JUDGMENT 1. - These appeals are directed against judgment dated 19th May, 1982 passed by learned Sessions Judge, Jalore, whereby the appellants Jor Singh, Dalpat Singh and Veer Singh were convicted and sentenced as under:-Jor Singh Under section 325/34 IPC : To suffer rigorous imprisonment for 7 years with a fine of Rs.2,000/- and in default in payment of fine to further suffer 1 years rigorous imprisonment. Under section 452 IPC.: To suffer rigorous imprisonment for a period of 2 years. Under section 323 IPC.: To suffer 6 months' rigorous imprisonment. The sentences were directed to run concurrently. Dalpat Singh and Veer Singh have also been convicted under Sections 325/34, 452 and 323 IPC. However, they were not sentenced to suffer imprisonment immediately while giving benefit under Section 4 of Probation of Offenders Act, 1958 and they were ordered to be released on probation on their furnishing security of Rs.3,000/- and the bonds of the like amount on the following conditions:- (i) The accused persons shall not use force, abstained from taking the law in their hands and shall maintain peace and good conduct . (ii) On breach of the aforesaid conditions, shall remain present to suffer imprisonment when summoned by the Court. 2. In nutshell the prosecution case is that Sarva Shri Chiman Singh ( deceased), Balwant Singh(informant) and the accused Jor Singh, are brothers. Balwant Singh and Jor Singh live in adjoining houses with a common wall. Balwant Singh got constructed a shade for the cattle in his house by putting tin sheets over the common wall. On 26.6.81 at 7 a.m. while Balwant Singh was standing at his house , the accused Jor Singh started abusing him and threatened to kill him, if the tin sheets are not removed from common wall. It is stated that Balwant Singh tried to make Shri Jor Singh understand that the common wall whereupon, the tin sheets rest has been got constructed by him alone and the same is not causing any inconvenience to him, therefore, he should not indulge in an unnecessary quarrel. However, accused Jor Singh and his sons Dalpat Singh and Veer Singh equipped with the lathis and axe entered the house of Balwant Singh and assaulted him. Jor Singh and Dalpat Singh inflicted lathi blow on the head of the informant Balwant Singh and Veer Singh inflicted a axe blow on his head. However, accused Jor Singh and his sons Dalpat Singh and Veer Singh equipped with the lathis and axe entered the house of Balwant Singh and assaulted him. Jor Singh and Dalpat Singh inflicted lathi blow on the head of the informant Balwant Singh and Veer Singh inflicted a axe blow on his head. On hearing the cry, Chiman Singh and his son Man Singh came to the place of occurrence and intervened to save the informant Balwant Singh . Thereupon, Shri Veer Singh inflicted a axe blow on the head of Chiman Singh and Jor Singh and Dalpat Singh inflicted multiple blows by lathis on the head of Shri Chiman Singh, who fell down but, even thereafter, the accused persons continued to inflict injuries on Chiman Singh , which resulted in tearing of his head and he fell unconscious. When Man Singh intervened to save his father Chiman Singh, accused Veer Singh inflicted a axe blow on the head of Shri Man Singh, accused Jor Singh inflicted lathi blows on his head and accused Dalpat Singh inflicted lathi blows on the head and ankle of his left hand . That apart, the accused persons also inflicted injuries on the head of Smt. Ugam Kanwar w/o late Shri Chiman Singh and Miss Hawa Kanwar D/o Balwant Singh, who also intervened in the quarrel. It is stated that hearing the cries, Sarva Shri Hem Singh s/o Guman Singh and Bhanwar Singh s/o Vanne Singh came to the place of occurrence and saved the victims with great difficulty. Shri Chiman Singh was taken to hospital in a bullock cart , however, he succumbed to the injuries on his way to the hospital. 3. On 26.6.81 at 8.30 a.m., the injured Shri Balwant Singh lodged an oral report of the incident occurred as aforesaid, at Police Station, Bagra, district Jalore. Accordingly, an FIR was registered against the accused persons Serva Shri Jor Singh, Dalpat Singh and Veer Singh for commission of offences u/ss. 302, 324, 323 and 452 of Indian Penal Code ( in short "IPC" hereinafter). 4. After registering the case, the investigation commenced. After inquest proceedings, the body of the deceased Chiman Singh was taken for autopsy . Dr.Jagdish Prasad conducted the post mortem of the deceased Chiman Singh and also examined the injuries of the victims Serva Shri Balwant Singh, Man Singh, Smt. Ugam Kanwar and Miss Hawa Kanwar . 4. After registering the case, the investigation commenced. After inquest proceedings, the body of the deceased Chiman Singh was taken for autopsy . Dr.Jagdish Prasad conducted the post mortem of the deceased Chiman Singh and also examined the injuries of the victims Serva Shri Balwant Singh, Man Singh, Smt. Ugam Kanwar and Miss Hawa Kanwar . He also examined the injuries on the persons of the accused namely, Jor Singh and Veer Singh. 5. The accused appellants were arrested. At the instance of accused Jor Singh and Dalpat Singh , lathis and at the instance of accused Dalpat Singh , axe were recovered. The weapons used in the commission of offences and blood stained cloths of deceased Chiman Singh, injured Man Singh and Balwant Singh were sealed. On completion of the investigation, a charge sheet u/ss. 302, 452, 325, 323 read with 34 IPC was filed against the accused persons before the learned Judicial Magistrate, First Class, Jalore. On 1.12.81, the matter was committed to the Sessions and thereafter the case came for trial before the Sessions Judge, Jalore and the charges were framed u/ss. 302, 302/34, 325/34 , 323 and 452 IPC against the accused persons, who denied the charges and claimed trial. 6. The prosecution in support of its case produced as many as 12 witnesses and produced documentary evidence Ex. P/1 to Ex. P/27. The statements of the accused persons were recorded u/s. 313 Cr.P.C., wherein they denied their involvement in the crime and stated that they were assaulted by the complainant party which resulted in injuries on the persons of the accused Jor Singh and Veer Singh. The accused persons did not produce any witness in their defence, however, they produced an injury report of Bhanwari Bai w/o Jor singh produced as Ex. D/1. 7. The learned trial Court after considering the evidence available on record and the submissions made by the parties, convicted and sentenced the accused appellants as indicated hereinabove. 8. We have heard the learned counsel for the accused appellants, learned Public Prosecutor and the counsel appearing on behalf of the complainant and also examined the material available on record in its entirety and objectivity. 9. It is contended by the learned counsel appearing on behalf of accused appellants that the learned trial court has miserably failed in appreciating the serious question of right of private defence raised on behalf of the accusedappellants. 9. It is contended by the learned counsel appearing on behalf of accused appellants that the learned trial court has miserably failed in appreciating the serious question of right of private defence raised on behalf of the accusedappellants. The learned counsel submitted that on the basis of the evidence on record, it is manifestly clear that the complainant party was the aggressor and the accused persons have exercised their right of private defence . The learned counsel submitted that the entire incident has occurred at the spur of the moment and the things took the shape right on the spot but, the prosecution has not produced any evidence worth the name to establish as to what actually lead to the unpleasant incident. The learned counsel submitted that the learned trial court has arrived at a categorical finding that the accused persons have inflicted the injuries without any intention to cause death or to cause such bodily injuries which were likely to cause death. The learned counsel submitted that in such situation when the accused persons have also suffered the injuries , the plea of right of private defence advanced by them become highly probable therefore, the benefit of doubt should have been extended to them. In this regard, the learned counsel has relied upon the Division Bench decision of this Court in the matter of Gurdeo Singh & Ors. v. State of Rajasthan, 1994 RCC 620 and decision of the Hon'ble Supreme Court in the matter of Moti Singh v. State of Maharashtra, 2002 (2) JT (SC) 133 . The learned counsel further submitted that the prosecution has failed to explain the injuries on the persons of the accused and suppressed the genesis and origin of the occurrence which throws doubt on the prosecution case, more so when the prosecution evidence consisted of the interested witnesses,therefore, the accused are entitled to be acquitted. In this regard, the learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of Laxmi Singh & Ors. v. State of Bihar, AIR 1976 (SC) 2263 . 10. Per contra, the learned Public Prosecutor and the counsel for the complainant contended that the learned trial court has seriously erred in acquitting the accused persons for the offences u/ss. 302, 320/34 IPC. v. State of Bihar, AIR 1976 (SC) 2263 . 10. Per contra, the learned Public Prosecutor and the counsel for the complainant contended that the learned trial court has seriously erred in acquitting the accused persons for the offences u/ss. 302, 320/34 IPC. The learned Public Prosecutor submitted that deceased Chiman Singh received 5 injuries out of which, 4 were on the head and these injuries were sufficient in ordinary course to cause death. The learned Public Prosecutor submitted that the Medical Officer Dr. Jagdish Prasad (P.W. 11) who has conducted the post mortem of the deceased Chiman Singh has categorically opined that the injuries found on the dead body of Chiman Singh were ante mortem in nature and the injuries no. 1 to 4 cumulatively were sufficient in ordinary course of nature to have caused death. While drawing the attention of this Court to the post mortem report (Ex.P/13), the learned Public Prosecutor further submitted that the cause of death has been found to be due to syncope(shock) due to injury on vital organ(brain) and hemorrhage. Accordingly, it is submitted that on the facts and in the circumstances of the case, it cannot be said that the accused persons had no intention to cause death of deceased Chiman Singh or to cause such bodily injuries which may result in death in ordinary course. In the alternative,the learned Public Prosecutor submitted that even if the offences u/ss. 302, 302/34 IPC is not made out then too, on the basis of the evidence on record, the accused persons were liable to be convicted u/s. 304 -I or 304-II IPC. The learned Public Prosecutor submitted that the learned trial court has committed no error in rejecting the plea of private defence raised on behalf of the accused persons. The learned Public Prosecutor further submitted that it is absolutely incorrect to say that the injuries on the persons of the accused have not been explained by the 10 prosecution. It is submitted that it has come on record that when the accused persons inflicted blows on the deceased Chiman Singh, he had taken out a stick from the fencing nearby and inflicted blows on the accused persons in his defence. It is submitted that it has come on record that when the accused persons inflicted blows on the deceased Chiman Singh, he had taken out a stick from the fencing nearby and inflicted blows on the accused persons in his defence. The learned Public Prosecutor lastly urged that after proper evaluation of the evidence on record, the learned trial court has arrived at a categorical finding that the accused persons were the aggressor and some injuries have been inflicted on the persons of the accused by complainant party exercising their right to private defence therefore, even if this Court comes to the conclusion that the offences u/ss. 302, 302/34, 304-I and 304-II IPC is not made out then too, the conviction of the accused by the learned trial court u/ss. 325/34, 323 and 452 IPC cannot be faulted with. 11. Dr. Jagdish Prasad(P.W. 11) who was at the relevant time Medical Officer at Government Dispensary, Bagra conducted autopsy over the dead body of Chiman Singh and as per the post mortem report (Ex. P/13) and his deposition before the learned trial court following ante mortem injuries were found on the body of the deceased Chiman Singh:- "1. Lacerated wound 3 c.m. X 0.5 c.m. X skin deep on scalp at right pariatal region 3 c.m. right to midline. 2. Lacerated wound 3 c.m. X 0.5 c.m. X skin deep on the centre of head. 3. Lacerated wound transverse in position 10 c.m. X 3 c.m. X bone deep on back of head extending from mid line to left ear. Bone fragments seen blood present. 4. Lacerated wound 5 c.m. X 2 c.m. X skin deep on left temporal region, transverse in position just above left ear. 5. Two parallel bruises 35 c.m. X 0.5 c.m. extending downward from back of left shoulder to left renal area. Reddish in colour." It has been opined by the Medical Officer Dr. Jagdish Prasad(P.W.11) in unequivocal terms that the injuries no.1 to 5 are caused by blunt object and the cause of death is due to syncope(shock) due to injury on vital organ(brain) and hemorrhage. Looking to the nature of injuries and cause of death of Shri Chiman Singh , his death is concededly homicidal in nature. 12. Jagdish Prasad(P.W.11) in unequivocal terms that the injuries no.1 to 5 are caused by blunt object and the cause of death is due to syncope(shock) due to injury on vital organ(brain) and hemorrhage. Looking to the nature of injuries and cause of death of Shri Chiman Singh , his death is concededly homicidal in nature. 12. As per the injury reports (Ex.P/14 to Ex.P/19), the victims Shri Balwant Singh, Smt. Ugam Kanwar, Shri Man Singh , Miss Hawa Kanwar and accused persons Serva Shri Jor Singh and Veer Singh have suffered the injuries as under:-Balwant Singh "1. Lacerated wound-4 c.m. X 0.25 c.m. X skin deep on left side of fore head 7 c.m. above left eye brow-bleeding present. 2. Lacerated wound 7 c.m. X 0.5 c.m. X skin deep on left side of head at temporal region- 8 c.m. above left ear. 3. Lacerated wound 4 c.m. X 0.5 c.m. X skin deep on right side of the head at parietal region 10 c.m. above right ear. 4. Swelling 8 c.m. X 7 c.m. with two parallel contusion 5 c.m. X 0.5 c.m. on medial aspect of left fore arm 3 c.m. below medial border of left elbow. Reddish in colour. 5. Swelling 10 c.m. X 7 c.m. on medial aspect of right forearm just below right elbow. 6. Two parallel contusion, transverse in position 20 c.m. X 0.5 c.m. on upper part of back chest extending from lower end of left scapula to lower end of right scapula. Reddish in colour. 7. Two parallel contusion transverse in position 19 c.m. X 0.5 c.m. on lower position of back just above superior iliac spine." Smt. Ugam Kanwar "1. Lacerated wound 0.5 c.m. X 0.25 c.m. X skin deep on right side of scalp(head) at temporal region 5 c.m. right to mid line. Bleeding present. 2. Swelling 3 c.m. X 2 c.m. at lateral end of left navicular region with contusion 3 c.m. X .25 c.m. directed medially." Man Singh "1. Lacerated wound 2 c.m. x 0.5 c.m. x 0.5 c.m. at mid of fore head 3 c.m. above eye brow line. Bleeding present. 2. Lacerated wound 5 c.m.x 0.5 c.m. x skin deep on right side of fore head at perital region 3 c.m. right to midline. 3. Big swelling all around left elbow joint-tenderness present. Movement restricted." Miss Hawa Kanwar "1. Bleeding present. 2. Lacerated wound 5 c.m.x 0.5 c.m. x skin deep on right side of fore head at perital region 3 c.m. right to midline. 3. Big swelling all around left elbow joint-tenderness present. Movement restricted." Miss Hawa Kanwar "1. Lacerated wound 'L' shaped 6 c.m. x 0.5 c.m. x skin deep and 1.5 c.m. x 0.5 x skin deep on right side of scalp (head) at parietal region 3 c.m. right to mid line-Bleeding present." Jor Singh "1. Lacerated wound 4 c.m. x 4 c.m.x 0.5 c.m. x skin deep (angular ) on right temporo parietal region of head 7 c.m. above right ear. 2. Lacerated wound 3 c.m. x 0.25 c.m. x skin deep at upper end of base of right ear. 3. Lacerated wound 3 c.m. x 0.5 c.m. x skin deep at left parietal region of head 8 c.m. above left ear. 4. Lacerated wound 1.5 c.m. x 0.25 c.m. x skin deep left side of fore head 2.5 c.m. above left eye brow. 5. Contusion 1 c.m. x 0.5 c.m. on mid of nose. 6. Swelling 6 c.m. x 5 c.m. on medial side of left knee. Tenderness present. Movement not restricted. 7. Swelling 4 c.m. x 5 c.m. on dorsum of right forearm on ulnar side just above wrist joint. Tenderness present. Movement restricted. Veer Singh "1. Contusion( L shape) 5 c.m. x 2 c.m. on back of left shoulder Tenderness present. Reddish in colour. Movement restricted. 2. Lacerated wound 0.5 c.m. x 0.25 c.m. x skin deep at centre of scalp. 3. Abrasion 1 c.m. x .25 c.m. on right side of forehead 3 c.m. above right eye brow." 13. Admittedly, deceased Chiman Singh , Balwant Singh and the accused Jor Singh are brothers. Smt. Ugam Kanwar (P.W.1) is the widow of deceased Chiman Singh, Miss Hawa Kanwar is the daughter of Balwant Singh and Man Singh is son of deceased Chiman Singh. The accused Dalpat Singh and Veer Singh are sons of accused Jor Singh. Thus, all the victims and the accused persons are close relatives. It has come on record that there was absolutely no enmity existing amongst the members of the families of three brothers and they were living happily without any ill-will in their separate houses. The accused Dalpat Singh and Veer Singh are sons of accused Jor Singh. Thus, all the victims and the accused persons are close relatives. It has come on record that there was absolutely no enmity existing amongst the members of the families of three brothers and they were living happily without any ill-will in their separate houses. It is to be noticed that P.W. 1 Smt. Ugam Kanwar in her deposition before the learned trial court has categorically stated that amongst the three brothers, there was no quarrel or any cause of annoyance and all were in talking terms. It is stated that the properties were partitioned amongst the brothers and each brother was occupying his own share. It is further stated that even amongst the spouses of three brothers, there was no quarrel and they were at good terms. Similarly, the victim Balwant Singh (P.W.6) has deposed that no dispute regarding partition of the property was existing between him and accused Jor Singh and there was no occasion of quarrel between them prior to the incident occurred. It is further stated that when he constructed the cattle shade which is the genesis of the incident occurred , no objection was raised by accused Jor Singh. Even, Man Singh (P.W.5) son of the deceased Chiman Singh has deposed in unequivocal terms that no dispute regarding the partition of the properties was existing between his father late Shri Chiman Singh, his uncle Balwant Singh and Jor Singh and that all the three families of brothers were in talking terms and used to live affectionately as brothers. Therefore, it can be safely concluded that the incident in question has occurred all of a sudden without there being any pre existing ill will or motive. 14. It is not in dispute that Balwant Singh (P.W.6) and accused Jor Singh are living adjoining houses with a common wall. It has also come on record that the houses of Balwant Singh and Jor Singh are separated by a wall in the half portion and by fencing of throne in the remaining half portion. 14. It is not in dispute that Balwant Singh (P.W.6) and accused Jor Singh are living adjoining houses with a common wall. It has also come on record that the houses of Balwant Singh and Jor Singh are separated by a wall in the half portion and by fencing of throne in the remaining half portion. As per Balwant Singh (P.W.6), on the date of occurrence of unfortunate incident when he was standing in his house, his brother Jor Singh, Veer Singh and Dalpat Singh asked him to remove the tin sheets resting on the common wall and when he made an attempt to make them understand that the wall has been constructed by him and the shade is not causing any inconvenience to them, therefore, they should not indulge in unnecessary quarrel, they equipped with the lathis and axe, came to his house crossing the fencing and assaulted him . It is to be noticed that in the FIR, Shri Balwant Singh has stated that Shri Jor Singh abused him and threated to kill him, if the tin sheets are not removed, however, in his deposition before the learned trial court , he has nowhere stated that any such threatening was given.Apart from Shri Balwant Singh, the other witnesses, whose presence at the place of incident cannot be doubted is Miss Hawa Kanwar (P.W.2), daughter of Shri Balwant Singh. She has also supported the statement of his father Balwant Singh regarding the origin of incident. It is to be noticed that apart from the oral deposition of the witnesses, regarding the place of occurrence, the investigating agency has found the blood stained earth from the house of the victim Balwant Singh. Therefore, it can be safely concluded that the accused persons unauthorisedly entered the house of Shri Balwant Singh , assaulted him and inflicted injuries as noticed above. But then, it is pertinent to note that all the injuries caused to Balwant Singh are found simple in nature. That apart, all the witnesses including Balwant Singh (P.W.6) himself have categorically deposed in their deposition before the learned trial court that on his head an injury was caused by Veer Singh from blunt side of the axe and Jor Singh and Veer Singh inflicted lathi blows on his head. That apart, all the witnesses including Balwant Singh (P.W.6) himself have categorically deposed in their deposition before the learned trial court that on his head an injury was caused by Veer Singh from blunt side of the axe and Jor Singh and Veer Singh inflicted lathi blows on his head. Had there been any intention of the accused to kill him then, obviously, accused Veer Singh would not have used blunt side of the axe to cause injury on the persons of the victim Balwant Singh. However, from the consistent deposition of all the witnesses examined by the prosecution viz. Ugam Kanwar(P.W.1), Hawa Kanwar (P.W.2) , Man Singh (P.W.5), Balwant Singh (P.W.6) and Hem Singh (P.W.8), it is manifestly clear that the incident has occurred at the house of the victim Balwant Singh and the accused persons were the aggressors. 15. It is also not in dispute that the deceased Chiman Singh, eldest brother of victim Balwant Singh and accused Jor Singh was residing in his house situated at a distance of about 20 steps from the house of Balwant Singh. Therefore, his coming to the place of occurrence hearing the cries of his brother cannot be doubted. All the witnesses whose presence at the place of occurrence was probable and cannot be doubted ,have deposed that when shri Chiman Singh intervened in the quarrel to save Balwant Singh, accused Veer Singh inflicted a blow on his head by blunt side of the axe and Jor Singh and Dalpat Singh inflicted lathi blows on his head and thereafter, when he fell down , they continued to beat him. But the fact remains that again the blunt side of the axe was used by the accused Veer Singh to cause injury on the head of deceased Chiman Singh. If the accused persons had any intention to cause death of Shri Chiman Singh then obviously, the sharp side of the axe would have been used instead of the blunt side. Therefore, from the deposition of the prosecution witnesses and other evidence on record, it cannot be inferred that the accused persons had any intention to cause death of Shri Chiman Singh. 16. It is pertinent to note that as per the injury reports (Ex.P/18 & P/19) of the accused persons viz. Jor Singh and Veer Singh, they have suffered 7 and 3 injuries respectively. 16. It is pertinent to note that as per the injury reports (Ex.P/18 & P/19) of the accused persons viz. Jor Singh and Veer Singh, they have suffered 7 and 3 injuries respectively. The learned trial court after examining the entire evidence on record has arrived at the finding that the injuries on the persons of the accused have not been properly explained by the prosecution. It is to be noticed that P.W. 1 Mrs.Ugam Kanwar in her cross examination before the learned trial Court has stated that the blood was oozing from the head and hand of Jor Singh and so also from the head of Veer Singh. She has further stated that she did not pay any attention as to from which part of the body of the accused persons the blood was oozing . That apart, victim Man Singh (P.W. 5)son of deceased Chiman Singh in his deposition have categorically deposed that his father had picked up a stick from the fencing to defend himself and while defending , the injuries were caused by him on the head and hands of the accused persons Jor Singh and Veer Singh. 17. The learned trial court after due scrutiny of the evidence on record opined that the injuries suffered by the accused persons are not superficial and has not believed the prosecution story that all the injuries on the persons of the accused were caused by deceased Chiman Singh alone in his defence, by a stick alleged to have been picked up by him from the fencing nearby. The learned trial court opined that the prosecution witnesses have perhaps concealed the cause of the injuries on the persons of the accused so as to save them from a cross case. 18. At this stage, it will be appropriate to consider the law laid down by the Hon'ble Supreme Court in Laxmi Singh's case (supra) relied upon by the learned counsel for the accused appellants. In the said decision, the Hon'ble Supreme Court has opined that in a murder case the non explanation of the injuries sustained by the accused at about the time of occurrence or in course of the altercation is a very important circumstances. In the said decision, the Hon'ble Supreme Court has opined that in a murder case the non explanation of the injuries sustained by the accused at about the time of occurrence or in course of the altercation is a very important circumstances. Hon'ble Supreme Court relied upon an earlier decision in the matter of Puran Singh v. State of Punjab, AIR 1975 SC 1478 , wherein the Court observed as follows:- "In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow: (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all." 19. Applying the ratio of the aforesaid decisions of the Hon'ble Supreme Court , on the facts and circumstances of the present case, it is to be noticed that in the instant case, the accused persons were the aggressors and the injuries sustained by the accused persons even if assumed to be not property explained, were caused by the victims in their defence. Therefore, solely on the basis of the fact that the injuries on the accused have not been properly explained , the case established by the prosecution by other evidence on record cannot be brushed aside , disbelieved or doubted. 20. In Gurdeo Singh's case(supra), a decision of this Court, relied upon by the learned counsel for the accused appellants , this Court observed as under:- "48. It is well to remember that it is settled principle of Criminal Jurisprudence that an accused pleading the right of private defence need not prove it beyond reasonable doubt. It is enough if on the basis of the circumstances of a particular case, applying the test of preponderance of probabilities the version becomes acceptable. The burden placed on the accused is discharged no sooner he creates a doubt in the mind of the Court and satisfies the Court that the version disclosed by him in the facts and circumstances of that particular case is more probable xxx ..... The burden placed on the accused is discharged no sooner he creates a doubt in the mind of the Court and satisfies the Court that the version disclosed by him in the facts and circumstances of that particular case is more probable xxx ..... xxxx." In this regard, the Court relied upon a decision of the Hon'ble Supreme Court in the matter of Dwarka Prasad v. State of U.P., (1993) Supp. (3) SCC 141 wherein , Hon'ble Supreme Court observed as under:- "It is well known that accused pleading the right of private defence need not prove it beyond reasonable doubt. It is enough if one the basis of the circumstances of a case, applying the test of preponderance of probabilities the version becomes acceptable. There are now two parallel versions before the Court, one on behalf of the prosecution and other on behalf of the accused and the Court is required to choose as to which of the two versions is the correct versions of the occurrence. The burden placed on the accused is discharged no sooner he creates a doubt in the mind of the Court and satisfied the Court that the version disclosed by him in the facts and circumstances of that particular case is more probable. The onus of the accused under Section 105 of the Evidence has been examined by this Court in the case of Pratap v. State of U.P., 1976 (2) SCC 798 ; Mohan Singh v. State of Punjab, 1975 (4) SCC 254 : AIR 1975 SC 2161 ; Seriyal Udayar v. State of T.N., 1987 (2) SCC 359 : AIR 1987 SC 1289 ; Vijayee Singh v. State of U.P., 1990 (3) SCC 190 and Buta Singh v. State of Punjab, (1991) 2 SCC 612 ." In the matter of Moti Singh v. State of Maharashtra, JT 2002 (2) SC 134 , relied upon by the learned counsel for the appellants, the Hon'ble Supreme Court has held as under:- "9. Section 102 of the Indian Penal Code says that 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 even a threat to commit any offence though the offence may not have been committed and the right continues as long as such apprehension of danger to the body continues. Section 100 of the Indian Penal Code confers the right of private defence of the body upto the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right, be of any of the acts as may reasonably cause the apprehension that grievous hurt be the consequence of such assault. 10. Regarding the contention that the appellant is dis-entitled to get the benefit of right of private defence as he failed to make out a plea in that regard we may point out that it would be quite unjust to deny such a right to the accused merely on the ground that he adopted a different line of defence. If the evidence adduced by the prosecution would indicate that the accused were put under a situation where they could reasonably have apprehended grievous hurt even to one of them, it would be inequitable to deny the right of private defence to the accused merely on the ground that he has adopted a different plea during the trial The crucial factor is not what the accused pleaded, but whether the accused had the cause to reasonably apprehend such danger. A different plea adopted by the accused would not foreclose the judicial consideration on the existence of such a situation." 21. There cannot be any quarrel with the preposition of law laid down by the Hon'ble Apex Court as aforesaid. But then, its applicability has to be judged on the facts and circumstances of each case. In the instant case, after examining the evidence on record threadbare , the learned trial court has categorically held and in our opinion rightly that the accused appellants have not been able to establish their right to private defence. In our considered opinion, a minute examination of the evidence on record leads to an irresistible conclusion that in the instant case, the accused persons were the aggressor and the injuries on the persons of the accused which are simple in nature might have been caused by the victims in their defence. Therefore, solely on the ground that the injuries on the persons of the accused have not been explained by the prosecution properly , the plea of the accused regarding their exercising the right of private defence cannot be accepted. 22. Therefore, solely on the ground that the injuries on the persons of the accused have not been explained by the prosecution properly , the plea of the accused regarding their exercising the right of private defence cannot be accepted. 22. Now, the last question which deserves consideration of this Court is as to whether in the facts and in the circumstances of the case, wherein the incident has occurred , the injuries caused by the accused appellants on the persons of the deceased Chiman Singh which has resulted in his death can be said to be an act of the accused appellants constituting culpable homicide not amounting to murder. 23. It is an undisputed fact on record that there was no enmity existing between the accused persons and the complainant party, rather, they were at good terms. As noticed above, the incident has occurred all of a sudden . There was absolutely no premeditation amongst the accused persons to cause death of the victim Balwant Singh or the deceased Chiman Singh. Had it been the intention of the accused persons to cause death then, obviously , the accused Veer Singh would not have inflicted injuries of the nature found on the body of the the deceased Chiman Singh by using the blunt side of the weapon instead of sharp side of the weapon. It is to be noticed that in the first instance while inflicting injuries on the persons of the victim Balwant Singh and thereafter on the persons of deceased Chiman Singh, on both the occasions, the accused Veer Singh has used blunt side of the axe. From the nature of the injuries and overall facts and circumstances of the case, in no manner it can be inferred that the accused had an intention to cause death or have caused the injuries with the knowledge that the injuries inflicted are likely to cause death. It is pertinent to note that even the Medical Officer has opined that injury nos. 1 to 4 suffered by the deceased Chiman Singh cumulatively are sufficient to cause death but, it is not the opinion given that any singe injury caused in itself was sufficient to cause death. 24. It is pertinent to note that even the Medical Officer has opined that injury nos. 1 to 4 suffered by the deceased Chiman Singh cumulatively are sufficient to cause death but, it is not the opinion given that any singe injury caused in itself was sufficient to cause death. 24. But then, it is proved beyond doubt that the accused persons with an intention to voluntarily cause grievous hurt unauthorisedly entered the house of victim Balwant Singh and have caused the grievous hurt on the persons of the deceased Chiman Singh, who intervened in the scuffle so as to save the victim Balwant Singh. It also stands proved beyond doubt that the accused persons have voluntarily caused various injuries on the persons of victim Balwant Singh , Man Singh, Miss Hawa Kanwar, and Smt. Ugam Kanwar. 25. Thus, we are of the considered opinion that the learned trial court has committed no error in convicting the accused persons u/ss. 325/34, 452 and 323 IPC. 26. Coming to the quantum of punishment, it is to be noticed that the accused persons and the victims are close relatives. The incident has occurred all of sudden without there being any premeditation. More than 27 years have lapsed since the date of occurrence and the sentence of the accused Jor Singh was suspended by this Court vide order dated 6.9.82 on his furnishing personal bond in the sum of Rs.10,000/- together with two sureties of Rs.5,000/- each. By this time, the accused must have attained the age of about 65 years or more. Thus, in the totality of the facts and circumstances of the case, in our considered opinion, the maximum sentence of 7 years rigorous imprisonment deserves to be reduced. Accordingly, while maintaining the conviction of the accused persons u/ss. 325/34, 452 and 323 IPC,we consider it appropriate to reduce the punishment awarded to the accused Jor Singh for his conviction for offence u/s. 325/34 IPC by the learned trial court from 7 years' rigorous imprisonment with fine Rs.2,000/- and in default in payment of fine to further suffer 1 year's rigorous imprisonment to 4 years' rigorous imprisonment with a fine of Rs.2,000/- and in default of payment of fine to further suffer 1 year's rigorous imprisonment. The remaining punishments awarded to the accused appellant Jor Singh are maintained. The remaining punishments awarded to the accused appellant Jor Singh are maintained. The order of the learned trial Court granting benefit of probation to the accused Dalpat Singh and Veer Singh is not disturbed. 27. In the result, both the appeals stand dismissed . However, the punishment awarded by the learned trial court shall stand modified as indicated above. The accused -appellant Jor Singh shall surrender before the learned trial court forthwith to suffer the remaining sentence .Appeals Dismissed *******