JUDGMENT 1. - Appellant Kakasingh was tried for the offences under section 302 Indian Penal Code and sections 25 and 27 of the Arms Act by the learned Sessions Judge, Sri Ganganagar. By his judgment dated 13.8.74 learned .Sessions Judge convicted the appellant for the aforesaid offences and sentenced him to imprisonment for life on the first count, three years rigorous imprisonment on the second count and five years rigorous imprisonment on the third count with an order that all the sentences shall run concurrently. 2. Briefly stated the facts of the case leading to the trial of the appellant were as under : 3. Sohanlal co-accused (accused by the learned Sessions Judge) had enmity with deceased Jagtarsingh. On 24.5.73 Sohanlal gave some money to Kakasingh and supplied him a pistol and cartridges to commit the murder of Jagtarsingi Appellant Kakasingh is said to be not on good terms with his father Gyansingh, Jagtarsingh was alleged to have sided Gyansingh in that quarrel and therefore Kakasingh was inimical to Jagtarsingh. On 25.5.73 appellant Kakasingh left his village-Burjwala in a bus going to Karanpur. Jagtarsingh also was travelling in that bus. Mst. Banso (P.W.2) sister of Kakasingh, their mother Mst. Pale also boarded that bus from a place near the bridge at some distance from the village. The bus reached Karanpur in 15 or 20 minutes at about 9.00 a.m. The bus stopped near Gandhi Park in Mandi Karanpur. Jagtarsingh alighted from the bus and was dusting off his clothes. Kakasingh appellant also alighted from the bus and fired a shot towards Jagtarsingh which hit him on the chest and caused a number of injuries on his person. Appellant then reloaded the pistol and again fired it but the shot missed the fire. On account of sustaining gun shot-injuries Jagtarsingh fell down. Hanumanaram Constable (P.W.5) who was also travelling in the same bus and had also alighted there immediately caught hold of the appellant and snatched the pistol from his hand. Jeetsingh (P.W. 12) driver of the bus while getting down from the door of the bus towards the driver side heard the report of the gun fire and then on going towards the other side of the bus saw Jagtarsingh in an injured condition. He, therefore, rushed to the Police Station, Karanpur and lodged a report which was recorded in the daily diary by Jagmalaram Sub-Inspector (P. W. 14). He, therefore, rushed to the Police Station, Karanpur and lodged a report which was recorded in the daily diary by Jagmalaram Sub-Inspector (P. W. 14). Gurbachansingh (P.W.l) brother of deceased Jagtarsingh and Gurpalsingh (P.W.3) were there at the bus stand awaiting for Jagtarsingh. Gurbachansingh with the help of others lifted the body of Jagtarsingh and took him to the hospital in a trolly where he breathed his last. Jagmalaram, Station House Officer went to the hospital along with the Magistrate for getting the dying declaration recorded in case Jagtarsingh was still alive, but Jagtarsingh had already succumbed to the injuries sustained by him. Jagmalaram, Station House Officer recorded the statement of Gurbachansingh (Ex. P. 3) and sent it to the Police Station for registering the case. While on his way back to the Police Station, Hoshamsingh gave him the copy of the First Information Report (Ex.P.8) scribed by Head Constable Ram Karan (P.W. 6). 4. When Hanumanaram, Constable produced Kakasingh appellant at the Police Station, Jagmalram arrested him vide memo Ex. P. 14. On search three cartridges and thirty five paisa were recovered from the pocket of the appellant which the Station House Officer took in possession. Hanumanaram, Constable produced pistol Ex. P. 14 which he had snatched from the appellant. On opening the pistol one missed cartridge was found in it. The pistol and that missed cartridge were taken in possession vide memo Ex. P. 15. 5. Station House Officer then went to the site and prepared a site plan Ex. P. 9, and site inspection Memo Ex. P. 9A. He took in possession the blood soaked earth vide memo Ex. P. 12. One empty cartridge was found at the site which was taken in possession vide memo Ex P. 7 One blood stained Jute bag recovered at the site was also taken in possession vide Ex P 8. One bag containing a turban and lying near the shop of Rajaram taken in possession vide memo Ex.P.5. Clothes of Gurbachansingh were stained with blood when he had lifted his brother Jagtarsingh. He produced those clothes which were taken in possession vide memo Ex.P 6. The Station House Officer again went to the hospital and prepared an inquest memo Ex.P. 13, and Panchayatnama on the dead body Ex. P. 14. The blood stained clothes, wrist-watch, Pen etc. of Jagtarsingh were taken in possession vide memo Ex. P 10. He produced those clothes which were taken in possession vide memo Ex.P 6. The Station House Officer again went to the hospital and prepared an inquest memo Ex.P. 13, and Panchayatnama on the dead body Ex. P. 14. The blood stained clothes, wrist-watch, Pen etc. of Jagtarsingh were taken in possession vide memo Ex. P 10. The blood stained shirt produced by Mst. Pale and blood stained Salwar produced by Mst. Banso were taken in possession vide memo Ex. P. 23. A bag containing turban and two bed-sheets was produced by Mst. Pale which the Station House Officer took in possession vide memo Ex. P. 24. 6. Dr. Chandardas Sharma, Tncharge, Primary Health Centre, Sri Karanpur conducted autopsy on the dead body of Jagtarsingh on 25.5.73 at 2.00 P. M. The Doctor noted following external injuries on the dead body : 1. Punctured wound left side of chest l/4"xl/4"x7" direction bring posteriorly and down wards 6" from left sterno joint horizontally placed. 2. Lacerated wound 1/4"x 1/4"x 1/2" on the left shoulder 3" lacteral to injury No. 1. 3. Lacerated wound 1/4" x 1/4" x 1" left arm front 3" from injury No. 2. 4. Lacerated wound left axilla 1/4" x 1/4" x 1/2" - 31/2" below injury 1 No. 1. 5. Punctured wound 1/4" x 1/4" x 6" front of chest 2. 1/2" below injury No. 4. Direction of the wound being downwards backward and medially. 6. Punctured wound 1/4" x 1/4" x 5. 1/2" front of chest 1/2" menial to injury No. 5 direction of the wound being downwards backward and medially. 7. Lacerated wound 1" x 1/4" x 1/4" in the left axila 3. 1/2" from injury No. 5 and 3" from injury no. 4. 8. Lacerated wound 1/4" x 1/4" x 1/2" front of chest 3. 1/2" below iniury No.7. 9. Punctured wound 1/4" x 1/4" x 6. 1/2" front of chest 3. 1/2" medial to injury No. 8 direction of the wound being medially, backwards & down wards. 10. Lacerated wound front of chest 1/4" x 1/4" x 1/2" below injury No. 9. 11. Lacerated wound 1/4" x 1/4" x 1/4" front of chest 2. 1/2" from injury No. 10 and below. 12. Lacerated wound 1/4" x 1/4" x 1/2" left nipple 3. 1/2" from injury No. 1 13. Abrasion 1/4" x 1/4" on the front of chest 1/2" from injury No. 5. 11. Lacerated wound 1/4" x 1/4" x 1/4" front of chest 2. 1/2" from injury No. 10 and below. 12. Lacerated wound 1/4" x 1/4" x 1/2" left nipple 3. 1/2" from injury No. 1 13. Abrasion 1/4" x 1/4" on the front of chest 1/2" from injury No. 5. 14 Abrasion 1" x 1/2" front of chest 1/2" from injury No. 13. 7. On internal examination the doctor found the left pleural cavity full of blood with left lung punctured and lacerated at four places corresponding to injuries No. 1,5, 6 & 9. Pericardium was full of blood. Left verticle perforated on left laternal side. 8. In the opinion of the Doctor cause of death was shock and haemmorahage due to injury on vital organs i.e. heart and left lung because of Gun shot. All the wounds of the Gun shot were letter with gun powder. 9. The Doctor recovered two small pellets of the sizes of the pea from the wounds and sealed them and sent the packet to the police for further investigation. According to Doctor, all the injuries of Jagtarsingh were sufficient in the ordinary course of nature to cause death. The postmortem examination report prepared by the Doctor is Ex P. 2. The pistol and the empty cartridges were sent to the Ballistic expert in sealed packets. The report received from the Forensic Science Laboratory is Ex P. 3. According to the report of the expert the 12 Bore country made pistol was a fire arm and the missed cartridge had been miss-fired from the pistol. The 121 Bore fire cartridge case had been fired from that pistol. 10. The accused had no licence for the pistol hence sanction from the District Magistrate, Sri Ganganagar was obtained to prosecute him under the Arms Act. The sanction is Ex. P. 25. After completing the necessary investigation, charge-sheet against the appellant and co-accused Sohanlal was fired in the court of Munsif Magistrate, Sri-Karanpur. The learned Magistrate committed the appellant and co-accused Sohanlal to the Court of Sessions to stand their trial for the offences under sections 302, 302/109 Indian Penal Code and Sections 25 and 27 of the Arms Act. The learned Sessions Judge charge-sheeted the two accused for the aforesaid offences and recorded their plea. Both of them denied the charges and claimed to be tried. The learned Sessions Judge charge-sheeted the two accused for the aforesaid offences and recorded their plea. Both of them denied the charges and claimed to be tried. In order to substantiate its case, prosecution examined fifteen witnesses in all. 11. Sohanlal denied the allegations. Appellant Kakasingh denied the allegations levelled against him and stated that he had alighted from the bus on that day following Jagtarsingh and Mst. Banso. Jagtarsingh tried to take away his sister Mst. Banso. The appellant resisted and Jagtarsingh abused him and threatened that he would see the latter and then put his hand in his bag. On this the appellant got enraged and in anger fired the shot apprehending risk to his life at the hands of Jagtarsingh who was a scoundrel & who always used to keep a pistol with him. The appellant fired the second shot in the air to make good his escape. No defence witness was examined in support of the above plea. The learned Sessions Judge did not held the prosecution case proved against Sohanlal and therefore acquitted him of The charge levelled against him. The prosecution witnesses were believed so far as they implicated the appellant in the commission of the crime. In view of his finding the learned Sessions Judge recorded the judgment of conviction against the appellant. 12. Being dissatisfied with his conviction and sentence the appellant has preferred this appeal. 13. We heard Mr. M.L. Garg, learned counsel for the appellant and Mr. Rajesh Balia, learned public prosecutor for the State and gave our anxious consideration to the materials on record. 14. In view of ample evidence against the appellant that on 25.5.73 he fired the pistol at Jagtarsingh which caused injuries to the latter resulting in his death, the learned counsel for the appellant did not advance any argument to assail the findings of the learned Sessions Judge that Jagtar Singh had died on account of the gun shot injuries sustained by him from the pistol shot fired by the appellant. The finding of guilt of the appellant has however been assailed by the learned counsel on the ground that the learned Sessions Judge went wrong in arriving at a conclusion that the defence taken by the appellant could net be substantiated by him. It has been strenuously 'argued by Mr. Garg'that there are speaking circumstances in the case to prove that Mst. It has been strenuously 'argued by Mr. Garg'that there are speaking circumstances in the case to prove that Mst. Banso, sister of the appellant had travelled from the same bus by which the assailant and the victim.had travelled and when she was being forcibly taken by the , deceased the appellant restrained him from doing so. Thereupon Jagtarsingh threatened the appellant and attempted to kill him and so in exercise of the right of private defence the appellant fired a shot on grave and sudden provocation caused by the deceased. It has been vehemently urged by the learned counsel for the appellant that prosecution has intentionally suppressed two important factors viz. Jagtarsingh attempting to take Mst. Banso with him and there being a pistol in his bag. It has been stressed that prosecution has failed to examine Bhagge near whose shop Gurbachansingh and Gurpalsingh Were said to have reached after the bus stopped at the Bus-stand. Non examination of Mst. Pale mother of the appellant has also been taken as a ground by Mr. Garg for discarding the prosecution case or in the alternative for her examination at the appellate stage for arriving at a just conclusion. 15. It has been contended by the learned counsel, for the appellant that prosecution has not come with clean hands and the perusal of the site plan in the light of the statements of the witnesses indicates must not have taken place in the way as stated by witnesses and therefore, it should be inferred that the defence version was true and prosecution has intentionally tried to suppress the real story in order to fasten the guilt on the appellant. 16. Controverting these arguments the learned Public Prosecutor submitted that the defence taken by the appellant is not at all believable because there is not an iota of evidence to suggest that there was any occasion for the exercise of the right of private defence or person. 17. It has been contended by Mr. Balia that Mst. Pale would not have stated any thing more then what her daughter or other eye witnesses have deposed and therefore no useful purpose would be served by examining her at this stage. 18. 17. It has been contended by Mr. Balia that Mst. Pale would not have stated any thing more then what her daughter or other eye witnesses have deposed and therefore no useful purpose would be served by examining her at this stage. 18. The prosecution case regarding the appellant firing a shot towards Jagtarsingh and the latter receiving injuries on account of it and succumbing to then has been fully proved by a number of witnesses whose evidence could not be challenged & found fault with. The appellant also admitted to have fired the shot from his pistol at the deceased but according to his plea he did so under grave and suddet provocation and in exercise of his right of private defence. The subject matter of this appeal therefore, falls into a narrow compass. All that has to be considered is whether the defence taken by the appellant is worthy of credence. The most important witness in the case who could have substantiated the plea taken by the appellant is hit sister Mst. Banso. Relevant it is to note that she has not at all supported the plea of the appellant. She has denied any hot altercation taking place between Kakasingh and Jagtarsingh at the time or before occurrence. She further denied the suggestions that Jagtarsingh caught hold of her aim while alighting from the bus and was trying to take her with him when Kakasingh being enraged fired a shot at him. According to her, she was at a distance of one and a half or two feet from Jagtarsingh at the time he sustained gun shot injury. The argument advanced by Mr. Garg is that Mst Banso might have illicit relations with Jagtarsing and therefore being under til influence of Gurbachansingh she might not have told the truth is not at all appealing The reason is that she has denied the suggestion of her having illicit intimacy with Jagtarsingh. According to her, she was not even visiting the house of Jagtarsingh, No question in this behalf has been put to Gurbachansingh. There is no material on record to suggest that Mst. Banso was in any way under the influence of Gurbachansingh so as to falsely plicate her own brother. The argument advanced on behalf of the defence that the appellant was on inimical terms with his father and therefore Mst. There is no material on record to suggest that Mst. Banso was in any way under the influence of Gurbachansingh so as to falsely plicate her own brother. The argument advanced on behalf of the defence that the appellant was on inimical terms with his father and therefore Mst. Banso might not have told the truth in favour of her brother is also devoid of force for the reason that Mst. Banso clearly stated that appellant and his father had entered into a compromise only a few days prior to the incident, There is no suggestion to her that she was at any time inimical to her brother the appellant. In this view of the matter we are not inclined to agree with the learned counsel for the appellant that Mst. Banso has suppressed the fact of her being taken by the deceased which caused annoyance to the appellant. It is pertinent to note than it has not at all been suggested to any of the eye witnesses that, Jagtarsingh had caught hold of Mst. Banso at the time while she was alighting from the bus and oil that score there was hot altercation between the assailant and the deceased Mr. Gar has drawn our attention to the statement of Jeetsingh, Driver of the bus in this connection. The driver has stated that while he was driving the bus Jagtarsingh, Kakasingh and the ladies were talking. According to Mr. Garg from this it can be presumed that while in the bus there might be some talk about Mst. Banso and Jagtarj singh and that might be the origin of the quarrel. The argument is not worth consideration because Jeetsingh has no where stated that the talks gave any hint about at, quarrel or discussion between the appellant and the deceased nor has he stated that a the time of alighting from the bus there was any event which could enrage the appellant. Jeetsingh further stated that he got down from the bus from the driver's door and the report of the gun fire was heard by him from the other side of the bus. Thu the statement of Jeetsingh is of no help to the defence. 19. While admitting that there is direct evidence support the defence venial Mr. Jeetsingh further stated that he got down from the bus from the driver's door and the report of the gun fire was heard by him from the other side of the bus. Thu the statement of Jeetsingh is of no help to the defence. 19. While admitting that there is direct evidence support the defence venial Mr. Garg substantiated his arguments by submitting that prosecution has not only with clean hands and important factors that might have helped the defence M been deliberately suppressed. 20. According to Mr. Garg,the fact that Mst. Banso was travelling in the same bus in which Jagtarsingh was travelling without there being any specific work for her at Karanpur given rise to the natural inference that she was intending to go with Jagtarsingh and therefore, the appellant being her brother and unable to tolerate such an act of his married sister would have surely felt annoyed and on being abused and threatened by Jagtarsingh must have fired the shot at the deceased under grave and sudden provocation and in avoiding the grave and imminent risk to the life of himself. It has been next contended that according to Gurbachansingh his brother Jagtarsingh had a bag with him which he pressed on his chest on receiving the gun shot injuries. The witness took it away from him and gave it to Mst. Banso. Mst. Banso has stated that she and her mother Mst. Pale gave it to the police. The Station House Officer, Jagmalram has proved ti e memo of the recovery of the bag Ex. P.24. It has been suggested to Gurbachansingh and Mst. Banso that there was a pistol in that bag which has been taken away before handing over the bag to the police. Both of them have denied this suggestion. In the absence of any evidence the above contention of learned counsel cannot be accepted merely on the basis of conjectures. 21. Mst. Banso being in the same bus d.es not indicate that she had illicit relations with Jagtarsingh and it was for that reason she had boarded bus to go away with the deceased. It might be a coincident that the appellant, Jagtarsingh end Mst. Banso and h r mother Mst. 21. Mst. Banso being in the same bus d.es not indicate that she had illicit relations with Jagtarsingh and it was for that reason she had boarded bus to go away with the deceased. It might be a coincident that the appellant, Jagtarsingh end Mst. Banso and h r mother Mst. Pale had travelled in the same bus and Mst, Banso would have been alone and she would have given no reason for her visit to Kanpur the matter would have been different but here she has stated that she and her mother both have bearded the bus from near the bridge of their village and Jagtarsingh and Kakasingh appellant have boarded the bus from different places. Mst. Banso was suffering from pain in her abdomen and therefore was going with her mother to Karanpur for medicine. There is nothing unnatural & improbable in this version so as to disbelieve her testimony. 22. The argument advanced by the learned counsel for the appellant is that when the plea of private defence is taken the accused need not prove his plea beyond reasonable doubt and the burden is discharged if he makes out a prima facie case for exercise of the private defence, To substantiate his arguments Mr. Garg referred to the case of Mohinder Singh v. State of Rajasthan, 1977 W.L.N. 212 The circumstances on record in that case were of all together different nature. In that case the appellant discovered all of a sudden that the deceased, who was his friend, had committed the breach of faith by trying to commit rape on his wife in his house. It was in circumstance that he inflicted blows with a short thick stick on seeing his wife in real danger of being raped. In view of that matter it was held that the burden for the appellant to prove the plea of right of private defence was discharged by proving a prima facie case of the right of private defence, 23. In the present case there is no material on the record to show that the appellant could reasonably apprehend that his sister would be abducted or taken away by the deceased & that he would be shot at by the deceased. In the present case there is no material on the record to show that the appellant could reasonably apprehend that his sister would be abducted or taken away by the deceased & that he would be shot at by the deceased. The learned counsel for the appellant failed to show some such facts & circumstances which could & might provide any occasion to the appellant for the exercise of his right of private defence Much stress has been laid by Mr. Garg on the point that according to Gurbachan singh the appellant and the deceased were just near the bus at time of the bring of the gun while in the site plan the place of incident has been shown to be a few feet away from the bus. From this material it has been argued that (Jagtar singh and Mst. Banso might have proceeded a little ahead and then being suddenly provoked the appellant might have fired the shot. We are unable to concede to this contention. In order 10 have a right of private defence as claimed by the appellant it should have been shown that there was an assault on Banso with the intention of abducting her, when Mst. Banso herself does not state that here was any assault on her or any attempt to abduct her by the deceased or that she went alone with the deceased, there arises no question of the appellant bring annoyed, and exercising any right of private defence. Defence of two types has been taken in the case One is about the right of private defence which we have just discussed. Other is the commission of the crime due to the appellant being deprived of power of self control by grave and sudden provocation. When the ground of annoyance to the appellant has been disbelieved, there arises no question of his being provoked on that score. 24. We have very carefully gone through the evidence on record and examined the circumstances in order to find out whether there was any reason for' the appellant to get provoked so as to bring his case within the exception provided in section 300 Indian Penal Code, when the allegation of Mst. Banso being taken by Jagtarsingh is believed by herself there is no evidence about any hot altercation between the appellant and the deceased. Banso being taken by Jagtarsingh is believed by herself there is no evidence about any hot altercation between the appellant and the deceased. Further there is no evidence that there) was any pistol with Jagtarsingh at the time of the incident hence no question any imminent danger to the appellant or his being deprived of power of self control on account of grave and sudden provocation does arise. 25. So far as the allegation against the unfairness of the prosecution in noil examining the important witness like Bhaggo and Mst. Pale are concerned we man say that Bhaggo's presence at the time of the incident is not established. Apart front it when number of eye witnesses including the driver, conductor, Gurbachansingh Constable Hanumanaram etc., were examined no useful purpose would have been served by adding a few more to narrate the same tale. Regarding Mst. Pale, argument of Mr. Garg is that she being the mother of Mst. Banso and the appellant must have been in the know of the affair regarding the relation between Mst. Banso and Jagtarsingh and so she could have stated as to what had actually happened the relevant time. According to the learned counsel prosecution has intentional dropped her because of the apprehension that she would tell the true story. Placing reliance on the principles annunciated in the case of Ratilal Bhanji Nithani v. State of Maharashtra & other, 1971 S.C.C. 231 and State of U.P. and another v. Jaggo Jagdish ands others, 1971 S.C.C. 401 . Mr. Garg emphatically argued that this Court should examine Mst. Pale order to arrive at a just decision. There is no dispute about the principle that the appellant court has power to examine any witness which insists opinion is essential for unfolding the truth of the case and which may help in arriving at a just conclusion. But in our opinion Mst. Pale can not be considered to be an essential witness in the case because in view of Mst. Banso's statement her mother even if examiner could not have served any purpose. So far as the actual occurrence is concerned thee are number of witnesses from the prosecution side and Mst. Pale's examination would have only multiplied the number of the witnesses. In these circumstances are not inclined to accept the request of learned counsel for the appellant that Pale may be examined now. 26. So far as the actual occurrence is concerned thee are number of witnesses from the prosecution side and Mst. Pale's examination would have only multiplied the number of the witnesses. In these circumstances are not inclined to accept the request of learned counsel for the appellant that Pale may be examined now. 26. We are live to the principle that the burden which the accused is discharge in establishing his plea of right of private defence or bringing his case any of the exception given in Section 300 is not so severe as that on the prosecuting for establishing its case while the prosecution is expected to prove the case again the culprit beyond reasonable doubt the purpose of defence is served if from preponderance of the probabilities it can be inferred that the defence story may be probable. While discussing the evidence in the case before us we have examined [evidence and circumstances in this light and we are inclined to say that defence story is not believable. 27. In such circumstances, we do not find any justification in interfering with finding of the learned Sessions Judge which are based on good reasoning's. 28. Consequently the appeal being devoid of force is dismissed. The appellant is in jail he would serve out the sentences awarded to him by the trial court.Appeal Dismissed. *******