( 1 ) THIS appeal arises from an order of conviction under Section 302, I. P. C. against the appellant Siddha Gopal who was sentenced to imprisonment for life. The other appellant Rajendra Kumar was convicted under Section 323/34, I. P. C. He was granted benefit of Section 4, of U. P. First Offenders Probation Act. In case of default in furnishing bond he was directed to serve out the sentence of three months R. I. ( 2 ) THE brief facts of the case are that the Chaks of Sidda Gopal appellant and Debi deceased were contiguous since there was no mend to separate these two Chaks. It was alleged that Siddha Gopal appellant used to cultivate some portion of the Chak of the deceased every year. When this year Siddha Gopal tried to cultivate some portion of the Chaks belonging to the deceased he raised an objection to this act of these appellants. Siddha Gopal agreed that at the time of harvesting the entire land of theirs will be measured and if any extra portion belonging to Debi was shown by him crop standing thereon shall be harvested by Debi. Therefore, the matter was amicably settled in the said manner. On the morning of 2-10-1977 when Siddha Gopal was harvesting his jwar crop Debi was present there. He raised an objection to the harvesting by Siddha Gopal without measurement of their fields. Appellant Siddha Gopal challenged Debi and tried to assault him. Debi retreated to his house and the crop was harvested by Siddha Gopal. ( 3 ) AFTER the incident it is alleged that Debideceased , his brother Iswar Dayal (informant), Khemraj, Parmeshwari Das and Ram Singh went to school to attend the function organised on the birthday of Mahamta Gandhi. They left the function a little before the end, at about 8. 00 a. m. When they reached near the house of Ghanshyam both the appellants (father and son) emerged out from the eastern side. Siddha Gopal was armed with a gun and Rajendra, his son, was holding a lathi. On seeing Debi along with others Siddha Gopal told him, he is creating too much nuisance in harvesting his crop every year. Now this nuisance must end today. Immediately thereafter a shot fired by the appellant Siddha Gopal struck Debi who he fell down to the ground and died instantaneously. On seeing Debi along with others Siddha Gopal told him, he is creating too much nuisance in harvesting his crop every year. Now this nuisance must end today. Immediately thereafter a shot fired by the appellant Siddha Gopal struck Debi who he fell down to the ground and died instantaneously. Iswar Dayal immediately caught hold of Siddha Gopal. A struggle started between this appellant and Ishwar Dayal. In the meantime appellant Rajendra Kumar wielded his lathi upon Ishwar Dayal to (sic) his freedom. On the intervention made by the witnesses Rajendra appellant fled from the spot. Siddha Gopal was arrested by the witnesses. Leaving dead body in the care and custody of the witnesses Iswar Dayal went to his house. He prepared a written report and proceeded for Police Station Dakore to lodge it there. The report was lodged by him at 9. 30 a. m. The distance between the Police Station and the village of occurrence is four miles. A check report Ext. Ka. 3 was prepared by Constable Jwala Prasad. On the basis of this written report a case was registered in the G. D. at serial No. 9. A true copy of which, Ext. Ka. 4, is on record. Shri S. K. Dixit, PW 4 commenced the investigation in the case. Iswar Dayal was interrogated at the above police station and thereafter was sent for medical examination to Dakore hospital. Station Officer, PW 4 immediately started for the spot thereafter. On arriving here he prepared inquest memo and other connected papers Ext. K. 5 and Ext. Ka. 6. The dead body was sent for post mortem examination through two constables. None of whom were examined in the trial Court. The statements of other witnesses were also recorded. He thereafter took into custody the gun belonging to appellant Siddha Gopal and prepared a memo Ext. Ka. 7. He also prepared a site map of the place of occurrence Ext. Ka. 8. Bloodstained earth and simple earth were taken through memo Ext. Ka. 9. After completing all the formalities he claimed to have taken into custody the appellant and interrogated him. The appellant was lodged in the lock up of the Police Station at 4. 30 p. m. His arrival was noted in the G. D. vide Ext. Kha. 2. After completing the arrest of Rajendra on 12-10-1977 PW 4, S. K. Dixit, has submitted the charge sheet, Ext. The appellant was lodged in the lock up of the Police Station at 4. 30 p. m. His arrival was noted in the G. D. vide Ext. Kha. 2. After completing the arrest of Rajendra on 12-10-1977 PW 4, S. K. Dixit, has submitted the charge sheet, Ext. Ka. 10, against both the appellants. ( 4 ) THE appellants had denied the prosecution charges altogether. Siddha Gopal had set up a counter version of the incident. According to him on 2-10-1977 at about 4. 30 a. m. he was moving towards his Chaks with his gun. As soon as he reached near the house of Ghanshyam Debi deceased, Badlu and Prabhu Dayal attacked him with lathi. An attempt by these three was made to snatch his gun and in the suffle to save his gun it accidently went of and struck Debi injuring him fatally. Leaving Debi there he came back to his house with his gun. He prepared a written report, which was scribed by his grand son Pradeep Kumar. He carried the same to the Police Station. His entreaty to register his cross- version fell on the deaf ears. The Station Officer told him point blank that he should go and lodge his report in the Court. His request for taking his gun into custody and sending the same to ballistic expert was accepted and his gun was taken but no memo was prepared. Next day on 3-10-1977 he filed his version in the Court of Chief Judicial Magistrate, Orai. He was medically examined in the jail hospital. Appellant Rajendra Kumar denied his presence and participation in the occurrence completely and stated that he had been roped due to his relation with Siddha Gopal. ( 5 ) THE prosecution in support of its case has examined only one eyewitness PW 2 Ishwar Dayal. Other witnesses examined in the case are formal in nature. They are Dr. M. K. Goyal, PW 1, Constable Sheo Pal Singh, PW 3. PW 1 had conducted the autopsy. PW 5, Dr. A. B. L. Saxena had examined Ishwar Dayal. There are some independent witnesses such as Khemraj and Ram Singh whose presence is admitted to the prosecution along with the deceased and the informant Ishwar Dayal at the relevant time. M. K. Goyal, PW 1, Constable Sheo Pal Singh, PW 3. PW 1 had conducted the autopsy. PW 5, Dr. A. B. L. Saxena had examined Ishwar Dayal. There are some independent witnesses such as Khemraj and Ram Singh whose presence is admitted to the prosecution along with the deceased and the informant Ishwar Dayal at the relevant time. But according to the statement of PW 2 Ishwar Dayal they had colluded with the appellants and had filed their affidavit denyingthe prosecution case. So in order to uphold the conviction of these appellants we have to examine closely the statement of the informant, a solitary eyewitness, Ishwar Dayal. ( 6 ) THE learned counsel for the appellants has urged that the incident occurred in the exercise of right of private defence of person as well as property. His injuries were also examined in jail by Dr. A. K. Ansari, DW 3. His arrest was effected on 2-10-1977 but he was lodged in jail on 3rd. He was taken into custody on the spot of occurrence by the Sub-Inspector. His arrest was not effected by the witnesses including Ishwar Dayal. ( 7 ) IT is further contended that there is absolutely no immediate motive for the incident and if the prosecution story is to be accepted as it is motive lies with the prosecution side for launching an assault upon Siddha Gopal. Not only the presence of witnesses is challenged seriously but the arrest of the appellant Siddha Gopal in the manner is also seriously challenged by the defence side. The post mortem examination report belies the prosecution version to a large extent. Scorching from a distance of five steps is alleged to be highly doubtful. Failure to offer any explanation for his injuries at the outset i. e. from the F. I. R. stage till investigation according to him damages authenticity of the prosecution story. It further makes probabte the defence case as set up by appellant Siddha Gopal in his S. 313, Cr. P. C. statement. He has further stated that the exaplanation for the injuries of this appellant offered by the prosecution is per se unacceptable. It is not expected from the son to batter his own father. He could have easily managed freedom of his father by giving one or two blows of the lathi on the head of PW 2. P. C. statement. He has further stated that the exaplanation for the injuries of this appellant offered by the prosecution is per se unacceptable. It is not expected from the son to batter his own father. He could have easily managed freedom of his father by giving one or two blows of the lathi on the head of PW 2. According to learned counsel for the complainant Shri Tejpal some of the facts are admitted such as time and place of occurrence as well as injuries by gun shot to Debi deceased. According to him the defence is estopped from raising a plea of right of private defence in the face of their admissions. They are precluded from doing so. principle of estoppel will apply in their case it is urged. ( 8 ) IN the present case there are two versions before the Court. First set up by appellant Siddha Gopal and the other set up by the prosecution side. There are certain features as earlier discussed, which are clearly available against the defence. But complete failure on the part of the prosecution up to the investigation stage to explain the injuries of appellant Siddha Gopal creates some dent in the authenticity of the prosecution story. This explanation was offered by the eye-witness informant too belatedly. How for this explanation is probable and practical is to be examined while discussing his statement. Injuries sustained by Ishwar Dayal PW 2 are also not free from doubt. Therefore conviction in this case depends on the ascertaiment of probability of these two versions. The failure of prosecution to examine any independent witness adds to its woe. The explanation that they had colluded cannot be given much credence because the Investigating Officer has not stated a word about them having joined hands with the appellants. Otherwise also the enmity admitted by PW 2 leaves hardly any room for these witnesses to collude with the appellants. ( 9 ) WE propose to take up the statement of PW 2 who not only is elder brother of the deceased Debi but also the informant of the incident. According to him as soon as they reached the house of Ghanshyam along with the deceased. Khemraj Parmeshwari Singh and Ram Singh they were accosted by appellant Siddha Gopal who was armed with gun and another appellant with lathi. According to him as soon as they reached the house of Ghanshyam along with the deceased. Khemraj Parmeshwari Singh and Ram Singh they were accosted by appellant Siddha Gopal who was armed with gun and another appellant with lathi. Siddha Gopal challenged Debi and told him that he is creating fuss at the time of his harvesting on every occasion, therefore it should be settled once for all. The statement was immediately carried out and a fire from his gun was discharged. This struck the deceased who fell down on the ground and when he was trying to reload his gun this witness pounced upon the appellant and held him from behind. Appellant Rajendra Kumar is said to have struck lathi belows on his person in order to free his father from his clutched. This witness claimed to have received some injuries upon dorsal and lateral side of the left hand. An abrasion on the middle of dorsal of the right hand. Two parallel contusions oblique in direction on the right shoulder to the left side of the back. The deceased had only a single shot injury, which caused extensive internal damage. According to him some blow of lathis struck him and some landed on the person of thesiddha Gopal in the scuffle. Siddha Gopal also fell down. When Ishwar Dayal, Khemraj, Parmeshwari and Ram Singh reached towards them Rajendra ran away after picking up fallen cartridge belt of his father to east. This witness continued to hold Siddha Gopal. Leaving the deceased and the accused with his gun in the custody of witnesses Khemraj, Parmeshwari Das and Ram Singh he came to his house, prepared a written report and proceeded to Police Station Dakore where at 9. 20 a. m. He lodged this report. According to him the incident had taken place at about 8. 30 a. m. The distance between the Police Station and the village is four miles. This report is Ext. Ka. 2. He has very clearly admitted that some litigation in the past between his father Pole and Sidha Gopal was contested on account of dispute over property. He has further stated that Siddha Gopal had assaulted him and Debi in the past at his house. A litigation was contested for this assault between them which was finally compromised. Section 107/117, Cr. P. C. proceeding was also contested between them. He has further stated that Siddha Gopal had assaulted him and Debi in the past at his house. A litigation was contested for this assault between them which was finally compromised. Section 107/117, Cr. P. C. proceeding was also contested between them. Siddha Gopal had lodged a FIR against his brother Debi and Badlu for committing theft in which a final report was filed. Though he has admitted that neither in his FIR nor in his statement to Investigating Officer factum of any litigation between Debi and the appellant is mentioned though has told it to Investigating Officer. This fact is not present in his statement made to the Investigating Officer. He was unable to offer any explanation for their omission. ( 10 ) FROM his statement especially an examination of para 5 it becomes apparent that the fields of Siddha Gopal and the deceased were not contiguous. In order to overcome this difficulty he had included that portion which was sold to Rajendra appellant by Debi. Kanoongo in 1978 allotted a contiguous plot of Siddha Gopal for this. He has denied the suggestion that the portion which was purchased by Rajendra Kumar from the deceased was contiguous from the very beginning to the plot of Sidha Gopal. He pleaded ignorance why the portion sold to Rajendra Kumar was numbered as 8/2. He is real brother of the deceased and has full knowledge about his property. It is not acceptable to us that he was not aware of this fact that a fresh number was allotted to that sold out portion. In this way it was the portion which belonged to appellant Rajendra Kumar which adjoins Debis field. Otherwise also from his statement it is apparent that the field of deceased and the appellant Siddha Gopal were not contiguous. There is absolutely nothing on the record to prove the correctness of the alleged motive that there was any dispute regarding cultivation of some portion of the land belonging to the deceased. It is further borne out from the circumstances that a separate number was allotted to the field sold by deceased to Rajendra Kumar. Thus the motive alleged by the prosecution stands falsified. He had also pleaded ignorance to the fact that the portion belonging to Rajendra Kumar was mortgaged on 10-5-1973 to one Ram Pal s/o Prabhu Dayal of the village for a price of Rs. 3500. Thus the motive alleged by the prosecution stands falsified. He had also pleaded ignorance to the fact that the portion belonging to Rajendra Kumar was mortgaged on 10-5-1973 to one Ram Pal s/o Prabhu Dayal of the village for a price of Rs. 3500. 00 and property was being cultivated by Ram Pal. He has also replied in the negative that this field was in possession of the abovesaid Ram Pal but he had clearly admitted that Ram Pal has instituted proceeding for mutation of his name over the said plot. Prabhu Dayal was murdered in 1979 and in that murder this witness was involved along with Parmeshwari Dayal. Lalloo was also an accused in that case but he is absconding. This witness and Parmeshwari Dayal were sentenced to life imprisonment on 12-11-1979. This witness had not stated that Debi on his return from the plot had disclosed anything about the altercation between him and Siddha Gopal to any one of his family including him. He admittedly was not present there. Debi died instantaneously. According to him no other witness was present to see the altercation. In the circumstances how this witness had dictated this fact in his FIR. No explanation was offered by the prosecution. He had not shown the spot to the I. O. where the altercation between the appellant and the deceased took place in the morning. The deceased and his brother were involved in number of cases of theft of crop. Although this witness has submitted neither an explanation nor denied the charge but the tenor of his denial even to this question gives a clear indication that the informant and his brothers were really involved in such offences. When this incident had occurred at 8. 30 a. m. the function was almost over. The spot of occurrence was just 60-70 steps away from the school where that programme was held. A large number of peoplewould have assembled on the spot and the prosecution could have easily produced some of them to establish factum of the arrest of Siddha Gopal at the spot but not a single witness including those persons nominated in the FIR were produced by the prosecution. The absence of independent witnesses in these circumstances proved the story of scuffle and arrest of the appellant as set up by the prosecution to be a complete ingenuity. The absence of independent witnesses in these circumstances proved the story of scuffle and arrest of the appellant as set up by the prosecution to be a complete ingenuity. Further this story of scuffle and arrest is rendered unworthy of any credence by the story of assault by Rajendra Kumar. It has been introduced to explain the injuries upon the person of Siddha Gopal. It renders story of holding the appellant from behind highly doubtful. According to this witness Siddha Gopal was at a distance of 5 steps from the place of occurrence. This fact is proved from the site plan, which according to this witness was prepared by Investigating Officer at his instance and on his information. Although in the trial Court he had reduced this distance to 3 steps initially and then made it 4 steps. The injuries of Siddha Gopal are on the front of his body. The accused who wielded lathi could have plied it on him from behind and not from the front. One or two blows on his head could have easily procured him freedom of his father. ( 11 ) THE presence of blackening in the injuries in an area of 3" also is a thorn in their flesh. According to the statement of Medical Officer PW 1 this injury could be caused while the barrel was in contact with the skin of the deceased. No doubt doctor has further stated that these injuries could be caused from a distance of 2/3 feet as well. It is further stated by Doctor PW 1 that this injury could also be result of the struggle to snatch the gun and if in such a situation any one received such a shot the blackening is probable. ( 12 ) THUS from the statement of doctor and the nature of the injuries it is apparent that the deceased was in close proximity with the appellant. The defence contention is that Siddha Gopal was assaulted with lathi and an attempt was made to snatch his gun. In this situation it cannot be said to be wholly improbable. The medical evidence makes this version more probable than the prosecution story of firing from a distance of 5 steps. It is common knowledge that one step is not less than 2. 5 ft. Thus 5 steps clearly mean over 12 ft from that distance. In this situation it cannot be said to be wholly improbable. The medical evidence makes this version more probable than the prosecution story of firing from a distance of 5 steps. It is common knowledge that one step is not less than 2. 5 ft. Thus 5 steps clearly mean over 12 ft from that distance. Even if it is 9-10 feet such a injury is not probable. As admitted by the Doctor that such injury can be caused if the barrel is in contact with the body or in the maximum it is at a distance of 2 -3 feet from it. In these circumstances the medical evidence does not corroborate the prosecution story. As earlier discussed even the admission of PW 2 Ishwar Dayal that the plots of the appellant were not contiguous but were separated by the field of appellant Rajendra which was given in mortgage several years before the incident and from the suggestion the same was in possession of Ram Pal, the mortgagee. ( 13 ) IN the circumstances the failure of motive alleged by the prosecution medical conflict and falsity of the manner of the assault leave no room for any inference than the one that the proscution has not come up in the case with clean hands. It raises a presumption in favour of the defence version that the incident may have occurred in the manner alleged by appellant Siddha Gopal and the gun went off when the prosecution side was trying to snatch it from the appellant. The defence injuries are proved by DW 2 Dr. A. K. Ansari who was posted as Medical Officer in the Jail Hospital. His injuries were examined on 3-10-1977 at the time of his being lodged in jail. Injuries were caused on his person and the contusion was found by Doctor to be 11/2". The doctor had admitted that in the scuffle these injuries could be caused. He has claimed that these injuries can be of 2-10-1977 at about 9. 10 a. m. in the morning. These injuries sustained by appellant Siddha Gopal could not be said to be self-suffered. The presence of these injuries is admitted to the prosecution side as well, although it has denied their authorship. They came up with a case that they were caused by the assault made on him, by Rajendra we do not find it probable. These injuries sustained by appellant Siddha Gopal could not be said to be self-suffered. The presence of these injuries is admitted to the prosecution side as well, although it has denied their authorship. They came up with a case that they were caused by the assault made on him, by Rajendra we do not find it probable. Thus we are not inclined to accept his statement. ( 14 ) THESE circumstances, in our opinion, are sufficient to warrant a conclusion that the preponderance of the probability on the basis of the fact and circumstances available on record indicts prosecution story and more clearly tends towards the correctness of the defence story. Failure to prove motivefurther adds insult to the injury. Non-production of independent witnesses despite their availability proves fatal for the prose-cution. ( 15 ) IN the result their appeal is allowed. The conviction of appellant Siddha Gopal under Section 302, I. P. C. is set aside. He is acquitted of the charge of murder. Appellant Rajendra is also acquitted for the charge for which he was granted benefit of Probation of U. P. First Offenders Act. His conviction is also set aside. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. Appeal allowed. .