Justice Pankaj Naqvi, J.— 1.The present appeal was initially filed by two appellants, namely, Sughar Singh and Nishan Singh. Nishan Singh died during the pendency of the present appeal and, as such, the appeal as for him stood abated leaving it surviving only for and on behalf of the present appellant-Sughar Singh. 2.The appellant was convicted of offences under Section 302 I.P.C. and 27 Arms Act by the learned Xth Additional Sessions Judge, Etah in Session Trial No. 340 of 1981 by judgement dated 12.11.1982 and after being heard on the quantum of sentence, was directed to suffer rigorous imprisonment for life and for three years, respectively on the two counts the appellant had been found guilty of. 3.The written report Ext.Ka.-2 of P.W.-3 Gaindalal who happened to be the uncle of deceased-Hem Singh was the basis on which the F.I.R. of the case was drawn up. It was stated in the written report that there had been some altercation between deceased Hem Singh and the present appellant-Sughar Singh in the afternoon on 25.08.1980 in the field regarding the trespass by animals. It is not stated as to whose animal had trespassed into whose field. However, it was stated that this appellant Sughar Singh came to his house in a huff so as to settle scores with the deceased. It is alleged that at about 3.30 p.m. on 25.08.1980 when the deceased Hem Singh was going towards his house from his cattle shade, this appellant Sughar Singh was sitting with his father, namely, Nishan Singh and no sooner had he seen the deceased coming, he ran inside his house to fetch the licenced gun of his father. Nishan Singh, the father of the appellant-Sughar Singh, is said to have remonstrated the present appellant that the deceased was to be shot dead and, as per allegation, this appellant is said to have fired a shot which hit the deceased Hem Singh and he fell down there at the place of occurrence. 4.The informant stated that the occurrence had been witnessed by his brother Dunger Singh, that's, the father of the deceased (not examined), P.W.-5 Narayan, P.W.-4 Natthu and his other co-villagers. The informant stated in his written report that he had left the injured Hem Singh at the place of occurrence and had come rushing to the police station with the written report for lodging a case. The informant stated in his written report that he had left the injured Hem Singh at the place of occurrence and had come rushing to the police station with the written report for lodging a case. 5.It appears from the evidence of P.W.-6, Head Constable Devi Charan, posted at village Amapur, that on receipt of the written report from P.W.-3 Gaindalal, the formal F.I.R. of Case Crime No.108 was drawn up and thereafter he created the carbon copies of the same by the carbon process and also made entry in respect of the drawal of the F.IR. in the general diary entry no. 80 at 17 hours on 25.08.1980. 6.The case was initially drawn up under Section 307 I.P.C. but after receiving the information regarding the death of Hem Singh, Section 302 I.P.C. was inserted in the F.I.R. on 04.09.1980 and a relevant entry in that regard was also made in the General Diary Entry No. 29 on 04.09.1980. 7.After the case had been instituted, P.W.-9 Vijay Kumar Chauhan, who was the officer incharge of police station, Amapur took up the investigation and set out for the place of occurrence with some police personnel on 25.08.1980. On reaching the place of occurrence, he recorded the statement of injured Hem Singh who was lying in the Gali just in front of the house of the present appellant-Sughar Singh. He, thereafter, forwarded the injured-Hem Singh to hospital with constable Girish Chandra and recorded the statement of the informant and inspected the place of occurrence as shown to him by P.W.-3. He prepared the site plan also. But, what we find is that the site plan was not produced by him before the court below and an inspection note was presented instead, by him which was marked Ext.Ka.-14 in the case. 8.P.W.-9, thereafter, searched for the accused persons and found during the search of their house, the two there and arrested them. While affecting the arrest of the accused persons, P.W.-9 found the shirt put on by appellant-Sughar Singh stained with blood and his father deceased appellant- Nishan Singh was bearing an injury in his hand which had been bandaged with a cloth. P.W.-9 took both the shirt and the cloth, which was used as a bandage by Nishan Singh, in his possession by preparing the seizer memo Ext.Ka.-8. P.W.-9 took both the shirt and the cloth, which was used as a bandage by Nishan Singh, in his possession by preparing the seizer memo Ext.Ka.-8. He, thereafter, seized the blood stained earth from the place of occurrence by preparing seizer memo Ext.Ka.-9 and also found an empty of a cartridge there and prepared another seizer memo after seizing the empty of the cartridge. The seizer memo in respect of the empty of cartridge has been marked Ext.Ka.-10. He, thereafter, recorded the statements of P.W.-3 Gaindalal, Ram Prasad, Premraj, Umbar Singh, Naubat Ram, Gajju Singh (all not examined) and closed the investigation on 25.08.1980. P.W.-9 opened the investigation again on 26.08.1980 and he recorded the statements of Head Constable P.W.-6 Devi Charan and also copied the injury report in the case diary. 9.On 04.09.1980, P.W.-9 recorded the statements of Dungar Singh, Narayan (P.W.-5), Nathu Ram (P.W.-4) Devi Charan(P.W.-6), father of the deceased, Sohanlal and Lal Singh and on 06.09.1980 collected the post-mortem examination report Ext. Ka.-7. He received the copy of inquest report on 16.12.1980 and finally closed the investigation and submitted the charge-sheet in the case sending up the two accused persons for their trial. This is how the trial proceeded and ended in the impugned judgement of conviction and order of sentence. 10.It appears from the evidence of P.W.-6 itself that after being arrested by P.W.-9, both the accused persons, namely, Sughar Singh and Nishan Singh (deceased) were brought to the police station by S.I. R.P. Yadav on 25.08.1980 and as soon as Nishan Singh had been put into the lock up, he gave his oral statement and on the basis of that oral statement a non-cognizable report No. 93 against deceased-Hem Singh and others was drawn up. The register of non-cognizable cases was produced by P.W.-6 during his cross-examined and that has been marked Ext.Kha.-2. P.W.-6 further stated that the entries in respect of institution of non-cognizable report, lodging of the two accused persons in Thana lock up and bringing of the two accused persons were all entered in the general diary no. 26 at 10.30 p.m. on 25.08.1980. P.W.-6 further admitted in paragraph 4 of his evidence that the injury report of Nishan Singh was received from the doctor on 05.09.1980 and thereafter, the non-cognizable case was converted into a cognizable F.I.R. under Section 324 I.P.C. and the entries in the above behalf were marked Ext. 26 at 10.30 p.m. on 25.08.1980. P.W.-6 further admitted in paragraph 4 of his evidence that the injury report of Nishan Singh was received from the doctor on 05.09.1980 and thereafter, the non-cognizable case was converted into a cognizable F.I.R. under Section 324 I.P.C. and the entries in the above behalf were marked Ext. Kha-4. 11.The above evidence of P.W.-6 itself indicates as to what could be the defence of the appellant. It was clearly suggested as may appear from the evidence of P.W.-3 in paragraph-15 that Nishan Singh, the father of the present appellant-Sughar Singh, was allegedly beaten up by Hem Singh and his three brothers at the 'chabutra' of his house and during that melee, appellant Sughar Singh brought out his gun and during a scuffle between him and the deceased-Hem Singh, the trigger was accidently pulled and the shot went off, injuring the deceased. The other suggestion by way of defence version was given to P.W.-4 in paragraph 7 which was also the same story as was suggested to by P.W.-3 in paragraph 15 that deceased-Hem Singh and his brothers trespassed over the house of Nishan Singh and started beating him up and there was some scuffle between them and the shot went off, which hit Hem Singh and injured him. Likewise, P.W.-5 Narayan was also suggested, in paragraph 10, the same fact that the prosecution party, that's, the deceased Hem Singh and his three brothers, namely, Dori, Devkaran and Kunwar Pal trespassed over the darwaja of Nishan Singh and assaulted him with ballam and lathi, during which, this appellant came with his gun and scuffle having ensued between him and Hem Sing, the shot went off hitting the deceased. 12. Thus, what appears from the evidence and defence suggestion is that it is not denied that Hem Singh had received injury in the course of the same transaction and on the day of occurrence. What is disputed, is that the prosecution says that it was an intentional act indulged by appellant-Sughar Singh of picking up the gun and firing the shot in order to settling some scores with the deceased whereas the defence pleaded that it might be that this appellant-Sughar Singh seeing his father being assaulted by Hem Singh and his three brothers, picked up the gun and incidentally, it went off which hit Hem Singh. 13.While we were hearing this appeal the defence was further elaborated by Sri P. N. Mishra, learned Senior Advocate by injecting into the dispute, the defence of acting in exercise of the right of private defence of person, and in that connection it was contended that a boy of 19 years, that the present appellant was on the day of occurrence might have acted on account of apprehending death or grievous hurt likely to be caused to his father Nishan Singh when he was being assaulted and finding no way out, might have picked up the gun and would have fired the shot so as to save his father. It was, as such, contended that the facts of the case do not constitute an offence and the appellant deserved to be acquitted. This was the solitary argument which was the focal point of the submissions of Sri Mishra, which was seriously disputed by Sri A. N. Mulla by submitting that the injuries which were found by D.W.-2 Dr. Kripal Singh, who had examined Nishan Singh at the request of the police, were all simple and could never had given an apprehension of either death or grievous hurt being caused to Nishan Sing and, as such, should never be considered to justify the act of man slaughter in the garb of exercise of right of private defence. 14.Finding that the dispute had narrowed down to the extent we have just noticed, as to whether it was an intentional act of man slaughter by use of a lethal weapon, like, a gun or could it be an act which was done in exercise of right of private defence of person as per the provisions of Sections 99, 100 and 102 of the I.P.C. so that no offence could be said to be made out. But, still we were taken through the evidence of the three eye witnesses, namely, P.Ws. 3, 4 and 5 who stated that as soon as the deceased Hem Singh was passing through the lane, passing by the side of the 'chabutra', which was in front of the house of a 'baithaka' or 'darwaja', as the case may be, of the accused persons, this appellant Sughar Singh fired the shot as a result of which Hem Singh fell injured in the lane. 15.The defence was challenging the very presence of the three witnesses. 15.The defence was challenging the very presence of the three witnesses. P.W.-3 was cross-examined and suggested that he had never mentioned in his written report anything about his presence on or around the place of occurrence. P.W.-3 had admitted that, in fact, he had not mentioned the fact that he was present anywhere around the scene of occurrence as may appear from his evidence in paragraph 8. He admitted that the written report did not bear any statement that he was present at the scene of occurrence. But, he stated that it might be a fact which was missing on account of the momentary lapse of his memory due to the incident. However, the fact stated by in examination-in-chief of P.W.-3, regarding his presence at the scene of occurrence was so important, in our opinion, that it could have hardly been missed out by the informant. P.W.-3 was narrating that he was following his nephew-Hem Singh, who was coming from his cattle shade and when the deceased had reached in front of the house of two appellants, Nathu Ram (P.W.-4) and Narain (P.W.-5) also came there and this appellant-Sughar Singh fired the shot which hit the deceased. If this was the fact that P.W.-3 was following his nephew or was coming just behind him from the same place as may appear from his cross-examination in paragraph-9, then one could have ordinarily expected P.W.-3 to have mentioned that he was also coming from the same place, if not with his nephew a bit behind him. This, in our opinion, was a fact which ought to have mentioned in the written report. Likewise, P.W.-4 stated that he was at a tube-well and from there he was seeing the occurrence. This statement admittedly was not given by him to the police and this statement again was contradicted by the evidence of P.W.3, the informant who stated that both P.Ws. 4 and 5 also came at the place of occurrence when he was coming behind his nephew. P.W.-3 stated about the presence of P.Ws. 4 and 5 at the place of occurrence in the very forth line of his examination-in-chief. 4 and 5 also came at the place of occurrence when he was coming behind his nephew. P.W.-3 stated about the presence of P.Ws. 4 and 5 at the place of occurrence in the very forth line of his examination-in-chief. These two contradictory statements regarding the presence of P.W.-3 or even of P.W.-5 who had also not given any statement regarding his presence at the place of occurrence, like, that he was seeing it from his 'darwaja'-makes it very difficult for us to accept their evidence. However, we have still gone to consider their evidence in the light of the defence of the accused persons and in the light of other material facts which were put to the witnesses during their cross-examination. 16.One of the most material aspects of the evidence of prosecution witnesses was that all three witnesses were admitting in their evidence that the two accused persons were closeted inside their house and as soon as P.W.-9, the Investigating Officer came he brought them out of their house. This fact is in complete in consonance with the evidence of P.W.-9 who stated that after he had dispatched the injured Hem Singh to hospital and had recorded the statement of the informant and had further inspected the place of occurrence, he searched the house of the accused persons and arrested them from inside it. 17.Naturally the two accused persons were brought by P.W.-9 out of their house, as per prosecution, after being arrested as appears the case from the evidence of the three witnesses also. P.W.-9 stated that the deceased appellant Nishan Singh was bearing some injuries and one particular injury was still bleeding as appears from paragraph 15 of P.W.-9. 18. However, when we read the evidence of P.Ws. 3, 4 and 5, we find that specific questions were put to them as to whether they had found any injury on the person of accused Nishan Singh and they were very categorical in denying that they had not seen any injury on his person. Here is not the question of explaining or not explaining the injuries found on the persons of the accused, here we consider the evidence of the witnesses only with a view to judging their credibility as to whether they were forthright and honest before the court to depose to the true facts as regards the description of the occurrence and its manner. We find that the very denial by the witnesses about the presence of any injury which is admitted by the prosecution evidence itself as appear from the evidence of P.W.-6 Head Constable Devi Charan and P.W.-9 S.I.Vijay Kumar Chauhan, the investigating officer-they could not be said to be making a true discloser of the facts of the case and rather appear making false statement on one of the most material parts of the incident. 19.In the above view of the matter, we find ourselves persuaded to consider the defence suggestion that there could have been an occurrence in manner otherwise than was alleged by the prosecution. P.W.-6 says that appellant-Nishan Singh (the deceased) was bearing injuries and he was sent for medical examination and a report was received by the police on 05.09.1980 and a non-cognizable report was converted into a cognizable case. 20.P.W.-9 also said that when he had arrested appellant-Nishan Singh and this appellant Sughar Singh, he had found injury on the person of Nishan Singh. Undisputedly, the deceased appellant-Nishan Singh was examined by D.W.-2 Dr. Kripal Singh who was posted in the Primary Health Centre, Amapur on 25.08.1980 and he found the following injuries on the person of accused Nishan Singh:- 1. One stab wound 1.5cm. in diameter round in shape and 2.5cm. in depth, present at the posterio laterial side of upper arm on its left side. It was still bleeding and there was marked swelling around the wound. The wound was 6 c.m. above the left elbow joint 2. Contusion measuring 2cm. X 5cm., redish blue in colour, situated at upper part of the deltoid left upper arm. 3.Contusion measuring 2cm. X 6cm. redish blue in colour present at the lateral part of upper middle left arm. 4. Numerous contusions together on the whole back of upper left arm up to upper part of exila redish blue in colour with contused swelling over left arm to left elbow joint. 5. Swelling without contusion present on the left hand at left third, forth and fifth fingers. 6. Contusion measuring 6cm x 10cm. present over the left side of chest which extended from 11th rib up to the upper part of hip reason. The wound was redish blue in colour and it was 8cm away from the medial line. 21.D.W.-2 opined that the above injuries were simple in nature and injury no. 6. Contusion measuring 6cm x 10cm. present over the left side of chest which extended from 11th rib up to the upper part of hip reason. The wound was redish blue in colour and it was 8cm away from the medial line. 21.D.W.-2 opined that the above injuries were simple in nature and injury no. 1 was caused by a pointed object, like, a 'bhala' while injuries no. 2, 3, 4, 5 and 6 were caused by a blunt object and they might have been caused on the day of occurrence, that's, 25.08.1980 within 24 hours of the examination of the injured. 22.Thus, what we find from the description of the injuries is that incessantly innumerable blows with 'lathi' appeares to be given on the left side of the upper part of the body of Nishan Singh and at the same time a sharp pointed weapon was also pierced in the deltoid muscle of his left arm. The propensity of the assault could be gathered from injuries no. 4, 5 and 6, which indicate not only the merciless beating that was administered to accused-Nishan Singh, but his attempt also to ward off the blow as he was hit at the left of his three fingers while raising his hand in self defence. He had bled from his injury and this evidence is evidently admitted from the very prosecution documents Ext.Ka.-8 which was the seizer memo prepared by P.W.-9 after arresting two accused persons. The seizer was of the shirt worn by appellant Sughar Singh which was blood stained as also the bandage which had been put on by Nishan Singh on his arm on his bleeding injuries. There is no dispute or denial that Nishan Singh had been assaulted at his 'chabutra'. It was only denied that Hem Singh or his three brother had indulged in beating Nishan Singh. Evidence of P.W.-9 indicates that while seizing the blood stained shirt and the cloth, he also seized blood stained earth from the same place by preparing Ext.Ka.-9. It is not clearly indicated that the seizer of the blood was from the place where the deceased was lying. In fact, there is no evidence coming from the prosecution as to what, exactly, was the place where Hem Singh was found lying by P.W.-9. It is not clearly indicated that the seizer of the blood was from the place where the deceased was lying. In fact, there is no evidence coming from the prosecution as to what, exactly, was the place where Hem Singh was found lying by P.W.-9. The injuries on Nishan Singh clearly raised a probability which could be definite in nature that he had been assaulted on the same day and at around the same time by some one. Now, who were those persons and who assaulted Nishan Singh. The defence had suggested that it was deceased Hem Singh and his three brothers, namely, Dori, Devkaran and Kunwar Pal. During the cross examination by defence, P.W.-3 the informant of the case, was put certain questions regarding the topography of the house of the appellant and during that course in paragraph-7 of his deposition he had admitted that the house of D.W.-1 Mahendra Singh was situated by the side of the house of appellants Nishan Singh and Sughar Singh and he further admitted that D.W.-1 Mahendra Singh was very much present at the time of occurrence at the place of occurrence. 23.Sri A. N. Mulla, learned A.G.A. appearing for the State was drawing our attention towards the part of cross-examination of D.W.-1 in which he had admitted that he was a convict of a murder charge with accused Nishan Singh and further that certain previous litigations had ensued between the father of Hem Singha and D.W.-1, it was submitted that he was an inimical witness and, as such, he could be motivated to make false statement in an attempt to salvage his friends of long standing from being convicted of the charges which were fraimed against them. But, we do not find from the records, especially, that of the cross-examination of D.W.-1 as to what was the period when the earlier litigation had cropped up and when they had terminated in one way or the other. There is general suggestion but the facts remains that the presence of D.W.-1 at the place of occurrence is undisputed. D.W.-1 might have been inimical witness but his evidence after being approached with care and caution, appears inspiring our confidence specially when the cross-examination of D.W.-1 on the manner of assault of Nishan Singh was fully fitting with the suggestion given to different prosecution witnesses. D.W.-1 might have been inimical witness but his evidence after being approached with care and caution, appears inspiring our confidence specially when the cross-examination of D.W.-1 on the manner of assault of Nishan Singh was fully fitting with the suggestion given to different prosecution witnesses. D.W.-1 had stated in cross-examination in paragraph-6 that deceased Hem Singh and others surrounded Nishan Singh at his darwaja and started giving blows with lathi and bhala and he was beaten up while he was sitting there. He had stated that he did not pay his attention as to whether blood had fallen there or not. There is a suggestion to D.W.-1 that on account of previous enmity with the prosecution and friendship with the accused he was deposing falsely. But, there is circumstance, which we have noticed on account of the injuries and denial of the same by the witnesses as regards their presence and accused Nishan Singh. We find every probability that it could have been non-else than the deceased and his companion who could have dealt blows with lathi or a sharp pointed weapon, may be, a bhala to Nishan Singh as a result of which he was seriously injured. 24.The right of private defence of person arises out of the provisions of the Indian Penal Code under the chapter "General Exceptions" and there are three relevant provisions which are attracted in the present set of facts. 25.Section 99 of the I.P.C. lays down in negative term as to when the right could not be available to a person to be exercised when it comes to defending his own person or properties or the person or property of other person also. 26.Section 100 of the Penal Code lays down the extent to which that right of private defence could be extending as regard causing death of a person and Section 102 of the Penal Code lays down the limits as regards the commencement and continuance of such a right as regards the defence of the body of a person. 27.As per Section 99 of the I.P.C. the right to exercise the right of private defence of person arises only when the act reasonably causes the apprehension of death or of grievous hurt in the mind of the person who claims exercising that right. 27.As per Section 99 of the I.P.C. the right to exercise the right of private defence of person arises only when the act reasonably causes the apprehension of death or of grievous hurt in the mind of the person who claims exercising that right. The same section lays down the extent to which the right may be exercised and it is provided that the right of private defence in no case should exceed to the inflicting of harm more than was necessary for the purposes of exercising the right of private defence. So far as the right of private defence and its extent is concerned, Section 100 of the Penal Code lays down the cases under which such right could be available to a person to be exercised and it may be commencing as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed as may appear from Section 102 of the Penal Code. Thus no right of private defence could be claimed if there is no act giving rise to reasonable apprehension in the mind of the person who claimed the protection of the exceptional provisions of Sections 99, 100 and 102 of the Act and it could not be claimed infinitely, except under the extent of exercising the right as per provisions of 102 of the Penal Code. 28.For the purposes of exercising the right of private defence, it may not be necessary that there could be always a case of injury so as to inferring that there was a reasonable apprehension in the mind of the person who was exercising that particular right. The statute speaks of mere act and not of the consequences of such act and as such, if by mere act which is committed or attempted to be committed by any one against whom, the right is exercised gives rise to a reasonable apprehension of the degree as is spoken of by Sections, 99 and 100 of the Penal Code then the commencement of such a right is there and as soon as that apprehension disappears or the act which causes the apprehension is repelled the extent of that right comes to an end. This is in sum and substance, the gist of the provisions regarding the principles of exercising the right of private defence of body of a person. There might never had been even a simple scratch caused to a person, but mere threat which could have given reasonable apprehension in the mind of the person or any one who exercises such a right, it may be treated sufficient to clothe such a person with the right of exercising that right. 29.This may also be noted that when a person is faced with real danger to his life or he had been put to peril due to any particular act of another person, he is never supposed to knock at the doors of law enforcement agency for protection. It is for such circumstances that this right has been created by the legislature and it can never be weighed in golden scales as to what blow in exercise of right of private defence could be said to be appropriate or what blow could be said to be excessive. It is always the facts and circumstances of the case which has to be considered to consider the appropriate or excessive exercise of a right of private defence so as to applying the provisions noticed by us above. 30.One other aspect of law of exercising the right of private defence of person or property is that an accused is not required to specifically plead exercise of such a right in his own defence or in defence of the other, the Court may under appropriate facts and circumstances of the case deduce such exercise of the right. For this, the accused may point out to the Court facts and circumstances appearing from the evidence of the prosecution witnesses or may adduce his own evidence and what the Court has to do is to read the effect of the evidence or probabilities arising from the prosecution and defence evidence on the proof of the charges simultaneously. 31.As may appear from the composite reading of Sections 99, 100 and 102 of the Penal Code, mere apprehension in the mind of the person who claimed exercising the right of private defence that his own life or that of the other, might be in peril could be sufficient to clothe with the right of private defence of person. 31.As may appear from the composite reading of Sections 99, 100 and 102 of the Penal Code, mere apprehension in the mind of the person who claimed exercising the right of private defence that his own life or that of the other, might be in peril could be sufficient to clothe with the right of private defence of person. Here from the circumstances we have noted, we find that Nishan singh was assaulted mercilessly. It is undisputed that appellant Sughar Singh was very much present there by the side of his father. The learned trial Judge has noted in the order of sentence passed by him that the appellant was 19 years of age, which goes undisputed. He was a young boy who had just appeared at one of the parts of his bachelor of arts examination. He was seeing his father being beaten up by persons who had trespassed over his house. The beating was so serious as has been pointed out by us with reference to the injuries of Nishan Singh in the earlier part of the judgement. A son so adolescent in age could have been frightened and could have real reasonable apprehension of suspecting that if he did not intervene the life of his father, may be lost on account of beating administered by his assailants. As such, it would have been within the fitness of his apprehension and perception both that he could have picked up the gun and had fired the shot. 32.We justify the act of appellant-Sughar Singh as an appropriate exercise of the right of private defence of the person of his father and in that view we hold that appellant-Sughar Singh could not be said to have committed any offence. 33.In the result, the appeal is allowed. The appellant-Sughar Singh is acquitted of the charges, he had been convicted of. The appellant is on bail. He is discharged from the liability of his bonds. _____________