KUNDAN SINGH, J. This appeal has been preferred by the applicant Wasiq Ahmad and Ansar alias Chhotan against the judgment and order dated 4-4-79 passed by Shri D. L. Soni, the then III Add ). Sessions Judge, Saharan- pur, in S. T. No. 377 of 1979 whereby he convicted appellant Wasiq Ahmud under Section 302, IPC and sentenced him to life imprisonment, Appellant Ansar alias Chhotan has been convicted by him under Section 302/34, IPC and Section 25 of the Arms Act and has been sentenced to life imprisonment and 2 years rigorous imprisonment, respectively, directing both the sentences to run concurrently. 2. The prosecution case in brief, is that one AH Hasan, resident of village Jhabiran within police station Deoband, district Saharanpur, was murdered in which Anis Ahmad (the deceased in the present case) was prosecut ed along with others. On trial, Anis Ahmad was acquitted on 8-8-78 in that case, Wasiq Ahmad, the appellant, had appeared as a witness against Anis Ahmad in that murder. Wasiq Ahmad was very much annoyed from the acquittal of Anis Ahmad in the murder of Ali Hasan. On the fateful days i. e. 17-7-1978 Anis Ahmad had gone to a mosque to take bath while he was descending the stairs of the Chabutra at about 7 a. m. in return, and was on the Rasta. Shot was fired at Anis Ahmad and his cries and sound of shot attracted the witnesses Murtaza (PW 2) Islam (PW 3) Mustafa and Nasibuddin, who witnessed Wasiq Ahmad, Ziauddin, Islam alias Madoo, Ansar alias Chhotan and Mateen dragging the deceased to their Bagad (Campus) which was just opposite to the mosque. At that time Wasiq Ahtnad was armed with a gun, while Ansar alias Chhotan was having a country-made pistol The witnesses interrupted Wasiq Ahmad but thwarted them off at the point of gun and the deceased was dragged into the Bagad where Wasiq Ahmad fired a shot at Anis Ahmad infront of house of Asghar, as a result of which he died instanteneously, Wasiq Ahmad fired 2-3 shots more in air, at the direction of Wasiq Ahmad, the appellant Ansar alias Chhotan placed a- country-made pistol in the hand of deceased Anis Ahmad and closed his fist and thereafter the accused left the place of incident. Murtaza narrated the entire episode to Mohammad Ayub the father of the deceased, but he could not go to see the deadbody of his son out of fear and danger from the accused persons, straightway he went to Police Station Deoband where a report was lodged at 8. 30 a m. on 17-8-78. 3. The investigation of the case was handed over to Sub-Inspector Dhanpal Singh Bhati, who reached the spot the same day and arrested accused appellant Wasiq Ahmad from the village and recovered his licensed D. B. B. L. gun along with two live cartridges in its barrel and a belt of the cartridges, containing two discharged cartridges. He, also prepared a site plan of the venue, one country made pistol having discharged cartridges in its barrel was found in the fist of Anis Ahmad deceased by the Investigating Officer. The Investigating Officer also found a clay of Multani Mitti in the pocket of the Baniyan and two live cartridges in the fold of the underwear of the deceased Anis Ahmad. Thereafter the dead body was sent for postmortem examination to the mortuary where the autopsy was conducted by Dr. R. K- Agarwal (PW 5) who found four gun shot lacerated wound including three having exit marks. The Doctor also found two small contusions and four abrasions on the person of the deceased. The Investigating Officer also recorded the statements of the witnesses under Section 161, Cr. P. C. and after completion of the investigation he submitted charge-sheet against five persons including the two appellants. 4. In all, the prosecution examined seven witnesses in support of its case. Out of them, Murtaza (PW 2) and Islam (PW 3) are eye-witnesses of the incident, while Ayub the father of the deceased is the informant who proved the first information report and was examined as PW 1 Dhanpal Singh Bhati (PW 4) is the Investigating Officer, who submitted charge-sheet against the accused persons, Dr. R. K. Agarwal (PW 5) bad conducted the postmortem examination on the deadbody of the deceased Anis Ahmad, while all other witnesses are of formal nature. 5. The appellants denied the prosecution version. Wasiq Ahmad in his statement recorded under Section 3! 3, Cr. P. C. stated that on the date of occurrence at about 6. R. K. Agarwal (PW 5) bad conducted the postmortem examination on the deadbody of the deceased Anis Ahmad, while all other witnesses are of formal nature. 5. The appellants denied the prosecution version. Wasiq Ahmad in his statement recorded under Section 3! 3, Cr. P. C. stated that on the date of occurrence at about 6. 30 a. m. Anis Ahmad came to his house, abused him and told that he has been acquitted in spite of his testimony against him and now he would kill him and immediately thereafter fired a shot but providentially he escaped the aim narrowly. Apprehending danger to his life he was keeping a gun with him at all times and It was in self-defence that he fired shot at Anis Ahmad from his gun which hit him and he died on the spot. Thereafter village people collected on the spot and the police took him into custody. The other appellant Ansar alias Chhotan denied his presence on the spot and stated that he has been implicated falsely due to enmity. 6. The learned Judge after thorough examination of the evidence on record found that no case of rioting under Section 147 and 149, I. P. C. was made out against co-accused Islam, Ziauddin and Mateen hence he acquitted them of the charges levelled against them. However, he found the appellants guilty of the charges levelled against them and convicted and sentenced each of them as aforesaid. It is against that order of conviction and sentence that the appellants have come up to the Court in the present appeal. 7. At the very outset, the learned counsel for the appellants argued that appellant Wasiq Ahmad had fired the shot in the right of private defence. The deceased was a bad character. He had already committed murder of his fellow villager Ali Hasan and his notorious actions were encouraged by his acquittal in the murder case of Ali Hasan. He was in wait for an opportunity to take revenge from his enemises, especially Wasiq Appellant who had appeared as a prosecution witness against the deceased in that murder case. Appellant Wasiq Ahmad was apprehending danger to his life from the deceased, hence out of safety he was always keeping gun with him. He was in wait for an opportunity to take revenge from his enemises, especially Wasiq Appellant who had appeared as a prosecution witness against the deceased in that murder case. Appellant Wasiq Ahmad was apprehending danger to his life from the deceased, hence out of safety he was always keeping gun with him. On the fateful day the deceased came at the house of the appellant Wasiq and challenged him for giving evidence against him in the murder trial of AH Hasan and then fired a shot, which luckily did not hit and Wasiq Ahmad escaped unhurt. Thereupon Wasiq apprehending danger to his life, fired a shot in self-defence, which hit the deceased and he succumbed to his injury. The country-made pistol was found in the hand of the deceased and two live cartridges were also recovered from the fold of his underwear. After causing death of the deceased Wasiq Ahmad appellant did not run away and he was arrested by the police from his house and his gun was also taken into custody. In the last the learned counsel for the appellants contended that it was a case in which the facts and circums tances of the prosecution case itself drag one only to a conclusion that the appellant Wasiq Ahmed exercising his right of private defence had fired the shot which unfortunately hit the deceased resulting into his death. According to the learned counsel, even if appellant Wasiq has not proved his right of self-defence by leading evidence, still he is entitled to his acquittal and in support of that argument he relied upon two Full Bench decisions of this Court in the case of Prabhu and others v. Emperor, AIR 1941 Allahabad 402 and Rishi Kesh Singh and others v. State, AIR 1970 All 5l 8. In counter to the above submissions of the learned counsel for the appellants, the learned AGA and the learned counsel for the complainant argued that the defence plea taken by the appellant Wasiq Ahmad was belated and afterthought. He had not stated anywhere about the right of private self- defence except in the bald statement made before the learned Sessions Judge under Section 313, Cr. He had not stated anywhere about the right of private self- defence except in the bald statement made before the learned Sessions Judge under Section 313, Cr. P. C. He urged that the own conduct of appellant militates against the plea of self defence insmuch as he did not lodge any FIR of the incident, nor did he report the matter to any higher authority claiming the right of private defence and false implication in the case, nor he took that plea in the bail application nor put any suggestion to any prosecution witness about the use of gun in exercise of right of self-defence and argued that the prosecution was not supposed to lead evidence for refuting all possible pleas from the side of the accused. Regarding the plea of self-defence the learned counsel for the complainant and the A G. A. further argued that the accused-appellant has not discharged the burden of proof as required under Section 105 of the Evidence Act, which reads as under : "burden of proving that case of accused comes within exception,-When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the general excep tions in the Indian Penal Code (XLV of 1860) or within any special exception or proviso contained, in any other part of the same Code or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances. " 9. On the basis of Section 105 of the Indian Evidence Act, the learned counsel for the complianant argued that as appellant Wasiq has not discharged his burden of proof by leading evidence in support of the plea of self-defence, he is not entitled to claim acquittal on that ground. The learned counsel for the appellants, no doubt, admitted that the burden of proof as provided under Section 105 of the Evidence Act is on the accused to establish his plea of self-defence but tried to re-buff it in the manner that the burden of proof is not as onerous on the accused as it is on the prosecution. While prosecution is required to prove its case beyond any reasonable shadow of doubt, the accused can discharge his onus by establishing mere preponderence of probability. While prosecution is required to prove its case beyond any reasonable shadow of doubt, the accused can discharge his onus by establishing mere preponderence of probability. In the present case, on the basis of the evidence on record, we have to see whether the prosecution has proved its case beyond reasonable doubt and the accused: appellant Wasiq Ahmad was able to discharge his onus establishing mere preponderence of probability. 10. We have sifted the entire evidence on record thoroughly and con sidered the arguments advanced from both the sides. The time and place of the occurrence is not disputed. Even the firing of shot by appellant Wasiq Ahmad in his own campus at the deceased is admitted. Only the manner of incident has been challenged. The topograph of the place of incident shows that there is a Chabutra adjacent to the mosque and close to that Chabutra is a Rasta and just opposite to the Mosque is the courtyard (Bagad) of the accused persons, having a common passage of several houses in that Bagad. The Investigating Officer recoreded small land large pieces of the cartridge from near the eastern wall of the Chabutra, which shows that the firing took place on the Rasta closed to the Chabutra of the mosque. Both the eye witnesses have categorically stated that they heard report of the shot and crise of the deceased from the place where the pieces of cartridge were recovered. The defence has not even put a single suggestion to any of the eye witnesses that no incident of the kind as alleged by the prosecution did take place on the rasta near the Chabutra of the mosque. On the contrary, the witnesses have testified that the accused persons dragged the deceased from near the Chabutra and took him into their court- yard and then shooted him out there. The plea of dragging the deceased by the accused from Rasta to the campus is fortified by the medical evidence inasmuch as the Doctor who conducted the postmortem examination on the dead-body of Anis Ahmad had also found two contusions and four abrasions, which in our opinion, could have been sustained by the deceased due to dragging. Further the presence of mud on the legs and Tahmad of the deceased also strengthen the prosecution story about dragging of the deceased from Chabutra to the campus of the accused persons. Further the presence of mud on the legs and Tahmad of the deceased also strengthen the prosecution story about dragging of the deceased from Chabutra to the campus of the accused persons. It has also come in the prosecution evidence that the button of the shirt and Tahmad were recovered by the Investigating Officer from near the body of the deceased. The presence of button and Tahmad speak for themselves that some sort of scuffle had ensure the dragging and during that scuffle the button had plucked from the shirt and Tahmad put off. Further it is also in evidence that a clay of Multani mitti was found in the pocket of the Baniyan of the deceased. That fact also supports the prosecution version that the deceasd had gone to take bath and when he was descending the Chabutra, he was shot at and there after dragged to the court-yard of the accused persons and done to death there. On the contrary, the defence version was that the deceased himself came there with a country-made pistol to Mil Wasiq Ahmad and with that intention he fired a shot on the appellant Wasiq Ahmad but it did not hit him. That version of the defence is belied by the fact that the country-made pistol was recovered by the Investigating Officer from the closed fist of the deceased. After receiving the gun shot injury from the appellant, Wasiq Ahmad the deceased must have wriggled and in that event there was no question of finding the country made pistol in the closed fist of the deceased. It seems that after killing Anis Ahmad the country made pistol had been planted by the appellants in the hand of the deceased and if that could be done, there was no difficulty in placing the live cartidges also in the fold of his under-wear, further it does not appeal to reason that the deceased who was fellow villager of the appellants would dare to go all alone in broad day light in the campus of the appellants to kill Wasiq Ahmad at his own house. There are number of houses in that Bagad and it was not expected of the deceased that at the hazards of this life he had gone in the campus where number of persons were living to kill his enemy because there he could easily be besieged and apprehended by the inmates of the neighbouring houses and had very little chance of escape. 11. Further, it is strange that the appellant Wasiq Ahmad was carrying the gun with him when the deceased had gone there to kill him. It is not his case that on seeing the deceased he had brought the gun from inside his house The appellant Wasiq Ahmad was not supposed to be baring his gun with him all the time in his own house. Therefore, the presence of gun with the appellant at the time when the deceased allegedly went there speaks otherwise and supports the version of the prosecution that in a pre-planned manner the deceased was brought dragged into the campus and done to death. 12. In our opinion, the prosecution has successfully proved that the deceased had gone to take bath on the fateful day in the mosque and while descending the stairs of the Chabutra of the mosque after taking his bath, a shot was fired at him and from there he was dragged inside the campus and was done to death there and accordingly his plea of self-defence fails and is rejected. Had the defence version any grain of truth, the appellants must have lodged a report with the police and reported the matter to higher authorities. What to say of doing all that, not a single suggestion has been put to any prosecution witness that the deceased had fired shot at the appellant Wasiq Ahmad and it was inself-defence that Wasiq had used his gun and caused injury to the deceased, as result of which he died instantaneously. The plea of self-defence is after thought and for the first time had been taken in the state ments of the accused persons recorded under Section 313, Cr. P. C. From the evidence on record it is fully established that the incident had taken place at the time, place and in the manner as alleged by the prosecution. 13. Now the only question that remains to be determined is as to what charge against each of the appellant is proved. 14. P. C. From the evidence on record it is fully established that the incident had taken place at the time, place and in the manner as alleged by the prosecution. 13. Now the only question that remains to be determined is as to what charge against each of the appellant is proved. 14. So far appellant Wasiq Ahmad is concerned, he has admitted that he fired shot at the deceased which ensued in his death. His plea of self-defence having been rejected by us, he is held responsible for the death of Anis Ahmad and we have no option but to uphold the conviction and sentence as passed by the learned Sessions Judge against him. 15. Now adverting to appellant Ansar alias Chhotan, it may be mentioned that his case is at par with those co-accused who have been acquitted by the learned Sessions Judge of the charge punishable under Section 102/34, I. P. C. except that he had planted a country made pistol in he hand of Anis Ahmad when befell down and died on receiving gun shot injury at the hands of co-appellant Wasiq Ahmad. The learned Sessions Judge had given benefit of doubt to co-accused Islam, Mateen and Ziauddin on the ground that they were empty handed and P. W. 2 Murtaza admitted in his cross-examination that only two persons dragged the deceased by holding his arms. Ansar alias Chhotan had been convicted on the ground that he was found possessed of a fire-arm and had placed it in the hand of the deceased after being done to death. For ascertaining whether appellant Ansar alias Chhotan had any active role in the commission of murder of Anis Ahmad. We again closely vetted the evidence on record. There is no evidence on record to the effect that Ansar appellant had either fired any shot or he dragged the deceased. On the point of dragging the statement of Murtaza P. W. 2 is relevant. He had not specifically named any persons who had dragged the deceased. He had only stated that two persons had dragged the deceased hold ing him by arms. Those two persons may be anybody out to five who stood trial before the Sessions Judge. Therefore, on the point of shooting and drag ging the evidence against Ansar alias Chhotan is similar as against those who have been acquitted by the court below. He had only stated that two persons had dragged the deceased hold ing him by arms. Those two persons may be anybody out to five who stood trial before the Sessions Judge. Therefore, on the point of shooting and drag ging the evidence against Ansar alias Chhotan is similar as against those who have been acquitted by the court below. Hence the appellant Ansar alias Chhotan has also to be acquitted of the charge under Section 302/34, I. P. C. on the same ground on which others have been acquitted. 16. Now coming to the charge under Section 25 of the Arms Act, it may be mentioned that the Investigating Officer, Dhanpal Singh Bhati (P. W. 4) has admitted in his statement that the country-made pistol recovered from the hand of the deceased was not in a working condition as its barrel was hanged and could not be fitted with the butt and a cartridge was interlocked in the barrel, which means that it could not cause injury to anybody and was nothing but a scarecrow. Hence on the charge under Section 25 of the Arms Act also his conviction and sentence are to be set aside. 17. Accordingly, the appeal of Wasiq Ahmad appellant fails and is hereby dismissed. , His conviction and sentence s passed by learned Sessions Judge are confirmed. He is on bail. He shall surrender forthwith and be taken into custody to serve out his sentence. 18. The appeal of Ansar alias Chhotan appellant succeeds. His convic tion and sentences under Section 302/34 and 25, Arms Act are set aside and he is acquitted of both the charges. He is on bail and he need not surrender. His bail bonds are cancelled and sureties discharged. Order accordingly. .