M. C. JAIN, J. ( 1 ) THERE are five appellants, Latoor -- Son of Ram Prasad, Tripal alias, Kripal, Hari Singh, Jai Singh alias Lalloo and Latoor - son of Ram Das. They have preferred this appeal against the judgment and order dated 3rd of August, 1979 passed by Sri. P. C. Agarwal, the then VII Additional Sessions Judge, Bulandshahr in Sessions Trial No. 171 of 1979. All of them have been convicted under Section 302, I. P. C. read with Section 149, I. P. C. and sentenced to life imprisonment. The accused- appellants Tripal alias Kripal, Hari Singh and Jai Singh alias Laloo have also been convicted under 147, I. P. C. and each sentenced to rigorous imprisonment for two years. The accused-appellant Latoor son of Ram Prasad and Latoor son of Ram Das have been convicted under Section 148, I. P. C. and each of them has been sentenced to rigorous imprisonment for three years. All the sentences have been ordered to run concurrently. ( 2 ) THE deceased of the incident in question was one Ghanshyam. The genesis of the prosecution case was the first information report lodged by PW 1 Kishori Singh at Police Station Bugrasi District Bulandshahr on 17-7- 1976 at 2. 45 p. m. The deceased was his uncle. The incident had taken place on that day at about 10. 30 a. m. near tube well of Sukhdeo in village Ghunghrawali. According to the prosecution on the fateful day and time the informant PW 1 Kishori Singh and his uncle Ghanshyam were going towards their field. PW 3 Karan Singh came running from the side of the field of Manvir and informed his uncle Ghanshyam that the accused appellant Tripal alias Kripal had dismantled the Mend of his sugarcane field and that he did not desist on his having asked him not to do so. Leaving Imrat there, he was coming to inform him. Unarmed, the informant PW 1 Kishori Singh, Ghanshyam Singh and PW 3 Karan Singh reached near the tube- well of Sukhdeo. All the five accused appellants were found present there. All, excepting Latoor son of Ram Das, had lathis, Latoor son of Ram Das had a Ballam. Leaving Imrat there, he was coming to inform him. Unarmed, the informant PW 1 Kishori Singh, Ghanshyam Singh and PW 3 Karan Singh reached near the tube- well of Sukhdeo. All the five accused appellants were found present there. All, excepting Latoor son of Ram Das, had lathis, Latoor son of Ram Das had a Ballam. When Ghanshyam asked Tripal alias Kripal as to why he dismantled the Mend of his field, all the five accused appellants replied that he had no son and they would appropriate his field and further that they would teach him a lesson for doing Pairvy from the side of Kalicharan in a pending case against them. They also held out that they would cut him to pieces, what to say of the dismantling the Mend of his field. All of them instantaneously attacked him with their weapons. He , Ghanshyam and PW 3 Karan Singh raised shouts which attracted Imrat, Hari Singh and Manvir Singh. All of them tried to intervene but the accused-appellant Latoor son of Ram Prasad took out a countrymade pistol from the pocket of his pant and flaunted it towards them that he would kill anyone who dared to come in between them and their prey. After assaulting Ghanshyam and taking him to be dead, the accused-appellants ran away. The informant was bringing the victim Ghanshyam on a cart of Manvir driven by Mahendra to Bugrasi. A little before Bugrasi Ghanshyam succumbed to his injuries. He then got scribed the first information report by Imrat at the pumping set of Patina and ultimately lodged the same at the Police Station. A case was registered. The investigation followed as usual. The dead body of the deceased was subjected to post-mortem after requisite formalities. The accused-appellants, on conclusion of investigation, were booked for trial. ( 3 ) IT may be stated at this juncture that the post-mortem over the dead body of the deceased Ghanshyam was conducted by PW 6 Dr. Dharam Veer Singh on 18-7-1976 at 1 p. m. The deceased was aged about 65 years and about one day had passed since he died. The following ante-mortem injuries were found on his person. 1. Contusion 3" x 11/2" on the back of right forearm middle with fracture of both bones underneath. 2. Contusion 5" x 3" on the outer aspect of left arm middle. 3. The following ante-mortem injuries were found on his person. 1. Contusion 3" x 11/2" on the back of right forearm middle with fracture of both bones underneath. 2. Contusion 5" x 3" on the outer aspect of left arm middle. 3. Stab wound 1/2" x 1/4" muscle deep on the back of left forearm 21/2" above left wrist. 4. Contusion 4" x 21/2" on the inner aspect and back of left forearm middle with two lacerated wounds 1" apart measuring 1" x 1/3" x bone with fracture of ulna bone underneath. Communited three places. 5. Contusion 4" x 2" on the right buttock. 6. Two contusions 2" apart on left buttock measuring 6" x 2" and 4" x 1-3/4". 7. Five contusions in an area of 10" x 8" on front and outer aspect of right thigh measuring smallest 3" x 11/2" and largest 6" x 2". 8. Lacerated wound 11/2" x 1" x bone with surrounding contusion 3" x 2" with fracture both bones underneath on front of right leg upper one third. 9. Contusion 5" x 2" on front of left thigh middle. 10. Lacerated wound 2" x 3/4" x bone on front of left leg middle. 11. Lacerated wound 2" x 3/4" x bone on front of left leg lower, one-third fracture both bones underneath. ( 4 ) THE death had occurred due to shock and haemorrhge as a result of ante-mortem injuries. ( 5 ) THE accused-appellants who are collaterals and cousins amongst themselves denied the prosecution case and pleaded false implication. ( 6 ) ACCUSED-APPELLANT Latoor son of Ram Das put forth a different version that earlier to the incident he had made an application against Ghanshyam (deceased) and others, that on the fateful day at about 10-11 a. m. he was coming from his field to the village when Ghanshyam (deceased), PW 1 Kishori Singh, Sumera and Chura (both sons of Sagwa) confronted him near the field of Khacheru, Ghanshyam was armed with a spear and rest had lathis. They surrounded him and started assaulting him with spear and lathis. Kripal (accused-appellant) attempted to intervene and to save him but he was also assulted. He and Kripal also used lathis in defence. Their injuries had also been medically examined. Actually, on a cross first information report (Ex. They surrounded him and started assaulting him with spear and lathis. Kripal (accused-appellant) attempted to intervene and to save him but he was also assulted. He and Kripal also used lathis in defence. Their injuries had also been medically examined. Actually, on a cross first information report (Ex. Kha 8) to this effect made by Latoor son of Ram Das a cross case came to be registered on the direction of the Superintendent of Police dates 18-7-1976 to whom the first information reprot was presented at 10 a. m. It was also stated in such cross F. I. R that out of fear he (Latoor son of Ram Das) had not directly gone to the Police Station. ( 7 ) IT would also be relevant to relate here that the accused-appellant Latoor son of Ram Das and Kripal Singh were also subjected to medical examination on 17-7- 1976 at 8. 25 p. m. and 8. 40 p. m. respectvely in District Hospital Bulandshahr. Their injury reports are Ex. Kha-4 and Kha-5 respectively proved by D. W 1 Dr. Aqil Ahmad. The following injuries were found on the person of Latoor son of Ram Das: 1. Incised wound 41/2 cm x 1/4 cm x muscle deep on top and outer aspect of right shoulder. 2. Incised wound 2 cm x 1/4 cm x skin on left scapula upper part. 3. Two abrasions 13 cm x 2 1/4 cm on left scapula covering whole scapular area. 4. Two linear abrasions in area of 14 cm x 2 cm on the right upper scapular region right side. 5. Multiple abrasions in area 12. 5 cm x 5 cm left side back in the middle region. 6. Abrasion 8 cm x 1/2 cm right side back in the middle. 7. Contusion 3 cm x 2 cm x in the middle lower part of the back. 8. Incised wound 31/2 cm x 1/6 cm x muscle deep outer aspect of left arm in the middle. 9. Contusion 11/2 cm x 1/2 cm right side chest lower half. 10. Contusion 7 cm x 2 cm back of right thigh in middle. 11. Linear abrasion on right calf. ( 8 ) ALL the injuries were simple. Injuries No. 1, 2 and 8 had been caused by sharp edged weapon whereas injuries No. 7, 9 and 10 had been caused by some blunt object. 10. Contusion 7 cm x 2 cm back of right thigh in middle. 11. Linear abrasion on right calf. ( 8 ) ALL the injuries were simple. Injuries No. 1, 2 and 8 had been caused by sharp edged weapon whereas injuries No. 7, 9 and 10 had been caused by some blunt object. The rest had been caused by friction. They were about half day old. ( 9 ) AS per injury report Ex. Kha 5, the following injuries were found on the person of accused-appellant Kripal out of which injuries No. 1 and 2 had been caused by sharp edged weapon and rest by friction. All of them were simple and half day old; 1. Incised wound 41/2 cm x 1/2 cm x muscle on left side arm back in the middle region. 2. Incised wound 51/2 cm x 1/4 cm x muscle on right side arm in the middle region. 3. Abrasion 1 cm x 1/4 cm back of neck right part. 4. Multiple abrasions in area of 11 cm x 1 cm on right scapular region. 5. Multiple abrasions in area of 15 cm x 2 cm on left side scapular region. ( 10 ) SO, to pick up the thread, the case put forth by the said accused-appellant was of self defence. In other words, it was contended that actually the prosecution side was the aggressor and they only caused injuries to Ghanshyam in self defence. ( 11 ) AT the trial, the prosecution examined seven witnesses out of whom PW 1 Kishori Singh, PW 2 Hari Singh and PW 3 Karan Singh were examined as eye witnesses. The accused persons also examined DW 1 Dr. Aquil Ahmad, DW 2 Krishna Kumar Bhardwaj, DW 3 Constable Om Prkash and DW 4 Sheesh Pal Singh in defence. An application Ex. Kha 7 was proved by DW 2 Krishna Kumar Bharadwaj, an employee of Collectorate Bulandshahr. It was dated 18-6-1976 and had been made by Latoor son of Ram Das (accused-appellant) to the District Magistrate, Bulandshahr. It contains an endorsement dated 18-6-1976 signed by some officer for District Magistrate with the endorsement "peshbandi Dakhil Daftar Ho. ". This application had been made against Ghanshyam (decesed), Chura and Sumera sons of Sagwa, PW 1 Kishori Singh, Kali Charan, Manveer and others. It was specifically mentioned that Ghanshyam and Kali Charan were previous convicts and of turbulent nature. It contains an endorsement dated 18-6-1976 signed by some officer for District Magistrate with the endorsement "peshbandi Dakhil Daftar Ho. ". This application had been made against Ghanshyam (decesed), Chura and Sumera sons of Sagwa, PW 1 Kishori Singh, Kali Charan, Manveer and others. It was specifically mentioned that Ghanshyam and Kali Charan were previous convicts and of turbulent nature. An apprehension was expressed in the application that the persons named in it could attack the applicant at any time. As per the defence, Ghanshyam etc. on the prosecution side had come to know of this application made by the accused- appellant Latoor son of Ram Das and it was the reason for his having been attacked on the fateful day by Ghanshyam, PW 1 Kishori Singh, Sumera and Chura (both sons of Sagwa ). ( 12 ) THE learned Additional Sessions Judge holding trial, however, discarded the defence theory. He believed the prosecution case and evidence. He accordingly convicted and sentenced the accused-appellants as detailed in the earlier part of the judgment. Naturally, the accused-appellants are aggrieved and they have come up in appeal before this Court. ( 13 ) WE have heard Sri S. P. S. Raghav, learned counsel for the appellants and learned A. G. A. from the side of the State. We have also carefully waded through the record and evidence. It has been argued for the accused-appellants that the prosecution could not assign any motive, what to say a firm motive, on the part of the accused-appellants for commission of this crime. It has also been urged that the prosecution withheld the origin of the incident and presented a distorted picture. Another argument from the side of the accused-appellants is that actually the prosecution side was the aggressor and the accused-appellants only acted in self defence. On the other hand, the learned A. G. A. has supported the impugned judgment of the trial Court whereby the accused-appellants have been convicted and sentenced. ( 14 ) ON giving our anxious consideration to the material and evidence on record in the light of the arguments made at the bar, we find substantial force in the submissions made by the learned counsel for accused-appellants. We proceed forthwith to state the reasons for our this conviction. ( 15 ) IT is a case where the incident is admitted to both the sides. We proceed forthwith to state the reasons for our this conviction. ( 15 ) IT is a case where the incident is admitted to both the sides. Even the time and place of occurrence are almost admitted. According to the prosecution, the incident took place near the tube-well of Sukhdeo whereas according to the defence it occurred near the field of Khacheru. The perusal of the site plan prepared by the Investigating Officer goes to show that the two places are in immediate neighbourhood of each other. In other words, there is no material difference between the two sides as to the place of occurrence. It should also be pointed out that PW 1 Kishori Singh and PW 3 Karan Singh are close relatives of the deceased being the nephew and grandson respectively of the deceased. This being so, the Court is required to scrtutinise their evidence with more than ordinary care. So far as PW 2 Hari Singh is concerned, we form the opinion that he was a chance witness. The reason assigned by him for being present at the spot was that he was going to the brick kiln for settling the purchase of bricks and he was attracted towards the tube-well of Sukhdeo on hearing shouts where he witnessed the occurrence of assaulting of Ghansyam by the accused-appellants. But we note from his cross-examination that his house was situated on the way leading to Farida and his Chak was also on that way. The brick klin was only two furlongs away from his Chak. The place of occurrence would not have fallen in the way if he had gone to the brick kiln by the way leading to Farida. He unsuccessfully justified his going to the brick kiln by the side of the field of Hattu. From the field of Hattu the way leading to Farida was about five furlongs. It could not be accepted that he would have chosen a circuitious and longer way to reach the brick kiln. We do not find it safe to rely on the testimony of this chance witness. There is another reason to discard his testimony that he, like PW 1 Kishori Singh and PW 3 Karan Singh, expressed complete ignorance regarding the injuries sustained by the accused-appellants Latoor son of Ram Das and Kripal Singh. We do not find it safe to rely on the testimony of this chance witness. There is another reason to discard his testimony that he, like PW 1 Kishori Singh and PW 3 Karan Singh, expressed complete ignorance regarding the injuries sustained by the accused-appellants Latoor son of Ram Das and Kripal Singh. Rather he stated that none from the side of Ghanshyam (prosecution side) had assaulted the accused-appellants. To be brief, his alleged presence and testimony did not stand the test of scrutiny. ( 16 ) IGNORING the testimony of PW 2 Hari Singh, we are left with the evidence of PW 1 Kishori Singh and PW 3 Karan Singh who are interested witnesses being the close relatives of the deceased. On subjecting their testimonial assertions to the test of reliability, we find that they have not come up with clean hands. Even the motive assigned against the accused-appellants for the commission of this crime is not firm and consistent. Rather it is fluctuating and volatile. Of course, motive is not evidence in a case. Nevertheless, it throws flood of light as to the root cause of the incident. The prosecution alleged two motives against the accused-appellants. First, the accused-appellant Kripal dismantled the Mend of the field of Ghanshyam and when the latter questioned him regarding it near the tube-well of Sukhdeo the appellants spoke extremely harsh words to him and started assaulting him with lathis and spear. Second, they also allegedly held out that he would be taught a lesson for doing pairvi from the side of Kali Charan, who had a pending case against them. However, before the Court PW 1 Kishori Singh stated that the accused-appellants committed this crime because Ghanshyam was doing pairvi on behalf of Kali Charan. He stated that he did not know of any other reason meaning thereby that the theory of dismantling of Mend of the field of Ghansyam by Kirpal that day and the questioning of the latter by the former in this behalf was indirectly given up as motive of the commission of this crime. Regarding this aspect of dismantling the Mend, the statement of PW 3 Karan Singh is also self contradictory. He admitted before the Court in paragraph 5 of his statement that he gave this statement to the Investigating Officer that all the five accused-appellants had dismantled the Mend of the field of Ghanshyam. Regarding this aspect of dismantling the Mend, the statement of PW 3 Karan Singh is also self contradictory. He admitted before the Court in paragraph 5 of his statement that he gave this statement to the Investigating Officer that all the five accused-appellants had dismantled the Mend of the field of Ghanshyam. He insisted that he had given this statement correctly. However, in the next breath he stated that his correct statement was that only Kripal accused had dismantled the Mend of the field of Ghanshyam. Thus, there is no consistency in the case of the prosecution as to the dismantling of the Mend of the field of Ghanshyam either by the accused-appellant Kripal or by all of them. ( 17 ) THE second motive was also not convincing that the accused-appellant harboured grudge against Ghanshyam as he was doing pairvi from the side of Kali Charan. Kali Charan had allegedly been assaulted by the accused-appellants. That incident had allegedly taken place a year before. It does not stand to reason that all of a sudden accused-appellants, would take it into their heads to murder Ghanshyam on the issue that he was doing pairvi from the side of Kali Charan. Moreover, if it was a planned murder, there was no obstruction in the way of the accused-appellants murdering Ghan-shyam either by shooting him or by inflicting injuries on his vital parts by spear. It has to be kept in mind that as per the prosecution case one of the accused-appellants had a countrymade pistol too and the other one had a spear but the truth of the matter is that none of the injuries on the person of Ghanshyam was caused on his vital part. Moreover, the firearm was not at all used. There was no noticeable damage beneath any ante-mortem injury as per the details of the internal examination contained in the post-mortem report. Out of his eleven injuries, cutting weapon injury was a stab wound 1/2" x 1/4" x muscle deep on the back of left forearm 21/2" above left wrist. Obviously, it was also not on vital part. The rest of the injuries were of blunt weapon. Out of his eleven injuries, cutting weapon injury was a stab wound 1/2" x 1/4" x muscle deep on the back of left forearm 21/2" above left wrist. Obviously, it was also not on vital part. The rest of the injuries were of blunt weapon. It is altogether a different question that Ghansyam who was aged 65 years died of shock as a cumulative result of ante-mortem injuries sustained by him, but the point of the matter is that none of his vital part was aimed at. It is indicative of the fact that it was not a planned murder and the pro-secuiton story is belied that the accused-appellants had deep rooted animus against Ghanshyam. ( 18 ) ANOTHER important aspect of the matter which strikes at the bottom of the prosecution case is that the prosecution witnesses have not at all explained the injuries of the accused-appellants Latoor son of Ram Das and Kripal which have been reproduced above. All the eye witnesses of the prosecution have flatly and categorically stated that none from the prosecution side used any weapon to cause injuries on the side of the accused-appellants. It may be pointed out that injuries of these two accused-appellants reproduced above cannot be regarded as negligible in nature and number. It is apparent from Ex. Kha 7 that on 18-6-1976 an application had been made by the accused -appellant Latoor son of Ram Das to the District Magistrate, Bulandshahr, against Ghanshyam (deceased), PW 1 Kishori Singh and others. The possibility is very much there that Ghansyam, PW 3 Karan Singh etc. had come to know of it and actually assaulted Latoor son of Ram Das near the field of Khacheru and caused injuries to Kripal accused-appellant also when he tried to intervene and came to the rescue of Latoor son of Ram Das. The possibility cannot be ruled out that the accused-appellants caused injuries to Ghanshyam in self defence. The fact that none of the injuries on the person of Ghanshyam was inflicted on the vital part supports this view. We are of the opinion that these accused-appellants proved infliction of injuries on them by the prosecution side in the course of the occurrence. Therefore, the obligatory initial presumption against them was removed and their plea appeared to be reasonable that they acted in the right of private defence. We are of the opinion that these accused-appellants proved infliction of injuries on them by the prosecution side in the course of the occurrence. Therefore, the obligatory initial presumption against them was removed and their plea appeared to be reasonable that they acted in the right of private defence. Both of them received incised wounds too, meaning thereby that cutting weapon (s) had been used from the prosecution side also. As many as three incised wounds had been suffered by Latoor son of Ram Das and two incised wounds had been suffered by Kripal Singh. Indeed, the accused-appellants could not be accepted to modulate their right of private defence. The legal position is well settled that the accused is entitled to right of private defence of body even to the extent of causing death, if he had reasonable ground for apprehending that either death or grievous hurt would be caused either to himself or to some one else. These things cannot be weighed in too fine a set of scale or in golden scales as observed by the Apex Court in the case of Amjad Khan v. State, AIR 1952 SC 165 : (1952 Cri LJ 848 ). The Supreme Court has also observed in another case - Pooran Singh v. State of Punjab , AIR 1975 SC 1674 : (1975 Cri LJ 1479) that the right of private defence of property or person could extend to the extent of causing death also where there is real apprehension that the aggressor might cause death or grievous hurt to the victim. It is not necessary that death or grievous hurt should actually be caused before the right could be exercised. A mere reasonable apprehension is enough to put the right of private defence into operation. ( 19 ) HAVING regard to the ante-mortem injuries sustained by the deceased Ghanshyam and the injuries of the two accused-appellants Latoor son of Ram Das and Kripal Singh, the possibility is very much there that they caused injuries to Ghanshyam in self defence and in the given circumstances their such right could extend to the causing of his death. The prosecution has concealed the origin of the incident. The prosecution has concealed the origin of the incident. It came with a fluctuating motive and also tried to wash its hands off the injuries sustained by the two accused-appellants (Latoor son of Ram Das and Kripal Singh) which by no means could be deemed to be negligible in nature or number. We would also do better to state that the burden of the accused is not so onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability. ( 20 ) TO come to a close, in view of the foregoing discussion we come to the conclusion that there is every possibility of the accused-appellants having caused injuries to Ghanshyam in the exercise of their right of private defence, which under the facts and circumstances of the case could extend to the causing of his death. The appeal therefore, deserves to succeed. ( 21 ) ACCORDINGLY, we allow this appeal by setting aside the conviction and sentence passed against the accused-appellants by the learned Additional Sessions Judge through the impugned judgment. Resultantly, the accusued-appellants-Latoor son of Ram Prasad, Tripal alias Kripal, Hari Singh, Jai Singh, alias Laloo and Latoor son of Ram Das are acquitted. They are on bail. They need not surrender. Their personal bonds and bail bonds are cancelled and sureties discharged. ( 22 ) LET a copy of this judgment with the record of the case be immediately sent to the Court below. Appeal allowed. .