JUDGMENT 1. - The learned Sessions Judge, Sriganganagar, under his judgment dated 17-8-1972, acquitted all the three accused respondents of the charge under section 302 and Section 302/4 of the Indian Penal Code. The State has appealed against the acquittal of the accused respondents. 2. The facts of the case out of which this appeal arises are these : Khusal Singh PW 2 is the father-in-law of deceased Mahendera Singh, who was living with Khusal Singh in village 67 LNP, Teh. Padampur. On February 26, 1972, the goats of Makhan Singh accused appellant entered the field of PW 2 Khusal Singh and deceased Mahendra Singh was, at that time, keeping a watch on the fields. It is alleged that Mabendera Singh thought that the act of driving goats by Makhan Singh accused was intentional and as such, there was some exchange of words between the deceased Mahender Singh and accused Makhan Singh. Mahender Singh is said to have slapped Makhansingh and Khusal Singh separated them. Thereafter, at about 9 00 or 10 00 in the night, when Mahendersingh was returning from the `Kulhari' (a mechanism for extracting gur from sugar canes) of Indersingh and when he was passing in front of the house of the accused persons, all of whom are real brothers, it is alleged that the accused persons dragged Mahender Singh and carried him to their house. Labhsingh accused appellant is said to have been armed with a `Barchha' while Makhansingh had a `Gandasa' and Arjansingh had a Kulhari (axe). All the three accused respondents are said to have inflicted blows with their respective weapons to Mahendersingh. Mahendersingh fell down. The occurrence is said to have been witnessed by Bakhtawar Singh PW 1 who asked the accused persons not to beat Mahender Singh but the accused persons did not pay any heed. It is further the case of the prosecution that the accused persons tied the hands and legs of Mahender Singh with his own turban and thereafter Mahender Singh was tied with a cot. Bakhtawar Singh PW 1 informed about the incident to PW 2. It is further the case of the prosecution that the accused persons tied the hands and legs of Mahender Singh with his own turban and thereafter Mahender Singh was tied with a cot. Bakhtawar Singh PW 1 informed about the incident to PW 2. He and Bakhtawarsingh were threatened by the accused persons that in case they lodged any report, they will also meet the same fate Though it appears that in the meantime, Labhsingh had gone to the police Station Ghamu-walt to lodge the report about his version of the incident but no report was taken and Mohanlal PW 3, A.S.I., visited the village in connection with the investigation of the report by Labhsingh accused. Mohan Lal PW 3 found Mahendersingh inside the house of the accused persons in an injured condition. He recorded the statement of Mahendersingh Ex.P4 and sent the same through constable Malkiyat Singh for registration of a case. He did the usual investigation of the case on the spot. As the condition of Mahendersingh became serious while he was being taken away, Dr. Sarjeetsingh at Ridmalsar bandaged the injuries in order to stop bleeding. No sooner they left from Ridmalsar, Mahender Singh succumbed to his injuries. 3. All the accused persons were arrested on February 29, 1972 under arrest memos Ex. P. 12. A Kulhari Ex. 6 was taken in possession of from accused Arjansingh at the time of his arrest. On the information of the accused Labhsingh while he was in police custody, one `Sela' was recovered. Accused Makhansingh also gave information while in police custody and on his information a `Gandasi' was also recovered. 4. After investigation, a charge-sheet was filed against the accused persons. The accused pleaded not guilty to the charge and claimed to be tried. After the close of the prosecution evidence, the accused persons were examined under Section 313 of the Code of Criminal Procedure to explain the circumstances appearing against them in the evidence of the prosecution witnesses. The accused persons denied the version of the incident as given by the prosecution and accused Labhsingh set up a case that hat he along with the other two accused persons and their mother, were at their house at about 9.00 p.m. Mahendersingh deceased, after being drunk and armed with a lathi, came inside the house and hurled abuses. The accused persons denied the version of the incident as given by the prosecution and accused Labhsingh set up a case that hat he along with the other two accused persons and their mother, were at their house at about 9.00 p.m. Mahendersingh deceased, after being drunk and armed with a lathi, came inside the house and hurled abuses. He attacked Makhansingh with his lathi but accused Makhansingh took a step backwards and was not hit. When the deceased was giving the second blow by lathi to Makhansingh accused, he (Labhsingh) took up an axe which was lying there and gave three to four blows with it to Mahendersingh on his legs. Mahendersingh fell on the ground. According to Labhsingh, no other accused gave any beating to Mahendersingh. Thereafter, he (Labhsingh) went to the police station and reached there at about 4.00 p.m. but S.H.O. did not take the report immediately and he was made to sit. In the morning, he accompanied the S.H.O. and came to village. Thus, a right of private defence has been set up by the accused respondents. The other two accused persons have supported the version of the incident as given by accused Labhsingh. The accused persons examined Govindsingh DW 1 and Jogabai DW 2. 5. The learned Sessions Judge held that Bakhtawarsingh PW 1 was not an eye-witness and it is because of the near relationship with Khusal Singh PW 2 that he has come to support the prosecution. The dying declaration allegedly made by deceased Mahender singh to Mohanlal A.S.I. was also disbelieved. Thus, disbelieving the case of prosecution and holding that the occurrence took place as related by the defence, the learned Sessions Judge acquitted all the three accused respondents. 6. We have heard the learned Public Prosecutor and the learned advocate for the accused respondents at length. 7. The Public Prosecutor has tried to persuade us that the learned Sessions Judge could not have disbelieved the statement of Bakhtawarsingh PW 1, the sole eye-witness in the case, so far the actual beating to deceased Mahendersingh is concerned. He further submits that the dying declaration of Mahendersingh is a very important piece of evidence and it is corroborated by the other circumstances on record. He further submits that the dying declaration of Mahendersingh is a very important piece of evidence and it is corroborated by the other circumstances on record. Therefore, according to the learned Public Prosecutor there is sufficient material on record on which all the accused persons should have been convicted under Section 302/34 of the Indian Penal Code. According to the learned advocate for the accused respondents, in disbelieving the eye-witness Bakhtawarsingh PW 1 and the alleged dying declaration of Mahendersingh, the learned Sessions Judge has given weighty reasons and while sitting in an appeal against acquittal in a case of the present nature, this Court should not take a different view of the evidence on record. 8. We have examined the case in the light of the arguments advanced before us. 9. Though this Court while hearing an appeal against acquittal has all the powers and can re-appraise the evidence for itself, but if the view of the evidence on record by the trial court is reasonable and is not perverse, generally, this court does not inference in an order of acquittal. So far as the actual beating to deceased Mahendersingh is concerned, the solitary witness in this case is Bakhtawarsingh PW 1. Though he has tried to conceal his closeness of relation with Khusalsingh PW 2, the father of deceased Mahendersingh, but there is sufficient material on record on which it can be said that he is related to Khusalsingh PW 2. Bakhtawarsingh admits that Dayalsingh has two sons : Arjansingh and Gajansingh and both of them have been married to two of his (Bakhtswarsingh's) daughters. According to him, though in the committing court, he stated, that Dayalsingh is the elder brother of Khusalsingh, he had not stated that he was the real elder brother. Khusalsingh PW 2, is his statement (p. 22 of the paper book) has stated that they are five brothers. Though he has stated that Bakhtawarsingh is in no way related to him, but on the statement of Bakhtawarsingh PW 1, it cannot be disputed that his two daughters have been married to two sons of Dayalsingh, who is elder brother of Khusalsingh, may not be a real brother and only a cousin brother. The learned Sessions Judge, on the appreciation of the evidence has also observed that Dayalsingh is real brother of Khusalsingh and this fact has been concealed. The learned Sessions Judge, on the appreciation of the evidence has also observed that Dayalsingh is real brother of Khusalsingh and this fact has been concealed. In holding so, besides relying on the statement of Bakhtawarsingh recorded in the committing court, he placed reliance on the statement of DW 1 Govindsingh whose statement is to the effect that Dayalsingh and Khusalsingh are real brothers. The learned Sessions Judge was conscious that only because of relationship, the testimony of a witness has not to be discarded and all that is required of the court is to scrutinise the evidence of such a witness with caution. After examining the statement of Bakhtawarsingh PW 1, the learned Sessions Judge held that he was not a witness to the occurrence. The conduct of this witness was abnormal and was against normal human conduct in as much as after informing Khusalsingh, goes to his house, does not care to assemble the other neighbourers and also did not make any attempt to see that Mahendersingh, who according to him was only injured till then was rescued from the house of the accused persons. He is said to have remained at his house till 12.00 noon the next day. The learned Sessions Judge has discussed the various infirmities in his statement, in pages after pages, and has not placed reliance upon him. According to him, accused Labhsingh was armed with a Barchhi and he gave a blow with it on the chest of deceased Mahendersingh. So, it is a common knowledge that Barchhi (spear) is a pointed weapon and if a blow is given on the chest, normally it will leave a punctured wound. But a look at the post-mortem report of Mahendersingh deceased and on the statement of Dr. Rampratap PW 5, who conducted the autopsy on the dead body, will show that there is no punctured wound. The deceased had seven injuries, out of them, injuries Nos. 1,2, 3 and 7 were incised wound. Therefore, we are unable to place reliance on the statement of Bakhtawarsingh PW 1 and are unable to hold that he is witness to the occurrence. 10. The other piece of evidence is the dying declaration Ex. P 4. The learned Sessions Judge contains that the deceased was not in a position to have made a dying declaration and did not make any. 10. The other piece of evidence is the dying declaration Ex. P 4. The learned Sessions Judge contains that the deceased was not in a position to have made a dying declaration and did not make any. Though, we are unable to subscribe to this conclusion of the learned Sessions Judge, but as we shall presently show, to us, it appears that the deceased did not make the dying declaration Ex. P 4. Mohanlal ASI, PW 3, has stated that Mahendersingh was conscious when he reached the house of the accused persons in the village. He recorded the statement of Mahendersingh Ex. P4 on February 27, 1972 at 11.00 a.m. He admits that when he recorded the dying declaration of Mahender Singh, he had called other villagers. According to him, at that time. Khusalsingh and three or four more persons were present but surprisingly, he did not ask any of them to put their signatures on the dying declaration. Khusalsingh PW 2 does not state that the deceased made any dying declaration in his presence to Mohanlal PW 3 or that Mohanlal PW 3 had reduced it into writing. He has made a categorical statement that in his presence the statement of Mahendersingh was not recorded by the SHO. Under Rule 6.22, sub-rules (3) and (4) of the Rajasthan Police Rules, 1965, if neither a magistrate is available nor a gazetted police officer is present, a dying declaration has to be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case and when no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it has to be recorded in the presence of two or more police officers. In this case, as per the statement of Mohan Lal PW 3, there were Khusalsingh and others present but signatures of none of them were obtained on Ex. P4 nor the presence of any one has been recorded in the dying declaration. That apart, Khusalsingh does not support Mohanlal PW 3, as we have already stated earlier. Besides that, a look at Ex. P4 nor the presence of any one has been recorded in the dying declaration. That apart, Khusalsingh does not support Mohanlal PW 3, as we have already stated earlier. Besides that, a look at Ex. P4 will show that even in it, it is mentioned that Labh Singh was armed with a `Barchha' and he gave blows with it to Mahender Singh but the doctor on examination did not find any injury by Barchha (spear) on the dead body of Mahendersingh. We are, therefore, unable to take a different view than the one taken by the learned Sessions Judge and cannot place any reliance on the dying declaration Ex. P4 allegedly made by the deceased to Mohanlal PW 3. 11. No other witness has been examined on behalf of the prosecution to show that the deceased was taken away by the three accused persons to their house. The case of the prosecution that the accused persons took away the deceased to their house is not borne out on record. As already stated earlier, the defence of accused Labhsingh was that it was the deceased, armed with a lathi, who had come to the house of accused respondents at about 9 00 am. and had tried to attack Makhan Singh accused with that lathi. It is also his case that at that time, the deceased was drunk. Though the prosecution has tried to explain that at Ridmalsar, because the condition of Mahendersingh was serious as a result of the injuries, he was given some liquor but we are unable to agree with the statement of Khusalsingh to that effect because this fact was stated, for the first time, in the court and the possibility cannot be excluded that it was so said because at the time of post-mortem examination, the doctor stated, that after opening the body, he detected smell like alcohol. That appears to be more probable that as is the case of the defence, the accused, after having drunk, went to the house of the accused persons at 9 00 p.m. because earlier the same day, an occurrence had taken place in the fields of Khusalsingh PW 2, father-in-law of the deceased, in between Mahendersingh deceased and Makhansingh accused. But the question is as to whether and if so, on the material on record, any case is made out against all or any of the accused persons? 12. But the question is as to whether and if so, on the material on record, any case is made out against all or any of the accused persons? 12. Before we consider as to whether the statement of accused Labhsingh under Section 313 of the Code of Criminal Procedure, is a piece of evidence against the accused or not and whether, if it is taken into consideration, any case is made against the accused Labhsingh at least or not, we will like to deal with some other circumstances of the case. The injured Mahendersingh was found inside the house of the accused persons when Mohanlal PW 3 arrived. The fact that the deceased was found inside the house of accused persons is a relevant circumstance to be taken into consideration Besides it, Dr. Rampratap PW 5, on conducting the autopy on the dead body, found that there were seven injuries, including four incised wounds. The first was at the lower pole of left testicle tunica vaginal is congested with testicular mass coming out of the wound. The other injuries were on the left thigh, left scapula and right hand. In the opinion of Dr. Rampratap PW 5, injury No. 1 could be caused by a sharp pointed weapon but as already observed earlier, a sharp pointed weapon will result in a penetrated wound if aimed on the testicles or on the chest. If these circumstances are taken into consideration along with the statement of accused Labhsingh under section 313 Cr. PC, to our mind, so far as accused Labhsingh is concerned, he exceeded the right of private defence of person of Makhansing, his own brother. In Narainsingh v. State of Punjab, 1963 (3) SCR 673 . While dealing with Section 342 of the Code of Criminal Procedure, 1898, which is analogous to Section 3)3 of the Code of Criminal Procedure, 1973, their Lordships observed, "If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him the court may relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety. It is not open to the court to dissect the statement and to pick out a part of the statement which may be incriminative, and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on record. If the accused admits to have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him divorced from the explanation." This ruling was referred to in Sampat Singh v. State of Rajasthan, 1969 (1) SCC 367 and placing reliance on the statement of the accused under Section 342 of the Code of Criminal Procedure, which is analogous to section 313 of the Code of Criminal Procedure (New), along with other evidence, it was held that it could be relied upon. 13. The statement of accused under Section 313 Cr. PC is also relevant and if in such a statement, the accused confesses to the commission of the offence charged against him, then the court may rely upon that confession and proceed to convict him, but his statement as a whole should be taken into consideration. In Nishi Kant v. State of Bihar, AIR 1969 SC 423 , it was held that the court may rely on a portion of the statement of the accused, if the other portion is inherently improbable and in the instant case, the circumstances that Mahendersingh was found lying injured inside the house of the accused Labhsingh with injuries with a sharp weapon, if taken into consideration along with the confession of the accused under Section 313 Cr. PC, to us, it appears to be a case exceeding the right of private defence, so far accused Labhsingh is concerned. 14. We have already stated earlier that the case of the accused Labhsingh is that it was the deceased who after having drunk, came to his house at about 9.00 p.m. and aimed two lathi blows at Makhansingh and apprehending grievous hurts at the hands of Mahendersingh to Makhan Singh, Labhsingh picked up an axe which was lying there and caused injuries to him. There are four injuries, including one on the testicles and there appears to be no justification as to why so many blows were given to deceased Mahendersingh It has come in the statement of Dr. There are four injuries, including one on the testicles and there appears to be no justification as to why so many blows were given to deceased Mahendersingh It has come in the statement of Dr. Rampratap PW 5 that injury No. 1 was sufficient in the ordinary course of nature to cause death. The right of private defence does not extend to inflicting of more harm than the occasion requires. In the facts and circumstances of the present case, we are of the opinion that accused Labh Singh exceeded right of private defence of his brother Makhansingh. As we have already stated above, injury No. 1, according to Dr. Rampratap was sufficient in the ordinary course of nature to cause death, we are of the opinion that the accused Labh Singh is liable under Section 304 Part I of the Indian Penal Code for the offence of culpable homicide not amounting to murder. 15. So far as the other accused respondents Makhansingh and Arjansingh are concerned, we find no case against them and no question interference against them arises. 16. In the result, we hereby dismiss the State appeal so far as accused respondents Makhansingh and Arjan Singh are concerned. But we allow the State appeal against accused Labh Singh and convict him under Section 304 Part I of the Indian Penal Code and sentence him to undergo five year's rigorous imprisonment. The accused shall surrender in the trial court to undergo the sentence awarded or any remaining part thereof, failing which, the trial court shall take steps to apprehend accused respondent Labhsingh so that he undergoes the sentence awarded or any remaining part thereof.Order Accordingly. *******