JUDGMENT : This appeal is directed against the judgment of conviction and order of sentence passed by the Fast Track and Additional Sessions Court, Hukkeri, sitting at Gokak in S.C.No.114/2000 dated 06.02.2010. 2. Four accused persons were sent up for trial on the accusation that, on 05.12.1999 at about 01:00 a.m., in front of the house of accused No.2, accused Nos.1 to 4 armed with iron rods abused the complainant and his family members and accused No.3 assaulted the complainant –PW1, PW8, PW9 and PW10 with an iron rod; accused No.1 – Babajan assaulted on the head of the deceased Hajaratma wife of Jamalsab Makandar and on account of the said injury, she died on 07.12.1999. It is further alleged that accused No.2 and accused No.4 who were present at the spot, instigated accused Nos.1 and 3 to commit the above offences. 3. The complaint was lodged on the same day at 12:30 noon. Based on the said complaint, Crime No.66/1999 was registered against all the four accused persons under Sections 324, 325, 114, 504 read with Section 34 of IPC. 4. In respect of the very same incident, accused No.2 also lodged a report before the same Police and Crime No.67/1999 came to be registered against five accused persons including the complainant in Crime No.66/1999 under Sections 143, 147, 148, 323, 324, 504 read with Section 149 of IPC. 5. After investigation, the charge sheet was laid against all the four accused. The accused persons denied the charges and faced trial. 6. In proof of the charges, the prosecution examined as many as 30 witnesses. Amongst them PW1 is the complainant and PW8, PW9 and PW10 are the injured witnesses. The wound certificates relating to the injuries sustained by them during the occurrence were marked as Ex.P-26, Ex.P-25, Ex.P-22 and Ex.P24 respectively. The Medical Officer who conducted the postmortem examination on the deceased was examined as PW20 and the postmortem examination report was marked as Ex.P-31, wherein the cause of death was certified as due to coma as a result of injury to vital organ brain. According to the Medical Officer who examined the deceased soon after the occurrence, he noticed the following injuries on the deceased viz : (i) two abrasions on the left knee, one below other. (ii) cut lacerated wound on the vault of the scalp measuring 3’’ x 1/2’’ x 1/2’’. 7. According to the Medical Officer who examined the deceased soon after the occurrence, he noticed the following injuries on the deceased viz : (i) two abrasions on the left knee, one below other. (ii) cut lacerated wound on the vault of the scalp measuring 3’’ x 1/2’’ x 1/2’’. 7. Considering the evidence of the eyewitnesses as well as the medical evidence and the other supporting material produced by the prosecution, the Trial Court found accused No.1 guilty of the offences punishable under Section 304-I and Section 326 of IPC. Accused No.3 was found guilty of the offence punishable under Section 324 of IPC. Accused No.4 was acquitted of all the charges. 8. Case against accused No.2 stood abated. Accused No.1 was sentenced to undergo simple imprisonment for eight years and a fine of Rs.5,000/- for the offence punishable under Section 304-I of IPC and for the offence punishable under Section 326 of IPC, he was sentenced to undergo simple imprisonment for five years and a fine of Rs.3,500/-. Accused No.3 was sentenced to undergo simple imprisonment for six months for the offence punishable under Section 324 of IPC. 9. Accused Nos.1 and 3 are before this Court questioning the correctness and legality of the conviction recorded against them. 10. I have heard the learned counsel appearing for the appellant Shri Neelendra D. Gunde and the learned HCGP Shri Praveen K. Uppar and have examined the record. 11. PW1 is the complainant and the injured witness. He has deposed in conformity with the prosecution case. The wound certificate relating to this witness is marked as Ex.P-26. PW2 is the panch witness to the spot mahazar – Ex.P-2, whereunder, the stick of guava tree and bangle pieces were seized. PW3 is the panch witness for the inquest mahazar – Ex.P-3. PW4 and PW5 are the panch witnesses to Ex.P-4, Ex.P-5, Ex.P-6, Ex.P-7 and Ex.P-8 – seizure mahazars. PW6 is a panch witness to the mahazar, Ex.P-9 and Ex.P-10. PW7 is a panch witness to the mahazar – Ex.P-9, Ex.P-10, Ex.P-11 and Ex.P-12. All these witnesses have turned hostile to the case of the prosecution. PW8 – Jamalsab Faridsab Makandar, PW9 – Faridsab Jamalsab Makandar and PW10 – Hussainsab Jamalsab Makandar are the injured witnesses. These witnesses have stood by the case of the prosecution and have narrated the overt acts committed by the respective accused. All these witnesses have turned hostile to the case of the prosecution. PW8 – Jamalsab Faridsab Makandar, PW9 – Faridsab Jamalsab Makandar and PW10 – Hussainsab Jamalsab Makandar are the injured witnesses. These witnesses have stood by the case of the prosecution and have narrated the overt acts committed by the respective accused. They have spoken about the injuries suffered at the hands of accused No.1 and accused No.3. PW11, PW12, PW13 and PW14 are the panch witnesses who have also turned hostile to the case of the prosecution. PW15 is the auto driver who took the injured to the Police Station. PW16 is the owner of the trax vehicle who took all the injured to Gokak Government Hospital. PW17 is the scribe of the complaint – Ex.P-1. PW18 is the Doctor who examined the accused persons as well as the injured witnesses and issued the wound certificate as per Ex.P-21 to P-28. PW19 is the Medical Officer who examined the deceased and issued the wound certificate at Ex.P-29. This witness has also examined Faridsab Jamalsab Makandar – PW9 and issued wound certificate at Ex.P-30. PW20 is the Medical Officer who conducted the postmortem examination and issued the postmortem report – Ex.P-31. PW21 is the ASI of Kulgod Police Station who registered the FIR in Crime No.67/1999 on the basis of the report lodged by accused No.2 as per Ex.P-32 and issued the FIR as per Ex.P-33. PW22 is examined as an eyewitness to the incident, but this witness has failed to support the prosecution. PW23 is the brother of the complainant who is a circumstantial witness, who speaks about taking the injured to the hospital soon after the incident. PW24 is the Police Head Constable who took accused Nos.1 and 4 for medical examination. PW25 is the A.S.I. who seized M.O.1 to M.O.14 and forwarded them to FSL, Bengaluru. PW26 is the Police Constable who took the body for postmortem examination. PW27 is the Police Constable who produced the clothes found on the deceased body before the Investigating Officer. PW28 is the A.S.I who speaks about the arrest of the accused persons. According to this witness, the accused persons were arrested on 14.12.1999 and were produced before the Investigating Officer. PW29 is the Investigating Officer who conducted substantial investigation. PW30 is the subsequent Investigating Officer who laid the charge sheet against the accused persons. 12. PW28 is the A.S.I who speaks about the arrest of the accused persons. According to this witness, the accused persons were arrested on 14.12.1999 and were produced before the Investigating Officer. PW29 is the Investigating Officer who conducted substantial investigation. PW30 is the subsequent Investigating Officer who laid the charge sheet against the accused persons. 12. The main contention urged by the learned counsel for the appellants is that the complainant party were the aggressors. The evidence on record indicate that the complainant party came near the house of accused No.2 and picked up the quarrel. The trial Court has also recorded a categorical finding in paragraph 35 of the impugned judgment that the incident took place in front of the house of accused No.2. In respect of the very same incident, a counter case was registered against the complainant and his men in Crime No.67/1999 at the instance of accused No.2. In the said case, the trial Court has recorded a finding that the complainant and his men were the aggressors. This finding in the context of the evidence adduced by the prosecution would clearly indicate that the accused acted in self-defence. The complainant party were consisting of six in number whereas the accused were only four in number. When there was imminent threat to the life of the accused at the hands of the complainant and his men, the accused had no other alternative than to inflict the injury in exercise of right of self-defence. The trial Court has failed to appreciate this fact in proper perspective and therefore, the learned counsel would submit that the accused are entitled to be acquitted solely on this ground. In support of his argument, the learned counsel has relied on the following decisions :- (i) KRISHNA & Another vs. STATE OF UTTAR PRADESH in 2007 Crl. Law Journal 3525; (ii) SHIVAPPA LAXMAN SAVADI vs. THE STATE in 1992 Crl. Law Journal 2845; and (iii) MOTI SINGH vs. STATE OF MAHARASHTRA in 2003 SCC (Cri) 1226. 13. The next line of argument of the learned counsel for the appellants is that the prosecution has shifted the spot of occurrence leading to doubt the very genesis of the occurrence. The charge has been framed against the accused on the basis that the incident took place in front of the house of accused No.2. 13. The next line of argument of the learned counsel for the appellants is that the prosecution has shifted the spot of occurrence leading to doubt the very genesis of the occurrence. The charge has been framed against the accused on the basis that the incident took place in front of the house of accused No.2. But the witnesses examined by the prosecution have consistently deposed that the incident took place in the lands of the complainant. This inconsistency seriously affects the case of the prosecution. The trial Court has brushed aside this inconsistency which has resulted in gross failure of justice. Lastly, the learned counsel would contend that even if the case of the prosecution is admitted as true, the circumstances proved in evidence would, at the most, bring the case under Part II of Section 304 of IPC. In support of this argument, the learned counsel has referred to the decision in KULDEEP SINGH vs. STATE OF HARYANA, 1996 SCC (Cri) 510. 14. Learned HCGP, however, has argued in support of the impugned judgment. He contends that the evidence produced by the prosecution is clear and cogent. The prosecution has rested its case on the direct testimony of the four injured witnesses. Their evidence is consistent and does not suffer from any contradictions. All these witnesses have consistently stated that the accused assaulted the deceased. None of the injured witnesses were armed. Therefore, the plea of self-defence is not available to the accused. The trial Court has appreciated all these facts and circumstances of the case and has properly convicted the accused for the above offences. Even though the facts proved in evidence indicate a clear intention on the part of the accused to cause the death of the deceased, yet, the trial Court has inflicted lesser punishment on the appellants/accused by convicting them for the lesser offence under section 304-I of IPC and therefore, there is no reason to interfere with the impugned judgment and the order of sentence passed by the trial Court. Thus, he seeks for dismissal of the appeal. 15. In view of the contentions urged by the parties, the points that arise for consideration are :- (1) Whether in the facts and circumstances of the case, accused No.1 acted in exercise of self-defence as contended? Thus, he seeks for dismissal of the appeal. 15. In view of the contentions urged by the parties, the points that arise for consideration are :- (1) Whether in the facts and circumstances of the case, accused No.1 acted in exercise of self-defence as contended? (2) Whether the facts and circumstances proved by the prosecution establish the ingredients of the offences punishable under section 304-I of IPC? 16. In order to answer the above points, it is necessary to refer to the evidence of the eyewitnesses examined by the prosecution. Amongst them, PW1 is the complainant and the injured eye-witness. This witness has stated that on 05.12.1999 at around 11.00 a.m. to 11.30 a.m., he along with his father, mother and brothers were working in their garden land. At that time, accused Nos.1 to 4 came near them and abused them saying why they were practicing black magic on them. The complainant and his brothers retorted as to why they were unnecessarily abusing them, at that time, accused No.3–Badashasab Hasimsab Makandar assaulted the complainant namely PW1 on his head with the iron rod. Further, he assaulted his brothers Faridasab Jamalsab Makandar-PW9 and Hussainsab Jamalsab Makandar - PW10 and also his father Jamalsab Faridsab Makandar –PW8 with the same iron rod. Accused No.1 assaulted his mother with the iron rod on her head two or three times. Accused No.2 and accused No.4 were instigating the accused to assault them. At that time, one Mukthujubi Fakirsab Makandhara–PW11 and Yellappa Dundappa Gokavi – PW22 intervened and pacified the quarrel. 17. PW8 is another injured witness. This witness has also deposed in line with the evidence of PW1 stating that when they were engaged in removing the weeds from their wheat field, accused Nos.1 to 4 came to their lands and started abusing them. This witness has also stated that the accused No.3 assaulted him, PW1, PW9 and PW10 and accused No.1 assaulted his wife Hajarathma with the iron rod. 18. The above evidence is corroborated by the brothers of the complainant namely PW9 and PW10. There is absolutely no inconsistency whatsoever in the evidence of this witness either in the manner of the assault or with regard to the involvement of the respective accused. 19. 18. The above evidence is corroborated by the brothers of the complainant namely PW9 and PW10. There is absolutely no inconsistency whatsoever in the evidence of this witness either in the manner of the assault or with regard to the involvement of the respective accused. 19. Though the learned counsel for the appellants has contended that there is variance with regard to the place of occurrence, but on going through the evidence of PW8, it is seen that in his chief-examination itself he has stated that when the accused came to their field and abused them, they went upto the door of the house of the accused to question them as to why they abused them. This evidence, therefore, goes to show that after the accused came to the field of the complainant and abused them, the complainant and his men went to the house of accused No.2 and questioned the accused. The spot mahazar – Ex.P2 also indicates that the incident took place in the courtyard in front of the house of accused No.2. Based on this material, the trial Court has held that the spot of incident is in front of house of accused No.2. Even on re-appreciating the evidence, I do not find any error in the finding recorded by the trial Court in this regard. Therefore, the contention raised by the learned counsel disputing the place of occurrence cannot be accepted. The wound certificate relating to the deceased Ex.P31 issued by Medical Officer – PW20 goes to show that during the occurrence, the deceased had sustained two injuries namely, two abrasions on the left knee and cut lacerated wound on the vault of the scalp. By examining PW20, it is proved that the deceased died due to the injury to the vital organ namely brain. This medical evidence is in conformity with the ocular testimony of PW1, PW8, PW9 and PW10. The evidence regarding the weapon used for the commission of the offence also corroborates the evidence of the above witnesses, thereby establishing the guilt of the accused No.1 in the murder of the deceased. The trial Court has considered all these evidences and has recorded a clear finding that on account of the injury caused by accused No.1 on the head of the deceased, she succumbed to the above injury. The trial Court has considered all these evidences and has recorded a clear finding that on account of the injury caused by accused No.1 on the head of the deceased, she succumbed to the above injury. Even on re-appreciating the evidence, I do not find any reason to differ with the view taken by the trial Court in this regard. Therefore, the said finding, in my considered opinion, deserves to be confirmed. 20. The contention of the accused is that the said injury was inflicted in exercise of right of self-defence and therefore, the case of the appellants fall within the exceptions provided in Section 96 to 106 of IPC. In support of this argument, learned counsel has placed reliance on the decision in the case of KRISHNA & Another vs. STATE OF UTTAR PRADESH reported in 2007 Crl. Law Journal 3525 and has built up an argument that it is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. Based on the proposition of law laid down in the above decision, the learned counsel has emphasized that the accused taking the plea of right of private defence is not necessarily required to call evidence. He can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. The burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution. 21. Further, placing reliance on the proposition of law laid down in SHIVAPPA LAXMAN SAVADI vs. STATE in 1992 Crl. Law Journal 2845, learned counsel would submit that the right of private defence of the body commences as soon as the reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. In the instant case, the complainant and his party came to the house of the accused and attacked the accused and therefore, the accused were well within their right to act in self-defence. 22. There cannot be any disagreement with the proposition of law laid down in the above decisions that the accused are entitled in law to resort to the right of self-defence when faced with imminent threat to their life. “The law does not require a law abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. The instinct of self-preservation is indomitable in a human being and his instinct has been recognized as a lawful defence in sections 96 to 106 of IPC.” The gist of the sections is that the danger to life and property must be so imminent that the accused was left with no other alternative than to strike the assailant even to the extent of causing his death.” In DARSHAN SINGH vs. STATE OF PUNJAB AND ANOTHER, (2010) 2 SCC 333 , the Hon’ble Supreme Court has even gone a step further and in para 28 of the said judgment has held as under : “28. 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.” 23. But the question is, whether in the facts and circumstances of this case, whether the plea of self-defence is available to the appellants so as to contend that the acts committed by them fall within the exceptions provided in sections 96 to 106 of IPC? In this regard, it is relevant to note that the evidence of the eyewitnesses examined by the prosecution goes to show that the accused were the first to go to the lands of the complainant to question them as to why they were practicing black magic on the accused. In this regard, it is relevant to note that the evidence of the eyewitnesses examined by the prosecution goes to show that the accused were the first to go to the lands of the complainant to question them as to why they were practicing black magic on the accused. The further evidence of PW1, PW8, PW9 and PW10, as discussed above, would clearly indicate that after this incident, complainant and his men namely PW8, PW9 and PW10 went near the house of accused No.2 to question them as to why they abused them in their lands and at that time, the accused person assaulted PW1, PW8, PW9 and PW10 and in the process, accused No.1 inflicted the blow on the head of the deceased leading to her death. Admittedly, none of the injured witnesses including the deceased were armed with any weapons. There is not even a stray evidence to show that the complainant’s party possessed any weapons or that they issued any threats to the accused persons wielding the weapons. Except the suggestions made to the prosecution witnesses that the complainant and his men dragged the accused persons out of the house and started assaulting them and at that time, PW9 - Faridsab Jamalsab Makandar tried to squeeze the neck of the accused No.2 - Hasimsab Faridsab Makandar and PW9 Faridsab Jamalsab Makandar bit the index finger of accused No.2 -Hasimsab Faridsab Makandar and when accused No.4 - Ashabi came to the rescue of her husband Hasimsab Faridsab Makandar – accused No.2, PW10 – Hussainsab Jamalsab Makandar assaulted her and accused No.1 – Babajan Hasimsab Makandar with club, none of these suggestions are proved with any acceptable evidence. The accused have consistently suggested to the complainant and injured witnesses that the deceased tried to squeeze the testicles of accused No.1 and to ward her off, accused No.1 had to assault her with the club. These suggestions are consistently denied by the complainant as well as the other witnesses. As a result, there is no evidence whatsoever to show that the deceased had either provoked accused No.1 to use force or that she had put the life of accused No.1 in danger by squeezing his testicles, as argued by the learned defence counsel. The accused have not produced even an iota of evidence to probabalise the defence set up in the course of cross-examination. 24. The accused have not produced even an iota of evidence to probabalise the defence set up in the course of cross-examination. 24. No doubt, as rightly argued by the learned counsel for the accused that the accused are not required to lead any evidence in support of the plea of self-defence, but to take advantage of the evidence of the prosecution witnesses, in support of the said defence, as observed in the above decisions, the accused are required to bring on record the circumstances which necessitated them to use force and aggression against the assailants. Even in the decision relied on by the learned counsel for the accused in the case of Shivappa Laxman Savadi, this court has laid down the pre-conditions which are required to be established by the accused pleading the right of private defence. In the said decision, it is observed that, “In taking out the life of a person on the plea of self-defence, four cardinal conditions must exist : 1. the accused must be free from fault in bringing about the encounter. 2. there must be present an impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity. 3. there must be no safer or reasonable mode of escape by retreat, and 4. there must have been a necessity for taking life”. 25. In the case on hand, the accused have failed to establish any of the above pre-conditions. The evidence on record, as discussed above, does not indicate that either the deceased or the members of her family put the life of accused No.1 in peril so much so he had no other option than to strike the deceased. In the absence of any such evidence, merely on the basis of the suggestions put to the prosecution witnesses, the accused cannot take shelter under the plea of self-defence. On consideration of the entire material on record, I do not find any justifiable reason to accept the contention of the learned counsel for the appellants that accused No.1 inflicted the fatal blow on the head of the deceased in self-defence and therefore, he is liable to be exonerated of the charges levelled against him. The accused has failed to probablise the said defence and therefore, the Courts below were justified in rejecting the plea set up by the accused. The accused has failed to probablise the said defence and therefore, the Courts below were justified in rejecting the plea set up by the accused. I do not find any reason to differ with the view taken by the trial Court in this regard. 26. As already discussed above, the prosecution has convincingly established that the accused No.1 inflicted the injury on the head of the deceased leading to her death. This finding is based on the evidence on record and does not suffer from any error or illegality warranting interference by this Court. But the question is, whether the facts proved by the prosecution make out the offence under section 304-I of IPC or section 304-II of IPC? The trial Court was of the view that the offence proved against the accused No.1 establishes the ingredients of section 304-I of IPC. But, on considering the overall circumstances of this case, in my view, the offence proved against accused No.1 brings the case under Part II of section 304 of IPC. 27. The case of the prosecution is that the deceased and her family members went near the house of accused No.2 to question them as to why they abused them in their field. It is not the case of the prosecution that accused No.1 or the other accused were anticipating the arrival of the deceased and her family members to their house. The circumstances brought out in the evidence indicate that when the complainant’s party and accused were engaged in the verbal altercation, accused No.1 picked up the club and assaulted on the head of the deceased. It was not a premeditated act. There is no material to show that accused No.1 inflicted more than one blow on the head of the deceased. Even though PW.1 has stated that accused No.1 repeatedly assaulted on the head of the deceased two or three times, the other eyewitnesses examined by the prosecution have not corroborated the say of PW1. The medical evidence on record also goes to show that the deceased had sustained a single injury on her scalp. PW18 – the Medical Officer who examined her has deposed that she found a cut lacerated wound on the vault of the scalp measuring 3” x 1/2” x 1/2”. The victim succumbed to the said injury during the treatment three days after the incident. PW18 – the Medical Officer who examined her has deposed that she found a cut lacerated wound on the vault of the scalp measuring 3” x 1/2” x 1/2”. The victim succumbed to the said injury during the treatment three days after the incident. It is also borne on record that during the occurrence, the accused No.1 had also sustained injuries as reflected in Ex.P27. Though these injuries are certified as simple in nature, yet the fact that accused No.1 had also sustained injuries during the occurrence indicate that there was retaliation by the complainant and his men. Under the said circumstances, in the absence of any evidence indicating the intention on the part of accused No.1 to cause the death of the deceased, in my view, the facts proved by the prosecution would lead to the inference that the injury inflicted by the accused No.1 was done with the knowledge that it is likely to cause the death and therefore, in my considered view, the offence proved against accused No.1 falls under the later part of section 304 of IPC. To this extent, the conviction recorded by the learned trial Judge requires to be modified. Accordingly, answering the above points, I proceed to pass the following:- ORDER Appeal is allowed in part. The conviction of appellant No.1/accused No.1 – Shri Babajan Hashimsab Makandar S/o. Hashimsab Makandar for the offence punishable under Section 304-I of IPC is altered to Section 304-II of IPC and he is sentenced to undergo simple imprisonment for five years and a fine of Rs.5,000/- for the said offence. In default to pay the fine amount, accused No.1 shall undergo further imprisonment for one year. The conviction and sentence awarded by the Trial Court against the accused No.1 for the offence under section 326 of IPC is maintained. The substantive sentences of imprisonment shall run concurrently. Accused No.1 is entitled for set off for the period of custody already undergone by him as under trial prisoner in terms of Section 428 of Cr.P.C. The conviction and sentence awarded by the Trial Court against appellant No.2/accused No.3 – Shri Badashahsab Hashimsab Makandar S/o. Hashimsab Makandar for the offence punishable under Section 324 of IPC is confirmed. Accused No.3 is entitled for set off for the period of custody undergone by him as under trial prisoner in terms of Section 428 of Cr.P.C.