Judgment : (Delivered by Hon'ble Naheed Ara Moonis, J.) The instant criminal appeal is arising out of judgment and order dated 14.4.1983 passed by the Sessions Judge, Bulandshahr in S.T. No.413 of 1981 vide Case Crime No.207 of 1981, under Section 302 IPC, P.S. Siana, District Bulandshahr whereby the appellant was convicted and sentenced for life imprisonment. The genesis of the prosecution case is arising out of the First Information Report lodged by Shuaib Alam (P.W-1), the son of the deceased Mohd. Shafi on 14.9.1981 at 6.20 P.M. It is stated therein that his father has settled two shops and a Kotha in Rs.30,000/- but his uncle Akhlakh Ahmad, the present appellant was bearing grudge as he wanted to take the shops and Kotha. On the day of occurrence i.e. 14.9.1981 when the complainant and his elder brother Aftab Alam (P.W-2) were sitting along with his father Mohd. Shafi in front of the room on the first floor his uncle Akhlakh Ahmad, the present appellant arrived there at about 5 P.M. used abusive language and demanded Rs.10,000/- from his father. The complainant's father asked him that firstly he should get his name mutated and thereafter he should talk about the selling of the property. At this the appellant was infuriated and asked Mohd. Shafi that now he will tell as to how he will get his name mutated and started assaulting him with knife. The complainant screamed and on his cry Abdul Rahman and Babu, the neighbours arrived there and the appellant ran away along with knife after getting down the stairs. The complainant's father died on the spot. The deceased was taken down on the cot. Thereafter the complainant went to lodge the FIR. The report was written by Clerk Ram Manohar Singh at about 6.20 P.M. as case crime no.207 of 1981, under Section 302 IPC. On the basis whereof he prepared the chik report which was exhibited as Ka-1 and Ka-4 respectively and the same was entered in the general diary (Ext. Ka-5). The criminal law was set into motion and the investigation was handed over to Hukum Singh (P.W-5) who had recorded the statements under Section 161 Cr.P.C. of the complainant Shuaib Alam. The investigating officer and Clerk Ram Manohar Singh proceeded to the place of occurrence and taken the custody of the dead body of the deceased Mohd. Shafi and prepared his inquest report (Ext. The investigating officer and Clerk Ram Manohar Singh proceeded to the place of occurrence and taken the custody of the dead body of the deceased Mohd. Shafi and prepared his inquest report (Ext. Ka-6), sketch of the dead body (Ext. Ka-7), challan (Ext. Ka-8) and letters for conducting postmortem which were exhibited and proved by him as Ext. Ka-9 and Ka-10 respectively. The dead body was carried for postmortem through Constable Dhir Singh (P.W-4) and Constable Ranvir Singh along with relevant papers. The investigating officer further prepared two memo regarding recovery of blood stain which was found on the cement floor and kept in the sealed cover exhibited as Ka-11 & Ka- 12. He had also prepared the site plan with the help of Aftab Alam, another son of the deceased and the brother of the complainant and recorded the statements under Section 161 Cr.P.C. of various other persons. He also conducted the investigation on 16.9.1981 and thereafter the case was handed over to Station House Officer R.P. Bakshi who after collecting the clinching materials submitted the charge sheet against the appellant which was marked as Ext. Ka-13. The autopsy of the deceased Mohd. Shafi was conducted by Dr. V.C. Goel (P.W-3) on 15.9.1981 at 4 P.M. and following ante-mortem injuries were found: 1. Incised wound ½" x ½" x muscle deep on right side abdomen 2" above right iliac crest margins clean cut; 2. Incised wound ½ x ½ x cavity deep on the left side front of chest 3" below left nipple; 3. Incised wound ½ x ½ cavity deep on the left side front of chest 4" below injury no.2; 4. Linear abrasion 2" long 4" below left ear; 5. Abrasion 1" long in back of right side 2" above right iliac crest; 6. Abrasion 1" long on the left side back 2" above left iliac crest. The Doctor opined that incised wound sustained by the deceased could have been caused by a knife and abrasions by friction. On account of the aforesaid injuries thoracic cavity contained about 2½ lb liquid blood and the heart was cut at one point. He further opined that duration of death was about one day due to shock and haemorrhage as a result of ante-mortem injuries at about 5.30 P.M. on 14.9.1981. On account of the aforesaid injuries thoracic cavity contained about 2½ lb liquid blood and the heart was cut at one point. He further opined that duration of death was about one day due to shock and haemorrhage as a result of ante-mortem injuries at about 5.30 P.M. on 14.9.1981. The case was committed to the court of session and the charge was framed against the appellant by the Sessions Judge, Bulandshahr on 11.1.1982 under Section 302 IPC . The charge was read over and explained to the accused appellant who pleaded not guilty and claimed his trial. Only two witnesses of fact have been examined by the prosecution to substantiate the charges against the appellant beside three formal witnesses. P.W-1 Shuaib Alam and P.W-2 Aftab Alam are the sons of the deceased Mohd. Shafi, who are also the nephew of the appellant Akhlakh Ahmad. Dr. V.C. Goel who had conducted the postmortem, was examined as P.W-3, Constable Dhir Singh who carried the dead body of the deceased for postmortem, was examined as P.W-4 and Hukum Singh, the investigating officer, was examined as P.W-5. One witness Dr. V. Kumar was examined as defence witness who had examined the injuries of the appellant on 15.9.1981 at 3.45 P.M. and proved his injury report and the prescription which were exhibited as Kha-1 and Kha-2. Another witness Abdul Rahman was examined on behalf of the defence as D.W-2 who proved the plea of self defence who claimed to be a witness of the occurrence. P.W-1 Shuaib Alam aged about 14 years, who is the son of the deceased and was present when the incident took place, had reiterated the version as mentioned in the FIR. He has stated that his father Mohd. Shafi, was three brothers. Two other brothers of Mohd. Shafi are present appellant and one Iqbal Ahmad @ Kalua who had no issue at the time of incident. His father Mohd. Shafi was agreed to purchase two shops and one Kotha in Rs.30,000/- from his brother Iqbal Ahmad @ Kalua. This was the bone of contention and the appellant was bearing grudge against his own brother. As he demanded Rs.10,000/- his father has merely asked first to get his name entered. This was not relished by the appellant and started assaulting him with knife. This was the bone of contention and the appellant was bearing grudge against his own brother. As he demanded Rs.10,000/- his father has merely asked first to get his name entered. This was not relished by the appellant and started assaulting him with knife. On his hue and cry Babu and Abdul Rahman reached there and thereafter the appellant ran away along with knife. The witnesses had seen the actual incident when the appellant was assaulting his father. In his cross-examination the complainant has admitted that his grand father Abdul Rashid was alive and the entire property was ancestral and there was no partition in writing. There was only mutual partition. He had totally denied the suggestion that his father was requested for partition of the house which was turned down by his grand father Abdul Rashid. He had totally denied the suggestion that his father had first assaulted the appellant with lathi and thereafter the appellant whipped out the knife and assaulted his father. He had also stated that the appellant had given blow of knife 6-7 times. He had totally denied the suggestion that the dead body of his father was taken to the clinic of Dr. Triloki Chand. He had also denied the suggestion that when the body was taken down from the stairs his mother reached there and when the dead body was taken down no blood was smeared on his shirt. P.W-2 Aftab Alam (a/a 15 years), another son of the deceased, had given the description about the manner of incident, as stated by P.W-1 Shuaib Alam. In his cross-examination nothing was elicited to belie the prosecution story. P.W-3 Dr. V.C. Goel, who conducted the postmortem of the deceased, has narrated that the injuries were caused by sharp edged weapon like knife, which were sufficient in ordinary course of nature to cause death. Some abrasions were also found on his body which were due to friction. P.W-4 Dhir Singh, Constable, who had carried the dead body of the deceased for conducting postmortem, has proved that he had brought the dead body to the mortuary in a sealed condition. This witness was not cross-examined by the defence. P.W-5 Hukum Singh, the investigating officer conducted the investigation, has narrated the same as stated in the preceding paragraphs. Nothing has been elicited in his cross-examination to disapprove his testimony. This witness was not cross-examined by the defence. P.W-5 Hukum Singh, the investigating officer conducted the investigation, has narrated the same as stated in the preceding paragraphs. Nothing has been elicited in his cross-examination to disapprove his testimony. The statement of the appellant under Section 313 Cr.P.C. was recorded in which he has stated that due to enmity he has falsely been implicated in the present case. He has further stated that he had three brothers. Mohd. Shafi, he himself (Akhlakh Ahmad) and Iqbal Ahmad @ Kalua. They were residing at Siana and they have no mutual partition. The deceased Mohd. Shafi, who was unemployed, was demanding his share in the property from his father which was refrained by him. His father Abdul Rashid has stated that till he is alive he will not give any share and on account of this there was altercation used to take place every day between his father and his brother Mohd. Shafi. On the day of occurrence Abdul Rashid who was present up stairs and at that time Mohd. Shafi, the deceased asked his father for partition of the house. On account of quarrel Abdul Rahman and Babu were already present there. The appellant also reached there and asked his brother Mohd. Shafi that why he used to quarrel every day. Thereafter the deceased attacked upon him with knife causing injuries to him then he snatched the knife. The deceased took a danda which was lying there and again attacked him. The appellant who was having knife, in his defence he had given knife blows upon Mohd. Shafi and on account of blows he fell down. Thereafter the appellant had taken him to Dr. Triloki Chand where the doctor had examined and declared him dead. He then brought the dead body and kept in the Sahan and thereafter he went Ghaziabad where he got himself medically examined. In order to prove the injuries of the appellant the defence has examined Dr. V. Kumar as D.W-1 who has stated that he had examined the appellant on 15.9.1981 at 3.45 P.M. while he was posted as medical officer at A.M.G. Hospital, Ghaziabad. The injuries so examined by the Dr. V. Kumar proved by him as Ext. Kha-1. The injuries which were found on the person of appellant Akhlakh Ahmad are as follows: 1. V. Kumar as D.W-1 who has stated that he had examined the appellant on 15.9.1981 at 3.45 P.M. while he was posted as medical officer at A.M.G. Hospital, Ghaziabad. The injuries so examined by the Dr. V. Kumar proved by him as Ext. Kha-1. The injuries which were found on the person of appellant Akhlakh Ahmad are as follows: 1. Redish blue contusion 5cm x 2cm on left side of neck 7cm below body of mandible; 2. Lacerated wound 1cm x .3cm x skin deep on back and base of right thumb; 3. Soft scab abrasion 1cm x .5cm on front and terminal phalynx of left middle finger; 4. Soft scab linear abrasion .1cm on terminal phalynx left middle finger 1cm below injury no.3; 5. Soft scab abrasion 3cm x 1cm on front of right leg middle part; 6. Bluesh-redish contusion 3.5cm x 1.5cm on inner side of right upper arm; 7. Contusion 2cm x 1cm on front part of chest just below right nipple. The doctor had opined that except injury no.4 all other injuries were simple in nature and caused by some blunt object one day before. He further stated that injury no.4 was caused by some pointed weapon like knife. In his cross-examination he had admitted that the injuries were noted in the hospital register but could not be produced though he had admitted that prescription (Ext. Kha-2) did not contain any seal of the hospital. He has stated that it was not possible for the appellant to inflict injury nos.1,2 & 4 by self though injury nos.3,5 & 6 could have been self suffered. He has totally denied the suggestion that he did not medically examined the appellant Akhlakh Ahmad. The doctor has further stated about that there are government hospitals both, at Hapur and Garhmukteshwar. D.W-2 Abdul Rahman who was also named in the First Information Report and was one of the witness of the occurrence has appeared as defence witness and has stated that on hearing the alarm of Abdul Rashid he went along with Babu and found that the deceased was abusing his father Abdul Rashid and thereafter accused appellant came there and he asked the deceased why he is insulting his father. Mohd. Shafi, the deceased asked him that he is being a hindrance in respect of partition of the property then Mohd. Mohd. Shafi, the deceased asked him that he is being a hindrance in respect of partition of the property then Mohd. Shafi picked up a knife and about to assault the appellant but the appellant snatched it whereupon Mohd. Shafi took a danda. Firstly, Mohd. Shafi had assaulted the appellant with knife but he could not suffer any injury as he had snatched the knife from Mohd. Shafi. He further stated that the appellant had received knife injury over his hand and when it was snatched away Mohd. Shafi assaulted him with danda thereafter the appellant had inflicted 4-5 injuries of knife. He further stated that the appellant Akhlakh Ahmad had not snatched danda from Mohd. Shafi, the deceased during the course of incident. He remained there and he had seen Mohd. Shafi fell down after the injuries. On some material particulars he had showed his ignorance and denied the suggestion altogether that he has been colluded with the accused appellant and giving a false statement. On the basis of the aforesaid evidence learned trial court arrived at the conclusion that prosecution has been able to establish its case beyond all reasonable doubt. Hence the appellant is guilty of the offence committing murder of his own brother Mohd. Shafi punishable under Section 302 IPC and convicted him for life imprisonment, which has been assailed by the learned counsel for the appellant. We have heard Sri G. Swaroop Chaturvedi, learned Senior Advocate assisted by S/Sri Ajat Shatru Pandey and A.K. Shukla, learned counsel for the appellant as well as S/Sri Rajeev Gupta, Rahul Asthana, C.P. Singh and Nilesh Kumar, learned counsel for the State and also perused the material placed on record. The learned Senior Counsel has submitted that property dispute between the two brothers is the result of the incident which can be said to be a case of sudden quarrel on the spur of moment without there being any intention of causing death and in a right of private defence the deceased suffered injuries which were proved to be fatal. The learned Senior Counsel has submitted that property dispute between the two brothers is the result of the incident which can be said to be a case of sudden quarrel on the spur of moment without there being any intention of causing death and in a right of private defence the deceased suffered injuries which were proved to be fatal. It is submitted that there is great exaggeration in respect of manner of assault as the two witnesses have stated about that assault took place for 7 minutes and if the prosecution case is taken to be true the medical report does not corroborate the prosecution version as the deceased had suffered only three incised wounds and the injuries could have been much more than that. The appellant in fact during the course of altercation in respect of dispute over partition of property was, initially assaulted by the deceased with knife and merely because his injuries were examined after one day of the alleged incident, the theory of self defence cannot be discarded as he snatched the knife from the deceased and then assaulted him. D.W-2 Abdul Rahman, who is an independent witness, has fully supported the defence case with regard to the assault committed by the appellant was in his defence and as such the statement made by the two witnesses who are the sons of the deceased, have been exaggerated accusing him responsible in the commission of the murder of his own brother. The appellant had the right of private defence of his person as the deceased had whipped out a knife to assault him which was snatched by the appellant and during the course of which the appellant himself had also suffered injuries, which is evident from his medical report proved by Dr. V. Kumar (D.W-1). On account of grappling between the two brothers injuries suffered by the deceased proved fatal and there was no intention of the appellant to kill him as such at the most the offence would fall under Exception 4 of Section 300 IPC. Hence the convition at the most would not travel beyond the scope of Section 304 part II IPC. The prosecution had miserably failed to explain the injuries sustained by the appellant. The non-explanation of the injuries is relevant factor which should have taken note of for evaluation the prosecution evidence. Hence the convition at the most would not travel beyond the scope of Section 304 part II IPC. The prosecution had miserably failed to explain the injuries sustained by the appellant. The non-explanation of the injuries is relevant factor which should have taken note of for evaluation the prosecution evidence. Learned counsel for the appellant has laid emphasis to Section 100 IPC relating to right of private defence of body which is delineated here as under; 100. When the right of private defence of the body extends to causing death.--The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-- (First) Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; (Secondly) Such an assault as may reasonably cause the apprehen­sion that grievous hurt will otherwise be the consequence of such assault; (Thirdly) An assault with the intention of committing rape; (Fourthly) An assault with the intention of gratifying unnatural lust; (Fifthly) An assault with the intention of kidnapping or abduct­ing; (Sixthly) An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. Learned counsel for the appellant has further relied upon Section 351 IPC in support of his contention which defines assault. 351. Assault.--Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or prepa­ration will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation.--Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault. Explanation.--Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault. Learned counsel urged that the injuries sustained by the appellant would positively show that the appellant was not the aggressor and consequently, the injuries sustained by the deceased was due to a sudden fight between the parties and t he appellant in order to ward of had to attack in his self defence. Concludingly, it has been summarized by the learned counsel for the appellant that instant appeal deserves to be allowed and the conviction and sentence of the appellant Akhlakh Ahmad under Section 302 IPC be set aside and he may be acquitted of the charge as there was no motive, intention or knowledge on his part as to his act which led to the death of his own brother and at the most the offence would fall under Exception 4 of Section 300 IPC. Per contra learned A.G.A. has vehemently refuted the submissions of the learned counsel for the appellant and contended that date, time and place of incident is admitted by the defence but even if plea of self deference is accepted the appellant has exceeded his right of self defence. The conduct of the appellant cannot be ignored when there was only a conversation going on between the accused and the deceased. There is no mention that the deceased had whipped out a knife first which was snatched away by the appellant. There was no apprehension of death to the appellant. If there was any intention of causing his death the appellant could have also received more serious injuries and he would have examined his injuries immediately soon after the incident. But his injuries were examined on 15.9.1981 at 3.45 P.M. in Ghaziabad Hospital when he could have examined himself at Bulandshahr or government hospital at Hapur or Garhmukteshwar which were near to the place of incident. This clearly shows that the injuries were self inflicted or manufactured to built a case of self defence. It is an admitted fact that the accused resides in Ghaziabad where his in-laws also reside and he got his injuries examined by Dr. V. Kumar (D.W-1). This clearly shows that the injuries were self inflicted or manufactured to built a case of self defence. It is an admitted fact that the accused resides in Ghaziabad where his in-laws also reside and he got his injuries examined by Dr. V. Kumar (D.W-1). Neither the written prescription nor the register of the injuries which were said to have noted by the Dr. V. Kumar ever produced before the court. It is admitted by D.W-1 that the prescription did not contain any seal of the hospital as such there was no material to show that it was dully issued from the hospital itself. He has next contended that the learned trial judge has rightly arrived at the conclusion that such medical examination of the appellant cannot be given any due weight. The injuries of the appellant which were superficial in nature, could have been self suffered in comparison to the injuries of the deceased hence the benefit of plea of private defence cannot be extended to the appellant. The intention to commit murder is clearly discernible from the fact that the appellant has inflicted successively three incised wounds on the vital part of his own brother which resulted into his death, therefore, the appellant is not entitled to get any benefit of Exception 2 of Section 300 I.P.C. as there are number of incised injuries found on the body of the deceased. The Exception 2 of Section 300 IPC runs as follow. Exception 2 - 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. The entire circumstances of the case corroborate the evidence showing the complicity of the appellant in the offence and hence offence under Section 302 IPC has rightly been proved against him. In all reasonableness if the appellant has exceeded his right of private defence the trial court has rightly convicted the appellant under Section 302 IPC for life imprisonment for committing murder of his own brother and hence the appeal merits dismissal calling no interference. In all reasonableness if the appellant has exceeded his right of private defence the trial court has rightly convicted the appellant under Section 302 IPC for life imprisonment for committing murder of his own brother and hence the appeal merits dismissal calling no interference. Before we examine the factual matrix of the case in hand it is apposite to take note of the law laid down by the Apex Court on the question as to whether case in hand falls under Section 302 or 304 Part I or Part II IPC. In Pulicherla Nagaraju @ Nagaraja Reddy V. State of Andhra Pradesh, (2006) 11 SCC 444 , the Apex Court examined the issue as to what relevant factors should be kept in consideration while deciding the question as to whether case falls under Section 302 or 304 Part-I or Part-II. The Apex Court held in para 29 as under: "29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may." We have no doubt in our mind that the appellant has committed murder of his own brother by inflicting injuries successively with knife. There is also no dispute that there was property dispute between the family members. Be that as it may." We have no doubt in our mind that the appellant has committed murder of his own brother by inflicting injuries successively with knife. There is also no dispute that there was property dispute between the family members. The testimony of the witnesses who are the sons of the deceased, were cross-examined extensively which clearly shows that on account of altercation between the deceased and the appellant the appellant had stabbed his own brother in their presence and as such there is nothing on record to create doubt about the credibility of their testimony though it is apparent that the offence was committed in a heat of passion without premeditation in a sudden fight in a cruel and unusual manner with the knowledge that it would likely to cause death but without any intention to cause death or to cause such bodily injury as it would likely to cause death. It was in that spur of moment after a quarrel that the appellant had lost his temper and he had given blows of knife on the chest of the deceased. The appellant got his injuries examined at government hospital, Ghaziabad when there were other hospitals in the close vicinity of Siana at Bulandshahr. The appellant had sustained only simple injuries, except one incised injury which is scab linear abrasion .1 c.m. on the terminal phalynx left middle finger 1 c.m. below injury no.3. Such an injury could have been self inflicted and other injuries are indicative of the fact that they were superficial. The right of private defence also does not accrue to the appellant as the defence has failed to prove any apprehension of death or grievous hurt was caused to him by the deceased and in order to protect himself the appellant had exercised force. The evidence clearly shows that the deceased was first assaulted by the appellant and the appellant could not reasonably apprehend the death or grievous heart would be caused to the deceased. D.W-2 Abdul Rahman has stated that the deceased picked up the knife to assault the appellant, the appellant snatched the knife and thereafter the deceased wielded a danda. The appellant could not reasonably apprehend that with the blow of danda any grievous hurt causing death would be caused to him. D.W-2 Abdul Rahman has stated that the deceased picked up the knife to assault the appellant, the appellant snatched the knife and thereafter the deceased wielded a danda. The appellant could not reasonably apprehend that with the blow of danda any grievous hurt causing death would be caused to him. Except injury of little finger no other injury was found to give an idea of any repeated blow and in the absence of any description of danda used by the deceased it cannot be presumed that the accused appellant was facing eminent danger to his life when it is the case of the defence that knife was snatched by the appellant. The moment it was snatched from the deceased the right of private defence came to an end when the deceased wielded with danda it was not used to effect any vital part of the body of the appellant. The force applied by the appellant according to the prosecution version on the deceased was too excessive out of proportion, therefore, the appellant does not deserve plea for right of private defence or benefit of Exception 2 of Section 300 I.P.C. It is a case of patricide. A brother has killed his own brother on an issue regarding partition of property. It is difficult to comprehend for us to accept that the case would be squarely covered under Section 100 I.P.C. which is relating to the right of defence of the body extend to causing death or murder is culpable homicide but not vis versa. Where the right of private defence is pleaded, the defence must have 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 further reasonable apprehension from the side of the deceased. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged only by showing preponderance of probabilities in favour of that plea on the basis of the material on record. Section 100 I.P.C. defines the extend of the right of private defence of body if a person has right of private defence under Section 97 I.P.C. The right extends under Section 100 I.P.C. to causing death if there is reasonable apprehension with death or grievous hurt would be consequence of the assault. Section 100 I.P.C. defines the extend of the right of private defence of body if a person has right of private defence under Section 97 I.P.C. The right extends under Section 100 I.P.C. to causing death if there is reasonable apprehension with death or grievous hurt would be consequence of the assault. The plea of self defence raised by the appellant appears to be based only on assumption. If the defence version is taken to be true then as soon as the appellant had snatched the knife from the deceased the threat has been destroyed and there can be no occasion to exercise the right of private defence. In order to find whether right of private defence is available or not the injuries received by the accused has to be taken into account. The injuries caused by the accused and the circumstances whether the accused had opportunity to recourse the public authority or other relevant factor to be considered in the present case. If the appellant had sustained injury on account of the assault by the deceased but he had not informed any police authority or has not taken any recourse then the plea of right of private defence can be negatived. Moreover, where the plea is acceptable it is essentially a finding of fact. The right of private defence is essentially a defensive right circumscribed by the statute i.e. IPC available only when the circumstances clearly justified and it cannot be allowed to be pleaded or available as a pretext for a vindictive aggressive purpose of offence. The right of private defence does not include a right to launch an offensive attack particularly when the need to defend no longer survive. Therefore, the only available course to be made is to discard the argument of plea of self defence and the same is rejected. We have examined the evidence of P.W-1 Shuaib Alam whose statement has been fully corroborated by the medical evidence brought on record that it was the appellant who inflicted injuries upon his own brother and this is the fact which is mentioned in the FIR which was lodged promptly. The medical evidence also leaves no room to doubt that on account of the injuries received on vital part, caused by the appellant, the victim died. The medical evidence also leaves no room to doubt that on account of the injuries received on vital part, caused by the appellant, the victim died. Normal discrepancies in evidence are bound to occur due to normal error of observation or error of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Such discrepancy would not corrode the credibility of the prosecution. The learned trial court has analyzed in detail as to how the case of the appellant stood on different footing and does not come within the purview of right of private defence. In the present case when we examine the evidence of the prosecution we find that the intention of causing the bodily injury coupled with the appellant's knowledge of the likelihood of such injury causing the death of the victim, the appellant should have been convicted for the offence punishable under Section 304 Part I IPC instead of Section 302 IPC. Considering the background facts and applying the principles stated above we direct that the conviction of the appellant Akhlakh Ahmad instead of Section 302 IPC would be appropriate in terms of Section 304-I IPC and custodial sentence of ten years would meet the ends of justice. Accordingly, the appeal is allowed in part. The appellant Akhlakh Ahmad is on bail. The appellant is directed to be taken into custody forthwith and shall be sent to jail to serve out the sentence of 10 years rigorous imprisonment under Sectionn 304 Part I IPC. Let a copy of this order be notified to the trial court for it's intimation and necessary compliance. Judgment be certified and be placed on record.