SI. JAFRI, J. ( 1 ) KRISHNA Kumar preferred this appeal against his conviction under section 304 I. P. C. and sentence of 7 years R. L and a fine of Rs. 1909/- recorded by Sri. A. B. Srivastava, 5th Additional Sessions Judge, Allahabad by his judgment and order dated 9-2-1979 in Sessions Trial No. 85 of 1978. ( 2 ) KRISHNA Kumar was charged under section 302 I. P. C. for the murder of Ambika Prasad. However, the trial court while acquitting the appellant on the charge of murder, convicted and sentenced him under section. 304 I. P. C. as enumerated, above. ( 3 ) IN this case, the parties are residents of village Chak Sadhopur, Police Station Mau Aima, District, Allahabad and they are collaterals. Vishnu Dutta, Devi Din and Shivambaran were real brothers. Ram Din was married to Smt. Laxmia and he died issueless. Jagmohan, the grand son of Vishnu Dutta also died issue less in May 1977 and he had left behind, 18 Bighas of land. Devi Din had two sons namely, Ram Narain and Ganesh. The complainant Nand Lal is the son of Ram Narain. Krishna Kumar appellant, Ram Lochan and Brahma Lochan are the sons of Ganesh. The fourth brother Shivambaran had two sons, namely, Sit a Ram and Sheetla Din. Ambika Prasad deceased, was the grand son of Sit a Ram. After the death of Jagmohan who had died issueless in the month of May 1977, the descendants of Devi Din and Shivambaran were entered in the - revenue papers as the heirs of Jagmohan. It is alleged that Krishna Kumar did not relish the aforesaid inheritance of the property of Jagmohan. He claimed that his brother Ram Lochan was adopted by Jagmoban during his life time. Ram Lochan had filed a mutation case on the basis of an alleged adoption deed and the case was pending in the court of. Tahsildar, Soraon prior to the occurrence of the present case. Krishna Kumar was doing pairvi on behalf of his brother in the said mutation case. It is said that Ambika Prasad deceased was doing pairvi on behalf of himself and his other collaterals in the aforesaid mutation case and as such Krishna Kumar appellant was displeased with Ambika Prasad. ( 4 ) IT is alleged by the prosecution that at about 7 A. M. on 15. It is said that Ambika Prasad deceased was doing pairvi on behalf of himself and his other collaterals in the aforesaid mutation case and as such Krishna Kumar appellant was displeased with Ambika Prasad. ( 4 ) IT is alleged by the prosecution that at about 7 A. M. on 15. 8-1977, complainant Nand Lal P. W. 1, Pachai P. W. 2, Ram Kishore P. W. 4, Hira Lal and Ram Din were on their way to the house of Nata Halwai of village Rampur, alias, Daulatpur from their village as the wife of Nata Halwai had died the preceding night. As soon as these persons came near the house of appellant Krishna Kumar, Krishna Kumar abused Ambika Prasad by saying that Sale kal tumhari bhains mera kathal ka perh ko kha gai aj tumko jan se mar doonga. Ambika Prasad, on bearing these utterances from Krishna Kumar with folded hands went over to the Chabutra of Krishna Kumar and asked him to refrain from abusing him and instead to take the price of his Jack Tree from him whereupon, Krishna Kumar picked out his gun from the adjoining room and fired at Ambika Prasad who sustained fire arm injury on his right Jaw and neck. Ambika Prasad stumbled down on the Chabutra and died instantaneously. On being challenged by Nand Lal and others, the appellant Krishna Kumar retreated inside his house and bolted the door from inside. Krishna Kumar again fired few shots out-side through his window from inside his house. ( 5 ) AFTER the occurrence, Nand Lal went to the Police Station Mau Aima and handed over his written report at 9. 30 A. M. to Tej Narain Singh, Head constable who prepared the Chik report and also registered a case in the General diary of the Police Station under section 302 I. P. C. against the appellant. The Station Officer Ram Naumi Yadav P. W. 7 who was present at the Police Station took up the investigation of the case and recorded the statement of the complainant at the Police Station and reached the place of occurrence at 12. 10 P. M. the same day. The Sub-Inspector got the door of the house of the accused opened by the accused and arrested him with the assistance of the accompanying police force after using some force, causing some injuries on his person. He also recovered gun Ex. 10 P. M. the same day. The Sub-Inspector got the door of the house of the accused opened by the accused and arrested him with the assistance of the accompanying police force after using some force, causing some injuries on his person. He also recovered gun Ex. 4 belonging to accused Krishna Kumar from inside the room and from the personal search of the accused, also recovered two live and two empty cartridges Exts. 5 and 6. The articles were sealed on the spot by the Sub-Inspector and memo Ex. Ka 6 was prepared in the presence of the witnesses Vijai Bahadur and Sheetla Bux. ( 6 ) THE dead body of Ambika Prasad was found by the Station Officer lying on the Chabutra of Krishna Kumar accused. The Station Officer got the inquest report Ex. Ka 7 prepared by Subinspector Chandra Shekhar Sharma on the dead body of Ambika Prasad deceased on his dictation. The dead body of the deceased was sent to the mortuary through constables Abdul Latif and Fateh Bahadur P. W. 5 where the Autopsy on the dead body was conducted on 16-8-1977 at 2. 30 P. M. The Station Officer found near the dead body the blood stained and unstained earth Exts. 7 and 8 and disc and wads Exts. 9 and 10. He also found on the Chabutra of the accused one empty cartridge Ex. 11. The Sub-Inspector Chandra Shekhar Sharma also prepared memos Exts. Ka 11, Ka 12 and Ka 14 regarding the aforesaid recoveries on the dictation of the Investigating Officer, The Investigating Officer also recorded the statements of witnesses and prepared site-plan Ex. Ka 15 of the place of occurrence. 1 he recovered articles along with the appellant were brought to the Police Station the same day by the Sub-Inspector Chandra Shekhar Sharma and the appellant was put inside the Lock-up. The recovered articles were kept secured in the Malkhana of the Police Station. ( 7 ) DR. P. L. Nigam conducted autopsy on the dead body of the deceased Ambika Prasad and he had found the following anti-mortem injury on his person: Gun shot lacerated wound 5 X 3, 1/2 X mouth cavity deep placed horizontally starting from middle of chin and going backwards and downwards up to lateral side on right of neck, right side body of mandiable fractured into multiple pieces, Trachea ruptured. Hyoid bone fractured Blood vessels on right side of neck all ruptured, many teeth on right lower jaw are broken and missing. ( 8 ) ON internal examination, right mandible was found to be fractured in multiple pieces. Hyoid bone was also fractured. Four small pellets on right side of neck wall around injury No. 1 were found. According to the opinion of the doctor, the death was due to shock and hemorrhage as a result of anti-mortem injury No. 1. ( 9 ) THE Investigating Officer submitted charge-sheet Ex. Ka 16 on 26-8-1977 against the appellant. ( 10 ) AFTER submitting the charge-sheet, the Investigating Officer made a report on 1-10-77 for sending the blood stained and unstained earth and blood-stained wads and disc for examination by Chemical Examiner and, as such, the articles were sent for examination. The Investigating Officer also sent the gun Ex. 4 of the appellant and empty cartridge Ex. 11 for examination by the Ballastic Expert at Lucknow. The reports of Chemical Examiner and that of Serologist Ex. Ka 18 and Ka 19 respectively were received and according to the reports, the blood stained earth and the wads were found to contain blood and on the wads, human blood was found. Tae report Ex. Ka 20 of toe Ballastic Expert dated 10-11-1977, disclosed that empty Cartridge Ex. 11 was fired by gun Ex. 4. ( 11 ) THE appellant examined Dr. S. C. Srivastava, Medical Officer, Jail Hospital Central Jail Naini Allahabad in his defence in order to prove his injuries which according to him were caused in the occurrence. Dr. S. C. Srivastava, examined the injuries on the person of the accused on 17-8-1977 at 12 P. M. and proved the injury report Ex. Kha 3. The following injuries were found on the person of the accused Krishna Kumar on medical examination. 1. Lacerated wound 1 cm X 2/10 cm x scalp deep over skull about 12 cms. above left external ear. 2. Contusion 5 cm X 1 cm on outer surface of middle of right arms. 3. Lacerated wound around lower and medial margin of nail of right finger nail averted. 4. Abrasion 2 cm X 1 cm over posterior surface of left elbow. 5. Contusion 3 cm X 1 cm over lateral surface of left forearm about 10 cms lower left eblow. 6. 3. Lacerated wound around lower and medial margin of nail of right finger nail averted. 4. Abrasion 2 cm X 1 cm over posterior surface of left elbow. 5. Contusion 3 cm X 1 cm over lateral surface of left forearm about 10 cms lower left eblow. 6. Contusion 8 cm X 2 cm over outer surface of left thigh in about middle. 7. Abrasion 1 cm X 1 cm over anterior surface of left leg about 12 cms below left knee. ( 12 ) ACCORDING to the opinion of tile Doctor, the injuries were simple caused by blunt object. The duration of the injuries was about 2 days. ( 13 ) ACCUSED pleaded not guilty to the charge, and stated that the deceased Ambika Prasad, Nand Lal complainant, Ram Kishore and Rira Lal were inimical to him and to his family members by reason of a dispute ever the property left behind by Jagmohan and Mst. Ram Dulari. He deposed that Jagmohan had adopted Ram Lochan, one of the brothers of the accused, in the year 1940 and he had bequeathed all his property to him whereupon his brother Ram Lochan had filed a suit for mutation of his name over the property after the death of Jagmohan. His another brother Brahm Lochan had also filed a suit for mutation in the Tahsil on 12-8-1977 regarding the property of Smt. Ram Dulari of which she had executed a will in favour of Brahm Lochan. It was also stated by him that the said Smt. Ram Dulari was sister of Ambika Prasad by Pattidari (relationship ). He contended that on account of the aforesaid property disputes, the deceased Ambika Prasad, Nand Lal complainant, Ram Kripal, Tulsi Ram, Shiv Shankar etc. became annoyed with him and his family members and as a consequence of the aforesaid enmity, the deceased Ambika Prasad along with Nand Lal, Ram Kripal, Tulsi Ram, Shiv Shankar, Deonath, and Baijnath had raided his house at about 7. 30 p. m. on 15-8-1977 and out of them Ambika Prasad and Nandlal were armed with pistols, Ram Kripal and Tutsi Ram had Gandasas with them, Shiv Shankar was armed with Ballam and Deonath and Baijnath had Lathies with them while he was standing outside the door of his house engaged in talk with two of his patients. 30 p. m. on 15-8-1977 and out of them Ambika Prasad and Nandlal were armed with pistols, Ram Kripal and Tutsi Ram had Gandasas with them, Shiv Shankar was armed with Ballam and Deonath and Baijnath had Lathies with them while he was standing outside the door of his house engaged in talk with two of his patients. He was, the shot at by Arnbika Prasad deceased but the shot missed him. Deonath and Baijnath thereupon, assaulted him with Lathies causing injuries on his head and on other parts of his body. He further deposed that apprehending his life in danger, his brothers wife brought his gun from inside the house and handed over the same to him and in order to save his life, he had fired one shot with his gun which hit Ambika Prasad who had fallen down and died instantaneously. He further stated that after the occurrence, he himself went to the police station Mau Aima with his gun and an empty cartridge and three live eallridges. He also added that he had narrated the occurrence to the Station Officer and requested him to register his First Information Report but he was locked in the Hawalat by the Station Officer at the instance of Nand Lal who had also reached the Police Station shortly after him. It was also stated by him that a report of the occurrence wall also lodged at Police Station Colonel Ganj by his brother Brahm Lochan on 15-8-1977. ( 14 ) THE trial court upon consideration of the entire evidence on record, disbelieved the prosecution version of the occurrence and also that of the defence. The learned Sessions Judge convicted the appellant under section 304-I. P. C. and sentenced him to undergo R. I. for 10 years and a fine of Rs. 1000/- as stated above. ( 15 ) IN support of its case, the prosecution examined as many as 9 witnesses and out of them Nand Lal complainant P. W. 1, Pachai P. W. 2 and Ram Kishore P. W. 4 were examined as eye-witnesses of the occurrence. ( 16 ) NAND Lal P. W. 1 dwelt in detail in narrating the prosecution case. He stated that he himself, Jagmohan, Ram Din, Ambika Prasad deceased and Krishna Kumar appellant descend from a common ancestor. ( 16 ) NAND Lal P. W. 1 dwelt in detail in narrating the prosecution case. He stated that he himself, Jagmohan, Ram Din, Ambika Prasad deceased and Krishna Kumar appellant descend from a common ancestor. He further deposed that after the death of Jagmohan, his 18 bighas of land was inherited by all his colletrals including himself, Ram Kishore, Ambika Prasad deceased and Krishna Kumar appellant as Jagmohan had died issueless. He further deposed that Krishna Kumar appellant did not relish the aforesaid succession and a case for mutation was tiled by Ram Lochan, brother of Krishna Kumar appellant in the Court of Tahsildar Soraon of the strength of a fictitious deed of adoption alleged to have been executed by Jagmohan in favour of Ram Lochan and in that case, Krishna Kumar was doing pairvi on behalf of Ram Lochan. Ambika Prasad (Deceased) was doing pairvi in the said case on behalf of opposite parties i. e. for himself, Nand Lal, Ram Kripal and others and as a result of which Krishna Kumar was displeased with Ambika Prasad (deceased ). ( 17 ) NAND Lal further deposed that at about 7 A. M. on 15-8-1977, he along with Ambika Prasad, Pachai P. W. 2, Ram Din, Ram Kishore P. W. 4 and Hira Lal were proceeding from his house to the house of Nata Halwai in village Daulatpur whose wife had passed away the preceding night and while they all reached in front of the house of Krishna Kumar, Krishna Kumar appellant abused Ambika Prasad alleging that his she buffalo had eaten away his Jack tree and that he would kill him. There upon, Ambika Prasad deceased ascended the Chabutra of Krishna Kumar and with folded hands, said that the appellant may take the price of his Jack tree instead of abusing him. Krishna Kumar, then, picked out his gun kept behind the door of his room and fired at Ambika Prasad. On sustaining gun shot injury Ambika Prasad fell down and, died instantaneously. On being challenged by the witnesses, the appellant Krishna Kumar retreated hastily inside his house and bolted the door from inside. The appellant fired two or three shots by means of his gun through the window in the direction of the witnesses from inside his house. On sustaining gun shot injury Ambika Prasad fell down and, died instantaneously. On being challenged by the witnesses, the appellant Krishna Kumar retreated hastily inside his house and bolted the door from inside. The appellant fired two or three shots by means of his gun through the window in the direction of the witnesses from inside his house. After the occurrence, a large number of village people collected on the spot and encircled the house of Krishna Kumar from an sides. Thereafter, be went to the house of Ambika Prasad and gave the information about the happening. He, then, went to his house and. prepared a report Ex. Ka 1 of the occurrence, and lodged the said report at the Police Station. He further stated that at the time of occurrence he, Ambika Prasad deceased and his companions were empty handed. ( 18 ) IN cross-examination, he admitted that Krishna Kumar appellant did not receive any injury and none amongst the people assembled at the spot and assaulted him in the course of occurrence. He further admitted that Ram Kishore P. W. 4 is his uncles uncle (Dada) and the witness Hira Ram is the real uncle of Ram Kishore. He also stated that he did not know whether the real name of Nata Halwai was Abdul Wahab or not. He dallied the defence suggestion that on 15-8-1977, he, Ambika Prasad and others armed with weapons raided the house of Krishna Kumar appellant and inflicted injuries on the person of Krishna Kumar appellant. ( 19 ) PACHAI P. W. 2 has lent corroboration to the statement of Nand Lal P. W. 1. He deposed that he belongs to village Hussainpur which lies adjacent to village Chak Sahawan alias Sadhopur. Coming to the events of the day of occurrence, he stated that at about 7 A. M. on 15-8-1977, he was on his way to the house of Nata Halwai, alias, Abdul Wahab as his wife had breathed her last in the preceding night, on the way, be came across Ram Din near the house of Ram Kailash and, thereafter, at a distance of about 15 or 20 steps, he met Ambika Prasad, Hira Lal, Ram Kishore and Nand Lal who were also on their way to the house of Nata Halwai and they were empty handed. He further deposed that when Ambika Prasad received gun shot injuries, they all commented as to what he (Krishna Kumar) had done and, thereupon, Krishna Kumar went inside his house and chained the door from inside and fired two or three shots towards them through the window of his room. The shots did not hit anybody. Ambika Prasad (deceased) died on the spot. He further stated that his house lies at a distance of 100 paces from the house of Krishna Kumar. However, from Ext. Kha 1, it is crystal clear that village Hussainpur lies at a distance of about 1, 1/2 miles from village Sadhopur. In cross-examination, he admitted that after about 1/2,an hour bf the occurrence, he went to his house. He further deposed that at about 12 noon, he was sent for by the Sub-Inspector from his- house and when he reached the spot, he found Krishna Kumar sitting outside of his house and at that time, he did not see any injury on the person of Krishna Kumar appellant, but at about 2, 1/2 P. M. when the Police personnel were taking appellant Krishna Kumar with them, he was limping. At that time also, he did not see any injury on the person of Krishna Kumar appellant. He also stated that he did not see any bleeding injury on the head of Krishna Kumar. It was also admitted by him that when the firing took place, no one had assaulted Krishna Kumar and Krishna Kumar did not receive any injury. He denied the defence suggestion that complainant Nand Lal, Ambika Prasad deceased and others, had attacked the house of appellant Krishma Kumar and inflicted injuries on the person of Krishna Kumar. He also denied that Krishna Kumar in exercise of his right of private defence had resorted to firing which resulted in the death of Ambika Prasad. It may be noted here that P. W. 2 Pachai is a chance witness who belongs to a different village which lies at a distance of about 1/2 miles from village Sadhopur where the occurrence had, taken place. ( 20 ) RAM Kishore P. W. 4 deposed that on the day of occurrence at about 7 A. M. he was standing in front of his house which lies at a distance of 8 or 10 paces from the house of Ambika Prasad deceased. ( 20 ) RAM Kishore P. W. 4 deposed that on the day of occurrence at about 7 A. M. he was standing in front of his house which lies at a distance of 8 or 10 paces from the house of Ambika Prasad deceased. Narrating the events of the day of occurrence, be deposed that at about 7 A. M. , be was standing in front of his house when be saw two or four persons coming from east and west and they were Ambika Prasad, Pachai, Ram Din and Han Ram and these persons were -coming from west to east. He further stated that on seeing Ambika Prasad and others, be enquired as to where they were going to which they replied that they were going to condole the death of the wife of Nata Halwai who had died and as such, he also joined them and he along with Ambika Prasad and others reached in front of house of Krishna Kumar appellant. Krishna Kumar appellant who was standing in front of his door abused Ambika Prasad and said that his she-buffalo bad eaten away his Jack tree. Ambika Prasad with folded hands, ascended the Chabutra of Krishna Kumar and requested him to take the price of Jack tree from him whereupon Krishna Kumar fired at Ambika Prasad. Ambika Prasad fell down on receiving gun shot injury. On their protests, Krishna Kumar went back inside his house and bolted the door from inside. Krishna Kumar started firing towards us through the window but no one was hit by the firing. He further stated that at the time of occurrence, none amongst them was armed with any weapon. He stated in cross-examination that Krishna Kumar did not receive any injury in this occurrence. He admitted that he bad seen the injury on the head and legs of the appellant Krishna Kumar while he was being taken by the policemen to the Police Station. He further stated that he did not see any bleeding injury in the head of the appellant but later he admitted that blood was trickling down from his head. He also stated that no one had assaulted Krishna Kumar during the occurrence. He also admitted that in his presence, no one inflicted injuries to Krishna Kumar after the occurrence. He further stated that he did not see any bleeding injury in the head of the appellant but later he admitted that blood was trickling down from his head. He also stated that no one had assaulted Krishna Kumar during the occurrence. He also admitted that in his presence, no one inflicted injuries to Krishna Kumar after the occurrence. ( 21 ) HE further admitted that Krishna Kumar had a Jack tree towards the west of the house of deceased Ambika Prasad which had been planted 1, 1/2 years ago. However, he expressed his ignorance about the said Jack tree having been grazed by the buffalo of Ambika Prasad (deceased ). ( 22 ) ADMITTEDLY Ram Kishore is the uncle (Dada) of complainant Nand Lal and he is therefore, a highly partisan witness. ( 23 ) RAM Naumi Yadav P. W. 7 stated that on the day of occurrence, he was posted as Station Officer of Police Station Mau Aima. He deposed that after the registration of the case, he took the investigation of the case in his own hands and reached the place of occurrence at 12. 10 P. M. and found the door of the house of appellant Krishna Kumar bolted from inside. He got the door opened by Krishna Kumar and arrested him after inflicting injuries on his person -and from the said room where the appellant had been arrested, he recovered gun Ex. 4 belonging to the appellant and also recovered from his possession twot live and two empty cartridges Exts. 5 and 6. He proved the memo Ext. Ka. 6 in respect of these recoveries. He also proved inquest report Ex. Ka 7 and other documents connected with the inquest report. According to him, he found the dead body of Ambika Prasad on the Chabutra of the accused. ( 24 ) IN cross-examination, the witness admitted that he did not see any injury on the head of the appellant and that he did not inflict any injury on his head. He also denied to have seen blood coming out from the head of the accused. He further denied to have caused any bleeding injury on his head He further admitted that he did not mention in Memo Ex. He also denied to have seen blood coming out from the head of the accused. He further denied to have caused any bleeding injury on his head He further admitted that he did not mention in Memo Ex. Ka 6 memo regarding the arrest of the accused that at the time of arrest, he had caused injuries to the accused as he did not consider it necessary to mention it. ( 25 ) IT is significant to note that from the evidence of Investigating Officer, the bleeding head injury found on the person of Krishna Kumar by Dr. S. C. Srivastava, went unexplained. ( 26 ) TEJ Narain P. W. 6, Head Constable of Police Station Mau Aima deposed that the complainant Nand Lal handed over the report Ex. Ka 1 to him at 9. 30 A. M. on 15. 8 1977 at the Police Station whereupon, he prepared the Chik report Ex. Ka 3. He also registered a ease in the General Diary of the Police Station. He further deposed that the Investigation of the case was taken over by Ram Naumi Yadav, Station Officer of the Police Station and that Sub-Inspector Rajendra Singh brought seven sealed bundles relating to this case and also the accused Krishna Kumar to the Police Station whereupon he deposited the sealed bundles in the Malkhana and put the accused behind the Bar. In that connection, he made an entry in the G. D. No. 25 and a copy of the said G. D. report is Ex. Ka 5. He had found the injuries on the person of the accused and made a mention about the same in the General diary entry Ex. Ka 5. The injuries found by him on the person of the accused are given below. 1. Blood stained abrasion on the right hand finger. 2. Swelling on the wrist of right hand. 3. Abrasion on the back left side. ( 27 ) THE Head constable further deposed that he did not find any other visible injury on the person of the accused. ( 28 ) IT may be noted that there is no mention in memo Ex. Ka 5 that injuries found by the Head constable at the Police Station on the person of the accused were caused during the course of arrest. ( 28 ) IT may be noted that there is no mention in memo Ex. Ka 5 that injuries found by the Head constable at the Police Station on the person of the accused were caused during the course of arrest. Moreover, Nand Lal P. W. 1, Pachai P. W. 2 and Ram Kishore P. W. 4 did not state that the police had caused injuries on the person of the accused during his arrest to corroborate the statement of Ram Naumi Yadav Station Officer that he had caused some injuries on the person of the accused during his arrest. It may also be noted that Dr. S. C. Srivastava had found seven injuries on the person of accused, vide Ex. Ka. 3. ( 29 ) THE trial court did not place reliance on the evidence of Nand Lal P. W. 1, Pachai P. W. 2, and Ram Kishore P. W. 4. The court below also held that explanation of the injuries on the person of the accused given by Station Officer Ram Naumi Yadav P. W. 7 is not acceptable. It was also held that the act of grazing of jack-tree by the she-buffalo of deceased Ambika Prasad has also not been established which is ascribed to be the immediate cause of murder by appellant Krishna Kumar. It was further held that the story of assault by gum shot on the deceased Ambika Prasad by the appellant while the deceased along with Nand Lal and others was proceeding to the house of Nata Halwai in village Daulatpur does not radiate inspiration. The trial court also came to the conclusion that the prosecution had not been able to prove any motion or immediate motive for accused Krishna Kumar to commit the murder of Ambika Prasad. ( 30 ) ULTIMATELY, upon a consideration of the Inure evidence the trial court disbelieved the version of the occurrence given out by the prosecution and also by the defence. The trial court has formulated a third case which is given below: It thus is found that from the circumstances it is apparent that Ambika Prasad, Nand Lal and Baijnath had gone in the morning of 15-8-1977 at about 7 A M. to the place of the accused Krishna Kumar for talking and discussing the question with regard to the devolution of the property left behind by Jagamohan and Smt. Ram Dulari. It also appeared that on that occasion, one of them Baijnath had Lathi with him which is an article commonly kept by many of the villagers while going out of their home. There during the course of the talks, it appears there developed a situation in which Baijnath assaulted accused Krishna Kumar by his Lathi causing injuries to him. Krishna Kumar thereafter took hold of his gun kept at hand in the front room of his house and fired the fatal shot at Ambika Prasad resulting into his instantaneous death. ( 31 ) THE above finding by the learned Sessions Judge is not founded on evidence on record but it is based on his conjectures and surmises. The trial court, therefore clearly erred in devising a third case which was not supported by the evidence on record while disbelieving the prosecution and defence case. Once the trial court comes to the conclusion that the prosecution case is not proved, the accused deserves to be acquitted. However, in exceptional cases, the court may arrive at a correct version of the occurrence after discarding the prosecution ease. Provided the conclusions arrived at by the court are based on the evidence on record and not on conjectures and surmises as held by the trial court in the present case. ( 32 ) IN the present case, the plea of self-defence taken by the appellant appears to carry substance. The prosecution witnesses, Nand Lal, Pachai, and Ram Kishore have not explained the injuries on the person of the accused. They have denied that the accused had received injuries in the occurrence. They have not even stated that the accused was at all given beating by the police during the course of his arrest. From the evidence of Dr. S. C. Srivastava, it is established that the accused had received seven injuries including one lacerated wound on the head. Ram Kishore P. W. 4 has admitted in his cross examination that he had seen blood trickling down from the head of the accused when he was being taken to Police Station from the spot by the Police. Thus, the injuries on the person of the accused have not been explained by the aforesaid eye witnesses. Ram Kishore P. W. 4 has admitted in his cross examination that he had seen blood trickling down from the head of the accused when he was being taken to Police Station from the spot by the Police. Thus, the injuries on the person of the accused have not been explained by the aforesaid eye witnesses. The explanation of the injuries of the accused given out by the prosecution that the police had caused those injuries during the course of arrest, has rightly been rejected by the court below and the court has given good reasons. It is quite probable that the appellant had sustained the injuries before he fired at the deceased. The plea of self-defence taken by the accused therefore, cannot be ruled out. No heavy burden rests on the existence of his right of self defence affirmatively. If from the evidence as a whole a reasonable doubt is created in the mind of the court to the existence of the right of private defence the accused is entitled to acquittal. ( 33 ) THE trial court has clearly fallen in error in convicting the appellant under section 304 I. P. C. holding that the appellant had exceeded his right of private defence. It is not open to the court to pick out certain incriminating portions, from the statement of the accused for basing his conviction but the statement of the accused is to be taken into account upon the totality of the circumstances and: probabilities. The appellant had stated that he was first fired at by the deceased which did not hit him and. thereafter, he was assaulted with lathies by Baijnath and others. Under the circumstances, it appears quite probable that a reasonable apprehension of grievous hurt must have occurred to the accused giving him right of private defence of his person as contained in section 100 I. P. C. ( 34 ) THE finding of the trial court that the prosecution failed to prove the existence of any Jack tree and its grazing by the she-buffalo of deceased Ambika Prasad is quite cogent, convincing and probable. The court has also rightly come to the conclusion that the prosecution has failed to establish motive to the appellant for committing the offence and the witnesses of the occurrence have not stated the whole truth. The court has also rightly come to the conclusion that the prosecution has failed to establish motive to the appellant for committing the offence and the witnesses of the occurrence have not stated the whole truth. The conclusion drawn by the trial court that there was no occasion for Pachai P. W. 2 and Ram Din to have joined Ambika Prasad deceased and others for going to village Daulatpur to condole the death of the wife of Nata Halwai is quite correct and reasonable. Further, the finding of the trial court that the assault on the deceased Ambika Prasad did not take place when the deceased and others were on their way to village Daulatpur to the house of Nata Halwai does not inspire confidence, is also probable. The trial court has also rightly held that the explanation offered by the prosecution regarding the injuries of the accused is not acceptable. ( 35 ) IN view of the facts and circumstances of the case as discussed above, I hold that the evidence furnished by Nand Lal complainant and his two witnesses namely Pachai P. W. 2 and Ram Kishore P. W. 4 is not worthy, of reliance. Pachai P. W. 2 is a chance witness belonging to a different village and his presence on the spot is highly doubtful while Ram Kishore is highly partisan being very closely related to the complainant, Nand Lals evidence is also highly tainted and unsatisfactory. The aforesaid eye-witnesses also did not explain the injuries found on the person of the appellant. ( 36 ) AFTER giving my utmost consideration to the evidence on the record, I feel that the conviction and sentence recorded by the trial court, cannot be sustained and deserve to be set aside. ( 37 ) IN the result, the appeal is allowed and the conviction and sentences recorded by the trial court are set aside. The appellant is on bail. He need not surrender. His bail bonds are discharged. The trial court is directed to return the licenced gun Ex. 1 to the appellant. ( 38 ) THE oral prayer for leave to appeal to the Honble Supreme Court put forth by Sri I. N. Mulla, learned counsel for the complainant is rejected as it-is devoid of merit. Appeal allowed. .