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To put it simply, if a defence is made out, the accused is entitled to be acquitted and if not he will be convicted of murder. But in case of use of excessive force, he would be convicted under Section 304 IPC."

The question again came up for consideration in Nagarathinam & Ors. v. State, Rep. by Inspector of Police [JT 2006 (4) SC 288] wherein this Court in an almost identical situation opined:

"The genesis of the occurrence is, therefore, shrouded in mystery. This occurrence, admittedly, took place, but who were thus initial aggressors, i.e., the prosecution witnesses or the appellants, is difficult to say. The High Court has found that the prosecution had not been able to prove the charge of rioting. The appellants and others did not have any common object to cause death of the accused of the prosecution witnesses. We have noticed hereinbefore the nature of injuries on the person of the appellants. The first appellant received two stab wounds and also an incised wound over the scalp at frontal region. The appellant No.2 received deep cut wound and an incised wound over the scalp left side parietal region. The appellant No.3 also received an incised scalp wound over frontal parietal region. It is not denied and disputed that they were in the hospital as indoor patients for a few days. We have furthermore noticed hereinbefore that they were also arrested after a few days.

The defence of the Appellants, therefore, could not have been wished away. In a case of this nature, it was necessary on the part of the prosecution to explain the injuries on the part of the accused. The investigation of the entire cases and particularly in regard to the fact that there were cross cases, a fair investigation was expected. The possibility of PW-3 and the deceased being the aggressors cannot be ruled out. It would bear repetition to state that they had been bearing grudge against Appellant No. 1.

Why the occurrence took place in front of the house of the Appellants had not properly been explained by the prosecution witnesses. Evidently, there was no pre-meditation on the part of Appellant No. 1. He was not armed. He took out an ubhari from his bullock cart at a later stage.

The possibility of PW-3 and the deceased being aggressors must be judged from the admission made by PW-3 that they intended to kill Appellant No. 1. As has been noticed hereinbefore, the statements of the prosecution witnesses in regard to the genesis of occurrence and the presence of the prosecution witnesses at different stages are not uniform. It is, therefore, a case where it is likely that sudden fight between the parties erupted which would attract Section 304 of the Indian Penal Code and not Section 302 thereof. It is also a case where an inference can safely be drawn that the blows were initially not hurled on the deceased by the Appellants. They did so at a later stage. But, Appellant No. 1 suffered minor injuries. He had not been able to show that the situation was such that he could reasonably apprehend his death. They have exceeded their right of private defence in using more force upon the deceased than was necessary.