JUDGMENT : S.L. KOCHAR, J. The appellants have preferred this appeal against the judgment dated 31-7-2003, passed by the learned Vth Additional Sessions Judge (Fast Track) Ratlam in S.T. No. 57/2003 whereby, convicted them under section 302/34 of the Indian Penal Code and each of them sentenced to undergo R.I. for life with fine of Rs. 500/- each and in default of payment of fine, they shall suffer additional R.I. for six months, also under section 323 of the Indian Penal Code appellant Bharat has been convicted and sentenced to undergo R.I. for three months with fine of Rs. 250/-, and in default of payment of fine, he shall suffer additional R.I. for one month. 2. The prosecution case in nut-shell as put forth before the learned trial Court is that on 4-4-2003 at about 10.00 a.m., complainant Reshambai (P.W.2) along with her husband Pannalal was present near a tube-well situated in her field. In the field itself, they had sown the cattle grass. Her husband Pannalal was lying on the cot and she was feeding water to cattle. At that time, appellants were grazing their cattle in nearby field and all of them were sitting outside the house of appellant Manohar. Two cows and two calves entered inside the field of Pannalal and started grazing. Reshambai shouted and asked the appellants to take their cows, on which appellant Bharat came to her and asked as to why she was crying specially when field was owned by him and dealt a lathi blow, which fell on her right arm. He also struck lathi on left thigh of Reshambai. Reshambai cried as to why she was being assaulted as their cattle had caused damage to their grass. Appellant Bharat went away from the field of complainant. Pannalal also asked the appellants as to why she was being assaulted. At that moment, appellants Meharban, Rameshwar, Manohar and Hakamsingh having Dharia and lathies reached there and appellant Meharban dealt a Dharia blow on the head of Pannalal and appellant Rameshwar gave an axe blow on right frontal region whereas appellants Manohar and Hakamsingh caused injuries by lathi on right hand and left shoulder. On alarm being raised by Reshambai, Dhanji (P.W.5) reached on the spot and shouted as to why appellants were assaulting Pannalal, at which appellants fled away from the field. The incident was witnessed by Dhanji (P.W.5), Mangu (P.W.1) and Suresh. On alarm being raised by Reshambai, Dhanji (P.W.5) reached on the spot and shouted as to why appellants were assaulting Pannalal, at which appellants fled away from the field. The incident was witnessed by Dhanji (P.W.5), Mangu (P.W.1) and Suresh. Pannalal became unconscious on the spot and was taken in a bullock-cart to Police Outpost Kharwa, where Reshambai (P.W.2) lodged the report (Ex-P/27) on zero number. On the basis of this report, in Police Station Taal, Crime No. 105/2003 was registered and injured were sent for medical examination. Dr. Naveen Kumar Nagar (P.W.4) examined Pannalal and gave Medico Legal Certificate (in short M.L.C.) (Ex-P/2) and M.L.C. (Ex-P/3) of Reshambai (P.W.2). He also examined appellant Hakamsingh on the same day and his M.L.C. report is Ex-P/4. Pannalal was admitted in District Hospital, Ratlam, where during the course of treatment, he died on 12-4-2003. After death of Pannalal, Merg Intimation Report (Ex-P/29) was recorded. On completion of inquest proceeding, dead body of deceased was sent for post-mortem examination, which was conducted by Dr. Kirpal Singh Rathore (P.W.3). The post-mortem report is Ex-P/1. Investigating Officer S.I. Vidhyadhar Mishra (P.-W.11) prepared the spot map (Ex-P/6) and also got prepared spot map (Ex-P/25) from Patwari Govind Vyas (P.W.10). Patwari has also given true copy (Ex-P/26) of land record vide Survey No. 293/1. From the spot, blood stained and controlled earth were seized through seizure memo (Ex-P/5) by Investigating Officer S.I. Vidhyadhar Mishra. After arrest of the appellants, weapons were seized on their disclosure statements. On 4-4-2003, appellant Hakamsingh also lodged the report (Ex-D/5) in the Kharwa Outpost, but on the basis of this report, case was not registered against Mohan, Aatmaram and deceased Pannalal on the ground that cognizable offence was not made out. On due investigation, appellants were charge-sheeted for the abovementioned offences. 3. Appellant denied the charges. According to appellants Hakamsingh and Rameshwar, they were in their field and grazing cattle. At that time, deceased Pannalal and his son Mohan and Aatmaram committed trespass and Pannalal caused injury by handle of Farsi on his head because of which he fell down. Again Pannalal attempted to cause injury to him by Farsi, at that moment, appellant Rameshwar in his defence, struck a lathi blow on the person of Pannalal because of which he fell on the ground. Again Pannalal attempted to cause injury to him by Farsi, at that moment, appellant Rameshwar in his defence, struck a lathi blow on the person of Pannalal because of which he fell on the ground. Hakamsingh and Rameshwar have also stated in their 313, Criminal Procedure Code statement that if Rameshwar would have not assaulted deceased Pannalal, Pannalal would have killed Hakamsingh. Defence of other three appellants named Manohar, Bharat and Meherban is of denial. Appellants examined Constable Sheshusingh (D.W.1) in their defence, who proved Daily Diary Entry (Ex-D/4 and D/5). The learned trial Court after examining the witnesses of both the parties and hearing them, convicted and sentenced the appellants as mentioned hereinabove. 4. We have heard learned counsel for the parties and also perused the entire record carefully. It emerged from the record that conviction of the appellants is based on eye-witnesses account of Mangubai (P.W.1, a child witness) daughter of Suresh, wife Reshambai (P.W.2) and nephew Dhanji (P.W.5) coupled with medical evidence and statement of Investigating Officer, S.I. Vidhyadhar Mishra (P.W.11). 5. The core question which falls for our consideration is whether the evidence of three eye-witnesses is worth placing reliance and whether appellants Hakamsingh and Rameshwar were acted in right of private defence of their person and property. 6. Mangubai (P.W.1) [In deposition of this witness, the learned trial Court has incorrectly mentioned her name and also her father's name. Her name is 'Mangubai' and not only 'Mangu' and she is 'daughter of Suresh' and not the 'son of Pannalalji.' She is the grand daughter (daughter's daughter) of Pannalal and Reshambai, which is clear from the contents of her statement and her case-diary statement (Ex-D/1)], has deposed that she was not knowing the appellants by name and identified appellants Bharat, Manohar and Rameshwar in the Court by face. She deposed that these three appellants got entrance of their cattle in her grand-father's (deceased Pannalal) field, which was objected by her grand-mother Reshambai whereupon, appellant Manohar caused lathi blow on her hand and on objection raised by Pannalal, Manohar started assaulting him. Pannalal sustained injury on his head and the same started bleeding. The further say of this witness is that she started crying and thrown by appellant Rameshwar, but she did not sustained any injury, she ran away from the spot and reached at the house of Dhanji (P.W.5). Pannalal sustained injury on his head and the same started bleeding. The further say of this witness is that she started crying and thrown by appellant Rameshwar, but she did not sustained any injury, she ran away from the spot and reached at the house of Dhanji (P.W.5). According to her Manohar, and Rameshwar were having Dharia and axe whereas appellant Bharat was possessing Farsi and other two accused were having lathies. In cross-examination, she has deposed that house of appellant Manohar was situated at the distance of 100 feet from tube-well of her grand-father Pannalal and in surrounding area, 25 to 30 houses of other villagers were situated and same were occupied by them. At the time of incident, when Reshambai (P.W.2) raised cry, inhabitants of all these houses assembled on the spot and witnessed the incident. She admitted presence of Anandibai, Manohar, Ratan, Sajjanbai, Kailash and others on the spot and all these persons lifted her grand-father and put in a cart. (i) In Para 4, she has deposed that she reported the incident to Dhanji (P.W.5) and when she went to call Dhanji, upto that time, accused ran away, (ii) In Para 5 she admitted involvement of abovementioned three persons in the quarrel and no other person. (iii) In Para 7, she has stated that before reaching to Police Outpost, her father met her and she went with him to village Khammakhedi. She did not reach to Police Outpost with her grand-mother and she was not interrogated by the police. (iv) In Para 8, the say of this witness is that she came to know the death of her grand-father after 10-12 days, only thereafter, she was interrogated by the police and her statement was recorded. She has also admitted that she has not disclosed the names of assailants of her grand-father and she was not knowing their names. She was confronted with her case diary statement (Ex-D/1) wherein, there are omissions of the fact that assailants got entered their cattle in the grazing land of deceased, appellant Manohar was having Dharia and other persons were possessing Farsi and she was thrown by appellant Rameshwar, thereafter, she went to the house of Dhanji (P.W.5). She failed to give any explanation for these material omissions, which amount to contradictions. She failed to give any explanation for these material omissions, which amount to contradictions. (v) In Para 9, she has also admitted that adjacent to the field of Pannalal, field of appellant Bharat was situated and in the field of Bharat, her father-in- law (deceased Pannalal) after collecting cattle taking them, which was objected by Bharat and he caused a lathi blow to Pannalal as a result of which, he fell on the ground, thereafter, he was brought from the field of Bharat to his field and made to drink water. She has also stated that appellant Bharat was saying that land was owned by him whereas her grand-father was also claiming the same and in the field where Pannalal was assaulted by lathi, no crop was sown and same was owned by appellant Bharat. (v) In Para 10, she has admitted that regarding land, quarrel ensued several times between appellant Bharat and her grand-father (deceased Pannalal) and several reports were lodged. In the field of Bharat where Pannalal was assaulted, blood stains were found and she shown the blood stains to Dhanji (P.W.5), Aatmaram and Kesharbai. (vi) In Para 11, she has denied that she did not pointed out the place of incident, the field of appellant Bharat. (vii) In Para 13, she has stated that the cattle were grazing on the embankment and appellants Hakamsingh and Rameshwar were present there. When her grand-father raised objection, both appellants replied that they were grazing the cattle on the embankment. The further say of this witness is that her grand-father gave a lathi blow on the person of Hakamsingh causing injury on his head and the same started bleeding, the report of which was also lodged by appellant Hakamsingh. After striking one blow again her grand-father tried to assault Hakamsingh by lathi. At that juncture, appellants Hakamsingh and Rameshwar assaulted her grand-father by lathi. Her grand-father sustained one lathi blow and fell on embankment, thereafter, other persons lifted him and took in a bullock-cart. She has also stated that at the time of incident Aatmaram and Mohan were not there and her grand-mother (P. W. 2 Reshambai) was in the house. (viii) This witness has not been declared hostile by the prosecution and there is no re-examination by the Prosecutor, therefore, prosecution is bound by her statement. She has also stated that at the time of incident Aatmaram and Mohan were not there and her grand-mother (P. W. 2 Reshambai) was in the house. (viii) This witness has not been declared hostile by the prosecution and there is no re-examination by the Prosecutor, therefore, prosecution is bound by her statement. It is clear from her statement that incident occurred in the field of appellant Bharat and deceased struck a lathi on the head of Hakamsingh causing injury, which started bleeding and again deceased tried to assault by second blow, at that moment, appellants Hakamsingh and Rameshwar assaulted him. (ix) The total statement of this witness shows that appellant Hakamsingh and Rameshwar acted in right of private defence of person of Hakamsingh and they were also having right of private defence of their property and Reshambai was not on the spot at the time of incident. . 7. Next eye-witness Reshambai (P.W.2), wife of deceased has deposed that on the date of incident, she, her husband and grand-daughter Mangubai (P.W.1) were in their house situated in the field near tube-well. At that time, appellants were grazing cattle in the field of appellant Bharat. While grazing, two cows entered in her field, complaint of which was made by her to appellants Manohar and Rameshwar. Appellant Rameshwar abused her filthily in the name of her mother and sister and appellant Bharat dealt a lathi blow on her right arm. The act of appellant Bharat was objected by her husband Pannalal whereupon, appellants Rameshwar and Manohar lifted Pannalal and thrown him in her grazing field. Appellant Manohar dealt a Dharia blow and appellant Rameshwar caused a blow by axe causing injury on the head of Pannalal. The hands and legs of deceased were broken. She raised cry, on which Dhanji (P.W.5) reached there, who was grazing his goats in nearby field. In the same breath, she has also stated that when she called Dhanji (P.W.5) he refused to come saying that if he will reach there they will assault him also. Dhanji reached on the spot with a bullock-cart and she took her husband Pannalal to Kharwa Outpost where his son Mohanlal also reached and report was lodged by Dhanji (P.W.5) and Mohan. Prosecution has not filed any such report lodged by Dhanji and Mohan. Dhanji reached on the spot with a bullock-cart and she took her husband Pannalal to Kharwa Outpost where his son Mohanlal also reached and report was lodged by Dhanji (P.W.5) and Mohan. Prosecution has not filed any such report lodged by Dhanji and Mohan. Report (Ex-P/27) proved by S.I. Vidhyadhar Mishra (P.W.11) has not been got proved or even shown to this witness. In examination-in-chief, she has not stated about lodging of any report by her in the Police Outpost whereas according to S.I. V. Mishra (P.W.1l), F.I.R. (Ex-P/27) was recorded by him at the instance of Reshambai (P.W.2). Since nothing has been stated by Reshambai about lodging of report by her, same cannot be used in favour of the prosecution to corroborate her version. 8. This is true that F.I.R. cannot be considered as substantive piece of evidence and same can be used for corroboration and contradiction to the statement of its author in the Court, but at the same time, importance of F.I.R. cannot be ignored because this is the first version of the complainant, on the basis of which, Investigating Agency started investigation and any kind of patching, addition, improvement and concoction can be checked on the basis of contents of the F.I.R. If F.I.R is not a genuine piece of document and concocted one, brought into existence in ante date and time, after due deliberation, same would cause serious dent to the prosecution case and prosecution case cannot be accepted unless there is reliable evidence and circumstances proved by prosecution. 9. The statement of Reshambai (P.W.2) is not duly corroborated by medical evidence of Dr. Nagar (P.W.4), who found only one incised wound on the right temporal region and no other incised wound caused by sharp and hard object was found on the skull or any other part of the body. Dr. Nagar, in all, noted six external injuries on the person of deceased Pannalal, out of which injury No. l was Incised wound on right temporal region, No. 2 was lacerated wound on frontal region of the skull. There was complain of pain on left shoulder and right scapula region, bruise on lower side of right leg and two bruises on both elbow joint. All the three bruises could be caused by fall. Underneath the place of pain, there was no internal injury, detected by Autopsy Surgeon Dr. Rathore (P.W.3). There was complain of pain on left shoulder and right scapula region, bruise on lower side of right leg and two bruises on both elbow joint. All the three bruises could be caused by fall. Underneath the place of pain, there was no internal injury, detected by Autopsy Surgeon Dr. Rathore (P.W.3). Deceased died on 12-4-2003 in the hospital and in the opinion of Dr. Rathore, cause of death of deceased was fracture of right parietal bone and haematoma underneath the injury, which caused damage to the brain. Deceased was under Coma and died because of damage to vital organs like brain and spleen. No external injury was found on external part of spleen. In the opinion of Dr. Rathore, only one injury was caused by sharp edged weapon and rest by hard and blunt object. Reshambai has nowhere stated about causing of any injury on abdomen by any of the appellant. In cross-examination, specific defence of right of private defence of person was put up to Reshambai (P.W.2), which was denied by her. 10. Prosecution has not explained the injury sustained by appellant Hakamsingh, a lacerated wound on vital part of the body, like head. This injury could not remain unnoticed by Reshambai (P.W.2) in view of bleeding, whereas appellants Rameshwar and Hakamsingh have taken specific defence that they acted in right of private defence of their property and person. 11. It is settled legal position that prosecution has required to prove its case beyond all reasonable doubt whereas accused are only required to prove their case by preponderance of probability. Accused can take more than one alternative defence. In the instant case, appellants Hakamsingh and Rameshwar have taken specific defence of right of private defence of their person and property whereas other three appellants had denied their presence on the spot. Mangubai (P.W.1) has shown only the presence of three appellants whereas Reshambai (P.W.2) named all the appellants. This is admitted position on the basis of the statement of both the eye-witnesses and document (Ex-D/4) that there was dispute over the land between complainant party and appellants and prior to the date of incident, there were several other incidents between them for which both the parties lodged report in the Police Station in time to time. 12. Though several independent witnesses were present on the spot, but not a single witness has been examined by the prosecution. 12. Though several independent witnesses were present on the spot, but not a single witness has been examined by the prosecution. Mangubai (P.W.1) has denied the presence of Reshambai (P.W.2) on the spot and she has also not stated about any kind of beating to Reshambai by appellant Rameshwar. On medical examination of Reshambai, Dr. Nagar (P.W.4) found swelling on right shoulder and pain on left leg. In Para 11, Reshambai (P.W.2) was confronted with her case diary statement (Ex-D/2) and major statement as deposed by her in examination-in-chief was missing. There is contradiction on material particulars i.e. use of Dharia by appellant Manohar and axe by appellant Rameshwar, throwing of Pannalal (deceased) from his field to the field of Bharat and calling Dhanji (P.W.5) for help are not available in her case diary statement. As a matter of fact, she has given altogether a new story in the Court. 13. In view of the contradictory statements of Mangubai (P.W.1) and Reshambai (P.W.2) about the incident as well as their presence, it is difficult to separate the truth from the falsehood. 14. Dhanji (P.W.5) has deposed that on the date of incident at about 11.00 a.m., appellants Hakamsingh, Rameshwar and Meharban were assaulting Pannalal (deceased), appellant Bharat was having axe whereas appellants Manohar and Rameshwar were having lathi. Pannalal sustained injury by axe on his head and fell on the ground. After fall also, all the three were assaulting the deceased. According to this witness, only three accused i.e. Hakamsingh, Rameshwar and Meharban were assaulting the deceased and they were not having axe, axe was with appellant Bharat and he has not deposed that Bharat assaulted the deceased by axe. He has further stated that after falling of the deceased on the ground, all the three continued to assault him and he was witnessing the incident from a long distance. He reached near deceased when appellants Rameshwar, Hakamsingh and Meharban went away from the scene of occurrence and found Reshambai (P.W.2) and Mangubai (P.W.1) on the spot. He has also given a contradictory statement about use of weapon and, three accused, who assaulted the deceased were not having sharp edged weapon. Dhanji (P.W.5) is also the nephew of deceased. His father and deceased were real brothers as admitted by him in Para 5 of his deposition. He has also given a contradictory statement about use of weapon and, three accused, who assaulted the deceased were not having sharp edged weapon. Dhanji (P.W.5) is also the nephew of deceased. His father and deceased were real brothers as admitted by him in Para 5 of his deposition. Dhanji (P.W.5) was also contradicted with his case diary statement (Ex-D/3) in Para 17 of his deposition and he failed to give explanation for the specific overt act of appellants Hakamsingh, Meharban and Rameshwar, causing injury by axe on head by Pannalal and several other facts. He has also made departure from his original statement (Ex-D/3) given before the Police. 15. In view of the aforesaid marshalling of statement of all the three eye-witnesses, we come to the conclusion that prosecution has failed to explain as to why independent witnesses though present, could not be examined, all the three witnesses have given a contradictory statement with each other about the description of the incident, Reshambai (P.W.2) and Dhanji (P.W.5) failed to explain the injuries sustained by appellant Hakamsingh, a lacerated wound on skull, all the three witnesses are interested, inimical and partisan witnesses and their version has not been corroborated on material particulars by the medical evidence as well as contradictory to their statements recorded by police. Under all these circumstances, prosecution has failed to prove its case against the appellants beyond reasonable doubt. 16. On the other hand, appellants Hakamsingh and Rameshwar have taken specific plea of acting in right of private defence of their person and property and their version has been accepted by Mangubai (P.W.1). They lodged report (Ex-D/5) first in point of time and Reshambai (P.W.2) also admitted lodging of their report. Dr. Nagar (P.W.4) found injury, a lacerated wound on skull of appellant Hakamsingh and same was accepted by Mangubai (P.W.1) caused to this appellant by deceased and when deceased again tried to gave second blow, at that moment, injury was caused to deceased in the same transaction in quick succession. Dr. Nagar (P.W.4) found injury, a lacerated wound on skull of appellant Hakamsingh and same was accepted by Mangubai (P.W.1) caused to this appellant by deceased and when deceased again tried to gave second blow, at that moment, injury was caused to deceased in the same transaction in quick succession. Therefore, in our opinion, the appellants have proved their defence by preponderance of probability and their act is squarely covered by provision under section 97 of the Indian Penal Code which gives right to a person to defend his body and section 100, Class-II gives right to cause death of opponent in exercise of right of private defence of body when person has reasonable apprehension of grievous hurt by the opponent. In the instant case, deceased caused injury by lathi on the head and again raised lathi to cause second blow, that was sufficient for sustaining grievous injury by appellant Hakamsingh and thereafter, appellants Hakamsingh and Rameshwar caused injury to deceased that could be well within their right and only one fatal blow was caused on the head, therefore, they cannot be held liable for exceed of right of private defence of their person and deceased also committed criminal trespass, therefore, appellants were also having right of private defence of their property. 16-A. It is clear from the aforesaid discussion that deceased was aggressor, therefore, appellants were having right of private defence of their person. The Supreme Court in case of Genda Singh and others vs. State of U.P. reported in 2008 Vol. 5 Supreme Today, 442 in Paras 6 and 11 has held that "the accused only needs to show that the preponderance of probabilities is in favour of this plea. The right of self defence is a very valuable right, serving a social purpose and should not be construed narrowly." While dealing this issue, the Supreme Court has placed reliance on Supreme Court judgment, reported in AIR 1979 SC 391 and AIR 1971 SC 1857 (also see Kashiram and others vs. State of Rajasthan, 2008 Vol 1 SCC (Cri.) 608. Hanumantappa Bhimappa Dalavai and anr. vs. State of Karnataka, J.T. 2009 Vol .4 SC 634 and Ranveer Singh vs. State of M.P., 2009 Vol. 1 Supreme 395). 17. Ex-consequente, this appeal succeeds. Conviction and sentence passed against the appellants by the learned trial Court are hereby set aside. Hanumantappa Bhimappa Dalavai and anr. vs. State of Karnataka, J.T. 2009 Vol .4 SC 634 and Ranveer Singh vs. State of M.P., 2009 Vol. 1 Supreme 395). 17. Ex-consequente, this appeal succeeds. Conviction and sentence passed against the appellants by the learned trial Court are hereby set aside. Appellants No. l Hakamsingh, No. 4 Bharat and No. 5 Meharban are on bail. Their bail bond and surety bond stand discharged. Learned trial Court is directed to release appellants No. 2 Manohar and No. 3 Rameshwar forthwith, if not required in any other criminal case. 18. Office is directed to send a copy of the judgment to the trial Court immediately along with the record.