R. A. MISRA, J. ( 1 ) SARVSRI Bhola Nath, Komal Prasad, Chhotey Lal, Kallu Ram and Mangli were real brothers and residents 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. 5) were cutting the aforesaid sugar cane crop on 21st of March 1976. Chheda Lal was also present there. The accused appellant Hon Lal aged about 22 years armed with a kassi 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 (PW. 1) and Jiwan Lal (P. W. 5) and assaulted them causing two lacerated wounds to each. Thereafter Hon 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 Hon Lal appellant and Chhotey Lal attacked them. Narain (PW. 1) 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. Hon Lal dealt a lathi blow on his head. He fell down and became unconscious. Narain carried his father to the Police Station and lodged F. I. R. there at 12. 10 P. M. on the same date. Komal Prasad was examined by Dr. A. Kumar, Medical Officer, Primary Health Centre, Neoria, at 4 P. M. , and found one lacerated wound 5 cm x 1 cm. x 1. He fell down and became unconscious. Narain carried his father to the Police Station and lodged F. I. R. there at 12. 10 P. M. on the same date. Komal Prasad was examined by Dr. A. Kumar, Medical Officer, Primary Health Centre, Neoria, at 4 P. M. , and found one lacerated wound 5 cm x 1 cm. x 1. 5 cm on the left side of head 8 cm above the left ear. Komal Prasad succumbed to the injures on the same night at 11. 30 P. M. in the District Hospital, Pilibhit. Han Ram Sharma (P. W. 6) investigated the case and submitted charge-sheet against Chhotey Lal and Hon 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 entire evidence 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 fight among four persons, to wit the two accused on one side and the two P. Ws. Nos. 1 and 5 on the other side and in that fight the accused Hon 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 Hon Lal under Section 304 I. P. G and sentenced him to undergo R. I. for a 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 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 Chheda 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 Narain (P. W. 1) and Jiwan Lal (P. W. 5) who were cutting the aforesaid crop. It is also proved that in the incident which took place at the sugarcane crop field the accused Hon Lal and Chhotey Lal did not receive any injury. Narain (P. W. 1) and Jiwan Lal (P. W. 5) did receive two lacerated wounds each, in that incident. ( 4 ) IT is in evidence that both the accused Chhotey Lal and Hon 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 Band C in the site plan prepared by him and according to him he found the blood inside the angan of the house 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 Lals house. Pope Ram (P. W. 4) has admitted in his cross-examination that it was at the door of Chhotey Lals 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 Chhotey Lal fell down in the angan of his house. He has further admitted that Komal Prasad also fell down at the door of Chhotey Lals house. Subsequently he admitted that both Chhotey Lal and Komal Prasad fell down in the angan of the house. He has further admitted that on receiving the lathi blow caused by Narain, the accused Chhotey Lal fell down in the angan of his house. He has further admitted that Komal Prasad also fell down at the door of Chhotey Lals house. Subsequently he admitted that both Chhotey Lal and Komal Prasad fell down in the angan 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 took place at the house of the accused Chhotey Lal and Hon Lal. ( 5 ) AS I have observed above the accused Chhotey Lal and Hon Lal did not receive any injury in the first incident which took place at the sugarcane 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 ear and this injury was admittedly caused by Narain (P. W. 1 ). The evidence further shows that Hon 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 Hon Lal did receive injuries, makes the prosecution story improbable that Hon 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 incident took place at the residence of the accused in which the accused received injuries. In all probabilities had the accused been aggressors they would certainly have caused a few injuries to Narain and Jiwan Lal in the second incident also. It is proved beyond doubt that the second incident took place at the residence of the accused in which the accused received injuries. In all probabilities had the accused 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 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. 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 free 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. 1 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 Hon Lal dealt lathi blow causing fatal injury to Komal Prasad. He has denied the defence suggestion that the accused Hon Lal used a lathi in defence of his father and the lathi blow accidentally landed on the head of Komal Prasad, Jiwan Lal (P. W. 5) says that Komal Prasad reached the scene of occurrence to pacify the parties and Hon Lal accused dealt lathi blow on his person. He has denied the defence suggestion that the accused Hon Lal used his lathi in defence of his father and just then Komal Prasad came in between and received the injury by accident. Pope Ram (P. W. 4) has admitted in his cross-examination that accused Hon Lal used a lathi in selfdefence when his father fell down on receiving a head injury and thereby caused the fatal injury to Komal 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. 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 Hon Lal could have no motive for causing any injury whatsoever to Komal Prasad. The defence theory is that when Chhotey Lal fell down or receiving the head injury, then Hon 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 Hon Lal and Narain and the lathi blow which was aimed at Narain accidentally landed on the head of Komal 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 lathi blow on the person of Chhotey Lal who fell down in the angan. Narain aimed another lathi blow and then the accused Hon Lal rushed for the defence of his father. He was with a lathi and wanted to assault Narain (P. W. 1 ). Suddenly, Komal Prasad came in between and the lathi blow landed on his head. Komal 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 out to discredit his testimony except the obvious fact that he is a defence witness. It is not possible to discard the testimony of a witness simply because he appears for the defence. The courts have to give cogent reasons for discarding the sworn testimony of a witness irrespective 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, to with for pacifying both the parties. 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, to with 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 the evidence on the record is that when Chhotey Lal fell down on receiving the head injury, then his son Hon Lal aimed the lathi blow in defence of his father. It was aimed at the assailant Narain but suddenly Komal Prasad came in between the two and the lathi bow, which was meant for Narain, landed on the head of Komal Prasad causing the 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. 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, Hon 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 lathi blow at Narain, but suddenly Komal Prasad came in between and received the injury. Hon Lal has not caused the injury to Komal 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 Hon Lal which is essence of criminality in those rash and negligent acts which and made punishable under the penal Code. The evidence on the record does not disclose the absence of such proper care and caution on the part of the accused Hon Lal which is essence of criminality in those rash and negligent acts which and 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 selfdefence. 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 Hon Lal is not guilty of having committed any offence. Section 30 of the I. P. C. comes to his aid. The learned Sessions Judge has wrongly convicted and sentenced him. The appeals shall, therefore, be allowed. ( 8 ) THE appeal is allowed. The conviction and sentence passed against accused appellant Hon is set aside. He is acquitted of the charge. He is on bail. His bail bonds stand discharged. He need not surrender. Appeal allowed. .