K. NARAYAN, J. ( 1 ) THIS is an appeal by ten persons. During pendency of the appeal appellants-Nawab Singh and Bhagat Singh have died and the appeal has abated in respect of them. The other appellants are, Pritam Singh, Chhotey Singh, Malkhan Singh, Kaptan Singh, Rajpal Singh, Ganga Singh, Jeet Singh alias Jeewan Singh and Babu Ram and the appeal has been heard on their behalf. All the abovementioned accused appellants were held guilty of offences under Ss. 302/149, and 307/149, I. P. C. and sentenced to imprisonment for life and imprisonment for three years under the two counts. Appellants Jeet Singh, Kaptan Singh, Rajpal Singh, Ganga Singh and Babu Ram were also held guilty of rioting under S. 148, I. P. C. and sentenced to R. I. for two years while appellants Nawab Singh, Bhagat Singh, Pritam Singh, Chhotey Singh and Malkhan Singh were sentenced to R. I. of 1 l/2 years each under S. 147, I. P. C. ( 2 ) AN occurrence had taken place in village Indrakha Jagania, P. S. Sindhauli, District Shahjahanpur in the morning of 5-2-76, in which one Teja Singh was murdered and few others had received injuries. Two reports were lodged in respect of the occurrence one by Balwant Singh, which relates to this case and the other by Jeet Singh alias Jeewan Singh who is an accused appellant. The report of Balwant Singh was under Ss. 148, 452, 302, I. P. C. While that of Jeet Singh was in respect of the offences under Ss. 147, 148 and 324, I. P. C. Both the reports were lodged within a reasonable time and, in fact, there has not been any dispute about the time and place of the occurrence, which was around 8 a. m. ( 3 ) IN order to properly appreciate the respective versions, it will be worthwhile to show the inter se relationship of the assailants, deceased, other injured of the case and the witnesses. One Atar Singh had two sons if not more namely, Santa Singh and Bhagat Singh (accused dead ). Santa Singh had five sons, if not more. They are Pritam Singh, Jeet Singh alias Jeewan Singh accused, Teja Singh deceased and Phumman Singh and Balwant Singh P. W. 2 and P. W. 8. Balwant Singh was also informant. One Atar Singh had two sons if not more namely, Santa Singh and Bhagat Singh (accused dead ). Santa Singh had five sons, if not more. They are Pritam Singh, Jeet Singh alias Jeewan Singh accused, Teja Singh deceased and Phumman Singh and Balwant Singh P. W. 2 and P. W. 8. Balwant Singh was also informant. Kishan Singh is also an uncle of Teja Singh and has at least one son Balkar Singh. Both Kishan Singh and Balkar Singh were mentioned to have come from Sitapur on the date of occurrence but they have not been examined. The presence of these two -father and son - is quite clear from the fact that they were mentioned as accused in the first information report Ex. Ka-9 of Jeet Singh. ( 4 ) THE other case commenced on the report of Jeet singh has ended in acquittal. The other accused Nawab Singh, Chhotey Singh and Kaptan Singh are sons of the Prahlad. Baburam was said to be a servant of Nawab Singh and others while Ganga Singh, Malkhan Singh and Raj Pal Singh were said to be the relations of Nawab Singh. ( 5 ) THE report of Balwant Singh conveyed that they had in all 75 Bighas of land in this village. His uncle Bhagat Singh, mother Smt. Dhankaur and brothers Jeewan Singh and Pritam Singh accused had already been separated from Balwant Singh and that they had been given 28 Bighas of land, out of above 75 Bighas. The sale deeds in respect of land, however, was in the name of Teja Singh and Phumman Singh, which was not liked by Bhagat Singh, Pritam Singh and others. On a land lying infront of their residence Pritam Singh, Jeet Singh and others had planted onion and chilly in an area of 3 Latha and thus encroached upon this area of Balwant Singh etc. despite protest of Teja Singh. On the date of occurrence, Teja Singh had come back from Bhisalpur late in the night and in the next morning seeing that the area had been irrigated he again objected to Bhagat Singh and Pritam Singh, whereupon there was some altercation. Kishan Singh and Balkar Singh also tried to intervene but they were also brushed aside by the accused persons. After some time. Kishan Singh and Balkar Singh also tried to intervene but they were also brushed aside by the accused persons. After some time. Jeevan Singh went to Kaptan Singh who is Pradhan of the village and whose land Jeewan Singh also cultivate on Batai and came with Kaptan Singh holding Kanta, Nawab Singh, Chhotey Singh, Ram Pal Singh and Ganga Singh holding Ballams, and Baburam Dhobi holding the S. B. B. L. Gun of Kaptan Singh. Jeewan Singh also held Ballam. They all assaulted while Kaptan Singh was proclaiming that they were harassing his Bataidar and should be killed. During the assault, Teja Singh used Kripan to save himself and Phumman Singh and Balwant Singh used their Lathis. There were many injuries to several persons. Rajpal Singh fired with his Tamancha while Babu Ram fired with his gun which struck Teja Singh and he fell on the Mohara. Other witnesses had also arrived. Leaving the dead body of Teja Singh, Balwant Singh and Balkar Singh had gone to lodge that report. ( 6 ) THE story of the cross-case was to the effect that in the morning of the date of incident, Jeet Singh and Pritam Singh, were planting the onions on the land in question when Teja Singh, Kishan Singh, Balwant Singh, Balkar Singh etc. came armed with Lathis and sword. There was an alteration and in the meanwhile Kaptan Singh, Raj Pal Singh, Malkhan Singh, Bhagat Singh and others also arrived. Despite their persuasion, there was a fight resulting in injuries to both sides. There was no mention of the use of gun or death of Teja Singh in this report. ( 7 ) THE prosecution had examined P. W. 1 Dr. Sushil Chandra Vaish who had conduted the post-mortem examination upon the body of Teja Singh. Since there is no dispute about the time of death etc. or the fact that Teja Singh had died in this occurrence, nothing much would turn upon it. However, one thing we would like to mention that though the first information report narrated some three fires in all, the nature of injuries as shown in the post-mortem examination report as well as the photo Lash prepared by the Investigating Officer show that possibly there was only one gun shot resulting in injuries on both things, which are generally not very much apart. At best there could be two and in no case more than that. ( 8 ) EX. Ka-3 to Ka-5 and Ka-11 to Ka-17 are the injury reports of Phumman Singh, Balwant Singh, Balkar Singh, Malkhan Singh, Nawab Singh, Jeet Singh alias Jeewan Singh, Bhagat Singh, Rajpal Singh, Kaptan Singh and Pritam Singh. They all had injuries of various demensions and nature. These injury reports were proved by P. W. 3 Dr. Ram Prakash Gupta, and P. W. 4 Dr. Shyam Swarup Trivedi. It also appears that some injury reports were admitted. Be that whatever it may, as the fact remains that there was some sort of fight. ( 9 ) THE other witnesses examined were P. W. 5 Head Constable Ramshankar Sharma, P. W. 6 Deoraj Singh who had prepared police papers and constable Shiv Sagar P. W. 7 who had escorted the dead body P. W. 10 Hari Singh Tomar had investigated the case. The evidence of occurrence was in the statements of P. W. 2 Balwant Singh, the informant, and P. W. 8 Phumman Singh. The learned trial Court after considering the evidence held the appellants guilty and recorded conviction and sentences. Aggrieved by the same, there is an appeal. ( 10 ) AS usual, the first argument advanced on behalf of the appellants was that of self-defence of person and property both. The second argument was also directed to show that the facts stated by the prosecution witnesses were not the truth and the occurrence has been so badly moulded that it was difficult to work the truth out of it. ( 11 ) BEFORE proceeding with the above aspect it may also be mentioned that the two cases have not been exactly the cross-cases inasmuch as the place of occurrence was not the same and obviously one party or the other was either shifting or at least had not stated true facts. When once the place of occurrence is shifted, the factors relating to defence of property became not available to the defence. In the instant case, the place of occurrence was a part of the sahan of the complainant and some of the accused. Though the dispute might have arisen from a difference in the matter of land, unless quarrel took place there, it could not be said that right of the defence of property was available. In the instant case, the place of occurrence was a part of the sahan of the complainant and some of the accused. Though the dispute might have arisen from a difference in the matter of land, unless quarrel took place there, it could not be said that right of the defence of property was available. Further more, in the case under appeal the story has been in the form that the accused persons had left the field where onion and chilly had been planted and then came back with the other accused and if that be true there would not be any occasion for saving the property but will be one for enforcing the right for which law will take a different view. thus the plea of private defence of property or person, will not be available to the of defence if the story of prosecution is made out. On the other hand if the contentions put forward by the prosecution are not proved, or the evidence is not reliable, there will be no occasion for the plea of private defence. ( 12 ) WE will next come to the evidence of the prosecution which mainly consisted of P. W. 2 Balwant Singh and P. W. 8 Phumman Singh. In this case, the interest of witnesses and relationship as already mentioned, are peculiar in themselves. Teja Singh is the deceased Pritam Singh and Jeet Singh, the two accused are real brothers of Teja Singh while P. W. 8 Balwant Singh and Phumman Singh are also real brothers of Teja Singh. The other person Bhagat Singh was also real uncle of these persons. It is in the light if this relationship that the evidence is to be seen. Though the other accused Nawab Singh and his relations and Baburam, their servant, are said to be interested in the accused Jeet Singh because the later cultivates the land of Nawab Singh and others as Batai-holder. The clash of interest between the accused and the victim brothers, is evident from the first information report itself, which conveyed that some 75 Bighas of land was acquired in this village, out of which some 28 Bighas of land was given to Bhagat Singh, Pritam Singh etc. , with whom mother Smt. Dhankaur was also living while Jeet Singh has taken his share of money. , with whom mother Smt. Dhankaur was also living while Jeet Singh has taken his share of money. It will be needless to go into details and suffice it will to say that there was a bad blood apparent from the first information report itself between these two groups of brothers and uncle and there was a demand for more land, rightly or wrongly, at the hands of Jeet Singh and Pritam Singh. Not only this, the land was recorded in the name of Teja Singh and Phumman Singh while the other brothers Jeewan Singh and Pritam Singh were aggrieved by this situation also. We will not proceed to appreciate the evidence. After stating about the earlier occurrence which had taken place at the field, Balwant Singh P. W. 2 stated that after about half an hour the accused came armed as mentioned above. This time Raj Pal Singh was mentioned to have had a Katta. For the first time, it was stated that Baburam by his gun and Raj Pal Singh with his Katta fired thrice upon Teja Singh. As already said above, the injuries of Teja Singh do not admit of three shots. In fact in the first information report, Raj Pal Singh was shown to have had Ballam only. In his statement Balwant Singh has taken the burden of having wielded Kripan which function in the first information report was given to Teja Singh. Though much cross- examination was diercted towards continuity of three Latha land and the level thereof, in view of the position that the fight according to this case took place in the residential portion, these facts would not obtain, except to show a bad blood between the parties, for which there is no doubt. He had also stated that he had caused injuries to Raj Pal Singh by his Kripan two in number, and during scuffle he was never face to face with Raj Pal Singh as a fighter. On the other hand if we look upon the injury report of Raj Pal Singh ex. Ka-15 we see no injury whatsoever in the back region. On the other hand if we look upon the injury report of Raj Pal Singh ex. Ka-15 we see no injury whatsoever in the back region. Not only this, there were five injuries and all abrasions on his person, and the abrasions were also measuring 1 1/2 cm x 2 cm on skull, abrasion 1 1/2 cm x 1/2 cm on the exterior surface of left index finger, abrasion 1 cm x 1/2 cm on exterior surface of right thumb, abrasion 2 cm x 1/2 cm on right palm and abrasion 1 cm x 1/2 cm on chest right side. These injuries would not admit of attack by the Kripan. He has not stated any thing as to how deceased Teja Singh got incised wounds. This was left to be supplied by P. W. 8 Phumman Singh who stated that Kaptan Singh assaulted Teja Singh with Katta, in addition to the firing of gun and Tamancha as mentioned by P. W. 2. Balwant Singh. Though this witness has also mentioned that Teja Singh was armless and Balwant Singh had Kripan, it cannot be accepted in view of the fact that it was not stated even to the Investigating Officer. It also appears from his statement under Section 161, Cr. P. C. with which he was confronted that he had not stated to the Investigating Officer about the use of Bhala/ Kanta by accused Raj pal Singh. ( 13 ) IN view of the above developments in the case, it appears that there was some sort of fight between the parties, none of them are coming with clean hand and there has been an attempt to make improvements and alterations in the happenings. These developments have been so badly mixed with the real occurrence that it is difficult to sort them out, and it will not be safe to consider the witnesses reliable and the conclusion of the learned Sessions Judge in accepting their testimony cannot be considered to have been a very correct one. ( 14 ) THE so called admission, if it can be so said narrated in the first information report of Jeet Singh about the occurrence also cannot be read in evidence for two reasons. Firstly it does not seem to have been so put to the accused in the examination under Section 313, Cr. ( 14 ) THE so called admission, if it can be so said narrated in the first information report of Jeet Singh about the occurrence also cannot be read in evidence for two reasons. Firstly it does not seem to have been so put to the accused in the examination under Section 313, Cr. P. C. and, secondly, if it is to be accepted it is to be accepted as a whole and in that event the place of occurrence will be quite different. It may also be mentioned that the place of occurrence is not very well fixed in view of the statement of P. W. 5 that no blood had fallen anywhere despite these injuries. ( 15 ) THE other witnesses named in the first information report have not been examined. The more material and trustworthy witnesses could have been Kishan Singh and his son Balkar Singh whose presence is undisputed and who have not been injured, have no interest in the property in this village and are equally away in degrees. Failure to examine them without any proper reasons derogates the value of the prosecution evidence. ( 16 ) IN the result the appeal succeeds and the accused-appellants should be given a benefit of doubt and acquitted of the charges. ( 17 ) THE appeal is allowed. The conviction and sentence recorded by the Sessions Judge are hereby set aside and giving the benefit of doubt, the accused-appellants shall stand acquitted of the charges framed against them. They are on bail. They need not surrender. Their bail and bonds are discharged. Appeal allowed. .