Judgment G. Malaviya, J. 1. The appellants in these two appeals were tried by the Vth Additional Sessions Judge, Hamirpur in Session Trial No. 248 of 1978. All of them were convicted under section 302 Indian Penal Code and were awarded life imprisonment against which this appeal has been preferred in the High Court. 2. On 25-6-1978 a First Information Report was lodged at Police station Panwari at 8.45 A.M. by one Ganga alleging that his son Roop Singh had been done to death by the appellants. It was alleged that about a year prior to the incident Roop Singh had misbehaved with the wife of Amar Chand accused. A panchayat was called where the panchas got a compromise effected between the parties. However the parties were harbouring ill will on account of the said incident. It was in this background that on the 24th August, 1978 at about 5 p.m. Roop Singh deceased had gone to the shop of Guljari Bania to purchase Biri and tobacco. When he did not return for about an hour Ganga the complainant, father of Koop Singh went to find him out. When he reached near the shop of Guljari he saw that Har Prasad with kulhari and the other- appellants with barchhis were causing injuries to his son inside the court-yard of the shop of Guljari. He and other persons challenged the assailants who after coming out from the shop" went towards their houses. His son Roop Singh had also wielded lathi on Sewa Ram appellant. When the complainant and other witnesses went near Roop Singh they found him dead. The assailants had left the axe and two towels near the dead body. Since while coming to lodge the report on the previous evening it rained heavily with the result that the Deolari river in between had over-flooded, he could not lodge the report in the previous evening and he had come to lodge the report after the water in the said river had receded. On the said report the case was registered against the accused persons and the investigation was taken up by the Sub-Inspector Lakhan Singh Parihar, PW 7. He went on the spot, made the necessary recoveries, prepared the inquest as also the site plan and sent the dead body for post mortem examination. He searched the accused but could not find them. He went on the spot, made the necessary recoveries, prepared the inquest as also the site plan and sent the dead body for post mortem examination. He searched the accused but could not find them. However the investigation was completed by S.I. Lalloo Singh, PW 8 who submitted the charge sheet whereafter the accused were committed to stand their trial before the court of Sessions. The accused had denied the charge and claimed to be tried. At the trial the prosecution examined PW 1 Ganga father of the deceased, PW 2 Kripal and PW 3 Man Mohan as witnesses of fact. The prosecution also examined Dr. P.N. Singh, who had conducted the post mortem examination on the body of the deceased on 26-6-1978 at 12 noon, apart from other formal witnesses. The doctor had found the following ante-mortem injuries on the person of the deceased :- "1. Multiple incised wounds on both sides of face in area of 11 cm x 12 cm total 9 in no. ranging from 3 cm x 1 cm x bone deep to 2 cm x 0.3 cm x bone deep blood clots present, fracture of lower jaw in the centre and Rt., Upper Jaw present. 2. Contused swelling 4 cm x all wound on back of head on left side near parietal eminence of left perietal bone present. Comminuted, clot present. 3. Incised wound 3 cm x 2 cm x brain deep on left side of back of head 6 cms. below Inj. No. 2 Brain matter coming out of left occipital bone. 4. Incised wound 8 cm x 4 cm x bone deep on Rt. side neck upper and middle part, Caroted vessels cut, blood clots present all around. 5. Incised wound 3 cm x 2 cm x bone deep on left side upper part neck, left lower jaw-parital present. 6. Multiple incised wound on left side of chest in area of 15 cm x 10 cm total 4 in no. each ranging from .05 cm x 0.3 cm x cavity deep to 3 cm x 2 cm x cavity deep, clot present. 7. Incised wound 1.5 cm x 0.3 cm x cavity deep on left side of abd. Walls 5 cm from midline and 13 cm above the umbilicus. 8. Incised wound 1 cm x 0.5 cm x cavity deep on left side back 10 cm from midline, clot present. 9. 7. Incised wound 1.5 cm x 0.3 cm x cavity deep on left side of abd. Walls 5 cm from midline and 13 cm above the umbilicus. 8. Incised wound 1 cm x 0.5 cm x cavity deep on left side back 10 cm from midline, clot present. 9. Incised wound 1 cm x 0.5 cm x muscle deep on Rt. thigh outer part 11 cms above the Rt. knee, clot present. As stated above the sessions Judge found the case made out against the appellants with the result that the appellants were convicted and have since preferred this appeal in the High Court. 3. The accused in their defence examined one Alakh Narain-Pharmacist to prove the bed head ticket of Sewa Ram showing that he had received an injury on his head; as also DW 2 Dr. S.N. Dikshit and DW 3 Dr. N.L. Khatolya who just testified about the said injury. Whereas Sewa Ram in his statement under section 313 CrPC had alleged that he was hit by the deceased by lathi and he became unconscious, the other accused stated that Roop Singh after striking a lathi at. Sew Ram, due to which his head had a lacerated wound, was trying to drag him inside Guljari's house and they attacked Roop Singh to save Sewa Ram. 4. We have heard Sri P.N. Misra learned counsel for the appellants and Sri Jagdish Tewari, learned State Counsel. Ganga PW 1 states that when his son Roop Singh did not return for about an hour then he went to search him. When he reached near the shop of Guljari he saw the four appellants striking his son with kulhari which was in the hands of Har Prasad and Barchhi which was in the hands of other accused persons. When challenged the assailants fled away. His son had also wielded a lathi on Sewa Ram. Roop Singh died due to said injuries. The assailants had left the axe the BENT of which had got broken. There also two small turbans-one of Har Prasad and the other of Sewa Ram. After entrusting the dead body to the chowkidar he went to the police station to lodge the report but as there was flood in river Keolari he could not cross it. In the morning he went through the water which was chest deep and dictated the report at the police station Panwari. After entrusting the dead body to the chowkidar he went to the police station to lodge the report but as there was flood in river Keolari he could not cross it. In the morning he went through the water which was chest deep and dictated the report at the police station Panwari. He gave out that his son Roop Singh had teased the wife of Amarchand accused for which a panchayat was called; Roop Singh had apologised but the assailants were harbouring ill will against Roop Singh since then. In the cross-examination he admitted that his house was at a distance of about 100 or 200 paces west from the place of Guljari. He also asserted in the cross-examination that Roop Singh had, struck lathi on Sewa Ram in the courtyard of Guljari and not in the verandah. He denied that he had given the following statement to the Investigation Officer :- "MANMOHAN TEWARI NE BATAYA THA KI MERE LADKE ROOP SINGH NE BHI SEWA RAM KE EK LATHI MART THT." He could not explain how this statement has" been recorded by the Investigation Officer. He also denied having made some other statement to the Investigating Officer. He further admitted that he did not know the quarrel had started between the parties and said that such witnesses who must have been present there from the very beginning would be knowing about the genesis of occurrence. He also admitted that he could not say how the kulhari had broken down. By the time he had reached there the kulhari had already broken. Ultimately he denied the suggestion that he was not present at the time of incident. 5. On the strength of the statement of these witnesses and his cross-examination learned counsel for the appellants argues that this witness in fact was not present at the time of the incident and he must have arrived immediately after the incident and as such it is difficult to rely upon his deposition. We have also considered this aspect and we also feel that in every probability this witness arrived belatedly when the mar-pit had concluded: and he lodged the report after the incident had been narrated to him. 6. PW 2 Kripal stated that on the date of the incident he was sitting at the Shop of Guljari at about 6 P.M. where Man Mohan PW 3 and Dal Chand were also sitting. 6. PW 2 Kripal stated that on the date of the incident he was sitting at the Shop of Guljari at about 6 P.M. where Man Mohan PW 3 and Dal Chand were also sitting. The aunt of Guljari was at the shop. Roop Singh came there and purchased biri and tobacco where after he stood at a distance of about 3 or 4 steps. Meanwhile accused Har Prasad armed with Kulahari and the other accused armed with spear emerged from their cattleyard. When Roop Singh saw them he coughed. Har Prasad said that the matter had been compromised and still Roop Singh was coughing at them. Thereupon Roop Singh deceased twisted his moustache and laughed showing as if he did not bother for them. Consequently Har Prasad exhorted his companions to thrash Roop Singh. Roop Singh fled inside Guljari's house. The assailants chased him. Meanwnile Roop Siugh's father Ganga arrived there. This witness and others also arrived at the verandah and shouted that the assailants were killing Roop Singh. Har Prasad with his axe and the others with their spears started hitting Roop Singh. Roop Singh was in the courtyard where" the assailants were beating him. Roop Singh also wielded a lathi in his defence which hit Sewa Ram. When they challenged the accused they went away towards their houses. They went near Roop Singh and found him dead. One broken axe and two turbans were lying in the courtyard which belonged to Har Prasad and Seva Ram respectively. Ganga had sent for the village chowkidar and went to lodge the report after entrusting the body to him. In the cross-examination this witness said that the platform (varandah) was outside the main gate in Guljari's shop-cum-residence. When Roop Singh had twisted his moustache he was outside the main gate. Roop Singh had not wielded lathi on Sewa Ram when he; twisted his moustache. However he denied that he nude the following statement to the Investigating officer under section 161 CrPC:- "Roop Singh twisted his moustache and wielded a lathy which hit Sewa Ram. The blood started coming from Sewa Ram's head." He could not explain how the Investigating Officer recorded this statement. However he denied that he nude the following statement to the Investigating officer under section 161 CrPC:- "Roop Singh twisted his moustache and wielded a lathy which hit Sewa Ram. The blood started coming from Sewa Ram's head." He could not explain how the Investigating Officer recorded this statement. This witness also denied having made the following statement to the Investigating Officer:- "On looking blood Har Prasad exhorted and all the four started hitting and chasing Roop Singh inside the shop." He also could not explain how the Investigating Officer had recorded this statement. He further denied in the cross-examination that no latbi was struck on the 'bent' of the axe. The 'bent' had broken down as it was rotten. He, however, admitted that 'bent' of the axe had been broken down after Sewa Ram had received lathi injuries. Ultimately he denied the suggestion that Roop Singh had first wielded lathy and the assailants then wielded their weapons on Roop Singh in their self defence. He also denied the suggestion that on account of pressure of pairokars of the complainant he had changed the statement which he had given to the Investigating Officer. Man Mohan PW 3 said that he was sitting on the platform of Guljari where. Kripal PW 2 and Lal Chand were also sitting with him. Roop Singh also arrived there. Meanwhile the four accused arrived there Har Prasad was having an axe and the other persons were having spears. When the accused were still at some distance Roop Singh laughed at them and coughed on which Har Prasad accused said that although he had apologised yet he was coughing. On this Roop Singh; twisted his moustache. Har Prasad then asked his companions to beat him. When the assailants rushed to beat Roop Singh, Roop Singh tried to escape inside Guljari's house, but the assailants chased him. This witness, Dal Chand and Kripal also went inside. Roop Singh was in the- verandah. Sewa Ram struck a bhala which hit Roop Singh. At that stage Ganga father of Roop Singh arrived. Roop Singh fled inside the courtyard then the assailants started attacking him. Roop Singh wielded a lathy which hit Sewa Ram. Roop Singh fell down. When they and Ganga challenged, the assailants left. They went near Roop Singh who was dead. They found Har Prasad's broken axe and turban of Har Prasad and Sewa Ram lying there. Roop Singh fled inside the courtyard then the assailants started attacking him. Roop Singh wielded a lathy which hit Sewa Ram. Roop Singh fell down. When they and Ganga challenged, the assailants left. They went near Roop Singh who was dead. They found Har Prasad's broken axe and turban of Har Prasad and Sewa Ram lying there. After asking the village chowkidar to keep a watch of the body of his son Ganga went to lodge the report. In the cross-examination this witness pleaded ignorance whether he too was a witness with Roop Singh in the murder case of Ram Nath Lodhi. However the defence filed the copy of the First Information Report and the charge sheet from the record of Sessions Trial No. 154 to indicate that this witness along with Roop Singh was a witness in the murder case of Ram Nath Lodhi. In the cross-examination he denied that when Har Prasad told Roop Singh that even after begging forgiveness he was still twisting his moustache and was not feeling ashamed, then Roop Singh had struck a lathy. He could not explain how the following statement had been recorded by the Investigating Officer as his statement under section 161 CrPC:- "Roop Singh started twisting his moustache. Har Prasad said that even after begging foregiveness he was twisting his moustache on which Roop Singh wielded a lathy which hit the head of Sewa Ram". This witness also denied that any blood had come out of the head of Sewa Ram, whereafter Har Prasad on seeing the blood had exhorted his companions to strike at Roop Singh. However he again failed to explain how the following statement was recorded by the Investigating Officer in his statement under section 161 CrPC :- "The blood started coming out of the head of Sewa Ram. After seeing the blood Har Prasad exhorted his companions to kill the bastards." He also denied having made the following statement to the Investigating Officer :- "All the four armed with spear and axe and hitting went inside the shop in the court and." 7. On the strength of these statements learned counsel for the appellants has said that admittedly the deceased being a witness along with Man Mohan PW 3 in the murder case of Ram Nath Lodhi was a partisan witness. On the strength of these statements learned counsel for the appellants has said that admittedly the deceased being a witness along with Man Mohan PW 3 in the murder case of Ram Nath Lodhi was a partisan witness. Learned counsel also argues that Man Mohan PW 3 and Kripal PW 2 are chance witnesses as it is no where in the evidence that their residences were near the shop of Guljari and the prosecution has just shown them as witnesses by alleging that they had come to the shop of Guljari to purchase something. Learned counsel has also emphatically urged that both these witnesses had clearly asserted before the Investigating Officer that on seeing the assailants, Roop Singh had started twisting his moustache and had hit Sewa Ram with a lathy with the result that blood had started coming from his head. Learned counsel also asserts that the witnesses had again told the Investigating Officer that when Har Prasad saw blood coming out of the head of Sewa Ram he exhorted his companions to strike at Roop Singh. Accordingly learned counsel asserts that there can not be any manner of doubt that not only Roop Singh had first humiliated -the appellants outside the shop of Guljari but had also given a lathy blow on Sewa Ram merely on Har Prasad asking him why he was still feeling not repentant for a deed for which he had begged apology earlier in the panchayat. Although we are not inclined to agree with the submission of learned counsel for the appellants that these witnesses were chance witnesses and as such their presence on the spot is doubtful yet we have no manner of doubt in our mind that these witnesses for one reason or the other have tried to change their statements at the stage of trial. It is noteworthy that even in the First Information Report it had been simply mentioned that Roop Singh had wielded a lathy on Sewa Ram. These witnesses had also initially in their statements had said that it was outside the shop of Guljari that the assailants had protested Roop Singh's laughing and taunting at them and Roop Singh had first given a lathy blow to Sewa Ram. These witnesses had also initially in their statements had said that it was outside the shop of Guljari that the assailants had protested Roop Singh's laughing and taunting at them and Roop Singh had first given a lathy blow to Sewa Ram. In this background we are in agreement with learned counsel for the appellants that the appellants could apprehend that unless they stopped Roop Singh from striking with his lathy which he was holding in his hand, Roop Singh could have continued to assault which could even cause death of Sewa Ram. Accordingly the companions of Sewa Ram could very well have caused injuries to Roop Singh to save Sewa Ram from any further assault at the hands of Roop Singh. 8. However the question remains whether the injuries caused by the assailants were sufficient to prevent Roop Singh to cause injuries to Sewa Ram or whether the injuries caused by them were excessive. In this connection it would be relevant to examine the injuries caused to deceased Roop Singh as also the statement of PW 4 Dr. P.N. Singh who had conducted the post mortem examination on the body of Roop Singh. Dr. P.N. Singh in his deposition had clearly stated that injury nos. 1, 3, 4, 5 and 6 on the deceased could be caused by an exe. Injury no. 7, 8 and 9 could be caused by spear and injury no. 2 could be caused by a fall. In this connection it would be relevant to point out that injuries 7, 8 and 9 were incised wounds 1.5 cm x 0.3 cm x 1 cm x 0.5 cm and 1 cm x 0.5 cm cavity deep or muscle deep. Whereas injury no. 7 was on the left side of abdominal wall, injury no. 8 was on the back of the left side and injury no. 9 was on the right thigh. However there were three persons armed with spears. As such it can be safely inferred that Sewa Ram, Amar Chand and Har Govind appellants wielded their spears only once., But there can be no manner of doubt that Har Prashad who was having a kulhari not only wielded it five times but continued to strike with it till the kulhari itself broke down. As a matter of fact since the bone inside injury no. As a matter of fact since the bone inside injury no. 2, the contused welling, was broken we can presume that even this injury was on account of seme blunt portion of axe. Consequently Har Prasad struck with his axe atleast five times or may be six times. In view of this statement of the doctor learned counsel for the appellants states that Sewa Ram, Amar Chand and Har Govind accused can not be blamed to have used their spear once only as they had found the deceased Roop Singh in the mood to assault with his lathy and these persons could cause this much of injury in the right of defending Sewa Ram accused. However learned counsel for the appellants could not explain to us how could Har Prasad be justified in making repeated blows with his kulhari at Roop Singh till his kulhari had broken down. We can presume that after one or two blows Roop Singh must have fallen down on the ground. The submission of learned counsel for the appellants that he must have lost self control and for that reason could not be held guilty is not acceptable. 9. However Sri Jagdish Tewari learned State counsel strenuously argued that the prosecution evidence as recorded by the court indicates that the assailants had chased Roop Singh inside the courtyard of the shop and had then started assaulting him. His contention is that even if it may be argued that Roop Singh had wielded his lathy without any real provocation which had hit Sewa Ram yet since he started running inside the courtyard, the right of private defence, if available at the initial stage, ceased to be available to the accused persons and hence the only offence commuted by the accused was the murder simplicito of Roop Singh. 10. We have given our anxious consideration to this argument of learned State Counsel but are unable to accept the same Once Roop Singh had given a lathy blow to one of the accused persons the appellants could validly harbour an apprehension that he was in a defiant mood and could even cause the death of some of the appellants. Consequently all the appellants would be perfectly justified in reacting and immediately causing some injury to Roop Singh so that he may not continue with his assault. As. Consequently all the appellants would be perfectly justified in reacting and immediately causing some injury to Roop Singh so that he may not continue with his assault. As. discussed earlier we are not prepared to accept the prosecution case that Roop Singh had wielded his lathy inside the courtyard but have found that it was he, who had actually started assault in front of the main gate of Guljari's house-cum-shop. Since the witnesses have made an improvement in their statements we do not find it safe to place implicit reliance on the statement of these witnesses on the point that the appellants had caused injuries to Roop Singh only inside the courtyard. We can not rule-out the possibility that immediately after Sewa Ram accused was hit by a lathy by Roop Singh, the simultaneous reaction of the accused persons would be to hit Roop Singh with their weapons, ft is obvious that Roop Singh would have then fled inside the courtyard. However after Roop Singh started running away no more blows could be given to him. As the evidence stands, Har Prasad still chased Roop Singh inside the courtyard and continued to hit him with his axe till he fell down. Accordingly Har Prasad definitely exceeded the right of private defence by assaulting Roop Singh in the manner as has been mentioned above. Sri Jagdish Tewari learned State counsel also argued that the very fact that all the appellants were armed shows that the appellants had come with an intention to kill Roop Singh. Apart from the fact that there is no such evidence lead by the prosecution in this case, we can take judicial notice of this fact that in the land of 'Alha' and 'Udal' viz. Hamirpur it is customary for every male member of the society to move about with some weapon in his' hand. Accordingly merely because the appellants were carrying some arms at the time of the incident it cannot necessarily mean that they had come out with an intention to kill Roop Singh. 11. The ultimate result is that we find that on account of an assnult made by Roop Singh deceased by his lathy on Sewa Ram the appellants had the right to defend the person of Sewa Ram and lawfully cause injuries to Roop Singh with their respective weapons. 11. The ultimate result is that we find that on account of an assnult made by Roop Singh deceased by his lathy on Sewa Ram the appellants had the right to defend the person of Sewa Ram and lawfully cause injuries to Roop Singh with their respective weapons. However Har Prasad has exceeded his right of private defence by chasing Roop Singh and giving him repeated blows of kulhari. Consequently whereas three other persons would not be guilty of any offence, Har Prasad would certainly be guilty of causing death of Roop Singh and would be liable to be convicted under section 304 Part I, IPC. We think a sentence of 5 years' rigorous imprisonment would be sufficient as Har Prasad had also been not only worked-up due to Roop Singh giving a lathy on his companion but had also enraged him by his unbecoming gestures by twisting his moustache and coughing at them. 12. The result is that Criminal Appeal No. 2814 of 1979 is allowed in toto. The conviction and sentence of Sewa Ram and Amar Chand are set aside. They are on bail. Their bail bonds are discharged. They need not surrender. Criminal Appeal No. 2669 of 1979 is allowed in part. Conviction and sentence of Har Govind alias Binda under section 302 Indian Penal Code is set aside, conviction of Har Prasad under section 302 Indian Penal Code is also set aside. He is however convicted under section 304 Part I Indian Penal Code and is sentenced to five years' rigorous imprisonment. Har Govind is on bail. His bail bonds are discharged. He need not surrender. Har Prasad is also on bail. He must surrender immediately to serve out the sentence. Appeal allowed.