JUDGEMENT Balakrishnan, J. :- Seven accused persons were tried by the Court of Session, Kasaragod for various offences including the offence punishable under Section 302 read with Section 149 I.P.C. Except first accused, all others were acquitted of all charges. The 1st accused was found guilty of offence punishable under Section 304 Part II and was sentenced to undergo rigorous imprisonment for a period of 5 years. He was also directed to pay fine of Rs. 1000/- with a default sentence of rigorous imprisonment for one month. Crl. A. No. 439 of 1993 is an appeal preferred by the first accused challenging his conviction and sentence and Crl. A. No. 805 of 1993 is an appeal filed by the State challenging the acquittal of accused 2 to 7 and also praying for conviction of the first accused for the offence punishable under Section 302 read with Section 149 I.P.C. 2. We heard appellant's counsel and also the learned Public Prosecutor. The prosecution case is that on 14-4-90 deceased Appachan and 7 others had gone to the house of the appellant to enquire as to who had removed the D.Y.F.I. flag hoisted by them. Deceased Appachan and his colleagues are members of the Marxist party. Appellant and his relatives belonged to Congress (I) party. The appellant, his mother, wife, sister and brothers were residing in a house adjoining to a public road. According to prosecution, when deceased Appachan and his friends reached near the house of the appellant, second accused Sunny came out of the house and asked who had filed police complaint against them. Then the deceased came forward and told that he had filed the police complaint. Then PW 6 told that if the Party's flage is lost it is usual to file police complaint. The further case of the prosecution is that then the other accused also came out of the house and threatened deceased Appachan and others. Appachan was pushed down and PW 6 tried to pacify the accused persons. Then the appellant ran to a nearby house belonging to his brother and came out with a dagger and threatened that everyone would be finished and he stabbed deceased Appachan and the other accused also intervened. On sustaining stab injury, Appachan staggered few steps and fell on the ground. PW 6 and others ran away from the place. Then the appellant ran to a nearby house belonging to his brother and came out with a dagger and threatened that everyone would be finished and he stabbed deceased Appachan and the other accused also intervened. On sustaining stab injury, Appachan staggered few steps and fell on the ground. PW 6 and others ran away from the place. Aftersome time, PW 6 came to the place and saw deceased Appachan lying there. He later went to Bedakam police station and gave Ext. P1 F.I. statement. 3. PW 9, the Head Constable attached to Bedakam Police Station recorded Ext. P6 F.I. statement and PW 13, the C.I. of Police Kasaragod took over the investigation and held inquest over the dead body: The clothes worn by deceased Appachan were taken into custody and the body was later sent for post mortem examination. PW 13 later prepared a scene mahazar and questioned the witnesses and laid the final charge-sheet. 4. On the prosecution side PWs. 1 to 14 were examined and Exts. P1 to P17 were marked and M.O. 1. to M.O. 15 were exhibited. 5. Deceased Appachan had 5 anti-mortem injuries on his body. Injury No. 1 was an incised wound on the right side of the chest. It had a depth of 8 c.m. This injury had penetrated and caused a deep cut on the right lobe of the liver. Both chambers of the heart were found empty. The deceased had also some multiple abrasions possibly caused due to the falling on the ground. The prosecution relied on 4 eye witnesses. They are; PW 6, PW 10, PW 11 and PW 12. All these witnesses gave a uniform account of the incident. They stated that they along with deceased and others wanted to go to the house of the Panchayat member by name Koraga Naik. When they reached the house of the appellant, the 2nd accused Sunny came out and asked who had filed police complaint against them and then deceased Appachan told that he had filed the police complaint and there was a wordy altercation and scuffle and, according to these witnesses, all the inmates of the house of the appellant came out and it was at that point of time the appellant rushed to a nearby house and got a knife and stabbed the deceased. 6. 6. The evidence of these witnesses is seriously challenged by the appellant's counsel on various grounds. The plea of the appellant is that he was entitled to exercise the right of private defence and if at all the prosecution succeeded in proving that the appellant had caused an injury it was well within his right to exercise private defence and, therefore, the conviction of the appellant under Section 304 Part II of I.P.C. is not sustainable. Reference was made to various authorities to contend for the position that the appellant, under the above circumstances, was entitled to exercise his right of private defence. 7. It is submitted by the appellant's counsel that the deceased and others came to the place of occurrence with a particular object to meet the appellant and other inmates of the house to question as to who had removed the flag hoisted by them. It is submitted that they came to the house of the appellant for confrontation and they had no idea to go to the house of the Panchayat member. It is also contended that as the other accused have been acquitted by the Sessions Court, the (sic) adopted by the Sessions Judge in acquitting those accused would equally apply to the present appellant. Reference was made to the decision reported in Raghavan v. State of Kerala, 1967 Ker LT 71 : (1968 Cri LJ 255) and contended that the appellant had a right of private defence. In Raghavan's case, learned single Judge of this Court held thus : "The standard in such circumstances is not the standard of a cool by-stander. The actual assault is not what matters, but it is the apprehension in the mind of the accused that has to be taken into consideration. How the accused's mind was working at the time cannot be gauged by a theoretical appraisal of the situation by a by-stander. When once it is found that the right of private defence was available to the accused it would be unnecessary and wasteful for the court to embark upon subtleties as to the modulation of the right as also to indulge in speculative thoughts on the scope and limits of the right". We are not able to fully endorse that view expressed by the learned single Judge. We are not able to fully endorse that view expressed by the learned single Judge. It cannot be said that once the right of private defence is found, it would be unnecessary to embark upon subtleties as to the, modulation of such right. The law undoubtedly authorises a man who is under a reasonable apprehension that his life or the life of another is in danger or there is risk of grievous hurt, to inflict death upon the assailants but the apprehension must be reasonable and the violence inflicted must not be greater than is reasonably necessary for the purpose of self-defence. In that way, the person exercising the right of private defence must be careful in modulating his acts. It must be proportionate and commensurate with the quality and character of the act it is intended to meet and what is done in excess is not protected under law. 8. So, the most important question is whether there was any reasonable apprehension of danger to assailant and he committed the act of violence in exercise of this right. It is true that the deceased and others came to the house of the appellant and there was a confrontation. But, there is no evidence that they were fully armed and they came to the house of the appellant purposely to cause trouble. It is true that some of the accused sustained some injuries. Except the injury caused to 3rd accused Benny, the injuries of all other accused are of minor nature. The prosecution case proved by the 4 eye witnesses is that the appellant ran to the nearby house, took a knife and immediately stabbed deceased Appachan. This part of the overt act is spoken to by all the witnesses and the circumstances do not reveal that the appellant inflicted the injury at a time when he could have a reasonable apprehension of any danger. Moreover, the appellant and other inmates of the house were also in belligerent mood and they were prepared to take up the challenge, if any, posed by the deceased and others. The appellant and his relatives were also in a mood to attack the deceased and others and under such circumstances, we do not think that the appellant would be justified in seeking the protection of private defence and the learned Sessions Judge has rightly rejected that prayer. 9. The appellant and his relatives were also in a mood to attack the deceased and others and under such circumstances, we do not think that the appellant would be justified in seeking the protection of private defence and the learned Sessions Judge has rightly rejected that prayer. 9. Learned counsel for the appellant attacked the finding of the Sessions Court on various other grounds also. It was argued that there was a counter-case and the first information statement recorded in the counter case was not produced. The Police had registered another case alleging that deceased Appachan and others cause injury to the accused persons. We do not think, mere failure on the part of the prosecution to produce F.I. statement in the counter case is sufficient to disbelieve the prosecution version. The appellant also could have caused the production of such document if they really wanted to use it as a defence. 10. Learned counsel for the appellant further contended that non-explanation of the injuries found on the accused persons is sufficient to reject the prosecution case. Reliance was placed on the decision reported in Lakshmi Singh v. State of Bihar, 1976 Cri LJ 1736 : (AIR 1976 SC 2263). In that case, the Supreme Court observed that the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance and the omission on the part of the prosecution to explain the injuries on the person of the accused proved that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. It is true that some of the accused persons sustained injuries but it may be noticed that the prosecution version as such was not accepted by the Court of Session. The benefit of doubt arising out of that fact was given to other accused. The conviction of the appellant was entered on the basis of definite and clear evidence that he caused fatal injury on deceased Appachan. What part of the prosecution case is proved beyond reasonable doubt and the non explanation of the injury and other defects in the prosecution case has not affected this part of the case. 11. Learned counsel for the appellant contended that all the witnesses are interested persons. What part of the prosecution case is proved beyond reasonable doubt and the non explanation of the injury and other defects in the prosecution case has not affected this part of the case. 11. Learned counsel for the appellant contended that all the witnesses are interested persons. There were shops and houses nearby and the persons who could have seen the incident were not cited or examined by the prosecution. Merely because the witnesses belong to one group, there evidence cannot be simply rejected. If the witnesses are interested persons, careful scrutiny is required to assess their evidence. The learned Sessions Judge has assessed the evidence of these witnesses carefully and with much circumspection. We are of the view that the prosecution succeeded in proving that the appellant inflicted the fatal injury, on the deceased and he has rightly been convicted under Section 304 Part II I.P.C. 12. Crl. A. No. 805 of 1993 is an appeal filed by the State praying that the other accused persons who have been acquitted by the Sessions Judge shall be convicted for the offence punishable under Section 302 read with S. 149 I.P.C. and other offences. On a proper analysis of the prosecution evidence, we do not think that the prosecution has succeeded in proving the guilt of other accused. The evidence has been dealt with in detail by the Sessions Judge. We are also of the view that no offence under Section 302 has been made out in this case. Even according to the prosecution the incident happened in a heat of passion when there was confrontation with two groups of people owning allegiance to different political parties. The deceased had sustained only one fatal injury and that too is a circumstance to show that no offence under Section 302 is made out. The Appeal filed by the State is without any merit and it is liable to be dismissed. In the result, we dismiss Crl. Appeal No. 439 of 1993 and Crl. Appeal No. 805 of 1993. Appeal dismissed.