JUDGMENT H.C.P. Tripathi, J. - Appellant Narain Singh and his brother Lal Singh have been convicted by the learned temporary Civil and Sessions Judege, Bulandshahr, on the charge of murder and Narain has been sentenced to death u/s 302 IPC and Lal Singh to undergo imprisonment for life u/s 302 read with Section 34 IPC. Bahori an eleven years old son of Narain Singh who too was sent up for trial u/s 302/34 IPC was convicted by the learned Sessions Judge for an offence u/s 352 IPC and was released after due admonition. The two brothers have come up in appeal against their conviction and sentences and the learned Sessions Judge has made a reference for the confirmation of the sentence of death inflicted on Narain. 2. The prosecution story may be stated briefly. The two Appellants and deceased Gopali resided at village Karora within the jurisdiction of police station Pahaso in the district of Bulandshahr. About two years back Gopali and his brothers had purchased the mango crop of the grove of one Bahori Singh in the village. On 5-5-1965 at about 12 noon Gopali (deceased) and Kanhai (PW 8) were sitting in the said grove and watching the mango crop. Appellant Narain came in the grove with his three cows. Gopali raised an objection to the presence of cows in the grove which led to an altercation between the two and Narain threatened to see him later. On the next day i.e. 6-5-1965 at about 3 p.m. the two Appellants and Bahori son of Narain again visited the grove along with three cows. They also plucked some mangoes. When Gopali protested they fell on him and threw him on the ground. Lal Singh and Bahori pressed the shoulders of Gopali while Narain crushed Gopali's testicles with his hands. On the cries of Gopali the villagers who were at their respective thrashing floors nearby rushed to the scene and witnessed the occurrence. On their arrival the Appellants bolted away leaving Gopali dead at the spot. When the miscreants were running away one Khoobi a resident of the village (PW 5) who was coming from the otherside to the grove gave a lathi below on the head of Narain. Narain bent down under its impact, recovered immediately after and then fled away. On their arrival the Appellants bolted away leaving Gopali dead at the spot. When the miscreants were running away one Khoobi a resident of the village (PW 5) who was coming from the otherside to the grove gave a lathi below on the head of Narain. Narain bent down under its impact, recovered immediately after and then fled away. Deep Chand brother of the deceased got a report of the occurrence scribed at the spot and handed over the same at police station Pahaso five miles away on the same date at about 4.25 p.m. giving the essentials of the prosecution story and mentioning therein that the two Appellants and Bahori had grappled with the deceased and crushed his testicles which led to his death. On the basis of this report a case was registered and investigation followed. 3. Sub-Inspector Ram Autar Tyagi (PW 9) reached the village in the evening and found the dead body of Gopali lying in the grove. He sent it for post mortem examination. He prepared a site plan of the scene and arrested Appellant Narain from his house on the next morning. The other two Appellants surrendered themselves in court on 2-5-1965. 4. The post mortem examination on the dead body of Gopali was performed by Dr. J. Section Sood (PW 5) on 7-5-1965 at 2 p.m. at the district hospital, Bulandshahr who found an ante-mortem abraded contusion 4" 4" over both the sides of the scrotum of the deceased and his testicles contused. Death in medical opinion was due to shock and haemorrhage on account of contusion of testicles. 5. At the trial, Appellants pleaded not guilty to the charges. Both before the courts of the committing Magistrate and the learned trial judge Lal Singh and Bahori had denied their presence at the spot and participation in the occurrence. According to them they had been falsely implicated in the case by the witnesses as they happened to be respectively the brother and son of Narain. Narain, however, has admitted to have participated in the occurrence under consideration but gave out his own version of it. According to him his two cows while grazing near the grove of Gopali had strayed in it. The Appellant who was alone went in the grove to drive them away. Gopali was present there with a lathi. Narain, however, has admitted to have participated in the occurrence under consideration but gave out his own version of it. According to him his two cows while grazing near the grove of Gopali had strayed in it. The Appellant who was alone went in the grove to drive them away. Gopali was present there with a lathi. He questioned him as to why the cows had come in the grove. Appellant told him that they had strayed in the grove by mistake and he should be excused for the same. Gopali began showering lathi blows on him. When the Appellant found his life in danger he wanted to catch hold of Gopali's legs to make him fall on the ground. In that process the testicles of Gopali came in his hands and got pulled making him fall on the ground. The Appellant had received a number of injuries and when he was preparing to go to the police station for making a report and get his injuries examined he was arrested by a constable and sent to jail where his injuries were examined. In short according to the Appellant he did not catch hold and press the testicles of the deceased deliberately rather when he tried to catch hold of the legs of the deceased while exercising his right of self defence the testicles of the deceased came into his hands and got contused. Appellant denied to have visited deceased's grove on the previous day. 6. Dr. H.P. Goel who was examined in defence testified to have medically examined Narain in the district jail at Bulandshahr on 8-5-1965 and to have found nine simple injuries on his person consisting of one lace (sic) Wound 1 1/2" 1/4" 1/4" on the wap of his head 4 1/2" above the right ear, three contusions and four abrasions. The injuries were caused by some blunt weapon. 7. The case of the prosecution rests on the testimony of Deep Chand, Ratan Lal, Leela and Kanhai (PWs 1, 3, 4 and 8) who furnished an eye-witness account of the occurrence. 8. Khubi (PW 5) stated to have given a lathi blow on the head of. Appellant Narain when he was running away after inflicting injuries on the deceased. 9. The case of the prosecution rests on the testimony of Deep Chand, Ratan Lal, Leela and Kanhai (PWs 1, 3, 4 and 8) who furnished an eye-witness account of the occurrence. 8. Khubi (PW 5) stated to have given a lathi blow on the head of. Appellant Narain when he was running away after inflicting injuries on the deceased. 9. The learned Sessions Judge on an assessment of evidence held the charge of murder established against Appellants Narain and Lal Singh and convicted and sentenced them as has been indicated above. 10. Having heard the learned Counsel for the Appellants and having given our anxious consideration to the evidence and circumstances of the case we are of opinion that the prosecution story bristles with improbabilities, the presence of Appellants Lal Singh and Bahori at the scene of occurrence is highly doubtful, that the version of the occurrence as given by Narain is reasonably probable and for the reasons detailed hereafter the conviction of the Appellants is not sustainable. 11. There is no plausible explanation offered by the prosecution of the various injuries which were found on the person of Appellant Narain at the time of his medical examination. In the first information report there is no mention that Narain had received any injury at all. It has come in the evidence of Sub Inspector Ram Autar (P.W. 9) that prosecution witnesses Deep Chand, Kanhai, Leela and Ratan Lal who were examined on the next day of the occurrence did not tell him that Appellant Narain had been struck a lathi blow by Khubi (P.W. 5) when he was running away from the scene. Khubi has stated that he was interrogated by the investigating officer after four days of the occurrence and it was then for the first time that he disclosed to have given a lathi blow to Narain when he was running away. Khubi has stated that he had given only one lathi blow to Narain but he was not sure that he had a bleeding injury. He admitted to have stated before the committing court that Deep Chand and other witnesses had met him in the grove of Gopali before going to lodge a report. It is thus obvious that the statement of Khubi to have given one lathi blow to Narain does not inspire reliance. He admitted to have stated before the committing court that Deep Chand and other witnesses had met him in the grove of Gopali before going to lodge a report. It is thus obvious that the statement of Khubi to have given one lathi blow to Narain does not inspire reliance. It is also obvious that in view of the nature and number of injuries which were found on the person of Narain who was arrested soon after and then sent to jail this belated explanation offered by the prosecution does not inspire reliance. We are, therefore, of opinion that in all probability Narain received injuries at the hands of Gopali in the grove. 12. In the first information report it was alleged that Lal Singh, Narain and his son Bahori all were grappling with Gopali and pressing his testicles. At the stage of trial, however, a change was effected in this story and the witnesses stated to have seen Lal Singh and Bahori pressing the shoulder of Gopali and Narain crushing his testicles with both of his hands. This change in our opinion was deliberately effected when it was realised that the allegation that three persons were catching hold of the testicles of the deceased was too absurd to merit any serious consideration. Bahori is a young boy of 10 of 11 years of age. How could he pin down the deceased by his shoulders on the ground is not comprehensible. If Lal Singh and Bahori had also been present at the scene and had participated in the occurrence in all probability they too would have received some injuries at the hands of Gopali. The fact that Narain alone had received a number of injuries but not Lal Singh and Bahori makes the presence of the aforesaid two persons at the scene highly doubtful. 13. Deep Chand, Ratan Lal, Leela and Kanhai (P.Ws. 1, 3, 4 and 8) have stated to have heard the cries of the deceased and then to have run to the grove from a distance of 150 yards. They alleged to have seen the deceased lying on the ground, Lal Singh and Bahori pressing his shoulders and Narain pulling out his testicles. If these witnesses were at such a long distance it is difficult to believe that they would have reached in time to have been Narain pressing the testicles of the deceased. They alleged to have seen the deceased lying on the ground, Lal Singh and Bahori pressing his shoulders and Narain pulling out his testicles. If these witnesses were at such a long distance it is difficult to believe that they would have reached in time to have been Narain pressing the testicles of the deceased. In all probability by the time they would have reached there the entire occurrence would have been over. 14. The defence taken by Appellant Narain appears to be reasonably probable. We have already stated that in view of the false explanation offered by the prosecution of the injuries found on the person of Narain we are inclined to believe that those injuries were caused to him by the deceased with a lathi. One of those injuries is a lacerated wound of a substantial size on the head of Narain and three of them are contused wounds. The Appellant has stated that when his cows strayed in the grove of Gopali, Gopali got exasperated and inspite of Appellant's entreaties began belabouring him with lathis. The Appellant felt that his life was in danger. He then rushed towards him to catch hold of his legs but accidentally caught hold of his testicles which got pulled. Even if it is believed that after having received injuries from a lathi which was in the hands of the deceased who was repeatedly plying the same the Appellant deliberately caught hold of the testicles of the deceased he will be protected u/s 100 of the Indian Penal Code for having a right of private defence as the assault made on him by the deceased could reasonably cause an apprehension that it was likely to lead to his death or at the least cause grievous hurt to him. 15. In the result this appeal is allowed. The conviction and sentences of the Appellants as recorded by the trial court are set aside. Appellant Narain is in jail. He shall be released forthwith unless required in connection with some other case. The reference made by the learned Sessions Judge for the confirmation of the sentence of death on Appellant Narain is rejected. Appellant Lal Singh is on bail. His bail bonds are discharged. He need not surrender.