JUDGMENT Oza, J.- 1. This is an appeal filed by state against the acquittal of respondent Ishak from a charge under section 302 IPC recorded by the Sessions Judge Indore. 2. The respondent is alleged to be a resident of village Narela, Police Station Ingoria in Ujjain District. It is alleged that he was a milk-vendor and was facing a prosecution for selling adulterated milk within the railway limits at Ujjain. His case was being tried by the Railway Magistrate at Indore. The relations of the respondent approached Shri Bansal Advocate P.W. 22 to apply for his bail and Shri Bansal got him released on bail and the date for hearing of that case was fixed on 1st May 1971. It is alleged that on this day Shri Bansal told Ishak that he would not appear as his fees had not been paid. Thereafter on 1st May 1971, Ishak appeared in the Court of the Railway Magistrate Indore without a counsel. His case was taken up at about 3-0 P.M. but even before his case was taken up he approached the reader of the Court one Shri Pancholi P.W. 20, complaining that he was being threatened outside by some persons. Thereupon Shri Pancholi walked out to see if there were any persons outside the Court but found none. When the case was called out, the respondent repeated his apprehension before the Magistrate. He also said that he was not well. The learned Magistrate asked him whether he wanted his case to be taken up or not and on his suggestion that let the witness who had some be examined, the witness who was present was examined. After that the respondent again approached the Magistrate and said that he was afraid that he would be beaten. Thereupon the Magistrate (P.W. 19) asked constable Brijlal P.W. 15 happened to be in the Court-room to escort the respondent to the railway station or the bus-stand wherever he wanted to go. The constable came out of the Court-room with Ishak and according to him, he had hardly gone down the stairs of the Court-room when Ishak took off his shoes and ran away. The constable, however, did not see any person attempting to manhandle the respondent within a few moments the respondent disappeared on the street. The constable returned with Ishak's shoes and deposited them under an almirah in the Court-room. The constable, however, did not see any person attempting to manhandle the respondent within a few moments the respondent disappeared on the street. The constable returned with Ishak's shoes and deposited them under an almirah in the Court-room. The shoes were later seized by the police. According to constable Brijlal, Ishak told him when they were going out of the Court-room that they were Bansal Advocate's men who were threatening him. According to the prosecution, after some time the respondent was seen running on the road coming from the Christian College towards the Purohit Lodge. He was drenched in mud from head to foot. It is alleged that he was followed by some persons who were shouting "Catch him". When he reached near the mouth of the 'Galiyara' leading to Purohit Lodge the persons who were following him surrounded him. In the meantime, the deceased Khemraj, who was a man from Delhi, came on a bicycle and he got down from the bicycle in front of the 'Galiyara', put the bicycle on the stand and turned towards the 'Galiyara' to enter the lodge where he was staying in Room No. 15. Thereupon the respondent gave a blow with a knife on the back of Khemraj and after giving him the blow ran towards the railway station. He was chased by people who shouted "Ishak has stabbed". He could not be caught and ran into the room of the Station Master Shankarlal P.W. 27, stood by his side and asked for help. Ishak was carrying the blood-stained knife in his hand and some railway police constables had seen him, running and entering the station master's room. They arrived inside the office of the Station Master, apprehended the respondent and seized the blood-stained knife. 3. In his statement under section 342 of the Code of Criminal Procedure the respondent denied to have given a blow with the knife to Khemraj. According to him, when he came out of the Court, the constable who had come to escort him was not inclined to go with him and he saw a gang of about 7 or 8 persons waiting for him. Some of them were armed with hockey-sticks and some with 'sariyas'. He therefore ran and this gang of persons followed him. He was surrounded at the bus-stand and was beaten. Some of them were armed with hockey-sticks and some with 'sariyas'. He therefore ran and this gang of persons followed him. He was surrounded at the bus-stand and was beaten. There he fell in the mud but somehow escaped and ran towards the Purohit Lodge. He was again chased and was encircled outside the bus-stand. Thereafter, he again managed to escape and ran towards the railway station. According to him, he was arrested by the railway police on the platform. He also denied that he was carrying a knife at that time. 4. On trial, the learned Judge accepted the evidence of the prosecution witnesses as regards the respondent having stabbed the deceased. The learned Judge also found on the basis of medical evidence that the stab wound had penetrated deep into the abdominal cavity, tearing the spleen and the diaphragram and had cut vital organs. The learned Judge found that the injury was sufficient in the ordinary course of nature to cause death. But the learned Judge, giving advantage of Sections 106 and 79 of the Indian Penal Code, held that the respondent was entitled to the right of private defence and therefore acquitted him. This is an appeal filed by State against the order of acquittal. 5. The eye-witnesses in the case examined by the prosecution are Chhaganlal P.W. 1. Rameshchandra P.W. 2, Devendrakumar P.W. 3 & Kamtaprasad 5. All these witnesses are unanimous as regards their description of the incident and they say that this respondent, carrying a knife in his hand came running from the Christian College side towards the Purohit Lodge. When he arrived near the Purohit Lodge, he was surrounded by some 5 or 7 persons. At that time Khemraj arrived on a bicycle. Khemraj put his bicycle on the stand and turned towards the Purohit Lodge. When he was just entering the Galiyara approaching the Purohit Lodge, the respondent gave him a blow on his back with the knife which he was carrying. On this evidence the learned Judge found: "The man was encircled near the mouth of the Galiyara and soon he was seen emerging out. When he was just entering the Galiyara approaching the Purohit Lodge, the respondent gave him a blow on his back with the knife which he was carrying. On this evidence the learned Judge found: "The man was encircled near the mouth of the Galiyara and soon he was seen emerging out. At the very time Khemraj was seen putting his cycle on its stand and when he turned towards the Galiyara, the mudstained fellow gave him a knife blow from behind." Apparently, therefore, the blow to Khemraj was inflicted by the respondent from behind and when Khemraj had put his cycle on the stand and was moving towards the Purohit Lodge. It is also clear from the evidence and findings of the learned Court below that deceased Khemraj was not armed and did not do anything to indicate that he wanted to surround or catch the respondent Ishak. 6. The evidence of the witnesses also indicates that immediately after the stabbing people raised a cry that Ishak had stabbed, and started a chase to catch him and as a result of this he ran towards the railway station. The evidence of Bhagwatiprasad P.W. 6 and Aminuddin P.W. 7 shows that they saw him running towards the station and ultimately arrested him inside the station-master's room with a blood stained knife in his hand. On the basis of this evidence the learned Court below held that Ishak the present respondent, was the author of the injury inflicted on Khemraj. 7. Khemraj, apparently, was a man from Delhi who had come on some business and stayed in the Purohit Lodge. At the time when he was attacked he was carrying Rs. 8800/- in his pocket which' according to the prosecution evidence was given to some acquaintance of his who was called by telephone in the hospital. The learned Court below found that there was no motive for the respondent to have stabbed the deceased although from the circumstance that he was carrying in his pocket an amount of Rs. 8800/- it was suggested by the prosecution that probably the stabbing was done to secure this money but it did not succeed because people immediately arrived on the scene and started a chase of the respondent. On these findings the learned Judge felt that the respondent is entitled to right of private defence by applying Sections 79 and 106 of the Penal Code. On these findings the learned Judge felt that the respondent is entitled to right of private defence by applying Sections 79 and 106 of the Penal Code. 8. Section 79 of the Indian Penal Code, on which reliance was placed by the learned trial Court reads: "79. Nothing is an offence which is done by any person who is justified by law, or who by reasons 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." Apparently, this section will not be applicable as there is nothing to indicate that the deceased ever chased the respondent or was trying to attack him. In fact, there is no plea even raised by the respondent to bring his case within the purview of Section 79 of the Penal Code. Learned trial Court also relied on Section 106 of the Penal Code which runs: "105. If in the exercise of the right of private defence against an assault which reasonably came the apprehension or death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk." This section contemplates an assault which reasonably causes apprehension of death and therefore contemplates exercise of the right at the risk of harm to an innocent person. First, there is nothing in the evidence to indicate that anyone of the group of people which was following the respondent was armed with any deadly weapon. The cry, attributed by the witnesses to that group of people also is only "Pakdo, Pakdo". Apparently, therefore, even if some persons were chasing the respondent and none of them was carrying any arm it cannot be said that there was reasonable apprehension of death. The facts found in the case also indicate that the deceased had gone out of the crowed on the foor-path, had placed his bicycle there and was turning towards the Purohit Lodge. This also clearly goes to show, therefore, that there was no occasion for the deceased to exercise his right in the manner in which it would harm the deceased. From the evidence it is clear that the deceased was stabbed in the back. The witnesses also indicate that the respondent stabbed the deceased from behind. This also clearly goes to show, therefore, that there was no occasion for the deceased to exercise his right in the manner in which it would harm the deceased. From the evidence it is clear that the deceased was stabbed in the back. The witnesses also indicate that the respondent stabbed the deceased from behind. It is also clear that the deceased was not carrying any arm. In view of these circumstances and on the facts found by the trial Court itself, it cannot be held with the aid of Sections 79 and 106 of the Penal Code that the respondent was entitled to right of private defence and to this extent the conclusions arrived at by the learned Court below are not justified. 9. As regards the offence, it is clear that the respondent took out a knife from his pocket and pushed that knife in the back of the deceased which went deep enough to harm the vital parts resulting in his death. In these circumstances it cannot be doubted that the respondent intended to cause death. The medical opinion also showed the injury was sufficient in the ordinary course of nature to cause death. 10. Consequently, the appeal is allowed. The acquittal of the respondent Ishak from the charge under Section 302 IPC is set aside. He is convicted for offence under Section 302 IPC and sentenced to imprisonment for life. He is on bail. He shall surrender to his bail and serve out the sentence.