JUDGMENT H.C. Mittal, J. - Appellant Chhote has been convicted of the offence under Section 302, I.P.C. and sentenced to life imprisonment and a fine of Rs. 500/and under Section 323/34, I.P.C. and sentenced to R.I. for six months, Ghasite has been convicted of the offence under Sections 307/323/34, I.P.C. and a sentence of R.I. for 7 years and a fine of Rs. 500/and another R.I. for six months, and Jamuna and Munshi Lal have been convicted for the offence under Section 323, I.P.C. and sentenced to six months' R.I. by a judgment and order dated 22.12.78 in S.T. No. 292 of 1977 by the Additional Sessions Judge, Kanpur Dehat. Aggrieved both by conviction and sentence, they have come up in appeal. 2.The facts giving rise to the prosecution may be briefly narrated in the form that one Daya Shanker died on account of stab injury and his brother Kripa Shanker received simple hurt in the nature of Stab wound on 17.4.1977 in village Shekhupur P.S. Shivli District Kanpur Dehat. A first information report about the occurrence was lodged at the police station at 8.20 p.m. by Kripa Shanker, the distance of Police Station being 9 miles. 3.The prosecution version in respect of the occurrence was that in the said evening Anil Kumar son of another their brother Hari Shanker was grazing cattle in the river bed. The accused persons also arrived there with their cattle and mixed them with the cattle of Anil Kumar, to which he objected. The accused tried to assault Anil Kumar and he in order to save himself ran around amongst the animals. In the meanwhile Kripa Shanker and Daya Shanker, who were going somewhere else also reached the place of occurrence and challenged. Whereupon Munne (Munshi Lal) exhorted that he had come for help and should be done to death. Thereupon Ghasite accused caused Barachhi injury while Jamuna accused caused Lathi injury to Kripa Shanker in the meanwhile Daya Shanker also came and tried to save his brother. Whereupon Munshi Lal again exhorted to kill and Chhote gave him a blow of Barachhi in the chest. The occurrence was seen by several persons of the village, but the accused however left crossing the river to their village. Daya Shanker was attempted to be taken to the hospital or police station but died in the way. Whereupon Munshi Lal again exhorted to kill and Chhote gave him a blow of Barachhi in the chest. The occurrence was seen by several persons of the village, but the accused however left crossing the river to their village. Daya Shanker was attempted to be taken to the hospital or police station but died in the way. The defence version, on the other hand, was that the cattle of Kripa Shankar and Daya Shankarhad gone to the barnes of Chhote and caused suitable damage. Whereupon Chhote, Ghasite and others tried to take them to the cattle pound. In the meanwhile Daya Shanker and Kripa Shankar arrived and tried to snatch the cattle. They were armed with gun and when the same was aimed at towards the accused persons, they reacted in self defence and caused minor injuries. There was neither any intention nor pressure to cause death. 4. We have heard the learned counsel for the appellants and the Government Advocate at length and gone through the record of the case that is, the evidence of the witnesses. We will frankely say in the very begining that no case for self defence could be said to be established, but the defence is not required to establish a case to the hilt and if the defence succeeds in creating an impression that the case put forward by the prosecution is not wholly true and there was another possibility of the occurrence having taken place in the form suggested by the accused. The defence will be entitled to benefit thereof. It may be true that when the excemptions are to be proved to the general law, the burden under section 106 of the Evidence Act may be upon the accused but where the accused is able to show a possibility of the occurrence with a major difference from that suggested by the prosecution that will not be a burden of defence but a weakness of the prosecuttion for which the defence will get benefit 5. In the instent case, the prosecution had examined P.W.1 Kirpa Shankar and P.W.2 Anil Kumar as witnesses of the occurrence. The other witnesses were P.W.3 Raghuvanshi Kushwaha. Who had scribed the first information report, P.W.4 Dr. In the instent case, the prosecution had examined P.W.1 Kirpa Shankar and P.W.2 Anil Kumar as witnesses of the occurrence. The other witnesses were P.W.3 Raghuvanshi Kushwaha. Who had scribed the first information report, P.W.4 Dr. H.S. Agarwal, who had conducted the medical examination of Kripa Shankar as well as the post mortem examination of Daya Shankar, P.W.5 Lallan Rai S.I. who had investigated the case and P.W.6 Head Constable Moharrir Chandra Kesh Singh. The defence had also examined D.W.1 Reghuvir Singh and D.W.2 Ajai Pal Singh. 6. The first factor to be seen is that though it was mentioned in the first information report that there were several witnesses of the occurrence, none was examined. It is true that there has not been any allegation by any party for the motive of the crime and there is not even a suggestion of even bad blood yet the fact remains that after the incident in whatever form or the two versions it may have happened, there is now bad blood between the partiesIn such circumstances, it could have been advisable to examine some independent witnesses in addition to Anil Kumar and Kripa Shankar. 7. It may be true that Kripa Shankar P.W.1 is an injured witness and there is a guarantee of his presence at the time of occurrence but at the same time, it could not be a guarantee for his respect to the oath that he had taken. If there were any reason, he could have told alias in making false prosecution and as we shall discuss below, there was some reason for it after Daya Shankar had died in the alleged occurrence. It need hardly be said that death of a person is a factor, which cannot be concealed or tolerated and once the death occurs the matters are to be taken to the police station and if possible, shape can be given to the facts. 8. Since the occurrence is said to have begin with Anil Kumar, we would like to begin with his evidence. He had stated as P.W.2 that he was grazing his cattle at about 5.30 p.m. on 17.4.77 in the river bed when Ghasite, Chhote, Jamuna and Mannoo came there and mixed their cattle with his cattle, to which he objected, Does it sound reasonable. He had stated as P.W.2 that he was grazing his cattle at about 5.30 p.m. on 17.4.77 in the river bed when Ghasite, Chhote, Jamuna and Mannoo came there and mixed their cattle with his cattle, to which he objected, Does it sound reasonable. A river bed is not the property of any one nor the residents of the village on one side or the other have any exclusive right. There could be no occasion for any objection of this nature and even if it was made there could not be any occasion for driving away the cattle of any person. We do not wish to say anything about the resonableness of the action of Anil Kumar but the impression is that this was a concoeted story in itself. Even if, there was a chase by accused persons as suggested by this witnesses there could be no occasion for running from it and raising an alarm. Furthermore, it would be only matter of chance that his uncles reached that place with bullockcart and heard his cries. With this little take as to what had happened there, Ghasite and Jamuna are said to have given Barachhi and Lathi blows to Kripa Shankar and then Barachhi blow is said to have been given by Munnoo to Daya Shankar without any word and simply for coming to the spot. This sort of behaviour without any earlier motive or even an impression of bad blood is rather inconnceivensble. In his crossexamination it was shown that fodder is available on both sides of the river bed why should any body come to the other side then? He also stated that the accused did not give him even a single blow when he was running amongst animals. If there was any ill feeling with the accused, it was primarily against Anil Kumar, and when they did not assault Anil Kumar, there could not be any occasion for giving a blow to his uncles, who had just come to the spot to know as to what was happening. No blood was found at the spot. P.W.2 Anilkumar had also stated that no body went to his home to communicate nor the ladies or children came to the spot from home. No blood was found at the spot. P.W.2 Anilkumar had also stated that no body went to his home to communicate nor the ladies or children came to the spot from home. His statement that he did not know as to how long Kripa Shankar and Daya Shankar remained lying there because he has taken back to graze his cattle does indicate that he was not at the spot atall. It is rather inconceivable that a nephew whose uncles have been given fatal blows would gave more for his cattle ignorning the injured. According to this witness the Investigating Officer had attempted to find blood stain spots at the spot but there was only cowdung and urine 9. P.W.1 Kripa Shankar had also stated about the occurrence. In his crossexamination he stated that he did not go to the bed of river, and he did not know if there were other cattle there or not. He also stated that the accused persons had been grazing their cattle for the last five or six years. He was not sure if blood had falls at the spot where Daya Shankar was made to lie. Possibly realising the weakness, he also stated that Girja had put a towel at the spot but according to P.W.2 Anil Kumar, Girja had not even come. It has also been; made out in the crossexamination that Daya Shankar was wearing only an underweer and Beniyan. This is not the usual dress for going to some place in bullock cart but may be a dress for a person who received information about his cattle being taken to cattle pond and runs out immediately. His statement that first information report was scribed by Raghuvanshi while keeping his paper on thigh is not in conformity with the shape of the first information report. 10. P.W.3 Raghuvanshi, scribe of there report, had come to prove Ex. Ka1. However, it appeals that he had acted as an eye witness to the Investigating i Officer. We cannot understand why the investgating officer while preparing statement of fact would includes a fact which had not been narrated to him. The suggestion has been that the report was prepared at the police station in consultation with the police. 11. Ka1. However, it appeals that he had acted as an eye witness to the Investigating i Officer. We cannot understand why the investgating officer while preparing statement of fact would includes a fact which had not been narrated to him. The suggestion has been that the report was prepared at the police station in consultation with the police. 11. In view of the above discrepancies in the evidence, it appears that the occurrence might have take place in the form suggested by D.W.1 Raghuvir and it has been given in different shape in order to fasten the liability upon the accused persons. Even if that is not prove to the hilt, it does create a doubt about the prosecution version and consequently this appeal should succeed. 12. The learned counsel for the State has requested for leave to appeal under Article 136 of the Constitution of India. In view of the above discussions, we do not consider that any material question of law of general importance arises in the appeal and consequently there is no occasion for such request. In any event the leave applied for is to be refused. 13. The appeal is allowed. The conviction and sentence recorded by the learned Sessions Judge are hereby set aside. The appellants shall stand acquitted of the charges framed against them. They are on bail. Their bail and bonds are cancelled and sureties discharged.