( 1 ) THIS appeal is directed against the judgment and orders dated 17-1-1981 recorded by the Sessions Judge, Ballia, in S. T. No. 178 of 1990, whereby the two appellants were convicted under Sections 302/34, IPC, as also under Ss. 323/34, IPC and were sentenced on the first count to Life Imprisonment and on the second count for R. I. for 6 months. The appeal was preferred on 20-1-1991 and on that very date Bhagwati Dayal Singh was directed to be released on bail. The prayer for bail on behalf of Ranjit Bahadur Singh was considered after receipt of the records and he too was allowed bail by an order of this Court dated 15-5-1981. ( 2 ) THE matter was heard before a Division Bench comprising of Hon. S. K. Verma and Hon. R. N. Ray, JJ. on 25-7-1996 and judgment was reserved. On 3-10-1996 a judgment of dismissal was recorded under the signatures of Hon. A. N. Gupta and Hon. R. N. Ray, JJ. although Hon. A. N. Gupta, J. was not in the bench which had heard the appeal. It appears that the judgment was dictated by Hon. R. N. Ray and on the relevant date he was sitting with Hon. A. N. Gupta, J. and through sheer mistake it was signed by Hon. A. N. Gupta , J. as well. when the matter was brought to the knowledge of the Division Bench comprising of Hon. S. K. Verma and Hon. R. N. Ray, JJ. their Lordship recorded an order dated 20-11-1996 in the following words;"we are satisfied that the grounds for recalling the judgment and order dated 3-10-1996 are justified. The judgment and order dated 3-10-1996 is, therefore, recalled. The appeal may now be listed before some other bench of which both of us are not members. " ( 3 ) IN terms of this order, the matter was listed before a Division Bench constituted by other Honble Judges and in the meantime the appellant Bhagwati Dayal Singh had died and Sri P. N. Misra, Advocate, brought this fact to the notice of the Court. A report from the CJM. Ballia, was called for and received and the report confirmed the death of appellant Bhagwati Dayal Singh. A report from the CJM. Ballia, was called for and received and the report confirmed the death of appellant Bhagwati Dayal Singh. When the matter came up before us the fact of death of Bhagwati Dayal Singh was taken note of and the appeal was heard in respect of Ranjit Bahadur Singh only. The complainant also appeared through his counsel and he too was heard. ( 4 ) AN application was there on record on behalf of the complainant for recalling the order dated 20-11-1996 on the ground that Hon. S. K, Verma, J. and Hon. R. N. Ray, J. could not recall a judgment recorded by Hon. A. N. Gupta, and Hon. R. N. Ray, JJ. We are of the view, however that a judgment signed and pronounced by the Honble Judges who heard it is legally a judgment and not otherwise. Thus, the judgment singed and delivered by Hon. A. N. Gupta, J. and Hon. R. N. Ray, J. was no judgment in the eye of law and, as such, the bench which heard it had every authority to recall that judgment which was nonest under the law. The point was not agitated under and the learned counsels made their submissions on merits. ( 5 ) THE incident which gave rise to the present case allegedly took place on 11-4-1980 at about 7 a. m. in village Bansdih, P. S Bansdih, District Ballia. The report was made on that very day at about 8 a. m. at the police station. 6 kms. away from the place of the alleged occurrence. The informant was one Yogendra Kumar Singh. Both Bhagwati and Ranjit stood named in the F. I. R. , which spoke of initiation of case Crime No. 51 for offences under Sections 307, 323 and 324, I. P. C. It was stated by Yogendra Kumar that he and his father were returning from Moma Pakarhia and on their way at a tank known as Fateh Sagar, Bagwati Dayal Singh and his son Ranjit Bahadur Singh were seen getting fish caught by other (in Hindi, "machhali MARWARAHE THE" ). These two persons were standing on the western bank of the tank, on the road. On seeing the complainant and his father, Bhagwati Dayal started abusing them and accosted them for having initiated another litigation over the tank, although one was already pending before the Board of Revenue. These two persons were standing on the western bank of the tank, on the road. On seeing the complainant and his father, Bhagwati Dayal started abusing them and accosted them for having initiated another litigation over the tank, although one was already pending before the Board of Revenue. The complainant retorted by saying that he would always take the help of law to establish his right and would fight till his right is vindicated. Bhagwati Dayal and his son asked the complainant to withdraw the fresh litigation and continued with their abuses. When objected, Bhagwati Dayal asked his son, "saale KO GOLI MAR DO TAAKI SAALAA MAR JAI" (shoot this guy and kill him ). Upon this, Ranjit Bahadur who was holdings a gun, opened fire on Bhagwan Singh who suffered injuries and fell down. Bhagwati Dayal was having a lathi with him. He struck the complainant with one end of the lathi under his left eye causing injuries to him. The sound of fire arm and the alarm of the complainant attracted Rama Tewari Rameshwar Singh, Ram Janam Koeri and others to the spot who had also seen the incident. They caught hold of Ranjit Bahadur but Bhagwati Dayal fled away from the spot. The aforesaid witnesses produced Ranjit Bahadur to the police chowki (outpost) at Bansdih and made him over to police. ( 6 ) IT appears a report was made by Ranjit Bahadur at the police station Bansdhi on 10-4-1980 at about 5. 30 hours against Bhagwan Singh, making allegations for offences under Sections 323, 504 and 506, I. P. C. concerning dispute over fishing in Fateh Sagar Tank. On 11-4-1980 also, at about 8. 30 a. m. a report was made by Smt. Ram Desai, wife of Bhagwati Dayal Singh at Bansdih police station against Bhagwan Singh, Yogendra Singh and two others for an offence under Section 323, I. P. C. for an incident at about 6 a. m. at the Fateh Sagar Tank. It was stated herein that while Ranjit was engaged in getting fish caught from the tank through fishermen, Yogendra and others came there, started fishing and started assaulting Ranjit Bahadur. It was further stated that Ranjit Bahadur was forcibly taken to the police station. Upon this report, a non-cognisable case was entered at the police station. It was stated herein that while Ranjit was engaged in getting fish caught from the tank through fishermen, Yogendra and others came there, started fishing and started assaulting Ranjit Bahadur. It was further stated that Ranjit Bahadur was forcibly taken to the police station. Upon this report, a non-cognisable case was entered at the police station. ( 7 ) IT appears further that Bhagwan Singh dies subsequently, and the case was converted to one under Section 302, IPC and after submission of the charge-sheet, charges under Sections 302/34 and 323/34, I. P. C. were framed against Bhagwati Dayal Singh and Ranjit Bahadur Singh and the aforesaid order of conviction and sentence was passed. To prove its case, prosecution had examined 14 witnesses. They were the complainant Yogendra Kumar Singh (PW), Rama Tewari (PW 2) who claimed to be an eye witnesses, Mukurdhar (PW 3) who spoke about the incident, Bane Narain Cheube (PW 4), who was an S. I. of police who had entered the FIR and had noted about prosecution of Ranjit Bahadur at the police station Dr. S. K. Khare (PW 5) who had examined the injuries of Yogendra Kumar, Ram Dasi and Ranjit Bahadur, Mohd. Razi Beg (PW 6) who was an S. I. of Police, who had conducted the inquest on the dead-body of Bhagwan Singh at Sadar Hospital, Ballia, Rajbali Tewari (PW 7) who had taken the dead body for post mortem examination, Dr. I. B. D. Dwivedi (PW 8) who had examined the injuries of Bhagwan Singh on 11 -4-1980, S. P. Pandey (PW 9) who was the Station Officer of police station Pakri and had investigated into the case in part, Ram Bachan Yadv (PW 10) who was a constable who had taken certain materials to the Forensic Research Laboratory, Lucknow Sahid Hussain (PW 11) who was an A. S. I. who had proved dispatch of certain fire arms, Ayodya Singh (PW 12) who was a constable and had recorded the production of Ranjit Bahadur Singh at the police station on 11-4-1980, Dr. Ramesh Sharma (PW 13) who had held post mortem examination on the dead-body of Bhagwan Singh and Naval Kishore Singh (PW 14) who has completed investigation and has submitted charge sheet. ( 8 ) THE two accused persons were examined under Section 313, Cr. Ramesh Sharma (PW 13) who had held post mortem examination on the dead-body of Bhagwan Singh and Naval Kishore Singh (PW 14) who has completed investigation and has submitted charge sheet. ( 8 ) THE two accused persons were examined under Section 313, Cr. P. C. A definite defence was taken by Bhagwati Dayal that he was not present at the spot as he was away to Ballia at that point of time. Ranjit Bahadur Singh took a defence that he was getting the fish caught at the relevant time and his double-barrel gun was with him. He had further stated that he had reared the fish in the tank and he was at the spot on 10-4-1980 to get the fishing done. Bhagwan Singh resisted him and absued him and also threatened him with dire consequences and a report was lodged to the police. On the next day (11-4-1980), when he had gone again to get the fish caught, Yogendra and others resisted him, abused him and assaulted him. He was having his gun with him. On his alarm his mother also came and she too was assaulted. The miscreants caught hold of his gun and in the scuffle there had been an accidental fire. Two defence witnesses were also examined and they were the doctor at Sadar Hospital, Ballia (the name is illegible even in the original deposition sheet) and D. W. 2 Dina Nath Misra a Bakshi of the Town Area, Bansdih. The doctor had conducted X-ray examination on the fore arm of Ram Dasi, wife of Bhagwati Dayal Singh and found a fracture on the ulna bone. The DW 2 was brought to disprove the claim of the witness that he was present at the spot for certain after death rituals of Mathura Hajjam. This witness proved the date of death of Mathura Hajjam to support the defence version that the plea of prosecution witnesses was not true. ( 9 ) EYE witnesses produced by the prosecuiton were PWs 1, 2 and 3. PW 1, Yogendra Kumar Singh, was the son of the deceased Bhagwan Singh. It is the admitted case that for the Fateh Sagar tank a suit was pending in which the deceased Bhagwan Singh a party and the daughter of Bhagwati Dayal Singh was also a party. PW 1, Yogendra Kumar Singh, was the son of the deceased Bhagwan Singh. It is the admitted case that for the Fateh Sagar tank a suit was pending in which the deceased Bhagwan Singh a party and the daughter of Bhagwati Dayal Singh was also a party. There had been a compromise in the suit in which the complainant Hari Ballabh Singh accepted Bhagwan as the owner of the tank, but no share was given in that compromise to Kalawati, daughter of Bhagwati Singh or to himself. Bhagwati Singh has taken a patta for the tank from Hari Ballabh Singh prior to the aforesaid suit. After the aforesaid compromise Bhagwati Singh had filed another suit through his daughter against Bhagwan and others. The suit was decreed prior to the incident concerned in this appeal. A revision was preferred by Bhagwan which was dismissed and thereafter the Board of Revenue was approached and the matter was pending there on the date of the instant incident. Bhawant Singh had also filed a suit against Kalawati and others for this tank which was pending on the date of the incident. There had been a proceeding under Section 145, Cr. P. C. between the parties in which Bhagwan Singh and others were defeated. A road runs by the western bank of this Fateh Sagar tank connecting Bansdih Kutchery with Rajgaon. By the side of this road, there is the house of Shardanand Misra and there were two temples of Lord Vishwakarma and Lord Shiva. On the northern side of the tank there was a sacred place of one brahmin and a pucca ghat was there on the tank. House of Kishun and Mangroo were nearby. The witness further stated that at about 7 a. m. he and his father Bhagwan were coming back to their village home from their dera (temporary abode) at Pakaria. When they were walking by the side of Fateh Sagar, they saw Bhagwati Dayal and Ranjit Bahadur getting fish caught by others and these two persons were standing on the eastern flank of the road. Ranjit was having his double barrel gun. Bhagwan was having a lathi. Mother of Ranjit Bahadur was sitting on the steps of the ghat. Bhagwaati Dayal started abusing Bhagwan and Yogendra as they had instituted another suit during the pendency of the matter before the Board of Revenue. Ranjit was having his double barrel gun. Bhagwan was having a lathi. Mother of Ranjit Bahadur was sitting on the steps of the ghat. Bhagwaati Dayal started abusing Bhagwan and Yogendra as they had instituted another suit during the pendency of the matter before the Board of Revenue. These persons retorted by saying that they were only fighting for their right and they would not withdraw the suit. Upon such exchange of words, Bhagwati Dayal asked his son to open fire and Ranjit Bahadur shot at Bhagwan injuring him. Bhagwati Dayal also struck Yogendra with the end of his lathi (in Hindi, laathi KE HURE SE MARAA ). Yogendra also suffered injuries. The sound of gun fire attracted Ram Janam, Ram Tewari, Parmeshwar and Ramji Tewari. Ranjit Bahadur thried to run away with his gun, but he was chased and over powered and after use of force the gun was snatched away from him. His mother tried to save him and in that melee she also suffered injuries. Ranjit Bahadur was produced at the police outpost Bansdih with his gun. By that time the uncle of Yogendra had also arrived and his uncle, Dhaneshwar, took Bhagwan on a cot to Bansdih Hospital. After producing the accused and the gun, the complainant went to bazar, obtained a paper and sat in the shop of Kripal to write out the report and then submitted the report to the police station. Then the complainant went to the hospital. The doctor opined that his fathers condition was serious and he should be removed to Ballia, A car was brought. The S. I. of police had also arrived and he recorded the statement of Bhagwan. Bhagwan was taken to Ballia Hospital where he died. He clearly admitted in cross-examination that after the 145, Cr. P. C. proceeding Kalawati was put in possession of Fateh Sagar tank and she used to rear fish therein since Dec. 1978 and used to catch fish also. He denied knowledge of the fact that Kalawati had made a prayer before the SDM that Bhagwan and others were interfering in their pisciculture. He also denied the suggestion that any report was made a day ahead of the incident against Bhagwan for having threatened Bhagwati Dayal and Ranjit and for having stopped them from fishing. The latest suit was filed by Bhagwan on 26-3-1989. He also denied the suggestion that any report was made a day ahead of the incident against Bhagwan for having threatened Bhagwati Dayal and Ranjit and for having stopped them from fishing. The latest suit was filed by Bhagwan on 26-3-1989. The accused persons were not summoned but they had knowledge of the institution of this suit. ( 10 ) PW 1 further indicated that there were houses of several persons near Fatesh Sagar tank, but only Ram Janam Koeri amongst the persons living near the tank had come to the spot at the time of the incident. There were the houses of the priests of the Vishwakarma and Shiva temples but they did not come to the spot. When Ranjit Bahadur was apprehended Mukurdhan Gaur Mangroo Koeri had arrived and some others but PW could not name them. He has made a clear statement in paragraph 2 of his deposition that when the gunshot was fired no witness had come there and they had come only at the time of apprehension of Ranjit Bahadur. He had further stated that in the morning both of them had eased themselves before proceeding from Pakaria. They had not taken any breakfast. This was pointed out by the learned counsel to highlight the findings in the post mortem report about the stomach contents of the deceased. It was stated that after opening fire Ranjit Bahadur started running away and his father also ran away but they did not threaten anybody with the gun before Ranjit was apprenhended and his gun was snatched away. There had been a scuffle at the time of the snatching of the gun. When this scuffle was going on the mother of Ranjit had come to his rescue. Ranjit was not tied up after being arrested. He was simply caught by his hand. He was taken to the chowkidar not in a tied condition. Dasi had suffered injuries in the scuffle when she involved herself in rescuing Ranjit Bahadur. The witness was confronted with his report in the FIR. he did not state in the FIR that Ranjit ran away towards south or was apprehended on the culvert. It was accepted that Ram Dasi had suffered injuries in her attempt to rescue Ranjit evidence is there from this witness that when he had gone to the doctor he had seen Ram Dasi and Ranjit in the hospital. he did not state in the FIR that Ranjit ran away towards south or was apprehended on the culvert. It was accepted that Ram Dasi had suffered injuries in her attempt to rescue Ranjit evidence is there from this witness that when he had gone to the doctor he had seen Ram Dasi and Ranjit in the hospital. He claimed that the police officer had taken the statement of his father and he was not sensealess at that moment. The statement was recorded in presence of eye-witnesses. It was put to him by way of defence suggesting that the deceased Bhagwan and others had attacked Ranjit Bahadur and tried to resist him from fighting and had assaulted him with lathis and in a scuffle that followed, the trigger of the gun of Ranjit was accidently pressed causing injury to Bhagwan and in that process the complainat also suffered injuries. ( 11 ) THE second witness Rama Tewari had gone to the spot for ghat Bandhan (a Hindu ritual performed duirng the mourning period ) of one Mathura Hajam and being at the spot he had seen the incident. A defence witness was examined on this point to prove that Mathura Hajam had died long back and there was no occasion for ghat bandhan long after his death and thus the presence of Rama Tewari was suspicious, according to the defence version. The witness spoke about firing on Bhagwan by Ranjit, exhortation by Bhagwati Dayal and apprehension of Ranjit near the culvert. At the time of snatching away the gun from him, Ranjit was assaulted. According to him, when he was being taken to the police outpost with the gun, his mother came there and wanted to rescue him and a scuffle arose resulting in the injuries of Rama Dasi. The cross-examination of this witness indicates that for ghat bandhan he only had gone and none was there with him. He further stated that accused persons had shown proper respect to him (mujhe DAND PRARHAM KIYA THAA ). He had accepted in further lines of his cross-examination that Ranjit did not open fire in his presence (mere SAAMNE MULJIM RANJIT NE GOLI NAHIN MARAA ). He had seen the injury on the head of Ram Dasi which was bleeding. He further stated that accused persons had shown proper respect to him (mujhe DAND PRARHAM KIYA THAA ). He had accepted in further lines of his cross-examination that Ranjit did not open fire in his presence (mere SAAMNE MULJIM RANJIT NE GOLI NAHIN MARAA ). He had seen the injury on the head of Ram Dasi which was bleeding. Ranjit was assaulted when he was apprehended but this witness could not say by what weapon such injuries were caused and by whom. This witness also contradicts PW 1 when he says that injury to Ram Dasi was caused when the gun was being snatched from Ranjit and not when he was taken to the chowki. ( 12 ) THE third witness Mukurdhan reached the spot on the sound of gunfire. When he arrived people were snatching the gun from Ranjit Bahadur. They were also assaulting him with lathi. His mother came to his help and intervened. Yogendra Singh was successful in snatching the gun. It was made over to Ram Tewari and the gun and Ranjit were taken to the police out post Bhagwan Singh was lying on the ground by the side of the road. This witness claims that Bhagwan Singh told him that Bhagwati Singh exhorted his son and Ranjit had shot at him. By the time he had reached the spot, Ram Dasi was already there and she had already suffered the injuries on her head which was bleeding. This witness did not tell the police officer that Bhagwan Singh had made any statement to him regarding the incident. ( 13 ) AS against this version of the prosecution regarding the incident, Ranjit Singh took a definite defence that he had reared fish in the Fateh Sagar tank and he was getting it caught by his men. Bhagwan Singh abused him and tried to stop him from fishing and threatened him and a report was made to the police station. Thereafter he was assaulted by Bhagwan Singh for which another report was made and on the next day (11-4-1980) Bhagwan Singh, Yogendra Singh and others came there and resisted him from fishing and assaulted him with lathi. Ranjit was holding a gun. His alarm attracted his mother to the spot. She too was assaulted. His gun was caught hold of. In a bid to snatch it there had been an accidental fire. Ranjit was holding a gun. His alarm attracted his mother to the spot. She too was assaulted. His gun was caught hold of. In a bid to snatch it there had been an accidental fire. The accused set up a plea of right of private defence. ( 14 ) THERE is no denial of the fact that the Fateh Sagar tank was in possession of the accused Ranjit Bahadur and his father. Their possession was upheld in a proceeding under Section 145, Cr. P. C. and the question of records in favour of Bhagwati Dayal and Ranjit Bahadur was pending in a litigation before the Board of Revenue. A few days prior to the alleged incident, a suit was field by the deceased for this very tank and institution of this suit is said to be the motive for the murder. It is stated that the accused persons were insisting that the latest suit should be withdrawn. On the other hand, it is the defence case that the complainant-party was persistently resisting catching of fish in the Fateh Sagar tank by Ranjit Bahadur and Bhagwati Dayal. From the papers that have been brought on record, it is found that the instant FIR concerning the death of Bhagwan was lodged at 8 a. m. on 11-4-1980. There had beena report at the police station by Ranjit Bahadur a day ahead of this report, at 6. 15 a. m. of 10-4-1980. Ranjit Bahadur had made a report against Bhagwan Singh in this FIR (Ext. Ka-3) that Bhagwan was obstructing him from catching fish, was abusing and was threatening him with dire consequences. A report was made by Ranjit Bahadur again on 10-4-1980 at 5. 30 p. m. against Bhagwan Singh making an allegation of assault on him (Ext. Kha 4 ). On 11-4-1980 again at 8. 30 a. m. Ram Dasi also lodged a report (Ext. Kha-2) against Yogendra, Bhagwan and others in which the assault on Ranjit Bahadur and snatching away of his gun and taking him to the police station (chowkie) were reported. Thus, the facts of apprehension of Ranjit and his production at the police station with his gun were not denied. Two versions are coming before the court over the same incident. Kha-2) against Yogendra, Bhagwan and others in which the assault on Ranjit Bahadur and snatching away of his gun and taking him to the police station (chowkie) were reported. Thus, the facts of apprehension of Ranjit and his production at the police station with his gun were not denied. Two versions are coming before the court over the same incident. In the prosecution version, intentional killing of Bhagwan has been alleged against Ranjit while in the defence version it has been stated that in a bid to snatch the gun there had been an accidental fire and the accused Ranjit was not liable for it. There was evidence of assault on Ranjit and on Ram Dasi. ( 15 ) IN a criminal trial while the prosecution is required to prove its case to the hilt beyond all reasonable doubts, the defence is obliged to put up a probable case only. Once the defence case is probable, the prosecution version is shaken and thus it becomes doubtful. The facts in favour of defence are the admitted possession of the tank with them. When they were in possession, it was not normal for them to be the aggressors. Normally, a person who is defeated in a Court of law, would try to take the law in his own hand. The present complainant and his father lost the 145, Cr. P. C. proceeding and a revision arose therefrom and they had lost in the lower forums and had to move the Board of Revenue for the record of the tank in their favour. They had also filed a suit. There is no explanation as to why a day ahead of the incident, they had threatened the complainant in the morning and had assaulted him in the afternoon. Admittedly, there were injuries on Ranjit Bahadur and his mother but the FIR is absolutely silent about these injuries. It appears from the trend of events that the defence version was a probable one and it is a probable theory that Ranjit Bahadur had been catching fish and it was being objected to by the other side. Bhagwan Singh resisted Ranjit Bahadur on 10/04/1980, abused him and assaulted him and on the next day when he again saw him catching fish, he pounced upon him with lathi along with his associates and that resulted in the incident. Bhagwan Singh resisted Ranjit Bahadur on 10/04/1980, abused him and assaulted him and on the next day when he again saw him catching fish, he pounced upon him with lathi along with his associates and that resulted in the incident. The probability of the defence case is further supported from the fact that although Ranjit Bahadur was having a gun and had the time to run away he did not use his gun to threaten the persons who were chasing them, nor did he shoot at them. The story of accidental fire is also a probable one as there is an admission of scuffle for snatching the gun and it is not uncommon or unnatural that in that scuffle some bodys finger might press the trigger resulting the shot to be fired without any intention to kill. Had Ranjit and Bhagwati Dayal been the aggressors, they would have caused more injuries on the complainant side then what was found to have been caused. The absence of mention of injuries on Ranjit and his mother is also a circumstance that goes against the prosecution theory. The FIR lodged by Ram Dasi, however, indicates that injuries on the other side were caused due to accidental fire in the process of snatching the gun. ( 16 ) FOR the aforesaid reasons, we are of the view that the defence version is quite a probable one and once the same is accepted the prosecution version is shaken and becomes doubtful. The benefit of this doubt must, therefore, go to the defence. On this finding, we give benefit of doubt to Ranjit Bahadur and find him not guilty. ( 17 ) THE appeal stands allowed so far the appellant Ranjit Bahadur Singh is concerned. He is acquitted and he is discharged from his bail bonds. No order is necessary in respect of the accused Bhagwati Dayal Singh as he is already dead. Appeal allowed. .