JUDGMENT 1. - This criminal appeal is directed against the judgment dated February 13, 1978 passed by the Sessions Judge, Bundi, in Sess. Case No. 10/ 1975, whereby Pramod Kumar, the appellant has been convicted for the offence under Section 307, Indian Penal Code, and, sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000/- (in default of payment of fine, further six months' R.I.). 2. In brief, the facts giving rise to this appeal are thus On August 7, 1974, at 8 a.m. one, Hema s/o Nanda Meena r/o Haripura, accompanied by Chhota & Japan Nath lodged a report at police station Talera, district Bundi (Rajasthan), alleging therein that on August 6, 1974 at 6 p.m. when Bhima, Chbitar & Gopal were returning from their fields with their bullocks and when passing through the field of the appellant (wherefrom as alleged, they used to pass through), they saw the appellant coming from opposite direction sitting on the tractor; that, without there being any occasion Pramod Babu (appellant) opened fire on these afore-named persons by 12 bore gun-pellets of which passed through left leg of Bhima, gun shots made Chhitar injured & bullet brushed near his scapula, Gopal, third person got injuries at his abdominal region-as a result of the firing, these three persons fell down. 3. Upon the aforesaid report, a case for the offence under Section 307, IPC, was registered against the appellant. After usual investigation, a charge-sheet for the offence under Section 307, IPC, was filed before the Trial Court and, charge for the offence under Section 307, Indian Penal Code was framed against - the appellant. 4. The prosecution examined as many as sixteen witnesses to substantiate its case. The appellant pleaded right of private defence of person and property and examined one witness in his defence. 5. In his statement under Section 313, Cr. 4. The prosecution examined as many as sixteen witnesses to substantiate its case. The appellant pleaded right of private defence of person and property and examined one witness in his defence. 5. In his statement under Section 313, Cr. P. C. the appellant stated that he was attacked by the village people where he sustained a large number of injuries-report of which was lodged by one, Hajari Bhil at police station Talera at 3 a. m. i. e. 5 hours prior to the report lcdged by the complainant in the present case, wherein it was alleged that on August 6, 1974 at 5 or 6 p. m. he alongwith Pramod (appellant), Ratan and a driver of Agro Industries, went to the farm of the appellant where five hundred bigbas of land had been ploughed and the seed was yet to be sown. In that report lodged by Hajari, it was also alleged that the appellant alongwith aforenamed persons went on the farm to see as to whether in the balance of 42 bighas of land, 'Bah' had come or not,and when they reached near thereby they saw that about 25 persons were browsing their cattle's in the ploughed field of the appellant and the land was being damaged as there already had been rains. In the report of the accused-side, it was further alleged that the appellant and other persons who accompanying the appellant began pushing out the castles, and when they reached near 20 bighas road dam villagers exhorted that this Pramodia (appellant) has troubled us a lot and let him I e finished then and, the appellant was attacked by these persons who started pelting stones & inflicting blows with sticks. Ten persons had been named in the F. I. R. lodged by Hajari. It was averred in the report of Hajari that when they wanted to take shelter they ran towards tractor. On the basis of the aforesaid report of Hajari, & case under Section 147, 148, 447 & 307, Indian Penal Code was registered against the present complainant party. 6. In statement under Section 313, Cr. It was averred in the report of Hajari that when they wanted to take shelter they ran towards tractor. On the basis of the aforesaid report of Hajari, & case under Section 147, 148, 447 & 307, Indian Penal Code was registered against the present complainant party. 6. In statement under Section 313, Cr. P. C. the appellant also stated that when he was being chased and beaten, he could manage to reach his tractor and, found out some iron rods to shield himself against the attack that, he unbolted tool box of the tractor wherein he found his father's revolver which he pulled out and fired in his self defence. It is pertinent to mention that this Has constant defence plea of the appellant from the very beginning till end. On the basis of cross-report lodged by Hajari, a charge-sheet was also filed against the present complainant party for the offences alleged above. 7. The learned trial Court, Sessions Judge, Bundi, accepted the prosecution story, and convicted and sentenced the appellant as stated earlier. Hence this appeal. 8. To begin with and appreciate the merits of the present appeal, certain salient features relating to the testimony of the prosecution witnesses are required to be first highlighted for the purposes of the present appeal, in the context of the criticism levelled by the defence 9. The significant evidence though adduced by the prosecution is of Dr. R.N Purohit who was Medical Officer, General Hospital, Bundi on August 6, 1Q75, and who appeared in the witness box as P. W. 3. Dr. R. N. Purohit (PW?), in addition to the prosecution witnesses-injured namely Bhima, Chhitar, & Gopal, also examined medically the appellant and gave his report (Ex. P. 7) which he deposed to be in his hand and signatures. According to this injury report (Ex. P. 7) of the appellant, Dr. Dr. R. N. Purohit (PW?), in addition to the prosecution witnesses-injured namely Bhima, Chhitar, & Gopal, also examined medically the appellant and gave his report (Ex. P. 7) which he deposed to be in his hand and signatures. According to this injury report (Ex. P. 7) of the appellant, Dr. R. N. Purohit (PW3) found 27 injuries on the person of the appellant out of which injuries from I to 13 were deposed to he simple in nature and to have been caused by blunt ohject, for 14th, 15th & 16th injuries x-ray was advised and was conducted vide x-ray plate No 1537 which, according to the doctor (PW3) showed fracture of left second matacarpal & proximal phalynx of little finger as such, injury No. 16 was deposed to be grievous in nature and 11th and 15th injuries were deposed to be simple in nature. The report (Ex. P. 8) was prepared by him after examining x-ray plate No. 1537, doctor-witness added. 10. In cross-examination, Dr. R. N. Purohit deposed that 8th, 9th and 13th injuries on the person of the appellant may be caused by stick. 11. Dr. R. N. Purohit (PW 3) also proved the injuries on the person of Bhima, Chhitar and Gopal, on whose persons, doctor (PW 3) found the following injuries : Bhima examined vide injury report Ex. P. 7 in Sess. Case No. 10/75 of Sess. Judge, Bundi. 1. Gun shot wound 2" in diameter to inch inferomedially to anterior tib.o tubero.:ity on left side, which was bleeding at that time. 2. Gun shot wound 2" in diameter 5" infrontatirely to anterior tibiotuburocity on left side it was not bleeding.Chhitar examined vide injury report Ex. P. 6 in Sess. Case No. 10/75 of Sess. Judge, Bundi 1. Gun shot wound 2" X 1" which was situated 5" inferiority to lower margin at left scapula it was not blee ling. 2. Gun shot wound 2" X 1 S' which was 6.2" intero-laterally to lower margin of scapula which was not bleeding,Gopal examined vide injury report B. D. 77 in Sess. Case No. 10/75 of Seas. Judge, Bundi 1. Gun shot wound 2"X 15" which was situated 5.2 intero-laterally from right anterior superior iliac spime. 12. Bhima (PW2) who is injured eye witness, in his statement, narrated the same story as stated in the report (Ex. P. I) lodged by Hema. Case No. 10/75 of Seas. Judge, Bundi 1. Gun shot wound 2"X 15" which was situated 5.2 intero-laterally from right anterior superior iliac spime. 12. Bhima (PW2) who is injured eye witness, in his statement, narrated the same story as stated in the report (Ex. P. I) lodged by Hema. Bhima (PW1) deposed that the appellant opened fire by his pistol ('Tamancha'), he was the first injured and then Gopal and Chhitar sustained injuries. In cross-examination, Bhima (PW2) admitted the agricultural land named as 55 bighas Patti to have been that of the appellant; and further deposed that the appellant did not tell him that many times they had been forbidden to browse the cattles in his field but they ignored it. Bhima (PW2) added that the bullocks of Ramchandra, Moti & Chhota scuffled and went inside the field of the appellant where number of cattles were grazing. Bhima refuted that the appellant came down to draw cattles out of the field. He disowned his version given out in police statement which is marked as A to B wherein he had admitted that the appellant made complaint to him alongwith villagers for the damage s:,id to have been caused by their cattles. Bhima refuted that he was having stick in his hind and showed his ignorance as to whether Ramchandra, Chhota and others were having sticks in their hand. He further denied the suggestion that they gave beating with sticks to the appellant He disowned the police statement/ version marked C to D of Ex. D. 2 wherein he had admitted that they had sticks in their hands, they caught hold of the appellant and started beating the appellant. He again pleaded ignorance and denied the suggestion that the appellant also sustained injuries at that time Bhima admitted that after coming down from the tractor. Pramod opened fire. The witness pleaded ignorance to say as to whether the appellant had gone to hospital or not The witness admitted that after he sustained injury by gun shot, other injured, Chhitar & Gopal did not leave the place of occurrence. Bhima further stated that he had talked with Hema. Bhima also admitted that in the field which was prepared for sowing, if cattles did go inside it would he ruined, and that, cross case was pending against him-there was no animoisity with the appellant prior to the incident. Bhima further stated that he had talked with Hema. Bhima also admitted that in the field which was prepared for sowing, if cattles did go inside it would he ruined, and that, cross case was pending against him-there was no animoisity with the appellant prior to the incident. Bhima also stated that at the time when the bullet hit him he was standing some 30-40 paces away from the appellant and he knew the difference between gun and pistol. and at the time when the appellant aimed pistol at him he was not expecting that the appellant would open fire but he fired. The witness also admitted that the appellant initially opened fire of three blank shots. It will be useful to quote hereunder what the witness exactly deposed in his statement, in hindi in order to appreciate the evidence fairly and properly : HINDI MATTER 374720A 13. Gopal (PW4) is the other injured eye witness who in his statement has corroborated the story given out by Bhima and further stated that the appellant stopped the tractor and started hurling abuses to them-to which he protested and the appellant opened tire of three blank shots. The witness then deposed as under : HINDI MATTER 374720B For the rest of the three shots, the witness deposed that 4th shot h,t Bhima, 5th hit Chhitar and last to him. According to the witness, when the shots were opened, the appellant was 8 paces away from them. in his cross-examination, the witness stated that the appellant opened fire after coming down the tractor. The witness then showed his inability to corroborate the version A to B of Ex. D. 4 wherein he had stated that the bullocks went inside the field of the accused-appellant and when they were drawing the cattles out of the field (accused's) the appellant was sitting on the tractor. The witness added that after three blank shots were opened tire, the appellant was hurling abuses but they did not leave the place of occurrence. The witness admitted it to be correct that number of cattles were browsing in the fic1d of the appellant-they had not left the place of occurrence though the appellant was opening fire with time gap shots. The witness also admitted that in a field which was fit to sow, if the cattles are allowed to browse the field it would be ruined. The witness also admitted that in a field which was fit to sow, if the cattles are allowed to browse the field it would be ruined. According to him, he did not know as to why the appellant was hurling abuses. 14. Chhitar (PW 5) is the third eye-witness and is one of the injured. He has corroborated the evidence given by the other injured e)e-witnesses such as, in his examination-in-chief, he admitted that initially the appellant fired three blank shots-their cattles went inside the fit, Id of the accused-appellant Gopal went inside the field in order to draw the cattles out of the field-number of cattles were grazing in the field of the appellant. The witness admitted to be correct the part of his police statement wherein he had stated that they went inside the field of the appellant to draw their cattles out of field. The witness also admitted that even after first three shots made by the appellant they did not care to run away from the place of occurrence. 15. Chhotu (PW 7) corroborated the version given out by other witnesses as narrated above but he admitted that the revolver was lifted by Nathu from the field and that initially the appellant opened fire of three blank shots, and the shots were made at a distance of 4-5 paces. The witness admitted the scuffle in between the village people and appellant. 16. In his cross-examination, Chhotu (PW 7) admitted that the injured persons, Chhitar, Gopal & Bhima were 3-4 hands i.e. (4 to 6 feet) away from the appellant-at the instance of the appellant, number of cases were rending against the villagers and the same were with regard to the alleged damage to the field of the appellant by the cattles of the villagers. 17. Hema (PW I) though is not an eye witness but is a person who lodged report (Ex. P. 1) at the police station and who has admitted that before making report he was informed about the details of the occurrence by the injured persons. 17. Hema (PW I) though is not an eye witness but is a person who lodged report (Ex. P. 1) at the police station and who has admitted that before making report he was informed about the details of the occurrence by the injured persons. According to the witness, he has stated in that report that the appellant fired 12 bore gun and, he further admitted that the injured persons informed him that they were hit by the shots fired by 12 bore gun whereas the case of the prosecution is that the injured were hit by the shots fired from a revolver. This is a material discrepency which I would deal with later on. 18. The most important part of the statement of the prosecution witness, Hema (PW 1) which also clinches the issue and merit of this appeal, is that between to the police-a report was written but the same was not completed though signatures were taken-that report was torn up and another second report was got written paying by the police that report was not helpful to the prosecution. Here 1 would wish to quote the exact Hindi version deposed in the statement by the witness - HINDI MATTER 374720C This witness admitted that there was no previous animoisity in between the injured persons and other villagers with the appellant. The witness admitted to have stated in his police statement marked A to B that the cattles of the villagers used to destroy the field and crop of the appellant. 19. Sbambhu (PW 6) is the attesting witness of the site plan. The witness in his cross examination admitted to be at Bundi on the day of occurrence. Jagannath (PW 8) is not an eye witness but in his statement he deposed that he accompanied with the informant and got report lodged. In his cross-examination the witness admitted that before the submission of their report, a report was lodged at the instance of the appellant. The witness then added that the blood stained soil was taken by the Deputy S.P. and the blood stained earth was in the way-a memo of which was prepared by the Deputy S.P. 20. Another attesting witness of Ex. P. 8 seizure memo of the blood stained clothes of the injured persons is Kripal Singh (PW 9). The witness then added that the blood stained soil was taken by the Deputy S.P. and the blood stained earth was in the way-a memo of which was prepared by the Deputy S.P. 20. Another attesting witness of Ex. P. 8 seizure memo of the blood stained clothes of the injured persons is Kripal Singh (PW 9). Nathu (PW 10) in his statement has deposed that the revolver was lifted by him from the agricultural land of the appellant the same was delivered by him to the police, after 8-10 days of the occurrence. In his cross-examination, Nathu (PW 10) admitted to have seen Gopal lying in the field of the appellant at a distance of 2-3 paces away from the place wherefrom he lifted the revolver. 21. Ramchandra (PW 11) though is not eye witness of the occurrence but he has stated that he reached at the place of occurrence after the incident had taken place; and did see the injured in the field. In his cross-examination the witness admitted that he did not see any beating (maar-peet). The witness disowned part of his police statement marked as Ex. D. 8 wherein he had deposed that the appellant made complaint that the villagers used to destroy his crop and his field through their cattle and that the villagers pelted stones on the appellant and after ward; they gave beating to him by sticks. 22. Narain (PW 12) though stated that the site plan was prepared before him but he did not claim to be the attesting witness for the same. Narendra Kumar Patni (PW 13) stated that on 7.8.74 he was posted as Deputy Superintendent of Police; and on the direction of Superintendent of Police he alongwith Sub-Inspector, Nazir Ali reached the spot and found blood stained earth in the filed of the appellant, and he seized the blood stained soil. Then the witness deposed that he recorded the statement of the witnesses. In his cross-examination the witness admitted that the blood stained earth was at a long distance from the path, and that was about 16 ft. inside the field of the appellant. The witness in his cross-examination has categorically deposed that he did not find any blood stained earth in the path where the incident is said to have taken place. 23. Nazar All (PW 14) has given statement with regard to the site plan (Ex. inside the field of the appellant. The witness in his cross-examination has categorically deposed that he did not find any blood stained earth in the path where the incident is said to have taken place. 23. Nazar All (PW 14) has given statement with regard to the site plan (Ex. P. 7) and seizure memo of revolver (Ex. 10). This witness also admitted that the blood stain-,l earth was fount in the field of the appellant. Nazar Ali (PW 14) also admitted this W the blow stained earth was found, its memo was prepared by them; and he prepared site plan of cross-case registered as No. 11/75 at the police station. The witness proved Ex. D. 5, D. 7, D. 8 and stated that whatever statement was given by the prosecution witnesses was written by him. 24. Abdul Vahid (PW 15) is formal witness who presented the charge-sheet against the appellant, Laxmi (PW 16) is the witness for Ex. P. I and F.I.R. tFx. P. 13). In his cross-examination, the witness also admitted that he alongwith Deputy Superintendent of Police inspected the site and there they found blood stained earth in the field of the appellant and they did not find any blood in the way where the incident is said to have taken place. 25. 1 have heard the learned counsel for the appellant and the learned Public Prosecutor. 26. Shri Rajendra Singh, learned Senior Counsel associated with Mr. A.K. Gupta. appearing on behalf of the accused-appellant, firstly contended that the prosecution story does not inspire any confidence as to how the incident took place because, the case set up in the first information report was that without there being any cause, the accused started firing by 12 bore-gun but this story has been found to be false. According to the learned counsel, once the story is considered to he false the learned Sessions Judge ought to have considered the defence version more probable. 27. Learned counsel then urged that the defence of the appellant has been considered by the learned Sessions Judge as if he was deciding the prosecution story, and that, the defence has to be proved by preponderance of probability. 27. Learned counsel then urged that the defence of the appellant has been considered by the learned Sessions Judge as if he was deciding the prosecution story, and that, the defence has to be proved by preponderance of probability. The learned Sessions Judge further acted illegally in not taking into consideration that the complainant has not explained injuries on the person of the appellant who had sustained as many as 27 injuries and one of the injury was found to be grievous, and the inference of the learned Sessions Judge that the injuries on the person of the appellant might have been sustained subsequently, is based on no evidence, Shri Rajendra Singh added. 28. Shri Rajendra Singh furthered that the learned Sessions Judge has once accepted the story that the incident took place because of the cattles browsing and trespassing in the field of the appellant, he ought to have given benefit of right of private defence to the appellant or at least benefit of doubt, and that, the prosecution has tried to suppress truth on all counts and it has further been submitted that the learned Sessions Judge has erred in disbelieving the defence version of the appellant who had come to see 'Bah', when it is fully borne out from the facts of the case. Learned counsel lastly urged that the learned Sessions Judge has erred in observing that the injury was the result of free fight between the parties. 29. Shri Rajendra Singh placed reliance on the following decisions in support of the arguments1. Gajanand v. State of U.P., (AIR 1954 SC 694) 2. Subhan Khan v. State of Rajasthan, (1970 RLW 604) 3. Lakshmi Singh v. State of Bihar, ( AIR 1976 SC 2263 ) 4. Bir Singh v. State of U.P., (AIR 1978 SC p. 59) 5. State of J & K v. Hazara Singh, (AIR 1981 SC p. 451) 6. Seriyal Udayar v. State of T N., ( AIR 1987 SC 1289 ) 7. State of Gujrat & ors. v. Acharya Devendra Prasad Pande ( AIR 1971 SC 866 ) . 30. Bir Singh v. State of U.P., (AIR 1978 SC p. 59) 5. State of J & K v. Hazara Singh, (AIR 1981 SC p. 451) 6. Seriyal Udayar v. State of T N., ( AIR 1987 SC 1289 ) 7. State of Gujrat & ors. v. Acharya Devendra Prasad Pande ( AIR 1971 SC 866 ) . 30. Shri K.N. Shrimal learned Public Prosecutor submitted that the accu,ed-appellant without any cause opened fire on the complainant party and the 'hree of the persons were injured; but, learned Public Prosecutor failed to give any reason as to why the injuries on the persons of the accused-appellant have not been explained by the prosecution According to the learned Public Prosecutor as he submitted, the accused-appellant has rightly b;.en convicted and sentenced by the learned trial court. 31. I have given my anxious and thoughtful consideration to the points urged by both the learned counsel and perused the record and so also gone through the decisions cited by the learned counsel for the appellant. 32. As stated earlier, the appellant has claimed his right of private defence and he has examined Mohd. Hussain (DWI) as his defence witness. It cannot be disputed that the appellant sustained as many as 27 injuries as has been proved Dr. R.N. Purobit who has deposed in his statement as stated above that he has examined the injuries on the person of the appellant, Pramod and prepared injury report; and that the appellant sustained fracture of left second meta carpal and proximal phalynx of little finger and 16th injury on the person of the appellant was found to b:, grievous in nature. As said earlier, a pertinent suggestion was given during cross-examination to the prosecution witness that the appellant was given beating by the complainant party, he sustained injuries on his person-upon this prosecution witness pleaded ignorance. It is thus clear that the defence version was put before the prosecution witnesses but no definite reply was given by the witnesses. In a case where the prosecution failed to explain the injury on the person of the accused then it assumes great significance and importance where the defence gives version which competes in probability with that of the prosecution one. In a case where the prosecution failed to explain the injury on the person of the accused then it assumes great significance and importance where the defence gives version which competes in probability with that of the prosecution one. The non-explanation of the injuries by the prosecution may not affect the prosecution case only where the injuries sustained on the person of the accused are minor and superficial in nature and where the evidence is so clear and cogent being independent, disinterested and so probable, inconsistent and credit worthy that it out wig the effect of the omission on the part of the prosecution to explain the injuries. 33. In Lakshmi Singh v. State of Bihar (supra). their Lordships of the Supreme Court observed that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences (I) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. 34. It is correct to say that the prosecution story does not show as to how the whole incident started It is the case of the prosecution that while the injured persons from the complainant party were returning from their field and passing through way which passes from the field of the accused-appellant, they saw that the accused-appellant alongwith three persons were coming from the opposite direction sitting on a tractor. It is the prosecution case that when the injured persons from the complainant party reached near the tractor, the accused-appellant opened the fire. It has not been disclosed as to why the accused-appellant opened the fire on the complainant party. It has not yet been claimed by the prosecution that the accused-appellant was inimical to the persons of the complainant party who have been injured. It has not been disclosed as to why the accused-appellant opened the fire on the complainant party. It has not yet been claimed by the prosecution that the accused-appellant was inimical to the persons of the complainant party who have been injured. I fail to understand as to why the accused appellant opened fire on the complainant party. The accused-appellant in his statement under Section 313. Cr. P. C. has given explanation that under what circumstances, be was forced and compelled to fire shots from the revolver which was inside the tool-box of the tractor, which the accused-appellant incidentally found there. Looking to the entire evidence of the prosecution, the explanation given by the accused-appellant cannot be disbelieved because, the same has not been controverted by the prosecution. The statement of the accused-appellant is corroborated by the circumstances which are available on record such as, the blood was found inside the field of the accused-appellant and no blood was found at the place where the prosecution alleged the place of incident as is admitted by the prosecution witnesses. In site plan (Ex. P. 7) there is no mention of the blood stained earth or that, the blood was found at the place where the occurrence is said to have taken place. It has also been admitted by the prosecution witnesses that revolver and injured, Gopal, were found lying inside the field of the accused-appellant, 35. In my opinion, these are important circumstances which cumulatively discredit the prosecution case and supported suggestion of the defence that the occurrence did not take place at the place and in the manner as alleged. Looking to the injury on the persons of the complainant party it is clear that the blood must have been oozed out and if the blood was there at the place which the prosecution claimed to be of occurrence then investigating Officer could not have failed to notice the same. The fact that the blood at that place was not indicated in the site plan, clearly shows that the injured persons from the complainant party did not receive the injuries there. This is undoubtedly important aspect which merits serious consideration. In these circumstances, the prosecution has not been able to show that there was any blood at the place where Bheema (PW2). This is undoubtedly important aspect which merits serious consideration. In these circumstances, the prosecution has not been able to show that there was any blood at the place where Bheema (PW2). Gopal (PW4), & Chbitar (PW5) fell down and this raises reasonable interrace that these three injured might have been assaulted else where and once that is so then case regarding assault of the deceased at the place of occurrence is false and it fails because the two incidents are parts of the same transaction. 36. In Serial Udayar v. State of Tamil Nadu (supra) their Lordships of the Supreme Court observed that where though the right of private defence (J the accused appellant was not established still the material produced in cross examination and circumstances indicated that the incident might have happened in a manner in which it was suggested by the accused-appellant, in this view of the matter, it could not be said that the prosecution has been able to establish the offence against the appellant beyond reasonable doubt, and therefore he was entitled to be acquitted. 37. From the evidence which has been referred to above, in the present case, it is clear that the occurrence took place in the field of the accused appellant. It has been admitted by the prosecution witnesses that a number of bullocks were browsing in the field of the accused-appellant: and that, the bullocks of Gopal, Chhitar and Bhima also did go inside the field of the accused appellant and further that the agricultural land of the accused appellant was fit for sowing and also that the same can be ruined by the cattle trespassing from all these circumstances, it transpires that the accused-appellant might have made complaint to the villagers including the complainant party and the injured persons, Bhima (PW 2). Copal (PW 4) & Chhitar (PW 5). As stated earlier, the prosecution witnesses including the injured witnesses, have clearly admitted that initially the accused-appellant fired three blank shots after short intervals. It has also been admitted by the injured witnesses that even after the blank shuts they did not flee away from the place of occurrence. Copal (PW 4) & Chhitar (PW 5). As stated earlier, the prosecution witnesses including the injured witnesses, have clearly admitted that initially the accused-appellant fired three blank shots after short intervals. It has also been admitted by the injured witnesses that even after the blank shuts they did not flee away from the place of occurrence. 1 am of the opinion that he was humanly impossible in a position where the accused has been tiring blank shots by his revolver at different intervals then a person facing him would not apprehend that the accused could also open fire at them and in that circumstances, the conduct of the persons facing the accused would be that they would immediately try to leave the place of occurrence. But in the instant case, the witnesses including injured one as they admitted that the blank shots were being tired at different but they did not try to flee away from the pace of occurrence shows the adamancy of the complainant party. Moreover, in view of these circumstances, it cannot be inferred that the appellant intended to inflict injuries what to talk of committing murder. Such a conduct of the accused-appellant viz, initially he fired blank shots transpires that initially the appellant wanted that the complainant party must have left the field of the accused. Hence the assertion of' the accused appellant cannot be disbelieved that he fired blank shots in order to protect himself or the firing was not a retaliatory action and thus it can be inferred that initially the complainant party was the aggressor and looking to the injuries on the person of the accused-appellant such an inference is further strengthened. It was highly unlikely that after the first shot, the prosecution witnesses who claimed to have been present on the spot and witnessed the occurrence would have observed second shot having fired in case they would have apprehended any fear of their life. 38. The learned Sessions Judge in his judgment has observed that the bullocks of the injured witnesses went inside the field of the accused-appellant after scuffle and at that time, the accused appellant arrived at his land with his tractor and he might have tried to push the bullocks out of his field and in that process he (accused) might have hurled abuses to the complainant party and this would have led the cause of fight. After arriving at the aforesaid findings, the learned Sessions Judge ought to have given benefit of right of private defence to the accused-appellant or at least benefit of doubt. 39. The learned Sessions Judge though observed that the accused-appellant sustained injuries and the same has not been explained but he while placing reliance the decision of this Court in Kalu v. State (1965 RLW P. 60) , held that the fight between the parties was free and none of them could have claimed right of private defence. However, on the principles laid down in the decision of the Supreme Court reported in AIR 1957 SC p. 469. the learned Sessions Judge observed that this is not a case where the private defence can be given to the accused-appellant because it has not come on record as to how the fire started and as to who was the aggressor. 40. In my view, the learned Sessions Judge was not justified in holding that this was a case of free fight because in a case of free fight both sides must have been adamant to fight at the very beginning. 41. In Gajanand v. State of Uttar Pradesh (supra), their Lord.hips of the Apex Court held that a free fight is "when both sides mean to fight from the start, go out to fight and there is a piched battle. The question of 'who attacks and who defends' in such a fight is wholly immaterial and depends on the tactics adopted by the rival commanders". But, in a case where it has been found that one of the parties is aggressor then inference of 'free right' cannot be drawn. In the facts and circumstances of the present case, as have been discussed above, I am of the opinion that it was not possible to suggest that both the parties were pre-determined for trial of strength and had a free fight. In the facts and circumstances of the present case, as have been discussed above, I am of the opinion that it was not possible to suggest that both the parties were pre-determined for trial of strength and had a free fight. Admittedly the case of the prosecution as well as of the appellant was that their presence at the place of occurrence was innocent and incidental and to a certain extent, it is correct because the injured witnesses of the complainant party were returning from their fields and accidentally the accused appellant was coming to his field without knowing that the injured witnesses of the prosecution might have been coming from the opposite direction; and when the injured witnesses as discussed above and the accused appellant reached the crucial place viz. agricultural field of the accused-appellant fight took place. The prosecution has not disclosed the genesis of the firing but the accused has given explanation which in the circumstances of the present case, appears to be probable rather reasonable. In this regard, reliance can be placed on the decision of this Court in Subhan Khan v. State of Rajasthan (supra). 42. The contention of the learned counsel for the accused-appellant has some force and substance that the accused-appellant did not choose to hit vital part of the injured persons, Bheema (PW 2), Gopal (PW 4) and Chhitar (PW 5) and this is sufficient circumstance to show that the accused-appellant never intended to commit any murder or cause grievous hurt. To substantiate the aforesaid contention, learned counsel referred to the injuries on the person of Bheema, Gopal and Chhitar. 43. A look at the injury reports of these afore-named three persons shows that the injuries are not on the vital part of the body. As per the prosecution when the accused appellant intended to commit murder then there was no hurdle or hinderance with him in not hitting the vital part of the injured afore named persons and achieving his object. This important circumstance has not been clarified by the prosecution-benefit of which certainly and must go to the accused-appellant, inasmuch as the circumstance throws doubt on the prosecution case its genesis and the origin of occurrence. In the instant case, all the eye witnesses had serious animus against the accused-appellant and they were interested in implicating the accused-appellant. This important circumstance has not been clarified by the prosecution-benefit of which certainly and must go to the accused-appellant, inasmuch as the circumstance throws doubt on the prosecution case its genesis and the origin of occurrence. In the instant case, all the eye witnesses had serious animus against the accused-appellant and they were interested in implicating the accused-appellant. It is settled and trite law that where all the eye witnesses examined by the prosecution had serious animus against the accused as is evident in the present case from the narration of the above of the prosecution, and who were int-rested in implicating the accused and neither independent witnesses were examined nor any reasonable explanation was given by the prosecution, in such a situation the Court must draw an adverse inference against the prosecution. 44. After going through the statement of the prosecution witnesses especially of Bheema (PW2), Gopal (PW4) and Chhitar (PW5) admittedly it is precise that number of cattles were browsing in the field of the accused-appellant and the bullocks of these witnesses had been inside the field, the agricultural land of the appellant was fully ripe for sowing; in case the land as has been admitted by the prosecution witnesses in their evidence, if is fit for sowing then the same could be ruined if the cattle trespassed and passed through it; thus, it can be assumed that there was actual invasion of right of person, in possession of the property. in that situation, is entitled to defend himself and his property by force and similar were the circumstances before the accused-appellant who had a right even to collect such arms as were necessary for that purpose. Therefore. the accused-appellant who had seen invasion of his right, was lawful to go to the spot and object and for that purpose the accused-appellant had also right to take suitable weapons for his self-defence. 45. Ramchandra (PW11) in his statement under Section 161, Criminal Procedure Code has categorically admitted that the complainant party was armed with sticks and the cattles of the complainant party trespassed over the land of the accused appellant and the same was going to be ruined. Although the witness has been owned aforesaid part of his version but this part of his version is proved by Nazar All (PW14) who had recorded in his statement under Section 161 Cr. Although the witness has been owned aforesaid part of his version but this part of his version is proved by Nazar All (PW14) who had recorded in his statement under Section 161 Cr. P. C. Nathu (PW10) in his statement clearly admitted that the incident took place at the place wherefrom the revolver was lifted and where the injured, Gopal was found lying. 46. It is thus clear that the firing at the injured persons was not a retaliatory action and it was fired by the accused appellant in the aforesaid circumstances in the exercise of his right of private defence of person and his property and, his act is held to be an act done in the exercise of his right of private defence. 47. One of the most important circumstances which also makes the prosecution case doubtful is that Hema (PWI) in his statement has admitted that two reports were written; and first in time was torn up on the instructions of a Police Officer who has not been named by the witness, and Ex. P. I is the second report which was deposed to be written after the first one was torn up. In view of the aforesaid version or the admission of the witness, it was obligatory on the part of the prosecution either to have proved that there was no such happening or should have also brought the contents of that report which was torn up so that the Court could have known, whether the facts alleged in both the two reports were identical. Hema (PWI) has brazenly admitted that the report was torn up because the police officer told that the contents of the report were not substantial. This version of admission by itself is sufficient to assume that Ex. P. I was written after improvement so as to make it substantial involving the accused-appellant of the charge of inflicting injuries; and in my considered opinion, the fact that the prosecution was prepared to implicate the accused-appellant in a serious charge is indicative of the fact that no credence can be given to the evidence of the prosecution witnesses and they were willing to lend their oath to any story that the prosecution advanced. And, once the evidence of lodging the report in the manner stated above and that of eye witnesses of the prosecution is liable to be brushed aside in view of the circumstances narrated above and on that ground, the residue by itself would not be adequate to support the charge against the accused-appellant. Therefore, I am of the opinion that the aforesaid circumstance is good and enough ground to infer that the case of the prosecution is doubtful and the benefit of which according to law must go to the accused-appellant. 48. Taking into consideration all the circumstances of the case as dis-cussed above, I am of the opinion that the prosecution witnesses have given a very belied statement and they cannot be held to be reliable and trust-worthy witnesses in as much as the substratum of the evidence of the prosecution witnesses can be rejected so far as the present accused-appellant is concerned merely on the ground that their testimony was of an interested and partisan character and so also on the ground that they were not speaking the whole truth. 49. And, thus the prosecution has completely failed to prove its case beyond reasonable doubt. On account of the infirmities pointed out above, I find that the prosecution has not been able to prove case against the accused-appellant beyond reasonable doubt and looking to the facts and circumstances of the case, the accused-appellant was justified in seeking prayer for the benefit of right of private defence, which was not granted by the learned Sessions Judge and I hold that the accused-appellant is entitled to get benefit of doubt in addition to benefit of right of private defence in person and property; and I am disagreed with the findings arrived at by the learned Sessions Judge on all counts because, in view of the infirmities pointed out above and discussion of the appreciation of evidence of the prosecution, in my opinion, the substratum of their evidence against the accused-appellant cannot safely be accepted so as to find him guilty of an offence under Section 307, IPC, and which cannot be taken into account for mitigation of the sentence, and guilt. In any view of the matter, having regard to the aforementioned ramifications of the matter, the appellant is entitled to benefit of reasonable doubt. The finding of guilt recorded by the trial Court must, therefore, be set aside. 50. In any view of the matter, having regard to the aforementioned ramifications of the matter, the appellant is entitled to benefit of reasonable doubt. The finding of guilt recorded by the trial Court must, therefore, be set aside. 50. In the net analysis and result of the matter, I allow this appeal of the accused-appellant, Pramod Kumar; set aside the judgment dated February 13, 1978 in Sess. case No. 10/75 passed by the Sessions Judge, Bundi, in addition to the conviction and sentence recorded against the appellant. The appellant, Pramod Kumar is acquitted of all the charges levelled against him. The appellant is on bail. The bail bonds shall stand cancelled. The appellant need not surrender. Fine, if recovered, shall be refunded.Appeal allowed. *******