JUDGMENT : Barman, C.J. - The accused-Appellant Bansidhar Padhan along with his brother accused-Appellant Satruka Padhan and son accused-Appellant Purna Chandra Padhan, was charged in connection with an incident at village Nahabada, P.S. Champakpur; district Keonjhar, in the course of which the accused-Appellant Purna Chandra Padhan fatally injured his uncle (father's brother) Kalakar Padhan. All the three Appellants were convicted u/s 323 Indian Penal Code. Banshidhar was sentenced to six months rigorous imprisonment. Satruka and Purna Chandra were each sentenced to undergo rigorous imprisonment of two months. The accused-Appellant Purna Chandra Padhan was also convicted u/s 302 Indian Penal Code for the murder of the deceased Kalakar and sentenced to undergo life imprisonment; the two sentences to run concurrently. 2. The Appellants, the deceased and the eye-witnesses p.ws. 1, 6 and 7 who themselves were the victims of the incident, were all members of the same Padhan family. The motive of the assault is said to be some quarrel over the engagement of a common servant p.w.2, Champei Munda. 3. What happened, according to the prosecution case, was this; On July 19, 1964 at p.m. at village Nahabada the deceased Kalakar was assaulted' in the manner as described by the eye-witnesses in the manner as discussed hereunder. In the course of the incident, p.w.1 Baishnab Charan Padhan was injured; p.w.7 Naranga Bewa, the widow of the deceased was injured by the accused-Appellant Purna Chandra Padhan. It is further stated that the deceased was also assaulted by the, accused Appellant Banshidhar Padhan. According to the eye witnesses there was a scuffle between Baishnab (p.w.1) his wife Jambu Dei (p.w.6) and Naranga Bewa (p.w.7) the widow of the deceased Kalakar on the one hand and the three accused-Appellants on the other; it is also said that the accused Satruka Padhan and his son Hadibandhu (not charged) also participated in the incident. Kalakar died two days after receiving the fatal injuries, that is on July 21, 1964. 4. The complainant party did not lodge any information before the Police; it was only on July 21. 1964. at 8.30 p.m.-that is two days after the incident-that the Civil Surgeon, Keonjhar. (p.w.4) who held the post-mortem examination sent a report which was treated as F.I.R. on July 23, 1964. 4. The complainant party did not lodge any information before the Police; it was only on July 21. 1964. at 8.30 p.m.-that is two days after the incident-that the Civil Surgeon, Keonjhar. (p.w.4) who held the post-mortem examination sent a report which was treated as F.I.R. on July 23, 1964. In due course, after Police investigation the accused-Appellants were charged, committed and sent up for trial before the learned Sessions Judge who convicted and sentenced them as aforesaid. 5. The defence of the accused persons was one of right of private defence of person in the course of the quarrel between the parties. It was also said that a counter-case was filed by the accused-Appellant Banshidhar Padhan against the deceased Kalakar, his widow (p.w.7) and his brother Baishnab (p.w.1) for having caused grievous hurt to the accused-Appellant Purna Chandra Padhan. 6. The prosecution case is mainly based on the evidence of the three eye-witnesses namely p.w.1 Baishnab (brother of the accused-Appellant Banshidhar), p.w.6 Jambu Dei (wife of Baishnab), and p.w.7 Naranga Bewa (widow of the deceased). The prosecution also relied on the evidence of p.w.2 the common servant over whose employment there was a quarrel; he is also said to have been the occurrence. 7. It is clear from the evidence that there was a scuffle between the parties. The question is: Which party were the aggressors? A significant circumstance in this case is that the accused-Appellant Purna Chandra Padhan who is said to have given the fatal blows on the head of the deceased with lathi had also sustained three injuries on him during the course of the accident. In his statement u/s 342, Criminal Procedure Code, the accused-Appellant Banshidhar stated thus: After Purna was first assaulted by Baishnab (p.w.1), Kalakar raised his lathi at me. I gave a blow on his right hand. Thereafter, the lathi fell down from the hand of Kalakar. Then Kalakar caught hold of Purna. But I snatched away the lathi from his hand and threw it away. When Purna and Kalakar were rolling on the ground catching hold of each other., Narang Bewa assaulted both of them with a lathi, Baishnab and myself caught hold of each other and rolled on the ground. At that time Satruka and my wife arrived there. They separated me from Baishnab. When Purna and Kalakar were rolling on the ground catching hold of each other., Narang Bewa assaulted both of them with a lathi, Baishnab and myself caught hold of each other and rolled on the ground. At that time Satruka and my wife arrived there. They separated me from Baishnab. When I rose up I saw Purna and Kalakar lying on the paddy field with bleeding injuries and Narang standing near Kalakar with a lathi. Then I asked Baishnab to arrange for removing both the injured persons to the Hospital. The defence suggestion as put in cross examination of p.w.1 Baishnab was that he, Narang (p.w.7) and the deceased Kalakar attacked the accused-Appellant Puma while he (Purna) was empty-handed. 8. In what circumstances the blows fell on the accused-Appellant Purna was stated by the eye-witness thus: The material portion of the evidence of p.w.1 Baishnab on this point is that Hadibandhu (son of the accused Appellant Satruka) attempted to deal a blow on p.w.7 Naranga Bewa (widow of the deceased Kalakar), but it accidentally fell on the shoulder of Puma. The witness further stated that while p.w.7 was separating her husband (Kalakar) from Puma, her Khadu (bangle) bit the head of the latter and caused an injury. In further cross-examination the witness said that while it is true that Kalakar's wife gave two or three blows with her Khadu on accused Puma, his earlier statement that her Khadu accidentally hit the head of Puma is not correct. 9. Apart from the evidence of the principal eye-witness p.w.1 Baishnab, the view that the complainant party were the aggressors, is further confirmed by the evidence of the other eye-witnesses. The servant p.w.2 stated that the deceased "Kalakar was raising his ploughstick when the accused Banshidhar dealt a blow on his hand". The raising of the plough-stick by the deceased Kalakar in the situation he did, was sufficient to cause a reasonable apprehension of death or grievons injury in the mind of the other party. The witness denied that he had stated before the Police that the deceased Kalakar's wife picked up a lathi and assaulted accused Puma with the lathi on his head and other parts of the body. The witness denied that he had stated before the Police that the deceased Kalakar's wife picked up a lathi and assaulted accused Puma with the lathi on his head and other parts of the body. As regards p.w.6 Jambu Dei (wife of Banshidhar p.w.1) her evidence cannot be relied on; it appears from her cross-examination that she went back on her previous statements which it is unnecessary to deal with here. Similarly, the evidence of the deceased's widow Narang Bewa (p.w.7) in also not reliable; she had also gone back on her previous statements. 10. In the ultimate analysis of the evidence, it is found that there was a scuffle in the course of which the victims on both sides had sustained injuries. From the sequence in which the assaults on both sides took place it appears that the first assault on the accused-Appellant Puma Chandra Padhan was by p.w.1 Baishnab; thereafter, in the course of the scuffle the deceased Kalakar sustained the fatal injury. 11. The only point, therefore, that is to be considered is: Is the defence plea of right of private defence of person justified in this case? The reasoning on which the learned Sessions Judge did not accept the plea of right of self-defence is, in his own words, thus: Although accused Purna did not state that he brandished a lathi for self-protection, yet such a plea was suggested to p.w.7 during cross-examination. The learned lawyer appearing for the defence also vehemently argued that the accused Puma is protected by the right of self-defence. But it appears from the evidence of the witnesses that Kalakar was unarmed after the first blow was dealt on his right hand by accused Banshidhar at the beginning of the occurrence. There is no suggestion, far less any proof, that he subsequently picked up a lathi. It is also highly improbable that after sustaining the fracture of the radio us and ulna of his right hand he would be able to attack Purna with any weapon so as to create an apprehension of death or grievous hurt in his mind. The plea of self-defence is, therefore, not acceptable. 12. In our opinion, the reasoning of the learned Sessions Judge for discarding the plea of self-defence is based on mere surmises, conjectures and wrong inferences not based on evidence. The plea of self-defence is, therefore, not acceptable. 12. In our opinion, the reasoning of the learned Sessions Judge for discarding the plea of self-defence is based on mere surmises, conjectures and wrong inferences not based on evidence. His finding that Kalakar was unarmed after the first blow was dealt on his right hand by the accused Banshidhar at the beginning of the occurrence, is not correct. In fact, the evidence of p.w.1 is that when Kalakar was first assaulted by the accused Banshidhar the stick fell down from his hand, after he was- first assaulted on his hand, but he could not say what happened to that stick. This portion of the evidence of p.w.1 is to be read with the evidence in this context of p.w.2 Champei Munda, who stated that "Kalakar was raising his plough-stick when Banshi dealt the lathi blow on his hand". The inference drawn by the learned Sessions Judge that it was highly improbable that after sustaining fracture of the radius and ulna of the right hand, Kalakar (deceased) would not be able to attack Purna with any weapon, is therefore a mere conjecture and not based on any evidence. 13. Considering the evidence of the eye-witnesses as a whole, it is clear that the deceased was armed with, and in fact raised the plough-stick, which by itself was sufficient to cause a reasonable apprehension of death or grievous hurt. It is the well settled position in law that the means which a threatened person adopts, or the force which he uses, should not be weighed in golden scales. To begin with, a person exercising the right of private defence must consider whether the threat posed to his person or property is real or immediate; if he reaches the conclusion reasonably that the threat to his person or property is real or immediate; he is entitled to exercise his right. So long as the threat lasts and the right of private defence can be legitimately exercised, it would not be fair to require that be should modulate his defence step by step according to the attack be-fair there is reason to believe that the attack is over. The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run away for safety Jai Dev Vs. The State of Punjab, . 14. The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run away for safety Jai Dev Vs. The State of Punjab, . 14. The probability of the defence version support of the plea of exercise of the right of private defence of person, as taken in the statement made u/s 342 Code of Criminal Procedure (quoted above), cannot be altogether ruled out. Deceased Kalakar had raised his plough-stick, and ultimately the accused-Appellant Purna Chandra Padhan and the deceased Kalakar were rolling on the ground and catching hold of each other both with bleeding injuries. 15. In this view of the case, the accused-Appellants must be given the benefit of doubt. In the result, therefore, the order of conviction and sentence passed on the three accused-Appellants is set aside. This appeal is allowed and the Appellants are directed to be set at liberty forthwith. Das, J. 16. I agree. Final Result : Allowed