JUDGMENT P.N. Goel, J. 1. Pancham, aged about 25 years, has been convicted and sentenced under sections 304 Part I, 325/34 and 323/34 IPC to undergo RI for 10 years, 3 years and 1 year respectively. Antu, aged about 23 years, has been convicted and sentenced under section 304 Part I/34, 325/34 and 323/34 IPC to undergo RI for 5 years, 3 years and 1 year respectively. Sentences of imprisonment of both the appellants have been made to run concurrently. 2. In the morning of 10-3-1974 there took place two incidents in the village of the appellants, namely, Hamirpur Chhataon within police station Cholapur, district Varanasi. Smt. Indrawati (PW 2), daughter of Bhonu (PW 1) was coming with a load of sugarcane. According to the prosecution Banshi snatched the load from the back side. There upon there took place some exchange of words. Banshi gave 2-4 slaps to her, Bhonu reached there and reprimanded Banshi. Banshi then went sway. According to the defence Banshi was also going with a load of sugarcane. He happened to strike against Smt. Indrawati whose load of sugarcane fell down. Bhonu reached there and gave 3 slaps to Banshi. Bhonu also gave a lathi blow on the wrist of Banshi Banshi is nephew of Pancham appellant and younger brother of Kashi. He was aged about 17 years at the time of occurrence. After the above incident Smt. Indrawati and Bhonu reached their pumping set. Ramdeo, father of Bhonu was there. There was Kolhu for crushing sugarcane at their pumping set. Gur was also used to be prepared there. At about 9 A. M., i.e. about half an hour after the first incident, according to the prosecution, Pancham, Antu, Kashi and Banshi came at the pumping set of Bhonu. They did not have any weapon with them. Banshi and Kashi exhorted that Bhonu and others be assaulted. Thereupon Pancham took out a bamboo from the hut and assaulted Ramdeo and Antu took up a lathi with which pan is removed from the furnace and assaulted Bhonu. Smt. Indrawati came up to the rescue of her grandfather and father. She was also assaulted. Bhonu wielded a lathi causing injuries to the assailants. 3. The case of the appellants was that after the first incident Banshi reached his house and told of the incident. Smt. Indrawati came up to the rescue of her grandfather and father. She was also assaulted. Bhonu wielded a lathi causing injuries to the assailants. 3. The case of the appellants was that after the first incident Banshi reached his house and told of the incident. Thereupon his uncle Pancham went to the pumping set of Bhonu for making a complaint. Ramdeo and Bhonu assaulted Pancham. Thereupon, Pancham took out a bamboo from the thatch and wielded the same. 4. Police station Cholapur is 5 miles from the village of occurrence. Ramdeo died in the village a little after the occurrence. Bhonu lodged a written report at the police station at 11. 30 A.M. Ram Chandra Singh, Station Officer (PW6) took up investigation. Dr. A. K. Banerjee (PW 8) examined Bhonu and Smt. Indrawati at 2. 30 and 2. 45 P. M. respectively. 5. On the person of Bhonu there were 7 visible injuries detailed below: (Injuries quoted-Editor). 6. On the person of Smt. Indrawati there was a lacerated wound 4 cm x 1 cm. x scalp deep on the left side head 9 cm. above the left ear. On 15-3- 1974 Dr. S. K. Srivastava (PW 9) X-rayed the clavicle of Bhonu and found its fracture. 7. On 11-3-1974 Dr. R. S. Singh (PW 10) held postmortem examination on the dead body of Ramdeo aged about 65 years. There were 2 antemortem injuries detailed below : (Injuries quoted-Editor) 8. Internal examination indicated fracture of skull bones. Membranes and brain were congested. There was laceration In the brain. There was a linear fracture at the base of the skull. In the opinion of Dr. Singh injuries 1 and 2 were responsible for the death of Ramdeo. 9. On 12-3-1974 Pancham and Banshi were arrested by the investigating officer. They were sent to jail. 10. On 13-3-1974 between 10. 15 and 11. 40 A. M. Dr. S. N. Singh (DW 2) of the Jail examined Pancham and Banshi. ON the person of Pancham, he found following visible injuries : (Injuries quoted-Editor). Pancham complained of pain in the middle of head, both shoulders and right knee joint but there was no visible injury on the shoulders and right knee joint. On the person of Banshi there was one visible injury mentioned below: Tenderness and swelling around the left wrist joint. The movements of the joints were restricted to an extent of 25%. Pancham complained of pain in the middle of head, both shoulders and right knee joint but there was no visible injury on the shoulders and right knee joint. On the person of Banshi there was one visible injury mentioned below: Tenderness and swelling around the left wrist joint. The movements of the joints were restricted to an extent of 25%. There appeared to be a fracture. Banshi complained of pain in his back. 11. On 1-4-1974 Dr. K. C. Tandon (DW 1) X-rayed the injury of Banshi in S. S. P. G. Hospital Varanasi and found fracture of the ulna bone. It appears that Banshi was released on bail prior to 1-4-1974. Therefore, it was a private madico legal case of Dr. K. C. Tandon. 12. The prosecution examined Bhonu Ram, Smt. Indrawati, Nehori and Jokhan (PWs 1 to 4) as eye-witnesses of the occurrence. On the other side the appellants examined Dr. K. C. Tandon and Dr. S. N. Singh as DWs. The Vlth Additional Sessions Judge Varanasi, who tried the case believed the evidence of all the four prosecution witnesses, rejected the defence version and convicted the two appellants. He, however, observed that the case of exhortation of Banshi and Kashi was an exaggeration Therefore, these two persons were acquitted. 13. Learned counsel for the parties have been heard at length and record has been carefully examined. 14. The main question in the case is whether Pancham and Antu appellants started assaulting Ramdeo and Bhonu first or that they resorted to assaulting them after Pancham was assaulted by Ramdeo and Bhonu. It will be noticed that Banshi did not receive injury and was not involved in the marpit at the time of the second incident which is the subject of the present case. There is no case in respect of the first incident. There was a time gap of about half an hour between the two incidents, Statements of Nihori and Jokhan (PWs 3 and 4) indicate that they had not seen the marpit. 15. Statement of Nihori may be dealt with first. He has stated that at the time of occurrence he was cutting wheat crop in his field at a distance of about 60 steps from the pumping set of Bhonu. On hearing alarm he rushed towards the pumping set. He has stated that Bhonu's wife had also come to the pumping set. Statement of Nihori may be dealt with first. He has stated that at the time of occurrence he was cutting wheat crop in his field at a distance of about 60 steps from the pumping set of Bhonu. On hearing alarm he rushed towards the pumping set. He has stated that Bhonu's wife had also come to the pumping set. She was also assaulted by the appellants. She did not receive any visible injury. Bhonu and Indrawati (PWs 1 and 2) received injuries in the occurrence. Before the Investigating Officer he did not state that the wife of Bhonu had come up to the pumping set and was assaulted by the appellants. 16. He told the Investigating Officer that Pancham took out a bamboo from the hut of the pumping set and assaulted Ramdeo but this fact does not find place in his statement under section 161 CrPC. He told the Investigating Officer that when Bhonu rushed to the rescue of his father he was assaulted by Pancham and Antu appellants. He also told the investigating officer that when Smt. Indrawati rushed to the rescue of her father, Pancham and Antu assaulted her. But both these facts find no place in his statement under section 161 CrPC. It will be noticed from the above that his statement under section 161 CrPC does not at all indicate that Ramdeo, Bhonu and Smt. Indrawati received injuries in his seeing. In this connection it will be noticed that Bhonu told the investigating officer that Antu took up the lathi which was used for removing the pan. This fact is also not mentioned in his statement under section 161 CrPC. 17. According to the prosecution Pancham and Antu left the bamboo and lathi with which they resorted to assault. Nihori told this fact to the investigating officer, but this fact is also not mentioned in his statement under section 161 CrPC. 18. In the statement of Nihori under section 161 CrPC it has been mentioned that he saw Pancham and Antu assaulting Ramdeo, Bhonu and Smt. Indrawati with bamboo and lathi. Nihori is not prepared to accept this statement. He did not see Pancham being assaulted by any body. This is clearly against the statement of Bhonu. In other words it is against the case of the prosecution. 19. The investigating officer inspected the site in his presence. Nihori is not prepared to accept this statement. He did not see Pancham being assaulted by any body. This is clearly against the statement of Bhonu. In other words it is against the case of the prosecution. 19. The investigating officer inspected the site in his presence. He told him the place from where he had seen the occurrence. This place has not been shown in the site plan by the investigating officer. 20. Taking the above facts together it is evident that Nihori had not seen the occurrence. Statement of Jokhan may next be taken up. His field is about one bigha away from the pumping set. There was no crop in his field on the date of occurrence. He says that he was constructing Nail in his field. He clearly stated that as soon as Pancham and Antu came to the pumping set, they began to assault. In cross-examination he stated that the wife of Bhonu was also assaulted by the appellants but no part of her body was broken. This statement is clearly against the prosecution case. It will further be found that in her statement under section 161 CrPC it was not mentioned that Pancham took out a bamboo from the hut and then resorted to assault. It was also not mentioned in his statement under section 161 CrPC that he had seen the two appellants, Banshi and Kashi coming towards the pumping set. In his statement under section 161 CrPC he did not tell the investigating officer that the wife of Bhonu was also assaulted by the appellants. It will further be noticed that he did not see if Bhonu caused injury to any assailant at the time of occurrence. 21. The above facts clearly show that Jokhan had also not seen the occurrence. He is a co-owner with Ramdeo and Bhonu in the pumping set. On this account he appears to have come into fine witness box. 22. The Additional Sessions Judge has committed an error in placing reliance on the evidence of Nihori and Jokhan. The position that follows from the above is that on behalf of the prosecution there is evidence of Bhonu and Smt. Indrawati (PWs 1 and 2). On this account he appears to have come into fine witness box. 22. The Additional Sessions Judge has committed an error in placing reliance on the evidence of Nihori and Jokhan. The position that follows from the above is that on behalf of the prosecution there is evidence of Bhonu and Smt. Indrawati (PWs 1 and 2). The case of the prosecution is that as soon as Pancham, Antu, Banshi and Kashi came to the pumping set of Ramdeo, at the exhortation of Banshi and Kashi, Pancham took out a bamboo from the hut and Antu took up a lathi and began to assault Ramdeo and Bhonu. Smt. Indrawati came forward and was assaulted. This version is fully indicative of the fact that the 4 assailants had intentionally come up at the pumping set to assault Ramdeo and Bhonu. Defence version is that Pancham had gone to make a complaint because Bhonu had not only given slaps to Banshi but had also caused an injury on his wrist. Bhonu and Smt. 'Indrawati both have admitted that all the four persons came armed at the pumping set. It will be noticed that Pancham and Antu took up the weapons from the pumping set. These facts clearly go to show that the four persons had not come to the pumping set with the positive intention of assaulting Ramdeo and Bhonu. Therefore, there appears substance in the defence version that Pancham had come up to make a complaint to Ramdeo for assaulting Banshi. 23. The above facts further go to show that when Pancham made a complaint to Ramdeo and Bhonu for wrongly assaulting Banshi, there took place some exchange of words and then Ramdeo and Bhonu in all probability resorted to assaulting Pancham. Obviously, therefore, Pancham took out a bamboo from the thatch and Antu picked up a lathi from the pumping set and then resorted to assaulting Ramdeo and Bhonu. 24. In view of the above, there appears truth in the defence version and it does not appear that the four persons had come up intentionally to indulge in marpit. In this connection it will be noticed that the learned trial Judge did not believe the prosecution witnesses that Banshi and Kashi exhorted and then Pancham and Antu resorted to assaulting Ramdeo and Bhonu. The question which next arises is whether Pancham and Antu exceeded their right of private defence. 25. In this connection it will be noticed that the learned trial Judge did not believe the prosecution witnesses that Banshi and Kashi exhorted and then Pancham and Antu resorted to assaulting Ramdeo and Bhonu. The question which next arises is whether Pancham and Antu exceeded their right of private defence. 25. Section 97 IPC lays down that every person has a right, subject to the restrictions contained in section 99, to defend his own body and the body of any other person, against any offence affecting the human body. 26. Section 99 places three restrictions on the right of private defence. (1) There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant, or by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law. (2) There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. (3) The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. The first two restrictions are not applicable to the present case. The third restriction has been further clarified in section 100. This section lays down that the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated : Firstly, such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly, such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. 27. It follows from the above that if apprehension of death or grievous hurt can reasonably occur then the death or any other harm to the assailant can be caused. 28. Section 102 indicates the time when the apprehension indicated above commences and upto which time it continues. 27. It follows from the above that if apprehension of death or grievous hurt can reasonably occur then the death or any other harm to the assailant can be caused. 28. Section 102 indicates the time when the apprehension indicated above commences and upto which time it continues. If that is, the right of private defence of body commences as soon as reasonable apprehension of danger to body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and it continues as long as such apprehension of danger to the body continues. In the present case in the first instance Bhonu assaulted Banshi and fractured his wrist. A little later Pancham, uncle of Banshi, went to the pumping set of Ramdeo with the intention of making complaint against the illegal act of Bhonu. It seems, as alleged by the prosecution, that Antu was along with Pancham. It has been indicated above that Pancham and Antu went unarmed. Pancham made complaint of the high handedness of Bhonu to his father Ramdeo. Perhaps after some wrody altercation Ramdeo and Bhonu assaulted Pancham with lathis. Consequently, Pancham received a lacerated wound on his head and a lacerated wound on the top of the right ring finger. Thereupon Pancham took out a bamboo from the hut of Ramdeo and Antu picked up a lathi lying there. Pancham gave 2 blows with the bamboo on the head of Ramdeo and Antu assaulted Bhonu with lathi. One of the injuries of Bhonu was grievous. In view of the facts that Banshi was caused a grievous injury a little before the occurrence that Pancham was given a lathi blow on the head (most vital part of the body) and that Ramdeo and Bhonu both resorted to assaulting Pancham first, the right of private defence clearly accrued to Antu and Pancham and they could apprehend that Ramdeo and Bhonu might assault Pancham further and cause him grievous hurt or cause his death. In this way section 100 IPC clearly helps both the appellants. 29. The learned counsel for the appellants has referred to the case of Deo Narain v. State of U. P., AIR 1973 SC 473 . In this case Deo Narain and Chander Deo received injuries on their heads. Their injuries were not serious. Thereafter Chandrama was assaulted with a lathi and spear. 29. The learned counsel for the appellants has referred to the case of Deo Narain v. State of U. P., AIR 1973 SC 473 . In this case Deo Narain and Chander Deo received injuries on their heads. Their injuries were not serious. Thereafter Chandrama was assaulted with a lathi and spear. Doe Narain used the spear and caused incised wound on the left shoulder with a punctured would 4 1/2" deep on the right side of chest. The lahti injury caused lacerated wound on the right side of skull. The spear injury was responsible for the death of Chandrama. The learned Sessions Judge acquitted Deo Narain and his companion in appeal by the State High Court convicted Deo Narain holding that the right of private defence was exceeded. The Supreme Court did not agree with the High Court and observed as follows :- "what the High Court really seems to have missed is the provisions of law embodied in section 102, IPC (Quoted portion from judgment omitted -Editor). It cannot be laid as a general rule that the use of a lathi as distinguished from the use of a spear must always be held to result only in milder injury." 30. The learned counsel for the appellants has then referred to the case of Dominic Varkey v. The State of Kerala, AIR 1971 SC 1208 . In this case there was exchange of words between the appellant George and his brother Dominic. In the course of wordy altercation Dominic bent down to pick up a stone. George drew out a dagger from his waist and stabbed Dominic. Consequently Dominic died. It was held that George had not exceeded the right of self defence. It was observed : "No one can be expected to find any pattern (Quoted portion from judgment omitted-Editor). In such circumstances, George would try to ward off the danger and save himself." The principles laid down in the two cases cited by the appellants' counsel and the relevant provisions contained in the Penal Code help the appellants. In the circumstances of the present case it is obvious that Pancham and Antu both had a right of private defence and that they had not exceeded this right. Therefore, none of these two appellants can be convicted for any offence. 31. The learned counsel for the State urged that the Court cannot make out a third case. In the circumstances of the present case it is obvious that Pancham and Antu both had a right of private defence and that they had not exceeded this right. Therefore, none of these two appellants can be convicted for any offence. 31. The learned counsel for the State urged that the Court cannot make out a third case. This contention is not borne out by the material on record. There is positive case of the defence that Pancham being uncle of Banshi had gone to make complaint against the illegal act of Bhonu. The prosecution clearly alleged that Pancham, Antu, Banshi and Kashi came together, that Banshi and Kashi simply exhorted, that Pancham assaulted Ramdeo and Antu assaulted Bhonu. The prosecution admitted that Bhonu wielded a lathi and caused injuries to Pancham. It has been found above that Pancham was assaulted first. Therefore, it is not correct to say that any third case has been made out by this Court. 32. For what has been found above, the appeal is allowed and the conviction of Pancham and Antu recorded by the VI Additional Sessions Judge Varanasi on 28-6-1976 under sections 304 Part I, 304 Part I/34, 325/34 and 323/34 IPC are set aside. The appellants are acquitted in the case. They are on bail to which they need not surrender. Their bail bonds and discharged. Appeal allowed.