U. S. TRIPATHI, J. This appeal has been directed against the judgment and order dated 10-6-1983 passed by 9th Additional Sessions Judge, Moradabad in Sessions Trial No. 570 of 1981 convicting appellant Mahesh under Section 302 I. P. C. and sentencing him to imprisonment for life and convicting appellants Ram Swarup, Harpal and Prahlad under Section 302 read with Sections 34, I. P. C. and 323 read with Section 34, I. P. C. and sentencing each of them to imprisonment for life under Section 302 read with 34, I. P. C. and to undergo R. I. for a period of one year under Section 323 read with Section 34, I. P. C. Both the sentences were ordered to run concurrently. 2. The prosecution story, briefly stated, was as under: Appellant Ram Swarup and Koka, father of appellant Prahlad were real brothers and appellant Harpal was nephew (fathers sisters sons son) and appellant Mahesh was grand-son of appellant Ram Swarup. Sheo Lal (P. W. 1), Sheo Nath Singh deceased and Dharam Singh were real brothers while Hari Om (P. W. 4) was son of Dharam Singh. Smt. Ramkali was wife of Dharam Singh. All the appellants and prosecution witnesses and deceased were residents of same village. 3. On the afternoon of 10-4-1981 at about 3. 00 p. m. Sheo Lal (P. W. 1), his brothers Dharam Singh and Sheo Nath deceased and nephew Hari Om (P. W. 4) were inside their house. They heard alarm outside their house and came out of their house. They saw that appellant Ram Swarup had caught hold hands of Smt. Ram Kali at Rahat (Persian wheel) of Koka and was saying that she was defaming his daughter Km. Mukhtiyari, Sheo Lal (P. W. 1) asked him to leave hands of his sister-in-law and told what was the matter. In the meantime appellants Harpal, Mahesh and Prahlad rushed there from northern side. Mahesh was having knife while others were having lathis. Ram Swarup was also having lathi. The appellants having lathis started causing injuries on Sheo Lal (P. W. 1) and others due to which Sheo Lal (P. W. 1) sustained injuries. On their alarm Babu Lal (P. W. 2), Mannu Singh (P. W. 3), Mool Chandra, Khem Singh, Onkar and Mohan came to the spot. Observing Marpeet, Sheo Nath deceased ran towards his pathwara (place of preparing cow dung cakes) towards south. On their alarm Babu Lal (P. W. 2), Mannu Singh (P. W. 3), Mool Chandra, Khem Singh, Onkar and Mohan came to the spot. Observing Marpeet, Sheo Nath deceased ran towards his pathwara (place of preparing cow dung cakes) towards south. The appellants chased him and Harpal and Prahlad caught him hold near pathwara and appellant Mahesh inflicted knife blows on him. Sheo Nath fell down and succumbed to his injuries. Sheo Lal (P. W. 1) and others apprehended Ram Swarup and other appellants ran away. Koka Singh, elder brother of Ram Swarup appellant came their and tried to rescue Ram Swarup but Sheo Lal (P. W. 1) and others made him run away by causing injuries. 4. Sheo Lal (P. W. 1) prepared report (Ext. Ka-1) on the spot and went to police outpost Dhanaura Mandi P. S. Bachhrau alongwith Ram Swarup appellant and injured Dharam Singh, Hari Om (P. W. 4) Onkar and Murari where he lodged report at 4. 30 p. m. 5. The Chik R. I. R. (Ext. Ka-14) was prepared by Head Constable Radhey Shyam (P. W. 9) who made an endorsement of the same at G. D. report (Ext. Ka-15) and registered a case against the appellants under Section 302 I. P. C. Appellant Ram Swarup was taken into custody and injured Sheo Lal (P. W. 1) Dharam Singh and Hari Om (P. W. 4) were sent to Upgraded Hospital Dharaura for medical examination where they were medically examined by Dr. L. M. Upadhyaya (P. W. 7) who prepared injury reports (Ext. Ka-10 to Ka-12 ). 6. Investigation of the case was taken up by Sub-Inspector Kashi Ram Pundeer (P. W. 6) who reached the spot alongwith police force at 5. 30 p. m. Dead body of Sheo Nath deceased was lying near his Pathwara. The I. O. conducted inquest of the dead body and sent the same for post mortem. He prepared inquest report (Ext. Ka-3) and other relevant papers. He also took into possession blood stained and simple earth from the spot and prepared recovery memo (Ext. Ka 8 ). The I. O. interrogated Babu (P. W. 2) Munnu Singh (P. W. 3) and others. He inspected place of occurrence and prepared site plan (Ext. Ka-9 ). On 11-4-1981 the I. O. interrogated Sheo Lal (P. W. 1) Hari Om (P. W. 4) and Dharam Singh at Dharaura Hospital. 7. Ka 8 ). The I. O. interrogated Babu (P. W. 2) Munnu Singh (P. W. 3) and others. He inspected place of occurrence and prepared site plan (Ext. Ka-9 ). On 11-4-1981 the I. O. interrogated Sheo Lal (P. W. 1) Hari Om (P. W. 4) and Dharam Singh at Dharaura Hospital. 7. Autopsy on the dead body of Sheo Nath deceased was conducted on 11-4-1981 by Dr. Lalit Kumar Anand (P. W. 8) who found incised wound on front of chest and abrasion on right and left elbow joint and cause of death due to shock and haemorrhage. He prepared post mortem report (Ext. Ka-13 ). 8. The I. O. apprehended appellant Harpal on 15-4-1981. The remaining investigation was done by Sri Bhuwan Chandra Awasthi (P. W. 5) who submitted charge sheet (Ext. Ka-2) against appellants Ram Swarup, Harpal and Mahesh. Appellant Prahlad was absconding and separate charge sheet (Ext. Ka-16) was submitted against him by Narendra Kumar Sharma (P. W. 11 ). 9. Congnizance of the case was taken by the Magistrate who committed the case to the Court of Sessions. 10. The learned Sessions Judge charged appellant Mahesh with the offence punishable under Sections 302 and 323/34 and appellants Ram Swarup, Harpal and Prahlad under Section 302 read with Sections 34, I. P. C. and 323 read with Section 34, I. P. C. 11. The appellants pleaded not guilty and their defence was that on the date of occurrence i. e. 10-4- 1981 at about 3. 00 p. m. Hari Om (P. W. 4) caught hold Km. Mukhtiyari aged about 14-15 years, daughter of appellant Ram Swarup, in her Gher (place bounded by walls or fences) in order to commit rape on her and laid her on the ground. On her alarm Ram Swarup, Koka and Khachedu Singh reached there. Koka was having Daranti (a type of sickle) and others were having lathis. They caught hold Hari Om causing injuries on him. On his alarm Sheo Lal (P. W. 1), Sheo Nath and Dharam Singh came there armed with lathis. They started causing injuries on Ram Swarup and others. Koka Singh, Ram Swarup and Khachedu defended themselves by their respective weapons due to which Sheo Lal (P. W. 1), Sheo Nath and Hari Om sustained injuries. Koka and Ram Swarup went to outpost Dharaura Mandi to lodge report. Sheo Lal (P. W. 1) was present there. They started causing injuries on Ram Swarup and others. Koka Singh, Ram Swarup and Khachedu defended themselves by their respective weapons due to which Sheo Lal (P. W. 1), Sheo Nath and Hari Om sustained injuries. Koka and Ram Swarup went to outpost Dharaura Mandi to lodge report. Sheo Lal (P. W. 1) was present there. The police stopped Ram Swarup and returned Koka Singh saying that action would be taken. On 12-4-1981 Dalpat Singh son-in-law of Ram Swarup came to meet Ram Swarup and came to know that report of Ram Swarup was not written. Then he got Koka, and Khachedu medically examined and lodged report at P. S. Civil Lines, Moradabad on 13-4-1981 at 7. 00 p. m. Cross case was registered on his report and Sheo Lal (P. W. 1) and others were challaned. 12. The prosecution in support of its case examined Sheo Lal (P. W. 1), Babu (P. W. 2), Munnu (P. W. 3) and Hari Om (P. W. 4) as witnesses of fact besides Bhuwan Chand Awasthi 2nd I. O. (P. W. 5), Kashi Ram Pundeer 1st I. O. (P. W. 6), Dr. L. M. Upadhyaya (P. W. 7), Dr. Lalit Kumar Ananad (P. W. 8), Head Constable Vidya Ram (P. W. 10) and Narendra Kumar 3rd I. O. (P. W. 11 ). 13. The appellants examined Constable Ram Swarup (D. W. 1), Dalpat Singh (D. W. 2), Dr. B. C. S. Yadav (D. W. 3) and Khechedu Singh (D. W. 4 ). 14. The learned Sessions Judge on considering evidence of the parties held that prosecution has established the guilt of appellant Mahesh for the offence punishable under Section 302, I. P. C. and that of appellants Ram Swarup, Harpal and Prahlad for the offences punishable under Section 302 read with Section 34 I. P. C. and under Section 323, I. P. C. read with Section 34, I. P. C. , the case under Section 323 I. P. C. against Mahesh was not proved, the defence version was falsified by the attending circumstances and plea of alibi set up by Prahlad was also false. With these findings he convicted and sentenced the appellants as mentioned above. 15. Aggrieved with their above conviction and sentence the appellants have preferred this appeal. 16. With these findings he convicted and sentenced the appellants as mentioned above. 15. Aggrieved with their above conviction and sentence the appellants have preferred this appeal. 16. We have heard Sri M. Islam holding brief of Sri A. M. Zaidi learned counsel for the appellants and learned A. G. A. for the respondent and have perused the evidence on record. 17. The appellants have admitted marpeet and injuries of Sheo Lal (P. W. 1), Hari Om (P. W. 4) and Sheo Nath deceased. They have also not disputed the death of Sheo Nath on account of above injuries. 18. Dr. Lalit Kumar Ananad (P. W. 8) who conducted autopsy on the dead body of Sheo Nath deceased stated that there were following ante mortem injuries on the person of deceased: (1) Incised wound 2. 5 cm x 1 cm x 12 cm deep (deep into the right thoracic cavity) oblique, clean cut, everted margins on right side of front of chest, 4 cm away from right nipple at 8 Oclock position. (2) Abrasion 2 cm x 0. 3 cm vertical on the back of right fore-arm 8 cm below right elbow joint. (3) Abrasion 2 cm x 1. 5 cm vertical on the outer surface of left fore-arm 6 cm below left elbow joint. 19. He further stated that internal examination showed that pleura was cut under the chest. Right lung was cut under the injury 2 cm x 1 cm x 4 cm deep clean cut margin oblique everted. 3 ounce blood was present at the base of right thoracic cavity. The cause of death was haemorrhage and shock due to injury on right lung. 20. Dr. L. M. Upadhyaya (P. W. 7) stated that he examined injuries of Dharam Singh, Sheo Lal (P. W. 1) and Hari Om (P. W. 4) on 10-4-1981 between 5. 00 p. m. and 6. 00 p. m. and found following injuries on their person: 1. Injuries of Dharam Singh (1) Lacerated wound 8 cm x 1. 5 cm x bone exposed 10 cm above right ear lying obliquely. Margins oozing. (2) Lacerated wound 6 cm x 2. 5 cm x 1. 5 cm deep (bone deep) 4 cm above left eyebrow on left side forehead. Margins oozing. (3) Lacerated wound 8 cm x 1 cm x bone exposed on top of skull in mid line. 5 cm x bone exposed 10 cm above right ear lying obliquely. Margins oozing. (2) Lacerated wound 6 cm x 2. 5 cm x 1. 5 cm deep (bone deep) 4 cm above left eyebrow on left side forehead. Margins oozing. (3) Lacerated wound 8 cm x 1 cm x bone exposed on top of skull in mid line. (4) Lacerated wound 6 cm x 1 cm scalp deep on left side of top of skull 8 cm above from left ear. (5) Contusion 6 cm x 6 cm on the inferior angle of left scapula (back of left chest ). (6) Abrasion 2 cm x 0. 25 cm on middle of lateral aspect of left thigh. (7) Lacerated wound 1 cm x 0. 5 cm x skin deep on dorasal aspect of metacarp-phalyngeal joint of left index finger. (8) Injuries 1, 2, 3, 4 and 5 kept under observation advised X-ray of skull and chest. Rest injuries simple. Duration of all injuries was fresh. Injuries 1, 3, 4, 5, 6 and 7 caused by blunt object No. 2 by bluntly pointed rough edged and piercing object. Patient admitted. 2. Injuries of Sheo Lal (P. W. 1) (1) Contusion 10 cm x 10 cm on the dorsum of left hand lateral part. Advised X-ray of left hand and wrist joint. (2) Lacerated wound 8 cm x 0. 5 cm x scalp deep on top of skull lying almost in mid line 6 cm from hairline. Advised X-ray of skull. Both injuries were kept under observation. Fresh in duration and caused by blunt and hard object. 3. Injuries of Hari Om (P. W. 4) (1) Contusion 4 cm x 4 cm with defused swelling around it on the upper 1/3rd lateral aspect of right upper arm. (2) Abrasion 3 cm x 1 cm on posterior aspect of middle 1/3rd of right forearm. (3) Lacerated wound 3 cm x 1. 5 cm x muscle deep in the crease of left index finger and left thumb. (4) Contusion 7 cm x 6 cm on posterior aspect of upper 1/3 of left leg. All injuries were simple in nature, caused by blunt and hard object and fresh in duration. 21. From the above medical evidence it is, established that the above injured sustained injuries in the incidence and Sheo Nath deceased died on account of above injuries. 22. All injuries were simple in nature, caused by blunt and hard object and fresh in duration. 21. From the above medical evidence it is, established that the above injured sustained injuries in the incidence and Sheo Nath deceased died on account of above injuries. 22. The date and time of occurrence are also admitted to the appellants. Both the parties admitted that occurrence took place on 10-4-1981 at about 3. 00 p. m. 23. The appellants have also admitted marpeet but their contention was that occurrence initiated when Hari Om (P. W. 4) caught hold Km. Mukhtiyari, daughter of Ram Swarup appellant and attempted to commit rape on her and Ram Swarup his brother Koka and Khachedu caused injuries to Sheo Nath deceased and other injured in the exercise of right of private defence. It is, therefore, to be considered whether the occurrence originated as alleged by the prosecution or as contended by the appellants and appellants acted in the exercise of right of private defence. 24. Before adverting to the above question and contentions raised by learned counsel for the parties we would like to give the gist of ocular evidence adduced by the parties. 25. Sheo Lal (P. W. 1) real brother of Sheo Nath deceased and informant stated that on the date of occurrence at about 3. 00 p. m. he was in his house. His brothers Dharam Singh and Sheo Nath Singh and nephew Hari Om were also with him. Hearing alarm he alongwith his brothers and nephew came out of the house and saw that Ram Swarup Singh had caught hold hands of his sister-in-law Smt. Ram Kali (wife of Dharam Singh) near the Rahat of Koka and was asking her as to why she spread rumour against his daughter. He asked Ram Swarup to leave her hands and tell him what was the matter. In the meantime Harpal Mahesh and Prahlad appellants came from northern side. Mahesh was having knife and others were having lathis, Ram Swarup was also having lathi. All the appellants started causing injuries on him and his brothers and nephew. On their alarm Babu (P. W. 2), Munnu Singh (P. W. 3), Mool Chand, Khem Singh, Murari and Onkar came there. Sheo Nath Singh ran towards Pathwara to save his life. Harpal and Prahlad chased and caught him hold near Pathwara and Mahesh inflicted knife blows on him. On their alarm Babu (P. W. 2), Munnu Singh (P. W. 3), Mool Chand, Khem Singh, Murari and Onkar came there. Sheo Nath Singh ran towards Pathwara to save his life. Harpal and Prahlad chased and caught him hold near Pathwara and Mahesh inflicted knife blows on him. He and his brother and nephew also rushed and apprehended Ram Swarup. Rest of the appellants ran away. Koka, elder brother of Ram Swarup came and tried to rescue him but he was chased away causing injuries. He prepared report of occurrence and went to police outpost Dharaura alongwith injured and Ram Swarup and lodged report at 4. 30 p. m. 26. Babu (P. W. 2) stated he had his tube well near Pathwara of Sheo Lal (P. W. 1) on the date of occurrence at about 3. 00 p. m. he was operating engine of his tube well and was irrigating his field. He saw marpeet from his tube well. Ram Swarup, Harpal, Prahlad and Mahesh were causing injuries to Sheo Lal, Dharam Singh, Hari Om and Sheo Nath. Mahesh was having knife and other were having lathis. Munnu Singh (P. W. 3) and Ram Kali were also there. Ram Swarup asked Ram Kali as to why she was spreading rumour against his daughter. Dharam Singh Sheo Lal asked him to leave her hand and tell them what was the matter. The appellants started causing injuries to Sheo Lal and others. Sheo Nath Singh ran towards his Pathwara Ram Swarup Prahlad Mahesh and Harpal chased him saying that he should be killed. Harpal and Prahlad caught hold Sheo Nath at his Pathwara. Mahesh inflicted knife blows on Sheo Nath due to which he fell down and died. Prahlad, Mahesh and Harpal ran away. Ram Swarup was apprehended. Koka came to rescue Ram Swarup. He also sustained injuries and then ran away. 27. Munnu Singh (P. W. 3) stated that on the date of occurrence at about 3. 00 p. m. he was going to his field. Ram Swarup had caught hold hand of Smt. Basanti in between Baithak and Rahat of Koka and was saying that she was spreading rumour against his daughter. Basanti was wife of Dharam Singh, Dharama (Dharam Singh), Sheo Nath, Sheo Lal and Hari Om were also there. In the meantime Prahlad, Harpal and Mahesh came there from northern side and started marpeet. Basanti was wife of Dharam Singh, Dharama (Dharam Singh), Sheo Nath, Sheo Lal and Hari Om were also there. In the meantime Prahlad, Harpal and Mahesh came there from northern side and started marpeet. Mahesh was having knife and others were having lathis. Dharam Singh Sheo Lal and Hari Om sustained injuries. Due to fear Sheo Nath ran towards south, towards his Pathwara. Prahlad, Harpal, Ram Swarup and Mahesh chased him saying that he should be killed. Prahlad and Sheo Nath caught hold Sheo Nath at Pathwara and Mahesh inflicted knife blows due to which he sustained injuries, fell down and died. Ram Swarup was apprehended by causing injuries. Koka came to rescue him. Dharama and Sheo Lal chased him away by causing injuries. 28. Hari Om (P. W. 4) stated that Dharam Singh was his father. On the date of occurrence at about 3. 00 p. m. he was at his house. His father Dharam Singh and uncles Sheo Nath and Sheo Lal were also there. Hearing alarm they came out and he saw that Ram Swarup had caught hold hand of his mother Smt. Ram Kali and was saying as to why she was spreading rumour against his daughter. He and his father asked Ram Swarup to leave hand of his mother and tell what was the matter. In the meantime Harpal, Prahlad and Mahesh also came there. Mahesh was having knife and rest were having lathis. Ras Swarup was also having lathi. They started causing injuries on him and his father and uncles with lathis. Babu (P. W. 2), Munnu Singh (P. W. 3) and others came there. Sheo Nath ran towards Pathwara. Ram Swarup. Prahlad and Harpal chased caught him hold at Pathwara and Mahesh inflicted knife blows on him due to which he fell down and died. Ram Swarup was apprehended. Koka came to rescue him, but he was chased away causing injuries. 29. The learned counsel for the appellants contended that the occurrence had not initiated as alleged by the prosecution it initiated as contended by the appellants. The defence version is proved by presence of injuries on Km. Mukhtiyari, Khachedu Singh (D. W. 4) Ram Swarup and Koka. The prosecution has not explained injuries of Km. Mukhtiyari and Khachedu Singh (D. W. 4), which indicates that prosecution, has suppressed the origin and genesis of marpeet and defence version is more probable. 30. The defence version is proved by presence of injuries on Km. Mukhtiyari, Khachedu Singh (D. W. 4) Ram Swarup and Koka. The prosecution has not explained injuries of Km. Mukhtiyari and Khachedu Singh (D. W. 4), which indicates that prosecution, has suppressed the origin and genesis of marpeet and defence version is more probable. 30. As held by Apex Court in number of cases the accused need not prove the existence of right of private defence beyond reasonable doubt. It is enough for him to show as in civil cases that the preponderance of probabilities is in favour of his plea. 31. Place of occurrence is an important factor in deciding origin and genesis of marpeet. The prosecution alleged that occurrence originated at the Rahat of Koka, where Ram Swarup appellant had caught hold of Smt. Ram Kali and when other appellants came there and started inflicting injuries on prosecution side, Sheo Nath deceased ran towards his Pathwara, towards south and he was caught hold by Harpal and Prahlad and Mahesh inflicted knife blows on him. He fell down there and died. On the other hand case of appellants was that entire incidence took place in the Baithak of Koka and its Sehan, Sheo Lal (P. W. 1), Babu (P. W. 2), Munnu Singh (P. W. 3) and Hari Om (P. W. 4) stated that the occurrence initiated at the Rahat of Koka and injuries on Sheo Nath were caused at his Pathwara where he fell down and died. Khachedu Singh (D. W. 4) father of Harpal appellant stated that hearing shrieks of Km. Mukhtiyari he reached in the Baithak of Koka where he saw Hari Om attempting to commit rape on Mukhtiyari. He further stated in his cross-examination that injuries on Sheo Lal, Dharam Singh, Hari Om and Sheo Nath deceased were caused in the said Baithak. Injuries on Sheo Nath were caused by Koka in the Sehan of said Baithak. Sheo Nath did not fell down there nor died there but he went towards his house. No blood had fallen in the Sehan of Koka. That Pathwara of Sheo Nath was situated at a distance of 100 paces from the Gher of Koka. The I. O. Kashi Ram Pundeer (P. W. 6) reached the spot at 5. 30 p. m. on the date of occurrence and he found dead body of Sheo Nath lying at his Pathwara. That Pathwara of Sheo Nath was situated at a distance of 100 paces from the Gher of Koka. The I. O. Kashi Ram Pundeer (P. W. 6) reached the spot at 5. 30 p. m. on the date of occurrence and he found dead body of Sheo Nath lying at his Pathwara. He also found blood at said place. Injuries of Sheo Nath were such that in all probabilities blood had fallen from it. Khachedu (D. W. 4) admitted that I. O. visited the spot on the date of occurrence but he showed his ignorance about the presence of dead body of Sheo Nath at his Pathwara. Had Sheo Nath sustained injuries at the Sehan of Koka and then went to his Pathwara where he fell down and died, this could have easily been seen by Khachedu Singh (D. W. 4) and he would have stated it. His ignorance about presence of dead body and blood at the Pathwara and statement of I. O. in this regards established the place of occurrence alleged by the prosecution and absence of blood either in the Baithak or Sehan of Koka falsifies the place of occurrence suggested by the appellants. 32. Admittedly, the occurrence took place on 10-4-1981 at about 3. 00 p. m. The cross report (Ext. Kha-3) lodged by Dalpat Singh (D. W. 2) also indicated that occurrence took place on 10-4-1981 at about 3. 00 p. m. The report of the prosecution was lodged at 4. 30 p. m. on same date. The injured Sheo Lal (P. W. 1) Dharam Singh and Hari Om (P. W. 4) who admittedly received injuries in the incident were medically examined between 5. 00 p. m. and 6. 00 p. m. on same day. But the report of cross case was lodged by Dalpat Singh (D. W. 2) on 13-4-1981 and injuries of Khachedu Singh (D. W. 4) and Koka were examined on 13-4-1981 while injuries of Km. Mukhtiyari were examined on 14-4-1981. Dalpat Singh (D. W. 2) stated that he got information regarding occurrence on the evening of next day and then he met Ram Swarup in jail who told that his report was not written and injuries of injured were not examined. Therefore, he came to village Shahbazpur, got medically examined, Koka and Khachedu on 13-4-1981 and then lodged report at P. S. Civil Lines. Therefore, he came to village Shahbazpur, got medically examined, Koka and Khachedu on 13-4-1981 and then lodged report at P. S. Civil Lines. Khachedu Singh (D. W. 4) stated that Km. Mukhtiyari had gone to the house of her mothers sister and returned back to the village after 4-5 days. 33. Admittedly, Koka, elder brother of Ram Swarup appellant had gone to the police station on same day alongwith Ram Swarup. Dalpat Singh (D. W. 2) stated that report of Ram Swarup was not written and Koka was returned from police station saying that his report would be written. But no report was lodged either by Koka or Khachedu (D. W. 4) on next day. Koka and Khachedu also did not get themselves medically examined on the date of occurrence or on the next day. Khachedu Singh (D. W. 4) however gave explanation that Koka told that their medical examination would be done only on coming back of Ram Swarup. This explanation is not convincing. The explanation of lodging report on 3rd day of the occurrence offered by Dalpat Singh (D. W. 2) that Ram Swarup told him that injured are in village, get them medically examined and then lodge report is also not convincing. It leads to infer that cross report was lodged by Dalpat Singh after due deliberations and obtaining legal advice, which creates grave doubt in cross version. 34. The learned counsel for the appellants contended that the prosecution has not explained injuries of Khachedu Singh (D. W. 4) and Km. Mukhtiyari and therefore, defence version appears more probable. 35. According to appellants Ram Swarup, Koka, Khachedu Singh and Km. Mukhtiyari sustained injuries on their side. 36. Injuries of Ram Swarup appellants were examined in District Jail Hospital on 11-4-1981 by Dr. Lalit Kumar Ananad (P. W. 8) who found following injuries on his person: (1) Lacerated wound 5. 5 cm x 0. 2 cm deep muscle deep in anterior posterior torn, everted margin on the front part of head 7. 5 cm above root of the nose. Clotted blood present. (2) Traumatic swelling 16 cm x 6 cm vertical redish on the bank of right fore-arm 10 cm below elbow joint crepts and pain an movements of local bones present kept under observation. Advised X-ray. (3) Contusion 9 cm x 5 cm vertical redish on the front surface of left shoulder joint. Clotted blood present. (2) Traumatic swelling 16 cm x 6 cm vertical redish on the bank of right fore-arm 10 cm below elbow joint crepts and pain an movements of local bones present kept under observation. Advised X-ray. (3) Contusion 9 cm x 5 cm vertical redish on the front surface of left shoulder joint. (4) Lacerated wound 1 cm x 0. 3 cm x 0. 1 cm deep (muscle deep) torn everted margin on the back of left fore-arm, 5 cm below left elbow joint. Clotted blood present. 37. Injury Nos. 1, 3 and 4 were simple. No. 2 kept under observation. All injuries were caused by hard and blunt object and were 1/2 day old. 38. Supplementary report (Ext. Ka-2) shows that there was fracture of lower part of right radius and therefore, injury No. 2 was grievous. 39. Injury report of Koka Singh (Ext. Kha-7) shows that Koka Singh was medically examined on 13-4-1981 by Dr. Bharatia (not examined) and following injuries were found on his person: (1) Lacerated wound 3 cm x 1 cm x bone deep over right side face 1 cm, below right eye. Kept under observation. Advised X-ray. (2) Contusion 2 cm x 2 cm over right side face 3 cm below right eye. Colour blackish brown. (3) Contusion 2 cm x 2 cm x cm over outer aspect of right arm 8 cm above right elbow joint. Blue in colour. (4) Contusion 2 cm x 2 cm. Over right side back 4 cm below right scapula. Blue in colour. 40. Injury No. 1 kept under observation. Rest simple caused by hard and blunt object, duration about 3 days. 41. Injury report of Khachedu Singh (Ext. Kha-6) shows that Khachedu was medically examined on 13-4- 1981 at 1. 50 p. m. by Dr. Bharatia (not examined) and there were following injuries on his person: (1) Contusion 2 cm x 2 cm over top of left shoulder. Bluish in colour. (2) Lacerated wound 1 cm x 1/2 cm x scalp deep over left side head 6 cm above left ear. Kept under observation advised X-ray. (3) Contusion 3 cm x 2 cm over outer aspect of right thigh, 10 cm above knee joint. Bluish in colour. Injury No. 2 kept under observation. Nos. 1 and 3 simple, caused by hard and blunt object, duration about 3 days. 42. Dr. Kept under observation advised X-ray. (3) Contusion 3 cm x 2 cm over outer aspect of right thigh, 10 cm above knee joint. Bluish in colour. Injury No. 2 kept under observation. Nos. 1 and 3 simple, caused by hard and blunt object, duration about 3 days. 42. Dr. B. C. S. Yadava (D. W. 3) stated that on 14-4-1981 at 1. 35 p. m. he examined injuries of Km. Mukthiyari at District Hospital Moradabad and found following injuries on her person: (1) Scabed abrasion 3 cm x 3 cm on the anterior surface of right elbow. (2) Scaped abrasion 2 cm x 1. 5 cm on the back of left wrist. (3) Traumatic haematoma 5 cm x 5 cm on the top of head. (4) Contusion (greenish) on the left side of chest 3 cm x 2 cm x 2 cm below of clavicle. (5) Abrasion scabed on the backside over the shoulder blade. All injuries were simple caused by blunt weapon duration about 3-5 days. 43. The prosecution has admitted and explained injuries of Ram Swarup and Koka Singh and the ocular witnesses have categorically stated that Ram Swarup was apprehended at Pathwara causing injuries and when Koka Singh came to rescue him (Ram Swarup) he was given beating and chased away. Arrest of Ram Swarup by prosecution witnesses is proved, as he was brought to the police out post Dharaura Mandi at 4. 30 p. m. by Sheo Lal and others and was handed over to the police. This fact is also proved by Head Constable Radhey Shyam (P. W. 9) who stated that Ram Swarup was brought to the police out post and he took him into custody. On arrest of Ram Swarup by prosecution witnesses it was but natural for Koka Singh, his brother, to get him rescued, but he failed and injuries would have been caused on him to fail his attempt to rescue Ram Swarup. As such, there is sufficient explanation of injuries of Ram Swarup and Koka Singh. 44. The prosecution has not admitted injuries of Khachedu Singh (D. W. 4) and Km. Mukhtiyari. The ocular witnesses have denied their presence on the spot. As noted above, injuries of above two persons were simple and superficial. The injuries of above persons were not examined on the date of occurrence or next day. 44. The prosecution has not admitted injuries of Khachedu Singh (D. W. 4) and Km. Mukhtiyari. The ocular witnesses have denied their presence on the spot. As noted above, injuries of above two persons were simple and superficial. The injuries of above persons were not examined on the date of occurrence or next day. Explanation regarding delay in medical examination of above persons offered by Dalpat Singh (D. W. 2) and Khachedu Singh (D. W. 4) is not convincing and the possibility that injuries of above persons were manufactured subsequently to make out a cross version cannot be easily ruled out. Therefore, injuries on above persons could not be established to have been sustained in the same transaction in which prosecution side and Ram Swarup and Koka sustained injuries. Therefore, prosecution was not under obligation to explain injuries of above persons. 45. The case of the prosecution regarding the origin and genesis of marpeet and the manner of occurrence is corroborated by injured witnesses Sheo Lal (P. W. 1), Hari Om (P. W. 4) whose presence is admitted to the appellants and independent witnesses Munnu Singh (P. W. 3 ). Munnu Singh (P. W. 3) has explained his presence on the spot and he is the next dour neighbor of Sheo Nath deceased. At the time of occurrence he was going to his field through Rasta near the place of occurrence. An attempt was made to show him inimical to Harpal appellant, but he denied the suggestion that he had ploughed Chak road regarding which there was enmity with Ram Swarup. No evidence was led to prove alleged enmity. Therefore, Munnu Singh (P. W. 3) is an independent witness. 46. Babu (P. W. 2) no doubt stated in his cross examination that occurrence initiated on teasing of Km. Mukhtiyari by Hari Om, but he clarified in his re-examination that he stated it on the direction of appellants except it, he has supported prosecution story. 47. That ocular prosecution witnesses have categorically stated that knife blows on Sheo Nath deceased were caused by appellant Mahesh. But the case of the appellants was that Koka (not an accused) caused injuries on Sheo Nath deceased by Daranti (sickle ). The ocular witnesses have not assigned role of causing injuries to any injured or deceased by Koka Singh. 47. That ocular prosecution witnesses have categorically stated that knife blows on Sheo Nath deceased were caused by appellant Mahesh. But the case of the appellants was that Koka (not an accused) caused injuries on Sheo Nath deceased by Daranti (sickle ). The ocular witnesses have not assigned role of causing injuries to any injured or deceased by Koka Singh. Sheo Lal (P. W. 1) is the real brother of deceased and Hari Om (P. W. 4) is the real nephew of deceased. These witnesses were not expected to spare out real assailants and falsely implicate innocent persons. The occurrence had admittedly taken place in broad daylight and there was no scope for mistaken identity of assailant. Had Koka Singh caused injuries on deceased, the ocular witnesses must have stated this fact and they would have not spared him. No examination has been offered and no ground has been shown from the side of appellants as to why role of causing incised wounds to deceased was not assigned to Koka Singh and this role was wrongly assigned to appellant Mahesh. This aspect of the prosecution case again shows that prosecution version is more probable. 48. Appellant Harpal has set up a plea of alibi. It is settled that plea of alibi must be proved by cogent and reliable evidence. No evidence has been adduced to prove this plea. Sri Kashi Ram Pundeer, I. O. (P. W. 6) has simply admitted that he heard that Prahlad was employed in Health Department at Jabilpur Block. But his above admission does not prove the plea of alibi set up by Prahlad. The ocular witnesses have proved his presence on the spot and participation in the incident. Therefore, above plea could not be established. 49. In view of our above discussions and observations we find that prosecution has successfully proved its case beyond all reasonable doubts and appellants failed to show even preponderance of probability to have acted in exercise of right of private defence. The prosecution thus established the guilt of the appellants and the appeal has no force. 50. The appeal is, accordingly, dismissed. The appellants are on bail. They shall surrender before C. J. M. Moradabad and serve out the sentence. C. J. M. Moradabad is also directed to issue non-bailable warrant against the appellants. The prosecution thus established the guilt of the appellants and the appeal has no force. 50. The appeal is, accordingly, dismissed. The appellants are on bail. They shall surrender before C. J. M. Moradabad and serve out the sentence. C. J. M. Moradabad is also directed to issue non-bailable warrant against the appellants. The office is directed to send the copy of this order to the C. J. M. concerned for compliance and report within a month. Appeal dismissed. .