sons, did not like that interference ofPrakash Chandra and Umesh Chandra with the Commissioner.Hestated that he has spent thousands of rupees for taking outthe commissions and that the reports of the Commissionerswere set aside on the objection of Prakash Chandra.Sosaying, he instigated his sons to kill Prakash Chandra andhis sons.Thereupon, Chhotey Lal and Ved Prakash attackedPrakash Chandra with knives while Sunil Kumar, Anil Kumarand Satish attacked Umesh Chandra with knives.On seeingDinesh Chandra (P.W. 11) who rushed meanwhile from theeastern side to help his father and brother, Ram Karaninstigated his sons to attack him and caught hold of him by402his waist, and all his five sons attacked him and inflictedinjuries.Then P.W. 11 took out a knife from his pent pocketand wielded it against Ram Karan and Chhotey Lal in self-defence and they sustained injuries.P.W. 11 receivedinjuries and fell down.Gyan Chandra (P.W. 1), who wasseeing the occurrence, ran to his house along with someothers and bolted the door when Sunil Kumar, Anil Kumar andSatish chased him for attacking him.Abdul Wahid, P.W. 10,and others who were witnessing the occurrence raised analarm, and Ram Karan and his sons ran away.Gyan Chand, (P.W. 1) came out of his house sometimelater and found his father Prakash Chandra and brother UmeshChandra dead and Dinesh Chandra (P.W. 11) lying withinjuries.He prepared the report, Ex. Ka. 3 and proceeded ina jeep with his brother Dinesh Chandra (P.W. 11), to SeoharaPolice Station situate about half a mile away and handedover that report at 1.30 p.m. Dinesh Chandra (P.W. 11) wastaken to Dhampur hospital after he was given first aid by aDoctor on the way.He was examined at the Dhampur hospitalby Dr. Bagchi, P.W. 3 who found on his person an abrasionand nine incised wounds of which injury No. 7 on the rightside of the chest through which blood and air were comingout was serious and the rest were simple.The dead bodies of Prakash Chandra and Umesh Chandrawhich were found lying in front of their house where bloodalso was found, were later sent for autopsy.Ram Karan andChhotey Lal went to the Government hospital, Bijnor wherethey were examined by Dr. Sarin (P.W. 2) at 4 p.m. and 4.15p.m.From the Judgment & Order dated the 15th April, 1975 ofthe Allahabad High Court in Crl.R.L. Kohli and S.K. Sabharwal for the Appellants.D.P. Uniyal and R.K. Bhatt for the Respondent.The following Judgments were delivered:FAZAL ALI, J. This appeal by special leave is directedagainst a judgment dated 15.4.1975 of the Allahabad HighCourt by which the Judges of the High Court while acquittingthe accused, Anil Kumar and Satish Kumar, altered theconviction of Ram Karan, Sunil Kumar and Ved Prakash fromone under ss. 302 and 307 read with s. 149 I.P.C. to oneunder ss. 302 and 307 read with s. 34, I.P.C. and confirmedthe sentences of imprisonment for life imposed on theseappellants.The entire occurrence seems to have been the result ofa chronic land dispute between the parties in which severalcommissions were issued and which ultimately proved futile.The prosecution has no doubt proved that the two personswere killed at the hands of the accused and that theoccurrence had taken place while the Commissioners werepresent at the spot though they were not able to see theactual assault and were, therefore, not in a position todepose the detailed manner in which the assault had takenplace.The only serious question on which we would like tosound a discordant note from our Brother Varadarajan, J. isas to the actual nature of the offence which had beencommitted by the appellants, Sunil Kumar and Ved Prakash.Itwould appear from the evidence398of CW 1 as also other eye-witnesses that the accused werealso assaulted with knife and one of them, Chhotey Lal, diedas a result of the injuries caused to him.The medicalevidence as also the evidence of CW 1 clearly shows thatthere was exchange of hot words, followed by the assault onthe appellants which, according to the prosecution, was aresult of the exercise of self-defence by the prosecutionparty, particularly Dinesh Chandra.In fact, the learned Sessions Judge and the High Courtheld that the accused were the aggressors and, therefore,they had no right of private defence.In order to ascertainwhether the accused had the right of private defence, thegenesis of the incident has to be traced.Now, in this casethe prosecution witnesses being partisan, the only importantinjured witness Dinesh Chandra, PW 11 being the son of thedeceased, it would be necessary to ascertain with accuracythe genesis of the quarrel as revealed from the evidence ofCourt witnesses not shown to be partisan.CW 1, Prem NarainMathur is the practising advocate and was appointed as aCommissioner.He was accompanied by Mahesh Chandra, Vakil,CW 3, advocate appearing on behalf of the plaintiffs(accused Ram Karan) in the suit in which Commission wasissued and Shri Jafar Imam, CW 2, learned advocate appearingfor the defendants in the same suit.C.W. 1 and C.W. 3 wereat the house of accused 1 Ram Karan.C.W. 1 says thatseveral persons assembled at that time at the house of RamKaran.He is a bit vague but he says that at that time aftertea was served and he was about to leave that place he saw aperson lying on the pavement of the road.This injuredperson was lying in front of the house of accused 1 RamKaran.This statement has not been questioned in cross-examination nor adversely commented upon.It gives a clue tothe genesis of the occurrence.After measurements were takenas directed by the Court, C.W. 1 and C.W. 3 came to thehouse of accused 1 Ram Karan.Some persons collected there.According to C.W. 1 injured persons were seen lying in frontof the house of accused 1 and that was none else than thedeceased.If amongst those who collected at the house werethe two deceased and P.W. 11 Dinesh Chandra, another injuredwitness on the side of the prosecution, it is crystal clearthat the prosecution witnesses and the two deceased PrakashChandra and Umesh Chandra had come to the house of accused 1Ram Karan.How, if one of them was armed with a knife, theymust have come with a view to either picking up quarrel orto guard themselves.On the side of the prosecution Prakash Chandraand Umesh Chandra received fatal injuries and Dinesh Chandrawas also injured.However, on the side of the accusedChhotelal, son of accused 1 Ram Karan, suffered six injuriesone of which proved fatal and he died.Accused Ram Karanhimself was also injured.Both the parties were completely exasperated with thelitigation.Therefore, both sides were in anexasperated mood.Suddenly at the spur of the moment thereensued a quarrel.Prakash Chandra and Umesh Chandra on theside of the prosecution died and Chhotelal on the side ofthe accused died and each of them met a homicidal death.PrakashChandra and his two sons and others came to the house ofaccused 1 to protest for the work of the Commissioner.Dinesh Chandra amongst them was armed with a knife.May be,he may be usually carrying the same for his safety.Theincident occurred in front of the house of accused 1 upon asudden quarrel by this confrontation with eyebrows havingbeen raised because of a persistent litigation, theoccurrence took place.Taking an overall view of the situation, we find noevidence of any intention to kill the two deceased on thepart of the accused because the occurrence itself had takenplace suddenly when, to begin with, the entire episodestarted for the particular purpose of partitioning the landby the Commissioners who had visited the village.In thesecircumstances we are satisfied that Exception 4 of s. 300,I.P.C. is attracted and the offence of murder would bereduced to culpable homicide in respect of accused SunilKumar and Ved Prakash and, therefore, they would be guiltyof committing400an offence under s. 304(1)/34 I.P.C. and they should beconvicted accordingly.To this extent, therefore, we areunable to agree with Brother Varadarajan, J. that theconviction of the appellants Sunil Kumar and Ved Prakashunder s. 302 read with s. 34 of the I.P.C. should beconfirmed.We, therefore, allow this appeal to the extent that theconviction of Sunil Kumar and Ved Prakash are altered fromone under s. 302 read with s. 34 of the I.P.C. to that unders.304(1)/34 I.P.C. and they are sentenced to rigorousimprisonment for seven years.Conviction and sentences unders.307/34, I.P.C. are maintained and sentences awarded havealready been directed to run concurrently.We allow theappeal of Ram Karan as indicated by Brother Varadarajan, J.VARADARAJAN, J. This Criminal Appeal by special leaveis directed against the judgment of a Division Bench of theAllahabad High Court in Criminal Appeal No. 1144 of 1971,whereby the learned Judges, while acquitting two appellantsAnil Kumar and Satish Kumar of the charges, altered theconviction of Ram Karan, Sunil Kumar and Ved Prakash,appellants in this Criminal Appeal, under s. 302 and 307,both read with s. 149 I.P.C., into one under ss. 302 and 307both read with s. 34 I.P.C. and confirmed the sentences ofimprisonment for life for each of the two counts of murderof Prakash Chandra and Umesh Chandra and rigorousimprisonment for four years for attempt to murder DineshChandra (P.W. 11) to run concurrently and set aside theconviction of the appellant Ram Karan under s. 147 and theother two appellants under s. 148 I.P.C.The first appellant Ram Karan is the father of otherappellants Sunil Kumar and Ved Prakash and also of AnilKumar and Satish Kumar, who have been acquitted by the HighCourt as well as of deceased Chhotey Lal.P.W. 2 found one puncturedwound and four incised wounds on Chhotey Lal and threeincised wounds on Ram Karan.The injuries on both of themwere fresh and those on Ram Karan were simple while injuryNo. 1 on Chhotey Lal, namely, a punctured wound which waslung-deep and anterior to the left nipple, was grievous andthe rest were simple.The injuries on both could, in theopinion of P.W. 2, have been caused by knife.P.W. 2 issuedthe wound certificates Ex. Ka.Dr. Zuber conducted autopsy on the bodies of PrakashChandra and Umesh Chandra on 7.9.1970 and found nineantemortem, injuries, of which six were incised wounds, onthe body of Prakash Chandra and six antemortem incisedwounds on the body403of Umesh Chandra and he opined that the death of both ofthem was due to shock and haemorrhage resulting from theincised injuries.Ex. Ka. 1 and Ka. 2 are the postmortemcertificates relating to Prakash Chandra and Umesh Chandraissued by Dr. Zuber who was examined as P.W. 1 in theCommitting Magistrate's Court (Ex. Ka. 37).Dr. Dua (C.W. 4)conducted autopsy on the body of Chhotey Lal on 11.9.1970and found an abrasion and five incised wounds which weresufficient in the ordinary course of nature to cause death.The prosecution's case rests mainly on the evidence ofGyan Chand (P.W. 1), Abdul Wahid (P.W. 10) and DineshChandra (P.W. 11).As stated earlier P.Ws 1 and 11 are thesons of deceased Prakash Chandra and brothers of the otherdeceased Umesh Chandra.P.W. 11 had received injuries duringthe occurrence and P.W. 1 is the witness who had lodged theFirst Information Report (Ex. K. 3) in the Seohara PoliceStation at the earliest opportunity at 1.30 p.m. soon afterthe occurrence which had taken place at about 1.00 p.m.These three witnesses were put forward as eyewitnesses andthey have deposed in support of the case of the prosecution.The accused put forward their version of the case.According to the accused, after the Commissioner (C.W. 1)finished his work and went to the house of the appellant RamKaran, Prakash Chandra and his sons Umesh Chandra and DineshChandra (P.W. 11) came to the baithak of Ram Karan andattacked Ram Karan and deceased Chhotey Lal with knives andthereupon they grappled with those three persons and wrestedthe knives from them and attacked them in self-defence.Theaccused examined D.W. 1 on their behalf.The evidence of C.W. 1 is that after he completedtaking measurements he went along with Ram Karan's counselMr.Mahesh Chandra (C.W. 3) to the baithak of Ram Karan'shouse, that both of them came out of the house 8 or 10minutes later, that when he advanced from the door of thebaithak he saw a person lying injured on the pavement of theroad and another injured person standing there, that a thirdperson came and struck the injured person who was standing,and that he and C.W. 3 left the place thereafter.C.W. 3 has addedthat soon after he went and sat in the baithak of RamKaran's house, Zafar Hussain (C.W. 2) came and saidsomething to C.W. 1 from beyond the door of the baithak.Theevidence of Zafar Hussain (C.W. 2) is that aftermeasurements had been taken C. Ws. 1 and 3 went to thebaithak of Ram Karan's house while he sat in the verandah ofthe old haveli of Prakash Chandra, that he and PrakashChandra's son, who is now no more, thereafter went near theCommissioner (C.W 1) and he told C.W. 1 that he may hearwhat Prakash Chandra wanted to say, that after saying so hegot back for meeting another person while Prakash Chandraand his son remained there, that after reaching the verandahof Prakash Chandra he went away with Mehboob Ali who waswaiting for him to Mehboob Ali's house and that no quarreltook place when he was present there though when he wasreturning to the verandah of Prakash Chandra's house heheard some hot words being exchanged near the baithak of RamKaran's house.The learned Sessions Judge has observed in his judgmentthat the evidence of C.Ws. 1 to 3 is contradictory,unnatural and not truthful.He found that P.W. 1's report(Ka. 3) was lodged in the Police Station at 1.30 p.m. soonafter the occurrence had taken place at about 1.00 p.m. andthat there has been no attempt at concoction in this case.He rejected the contention that Abdul Wahid, (P.W. 10) hadany reason to depose falsely against the appellant VedPrakash and found his evidence to be reliable.He observedthat though Prakash Chandra had been working as an Engineerin a sugar mill at Seohara and P.W. 10 was employed in theengineering department, P.W. 10 was actually working underone Bachcha Lal and is an independent witness.P.W. 1 hasstated in his evidence that Prakash Chandra, Umesh Chandraand Ram Karan did not have any weapon at the time of theoccurrence.The evidence of the injured witness P.W. 11 isthat when he returned home from Moradabad at about 12.30p.m.on the day of occurrence405he saw his father Prakash Chandra and brother Umesh Chandralying in a pool of blood and that on seeing him Ram Karanshouted that he also should be killed and caught hold of himby his waist and that he was attacked with knives by theaccused persons including Ram Karan and he wielded in self-defence the knife which he had purchased on that day for hiswork.The learned Sessions Judge accepted the evidence ofP.Ws.1, 10 and 11 and commented upon Ram Karan and ChhoteyLal going to the hospital at Bijnor without arranging for areport being given at the Police Station at Seohara in timeand held that the accused were the aggressors and thatDinesh Chandra (P.W. 11) caused injuries to Ram Karan andthe deceased Chhotey Lal in the exercise of the right ofprivate defence.Accordingly he found the accused guilty andconvicted them and sentenced them as mentioned above.The High Court also rejected the defence theory thatChhotey Lal was attacked by three persons armed with knife,chura and khukhri having regard to the fact that he had onlyone lung deep punctured wound and the other four wounds wereonly skin deep and of very minor dimensions.The learned Judges of the High Court found that thename of Anil Kumar is not mentioned in the First InformationReport (Ex. Ka. 3) but instead the name of one Virendra ismentioned and that it appears from the evidence of P.W. 1that Virendra is the name of Prakash Chandra's brother.Theyfound that in the statement of P.W. 11 recorded as dyingdeclaration, Sushil Kumar is mentioned instead of SatishKumar.In these circumstances the learned Judges found thatthere is reasonable doubt regarding the participation of theaccused Anil Kumar and Satish Kumar and they gave thebenefit of that doubt to those two appellants before themand acquitted them.In other respects, the learned Judgesaccepted the evidence of P.Ws. 1, 10 and 11 regarding theoccurrence and rejected the defence version and held theappellants guilty under s. 302 read with s. 34 in respect ofthe murder of Prakash Chandra and Umesh Chandra and under s.307 read with s. 34 in respect of Dinesh Chandra, (P.W. 11)and convicted them accordingly and sentenced them to undergoimprisonment for life under s. 302 read with s. 34 I.P.C.and rigorous imprisonment for four years under s. 307 readwith s. 34 I.P.C.We perused the records and the judgments of the learnedSessions Judge and of the learned Judges of the High Courtand heard the arguments of Mr. R.L. Kohli, Senior Advocatewho appeared for the appellants and of Mr. D.P. Uniyal,Senior Advocate who appeared for the respondent-State ofU.P. We were taken through the evidence of P.Ws. 1, 10 andThe learned Sessions Judge has observed in his judgmentthat the evidence of the three lawyers C.Ws. 1 to 3 iscontradictory, unnatural and not truthful and that if theyhad given honest evidence it would have been easier for thecourt to conclude which side was the aggressor.Thisobservation of the learned Sessions Judge appears to be toosweeping and not correct at least with reference to C.W. 2who has professed ignorance about the actual occurrence inthe case and has stated that he left after asking C.W. 1from outside the baithak of Ram Karan's house to hear whatPrakash Chandra who had gone with him and his deceased sonwanted to tell him because another person Mehboob Ali withwhom he later went to his house was waiting for him in theverandah of Prakash Chandra's house.P.W. 1 has stated that when exchangeof hot words started the Commissioner and Vakils of theparties moved from there to the road and that just when RamKaran's Vakil had gone a short distance from Ram Karan'shouse, Ram Karan and others stated that "they have got ourthousands of rupees spent over litigation.We have becometired of getting commissions issued.Kill them today so thatthe trouble may be ended for ever.At that time all the fivesons of Ram Karan, Chhotey Lal, Ved Prakash, Satish Kumar,Sunil Kumar and Anil Kumar were present, and when Ram Karansaid so all five sons whipped out knives and startedassulting.....".Even P.W.10 has stated in his evidence that "when he reached neardharmshala at about 12.45 p.m. he heard the shouts of RamKaran from his house situate at a distance of 30 paces, thatwhen he reached the end of the road he was in a position tosee the house of Ram Karan, that on hearing the shouts heproceeded towards the place from where they came and stoodnear407the wall and found three Vakils present and also PrakashChandra and Umesh Chandra, that as soon as he reached theplace, the Vakils left the place, that Ram Karan then statedthat he got the Commissioner appointed 5 or 6 times andspent several thousands of rupees and he should be killedand that when Ram Karan said so his sons Chhotey Lal and VedPrakash began to attack Prakash Chandra with knives, thatSunil Kumar and Ram Karan's other sons began to assaultUmesh Chandra with knives, that during the marpit PrakashChandra and Umesh Chandra fell down after receivinginjuries, that thereafter Dinesh Chandra, son of PrakashChandra came from the eastern direction, and on seeing himRam Karan shouted that he should also be done to death, andhe caught hold of Dinesh Chandra by his waist, and that allthe four boys and deceased Chhotey Lal began to assaultDinesh Chandra with knives, and Dinesh Chandra wielded hisknife in self-defence and caused injuries to Ram Karan andChhotey Lal and thereafter fell down and becameunconscious....".This portion of the evidence of P.W. 10also shows that C.Ws. 1 to 3 left the place soon afterexchange of hot words began between the two sides.Therefore, I am of the opinion that there is no reason toreject the evidence of C.W. 2 that no quarrel took placewhen he was present near about the scene of occurrence.Thiscriticism of the learned counsel for the appellants appearsto be well-founded, for I find that a suggestion has beenmade to P.W. 10 in cross-examination and he has admittedthat there is also408another person named Wahid son of Abdul Rehman in hismohalla and that that person was an accused in a riotingcase.And in the cross-examination of P.W. 1 it has beenclearly suggested that he was not present at the spot andthat he prepared the report Ex. Ka. 3 afterwards with someconsultation.P.W. 1 has no doubt denied that suggestion andstated that he was present at the spot and that he himselfwrote the report Ex. Ka.3 before he came out of the houseby opening the door.The learned Judges have stated in theirjudgment that after Ram Karan stated that he has spentthousands of rupees on commissions and every time the reportof the Commissioner was set aside on the objection ofPrakash Chandra and he instigated his sons to kill PrakashChandra and Umesh Chandra, all the five sons of Ram Karanstarted giving knife blows to Prakash Chandra and UmeshChandra and both of them fell down.This portion of thejudgment of the learned Judges is to the effect that all thefive sons of Ram Karan including the deceased Chhotey Lalattacked the deceased Prakash Chandra and Umesh Chandrawhereas it is the case of the prosecution as brought out inthe evidence of P.W. 1 that after Ram Karan instigated hissons to open the attack only Chhotey Lal and Ved Prakashattacked Prakash Chandra with knives and only Sunil Kumar.Anil Kumar and Satish Kumar attacked Umesh Chandra withknives.

Cited provisions: Section 34 in The Indian Penal Code; Section 302 in The Indian Penal Code; Section 307 in The Indian Penal Code; Section 304 in The Indian Penal Code; Section 300 in The Indian Penal Code; Section 148 in The Indian Penal Code; Section 147 in The Indian Penal Code; Section 149 in The Indian Penal Code