JUDGMENT
S.K. Phaujdar, J.
1. The two appellants and one Vishwanath stood charged for of-fences under Sections 302/34 and 323/34, IPC before the IVth Addl. Sessions Judge, Mirzapur, in S.T. No. 55 of 1979. During the pendency of the trial, however, Vishwanath had died. The trail proceeded for the olher two and the learned trial Judge, by his judgment and order dated 30-6-1980, convicted the two appellants for both the aforesaid offences and sentenced each of them to undergo imprisonment for life under Sections 302/34, IPC and further sentenced each to undergo R.I. for 6 months under Sections 323/34, IPC. The sentences were to run concurrently. The two appellants presented the appeal on 10-7-1980 and were enlarged on bail under an order of this Court,
2. Upon a report of Sri Barhu, son of Raghunath Yadav, made to the Adalhat police station, District Mirzapur, a non cognisable case No. 398 under Sections 323, 504 and 506, IPC was drawn up on 11-12-1978. The report indicated the name of the complainant as also the name of the accused, Bharat, Nakku and Vishwanath and names of two wilnesses, Radhey and Shyam Narain. The short note of the incident as noted in the chick indicated that the accused persons were ploughing their land. Chabutara of the complainant was by the side of the land. The accused persons came upon the chabutara and ploughed it up. When the father of the complainant objected the accused persons started assaulting him. The victim raised alarm which attracted the complainant and (he witnesses. They tried to rescue Raghunath and the complainant too was assaulted by lathi. His father also sustained injury. The injured, Raghunath, was taken on a charpoy to She police station. The injured persons were referred to the hospital. The doctor declared Raghunath dead. The dead body was brought hack to the police station and death too was reported. Only thereafter the case for the death of Rughunath was initiated.
3. The dead body was sent for post mortem examination which was held on 12-12-1978 at about 8 a.m. and three injuries were found on the head with certain other injuries at some other parts of the body. According to the post mortem report, the skull bone under the three head injuries was fractured and the membranes of the brain were torn underneath the three ante – mortem in-juries on the head. According to the post mortem examination, death was due to shock and haemorrhage as a result of these head injuries. During investigation, the witnesses were examined, blood stained earth and standard earth were seized and charge sheet was submitted against the three named accused persons. After commitment, trial was taken up before the Sessions Court.
4. At the trial, the prosecution had examined 9 witnesses. PW 1 was Dr. P.I.,. Pandey who held the post mortem examination on the dead body of Raghunath. PW 5 was Dr. A.K. Vapna who had examined the injuries of the complainant Barhu and his evidence speaks of Raghunath having been brought dead to the hospital on 11- 12-1978. PW 2, Barhu PW 3, Hidiyatali and PW 4, Shiv Balak were witnesses on the point of incident. PW 6, Ram Naresh Singh was the investi-gation officer, PW 7, Mohd. Sayeed was the Head Moharrir in Adalhat police station who had recorded the chick of initiation of a non-cognisable case under Sections 323, 504 and 506, IPC and this witness further stated about further entry of a G.D. informing the death of Raghunath, whereupon the case was converted to one under Section 304, IPC. PW 8, Bharat Lal, was posted in Adalhat police station on the relevant date and he had carried the dead-body of Raghunath to the doctor for post mortem examination. PW 9, Hari Narain Yadav, was the police officer who held inquest on the dead body of Raghunath and sealed the dead body and forwarded the same for post mortem examination.
5. The accused persons were examined under Section 313, Cr.P.C. and a definite defence was taken that the land was ploughed a day prior to the incident and on the date of the incident sowing was completed. Raghunalh and Barhu allegedly encroached upon the sown field and tried to make a chabutara. Bharat and his father-in-law, Vishwanath, objected to it. Raghunath came with a gandasa, Barhu with a lathi and tried to assault them. In defence, they used their lathis end caused injuries to Raghunath and Barhu. Nakku took a defence that he was not present at the spot on the date of the incident and he had never been to that village. The accused persons also examined a defence witness to prove their version and this witness was none but Radhey, whose name was shown as a witness in the first report: made by Barhu.
6. It may be necessary to indicate certain relationship inter se the parties. The deceased Raghunath and the accused Vishwanath (now deceased) were two brothers. The complainant, Barhu, is the son of the deceased, Raghunath. Vishwanath had no son and had two daughters only. Bharat is the son-in-law of Vishwanath be-ing married to his daughter Bhanta. Nakku is a brother of Bharat. Barhu admitted that Vishwanath and Raghunath had more than 10 bighas of land, each having half share. Vishwanath had given away his share in writing to his daughter. Bhanta and in the same breath. Barhu again stated that Vishwanath had given his share of the lands to his two sons-in-law. The other son-in-law, Shyam Narain, did not stay in the village. Bharat stayed with Vishwanath and cultivated the lands of Vishwanath. Barhu further admitted that consolidation proceedings were over in the village and the shares of Vishwanath and Raghunath were shown in different chaks and Raghunath had not objected to this. Barhu had also admitted that Vishwanath’s field lay to the north of Barhu’s house intervened by the chabutara of “Barhu. This chabutara was 4 to 5 cubits in width from north to south and was a long one about 20 latha in cast-west direction. This chabutara was 1 ft. above the level of the land of Vishwanath. There were occasional quarrels between the branches of Raghunath and Vishwanath over this chabutara and Barhu admitted that the accused persons had been asserting that Raghunath and Barhu had encroached upon their land to extend the chabutara while they were insisting that the accused persons were cutting the chabutara. A report had been made to the police station for this dispute and a daroga had come but the lands were not domareated.
7. A three-fold defence was set up by the learned counsel for the appellants when arguments were taken up. It was stated that there was no proof of the indicent and in any view of the matter the case could not have come under the purview of Section 302, IPC as, even according to the first information report, the assault took place over some quarrel over land after exchange of hot words.”It was also contended that the accused persons had a right of self defence of property and person and they had not exceeded the right even in causing the death of Raghunath.
8. The first defence must be discarded at the outsets as the happening of the incident is not disputed as is clear from the trend of cross-examination, from the suggestion given to the witnesses and from the definite defence taken by Bharat in his examination under Section 313, Cr.P.C. as also from the statement of the defence witness Radhcy. Thus, we would confine ourselves to the question of exercise of right of pri-vate defence, if any, by the accused persons, further to see if such right had existed, whether the accused persons had exceeded it and thereby would be liable for some offence lessor than the’ offence for which they have been convicted.
9. The first information report which was basically recorded as a non cognisable report is a cryptic one so far the incident is concerned. It simply stated about ploughing up the chabutara, objection by Raghunath followed by assault on him and subsequent assault on Barhu when he intervened. The details had come through evidence alone. Barhu had stated that Bharat had ploughed up his chabutara for two or three rounds and that was objected to by Raghunath which gave rise to exchange of hot words (‘AAPAS MEIN KAHAA SUN! HUT). At this, Vishwa-nath exhorted that Raghunath be killed. Vishwanath caught hold of Raghunath and Bharat and Nakku assaulted him with lathi. Raghunath fell down. Barhu came to his rescue. He too was given lathi blows by Bharat and Nakku. This incident, according to Barhu, was witnessed by Shyam Narain, Radhey and Buddhu. They were not produced by the prosecution. Barhu indicated the names of his brother Shiv Balak and his mother Lakshimina as having seen the incident. Shiv Balak was produced as a witness. There is no reference in the evidence of Barhu about the presence of Hidayatali, PW 2.Barhu stated in cross-examination that two years prior to the present incident, their chabutara was narrowed down by Vishwanath and thereafter they had not extended it again. Nor did they allow the other party to make any further cut in the chabutara. He was confronted with his previous statements to pin him down on the point that he had not indicated before the police that Nakku was also poughing. He did not indicate in his FIR that Vishwanath had exhorted others to kill Raghunath or that he had cought hold of Raghunath. He denied that any lathi or gandasa was used by him and Raghunath. He was sure that it was the lathi of Bharat which hit Raghunath on his head, but he could not say where Raghunath was hit by the lathies of others. Regarding the incident, the evidence of Hidayatali may be kept out of consideration as he was never named, either in the FIR or in the statement of the complainant in court, to be a witness. Moreover, his evidence is a verbatim reproduction of what was stated by Barhu. The other witness, Shiv Balak also gave a version similar to that of Barhu. He did not state before the police that even after Raghunath had fallen down, he was hit by lathi. He did not state to the police again that Nakku was also poughing. Shiv Balak had accepted that Bharat and Vishwanath were claiming that it was their land and they would plough it while Raghunath was claiming that it was his chabutara and that gave rise to the dispute. He made a very significant statement that the land of Vishwanath and chabutara were at the same level. This not only goes against the claim of Barhu that the Chabutara was abit high than the field, but also states that ploughing was done on that portion of the land which was at level with the field of Bharat. He made a further statement that Nakku did not reside in the village but the came whenever required. He used to reside in Nathupur. He too had claimed that his father was hit on the head by Bharat. He could not say where had the lathi of Nakku stuck him. This statement may be read with the statement of Barhu who had accepted that the width of the chabutara was diminished two years ago and thereafter the police had also come. Raghunath and Barhu never tried again to extend it beyond that position.
10. The defence witness Radhey Shyam, undoubtedly is a person named in the FIR and his presence at the spot has been admitted by PW 2 Barhu as well. According to him, Raghunath and Barhu were trying to make chabutara on the land of Vishwanath and the land had already been sown. Vishwanath and Bharat objected. A quarrel followed. Raghunath and Barhu had gandasa and lathi with them. They attacked Bharat and Vishwanath. However, they were not hurt. In defence, they used their lathies and Raghunath and Barhu suffered injuries. This Radhey Shyam had accompanied Barhu and Raghunath to the police station and the daroga had recorded his statement. Nakkoo, according to this witness, was not present at the time of this incident. His cross-examination indicates that the land in question was ploughed a day ahead of this incident and was sown up to 12 noon on the date of the incident. He too had accepted that there was a difference in the. level of the field of Vishwanath and the chabutara of Raghunath. They had stalled making a chabutara for 5 to 10 minutes when the quarrel followed. He accepted that there was no injury caused to Vishwanath and Bharat but he denied the suggestion that Raghunath and Barhu were not armed.
11. From what has been stated above,the following facts emerge out :
The land of Vishwanath and Chabutara of Raghunath are situated side by side, the chabutara being at a higher level of one feet than the field. The lands of is wanath and Raghunath were separately recorded without any objection from Raghunath. There had been a persisting dispute over the common boundary of the chabutara and the land and about 10 years ago the width of the chabutara was diminished by cutting it. Police had come. No demarcation was made and Ragbunath and Barhu, according to the complainant, had never tried to extend it to its original position again. Over the claim and counter claim of the parties, there was a quarrel which resulted in the bloody end. No party had come up with any paper to show as to where the chabutara ended and as to wherefrom the field began. In this respect, the evidence of investi-gating officer is also important. He had visited the spot on 12-12-1978 and he claims to have seen the chabutara lying north of the house of Raghunath. A portion of this chabutara was found ploughed up. He had also seen the land of Vishwanath ploughed up. He had found plough marks on the chabutara where from blood stained and standard earth were taken. He was cross examined on this point and had explained that about four or five rounds of ploughing mark were there on the chabutara.
We have two versions of the incident, one from the prosecution and another from the defence. It is the accepted norm of criminal jurisprudence that while prosecution is obliged to prove a case beyond all shadow of doubt, this degree or proof is not demanded from the defence. It is sufficient for the defence to put up a probable case and once the defence case is a probable one, the truth of the prosecution story is shaken. Under this light, we are to judge the story of self-defence set up by the accused person on the basis of aforesaid facts.
12. In this connection the learned counsel for the appellants placed reliance on a decision of the Supreme Court in the case of Jaideo as reported in AIR 1963 SC 612 : (1963 (1) Cri LJ 495). In explaining the extent of right of private defence, the Supreme Court had observed that in judging the conduct of a person who proved that he had a right of private defence, allowance is to be made for his feelings at the relevant time. He was faced with an assault which caused a reasonable apprehension of grieveous hurt and that inevitabley creates in his mind some excitement and confusion. At such moment, the uppermost feeling in his mind would be to ward off the danger and to save himself or his property and he would be anxious to strike a decisive blow in exercise of his right. On facts, however, the story of self-defence was discarded. The observations of the Supreme Court regarding the extent and exercise of right of private defence was made when the existence of the right is proved or is to be assumed from the facts and that proof or assumption is to depend on the particular facts of each case.
13. Reliance was also placed on another decision of Supreme Court reported in 1977 Cri LJ 225 : (AIR 1977 SC 366). It was a case where some armed persons went to harvest certain crops forcibly and during the assault which they made on the owner of the crop the accused who was on the side of the owner gave a fatal blow with a bhala to one of the members of intruding party, reasonably apprehending grievous hurt to or death of the owner. Under these circumstances, the accused could not be said to have exceeded his right of private defence. The very fact that the accused used his bhala against the deceased would show that the deceased might have been using a more deadly weapons than the others. It was not shown that the deceased was unarmed at the time of the assault and the benefit of doubt was given to the accused. His conviction under Section 304 Part I was set aside and the accused was acquitted.
14. The theory of self-defence of person is, in this case, a corollary to the theory of self-defence of property. It is the defence case that the land of Vishwanath was ploughed a day ahead of the alleged incident and was sown on the fateful day and, thereafter, the complainant-party, had tried to make a chabutara on this land. On Ob-jeclion, the complainant-party, tried to assault Vishwanath and Bharat who had used their lathies in defence causing injuries to Raghunath and Barhu. The defence case as is made out from the version of accused Bharat in 313 Cr.P.C. statement and the defence witness Radhey does not suggest that the accused had come with ploughs at the time of the incident. This theory is not at all supported from the statement of the investi-gation officer who had found this chabutara ploughed up for four or five rounds and plough marks were there on the chabutara itself. In the absence of any fruitful cross-examination on this point, the observation of the investigating officer must be accepted as a fact and if that is done, the defence case loses even the degree of probability the proof of which is cast upon the defence. We are then led to the belief that the incident had happened at the time of actual ploughing and the plough was used not only once but four or five times upon the chabutara. If for this act of Vishwanath and Bharat, Raghunath and Barhu had taken an exception and even if it is accepted for the sake of argument that they tried to resist with arms such action of Vishwanath and Bharat, they were within their right to protect their property. In such a situation, Vishwanath and Bharat would be the aggressors and when retorted to by the real owners of chabutara against damage of the same by ploughs, a plea of private defence may not be available to Bharat and Vishwanath. The decision of the Supreme Court in the case of Jaideo had spoken of the extent of right of private defence in a situation when the defence could prove the existance of that right. In the instant case, the defence could not prove the existance of that right for the reasons stated above and, as such, the question of exceeding the right or to be within that right is of little consequence.
15. The defence of Nakku, however, is a total denial of the incident so far he was concerned. In his statement under Section 313 Cr.P.C. Nakku had stated that he was separate from Bharat since 1967 and he had not gone to the place of occur-rence on the date and at the time of incident. It is true that the first information named Nakku as well as an accused, but the evidence does not attribute any motive upon Nakku for having assaulted Raghunath or Barhu. It was the land of Vishwanath and Bharat was the son-in-law of Vishwanath staying with him and looking after his cultivation. The absence of examination of the FIR named witnesses by the prosecution and production of other who were not named in the FIR and production of Hidayati who was not even named in the examination-in-chief of Barhu gains importance so far the case against Nakku is concerned. The first informant did not say that Nakku had hit Raghunath on his head. They con-sistently say that it was the lathi of Bharat which caused the head injuries of Raghunath. In his statement before the police, Barhu had not stated that Nakku was also plaughing the land. Shiv Balak, brother of Barhu, had not also stated before the police that Nakku was ploughing the land at the relevant time. It appears that the name of Nakku may have been incorporated simply because of the reason that he was the brother of Bharat. The defence witness Radhey was consistently described as a person present at the spot and he had clearly stated that Nakku was not present at the spot and it must, therefore, be held that participation of Nakku in the incident has not been proved beyond all shadow of doubt.
16. Under these circumstances, the appeal stands partly allowed so far the appellant Nakku is concerned. He is given benefit of doubt and is acquitted. He stands discharged from his bail bonds. The appeal fails in respect of the appellant, Bharat Yadav. His plea of exercise of right of private defence has been discarded. His conviction and sentence are confirmed. He is directed to surrender before the CJM, Mirzapur within 15 days for serving out the sentence imposed on him, failing which the CJM will issue all coercive processes to compel his appearance and to send him to custody for serving out his term of imprisonment. His bail bonds stand cancelled. The CJM may proceed against the sureties also to compel the appearance of Bharat Yadav before hiny.