JUDGMENT : A.S. Naidu, J. - The judgment and order of acquittal dated 9th April, 1997 passed by learned Addl. Sessions Judge, Jajpur acquitting the accused Respondents from the charges u/s 302/34 of the Indian Penal Code, in short, "IPC" and Section 27 of the Arms Act in Sessions Trial No. 123/10 of 1996, is assailed in this Government Appeal. 2. The prosecution case, sworn of unnecessary details, is that on 3.6.1995 at about 12.30 P.M. while Babaji Jend was entering into his homestead land, accused Panchanan fired at him with his double barrel gun. The informant, P.W.1 on hearing the sound of fire came out of his house and saw Panchanan standing near the door of the main entrance with the gun and firing 3 4 rounds aiming at his father Babaji Jena, consequently Babaji having suffered gun shot, fell down. Soon thereafter, accused Panchanan, his wife Subasini, daughter Sasirekha (Litu) and Madhurekha (Tutua) being armed with sticks came to the deceased and started assaulting. At that juncture, the neighbours gathered at the spot, but they were not permitted to go near the body of Babaji as Rdjrekha (Mitu), another daughter of Panchanan, who was also holding a double barrel gun was standing near the body and threatened the onlookers. It is alleged that she also fired 3 4 rounds, which hit the nearby walls of the house, coconut trees etc. The informant after the incident rushed to the Bari Police Out post and lodged the F.I.R.(Ext.1). On the basis of the said F.I.R., police went to the spot and took care of the situation. In course of investigation, inquest was held over the body of Babaji, the same was sent for post mortem examination, blood stained earth, wearing apparels as well as one double barrel gun was seized, different persons were examined and their statements were recorded u/s 161, Code of Criminal Procedure, incriminating materials were sent to the serologist for chemical examination, and the gun was sent for ballistic examination. After completion of investigation, charge sheet was submitted against two accused persons in G.R. Case No. 629 of 1995 in the court of learned SDJM, Jajpur. After completion of investigation, charge sheet was submitted against two accused persons in G.R. Case No. 629 of 1995 in the court of learned SDJM, Jajpur. On verification of the documents submitted by the police and on being prima facie satisfied, learned SDJM took cognizance of the offence u/s 302/34, IPC and Section 27 of the Arms Act and committed the case to the Court of Session for trial. 3. The plea of the defence was one of denial. The accused Panchanan in his statement recorded u/s 313, Code of Criminal Procedure stated that on 3.6.1995 Babaji, his sons, daughter and wife forcibly entered and gherowed his house and were planning to attack him and his children. It is alleged that land disputes were pending between Babaji and Panchanan leading to several criminal cases. It is further stated that accused Panchanan is a physically handicapped person and was able to walk only with the help of crutches and he had two grown up daughters. Taking the advantage of the said fact, Babaji Jena had harassed him in past and did not permit him to cultivate his lands since 1993. He had intimated the said fact and the harassment meted out to him to the Chief Minister, local police and other public officers, but none were able to provide him any protection. On 15.8.1994 he took resort to hunger strike before the office of the Superintendent of Police and the Superintendent of Police and Collector assured him to take steps. On 21.8.1994 the deceased and his sons were arrested, but after they were released on bail, they became more violent and launched attack after attack on the family of the accused persons. Being severely harassed and humiliated by such attacks, accused Panchanan again approached the police. Taking the help of police on 29.5.1995 Panchanan and his labourers ploughed the land, but Babaji and his sons threatened the labourers. On 3.6.1995, Babaji and his sons once again attacked house, family members and property holding deadly weapons like pharsa, gun etc. and tried to murder Panchanan and his family members. They broke open the door and were successful in assaulting his wife. For self defence and to protect him and his family members, Panchanan made blank fire from his gun. In short, the plea of the defence was that of private defence. 4. and tried to murder Panchanan and his family members. They broke open the door and were successful in assaulting his wife. For self defence and to protect him and his family members, Panchanan made blank fire from his gun. In short, the plea of the defence was that of private defence. 4. In order to substantiate their case, prosecution got examined ten witnesses. Out of them, P.W.1 is the son of Babaji and is an eye witness to the occurrence, P.W.2 is a villager and an eye witness, P.W.3 is another villager and is an eye witness, P.W.4 is another son of Babaji and also an eye witness, P.W.5 is the informant and a co villager and was a witness to the occurrence, P.W.6 is also a witness to the occurrence, P.W.7 is the doctor, who conducted autopsy over the dead body of Babaji, P.W.8 is a seizure witness in whose presence the bullet pouch containing six bullets tied to the waist of Panchanan was seized, P.W.9 is the I.O. and P.W.10 is the S.I. of Bari Police Station, who received the F.I.R. and is also a seizure witness. 5. The accused persons in order to establish their plea, got examined five witnesses. Out of them D.W.1 is the Deputy Superintendent of Police of the Grievance Cell. He had made enquiry to the charges levelled by Panchanan against Babaji and found the same to be correct, D.W.2 is the C.I. of Police, Jajpur who had also received several complaints from Panchanan against his brother Babaji Jena and had registered 4 5 criminal cases against deceased Babaji, D.W.3 is the constable of Bari Police Station, who was deputed to guard the house of accused Panchanan for a period of 15 days, D.W.4 is a neighbour, who saw deceased Babaji and his sons shouting and threatening to set fire to the house of Panchanan, D.W.5 is another villager, who deposed that the son of Babaji asked them not to plough the land. 6. Learned Sessions Judge after discussing the evidence in extenso and taking into consideration the past conduct of the parties, came to the conclusion that there was previous enmity between accused Panchanan and Babaji, who were brothers, with regard to the landed properties. Accused Panchanan had no male issues and was living in his house with two grown up daughters, whereas, Babaji had three sons. Accused Panchanan had no male issues and was living in his house with two grown up daughters, whereas, Babaji had three sons. Several criminal cases were initiated against Babaji on the basis of allegations made by Panchanan. On the basis of the direction issued by the Superintendent of Police, enquiry was made by Deputy Superintendent of Police and it was found that Babaji was trying to harass Panchanan taking advantage of the fact that he was crippled being a patient of polio. It is also found that the local police being satisfied that there was threat to the life and property of accused Panchanan had deputed a constable to guard the house for a period of fifteen days and that soon after the said constable was removed, the incident took place. After a threadbare analysis of the oral evidence adduced on behalf of the prosecution, learned Addl. Sessions Judge came to the conclusion that the version with regard to the scenario of the alleged crime becomes, unreasonable as the evidence is not trustworthy in so far as material facts are concerned. On the other hand, learned Addl. Sessions Judge, after examining the witnesses adduced by the defence, held that the defence case appears to be more probable while the prosecution appears guilty of suppression of material facts. On the basis of such conclusion, the Sessions Court held that the prosecution totally failed to prove their case against the accused persons and the accused persons were entitled to right of private defence and acquitted them. 7. Learned Counsel for the State strenuously took this Court through the evidence both oral and documentary and submitted that the finding of the Sessions Court to the effect that Babaji and his sons tried to enter into the house is not correct. In fact they were walking on the road and were trying to enter into their own house, but Panchanan without any rhyme or reason took out his gun and fired at Babaji causing vital injuries. It is further submitted that in view of the evidence of eye witnesses to the effect that accused Panchanan indiscriminately fired at Babaji, in consequence whereof, he died out of gun shot injuries, the Sessions Court committed illegalities in acquitting the accused persons. According to learned Addl. Govt. It is further submitted that in view of the evidence of eye witnesses to the effect that accused Panchanan indiscriminately fired at Babaji, in consequence whereof, he died out of gun shot injuries, the Sessions Court committed illegalities in acquitting the accused persons. According to learned Addl. Govt. Advocate, the plea of private defence is not available to the accused persons and the Sessions Court acted illegally and with material irregularity in holding that the accused persons in order to save their life and property fired at the deceased. In short, it is submitted that the conclusions arrived at by Sessions Court are based more on surmises and conjectures than evidence adduced and it is a fit case where the order of acquittal needs interference. 8. Mr. Dhal, learned Counsel for the Respondents, on the other hand, while repudiating the submissions made by learned Counsel for the State, submitted that the prosecution has not come to the court with clean hands. They have developed the story stage by stage. Perusal of the evidence of the eye witnesses would clearly reveal that they were speaking blatant lies. The spot map and the evidence of the independent witnesses clearly establishes that taking advantage of the fact that police guard was removed Babaji and his sons being armed with deadly weapons entered into the house of the accused persons and assaulted the inmates,. According to Mr. Dhal, the accused Panchanan being a physically handicapped person and as there was no other male member in the family, to save his own life and the life of his family members and to protect his property had no way out but to fire one bullet at Babaji, which hit him on his right hand. It is submitted that after receiving the bullet shot, Babaji became more violent and tried to challenge the accused, consequently, Panchanan had to fire for the second time. It is further submitted that though Panchanan had 6 7 bullets in his pouch and two bullets were loaded in the gun, he did not fire the same, which clearly reveals that he has not exceeded the right of private defence. Mr. Dhal further submitted that the Sessions Court has vividly discussed the evidence and the conclusions arrived at suffers from no infirmity and the said order of acquittal may not be interfered with. 9. Heard learned Counsel for the parties diligently. Mr. Dhal further submitted that the Sessions Court has vividly discussed the evidence and the conclusions arrived at suffers from no infirmity and the said order of acquittal may not be interfered with. 9. Heard learned Counsel for the parties diligently. Perused all the evidence meticulously. Admittedly, the death of Babaji was caused by gun shot injuries, which fact is also established from the evidence of the doctor (P.W.7), who had conducted post mortem. On dissection, P.W.7 found the gun shot injury above the medial aspect of right upper arm 4" above the elbow joint with 3" penetration. There was another gun shot wound over the lower part of the chest on the sternum. The cause of death was due to haemorrhage and shock resulting from the above injuries. Ext.7, is the post mortem report, which corroborates the statement made by the doctor (P.W.7) in court. Thus, there is no ambiguity that Babaji died due to gun shot injury. It is also admitted by accused Panchanan that he had fired twice, the first shot hit the right arm and the second one hit the chest. Thus, the only thing, which needs to be considered in this case, is as to whether the accused persons in furtherance of their common intention to cause death of the deceased had fired the gun resulting in the death of Babaji and/or as to whether the accused persons had fired at Babaji for self defence. 10. Admittedly, accused Panchanan is a lame man. Perusal of the entire evidence reveals that inter se disputes were pending between Babaji and Panchanan in respect of their joint family properties. Several criminal cases were initiated against Babaji. Accused Panchanan was assaulted on number of occasions. It also appears from the evidence of accused Panchanan that he had complained before the authorities of district administration as well as before the police with regard to the atrocities committed by Babaji and attempts made by him to assault Panchanan and his family members and to destroy his properties by setting fire. Evidence is also available to reveal that Babaji was not permitting Panchanan to get his lands cultivated and in fact Panchanan had taken police help to cultivate the land and on one occasion Babaji was arrested. Evidence is also available to reveal that Babaji was not permitting Panchanan to get his lands cultivated and in fact Panchanan had taken police help to cultivate the land and on one occasion Babaji was arrested. Being aggrieved by such action in past Babaji had attacked the house of Panchanan and on the basis of the complaint made by Panchanan, a police constable was deputed to guard the life and property of Panchanan for a period of fifteen days. The incident, it appears, took place the very next day police guard was removed from the house. Most of the eye witnesses are sons and relatives of Panchanan. According to the prosecution case, Babaji was entering into his house when Panchanan without any rhyme or reason fired at Babaji, which struck his right arm. This aspect of the case does not appear to be correct, inasmuch as the spot map as well as the evidence of the I.O. and the evidence of the defence witnesses reveal that the body of the deceased was found within the fenced compound of the accused. It further established that the house of Panchanan had a green fence all around with a gate on the front and the body was found lying under the verandah of the house of accused persons. This evidence clearly reveals that Babaji and others had entered into the house of Panchanan. There are some evidence to reveal that they were carrying deadly weapons. Apprehending danger to the property and person, Panchanan came out to his verandah with the gun and warned Babaji not to commit any mischief. When the latter did not listen to him, it appears from the evidence, he fired the first bullet, which hit the right arm of the deceased. From the evidence of P.W.4, who happens to be the son of the deceased Babaji, it appears that after Panchanan fired a bullet shot, which struck the right arm of Babaji, the latter (Babaji) challenged the accused persons and there was an altercation. At that juncture, the accused Panchanan fired the second bullet, which struck on the right chest of Babaji, thereby causing bleeding injury. The prosecution is bound by the said evidence, which clearly reveals that after being hit on right arm, Babaji challenged the accused and altercation continued. At that juncture, the accused Panchanan fired the second bullet, which struck on the right chest of Babaji, thereby causing bleeding injury. The prosecution is bound by the said evidence, which clearly reveals that after being hit on right arm, Babaji challenged the accused and altercation continued. P.W.10, the I.O. on receiving information reached at the spot and found that accused Panchanan was standing on the spot holding a gun and the dead body was lying inside the compound. He performed inquest over the dead body. Ext.20, the inquest report, reveals that the deceased was lying on the verandah of the house of the accused persons near the northern gate. The evidence of P.W.9, C.I. of Police, reveals that the village road runs in east west direction and the house of accused Panchanan and that of the deceased situate facing to each other on the opposite sides of the said road. The distance between the two houses is about 40 ft. The house and homestead of accused Panchanan was fenced by a green fence of about 3 ft. height. The front door of the house of accused Panchanan is about 20 ft. away from the said fence. The front door of the house of the deceased is about 10 ft. away from the road. He also stated that the dead body was found lying on the outer court yard of the house of accused Panchanan. 11. A cumulative reading of the evidence of the said witness vis ? vis the spot map leaves no room for doubt that the dead body was found lying between the green fence and the house of accused Panchanan. The said fact unerringly reveals that Babaji and others had opened the gate attached to the fence and entered inside the house belonging to accused Panchanan. Thus, the prosecution story to the effect that the deceased was going to his own homestead when the accused fired the gun at him causing his death, is an after thought and is blatantly false. The Sessions Court has discussed the evidence and has arrived at the same view, which we find cogent and consistent with the evidence. 12. Thus, the prosecution story to the effect that the deceased was going to his own homestead when the accused fired the gun at him causing his death, is an after thought and is blatantly false. The Sessions Court has discussed the evidence and has arrived at the same view, which we find cogent and consistent with the evidence. 12. The only other question, which needs to be considered, is as to whether after firing the first bullet, there was any occasion for Panchanan to fire the second bullet, in other words, as to whether Panchanan had exceeded his right of private defence. 13. The most salient principles of right of private defence of body are as under: (i) There is no right of private defence against an act which is not in itself an offence under the Code; (ii) The right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is conterminous with the duration of such apprehension. That is to say, right avails only against a danger imminent, present and real; (iii) It is defensive and not a punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence. In other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "With golden scales" what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bonafide defender "If he with the instinct of self preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack". (iv) The right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of Section 166. (See Yogendra Morarji v. State of Gujarat AIR 1986 S.C. 660 14. (iv) The right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of Section 166. (See Yogendra Morarji v. State of Gujarat AIR 1986 S.C. 660 14. Scrutiny of the evidence in the case in hand in the touchstone of the aforesaid principles laid down by the Supreme Court, we find that the dispute between the accused and his brother Babaji was prevailing since long and several criminal cases were pending against the deceased. Taking advantage of the physical incapability of the accused Panchanan, Babaji in the past had tried to harass him in different ways. There are also allegations with regard to the assault on Panchanan and his family members. On the basis of the allegations made by Panchanan, his brother Babaji was arrested. Babaji and his sons had tried to cause loss to Panchanan by setting fire to the house and causing damage to the crops. They were not permitting Panchanan to carry on the cultivating operation in his own field. These facts are very clear from the evidence of the police officials, who were examined as defence witnesses as well as the report submitted by Superintendent of Police after field enquiry. It further appears that as the police authorities were satisfied that there was threat to the life and property of Panchanan, a constable was deputed to guard his house for a period of fifteen days. The evidence further reveals that soon after the guard was removed, Babaji and his sons entered into the house of Panchanan to attack him and his family members. Apprehending imminent danger to his life and property, Panchanan came out from the house with his double barrel gun and cautioned Babaji. Fact remains, Babaji entered into the fence surrounding Panchanan's house and crossed 20 ft. in between the gate and house that too with his henchmen being armed. It is apparent that both the brothers were in dragger's head. It further appears from the evidence that Panchanan prevented/ warned Babaji and when he did not listen, he fired at him. After being injured by the first gun shot, Babaji as would be evident from the prosecution evidence, challenged Panchanan and an altercation ensued. It is apparent that both the brothers were in dragger's head. It further appears from the evidence that Panchanan prevented/ warned Babaji and when he did not listen, he fired at him. After being injured by the first gun shot, Babaji as would be evident from the prosecution evidence, challenged Panchanan and an altercation ensued. Consequently, to protect him as well as the life of his family members and property, Panchanan fired for the second time, which hit the chest of Babaji and he fell down. 15. The aforesaid scenario of facts would attract the first two clauses of Section 100 of IPC. The combined effect of these two clauses is that taking the life of the assailant would be justified on the plea of private defence, if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. In other words, a person who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of self defence inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened. It appears that Panchanan apprehended imminent danger and there was no reasonable mode of escape as Babaji and his henchmen had entered into his house being armed with deadly weapons and he had no other way out but to fire at Babaji to save his own life, the life of his two grown up daughters and wife as well as properties. 16. The falsity and exaggeration of the prosecution case is further apparent from the fact that the allegation with regard to holding any gun by Mitu @ Rajrekha Jena, daughter of Panchanan could not be established. Neither any other gun was seized nor the prosecution could establish the said fact by adducing any cogent evidence. In fact, in course of hearing learned Counsel for the State also conceded that there is no material to connect Respondent No. 2 with the alleged crime. 17. Admittedly, Panchanan had fired twice. He had a pouch containing seven bullets. The gun was also loaded. But then he did not use the same, which indicates that he had not exceeded his right of private defence and used only that much of force, which was necessary to evade any imminent danger to his life, the life of his family members and property. He had a pouch containing seven bullets. The gun was also loaded. But then he did not use the same, which indicates that he had not exceeded his right of private defence and used only that much of force, which was necessary to evade any imminent danger to his life, the life of his family members and property. From the discussions made in the preceding paragraphs and after going through the evidence adduced by both sides, we are satisfied that the defence case appears to be more probable. On the other hand, it appears that the prosecution has tried to improve the case from stage to stage and is also guilty of suppression of material facts and tried to keep the Court in darkness in appreciating the true as well as real situation. After going through the entire judgment, we are also satisfied that the Sessions Court has discussed the evidence threadbare and the conclusions arrived at do not suffer from any infirmity. 18. Considering all these aspects and taking into consideration the over all picture, we are not inclined to interfere with the order of acquittal. Accordingly, the Government Appeal fails and is dismissed. Final Result : Dismissed