JUDGMENT 1. - Through this appeal under Section 374 Cr. PC., Gajanand, has called in question the judgment dated 25th September, 1999, of the learned Additional Sessions Judge No. 2, Bundi, whereby he convicted him under Section 302 I.PC. and sentenced to undergo imprisonment for life and pay a fine of Rs. 2,000/-. 2. The case relates to an occurrence, which took place on 22nd of April 1991, at 9.00 a.m. in village Bundi, in which death of Devi Lal was caused. The prosecution case, as unfolded in the F.I.R. Ex.P. 21 lodged by Kane, PW. 14, was that he and his brother Devi Lal (deceased) were in the field, when two persons Gajanand and Mahavir went there alongwith their goats and drove their cattle in their field, and as Devi Lal objected to it, the two accused caused injuries to him. It was stated that Gajanand was having an axe in his hand and he caused injury to Devi Lal on his head. On this report, a case under Section 307 IPC was registered. During the investigation. Devi Lal died and, therefore, Section 302 IPC was added. The police after completion of the investigation, submitted a challan against Gajanand and Mahavir. 3. Charges under Sections 302 and 302/34 IPC were framed against Gajanand and Mahavir respectively. The prosecution examined P.W. 1 Kesri Lal, P.W. 2 Lukman, P.W. 3 Shekh Navab, P.W. 4 Ramdeva, P.W. 5 Mangi Lal, P.W. 6 Dr. Navnit Vijay, P.W. 7 Birdi Lal, P.W. 8 Jai Shanker. P.W. 9 Rameshwar, P.W. 10 Ram Ratan, P.W. 11 Amod Kumar Mathur, P.W. 12, Prabhu Lal, PW. 13 Kana, P.W. 14 Abdul Aziz, P.W. 15 Chandra Bhan, and P.W. 16 Praveen Sharma. Accused in their statements under Section 313 Cr.P.C. denied accusation. They examined Dr. O.P. Verma in their defence. The trial Court holding that the charge against Mahavir was not proved beyond all reasonable doubts, acquitted him. The trial Judge finding that the injury caused by Gajanand was sufficient in the ordinary course of nature, held that the charge under Section 302 IPC was established. He, therefore, convicted and sentenced Gajanand as stated above. 4. Mr. Sharma, learned counsel for the appellant contended that the trial court has not properly appreciated the evidence and has erred in placing reliance on the evidence of Kana and Mahavir. He, therefore, convicted and sentenced Gajanand as stated above. 4. Mr. Sharma, learned counsel for the appellant contended that the trial court has not properly appreciated the evidence and has erred in placing reliance on the evidence of Kana and Mahavir. According to him Ramdeva was the only person, who had seen the occurrence and by his evidence it is established that Gajanand had to cause injury to Devi Lal while exercising his right of private defence. Citing some rulings of the Apex Court, he submitted that Gajanand is entitled to acquittal. 5. The learned Public Prosecutor tried to support the judgment. 6. We have gone through the evidence produced in the case. First, we may see whether Mangilal P.W. 5 had seen the occurrence. In the H.R. Ex.P 21, itself it was stated that Mangilal had reached the place of occurrence after the accused had gone away. It is thus obvious that Mangilal had not seen the occurrence. However, Mangilal deposes that as he was going from Khera Village to Dhanava on a cycle and he reached near the field of Devi Lal, he saw Gajanand causing an axe blow to Devi Lal. He then says that Mahavir had also caused injuries by wooden part of the axe to Devi Lal, in his cross-examination, he admits that he is cousin of Devi Lal deceased. He says that in his presence, Mahavir had given two three blows by wooden part of axe to Devi Lal, However, not a single injury caused by blunt weapon was noticed by the medical officer when he saw the injuries of Devi Lal. Since the evidence of this witness is not in conformity with the medical evidence, it has to be accepted that this witness had not seen the occurrence and he has given evidence because of his close relationship with the deceased. 7. Now, it is to be seen whether Kana P.W. 13 had seen the occurrence. Kana P.W. 13, who is the real brother of the deceased, disposes that he was in his field and harvesting the wheat crop when he saw that Gajanand and Mahavir entered his goats in the field of Devi Lal and when Devi Lal told them to take away the goats, they insisted that the goats would graze there and thereafter Gajanand inflicted an axe blow on the head of Devi Lal. He says that Mahavir had also caused injuries by the fists and legs and the wooden handle of the axe of Devi Lal. He further says that when he tried to intervene, Gajanand made an attempt to cause injury to him. 8. As already stated no injury of blunt object was found on the person Devi Lal. Obviously, Kana has given false statement, when he says that he had seen Mahavir causing injuries to Devi Lal. Apart from that this witness had not stated before the police during investigation that an attempt to cause injury to him was made by Gajanand. This fact was not stated by the witness even in the FIR. Ex.P 21. The witness had also not stated during investigation that Ramdeva had thrown some thing towards Mahavir and Gajanand during the occurrence, which fact he deposes before the trial court. This fact is not desposed by Ramdeva himself. All these facts clearly indicate that Kana had not seen the occurrence. It appears that he had reached the place of occurrence after Devi Lal had already sustained the injuries. In this connection, the statement of P.W. 4 Ramdeva is clear when he says that Kana had reached the place of occurrence after the fall of Devi Lal. The field of Kana was not adjacent to the field of Devi Lal. The site inspection memo Ex.P. 1 and the testimony of the investigating officer show that there was a `Nala' in between the fields of Devi Lal and Kana and the trees were standing on both sides of the `Nale' It has not come in evidence that at any point of time Devi Lal had shouted for help. It seems that Kana could not see the occurrence while standing on his field because of the distance as also because of the trees which were standing on both sides of the `Nala'. Ramdeva's version appears to be correct that Kana had reached the place of occurrence after Devi Lal had suffered injuries. Kana, therefore, can not be said to be an eye witness to the occurrence. 9. Now remains the evidence of P.W. 4 Ramdeva. In his deposition, Ramdeva says that he had seen Gajanand causing an axe blow to the head of Devi Lal. Kana, therefore, can not be said to be an eye witness to the occurrence. 9. Now remains the evidence of P.W. 4 Ramdeva. In his deposition, Ramdeva says that he had seen Gajanand causing an axe blow to the head of Devi Lal. It has appeared in his cross-examination that Gajanand and Mahavir were grazing their goats on the `Nala' itself and only one goat had to entered into the field of Devi Lal and Mahavir was attempting to drive out that goat from the field. It has further come in his statement that first Devi Lal had caused injuries to Mahavir by a lathi, on which Gajanand went running and he asked Devi Lal as to why he was beating him. The witness says that on asking of Gajanand, Devi Lal was annoyed and addressing Gajanand as `Gadaria' in contemptuous manner, he inflicted two lathi blows to Gajanand, whereupon Gajanand caused one injury to Devi Lal. It is significant to point out that the prosecution has not declared this witness hostile. His name even finds place in the F.I.R. Ex.P. 21. Therefore, the testimony of Ramdeva cannot be lightly brushed aside. 10. By the evidence of Ramdeva, it is fully established that only one goat had entered into the field of Devi Lal and Mahavir had tried to drive the goat from the field but at that time Devilal inflicted two lathi blows to Mahavir and when Gajanand intervened, he inflicted two lathi blows to him also and thereupon, Gajanand had caused one injury to Devi Lal. It is relevant to state that the accused have proved their injury reports Ex.D. 4 and D. 5. These injury reports indicate that Gajanand had two bruises and one abrasion and Mahavir had two abrasions and one bruise on 5.4.91, when they were examined by D.W. 1 Dr. O.P. Verma and their injuries were three four days old. The fact that Ramdeva supports the defence version that both the accused has suffered injuries in the occurrence, it has to be held that the injuries detailed in Ex.D. 4 and D. 5 were sustained by Gajanand and Mahavir in the same occurrence. 11. The question to be considered is whether a right of private defence had occurred to Gajanand to cause injury to Devi Lal. 11. The question to be considered is whether a right of private defence had occurred to Gajanand to cause injury to Devi Lal. It is to be noticed that only the one blow was given by Gajanand and he had not repeated the blows. It is further to be noticed that there was no enmity between the parties before the date of occurrence and the incident had occurred all of a sudden when one goat of Mahavir had entered into the field of Devi Lal and the former was driving the same out. 12. The principle of right to private defence finds place in Chapter IV of the Indian Penal Code. Under Section 100 of the I.P.C. the right of private defence extends to the voluntary causing of death if the assailant has reasonable apprehension that assault on him would cause his death or that the assault would cause grievous hurt to him. Under Section 102 IPC, the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed, and it continues as long as apprehension of danger to the body continues. 13. The Apex Court in the case of Deo Narain v. State of U.P., A.I.R. 1973 S.C. 473 , has observed that right of private defence is available for protection against the apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It was further observed that as soon as a reasonable apprehension of danger arises, the right of private defence can be exercised. It is profitable to read their lordships' observations appearing at para 5 of the report. "According to that section (Section 102) the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant danger. This right rests on the general principle that where a crime is endavoured to be committed by force. it is lawful to repel that force in self-defence. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant danger. This right rests on the general principle that where a crime is endavoured to be committed by force. it is lawful to repel that force in self-defence. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right." In that case the deceased had inflicted a lathi blow to the accused and the accused had inflicted a blow by a spear, yet their lordships held that right of private defence was available to the accused. 14. In the instant case, the facts indicate that when Mahavir was trying to drive out the goat which had entered into the field of Devi Lal, he was given beatings by the deceased and two lathi blows were inflicted on his person. The further facts are that when Gajanand came to the rescue of Mahavir, he was addressed in contemptuous manner and was given two lathi blows. At this stage the accused used the axe, which he was having with him obviously to control the herd of goats. Since the deceased was having a lathi and he had already caused injuries to Mahavir and Gajanand, it can not be said that there was no occasion for Gajanand to apprehend that grievous hurt could be caused to him. In these circumstances, if the accused caused one injury which unfortunately fell on the vital part of Devi Lal, it can not be said that the right of private defence had not accrued to him. 15. True it is, the accused could use the reverse side of the axe of defend himself and had he done so, Devilal might not have suffered fatal the injury. However on that ground it can not be said that the accused had exceeded the right available to him. In such moments of disturbed mental equilibrium, the force required to be used could not be weighed in golden scales. However on that ground it can not be said that the accused had exceeded the right available to him. In such moments of disturbed mental equilibrium, the force required to be used could not be weighed in golden scales. Even if the accused went a little further while exercising the right of private defence, it can not be said that he had exceeded the right of private defence. 16. Their lordships of the Apex Court in the case of Deo Narain (supra) have observed that in moments of excitement or disturbed mental equilibrium, it is somewhat difficult to expect parties facing grave aggression to coolly weigh as if in golden scales, and calmly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful aggression. In that case, the fact situation was that the deceased had a lathi in his hand and he had aimed the lathi at the accused, whereupon the later, who was having a spear, inflicted an injury which was four and half inches deep on the right side of the chest of the deceased. Holding that the accused had a right of private defence, it was observed that he had not exceeded the right available to him. 17. In the instant case, the facts are all the more clear that the deceased had caused injuries to two persons by lathi and he was determined to cause harm to the accused. In such circumstances, the accused had reasonable cause to apprehend that he might suffer grievous hurt at the hands of the deceased. 18. Their lordships in the case of Mohd. Ramzani v. State of Delhi, A.I.R. 1980 S.C. 1341 . reiterated the principle that a person faced with imminent peril of life and limb of himself or another is not expected to weigh in `golden scales' the precise force needed to repeal the danger. Even if he at the heat of the moment carries his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it. 19. Even if he at the heat of the moment carries his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it. 19. In view of the observations of their lordships in the aforesaid cases, it has to be accepted that the right of private defence had accrued to the accused to cause injury to the deceased and further that he had not exceeded the right of private defence available to him. 20. The trial court has obviously erred in convicting the appellant in this case. He is entitled to acquittal. 21. Consequently, the appeal succeeds. The conviction of the appellant is set aside and he is acquitted of the offence under Section 302 IPC. He is directed to be released forthwith if not required in any other case. The amount of fine, if deposited, be refunded to the appellant.Appeal Allowed. *******