J. C. GUPTA, J. The appellants named above have been convicted and sentenced to life imprisonment under Section 302/149 I. P. C. appellant No. 5 Samad has further been convicted and sentenced to undergo RI. for one year under Section 148 I. P. C. while the remaining appellants have also been convicted and sentenced to three months R. I. under Section 147 I. P. C. All the sentences are to run concurrently. By means of this appeal the appellants have challenged the order of conviction and sentence, dated 29-11-1980 recorded by the then IVth Additional Sessions Judge, Muzaffarnagar. 2. Undisputedly the deceased of this case, Saghir Ahmad and the appellants were descendents of Dasondi as per the pedigree given below: 3. Salamt aforesaid and appellant Niyamat were having a joint chak of about 75 Bighas in village Barla. This field was about 2 furlongs away in the west from village abadi. It was mutually agreed between Salamat and Niyamat that eastern portion of the field would remain with Salamat while the western portion with Niyamat. To the north of this field there was a water channel running west to east. Both the portions of this field were irrigated from this water course. Canal department has allotted turn and hours for the irrigation to these two tenure holders. It fixed the period for taking water from the aforesaid water course from 6. 14 p. m. on Sunday till 9. 35 p. m. on Tuesday. Niyamat and Salamat their respective portions as per the agreement Niyamats turn was from 6. 14 p. m. Sunday to 7. 54 p. m. Monday, thereafter it was the turn of Salamat from 7. 55 p. m. Monday till 9. 35 p. m. Tuesday. These facts are not in dispute between the parties. 4. The prosecution story further is that on 8-5-1978 which was Monday, Saghir Ahmad-deceased reached his field and diverted water in the drain towards his portion of the field as his turn of taking water had begun and when he moved a little towards his field after diverting the water, all the accused persons came there and asked why water has been diverted. At this Saghir Ahmad replied that as his turn to irrigate his portion has commenced he has done so. At this Saghir Ahmad replied that as his turn to irrigate his portion has commenced he has done so. It is further alleged that immediately thereafter appellant Shahbuddin caught hold of Saghir Ahmad by his waist and appellant Samad gave a spade blow on his head and the remaining three appellants, namely, Niyamat,inam and Jangoo assaulted him with lathi. On the alarm raised by Saghir Ahmad witnesses were attracted to the scene of occurrence. They included Ratan Singh P. W. 4, Omkar, P. W. 5. Bishambhar and Tarabu. Seeing the witnesses arriving appellants ran away. Tarabu then went to the house of Saghir Ahmad and informed his brother Shabbir Ahmad, P. W. 1 about the incident. Shabbir Ahmad then rushed to the place of occurrence and found Saghir Ahmad lying on the ground seriously injured. He arranged for a buggi (bullock cart) and carried Saghir Ahmad to Bus stand, where he shifted Saghir Ahmad on a taxi and proceeded to District Hospital, Muzaffarnagar. Dr. D. C. Mobar, P. W. 7 medically examined Saghir Ahmad at 9. 30 p. m. Dr. found following injuries as detailed in the injury report Ex. Ka-9. Incised wound 8" x 1/2" x bone on the top of head and directed right to left 4" above the left ear and 2" above the right ear. Brain matter was coming out of the wound, patients condition was grave and he was pulseless. B. P. was also not recordable. Hurried examination was done and the patient was admitted. Injury was kept under observation. Its duration was fresh and caused by sharp heavy cutting weapon. Dr. D. C. Mobar also sent information to Police Station Kotwali, Muzaffarnagar on the basis of which an entry in the general diary was made at 11 p. m. Vide Ex. Ka-12. 5. After admitting Saghir Ahmad in Muzaffarnagar Hospital, his brother P. W. 1 Shabbir Ahmad drafted First Information Report (Ex. Ka-1) in his own hand writing and lodged the same at Police Station Kotwali, Muzaffarnagar at 19. 30 p. m. on the same evening. Head Constable Mangu Singh, P. W. 8 was posted as Head Moharrir, he prepared chik FIR (Ex. Ka-10) and registered case under Section 307 IPC at G. D. No. 49 vide copy (Ex. Ka-11 ). Ka-1) in his own hand writing and lodged the same at Police Station Kotwali, Muzaffarnagar at 19. 30 p. m. on the same evening. Head Constable Mangu Singh, P. W. 8 was posted as Head Moharrir, he prepared chik FIR (Ex. Ka-10) and registered case under Section 307 IPC at G. D. No. 49 vide copy (Ex. Ka-11 ). Since the place of occurrence fell within the territorial jurisdiction of P. S. Purkaji, the FIR and copy of G. D. were sent to Police Station, Purkaji through the same G. D. entry. 6. Shabbir Ahmad after lodging the report again came back to hospital and found that condition of his brother Saghir Ahmad was critical. He arranged for ambulance and started for Medical College, Meerut in the morning at about 4 a. m. But before the Court reach there. Saghir Ahmad breathed his last near Khatauli. He took Saghir Ahmad to Primary Health Centre, Khatauli where Saghir Ahmad was declared dead by Dr. Hans Kumar. The doctor sent memo Ex. Ka-2 regarding death of Saghir Ahmad to Police Station, Khatauli in respect of which entry in G. D. was made at 5. 15 a. m. vide Ex. Ka-3, Sub-Inspector Jaipal Singh P. W. 3, who was posted at P. S. Khatauli, conducted inquest and sent the dead-body of Saghir Ahmad for post-mortem examination through Constable Preetam Singh, P. W. 2 and Constable Rajendra Singh. 7. Autopsy on the dead-body of Saghir Ahmad was conducted by Dr. N. D. Baghugana P. W. 9 on 9-5-1978 at 4 p. m. The post-mortem report is Ex. Ka-13. The following ante-mortem injuries were noticed: (1) Incised wound 7-1/2" x 1-1/2" x brain cavity deep both parietal bones cut below the wound, on the top of head middle, trasversely placed 2-1/2" above right ear and tailing towards left, brain matter coming out of the wound. (2) Bruise 2-1/2" x 1-1/2" on the upper and outer part left thigh. (3) Bruiese 1" x 1/2" on the outer part middle of left thigh. (4) Abrasion 1" x 1/2" on the inner part right knee joint. 8. In the internal examination both parietal bones, right and left, were found cut below injury No. 1, membrane was also found cut and brain matter was coming out of wound. (3) Bruiese 1" x 1/2" on the outer part middle of left thigh. (4) Abrasion 1" x 1/2" on the inner part right knee joint. 8. In the internal examination both parietal bones, right and left, were found cut below injury No. 1, membrane was also found cut and brain matter was coming out of wound. In the opinion of the doctor cause of death was shock and hemorrhage as a result of head injury, i. e. , injury No. 1. 9. Papers sent from Police Station Kotwali, Muzaffarnagar, were received at Police Station, Purkaji at 2. 30 p. m. on 9-5-1978 through Constable Girisar regarding which an entry in the G. D. No. 7 was made by constable clerk Surendra Kumar, P. W. 6. Shri Jagbir Singh who was posted as Station Officer took up the investigation on 9-5-1978 and he went to village Barla but did nothing on that day. After coming back to the police station he got converted the case under Section 304 IPC vide G. D. entry Ex. Ka-8. The Investigating Officer then took up investigation only on 15-5-1978 and on that day he recorded statements of Shabbir, Ratan Singh, Omkar and others. Shabbir also handed over to him samples of simple and blood stained earth which according to him were collected by him from the place of occurrence, in this regard Memo Ex. Ka-14 was prepared by the Investigating Officer. He also made an inspection of the place of occurrence and prepared site plan. Ex. Ka-15. After completing investigation he submitted charge-sheet on 26-5-1978 against all the accused persons. 10. The appellants pleaded not guilty. Appellant Niyamat, Shabuddin and Inam denied their presence at the time of incident and alleged their false implication due to enmity. Appellant Samad put forward a counter version of the incident. According to him on the date of occurrence he was irrigating his field. At about 6 p. m. Saghir Ahmad, deceased, Ghaseetu, Yaseen and Tarabu reached there and said that they would divert water to their field. He told them that their turn would start from 8 p. m. and why they were diverting water during his turn. On this Saghir Ahmad, Ghaseetu, Yaseen and Tarabu hurled abuses on him and started beating him with lathi and danda. He in self defence wielded spade which he was having for the purpose of irrigating his field. He told them that their turn would start from 8 p. m. and why they were diverting water during his turn. On this Saghir Ahmad, Ghaseetu, Yaseen and Tarabu hurled abuses on him and started beating him with lathi and danda. He in self defence wielded spade which he was having for the purpose of irrigating his field. Jangoo appellant also started likewise and according to him he and Yusuf D. W. 1 had witnessed the incident and since he was cited as a witness in the cross FIR he has been falsely nominated. 11. From the prosecution side as many as 10 witnesses were produced before the trial Court. They were P. W. 1 Shabbir Ahmad, brother of the deceased and also the first informant. He had himself not witnessed the incident but was told about the same by Tarabu, who was not produced at the trial; P. W. 2 Constable Preetam Singh stated that he had carried the dead-body for post-mortem examination from Police Station, Khatauli. P. W. 3 S. I. Jaipal Singh had conducted inquest proceedings, prepared panchayatnama and other papers P. W. 4 Ratan and P. W. 5 Omkar are alleged eye-witnesses; P. W. 6 constable Surendra Kumar was posted as constable clerk at Police Station, Purkaji. He stated that on 9-5- 1978 FIR and copy of G. D. were received at Police Station, Purkaji from P. S. Khatauli Muzaffarnagar at 2. 30 p. m. on the basis of which case was registered under Section 307 I. P. C. Station Officer Jagbir Singh went to the place of occurrence and came back at 11. 05 p. m. and then got converted the case under Section 304 I. P. C. vide G. D. Ex. Ka-8. It may also be mentioned here that Constable Clerk Surendra Kumar, P. W. 6 has also proved the FIR of appellant Abdul Samad as Ex. Kha-1 which was recorded at Police Station, Purkaji on 8-5-1978 at 10. 10 p. m. and its relevant G. D. entry as Ex. Kha-2. He also admitted that he had found injuries on the person of Abdul Samad and had made a mention of the same in the G. D. entry. P. W. 7 Dr. D. C. Mobar had medically examined Saghir Ahmad at District Hospital, Muzaffarnagar on 8-5-1978 at 9. 30 p. m. He proved injury report of Saghir Ahmad as Ex. Kha-2. He also admitted that he had found injuries on the person of Abdul Samad and had made a mention of the same in the G. D. entry. P. W. 7 Dr. D. C. Mobar had medically examined Saghir Ahmad at District Hospital, Muzaffarnagar on 8-5-1978 at 9. 30 p. m. He proved injury report of Saghir Ahmad as Ex. Ka-9; P. W. 8 is Head Constable Mangu Singh, he was posted as Head Moharrir at Police Station, Khatauli. He stated that on 8-5-1978 at 10. 30 p. m. Shabbir had lodged written report Ex. Ka-1 on the basis of which chik FIR Ex. Ka-10 was prepared and entry in G. D. No. 49 was made. Relevant papers were sent to P. S. Purkaji through the same G. D. as the case pertained to the jurisdiction of that police station; P. W. 9 Dr. N. D. Bahuguna proved the post-mortem report Ex. Ka-13. He opined that injury No. 1 of the deceased was sufficient to cause death in ordinary course. He further started that injury Nos. 2 and 3 could be suffered on account of a fall on a hard object while injury No. 4 was the result of friction. He further admitted that injury Nos. 2, 3 and 4 were not mentioned in panchayatnama and photo lash. P. W. 10 S. I. 12. Jagbir Singh is the Investigating Officer. He proved various documents prepared by him during the investigation. He also admitted that when on 15-5-1978 he had arrested accused persons, accused Samad handed over to him copy of his injury report. He also noticed injuries on the person of Samad which he noted in Ex. Kha-3. He further admitted that in the course of investigation he has seen the FIR dated 8-5-1978 of accused Samad. He also admitted that he did not find any blood at the scene of occurrence and had not shown in the site plan the place where the deceased Saghir Ahmad had diverted the water to his drain by removing the bandha and the place where Bandha was placed so that water could flow in the drain towards his field. He further admitted that he did not remember whether he had inspected the fields in which canal water had reached on the date of occurrence. He further admitted that he did not remember whether he had inspected the fields in which canal water had reached on the date of occurrence. He further admitted that he has not shown in the site-plan the fields of Ratan Singh, Saghir Ahmad and Omkar. He further admitted that he had also interrogated Yusuf and Jagnoo accused and they had supported the version given in the FIR of Abdul Samad. 13. In defence two witnesses were examined, namely, Yusuf D. W. 1 and Dr. Gyanendra Singh D. W. 2 Yusuf gave out the version of the incident as was stated by Abdul Samad accused in his statement under Section 313, Cr. P. C. and in the FIR Ex. Kha-1 lodged by him at Police Station, Purkaji on the date of occurrence itself at 10. 10 p. m. D. W. 2 Dr. Gyanendra Singh was the medical officer at P. H. C. Purkaji. He stated that he examined injuries of accused Abdul Samad on 8-5-1978 at 11 p. m. and found the following injuries: (1) Incised wound 3. 5 cms. x 1/2 cm. x scalp deep on the right side of top of head 8 cms. above the root of nose. Bleeding on pressure present. (2) Abrasion 1 cm. x 1/2 cm. on the Radial side of left forearm. (3) Swelling in an area of 10 cms. x 5 cms. on the left forearm in middle part. (4) Contused abrasion 1. 5 cm. x 1/2 cm. on the back and lateral side of right forearm, 3. 5 cms. away from decranon process of right Ulna. (5) Contusion 3 cms. x 1 cm. on the back and lateral side of left leg in the middle and lower 1/3 part. Colour not marked. (6) Complaint of pain in right thigh but no external mark of injury seen. (7) Complaint of pain in left shoulder but no external mark of injury seen. (8) Complaint of pain in back, no external mark of injury seen. He proved injury report as Ex. Kha-5. Colour not marked. (6) Complaint of pain in right thigh but no external mark of injury seen. (7) Complaint of pain in left shoulder but no external mark of injury seen. (8) Complaint of pain in back, no external mark of injury seen. He proved injury report as Ex. Kha-5. In his statement he stated that injury No. 1 could be caused by a sharp edged weapon while rest of the injuries were the result of blunt weapon like lathi and danda and all the injuries could be caused on 8-5-1978 at about 6 p. m. Injury No. 1 of Samad was on vital and bony part hence it could be a lacerated wound also which could be caused by lathi or danda. 14. The learned Sessions Judge on appraisal of evidence arrived at the conclusion that the incident had occurred at about 8 p. m. when it was the turn of Saghir Ahmad for taking water for irrigation of his field and that the accused party was the aggressor. Out of the two witnesses of fact examined on behalf of prosecution the learned Sessions Judge discarded the testimony of P. W. 5 Omkar but placed implicit reliance on the testimony of P. W. 4 Ratan Singh. With regard to injuries suffered by accused Samad the conclusion of the learned Sessions Judge was that this could not be disputed that Samad accused had sustained injuries and further that the injuries received by him at the time of incident were not superficial and existed till 15-5-1978 when the accused was arrested by the Investigating Officer. A further finding has been recorded by the learned Sessions Judge to the effect that there was no doubt that accused Samad has established that he had received injuries in the incidence and there was absolutely no explanation by the prosecution of those injuries but since the accused party was the aggressive failure to explain those injuries by the prosecution was not of any consequence. With these findings the learned Sessions Judge has convicted and sentenced the appellants by the impugned judgment which has been challenged in this appeal. 15. Learned Counsel for the appellants and the learned A. G. A. appearing for the State have been heard at length. 16. With these findings the learned Sessions Judge has convicted and sentenced the appellants by the impugned judgment which has been challenged in this appeal. 15. Learned Counsel for the appellants and the learned A. G. A. appearing for the State have been heard at length. 16. At the out-set it may be stated that appeals of appellant Niyamat and Jangu have abated on account of their having died during the pendency of appeal. 17. The factum of death of Saghir Ahmad due to ante-mortem injury No. 1 has neither been disputed nor challenged before us by the learned Counsel for the appellants. Even otherwise also this fact is fully established from the evidence of Dr. N. C. Mobar P. W. 7 who initially medically examined Saghir Ahmad when he was alive and Dr. N. D. Bahuguna P. W. 9 who conducted post-mortem examination. It is also in their statements that injury No. 1 noted in the post-mortem report could be the result of use of Phawara (spade) and that the said injury was sufficient to cause death in ordinary course. 18. The appellants Counsel Shri P. N. Mishra, Sr. Advocate made a number of submissions before this Court. He contended that the main dispute between the parties was with regard to the right of taking water for irrigation from the canal and, therefore, it was for the prosecution to prove affirmatively that at the time the incident occurred it was the turn of the victim party to take water from the canal which the prosecution miserably failed to establish and that from the evidence on record coupled with the attending circumstances it is evident that incident occurred much before 7. 55 p. m. i. e. , before the turn of Saghir Ahmad to take water began. It was also submitted that appellant Samad himself had received injuries in the incident but they have not been explained in the prosecution evidence and, therefore, the prosecution is guilty of suppressing the genesis and origin of occurrence and the defence version that the accused inflicted injuries on the deceased in exercise of right of private defence is more probable. Shri Mishras submission further has been that presence of P. W. 4 Ratan Singh and P. W. 5 Onkar at the scene of occurrence is highly doubtful and that the First Information Report was ante timed. 19. From perusal of site plan Ex. Shri Mishras submission further has been that presence of P. W. 4 Ratan Singh and P. W. 5 Onkar at the scene of occurrence is highly doubtful and that the First Information Report was ante timed. 19. From perusal of site plan Ex. Ka-15 it is evident that a water course runs from west to east in the north of field of accused Niyamat. In the west of this field is the chak road while the field of deceased Saghir Ahmad was to the east of field of accused Niyamat. From the said water channel field of Niyamat appellant and Saghir Ahmad were being irrigated and by the canal department a time schedule was fixed for taking water for the said fields for irrigation purpose. It was from 6. 14 p. m. on Sunday to 9. 30 p. m. on Tuesday. This period was then mutually divided by Niyamat and Salamat and as per that agreement the first turn was of Niyamat and he could divert water to his field from 6. 14 p. m. on Sunday to 7. 54 p. m. on Monday, only thereafter Salamat was entitled to take water from the said water channel from 7. 55 on Monday till 9. 35 p. m. on Tuesday. It is also not in dispute that the incident occurred on Monday, the 8th May, 1978. According to the prosecution case the incident in which Saghir Ahmad was assaulted occurred at about 8 p. m. after the turn of Salamat for diverting water to his field had commenced at 7. 55 p. m. whereas the defence case was that the incident occurred at about 6 p. m. while it was still the turn of Niyamat. The main question, therefore, that arises for consideration is as to whether the incident occurred during the turn of complainant party or it had occurred earlier during the turn of Niyamat. To place true facts before the Court the evidence of some officer of canal department was very material but neither he was interrogated by the investigating officer nor produced at the trial. No other evidence from irrigation department was also brought on record in this behalf. P. W. 1 Shabbir Ahmad brother of deceased Saghir Ahmad in cross-examination stated that when Tarabu gave him information about the incident at his residence, sun had already set about 1/2-3/4 hours age. No other evidence from irrigation department was also brought on record in this behalf. P. W. 1 Shabbir Ahmad brother of deceased Saghir Ahmad in cross-examination stated that when Tarabu gave him information about the incident at his residence, sun had already set about 1/2-3/4 hours age. On receiving this information he went to the scene of occurrence on foot which was about two furlongs from his residence. He further admitted that when he reached the place of occurrence buggi of Ratan Singh was not there and according to P. W. 4 Ratan Singh, Saghir Ahmad was lifted to his buggi about half an hour after the arrival of Shabbir Ahmad. P. W. 1 Shabbir Ahmad has further stated that till Saghir Ahmad was shifted in the buggi he remained with him for about 10-15 minutes and upto that time darkness had not started setting in and it was still twilight. On 8-5-1978 sun set was at about 7 p. m. Therefore, darkness could have started settling in at about 8 p. m. From the statement of P. W. 1 it is clear that when Tarabu informed him of the occurrence sun had set in about 1/2-3/4 hours ago and when Saghir Ahmad was lifted in the buggi it was still not dark. Tarabu had covered a distance of two furlongs on foot from the place of occurrence for giving information to Shabbir Ahmad at his residence. After getting the information he proceeded towards the place of occurrence on foot covering a the same distance of two furlongs and then they waited for about 1/2 an hour and only thereafter Saghir Ahmad was shifted to the buggi of Ratan Singh, it means that Shabbir Ahmad was shifted to buggi at least 50 to 60 minutes after the incident. As per the statement of P. W. 1 Shabbir Ahmad, when Saghir Ahmad was shifted to buggi darkness had not settled. This indicates that incident most probably occurred at least an hour before darkness started settling in. As per the statement of P. W. 1 Shabbir Ahmad, when Saghir Ahmad was shifted to buggi darkness had not settled. This indicates that incident most probably occurred at least an hour before darkness started settling in. Had the incident occurred at 8 p. m. as alleged by the prosecution, entire surrounding should have been engulfed with darkness by the time Saghir Ahmad was shifted in the buggi and there was no question of there being any day light still available upon that time as according to P. W. 1 Shabbir Ahmad at least 50-60 minutes time was spent after the incident before Saghir Ahmad could be shifted in buggiand still upto that time darkness had not started settling. This clearly indicates that the incident had occurred much before 8 p. m. , most likely at about 6. 30 p. m. Same inference is deducible from the evidence of P. W. 4 Ratan Singh and P. W. 5 Onkar Singh. P. W. 4 Ratan Singh has categorically stated that he had witnessed the incident from his field and cross-examination of P. W. 1 Shabbir Ahmad further revealed that Ratan Singhs field was placed at a distance of more than 100 yards from the place of incident. Ratan Singh P. W. 4 further stated that from his field he could very well see the faces of the assailants as well as of the victim. It has also been specifically stated by him that though sun had set in but day light was still available at the time of incident and darkness had not prevailed. He further stated that when they had reached the bus stand only then the lamps were lighted and according to P. W. 1 Shabbir bus stand was about 4 furlongs from the place of occurrence. This distance was covered by buggi. As already pointed out above Saghir Ahmad was shifted to buggi about 50-60 minutes after the incident and it must have taken at least 15-20 minutes for them in reaching the bus stand after covering a distance of 4 furlongs in buggi. Evidence of P. W. 4 thus also creates a heavy shadow of doubt in our mind about the correctness of the prosecution version of the incident occurring at about 8 p. m. Similarly Omkar P. W. 5 stated that he had witnessed the incident from a distance of about 90-95 yards. Evidence of P. W. 4 thus also creates a heavy shadow of doubt in our mind about the correctness of the prosecution version of the incident occurring at about 8 p. m. Similarly Omkar P. W. 5 stated that he had witnessed the incident from a distance of about 90-95 yards. Had the incident occurred at about 8 p. m. it was not practicable for him to have identified the assailants in twilight from such a long distance. In cross- examination he frankly admitted that darkness had settled and lamps were lighted after about an hour of the incident. No artificial source of light is claimed to be available at the site of occurrence which also suggest that incident had occurred at a time when it was still bright. The evidence of the aforesaid three witnesses therefore, does not convincingly establish that the incident had occurred at about 8 p. m. as alleged by the prosecution and most likely the same had occurred much earlier while it was still day time. It could be between 6. 30-6. 45 p. m. if not exactly 6 p. m. as alleged by the defence but the fact remains that the incident had occurred at least more than an hour before 8 p. m. As already pointed out above admittedly the turn of the deceased for taking water from the water course was to commence from 7. 55 p. m. There is thus a great deal of doubt about the incident occurring during the turn of Saghir Ahmad. We find force in the submission of learned Counsel for the appellants that the incident had occurred at a time while the turn of accused party was continuing. 20. Learned Sessions Judge has inferred that since medical examination of Saghir Ahmad was done at 9. 30 p. m. the incident must have occurred at about 8 p. m. as alleged by the prosecution and the reasoning advanced by him is that as condition of Saghir Ahmad was serious because of this injuries, he was brought to bus stand and from there he was rushed to Muzaffarnagar in a Taxi and Muzaffarnagar was only 10 miles from the bus stand and if the incident had occurred at about 6 p. m. as alleged by the defence, medical examination of injuries of Saghir Ahmad would not have been deferred upto 9. 30 p. m. and the fact that he was medically examined at that hour leads to an inference of the incident occurring much after 6 p. m. In our opinion this inference of the learned Sessions Judge is conjectural. We do not know whether Shabbir Ahmad could get taxi without any loss of time and the injuries of Saghir Ahmad were examined by the doctor as soon as the victim arrived in the hospital. Even if incident had occurred at about 6. 30 p. m. there was nothing unnatural or improbable in injuries of Saghir Ahmad being examined at 9. 30 p. m. and from this fact alone it could not be concluded necessarily that incident occurred at about 8 p. m. and not earlier. 21. On a careful analysis of evidence of the prosecution witnesses and on consideration of facts and circumstances appearing in the case. We find that the prosecution has failed to establish beyond reasonable doubt that the incident had occurred at about 8 p. m. on the contrary the circumstances indicate that the same had occurred much earlier while it was still the turn of accused party for taking water from the water channel for irrigation of their field. This conclusion of ours further finds support from the fact that as per the evidence of the witnesses Saghir Ahmad had fallen near the northern mend of the field of Niyamat at a place which was removed by about 70-75 paces i. e. about 60 yards from the western corner of the field of Salamat and Saghir Ahmad. If Saghir Ahmad had gone to divert water to his field there was no question of his going so deep in west towards the field of Niyamat. Since the inspection of site could be made by the Investigating Officer only on 15-5-1978 the exact position of supply of water in the fields of Niyamat and Saghir Ahmad as existed on the day of occurrence could not be brought on record. It is admitted by P. W. 1 Shabbir Ahmad that he did not see as to at what place Saghir Ahmad had broken the bandh of Niyamat nor did he see which field of Niyamat was being irrigated. Shabbir Ahmad P. W. 1 was not present at the scene when water is alleged to have been diverted from the water channel. Shabbir Ahmad P. W. 1 was not present at the scene when water is alleged to have been diverted from the water channel. It is significant to note that P. W. 4 Ratan Singh has clearly admitted that at the time of incident water was still in the gool and had not reached the field of Saghir Ahmad. He also admitted that he did not notice in which field of the accused persons water was flowing. Similarly P. W. 5 Omkar Singh has stated that he did not know at what place water was diverted nor where bandh was placed. He further admitted that he did not know in which field water was flowing when the same was diverted but admitted that it had not reached the field of Saghir and was going in the fields situated in the west. 22. P. W. 1 Shabbir in clear words admitted that he reached the place of occurrence after the incident was over and assailants had fled away. P. W. 5 Omkar Singh claims to have witnessed the incident from the grove of Harbans which was placed at a distance of about 90-95 yards. The evidence of this witness has been discarded by the learned Sessions Judge himself. Undisputedly his own field was situated at distance of about 2-2-1/2 miles from the place of incident. Before the trial Court he stated that since his harvested crop was lying in the grove of Harbans he was present there but before the Investigating officer he did not state so. We are in agreement with the reasoning of the learned Sessions Judge that it was most unlikely that this witness would have brought his crop in the grove of Harbans from a distance of more than 2 miles. This witness was also inimical to the accused persons. We find no reason to differ from the learned Sessions Judge that evidence of Omkar Singh, P. W. 5 is not reliable and trustworthy. 23. So far as P. W. 4 Ratan Singh is concerned he stated that at the time of incident he was removing his harvested crop from his field to the thrasher of Ram Niwas. We find no reason to differ from the learned Sessions Judge that evidence of Omkar Singh, P. W. 5 is not reliable and trustworthy. 23. So far as P. W. 4 Ratan Singh is concerned he stated that at the time of incident he was removing his harvested crop from his field to the thrasher of Ram Niwas. Though his field was situated in the vicinity of the place of occurrence but he did not state before the Investigating Officer that at the time of incident he was present in his field and was removing harvested crop in late hours of evening. According to P. W. 1 Shabbir Ahmad the western corner of the field of Ratan Singh was about 100-120 yards from the place of occurrence. P. W. 4 Ratan Singh admitted that when he was removing harvested crop he was in the middle of his field, it would mean that he was placed at a much further distance and if incident had occurred at about 8 p. m. it could not have been possible for him to have identified the assailants from such a long distance. A serious doubt is further created in his presence on account of the fact that he denied to have seen any injury on the person of accused Samad which were found by Dr. Gyanendra D. W. 2 when he medically examined Abdul Samad on 8-5-1978 at 11 p. m. at Primary Health Centre, Purkaji. These injuries were still in existence when accused Abdul Samad was arrested by the Investigating Officer on 15-5-1978. His injuries were also noted in the G. B. by Constable clerk. 24. We have already found above that it was highly doubtful that the incident had occurred at about 8 p. m. and most likely the incident had occurred much earlier while it was still the turn of Niyamats party to make use of the canal water at that particular hour. A serious dent is also created in the prosecution story on account of non-explanation of injuries sustained by accused Abdul Samad. He himself lodge cross FIR. Ex. Kha-1 at 10. 10 p. m. on the same evening at Police Station Purkaji. A serious dent is also created in the prosecution story on account of non-explanation of injuries sustained by accused Abdul Samad. He himself lodge cross FIR. Ex. Kha-1 at 10. 10 p. m. on the same evening at Police Station Purkaji. Constable clerk Surendra Kumar P. W. 6 who prepared chik report had found injuries on the person of accused Abdul Samad when he came at the police station to lodged his reports as is evident from G. D. entry Ex. Kha-2. P. W. 10 S. I. Jagbir Singh. Investigating Officer also admitted that when he arrested accused persons on 15-5-1978 he noticed injuries on the person of Abdul Samad which he had noted in Ex. Kha-3. Abdul Samad also handed over to him copy of his injury report. Dr. Gyanendra Kumar P. W. 2 who had medically examined Abdul Samad at P. H. C. Purkaji on the same evening at 11 p. m. proved the injury report as Ex. Kha-5. He stated that injury No. 1 was an incised wound 3. 5 cms. x 1/2 cm. x scalp deep on the right side of top of head and it was a bleeding injury. He further admitted that since the said injury was on a vital and bony part it could be a lacerated wound also. By no stretch of imagination it could be concluded that the injuries of Abdul Samad were not received by him during the course of incident and it can be held safely that Abdul Samad had received injuries during the course of incident in which deceased was assaulted. The learned Sessions Judge has himself came to the same conclusion. He has further recorded a finding that these injuries were not superficial as they continued to exist till 15-5-1978 when accused Abdul Samad was arrested by the Investigating Officer. Learned Sessions Judge concluded "therefore, the accused Samad, no doubt has established that he had received injuries. There is also absolutely no explanation by the prosecution of these injuries. " Both the alleged eye-witnesses have denied the presence of any injury on the person of Abdul Samad. They have also given no explanation as to in what manner accused Abdul Samad could sustain injuries on his person. There is also absolutely no explanation by the prosecution of these injuries. " Both the alleged eye-witnesses have denied the presence of any injury on the person of Abdul Samad. They have also given no explanation as to in what manner accused Abdul Samad could sustain injuries on his person. Non-explanation of injuries of accused Abdul Samad has assumed much importance in this case on account of the fact that it is doubtful that the incident had occurred at about 8 p. m. as alleged by the prosecution and this failure on the part of the prosecution leads to an inference that the prosecution has suppressed the genesis and origin of the occurrence and thus has not presented true version and it probablises the defence plea that the injuries on the prosecution party were inflicted in exercise of right of private defence. On the other hand the defence version explains the injuries suffered by the deceased. In these circumstances charge against accused Abdul Samad and others cannot be held to have been proved beyond reasonable doubt. 25. It was argued by learned A. G. A. for the prosecution side that the defence version that accused Samad was first assaulted by as many as 4 persons and he used spade in self-defence and the evidence given in support thereof through D. W. 1 Yusuf is not trustworthy inasmuch as if four persons had assaulted Samad with lathi and danda, the number of injuries found on the person of Samad would have been much larger. It was also submitted that if accused Samad was only defending himself at least one or more injuries suffered by him should have been much more serious then the one found on his person. According to him the medical evidence belies the defence version that Samad was assaulted with lathi and danda only because injury No. 1 of Samad was an incised injury which could be caused by a sharp cutting weapon and not lathi. Firstly, we may point out that Dr. Gyanendra D. W. 2 who had medically examined Abdul Samad on 8-5-1978 has admitted in his statement that since injury No. 1 was on head on a bony portion the same could also be a lacerated wound caused by a lathi/danda. All other injuries were undoubtedly of a blunt object. Thus there is no glaring discrepancy in the defence version and the medical evidence. All other injuries were undoubtedly of a blunt object. Thus there is no glaring discrepancy in the defence version and the medical evidence. Secondly we may point out that merely for the reason that defence version also does not depict the whole truth the prosecution is not absolved of its burden to prove the case beyond reasonable doubt. The prosecution has to stand on its own legs and cannot derive any advantage of the weaknesses of the defence. It is also well-settled that where neither the prosecution nor the defence comes out with the whole truth and none of them clearly explains the injuries suffered on either side and the Court is left with guess and conjectures as to how and in what manner the incident had actually occurred, in such a situation it is safe and prudent to give benefit of doubt to the accused persons and acquit them. In the present case assuming for the sake of argument that the defence version as stated by the accused in his statement under Section 313 Cr. P. C. and by D. W. 1 Yusuf in his statement before the trial Court does not truly explain the situation in which both the side received injuries, it cannot be inferred that whatever the prosecution witnesses have stated must be accepted as true. The burden to prove plea of self-defence no doubt rests with the accused but that burden is not so strict than the one which lies on the shoulders of the prosecution. The accused is entitled to get benefit of doubt if his plea f self defence appears to be probable in the light of evidence on record and the attending circumstances appearing in the case. Since in the present case prosecution has not been able to discharge the burden of proving its case beyond reasonable doubts the accused persons are entitled to get benefit of doubt. 26. Learned Counsel for the appellants also-made a submission that the FIR was ante timed but we need not enter into this controversy as we have already found above that the prosecution case has not been established beyond reasonable doubt. 27. For the reasons given above we are unable to uphold the conviction and sentences of the appellants as recorded by the learned Sessions Judge in his order dated 29-11-1980. Accordingly this appeal is allowed. 27. For the reasons given above we are unable to uphold the conviction and sentences of the appellants as recorded by the learned Sessions Judge in his order dated 29-11-1980. Accordingly this appeal is allowed. The conviction and sentences of the appellants are set aside and they are acquitted of the offences charged for. They are on bail, they need not surrender, their bail bonds are cancelled and sureties discharged. Appeal allowed. .