R. B. MEHTA, J. ( 1 ) THIS is an appeal against the conviction and sentence passed by the Additional Sessions Judge Baroda on the appellant under sec. 302 I. P. C. for the murder of one Nana Jeram and under sec. 324 I. P. C. for causing hurt to one Bai Gujali and sentenced to suffer imprisonment for life and R. I. for one year respectively. Both the sentences were ordered to run concurrently. ( 2 ) THE prosecution case in brief may be put this way :the deceased Nana Jeram was living with his daughter-in-law Bai Gujali and her young son aged about 4 years in the village of Moti Sadhali in Chhotaudepur Taluka. Bai Gujalis husband had died 3 years before the date of the incident in the case which took place on the 5th of March 1960 On the day in question i. e. 8th March 1960 while the deceased Nana Jeram and Bai Gujali were getting ready to sleep after having taken their night meals and when her father-in-law was sitting on the cot it is the prosecution case that Bai Gujali saw two persons in their courtyard. Not having recognized the intruders she questioned who they were 4 or 5 times but the intruders gave no answer. Thereupon it is alleged that Bai Gujali told her father-in-law that these intruders were not disclosing their identity. At that time the deceased and Bai Gujali were in the Parshal i. e. the front verandah of the house that on Bai Gujali telling this way to the deceased the deceased said who are coming and abused them and further said that some months back his house was looted. He further said Let them come. I will either kill them or be killed. As there was no response of any kind from these intruders the deceased it is alleged took up his bow and arrows and shot one arrow which hurt one of the two intruders in the chest. The name of the victim is Fulji Gandu. Gujali recognized Fulji after Fulji fell down. Thereupon it is alleged that the companion of Fulji i. e. Raising the accused was recognized by Gujali. It is alleged that since Fulji fell down Raising the accused-appellant attacked the deceased with a Palia which is a sharpcutting weapon and gave three blows with the Palia. Gujali recognized Fulji after Fulji fell down. Thereupon it is alleged that the companion of Fulji i. e. Raising the accused was recognized by Gujali. It is alleged that since Fulji fell down Raising the accused-appellant attacked the deceased with a Palia which is a sharpcutting weapon and gave three blows with the Palia. It is alleged that the accused also shot an arrow at the deceased. The deceased thereafter fell down. The accused while going away also shot an arrow at Bai Gujali which injured her on her arm. The accused ran away. The deceased who was hit in the Parshal crawled near upto the gate and the prosecution case is that the deceased died immediately while he was thus inside the gate. Bai Gujali who was alone in her house then shouted to call one Kalji who is a neighbour. It may be stated that the nearest house in this village was of Kalji at a distance of about 150 feet. There were no other houses in the vicinity When Kalji came Gujali told him what had happened. Kalji then called another person by name Nanla Kidia. In the morning the police came on the spot. That was as a result of a complaint by the accused at about 5-30 in the morning to the Rangpur Police Station which is about 2 miles away from this village in regard to the injury by the deceased on Fulji. The statement of Bai Gujali was recorded in regard to the assault by the accused on the deceased Nana Jeram. The complaint was thus recorded by the police at about 8 in the morning. A Panchnama of the dead-body and the scene of offence was made. During the Panchnama of the spot a turban of the accused was found in the Parshal. The accused was arrested in the morning between 8 and 9 on the 9th of March and it is alleged that his langot and its string were found with stains of blood His clothes were taken charge of. The dead-body of the deceased was sent for post mortem examination where it was found that he had three incised injuries and one punctured wound and actually in the punctured wound the blade of an arrow was still sticking in. The dead-body of the deceased was sent for post mortem examination where it was found that he had three incised injuries and one punctured wound and actually in the punctured wound the blade of an arrow was still sticking in. After completing the investigation the accused was charge-sheeted and put up before the learned Magistrate for preliminary inquiry who committed the accused to Sessions. In the Sessions Court the accused was convicted and sentenced as stated above against which the present Appeal has been preferred by him. ( 3 ) [his Lordship alter discussing the facts of the case proceeded. ] ( 4 ) IT was further contended on behalf of the defence that if the accused was the assailant of the deceased then in that case the accused wasacting in his right of self-defence. It was said that Gujali in her evidence has stated that after the first arrow was hit on Fulji the deceased tried to shoot another arrow and in all these circumstances the accused had fl right of defending both himself as well as the body of Fulji from further harm. To this the answer of the prosecution is that the deceased was himself acting in self-defence and that therefore if the deceased was acting in self-defence the accused who was an intruder in the premises of the deceased at night and a wrong-door himself had no counter right of self-defence against the deceased. ( 5 ) BEFORE discussing this question it would be convenient to refer to the evidence of Gujali on this point. The evidence of Gujali on this point is to the effect that she and her father-in-law had taken their night meals and they were preparing to go to bed that her father-in-law was sitting on the cot in the Parshal and she was also in the Parshal. The witness has not given the time but she said that they were about to retire for bed which might be somewhere between 8 and 9 P. M. or roundabout. It is further in the evidence of Gujali that when she was in the Parshal she saw the two intruders in the courtyard. She had not recognized them at that time. So she asked five times (in her first information report she mentions 3 or 4 times) as to who these intruders were. No answer was given by the intruders. It is further in the evidence of Gujali that when she was in the Parshal she saw the two intruders in the courtyard. She had not recognized them at that time. So she asked five times (in her first information report she mentions 3 or 4 times) as to who these intruders were. No answer was given by the intruders. She then told her father- in-law that these people (meaning the intruders) were not speaking any- thing. It is thereupon that her father-in-law asked the intruders who they were and further abused them. He also said that once they had looted him. The deceased further said Let me see how you come Either I will kill you or I will myself be killed and it is in Gujalis evidence that her father-in-law had also said that even while dying he will kill all these people meaning the intruders who had come. Having said these words immediately the deceased shot an arrow which hit Fulji. It is in evidence that the width of the courtyard is about 6 feet and the Parshals length is about 27 feet and in front of the Parshal is the courtyard which has a gate which is called Zampa. The evidence of Gujali is that the intruders had already entered the Zampa and were in the Angan and were coming in the Parshal. In other words that they had not actually stepped in the Parshal but they were proceeding to come to the Parshal. It is also in the evidence of Gujali that about Diwali previous to the incident in the case there was a robbery at the residence of the deceased. On this point there was no cross-examination on behalf of the defence. The facts therefore show that the time of this incident was somewhere between 8 and 9 in the night and the residence of the deceased was in a village at a lonely spot. ( 6 ) BEARING in mind the above facts one has to consider the question as to whether the accused had a right of self-defence. If the deceased himself was the aggressor then in that case normally the accused would have a right of self-defence. ( 6 ) BEARING in mind the above facts one has to consider the question as to whether the accused had a right of self-defence. If the deceased himself was the aggressor then in that case normally the accused would have a right of self-defence. To determine the question therefore whether the accused had a right of self-defence it will be necessary to see whether the deceased himself was an aggressor or was acting in self-defence and if he was acting in his right of self-defence whether he was within the limits of the law in the exercise of the same. Now in this context section 103 of the Indian Penal Code provides that a person is entitled to defend himself or any person in defence of property upto the causing of death of his adversary against an offence or an attempt to commit an offence amongst others of house trespass which reasonably causes the apprehension of death or grievous hurt. In other words if the offence which gives the right of self-defence is an offence of house trespass or an attempt to house trespass which may reasonably cause the apprehension of death or grievous hurt then in that case the right of self-defence extends to the causing of death or any other harm to the adversary. Now in this case there was no actual offence of trespass. But the evidence of Gujali discloses that the accused and Fulji came at night between about 8 and 9 to the house of the deceased which was in a lonely spot. They entered the Jhampli i. e. the Jhampa gate. The compound or the Angan as it was called was hardly 6 feet wide. The two intruders were proceeding towards the Parshal which is a constructed portion of the house itself when at that stage they were repeatedly asked by Gujali as to who the intruders were. The intruders however gave no answer to this query. The deceased Nana on being told about this by Gujali then challenged them saying that they had looted the house last Diwali and that on this occasion he challenges them to come inside saying either he will kill or be killed himself and also saying that while dying he will kill his assailants. Yet the intruders gave no answer and they were moving towards the Parshal. Yet the intruders gave no answer and they were moving towards the Parshal. It was at this stage that the deceased hit an arrow while he was on the Parshal. It struck Fulji who was one of the intruders. This circumstance shows that the deceased was justified in reasonably entertaining an apprehension that death or grievous hurt to himself or to the inmates of his house would result from the circumstances in which an attempt of house trespassing this particular case was made by the intruders. His own words that even while dying he will finish the intruders show that the apprehension in his mind was real and the circumstance of the intrusion would make such apprehension reasonable enough. The right of self-defence is not dependent on the actual criminality of the person resisted it depends solely on the wrongful or apparently wrongful character of the act attempted. If the apprehension is real and reasonable it makes no difference that it is mistaken. We may refer to sec. 79 of the Indian Penal Code which says nothing is an offence which is done by any person who is justified by law or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in doing it. In other words it is lawful to shoot a man who is found opening your plate chest at night though he happens to be your butler whom you mistake for a burglar. You commit no offence in these circumstances if you shoot your butler bonafide thinking him to be a burglar. But whether the butler has a right of self-defence or not will depend on the question whether the butler was on an innocent mission or a criminal one which aspect we shall consider a little later in this case. For the moment were considering whether the deceased was the aggressor or was acting in lawful defence. (See the Criminal law of India by J. D. Mayne Third Edition p. 459 ). Now in this connection we may further refer to the observations in the same book at page 455 with which we are in agreement which are as follows ( 7 ) THE greatest indulgence is always shown to the acts of a person who suddenly discovers a house-breaker in his house at night. Now in this connection we may further refer to the observations in the same book at page 455 with which we are in agreement which are as follows ( 7 ) THE greatest indulgence is always shown to the acts of a person who suddenly discovers a house-breaker in his house at night. The heinous character of the offence the uncertainty whether the man is armed and likely to attempt violence the want of time for reflection would in the great majority of cases be an ample justification to any inmate of the house who at once made fatal use of a deadly weapon. But if the size or youth of the offender his efforts to escape observation when approached or his entreaties for mercy showed that no real danger was to be apprehended from him I imagine that no measures of extreme violence could be justified. ( 8 ) IN the instant case the time at which this offence took place was the time of the night. The house was situated in a lonely spot. The next house was at a distance of about 150 feet. Barring that house the human habitation in small hamlets was about half a mile away. The two intruders had entered the Zampli and were in the Angan and coming towards the Parshal which was hardly 6 feet away from the Zampli gate itself. In other words there was an Angan or a gap between the Parshal and the Zampa gate about 6 feet wide. The intruders having entered the Zampa were proceeding in the direction of the Parshal. Before they could step into the Parshal they were repeatedly asked by Gujali as to who they were. They gave no answer. Thereupon the deceased himself while sitting in the Parshal challenged them as to who they were saying that they had looted the house last Diwali but this time he would not allow the miscreants to go away. Inspite of this warning the intruders gave no answer. Not only they gave no answer but the evidence shows that there was no attempt on their part to run away from the spot or to ask for mercy or to disclose their identity. Inspite of this warning the intruders gave no answer. Not only they gave no answer but the evidence shows that there was no attempt on their part to run away from the spot or to ask for mercy or to disclose their identity. In these circumstances there will be no difficulty in our saying that this was a case where the deceased was justified in entertaining an apprehension of death or grievous hurt at the bands of the intruders for there was already an entry into the compound and an attempt to get into the house by the intruders. There was also the uncertainty whether the intruders were armed and likely to attempt violence. There was also the want of time for reflection before a probable attack from the intruders. In these circumstances if the deceased acted as he did in attacking-the intruders we can say that he was justified in the exercise of his right of self-defence and looking to all the circumstances in the case there can also be little doubt that he had not exceeded the limits allowed to him under the law namely that a person cannot use more violence than is absolutely necessary at the moment for his self-defence andthat he can use violence in self-defence only after the apprehension starts and only so long as the apprehension lasts. The moment the apprehension of death or grievous hurt ceases the right of sell-defence immediately comes to an end. Bearing all these circumstances in mind we can say that in the present case the deceased was fully within his right of self-defence and he had not exceeded the same. Before leaving this aspect of the question we may mention-the argument that was advanced on behalf of the defence that Gujali in her evidence has stated that the intruders were at a distance of about 20 feet from the Parshal. It was contended that if the distance was so much there was really no danger to the deceased or his family. The actual length of the Parshal is about 27 feet and there is a 6 feet wide gap between the end of the Parshal and the Zampa gate. The deceased-was sitting on a cot in the Parshal and it is very probable that the distance from the cot where the deceased was sitting to the place where the intruders were standing might be about 20 feet. The deceased-was sitting on a cot in the Parshal and it is very probable that the distance from the cot where the deceased was sitting to the place where the intruders were standing might be about 20 feet. That does not mean that the danger was the less real from the intruders for they were almost at the Parshal and but for the defence taken by the deceased on the facts as they stood there is little scope of any doubt that the intruders would have actually stepped into the Parshal itself and when perhaps it would have been too late for the deceased to defend himself and his family. We do not think therefore that there is much substance inthis argument advanced on behalf of the defence. The next question which arises is whether if the deceased acted in the exercise of his right of private defence and if what he did was within the limits of law allowed to him in such a case whether the accused had any right of self-defence. As observed earlier if the deceased was. acting in self-defence then of course the accused would not have any right of self-defence. To put it differently if the deceased himself was the aggressor and was the first to attack then the accused normally would have a right of self-defence. But since as stated above the deceased was acting in self-defence the question next to determine is whether in these circumstances the accused would have any right of self-defence. In our view there cannot be any right of defence against an act which is itself an act of lawful self-defence. Reference may also be made in this connection to the observations to this effect in Maynes Criminal Law of India Third Edition at p. g (5 ). The learned author after making the observations to the above effect observes as follows : So if a robber or housebreaker by night is attacked in self-defence and kills the person who attacks him he cannot plead that he would otherwise have lost his own life for this is one of the perils which the law attaches to his criminal act. In other words we have to see whether in this particular case the accused himself was there for the purpose of committing an offence or whether he was an innocent person and through a misconception of fact in the circumstances narrated above the deceased was under the apprehension of danger to his life. In this connection reference also may be made to the provisions of section 98 of the Indian Penal Code which are to the effect that when an act which would otherwise be a certain offence is not that offence by reason of any misconception on the part of that person every person has the same right of private defence against that act which he would have if the act were that offence. In this case therefore it is to be found whether as stated above the accused was on the spot innocently in exercise of any legal right to be there or as a licensee or whether he was there in the circumstances in which it can be said that he was there for the purpose of a criminal offence. As stated above if he was there on the spot for the purpose of a criminal offence then as we have discussed earlier he can have no right of self defence against the deceased provided the deceased in exercising his right of self-defence against the intruders did not exceed the limits allowed to him under the law. We have already stated earlier that in this case there was no excess of the right of self-defence exercised by the deceased. The question therefore arises whether the accused was innocently there. On this part of the question before proceeding further it may be stated that the onus of proof that the accused has acted in self-defence is on the accused himself. In this case it may be stated that the accused has not pleaded self-defence. All that he has stated was that he was not present at the time of the alleged offence at the spot. The case of the accused was that he came on the spot after he received information about the injury on his brother Fulji. He has not raised a plea of self-defence at all. All that he has stated was that he was not present at the time of the alleged offence at the spot. The case of the accused was that he came on the spot after he received information about the injury on his brother Fulji. He has not raised a plea of self-defence at all. Nonetheless it is open to the accused to plead self-defence in case there is evidence on record brought out either in the examination of witnesses or their cross-examination or in any other shape or form. The evidence in this case shows as stated earlier that the accused and his brother Fulji (who happened to be the sons of the brother of the wife of the deceased) entered the Angan that is the compound of the deceased between the hours of about 8 and 9 and inspite of the repeated challenges of the daughter-in-law of the deceased that is Gujali and also thereafter of the deceased the intruders gave no answer and they did not disclose their identity nor did they make any attempt to go away. It is in Gujalis evidence that after the deceased struck Fulji with an arrow the accused rushed towards the deceased with a Palia which was in his Land. It appears therefore that at this hour of time at a lonely spot where the house of the deceased was situated the two intruders came and on the evidence it is shown that at least one of them was armed with a dangerous weapon like a Palia and one of them with a bow and arrow with which the deceased was attacked. It is therefore not possible to say that the accused and his companion came there innocently. On the contrary the evidence disclose that they were on the spot for an ulterior object and very probably the apprehension which was in the mind of the deceased was correct and that the motive could probably only be the purpose of looting. The evidence discloses these facts which would justify us to draw this inference as against them. There is nothing to destroy this obvious inference from the facts to show in the slightest degree that the accused and his companion came there for an innocent purpose. The evidence discloses these facts which would justify us to draw this inference as against them. There is nothing to destroy this obvious inference from the facts to show in the slightest degree that the accused and his companion came there for an innocent purpose. In other words it is not possible to say that there was any misconception of fact on the part of the deceased in the apprehension which he entertained of the probable danger which was likely imminent from the two intruders. In other words it cannot be said that what the deceased bonafide thought were dangerous house trespassers were in fact innocent friends legally entitled to be there and who in such circumstances had a right of self defence because of a misconception of fact on behalf of the deceased in attacking them. In these circumstances it cannot be said that the accused had any right of self-defence for the accused himself was there as the evidence on record shows for a criminal purpose for it is one of the perils which the law attaches to a criminal act of an accused person in these circumstances namely exercise of right of private defence by the adversary who is the target of his attack. In these circumstances in our opinion there was no right of self-defence left in the accused. We agree with the conclusion arrived at by the learned Additional Sessions Judge in regard to the guilt of the accused on the charge of murder. Appeal dismissed .