JUDGMENT 1. 1. Appellant Cheldan was tried by the Additional Sessions Judge, Sikar for the offence under section 302 I.P.C. for the murder of Mst. Roori. He was convicted for the same and was sentenced to imprisonment for life.Aggrieved by the order of conviction and sentence passed by the Additional Sessions Judge, Sikar vide his judgment dated 23-11-1972 in Sessions Case No. 43 of 1971, the appellant Cheldan has preferred this appeal. 2. The prosecution case, in brief, is that as per site plan Ex. P/6 the agricultural field No. 214 known as Dudhoni belongs to and is in cultivatory possession of the complainant Nanagram Mali. The agricultural fields Nos. 394 and 109 are the fields in the prosecution of Bharudan Baretha. Field No. 110 is in the cultivatory possession of the complainant Nanag Ram Muli, and the field No. 111 though in the Khatedari of the appellant, is in cultivatory possession of the complainant Nanagram. It is alleged that the crop was sown in the field No. 214 as also in field Khasra No. 111 and plants grew up and the crop needed weeding out the grass. It is alleged that on 27-7-71 Nanagram along with his mother Mst. Badami P. W, 14 and his wife Mst. Roori aged about 19 years, had gone to the field No. 214 Dudhani' to weed out the grass. At about 6 p. m. appellant Cheldan and the other accused Shambhuden (since absconding), cousin of Bherudan, came in the field armed with two muzzle loading guns and asked the complainant party why they were uprooting the grass from their field. Cheldan thereupon hurled abuses to them in obscene language and asked them to get out of the field otherwise he will shot them. In turn, Mst. Roori also rebuked Cheldan. Cheldan appellant fired his gun towards Mst. Roori, pellets of which hit her chest. Mst. Roori fell down, Shambhudan also tried to aim the gun at them. Mst. Badami ran towards him and caught bold of him and snatched his loaded gun. The complainant Nanag Ram also caught hold of the appellant Cheldan and snatched his gun. The appellant as well as Shambhudan fled away leaving their guns and a bag containing some ammunition. Mst. Roori succumbed to her injuries. An oral report was lodged on the same day at about 7.30 p. m. by Nanag Ram PW. The complainant Nanag Ram also caught hold of the appellant Cheldan and snatched his gun. The appellant as well as Shambhudan fled away leaving their guns and a bag containing some ammunition. Mst. Roori succumbed to her injuries. An oral report was lodged on the same day at about 7.30 p. m. by Nanag Ram PW. 2 who was accompanied by Rameshwar Lal and Bodu Ram at the police station, Srimadhopur . This report was scribed as first information report and it is Ex. P/2. The Investigating Officer reached the spot late in the night. He left some constables to guard the dead body. He apprehended the accused Cheldan from his house. In the next morning he inspected the situation and prepared the site plan Ex. P/8. He found the dead body of Mst. Roori lying on the border of field 'Dudhani'. The unloaded gun Ex. A. 1 belonging to the accused-appellant Cheldan and the loaded gun Ex. A. 2 (alleged to be of the 'accused Shambhudau) and a bag Ex. A. 3 containing a bottle of gunpowder Ex. A. 5 a carbon of cooper caps (Ex. A 6) and the small pellets of stone Ex. 7 were found lying near the dead body. A turban alleged to be that of the appellant (Ex. A.8) was also found lying near the boundary line of the field of Bhagwan Ram. The seizure memo Ex. P/9 was prepared. Samples of blood stained coil were also taken, seizure memo for the case is Ex. P 10 . The inquest report was also prepared which is Ex. P 11. The seizure memo of the guns and bag Ex. P 7 was also prepared by him. 3. Autopsy of Mst. Roori was performed by Dr. Ramakant and be found til* following injuries on her person 1. Lacerated wound 1/4" x ⅛" x 1/2" on the right side of chest on the star-nuium at the level of nipple; 2. Lacerated wound 1/4" X 1/4" X 1/4' on the left side of abdomen 4" from mid line and 5" above the amblicus. 3. Lacerated wound 1/4" X 1/4" X 1/4" on the left side of the chest 3" below nipple. 4. Lacerated wound ⅛" X ⅛" x ⅛' below injury No. 2 5. Lacerated wound 1/2" X ⅓" x 1/4" on the left lower part of abdomen, 4" below injury No. 4. 3. Lacerated wound 1/4" X 1/4" X 1/4" on the left side of the chest 3" below nipple. 4. Lacerated wound ⅛" X ⅛" x ⅛' below injury No. 2 5. Lacerated wound 1/2" X ⅓" x 1/4" on the left lower part of abdomen, 4" below injury No. 4. He found slight bruising present round all the above wounds at their edges. The edges of the wounds were inverted. The left side of the thorax cavity was found full of blood. There was laceration of left. pluras due to injury caused to lungs. He found a lacerated wound 1/4" X 1/4" X 1/4" on the anterior aspect, middle part of the left lung and another lacerated wound 11/4" x 1" x ⅓" on the dedial aspect of the left lung. There was a lacerated wound on the left ventricle 1/4" x 1/4" x 1/4" having one lead missile (pellet) which was taken out by him. He also took out two missiles from the right side of the abdomen, one missile from large intestine and another missile from the lower part of kidney. He also sealed four lead pellets and one stone pellet which he took from the body of Roori and sent the same vide letter Ex. P 4 to the police.All the injuries were found to be ante-mortem and caused by gun. He opined that the cause of death of Roori was haemorrhage caused by the aforementioned injuries to vital organs like heart, lungs and kidney. 4. The injuries on the person of Mst. Badami were examined by Dr. K. C. Parikh and found the following injuries on her person : 1. Circular abrasion 1" diameter on the right cheek near and below the lip ; 2. Abrasion 1/2 x 1/4" behind the left mandible joint. 3. Abrasion 1/4" x 1/4" above the inner part of left clavical. The gun A. 1 was got inspected by Shri Pattu Khan PW 12 an Armour and he vide his report Ex. P 27 opined that the gun Ex. A 1 was in working condition. The blood stained Lugari and Kanchli of Mst. Roori Ex. A 8 and Ex. A 9 respectively turban Ex. A 4 which were sent to the Chemical Examiner and Serologist were found to be positive for human blood. Their reports are Ex. P 24 and Ex P 25 respectively. A 1 was in working condition. The blood stained Lugari and Kanchli of Mst. Roori Ex. A 8 and Ex. A 9 respectively turban Ex. A 4 which were sent to the Chemical Examiner and Serologist were found to be positive for human blood. Their reports are Ex. P 24 and Ex P 25 respectively. After completing the usual investigation, a challan under section 302 I.P.C. against the accused-appellant Cheldan and under section 303 I.P.C. against Shambhudan (since absconding) was presented in the court of the Additional Munsif Magistrate, Noon-ki-thana ; who after necessary inquiry committed the appellant to the court of Additional Sessions Judge, Sikar. The Additional Sessions Judge, Sikar after trial convicted and sentenced the appellant as mentioned above. 5. In order to prove its case, the prosecution examined as many as 18 witnesses. The appellant denied his complicity in the crime. In his statement under section 342 Cr.P.C. 1896, he admitted that the field 'Dudhani' bearing Khasra No. 214 measuring 3 Bighas and 19 Biswas belonged to the complainant Nanag Ram. He also admitted that a small piece of land bearing Khasra No. 110 measuring 50 bighas. As situated on the southern and eastern corner of Nanagram's field, but he has pleaded ignorance as to who is in the possession. He asserted that the land bearing Khasra No. 214 measuring 14 Biswas is in his khatedari and also in possession and denied the cultivatory possession of Nanagram over this field. He also admitted that gun Ex. A.l, bag Ex. A. 3 bottle of gun powder Ex. A. 5, copper cap Ex A.7 belonged to him. The defence version is that on 27. 7. 71 at about 6 p. m. while he was going from his house to his well, he saw Nanagram, Mst. Roori and Mst. Badami weeding out the grass from his field khasra No. 111. He asked them no to do so. Thereupon Mst. Roori started hurling abuses on him. He caught hold of 'Renpan (an instrument used for weeding out the grass) of Nanagram. Mst. Roori and Mst. Badami abused him. Mst. Badami clasped him. Nanagram inflicted a lathi blow on his hand while Mst. Roori gave a renpan' blow on his left hand. Nanagram wanted to snatch his loaded gun Ex P. 1 which was hanging on his left shoulder. He caught hold of the gun Ex. Mst. Roori and Mst. Badami abused him. Mst. Badami clasped him. Nanagram inflicted a lathi blow on his hand while Mst. Roori gave a renpan' blow on his left hand. Nanagram wanted to snatch his loaded gun Ex P. 1 which was hanging on his left shoulder. He caught hold of the gun Ex. A. 1 from the barrel-end while Nanagram caught hold of it from the butt end. In the scuffle the gun got fired and its charge hit Mst. Roori. He has denied that the turban Ex. A. 4 belongs to him. In his defence he has examined DW. 1 Dr. Ramakant Purohit who had examined the injuries on the person of the appellant. The injury report is Ex. D 8. DW. 2 Dr. B. P. Jangid, who had x-rayed his left forearm and found a fracture of left radius bone in the middle has also been examined. The x-ray report is Ex. D. 9. He has also filed the parcha settlement and Khewat Khatoni in respect of the field bearing Khasra No. 111. He has pleaded ignorance as to whether gun Ex. A. 2 belongs to the co-accused Shambhudan or not. He has also pleaded that Shambhudan was not with him at the time of the alleged occurrence. 6. It cannot be disputed that Smt. Roori died of gun shot injuries. Besides the evidence of the eye-witnesses e. g. Nanga P.W. 2, and Smt. Badami P.W. 14, and Bhagawana son of Sheoji, Mala PW. 7 and Bhagwana PW. 1 who reached the scene "of occurrence soon after and saw the dead body of Roori lying in the field of injured by gun-shot, there is the medical evidence of Dr. Ramakant PW. 18 who performed the autopsy of the dead-body of Mst. Roori. The post mortem examination report is Ex. P/3. Dr. Ramakant has stated that injury No. 3 mentioned in the post-mortem Teport namely lacerated wound 1/2" x 1/4" on the left side of breast 3" below the nipple of Mst. Roori corresponded to the internal injuries found on her heart namely lacerated wound on the left ventricle 1/2" x 1/4" x 1/4". Both these external as well as internal injuries were caused by one missile which was found in the left ventricle 1/2" x 1/4" x 1/4". Roori corresponded to the internal injuries found on her heart namely lacerated wound on the left ventricle 1/2" x 1/4" x 1/4". Both these external as well as internal injuries were caused by one missile which was found in the left ventricle 1/2" x 1/4" x 1/4". Both these external as well as internal injuries were caused by one missile which was found in the left ventricle. All the injuries were antemortem. In his opinion the cause of death was haemorrhage and shock caused by the injuries on the vital part-heart and kidney which was caused by missiles found in the body. Thus it has been fully established by the prosecution that the death of Mst. Roori was homicidal death. 7. The first contention raised by the learned counsel for the appellant is that the appellant committed the alleged act in his right of private defence. According to him the field Khasra No. Ill was in khatedari of the appellant and the appellant was in,possession thereof. The complainant party began to weed out the grass from this field. When the appellant went there, be found the complainant party weeding out the grass from his field. He asked them not to do so. The complainant party surrounded the appellant and inflicted simple and grievous injuries to him. Under the circumstances the right of private defence of person and property accrued to the appellant and as such the appellant could not be held guilty for murder. Another contention raised by the learned counsel for the appellant is that the alleged act was committed under the impulse of grave and sudden provocation as the complainant party when asked not to weed out the grass from the field of the appellant, it surrounded the appellant, caused the injuries and hurled abuses on him. The next contention of the learned counsel for the appellant was that it was not intentional fire by the appellant on Mst. Roori with the intention to kill her but the shot was fired by accident in the scuffle. It was further contended that the prosecution has failed to give the true version of the incident. It has changed the venue of the incident and the prosecution case, should therefore be thrown out. Roori with the intention to kill her but the shot was fired by accident in the scuffle. It was further contended that the prosecution has failed to give the true version of the incident. It has changed the venue of the incident and the prosecution case, should therefore be thrown out. Lastly in the alternative, it has been contended that in case the right of private defence has been exercised by the appellant the offence against him is either under section 304 part I or 306 part II I.P.C. and the sentence already undergone would meet the ends of justice. 8. It may be said that when an accused pleads that his case is covered by any exceptionist is for the accused to prove the existence of facts bringing his case in the per view of the exception. It may, however be said that this burden is not so heavily placed on the accused as it is lays on the prosecution to prove the guilt of the accused beyond reasonable doubt. The accused would be entitled to the benefit of the exception even when he brings on record the circumstances which the court may consider that there was reasonable probability that this story might be true. However the burden which rests on the prosecution to establish its case beyond reasonable doubt, it neither neutralised nor shifted because the accused pleads any exception or the right of private defence. The prosecution must discharge its Initial traditional burden to establish the complicity of the accused and until it does so the question that the accused has acted in self defence or not does not arise. 9. So far as the pleas of the accused that he acted under the right of private defence or under grave and sudden provocation or that an accidental not intentional discharge of gun fire which hit the deceased during the scuffle are concerned, the burden to prove the existence of such circumstances which might go to establish or even probabilise them lay on the accused. In order to discharge its burden there is no evidence worth the name on record on behalf of the accused except his bald statement given under section 342 Cr.P.C., 1898. In order to discharge its burden there is no evidence worth the name on record on behalf of the accused except his bald statement given under section 342 Cr.P.C., 1898. We are aware that it is not necessary for the accused in every case to examine witnesses in defence and he can still get the benefit, if the facts bringing his case in the exception is probabilised by the prosecution evidence. In the present case the accused has shown the presence of Akhaidan, Baklan, Smarathdan and Sohan Jogi at the time and place of the alleged incident but none of these witnesses has been examined. The presence of Sohan Jogi at the time of occurrence has been admitted by P. W. 7 Mala. Thus the non-production of these witnesses, particularly of Sohan Jogi whose presence was undisputed, raises an adverse inference against the appellant. Nothing has been elicited from the prosecution evidence in this regard. Thus the bald statement of the accused-appellant under section 342 Cr.P.C. cannot inspire confidence to make his explanation probable. On the other hand the fact has come on record the it the incident took place in the field khasra No. 214 kaown as Dadhani which undispatedly was in possession of the complainant party. There is no force in the contention of the learned counsel for the accused that body of Mst. Roori was subsequently dragged from the field khasra No. Ill to the field khasra No. 214 as there is nothing on record to draw any such inference. Though the field khasra No. 111 is admittedly in the khutedari of the accused but dispute as to the cultivatory possession thereof. According to the complainant party this field khasra No. Ill is in their cultivatory possession and they had sown the crop therein, while according to the appellant he was in the cultivatory possession and it was he who had sown the crops therein. However, it may be said that there seems to be some dispute between the parties on the cultivatory possession of this field khasra No. 111. However, it may be said that there seems to be some dispute between the parties on the cultivatory possession of this field khasra No. 111. It may be that in the beginning the complainant party was weeding the grass from the field No. Ill but when the appellant came and asked them not to do so, the complainant party went to the field No. 214 which was admittedly in the possession of the complainant party and the appellant was in the adjacent field belonging to Bherudan. Both the parties exchanged abuses to each other. From the prosecution evidence it is clearly established that the gun shot was fired by the accused on Mst. Roori when she was in the field No. 214 and her dead body lay in that field. This negatives all the plea of the appellant referred to above. There is no evidence that prior to the firing of the gun shot on Mst. Roori by the appellant there was some scuffle between the complainant party and the accused. The injuries received on the person of the accused have been very well explained by the prosecution witnesses that it was after the appellant had fired shot and caused the death of Mst. Roori and that while he was preparing for the shot Mst. Badami and Nanga ran towards the appellant and his companion and they clasped injuries on the person of the appellant There are also no circumstances to infer that the gun was fired by accident during scuffle which hit Mst. Roori resulting in her death. According to the appellant Nanga, Mst. Roori and Mst. Badami surrounded him and started to inflict injuries on him. Nanga wanted to snatch the gun and during the scuffle gun went of. This implies that Mst. Roori was quite close to range but Dr. Ramakant has stated the gun was fired from the distance of more than 5 feet which implies that it was not fired from a close range. No witness has stated that the gun had gone suddenly during the scuffle. Thus there is no evidence to support the appellant on this score also. On the other hand all the eye-witnesses have stated that Mst. Roori was about 10-15 paces away from the accused Cheldan when he had fired the gun. Thus the contention of the learned counsel of the appellant has no force. Thus there is no evidence to support the appellant on this score also. On the other hand all the eye-witnesses have stated that Mst. Roori was about 10-15 paces away from the accused Cheldan when he had fired the gun. Thus the contention of the learned counsel of the appellant has no force. The place taken by the accused appellant are therefore untenable. 10. However, the prosecution is not absolved of its primary duty to establish the guilt of the appellant beyond reasonable doubt. The prosecution must discharge the burden to establish the complicity of the accused and if the pleas taken by the accused are not established or even probabilised it does not centralise or shift the burden which lay on the prosecution. The prosecution has to establish its own case against the accused beyond reasonable doubt. In this regard the contention of the learned counsel for the appellant is that the prosecution has not come with clean hands. Firstly, it has changed the venue of occurrence and secondly the circumstances leading to the injuries on the person of the appellant have also been twisted. Both these points were also raised in connection with the plans taken by the appellant as above mentioned and they have been repelled. The case of the accused was that the occurrence took place in the field Khasra No. Ill while the prosecution has shifted the vanue to field Khasra No. 111 while the prosecution has shifted the venue to field Khasra No. 314. As pointed out above, nothing has been brought on record to infer that the occurrence took place in field No. 112 it took place in field No. 211 and Mst. Roori was shot dead in this field No. 214 belonging to the complainant party. All the prosecution witnesses have deposed to this effect. There is no evidence on behalf of the accused nor any thing has been elicited in this regard from prosecution witnesses. As regards the injuries inflicted on the person of the accused it has been contended that they have not been explained in the manner in which they were received. In the facts and circumstances of the case it cannot be said that the injuries on the person on the appellant have remained unexplained. Nanga P. W.2 , Badami PW. 14, Mala PW. 7 and Bhagawana PW. In the facts and circumstances of the case it cannot be said that the injuries on the person on the appellant have remained unexplained. Nanga P. W.2 , Badami PW. 14, Mala PW. 7 and Bhagawana PW. 13 have clearly deposed that after the accused Cheldan had fired the gun, Nanga inflicted lath blows on the person of the accused. It cannot be said that the prosecution has not come with true story. This contention of the learned counsel for the appellant that the prosecution has not come with true story was also taken before the learned trial Judge, but he has also replied the contention and held it untenable. It can not be said that the reasons given for the 'tart of the incident are strange. According to the prosecution evidence the accused asked the complainant party why they were weeding out the grass from his field and he hurled abuses to Nanga and Smt. Roori In exchange the complainant party also hurled abuses to the accused and Mst. Roori also called bad names to the accused. The accused-appellant thereupon fired the gun on Mst. Roori which hit her in the breast and she died instantaneusly. Thus the sequence of the incident cannot be said to be strange or unnatural.There is nothing to disbelieve the evidence of Nanga PW. 2 and Mst. Badami PW. 14 even though they may be near relations of the deceased as their presence at the time and place of occurrence is undisputed. Their statements also find support from the statements of Mala PW.7 and Bhagawana PW. 13 so far as the act of the accused-appellant is concerned. Mala and Bhagawana have however tried to avoid the presence of co-accused Shambhudan with which we are not concerned at this stage in this appeal. However, as these witnesses tried to avoid the presence of co-accused Shambhudan at the scene of occurrence, these witnesses were declared hostile but their evidence is reliable so far as it goes against the present appellant. It has clearly been established by the prosecution beyond reasonable doubt that the appellant Cheldan fired his gun Art. A. 1 with the intention of causing such bodily Injury, knowing that it was likely to cause death of Mst. It has clearly been established by the prosecution beyond reasonable doubt that the appellant Cheldan fired his gun Art. A. 1 with the intention of causing such bodily Injury, knowing that it was likely to cause death of Mst. Roori and that he had also the knowledge that his act of firing gun was imminently so dangerous that it must in all probabilities cause for death or such bodily injury which was likely to cause death. In these circumstances, the appellant has rightly convicted for the murder of Mst. Roori.There is no force in the appeal field by the appellant. It is hereby dismissed. The conviction and sentence as passed by the Additional Sessions Judge, Sikar are maintained. *******