JUDGMENT U. K. Varma, J. 1. This is an appeal against the judgment of Sri M. Lal, III Additional Sessions Judge, Jaunpur dated 11-3-78 convicting Ram Komal alias Komal, Daya Shanker and Ram Karan under sections 302/34 and 307/34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life on the first count and to seven years rigorous imprisonment on the second with the stipulation that the sentences shall run concurrently. The appellant Ram Karan died during the pendency of the appeal which has abated against him. The present appeal thus, is confined to the appellants Daya Shanker and Ram Komal. 2. The fact that there was a 'marpeet' at 10.30 a.m. on 7-6-76 in village Allapur, police station Machchalishahr District Jaunpur, near the well to the south of which was the house of Ram Karan accused and to the west of which is the house of the informant Ram Mohan Tewari informant is not disputed. It has also not been controverted that Ram Mohan had filed a suit for cancellation of the sale deed in favour of the accused Vijay Shanker and there were also criminal cases going on between the parties at that time. The version of Ram Mohan with regard to the incident as contained in his first information report Ex. Ka 1 is that the accused Ram Komal alias Komal, Ram Karan, Daya Shanker, Vijay Shanker and Sadho armed with lathis and spear came to the house of the informant to assault him. He raised alarm which attracted Set Bahadur Singh and Dan Bahadur Singh. The above five accused started beating Set Bahadur and Dan Bahadur also as they tried to intervene. The witnesses Deoraj and Prahlad and many others had seen Ram Mohan informant and Set Bahadur and Dan Bahadur receiving the injuries. Set Bahadur on account of the several head injuries was not likely to survive. 3. This case initially registered under sections 147/148 and 307 of the Indian Penal Code, on the death of Set Bahadur was converted additionally into one under section 302 of the Indian Penal Code. The injury and post mortem reports of Set Bahadur are Exhibits Ka 7 and Ka 8 respectively. It follows therefrom that he had sustained more than seven injuries above his neck and his right temporal, right parietal, left parietal and left temporal bones had been fractured. The injury and post mortem reports of Set Bahadur are Exhibits Ka 7 and Ka 8 respectively. It follows therefrom that he had sustained more than seven injuries above his neck and his right temporal, right parietal, left parietal and left temporal bones had been fractured. The total number of injuries inflicted on Set Bahadur had been noted to be thirteen in the post mortem report and he was shown to have died on account of the head injuries. 4. The number of injuries of Dan Bahadur in his injury report Ex. Ka 5 recorded at 12.45 p.m. on 7-6-76 has been mentioned to be eight and the informant Ram Mohan in h'"s medical report Ex. Ka 6 has been pointed to have been inflicted two injuries. The weapons used in the assault on Set Bahadur, Dan Bahadur and Ram Mohan informant had been opined by the Medical Officers to be blunt objects. 5. The prosecution had examined Ram Mohan informant (PW-1), Dan Bahadur (PW-2) and Deoraj Singh (PW-4) as the witnesses of the occurrence. They corroborated the FIR but explained the absence of pointed or incised injuries on their side by giving out that Ram Komal had not inflicted any injury by the pointed portion of his spear but had used it as a lathi. Dan Bahadur and Set Bahadur injured, it was introduced to counter the defence version had reached the scene of the incident as of chance while going to purchase bullocks. Explanation was also given of the injuries on the side of the appellants for the first time during evidence. Ram Mohan gave out that he and Ram Sant in the exercise of their right of private defence had wielded their lathis by which some accused had been injured. We, however, expressed inability to tell as to who amongst the accused had sustained injuries on the pretext that he coul1 not see it n account of his own injuries. He was specifically questioned whether the accused Daya Shanker had received injuries on his head or not, whether Ram Komal had fallen on the ground after sustaining spear injuries or not, whether Ram Karan had been inflicted bodily injuries or not and whether Krishna Murari too had been assaulted or not but he pleaded ignorance in respect of each of the above questions. He denied the suggestion that he, Ram Sant, Lallan Singh, Dan Bahadur Singh and Set Bahadur Singh armed with spear and lathi had gone to attack Ram Karan. He admitted that besides Prahlad there were ten to fifteen persons of the village present at the time of the incident near the scene of occurrence. He offered no explanation as to why his statement under section 161 of the Code of Criminal Procedure did not contain any such averment that Ram Sant had also used lathi in self-defence. 6. Dan Bahadur (PW-2) too stated that Ram Komal had used his Ballam as lathi and that some of the accused had been injured when Ram Mohan and Ram Sant had defended themselves with their lathis. He admitted that Deoraj (PW-4) was related to him being the grandson of Jaishree who was the brother of his father Bhawani Singh. In the cross-examination he also owned that Ram Set had filed a complaint against some of the accused and therein cited him and the deceased Set Bahadur as his witnesses and that the accused Vijay Shanker had filed a complaint against him and Set Bahadur and also the informant in the court of the Special Magistrate and the same was pending. He too could not state whether Ram Komal had received any spear injury or not. He alleged to have intervened along with Set Bahadur on seeing Ram Mohan being beaten. The duration of the marpeet had been pointed by him to be two to four minutes but he like the previous witness could not say whether Ram Karan, Ram Komal and Daya Shanker had sustained any injury or not. He could not explain as to why the Investigating Officer did not record his statement under section 161 of the Code of Criminal Procedure that he had reached the scene of occurrence while going to purchase bullocks along with Set Bahadur deceased and had intervened to prevent the assault by the accused. He also expressed ignorance about the presence of Krishna Murari Pandey at the house of Ram Komal at the time of the incident. Deoraj Singh (PW-4) gave out that he reached the house of the informant Ram Mohan on his way to his School in village Bagi and saw Ram Komal, Daya Shanker, Sabha Shanker, Vijay Shanker and Ram Karan Tewari assaulting Ram Mohan and Ram Sant. Deoraj Singh (PW-4) gave out that he reached the house of the informant Ram Mohan on his way to his School in village Bagi and saw Ram Komal, Daya Shanker, Sabha Shanker, Vijay Shanker and Ram Karan Tewari assaulting Ram Mohan and Ram Sant. It was at that time that Dan Bahadur and Set Bahadur arrived and they challenged the accused. They thereupon assaulted Set Bahadur and Dan Bahadur. Ram Komal while inflicting the injuries had been using his spear as lathi. Ram Sant and Ram Mohan had inflicted injuries on the accused in the exercise of the right of private defence. In his cross-examination he admitted that his School was closed on the date of the incident. He explained that he had been going there for the pay-bill as he was the in-charge Head Master, who lived at sufficient distance. He did not produce the bill-book from which it could be ascertained whether he really had gone to his School on the date of the incident or not. Ram Komal appellant according to him had sustained the spear injury as a result of fall on his own spear. 7. The appellant Ram Komal in his statement pointed that Set Bahadur, Dan Bahadur, Lallan Singh, Ram Mohan and Ram Sant had gone to the house of Ram Karan after forming an unlawful assembly. Set Bahadur was armed with Ballam and the others with lathis. Set Bahadur inflicted injury with Ballam whereas his associates assaulted with lathis. Ram Karan Krishna Murari, Daya Shanker intervened to save him. They all sustained injuries Set Bahadur and Ram Mohan received injuries by the lathi of Krishna Murari. They had got themselves medically examined and on their behalf report had been lodged by his son Sabha Shanker. 8. Daya Shanker appellant stated that Set Bhadur, Dan Bahadur, Lallan Singh, Ram Mohan and Ram Set were assaulting his brother Ram Komal and his uncle Ram Karan and when he went to save them he was also inflicted injuries. Krishna Murari had exercised the right of private defence on their behalf and as a result thereof some injuries were caused on the other side. Ram Karan Tewari deceased appellant had pointed that the incident had taken place in front of his house and that Dan Bahadur and others had assaulted him. 9. Vijay Shanker and Sabha Shanker pointed that they had not participated in the incident. 10. Ram Karan Tewari deceased appellant had pointed that the incident had taken place in front of his house and that Dan Bahadur and others had assaulted him. 9. Vijay Shanker and Sabha Shanker pointed that they had not participated in the incident. 10. The appellants had examined Dr. Balwant Singh (DW-1), Krishna Murari (DW-2) and Dr. R. P. Rastogi)(DW-3). Dr. Balwant Singh (DW-1) proved the medical report of Krishna Murari Pandey Ex. Kha-4. It follows therefrom that he had examined Krishna Murari Pandey on the date of the incident at 4 p.m. and found the following injuries on his person :- 1.One linear lacerated wound over head 7 cm. x 0.5 cm. x skim bleeding. 2.One lacerated oblique wound over the mid of the right shoulder bleeding, size 10 cm. x 3 5 cm. 3.One vertical bluish red swelling over the right scapula. The injury report of Ram Komal Ex Kha-5 had been proved by Dr. R. P. Rastogi (DW-3). It follows therefrom that he had sustained the following injuries :- 1.Incised punctured wound 4 cm. x 0.8 cm. x deep. Kept under observation on the left side chest. 2.Lacerated wound 1 1/2 cm. x 1/10 cm. x skin deep. 3.Contusion 2 1/2 cm. x 1 cm. on the top of the left shoulder. The injury report of Daya Shanker Ex. Kha-2 shows that he had been examined soon after the incident and he had sustained the following injuries :- 1.Lacerated wound 1 1/2" x 1/4" x bone deep on the left side forehead, 1 1/2" above left eye brow. 2.Lacerated wound 2" x 1/4" x muscls deep on the right side head. 3.Abraded contusion 1 1/2" x 1/2" on the back of the middle of the right fore-arm. The injury report of Ram Karan Ex. Kha-1 shows that he had sustained the following injuries :- 1.Abrasion 1/4" x 1/4" in the upper third of the left arm. 2.Multiple abrasion 1" x 1/4" on the back of the upper part of the left side chest. 3.Abrasion 1/2" x 1/.4" on the left hand. 4.Abrasion 1/2" x 1/4" on the vernal aspect of the first web of the left hand. 5.Abraded contusion 2" x 1/2" on the back of the upper part of the right side chest. The injuries of the accused Ram Karan (now dead) and Daya Shanker had been got examined by the police. 11. 4.Abrasion 1/2" x 1/4" on the vernal aspect of the first web of the left hand. 5.Abraded contusion 2" x 1/2" on the back of the upper part of the right side chest. The injuries of the accused Ram Karan (now dead) and Daya Shanker had been got examined by the police. 11. The defence witness Krishna Murari Pandey (D\V-2) deposed that he had seen Set Bahadur armed with spear and Dan Bahadur, Ram Sant, Ram Mohan and Lallan Singh armed with lathi. Set Bahadur assaulted Ram Komal with spear. They all caused injuries to him, Daya Shanker and Ram Karan when they went to save him. He had got himself medically examined at Jaunpur. In the cross-examination it was suggested to him that he was not present at the scene of occurrence and he had got fictitious injury report prepared by the doctor. He was not asked any question with regard to the details of the incident inspite of the fact that the appellants had in connection with the cross-examination of each of the prosecution witnesses suggested about his presence and also the injuries inflicted on him from the side of the complainant and also Dan Bahadur and Set Bahadur. 12. We have examined the evidence adduced in this case. The Additional Sessions Judge appears to have been very much swayed by the circumstance that Set Bahadur on the side of the informant had died. He did not give due consideration to the fact that Ram Komal had been inflicted punctured wound on the chest and lacerated wound on the left pleura, Krishna Murari had been inflicted lacerated wound over the head, Daya Shanker had been inflicted two lacerated wounds on the head and Ram Karan aged 70 years had been given at least five lathi blows. The deceased Set Bahadur it was argued on behalf of the appellants had been armed with spear and when he was so furious as to cause several injuries on vital parts on the side of the appellants, it could not be expected of them as the saying goes "to weigh in golden scales" the precise force needed to repel the danger. The first information report shows that Set Bahadur had intervened when the accused attacked the informant Ram Mohan. There is no such allegation in it that earlier the appellants had abused him. The first information report shows that Set Bahadur had intervened when the accused attacked the informant Ram Mohan. There is no such allegation in it that earlier the appellants had abused him. Ram Mohan in his statement tried to improve the prosecution story. He pointed that at first the accused abused him and when he remonstrated as to why they were calling him bad names inspite of his old age they started inflicting injuries on him necessitating intervention of Set Bahadur and Dan Bahadur. The injury report of Ram Mohan as pointed above indicates that he had sustained two injuries on the right fore-arm. If the incident would have originated in the manner alleged in the first information report by Ram Mohan, he would not have just received two minor injuries on his right fore-arm when all the five accused were shown to have previously come to assault him and not Set Bahadur and Dan Bahadur who according to the prosecution had been assaulted only as they intervened to save Ram Mohan. The superficial injuries of the informant Ram Mohan in contrast with the much graver injuries of Set Bahadur and Dan Bahadur inflicted within two to four minutes as admitted by Dan Bahadur (PW-2) could be said to be more consistent with the defence stand that they three had come to settle their scores with Ram Karan and others between whom both civil and criminal cases were going on. The first information report it cannot be lost sight of in this connection does not say that Set Bahadur and Dan Bahadur had reached near the house of Ram Mohan accidentally while they were going to buy bullocks. It was only at the stage of evidence that it was suggested that they were going to buy bullocks. It appears to us to be too much of a coincidence that both Dan Bahadur and Set Bahadur who also were aggrieved with the accused could be passing by the house of the informant at the nick of the time when the accused were shown to have come to assault him. 13. It next is to be seen that the number of injuries caused by spear on the side of the accused rule out the suggestion on behalf of the prosecution that they were as a result of inadvertence on the part of the accused themselves. 13. It next is to be seen that the number of injuries caused by spear on the side of the accused rule out the suggestion on behalf of the prosecution that they were as a result of inadvertence on the part of the accused themselves. Devraj gave out that Ram Komal was hurt by his own spear while turning. He did not state about the other injuries on the side of the accused which could be by spear. The accused suggested that Set Bahadur was carrying the spear. The prosecution does not say that any one on their side had a spear. The Additional Sessions Judge does not appear to me to have been justified in inferring that no spear had been used from the side of Ram Mohan, Set Bahadur and Dan Bahadur and that some of the injuries on the side of the accused were fabricated particularly when the prosecution witnesses Ram Mohan and Dan Bahadur inspite of being confronted with the injuries of all the accused and also of Krishna Murari did not deny that they had sustained them but merely pleaded ignorance about them. 14. The total number of injuries on the side of the accused was fourteen. Three of them were on the bead and two on the chest. From half a dozen of them blood had been ozing out. The Additional Sessions Judge could not be said to be justified in treating them insignificant. The fact that Krishna Murari got himself examined at Jaunpur by Dr. Balwant Singh, Assistant Professor in Surgery in the Tilak Dhari Maha Vidyalaya for fear of being arrested is quite probable. It is not free from doubt that Set Bahadur, Dan Bahadur, Ram Mohan were only on the defensive. Coming now to the place of the incident, it follows from the site plan that Ram Mohan Tewari had no door to the east of his house near the well. On the other hand the Investigating Officer in between the house of Ram Mohan Tewari and the well has shown the cattle troughs of Ram Karan accused. The Investigating Officer has noted the distance of the house of Ram Karan to be fifteen steps from the well and the distance of the door of the house of Ram Mohan informant to be twelve steps. The Investigating Officer has noted the distance of the house of Ram Karan to be fifteen steps from the well and the distance of the door of the house of Ram Mohan informant to be twelve steps. The informant Ram Mohan in his statement pointed the distance of his house from the well where the incident took place to be ten steps. The same is the distance according to him of the house of Ram Komal accused from it. The site plan shows the well to be facing the door of the house of Ram Karan whereas the door of the house of Ram Mohan Tewari is not on the side of of the well. Set Bahadur, Dan Bahadur and Ram Mohan Tewari could not have run towards the house of the accused if they would have been on the defensive. On the other hand if Ram Karan Tewari and the other accused would have attacked Ram Mohan Tewari, Set Bahadur and Dan Bahadur, they were likely to have run to the north of the house of the informant. The Additional Sessions Judge has not taken note of the fact that the incident took place on land containing the cattle through of Ram Karan deceased accused and not on the sahan of Ram Mohan PW 1. The proximity of the house of Ram Mohan Tewari from the place where Set Bahadur was found lying dead as a result of the injuries should not have necessarily led him to the conclusion that the accused had gone to attack Ram Mohan Tewari at his house. The site of the incident on which there is no opening of the house of Ram Mohan does not at all support the prosecution version that the appellants were the aggressors. The prosecution it is obvious has not come with full and true facts in the first information report. The conduct of Ram Mohan PW 1 in concealing important facts leads us to the conclusion that the incident did not originate in the manner alleged by the prosecution and it is not free from doubt that Set Bahadur, Dan Bahadur and Ram Mohan were only on the defensive. 15. It now is to be seen that the prosecution has not examined any independent reliable witnesses of the vicinity. IT is not the prosecution case that no independent witness was available. 15. It now is to be seen that the prosecution has not examined any independent reliable witnesses of the vicinity. IT is not the prosecution case that no independent witness was available. On the other hand Ram Mohan PW 1 has admitted that besides Prahlad there were ten to fifteen persons of the village present near the scene of occurrence but he could not tell their names. The Additional Sessions Judge has not considered it to be of consequence that no independent witnesses had been examined. The approach of the Additional Sessions Judge could not be said to be justified in the circumstances of this case for there are sufficient injuries on the side of the accused who have set up a counter-version which could no be lightly rejected. The conduct of the prosecution in concealing the identity of the natural and independent witnesses further could not be ignored. 16. We shall now proceed to examine whether the accused could justifiably take the plea of the right of private defence. It is settled law that the accused in this connection are not required to prove the circumstance justifying the exercise of the right of private defence in the manner the prosecution is called upon to prove a charge against the accused. It is enough for the accused if he brings on record evidential material before the court sufficient for a prudent man to believe the existence of such circumstances which justify the exercise of the right of private defence and the same could be established by merely showing the balance of the probabilities in this regard in his favour. The circumstances of the case do show that there could be threat to the life of some of the accused persons because of injuries inflicted on their vital parts by also a dangerous weapon such as spear. The causing of the death of Ram Set in the instant case could not necessarily lead to the conclusion that it was not justified on the basis of evidence on record. The causing of the death of Ram Set in the instant case could not necessarily lead to the conclusion that it was not justified on the basis of evidence on record. The learned Additional Sessions Judge in his judgment has referred to the decision of the Supreme Court in State of U. P. v. Ram Swarup, AIR 1974 SC 1570 , to hold that the plea of the accused about their right of private defence was unjustified but did not elucidate with justification before arriving at the above finding as was necessary that the accused were guided by retribution. The decision in Barati v. State of U. P., AIR 1974 SC 839 on which reliance has been placed by the Additional Sessions Judge has also very limited relevance for both the appellants do not dispute that they were not present. They only tried to show that the prosecution from the start had made an effort to conceal the injuries on their side and in that very context had denied the presence of Krishna Murari. The Additional Sessions Judge had found the case against Vijay Shanker and Sadho alias Sabha Shanker to be not proved. This finding of the Additional Sessions Judge indicates that he does not consider the prosecution witnesses to be of the wholly reliable category. He referred to Deoraj Singh as being not quite closely releated to Dan Bahadur Singh and as such trust worthy. The conclusion of the Additional Sessions Judge is not quite justified. Deoraj Singh on his own showing was a chance witness. He had given false and improbable explanation about the spear injury of Ram Komal. In the absence of any corroborative documentary evidence we cannot safely presume that he would have been going to his School at the time of the incident when he admitted that it was closed on that date. Deoraj Singh was certainly not a safe witness to be relied upon even by soft standards. 17. The Additional Sessions Judge had ignored the material omissions in the first information report relying upon the decision in Padda Narayana v. State of Andhra Pradesh, AIR 1975 SC 1252 . Deoraj Singh was certainly not a safe witness to be relied upon even by soft standards. 17. The Additional Sessions Judge had ignored the material omissions in the first information report relying upon the decision in Padda Narayana v. State of Andhra Pradesh, AIR 1975 SC 1252 . He again had failed to appreciate that the decision in the above case could not be taken benefit of for the origin of the incident had to be unravelled and not kept shrouded in mystery when there were circumstances which justified the exercise of the right of private defence. We also do not find that the instant case could be held to be one of free-fight. The result of the above discussion is that the appellants Ram Komal alias Komal and Daya Shanker could not be held guilty of the charges under sections 302 and 307 of the Indian Penal Code read with section 34 thereof. ORDER 18. The appeal is allowed. The judgment and order of the III Additional Sessions Judge convicting the appellant Ram Komal alias Komal and Daya Shanker under sections 302/34 and 307/34 of the Indian Penal Code and sentencing each of them to imprisonment for life and to seven years rigorous imprisonment respectively on the above counts are set aside. The appellants Ram Komal alias Komal and Daya Shanker are acquitted of the above charges. They are on bail. They need not surrender to their bail bonds which are discharged. Appeal allowed.