KHACHER MAL Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Agarwal, J. Four appellants, Khacher Mal, Kedari, Narottam and Chandrapal were convicted under Sections 302/34 and 323/34, I. P. C. and were sentenced to imprisonment for life under the first count and one year's R. I. under the second count repetitively. This appeal arises from the order dated 15-10-1982 passed in S. T. No. 149 of 1982 by the learned IInd Additional Sessions Judge, Aligarh.

(2.) BRIEF history of the case is that on 14-10-1981 at about 7. 30 in the morning Kedari was cutting divider (Mend) and throwing its mud into the field of the informant. When the informant asked him to desist from doing so Kedari launched an oral abrasive assault on him. Appellant Khacher Mal reached the spot with his licensed gun, his sons Narottam and Chandrapal were armed with lathis. In the meantime Sher Singh, Lal Kaur, his daughter Saroj and village men Chiddu Singh, Jaipal Singh, Harish Chandra, Sahab Singh and Chandrapal Singh also came to the spot. They pleaded with the appellants not to do any injustice to the informant. On this Kedari and Khacher Mal asked Narottam by giving his licensed gun to him to kill them and he will get him acquitted by selling 4-6 bighas of his land. Exhorted by his father Narottam discharged 5-6 fires on them. The shots so fired struck Chiddu Singh, Jaipal Singh, Harish Chandra, sister Smt. Lal Kaur and Kumari Saroj. When he was trying to reload the gun Sher Singh son of informant and Smt. Kamlesh his daughter-in-law snatched his gun. While they were trying to snatch the gun Sher Singh and Smt. Kamlesh were struck lathi blows by Chandrapal Singh. A written report prepared by the informant was taken to the police-station. A case was registered at 9. 10 a. m. on its basis under Sections 304/34/114 I. P. C. The injured persons Chiddu Singh, Jaipal Singh, Harish Chandra, Smt. Lal Kaur and Saroj were sent to the hospital for their medical examination. Saroj was further refered to the District Hospital where she ultimately breathed her last. Investigation was taken up in this case by Sub-Inspector V. S. Yadav P. W. 7. He on reaching the spot had examined the witnesses, prepared the site-plan and recovered blood stained and simple earth. All these formalities were completed admittedly by him within two hours. Thereafter he had gone to visit the injured at the hospital. After conclusion of the investigation charge-sheet under Section 302/34 I. P. C. was submitted against the appellants. 3. The appellants were tried, convicted and sentenced as abovesaid by the trial Court. The appellants pleaded not guilty to the charges levelled against them. Appellant Khacher Mal has come up with his own version. According to him Hoti Lal informant, Sher Singh, Shibbu Singh, Smt. Lal Kaur, Jaipal, Saroj, Reoti, Smt. Kamlesh, Kishan Lal and Nauratan came to the field of his brother Kedari. They called Kedari to themselves and told him that they had planted potato and he should not plough the potato crop. Kedari told them that he would plough his field upto the demarcation. Hoti Lal told him that if he will further plough they will beat him. Khacher Mal in the meantime stopped ploughing the field and reached rear them. By this time prosecution side started beating his brother Kedari. This appellant was still a little distance away. Hoti Lal exhorted his companions to assault Khacher Mal also though he had not reached there till then. Sher Singh ran with spade towards him, which he plied on him. He has warded that off. When he tried to turn back then Hoti Lal struck a lathi blow on his shoulder. He picked up his gun which was lying in his field. Several accused ran towards him. He fired a single shot from his gun. As soon as the fire was made some of the accused ran away. He and his brother after picking up the bullocks and plough came back to their house. Later on he went to the police station alongwith Ram Swaroop and Kedari on cycle with his gun. Cartridge belt full of live cartridge was handed over to him through Ram Swaroop out side police station who came back to his house. He asked the Iinvestigating Officer to register his First Information Report about the incident but the Investigating Officer demanded Rs. 4,000/- as illegal gratification. Since he could not pay that amount the police did not take down his report. The gun, spent cartridge and licence of the gun were taken from him by the police. Both of them were lodged in the lock-up. Kedari has also supported the aforesaid defence. Appellant Chandrapal had denied his presence in the occurrence. Narottam appellant has not set up any defence except that he has been involved on account of village party bandi and enmity. 4. The prosecution in support of its case has examined Hoti Lal P. W. 1 and Harish Chandra P. W. 2 as eye- witnesses of the incident. Hoti Lal is also informant of the incident. He has not sustained a single scratch on his person in which 4-7 persons at his side have sustained fire-arm as well as blunt weapon injury. Formal witness Sher Bahadur Singh P. W. 3, Sub-Inspector, was posted at Police-station Rakabganj. He has prepared the inquest memo Ext. Ka-3 and handed over the dead-body for post-mortem examination to Constable Surendra Singh and Anup Singh. Dr. V. K. Maheshwari P. W. 4 had conducted the medical examination of Smt. Lal Kaur, Harish Chandra, Kumari Saroj, Jaipal Singh, Chiddu Singh, Smt. Kamlesh and Tej Singh on 14-10-1981. According to him their injuries are possible at 7. 30 a. m. He has further stated that injuries of Harish Chandra, Kumari Saroj, Jaipal Singh, Chiddu Singh were possible from a single fire-arm. Injuries of Tej Singh and Smt. Kamlesh could be caused by lathi. He further stated that recovery of pellet from the injury of Smt. Lal Kaur renders it possible that the injury is caused by a fire- arm. Their injury reports are Ext. Ka-5 to 9 (both inclusive ). He reported that the injury of Smt. Lal Kaur was caused by hard blunt weapon. He did not find any blackening and tattooing in the injury. He did not find any hair burnt, or charred. In the process of the examination he did not feel presence of any pellet. But according to him the person who brought Smt. Lal Kaur told him that she had sustained fire-arm injury. Therefore, he examined her injuries very closely to find out whether it was fire-arm injury or blunt object injury. Absence of blackening and tattooing confirmed that injury was sustained from a blunt weapon. He had further stated that after his examination one or two pellets could be inserted into her injuries. Injury No. 3 of Jaipal Singh was caused by more than four feet but he could not make any definite statement regarding the distance. P. W. 5 is Constable Surendra Singh. He has escorted the dead body of Smt. Lal Kaur to the mortuary on 15-10-1981. P. W. 6 Dr. V. R. Saikwal had conducted the post- mortem examination on the person of the deceased Smt. Lal Kaur. He had noticed that membrances of brain and the brain were heavily lacerated. According to him cause of death was as a result of the injuries sustained by her. Injuries were sufficient in the ordinary course of nature to cause her death. He claimed that he recovered two pellets from her brain cavity, which he had noted in the post-mortem examination report. He had admitted that this injury could be caused by forceful entry of the pellets because bones of the head were fractured. But he was not able to give precise distance from which shot was fired. But he was sure that it must have been fired from a distance of over four feet. P. W. 7 is V. S. Yadav. He has investigated the case and after completing all formalities submitted charge-sheet against the accused persons. 5. The defence has also examined two defence witnesses. D. W. 1 is Dr. M. L. Balecha, who had proved the injury of Kedari and Khacher Mal and D. W. 2 is a neighbour who had supported the defence version as set up by Khacher Mal. 6. Learned Counsel for the appellants has contended that the prosecution has not proved its possession over the property. The probability that the complainant side attempted to gain possession over come portion of the field of Khacher Mal and in that process marpit between the two sides ensured cannot be ruled out easily. The defence version, according to him, has more grains of truth. The defence injuries have not at all been explained by the prosecution. These injuries cannot be termed to be fabricated or self suffered. The prosecution has not come with clean hands. In the last it is urged that even if the prosecution story is accepted then the offence does not travel beyond Section 304 I. P. C. because in that event it shall be a case of exceeding right of self defence and the Court has to disintegrate the chaff from the grain for the purpose, which is most difficult in this case. 7. Before appreciating these arguments we have to examine closely the evidence of two eye-witnesses. We propose to examine the evidence of P. W. 1 Hoti Lal. His evidence in examination-in-chief is not different from his First Information Report. It is an admitted position that the sale-deed of the land purchased by him from Kewal son of Chunni Jadav was not executed till then although he claimed that the entire sale price was paid and possession in lieu thereof was given to him. According to him in the south there are plots of Kedari and Khacher Mal the two appellants. It is also his case that they often used to disturb the partition wall between their fields. Narottam was attributed the role of firing 5-6 rounds upon the prosecution party which resulted into injuries to five persons, namely, deceased Smt. Lal Kaur, Kumari Saroj, Chiddu Singh, Harish Chandra and Jaipal Singh. Chandrapal is said to have caused blunt weapon injuries (lathi) upon Sher Singh and Smt. Kamlesh. In all seven persons were injured by these accused persons. The report of the incident apparently was lodged with extra-ordinary promptness, i. e. , within one and half hour. The distance from the place of the incident and the police station was five kilometers. The informant had gone to the police station on cycle alongwith some other persons. It is admitted to the prosecution side that he had purchased this piece of land for constructing a Nohra. He was suggested that the land purchased by him was sufficient enough for the construction of a room. He had also pleaded ignorance to the suggestions that in the south of plot which he had purchased from Kewal, five bighas land belonging to Kedari lies. He admitted that it was 3-4 bighas meaning thereby that he was not accepting that it was five bighas. He has also denied the offence suggestion that he had demanded from Kedari some land which he declined to sell to him. It is also admitted that Kedari and Khacher Mal are living independently from each other but land has yet not been partitioned between them. He has also pleaded ignorance regarding the existence of any field of Khacher Mal to the south of the field of Kedari. This, in our opinion, was purposely denied by him. There is no doubt with regard to the fact that potato was planted in the plot which he had purchased from Kewal. This is available to us from the nature of the suggestion made to this witness. He has also admitted that any proceeding against Kedari for disturbing the partition (mend) was never initiated by him. He has also denied the defence suggestion that he and his party men assaulted Kedari. He had admitted that Kedari has not assaulted any one of them although he held a spade. He was confronted with the omission about the fact in 161 Cr. P. C. statement to which his reply is that Kedari was holding a spade and he ran away with it. He has admitted that his house is just hundred steps away to the north from his plot. He again said that it is at a distance of 600-700 steps and the village abadi starts at a distance of about one hundred steps from his plot. In the nearest vicinity house of Parsadi, Moti and Rampal are there. He has further stated that one of his house is adjacent to the houses of Parsadi and Hoti. He admitted that when he desisted Kedari from cutting the mend his son Sher Singh, daughter Saroj, Harish Chandra, Sahab Singh, Chandrapal and his wife Smt. Kamlesh came to the spot. He made an evasive reply to the effect whether that these witnesses came from his house or not he cannot say. He has stated that he had seen them coming only. He has further stated that he made no enquiry regarding the place from where they came. He admitted that he had stated to the Investigating Officer that his son Sher Singh, wife Smt. Kamlesh, sister Smt. Lal Kaur and daughter Saroj came there from his house. He has further explained that since the persons present there were saying that they had some from the house therefore he has also told that they have come from the house to the Investigating Officer. According to him those who had reached the spot on hearing the alarm were unarmed. He had seen Khacher Mal at a distance of 15-20 steps. When Khacher Mal asked Narottam to about he was 15-20 steps away from the assailants and Khacher Mal at that time was at the southern mend of his field and the complainant party was a pursued in between that 15-20 steps. They were near Kedari's plot. In the field of Kedari potato and barsin crops were sown. They were standing in the paddy crop. Firing was resorted to from a distance of 15-20 steps. There was no obstruction of any kind in between the assailants and themselves. He had stated that they had not sustained injuries from every fire. He admitted that he was present at the spot still he did not suffer any injury. He had admitted that he had shown the plot to the Investigating Officer from where firing was resorted to at 9. 30 a. m. He had shown the spot from where he picked up the pellets. He did not go to the hospital. He had Gone to the police station after preparing the report. Hari Singh, Raj Kumar and some 10-15 persons accompanied him. He deposited the gun with cartridges and four other spent cartridges at the police station. Cartridge belt was not deposited at the police station. He reached the police station at. 15 a. m. and stayed there for 10-15 minutes only. The Investigating Officer did not record his statement there. He came to the place of the occurrence alongwith the Investigating Officer in his jeep. They had gone to the police station on cycle. He had gone to Malkhan Singh Hospital to see the injured persons. He had not gone to the village dispensary. The Investigating Officer stayed in the village upto 2 or 2. 30 p. m. He had denied that he saw Khacher Mal and Kedari at the police station. He had denied that the injured persons were taken to Malkhan Singh Hospital, Aligarh by him. But this fact is proved from the injury reports wherein his name is shown as the person who brought the injured. All injury reports from prosecution side bear his name except Tej Singh, who is shown to be brought by self. Thus, he is deliberately telling a lie with regard to this fact. Medical examinations were completed in between 9. 45 a. m. to 11. 40 a. m. Thus, his statement that he remained in village since his arrival with Investigating Officer till 2 p. m. to 2. 30 p. m. and has not visited Malkhan Singh Hospital or village is proved a complete falsehood. The defence has given a suggestion that the First Information Report was transcribed after medical examination in consultation with the Investigating Officer at the police station later on during the day. It appears to have some substance. He has also denied defence suggestion that Khacher mal and Kedari deposited their gun at the police station. He had denied any injury on Khacher Mal and Kedari. He has admitted that Chiddu Singh witness belongs to his family. He has further admitted that he is the Pradhan of the village and at the time of the occurrence was holding the post. Harish Chandra, the other eye-witness is a member of gaon Sabha. But denied that he belongs to his party. He admitted that many other persons had reached the place of the occurrence. Jats and Thakurs also reached the spot but could not name any one of them. He had further stated that they had tried to save themselves by hiding. He himself has taken shelter behind the wall. The height of the wall is about 1-1/2 metres. He disclosed this fact to the Investigating Officer but was unable to explain its omission therein. Thus, he has introduced this fact for the first time in order to explain absence of any injury on his person. He has admitted that the Investigating Officer has not taken out any cartridge from the barrel. He has also denied that these cartridges were fired from the gun subsequently and were planted upon these accused. According to him when he reached his plot Kedari was at his field. He admitted that both of them were of the same physique. He did not attempt to snatch the spade from Kedari. 8. Thus, from his statement following facts are clear that he did not suffer any injury. He had admitted that all the shots fired did not hit them. According to him first shot hit his sister and others sustained injuries from subsequent shots. He has denied taking the injured to the hospital which in false. He claimed that he was present from the time of arrival of the Investigating Officer at the place of the occurrence and has gone to the hospital after his departure. But this fact is proved to be a total lie. He was present in the hospital at 9. 45 a. m. when Smt. Lal Kaur was first examined and was there until 11. 40 a. m. when last man brought by him was examined. When we examine closely these facts and circumstances then his case that he lodged the First Information Report at 9. 15 a. m. is proved to be a difficult proposition to accept. The medical report does not show presence of any constable alongwith him. In the circumstances his denial is purposive to save his First Information Report. It proves clearly that the First Information Report is ante-timed. The defence suggestion leads us to the inference that he did have possession over that plot but whether the plot was 20 x 50 sq. yard or 20 x 50 hand or smaller one is not clear from his evidence. Apart from this there is no other evidence on the record to this effect. Kewal has not been produced by him to prove that he had sold 20 x 50 hands of the land to this witness. Kewal has no other land. This Kewal would have been the best witness to prove this fact as well as the area which was allegedly sold out by him. Kahasra entry could have also helped us but even it has not brought on record. 9. His story about snatching of the gun is also not borne out from the evidence on the record clinchingly. It is unbelievable. Where a person has discharged 5-6 rounds from his gun and had caused injuries to 5-7 persons, no one will dare to catch hold of that person. Thus, from his evidence it is clearly established that the prosecution has not come with clean hands and has tried to suppress the true genesis of the incident. By the time this witness had reached Kedari was alone in his field and the house of Kedari and Khacher Mal are just 200 paces from this plot. There was no reason from Khacher Mal and Narottam to take the law into their hands. Admittedly Kedari was in his field. He was not an unsound person to have used abrasive language against the complainant side without any provocation or valid cause. This witness had admitted that the Investigating Officer in the site plan has shown the firing from spot 'f'. This is the place from where spent cartridges were allegedly recovered. These two facts are difficult to reconcile. If firing was made by Narottam from his field it shall be difficult to accept the prosecution version as shown in the site plan and adhered to by eye-witnesses. Blood was found on the demarcation line of the field of Chokhey and Kehri Khatik, which is above the plot of Hoti Lal. No where in the site plan place of recovery of spent cartridges is shown. It is also highly improbable that in a single barrel gun two spent cartridges can remain embedded. No one has said that it was a double barrel gun. If one cartridge remain sleadfast in the barrel the gun cannot be made again. These are glaring circumstances occurring in the statement of Hoti Lal. They render his testimony unreliable. 10. The Investigating Officer has admitted that blood stained earth was not sent to the chemical examiner or the serologist for determination of it being human blood and also its group. He had also not sent the gun and recovered cartridges to the ballistic expert for certification that they were discharged from this very gun. These are further lacunas in the prosecution case. The Investigating Officer has further proved that Hoti Lal in his 161 Cr. P. C. statement told him that Kedari with his spade was throwing the mud obtained by cutting the mend into his field and thus was extening the area of his field towards the deceased's plot. But from the site plan this fact is not proved at all. According to the Investigating Officer this was already ploughed. The statement of Hoti Lal clearly shows that Barsin and potato crops were standing in the field of Kedari. If this is a fact then no question of ploughing the field arise in the case. In that situation the mend must have been disturbed long also. Motive, thus, is attributable to the prosecution. The probability that the prosecution side might have gone there armed to take possession of the portion that in their opinion was usurped by accused party. Thus, from his evidence it is not clinchingly proved that the defence side was aggressor. 11. Coming to the statement of Harish Chandra P. W. 2 we find that he has in examination-in-chief supported the statement of Hoti Lal. He is the signatory of all the papers prepared by the Investigating Officer regarding various recoveries. He is member of the same Gaon Sabha of which Hoti Lal P. W. 1 is Pradhan. Therefore, it is very likely that he is adhering a partisan approach. He is employed somewhere. His duty is from 8. 00 a. m. till 5. 00 p. m. He has admitted that before he reached the spot Smt. Lal Kaur, Saroj, Kamlesh, Sher Singh, Chiddu Singh, Jaipal Singh were present there from before. Abuses were being exchanged between these two sides. At the time of the occurrence these assailants were in their fields and prosecution side was at the field of Hoti Lal. They were separated by a distance of 15-20 steps from each other. He has admitted that he had not seen Kedari cutting any mend but has seen the spade in his hand. His statement was recorded in the hospital. He denied his statement to the Investigating Officer that Kedari was cutting mend and was throwing mud into the plot of Hoti Lal in order to occupy his land. He claimed that he did not know from where Sher Singh, Saroj, Smt. Lal Kaur came to the spot. He denied his statement to the Investigating Officer that on the alarm raised from the field son Sher Singh, Smt. Lal Kaur and daughter Saroj came there from Hoti Lal's house. He has deposed that if Hoti Lal etc. had any quarrel with Kedari etc. before his arrival he did not know about this. He stated that Khacher Mal was ploughing his field since morning. Kedari also was present there. He had denied that Hoti Lal has constructed any road in the east of Khacher Mal's field. In the east of the field of Khacher Mal there was a mend. But now Khacher Mal had planted shrubs on it and thereof blocked the passage. The site plan does not corroborate him on this point. He pleaded ignorance about the existence of any party in the village. He admitted that he contested the election on the schedule caste quota seat but none has opposed him. He denied that he and Hoti Lal belong to one party and they are forcibly trying to occupy the land belonging to accused. He has denied his participation in the assault on Kedari. He has claimed that the fire hit Smt. Lal Kaur. He also sustained injury underneath his eye. He claimed that he did not fall unconscious but had fallen on the ground. He was unable to tell whose fire struck near his eye. According to him after receiving first fire Smt. Lal Kaur, Sher Singh and Smt. Kamlesh went behind the burji of Ram Swaroop. Others could not get time to run away. They had fallen at some distance from each other in the plot itself. Saroj when she received injury was little behind Smt. Lal Kaur and was on mend between Ram Swaroop and Kedari's field in southern corner. He too was on the mend in the middle. He denied any blood lying on the ground though injured fell there. According to him the villagers had taken him to Kasimpur Hospital from the spot. He admitted that Hoti Lal 6accompanied him to Kasimpur Hospital. Their injuries were bandaged there. They stayed there for about half an hour. From there they were taken to Malkhan Singh Hospital. The doctor at Kasimpur Hospital did not prepare any report of their injuries. He also corroborated that Hoti Lal did not accompany him to District Hospital, Aligarh but has come there later on. According to him by the time he reached the Hospital Smt. Lal Kaur was dead. He had claimed that he told the Investigating Officer that Sher Singh and Smt. Kamlesh hide themselves behind burji and caught hold of the gun. He was unable to offer any explanation for its omission in his 161 Cr. P. C. statement. He admitted that the Holi Lal is his PHOOPHA. He denied the factum that Hoti Lal was prosecuted by the appellant for cutting their mend. He has denied the suggestion that on account of party bandi and enmity he is deposing in his case. He has admitted that in the field of Khacher Mal in the southern portion Arhar crop was standing but there was no crop. According to him Hoti Lal is serving some where and is not doing any agriculture. He has no bullocks. Kedari did not assault any one in his presence. He was unable to explain whether Kedari ran away with spade or not. The fact that the villagers have taken the injured to the hospital, as earlier discussed, is not borne out from the record. On the contrary the record establishes that Harish Chandra was taken to the hospital by Hoti Lal himself. The statement of Dr. N. K. Maheshwari, M. O. District Hospital, Aligarh proved this fact. This doctor was admitted that injuries of Smt. Lal Kaur were caused by some blunt weapon. He did not notice any charring inside injury nor he had noticed any burnt hair. He did not notice part of any pellet inside her injuries. He has further stated that the person who had brought Smt. Lal Kaur had told that injuries were caused by fire-arm, therefore, he examined injured carefully to find out whether injury is of fire-arm or blunt weapon. In the absence of blackening and charring he felt her injuries being caused by blunt weapon. He admitted that one or two pellets can be inserted after medical examination in these injuries. 12. P. W. 6 Dr. V. K. Sarikwal has admitted that brain matter mixed with blood was coming out of the wound. There was no bandage on her injury. He has admitted that this injury is the result of use of excessive force because the bones were broken. He was unable to give out the distance from which fire would create such a force or the impact. Dimension of injury is 2" x 1". He has also found absence of any blackening of tattooing. This clearly is indicative of the fact that two stray pellets are not capable of causing such an extensive damage underneath this injury. Right frontal, parietal and occipital bones were fractured. Pellets were not in any manner de-shaped. In these circumstances it cannot be gathered from the medical evidence available on record that these injuries were definitely caused by a fire-arm. In all probability it might have been the result of a powerful lathi blow on her head. Later on pellets might have been inserted to make it appear like a fire-arm injury. 13. Thus, from the discussion made above we are not in a position to uphold the conviction of these appellants specially when we have already held that the prosecution apparently has not come out with clean hands and is guilty of suppressing from genesis of the marpit. Witnesses are telling lies. The conduct of the Investigating Officer is also deplorable. The defence case apparently is probablised from the facts and circumstances discussed above. Injuries of Kedari and Khacher Mal were not explained. The snatching of the gun in the circumstances by Sher Singh and Smt. Kamlesh is most improbable. Others were admittedly lying injured. When so many fires were already made there will it be possible for any one especially the above two to wait and come forward to snatch it. Admittedly the prosecution was in the vicinity of Kedari's field and not in their plot. They were standing in his potato field. P. W. 1 did not suffer any injury. The firing was made by Narottam from his own field. It was resorted to from a distance of 15-20 feet. Heavy dispersal in the circumstances must be there. It does not appear a case of 5-6 shots under any circumstances. It appears at the most a case of 2-3 shots. This is why this witness has claimed that all the shots did not hit them. The injured persons have suffered stray pellet injuries. He claimed that soon after this incident he prepared his report and straight away sent it to the police station. The incident occurred at 7. 30 a. m. and the First Information Report was lodged at 9. 10 a. m. The distance of police station is 5 Kms. The medical evidence suggests that he was present at Malkhan Singh Hospital from 9. 30 a. m. till 11. 40 a. m. His name alone finds place in these medical reports in the 'brought by' column. The First Information Report under these circumstances could not be lodged at alleged time. The injured persons were (sic) from the spot (sic ). It apparently was lodged at some different hours during the day after due deliberation. The probability that this incident occurred when they attempted to take forcible possession of Kedari's land to enlarge the area of their small plot and that on being prevented they launched an assault on the defence side cannot be ruled out in the facts and circumstances available to us from the record. These two things are impossible to reconcile. 14. The defence witness D. W. 1 Dr. M. L. Balucha has proved beyond doubt that injuries of Khacher Mal and Kedari are not fake or self suffered. So far as D. W. 2 Baldeo Singh is concerned his evidence does not help much the defence. 15. Now it has to be seen that if the prosecution fails to establish its case beyond reasonable doubt what benefit would accrue to the defence. It has become necessary because the defence has accepted liability of firing in exercise of their right of private defence of their person and property both. We do not find any truth in the prosecution version that Kedari was cutting the mend and throwing its mud in Hoti Lal's field for cogent reasons, that the prosecution has failed to prove area of its land by cogent evidence, that the defence was trying to take possession of some portion of Hoti Lal's plot. In our opinion even if it is accepted for the sake of arguments then this must have been done much before and the prosecution instead of taking recourse to law gathered there to either recover possession or tried to a portion a part of Kedari's plot to itself. In the process they appear to take recourse to use of force against Kedari and Khacher Mal. As a consequence to their aggression against two unarmed persons one of the appellants opened fire upon the prosecution party from a distance of 15-20 steps. The intention in these circumstances must not have been anything other than to deter and ward off that aggression. Whether in doing so one or more shots were fired would there be any Offence against him and if so what will be that offence. 16. In our opinion if defence side has fired one or more shots from a distance to ward off the aggression there will be a complete lack of any intention to commit murder of any one its part. We find that the prosecution itself is highly uncertain about the number of shots fired from the side of defence. It has clearly come in evidence that all the shots fired did not cause injuries. The medical evidence shows that all the injuries to injured on the prosecution side could be caused by one or two shots. The prosecution has alleged a discharge of 5-7 shots. The lone injury to Smt. Lal Kaur has become doubtful from a fire- arm in view of the emphatic admission made by P. W. 4. Dr. N. K. Maheshwari that he did not find any pellet inside her head injury despite serious effort. Shooting was made from a distance of 15-20 steps. In such a discrepant situation we do not find it safe to consider the submission raised by learned A. G. A. that Narottam appellant had exceeded his right of private defence of person and property both. It has become more difficult for the fact that the prosecution charges Narottam with using the gun against them whereas appellant Khacher Mal in his 313 Cr. P. C. claims the fires to himself. We have already found above that the prosecution is guilty of suppressing the genesis of marpit and the witnesses have presented a distorted and coloured version of the incident and the defence version that the incident occurred when the prosecution party attempted to take forcible possession of Kedari's land and in the process launched an attack on defence side is found more closer to truth it can be safely inferred that the accused party had a reasonable apprehension of suffering grievous hurt at least. Thus the case will be squarely covered by Section 97 and Section 100, description secondly, of the I. P. C. In these circumstances we do not find it proper and also fair to adopt to this course suggested by learned A. G. A. It is not feasible for us to convict Narottam of exceeding any right of private defence. 17. In the circumstances this appeal is allowed. The conviction and sentence of the appellants for which they were charged and tried are hereby set aside. They are acquitted of the charges. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are hereby discharged. Appeal allowed. .