JUDGMENT : K.S. Jhaveri, J. 1. When the appeal was taken up for hearing, learned counsel Ms. Sadhana Sagar appearing on behalf of appellants, original accused No. 1 & 2, stated that original accused No. 2 passed away during the pendency of this appeal and therefore, appropriate orders regarding abatement of the appeal qua original accused No. 2 may be passed. In view of the above statement, the present appeal stands abated qua appellant No. 2, original accused No. 2, who has passed away. 2. This appeal is directed against the judgment and order passed by the learned Sessions Judge, Narmada at Rajpipla in Sessions Case No. 06 of 2011 dated 30.04.2011 whereby, the appellants, original accused No. 1 & 2, were convicted for the offences punishable u/s. 302 r/w. Section 114 IPC. Over and above, original accused No. 1 was also convicted for the offence u/s. 135 of Bombay Police Act. For conviction u/s. 302 r/w. Section 114 IPC, original accused No. 1 was sentenced to undergo RI for life and fine of Rs. 5000/- and in default, RI for six months; and, for conviction u/s. 135 B.P. Act, he was sentenced to undergo RI for one year and fine of Rs. 2000/- and in default, RI for three months. Both the sentences were ordered to run concurrently and the sentence already undergone by the accused was given set-off. 3. The facts in brief are as under; The complainant herein, Kiranbhai Natwarbhai Tadvi, son of Natwarbhai Kamjibhai Tadvi, is a resident of Village Bhumaliya, Taluka Nandod, District Narmada. Respondent No. 1, original accused No. 1, is the brother of Natwarbhai Kamjibhai Tadvi whereas, respondent No. 2, original accused No. 2, happens to be the paternal Uncle of Natwarbhai Kamjibhai Tadvi. Thus, both the parties are related to each other and were neighbors. 3.1 It is the case of prosecution that Natwarbhai Kamjibhai Tadvi was breeding the suspicion that original accused No. 1 was into an illicit relationship with his wife - Gajilaben. On 21.10.2010 at around 0300 hrs., an altercation took place between Natwarbhai Tadvi and his wife-Gajilaben on the issue of consumption of tobacco, during which time, Natwarbhai Tadvi had even slapped Gajilaben. Being aggrieved by the action of Natwarbhai Tadvi, Gajilaben left the matrimonial house. On this issue, heated words were exchanged between Natwarbhai Tadvi and original accused No. 1. On 21.10.2010 at around 0300 hrs., an altercation took place between Natwarbhai Tadvi and his wife-Gajilaben on the issue of consumption of tobacco, during which time, Natwarbhai Tadvi had even slapped Gajilaben. Being aggrieved by the action of Natwarbhai Tadvi, Gajilaben left the matrimonial house. On this issue, heated words were exchanged between Natwarbhai Tadvi and original accused No. 1. Accused No. 2 joined accused No. 1 in the verbal fight. 3.2 It is the further case of prosecution that during that time original accused No. 1 brought an axe from his house and original accused No. 2 caught hold of Natwarbhai Tadvi. Thereafter, original accused No. 1 inflicted axe blows on the person of Natwarbhai Tadvi on account of which Natwarbhai Tadvi died by the time he was brought to the Hospital. 3.3 A complaint in connection with the aforesaid incident was lodged with Kevadiya Police Station vide I - C.R. No. 14 of 2010. Necessary investigation was done and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the trial Court. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately, trial was initiated. 4. During the trial, the prosecution had examined the following witnesses; Wt. No. Name of Witness Exhibit No. 1 Kanjibhai Bhulabhai Tadvi 9 2 Vinod Ranchhod Tadvi 11 3 Mukeshbhai Narsinhbhia Tadvi 12 4 Aarifbhai Gafurbhai Ghanchi 14 5 Iqbalkhan Ismailkhan Pathan 16 6 Rajendrabhai Ishwarbhai Solanki 18 7 Pareshbhai Laxmanbhai Rana 21 8 Ramanbhai Mathurbhai Vasava 22 9 Kiranbhai Natwarbhai Tadvi 23 10 Dr. Ratankumar Kivandas Ranjan 25 11 Gajilaben Natwarbhai Kamji 32 12 Kamjibhai Punabhai Tadvi 33 13 Dr. Radhikadevi Narayanrao 34 14 Kailashben Kamjibhai Tadvi 39 15 Arunbhai Trambakbhai Soni 40 16 Sanjaykumar Moghjibhai Gameti 43 5. The prosecution had produced and relied upon several documentary evidence, particularly, the panchnama of scene of offence at Exh. 10, inquest panchnama at Exh. 13, complaint at Exh. 24, Post mortem report at Exh. 38, FSL Report at Exh. 47 and Serological Report at Exh. 48. 6. At the end of trial, the Court below recorded further statement of accused persons u/s.313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeal. 7. Ms. 13, complaint at Exh. 24, Post mortem report at Exh. 38, FSL Report at Exh. 47 and Serological Report at Exh. 48. 6. At the end of trial, the Court below recorded further statement of accused persons u/s.313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeal. 7. Ms. Sadhana Sagar, learned counsel appearing for the appellants, submitted that the Court below failed to appreciate the fact that a majority of the witnesses were interested witnesses and not independent witnesses. She submitted that the evidence on record would show that accused No. 1 committed the act in exercise of his right of self-defence and that under no circumstances, it could be concluded as an offence of murder. She drew our attention to the complaint filed by accused No. 1 on the same day in respect of the same incident wherein, he has categorically averred that deceased was the real aggressor. 7.1 Learned counsel Ms. Sagar took us through the evidence of Dr. Ratankumar Kivandas Ranjan (PW-10) before whom accused No. 1 narrated the history of incident. During his medical examination, several injuries were found on the person of accused No. 1, which the prosecution has failed to explain. However, the Court below did not appreciate the aforesaid aspect of the case and straightaway proceeded to convict accused No. 1 for the crime in question. She, therefore, submitted that accused No. 1 deserves to be granted benefit of doubt or his conviction u/s. 302 IPC deserves to be modified to some lesser punishment. 7.2 In support of her submissions, learned counsel Ms. Sagar placed reliance upon the following decisions; "(A) In Lakshmi Singh and others v. State of Bihar reported in AIR 1976 SC 2263 , the Apex Court held that omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. (B) In Smt. Rukma and others v. Jala and others reported in AIR 1997 SC 3907 while appreciating a case on right of self-defence, the Apex Court held that merely because the members belonging to defence party received less injuries and party of deceased received more serious injuries, as a result of which three persons died, the accused cannot be said to be aggressors and therefore, it was quite likely, as stated by accused, that what they did was in exercise of right of private defence." 8. Ms. C.M. Shah, learned APP, submitted that the evidence on record proves that the accused was the real aggressor and it was not that the act was committed in exercise of the right of self-defence. She submitted that the injuries sustained by accused were not such as would require him to be hospitalized for more than one day. Hence, the Court below was justified in convicting the accused for the crime in question. 8.1 In support of her submission, reliance is placed on the decision of Apex Court in the case of Mano Dutt and another v. State of Uttar Pradesh reported in (2012) 4 SCC 79 wherein, it has been held that when a person claims exercise of right of private defence, the onus lies on him to show that there were circumstances and occasions for exercising such a right. In other words, these basic facts must be established by the accused. Just because one circumstance exists amongst the various factors, which appears to favour the person claiming right of self-defence, does not mean that he gets the right to cause the death of the other person. Even the right of self-defence has to be exercised directly in proportion to the extent of aggression. 9. We have heard learned counsel for both the sides and perused the documents on record. The fact that deceased died a homicidal death is established from the Post mortem report (Exh. 38) and the testimony of Dr. Radhikadevi Narayanrao (PW-13), who performed the autopsy. The Post mortem report (Exh. 38) states the cause of death as multiple cut injuries with hemorrhage, shock and cardio-respiratory failure. Hence, the factum of deceased having died a homicidal death is established from the evidence on record. 10. The prosecution placed heavy reliance upon the evidence of complainant-Kiranbhai Natwarbhai Tadvi (PW-9), who is the son of deceased. The Post mortem report (Exh. 38) states the cause of death as multiple cut injuries with hemorrhage, shock and cardio-respiratory failure. Hence, the factum of deceased having died a homicidal death is established from the evidence on record. 10. The prosecution placed heavy reliance upon the evidence of complainant-Kiranbhai Natwarbhai Tadvi (PW-9), who is the son of deceased. From the evidence of this witness, it is established that on the date of incident, accused No. 1 came to their house in the evening hours and thereafter, both accused No. 1 and his deceased-father went to the village on his scooter. After consuming liquor, they both returned and thereafter, accused No. 1 left for his house. During the night hours, an argument took place between the deceased and his wife-Gajilaben on the issue of consumption of tobacco. On hearing the shouts, the complainant-witness woke up. He noticed that his mother-Gajilaben went out of the house being aggrieved by the action of deceased. Therefore, an argument took place between accused No. 1 and deceased, during which time, accused No. 1 inflicted axe blows on the deceased. Accused No. 2, who had also arrived at the spot, inflicted blows on the deceased. Thereafter, the accused fled the scene of offence leaving behind the weapon axe. 11. In his cross-examination, the complainant (PW-9) has emphatically denied the fact that his mother-Gajilaben or any other third party had inflicted the axe blows on his deceased father. Though the complainant is a child witness but, his presence at the scene of offence is natural since he woke up on hearing the shouts. Having gone through the testimony of child witness (PW-9), we find that he has deposed true facts in the natural way. His evidence proves the role and involvement of both the accused in the crime in question. In other words, this witness is an eyewitness to the incident in question. His evidence also gets corroboration from the complaint (Exh. 24). Hence, in our opinion, the Court below was completely justified in relying upon his evidence. 12. The prosecution case also gets support from the evidence of Gajilaben Natwarbhai (PW-11), who is the wife of deceased. This witness never deposed in her evidence or in her police statement that she is an eye-witness to the incident in question. 24). Hence, in our opinion, the Court below was completely justified in relying upon his evidence. 12. The prosecution case also gets support from the evidence of Gajilaben Natwarbhai (PW-11), who is the wife of deceased. This witness never deposed in her evidence or in her police statement that she is an eye-witness to the incident in question. However, the relevant fact that comes out from her evidence is that on the night prior to the date of incident, a quarrel had taken place between deceased and accused No. 1. Her evidence also supports the prosecution story to the effect that muddamal article No. 3 - Axe was used by accused No. 1 for committing the crime in question. This witness has been cross-examined at length by the other side, however, nothing incriminating has come out, as would render her evidence unreliable and non-trustworthy. Thus, the evidence of PW-11 supports the evidence led by complainant (PW-9) on all major aspects. 13. The prosecution case also gets support from the testimony of Kamjibhai Punabhai Tadvi (PW-12), who is the father of deceased. This witness also supports the prosecution case to the extent of the occurrence of a quarrel between accused No. 1 and deceased on the night prior to the date of alleged incident. In other words, this witness supports the say of witness-Gajilaben (PW-11) insofar it relates to the occurrence of a quarrel between accused No. 1 and deceased on the earlier night. 14. Another notable aspect that proves the guilt of original accused No. 1 is the medical evidence on record, which reveals that on the date of alleged incident, i.e. 21.10.2010, original accused No. 1 got himself admitted as indoor patient at Community Health Centre, Tilakwada with the history of alleged assault by deceased. This fact gets corroboration from the complaint (Exh. 49) filed by accused No. 1 in connection with the same incident, which is proved by the testimony of P.S.I. - Sanjaykumar Moghjibhai Gameti (PW-16). Therefore, the presence and role played by original accused No. 1 is established beyond doubt. 15. Considering the totality of facts and evidence on record, we do not find any merit in the submission made by learned counsel Ms. Sagar that the act was committed in exercise of the right of self-defence. Therefore, the presence and role played by original accused No. 1 is established beyond doubt. 15. Considering the totality of facts and evidence on record, we do not find any merit in the submission made by learned counsel Ms. Sagar that the act was committed in exercise of the right of self-defence. This proposition is difficult to believe since it is established from the evidence on record that a quarrel had taken place between original accused No. 1 and deceased on the night prior to the date of incident and that to at the house of deceased. Further, the evidence led by complainant (PW-9) proves that original accused No. 1 was the real aggressor, who was also armed with axe. There is nothing on record to show that deceased was armed with any weaponry. In view of the aforesaid facts, we are unable to accept the submission made on behalf of accused that the act was committed in exercise of the right of self-defence. Hence, the decisions relied upon by learned counsel for the appellants shall not be of any help to them. Consequently, the appeal deserves to be dismissed. 16. For the foregoing reasons, the appeal is dismissed. The impugned judgment and order dated 30.04.2011 passed in Sessions Case No. 06/2011 is confirmed. It is clarified that punishment imposed by the Court below of RI for life for conviction u/s. 302 r/w. Section 114 IPC shall mean RI for Twenty Years (20) and that the accused persons shall not be granted benefit of remission. 16.1 Original accused No. 1 is in jail and therefore, no orders are required to be passed qua him. 16.2 Insofar as original accused No. 2 is concerned, he was released on bail and on the basis of statement made by learned counsel Ms. Sadhana Sagar that original accused No. 2 had passed away during the pendency of appeal, order regarding abatement of appeal qua original accused No. 2 was passed. However, at this stage, learned counsel Ms. Sagar stated that the Court may not record the order of abatement on the basis of her statement for want of any documentary proof regarding the death of original accused No. 2. However, at this stage, learned counsel Ms. Sagar stated that the Court may not record the order of abatement on the basis of her statement for want of any documentary proof regarding the death of original accused No. 2. In view of the above, it is observed that if original accused No. 2 is alive, then he shall surrender to custody on or before 22nd July 2016 failing which appropriate action shall be taken to secure his custody. The appeal stands disposed of accordingly. R & P, if lying here, be sent to the trial Court forthwith.