JUDGMENT
Y.R. Meena, J.
1. This appeal is preferred against the judgment of Additional Sessions Judge No. 1, Udaipur, dated 23rd August, 1989. He has convicted the accused-appellant Prakash Chandra for offence under Sections 302, 324 & 341, IPC and sentenced him to life imprisonment and a fine of Rs. 1,000/-, in default of payment of fine to further undergo one year’s rigorous imprisonment on the first count, six months’ rigorous imprisonment on the second count and one month’s simple imprisonment on the third count respectively. The accused-appellant Radheylal was convicted for offence Under Sections 307, 341 and 324, IPC and sentenced to five years’ rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine to further undergo three months’ rigorous imprisonment on the first count, one month’s simple imprisonment on the second count and six months’ rigorous imprisonment on the third count respectively. The accused-appellant Shantilal was convicted for offence Under Sections 307 and 341, IPC and sentenced to five years’ rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine to further undergo three months’ rigorous imprisonment on the first count and one month’s simple imprisonment on the second count respectively. The substantive sentences of all the accused-appellants on each count were ordered to run concurrently.
2. Relevant facts leading to this appeal are that on September 20, 1984 at about 9/10 p.m. one Dhan Singh lodged a report in writing at police station, Dabok alleging that on September 20, 1984 at about 9.45 p.m. Girwar Singh, Sambhoo Singh and informant Dhan Singh were coming from Udaipur to Dabok on a scooter. Just before reaching Dabok near barrier on the National Highway they saw that Prakash, Ladu alias Radheylal, Shantilal and Shanker Harijans and one another person named Salim were standing. It was further alleged that all the accused persons were armed with various weapons. Prakash Harijan had a dagger like weapon, while Ladu and Shantilal had swords with them. The accused persons waylaid them and threw down the scooter by pushing it. It was then alleged that first of all Prakash gave a blow by the weapon like dagger on the chest of Girwar Singh. Thereafter Ladu gave a sword blow on the head of Dhan Singh. Shantilal gave a sword blow on the neck of Shambhoo Singh. The beating continued for about 5/7 minutes. On hearing hue and cry Raju Tailor and Sujan Singh also came there. They witnessed the incident. Dhan Singh also received an injury by sharp edged weapon on his left hand. Thereafter, it is said that all the three persons ran away and Dhan Singh went to police station. He did not know as to where Shambhoo Singh and Girwar Singh had gone. The cause of incident was alleged to be previous enmity. On receipt of this information a case for offence Under Sections 307, 147, 148, 326 r.w. Section 149, IPC was registered. The police reached the spot at about 9.45 p.m. and the place of incident was cordoned at once and a constable was deployed to guard the place. Accused Prakash Chandra. Radheylal and Shanker were arrested at about 11.00 p.m. The place of occurrence was inspected again on the next morning i.e. 21st September, 1984 at 9-30 a.m. The site plan and the memo thereof was prepared which is Ex. P. 3. It was noticed that the house of accused-appellant Prakash Chandra was about 20 feet from the place of occurrence. At the place of occurrence police found several articles spread over which included one pair of slippers, one Madaliya, broken pieces of lakh bangles, one shoe with chain, one titch button, one white button of a shirt, one broken torch etc. It is pertinent to mention that neither a scooter nor a motor-cycle was found. Blood stains were found at the place of occurrence on the road in 5/6 feet area. One more shoe with chain was found at a distance of 28 feet from the place of occurrence. Blood stains were also found near the boundary of Janta College which were 38 feet away from the place of occurrence. Dead-body of Girwar Singh was found in South-East of the place of occurrence at about 350 feet away behind Agarwal Hostel. The police prepared panchnama of the dead-body of Girwar Singh and injuries on the left arm and fingers with sharp edged weapon and one fatal injury on left side of the chest on the person of deceased were shown therein. Post-mortem of the corpse was got conducted and the following injuries were found by Dr. Bhatnagar on the dead-body of deceased Girwar Singh :
1. Incised penetrating wound on Chest wall just below left axilla in 6th intercostal space It. 3.7 cm x 0.6 cm x 10 cm.
2. Incised wound on dorsal aspect of proximal interpholangeal joint of index finger 3 cm x 0.5 cm 0.1 cm.
3. Incised wound on dorsal aspect of wrist at the base of index finger 3 cm X 0.5 cm x 0.1 cm.
4. 3 incised wounds on dorsal aspect of wrist 3 cm x 0.5 cm x 0.1 cm each.
5. Incised wound on the palm 7 cm x 0.5 cm x 0.1 cm.
6. Right side of face traingular lacerated wound, all the three limbs measured 2 cm only and depth 1 cm.
7. Bruise 3 cm x 0.5 cm on the middle 1 / 3 rd of left upper arm.
8. Bruise 1 cm x 1 cm on the knee joint left. In the opinion of Dr. Bhatnagar the cause of death was incised penetrating wound on the Chest wall suggests that a weapon with double cutting edge punctured the left lung, which resulted in profuse bleeding, which-got collected in pleural cavity resulting in suffocation and death.
Dr. Nahar Singh Kothari, P.W. 9, examined the injuries of Dhan Singh which are as follows :–
1. Incised wound 5.5 cm x 0.5 cm x bone deep on the left frontal region of scalp oblique, bleeding.
2. Incised wound 1.0 cm x 0.2 cm x skin deep on the lower 1 / 3 left arm laterally with incised abrasion 5.0 cm. x 0.1 cm. directed upward medially.
Dr. Nahar Singh Kothari PW 9 also examined the injuries of Shambhu Singh which are as follows :–
1. Incised wound 1.5 cm. x 0.5 cm. with detachment part of ear labula right side and with incised wound 2.5 cm. x 0.1 cm. skin deep right ear pinna anteriorly oblique.
2. Incised wound 2.5 cm. x 0.6 cm. x skin deep on the angle of right mandible.
3. Incised wound 12.0 cm. x 2.5 cm. x muscle deep on the right side of neck postrio lataerally bleeding.
3. After completion of investigation charge-sheet was submitted against Prakash Chandra, Radheylal, Shanker, Shantilal and Saleem for various offences in the Court of learned Magistrate. They were committed to Sessions and were tried by Additional Sessions Judge No. 1, Udaipur. The learned Additional Sessions Judge read over the charges for offence under Sections 148, 341, 302, 307/149 and 324 IPC to accused Prakash Chandra and rest of the accused were charged for offence under Sections 307 read with Section 149, IPC inter alia other charges. The accused pleaded not guilty to the charges and claimed to be tried. The accused Saleem expired during the pendency of the trial; hence proceedings were dropped against him. The prosecution examined 20 witnesses in support of its case.
4. The accused under Section 313, Cr.P.C. came with a specific defence. Accused Prakash Chandra in his statement stated that Girwar Singh, Dhan Singh and Shambhoo Singh came drunk to his house and forcibly attempted to abduct his wife Kamla alias Jamna with an intention to seduce her to sexual intercourse and/or molest her, to outrage her modesty. His wife cried for help and hearing it he ran to her rescue to save her from being molested and raped and for that reason they were assaulted. Accused examined four witnesses in their defence. Learned Additional Sessions Judge gave benefit of doubt to Shanker and acquitted him but convicted and sentenced the accused Prakash Chandra, Radheylal and Shantilal as indicated above. It is against this conviction and sentence that this appeal has been preferred.
5. While holding the accused guilty, the learned Additional Sessions Judge placed reliance on the statements of Dhan Singh, Shambhu Singh, Raju Tailor and Sujan Singh. He sought corroboration from the post mortem report and the recovery of the weapons of offence. He, however, held that there is no evidence to suggest that there was any unlawful assembly and acquitted the accused of the offence under Section 148, IPC and did not find any accused guilty of offence with the aid of Section 149, IPC. The learned Addl. Sessions Judge did not believe the defence story at all.
6. Challenging the findings arrived at by the learned Addl. Sessions Judge, learned counsel for the accused-appellants, Shri Sandeep Mehta, submitted that learned Addl. Sessions Judge has not properly appreciated the evidence. He pointed out that both the complainant party and the accused persons are living in Dabok. Accused persons were teasing Smt. Kamla wife of Prakash Chandra for about a month and half. Earlier to this occurrence also there was a quarrel on this issue and the complainants were beaten by one Liladhar, a friend of Prakash Chandra as he had complained to his, friend Liladhar. He further submitted that prosecution has failed to prove that accused persons were waiting for Dhan Singh, Girwar Singh and Shambhu Singh at the place of occurrence to attack the complainant at about 9.30 p.m. No evidence was brought on record which reveals that accused persons had knowledge of the fact that circumstances Dhan Singh, deceased Girwar Singh and Shambhu Singh were coming from Udaipur on a Scooter and were to reach Dabok at about 9 or 9.30 p.m. When there is no evidence to this effect, it is impossible to conceive of the presence of the three accused with arms on a busy highway where at every three minutes interval truck passed. He drew our attention to the statement of the S.H.O., Shri Asfak Ahmed who accepted that the place of occurrence was put under guard in the night itself. He has given out the names of two constables who were deployed to keep watch on the place of occurrence so that the evidence could not be destroyed or created. It is submitted that the investigating officer on next day found from the place of occurrence various incriminating articles, i.e., Madaliya, pair of shippers, one titch button, pieces of lakh bangles etc. He further brought to our notice that no scooter or motor-cycle was found at the plaice of occurrence. It is submitted that there is overwhelming evidence to substantiate that Kamla wife of Prakash Chandra was being teased by the complainant party and they had an evil eye on her. It is submitted that there is evidence to suggest that earlier also there had been quarrel on this issue. It is then submitted that defence version finds corroboration from the prosecution witnesses themselves. In as much as the story of the complainant party coming from Udaipur on a Scooter falls flat mainly on two counts, firstly that no scooter has been found lying at the place of occurrence; and secondly P.W. 12 Ashok Kumar has stated in his statement that when he went to inform about the incident to the wife of Shambhu Singh she replied that Shambhu Singh had gone out telling her that he is just returning and she is waiting for him for taking meals which fact goes to show that Shambhu Singh had come from his residence to the place of occurrence rather than was way laid on return from Udaipur. It is submitted that it is also not possible to locate a person coming on a Scooter at that odd hour on national highway where the prosecution’s own evidence is that it is a very busy national highway and even one truck passes in every 3rd minute. It is then submitted that Kamla had sustained injuries in the incident whom the investigating officer has not got her medically examined and she could do nothing because her husband and relations all had been detained by the police. He has stated that the statements of Kamla, her husband Prakash Chandra accused given on oath have not been shattered and there is no reason to disbelieve the defence version which is also corroborated by the statements of Bhanwar Singh DW 2 and Basant Kumar DW 4.
7. Learned Public Prosecutor Shri K.L. Jasmitiya submitted that the accused themselves admitted the incident and the court has to determine only one question as to whether their case at all falls within the exceptions mentioned from Section 97 to Section 104, IPC. It is submitted that the prosecution witnesses have categorically stated that the accused were lying in ambush and waylaid the complainants and the deceased and inflicted injuries. It is submitted that evidence of the independent witnesses like Raju Tailor and Sujan Singh who have been rightly believed by the trial Court fully establish the prosecution case. His submission is that recovery of Madaliya, pieces of bangles, recovery of titch button etc. are not of much significance as they could also be planted on the scene of occurrence to substantiate the defence story.
8. We have given our earnest consideration to the rival submissions and have perused the entire record.
9. The entire case is in a very narrow ambit in view of the fact that incident is admitted by both the sides, hence only question to be decided is as to whether the prosecution has proved its story beyond all manners of reasonable doubt giving out the nexus or there is probability of defence story being true. It is settled law that the prosecution has to prove its case beyond all manners of reasonable doubt while the defence has to show that the reasonableness of it is by preponderance of probability. It is again settled proposition that when there are two parallel stories then the one which is in favour of the accused, should be accepted and it is in this background of legal position that we would be appreciating the evidence on record.
10. According to the prosecution story while Dhan Singh Girwar Singh and Shambhu Singh were returning at 8.45 p.m. from Udaipur a distance about 18 kms. to Dabok riding on scooter, they saw Prakash Chandra, Ladu, Shantilal, Shanker and one more person armed with weapons and with a motor cycle on the road near Dabok. They stopped the scooter, pushed it on one side and attacked the complainant party. Hearing the cries Raju Tailor and Sujan Singh appeared on the spot. According to the defence version both the parties are staying at Dabok. Shambhu Singh, Dhan Singh, Girwar Singh and Prakash Paliwal had been teasing Mst. Jamna alias Kamla wife of Prakash who is young lady of 25 years. Whenever she sued to move out of house for grazing her cattle or for any other purpose they used to whistle at her and tell her that she should come and sweep inside their houses for that they will pay money to her to which she had refused. She complained to her husband about this attitude of these persons. Three days earlier there was a scuffle between her husband and the complainant party. On the day of occurrence at about 8.30 p.m. her husband and his elder brother Radheylal were taking meals then Girwar Singh, Shambhu Singh and Dhan Singh came to her house and called her husband. Since he was taking meals she came to the door to see as to who was calling. Girwar Singh threw torch-light on her and pushed her out. Dhan Singh and Shambhu Singh started pushing her and they were taking her on the other side at a distance from house. She resisted and during the course of resistance her bangles broke, blouse torn out, buttons gave way and fell down. Madaliya which she was wearing in the neck also fell down. Hearing her cries her husband and her Jeth (husband’s elder brother) came and there was a scuffle where according to Prakash Chandra, he and his colleagues caused injuries on the person of the complainant party and ran away from there. The defences story therefore is suggestive of two defence, one is that they were acting in exercise of right of private defence of the body of Mst. Kamla and secondly they inflicted injuries in sudden and grave provocation.
11. On prosecution side PW 1 Dhan Singh corroborating the story as mentioned above, stated that Prakash had given first knife blow on chest of Girwar Singh, Radhey Lal inflicted sword blow on his head, Shantilal inflicted sword blow on Shambhu Singh. The witness in cross examination admitted the earlier quarrels between both the sides but denied that it was because of Kamla. According to him only a couple of days before also there had been an incident of violance between them. He however, denies the suggestion that the accused used to ask him and his party not to do Gundagardi. He admitted that shoes were lying on the spot. He also admitted that there was a Madaliya on the spot but he states to whom it belongs, he cannot say. He also admitted that there was a Madaliya on the spot but he states to whom it belong, he cannot say. He also admitted that the pieces of bangles were lying and so also buttons, but he cannot say to whom they belonged. He denied the suggestion made to him about the defence story. He has given evasive answers to many of the questions put to him in cross-examination. PW 2 Shambhu Singh who corroborated the prosecution story, was also put entire defence story in his cross-examination. He admitted that police as well as several other persons asked him even on the spot as to what was the cause of the incident but he refused to give out the reason to them and only stated the manner in which incident had taken place. This witness has in cross-examination also refused to give out the genesis of the incident. He even denied the earlier incident which took place between the two parties, but when confronted had to admit the same. A perusal of the statement of the witness shows that he wants to suppress certain things. PW 3 Sujan Singh who has been relied upon as an independent witness, is alleged to have got down from a Bus at the time of incident as he had to get a tank welded and since the welding shop was closed, while returning, he heard the cries for help and when he went on the road he saw the incident. He gave out the narration of the incident which he saw thereafter. This witness is not very relevant in our opinion, since he arrived at the spot when the incident had already started and could not be a witness to say as to how the incident started or as what the motive behind the accused persons inflicting injuries on the complainant party. In cross-examination he has therefore, admitted that he cannot say that Harijans beat these persons because they teased the wife of Prakash. He admitted that he is also Rajpoot and belong to the same community to which Dhand Singh, Girwar Singh and Shambhu Singh were. The witness stated that he had seen a Scooter and a motorcycle on the spot but who took them away, he does not know. P.W. 14 Raju Tailor is another eye witness. He also arrived at the place of occurrence when the incident had already started. He denied that it was on the cries of a lady that he had rushed to the spot but then admitted that the cries were of a lady as well as a gent. This witness in his earlier statement before the police has stated that on hearing the cries of a lady he had arrived at the spot. He has however, resiled from his statement and was confronted with the same. The witness has also resiled on several points from his statement under Section 164, Cr.P.C. This is the total evidence led by the prosecution. From this evidence it is not borne out as to how the incident started. We are reluctant to rely upon the statements of PW 1 Dhan Singh and PW 2 Shambhu Singh that they left Udaipur for Dabok with Girwar Singh at about 8.00 p.m. so as to reach the place of occurrence at about 8.30 p.m. for various reasons. This distance is more than 18 kms. The place of occurrence is admittedly the National Highway No. 8 which is a very busy National Highway. It is not the prosecution case that the complainant party used to pass that place at that particular point of time everyday or very often and this fact was in the knowledge of accused persons so that the complainant would be waiting for them. It is not even the evidence that accused had any knowledge that the complainant party had gone to Udaipur at all on that day or that they will be passing through that way at 8.30 p.m. on Scooter. We are also unable to conceive of even the idea that at 8.30/8.45 p.m. one can stop the scooter on National Highway on other side of the road identifying the persons from a distance when the head lights of the vehicle were on unless they had the information and, therefore, the story of the complainant party coming from Udaipur on Scooter and being waylaid by the accused persons on National Highway in that hour appears to be a fiction. This fact is also not corroborated because of two another important factors. One is that no scooter has been found lying on the place of incident when the police arrived on the spot. It is not the case of any of the prosecution witnesses that Scooter was removed by anyone of them or by anyone else. All the three persons riding Scooter had run away on receiving the injuries and one of them Girwar Singh died while he was in a field, thus absence of Scooter is significant; and secondly PW 12A Ashok has categorically stated that the wife of Shambhu Singh told him that he had just gone out telling her that he is returning and she should wait for him for taking meals, hence the story of the prosecution of coming from Udaipur to Dabok and being waylaid by the accused persons is not worthy of any reliance.
12. We have already discarded the story of the prosecution to the effect that deceased and his two other colleagues, Dhan Singh and Shambhu Singh, were stopped and pulled down from the scooter and the injuries were cause to them on the road. We are thus unable to find out the genesis of the prosecution story. It was essential for the prosecution to have brought out the same in a case like the present one. It is all the more necessary when the incident had taken place in the night hour at about 9.00 p.m. near the house of the accused and a young lady of 25 years was involved in it. We will now look into the defence version minutely more particularly because accused have come with a specific story.
13. Jamna D.W. 1 in her statement has stated that she knew Dhan Singh complainant, her brother Girwar Singh deceased, Shambhu Singh and Prakash Paliwal from before. She Was also knowing Shantilal accused who was running an Akhada. She stated that her house is in villagae Dabok which falls on Udaipur-Chittor National Highway, while the house of accused is on Dabok-Nahar Magra Road. She has stated that Shambhu Singh, Girwar Singh, Dhan Singh and Prakash Paliwal often used to tease her and whenever she will pass, they would start whistling towards her and pass filthy remarks. They used to ask her to come to their house for sweeping when she would go for grazing the cattle. She had complained to her husband about the behaviour of these persons who in turn asked Shanti Lal and on this count there was a quarrel three days prior to this occurrence (this fact is admitted by prosecution witnesses.) At about 8.00 or 8.30 p.m. while her husband and Radheylal, her Jeth were having meals somebody knocked the door, called out ‘Prakash, ‘Prakash’. As her husband and Radheylal were busy in having meals she opened the door and found Girwar Singh, Dhan Singh and Shambhu Singh standing. Girwar Singh stepped in and pulled her out and started dragging her on the road. There was a scuffle and she cired for help. Her blouse was torn, bangles broken and Mandlia fell down. She was further being dragged by Girwar Singh and was pushed by other complainants. They wanted to abduct her. On hearing her cries leaving meals her husband and Radheylal etc. came for her rescue and after a scuffle, could save her from being abducted and raped. She stated that she sustained injuries in the scuffle but was not got medically examined. This witness has been cross-examined at quite some length but not on the main incident which she narrated against the complainant.
14. D.W. 3 Prakash Chandra accused, who appeared as a witness for himself and gave statement on oath, also corroborated the statement of Mst. Kamla alias Jamna. He has stated that when his wife cried for help and he saw that she was being dragged out, he came out with a deggar and Radhey Lal came out with a sword to rescue her out when they did not leave her despite their all efforts he and Radheylal had no option but to inflict blows on them to rescue Kamla who had been fallen down at quite some distance from the house. He stated that had he not saved her by inflicting blows, accused would have abducted her and would have committed rape on her. This witness also has been cross-examined at length but could not be shaken. There is hardly anything to discredit his testimony. From the perusal of the statement of these witnesses it is apparent that the story of the accused appears to be far more probable than the prosecution story. The defence case is also corroborated from the prosecution’s own evidence. The Investigating Officer PW. 12 Ashfaq, who had reached the place of occurrence immediately and who had posted the constable to guard the place of occurrence by putting a corden around it, clearly states that he found slippers, buttons of the shirt, buttons of the blouse., bangles pieces, Mandia etc. lying on the road out side the house of the accused. The recovery of all these articles lands full corroboration to the story of Mst. Jamna alias Kamla. There is one more important factor that blood has been found at about a distance of 26 from the house of the accused towards a field there the dead body has also been found and there was no trail of blood from the road up to the place where the dead body had been found which again corroborates the story of Mst. Kamla that she had been dragged away from the road and as being abducted while accused chased her and saved her from the clutches of Girwar Singh. Her story could be further corroborated by medical evidence provided Investigating Officer would have got her medically examined. We are fully convinced and have no hestitation in accepting the story given by Jamna alias Kamla to the extent that complainant party at that odd hour had gone to the place of the accused and abducted her.
15. From the aforesaid discussions we are firmly of the opinion that the witnesses examined by the defence are more truthful than the prosecution witnesses who have suppressed the genesis of the story and we are inclined to accept the defence version. In this view of the matter, the task before us is to see as to whether accused persons can be held guilty of some offence and if so for what?
16. Before considering the question as to what offence is made out? In our opinion it is essential to consider the position of law in this case, more particularly because a three side attack has been made on the prosecution story, firstly that the genesis of the prosecution story has not been put forward. The reason is that no reliance has been placed on the statements of the prosecution witnesses regarding their being waylaid on the National Highway while they were approaching near the house of the accused persons. On the contrary there is more probability of the complainant party going to the residence of the accused Prakash Chandra with some ulterior motives and during the incident Mst. Jamna alias Kamla had also been assaulted. Secondly, the trial Court itself has not found the accused guilty of forming an unlawful assembly or that the accused acted in furtherance of the common intention or that they had a common object of committing offence for which they could be convicted and sentenced. Thirdly, when the complainant party was the aggressor and assaulted the wife of Prakash Chandra, he and his colleagues were entitled to the right of private defence of the person of Mst. Jamna alias Kamla or at the most the act of accused Prakash Chandra would fall within the Exception (1) to Section 300, IPC. It has been laid down time and again by this Court and their Lordships of the Supreme Court that the prosecution must come with the genesis of the prosecution story and the evidence which it leads must be unimpeachable. In Sarvan Singh Rattan Singh v. State of Rajasthan, AIR 1957 SC 637 : (1957 Cri LJ 1014) their Lordships of the Supreme Court held as under (at page 645 of AIR) :–
“It is no doubt a matter of regret that afoul cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole the prosecution story may be true; but between ‘may be true’ and ‘must be true’ there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.”
In Shekh Hafiz. v. State of Bihar, 1973 SCC 790 (sic) their Lordships of the Supreme Court took the view that when there is material contradiction in the statements of the eye witnesses and it has not given the true version of the fight itself the appellant must be given the benefit of doubt. Their Lordships of the Supreme Court have been reiterating in one after another case that evidence of the prosecution does not become reliable merely because it has been corroborated by the number of witnesses of the same brand, for evidence is to be weighed and not counted. In the instant case we have read the evidence of the witnesses more than twice and neither Dhan Singh nor Shambhu Singh nor Raju Tailor inspires confidence as they are suppressing the true version of the origin of the fact. Sujan Singh and Raju Tailor have admitted that they were at the distance of 100 yards from the place of occurrence and admittedly there was no sufficient light so as to see the incident in the manner stated from such a long distance, as to what they want us to believe. They cannot be taken as wholly reliable witnesses. We have already held that Dhan Singh and Shambhu Singh are not only interested witnesses but have also not come out with a true version. In this view of the matter we hold that the prosecution has failed to bring out the genesis of the story so as to establish its case beyond all manners of reasonable doubt. It is only because of the fact that the accused have admitted the occurrence we have to consider the case from the point of view as to what offence is made out, else so far as the prosecution story is concerned, it has failed to establish its case beyond all manners of reasonable doubt and no offence can be said to be proved against the appellants.
17. Despite the fact that we have arrived at the finding that the prosecution witnesses are not reliable and the prosecution has not travelled the entire distance between ‘may be true’ and ‘must be true’ by unimpeachable reliable and cogent evidence, yet we have to look into the case from a different angle, particularly because the accused Prakash Chandra and Mst. Kamla alias Jamna have admitted that Girwar Singh has been killed by Prakash Chandra and the other members of the complainant party had also sustained injuries at the hands of the accused persons. Looking from this angle also we are unable to hold the accused appellants guilty as in our opinion they were entitled to exercise the right of private defence. Complainants going at, that odd hour of the night to the residence off Prakash Chandra, dragging a young lady of 25 years with ulterior motives and causing injuries on her person were sufficient circumstances for the accused to have taken law in their own hands. Section 100, IPC extends the right of private defence of the body to voluntary causing of death or any other harm to the assailant for the offence which occasions the exercise of right be of the following description :–
“That the assailant was with the intention of committing rapeand/or with intention of kidnapping or abducting.”
Dragging out of Mst. Jamna alias Kamla I from her house by force at 9.00 p.m. with an intention to seduce her to sexual intercourse would certainly be a circumstances which gave a right to the accused persons to inflict injuries on the person of the deceased, Dhan. Singh and Shambhu Singh. It was clearly a case of atrocity on weaker sex of the society. She was assaulted by the deceased and the complainant party who had an evil eye on her, since they had been passing unwarranted remarks on her virtually outraging her modesty, and in these circumstances accused knowing the background were justified in coming to the rescue of the young lady and in that process to take up the arms. Considering the totality of the circumstances from any angle we are of the opinion that this is a fit case where the accused must be extended the benefit of doubt may be because we are unable to rely the prosecution story or because of the fact that they all were entitled to the benefit of exercising of right of private defence of the person of Mst. Kamla alias Jamna.
18. As a result of the aforesaid discussions, we accept this appeal, set aside the conviction and sentence passed against the accused-appellants by Addl. Sessions Judge No. 1, Udaipur vide his order dated 23-8-89 and acquit all of them of all the charges. Accused-appellant Prakash Chandra is in jail. He shall be released forthwith if not required in any other case. Accused-appellants Radhey Lal and Shanti Lal are on bail. They need not surrender to their bail bonds and they are discharged.