JUDGMENT 1. - This is appeal by convict Roop Singh who has been convicted by Additional Sessions Judge Deeg (Bharatpur) for offence under Section 302 I. P. C. and sentenced to life imprisonment for committing murder of Gordhan Singh. 2. The prosecution case is that on 4-1-1983 in the night at 7, 45, Sohan Lal P. W. 2 reported the police at Police Station, Deeg by written report (Ex. P. 2) that in that evening at about 7.00 P.M. Gordhan Singh was returning from the court after attending his case. When he was passing on the way near his house, accused Roop Singh and many others whose names were mentioned in the report, surrounded him and at the instance of all the accused, Roop Singh fired a gun, on account of which Gordhan Singh after receiving gun shot injury, died on the spot and thereafter a case was registered against all the accused persons Under Sections 147, 148, 149 and 102 I. P. C. But after investigation, it was found that accused Sughad, Dalveer Singh, Rajendra and Bhojraj were not involved in the instant incident and, therefore, the challan was filed against accused Roop Singh Ranvir, Raghuvir, Rajvir, Balvir and Ratan Singh. 3. The prosecution in support of its case examined P. W. 1 Dr. Brijendra Singh, P. W. 2 Sohan Lal, P.W. 3 Ram Singh, P. W. 4 Samunder Singh P. W. 5 Tota P. W. 6 Om Prakash and P. W. 7 Shri Ram. The accused were then examined under section 313 Criminal Procedure Code The accused in their defence examined D. W. 1 Devi Singh. 4. Learned trial court after hearing the arguments from both sides came to the conclusion that except Roop Singh, no other accused was involved in the incident and, therefore, acquitted all of them. Against Roop Singh, it was found that he was responsible for causing the death of Gordhan Singh by gun shot wound and, therefore, he was convicted under section 302 I. P. C. 5. Before us, Mr. Dhanker concentrated on the submission that the case cannot travel beyond Section 304 (2) of the Indian Penal Code as according to the prosecution evidence itself both hoop Singh and his son Rajvir received injuries and it was only to rescue Rajvir that Roop Singh had to intervene. Mr. Before us, Mr. Dhanker concentrated on the submission that the case cannot travel beyond Section 304 (2) of the Indian Penal Code as according to the prosecution evidence itself both hoop Singh and his son Rajvir received injuries and it was only to rescue Rajvir that Roop Singh had to intervene. Mr. Dhankar submitted that at the most it can be said,' though he would not like to make any concession on that point, that the accused exceeded the right of private defence if the court is not inclined to acquit the accused by holding that the accused acted in the right of private defence and deserves acquittal. 6. Mr. Dhankar submitted that the 'injuries on' the person of Roop Singh are such that they cannot be caused by a fall on stones as has been held by the trial court and no such suggestion was made to the medical' expert who testified about the injuries of Roop Singh and his son. 7. Mrs. Kamla Jain, Public Prosecutor assisted by Mr. S. L. Singhal has opposed the prayer of Mr. Dhankar. 8. We have given a thoughtful consideration to the rival contentions of learned counsel for the parties and have also gone through the record, which we have called in order to decide it at this stage in view of the joint-request made earlier. 9. We may at the very thresh hold, point out that according to the evidence of Dr. Brijendra Singh (P. W. 1) accused Roop Singh and his son Rajvir received the following injuries:Ravir: 1. Laceration with swelling with contusion 1/4"x1"x1/4"-l" x 2" Constusion on the, right side of face Swelling extending up to and covering of lid: Roop Singh : 1. Swelling with contusion 3"X 21/2" on the left muscle of left leg. 2 Laceration 2"X 1/2X ⅛ " on the right side of skull. 3. Laceration 1/2" X "I/8" on the left side of scalp. 4. Contusion with swelling 11/2"X11/2" swelling 1".X1/2 1/2" x1/4"x ⅛ " on the right knee uper part. 5. Abrasion I 1/2"X1/4"X⅛" on the right side of shoulder. 6. Contusion 3"X-11/2" on the right upper arm. 7. Contusion 31/2"X 1/2" on the back right side. We find that the injuries on the person of Roop Singh are 7 in all and they are swelling, Abrasion, contusion and laceration. 5. Abrasion I 1/2"X1/4"X⅛" on the right side of shoulder. 6. Contusion 3"X-11/2" on the right upper arm. 7. Contusion 31/2"X 1/2" on the back right side. We find that the injuries on the person of Roop Singh are 7 in all and they are swelling, Abrasion, contusion and laceration. We, further find that these injuries have been caused on the various parts of the body like skull, left leg, scalp, right knee upper part, right side of shoulder, right upper arm back right side. It would thus be seen that the injuries were on the left side as well as on the right side and on the skull and scalp, leg, right upper arm and back ride side. The doctor has opined that these injuries can be caused by blunt weapon. It appears that Dr. Brijendra Singh was not put any question by the prosecution either in the re-examination or by the request or re-calling him to suggest that these injuries can be caused by a fall on stones or otherwise. Similarly regarding Rajvir s/o Roop Singh Dr. Brijendra Singh (P. W. 1) has opined that he had a laceration with swelling with contusion on the right side of face extending upto the convening of lip and such an injury could be caused by blunt weapon. 10. It should be noticed that at the time of the arrest of the accused, which was done on the same day of the incident, the Investigating Officer, who assisted the accused, has also mentioned in the arrest memo about the presence of all these injuries on the person of accused Roop Singh. The duration of the injuries also coincides with the incident and it is not disputed by the prosecution that in view of the medical opinion and the experts' finding, chess injure are correlated to the incident in which accused Roop Singh fired at Gordhan Singh, deceased. 11. It is now to be seen whether these injuries caused to the accused counsel have been caused to the accused by a fall on the stones as found by the trial court. 12. 11. It is now to be seen whether these injuries caused to the accused counsel have been caused to the accused by a fall on the stones as found by the trial court. 12. Before we proceed further, we may like to mention that in (1) Laxmi Singh v. State of Bihar (AIR 1967 SC 2263) their Lordships of the Supreme Court have laid down the following principles in the cases where the injuries on the person of the accused sustained at time of occurrence remain explained. Their Lordships, observed, as under : "In a murder case, the non-explanation' of the injuries sustained by the 'accused' of about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:- (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case." In the present case we find that the story of the prosecution, which was presented by the Investigating Agency in the form of challan has not been believed by the trial court, in as much as the prosecution case that 9 accused encircled and surrounded the deceased and out of them, Rajvir, Roop Singh had Guns and others had late his and all asked Roop Singh to kill Gordhan, has not been believed. We have already mentioned in the beginning the except Roop Singh, all.accused have been acquitted. The other witnesses have alleged that many of the accused had Guns, but it is not necessary for us to discuss the evidence of individual witness because the trial court has already disbelieved them and there is no appeal against the accused, who have been acquitted by the trial court. We, therefore, find that the story which has been believed is limited to the extent the Roop Singh fired at Gordhan Singh. We, therefore, find that the story which has been believed is limited to the extent the Roop Singh fired at Gordhan Singh. We find that except P. W. 3 Ramsingh, no other witness has given explanation about the injuries of Roop Singh although in cross examination, Samunder Singh in a casual manner has stated that Roop Singh and Rajvir fell on the stones. Ram Singh has said that Roop Singh fell on the stones and nothing has been said about Rajvir. 13. Apart from the fact that the prosecution has not conic with the positive case, we further find that the story of Roop Singh and Rajvir getting injuries on account of fall on the stones, has neither been put to the Dr. Brijendra Singh (P. W. 1) nor even otherwise, appears to be correct. The site of the injuries of Roop Singh and particularly the fact that injuries were received on various parts of the body on all sides front as well as back, on the skull and scalp, on the leg, right as well as left side of the back, goes to show that they could not be received by a simple fell on the stones. We, therefore find that the explanation sought to be given by the prosecution in casual manner about the injuries of Roop Singh and Rajvir, is not correct and the trial court was not justified in accepting it and rejecting the defence version on such untenable grounds. 14. The question, which now arises for consideration is whether in the circumstances in which the accused injuries having not been properly explained by the prosecution, what result can logically and legally fall from it. As we have extracted the proposition of the law laid down by Hon'ble the Supreme Court in the ,above mentioned decision, one of the questions, which can fall is that in case there is defence version, which explains the injuries on the person of the accused, it is rendered probable so as to show doubt on the prosecution case. This principle has been enunciated on the basis of the law laid down in (2) Mohar Rai v. State of Bihar (1968) 3SCR 525: ( AIR 1968 SC 1281 ) and (3) Puran Singh v. State of Punjab ( AIR 1975 SC 1674 ). This principle has been enunciated on the basis of the law laid down in (2) Mohar Rai v. State of Bihar (1968) 3SCR 525: ( AIR 1968 SC 1281 ) and (3) Puran Singh v. State of Punjab ( AIR 1975 SC 1674 ). In our opinion, the present one is a case where the genesis of the offence as alleged has been turd to be proved that either 11 or 9 accused persons encircled the deceased and that has not been believed by the trial court. We further find that the only portion which has been rightly believed is that Roup Singh fired at Gordhan Singh, which proved fatal and he is therefore, responsible for causing the death of Gordhan Singh. 15. In the above facts and circumstances, we have now to examine what offence has been committed by accused Roop Singh. We find that Roop Singh's son Rajvir received one injury and D. W. 1 Devi Singh states that the complainant party caught hold of Rajvir and they were armed with weapons and Roop Singh was trying to rescue Rajvir from those persons. Roop Singh in his statement has also stated that Rajvir was caught by the complainant party including Gordhan Singh and Gordhan Singh was beating Rajvir. On this, he intervened and he was also beaten at that time. The cumulative effect of the above is that the defence story that Rajvir was being caught and beaten by the complainant party including Gordhan Singh, deceased, is probable and plausible and there is preponderance of probability about its truth, though it may not have been proved as such. It is established law that the defence is not required to be proved. The preponderance of the probability of the defence version being truthful is enough for accepting it. 16. In the present case, therefore, what we find is that accused Roop Singh as well as his son both were beaten by the complainant party and Roop Singh in all probability fired to rescue his son as well as himself, apprehending danger. 17. It has not been proved that the complainant party had any weapon like gun or a sharp-edged by which the accused could have apprehended death. The injuries which have been caused to accused Roop Singh and his son are all simple in nature. 17. It has not been proved that the complainant party had any weapon like gun or a sharp-edged by which the accused could have apprehended death. The injuries which have been caused to accused Roop Singh and his son are all simple in nature. In view of the above, we find that the principles said down by the Hon'ble Supreme Court in (4) Yogendra Morarji v. State of Gujarat (AIR 1480 SC 660), have discussed the general principles embodied in the Penal Code governing the exercise of the right of private defence more, pars Nos. 13 to 16 and then observed as under : X X X X X 18. We have also no hesitation in the present case in holding that the accused exceeded the right of private defence and is guilty for offence under section 304, Part II, Penal Code. Consequently, the conviction of accused Roop Singh under section 302. I. P. C. and the sentence awarded thereunder is set aside, as indicated above and he is convicted under Section 304 Part II. Penal Code and sentenced to 5 years rigorous imprisonment. The appeal is partially accepted. *******