JUDGMENT - V.M. KANADE, J.:---The appellants are charged for having committed an offence under sections 302 and 323 read with section 34 of the Indian Penal Code. The Additional Sessions Judge, Bhandara, vide judgment and order dated 6-8-1997 in Sessions Trial No. 39/96, convicted both the accused appellants herein under section 302 read with section 34 of the Indian Penal Code and sentenced them to suffer life imprisonment and to pay a fine of Rs. 500/- each in default R.I. for 9 months. Both the accused (appellants herein) are also convicted under section 323 read with 34 of the Indian Penal Code and sentenced to suffer R.I. for 3 months and to pay a fine of Rs. 200/ in default to suffer R.I. for one month. The appellants, by this appeal, are challenging the said judgment and order passed by the trial Court. The said appeal was admitted on 30-9-1997. During the pendency of the appeal, one of the appellant viz. Surendra Marotrao Yenurkar has filed an application for release on parole through Jail, which was converted into Criminal Writ Petition No. 242/02. The said criminal writ petition was circulated for admission and appeared on the Board for admission. It was pointed out that the criminal appeal filed by the said Surendra Yenurkar was already on the Board and, therefore, the learned Advocate appearing on behalf of the appellant requested that the criminal writ petition may also be heard alongwith the main appeal. 2. FACTS: The appellants herein, the deceased and his family members are close relatives. There were several civil and criminal cases pending between the two families in various courts. Marotrao, Devaji and Mangru were real brothers. Marotrao died in the year 1980 and the appellants Surendra and Mahendra are his sons. Devaji was their uncle who had 4 sons and 2 daughters viz. Jaywanta, Umakant, Dilip, Navin Nischal, Hemlata and Mina. In the present case, Devaji died and it is the case of the prosecution that the appellants herein Surendra and Mahendra were responsible for committing the murder of said Devaji. There was a dispute between Devaji and his wife Subhadra who had filed various cases against her husband including a petition for maintenance which was decreed. There was admittedly a dispute between the appellants and their cousin and uncle and they were on inimical terms with each other. There was a dispute between Devaji and his wife Subhadra who had filed various cases against her husband including a petition for maintenance which was decreed. There was admittedly a dispute between the appellants and their cousin and uncle and they were on inimical terms with each other. It is the case of the prosecution that on 11-12-1995 at about 7.00 a.m., Dilip was going on to the Pan Shop to eat gutka. When he was in the courtyard and after he had crossed a short distance from his house, it is the case of the prosecution that, Mahendra came out of his house with a stick in his hand and accused Surendra caught him and fell him down on the ground and thereafter Mahendra gave stick blows to the deceased. This incident was witnessed by Mina the sister of Dilip who raised hue and cry and as a result Devaji came to rescue Dilip. At that time accused Surendra took out a big stick called as Ubhari from the bullock cart which was parked near the house and both the accused assaulted Devaji who was 65 years old and as a result of the assault he fell down and he died on the spot. It is alleged that another son of Devaji viz. Navin Nischal also witnessed the said incident from his house. A complaint was lodged by Mina who alleged in the complaint that she had also received injuries. She was sent to the Hospital for examination and Investigating Officer prepared the spot panchanama and recorded the statement of all the witnesses and registered an offence under Crime No. 428/95 and further investigation was carried by Subhash Panse the Police Inspector, Bhandara. Finally, the charge-sheet was filed. The trial Court framed charge under sections 302 and 323 read with section 34 of the Indian Penal Code. The accused pleaded not guilty to the said charge. The trial Court, on the basis of the evidence of the eye-witness and other evidence adduced by the prosecution, convicted both the accused under sections 302 and 323 read with section 34 of the Indian Penal Code and sentenced them to suffer R.I. for life. 3. We have heard the learned Counsel for the appellants and learned A.P.P. appearing on behalf of the State. 3. We have heard the learned Counsel for the appellants and learned A.P.P. appearing on behalf of the State. The learned Counsel for the appellant has taken us through the depositions of various witnesses and also the other evidence adduced by the prosecution so also the judgment and order of the trial Court. The learned Counsel appearing on behalf of the appellants/accused submitted that the accused had raised the defence of private defence and had filed a written statement in the trial Court. In the statement under section 313 of Cri.P.C. the appellants had also stated that Dilip and deceased Devaji both had attacked the appellant Surendra with a knife and stick and that Surendra had received injuries on his person as a result of the said attack and that he had, in private defence, taken out a big stick (Ubhari) from the bullock cart and when he was moving the stick in the air in self defence, the said stick accidently hit Devaji as a result of which he died. He, therefore, submitted that so far as Mahendra appellant No. 2 is concerned, his name has been falsely implicated and that he was never at the scene of offence at any time. He submitted that the cross case was lodged against Dilip for having assaulted Surendra which was pending in the trial Court and charge-sheet was filed against Dilip. He submitted that, in the event, this Court came to the conclusion that Surendra-appellant No. 1 had exceeded in his right of private defence, his case at the most would fall under section 304-I or II of the Indian Penal Code. 4. He also submitted that the blows on the head of the deceased were on the right side of his head which indicated that only one person had assaulted him. He submitted that, therefore, the appellant No. 2 was entitled to be released on benefit of doubt. He further submitted that there is discrepancy in the evidence of eye-witnesses examined by the prosecution. The learned A.P.P. appearing on behalf of the State vehemently opposed the submission made by the learned Advocate of the accused. He submitted that there were 3 eye-witnesses viz. P.W. 1 Mina, P.W. 2 Navin Nischal and P.W. 4 Kawadu Bankar who were the eye-witnesses in the incident, their testimony has not been shaken in the cross-examination. The learned A.P.P. appearing on behalf of the State vehemently opposed the submission made by the learned Advocate of the accused. He submitted that there were 3 eye-witnesses viz. P.W. 1 Mina, P.W. 2 Navin Nischal and P.W. 4 Kawadu Bankar who were the eye-witnesses in the incident, their testimony has not been shaken in the cross-examination. He submitted that the initial burden of proving the fact that the appellant acted in private defence was on the accused and that they did not discharge the said burden. He submitted that therefore, the trial Court has rightly convicted the appellants and the said findings and conviction may be confirmed. 5. We have perused oral as well as documentary evidence on record. The prosecution has examined in all 10 witnesses, out of which P.W. 1 Minabai, P.W. 2 Navin Nischal, P.W. 3 Dilip and P.W. 4 Kawadu are the eye-witnesses. P.W. 5 Govindlal is examined as a panch who has proved the various panchanamas Exh. 36, 37, 38, 39, 40, 41, 42, 43 and 44. All these panchanamas have been admitted by the prosecution. P.W. 6 Liyakat is the Police Head Constable who has recorded the statement of Minabai in the Station Diary Register. P.W. 7 Nilkanth who is the Head Constable recorded the report of Mina at Exh. 29, P.W. 8 is the Doctor who performed the post mortem has given his opinion that the injuries which were found on the head of the deceased, were sufficient in the ordinary course of nature to cause death and he has further given his opinion that the said injuries could be caused by Ubhari and stick which were shown to him. P.W. 9 Subhash is the Investigating Officer who has conducted the investigation. 6. In the present case the accused/appellants have come out boldly with the case of private defence. They have filed written statement in which they have given details of the cases which are pending in the Civil Courts between the appellants and deceased and others. In the written statement, the appellants have submitted that the deceased Devaji was a adamant person. He submitted that though he succeeded in 3 suits, the opponents had never complied with the orders passed by the Civil Courts. It was further submitted that the huge amount was due to be paid to Subhadra wife of Devidas towards the maintenance. In the written statement, the appellants have submitted that the deceased Devaji was a adamant person. He submitted that though he succeeded in 3 suits, the opponents had never complied with the orders passed by the Civil Courts. It was further submitted that the huge amount was due to be paid to Subhadra wife of Devidas towards the maintenance. It was submitted that Devaji had an axe to grind against the present appellant as he felt that he had instigated Subhadra against him. The appellant in the written statement submitted that deceased Devaji and Dilip had come to the stable where the appellant Surendra was working and Dilip attacked him with knife and Devaji attacked him with Ubhari and he received injuries as a result of the said assault and, therefore, in defence Surendra took out a big Ubhari from the bullock cart which was parked near his house and paved it in the air and in his defence attacked deceased Devaji and Dilip and as a result of which the said Ubhari might have landed on the head of the deceased. It was, therefore, submitted that the appellant Surendra had acted in the said defence. It is also a case of the appellants that so far as appellant No. 2 Mahendra is concerned, he was not present at the scene of offence and that his name has been implicated by the opponent. 7. The legal position in respect of private defence is well settled. In respect of the right of private defence being raised by the accused, it is well settled that if such defence is raised by the accused, the preliminary responsibility and burden to prove it, is on the accused and only when the accused discharged the said initial burden that circumstance did exist which justified their action on the ground of private defence, only then the burden will shift on the prosecution. Chapter IV of the Indian Penal Code deals with the general exceptions in respect of the acts done by a accused which fall within the exception of general rules. A right of private defence is also one of the general exceptions and sections 96 to 106 lay down various circumstances under which the right of private defence could be exercised. Chapter IV of the Indian Penal Code deals with the general exceptions in respect of the acts done by a accused which fall within the exception of general rules. A right of private defence is also one of the general exceptions and sections 96 to 106 lay down various circumstances under which the right of private defence could be exercised. Section 96 of the Indian Penal Code states that nothing is an offence which is done in the exercise of the right of private defence and section 100 lays down as to when the right of private defence of the body extends to causing death. 8. Section 101 of the Indian Evidence Act deals with the burden of proof. Section 101 reads as follows : "Burden of proof.---Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." Similarly, section 105 of the Indian Evidence Act specifically deals with the burden of proving the fact that the case of the accused comes within exceptions. Section 105 of the Indian Evidence Act reads as follows : "105 Burden of proving that case of accused comes within exceptions.---When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 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. It is, therefore, well settled by the catena of cases of the Apex Court and this Court that when a right of private defence is set up by the accused, he has to prove the existence of the circumstances so as to bring his case within any exception or proviso contained within any of the General Exceptions in the Indian Penal Code. It is no doubt true that it is open for the accused to rely on the evidence adduced by the prosecution in order to prove the circumstances existed, on the basis of the prosecution case itself were sufficient to draw an inference that the accused had acted in private defence and under the circumstances it would not be necessary for the accused to lead any separate evidence. In the instant case, unfortunately the accused has not discharged the initial burden which is cast by the law by section 105 of the Indian Evidence Act nor he has been able to prove the same on the basis of prosecution evidence on record and, therefore, we are unable to accept the submission made by the learned Counsel appearing on behalf of the accused that the appellant Surendra had acted in self defence. The accused have totally came out with a different story of assault and have not been able to shake or discredit the prosecution version of assault. In our opinion, the prosecution version of assault has been duly established through the testimony of P.W. 1 to P.W. 3. 10. P.W. 1 Minabai in her evidence, has stated that her brother Dilip had gone towards the pan shop and at that time accused Surendra caught hold of his brother Dilip and accused Mahendra started beating him with stick and thereafter when her father rushed to rescue his son, both the accused started beating their father Devaji with Ubhari and they continued to beat her father on his head, back and shoulder. She has further stated that thereafter she fell down on her father and the accused beat her by means of Ubhari and stick and she received injury on her fingers and shoulders. She has identified the weapon Ubhari (article No. 12) which was used by accused Surendra and the stick article 11 which was used by accused Mahendra, so also identified dhoti (article No. 1), baniyan (article No. 2) and Langot (article No. 3) which were the clothes on the person of her father. She was further stated that the house of the accused was adjoining to her house and that Govinda Waghmare, Bankar and others were the persons who witnessed the incident. She was further stated that the house of the accused was adjoining to her house and that Govinda Waghmare, Bankar and others were the persons who witnessed the incident. P.W. 2 Navin Nischal has also given same evidence in which he has stated that both the accused initially assaulted Dilip and that when their father intervened, both the accused assaulted their father on various parts of the body which is on head, back, shoulder and legs. He has also stated that after the accused had started beating his father, Kawadu Chindu Bankar took him in the house of one Raut for offering him water. He has further stated that when accused were beating his father, his sister Mina had obstructed them and that accused beat her by stick and caused injuries to her. He has also stated that after beating his father, accused Mahendra rushed towards him for beating him. However, he ran away to the Police Station. He has stated that many persons had witnessed the incident and the accused had threatened them not to give evidence against them otherwise they will be killed. He has further identified Ubhari which was possessed by accused Surendra and the stick possessed by accused Mahendra being articles 12 and 11 which were shown to him. He has also identified the report which he has given in the Police Station at Exh. 31 and 32. In his cross-examination, however, this witness has stated that his sister Minabai was not present at the site of the incident when the accused assaulted her father. P.W. 2 Navin Nischal has given this admission during his cross-examination by the Advocate appearing on behalf of the accused. It is pertinent to note that however in the cross-examination made by the Advocate appearing on behalf of the accused No. 1 there is no challenge whatsoever to the presence of Mina P.W. 1. In fact, the presence of P.W. 1 Mina at the place of incident was never disputed by the accused and on the contrary it was only suggested to her that she came to the spot during the course of the incident. However, the evidence has not been shaken in cross-examination. Blood was found on shirt Exh. 7. Gamcha Exh. 9 of C.A. report which are of accused Surendra and blood was also found on the full shirt Exh. 11 of C.A. report which is of accused Mahendra. However, the evidence has not been shaken in cross-examination. Blood was found on shirt Exh. 7. Gamcha Exh. 9 of C.A. report which are of accused Surendra and blood was also found on the full shirt Exh. 11 of C.A. report which is of accused Mahendra. The accused have not given any explanation regarding the same. P.W. 3 Dilip was also injured in the said assault as corroborated by the evidence of P.W. 2 Navin Nischal. He has stated in his evidence that both the accused were assaulting his father Devaji by means of a stick and Ubhari. He has stated that the incident in question happened at about 7.00 a.m. on 11-12-1995. He has stated that he was going towards the Pan Shop for eating gutka and on the way in front of the house of the accused at a very short distance, accused Mahendra beat him with stick and at that time accused Surendra had caught him. Thereafter, accused Surendra fell him down and accused Mahendra beat him on his head. He has stated that the colour of the stick which was in the hand of accused Mahendra was red and blue. He has identified the stick article 11 which was shown to him and has stated that this stick was in the hand of accused Mahendra. He has further stated that accused beat him due to land dispute which was going on between them. He has also stated that accused Surendra and his servant Khushal had beat him in the year 1995 and similarly in the year 1988 accused Surendra, Maroti Yenurkar, Mahadeo Kalambe, Shrilal Bhongade, Narendra Bhure, Ramchandra Bhure and others had beaten him. The evidence of these eye-witnesses is further corroborated by the evidence of P.W. 4 Kawadu Bankar who has stated in his examination-in-chief that both the accused were beating Devaji till he died and that Devaji had received injuries on his head, back and shoulder. They were bleeding injuries. Moreover, it has to be noted that these eye-witnesses have identified the weapons used by the accused and these weapons were having blood stains which has been proved by the Chemical Analyser's Report. The evidence of these eye-witnesses, in our view, is sufficient to hold that both the accused had assaulted the deceased on the vital parts of the body, as a result of which, he succumbed to the injuries and died. The evidence of these eye-witnesses, in our view, is sufficient to hold that both the accused had assaulted the deceased on the vital parts of the body, as a result of which, he succumbed to the injuries and died. P.W. 8 Dr. Vijay has stated in his evidence that he noticed as many as 8 injuries on the person of the deceased which are as follows : 1. Lacerated wound 7" x 2", 1" depth on right parital region of head. 2. Lacerated wound 2" x 1" skin deep, right parital region 1" posterior to injury No. 1. 3. Lacerated wound 1 cm. x 1 ½ cm. Triangular on right pinna of right ear opposite tragus. 4. Lacerated wound 2 ½" x 1" x ½" on mastoid. 5. Lacerated wound 2" x ½" right side of forehead extending right laterally to occipital region. 6. Abrasion on right shoulder. 7. Abrasion on back 6 x ½" left side infra scapular region. 8. Abrasion on back 4" x ½" left side 2" below injury No. 7. He also noticed that there was a fracture on the right frontal, parital temporal, multiple depressed compound fracture. He also noticed the following injuries as shown in Column No. 19. 1. Brain tissues and meninges herniating from fracture frontal region. 2. Fracture occipital, transverse, depressed and compound. On brain three heamatoms were noted. i) 5" x 4" ii) 3" x 2" iii) 1" x ½". Dr. Vijay has given his opinion about the cause of death being due to neurogenic shock due to head injuries. He has also given his opinion that weapons articles 11 and 12 viz. Ubhari and sticks which were shown to him, were sufficient in the ordinary course of nature to cause death. 11. It was submitted by the learned Counsel appearing on behalf of the accused that though an application was made in the trial Court for production of the injuries certificate for proving the injuries which were caused on the person of appellant Surendra, and though the order was passed by the trial Court directing the Investigating Officer to produce the injuries certificate, yet the said injury certificate was not produced on record. He, therefore, submitted that this fact, therefore, established that the accused Surendra had suffered injuries on his person. He, therefore, submitted that this fact, therefore, established that the accused Surendra had suffered injuries on his person. He submitted that the prosecution also had failed to produce the knife and the stick which were used by Dilip and Devaji. He submitted that the charge-sheet was filed against Dilip and Devaji for having committed an offence under section 324 of the Indian Penal Code. The defence version of injuries on the person of the accused has not been accepted by the prosecution witness. It is not the prosecution case that the accused received injuries in the course of the incident and as such prosecution is not required to explain the injuries, if any, on the accused. It was for the accused to prove the same. We are unable to accept the submissions made by the learned Counsel appearing on behalf of the accused for the simple reason that it was open for the defence to obtain the order from the Court and ensure that the said injury certificate be brought on record and similarly the defence could have brought on record the certified copy of the charge-sheet which was filed against Dilip and Devaji. However, the defence has failed to produce the said relevant record in the trial Court, as a result of which, no inference can be drawn and it cannot be said to have proved that appellant Surendra had suffered injuries on his person. The learned Counsel appearing on behalf of the appellant relied upon the judgment of the Apex Court in the case of (Ramaotar v. State of M.P.)1, reported in 1993 Supreme Court Cases (Cri.) 745. He submitted that in the said case the wife of the deceased had intervened when he was assaulted by the accused and that she had suffered injuries. He submitted that in the said case the Apex Court held that the conviction of the appellant in the said case should be altered from section 302 of the Indian Penal Code to 304-II of the Indian Penal Code. We have perused the judgment of the Apex Court and we are of the view that the ratio of the said judgment would not be applicable to the facts of the present case. In the result, we find that there is no merit in the said appeal and therefore, the said appeal is dismissed. 12. We have perused the judgment of the Apex Court and we are of the view that the ratio of the said judgment would not be applicable to the facts of the present case. In the result, we find that there is no merit in the said appeal and therefore, the said appeal is dismissed. 12. The Criminal Writ Petition No. 242/02 filed by Surendra Marotrao Yenorkar appellant No. 1 herein seeking writ directing the prison authorities to release him on parole, in view of the dismissal of the main criminal appeal, would not be maintainable. Since, the main appeal is rejected, it is open for the petitioner to move the competent jail authority for parole. As this writ petition was kept for hearing alongwith the main appeal at the request of the Counsel appearing on behalf of the petitioner/accused and since the main appeal is dismissed, this criminal writ petition does not survive and is disposed of accordingly. Appeal dismissed. -----