JUDGMENT 1. - The accused-appellant Naina was convicted under s. 302, IPC, by the Sessions Judge Udaipur on January 29,1976 and sentenced to life imprisonment and a fine of Rs, 500/- and in default of payment of fine, to undergo further rigours imprisonment for a period of three months. 2. The accused-appellant has filed this appeal questioning the conviction and sentence. 3. The accused was having illicit relations with Smt. Ambavi (PW 8) wife of Pura (PW 1). One June 22,1975, Pura (PW 1) went to village Singada at the shop of Dalchand. The accused took away Smt. Ambavi (PW 8) in order to satisfy his sexual lust. The deceased Kika is the real brother of Pura (PW1). The deceased saw the accused taking away Smt: Ambavi (PWS). He did not like and took it ill. He followed the accused and Smt. Ambavi to find out as to for what purpose they had left and what they were doing. Both, the accused and Smt. Ambavi (PW 8) saw that they were being followed by Kika. Smt. Ambavi (PW 8) ran into the jungle and the accused came to his house. Kika followed the accused to his house. When Kika entered his house, the accused came armed with an axe. The accused infected one blow on his (Kika's) head, by which the latter fell down just near the door of his house. It has also been disclosed by the prosecution that Uda and Smt. Chatrudi (wife of Uda) caught the hands of Kika and the accused inflicted two blows with the sharp side of the axe on the neck of Kika as a result of which Kika died on the spot. Kika is said to have been armed with lathi at that time. Lacha(PW5) is the brother in law of the deceased Kika. Smt. Tamu (PW 2) is the sister of the deceased. Lacha (PW 5) and Smt. Tamu (PW 2) are said to be the eye-witnesses of the incident. Lacha (PW 5) ran away in the jungle on account of fear. Smt. Tamu (PW 2) came to her house and informed Smt. Kanki to PW 3), who is her sister-in-law and widow of Kika, about the occurrence. Smt. Tamu (PW 2) sent one Rama to bring Pura (PW 1). Pura (PW I) met Smt. Tamu (PW 2) and gathered the details of the incident from her. Smt. Tamu (PW 2) came to her house and informed Smt. Kanki to PW 3), who is her sister-in-law and widow of Kika, about the occurrence. Smt. Tamu (PW 2) sent one Rama to bring Pura (PW 1). Pura (PW I) met Smt. Tamu (PW 2) and gathered the details of the incident from her. He saw the dead body at the house of the accused. Thereafter, he went to the Police Station to lodge a report. He made the oral report, which was reduced to writing on the same day at 7.30 p.m. First Information Report has been marked as Ex. P.l. On the basis of the information, a case under S. 302, IPC was registered by the Police. The Police commenced investigation. The inquest report, site inspection memo and site plan were prepared and they have been marked as Exs. P 2, P3 and P 4 respectively. Seizure Memos (Ex P4 (duplicate to Ex. P6) are of blood stained earth, lathi and blood stained clothes. The post-mortem of the dead body was also conducted and the postmortem report is Ex. P7. The accused and Uda were arrested. The information given by the accused regarding the axe (Kulhari) is contained in Ex. P. 10.) In pursuance of the information, the blood stained axe was recovered at the instance of the accused vide recovery memo (Ex. P 11). A site plan (Ex. P. 12) of the house of the accused was also prepared. The seizure memos of the nails of the accused and Uda were also prepared and they have been marked as Exs. P 13 and P14 respectively. The blood stained soil, blood stained Lathi, blood stained clothes, nails of the accused and Uda and the blood stained axe were sent for chemical examination and serological test. The chemical examiner's report has been marked as Ex. P. 15 and the report of the serologist has been marked as Ex. P. 16. Serologists's report shows that the blood was human blood. The accused is said to have made an extra judicial confession. After completing the investigation, challan was filed against the accused Uda. The challan was filed in the court of Additional Judicial Magistrate of Udaipur, who by his order dated August 11, 1975 committed the accused & Uda to the court of Sessions Judge, Udaipur. The Sessions Judge framed charge against the accused under s. 302 IPC. After completing the investigation, challan was filed against the accused Uda. The challan was filed in the court of Additional Judicial Magistrate of Udaipur, who by his order dated August 11, 1975 committed the accused & Uda to the court of Sessions Judge, Udaipur. The Sessions Judge framed charge against the accused under s. 302 IPC. Uda was charged under s. 302 read with s. 34, IPC. They pleaded not guilty to the charges and claimed trial. The prosecution examined Pura (PW 1); Smt. Tamu (PW 2); Smt. Kanki (PW 3); Dr. Mahendra Singh (PW 4); Lachha (PW 5); Kalu (PW 6) Dolpuri (PW 7); Smt. Ambavi (PW 8); Mohan Singh (PW 9 , Chandra Prakash (PW 10); Datar Singh (PW 11) and Chandra Shekhar (PW 12'. The statements of the accused and Uda were recorded under s. 313, Cr. P.C. No. witnesses were examined in defence. The learned Sessions Judge acquitted Uda by giving him benefit of doubt. He, however, convicted the accused Naina under s. 302, IPC and sentenced him to life imprisonment and a fine of Rs. 500/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of three months. The judgment was rendered, as stated above, on January 29,1976. The accused Naina has filed this appeal challenging the conviction and sentence through the Superintendent of Jail, Udaipur on February 23,1976. 4. This court appointed Mr. I.J. Lodha, as Amicus Curiae. 5. We have heard Mr. I.J. Lodha, Amicus Curiae and Mr. M.D. Purohit, Public Prosecutor and have considered the record with requisite care. 6. The learned Sessions Judge formulated three points for his decision and recorded the following findings : (1) That Kika died due to the injuries received by him. (2) That the accused inflicted three blows with axe on the body of Kika. (3) That the prosecution has been successful in proving the offence under s. 302, IPC against the accused Naina, Beyond all manner of doubt, but offence under s. 302, IPC read with s. 34, IPC has not been brought home against Uda 7. Mr. (2) That the accused inflicted three blows with axe on the body of Kika. (3) That the prosecution has been successful in proving the offence under s. 302, IPC against the accused Naina, Beyond all manner of doubt, but offence under s. 302, IPC read with s. 34, IPC has not been brought home against Uda 7. Mr. I.J. Lodha, learned Amicus Curiae contended that the learned Sessions Judge has committed a serious error in holding the accused guilty under s 302, IPC on the testimony of Smt. Tamu (PW 2 on the ground that her testimony is corroborated by Smt. Kanki (PW 3); particularly when Lachha (PW 5) has not been believed as, according to him, he is an afterthought witness and Kalu (PW 6) and Dolpuri (PW 7) who have been produced by the prosecution for proving the extra-judicial confession made by the accused, have been found to be unreliable. 8. Dr. Mahendra Singh (PW 4) has conducted the post mortem on June 23, 1975 at 11 a.m. He deposed that he found three external injuries on the body of the deceased Kika, which are as under : "1. Incised wound on the head 3"x2"x4" situated on the right parietal region. The parietal bone was cut and the brain was coming out. 2. Incised wound 5" x 11/2"x l1/2" situated in the right side of the neck. Maggots were present in the wound. 3. Wound 41/2" x 41/2" x 3" in the back of the neck and second, third, 4th, 5th cervical vertebrae were broken along with the injury to the spinal cord." On internal examination, he amongst others, found incised wound in the scalp in the parietal region, which was 3" X2" X4" in size. The membrane of the brain were cut and the brain matter was coming out and 2nd, 3rd, 4th and 5th cervical vertebrae were broken and the spinal cord was found cut. He has further deposed that the injuries that were found on the body of the deceased Kika were antemortem and they were sufficient in the ordinary course of nature to cause death and that these injuries could have been caused by the axe Ex 7). The cause of death, according to the doctor was due to hemorrhage, shock associated with neurogenic shock due to injury to brain and spinal cord. The cause of death, according to the doctor was due to hemorrhage, shock associated with neurogenic shock due to injury to brain and spinal cord. From the aforesaid evidence, it is clear that Kika died of the injuries received by him. According to the prosecution, the eye witnesses are Smt, Tamu (P.W 2) and Lacha (P.W.5). The learned Sessions Judge, for the reasons stated by him in the judgment under appeal has observed that Lacha (P W.5) is afterthought witness. He did not place any reliance on his testimony. Learned Public Prosecutor did not contend that Lacha (P.W. 5) has wrongly been not relied upon by the learned Sessions Judge. We have read the statements of Smt. Tamu (P.W. 2) and Smt Kanki (P.W.3). Smt. Tamu (P.W.2) has stated that she was grazing her goats on `Mangara' and saw Smt. Ambavi (P.W.8 and the accused Naina going together and that her brother Kika was following them for keeping watch (Choksi). She has further deposed that when the accused saw her brother following them, he returned to his house and her sister in law (Bhabhi) hid herself in the jungle. When her brother Kika, came to his shed (thatched verandah-Deli), the accused came out from his house with an axe and inflicted a blow with it on her brother Kika's head. As a result of that, Kika fell on the ground and thereupon Uda caught his hands and the accused Naina gave two blows with axe on the neck of her brother. She has stated that she has seen all this. Smt. Ambavi (P W.8), wife of Pura (P.W.l) has supported Tamu (P.W.2) to this extent that she was being taken by the accused and both of them were followed by Kika, who was armed with a lathi and on seeing Kika, the accused went to wards his house and she also went away from that place Smt. Kanki (P.W.3) has stated that Smt. Tamu (P.W.2) who is her husband's sister, came weeping in the noon to her and told her that her brother Kika has been killed and that he was killed by the accused. Uda and Uda's wife. Smt. Tamu (P.W.2) is said to have told that the accused has inflicted blows with axe and Uda caught his hands. She has narrated the whole incident to her sister-in-law. Smt. Kanki (P W.3). Uda and Uda's wife. Smt. Tamu (P.W.2) is said to have told that the accused has inflicted blows with axe and Uda caught his hands. She has narrated the whole incident to her sister-in-law. Smt. Kanki (P W.3). She has corroborated her The name of Smt. Tamu (P.W.2) has also been disclosed in the First Information Report as an eye-witness, which was lodged on the same day. The dead body of Kika was found at the house of accused. Three blows were inflicted, one on the head and the other two on the neck of the deceased, as deposed by Smt. Tamu (P.W.2). Dr. Mahehdra Singh (P.W.4; has stated on external examination that there was incised wound on the head, one incised wound on the right side of the neck and one wound in the back of the neck. Dr. Mahendra Singh (P.W.4), has corroborated the testimony of Smt. Tamu (P.W.2) regarding the injuries which were found on the body of the deceased Kika. An argument was raised before the learned Sessions Judge that Smt. Tamu (P.W.2; could not have seen the occurrence as the trees and crops were standing in between her and the place of occurrence Smt, Tamu (P.W.2) has stated in the cross-examination that there were no trees in between the place where she was standing and the house, where the occurrence had taken place. To quote the witness : " eSa [kM+h Fkh ;gka ls ml okD;s ds edku ds chp esa HkkbZ o`{k ugh gSA ckys ij NksV&NksVs o`{k gS fdUrq eSa rks exjs ij [kM+h Fkh vr% os chp esa ugha vkrs gSA " The learned Sessions Judge has further stated that it was the month of June, 1975 and so maize crops could not obstruct the visibility as it was only its growing stage at that time. The learned Sessions Judge has placed reliance on the testimony of Smt. Tamu (P.W. 2) as it was corroborated by Smt. Kanki (P.W. 3). Having scrutinised the statement of Smt. Tamu (P.W.2) in the light of the statements of Smt. Kanki (P.W. 3) and Dr. The learned Sessions Judge has placed reliance on the testimony of Smt. Tamu (P.W. 2) as it was corroborated by Smt. Kanki (P.W. 3). Having scrutinised the statement of Smt. Tamu (P.W.2) in the light of the statements of Smt. Kanki (P.W. 3) and Dr. Mahendra Singh (P.W. 4) and the recovery of the axe at the instance of the accused, we do not find any compelling reason to take a different view from the one, taken by the learned Sessions Judge, when he held that the accused had inflicted three blows with axe on the body of Kika as Kika followed him and Smt. Ambavi (P.W. 8) when both of them were going towards the jungle and that the accused was having illicit relations with Smt. Ambavi (P.W. 8), who is the wife of Kika's brother Pura (P.W. 1). 9. It was next argued by the learned Amicus Curiae that the accused had inflicted three blows on the head and the neck of the deceased Kika with the axe as the deceased committed trespass on the accused's house. The accused has not taken the plea of right of private defence. It is settled that if on the evidence which has been brought on record, right of private defence, as envisaged by Ss. 98 and 100 to 106, IPC is established, it can be availed of even if no such plea is raised. The right of private defence is conferred by ss. 98 and 100 to 106, IPC but is it controlled and limited by s. 99, IPC. Section 99, IPC. is as under: "99. Acts against which there is no right of private defence. 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 acting in good faith under colour of his office, though that act may not be strictly justifiable by law. 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 the direction of public servant acting in good faith under colour of his office, justifiable by law. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Extent to which the right may be exercised. 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. Explanation I. A person is not deprived of the right of private defence against an act done, or attempted to be done, by public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant. Explanation 2. A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded." 10. We proceed to examine whether plea of right of private defence has been established or not. According to the learned Amicus Curiae, the deceased Kika had come to the house of the accused Naina armed with Lathi after following him and Smt. Ambavi (P.W. 8) This led to the reasonable apprehension to the accused that he (the deceased) had come to cause bodily harm to him and, thus, he inflicted blows with the axe on the head and neck of the deceased Kika in exercise of his right of private defence. When Kika was following the accused and Smt Ambavi going together in the jungle, he was having a lathi with him. On seeing that they being followed by Kika, the accused came to his house. Kika also came to the house of the accused armed with Lathi. There is nothing on the record to show that Kika made any attempt to cause any bodily harm to the accused. There is nothing to show that any threat was given by Kika. The accused inflicted a blow on the head of Kika by a sharp side of the axe by which he fell down on the ground and, thereafter again inflicted two blows on the neck with the axe causing three injuries on the body of the Kika as has been deposed by Dr. The accused inflicted a blow on the head of Kika by a sharp side of the axe by which he fell down on the ground and, thereafter again inflicted two blows on the neck with the axe causing three injuries on the body of the Kika as has been deposed by Dr. Mahendra Singh (P.W. 4). Kika died then and there. Having considered the nature of the injuries on the head and neck of Kika and the circumstances adverted to above, we are disposed to think that right of private defence has not been established. 11. The net result of the above discussion is that the accused, appellant Naina had inflicted three blows with axe on the head and neck of Kika as a result of which he died on the spot as these injuries were sufficient in the ordinary course of nature to cause death. The three blows which caused the injuries on the body of Kika, were not inflicted in exercise of the right of private defence. The learned Sessions Judge was right in holding the accused appellant Naina guilty for the offence under s. 302, IPC. 12. No sufficient ground has been made out so as to interfere with the order of conviction and sentence awarded to the accused-appellant. 13. The result is that there is no force in this appeal and it is, accordingly, dismissed.Appeal Dismissed. *******