JUDGMENT 1. - Accused Yusuf Khan was tried by the learned Additional Sessions Judge, Tonk, for committing the murder of Munna Beg and causing injuries to Ayub. Learned Judge found him guilty of offences punishable under section 302 I. P. C. He convicted and sentenced the accused to life imprisonment. He was also convicted under section 324 I. P. C. and sentenced to three years' rigorous imprisonment and a fine of Rs. 500/-, or in default of payment of fine to further undergo rigorous imprisonment for three months. 2. The brief facts giving rise to this appeal are that DW. 2 Mst. Fatma is Ayub Beg's married wife and Munna (deceased) was Ayub Beg's younger brother. During the course of wedlock Fatma gave birth to five children. Later on relation between Fatma and her husband Ayub Beg became strained. Ayub Beg was living at Ajmer while Fatma was living with her parents at Tonk. She developed illicit relations with Yusuf Khan. On 29.2.1976 Ayub Beg. Munna deceased and other relatives came to the house of Mohhamad Beg, to celebrate a birth day Ceremony of a grand child. It is alleged that in the morning Yusuf came to the house of Mohammad Beg and asked Ayub Beg to divorce his wife on which Munna got infuriated and in the tell-tale manner asked Yusuf as to who he was to give such an advice. Yusuf left the place and in the same evening when Munna deceased in the company of Ajij went towards the shop of Pathan for purchasing cigarette, Yusuf appeared at the scene. After verbal altercation they grappled with each other. Shahid Beg rushed to the house of Munna and informed his brother regarding the quarrel between Yusuf and Munns, on which Ayub Beg, Mohammad Sayed, Ajij Beg rushed to the scene of occurrence. Ayub Beg intervened but he was also not spared. Thereafter, the accused threw the knife and took to his heels. He was chased by Ajij, Ayub, and Mohammad Sayed and was caught within a short time and was produced before the police at the police station, kotwali, Tonk. First Information Report Ex. P/1 of this occurrence was lodged at 5 P.M. by Ayub Beg. The police after usual investigation submitted a challan against Yusuf under sections 302 and I. P. C. Ultimately he was tried by the learned Additional Sessions Judge, Tonk. 3. First Information Report Ex. P/1 of this occurrence was lodged at 5 P.M. by Ayub Beg. The police after usual investigation submitted a challan against Yusuf under sections 302 and I. P. C. Ultimately he was tried by the learned Additional Sessions Judge, Tonk. 3. The accused denied his guilt and prosecution examined 8 witnesses out of whom PW. 1 Ayub Beg, PW. 2 Mannu Shah, PW. 3 Bindu Khan, PW 4 Anish Beg and PW. 6 Wahid were examined as eye-witnesses of the occurrence. PW. 5 Dr. Beni Prasad performed the autopsy on the dead body of Munna. The same doctor clinically examined Ayub Beg. The injury report is Ex. P/13. Some injuries on the person of Yusuf accused were also noticed. The injury report is Ex. D. 1. The acc-I used denied his complicity in the crime. He however pleaded that the members of the complainant party were the aggressors. They inflicted lathi blows on his person and deceased Munna attempted to inflict a blow with a sharp edged weapon. The accused examined 4 witnesses in support of his case, out of whom DW. 2 Fatma is the wife of Ayub Beg and DW. 3 Ahmad Sayed and Mohd. Abid are eye-witnesses of the occurrence. 4. Learned Sessions Judge held the prosecution case to be reliable. He convicted and sentenced the accused as mentioned above. 5. From the perusal of the post-mortem report and the statement of Dr. Beni Prasad it stands conclusively proved that injury sustained by the deceased Munna was in the ordinary course of nature is sufficient to cause his death. 6. It is not necessary for us to consider the prosecution evidence in details and all the circumstances brought forth on record by the prosecution to establish the guilt against the accused as the learned counsel for the appellant has conceded that there are no sufficient grounds made out for challenging the fact that the accused had caused an injury with a knife to deceased Munna. However, we have looked into the relevant portion of evidence on record and are satisfied that the prosecution has established beyond reasonable doubt by over-whelming evidence that the incident did take place at the time and place alleged by the prosecution and that the accused had caused an injury with a knife on the neck of deceased Munna as a result of which he died. 7. 7. The only question canvassed before us on behalf of the appellant is that the trial court committed an error of law in convicting the accused under section 302 I. P. C. and according to the learned counsel at best the case against the accused can fall under section 304 Pait II I. P. C. To support of this contention he referred to the evidence of P. W. 2 Nannu Shah, who admitted that the accused and Munna deceased were seen by him grappling with each other and that Munna deceased had succeeded in felling the accused on the ground. Learned counsel for the appellant urged that the trial court wholly ignored the significance of the injuries found on the appellant. Yusuf had sustained 7 injuries. According to Dr. Beni Prasad the injuries Nos. 4, 5, 6, 7, and 8 mentioned in the injury report Ex. D. could be sustained by a fall but injuries Nos. 1, 2 and 3 could not be sustained by a fall. Thus all the three injuries definitely remained unexplained. Therefore, the version of the accused that he sustained injuries at the time of the occurrence is highly prohibited. He has been taking the plea of self-defence from the very beginning. None of the three injuries could be said to be self-inflicted. Under these circumstances we are unable to agree with the learned counsel for the State that the prosecution had no duty to offer any explanation as regards these injuries. In our judgment the failure of the prosecution to give any explanation in that regard shows that the evidence of the prosecution witness plating to the incident is not true or of any rate not wholly true. Further the injuries probabilise the plea taken by the appellant. 8. The second point raised by the learned counsel for the appellant is that the prosecution purposely withheld Mohammed Ajij and Sayed Beg, who were cited as eye-witnesses of the occurrence in the challan submitted by the police. Admittedly Ajij had left the house with Munna deceased and he was the person who could have unfolded the story as to how the occurrence took place. Admittedly Ajij had left the house with Munna deceased and he was the person who could have unfolded the story as to how the occurrence took place. It is well established that the witness essential to the unfolding the story on which the to section relies, must be examined, and non-examination of such a witness certainly raises a doubt that the evidence which could be and is not produced, would if produced be unfavourable to the prosecution who with held it. 9. The law regarding the right of private defence of property or person is well settled and may be briefly recapitulated here. The onus is on the accused to establish this right not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. He might or might not take this plea explicitly or might not adduce any evidence in support of it but he can succeed in his plea if he is able to bring out materials in the records of the case on the basis of the evidence of the prosecution witnesses or on other pieces of evidence to show that the apparently criminal act which he committed was justified in exercise of his right of private defence of property or person or both. But the exercise of this right is subject to the limitations and exceptions provided in S. 99 of the Penal Code the last one being "The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence". As to when the right of private defence of the body extends to causing death is provided for in section 100. The appellant's f case is not covered by it. In the view which we have expressed above we think that the appellant had a right of private defence of his person to a limited extend within the meaning of section 101 subject to the restrictions mentioned in Section 99. This did not extent to the inflicting of so much harm to Munna and causing his death. Undoubtedly the appellant did exceed the right of private defence and apparently the murder which he committed within the meaning of section 300 squarely fall within exception 2 thereof. This did not extent to the inflicting of so much harm to Munna and causing his death. Undoubtedly the appellant did exceed the right of private defence and apparently the murder which he committed within the meaning of section 300 squarely fall within exception 2 thereof. He expressed the power given to him by law and caused the death of Munna against whom he was exercising such rights of private defence. 10. The net result of the aforesaid discussion is that the appeal is partly allowed, and the conviction of the appellant under section 302 IPC is converted to that under section 304 Part 11. P. C. He is in jail since his arrest and in the facts and circumstances of the case, we are of opinion that the imprisonment already suffered by him would meet the ends of justice. His sentence is, therefore, reduced to that already undergone by him. His conviction and sentence under section 321 I. P. C. are set aside. The appellant is in jail. He shall be released forth with if not required to be detained in connection with any other case.Appeal partly allowed. *******