Judgment ( 1. ) TWELVE persons were charge-sheeted and prosecuted under section 147, 148, 341, 294, 323/149, 324/149, 302/149 of IPC. Out of them, 10 persons have been acquitted of the charge leveled against them but Dulichand and Sukhdev have been convicted and sentenced under sections 307, 323 and 307/34 and 323/34 of IPC respectively. ( 2. ) THIS criminal appeal has been preferred under Section 374 (2) of cr. P. C. being aggrieved by the judgment, finding and sentence dated 27-07-1993 passed by IInd Additional Sessions Judge, East Nimar, khandwa, in Sessions Trial No. 91/92 whereby appellants dulichand and Sukhdev have been convicted under sections 307, 307/34, 323 and 323/34 of IPC and sentenced to R. I. for 10 years with a fine of Rs. 100. 00 in default R. I. for 1 month and R. I. for 6 months and fine of Rs. 100. 00 in default R. I. for 1 month respectively. The jail sentences were directed to run concurrently. ( 3. ) THE prosecution case, in brief, is that on 7. 11. 1991 at 10. 00 a. m. , Dashrath and Manish were going to bring auto riksha. Ramsumer, Sukhdev, Dulichand and Badri prevented them, used filthy language and started beating. Ramsumer was armed with Farsa, dulichand with Ballam, Sukhdev and Badri with rods. Sukhdev inflicted rod blows to Dashrath on his head and right hand. Ramsumer and Badri caused Marpeet to Manish and he sustained injury on his head. Ramnath reached there to intervene the matter was assaulted by Sukhdev and Dulichand. Several persons of locality have witnessed the incident. This report was made by Bhagwandas at kotwali Khandwa on the same day at 10. 45 a. m. whereupon Crime no. 654/91 under section 341, 324, 294/34 IPC was registered. Sanjay alias Sanju alias Dashrath, Manish and Ramnath were medically examined and injuries were found on their person as mentioned in medical report Ex. P-6-A, P-7-A and P-8-A. Sanju died in the hospital. Panchnama of his dead body was prepared. Post mortem examination was conducted by Dr. Narendra Kumar Jain ( PW-16)who opined that the cause of death was due to shock and head injury-to brain within 24 hours of examination. Clothes of deceased were seized. Blood stained and controlled soil was seized from the spot. Blood stained shirt of Dulichand was seized. Maps were prepared. Post mortem examination was conducted by Dr. Narendra Kumar Jain ( PW-16)who opined that the cause of death was due to shock and head injury-to brain within 24 hours of examination. Clothes of deceased were seized. Blood stained and controlled soil was seized from the spot. Blood stained shirt of Dulichand was seized. Maps were prepared. Seized articles were sent for chemical examination to FSL sagar and report received. Statements of witnesses were recorded under section 161 Cr. P. C. After completing investigation, charge sheet was filed in the Court of CJM East Nimar Khandwa wherein crime Case No. 407/91 was registered which was committed on 23. 4. 1992 to the Sessions Court for trial. ( 4. ) THE appellants were charged under sections 148, 341, 294, 302, 324, 323, 323/149 that on 7. 11. 1991 at 10. 00 a. m. at railway quarter Broadgage Godown Ghaspura Khandwa, they were member of unlawful assembly and in prosecution of the common object armed with deadly weapons like rod and Ballam committed offence of rioting; that on the same date, time and place, they wrongfully restrained them, abused filthy language against them; caused Marpeet to Manish and Ramnath and on the same date, time and place committed murder by intentionally (or knowingly) causing death of sanju alias Sanjay alias Dashrath. ( 5. ) THE appellants abjured the guilt and claimed to be tried mainly contending that Sanju, Mkanish and Ramnath were beating ramsumer by Farsa, Ballam and hockey and 2 of his fingers were cut. If they would not have been saved, they would have killed him. ( 6. ) THE prosecution examined as many as 16 witnesses but the defence did not examine any witnesses. After appreciating the evidence trial Court acquitted Ramsumer, Badri, Prakash, Prahlad, kallu, Ramchand, Shankar, Ramashrey, Ramnath, Pradeep Kumar from the charges levelled against them. Dulichand and Sukhdev were also acquitted from the charge under section 148, 341, 294, 302, 324 and 323/149 of IPC but convicted them under sections 307, 307/34, 323, 323/34 of IPC and sentenced thereunder as sated in para No. 2 of judgment. Being aggrieved by the judgment, finding and sentence, the appellants preferred this appeal on the grounds mentioned in the memo of appeal. ( 7. Being aggrieved by the judgment, finding and sentence, the appellants preferred this appeal on the grounds mentioned in the memo of appeal. ( 7. ) THE learned counsel for the appellants has submitted has that the appellants were not charged under section 307 of IPC in spite of trial Court has convicted them under this section. The finding is erroneous and perverse. Learned counsel further submitted that one incident has been bifurcated into two. Thus trial Court has constructed a new case which was not even the case of prosecution. One of the co-accused ramsumer has sustained grievous injuries and prosecution has failed to explain the injuries. The appellants were justified in exercising the right of private defence of body. Thus they have not committed any offence and deserve to be acquitted. ( 8. ) ON the other hand, Pankaj Dixit, P. L. , appearing for the State has supported the judgment, finding and sentence passed by the trial court mainly contending that the appellants have exceeded the right of private defence and they have been rightly convicted by the trial court and hence it does not call for any interference. ( 9. ) THE main point for consideration in this appeal is whether the trial court has committed an illegality in convicting and sentencing the appellants under section 307, 307/34, 323 and 323/34 of IPC ? ( 10. ) I have perused the entire case and the evidence recorded therein. ( 11. ) LEARNED counsel has submitted that as the incident was the same but the trial Court has bifurcated it. This was not even the case of prosecution that there were 2 incidents but trial Court has constructed a new case and convicted the appellants. Learned counsel further submitted that there is no evidence to come to the conclusion that the injuries are dangerous to life caused to Sanjay at the beginning. If that might have been caused, then he could not have gone to take revenge being armed with deadly weapons and attacking the accused persons. The appellant were entitled to right of private defence. If that might have been caused, then he could not have gone to take revenge being armed with deadly weapons and attacking the accused persons. The appellant were entitled to right of private defence. The circumstances were there to exercise right of defence, therefore the trial Court ought to have come to the conclusion that no offence was committed, hence no conviction ought to have been made under sections 307 and 307/34 of IPC to which they were not even charge, therefore, the appellants are entitled for acquittal. ( 12. ) FIRST of all it has to be seen as to what was the cause behind this incident. According to Manish (PW-3), cause was that one day before this incident at about 10. 00 p. m. Sukhdev inflicted chain to sanju. This was the reason of quarrel. According to FIR Ex. P-1 lodged by Bhagwandas (PW-1), the dispute was on account of collection of subscription at the time of Janmastmi. According to ishwar Prasad (PW-4) a day before incident, appellants along with other persons were gambling, his brothers were standing there. They abused them but he picked up the matter. They went to their house. In the night, police raided the house of Dulichand and registered a case against him. He was suspecting that they have informed the police. So these are the different reasons behind this incident. There is no uniformity in the evidence regarding the real, apparent and proximate cause of this incident. ( 13. ) ACCORDING to Manish (PW-3) when he and Sanju were going on bicycle, Dulichand assaulted to Sanjay by bat on his head. He also assaulted him but he ran away to his house to call his uncle ramnath. Ramnath also went there but he was also beaten. ( 14. ) ACCORDING to his statement Dulichand alone assaulted them but the contradiction has been brought from his police statement Ex. D-2 in this respect wherein he has stated that Sukhdev caused his marpeet and Ramsumer to Ramnath. ( 15. ) RAMNATH (PW-2) has stated that Dulichand, Suikhdev, ramsumer and Badri caused Marpeet to Sanju and he was also beaten by them and Manish was also beaten by the accused persons. In cross-examination, he has stated that he does not know how the incident started. However, he has admitted that quarrel took place in front of house of Dulichand. ( 16. In cross-examination, he has stated that he does not know how the incident started. However, he has admitted that quarrel took place in front of house of Dulichand. ( 16. ) IF we see the statements of Manish (PW-3) and Ramnath (PW2), there is contradiction in their evidence regarding causing of injuries by accused persons. ( 17. ) BOTH these witnesses have admitted that they have not seen bhagwandas (PW-1) at the place of occurrence. Bhagwandas (PW-1)has deposed that Sukhdev caused Marpeet to Sanju and Dulichand and Sukhdev caused Marpeet to Ramnath but he has not seen any body inflicting injuries to Manish. In cross-examination, he has stated that he is not in a position to depose how the quarrel started. The quarrel took place in front of Kholi No. 55 in which appellant dulichand resides. He is not in a position to depose how his brothers reached there. ( 18. ) IT appears that Bhagwandas (PW-1) has not seen the incident as Manish and Ramnath both have admitted that they have not seen him at the place of occurrence. ( 19. ) TULSABAI (PW-5) who is mother of deceased Sanju has also given evidence regarding causing Marpeet to her son Sanju but has admitted in cross-examination that she did not see Bhagwandas, ramnath and Manish there. Sanju was lying in a gutter. She carried him to hospital. ( 20. ) ASHOK (PW-9) has stated that Dulichand and Sukhdev caused marpeet to Sanju but he himself has not witnessed the incident. Sanju himself stated about it. He has further deposed that he carried Sanju to his house and left there but after " hour, he heard the cries, went there and saw that Sanju, Ramnath and Manish were lying in a wounded condition in front of house of Dulichand. In cross-examination, he has admitted that Sanju himself went on foot to the house. Further he has admitted that he has not seen anybody inflicting injury to the injured person. ( 21. ) BY this evidence, the prosecution has tried to establish that appellants caused Marpeet to Sanju, Manish and Ramnath. FIR (Ex. P-1) was lodged by Bhagwandas (PW-1) which was recorded by devisingh (PW-13 ). Medical examination of injured persons were done by Dr. M. K. Mishra (PW-6) who found the injuries on the person of Manish, Sanju and Ramnath as mentioned in medical report Ex. P6 to P-8-A. Dr. FIR (Ex. P-1) was lodged by Bhagwandas (PW-1) which was recorded by devisingh (PW-13 ). Medical examination of injured persons were done by Dr. M. K. Mishra (PW-6) who found the injuries on the person of Manish, Sanju and Ramnath as mentioned in medical report Ex. P6 to P-8-A. Dr. M. K. Mishra has clearly stated that injuries to Sanju could not be caused by fall. This witness also examined Ramsumer, co-accused who has been acquitted by trial Court and found the injuries on his person as mentioned in medical report Ex. D-5. ( 22. ) SANJU died afterwards, his post mortem examination was done by Dr. Narendra Kumar Jain (PW-16) who opined that cause of his death was due to shock and head injury. Injury to brain caused within 24 hours. ( 23. ) FROM the evidence adduced in the case, it is established that death of Sanju was homicidal and Manish and Ramnath sustained the injuries but the trail Court after extending the benefit of right of private defence to the accused persons acquitted them from the charge levelled against them and at the same time the trial Court came to the conclusion that the incident took place in 2 phases. One phase was when Manish and Sanju were going on bicycle and they were beaten by Dulichand and Sukhdev and the second phase was the quarrel which took place in front of house of Dulichand. For this second phase the trial Court found that no offence was committed. ( 24. ) LEARNED counsel for the appellants has submitted that there were no two incidents and finding of trial Curt regarding two incidents is erroneous. The contention of the learned counsel appears to be acceptable for the simple reasons that the prosecution case itself is not of two incidents. No two reports were lodged. No medical examination of the injured persons were done twice. Actually, incident though occurred at some interval of time at two places quite nearby but it formed the part of the sample incident. The incident appears to have been occurred like this. Manish and Sanju when going on bicycle Dulichand inflicted bat blows. Manish ran away to his house where he informed his uncle Ramnath. Sanju was brought by Ashok who came on foot and thereafter, they went to take revenge from Dulichand in front of his house where the quarrel took place. The incident appears to have been occurred like this. Manish and Sanju when going on bicycle Dulichand inflicted bat blows. Manish ran away to his house where he informed his uncle Ramnath. Sanju was brought by Ashok who came on foot and thereafter, they went to take revenge from Dulichand in front of his house where the quarrel took place. The witnesses have admitted that appellant Dulichand resides in kholi No. 55 and injured persons were found lying there. How they reached there ? The prosecution witness suppressed the fact as to how these injured persons came there in front of house of Dulichand. From the evidence, it is clearly established that they went there armed with sharp edged weapon to take revenge and to make quarrel. One of the co-accused Ramsumer sustained the grievous injuries because his 2 fingers were cut by sharp edged weapon for which the prosecution was launched against Manish and his uncle Ramnath under section 326 IPC. As is evident that Sanju himself came on foot to his house, if he might have sustained any grievous injuries at the hand of dulichand, then he would have not walked on foot, went their to take revenge. Therefore, it is crystal clear that he did not receive any grievous injuries at the time of when Dulichand inflicted blows by cricket bat. In absence of any evidence regarding the injury caused at the time being grievous or dangerous to life, no conviction could have been made under section 307 IPC. It was very difficult to ascertain as to what injury was caused at the first time. ( 25. ) LEARNED counsel for the appellants has also submitted that the appellants have been convicted under section 307 IPC without framing charge. The contention of the learned counsel seems to be acceptable for the simple reasons that the ingredients of Section 302 and 307 are different. The offence under section 307 cannot be said to be minor offence of Section 302 IPC. Therefore, no conviction ought to have been made without framing charge under section 307 IPC. ( 26. The contention of the learned counsel seems to be acceptable for the simple reasons that the ingredients of Section 302 and 307 are different. The offence under section 307 cannot be said to be minor offence of Section 302 IPC. Therefore, no conviction ought to have been made without framing charge under section 307 IPC. ( 26. ) LEARNED counsel of appellants has placed reliance on the decision rendered in Provincial Government, C. P. and Berar v. Abdul rahman, AIR (30) 1943 Nagpur 145, in which it has been held that "for the purpose of S. 307, what is material is the intention or knowledge, not the consequence of the actual act done for the purpose of carrying out the intention. Section 307 clearly contemplates an act which is done with the intention of causing death but which fails to bring about the intended consequence on account of the intervention of a cause operating independently of the volition of the agent. " ( 27. ) LEARNED counsel further submitted that Sanju, Manish and ramnath themselves went to pick up the quarrel and caused grievous injury to Ramsumer. In such circumstances, appellants were justified in exercising their right of private defence. Learned counsel has placed reliance on the following decisions: (1) V. Subramani v. State of Tamil Nadu 2005 AIR SCW 1311. Apex Court has held thus : "para-11. 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 expression 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 legitimately 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 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 up 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 necessarily 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 others v. Delhi administration (AIR 1968 806) 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 1897)Mohinder Pal Jolly v. State of ; (1979 SC 577 ). Sections 100 to 101 define the extent of the right of private defence of body. Musheer Khan ( AIR 1977 SC 2226 ) and 1897)Mohinder Pal Jolly v. State of ; (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 (1979 Cri 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. ( 28. ) 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 whenever 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 probabilise 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 LJ 1736) I 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. 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 be caused 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. ( 29. 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. ( 29. ) SECTIONS 102 and 105, IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev v. State of Punjab 1 (1963) (l)l ( AIR 1963 SC 612 ), it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence. ( 30. ) IN order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Similar view was 11975 Cri expressed by this Court in Biran Singh v. State of Bihar ( AIR 1975 SC 87 ). (See: Wassan Singh v. State of Punjab (1996) 1 SCC 458 ; Sekar alias Raja Sekharan v. state represented by Inspector of Police, T. N. ( 2002 (8) SCC 354 ). ( 31. ) AS noted in Butta Singh v. The State of Punjab ( AIR 1991 SC 1316 ), a person who is apprehending death or bodily in jury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. ( 31. ) AS noted in Butta Singh v. The State of Punjab ( AIR 1991 SC 1316 ), a person who is apprehending death or bodily in jury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private-defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper-technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact-situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private-defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact. ( 32. ) THE right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. (See Vidhya Singh v. State of M. P. , ( AIR 1971 sc 1857 ) ). Situations have to be judged from the subjective point of view of the accused concerned, in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circum stances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objectivity which would be so natural in a Court room, or that which would seem absolutely necessary to a perfectly cool bystander. In adjudging the question as to whether more force than was necessary was used in the prevailing circum stances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objectivity which would be so natural in a Court room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances. ( 33. ) THE right of private defence is essentially a defensive right circumscribed by the governing statute i. e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of Offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived. (2) In the case of James Martin v. State of Kerala (2004) 2 scc 203 , the Apex Coru5 has held thus- "para-13. The only question which needs to be considered, is the alleged exercise of right of private defence. Section 96, Indian Penal Code provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression 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 legitimately 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. 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 up 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 necessarily 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 others v. Delhi administration, AIR 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. 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 of 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 adducting defence evidence. " The accused need not to prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil (given ?) case that the preponderance of probabilities is in favour of his plea. ( 34. ) 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 whenever 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 probabilise 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. 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 be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing or death. Sections 100 and 101, IPC define the limit and extent of right of private defence. ( 35. The burden is on the accused to show that he had a right of private defence which extended to causing or death. Sections 100 and 101, IPC define the limit and extent of right of private defence. ( 35. ) IN order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Similar view was expressed by this Court in Biran Singh v. State of Bihar, air 1975 SC 87 . (See Wasan Singh v. State of Punjab and Sekar v. State ). (3) Amjad Khan v. State AIR 1952 SC 165 , Apex Court has held thus "para-9. Neither the learned High Court Judges nor the sessions Judge has analysed these provisions. Both courts appear to be under the impression that actual looting of the appellants shop was necessary before the right could arise. In that they are wrong. Under S. 102 the right of private defence of the body commences "as soon as a reasonable apprehension of the danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed. " ( 36. ) EXAMINING the provisions we have set out above, it is evident that the appellant had no time to have recourse to the authorities. The mob or crowd had already broken into one part of the building and was actually beating on the doors of the other part. It is also evident that the appellant had reasonable grounds for apprehending that either death or grievous hurt would be caused either to himself or his family. The learned Sessions Judge has eloquently drawn attention to the lamentable consequences of communal frenzy in India and in Katni in particular, and he refers to the indiscriminate looting of Muslim shops in that town. The learned Sessions Judge has eloquently drawn attention to the lamentable consequences of communal frenzy in India and in Katni in particular, and he refers to the indiscriminate looting of Muslim shops in that town. So also the High Court holds that "looking to the circumstances which had existed in the country before and the fact that the trouble was between the refugees and the local Muslims it cannot be said that there would be no danger to the life of the appellant or at least of grievous hurt if the mob had entered his shop and he prevented it. The apprehension would undoubtedly be reasonable. " And we know that Muslim shops had already been broken into and looted Muslims killed in the rioting at zanda Chowk which preceded this. In our opinion, the high Court was wrong in thinking that the appellant had to wait until the mob actually broke into his shop and entered it. They have emphasized this in another part of their judgment also where they say that the shot was fired "when there was no looting at the shop and thus no right of private defence. " it was enough that the mob had actually broken into another part of the house and looted it; that the women and children of his family fled to the appellant for protection in terror of their lives and that the mob was actually beating at his own doors with their lathis and that Muslim shops had already been looted and Muslims killed in the adjoining locality. It was impossible for him to determine whether his shop would or would not suffer the same fate it he waited, and on the findings it was reasonable for him to apprehend death or grievous hurt to himself and his family once they broke in, for, he would then have had the right to protest and indeed would have been bound to do what he could to protect his family. The threat to break in was implicit in the conduct of the mob and with it the threat to kill or cause grievous hurt to the inmates; indeed the High Court Judges themselves hold that his own shop was menaced. The circumstances in which he was placed were amply sufficient to give him a right of private defence of the body even to the extent of causing death. The circumstances in which he was placed were amply sufficient to give him a right of private defence of the body even to the extent of causing death. These things cannot be weighed in too fine a set of scales or, as some learned Judges have expressed it, in golden scales. ( 37. ) WE have next to see whether the appellant used more force than was necessary, and here also we cannot use golden scales. He was entitled to cause death and he did not kill more than one man. He fired only two shots and, as the learned High Court Judges observe, he obviously aimed low. The High Curt hold the mob had moved up to his locality when he fired the shots, so the looting and the beating on the doors were not the isolated acts of a few scattered individuals. It was the mob that was doing it and in the High Courts words : "the very fact that in the town of Katni two shots should have struck four Sindhis and none else shows that the rival community was on the move in that area. " ( 38. ) IN our opinion, the appellant did not use more force than was necessary. Indeed, the firing, far from acting as a deterrent, spurred them on and they ransacked and looted the place. " (4) Victor alias Kallu v. State of M. P. 1966 MPLJ 877 -In this case, it has been held that " "in view of section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within any of the general Exceptions in the Penal Code is on the accused. All that may be necessary for the accused is to offer some explanation of the prosecution evidence, and if this appears to the Court to be reasonable, even though not beyond doubt and to be consistent with the innocence of the accused, he should be given the benefit of it. No such circumstances to bring the case of the accused within an Exception shall be presumed unless he has introduced by cross-examination of the prosecution witnesses or by adducing defence evidence or in his course of his examination under section 342, Criminal procedure Code, evidence which in the light of the circumstances creates a reasonable doubt that his plea may be true. The burden does not extend to proving the defence affirmatively beyond reasonable doubt, but the probability of the truth of the defence must be reasonable. This does not mean that mere statement of the accused is enough; what is necessary is that it must be reasonably probable. " (5) Lakshmi Singh v. State of Bihar AIR 1976 SC 2263 -In this case, it has been held that " in a murder case, the 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 from which the Court can draw the following inferences : (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version: (2) that the witnesses who have denied the presence of the injures on the person of the accused are lying on a most material point and therefore, their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. AIR 1968 SC 1281 and AIR 1975 SC 1674 . The omission on the part of the prosecution to explain the injures on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. There may be cases where the non-explanation of the injures by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the inquires 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. AIR 1975 SC 1478 . (6) Balwan Singh v. State of Hariyana JT 2005 (5) SC 351in this case, it is held that " the prosecution has not disclosed the true genesis of the occurrence. On the other hand, the evidence discloses that the occurrence took place in a different manner and at a different place in which three members of the defence party also suffered serious injuries. On the other hand, the evidence discloses that the occurrence took place in a different manner and at a different place in which three members of the defence party also suffered serious injuries. In these circumstances the appellant and the other co-accused were at least entitled to the benefit of doubt. " ( 39. ) SHRI Pankaj Dixit, Panel Lawyer appearing for the State/ respondent submitted that the appellants have exceeded the right of private defence. Therefore their conviction be maintained. ( 40. ) AS stated earlier, some of the prosecution witnesses have admitted that appellant Dulichand resides in Kholi No. 55. The quarrel took place in front of his house. Some witnesses have seen the injured persons lying in the wounded condition in front of his house. Sanjay was lying in a gutter. The prosecution witnesses expressed their inability to depose as to how these injured persons reached in front of the house of Dulichand. The prosecution has tried to suppress the real story because the inured persons themselves went there to take revenge armed with deadly weapons like Farsa, Ballam and hockey. Two fingers of co-accused Ramsumer were cut by sharp edged weapon. Razor was seized from Baniyan and shirt of deceased while preparing Panchama of his dead body. It clearly indicates that he himself went there to take revenge. The prosecution has failed to prove grievous injuries sustained by Ramsumer in this incident. The right of private defence of body accrued to the appellants has not been exceeded by them. Therefore, the trial Court was right while accepting the right of private defence of he accused persons but committed error in building a new case of 307 IPC by bifurcating the incident into two incidents. The trial Court was not justified constructing a new case which was never put up by the prosecution. Therefore, the finding of the trial Court regarding the guilt under section 307 IPC is clearly perverse and out of record which deserves to be set aside. ( 41. ) SINCE it has been held that there were no two incidents, and it was very difficult to ascertain whether Manish sustained such injures at the first time, therefore, conviction of appellants that these injuries were caused in the so called first incident is also not sustainable. Therefore this finding also deserves to set side. ( 42. ( 41. ) SINCE it has been held that there were no two incidents, and it was very difficult to ascertain whether Manish sustained such injures at the first time, therefore, conviction of appellants that these injuries were caused in the so called first incident is also not sustainable. Therefore this finding also deserves to set side. ( 42. ) ON the foregoing discussion, it can be said that appellants were entitled to right of private defence of the body and they have rightly exercised that right, therefore, they have not committed any offence hence entitled for acquittal. ( 43. ) CONSEQUENTLY, the appeal succeeds and is allowed. The judgment of conviction and sentence passed by the trial Court on 27/7/1993 is hereby set aside. The appellants are acquitted from the offence under sections 307, 307/34, 323 and 323/34. The appellants are on bail. Their bail bonds are cancelled. They be set at liberty. Fine amount, if paid, be refunded to them as per law.