JUDGMENT R.L. Khurana, J.:-The appellant, Manjeet Singh, hereinafter referred to as the accused, by virtue of the present appeal has assailed the conviction and sentence as imposed upon him by the learned Additional Sessions Judge, Shimla, for the offences under Section 302 and 324, Indian Penal Code, and under Section 27 of the Arms Act, 1959, vide judgment dated 27.3.2002. 2. The matrix of the prosecution case may be thus stated PW5 Jaipal is running a taxi in Shimla. On 31j1 2.2000 at about 9 p.m. he had gone to Hotel Apsra at Cart Road, Shimla, to inquire from PW8 Budhi Singh, Manager of the Hotel regarding the booking of his taxi by some passenger staying in the Hotel. PW-8 asked PW5 to come after some time. Both PW5 and PW-8 then went together to Hotel Basant for celebrating New Year eve. They wined and dined together at Hotel Basant till about midnight. PW-8 Budhi Singh returned to Hotel Apsra while PW5 Jaipal came towards Cart Road where PW6 Romi Kapoor. PW7 Pawan Kumar, Deep Chand and Rajnish alias Rintu met him and inquired about the booking of a room in the Hotel as earlier agreed upon. PW5 Jaipal went to Hotel Apsra. He did not find PW8 Budhi Singh there. He, therefore, went upstairs in the Hall of the Hotel where he found accused Manjeet Singh along with S/Shri Balraj and Surender Kumar present there taking liquor. PW5 Jaipal inquired from the accused about the Manager of the Hotel to which the accused is alleged to have retorted that he was not the Chowkidar of the hotel so as to know and tell about the Manager. Accused is further alleged to have started abusing PW5 Jaipal by proclaiming that he was serving in Punjab Police. The accused is further alleged to have started beating PW5 Jaipal by giving him a fist blow on his mouth. PW5 Jaipal ran outside. He was met by the above-named Romi Kapoor (PW-6), Deep Chand, Pawan Kumar (PW7) and Rajnish. He narrated the incident to them. S/Shri Romi Kapoor (PW6), Rajnish alias Rintu and PW7 Pawan Kumar went inside the Hall while PW5 Jaipal and one Roshan remained standing at the entrance of the Hotel. Rajnish alias Rintu inquired from the accused as to the cause for his having given beatings to PW5 Jaipal. He narrated the incident to them. S/Shri Romi Kapoor (PW6), Rajnish alias Rintu and PW7 Pawan Kumar went inside the Hall while PW5 Jaipal and one Roshan remained standing at the entrance of the Hotel. Rajnish alias Rintu inquired from the accused as to the cause for his having given beatings to PW5 Jaipal. The accused is alleged to have told his companions, S/Shri Balraj and Surender Kumar to tell Rajnish and his friends about the cause of the beating to PW5 Jaipal. S/Shri Balraj and Surender Kumar are then alleged to have abetted and instigated the accused by saying "Carbine Ka Kamal Dekhao". Whereupon accused is alleged to have fired shots from his carbine, which hit Rajnish alias Rintu, PW6 Romi Kapoor, PW5 Jaipal and PW7 Pawan Kumar. Rajnish alias Rintu sustained two shots on his chest and he fell down on the ground. The accused and Balraj are alleged to have run away after the gun shots. PW5 Jaipal lifted Rajnish alias Rintu and carried him to I.G.M.C. Hospital, Shimla, where he was declared dead. 3. On the telephonic message of one Pradeep Kumar, PW25 Jagdish Ram, Station House Officer, Police Station Sadar reached the spot. The abovenamed Surender Kumar, a companion of the accused, was apprehended from the toilet of the Hotel. Since the injured persons had already been taken to the Hospital, PW25 went to the Hospital and recorded the statement of Ex. PW5/A 6f PW5 Jaipal under Section 154, Code of Criminal Procedure, on the basis of which a case for the offences under Section 302, 307 and 323 read with Section 34 Indian Penal Code, came to be formally registered vide F.I.R. No. 1/2001 (Ext. PW19/A). 4. During the course of investigation the dead body of the deceased was got subjected to post-mortem examination, which was conducted by PW24 Dr. V.K. Mishra. He found the following two ante-mortem bullet injuries on the person of the deceased Rajnish alias Rintu: (i) A circular wound of entry one centimeter in diameter, 1.5 cm. media to right nipple, 18 cm. below right shoulder joint. Dry clotted blood was present around the wound. There was no blackening, tattooing, singeing, burning etc. (ii) A circular wound of entry 1 cm. x 1/2 cm. between the base of 1st and 2nd metatarsal bone of left foot, dorseum with dry clotted blood present around the wound. media to right nipple, 18 cm. below right shoulder joint. Dry clotted blood was present around the wound. There was no blackening, tattooing, singeing, burning etc. (ii) A circular wound of entry 1 cm. x 1/2 cm. between the base of 1st and 2nd metatarsal bone of left foot, dorseum with dry clotted blood present around the wound. No blackening, tattooing, singeing, burning etc. noticed over the skin. 5. In the opinion of PW24, the deceased had died due to haemorrhagic shock as a result of laceration of lung due to gun shot injury. 6. PW5 Jaipal, PW7 Pawan Kumar and PW6 Romi Kapoor were also got medically examined. PW1 Dr. M.P. Singh, who conducted such medical examination, found the following injuries on their persons. PW5 Jaipal. (i) A CLW 1.5 cm. in size placed in the middle of inner side of upper lip placed obliquely upwards and lately on the left side. Reddish scabing over lip was present with clotted blood; (ii) A bruise 1 cm x 0.5 cm reddish blue in colour over upper lip in the centre placed vertically. 7. Both the injuries were opined to be of simple in nature having been caused with a blunt weapon within the probable duration of 24 hours. PW6 Romi Kapoor. (i) A CLW 1 cm x 0.5 cm. x 1 cm in size placed horizontally on lateral side of left upper arm on lower part of deltoid muscle. Red in colour with dark edges depressed; (ii) A CLW 1 cm x 0.5 cm x 1 cm in size placed horizontally approximately 2.5 cm lateral to first wound on lateral side of left upper arm on lower side of deltoid muscle with irregular margins. Margins elevated, red in colour. Both the injuries were opined to be gun shot injuries and dangerous to He. PW7 Pawan Kumar. (i) A CLW over right foot approximately 5 cm above tip of right big toe placed horizontally 1 cm x 0.5 cm. x 1 cm in size with irregular margins. Red in colour; (ii) A bruise bluish in colour 1 cm x 0.5 cm in size placed obliquely over fifth metatarsophalengel joint running lately on right foot. 8. The accused Manjeet Singh too was subjected to medical examination, which was carried out by PW2 Dr. x 1 cm in size with irregular margins. Red in colour; (ii) A bruise bluish in colour 1 cm x 0.5 cm in size placed obliquely over fifth metatarsophalengel joint running lately on right foot. 8. The accused Manjeet Singh too was subjected to medical examination, which was carried out by PW2 Dr. Dinesh Rana on 1.1.2001 at about 5.55 p.m. The accused at the time of such medical examination complained of pain in the fifth knuckle region of the left hand. X-ray was advised. However, local examination revealed the presence of a red colour contusion and swelling on such knuckle region. The accused also complained of breaking of upper incisor tooth. He was referred to Dental Surgeon. On the basis of dental opinion, such injury was opined to be of a simple nature having been caused within the probable duration of 24 hours. 9. Balraj, a companion of the accused, was also medically examined by PW2 Dr. Dinesh Rana. Following injuries were found on his person. (i) 4 cm x 1 cm abrasion over the dorsum of right fore-arm; (ii) 1.5 cm x 1.5 cm round abrasion red in colour, above the writ(?) joint; (iii) 3.5 cm. x 2 cm abrasion, red in colour with linear scratch in the mid, 3 cm outer aspect of the left knee joint; (iv) Multiple irregular abrasions on the entire lateral aspect of the left lower leg. Red in colour; and (v) Small irregular abrasion on the left side of the forehead. Red in colour. 10. All the injuries were opined to be of simple nature having been caused with a blunt weapon within the probable duration of 24 hours. 11. The other companion of the accused, namely, Surender Kumar was medical examined by PW4 Dr. Rajnish Sharma on 1.1.2001 at about 4.35 a.m. One injury, that is, laceration over the forehead 1.5 cm x 1 cm x 0.5 cm was found. He was smelling of liquor and there was slurring of speech. The injury was simple in nature having been caused with a blunt weapon with the probable duration of 6 hours. 12. PW26 Gulam Mohd. Additional Station House Officer of Police Station Sadar, who had partially investigated the case, took into possession the carbine Ex. P4 with empty magazine vide memo Ex. PW5/C on the same having been produced before him by the accused. Six live cartridges Ex. 12. PW26 Gulam Mohd. Additional Station House Officer of Police Station Sadar, who had partially investigated the case, took into possession the carbine Ex. P4 with empty magazine vide memo Ex. PW5/C on the same having been produced before him by the accused. Six live cartridges Ex. P1 to P6 were also produced by the accused, which were taken into possession vide memo Ex. PW5/D by PW26. Six empty cartridges were taken into possession from the spot by PW26 vide memo Ex. PW5/E. Service belt of the accused, which was lying on the bed in the Hall of the Hotel was also taken into possession vide memo Ex. PW5/F. 13. The Ballistic Expert to whom the carbine, live and empty cartridges were sent for examination, vide report Ex. PW25/E has opined that the empty cartridges were fired from the carbine Ex.P4. 14. On completion of the investigation, the accused along with his two companions Balraj and Surinder Kumar were sent up for trial. 15. The accused was charged for the substantive offences under Section 302 and 307, Indian Penal Code, and under Section 27 of the Arms Act, 1959. His two companions, Balraj and Surinder Kumar, were charged for the offence under Section 114 read with Sections 302 and 307, Indian Penal Code, for having abetted and instigated the commission of the offences under Section 302 and 307, Indian Penal Code, by the accused. 16. The accused and his two companions pleaded not guilty to the charge and claimed trial. 17. The prosecution in support of its case examined as many as 26 witnesses. 18. The case of the accused as well as his two companions is that of denial and false implication. Two witnesses were examined by the accused in defence to show that neither the accused nor his companions taken liquor. 19. The learned Additional Sessions Judge, on consideration of the evidence coming on the record, vide the impugned judgment, convicted and sentenced the accused Manjeet Singh as under:- 1. Section 302, Indian Penal Code Imprisonement for life and fine of Rs.5000/-. In default of payment of fine, simple imprisonment for a further period of one year. 2. Section 324, Indian Penal Code Imprisonment for six months and fine of Rs.500/-. In default of payment of fine, simple imprisonment for a further period of one month. 3. Section 302, Indian Penal Code Imprisonement for life and fine of Rs.5000/-. In default of payment of fine, simple imprisonment for a further period of one year. 2. Section 324, Indian Penal Code Imprisonment for six months and fine of Rs.500/-. In default of payment of fine, simple imprisonment for a further period of one month. 3. Section 27, Arms Act Imprisonment for three months and fine of Rs.1000/-. In default of payment of fine, simple imprisonment for a further period of one month. 20. The accused was acquitted of the offence under Section 307, Indian Penal Code. The two companions of the accused, namely, Balraj, and Surender Kumar were also acquitted of the offence charged against them. 21. Assailing the conviction and sentence as imposed upon the accused by the learned trial Judge, the learned Counsel for the accused has contended that the genesis of the occurrence was different from what the prosecution has suggested and projected. In fact, the occurrence has taken place in the manner suggested by the accused in his defence. According to the accused, the deceased and his companions, that is, PW5 Jai Pal, PW6 Romi Kapoor, PW7 Pawan Kumar and others were the aggressors and the accused had only acted in exercise of the right of private defence ft was contended that the deceased and his companions had made a forcible entry into the Hall of the Hotel and started beating the accused and his two friends and in such course they had tried to snatch the carbine, which went of during the scuffle. 22. It is pertinent to note that neither the accused nor his two companions in the statements recorded under Section 313, Code of Criminal Procedure, has stated that the deceased and his companions were the aggressors and that the accused was acting in exercise of the right of private defence. In fact, their case is that-of total denial. It is also not in the statement of the accused that he or his companions received the injuries at the hands of the deceased and/or his companions. As attempt has been made to set up the case of private defence only during the course of cross examination of the witnesses of the prosecution especially, PW5, PW6, PW7, PW9 and PW12. 23. As attempt has been made to set up the case of private defence only during the course of cross examination of the witnesses of the prosecution especially, PW5, PW6, PW7, PW9 and PW12. 23. It is by now well settled that even if the accused has not pleaded self defence, it is open to the Court to consider such a plea if the same arises from the material on record. The burden of establishing the plea of self defence is on the accused and such burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material available on the recored. 24. The Honble Supreme Court in Dominic Varkey v. The State of Kerala, AIR 1971 SC 1208 has held:- ".......Broadly stated, the right of private defence rests on three ideas first, that there must be no more harm inflicted than is necessary for the purpose of defence; secondly, that there must be reasonable apprehension of danger to the body from the attempt or threat to commit some offence and, thirdly, the right does not commence until there is a reasonable apprehension. It is entirely a question of fact in the circumstances of a case as to whether there has been excess of private defence within the meaning of the 4th clause of Section 99 of the Indian penal Code namely, that no more harm is inflicted than is necessary for the purpose of defence. No one can be expected to find any pattern of conduct to meet a particular case. Circumstances must show that the Court can find that there was apprehension to life or property or of grievous hurt. If it is found that there was apprehension to life or property or of grievous hurt the right of private defence is in operation. The person exercising right of private defence is entitled to stay and overcome the threat." 25. It has further been held that the apprehension is in the mind of the person exercising the right of self defence and the apprehension is to be ascertained objectively with reference to the events and deeds at the crucial time and in the total situation of the surrounding circumstances. 26. Under Section 96, Indian Penal Code, nothing is an offence which is done in the exercise of right of private defence. 26. Under Section 96, Indian Penal Code, nothing is an offence which is done in the exercise of right of private defence. Section 97, Indian Penal Code provides that subject to the restrictions contained in Section 99, every person had a right to defend - (i) his own body and the body of any other person against any offence affecting the human body; and (ii) the property, whether movable or immovable of himself or of any other person against any act which is an offence falling within the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit these offences. 27,. Section 102, Indian Penal Code, which deals with the commencement and continuance of the right of private defence of the body, provides - "102. Commencement and continuance of the right of private defence of the body. - The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as apprehension of danger to the body continues." / 28. Dealing with the scope of Section 102, Indian Penal Code, the Apex Court in Deo Narain v. State of U.P., 1973 Cr. L.J. 677 has held :- ".............the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed, and such right / continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent and not remote or distant danger. This right rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repel that force in self-defence. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right. The right to punish for the commission of offences vests in the State (which has a duty to maintain law and order) and not in private individuals. If after sustaining a serious injury there is no apprehension of further danger to the body then obviously the right of private defence would not be available. In our view, therefore, as soon as the appellant reasonably apprehended danger to his body even from a real threat on the part of the party of the complainant to assault him for the purpose of forcibly taking possession of the plots in dispute or of obstructing their cultivation, he got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right." 29. Section 97 to 106, Indian Penal Code, prescribes the extent and limitations of the right of private defence. From a plain reading of these sections, it is manifest that such a right can be exercised only to repeal unlawful aggression and not to retaliate. To put it differently, the right is one of defence and not of requital or reprisal. (See Rajesh Kumar v. Dharamvir and others, 1997 Cri. L.J. 2242.) 30. In Bhaiya Bahadur Singh v. State of Madhya Pradesh, AIR 1996 SC 3373, it has been held :- "When an accused person sets up a plea of self defence, the onus to establish that plea lies on him. It is well established that the accused is not required to prove that plea beyond reasonable doubt but has merely to show it as probable. The onus to probabilise the defence version, from the salient facts and circumstances appearing in the prosecution case, or otherwise set up by the accused in the form of defence evidence, is always on him." 31. The evidence coming on the record of the present case, therefore, has to be examined in the light of the above stated legal position. 32. In the present case, simple injuries with blunt weapon are shown to have been sustained by the accused and his two companions. None of such injuries is on the vital part of the body. 33. The evidence coming on the record of the present case, therefore, has to be examined in the light of the above stated legal position. 32. In the present case, simple injuries with blunt weapon are shown to have been sustained by the accused and his two companions. None of such injuries is on the vital part of the body. 33. The Honble Supreme Court in Moti Singh v. State of Maharashtra, JT 2002(2) SC 133 has held that the dimension of the injuries may not be serious, it is the situs of the injuries that would indicate whether the accused could reasonably entertain the apprehension that at least grievous injuries/hurt would be caused to him/them by the assaulters unless aggression is thwarted. 34. There is nothing on the record to show that the deceased and his companions were armed. The evidence coming on record shows that they were in fact unarmed. 35. Though the accused in his statement recorded under Section 313, Code of Criminal Procedure, has not claimed and stated that he and his companions were assaulted by the deceased and his party and that he and his companions had sustained the injuries during such assault, the evidence coming on the record does not rule out of possibility of the accused and his companions having sustained the injuries during the occurrence. 36. The learned Counsel for the accused has vehemently contended that the prosecution has suppressed the injuries sustained by the accused and his two companions and that by itself is sufficient to throw out the case of the prosecution since such injuries have remained unexplained, therefore, the version of the accused having acted in self defence ought to be accepted. . 37. Dealing with the question as to the effect of non-explanation of the injuries on the person of the accused, the Honble Supreme Court in Onkarnath Singh and others v. The State of U.P., AIR 1974 SC 1550 has held that" this is a question of fact and not one of law. Answer to such question depends upon the facts and circumstances of each case and that entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused. Answer to such question depends upon the facts and circumstances of each case and that entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused. It was further held:- ".....Such non-explanation, however, is Advocate(s): factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the court will scrutinize their evidence with care. Each case presents its own features. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie, established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self defence by the complainant party. For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides received injuries, no question of private defence arises. 38. In Takhaji Hiraji v. Thakore Kubersing Chamansing and others, 2001(6) SCC 145, no doubt it has been observed that prosecution is under duty to explain the injuries on the accused persons, but it has further been observed that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so, the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused may affect the prosecution case, the Court has to be satisfied with two conditions, namely - (a) that the injury on the person of the accused was of a serious nature; and (b) that such injury must have been caused at the time of occurrence in question. 39. Before non-explanation of the injuries on the persons of the accused may affect the prosecution case, the Court has to be satisfied with two conditions, namely - (a) that the injury on the person of the accused was of a serious nature; and (b) that such injury must have been caused at the time of occurrence in question. 39. It has also been further observed that where the evidence is clearly, cogent and credit worthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case. 40. The above principle was re-iterated in State of M.P. v. Sardar, 2001(6) SC 433. 41. In Rajender Singh and others v. State of Bihar, 2000(4) SCC 298 dealing with a similar proposition, it has been held that non-explanation of the injuries on the person of the accused, ipso facto cannot be held to be fatal to the prosecution case. Ordinarily, the prosecution is not obliged to explain each and every injury on the person of the deceased even though such injuries might have been caused during the course of the occurrence and they are minor in nature. But where the injuries are grievous, non-explanation of such injuries would attract the Court to look at the prosecution case with little suspicion on the ground that the prosecution has suppressed the true version of the incident. 42. Following the above settled principle and having examined the evidence of the eye-witnesses, especially the injured, namely, PW5 Jaipal, PW6 Romi Kapoor and PW7 Pawan Kumar, who are trust-worth?, we hold that the non-explanation of the injuries on the person of the accused and his two companions cannot be held fatal to the prosecution case. We are also in agreement with the conclusion of the learned trial Judge that the accused cannot be said to have acted in the exercise of right of private defence. The evidence coming on record conclusively proves that the accused himself was the aggressor. The deceased and his companions, namely, PW5, PW6 and PW7 appear to have acted in private defence and caused the injuries to the accused. 43. The evidence coming on record conclusively proves that the accused himself was the aggressor. The deceased and his companions, namely, PW5, PW6 and PW7 appear to have acted in private defence and caused the injuries to the accused. 43. As point out above, the deceased, and his companions were unarmed, the accused was armed with a carbine. The injuries on his person are simple in nature. It cannot be expected that the accused apprehended danger to his life or grievous hurt at the hands of the deceased and his companions, who were unarmed so as to give him the right of private defence. Such right, if any, only arose to the deceased and his companions since the accused was armed with a deadly weapon, that is, carbine. 44. PW9 Satish Kumar, an independent witnesses who was also staying and sleeping in the Hall where the occurrence had taken place, though was declared hostile, has admitted the correctness of the prosecution story in the following terms :- "It is correct that when I woke up on hearing the noise, I saw a boy coming in the hall and inquiring about the manager from the accused Manjit. It is correct that one of the associates of accused Manjit i.e. one driver stated that we are not Chowkidar, so you tell the Manager. K is correct that upon this accused persons started beating that boy and thereafter other associates of that boy also came in the hall of that hotel after about 5-7 minutes." In answer to Court question, PW9 has stated:- "The driver who was with accused Manjit was heavily drunk and was also abusing the other party and Manjit accused tried to prevail upon him and thereafter said driver attempted to assault those 4-5 persons present in the hall and thereafter free fighting between the parties." 45. The above statement of PW9 lends support to the prosecution story to show that it was the accused who was the aggressor and that the accused had not acted in private defence. 46. For the foregoing reasons, the accused stands rightly convicted and sentenced for the offences under Section 302 and 324, Indian Penal Code and under Section 27, Arms Act, 1959. Such conviction and sentence does not call for any interference. 47. Resultantly, the present appeal is dismissed. -