JUDGMENT 1. - This appeal is directed against the judgment dated 19.1.1982 passed by learned Sessions Judge, Bikaner convicting the accused appellant of offence under Section 304 Part-I I.RC. and sentencing him to 4 years Rl and to pay a fine of Rs. 500/- and in default of payment, to further undergo 4 month's Rl. 2. The prosecution case is that deceased Ahmed was having illicit relations with RW. 8 Smt. Bal Kanwar W/o accused Narayan Singh. On 31st July, 1980 at about 12 or 1 p.m. on hearing the cry, Sakina mother of the deceased wife of Ahmed Bashira and daughter Gulshan reached to the spot. It was disclosed that 3 accused persons namely, Narayan Singh, Bhanwar Singh and Deep Singh were giving beating to Ahmed with Barchi, Lathi and Kuihadi. Inspite of intervention of Mst. Sakina, the accused persons did not stop giving beating. Sakina and Gulshan took Ahmed in the house, where he succumbed to the injuries. The case was registered at Police Station Nokha for offence under Section 302 I.RC. The autopsy was conducted by Dr. Nathmal RW. 1. He found following injuries on the person of decesed Ahmed vide Post-Mortem Report Ex. 1 - 1. Lacerated wound 3 cm.xl cm. right leg mid region. 2. Echymosis redish 7 cm.x4 cm. right arm mid region interior. 3. Abrasion redish 6 cm.x3 cm. right side outer side. 4. Echymosis redish 3 cm.xl cm. below right iower lid. 5. Echymosis redish 2 cm.xl cm. right sterno clavicular joint region. 6. Echymosis redish 3 cm.x11/2 cm. left arm upper ⅓ outer side. 7. Echymosis 4 cm.x3 cm. left apex region. 8. Exhymosis 12 cm.x6 cm. obliquly left chest wall posterior alongwith infangle. 9. Echymosis 12 cm.x6 cm. interoscapula region & right chest wall lower column. 10. Lacerated wound 4 cm.x2 cm. x 1/4 cm. right frontal region. 11. Lacerated wound 3 cm.x2 cm.x 1/2 cm. left perital region & temporal. 12. Echymosis 10 cm.x6 cm. right illiac fossa. In the opinion of the doctor, the cause of death was Coma as a result of Sub-Duration Heematoma and multiple injuries. After usual investigation, the Police laid chargesheet against the appellant and two others namely Deep Singh and Bhanwar of offence under Section 302, 302/34 & 379 I.P.C. 3. The prosecution, in its support examined 9 witnesses and produced certain documents. After usual investigation, the Police laid chargesheet against the appellant and two others namely Deep Singh and Bhanwar of offence under Section 302, 302/34 & 379 I.P.C. 3. The prosecution, in its support examined 9 witnesses and produced certain documents. The accused in his statement under Section 313 Criminal Procedure Code stated that on 31st July, 1980 he left Bikaner after completing his duty. He reached to his house at about 11.30-12.00 p.m. in the night. On entering in the house, he saw accused Ahmed committing rape on his wife. He immediately lifted the Danda lying there and gave 2-4 blow to Ahmed. Ahmed left for his house. He also stated that he acted so out of anger. Two witnesses namely, Mangha Singh DW/1 & Asu Singh DW/2 were produced to prove the plea of alibi of second and third accused plea of alibi before the Trial Court. 4. The prosecution examined RW. 2 Smt. Sakina, RW. 5 Mst. Bashira and P.W. 7 Mst. Gulshan as eye witnesses. However, the learned Judge disbelieved the eye witnesses and found that the defence plea of the accused is corroborated by the statement of RW. 8 Baikanwar wife of appellant Narayan Singh. She stated that the deceased Ahmed used to visit her and on the date of incident in the night about 12 p.m., she was sleeping with the deceased Ahmed and at that time her husband Narayan Singh arrived. Seeing him the deceased Ahmed stood up. However, her, husband accused Narayan Singh took up a lathi lying there and started beating to the deceased Ahmed. He also inflicted one lathi in her back. The learned Judge held that all the 12 injuries were caused by the accused appellant. However, the act was in exercise of right of private defence and as such while acquitting the accused appellant of offence under Section 302 I.P.C., convicted him of offence under Section 304 Part-1 I.RC. and sentenced as stated above. 5. Assailing the conviction of the appellant, it is contended by Mr. Doonger Singh that the learned Judge has failed to consider that plea of the accused is that seeing the accused with Is wife, he understood that he was committing rape on her. It is contended that the appellant caused only 2 or 4 injuries and it is only injury No. 11 which is said to be of grievous nature. Doonger Singh that the learned Judge has failed to consider that plea of the accused is that seeing the accused with Is wife, he understood that he was committing rape on her. It is contended that the appellant caused only 2 or 4 injuries and it is only injury No. 11 which is said to be of grievous nature. Thus, learned judge was wrong in holding the appellant responsible for causing all the 12 injuries on the person of deceased. Thus, the submission of the learned counsel for the appellant is that, it cannot be said that the fatal Injury was caused by the accused appellant. On the other hand it is contended by learned Addl. PP. that though the entire prosecution has been disbelieved, no right of private defence was available to the accused, as RW. 8 Mst. Balkanwar has stated that she was on friendly terms with deceased. Thus, the conviction of the appellant under Section 304(1) I.RC. does not call for interference. 6. I have considered the rival contentions. Reading of the statement of RW. 8 Mst. Balkanwar only indicates that there was a tacit consent in visit of deceased to her bed- room, but while appreciating the right of private defence, it is important to see how the accused understood when he saw the accused with his wife. The statement of the accused must be read as a whole. He has stated that he saw deceased committing rape on his wife. He picked up a danda lying there and inflicted 3 or 4 injuries. There are 12, injuries. Thus except 3 or 4 injuries rest of the injuries cannot be attributed to accused appellant. Hence, in my view it is a case, which is fully covered by Secs. 96, 97 read with Section 100 where the right of private defence is acceptable to the facts of the present case where the accused seen rape, having been committed on her wife, In view of this, the appellant is entitled to be acquitted.Appeal allowed. *******