1. The two appellants and one Narvado alias Narbada were tried before the Sessions Judge, Narsinghpur in Sessions Trial No 29 of 1976 for offences under sections 302. 302/34, 307 and 307/34 of the Indian Penal Code. Learned Sessions Judge by his judgment, dated 27-9-76 acquitted the appellants and Narbada of the charges framed against them but convicted appellant Ibrar for an offence under section 304 (Part 1) of the Indian Penal Code and sentenced him to rigorous imprisonment for 10 year. He also convicted appellant Ikrar for an offence under section 324 of the Indian Penal Code and sentenced him to rigorous imprisonment for 2 years. The two convicted appellants have preferred this appeal, challenging their convictions and sentences.

2. Held: Learned Sessions Judge in para 86 of his judgment has observed that even appellant Ikrar had made a grievance to the Magistrate First Class, Narsinghpur when he was first produced on 7-4-76 before him for remand to the effect that he also had received injuries at the time of the incident. This appellant was however not sent for medical examination. From the order sheet it appears that similar complaints were made even by Ibrar and Narbada. The Magistrate, however. observed that the appellant has no such injury. I may observe that the learned Magistrate instead of depending on his own observation should have better got him (lkrar) examined. The fact however remains that in examination by Dr. J.P.N Dube (D. W. 2) on 8-4-76 Ibrar and Narbada had the injuries.

3. According to the prosecution witnesses Suresh had just told the appellants to deposit heir axe. In the situation as it must have developed it can not be accepted that Suresh must have acted in so innocent a manner as is being suggested. In my opinion, the plea as was raised on behalf of the defence that Suresh had grappled with Ikrar for snatching his axe appears to be quite probable. In the context it can safely be assumed that the appellant who did not belong to that village must have started apprehending danger to their lives on the ground that if Suresh snatches the axe he is bound to inflict blows by that axe on them.

4. It is settled that anyone acting under an apprehension of death cannot be expected to judge too nicely the force or impact of his own blow. He is not even bound to modulate his defence step by step according to the attack unless there is reason to believe that the attack is over. The man apprehending danger is bound to pursue person or persons from whom be has such dangers till he reasonably finds himself out of such a danger. The assault in the circumstances, as have been enumerated appears to have assumed a dangerous form. Thus, therefore an allowance had got to be made for the persons who act with the instinct of self-preservation. In the excitement and confusion of the moment which had obviously developed it cannot be expected of the appellants to have weighed in golden scales the means which were, adopted at the spur of the moment. As observed by their Lordships of the Supreme Court in Jai Dev v. State of Punjab, AIR 1963 SC 612, that "there can be no doubt that in judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time."

5. Thus though it is proved beyond doubt that the two appellants inflicted one blow each on the deceased but the prosecution evidence cannot be believed as regards the situation and the manner in which they are said to have been inflicted. These witnesses have obviously suppressed certain part of the story which clearly was intended to defeat appellants claim for their having acted in exercise of right of private defence. As observed by the learned Sessions Judge there had been some delay in the circumstances in lodging the First Information Report. It appears that it was lodged after deliberations. The acts of the appellants are clearly, in my opinion. protected because of their