JUDGMENT B.N. Katju, J. 1. Radhey Shyam has filed this appeal against the judgment of VII Additional Sessions Judge. Etawah dated 30-9-1981 passed in Sessions Trial No. 12 of 1981 convicting "him under Section 302 IPC. Section 25 Arms Act and Section 5 of Indian Explosives Act and sentencing him to death, two years rigorous imprisonment and two years rigorous imprisonment respectively. 2. The case of the prosecution is that on 16-6-1980 at 3.10 P. M. while Head Constable Shiv Nath (PW 5)and Constables Shyam Manohar (PW 3) and Brijesh Narain (PW 4), who were: posted at Out-Post Asthal of Police Station Kotwali Etawah were on; patrol duty along with other constables in Mohalla Lalpura they saw the appellant and Kishan Kahar deceased fighting with each other near the Jain Dharamshala and the appellant took out a bomb from his pocket and struck it on the head of the deceased as a result of which the deceased received injuries and became unconscious. The appellant was thereafter caught and one bomb, one country made pistol and one live cartridge were recovered from his possession. The appellant and the deceased along with the recovered articles were taken to Police Station Kotwali where the first information report was lodged by Bisheshwar Singh Head Constable at 3.30 P. M. on the same day (16-6-1980) the distance of the Police Station from the place of occurrence being three furlongs. 3. The injuries of the appellant were examined by Dr. S. Mehrotra (PW 7) at 3.50 P. M. on the same day (16-6-1980) and the under mentioned injuries were found on his person: 1. Lacerated wound 2-1/2 cm x 2 cm x bone deep on tip of right thumb with partial amputation of terminal phalanges with dislocation. 2. Lacerated wound 6 cm x 2 cm x bone deep on base of right thumb with dislocation. 3. Lacerated wound 11 cm x cm x bone deep on inner side of right palm and index finger. 4. Amputation of tip of right index finger terminal phalange. 5. acerated wound 3 cm x 1 cm x bone deep inner side of right middle finger. 6. Amputation of terminal phalange dip of middle finger right hand. 7. Abrasion 4 cm x 1 cm on inner side of right ring finger, 8. 4. Amputation of tip of right index finger terminal phalange. 5. acerated wound 3 cm x 1 cm x bone deep inner side of right middle finger. 6. Amputation of terminal phalange dip of middle finger right hand. 7. Abrasion 4 cm x 1 cm on inner side of right ring finger, 8. Multiple abrasion on forehead and right side of face and part of neck right 19 cm x 16 cm area. 4. Kishan Kahar deceased died on 18-6-1980 as a result of the injuires received by him. The postmortem examination of the body of Kishan Kahar deceased was conducted by Dr. D. K. Saxena (PW 8) on 19-6-1980 at 4.30 P. M. and the under mentioned amtemortem injury was found on the body of the deceased i 1. Lacerated wound 4 cm x 3 cm x bone deep on left side of head 8 cm above left ear with fracture underneath. 5. On internal examination the left temporal bone was found to be fractured. The brain was found to be congested and clot was found in the left carebral cavity. 6. In the opinion of Dr. Saxena (PW 8) the injury found on the body of the deceased was sufficient in the ordinary course of nature to cause death. The prosecution examined five eye witnesses, namely. Raja Ram (PW 1), Chhiddu (PW 2), Constable Shyam Manohar (PW 3), Constable Brajesh Narain (PW 4) and Head Constable Shiv Nath (PW 5). 7. The appellant pleaded not guilty and denied having struck the head of the deceased with a bomb. He stated that some one else had thrown something as a result of which he received injury. He also denied the recovery of the bomb (Ext. 1), country made pistol (Ext. 2) and a live cartridge (Ext. 3) from his possession and attributed his implication in the case to misunderstanding on the part of the police. 8. The trial Court after considering the evidence on record came to the conclusion that the prosecution had succeeded in establishing the guilt of the appellant and convicted and sentenced him as mentioned earlier. Raja Ram (PW 1) and Chhiddu (PW 2) did not support the prosecution case regarding the participation of the appellant in the incident. Both of them were, thereafter cross-examined on behalf of the prosecution. Their evidence is, therefore, of no value. 9. Raja Ram (PW 1) and Chhiddu (PW 2) did not support the prosecution case regarding the participation of the appellant in the incident. Both of them were, thereafter cross-examined on behalf of the prosecution. Their evidence is, therefore, of no value. 9. Constable Shyam Manohar (PW 3), Constable Brajesh Narain (PW 4) and Head CONSTABLE Shiv Nath (PW 4) supported the prosecution case regarding the incident as mentioned earlier. Their evidence appears to be convincing as it is supported by the arrest of the appellant Immediately after the incident and the recovery of the bomb (Ext. 1), country mads pistol (Ext. 2) and a live cartridge (Ext. 3) from his possession and the fact that the appellant was taken to the Police Station immediately afterwards where the recovered articles were deposited. All these three witnesses are independent as there was no previous enmity between them and the appellant. Nothing has been brought out in their cross- examination to shake their credit. Their evidence is, therefore, reliable. 10. It was stated by Constable Shyam Manobar (PW 3), Constable Brajesh Narain (PW 4) and Head Constable Shiv Nath (PW 5) in their examination-in-chief that they saw the appellant and the deceased fighting with each other before the appellant took out a bomb from his packet and struck it on the head of the deceased. Their evidence, does not disclose how the fight started between the appellant and the deceased and who was the agressor. It is, however, obvious that the appellant did not have the intention of throwing a bomb at the deceased from the very beginning as he did not do so from a distance before they began to fight. It is noteworthy that the postmortem report shows that the deceased was about 25 years old whereas the injury report of the appellant shows that he was about 42 years old. By striking the head of the deceased with a bomb the appellant ' himself received a large number of injuries resulting in amputation of the tip of the right index finger and the amputation of the terminal phalanx dip of middle finger of the right hand. By striking the head of the deceased with a bomb the appellant ' himself received a large number of injuries resulting in amputation of the tip of the right index finger and the amputation of the terminal phalanx dip of middle finger of the right hand. Normally bombs are thrown by persons from a distance so that they do not receive any injury themselves The appellant must have known that by striking the head of the deceased with a bomb he was bound to receive injuries himself which may even have been fatal. It, therefore, appears that he must have apprehended grievous injury or even death by throtling at the hands of the deceased when he struck the head of the deceased with a bomb in desperation resulting in grievous injuries to himself. We are not prepared to accept the statement of Constable Shyam Manohar (PW 3) made in his cross-examination that the appellant and the deceased were merely slapping each other when the appellant took out a bomb from his pocket and struck the head of the deceased as it is difficult to believe that the appellant would have run the risk of causing grievous injuries to himself if the appellant and the deceased were merely slapping each other. In these circumstances the possibility of the appellant having acted in the excercise of the right of private defence by striking the head of the deceased with a bomb which he was carrying cannot be ruled out. He cannot, therefore, be held guilty under Section 302 IPC. The appellant is, however, guilty under Section 25 Arms Act and Section 5 of Indian Explosives Act with respect to the recovery of the bomb (Ext. 1), country made pistol (Ext. 2) and a live cartridge (Ext. 3) from his possession. The sentence of two years rigorous imprisonment awarded under these two sections is not excessive. This appeal is accordingly allowed in part. The conviction of the appellant under Section 302 IPC and the sentence of death awarded to him thereunder are set aside. His conviction under: section 25 of the Arms Act and Section 5 of Indian Explosives Act and the sentences awarded to him are upheld. Both the sentences shall run concurrently. 11. The reference made by the learned Judge for the confirmation of the sentence of death is rejected. 12. The appellant is in jail. His conviction under: section 25 of the Arms Act and Section 5 of Indian Explosives Act and the sentences awarded to him are upheld. Both the sentences shall run concurrently. 11. The reference made by the learned Judge for the confirmation of the sentence of death is rejected. 12. The appellant is in jail. He shall serve out the sentences awarded to him. Appeal partly allowed.