JUDGMENT 1. - This appeal is directed against the judgment dated 11.8.1995 passed by the learned Additional Sessions Judge No. 1, Sriganganagar camp Srikaranpur whereby the learned Addl. Sessions Judge held the accused-appellants Banwarilal, Bhalaram, Sonaram and Arjanram guilty of the offences under sections 302, 307/34, 326/34, 341, 323 & 324IPC and sentenced them to rigorous imprisonment for life together with a fine of Rs. 500/- each and in default of payment of fine to further undergo rigorous imprisonment for six months for the offence under section 302 IPC; to undergo three years rigorous imprisonment together with a fine of Rs. 200/- and in default of payment of fine to further undergo rigorous imprisonment for two months for the offence under Section. 307/34 IPC; to rigorous imprisonment for one year together with a fine of Rs. 200/- and in default of payment of fine to further undergo rigorous imprisonment for 15 days for the offence under section 326/34 IPC; to rigorous imprisonment for six months for the offence under section 324 IPC; to rigorous imprisonment for two months for the offence under section 323 IPC and to rigorous imprisonment for two months for the offence under section 341 IPC. All the substantive sentences were ordered to be run concurrently. 2. The case of the prosecution, briefly stated is that on 6.6.1991, at about 10.30 a.m. Sidhuram was coming after taking a bate' from Khala. When he reached near the house of accused Banwarilal, he was accosted by the accused. Accused Banwarilal was armed with Gandhali and accused Sonaram, Arjanram and Bhalaram were having Gandasis. Accused Banwarilal administered a blow on his head as a result of which Sidhuram fell down. On seeing the accused armed with above deadly weapons and waiting for Sidhuram, PW 6 Mst. Lichhami immediately rushed and informed PW 3 Sukhram, PW 4 Arjunram, Gulabram and Maduram that the accused were assaulting Sidhuram. Thereupon Gulabram, Maduram , PW 3 Sukhram and PW 4 Arjunram immediately rushed to the place of the occurrence which was not far off to save Sidhuram. 3. It is alleged that as soon as these four persons reached the place of the occurrence, the accused started assaulting them also. Thereupon Gulabram, Maduram , PW 3 Sukhram and PW 4 Arjunram immediately rushed to the place of the occurrence which was not far off to save Sidhuram. 3. It is alleged that as soon as these four persons reached the place of the occurrence, the accused started assaulting them also. PW 4 Arjunram wanted to save PW 3 Sukhram and in that process he raised his hands and accused Arjanram inflicted a Gandasi blow on his left hand as a result of which his left thumb was partially cut. Gulabram was assaulted by accused Sonaram and Bhalaram with Gandasis as a result of which he sustained head injuries and fell down on the ground. Accused Bhalaram, Arjanram and Banwarilal dealt blows on Sukhram and Maduram as a result of which, they also sustained injuries. After sustaining the injuries, Sidhuram and Gulabram became unconscious. 4. Thereafter the complainant party put Gulabram and Sidhuram on cart and brought them to the house and from there they hired a Jeep and brought them to the Police Station and then to the Hospital. Pyarelal was the incharge of the Police Station, Kesharisinghpur. He immediately informed PW 10 Mangtu Khan that some injured persons had been admitted in the Hospital. On hearing this he immediately went to the Hospital and recorded the statement of Arjunram (Ex. P/18). On the basis of the statement Ex. P/18 the police registered a case against the accused. 5. Thereafter, PW 10 Mangtu Khan went to the place of occurrence on 7.6.1991 and at the instance of PW 3 Sukhram prepared the site plan Ex. D/1. He also lifted the blood smeared soil and control soil from the place of the occurrence and prepared the seizure memos. He further seized the blood stained clothes of the injured. Sidhuram succumbed to his injuries on 9.6.1991 whereas Gulabram expired on 5.7.1991. 6. The Investigating Officer got the injured persons medically examined from PW 5 Dr. Gopal Dass Sharma. PW 5 Dr. Gopal Dass Sharma examined the injuries of Arjunram and vide injury report Ex. P/2 found one incised wound measuring 41/2" x 3" on his left hand radial side. This injury was found to be grievous in nature and according to the doctor it was caused by a sharp weapon. Bones and vessels were found to be cut. A part of the left thumb of his hand was also amputated. P/2 found one incised wound measuring 41/2" x 3" on his left hand radial side. This injury was found to be grievous in nature and according to the doctor it was caused by a sharp weapon. Bones and vessels were found to be cut. A part of the left thumb of his hand was also amputated. The lower part of the radius bone and the metacarpol bone were also found to be cut. 7. The injuries of Gulabaram were examined vide Injury Report Ex. P/3 and according to the doctor there was one lacerated wound with depressed skull 3" long and 1'4" deep on his right fronto-parietal region. He further found one lacerated wound 2" long and 1/2" deep on his right occipito parietal region. These injuries were caused by blunt weapon. 8. Dr. Gopal Dass Sharma further examined the injuries of Sukharam and vide injury report Ex. P/4 he found one lacerated wound 11/2" long on his scalp near vertex mid line. This injury was also found to be caused by blunt weapon. 9. The injuries sustained by Maduram were also examined vide Injury Report Ex. P/ 5 and there was one incised wound 1" long and 1/2" deep on his back of neck. The blood was found to be clotted. The doctor also found two simple abrasions on his person. These injuries were simple in nature and were caused by sharp weapon. 10. PW 11 Dr. K.N. Markandey examined the injuries sustained by Sidhuram vide Injury Report Ex. P/27. He found one lacerated wound of the size of 11/4" x ⅓" x bone deep above his right eye and one lacerated wound 2-1'3 x 1'4" x bone deep on his right parietal region transversely. Both these injuries were found to be grievous and were caused by blunt weapon. The doctor also found swelling around his right eye. 11. It may be stated here that the motive for committing this offence as revealed from the prosecution evidence, is that about one month before the date of occurrence PW 1 Gangali went to the Jungle to answer the call of nature where accused Arjanram met her and invited her to have with him. On this Gangali became angry and abused him. She reported this matter to her sister PW 2 Mst. Sugana Bai, who in turn apprised of this incident to her husband Sidhuram. On this Gangali became angry and abused him. She reported this matter to her sister PW 2 Mst. Sugana Bai, who in turn apprised of this incident to her husband Sidhuram. Sidhuram went to the house of the accused and raised a protest against this unwarranted and indescent behaviour of Arjanram. Accused Sonaram, the father of accused Arjanram retorted by saying that his son would do that also in future. This incident created bad blood between the complainants and the accused. 12. It may be stated here that during this incident the accused also received certain injuries. Their injuries were also got examined by PW 5 Dr. Gopal Dass Sharma. On examination of the injuries sustained by accused Arjanram, the doctor found that there was an incised wound 11/2" long on his scalp. Similarly vide injury report Ex. D/4-A the doctor found one incised wound 3" long on his forehead on left side frontal region, one incised wound of the size of 11/4" on the middle of his forehead 3" above the root of nose and one incised wound of the size of 2" long on his left forearm anteriorly in its middle. He also found one contusion on his person. The accused Banwarilal was also found to have sustained one incised wound 9" long on his back right scapular region. 13. After usual investigation, the police filed a challan against the accused-persons in the Court of the learned Addl. Chief Judicial Magistrate, Srikaranpur, who committed the accused-persons to the Court of the learned Addl. Sessions Judge No. 1, Srigan ganagar camp Srikaranpur. The learned Addl. Sessions Judge framed the charges against the accused-persons. The accused persons did not plead guilty to the charges and claimed to be tried. 14. To prove the case of the prosecution, the prosecution examined 12 witnesses in support of its case.,The statements of the accused-persons were recorded under section 313 Criminal procedure Code They denied to have caused any injuries to any person or to have committed the murders of Sidhuram and Gulabram. They have claimed that it was the complainant party who was the aggressor and assaulted them with deadly weapons and they defended themselves only. The accused-persons produced DW 1 Naru Ram in their defence. 15. After hearing both the parties and appreciation of the prosecution evidence the learned Addl. They have claimed that it was the complainant party who was the aggressor and assaulted them with deadly weapons and they defended themselves only. The accused-persons produced DW 1 Naru Ram in their defence. 15. After hearing both the parties and appreciation of the prosecution evidence the learned Addl. Sessions Judge held that the prosecution has been able to prove its case beyond reasonable doubt against the accused-persons. He, therefore, convicted and sentenced the accused-persons as aforesaid. 16. We have heard M/s. M.L. Garg and M.K. Garg, the learned counsel appearing for the accused-appellants; Miss Chandralekha, the learned Public Prosecutor for the State and M/s. S.S. Dhilon and D.D. Kalla for the complainants. 17. The learned counsel appearing for the accused-appellants has challenged the conviction and sentences recorded against the accused-persons and has contended that the learned Addl. Sessions Judge has not made a correct and rational assessment of the prosecution evidence. He also failed to correctly spell out the real genesis of the occurrence and lost sight of the fact that with regard to the above occurrence the accused also lodged FIR No. 111 of 1991 against the complainants; a case was registered and after usual investigation, a challan was also filed which is still pending. The learned counsel has further contended that in the said FIR, after investigation, the investigating agency came to the conclusion that the occurrence occurred in the house of the accused Banwarilal and the complainants were the aggressors. It was also found that three accused persons also sustained injuries which are neither insignificant nor superficial. Some injuries were caused by sharp edged weapons. The prosecution has not conceded the existence of such injuries and the prosecution witnesses are also not telling the truth. While PW 2 Smt. Sugana Bai and PW 3 Sukharam have admitted that three accused also sustained injuries, but PW 4 Arjunram has denied the same. The prosecution witnesses have further lied that they were empty handed. 18. The learned counsel contended that from the testimony of PW 1 Gangali, PW 2 Sugana Bai and PW 6 Lichhami it is clear that PW 6 Lichhami informed Arjunram, Gulabram, Sukhram and Maduram that the accused armed with deadly weapons were waiting for Sidhuram. It was after receipt of this information that Arjunram, Sukhram, Maduram and Gulabram set out to face the accused. It was after receipt of this information that Arjunram, Sukhram, Maduram and Gulabram set out to face the accused. Since they were proceeding to provide protection to Sidhuram against impending assault by the accused, it was not likely that these persons would proceed on such a mission empty handed. The learned counsel submitted that they were all armed with Gandasis and lathis. As soon as they reached the accused they attacked the latter and in that process three accused-persons viz., Banwarilal, Arjanram and Sonaram received certain injuries. In those circumstances, the accused had a right of private defence of person to protect themselves against the assault inasmuch as they apprehended grievous hurt at the hands of the accused. Hence even if the accused caused injuries to Gulabram, Sidhuram, Arjunram and Maduram, their act falls within the strict ambit of the right of private defence of person. 19. Regarding Sidhuram, his contention was that the prosecution witnesses have alleged that accused Banwarilal dealt a Gandali blow on his head but regarding other injuries, there is no definite evidence. All the three eye witnesses have alleged that all the four accused dealt blows with their respective weapons to Sidhuram but Sidhuram was found to have sustained only three injuries on his person. Thus the prosecution evidence is not clear as to who caused the above injuries to Sidhuram. 20. Regarding the injuries sustained by Arjunram, Gulabram, Sukhram and Maduram, the evidence of the prosecution witnesses is totally inconsistent, contradictory and unbelievable. In the alternative, the learned counsel also submitted that even if it is assumed that Sidhuram was assaulted by accused Banwarilal or any other accused, he sustained only two head injuries and he died on the 3rd day and hence, the offence does not travel beyond the provisions of Section 304 Pt. II, IPC. 21. Regarding the injuries sustained by Gulabram, the learned counsel made similar arguments. He submitted that in fact, Gulabram died on account of improper medical care and treatment and not account of injuries sustained by him. 22. In support of his contentions, the learned counsel drew our attention to Gopiram v. State,1986 RLW 659 ; Lakshmi Singh v. State of Bihar, 1976 SCC (Criminal.) 671 ; and Dhananjai v. State of U.P., 1994 SCC (Criminal.) 184 . 23. 22. In support of his contentions, the learned counsel drew our attention to Gopiram v. State,1986 RLW 659 ; Lakshmi Singh v. State of Bihar, 1976 SCC (Criminal.) 671 ; and Dhananjai v. State of U.P., 1994 SCC (Criminal.) 184 . 23. On the other hand, the learned Public Prosecutor, appearing for the State as also the learned counsel appearing for the Complainants supported the impugned judgment of the learned trial Court. 24. We have considered the rival submissions made at the bar and have also very carefully perused the evidence on record. 25. It has not been disputed before us that Sidhuram and Gulabram died on account of the injuries sustained by them though it was suggested that Gulabram died on account of lack of proper medical treatment and care and he did not die on account of the injuries sustained by him. 26. We may state here that from the perusal of the evidence on record, it is revealed that this incident happened in two parts. In the first part of the incident, it is alleged that the accused armed with deadly weapons, were waiting for Sidhuram and when Sidhuram reached near the house of accused Banwarilal after taking a bath from the Khala, he was accosted by the accused and was assaulted. It is further alleged that accused Banwarilal stuck a Gandali blow on the head of Sidhuram as a result of which he fell down. The other accused also assaulted Sidhuram with their respective weapons on his head. 27. In the second part of the incident it is alleged that on seeing the accused armed with deadly weapons waiting for Sidhuram, Lichhami rushed and informed Arjunram, Sukhram, Gulabram and Maduram that armed with deadly weapons the accused were waiting for Sidhuram. Apprehending that the accused may commit murder of Sidhuram, these persons immediately proceeded to the place of the occurrence. This second incident occurred thereafter. 28. Now we may examine the testimony of the prosecution witnesses with regard to the first incident. 29. The prosecution has produced three eye witnesses viz., PW 3 Sukhram, PW 4 Arjunram and PW 6 Lichhami. PW 1 Gangali has stated that on the day of the occurrence she saw accused Banwarilal armed with a Gandali and accused Arjanram, Bhalaram, and Sonaram armed with Gandasis and they were waiting for Sidhuram. 29. The prosecution has produced three eye witnesses viz., PW 3 Sukhram, PW 4 Arjunram and PW 6 Lichhami. PW 1 Gangali has stated that on the day of the occurrence she saw accused Banwarilal armed with a Gandali and accused Arjanram, Bhalaram, and Sonaram armed with Gandasis and they were waiting for Sidhuram. However, in her statement, she has clearly stated that she did not go to the place of the occurrence. Hence, it cannot be said that she is an eye witness of the occurrence.PW 2 Sugana Bai has stated that after receiving a message from PW 6 Lichhami, Arjunram, Gulabram, Maduram and Sukhram immediately rushed to the place of the occurrence and the women-folk also went after these persons. She has further stated that as soon as they reached there all the four accused assaulted Gulabram, Sukhram, Maduram and Arjunram. She has further stated that she saw Sidhuram lying on the ground with head injuries. Thus she is also not an eye witness of the first part of the incident.PW 3 Sukhram has stated that all the accused were standing in front of the house of accused Banwarilal armed with deadly weapons. He has stated that accused Banwarilal dealt a Kandhali blow on the head of Sidhuram. He has further stated that no other accused assaulted Sidhuram. However, PW 4 Arjunram has stated that accused Banwarilal administered a Kandhali blow on the head of Sidhuram and thereupon Sidhuram raised an alarm. He further stated that thereafter Sonaram, Arjanram and Bhalaram each dealt Gandasi blows on the head of Sidhuram. Thus according to PW 4 Arjunram, all the four accused persons dealt one blow each on the head of Sidhuram.PW 6 Mst. Lichhami has stated that accused Banwarilal and Sonaram dealt one blow each on the head of Sidhuram by Kandhali and Gandasi respectively. According to the injury report Ex. P/27 Sidhuram was found to have sustained two lacerated wounds on his head and diffused swelling was also found over his right eye which may be the effect of injury No. 1 which was caused above the right eye. All the three injuries were caused by weapon. As stated above, the prosecution evidence is not clear as to who was the author of all these injuries though evidence regarding accused Bawarilal is certain that he caused a Kandhali blow on the head of Sidhuram. All the three injuries were caused by weapon. As stated above, the prosecution evidence is not clear as to who was the author of all these injuries though evidence regarding accused Bawarilal is certain that he caused a Kandhali blow on the head of Sidhuram. PW 3 Sukhram did not name any other accused but on the other hand PW 4 Arjunram implicated all the four accused. It is also important to note that these witnesses have not stated whether the sharp side or the blunt side of the weapon viz., Kandhali and Gandasi was used. 30. In Hallu v. State of M.P., 1974 SCC (Criminal.) 462 , the Hon'ble Supreme Court has held that normally when the witness says that an axe or a spear is used, there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication, it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing instrument was used as a blunt weapon. As stated above, in the instant case, the prosecution has not sought any clarification from the prosecution witnesses as to whether the blunt side of Kandhali or Gandasis was used by the accused. 31. Be that as it may, with regard to the act of accused Banwarilal, the evidence of the prosecution witnesses is consistent that he caused a Kandhali blow on the head of Sidhuram. However regarding participation of other accused, the prosecution evidence is not consistent and reliable. We, therefore, hold that the head injury was caused by accused Banwarilal. However, doubt remains regarding participation of other three accused viz., Sonaram, Bhalaram and Arjanram and therefore they are entitled to the benefit of doubt according to criminal jurisprudence. 32. It was next contended by the learned counsel appearing for the accused-appellants that the charge under section 302 rule with Section 34 IPC cannot be sustained against the accused-appellants Bhalaram, Sonaram and Arjanram. He submitted that though their presence at the place of the-occurrence may be assumed but from the prosecution evidence it emerges that all the four accused were standing in front of the house of accused Banwarilal presumably waiting for Sidhuram. Regarding his movements they were certain. He submitted that though their presence at the place of the-occurrence may be assumed but from the prosecution evidence it emerges that all the four accused were standing in front of the house of accused Banwarilal presumably waiting for Sidhuram. Regarding his movements they were certain. According to prosecution accused Banwarilal Was armed with a Gandhali and other three accused were armed with Gandasis. Section 34 contemplates the case where more persons than one share in the doing of the act and the said act is done in furtherance of the common intention of all. This section embodies the common sense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually. Common intention implies acting in concert, existence of a prearranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. This section recognises a principle of joint liability in the doing of a criminal act and the essence of that liability is the existence of a common intention. In Lalai alias Dindoo v. State of U.P., 1974 SCC (Criminal.) 881 , it has been observed by their Lordships of the Supreme Court that as regards the aspect of common intention under section 34, the weapons carried by the appellants, their relationship with each other, and their concerted conduct in the wake of murder would all be relevant. Common intention could be inferred from the surrounding circumstances and the conduct of the accused persons preceding, attending and subsequent to the occurrence. 33. If we examine the facts of the present case in the light of the above principles, it would be apparent that all the accused were armed with weapons and when a person is armed with a weapon it indicates that he has an intention to indulge in criminal violence. However from the surrounding circumstances it can be inferred that there was no common intention to commit the murder of Sidhuram. It is manifest from the fact that though all the accused were armed with sharp edged weapons, none of them assaulted from the sharp side of the weapon. This clearly negatives the inference that the accused wanted to commit the murder of Sidhuram with the sharp edged weapons. It is manifest from the fact that though all the accused were armed with sharp edged weapons, none of them assaulted from the sharp side of the weapon. This clearly negatives the inference that the accused wanted to commit the murder of Sidhuram with the sharp edged weapons. As stated above, it has been proved beyond reasonable doubt that accused Banwarilal is responsible for causing head injury to Sidhuram. The participation of other accused persons in the assault has not been proved. Had the accused any common design or common intention to commit the murder of Sidhuram, each of them could have participated in the actual assault. However only Banwarilal is proved to be the author of the head injury caused to Sidhuram which resulted in his death. 34. The learned counsel argued that Sidhuram died 3 days after the sustaining of injuries therefore, it can be presumed that it was not the intention of accused Banwarilal to cause culpable homicide amounting to murder. If the accused wanted to commit the murder of Sidhuram, he would have caused injuries with sharp edge of the weapon inspite of using its blunt side. Moreover, Sidhuram died after 3 days and hence, it cannot be said that the injuries were sufficient in the ordinary course of nature to cause his death. 35. A perusal of the postmortem report Ex. P/28 of Sidhuram shows that there was a depressed fracture of fronto parietal bone. It appears that after sustaining the above head injuries, Sidhuram never regained consciousness. According to the doctor, the cause of his death was intra cranial haemorrhage due to head injuries. Though the death of Sidhuram occurred after 3 days of the infliction of injuries but in our opinion the injury caused to Sidhuram by accused Banwari Lal was sufficient to cause his death in the ordinary course of nature. Hence the offence under section 302 IPC has been proved beyond reasonable doubt against accused Banwarilal. However the offence under section 302 IPC for the commission of murder of Sidhuram has not been proved beyond reasonable doubt against the remaining accused viz., Bhalaram, Sonaram and Arjanram. 36. Now, we may consider the second part of the incident. The second part of the incident was also witnessed by PW 3 Sukhram, PW 4 Arjunram and PW 6 Mst. Lichhami. 36. Now, we may consider the second part of the incident. The second part of the incident was also witnessed by PW 3 Sukhram, PW 4 Arjunram and PW 6 Mst. Lichhami. According to PW 3 Sukhram and PW 4 Arjunram accused Arjanram inflicted injuries on the left hand of Arjunram complainant as a result of which a part of his left thumb was cut and later on amputed. PW 3 Sukhram has further stated that the injury was caused to him by accused Bhalaram whereas PW 4 Arjunram has stated that two injuries were caused to Sukhram : one by Arjanram by blunt side of his Gandasi and the other by accused Banwarilal. Thus there is a contradiction in the testimony of PW 3 Sukhram and PW 4 Arjunram. However the testimony of PW 3 Sukhram may be believed because there is only one injury sustained by him on his head that was caused by accused Bhalaram. Obviously, PW 4 Arjunram is not telling the whole truth when he alleges that accused Arjanram and Banwarilal dealt one blow each to Sukhram. 37. Maduram sustained three injures according to Injury Report Ex. P/5. As stated above there is lot of contradiction in the testimony of the eye-witnesses regarding the author of the injuries sustained by accused Maduram. PW 3 Sukhram has alleged that accused Bhalaram dealt a blow on the back of Maduram whereas PW 4 Arjunram has stated that the above injuries were caused by accused Banwarilal and Arjanram. Maduram has not been examined in the witness box. Thus it is very difficult to conclude as to who was the author of the injuries caused to Maduram. 38. Moreover according to the prosecution, the motive behind the above incident was that PW 1 Gangali went to Jungle to answer the call of the nature and there accused Arjanram met her and invited her to have sex with him. She got infuriated and reported this matter to her sister who in turn reported it to her husband Sidhuram. Sidhuram went to accused Sonaram who happened to be the father of accused Arjanram and lodged protest against the indescent conduct of accused Arjanram. Instead of realising the mistake of Arjanram Sonaram challenged that Arjanram may do it again. She got infuriated and reported this matter to her sister who in turn reported it to her husband Sidhuram. Sidhuram went to accused Sonaram who happened to be the father of accused Arjanram and lodged protest against the indescent conduct of accused Arjanram. Instead of realising the mistake of Arjanram Sonaram challenged that Arjanram may do it again. This fact has been proved by the statement of PW 1 Gangali; PW 2 Suganbai; PW 3 Sukhram, PW 4 Arjunram and PW 6 Mst. Lichhami. All the above witnesses are consistent in their statements regarding this point and thus they must be believed. 39. The learned counsel appearing for the accused-appellants pleaded the right of self defence in respect of the second incident. He has submitted that the prosecution witnesses viz., PW 3 Sukhram, PW 4 Arjunram, PW 6 Mst. Lichhami, PW 1 Gangali and PW 2 Sugana Bai are pot telling the truth when asked by the counsel for the accused that when they went to provide protection to Sidhuram they were all armed with lathies and Gandasis. Even the prosecution witnesses have candidly admitted that three accused persons sustained the injuries during the above incident. PW 2 Sugana Bai and PW 3 Sukhram have admitted that three accused sustained injuries but PW 4 Arjunram has denied this fact. However from the statement of PW 5 Dr. Gopal Dass Sharma it is proved that he examined the injuries of accused Arjanram, Sonaram and Banwarilal and found the injuries as described in Injury Reports Ex. Ds. 3, 4 & 5. The above injury reports have been proved by the statement of PW 5 Dr. Copal Dass Sharma. The duration of the injuries correspond to the time of the second incident. Two of the prosecution witnesses have admitted that the above accused sustained injuries. Thus, we feel no difficulty in holding that during the above incident, three accused persons also sustained injuries. 40. In this connection, we may refer to Lakshmi Singh v. State of Bihar, 1976 SCC (Criminal.) 671 regarding the principles which must guide the Court in appreciating the evidence where during the alleged incident the accused also sustained injuries and the right of private defence is pleaded. 40. In this connection, we may refer to Lakshmi Singh v. State of Bihar, 1976 SCC (Criminal.) 671 regarding the principles which must guide the Court in appreciating the evidence where during the alleged incident the accused also sustained injuries and the right of private defence is pleaded. In that case it was observed as under : "Where the prosecution fails to explain the injuries on the accused, two results follows : (1) That the evidence of the prosecution is untrue; and (2) that the injuries probabilise the plea taken by the appellants. In a murder case, 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 from which the Court can draw the following inferences: (1) that the prosecution has supported the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore, their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. 41. In the instant case, a perusal of the injury reports of accused Arjanram, Sonaram and Banwarilal clearly shows that the injuries sustained by them are not insignificant or superficial. Accused Arjanram sustained an incised wound on his head. Similarly, accused Sonaram sustained three incised wounds on his head, forehead and left head. 41. In the instant case, a perusal of the injury reports of accused Arjanram, Sonaram and Banwarilal clearly shows that the injuries sustained by them are not insignificant or superficial. Accused Arjanram sustained an incised wound on his head. Similarly, accused Sonaram sustained three incised wounds on his head, forehead and left head. Accused Banwarilal sustained an incised wound 9" in length on his right scapular region. The prosecution has not made any attempt to explain as to how the above injuries were sustained by the accused. The prosecution witnesses even denied that Arjunram, Sukhram, Maduram and Gulabram were armed with any weapons when they went to provide protection to Sidhuram on the information furnished by PW 6 Mst. Lichhami. In our opinion when there was enmity between the two groups and when PW 6 Mst. Lichhami gave a categorical information that the accused persons, armed with deadly weapons, were waiting for Sidhuram it cannot be believed that these four persons of the complainant party would proceed to the place of the occurrence in order to provide cover to Sidhuram empty handed. They must have been armed with weapons but the prosecution is concealing that fact. The prosecution witnesses are therefore, flirting with the truth. We have already held above that accused Banwarilal, Arjanram and Sonaram sustained injuries by sharp edged and blunt weapons. This strongly probabilised the possibility that the above four persons of the complainant party viz., Gulabram, Arjunram, Sukhram and Maduram were armed with sharp edged and blunt weapons. They must have participated in the assault resulting in infliction of injuries to accused Sonaram, Banwarilal and Arjunram. 42. Now the question is whether in the facts and circumstances of the case, the accused were entitled to exercise the right of private defence? 43. The right of self preservation is the basic nucleus from which the right of private defence of property and person has been enacted in the Penal Code. In the ordinary course of conduct the accused's uppermost instinct when they are threatened with extinction of their person and property would be to ward off the threat by whatever means they can adopt without permitting an opportunity to the complainant's party to succeed in their objective. The right of private defence is purely preventive and not punitive or retributive. In the ordinary course of conduct the accused's uppermost instinct when they are threatened with extinction of their person and property would be to ward off the threat by whatever means they can adopt without permitting an opportunity to the complainant's party to succeed in their objective. The right of private defence is purely preventive and not punitive or retributive. The right of private defence is available in the face of imminent peril to those who acts in good faith and in no case can the right be conceded to a person who stage-manages a situation wherein the right could be used as a shield to justify an act of aggression. Whether the apprehension was reasonable or not is a question of fact and for deciding this point, the weapons used, the manner of using the weapons, the nature of assault and other surrounding circumstances need to be taken into account. 44. In the instant case, if we analyse the facts of the case, it is clear that the complainants must have been armed with sharp edged weapons and they also used the same as a result of which, three accused persons received injuries as described above. Two accused persons received injuries on head by sharp edged weapons. Hence, the accused can be said to have entertained a reasonable apprehension that the other party armed with deadly weapons, was not hesitating to use the same and if they do not take any steps in retaliation in order to protect themselves, grievous hurt may be caused or they may face the prospect of extinction. The accused-persons were, therefore, justified in using their weapons frustrating the assault intended by the other party. The accused persons did not exceed their right of private defence. Gulabram definitely received injuries on his head but he died after about one month. Hence, it is clear that the accused did not exceed the right of private defence by assaulting Gulabram. If we compare the injuries sustained by accused persons and the complainant party in justa position, it becomes clear that the force used by the accused was not excessive. Hence we hold that accused Sonaram, Arjanram, Banwarilal and Bhalaram are entitled to the right of their private defence and they cannot be held guilty of the offences under sections 307/34, 326 /34, 324, 323 & 341 IPC. 45. Hence we hold that accused Sonaram, Arjanram, Banwarilal and Bhalaram are entitled to the right of their private defence and they cannot be held guilty of the offences under sections 307/34, 326 /34, 324, 323 & 341 IPC. 45. For the above reasons, we allow this appeal in part and maintain the conviction and sentence of accused Banwarilal for the offence under section 302 IPC. However we set aside the conviction and sentence of accused Sonaram, Arjanram and Bhalaram for the offence under section 302 IPC. The conviction and sentence recorded against accused-appellants Sonaram, Banwarilal, Bhalaram and Arjanram for the offences under sections 307/34, 326/34, 324, 323 & 341 IPC are also set aside. The accused-appellants Sonaram, Bhalaram and Arjanram are acquitted of the offences with which they were charged. They be set at liberty forthwith, if not required in any other case.Appeal allowed. *******