JUDGMENT Mrs. Vijay Lakshmi, J. Challenge in this appeal is to the judgement passed by Special Judge, E.C. Act, Etah in Session Trial No. 156 of 1982 whereby the appellants namely Sudhir, Sudhakar and Sunil Kumar were held guilty, convicted and sentenced under section 302 read with 134 IPC with imprisonment for life. A fine of Rs. 2000/- was also imposed against each of them, in default of which, they were required to suffer a further period of rigorous imprisonment for six months. 2. We have heard Shri A.B.L. Gaur, learned Senior Advocate on behalf of the appellants and Sri Akhilesh Singh, learned Government Advocate assisted by Sri R.K. Singh and Sri Anand Tewari appearing for the State and have carefully gone through the records. 3. The prosecution version in nutshell is as follows: - The deceased Dharam Dev @ Munna, S/o complainant Prem Narain and, the appellants Sudhir, Sudhakar and Sunil Kumar were the residents of the same locality in district Etah. Appellants Sudhir and Sudhakar are the real brothers and Sunil Kumar is their cousin brother (Mausera bhai). According to prosecution case, the deceased Dharam Dev @ Munna had advanced some money by way of loan to the accused appellant Sudhir as a financial aid for opening and running a hotel. However, appellant Sudhir was not returning the loan on some pretext or the other despite several demands made by deceased Dharam Dev. It is alleged that two days prior to the present occurrence, at about 8.00 or 9.00 a.m., deceased Dharam Dev had gone to the hotel of Sudhir and had demanded back his money from the appellant Sudhir publicly. Some hot words and abuses had been exchanged between the two and Dharam Dev had slapped accused Sudhir during such altercation. The aforesaid incident as per prosecution version, is the motive behind the present occurrence. 4. It is said that on the fateful day i.e. 18.1.1981, at about 8: 30 p.m., when Dharam Dev was sitting in his house along with his father (complainant Prem Narain) and two sisters Km. Saroj and Madhu, after finishing some repair works on his motorcycle, suddenly appellant Sudhir having a dagger (Chhura) in his hand and appellants Sudhakar and Sunil Kumar, each armed with a knife stormed into his house through the main gate. Saroj and Madhu, after finishing some repair works on his motorcycle, suddenly appellant Sudhir having a dagger (Chhura) in his hand and appellants Sudhakar and Sunil Kumar, each armed with a knife stormed into his house through the main gate. They scolded Dharam Dev by saying that he has humiliated them publicly in the market by making the demand to return the loan and for that they would teach him a lesson. After that all the appellants attacked on Dharam Dev with Chhura and knives they were carrying. Dharam Dev in order to rescue himself ran towards courtyard and then towards his personal room situated in the north side after crossing another courtyard but immediately he returned towards south in the first courtyard. During all this process, the appellants were throughout chasing him and were giving chhura and knife blows to him. The deceased also grappled with them. During the scuffle and in the process of snatching away the chhura and knife, the appellants also sustained injuries in their hands. Ultimately Dharam Dev fell down in the southern verandah and succumbed to his injuries on the spot. After the occurrence, all the appellants managed to escape from the place of occurrence running to the roof through the staircase and thereafter jumping from the roof into Khandhar (ruins) of Shankar lal. All the appellants having prior acquaintance with the family members of the deceased were seen and identified by them in the moonlight and in the light of electric bulbs lighting everywhere at that time in the house. 5. The appellants were also seen and identified with dagger and knives having blood stains on those weapons while they were fleeing from the Khandhar of Shankar Lal by witnesses Hundi Lal, Mahendra, Ashok, Munna Lal and others. These witnesses then immediately rushed inside the house of complainant Prem Narain where they saw the dead body of Dharam Dev lying in the southern verandah in a pool of blood having stabbed wounds all over his body. The entire incident was narrated to them by the complainant who himself prepared a report (Ex. Ka-1) and went to the police station Soron with his servant Shiv Kumar and lodged the same. The entire incident was narrated to them by the complainant who himself prepared a report (Ex. Ka-1) and went to the police station Soron with his servant Shiv Kumar and lodged the same. On the basis of this written report, check FIR (Ex.Ka-10) was prepared according to which the date and time of occurrence is 8: 30 p.m. on 18.1.1981 and the report has been lodged on the same day at 9: 30 p.m. the distance between the place of occurrence and police station concerned is two furlongs. 6. The investigation of the case was taken up by S.O. Dori Lal Sagar (P.W.-12) who immediately rushed to the place of occurrence at about 10: 00 p.m, on the same day. He sent S.I. Shri Ramji Lal in search of the accused persons and interrogated the complainant Prem Narain and his two daughters Km. Saroj and Madhu who all were said to be the eye witness of the occurrence. In the same night at about 12: 30 a.m. the Investigating Officer interrogated other witnesses Ashok, Satya Bhan, Shiv Kumar and ors. Due to much delay and odd hours, the work of inquest was deferred and the inquest started in the following morning at about 8: 00 a.m. After inquest proceedings, the dead body was sent to post mortem. The Investigating Officer collected the sample of blood stained earth and plain earth from the floor and walls of the place of occurrence. He also took in possession a blood stained bed sheet (material Ex.-11) from the bed of deceased. 7. At about 9: 00 a.m. on 19.1.1981, i.e. the very next day of the occurence the two accused appellants Sudhir and Sunil Kumar were arrested from behind a temple with injuries on their hands and blood stains on their clothes. As much of the blood had oozed out from the injuries of the appellants they were first sent for medical examination and treatment by the Investigating Officer and after their medical examination and treatment they were interrogated. During their interrogation, appellant Sudhir admitted that the blood on his clothes was that of deceased Dharam Dev @ Munna. He confessed his guilt and intended to help the police in discovery of the knife and chhura i.e . the weapons used by them in the crime by informing that they had thrown those weapons in the Ganges river. During their interrogation, appellant Sudhir admitted that the blood on his clothes was that of deceased Dharam Dev @ Munna. He confessed his guilt and intended to help the police in discovery of the knife and chhura i.e . the weapons used by them in the crime by informing that they had thrown those weapons in the Ganges river. The Investigating Officer then took in his possession the blood stained clothes and prepared their recovery memos. Thereafter both the appellants Sudhir and Sunil Kumar were taken to Ganga ghat. The Investigating Officer took public witness Ram Swarup and Ramesh with them from the way and reached at "Har Ki Pauri" near Someshwar temple at Soron Ganga ghat. On the pointing out of the appellants, the two public witnesses Ram Swarup and Ramesh after making intensive search, in the water of Ganges, fished out a knife and a Chhura. (Ex-Ka-8) having blood stains on it. Both the weapons were sealed into two separate bundles and their recovery memos were prepared. 8. The third appellant Sudhakar was also arrested on the next day of the arrest of Sudhir and Sunil. On interrogation, he volunteered to hand over his clothes stained with blood and a country made pistol with live cartridges to the police. Appellant Sudhakar took away the police party to the shop of one Ganga Sahai and took out the country made pistol and its 14 live-cartridges of .315 bore and one English revolver and its 14 live-cartridges of .32 bore from a tin container. He informed the police that those weapons belonged to deceased Dharam Dev @ Munna and while fleeing from his place after the occurrence, he had picked up those weapons. 9. Shri R.P. Dixit, the Medical Officer, District Hospital, Etah (P.W.-4) conducted the autopsy on the dead body of deceased Dharam Dev on 20.1.1981 at 2: 00 p.m. and prepared the post mortem report Ex. Ka-2 which is as follows: - External Examination The deceased was of average built. Rigor mortis weakly present in upper extremity and fully present in lower extremity. No sign of decomposition was present. The clotted blood was present in both nostrils. Internal Examination Ecchymosis was present below the injuries of skull. Frontal bone was having sharp cut 6 cms. X 3 cms. deep below injury no. 4. The temporal bone was having cut 5 cms x linear below injury no. 14. No sign of decomposition was present. The clotted blood was present in both nostrils. Internal Examination Ecchymosis was present below the injuries of skull. Frontal bone was having sharp cut 6 cms. X 3 cms. deep below injury no. 4. The temporal bone was having cut 5 cms x linear below injury no. 14. Ecchymosis was present in all the injuries on the front and back of chest. 5th rib was fractured below injury no.3 left side. 8th and 9th ribs were also fractured below injuries nos. 20 and 21. Right and left pleura were broken. Clotted blood was present about one point and free blood was not present in both the pleural cavities. Right lung was cut 2 cms. x 1 cm x 2 cms deep below injuries nos. 20 and 21. left lung was cut 3 cms.x 1.5 cms below injury no.3. Both the chambers of the heart were empty. Post mortem injury was present on the abdomen. Peritoneum was cut below post mortem injury and food material was coming out from post mortem injury of the abdomen. Clean cut margins on the anterior surface of stomach 4 cms x 2 cms size through which the semi digested food material was coming out. About 5 oz. Semi digested food was present in the stomach. Small intestine was half full of food material and the large intestine was half full of faecal matter. Ante-mortem injuries.: - 1.Incised wound 6 cms x 1cmx skin deep on the dorsum of right hand extending upto base of ring finger, upper part. 2.Incised wound 4 cmsx1/2 cm x skin deep of right thumb. 3.Incised wound 3 cms x ½ cm on the right hand palmer aspect on hypothermia eminence muscle deep. 4.Incised wound 7 cms x 2cms x bone deep on the right forehead transversely placed semi circular posterior convexity towards skull x concavity towards the right eye-brow. Frontal bone was cut below the injury in area of 6 cms x linear x2 cms depth. 5.Incised wound 14 cms. x 2cms on the nose oblique x extending on the right side face upto angle of mandible cartilage of nose was cut clearly, nasal openings were visible through the wound. Maxilla was cut below the injury in the same line. 6.Incised wound 1 cm x ½ cm on the right side face, skin deep near the angle of mandible. x 2cms on the nose oblique x extending on the right side face upto angle of mandible cartilage of nose was cut clearly, nasal openings were visible through the wound. Maxilla was cut below the injury in the same line. 6.Incised wound 1 cm x ½ cm on the right side face, skin deep near the angle of mandible. 7.Incised wound 12 cms x 5 cms on the right side of neck vertically placed, tissue deep. 8.Incised wound 4 cms x 2 cms on the left side front of chest 3 cms, lateral to mid line. 9.Incised wound 2 cms. x 2 cms x S/c tissue deep on the right side front of chest 1 cm from mid line obliquely placed. 10.Incised wound 2 cms x 1 cm on the right side front of chest 10 cms below the nipple of 3 cms from mid line. It was subcutaneous tissue deep. 11.Two incised wounds- one was 1 cmx1/4 cm and other was 3 cms x ½ cm both subcutaneous tissue deep on the lower part of abdomen 5 cms apart 4 cms below the umbilicus. 12.Incised wound 3 cms x ½ cm x skin deep on the right iliac fossa. 13.Incised wound 5 cms x 2 cms on the right occipital transversely placed x scalp deep. 14.Incised wound 5 cms x 1 cm on the left side of skull 12 cms above the right ear vertically placed bone deep. There was 1 mm. Deep sharp cut in the wound in an area of 4 ½ cm x linear. 15.Incised wound 3 cms x 1 cm on the back right side neck vertically placed S/c tissue deep. 16.Incised wound 4 cms x 1 cm. S/c tissue deep on the back of right shoulder. 17.Incised wound 6 cms x 1.5 cm x muscle deep on the right scapular region. 18.Incised wound 5 cms x 1.5 cm x skin deep on the right side back of chest in mid line adjacent region. 19.Incised wound 1 cm x ½ cm on the back of right side chest, 2 cms lateral to mid line x and 1 cm above injury no. 18. It was subcutaneous tissue deep. 20.Incised wound 11 cms x 4 cms on the back of right side chest 3 cms from mid line. I was cavity deep 8th and 9th ribs were clearly below injury posteriorly. 18. It was subcutaneous tissue deep. 20.Incised wound 11 cms x 4 cms on the back of right side chest 3 cms from mid line. I was cavity deep 8th and 9th ribs were clearly below injury posteriorly. 21.Incised wound 5 cms x 2 cms on the right side back of chest. In the posterior below 10 cms from the inferior angle of scapula. It was also cavity deep. 22.Incised wound 1 cm x ½ cm on the outer side of right leg 5 cms below x outer to the knee joint. It was skin deep. Post mortem injury: - Incised wound 7 cms x 5 cms x cavity deep on the left side front of abdomen 3 cms below the body margin of rib. Stomach was opened up and semi digested food material was coming out of wound. The doctor at the time of post mortem took in possession from the dead body one Kurta Ext.1, one Baniyan Ext.2, one belt Ext.-3, one Janeu Ext. 4, one pant Ext.5, one underwear Ext.6 and a thread coupled with a Tabiz Ext.7 from the right arm and sealed them in a bundle which was handed over to the Constables, who brought the dead body. 10. In the opinion of the doctor, all the incised wounds could have been caused by knife or Chhura. He also opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries which were sufficient to cause the death of the victim in the ordinary course of nature. He estimated the duration of death at the time of post mortem to be about 1¾ day. 11. Shri Dori Lal, the Investigating Officer (P.W.-12) interrogated Shri Venkatacharya, the Manager of Canara Bank, Etah and obtained the bank statements of deceased Dharam Dev from him. He searched for the witnesses Hundi lal and Mahendra but could not find them. Consequently, after completing investigation, he submitted charge sheet Ex-Ka 32 u/s 302 of IPC against all the three appellants. A separate charge sheet Ex-Ka-33 was submitted against appellant Sudhakar only under section 25 of Arms Act. 12. In order to prove its case, the prosecution in this case has produced 13 witnesses in all, out of which only five witnesses are of fact and rest are formal in nature. A short description of these witnesses is as follows: - 13. 12. In order to prove its case, the prosecution in this case has produced 13 witnesses in all, out of which only five witnesses are of fact and rest are formal in nature. A short description of these witnesses is as follows: - 13. P.W.-1 is the complainant Prem Narain, who is the father of the deceased and P.W.-2 Km. Saroj is sister of the deceased. Both these witnesses are said to be the eye witnesses of the occurrence. P.W.-3 Satya Bhan has been produced by the prosecution to prove the motive behind the occurrence i.e. earlier quarrel which had taken place at the hotel of Sudhir two days prior to the occurrence. He is said to be present at that time at the hotel. P.W.-6 Ashok is also a witness of fact who has allegedly seen the three accused fleeing from the spot with dagger and knives in their hands while they were coming out from the 'Khandahar' of Shankar lal after commission of offence. P.W.-7 Ram Swarup is the witness who has discovered the knife and Chhura by entering into water of river Ganges at the instance of accused Sudhir and Sunil Kumar. 14. The list of formal witnesses is as follows: -P.W.4 is Dr. R.P. Dixit who has conducted the post mortem, P.W.-5 is Sri R. K. Padhi, Bank Officer of Canara Bank who has been produced to prove the payment of cheques drawn by deceased in favour of appellant Sudhir. P.W.8 is Head Constable Pannalal, P.W.-9 is Head Constable, Ishwar Dayal, P.W.10 is Constable Vijay Pal Pathak, P.W.-11 is S.I. Hem Singh Sharma, P.W.12 is the Investigating Officer-Shri Dori Lal Sagar, P.W.-13 is Constable Rajendra Pal, who carried the sealed bundles from the police station to Sadar Malkhana. Besides it, Constable Moti lal who brought the dead body to the Mortuary for post mortem, has been produced as C.W.-1. 15. Apart from the aforesaid oral evidence, the prosecution has produced a number of documentary evidences from Ex.Ka-1 to Ex.Ka-36. A list of twenty two material Exhibits produced by the prosecution in Court and several photographs of the place of occurrence and of the dead body are also on the record. 16. After conclusion of the prosecution evidence, all the appellants were examined under section 313 Cr.P.C. In their aforesaid statements they denied the allegations. A list of twenty two material Exhibits produced by the prosecution in Court and several photographs of the place of occurrence and of the dead body are also on the record. 16. After conclusion of the prosecution evidence, all the appellants were examined under section 313 Cr.P.C. In their aforesaid statements they denied the allegations. However the two appellants Sudhir and Sunil Kumar stated that on 18.1.1981 at about 10 or 10: 30 p.m. when they returned to their home after closing their hotel, they were informed by their family members that their sister Km. Suman aged about 15-16 years had been taken away by Dharam Dev to his house and she had not returned since then. On hearing this, both the accused, suspecting some foul play rushed up to the house of Dharam Dev. While leaving, they kept two kitchen knives in their pockets in self defence, apprehending some danger out of fear of deceased Dharam Dev, who was a man of bad character with criminal antecedents. Reaching at the door of the house of Dharam Dev, they made a call but when they did not receive any response, they entered into the house through main gate and reached to the bedroom of Dharam Dev where they saw their sister Km. Suman with the deceased. Seeing the appellants Km. Suman cried out "Bhaiya Bachao". On this Dharam Dev got her mouth shut by putting his hand over it. The two brothers (appellants) somehow managed to rescue their sister from the clutches of the deceased during which the deceased attack them with a knife. The blows of knife were taken by the appellants Sudhir and Sunil on their hands which caused several injuries on their hands. In self defence, they also took out their own knives and assaulted deceased Dharam Dev who ultimately succumbed to his injuries. Seeing this, out of fear, they fled away from the main gate of the house. Meanwhile, their sister Suman had already escaped from the house. 17. Appellant Sudhir in his statement u/s 313 Cr.P.C. has denied to have taken any loan from deceased Dharam Dev for running his hotel although he has not disputed the execution of cheques drawn in his favour by the deceased. Appellant Sudhir has alleged that deceased Dharam Dev @ Munna was a debauch. 17. Appellant Sudhir in his statement u/s 313 Cr.P.C. has denied to have taken any loan from deceased Dharam Dev for running his hotel although he has not disputed the execution of cheques drawn in his favour by the deceased. Appellant Sudhir has alleged that deceased Dharam Dev @ Munna was a debauch. He used to take food and wine from his hotel on credit and on accumulation of the huge dues, he used to make payments through cheques or sometimes in cash. Both the appellants Sudhir and Sunil Kumar have further alleged that police had arrested them from their house and nothing was recovered at their pointing out. All the said recoveries have been planted by the police at the instance and under the pressure of complainant Prem Narain who is an influential and a rich person. 18. It is pertinent to mention here that apart from the statement under section 313 Cr.P.C. and a suggestion to this effect during cross examination of P.W. 1, the defence has not led any evidence in proof of its plea of grave and sudden provocation and exercising right of private defence by the appellants. The defence of the third accused Sudhakar is that of total denial. He has stated that he was not present at the place and time of occurrence. He being the real brother of Sudhir has been roped in this case out of enmity of his brother so that he may not be able to do parivi on behalf of two other accused. 19. The learned Sessions Judge (Trial Court) after considering all the evidence as mentioned above, found the appellants guilty and accordingly, convicted and sentenced them as aforesaid. 20. The learned Sessions Judge found the prosecution case reliable and the witnesses produced by it worthy of credence and accordingly held that prosecution has been successful in proving its case against all the accused persons beyond any shadow of reasonable doubt. 21. The learned Sessions Judge refused to extend any benefit to the accused persons on the basis of their plea of exercising right of private defence by holding that the right of private defence cannot exceed to such an extent so as to entitle the accused persons to inflict as many as 22 knife blows or more causing several incised wounds on the body of the deceased. Learned Trial Court also held that there was no grave and sudden provocation so as to bring this case under any of the exception of Section 300 of I.P.C. Regarding the participation of appellant Sudhakar in the crime the learned lower court was of the view that his participation cannot be doubted as he had been seen participating in the crime by the inmates present in the house and also while fleeing from the scene of crime by P.W.-6 Ashok. However, learned Sessions Judge acquitted the appellant Sudhakar from the charges u/s 25 Arms Act on the ground of its not being proved beyond reasonable doubt. 22. Under these circumstances, the two questions to be determined in the present appeal are - (1)whether the prosecution has been able to prove its case against all the appellants or any of them beyond reasonable doubt which includes the question whether appellant - Sudhakar was involved in the crime or not ? (2)whether the plea of exercise of right of private defence and grave and sudden provocation taken by the two accused Sudhir and Sunil Kumar can be accepted ? 23. The evidence available on record shows that P.W.1 Prem Narain, the complainant and father of the deceased has corroborated the prosecution version as mentioned in the FIR (detailed in earlier part of the judgement) during his statement in the court. He has also stated about the alleged motive behind the occurrence which according to him was demanding back of the loan by his son (deceased Dharam Dev) from appellant Sudhir and the quarrel ensuing due to which two days prior to the occurrence P.W.-1 has proved Ex-Ka-1 (FIR) by identifying his handwriting and signatures on it. 24. The defence has tried to shake his (P.W.-1's) credibility by drawing the attention of this court to the admissions made by him during his cross examination. P.W.-1 has admitted the fact that in 1971 a criminal case was instituted against him in which he and his deceased son Dharam Dev were accused, that case is still pending in the High Court. The complainant of that case was one Kishan Gopal, who has been murdered and in that murder case of Kishan Gopal, his son (deceased) Dharam Dev was the accused. He has also admitted that he was once arrested and was sent to jail for 20 months. 25. The complainant of that case was one Kishan Gopal, who has been murdered and in that murder case of Kishan Gopal, his son (deceased) Dharam Dev was the accused. He has also admitted that he was once arrested and was sent to jail for 20 months. 25. The defence has pointed out some more admissions made by P.W.-1 to assail the prosecution case for example P.W.-1 has stated that since prior to 1½ months from the occurrence, he was suffering from "Motijhala" (measles) disease and on the day of occurrence, after a long gap, he was given some semi liquid food. He has further stated that his servant Shiv Kumar was not present at his house at the time of occurrence. He has admitted the fact that from the bed of Dharam Dev, the police had recovered a blood stained bed sheet. He has also stated that he does not know about any document or receipt of loan given by Dharam Dev to appellant Sudhir. However, he has stated that about Rs.6000/-or 7000/- were due on accused Sudhir. 26. P.W. 1 has admitted the fact that accused Sudhir had three sisters out of whom one was unmarried, who died in December, 1984, but he has expressed his ignorance about the name and age of that unmarried sister of accused Sudhir. P.W.-1 has stated that he owns 15 or 16 houses and 80 shops in Soron and his deceased son Dharam Dev did not use to do any work except management of his properties. He has denied the suggestions given by the defence that at about 10: 00 p.m. when the two brothers (accused appellants) reached to his house searching their sister Km. Suman and saw the deceased Dharam Dev with his sister on his bed committing rape on her, the accused appellants tried to rescue their sister but Dharam Dev made attack on them with his knife and during the course of scuffle which ensued while rescuing their sister the appellants inflicted injuries in their defence on Dharam Dev. 27. P.W.-2 Km. Saroj has narrated almost the same facts about the occurrence and there is no need to repeat the same. During her cross examination, she has stated that her father (P.W.-1) was ill since one month prior to the occurrence. 27. P.W.-2 Km. Saroj has narrated almost the same facts about the occurrence and there is no need to repeat the same. During her cross examination, she has stated that her father (P.W.-1) was ill since one month prior to the occurrence. He had not taken any food for about one month as a result he had become very weak and had to take some one's help even to rise from the bed for attending the natural call. When cross examined she has stated that within two minutes after the murder of his brother, witnesses Munnalal, Kanhaiya lal, Hundi lal and Mahendra etc had come to her house but no one went to the police station along with his father to lodge the FIR, only his servant Shiv Kumar had gone to the police station to lodge the FIR along with her father. 28. P.W.-1 and P.W.-2 are the only two eye witnesses of the occurrence in this case. The learned counsel for the appellants has vehemently argued that the entire prosecution case rests on the testimony of these two witnesses, who are the star witnesses in this case. But the contradictions embellishments and improvements more-so the admissions made by them, falsify the whole prosecution case. Learned counsel for the appellants has contended that the FIR itself becomes doubtful in wake of the fact that the informant, due to weakness caused by long illness was unable to even rise from the bed. 29. P.W.-3 Satya Bhan is the witness of earlier occurrence i.e. of quarrel which is alleged to have taken place two days prior to the occurrence at the hotel of Sudhir which as per prosecution version is the motive behind the occurrence. P.W.-3 has stated that at that time, he was present at the hotel and was taking tea. P.W.-3 has stated that two days prior to the occurrence, at about 8.00 or 9.00 a.m. when he was taking tea at the hotel of Sudhir, Dharam Dev came and demanded money from Sudhir which he had given to Sudhir as a loan. Sudhir stated that why he was insulting him by demanding money from him in front of public. On this, Dharam Dev slapped Sudhir. Hot words and abuses were exchanged between them. P.W. 3 has further stated that at that time the witnesses Ambarish and Ramesh etc. Sudhir stated that why he was insulting him by demanding money from him in front of public. On this, Dharam Dev slapped Sudhir. Hot words and abuses were exchanged between them. P.W. 3 has further stated that at that time the witnesses Ambarish and Ramesh etc. were also present on the shop who intervened and calmed down the two fighting persons. 30. P.W. 4 Dr. R.P. Dixit has deposed about the post-mortem report prepared by him, which has already been discussed in detail earlier and need not be repeated here in again. 31. P.W. 5, R.K. Padhi, is the Field Officer in Canara Bank, Etah who has been produced by the prosecution to prove the fact that the deceased had given loan to appellant Sudhir. He has come to the court with the ledger account of deceased Dharam Dev and has deposed that on 3.10.1978 a cheque of Rs. 750/-, on 17.10.1978 a cheque of Rs. 250/-, on 20.10.1978 a cheque of Rs. 500/- and on 29.5.1979 a cheque of Rs. 300/- was issued by the deceased in the name of Sudhir Kumar. 32. Thus, the statement of P.W. 4 only proves that a total amount of Rs. 1800/- by the said four cheques were paid to Sudhir Kumar by the deceased. It is noteworthy that the appellants Sudhir and Sunil in their statements under Section 313 Cr.P.C. have stated that Dharam Dev used to make payments for his dues of fooding at the hotel through cheques also. Whether these cheques were given by the deceased for payment of hotel bills or as a loan has not been proved by the prosecution. 33. P.W. 6 Ashok is the witness who had seen the appellants while they were allegedly fleeing from the Khandahar of Shankar Lal with blood stained Chhura and knives in their hands and having blood stains on their clothes also. He has stated that at that time he was returning to his home from Ganga Ghat after having a Darshan at Someshwar temple. When he reached near the turn of the lane, he saw the appellants going with fast steps. In the light of the electricity bulb and the moon he identified all of them. At that time witnesses Hundi Lal, Kanhaiya Lal and Mahendra Prakash had also reached there and they had also seen the appellants. When he reached near the turn of the lane, he saw the appellants going with fast steps. In the light of the electricity bulb and the moon he identified all of them. At that time witnesses Hundi Lal, Kanhaiya Lal and Mahendra Prakash had also reached there and they had also seen the appellants. P.W. 6 has further stated that he with other witnesses went inside the house of the complainant Prem Narayan and found the inmates crying and weeping who told them about the entire incident. 34. P.W. 7 Ram Swaroop is a witness of inquest report and also of the discovery of the knife and Chhura from the water of Ganges. He has stated that he and Ramesh were taken by the police party towards Ganga river. Daroga ji had told him that they were going to recover the knife and Chhura at the instance of two accused persons Sudhir and Sunil. On reaching Ganga Ghat, accused Sunil pointed out towards that place at Ganga water where he had thrown the knives and Chhura. After that he and other witness Ramesh entered inside the water and fished out one Chhura and knife from the waters both of which were found stained with blood. 35. P.W. 8 is Head Constable Panna Lal of Sadar Malkhana, Etah. He has deposed that on 28.2.1981 Constable Rajendra Prasad of P.S. Soron deposited 14 sealed bundles in the Malkhana. He has further stated that on 24.7.1981 all these articles were taken back by the same Constable Rajendra Prasad for sending them to Chemical Examiner, Agra. 36. P.W. 9, Head Constable Ishwar Dayal, P.W. 10, Constable V.P. Pathak, P.W. 11, S.I. Nem Singh, P.W. 13 Constable Rajendra Prasad and C.W. 1 Constable Moti Lal are all police officials who have deposed about their respective roles during investigation. 37. P.W. 12, Inspector Dori Lal, who was the S.H.O. of P.S. Soron is the Investigating Officer of this case. 38. Learned Government Advocate has vehemently argued that it is a case of direct evidence. The two eye witnesses P.W.-1 and P.W.-2 being father and sister of the deceased are most natural and reliable witnesses. Their presence at the spot cannot be doubted. 38. Learned Government Advocate has vehemently argued that it is a case of direct evidence. The two eye witnesses P.W.-1 and P.W.-2 being father and sister of the deceased are most natural and reliable witnesses. Their presence at the spot cannot be doubted. Moreover the accused persons in their statements recorded under Section 313 Cr.P.C. have admitted the factum of scuffle taking place between them and deceased Dharam Dev on 18.1.1981 at about 10: 30 p.m. in the house of P.W.-1 complainant Prem Narain. It is also not disputed by the defence that the electric bulbs were lighting in every part of the house at the time of occurrence and it was a moonlit night. It is not disputed that the accused and the deceased had visiting terms with each other. The appellants have also admitted that while leaving their house, they had kept with them kitchen knives, although they have stated that this was done in self defence. Learned G.A. has submitted that thus, in a broad sense, all the features relevant in a criminal case i.e. the date, time, place, sufficient light, the weapons used and manner of occurrence, are admitted to two appellants Sudhir and Sunil Kumar. It has been contended that all the above facts admitted by the defence are not required to be proved by the prosecution in this case. 39. Learned GA has further argued that although the defence has claimed the right of private defence, yet from the facts of the case, it is abundantly clear that the act of the appellants was not done while exercising such right, but it was a deliberate act on their part and the evidence led by the prosecution clearly shows that all the appellants in a pre-planned manner in a state of cool mind, after taking knives from their house with them, went to the house of deceased Dharam Dev and mercilessly assaulted him by those knives to such an extent that he died on the spot. While drawing the attention of this Court to the post mortem report learned AGA has submitted that a perusal of post mortem itself shows that 22 ante mortem incised wounds have been found on various part of the body of the deceased. More-so, the accused person did not spare him even after his death. While drawing the attention of this Court to the post mortem report learned AGA has submitted that a perusal of post mortem itself shows that 22 ante mortem incised wounds have been found on various part of the body of the deceased. More-so, the accused person did not spare him even after his death. This fact is also evident from the description of one post mortem injury found on the body of the deceased which is incised wound 7 c.m. X 5 c.m.x cavity deep on the left side front of abdomen from where semi-digested food was found coming out. Learned Government Advocate has submitted that after considering all these aspects, learned Sessions Judge has rightly convicted and sentenced the appellants for life imprisonments. The appeal has no legs to stand and it is liable to be dismissed. 40. On the other hand, learned counsel for the appellants Sri A.B.L. Gaur has contended that in this case the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt where as the accused-appellants have been able to successfully probablise and establish their claim of exercising right of private defence. On behalf of appellants it has been vehemently argued that the facts clearly show that the deceased had forcibly kidnapped their minor sister Suman who was found in the bed room of deceased by the appellants when they reached to the house of deceased. After seeing her brothers, Suman cried for help. The deceased shut her mouth by putting his hand on it. The appellants tried to rescue their sister from the clutches of deceased and a scuffle took place between them. During the scuffle both sides received injuries. The injury reports of appellants Sudhir and Sunil which are available on the record Exs. Kha- 4 and Kha-5 demonstrate that several incised wounds have been found on their wrist, palm, fingers and dorsal aspect of the hands which sufficiently prove that the appellants had tried to save themselves from the attack made on them by the deceased from some sharp edged weapon. 41. Learned senior counsel for the appellants Sri A.B.L. Gaur has assailed the credibility of the prosecution case on many other counts also. 42. 41. Learned senior counsel for the appellants Sri A.B.L. Gaur has assailed the credibility of the prosecution case on many other counts also. 42. His first submission is that the motive as alleged by the prosecution i.e. quarrel between Sudhir and Dharm Dev due to demanding back of loan amount publicly, is neither fully proved nor appears probable and sufficient cause for committing such a heinous crime and inflicting so many injuries on the body of the deceased. The learned defence counsel has argued that the alleged scuffle between the deceased and the accused on the issue of returning the amount of loan is said to have taken place two days earlier in the morning at the hotel of the appellants. It could not have been the immediate motive behind such a grave occurrence. Moreover, the aforesaid incident of quarrel which is said to be the motive behind this occurrence, has not been sufficiently proved by the prosecution as the witnesses of such scuffle Amrish and Ramesh have not been produced by the prosecution. It has been vehemently argued that the four cheques given by the deceased to accused Sudhir, in proof of which the prosecution has produced P.W.-5. Sri R.K. Pandey, Field Officer of Canara Bank, Etah, does not prove anything more than that the deceased had made a total payment of Rs.1800/- only, to accused Sudhir. Thus, the allegation of the complainant that an amount of Rs.6,000/- given by Dharam Dev to appellant Sudhir by way of loan was outstanding on accused Sudhir becomes, false. It is contended that the prosecution has also failed to prove that this money through aforesaid cheques was given to appellant Sudhir by the deceased as a loan. It does not appeal to the reason that only on such a small issue i.e. demanding back Rs.1800/-from the appellants publicly, the appellants would react in such a strong manner and would go to the extent of committing murder of the deceased with such a brutality, that too, after two days of such demand. There was no reason as to why the accused could not take revenge at the same time when the deceased Dharam Dev humiliated accuse Sudhir by making demand publicly ? There was no reason as to why the accused could not take revenge at the same time when the deceased Dharam Dev humiliated accuse Sudhir by making demand publicly ? Learned counsel for the appellants has submitted that the aforesaid motive as alleged by the prosecution does not appear to have so much strong guiding force so as to persuade them to commit such a heinous crime, in such a daring manner. 43. The defence has contended that there appears to be some other immediate motive for the accused person to go to the house of the deceased with the knives. In the totality of the circumstances, the reason which appears more probable is what the appellants Sudhir and Sunil have stated in their statement under section 313 Cr.P.C. and regarding which a suggestion has also been given to P.W. 1 during his cross examination by the defence that when they returned to their house after closing the hotel and were informed that the deceased had forcibly taken away their minor sister with him, they, suspecting some foul play, rushed immediately to the house of deceased keeping the kitchen knives in their pockets as prestige and chastity of their sister was in imminent danger and seeing their sister in the clutches of Dharam Dev who was tryhing to molest her, in his bed room they in a fit of grave and sudden provocation and also to defend their sister being ravished and also to defend their own selves, used the kitchen knives which they had kept with themselves while leaving their house. 44. Learned counsel for the appellants has submitted that the above plea of the defence is not an after thought but from the very beginning, since the time of interrogation, the two accused persons are throughout consistent on this plea which is evident from the statement of the Investigating Officer, P.W. 12, who has admitted this fact that accused Sudhir had stated before him that the deceased Dharam Dev was having illicit relations with his wife and sister at gun point. The Investigating Officer has also admitted the fact that the deceased Dharam Dev was a man of bad character and he used to molest the girls and women which probablises the defence version of the story. 45. The Investigating Officer has also admitted the fact that the deceased Dharam Dev was a man of bad character and he used to molest the girls and women which probablises the defence version of the story. 45. The second ground on which learned counsel for the appellants has assailed the prosecution case as doubtful is that the F.I.R. in this case is ante-timed. Learned counsel has challenged that the facts clearly show that the F.I.R. in this case was not ready even at the time of inquest proceeding conducted in the morning of next day. Learned counsel for the appellants has submitted that it is admitted by P.W.-2 Km. Saroj that her father was lying ill for the last one and half month and was not even able to walk or rise from the bed for doing his daily routine work. P.W.-2 has categorically stated that her father needed the support of other person even to attend the natural call. In such situation, it cannot be believed that the complainant was able to go to the police station immediately to lodge the F.I.R. at 9: 30 p.m. i.e. within one hour of the occurrence as alleged by the prosecution. Moreover, there is no answer with the prosecution that despite the fact that several witnesses had reached his house just after the occurrence within a couple of minutes, why no body accompanied the complainant to the police station to lodge the F.I.R.? 46. It has been next argued that the complainant Prem Narain is not a truthful witness and he has made false statements from the very beginning about the prosecution case. The inquest report shows that in column No.2 of front page which is meant for the name of a person who gave the information about the dead body, the name of Shiv Kumar is mentioned. It is also clearly evident from perusal of the inquest report that the name of complainant Prem Narain has been added later on, above the name of Shiv Kumar. In the inquest report there is cutting on Section 324 I.P.C. and 302 has been written after that. Learned counsel has argued that al these facts clearly shows that the F.I.R. (Ex-Ka-1) was not in existence at the time of inquest. In the inquest report there is cutting on Section 324 I.P.C. and 302 has been written after that. Learned counsel has argued that al these facts clearly shows that the F.I.R. (Ex-Ka-1) was not in existence at the time of inquest. This fact is admitted by the Investigating Officer himself that he first wrote section 324 I.P.C. on the front page at the top of inquest report and that he corrected the same by mentioning Section 302 I.P.C. without making his initial on this over writing. One more fact to show that P.W. 1 Prem Narayan-complainant is not a truthful witness as he has tried to conceal the age of Km. Suman, sister of appellants. Although he has admitted that Sudhir had three sisters, out of them two are married and the third was unmarried who died in December, 1984 yet he does not know the name and age of third sister. This third sister was none else but Km. Suman who was a minor but P.W. 1 has deliberately expressed his ignorance about her age with a view to rebut the plea of defence that the deceased attempted or committed rape on her. 47. The third argument advanced by learned counsel for the appellants is that another circumstance giving rise to the probability of the defence plea is that the bed sheet of the deceased was found stained with blood. Besides it, stains of blood were also found on the wall of the room of the deceased which makes the defence plea more probable that actually scuffle originated in the bed room of the deceased and not in the verandah where the deceased was sitting after repairing of his motorcycle as is the prosecution case. 48. The fourth circumstance pointed out by the learned counsel for the appellants to show the probability of the defence plea is that, had the deceased been attacked by the assailants on the chair in the verandah, some blood should have been found on the chair or in the verandah. The police has recovered screw driver, pliers and pieces of papers from the table where the deceased was sitting. However, despite the scuffle between the deceased and the accused person, all these things have been found remained intact at their places and had not even fallen down from the table. 49. The police has recovered screw driver, pliers and pieces of papers from the table where the deceased was sitting. However, despite the scuffle between the deceased and the accused person, all these things have been found remained intact at their places and had not even fallen down from the table. 49. Learned counsel for the appellants has further contended that it is strange that despite the fact that Dharam Dev was attacked by three assailants, none of the three house in-mates namely, the complainant and his two daughters, sitting just a few feet away from the deceased, came to rescue him by intervening and remained silent spectators. The defence has further contended that there is a criminal history of both- the complainant Prem Narain and his son deceased Dharam Dev as Prem Narain has himself admitted these facts. 50. The veracity of the prosecution story is also challenged on the ground that medical evidence in this case, does not coincide with the weapon used and the manner of occurrence. Learned counsel for the appellants has contended that apparently the Chhura (Ext. 8) produced before the court, was curved one. Thus, it could not have been used as an instrument of stabbing or piercing. Hence the incised wounds found on the body of the deceased could not have been the result of this Chhura. That was the reason why the prosecution could not dare to put any question to the doctor, who conducted the post-mortem, by showing the Chhura that any of the incised wounds found on the dead body could be the result of that Chhura. Thus, the defence plea appears more probable that accused Sudhir and Sunil had only domestic knives with them and they were not carrying any Chhura with them as alleged by prosecution. The story of recovery of Chhura at the instance of appellants Sudhir and Sunil also becomes suspicious on this ground. 51. The defence has argued that the injuries on the hands and palms of the two accused Sudhir and Sunil clearly show that they took the blows of the knife given by the deceased on their hands. Due to which their clothes got blood stained with their own blood. Learned counsel for the appellants has submitted that the reports of the serologist and the chemical examiner clearly show that the blood found on the clothes of the appellants was their own blood. 52. Due to which their clothes got blood stained with their own blood. Learned counsel for the appellants has submitted that the reports of the serologist and the chemical examiner clearly show that the blood found on the clothes of the appellants was their own blood. 52. One more ground on which the defence has questioned the reliability of prosecution story is that all of the material witnesses are highly partisan, interested and inimical witnesses. Moreso, Shiv Kumar, the servant of the complainant who had accompanied the complainant Prem Narayan to the police station for lodging the F.I.R., has not come forward to support the prosecution case. 53. Lastly it has been argued that the alleged recovery of Chhura from the water of Gangas like that of pistol at the instance of Sudhakar are planted recoveries. Even the learned Sessions Judge has disbelieved the story of recovery of pistol, revolver and cartridges at the instance of appellant Sudhakar and has acquitted Sudhakar from the charges of Section 25 Arms Act which clearly shows that the police has concocted a false story to falsely implicate the appellants. 54. After carefully scrutinising the entire evidence available on record and having considered the rival contentions of learned counsel from both sides, we are of the firm view that prosecution has not come with clean hands and the I.O. has not acted fairly in this case. Though the I.O. was duty bound to do fair investigation and to find out the genesis of the occurrence, however, for the reasons best known to him he has not bothered to interrogate some most important witnesses of this case i.e. Km. Suman and the ladies of the family of accused persons who had informed the appellants that Dharam Deo had taken away Km. Suman with him. During his cross-examination the I.O. has admitted the fact that during interrogation Sudhir had alleged that deceased Munna @ Dharam Dev had illicit relation with his sister and wife at gun point, despite that he (the I.O.) did not consider it necessary to record the statements of Suman/sister and wife of the appellant. Suman with him. During his cross-examination the I.O. has admitted the fact that during interrogation Sudhir had alleged that deceased Munna @ Dharam Dev had illicit relation with his sister and wife at gun point, despite that he (the I.O.) did not consider it necessary to record the statements of Suman/sister and wife of the appellant. The I.O. has stated that he had interrogated the shop keepers and the neighbours Om Prakash, Arun Kumar, Kali Charan, Ram Prakash Prasad, Sohan Lal, Ram Charan, Ram Prakash, Madhur Lal, Satya Narayan, Radhey Shyam, Suraj son of Murari Lal, Suraj son of Bhagwati Dayal, Brij Kishor and Hari Shankar. During their interrogation the fact came to light that deceased Dharam Dev used to molest the girls but due to his fear no one dared to oppose him, but at the same time the I.O. has admitted that despite having got knowledge of this fact he did not record the statements of the sister and wife of the appellants. 55. The I.O. has also admitted the fact that when he arrested the appellants Sudhir and Sunil, Sudhir informed him that due to profused bleeding from his wounds throughout the night,he was not feeling well so he first sent the appellants for medical examination. This statement of I.O. which finds corroboration with injury reports of appellants Sudhir and Sunil clearly shows that appellants had also received the injuries in the same occurrence. 56. Although in this case there exists some infirmities and discrepancies which make the prosecution story doubtful. Yet, on the basis of the aforesaid infirmities, the prosecution story cannot be discarded because of the admissions/confession made by appellants Sudhir and Sunil themselves in their statements under Section 313 Cr.P.C.. 57. The appellants Sudhir and Sunil in their statements under Section 313 Cr.P.C. have admitted their presence at the place of occurrence at about 10.30 P.M. on the fateful night. They have also admitted the fact that they had knives with them at that time, although it has been stated that those were the kitchen knives meant for cutting vegetables. The appellants have also admitted the fact that they had inflicted injuries on Dharam Dev by those knives, although it has been stated that they had to use knives in self defence because Dharam Dev first attacked on them with his own knife. 58. The appellants have also admitted the fact that they had inflicted injuries on Dharam Dev by those knives, although it has been stated that they had to use knives in self defence because Dharam Dev first attacked on them with his own knife. 58. It is the basic principle of law that "facts admitted need not be proved". Therefore, by the aforesaid admission of the appellants Sudhir and Sunil, their presence with knives on the spot at the date and nearabout time (according to prosecution it was at about 8.30 P.M. whereas the defence case is that it was about 10.30 P.M.) cannot be doubted and it cannot be said that no such occurrence had taken place in which the appellants Sudhir and Sunil were not involved in the occurrence. 59. So far as the involvement of appellant Sudhakar in the case is concerned, although Sudhakar in his statement under Section 313 Cr.P.C. taking the plea of alibi has totally denied his involvement in this case by stating that he was not present at the spot at the time of occurrence. 60. Yet considering the facts and circumstances, we are of the view that he cannot be absolved of his liability to prove his "plea of alibi" only on the basis of his statement made under Section 313 Cr.P.C. 61. Sudhakar has simply denied his involvement in the crime by saying that "main ghatna mein shamil nahi tha". The law regarding the "plea of alibi" is very clear that it must be specifically pleaded and proved beyond doubt by the person pleading it. The legal position regarding the plea of alibi is well established by the Apex Court in a catena of judgements. 62. In Narendra Singh Vs. State of M.P., AIR 2004 SC 3249 , the Apex Court has given the clear verdict that - "the burden to prove alibi is on the accused." 63. In another case Ram Bali Vs. State of U.P., AIR 2004 SC 2329 it has been held by the Apex Court that - "when no material was produced by the accused in support of the plea, the plea of alibi cannot be accepted." 64. In Krishnan Vs. In another case Ram Bali Vs. State of U.P., AIR 2004 SC 2329 it has been held by the Apex Court that - "when no material was produced by the accused in support of the plea, the plea of alibi cannot be accepted." 64. In Krishnan Vs. State AIR 2003 SC 2978 , the accused in support of alibi had produced some evidence of general nature but the court held that - "on the basis of evidence of general nature not specifically ruling out the possibility of the presence of the accused at the time of occurrence, the plea is not acceptable." 65. The burden of proving that the appellant was not present at the spot was on the defence by means of satisfactory evidence but the defence has not led any evidence in support of such plea. 66. The facts of the case in hand clearly show that there is no iota of evidence on the record that the appellant Sudhakar was not present in the village at the time and place of occurrence. Therefore, only on the basis of general denial by him that he was not present at the spot or he was not involved in the occurrence, it cannot be assumed that he was somewhere else having no involvement in the occurrence. The witness P.W. 6, Ashok, has categorically stated about the involvement of the appellant Sudhakar by stating that in the night of occurrence, he was returning from temple of Someswar Nath after Darshan, when he saw all the three appellants coming out of the Khandahar of Shankar Lal. Their clothes were stained with blood and they had Chhura and knives in their hands. It was moon lit light night and electric bulbs were also lighting. All the appellants were his relatives so having prior acquintance with them he could easily identified all of them. 67. P.W. 6 has been cross-examined at length but he has not been given even a suggestion to the effect that Sudhakar was not amongst the accused persons. 68. Under these circumstances it cannot be held that the appellant Sudhakar was not involved in the occurrence. 69. On the basis of above discussion, the involvement of all the appellants in the incident is found to be well established. 70. 68. Under these circumstances it cannot be held that the appellant Sudhakar was not involved in the occurrence. 69. On the basis of above discussion, the involvement of all the appellants in the incident is found to be well established. 70. Now the only question left to be decided is that whether the appellants, in exercise of private defence and in a fit of grave and sudden provocation, after seeing their sister in the bedroom of Dharam Dev and to protect her from being ravished, have committed this gruesome act in course of which they exceeded their right of private defence by inflicting more injuries on the body of the victim Dharam Dev than were required ? 71. The right of private defence is a well recognized right in civilized country. Sections 96 to 106 I. P. C. provide the law of private defence. Private defence of the body of a person necessitates reasonable danger which must be founded on facts. The object of right of private defence is not punitive but preventive. The right of private defence is conferred on the aggressee and not on aggressor. The right of private defence is used as a shield and not as a weapon of offence. It is defensive in nature and is based on the principle that every man has been endowed with certain amount of self reliance and will not as such flee away when he is attacked by criminals. A person is not so coward to die at the hands of criminal but will use of force and measures to check the criminals from assault on his person or to destroy his property. 72. This legal position is also well settled that the case of the prosecution has to be tested independently from the defence version and in a case which depends on direct evidence, falsity of the defence will not help the prosecution to establish its own case and even if the onus to establish his plea of private defence shifts upon accused, the standard of proof is not the same as that of the prosecution and if the accused successfully probabilises the plea taken by him, he will be entitled to the benefit of reasonable doubt. 73. The aforesaid legal position has been affirmed by the Hon'ble Apex Court in a catena of judgments. 73. The aforesaid legal position has been affirmed by the Hon'ble Apex Court in a catena of judgments. One of such cases is the case of Hanumantappa Bhimappa Dalavai and anr vs. State of Karnataka 2009 Law Suit (SC) 501 in which the Hon'ble Apex Court has held that - "accused need not prove existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that preponderance of probabilities is in favour of his plea. In order to find whether right of private defence is available or not, injuries received by accused, imminence of threat to his safety, injuries caused by accused and circumstances whether accused had time to have recourse to public authorities are all relevant factors to be considered." "To claim a right of private extending to voluntary causing of death, accused must shows that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. Burden is on accused to show that he had a right of private defence which extended to causing of death. This, right commences, as soon as a reasonable apprehension of danger to body arises from an attempt, or threat, to commit offence, although offence may not have been committed. The right lasts so long as reasonable apprehension of danger to body continues and as soon as the cause for reasonable apprehension disappears and threat has either been destroyed or has been put to route, there can be no occasion to exercise right of private defence." 74. The Apex Court in Raja Shekhran Versus State represented by Inspector of Police, Tamilnadu 2003 Criminal Law Journal page 53 has laid down that - "the burden of establishing the plea of self defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material available on record. In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, injury caused and circumstances are to be considered." 75. In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, injury caused and circumstances are to be considered." 75. In Kashiram vs. State of M.P., 2002 SCC (Cri) 68 it has been held by the Apex Court that : "burden of proving that the alleged offence falls within the exercise of right of private defence lies on the accused. But that burden has to be exercised on the basis of preponderance of probabilities. The accused has to satisfy the stand of a prudent man." 76. In Dharminder vs. State of HP (2002) 7 SCC 488 the Apex Court has observed that the aforesaid burden - "is not so onerous as that of the prosecution to prove its case." "The right of private defence need not be pleaded. Such right can be considered even from the materials on record." 77. In State of Karnataka vs. Shiva Shankar, 1978 Cr LJ (NOC) 179 (Kant) it has been held that - "this right can be shown from materials elicited from cross-examination of prosecution witnesses." 78. In State of M.P. Vs. Ramesh, AIR 2005 SC 1186 , the Supreme Court has observed that - "the accused can establish his plea of self defence by reference to circumstances transpiring from the prosecution evidence itself and need not adduce evidence himself." 79. In Kashiram's case (supra) the Apex Court has gone to the extent of holding that - "even if the plea of private defence was not specifically taken by the accused persons in their statement under Section 313 Cr.P.C. and the accused who was injured in the same incident did not enter the witness box, such plea can be raised during the course of submission by relying on the probabilities and circumstances of the case and it can be considered by the court if made out from the evidence on record." 80. In State of U.P. vs. Md. Musheer Khan, AIR 1977 SC 2226 , it has been laiddown that - "without the plea being taken in examination under Section 313 Cr.P.C., the plea can be considered in appeal." 81. In State of Assam vs. Abinash, 1982 Cr LJ 400 (Gau), it has been held that - "plea of self-defence by the accused though not specifically urged in trial, it can be argued in appeal." 82. In State of Assam vs. Abinash, 1982 Cr LJ 400 (Gau), it has been held that - "plea of self-defence by the accused though not specifically urged in trial, it can be argued in appeal." 82. In a most recent case State of Rajasthan Vs. Manoj Kumar, (2014) 5 SCC 744 , the Apex Court has re-affirmed the laid down by it in earlier decisions by holding that - "the plea of private defence, if not taken by the accused during his statement under Section 313 Cr.P.C., it is open to the court to consider such a plea if the same arises from material on record and burden to establish such a plea can be discharged by the accused on the standard of preponderance of probabilities in favour of that plea on the basis of material on record." 83. In wake of the above cited well settled legal position and after testing the factual scenario of this case on the touch stone of the aforesaid legal principles relating to right of private defence, we are of the considered view that in pre-ponderous of probabilities the case as set by the appellants appears to be more probable than that of the case of the prosecution. A small quarrel regarding some money transaction occurring two days prior to the incident cannot have such strong motivation for the accused persons to inflict as many as 22 incised wounds on the deceased causing his death although such type of attack may be a natural consequence of the feeling of grave and sudden provocation arising in the hearts of appellants after receiving the information that deceased had taken away forcibly their minor sister Suman with him and after seeing their sister with the deceased in an objectionable state, who, seeing her brothers cried for help, "Bhaiya Bachao" 84. It does not make any difference if the appellants have not adduced any evidence in support of their plea of exercising right of private defence. Their burden stands discharged in preponderance of probabilities in favour of that plea as may be inferred on the basis of material available on record of this case. Their injury reports clearly show that they have received several injuries on their palm, wrist and hand while saving themselves from the knife blows inflicted by the deceased. Their burden stands discharged in preponderance of probabilities in favour of that plea as may be inferred on the basis of material available on record of this case. Their injury reports clearly show that they have received several injuries on their palm, wrist and hand while saving themselves from the knife blows inflicted by the deceased. Thus, in preponderance of probabilities it can easily be concluded that there was imminence threat not only to their safety but the chastity of their younger sister was also to be protected immediately. Under these circumstance, the appellants were left with no other option except to inflict knife blows on the deceased. 85. The Sessions Judge appears to have been swayed away towards accepting the prosecution case to be true by the fact that fatal injuries have been caused on the prosecution side whereas the injuries suffered by accused were much less in gravity. The view taken by the Sessions Judge, we are constrained to observe, cannot be sustained and it is liable to be modified by the appellant court. 86. By the evidence available on record this fact has been found well established that the accused persons had used only kitchen knives hence it may be inferred that their intention was not to cause the death of Dharam Dev but while doing so they certainly should have the knowledge that inflicting as many as 22 knife injuries although in a heat of passion would likely to cause death of Dharam Dev. This conduct of appellants clearly shows that upto some stage the accused appellants exercised their right to protect themselves and their sister, but thereafter they exceeded the right. 87. On the basis of aforesaid discussion this appears to be a case in which instead of convicting the appellants under Section 302 read with 34 I.P.C., it would be just and proper to convict them for the offence punishable under Section 304 (1) read with 34 I.P.C. As a considerable time has expired since the occurrence and the criminal proceedings against the appellants is pending since more than 30 years, it appears just and proper to take a lenient view in the matter. It appears that the interest of justice would be served if the appellants are sentenced with 5 years imprisonment and with fine as imposed by learned lower court. 88. Accordingly, the appeal is partly allowed. It appears that the interest of justice would be served if the appellants are sentenced with 5 years imprisonment and with fine as imposed by learned lower court. 88. Accordingly, the appeal is partly allowed. The conviction and sentence of the appellants is modified to the extent that their conviction and sentence for life imprisonment as awarded by the lower court is modified to the imprisonment for five years. The fine imposed by the Sessions Court is to be remained as the same. It shall be deposited by the appellants within one month if not earlier deposited by them. In default of payment of fine, they have to suffer imprisonment of 6 months in addition to the imprisonment of 5 years. 89. The appellants are on bail. They are directed to surrender before the court concerned to serve out their sentence as modified by this Court within 30 days from the date of this judgment. 90. A copy of this judgment be sent to the learned Sessions Judge, Etah forthwith for compliance.