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PETITIONER: DWARKA PRASAD

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT23/02/1993

BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1993 SCR  (2)  70        1993 SCC  Supl.  (3) 141  JT 1993 (2)   168        1993 SCALE  (1)675

ACT: Penal  Code,  1860 : Sections 302,  307,  34-Charged  under- Appreciation  of  evidence-Prosecution case-Free  fight  not proved-Injuries   found  on  the  person  of  the   accused- Significance   of-Delay  in  lodging  FIR-Effect   of-Motive disclosed by prosecution-Acceptability of-Accused’s  version Probability of. Penal Code, 1860 : Section 97 read with Section 105, Evidence Act 1872 : Right of private defence-When available- Accused  causing  injury with a Ballam in the chest  of  the victim  resulting  death-"Whether right of  private  defence available. Code  of  Criminal Procedure, 1974: Section  313   Statement made by accused under-Duty of Court while using.

HEADNOTE: The  prosecution’s case was that on the date of  occurrence, the pw.2 and the deceased were returning after answering the call  of nature at about 6 P.M. At that time  the  appellant along with co-accused came there.  Seeing the p.w.2 and  the deceased  the accused came rushed towards them with  knives. Appellant  chased the deceased and gave a knife blow on  his chest.  The P.W.2 received a knife blow from the co-accused. Thereafter  the accused fled away.  The victim died  on  the way  while he was being taken to Debai.  The P.W. 2.  lodged the  first  information report on the same  night  at  about 11.30 P.M. The  motive for the occurrence was that about 10 or 12  days before  the  date of occurrence, the  appellant  abused  the P.W.2  and the deceased.  They gave two/three slaps  to  the appellant The  appellant-accused’s  case was that for  last  two  days prior to the date of occurrence the crop of his grand-father was being damaged.  Therefore, he was keeping a watch on the field.  During night the P.W.2 and the deceased came to  the field.   Seeing  them, the appellant raised an  alarm  Chor- Chor.   They started running.  The appellant chased them  to catch 71 them.   But  they  turned back and  started  assaulting  the appellant with lathies.  The appellant attacked them with  a ’ballam’  to save his life.  The injuries on the  person  of

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the appellant were examined, in the next morning.  He  filed an  application  before the Superintendent of Police  and  a case  was registered at about 10.25 A.M. on the next day  of the date of occurrence on the basis of appellant’s petition. The trial Court acquitted the appellant of the charges under sections 302 and 307 read with section 34 of the penal Code. The  State’s  appeal was allowed by the High Court  and  the present  appellant  was convicted under section 302  of  the Penal   Code   and  was  sentenced   to   undergo   rigorous imprisonment for life. Present  appeal  was filed by the accused against  the  High Court’s judgment. The  State  contended that if the version of  appellant  was accepted,  it would amount to a case of free  fight  between the prosecution party and the accused, both being armed  and that  in a case of free right no party could claim right  of private defence. Partly allowing the appeal, this court, HELD:     1.01. A free right is that when both sides mean to right a pitched battle.  The question of who attacks and who defends in such a fight is wholly immaterial and depends  on the  tactics adopted by the rival party.  In such  cases  of mutual  rights,  both  sides  can  be  convicted  for  their individual acts, [76E] 1.02.     So   far  the  facts  of  the  present  case   are concerned,  if the version disclosed by the accused  can  be held  to  be a probable version of the  occurrence  then  it cannot be held to be a case of free fight. [76G] 1.03.     In  any particular case the injuries found on  the person  of  the accused being serious in nature  may  assume importance   in  respect  of  the  genesis  and  manner   of occurrence  alleged by the prosecution.  In other  case  the injuries being superficial, by themselves may not affect the prosecution  case; the version disclosed by the  prosecution having  been  proved  by  witnesses  who  are   independent, reliable and trustworthy, supported by the circumstances  of that particular case, including the promptness with 72 which  the first information report was lodged on behalf  of the  prosecution.  But if the first information  report  has not  been  lodged  promptly  and  there  is  no   reasonable explanation  for the delay-, the witnesses who  support  the version  of the prosecution are not only inimical  but  even their  evidence  is not consistent  with  the  circumstances found  during  the  course of investigation,  then  in  that situation,  injuries on the person of the accused which  are not very serious in nature assume importance for the purpose of  consideration as to whether the defence of the right  of private  defence pleaded by the accused should be  accepted. [80B-D] 1.04.  So  far the present case is  concerned  the  injuries found  on  the person of the appellant are  not  serious  in nature  and  merely  on  the  ground  that  prosecution  has suppressed those injuries, the appellant is not entitled  to the  acquittal.  But those injuries can certainly  be  taken into consideration while judging whether the defence version of the accused is probable. [80H] 1.05.     The motive disclosed on behalf of the  prosecution for the occurrence is not acceptable.  Even if it is assumed that because of some altercation 10/12 days before the  date of occurrence, the appellant had decided to cause the murder of  the deceased, then more injuries would have been  caused on the person of the victim by the appellant. [81B] 1.06.     The delay in lodging the first information  report by  PW-2  has  not at all been  explained.   The  occurrence

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according  to  prosecution took place at 6.00  P.M.  in  the evening.  The victim while being taken to Debai which is  at a distance of five kilometers expired on the way.  Then  why first information report was lodged at 11.30 P.M., there  is no  explanation.  On the other hand the appellant’s case  is that  the occurrence did not take place at 6.00 P.M. in  the evening but at later part in the night.  That appears to  be more probable. [81C] 1.07.     The  injury found on the chest of the deceased  is inconsistent with the prosecution case that appellant chased the  deceased  and  then gave a blow by knife.   But  it  is consistent  with the defence version that soon the  deceased and PW.2 returned and started assaulting the appellant  when the  appellant  gave  a  ballam blow in  the  chest  of  the deceased.  If the appellant had given the ballam blow  while chasing  the  deceased, in that event it would  have  caused injury on the back of the deceased. [81F] 73 1.08.     Taking   all   facts   and   circumstances    into consideration  the version of the accused of the  occurrence appears to be probable and acceptable. [82G] Gajanandv.State of Uttar Pradesh, AIR1954SC 695;Kanbi  Nanji Virji v.  State  of Gujarat AIR 1970 SC 219; Puran v.  State of  Rajasthan, AIR 1976 SC 912; Vishvas Aba Kurane v.  State of Maharashtra, AIR 1978 SC 414; The State of Gujarat v. Bai Fatima, AIR 1975 SC 1478; Lakshman Singh v. State of  Bihar, AIR  1976 SC 2263; Bhaba Nanda Sarma v. The State of  Assam, AIR 1977 SC 2252; Hare Krishna Singh v. State of Bihar,  AIR 1988  SC  863 and State of Rajasthan v. Madho, AIR  1991  SC 1065, referred to. [76F] 2.01.     Once it is established by the prosecution that the occurrence in question is     result  of a free  fight  then normally no right of private defence is available to  either party and they will be guilty of their respective acts. [76G] 2.02.     Accused pleading the right of private defence need not  prove it beyond reasonable doubt.  It is enough  if  on the  basis  of  the  circumstances  of  a  particular  case, applying  the  test of preponderance  or  probabilities  the version becomes acceptable. [80E] 2.03.     There  are  no two parallel  versions  before  the Court, one on behalf of the prosecution and other on  behalf of  the  accused and the Court is required to choose  as  to which  of  the two versions is the correct  version  of  the occurrence.  The burden placed on the accused is  discharged no  sooner he creates a doubt in the mind of the  Court  and satisfies the Court that the version disclosed by him in the facts  and  circumstances of that particular  case  is  more probable. [80E-F] 2.04.     If  the  right of private  defence  is  available. While judging the question whether the accused has  exceeded such  right, should not be weighed in a golden  scale.   But the  right  of  private  defence  does  not  extend  to  the infliction of more harm than is necessary for the purpose of defence.   When  the  appellant caused  the  injury  with  a ballani (spear) in the chest of the victim which resulted in his  death,  certainly  he exceeded  his  right  of  private defence. [82H, 83A] Partap  v. )le State of U.P., [1975] 2 SCC 798; Mohan  Singh v.  State  of Punjab, AIR 1975 SC 2161;  Seniyal  Udayar  v. State  of  Tamil Nadu, AIR 1987 SC 1289;  Vijayee  Singh  v. State of U.P., [1990] 3 SCC 190 and Buta 74 Singh  v.  State of Punjab, [1991] 2 SCC 612,  referred  to. [80G]

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3.   An  admission has to be taken as a whole.  It  was  not open  to  the  High  Court to reject one  part  so  far  the aggression  and  assault  by  the  prosecution  party  which according  to  the appellant preceded giving of  the  ballam blow,  and  to accept only the later part of  the  statement that  appellant  gave  a ballam blow,  for  the  purpose  of convicting the appellant [82D]. Hanumant  Govind Nargundkar v. State of Madhya Pradesh,  AIR 1952 SC 343, referred to. [82E]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 827  of 1981. From  the Judgment and Order dated 22.7.81 of the  Allahabad High Court in Government Appeal No. 1861 of 1975. P.K.  Dey, Rakesh Goswami and Ms.Rani Jethmalani (N.P.)  for the Appellant. R.C. Verma for the Respondent. The Judgment of the Court was delivered by N.P.  SINGH, J. The appellant was acquitted of  the  charges under sections 302 and 307 read with section 34 of the Penal Code by the Trial Court.  On appeal being filed on behalf of the  State  of  Uttar Pradesh he has  been  convicted  under section  302  of  the  Penal Code  by  the  High  Court  and sentenced to undergo rigorous imprisonment for life. It is the case of the prosecution that on 25.2.1974 at about 6.00 P.M. Chandrapal (PW-2) along with Jagdish  (hereinafter referred   to  as  "the  deceased")  were  returning   after answering the call of nature.  It is said that at that  time this  appellant along with co-accussed Ramesh came from  the side  of  the  village; seeing  Chandrapal  (PW-2)  and  the deceased, the appellant and Ramesh rushed towards them  with knives.  After some chase the appellant gave a knife blow on the chest of the victim.  The co-accused Ramesh gave a knife blow  to  Chandrapal (PW-2).  Thereafter the  appellant  and Ramesh  fled away.  The victim while being taken  to  Debai, died  on  the  way,  Chandrapal  (PW-2)  lodged  the   first information  report  at the Police Station  Debai  at  about 11.30 P.M. the same night. 75 The motive of the occurrence, according to the  prosecution, is that about 10 or 12 days before the date of the aforesaid occurrence,  there was some altercation  between  Chandrapal (PW-2)  and the deceased on the one side and this  appellant on the other, in which the appellant is said to have  abused them.   Chandrapal  (P.W-2)  and  the  deceased  had   given two/three slaps to the appellant. The  defence of the appellant was that the  prosecution  has suppressed the real manner of occurrence.  According to  the appellant,.  for  last  two  days  prior  to  the  date   of occurrence the crop of his grand-father Sohan Lal was  being damaged.  Because of that he was keeping a watch on the said field.  During night Chandrapal (PW-2) and the deceased came to  the  field.  The appellant raised  an  alarm  chor-chor. Thereafter  Chandrapal  (PW-2)  and  the  deceased   started running.  The appellant chased them to catch them.  But soon they  turned back and started assaulting the appellant  with lathies.   To  save his life the appellant attacked  with  a ’ballam’  (spear).   The  injuries  on  the  person  of  the appellant were examined the next morning.  He also filed  an application before the Superintendent of Police, giving  his version of the occurrence in which he admitted that when  he was  being assaulted by Chandrapal (PW-2) and the  deceased,

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he  bad used a ballam.  A case was registered by the  Police at  about  10.25  A.M. on 26.2.1974, on  the  basis  of  the petition filed on behalf of the appellant. The injuries on the person of the appellant were examined by Dr. R.P. Rastogi at the District Hospital, Bullandshahar, on 26.2.1974. He found the following injuries on his person:-               "(1)  Faint  contusion 2 cm x 1/2 cm  back  of               left shoulder upper part.               (2)   Faint  contusion 10 cm x 2 cm  on  outer               side left back at the lower angle of scapula.               (3)   Faint contusion 4 1/2 cm x 1 cm on  back               of upper part 1/3rd left forearm.               (4)   Faint contusion 12 cm x 1 cm on the back               and inner aspect left forearm upper 1/3rd." During the post mortem examination of the deceased which was also  held on 26.2.1974, the following injury was  found  on his person:- 76               "Stab wound 1" x 1/2" x 1.3/4". On probing, on               left side front of chest, 2.1/2" inner to left               nipple  at 10 O’ clock position  pointing  the               onwards and downwards." The Doctor (PW-1), who held the post mortem examination, ad- mitted that the aforesaid injury could be caused by ballam. So far Chandrapal (PW-2) is concerned, the Doctor noted  the following injury on 26.2.1974:-               "Abrasion 1-1/2 x 1/3" on the left side  front               of  chest,  horizontally  with  shallow  edge,               medically, 7" below ancillary pit.  The  wound               was  not bleeding afresh, but had got  clotted               blood over it." The  Doctor  in  Court  stated  that  possibility  of  self- infliction of that injury could not be ruled out. According to the State, even if the version disclosed by the appellant  is  accepted, it will amount to a  case  of  free fight  between the prosecution party and the  accused,  both being  armed  and  when there is a free fight  there  is  no question of right of private defence accruing to any side. A free fight is that when both sides mean to fight a pitched battle.  The question of who attacks and who defends in such a  fight  is wholly immaterial and depends  on  the  tactics adopted by the rival party.  In such cases of mutual fights, both sides can be convicted for their individual acts.  This position  has  been settled by this Court in  the  cases  of Gajanand  v. State of Uttar Pradesh, AIR 1954 SC 695;  Kanbi Nanji  Virji v. State of Gujarat AIR 1970 SC 219;  Puran  v. State  of Rajasthan, AIR 1976 SC 912 and Vishvas Aba  Kurane v.  State of Maharashtra, AIR 1978 SC 414.  As such once  it is  established  by the prosecution that the  occurrence  in question is result of a free fight then normally no right of private  defence is available to either party and they  will be guilty of their respective acts. But  so far the facts of the present case are concerned,  if the  version  disclosed by the accused can be held to  be  a probable version of the occurrence then it cannot be held to be  a case of free fight.  According to the  appellant,  the crops  of the field of his grand-father were  being  damaged for  last  two  days prior to the date  of  the  occurrence; because  of that appellant claims that he was  watching  the said field.  During the night the 77 deceased  and Chandrapal (PW-2) came to the same  field  and the  appellant chased them.  But soon they turned  back  and started  assaulting  the appellant with  lathies.   At  this stage the appellant wielded his ballam (spear) which  caused

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an injury to the deceased which ultimately proved fatal.  It is an admitted position that the appellant filed a  petition before  the Superintendent of Police giving his  version  of the  occurrence in the morning of ’basis of that a case  was registered at about 10.25 A.M. on 26.2.1974, the  occurrence having taken place during the night of 25.2.1974. This  fact has  been  admitted  by Shri Manohar Singh  (PW-6)  who  has proved the first information report lodged on behalf of  the prosecution.  On the examination, Dr. R.P. Rastogi (PW-3) of the District Hospital, Bullandshahar, did find four injuries including  one on the scapula of the appellant.  It is  true that  injuries  were  simple in nature.   But  even  on  the deceased  only one injury 1" x 1/2 1.3/4" was found  on  the left side front of the chest, which according to the  Doctor who held the post mortem examination, could have been caused by  a  weapon like ballam (spear).  In the  statement  under section  313 of the Code of Criminal Procedure  (hereinafter referred  to as "the Code") given by the appellant,  it  was stated  by  the appellant in detail as to how  the  standing crops on the land of his grand-father were being damaged and on  the  night of the occurrence he was guarding  the  field when  he saw the deceased and Chandrapal  (PW-2)  destroying the  crops  in the field.  He also stated  that  he  shouted chor-chor and then chased them to catch them.  But soon they turned  round and started giving lathies blows and in  self- defence  the appellant used a ballam.  It appears  that  all this  happened in the aforesaid field which  the  apppellant was guarding. From  time  to time this Court has pointed out  that  merely because  some injuries are found on the accused, which  have not  been explained by the prosecution, by itself shall  not be  a ground for rejecting the whole prosecution  case.   It will  depend on facts of each case what inference should  be drawn by the Court.  In the case of The State of Gujarat  v. Bai  Fatima,  AIR 1975 SC 1478, it was said  that  when  the prosecution  fails to explain the injuries 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.               78               (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 aforesaid three inferences drawn on basis of the  nature of injuries were reiterated in the case of Lakshmi Singh  v. State  of  Bihar,  AIR  1976 SC 2263,  and  it  was  further observed:-               "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 suppressed  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

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             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 prosecution one." A  three-Judge  Bench in yet another case  of  Bliaba  Nanda Sarma v. The State of Assam, AIR 1977 SC 2252, said:-               "The prosecution is not obliged to explain the               injuries  on the person of an accused  in  all               cases  and in all circumstances.  This is  not               the law.  It all depends upon the facts and               79               circumstances   of  each  case   whether   the               prosecution  case becomes reasonably  doubtful               for its failure to explain the injuries on the               accused."               In the case of Hare Krishna Singh v. State  of               Bihar, AIR 1988 SC 863, it was said:               "If  the witnesses examined on behalf  of  the               prosecution are believed by the Court in proof               of  the  guilt  of  the  accused  beyond   any               reasonable   doubt,   the  question   of   the               obligation  of the prosecution to explain  the               injuries  sustained  by the accused  will  not               arise.   When  the prosecution  comes  with  a               definite  case  that  the  offence  has   been               committed  by the accused and proves its  case               beyond any reasonable doubt, it becomes hardly               necessary for the prosecution to again explain               how  and in what circumstances  injuries  have               been inflicted on the person of the accused."               But  in  the  case of State  of  Rajasthan  v.               Madho, AIR 1991 SC 1065, it was held:               "If  the prosecution witnesses shy  away  from               the  reality and do not explain  the  injuries               caused  to the respondents herein it  casts  a               doubt  on the genesis of the prosecution  case               since  the evidence shows that these  injuries               were  sustained  in  the course  of  the  same               incident.   It gives the impression  that  the               witnesses  are  suppressing some part  of  the               incident.   The High Court was, therefore,  of               the  opinion  that having regard to  the  fact               that they have failed to explain the  injuries               sustained by the two respondents in the course               of the same transaction, the respondents  were               entitled to the benefit of the doubt." As first impression there appears to be some conflict in the views  expressed  in the different judgments of  this  Court referred to above.  But on proper reading with reference  to the  facts  of each case, there is no basic  difference  and according to us this Court rightly in the case of The  State of Gujarat v. Bai Fatima (supra) put in three categories the result which may follow from the facts of each case.  It  is well-known that guilt of the 80 accused  is  to  be judged on the basis  of  the  facts  and circumstances  of  the particular case.  In  any  particular

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case  the injuries found on the person of the accused  being serious  in nature may assume importance in respect  of  the genesis and manner of occurrence alleged by the prosecution. In other case the injuries being superficial, by  themselves may  not affect the prosecution case; the version  disclosed by  the prosecution having been proved by witnesses who  are independent,  reliable  and trustworthy,  supported  by  the circumstances of that particular case, including the prompt- ness  with which the first information report was lodged  on behalf  of  the prosecution.  But if the  first  information report  has  not  been  lodged  promptly  and  there  is  no reasonable  explanation  for the delay;  the  witnesses  who support the version of the prosecution are not only inimical but   even  their  evidence  is  not  consistent  with   the circumstances found during the course of investigation, then in  that  situation, injuries on the person of  the  accused which  are not very serious in nature assume importance  for the  purpose of consideration as to whether the  defence  of the  right of private defence pleaded by the accused  should be accepted. It is well-known that accused pleading the right of  private defence  need not prove it beyond reasonable doubt.   It  is enough if on the basis of the circumstances of a  particular case,  applying the test of preponderance  or  probabilities the version becomes acceptable.  There are not two  parallel versions before the Court, one on behalf of the  prosecution and other on behalf of the accused and the Court is required to  choose  as to which of the two versions is  the  correct version of the occurrence.  The burden placed on the accused is  discharged no sooner he creates a doubt in the  mind  of the Court and satisfies the Court that the version disclosed by  him  in the facts and circumstances of  that  particular case  is  more  probable.  The onus  of  the  accused  under section  105 of the Evidence Act has been examined  by  this Court in the cases of Partap v. The State of U.P., [1976]  2 SCC  798; Mohan Singh v. State of Punjab, AIR 1975 SC  2161; Seriyal  Udayar  v. State of Tamil Nadu, AIR 1987  SC  1289; Vijayee  Singh v. State of U.P., [1990] 3 SCC 190  and  Buta Singh v. State of Punjab, [1991] 2 SCC 612. So  far the present case is concerned the injuries found  on the  person of the appellant are not serious in  nature  and merely  on the ground that prosecution has suppressed  those injuries,  the appellant is not entitled to  the  acquittal. But those injuries can certainly be taken into consideration 81 while judging whether the defence version of the accused  is probable.  The motive disclosed on behalf of the prosecution for the occurrence is not acceptable.  Even if it is assumed that because of some altercation 10/12 days before the  date of occurrence, the appellant had decided to cause the murder of Jagdish then more injuries would have been caused on  the person  of the victim by the appellant instead of an  injury 1"  x 1/2 x 1 3/4".  The prosecution case regarding  assault by  Ramesh  with  a  knife on  Chandrapal  (PW-2)  has  been disbelieved  by the Trial Court as well as the  High  Court. The  delay  in  lodging  the  first  information  report  by Chandrapal  (PW-2)  has  not at  all  been  explained.   The occurrence according to prosecution took place at 6.00  P.M. in the evening.  The victim while being taken to Debai which is  at  a distance of five kilometers expired  on  the  way. Then why first information report was lodged at 11.30  P.M., there is no explanation.  On the other hand the  appellant’s case is that the occurrence did not take place at 6.00  P.M. in the evening but at later part in the night.  That appears to  be  more probable.  The appellant  appeared  before  the

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Superintendent of Police, the next morning and disclosed his version  of  the  occurrence on basis of which  a  case  was registered.   His injuries were also examined only the  next morning.   He  also took a firm stand during  his  statement under  section  313  that he give a  ballam  blow  when  the deceased  and Chandrapal (PW-2) started assaulting him  with lathies.  Out of the four injuries one was on the  scapula,. The  doctor  has not opined that they were  manufactured  or self-  inflicted.  Those injuries, according to the  doctor, had  been caused by a blunt weapon which is consistent  with the defence version of the occurrence.  The injury found  on the   chest  of  the  deceased  is  inconsistent  with   the prosecution case that appellant chased the deceased and then gave a blow by knife.  But it is consistent with the defence version  that  soon  the  deceased  and  Chandrapal   (PW-2) returned  and  started  assaulting the  appellant  when  the appellant  gave a ballam blow in the chest of the  deceased. If the appellant had given the ballam blow while chasing the deceased,  in that event it would have caused injury on  the back of the deceased. The High Court has not disbelieved ’the version disclosed by the  appellant.   The  High Court on  consideration  of  the evidence and the circumstances of the case has observed:-               "It  is  true  that  this  respondent  gave  a               different  time  of  the  occurrence  and  his               version of the occurrence was also               82               different  and it has been disbelieved by  the               learned  Sessions Judge, obviously  on  cogent               grounds.  But this cannot wash out the  effect               of his clear stand all through that there  was               a marpit between him and the informant and the               deceased  in which he had wielded a  spear  on               them.  This part of this respondent’s  version               was  clearly  severable from the rest  of  his               version  and it was not at all necessary  that               if the learned Sessions Judge disbelieved  his               version   regarding   the   manner   of    the               occurrence,  he  was  bound  to  rule  out  of               consideration this admission of the respondent               which was clearly separate and severable  from               the rest of his story." The  High  Court  has used a part of the  statement  of  the appellant  as an admission.  According to us, that  part  of the  statement made by the accused under section 313 of  the Code  cannot  be  used  as  an  admission,  supporting   the prosecution case.  It is well-known that an admission has to be  taken as a whole.  It was not open to the High Court  to reject  one  part so far the aggression and assault  by  the prosecution party which according to the appellant  preceded giving of the ballam blow, and to accept only the later part of the statement that appellant gave a ballam blow, for  the purpose  of  convicting  the  appellant.   In  the  case  of Hanumant Govind Nargunadkar v. State of Madhya Pradesh,  AIR 1952 SC 343. it was said:-               "It is settled law that an admission made by a               person  whether amounting to a  confession  or               not  cannot  be split up and part of  it  used               against him.  An admission must be used either               as a whole or not at all." The High Court should have taken the whole statement made by the appellant as an admission and then should have  examined what  shall be the effect thereof on the  prosecution  case. According  to  us, taking all facts and  circumstances  into consideration  the version of the accused of the  occurrence

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appears to be probable and acceptable. The  next question is as to whether in the circumstances  of the  case appellant could have caused the death of  Jagdish. While accepting the plea of right of private defence it  has been said that if the right is available, while judging  the question whether the accused has exceeded such right, should not be weighed in a golden scale.  But the right of  private defence 83 does not extend to infliction of more harm than is necessary for  the purpose of defence.  When the appellant caused  the injury  with  a ballam (spear) in the chest  of  the  victim which resulted in his death, certainly he exceeded his right of  private  defence.  Accordingly, the  conviction  of  the appellant under section 302 of the Penal Code is set  aside. But  the appellant is convicted under section  304,  Part-1, and sentenced to rigorous imprisonment for seven years which according to us shall meet the ends of justice.  The  appeal is allowed in part to the extent indicated above. V.P.R.                   Appeal allowed partly. 84