AMAR SARAN, J. This Criminal Appeal arises from the judgment and order dated 28-3-1981 passed by the Additional Sessions Judge-I, Azamgarh in Sessions Trial No. 181 of 1978 whereby the appellant has been convicted under Sections 304 Part-I IPC and 323 IPC and sentenced to ten years RI and one year RI respectively for the aforesaid offences. However, both the sentences were directed to run concurrently. 2. Initially, there were four accused persons in this case, but three accused persons namely Rajendra Nath, Ripusudan and Sarvjeet were acquitted by the trial Court by the aforesaid judgment and only the appellant was convicted as aforesaid. 3. Shortly stated, the prosecution case was that the informant Sheo Harakh, son of Algoo Yadav had a shop in Rajendra Nagar, (Adampur) in District Azamgarh. On 28-5-1976 at about 5. 30 p. m. the appellant arrived at the shop of the informant to purchase soap and spices. The appellant wanted to purchase the aforesaid items at a lesser price, which was not agreed to by the informant, hence the appellant started abusing the informant. On the objection of informant, the appellant departed and thereafter arrived there with the co-accused Rajendra Nath, Ripusudan and Sarvjeet. They assaulted the informant with lathies. On the informants cries, his father Algoo, and his uncle Ramdeo, who arrived there were also belaboured with lathies. Some other witnesses also arrived at the spot who saved the life of the informant, his father and his uncle. Informants father Algoo become unconscious as a result of the assault. Informant Sheo Harakh alias Harsh Yadav alias Ram Harakh scribed the report (Ext. Ka-1) and proceeded to police station Madhuban carrying his injured father and uncle on a bullock cart. He lodged the report at the police station, which was three miles away, on 28-4-1976 at 9. 05 p. m. Head Moharrir, Praduman Rai PW 5 took down the chik F. I. R. on the basis of the informants written report. He prepared the letter for medical examination and sent the injured to the P. H. C. , Madhuban. 4. Dr. M. L. Jaiswal, PW 7, Medical Officer at the P. H. C. Fatehpur Mandav conducted medical examination of the injured Ramdeo on 25- 4-1976 at 10. 30 p. m. as no doctor was available at the Madhuban State Dispensary. He found the following injuries on the person of Ramdeo: " (1) Contusion 17. 4. Dr. M. L. Jaiswal, PW 7, Medical Officer at the P. H. C. Fatehpur Mandav conducted medical examination of the injured Ramdeo on 25- 4-1976 at 10. 30 p. m. as no doctor was available at the Madhuban State Dispensary. He found the following injuries on the person of Ramdeo: " (1) Contusion 17. 7 cm x 3. 4 cm longitudinally placed on the right side back, colour red. (2) Contusion 13 cm x 2. 5 cm on the middle of back, transversely placed, colour red. (3) Contusion 10 cm x 2. 8 cm right side back in the middle transversely placed just above the injury No. 2. (4) Swelling 3. 4 cm x 2 cm on the back of right side neck. (5) Abrasion 0. 9 cm x 0. 8 cm on the front and upper left knee joint. (6) Abrasion 1 cm x 1 cm on the front and lower part of left knee joint. (7) Complained of pain on the left thigh and right knee joint, but there was no mark of any external injury. " 5. The above injuries are mentioned as Ext. Ka-8. 6. As the condition of his father Algoo was serious, he was sent to Sadar Hospital by the doctors of P. H. C. , Azamgarh. As the informant could not get any transport on that day, he took his father to the Sadar Hospital on the next day, i. e. 29-4-1976. However, Algoo died on 29-4-1976 at about 10. 25 a. m. without ever recovering from unconsciousness. 7. Post-mortem examination on the body of Algoo was conducted on 30-4-1976 by Dr. R. R. Roy, PW 8 at the District Hospital, Azamgarh. Dr. Roy found that Algoo was about 60 years of age and a man of average built. Rigor mortis was absent in upper limbs and slightly present in lower limbs. He found the following anti- mortem injury on the person of Algoo: " (1) Lacerated wound 1" x 1/2" on the right side head, 4" above right ear. Wound was bone deep. (2) Abraded contusion 1" x 1/2" on the right shoulder. (3) Abraded contusion 3/4" x 1/2" on the upper part of right scapular region back. (4) Abraded contusion 1" x 1/3" on the right shoulder just back to the root of neck. (5) Abraded contusion 1" x 1/2" on the back of neck upper part. Wound was bone deep. (2) Abraded contusion 1" x 1/2" on the right shoulder. (3) Abraded contusion 3/4" x 1/2" on the upper part of right scapular region back. (4) Abraded contusion 1" x 1/3" on the right shoulder just back to the root of neck. (5) Abraded contusion 1" x 1/2" on the back of neck upper part. (6) Abraded contusion 1-1/2" x 1/2" on the right side back upper part. On internal examination Dr. Rai found fracture of parietal bone, both sides, in one line under injury No. 1. Membranes were also found lacerated. Brain matter was also lacerated and clotted blood seen. The stomach was empty. According to Dr. Rai, the death was due to coma on account of the head injury. The post-mortem report on the record is Ext. Ka-9. Dr. Rai has said that all the ante- mortem injuries, found on his person, were quite possible by lathi. He has also said that there is possibility of his having become unconscious soon after he received the head injuries. " 8. The investigating officer SI N. B. Singh, PW 6 started the investigation of this case on 29-4-1976 as he was absent from the police station on 28-4-1976. However, he visited the place of incident only on 30-4- 1976 where he learnt that the deceased Algoo had died at the Sadar Hospital. All the shops near the shop of Algoo, the deceased were shut. He unsuccessfully searched for the accused. On 2-5-1976 he again reached the place of incident and recorded the 161 Cr. P. C. statement of informant Harsh Nath Yadav, PW 1, Ramdeo, the injured, PW 2 Sheo Prasad, Tilakdhari and Kedar Yadav. He prepared site-plan Ext. Ka-6 on the pointing out of the witnesses. On 7-5-1976 he recorded the 161 Cr. P. C. statement of Mauji. PW 3 and some other witnesses who have not been examined in this case. By then the accused had surrendered to custody and obtained bail. After completing the investigation, he submitted charge- sheet Ext. Ka-7 on 30-5-1976. Initially the case was registered under Section 308 IPC, but after the death of Algoo it was converted under Section 304 IPC. PW 3 and some other witnesses who have not been examined in this case. By then the accused had surrendered to custody and obtained bail. After completing the investigation, he submitted charge- sheet Ext. Ka-7 on 30-5-1976. Initially the case was registered under Section 308 IPC, but after the death of Algoo it was converted under Section 304 IPC. Later, however, a charge under Section 302/34 IPC for committing the murder of Algoo and a charge under Section 323/34 IPC for causing hurt to Ramdeo was framed against the appellant and three other accused, who have been acquitted by the trial Court on 8- 12-1979. The accused pleaded not guilty and claimed to be tried. 9. In support of its case, the prosecution has examined Sheo Harakh, PW 1, the informant and son of the deceased Algoo, Ramdeo, PW 2, the brother of the deceased and an injured witness and Mauji, PW 3 another eye-witnesses in this case. Among the other witnesses, Ram Pyare Lal, PW 4, was a formal witness, who carried the dead-body for post-mortem, Head Moharrir was Praduman Roy, PW 5, SI Narendra Bahadur Singh, PW 6 was the investigating officer of the case, and Dr. M. L. Jaiswal, PW 7, who conducted the medical examination of the injured Ram Deo. He also medically examined appellant Anil alias Arvind alias Roodal on the same day, i. e. 27-4-1976 at 8 p. m. He prepared the injury report of the appellant Anil Kumar alias Arvind Kumar, which is Ext. Kha-2. Following injuries were found on his person: " (1) Lacerated wound 2. 4 cm x 0. 3 cm x muscle deep, longitudinally placed on the mid line of head. 4 cm posterior to the hair line, fresh bleeding present. (2) Heamotoma 2. 4 cm x 2 cm on the top of head. (3) Abraded contusion 3. 9 cm x 0. 6 cm on the right side forehead, 1 cm above the left eyebrow. Colour of the contusion was red. Oozing of serum was found from wound. (4) Abraded contusion 6 cm x 3. 6 cm right side face right lateral angle of right eye, covering the orbital bone. (5) Swelling 3 cm x 2 cm on the lateral aspect of middle and left of upper arm. (6) Linear abrasion 0. 6 cm x 0. 1 cm on the post and lower 1/3rd left forearm 2. (4) Abraded contusion 6 cm x 3. 6 cm right side face right lateral angle of right eye, covering the orbital bone. (5) Swelling 3 cm x 2 cm on the lateral aspect of middle and left of upper arm. (6) Linear abrasion 0. 6 cm x 0. 1 cm on the post and lower 1/3rd left forearm 2. 5 cm above the left wrist joint. Margins were regular, longitudinally placed, fresh bleeding was present. (7) Traumatic swelling 3. 5 cm x 2 cm on the posterior of left wrist joint. (8) He complained of pain on the neck but no external injury was seen. " 10. According to the doctor, all these injuries were simple. Except injury No. 6, all these injuries were possible by blunt object. The injury No. 6 was possible by friction with some pointed object. The duration was fresh. 11. PW 8, Dr. R. R. Roy conducted the post-mortem examination of the deceased, and found the ante- mortem injuries on the deceased have been described hereinabove. 12. One witness Ram Jagi Singh, SI Nijamabad was examined as Court witness, CW-I. He proved the handwriting of ASI Ram Ji Singh, who had been transferred and with whose handwriting he was familiar. He stated that Ram Ji Singh had filled up inquest, khaka laash chalani, report, report for post-mortem and report for taking clothes in possession after post-mortem, which are marked as Ext. C-2 to C-5. 13. PW 1, sheo Harakh, informant of this case, had stated that he had a shop at the side of the road in Mohalla Adampur. The appellant Anil also had a flour mill at a distance of one km. from his shop. On the date of incident at about 5. 30 p. m. , the shop was open. At that time, his father Algoo and relation Kedar were sitting there when the appellant arrived and asked for two bars of 501 soap and spices worth rupee one. The appellant was only agreeing to pay the appellant Re. 1 for the purchases at that time. PW 1 said that he would not give anything on advance and whereupon the appellant started abusing him. When his father checked the appellant, the appellant left for his flour mill in a huff. He returned after 5-10 minutes accompanied by Rajendra Rai, Ripusudan Ram and Sarvajeet Rai carrying lathies. 1 for the purchases at that time. PW 1 said that he would not give anything on advance and whereupon the appellant started abusing him. When his father checked the appellant, the appellant left for his flour mill in a huff. He returned after 5-10 minutes accompanied by Rajendra Rai, Ripusudan Ram and Sarvajeet Rai carrying lathies. When Anil Kumar, the appellant entered his shop via its chhappar (thatched roof) then he was injured on his head from that chhappar. In the shop he started abusing Sheo Harakh and his father. When his father protested, then the appellant gave him a lathi blow as a result of which Algoo fell down. His uncle Ram Deo started shouting for help and fell on his father to protect him. No lathi or danda was plied by his uncle because at that time there was no lathi or danda in the shop. All the four accused assaulted his father Algoo and his uncle Ram Deo with lathies. 14. PW 2 Ram Deo, the brother of Algoo, the deceased had stated that his brother Algoo and his nephew Ram Harakh alias Sheo Harakh had purchased some land in Adam Pur (Rajendra Nagar) where they built a house in which they resided and PW 1 Sheo Harakh also ran a general merchant shop there. On the fateful day at about 5. 30 p. m. the appellant Ruddal alias Anil arrived for purchasing some spices and soap, but he was not prepared to the pay full price for the items purchased and on the refusal of Ram Harakh to give the items in advance, the appellant left the shop in anger and after a while the appellant accompanied with three co-accused returned to the shop. Algoo was present in the osara at that time. The appellant Ruddal gave him a lathi blow from which Algoo fell down and when he rushed forwarded to save his brother, he was also belaboured by the four co-accused persons. On the cry of Ram Harakh, Tilakdhari, Murat, Maan and Mauji arrived there. No body plied lathis and dandas from the side of the prosecution and no accused received any injury from any assault. However, Ruddal is said to have received an injury on his head from the bamboo of the Chhani (roof ). On the cry of Ram Harakh, Tilakdhari, Murat, Maan and Mauji arrived there. No body plied lathis and dandas from the side of the prosecution and no accused received any injury from any assault. However, Ruddal is said to have received an injury on his head from the bamboo of the Chhani (roof ). After his injuries Algoo became unconscious and he never regained conscious up to the time of his death. 15. The third and last eye-witness is PW 3, Mauji. He also states that the incident took place at about 5. 30 p. m. He claims to have reached the place of incident as he was going on his bullock cart from Khojipur to Mauza Bhaisiya, and when he reached Algoos door in Rajendra Nagar, which fell on the way, he saw the appellant Ruddal giving two blows with his lathi to Algoo who fell down as a result of the blows. Ram Deo fell on Algoo in order of save him, whereupon Rajendra Rai, Sarvajeet Rai and Shivdeen son of Rajendra Rai (whose actual name was Ripusudan and who this witness identified in Court ). Algoo became unconscious as a result of injury. This witness left the place after 15-20 minutes of this incident. In this incident, apart from Algoo and Ram Deo, even the appellant Ruddal had received some injuries, but he also states that appellant had received the injuries from the bamboo of the roof of the hut, which resulted in bleeding. Neither Algoo nor Ram Deo nor anyone from their side plied any lathi. He denied having told the investigating officer that Ram Deos lathi has caused injuries to Ruddal. 16. The defence of the appellant is that he had gone to Algoo to demand the balance money for the goods and land sold to him. His demands annoyed Algoo. On Algoos call, Algoo and the other accused in the cross case began to assault him. In his defence he also plied lathies. Significantly an F. I. R. was also lodged from the side of the appellant by the appellants brother, co-accused Rajendra Nath at 7. 10 p. m. On 28-4-76 and on the basis of that report Shri Praduman Roy, PW 5 prepared chik report, which was Ext. Ka-I. The appellant was examined by Dr. Jaiswal, PW 7 and his injuries have already been described hereinabove. 10 p. m. On 28-4-76 and on the basis of that report Shri Praduman Roy, PW 5 prepared chik report, which was Ext. Ka-I. The appellant was examined by Dr. Jaiswal, PW 7 and his injuries have already been described hereinabove. The acquitted co-accused Rajendra Nath has also come out with a more comprehensive defence version in his examination under Section 313 Cr. P. C. He states that Algoo owed him Rs. 150 for 10 karies of land which he had purchased separately, and he also owed them Rs. 1,000/- for wheat which he had taken on advance. He had sent his brother for getting back the balance amount owed by Algoo and Sheo Harakh to them. But on Anils demands the accused of his F. I. R. got annoyed and they surrounded and beat the appellant with lathies and spear. The appellant had also used his lathi in self defence. 17. In view of the admission of the appellant that he used his lathi in self defence there can be no denial of the fact that the appellant was involved in the incident in which injuries were caused to Ram Deo and Algoo lost his life. 18. As the informant took his father Algoo and his uncle Ramdeo to the police station on a bullock cart in the absence of any "ikka van" the lodging of the report with the some delay at 9. 05 p. m. for an incident which took place at 5. 30 p. m. at P. S. Madhuban, 3 kms away, is also not of much consequence. 19. The basic contention of Shri P. N. Mishra, learned senior Counsel however was that as substantial injuries had been received by the appellant Arvind alias Anil alias Ruddal, for which there was initially no explanation and thereafter an absurd explanation, hence as per the law laid down in decisions of this Court and the apex Court the appellant would be entitled to the right of private defence for the injuries caused to Algoo and Ramdeo. The injuries to appellant Arvind were a lacerated wound on the head. 4 cm posterior on the hair line with heamotoma on the top of the head. Abraded contusion on the right side of the forehead. Abraded contusion on the right side of the face. Swelling on the lateral aspect of middle left of upper arm. The injuries to appellant Arvind were a lacerated wound on the head. 4 cm posterior on the hair line with heamotoma on the top of the head. Abraded contusion on the right side of the forehead. Abraded contusion on the right side of the face. Swelling on the lateral aspect of middle left of upper arm. Linear abrasion, traumatic swelling on the posterior of left wrist joint. There is absolutely no explanation of these fairly substantial injuries on the accuseds side in the F. I. R. , where the incident has been described to be a one sided affair, in which the appellant accompanied by his three companions assaulted the deceased Algoo and his brother Ram Deo and no weapon whatsoever had been used by them. Later on, even a more absurd explanation of the injuries received by the appellant Anil appears to have been mentioned in the evidences of the eye-witnesses that the appellant when he rushed into the house where the shop was also located, had been struck by a bamboo protruding from the thatched roof of the hut. The suggestion that although the first injury to appellant Anil, viz. the lacerated wound on the mid line of the head where fresh bleeding was present had actually been received in the incident, whilst the other injuries which included a heamotoma on the top of the head, abraded contusion on right side of forehead, abraded contusion right side face, swelling on the lateral aspect of the left arm, traumatic swelling on the wrist etc. could have been manufactured, has only to be stated to be rejected. PW 7 Dr. Jaiswal examined Arvinds injuries at 8 p. m. on 28-4-76, while the injuries of Ramdeo were examined at 10. 30 p. m. on 28-4-76. The report of Rajendra Nath accused was also earlier in point of time as it had been lodged at 7. 10 p. m. , on 28-4-76, while the report by Sheo Harakh was lodged after 2 hours thereafter at 9. 05 p. m. In this view of the matter there considerable force in the submission of learned Counsel, that the appellant would be entitled to the benefit of the right of private defence under the circumstances of the case. 10 p. m. , on 28-4-76, while the report by Sheo Harakh was lodged after 2 hours thereafter at 9. 05 p. m. In this view of the matter there considerable force in the submission of learned Counsel, that the appellant would be entitled to the benefit of the right of private defence under the circumstances of the case. Striking by a bamboo would no cause injuries on so many parts of the head, face and to other part of the body as described in the injury report of Anil, the appellant. 20. One witness Mauji, PW 3 has stated in his statement to the police under Section 161 Cr. P. C. that Ram Deo also plied lathi in his defence injuring the appellant, but he has disowned this statement in Court and has reiterated the same explanation of the injuries deposed to by the other two witnesses that the appellant Arvind got hurt from the bamboo which was protruding from the roof of the hut, which as I have already mentioned above was a completely absurd explanation of Anils injuries. 21. A registered sale-deed (Ext. Kha-3) has been filed to show that Bindhyachal, real brother of PW 1, Sheo Harakh had purchased 42 Karis of land from Rajendra Nath (the appellants brother) by a registered deed, (Ext. Kha-3) and a further 10 Karis of land for which the payment had still to be made. The sale-deed also repudiated the prosecution version that only 22 karies of land had been purchased by Sheo Harakh. On account of demand for the non-payment of price for the additional 10 karis of land, and also for the sale of wheat worth rupees one thousand annoyance by Algoo and Sheo Harakh leading to an assault on Arvind alias Anil could not be ruled out. The law of self defence is well settled that an accused has only to establish his plea of private defence by a mere preponderance of probabilities, and it is for the prosecution to prove its case beyond reasonable doubt, and to even negate possible pleas of self defence that may be raised by an accused. However we find that in the present case while the appellant has specifically taken a plea of private defence in his statement under Section 313 Cr. However we find that in the present case while the appellant has specifically taken a plea of private defence in his statement under Section 313 Cr. P. C. and has sought to explain the injuries to the prosecution side, there is no believable and reasonable explanation of the injuries sustained by the appellant. 22. It has been laid down in a catena of decisions of the apex Court and this Court, that when there are substantial unexplained injuries on the accused, then it cannot be ruled out that the prosecution side were the aggressor and that the accused had acted in exercise of his right of private defence or that prosecution was not coming out with the true version of the case. 23. I also find that none of the other witness, who were even named in the F. I. R. and in the evidence namely, Kedar Yadav, Tilakdhari, Sheo Prasad, Murat and Maan have been examined to support the prosecution case. 24. PW 3, Mauji was a chance witness as he was coming from village Kochipur carrying bamboos of Chandrabhan Yadav and happened to have reached the spot in Rajendra Nagar concidently. The learned Sessions Judge has recorded a finding that he is also closely related to Algoo and Sheo Harakh. In fact his cousin sister Prabhawati was married to Satyadev, who was the brother of deceased Algoo and Sheo Harakh. Hence he is also a partisan witness and thus there is no corroboration of the prosecution story from any independent source. 25. Learned Sessions Judge has acquitted three co-accused Rajendra Nath, Ripusudan and Sarvjeet and, therefore, at least part of the prosecution version has been disbelieved by the Trial Court. 26. In this state of evidence I do not think, it would be safe to uphold the conviction of the appellant in this case under Section 304 Part-1 IPC or under Section 323 IPC. He is accordingly given the benefit of doubt and is acquitted of all the charges against him. 27. Accordingly the appeal is allowed. 28. The appellant is on bail. His bail bond is cancelled are sureties and discharged. He need not surrender before the trial Court. Appeal allowed .