JUDGMENT 1. - By his judgment dated 30.8.78 the learned Additional Sessions Judge, Sirohi convicted accused Narendra Kumar under section 302 and the other accused Fate Singh under section 302/34, I.P.C. and sentenced each of them to imprisonment for life with a fine of Rs. 200/-, in default of the payment of fine to further undergo four months' rigorous imprisonment. They have come up in appeal to challenge their conviction and sentence. 2. Briefly stated the case set up by the prosecution is that deceased Bhanwar Singh Rajput was the resident of village Kanpura district Pali and was Sarpanch the Grampanchayat. Accused Narendra Kumar is also a resident of that village There sprung up deep rooted enmity between them. The deceased victim filed a revenue suit for division of the agricultural lands against the accused appellant Narendra Kumar and got a receiver appointed. That further embittered the relation between them. The relations of the deceased victim with accused Fateh Singh and his father Sardar Singh co-accused acquitted were also strained. The accused persons, therefore, nursed ill-ill against Bhanwersingh and were in search of proper opportunity to finish him for ever. 3. At about 8.00 A.M. on 15.6.77, Bhanwar singh was going on a bicycle from his village to Shivganj. When he reached near the well of one Bherji Rao situate in Mauja Chandna, the accused-appellants came from the opposite direction. Accused Fateh Singh caught hold of the victim and accused Narendra Kumar inflicted a number of blows to him with a dagger. Thereafter the accused-appellant ran away. Bhanwer singh fell down. There was profuse bleeding from his wounds but he did not become unconscious. His cousin Ramsingh (PW 4) while going to Shivganj found Bhanwersingh lying injured with bleeding wounds. He asked Bhanwersingh as to what had happened to him. Bhanwersingh replied that the accused-appellants had stabbed him. Ramsingh put him on a bicycle to take him to the hospital. In the way near the bungalow of one Raichand, they found a Tonga. The victim was placed in that Tonga and was taken to, the hospital. He was immediately admitted for treatment. The victim asked Ram Singh to immediately go to his house and inform the members of his family. Ramsingh went back to Kanpura. The condition of Bhanwersingh had become precarious. The police at Shivgannj was immediately informed on telephone by a peon of the hospital. He was immediately admitted for treatment. The victim asked Ram Singh to immediately go to his house and inform the members of his family. Ramsingh went back to Kanpura. The condition of Bhanwersingh had become precarious. The police at Shivgannj was immediately informed on telephone by a peon of the hospital. The Station House Officer Bhikam Chand (PW 19) atonic reached the hospital and found the victim lying in the operation the after Dr. S. P. Purohit (P. W 10) - Medical Officer In charge of the hospital was attending him. The Investigating Officer asked the doctor whether Bhanwer Singh was in a fit condition to give statement. The doctor expressed the opinion that the victim was in a fit state to give the statement. Thereafter the statement of victim Bhanwer singh was recorded by the Investigating Officer. It was attested by Dr. Purohit. The statement recorded is Ex. P. 11. The injuries of the victim proved latal and he breathed his last at about 10.30 A. M. The police registered a case and proceeded with investigation. The postmortem examination of the victim's dead body vas conducted at about 1.00 P.M. on the same day by Dr. Purohit. He found the following injuries on the victim's dead body :External (1) Punctured wound 3/4" x 1/2 x 2" on left third inter eostal space of chest wall mid clavicular line. (2) Punctured wound 3/4" x 1/2" x 11/2" on 7th inter costal space of left side of the chest in mid axillary line. (3) Punctured wound 3/4" x 1/2" x 2" on 7th inter costal space of left side of chest in mid clavicular line. (4) Punctured wound 3/4" x 1/2" x 11/2" on left iliac fossa (abdomen). (5) Incised wound 1" x 1/2" x 3/4" on middle of superior border of right scapula. (6) Incised wound 1" x 1/2" x 1" on inferior angle of right scapula. (7) Incised wound 3/4"x 1/2"x 1/2" on dorsum of left hand, 1/2" below the left ring finger vertically. (8) Incised wound 1/2"x 1/2"x1/2" on dorsum of left hand on web space of thumb. (9) Incised wound 3/4"x2/4"x1/2", 11/2'" posterior to thyroid cartilage on the left side transversal. (10) Incised wound 3/4"x 1/2" x 1/2" on left mostoid process. (11) Incised wound 1/2"x 1/4"x 1/4' on right side of back of neck at the level of 6th cervical vertebrae. (8) Incised wound 1/2"x 1/2"x1/2" on dorsum of left hand on web space of thumb. (9) Incised wound 3/4"x2/4"x1/2", 11/2'" posterior to thyroid cartilage on the left side transversal. (10) Incised wound 3/4"x 1/2" x 1/2" on left mostoid process. (11) Incised wound 1/2"x 1/4"x 1/4' on right side of back of neck at the level of 6th cervical vertebrae. (12) Incised wound 1"x 1/2"x 3/4" on left 9th intercostal space middle of posterior side of chest wall. Internal (1) Injury No. 1 causing (1) 1/2"x 1/2" incised wound in pleurae, (2) 1/2"x 1/2"x 1/2" inside wound in upper lobe of left lung. (2) Injury No. 2-causing injury to chest wall (3) Injury No. 3-causing (1) incised wound 1/2"x 1/2" on superior border. of left diaphragm, (2) 1/2"x 1/2" incised wound in fundus of stomach causing perforation. (4) Injury No. 4-causing 1/2" x 1/2" incised wound in peritoneum at left ilk fossa. In the opinion of Dr. Purohit, the cause of death was hemorrhage and by cope. He was also of the apinion that injuries No. 1 and 3 (external) were sufficient in the ordinary course of nature to cause the death, both collectively as well s individually. The report prepared by him is Ex.P 12. The site was inspected by the Investigating Officer and blood-smeared earth was seized and sealed from there. To other articles like turban of the victim etc. were also seized and sealed. The accused appellants were arrested and in consequence of their disclosure statements, their blood stained clothes as well as the dagger used in the commission of the offence were recovered The articles were sent for chemical examination. On examination, the clothes of the accused-appellants and the dagger were found stained with human blood. On the completion of investigation, the police presented a challan against the accused appellants and Sardar singh in the Court of Judicial Magistrate, Sirohi, who in his turn committed the case for trial to the Court of Sessions. The learned Addition Sessions Judge framed a charge under section 302 against accused Narendra Kuraaf under Section 302/34 against accused Fatehsingh and under section 302/109, I. P CI against accused Sardar Singh. The accused pleaded not guilty and faced the trial Accused Fatehsingh denied his presence on the place of occurrence and advance the plea of alibi. According to him, on the day of occurrence he was ( Jodhpur. The accused pleaded not guilty and faced the trial Accused Fatehsingh denied his presence on the place of occurrence and advance the plea of alibi. According to him, on the day of occurrence he was ( Jodhpur. Accused Sardarsingh took the plea that due to his strained relations with the family of the deceased-victim, he was falsely implicated. Accused Narendi Kumar admitted his presence on the place of occurrence. He also admitted that had stabbed the victim. He put forward the plea of right of private defence person. In his statement under section 313, Cr. P.C. he stated that he was going from Shivganj to his village Kanpura. In the way the deceased-victim met him an made an assault on him. They grappled with each other. The victim who ha knife with him, wanted to strike blows to him (accused). He snatched away knife and in order to defend himself and ward off further attack, he struck bio1 with it to the victim. During trial, the prosecution examined 23 witnesses and filed some documents. In defence, the accused examined 11 witnesses and some documents were also filed. On the conclusion of trial, the learned Additional Sessions Jud found no incriminating evidence against accused Sardar singh. He was, therefor acquitted. The learned Sessions Judge found no merit in the defence plea of accused Narendra Kumar and Fateh Singh. The charges were held duly established again them. The accused-appellants were consequently convicted and sentenced as mentioned at the very out-set. Aggrieved against their conviction and sentence, to have taken this appeal. 4. We have heard the learned counsel appearing for the accused-appellants and the learned Public Prosecutor. We have also carefully gone through the recti and the learned Public Prosecutor of the case. 5. Before proceeding further, it would be useful to briefly see the differs sets of evidence on which the conviction was made. These sets of evidence are (1) direct evidence of PW 5 Chhoga who had seen the occurrence, dying declaration of victim Bhanwarsiagh, both oral and written. The oral dying declarations made before PW 4 Ramsingh and the written dying declaration is Ex. P, 11 record by the Investigating Officer PW 19 Bhikamchand in the presence of Dr. Purohit (P.W. 10), (3) extrajudicial confessions by the accused-appellants made before the acquitted accused Sardarsingh. The oral dying declarations made before PW 4 Ramsingh and the written dying declaration is Ex. P, 11 record by the Investigating Officer PW 19 Bhikamchand in the presence of Dr. Purohit (P.W. 10), (3) extrajudicial confessions by the accused-appellants made before the acquitted accused Sardarsingh. The witnesses speaking about these confessions are PW 1 Daliya and PW 17 Phooliya, (4) recovery of blood stained clothes of the accused-appellants and of the dagger made in consequence of their disclosure statements and (5) the strong motive which the accused had to finish the victim. 6. Shri M. L. Garg, learned counsel for accused Narendra Kumar vehemently contended that the court below gravely erred in not accepting and allowing the plea of the right of private defence. It was argued that it was not at all necessary that accused Narendra Kumar should have received some injuries on his body before he inflicted the knife's injuries to the victim. It was argued that Narendra Kumar was first assaulted by the victim both of them grappled with each other. It was the victim who had a knife and wanted to strike the accused with it. The knife slipped from the hand of the victim and he (accused Narendra Kumar) took it up. Apprehending grave danger to his life, the accused struck blows to the victim to defend himself. In the context of these circumstances, a right of private defence of person had accrued to accused Narendra Kumar. The learned Sessions Judge was much impressed by the fact that no injury was caused to accused Narendra Kumar in disallowing the plea. It was is argued that it is the apprehended, danger which matters and not the infliction of actual injury. Mr. Garg further argued that even if a right of private defence is not accepted to its full extent the case is covered by exception (2) of Section 300 I.P.C. 7. In reply, the learned Public Prosecutor supported the judgment of the Court below and submitted that the right of private defence was rightly denied by the court below. It was argued that the direct testimony of the ocular witness Chhoga (P. W. 5) was accepted as true by the trial court. This witness, who is an independent person, has clearly stated that there was no grappling between the deceased-victim and accused Narendra Kumar. No injuries were found on the person of accused Narendra Kumar. It was argued that the direct testimony of the ocular witness Chhoga (P. W. 5) was accepted as true by the trial court. This witness, who is an independent person, has clearly stated that there was no grappling between the deceased-victim and accused Narendra Kumar. No injuries were found on the person of accused Narendra Kumar. His conduct in concealing his blood-smeared clothes and dagger speaks heavily against him. It was also submitted that the accused adduced no evidence to establish his plea of the right of private defence. 8. We have taken the respective submissions into consideration. The question which arises for decision is whether a right of private defence of person was available to the accused. Section 96, I.P.C. lays down that nothing is an offence which is done in the exercise of the right of private defence. Section 100 permits the causing of death if the accused is assaulted and the assault `reasonable caused the apprehension' that death or grievous hurt will be caused to him as the consequence of the assault. This section, thus, speaks of reasonable apprehension of death or grievous hurt. We agree with the learned counsel that it is the apprehension of danger to the body which matters in deciding the question of right of private defence of person and it is not at all necessary that the actual injuries should be first sustained by the accused. But the essential question is that there must be reasonable apprehension of death or grievous hurt to the accused. We are also quite aware that in order to establish the pica of private defence, the accused is not required to call evidence and he can well establish it by reference to circumstances. Transpiring from the prosecution evidence itself. In determining the question of private defence, one has to consider all the surrounding circumstances arising in a given case. 9. In the instant case, the accused has adduced no evidence in order to make out his plea of private defence of person. There is nothing in the prosecution evidence to suggest that the accused inflicted the blows to the victim in order to save himself. 9. In the instant case, the accused has adduced no evidence in order to make out his plea of private defence of person. There is nothing in the prosecution evidence to suggest that the accused inflicted the blows to the victim in order to save himself. There is again no material to point out that the deceased victim made an assault on accused Narendra Kumar or the former acted in a manner which gave rise to a reasonable apprehension that he would cause the death at least grievous hurt to the latter. In fact, there is nothing on the record except the bald statement of the accused under section 313, Cr.P.C. to made out the plea of private defence. The victim was going on a bicycle absolutely unarmed. He was, therefore unprepared for an attack. Unpreparedness for attack is proof of non-aggressiveness. 10. Then there are certain striking features which completely demolish the plea of private defence. According to accused Narendra Kumar, he and the victim grappled with each other. It was the victim who had a knife. When there was grappling and the victim had a knife or dagger with him, it is expected that some injuries however, insignificant it may be, must have been caused to accused Narendra Kumar but no injury was caused to him. The absence of injury on the bod) of the accused suggests that the deceased was unarmed and that the accused was the aggressor. The dagger which was used in the commission of the murder of the victim was taken away be accused Narendra Kumar and it was recovered in consequence of his disclosure statement. If the victim was the aggressor, there was no occasion for accused Narendra Kumar to run away with the dagger. He ran away taking the dagger with him which suggests that he had a guilty mind and was conscious that it was he who put the victim to the death. The right of private defence is a defensive right and is not available to an aggressor. Accused Narendra Kumar made an extra judicial confession before acquitted accused Sardarsingh, Accordingto P.W 1 Daliya and according to P.W. 17 Phooliya, he and the co-accused Fatehsingh after committing the offence straightway went to Sardarsingh, and told him that they had completed the task entrusted to them. Accused Narendra Kumar made an extra judicial confession before acquitted accused Sardarsingh, Accordingto P.W 1 Daliya and according to P.W. 17 Phooliya, he and the co-accused Fatehsingh after committing the offence straightway went to Sardarsingh, and told him that they had completed the task entrusted to them. Had accused by Narendra Kumar acted in self defence he would have never made such a statement before accused Sardar Singh. The plea of right of private defence cannot be based on surmises and speculations. There must be some material to establish the circumstance which necessitated the exercise of such a right. The right of private defence is not to be assumed or presumed. On a careful scrutiny of the material on record, we are not persuaded to hold that accused Narendra Kumar acted in self defence. 11. Mr. Garg also made a strenuous effort t to bring the case within exception (2) of Section 300, I.P.C. and tried to build up an argument that it is a case of the excessive exercise of the right of private defence of person. Reliance in support of the contention was placed on (1) Surajbhan v. The State of Rajasthan, (1970) 20 I L R. (Rajasthan) 1012 . In Re Dontalagadu 1965 (2) Cr. L.J. 440 (3) . Dohariya v. State of Madhya Bharat, (A.I.R. 1956 M.B. 23) and (4) Dholiya Ravji v. Gujrat, 1961 (1) Cr. L.J. 813. All these authorities deal with the cases relating to excessive exercise of the right of private defence of person or property. But exception (2) applies only when the accused acted in self defence. If no right of private defence was available to the accused, no question of the excessive exercise of that right arises. We have held above that no right of private defence of person was available to accused Narendra Kumar. As such the authorities quoted above render ' no help to him. 12. There is no force in the appeal of accused Narendra Kumar. He was rightly convicted under section 302, I. P.C. No interference in his case is called for. 13. We shall next take up the contentions of Shri M N. Singhvi learned counsel appearing for accused-appellant Fateh Singh. It was contended that the conviction of accused Fateh Singh is wholly erroneous and bad. He was rightly convicted under section 302, I. P.C. No interference in his case is called for. 13. We shall next take up the contentions of Shri M N. Singhvi learned counsel appearing for accused-appellant Fateh Singh. It was contended that the conviction of accused Fateh Singh is wholly erroneous and bad. It was argued that according to prosecution he caught hold of the victim and accused Narendra Kumar inflicted blow s to him with a dagger. Accused Fatehsingh continued to hold the victim so long accused Narendra Kumar was leading blows to him. The blows to the victim were Inflicted on head, neck, chest and abdomen. It was argued that in cast accused Fatehsingh continued to hold him for such a long time, it was expected that he would have also sustained some injuries on his person. The absence of injuries suggests that be did not hold the victim as alleged by the prosecution. Reliance it I support of the contention was placed on Rao Bhagwanta v. the State of Maharashtra (Cr. L.R. (S.C.) 1978 page 555) and Bhagwan Bux Singh v. the State of Uttar Pradesh, (A.I.R. 1978 S.C. 34) . 14. In reply, the learned Public Prosecutor submitted that the murder of victim could not have taken place unless and until some-body held him tightly. Had the victim been not held tightly he would have put resistance. He could not put resistance because accused Fatehsingh continued to hold him so long the other accused Narendra Kumar inflicted blows to him. It was argued that the recovery of bloodstained clothes from accused Fatehsingh which he was wearing at the time of compassion of the offence, strongly suggests that he held the victim as suggested by the prosecution. 15. As mentioned at the very beginning, there are four sets of evidence speaking against both the appellants. P. W. 5 Chhoga, whose testimony has been accepted by the trial court is true, deposed that accused Fatehsingh caught hold of the victim and accused Narendra Kumar landed blows to him with a dagger. But he did not state that the accused Fatehsingh continued to hold the vicitim so long as blows were landed to him by accused Narendra Kumar. Likewise the dying declarations both oral and written show that accused Fatehsingh caught hold of the victim and the other accused Narendra Kumar inflicted blows to him. But he did not state that the accused Fatehsingh continued to hold the vicitim so long as blows were landed to him by accused Narendra Kumar. Likewise the dying declarations both oral and written show that accused Fatehsingh caught hold of the victim and the other accused Narendra Kumar inflicted blows to him. But no where in these dying declarations it has been stated that accused Fatehsingh continued to hold the victim for the whole time so long injuries were inflicted to him by accused Narendra Kumar. The written dying declaration Ex. P. 11 is the Ipissima verba' of the deceased-victim Bhanwersingh. Nothing has been mentioned there in by the declaration that accused Fatehsingh hold the victim for the whole time during which he was inflicted blows by - accused Narendra Kumar. We have gone through the judgment of the trial court and we do not find any finding there in that accused Fatehsingh continued to hold the victim throughout the time during which injuries were inflicted to him by accused Narendra Kumar. 16. In the context of these circumstances and the evidence available on record, we can only say that the two accused met the victim in the way. Accused Fatehsingh caught hold of the victim and the accused Narendra Kumar struck blows to him with a dagger. But we are unable to say accused Fatehsingh continued to hold the victim through-out so long for full time the injuries were inflicted to him by co-accused Narendra Kumar. 17. The contention of the learned counsel that accused Fatehsingh did not catch hold of the victim at the time of the occurrence has, thus, no substance and is hereby repelled. 18. It was next contended by Shri Singhvi that even if it is held that accused Fatehsingh caught hold of the victim, section 34. I.P.C. cannot be invoked to convict him under section 302. I.P.C. At the most, he can be convicted under i section 304 Part II, with the applicability of section 34, I.P.C, Reliance in support of the contention was placed on Bhabha Nand Sharma v. the State of Assam (1970 S.C.C. (Cri.) 602) . In this case one accused caught hold of the hands of the I deceased and the other two caused fatal injuries to him. It was held that section 34. In this case one accused caught hold of the hands of the I deceased and the other two caused fatal injuries to him. It was held that section 34. I.P.C, cannot be made applicable to the accused who merely caught hold of the I hands of the victim. We are tempted to quote the following observation of their lordship:- "As regards 'B' merely because he caught hold of the hands of the deceased, it is difficult to hold that he shared the common intention of the other two accused in causing the death of the deceased. His intention was to join in the commission of the acts by the other two with the intention of getting the deceased assaulted severely with the knowledge that such an assault in all probability under likelihood might result in his death. His participation in the crime, therefore, did not take him to the extent of sharing the common intention to cause murder. Applying the principle of law under section 38, I. P. C. the case of `B' can be separated from that of the other two accused and he could be found guilty only under section 304 Part II as he bad intentionally joined in the commission of an act with the knowledge that the assault on the deceased was likely to result in his death." We are, therefore, of the view that the conviction of accused Fatehsingh under section 302/34, I. P. C. is not proper and justified. His conviction should be there under section 304 Part II read with section 34, I. P. C. The age of accused Fatehsingh as referred by the trial court at the time of conviction was 1/ years. He could not he, therefore, sentenced to any punishment in view of the provisions of section 360 Cr. P. C. and section 6 of the Probation of Offenders' Act, 1958. 19. On behalf of accused Narendra Knmar, an application was submitted that his case be referred to the State Government under section 432, Cr, P. C. for remitting the sentence. It was argued that the accused has a wife and children. There is none to support them and they are virtually at the verge of starvation. In our opinion, it would be proper for the accused to move the State Government under section 432, Cr, P. C. for this purpose. 20. It was argued that the accused has a wife and children. There is none to support them and they are virtually at the verge of starvation. In our opinion, it would be proper for the accused to move the State Government under section 432, Cr, P. C. for this purpose. 20. In the result.: (1) The appeal of accused Narendra Kumar is dismissed. His conviction and sentence under section 302, IPC are maintained. (2) The appeal of accused Fatehsingh is, partly allowed. His conviction under section 302/34 is altered to that under section 304 Part II read with 34 IPC. The sentence awarded to him is set-aside and instead of sentencing him at once to any punishment we hereby direct that he be released on his entering into a bond of Rs. 8000/- together with two sureties in the amount of Rs. 4000/- each to the satisfaction of the remarried, Additional Sessions Judge, Sirohi to appear and receive sentence when called upon during a period of three years and in the mean time to keep the peace and be of good behaviour. Accused Fatehsingh is allowed one month's time to submit the aforesaid bonds. (3) The appeal is accordingly disposed of. Appeal of NK dismissed - Appeal of F Partly allowed. *******