Bhagchandra vs State of Madhya Pradesh

The present order shall govern disposal of Cr.A. No. 233/1999. (Ram Singh vs. State of M.P.) & Cr.A. No. 288/1999 (Pehlu & Anr. vs.

State of M.P.) as both arise out of the same impugned judgment of conviction.

The present appeals preferred u/s. 374(2) Cr.P.C. assail the judgment dated 15.04.1999 passed in S.T. No. 272/ 1997 rendered by Additional

Sessions Judge, Sheopur Kala whereby the trial Court has convicted the appellants Pehlu, Ram Singh & Ghanshyam for the charge u/s 302 IPC

and sentenced to suffer life imprisonment with fine of Rs. 100/- each with default stipulations.

The three appellants in present two appeals have been convicted for the offence of murder of one Mangilal, who died on 10.07.1997 in an

incident which took place on 06.07.1997. Originally the charge sheet was filed against five accused i.e. three appellants before this Court and

Laddu and Ramswaroop @ Gudkiya. The said two accused have been acquitted by the impugned judgment.

Bare facts giving rise to the present case are on 06.07.1997 Suresh Meena (PW-7) had organized Balaji Ki Rasoi (party). On the said date at

6:00 pm the appellants came to the house of deceased Mangilal and insisted that since the appellants have not been invited to the party, the

deceased Mangi Lal should also not attend the party. The appellant insisted upon attending the party. Enraged by this, five accused armed with

Lathi came and appellant Pehlu assaulted the deceased on head with a lathi, whereas the appellant Ghanshyam gave a lathi blow near the ear of

deceased who fell down unconscious. The acquitted accused Ramswaroop and Laddu also gave lathi blow to the deceased. Raghuveer, Bihari &

Jagdish PW-4, 5 & 7 respectively reached the spot and tried to save the deceased. The matter was reported to the police at 6:40 pm leading to

registration of Crime no. 91/1997 Ex.P-3. Investigating Officer (PW- 10) Ramanand Sharma sent the injured-deceased Mangilal to the Primary

Health Centre, Bahoda where Dr. G.S. Shrivastava (PW-1) conducted medical examination vide M.LC. Ex.P-1 and opined for conduction of X-

Ray by referring injured to District Hospital, Sheopur. At the District Hospital Sheopur, Dr. S.K. Tiwari (PW-3) finding the physical condition of

the injured-deceased to be critical, referred the case to Gwalior. Attempts were made to record dying declaration by issuing memo Ex.P-11 which

could not materialized due to the unconscious state of injured-deceased. During treatment at Gwalior, the injured-deceased died on 10.7.1997 at

around 6:30 pm. Information in that regard led to registration of inquest Ex.P-8. Witnesses were summoned to identify the dead body vide Ex.P-4

and Pachnama of deadbody was prepared vide Ex.P-5 and the dead body was sent for postmortem and report in that regard Ex.P-2 was

prepared. After completing the necessary formalities of investigation like preparation of spot map, making seizure of requisites items from the spot,

recording of statement of witnesses, arresting the accused and recovering the weapon based on the disclosure statement and also sending the

recovered clothes of the deceased and connected items for forensic examination to FSL Sagar, Charge sheet was filed. The case was committed

to the Court of Sessions where the appellants abjured guilt and sought trial. The accused denied committing the offence and raised the plea of false

implication by contending that infact it was deceased Mangilal who had come to the accused and insisted the accused not to accept the invitation of

Suresh (PW-4) and on insistence of the accused to attend the party, it was the deceased who assaulted the accused and therefore, the accused in

exercise of right of private defence, retaliated.

The prosecution in all produced 10 witnesses namely Dr. G.S. Shrivastava (PW-1), Dr. Madhup Kumar (PW-2), Dr. S.K. Tiwari(PW- 3),

Raghuveer (PW-4), Bihari (PW-5), Banwari (PW-6), Jagdish (PW- 07), Mohanlal (PW-8), Bhrijbihari Singh (PW-9), Ramanand Sharma (PW-

10) out of whom PW-4, 5 & 6 are eyewitnesses. PW4 & PW-6 are sons of the deceased whereas PW-5 Bihari is an agricultural servant of

deceased. Prosecution also exhibited documents from Ex.P-1 to Ex.P-30. On the other hand, defence did not produce any ocular evidence but

drew assistance from M.L.C. report of the injuries caused to the appellant Ghanshyam and his mother Sita Bai vide Ex.D/1-C and Ex.D.3-C

which were proved by Dr.G.S. Shrivastava (PW-1).

Learned trial judge after considering the M.L.C. of the injured deceased Ex.D-4 which was proved by PW-4 where three injuries were found

which are lacerated wound on the right temporal region, swelling on the right parietal region and bleeding near the right ear and also an autopsy

report Ex.P-2 which was proved by PW-2 finding three injuries one of the right shoulder, second on the right parietal region and the third on the

parietal bone opining that death was due to cardio respiratory failure resulting from head injury, rendered the finding that the death of the deceased

was homicidal in nature.

Learned counsel for the appellant has primarily raised the issue of non-extension of right of private defence to the appellants despite the same

being available. It is submitted by pointing out to Ex.D.1-C and Ex.D-3-C that the appellant Ghanshyam received three injuries out of which two

are on forearm and cheek whereas the third one was incised injury on right mandible whereas his mother sustained incised wound on the left

temporal region. It is submitted that despite sustenance of these injuries having been proved and the prosecution having failed to explain the same,

learned trial judge wrongly ignored these unexplained injuries caused to the appellant Ghanshyam and his mother for the specious reason of the

said injuries being minor in nature. It is submitted that all the three eyewitnesses were either related or obliged to the deceased. Raghuveer ( PW-4)

and Banwari (PW-6) are the sons of deceased. While Bihari (Pw-5) was the agricultural servant of the deceased and therefore, their statements

should have been seen with great care and caution without being accepted on their very face and these witnesses are not only interested but also

partisan in nature.

7.1. It is submitted that the medical evidence of the deceased having sustained three injuries is belied by deposition of PW-9 Brijbihari Singh, who

is a witness to Panchayatnama of deadbody Ex.P-5 in which PW-9 states that there was only one injury seen by him on the head of the deceased.

7.2. It is further submitted that all the three eyewitnesses PW-4, 5 & 6 have testified in unison that after causing single blow by the appellant and

having seen the deceased falling down on the ground, no further attempt was made by the appellant to repeat the assault which indicates the

absence of intention to kill.

7.3 That the same incident gave rise to cross-case bearing Crime No. 93/1997 where the offence of causing minor injuries with dangerous weapon

along with criminal intimidation was alleged in respect of injured-appellant Ghanshyam and his mother against the deceased which is evident from

the revelation made in para 16,17 & 18 of the testimony of PW-10 Ramanand Sharma. In this background, it is submitted that benefit of cross-

case was not extended to the appellant.

7.4 The factum of appellant Ghanshyam exercising the right of private defence to save himself and his mother, both of whom admittedly sustained

injuries by sharp cutting object on the vital part of the body was not extended to the appellant on the specious ground of injuries sustained by

appellant Ghanshyam and his mother being minor in nature without dwelling upon the aspect that the application of exception codified as right of

private defence does not solely depend upon the nature of injuries sustained by the accused but instead upon the reasonable apprehension of death

or grievous injury to the accused or some other person in whom accused is interested

7.5 It is further submitted by the appellant that death of deceased took place four days after the incident which is an indication that assault alone

may not be the cause of death.

Per Contra, learned counsel for the State has relied upon the MLC of the deceased to contend that three injuries were found on the body of the

deceased each one of which is exclusively attributed by way of ocular evidence to three appellants namely Pehlu, Ghyanshyam and Ram Singh.

More so the postmortem report opines the cause of death as head injury. It is thus submitted that ocular evidence is clearly corroborated by

medical evidence. As regards eyewitnesses being interested and partisan, it is submitted that PW-7 Jagdish, who is an eyewitness is not related to

the deceased and therefore, the defence of the eyewitness being related and partisan falls flat. It is also submitted that merely because eyewitnesses

were related and obliged to the deceased does not by itself rendered their testimony untrustworthy unless their version is unbelievable which is not

the case herein.

8.1. As regards right of private defence, State counsel submits that since there was no reasonable apprehension of grievous injury or death to

appellant Ghanshyam or his mother, the appellant cannot be extended the benefit of right of private defence especially when the injuries caused to

Ghanshyam and his mother were minor in nature.

After hearing learned counsel for the parties and taking into account the ocular and documentary evidence brought on record, this Court is of the

view that appellants deserve to be extended the benefit of right of private defence for the reasons infra :-

9.1 The contents of para 77 of the impugned judgment find that the incident in question occurred in front of the house of appellant Pehlu where the

deceased had gone which destroys the story of prosecution that appellants approached the deceased at his house where the incident took place

and therefore, the story of the prosecution that the appellants were aggressor, gets demolished.

9.2 The contents of para 79 further disclosed that there was hot talks between the deceased and the appellant which led to hurling of abuses on the

question of going to the party held by PW-7. It seems that in the heat of moment, the appellants who were said to be armed with lathi which is not

a dangerous weapon in the Indian rural set up, assaulted the deceased on his head by causing single blow by each of the appellants.

9.3 During this assault the mother of the appellant came to intervene. The appellant Ghanshyam and his mother admittedly sustained injures on the

head which include incised injury by sharp cutting weapon on the temporal region which is vital part of the body. As regards Ghanshyam, he also

received incised injury on the mandible which is lower part of jaw and part of head which is vital part of the body.

9.4. In this scenario where cross-case was also registered against the deceased and appellant Ghanshyam and his mother suffered incised injury on

vital part of their body which was though opined to be minor in nature, gave a reasonable apprehension in the mind of appellant Ghanshyam and is

fellow appellants that if they do not resist or retaliate, then grievous hurt may be caused to them or the mother of Ghanshyam.

9.5. The trial court has rejected the plea of right of private defence on the ground of injuries sustained by appellant Ghanshyam and his mother

being minor in nature and therefore, even if the right of private defence was available to be exercised, the appellants exceeded the same by causing

death of the deceased.

The concept of right of private defence is a part of Chapter-IV of IPC which relates to general exceptions. It would be appropriate to

reproduce the relevant Sec. 96, 97, 99 and 100 of IPC as they are relevant to the issue involved and therefore are reproduced below :-

Section 96. Things done in private defence:

Nothing is an offence which is done in the exercise of the right of private defence.

Section 97. Right of private defence of the body and of property:

Every person has a right, subject to the restrictions contained in Section 99, to defend -

First. - His own body, and the body of any other person, against any offence affecting the human body;

Secondly. - The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the

definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

Section 99. Acts against which there is no right of private defence:

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or

attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt,if done, or

attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly

justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

Extent to which the right may be exercised. - The right of private defence in no case extends to the inflicting of more harm than it is necessary to

inflict for the purpose of defence.

Explanation 1. - A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such,

unless he knows or has reason to believe, that the person doing the act is such public servant.

Explanation 2. - A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public

servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the

authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

Section 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.

Bare perusal of the above statutory provisions makes it crystal clear that to avail the right of private defence, the accused has to show from the

attending facts and circumstances and the evidence adduced on record that there was apprehension of death or grievous hurt to his own body or

to the body of any other person. If the factual scenario attending the present case is tested on the anvil of said law of right of private defence, it is

seen that factum of cross-case is admitted. The factum of appellant Ghanshyam and his mother sustaining incised injury on the vital part of the

body, though minor in nature, is also not denied. The mere fact that injuries were not grievous in nature cannot be a legal standard alone for

disqualifying availing of right of private defence.

11.1 Sita Bai, mother of the appellant Ghanshyam, was inflicted incised wound on her head which is a vital part of the body and so was the

appellant Ghyanshyam. Causing of incised injury on the vital part of the body in the given facts and circumstances where heated arguments and

hurling of abuses was going on, can give rise to reasonable apprehension in the mind of the injured that if no retaliatory action is taken for self

preservation and the assault is allowed to continue then it may led to causing of grievous injury or death of accused Ghanshyam and / or mother.

11.2 It is further relevant to see in the attending facts and circumstances of the case that appellants were armed with lathi which does not fall in the

category of dangerous weapon unless the same is reinforced with some harder substance than bamboo. More so, lathi is possessed by almost all

the persons living in rural setup and therefore being in possession of lathi cannot per se give rise to presumption of the wielder being belligerent and

ready for assault. Pertinently, there was no sharp cutting weapon in the hand of the accused / appellants whereas the injuries sustained by appellant

Ghanshyam and is mother were caused by sharp cutting object which apparently were more dangerous than lathi.

The Apex Court in the cases referred below succinctly elaborated the concept and contour of reasonable apprehension for exercise of right of

private defence, some of these decisions are reproduced below :-

(i) Periasami and Anr Vs. Staet of Tamil Nadu reported in (1996) 6 SCC 457 :-

In Pratap Vs. the State of Uttar Pradesh reported in 1976 (2) SCC 798 a three judges bench was considering a case where the

accused failed to adduce evidence to establish the under Section 95 IPC. It was held that even if the accused failed to establish his

plea, in a case where prosecution has not established its case beyond reasonable doubt against the appellant on an essential ingredient

of the offence of murder, the plea of right of private defence cannot reasonably be ruled out from prosecution evidence the benefit of

it must go to the accused. In Yogendra Morarji Vs. The State of Gujrat : (AIR 1980 SC 660 ) another bench of three judges of this

Court deal with section 105 of the Evidence Act and observed thus:

Nothwithstanding the failure of the accused to establish positively the existence of circumstances which would bring his case within

an Exception, the circumstances proved by him may raise a reasonable doubt with regard to one or more of the necessary ingredients

of the offence itself with which the accused stands charged. Thus, there may be cases where, despite the failure of the accused to

discharge his burden under section 105 the material brought on the record may, in the totality of the facts and circumstances of the

case, be enough to induce in the mind of the Court a reasonable doubt with regard to the mens tea requisite for an offence under

section 299 of the Code"".

(ii) Mehar Singh Vs. State of Pubjab reported in 1997 SCC (Cri) 752:-

From a careful scrutiny of the evidence on the record we find that the evidence of Karnail Singh, PW-2 and Balbir Sigh, PW-3 is

not only an exaggerated version of the case, as opined by the trial court, but a definite attempt has been made by them to conceal the

manner in which the occurrence took place. The prosecution has concealed the origin of the fight and given a twist to the entire

occurrence with the assistance of Harnam Singh ASI. The trial court overlooked that the appellant had received two incised injures at

the hands of Karnail Singh, PW-2, and looking to the nature and seat of those injuries, the defence version that the appellant caused

only one injury to PW-2 on his head in exercise of the right of self-defence gets greatly probabilised. We are not impressed by the

opinion of the trial court to the effect that the appellant was the aggressor only on the basis of the seat of injury on Karnail Singh,

PW-2. Keeping in view the tainted nature of the investigation and the falsehood uttered by PW-2 and PW-3 regarding the second

injury on PW-2, we are of the opinion that the defence version which we have found to be otherwise probable, deserves acceptance

and we, accordingly, hold that the appellant caused the single injury to Karnail Singh, PW-2 in the exercise of the right of self-defence

after he had received two injuries. The appellant cannot, therefore, be said to have committed any offence. The conviction of the

appellant, therefore, for the offence under Section 326 IPC cannot be sustained. This appeal succeeds and is allowed. The conviction

and sentence of the appellant is hereby set aside. The appellant is on bail. His bail bonds shall stand discharged.

(iii) Victor @ Kaloo Vs. State reported in 1966 JLJ 577 (CN 115) :-

Then again, the application of the Exception aforesaid presupposes that there must exist a right of private defence, for, unless

such a right is there, it cannot be exceeded. Consequently, placed as the appellant-accused was either in his place of concealment or

outside in the lane, he should have been in some immediate and imminent danger, howsoever slight, of receiving bodily injury, so that

he could have a reasonable apprehension of some hurt to himself to give him a right of inflicting injury on others in defence of his

person. No doubt, it is not the actual danger but the danger as it appeared to the appellant-accused which must be the criterion. But

the apprehension of danger must be the apprehension of a reasonable man. Consequently, a belief by the appellant howsoever

sincere and honest, that this life was in danger or that he may be grievously hurt will give him no protection, if, in fact, the belief was

not reasonable. What is more, there must be material on record from which a Court can reasonable infer that there was basis for such

a reasonable belief. It is for this reason that any contention on behalf of the accused that he misapprehended the hostile intentions of

others or took an unduly exaggerated or panicky view of the situation or acted under fright or undue excitement, when there was no

reasonable ground for the belief that that a reasonable person possessed of ordinary firmness or reason would have so believed

cannot be accepted. This is neither the case of person at bay whose retreat is barred and who has therefore no other recourse open

to him except to defend himself by inflicting injuries on his adversary, nor a case of a person whose house, which is proverbially his

castle, is being stormed and who therefore stands his ground and defends it and his person with all the resources at his command. In

such cases, the law does not expect him to run away from the danger but to stand his ground and defend his person and property.

But, in the instant case, as long as the appellant accused remained in his place of concealment, he could not have any reasonable

apprehension of even simple hurt, let alone the apprehension of death or grievous hurt. It was his duty to avoid the danger to the limits

of his personal safety and not to have sought the danger by practically inviting it by coming out in the open. Again, even if he did come

out in the erroneous belief that the danger was over, he had no right to inflict fatal injuries to the deceased in the bonafide exericise of

a right of private defence, unless he established that on coming out he was again faced with an immediate and imminent danger to his

life or limb. The appellant accused does not say so, and the learned counsel has not placed before us any material from which such

danger could be reasonably inferred, and in the absence of any such material, section 105 of the Evidence Act prohibits us from

presuming the exercise of such material.

It is now well settled that without specifically pleading to have acted in exercise of right of self defence, and even without himself

examining any witness, an accused can avail of that plea by reference to the circumstances appearing in the prosecution evidence

itself; that in order that the prosecution should succeed, the prosecution evidence must be such as conclusively negative the plea of

self defence. For, even if such a plea is not positively established but one is left in doubt the accused is entitled to be acquitted on the

ground that the prosecution has not proved its case beyond reasonable doubt; that it is the duty of the prosecution not to suppress

any facts favourable to the accused and not to indulge in embellishments and additions with a view to depriving the accused of his

right of private defence and the paramount duty of the Court is to shift and scan the evidence carefully with a view to finding out the

circumstances under which the accused had to use the weapon. In such a case, the evidence of witnesses who seem to have made

decided attempts to give a distorted version of the incident with a view to making out that the accused was in the aggressive, cannot

be safely acted upon by the Court; that it is also not necessary nor does the law require that the accused should wait till he receives a

grievous injury for the purpose of exercising his right of private defence; that it is also not necessary for the accused to retreat, as is

required in the English law. He is entitled to stay his ground and face his assailant; that the Courts have to take a practical view of the

circumstances from the stand point of the accused and not from that of a cool bystander; that the Courts have to make all reasonable

allowances in favour of a person, who in fear of his life or limb gives harder blows than appear necessary to a calm spectator

watching or called upon to consider it while being not only at a safe distance but also in an atmosphere quite different from the one in

which the accused was found; that once the situation has assumed a dangerous form the accused called upon to face it is not

expected to maintain sangfroid and remain composed and unperturbed; that a ""detached reflection cannot be demanded in the

presence of an uplifted knife"" to use the words of Holmes, J. (Brown Vs. United States) (1921) 256 US 835, that, to use further his

words, ""if the last shot was intentional, and may seem to have been unnecessarily when considered in cold blood, the defendant

would not necessarily lose his immunity if it followed close upon the others, while the heat of the conflict was on, and if the defendant

believed that he was fighting for his life"". Brown Vs. United States (1).

(iv )Lakshmi Singh and Ors. Vs. State of Bihar reported in (1976) 4 SCC 394 :-

This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the

evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court

in the pre-sent case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the

recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab Criminal Appeal No. 266 of 1971 decided on

April 25, 1975 : which was also a murder case, this Court, while following an earlier case, observed as follows:

In State of Gujarat v. Bai Fatima Criminal Appeal No 67 of 1971 decided on March 19, 1975 : ) one of us (Untwalia, J., speaking

for the Court, observed as follows:

In a situation like this when the prosecution fails to explain the in juries on the person of an accused, depending on the facts of each

case, any of the three results may follow:

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been

proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all.

The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the

instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private

defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful

and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.

It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence

or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) That the prosecution has sup- pressed the genesis and the origin of the occurrence and has thus not presented the true version:

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point

and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to

throw doubt on the prosecution case.

The 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 prosedition one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious

injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4

and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the

accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or

infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima

Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : Reported in there may be cases where the non-explanation of the

injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries

sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so

probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the

injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious

infirmity in the prosecution case on unconvincing premises.

In view of the above analysis, this Court is in disagreement with the finding of the learned trial judge in respect of right of private defence. This

Court holds that in the attending facts and circumstances and evidence adduced on record the existence of reasonable apprehension in the mind of

appellant of being caused grievous hurt if not death was established on the anvil of preponderance of probabilities which impelled the appellant to

take retaliatory action in self-preservation by causing single blow to the deceased with lathi by each of the appellants. Thus the right of private

defence recognized as one of the general exceptions under Chapter IV of IPC ought to have been invoked in favour of the appellants.

On the basis of above analysis, this Court is of the considered view that since the assault which led to fatal injury to the deceased was caused

in exercise of right of private defence by the appellant, the appellants are protected by the general exception contained in Sec. 96 of IPC and thus

are immune from punishment for offence of murder alleged against them.

Consequently, the judgment of conviction and sentence dated 15.04.1999 passed in S.T. No. 272/ 1997 rendered by Additional Sessions

Judge, Sheopur Kala is set aside and the appellants are directed to be released forthwith if they are not required in any other case.