JUDGMENT - A.A. DESAI, J.:---The Additional Sessions Judge, Amravati recorded a finding of conviction against the appellant-original Accused No. 1 for the offence punishable under section 302 of the Indian Penal Code for having, on 26-4-1986 at about 8.30 p.m. in village Gopalpur, committed murder of Pundlikrao Mahinge by inflicting injuries with the aid of spear (Article 1 and 9) and then rejected his plea of right of private defence. 2. Involvement of the accused in the incident of assault is not in dispute. The question is whether he is guilty of culpable homicide amounting to murder, or acted within the or exceeded in exercise of the right of private defence. Before scrutiny of evidence as regards the incident of assault, we propose to mention certain predominant features of the prosecution case. A) The appellant-accused in his report Exhibit-37, as regards the incident, referred to Bhaurao as one of the persons who came with deceased Pundlikrao to his house. Baburao is a brother-in-law of Pundlikrao. P.W. 2 Suman daughter of deceased, went to Police Station, Walgaon to lodge report (Exhibit 11) with said Baburao. She therein specifically made a mention of enmity between Baburao and the accused. Sahebrao. P.W. 17 Investigating Officer admitted that P.W. 2 Suman stated before him that her report was according to what she has seen and heard. B) In the report Exhibit 11 and Exhbit 36 (Prescribed Form), the date of incident as recorded is 24-4-1986, whereas in discharge application (Exhibit 54), it is mentioned as 25-4-1986. C) P.W. 2 Suman claims that she has lodged F.I.R. Ex. 11 on the same day of incident i.e. 24-4-1986 at 11.30 p.m. However, Exhibit 11 and Exhibit 36 show the date and time of reporting as 25-4-1986 at 11.30 p.m. P.W. 14 Police Constable Anandrao deposed that P.W. 2 Suman came to the police station for lodging the report on 25-4-1986 at about 11.00 p.m. D) Investigating Officer P.W. 17 Gore states that on 25-4-1986 at about 11.40 p.m., he reached to Police Station, Walgaon from Nagpur. He went to the spot at mid-night. Exhibit 20 panchnama of spot of occurrence, Exhibit 21 Inquest and Exhibit 22 seizure shown to have been recorded on 26-4-1986 between 6.30 to 8.30 a.m. Body of the deceased was thereafter sent for post-mortem to Amravati. He went to the spot at mid-night. Exhibit 20 panchnama of spot of occurrence, Exhibit 21 Inquest and Exhibit 22 seizure shown to have been recorded on 26-4-1986 between 6.30 to 8.30 a.m. Body of the deceased was thereafter sent for post-mortem to Amravati. P.W. 17 states that he recorded the police statements of the prosecution witnesses on 26-4-1986 between the same period i.e. 6.30 to 8.30. There appears to be mistake. Exhs. 20, 21 and 22 seem to have been recorded on 25-4-1986 and not on 26-4-1986 as mentioned therein. E) Undisputedly, about 50 to 100 persons have witnessed the incident. Eye witnesses, as examined, are related to deceased Pundlikrao as P.W. 2 Suman (Daughter), P.W. 3 Tulsabai (widow), P.W. 4 Bandu (son), P.W. 6 Balu (son), P.W. 7 (brother-in-law). They have named other persons who have witnessed the incident including Police Patil Ganesh Mahalle (P.W. 9). Ganesh Mahalle has however been examined as a panch on Seizure Memo Ex. 24. P.W. 17 Gore recorded the statements of the witnesses on 26-4-1986/27-4-1986/12-5-1986 and 20-5-1986. However, the prosecution has not examined any independent witness, though available. F) It is borne on record that after cremation of deceased on 25-4-1986, the prosecution witnesses assembled and held deliberations under the guidance of P.W. 7 Deorao as to how to narrate the incident of assault. After due deliberations, they tendered police statements on 26-4-1986. They could avail the opportunity since their statements were not recorded on 25-4-1986 after the body was sent to post mortem. There is no explanation for the delay. G) Deceased Pundlik, prosecution witnesses and accused persons are of the same community. There has been a die-hard traditional enmity between them. Accused No. 1. Sahebrao was prosecuted for the offence of theft on the complaint of deceased Pundlikrao. Prosecution witnesses, admittedly, are partisan, deeply interested and with an adverse disposition against the accused persons. H) Original accused No. 2 Pralhad-brother of the appellant has been implicated for the offence under section 302 with the aid of section 34 on the allegations that, at the time of incident, he gave a stick blow on the back of deceased. The learned Judge considered this aspect in paras 35 to 40 of the impugned judgment, and recorded that the evidence in this regard is completely discrepant and totally inconvincing. Moreover, the same is falsified by medical evidence of P.W. 11 Dr. Tayade. The learned Judge considered this aspect in paras 35 to 40 of the impugned judgment, and recorded that the evidence in this regard is completely discrepant and totally inconvincing. Moreover, the same is falsified by medical evidence of P.W. 11 Dr. Tayade. The learned Judge therefore recorded a finding of acquittal in favour of accused No. 2 Pralhad. Prosecution has not challenged the acquittal. I) The prosecution witnesses had also implicated original accused No. 3 Yashoda wife of the appellant on the allegation that she instigated accused Sahebrao by handing over the spear. Accused No. 3 Yashoda therefore was remanded to magisterial custody for a considerable period. She was subsequently discharged on the application of the Investigating Agency marked as Exhibit 54. This definitely suggests that the prosecution witnesses carried a tendency to implicate innocent persons. 3. Now, the incident of assault as unfold by P.W. 2 Suman in her substantive testimony is as thus : She alongwith her brother P.W. 4 Bandu went to Grampanchayat Office on the date of the incident to witness T.V. programme. While returning home, P.W. 4 Bandu was ahead. She saw one Janu @ Janrao beating Bandu. She therefore questioned Janrao as to why he is beating Bandu. Accused No. 1 Sahebrao who also witnessed the T.V. programme, came there. Accused No. 1 gave a push on her chest and she fell down. Accused No. 1 then ran to his house. This incident occurred in front of door of courtyard of accused No. 2 Pralhad. The deceased, on learning the incident, came from his house. Accused No. 2 Pralhad, at that time, was standing in front of his house. Deceased Pundlik then asked accused No. 2 as to why accused No. 1 assaulted P.W. 2 Suman and there was hot exchange of words between accused No. 2 and the deceased. Original Accused No. 3 Yashoda at that time was standing in front of the door of her house. After accused No. 1 entered in his house, accused Yashoda closed the house from inside. Inside the house, accused No. 1 shouted at Yashoda accused No. 3 for giving spear. Accused No. 3 gave the spear to accused No. 1. Accused No. 3 Yashoda then came on the road and closed the door of courtyard from outside. Accused No. 1 then climbed the common wall of courtyard and saw on the road. Inside the house, accused No. 1 shouted at Yashoda accused No. 3 for giving spear. Accused No. 3 gave the spear to accused No. 1. Accused No. 3 Yashoda then came on the road and closed the door of courtyard from outside. Accused No. 1 then climbed the common wall of courtyard and saw on the road. He then jumped inside the courtyard and then by giving kicks broke open one panel of the door. Accused No. 1 then came with spear on road. Accused No. 1 then gave blows on right and left ribs of deceased. P.W. 3 Tulsabai intervened. Accused No. 1 caused injury on her palm. Accused No. 2 gave a blow on the back of deceased with a stick. P.W. 6 Balu came there and helped the deceased to drink water. One Pandurang son-in-law of deceased came there. Accused ran after him with the spear in his hand. Pundlikrao died on the spot. 4. Her testimony badly suffers from a series of omissions amounting to contradictions and improvement. Portion underlined by us are some of the omissions. Each omission or contradiction independently may not be material. However, collectively taking together on the particular background, as discussed, they assume an importance. In cross-examination, P.W. 2 has stated that when there was hot exchange of words between accused No. 2 and deceased, accused Sahebrao gave a push to her chest and ran inside the house. It means the deceased was present at the time of initial incident. This version is substantially at variance with the claim as she has made in the examination-in-chief. Moreover, in F.I.R. Exhibit 11, she narrated that accused Sahebrao gave blows with spear on the stomach of deceased, whereas in substantive testimony, on right and left ribs. Ordinarily, this variation would be quite natural. But her venture to describe specific place of blow was a net result of tutoring by P.W. 7 Deorao. It would not be expedient to accept her words in their totality. 5. Other witnesses P.W. 3 Tulsabai, P.W. 4 Bandu, P.W. 6 Balu and P.W. 7 Deorao go on the same line. Their version is parrot like, obviously they tendered police statement after due deliberation. P.W. 3 Tulsabai asserts that before giving evidence, their police statements were read over to the witnesses and they were instructed to depose accordingly. 5. Other witnesses P.W. 3 Tulsabai, P.W. 4 Bandu, P.W. 6 Balu and P.W. 7 Deorao go on the same line. Their version is parrot like, obviously they tendered police statement after due deliberation. P.W. 3 Tulsabai asserts that before giving evidence, their police statements were read over to the witnesses and they were instructed to depose accordingly. P.W. Tulsabai has disowned the relationship with Bhaurao and P.W. 7 Deorao, whereas P.W. 7 Deorao is definite that the first wife of deceased Pundlikrao is a sister of the witness and Bhaurao. However, she cant be accepted in this regard. She has also admitted that from the road, she cannot see anything inside the house of accused. Claim of prosecution witnesses that Yashoda gave spear inside the house to accused Sahebrao is inconvincing. P.W. 4 Bandu states that the accused No. 1 Sahebrao inside his house was shouting for spear and was saying that he would kill someone. Not only this was the omission, but it was nobodys case that the accused wanted to kill someone. He has further stated that accused No. 2 also broke open the tin sheets of the door of his courtyard. This is the solitary statement of the witness and none has corroborated. P.W. 6 Balus police statement was recorded on 20-5-1986. There is no satisfactory explanation for the inordinate delay. He has stated that accused No. 2 Pralhad also climbed on the common wall. This was not the claim of any of the witnesses. P.W. 7 Deorao is a brother-in-law of deceased. This witness has not been referred to by anyone as a person present at the spot. The witnesses have shown definite tendency to improve and exaggerate. 6. The learned Judge discussed the evidence of prosecution witnesses in paras 16 to 34 and accepted their testimony as convincing. He therefore answered point No. 2 as to whether it is proved by the prosecution that such death (homicidal death of Pundlikrao) was caused by or in consequence of the act of accused No. 1 Sahebrao in the affirmative. The question is not as regards the responsibility of the accused No. 1 Sahebrao for inflicting the injury, resulting in homicidal death of Pundlikrao. The question for our examination is what were the circumstances as prevailing, which led to the attack on Pundlikrao. 7. The story of the incident of assault, as introduced is certainly quite unnatural. The question is not as regards the responsibility of the accused No. 1 Sahebrao for inflicting the injury, resulting in homicidal death of Pundlikrao. The question for our examination is what were the circumstances as prevailing, which led to the attack on Pundlikrao. 7. The story of the incident of assault, as introduced is certainly quite unnatural. It appears to have been tailored with a definite design. It raises a series of questions : (a) When the deceased and others came for making a simple querry as regards the incident with Suman, why accused Sahebrao felt the necessity of a spear? (b) When accused Sahebrao was himself inside the house, why he was making a demand of spear by raising shouts for Yashoda? (c) When accused climbed the common wall of a courtyard which is hardly 5 feet in height, why again he jumped inside the courtyard knowing full well that the door is closed from outside? (d) Why accused No. 3 Yashoda first closed the door of house from inside and then of the courtyard from outside when there was no untoward incident? 8. Now, the story as introduced by P.W. 2 Suman in F.I.R. Ex. 11 is thus : "While my younger brother Bandu was proceeding, he had involuntarily pushed Janu Vitiwale. Janu asked as to why he pushed him. One Bhanu came there. He asked in a rude manner to Bandu as to why he had pushed. While there was exchange of words going on, Sahebrao, Laxmanrao Vitiwale and his brother Pralhad Laxmanrao came over there. Thereafter, Sahebrao started, scolding my brother. Therefore, I asked Sahebrao as to why he was scolding him. Thereupon, Sahebrao pushed me down by pushing on my breast. Then, someone from the crowd reported the incident to the deceased that Sahebrao was beating Suman. Therefore, my father who had gone some distance ahead, came back and asked Sahebrao why he had put hands on girl. Thereupon, Sahebrao ordered his wife Yashoda to bring a spear from the house, whereupon his wife Yashoda brought a spear and handed over it to Sahebrao. Instantly, Sahebrao stabbed the said spear in the stomach of my father Pundlikrao." The story is substantially at variance with her testimony. The portion underlined is material contradiction in the substantive testimony. Thereupon, Sahebrao ordered his wife Yashoda to bring a spear from the house, whereupon his wife Yashoda brought a spear and handed over it to Sahebrao. Instantly, Sahebrao stabbed the said spear in the stomach of my father Pundlikrao." The story is substantially at variance with her testimony. The portion underlined is material contradiction in the substantive testimony. As per the test of the F.I.R., the entire incident took place on road and Sahebrao never went inside his house from the spot after pushing P.W. 2 Suman. Accused No. 3 Yashoda handed over spear to him on the spot. 9. The learned Judge considered the discrepancies in paras 22 to 25 of the impugned judgment. It is observed that the contradictions or omissions are quite natural and not material, since P.W. 2 Suman is a rustic, illiterate girl of 19 years of age and at the relevant time, she was under mental agony. The appreciation is erroneous particularly when the accused has set up a plea of right of private defence. Moreover in view of the peculiar feature as discussed, the witness was not entitled to such allowances. In view of the material omissions and contradiction, the claim of the prosecution that there was a hot exchange of words between the deceased and accused No. 2 and accused No. 1 shouted for spear, then climbed with spear on common wall, jumped inside, then by giving kicks to the door of the courtyard broke the panel, cannot be accepted. 10. Now, we proceed to examine the plea of right of private defence of the accused Sahebrao. He in written statement (Exh. 59) has stated that some quarrel was going on between Janrao and Bandu. Hence we went there. He tried to pacify Janrao, but P.W. 2 Suman was not listening. She was raising a dispute with a loud voice. He gave a push to Suman. P.W. 4 Bandu thereupon ran towards his house. He, accused Sahebrao, was standing at the door of his courtyard. He saw Bandu, Subhash, Parashram and Pundlikrao coming towards him in aggressive mood along with sticks. He thought they would beat him grievously, hence he closed the door of his courtyard from inside. He heard Pundlikrao saying that "drag out Sahebrao from his house" and they started giving kicks on the door of accused No. 1 and 2. He saw Bandu, Subhash, Parashram and Pundlikrao coming towards him in aggressive mood along with sticks. He thought they would beat him grievously, hence he closed the door of his courtyard from inside. He heard Pundlikrao saying that "drag out Sahebrao from his house" and they started giving kicks on the door of accused No. 1 and 2. He therefore apprehended criminal tresspass into his house and they would cause grievous hurt to him. Hence he picked up the spear in his hand to defend himself. Deceased Pundlikrao and others broke open the door and they tresspassed in house alongwith the sticks. He ran from there and was going out to save him, but Subhash and Parashram caught hold of him near the house of Pralhad. All of them wrongfully confined him. Pundlikrao was holding a Babhul stick. He started assaulting Sahebrao with stick. Pundlikrao wanted to give a blow on his head, but he obstructed it by his hand. Sahebrao apprehended death or grievous hurt. Hence in order to defend himself, he gave two blows to Pundlikrao. Accused Sahebrao also lodged report Exh. 37 on the date of the incident. He also produced the weapon of offence viz. the Spear (Article 1 and 9). Exh. 38 is the arrest panchnama. P.W. 18 Dr. Ashok Lande referred to two injuries : (i) Contusion 3 x 2 inches oblique in direction over postero lateral part of right elbow joint, (ii) contusion 1 x 1/2 inch over anterior aspect of lower part of left thigh. Exh. 57 is an injury report of the accused. 11. The learned Judge has examined the plea in paras 44 to 55 of the impugned judgment. He reached the conclusion that the plea is not probable and acceptable, since -- (A) Deliberations between the prosecution witnesses are not sufficient to discredit their testimony. (B) After stabbing - accused ran after Pandurang. Since couldnt accost him, he realised criminal consequences of his act and he therefore lodged the report. This conduct was not sufficient to protect him. (C) In Ex. 37 - Accused have not made a mention that deceased and others were armed with stick and deceased assaulted him. He had also not made a mention of apprehension. (D) Deceased at the time of assault was away from the door and was in retreating position. This conduct was not sufficient to protect him. (C) In Ex. 37 - Accused have not made a mention that deceased and others were armed with stick and deceased assaulted him. He had also not made a mention of apprehension. (D) Deceased at the time of assault was away from the door and was in retreating position. (E) Injuries sustained by accused possibly due to jumping from wall or while running after Pandurang as per the evidence of P.W. 18 Dr. Lande. (F) Accused No. 1 Sahebrao and Accused No. 2 Pralhad broke open the doors of their courtyard to create a circumstance. 12. We may observe at this stage that the approach of the learned Judge is per-se wrong. While dealing with the plea, he was over-possessed with voluminous evidence against the accused Sahebrao as a person assailant. He therefore fell in grave error, substantially and patently in recording the reasoning. He has no doubt made a reference to a cardinal principle that the right of private defence need not be proved beyond reasonable doubt, and to be tested on preponderance of probabilities. He has however not applied the principle while dealing with the plea. The Supreme Court in A.I.R. 1980 S.C. 660 (Yogendra Morarji v. The State of Gujarat)1, laid down six conditions essential to avail the right of private defence. They are as under : Firstly, there is no right of private defence against an act which is not in itself an offence under the Code; Secondly, the right commences as soon as - and not before - a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is conterminous with the duration of such apprehension. That is to say, right avails only against a danger imminent, present and real; Thirdly, it is defensive and not a punitive or retributive right. That is to say, right avails only against a danger imminent, present and real; Thirdly, it is defensive and not a punitive or retributive right. In other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened; Fourthly, the right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of section 100; Fifthly, there must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailant; Sixthly, the right being, in essence, a defensive right, does not accrue and avail where there is "time to have recourse to the protection of the public authorities". Bearing in mind these conditions, we take a review of the plea on the touchstone. 13. We revert back to the origin of incident. According to P.W. 4 Bandu, accused Sahebrao asked P.W. 2 Suman why she was talking so much and then he pushed Suman. In cross-examination, Suman admitted that she was merely pushed. Sahebrao apparently wanted to give an understanding to P.W. 2 Suman. P.W. 4 Bandu however informed his parents that Sahebrao gave a push on the chest of Suman. She fell down and was weeping. Similar is the version of P.W. 6 Balu, that Bandu (P.W. 4) told them that Sahebrao was beating Suman. This exaggerated version perhaps was introduced so as to justify prosecution witnesses to reach to the spot. Anyway message as reached, was completely distorted. It bound to make the deceased and prosecution witnesses furious. P.W. 3 Tulsabai stated that on hearing from Bandu, they became angry. Pundlik said that he would go there and ask about it to Sahebrao and to see him. She further stated that at the spot accused No. 2 Pralhad said that the quarrel was between children and Pundlik should forget about it. Then, Pundlik was in an angry mood and he was insisting on Pralhad to show him where Sahebrao was. Then, Yashodabai came there. Pundlikrao asked Yashoda about Sahebrao. Yashodabai closed the door from outside. Prosecution witnesses are consistent as regards closing of door by Yashoda firstly from inside and then from outside. Then, Pundlik was in an angry mood and he was insisting on Pralhad to show him where Sahebrao was. Then, Yashodabai came there. Pundlikrao asked Yashoda about Sahebrao. Yashodabai closed the door from outside. Prosecution witnesses are consistent as regards closing of door by Yashoda firstly from inside and then from outside. P.W. 4 Bandu states that Yashoda did so with a view to prevent quarrel and incident between accused and deceased : P.W. 3 Tulsabai has also deposed : "When we saw Sahebrao standing on the wall with spear in his hand, we apprehended that Sahebrao might assault Pundlik with a spear. Then she said : We did not actually feel that Sahebrao would cause Pundlik injury with his spear, therefore, we did not run away." Defence made suggestions that all persons came there armed with sticks to assault Sahebrao and deceased called Sahebrao to come out. No doubt they have denied this. However, it is apparent that the deceased and others who were furious, in agitating mood came there with a determination and were in search of Sahebrao. Their coming to the spot with lathis appears to be quite probable. Babul stick was also noticed in the spot panchnama. Accused Yashoda rightly sensed the seriousness of situation. In these circumstances, apprehension to the accused Sahebrao of grievous hurt was quite reasonable. The learned Judge has not adverted to this aspect. 14. Whether the accused had a reasonable apprehension is to be inferred from the set of circumstances as cropped up at the time of incident. Omitting to say so in Report Ex. 37 does not make the inference impermissible. P.W. 2 Suman has stated that she cannot give any reason as to why Pundlik and others did not go to their houses, when; Sahebrao was confined by his wife in the house, he was asking for spear, he threatened his wife or he stood on the wall with spear. P.W. 6 Balu has stated that we did not move away from the spot even after Sahebrao acted violently and came out with spear. We did not think even then that Sahebrao would assault Pundlikrao. When Sahebrao assaulted my father, we all stood there. We did not raise any cries. It is apparent from the testimony that the prosecution witnesses alongwith the deceased stood in front of the house with determination. We did not think even then that Sahebrao would assault Pundlikrao. When Sahebrao assaulted my father, we all stood there. We did not raise any cries. It is apparent from the testimony that the prosecution witnesses alongwith the deceased stood in front of the house with determination. None has claimed that the deceased was in retreating position, or when Sahebrao came out with the spear, made a move in a backward direction. The reasoning of the learned Judge that the deceased was in retreating position is not in consonance with the evidence on record. 15. As discussed, if the accused was in violent and agitating mood and more anxious to go outside, it would have been more convenient for him to jump on the road with spear, rather than inside the courtyard as deposed by the prosecution witnesses. Since he was on the wall by jumping outside on the road, he could have definitely avoided a venture of breaking open the door. The story that he jumped inside and then broke open the door appears to be concocted. Moreover, even as per the prosecution witnesses, accused No. 2 Pralhad was standing on the road in front of his house throughout. He had no reason to break open the door of his courtyard. As such, the breaking open of door by the prosecution witnesses appears to be more probable. 16. The story of jumping from a common wall is not convincing, reliable and probable as discussed earlier. Even otherwise, the wall was merely of 5 feet in height. The learned Judge has erred in accepting the same. Dr. Lande (P.W. 18) has definitely opined that the injuries sustained by accused Sahebrao could be caused by stick blow. No doubt, the Doctor gave probability that if man jumps on the ground, he is likely to receive abrasion also. However, the opinion in favour of the accused needs acceptance. Prosecution witnesses have not explained the injuries sustained by accused Sahebrao. It is therefore more probable that the injuries were caused to the accused by the deceased. The learned Judge failed to take a note of caution while accepting the version of the prosecution witnesses. He erred in observing that the deliberations between the prosecution witnesses are not sufficient to decredit their testimony. It ought to have been seen that they are not independent witnesses. They were with adverse disposition against the accused. The learned Judge failed to take a note of caution while accepting the version of the prosecution witnesses. He erred in observing that the deliberations between the prosecution witnesses are not sufficient to decredit their testimony. It ought to have been seen that they are not independent witnesses. They were with adverse disposition against the accused. Holding deliberation for tendering police statements have definite significance. Story of incident of assault as painted by them is with definite colour. Their venture to implicate Sahebrao as an aggressor therefore cannot be ruled out. Reasoning of the learned Judge that since accused could not accost Pandurang, he realised the criminal consequences and therefore, he lodged the report, is simply a sirmiser. The learned Judge has ignored that chasing Pandurang by Sahebrao being a material omission cannot be accepted. Moreover, as a normal conduct, on realising the criminal consequences, the accused would try to abscond. His immediately lodging the report and producing the weapon is a circumstance which supports the plea. 17. We hold the plea as set up by the appellant-accused is adequately substantiated. We record this conclusion on the following circumstances, which according to us, are probable: A) At the relevant time, there has been enormous amount of annoyance with the prosecution witnesses and particularly with deceased Pundlikrao. They could not be pacified even after the endeavour of accused No. 2 Pralhad, may be for the reason that they were already inimical with the accused person. B) Deceased and others reached the spot in aggressive and agitating mood and attempted to make forcible criminal tresspass by breaking open the door. C) They were also armed with sticks. D) They broke open the doors of courtyard of accused No. 1 and 2 both. E) Accused No. 1 sustained the injury at the hands of the deceased. F) Accused No. 1 was single, whereas the party of deceased was more in number. Danger as apprehended by the accused was patent and real. G) Accused Sahebrao did not act with pre-meditation. H) He immediately lodged the report of the incident and produced the weapon. 13. Mr. Habibuddin Ahmed, the learned Additional Public Prosecutor, made a submission that accused Sahebrao, in all gave three blows. First two landed on left and right ribs of the deceased, whereas the third one was on the palm of P.W. 3 Tulsabai. H) He immediately lodged the report of the incident and produced the weapon. 13. Mr. Habibuddin Ahmed, the learned Additional Public Prosecutor, made a submission that accused Sahebrao, in all gave three blows. First two landed on left and right ribs of the deceased, whereas the third one was on the palm of P.W. 3 Tulsabai. Subsequent blows, as inflicted, certainly could not be with an intention to prevent or ward-off the danger as apprehended. According to him, after the first blow, the deceased who might be carrying a stick was completely disarmed. In view of this, the accused who acted in his right of private defence, was under an obligation to modulate the further attack. The danger apprehended by him even if reasonable, completely disappeared after the first attack. Accused Sahebrao therefore, according to the submission of the learned A.P.P., exceeded in his right and therefore, liable to be convicted under section 304 Part-I I.P.C. 19. The question then for our consideration is as to when the accused is said to have acted beyond the extent of his right? The Supreme Court in a decision reported in A.I.R. 1963 S.C. 612, (Jai Dev Singh and another v. State of Punjab)2, has observed that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted. It is laid down : "In judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which caused a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the uppermost feeling in his mind would be to ward-off the danger and to save himself or his property, and so, he would naturally be anxious to strike a decisive blow in exercise of his right. It is no doubt true that in striking a decisive blow, he must not use more force than appears to be reasonably necessary. It is no doubt true that in striking a decisive blow, he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force is used than is necessary or than was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a Court room, for instance long after the incident has taken place. The means which a threatened person adopts or the force which he uses should not be weighed in golden scales." 20. As we have discussed earlier, when the accused No. 1 Sahebrao came out with spear in his hand, the party of the deceased did not tilt from their position. As per the defence, the accused tried to escape from the house, he was caught by the members of the party of the deceased and deceased gave him blow with stick. There is nothing on record that after the first blow, the members of the party of the deceased dispersed. As the accused had already sustained injuries, his excitement was writ large. His giving blows would be certainly with a motive to achieve definite result. In this background, whether the danger as apprehended was still subsisting? In this regard, as per the test laid down by the Supreme Court, the answer needs to be evaluated having regard to the state of mind of the accused. When the danger was immediate, imminent and real, the mind of the person who is placed in the situation is bound to flicker. In that set of circumstances, there could not be minute assessment of continuity or disappearance of danger. It is to be evaluated, according to the constrains of the accused. Decision which he took has immediately been reflected through Exhibit 37. Admittedly, he had no chance to improve or to articulate. Moreover, though he gave three blows, they were undisputedly in quick succession. There is nothing on record that subsequent blows inflicted by the accused were after an interval of time. As such, it is not permissible to say that after giving first blow, the accused was in a position to judge the situation and to reach to a conclusion that a danger as apprehended by him, is no more subsisting. There is nothing on record that subsequent blows inflicted by the accused were after an interval of time. As such, it is not permissible to say that after giving first blow, the accused was in a position to judge the situation and to reach to a conclusion that a danger as apprehended by him, is no more subsisting. Under the set of circumstances, we are not inclined to hold that the appellant-accused exceeded in exercising of his right of private defence. The impugned conviction and sentence therefore cannot be sustained. ORDER The appeal is allowed. The conviction and sentence as recorded by the Additional Sessions Judge, Amravati vide order dated 5th March 1987 in Sessions Case No. 176 of 1986 is hereby set aside. the appellant-accused is in Central Prison. He be set at liberty forthwith if not required in any other case. Appeal allowed.