JUDGMENT : Misra, J. - Respondent has been acquitted of the charge u/s 302, Indian Penal Code. The prosecution case, as disclosed in the F.I.R. (Ext. 1) dated 29.6-1961, is as follows: At about 6 p.m. 28-6-1961, Saibo Dalai (the accused) and Igni Dalai (the accused) came running from their house towards the village Danda abusing each other. The deceased held a split bamboo and the accused had a wooden pole. The deceased was running away in the front being pursued by the accused. The accused threatened to kill him. On hearing this, the deceased turned round and gave a blow on the head of the accused with the split bamboo. Thereafter the accused exclaiming that he would kill the deceased gave a lathi blow on his head. The deceased then fell down and thereafter the accused gave 3 to 4 more strokes on the head of the deceased. Raghu Gauda (P.W. 1) came from his Pindha to the place of occurrence and made a hulla that Saibo was being killed. The deceased was given water as he was alive then. P.W. 1 Raghu Gauda, P.W. 3 Raghunath Ghadai and P.W. 5 Hari Majhi with others came to the police station with the accused and the stiok (M.O.I.). First Information Report was written by P.W.3 and signed by p.ws. 1 and 5 with some others who have not been examined. It was lodged at 1 a.m. on 29-6-1961, the police station being six miles from the village of occurrence. The story mentioned in the F.I.R. is substantially the prosecution case before the court. The prosecution suggested motive the fact that about 5 to 6 years ago, there was a proposal for the marriage of the accused with Rekhi Dalaiani (P.W. 4). But as the accused underwent imprisonment twice, P.W. 4 refused to marry him. She was given in marriage to the deceased, who was the younger brother of the accused. After release from jail, the accused bore grudge against the deceased over this matter. There was frequent quarrel on account of which the deceased and P.W. 4 went away to the father's house of P.W. 4 for sometime. They hild come back to their own village only 3 to 4 months before the occurrence. 2. After release from jail, the accused bore grudge against the deceased over this matter. There was frequent quarrel on account of which the deceased and P.W. 4 went away to the father's house of P.W. 4 for sometime. They hild come back to their own village only 3 to 4 months before the occurrence. 2. In his statement u/s 342, Code of Criminal Procedure the accused denied any proposal for his marriage with P.W. 4 and also the mutual assault between him and the deceased on the date of occurrence. He gave a positive story that at the time of occurrence while he was returning home after answering the call of nature, he found the deceased being assaulted by Natabar Ghadai (P.W. 6), Gobinda Ghadai and Hari Ghadai in front of the house of P.W. 1. When the accused challenged them, they caught hold of him and Gobinda Ghadai gave 10 to 12 blows on his head with a lathi. A suggestion was made during cross-examination that the accused was being chased by the deceased and that the deceased gave 5 lathi-blows on the head of the accused. 3. On analysis of the evidence, the learned Sessions Judge actuated the accused holding that: (i) the prosecution appears to be guilty of suppression of facts and that the court was not in a position to know in what manner the occurrence took place; and (ii) there being a reasonable doubt as to whether or not the accused had such a right (right of private defence), I am of opinion that the benefit of this doubt must go to the accused. 4. The doctor (P.W. 11) found the following injuries on post-mortem examination of the deceased: External. 1. One lacerated bleeding injury over the right side of the top of the skull, 5" in length. 2. One lacerated wound with fracture of skull bones on the left parietal region (comminuted depressed fracture) with blood clot in the left ear. 3. One swelling haematoma on the right parietal region above the ear. Internal. 1. Fracture of the left side of the skull affecting parietal, frontal and temporal bones of the left side. 2. One sub-dural haemotama size 4" x 2 "on the right side of the skull. The membranes are congested. 3. Brain substance of the left cerebral hemisphere injured due to depressed fracture of the skull mentioned above. Internal. 1. Fracture of the left side of the skull affecting parietal, frontal and temporal bones of the left side. 2. One sub-dural haemotama size 4" x 2 "on the right side of the skull. The membranes are congested. 3. Brain substance of the left cerebral hemisphere injured due to depressed fracture of the skull mentioned above. All the injuries were ante-mortem and in his opinion death was due to shock and hemorrhage resulting from the injuries on the skull and the bram substance. He stated that M.O.I could have caused the injuries and that three different blows might have been given which resulted in causing three injuries on the head. It is not disputed that death was homicidal. 5. P.Ws. 1, 3 and 5 are the eye-witnesses. All of them signed the F.I.R. and took the accused with the stick (M.O.I) to the police station. All of them fully supported the-prosecution version as unfurled in Ext. 1. P.W. 1 states that the incident took place in front of his house and the accused admits the same. P.W. 1 snatched away the lathi from the accused immediately after the occurrence. Nothing has been suggested in cross examination challenging his veracity or interestedness. From the suggestion "it is not a fact that the accused was holding a bamboo lathi and not this M.O.I and that he dealt the blow on the head of the deceased with the bamboo lathi" it is clear that the assault by the accused on the head of the deceased is admitted, though the user of M.O.I is disputed. P.W. 3 stated that Raghu Gauda (P.W. 1) caught hold of the M.O.I which the accused was holding. He then snatched away M.O.I from P.W. 1. The learned Judge committed an error of record in thinking that there was a discrepancy in the statements of P.W. 1 and P.W. 3-both having stated that they snathched away the stick from the accused. Nothing was suggested to P.W. 3 challenging his reliability or interestedness. P.W. 1 stated "Hari Ghadai the paternal uncle of Raghu Ghadai filed a case for theft of goats against the accused and, in that case, he was sentenced to imprisonment for six months". From this the learned Judge held that P.W. 3 was inmically disposed towards the accused. This question was not put to P.W.3 who had no opportunity to give his own. explanation. From this the learned Judge held that P.W. 3 was inmically disposed towards the accused. This question was not put to P.W.3 who had no opportunity to give his own. explanation. That apart, there is no material on record to establish the relationship between P.W. 3 and his paternal uncle Hari Ghadai. One does not know if P.W. 3 and his paternal uncle Hari Ghddai were themselves in inmical terms. Moreover, the complainant of Hari was true and on that basis the accused was convicted. There is no reason why P.W. 3, who did not complain, should have bad relationship with the accused so as to make a false statement against the latter. P.W. 3 stated that they produced broken pieces of split bamboo at the police station. This is of course untrue by itself, it is not sufficient to hold that P.W. 3 is a liar. Suggestion was made to him that the accused was being chased by the deceased and the latter gave 5 lathi blows on the head of the former. He stated that excepting one blow given by the deceased, he had not seen any other below. P.W. 5 fully supports the prosecution case and nothing has been suggested against him. The evidence of these three eye-witnesses is unimpeachable and is fully corroborated by the earliest statement made in the F.I.R. soon after the occurrence and further by the fact that the accused with the stick M.O.I was produced by them at the police station. The plea of the accused that some of them assaulted him was never suggested to them in their cross examinations and is a false one taken at a belated stage in the statement u/s 342, Code of Criminal Procedure after abandoning the story pursued during cross- examination. The learned Judge on very trivial and Superficial reasons discarded their evidence. He committed upon p.ws. 3 and 5 as not having admitted before the police and the Committal Court about the accused giving three other blows while the deceased was getting up. One of them did not state this fact before the police and the other before the Committing Court. The comment of the learned Judge that both of them did not state this fact before the police and the Committing Court is an error of record. One of them did not state this fact before the police and the other before the Committing Court. The comment of the learned Judge that both of them did not state this fact before the police and the Committing Court is an error of record. That apart, this comment has absolutely no force as in the F.I.R. itself the fact of accused giving 3 to 4 other blows has been mentioned by the three eyewitnesses. The number of injuries on the deccased is consistent with the prosecution story. 6. The accused was first examined by Dr. S.K. Dasgupta (P.W. 2) who gave First-Aid to him on police requisition. He stated that there were five injuries on the head of the accused and a rough weapon like split bamboo may cause all the five injuries by a single blow. If the split bamboo is broken while striking at the head, it may cause several injuries, even though a single blow is given. The evidence of this doctor fully supports the prosecution case. Another doctor P.W. 7 (Dr. R.N. Ghosh) examined the accused on police requisition on 1-7-1961. He found the following injuries: 1. One lacerated injury 1/2 x 1/8" x 1/8"over the head 3?" above the occipital protruberance. 2. One lacerated injury 1" x 1/2 x 1/8" over the head 5?'' above the right ear. 3. One lacerated injury 1" x 1/2x 1/8" over the head 5?" above the medial end of the right eye-brow. 4. One lacerated injury 1/2" x 1/8" x 1/16" over the head 3" above the centre of the right eye-brow. 5. One lacerated injury 1" x 1/2" x 1/16" over the top of the junction of the head and left ear. According to him, the injuries might have been caused by a split bamboo; but he states that it is not possible that all the injuries could be caused by a single stroke and that all the 5 injuries might possibly have been caused by five different blows. The evidence of P.W. 7 does not appear to be consistent with the prosecution version that only one blow was given by the deceased. Apart from the fact that the doctora (p.ws. The evidence of P.W. 7 does not appear to be consistent with the prosecution version that only one blow was given by the deceased. Apart from the fact that the doctora (p.ws. and 7) gave contradictory opinions, P.W. 2's version being fully conistent with the prosecution case, the versions of the eye-witnesses that one single blow was given by the deceased cannot be discarded as evidence is not available as to what happened inside the house where both the brothers (the deceased and the accused) began their quarrel. It is not unlikely that the deceased might have given other blows inside the house before running away. On that ground it cannot be said that the eye-witnesses are liars. The prosecution case cannot be discarded on this ground. 7. The learned Judge made a comment that the prosecution did not disclose the story regarding the immediate motive for the murder. The motive is manifest from the fact that there was a quarrel. Positive evidence is forthcoming that the deceased was running away being pursued by the accused, both abusing each other. Though the exact nature of the motive is not discernible, there was definitely a motive which began out of the quarrel. That apart, as was observed in Gurcharan Singh and Another Vs. State of Punjab, where positive evidence against the accused is clear, cogent and reliable the question of motive is of no importance. 8. The learned Judge completely overlooked the evidence of P.W. 4. She states that she had gone out to the river to bring water. On return, she came to know that her husband was killed by the accused. While she was coming near the deceased after keeping the jar of water in her house, the accused told her: I have killed your husband. I will keep you with me. Why are you crying. This was said in the Danda of P.W. 1 and she found the accused being caught hold of by others and the stick M.O.I in the hand of P.W. 1. Her statement that the accused was caught hold of by others and P.W. 1 had M.O.I in his hand fully corroborates the evidence of p.ws 1, 3 and 5. Her statement that the accused consoled her saying that he had killed her husband and that he would keep her is an extra-judicial confession of the factum of murder. Her statement that the accused was caught hold of by others and P.W. 1 had M.O.I in his hand fully corroborates the evidence of p.ws 1, 3 and 5. Her statement that the accused consoled her saying that he had killed her husband and that he would keep her is an extra-judicial confession of the factum of murder. Nothing has been suggested against P.W. 4 as to why she would falsely implicate her husband's brother in the murder. She appears to be a thoroughly reliable witness and the learned Judge committed a serious error in not dealing with her evidence though question No. 6 was put to the accused directly on this point. 9. On analysis of the entire evidence on record, we are fully satisfied that the prosecution version is true and the real story is that the deceased was running away with a split bamboo pursued by the accused with M.O.I in hand. When the accused shouted that he would kill the deceased, the latter turned round and gave a stroke on the head of the accused with the split bamboo whereafter the accused gave a stroke on the head of the deceased with M.O.I, as a result of which the deceased fell down, and while he was trying to get up, the accused further gave 2 or 3 blows on the head which resulted in the death of the deceased. The view of the learned Judge is patently erroneous and unreasonable and cannot be supported on the materials on record. 10. On the aforesaid finding the accused had definitely no right of private defence. Nothing is an offence which is done in the exercise of the right of private defence (Section 96, Indian Penal Code). Whatever might have happened inside the house, the accused had no right to pursue the deceased who was running away. He sought an attack on himself by his own threatened attack on the deceased. The deceased had clearly therefore right of private defence to protect his own body, subject to the restrictions contained in Section 99, Indian Penal Code-(Section 97, Indian Penal Code). The deceased caused only simple injuries and the right, which he had, extends to causing any harm other than death-(Section 101, Indian Penal Code). The assault by the deceased on the accused was therefore protected by right of private defence of his body and is not an offence. The deceased caused only simple injuries and the right, which he had, extends to causing any harm other than death-(Section 101, Indian Penal Code). The assault by the deceased on the accused was therefore protected by right of private defence of his body and is not an offence. The deceased having committed no offence by assault on the accused, the accused had no right of private defence. The learned Judge's enunciation of the law to the effect: "There being a reasonable doubt as to whether or not the accused had such a right, I am of opinion that the benefit of this doubt must go to the accused." is wholly untenable. The onus may be discharged in certain cases if he satisfies the court of the probability of what he has to prove from the prosecution evidence itself. If from the evidence on record the probability of the defence version appears to be true, the plea may be accepted even though the truth of the version might not have been established beyond reasonable doubt. This proposition, however, is completely different from the one ennunciated by the learned Judge which appears some what novel. If there is a reasonable doubt of the existence of the right of private defence, the plea must fail. 11. Both the points on which the order of acquittal is based are unreasonable and unsustainable. The accused is convicted u/s 302, Indian Penal Code and sentenced to imprisonment for life. The order of acquittal is set aside and the appeal is allowed. Das, J. 12. I agree. Final Result : Allowed