S. Shamsul Hasan, J.

1. The solitary appellant in this case has been convicted under Sec.304, Part 2 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for eight years. Eleven persons were tried in this case for offences under Secs.302/149 and 148 of the Indian Penal Code. Some were also charged under Secs.323, 324 and 147 of the Indian Penal Code. Except Bhuna Singh the appellant, the rest have all been acquitted. Appellant bhuna Singh has also been held not guilty under Secs.302/149 and 326/149 of the Indian Penal Code.

2. The prosecution case on the basis of the first information report lodged on 15-10-1969 at 9 p. m. by Umrao Yadav P. W.4 is to the effect that on that date at 4 p. m. the cattle of the appellant and one Jadubansi Singh were found grazing in the land of the informant and his brother Radhey Yadav. The informant and Radhey Yadav started driving the cattle to the pound. The appellant and other accused went to the village and after arming themselves came to the place of occurrence and on the order of Jadubansi Singh, the appellant struck radhey Yadav in the Panjari with bhala. On this hulla was raised and the people who were working at the nearby field arrived at the place of occurrence. Parmeshwar Yadav was also assaulted.

3. The defence version of the occurrence based in Exhibit. A is to the effect that no occurrence had taken place as alleged by the prosecution. It is further stated that the prosecution party were the aggressors and some of the accused persons had seize 5. the catde of the prosecution party which were grazing in the field of Kamalmukhi Singh and attempt to rescue the cattle of the prosecution party was forcibly made and in course of which the prosecution party inflicted grievous injury on four persons, one of whom was an accused in this case also. Their further defence as the trial was that they had a right of private defence as soon as they had apprehended danger to their lives, and the injuries were inflicted in their defence.

4. The appellant deserves to be acquitted on the basis of the findings of the trial court which has not been assailed by the learned Counsel for the State. It has been found by the trial court as follows :

"it appears that there was a trial of strength between the parties in which deadly weapons were freely used on both sides. The genesis of the occurrence as alleged by the defence to be more probable and approaching the truth. "

The trial court has further held as follows :

"i, therefore, find that both the parties have not come to court with a correct picture of the occurrence. "

It has also stated :

"it appears that both the parites had disclosed only half truth and have not placed before the court the correct picture of the entire occurrence. Upon the evidence I am satisfied that the genesis of the occurrence as alleged by the prosecution is not correct and it appears that the genesis of the occurrence as alleged by the defence is more probable and approaching the truth. This being so, it has necessarily been concluded that the prosecution party was the aggressor and had opened the assault. "

In view of these findings it is well settled by a decision of the Supreme court that if the prosecution does not come out with a whole truth and correct picture in regard to the whole of the occurrence is not thought that, the whole of it deserves to be rejected. It was not necessary for the defence to come out with any story which is half true. The case has to succeed or fail on the consideration of the prosecution story itself. The result of the aforesaid finding is that the entire case of the prosecution deserves to be disbelieved. That being the position the question of right of private defence by the appellant does not arise at all. It is also apparent on the basis of the findings of the learned trial court that the appellant did not exceed the right of private defence. When the prosecution party has been held to be aggressor, who ha