JUDGMENT 1. - The learned Addl. Sessions Judge, by his Judgment dated 30.10.1972 has convicted the appellant Kan Singh for the offence under Sec. 302 I.P.C. and the appellant Mst. Chhagan Kanwar for the offence under Sec, 302 r.w. Sec. 34 I.P.C. and sentenced each of them to imprisonment for life for committing the murder of Phool Singh resident of Bhudoli, Police Station Neem-ka-thana. 2. The prosecution case as revealed during the investigation and trial, in brief, that there is a Haveli known as Baba-ji-ki-Kothri wherein deceased Prabhu Singh, accused Ran Singh along with his wife Mst. Chhagan Kanwar, Nathu Singh PW.7, Amar Singh PW. 6 used to reside. The inquest report Ex. P/2 was prepared by Sub-Inspector Zaber Singh. Shirt and Banyan Ex.A.l and Ex. A 2 respectively and Dhoti Ex. A.3 were taken off the dead body of Prabhu Singh vide seizure meme Ex P/3. Autopsy on the dead body of Prabhu Singh was performed by Dr. Raghubir Singh PW. 11. The following external injuries were found on the dead body of Prabhu Singh:- 1. Incised wound 31/2" x l" cutting through bone right temporal region (in front of ear) . 2. Incised wound 4" x 1" cutting through bone right temporal parietal region; 3. Incised wound 21/2 " X 1/2 " cutting through bone on scalp and behind ear on the right side. 3. Post-mortem report is Ex. P/5. In the opinion of the doctor the cause of death was shock due to bleeding and destruction of brain material caused by aforementioned multiple injuries on the skull. The site was also inspected and the site memo Ex. P. 6 was prepared. The blood-stained soil beneath the cot (on which deceased was sleeping at the time of the alleged occurrence) were also taken into custody by the Investigating Officer. The appellants were arrested from their room situated in the same Haveli. Appellant Kan Singh voluntarily gave information Ex.P. 9. while in police custody, regarding concealment of the alleged weapon of offence and at his instance and information axe Ex. A. 5 were recovered from his room and the recovery memo Ex. P/10 was prepared. The axe was sealed. The axe Ex. A. 5 blood-stained Gudari Ex. A. 4, Chadar Ex. A. 6, shirt, dhoti and banyan of the deceased Ex. A. 1 to Ex. A. 5 were recovered from his room and the recovery memo Ex. P/10 was prepared. The axe was sealed. The axe Ex. A. 5 blood-stained Gudari Ex. A. 4, Chadar Ex. A. 6, shirt, dhoti and banyan of the deceased Ex. A. 1 to Ex. A. 3 respectively and the blood smeared soil were sent to the Chemical Examiner, Rajasthan Jaipur, who received the same intact and sealed. The Chemical Examiner and the Serologist vide their reports Ex. P/14 and Ex. P/15 respectively opined that all the aforementioned articles were positive for human blood. After completion of the necessary investigation, the appellants were challaned in the court of the Addl. Munsiff Magistrate, Neem-ka-thana, who after conducting the preliminary inquiry under section 207-A Cr. P. C. 1898 committed them for trialto the court of the Additional Sessions Judge, Sikar. The Addl. Sessions Judge, Sikar, after trial, convicted, and sentenced the appellants as mentioned above. Hence this appeal. 4. In support of its case the prosecution examined as many as 11 witnesses. The accused-appellants in their statements under Section 342 Cr. P. C. 1898, denied their complicity in the crime. They also denied the alleged scuffle in the evening of 28.7.71. It was stated by them that in the intervening night of 28th and 29th July, 1971 Prabhu Singh at about mid night, came to their room having drunk, Prabhu Singh put his hand on the breasts of Chhagan Kanwar to molest her. On hearing alarm Kan Singh got up. Prabhu Singh inflicted a lathi blow on his back Axe Ex. A. 5 came in the grip of Kan Singh and in order to save the honour of his wife he inflicted axe blow to Prabhu Singh. Thereafter, he did not know on what part of Prabhu Singh's body the axe hit. Man Singh DW. 1 came thereafter who made him sleep in his room and took away Prabhu Singh outside. He has however admitted that Amar Singh PW. 6 was sleeping in the court-yard of the Haveli while PW. 7 Nathu Singh was sleeping on the roof. Ex. A. 5 also belongs to him but denied having furnished any information to the police leading to its recovery, though he has admitted that the police has recovered the same from his room. Man Singh PW. 1 was examined in defence. 5. 7 Nathu Singh was sleeping on the roof. Ex. A. 5 also belongs to him but denied having furnished any information to the police leading to its recovery, though he has admitted that the police has recovered the same from his room. Man Singh PW. 1 was examined in defence. 5. Learned Amicus Curiae has not disputed the fact that the death of Prabhu Singh was due to violence and it was a homicidal death. He has contended that Mst. Chhagan Kanwar has been falsely implicated and the role assigned to her in the occurrence is false. As the Kothas of the parties and PW. 7 Nathu Singh and PW. 6 Amar Singh are within the same Haveli, and the appellants are residing in one of the Kothris of the same Haveli, presence of Mst. Chhagan Kanwar is natural. The part assigned to her in the occurrence is totally false. As regards Kan Singh, his contention is that he inflicted axe blows to Prabhu Singh, in his right of private defence of person and due to grave and sudden provocation. Thus according to the learned Amicus Curiae the appellants are entitled to acquittal. 6. We first take up the case of appellant Mst. Chhagan Kanwar. She is the wife of another appellant Kan Singh. She has been convicted for the offence under Sec. 302 with the aid of Sec. 34 T. P. C. She did not inflict any injury on the person of Prabhu Singh. She had also no weapon of offence with her at the time of incident. The part assigned to her in the commission of offence is that at the time of the alleged occurrence she was also present near the cot of the deceased when Kan Singh inflicted the blows on the person of Prabhu Singh and that she caught hold of the legs of the deceased while Kan Singh inflicted the injuries. She has also been assigned the act of exhorting her husband to finish the deceased. Mst. Pan Kanwar PW. 4 the widow of the deceased is the only witness to depose about the exhortation. No other witness is there to corroborate it. As would be pointed out presently, it can be said that there is a tendency on the part of Mst. Pan Kanwar and Nathu Singh to make certain improvements in their statements before the court in order to involve Mst. No other witness is there to corroborate it. As would be pointed out presently, it can be said that there is a tendency on the part of Mst. Pan Kanwar and Nathu Singh to make certain improvements in their statements before the court in order to involve Mst. Chhagan Kanwar in the crime. Mst. Pan Kanwar in her statement under Sec. 161 Cr. P. C. Ex. D 1 did not depose that at the time of occurrence Mst. Chhagan Kanwar was catching hold of the legs of the deceased. Such a fact was also not stated in the police statement under section 161 Cr. P. C. Ex. D. 3 by Nathu Singh P. W. 7 while there witnesses tried to improve their version before the trial court by specifying the role of catching hold of the feet or pressing the body of the deceased by the appellant Mst. Chhagan Kanwar. The learned Addl. Sessions Judge also was of the view that there was certainly improvement and embellishment on this score in the statements of these prosecution witnesses but in his eye they were not material. If the appellant Mst. Chhagan Kanwar is held guilty for the murder with the aid of Sec. 34 IPC then it was necessary for the prosecution to prove her participation in the crime in order to prove the case against her. Looked from that angle, this improvement on the part of the prosecution witnesses is very material because by improving their version and assigning the specific role of catching the legs of the deceased by Mst. Chhagan Kanwar was an act of participation in the crime and way with the aid of Sec. 34 IPC. We, therefore, consider material in order to fasten the guilt of murder that the omission of her specific role in the statement of prosecution eye-witnesses under Sec. 161 Cr. P. C. is very material improvement by these witnesses upon their earlier version and this creates serious suspicion about the involvement of Mst. Chhagan Kanwar in the crime. Keeping in view the conduct on the part of Mst. Pan Kanwar of making improvement in her earlier statement, the tact with regard to exhortation assigned to Mst. Chhagan Kanwar to done away with the deceased also becomes of doubtful veracity. From the judgment of the trial court it seems that the learned Addl. Sessions Judge was lead away against Mst. Pan Kanwar of making improvement in her earlier statement, the tact with regard to exhortation assigned to Mst. Chhagan Kanwar to done away with the deceased also becomes of doubtful veracity. From the judgment of the trial court it seems that the learned Addl. Sessions Judge was lead away against Mst. Chhagan Kanwar by the fact of her mere presence at the place of occurrence. At one place, he has remarked : "All- these three eye witnesses have, in their statements given to the police narrated that accused Chhagan Kanwar was present at the time of alleged occurrence along with accused Kan Singh". At page 86 of the Paper Book at other place of the judgment the learned Addl. Sessions Judge has observed:- "At the most this fact can be disbelieved that accused Chhagan Kanwar had caught hold of the legs of Prabhu Singh at the time of alleged occurrence. But her presence at the place and time of the alleged occurrence cannot be ruled out". It is an undisputed fact that the Kothas of the parties, of Amar Singh and of Nathu Singh are within the same Haveli and are situated at a distance of a few feet. There is hardly significant distance between the room of Kan Singh and the place where the deceased was sleeping on the cot. The circumstance when such an incident had taken place that Kan Singh inflicted injuries on the deceased Prabhu Singh, the presence of Mst. Chhagan Kanwar, who is also residing in the Kotha along with her husband, Kan Singh, is innocuous circumstance and it cannoi be taken as an incriminating one. As pointed out above Mst. Pan Kanwar and Nathu Singh had tried to improve their versions in assigning the role of catching hold of the legs of the deceased by Mst. Chhagan Kanwar while Kan Singh was inflicting axe blows on the deceased. The mere presence of Mst. Chhagan Kanwar at the place and time of occurrence in the facts and circumstances of the case, is innocuous. The First Information Report was lodged by Nathu Singh PW. 7 and therein also no such specific part has been assigned to Mst. Chhagan Kanwar. Thus this fact also does not find any corroboration from the First Information Report Under the circumstances, the participation of Mst. The First Information Report was lodged by Nathu Singh PW. 7 and therein also no such specific part has been assigned to Mst. Chhagan Kanwar. Thus this fact also does not find any corroboration from the First Information Report Under the circumstances, the participation of Mst. Chhagan Kanwar and her common intention alongwith Kan Singh in the murder of Prabhu Singh become highly doubtful. She is therefore, entitled to the benefit of boubt. 7. We now take the case of appellant Kan Singh. The contention of the learned Amicus Curiae appearing for the appellant is that the appellant had inflicted the axe blow on Prabhu Singh in the right of private defence of person and due to grave and sudden provocation and as such he is not guilty of the offence. It may be said that when an accused pleads that his case is covered by any exception, it is for the accused to prove the existence of the facts bringing his case in the exception. It may however, be said that this burden is not so heavily placed on the accused as it 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 a reasonable probability, that his story might be true. There are two important factors in every criminal trial which weigh heavily in favour of the accused person. Firstly, the accused is entitled to the benefit of every reasonable doubt, and from this it follows that when the accused offers an explanation of his conduct which is reasonable, then even though he cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they are false. The burden which rests on the prosecution to establish its case beyond reasonable doubt is neither neutralised nor shifted because the accused pleads any conception 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 whether the accused and until it does so, the question whether the accused has acted in self defence-or not does not arise. The defence version is that the appellants Kan Singh and Mst. The prosecution must discharge its initial traditional burden to establish the complicity of the accused and until it does so, the question whether the accused and until it does so, the question whether the accused has acted in self defence-or not does not arise. The defence version is that the appellants Kan Singh and Mst. Chhagan Kanwar were sleeping in their Kotha in the same Haveli in which the deceased also resided along with his wife Mst. Pan Kanwar PW. 4 in their another Kotha. It is pleaded that at about mid-night the deceased entered the Kotha wherein the appellant were sleeping, and put his hands on the breasts of appellant Mst. Chhagan Kanwar. She raised an alarm, Kan Singh, who was sleeping nearby got up. The deceased inflicted two lathi blows on Kan Singh, thereafter, Kan Singh picked up the axe and inflicted blows on the person of the deceased. It is further pleaded that Man Singh DW. 1 who was sleeping in the Nohra out side the Haveli, came there and he asked Man Singh to sleep and Kan Singh went to sleep, while he took the deceased out of room. Thus, the defence story is that the deceased attempted to molest the modesty of the appellant Smt. Chhagan Kanwar and in order to protect her person Kan Singh inflicted axe blows on the person of the deceased. It was further pleaded that the act of the deceased was such as gave rise to grave and sudden provocation. 8. This contention was also raised before the learned trial court but the learned Addl. Sessions Judge, after carefully analysing the circumstances brought on record, held this plea of the appellants as untenable. We have also considered the prosecution evidence as well as the defence evidence of the accused-appellants including the statement of Man Singh DW. 1. According to the version of the appellants the alleged occurrence took place in the Kotha wherein the appellants were sleeping but this fact is not born out by the record. Had this occurrence taken place in the Kotha and the deceased received injuries there by the axe on his temple, the blood must have been available on the floor of that Kotha. There is no such evidence that any blood stained earth was recovered in that Kotha. Nothing was pointed out in this respect to the Investigating Officer. Had this occurrence taken place in the Kotha and the deceased received injuries there by the axe on his temple, the blood must have been available on the floor of that Kotha. There is no such evidence that any blood stained earth was recovered in that Kotha. Nothing was pointed out in this respect to the Investigating Officer. On the other hand the blood stained earth was found below the cot of the deceased and it was so taken from that place by the Investigating Officer. The prosecution witnesses Pan Kanwar, Amar Singh, Nathu Singh, Dy. S. P. Kanwar Sen PW. 8, Zabar Singh S. 1. PW. 10, and Gokul Singh have categorically stated that they noticed the blood only beneath the cot of the deceased in the court-yard and nowhere else. Moreover, the conduct of the accused also does not probabilism the circumstances alleged by the defence. When DW. 1 Man Singh arrived at the scene no such complaint was made to him. Had this been a fact that the deceased wanted to molest Mst. Chhagan Kanwar who was much older in age than the deceased, the appellant must have; brought this fact to the notice of Man Singh DW. 1 immediately when he arrived at the scene. Not bringing any such fact to the notice of Man Singh at that earlier moment seems contrary to the human conduct particularly when a very serious and grave occurrence leading to the death of the deceased had taken place. Moreover, no such plea was taken by the appellants in their statements before the committing Magistrate. It was only in the trial court that such a plea was taken. It may however be said that not taking such a plea at the earlier stage does not stop the accused to take any such plea at the subsequent stage but its credibility and veracity has to be judged in the facts and circumstances of each case. This plea taken by the appellant seems to be an after thought. The defence witness Man Singh has been produced by the appellants in support of their version. His evidence has been discussed in detail by the learned trial Judge and be has disbelieved his version and rightly so. The age of Mst. Chhagan Kanwar is about 40-50 years. Man Singh DW. The defence witness Man Singh has been produced by the appellants in support of their version. His evidence has been discussed in detail by the learned trial Judge and be has disbelieved his version and rightly so. The age of Mst. Chhagan Kanwar is about 40-50 years. Man Singh DW. It has further stated that he neither narrated the incident to the police nor to any other officer of the court. It cannot also be said that the alleged injuries on the person of Kan Singh were received during the scuffle. Thus the appellants have failed to establish rather even probabilism their version that the appellant Kan Singh had a right of private defence of person and he inflicted injuries to Prabhu Singh under that right and under the impulse of grave and sudden provocation. 9. However, as pointed out above the prosecution is not absolved of ill duty to establish the guilt of the appellant beyond reasonable doubt. The prosecution must discharge its burden to establish the complicity of the accused and if any plea taken by the accused is not established or probabilised it does not neutralise or shift the burden which lay on the prosecution. In this connection the contention of the learned Amicus Curiae is that Mst. Sohan Kanwar who was one of the witnesses present at the time and place of occurrence has not been produced, and the prosecution has failed to examine the material witness and a presumption against the prosecution for withholding such a material witness be drawn. This argument was also advanced before the learned trial Judge and he held it untenable and in our opinion rightly so. Firstly it is not necessary that all the eye-witnesses of occurrence need be examined. The prosecution has examined as many as three eye-witnesses and also Gokul Singh and such others who immediately reached the scene of occurrence. Moreover, on the facts which have come on record the examination of Sohan Kanwar would not have helped either of the parties as she is an old lady of about 70 years of age and suffers from lack of clear eye-sight, and she is also hard of hearing. This physical condition and disability of Mst. Sohan Kanwar has come on record in the statements of the prosecution witnesses. Under the circumstances non-examination of Mst. Sohan Kanwar does not throw any doubt on the prosecution case. This physical condition and disability of Mst. Sohan Kanwar has come on record in the statements of the prosecution witnesses. Under the circumstances non-examination of Mst. Sohan Kanwar does not throw any doubt on the prosecution case. In order to establish the guilt of the appellant Kan Singh the prosecution has examined as many as 11 witnesses. Smt. Pan Kanwar PW. 4, Amar Singh PW. 6 and Nathu Singh PW. 7 are the eye-witnesses. Their testimony has been carefully examined and analysed by the trial Judge and he has come to the conclusion, and rightly so, that from their testimony it has been proved beyond reasonable doubt that Kan Singh inflicted fatal injuries by an axe on the person of Prabhu Singh. Their version is further corroborated by the medical evidence of Dr. Raghubir Singh P. W. 11. Besides the direct and circumstantial evidence as pointed out above there is another circumstance against the appellant Kan Singh that he bore enmity with the deceased and that in the evening of 28-7-71 there had been some verbal alteration between the deceased and the appellant Kan Singh in which Nathu Singh and Amar Singh intervened. Moreover, the axe Art. 5 which has been owned by the appellant as his, was found to be positive for human blood and this axe was recovered from the residential Kotha of the appellant on his information and at his instance while he was in police custody. From all these circumstances it is very well established beyond any reasonable doubt that it was the appellant Kan Singh, who caused the murder of Prabhu Singh by inflicting injuries by an axe on the vital parts of the deceased. In the opinion of the Medical Officer Dr. Raghubir Singh PW. 11 who performed the autopsy on the dead body of the deceased that all the three injuries found on the person of the deceased, individually as well as cumulatively, were sufficient to cause the death of Prabhu Singh in the ordinary course of nature. These injuries could be caused by the axe Art 5. The cause of death of Prabhu Singh was shock due to bleeding and construction of brain material caused by the multiple injuries of the skull. Thus both from direct as well as circumstantial evidence the complicity of the appellant Kan Singh in the crime has been well established beyond reasonable doubt. The cause of death of Prabhu Singh was shock due to bleeding and construction of brain material caused by the multiple injuries of the skull. Thus both from direct as well as circumstantial evidence the complicity of the appellant Kan Singh in the crime has been well established beyond reasonable doubt. He has, therefore been rightly convicted for the offence finder sec. 302 I. P. C. His appeal, therefore has no force. 10. In the result the appeal preferred by Mst. Chhagan Kanwar is allowed. Her conviction and sentence under sec. 302 r/w 34 IPC are set aside. She is acquitted. She is in jail, she be released forthwith if not required in any other case. So far as the appeal preferred by appellant Kan Singh is concerned it fails and is dismissed. His conviction and sentence under sec. 302 IPC. as passed by the learned Addl. Sessions Judge, Sikar are maintained.Appeal allowed. *******