ORDER : Vivek Agarwal, J. This appeal is filed by the State under Section 378(3) read with Section 378(1) of the Code of Criminal Procedure being aggrieved of the judgment and finding dated 27.03.1996 passed by learned Court of Sessions Judge, East Nimad, Khandwa in S.T. No.113/1995, acquitting the non-appellant from the charges under Section 302 of IPC. 2. Shri Manas Mani Verma, learned Public Prosecutor for the State submits that the trial Court has committed an error in disbelieving the evidence of Vishal (PW-3), Manish (PW-4) and M.L. Hanotiya (PW-12) which confirms the version of the prosecution that the respondent Brajbhushan Singh was an aggressor who committed homicidal death of the deceased Vivek @ Titoo and thus acquittal of the respondent is uncalled for. 3. Shri Manas Mani Verma, learned counsel further submits that as per the prosecution story incident took place on 09.06.1995. Prior to that Brajbhushan Singh was employed in Indian Railways and on his posting came to Khandwa in the year 1992. Wife of Brajbhushan Singh is Uma Chouhan (PW-7). Kirshna Pratap Singh (PW-5) is his son. In the year 1992, it is an admitted fact that family of Brajbhushan Singh stayed in the house of the deceased Vivek @ Titoo on rent. It is also mentioned in the prosecution story that as Vivek @ Titoo was not having any real sister, therefore, he had asked Uma Chouhan, wife of the respondent Brajbhushan Singh, that he is very sad as he is not having any sister, then Uma Chouhan had accepted his proposal to be his sister. After some time, Briabhushan Singh was transferred to Sagar where deceased use to come and meet Uma Chouhan. 4. It is pointed out that this relationship of brother and sister changed into that of a love affair, as a result of which it is alleged that Uma Chouhan established illicit relationship with deceased Vivek @ Titoo. After some time again Brajbhushan Singh was transferred from Sagar to Khandwa and he started living with his family at Khandwa. 5. During his second posting at Khandwa, Brajbhushan Singh had hired house of Gopal (PW-8) which is marked in spot map Ex.P-15. After few days Brajbhushan Singh was transferred to Nasik but he had not taken his family to Nasik, as a result of which Uma Chouhan and Krishna Pratap Singh stayed back at Khandwa. 5. During his second posting at Khandwa, Brajbhushan Singh had hired house of Gopal (PW-8) which is marked in spot map Ex.P-15. After few days Brajbhushan Singh was transferred to Nasik but he had not taken his family to Nasik, as a result of which Uma Chouhan and Krishna Pratap Singh stayed back at Khandwa. Brajbhushan Singh kept visiting Khandwa to meet Uma Chouhan. 6. It has also come on record that after transfer of Brajbhushan Singh to Nasik, Vivek was taking care of Uma Chouhan and Krishna Pratap Singh. 7. After some time, under an apprehension that Uma Chouhan is having illicit relationship with Vivek @ Titoo, Brajbhushan Singh stopped paying household expenses to Uma Chouhan. In the past, a dispute or two had taken place between Brijbhushan Singh and deceased but Uma Chouhan had counseled both of them. 8. Before the fateful day i.e. on 09.06.1995, deceased was trying to impress Uma Chouhan to live with him but Uma Chouhan refused to oblige. 9. As per spot map (Ex.P-15), Brajbhushan Singh was sitting in his house along with his family members when deceased came to their house but he was shooed away. 10. Than, on 09.06.1995 at about 3:00 - 3:30 p.m., Vivek visited Uma. At that time Brajbhushan Singh was visiting the city and in his absence, deceased visited Uma Chouhan. Deceased had taken a glass of water and left the house. At about 5:30 - 6:00, Balram (PW-6) came to Uma and informed that deceased was calling her as he has consumed some tablet. On such intimation being given by Balram, Uma had gone to see deceased in a park towards 'Teen-pulia' but she did not saw deceased in that park. She came back to her house at about 7:30 - 8:00 pm. In the absence of Uma Chouhan, deceased had come to her house in presence of Brajbhushan Singh and his son and had started quarreling with Brajbhushan Singh. 11. As per prosecution story, at that time Brijbhushan Singh was going to answer call of the nature when deceased took him down stairs for a fight and when Brajbhushan Singh asked him as to why he is visiting his house, soon thereafter, Brajbhushan Singh had hit deceased with a 'Phursi', as a result of which he started bleeding and had fallen down. Thereafter Brajbhushan Singh had taken a 'Mogri' from his house and had brutally beaten the deceased, as a result of which he sustained several injuries on the left hand side of the head including fracture. His left eye had gone inside and right eye had come out. His brain was damaged. There were injuries on his right knee, left leg etc., as a result of which deceased succumbed on the spot. 12. Report, Ex.P-3, was lodged by Vishal at Police Station, Kotwali, Khandwa on which case Crime No.224/1995 was registered by Police Station, Kotwali, Khandwa. Accused also traveled to Kotwali Khandwa with 'Mogri' in his hand. On the date of the incident, Muharram was to be observed, on account of which Home Guard personnel were deployed through out the city. Company Commander, M.L. Hanotiya (PW-12) was visiting Kotwali Khandwa, where he had seen the accused, coming with a 'Mogri' in his hand, this 'Mogri' was blood stained. He had asked the accused that where he was going, he said that he is going to surrender as he has committed murder of one Geete. It is clarified that Geete means 'the deceased'. On such information, Hanotiya along with the accused had visited Kotwali Khandwa where Dhurvprasad (PW-10), Head Constable, was present. 'Mogri' was seized from the possession of accused in presence of Hanotiya vide Ex.P-11. by H.S. Yadav (PW-14), Incharge of Kotwali, had come to Kotwali when Lash Panchayatnama (Ex.P-4) was written and, then after preparing spot map, recovery of a knife, 20 Paisa Coin and a stone which was lying close to the head of the dead body with blood stains was recovered vide Ex.P-14. Accused was arrested vide Ex.P-16. There were injuries on the body of the accused for which he was sent for medical examination vide Ex.P-1. His medical examination was conducted by Dr. D.K. Gandhe (PW-1), who found bruise on the left thumb of the hand, there was redness below the left knee and right knee. Examination report is Ex.P1A. 13. Postmortem was conducted by Dr. M.S. Kochkar (PW-2). He found that deceased died because of head injury. His postmortem report is Ex.P2A. 14. While in police custody, Lungi and Vest of the accused were seized vide Ex.P-13A. They were seized and sent to the Kotwali Khandwa vide Ex.P-17, they were subjected to chemical examination for which it was sent vide Ex.P-18 and report received is Ex.P-19. He found that deceased died because of head injury. His postmortem report is Ex.P2A. 14. While in police custody, Lungi and Vest of the accused were seized vide Ex.P-13A. They were seized and sent to the Kotwali Khandwa vide Ex.P-17, they were subjected to chemical examination for which it was sent vide Ex.P-18 and report received is Ex.P-19. It has also come on record that on 11.03.1995, deceased had lodged a report against the accused vide Ex.P12. 15. Shri Vijay Pandey, learned counsel for the respondent submits that accused had exercised his right of private defence. Deceased wanted to stab the accused with a knife and, therefore, in exercise of private defence, if accused had beaten the deceased, then that is not sufficient to bring a case within the ambit of sections 299 and 300 of IPC to be punishable under Section 302 of IPC, therefore, he prays for dismissal of this appeal and maintenance of the order of acquittal. 16. After hearing learned counsel for the parties and going through the evidence available on record, Dr. D.K. Gandhe (PW-1) had examined Brajbhushan Singh on 10.06.1995 and had found that there was an abrasion on his left hand thumb. Bluish mark measuring 1" x 1" below the left knee and another contusion on left shin. He had opined that all the injuries were simple in nature and were caused by hard and blunt object within 24 hours of his examination. 17. Dr. M.S. Kochkar (PW-2) conducted postmortem on the body of the deceased Vivek @ Titoo and found that there were following injuries on his body, namely; crush wound on left hand side of the head causing fracture on the left hand side of the head. Left eye had sunken whereas left eye had come out. Frontal bone of the head had move to the interior portion of the right eye and brain mater was out. There was a scratch mark measuring 3x2 cm on right knee and another scratch mark measuring 3x2 cm on the middle of the left leg. His death occurred within 24 hours of postmortem. These injuries were caused by hard and blunt object. The injuries were homicidal in nature, cause of death was injuries to his head causing damage to the brain matter. 18. His death occurred within 24 hours of postmortem. These injuries were caused by hard and blunt object. The injuries were homicidal in nature, cause of death was injuries to his head causing damage to the brain matter. 18. In cross-examination, this doctor was asked whether injuries sustained by deceased could have been caused if a person falls from a height on the stairs and comes down rolling, then Doctor had opined that such injuries cannot be caused due to fall from a height. He also opined that if a person collides with a hard object when the injuries mentioned in Ex.P-2A cannot be sustained. 19. Vishal (PW-3) is younger brother of deceased Vivek @ Titoo. This witness deposed that on the date of the incident i.e. 09.06.1995, Uma had called the deceased. On receiving her call, deceased had left their home and when he did not return in 7:00 pm, then Vishal (PW-3) and Manish (PW-4) had gone to the house of the accused when upon entering the house of the accused, they found accused to be armed with a 'Mogri' and he was showering abuses, saying that deceased was keeping illicit relationship with his wife after making her his sister. When he had gone inside the gallery, then found Vivek @ Titoo to be dead with crush injuries on head. On this, he had gone to Police Station Kotwali, Khandwa to report the matter. He had lodged report, Ex.P-3, Ex.P-4 and Ex.P-5 are the Lash/Shav Panchnama. 20. In cross-examination, this witness stated that deceased had returned to their house two three days prior to the incident. 20-25 days prior to that he had left their house. He has stated that he cannot say as to whether deceased was a habitual drinker or not. Deceased had informed him about the call from Uma Chouhan, house of the accused is at distance of 2-3 furlong. 21. Manish (PW-4) stated that deceased was son of his maternal aunt. He has corroborated the version put forward by Vishal (PW-3). He has denied a suggestion that he had not identified the accused. 22. Krishna Pratap Singh (PW-5) is son of the accused. He has turned hostile. He has denied his case diary statements. 23. Balram (PW-6) stated that he had seen the deceased in the house of accused. He has corroborated the version put forward by Vishal (PW-3). He has denied a suggestion that he had not identified the accused. 22. Krishna Pratap Singh (PW-5) is son of the accused. He has turned hostile. He has denied his case diary statements. 23. Balram (PW-6) stated that he had seen the deceased in the house of accused. This witness admitted that on the date of the incident deceased visited the house of the accused. He denied his case diary statement, as contained in Ex.P-7, but in cross-examination, he further stated that deceased was under the influence of alcohol, while climbing the stairs he had lost his balance and fallen down, as a result of which his head had collided with 'Phursi' and 'Mogri' which were lying and at that very moment accused had come out to the toilet, as a result of which he sustained injuries. This evidence of Balram (PW-6) is contrary to the evidence of Uma Chouhan. She has denied her case diary statement Ex.P-8, she has denied her love relationship with the deceased. In cross-examination, she has admitted that on the date of the incident Balram and her brother Shyam wanted to go for a movie. Her husband had gone to the toilet, therefore, she asked them to wait till he comes out of toilet, then after taking permission they can go for a movie. In para 12, she has admitted that while her husband i.e. the accused was in toilet somebody had left the deceased at their house. Deceased was under the influence of alcohol and after climbing the stairs he lost his balance and had fallen down causing his death. Her husband came out of the toilet in a panic. Thus. Balram (PW-6) and Uma Chouhan (PW-7) have proved one thing that the deceased had visited their house, he had climbed the stairs and according to them, as he was under the influence of alcohol thus he had fallen down, resulting in the crush injuries on the head causing his death. 24. This fact of death being caused due to fall of deceased from stairs is categorically denied by Dr. M.S. Kochkar (PW-2) in para 11 of his cross-examination. Thus, this hypothesis of fall resulting in death is not made out from the evidence of expert Dr. M.S. Kochkar (PW-2). 25. 24. This fact of death being caused due to fall of deceased from stairs is categorically denied by Dr. M.S. Kochkar (PW-2) in para 11 of his cross-examination. Thus, this hypothesis of fall resulting in death is not made out from the evidence of expert Dr. M.S. Kochkar (PW-2). 25. Eye witnesses of the incident Uma Chouhan, her brother Balram (PW6) have not stated anything that deceased Vivek @ Titoo had attacked the accused as a result of which in self defence Brijbushan had hit back the deceased. Thus, theory of self-defence is not made out. 26. Gopal (PW-8) is hostile. Similarly, Naveen Kumar (PW-9) is also hostile. 27. Dhurvprasad (PW-10) stated that accused visited police station Kotwali Khandwa along with Manoharlal with a 'Mogri' in his hand which was seized by Dhurvprasad vide Ex.P-11. He has stated that accused accompanied Manoharlal and Manoharlal is a Company Commander in Home Guard. 28. M.L. Hanotiya (PW-12) stated that on 09.06.1995 was a day of Muharram. He had gone to Police Station Kotwali Khandwa to leave 50 Home Guard personnel after leaving them he had stayed back at a Pan Shop outside Kotwali to consume Gutkha. After taking Gutkha when he was returning he saw accused with a 'Mogri' in his hand. That 'Mogri' was blood stained. When he asked the accused that where he was going, then he said that he was going to surrender as he committed murder of Geete, then this witness M.L. Hanotiya had taken the accused to the police station and that 'Mogri' was given to Head Constable Dhurvprasad who had seized it vide Ex.P-11. There is no material contradiction in the evidence of this witness, PW-12. 29. Om Prakash (PW-13) is a witness of seizure of Lungi and Baniyan vide Ex.P-13. He is also witness of Naksha Panchayatnama Ex.P-4 and P-5. 30. H.S. Yadav (PW-14) was Incharge, S.H.O., Kotwali Khandwa conducted investigation in Crime No.224/1995, he lodged report at the instance of Vishal (PW-3) as Ex.P-3. He prepared spot map Ex.P-15, he recovered blood stained stone, a knife, coins and a motorcycle vide Ex.P-14 and sent the dead body of Vivek @ Titoo vide Ex.P-2. He had also prepared arrest memo, Ex.P-16. H.S. Yadav (PW-14) was Incharge, S.H.O., Kotwali Khandwa conducted investigation in Crime No.224/1995, he lodged report at the instance of Vishal (PW-3) as Ex.P-3. He prepared spot map Ex.P-15, he recovered blood stained stone, a knife, coins and a motorcycle vide Ex.P-14 and sent the dead body of Vivek @ Titoo vide Ex.P-2. He had also prepared arrest memo, Ex.P-16. PW-14 stated that he had noted contents of Ex.P-6, as were given by prosecution witness, Krishna Pratap Singh (PW-5), so also that of Balram (PW-6) and Uma Chouhan (PW-7), as they had narrated the incident. He had also taken statements Ex.P-9, given by Gopal and Ex.P-10 given by Naveen Kumar in the same form and manner in which it was given. On going through the evidence were recovery of a knife from the spot is not a sufficient circumstance to point out that the attack was made by the accused in self-defence, as suggested by Shri Vijay Pandey, learned counsel for the respondent. 31. Injuries as pointed out by Dr. D.K. Gandhe, reveals that none of the injuries were caused by a knife. It appears that knife recovered from spot was never sent to Dr. D.K. Gandhe for his expert opinion in the form of query report. 32. It has come on record and it will not be out of place to mention that one Dr. J.C. Agrawal (DW-1) was examined in support of plea of the private defence. Dr. J.C. Agrawal (DW-1) stated that he had seen the postmortem report, Ex.P-2A, injuries mentioned in Ex.P-2A can be caused by a hard and blunt object. Such injuries could have been caused if a person strikes a hard and blunt object at high velocity. Injuries could have also been contacted on account of accident but in cross-examination he admitted that the injuries mentioned in Ex.P-2A could have been caused by a 'Mogri' of wooden origin. 33. Supreme Court in the case of Arvind Kumar Alias Nemichand and Others Vs. State of Rajasthan, (2022) 16 SCC 732 has noted as under in regard to private defence. "A private defence need not be set up in a particular manner. Such a private defence need not be confined to the individual accused alone, to be applied to the others. Though the initial onus is on the accused to satisfy the court, the extent of evidence is that of preponderance of probabilities. "A private defence need not be set up in a particular manner. Such a private defence need not be confined to the individual accused alone, to be applied to the others. Though the initial onus is on the accused to satisfy the court, the extent of evidence is that of preponderance of probabilities. Thereafter, the onus shifts. Once a private defence is accepted, there are two questions alone to the answered by the court, namely, the defence coming within the purview of Section 96 to Section 102 IPC and the other acting in excess. The concept of acting in excess has to be seen from the point of view of continued existence of the apprehension of danger. When the apprehension gets effaced with the attack being continued by an accused taking the plea of private defence, exceeding the said right would occur. The weapons used in the process would attain significance depending upon the facts of the case and if the injuries suffered by the accused unless being minor and superficial or suppressed on purpose, the benefit shall enure." 34. Thus, it is evident that firstly accused failed to set up plea of private defence. Secondly, there is no evidence to support the plea of private defence. Plea of the accused his wife, PW-7, and brother-in-law, PW-6, that deceased had fallen down from stairs is negativated by Dr. M.S. Kochkar (PW-2) an expert medical doctor. 35. Supreme Court in Ex-Ct. Mahadev Vs. Director General, Border Security Force and others, (2022) 8 SCC 502 , has held that "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." 36. However, in the present case, when facts are examined then both Uma Chouhan (PW-7) and Balram (PW-6) have stated that deceased had fallen down from stairs, then accused came out of the toilet. However, in the present case, when facts are examined then both Uma Chouhan (PW-7) and Balram (PW-6) have stated that deceased had fallen down from stairs, then accused came out of the toilet. Thus, there are two alternate pleas, taken simultaneously; one will be a kind of plea of alibi that at the time of injury being sustained by the deceased accused was in the toilet and the alternate defence is that in exercising the right of private defence, said incident took place. This alternate plea is though permissible under law but fact of the matter is that vide Ex.P-14, a knife was recovered in a closed condition by the side of the body with blood stains on it. This knife was close and, therefore, it cannot be said that any knife was used by the deceased to attack the accused. 37. Secondly, as per the statement of PW-6 and PW-7 when deceased had fallen down from the stairs at that time accused came out of the toilet in a panic. Therefore, when according to the prosecution witnesses deceased climbed the stairs and had fallen down under the influence of alcohol whereas the accused was in a toilet there was no occasion for the deceased to attacked the accused, therefore, there was no occasion to exercise the right of private defence. In the postmortem report, there is no mention of the fact that deceased was under the influence of alcohol. Therefore, his plea of deceased being under the influence of alcohol too is not sustainable in terms of the postmortem report, Ex.P-2A. 38. Supreme Court in the case of Babu Sahebagouda Rudragoudar and Others Vs. State of Karnataka, (2024) 8 SCC 149 , in para 41, has noted that what is the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused. It is held that this jurisdiction should be exercised within the four corners of the following principles: (i) That the judgment of acquittal suffers from patent perversity; (ii) That the same is based on a misreading/omission to consider material evidence on record; and (iii) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. 39. 39. In the present case, we have seen that there is a sufficient evidence on record to show involvement of the respondent Brajbhushan Singh. It has come on record that he had surrendered with his 'Mogri' in the police station before M.L. Hanotiya (PW-12) and independent person belonging to Home Guard and that seizure could not be disputed by the accused party. Dr. M.S. Kochkar (PW-2) has corroborated the injuries found on the body of the deceased Vivek @ Titoo to have been caused with the seized article 'Mogri'. 'Mogri' was subjected to FSL examination. It is marked as article 'A', 'B' is the stone 'Phursi', 'C' is another portion of stone, 'D' is dry material, 'E' is the knife found on the spot, 'F' is the vest of the accused, 'G' is his Lungi, 'H-1' is his underwear, H-2 is vest of the deceased, H-3 is the Pant of the deceased and H-4 is the Shirt of the deceased, on which blood stains were found. This report is Ex.P-20 40. Therefore, when examined, then it is evident that the judgment of acquittal having failed to take into consideration the FSL report, seizure memo, eye witness account and recovery of body from the house of the accused, Dr. M.S. Kochkar (PW-2) having denied theory propounded by the accused that deceased had sustained injuries on account of fall from the stairs, recovery of 'Mogri' points out that the judgment of acquittal suffers from patent perversity. It is based on misreading/omission to consider material evidence on record and there cannot be any two possible reasonable views on the basis of which benefit of doubt may be extended to the respondent accused and thus in absence of any such material, judgment of acquittal suffers from perversity. 41. Accordingly, we are inclined to reverse the judgment rendered by the trial Court for the circumstances mentioned above. Respondent-Brajbhushan Singh S/o Raghuveer Singh Chouhan is convicted for the offence punishable under Section 302 of the IPC and sentenced to undergo life imprisonment with fine of Rs.5,000/-, in default of payment of fine respondent Brajbhushan Singh shall suffer further R.I. for six months. Detention period, if any, shall be set-off in the sentence of imprisonment. Respondent Brajbhushan Singh be taken into custody and he be sent to jail. 42. In above terms, this appeal is allowed and disposed of.