Holding

If the accused's version is probable, the incident is not a free fight; private defence is available but the accused exceeded it, warranting conviction for culpable homicide not amounting to murder rather than murder.

Summary

Dwarka Prasad was convicted of murder under sections 302 and 307 IPC. The prosecution alleged that he and a co‑accused attacked the deceased and a witness with knives, motivated by a prior altercation, and that the FIR was lodged several hours after the incident. The accused claimed he was guarding his grandfather's field, was assaulted by the deceased and the witness with lathis, and struck back with a ballam in self‑defence, causing the victim's death; his injuries were minor and the FIR was delayed. The Supreme Court examined whether the incident constituted a "free fight" that would preclude private defence, the relevance of the delay and injuries, and whether the accused exceeded the right of private defence. It held that the accused's version was probable, so the incident was not a free fight and private defence was available, but the use of a ballam causing death exceeded the lawful limit. Consequently, the conviction under section 302 was set aside, while the conviction under section 304 Part‑I (culpable homicide not amounting to murder) was upheld with a seven‑year rigorous imprisonment sentence.

Issues considered

The incident amounted to a "free fight" precluding the right of private defence.
Whether the accused was entitled to claim private defence under the circumstances.
Whether the delay in lodging the FIR and the nature of injuries on the accused affect the credibility of the prosecution's case.
Whether the statement made under Section 313 of the CrPC can be used as an admission against the accused.
Whether the accused exceeded the scope of private defence by causing death.

Legislation cited

Code of Criminal Procedures. 313
Indian Evidence Act, 1872s. 105
Indian Penal Code, 1860s. 105, s. 302, s. 307, s. 34, s. 97

Subjects

murderprivate defencefree fightdelay in FIRinjury evidencesection 313burden of proofculpable homicide not amounting to murder

Judgment

A OWARKA PRASAD
v.
STATE OF UTTAR PRADESH

FEBRUARY 23, 1993

B (K. JAYACHANDRA REDDY AND N.P. SINGH, JJ.) ,l.
Penal Code, 1860 : Sections 302, 307, 34-Charged unde,-Apprecia-
tion of evidence-f'rosecution case-Free fight not proved-/njuries found on
the person of the accused-Significance of-Delay in lodging FIR-£ffect
of-Motive disclosed by prosecutiotr-Acceptability of-Accused's versiotr-
c Probability of.

Penal Code, 1860 : Section 97 read with Section 105, _.....,

Evidence Ac~ i 872 : Right of private defence-When available-Ac·
cused causing injury with a Ballam in the chest of the victim resulting
D
death-Whether right of private defence available.

Code of Criminal Procedure, 1974 : Section 313 - Statement made by
accused under-Duty of Court while using.

E The prosecution's case was that on the date of occumnce, the p.w.2
)--
and the deceased were returning after answering the call of nature at abont 6
P .M. At that time the appellant along with co-accused came there. Seeing the

F
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 dilod on the way while he was being taken to Debai. The P.W. 2.
--
lodged the first information report on the same night at abont 11.30 P.M.

The motive for the occurrence was that aboot 10 or 12 days before
-
the date of occurrence, the appellant abnsed the P.W.2 and the deceased.
They gave two/three slaps to the appellant.
G
The app.ellant-accused's case was that for last two days prior to the
date of occumnce the crop of his grand-father was being damaged. ~
Therefore, he was keeping a watch on the field. Doring night the P.W.2 and
the deceased eame to the field. Seeing them, the appellant raised an alarm
H Chor-Chor. They started running. The appellant chased them to catch
?O
DWARKA PRASAD v. STATE OF U.P. 71

them. But they turned back and started assaulting the appellant with A
lathies. The appellant attacked them with a 'ballam' to save his life. The
injuries on the person of the appellant were examined, in the next morning.
He filed an application before tbe 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.
B
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 C
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 D
would amount to a case offree light between the prosecution party and the
accused, both being armed and that in a case of free fight no party could
.claim right of private defence.

Partly allowing the appeal, this court,
E
HELD: 1.01. 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, [76E]
F
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 light. [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 G
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 H
72 SUPREME COURT REPORTS [1993) 2 S.C.R.

A 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 circumstavces found during the course of inves-
tigation, then in that situation, injuries on the person of the accused which
B 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. [SOB-DJ

1.04. So far the present case is concerned the injuries found on the -
C person of the appellant are not serious in nature and merely on the ground
that prosecution has suppressed those injuries, the appellant is not en- ._
titled to the acquittal. But those injuries can certainly be taken into
consideration while judging whether the defence version of the accused is -\
probable. [SOHi

D
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) .
F
1.06. The delay in lodging the first information report by 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

F
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 hut at later part in the night. That appears
to be more p<obable. [81C)

1.07. The injury found on the chest of the deceased is inconsistent
G 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 A
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
H event it would have caused injury on the back of the deceased. [81F)
\.
'

DWARKA PRASAD v. STATE OF U.P. 73

1.08. Taking all facts and circumstances into consideration the ver- A
sion of the accused of the occurrence appears to be probable and accept-
able. [82G]

Gajanand v. State of Uttar Pradesh, AIR 1954 SC 695; Kanbi Nanji Vilji
v. State of Gujara~ 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 B
State of Gujarat v. Bai Fatima, AIR 1975 SC 1478; Lakshmi Singh v. State of
Bihar, AIR 1976 SC 2263; Bhaba Nanda Sam10 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 1991SC1065, referred to. [76F)

2.01. Once it is established by the prosecution that the occurrence in
c
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.
[76GJ
2.02. Accused pleading the right of private defence need not prove it D
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. [SOE)

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 E
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)
F
2.04. If the right of priv~te defence is available. While judging the
~ question whether the accused has exceeded such right, should not be
weighed in a golden scale. Bot 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 ballam (spear) in the chest G
of the victim which resulted in his death, certainly he exceeded his right of
private defence. [82H, 83A)

Partap v. The 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 H
74 SUPREME COURT REPORTS (1993] 2 S.C.R.

A Singh v. State of Punjab, [1991] 2 SCC 612, referred to. [SOG]

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
B 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]

C 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
D
Appellant.

R.C. \ ,•.rma for the Respondent.

The Judgment of the Court was delivr) ed by
E ,,.._
N.P. SINGH, J. The appellant was aC<j~n.cd of the charges under
sections 302 and 307 read with section 34 of the Penal Code by the Trial
Court. On . 1cal being filed on behalf of the State of Dttar Pradesh he

F
has been u •••victed 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
G 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
H Station Debai at about 11.30 P.M. the same night.
DWARKA PRASAD v, STATE OF u_p_ [N,P, SINGH, J_] 75

The motive of the OCC\lrrence, according to the prosecution, is that A
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.
B
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. C
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
/athies. 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 D
version of the occurrence in which he admitted that when he was being
assaulted by Chandrapal (PW-2} and the deceased, he had used a ballam.
A case was registered by the Police at about 10.25 A.M. on 26.2-1.974, on
the basis of the petition filed on behalf of the appellant.
- _,- The injuries on the person of the appellant were examined by Dr.
E
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 1J2 cm back of left shoulder
upper part. F
{2} Faint contusion 10 cm x 2 cm on outer side left back
at the lower angle of scapula_

(3) Faint contusion 4 Vz cm x 1 cm on back of upper part
l/3rd left forearm. G
(4) Faint contusion 12 cm x 1 cm on the back and inner
aspect left forearm upper l/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:- H
'-.;
•
76 SUPREME COURT REPORTS [1993) 2 S.C.R.

A "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.
B
So far Chandrapal (PW-2) is concerned, the Doctor noted the fol- ).,_
lowing injury on 26.2.1974 :-

c
"Abrasion ll/i x 113' on the left side front of chest, horizon-
tally with shallow~dge, 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.
D 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 accnsed, 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.
E
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.

F
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
Gujara4 AIR 1970 SC 219; Puran v. State of Rajasthan, AIR 1976 SC 912
-
and Vishvas Aba Kurane v. State of Maharashtra, AIR 1978 SC 41f 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.
G 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 damag~d
A
for lasf two days prior to the date of the occurrence; because of that
H appellant claims that he was watching the said field. During the night the
DWARKA PRASAD v. STATE OF U.P. [N.P. SINGH, J.] 77

deceased and Chandrapal (PW-2) came to the same field and the appellant A
chased them. But soon they turned back and started assaulting the appel-
lant with lathies. At this stage the appellant wielded his ballam (spear)
which caused an injury to the deceased which ultimately proved fatal. It is
an admitted position that the appellant filed a petition before the Super-
intendent of Police giving his version of the occurrence in the morning of B
26.2.1974. On basis of that a case was registered at about i0.25 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 c
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 D
(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 E
started giving lathies blows and in self-defence the appellant used a ba/lam.
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 F
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 77re 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 G
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. H
78 SUPREME COURT REPORTS [1993] 2 S.C.R.

A (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 d.oubt.

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

B 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:-

c
"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 follwing inferences: .....,
(1) that the prosecution .has suppressed the genesis and
the origin of the occurrence and bas thus not presented
D
the true. version:

(2) that the witnesses who have denied the pres·ence of
the injuries on the person of the accused are lying on a
most material point and therefore their evidence is unreli-
E able;
:.-- -

(3) lhal in case there is a defence version which explains
the injuries on the person of the accused it is rendered

F
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 inter-
>-
ested or inimical witnesses or where the defence gives a
version which competes in probability with that of the
prosecution one."
G
A three-Judge Bench in yet another case of Bhaba Nanda Sanna v.
171e 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 circumstan-
H ces. This is not the law. It all depends upon the facts and
DWA..'lKA PRASAD v. STATE OF U.P. [N.P. SINGH, J.] 79

circumstances of each case whether the prosecution case A
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: -
B
"If the 'Nitnesses 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 sns-
tained by the accnsed will not arise. When the prosecution
comes v.ith a definite case that the offence has been
c
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 circumstan-
ces injuries have been inflicted on the person of the
accused." D

But in the case of State of Rajasthan v. Madho, AIR 1991 SC 1065,
it was hdd:-

.... "If the prosecution witnesses shy away from the reality and
E
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 F
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 G
e~pressed 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 eacji case. It is well-known that guilt of the H
80 SUPREME COURT REPORTS [1993] 2 S.C.R.

A accused is t.o be judged on the basis of the facts and circumstances of the
particular case. 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
B proved by witnesses who are independent, reliable and trustworthy, sup-
ported 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 wit-
c nesses 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 t.o whet.her t.he defence of the right of
D privat.e 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
E 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
F 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; Molza11 Singh v. State of Punjab, AIR 1975 SC 2161; Seriyal
Udayar v. State of Tamil Nadu, AIR 1987 SC 1289; Vijayee Si11gh v. State
of U.P., (1990] 3 SCC 190 and Buta Si11gh v. State of Pu11jab, [1991] 2 SCC
G 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
H the acquittal. But those injuries can certainly be taken into coi:sideration
DWARKA PRASAD v. STATE OF U.P. [N.P. SINGH, J.] 81

while judging whether the defence version of the acc11Sed is probable. The A
motive disclosed on behalf of the prosecution for the occurrence is not
acceptable. Even if it is assumed that because of some altercation 10/U
days before the date of occurrence, the appellant. bad decided to ca11Se the
murder of Jagdisb, then more injuries would have been ca11Sed on the
person of the victim by the appellant instead of an injury 1' x 1/2 x 1 )'4".
B
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) bas not at all been explained. The occurrence accord-
ing to prosecution look 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 C
the way. Then why first information report was lodged at 11.30 P.M., there
is no explanation. On the other band 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
hcforc the Superintendent of Police, the next morning and disclosed his D
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 s_capula1. The doctor has
not opined that they were manufactured or self- inflicted. Those injuries, E
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 F
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 G
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 H
82 SUPREME COURT REPORTS [1993) 2 S.C.R.

A different and it has been disbelieved by the learned Ses-
sions 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
B
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

c
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 ease. It is well-known that an admission has to
D 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 bal/am blow, and to accept only the
later part of the statment that appellant gave a ballam blow, for the
purpose of convicting the appellant. In the ease of Ha11uma11t Govi11d
E Nargu11dkar 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."
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F
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 ease. According to us, taking all facts
and circumstances into consideration the version of the accused of the
G occurrence 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,
H should not be weighed in a golden scale. But the right of private defence
DWARKA PRASAD v. STATE OF U.P. [N.P. SINGH, J.J 83

does not extend to infliction of more harm than is necessary for the purpose A
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-I, and sentenced to rigorous imprison-
ment for seven years which according to us shall meet the ends of justice. B
The appeal is allowed in part to the extent indicated above.

V.P.R. Appeal allowed partly.
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