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2019 DIGILAW 352 (ALL)

Daya Shankar v. State of U. P.

2019-02-08

B.K.NARAYANA, GHANDIKOTA SRI DEVI

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JUDGMENT : B.K. Narayana, J. 1. Heard Sri Imran Ullah, learned Amicus Curiae on behalf of the appellant and Smt. Manju Thakur, learned A.G.A.-I for the State. 2. This criminal appeal has been preferred by Daya Shanker Tiwari (A1), Satya Narain Tiwari (A2) and Bhagwan Das Tiwari (A3), against the impugned judgement and order dated 11.8.1988 passed by Additional Sessions Judge/Special Judge, Azamgarh, in Sessions Trial No. 425 of 1984, convicting and sentencing the appellants to imprisonment for life under Section 302/34 IPC and 5 years R.I. under Section 307/34 IPC and 3 months' R.I. under Section 323/34 IPC. All the sentences were directed to run concurrently. 3. The record of this appeal shows that Daya Shanker Tiwari (A1) and Bhagwan Das Tiwari (A3) died during the pendency of this appeal before this Court and thus, the appeal qua appellants Daya Shanker Tiwari (A1) and Bhagwan Das Tiwari (A3) was dismissed as abated vide order dated 4.5.2018, passed by another co-ordinate Bench of this Court. 4. The facts of this case are briefly stated as hereinunder: On 3.4.1981, at about 9.15 am, P.W. 2 informant Sri Lalta Tiwari lodged a written report Ext. Ka.2 at Police Station Deogaon, District Azamgarh, on the basis whereof Case Crime No. 101 of 1981 under Section 147, 148, 149, 302 IPC was registered against seven accused on the allegations that a civil suit between him and Daya Shanker Tiwari (A1) of his village, in respect of a piece of land, was pending before the Civil Court. Satya Narain Tiwari, Ram Chandar, Bhagwan Das Tiwari, Kripa Shanker Tiwari, Ram Shanker Tiwari, Rajendra Tiwari, belong to his group. Daya Shanker had filed a complaint against his family members. In that complaint case Satya Narain, Rama Shanker and Rajendra Tiwari were witnesses against him. The accused were giving threats to him to withdraw the civil suit. A day before the occurrence his sons Ram Bharose and Ram Bhushan had talked with Daya Shanker and others for compromise. The compromise deed was to be written on 3.4.1981. At about 8 am, he was present at his tubewell. He had his Khalihan near his tubewell. His sons Ram Bharose, Banke Tiwari and Chandra Shekhar Tiwari were going towards the tubewell from their house. Daya Shanker and others were also present at their tubewell. The compromise deed was to be written on 3.4.1981. At about 8 am, he was present at his tubewell. He had his Khalihan near his tubewell. His sons Ram Bharose, Banke Tiwari and Chandra Shekhar Tiwari were going towards the tubewell from their house. Daya Shanker and others were also present at their tubewell. When his sons Ram Bharose and Bankey reached the chak road lying in front of their tubewell, Daya Shanker called his son. His son Bankey went to his tubewell. Daya Shanker and Satya Narain were armed with country made pistols. Meanwhile Satya Narain, Daya Shanker, Bhagwan Das, Kripa Shanker, Ram Shanker and Rajendra exhorted that it was high time to kill. Daya Shanker fired from his country made pistol at Ram Bharose and Satya Narain fired at Bankey. As a result, his son sustained injury on the chest. His son died on the spot. Shambhunath, Shee Pujan Tiwari and Bahal Yadava saw the occurrence. The accused persons ran towards the west. The accused had collected at their tubewell and in furtherance of their common object, they had murdered his son Ram Bharose. 5. The investigation of the case was started by S.I. Sri Girjesh Dutt Mishra, P.W. 7, who reached the place of occurrence on 3.4.1989 and conducted the inquest on the body of deceased Ram Bharose and prepared inquest report Ext. Ka.9 and other papers. Thereafter, he got the dead body of Ram Bhaorse sealed and dispatched to Sadar Hospital, Azamgarh, for post-mortem examination. 6. The post-mortem on the body of deceased Ram Bharose was conducted by P.W. 5 Dr. K.S. Misra, on 4.4.1981 at 4.00 pm, who also prepared and proved deceased's postmortem report as Ext. Ka.4. The post-mortem report of the deceased indicates following ante-mortem injuries: 1. Fire-arm wound of entry four in number, in an area of 5 cm x 3 cm on the left side chest, 2 cm below the medial fold of the left axillary, size 1/2 cm x 1/2 cm x cavity deep. The margins are contused. Blackening, tatooing and scorching are present. 2. Abrasion 2 cm x 0.5 cm on the left upper arm, 6 cms below the left shoulder 3. Abrasion 3 cm x 1½ cm, 3 cms below injury No. 2 4. Abrasion 3 cm x 2 cm on right thigh above front 4 cm above the right knee joint. 7. Blackening, tatooing and scorching are present. 2. Abrasion 2 cm x 0.5 cm on the left upper arm, 6 cms below the left shoulder 3. Abrasion 3 cm x 1½ cm, 3 cms below injury No. 2 4. Abrasion 3 cm x 2 cm on right thigh above front 4 cm above the right knee joint. 7. P.W. 5 stated that three bullets were recovered from the body of the deceased. He further stated that injury No. 1 could be caused by a country made pistol. Injury No. 1 was sufficient to cause death. 8. P.W. 7 inspected the place of occurrence and prepared its site plan Ext. Ka. 10. He also collected blood stained 'Bandi' from the body of deceased Ram Bharose and after sealing the same, prepared recovery memo Ex. Ka. 11. He also collected blood stained and plain earth from the crime scene and after sealing it, prepared its recovery memo Ex. Ka.12. 9. P.W. 3- Injured Bankey Tiwari was medically examined by P.W. 1 Dr. R.P. Sharma, on 3.4.1981 at 1.30 pm at Lalganj, P.H.C. who deposed before the trial Court that following injuries were found by him on his person: 1. Lacerated wound 1 cm x 1/2 cm x skin deep on left side of skull, 12 cms. Above left eye brow. 2. Lacerated wound 1½ cms. x 14 cm. x skin deep on left side of skull, 1 cm. Lateral to injury No. 1 3. Lacerated wound 1½ cms. x 1/4 cm. x skin deep on left side of skull 7 cms. Above left ear. 4. Contusion 3 cms. x 2 cms. on left side of skull 6 cms above left ear. 5. Contusion 2½ cms. x 2 cms. on right forearm, 1½ cms. above right eyebrow. 6. Abrasion 3 cm x 1 cm on back of right eye brow joint. 7. Abrasion 1 cm x 1½ cms on the back of left hand, 8. Abrasion 1 cm x 1½ cms on back of left thigh, 3 cms above left knee joint. 9. Abrasion 1 cm x 1½ cms on front of right leg, 17 cms below right knee joint. 10. In cross-examination he admitted that on the same date at about 12.10 pm he had examined injuries of Smt. Yashoda and found the following injuries on her person: 1. 9. Abrasion 1 cm x 1½ cms on front of right leg, 17 cms below right knee joint. 10. In cross-examination he admitted that on the same date at about 12.10 pm he had examined injuries of Smt. Yashoda and found the following injuries on her person: 1. Lacerated wound 6½ cms x 1 cm x bone deep on right side of skull, 12 cms above right eye brow. 2. Lacerated wound 5 cms x 1 cm x bone deep on right side of skull, 10 cms above right ear. 3. Lacerated wounds 2 cms x ½ cm x bone deep on left side back of skull, 2½ cms above occipital. 4. Lacerated wound 1 cm x ½ cm on left side of face. 5. Abrasion ½ cm x ½ cm on frontal nose, ½ cms below root of nose. 6. Abrasion 2 cm x 1 cm on left side of back, 2½ cms below left shoulder. 7. Contusion 5 cm x 3 cm on left side of back 3 cm below top of left shoulder. 8. Contusion 4 cm x 3 cm on the back of 7th servical vertibra. 11. He further admitted in his cross-examination that on the same day at about 2.30 pm he had examined the injuries of Smt. Raj Kumari and found the following injuries on her person: 1. Lacerated wound 6 cms x 4½ cm x bone deep on middle of skull, 15 cms above nose. 2. Lacerated wound 7 cms x ½ cm x bone deep on left side of skull, 7 cms above the left ear. 3. Contusion 12 cm x 2 cm on light side of back 2 cm below right scapula. 4. Contusion 12 cm x 1½ cm on left side of back on middle of left scapula. 5. Contusion 12 cm x 2 cm right side of back, 5 cm below angle of right scapula. 6. Contusion 9 cm x 7 cm on back of right forearm, 2 cm above right wrist joint. 7. Contusion 6 cm x 8 cm on back of right palm, ½ cm below right wrist joint. 8. Abrasion 3 cm x 1/2 cm on back on left hand, 1 cm below left wrist joint. 9. Lacerated wound 1/2 cm x 1/4 cm x skin deep on top of left ring finger of left hand. 10. 7. Contusion 6 cm x 8 cm on back of right palm, ½ cm below right wrist joint. 8. Abrasion 3 cm x 1/2 cm on back on left hand, 1 cm below left wrist joint. 9. Lacerated wound 1/2 cm x 1/4 cm x skin deep on top of left ring finger of left hand. 10. Contusion 5 cm x 4 cm on back of right foot, 4 cm below right ankle joint. 12. He proved the injury reports of Ram Bharose (deceased) and Bankey Tiwari Ext. Ka. 1 and the copies of the injury reports of Smt. Yashoda and Smt. Raj Kumari as Ext. Kha 1 and Kha 2. After investigation of the case, the police submitted charge-sheet for committing offences punishable under Sections 147, 148, 149 and 302 IPC against all the aforesaid seven accused persons Ext. Ka.8. 13. Since the offences mentioned in the charge-sheet were exclusively triable by the Court of Sessions, the C.J.M. Azamgarh, after summoning the accused, committed the case to the Court of Session, where Case Crime No. 101 of 1981 was registered as S.T. No. 425 of 1984. The learned Sessions Judge transferred the case to the Court of the then VI Additional Sessions Judge, Sri R.N. Mishra, who by an order dated 16.9.1985, framed charges punishable under Sections 147, 302, 307 and 148 IPC against all the accused persons, who abjured charges framed against them and claimed trial. 14. The prosecution in order to prove its case examined Dr. R.P. Sharma, M.O. as P.W. 1, Sri Lalta Tiwari as P.W. 2, Sri Bankey Tiwari as P.W. 3, Sri Bahal as P.W. 4, Dr. K.S. Misra Dy. C.M.O. as P.W. 5, Sri Abdul Bahaw Khan, S.I./I.O. as P.W. 6 and Sri Girjesh Dutt Mishra, Retired S.I./I.O. as P.W. 7. 15. After the closing of the recording of prosecution evidence, the accused appellants were examined under Section 313 Cr.P.C. All the accused appellants denied the prosecution story as concocted and alleged false implication. Appellant Daya Shanker (deceased A1) further stated that Ram Bharose alongwith his friends, came to his tubewell at about 8 am. They assaulted his mother and Aji (grandmother-Smt. Yashoda). Ram Bharose attempted to shoot him and Satya Narain with his country made pistol, when they tried to snatch the country made pistol from him, in the process, a shot was fired accidentally causing gunshot injury to Ram Bharose. They assaulted his mother and Aji (grandmother-Smt. Yashoda). Ram Bharose attempted to shoot him and Satya Narain with his country made pistol, when they tried to snatch the country made pistol from him, in the process, a shot was fired accidentally causing gunshot injury to Ram Bharose. Although the accused appellants did not examine any witness in defence, but they adduced documentary evidence comprising of injury report of Smt. Yashoda Ext. Kha.1 and Smt. Raj Kumari Ex. Kha.2, charge-sheet filed in Criminal Appeal No. 101(A) under Section 147, 148, 302, 303 IPC (State v. Ram Bharose Tiwari and others) Ex. Kha.3, copy of the F.I.R. lodged by Smt. Rajkumari Ex. Kha.4. The aforesaid documents were filed on behalf of accused appellants to establish that with regard to the same incident, a cross case was registered on the earlier complaint of Smt. Rajkumari on 3.4.1981 at about 12 noon against Ram Bhushan Tiwari and others. In the F.I.R., Smt. Raj Kumari had stated that her family members were contesting the civil case in respect of a piece of land against Sankatha and. Lalta Tiwari. One day before the occurrence, heated arguments had taken place between her father-in-law- Bhagwan Das, who was working as Moharir in Lalganj Tahsil and Ram Bhushan. Ram Bhushan had given threat to see him. On account of aforesaid enmity, Ram Bhushan Tiwari and the other accused armed with spears, country made pistol and lathi, came to her tubewell at about 8 am and started beating her son Daya Shanker and Satya Narain, who were fixing thrasher on the tubewell. On the cries of help raised by Daya Shanker and Satya Narain, she and her mother-in-law Yashoda Devi reached there and tried to intervene, but the accused began to assault even them with lathis. Satya Narain and Daya Shanker fled away. She and her mother-in-law sustained lathi injuries. Subedar Ram Lakhan, Indradeo, Rajendra and several other villagers had seen the occurrence. Her mother-in-law Smt. Yashoda Devi had received serious injuries in the occurrence. She was forwarded for treatment to Lalganj by the Sub-Inspector of Police through a constable. Site plan of the place of occurrence prepared by the investigating officer of the cross case was also brought on record as Ex. Her mother-in-law Smt. Yashoda Devi had received serious injuries in the occurrence. She was forwarded for treatment to Lalganj by the Sub-Inspector of Police through a constable. Site plan of the place of occurrence prepared by the investigating officer of the cross case was also brought on record as Ex. Kha.5 in which the tubewell of Smt. Raj Kumari-complainant was shown by letters A, B, C, D. The tubewell of Ram Lakhan was shown in the site plan by letters E, F, G, H. Smt. Yashoda Devi had succumbed to the injuries received by her in the occurrence. Her post-mortem report was brought on record as Ext. Kha.6. 16. The learned Additional Sessions Judge/Special Judge, Azamgarh, by the impugned judgement and order, convicted the accused appellants under Section 302/34, 307/34, 323/34 IPC and awarded aforesaid sentences to them, while co-accused Ram Shanker Tiwari, Kripa Shankar, Rajendra and Ram Chandra Tiwari were given benefit of doubt and acquitted of all the charges. 17. Hence, this appeal. 18. Learned counsel for the appellants submitted that the prosecution having failed to disclose and furnish any explanation for the injuries suffered by two persons on the side of the accused appellants namely, Smt. Raj Kumari and Smt. Yashoda Devi, mother and grandmother of Day a Shanker (deceased A1) and Satya Narain (A2), of whom Smt. Yashoda Devi later succumbed to her injuries, it is apparent that the true genesis of the occurrence has been suppressed and the prosecution has failed to approach with clean hands. He next submitted that it is proved from the evidence on record that the complainant's side was the aggressor as admittedly the incident had taken place at the tubewell of Daya Shanker (deceased A1) and Satya Narain (A2) and to give, a colour to the occurrence, a written report of the incident was prepared after due deliberations and consultations falsely implicating the appellants by depicting them as aggressors. There is neither any mention in the F.I.R., or in the statements of the witnesses of fact produced during the trial by the prosecution about the injuries suffered by Smt. Yashoda Devi and Smt. Raj Kumari in the occurrence, nor any explanation for their injuries. On the other hand, it is proved from the documentary evidence brought on record, that the complainant's side was the aggressor. 19. On the other hand, it is proved from the documentary evidence brought on record, that the complainant's side was the aggressor. 19. Per contra, learned A.G.A. submitted that neither the recorded conviction of he appellants, nor the sentences awarded to them, warrant any interference by this Court. This appeal lacks merit and is liable to be dismissed. 20. We have heard learned counsel for the parties and perused the entire lower Court record. 21. The record of this appeal shows that the incident had taken place on 3.4.1981 at about 8 am at the tubewell of Daya Shanker Tiwari (deceased A1), resident of village Retwa Chandrabhanpur, PS. Deogaon, District Azambarh. In the incident, it is alleged that one person Ram Bharose died while another Bankey Tiwari received injuries. The role of firing on the deceased was assigned to Daya Shanker (deceased A1) and that of causing injuries to Banke by kicks, fists and the butt of the country made pistol was scribed to Daya Shanker (deceased A1) and Satya Narain (A2) etc. Role assigned to other co-accused who were acquitted, was that of exhortation. The written report of the incident was scribed by RW. 2 Lalta Tiwari on 3.4.1981 and lodged at PS. Deogaon Lalganj District Azamgarh on the same day at 9.50 hours. The post-mortem on the body of the deceased Ram Bharose was conducted by P.W. 5 on 4.4.1981 who had also prepared and proved the postmortem report of the deceased Ext. Ka.4 during the trial. The injuries of P.W. 3 Bankey were examined on 3.4.1981 at Lalganj by P.W. 1 R.P. Sharma, who had also on the same date examined injuries of Smt. Yashoda at 12.10 pm and those of Smt. Raj Kumari at 2.30 pm. The injured Smt. Rajkumari was the mother of Daya Shanker (deceased A1) and Satya Narain Tiwari (A2), while Smt. Yashoda Devi was the mother-in-law of Smt. Raj Kumari. P.W. 1 in his evidence tendered before the trial Court, apart from proving the injury report of injured Bankey Ext. Ka.1, deposed that the injuries noted by him on the person of Bankey were possibly caused on 3.4.1981 at about 8 am. 22. P.W. 1 in his evidence tendered before the trial Court, apart from proving the injury report of injured Bankey Ext. Ka.1, deposed that the injuries noted by him on the person of Bankey were possibly caused on 3.4.1981 at about 8 am. 22. As regards the injuries found on the person of Smt. Yashoda Devi and Smt. Rajkumari, he deposed that it was possible that the injuries noted by him on the persons of Smt. Yashoda Devi and Smt. Raj Kumari were inflicted on them on 3.4.1981 at about 8 am. Record further shows that Smt. Yashoda Devi had succumbed to her injuries and post-mortem on her body was conducted and post-mortem report has been brought on as Ext. Kha.6. Record further shows that in respect of the same incident, which is subject-matter of this appeal, cross F.I.R. was lodged by Smt. Raj Kumari at RS. Deoganj District Azamgarh, against Ram Bhushan Tiwari and others, alleging therein that Ram Bhushan and others had come to tubewell of Daya Shanker (deceased A1) at about 8 am on 3.4.1981 and after beating Daya Shanker (deceased A1) and Satya Narain (A2), who had fled, inflicted lathi injuries on her and her mother-in-law Smt. Yashoda Devi, which was registered as Crime No. 101A under Section 147, 148, 302, 323 IPC (State v. Ram Bhushan Tiwari and others) in which after completion of investigation, Ram Bhushan Tiwari and others were charge-sheeted and put on trial. The F.I.R. of the cross case was registered as Crime No. 101 A of 1981 and the charge-sheet filed therein, were proved by RW. 6 Inspector Abdul Bahaw Khan, Vigilance as Ext. Kha.4 and Kha.3. P.W. 6, Inspector Abdul Bahaw Khan, in his evidence stated that her cross case which was registered as Crime No. 101A of 1981 was investigated by him in which he filed charge-sheet against Ram Bhushan Tiwari, Bankey, Ram Bharose, Ram Saran, Ram Suresh, Dulli, Shyami and Paras. Banke Tiwari is P.W. 3 in this case. 23. Thus, we find that date, time and place of occurrence is admitted to the parties. It is also admitted to the parties that they are residents of same village and both of them have their own tubewells which are situated adjacent to each other. Banke Tiwari is P.W. 3 in this case. 23. Thus, we find that date, time and place of occurrence is admitted to the parties. It is also admitted to the parties that they are residents of same village and both of them have their own tubewells which are situated adjacent to each other. From the record it is also proved that while two persons had received injuries from both the sides, Ram Bharose and Bankey from the side of the prosecution and Smt. Yashoda and Smt. Raj Kumari (mother of A1 and A2) had received from the side of the accused. While Ram Bharose died from the side of the prosecution, Smt. Yashoda succumbed to her injuries from the side of accused. It is also admitted that both sides have filed F.I. Rs. against each other, but the interesting part of this case is that the prosecution is absolutely silent about the injuries received by Smt. Yashoda Devi and Smt. Raj Kumari in the occurrence. Since one person from the side of the accused appellants had died and another had received simple injuries, it cannot be assumed that the injuries of Smt. Yashoda Devi and Smt. Raj Kumari were either self-inflicted, fabricated or superficial. We have scanned the evidence of the three witnesses of fact- P.W. 2 Lalta Tiwari, P.W. 3 Bankey Tiwari and P. W. 4 Bahal, who were examined by the prosecution during the trial, but none of them have spoken anything about the injuries suffered by two persons from the prosecution side. On the other hand, P.W. 2 in his cross-examination, although admitted that Raj Kumari was the mother of Daya Shanker Tiwari (deceased A1) and Satya Narain (A2), and she had lodged the F.I.R. against Ram Bhushan Tiwari, Bankey, Ram Bharose, Ram Saran, Ram Suresh, Dulli, Shyami and Paras for having committed the murder of her mother-in-law, Smt. Yashoda Devi on the same date and the aforesaid persons were facing trial for the murder of Smt. Yashoda Devi, but he denied having seen any injury on the person of Smt. Raj Kumari. On the other hand, he deposed that Smt. Yashoda Devi was 90 years old and the accused appellants had committed her murder to save themselves. He was neither aware who had committed the murder of Smt. Yashoda Devi, nor had seen her injuries. On the other hand, he deposed that Smt. Yashoda Devi was 90 years old and the accused appellants had committed her murder to save themselves. He was neither aware who had committed the murder of Smt. Yashoda Devi, nor had seen her injuries. Similarly, P.W. 3 Bankey Tiwari (injured), who is facing trial for the murder of Smt. Yashoda Devi and is named accused in the F.I.R. of the cross case, in his cross-examination, expressed his inability to tell how and where Yashoda had died because she was not present at the place of incident. He also expressed his inability to tell how and where Raj kumari and Yashoda had received injuries because both of them were not present at the crime scene, although he admitted that Raj Kumari was mother of Daya Shanker Tiwari (deceased A1) and she had on the same date lodged F.I.R. under Section 302 IPC against him and several other persons. 24. Thus, from the perusal of the statements of P.W. 2, P.W. 3 and P.W. 4, it transpires that they have consistently denied that in the incident either Smt. Yashoda or Smt. Raj Kumari had received any injury or even that they were present at the place of the incident. On the other hand, evidence on record to which we have already adverted hereinabove, indicates that in the same incident in which Ram Bharose had received injuries and died and Bankey had received injuries, Smt. Yashoda and Smt. Raj Kumari had also sustained injuries and Smt. Yashoda Devi had succumbed to her injuries. 25. Thus, it is apparent that the prosecution has not approached with clean hands and the true genesis of the occurrence has been suppressed. The incident having taken place at the tubewell of Day a Shanker Tiwari (A1), it can safely be assumed that the deceased Ram Bharose, RW. 3 Bankey Tiwari and others belonging to the complainant's side had gone to the tubewell of Daya Shanker Tiwari (deceased A1) and merely because one person had died from the side of the accused appellants and other had received injury, it cannot be held with any certainty that the accused appellants were the aggressors. 26. The explanation given by RW. 3 Bankey Tiwari and others belonging to the complainant's side had gone to the tubewell of Daya Shanker Tiwari (deceased A1) and merely because one person had died from the side of the accused appellants and other had received injury, it cannot be held with any certainty that the accused appellants were the aggressors. 26. The explanation given by RW. 1 for the death of Smt. Yashoda in his cross-examination that the accused appellants had themselves killed the appellant's mother, Smt. Yashoda Devi to save themselves, sounds not only childish, but also preposterous and wholly unacceptable. 27. The possibility that the occurrence may have taken place in the manner as alleged by the accused appellants in their statements under Section 313 Cr.P.C. or in some other manner, cannot be completely ruled out. The defence taken cannot be said to be irrelevant, illogical or fanciful in the entirety of the facts and the nature of other evidence available as discussed hereinbefore. The improper consideration thereof has clearly caused prejudice to the appellant. Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt and he has only to raise doubts on a preponderance of probabilities as observed in Hate Singh Bhagat Singh v. State of Madhya Bharat, 1953 AIR (SC) 468, as follows: "26. We have examined the evidence at length in this case, not because it is our desire to depart from our usual practice of declining to re-assess, the evidence in an appeal here, but because there has been in this case a departure from the rule that when an accused person puts forward a reasonable defence which is likely to be true.....then the burden on the other side becomes all the heavier because a reasonable and probable story likely to be true when pitted against a weak and vacillating case is bound to raise reasonable doubts of which the accused must get the benefit....." 28. A similar view is expressed in M. Abbas v. State of Kerala, (2001) 10 SCC 103 , as follows: "10...On the other hand, the explanation given by the appellant both during the cross-examination of prosecution witnesses and in his own statement recorded under Section 313 Cr.P.C. is quite plausible. A similar view is expressed in M. Abbas v. State of Kerala, (2001) 10 SCC 103 , as follows: "10...On the other hand, the explanation given by the appellant both during the cross-examination of prosecution witnesses and in his own statement recorded under Section 313 Cr.P.C. is quite plausible. Where an accused sets up a defence or offers an explanation, it is well-settled that he is not required to prove his defence beyond a reaonsable doubt but only by preponderance of probabilities...." 29. Under such circumstances, we have no hesitation in holding that the prosecution has failed to prove that the occurrence had taken place in the manner as spelt out in the F.I.R., which was lodged by RW. 2 informant Sri Lalta Tiwari, and this appeal deserves to be allowed. 30. Accordingly, this appeal is allowed. The surviving appellant Satya Narain (A2) who has been assigned the role of firing at Bankey, although the shot fired by him missed the target and of causing injuries to him with kicks, fists and butt of the gun is acquitted of all the charges framed against him. The appellant Satya Narain (A2) is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged. However, he shall comply with the mandatory provision of Section 437-A Cr.P.C. The impugned judgement and order stands modified accordingly. There shall however, be no order as to costs.