JUDGMENT : DEEPAK ROSHAN, J. 1. The instant application is directed against the judgment dated 21st May, 2013 passed by the learned Additional Sessions Judge-VII, Dhanbad, in Criminal Appeal No. 176 of 2012, whereby the appeal preferred by the petitioner has been partly allowed. 2. The learned trial court vide its judgment dated 5th May, 2012 passed by learned Assistant Sessions Judge-III, Dhanbad in S.T. No. 09 of 2006 convicted the petitioner along with the co-accused for the offence under section 323 of the I.P.C. and further convicted the petitioner herein for the offence punishable under Section 27 of the Arms Act. The learned appellate court while sustaining the conviction of the petitioner under Section 27 (1) of the Arms Act, acquitted the petitioner along with co-convicts for the offence under section 323 of the I.P.C. holding that all the accused persons who were convicted under section 323 of the I.P.C. for causing injury to Vijay Rawani, but Vijay Rawani had not attributed any allegation of assault against any accused persons for causing him injury as such they are not guilty for the offence under section 323 of the I.P.C. 3. However, the learned appellate court sustained the conviction under section 27 of the Arms Act holding that though the license of the petitioner has been exhibited but grant of license of any arm is granted only for support/protection/display and the said arm can be used only for self-defence and not otherwise. 4. The prosecution case as per fardbeyan of one Samresh Kumar recorded by Sub-Inspector N.N. Sinha of Bhoura O.P. on 23.07.2005 reveals that on the same day in the noon at about 12.00 he was fetching water from a tube well near the house of one Mukesh Singh, a compounder. In the meantime he saw that his uncle Raja Rawani was coming from the side of Durga Temple when he reached in front of the house of Sita Ram Pandey then Sant Pandey, Arbind Pandey S/o Sita Ram Pandey began to assault the uncle of informant by means of iron road. As a result he sustained injury. When the informant wanted to pacify the matter he was also assaulted by means of fists by the accused Sant Pandey and he was threatened of dire consequences. Out of fear the informant fled away and narrated the entire episode to the mohalla people. As a result he sustained injury. When the informant wanted to pacify the matter he was also assaulted by means of fists by the accused Sant Pandey and he was threatened of dire consequences. Out of fear the informant fled away and narrated the entire episode to the mohalla people. Subsequently he came there along with eight persons namely Krishna Rajak, Tulsi Rawani, Ashok Kumar Rawani, Ashok Kumar, Bijay Rawani, Khalique Ansari, Sakti Rawani and Kali Charan Rawani respectively. They saw that accused Sita Ram Pandey and Shiv Pandey, Arbind Pandey and Sant Pandey were assaulting Raja Rawani. Accused Shiv Pandey had pointed the gun on Raja Rawani and was threatening him of dire consequences. The informant and others wanted to intervene into the matter upon which Siv Pandey opened fire by his gun. As a result of which Krishna Rajak, Tulsi Rawani, Ashok Kumar Rawani, Ashok Kumar, Vijay Rawani sustained gunshot injuries. Others were assaulted by means of lathi and danda. It has further been alleged that some other unknown persons were also engaged in the assaulting the informant party. All the injured persons were sent to BCCL hospital, Bhoura for their treatment. The reason behind the occurrence has been alleged that on 22.07.2005 there were some dispute in between Sita Ram Pandey and Raja Rewani for obtaining contract relating to construction of a drain from Durga Temple to Bhoura No. 12 fan house. On the basis of aforesaid fardbeyan the instant case was registered as Jorapokhar (Bhoura) P.S. Case No. 143/2005 dated 23.07.2005 under sections 147, 148, 149, 341, 323, 324, 307 IPC and 27 Arms Act against the accused persons. Police took up the investigation. After completion of investigation charge sheet was submitted against all the accused persons under aforesaid sections. Cognizance was taken and offence U/S 307 IPC. 5. Mr. Rajiva Sharma learned senior advocate and Mrs. Darshana Poddar learned Amicus appears for the petitioner. 6. Mr. Sharma contended that the learned trial court has committed a gross error in convicting the petitioner for the charges under the Arms Act for the reason that the gun was used for self-defence. He further contended that the deposition of Investigating Officer clearly transpires that the house of the petitioner was surrounded by many persons and the petitioner along with his other family members were forced to go upstairs. He further contended that the deposition of Investigating Officer clearly transpires that the house of the petitioner was surrounded by many persons and the petitioner along with his other family members were forced to go upstairs. Further there is report of stone pelting over the premises which forced the petitioner to use his arm. 7. Learned Amicus submits that the injury report mentioning the names of injured stand not proved as none of the seven alleged injured have been examined, it has not been proved that who caused the injury. She further contended that the petitioner has wrongly convicted under section 27 (1) of the Arms Act because there was no contravention of section 5 of the Arms Act as the gun was a licensed to one whereas section 5 of the Act prohibits use of firearms unless the person holds in this behalf a license in accordance with the provision of this Act. Relying upon this submission she contended that no case is made out against the petitioner under the Arms Act. She further submits that in view of the judgment passed the Hon’ble Apex Court in the case of Deomuni Sharma vs. State of Jharkhand, (2009) 16 SCC 80 , the petitioner could not have been convicted under the Arms Act because the fire, if any was done for self-defence. She further submits that in view of the judgment passed by the Hon’ble Apex Court in the case of Sekar @ Raja Sekharan vs. State Represented by Inspector of Police, Tamil Nadu, (2002) 8 SCC 354 , the initial burden is certainly on the accused but once the initial burden is discharged the burden shift on the prosecution to prove its case. She further submits that section 96 of the I.P.C. clearly stipulates that nothing is an offence which is done in the exercise of the right of private defence. She concluded her argument by submitting that there is no evidence on record that the petitioner has not used his gun in the exercise of his right of private defence. 8. Per contra, the learned Addl. P.P. for the State submits that there is no error whatsoever in the impugned judgments and the learned appellate court has rightly sustained the conviction of the petitioner for the charges under the Arms Act. As such the instant revision application deserves to be dismissed. 9. 8. Per contra, the learned Addl. P.P. for the State submits that there is no error whatsoever in the impugned judgments and the learned appellate court has rightly sustained the conviction of the petitioner for the charges under the Arms Act. As such the instant revision application deserves to be dismissed. 9. Heard learned senior counsel for the petitioner, learned Amicus and the learned Addl. P.P. for the State. 10. Admittedly, none of the so-called injured persons were examined by the prosecution. PW-2 who was allegedly injured by pellets due to firing was not found to be injured by such firing and in his deposition he did not state that he was injured due to firing by the petitioner. Even his injury report shows that the same was simple in nature and caused by hard and blunt substance. The record further transpires that none of the injured persons have deposed before the court that they have been injured due to the firing of the petitioner and that there was any gun shot of injuries. The fact further transpires that the seized gun and other arms and ammunition were not even sent for FSL/ballistic examination and no ballistic report has been called for which would have confirmed that the injuries were made by the gun of the petitioner. 11. The deposition of the Investigating Officer clearly transpires that the premise of the petitioner was surrounded by several persons and there was sign of stone pelting on the walls. The investigating officer has categorically admitted in his cross-examination that the items of the shops were thrown here and there. It is a clear admission of the Investigating Officer that a group of persons have attacked the shop/premises of the petitioner. In this background, it can be inferred that the petitioner might have used the gun for the purpose of self-defense. The said inference is further corroborated by the fact that even the learned appellate court in Para 21 of its judgment has categorically stated that the Investigating Officer had not examined any injured witnesses except Vijay Rawani who himself has not attributed any allegation of assault against any accused person for causing him injury. The said inference is further corroborated by the fact that even the learned appellate court in Para 21 of its judgment has categorically stated that the Investigating Officer had not examined any injured witnesses except Vijay Rawani who himself has not attributed any allegation of assault against any accused person for causing him injury. The learned appellate court had further observed that the injured persons have not come forward to give their evidence and any absence of examination of the injured persons and adverse inference will be drawn against prosecution and benefit of doubt would go to the accused. However, even observing and giving benefit of doubt to the accused persons the learned appellate court has convicted the petitioner only for the reason that the petitioner was on top of the roof, therefore, he could not have anticipated threat and use of gun by him cannot be said to be used for self-defence. The deposition of the Investigating Officer to the effect that the police protection was provided upon the house of the accused person clearly transpires that there was a threat of life and property of the petitioner as such it can safely be inferred that gun was used for private defence. The judgment relied upon by the learned Amicus reported in Deomuni Sharma case (supra) squarely apply in this case Para 26 of the said judgment is quoted herein-below: “26. For inviting conviction under Section 27 of the Arms Act, it has to be proved that the firearm has been used in contravention of Section 5 or Section 7 of the Arms Act. Since it was a licensed gun, there was no question of Section 7 coming in. Insofar as Section 5 is concerned, we do not think that an act on the part of the accused in firing in the air to scare the aggressors would come within the mischief of Section 5(1) of the Arms Act. Since it was a licensed gun, there was no question of Section 7 coming in. Insofar as Section 5 is concerned, we do not think that an act on the part of the accused in firing in the air to scare the aggressors would come within the mischief of Section 5(1) of the Arms Act. Therefore, the appellant is liable to be acquitted even of the offence under Section 27 of the Arms Act.” In the absence of injury coupled with the deposition of I.O. and the facts that the premises of the petitioner was surrounded by several persons and there was a sign of stone pelting on the walls of the premises clearly goes to show that the petitioner used the gun in the air to scare aggressor and in view of the aforesaid judgment the same would not come within the mischief of section 5 (1) of the Arms Act. 12. Section 96 of the I.P.C. provides that nothing is an offence which is done in the exercise of the right of private defence. As such the application of Section 96 is to be applied in the facts and circumstances of the each case. The facts of the case as discussed herein above clearly stipulates that the petitioner was forced to use the gun in the air as there was no injury report of firing. As a matter of fact, it is not the accused that is to prove the existence of the right of the private defence rather it is on the prosecution to prove that the act has been committed by the accused person not for private defence. In this regard the judgment passed by the Hon’ble Apex Court in the case of Sekar @ Raja Sekharan (supra) wherein the Hon’ble Apex Court has laid down the law in paragraphs 6 and 7 as herein-under: “6. Section 96 IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The section does not define the expression “right of private defence.” It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. In a given case, the court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short “the Evidence Act”) the burden of proof is on the accused, who takes the plea of self-defence and, in the absence of proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling any further reasonable apprehension, from the attacker. 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 the material on record. [See Munshi Ram vs. Delhi Administration, State of Gujarat vs. Bai Fatima, State of U.P. vs. Mohd. Musheer Khan and Mohinder Pal Jolly vs. State of Punjab]. [See Munshi Ram vs. Delhi Administration, State of Gujarat vs. Bai Fatima, State of U.P. vs. Mohd. Musheer Khan and Mohinder Pal Jolly vs. State of Punjab]. Sections 100 and 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under Section 97, that right extends under Section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault. The oft-quoted observation of the Supreme Court in Salim Zia vs. State of U.P. runs as follows: (SCC p. 654, Para 9) “It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of prosecution witnesses or by adducing defence evidence.” 7. The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.” It appears that the learned appellate court has convicted the petitioner which in itself is contradictory to his own inference. The learned appellate court has rightly drew adverse inference under section 114 illustration (g) of the Evidence Act due to the non-examination of the witnesses allegedly having sustained firearm injuries. Drawing of such inference implies that the prosecution has not been able to prove the injury report. The injured persons did not come forward for examination. After taking such adverse inference, question of giving finding that the petitioner misused his licensed gun in excess of right of private defense is rendered contrary to the finding of adverse inference which by implication under the law would mean that no evidence has been brought to prove as to who fired causing firearm injuries. As aforesaid, the learned appellate court himself acquitted the other co-convicts for the offence under Section 323 holding that Vijay Rawani has not attributed any allegation of assault against the accused persons. 13. As aforesaid, the learned appellate court himself acquitted the other co-convicts for the offence under Section 323 holding that Vijay Rawani has not attributed any allegation of assault against the accused persons. 13. It is true that re-appreciation of evidence is not permissible under the revision jurisdiction but at the same time if there is error in procedure or there is perversity in the order this court must intervene to ensure that justice should prevail. From the above discussion specially the deposition of Investigating Officer, the finding of the learned appellate Court with respect to adverse inference against the prosecution and benefit of doubt in favor of the petitioner and thereafter convicting the petitioner for the charge under section 27 (1) of the Arms Act is not sustainable in the eyes of law. 14. In view of the aforesaid facts and circumstance of the case and the judgments referred to hereinabove, the judgment passed by the learned trial court dated 5th May, 2012 passed in S.T. No. 09 of 2006 and the judgment dated 21st May, 2013 passed by the learned Additional Sessions Judge-VII, Dhanbad, in Criminal Appeal No. 176 of 2012 deserves to be set aside. 15. Ordered accordingly. 16. The petitioner shall be discharged from the liability of his bail bonds. 17. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills. She shall be paid Rs. 5500/-for each effecting date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017. 18. Let the lower court record be sent to the court concerned forthwith. 19. Let this order be sent to the learned trial court and the District Legal Services Authority, Jamtara through FAX. Revision allowed.