( 1 ) ACCUSED 1 to 3 on the file of Principal sessions Judge, Ranga Reddy in s C No 171/96 are the appellants A-1 was convicted under Section 304 Part-l IPC and also under Section 324 IPC A-2 and A-3 were convicted under Section 324 IPC A-1 to A-8 in general were found to be not guilty of other charges and also the A-4 to A-8 were held to be not guilty of other charges and acquittal had been recorded. Episode of the Prosecution in brief: ( 2 ) THE case of the prosecution is that A-1, a-2, A-3 and A-7 are the sons of A-8, A-4 is the son of A-7, A-5 and A-6 are the sons of khamruddin and grand sons of A-8. A-1 to a-3 and A-8 live jointly. P. W. 1 and P. W. 2 are husband and wife. P. W. 3 Maschender, p. W. 14 Prabhu and the deceased Narsimulu are their sons. P. W. 11 Rajamani is the wife of p. W. 3. P. W. 7 Dasaratham and P. W. 10 anjaiah are brothers of P. W. 1 and P. W. 8 srinivas is the son of P. W. 7 Dasaratham. P. W. 1 along with his wife (P. W. 2), his sons p. W. 3 and P. W. 14 and his daughter-in-law p. W. 11 was residing in the house owned by a-8 since two years prior to the incident. On 2-4-1995, A-2 went to the house of P. W. 1 when P. W. 11 Rajamani was alone and caught hold of her hand. Being frightened by the conduct of A-2, P. W. 11 came out of the house. She went to fields and informed her mother-in-law (P. W. 2) about the behaviour of A-2. On 4-4-1995 P. W. 2, P. W. 3, P. W. 11 and the deceased were at sugarcane crushing machine in their field. A-2 happened to go there. Then P. W. 2 scolded A-2 for his misbehaviour with P. W. 11. The deceased narsimulu slapped A-2 Khaja Moinuddin for his misbehaviour. In the meanwhile, A-3, a-4 and A-6 came there and took away A-2 holding out threats against them. On the morning of 5-4-1995 A-7 called P. W. 1 to his house through A-5 since P. W. 1 was to pay rs. 3735/- to A-7. The deceased narsimulu slapped A-2 Khaja Moinuddin for his misbehaviour. In the meanwhile, A-3, a-4 and A-6 came there and took away A-2 holding out threats against them. On the morning of 5-4-1995 A-7 called P. W. 1 to his house through A-5 since P. W. 1 was to pay rs. 3735/- to A-7. P. W. 1 went to the house of a-7 and repaid the money to A-8 Moulana. There was verbal altercation between the sons of P. W. 1 and the accused over A-2 outraging modesty of P. W. 11. In the said altercation A-4 caught hold of legs of P. W. 14 and pulled him. P. W. 14 fell down. A-1, A-3, a-5 and A-6 beat him with fire wood sticks. When the deceased came with a stick and beat A-4 on head, A-5 caught him and A-1 beat him with a sickle on his back. As a result the deceased Narsimulu fell down. When p. W. 2 Anthamma came in rescue of the deceased Narsimulu she received injury on her left middle finger. A-2 beat P. W. 3 on his back. On hearing the altercation P. W. 7 dasaratham came there to subside it. A-3 dealt a blow with a stick on his head and thereby he received bleeding injury. When the altercation was going on, P. W. 10 Anjaiah came and some of the accused beat him with sticks. P. W. 4 Kishanji also came there on coming to know the altercation between the accused and the prosecution party and he also received injuries. P. W. 1 shifted the deceased Narsimulu on a bullock cart to hospital. On the way to hospital and on nearing Kothapally, the deceased breathed last. P. W. 1 lodged complaint with the S. H. O. Dharur on 5-4-1995 at about 11-30 a. m. Ex. P-1 is the complaint presented by him. P. W. 13 P. Krishnaji, S. I. of Police, Dharur police Station received Ex. P-1 complaint and registered a case in Cr. No. 21/95 under sections 147,148,302,324 r/w. Section 149 ipc and issued Ex. P-10 F. I. R. He examined p. W. 1 and recorded his statement under section 161 Cr. P-1 is the complaint presented by him. P. W. 13 P. Krishnaji, S. I. of Police, Dharur police Station received Ex. P-1 complaint and registered a case in Cr. No. 21/95 under sections 147,148,302,324 r/w. Section 149 ipc and issued Ex. P-10 F. I. R. He examined p. W. 1 and recorded his statement under section 161 Cr. P. C. P. W. 18 M. Ram Prasad rao, Circle Inspector of Police, Vikarabad took up investigation, visited scene of offence and conducted panchanama in the presence of LW-16 Vadla Sangaiah and P. W. 12 kammari Kistaiah and prepared rough sketch of the scene of offence. Ex. P-8 is the scene of offence panchanama and Ex. P-9 is the rough sketch. While observing the scene, he seized blood stained earth in MO-8 mud pot and control earth in MO-9 mud pot. On the same day he went to Government Hospital, vikarabad and examined P. W. 2 Boini anthamma. P. W. 3, P. W. 4, P. W. 5, P. W. 6, p. W. 7, P. W. 8, P. W. 9, P. W. 10, P. W. 11, p. W. 14 and LW-10 and recorded their statements. He also conducted inquest on the dead body of the deceased in the presence of P. W. 16 D. Sudershan Reddy and L. W. 19 kavali Dasthaiah. Ex. P-12 is the inquest report. The dead body of the deceased was subjected to post mortem examination by p. W. 15 Dr. P. Sudershan who issued ex. P-11 post mortem certificate opining that the death of the deceased was due to shock and hemorrhage. P. W. 19 Dr. J. Purushotham examined P. W. 2, P. W. 3, P. W. 4, P. W. 7, p. W. 14 and issued Exs. P-46 to P-50 wound certificates. P. W. 8 M. Ram Prasad, C. I. of police, arrested A-1 to A-8 and recovered m. Os. 1 to 7 sticks and MO-10 sickle in pursuance of their disclosure statements. He sent the material objects to Forensic Science laboratory through Court. ( 3 ) THE prosecution examined P. W. 1 to p. W. 19 and marked Exs. P-1 to P-50 and m. Os. 1 to 14 and ultimately on appreciation of evidence after recording acquittal in relation to certain charges as against A-4 to A-8, A-1 to A-3 were convicted and sentenced as referred to supra. ( 3 ) THE prosecution examined P. W. 1 to p. W. 19 and marked Exs. P-1 to P-50 and m. Os. 1 to 14 and ultimately on appreciation of evidence after recording acquittal in relation to certain charges as against A-4 to A-8, A-1 to A-3 were convicted and sentenced as referred to supra. Submissions of Sri Praveen Kumar: ( 4 ) THE learned Counsel representing the appellants would submit that the learned judge erred in placing reliance on the highly interested testimony of P. W. 1 to P. W. 3, p. W. 10, P. W. 13 and P. W. 14. The learned counsel also would submit that the prosecution did not come forward with the true version and had suppressed the genesis of the attack. The Counsel also would contend that the motive for the attack had not been established and the evidence on this aspect is highly insufficient. The learned Counsel also would contend that in the light of the evidence of D. W. 1, the bleeding injuries on a-2 and A-4 and non-explanation in relation thereof, though the plea of private defence had not been taken, the plea is well established. The learned Counsel also pointed out that the evidence of D. W. 1 should have been relied upon and the altercation was in front of the house of A-1 and not at the basement of P. W. 1 and hence the very scene of offence is doubtful. The Counsel also would contend that the medical evidence also does not support the version of the prosecution in relation to the injury alleged to have been caused by A-2 and hence A-2 also is entitled to benefit of doubt. The learned counsel made eleborate submissions on the aspect of private defence and also had pointed out to the evidence of P. W. 1 and also D. W. 2 and also statements of A-2 and A-4 under section 313 Cr. P. C. in particular and the injuries on the persons of A-2 and A-4. Submissions of Sri Mohd. Osman shaheed, Additional Public Prosecutor: ( 5 ) THE learned Additional Public prosecutor would submit that the version of the prosecution is so clear and convincing and merely because benefit of doubt was given in case of certain of the accused the whole episode of the prosecution need not be disbelieved. Submissions of Sri Mohd. Osman shaheed, Additional Public Prosecutor: ( 5 ) THE learned Additional Public prosecutor would submit that the version of the prosecution is so clear and convincing and merely because benefit of doubt was given in case of certain of the accused the whole episode of the prosecution need not be disbelieved. The question of private defence would not arise in a free fight. Even otherwise, private defence can be only within permissible limits and should not be excessive. The injured witnesses clearly deposed about the incident. The learned counsel also had pointed out to the evidence available on record and the findings recorded by the learned Judge and submitted that the learned Judge had taken all the facts and circumstances into consideration and ultimately recorded clear findings and hence such well considered findings need not be disturbed by the appellate Court. Outraging modesty of P. W. 11 by A-2 on 2-4-1995: ( 6 ) P. W. 3 is the husband of P. W. 11 and p. W. 2 is the mother-in-law of P. W. 11. P. W. 11 deposed that three days prior to the death of narsimulu at about 5 p. m. she was preparing food in her house and she was alone in the house. A-2 Khaja Moinuddin came into her house and caught hold of her hand. P. W. 11 being frightened came out of the house and one waddara man was in front of the house and she asked him to stay there and by the time the waddara man came A-2 fled away and P. W. 11 went to the field and informed her mother-in-law P. W. 2. P. W. 2 also deposed about the attempt on the part of A-2 to outrage the modesty of P. W. 11. P. W. 3 also deposed above this aspect. Thus there is evidence of p. W. 2, P. W. 3 and P. W. 11 on this aspect. Narsimulu, the deceased, slapping a-2 at the field on 4-4-1995: ( 7 ) ON 4-4-1995 in the field of P. W. 1 when p. W. 2, P. W. 3 and P. W. 11 were attending to the work, A-2 happened to come to sugarcane crushing machine and thereupon P. W. 2 scolded him for his attempt to outrage the modesty of P. W. 11 and Narsimulu/deceased slapped him for his misconduct. There is evidence of these witnesses which is clear and categorical on this aspect. Incident on 5-4-1995: ( 8 ) THE evidence of P. W. 1, P. W. 2, P. W. 3, p. W. 7, P. W. 11 and P. W. 14 is available on record. P. W. 1 deposed that on 5-4-1995 A-7 md. Yousuf Mia called him to his house through A-5 since he was due Rs. 3735/- to him. Therefore along with the deceased narsimulu, P. W. 14 and P. W. 3 went to the house of A-7 and paid the amount to A-8. He further deposed that verbal altercation ensued between his sons and the accused over A-2 outraging the modesty of P. W. 11 and in the altercation A-4 caught hold of the legs of p. W. 14 and as a result he fell down. Then a-1, A-3, A-5 and A-6 beat P. W. 14 with fire wood sticks and he became unconscious due to their beating. When the deceased narsimulu came with a stick and beat A-4 on his head, A-5 caught hold of his hands and a-1 beat the deceased with a sickle on his back and as a result he fell down. P. W. 1 further deposed that A-3 beat P. W. 7 dasaratham with a stick on his head and p. W. 2 Anthamma received injury on her finger when she went in rescue of the deceased narsimulu. ( 9 ) P. W. 2 deposed that on the date of the incident A-5 came and called her husband p. W. 1 to the house of A-2 to make payment of the amount due to him and that her husband went to the house of A-2 with cash and she followed him. She further deposed that after her husband paying cash of Rs. 3700/- to a-8 an altercation ensued over A-2 outraging modesty of P. W. 11 and in that altercation a-2 and A-4 caught hold of P. W. 14 and they pulled and beat him and the other accused also joined them in giving blows on him. A-1 axed the deceased Narsimulu on his back while A-5 caught him. P. W. 2 further deposed that when she went in rescue of her son, her little finger of left hand got injured. A-1 axed the deceased Narsimulu on his back while A-5 caught him. P. W. 2 further deposed that when she went in rescue of her son, her little finger of left hand got injured. ( 10 ) P. W. 3 deposed that on the date of incident A-5 came and called his father to the house of A-7 and himself, his father P. W. 1 and his brother P. W. 14 went to the house of a-7 where his father paid Rs. 3700/- to A-8 and after paying the amount P. W. 14 questioned the accused about misconduct of a-2 on his wife and thereupon an altercation ensued in which A-4 caught hold of legs of p. W. 14 who was standing on the basement of the house and when he fell down, all the accused beat him with sticks and stones. P. W. 3 further deposed that his brother deceased Narsimulu came there on seeing the accused assaulting P. W. 14 and then a-1 dealt a blow with a sickle on the back of the deceased Narsimulu. He further deposed that A-2 beat him on his back. ( 11 ) P. W. 7 Dasaratham deposed that on the date of incident at about 7 a. m. he heard some galata when he was standing at his house and on hearing the altercation he went there to subside it. Then A-3 dealt a blow on his head with a stick. He further deposed that a-1 dealt a blow with a sickle on the back of deceased Narsimulu and as a result the deceased Narsimulu fell down with bleeding injuries. ( 12 ) P. W. 14 deposed that on the date of incident his father P. W. 1 paid amount to A-2 and questioned him of his misbehaviour with p. W. 11 and thereupon a wordy quarrel ensued and A-4 pulled his legs and other accused beat him with sticks. ( 13 ) THIS is the evidence available on record in relation to the incident. Medical evidence: ( 14 ) P. W. 19 examined PWs. 1 to 4, P. W. 7, p. W. 14 and issued wound certificates. He examined P. W. 3 on 5-4-1995 and found abrasion of 1" x " on left side of forehead. He issued Ex. P-46 wound certificate opining that the injury is simple in nature and would have been caused with a blunt object. 1 to 4, P. W. 7, p. W. 14 and issued wound certificates. He examined P. W. 3 on 5-4-1995 and found abrasion of 1" x " on left side of forehead. He issued Ex. P-46 wound certificate opining that the injury is simple in nature and would have been caused with a blunt object. At 1. 30 p. m. on the same day, he examined P. W. 4 kishanji and found abrasion of 2" x " on forehead. He issued Ex. P-47 wound certificate opining that the injury is simple in nature. At 1 -55 p. m. he examined P. W. 7 and found laceration of " x 1/2" x " on the top of the skull and a contusion of 4" x 3" on the left side of the chest. He issued Ex. P-48 wound certificate opining that the injuries are simple in nature. At 1-45 p. m. he examined P. W. 14 and found an abrasion of 3" x 2" on back. He classified both the injuries as simple. Ex. P-49 is the wound certificate. At 1 -15 p. m. on the same day P. W. 19 examined P. W. 2 and found abrasion of " x " on the left hand ring finger tip on the palm side and the injury was classified as simple in nature and ex. P-15 is the wound certificate. ( 15 ) P. W. 15 is the Doctor who conducted post mortem over the dead body of the deceased Narsimulu on 5-4-1995 at 4-15 p. m. and found the following injuries on the dead body: 1. A sharp injury 10 cms. X 5 cms. On right side of back of chest below lower end of scapula, probe apssing into right chest cavity and lungs and on dissection right side chest sharp injury right side midline 9 cm. x 4. 5 claim. , the entire back soaked with blood. 2. Abrasion 1 cm. x 0. 5 cm. right elbow anterior. P. W. 15 opined that the death of the deceased was due to shock and hemorrhage and that the injury No. 1 found on the dead body of the deceased could be possible by a sharp edged weapon like sickle. Ex. P-11 is the post mortem report issued by him. Abrasion 1 cm. x 0. 5 cm. right elbow anterior. P. W. 15 opined that the death of the deceased was due to shock and hemorrhage and that the injury No. 1 found on the dead body of the deceased could be possible by a sharp edged weapon like sickle. Ex. P-11 is the post mortem report issued by him. ( 16 ) IT is crystal clear from the evidence of p. W. 15 that the death of the deceased is homicidal and the accused also did not dispute the homicidal death of the deceased narsimulu. Panchanama and inquest: ( 17 ) THE evidence of P. W. 12 and P. W. 16 is available on record. P. W. 12 deposed that police conducted scene of offence panchanama and seized blood stained earth and control earth. Ex. P-8 is the scene of offence panchanama and Ex. P-9 is the rough sketch. Exs. P-8 and P-9 contain his signatures. P. W. 16 deposed that he acted as a panch witness for the inquest held on the dead body of the deceased and they noticed injuries on the back of shoulder on the dead body and Ex. P-12 is the inquest report. Investigation Officers: ( 18 ) P. W. 13, the Assistant Sub-Inspector deposed about P. W. 1 presenting a written complaint Ex. P-1 and this witness registering a case in Cr. No. 21/95 under Sections 147, 148, 302, 324 and 149 IPC and issuing F. I. R. and Ex. P-10 is the F. I. R. sent to Court while marking copies to the authorities concerned. P. W. 13 further deposed that he examined p. W. 1 and recorded his statement under section 161 Cr. P. C. and subsequently the investigation was taken over by the Circle inspector of Police, Vikarabad. ( 19 ) IN his evidence, P. W. 18, the Circle inspector of Police who had taken up the investigation had deposed in detail about all the details of investigation. Defence evidence: ( 20 ) THE evidence of D. W. 1 and D. W. 2 is available on record. D. W. 1, Dr. P. Sadhu satyanarayana, deposed that he examined a-2 and A-4 and found injuries on the persons. The injuries found by him on A-2 are : (1) A lacerated injury about 1 cm. Defence evidence: ( 20 ) THE evidence of D. W. 1 and D. W. 2 is available on record. D. W. 1, Dr. P. Sadhu satyanarayana, deposed that he examined a-2 and A-4 and found injuries on the persons. The injuries found by him on A-2 are : (1) A lacerated injury about 1 cm. over the head, (2) contusion over the right side of the mouth, (3) abrasion over the right knee and (4) tenderness over neck and abdomen. Ex. D-3 is the relevant entry in the M. L. C. register. The injuries found on A-4 are : (1) Incised wound of 3" x 1" on head, contusion and swelling over left elbow and Bruish injury on right arm. Ex. D-4 is the relevant entry in m. L. C. register. The Investigation Officer (P. W. 18) admits of A-2 and A-4 receiving injuries in the incident. As can be seen from the description of the injuries, they are not serious in nature. ( 21 ) D. W. 2 evidently was examined to show that the scene of offence is not near the basement of P. W. 1, but it was in front of the house of A-1, but reasons in detail had been recorded by the learned Judge why this version cannot be believed. ( 22 ) P. W. 4, P. W. 5, P. W. 6, P. W. 9, P. W. 10 and P. W. 17 no doubt were declared hostile. P. W. 1 reported the matter to the police. P. W. 14 in cross-examination deposed that after receiving injury on back of his head and on back he lost consciousness and none of the accused received injuries in the incident. P. W. 7 no doubt deposed that it is true that a-4 received injuries in altercation, but it is not true to say that A-2 also received injuries in the altercation, but it is not true to say that a-2 also received injuries in the altercation. P. W. 3 no doubt deposed that he was beaten by A-2 on his back. It is no doubt true that in the Doctor s evidence, there is no corresponding injury in relation to the evidence of P. W. 3 referred to supra. P. W. 18 no doubt in cross-examination admitted that he had registered acounter case in Cr. P. W. 3 no doubt deposed that he was beaten by A-2 on his back. It is no doubt true that in the Doctor s evidence, there is no corresponding injury in relation to the evidence of P. W. 3 referred to supra. P. W. 18 no doubt in cross-examination admitted that he had registered acounter case in Cr. No. 22/ 95 also, but referred it on the ground of mistake of fact. On the strength of this evidence available, submissions at length were made to the effect that when benefit of doubt was given to the other accused on the ground that the medical evidence would not corroborate the direct evidence available on record relating to corresponding injuries, the same benefit should have been given to A-2 also and submissions also were made at length relating to the aspect that the scene offence is in front of the house of A-1 and p. W. 1 and party is the aggressor party who attacked the accused party and to protect themselves the right of private defence was exercised within permissible limits and unfortunately in the course of fight the deceased Narsimulu died. On a careful scrutiny of the findings recorded by the learned Judge on appreciation of the evidence available on record in detail, this Court is of the considered opinion that the findings as such do not suffer from any legal infirmity. Section 96 I. P. C. dealing with Things done in private defence reads: "nothing is an offence which is done in the exercise of. the right of private defence". In Laxman Singh v. Poonam singh and others it was held at paras 6 and 7 by the Apex Court as hereunder:"only question which needs to be considered, is the alleged exercise of right of private defence. Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The section does not define the exp. assion right of private defence . It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. In a given case the court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short the Evidence Act ), the burden of proof is on the accused, who sets of the plea of self-defence, and, in the absence of proof, it is not possible for the court to presume the truth of the plea of self- defence. The court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. (See munshi Ram and Ors. v. Delhi administration (MR 1968 SC 702), State of Gujarat v. Bai Fatima ( AIR 1975 SC 1478 ), State of U. P. v. Mohd. (See munshi Ram and Ors. v. Delhi administration (MR 1968 SC 702), State of Gujarat v. Bai Fatima ( AIR 1975 SC 1478 ), State of U. P. v. Mohd. Musheer khan ( AIR 1977 SC 2226 ), and mohinder Pal Jolly v. State of Punjab ( AIR 1979 SC 577 ). Sections 100 to 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under section 97, that right extends under section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault. The oft quoted observation of this Court in Salim Zia v. State of U. P. , ( AIR 1979 SC 391 ) runs as follows:"it is true that the burden on an accused person to establish the plea of self- defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence". The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that when ever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabalise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non- explanation of the injuries by the prosecution may not affect the prosecution case in all cases. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non- explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. (See Lakshmi singh v. State of Bihar AIR 1976 SC 2263 ). A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Section 96 and 98 give a right of private defence against certain offences and acts. The right given under sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would because to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC define the limit and extent of right of private defence". The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC define the limit and extent of right of private defence". In Onkarnath Singh v. State of U. P. the Apex court at paras 34 and 35 held:"the question is, what is the effect of this non-explanation of the injuries of parasnath. This is a question of fact and not one of law. Answer to such a question depends upon the circumstances of each case. This Court has repeatedly pointed out that the entire prosecution case cannot be thrown overboard simply because the prosecution witness do not explain the injuries on the person of the accused (See AIR 1971 SC 2233 ) and Bhagwan tana Patil v. State of Maharashtra, Cr. Appeal No. 78/70, Dt. 9-10-1973 = (reported in AIR 1974 SC 21 = 1974 crl. LJ 145 ). Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the Court will scrutinize their evidence with care. Each case presents its own features. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self-defence by the complainant party. For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises". The Apex Court also held that the harm inflicted in self-defence must be no more than is legitimately necessary forthe purposes of defence. The Apex Court also held that the harm inflicted in self-defence must be no more than is legitimately necessary forthe purposes of defence. In Munshi Ram v. Delhi administration it was held that it is well settled that even if the accused does not plead self- defence it is open to the Court to consider such plea if the same arises from the material available on record. In Vishvas Aba Kurane v. State of Maharashtra it was held that it is well settled that in free fight no right of private defence is available to either party and each individual is responsible for his own acts. In munir Ahmad v. State of Rajasthan at Para- 10 the Apex Court observed:"three accused persons namely, Yusuf khan, Hanif Khan and Bhanuwari, had sustained injuries. Yusuf Khan had four contusions (i) 3 cm. x 2 cm. on left frontal middle; (ii) 3 cm. x 1 cm. on left wrist back; (iii) 8 cm. x 2 cm. on right side back at 12 thoracic vertebrae level; and (iv) 2 cm. x 2 cm. on occipital region. Hanif khan had three injuries, namely: (i) abrasion cm. x cm. on knuckles of third and fourth metacorpal, left; (ii) abrasion cm. x cm. on the knuckles of 3rd and 4th metacorpal left, and (iii) contusion 2 cm. x 1 cm. on right shoulder. Injuries to Bhanwaru Khan were (i) fracture right ulna upper with lacerated wound 2 cm. x cm. on posterior side and upper th and right forearm; (ii) fracture underneath the lacerated wound; and (iii) contusion 4 cm. x 4 cm. on left hand near thumb and index finger matacorpal back. It will be seen from the above that the injuries to yusuf Khan and Hanif Khan were simple in nature and were not such as would be easily noticed by the prosecution witnesses. The injury to Bhanwaru Khan was on the right upper ulna which may have gone unnoticed by the prosecution witnesses. The prosecution witnesses were questioned on this point. P. W. 1 has stated that he had not seen any injury on the person of any of the accused. He denies that he was called by the police in connection with the complaint lodged by Bhanwaru Khan, a policeman attached to Ratangarh police station. He denied the suggestion that the said injury was caused by Yasin khan. P. W. 1 has stated that he had not seen any injury on the person of any of the accused. He denies that he was called by the police in connection with the complaint lodged by Bhanwaru Khan, a policeman attached to Ratangarh police station. He denied the suggestion that the said injury was caused by Yasin khan. P. W. 2 and P. W. 5 have however stated that while the accused were beating the two Saduleh Khans, Yusuf khan and Hanif Khan were injured when the sticks of the accused accidentally hit them while Bhanwaru Khan received the injury when he was hit by his companion Menuddin. The complaint, if any, filed by Bhanwaru Khan is not on record. It is quite probable that those three accused may have been injured by their own companions during the fight. The submission that the injuries caused to the deceased Saduleh Khan and P. W. 1 and P. W. 3 were in self- defence has been rightly rejected by both the Courts below on the ground that in a free fight neither side has a right of private defence". In Yogendra Morarji v. State of Gujarat at para 13 the Apex Court held: "the Code excepts from the operation of its penal clauses large classes of acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed by several principles and limitations. The most salient of them concerned the defence of body are as under: Firstly, there is no right of private defence against an act which is not in itself an offence under the code; secondly, the right commences as soon as - and not before - a reasonable apprehension of danger to body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is conterminous with the duration of such apprehension (Section 102 ). That is to say, right avails only against a danger imminent, present and real; Thirdly, it is a defensive and not a punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence. (Sec. 99 ). That is to say, right avails only against a danger imminent, present and real; Thirdly, it is a defensive and not a punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence. (Sec. 99 ). In other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bona fide defender "if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack". It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack; Fourthly, the right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of section 100. For our purpose, only the first two clauses of Section 100 are relevant. This combined effect of these two clauses is that taking the life of the assailant would be justified on the plea of private defence; if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. In other words, a person who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of self-defence inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened. In other words, a person who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of self-defence inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened. This principle is also subject to the preceding rule that the harm or death inflicted to avert the danger is not substantially disproportionate to and incommensurate with the quality and character of the perilous act or threat intended to be repelled; Fifthly, there must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailant; Sixthly; the right being, in essence, a defensive right, does not accrue and avail where there is "time to have recourse to the protection of the public authorities". (Sec. 99 ). A Division Bench of this court in Jampa pydiraju v. State while dealing with this aspect held at Para-8 as hereunder:"the reason for the quarrel between the accused and the deceased is on account of a dispute that arose between the wife of the accused and the accused regarding money and when the radio was broken by the accused. PWs. 1 and 2 in their evidence stated that there was an altercation between the deceased and the accused and that they beat each other. P. W. 1 states that his brother intervened and took the deceased to his hut and afterwards the deceased again came back with a stick and beat the accused with the stick. Then the accused broke a bottle and with the bottle pieces he stabbed the deceased on his chest and when the accused was stabbing the deceased, the deceased was beating the accused. P. W. 2 states that when his father questioned the accused as to why he broke the radio, the accused asked the deceased not to interfere in the matter and then his father beat the accused. He (P. W. 2) interfered and took away his father to the hut. Then again the deceased came out with a stick and beat the accused with it and caused injuries to the accused. Then the accused broke a bottle and stabbed the deceased with the broken piece of the bottle on his front side. He (P. W. 2) interfered and took away his father to the hut. Then again the deceased came out with a stick and beat the accused with it and caused injuries to the accused. Then the accused broke a bottle and stabbed the deceased with the broken piece of the bottle on his front side. From this, it is clear that the deceased has brought the stick again for the second time after he was separated by his son P. W. 2 and beat the accused and after that only the accused broke the glass bottle and stabbed him. The evidence on this aspect is corroborated by both P. Ws. 1 and 2. Further, the beating of the accused and causing injuries to the accused by the deceased and also by p. W. 2 finds corroboration from the oral evidence and also Ex. P-9 wound certificate issued by the Medical Officer, government Head Quarters Hospital, vizianagaram (P. W. 4) to the accused. Normally, the dying declaration made by a person facing death has to be given due weight and if it is acceptable to the Court no corroboration is necessary. But, in this case, the very close relations of the accused and deceased were examined. On a careful reading of the dying declarations ex. P-6 and Ex. P-8 recorded by the police and the Magistrate, it is clear that the deceased was armed with a stick and it is also clear that an impression was raised in the mind of the accused that the deceased may cause a fatal blow on him and may be killed by him (deceased); and with that fear in his mind, the accused caused the injuries on the deceased. If the accused is armed with the glass pieces by that time itself i. e. , before the accused brought the stick for the second time, the, it can be said that the accused had an intention to kill the deceased. But, it is evident from the evidence of P. Ws. 1 and 2, that when the deceased was sent out from the place of incident by his son P. W. 2, he again came back and brought a stick and beat the accused, causing injuries, and then only the accused picked up an empty glass bottle. But, it is evident from the evidence of P. Ws. 1 and 2, that when the deceased was sent out from the place of incident by his son P. W. 2, he again came back and brought a stick and beat the accused, causing injuries, and then only the accused picked up an empty glass bottle. As already stated, the accused was examined by P. W. 4 on 23-9-91 and found two injuries as described in Ex. P-9 wound certificate. Therefore, when the prosecution evidence itself suggests that it is the deceased who was the aggressor in the incident and he was the person who brought the stick first and caused injuries to the accused and when the accused apprehended or raised an impression in his mind that he may be further attacked and killed; in that situation, it is but natural for the accused or for any other person, to pick up the weapon which is readily available and protect him form the attack of the aggressor by causing injuries to the aggressor in exercise of his right of private defence and by that it cannot be said that his intention was to cause the death of the aggressor or to do some other harm. Under those circumstances, in view of the fear that was created by the deceased by causing injuries to the accused, it can be said that it created an impression in the mind of the accused that he may be killed by the deceased with the stick that he was holding. If a person received injuries in the hands of the aggressor or if the circumstances justify that the aggressor person was holding a deadly weapon and if it had created an impression in the mind of the other person that he may be attacked by the aggressor and killed, that person is entitled to exercise his right of private defence and defend himself from the imminent danger of being attacked by the aggressor and the plea of right of private defence is available to such a person for the acts done by him. In a case of right of private defence, even if such a plea was not pleaded, it is the duty of the Court to read from the evidence and consider the same. On a reading of the dying declarations ex. In a case of right of private defence, even if such a plea was not pleaded, it is the duty of the Court to read from the evidence and consider the same. On a reading of the dying declarations ex. P-6 and P-8 and taking into account the evidence of P. Ws. 1 and 2 that the deceased has come out for the second time to the place of incident with a stick and beat the accused, causing an impression in the mind of the accused that he may be killed by the deceased, we find that the evidence suggests that it is a case where the accused has got a right to defend himself from the attack by exercising the right of private defence. We, therefore, accept the contention of the learned Counsel for the appellant- accused that, in the circumstances of this case, the right of private defence exercised by the accused in this case to prevent his death in the hands of the deceased, is perfectly justified. Even though the death was caused due to the injuries caused by the accused, still as the plea of right of private defence is available to him, we feel that the accused is entitled to the benefit of doubt. "reliance also was placed on the aspect of motive and appreciation of evidence on Bahal singh v. State ofharyanep wherein the Apex court at para 8 held:"now we come to the High Court judgment and refer to the discussion of the points in the order mentioned above. The High Court is of the opinion that although Jagdish P. W. 8 admitted that bahal and Ram Sarup did not gamble in his presence, it appeared that they had altercated and exchanged slaps and fist blows in his presence as he was positive in asserting that he had separated the respondent and the deceased. The tenor of the evidence of p. W. 8 did not warrant this conclusion. According to the said evidence, gambling altercation and exchange of slaps and fist blows all happened in succession at the same time. The statement in examination-in-chief was suggestive of the fact of the presence of the witness at the said happenings. When in cross-examination Jagdish admitted that the gambling did not take place in his presence it shook his entire evidence. The statement in examination-in-chief was suggestive of the fact of the presence of the witness at the said happenings. When in cross-examination Jagdish admitted that the gambling did not take place in his presence it shook his entire evidence. It may, however, be said that even if the genesis or the motive of the occurrence was not proved the ocular testimony of the witnesses as to the occurrence could not be discarded only on that account, if otherwise it was reliable. "while dealing with the aspect of giving benefit of doubt to some and convicting some and the effect thereof the Apex Court in Sunder singh v. State of Punjab at para 8 held:"cases sometimes arise where persons are charged with being members of an unlawful assembly and other charges are framed against them in respect of offences committed by such unlawful assembly. In such cases, if the names of persons constituting the unlawful assembly are specifically and clearly recited in the charge and it is not suggested that the any other persons known or unknown also were members of the unlawful assembly, it may be that if one or more persons specifically charged are acquitted, that may introduce a serious in firmity in the charge in respect of the others against whom the prosecution case may be proved. It is in this class of cases, for instance, that the principle laid down in the case of Plummer may have some relevance. If out of the six persons charged under section 149 of the Indian Penal Code along with other offences, two persons are acquitted, the remaining four may not be convicted because the essential requirement of an unlawful assembly might be lacking. In the present case, however, the failure of the prosecution to prove that Rachhpal Singh took part in the commission of the offence does not introduce an infirmity in its case against the appellants at all. Even if rachhpal Singh is held not to be present at the scene of the offence, that, in law, cannot prevent the prosecution from presenting its case against the three appellants if the evidence adduced by it is otherwise satisfactory and cogent. Therefore, we are satisfied thatthe case of Plummer does not make the conviction of the appellants either unreasonable or illegal. Therefore, we are satisfied thatthe case of Plummer does not make the conviction of the appellants either unreasonable or illegal. "reliance also was placed on Sohrab v. State of Madhya Pradesh wherein it was held:"where the witnesses tried to embellish and exaggerate and there were discrepancies and contradictions in the evidence, the broad features of the evidence of the prosecution case cannot be doubted on that ground alone. The position of eye-witnesses in relation to the occurrence may have been such that all the details could not have been noticed. Merely because there have been discrepancies and contradictions in the evidence of some or all of the witnesses does not mean that the entire evidence of the prosecution has to be discarded. It is only after exercising caution and care and sifting the evidence to separate the truth from untruth, exaggeration, embellishments and improvement, the Court comes to the conclusion that what can be accepted implicates the accused it will convict them. The dictum "falsus in uno falsus in omnibus" is not a found rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. It is well established that under sections 417,418 and 423 of the Code of Criminal Procedure, the High Court has full power to review at large the evidence upon which the order of acquittal was found and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless it be found expressly stated in the Code. But in exercising the powers conferred by the Code and in reaching its own conclusions the High court should and will always give proper weight and consideration to such matters as (1) the views of the Trial judge as to the credibility of witnesses, (2) the presumption of innocence in favour of the accused which is certainly not weakened by Trial Court s order of acquittal, (3) accused s right to any benefit of doubt and (4) the slowness of the Appellate Court in disturbing afinding of fact arrived at by the Judge who had the advantage of seeing the witnesses. Where defence story is that the accused was urinating when he received injuries and that gun went off in struggle causing injuries to the accused, and the Judge rejects it then it is his duty to consider the evidence of prosecution as to how the gun was fired and in case not accepting that story it is his duty to give reasons for not doing this. " ( 23 ) THE twin serious submissions which were advanced at length appear to be that in view of the fact that the version of the prosecution had been disbelieved and acquittal had been recorded in relation to the other accused, the same benefit should enure to the appellants also. The second submission made at length was that in the light of the evidence available on record, inasmuch as p. W. 1 party alone was the aggressor party on the fateful day, the right of private defence was exercised which is amply established by the injuries on the persons of A-2 and A-4. It is pertinent to note that the defence is that a-8 permitted P. W. 1 to stay in his house and he asked him to vacate the house and hence he bore grudge and the case was foisted. It is also the version of the defence the narsimulu/deceased beat A-2 with stick and p. W. 14 beat A-4 with stick and caused injuries and when A-1 was lifting A-2 and A-4, P. W. 14 snatched a sickle from P. W. 2 and dealt a blow on him and the blow fell on the deceased. This is the version of the defence. In Sec. 313 cr. P. C. statements also A-2 and A-4 made an attempt to take the stand mentioning the injuries on their persons. There was some controversy relating to the scene of offence. Specific findings had been recorded by the learned Judge why this aspect cannot be believed and the scene of offence is not in front of the house of A-1 as deposed by p. W. 2, but it is near the basement of the house of P. W. 1 only. This was a fight which occurred due to the episode of the misbehaviour of A-2 with P. W. 11 who made an attempt to outrage the modesty of P. W. 11. This was a fight which occurred due to the episode of the misbehaviour of A-2 with P. W. 11 who made an attempt to outrage the modesty of P. W. 11. In the light of the clear evidence available on record it cannot be said that P. W. 1 party is the aggressor party. P. W. 2 to P. W. 4, P. W. 7 and P. W. 14 received injuries and the deceased also received injuries and succumbed to the injuries ultimately. P. W. 18 no doubt admitted to have registered as counter case in Cr. No. 22/95, but referred the matter on the ground of mistake of fact. The mere non-explanation of injuries on A-2 and a-4 would not lead to the conclusion automatically that the defence version of private defence is to be believed especially in the light of the clear findings recorded by the learned Judge. The mere absence of corresponding injuries on the back as deposed by P. W. 3 is not such an infirmity to disbelieve the version of the prosecution. Also, the mere benefit of doubt given to the other accused for want of evidence would not enure to the benefit of the appellants too. As already referred to supra, P. W. 4, P. W. 5, p. W. 6, P. W. 9 P. W. 10 and P. W. 17 were declared hostile. But however, the other evidence available on record had clearly established that when in a prior mediation since the conduct of A-2 was questioned, it was the cause for the problem. The evidence is very clear and categorical. In the facts and circumstances of the case, howeverthis Court is of the considered opinion that the conviction and sentence imposed on A-1 under section 304 Part-l I. P. C. cannot be sustained but however the same falls under Sec. 304 part-ll I. P. C. As far as the conviction and sentence imposed under Section 324 I. P. C. as against A-1 are concerned, they are hereby confirmed. Likewise, as far as A-2 and A-3 are concerned, the conviction and the sentences imposed are hereby confirmed. Findings in detail had been recorded by the learned Judge that A-1 dealt a blow with sickle on the deceased and A-1 also caused injuries to P. W. 2 and A-2 caused injuries to p. W. 3 and A-3 caused injuries to P. W. 7. Findings in detail had been recorded by the learned Judge that A-1 dealt a blow with sickle on the deceased and A-1 also caused injuries to P. W. 2 and A-2 caused injuries to p. W. 3 and A-3 caused injuries to P. W. 7. These are clear findings recorded by the learned Judge and hence the said findings which are well considered findings need not be disturbed by the appellate Court especially in the light of the defence taken and also in the light of the fact that there is no controversy thatthere had been an incident but the method and the manner in which the incident happened alone is in controversy between the parties. Hence for the reasons recorded above, the findings are hereby confirmed and however the conviction and sentence against A-1 under Section 304 Part-l i. P. C. are hereby set aside and A-1 is convicted under Section 304 Part-ll I. P. C. and sentenced to undergo Rigorous imprisonment for a period of five years and as far as the conviction and sentence against a-1 under Section 324 I. P. C. is concerned, they are hereby confirmed both to run concurrently and accordingly the conviction and sentences against A-2 and A-3 are also hereby confirmed. Thus, the conviction and sentence in relation to A-1 under Section 304 part-l I. P. C is hereby modified to one under section 304 Part-ll I. P. C. Except the said modification referred to supra, in all other particulars, the findings recorded by the learned Judge are hereby confirmed. ( 24 ) THE Criminal Appeal is partly allowed to the extent indicated above. The bail bonds of the appellants/accused shall stand cancelled and the appellants/accused to serve rest of the sentences.