D. M. DHARMADHIKARI, J. ( 1 ) THE present appellant Chhotey alias Shiv Kumar stands convicted under section 302 I. P. C. He was charged alongwith acquitted accused persons, Satya Narain and Munnibai, for the alleged offence under section 302 read with section 34 I. P. C. for committing murder of Chhammulal on L9. 1978 at Naka Chandrabadani, Lashkar, Gwalior. ( 2 ) ACCORDING to the prosecution case, acquitted accused Satya Narain came to the house of deceased Chammulal and there a wordy quarrel took place between them on the return of Sabble. The incident is said to have taken place in the chowk within the boundary wall of the house of the deceased. The case sought to be proved against the accused was that lathi blows were given by Satya Narain on the head of the deceased and accused Munnibai hit the deceased on his head by a big stone. ( 3 ) ACCORDING to the defence version the incident did not take place inside the house of the deceased but it took place in front of their house. It was denied by the accused that Munnibai was present on the spot. The plea of self defence was sought to be proved in the course of cross-examination of the witnesses as admittedly the accused Satya Narain had as many as seven injuries, some of whom were serious in nature, as per the injury report, Ex. D 6. In acquitting the other co-accused Satya Narain and Munnibai the learned trial Judge held that the incident did not take place in the Court-yard of the deceased and the evidence to that effect given by the prosecution witnesses is belied by Ex. p i, F. I. R. , as also Ex. p 2 the siteplan, prepared at the instance of P. W. 1 Tilluram and P. W. 2 Harisingh. The learned trial Judge also acquitted Munnibai holding that the prosecution utterly failed to prove that she had used any stone or boulder to hit the deceased. ( 4 ) THE learned trial Judge similarly acquitted accused Satya Narain and for that purpose disbelieved the testimony of P. W. 1 Tilluram. It is heir: that there is material contradiction in the version of the alleged assault by Satya Narain on the deceased as given by Harisingh, P. W. 2, and Tilluram, P. W. 1. ( 4 ) THE learned trial Judge similarly acquitted accused Satya Narain and for that purpose disbelieved the testimony of P. W. 1 Tilluram. It is heir: that there is material contradiction in the version of the alleged assault by Satya Narain on the deceased as given by Harisingh, P. W. 2, and Tilluram, P. W. 1. The medical evidence also did not corroborate the oral testimony as P. W. 1 Tilluram and P. W. 2 Harisingh did not sustain any injury. So far as the present appellant, Chholey, is concerned, the Court convicted him on the same evidence and although it was not believed with regard to the nature of assault alleged against the other accused. In convicting the appellant the plea of self defence sought to be proved from the evidence by the accused was rejected in paragraph 26 of the judgment of the trial Court in the following words: 26. It is clear that during the course of incident, accused Satya Narayan also sustained injuries. In the F. I. R. , this fact was suppressed by P. W. 1, Tilluram. During the course of the trial, when the prosecution witnesses were questioned regarding injuries sustained by Satya Narayan, then they offered this explanation that he sustained injuries, when P. W. 2 Harisingh on seeing accused persons Satya Narayan and Chhotey belabouring the deceased, came out of his house with a sword and whirled it around. In my opinion, the explanation offered does not appear to be convincing. As I have stated above and as is clear from the F. I. R. (Ex. p 1), accused Satya Narayan did not cause injuries to deceased Chammulal, or to Harisingh, Tilluram and Sundersingh. It was accused Chhotey alias Shivkumar, who inflicted injuries to the deceased. Therefore, if it had been the intention of P. W. 2 Harisingh to save the deceased, then, he would have caused injuries to Chhotey alias Shiv Kumar and not to Satya Narayan. Therefore, the story of the defence appears to be correct that accused Satyanarayan was first attacked by P. W. 2 Harisingh and then accused Chhotey alias Shiv Kumar caused injuries to deceased Chhammulal. Therefore, the story of the defence appears to be correct that accused Satyanarayan was first attacked by P. W. 2 Harisingh and then accused Chhotey alias Shiv Kumar caused injuries to deceased Chhammulal. The above quoted portion of the judgment and the other relevant parts of the judgment which we have perused carefully would go to show that the trial Court turned the plea of self defence on the ground that only Sundersingh and Tilluram had rushed at the appellant, Chhottey. It was held that in order to protect himself from the attack there was no justification for causing injuries to deceased Chhammuiai. In the above respect it is stated by the learned trial Judge that the appellant accused Chhotey has not sustained any injury and therefore the defence story sought to be proved that members of the complainant party had tried to attack him, has no basis. In conclusion the trial. Court in paragraph 28 held the present appellant guilty in the following words"28. As accused Chhotey alias Shivkumar has not sustained any injury, therefore, the defence story that some of the prosecution witnesses had tried/to attack him, holds no water. In my opinion, from the facts of the case, it appears that P. W. 2, Harisingh first inflicted injuries, to accused Satya Narayan. Thereupon in retaliation, accused Chhotey alias Shivkumar inflicted injuries with an iron rod to P. W. 2 Harisinghts father, deceased Chhammulal. This was done neither to save himself nor to save his brother accused Satya Narayan. " ( 5 ) THE learned counsel appearing for the appellant accused submits that the trial Court in holding his client guilty totally lost sight of the relevant aspect of the case that the present appellant has acted in exercise of right of self defence of person of his brother Satya Narayan as also of himself. Having held that the accused Satyanarayan was first attacked and only thereafter the present appellant accused caused injuries to the deceased clearly made out a case of self defence because Satya Narain has eight injuries on his person, of which five were incised injuries caused by a sharp weapon and three injuries were by hard and blunt object. Having held that the accused Satyanarayan was first attacked and only thereafter the present appellant accused caused injuries to the deceased clearly made out a case of self defence because Satya Narain has eight injuries on his person, of which five were incised injuries caused by a sharp weapon and three injuries were by hard and blunt object. The learned counsel for the accused appellant argues that the conviction of the appellant on the ground that he hit the deceased in retaliation or in order to take revenge is not made out from the evidence on record. The injuries to the members of the parties on both sides were caused in the same incident. It is, therefore, submitted on behalf of the appellant that his case is squarely covered by section 100 I. P. C. ( 6 ) WE have also heard the learned counsel appearing for the State, who supported the judgment of conviction. ( 7 ) HAVING considered the evidence on record and the reasoning of the learned trial Judge, we are of the opinion that the argument advanced on behalf of the present appellant-accused by learned counsel appearing for him has great force. The trial Court had rejected the prosecution story in material part as to the place of occurrence and the manner of assault. The two accused were there fore acquitted. The trial Judge, therefore clearly erred in convicting the present appellant on the ground that he acted in retaliation or to take revenge. The learned trial Judge failed to take notice that co-accused Satya Narain had as many as eight injuries on his person, of which five were incised caused by sharp weapon. This was sufficient justification for the appellant-accused to causing injuries to the deceased in his own defence and the defence of his brother, Satya Narayan. It was wrong on the part of the trial Judge not to have given benefit to the present appellant accused of the plea of self defence which is clearly available to the appellant as per the provisions of section 100 I. P. C. ( 8 ) CONSEQUENTLY, the present appeal succeeds and is hereby allowed. The Judgment of conviction and sentence imposed on the present appellant-accused is set aside and he is acquitted of the charge. Since, the appellant is on bail, his bail bonds are discharged and the appellant need not surrender to custody. Appeal allowed. The Judgment of conviction and sentence imposed on the present appellant-accused is set aside and he is acquitted of the charge. Since, the appellant is on bail, his bail bonds are discharged and the appellant need not surrender to custody. Appeal allowed. .