JUDGMENT SUJIT BARMAN ROY, C.J. — In this appeal the appellant Bhaskar Naik has challenged the judgment dated 24.9.1994 passed by the learned Sessions Judge, Dhenkanal-Angul in S.T. Case No. 3/D of 1991 convicting the appellant under Section 302 I.P.C. and sentencing him thereunder to undergo R.I. for life. 2. Prosecution case in brief is that on 16.8.1990 at about 1 P.M., P.W.4 Debahari Naik came to Chendipara Police Station being accompanied by his injured brother Gurubaria Naik (since deceased) and P.W.3 Thengu Naik and lodged an oral complaint that they were four brothers. The appellant Bhaskar Naik was his co-villager and he was staying with his adopted mother D.W.1 Ura Naik since preceding two years. On the very day in the morning his younger brother P.W.3 Thengu took the cows outside for graz¬ing and his sister P.W.5 Chata and one Jasoda being the sister of the appellant were working in the field of one Nityananda Majhi. P.W.4 also was working in the field of Parsu Majhi and the de¬ceased was in his house. Around noon time his sister P.W.5 Chata returned home and complained to the deceased that P.W.5, Chata and Jasoda being the sister of the appellant had quarreled with each other and in the midst of quarrel, D.W.1 Ura being the adopted mother of the appellant went there and assaulted P.W.5 P.W.4 after attending the call of nature, when he returned home, P.W.5, Chata narrated the aforesaid incident before him. On hearing this incident, P.W.4 along with P.W.3 Thengu, P.W.5 Chata and others had been to the house of the appellant for a settle¬ment. Bhaskar and Ura were present in the house at that time. When deceased asked D.W.1 about the incident, she assaulted P.W.5 with a stick and closed the gate of her house. After the around 1 P.M. appellant picked up a quarrel with the deceased Gurubaria and threatened to kill him. Saying this, the appellant picked up an axe from inside this house and gave a blow with it on the head of the deceased. On receiving such blow, the deceased fell down. P.W.6, Pathani Naik, P.W.5, Chata Naik, Lokanatha Naik, Raghu Naik and others witnessed the said occurrence. So, he brought the deceased in injured condition in a bullock cart to the police station. On receiving such blow, the deceased fell down. P.W.6, Pathani Naik, P.W.5, Chata Naik, Lokanatha Naik, Raghu Naik and others witnessed the said occurrence. So, he brought the deceased in injured condition in a bullock cart to the police station. The aforesaid oral complaint was reduced into writing by the Officer-in-charge of the said police station and on that basis an F.I.R. under Section 307 I.P.C. was registered against the appellant. Subsequently, on 23.8.1990, the deceased succumbed to the injuries in the hospital and, accordingly, Section 302 I.P.C. was added to this case. On conclusion of investigation, charge sheet under Section 302 I.P.C. was filed by the police against the appellant. In course of time, the case was committed to the learned trial Court. 3. On perusal of the materials on record, charge under Section 302 I.P.C. was framed against the appellant to which he pleaded not guilty. In course of trial, in this case, in all eleven P.Ws including some eye witnesses were examined on behalf of the prosecution. Two D.Ws. were examined on behalf of the appellant. The defence of the appellant was that the main inci¬dent was preceded by some small incident between the adopted mother of the appellant and P.W.5 Chata Naik. Later on, the deceased along with his brothers and others raided the house of the appellant being armed with various deadly weapons and set fire to his house. Subsequently, some mutual fight took place. Howe¬ver, defence did not adduce any evidence nor gave any suggestion as to who had assaulted the decreased. On conclusion of the trial, the appellant was convicted and sentenced as already stated. 4. As already stated, P.W.4 Debahari Naik is the informant of the case. He is also an eye witness of the occurrence. In this evidence, P.W.4 Debahari Naik stated that he is the brother of the deceased. He knew the appellant. On the date of occurrence, he had been to the land of one Parsu Majhi for ploughing. When he returned back home from the field, at about 1 P.M., his elder sister was seen crying. On enquiry, she complained that D.W.1, Ura Naik being the adopted mother of the appellant had assaulted her in the field and when she was returning home, she was again assaulted by D.W.1 in front of her house. Meanwhile, the deceased arrived at that place. The deceased abused Ura and the appellant. On enquiry, she complained that D.W.1, Ura Naik being the adopted mother of the appellant had assaulted her in the field and when she was returning home, she was again assaulted by D.W.1 in front of her house. Meanwhile, the deceased arrived at that place. The deceased abused Ura and the appellant. He again found that his sister Nani and Ura were quarreling near a mohua tree. The house of Ura was situated near a mohua tree. The appellant further abused them saying that “ I would rub my body with your ashes after cremation.” It is further stated in his evidence by P.W.4 that Ura directed the appellant to give a blow. Immediate¬ly, the appellant gave a blow with a Tangia on the head of the deceased and fled away. The informant being P.W.4 chased the appellant and snatched away Tangia from him. Then the appellant and Ura went inside their house and set it on fire and thereafter they fled away. It needs to be mentioned here that in the F.I.R., P.W.4 never claimed that he snatched away Tangia or that the appellant and Ura themselves set their house on fire. This version is disclosed for the first time in course of his evidence before the trial Court. Thereafter, P.W.4 came to the said police sta¬tion with injured Gurubaria Naik and the axe and lodged a com¬plaint and also handed over the weapon of offence (Tangia) to the police. After the said oral complaint was reduced into writing, P.W.4 gave his signature thereto. From the police station, P.W.4 brought the inured to Chendipara hospital and from there the injured was referred to Anul hospital. He died in that hospital about eight days after the incident. The defence suggestion that on that day, P.W.4 along with P.W.5 Chata and deceased Gurubaria and others while quarreling with Ura assaulted her has been denied. He also admitted in course of cross-examination that at the time of incident, P.W.6, Pathani Naik, P.W.9, Hadibandhu Naik, Narayan Naik and others were also present at the spot. This witness also denied the defence suggestion that after assaulting D.W.1 Ura, they set the house of the appellant on fire. P.W.4 further denied the suggestion that P.W.4 along with others being armed with lathi, Tangia etc. went to the house of the appellant with a view to murder the appellant and Ura. This witness also denied the defence suggestion that after assaulting D.W.1 Ura, they set the house of the appellant on fire. P.W.4 further denied the suggestion that P.W.4 along with others being armed with lathi, Tangia etc. went to the house of the appellant with a view to murder the appellant and Ura. He pleaded ignorance as to whether D.W.1 Ura was hospitalized after the incident. It further appears from the evidence of investigating officer (P.W.11) that this witness stated to the police that after hear¬ing about the incident of assault on P.W.5 Chata, this witness along with P.W.3, Thengu Naik, P.W.5 Chata and others went to the house of the appellant for discussion and at that time, P.W.5 Chata and D.W.1 Ura had a mutual fight. This is in short the entire evidence given by this witness. 5. The next important witness is P.W.3 Thengu Naik. He is also the brother of P.W.4 and the deceased. On the date of occur¬rence at around 11.30 A.M. he was returning back to home with his bullock. At that time he heard hue and cry near a mohua tree. The house of D.W.1, Ura Naik was situated at that place. Upon hearing such hue and cry, this witness came to the spot and found that the appellant gave a blow with Tangia on the head of the de¬ceased. After giving the blow, when the appellant was running away, P.W.4, Debahari Naik chased him and snatched away axe (Tangia). Immediately after that appellant and D.W.1 Ura Naik ran to their house and set fire to it. Thereafter, they fled away. After this incident, they took the Tangia with the deceased in injured condition to the police station. At the police station P.W.4 Debahari Naik lodged an oral complaint and handed over the axe to the police. Thereafter, the injured was taken to the hospital for treatment. However, from the evidence of P.W.11 (I.O.), it appears that this witness did not see the incident when the appellant had assaulted the deceased on his head with the Tangia. On arrival he merely saw P.W.5 Chata Naik, P.W.4, Debahari Naik, P.W.6, Pathani Naik, Naran Naik, P.W.9, Hadibandhu Naik and others were present at the spot. This witness subse¬quently denied the defence suggestion that the witness along with others set fire to the house of the appellant after assaulting D.W.1 Ura Naik. On arrival he merely saw P.W.5 Chata Naik, P.W.4, Debahari Naik, P.W.6, Pathani Naik, Naran Naik, P.W.9, Hadibandhu Naik and others were present at the spot. This witness subse¬quently denied the defence suggestion that the witness along with others set fire to the house of the appellant after assaulting D.W.1 Ura Naik. It further appears from the evidence of P.W.11 (I.O.) that this witness never stated before the I.O. that he saw the appellant giving a Tangia blow on the head of the deceased. He merely stated to the I.O. that on his arrival at the spot, he found the appellant standing there with a Tangia in hand and the deceased was lying on the ground with a bleeding injury. This is in brief the evidence given by this witness. 6. The next important eye witness is P.W.5 Chata Naik. She happens to be the sister of the deceased and P.W.4 and P.W.3. She stated in her evidence that this witness along with Kanta, Josoda and one Santa were working in the field of Nitia Majhi. Then there was a quarrel among themselves. After the quarrel, Jasoda being the daughter of D.W.1 Ura returned to her house and complained about the incident of quarrel to her mother and the appellant Bhaskar. Immediately after that, D.W.1 Ura Naik along with appellant came to the field and Ura assaulted this witness with a lathi and the appellant abused her. After this incident, she returned home and reported the matter to her brothers, name¬ly, the deceased and debahari. On this issue, there was again a quarrel between the two parties. During such quarrel, D.W.1, Ura exhorted the appellant to give blows on the deceased with an axe. On being so instructed, appellant gave a blow to the deceased with the axe. The deceased fell down on the ground after sustain¬ing injuries on his head. P.W.4 Debahari Naik snatched away the Tangia (axe) from the hand of the appellant. Immediately after that, the appellant and Ura ran into their house and set fire to the same and thereafter they ran away. Subsequently, this witness and others carried the inured and the weapon of offence to the said police station and an F.I.R. was lodged. The injured was taken to the hospital at Chendipara and from there, he was shift¬ed to Angul hospital where he died about eight days thereafter. Subsequently, this witness and others carried the inured and the weapon of offence to the said police station and an F.I.R. was lodged. The injured was taken to the hospital at Chendipara and from there, he was shift¬ed to Angul hospital where he died about eight days thereafter. In course of cross-examination, this witness denied the defence suggestion that after the incident of quarrel in the field of Nityananda Majhi, this witness along with deceased, P.Ws Thengu and Debahari and others being armed with Tangia and lathi went to the house of the appellant and assaulted D.W.1 Ura near a mohua tree in front of her house or that accused did not assault the deceased with an axe or that Ura and appellant did not set their house on fire. However, it is evident from the evidence of P.W.11 (I.O.) that this witness stated before him that while she was passing by the side of the house of appellant, D.W.1 Ura came towards her and gave her a blow with a lathi. It further appears from the evidence of P.W.11 (I.O.) that P.W.5 did not state before him that D.W.1 Ura Dei exhorted the appellant to give a blow on the deceased with an axe. This is in short the evidence given by this witness before the trial Court. 7. P.W.6, Pathani Naik also figured in this case as an eye witness of the occurrence. He stated in his evidence before the trial Court that on the date of occurrence the appellant, de¬ceased, P.Ws Chhata Naik, Debahari Naik, Thengu Naik, Naran Naik and Hadibandhu Naik quarelled among themselves. Hearing hue and cry, this witness came to the spot and found that the appellant was standing with a Tangia in his hand and suddenly he gave a blow with that Tangia (axe) on the head of the deceased. When the appellant was running away from the spot, P.W.4 Debahari Naik snatched away the Tangia from him. The appellant and D.W.1 Ura Naik both entered their house and set it on fire and thereafter, they flied away from that place. From the spot, this witness and others with the deceased and the axe went to the police station and at the police station P.W.4 Debahari Naik lodged the F.I.R. The investigating officer seized the Tangia on its production by Debahari Naik. He signed the seizure memo being Ext.6. From the spot, this witness and others with the deceased and the axe went to the police station and at the police station P.W.4 Debahari Naik lodged the F.I.R. The investigating officer seized the Tangia on its production by Debahari Naik. He signed the seizure memo being Ext.6. He also identified the Tangia being M.O.I. During cross examination, this witness further stated that all the persons named by him during his examination in chief were at the spot before his arrival there.However, he denied the suggestion that the deceased and the other persons were quarreling with D.W. 1 Ura Naik before his arrival at the spot. But, he had to admit during cross examina¬tion that he stated to the police that being attracted by hue and cry when he came to the spot, he found D.W.1 Ura Naik, P.W. Chhata, deceased Gurubaria Naik and the appellant Bhaskar were quarelling among themselves. He further denied the suggestion that deceased Gurubaria along with P.Ws Chhata, Thengu and Deba¬hari and others assaulted Ura as Ura quarelled with Chhata and then all of them set fire to the house of D.W.1 Ura. He further pleaded his ignorance as to whether Ura had been hospitalized after the occurrence. He also denied the defence suggestion that the appellant and D.W. 1 Ura did not set fire to their house. 8. P.W.7, Atul Chandra Mohanty is a police constable and being instructed by the I.O. under a Command Certificate he attended the Post-mortem examination of the dead body of the deceased Gurubaria. After the Post-mortem examination was over, he brought the blood stained wearing apparels of the deceased to the police station where the same were seized by the Investigat¬ing Officer. P.W.8 is not at all an important witness and hence it is not considered necessary to discuss his evidence. P.W.9 Hadibandhu Naik also figured in this case as an eye witness of the occurrence. He stated in his evidence that being attracted by hue and cry he rushed to the spot and found the appellant giving a blow on the head of the deceased with a Tangia. However, P.W.4 Debahari Naik snatched away the said Tangia from the appellant and D.W.1 Ura Naik ran inside their house and set it on fire. He also stated during cross examination that the occurrence took place in front of the house of D.W.1 Ura Naik. However, P.W.4 Debahari Naik snatched away the said Tangia from the appellant and D.W.1 Ura Naik ran inside their house and set it on fire. He also stated during cross examination that the occurrence took place in front of the house of D.W.1 Ura Naik. Before his arrival at the spot, P.W.6 Pathani Naik and others namely, Iswar Naik, Bita Naik, Chandra Naik and others were present at the spot. His house is situated about 1/4th K.M. away from the house of Ura Naik. He denied the defence suggestion that he along with others in a body went to the house of D.W.1 Ura Naik and set fire to it. He also denied the suggestion that deceased was holding a lathi or that Debahari and this witness himself were holding Tangias. On the side of the house of D.W.1 Ura Naik, there was a mohua three and the trouble took place near the mohua tree. He also denied the suggestion that the deceased Gurubaria abused D.W.1 Ura Dei in filthy language and thereafter, the deceased and others start¬ed assaulting her or that at that time the appellant came there to rescue Ura Dei. He denied any knowledge as to whether D.W.1 Ura Naik was hositalized. He further denied the suggestion that the appellant did not give any blow on the head of the deceased with an axe. This is in brief the evidence given by this witness. P.W.10 Achutananda Pradhan is the witness to the seizure of some blood stained earth and sample earth from the place of occur¬rence. As already stated P.W.11 Narahari Panda was the I.O. of this case. It was specifically suggested to P.W.11 in course of cross examination that D.W.1 Ura Dei lodged an F.I.R. at the police station alleging that P.W.4 Debahari Naik and others had assaulted her. However, this witness pleaded his ignorance as to whether any such F.I.R. was at all lodged by D.W.1. He failed to remember as to whether D.W.1 was referred by him to hospital for medical examination. He further denied the suggestion that the F.I.R. lodged by Ura Dei was suppressed by him or that in any such F.I.R. it was alleged that the deceased and others had assaulted her and set fire to her house. This is in short the evidence of this witness. 9. We have already discussed the evidence of prosecution witnesses. He further denied the suggestion that the F.I.R. lodged by Ura Dei was suppressed by him or that in any such F.I.R. it was alleged that the deceased and others had assaulted her and set fire to her house. This is in short the evidence of this witness. 9. We have already discussed the evidence of prosecution witnesses. What appears from the evidence of prosecution witness¬es is that house of the appellant and D.W.1 Ura Dei was gutted by fire on that date. The case of the prosecution witnesses is that the appellant and Ura Dei themselves set fire to their house after assaulting the deceased with an axe on the head. The de¬fence suggestion to all the prosecution witnesses all through was that after some small incident between Ura Dei and P.W.5 Chhata some time before the main occurrence, deceased, his brothers and others came to the house of the appellant and the main incident occurred there. It is the case of the appellant that after coming to the spot deceased and his relations assaulted D.W.1 being the adopted mother of the appellant and they also set fire to the house of the appellant. However, the appellant denied that he had assaulted the deceased though there was some fight among themsel¬ves after the house of the appellant was set on fire by the deceased and his relations. With regard to the defence version on this point, the defence has adduced evidence through D.W.1 and D.W.2. According to the prosecution evidence, D.W.1 was present n the scene of occurrence all through. Therefore, it is admitted that D.W.1 is also an eye witness. D.W.1 Ura Dei in her evidence stated that the appellant is her adopted son. P.W.5 and Jasoda being the daughter of Ura had quarrelled among themselves. Howe¬ver, Ura pacified them. After this small incident P.W.5 Chhata Naik brought her father, all her brothers and others namely, P.Ws Debahari Naik, Thengu Naik, Hadibandhu Naik, Pathani Naik, Naran Naik, deceased and others to her house. At that time she was standing near a mohua tree on the back side of her house. The deceased started abusing her and gave blows on her back and buttock with a lathi. She fell down on the ground and thereafter they all set fire to her house. At that time she was standing near a mohua tree on the back side of her house. The deceased started abusing her and gave blows on her back and buttock with a lathi. She fell down on the ground and thereafter they all set fire to her house. At that time, the appellant Bhas¬kar Naik came to rescue her and thereafter she could not say as to what had happened as she lost her sense. Some time thereafter, the appellant took her to Chendipara Police Station where she gave information about this incident. However, the police did not take any action on her report, but she was sent for medical examination on police requisition. She was cross examined by the prosecution. During cross examination, she denied the prosecution suggestion that P.W.5 Chhata Naik, deceased and others did not come to her house to assault her but they came to her house to enquire as to why her daughter Jasoda had assaulted their sister. She also denied the suggestion that on her instruction, the appellant brought an axe from the house and assaulted the de¬ceased with it and thereafter, both the appellant and this wit¬ness set fire to their dwelling house and fled away from the place of occurrence. This is in all the evidence given by this witness. What appears from her evidence that after the small incident between P.W.5 Chhata Naik and the daughter of D.W.1 Ura Dei, P.W.5 Chhata Naik, deceased and others in a body came to her house. This part of the story of this witness is admitted by the prosecution witnesses as also through the suggestion given to D.W.1 by the prosecution during her cross examination. Of course it is the case of the prosecution that the deceased party did not come there to assault her but to make an innocent enquiry as to why Jasoda being the daughter of D.W.1 Ura Dei had assaulted their sister P.W.5 Chhata Naik. This is also admitted by the prosecution witnesses as also in the suggestions given to D.W.1 in course of her cross examination by the prosecution that at or about the time of occurrence, the house of the appellant was gutted by fire. It is of course the case of the prosecution that the house was set on fire by the appellant and D.W.1 Ura Dei themselves. 10. It is of course the case of the prosecution that the house was set on fire by the appellant and D.W.1 Ura Dei themselves. 10. D.W.2 Bhagirathi Nayak is the other witness examined on behalf of the appellant as D.W.2. He has stated in his evidence that he has cultivable land near the house of the appellant. At the time of occurrence, he was working in his land. Around noon time, he saw P.W.5 Chhata came weeping and complained to her brother that she was assaulted by one girl from the house of the appellant. Hearing this complaint, deceased came from his house holding one lathi and proceeded towards the house of the appel¬lant. At hat time, deceased was followed by his other brothers namely, Debahari Naik, Hadibandhu Naik and others. After reaching the house of the appellant,deceased gave one or two blows with lathi on Ura. They even removed the wearing apparel of D.W.1 and made her naked. Thereafter, they set fire to the house D.W.1. After the house was set on fire, there was a quarrel and mutual fight among Ura on one side and the deceased and his brothers on the other. Seeing this, the appellant came to the spot. He also took part in the quarrel and mutual fight. Seeing this incident, D.W.2 along with his labourers went away from the place out of fear. During cross examination, however, this witness denied the prosecution suggestion that the appellant gave blows on deceased with a Tangia and the appellant himself set fire to his house. He, however, admits that he did not see as to who exactly set fire to the house of the appellant. This is in short the evidence given by this witness. 11. So far as medical evidence is concerned, it is neces¬sary to discuss the evidence of P.W.1, Dr. Sashibhusan Panda. On 23.8.1990 acting upon a police requisition, he conducted the post-mortem examination over the dead body of the deceased Guru¬baria Naik on being identified by the police constable and others. During such examination he found the following injuries :- “(1) A stitched wound of 2” length, placed longitudinally over the left parietal area 1" away from the midline. Rigormortis present in all four limbs. (2) A stitched wound extended and involving the brain mat¬ter, cutting both tables of paretal bone and menin ges. During such examination he found the following injuries :- “(1) A stitched wound of 2” length, placed longitudinally over the left parietal area 1" away from the midline. Rigormortis present in all four limbs. (2) A stitched wound extended and involving the brain mat¬ter, cutting both tables of paretal bone and menin ges. There is a haematoma of size 3" x 3" with blood about 100 ml. situated corresponding to the external injury. The injury is ante mortem in nature. Cause of death was due to compression of brain stem by haematoma. Time of death was stated to be within 24 hours of Post Mortem examination. 12. P.W.2 Dr. Laxmikanta Sahu was Medical Emergency Officer of Sub divisional Hospital, Angul on 23.8.1990. On that day, he declared the deceased dead at 4.50 A.M. and accordingly, sent information to the local police for necessary action. This is in short the evidence given by this witness. 13. We have discussed the entire evidence adduced from both sides in this case. We have heard the learned counsel for the appellant as well as Mr. M.R. Dhal, learned Addl.Standing Counsel for the State. Both of them have taken us through the evidence on record. Learned counsel for the appellant contended that the prosecution party along with the deceased came in a group to the house of the appellant and assaulted his adopted mother being D.W.1 Ura Dei. They also set fire to the house of the appellant in these circumstances a fight took place. Therefore, the appellant had acted in exercise of right of private defence of property and person and accordingly, he is not liable to be convicted. The impugned judgment should be set aide. He further contended that deceased and his brothers themselves set fire to the house of the appellant. This is highly improbable and absurd the appellant and D.W.1 themselves set fire to their own house and therefore, prosecution version should be rejected and appel¬lant’s version should be accepted. 14. It is true that the appellant never pleaded expressly that he assaulted the deceased in exercise of right of private defence. It is of course true that the defence has adduced evi¬dence that it was the prosecution party which assaulted the appellant’s mother first after coming to their house and set fire to their house. In these circumstances, fight between the two sides took place. It is of course true that the defence has adduced evi¬dence that it was the prosecution party which assaulted the appellant’s mother first after coming to their house and set fire to their house. In these circumstances, fight between the two sides took place. But the appellant never claimed that he himself had assaulted the deceased. We are called upon to decide as to whether in these circumstances the appellant is entitled to right of private defence of property and person. 15. It is claimed by the appellant as well as D.Ws. 1 and 2 that the deceased and his party first assaulted D.W. 1 Ura Dei. There is absolutely no medical evidence on record that D.W.1 Ura Dei suffered any injury though it was claimed by her in her evidence that soon after the occurrence, appellant lodged a complaint at the police station and yet no case was registered by the police. It is also claimed by the appellant as well as his witness, namely, D.W.1 Ura Dei that on police requisition she was treated in the hospital. This has of course been denied by the Investi¬gating Officer. There is no documentary evidence that D.W.1 Ura Dei was treated in any hospital for the injury which she alleged¬ly suffered. But the prosecution witnesses admit that the house of the appellant was set on fire. However, it is the prosecution case that the appellant and D.W.1 Ura Dei themselves set fire to their house. Therefore, the question is as to who set fire to the house of the appellant ? We get one version from the prosecution witnesses and again a different version from the D.Ws. In this connection, it must be mentioned that in the F.I.R. the fact that the house of the appellant was set on fire was not disclosed. Such non-disclosure indeed created a grave doubt as to the verac¬ity of the prosecution version that the appellant and D.W.1 Ura Dei themselves had set fire to their house. That part of the prosecution story also sounds inherently improbable as because there was no reason for the appellant and D.W.1 Ura Dei to set fire to their own house. Such non-disclosure indeed created a grave doubt as to the verac¬ity of the prosecution version that the appellant and D.W.1 Ura Dei themselves had set fire to their house. That part of the prosecution story also sounds inherently improbable as because there was no reason for the appellant and D.W.1 Ura Dei to set fire to their own house. Even if we accept that D.W.1 Ura Dei was assaulted by the deceased and his brothers, surely such assault did not give rise to right of private defence so as to cause death of the deceased inasmuch as it is not claimed by the appel¬lant or D.W.1 Ura Dei that such assault caused apprehension in the mind of the appellant and D.W.1 Ura Dei that death or grievous hurt would otherwise is the consequence of such assault. In the absence of such apprehension the appellant did not have the right of private defence of body to the extend of causing death of the aggressor. However, it is claimed that his house was set on fire by the deceased and other P.Ws. 16. Now, the question is when and under what circumstances, right of private defence of property extends to causing death ? It is an act of mischief by fire committed on any dwelling house that gives right of private defence of property which may extend to causing of death. Section 103 of the Indian Penal Code pro¬vides as follows : “103. When the right of private defence of property extends to causing death- The right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions to the exercise of the right, be an offence of any of the de¬scriptions hereinafter enumerated, namely : First.-Robbery; Secondly.-House-breaking by night ; Thirdly-.Mischief by fire committed on any building, tent or vessel, which, building, tent or vessel is used as a human dwell¬ing, or as a place for the custody of property ; Fourthly.-Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right,of private defence is not exercised.” 17. Therefore, in the circumstances set out above under Section 103 of the Penal Code, right of private defence of prop¬erty against mischief by fire committed on any building etc. which is used as a human dwelling extends to the causing of death of the wrong-doer. Surely Section 99 cannot apply in the instant case. It is not claimed by either side in the evidence on record that the restrictions contemplated under Section 99 of the Penal Code are applicable in the instant case. It is apparent from the aforesaid that against mischief by fire on any human dwelling, right of private defence extends to causing of death of the wrong doer. We are, therefore, required to decide as to whether in the circumstances of the case, the accused is entitled to right of private defence of property. We have already held that right of private defence of body n the instant case cannot extend to causing of death of the wrong doer. 18. Before analyzing the evidence on record in the context of plea of self-fence argued by the learned counsel for the appellant at the time of hearing, it is necessary first to dis¬cuss the law involved in this regard. Surely the appellant or his witnesses did not plead that the appellant had assaulted the deceased. For reasons not very far to seek, he remained silent on this important question. In this regard, the burden as re¬quired by or under Section 105 of the Evidence Act, to prove the case of private defence of property rests on the appellant him¬self. Section 105 of the Indian Evidence Act provides that when a person is accused of any offence, the burden of proving the exist¬ence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code or within any of the 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. It may be contended against the appellant that he did not discharge the burden laid upon him under Section 105 of the Evidence Act. The appellant never pleaded expressly that he had to assault the deceased because the deceased and his party were setting fire to his house. It may be contended against the appellant that he did not discharge the burden laid upon him under Section 105 of the Evidence Act. The appellant never pleaded expressly that he had to assault the deceased because the deceased and his party were setting fire to his house. Therefore, the appellant did not expressly plead any general exception provided under the Indian Penal Code and ac¬cordingly, the question arises whether he is entitled to raise such plea for the first time in the appeal ? After all, Section 105 of the Evidence Act requires the Court to presume absence of any such circumstances bringing the case within the general exceptions. According to the term “shall presume” as provided in Section 4 of the Evidence Act, burden is entirely upon the ac¬cused to rebut such presumption. The appellant has not expressly discharged that burden in the trial Court or by adducing any evidence whatsoever to rebut the presumption available against him under Section 105 of the Evidence Act. Section 4 defines the term “shall presume”. It provides that whenever it is directed by this Act that Court shall presume a fact, it shall regard such fact as proved, until and unless it is disproved. Now, Section 105 di¬rects in clear and unambiguous terms that the Court shall presume absence of such circumstances to bring the case within the general exceptions as provided in the Indian Penal Code. Accord¬ingly, the question arises that as the accused has not discharged the burden of disproving such presumption, is this Court bound to hold that the appellant is guilty of the offence ? Undoubtedly Section 105 is an important qualification of the general Rule that in the criminal trials the onus of proving everything essen¬tial to the establishment of the charge against the accused lies upon the prosecution. Now, the question is in view of failure of the appellant to take such a plea of exception expressly and to adduce any evidence to rebut the presumption available against him under Section 105 of the Evidence Act, whether it would be correct for us to say that in the circumstances of the case he is not entitled to take a plea of self-defence for the first time in this appeal ? 19. 19. In the State of U.P. v. Ramsawarup : (1974) 4 SCC 764 , it has been held by the Supreme Court that Rules of pleading under civil law does not govern the right of an accused in a criminal trial. Unlike in a civil case it is open to a criminal Court to find in favour of an accused a plea not taken up by him and by so doing Court does not invite a charge that it has made out a new case for the accused. The accused may not have pleaded as defence and yet Court may find from the evidence of the wit¬nesses examined on behalf of the prosecution and the circumstanc¬es of the case either that what would be otherwise an offence is not one because the accused acted within strict confines of his right or private defence or that the offence is mitigated because the right of private defence or that the offence is mitigated because the right of private defence has been exceeded. It has further been held by the Apex Court in the very same case that nature and effect of different types of presumptions arising under Section 105 of the Evidence Act is that while the initial presumption regarding absence of circumstances to bring the case within an exception may be met by showing existence of appro¬priate facts from the prosecution evidence itself. The Supreme Court also held in AIR 1981 SC 765 that falsity of defence case cannot take the place of proof of facts which prosecution has to establish in order to succeed. A false plea by the defence can be best considered as an additional circumstances provided other evidence on record unfailingly point to the guilt of the accused. Therefore, if the evidence on record fails to point to the guilt of the accused beyond reasonable doubt, it is of no consequence whether or not the defence version is false. Therefore, the ulti¬mate criterion in a prosecution is whether it has proved its case beyond all reasonable doubt. Such conclusion has to be arrived at by taking into consideration the entire evidence on record ad¬duced by both sides. Therefore, the ulti¬mate criterion in a prosecution is whether it has proved its case beyond all reasonable doubt. Such conclusion has to be arrived at by taking into consideration the entire evidence on record ad¬duced by both sides. If upon consideration of the entire evidence on record, the Court is left in a state for reasonable doubt as to whether the accused indeed committed any offence as there may be possibility that the accused acted in self-defence, benefit of such doubt has to be given to the accused. Again in Haripada De v. state of West Bengal : AIR 1956 SC 757 , it was held by the Supreme Court that the prosecution has to prove its case beyond reasonable doubt and the accused need not open his mouth nor lead any evidence. If the prosecution succeeds in establishing its case, the conviction will follow, but if the prosecution fails to discharge that general burden which lies upon it to prove the charge which has been framed against the accused, he is entitled to acquittal. However, if the prosecution proves its case by evidence of the witnesses then it is of course the bounden duty of the accused if he wants to prove his defence to adduce evi¬dence in support of his contentions and if he does not do so, he has only to thank himself for it. Therefore what we are required to consider in this case is whether the prosecution has proved its case beyond all reasonable doubt that the accused committed the offence within the meaning of law. If however prosecution evidence itself or other materials on record brings the case within the general exceptions under the Penal Code, then accused has no further burden to discharge within the meaning of Section 105 of the Evidence Act in order to rebut the presumptions avai¬lable against him. In Woolmington v. Director of Public Prosecu¬tions : 1935 AC 462, it was observed by Viscount Shankey as follows : “When evidence of death and malice has been given (this is a question for the jury) the prisoner is entitled to show, by evidence or by examination of circumstances advanced by the crown that the act on his part which caused death was either uninten¬tional or provoked. If the jury are either satisfied with his explanation or upon review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accept¬ed, the act was unintentional or provoked, the prisoner is enti¬tled to be acquitted.......Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prison¬er which may cause a doubt as to his guilt. In either case he is entitled to the benefit of doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence.....Throughout the web of English Criminal Law one golden thread its always to be found, that it is the duty of the prosecution to prove the prisoners guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is reasonable doubt created by the evidence given by either the prosecution or the prisoner, as to whether prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law in England and no attempt to whittle it down can be entertained.” 20. Therefore, the accused is required only to create reasonable doubt in the mind of the Court to get acquittal irres¬pective of whether he has taken a specific plea of right of private defence or not. 21. This principle was relied upon by the Apex Court in V.D. Jhingan v. State of U.P. : AIR 1966 SC 1762 and also in Vijayee Singh v. State of U.P. (1990) 3 SCC 190 and quoted the aforesaid principle with approval. 21. This principle was relied upon by the Apex Court in V.D. Jhingan v. State of U.P. : AIR 1966 SC 1762 and also in Vijayee Singh v. State of U.P. (1990) 3 SCC 190 and quoted the aforesaid principle with approval. In Emperor v. U. Damapala : AIR 1937 Rangoon 83, a Full Bench of the Rangoon High Court following the law laid down in this respect in Woolmington’s case, held that the ratio laid down therein is not in any way inconsistent with the law in British India and that indeed the principles there laid down form valuable guide to the correct interpretation of Section 105 of the Evidence Act and the Full Bench of Rangoon High Court further laid down that even if the evidence adduced by the accused fails to prove the existence of circumstances bringing the case within exception or exceptions pleaded, the accused is entitled to be acquitted if upon consid¬eration of the evidence as a whole the Court is left in a state of reasonable doubt as to whether accused is or is not entitled to the benefit of the exception. This view of the Rangoon High Court was reiterated by our Apex Court in the case of Vijayee Singh and also in the case of V.D. Jhingan. Our Supreme Court observed that this principle laid down in the case of Woolmington is also a fundamental part of the English Common Law and same position prevails in the Criminal Law of India. 22. Therefore, whether or not the accused has pleaded exception or whether or not his another plea of defence has been found to be false are all immaterial if after considering all the matters before it the Court is left in a state of reasonable doubt. If the reasonable doubt still lingers as to whether the accused committed any offence as the acts attributed to him were perhaps resorted to in self-defence or in exercise of right or private defence of property, in the circumstances set out in Section 103 of the Penal Code, the benefit thereof must be given to him irrespective of whether he had adduced any evidence to rebut the presumption available against him under Section 105 of the Evidence Act. In fact in Vijayee Singh (supra), it has been laid down by the Apex Court that taking Section 105 as a whole the burden of proof and the presumption have to be considered to¬gether. The accused may raise a plea of exception either by pleading the same specifically or by relying on probabilities and circumstances obtaining in the case. Is it probable as claimed by the prosecution that the appellant and D.W.1 Ura Dei themselves set fire to their own house after the appellant assaulted the deceased ? Then this sense of probability renders the prosecution version highly doubtful. Accused may adduce evidence in support of his plea directly or alternatively rely on the prosecution case itself or that he can indirectly introduce such circumstanc¬es by way of cross-examination and also rely on probabilities and other circumstances. The initial presumption against the accused regarding non-existence of circumstances in favour of his plea gets displaced once on an examination of the material if a reaso¬nable doubt arises, benefit of it must go to the accused. In the very same case of Vijayee Singh (supra), the Apex Court further observed that the phrase “burden of proof” is - not defined in the Act. In respect of criminal cases it is an accepted principle of Criminal Jurisprudence that the burden is always on the prose¬cution and it never shifts. This follows the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt. Section 105 to some extent places the onus of proving any exception in a penal statute on the accused. The burden of proving the existence of circumstances bringing the case within the exceptions mentioned therein is upon him. The Section further lays down that the Court shall presume non-exist¬ence of circumstances bringing the case within an exception. The words “burden of proving the existence of the circumstances” occurring in this Section are very significant. This burden which rests on the accused does not absolve the prosecution from dis¬charging its initial burden of establishing the case beyond reasonable doubt. The accused need not set up a specific plea of self-defence and adduce evidence so long as prosecution does not discharge its onus beyond reasonable doubt. Same principle has been reiterated by the Apex Court in Samsunder v. Puran : (1990) 4 SCC 731 . The accused need not set up a specific plea of self-defence and adduce evidence so long as prosecution does not discharge its onus beyond reasonable doubt. Same principle has been reiterated by the Apex Court in Samsunder v. Puran : (1990) 4 SCC 731 . 23. Following the same principle, it has been again laid down by the apex Court in Onkarnath Singh v. State of U.P. (1975) 3 SCC 276 that the evidence as a whole must be considered, whether it comes from the side of the prosecution or the defence, to determine whether infliction of injuries for which an accused is prosecuted were either proved by balance of probabilities to have been inflicted in the course of exercise of a right of private defence, or, even if the accused fails to do that, it is sufficient to make the prosecution case doubtful on an ingredient of the offence. It is only in one of these two possible situa¬tions that the accused can get an acquittal. In Yogendra Morarjee v. State of Gujarat, : (1980) 2 SCC 218 , it was held by the Apex Court that material for discharging the burden upon the accused under Section 105 of the Evidence Act consists of oral of the documentary evidence, admission appearing in the evidence led by the prosecution or elicited from the prosecution witnesses in cross examination, statement of accused under Section 313, Cr.P.C. etc. From the aforesaid discussion of various authorities of the Apex Court, what is apparent is that the accused can always claim the benefit of general exception under the penal law on the basis of material on record irrespective of whether same was adduced by the prosecution or by the accused. If after considering the materials before it, the Court is left in a state of reasonable doubt as to whether the accused indeed committed the offence for which he has been charged or whether he is entitled to benefit of a general exception engrafted in the penal law of the land, benefit of the same has to be given to him. Likewise, the Supreme Court held in AIR 1968 SC 702 and 1970 CrLJ 1004 that even if an accused does not plead self-defence in any prosecution against him, it is open to the Court to consider such a plea if the same could legitimate¬ly arise from the evidence and material on record. Likewise, the Supreme Court held in AIR 1968 SC 702 and 1970 CrLJ 1004 that even if an accused does not plead self-defence in any prosecution against him, it is open to the Court to consider such a plea if the same could legitimate¬ly arise from the evidence and material on record. Foundation for a plea of self-defence may be available in prosecution evidence itself or in cross-examination of P.Ws. When the materials for bringing the case under any of the general exceptions is availa¬ble from the prosecution evidence itself due to some admissions or other materials on record, the onus upon the accused to dis¬prove the resumption available against him under Section 105 of the Evidence Act stands automatically discharged and he is not required to open his mouth or to discharge any further onus n this respect. In this regard, we may further refer to the deci¬sion of the Apex Court in AIR 1971 SC 1891 . Again in Bahadur Singh v. State of Punjab : (1992) 4 SCC 403, it has been held by the Supreme Court that the circumstances and admissions made by P.Ws relating to Exception 2 of Section 300, IPC can be relief upon by the accused without even raising any specific plea of self-defence. 24. In State of U.P. v. Laxmi (1998) 4 SCC 336 , it was observed by the Supreme Court that it is not the law that failure to set up specific defence would foreclose the right to rely on the exceptions once and for all. It is axiomatic that burden on the accused to prove any fact can be discharged either through the defence evidence or even through prosecution evidence by showing a preponderance of probability or by creating reasonable doubt in the mind of the Court as to the guilt of the accused. Again in Kasiram v State of Madhya Pradesh, 2002 SCC (Cri) 68, it was held by the apex Court that though Section 105 of the Evi¬dence Act annexed a Rule regarding burden of proof but it does not follow therefrom that the plea of private defence should be specifically taken and if not taken shall not be available to be considered though made out from the evidence available in the case. It has been further held by the apex Court in the same decision that a plea of self defence can be taken by introducing such plea in the cross examination of prosecution witnesses or in the statement of the accused persons recorded under Section 313 Cr.P.C. or by adducing defence evidence. And, even if the plea is not introduced in anyone of these three modes, still it can be raised during the course of submissions by relying on the prob¬abilities and circumstances obtaining in the case. It is basic criminal jurisprudence that an accused cannot be compelled to be examined as a witness and no adverse inference can be drawn against the defence merely because an accused person has chosen to abstain from the witness box. In this case, under challenge before the Supreme Court, the High Court was held to have not been right in criticizing and discarding availability of the plea of self-defence to the accused persons on the ground that the plea was not specifically taken by the accused in their state¬ments recorded under Section 313 Cr.P.C. and because the accused did not enter the witness box. 25. After anylysing the aforesaid authorities of the apex Court, what appears important to us is that after considering the entire materials on record, whether adduced by the prosecution or by the accused, Court is left in a state of reasonable doubt as to the guilt of the accused. If after considering the entire evidence on record, the Court is unable to Rule out the possibil¬ity that the accused might have had acted in exercise of the right of private defence though he has not been able to prove the same beyond reasonable doubt or that he did not take any such specific plea, the benefit of such a situation cannot be denied to the accused irrespective of whether he raised such a plea during the trial. As we have already pointed out, Rule of plead¬ing of civil cases is held totally inappropriate in a trial of an accused in a criminal case. As we have already pointed out, Rule of plead¬ing of civil cases is held totally inappropriate in a trial of an accused in a criminal case. In fact, in Yogendra Morarjee v. State of Gujarat, 1980 (2) SCC 218 , the apex Court laid down that there may be cases where despite the failure of the accused to discharge his burden under Section 105 of the Evidence Act, the material brought on record may, in the totality of the facts and circumstances of the case, be enough to induce in the mind of the Court a reasonable doubt with regard to the mens rea requisite for an offence under Section 299 I.P.C. It is needless to mention here that where an accused acts in exercise of right of private defence of his body or property, he has full justification for the acts attributed to him and therefore, he has no mens rea within the meaning of Section 299 I.P.C. In Mahinder Pal v. State of Punjab, AIR 1979 SC 577 the Supreme Court held that onus is on the accused to establish the right of private defence of property or person not on the basis of standard of proving it beyond reasonable doubt, but on the theory of preponderance of probabil¬ity. He might or might not take this plea explicitly or might or might not adduce any evidence in support of it but he can still succeed in his plea if he is able to bring out materials in the records of the case on the basis of the evidence of prosecution witnesses or on other pieces of evidence to show that apparently the criminal act which he committed was justified in the exercise of his right of private defence of property or person or both. Ultimately test in such circumstances is whether after consider¬ing the entire evidence on record, the Court is left in a state of reasonable doubt as to the guilt of the accused and if that test is satisfied and the Court is left in a state of reasonable doubt as to the guilt of the accused, the benefit thereof must go to the accused and not to the prosecution as the burden upon the prosecution is to prove its case beyond all reasonable doubt and that burden is constantly upon the prosecution and it never shifts. The aforesaid being the position of law, and in the cir¬cumstances of a particular case, Court has a duty to see whether it can find a plea of general exceptions in favour of the accused on the basis of evidence on record. This is the consistent view of the Apex Court since many years. This is also the common law obtaining in England and same principle has been applied in this country for almost a century. 26. Deceased and is brothers came in a body to the house of the appellant. Was it really an innocent act ? It does not seem to be so. 27. We have already seen while discussing the evidence on record that the F.I.R. of the instant case before us does not contain even a whisper that house of the appellant was gutted by fire. For the first time before the trial Court prosecution wit¬nesses came with a plea that after the appellant assaulted the deceased he himself along with D.W.1 set fire to his house. This sounds to be totally incredible. This credibility gap compels us to hold that defence version may be true. The appellant has also adduced evidence in his favour from which it appears that it is the deceased and his party, who had assaulted D.W.1 Ura Dei first and thereafter started to set fire to the house of the appellant. After the house was set on fire, there was fight between the two parties. However, the appellant did not adduce any evidence as to who had assaulted the deceased. But it must be understood that there may be many psychological factors responsible for the ac¬cused not stating expressly that he was the author of the injury in¬flicted on the head of the deceased. It is needless to mention here that all are not equally bold and courageous to candidly say that he killed the man and such act of killing was justified in the circumstances of case as he acted in self-defence. For fai¬lure of the accused to take such a bold plea expressly, we cannot deny him benefit of right of private defence if after considering the entire evidence on record Court is at least left in a state of reasonable doubt as to the guilt of the accused. The law of self-defence springs from the primordial instinct of self-preservation. For fai¬lure of the accused to take such a bold plea expressly, we cannot deny him benefit of right of private defence if after considering the entire evidence on record Court is at least left in a state of reasonable doubt as to the guilt of the accused. The law of self-defence springs from the primordial instinct of self-preservation. Byron said that “Self-defence is a virtue and sole bulwork of all right.” Similarly Shakespeare said “measure for measure must be answered.” Dryden described the self-defence as the nature’ oldest law. In the Code of Manu in sutras 350 and 351, chapter viii, it was written as follows :- “One may slay without hesitation an assassin who approaches with murderous intent, whether he be one’s own teacher, a child or an aged man or a Bhrahmana deeply versed in Vedas”. 28. This was stated by Manu around 1280 B.C. Therefore, this right of self-defence was recognized as a valuable right at the dawn of human civilization. Instinct of self-preservation is, therefore, a primoidial instinct. Dicey rightly remarked ‘The Rule which fixes the limit to the right self-help must, from the nature of things, be a compromise between the necessity, on the one hand, of allowing every citizen to maintain the right against wrong-doers, and the necessity, on the other hand , of suppress¬ing private warfare. By discouraging self-help and loyal subjects become the slaves of ruffians; over stimulate self-assertion and for the arbitrament of course you substitute the decision of the sword or the revolver. Therefore, right of self-help is subject to limitations as prescribed by law. 29. The aforesaid being the position of law, we are unable to Rule out the possibility that it was deceased party that as¬saulted D.W.1 Ura Dei and thereafter set fire to the house of the appellant first and in these circumstances, we are equally unable to Rule out the possibility that the appellant might have had inflicted blow with an axe on the head of the deceased. If we are unable to Rule out such a possibility, we are constrained to observe that we are left in a state of reasonable doubt as to the guilt of the accused as we are unable to Rule out the possibility that perhaps the appellant had justification in the aforesaid circumstances to inflict the injuries to the deceased who ul¬timately succumbed. In view of the nature of the medical evidence on record, we are of further view that appellant did not act with cruelty to wreak his vengeance on the deceased. As we are unable to Rule out this possibility and assault on the deceased might have been preceded by assault on D.W.1 Ura Dei and the incident of arson committed in the house of the appellant, we are con¬strained to hold that the prosecution has failed to prove its case beyond all reasonable doubt. It is of course true that though D.W.1 had claimed that an F.I.R. was lodged with the police, but police did not take any action. It is a matter of common knowledge in our country that on many occasions though complaint lodged, as to the commission of cognizable offence, police does not always act on such complaints. It is equally true that no documentary evidence has been adduced on behalf of the appellant that on police requisition D.W.1 Ura Dei was given medical treatment in a hospital. We find from the deposition sheet of D.W.1 Ura Dei that she is completely illiterate having given her L.T.I. in the deposition sheet as recorded by the trial Court. In these circumstances, we are equally unable to reject the version of the appellant and D.W.1. 30. In the aforesaid circumstances, and in view of the position of law, as to right of private defence of property against arson in a dwelling house, we are unable to rule out the possibility that perhaps the appellant was justified to inflict the injury on the head of the deceased to which he ultimately succumbed and in view of such justification we are further con¬strained to hold that the prosecution has not been able to prove the guilt of the appellant beyond all reasonable doubt. In view of the aforesaid conclusion, the impugned judgment cannot be sustained. We have no hesitation in our mind to further hold that in the circumstances of the case, conviction of the appellant was not warranted. Accordingly, we allow this appeal and set aside the impugned judgment of conviction and sentence. We further direct that the appellant shall be set at liberty forthwith. L. MOHAPATRA, J. I agree. Appeal allowed.