JUDGMENT 1. - Learned Additional Sessions Judge, Raisinghnagar convicted the accused appellant under Section 302/34 Indian Penal Code and sentenced him to life imprisonment with a fine of Rs. 200/- and in default to undergo one month's rigorous imprisonment vide his judgment dated 30.6.95. The accused appellant has preferred this appeal against this conviction and sentence. 2. Briefly stated the case of the prosecution is that during the night in between 12.2.88 and 13.2.88 at 12.10 a.m. Jassa Singh came to police station Vijaynagar and lodged oral report to the effect that he was running a hotel at R.D.236. On 12.2.88 at about 5 p.m. he returned to his village and at 7.30 p.m. Amrik Singh while under intoxication started abusing his family. House of Amrik Singh was adjacent to the house of Jassa Singh, Jassa Singh and his father asked accused appellant not to abuse but he did not stop. Jassa Singh's father told him that camel cart of the accused appellant was engaged in transporting sand to Gurudwara but the same was removed and instead a camel cart of Jassa Singh's father was employed for the purpose. Therefore, Amrik Singh was unhappy and was abusing. Jassa Singh and his father went infront of the house of accused appellant to request him not to abuse and when both of them reached there Amrik Singh armed with lathi and his wife's brother Trilok Singh armed with sela (sharp edged weapon) came out of the house and Amrik Singh attacked on his father. He inflicted a lathi blow on the head of Jassa Singh's father with the result Jassa Singh's father Teja Singh fell on earth. Jassa Singh wanted to intervene and as soon as he raised his foot forward one Inder Singh also came from the house of Amrik Singh. Then Trilok Singh and Inder Singh attacked on Jassa Singh with the result Jasssa Singh received injuries on his shoulder, arm and little finger. Jassa Singh made hue and cry. Then Mahendra Singh and Tota Singh neighbourers came there running. They exhorted and then Amrik Singh became desparate and told that if anybody came near him he would kill him. Amrik Singh's wife Jogender Kaur and his daughter Bholi and another son Kala Singh also came from inside the house and started abusing and started pelting stones. Then Mahendra Singh and Tota Singh neighbourers came there running. They exhorted and then Amrik Singh became desparate and told that if anybody came near him he would kill him. Amrik Singh's wife Jogender Kaur and his daughter Bholi and another son Kala Singh also came from inside the house and started abusing and started pelting stones. Then Inder Singh and Trilok Singh took Teja Singh dragging from the place of occurrence inside their house. Jassa Singh then rushed to the police station and lodged report which was recorded by police as Ex.P/1. 3. A case under Sections 147, 148, 342, 307, 336, 323, 364 read with 149 Indian Penal Code was registered. Police went to the place of occurrence in the night and found that the dead body of Teja Singh was lying in the house of Amrik Singh. Site plan Ex.P/3 and memo Ex.P/3-A were prepared next day. Memo of dead body Ex.P,14 and panchayatnama Ex.P/5 were also prepared. A pair of chappals and a chaddar used as turban were recovered from the site and were seized vide Ex.P/6. Blood stained as well as control soil were seized. Injuries of Jassa Singh were examined. He was X-rayed. His injury report Ex.P/11, X-ray plate Ex.P/21 and X-ray report Ex.P/12 Are on record. Postmortem of Teja Singh was conducted and its report Ex.P/14 was obtained. Amrik Singh was arrested on 4.3088 and on the basis of his disclosure statement a 'banga' (lathi) of bamboo was recovered which was blood stained. Trilok Singh could not be arrested as he had absconded and after investigation Arnrik Singh and his wife Smt. Jogender Kaur were charge-sheetted before Munsif and Judicial Magistrate, Anupgarh who committed the case to the learned Additional Sessions Judge. Learned Additional Sessions Judge framed charges under Sections 148, 302/149 and 323/149 Indian Penal Code against both the accused persons and read over to them. They denied their indictment and claimed trial. Thereupon prosecution examined as many as 8 witnesses on its behalf. Then the accused appellant as well as co-accused were examined under Section 313 Cr.PC. A defence witness Tara Chand DW-1 was examined on their behalf. After hearing the parties, learned Additional Sessins Judge convicted the accused appellant and sentenced him as stated above but acquitted Smt. Jogender Kaur It is against this judgment of conviction that the accused appellant has preferred this appeal. 4. A defence witness Tara Chand DW-1 was examined on their behalf. After hearing the parties, learned Additional Sessins Judge convicted the accused appellant and sentenced him as stated above but acquitted Smt. Jogender Kaur It is against this judgment of conviction that the accused appellant has preferred this appeal. 4. We have heard the learned counsel for the accused appellant as well as learned Public Prosecutor in detail and have gone through the entire record of the case. 5. Learned counsel for the accused appellant submitted that from the evidence no case is made out against the accused appellant. He submitted that the occurrence took place in the house of accused appellant as the dead body of Teja Singh was found inside the room. He submitted that the defence of the accused appellant was that Teja Singh had entered in the house of accused appellant in order to outrage the modesty of Smt. Jogender Kaur and when he was doing so he was attacked and the act of the accused appellant is in the self defence. He submitted that the FIR is a bundle of lies and that Jassa Singh himself has admitted that he had named certain persons in it falsely. He also submitted that the prosecution is not in a position to prove the motive. He has prayed that the accused appellant deserves acquittal. In the alternative he submitted that at best the accused appellant can be held liable for the individual act which does not exceed beyond causing the simple injury as the allegation of the prosecution is that the accused appellant inflicted a lathi blow on the head of deceased. 6. On the other hand, learned Public Prosecutor has submitted that the occurrence took place in front of the house of accused appellant. When Jassa Singh and Teja Singh were being abused by the accused appellant he was under intoxication. When they reached there they were attacked and then Teja Singh fell down. He was dragged inside the room in order to create the theory of self defence. He has submitted that the police has investigated the case very minutely and the presence of cloths as well as pair of chappals outside the house of the accused appellant means that the occurrence had taken place there and not inside the room of the accused appellant. He has submitted that the police has investigated the case very minutely and the presence of cloths as well as pair of chappals outside the house of the accused appellant means that the occurrence had taken place there and not inside the room of the accused appellant. He submitted that the theory of defence is palpably false because the father and son both could not have gone together in order to outrage the modesty of Smt. Jogender Kaur. He also submitted that there might be exaggeration in two statements of Jassa Singh but Jassa Singh has corrected himself. He further submitted that there are other eye witnesses to the occurrence who are reliable and have proved that it was accused appellant Amrik Singh who inflicted lathi blow on the head of deceased and it was the other accused Trilok Singh (who is absconding) who caused other injuries on the body of Teja Singh. He submitted that according to the postmortem report, the deceased died due to the injuries inflicted during this incident. As such, according to him, the accused appellant is also responsible for the murder of Teja Singh. He, therefore, submitted that the appeal should be dismissed. 7. We have first to ascertain the place of occurrence because the theory of defence is that deceased had gone in the house of the accused appellant to outrage the modester his wife Jogender Kaur and accused persons caused injuries to him in defence. Prosecution has examined three eye witnesses in the case and the matter was investigated in minute details by the Investigating Officer. The site plan Ex.P 3 was prepared by PW 6 Chhaganlal, Investigating Officer, on 13.2.88. He has deposed that when he reached at the site immediately after the occurrence he found that the dead body of Teja Singh was found in a Kotha of Amrik Singh where the occupants of the house were not available. The report was lodged at 12.10 a.m. and the Investigating Officer PW 6 Chhaganlal, after getting Jassa Singh medically examined, reached at the section the same night. Site Plan Ex.P. 3 and the memo Ex.P. 3-A were also prepared by him next morning. The Investigating Officer, when he inspected the site in the morning, found blood at place 'A' which is the kotha where dead body of deceased was lying. Site Plan Ex.P. 3 and the memo Ex.P. 3-A were also prepared by him next morning. The Investigating Officer, when he inspected the site in the morning, found blood at place 'A' which is the kotha where dead body of deceased was lying. He found a turban of the deceased at place 'B' and 'pair of chappals of deceased at place 'C' and a torn chaddar of deceased at place 'D'. Another piece of chaddar was found at place 'E' which is the court yard outside the kotha 'A'. The places mentioned as 'B', 'C' and 'D' are the open place and at quite a distance from kotha 'A' where the dead body was found. Injured eye-witness PW 2 Jassa Singh has stated that deceased was attacked by the accused appellant near the house of Amrik Singh when Teja Singh was going to his shop. This is a open place and according to this witness the occurrence took place at this open place. PW 3 Mahendra Singh, an independent eye-witness, has also stated that when Teja Singh was going through the 'bakhal' he heard the noise of Jassa Singh that Teja Singh had been attacked. According to PW 4 Raj Kaur the incident took place in the open place. She has stated that her father-in-law (Teja Singh) was taken inside the Kotha and according to PW 2 Jassa Singh when Teja Singh was being dragged towards the kotha he rushed to the police station. Of course the Investigating Officer has admitted that at place 'X' he did not find any blood stains but he did find some signs of scuffle. He had gone to the site early in the morning before the sun rise and prepared the site plan Ex.P. 3. This proves that Teja Singh was attacked in the open place shown at 'X' in site plan Ex.P. 3. Jassa singh was also beaten there and as soon as his father Teja Singh was dragged in the Kotha he rushed from the place of occurrence to the police station to report the matter. The fact of dragging the body of deceased by Inder Singh and Trilok Singh inside court yard is mentioned in the FIR Ex.D. 1. The aforesaid fact mentioned in the FIR is corroborated by PW 2 Jassa Singh. The fact of dragging the body of deceased by Inder Singh and Trilok Singh inside court yard is mentioned in the FIR Ex.D. 1. The aforesaid fact mentioned in the FIR is corroborated by PW 2 Jassa Singh. Thus it is well proved that the occurrence took place in the open place when Teja Singh was attacked by a 'banga' (lathi) which was inflicted by Amrik Singh on his head. 8. Therefore, the theory of defence that Teja Singh had entered in the house of accused appellant to outrage the modesty of Jogendra Kaur is not believable and frivolous. It is not believable because Jassa Signh and his father Teja Singh both could not have gone together inside the house of Amrik Singh to outrage the modesty of Jogender Kaur as they were son and father. The case of the defence as put to the 'prosecution witnesses was that Trilok Singh came into the room where deceased was outraging the modesty of Jogender Kaur. It may be stated that in presence of Trilok Singh the i deceased could not have dared to do this nefarious act. It is not known as to wherefrom Trilok Singh had come. If he was already present in the room, definitely the deceased could not have tried to outrage modesty of Smt. Jogender Kaur. No report regarding outraging the modesty of Smt. Jogender Kaur or attempt to rape was lodged to the police station. It is proved that it was accused appellant who was aggressor. An aggressor has no right of private defence (see Pammi v. Govt. of M.P., (1998) 2 SCC 700 ). However we will discuss in the later part of this judgment about the right of private defence under Sections 97 and 100 of Indian Penal Coder 9. The next question is whether an unlawful assembly was formed. What is an unlawful assembly ? Section 141 of the Indian Penal Code defines unlawful assembly. An assembly can be called unlawful only when it consists of five or more persons having one of the five specified objects mentioned in Section 141 IPC. It means that there must be more than 4 persons having common object before committing any crime punishable under this section. Section 141 of the Indian Penal Code defines unlawful assembly. An assembly can be called unlawful only when it consists of five or more persons having one of the five specified objects mentioned in Section 141 IPC. It means that there must be more than 4 persons having common object before committing any crime punishable under this section. Learned counsel for the defence has submitted that the learned Sessions Judge did not find the formation of an unlawful assembly proved because the number of persons as alleged by the prosecution was lesser. He has drawn our attention to the statement of the PW 2 Jassa Singh. According to Jassa Singh Amrik Singh, Trilok Singh and Inder Singh were the persons who took an active part in the incident but no challan was submitted against Inder Singh. So far as Jogender Kaur is concerned, the FIR did not mention any active role played by her. According to PW 2 Jassa Singh, it were Amrik Singh and Trilok Singh who started hurling abuses as both of them were under influence of alcohol. He has named Mahendra Singh who has not been challaned as the police did not find a case against him. It were only Trilok Singh, Amrik Singh and Jogender Kaur who were challaned out of whom Trilok Singh is still absconding. According to PW 2 Jassa Singh he did mention the name of Inder Singh who was armed with a gandasi. According to him even Mahendra Singh was also armed with gandasi. But we find that the FIR Ex.D. 1 and the police statement of this witness Ex.D. 2 do not mention the name of Mahendra Singh. So far as presence of Kala Singh and Mahendra Singh is concerned, the witness has stated that he did mention their names in the FIR and stated in his police statement that these persons were amongst the persons who dragged his father. But we find from his police statement Ex.D. 2 with which he was contradicted that the name of only Inder Singh appears therein. In nut shell the prosecution has not been able to prove that five or more persons did take part in the incident. As such we concur with the learned Sessions Judge that the prosecution has not been able to prove that any unlawful assembly was formed. 10. In nut shell the prosecution has not been able to prove that five or more persons did take part in the incident. As such we concur with the learned Sessions Judge that the prosecution has not been able to prove that any unlawful assembly was formed. 10. When formation of unlawful assembly is not proved, the question arises as to how accused appellant Amrik Singh can be held liable ? Learned counsel for the accused appellant submitted that he can be held liable only for his individual act. We do not agree with the aforesaid argument of learned counsel for appellant in view of law laid down by Apex Court in Jagir Singh & Ors. v. State of Punjab, AIR 1968 SC 43 . In our considered opinion the accused appellant could be convicted for 302 Indian Penal Code with the help of Section 34 of Indian Penal Code. The next question arises before us whether the prosecution has been able to prove homicidal death of deceased Teja Singh? 11. Prosecution examined Dr. Momanram PW 5 who conducted postmortem of deceased. The postmortem report is Ex.P. 14. The doctor found following injuries on the body of deceased (i) Lacerated wound 21/2"xl/2"xbone deep on right parietal region. (ii) Incised wound 2"xl/4"xbone deep on the left martoid region and directed down-wards and forwards. (iii) Incised wound 3/4" x ⅛"x skin deep on the eternal surface of left ear. (iv) Stab wound 3/4"x 1/2"x3" with clean cut edges on the posterior side of right side of chest in the 7th intercostal space, and directed down-wards and outwards. 12. As per statement of PW 5 Dr. Momanram the cause of death of deceased as revealed by postmortem examination is due to hemorrhage and shock resulted from injury of the right lung and pleura. Learned counsel for the accused appellant submitted that accused appellant caused injury No. 1 i.e. lacerated wound 21/2"x 1/2"x bone deep on the right parietal region which was not sufficient in ordinary course of nature to cause death. We have examined the statement of PW 5 Dr. Momanram with great caution and care. PW 5 Dr. Momanram has deposed that on dissection of the body he found a lacerated wound and a cut wound on the right parietal region of the deceased. He also found penetrating wound on the right side of chest and the 8th rib was fractured. Momanram with great caution and care. PW 5 Dr. Momanram has deposed that on dissection of the body he found a lacerated wound and a cut wound on the right parietal region of the deceased. He also found penetrating wound on the right side of chest and the 8th rib was fractured. He also found that pleura of the right side was punctured and the right lung was also punctured. These internal injuries were the result of injury No. 4 which was a stab wound. On the basis of his statement we arrive at the conclusion that the death of deceased Teja Singh was homicidal. 13. The next question arises what was the role of accused appellant Amrik Singh. The three eye witnesses viz. PW 2 Jassa Singh, PW 3 Mahendra Singh and PW 4 Raj Kaur are very material in this respect. Learned counsel for the accused appellant submitted that Jassa Singh is the son of deceased while Rajkaur is his wife. Since they are relations of deceased they should not be believed. So far as related witnesses are concerned, we may refer to AIR 1981 SC 1390 , State of Rajasthan v. Smt. Kalki & Anr. , wherein it has been observed that related witness is not equivalent to interested witness. In this citation the widow of the deceased was held to be most natural witness. She was found to be the only person present in the hut with the deceased at the time of the occurrence and the only person who saw the occurrence. Although she was the wife of the deceased but she was not held to be an interested witness. It was held in the case of Smt. Kalki (supra) that she had no interest in protecting the real culprit and falsely implicating the accused. The law is that the evidence of the relative witness cannot be thrown merely because it is of a relation. We find from the evidence of these witnesses that they are most natural and they cannot be regarded as interested witnesses. They are most natural witnesses because they were present at the time of occurrence and they have seen the occurrence. PW 2 Jassa Singh is an injured eye-witness. When he went to the place of occurrence to protect his father, he was also assaulted. They are most natural witnesses because they were present at the time of occurrence and they have seen the occurrence. PW 2 Jassa Singh is an injured eye-witness. When he went to the place of occurrence to protect his father, he was also assaulted. His father, deceased Teja Singh, was dragged inside the court yard of the accused appellant and at that point of time he rushed to the police station to report the incident. So presence of Jassa Singh cannot be assailed. PW 2 Jassa Singh has stated that he saw that Amrik Singh gave, a `hanga' (lathi) blow on the head of deceased with the result that Teja Singh fell down. When this witness reached he was also assaulted. He saw that another accused Trilok Singh (who is absconding) was having a sela in his hand. He saw that Trilok Singh gave a sela blow on the back of Teja Singh. But it is ommitted in his police statement Ex.D. 1. However, he had seen the accused appellant inflicting the head injury by `banga' (lathi) on the head of Teja Singh. By the time the police came, Teja Singh was murdered and his dead body was found in the kotha of the accused appellant. Accused appellant or his wife were not present when the police came. So from the statement of PW 2 Jassa Singh we find it proved that it was accused appellant Amrik Singh who inflicted a lathi blow on the head of Teja Singh before this witness and in continuation of the same transaction this witness was assaulted by the accused and his companion. By the time the police and he came back, the deceased had succumbed to his injuries and his dead body was found in the kotha of the accused. There is none else who might have inflicted the fatal injuries to the deceased except Trilok Singh who is absconding. First it was accused appellant Amrik Singh who inflicted lathi blow on the head of deceased Teja Singh and thereafter he was dragged in kotha and was assaulted by sharp weapon. 14. PW 4 Raj Kaur stated on oath that Amrik Singh and Trilok Singh were under intoxication and they started hurling abuses on her father-in-law when he reached near their house. The admitted position is that there is a wall between two houses. 14. PW 4 Raj Kaur stated on oath that Amrik Singh and Trilok Singh were under intoxication and they started hurling abuses on her father-in-law when he reached near their house. The admitted position is that there is a wall between two houses. According to her, deceased Teja Singh asked these persons not to abuse. Teja Singh then went to purchase vegetables and as soon as he went out of his house, it was Amrik Singh who inflicted a `banga' (lathi) blow on the head of deceased. Teja Singh fell down. She has stated that Trilok Singh inflicted injuries to the deceased by barchhi. It was all in the same transaction. She stated that her husband PW 2 Jassa Singh intervened but he too was assaulted. She immediately went to the house of Bod Singh who came and asked Amrik Singh not to repeat the blows. Amrik Singh was desperate and threatened him and by that time Jassa Singh went to the police station. She has also stated that Teja Singh was dragged inside the house of the accused appellant and when police came the dead body of deceased Teja Singh was found in the house of accused appellant Amrik Singh. She was cross examined at length. She has stated that she did not go i to the police Station. The investigating officer has stated that it was only Jassa Singh who had come to the police station to report at 12.10. a.m. all alone. That means that Smt. Rajkaur PW 4 had not gone to the police station. Minor contradictions are natural when witnesses are examined after a long interval after the occurrence. The occurrence took place on 12.2.88 and Jacc Singh was examined by trial court on 14.2.94. Therefore, it is possible that he may not definitely remember that Rajkaur accompanied her at police station. But the real check was the FIR recorded by PW 6 Chhaganlal which does not mention the presence of the witness at police station and the fact of her not going there is proved by PW 6 Chhaganlal. She was present at the site except for a short period when she went to call Bohad Singh. She saw that Teja Singh was being dragged inside the house of the accused. She was present at the site except for a short period when she went to call Bohad Singh. She saw that Teja Singh was being dragged inside the house of the accused. It is thus proved from the statement of these two witnesses that it was Amrik Singh who gave 'banga' (lathi) blow on the head of Teja Singh who was dragged inside the court yard of the accused appellant. When police came in the night it found that dead body of Teja Singh in the kotha. The accused appellant and the co-accused dragged Teja Singh inside the house so that the prosecution may be slapped with the defence story of misbehaviour with the wife of Amrik Singh in order to save themselves. If the defence theory was correct, there was no necessity for the accused and his wife to run away from the house. They had run away, is proved by the investigating officer PW 6 Chhaganlal who reached in the night and did not find anybody in the house of the accused appellant. No report of any misbehaviour or attempt to rape on Mst. Jogender Kaur was lodged with the police. So the theory of defence appears to be an after thought. 15. It is PW 3 Mahendra Singh who appears to be an independent witness. He lives within the vicinity of the house of the deceased and the accused. According to him he was taking dinner when he heard the noise that Teja Singh was being assaulted. He and Bohad Singh went to the spot and found that Amrik Singh was beating Teja Singh. There was another man with the accused appellant (Trilok Singh). When Bohad Singh and this witness asked the accused appellant not to give beatings. they were threatened that in case they came forward, they would be killed. According to him at that time Jassa Singh went to the police station and the accused appellant and the co-accused dragged Teja Singh to the kotha of Amrik Singh. According to him the police came in the night and posted some policemen to protect the site and the SHO went away. During his cross examination he has stated that when police came the dead body of Teja Singh was found in the kotha of the accused appellant. According to him the police came in the night and posted some policemen to protect the site and the SHO went away. During his cross examination he has stated that when police came the dead body of Teja Singh was found in the kotha of the accused appellant. The case of defence itself iF that it was Trilok Singh who inflicted injuries with sharp edged weapon to deceased Teja Singh. During the cross examination it was suggested on behalf of the accused appellant that it was Trilok Singh who inflicted injuries on Teja Singh in the kotha. That means that the defence admits that co-accused Trilok Singh inflicted injuries with sharp weapon on the person of deceased. These witnesses prove that it was Amrik Singh who inflicted lathi blow on the head of deceased and then Teja Singh was dragged inside the kotha of the accused appellant. The case of the defence itself is that in the kotha it was Trilok Singh who inflicted injuries by sharp weapon on the person of Teja Singh. So when Teja Singh died due to injuries caused by sharp edged weapon which had caused excessive bleeding and hemorrhage, it was accused appellant Amrik Singh who shared the common intention to kill. The injuries by sharp edged weapon were such which accused knew that were sufficient in ordinary course of nature to cause death. The argument of-the learned counsel for the accused appellant that the accused appellant would be responsible only for his individual act is not acceptable. 16. The argument that motive has not been proved is baseless in as much as it is settled law that when there are eye witnesses to the occurrence motive is relegated to the back seat and Is nut required to he proved by prosecution agency. 17. So far as law on right of private defence is concerned, it may be stated at the cost of repetition that it is not available to an aggressor. An accused can take the plea of right of private defence within the meaning of Section 97 read with Section 100 Indian Penal Code only when the impending danger, real or apparent, is present. Thus it is needless to point out in this connection that the right of private defence is available only to an accused who is suddenly confronted with immediate necessity of averting an impending danger not of his own creation. Thus it is needless to point out in this connection that the right of private defence is available only to an accused who is suddenly confronted with immediate necessity of averting an impending danger not of his own creation. (See 1988 CrLJ page 188, Laxman Sahu v. State of Orissa ). 18. Learned PP cited 1996 Cr.LR (SC) 482, State of U.P. v. Zalim & Ors. wherein the facts were such that deceased took his shoe and aimed towards accused. Accused in turn dragged deceased to the middle of the road and asked another accused to cut off hand of deceased. Knife blow was inflicted which caused chesting pry. It was held that in such a case action of accused was not covered under right of private defence. 19. We have tried to locate cases of similar facts. The earliest citation which we could lay hands upon is Jhakri Chamar & Ors. v. Emperor, the CrL.J. Reports, Vol. 13, 1912 page 905 , wherein it was observed that right of private defence is a restricted right and Section 100 of the Penal Code has to be read subject to the provisions of Section 99 and when one man takes away the life of another man the onus is on him to show the circumstances which justify his act in law. But where the deceased was assaulted while he was in the very act of violating a woman by her relations, no question of burden of proof arises and the case falls within Section 100 even as qualified by Section 99. 20. In AIR 1934 Lahore 620, Mohammad Shafi v. Emperor , it was held that right of private defence of the body of the wife of the accused extends to the voluntary causing of death if the offence which occasioned the exercise of the right was an assault with the intention of committing rape. 21. In AIR 1933 Allahabad 213, Suraj Narain Lal v. Emperor , accused on seeing the deceased, whom he had befriended and brought up from infancy in his own household, lying on the top of accused's wife and trying to violate her, took a gandasa lying near by and struck the deceased a number of blows on his head as a result of which he died. It was held that though the right of private defence laid down in Section 100 is a restricted right and has to be read subject to the provisions of Section 99, still the action of the accused in this particular case is covered by clause (3) of Section 100 and that accused is entitled to an acquittal. This is a full bench judgment. 22. In 1992 Cr.L.J. 2779, Yeshwant Rao v. State of M.P. the facts before the Apex Court were such that the accused assaulted victim on seeing his minor daughter being sexually molested by him. In such a case the right of private defence was made acceptable. 23. In 1983 Cr.L.J. NOC 115 (Orissa), Kabi v. State of Orissa , the accused took the plea of private defence on the ground that deceased (brother of accused) was going to assault wife of accused with intention to commit rape on her. On scrutinising evidence, it was found that the defence plea was not true or probable, therefore, it was held that the accused was not entitled to benefit of Section 100(3) of the Indian Penal Code. 24. In view of above discussion, accused appellant is held to be an aggressor. There is no evidence of any impending danger, real or apparent on the record from which it could be inferred that accused appellant was entitled to assault the deceased in exercise of his right of private defence. There is no evidence of deflowering of Jogender Kaur or attempt to outrage her modesty. We are of definite view that story of right of private defence is not probable and as such the accused appellant is not entitled to claim right of private defence. The story of defence is false because the occurrence had started outside the house of the accused appellant and after inflicting head injury on the head of Teja Singh his body was dragged inside the kotah. We find the defence theory to be false hence it is not acceptable to us. We decline to interfere with judgment impugned rendered by learned trial court. 25. In view of above discussion, there is no force in this appeal and the same is dismissed. The finding of guilt recorded by learned trial judge and sentence awarded and fine imposed by him are hereby affirmed.Appeal Dismissed. *******