IMPORTANT POINT
If the view taken by the courts below is a possible view, it cannot be interfered.

ARIJIT PASAYAT, J.

( 1 ) STATE of Haryana is in appeal against the judgment of a Division Bench of the Punjab and Haryana High Court upholding the judgment of acquittal passed by learned additional and Sessions Judge, Kurukshetra.

( 2 ) THE respondents, three in number, were charged for 'commission of offences punishable under Sections 302 and 323 read with Section 34 of the Indian penal Code, 1860 (in short 'ipc' ).

( 3 ) THE factual position as projected by the prosecution is as follows: 3. 1. On 9. 2. 1993 at about 8. 00 A. M. ,dev singh was heading from the house to his fields carrying a Sutli and Sua for the purpose of stitching the bags in which potatoes were to be packed and he had hardly covered a distance of 4/5 yards when he found accused balkar Singh, Chuhar Singh, Surinder Singh, sher Singh (hereinafter referred to as 'deceased') and injured Shamsher Singh standing near the tubewell of Chuhar Singh, where a drain existed and some water had stagnated by the road side, because the height of the drain was more than the height of the road and some water had tricked inside the house of Harbans Singh. Sher Singh and shamsher Singh requested Balkar Singh and chuhar Singh to deepen the drain so that water would not flow into their houses, to which Balkar Singh and Chuhar Singh did not agree and asked them to do themselves and thereafter the accused left the place. Deceased Sher Singh and Shamsher Singh started deepening the drain with the help of a kassi. After about one minute accused baikar Singh carrying a Gandasi and the remaining two Chuhar Singh and Surender singh armed with lathis came there. Balkar singh gave a gandasi blow to Sher Singh, which hit his left temple. Chuhar Singh gave a lathi blow which hit the left side of the temple and Surender Singh gave a blow on the head of Sher Singh, who fell down and Shamsher singh ran towards his house. Thereafter there was free exchange of danda blows from both sides. Shamsher Singh was injured by all the three accused, who received injuries on both shoulders, loft side of the chest and head. The occurrence was witnessed by him and prem Singh, who was standing at a distance of 5/7 paces. Thereafter the accused left with their respective weapons and the injured Sher singh and Shamsher Singh were removed in a tractor-trolley and got admitted in Civil hospital, Ladwa. The police came there and recorded statement, Exhibit PD/2 which was thumb-marked by him in token of its correctness.

( 4 ) INJURED Sher Singh and Shamsher Singh were got medico-legally examined. Sher singh, who had been referred to P. G. I. Chandigarh, succumbed to the injuries on 13. 2. 1993, where upon Faqir Chand ASI (PW-12) conducted inquest proceedings exhibit PJ/3 and autopsy was conducted by dr. B. Suri (PW-14 ). From the accused side all the three suffered injuries and were medico-legally examined by PW-2 Dr. P. R. Pruthi, Medical Officer, CHC, Ladwa.

( 5 ) AFTER investigation, accused were challaned for the offence and a charge under Section 302 and 323 read with Section 34 of the indian Penal Code was framed against the accused to which they pleaded not guilty and claimed trial.

( 6 ) IN order to substantiate the accusations, prosecution examined 14 witnesses. The accused persons, to support their plea of innocence, examined the Draftsman DW1. The trial court found that the evidence is not sufficient to establish the guilt of the accused person and accordingly directed acquittal. The same was questioned in appeal before the High Court. The stand of the State before the High Court was that the injury was caused to Sher Singh and Shamsher Singh. Sher singh had died and Shamsher Singh was an injured eye-witness who appeared as PW10. PW9 was eye-witness who was present at the spot where the incident took place. It was stated that the accused persons also had sustained injuries and had taken similar plea in their defence. The accused persons placed reliance on the evidence of Dev Singh. In his statement made