JUDGMENT R.A. Misra, J. - Sarv Sri Bhola Nath, Komal Prasad, Chhotey Lal. Kallu Ram and Mangli were real brothers and resident in village Dhankuni in the district of Pilibhit. Bhola Nath possessed about 18 bighas of agricultural land. He died leaving his only son Chheda Lal as his heir when Chheda Lal was a minor aged about 12 years. Chheda Lal was mentally infirm. Chhotey Lal his uncle looked after his person and property including the agricultural land as his guardian after the death of his father and had cultivated sugar cane crop in a chak of six bighas in the year 1976. Chheda Lal separated himself from the guardianship of Chhotey Lal a few days before the occurrence of this case and began to reside with his first cousin Jiwan Lal (P. W. 5 ) son of Kallu Ram. Narain (P.W. 1) is also a first cousin of Chheda Lal being the son of Komal Prasad deceased. Narain (P. W. 1) and Jiwan Lal (P.W. 2) were cutting the aforesaid sugar cane crop on Mar. 21, 1976. Chheda Lal was also present there. The accused appellant Hori Lal. aged about 22 years armed with a Kaassi reached there along with his father Chhotey Lal at about 9 A . M. Chhotey Lal was armed with a lathi. Both began to abuse Narain (P.W. 1) and Jiwan Lal (P.W. 5) and assaulted them causing two lacerated wounds to each. Thereafter Hori Lal and his father left the place. Narain (P.W. 1 ) and Jiwan Lal (P.W. 5) reached their home after about 15 minutes of this occurrence and there again Hori Lal appellant and Chhotey Lal attacked them. Narain (P.W. ] ) was armed with a Danda. He began to ply the Danda causing injury to Chhotey Lal, just then Komal Prasad the father of Narain (P.W. 1) reached there to save him. Hori Lal dealt a lathi blow on his head. He fell down and became unconscinus. Narain carried his father to the Police Station and lodged F.I.R. there at 12.10 p.m. on the same date. Komal Prasat was examined by Dr. A. Kumar. Medical officer, Primary Health Centre, Neoria at 4 P.M. and found one lacerated wound 4 cm. x 1 cm. x 1 .5 cm. on the left side of head 8 c. above the left ear. Komal Prasat was examined by Dr. A. Kumar. Medical officer, Primary Health Centre, Neoria at 4 P.M. and found one lacerated wound 4 cm. x 1 cm. x 1 .5 cm. on the left side of head 8 c. above the left ear. Komal Pra sad succumbed to the injuries on the same night at 11.30 P.M. in the District Hospital, Pilibhit. Hari Ram Sharma (P.W. 6) investigated the same case and submitted charge-sheet against Chhotey Lal and Hori Lal. The prosecution examined Narain (P.W. 1), Pope Ram (P.W. 4) and Jiwan Lal (P.W. 5) as witnesses- of fact over and above five other witnesses. The learned Sessions Judge, on a consideration of field. He however arrived at the conclusion that the accused did not commit any offence by causing injuries to Narain (P.W. 1) and, Jiwan Lal (P.W. 5) at the sugar cane crop field. He however arrived at the conclusion that the occurrence which took place subsequently at the house of the accused was a free light among for.r persons to wit the two accused on one side and the two P.Ws. Nos. I and 5 on the other side and in that fight the accused Hori Lal appellant caused fatal injury to Komal Prasad and thereby committed an offence punishable under Section 304 I.P.C. He has, therefore, acquitted Chhotey Lal but convicted the accused appellant Hori Lal under Section 304 I.P.C. and sentenced him to undergo R.I. for ai period of seven years. He has felt aggrieved and come up in appeal. 2. I have heard learned counsel for both the parties and have gone through the evidence on record with care. 3. It is in evidence that Chheda Lal son of Bhola Nath was a minor suffering from mental infirmity when his father died leaving him and his property under the guardianship of Chhotey Lal. It is also in evidence that since the death of Bhola Nath till a few days before the occurrence of this case, Chheda Lal as well as his property was being looked after by Chhotey Lal. It is further proved that Chhotey Lal cultivated sugar cane crop in the Chak of six bighas which belonged to Chhedda Lal. It is also in evidence that since the death of Bhola Nath till a few days before the occurrence of this case, Chheda Lal as well as his property was being looked after by Chhotey Lal. It is further proved that Chhotey Lal cultivated sugar cane crop in the Chak of six bighas which belonged to Chhedda Lal. Under these circumstances the learned Sessions Judge has rightly held that Chhotey Lal was in possession of the crop and as such the accused did not commit any offence when they caused injuries to:varain (P.W. 1) and Jiwan Lal (P.W. 5) who were cuttin+ the aforesaid crop. It is also proved that in the incident which took place at the sugar cane crop field the accused Hori Lal and Chhotey Lal did not receive any injury. Naarain (P. W. 1) and Jiwan Lal (P.W. 5) did receive two lacerated wound each in that incident. 4. It is in evidence that both the accused Chhotey Lal and Hori Lal left the sugar cane crop field for their residence after causing injuries to Narain and Jiwan Lal. It is also in evidence that it was nearly 15 minutes after the first occurrence that Narain and Jiwan Lal reached the place where the second occurrence took place. The Investigating Officer has found blood at points shown by letters B and C in the site plan prepared by him and according to him he found the blood inside the Angan of the douse of accused Chhotey Lal. He has shown in the same site plan the place of actual occurrence with letter A and it is the main door of Chhotey Lal's house. Pope Ram (P.W. 4) has admitted in his cross-examination that it was at the door of Chhotey Lal's house where Narain (P.W. 1) dealt a lathi blow on the person of Chhotey Lal. He has further admitted that on receiving the lathi blow caused by Narain, the accused Chhotcy Lal fell down in the Angan of his house. He has further admitted that Komal Prasad also fell down at the door of Chhotey Lal's house. Subsequently he admitted that both Chhotey Lal and Komal Prasad fell down in the Ane:: of the house. A futile attempt has been made by Narain (P.W. 1) to establish that the occurrence has. He has further admitted that Komal Prasad also fell down at the door of Chhotey Lal's house. Subsequently he admitted that both Chhotey Lal and Komal Prasad fell down in the Ane:: of the house. A futile attempt has been made by Narain (P.W. 1) to establish that the occurrence has. taken place beneath a guava tree at a distance of 30-35 steps from the house of the accused. The only possible conclusion which can be drawn from the evidence on the record is that the second occurrence tool, place at the house of the accused Chhotev Lal and Hori Lal. 5. As I have observed above the accused Chhotey Lal and Hori Lal did not receive any injury in the first incident which took place at the sugar cane crop field. Only P. Ws. 1 and 5 received lacerated wounds in the first incident. The evidence on the record shows that in the second incident Chhotey Lal accused received one lacerated wound 5 cm. x 0.5 Cm x 0.5 cm.. 7 cm above right car and this iniriry was admitted]v caused by NTarain (P. W. 1) . The evidence further shows that Hori Lal accused appellant also received two injuries in the second incident. The fact that in the second incident Narain and Jiwan Lal did not receive any injury whereas Chhotey Lal and Hori Lal did receive injuries, makes the prosecution story improbable that Hori Lal and Chhotey Lal were aggressors in the second incident. Moreover there was no occasion for the accused to have been aggressors at their own house because in the first incident they did not receive any injury, though they had caused injuries to Narain and Jiwan Lal. It is proved beyond doubt that the second iacide-at took place at the residence of the accused in which the accused received injuries, in all probabilities had theaccused been aggressors they would certainly have caused a few injuries to Narain and Jiwan Lal in the second incident also. Where an occurrence takes place at the residence of the accused and inside their house in which only the accused receives injuries, it is impossible to believe that they were the aggressors or that it was a case of free fight. The accused were at their own residence when Narain and Jiwan Lal reached there and caused injuries to them. They had no option but to defend themselves. The accused were at their own residence when Narain and Jiwan Lal reached there and caused injuries to them. They had no option but to defend themselves. No case of free fight is made out from the evidence on the record and the finding of the court below that it was a case of fret; fight at the residence of the accused is incorrect. The only possible conclusion which can be drawn from the evidence on record is that Narain P.W. I and Jiwan Lal P.W. 5 were aggressors and wanted to take revenge of the first incident in which they received injuries. 6. Narain (P . W. 1) says that when he caused Danda injury to the accused Chhotey Lal then the accused Hori I.al dealt lathi blow causing fatal in to Komal Pd. He has denied the defence suggestion that the accused Hori Lal used a lathi in defence of his father and the lathi blow accidentally landed on the head of Kornai Prasad. Jiwan Lal (P . W. 5) says that Komal Prasad reached the scene of occurrence to pacify the parties and Hori Lal accused dealt lathi blow on his person. He has denied the defence suggestion that the accused Hori Lal used his lathi in defence of his father and just then Kornai Prasad came in between and received the injury by accident. Pope Ram (P.W. 4) has admitted in his cross-examination that accused Hori Lal used ajathi in self defence when. his father fell down on receiving a head injury and thereby caused the fatal injury to Kornai in self defence. It is abundantly clear from the evidence on record that deceased Komal Prasad was not a party in either of the two incidents. He admittedly reached the scene of the second incident to intervene and pacify the parties. The accused Hori Lal could have no motive for causing an injury whatsoever to Komal Prasad. The defence theory is that when Chhotey Lal fell down on receiving the head injury, then Hori Lal in exercise of the right of self defence, aimed a lathi blow on Narain who had caused the injury to his father and in the meantime suddenly Komal Prasad came in between Hori Lal and Narain and the lathi blow which was aimed at Narain accidentally landed on the head of Kornai Prasad causing the fatal injury. The defence has examined Shyam Lal (D . W. 1) who has fully supported the aforesaid theory of the defence. He swears that the accused Narain dealt a lathe blow on the person of Chhotey Lal who fell down in the Angan. Narain aimed another lathe blow and then the accused Hori Lal rushed for the defence of his father. He was with a lathi and wanted to assault Narain (P . W. 1) . Suddenly Komai Prasad came in between and the lathi blow landed on his head. Kornai Prasad fell down. He is a close neighbour of the accused as well as the complainant. He is a natural witness of the occurrence. He has been cross-examined at length but nothing has been pointed to discredit his testimony of a witness simply because he appears for the defence. The courts have to give cogent reasons or discarding of the fact whether he appears for the prosecution or for the defence. The learned Sessions Judge has not given any good reason for discarding the sworn testimony of this witness. The defence version is supported by this witness and appears more probable that the prosecution story because as held above there was no motive for the accused to assault Komal Prasad who reached there for a good cause, for pacifying both the parties. The real assailant Narain who had caused the injury to Chhotey Lal was present there and there was no reason for the accused to leave him and assault Komal Prasad in self defence. The only possible conclusion which can be drawn from it' evidence on the record is that when Chhotey Lal fell down on receiving the head injury, then his son Hori Lal aimed the lathi blow in defence of his father. It was aimed at the assailant Narain but suddenly Kornai Prasad came in between the two and the lathi blow which was meant for Narain, landed on the head of Komal Prasad causing fatal injury. 7. To claim a right of private defence extending to voluntary causing of death, the accused is required to show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused. In the, instant case the accused have clearly discharged this burden. Chhotey Lal had received lathi injury on most vital part of his body and was lying injured. In the, instant case the accused have clearly discharged this burden. Chhotey Lal had received lathi injury on most vital part of his body and was lying injured. The prevailing circumstances did provide reasonable ground for apprehending that either death or grievous hurt would be caused if force is not used in defence. Under these circumstances Hori Lal accused appellant was well within his right to voluntarily causing a fatal injury to Narain in the defence of his father who was lying injured. He was, therefore, doing a lawful act and in a lawful manner when he aimed the lath; blow at Narain, but suddenly Komal Prasad came in between and received the injury. Hori Lal has not caused the injury to Konial Prasad with any criminal intention or knowledge. He has caused it in the course of doing a lawful act in a lawful manner and by lawful means. The evidence on the record does not disclose the absence of such proper care and caution on the part of the accused Hori Lal which is essence of criminality in those rash and negligent acts which are made punishable under the Penal Code. The caution which the law requires is not the utmost that can be used. It is sufficient if it is reasonable such as is usual in ordinary and similar cases. The amount of care and caution must be such as a prudent and reasonable man would consider to be adequate upon all the circumstances of the case. In the instant case the appellant aimed the lathi blow at Narain in lawful exercise of right of self defence. But unfortunately Komal Prasad came in between and the blow of lathi which was meant for Narain landed on his head. Having considered the entire facts and circumstances of the case I have no hesitation in Arriving at the conclusion that it is a pure case of accident and the accused appellant Hari Lal is not unity of having committed Any offence. Section 300 of the l . P . C. comes to his aid. The learned Sessions Judge has wrongly convicted and sentenced him. The appeal shall, therefore be allowed. 8. The appeal is allowed. The conviction and sentence passed against accused appellant Hari is set aside. He is acquitted of Z the cha He is on bail. His bail bonds stand discharged. He need not surrender.