H.C.MITTAL, J. - (1.) APPELLANT Chhote has been convicted of the offence under Section 302, I.P.C. and sentenced to life imprisonment and a fine of Rs. 500/-and under Section 323/34, I.P.C. and sentenced to R.I. for six months, Ghasite has been convicted of the offence under Sections 307/323/34, I.P.C. and a sentence of R.I. for 7 years and a fine of Rs. 500/-and another R.I. for six months, and Jamuna and Munshi Lal have been convicted for the offence under Section 323, I.P.C. and sentenced to six months' R.I. by a judgment and order dated 22.12.78 in S.T. No. 292 of 1977 by the Additional Sessions Judge, Kanpur Dehat. Aggrieved both by conviction and sentence, they have come up in appeal.
(2.) THE facts giving rise to the prosecu­tion may be briefly narrated in the form that one Daya Shanker died on account of stab injury and his brother Kripa Shanker received simple hurt in the nature of Stab wound on 17.4.1977 in village Shekhupur P.S. Shivli District Kanpur Dehat. A first information report about the occurrence was lodged at the police station at 8.20 p.m. by Kripa Shanker, the distance of Police Station being 9 miles. The prosecution version in respect of the occurrence was that in the said evening Anil Kumar son of another their brother Hari Shanker was grazing cattle in the river bed. The accused persons also arrived there with their cattle and mixed them with the cattle of Anil Kumar, to which he objected. The accused tried to assault Anil Kumar and he in order to save himself ran around amongst the animals. In the meanwhile Kripa Shanker and Daya Shanker, who were going somewhere else also reached the place of occurrence and challenged. Whereupon Munne (Munshi Lal) exhorted that he had come for help and should be done to death. Thereupon Ghasite accused caused Barachhi injury while Jamuna accused caused Lathi injury to Kripa Shanker in the meanwhile Daya Shanker also came and tried to save his brother. Whereupon Munshi Lal again exhorted to kill and Chhote gave him a blow of Barachhi in the chest. The occurrence was seen by several persons of the village, but the accused however left crossing the river to their village. Daya Shanker was attempted to be taken to the hospital or police station but died in the way. The defence version, on the other hand, was that the cattle of Kripa Shankar and Daya Shankarhad gone to the barnes of Chhote and caused suitable damage. Whereupon Chhote, Ghasite and others tried to take them to the cattle pound. In the meanwhile Daya Shanker and Kripa Shankar arrived and tried to snatch the cattle. They were armed with gun and when the same was aimed at towards the accused persons, they reacted in self defence and caused minor injuries. There was neither any intention nor pressure to cause death.
(3.) WE have heard the learned counsel for the appellants and the Government Advocate at length and gone through the record of the case that is, the evidence of the witnesses. We will frankely say in the very begining that no case for self defence could be said to be established, but the defence is not required to establish a case to the hilt and if the defence succeeds in creating an impression that the case put forward by the prosecution is not wholly true and there was another possibili­ty of the occurrence having taken place in the form suggested by the accused. The defence will be entitled to benefit thereof. It may be true that when the excemptions are to be proved to the general law, the burden under section 106 of the Evidence Act may be upon the accused but where the accused is able to show a possibility of the occurrence with a major difference from that suggested by the prosecution that will not be a burden of defence but a weakness of the prosecuttion for which the defence will get benefit-;