JUDGMENT 1. - The appellant has preferred this appeal against the judgment and order dated March 31, 1993 passed by Judge, Special Court, Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Cases, Kota in Sessions Case No. 72/1992 whereby the appellant was convicted under Section 302 IPC and 30 of the Arms Act. Under Section 302 IPC he was sentenced to suffer imprisonment of life and to pay a fine of Rs. 5,000/-. In default of payment of fine, he has to undergo rigorous imprisonment for six months. While under Section 30 of the Arms Act, he was sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/-. In default of payment of fine, to undergo one month's rigorous imprisonment. 2. The unfortunate part of the case is that the appellant is the father of the deceased Gurudeep Singh. The prosecution case in nutshell is that on basis of 'Parcha Bayan' Ex.P/1, crime No. 22/1992 was registered under Section 302 IPC at the Police Station Budhadit, district Kota. The charge against the appellant was that he made a gun fire causing pellet injuries to his son Gurdeep Singh, who succumbed to the injuries sustained by him. From the evidence led by the prosecution at the trial it appears that the appellant had three sons namely Gurdeep Singh, (now deceased), Hardeep Singh and Nirmal Singh. The appellant was having agricultural land of different khasra numbers, in revenue village Morpa, out of which most of the land was distributed amongst his three sons. The deceased Gurdeep Singh was residing separate while his two sons namely Hardeep Singh and Nirmal Singh were living together in a house. The appellant was also living separate from his sons. The appellant had 15 bighas of land in his possession for which he had executed a will in favour of his three sons. On the day of incident, the deceased Gurdeep Singh was sowing sugarcane plants on the land which was of the appellant. This was objected by the appellant. On this point there was some oral altercation between the father and son. The prosecution story further goes that the appellant, thereafter, brought a 12 bore gun from the house and asked his son Gurdeep Singh to kill him by making a gun fire if he wanted to be the owner of the land. This was objected by the appellant. On this point there was some oral altercation between the father and son. The prosecution story further goes that the appellant, thereafter, brought a 12 bore gun from the house and asked his son Gurdeep Singh to kill him by making a gun fire if he wanted to be the owner of the land. Then, it is alleged that the appellant made a gun fire causing pellet injuries on the abdomen of Gurdeep Singh which resulted in his death. Post mortem of his dead body was conducted by PW. 7 Dr. Manu Mathur, who found the following injuries on the dead body : Multiple gone shot wounds with blackening and tatooing and scorching of hairs, wound of seize peanut scattered over left side of abdomen and lower one third of left side of chest covering an area of size 12" x 8" with bleeding from a number of wounds. 3. PW. 16 Ramswaroop made investigation of the case. He prepared site-plan Ex.P/2 of the scene of occurrence. An empty cartridge was recovered from there vide seizure memo Ex.P/5. He also collected blood stained earth and control soil from the place of incident vide memos Ex. P/6 and P7/7 respectively. The weapon of the offence i.e. a 12-bore gun was produced by Nirmal Singh and it was seized vide memo Ex.P/8. The licence of the gun was also seized vide Ex.P/22. After usual investigation, a charge sheet came to be filed against the appellant in the court of Judicial Magistrate No. 2, Kota. The learned Magistrate committed the case to the Sessions Judge, from where it was made over to the court of the Special Judge. 4. At the trial, prosecution examined 16 witnesses. Out of them PW. 1 Smt. Salvinder Kaur and PW. 5 Nand Kishore are eye-witnesses of the occurrence. P.W. 6 Nirmal Singh is brother of the deceased, who reached at the scene of occurrence immediately after the incident. 5. The defence of the accused was that he did not intend to murder his own son Gurdeep Singh and there was a scuffle amongst them which resulted in an accidental fire causing injuries to the deceased. In defence, Dr. Y.K. Sharma was examined a witness. 6. 5. The defence of the accused was that he did not intend to murder his own son Gurdeep Singh and there was a scuffle amongst them which resulted in an accidental fire causing injuries to the deceased. In defence, Dr. Y.K. Sharma was examined a witness. 6. Shri K.K. Mehrish, learned counsel appearing for the appellant, assailing conviction of the appellant has dawn our attention to certain outstanding features of this case, which according to him are sufficient to make the defence version quite probable. In this connection he pointed out following facts and circumstances which are borne out from the record ; (i) that the appellant and the deceased Gurdeep Singh were father and son having no previous enmity or malice; (ii) that on the day of incident, the deceased was growing sugarcane plants on the land which the appellant had kept for himself after distributing his other land amongst his three sons. For this land also he had executed a will in favour of his three sons bequeathing five bighas of land to each one of them. (iii) that the appellant objected sowing of the land by the deceased as he had no right over the same till he was alive and this resulted in oral altercation between them. (iv) that the appellant, thereafter, brought a gun from the house and asked the deceased to take the gun and kill him so that he might become owner of the land on his death. Then a scuffle took place between them. (v) that the medical evidence corroborates defence version and belies the prosecution case and its witnesses that the fire was made from a long distance. 7. Before coming to the facts of the case the principle governing the burden of proof where the accused sets up a plea may be considered. Section 105 of the Evidence Act contains exception to the general rule whereby in a criminal trial, the burden of proving everything necessary to establish the charge against the accused beyond reasonable doubt, rests on the prosecution. According to the section, the burden of proving existence of circumstances bringing the accused within any of the General Exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the Code or any other Law, shall be on the accused person, and the Court shall presume absence of such circumstances. According to the section, the burden of proving existence of circumstances bringing the accused within any of the General Exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the Code or any other Law, shall be on the accused person, and the Court shall presume absence of such circumstances. But this section does not neutralise or shift the general burden that lies on the prosecution to prove beyond reasonable doubt all the ingredients of the offence with which the accused stand charged. Therefore, where the charge about the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention as described in Section 299 of the Penal Code. It is only after the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the plea taken by the accused is sustainable or not, arises. The accused has to rebut the presumption envisaged in Section 105 of the Evidence Act, by bringing on record evidential material before the Court sufficient for a prudent man to believe that the existence of such circumstances is probable. In other words, even under Section 105, the standard of proof required to establish those circumstances is that of a prudent man as laid in Section 3 of the Evidence Act. But within that standard there are degrees of probability, and that is why under Section 105, the nature of burden on an accused person claiming the benefit of an exception, is not as onerous as the general burden of proving the charge beyond reasonable doubt cast on the prosecution. The accused may discharge his burden by establishing a mare balance of probabilities in his favour with regard to the said circumstances. 8. The material before the Court to establish such a preponderance of probability in favour of the defence plea may consist of oral or documentary evidence, admissions appearing in evidence led by the prosecution or elicited from prosecution witnesses in cross-examination, presumptions and the statement of the accused recorded under Section 313 of the Code of Criminal Procedure. 9. Now we deal with the facts of the case in the light of the principles stated above. From the post-mortem report and the statement of Dr Manu Mathur, (PW. 9. Now we deal with the facts of the case in the light of the principles stated above. From the post-mortem report and the statement of Dr Manu Mathur, (PW. 7), who conducted post-mortem examination on the dead body clearly establish that there was blackening and tatooing around the gun shot wounds and there was scorching of hairs also. The doctor has also stated that in his opinion, the fire was made from a distance of 4 to 6 feet. He also admitted in cross examination that if a fire was made from the distance of one ft. or 6" then marks of blackening and scorching will come. He then, stated that in the instant case the gun was not fired in a straight way but it was towards up side. He again admitted that blackening of gun powder and marks of scorching would come on the body of the victim if the gun was fired from a distance near to his body. Dr. Y.K. Sharma (D.W. 1) has stated that blackening and tatooing marks would be caused if the gun is fired from a distance not more than three feet. He further stated that the injuries mentioned in the post mortem report Ex.P/23 could be caused by an accidental fire in the course of scuffle and snatching of the gun. PW. 6 Nirmal Singh, real brother of the deceased, has admitted in his cross examination that when he asked his brother as to how he sustained gun fire injuries, he told that his father asked him to take the gun from him and kill him by making a gun fire and thereafter he could grow sugarcane plants. Upon this, he told to the father that he would not kill him instead he could kill him and there was scuffle and the gun accidentally went on and caused injuries to him. The medical evidence, the statement of PW. 6 Nirmal Singh and the circumstances which culminated in the incident are in consonance with the plea taken by the appellant. The totality of the circumstances, in our opinion, probabilise the defence version of the appellant. 10. The case may be judged from another angle also. As per the statement of PW. 1- Salvinder Kaur the gun fire was made by the appellant from a distance of 15-20 feet. On the other hand, as per the statement of PW. The totality of the circumstances, in our opinion, probabilise the defence version of the appellant. 10. The case may be judged from another angle also. As per the statement of PW. 1- Salvinder Kaur the gun fire was made by the appellant from a distance of 15-20 feet. On the other hand, as per the statement of PW. 5 Nand Kishore, another eye-witness of the case, the gun fire was made from a distance of 10-12 feet. If the gun fire was made from such a long distance, then there was no possibility of blackening and tatooing or scorching of hairs as pointed out by the Medical Officer. The medical evidence, therefore, clearly falsifies the prosecution case and the prosecution eye-witnesses regarding the manner in which the deceased was hit. In Mohinder Singh v. The State ( AIR 1953 SC 415 ) , the Apex Court observed as follows : "In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle." In Ram Narain v. State of Punjab, ( AIR 1975 SC 1727 ) the same principle was reiterated as under "It is obvious that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. While appreciating the evidence of the witnesses,the High Court does not appear to have considered this important aspect but readily accepted the prosecution case without noticing that the evidence of the eye witnesses in the Court was a belated attempt to improve their testimony and bring the same in line with the Doctor's evidence with a view to support an incorrect case." 11. In view of the above discussions, we have no hesitation in holding that the prosecution has failed to prove the guilt of the accused appellant beyond reasonable doubt and the plea of the accused taken in his defence stands probabilised from the materials on record. He, therefore, is entitled to be acquittedConsequently, the appeal is allowed. The conviction and sentence of the appellant under Section 302 IPC and Section 30 of the Arms Act are set aside. He is acquitted of the charges. He is in jail and shall be released forthwith if not wanted in any other case.Appeal allowed. *******