The prosecution's evidence, if clear, cogent, and creditworthy, could stand even in the absence of an explanation for the accused's injuries. The court also clarified the applicability of Exception 4 to Section 300 of the Indian Penal Code and the requirement of shared common intention under Section 34.

Judgment

PAITANAIK, J.- The two appellants, Rajender Singh and Triloki Singh have assailed their conviction and sentence passed by the First Additional Sessions Judge, Saran in Sessions Trial No. 189 of 1981, which has been upheld in appeal by the High Court of Patna in Criminal Appeal No. 146 of 1985. Before the learned trial Judge, in all there were nine accused persons but six of them were acquitted and only two appellants along with one Prabhunath Singh were convicted but the said Prabhunath died during the pendency of appeal in the High Court, and as such, there are two appellants in this Court. The prosecution case in a nutshell is that on 4-7-1977 an incident occurred in Village Jaidpur Tola Pilui in the district of Saran and one Kameshwar Singh was murdered. Satyanarain, PW 8 gave the first information report at 6.00 p.m. at Sadar Hospital, Chapra where he was lying injured, alleging therein that at 11.45 a.m. while the informant was getting his field ploughed by a tractor which he had hired from PW 5 these

appellants and others came and asked the informant party not to plough the field but when the informant protested he was abused and then Accused 1 assaulted him by means of a bhala on his abdomen whereas Accused 2 assaulted him on his chest. Deceased Kameshwar who was the nephew of the informant was assaulted by Accused 1 in his abdomen and thereafter all the accused persons assaulted him. The prosecution also further alleged that the brother of the informant Banwari Singh had also been assaulted by Accused 7, 1 and 2 and the acquitted persons assaulted him by means of a lathi. It is also the further case of the prosecution that PW 7 who is the nephew of the informant had also been assaulted. On the basis of the aforesaid first information report Sub-Inspector of Police, PW 9 registered a case and started investigation. The investigating officer went to the village and held the inquest over the dead body at 9.45 p.m. and prepared an inquest report, Exhibit 7. The dead body was sent for autopsy which was conducted by the doctor, PW 3. The said doctor had also examined the injuries on the person of the informant on the requisition of the investigating officer. Finally charge-sheet was submitted as against accused persons, as already stated, against Rajender Singh, Prabhunath Singh and Triloki under Section 302 for the murder of Kameshwar and against all the nine accused persons including the six acquitted under Sections 302/149 for being members of an unlawful assembly in prosecution of a common object of which assembly Rajender and others assaulted the deceased and then murdered him. Rajender Singh and Prabhunath Singh were further charged under Section 307 and there were charges under Sections 148 and 147 and also under Sections 324 and 323 of the Indian Penal Code. From the evidence of the doctor, PW 3 who conducted the post-mortem on the dead body of Kameshwar it is crystal clear that the death was homicidal and the said conclusion of the learned Sessions Judge has been affirmed by Jhe High Court in appeal and has not been assailed before us. To bring home the charges against the accused persons the prosecution relied upon four eyewitnesses, namely, PWs 2; 4, 7 and 8. The defence also examined the Magistrate as DW 1 who is alleged to have recorded the statement of informant PW 8 at the hospital on the date of the occurrence while he was lying in an injured condition. The said statement has been marked as "Exhibit B". From the cross-examination of the prosecution a witnesses, the defence case appears to be that the occurrence in fact took place on Plot No. 4514 belonging to the accused lying contiguous south of Plot No. 4513 while the accused persons were on their field and, therefore, it is the prosecution party who are the aggressors and the accused persons are entitled to the right of private defence of property as well as person. On a thorough analysis of the entire evidence on record the learned Sessions Jud