FAIZAN UDDIN, J. ( 1 ) IN this Criminal Appeal, 2 appellants, Saheb Singh and Amolsingh have challenged their conviction under Ss. 302 and 326 read with S. 34 of the Penal Code for which each one of them has been sentenced to undergo imprisonment for life and rigorous imprisonment for a period of 3 years, respectively by the Additional Sessions Judge, Bhind, in Sessions Trial No. 141 of 1947 decided on 5th July, 1975. ( 2 ) THE prosecution case may briefly be stated thus. Deceased Chhotesingh was in cultivating possession of the agricultural land bearing survey number 724 in village Bagulari since long before the incident, which took place on 18th July, 1974 at about 8. 30 a. m. On the western side of Khasra number 724 the adjoining land bearing Khasra number 1114 is said to have been purchased by appellant Saheb Singh from one Jaisiram and other, about a couple of months before the incident. There was a Babul tree on the Medh between the aforesaid two survey numbers. The deceased Chhotesingh claimed that the Babul tree was on his survey number 724 and belonged to him while the appellant Saheb Singh claimed that the Babul tree existed in his field survey number 1114 and belonged to him. The house of deceased Chhote Singh and those of the appellants and other acquitted accused persons are situated close by in the same village. In the previous evening of the day when the incident occurred the deceased Chhotesingh told to his sons and nephews outside his house that next morning they would cut the Babul tree. The appellant Saheb Singh overheard the declaration of deceased Chhote Singh and, therefore, refuted the claim of the deceased Chhotesingh and asserted his own claim over the Babul tree. But deceased Chhotesingh re-emphasised his claim over the tree and expressed his determination to cut it. Next day, that is, on 18th July, 1974 deceased Chhotesingh armed with his licensed gun, a belt of cartridges hung around his shoulder and accompanied with his sons and nephews namely, Vishwanath Singh (P. W. 9) who was having a spade, Rakshapal Singh (P. W. 11), Jagdish, Shishupal Singh (P. W. 7) and Rajendra Singh (P. W. 10) reached the field where the Babul tree was standing. Fatehsingh (P. W. 1) real brother of deceased Chhote Singh was also there grazing his camel nearby. Fatehsingh (P. W. 1) real brother of deceased Chhote Singh was also there grazing his camel nearby. ( 3 ) THE prosecution case further was that at the same point of time, the acquitted accused Mansingh armed with a lathi, acquitted accused Chhutalla and Budhsingh armed with Farsas, appellant Saheb Singh armed with his 12 bore single barrel licensed gun and appellant Amolsingh armed with 12 bore country made pistol, also arrived there in the field where the Babul tree was standing. After the rival parties reached the place of occurrence, Vishwanath (P. W. 9) the son of the deceased was first to start digging the earth at the root of the Babul tree, whereupon appellant Saheb Singh protested. Both the parties again asserted their respective claims over the tree and their determination to cut it. At this stage, appellant Amolsingh fired his 12 bore country made pistol at Shishupal Singh (P. W. 7) who sustained injuries in his legs by the gun shot. Appellant Saheb Singh also fired at deceased Chhotesingh who sustained gun shot injury in his chest. Deceased Chhotesingh fell down and died on the spot. The 3 acquitted accused persons then assaulted Rakshapal Singh (P. W. 11) and Wishwanath (P. W. 9) with their lathis and Farsas causing injuries on their persons and then all the accused escaped in the Jungle. Fatehsingh (P. W. 1) brother of the deceased who had seen the entire incident went to the police station Pawai situated at a distance of about 7 miles where he lodged the first information report (Ex. P/1) the same day at about 11. 30 a. m. ( 4 ) INVESTIGATING Officer Ansar Hussain (P. W. 13) reached same day at the place of incident in village Bagulari and as per seizure memo Ex. P/4) seized 2 lathis, 2 towels and one Pancha said to be belonging to the accused persons. He also seized 9 empty 12 bore cartridges from the place of incident as per seizure memo Ex. P/6. ( 5 ) DR. Fatehchand Bansal (P. W. 5) performed an autopsy over the dead body of the deceased in Civil Hospital, Bhind on 19th July, 1974 at about 8. He also seized 9 empty 12 bore cartridges from the place of incident as per seizure memo Ex. P/6. ( 5 ) DR. Fatehchand Bansal (P. W. 5) performed an autopsy over the dead body of the deceased in Civil Hospital, Bhind on 19th July, 1974 at about 8. 30 a. m. and as per his post-mortem report Ex-P/b found a gun shot entry wound 1/2" X 1 on the back right side 3'' below the scapula and a gunshot exit wound on the right side of the chest 3" X 2" X 1" medial to the niple which according to Doctor indicated that there was a communication from the wound of entrance to the wound of exit. No charring marks were found. Dr. Bansal also found that 4th right rib was fractured and there was injury to the lung pleura muscles and rib. Two corks with cap of bullet and one small metal piece were also found in the wound but no bullet was found inside the body. In the opinion of the Doctor, the duration of death was between 24 to 26 hours. In his opinion these injuries were ante-mortem and the death was homicidal. According to Dr. Bansal (P. W. 5) the injury was sufficient in the ordinary course of nature to cause death and the death resulted due to hemorrhage and shock due to injury in the vital part of the body, due to gun shot. ( 6 ) DR. Bansal (P. W. 5) also examined Vishwanath (P. W. 9) on 19th July 1974 and as per his report (Ex. P/17) found one abrasion 1 X 1/5" on the right side middle 1/3"rd arm interiorly from which blood was oozing out and two lacerated wounds on the skull, one on the right parietal bone and another on the right temporal bone. All these injuries were simple in nature. He also examined Shishupalsingh (P. W. 7) the same day and as per his injury report (Ex. P. 15) found 8 lacerated wounds on the different parts of the body caused by gun shot. Radiologist Dr. Asthana (P. W. 4) took X-ray of the right and left legs of Shishupalsingh (P. W. 7) and found comminuted fracture of shaft of left tibia but there was no bony injury in the right leg. Rakshapal Singh (P. W. 11) was also medically examined by Dr. Radiologist Dr. Asthana (P. W. 4) took X-ray of the right and left legs of Shishupalsingh (P. W. 7) and found comminuted fracture of shaft of left tibia but there was no bony injury in the right leg. Rakshapal Singh (P. W. 11) was also medically examined by Dr. Bansal (P. W. 5) and as per his report Ex. P/16 found one lacerated wound on the middle of skull on parietal bone 1" X " and a bruise on the left side back. ( 7 ) ON 12th July, 1974 Sub-Inspector Pawai addressed a letter (Ex. P/20) to the Civil Surgeon, Civil Hospital, Bhind seeking his opinion as to the entry-exit wound found on the person of the deceased Chhotesingh. Civil Surgeon Dr. Shivaji Rao Rane (P. W. 6) on examination of the cartridge cross-belt and report of Dr. Bansal (P. W. 5) gave his opinion that the front injury on the chest of the deceased was the entry wound for the reasons given in this report (Ex. P. 20 ). ( 8 ) ACCORDING to the report (Ex. P/29) of the Ballistic Expert, Shri K. L. Patel (P. W. 14), 12 bore single barrel gun seized from the appellant Saheb Singh was in working order and the barrel of the gun showed signs of discharge but in his opinion the 3 empty cartridges were not fired from the gun seized from appellant Saheb Singh. The Ballistic Expert, Shri Patel (P. W. 14) agreeing with the report of the Civil Surgeon was also of the opinion that the front injury on the chest of the deceased Chhotesingh should be the entry wound and the injury on the back should be exit wound. ( 9 ) ON 12th Aug. 1974 on being produced by Rakshapal Singh (P. W. 11) one of the sons of the deceased, one cartridge-belt which was around the shoulder of the deceased at the time of the incident was seized as per seizure memo Ex. P/11. ( 10 ) AT the trial the two appellants as well as the 3 acquitted accused abjured their guilt and pleaded false implication. None of them, however adduced any evidence in defence. P/11. ( 10 ) AT the trial the two appellants as well as the 3 acquitted accused abjured their guilt and pleaded false implication. None of them, however adduced any evidence in defence. ( 11 ) ON evaluation of the prosecution evidence on record learned trial Judge took the view that the presence and participation of the 3 acquitted accused namely, Budhsingh, Mansingh and Chhutalla in the incident in question was not proved beyond doubt and as such giving benefit of doubt acquitted them. But as regards, the present two appellants, the learned trial Judge took the view that they are responsible for the death of Chhotesingh as well as for the injuries caused to Shishupal Singh, Vishwanath Singh and Rakshapalsingh and therefore, convicted the appellant Sahebsingh under Ss. 302 and 326 read with S. 34 and Amolsingh under S. 302 read with Ss. 34 and 326 of the Penal Code and sentenced them accordingly against which this appeal has been directed. ( 12 ) LEARNED counsel for the appellant first contended that the trial Court has disbelieved the evidence of the prosecution eye-witnesses as regards the participation of the 3 acquitted accused, namely, Budhsingh, Mansingh and Chhutalla in the incident and acquitted them all but on the basis of the same evidence, found the two appellants guilty of the offence they were charged with. He, therefore, submitted that the evidence which was found unreliable as regards the acquitted accused persons, should have been held equally unreliable as regards the two appellants and, therefore, should not have convicted them on the basis of the unreliable evidence. In our opinion there is no merit in this contention. It is now well settled that even though no absolute reliance could be placed on the evidence of the prosecution witnesses with regard to some of the accused persons, the court can still accept the evidence of those witnesses with regard to other accused persons and hold them guilty. See Ahmed Suleman v. State of Gujarat AIR 1971 SC 991 : (1971 Cri LJ 810 ). See Ahmed Suleman v. State of Gujarat AIR 1971 SC 991 : (1971 Cri LJ 810 ). ( 13 ) IN the present case, the acquitted accused persons were alleged to be armed with lathi and Farsas; but the medical evidence did not disclose any injury to any persons caused by lathi or Farsa and, therefore, giving benefit of doubt the trial Court acquitted Budhsingh, Mansingh and Chhutalla, but as regards the complicity of these two appellants, it is fully borne out and established from the evidence of the eye-witnesses Fatehsingh (P. W. 1) Shishupalsingh (P. W. 7) Vishwanath Singh (P. W. 9) Rajendra Singh (P. W. 10) and Rakshapalsingh (P. W. 11) all of whom with one consistent voice deposed that the appellant Sahebsingh was armed with a gun and the appellant Amolsingh was armed with a country made pistol and appellant Amolsingh first fired the Kutta at Shishupal Singh (P. W. 7) causing injuries in both of his legs and then Sahebsingh fired at the deceased Chhotesingh causing gun shot injury in his chest. The medical evidence of Dr. Bansal (P. W. 5) shows that injuries found on the legs of Shishupalsingh (P. W. 7) were gun shot injuries and the injury on the chest of deceased Chhotesingh was also a gun shot injury which was sufficient in the ordinary course of nature to cause death of Chhote Singh. Dr. Bansal also deposed that the injuries were ante-mortem caused by gun shot. This part of the evidence is wholly reliable and no other view on the basis of the said evidence is possible except the one that the two appellants were responsible for the same. ( 14 ) LEARNED counsel for the appellants next submitted that all the above named eyewitnesses are close relatives being the real brother of the deceased and his sons and nephews, and therefore without corroboration from independent source their evidence alone should not form the basis in convicting the accused. Here again we do not find substance in the submission. It may be pointed out that there is no absolute rule that the evidence of relatives or partisan witnesses should not be believed at all. Simply because the witnesses are relatives of the deceased, their evidence cannot be discarded on that ground alone, but should be received with great care, caution and after due scrutiny. It may be pointed out that there is no absolute rule that the evidence of relatives or partisan witnesses should not be believed at all. Simply because the witnesses are relatives of the deceased, their evidence cannot be discarded on that ground alone, but should be received with great care, caution and after due scrutiny. The evidence shows that the incident took place in respect of the dispute over a Babul tree standing on the Medh of the respective fields of the rival parties and both the contending parties had reached the place of incident to cut the tree and, therefore, the presence of close relatives was quite natural. In Bhupendra Singh v. State of Punjab AIR 1968 SC 1438 their Lordships observed that the fact that the prosecution witnesses in a murder trial were the sons and daughters of the victim, does not detract from the value to be attached to their evidence because naturally enough they are interested in seeing that the real murderer of their father is convicted of the offence and they could not be expected to adopt a course by which some innocent person would be substituted for the person really guilty of the murder. In fact their feelings would be strongest against the real culprit. As such their evidence cannot be discarded on the ground of their relation with the deceased. Similar view was taken in Barati v. State of U. P. AIR 1974 SC 839 Sarwan. Singh v. State of Punjab AIR 1976 SC 2394 and Mst. Dalbir Kaur v. State of Punjab AIR 1977 SC 472 . We have already discussed that the evidence of all the eye-witnesses who are close relatives of the deceased is fully consistent with each other in so far as the part played by the two appellants is concerned. ( 15 ) SHRI P. L. Dubey, learned counsel for the appellants next submitted that the Babul tree standing on the Medh situated between the fields of the respective parties belonged to the appellant Saheb Singh and, therefore, he had every right to protect the same as it was forcibly being cut by the complainant party. As against this, the counsel for the State, argued that the tree belonged to the deceased and not to the appellant Sahebsingh. As against this, the counsel for the State, argued that the tree belonged to the deceased and not to the appellant Sahebsingh. The trial Court has taken the view that the tree belonged to the deceased but on perusal of the evidence on record, we find that there is no convincing evidence to establish the possession of either party in respect of the tree. Ex. P/22 is the Khasra copy for survey No. 724 the land in possession of the deceased. Under the last column 20, which is meant for the amended entry, there is a mention of Babul, but this column is not the column for possession. The adjoining land bearing survey number 1113, 1114 and 1118 is in possession of the appellant sahebsingh indicated in Khasra entry (Ex. P/23 ). Ex. P/24 is the certificate of the Patwari according to which, Babul tree in dispute neither belonged to the deceased Chhotesingh nor to appellant Sahebsingh. The statement of Patwari Chunnilal (P. W. 6) is neither here not there. He deposed that Babul tree stands in survey No. 724 but according to the Government records, the Babul tree neither belonged to the deceased Chhotesingh nor to appellant Sahebsingh. In cross-examination he deposed that Babul tree was on the Medh between survey number 724 and 1114 and that it was more on the side of survey number 1114, the land in possession of Sahebsingh the appellant. Thus from this evidence it cannot be conclusively held whether the tree actually existed in survey number 724 or in survey number 1114. It can also not be definitely said that the Babul tree was in possession of the deceased or in possession of appellant Sahebsingh. In this view of the matter, we are of the view that the learned trial Judge was right in holding that the Babul was in possession of the deceased and that being so the deceased should not have insisted upon cutting the tree, in view of the bona fide claim of appellant Sahebsingh unless the dispute was determined by the competent authority. ( 16 ) SHRI P. L. Dubey, learned counsel for the appellants tried to assail the appellants' conviction on various other grounds, which, in our opinion, have no substance and, therefore, it is not necessary for us to go into those grounds as we feel inclined to allow the appeal partly on the ground that the appellants had fired the gun in exercise of their right of private defence but had exceeded that right. ( 17 ) AS regards the plea of self defence it is now well settled that even if the accused had not-pleaded self defence, it is open to the Court to consider such plea if the same arises from the material on record. In Rajnikant v. State of Maharashtra 1972 MPLJ 585 their Lordships of the Supreme Court took the view that even where the accused does not raise the plea of self defence, he can without calling defence evidence in support of the plea of self defence rely on the evidence led by the prosecution and the material on record for showing that he had acted in self defence. It is further observed that in such cases the real question which the Court is called upon to decide, is whether on proper appraisal of the evidence and the relevant material on record, it can be said that the accused has been proved guilty beyond reasonable doubt because the court cannot justifiably ignore the material which establishes the right of private defence merely because the accused has, for some reasons or the other, omitted to take such plea. ( 18 ) IT may be recalled that in the evening previous to the date of incident the deceased Chhotesingh had declared that next morning he shall cut the tree, which was overheard by the appellant Sahebsingh who resides nearby and protested against the same, reiterating his own right. It has been stated by all the prosecution eye-witnesses that when the deceased Chhotesingh had gone to the place of incident to get the tree cut along with his sons and nephews, Chhotesingh was armed with a 12 bore licensed gun and a belt of cartridges around his shoulder. It has been stated by all the prosecution eye-witnesses that when the deceased Chhotesingh had gone to the place of incident to get the tree cut along with his sons and nephews, Chhotesingh was armed with a 12 bore licensed gun and a belt of cartridges around his shoulder. The evidence of these prosecution witnesses further goes to show that when the deceased Chhotesingh was hit on his chest by the bullet of the appellant Sahebsingh and fell dead on the ground, his son Rakshapal Singh (P. W. 11) immediately removed the belt of cartridges from his neck and rushed back to his house in the village along with the cartridges belt and gun of the deceased. He left the cartridges belt and the gun at the house and again, came back to the scene of the incident. These facts are admitted even by Fateh Singh (P. W. 1) the real brother of the deceased who had lodged the first information report same day at about 11. 30 a. m. but he did not disclose to the police in his report that the deceased was wearing a cartridge-belt around his shoulder and was armed with a 12 bore gun at the time of the incident. This fact was not disclosed by any of the prosecution witnesses when the police recorded their case diary statements. This fact, however, appears to have been disclosed for the first time on 12th Aug. , 1974 when the post-mortem report and other expert opinion had come out indicating that some metallic particles and some other leather particles were found lodged in the chest wound of the deceased Chhotesingh. Even thereafter the police seized cartridge-belt belonging to the deceased on 12-8-1974 by seizure memo Ex. P/11 but did not seize the gun of the deceased which he was having at the time of the occurrence of the incident. It may further be pointed out here that the police had seized 3 empty 12 bore cartridges from the place of the incident as said earlier which, according to the opinion of the Ballistic Expert were not fired from the gun of the appellant Sahebsingh which was seized and examined. It thus remained a mystery as to by which gun the said empties were fired. It thus remained a mystery as to by which gun the said empties were fired. ( 19 ) IN fact and in all fairness to place correct fact before the Court, it was necessary for the prosecution to seize and examine the gun of the deceased to see whether the said empties were fired from that gun belonging to the deceased but it was not done so for the reasons best known to the prosecution. These facts and the circumstances narrated above give rise to a serious doubt in the prosecution story as to the circumstance in which the appellants had fired. The contention of the learned counsel for the appellants is that while resisting their right over the forcible attempt on the part of the complainant party to cut the tree, the deceased attempted to use his gun and apprehending danger to their lives the appellants fired in exercise of their right of private defence of person and property. In support of this submission learned counsel for the appellants brought to our notice the statement of Fateh Singh (P. W. 1) made in the first information report (Ex. P/1) which is the earliest version in the point of time. A perusal of the first information report (Ex. P/1) will go to show that Fatehsingh (P. W. 1) who made the report did say that : -this statement in the first information report does indicate that deceased Chhotesingh attempted to rush and as he himself was armed with a gun and a cartridge-belt then in all probabilities he must have rushed with the gun. In case of Jamuna Chaudhary v. State of Bihar AIR 1974 SC 1822 their Lordships observed that where neither the prosecution nor the defence come out with the whole and unvarnished truth to enable the Court to judge where the rights and wrongs of the set of incidents lay or how one or more incidents took place in which so many persons including the deceased and one accused person were injured, Court can only try to guess or conjecture to decipher the truth if possible and this may be done within limits to determine whether any reasonable doubt emerges on any point under consideration from the proved facts and circumstances of the case. ( 20 ) IN the present case from the facts and circumstances narrated above regarding the concealment of a very material fact that the deceased himself was armed with a gun and having a belt of cartridges which was removed and taken away from the scene; the gun of the deceased was not seized; even though the 3 empties were reported not to have been fired from the gun seized from the appellant, a reasonable doubt emerges and it appears that in all probabilities the deceased must have attempted to use his gun and apprehending danger to their lives the appellant Sahebsingh fired, at him. In Deonarayan v. State of U. P. AIR 1973 SC 473 it has been observed that to say that a person could only claim the right to use force after he has sustained serious injury by an aggressive wrongful assault, is complete misunderstanding of the law embodied in S. 102 of Penal Code. The right of private defence commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit an offence although the offence may not have been committed. See also Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660 . ( 21 ) IN the present case as stated earlier it appears that in all probabilities the deceased had attempted or posed a threat to the appellant Sahebsingh and, therefore, appellant Sahebsingh fired at him in self defence. It is needless to emphasise that there are two important factors in every criminal trial which weigh heavily in favour of the accused one being that the accused is entitled to benefit of every reasonable doubt and other being that when an accused offers a reasonable explanation of his conduct then even though he cannot prove his assertion they should be accepted unless the circumstances indicated that they are false. In facts and circumstances discussed above, we find that the explanation of the appellant Sahebsingh that he fired at the deceased in exercise of his right of self defence because he apprehended imminent danger from the deceased on account of the threat given by him which to our mind, does not appear to be false. In facts and circumstances discussed above, we find that the explanation of the appellant Sahebsingh that he fired at the deceased in exercise of his right of self defence because he apprehended imminent danger from the deceased on account of the threat given by him which to our mind, does not appear to be false. We, therefore, accept the same; but while accepting the plea of self defence we are of the view that the appellant Sahebsingh definitely exceeded his right by firing at the deceased Chhotesingh at his chest. There was no necessity for the appellant to inflict gun shot injury on the chest which is a very vital part of the body. The deceased could have been incapacitated in using his own gun by firing either in the arms or in the lower part of the body but the appellant deliberately fired on the vital part like chest. We are therefore, of the opinion that the appellant Sahebsingh certainly exceeded the right of private defence of person and, therefore, he deserves conviction under S. 304, Part II of the Penal Code. The appellants were arrested on 9-8-1974 and remained in custody during their conviction. The appellants were released on bail by this court on 17-12-1980. They had thus already suffered imprisonment for more than 6 years which in our opinion, is sufficient punishment for the offence punishable under S. 304, Part II and S. 326 read with S. 34 of the Penal Code. ( 22 ) IN the result the appeal partly succeeds and is hereby allowed. The conviction of the appellant Sahebsingh under S. 302 of the Penal Code with sentence thereunder and the conviction of appellant Amolsingh under S. 302 read with S. 34 of the Penal Code with sentence thereunder are set aside. Instead appellant Sahebsingh is convicted under S. 304 Part II of the Penal Code and appellant Amol Singh is convicted under S. 304 Part II read with S. 34 of the Penal Code and the sentences of both the appellants are restricted to the period already undergone by each one of them on this count. The conviction of appellant Sahebsingh under S. 326 read with S. 34 of the Penal Code with sentence thereunder and that of Amolsingh under S. 326 of the Penal Code with sentence thereunder is maintained which they have already undergone, being concurrent. Order accordingly. .