S. M. SONI, J. ( 1 ) APPELLANT-ORIGINAL accused has filed this appeal against the judgment and order dated 30/11/1990, passed by the Additional Sessions Judge, Ahmedabad Rural at Mirzapur in Sessions Case No. 61 of 1990, whereby the appellant is held guilty under Secs. 302 and 323 of the Indian Penal Code and is awarded R. I. , for life and R. I. , for three months and fine of Rs. 200, in default simple imprisonment for a month respectively. The learned Addl. Sessions Judge, further ordered the substantive sentence to run concurrently. ( 2 ) FACTS which led to the prosecution of the appellant (hereinafter referred to as the accused) are as under : on Makarsankranti Day of 1990 i. e. , 14/01/1990 in the evening about 5-15 p. m. , Mahesh Sitaram, P. W. 1, son of the deceased caught a kite from near his house. The house is situated in Block No. 485 of Gujarat Housing Board in Chandkheda. Opposite to the house of P. W. 1, there is a house of accused. Accused also claimed to have caught that very kite. This has resulted into a quarrel between the two. Accused gave two slaps to P. W. 1, who, therefore, shouted and on hearing the shouts, his mother, now deceased, came out of the house and told the accused that do not discuss with the child and told him to hand over the kite to P. W. 1. The accused, therefore, spoke irrelevant to the deceased and got annoyed and went to his house. He then came with a stick and inflicted blow thereof on her shoulder. P. W. 1 and his mother, therefore, raised shouts and P. W. 11, 12 and others came running there. As accused had given a blow of stick on the shoulder of the deceased, the deceased went in her house and brought an iron pipe and strike it on the head of the accused. Accused was, therefore, further annoyed and went to his house and came with an open gupti and gave a blow to the deceased. Deceased, however, moved and escaped the same and therefore, the accused gave another blow on the right side of chest as a result of which she raised shouts and fell down. As persons intervened, accused ran away with gupti. The mother of P. W. 1 was bleeding. Deceased, however, moved and escaped the same and therefore, the accused gave another blow on the right side of chest as a result of which she raised shouts and fell down. As persons intervened, accused ran away with gupti. The mother of P. W. 1 was bleeding. Then P. W. 1 went to call his father and being informed of the quarrel, deceased was taken to ahmedabad Civil Hospital in a rickshaw where she was declared dead by the doctors. Police Sub-Inspector Naginbhai, P. W. 13, was at village Koba who received wireless message from Adalaj Police Station by about 19-00 hours on that day (i. e. , 1 4/01/1990) that there was a scuffle in Sudarshannagar, Chandkheda wherein one ruxmaniben Sitaram has died in Ahmedabad Civil Hospital. He, therefore, went to sudarshannagar and recorded the complaint of Mahesh Sitaram, P. W. 1, after taking him to Chandkheda police chowky and the same was sent to the Adalaj Police Station to register the offence. ( 3 ) ON offence being registered, P. W. 13 started investigation and on completion of the same submitted charge-sheet against the accused in the Court of Judicial magistrate, First Class at Gandhinagar, who in his turn committed the case to the court of Sessions of Ahmedabad Rural at Mirzapur. The learned Additional Sessions judge framed charge against the accused to which accused pleaded not guilty and claimed to be tried. Additional Public Prosecutor then led necessary evidence to prove the charge levelled against the accused. On completion of the same, further statement of accused was recorded wherein his defence appeared to be of self-defence. Accused has not led any evidence in defence. The learned Addl. Sessions Judge, after hearing the learned A. P. P. , and the defence Advocate held the accused guilty of the offence charged against him and awarded sentence as referred to hereinabove. This judgment and order of conviction is under challenge in this appeal. ( 4 ) LEARNED Advocate Mr. Budhbhatti has challenged the conviction on the ground, viz. , that the judgment and order of the learned Additional Sessions Judge is erroneous and bad inasmuch as there are no independent witnesses examined by the prosecution. Learned Addl. Sessions Judge ought not to have relied on the said witnesses as they are interested one. Mr. Budhbhatti has challenged the conviction on the ground, viz. , that the judgment and order of the learned Additional Sessions Judge is erroneous and bad inasmuch as there are no independent witnesses examined by the prosecution. Learned Addl. Sessions Judge ought not to have relied on the said witnesses as they are interested one. Mr. Budhbhatti further contended that the case of the accused squarely falls under Exception either 4 or 2 of Sec. 300 of the I. P. C. , and the act of the accused at the most can be said to be a culpable homicide not amounting to murder, punishable under Part II of Sec. 304 of Indian Penal Code. ( 5 ) LEARNED A. P. P. , Mr. K. C. Shah contends that the incident has taken place in the evening of 14/01/1990; a holiday, where all the witnesses would be at home. As the incident has occurred near the home of the victim, there will be nothing wrong if the family members are the witnesses in the case, Mr. Shah contended that in the present set of social circumstances, it is difficult to expect independent persons to come as witnesses even if they have seen the incident. Simply because independent witnesses are not there, the evidence of the witnesses in the instant case is not liable to be rejected by labelling them to be of interested one. Mr. Shah contended that the evidence of interested witnesses is also liable to be accepted unless anything is shown by the defence which entitles the Court to reject their evidence. M. Shah further contended that this is not a case of self-defence. If the sequence of the events are looked in, then question of defence does not arise. Act of the accused is simpliciter an act of retaliation and not of defence. Mr. Shah contended that an act if committed on the spur of moment and not in retaliation, it may be said to be an act in defence or self-defence. Here, in the instant case, act of the accused is a retaliation and not a reaction for self-defence. Mr. Shah, therefore, contended that the question of self-defence does not arise in the instant case. Mr. Here, in the instant case, act of the accused is a retaliation and not a reaction for self-defence. Mr. Shah, therefore, contended that the question of self-defence does not arise in the instant case. Mr. Shah further contended that the injury on the person of the accused has been candidly explained by saying that the same was caused by the deceased when she was assaulted by the accused by stick. Mr. Shah, therefore, requested the Court to dismiss the appeal. ( 6 ) WE will first decide whether the prosecution has been able to establish the charge of Sec. 302 against the accused. We will first refer to the evidence of Mahesh sitaram, son of the deceased, P. W. 1. P. W. 1 has stated that in evening after 5-00 p. m. "i have come down from my terrace. At that time, a kite came near my house and I ran and caught it. At that time, accused came running from opposite side and caught that kite which I had caught before. I, therefore, told him to release the kite. He was so said thrice. However, he did not agree saying that it is he who has caught the kite. " Accused, therefore, gave him two slaps on his cheek. He, therefore, cried. On hearing his cry, his mother came out. His mother told the accused not to unnecessarily discuss with the child. However, the accused could not be persuaded and accused started giving abuses to P. W. 1 and his mother. P. W. 1 has further stated that "though my mother told him, the accused did not agree and then he went to his house and came with a stick. Accused brought stick from his house, gave stick blow on her left shoulder. My mother, therefore, went in the house came out with an iron pipe and gave a blow on the head of the accused. Accused got more enraged and went to his house and brought gupti and gave a blow on my mother. However, as my mother moved, she got some abrasion. Immediately, thereafter, the accused gave another blow of gupti which fell in between right shoulder and collar and there was bleeding. On being injured with gupti, my mother fell down. I went to call my father and accused ran away with gupti. However, as my mother moved, she got some abrasion. Immediately, thereafter, the accused gave another blow of gupti which fell in between right shoulder and collar and there was bleeding. On being injured with gupti, my mother fell down. I went to call my father and accused ran away with gupti. " In the cross-examination of this witness, nothing has been suggested to reject his evidence. From the cross-examination, it becomes clear that there is a public road of about 35 to 40 ft. , in between the two houses of accused and the complainant. One omission brought out by the defence in his evidence in cross-examination is that P. W. 1 has not stated in the complaint that when the accused gave first blow, abrasion was caused on the person. In the cross-examination it is also made clear that the incident took place in the court-yard/ota of the deceased. A suggestion is made in the cross-examination that when he caught that kite, he was on the terrace. However, looking to his evidence in examination-in-chief and corroborated on substantial parts by the complaint which is practically filed without any delay, the fact remains that a quarrel arose for kite as a result of which two slaps were given to P. W. 1 by the accused and then he was further annoyed by the intervention of the mother/deceased as a result of which he went to his house and brought a stick and inflicted blow on the shoulder of the mother/deceased and the mother to retaliate the same brought iron pipe from her house and inflicted blow on the head of the accused who in his turn again went to his house, came out with open gupti and inflicted two blows on the deceased and as a result of the second blow, the deceased had died. This part of the evidence of P. W. 1 is corroborated by the evidence of P. W. 11 and 12. P. W. 11 is the elder sister of P. W. 1 who was on the terrace at the relevant time. She came down on hearing the quarrel. When she came down, she saw the incident from the stage when accused came from his house with an open gupti and inflicted two blows on her mother. P. W. 11 is the elder sister of P. W. 1 who was on the terrace at the relevant time. She came down on hearing the quarrel. When she came down, she saw the incident from the stage when accused came from his house with an open gupti and inflicted two blows on her mother. The evidence of this witness is also required to be accepted as there is nothing in her cross-examination to reject her evidence. This witness has not seen the injury on the person of the accused. However, the witness has admitted in her cross-examination that she has seen iron pipe in the hand of her mother and the same was seen at the time when she saw the accused coming with open gupti. Even in the cross-examination, the fact appears to be extracted to the effect that she saw the accused coming with open gupti from his house and after coming gave two blows on her mother in which first caused abrasion on belly portion and the second caused stab wound on the right side of chest and caused death of her mother. Evidence of these witnesses, viz. , P. W. 1 and 11 is further corroborated by the evidence of P. W. 12, Shaligram, who is the uncle of P. W. 1 and 11. Shaligram is residing in that very flats with his wife at a distance of about 40-50 paces. The day being of uttarayan, he and his wife had proceeded towards the house of the deceased by about 5-00 p. m. , to call on their brother and brothers wife (deceased ). His bhabhi was standing on the ota and on the surrounding ota other persons were standing. On hearing the noise of his nephew, they rushed towards that house. When they reached near, they saw the accused coming out of his house with a gupti and rushing towards the house of his brother. They also tried to run and thereafter accused inflicted gupti blow on his bhabhi and ran away. The said blow was on the upper part of the chest and right side. His bhabhi has fallen down. Nothing has been extracted in the cross examination of this witness except an allegation that he was doing liquor business. To show the same, one First Information Report against this witness and others was produced on record. The said blow was on the upper part of the chest and right side. His bhabhi has fallen down. Nothing has been extracted in the cross examination of this witness except an allegation that he was doing liquor business. To show the same, one First Information Report against this witness and others was produced on record. However, that F. I. R. refers to the incident of June 1990, i. e. , subsequent to the date of the incident. This apart, evidence of this witness is challenged on the ground that he is a chance witness. Ordinarily, he was not expected to be there and yet he was shown to be there and he is a got up witness. We do not find any substance in this contention because it is not disputed that this witness is ordinarily a resident of that very locality and at a distance of about 40-50 paces away from the house of the deceased. The day was a holiday and normally younger brother may visit the house of elder brother on that day. Time of 5-15 evening is normally a time for visits. Therefore, we do not agree with the contention that the witness is a chance witness and his evidence should be rejected. Thus, from the evidence of these three witnesses, it is proved and rightly accepted by the learned Assistant Sessions Judge that the accused inflicted gupti blow on the person of the accused. First blow caused abrasion on belly and second blow was a stab wound on the upper right side between collar bone and rib which caused death of the deceased. ( 7 ) LEARNED Advocate Mr. Budhbhatti has also contended that P. W. 12 has not referred to the injury of the accused and therefore, his evidence should not be accepted. P. W. 1 and 11 have referred to the injury on the person of the accused and they also stated as to how that injury was caused. Therefore, it cannot be said that the prosecution has not explained that injury. ( 8 ) LEARNED Advocate Mr. Budhbhatti has contended before us that the case of the appellant in the facts and circumstances of the case would fall within the exception 2 to Sec. 300 and at the most the offence would be under Sec. 304 Part ii of Indian Penal Code. ( 8 ) LEARNED Advocate Mr. Budhbhatti has contended before us that the case of the appellant in the facts and circumstances of the case would fall within the exception 2 to Sec. 300 and at the most the offence would be under Sec. 304 Part ii of Indian Penal Code. This argument is advanced by him on the assumption that the appellant-accused has exceeded in his self-defence. He had contended that the accused has not exceeded his self-defence and therefore, he should get clear acquittal. But the above argument is in the alternative. Section 96 of the Indian Penal Code provides that nothing is an offence which is done in the exercise of the right of private defence. Therefore, the question in the present case is whether the act of accused is done in the exercise of right of private defence. Section 100 of the Indian Penal code provides as to when the right of private defence of the body extends to causing death. The same reads as under :"100. The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of right be of any of the descriptions hereinafter enumerated, namely : first - Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; secondly - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; thirdly - An assault with the intention of committing rape; fourthly - An assault with the intention of gratifying unnatural lust; fifthly - An assault with the intention of kidnapping or abducting; sixthly - An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. "exception 2 to Sec. 300 reads as under :"exception 2 : Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. "what is to be considered in the present case is whether a right of private defence has arisen to the accused in the instant case. Are circumstances so suggestive that accused got a right to private defence ? ( 9 ) PRIVATE defence can be shown or established by the defence Advocate or accused by either leading defence witness or by making certain suggestions in the cross-examination. The same can equally be shown from the prosecution witness itself. It is not necessary that to establish private defence, accused should lead evidence. The accused can either suggest in the cross-examination, which if are acceptable to the Court or if the accused is able to make out a case of private defence in the prosecution evidence itself, the Court can rely on it and give the benefit to show that the case of the accused falls within any of the Exceptions in the Indian penal Code. In the instant case, before we appreciate this contention of Mr. Budhbhatti, it will be necessary to refer to, at the cost of repetition, the circumstances as are on record to find out whether it speaks of defence. The dispute arose because of catching of a kite in front of the houses of victim and the accused according to the prosecution. According to the accused, the incident took place because P. W. 1, son of the deceased was flying a kite in front of the house and the thread of the kite had fallen on the buffalo. From these two diverse facts, one fact emerges that P. W. 1 was between the houses of accused and the deceased. P. W. 1 was not on the terrace at the relevant time. The dispute arose because of either catching of kite or thread of the kite having fallen on buffalo. From these two diverse facts, one fact emerges that P. W. 1 was between the houses of accused and the deceased. P. W. 1 was not on the terrace at the relevant time. The dispute arose because of either catching of kite or thread of the kite having fallen on buffalo. Because of the dispute, it is say of P. W. 1 that when his mother intervened telling the accused not to take the name of her son, accused gave two slaps to P. W. 1. While according to the accused P. W. 1 gave him vulgar abuses which resulted into further quarrel. According to the prosecution, when the accused gave two slaps, mother of P. W. 1 came out and told the accused not to harass her son. At that point of time, accused went to his house, came out with a stick and gave blow to the mother of P. W. 1, i. e. , deceased. As a result thereof, deceased went to her house, came out with an iron pipe and gave a blow which fell on the head of accused. As a result of this, accused went to his house came out with a gupti and gave one blow to mother of P. W. 1, i. e. , deceased which was escaped by the deceased. However, it caused abrasion on belly portion and the accused gave another blow which came to be a fatal one. The case of the defence is that after P. W. 1 gave abuses, accused told P. W. 1 not to utter abuses, deceased came out from her house with an iron and gave a blow on his head. For the injury caused on the person of the accused, the accused filed a complaint which is on record at Ex. 49. Accused has not stated in his complaint as to how the victim came to be injured and who injured her. It is the case of the prosecution that as the deceased gave pipe blow on the head of the accused, accused went home, came out with a gupti and gave two blows, one caused abrasion and other turned out to be fatal. In our opinion, the facts which emerge for our consideration to consider self-defence are that at the time when the quarrel took place, neither the accused nor the deceased had with them any of the weapons. In our opinion, the facts which emerge for our consideration to consider self-defence are that at the time when the quarrel took place, neither the accused nor the deceased had with them any of the weapons. When accused came with a stick and injured the victim, victim went to the house and came out with a pipe and injured the accused. When the accused came to be injured, he went home, came out with a gupti and gave two blows on the deceased as a result of second blow, she died. Whether the right of private defence is accrued and if so, whether the same has not exceeded to fall within Exception under Sec. 300. It is necessary to show that the offender has not exceeded the right given to him by law and death is caused in exercise of such right, such right is exercised without premeditation and in exercise of private defence and without any intention of doing more harm than is necessary for the purpose of such defence. How one can decide whether there was no premeditation ? Absence of premeditation can be inferred from the circumstances on record. In case of sudden incident without any external assistance and without any lapse of time to think over the matter an act is committed, the same can be said to be without premeditation. In the instant case, one after other some act is committed. Accused says deceased gave him pipe blow. However, he does not say how victim is injured. To have self-defence, it is necessary at least to make out by evidence or otherwise that the blow was given by the accused or someone to defend the accused. Defence is silent as to how the deceased is injured and why. Thus, looking to the sequence of the events there is nothing to show absence of premeditation. Another requirement of Exception under sec. 300 is that the act must be without any intention of doing more harm than is necessary for the purpose of such defence. The accused has given two blows of gupti. When the victim escaped the first with some bruises on belly portion, second blow was given. It is in evidence that the victim has not left or has come down from the Ota of her house. She has not chased the accused when he rushed away to his house. The accused has given two blows of gupti. When the victim escaped the first with some bruises on belly portion, second blow was given. It is in evidence that the victim has not left or has come down from the Ota of her house. She has not chased the accused when he rushed away to his house. It was accused, who had gone to the house of the victim for which he had no reason to go. If he was serving water to the buffalo, he ought to have been there in his own house and was not required to go to the house of the deceased. Thus, from the facts proved by the prosecution, it is clear that it was accused who went to the house of the victim and the blows were exchanged. When the deceased escaped the first blow of gupti by simple bruise, another blow was given by the accused. This second blow makes it clear that the act of the accused was not without any intention of doing more harm than is necessary. Thus from the facts, it is clear that the case of the accused does not fall within the purview of Exception 2 of Sec. 300. ( 10 ) MR. Budhbhatti drew our attention to Exception 4 saying that the case of the accused may fall within the purview of Exception 4 to Sec. 300 of I. P. C. Exception 4 to Sec. 300 reads as under :"exception 4 : Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault. "to bring ones case within the purview of Exception 4, it is necessary to show from the record the following sequence of events : (1) There was sudden quarrel; (2) Quarrel generated heat of passion; (3) This passion resulted into fight; (4) This fight was without any premeditation; (5) No undue advantage is taken; (6) It is neither acted cruelly or in unusual manner;the question is whether there is material to prove that there was a sudden quarrel. In the instant case, the quarrel took place because of a kite, either for flying kite or for catching kite. Then, accused when told P. W. 1 to be careful, P. W. 1 hurled vulgar abuses. Accused, therefore gave two slaps to P. W. 1 having cried of slaps, his mother came out and told the accused not to harass P. W. 1. Accused in reply gave a stick blow to the deceased, who in her turn brought an iron pipe from her house and inflicted a blow on the head of the accused. Accused went to his house and returned with a gupti and inflicted two blows on the deceased. It is in evidence on record that the house of the accused is situated at a distance of about 40 to 50 feet from the scene of offence. There is common internal road in between the house of accused and deceased. The complaint registered by the accused against the deceased is silent about the injuries on the person of the deceased. When the incident took place in the sequence above, this cannot be said a sudden quarrel and in the heat of passion, a sudden fight. Neither the quarrel was sudden nor heat of passion had generated and sudden fight therefor. After every event there is time gap and the weapons are brought from the house. The case would have been different if such a quarrel has taken place and accused had with him at the relevant time gupti and had used the same. Here, the accused first goes to his house and brings stick and inflicts blow thereof on deceased. When he retaliated pipe, he is again by goes back to his house and comes back with gupti from the house and inflicts two blows on the deceased. Thus, this suggests presence of premeditation in the mind of the accused. It cannot be said that there generated heat of passion and sudden fight took place. In addition to the above, further requirement of Exception 4 is that the accused should not have taken undue advantage or acted in cruel or unusual manner. Thus, this suggests presence of premeditation in the mind of the accused. It cannot be said that there generated heat of passion and sudden fight took place. In addition to the above, further requirement of Exception 4 is that the accused should not have taken undue advantage or acted in cruel or unusual manner. If one looks again to the sequence of events, for a petty quarrel on catching a kite or flying a kite, use of stick and gupti in return to a pipe blow, cannot be said to be not taking undue advantage or acting in a cruel manner. Premeditation and/or cruel manner can be inferred when unarmed persons get armed with stick and gupti in return to pipe blow. This sequence suggests that the accused has acted in unusual manner and also in a cruel manner. ( 11 ) IN the instant case, neither there is any suggestion in evidence nor any material on record to show that the deceased has come down from Ota of her house. Despite this, accused went to his house and came back with gupti and inflicted two blows on her. There is nothing to show continuity of any danger to accused. There is not a slightest suggestion to the effect that the accused was chased by the victim as a result apprehension of danger had continued. Thus, in our opinion, the question of private defence has not at all arisen in the instance case. ( 12 ) MR. Budhbhatti in support of his contention has relied on a judgment of the supreme Court in the case of Yogendra Morarji v. State of Gujarat ( AIR 1980 SC 660 ). To appreciate this precedent, it will be relevant to refer to the facts of that case which were set out in para 2 and 3 of the judgment, which read as under :"2. The prosecution case, as it emerged finally from the evidence on record, was as follows : appellant is a businessman residing in Bombay. His native village is Bhuj in the state of Gujarat. There is a village Raydhanpar at a distance of 8 miles from Bhuj. Appellant purchased some lands in the area of Raydhanpar. He employed one Malshi as his Manager to look after the land. Malshi lived in a rented house in Raydhanpar. Whenever the appellant used to be in Bhuj, he ordinarily visited Raydhanpur also. There is a village Raydhanpar at a distance of 8 miles from Bhuj. Appellant purchased some lands in the area of Raydhanpar. He employed one Malshi as his Manager to look after the land. Malshi lived in a rented house in Raydhanpar. Whenever the appellant used to be in Bhuj, he ordinarily visited Raydhanpur also. The appellant was taking steps to improve and develop his lands. For that purpose, he planned to construct wells in the lands. The construction of two wells had been completed. For sinking the third well, he employed Ravudan (P. W. 3), Rata (P. W. 5) and Arjan, residents of village Raydhanpar. Ravudan and his associates contracted with the appellant to sink the well. Ravudan was to be paid Rs. 15. 00 per foot for digging the well. An agreement for carrying out this work was drawn up and executed between Ravudan and the appellant. Kana deceased was employed by the appellant to quarry stones from a nearby hill to supply the same at the site- Ravudan and his associates dug the well upto a depth of about 10 feet, but could not continue the work further, because according to them, hard rock had appeared at that depth. Dispute arose between Ravudan and others on one hand and the appellant on the other. Ravudan and his associates were demanding higher charges. Kana was also demanding Rs. 60. 00 from the appellant as his dues. The appellant, however, took up the stand that nothing was due from him to Kana because the latter had already received an over-payment of Rs. 180. 00. 3. On 30/07/1970, the appellant visited Raydhanpar. In the evening at about 8 p. m. , he was in the house of his Manager, Malshi. Malshi was not there but his wife, Lakshmi and children were there. According to the prosecution story, as narrated at the trial, Ravudan, Rata and Arjan went to the appellant in the house of Malshi and demanded payment of their dues. According to the F. I. R. which was lodged by khima (P. W. 2), the Police Patel of the village, he was also present in the house of Malshi along with Ravudan, Rata and Arjan when they pressed the appellant for payment of their dues. Although, at the trial, Khima has changed that version, Kana owed Rs. 40. 00 his first cousin, Khima (P. W. 2 ). Although, at the trial, Khima has changed that version, Kana owed Rs. 40. 00 his first cousin, Khima (P. W. 2 ). Khima was pressing Kana for payment of that amount. Kana, in turn, told Khima that he would clear that loan after recovering Rs. 60. 00 from the appellant. When the aforesaid persons demanded payment of their dues, the appellant refused to pay, insisting that nothing was due from him and he curtly asked them to quit the house. According to the prosecution story at the trial, when Ravudan, Rata and Arjan came out of the house, Khima told them that he had good relations with the appellant and he would persuade him to pay their dues. After about one and a quarter hour, the appellant started his jeep which had been parked in the Vada of Malshi for going to Bhuj. Khima, Kana, Ravudan, rata and Wala waited at a distance of about 250 feet from the Vada of Malshi on the road leading to Bhuj. At about 9-30 p. m. , they saw the jeep with lights on coming from the Vada of Malshi. Khima and Kana raised their arms signalling to the appellant to stop the vehicle, while their companions also came close to the jeep. On seeing these five men on the road, the appellant took out his revolver and fired three shots one after the other. Two of those shots did not hit anybody but the third shot fired by the appellant hit Kana in the chest. The appellant then sped off in his vehicle to Bhuj. Immediately after the firing, many persons including the Harijans from the locality collected at the spot. A cart was brought and Kana was removed in it to the Civil Hospital, Bhuj where he was found dead. "from these facts, it is clear that when the appellant started his jeep going to Bhuj, those persons waited at a distance of 250 feet from the Vada of Malshi on the road leading to Bhuj. At about 9-30 p. m. , when they saw the jeep with lights on coming from the Vada of Malshi, Khima and Kana raised their arms signalling to the appellant to stop the vehicle and while their companions also came close to the jeep. At about 9-30 p. m. , when they saw the jeep with lights on coming from the Vada of Malshi, Khima and Kana raised their arms signalling to the appellant to stop the vehicle and while their companions also came close to the jeep. On seeing these five men on the road, the appellant took out his revolver and fired three shots one after the other. Two of the shots did not hit anybody but the third shot fired by the appellant hit Kana in the chest. The facts are so eloquent that when the appellant returned by 9-30 p. m. , to Bhuj from village Raydhanpar, persons who have demanded money from the appellant were in wait with arms which would lead to a reasonable apprehension of danger to his person. Keeping these facts of the case, the Supreme Court has held in para 37 as under :"in the circumstances, as soon as Khima and Kana raised their hands to stop the jeep of the accused and then tried to follow and close on it, it was not unreasonable for the accused to apprehend some physical harm at their hands. Therefore, under sec. 102, Indian Penal Code, a right of private defence of the body had accrued to the accused. "the facts of the present case are neither similar nor identical with that of the case of Yogendra Morarji (supra ). ( 13 ) WE do not dispute the proposition, and we are in agreement that burden of establishing guilt of the accused is always on the prosecution and it never shifts. The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances prevailing in the case. He may adduce the evidence in support of his plea or rely on the prosecution case itself or bring on record such circumstances by way of cross-examination. On examination of such material if reasonable doubt arises, the benefit should go to the accused. Keeping this proposition in mind, we may now deal with the authorities cited by Mr. Budhbhatti in the case of Vijayee Singh v. State of U. P. , ( AIR 1990 SC 1459 ). The facts of the said case as stated in para 1 are as under :"on 29-5-1981 at about 8 a. m. , a grave rioting took place in the village of Tirro varanasi District. Budhbhatti in the case of Vijayee Singh v. State of U. P. , ( AIR 1990 SC 1459 ). The facts of the said case as stated in para 1 are as under :"on 29-5-1981 at about 8 a. m. , a grave rioting took place in the village of Tirro varanasi District. In the course of the said rioting two persons Mahendra Singh and virendra Singh deceased Nos. 1 and 2 were killed and Vijay Narain Singh, P. W. 1, uma Shankar Singh, P. W. 2 and one Kailash Singh received injuries. In respect of these offences 14 accused were tried under Secs. 148 and 302 read with Sec. 149, i. P. C. Chirkut Singh, accused No. 6 was tried for offence punishable under Sec. 307, i. P. C. for attempting to commit the murder of P. W. 1 and the remaining accused under Sec. 307 read with Sec. 149, I. P. C. for causing injuries to Uma Shankar Singh, p. W. 2 and Kailash Singh. It is alleged that the material prosecution witnesses, deceased persons and the accused belong to the same village. Since 1972 there have been disputes between these two rival groups. A number of cases were also pending in the Courts. On the day of occurrence at 8 a. m. , P. W. 1 went to his pumping set. P. W. 2 Uma Shankar Singh and his relation Kailash Singh were also at the pumping set. Deceased Nos. 1 and 2 were proceeding along with the rasta towards the pumping set for taking bath. When they reached near the Khandar (old building) of Vijay pratap Singh Accused No. 5 Lallan Singh exhorted the other accused who were all lying in wait to kill them. All the 14 accused emerged out of the Khandar. Out of them accused Nos. 1, 3, 4 and 6 (accused Nos. are being referred to as arrayed before the trial Court) were armed with guns and the rest were armed with lathis. They advanced towards deceased Nos. 1 and 2. Accused No. 1 fired a shot which hit deceased No. 1 and he was immediately also shot at by accused No. 3 Ranjit Singh and he fell down. In the meanwhile accused No. 4 Ram Briksh Singh fired at deceased No. 2 Virendra Singh who fell down and both deceased died on the spot. 1 and 2. Accused No. 1 fired a shot which hit deceased No. 1 and he was immediately also shot at by accused No. 3 Ranjit Singh and he fell down. In the meanwhile accused No. 4 Ram Briksh Singh fired at deceased No. 2 Virendra Singh who fell down and both deceased died on the spot. The other accused carrying lathis advanced towards P. W. 1 who ducked and escaped uphurt. Then the lathis-wielding accused assaulted P. W. 1 Vijay Narain Singh, P. W. 2 Uma Shankar Singh and Kailash Singh. P. W. 1 managed to escape and ran away. "relevant observations for our purpose are as under :"the maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. Section 105 places "burden of proof" on the accused in the first part and in the second part we find a presumption which the Court can draw regarding the absence of the circumstances which presumption is always rebuttable. Therefore, taking the section as a whole the burden of proof and the presumption have to be considered together. It is axiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises. But where the accused introduces material to displace the presumption which may affect the prosecution case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt. The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised. More so when there are circumstances on the record (gathered from the prosecution evidence, chief and cross- examinations, probabilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise) creating a reasonable doubt about the existence of the ingredients of the offence. In case of such a reasonable doubt, the Court has to give the benefit of the same to the accused. The accused may also show on the basis of the material preponderance of probability in favour of his plea. In case of such a reasonable doubt, the Court has to give the benefit of the same to the accused. The accused may also show on the basis of the material preponderance of probability in favour of his plea. If there are absolutely no circumstances at all in favour of the existence of such an exception then the rest of the enquiry does not arise in spite of a mere plea being raised. But if the accused succeeds in creating reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part under Sec. 105 gets discharged and he would be entitled to an acquittal. 28. There is a difference between a flimsy or fantastic plea which is to be rejected altogether. But a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version indirectly succeeds. The doubt which the law contemplates is certainly not that of a weak or unduly vacillating, capricious, indolent, drowsy or confused mind. It must be the doubt of the prudent man who is assumed to possess the capacity to "separate the chaff from the grain". It is the doubt of a reasonable, astute and altert mind arrived at after due application of mind to every relevant circumstances of the case appearing from the evidence. It is not a doubt which occurs to a wavering mind. "here, in the present case, the facts are altogether different. The incident is not integrated one. The incident has sequence of events one after another. If events would be one part of integrated event and not separable or divisible, then the situation would have been otherwise. As referred to earlier, first slap is given to P. W. 1 on the allegation that he gave filthy abuses. When the mother of P. W. 1 intervened, accused gave stick blow to the mother of P. W. 1. At the relevant time, accused had no stick with him, but he had gone home and brought one. When the mother of P. W. 1 was given a stick blow, she had no weapon with her and she went in her house and brought an iron pipe and gave an iron pipe blow on the accused. Accused had no gupti at the relevant time with him. When the mother of P. W. 1 was given a stick blow, she had no weapon with her and she went in her house and brought an iron pipe and gave an iron pipe blow on the accused. Accused had no gupti at the relevant time with him. After being injured by iron pipe, he went home and came back with a gupti and gave two blows, one having escaped gave another. Thus, the incident has not been sudden where things occurred in heat of passion. Going home and bringing stick and again going home and bringing gupti shows that the incident is neither sudden one nor without premeditation. Thus, the principle laid down in the case of Vijayee Singh (supra) is not attracted in the facts of the present case. ( 14 ) MR. Budhbhatti has relied on a judgment of this Court in the case of govindbhai M. Raval v. State of Gujarat, [ 1997 (2) GLH 302 ] where one of us (myself) was a party. The relevant observations read as under :"9. Learned A. P. P. , Mr. K. P. Raval tried to salvage the situation by reading the complaint and some part of the evidence of the prosecution witness Nos. 2, 5 and 7. Learned A. P. P. , Mr. Raval drew our attention to the facts stated in the complaint (free translations) "i do not know how Govindbhai Maganbhai Raval is injured. However, he was bleeding. " Though it is so stated in the complaint, neither of P. W. 2, P. W. 5 or p. W. 7 stated in the examination-in-chief that appellant No. 1 and accused No. 2 were injured. In the cross-examination, P. W. 2 has stated that "he has no knowledge and, therefore, he has no explanation whether there were 6 injuries on the person of accused No. 1 and said injuries were bleeding. I do not know that accused No. 2 had injury on the head and it was bleeding. Neither my father nor my brother nor I had assaulted accused No. 2. " Thus, P. W. 2 has not only not given any explanation about the injuries on the persons of accused Nos. 1 and 2 but has pleaded ignorance as to injuries and bleeding before the Court. P. W. 5 has also not stated anything about the injuries on the person of accused Nos. " Thus, P. W. 2 has not only not given any explanation about the injuries on the persons of accused Nos. 1 and 2 but has pleaded ignorance as to injuries and bleeding before the Court. P. W. 5 has also not stated anything about the injuries on the person of accused Nos. 1 and 2 in examination-in-chief. However, he has denied the suggestion that his brother and father had attacked accused No. 1 and beat him. He has also denied that accused No. 2 when intervened, was also beaten. It is also denied that when his father and brother were beating accused No. 1, accused No. 1 snatched away dhariya from his hand. He has also denied that to escape from the beating, accused No. 1 hit Paniya to his father. He pleads ignorance as to three wounds on the head of accused No. 1. He pleads ignorance about the injuries on the back of accused No. 1. He pleads ignorance as to injury by dhariya on the head of accused No. 2 and bleeding therefrom. P. W. 7 has also not referred to injuries on the person of accused Nos. 1 and 2 in her examination-in-chief and the cross- examination, she has deposed that it has not so happened that I beat some one in this quarrel. I do not remember that I have stated in my statement before police that Arvind intervened to rescue and Jayantibhai (accused No. 4) gave a stick blow. From the evidence of joitabhai Motibhai (P. W. 8), it is proved that P. W. 2 has stated in the complaint that "i do not know how Govindbhai Maganbhai Rawal was injured at the time of this quarrel. However, he was bleeding. " Thus, when it is proved by the defence that accused Nos. 1 and 2 were injured during the course and accused No. 1 had as many as six injuries and accused No. 2 had injury on the head, the same has not been explained by the prosecution witnesses. This, suggests and makes us to lead to the conclusion that the prosecution witnesses are suppressing the genesis of the case. When the prosecution witnesses are not coming with correct genesis before the Court it is difficult to disbelieve the case of the defence. This, suggests and makes us to lead to the conclusion that the prosecution witnesses are suppressing the genesis of the case. When the prosecution witnesses are not coming with correct genesis before the Court it is difficult to disbelieve the case of the defence. Thus, the evidence of prosecution witnesses, in our opinion, being of related and interested witnesses, the say of the accused renders it more probable and the case of the prosecution becomes doubtful. Thus, when the case of the accused is that in self-defence, he has injured deceased Shankar, that case becomes probable, then it is necessary to decide whether he had exceeded the right of self-defence or not. "in that case, the facts squarely brought in the application of the provisions of selfdefence, which in our opinion are not applicable to the present case. ( 15 ) MR. K. C. Shah, learned A. P. P. , has relied on a decision of the Supreme court in the case State of J and K v. Hazara Singh ( AIR 1981 SC 451 ) wherein the supreme Court has observed aunder :"it is thus clear that the gun firing at the deceased who at the relevant time was not carrying any arm, nor even a stone, was a retaliatory action. It is trite law that the right of private defence is a defensive right. It is neither a right of aggression, nor of reprisal. "so also in the instant case, the accused went home and brought stick and assaulted the victim. When the victim retaliated the accused with iron pipe, the accused went home and came with gupti and assaulted the victim and not satisfied with first blow inflicted second, a fatal one. Thus, the act of the accused is an act of aggression and reprisal. It is not an act in defence much less right of private defence. ( 16 ) IN view of the above discussion, we do not find any favour with any of the arguments advanced by Mr. Budhbhatti. The appeal is liable to fail and is hereby dismissed. .