This is an appeal from judgment and order dated 17th of February, 1981 passed by Sri Bramha Kishore II Additional Sessions Judge, Agra in Sessions Trial No. 423 of 1978, State v. Shanti Swarup & Others, convicting accused Shanti Swarup under Sections 148 and 302 IPC and sentencing him to one years rigorous imprisonment and imprisonment for life respectively thereunder and rest of the accused namely Prakash Chandra alias Pikka, Ram Rakshpal, Rajesh alias Raju and Ashok Kumar under Sections 147 IPC and Section 302 read with Section 149 IPC and sentencing each of them to six months rigorous imprisonment and imprisonment for life respectively thereunder making both the sentences to run concurrently. 2. Since accused Shanti Swarup, Prakash Chandra alias Pikka, Ram Rakshpal and Rajesh alias Raju were reported having died their appeal stood abated. Now the only surviving appellant is Ashok Kumar. 3. Brief facts giving rise to this appeal are that at about 11:00 p. m. on 20th of June 1977 Sushil Kumar lodged an FIR at police station Firozabad (North) District Agra that at about 9:00 p. m. on 20th of June, 1977 he alongwith his brother Sudhir Kumar alias Siddhu and Sunil Kumar were going to the temple situate at Mohalla Arya Nagar and as they reached near the shop of Nathhi Halwai Shanti Swarup, Ashok Kumar, Prakash Chandra alias Pikka, Ram Rakshpal and Rajesh alias Raju son of Siya Ram alongwith 3-4 others coming from the front, shouted that they had supported Janta Party and had prevented their supporters from casting votes in the Elections and now they would teach them a lesson and immediately Ashok Kumar and Prakash Chandra alias Pikka caught hold of Sudhir Kumar and at the exhortation of Ram Rakshpal that he should be killed his son Shanti Swarup gave knife blow to him and sustaining the fatal injury Sudhir Kumar fell down and then 2-3 persons accompanying them gave him blows with butt of the guns. On the hue and cry raised by Sushil Kumar one Ram Kishore, Sukhbasi, Kallan and others standing nearby asked the miscreants as to why they were beating him and then Ram Rakshpal who was holding a pistol threatened that they would be shot dead. The persons present there got frightened and left the scene of occurrence. Sunil Kumar shrouded himself in a shop of toffee, biscuits etc. situate nearby. The persons present there got frightened and left the scene of occurrence. Sunil Kumar shrouded himself in a shop of toffee, biscuits etc. situate nearby. The miscreants took injured Sudhir Kumar dragging him towards their house. The said incident was witnessed by the witnesses in the electric light lighted there. Soon thereafter injured Sudhir Kumar was taken by his brothers. Sushil and Sunil to the Hospital in a rickshaw but by the time they reached the Hospital Sudhir Kumar succumbed to the fatal injuries sustained by him in the said incident. The police registered a crime against the accused on the basis of the written report accordingly and made relevant entry regarding registration of the crime in the general diary (Exts Ka 7 and Ka 12 ). SI C P Dube to whom investigation of the crime was entrusted visited the scene of occurrence and prepared its site plan map (Ext. Ka 2 ). He also collected blood stained and simple earth from the scene of occurrence and prepared their recovery memo (Ext Ka 4 ). He also recorded statements of the witnesses. It appears that the next morning inquest proceedings were drawn on the dead body of Sudhir Kumar and dead body of the deceased in a sealed cover along with necessary papers was handed over to the police constables for being taken to the mortuary for its post mortem. 4. Autopsy on the dead body of Sudhir Kumar was conducted by Dr. S. N. Dubey Medical Officer S. N. M. Hospital Firozabad on 21st of June 1977 at about 10:00 a. m. Autopsy conducted on the dead body revealed one ante mortem lacerated wound scalp deep on left side of head and two ante mortem abraded contusions one on the back of right forearm and the other on left side back lower one third. It also revealed one ante mortem stab wound 3 cm x 2 cm x abdominal cavity deep directing backwards and upwards and two ante mortem incised wounds one 7 cm x 3 cm x thoracic cavity deep on back upper part in between the two scapula at the mid line right side and another 6 cm x 1 cm x muscle deep on left gluteal region lower part. On an internal examination brain was found congested and right pleura ruptured and left pleura punctured. On an internal examination brain was found congested and right pleura ruptured and left pleura punctured. Peritoneum was also found punctured and large intestines and right kidney lacerated. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries about half a day ago. 5. After completing the investigation the police submitted charge sheet against the accused. 6. The accused pleaded not guilty stating that they were got implicated in the case falsely. Accused Rajesh alias Raju son of Siya Ram stated in his statement recorded under Section 313 of the Code of Criminal Procedure that at about 9:00 p. m. the alleged night he alongwith his sisters was returning back from the market and as they reached near the shop of Natthi Halwai Sunil Kumar and Kaliya met them and started passing indecent remarks on his sisters by way of eve teasing and as he asked them not to persist in the wrong Sunil Kumar gave him a knife blow and then he caused hold of Sunil Kumar and snatched the knife from him; that in the meanwhile his sisters went to their house and immediately Ram Narain and Rajesh Kumar came to the scene of occurrence and in the meanwhile Sudhir Kumar alias Siddhu also reached the scene of occurrence and he gave knife blows to Ram Narain and Rajesh Kumar and that then Rajesh Kumar took the knife from him which he had snatched from Sunil Kumar and gave knife blows to Sudhir Kumar in his self-defence and in their defence and that thereafter Ram Narain, Rajesh Kumar and he got themselves medically examined at the Hospital the same night and an FIR was also lodged at the police station against Sunil and others. Accused Ashok Kumar also stated in his statement recorded under Section 313 of the Code of Criminal Procedure that Sudhir Kumar was extended from the district for a period of six months under the U. P. Control of Goondas Act and in that case his father Ram Gopal stood a surety for him but Sudhir Kumar was not prepared to remain out of the district and on that account his father had asked Sudhir Kumar that since his surety bond might be forfeited as he was not going out of the district he would inform the police and that on that very account he was got implicated in the case falsely. 7. In order to bring the charge home to the accused the prosecution examined Sushil Kumar (PW 1), Kallan (PW 2) and Sunil Kumar (PW 3) as an eye witnesses of the occurrence. PW Sushil Kumar, brother of the deceased and the first informant deposed all the facts of the incident from the beginning to the end as narrated above and PW 2 Kallan and PW 3 Sunil Kumar corroborated him stating likewise. However PW 1 Sushil Kumar and PW 2 Kallan both stated in their cross-examination that they did not see any injury on the person of accused Rajesh alias Raju, Rajesh Kumar and Ram Narayan nor they saw anybody causing hurt to any of them. PW 3 Sunil Kumar denied the defence version of self-defence suggested to him in his cross-examination by the learned counsel for the accused. Testimony of the remaining witnesses examined by the prosecution is more or less of formal nature as PW 4 SI C. P. Dubey who investigated the crime initially has proved the police papers. PW 7 SI R. C. Awasthi who drew inquest proceedings on the dead body of Sudhir Kumar has proved the inquest report and the papers relating thereto. PW 5 Dr L. N. Datta who conducted autopsy on the dead body of Sudhir Kumar on 21st of June 1977 at about 10:00 a. m. proved the post mortem report stating that the ante mortem injuries found on the dead body were sufficient to cause his death in the ordinary course. PW 5 Dr L. N. Datta who conducted autopsy on the dead body of Sudhir Kumar on 21st of June 1977 at about 10:00 a. m. proved the post mortem report stating that the ante mortem injuries found on the dead body were sufficient to cause his death in the ordinary course. PW 9 H. M. Raghuraj Singh who prepared check report of the crime (Ext Ka 7) on the basis of the written report handed over to him by Sushil Kumar at the police station and made relevant entry in the general diary regarding registration of the crime (Ext Ka 2) has proved the police papers. PW 6 Dy S. P. Zamir Hussain Khan who after completing the investigation submitted charge-sheet against the accused has proved these papers. 8. CW 1 Dr K. K. Agarwal Medical Officer, S. N. M. Hospital Firozabad who medically examined injured Rajesh Kumar son of Jagdish, Ram Narain and accused Rajesh alias Raju son of Siya Ram on 20th of June 1977 between 9:45 p. m. to 10:15 p. m. has proved the injury reports (Exts Kha 1 to kha 3 ). The accused also got copy of the FIR lodged at the police station by Siya Ram father of injured accused Rajesh alias Raju and general diary entry regarding registration of the crime proved and brought on the record by PW 9 H. M. Raghuraj Singh (Exts kha 6 and kha 7) in their defence. 9. Relying on the testimony of PW 1 Sushil Kumar, brother of the deceased and the first informant and his brother Sunil Kumar (PW 3) the learned Additional Sessions Judge passed the impugned judgment and order recording conviction of the accused and awarding sentence to each of them thereunder as stated above observing that the non-explanation of the injuries sustained by accused Rajesh alias Raju and others was not fatal to the prosecution case. 10. Feeling aggrieved by the impugned judgment and order the accused appellants preferred this appeal for redress. 11. We have heard learned counsel for the appellant and learned AGA for the State and also gone through the record of the case and the impugned judgment. 12. 10. Feeling aggrieved by the impugned judgment and order the accused appellants preferred this appeal for redress. 11. We have heard learned counsel for the appellant and learned AGA for the State and also gone through the record of the case and the impugned judgment. 12. Learned counsel for the appellant vehemently argued that the learned Additional Sessions Judge erred in finding that non-explanation of the injuries sustained by accused Rajesh alias Raju son of Siya Ram, his maternal uncle Ram Narain and cousin Rajesh Kumar was not fatal to the prosecution case as according to the medical evidence the injury sustained by accused Rajesh alias Raju could be self suffered and injured Rajesh Kumar son of Jagdish and Ram Narain were not accused in the case. He further contended that the learned Additional Sessions Judge was mistaken in observing that the accused did not adduce any oral evidence in support of their defence as the accused were not bound to adduce oral evidence in their support. The said argument advanced by the learned counsel for the appellant has got much force in it because a perusal of the FIR (Ext Ka 7) lodged by Sushil Kumar, brother of the deceased and that of the cross-case lodged by Siya Ram, father of injured accused Rajesh alias Raju (Ext Kha 6) goes to show that in both the cases it was alleged that the incident took place on 20th of June 1977 at about 9:00 p. m. in front of the shop of Natthi Halwai. FIR of the cross-case was lodged by Siya Ram, father of injured accused Rajesh alias Raju against Sunil Kumar and his brother Sudhir Kumar and one Kaliya and two others at police station Firozabad (North) at about 10:30 p. m. the same night whereas in the instant case FIR was lodged by Sushil Kumar, brother of the deceased at about 11:00 p. m. against accused Rajesh alias Raju and others. A perusal of the injury reports of the injured Rajesh Kumar, Ram Narayan and accused Rajesh alias Raju son of Siya Ram (Exts Kha 1 to kha 3) goes to show that injured Rajesh Kumar was medically examined by Dr. A perusal of the injury reports of the injured Rajesh Kumar, Ram Narayan and accused Rajesh alias Raju son of Siya Ram (Exts Kha 1 to kha 3) goes to show that injured Rajesh Kumar was medically examined by Dr. K. K. Agarwal Medical Officer S. N. M. Hospital Firozabad on 20-6-77 at about 9:45 p. m. and his medical examination revealed an incised wound 2 cm x 1 cm on right iliac fossa midway between umbilicus and anterior superior illiac spine and the omentum coming out from the wound. Medical examination of injured Ram Narain at about 9:50 p. m. the same night revealed two incised wounds one 2 cm x 1 cm on right side of chest outer axillary line 11 cm above the sub costal margin and the other 3 cm x 1 cm on right illiac fossa 2. 5 cm medial to anterior superior illiac spine and fresh blood found oozing. The doctor opined that the injuries found on the person of both the injured were caused by sharp edged object, fresh in duration and kept under observation. Injured accused Rajesh alias Raju was also medically examined at about 10:15 p. m. the same night and his medical examination revealed an incised wound 1. 5 cm x. 5 cm on right side of buttock 5 cm behind and below anterior superior illiac spine and fresh bleeding present. The doctor opined that the injury was caused by sharp cutting object, fresh in duration and simple in nature. 13. In our considered view the learned Additional Sessions Judge was not justified in discarding the plea of self-defence taken by the accused on the ground that they did not adduce any oral evidence in support of their defence. It is well established that a plea of self-defence can be taken by introducing such plea in the cross-examination of prosecution witnesses or in the statement of the accused recorded under Section 313 of the Code of Criminal Procedure or by adducing defence evidence. It is the cardinal principle of Criminal Jurisprudence that an accused cannot be compelled to be examined as a witness and no adverse inference can be drawn against the defence merely because accused has chosen to abstain from entering the witness box. 14. It is the cardinal principle of Criminal Jurisprudence that an accused cannot be compelled to be examined as a witness and no adverse inference can be drawn against the defence merely because accused has chosen to abstain from entering the witness box. 14. In the instant case the defence got copy of the FIR lodged by Siya Ram, father of accused injured Rajesh alias Raju lodged at the police station and relevant general diary entry regarding registration of the crime proved and brought on the record by PW 8 H. M. Raghu Raj Singh (Exts. Kha 6 & Kha 7 ). Injury reports of all the three injured accused Rajesh alias Raju and that of Ram Narain and Rajesh Kumar have also been brought on the record (Exts Kha 1 to Kha 3 ). Under Section 97 of the Indian Penal Code every person has a right subject to the restrictions contained in Section 99 to defend his own body and the body of another person against any offence affecting the human body. Under Section 99 the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purposes of defence. Under Section 100 of the Code right of private defence of the body extends to causing even death if the offence which occasions the exercise of such right is an assault which reasonably causes an apprehension of death or grievous hurt amongst others. In the instant case grievous hurt was caused to Rajesh Kumar, and Ram Narain was also allegedly assaulted with knife by Sudhir Kumar causing him injuries on vital parts of his body and therefore, an apprehension that the prosecution party would persist in assault which could have resulted in further grievous hurt or death being caused was reasonably apprehended in the mind of Rajesh Kumar who taking the knife from accused Rajesh alias Raju snatched by him from Sunil stabbed Sudhir Kumar. And thus in our view Rajesh Kumar was justified in exercising right of private defence and causing harm to the prosecution party in the circumstances in which the accused and his associates were allegedly placed. And thus in our view Rajesh Kumar was justified in exercising right of private defence and causing harm to the prosecution party in the circumstances in which the accused and his associates were allegedly placed. In the instant case accused Rajesh alias Raju son of Siya Ram and his maternal uncle Ram Narain and cousin Rajesh Kumar received injuries during the same occurrence in which Sudhir Kumar, brother of the first informant received fatal injuries and therefore the plea of self-defence taken by the accused could not be lightly brushed aside particularly in the absence of any explanation of the injuries sustained by accused Rajesh alias Raju and his relations Ram Narayan and Rajesh Kumar. From the nature of injuries sustained by injured Rajesh Kumar and Ram Narayan on vital parts of their body one would have easily gathered reasonable apprehension that their lives were in immediate peril of death if the attack was not warded of instantly. Omentum came out of the wound sustained by injured Rajesh Kumar as a consequence of the attack by Sudhir Kumar, since deceased. Injured Ram Narayan too sustained injury at his chest. The injuries sustained by both the injured were kept under observation. It has been mentioned in the impugned judgment itself that in the cross-case accused Sunil Kumar and others were acquitted of the charge levelled against them that very day. 15. Further, no doubt that CW 1 Dr. K. K. Agarwal stated in his cross-examination that the injury sustained by Rajesh alias Raju could be self suffered. But in the circumstances of the case the injury sustained by accused Rajesh alias Raju could not be self suffered as he was medically examined alongwith his injured maternal uncle Ram Narayan and cousin Rajesh Kumar by Dr. K. K. Aggarwal, Medical Officer S. N. M. Hospital the same night between 9:45 p. m. to 10:15 p. m. and the injury sustained by Rajesh Kumar on vital part of body was grievous and the injuries sustained by Ram Narayan were on vital parts of body. K. K. Aggarwal, Medical Officer S. N. M. Hospital the same night between 9:45 p. m. to 10:15 p. m. and the injury sustained by Rajesh Kumar on vital part of body was grievous and the injuries sustained by Ram Narayan were on vital parts of body. Besides it, FIR of the cross-case lodged by Siya Ram, father of injured accused Rajesh alias Raju at the police station promptly at about 10:30 p. m. prior to the FIR of the instant case is so spontaneous and natural that it rules out any possibility or probability that the injury sustained by accused Rajesh alias Raju could be self suffered as virtually there was no time to spin out a false story. In all probability the prosecution has come up with a tailored version excluding the two injured namely Rajesh Kumar and Ram Narayan who received injuries of serious nature on vital parts of their body in the array of the accused in the case which reveals that the prosecution did not come with clean brest suppressing the very genesis as to how the incident originated. 16. For the above we find that the conviction and sentence recorded against the accused appellant by the Court below suffering with manifest illegality in appreciation of the parties evidence cannot be sustained in law and is liable to be set aside. The appeal is therefore, allowed and the impugned judgment and order is set aside. The appellant is hereby acquitted of the charge levelled against him. He is on bail. His bail bonds are hereby discharged. Appeal allowed. .