JUDGMENT : ( 1. ) IN this appeal, the two appellants Dhaniram and Maniram have challenged their convictions under section 304 (part II) /34 of the indian Penal Code for which each of them was sentenced to undergo rigorous imprisonment for a period of three years. ( 2. ) THE two appellants along with six others Radheshyam, Mst. Sukwariya, Mst. Hiramani, Mst. Sahodri, Mst. Gulbasiya and Salikram were prosecuted under section 302 /34 of the Indian Penal Code for committing the murder of Brijlal on 1-11-1969. All of them have been acquitted for the offence under section 302 /34 of the Indian Penal Code but the two appellants have been convicted as mentioned above. ( 3. ) MATUKDHARI (P. W. 1) is the father of the deceased Brijlal. The two appellants are brothers. Mst. Hiramani is the wife of the appellant Dhaniram. Mst. Sahodri is the wife of the appellant Maniram. Mst. Sukwariya is the mother of the two appellants. Mst. Gulbasiya is the sister of the appellants. Radheshyam is the brother of Mst. Hiramani while Salikram is the brother of the appellant Dhanirams father-in-law. Brijlals younger brother is married to the sister of Roopchand (P. W. 9 ). Golari (P. W. 11) is a cultivator having a Khaliyan behind her house. She is in the keeping of Anandlal (P. W. 15), triveni (P. W. 12) is her son. She had sub-let her lands to Matukdhari (P. W. 1) on adhiya. The appellants house is separated from her house by a kothar. On the relevant date 1-11-1969 at about 1. 00 p. m. the deceased brijlal was in his khaliyan and at this time Mst. Hiramani was at the well belonging to her husband. ( 4. ) THE prosecution case is this:- Near the well of Golari (P. W. 11), there is a road and on the other side is the well of the appellants. The deceased Brijlal by gesture asked Mst. Hiramani to come but she did not respond. At this time the two appellants came there and seeing the deceased making a gesture at Mst. Hiramani assaulted him with lathis. Golari (P. W. 11) raised a hue and cry which attracted Roopchand (P. W. 9), Devbir (P. W. 13) and jagmohan (P. W. 14) who also witnessed the two appellants and other acquitted accused assaulting with lathis, lota etc Thereafter the appellants and their associates fled away. Hiramani assaulted him with lathis. Golari (P. W. 11) raised a hue and cry which attracted Roopchand (P. W. 9), Devbir (P. W. 13) and jagmohan (P. W. 14) who also witnessed the two appellants and other acquitted accused assaulting with lathis, lota etc Thereafter the appellants and their associates fled away. Devbir (P. W. 13) and others removed Brijlal to the Court-yard of Golari (P. W. 11) and from there they placed him on a cot and took him to the police-station Khadgawan. Matukdhari (P. W. 1)was returning from the Khadgawan police-station and saw Devbir (P. W. 13)Rajlal, Barelal and others bringing the injured and unconscious Brijlal. They , all came to the Khadgawan police-station where Matukdhari (P. W. 1) lodged a report which was recorded in the rojnamcha sanha No. 16. Ex. P. 1 is its true copy. ( 5. ) DR. Shanker Punjaji Shegokar (P. W. 16) examined Brijlal at 8,00 p. m. on 1-11-1969 and found his condition serious. As per report (Ex. P. 23) he found the following injuries on his person :-[after describing the contusions on the right wrist joint, right arm, forehead, right thigh, right hypochondrium region of abdomen and chest and left side of back of body from the left scapular bone, the judgment continues-] ( 6. ) DR. Shegokar (P. W. 16) stated that the injuries could be caused by lathis. Since it was a suspected case of head injury and the condition of the patient was serious, Dr. Shegokar sent Brijlal to Baikunthpur in Ambulance but he died on the way. He was, however, taken to the Baikunthpur police-station and from there to the Baikunthpur hospital Dr. K. C. Sengupta (P. W. 3) performed the post mortem examination and as per report (Ex. P. 3)found the above noted external injuries on his person. On dissection, Dr. Sengupta found that under all the injuries the underlying tissues were congested. There was fissured fracture of frontal, left and right temporal and left and right parietal bones. There were subdural, extradural haemorrhages and also intracranial haemorrhages below the above fractured surface. The cause of death was shock and haemorrhage resulting from the injuries described above over the skull bones which were fractured. Injuries Nos. 3 and 4 were sufficient in the ordinary course of nature to cause the death of the victim. ( 7. There were subdural, extradural haemorrhages and also intracranial haemorrhages below the above fractured surface. The cause of death was shock and haemorrhage resulting from the injuries described above over the skull bones which were fractured. Injuries Nos. 3 and 4 were sufficient in the ordinary course of nature to cause the death of the victim. ( 7. ) THE two appellants stated that the deceased was forcibly dragging hiramani from the well towards his house and had taken her up to the khaliyan of Golari. Dhaniram admitted that he gave two lathi blows while Maniram admitted to have given two or four lathi blows to the deceased. They stated that they had done so with the object of rescuing Mst Hiramani from the clutches of the deceased. ( 8. ) THE trial Court after scrutiny of the evidence recorded the following findings: (i) From the evidence of Golari (P. W. 11) it is obvious that Roopchand (P. W. 9), Devbir (P. W. 13) and Jagmohan (P. W. 14) reached the place of occurrence when the occurrence was already over and, therefore, they could not have seen the occurrence at all. (Paragraph 12 of the Judgement ). (ii) The circumstances suggest that Roopchand (P. W. 9), Devbir (P. W. 13) and Jagmohan (P. W. 14) had not really seen the occurrence and, therefore, they have given different versions (Paragraph 13 and 14 of the Judgment ). (iii) The evidence of Golari (P. W. 11) established that the appellant dhaniram gave two lathi blows on the head of Brijlal and Maniram gave two lathi blows on the nose of the deceased. (Paragraph 18 of the Judgment) (iv) It is proved that the deceased first called Dhanirams wife by gesture of hand and when she did not go, the deceased caught hold of her and started forcibly taking her away while she was crying. Thus the accused persons wanted to rescue Dhanirams wife Mst. Hiramani and their main intention was to rescue her. (Paragraph 19 of the Judgment ). (v) The deceased was abducting Mst. Hiramani, the wife of the accused Dhaniram and hence Dhaniram and Maniram had a right of private defence for defending the body of Mst. Hiramani and this right could be extended to the voluntary causing of death subject to the restrictions mentioned in section 99 of the Indian Penal Code. (Paragraph 21 of the Judgment ). Hiramani, the wife of the accused Dhaniram and hence Dhaniram and Maniram had a right of private defence for defending the body of Mst. Hiramani and this right could be extended to the voluntary causing of death subject to the restrictions mentioned in section 99 of the Indian Penal Code. (Paragraph 21 of the Judgment ). (vi) Dhaniram and Maniram exceeded the right of defence of person. ( 9. ) THE State counsel relied on the evidence of Roopchand (P. W. 9), devbir (P W. 13) and Jagmohan (P. W. 14) and supported the findings of the trial Court on the ground that the two appellants assaulted the deceased even after he had fallen down. The lower Court, however, disbelieved the presence of the prosecution witnesses Roopchand (P. W. 9), Devbir (P. W. 13) and jagmohan (P. W. 14) and held that they reached the place of occurrence after the marpit was over. I have also gone through the evidence and found this conclusion fully supported by record. ( 10. ) GOLARI (P. W. 11) is the sole eye-witness. She saw the assault by the two appellants but did not state that the deceased was beaten after he had fallen down. Thus the solitary eye-witness did not testify to the assault on the fallen Brijlal. It is obvious that the trial Court did not take her evidence into account whether Brijlal was assaulted even after he had fallen down or not. The trial Court in arriving at the finding that the right of private defence was exceeded did not take into account the circumstances that the assault was also on a fallen victim. The fact that Brijlal was also assaulted after he had fallen down is not borne out by the prosecution evidence. Therefore, from this lone circumstance which on record was also not proved, it could not be held that the appellants exceeded the right of defence of person. ( 11. ) IN Kammu and others v. State of M. P. (1972 MPLJ Note No. 129-1968 JLJ Short Note 99), the established principles on the right of private defence have been summarised as follows: (a) Even if the accused does not plead self-defence, it is open to the court to consider such a plea if the same arises from the material on record. (b) The burden of establishing the plea is on the accused but he has only to establish a prima facie case and the burden is discharged when on a consideration of the evidence the Court is left in doubt. (c) In considering whether the force used is not excessive, the Court must take a practical view of the circumstances and the matter should not be weighed in golden scales. ( 12. ) IN Vishwanath v. The State of Uttar Pradesh ( AIR 1960 SC 67 ) it is observed: "the view that the word "abducting" used in the fifth clause of section 100 of the Penal code refers to such abducting as in an offence under that Code and not merely to the act of abduction as defined in section 362 thereof is not correct. On a plain reading of clause fifth of section 100, there does not seem to be any reason for holding that the word "abducting" used in the clause means anything more than what is defined as "abduction" in section 362. All that the clause requires is that there should be an assault which is an offence against the human body and that assault should be with the intention of abducting, and whenever these elements are present the clause will be applicable. " Where the appellants sister was being abducted from her fathers house by her husband, and there was an assault on her and she was being compelled by force to go away from her fathers place : held, that the appellant had the right of private defence of the body of his sister against an assault with the intention of abducting her by force and that right extended to the causing of death. " ( 13. ) IN Victor alias Kalloo v. State of Madhya Pradesh (1966 MPLJ 899) it is held : "these decisions show that no such circumstances to bring the case of an accused within an exception shall be presumed unless he has introduced evidence on the point by cross-examination of the prosecution witnesses or by adducing defence evidence or by stating the circumstance in the examination under section 342, Criminal Procedure Code, if such statement read with the circumstances brought out creates a reasonable doubt that the plea may be true. The burden does not, in other words, extend to proving the defence affirmatively but the probability of the truth of the defence must be reasonably probable. This dots not mean that mere statement of the accused is enough; but what is necessary is that it must be reasonably probable. " ". . . It is true that the appellant gave three or four blows on the chest when probably one would have been enough to disable Shyamlal. However, for this reason alone it cannot be said that the appellant exceeded his right of private defence. He acted in the heat of moment. He could not have any time to deliberate when he should have stopped. Accordingly, I hold that his case falls fully under section 100 of the Indian Penal Code. " ( 14. ) IN Gulab v. State (1964 JLJ Short Note 95) it is held : "being a woman she was not able to protect herself and was crying for help. Gulab (accused) happens to be a member of the family, but even if an outsider sees a woman at the point of being raped and kills the wrong-doer so as to save her, he would be within the right of private defence. This right extends not only to oneself but also to any other to whom the victim looks for help and protection. It is also worth noting that Gulab was already in possession of an axe for perfectly peaceful purpose. All that he did was to run up with the axe in his hand and finding how matters stood, hit the offender with that weapon. The case falls under section 100, Indian Penal Code. " ( 15. ) IN Noshe Khan v. State of M. P. (1972 MPLJ Note No. 120 = 1970 JLJ S. N. 23) it was observed : "even so in judging the necessity of causing harm to the attacker, just allowance for the sentiment of the person attacked and placed in a situation of imminent peril, when he has no time to think calmly and modulate his defence accordingly but the sole object of warding off the danger facing him, has to be made. That is why it is said that the extent of such exercise of right of private defence cannot be weighed in golden scales. That is why it is said that the extent of such exercise of right of private defence cannot be weighed in golden scales. The words of Holmes, so often quoted and followed that "detached reflection cannot be demanded in the presence of an uplifted knife" Brown v. U. S. (1921 256 US 335 at p. 343) aptly lay down the approach the Courts have to make in judging the quantum of harm permissible in exercise of the right of private defence. " ( 16. ) IN view of the above legal position, the question for consideration is whether the appellants are protected by the exercise of the right of the defence of person of Mst. Hiramani or whether, as held by the trial Court, they had exceeded that right. There could be no doubt that Mst. Hiramani was being taken away by force inspite of her protests and, therefore, there would be the right of private defence of the body of Mst. Hiramani against the intention of abduction by force and that right could be extended upto the causing of death. The two appellants had returned from their field and had sickles with them but they did not bring them nor used them against the deceased. They picked up small lathis and gave strokes with the dominant intention of rescuing the woman in distress. As pointed out in Amjad Khan v. The State ( AIR 1952 SC 165 ), these things cannot be weighed in too fine a set of scales or in golden scales. It may be mentioned that the appellants witnessed the forcible abduction of Mst. Hiramani in open day which must have excited them. Flagrant violation of the womans honour is taken serious notice of especially when the woman sought to be abducted was the wife of the appellant Dhaniram and also related to the appellant Maniram as his brothers wife. In these circumstances, one cannot be very nice in measuring the precise amount of injury which a husband and his brother in that situation of life might inflict upon the abductor. To my mind the steps taken by the appellants were such to which no exception could be taken and they were perfectly justified in what they did. ( 17. ) IN the circumstances, the trial Court was wrong in holding that the appellants exceeded the right of private defence of person. To my mind the steps taken by the appellants were such to which no exception could be taken and they were perfectly justified in what they did. ( 17. ) IN the circumstances, the trial Court was wrong in holding that the appellants exceeded the right of private defence of person. Disagreeing with the trial Court, I find that the two appellants acted well within their right. Their convictions under section 304 (Part II)/34 of the Indian Penal Code cannot be sustained. ( 18. ) IN view of the above, the convictions of the two appellants Dhaniram and Maniram under section 304 (Part II) /34 of the Indian Penal Code and the sentence of rigorous imprisonment for a period of three years on each of them are set aside, and they are acquitted of the offence charged with. Their bail bonds shall stand cancelled. Conviction set aside.