JUDGMENT 1. - This appeal has been preferred by appellant Nathu Khan s/o Rashul Khan, who has been convicted by the court of Addl. Sessions Judge, Fast Track, Pali in Sessions Case No.25/2001 vide judgment and order dated 27.2.2002 for offence punishable under Section 302, IPC and has been sentenced to undergo life imprisonment and to pay a fine of Rs.2000/-, in default of which, to undergo six months' rigorous imprisonment. 2. As per the prosecution case, on 19.6.2000 at 6.45 p.m. at Police Station, Kerala, a wireless message has been received from the Control Room, Pali that a telephonic message received from one Murlidhar from Indroko-ki-dhani informing that one Nathu has given beating to his son Shamsuddin and the victim Shamsuddin is lying unconscious on the spot. The SHO of village Kerala Narayan Singh, after recording in the Rojnamcha( copy of which is Ex. P.22A), with Constables Bagdu Ram and Gaje Singh, went on the spot. On spot, one Bagdu Khan s/o Jamaluddin r/o Indroko-ki-dhani, gave a written report Ex. P.6 to said SHO Narayan Singh. In the written report, he mentioned that Nathu Khan s/o Rashul Khan is his elder father's son and, therefore, by relation, he is brother. Nathu Khan had son Shamsuddin. On 19.6.2000, Shamsuddin, came to complainant Bagdu Khan for help in constructing bara. On Shamsuddin's request, complainant Bagdu Khan went to construct bara for Shamsuddin and started constructing wall. In day's time, they could construct wall upto 2 1/2 ft.. At about 5 p.m., Shamsuddin's father Nathu Khan came from the back side door of his house, which is towards bara where the construction was going on. Nathu Khan came with one iron rod. Seeing Nathu Khan coming towards Shamsuddin, the complainant ran away, leaving behind Shamsuddin in the bara and reached near the gate of one Jamaluddin. Thereafter, he stated that after him, Shamsuddin was coming with naked sword in his hand. Near the gate of the bara, Nathu Khan came in front of his son Shamsuddin. Shamsuddin shown his naked sword to Nathu Khan, but Nathu Khan, with intention to kill Shamsuddin, inflicted injury from his iron rod which was in the hand of Nathu Khan. Shamsuddin immediately fell down but Nathu Khan did not stop beating Shamsuddin by iron rod. Shamsuddin was shouting for help and hearing his voice, neighbour Saddique's wife Dhagalai came out and she also saw the incident. Shamsuddin immediately fell down but Nathu Khan did not stop beating Shamsuddin by iron rod. Shamsuddin was shouting for help and hearing his voice, neighbour Saddique's wife Dhagalai came out and she also saw the incident. In the written report submitted by the complainant, thereafter, he mentioned that Shamsuddin died on the spot because of injuries. It is stated in the FIR that Shamsuddin is Nathu Ram's earlier wife's son and Nathu Khan did not want to give any of his property to Shamsuddin. Therefore, Shamsuddin was living separate from Nathu Khan. Shamsuddin wanted to construct bara but Nathu Khan was not allowing Shamsuddin to construct bara. 3. In sum and substance, deceased Shamsuddin was son of accused Nathu Khan by his earlier wife and after second marriage, Shamsuddin and Nathu Khan had no good relation and both were living separate and they had dispute for property. In this background, this incident occurred wherein accused-appellant's son Shamsuddin died. 4. As per the prosecution itself, deceased Shamsuddin had naked sword in his hand before the accused injured the victim Shamsuddin when he was found lying dead on spot. The sword was tightly caught in the hand of deceased Nathu Khan. The photos of Shamsuddin with sword have been produced by the prosecution. From the pocket of pent of Shamsuddin, one knife was also recovered and was seized. The site map and site report were prepared, which are Ex.P.11 and Ex.P.12. The panchnama of the body of deceased Shamsuddin was prepared in presence of various witnesses and panchnama is Ex.P.2. The post-mortem was conducted and post-mortem report Ex.P.13 was obtained. The sword, which was in the hand of Shamsuddin, was also seized and seizure memo Ex.P.8 was drawn. Deceased Shamsuddin's pent and shirt, which the deceased was wearing, were taken into custody vide report Ex.P.9 in the presence of witnesses Ahmed Khan and Suban Khan. The plain soil and blood soil were also taken from the spot and for that, report Ex.P.13 was prepared. The articles were duly sealed and, thereafter, they were sent for chemical examination, to the Forensic Science Laboratory(FSL). The accused Nathu Khan was arrested and arrest memo Ex. P.14 was prepared in the presence of witnesses Kamaruddin and Mangi Lal. The plain soil and blood soil were also taken from the spot and for that, report Ex.P.13 was prepared. The articles were duly sealed and, thereafter, they were sent for chemical examination, to the Forensic Science Laboratory(FSL). The accused Nathu Khan was arrested and arrest memo Ex. P.14 was prepared in the presence of witnesses Kamaruddin and Mangi Lal. In the presence of same witnesses Kamaruddin(PW-18) and Mangi Lal(PW- 17), Nathu Khan's clothes, were seized vide seizure memo Ex.P.15 and they were put in a packet and were sent to the FSL. Accused Nathu Khan voluntarily gave information(Ex.P.16) under Section 27 of the Evidence Act and in pursuance of that information, iron rod (pipe) was recovered in the presence of same witnesses Kamaruddin and Mangi Lal and recovery memo(Ex. P.17) was prepared. The said articles were also sealed and were sent to the FSL. After completion of investigation, challan was submitted in the court of Addl.Chief Judicial Magistrate(Environment), Pali, from where the case was committed to the court of Sessions Judge, Pali, which was transferred to the court of Addl. Sessions Judge, Fast Track, Pali. The charge for offence punishable under Section 302, IPC was framed against the appellant which was denied by the appellant and the appellant sought trial. 5. The prosecution produced as many as 20 witnesses. The accused was examined under Section 313, Cr.P.C. The accused-appellant in his statement under section 313, Cr.P.C., stated that a day before the incident, he went to village Pichiyak. In the evening at 5 p.m., he came to his house and found that his son Shamsuddin constructed a wall then he went to said bara, where one more person was there. Seeing the appellant on the spot, the said other person ran away. Shamsuddin, the victim was having a naked sword in his hand and when the appellant accused tried to come out from bara, Shamsuddin(the victim) inflicted blow from naked sword upon the appellant, from which the appellant suffered injuries in his index finger, but the injury was not severe because of the reason that the blow hit on the iron pipe which was in the hand of the accused-appellant. Finding grave danger to the life of the appellant, the appellant hit from the iron pipe upon the deceased but the deceased did not drop the sword and, therefore, the fear to the life of the appellant continued and, therefore, the accusedappellant hit the victim on his legs, from which the victim Shamsuddin fell down. Seeing the condition of victim Shamsuddin, the accused-appellant sat near the victim sadly. He remained with the body till the police came there and arrested him. He stated that his arrest has been shown late inspite of the fact that he was arrested just after the incident and from the spot itself. He also stated that Bagdu Khan did not submit any report to the police. The appellant stated that he had no intention to kill Shamsuddin. He also stated that on earlier occasions, when Shamsuddin committed theft and sold the land even then he did not give beating to Shamsuddin. 6. The accused-appellant, in his defence, produced eight witnesses. 7. The trial court vide impugned judgment rejected all the pleas of the appellant of sudden and grave provocation or his plea of right to private defence and convicted the appellant as aforesaid. Hence this appeal. 8. The learned counsel for the appellant vehemently submitted that even the case of the prosecution itself is that the victim Shamsuddin, who is son of the appellant-accused, had naked sword in his hand, whereas the appellant had only iron pipe in his hand. As per the prosecution, there was dispute between the father and the son for the property of the appellant(father). The victim, the son of the appellant, tried to grab the land of the appellant and in that the appellant might have went towards his son Shamsuddin so as to prevent him from encroaching upon the land and in that effort, the victim might have misunderstood and shown his naked sword to his own father and inflicted blow upon his father which enraged appellant. However, the victim's father appellant took the sword blow on iron pipe and this way, the appellant could save himself. It is submitted that the sword and iron pipe had marks which could have been only because of the blow by sword over the pipe. However, the victim's father appellant took the sword blow on iron pipe and this way, the appellant could save himself. It is submitted that the sword and iron pipe had marks which could have been only because of the blow by sword over the pipe. Those marks have been discarded by the trial court merely on the basis of assumption that the marks were not proved to be fresh one on the sword and the iron pipe. It is also submitted that victim Shamsuddin kept the sword so tightly caught in his hand that even after his death, the sword remained tightly in the hand of the victim. This fact itself is sufficient to prove that there was eminent danger to the life of the appellant. In that situation, the appellant, to save himself from the danger to his life, inflicted injuries only by the iron pipe. He even did not try to snatch sword from the hand of the victim. It is submitted that in any case, there could not have been any intention to kill the victim by the appellant. The injuries inflicted by the appellant were only in exercise of his right of private defence. 9. The learned counsel for the appellant submitted that it is true that some of the injuries, out of ten, are on the head of the victim, but there were injuries on the lower part of the legs, which clearly shows that the appellant, firstly, tried to save himself by inflicting injuries on the legs of the victim and when he saw that the victim is not throwing the sword away, then he might have inflicted more injuries from iron pipe, which might have hit inadvertently on the head of the victim. The appellant could not know that because of his hitting with iron pipe, the victim may die. 10. The learned counsel for the appellant vehemently submitted that in fact the report was given to the Control Room when the victim suffered only injuries and he was not dead. The report (Ex. P.6) has been obtained by the investigating agency to concoct the new story and plant witness Bagdu Khan. It is submitted that the complainant Bagdu Khan was not present on the spot nor he saw the incident. The report (Ex. P.6) has been obtained by the investigating agency to concoct the new story and plant witness Bagdu Khan. It is submitted that the complainant Bagdu Khan was not present on the spot nor he saw the incident. The person, who was with Shamsuddin at the relevant time on the spot, ran away and in his place, Bagdu Khan has been planted by the prosecution. It is also submitted that from the statement of the witnesses, it is clear that the prosecution deliberately suppressed the genesis of the offence. The presence of Bagdu Khan is highly doubtful and none of the other witness saw how the incident occurred and they might have seen only the end result. 11. The learned Public Prosecutor and the learned counsel for the complainant vehemently submitted that in view of the direct evidence supported by the medical evidence and in view of the independent neighbour's evidence and in view of the clear enmity between the appellant and his son, the prosecution fully established the case of killing of the victim Shamsuddin by Nathu Khan. 12. We considered the submissions of learned counsel for the appellant and learned Public Prosecutor and perused the record. 13. PW-15 Bagdu Khan submitted the written report Ex. P.6. The complainant Bagdu Khan stated that he got the report Ex. P.6 written from Murlidhar whereas his statement is not finding support from said Murlidhar PW-1 who, in his statement only stated that when he was going to bus stand from his house, PW-2 Ayub Khan met him and told him that Nathu Khan and Shamsuddin are fighting. Ayub Khan also informed that incident occurred 10-15 minutes ago and it was because of constructing Padawa by Shamsuddin in his Bara. Shamsuddin is lying unconscious on spot. On this information from Ayub Khan, PW-2 Murlidhar went to a telephone booth and gave information to Kotwali Pali on telephone. Thereafter, he (Murlidhar) came back to his village. After some time, police come there and he went with the police on spot. Therefore, Murlidhar PW-1 is not corroborating the statement of complainant Bagdu Khan (PW-15) for his writing the report Ex. P.6. Statements of witnesses Murlidhar and Ayub Khan are corroborated by the evidence of investigating officer. Thereafter, he (Murlidhar) came back to his village. After some time, police come there and he went with the police on spot. Therefore, Murlidhar PW-1 is not corroborating the statement of complainant Bagdu Khan (PW-15) for his writing the report Ex. P.6. Statements of witnesses Murlidhar and Ayub Khan are corroborated by the evidence of investigating officer. PW-1 Murlidhar who stated that Control Room, Pali received information about this incident and from there, investigating officer Muldidhar got the information about the incident and, thereafter, he went on the spot. The witness PW-2 Ayub Khan who appears to be first person to inform other, the witness Murlidhar, in his statement, stated that complainant Bagdu Khan was not on the scene of occurrence. This is one aspect which casts doubt about the credibility of complainant. 14. In the report Ex. P.6 it has been mentioned that at the time of incident neighbours Saddique's wife also saw the incident. The said Dhagalai also has been produced by the prosecution witness as PW- 4. She did not support the prosecution and, therefore, was declared hostile and in cross-examination she clearly denied her earlier statement Ex. P.1. Dhagalai is absolutely unreliable witness as she after denying seeing the incident, even shown her ignorance about the fact whether Shamsuddin is alive or dead. She even stated that she has no knowledge whether the accused is his maternal-uncle or not. Be it as it may be, she is not corroborating the statement of the complainant Bagdu Khan. 15. In the report Ex. P.6, complainant Bagdu Khan did not state that other witnesses PW-11 Liyakat Ali and PW-12 Hazi Mohd. also came on spot, but in his statement in Court, he stated that PW-11 Liyakat Ali and PW-12 Hazi Mohd. were also came on spot. The witnesses PW-11 Liyakat Ali and PW-12 Hazi Mohd. were examined by the police after 10 days. The witness PW-11 Liyakat Ali and PW- 12 Hazi Mohd. gave identical statements and stated that village children shouted that victim Shamsuddin and accused Nathu Khan are fighting and hearing the voice of the children, both the witnesses came on spot and found Nathu Khan was beating Shamsuddin by iron pipe and Shamsuddin was lying on the ground and was shouting for help. gave identical statements and stated that village children shouted that victim Shamsuddin and accused Nathu Khan are fighting and hearing the voice of the children, both the witnesses came on spot and found Nathu Khan was beating Shamsuddin by iron pipe and Shamsuddin was lying on the ground and was shouting for help. Both the witnesses did not intervene and stated that after seeing the incident they left the place and they even did not went near the victim Shamsuddin. PW-11 Liyakat Ali says that next day he left for Bhatinda whereas PW-12 Hazi Mohd. stated that on next day, he went to another village Sarwad to fill his B.Ed. Form. The witness PW-11 Liyakat Ali stated that he remained at Bhatinda for 3-4 days and came back from Bhatinda to his village but did not meet with the police nor his statement was recorded for 10 days. The same is the position of PW-12 Hazi Mohd. who stated that he came again to his village after 6-7 days and his statement was also recorded by the police after 10 days. PW-11 Liyakat Ali and PW-12 Hazi Mohd. both are neighbours yet their names have not been mentioned in the report Ex. P.6 by the complainant Bagdu Khan and their statements were recorded by the investigating officer after 10 days. The explanation for late recording of statements of PW-11 Liyakat Ali and PW-12 Hazi Mohd., in the facts is weak explanation and it is unsafe to believe the explanation and it casts doubt about the presence of these two witnesses on spot. 16. If we look into the statement of PW-15 Bagdu Khan himself then the Act of appellant was only that seeing the wall which was constructed by his son Shamsuddin against the wishes of the appellant, the accused-appellant came with one iron pipe towards the bara and thrown the pipe towards the person/labour standing there. 16. If we look into the statement of PW-15 Bagdu Khan himself then the Act of appellant was only that seeing the wall which was constructed by his son Shamsuddin against the wishes of the appellant, the accused-appellant came with one iron pipe towards the bara and thrown the pipe towards the person/labour standing there. The witness Bagdu Khan stated that " ukFkw [kkWa vius edku ds ihNs ls njokts ls yksgs dk lfj;k ysdj esjh rjQ ekjk fQj eSa ogka ij 'kelqnhu dks xsV ij NksM+dj vk x;kA fQj 'kelqnhu ryokj ysdj lSQVh ds fy, esjs ihNs ihNs vk x;k] og xsV ls ckgj vk x;k Fkk fQj ukFkw [kkWa ihNs ls nkSM+dj le'kq[kkWa ds vkM+s fQj x;k fQj le'k[kkWa us ryokj E;ku esa ls ckgj ryokj vk/kh fudkyh fQj uFkw[kkWa us yksgs dh ikbZi ls le'kqnhu ds flj esa ekjh " 17. As per the prosecution itself, there was no eye witness who saw the incident from beginning except Bagdu Khan then it is clear from his (Bagdu Khan's) statement that, annoyed appellant came from his house with iron pipe or rod (sariya) from back door of his house which was opening towards Bara in dispute and thrown said iron rod/pipe towards Shamsuddin and Bagdu Khan, upon which PW- 15 Bagdu Khan left the place and Shamsuddin came with sword. As per the statement Nathu Khan came in front of Shamsuddin and Shamsuddin drawn out his sword from the cover and in that situation, appellant inflicted the injury by iron pipe on the head of deceased Shamsuddin. From this statement itself it is clear that the appellant Nathu Khan, provoked by raising wall by his son Shamsuddin against his wishes and in consequence thereof, only challenged his son Shamsuddin by throwing iron pipe towards him and the person working with him. When appellant came in front of his son, he drew his sword from cover and spontaneously the appellant inflicted injury on the head of his son Shamsuddin by said iron pipe. When appellant came in front of his son, he drew his sword from cover and spontaneously the appellant inflicted injury on the head of his son Shamsuddin by said iron pipe. The above evidence clearly shows that all it happened on spur of moment without pre-meditation of the appellant and finding the sword in the hand of his son with full action of drawing the sword from the cover, which might have caused a reasonable fear in the mind of appellant that in case he will not use the force, he will be killed by the blow of sword from the victim Shamsuddin. In that fit of anger, he inflicted more injuries on the victim Shamsuddin and some of which hit the face of the victim Shamsuddin then it must not have taken much time. At this stage, it will be worthwhile to mention here that as per evidence of all most all the witnesses of the prosecution and the Photographs placed on record it is clear that even when the victim was lying injured on ground, he did not drop the sword from his hand and continued to keep the sword in erect position then there is possibility that the appellant might have feared that in case, he will try to run away, the victim may follow him and may inflict the injury by sword and may also kill him. Not only this possibility cannot be ruled out but it is more probable and it might have resulted into inflicting of more injuries by the appellant upon his son Shamsuddin. All three witness PW-15 Bagdu Khan, PW-11 Liyakat Ali and PW-12 Hazi Mohd. stated in their statements that Shamsuddin (Samsu Khan) did not become unconscious with first blow but he was shouting lying on the ground, therefore, it is a case where appellant could have reasonably developed fear as the victim Shamsuddin was conscious and had sword in his hand. 18. Section 100 Indian Penal Code recognises right of private defence of a person extending to causing the death of other. 18. Section 100 Indian Penal Code recognises right of private defence of a person extending to causing the death of other. To claim a right of private defence extending to voluntary causing death, the accuse must show that there were circumstances giving rise to reasonable grounds for apprehension that either death or grievous hurt could be caused to him, as has been held by the Hon'ble Apex Court in the case of Vishvas Aba Kurane v. State of Maharashtra, AIR 1978 SC 414 . If we look into the statements of the witnesses of the prosecution itself only, then from the statements of the prosecution witnesses itself, it is clear that first the accused challenged his son, but not by using any force and only threw iron pipe/rod towards him and became bare handed and he even did not hurt his son or his son's companion labour, may he be complainant Bagdu Khan, even then the victim, the son of the appellant drew the sword and then only the appellant inflicted blow by iron pipe (rod) upon his son. The circumstances clearly created a reasonable ground for the apprehension that in case the appellant will not inflict injury upon the victim, the death of the appellant would be caused. From the facts it cannot be said that the appellant exceeded his right of private defence or has caused more harm than which was necessary for his own defence. Hon'ble the Apex Court in the case of Wassan Singh v. The State of Punjab, 1996 (1) SCC 458 held that the reasonable apprehension of the accused that grievous hurt will be caused to him, must be judged from the subjective point of view of the accused and cannot be subjected to microscopic and pedantic scrutiny. In the present case, we cannot ignore the fact that the appellant was father of the victim and the son drew sword against his father(appellant) which could have provoked him for inflicting injuries upon his son and in that situation also, it cannot be said that the appellant has exceeded his right of private defence. In view of the above reason, the conviction of the appellant for offence under Section 302, IPC cannot be sustained, as the appellant has exercised his right of private defence only without exceeding said right. 19. Yet we would like to consider the evidence of other witnesses produced by the prosecution. In view of the above reason, the conviction of the appellant for offence under Section 302, IPC cannot be sustained, as the appellant has exercised his right of private defence only without exceeding said right. 19. Yet we would like to consider the evidence of other witnesses produced by the prosecution. The other witness is PW-3 Smt. Maina. She had no knowledge about the incident, therefore, she did not state anything against the appellant except that the appellant contracted two marriages and Shamsuddin was son of appellant's first wife. PW-5 Nizam Khan is also appellant's father's brother's son and he stated that he saw Shamsuddin lying dead on spot. He also said nothing against the appellant. PW-6 is Farida who is wife of the deceased Shamsuddin and she was at his parent's place since 10 days from the time of incident. She is also not witness to the incident. She only stated that the appellant Nathu Khan and victim Shamsuddin had no good relations as deceased Shamsuddin was son of the earlier wife of Nathu Khan. PW-7 Bhanwari is daughter of appellant Nathu Khan and she stated that her father gave beating to his brother Shamsuddin several times and Nathu Khan's second wife gave beating to her also. She is also not witness to the incident and dispute between the appellant and his son is not issue as it is admitted case that they had some dispute in between themselves. PW-8 Shreenoor Mohd. is father-in-law of deceased Shamsuddin. He is also not the eye witness and he proved the fact of dispute between the appellant and his son. Therefore, witness to incident are only PW-15 Bagdu Khan, PW-11 Liyakat Ali and PW-12 Hazi Mohd. From their evidence it is clear that PW-11 Liyakat Ali and PW-12 Hazi Mohd did not saw how the incident started, and that fact is most relevant in the facts of this case and looking to defence of the appellant of his right of private defence. So far as PW-15 Bagdu Khan is concerned from his statement it is proved that injury was inflicted by the appellant after the sword was drawn from the cover by the Shamsuddin. 20. So far as PW-15 Bagdu Khan is concerned from his statement it is proved that injury was inflicted by the appellant after the sword was drawn from the cover by the Shamsuddin. 20. We also considered the judgments relied upon by the learned counsel for the complainant, some of which are (1) Shivalingappa Kallayanappa and others v. State of Karnataka, AIR 1995 SC 254 , (2) Kashmiri Lal and others v. State of Punjab, AIR 1997 SC 393 and (3) Raj Pal and ors. v. State of Haryana, 2006 (9) SCC 678 , in support of the contention that right of private defence is not available to the aggressor and merely because some quarrel between the deceased person and the accused, the accused cannot claim benefit on the plea of his right of private defence. The facts of the cases referred above are entirely different and have no application to the facts of this case. Here in this case, the dispute about title was not relevant because of the fact that the incident occurred outside the bara and was between the father and son and, for creating fear, it is not necessary that the person who is claiming his right of private defence, should actually suffer some grievous injury on his body. In this case, as held above, drawing of sword by the victim could have sufficiently caused apprehension for the appellant that he will be killed by the victim. 21. In view of the above discussion, we hold that the victim Shamsuddin died because of the injuries caused by the appellant but those injuries were caused by the appellant in exercise of his right of private defence and that too without exceeding his said right. In view of the above, the appellant's conviction under Section 302, IPC cannot be sustained. 22. Consequently, the appeal of the appellant is allowed for offence punishable under Section 302, IPC and his conviction and sentence are set aside. The appellant be released forthwith, if not needed in any other case.Appeal Allowed *******