S. K. SETH, J. ( 1 ) SHAMSH Ahmad (P. W. 6) was a resident of village Bawalia in Raisen district. He was an old man of 78 years. He had married several times. Accused Kamar Ahmad was his son from his first wife. Accused Shamima Begum was the wife of accused Kamar Ahmad. Accused Shafiq Ahmad was son of accused Kamar Ahmad. ( 2 ) IT appeared that for some reason there was bitter enmity between Shamsh Ahmad and his sons from his other wife on one hand and his son accused Kamar Ahmad from the first wife and members of the family of the said accused on the other. Accused Kamar Ahmad along with the members of his family lived in a separate house situated by the side of the house in which Shamsh Ahmad lived with the sons of his other wife. An idea about the location of the two houses can be had from map Ex. P-2 proved by Patwari Pannalal (P. W. 3) in the case. ( 3 ) IT was established very clearly from the evidence produced in the case that a couple of days prior to the date of the incident when accused Kamar Ahmad had been away from the village the cattle of the said accused had strayed into the field of Shamsh Ahmad and two of the sons of Shamsh Ahmad from his other wife namely Ayyub Ahmad (P. W. 7) and Syed Ahmad had exchanged hot words with accused Kamar Ahmads wife and children and also indulged in zooma zapti and marpeet with them over the said matter. ( 4 ) THE incident took place inside the house of accused Kamar Ahmad on the morning of 19-9-1978 at about 8 A. M. Apart from Ayyub Ahmad (P. W. 7) and Syed Ahmad, sons of Shamsh Ahmad from his other wife included Ameer Ahmad and Rafiq Ahmad, It is his two of his above-said sons namely Ameer Ahmad and Syed Ahmad who met with their deaths as a result of the injuries received by them during the course of the incident. In order to properly appreciate the case of the prosecution against the three accused namely accused Kamar Ahmad, his wife Shamina Begum and his son Shafiq Ahmad, it is necessary to know about 2 or 3 more persons. Shareef Ahmad (P. W. 4) and Aziz were brothers of Shama Ahmad. In order to properly appreciate the case of the prosecution against the three accused namely accused Kamar Ahmad, his wife Shamina Begum and his son Shafiq Ahmad, it is necessary to know about 2 or 3 more persons. Shareef Ahmad (P. W. 4) and Aziz were brothers of Shama Ahmad. Akhtar Ali (P. W. 6) lived in the house of Shamsh Ahmad and did the job of teaching children in the village. ( 5 ) IT was Akhtar Ali (P. W. 5) who lodged the first information report (Ex. P-8) about the incident at police station Dehagaon situated at a distance of 7 miles from village Bawalia at About 10 A. M. on the same day i. e. within about 2 hours of the incident. It was relevant to bear in mind as to what was the first version of the incident as disclosed in the first information report by Akhtar Ali. The said version was as follows: There was a batcheet (hot talk) between accused Kamar Ahmad and Shamash Ahmad, Ameer Ahmad and Syed Ahmad over grazing of cattle in the field. At that time, accused Shafiq Ahmad arrived there, picked up the gun in sudden anger and fired the same at Ameer Ahmad. The gun shot hit Ameer Ahmad in the chest. Accused Kamar Ahmads wife also reached there. She carried a knife and was in an angry mood. She hit on the back of Shamsh Ahmad with the knife. The wounded persons fell to the ground. The informant i. e. Akhtar Ali and Shareef Ahmad (P. W. 4) had tried to intervene in the matter. Thereafter, Safiq Bhaiyya came there and arranged to take the wounded persons to the Raisen Hospital. The informant i. e. Akhtar Ali came to the police station to lodge the report. ( 6 ) THE abovesaid first version of the incident, as disclosed in the first information report Ex. P-) lodged by Akhtar Ali (P. W. 5) had certain significant aspects one that the genesis of the incident was said to be a hot talk over grazing cattle between accused Kamar Ahmad on the one side and Shamsh Ahmad, Ameer Ahmad and Syed Ahmad on the other. P-) lodged by Akhtar Ali (P. W. 5) had certain significant aspects one that the genesis of the incident was said to be a hot talk over grazing cattle between accused Kamar Ahmad on the one side and Shamsh Ahmad, Ameer Ahmad and Syed Ahmad on the other. Two that there was no mention of the fact that the incident had taken place inside the house of accused Kumar Ahmad nor was there any explanation as to how Shamsh Ahmad and others happened to be in the house of Kamar Ahmad at the relevant time. Three that in the entire version no overt act of any kind was attributed to accused Kamar Ahmad and four that there was neither any mention nor explanation of the injuries sustained by the three accused during the course of the incident. ( 7 ) APART from Akhtar Ali (P. W. 5), other eye-witnesses to the incident examined by the prosecution were Shareef Ahmad (P. W. 4, Shamsh Ahmad (P. W. 6) and Ayyub Ahmad (P. W. 7 ). The version of the incident given by the abovesaid witnesses was quite different from what was contained in the first information report mentioned above. Even Akhtar Au (P. W. 5) who had lodged the first information report adopted this different version alongwith others in his evidence in the Court the said different version given in more or less a parrot like fashion by the witnesses mentioned above, was as follows: On the date of the incident, Ameer Ahmad had gone to the house of accused Kamar Ahmad because he was called by accused Shamima Begum through her daughter Nasini (P. W. 1 ). There was hot exchange of words between Ameer Ahmad and accused Kamar Ahmad. Accused Shamima Begum asked Ameer Ahmad to court inside the house and accordingly both accused Kamar Ahmad and Ameer Ahmad went inside the house. Soon thereafter, accused Shamima Begum caught hold of the hair of Ameer Ahmad. Accused Safiq Ahmad uttered the words SALE KYA BAT KARTE HO ABHI NIPTAYE DETA HOONT, picked up the gun hanging on the wall and fired at the chest of Ameer Ahmad which injured the accused Shamima Begums left forearm also. At this stage, Syed Ahmad and Shamsh Ahmad also reached there. Accused Safiq Ahmad uttered the words SALE KYA BAT KARTE HO ABHI NIPTAYE DETA HOONT, picked up the gun hanging on the wall and fired at the chest of Ameer Ahmad which injured the accused Shamima Begums left forearm also. At this stage, Syed Ahmad and Shamsh Ahmad also reached there. Syed Ahmad snatched the gun from the hands of accused Safiq Ahmad and dealt him a blow with the back of the gun. Syed Ahmad was also assaulted by accused Kamar Ahmad with a lathi on his head. In the situation, Syed Ahmad dealt a blow with the back of the gun on accused Kamar Ahmad also. Thereafter, on instigation of accused Kamar Ahmad, accused Shamima Begum dealt a chhura blow by both the hands on the back of Sayyeed Ahmad as a result of which he fell to the ground. Shamsh Ahmad told accused Shamima Begum as to what she was doing and tried to pick up Sayyeed Ahmad. But, then, accused Shamima Begu m dealt a chhura blow on his hack also. At this stage, Ayyub Ahmad (P. W. 7) reached there. He snatched the lathi from the hand of accused Kamar Ahmad and dealt blow to him. ( 8 ) IT was strange that the trial court failed to appreciate that there was material discrepancy between the first version of the incident as disclosed in the first information report Ex. P-3 lodged by Akhtar Ali and the version that was put forth by the alleged eyewitnesses including Akhtar Ali himself in their evidence in the court. It was also strange that the trial court failed to appreciate that the subsequent version was put forth so meticulously only with a view to get over the lacunae pointed out above that had existed in the first version. Believing the subsequent version, and taking into account the medical evidence produced is the case, the trial court convicted accused Shafiq Ahmad under section 302 of the Indian Penal Code for the murder of Ameer Ahmad and under section 302 read with section 34 of the Indian Penal Code for the murder of Syed Ahmad and sentenced him to imprisonment for life. Similarly, it convicted accused Kamar Ahmad and Shmima Begum under section 302 read with section 34 of the Indian Penal Code for the murders of Ameer Ahmad and Sayeed Ahmad. Similarly, it convicted accused Kamar Ahmad and Shmima Begum under section 302 read with section 34 of the Indian Penal Code for the murders of Ameer Ahmad and Sayeed Ahmad. It is being aggrieved by the said convictions and sentence that the three accused have filed the present appeal in this court. ( 9 ) WE have already pointed out above the basic error that was committed by the trial court in appreciating the evidence produced on behalf of the prosecution in the case while holding the three accused guilty of the offences alleged against them. It would be useful to have a look at the injuries suffered by the accused persons during the course of the incident. Accused Kamar Ahmad had one lacerated wound 2 x 1/2 x on the right parietal bone of the skull, an abrasion i x on the lateral aspect of the left forearm, a contusion 2 x 1 over the right side of the back, a contusion 2 x 1 over the right knee joint and a contusion 3 x 11/2 over the left side of the chest. In view of the injuries suffered by him he had to be admitted for observation. Accused Shamima Begum had a lacerated wound 2 x 1/2 x over he right parietal bone of the skull, a swelling over the do real aspect of the left hand and a gun shot wound over the left upper arm directed from behind forwards and downwards producing two wounds. Accused Shafiq Ahmad had a lacerated wound 2 x x 1/26 over the right parietal bone of the skull and a swelling over the left thumb. ( 10 ) THE defence taken by the accused person appeared to be that after accused Kamar Ahmad had returned to village Bawalia on the previous night, Shamsh Ahmad and his sons from his other wife including Ameer Ahmad and Sayeed Ahmad picked up quarrel with him over the matter relating to grazing of cattle and made an assault on him after entering into his house and it was in the said circumstances that the incidents of shooting and stabbing resulting in the deaths of Ameer Ahmad and Sayeed Ahmad took place. It was contended by the learned counsel for the accused appellants that the above said defence stood sufficiently probabilised from the evidence produced in the case and that the accused having acted in exercise of their right of private defence of person their acts were fully protected. ( 11 ) NOW, it was clear from the evidence produced in the case that the story about Ameer Ahmad having been first called to the house of accused Kamar Ahmad by accused Shamima Begum through her daughter Nazmi, and thereafter other persons namely Shamsh Ahmad, Syeed Ahmad and others having gone to the house of accused Kamar Ahmad one after another was clearly an after thought and a connection. There was overshelming evidence to the effect that the alternation between Ameer Ahmad and accused Kamar Ahmad had taken place at the door of the house of accused Kamar Ahmad itself. What appeared to have happened was that as a result of an alternation between accused Kamar Ahmad on the one hand and Shamsh Ahmad and his sons from his other wife including Ameer Ahmad and Sayeed Ahmad on the other, the latter entered into the house of accused Kamar Ahmad and made an assault on him. This probability was consistent with the first version of the incident given out by Akhtar Ali here no overt act whatsoever was found attributed to accused Kamar Ahmad. ( 12 ) IT was more or less an undisputed position that accused Shafiq Ahmad arrived at the place of occurrence soon thereafter. It appeared very likely that seeing his father being assaulted by Ameer Ahmad, be picked up the gun hanging on the wall and fired a shot at Ameer Ahmed which hit him in the chest and which at the same time incidentally caused an injury to accused Shamima Begum in her left forearm also. It further appeared that even thereafter the assault on accused Kamar Ahmad continued and it was in that process accused Shamima Begum picked up a choora and caused injury to Sayeed Ahmad and Shamsh Ahmad with the same. It further appeared that even thereafter the assault on accused Kamar Ahmad continued and it was in that process accused Shamima Begum picked up a choora and caused injury to Sayeed Ahmad and Shamsh Ahmad with the same. The abovesaid was the only reasonable view on the basis of which it could be understood as to how in spite of there being inimical relations between the two parties, Shamsh Ahmad and his sons from his other wife including Ameer Ahmad and Sayeed Ahmad happened to be inside the house of accused Kamar Ahmad on that day and the incident in question happened in the manner it did resulting in injuries to both the parties. ( 13 ) IN the abovesaid views of the matter, it could not be doubted that in the manner Shamsh Ahmad and his sons from his other wife including Ameer Ahmad and Sayeed Ahmad had all of a sudden and in a quarrelsome mood, gone into the house of accused Kamar Ahmad and begun assaulting the said accused, accused Shafiq Ahmad, who arrived there soon thereafter, and saw the said assault, could have a reasonable apprehension in his mind that in case he did not act immediately to save his father at least grievous hurt, if not death, might result to him, The act of accused Shafiq Ahmad in having picked up his gun from the wall and fired a shot as. Ameer Ahmad was thus date at a time when right of private defence of person of his father was available to him. In the situation as it had existed, it was difficult to hold that merely because the weapon picked up and used by him happened to be a gun there was any exceeding of the abovesaid right by him. Even otherwise, we find that the said accused has already suffered sufficient punishment by remaining in jail for a period of more than five years and we do not see any sense in convicting him for exceeding the right of private defence now. ( 14 ) AGAIN, in the manner the gun had been seized from the bands of accused Shafiq Ahmad by Sayeed Ahmad, and in the manner the further assault was made on accused Kamar Ahmad and accused Shafiq Ahmad. Accused Shamina Begum could also have a reasonable apprehension in her mind about the grave commences that might follow. ( 14 ) AGAIN, in the manner the gun had been seized from the bands of accused Shafiq Ahmad by Sayeed Ahmad, and in the manner the further assault was made on accused Kamar Ahmad and accused Shafiq Ahmad. Accused Shamina Begum could also have a reasonable apprehension in her mind about the grave commences that might follow. It was significant that it was only afterwards that the weapon was picked up by her. It was reasonable to assume that she acted in the manner she did only with a view to defend her husband. As far as accused Kamar Ahmad is concerned, it was obvious from what has been stated above that instead of being as assailant himself he was the victim of assault. The question of holding him guilty of any of the offences alleged against him does not arise. ( 15 ) FOR the reasons stated above, the appeal is allowed. The convictions and sentences of the accused appellants under Sections 302 and read with Section 34 of the Indian Penal Code are set aside and they are acquitted Accused Shafiq Ahmad, who is in jail, shall be set at liberty forthwith unless required to be detained in some other matter. Appeal allowed. .