J. Sangma, J.- The appellant, Md. Maskandar Ali, brought this appeal from the judgment dated 5:4.90 passed by Sri D.Biswas, Sessions Judge, Nagaon, in Sessions Case No.41 (N-H)/86 convicting and sentencing him under section 302 IPC to RI for life. There was no sentence of fine. On 23.4.90 this Court granted bail to him. So now he is on bail. 2. The facts of the case are as follows : At 1.30 AM of 15.10.84 PW 2 (Nuruddin) lodged FIR stating that at 10.30 PM of 14.10.84 the appellant and two others - (1) Rakib Ali and (2) Khaliluddin, assaulted him, Samiruddin, Faizuddin and Nazrul Islam on the road at village Islam Nagar and snatched away Rs.5.(KK)/- cash from his pocket. It was also stated that being injured they came to Hojai State Dispensary for medical aid. On this FIR the OC registered Hojai PS Case No. 151/84 under section 325/324/379/34 IPC at 1.10 AM (mid-night) of 15.10.84. In the morning the IO (PW 11) went to Islam Nagar and drew a sketch map of the place of occurrence (hereinafter PO). He seized a trouser, a shin and a torch light by seizure list (Ext 3) from Nuruddin. By another seizure list (Ext 2) he seized a torch having two cells from Nazrul Islam. Both the seizures were made in presence of witnesses. On 15.10.84 he examined witnesses who saw the occurrence or tame to the PO immediately after it. Samiruddin died on 20.10.84 at Nagaon Civil Hospital to which he was shifted in 15.10.84 from Hojai dispensary. The same day, ASI RC Barua prepared inquest report (Ext. 4) and handed over the dead body for autopsy. PW 1, Dr. BC Kakati noted in post mortem report that death of Samiruddin was due to shock and haemorrhage of head injury. So, the IO submitted charge sheet under section 325/323/302/34 IPC against the appellant and three others - (1) Rakib All, (2) Khaliluddin and (3) Akkel All, by showing Akkel as absconder. In the Magistrate's Court it was OR Case No. 1003/84. Judicial Magistrate First Class, Hojai, committed the case to Sessions Court, Nagaon, for trial. 3. It may be mentioned here that earlier to Nuruddin the appellant lodged FIR dated 14.10.84 (Ext 4) for the same incident complaining that Samiruddin, Taizuddin, Nuruddin, Nazrul Islam, Fakaruddin and Abdul Jalil in a body assaulted him and his party causing injuries to them. Judicial Magistrate First Class, Hojai, committed the case to Sessions Court, Nagaon, for trial. 3. It may be mentioned here that earlier to Nuruddin the appellant lodged FIR dated 14.10.84 (Ext 4) for the same incident complaining that Samiruddin, Taizuddin, Nuruddin, Nazrul Islam, Fakaruddin and Abdul Jalil in a body assaulted him and his party causing injuries to them. In that case the IO submitted charge sheet No. 18/85 -dated 19.2.85 under section 147/323 IPC against those persons except Samiruddin who died on 20.10.84. Though it was a cross case, the Magistrate did not commit it to Sessions Court. What happened to-that case is also not known. 4. In the instant case, the learned Sessions Judge splited the case of absconding accused and framed charge against Rakib All, Khaliluddin and appellant - (1) under section 302/34 IPC for combined murder of Samiruddin and (2) under section 323/34 IPC for causing hurts to Nazrul Islam. Jaizuddinn and Nuruddin. They pleaded not guilty to the charge. So. the prosecution examined 11 PWs out of whom PW 7 (Habibur Rahman) was declared hostile. The learned Sessions Judge then recorded the defence statement of the accuseds under section 313 CrPC. Thereafter, the appellant examined one DW for his defence. 5. After hearing the arguments of PP and defence counsel, the learned Sessions Judge found that the eye witnesses (PWs 2,3,4 and 5) have proved that the appellant not being serious it was possible that the appellant has subsequently inflicted those injuries on himself in order to concoct a ease for defence and, therefore, the prosecution has no obligation to explain his injuries. Accordingly, he convicted and sentenced the appellant alone under section 302 IPC for murder of Samiruddin. Separately he convicted and sentenced Rakib Ali and Khaliluddin to RI for one month under section 323/34 IPC for causing hurts to Nazrul Islam and Jaijuddin. He did not record the finding on the alleged snatching of Rs.5,000/- cash from Nuruddin. 6. We are .now concerned only with the case of the appellant Askandar Ali, Mr. JM Choudhury, learned counsel for the appellant has assailed the judgment on two grounds: (1) that the Sessions Judge failed to appreciate the evidence of PWs 2,3,4 and 5 correctly. He did not record the finding on the alleged snatching of Rs.5,000/- cash from Nuruddin. 6. We are .now concerned only with the case of the appellant Askandar Ali, Mr. JM Choudhury, learned counsel for the appellant has assailed the judgment on two grounds: (1) that the Sessions Judge failed to appreciate the evidence of PWs 2,3,4 and 5 correctly. He contended that the evidence of these PWs did not prove that the appellant alone assaulted Samiruddin and submitted that the Sessions Judge was wrong in convicting the appellant under section 302 IPC even assuming, while denying, that the appellant alone assaulted Samiruddin the circumstances clearly showed that he acted in sell defence. He contended that the learned Sessions Judge was wrong in finding that possibly the appellant himself inflicted those injuries on himself in order to concoct a ease for his defence and the prosecution therefore had no obligation to explain appellant's injuries. So. he submitted that this was a ground enough to acquit the appellant from all the charges. In reply, Mrs K. Deka. learned PP. stated that Mr. Choudhury's contention is not correct. She supported the conviction of the appellant on the evidence of the same witnesses (i.e. PWs 2, 3, 4 and 5). 7. There is no dispute that Samiruddin died on 20.10.84 in Nagaon Civil Hospital due to head injury sustained in the occurrence that took place at 10.30 PM of 14.10.84. So, it is not necessary to reappreciate the evidence on this point. We have perused the evidence of the said 4 PWs to see - (1) whether in the occurrence the appellant alone had assaulted Samiruddin, and (2) if the appellant assaulted, whether he did it for self defence. 8. First Point: PW 2 Nuruddin is deceased Samiruddin's younger brother. In the examination-in-chief itself he said: "Six other persons (Jaizuddfn, Nazrul, Fakruddin, Habibur, Mobeswar and I opposed the assault by the accused to protect Samiruddin. I saw Maskandar, Rakib Ali and Khaliluddin assaulting Samiruddin, Nazrul Islam and .Taijuddin. Maskandar Ali gave two lathi blows on the head of Samiruddin who immediately fell down. Then Khalil assaulted Nazrul with lathi. Khalil and Rakib assaulted Jaijuddin with lathis. At Hojai Hospital we were released after first aid but Samiruddin was shifted to Nagaon Civil Hospital on the next day. Maskandar Ali gave two lathi blows on the head of Samiruddin who immediately fell down. Then Khalil assaulted Nazrul with lathi. Khalil and Rakib assaulted Jaijuddin with lathis. At Hojai Hospital we were released after first aid but Samiruddin was shifted to Nagaon Civil Hospital on the next day. He was in unconscious state till he expired." In cross examination he said : "Jaijuddin, Nazrul Islam, Fakaruddin, Habibur, Mobeswar and I opposed the accused persons. Before the police I stated that all the 3 accused assaulted all the 3 injured persons with lathis and talwar. I did not state to police as to which accused hit whom. Maskandar Ali filed across case and in that case Nazrul, L Jaijuddin and I were the accused. The occurrence took place over a quarrel for catching fish. I did not see the injury on Maskandar Ali and Rakib. It is not a fact that marpit triggered between the parties and Samiruddin assaulted the appellant with lathi on his head. But it is a fact, that Maskandar Ali was unarmed". PW 3, Nazrul Islam, is son of the deceased. He alone was present with his father from before the occurrence. He deposed that Maskandar Ali hit his father on the head with lathi. In cross examination he admitted that lie did not tell the police (IO) that accused Maskandar, Rakib and Khaliluddin came armed with lathi. PW 4 Jaijuddin is the younger brother of Samiruddin. He stated that Maskandar gave two hard hitting blows to Samiruddin with lathi on the head. In cross examination he replied that he also was an accused in the case filed by Maskandar Ali for the same incident. PW 5 Fakaruddin stated in examination-in-chief that there was scuffle in which Maskandar gave two hard hitting blows qn Samiruddin's head. In cross examination he replied that the occurrence had a duration of 10 minutes. PW 11 (IO) examined PWs 2, 3,4 and 5 under section 161 CrPC on 15.10.84 itself but he (IO) did not tell in his deposition that at that time PWs 3,4 and 5 had told him that Maskandar alone had assaulted Samiruddin. 9. As the version of PWs 2, 3, 4 and 5 before the IO and at the trial substantially varied on this important point we cannot rely on the evidence of these 4 PWs to sustain the conviction under section 302. 9. As the version of PWs 2, 3, 4 and 5 before the IO and at the trial substantially varied on this important point we cannot rely on the evidence of these 4 PWs to sustain the conviction under section 302. In taking this view we are supported by Division Bench of Delhi High Court in Vimjinder vs. State, 1984 (1) Crimes 237 in which their Lordships, dealing with section 161 and 311 CrPC said: "Where in their testimony the eye witnesses made improvement of grave magnitude from their statement under section 161 CrPC it only shows that they are deeply interested against accused. "So, it is impossible to rely upon evidence of such eye witnesses." We find force in the first point of Mr. Choudhury and, therefore, set aside the conviction under section 302. Now the appellant cannot also be convicted under section 323/34 IPC as in the case of Rakib and Khaliluddin because the said PWs testimony did not show that the appellant in combination with Rakib and Khaliliddin caused hurts to Nazrul Islam and Jaijuddin. 10. Second Point : As we have allowed the appeal on the first point, the decision on second point would be academic. However, we now decide this point also. PW 11, the IO, stated that going to Hojai he gave requisition to doctor for medical examination of the injured who could not speak. In cross examination he said that telephone message from Dr. Ardhendu was received at the PS at 12.30 AM (at night) of 14/15.10.84 and that the message was that there was a fight by two parties and "I gave requisition for examination of the injuries on both parties". PW 9 Dr. Ardhendu said this in cross examination : "I gave information to police that both the parties came at the same time. Police gave requisition for examination of the injured persons. I examined Maskandar AH (of cross case) and found lacerated injuries on the scalp, six 5 cm x deep to skull and another 1.5 cm x deep to scalp. Fresh injury caused by blunt weapon are simple in type. These two injuries were caused by two different blows. Scalp is a vital part of the body. I also examined Rakib Ali on the same day and found lacerated injury on the lower abdomen on right side near umbelicus - size 5 cm x 1.25cm. Fresh injury caused by blunt weapon are simple in type. These two injuries were caused by two different blows. Scalp is a vital part of the body. I also examined Rakib Ali on the same day and found lacerated injury on the lower abdomen on right side near umbelicus - size 5 cm x 1.25cm. Another lacerated injury on the lateral side of left arm - size 1.25 cm x 1.25 cm fresh simple and caused by blunt weapon." Dr. BC Kakati performed the autopsy on the dead body of Samiruddin. He said that injury found by him on the deceased could be caused by a single blow. PW 3, who alone was present with Samiruddin from before and saw the occurrence more fully has frankly admitted in cross examination that there was assaults and counter assaults which culminated into free fight between the parties as a result of which Maskandar Ali and Rakib Ali sustained injuries. 11. In Onkar Nath Singh vs. State of UP, AIR 1976 SC 1550 it was held that: "A right of private defence given by the Penal Code is essentially one of defence or self protection and not a right of reprisal or punishment. It is subject to the restriction indicated in S. 99 which are as. important as the right itself. One of them is the harm inflicted in. self defence must be no more than is legitimately necessary for the purpose of defence. Further, the right is conterminous with the commencement and existence of a reasonable apprehension of danger to body from an attempt or a threat to commit the offence. It avails only against a danger, real, present and imminent.............. The force used shall not be out of all proportion to the supposed danger." 12. In Lakshmi Singh vs. State of Bihar, AIR 1976 SC 2263 it was held thus: "In a murder case the non explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the Court can draw (1)........ (2)...... (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." 13. (2)...... (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." 13. In Jagdish vs. State of Rajasthan, AIR 1979 SC 1010 it was held that: "It is true that where serious injuries are found on the person of the accused as a principle of appreciation of evidence it becomes obligatory on the prosecution to explain the injuries so as to satisfy the Court as to the circumstances under which the occurrence originated; but before this obligation is placed on the prosecution two conditions must be shown that these injuries must have been caused at the time of the occurrence in question." 14. In State of Rajasthan vs. Madho, AIR 1991 SC 1065 it was held that where the injuries sustained by accused persons in same incident in which offences under section 302/326IPC are alleged-to have been committed by them prosecution witnesses failing to explain those injuries and their testimony giving impression that they are suppressing some part of incident - the accused is entitled to benefit of doubt. 15. In Dwarka Prasad vs. State of UP, (1993) Supp (3) SCC 141 it was held that in a case under section 302 the burden to prove exercise of private defence by preponderance of probabilities, lies on the accused. 16. In Debraj vs. State of UP, (1994) Supp (2) SCC 552 it was held that if the accused takes the plea of self defence by saying that he also has sustained injury in the same occurrence it cannot be lightly ignored particularly when the prosecution failed to explain it, and the accused is not required to prove his case beyond reasonable doubt. 17. After seeing the above decisions of the Supreme Court we now say that it an accused who sustained injury, takes the plea of private defence, the burden is on the prosecution to explain beyond reasonable doubt - (1) that he did not sustain injury in the same incident, and (2) that if he sustained injury in the same occurrence the assault given by him in reprisal was out of proportion to the supposed danger. In such a case the burden on the accused to prove his plea, if any, is by preponderance of probabilities, and not beyond reasonable doubt. 18. In such a case the burden on the accused to prove his plea, if any, is by preponderance of probabilities, and not beyond reasonable doubt. 18. Upon reading the evidence of PWs 2, X4 and 5 as a whole, it is clear that a quarrel took place between the party of Sainirucklin and Maskandar Ali over the issue of catching fish. On the side of Samiruddin there were six other persons;, and on the side of Maskandar Ali there were only two others, namely, Rakib Ali, Khaliluddinn. The quarrel was followed by scuffle and free fight for ten minutes in which Samiruddin. Nazrul Islam and Jaijuddin sustained injury one side and Maskandar Ali and Rakib Ali sustained injury on the other. There Is no evidence to show that the appellant and his party received injury after Samiruddin fell down and hurts were caused to Nuruddin and Jaijuddin. In post mortem examination PW 1 (Dr. BC Kafcati) found that injury on Samiruddin could be caused by one single stroke But PW 9 (.Dr. Ardtyendu) stated that he found two injuries on the scalp of appellant which could be caused by two different blows and that scalp was vital part of the body. In view of the clear admission of PW 3 that there was free light in which the appellant and Rakib also sustained injuries, we find that the finding of the learned Sessions Judge that appellant inflicted injuries on himself alter the occurrence to conduct a case for defence, is perverse. So, we hold that when the unarmed appellant sustained two blows on his vital part (scalp) there was reasonable apprehension to his life and therefore his single blow on Samiruddin in reprisal could not be said to be out of proportion, thus there is preponderance of probabilities to show that the appellant acted in exercise of the right of private defence. We, therefore, agree with the contention of Mr. Choudhury that even assuming that the appellant gave one blow on Samiruddin he had done that for self defence. 19. In the result we allow the appeal and set aside the conviction of the appellant and acquit .him from the charges. He is discharged from the bail bond.