K. P. MOHAPATRA, J. ( 1 ) ALTHOUGH the appellant was charged for an offence under section 302, he was found guilty under section 304 Part I of the Indian Penal Code (I. P. C. for short) and was sentenced to undergo rigorous imprisonment for four years by the learned Sessions Judge, Jaipur. ( 2 ) THE prosecution case in short, is that there was previous litigation and enmity between the informant (P. W. 1), his father, deceased Braja Sahukar of village Alubadi on one hand and Simadri (D. W. 1) and his maternal uncle, the appellant, of village Berangpadar on the other. On 23-2-1980 at about 8 a. m. , P. W. 1 and the deceased were proceeding to village Durgi via Berangpadar. At the outskirt of the village D. W. 1 saw them and ran towards the village Basti. While running, he stumbled against a fence and fell down. On getting up, he entered inside the house of the appellant and raised bulla that he was assaulted by the deceased. At this, the appellant came out of his house, brought a lathi (M 0. I) from a nearby cow-shed and dealt a blow on the head of the deceased, who sustained a bleeding injury and fell down on the ground unconscious. He was removed to Durgi dispensary where first-aid was given and then he was taken to the Christian Hospital at Bissumcuttack. P. W. 1 lodged FIR (Ext. 9) at the police station and a case under section 307 IPC was registered. On 24-2-1980, however, the deceased succumbed to the head injury and the case was converted into one under section 302 I. P. C. Ultimately charge-sheet was submitted against the appellant for an offence under section 302 I. P. C. having committed the murder of the deceased. ( 3 ) ACCORDING to the appellant's defence, on the date and time of the alleged occurrence D. W. 1 was returning from Bissumcuttack to his village Kalamguda via village Berangpadar. At the outskirt of the village Berangpadar, he met P. W. 1 and the deceased. Seeing him, P. W. 1 told the deceased to catch hold of D. W. 1. When the deceased caught hold of D. W. 1, P. W. 1 brought a cycle chain from his bag and assaulted D. W. 1 by means of it. At the outskirt of the village Berangpadar, he met P. W. 1 and the deceased. Seeing him, P. W. 1 told the deceased to catch hold of D. W. 1. When the deceased caught hold of D. W. 1, P. W. 1 brought a cycle chain from his bag and assaulted D. W. 1 by means of it. D. W. 1 snatched away the cycle chain from his hand which fell on the ground. Thereafter P. W. 1 took out a pole from the nearby fence and assaulted D. W. 1 with it. While he was attempting to deal a second blow, the deceased intervened, when the blow struck his head accidentally. The appellant was not present at the time of the alleged occurrence and he did not assault the deceased by the Lathi (M. O. 1 ). ( 4 ) THE prosecution, besides other witnesses, examined four eye witnesses to the occurrence (P. Ws. 1, 2, 3 and 12 ). The appellant examined D. Ws. 1 to 5 for proof of his defence. The learned Sessions Judge in a thoroughly discussed judgment accepted the prosecution case, disbelieved the appellants defence and convicted and sentenced the appellant as aforesaid. ( 5 ) DR. K. B. Rao (P. W. 6) performed the post-mortem examination of the deceased and found one lacerated wound over the scalp in the midline directed anterio-posteriorly measuring 6 cm. X 1 cm. X scalp deep. The wound was found stitched and was partially in healing process. The age of the wound was about two days and could have been caused by a blunt weapon such as the lathi (M. O. I ). On dissection he found effusion of blood in the scalp at the site of the wound in an area measuring 10 cm. X 6 cm. He did not notice fracture of the scalp. There was subdural effusion of blood in the left parietal region in an area measuring 5 cm. X 2 cm. The brain was congested. According to his opinion, the injuries were ante-mortem. The death was due to intracranial haemorrhage as a result of the head injury which was sufficient in the ordinary course of nature to cause death (vide postmortem report Ext. 1 ). In view of the above medical evidence, the court below arrived at the correct conclusion to the effect that the death of the deceased was homicidal in nature. The death was due to intracranial haemorrhage as a result of the head injury which was sufficient in the ordinary course of nature to cause death (vide postmortem report Ext. 1 ). In view of the above medical evidence, the court below arrived at the correct conclusion to the effect that the death of the deceased was homicidal in nature. It is, therefore, to be found out from the evidence on record as to whether the appellant was responsible for causing the head injuries on the deceased or the defence case set up by him was true to be accepted. ( 6 ) P. W. 1, son of the deceased, was present at the time of the occurrence. On account of previous enmity and litigation with D. W. 1, a close relation of the appellant, which facts are indisputed, he is an interested and partisan witness. On that ground, however, his evidence cannot be thrown over board. On the other hand, it is desirable that the court should be on guard and scrutinise his evidence with more than ordinary care. If having done that the court finds that his evidence does not suffer from any legal or factual infirmity, there is no reason to distrust the same. The aforesaid principle of law has long been settled by a series of decisions of the Supreme Court, such as, Ravulappalli Kondaiah and others v. State of Andhra Pradesh1 and State of U. P. v. Han Ram and ors. 2 P. W. 1 stated that along with his deceased father he was proceeding to village Durgi in the morning of 23-2-1980. At about 8 a. m. at the outskirt of village Berangpadar, they saw Simadri (D. W. 1 ). Simadri ran towards the village Basti and while so running stumbled against a fence and fell down. He got up and entered inside the house of the appellant and raised hue and cry saying that he was assaulted by the deceased. Hearing this, the appellant came out of his house, went to a nearby cow-shed, brought a wooden lathi (M. O. I) and dealt a blow on the head of the deceased, who sustained a bleeding injury on the head and fell down on the ground unconscious. Hearing this, the appellant came out of his house, went to a nearby cow-shed, brought a wooden lathi (M. O. I) and dealt a blow on the head of the deceased, who sustained a bleeding injury on the head and fell down on the ground unconscious. In cross- examination, he stated that Simadri (D. W. 1) did not accompany the appellant to the place of occurrence, but after the occurrence was over, he arrived there and stood at a distance of about 5 cubits. He denied the suggestion that he assaulted Simadri (D. W. 1) by means of a cycle chain and, his lathi blow meant for him accidentally struck the head of the deceased. P. W. 2 Bhaskar Dalapati named in the F. I. R. was a resident of village Durgi. He stated that he knew the deceased and the appellant. On the date and at the time of occurrence, he was proceeding from his village towards village Alubadi to sell Lia (fried paddy ). While he was at the outskirt of village Berangpadar, he saw P. W. 1 and the deceased proceeding towards Durgi. He also saw the appellant coming from the Basti side armed with a lathi. The appellant dealt a blow by means of the lathi on the head of the deceased. As a result, the deceased fell down on the ground. The appellant left the lathi at the place of occurrence and went away. He did not see Simadri (D. W. 1) at the place of occurrence. The witness saw the occurrence from a distance of 20 to 25 cubits. In cross-examination he stated that he did not raise hue and cry on seeing the occurrence. He also did not enquire from the appellant as to why he assaulted the deceased nor did he make any enquiry from P. W. 1. After witnessing the occurrence, he proceeded towards Alubadi by a different route. He told about the incident to some of the villagers of Alubadi though he could not name all of them except one Ayana Kondh. He did not know where from the appellant brought the lathi. Urukudi, Nirdhan and Rambha were near the place of occurrence. After witnessing the occurrence, he proceeded towards Alubadi by a different route. He told about the incident to some of the villagers of Alubadi though he could not name all of them except one Ayana Kondh. He did not know where from the appellant brought the lathi. Urukudi, Nirdhan and Rambha were near the place of occurrence. He was confronted with his previous statement made before the Investigating Officer (P. W. 13) to the effect that he saw the deceased and Simadri (D. W. 1) holding each other and when the former pushed the latter, Simadri (D. W. 1) fell on a fence and sustained a bleeding injury on his head. He admitted that Kadambari, sister of the appellant, had filed a criminal case against him for assault. P. W. 3 a resident of village Durgi was going to village Berangpadar to purchase straw for thatching of his house. At the outskirt of the village he saw P. W. 1 and the deceased coming from Alubadi. From a distance of about 40 cubits he saw that the appellant dealt a lathi blow on the head of the deceased who fell down on the ground. The appellant throw away the lathi and left. Being afraid, he went back to his village. He saw P. W. 2 on the footpath ahead of him. In cross-examination he stated that he did not raise hue and cry when he saw the assault and told about the incident to some of his villagers. He did not see Simadri (D. W. 1) at the spot. PW5 2 and 3 belonged to different villages and there is possibility to criticise them as chance witnesses. According to the decision reported in Rana Pratap and v. State of Haryana, the expression chance witness is borrowed from countries where every mans home is considered his castle and everyone must have an explanation for his presence elsewhere or in another mans castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are chance witnesses, even when murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are chance witnesses, even when murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence. P. W. 2 and 3 have stated in their evidence the purpose of their going to village Alubadi and Berangpadar respectively and it was not unusual that they happened to be present near the place of incident on the date and at the time thereof. Therefore, their evidence which supports the evidence of P. W. 1 cannot be discarded merely on the ground that they were chance, witnesses, when as a matter of fact, there is no inherent improbability or discrepancy in their evidence. P. W. 12 was a resident of village Bernagpadar. He stated that he was lighting a Pika (an indigenous cigar) in the Ban of one Dhanful. He saw P. W. 1 and the deceased coming from Alubadi side and the appellant assaulting the deceased on his head by means of a lathi. The deceased fell down on the ground. The appellant threw away the lathi and ran away. In cross-examination he stated that he did not see any fight between Simadri (D. W. 1) on one side and P. W. 1 and the deceased on the other. He saw the occurrence when he was going towards a brick kiln where he worked as labourer and stopped in the Ban of Dhanful to light his Pika. In cross-examination nothing was brought out so as to disbelieve his evidence. P. W. 5 stated that when he was cutting bushes in the Dongar (hillock) near his village Alubadi along with one Madangi Baganna, P. W. 1 came and told them that the appellant had assaulted his father by means of a lathi on his head near village Berangpadar and sought for their, assistance to remove him to the hospital. Accordingly he along with Madangi Baganna went to the place of occurrence and saw the deceased lying on the ground with a bleeding head injury. He was unable to talk. The lathi (M. O. I) was lying near him. They carried the deceased to the dispensary at village Durgi and left. Accordingly he along with Madangi Baganna went to the place of occurrence and saw the deceased lying on the ground with a bleeding head injury. He was unable to talk. The lathi (M. O. I) was lying near him. They carried the deceased to the dispensary at village Durgi and left. The evidence of this witness will show that immediately after the occurrence P. W. 1 informed him that the deceased had been assaulted by the appellant. ( 7 ) THE aforesaid evidence adduced by the prosecution is overwhelming so as to support the conclusion drawn by the learned Sessions Judge to the effect that the prosecution established that the appellant was the assailant of the deceased. The appellant has examined five witnesses in support of his defence. Before embarking upon a discussion as to the truth thereof, it is to be pointed out that an accused can prove his case by preponderance of probabilities, that is to say, he need not prove his case beyond reasonable doubt. If he is able to establish with reasonable probability that the case set up by him could be believed and accepted as probable, then his defence according to law has to be accepted. The decisions in support of the above proposition are Mahesh Prasad Gupta v. State of Rajasthan3, Chaturdas Bhagwandas Patel v. The State of Gujarat,4 and Tilok Chand Jam v. State of Delhi. 5 ( 8 ) D. W. 1 Simadri stated that on the date of occurrence at about 8 a. m. while he was returning from Bissumcuttack to his village Kalamguda he saw P. W. 1 and the deceased at the outskirt of village Berangpadar. Seeing him P. W. 1 told the deceased to catch hold of him. The deceased accordingly caught hold of him and P. W. 1 brought out a cycle chain from his bag and assaulted the witness by means of it. When D. W. 1 snatched away the cycle chain, P. W. 1 took out a pole from a nearby fence and assaulted the witness by means of it. When he was dealing the second blow the deceased intervened and the blow fell on the head of the deceased. According to him, the appellant did not come to the spot at all. He went to the dispensary at Durgi and the Pharmacist who was present stitched his injuries. When he was dealing the second blow the deceased intervened and the blow fell on the head of the deceased. According to him, the appellant did not come to the spot at all. He went to the dispensary at Durgi and the Pharmacist who was present stitched his injuries. From Durgi dispensary he was removed to the Misson Hospital at Bissumcuttack. At Bissumcuttack he lodged F. I. R. about the incident. He admitted his previous enmity and litigation with P. W. 1 and the deceased. D. W. 2, a resident of village Berangpadar stated that P. W. 1 assaulted D. W. 1 by means of a cycle chain while the deceased caught hold of the latter. When the cycle chain fell down on the ground on account of struggle, P. W. 1 brought out a pole from a nearby fence and- dealt a blow on the head of D. W. 1. At that time the deceased came near both to intervene and the blow fell on his head. The deceased fell down. P. W. 3 a resident of Tala Berangpadar stated that he heard hue and cry raised by P. W. 1 and the deceased and saw that P. W. 1 assaulted D. W. 1 by means of a cycle chain while the deceased had caught hold of him. D. W. 1 fell down on the ground. P. W. 1 picked up a pole from a nearby fence and dealt a blow on the head of D. W. 1 by means of it. When he saw dealing another blow, the deceased tried to intervene and so the second blow fell on his head. After receiving the blow the deceased fell down on the ground. D. Ws. 4 and 5 who belonged to the same village stated to the same effect that the second blow by means of a pole aimed at D. W. 1 hit the bead of the deceased while he tried to intervene. There seems to be a vital discrepancy between the evidence of D. W. 1 and the evidence of D. Ws 2 to 5. D. W. 1 did not state that after being assaulted by the cycle chain he fell down on the ground. The positive evidence of D. Ws. There seems to be a vital discrepancy between the evidence of D. W. 1 and the evidence of D. Ws 2 to 5. D. W. 1 did not state that after being assaulted by the cycle chain he fell down on the ground. The positive evidence of D. Ws. 2 to 5 was that D. W. 1 after being assaulted with the cycle chain by P. W. 1 fell down on the ground and while he was lying on the ground the first blow by means of a pole was dealt on his head by P. W. 1 while he was aiming the second blow, the deceased intervened and so the second blow struck his head. Apart from the above discrepancy, the very defence case seems highly improbable. If, both P. W. 1 and the deceased intended to assault D. W. 1 and as a matter of fact, according to the defence plea and defence evidence, the deceased actually caught hold of D. W. 1 to facilitate the assault by P. W. 1, it was highly unnatural that the deceased would during the assault try to save D. W. 1 and intervene and in that process accidentally got hit by a lathi. It was broad day light and it was also highly unlikely that P. W. 1 would accidentally hit his own father on the head. In order to know the true story, the F. I. R. lodged by D. W. 1 at Bissumcuttack was neither called nor proved. The F. I. R. contained the first and the earliest version of D. W. 1 and so had it been called for and produced, the true incident would have come to light. For the above reasons, the learned trial Judge arrived at the correct conclusion in rejecting the defence version which was not even remotely probable. ( 9 ) ONE of the criticisms of the prosecution case was that it did not explain the injury of D. W. 1. First, D. W. 1. was not the accused and second, he was a witness for the appellant and if the appellant wanted to rely on the injuries sustained by D. W. 1 it was open to him to call for the injury report and prove it. First, D. W. 1. was not the accused and second, he was a witness for the appellant and if the appellant wanted to rely on the injuries sustained by D. W. 1 it was open to him to call for the injury report and prove it. It is settled principle of law that when the injuries on the accused are of serious and grievous nature, the prosecution is bound to prove as to in what circumstances the accused sustained the injuries. But if the injuries on the accused are of minor and superficial nature, there is no obligation on the part of the prosecution to prove as to how the accused sustained such injuries (see Lakshmi Singh and ors, v. State of Bihar ). 6 This case is different because the accused did not receive any injury, but on the other hand, one of his witnesses Simadri (D. W. 1) received some minor and superficial injuries. Therefore, the prosecution case cannot be viewed with suspicion. ( 10 ) ON the aforesaid analysis, I do not find adequate grounds to differ from the conclusion arrived at by the learned trial Judge. Therefore, interference with the impugned order of conviction and sentence is unwarranted. The appeal accordingly fails and is hereby dismissed. Appeal dismissed. .