Judgment :- Radhakrishnan, J. Calumny at times assumes dangerous proportions which can even cost the life of a person, a story which unfolds in this case. Accused, Thomas Varkey @ Mundackal Monachan and the deceased, Sebastian @ Sybichan, were labourers engaged in the construction of the house of Manjulankal Mary (PW.6) along with several others. House warming ceremony of the house was conducted on 14.05.1997. Deceased Sybichan did not participate in the house warming ceremony. On the afternoon of 18.05.1997 deceased met P.W.6 and questioned her whether she had abused him for not attending the house warming ceremony. P.W.6 answered in the negative but enquired about the source of that tell-tale story that she had abused the deceased. Disclosing that it was the accused who had informed him, he left the house of P.W.6 telling her that he would get down the accused there. 2. The manual labourers of the locality, P.Ws. 12, 13 and 15, had assembled in the house of P.W.12. Rosamma for chatting. P.W.13 is the next door neighbour of P.W.12. While they were having their assembly in the residence of P.W.12, the accused came over there with a bundle of firewood collected from the forest and he also joined in the discussion after keeping the bundle of firewood behind the house of P.W.12. While so, deceased came over to the road in front of the house of P.W.12 and forced the accused to go with him to the house of P.W.6. The accused expressed reluctance and deferred it to the next day but the deceased was adamant and insisted again, but the accused again expressed his unwillingness. The deceased then got down into the residential compound of P.W.12 which is below the road level by about 5 feet 6 inches and dragged the accused putting a cycle chain around his neck. There ensued a scuffle between the accused and the deceased. The accused succeeded in snatching away the cycle chain which was around his neck. The accused threw it away into the property of P.W.12. P.W.13 informed the incident to P.W.5, father of the deceased. P.W.5 and C.P.W.12, who are the parents of the deceased and P.W.4, a friend of the deceased, who were in the tea shop of P.W.5 came over and intervened and separated the accused and the deceased from the scuffle. The accused threw it away into the property of P.W.12. P.W.13 informed the incident to P.W.5, father of the deceased. P.W.5 and C.P.W.12, who are the parents of the deceased and P.W.4, a friend of the deceased, who were in the tea shop of P.W.5 came over and intervened and separated the accused and the deceased from the scuffle. P.W.5, C.P.W.12 and P.W.4 then proceeded back to the tea shop of P.W.5. Upto this there is unanimity in the version of the prosecution and the defence. 3. The further case of the prosecution is that after having separated them from the scuffle, the deceased also proceeded towards the tea shop of P.W.5 after picking up M.O.2 broken handle of spade from the premises of the house of P.W.12. While so, the accused taking M.O.1 chopper from behind the house of P.W.12 entered the road through the property in between the houses of P.W.12 and P.W.13 and called the deceased from behind. As the deceased had moved further towards north from the portion of the road the accused went after him and inflicted fatal cut injuries on his body despite the attempt of the deceased to ward off the chopper cuts using the handle of spade. The incident occurred at 2 p.m on 18.5.1997. P.W.5 rushed to the spot. He along with others took the deceased to Adimali hospital. Later he was removed to the Medical College hospital, Kottayam for treatment and on the way Sybichan succumbed to the injuries at about 8 p.m on the 18.5.1997. 4. P.W.1, brother of the deceased gave Ext.P1 F.I statement to P.W.14 Sub Inspector of Police, Munnar at 11.45 p.m on 18.05.1997. P.W.14 on the basis of the F.I statement, registered a case as crime number 89/97 of Munnar Police Station. On the drawing of Ext. P1(a) F.I.R, P.W.14 went over to the Medical College Hospital, Kottayam on 19.05.1997 and conducted inquest on the body of the deceased in the presence of witnesses and prepared Ext.P2 inquest report which has attested by P.W.2. He took into bandobast M.O.8 lungi, M.O.11 jetty worn on the body of the deceased, M.O.9 thorthu that has been used as bandage on the injured hand of the deceased and M.O.10 banian found around the waist of the deceased. P.W.14 also questioned P.Ws 2,3,4 and C.P.Ws 3 and 4 at time of inquest. He took into bandobast M.O.8 lungi, M.O.11 jetty worn on the body of the deceased, M.O.9 thorthu that has been used as bandage on the injured hand of the deceased and M.O.10 banian found around the waist of the deceased. P.W.14 also questioned P.Ws 2,3,4 and C.P.Ws 3 and 4 at time of inquest. The dead body was later removed to the forensic department of the Medical College Hospital, Kottayam for post-mortem examination. P.W.10 conducted post-mortem examination on the body of the deceased and issued Ext.P6 post-mortem certificate. P.W.14 produced before court M.Os 8 to 11 taken by him. P.W.20, C.I. of Police, Munnar took over the investigation on the morning of 20.05.1997. He went to the scene of occurrence and prepared Ext.P13 scene mahazar which was attested by P.W.12. From the scene of occurrence M.O.2 handle of spade, M.O.3 pair of chappels of the accused, M.O.4 pair of chappels of the deceased and M.O.12 bloodstained grass and M.O.13 bloodstained sand were recovered and produced in court. P.W.20 arrested the accused on 26.5.1997 and on the basis of Ext.P4(a) information furnished by him P.W.20 recovered M.O.1 chopper, M.O.6 lungi and M.O.7 shirt of the accused kept in M.O.5 plastic cover among the bushes beneath a tree in the forest on the western side of Mankulam road. P.W.20 produced the accused before court with remand report. He also submitted the final report before the court of the Judicial First Class Magistrate, Devikulam charge sheeting the accused for the offence of murder punishable under Section 302 I.P.C. The Magistrate committed the case to Sessions Court, Thodupuzha, ldukki district and it was registered as Sessions Case No 185 of 2000. 5. The prosecution in order to establish the case examined P.Ws 1 to 20, marked Exts.P1 to P22 and identified M.Os 1 to 13. On the side of the defence Ext.D1 was marked. On the prosecution closing the evidence accused was questioned under section 313 Cr.P.C and he maintained the stand that he is innocent. Further he also raised the plea of self defence. Occurrence witnesses examined on the side of the prosecution are P.Ws 4,5,12,13, and 15 to 17. P.Ws 4, 12, 13, 15 and 16 turned hostile to the prosecution. On the prosecution closing the evidence accused was questioned under section 313 Cr.P.C and he maintained the stand that he is innocent. Further he also raised the plea of self defence. Occurrence witnesses examined on the side of the prosecution are P.Ws 4,5,12,13, and 15 to 17. P.Ws 4, 12, 13, 15 and 16 turned hostile to the prosecution. The trial court after analysing the evidence of the witnesses opined that the only witness who deposed the truth was P.W.5, father of the deceased and placing reliance on the evidence of the hostile witnesses also the court took the view that portion of their evidence that would lend support to the evidence of P.W.5. On analysing the evidence of P.Ws 12, 13 and 15 the court noticed that the deceased was the aggressor in the initial stage of the incident by dragging the accused from the house of P.W.12 by putting a cycle chain around the neck of the accused for achieving his object of carrying the accused to the house of P.W.6. The court also noticed that it was the deceased who had physically assaulted the accused. The court also noticed that it was the deceased who had physically assaulted the accused. The court also noticed the presence of P.Ws 4, 5, 13, 14 and 15 in the courtyard of P.W.12 and also the scuffle that ensued between the deceased and the accused in the presence of the above mentioned witnesses. The court below also noticed that there is unanimity in the evidence of P.W.5 with that of P.Ws 4,12,13 and 15 that they have noticed that a scuffle was going on between the deceased and the accused. P.W.5 with the help of P.W.4 pulled them apart. From then onwards there is material difference in the evidence of P.W.5 and rest of the occurrence witnesses. P.W.5 maintained that after the scuffle, he got on to the road and walked towards his teashop along with his wife and P.W.4 while the deceased followed him, after picking up M.O.2. P.W.5 with the help of P.W.4 pulled them apart. From then onwards there is material difference in the evidence of P.W.5 and rest of the occurrence witnesses. P.W.5 maintained that after the scuffle, he got on to the road and walked towards his teashop along with his wife and P.W.4 while the deceased followed him, after picking up M.O.2. When the deceased walked towards his tea shop for some distance, the accused got on to the road with M.O.1 chopper and called the deceased from behind asking him whether he was going away and threatened that he would do away with him and the deceased then stopped and turned back and then the accused inflicted cuts with M.O.1 chopper on the head, neck and both the hands of the deceased in quick succession though P.W.5 intervened and requested not to do so. Further it is also stated by P.W.5 that the deceased was attempting to ward off the cuts using M.O.2 handle of spade and thereupon the cuts fell on M.O.2. The evidence of P.w.5 would show that the deceased had ceased to be the aggressor and then the accused retaliated and attacked the deceased which resulted in his death. Prosecution story supported by P.W.5 was accepted by the trial court which rejected the plea of private defence advanced by the accused. Accused was thus found guilty of the offence punishable under Section 302 I.P.C for the reason that the act by which the death was cause was done with the intention of causing death and further that in any event it falls under clause “thirdly” of section 300 I.P.C as the cut injuries intended to be inflicted by using M.O.1 chopper which is a heavy cutting weapon is sufficient in the ordinary course of nature to cause the death. Accused was therefore sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/- and in default to pay the fine, to undergo rigorous imprisonment for a term of three years for the offence under section 302 I.P.C. Aggrieved by the sane accused has come up with this appeal. 6. We heard counsel for the accused Sri Gracious Kuriakose and Public Prosecutor Sri Suijith Mathew Jose at length. 7. We have indicated that there is unanimity in the evidence adduced that it was the deceased who initially assumed the posture of an aggressor. 6. We heard counsel for the accused Sri Gracious Kuriakose and Public Prosecutor Sri Suijith Mathew Jose at length. 7. We have indicated that there is unanimity in the evidence adduced that it was the deceased who initially assumed the posture of an aggressor. The court below after analysing the oral and documentary evidence came to the conclusion that it was the deceased who had dragged the accused from the veranda of the house of P.W.12 to the courtyard putting a cycle chain around the neck of the accused and there ensued a scuffle between the accused and the deceased. Prosecution version is that it was P.W.5 and C.P.W.12, who are the parents of the deceased, and P.W.4 who intervened and separated the deceased and the accused. Then the deceased proceeded towards the tea shop of P.W.5 taking in his hand M.O.2 from the premises of the house of P.W.12. Then taking M.O.1 chopper from behind the house of P.W.12 the accused called the deceased from behind and then inflicted fatal injuries on his body despite the attempt of the deceased to ward off the chopper with M.O.2. Defence version is that after P.W.5 and C.W.6 proceeded towards the tea shop of P.W.5, the deceased armed with M.O.2 chased the accused behind the house of P.W.12 and then to the road through the property that lies in between the houses of P.Ws 12 and 13 and the accused with a view to defend himself took M.O.1 chopper from behind the house of P.W.12 and that on reaching the road, the accused was beaten up by the deceased with M.O.2 and the accused had warded off the blows using M.O.1 chopper in exercise of his right of private defence, resulting injuries on the deceased as well as on the accused. 8. Injuries on the deceased and the accused: We may first examine the injuries sustained by the deceased. P.W.10 is the Assistant Professor of Forensic Medicine attached to Medical College, Kottayam and he conducted autopsy on the body of the deceased on 19.05.1997 and Ext.P6 is the post-mortem certificate dated 20.05.1997 prepared by him. Following are the ante-mortem injuries noted: 1. Incised wound 7.5 x 1 cm slightly oblique on the front of head, the lower inner end being 6 cm above the root of nose. The outer table of the skull was cut underneath. Following are the ante-mortem injuries noted: 1. Incised wound 7.5 x 1 cm slightly oblique on the front of head, the lower inner end being 6 cm above the root of nose. The outer table of the skull was cut underneath. Brain showed a thin film of bilateral subarachnoid bleeding. 2. Incised wound 2x0.5 cms at the lower end of left ear. 3. Incised wound 4.5x2x3 cm on the left side of neck. 4. Linear abrasion 6 cm long, horizontal on the upper arm, 7.5 cm below the tip of shoulder. 5. Incised wound 5x2 cm oblique on the back of right forearm 8 cm above the wrist. The bone underneath was cut superficially. 6. Incised wound 2x0.8 cm on the back or right palm, 2.5 cm below the base of little finger. 7. Incised wound 10x6 cm on the front of left forearm 4 cm above the wrist. The muscles and ulnar artery were found severed underneath. 8. Multiple small abrasions on the back of chest, overlying the shoulder blade. P.W.10 opined that death was caused due to cut injuries sustained. When examined before court P.W.10 further opined that injury No.7 is sufficient to cause death in the ordinary course of nature and injury No.1 is likely to cause death. It was reported that the injuries were not fatal. He has also opined that all the injuries noted must have been caused while trying to ward off an attack with a heavy cutting sharp weapon like a chopper. No injury is seen on the chest, abdomen or other vital parts of the body. 9. The accused was also admitted to Adimali Government hospital and on 20.5.1997 at about 3 p.m P.W.11 Asst. Sub Inspector of Police went to the hospital and recorded the F.I statement of the accused. The accused was undergoing treatment in that hospital for the injuries sustained by him. On the basis of the F.I. Statement P.W.19 registered a case as crime No 91/97 of Munnar Police Station under Sections 323 and 324 I.P.C against the deceased. On coming to know of the registration of crime No 91/97 of Munnar Police Station under Ext. P15 F.I.R in the occurrence involved in the case, P.W.20 took over the investigation. On the basis of the F.I. Statement P.W.19 registered a case as crime No 91/97 of Munnar Police Station under Sections 323 and 324 I.P.C against the deceased. On coming to know of the registration of crime No 91/97 of Munnar Police Station under Ext. P15 F.I.R in the occurrence involved in the case, P.W.20 took over the investigation. Ext.P21 is the wound certificate recorded at the Government Hospital, Adimali in relation to the injuries sustained by the accused and Ext.P22 is the final report referring the case as abated consequent on the death of the deceased. The doctor who issued Ext.P21 wound certificate was not examined by the prosecution. Ext.P21 would show the history and alleged cause of injury as the deceased beating the accused with cycle chain and attempting to stab him. The following injuries are recorded in Ext.P21. 1. Linear contusion 5x1 cm over the scapular region (L) side of the back. 2. Another linear contusion 4x1 cm obliquely placed just below the scapular region (L) side. 3. Another linear contusion transverse 4x1 cm below the right scapular 4. Linear abrasion 3x5 cm over the (R) scapular region. 5. Confusion 3x2 unite abrasion (R) chest wall near the …… junction. 6. Bitten mark 6 teeth over the (L) shoulder. 7. Contusion 3x2 cm (L) forearm. Where injuries are found on the accused and if the accused raises a plea of private defence, the plea has to be considered in the facts and surrounding circumstances obtaining in the case. Failure to explain the injuries on the accused probabilises the plea of self defence. 10. Prosecution has not taken any steps to explain away the injuries sustained on the body of the accused. True, it cannot be stated as a universal rule that whenever injuries are found on the body of the accused person a presumption must be raised that it is due to the exercise of right of private defence. Apex court in Laxman Singh v. Poonam Singh (AIR 2003 S.C. 3204) has held that the defence has to establish that the injuries so caused on the accused probabilises the version of the right of private defence and the non explanation of the injuries sustained by the accused at or about the time of occurrence in the course of altercation is a very important circumstance. The apex court in Rizan and another v. State of Chhatisgarh (AIR 2003 S.C. 976) held that 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. True, non explanation of the injuries as such may not probabilise the case of private defence. All the same, coupled with other relevant facts this also is a circumstance which can always be taken note of by the court. 11. We may now examine the testimony of the occurrence witnesses, P.Ws 4,5,12,13 and 15 to 17 who were examined by the prosecution as occurrence witnesses. P.W.4, a friend of the deceased, stated that he saw the incident and deposed in cross-examination that there was scuffle between the accused and the deceased and the deceased attempted to stab the accused and on the intervention of P.W.5 and certain others they were separated. Later deceased took M.O.2 wooden handle of spade. P.W.4 as well as P.W.5 wanted the deceased to follow, but did not. Later P.W.4 also left the scene. P.W.4 got the information that somebody had attacked the deceased and then he went to the scene of occurrence. He deposed he had not seen the accused following the deceased with a chopper. He deposed he had not seen the accused following the deceased with a chopper. He has also disowned his statement to the police that he saw the accused stabbing the deceased. The witness was declared hostile. We will deal with the evidence of P.W.5 later. Now we will examine the evidence of P.W.12. She deposed that she had seen the deceased putting a cycle chain around the neck of the accused and the accused was dragged to the courtyard of her house. She also deposed that P.Ws 5 and others separated the accused and the deceased. In cross-examination she further stated that it was the deceased who followed the accused with M.O.2. She deposed that she had seen the deceased putting a cycle chain around the neck of the accused and the accused was dragged to the courtyard of her house. She also deposed that P.Ws 5 and others separated the accused and the deceased. In cross-examination she further stated that it was the deceased who followed the accused with M.O.2. Thereupon the accused tried to leave the place, but the deceased followed him. This witness was also declared hostile. P.W.13 also deposed that it was the deceased who followed the accused with M.O.2 and the deceased attacked the accused and the accused defended it. In cross-examination she stated that the accused had not inflicted any injury on the deceased. This witness was also declared hostile. P.W.15 is yet another witness examined on the side of the prosecution as occurrence witness. He also deposed that the deceased had beaten the accused with a cycle chain and putting the cycle chain around the neck he was dragged. He however deposed that it was the deceased who followed the accused with M.O.2 and the deceased had beaten the accused with it. It was at that juncture accused defended the same with a chopper. This witness was also declared hostile. P.W.16 is another witness examined by the prosecution as occurrence witness. He deposed that he had seen the deceased attacking the accused with cycle chain again and that the accused tried to ward off the same. This witness was also declared hostile. P.W.17, another occurrence witness, deposed that he had seen accused and the deceased quarrelling each other on the date of occurrence and that he had not seen any weapon with the accused. This witness was also declared hostile. The court below then believed the evidence of P.W.5, father of the deceased. P.W.5 has categorically stated in chief examination about the scuffle between the accused and the deceased. Further, he had also deposed that though he had separated them, the deceased had taken a stick from the courtyard of P.W.12 and proceeded to the shop. He also deposed; that he and his wife went to the tea shop ahead and the deceased was following them. In cross-examination P.W.5 had specifically stated that he had given a different version in the C.D. Statement marked as Ext D1. 12. He also deposed; that he and his wife went to the tea shop ahead and the deceased was following them. In cross-examination P.W.5 had specifically stated that he had given a different version in the C.D. Statement marked as Ext D1. 12. The evidence of P.W.5 would clearly show that there was a scuffle between the accused and the deceased and on the intervention of P.Ws 5 and P.W.4 there were separated. Even after separation, the evidence of P.Ws 5 would indicate that the deceased had taken M.O.2 from the property of P.W.12. Further he had deposed that he along with his wife and P.W.4 proceeded to his tea shop and that the deceased was following them. If the deceased was following them, we fail to see how P.W.5 had witnessed the incident after separating the deceased and the accused from the scuffle. At this juncture, the evidence of P.W.4 assumes significance. P.W.4 is none other than the friend of the deceased and also a close neighbour of P.W.5. Though he was declared hostile there is no reason to disbelieve the evidence of P.W.4. We have no reason to think that he was trying to help the accused. The facts would indicate that he was a friend of the deceased and it was P.W.4 who went to the residence of P.W.12, separated the deceased and the accused and then went to the tea shop of P.W.5, father of the deceased. P.W.4 has categorically stated that it was the deceased who had attacked the accused and even after separating them the deceased remained there with a stick. P.W.4 deposed that he had not seen the accused following the deceased. All the occurrence witnesses except P.W.5 are unanimous in their version that even after separating the accused and the deceased from the scuffle, the deceased did not leave the place and instead took M.O.2, a fact which even P.W.5 has admitted. 13. Evidence of interested witness: P.W.5 is an interested witness. The trial court in our view has committed grave error in discarding the evidence tendered by the other occurrence witnesses and accepting the evidence of P.W.5 in toto. 13. Evidence of interested witness: P.W.5 is an interested witness. The trial court in our view has committed grave error in discarding the evidence tendered by the other occurrence witnesses and accepting the evidence of P.W.5 in toto. The apex court in Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 S.C. 1622) held as follows: “In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses to order to see that the offender is punished. This is human psychology and no one can help it. In Harijana Narayana v. State of Andhra Pradesh (AIR 2003 S.C. 2851) the apex court held there is no such universal rule as to warrant rejection of the evidence of a witness merely because he/she was related to or interested in the parties on either side. In such cases if the presence of such a witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of the surrounding circumstances and probabilities of the case to be true, it can provide a good and sound basis for conviction of the accused. Evidence in each case has to be considered from the point of trustworthiness and from the angle as to whether it inspires confidence in the mind of the court to accept the same and the question of credibility and reliability of a witness has to be decided with reference to the way he fared in cross-examination and the nature of impression created in the mind of he court. Reference may also be made to the decision of the apex court in Sucha Singh v. State of Punjab (AIR 2003 S.C. 3617) and Bhargavan v. State of Kerala (2003 AIR SCW 6745). The evidence of P.W.5 as such cannot be appreciated in isolation. It has to be tested in the light of the evidence tendered by other occurrence witnesses. Being the father of the deceased, P.W.5 had naturally an axe to grind against his son’s slayer while giving evidence. But even in that process, the truth unwittingly came out of his mouth when he confessed that after the accused and the deceased who were locked in a scuffle were separated, his son, the deceased had picked up a stick. This shows that the deceased was determined to pursue his attack on the accused rather than silently following his parents to the tea shop. The evidence of the other occurrence witnesses is more trustworthy and reliable. All the occurrence witnesses are consistent in their version except P.W.5. The evidence of P.W.5 would clearly show that he had not witnessed the incident fully since he had left to his tea shop along with P.W.4. It is highly difficult to believe that he had witnessed the actual incident which took after P.W.5 left the place leaving the deceased behind. The prosecution, in our view, was attempting to give a garbled version before court and therefore has not succeeded in establishing the case beyond reasonable doubt. 14. Private defence: We will now examine the plea of private defence raised by the accused. The court below rejected the plea of private defence accepting the version of P.W.5 that it was; the accused who chased the deceased with the chopper and cut him to death. The court below took the view that the question of accused exceeding the right of private defence does not arise as the accused did not have any right of private defence to be exercised as the aggression from the part of the deceased was over when the deceased left the courtyard of the house of P.W.12 and entering on to the road and the defence case of the deceased having chased the accused to the backyard of the house of P.W.12 and then to the road with M.O.2 weapon held in his hand was disbelieved. On facts, we have found that the version given by P.W.5, after he had left the place of occurrence, cannot be believed. On the other hand the version given by other occurrence witnesses is more reliable and trustworthy. In fact, even P.W.5 has stated that the deceased had taken a stick after the deceased and the accused were separated from the scuffle. P.W.5 also stated that he was going ahead to the tea shop and that the deceased was behind him which would indicate that P.W.5 might not have seen the occurrence. We are therefore inclined to accept the version given by the other occurrence witness which is more probable and reliable. All the occurrence witnesses except P.W.5 have categorically stated that it was the deceased who had chased the accused with M.O.2 and that the accused was trying to ward it off with M.O.1 chopper. 15. We have already found on evidence as held by the court below that it was the deceased who had started the aggression. The deceased had assumed the posture of an aggressor which is clear from his conduct of dragging the accused by putting a cycle chain on his neck. In our view, a reasonable apprehension had developed in the mind of the accused and it subsisted and continued even after that. The deceased came to achieve a purpose, that is to see that the accused is forcibly taken to the house of P.W.6 which he did not succeed while the accused had no purpose to be achieved. In order to achieve that subject the deceased dragged the accused from the courtyard of P.W.12 putting a cycle chain around his neck. The accused was always a lone ranger, while the deceased was in the company of his parents and friend, P.W.4 and all the occurrence witness are neighbours of P.W.5 the father of the deceased. Deceased had initially a cycle chain with him, later he had M.O.2 with him. It is to ward off the attack of the deceased that the accused evidently took M.O.1. The necessity of averting the impending danger was definitely there when the parents of the deceased left the place. Deceased had initially a cycle chain with him, later he had M.O.2 with him. It is to ward off the attack of the deceased that the accused evidently took M.O.1. The necessity of averting the impending danger was definitely there when the parents of the deceased left the place. The previous conduct of the deceased dragging the accused from the house of P.W.12 and also putting cycle chain around the neck of the accused would indicate that there was every reason for the accused to develop a feeling that the accused was not safe especially when the deceased himself had taken M.O.2 evidently to attack the accused, going by the version of the occurrence witnesses and he did attack the accused also. 16. Right to private defence was available to the accused since he had suddenly felt the necessity of averting the impending danger which was not of his creation. 17. The apex court in Kulwant Singh v. State of Punjab (AIR 2004 S.C. 2875) held that whenever a right of private defence is claimed, the matter must be judged from the nature of occurrence, the circumstances in which it had occurred and whether the person claiming such right had acted legitimately. For the purpose of proving the same, the accused may rely upon the materials on records brought by the prosecution in addition to examining the witnesses and adducing positive evidences, if any. Every person has a right of private defence of body under section 97 and in the event it is found that he was entitled to exercise the same, he necessarily must be held to have a right to cause death in terms of Section 100 of the Indian Penal code if there was a reasonable apprehension that death or grievous hurt would be caused. The court further held that for arriving at a finding as to whether the accused had legitimately exercised his right of private defence, it is necessary to pose the question as to who had started the assault. The court further held that for arriving at a finding as to whether the accused had legitimately exercised his right of private defence, it is necessary to pose the question as to who had started the assault. We have already found that it was the deceased who had assumed the posture of an aggressor by putting a cycle chain around the neck of the accused and that condition persisted till the end since the deceased did not succeed in his endeavour to take the accused to the house of P.W.6 to steer clear of the tell-tale story whether P.W.6 had abused the deceased. Under such circumstances the accused had exercised the right of private defence, of course with M.O.1 chopper. The facts would indicate that he was only defending himself and there is nothing to show that he was retaliating. He had entertained a reasonable apprehension that death or grievous hurt would be caused to him if it is not averted. 18. The apex court in Laxman Singh’s case, supra (AIR 2003 S.C. 3204) held that 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. The court held that 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. 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 accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension of attack from the side of the accused. 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 accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension of attack 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 materials on record. We are satisfied that the accused in this case has discharged that burden. 19. The accused in this case, in our view, has not exceeded the right of private defence. We have already indicated that the accused has always nurtured a feeling that his life was in danger at the hands of the deceased from the very moment the decreased dragged him from the house of P.W.12 putting a cycle chain on his neck, till the end. There is nothing to show that the accused was retaliating, and there is no reasons for retaliation because the accused had no purpose to achieve but the deceased had, and he chased and attacked the accused in order to achieve his object. Under such circumstances, in order to ward off the attack of the deceased, the accused took M.O.1 and when he was attack he defended himself and in that injuries were caused to the deceased. The fatal injury is injury No.7 which is a cut on the front of the forearm just above the wrist. Nature of the injuries sustained by the deceased would indicate that the accused was never the aggressor and he had no motive or intention to attack the deceased. No injury has been caused either on the chest or on the abdomen or any other vital part of the body. Major injury was found on the forearm. From the nature of the injuries as well as the surrounding circumstances it is established that he was only defending himself to ward off the attacks of the deceased. In such circumstances, we are inclined to hold that the acts attributed to the acused were done in exercise of the right of private defence and that he has not exceeded the right by causing the death of his well built and formidable assailant. In such circumstances, we are inclined to hold that the acts attributed to the acused were done in exercise of the right of private defence and that he has not exceeded the right by causing the death of his well built and formidable assailant. We, therefore, set aside the conviction and sentence entered against the accused by the court below. The appellant/acused is found not guilty of the offence of murder punishable under Section 302 I.P.C. and is acquitted of the same. He shall be set at liberty and released from prison forthwith unless his continued detention is needed in connection with any other case.