JUDGMENT
K.S. Lodha, J.
1. The appellant Om Prakash has been convicted under Section 302,IPC and sentenced to imprisonment for life and a fine of Rs. 200/-, in default, two months’ further RI and Shiyo Prakash has been convicted under Section 323, IPC and sentenced to six months’ imprisonment (not mentioned whether rigorous or simple) and a fine of Rs. 200/-, in default, one (mouth’s RI, by the learned Additional Sessions Judge, Nohar, by his judgment dated 30-6-1983, They have come up in appeal against their convictions and sentences.
2. The prosecution story briefly stated is that on 10-3-1982 at about 3 or 3.30 p.m. Ami Lal while on his way to his house, passed near the house of the accused Om Prakash and Shiyo Prakash who happened to be standing in their door they surrounded him and Om Prakash gave ‘Kasiya’ blow on the head of Ami Lal. Ami Lal’s cousion, who was at that time standing out side his house, saw this and ran to rescue Ami Lal. Thereupon, Shiyo Prakash gave a blow with a ‘Kasiya’ on his left hand fingers and another blow on his hand and then Om Prakash gave another Kasiya blow on the head of Ami Lal where upon Ami Lal fell down. At that stage, Madu Ram and Kashi Ram came to their rescue. Ami Lal had lost his consciousness on account of his injuries and was in a precarious condition. Madu Ram and Kashi Ram and some other residents of the village took the injured Ami Lal to Bhadra Hospital and Badri Ram proceeded to report the matter to the Police. He reached the Police Station. Bhirani at about 5 p,m. and lodged a verbal report to the above effect. He also mentioned that it was on account of an old enmity that Om Prakash wanted to kill Ami Lal and had, therefore, caused him injuries. On this a case under Section 307 read with Section 34, IPC was registered and the Police started investigation
3. In the course of investigations, the accused Om Prakash, his father Het Ram and his wife Smt. Supari Sayara were got examined and the following injuries were found on their persons:
1. Om Prakash:
(1) Abrasion 1″ x 1/2″ on the left leg 3″ above ankle joint,
(2) Abrasion 1″ x 3/4″ on the Right sterno clavicle region;
(3) Abrasion 1″ x 1/2″ on proximal phalyx left index finger,
2. Het Ram:
(1) Lacerated wound 1″ x 1/4″ x 1/8″ on the Right occipito–parietal region.
3. Smt. Supari alias Sayara:
(1) Abrasion 1″ x 1/4″ x 1/8″ on the left parietal region.
After completion of the investigation, the Police put up a challan against the accused for offences under Sections 302. 307, 326, 323 read with Section 34, IPC, before the learned Munsif & Judicial Magistrate, Bhadra. As in the meantime, Ami Lal had died and the case was converted from 307 to 302, IPC. The learned Magistrate committed the accused to the court of Addl. Sessions Judge. The learned Additional Sessions Judge framed charges under-sections 302 & 307 read with 34. IPC against Om Prakash and those under Section 302 read with Sections 34 and 307, IPC against Shiyo Prakash. The: accused pleaded not guilty. They were, therefore, tried. The prosecution examined 13 witnesses and produced 30 documents. The accused denied the; prosecution story when examined under Section 313, Cr PC Theircase, how ever, was that on 10-3-1982, their father Het Ram, Om Prakash’s wife Supari alias Sayara, Munshi, Shanker and his sister Chandro were at their houses when the deceased Ami Lal along with Badri, Madu, Kashi, Nathu and some other persons came there armed with ‘Shela’, ‘Jellies’ & ‘Lathis’ and attacked them. When Om Prakash’s father Het Ram requested them not to beat them, they gave a Lathi blow on his head, whereupon, his father fell down, and other persons also staged beating him Badri Ram gave a blow with the spear under neath his ruck and then Ami La? aimed the Lathi blow on his head whereupon he stretched his hand to avert the blow, therefore, the Lathi fell on his fingers. In the mean time, Om Prakash’s wife came there to their rescue after picking up a spade and she gave a blow on the head of Ami Lal, Ramji Lal, from the complainant party, also gave a Lathi blow on the head of Om Prakash’s wife. They were got medically examined by the Police. No action was taken against the complainant party despite the fact that they had lodged a report to the Police. The accused-persons examined three witnesses in support of their defence. On completion of trial, the learned Additional Sessions Judge convicted and sentenced the appellants as aforesaid.
4. We have heard the learned Counsel for the appellants and the learned Public Prosecutor and have gone through the record.
5. The learned Counsel for the appellants has raised two contention before us. His first contention is that the prosecution story as put forward by the alleged eye-witnesses cannot be believed as they have not come out with the genesis of the story and have suppressed material facts and have not explained how the accused Om Prakash, his father Het Ram and his wife Supari got injured in this incident. His second contention is that as a matter of fact the accused had acted in the right of their private defence and they were justify in causing the injuries leading to the death of Ami Lal as also the injuries on the person of Badri Ram and as they were well within their right of private defence of their persons, they cannot be held guilty for any offence. The learned Counsel did not, how ever, challenge that Ami Lal had received injuries leading to his death and Badri Ram had also received injuries as found by the doctor. The learned Public Prosecutor, on the other hand, supported the convictions of the appellants had endorsed the findings of the learned Additional Sessions Judge.
6. Having regard to the contentions raised before us and having carefully considered them as also the material on record, we are of the opinion that the contentions raised by the learned Counsel for the appellants deserve to be accepted.
7. As the learned Counsel for the appellants has not challenged the fact that Ami Lal had received the injuries as found on his parson by the doctor and died on account of them and the doctor has stated that these iujuries, namely, injury No. 1 and 2 which ware as under:
1. Incised wound involving frontal bone 3″ x 3/4″ x 3/4″-Verticle on right frontal region, bone cut;
2. Incised wound involving bone 4-1/2″ x 3/4″ x 3/4″-Extending transversally from left to right parietal region bones cut.
Left parietal piece(1″ x 1″) separate dura matter of Brain exposed.
were sufficient in the ordinary course of nature to cause death. We need not refer to that part of the evidence, and we are in agreement with the learned Additional Sessions Judge that these injuries were sufficient in the ordinary course of nature to cause death, which fact has not been disputed before us by the learned Counsel for the appellants.
8. In order to establish its case, the prosecution has examined Badri Ram PW 1, Manphool Singh PW 2, Kashi Ram PW 3 and Madu Ram PW 4 as the eye-witnesses. So far as Madu Ram PW 4 is concerned, he had turned hostile. Kashi Ram PW 3 admittedly reached the spot after Ami Lal had already received injuries and had fallen down and, therefore, he could not have stated how these injuries came to be caused on his person So far as Manphooi Singh PW 2 is concerned, he clearly appears to be a chance witness as be does not live in the vicinity of the place of incident and not given any convincing explanation of his presence there. Not only this, his name does not find mention in the First Information Report which had been lodged by Badri Ram PW 1, the principal witness. He denied having seen Het Ram of Sayara at the spot when according to Investigating Officer himself these persons had received injuries in this incident and he had got them medically examined. He, therefore, clearly appears to be trying to suppress the truth and in these circumstances, we are not inclined to place any reliance on his testimony. We are then left with the testimony of Badri Ram PW 1 alone so far as the manner in which Ami Lal received the injuries. Now this witness states that he had reached the spot on hearing the cries of Ami Lal “MARE RE MARE”, which suggests that he was not present at the spot from the very beginning of the incident and could not have seen how it started. Again he first states that he was at his house where he heard the cries but then changes his stand and says that he was at the house of his brother Har Dayal when he heard those cries. This improvement does not appear to be without purpose because, admittedly, he could not have heard or seen the incident from his own house and, therefore, he has ‘tried to shift the place from where he beard the cries and rushed to the spot but even if he is accepted to be present at his brother Har Dayal’s house, it does not appear that he could have heard the cries or seen the incident from there also. If that place was such where the cries could have been heard or from where the incident could have been seen, the Investigating Officer would certainly have shown the house of Har Dayal in the site plan Ex. P. 2. but Har Dayal’s house has not been shown in this plan. Then again, even if we assume that he was able to hear the cries from the place he was, it was, on the hearing of these cries he rushed towards the spot and, therefore, it must be presumed that the first blow on the person of Ami Lal must have been caused at the time when Badri Ram PW 1 could not have seen it and he must have reached the spot only thereafter and, therefore his evidence also does not explain how the incident stated and what was the genesis thereof. The conclusion is inevitable that either the prosecution purposely with held the genesis or as a matter of fact they did not know at all how the incident started. Like, Kashi he also denies the presence of Het Ram and Sayara at the spot and does not explain how they received injuries. He also does not explain the presence of stains of blood in the ‘Bhakhal’ and the ‘Aangan’ of Het Ram, when according to him this incident had taken place out side the house of Het Ram. Another witness, namely, Nathu Ram who bad been stated to be an eye-witness in the First Information Report, has not been examined by the prosecution and that also give rise to a presumption against the prosecution
9. There are some salient features which would cast a doubt about the veracity of the prosecution story, in as much as from the prosecutions’ own evidence. It appears that the incident had taken place out side the house of Het Ram father of the accused and there was no ostensible reason for Ami Lal to go there at that time. Badri Ram had, of course, tried to explain that Ami Lal had gone to pay respects to his mother, who was living with Har Dayal. It is worth noting that Har Dayal is the real brother of Badri Ram who is only the cousin of Ami Lal and there was no particular reason for Ami Lal to go for paying respects to his (Badri Ram’s) mother on that occasion.
10. Then, although according to these eye-witnesses the incident had taken place only out side Het Ram’s house from the site inspection note and the statement of the Investigating Officer Dungar Mal, it appears that there were stains of blood in the Bhakhal as also in the Aangan of Het Ram. The learned Addl. Sessions Judge had drawn upon his imagination to explain the presence of these stains of blood in the Bhakhal and in the Aangan of Het Ram by conjecturing that as stains of blood had come on the Shirt of Om Prakash on account of the injuries received by Ami Lal, drops of blood may have fallen in the Bhakhal and in the Aanagan from the shirt of Om Prakash when he went in side his house but there is no evidence to support his conjecture. It is worth nothing that the said shirt of accused Om Prakash had been recovered vide Ex.P 24 and it does not appear from this recovery memo that the shirt was so drenched in blood that drops of blood thereof had fallen in the Bhakhal and Aangan of Het Ram from this shirt. There was only trace of blood near the neck and one more spot of blood, a little down-wards. There is no other explanation coming forward from the side of the prosecution about the presence of these blood stains in the Bhakhal and Aangan of Het Ram and this also, therefore, makes the prosecution story doubtful.
11. Thus from Badri Ram’s statement, when examined after taking into consideration the other material on record as referred to above, the genesis of the prosecution story is not at all clear and as a matter or fact this, to some extent, supports the defence theory of private defence,
12. The case of the accused is that they were at their house and the deceased Ami Lal, as also the witnesses, Badri Ram, Kashi Ram and Madu Ram etc. had come there armed with deadly weapons and had tried to attack (hem and as a matter of fact injuries had been caused to Het Ram, their father and the accused Om Prakash as also his wife Smt, Supari alias Sayara and as the complainant party was still armed with deadly weapons, they still apprehended further danger including the danger of receiving grievous hurts and, therefore, they had attacked the complaint party. Smt. Supari alias Sayara picked up a spade and gave a blow on the head of Ami Lal and Chandro sister of Om Prakash gave a blow to Badri Ram. As already stated above, the prosecution has not come forward with any satisfactory explanation of the injuries on the persons of Het Ram and Sayara. Of course, Badri Ram has tried to explain the injuries on the person of the accused Om Prakash by saying that he bad struck him with a twig of a bush but this clearly appears to be an after thought because he had not stated so either in the First Information Report or before the police and when he found that Om Prakash had received an injury during the course of this incident, he came up with this explanation. In these circumstances, this explanation cannot be accepted.
13. The accused cannot be said to have exceeded their right of private defence in the circumstances of this case. As has already been stated above, it is not at all clear from the prosecution’s evidence how and by whom the first blow on the head of Ami Lal came to be caused. Thereafter he had received two more injuries; one by a sharp edged weapon and the other with a blunt weapon from the wrong side of the ‘kassi’. It is not the case of the prosecution that any serious injury had been caused to him after he had fallen down and only a blow is alleged to have been given from the wrong side of the kassi after he had fallen down and that injury is a mere abrasion 6″ x 1/4″ on the right side of the chest and has been described as a simple injury by blunt weapon by the doctor. Therefore, till the complainant party had completely been disarmed or had left the place, the apprehension of grievous hurt continued to the accused persons and they could have therefore caused injuries to the complainant party in order to disarmed them and avert the apprehension of such grievous hurt. This is all the more so, when injuries bad been caused to more than one person by the complainant party.
14. From the prosecution’s evidence all that can be said is that the accused Om Prakash had caused one injury on the bead of the deceased by a sharp edged weapon and probably one simple injury with a blunt weapon on his side after he had fallen down and accused Shiyo Prakash has only been attributed one simple blow on the person of Badri Ram. Therefore, they cannot be said to have, in any way, exceeded the right of their private defence.
15. Thus viewed at from either angle, it is clear that the conviction of the appellants is not proper and cannot be sustained.
16. We, therefore, allow this appeal, set aside the conviction of the appellant Om Prakash under Section 302, IPC and the sentence passed thereunder- We also set aside the conviction of the appellant Shiyo Prakash under Section 323, IPC and the sentence passed there under. They are acquitted of their respective charges. Om Prakash is in custody and shall be set free at once, if not required in any other case.