G. D. DUBE, J. ( 1 ) THIS appeal has been preferred by the State of Uttar Pradesh against the judgment and order of Sessions Judge, Gorakhpur acquitting the respondents of the charges levelled against them under section 302 of I. P. C. ( 2 ) THE prosecution had alleged that at 2 p. m. on 7/12/1974 Muneeb P. W. 1 was taking water from the tubewell of Babuni for irrigating his wheat crop. Dhari, Janaki and Tilak Harijan stopped the flow of wafer. Dhari is a Halwaha of Adalat Dhobi. Muneeb requested Dhari to allow the water to go to his field. Dhari did not agree but stated that his Master has directed him (Dhari) not to allow the water to flow through his field. Meanwhile Dhari went to the house of Adalat and narrated all the story adding salt and pepper to it. Thereupon Adalat became infuriated. Then he alongwith Vakeel, Prahalad, Ratti Dhobi, Dhari Harijan, Janaki harijan and Tilak Harijan came to the Sahan of the house of Muneeb situated in village Marharpur police station Barahal Ganj district Gorakhpur. Adalat, Janaki and Tilak exhorted others to attack Muneeb and his family members. Thereupon Dhari gave a Lathi blow on the head of Muneeb and the (Muneeb) fell down. Bechan, grand father of Muneeb, came to save him then Adalat gave a Pharasa blow which hit on the head of Bechan. Kumar also came to save his father. Samrathi gave a lathi blow to Kumar due to which he received head injuries. Prahalad also gave Lathi blow to Bechan. It has been alleged that on the alarm raised, by the witnesses several persons arrived at the spot. It has been stated in the report that complainants side had also wielded Lathi in serf defence due to which Samrathi had received injury. ( 3 ) AFTER the occurrence Muneeb went to Police Station Barhalganj and lodged report at 3. 20 p. m. same day. It is noteworthy that Samrathi has also lodged a report at 4 P. M. on 7th, December, 1974 in police Station Barhalganj. The injuries of Muneeb, Kumar, Bechan Dhobi and Samrathi were examined at the Government hospital of Barhalganj between 4 and 5 P. M. on 7/12/1974. One lacerated wound was found on the left side of the head 1 cm. above the left ear on the person of Samrathi. The injuries of Muneeb, Kumar, Bechan Dhobi and Samrathi were examined at the Government hospital of Barhalganj between 4 and 5 P. M. on 7/12/1974. One lacerated wound was found on the left side of the head 1 cm. above the left ear on the person of Samrathi. Bechan had received one incised wound 6-1/2 cm x bone deep on right side of head 12 Cm. above the right ear. There was another lacerated wound 4 cm. x 1-1/2 cm. on back of left side just above the root of the right finger of the hand. It is alleged that Bechan had died as a result of these injuries. ( 4 ) THE investigation of the case had been taken up by Ram Prasad Pathak P. W. 8. The post mortem examination of the dead body of Bechan has been conducted by Dr. B. G. Mathur. He had found the same injuries as noted at the time of examination at the hospital of Barhalganj. There was a fracture up to the middle of skull. No other abnormality was deducted in the body. ( 5 ) THE prosecution had examined P. W. 1 Muneeb, P. W. 4 Suryanath Chaudhari, P. W. 5 Bhagwan and P. W. 6 Kumar as eye witness. Remaining were formal witnesses. ( 6 ) THE accused had pleaded not guilty to the charge. It has been alleged in the defence that at the time of occurrence Dhari was going to plough the field of Adalat. As soon as he came out from Sehan of Adalat, Muneeb stopped him and said that he will not permit him (Dhari) to take bullocks through the passage in front of his house. Samrathi came forward and objected that this was a public passage, then Muneeb started abusing. Thereupon Bechan, Kumar and Kedar arrived with Lathi. They assaulted Samrathi with Lathi. When Samrathi raised alarm Udit Devi Chamn arrived at spot and wield Lathi in self defence. Accused had examined Nageena as a defence witness. ( 7 ) AFTER assessing the prosecution evidence the learned Sessions Judge disbelieved the prosecution story by saying that the prosecution story was not proved beyond doubt. The learned Session Judge also held that the injury was caused on the person of Bechan, Kumar and Muneeb in the exercise of right of private defence under section 100 of the Indian Penal Code. The learned Session Judge also held that the injury was caused on the person of Bechan, Kumar and Muneeb in the exercise of right of private defence under section 100 of the Indian Penal Code. ( 8 ) THE learned counsel for the state urged that the injury on the person of Samrathi were not of such a nature as to entitle the accused to cause the death of Bechan. It was also urged that assessment of evidence by the lower court was not proper. There was no justification to give benefit of doubt to the accused. It was urged that two conclusions firstly, giving the benefit of doubt to the accused and secondly, defining the action of the defence as an act in exercise of right of private defence, are contradictory to each other. ( 9 ) WE have heard Sri P. P. Srivastava learned counsel for the respondents. He urged that the appellate court should be very slow in disturbing the finding of fact arrived at any the Judge who had the advantage of seeing the witnesses. ( 10 ) THE topography of the place of occurrence as shown in site plan Ext. ka 19 indicates that the occurrence had taken place in front of the house of complainant. There is a Rasta in front of the house of complainant. These facts support the defence story that the occurrence had taken place when the accused was taking their bullocks to their field for ploughing. ( 11 ) P. W. 1 Muneeb has stated in his cross-examination that he had received Lathi injury on his hand. After received the Lathi injury he fell down. Thereafter he got up. No accused had made another attack on him. By that time the earlier cross-examination also reveals that by the time of causing of injury on the person of Muneeb the other person namely Bechan and Kumar had also received injuries. This witness stated that after he got up he went to his door and brought a Lathi. Thereafter he gave a Lathi blow to Samrathi. He admitted in answer to question 95 that he has received only one Lathi blow. He stated categorically in reply to question 98 that he has given a Lathi blow to Samrathi accused. This witness stated that after he got up he went to his door and brought a Lathi. Thereafter he gave a Lathi blow to Samrathi. He admitted in answer to question 95 that he has received only one Lathi blow. He stated categorically in reply to question 98 that he has given a Lathi blow to Samrathi accused. The deposition of P. W. I was recorded in a question-answer form as was provided at that time, thereafter amendment has been made and statements are now being recorded in a narrative form. ( 12 ) CONTRARY to the statement of Muneeb, P. W. 4 Kumar stated that he had inflicted a Lathi blow on the head of Samnathi. He stated that he had picked a lathi from the Sahan of Muneeb and gave a blow. He too had admitted that by the time Lathi blow was inflicted on the head of Samrathi most of the attack of the prosecution already had ended. ( 13 ) THERE is a glaringpmission on the part of Investigating office. Ram Prasad Pathak had admitted that he had not been on the field of Muneeb or the field of Samrathi and Dhari nor, he had seen any Nali through which water was allegedly flowing. The field ought to have been inspected by the Investigating officer. He would have noticed that water was flowing through Nali and Dhari has stopped it on the direction of its master. The prosecution will suffer on account of the material lapses on the part of Investigating officer. ( 14 ) NOTHING was stated in the examination-in-chief of anyone of the eye witnesses as to why the accused had stopped the flow of water in the Nali. On the other hand the case of the defence about the stopping plough and bullocks going to the field is probable. The site plan Ext. ka 19 shows that there is a chhappar, house, Nand, Charan and trees of the maker of this report towards East of the Rasta. Thus the Rasta runs in between residential Chappar and Nand Charan of the complainant. It is probable that the appellant thinking this Rasta to be part of their Saban might have stopped the bullock going through this alleged Rasta. ( 15 ) THERE are contradictory versions about the injury on the person of Samrathi. Thus the Rasta runs in between residential Chappar and Nand Charan of the complainant. It is probable that the appellant thinking this Rasta to be part of their Saban might have stopped the bullock going through this alleged Rasta. ( 15 ) THERE are contradictory versions about the injury on the person of Samrathi. Surnath Chaudhari, P. W. 4 had stated that when he arrived at spot he found that two parties were abusing each other. At that time Muneeb or Kumar had no Lathi in their hands. ( 16 ) P. W. 6 Bhagwan had stated in his cross examination that when he reached of the spot the Marpeets had not started. This witness had stated in cross-examination that when Bechan and Muneeb fell down there was no weapon in the hand of anyone of the prosecution witnesses. This witness stated that when Kumar and Bechan had already received injuries then Samrathi was beaten. This statement is also against the statement of Kumar and Muneeb stated above. This evidence, therefore, clearly shows that the prosecution witnesses have not stated correct fact. ( 17 ) THE opinion of the doctor who examined Bechan in the hospital at Barhalganj that injury NO. 1 was a incised wound is not at all correct. Only length has been shown. The breadth has not been shown. If a hard object. like Lathi strikes against skull then lacerated injury may look like avincised wound. In that situation the doctor ought to have examined the injury with the help of a magnifying glass. If injury is clear cut then it could be said that the injury is caused by a sharp edged weapon. The post-mortem report indicate that there was a fracture line upto the middle of skull. This could be caused by a Lathi blow. If injury No. 1 was a incised wound then doctor conducting the post mortem could have found a cut injury in the bony part of skull. ( 18 ) ON a close scrutiny of the injury report of Bechan it transpires that injury No. 1 was actually a lacerated wound. It appears that after perusing the injury No. 1 of Bechan the theory of assault with a pharasa was introduced in the prosecution story. ( 19 ) KEEPING in view the above facts we are of the opinion that the learned Sessions Judge has rightly found the prosecution evidence unreliable. It appears that after perusing the injury No. 1 of Bechan the theory of assault with a pharasa was introduced in the prosecution story. ( 19 ) KEEPING in view the above facts we are of the opinion that the learned Sessions Judge has rightly found the prosecution evidence unreliable. There was no, contradictory finding in coming to the conclusion that the defence story was probable and the appellant had inflicted injuries on Bechan in exercise of the right of private defence. Samrathi had a injury on the head. In that circumstance anybody would be in a fear that if the right of self defence is not exercised then a grevious injury or a fatal injury may be the result. Hence by giving a Lathi blow on the head of deceased the appellants can not be said to have exceeded their right of private defence. In Shivji Genu Mohita v. State of Maharashtra1, it was held that the High Court should give proper weight and consideration to such matters, as the views of the trial Judge as to the credibility of the witnesses, the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, the right of the accused to the benefit of any doubt and the slowness of the appellate court in disturbing a finding of fact arrived at by the judget who had the advantage of seeing the witnesses. ( 20 ) KEEPING in view the principles enunciated above we find that the views of the trial Judge were probable. They can not be deemed to be perverse or not based on the evidence on record. The appeal has not force. It is dismissed. Appeal dismissed. .