JUDGMENT [Per: Hon’ble U.C. Dhyani, J.] In the instant case, culpable homicide of elder brother of informant was admitted by appellant, albeit in exercise of right of self-defence. Informant wrote a complaint (Ext. Ka-10) on 25.06.1993 which was lodged in P.S. Kotwali Haridwar on the same day at 8:30 pm. Occurrence took place on 25.06.1993 around 12:45 pm. Informant lodged FIR only when he came to know of death of his elder brother in the evening. The distance between the place of occurrence and P.S. concerned was 3 kilometers and hence there appears to be no delay in lodging FIR. 2. The complaint by appellant regarding same incident was received in the same Police Station on 25.06.1993 at 2:20 pm. Whereas the FIR lodged by appellant was registered as case crime no. 772 of 1993 (Ext. Ka-16) under Section 307 IPC and case crime no. 773 of 1993 under Section 25/27 Arms Act, the FIR lodged by brother of victim was registered as case crime no. 772A of 1993 for the offence punishable under Section 302 IPC. 3. After investigation of the case a charge-sheet (Ext. Ka-19) for the offence punishable under Section 302 IPC was submitted against accused-appellant. Accordingly, charge for the offence punishable under Section 302 IPC was framed by learned trial court . After conclusion of the trial, accused-appellant was convicted for the offence punishable under Section 304 IPC Part 1 and was sentenced to undergo imprisonment for life along with fine of Rs. 5000/-, in default of which he was directed to undergo six months’ further simple imprisonment. Aggrieved against the said judgment/order accused-appellant preferred this appeal. 4. A description of allegations against appellant thus becomes important. Informant Virendra Kumar Tomar, who was younger brother of victim Karan Singh, resided in Roorkee and was away at Haridwar in connection with his official duties. He received an information at 7:00 pm on 25.06.1993 that accused- appellant Doctor Rakesh Dutt Sharma killed informant’s elder brother Karan Singh around 12:15 pm. Victim was an employee of BHEL. Appellant was running a clinic in Haridwar. Both were close friends. Victim lent a sum of Rs. 1 lac to appellant, who had promised to repay the same on 25.06.1993. When victim went to clinic of appellant during lunch hours, appellant killed Karan Singh in appellant’s clinic. 5. Victim was an employee of BHEL. Appellant was running a clinic in Haridwar. Both were close friends. Victim lent a sum of Rs. 1 lac to appellant, who had promised to repay the same on 25.06.1993. When victim went to clinic of appellant during lunch hours, appellant killed Karan Singh in appellant’s clinic. 5. Culpable homicide of Karan Singh was admitted by appellant in his FIR but contrary version was given. Appellant admitted his presence in his own clinic. His meeting with victim on the day and time was also admitted but a plea of self-defence was taken. It was alleged that victim fired on appellant with his pistol which struck on appellant’s head. Appellant gave a blow of patal (a sharp edged weapon) on victim’s head in exercise of right of private defence. It was also mentioned in appellant’s FIR that he (appellant) snatched pistol of victim and fired on victim in self-defence. The incident resulted into death of victim. Two companions of victim standing outside the clinlc ran away. The condition of appellant was said to be serious and he was admitted in Government Hospital. 6. Thus appellant’s presence in his clinic on the day and time of incident, appellant’s meeting with victim and altercation between them was admitted by appellant. Material facts of the incident were also admitted by appellant in his written submission under Section 313 Cr.P.C. 7. The controversy thus narrows down to the question as to whether appellant committed culpable homicide in exercise of right of private defence or not? 8. Section 96 IPC says that nothing is an offence which is done in the exercise of right of private defence. The instinct of self-preservation is indomitable in a human being and this instinct has been recognized as a lawful defence in the laws of civilized countries. It has been so recognized in Sections 96-106 of the Indian Penal Code. The gist of these sections when read together is that the apprehension of danger to life must be real and well founded. The harm inflicted on the assailant should not be more than necessary demanded by the given situation. It should not exceed what is really necessary to repel the force of aggression. The apprehension must be imminent. It is the imminence of the danger the urgency of the situation which is material. The harm inflicted on the assailant should not be more than necessary demanded by the given situation. It should not exceed what is really necessary to repel the force of aggression. The apprehension must be imminent. It is the imminence of the danger the urgency of the situation which is material. Whether the apprehension was real or not is always a question of fact depending upon the circumstances and the background in which the incident had taken place. In evaluating the circumstances and background, one should place himself in the position of the accused and to assess how he would have reacted in that given situation and in face of that particular apprehension af danger. 9. The right of private defence itself is subject to certain basic restrictions. One of them is that harm inflicted in self-defence must be not more than what is legitimately necessary for the purpose of defence. 10. In the instant case, the deceased was the aggressor who hit the head of appellant by firing pistol. Appellant, in turn, gave blow of patal which hit victim’s head. Till this time, the appellant was well within the ambit of self-defence but the moment appellant snatched pistol of victim and struck 2-3 fires on victim which resulted in his death, appellant exceeded the right of self-defence. This is on the basis of the facts which emerged from the FIR of appellant. Needless to say that more or less the same facts emerge out from written submissions of appellant (under Section 313 Cr.P.C.). There are no material variations in FIR of appellant and his written submissions. 11. The right of self-defence rests on a general principle that when a crime is endeavoured to be committed by force, it is lawful to repel that force in self-defence. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. 12. So long as the threat lasts and the right of private defence can be legitimately exercised, it would not be fair to require that ‘he should modulate his defence step by step, according to the attack, before there is reason to believe that attack is over’ (Jai Dev vs. State of Punjab, AIR 1963 SC 612). 12. So long as the threat lasts and the right of private defence can be legitimately exercised, it would not be fair to require that ‘he should modulate his defence step by step, according to the attack, before there is reason to believe that attack is over’ (Jai Dev vs. State of Punjab, AIR 1963 SC 612). It is true that law does not expect from the person, whose life is placed in danger, to weigh with nice precision, the extent and the degree of the force which he employs in his defence, it also does not countenance that the person claiming such a right should resort to force which is out of all proportion to the injuries received or threatened and far in excess of the requirement of the case. In this connection the provision is contained in Exception 2 to Section 300 IPC which runs thus: “Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.” 13. In the instant case, the appellant caused more harm to the victim than was necessary. The said finding is strengthened by a comparative analysis of the anti mortem injuries sustained by the deceased and injuries sustained by appellant. 14. PW 1 Doctor Y.S. Bist who was posted as Medical Officer on 26.06.1993 at District Hospital, Haridwar conducted postmortem on the dead body of Karan Singh at 10 am. He found anti mortem injuries on the dead body of deceased. 14. PW 1 Doctor Y.S. Bist who was posted as Medical Officer on 26.06.1993 at District Hospital, Haridwar conducted postmortem on the dead body of Karan Singh at 10 am. He found anti mortem injuries on the dead body of deceased. He found incised wound 9 cm x 1 cm bone deep on middle of head 10 cm above the bridge of nose; incised wound 4 cm x 0.5 cm into bone deep on the head 8 cm above bridge of nose; lacerated wound 1.5 cm x 1 cm x bone deep on the forehead 6 cm above the bridge of nose; gunshot wound of injury 0.7 cm x 0.7 cm brain deep on the left side face just in front of left ear; contusion 4 cm x 3 cm around right eye; lacerated wound 1 cm x 0.5 cm on the right cheek; abraded gunshot wound 1.5 cm x 1 cm on the front of forearm, blackening present with fracture of both bones; abrasion 8 cm x 0.25 cm on the left forearm; abraded contusion 4 cm x 2 cm on left forearm; abrasion 1 cm x 0.5 cm on the outer side of arm; abrasion 6 cm x 0.5 cm in the arm and abrasion 6 cm x 1 cm on the back of lumber region. The cause of death was shock and hemorrhage as a result of anti mortem injuries. 15. The above anti mortem injuries suggest that had pistol not used by appellant, probably victim would have survived. Here appellant exceeded right of private defence. 16. When appellant was examined, gunshot wound of injury 0.5 cm x 0.5 em x scalp deep on right side head 4 cm from right eyebrow at 11 O' clock position was found along with gunshot wound of exit 1 cm x 0.5 cm x scalp deep on right side head 12 cm from right eyebrow at 11 O' clock position and abrasion on right thumb, as per medical report (Ext. Ka-11). 17. Thus a comparative study of both the reports (postmortem report containing anti mortem injuries of victim and injuries sustained by appellant) suggests that appellant far exceeded his right of self-defence. Where was the question of firing by appellant? The moment victim was disarmed, appellant’s right of self- defence was gone. There was no justification on the part of appellant to inflict firearm injuries on the victim. Where was the question of firing by appellant? The moment victim was disarmed, appellant’s right of self- defence was gone. There was no justification on the part of appellant to inflict firearm injuries on the victim. Once appellant overpowered victim and snatched his pistol, victim was disarmed. Once appellant disarmed victim of the weapon, appellant’s right of self-defence came to an end. There was no just reason why should appellant fire upon victim. It was a pure and simple case of murder. Although charge for the offence punishable under Section 302 IPC was framed against accused- appellant but he was convicted for the offence punishable under Section 304 Part 1 IPC. So long as patal was used by appellant he was well within the right of self-defence but the moment appellant got hold of pistol and fired on victim, his right of private defence came to an end. 18. Although the facts which emerged from rival contentions (FIR of brother of victim on the one hand and FIR on behalf of appellant on the other hand) are crystal clear, yet it is desirable to encapsulate the evidence thus brought on record. Shorn of unnecessary details, an overview of prosecution evidence and defence witness is being given thus. PW1 Doctor Y.S. Bist conducted postmortem on the dead body of deceased Karan Singh. PW2 Smt. Usha Kiran was unfortunate wife of deceased. She was informed by one Shiv Kumar that appellant killed her husband. PW3 S.I. Man Singh was signatory to inquest report (Ext. Ka-2) and certain other prosecution documents. He took in his possession a patal (a sharp edged weapon), one pistol along with five cartridges and four live cartridges. PW4 Virendra Kumar Tomar was the informant who proved his complaint (Ext. Ka-1). PW 5 Surat Singh was the unfortunate father of deceased. Informant Virendra Kumar informed him about Karan Singh’s death. PW 6 Vijay Singh was compounder in the clinic of appellant. On the fateful day victim came to appellant’s clinic at 12:00 noon. Victim asked the appellant to send his compounder outside. Since the same were lunch hours, therefore this witness went to his house (to take meals) and came back at 4:00 pm only to be informed that Karan Singh was murdered. PW 7 Doctor M.P. Garg examined appellant on 25.06.1993 at 1:10 pm and proved injury report (Ext. Ka-11). Appellant was conscious when he was medically examined. Since the same were lunch hours, therefore this witness went to his house (to take meals) and came back at 4:00 pm only to be informed that Karan Singh was murdered. PW 7 Doctor M.P. Garg examined appellant on 25.06.1993 at 1:10 pm and proved injury report (Ext. Ka-11). Appellant was conscious when he was medically examined. Injuries sustained by appellant would have been fatal if the same were received in the vital part. PW 8 Head Constable Ramanand proved FIR (Ext. Ka-12) lodged against appellant. He also proved copy of G.D. (Ext. Ka-13). PW 9 was the scribe of FIR (Ext. Ka-14) which was signed by appellant. Since scribe said that the same was not written at the behest of appellant, therefore PW 9 Jitendra Tiwari was declared hostile. PW 10 Satya Prakash was Sub Divisional Magistrate, Haridwar. On 25.06.1993 he recorded statement of appellant (Ext. Ka-15) which was, in fact, not a dying declaration but little elaboration of what appellant alleged in FIR. It may be noted here that the contents of FIR of appellant and written submissions under Section 313 Cr.P.C. were the same on material facts. FIR on behalf of appellant contained appellant’s signatures. PW 11 Head Constable Nempal Singh proved chik FIR (Ext. Ka-16) lodged on behalf of appellant and copy of G.D. (Ext. Ka-17). PW 12 C.O. Surendra Bahadur Singh proved site plan (Ext. Ka-18). He assumed investigation of the case on 29.06.1993, submitted charge-sheet (Ext. Ka-19) against accused-appellant and submitted final reports (Ext. Ka-20 and Ext. Ka-21) in respect of FIR lodged on behalf of appellant. PW 13 Head Constable Vedprakash went to Forensic Science Laboratory as per orders (Ext. Ka-22) of the court concerned. It was said by DW1 Ajab Singh Rana that victim took Rs. One lac from appellant in his presence. It is to be noted here that this fact was insignificant as to who took money from whom. The real controversy was whether the appellant exceeded right of self-defence in view of FIR lodged on his behalf as well as his statements in the form of written submissions under Section 313 Cr. P.C and the same is decided against the appellant on the basis of facts and circumstances thus brought on record. 19. There is no reason to interfere with the judgment and order passed by learned trial court. The same should accordingly be affirmed. P.C and the same is decided against the appellant on the basis of facts and circumstances thus brought on record. 19. There is no reason to interfere with the judgment and order passed by learned trial court. The same should accordingly be affirmed. Appeal is liable to be dismissed. 20. The appeal of the appellant is dismissed. The judgment and order passed by the learned Additional Sessions Judge/2nd FTC, Haridwar on 14.08.2002 is affirmed. The conviction and sentence awarded by learned trial court is also affirmed. Accused-appellant Doctor Rakesh Dutt Sharma is on bail. His bail is cancelled. He is directed to surrender before the court concerned to serve out the sentence thus awarded by the trial court and affirmed by this court. Let a copy of this judgment along with lower court record be sent back to the court concerned for compliance.