JUDGMENT Hon'ble Sheo Kumar Singh-I, J.—Criminal Appeal No. 670 of 1982 has been preferred by appellants Bishambhar and Sheo Kumar sons of Kunj Behari against the judgment and order dated 30.8.1982 passed by Sessions Judge, Kheri, in Sessions Trial No. 422 of 1980 whereby accused-appellants have been convicted and sentenced as under: U/s 302 IPC Imprisonment for life U/s 307 IPC Five years’ rigorous imprisonment U/s 324 IPC Two years’ rigorous imprisonment U/s 426 IPC Two months’ rigorous imprisonment 2. Criminal Appeal No. 402 of 1983 has been preferred by the State against the same judgment and order passed in same sessions trial number whereby accused/respondents namely Pitambar, Ram Kumar @ Gangaram and Saroj Kumar have been acquitted of the charges levelled against them with the submission that on the basis of presence of these accused persons at the place of occurrence and assault on the complainant and his family members, they should also be convicted for this offence on the ground of common intention. 3. Since both criminal appeals arise out of a common judgment, they are being disposed of together by a common order. 4. The brief facts of the case are that the First Information Report was lodged by one Ram Rakhan Bajapi on 26.7.1979, which states that he and Ram Kishore were in a field in Muria Gangapur and they were busy in getting the paddy planted by their servants. Their servant Rajaram was also there. Rajaram went from the field to Muria Gangapur for fetching Sarawan. His family used to keep some of agricultural implements and cattle in Muria Gangapur. When Rajaram was returning from Muria Gangapur with buffaloes and Sarawan at about 7.00 a.m. on that day the buffaloes strayed in the fields of Pitambar who was in the fields. Annoyed with the fact that buffaloes entered into the fields, Pitambar beaten Rajaram with a danda and Rajaram sustained injuries. Bishambhar and Raj Kishore lodged protest against unwarranted act of Pitambar for beating their servant which culminated into altercations and abuses between Raj Kishore and Pitambar. At that time Pitambar left with the words that he would return back and teach them a lesson. He sent Rajkishore to fetch Shridhar and little after Shridhar alongwith Diwakar Deo, Balram, Sheo Bhagwan and Natthu Teli reached towards the field. At that time Pitambar left with the words that he would return back and teach them a lesson. He sent Rajkishore to fetch Shridhar and little after Shridhar alongwith Diwakar Deo, Balram, Sheo Bhagwan and Natthu Teli reached towards the field. Shridhar advised that the matter be peacefully settled and on that suggestion all left for Murai Gangapur and reached to the house of Natthu Pandey. Natthu Pandey was requested to get the matter amicably settled and it was about 8.30 a.m.. All the persons were sitting under Tarwaha of Natthu Pandey. In the meantime, accused Bishambhar and Sheo Kumar, armed with single barrel guns, alongwith Pitambar, who was armed with a lathi, Ram Kumar and Saroj Kumar, armed with dandas, reached there from south-west direction. They started to abuse the informant and other members present with him. In the meantime, Shridhar requested that they should be excused but soon thereafter accused Bishambhar and Sheo Kumar opened fire towards them and Saroj Kumar, Ram Kumar and Pitambar started exhorting Sheo Kumar and Bishambhar not to leave anyone alive. Due to fire used by accused Bishambhar and Sheo Kumar, Diwakar, Shridhar and Natthu Pandey got injured and the cattle which were tethered under the Tarwaha also sustained injuries. Natthu Pandey and Shridhar fell down under Tarwaha and Diwakar ran towards the main door of the house of Natthu Pandey. Accused Sheo Kumar and Bishambhar came nearer and again fired at Diwakar who fell down inside the threshold and Ram Rakhan ran into the house of Swami Dayal and saved himself. In the meantime, some labourers who were working in the field of Ram Rakhan came there and raised alarm and ran towards the place of occurrence. Thereafter, the accused persons ran away with their respective weapons. After arrangement of tractor and trolley, the injured Diwakar, Shridhar and Natthu Pandey were brought to Lakhimpur Kheri hospital for treatment where Diwakar died at about 12.30 p.m. in the way. Shridhar and Natthu Pandey were admitted in the hospital and thereafter, he went to the police station Kotwali and orally reported the matter to the police on the same day i.e. 26.7.1979 at 02.35 p.m.. The First Information Report was lodged and the inquest of the dead body was held on the same day i.e. 26.7.1979. 5. Shridhar and Natthu Pandey were admitted in the hospital and thereafter, he went to the police station Kotwali and orally reported the matter to the police on the same day i.e. 26.7.1979 at 02.35 p.m.. The First Information Report was lodged and the inquest of the dead body was held on the same day i.e. 26.7.1979. 5. The Investigating Officer prepared the inquest report, diagram of the dead body, challan, report for post-mortem examination and the same was sent for post-mortem examination to the hospital. After investigation, charge-sheet under Sections 147, 148, 149, 307 and 302 IPC was submitted against Bishambhar, Sheo Kumar, Pitambar, Ram Kumar and Saroj Kumar. 6. The Magistrate took cognizance and committed the case to the Court of sessions where a charge under Sections 148, 302/149, 307, 426 read with Section 149 IPC was framed against accused Bishambhar and Sheo Kumar and they pleaded not guilty and claimed to be tried. A further charge under Sections 147, 302/149, 307/149, 426/149 was framed against Pitambar, Ram Kumar and Saroj Kumar and they also pleaded not guilty and claimed to be tried. The prosecution has examined 11 witnesses namely PW-1 Dr. R.C. Joshi, PW-2 Dr. D.B. Pandey, PW-3 Ram Rakhan Bajpai, PW-4 Shridhar, PW-5 Rajaram, PW-6 Natthu, PW-7 Jag Mohan Lal, PW-8 Sri Pal Tiwari, PW-9 Virendra Kumar, PW-10 Mathuri Lal and PW-11 Ravindra Pratap Parasari. In defence, DW-1 Swami Dayal son of Maiku Lal, DW-2 Swami Dayal son of Mohan Lal, CW-1 Dr. Pooran Chandra and CW-2 Natthu Pandey were examined. 7. After giving an opportunity of cross-examination of the witnesses, recording of statement under Section 313 Cr.P.C. and giving opportunity of hearing to the accused, learned Sessions Judge vide order dated 30.7.1982 acquitted Pitambar, Ram Kumar and Saroj Kumar from the charges levelled against them and found guilty accused Bishambhar and Sheo Kumar under Section 302 IPC for murder of Diwakar, under Section 307 IPC for attempt to commit murder of Shridhar, under Section 324 IPC for voluntarily causing hurt to Natthu Pandey and also under Section 426 IPC for causing injuries to cattle and convicted the accused as mentioned above. 8. We have heard learned counsel for the parties and perused the record. 9. The defence of the appellants was that they have been falsely implicated in this case as they (Bishambhar and Sheo Kumar) fired in self defence to save his brother. 8. We have heard learned counsel for the parties and perused the record. 9. The defence of the appellants was that they have been falsely implicated in this case as they (Bishambhar and Sheo Kumar) fired in self defence to save his brother. Thus, they should be given the benefit of right of private defence. 10. As narrated in the evidence, the accused are the original residents of village Dhakia Gangapur and at the time of occurrence they were residing in village Dhakia Madan. The distance between two inhabited places is about one kilometre. One Jugal Kishore used to reside in village Muria Gangapur. Maiku Lal and Natthu Lal Pandey were the sons of Jugal Kishore. Swami Dayal, Ram Swarup, Ram Sewak, Balbhadder, Lalji and Chhotey Lal were the sons of Maiku Lal. Swami Dayal had a chak on the other side whereas rest of other persons had their chaks towards west of the village Muria Gangapur. Ram Rakhan Bajpai, Shridhar and Natthu Teli were the residents of village Ram Khera. As per prosecution story, Munnu Sunar had agricultural land in village Gangapur near the house of accused. Accused wanted to purchase this land but the same was purchased about 10-12 years ago by undivided family of Ram Rakhan and this created bad relations between two families. It is also the case of the prosecution that about 10-12 years ago Ram Rakhan and his family members entered into an agreement for purchase of land belonging to Ram Rewak etc. The sale-deed could not be executed for want of permission but the possession over the land had been taken over after some time. It has also been narrated in the deposition that the land of Smt. Ram Pyari and Raj Kumar had been taken on Theka by Ram Rakhan’s family and they were in possession over the land. The accused intended to purchase the aforesaid land but could not purchase due to Ram Rakhan’s family. This matter was also a bone of contention between the parties. 11. Learned counsel for the State has submitted that during incident Shridhar Bajpai and Natthu Lal got injured and they were brought to the hospital for medical examination. Dr. D.B. Pandey was examined as PW-2,who, in his statement, has narrated that he had examined Shridhar Bajpai at about 01.45 p.m. and Natthu Lal at 02.00 p.m. on 26.7.1979 and Ext. Ka-2 and Ext. Dr. D.B. Pandey was examined as PW-2,who, in his statement, has narrated that he had examined Shridhar Bajpai at about 01.45 p.m. and Natthu Lal at 02.00 p.m. on 26.7.1979 and Ext. Ka-2 and Ext. Ka-3, injury reports, were prepared by him at the time of examination. Dr. Pandey has deposed that following injuries were found on the person of Shridhar Bajai : (1) Freshly bled multiple gun-shot wounds of entry, in an area of 22 cm x 19 cm on the right aide of the chest with the sizes of the wounds varying between 5 cm x 1.5 cm and 0.1 cm x 0.1 cm. The depth had not been probed. (2) Freshly bled circular and oval shaped multiple gun-shot wounds of entry, in an area of 9 cm x 6 cm, on the inner part of the right arm near exilla with sizes varying between 0.2 cm and 0.3 cm in diameter. (3) Freshly bled circular and oval shaped multiple gun-shot wounds of entry, in an area of 30 cm x 18 cm, on the front of the left thigh. (4) Freshly bled and muscle deep, multiple gun-shot wounds of entry, in an area of 8 cm x 6 cm on the left wrist. No blackening or tattooing was found on any injury. Following injuries were found on the person of Natthu Lal : (1) Freshly bled gun-shot wounds of entry in the middle portion of the left arm, each measuring 0.2 cm in diameter and muscle deep. (2) Freshly bled multiple gun-shot wounds of entry, in an area, of, 30 cm x 11 cm, on the front portion of the left thing, circular and oval shaped, varying in measurement between 1 cm x 0.3 cm x muscle deep and 0.2 cm x 0.2 cm x muscle deep. No blackening or tattooing was found on any injury. The doctor opined that the injuries of both could be sustained on 26.7.1979 at about 8.30 a.m. and that injury No. 1 of Shridhar Bajpai was sufficient in the ordinary course of nature to cause death. 12. The post-mortem on the body of the deceased Diwakar Deo was done on 27.7.1979 at 10.00 a.m. by Dr. The doctor opined that the injuries of both could be sustained on 26.7.1979 at about 8.30 a.m. and that injury No. 1 of Shridhar Bajpai was sufficient in the ordinary course of nature to cause death. 12. The post-mortem on the body of the deceased Diwakar Deo was done on 27.7.1979 at 10.00 a.m. by Dr. R.C. Joshi (PW-1), who found the following ante-mortem injuries on the dead body : (1) Multiple gun-shot wounds of entry with inverted and irregular margins, in an area of 30 cm x 26 cm, 6 cm below the left collar bone, 10 cm, above and 3 cm, away, from the umbilicus, the largest being 0.4 cm, x 0.3 cm x chest cavity deep and the smallest being 0.3 cm x 0.2 cm with varying depth, on the left side of the chest, left axillary fold and left axillary line. On dissection, five pellets were extracted from the left side of the chest wall, with fourth and fifth fibs fractured underneath, two shots from the ribs, two shots from the ventricle of heart, five shots from the left lung tissue and seven shots from the cavity. Left pleura, left pericardium heart and left lung were found lacerated. There was 700 ml, fluid and clotted blood in the chest cavity. (2) Two gun-shot wounds of entry, with irregular and inverted margins on the left side of the abdomen, 26 cm away from the umbilicus, each measuring 0.3 cm x 0.2 cm x abdominal cavity deep. Two small pellets were recovered from upper surface of the spleen. The abdominal cavity contained 300 ml, fluid and clotted blood. (3) Two gun-shot wounds of entry, on the inner aspect of the right arm, 2 cm above the right elbow joint, 6 cm apart and each measuring 0.3 cm x 0.2 cm and muscle deep. Two small pellets were extracted from the muscles. (4) Five gun-shot wound of entry, over the left shoulder upto the back of the left middle are in an area of 10 cm x 3 cm, each measuring 0.3 cm x 0.3 cm x muscle deep five small shots were extracted from the muscles. Two small pellets were extracted from the muscles. (4) Five gun-shot wound of entry, over the left shoulder upto the back of the left middle are in an area of 10 cm x 3 cm, each measuring 0.3 cm x 0.3 cm x muscle deep five small shots were extracted from the muscles. (5) Multiple gun-shot wounds of entry over the left hip region in an area of 12 cm x 3 cm, the largest being 2 cm x 2 cm x bone deep and the smallest being 0.3 cm x 0.2 cm x muscle deep. Two wadding pieces embedded in the muscles, 19 small pellets embedded in the left hip bone and muscles were extracted. (6) Three gun-shot wounds of entry, over the front and middle of the left thing, in an area of 6 cm x 4 cm, each measuring 0.3 cm x 0.3 cm x muscle deep. (7) One gun-shot wound of entry, over the upper one-third of the right thing measuring 8 cm x 6 cm x bone deep, with blackening and scorching and singeing of the near around the wound. One cork and 2 wadding pieces from the right femur bone and 28 pellets from the muscles and bone were extracted. (8) Multiple gun-shot wounds of entry, on the lower one-third of the right thing, in an area of 12 cm x 8 cm, the largest being 3 cm x 3 cm x skin deep blackish in colour and the smallest being 0.3 cm x 0.2 cm x muscle deep. Four small shots were found embedded in the muscles and extracted. 13. On internal examination, the doctor found that the stomach contained 200 grams of semi-digested food material. He opined that the injuries were sufficient in the ordinary course of nature to cause death, that the death could occur between 8.30 a.m. and 1.30 p.m. and that it had been the result of shock and haemorrhage from the injuries. 14. During examination the doctor also opined that the injury Nos. 5 and 7 had been caused from close range. Injury No. 7 have been caused from a distance of probably within a feet and Injury No. 5 from a distance of about 2 to 4 feet. The doctor also opined that the deceased may have taken his meals about 3-4 hours before his death. 15. 5 and 7 had been caused from close range. Injury No. 7 have been caused from a distance of probably within a feet and Injury No. 5 from a distance of about 2 to 4 feet. The doctor also opined that the deceased may have taken his meals about 3-4 hours before his death. 15. In the said occurrence, two calves and one Bachhiya also sustained gunshot injuries. PW-7 Dr. Jag Mohan, who was posted as Veterinary Surgeon at Behjam, examined said animals on 29.7.1979 at 01.30 p.m. and found the following injuries : Calf No. 1 Fire-arm wound 1/4" x 1/10" x 1/20" on the hip joint. Calf No. 2 Two fire-arm wounds both circular caused by some fire-arm, the first 3" below the hump and the other 3" above the hip joint on left side. Bachhiya Fire-arm wound 1/4" x 1/10" x 1/20", 2" below the hip joint. In the opinion of the doctor, the injuries could have been caused at 08.00 or 08.30 a.m.. 16. Learned counsel for the appellants has submitted that the accused Bishambhar and Sheo Kumar started fire in self defence to save his brother because they were severely beaten by the complainant side and Pitambar sustained some injuries. Pitambar was brought to the hospital for medical examination and he was medically examined vide injury report (Ext. Ka-6) on 30.7.1979 at about 10.00 a.m. and the following injuries were found on his person : (1) Lacerated wound with haematoma, 1 cm x 4 cm x skin deep, on the right side of skull, 7 cm behind and above the right ear. (2) Contusion, 5 cm x 2 cm, on the right side of the skull, 3 cm behind and above the right ear. (3) Lacerated wound, on the left side of the skull, 4 cm above the left ear, measuring 1 cm x 0.5 cm x muscle deep. (4) Abraded contusion, 3 cm x 1 cm, on the outer side of the left chest. (5) Contusion, 2.5 cm x 1 cm, on the back of the right hand. The doctor opined that the injuries had been caused by some blunt weapon. He had not mentioned the duration in the injury report which came to be admitted because of genuineness by the defence counsel. The prosecution did not examine the doctor. 17. (5) Contusion, 2.5 cm x 1 cm, on the back of the right hand. The doctor opined that the injuries had been caused by some blunt weapon. He had not mentioned the duration in the injury report which came to be admitted because of genuineness by the defence counsel. The prosecution did not examine the doctor. 17. Learned counsel for the State has submitted that Pitambar was arrested on 30.7.1979 and in the process of his arrest, he sustained some injuries and thereafter he was brought to the police station Lakhimpur Kheri and was taken into custody. 18. Learned counsel for the appellants has argued that appellant Bishambhar Dayal was inside of his house at the time of occurrence. When he heard the loud of his brother coming from outside, he alongwith his brother Sheo Kumar came out of the house from eastern door. He saw that Shridhar and Diwarkar had been dragging his brother and has been assaulting with lathis. Appellant Bishambhar asked them to refrain from beating his brother but they did not pay any attention to his request. Thereafter, in order to save his brother, who had fallen down on the ground, he fired his gun. Diwakar ran towards him and wielded his lathi which fell on the trigger of the gun resulting in breaking of the trigger of the gun and it fired automatically with the breaking of the trigger but he did not know to whom the fire hit. Learned counsel for the appellants has also stated that Natthu was lying in a cot at that time. A similar version has been taken by accused Sheo Kumar wherein he has stated in his statement that he was inside his house and he heard the alarm of his brother and came out of the house with his gun. He saw that Shridhar and Diwakar were beating his brother with lathis. Pitambar fell down. Though he advised Shridhar and Diwakar not to beat his brother and stop beating his brother but they did not pay any attention. When then did not accede to his request then he fired to save his brother. 19. During trial two witnesses were examined in defence. Pitambar fell down. Though he advised Shridhar and Diwakar not to beat his brother and stop beating his brother but they did not pay any attention. When then did not accede to his request then he fired to save his brother. 19. During trial two witnesses were examined in defence. Swami Dayal was examined as DW-1, who has stated that at the time of occurrence at about 08.00 a.m., he was inside his house and when he heard alarm from outside, he came out and saw that Diwakar and Shridhar were beating Pitambar. Pitambar fell down. Then Bishambhar and Sheo Kumar fired with their guns. Shridhar fell down and thereafter Diwakar ran towards Bishambhar and wielded his lathi towards him on which Bishambhar and Sheo Kumar loaded their guns and fired due to which Diwakar fell down. At that time, Natthu was lying in a cot under his Tarwaha who also received some bullet injuries. 20. Dr. Pooran Chandra Pandey, Medical Officer, District Hospital Kheri, was examined as CW-1, who had prepared injury report as contained in Ext. Ka-6, had stated in his statement that he could not advise the time of injuries as mentioned in Ext. Ka-6. 21. Natthu Pandey also sustained injuries during this incident who has been examined as CW-2. He in his statement has stated that Shridhar and Diwakar came running and entered in his house while all five accused persons were chasing them. In the meantime, Diwakar was shot at by Sheo Kumar. Shridhar asked Bishambhar to excuse but he was shot at by Bishambhar. He tried to intervene but he was also shot at by Bishambar. 22. Learned counsel for the appellants has submitted that there was no motive of the accused persons for committing the crime. 23. The prosecution story reveals that there was certain dispute between the parties regarding purchase of land and when there is direct evidence, in that case, motive loses its importance and the case has to be examined on the basis of evidence on record. 24. Motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. 24. Motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role so as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. [Abu Thakir v. State; AIR 2010 SC 2119 , State of U.P. v. Nawab Singh; AIR 2010 SC 3638 , Bipin Kumar Mondal v. State of West Bengal; 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav v. State of Karnataka; (2003) 6 SCC 392 , Thaman Kumar v. State of Union Territory of Chandigarh; (2003) 6 SCC 380 , State of H.P. v. Jeet Singh; (1999) 4 SCC370] Even though existence of motive loses significance when there is reliable ocular testimony, in a case where the ocular testimony appears to be suspect the existence or absence of motive acquires some significance regarding the probability of the prosecution case [Badam Singh v. State of Madhya Pradesh; AIR 2004 SC 26 ] The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well-settled by a long line of decisions of the Court. These decisions have made a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye-witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. (Sheo Shankar Singh v. State of Jharkhand; 2011(74) ACC 159 (SC), Ravinder Kumar v. State of Punjab; 2001 (2) JIC (SC), State of H.P. v. Jeet Singh; (1999) 4 SCC 370 ; Pannayar v. State of Tamil Nadu by Inspector of Police; AIR 2010 SC 85 ) It is true that in a case of circumstantial evidence motive does have extreme significance but to say that in the absence of motive, the conviction based on circumstantial evidence cannot, in principle, be made is not correct. Motive provides foundational material Absence of motive- Not of much consequence when chain of proved circumstances is complete. [G. Prashwanath v. State of Karnataka; AIR 2010 SC 2914 , Jagdish v. State of M.P.; 2009 (67) ACC 295 (SC), Ujjagar Singh v. State of Punjab; AIR 2008 SC (Supp) 190] The prosecution case could not be denied on the ground of alleged absence or insufficiency of motive. Motive is insignificant in cases of direct evidence of eye-witnesses. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable, truthful and acceptable evidence is available on record sufficient to establish the guilty of accused persons. [Gopi Ram v. State of U.P.; 2006 (55) ACC 673 SC; State of U.P. v. Nawab Singh; 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav v. State of Karnataka; (2003) 6 SCC 392 , R.R. Reddy v. State of A.P.; AIR 2006 SC 1656 , Sucha Singh v. State of Punjab; AIR 2003 SC 1471 , State of Rajasthan v. Arjun Singh, AIR 2011 SC 3380 , Varun Chaudhry v. State of Rajasthan, AIR 2011 SC 72 ] 25. The motive as raised on behalf of the appellants is that the prosecution has failed to prove any motive for the commission of the crimed and in absence of clear and emphatic motive the order of conviction is liable to be set-aside and the accused persons are entitled to acquittal. The motive as raised on behalf of the appellants is that the prosecution has failed to prove any motive for the commission of the crimed and in absence of clear and emphatic motive the order of conviction is liable to be set-aside and the accused persons are entitled to acquittal. This submission is, firstly, based on misreading of the record and secondly it is devoid of any merits. The evidence on record indicates that the relation between the parties were quite strained and the way the crime has been committed clearly indicates that they were unhappy with the purchase of land and later on by beating the servant. Be that as it may, it is not always necessary for the prosecution to establish a definite motive for the commission of the crime. It will always be relatable to the facts and circumstances of a given case. It will not be correct to say as an absolute proposition of law, that the existence of a strong or definite motive is a sine qua non to holding an accused guilty of a criminal offence. It is not correct to say that absence of motive essentially results in the acquittal of an accused if he is otherwise found to be guilty. In Babu Lodhi v. State of U.P., (1987) 2 SCC 352 , the Apex Court took the view that insofar as the adequacy of motive is concerned, it is not a matter which can be accurately weighed on the scales of a balance. 26. When there is a sufficient direct evidence regarding the commission of offence, the question of motive will not loom large in the mind of the Court, though motive is a double edged weapon and the key question for consideration is whether the prosecution had convincingly and satisfactorily established the guilt of all or any of the accused beyond reasonable doubt by letting in reliable and cogent evidence. But proof of the existence of a motive is not necessary for a conviction for any offence. 27. Learned counsel for the appellants has challenged the judgment on the ground that the alleged witnesses produced by the prosecution are family members of the deceased, as such, they are interested witnesses. The conviction of the appellants is primarily based on the statement of these witnesses, which, as such, is liable to be set-aside. 27. Learned counsel for the appellants has challenged the judgment on the ground that the alleged witnesses produced by the prosecution are family members of the deceased, as such, they are interested witnesses. The conviction of the appellants is primarily based on the statement of these witnesses, which, as such, is liable to be set-aside. It has also been submitted that the prosecution has failed to prove its case beyond any reasonable doubt. The conduct and role of the accused/appellants as attributed by the prosecution is not only improbable but is impossible to be believed. 28. On the contrary, learned counsel appearing for the State has argued that there was sufficient documentary and expert evidence on record. The version of the eye-witnesses cannot be doubted. Their presence on the site was natural and they had no reason to falsely implicate all or any of the accused in the murder of the deceased. It is contended that the version of the eye-witnesses is fully supported by the evidence of the expert and the statement of the Investigating Officer. 29. In order to examine the contention of the prosecution and defence raised in the present appeals, it will be necessary for us to refer to the facts appearing from the case of the prosecution. In a nutshell, Ram Rakhan and Ram Kishore were in a field in Muria Gangapur and they were busy in getting the paddy planted by their servants. Their servant Rajaram was also there. Rajaram went from the field to Muria Gangapur for fetching Sarawan from where he was returning with buffaloes and Sarawan. In the meantime, buffaloes strayed in the fields of Pitambar who was in the fields. Annoyed with the fact that buffaloes entered into the fields, Pitambar beaten Rajaram with a danda and Rajaram sustained injuries on which Ram Rakhan and Raj Kishore lodged protest against unwarranted act of Pitambar which cultimated into altercation and abuse and thereafter Shridhar middled between them and suggested that the matter be amicably settled at the house of Natthu Pandey. This incident of entering buffaloes in the fields of Pitambar is said to be of about 07.00 a.m.. They gathered at the houseof Natthu Pandey at 08.30 a.m.. In the meantime, Bishambhar and Sheo Kumar came there with their single barrel guns. This incident of entering buffaloes in the fields of Pitambar is said to be of about 07.00 a.m.. They gathered at the houseof Natthu Pandey at 08.30 a.m.. In the meantime, Bishambhar and Sheo Kumar came there with their single barrel guns. Pitambar armed with a lathi, Ram Kumar and Saroj Kumar armed with dandas reached there from south-west direction and started abusing the informant and other members present with him. Shridhar requested to excuse them but soon thereafter accused Bishambhar and Sheo Kumar opened fire and other accused persons were exhorting Sheo Kumar and Bishambhar not to leave anyone alive. Fires resulted in injuries to Diwakar, Shridhar and Natthu Pandey and the cattle which were tethered under the Tarwaha. On sustaining injuries, Natthu Pandey and Shridhar fell down under Tarwaha while Diwakar ran towards the main door of the house of Natthu Pandey but appellants Sheo Kumar and Bishambhar came nearer and again fired at Diwakar who fell down inside the threshold and succumbed to injuries later on. 30. In light of above facts, the natural witnesses who were present at the spot at the time of occurrence and who sustained injuries were examined by the prosecution. There is no hard and fast rule that family members can never be true witnesses to the occurrence and they will always depose falsely before the Court. It will always depends upon the facts and circumstances of a given case. In the case of Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC 199 , the Court took a view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. 31. The only requirement to scrutinize the evidence of related witnesses, under law, is that their evidence should be scrutinized with extra care and caution but the same cannot be discarded only on the ground of their relationship. On this point, reference may be made to the pronouncement of Hon’ble the Apex Court in the case of Appa v. State of Gujarat, AIR 1988 SC 698, wherein Hon’ble Apex Court has observed that “Experience reminds us that civilized people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any suggested by the accused”. (Underlined by us) 32. Reference may be made on the pronouncement of Hon’ble the Apex Court in the case of Sahabuddin and another v. State of Assam passed in Criminal Appeal No. 629 of 2010. In this case Hon’ble the Apex Court has discussed the legal position on this point in paragraph No. 16. Relevant portion of the aforesaid judgment reads as under : “16. ................. At this stage, we may refer to the judgment of this Court in the case of Gajoo v. State of Uttarakhand [JT 2012 (9) SC 10], where the Court while referring to various previous judgments of this Court, held as under : We are not impressed with this argument. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. In the case of Dalip Singh v. State of Punjab, (1954) SCR 145, while rejecting the argument that witnesses who are close-relatives of the victim should not be relied upon, the Court held as under : 26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge alongwith the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” Similar view was taken by this Court in the case of State of A.P. v. S. Rayappa and others, (2006) 4 SCC 512 . The Court observed that it is now almost a fashion that public is reluctant to appear and depose before the Court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court also stated the principle that, “by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.” This Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called interested only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished. {Ref. State of Uttar Pradesh v. Kishanpal and others, [ (2008) 16 SCC 73 ]} In the case of Darya Singh and others v. State of Punjab, AIR 1965 SC 328 , the Court held as under : 6. ............ On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars.” 33. ............ On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars.” 33. It will be useful to make a reference of another judgment of Hon’ble the Apex Court, in the case of Satbir Singh and others v. State of Uttar Pradesh, (2009) 13 SCC 790 , wherein Hon’ble the Apex Court has held as under : “26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon.........” 34. Again in a recent judgment in the case of Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673 , Hon’ble the Apex Court has held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent person. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimical towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same. 35. The Hon’ble Apex Court, in the case of ‘’Pulicherla Nagaraju @ Nagaraja Reddy v. State of A.P.’ (2007) 1 SCC (Cri) 500, has held in paragraph No. 16 as under : “In this case, we find that the trial Court had rejected the evidence of PW1 and PW2 merely because they were interested witnesses being the brother and father of the deceased. But it is well-settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise, found to be trustworthy and credible. But it is well-settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise, found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted. (Vide Hari Obula Reddy v. State of A.P., Ashok Kumar Pandey v. State of Delhi, and Bijoy Singh v. State of Bihar). Nothing had been elicited in the cross-examination of PW1 and PW2 to discredit their evidence. Their evidence finds corroboration in Ex.P-1 and the evidence of the doctors (PW11 and PW12) and the MOs seized on the disclosures made by A-1 and A-3. Therefore, the High Court rightly held that the evidence of PWs1 and 2 could not be rejected, even though they were closely related to the deceased and inimically disposed towards the accused. There is no infirmity in the decision of the High Court by re-appreciating the evidence and reaching independent conclusions.” 36. The Apex Court in the case of ‘Dharnidhar v. State of Uttar Pradesh and others’ (2010) 7 SCC 759 , in paragraph Nos. 12 to 14, has held as under : “12. There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry [ (2010)1 SCC 199 ], this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: “23. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: “23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court, while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. 24. From a perusal of the record, we find that the evidence of PWs 1 to 4 is clear and categorical in reference to the frequent quarrels between the deceased and the appellant. They have clearly and consistently supported the prosecution version with regard to the beating and the ill-treatment meted out to the deceased by the appellant on several occasions which compelled the deceased to leave the appellant’s house and take shelter in her parental house with an intention to live there permanently. PWs 1 to 4 have unequivocally stated that the deceased feared threat to her life from the appellant. The aforesaid version narrated by the prosecution witnesses, viz. PWs 1 to 4 also finds corroboration from the facts stated in the complaint.” 13. Similar view was taken by this Court in Ram Bharosey v. State of U.P., AIR 2010 SC 917 , where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well-settled, according to which, the version of an interested witness cannot be thrown over-board, but has to be examined carefully before accepting the same. 14. The law relating to appreciation of evidence of an interested witness is well-settled, according to which, the version of an interested witness cannot be thrown over-board, but has to be examined carefully before accepting the same. 14. In the light of the above judgments, it is clear that the statements of the alleged interested witnesses can be safely relied upon by the Court in support of the prosecution’s story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then we see no reason why the statement of so called ‘interested witnesses’ cannot be relied upon by the Court.” 37. As per the dictum of the Apex Court, it is now a settled position of law that the statements of the alleged interested witnesses can be safely relied upon by the Court in support of the prosecution’s story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then there is no reason as to why the statement of so-called ‘interested witnesses’ cannot be relied upon by the Court. It would be hard to believe that the close relatives shall leave the real culprit and shall implicate innocent persons falsely simply because they have enmity with the accused persons. 38. The next point which has been raised by learned counsel for the appellants is regarding giving the benefit of acquittal of co-accused persons. Admittedly, the role assigned to the present appellants, who have been convicted by the learned trial Court, was that they fired on the deceased, and injured, with their guns which resulted in the death of the deceased. The next point which has been raised by learned counsel for the appellants is regarding giving the benefit of acquittal of co-accused persons. Admittedly, the role assigned to the present appellants, who have been convicted by the learned trial Court, was that they fired on the deceased, and injured, with their guns which resulted in the death of the deceased. The role of rest of the accused persons, who have been acquitted by the learned trial Court, was of exhortation only, therefore, learned trial Court on this ground was of the view that the case of the remaining accused persons is distinguishable from the present appellants and extended them the benefit of doubt. The present appellants have argued that they should also be given the benefit of doubt. 39. Law is settled on the point that it is the duty of the Court to separate grain from chaff and where the evidence of the witnesses with regard to a particular accused can be separated, the Court will not commit any illegality in convicting the said accused while acquitting the remaining accused persons. The maxim Falsus in uno, falsus in omnibus has no application in India. On this point, reference may be made to the pronouncement of Hon’ble the Apex Court in the case of Gangadhar Behera and others v. State of Orissa, MANU/SC/0875/2002, wherein Hon’ble the Apex Court has observed in paragraph 16 as under : “Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liar. The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called ‘a mandatory rule of evidence.” Thus, in view of the aforementioned pronouncement of Hon’ble the Apex Court since the prosecution evidence was very clear and separable from the remaining accused persons with regard to the present appellants, appellants cannot be granted any benefit only on the ground that other accused persons have been acquitted. 40. We may examine another aspect of this case whereby the accused/appellants were examined under Section 313 Cr.P.C. and they have not denied the incident as stated by the prosecution. In the statement under Section 313 Cr.P.C., appellant Bishambhar Dayal has narrated that at the time of occurrence he was inside the house and when he heard the noise of his brother then he saw Shridhar and Diwakar assaulting his brother and to save his brother he came out with his gun and fired. Diwakar ran towards Bishambhar and assaulted with lathi which fallen on the trigger of the gun resulting in broken of the trigger and ultimately it fired but he did not know any fire-arm injury was caused to any other person present there. Similarly, appellant Sheo Kumar has also narrated in his statement under Section 313 Cr.P.C. that he came out with the gun at the time when Shridhar and Diwakar were assaulting his brother and fired in defence of his brother. Similar statement has been made by rest of the accused persons who have been acquitted by the learned trial Court. In the above circumstances, the incident, place of occurrence and firing have not been disputed by the appellants. Even if this statement is assumed to be correct even then the accused/appellants cannot turn back and deny the existence of incident between the parties. This would further be one of the limb connecting and completing the crime of murder. In the above circumstances, the incident, place of occurrence and firing have not been disputed by the appellants. Even if this statement is assumed to be correct even then the accused/appellants cannot turn back and deny the existence of incident between the parties. This would further be one of the limb connecting and completing the crime of murder. Besides giving a general denial even to the basic facts the appellants/accused in the last questions put to them by the Court in their statements under Section 313 Cr.P.C. have stated the incident, firing and cause of incident. 41. It is a settled principle of law that the statement made by the accused under Section 313 of the Cr.P.C. can be used by the Court to the extent that it is in line with the case of the prosecution. The same cannot be the sole basis for convicting an accused. In the present case, the statement of accused before the Court, to some extent, falls in line with the case of the prosecution and to that extent, the case of the prosecution can be substantiated and treated as correct by the Court. The legislative intent behind this section appears to have twin objects. Firstly, to provide an opportunity to the accused to explain the circumstances appearing against him. Secondly, for the Court to have an opportunity to examine the accused and to elicit an explanation from him, which may be free from the fear of being trapped for an embarrassing admission or statement. 42. The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 of the Cr.P.C. is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the Court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail of that opportunity and if he fails to do so then it is for the Court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 of the Cr.P.C. 43. It was for the accused to avail of that opportunity and if he fails to do so then it is for the Court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 of the Cr.P.C. 43. In Hate Singh Bhagat Singh v. State of Madhya Bharat, AIR 1953 SC 468 , while dealing with Section 342 of the old Cr.P.C. equivalent to Section 313 of the present Cr.P.C. observed that answer of the accused given can be used in other enquiries or trials for other offences. 44. In the case of Narayan Singh v. State of Punjab, (1963) 3 SCR 678 , a Three Judge Bench of this Court held as under: “Under Section 342 of the Cr.P.C. of Criminal Procedure by the first Sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation if any, of the incident which forms the subject-matter of the charge and his defence. By Sub-section (3), the answers given by the accused may “be taken into consideration” at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him the Court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety. 45. 45. Following the law laid down in Narayan Singh’s case (supra) the Apex Court in State of Maharashtra v. Sukhdeo Singh, 1992 CriLJ 3454, further dealt with the question whether a statement recorded under Section 313 of the Cr.P.C. can constitute the sole basis for conviction and recorded a finding that the answers given by the accused in response to his examination under Section 313 of the Cr.P.C. of 1973 can be taken into consideration in such an inquiry or trial though such a statement strictly is not evidence and observed in paragraph 52 thus: “Even on the first principle we see no reason why the Court could not act on the admission or confession made by the accused in the course of the trial or in his statement recorded under Section 313 of the Cr.P.C.....” It is thus well established in law that admission or confession of accused in the statement under Section 313 of the Cr.P.C. recorded in the course of trial can be acted upon and the Court can rely on these confessions to proceed to convict him. 46. The possibility of the accused being falsely implicated in this case, in our opinion, stands ruled out. The statement of the afore-referred witnesses, read in conjunction with the documents filed on record, expert evidence, recovery of weapons and blood stained earth, clearly establishes beyond reasonable doubt, the guilt of the accused. 47. Pitambar is said to be arrested on 30.7.1979. Learned counsel for the appellants had submitted that there was also injury on the part of the body of Pitambar and non-explanation of the injuries on the part of body of Pitambar is a serious flaw on the part of the prosecution and it reveals that true version has not been placed before the Court. 48. The version of the informant/prosecution is that Pitambar was scolded by Ram Rakhan and one Vipin and while catching hold, there were certain injuries on the body of Pitambar on 30.7.1979. These injuries were not caused on the date of occurrence while it is the version of the appellants that these injuries were caused by the informant and his family members on the date of incident due to which appellants Bishambhar and Sheo Kumar fired to save his brother Pitambar. These injuries were not caused on the date of occurrence while it is the version of the appellants that these injuries were caused by the informant and his family members on the date of incident due to which appellants Bishambhar and Sheo Kumar fired to save his brother Pitambar. After arrest, Pitambar was medically examined on 30.7.1979 at about 10.00 a.m. and injuries as narrated above were found on the person of Pitambar. The doctor had opined that the injuries have been caused by some blunt weapon but he had not mentioned the duration in the injury report. 49. Now, on this ground, the appellants had taken a plea of right to private defence. 50. We deem it appropriate to briefly discuss the principle of right of private defence and how the Courts have crystallized this principle in some important judgments. 51. Relevant provisions dealing with the right of private defence are Sections 96 and 97 of the Indian Penal Code. “96. Things done in private defence.—Nothing is an offence which is done in the exercise of the right of private defence. 97. Right of private defence of the body and of property.—Every person has a right subject to the restrictions contained in Section 99, to defend— First.—His own body, and the body of any other person, against any offence affecting the human body; Secondly.—The property, whether moveable or immoveable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.” 52. Section 100 of the Indian Penal Code is extracted as under: “100. Section 100 of the Indian Penal Code is extracted 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.” 53. Section 100 of the Indian Penal Code justifies the killing of an assailant when apprehension of atrocious crime enumerated in several clauses of the section is shown to exist. First clause of Section 100 applies to cases where there is reasonable apprehension of death while second clause is attracted where a person has a genuine apprehension that his adversary is going to attack him and he reasonably believes that the attack will result in a grievous hurt. In that event he can go to the extent of causing the latter’s death in the exercise of the right of private defence even though the latter may not have inflicted any blow or injury on him. 54. It is settled position of law that in order to justify the act of causing death of the assailant, the accused has simply to satisfy the Court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case and no strait-jacket formula can be prescribed in this regard. The weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether the apprehension was justified or not? The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case and no strait-jacket formula can be prescribed in this regard. The weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether the apprehension was justified or not? SCOPE AND FOUNDATION OF THE PRIVATE DEFENCE 55. The rule as to the right of private defence has been stated by Russel on Crime (11th Edn., Vol.1, p.491) thus: “..... a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended, and if in a conflict between them he happens to kill his attacker, such killing is justifiable.” When enacting Sections 96 and 106 of the Indian Penal Code, excepting from its penal provisions, certain classes of acts, done in good faith for the purpose of repelling unlawful aggressions, the Legislature clearly intended to arouse and encourage the manly spirit of self-defence amongst the citizens, when faced with grave danger. The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by this Court there is nothing more degrading to the human spirit than to run away in face of danger. The right of private defence is thus designed to serve a social purpose and deserves to be fostered within the prescribed limits. 56. Hari Singh Gour in his celebrated book on Penal Law of India (11th Edition 1998-99) aptly observed that self-help is the first rule of criminal law. It still remains a rule, though in process of time much attenuated by considerations of necessity, humanity, and social order. According to Bentham, in his book ‘Principles of Penal Laws’ has observed “the right of defence is absolutely necessary”. It is based on the cardinal principle that it is the duty of man to help himself. 57. It still remains a rule, though in process of time much attenuated by considerations of necessity, humanity, and social order. According to Bentham, in his book ‘Principles of Penal Laws’ has observed “the right of defence is absolutely necessary”. It is based on the cardinal principle that it is the duty of man to help himself. 57. Killing in defence of a person, according to the English law, will amount to either justifiable or excusable homicide or chance medley, as the latter is termed, according to the circumstances of the case. 58. But there is another form of homicide which is excusable in self-defence. There are cases where the necessity for self-defence arises in a sudden quarrel in which both parties engage, or on account of the initial provocation given by the person who has to defend himself in the end against an assault endangering life. 59. The Indian Penal Code defines homicide in self-defence as a form of substantive right, and therefore, save and except the restrictions imposed on the right of the Code itself, it seems that the special rule of English Law as to the duty of retreating will have no application to this country where there is a real need for defending oneself against deadly assaults. 60. The right to protect one’s own person and property against the unlawful aggressions of others is a right inherent in man. The duty of protecting the person and property of others is a duty which man owes to society of which he is a member and the preservation of which is both his interest and duty. It is, indeed, a duty which flows from human sympathy. As Bentham said: “It is a noble movement of the heart, that indignation which kindles at the sight of the feeble injured by the strong. It is noble movement which makes us forget our danger at the first cry of distress. It concerns the public safety that every honest man should consider himself as the natural protector of every other.” But such protection must not be extended beyond the necessities of the case, otherwise it will encourage a spirit or lawlessness and disorder. The right has, therefore, been restricted to offences against the human body and those relating to aggression on property. 61. The right has, therefore, been restricted to offences against the human body and those relating to aggression on property. 61. When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also settled position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is not a right to take revenge. 62. Right of private defence of person and property is recognized in all free, civilsed, democratic societies within certain reasonable limits. Those limits are dictated by two considerations : (1) that the same right is claimed by all other members of the society and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrong done to them or to punish the wrong doer of commission of offences. 63. A legal philosopher Michael Gorr in his article “Private Defense” (published in the Journal “Law and Philosophy” Volume 9, Number 3/August 1990 at Page 241) observed as under: “Extreme pacifists aside, virtually everyone agrees that it is sometimes morally permissible to engage in what Glanville Willams has termed “private defence”, i.e., to inflict serious (even lethal) harm upon another person in order to protect oneself or some innocent third party from suffering the same”. 64. The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. 65. Courts in number of cases have laid down that when a person is exercising his right of private defence, it is not possible to weigh the force with which the right is exercised. The principle is common to all civilized jurisprudence. In Robert B. Brown v. United States of America, (1921) 256 US 335, it is observed that a person in fear of his life in not expected to modulate his defence step by step or tier by tier. Justice Holmes in the aforementioned case aptly observed “detached reflection cannot be demanded in the presence of an uplifted knife”. 66. According to Section 99 of the Indian Penal Code the injury which is inflicted by the person exercising the right should 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 bona fide defender. The Courts in one voice have said that it would be wholly unrealistic to expect of a person under assault to modulate his defence step by step according to attack. 67. The Courts have always consistently held that the right of private defence 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 100 of the IPC. According to the combined effect of two clauses of Section 100 IPC 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. According to the combined effect of two clauses of Section 100 IPC 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. 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. BRIEF ENUMERATION OF IMPORTANT CASES: 68. The legal position which has been crystallized from a large number of cases is that law does not require a citizen, however law-abiding he may be, to behave like a rank coward on any occasion. This principle has been enunciated in Mahandi v. Emperor, (1930) 31 Criminal Law Journal 654 (Lahore); Alingal Kunhinayan and another v. Emperor, Indian Law Reports 28 Madras 454; Ranganadham Perayya, In re (1957) 1 Andhra Weekly Reports 181. 69. The law clearly spells out that right of private defence is available only when there is reasonable apprehension of receiving the injury. The law makes it clear that it is necessary that the extent of right of private defence is that the force used must bear a reasonable proportion of the injury to be averted, that is the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted. A person in fear of his life is not expected to modulate his defence step by step, but at the same time it should not be totally disproportionate. 70. A Full Bench of the Orissa High Court in State of Orissa v. Rabindranath Dalai and another, 1973 Crl LJ 1686 (Orissa) (FB), summarized the legal position with respect to defence of person and property thus: “In a civilized society the defence of person and property of every member thereof is the responsibility of the State. Consequently, there is a duty cast on every person faced with apprehension of imminent danger of his person or property to seek the aid of the machinery provided by the State but if immediately such aid is not available, he has the right of private defence. 71. Consequently, there is a duty cast on every person faced with apprehension of imminent danger of his person or property to seek the aid of the machinery provided by the State but if immediately such aid is not available, he has the right of private defence. 71. In Laxman Sahu v. State of Orissa, 1986 (1) Supp SCC 555, this Court observed that it is needless to point out in this connection that the right of private defence is available only to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation. 72. In Raghavan Achari v. State of Kerala, 1993 Supp. (1) SCC 719, this Court observed that “No Court expects the citizens not to defend themselves especially when they have already suffered grievous injuries”. 73. In Jagtar Singh v. State of Punjab, AIR 1993 SC 970 , this Court held that “the accused has taken a specific plea of right of self-defence and it is not necessary that he should prove it beyond all reasonable doubt. But if the circumstances warrant that he had a reasonable apprehension that death or grievous hurt was likely to be caused to him by the deceased or their companions, then if he had acted in the right of self-defence, he would be doing so lawfully.” 74. In Puran Singh and others v. The State of Punjab, (1975) 4 SCC 518 , this Court observed that in the following circumstances right of private defence can be exercised: i. There is no sufficient time for recourse to the public authorities ii. There must be a reasonable apprehension of death or grievous hurt to the person or danger to the property concerned. iii. More harm than necessary should not have been caused. 75. In Bhagwan Swaroop v. State of Madhya Pradesh, (1992) 2 SCC 406 , this Court had held as under : “It is established on the record that Ramswaroop was being given lathi blows by the complainant party and it was at that time that gun-shot was fired by Bhagwan Swaroop to save his father from further blows. A lathi is capable of causing a simple as well as a fatal injury. Whether in fact the injuries actually caused were simple or grievous is of no consequence. A lathi is capable of causing a simple as well as a fatal injury. Whether in fact the injuries actually caused were simple or grievous is of no consequence. It is the scenario of a father being given lathi blows which has to be kept in mind and we are of the view that in such a situation a son could reasonably apprehend danger to the life of his father and his firing a gun-shot at that point of time in defence of his father is justified.” 76. In Kashmiri Lal and others v. State of Punjab, (1996) 10 SCC 471 , this Court held that “a person who is unlawfully attacked has every right to counteract and attack upon his assailant and cause such injury as may be necessary to ward off the apprehended danger or threat.” 77. In James Martin v. State of Kerala, (2004) 2 SCC 203 , this Court again reiterated the principle that the accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea. 78. In Gotipulla Venkatasiva Subbrayanam and others v. The State of Andhra Pradesh and another, (1970) 1 SCC 235 , this Court held that “the right to private defence is a very valuable right and it has been recognized in all civilized and democratic societies within certain reasonable limits.” 79. In Mahabir Choudhary v. State of Bihar, (1996) 5 SCC 107 , this Court held that “the High Court erred in holding that the appellants had no right to private defence at any stage. However, this Court upheld the judgment of the sessions Court holding that since the appellants had right to private defence to protect their property, but in the circumstances of the case, the appellants had exceeded right to private defence. The Court observed that right to private defence cannot be used to kill the wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence including killing”. 80. The Court observed that right to private defence cannot be used to kill the wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence including killing”. 80. In Munshi Ram and others v. Delhi Administration, (1968) 2 SCR 455 , this Court observed that “it is well-settled that even if the accused does not plead self defence, it is open to consider such a plea if the same arises from the material on record. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of materials available on record. 81. In State of Madhya Pradesh v. Ramesh, (2005) 9 SCC 705 , this Court observed “every person has a right to defend his own body and the body of another person against any offence, affecting the human body. The right of self defence commences as soon as reasonable apprehension arises and it is co-terminus with the duration of such apprehension. Again, it is defensive and not retributive right and can be exercised only in those cases where there is no time to have recourse to the protection of the public authorities.” 82. In Triloki Nath and others v. State of U.P., (2005) 13 SCC 323 , the Court observed as under : “No decision relied upon by the Appellants lays down a law in absolute terms that in all situations injuries on the persons of the accused have to be explained. Each case depends upon the fact situation obtaining therein.” 83. In Vidhya Singh v. State of Madhya Pradesh, (1971) 3 SCC 244 , the Court observed that “the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objectivity which would be so natural in a Court room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances.” 84. In Jai Dev v. State of Punjab, AIR 1963 SC 612 , the Court held as under : “as soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence.” 85. In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. 86. In Buta Singh v. The State of Punjab, (1991) 2 SCC 612 , the Court noted that a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private-defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.” 87. The following principles emerge on scrutiny of the judgments: (i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits. (ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. (iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. (iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension. (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. (vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. (vii) It is well-settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. (vii) It is well-settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. (ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. 88. The Code excepts from the operation of its penal clauses large classes of acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed by several principles and limitations. The most salient of them concerned the defence of body are as under : (i) Firstly, there is no right of private defence against an act which is not in itself an offence under the Code; (ii) Secondly, 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 (Section 102). That is to say, right avails only against a danger imminent, present and real; (iii) Thirdly, it is a defensive and not and 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. (Section 99). 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. 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. (Section 99). 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 bona fide 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.” It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack; (iv) Fourthly, 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 100. For our purpose, only the first two clauses of Section 100 are relevant 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. This principle is also subject to the preceding rule that the harm or death inflicted to avert the danger is not substantially disproportionate to and incommensurate with the quality and character of the perilous act or threat intended to be repelled; Fifthly, there must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailent; Sixthly; the right being, in essence, a defensive right, does not accrue and avail where there is “time to have recourse to the protection of the public authorities.” (Section 99). 89. 89. Before coming to the facts of the instant case, the principles governing the burden of proof where the accused sets up a plea of private defence, may also be seen, Section 105, Evidence Act enacts an exception to the general rule whereby in a criminal trial the burden of proving everything necessary to establish the charge against the accused beyond reasonable doubt, rests on the prosecution. According to the section, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code; or within any special exception or proviso contained in any other part of the Code or in any other Law, shall be on the accused person, and the Court shall presume the absence of such circumstances. But this Section does not neutralise or shift the general burden that lies on the prosecution to prove beyond reasonable doubt all the ingredients of the offence with which the accused stand charged. Therefore, where the charge about the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention described in Section 299 of the Penal Code. It is only after the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the accused had acted in the exercise of his right of private defence, arises. As pointed out by the Court in Dahyabhai v. State of Gujarat, under Section 105, read with the definition of “shall presume” in Section 5, Evidence Act, the Court shall regard the absence of circumstances on the basis of which the benefit of an Exception (such as the one on which right of private defence is claimed), as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. The accused has to rebut the presumption envisaged in the last limb of Section 105, by bringing on record evidential material before the Court sufficient for a prudent man to believe that the existence of such circumstances is probable. The accused has to rebut the presumption envisaged in the last limb of Section 105, by bringing on record evidential material before the Court sufficient for a prudent man to believe that the existence of such circumstances is probable. In other words, even under Section 105, the standard of proof required to establish those circumstances is that of a prudent man as laid down in Section 3, Evidence Act. But within that standard there are degrees of probability, and that is why under Section 105, the nature of burden on an accused person claiming the benefit of an Exception, is not as onerous as the general burden of proving the charge beyond reasonable doubt cast on the prosecution. The accused may discharge his burden by establishing a mere balance of probabilities in his favour with regard to the said circumstances. 90. The material before the Court to establish such a preponderance of probability in favour of the defence plea may consist of oral or documentary evidence, admissions appearing in evidence led by the prosecution or elicited from prosecution witnesses in cross-examination presumptions, and the statement of the accused recorded under Section 313 of the CrPC, 1973. 91. Section 96 IPC provides that nothing is an offence which is done in exercise of the right of private defence. The expression “right of private defence” is not defined in the Section. The Section merely indicates that nothing is an offence which is done in the exercise of such right. Similarly, Section 97 IPC recognises the right of a person not only to defend his own or another’s body, it also embraces the protection of property, whether one’s own or another person’s against certain specified offences, namely, theft, robbery, mischief and criminal trespass. Section 99 IPC lays down exceptions to which rule of self defence is subject. Section 100 IPC provides, inter alia, that the right of private defence of the body extends, under the restrictions mentioned in Section 99 IPC, to the voluntary causing of death, if the offence which occasions the exercise of the right be an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Section 100 IPC provides, inter alia, that the right of private defence of the body extends, under the restrictions mentioned in Section 99 IPC, to the voluntary causing of death, if the offence which occasions the exercise of the right be an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. In other words, if the person claiming the right of private defence has to face the assailant, who can be reasonably apprehended to cause grievous hurt to him, it would be open to him to defend himself by causing the death of the assailant. 92. The scope and width of private defence is further explained in Sections 102 and 105 IPC, which deal with commencement and continuance of the right of private defence of body and property respectively. According to these provisions, the right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt or threat, to commit offence, although the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as reasonable apprehension of the danger to the body continues. (See: Jai Dev v. State of Punjab13.) 93. To put it pithily, the right of private defence is a defensive right. It is neither a right of aggression nor of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger which is not self created. Necessity must be present, real or apparent. (See: Laxman Sahu v. State of Orissa14.) AIR 1963 SC 612 AIR 1988 SC 83 94. Thus, the basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the state machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. We may, however, hasten to add that the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon host of factors like the prevailing circumstances at the spot; his feelings at the relevant time; the confusion and the excitement depending on the nature of assault on him etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence. (See: Dharam and others v. State of Haryana15.) JT 2007 (1) SC 299 95. It is well-settled that the burden of establishing the plea of self defence is on the accused but it is not as onerous as the one that lies on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea of self defence to the hilt and may discharge the onus by showing preponderance of probabilities in favour of that plea on the basis of the material on record. In Vidhya Singh v. State of Madhya Pradesh16, this Court had observed that right of self defence should not be construed narrowly because it is a very valuable right and has a social purpose. (Also see: Munshi Ram and others v. Delhi Administration17; The State of Gujarat v. Bai Fatima and another18 and Salim Zia v. State of Uttar Pradesh19.) 96. (Also see: Munshi Ram and others v. Delhi Administration17; The State of Gujarat v. Bai Fatima and another18 and Salim Zia v. State of Uttar Pradesh19.) 96. In order to find out whether right of private defence was available or not, the occasion for and the injuries received by an accused, the imminence of threat to his safety, the injuries caused by the accused and circumstances whether the accused had time to have recourse to public authorities are relevant factors, yet the number of injuries is not always considered to be a safe criterion for determining who the aggressor was. It can also not be laid down as an unqualified proposition of law that whenever injuries are on the body of the accused person, the 1971 (3) SCC 244 ; AIR 1968 SC 702 ; AIR 1975 SC 1478 ; AIR 1979 SC 391 ; presumption must necessarily be raised that the accused person had acted in exercise of his right of private defence. The defence has to further establish that the injury so caused on the accused probabilise the version of the right of private defence. 97. In the present case, PW-1 Dr.R.C. Joshi had conducted the inquest report of the deceased Diwakar and the injuries found on the person of the deceased have been mentioned in the upper part of the judgment. PW-2 Dr. D.B. Pandey has deposed that he had examined injured Shridhar Bajpai and found four multiple gunshot wounds on the body of the injured. PW-3 Ram Rakhan Bajpai and PW-4 Shridhar are eye-witnesses, who have supported the case of the prosecution. PW-5 Rajaram and PW-6 Natthu are also eye-witnesses who have deposed the manner of incident and assault on the deceased and the injured. PW-7 Dr. Jagmohan Lal, a veterinary surgeon, had examined the injuries of the cattle, which have been discussed in the upper part of the judgment and requires no repetition. PW-8 Constable Sripati Tiwari was posted as Head Moharrir in the police station on the date of occurrence and on the information of the incident, he entered the information in the GD and proved the document Ext. Ka-9. PW-9 Constable Virendra Kumar is a formal witness who had brought the dead body to the mortuary for postmortem examination. PW-8 Constable Sripati Tiwari was posted as Head Moharrir in the police station on the date of occurrence and on the information of the incident, he entered the information in the GD and proved the document Ext. Ka-9. PW-9 Constable Virendra Kumar is a formal witness who had brought the dead body to the mortuary for postmortem examination. PW-10 SI Mathuri Lal was posted as SO Neelgaon from July, 1979 to September, 1979 and when the matter was brought in books, he conducted the investigation. PW-11 SI Ravindra Pratap Parasari was also concerned with the investigation of this case and he has proved the documents Ext. Ka-15 to Ext. Ka-19. Besides this, defence has examined DW-1 Swami Dayal son of Maiku Lal, DW-2 Swami Dayal son of Mohan Lal, CW-1 Dr. Pooran Chandra and CW-2 Natthu Pandey, who have narrated the incident in similar way, which has been brought on record by the prosecution. 98. If we examine the deposition of the defence witnesses in light of the statement under Section 313 Cr.P.C. then we find that the version of the incident, place of occurrence, death of the deceased are admitted facts. The only difference regarding the story of the prosecution and the defence is that the prosecution has submitted that it is a case of intentional murder while the defence has taken a ground that the appellants Bishambar and Sheo Kumar exercised their right of private defence to protect his brother. Thus, it is not necessary to discuss in detail the deposition of the prosecution witnesses. The deposition of the prosecution witnesses reveals that when the appellants came out of the house with guns, Diwakar ran inside the house of Natthu Pandey. Bishambhar and Sheo Kumar came forward and shot at him. The statements of all witnesses of the prosecution are to this effect which get corroboration from the surrounding circumstances. If we examine the injuries which were found on the person of the deceased Diwakar in light of the deposition of the doctor which were said to be caused by assailant then we find that some injuries are on right part while some are on the left part of the body. Injuries No. 5, 7 and 8 are indicative of the fact that he had been shot while he had made an attempt to save himself. Injuries No. 5, 7 and 8 are indicative of the fact that he had been shot while he had made an attempt to save himself. The presence of blood inside the threshold, striking of the pellets on the wall and the frame of the door and some of the injuries having been caused while the deceased had taken turn to save himself, go to corroborate the prosecution version that Diwakar was shot at not only while he had been under the Tarwaha but also when he tried to run away from the scene of occurrence. The deposition of the prosecution witnesses, if examined, in the light of the statement under Section 313 Cr.P.C. and defence witnesses then it indicates that there were fires from the guns which were in the possession of the appellants Bishambhar and Sheo Kumar. The Investigating Officer had found five empty cells of the cartridges at the spot that indicate that there had been more than five fires. This also goes to support the prosecution version that there had been indiscriminate firing by appellants Bishambhar and Sheo Kumar. The situation could have been avoided and averted if the accused/appellants would have come without guns to the place of occurrence. Thus, the appellants Bishambhar and Sheo Kumar are accountable for causing death of Diwakar and making attempt to cause death of Shridhar, injuries to Natthu Pandey and cattle present there. 99. In light of the above facts, it remains to be considered further whether this right extended to the voluntary causing of death. Answer to this question depends on whether in the circumstances, the accused had an immediate apprehension of death or grievous hurt at the hands of the complainant party. In this connection, it is to be noted that it has not been established by the defence that the informant or any of his companions was carrying any arm. Furthermore, the accused should not have fired more than five rounds in quick succession. They should have after firing one round waited for a second or two to see its effect on the persons attempting to beat their brother. This is only applicable when there is an immediate apprehension of safety and security of brother of the appellants. 100. Mrs. Furthermore, the accused should not have fired more than five rounds in quick succession. They should have after firing one round waited for a second or two to see its effect on the persons attempting to beat their brother. This is only applicable when there is an immediate apprehension of safety and security of brother of the appellants. 100. Mrs. Madhulika Yadav, learned counsel for the State, had submitted that in light of law laid down by Hon’ble the Apex Court in the case of Amerika Rai and others v. State of Bihar, (2011) 4 SCC 677 , right of private defence is not available to aggressor. While relying upon the case of Yogendra Morarji v. The State of Gujarat, AIR 1980 SC 660 , she has submitted that if the accused/appellants are claiming to have caused the death in exercise of right of private defence then the burden of proof lies on the appellants under Section 105 of the Evidence Act. The accused has to show the exercise of right on preponderance of probability on the basis of the circumstances. She has also relied upon the case of Dominic Varkey v. State of Kerala, AIR 1971 SC 1208 , to argue that right of self defence is entirely a question of fact to be decided according to the circumstances of each case. 101. On the other hand, learned counsel for the appellants has relied upon the cases of Wasan Singh v. State of Punjab, 1996 Cr LJ 878 and Bhagwan Swaroop v. State of M.P., (1992) 2 SCC 406 . 102. In both cases relied upon by learned counsel for the appellants, there is only one shot firing and case is distinguishable from the present case because in the instant case, there has been more than five gun shots. 103. Learned counsel for the appellants had urged that the complainant side was aggressor and in exercise of right of private defence, the appellants were compelled to use licensed fire-arms. 104. If we examine the contention of learned counsel for the appellants in light of the present case then first we see that the complainant party had no arms. Right of private defence is available against the body and property whereby the appellants had stated that they had fired to defend his brother Pitambar who had sustained injuries by beating of the complainant party. Right of private defence is available against the body and property whereby the appellants had stated that they had fired to defend his brother Pitambar who had sustained injuries by beating of the complainant party. The injuries on the body of Pitambar have not been proved. If there was any attack or assault on the body of Pitambar then the appellants’ party, Pitambar or any one of them might have informed the police in the form of First Information Report and got medically examined immediately after the incident and in case of failure to lodge the First Information Report, any one of them might have approached to SP/SSP for registration of the case or they had also a remedy to approach the Magistrate for lodging of the First Information Report by moving an application under Section 156(3) Cr.P.C. but there is no such type of report on the part of the appellants regarding the incident. There is also no information directly or indirectly to the SP/SSP and there is also no medical examination regarding injuries sustained in this incident. The injuries found on the body of Pitambar have been fully explained by the prosecution that they were caused during the arrest of Pitambar. Thus, injuries on the part of the body of Pitambar have been satisfactorily explained by the prosecution. On the other hand, not informing the police by Pitambar or any member of his party is fatal to the defence theory. Secondly, even if in hypothesis the case of the defence is taken into account even then only one shot was sufficient to check the complainant side but the appellants had repeatedly fired on the complainant side causing death of one and injuries to more than two persons and cattle present there. Thus, this is not a case within the purview of right of private defence. 105. Finally it has again been argued by learned counsel for the appellants that in the circumstances of the case at the most it was a case of exceeding of right of self defence. 106. Mrs. Madhulika Yadav, learned counsel for the State, responded that murder of Diwakar was committed by the appellants when the members of the complainant side were unarmed and were coming to the house of Natthu for making compromise/settlement. It has again been submitted that appellants had fired more than five shots. 106. Mrs. Madhulika Yadav, learned counsel for the State, responded that murder of Diwakar was committed by the appellants when the members of the complainant side were unarmed and were coming to the house of Natthu for making compromise/settlement. It has again been submitted that appellants had fired more than five shots. Learned trial Court after appreciating the evidence believed the story of the prosecution witnesses so far as the role of appellants is concerned and convicted them. In the circumstances, acquittal of other accused would not make conviction of any finding recorded against the appellants vulnerable. In totality of facts, the Court below was right in convicting the appellants for the offence punishable under Section 302 IPC for causing death of Diwakar and under Section 307 IPC for causing injuries to Shridhar and Natthu Pandey and under Section 426 IPC for causing injuries to cattle. 107. There is no reason to disbelieve the role assigned by the prosecution witnesses which has been well corroborated by the medical evidence. The occurrence has been admitted by the appellants. Even the appellants have taken the plea of right of private defence. The appellants have also admitted the presence of all witnesses like Shridhar, Natthu Pandey and Ram Rakhan. The defence version of the accused/appellants is that the complainant side was aggressor. They have further taken a plea that their brother Pitambar was beaten and therefore in his defence they fired but except the suggestion put to the prosecution witnesses there is no evidence on behalf of the appellants to prove that the complainant side ever attacked the appellants or their party or armed with any deadly weapon with intention to harm their person or property. So the plea of right of private defence set by the appellants is false. There is specific evidence against the appellants that they were armed with guns and are aggressors. 108. We are conscious and mindful that a right of private defence cannot be weighed in a ‘golden scale’ and even in absence of physical injury, in a given case, such right may be upheld by the Court provided there is reasonable apprehension to life or grievous hurt to such person. 108. We are conscious and mindful that a right of private defence cannot be weighed in a ‘golden scale’ and even in absence of physical injury, in a given case, such right may be upheld by the Court provided there is reasonable apprehension to life or grievous hurt to such person. We are equally aware of settled legal position that the onus of proof on the accused as to exercise of right of private defence is not as heavy as on the prosecution to prove guilt of the accused and it is sufficient for him to prove the defence on the touchstone of preponderance of probability. But the trial Court was wholly right in holding that appellants had admitted their presence at the scene of occurrence as also use of fire-arms and pleaded the right of private defence. It was, therefore, for them to place before the Court the circumstances under which they exercised the said right. 109. In the instant case, from the facts and evidence on record, the right of private defence was not at all available to the appellants. The complainant side was unarmed and was also not aggressor. They were the appellants who came with loaded guns and fired shots one after the other which resulted in the death of the deceased and causing injuries to the complainant side and cattle. The guns were loaded by the appellants which fact goes a long way to exhibit their intention to finish the complainant side. Therefore, in our considered view, it is a clear cut case of murder for which appellants deserve to be punished under Section 302 IPC. 110. We have also appreciated the case of the prosecution with regard to charge under Section 307 and 426 IPC. We do not find any discrepancy in the eye version account which finds support from the medical evidence. The appellants shot one after another fire causing not only death of the deceased but injuries to other persons which have been narrated above. Therefore, the conviction of the appellants under Sections 307 and 426 IPC is also justified as decided by the learned trial Court. 111. The appellants shot one after another fire causing not only death of the deceased but injuries to other persons which have been narrated above. Therefore, the conviction of the appellants under Sections 307 and 426 IPC is also justified as decided by the learned trial Court. 111. It may be mentioned here that learned trial Court had convicted the appellants but given benefit of doubt to rest of the accused persons and hence they were ordered to be acquitted but that does not mean that the appellants, who had used their guns, killed the deceased and also attempted to kill other persons present there, are entitled to acquittal or that their conviction and sentence is not inconsonance with law. In the present case, learned trial Court believed the prosecution version and we are satisfied that the learned trial Court was right in relying upon the evidence of the prosecution and in holding that they were not aggressor and the appellants were really aggressor and could not have claimed right of private defence. 112. The State has preferred Criminal Appeal No. 402 of 1983 to the effect that rest of the accused persons, who have been acquitted by the learned trial Court, should also be convicted under Sections 302/307/426 IPC on the ground of common intention and common object with the aid of Section 149 IPC. 113. Before proceeding further, we would like to quote Sections 141 and 149 IPC : “141. 113. Before proceeding further, we would like to quote Sections 141 and 149 IPC : “141. Unlawful assembly.—An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is - First.—To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second.—To resist the execution of any law, or of any legal process; or Third.—To commit any mischief or criminal trespass, or other offence; or Fourth.—By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.—By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.—An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.” “149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” 114. Perusal of aforementioned two sections makes it abundantly clear that whenever an offence, in prosecution of the common object in unlawful assembly, is committed by a member of such unlawful assembly and any member of such unlawful assembly knows that such an offence may be committed or is likely to be committed in prosecution of that common object then every member of such unlawful assembly shall be liable for punishment with the aid of Section 149 Cr.P.C. 115. Hon’ble the Apex Court has considered this legal point in several cases. Hon’ble the Apex Court has considered this legal point in several cases. In the case of State of Haryana v. Shakuntla, (2012) 5 SCC 171 , Hon’ble the Apex Court in paragraphs 34, 35 and 36 has held as under : “34. In the case of Ramchandran and others v. State of Kerala, (2011) 9 SCC 257 , a Bench of this Court dealt, at some length, with the scope and object of Section 149 Indian Penal Code. It was held that Section 149 Indian Penal Code essentially has two ingredients, one, that the offence must be committed by any member of unlawful assembly consisting of five or more members and second, such offence must be committed in prosecution of the common object Under Section 149 Indian Penal Code of that assembly or such as the members of that assembly knew was likely to be committed in prosecution of the common object. Clarifying the expression “common object”, the Bench further said that it is not necessary that there should be a prior concert in the sense of a meeting of minds of the members of the unlawful assembly. The common object may form on the spur of the moment. It is enough if it is then adopted by all the members and is shared by all of them. 35. In the case of Waman (supra) (2011) 7 SCC 295 , the Court also stated that in order to attract Section 149 Indian Penal Code, it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. It must be within the knowledge of other members that the offence is likely to be committed in prosecution of the common object, and if such requirement is satisfied, then they would be held liable Under Section 149 Indian Penal Code. 36. It is not possible to define the constituents or dimensions of an offence Under Section 149 simplicitor with regard to dictionary meaning of the words ‘unlawful assembly’ or ‘assembly’. An “assembly” is a company of persons assembled together in a place, usually for a common purpose. This Court is concerned with an “unlawful assembly”. Wherever five or more persons commit a crime with a common object and intent, then each of them would be liable for commission of such offence, in terms of Sections 141 and 149 Indian Penal Code. This Court is concerned with an “unlawful assembly”. Wherever five or more persons commit a crime with a common object and intent, then each of them would be liable for commission of such offence, in terms of Sections 141 and 149 Indian Penal Code. The ingredients which need to be satisfied have already been spelt out unambiguously by us.” (Underlined by us) 116. Hon’ble the Apex Court in the case of Krishnappa v. State of Karnataka, (2012) 11 SCC 237 , in paragraph 20 has held as under : “It is now well-settled law that the provisions of Section 149 Indian Penal Code will be attracted whenever any offence committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or when the members of that assembly knew that offence is likely to be committed in prosecution of that object, so that every person, who, at the time of committing of that offence is a member, will be also vicariously held liable and guilty of that offence. Section 149 Indian Penal Code creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. This principle ropes in every member of the assembly to be guilty of an offence where that offence is committed by any member of that assembly in prosecution of common object of that assembly, or such members or assembly knew that offence is likely to be committed in prosecution of that object. [Lalji v. State of U.P., (1989) 1 SCC 437 ; Allauddin Mian v. State of Bihar, (1989) 3 SCC 5 , Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392 ]”. 117. Hon’ble the Apex Court in the case of State of Rajasthan v. Shiv Charan, (2013) 12 SCC 76 , in paragraph 19 has held as under : “The pivotal question of applicability of Section 149 Indian Penal Code has its foundation on constructive liability which is the sine qua non for its application. 117. Hon’ble the Apex Court in the case of State of Rajasthan v. Shiv Charan, (2013) 12 SCC 76 , in paragraph 19 has held as under : “The pivotal question of applicability of Section 149 Indian Penal Code has its foundation on constructive liability which is the sine qua non for its application. It contains essentially only two ingredients, namely, (I) offence committed by any member of any unlawful assembly consisting five or more members and; (II) such offence must be committed in prosecution of the common object (Section 141 Indian Penal Code) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. It is not necessary that for common object there should be a prior concert as the common object may be formed on spur of the moment. Common object would mean the purpose or design shared by all members of such assembly and it may be formed at any stage. Even if the offence committed is not in direct prosecution of the common object of the unlawful assembly, it may yet fall under second part of Section 149 Indian Penal Code if it is established that the offence was such, as the members knew, was likely to be committed. For instance, if a body of persons go armed to take forcible possession of the land, it may be presumed that someone is likely to be killed, and all the members of the unlawful assembly must be aware of that likelihood and, thus, each of them can be held guilty of the offence punishable Under Section 149 Indian Penal Code. The Court must keep in mind the distinction between the two parts of Section 149 Indian Penal Code, and, once it is established that unlawful assembly had a common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act, rather they can be convicted for vicarious liability. However, it may be relevant to determine whether the assembly consist of some persons which were merely passive witnesses and had joined the assembly as a matter of ideal curiosity without intending to entertain the common object of the assembly. However, it is only the rule of caution and not the rule of law. However, it may be relevant to determine whether the assembly consist of some persons which were merely passive witnesses and had joined the assembly as a matter of ideal curiosity without intending to entertain the common object of the assembly. However, it is only the rule of caution and not the rule of law. Thus, a mere presence or association with other members alone does not per se be sufficient to hold everyone of them criminally liable for the offence committed by the others unless there is sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act, being a member of unlawful assembly as provided for Under Section 142 Indian Penal Code. It may also not be a case of group rivalry or sudden or free fight or an act of the member of unlawful assembly beyond the common object. (Vide: Baladin and others v. State of U.P., AIR 1956 SC 181 ; Masalti v. State of U.P., AIR 1965 SC 202 ; Chandra Bihari Gautam and others v. State of Bihar, AIR 2002 SC 1836 ; Ramesh and others v. State of Haryana, AIR 2011 SC 169 ; Ramachandran and others Etc. v. State of Kerala, AIR 2011 SC 3581 ; Onkar and another v. State of Uttar Pradesh, (2012) 2 SCC 273 ; Roy Farnandez v. State of Goa and others, AIR 2012 SC 1030 ; and Krishnappa and others v. State of Karnataka, AIR 2012 SC 2946 )”. (Underlined by us) 118. Hon’ble the Apex Court in the case of Gurmail Singh v. State of Punjab and another, (2013) 4 SCC 228 , in paragraph 49 has held as under: “Section 149 of the Indian Penal Code constructively criminalizes all members of an unlawful assembly if a member of that assembly commits an offence in prosecution of a common object of that assembly or if the members of that assembly knew likely to be committed in prosecution of that object. To bring a case within Section 149 of the Indian Penal Code three features must be present. Firstly, there must be in existence an unlawful assembly within the meaning of Section 141 of the Indian Penal Code. This is a mixed question of fact and law, which was overlooked by the Trial Judge. To bring a case within Section 149 of the Indian Penal Code three features must be present. Firstly, there must be in existence an unlawful assembly within the meaning of Section 141 of the Indian Penal Code. This is a mixed question of fact and law, which was overlooked by the Trial Judge. Secondly, an offence must have been committed by a member of the unlawful assembly. Thirdly, the offence committed must be in prosecution of a common object of the unlawful assembly or must be such as the members of the unlawful assembly knew likely to be committed in prosecution of that object. Once these ingredients are satisfied, the provisions of Section 149 of the Indian Penal Code will come into play and cover every member of the unlawful assembly”. (Emphasis added) 119. Learned trial Court while appreciating the evidence of the prosecution witnesses found that the role of rest of the accused persons against whom State has filed appeal was not found for causing any injury on the part of the body of the deceased or any of the injured. Thus, they were given the benefit of doubt. The injuries found on the body of the deceased and injured persons are of gunshot injuries. It is not the version of the prosecution nor it came in the statement of the witnesses that Pitambar, Ram Kumar and Saroj Kumar were armed with guns. There is no deposition of any of the witnesses that these accused persons had caused any injury. Their role is of exhortation and the learned trial Court found that there was no prior consultation for causing injuries or death. Thus, learned trial Court has correctly appreciated the evidence on record and given the benefit of doubt to rest of the accused persons i.e. Pitambar, Ram Kumar and Saroj Kumar. 120. In light of evidence on record, we have no hesitation in holding that the appellants Bishambhar and Sheo Kumar were in fact aggressors and being member of the aggressors’ party, these appellants cannot claim the right of private defence. The right of private defence does not include a right to launch and offence or aggressive. In our opinion, appellants namely Bishambhar and Sheo Kumar in Criminal Appeal No. 670 of 1982 have failed to establish that they were exercising the right of private defence. 121. The right of private defence does not include a right to launch and offence or aggressive. In our opinion, appellants namely Bishambhar and Sheo Kumar in Criminal Appeal No. 670 of 1982 have failed to establish that they were exercising the right of private defence. 121. In view of above, the findings and the judgment recorded by learned trial Court in Sessions Trial No. 422 of 1980 is based on evidence on record and in accordance with settled provisions of law and no interference is required in the judgment and order dated 30.8.1982 passed by learned trial judge. Accordingly, Criminal Appeal No. 670 of 1982 filed by appellants Bishambhar and Sheo Kumar against their conviction and Criminal Appeal No. 402 of 1983 filed by the State against Pitambar, Raj Kumar and Saroj Kumar for convicting them on the ground of common intention and common object, are dismissed. 122. The appellants Bishambhar and Sheo Kumar are in jail. They shall serve out the sentence as inflicted by the learned trial Court. Office is directed to communicate this order forthwith to the Court concerned and also to send back the lower Court record to ensure compliance.