JUDGMENT H.P. Asthana, J. - Jai Narain of village Jhingura, P.S. Hathras district Aligarh, was charged u/s 304 I.P.C. for causing the death of one Mukanda of the same village on the 13th June, 1951, at about 2 p.m. by striking him with a dhankutta (Ex. 1). Reoti was charged u/s 323 I.P.C. for causing simple hurt to one Megh Singh during the same occurrence and also u/s 352 I.P.C. Jai Narain was found guilty u/s 304 I.P.C. by the learned Sessions Judge of Aligarh and was convicted and sentenced to 4 years' rigorous imprisonment, Reoti was found guilty u/s 352 I.P.C. and was sentenced to a fine of Rs. 25/-, in default 2 weeks' rigorous imprisonment. Jai Narain has filed the present appeal against his conviction and sentence. 2. The Prosecution case as disclosed in the first information report which was made by Rumali, nephew of Mukanda deceased, on the same day (13th June, 1951) at 7 p.m. at police station Hathras, which is at a distance 5| miles from village Jhingura, may be briefly stated as follows: There was a feast at the house of Sanwalia Cha-mar of the village on the 13th June, 1951. The complainant Rumali, his father Tunda, his uncle Mukanda, and Susa son of Mukanda, were invited to that feast. These persons did not go to the house of Sanwalia for the feast till 2 p.m. Sanwalia then sent some-one to call them. They then went there and reached there at about 2 p.m. Reoti, brother of Sanwalia, thereupon asked them as to why they had come so late when they had been invited much earlier. There was some altercation between Reoti and Susa on this point. While the altercation was going on Rumali, his brother Megh Singh and Mohana also reached there. Reoti started abusing these people. It is said that Jai Narain accused then brought a dhankutta and Dwarka and Reoti brought lathis; and that Jai Narain hit Mukanda with the dhankutta on the head and Dwarka and Reoti dealt lathi blows and Mukanda fell down on the ground and died. It is further alleged that Buddha, Gulzaria, Mewa Chamar and Gajadhar Thakur were present there at that time and had witnessed the occurrence. It is also alleged in the report that Mukanda died as a result of the injuries received by him and that Megh Singh had also received some injuries. It is further alleged that Buddha, Gulzaria, Mewa Chamar and Gajadhar Thakur were present there at that time and had witnessed the occurrence. It is also alleged in the report that Mukanda died as a result of the injuries received by him and that Megh Singh had also received some injuries. 3. After the report Sri Sukhbir Singh, Station Officer Hathras, proceeded to the scene of occurrence. Kishan Singh, Second Officer, also accompanied him. Kishan Singh prepared the inquest report on the dead body of Mukanda and thereafter it was sent for post mortem examination. Megh Singh who was injured, was also sent for medical examination. The accused Jai Narain and Reoti who were named in the first information report arrested on the 14th June, 1951. No blood was found on the chabutra on which Mukanda was said to have been struck by Jai Narain with the dhankutta. It was, however, found, near dead body below the chabutra. After the necessary investigation the accused were sent up for trial. 4. The accused Jai Narain in his statement before the committing magistrate stated that Mukanda had hit him with lathi on the head and it began to bleed and that Mukanda was going to hit him again when he picked up the dhankutta and hit him with it in self-defence. He made a similar statement in the court of the sessions. 5. The postmortem examination of Mukanda was performed on the 14th June, 1951 at 5.30 p.m. by Dr. H.M. Kar, Medical Officer Incharge Sadar Hospital Aligarh. It appears from the postmortem report that the deceased had a contused wound with swelling all round 1 1/4" x 1/2" bone on the right side of top of head about 4" above the right ear; that the skull was fractured and that the death was caused by shock and haemorrhage due to the injuries of head causing extensive fracture of the vault and base of skull. It further appears from the report that the death had taken place about 28 hours before the postmortem examination, which corresponds with the time given by the prosecution of the occurrence. 6. Megh Singh was examined on the 14th June, 1951 at 8 a.m. by Dr. S.L. Gupta of the Sadar Hospital Hathras. His injury report (Ex. It further appears from the report that the death had taken place about 28 hours before the postmortem examination, which corresponds with the time given by the prosecution of the occurrence. 6. Megh Singh was examined on the 14th June, 1951 at 8 a.m. by Dr. S.L. Gupta of the Sadar Hospital Hathras. His injury report (Ex. P3) shows that he had one contused wound 1 1/4" x 1/4" x 1/4" over the right side of the head 3 1/4" above right eyebrow; that this injury was simple and had been caused by some blunt weapon and was about 16 to 20 hours old. 7. The accused Reoti and Jai Narain were also examined by Dr. Gupta on the 16th June, 1951 in the morning between 9 and 10 a.m. Reoti had a contused wound 3/4" 1/4" scalp deep over right side of the head 2 1/2" above the pinna of right ear. This injury was about four days old and had been caused by some blunt weapon. Jai Narain had a contused wound 1 1/4 x 1/4" scalp deep over the left side of head 3 1/4" above and behind the pinna of left ear. This injury was simple and had been caused by some blunt weapon and was about four days old. 8. In view of the above medical evidence there is no doubt that a fight had taken place between Mukanda and Megha on one side and the accused Jai Narain and Reoti on the other, and it was in that fight that these injuries were caused and Mukanda died of the injuries which he had received. 9. The prosecution examined Rumali, Megh Singh, Susa, Tunda, Mohan Lal, Gulzari and Mewa Ram in support of the case. Out of these witnesses, Rumali, Megh Singh, Susa, Tunda and Mohan Lal are related among themselves. Rumali is the son of Tunda, Megh Singh is the son of Mukanda deceased, Susa is the brother of Megh Singh; and Mohan Lal and Rumali are brothers and sons of Tunda. The only two independent witnesses are Gulzari and Mewa Ram. The accused did not produce any evidence in defence. Rumali is the son of Tunda, Megh Singh is the son of Mukanda deceased, Susa is the brother of Megh Singh; and Mohan Lal and Rumali are brothers and sons of Tunda. The only two independent witnesses are Gulzari and Mewa Ram. The accused did not produce any evidence in defence. The learned Sessions Judge after a consideration of the entire prosecution evidence came to the conclusion that there was an exchange of abuses between Reoti and Tunda; that Reoti pushed Tunda over some thorn bushes; that thereupon Mu-kanda deceased brought out a stick of babul and struck with it on the head of Jai Narain who began to bleed; that thereupon Jai Narain picked up a dhankutta from a distance of 8 or 10 paces and struck Mukanda with it and that as a result of the injury received by Mukanda he died immediately. He was further of opinion that the marpit was not premeditated and there was no previous arrangement for any lathi or other stick; that the babul bushes were lying there on the chabutra and the dhankutta was also lying closely. On the question whether in the circumstance the accused was entitled to the right of private defence he was of the opinion that there was no evidence that Mukanda was trying to pursue the accused when he went to pick up the dhankutta or that he wanted to strike him again, and when the accused Jai Narain had already gone to a distance of about ten paces to pick up the dhankutta he could easily have escaped and thereby saved himself. In view of the above observation he found Jai Narain guilty u/s 304 I.P.C. and convicted and sentenced him as above. 10. It was contended before me on behalf of the Appellant that the entire prosecution evidence in this case was contradictory and was also inconsistent with the first information report. It was also argued that from the prosecution evidence itself it was clear that Jai Narain struck only one blow on Mukanda deceased in self defence and his conviction u/s 304 I.P.C. was bad in law. It was also argued that from the prosecution evidence itself it was clear that Jai Narain struck only one blow on Mukanda deceased in self defence and his conviction u/s 304 I.P.C. was bad in law. It was also contended that in the circumstances in which Jai Narain was placed at the time of the occurrence it was not possible for him to weigh his stroke in golden scales and to strike the blow in such a manner that only simple injury was received by Mukanda. 11. In view of the above contention it is necessary to examine the evidence of the different prosecution witnesses in this case. Rumali stated that there was some exchange of abuses between Reoti and Tunda when Tunda and others reached late at the house of Sanwalia for the feast; that Reoti then pushed Tunda over the babul thorns that were lying there and that thereupon Susa, son of Mukanda said to him why he was beating the old man. He further stated that thereupon Reoti remarked that they were continuing the argument and asked Jai Narain and Dwarka to bring lathis; that Mukanda then sat on the chabutra and Jai Narain brought the dhankutta Ex. 1 from the house of Jangalia which is at a distance of about 20 paces, and hit Mukanda with it from behind. He next stated that before running away Reoti accused hit Megh Singh with lathi and that Megh Singh was hit because he was trying to intervene. According to the statement of this witness Reoti and Jai Narain were not hit by anyone nor they received any injury. His evidence does not explain the injuries which were found on Reoti and Jai Narain. 12. Megh Singh is the son of Mukanda deceased. He stated that after Tunda was pushed by Reoti and fell down on the babul thorns Susa said to Reoti as to why he was beating the old man and thereupon Reoti gave him a lathi blow. This witness also stated that Mukanda deceased was sitting quietly on the chabutra when he was struck by Jai Narain from behind with the dhankutta Ex. 1. This witness also stated that Mukanda deceased was sitting quietly on the chabutra when he was struck by Jai Narain from behind with the dhankutta Ex. 1. He also stated that Reoti and Jai Narain accused were not assaulted by any one nor they received any injury; that Mukanda did not assault any one, and that the accused Reoti gave him a lathi blow at the same time when Jai Narain hit Mukanda with the dhankutta. 13. Susa is the son of Mukanda deceased. His statement is more or less the same as that of the two previous witnesses. He also stated that Mukanda was struck with the dhankutta from behind while he was sitting on the chabutra. According to the statement of this witness also Mukanda did not assault any one or took any part in the occurrence. He was questioned by the court as to why Mukanda was assaulted by Jai Narain and he could not give any reason for it. 14. Gulzari is the next witness. He has given entirely different version of the occurrence. According to his statement there was exchange of abuses between Tunda and Reoti; that Reoti and Tunda pushed each other and gave blows and Tunda fell over the thorny bushes. He further stated that on hearing the hue and cry Mukanda came out from his house, pulled out a branch from among the babul bushes and hit Jai Narain on the head; that Jai Narain then hit Mukanda on the head with the dhankutta which was lying there and was picked up by Jai Narain when he was struck. This witness stated that he did not see any one making assault on Megh Singh. It further appears from the evidence of this witness that the blow with the dhankutta was given by Jai Narain from the front and not from behind as has been stated by the previous witnesses. It also appears from his evidence that he does not know how Megh Singh witness was injured. He further stated that Jai Narain was covered with blood when he was struck by Mukanda. 15. Mewa Ram is the other independent witness. His evidence is more or less the same as that of Gulzari. It also appears from his evidence that he does not know how Megh Singh witness was injured. He further stated that Jai Narain was covered with blood when he was struck by Mukanda. 15. Mewa Ram is the other independent witness. His evidence is more or less the same as that of Gulzari. He too stated that Mukanda struck Jai Narain with a stick on the head ; that Jai Narain then began to bleed and he picked up the dhankutta which was lying there and struck Mukanda with it. According to the statement of this witness Dwarka caused injury to Reoti by hitting him with lathi and Megh Singh was assaulted by Dwarka. 16. Tunda, who is the father of the complainant and who is said to have been pushed by Reoti after the exchange of abuses, stated that Susa, son; of Mukanda, said to Reoti as to why he was assaulting him and thereupon Reoti hit Megh Singh with lathi. It is not clear from his statement as to why Reoti should have struck Megh Singh when the challenge was made to him by Susa. This witness too stated that after Megh Singh Mukanda arrived there, pulled out a jharkata and struck Jai Narain and Reoti with it; that thereafter he sat on the chabutra and in the meantime Jai Narain brought the dhankutta kept in the corner of the house of Jangalia and hit Mukanda on the head from behind. The evidence of this witness also shows that it was Mukanda who had first struck Jai Narain with a stick. 17. Mohan Lal, son of Tunda made a somewhat similar statement as has been made by his father. He too stated that Mukanda was struck from behind. 18. It will appear from the above evidence that besides the witnesses related to the complainant the two independent witnesses did not support the prosecution case. According to their evidence the deceased Mukanda was struck from front by Jai Narain after Jai Narain had been struck by him with a stick. It also appears from the evidence of this witness that the dhankutta (Ex. 1) which was said to have been used by Jai Narain for hitting Mukanda was lying close to the place of occurrence. According to their evidence the deceased Mukanda was struck from front by Jai Narain after Jai Narain had been struck by him with a stick. It also appears from the evidence of this witness that the dhankutta (Ex. 1) which was said to have been used by Jai Narain for hitting Mukanda was lying close to the place of occurrence. The Medical evidence in this case also supports the evidence of Gulzari and Mewa Ram that the injury of Mukanda was inflicted from the front and not from behind. There does not appears any satisfactory reason why Jai Narain would have struck Mukanda deceased if he had not taken any part in the occurrence and was quietly sitting on the chabutra on Sanwalia. The first information report does not at all mention that Mukanda was sitting on the chabutra and that he was hit by Jai Narain from behind. It also does not explain the injuries which were received by the accused Jai Narain and Reoti. It is inconsistent with the evidence of the prosecution witnesses. 19. Considering the entire evidence on the record I am inclined to believe the evidence of Gulzari and Mewa Ram that the deceased Mukanda struck Jai Narain and Reoti with a stick and it was only after that that Jai Narain picked up the dhankutta which was lying close by and struck him once with it on the head which, however, proved fatal. In my opinion Jai Narain had a right of self defence in the circumstances of the case and I am not at all satisfied that he exceeded his right. I am not inclined to agree with the observation of the lower court that Jai Narain should have run away in order to avoid any further attack. The law does not con-template that if a person is assaulted he should run away and should not make any attempt to defend himself. I am, therefore, of opinion that the conviction of the Appellant Jai Narain u/s 304 I.P.C. cannot be maintained. 20. This appeal is, therefore, allowed and the conviction and sentence of Jai Narain u/s 304 I.P.C. is set aside. As he is on bail he need not surrender. His bail bonds are discharged.