IMPORTANT POINT
When the prosecution witnesses say that appellant is responsible for the killing of the deceased and the deceased in his dying declaration states similarly, that only establishes that unless the plea of self-defence of person and property set up by the appellant gets proved on the test of probabilities, the prosecution case shall stand proved provided it stands on its own.

Headnote:(i) Criminal Procedure Code, 1973-Section 379-Indian Penal Code, 1860-Sections 307/34 and 302/34-Prosecution of five accused for offences under-Acquittal- Appeal-Acquittal of three accused maintained-Two appellants convicted for charges of murder and attempt to murder-Appeal against conviction - Boundary dispute - Account of first occurrence has not been placed by prosecution before Court in a true manner-Evidence of PWs being unacceptable and untrustworthy on charge of murderous assault-Appellants too deserve acquittal for offence u/s. 307/34-Appellant R would be entitled to acquittal u/s. 302/34 since he too had not done any overt act.
       Held : Such evidence therefore does not inspire confidence to accept the veracity of the first occurrence and to maintain conviction on such accusation against Ram Sharan, on the unreliable word of Chakodi, PW 5, Sumitra Nandan Garg, PW 6, Indrawati, PW 3 and Jagdamba Bai, PW 4. Their evidence being unacceptable and untrustworthy on the charge of murderous assault on Chakodi, would entitle Ram Sharan appellant acquittal for offence under Section 307/34 IPC and sequally would Harish Kumar appellant too deserve acquittal for offence under Section 307/34 IPC. On recording such verdict of acquittal of both the appellants for offence under Section 307/34 IPC, Ram Sharan appellant, also would be entitled to acquittal under Section 302/34 IPC on account of the murder of Virendra Kumar for the same reasoning as has been adopted by the High Court to maintain the acquittal of the other three accused, since he too had not done any overt act towards committing the murder of Virendra Kumar. We therefore order acquittal of Ram Sharan of all the charges. (Para 17)
       (ii) Indian Penal Code, 1860-Section 302/34-Conviction under-Appeal-Sole accused who caused sole injury to deceased was appellant H-Plea of self defence-Dying declaration by itself is not a corroborative factor to establish murder charge -Motive-Appellant fired but only once-Firing not repeated-No indiscriminate firing-His act would be termed as one in exercise of right of private defence of person-Acquittal.
       Held : When the prosecution witnesses say that Harish Kumar, appellant, is responsible for the killing of the deceased and the deceased in his dying declaration states similarly, that only establishes that unless the plea of self-defence of person and property set up by the appellant gets proved on the test of probabilities, the prosecution case shall stand proved provided it stands on its own. So the dying declaration is not the tilting factor as viewed by the High Court because the same does not by itself walk over the plea of self-defence set up by the appellant, Harish Kumar. (Para 18)
       Further held : It is contended that the pellet injuries received by the appellant as well as by Ram Sharan, co-accused, were the result of the assault mounted on them because many members of the complainant party had carried and used kattas. Our view with regard to these two suggestions on careful consideration is that the injuries on the father are superficial in nature and could not have been the result of a deliberate attack on him. The situs of a particular injury is not the sole basis to see whether a friendly hand could have caused it or not. The nature of injury too can speak prominently. If the father had received injuries at that juncture when the two appellants had also received pellet injuries, then we would have expected had the appellants too to have surrendered themselves along with their father. Their pellet wounds at that time would have been fresh, and the totality of circumstances could perhaps have given a probable picture in their favour. Here, apparently, the injuries of the father were flung as a defence suggestion on the next day of the occurrence but when that did not ignite the imagination of the investigation, then the arrest of the appellants and their treatment was designedly delayed by viewing something else. Thus, on account of the presence of injuries alone on Narayan Prasad, Harish Kumar and Ram Sharan, accused, we are not prepared to probabilise their defence in these peculiar facts and circumstances. (Para 19)
       Consequently held that some incident between the parties definitely happened but we stand deprived of a truthful account of the same. So figuratively there was a first occurrence which led to the second one. Some unpleasantness had occurred earlier wherefor some of the members of the complainant party had kept being there and others had started assembling in the lane in which the house of the appellants lay. As members of a faction, it is difficult to believe that they would have come there un-armed and less in numbers and be there for no cause, all the more knowing fully well that amongst the appellants were 2 licensed weapon holders. It is alleged by the prosecution that it was Harish Kumar, accompanied by his companions, who first stepped forward towards the complainant party, present near the stone gate. Here then was direct confrontation. In the circumstances therefore, the possibility cannot be ruled out that Harish Kumar, becoming apprehensive of danger to himself and his family members chose to be defensive in becoming offensive, because of the first incident; without having the requisite intention to cause the murder of any particular person. He therefore fired but only once and the fire was not repeated. There was no indiscriminate firing. His act would therefore, be termed as one in exercise of the right of private defence of person entitling him to acquittal. (Para 20)

JUDGMENT

Punchhi, J.-This appeal under Section 329 of the Code of Criminal Procedure has been preferred by Harish Kumar, Advocate and his brother, Ram Sharan, as of right, as they stand convicted for charges of murder and attempt to murder by the High Court of Madhya Pradesh vide order dated 25.8.1986, setting aside the orders of the Court of Session, whereunder the aforesaid two appellants and three others were acquitted of all the charges. Now the acquittal of those three others stands maintained whereas the two appellants have been convicted and sentenced as under :

(i) Harish Kumar under Section 302 IPC and Ram Sharan under Section 302/34 IPC for the murder of Virendra Kumar. Both sentence to life imprisonment.

(ii) Both convicted under Section 307/34 IPC for individually attempting to commit murder of Chakodi, PW 5 and sentenced to five years Rigorous Imprisonment.

2. Both sentence to run concurrently.

3. The parties involved are residents of village Madhogarh in the State of Madhya Pradesh. Both the courts below have found that parties have formed factions, one represented by the complainant s side and the other by the accused. It is the case of the prosecution that at a site some distance from the village, the appellant, Harish Kumar, in partnership with one Ram Gulam had taken a contract for transportation of sand and bajri. In the vicinity thereof were agricultural lands of Jagdish Prasad, PW 7. It is alleged that on the morning of 10.1.1982 when Jagdish Prasad, PW 7 went to his fields, he found that a road had been made by cutting the boundary line of his field for using it as a passage for trucks. Incidentally, Ram Gulam and Harish Kumar were also there. Jagdish Prasad, PW 7 protested to them for the trespass on his land. At that time, both Harish Kumar and Ram Gulam threatened PW 7 that if he ever tried to obstruct their trucks from passing on that road, he would be shot dead. It is alleged that the matter was reported at the police station.

4. It transpires that the Patwari, on orders from higher officers, made demarcation of the site on 17.1.1982. It emerged that the site where the road was made was owned by one Remsewak, a nephew of Ram Gulam and the Jagdish Prasad s objection to the user of the road was without any basis.

5. In village Madhogarh, there is a busy lane/road running from north to south, touching perpendicularly the highway between the towns of Satna and Rewa. Shortly before reaching the T-junction, there stands erected a stone gate from where a lane bifurcates at a tanget, touching also the same highway. The appellants and their co-accused, who constitute a family by themselves, have their residential house in that lane, just about in the middle between the stone gate towards south and the crossing towards the north.

6. The prosecution case is that at about 4.30 p.m. on 17.1.1982, Chakodi, PW 5 of the rival faction, was passing in that lane. All the five accused were there. The father of the appellants, Narayan Prasad, acquitted co-accused, caught hold of the hands of Chakodi, PW 5, and told him that he was indulging in gundagardi (hooliganism) and that he would be set right by them. Harish Kumar, appellant, was then said to be present and armed with a rifle, and Ram Sharan, appellant too, with a .12 bore gun. Others were empty handed. On being exhorted by Narayan Prasad to kill Chokodi, PW 5, Harish Kumar fired his rifle at him even when Narayan Prasad was holding the hands of Chakodi. Neither of the two was hurt by the fire as both had sat down instinctively. Freeing his hands from the hands of Narayan Prasad, Chokodi started running away in the lane towards the north, when Ram Sharan fired at him from his .12 bore gun. This time also the fire missed. It is alleged that some pellets of the second fire however hit Manju Soni, Surender Kumar, Indra, PW 3 and Jagdamba Bai, PW 4 (the former two were not examined at the trial). This is stated by the prosecution to be the fi

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