JUDGMENT : SANJAY K. AGRAWAL, J. 1. Laxmi Prasad Meshram (A-1), Bireej Bai Meshram (A-2) and Ramkumar Meshram (A-3) were tried for offence punishable under Section 302 of IPC and out of them, Ramkumar Meshram (A-3) was acquitted by the trial Court extending him the benefit of right of private defence and appellants No. 1 and 2 herein were convicted for offence punishable under Section 302/34 of IPC which has been challenged by them by filing this criminal appeal under Section 374(2) of Cr.P.C. questioning the legality, validity and correctness of impugned judgment dated 18/08/2015 passed by learned 1st Additional Sessions Judge, Bilaspur in Sessions Trial No. 133/2014 whereby they have been convicted for offence punishable under Section 302 r/w 34 of IPC and they have been sentenced to undergo life imprisonment with fine of Rs. 200/- and in default of payment of fine, further R.I. for 6 months. 2. Case of the prosecution, in brief, is that on 03/10/2014 at about 11 PM at Village Koskatii within the ambit of Police Station Takhatpur, the appellants herein, in furtherance of their common intention, assaulted Kaushal, cousin of Ramkumar Meshram (A-3), with sharp edged axe and with laathi due to which he suffered greivous injuries and died and, thereby, committed the aforesaid offence. 3. Further case of the prosecution is that on 03/10/2014 at about 11 PM, Ramkumar Meshram (A-3) went to the house of his brother Kaushal Meshram and asked him to make separate khaata parchi and also asked for partition on account of which dispute arose between them and Kaushal Meshran also came out of his house in intoxicated condition and armed with tangi and assaulted Ramkumar Meshram (A-3) and chopped off his left hand from the wrist. Thereafter, all the three accused persons dragged Kaushal Meshram to the courtyard and assaulted him with axe and laathi. Appellant No. 1 Laxmi Prasad (A-1) chopped off his left leg due to which blood started oozing and Kaushal Meshram died on the spot. In the morning, Kumaribai (PW-7), wife of deceased Kaushal Meshram, informed about the incident to the village Sarpanch, Kotwar and other villagers and thereafter, dehati nalishi and dehati merg intimation were registered vide Ex.P/24 and P/23. Merg intimation was registered vide Ex.P/21 and first information report was lodged against the accused persons vide Ex.P/18. In the morning, Kumaribai (PW-7), wife of deceased Kaushal Meshram, informed about the incident to the village Sarpanch, Kotwar and other villagers and thereafter, dehati nalishi and dehati merg intimation were registered vide Ex.P/24 and P/23. Merg intimation was registered vide Ex.P/21 and first information report was lodged against the accused persons vide Ex.P/18. The dead body of Kaushal Meshram was subjected to postmortem which was conducted by Dr. Nikhilesh Kumar Gupta (PW-15) and as per the postmortem report (Ex.P/19), cause of death is said to be hypovolemic and neurogenic shock due to internal and external hemorrhage and nature of death is said to be homicidal. The accused persons were taken into custody and their memorandum statements were recorded vide Ex.P/5, P/6 and P/9 and pursuant thereof, seizure of blood-stained axe was made from appellant No. 1 Laxmi Prasad (A-1) vide Ex.P/7, seizure of laathi was made from appellant No. 2 Bireej Bai (A-2) vide Ex.P/8 and seizure of a bamboo stick was made from co-accused Ramkumar Meshram (A-3) vide Ex.P/10. After due investigation, the accused persons were charge-sheeted for offence punishable under Section 302/34 of IPC which was committed to the Court of Sessions for trial in accordance with law. The accused persons abjured their guilt and entered into defence. 4. In order to bring home the offence, prosecution examined as many as 19 witnesses and brought on record 30 documents. Statements of the accused persons were recorded under Section 313 of Cr.P.C. wherein they denied guilt and they examined 1 witness in their defence and only brought 1 document on record. 5. Learned trial Court, after appreciation of oral and documentary evidence on record, acquitted Ramkumar Meshram (A-3) extending him the benefit of right of private defence though convicted the two appellants herein for offence punishable under Section 302/34 of IPC and sentenced them as aforesaid. 6. Mr. 5. Learned trial Court, after appreciation of oral and documentary evidence on record, acquitted Ramkumar Meshram (A-3) extending him the benefit of right of private defence though convicted the two appellants herein for offence punishable under Section 302/34 of IPC and sentenced them as aforesaid. 6. Mr. Rishi Rahul Soni, learned counsel for the appellants, would submit that the trial Court is absolutely unjustified in convicting the two appellants herein while acquitting coaccused Ramkumar Meshram as appellant No. 1 is the son of Ramkumar Meshram and appellant No. 2 is the second wife of Ramkumar Meshram and appellant No. 1 only assaulted the deceased becaused he threatened to kill his father Ramkumar Meshram as admittedly, deceased was also armed with tangi and he too assaulted Ramkumar Meshram (A-3) as he has also suffered greivous injury and his wrist was chopped off and on his report, counter-case was also registered. As such, appellant No. 1 is justified in causing injuries to the deceased which took the life of the deceased. He would further submit that appellant No. 2 has been falsely implicated in the crime in question as there is no over-tact on her part. At the most, the trial Court could have convicted the present appellants for offence punishable under Section 304 Part I of IPC as Exception 2 to Section 300 of IPC would attract and since the appellants are in jail from 05/10/2014, they be sentenced to the period already undergone by them. 7. Per contra, Mr. Sameer Uraon, learned State counsel, would submit that considering the injuries suffered by the deceased which are grievous in nature and are 12 in number and further considering that appellant No. 1 completely chopped off left leg of the deceased, it can be said that even if right of private defence is available, appellant No. 1 has caused more harm than necessary for the purpose of private defence, therefore, neither the appellants deserve to be acquitted nor they are liable to be convicted for offence punishable under Section 304 Part I of IPC as Exception 2 to Section 300 of IPC is not attracted at all, as such, the instant appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. The first question for consideration would be whether the death of deceased Kaushal Meshram was homicidal in nature? 10. Learned trial Court has answered this question in affirmative and has held that death of deceased Kaushal Meshram is homicidal in nature relying upon the postmortem report (Ex.P/19) which has been proved by Dr. Nikhilesh Kumar Gupta (PW-15) in which cause of death is said to be hypovolemic and neurogenic shock due to internal and external hemorrhage and nature of death is said to be homicidal. Considering the statement of Dr. Nikhilesh Kumar Gupta (PW-15) and further considering the postmortem report (Ex.P/19) and the injuries suffered by the deceased, we are of the considered opinion that the death of deceased Kaushal Meshram has rightly held to be homicidal in nature, more so, when it has not been seriously questioned by learned counsel for the appellants. 11. Now, the next question for consideration would be whether the trial Court is justified in convicting the appellants for offence punishable under Section 302/34 of IPC while acquitting Ramkumar Meshram (A-3) by extending him the benefit of right of private defence or Exception 2 to Section 300 of IPC would be attracted and their conviction can be altered to Section 304 Part I/34 of IPC, as argued by learned counsel for the appellants? 12. Section 96 of the IPC declares that nothing is an offence which is done in exercise of right of private defence. Section 97 provides that every person has right of defence of person as well as property subject to restriction contained in Section 99 of the IPC to defend firstly his own body and the body of any other person against any offence affecting human body. Section 100 describes the contingencies in which right of private defence of the body extends to causing death. Section 100 provides as under: “100. Section 100 describes the contingencies in which right of private defence of the body extends to causing death. Section 100 provides 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. Seventhly - An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.” 13. Section 101 of the IPC provides as to when such right of private defence extends to causing any harm other than death. Section 102 provides that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as long as such apprehension of danger to the body continues. Section 103 provides as to when the right of private defence of the property extends to causing death. Section 103 provides as to when the right of private defence of the property extends to causing death. Thus, in order to exercise right of private defence extending to voluntary causing of death accused must establish that there were circumstances giving rise to reasonable ground for apprehending that either death or the grievous injury would be caused to him, and it is well settled that whether or not a right of private defence of person or property was available to the offender is the very first question to be addressed. 14. In the matter of Darshan Singh vs. State of Punjab, (2010) 2 SCC 333 their Lordships of the Supreme Court reviewed the earlier law on the point and summed up the principles on the issue of right of private defence which states as under: “58. The following principles emerge on scrutiny of the following judgments: (i) Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise 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 not 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 coterminous 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. (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. (ix) The 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.” 15. The Supreme Court in the matter of Raj Singh vs. State of Haryana, (2015) 6 SCC 268 stated about the right of private defence by holding as under: “16.......to claim right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The law of private defence does not require that the person assaulted or facing apprehension of an assault must run away for safety. It entitles him to defend himself and law gives him right of private defence. There is no right of private defence where there is no apprehension of danger. Necessity of averting an impending danger must be present, real or apparent.” 16. In Raj Singh (supra), Hon’ble Mr. Justice T.S. Thakur (as then His Lordship was) in his separate but concurring judgment summarized the principle of right of private defence as under: “32. A conjoint reading of the provisions of Sections 96 to 103 and Exception 2 to Section 300 IPC leaves no manner of doubt that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence, provided that such right is exercised without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. A fortiori in cases where an accused sets up right of private defence, the first and the foremost question that would fall for determination by the court would be whether the accused had the right of private defence in the situation in which death or other harm was caused by him. If the answer to that question is in the negative, Exception 2 to Section 300 IPC would be of no assistance. Exception 2 presupposes that the offender had the right of private defence of person or property but he had exceeded such right by causing death. It is only in case answer to the first question is in the affirmative viz. that the offender had the right of defence of person or property, that the next question viz. whether he had exercised that right in good faith and without premeditation and without any intention of doing more harm than was necessary for the purpose of such defence would arise. Should answer to any one of these questions be in the negative, the offender will not be entitled to the benefit of Exception 2 to Section 300 IPC. 33. Absence of good faith in the exercise of the right of private defence, premeditation for the exercise of such right and acts done with the intention of causing more harm than is necessary for the purpose of such defence would deny to the offender the benefit of Exception 2 to Section 300 IPC. The legal position on the subject is fairly well settled by a long line of decisions of this Court to which copious reference has been made by Banumathi, J. No useful purpose would, therefore, be served by referring to them over again. All that need be said is that whether or not a right of private defence of person or property was available to the offender is the very first question that must be addressed in a case of the present kind while determining the nature of the offence committed by the accused, whether or not a right of private defence was available to an offender is, in turn, a question of fact or at least a mixed question of law and fact to be determined in the facts and circumstances of each individual case that may come up before the court.” 17. The Supreme Court in the matter of Extra Judicial Execution Victim Families Association (EEVFAA) and Another vs. Union of India and Another, AIR 2016 SC 3400 considered the distinction between right of self defence and use of excessive force and held as under: “118. At the outset, a distinction must be drawn between the right of self-defence or private defence and use of excessive force or retaliation. Very simply put, the right of self-defence or private defence is a right that can be exercised to defend oneself but not to retaliate. [Manjeet Singh vs. State of H.P. (2014) 5 SCC 697 ] This view was reiterated but expressed somewhat differently in Rajesh Kumar vs. Dharamvir, (1997) 4 SCC 496 when it was said: “To put it differently, the right is one of defence and not of requital or reprisal. Such being the nature of right, the High Court could not have exonerated the accused persons of the charges levelled against them by bestowing on them the right to retaliate and attack the complainant party. 122. From the above, it is abundantly clear that the right of self-defence or private defence falls in one basket and use of excessive force or retaliatory force falls in another basket. Therefore, while a victim of aggression has a right of private defence or self-defence (recognized by Section 96 to 106 of the IPC) if that victim exceeds the right of private defence or self-defence by using excessive force or retaliatory measures, he then becomes an aggressor and commits a punishable offence. Unfortunately occasionally, use of excessive force or retaliation leads to the death of the original aggressor.....” 18. Very recently, in the matter of Ex-Captain Mahadev vs. Director General, Border Security Force and Others, (2022) 8 SCC 502 their Lordships of the Supreme Court again considered their earlier decisions on the issue of private defence and reiterated the principle as under: “21. To sum up, the right of private defence is necessarily a defensive right which is availabe only when the circumstances so justify it. The circumstances are those that have been elaborated in the IPC. Such a right would be available to the accused when he or his property is faced with a danger and there is little scope of the State machinery coming to his aid. The circumstances are those that have been elaborated in the IPC. Such a right would be available to the accused when he or his property is faced with a danger and there is little scope of the State machinery coming to his aid. At the same time, the courts must keep in mind that the extent of the violence used by the accused for defending himself or his property should be in proportion to the injury apprehended. This is not to say that a step to step analysis of the injury that was apprehended and the violence used is required to be undertaken by the court; nor is it feasible to prescribe specific parameters for determining whether the steps taken by the accused to invoke private self-defence and the extent of force used by him was proper or not. The court's assessment would be guided by several circumstances including the position on the spot at the relevant point in time, the nature of apprehension in the mind of the accused, the kind of situation that the accused was seeking to ward off, the confusion created by the situation that had suddenly cropped up resulting in the knee-jerk reaction of the accused, the nature of the overt acts of the party who had threatened the accused resulting in his resorting to immediate defensive action, etc. The underlying factor should be that such an act of private defence should have been done in good faith and without malice.” 19. At this stage, it would be appropriate to notice the provision contained under Exception 2 to Section 300 of IPC, which states as under: “Exception 2 - Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.” 20. A careful reading of Exception 2 to Section 300 of IPC would show that culpable homicide would not amount to murder if the offender, in exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. As such, in a case where the accused sets up right of private defence, the first and foremost question that would fall for determination by the court would be whether the accused had the right of private defence in the situation in which death or other harm was caused by him. If the answer to that question is in the negative, Exception 2 to Section 300 of IPC would be of no assistance. Exception 2 presupposes that the offender had the right of private defence of person or property but he had exceeded such right by causing death. It is only in case answer to the said question is in the affirmative i.e. the offender had the right of defence of person or property, that the next question i.e. whether he had exercised that right in good faith and without premeditation and without any intention of doing more harm than was necessary for the purpose of such defence would arise. 21. At this stage, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Bhanwar Singh vs. State of M.P. (2008) 16 SCC 657 wherein the principles underlying the doctrine of right to private defence have been neatly summed up, which state as under: “61. 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 on 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 a 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 vs. State of Haryana, (2007) 15 SCC 241 ].” 22. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments (supra), it is quite vivid that in the instant case, as per the statement of Kumaribai (PW-7), wife of deceased Kaushal Meshram, at the night of the incident, Ramkumar Meshram (A-3) went to the house of the deceased and asked him to bring his khaata parchi, thereafter, deceased came out of the house armed with tangi and he was in a state of intoxication and it is further established as per MLC report of Ramkumar Meshram vide Ex.D/2 which has been duly proved by Dr. A.R. Ben (D.W.-1) who has clearly stated that Ramkumar Meshram (A-3) had suffered lacerated wound and his right wrist was cut off and as such, the trial Court has recorded a specific finding in paragraph 25 of the impugned judgment that deceased Kaushal Meshram assaulted Ramkumar Meshram (A-3) with tangi and caused him greivous injury due to which his right hand got cut off from his wrist and thereby, the trial Court extended him the benefit of right of private defence by holding that Ramkumar Meshram (A-3) firstly received injury and his hand was not in a position to cause injury to the deceased and acquitted him, however, the two appellants herein have not been extended the benefit of right of private defence and they have been convicted for the offence in question. 23. It is not in dispute that Ramkumar Meshram (A-3) who has been acquitted by the trial Court firstly asked deceased Kaushal Meshram to come out of his house and bring his khaata parchi and on that account, dispute arose and it has not been stated by Kumaribai (PW-7) that appellant No. 1 was aggressor or he was armed with tangi though pursuant to his memorandum statement, recovery of tangi has been made from him but admittedly, deceased came out in a state of intoxication and that too, he was armed with tangi as stated by Kumaribai (PW-7) in paragraph 4 of her statement and he assaulted Ramkumar Meshram (A-3) and completely decapitated him and chopped off his left hand from the wrist and since his son Laxmi Prasad (A-1) had developed reasonable apprehension in his mind that his father Ramkumar Meshram (A-3) will be killed by deceased Kaushal Meshram, he thereby assaulted the deceased and caused him greivous injury by completely chopping off his left leg. In our considered opinion, the right of private defence of Ramkumar Meshram (A-3) (father of appellant No. 1) commenced as appellant No. 1 had reasonable apprehension of danger of life of his father who had suffered greivous injury by the deceased. There was no premeditation or intention on the part of the appellants to cause the death of deceased. In our considered opinion, the right of private defence of Ramkumar Meshram (A-3) (father of appellant No. 1) commenced as appellant No. 1 had reasonable apprehension of danger of life of his father who had suffered greivous injury by the deceased. There was no premeditation or intention on the part of the appellants to cause the death of deceased. In that view of the matter, we are of the considered opinion that Exception 2 to Section 300 of IPC is squarely attracted and as such, the conviction of the appellants for offence punishable under Section 302/34 of IPC is altered to Section 304 Part I/34 of IPC and they are sentenced to undergo R.I. for 10 years. The fine sentence and default sentence as awarded by the trial Court shall remain intact. 24. Accordingly, this criminal appeal is allowed to the extent indicated herein-above. 25. Let a certified copy of this judgment be sent to the concerned trial Court as well as the jail authorities for necessary information and compliance.