JUDGMENT K. Narayan, J. - Accusedappellant Lalji along with his father Duijram were tried oh the charges under Sections 307, 02, I.P.C. both read with Section 34, I.P.C. in S.T. No. 181 of 1976 by the IInd Additional District and Sessions Judge, Ghazipur. By the judgment and order dated 21.9.78, Duijram was acquitted of both the charges while accused appellant Lalji was found guilty and convicted for the offence under Section 302, I.P.C. and sentenced to undergo imprisonment for life. He has come up in appeal. 2. In an incident at about 7.30 p.m. in village Kheria (Rewaria) P.S. Bhurkura distt. Ghazipur one Sukh Nandan died on account of gun shot injuries and his daughter Km. Shyam Pyari received single pellet injury in thigh. The charges under the two sections were for this reason. The finding of the learned Sessions Judge was that there was only one fire of gun and hence no attempt on the life of Km. Shyam Pyari. He accordingly acquitted the accused of the charge under Section 307, I.P.C. 3. According to prosecution the occurrence had happened at about 7.30 p.m. when Sukh Nandan had gone to pee towards north of cattle shed. This was objected to by Duiji and after some exchange of hot words etc. Duiji Ram exhorted his son to kill Sukh Nandan, whereupon Lalji, his son, brought out his licensed gun and made a fire on Sukh Nandan. Thereupon the informant Sukhanu, brother of Sukh Nandan Km. Shyam Pyari, Algu Ram, Palku Ram, Kotal Ram, Chhedi Ram and Moti Ram also rushed with electric torches in their hands. Upon this, Lalji made another fire resulting in injury to Km. Shyam Pyari. The accused persons thereafter went inside their house and when the witnesses reached Sukh Nandan, he was dead. 4. .Though nothing was mentioned in this first information report, the evidence was to the effect that after the first fire upon Sukh Nandan, others who were still in the other portion of their house rushed towards north and threw missiles, that is, brickbats " etc. which struck Lalji and Duiji Ram also, the second fire was made by Lalji hitting Km. Shyam Pyari. 5. There was also other improvement in the case but that improvement has brought forward more facts. which struck Lalji and Duiji Ram also, the second fire was made by Lalji hitting Km. Shyam Pyari. 5. There was also other improvement in the case but that improvement has brought forward more facts. It has been clearly shown in the evidence of P.W. 2 Sukhanu that the houses of these two that is, Sukh Nandan and his brothers and Duiji Ram are ' quite close that of Duiji Ram being on the north. They had been litigating since long for various matters including a place where at present cattle shed of the informant is situated. 6. The defence contention on the other hand was that they had started construction of a well on the south of their housewhere a dug foundantion was seen by the Investigating Officer also. Sukh Nandan deceased in the evening of 12.8.76 came to the portion under construction and after some scuffle gave a beating to Duiji Ram in order to force demolition of the wall. Possibly he also demolished some portion of it. Upon this, his son Lalji came out and hearing the cries of his father and in order to save him he fired at Sukh Nandan while Km. Shyam Pyari who was standing on the Chani and Gur furnace received a stray pellet. For this incident as contended by the defence, a first information report also seems to have been lodged and the accused persons were also medically examined. There were contusions on their person which could not be of brick bats. It is in the light of this evidence that the prosecution story had to be seen ran only say that the trial court has believed it inasmuch as there has been acceptance of portion that there was only one the which finding has resulted in acquittal of Duiji Ram and acquittal of both for the offence relating to the injury of Km. Shyam Pyari. 7. The evidence of prosecution had to be seen in the light of above said case of the parties, it was obviously a case where the right of selfdefence was pleaded. In the circumstances, the time and place of death and nature of injuries have become almost admitted if it can be so said. 8. Shyam Pyari. 7. The evidence of prosecution had to be seen in the light of above said case of the parties, it was obviously a case where the right of selfdefence was pleaded. In the circumstances, the time and place of death and nature of injuries have become almost admitted if it can be so said. 8. It will be seen from the evidence of P.W. 3 Sukhanu, brother of the deceased, who according to his own statement, was living in jointness that there has been a long standing dispute between the parties about the extent of Sahan rights. The settlement of land as owner under Section 9 of U.P.Z.A. and L.R. Act has left many uncertain gaps and it may be unfortunate but it is a fact that those surveys had not been carried out and confusion prevails as the use of land appurtenant to a particular house was not so much marked during Zamindari period as it is not desired to be in order to get ownership. The matters have not been decided in between these parties except for uncertain type of compromise stated about by P.W.3 Sukhanu, in respect of bamboo clump. 9. The contention of P.W. 3 Sukhanu as was also said in the first information report was that the quarrel began on account of pee of Sukhanu on the place does not stand to reason. Even 7.30 p.m. in the month of August is late enough as an hour for seeing a person and objecting to sitting in that mode in that place. Sukh Nandan was not resident of that place and he was working somewhere else. He had come on leave. There can be no occasion for such objection in respect of such an outsider unless there was a mind to pick up quarrel itself. If this was a mood, the other would have gone to the place earlier. The exchange of hot words is also said to be in the form of incident of ownership of land, which will be equally applicable if the defence story that he had gone to fell the wall constructed was accepted. The idea that brickbate were thrown as missiles by the complainant party also does not inspire credence. When there is a fire, people usually run away and throwing of missiles is rather unusual. The idea that brickbate were thrown as missiles by the complainant party also does not inspire credence. When there is a fire, people usually run away and throwing of missiles is rather unusual. That will be just like fighting a person having sword with a middle in hand. It may also be mentioned that the availability of brickbate within the land of complainant group would itself be very unusual while the same could be more easily available even if not thrown by anybody over the land of the .accused as construction work was already going on there. In the crossexamination, it was also stated as a conclusion after reference to two contradictory statement that the deceased had some altercation with Lalji also and this was not his case from the very beginning. It was also made out in the crossexamination of this witness P.W. 3 Sukhanu that their backs were never towards them. If it was not so how is it that they had received injury on the back. One minor injury of missile could be while going back but more contusions would deny the theory of use of missiles. PW. 4 Moti Ram is also close friend and P.W. 5 Shyam Pyari is a girl aged hardly 11 years and also daughter of the deceased. In case where distinction between the two versions put by the complainant and the accused was so fine some independent evidence should have been' there. It will be more so because there has been, according to the prosecution, the contention of altercation before the occurrence itself which would obviously invite the other residents of the village to the spot. 10. In the circumstances, the version of the prosecution cannot be fully relied upon and there are more chances that the occurrence had taken place as suggested by the defence, in which case, they would be entitled to defend their person and property both. Since the entire story has not been put correctly by the prosecution, the defence could not be blamed for failure to establish his case to the hilt. 11. In result the appeal should succeed. 12. The appeal is allowed. The conviction and sentence recorded against Lalji by the trial court are hereby set aside. He shall stand acquitted of the charge framed against him. He is on bail. He need no surrender. His bail and bonds are cancelled and sureties discharged.