JUDGMENT
S.K. Chawla, J.
1. The State has filed this appeal challenging the acquittal of the respondents of the alternative charges under Sections 302 and 302/34, Indian Penal Code for the murder of one Harhuram.
2. Deceased Harhuram was a resident of village Kachanda, P. S. Seorinarayan, District Bilaspur. Just opposite to the thrashing ground of his house, there exists the house of Sukritdas (DW 2) with a public road between them. Some hot words were exchanged between deceased Harhuram and Sukritdas at the time of the incident i.e. on 30-12-1982 at about 7 a.m. At that time respondent No. 1 Mohandas, who is son of Sukritdas, had come out of his house armed with a lathi. It is not disputed that he had dealt a lathi on the head of the deceased Harhuram causing him to be injured.
3. The prosecution alleged that the incident started because Sukritdas (DW 2) began to forcibly remove the gate (Rachar) of the thrashing ground of deceased Harhuram. This led to exchange of words between the deceased and Sukritdas. Respondent No. 1 Mohandas getting annoyed, assaulted deceased Harhuram by a lathi on his head. Respondents Nos. 2 and 3 Dilharandas and Punidas, who are father and son, and who were closeby, also rushed to the place of the incident and they too dealt one lathi blow each on deceased Harhuram. Harhuram was carried in an unconscious condition to police station Seorinarayan where his son Ramnarayan (PW 1) lodged a report (Ex.P-1). Harhuram was medically examined with respect to his injuries vide injury report Ex.P-3. He was found to have sustained a small lacerated wound 1/4 cm x 1/2 cm over the right frontal forehead and a haematoma 2 cm x 2 cm over the left occipital parieto region behind the left auricle. Harhuram was rushed for treatment of head injury to Bilaspur civil hospital, but he succumbed to his injuries on 31-12-1982 at 2.20 a.m., vide intimation from the hospital Ex.P-9. In post mortem examination, Dr. Tiwari (PW 17) found the two injuries mentioned in the injury report Ex.P-3 already referred to. Upon internal examination the doctor found that there was fracture of left parietal region and fracture of left occipital and temporal bones. Dura was distended and filled with blood. The cause of death was cerebral compression and axphyxia resulting therefrom vide post mortem report Ex.P-23. On these allegations, the three respondents were charged with offences under Sections 302 or 302/34, Indian Penal Code for committing murder of Harhuram.
4. The defence of respondent No. 1 Mohandas was that his father Sukritdas (Dw 2) had been assaulted with a lathi by deceased Harhuram. Mohandas had, therefore, rushed to save his father and had given a single blow with a lathi on the head of the deceased to save his own father. He had, therefore, acted in exercise of the right of private defence of the body of his father and had committed no offence. The defence of the other two respondents was that they played no part at the time of the alleged incident and were falsely implicated.
5. After trial, learned Additional Sessions Judge, Bilaspur held that respondent No. 1 Mohandas was the sole assailant of deceased Harhuram. The other two respondents had been falsely implicated. Respondent No. 1 Mohandas had acted to save his own father Sukritdas. He dealt but one lathi blow on the deceased. He committed no offence because he acted in exercise of the right of private defence of the body of his father. On these findings, all the three respondents were acquitted by the learned trial Court. The State has now come up in appeal challenging the acquittal of the respondents.
6. The acquittal of respondents Dilharandas and Punidas was perfectly justified. The initial prosecution story was given in the FIR Ex.P-1 lodged by Ramnarayan (PW 1), who is son of the deceased. The story at that time was that respondent Mohandas had dealt three lathi blows on deceased Harhuram on his forhead, on the back of his head and on the waist respectively. Punidas who is a Kotwar of the village (respondent No. 3 herein) and his son Dilharan das (respondent No. 2) reached the place of the incident at that time with lathis in their hands. But at that time, many people had collected and hence they could not assault the deceased. The prosecution examined Ramnarayan (PW 1), Siyaram (PW 3), Amrika Bai (PW 4), Ramchand (PW 5), Bharatlal (PW 13) and Dasmati Bai (PW 16) as eye witnesses. Dasmati Bai (PW 16), who is a neighbouring lady, freed herself by deposing that she saw from the door of her house that respondent Mohandas had dealt a lathi blow on the head of deceased Harhuram. Thereafter she went inside her house and closed the door behind her. She thus confined herself to the narration of the prosecution story limited to assault by accused Mohandas on the deceased. The other eye witnesses, however, tried to improve upon the origingal prosecution version by deposing that accused Mohandas had dealt only single lathi blow on the head of the deceased, while the other two accused Dilharandas and Punidas had also dealt one lathi blow each on deceased. With respect to this improvement, the prosecution witnesses were contradicted with FIR and their contrary police statements. The learned trial Judge after appreciating the evidence of eye witnesses, not unreasonably, came to the conclusion that accused Dilharandas and Punidas had played no role in the assault on the deceased. They were, therefore, properly acquitted.
7. The question for consideration is whether respondent No. 1 Mohandas acted in exercise of the right of private defence of the body of his father in assaulting the deceased. It clearly emerged from the prosecution evidence that incident started with Sukritdas (DW 2) trying to forcibly remove the gate of thrashing ground of deceased Harhuram. The thrashing ground of deceased Harhuram was situated on his own land. Hence possibly the gate of that thrashing ground was also situated within that area. Even assuming that the gate was an encroachment, it was an encroachment on Govt. road. Sukritdas (DW 2) had no business to take the law in his own hands and to try to forcibly remove the gate. His act in law amounted to the offence of mischief. Deceased Harhuram was justified in protesting against the forcible removal of the gate by Sukritdas. It is also possible that when Sukritdas might not have heeded to the protests of deceased Harhuram, the later might have assaulted Sukritdas (DW 2) by a lathi, explaining small lacerated wound over the left pall and a bruise over right shoulder of Sukritdas vide injury report Ex. P-6. The version of Sukritdas (DW 2) himself that he was assaulted with a lathi by deceased Harhu may be taken to be correct. The question is whether in that situation, Sukritdas’s son respondent No. l Mohandas could have assaulted the deceased in alleged self-defence of his father. The learned trial Judge committed a mistake of law in holding that Mohandas acted in defence of his father. Mohandas had in fact no right, because the alleged assault by the deceased on Sukritdas was not at all an offence. It was an act done in exercise of right of private defence of property to prevent further damage being caused to the gate by Sukritdas. The alleged assault by the deceased on Sukritdas was hence not an offence. It is only against an offence that the law gives right of private defence. Right of private defence cannot be claimed against an act which is itself in exercise of the right of private defence. See Kishan v. State of Madhya Pradesh, AIR 1974 SC 244. Sikritdas was himself a wrong doer or an aggressor, who could not have beaten the deceased in return, much less his son respondent Mohandas could have done so. The learned trial Court was clearly in error in holding that respondent Mohandas acted in exercise of the right of private defence of the body of his father Sukritdas.
8. It would appear from the injury report (Ex.P-3) as also from the post mortem report (Ex.P-23) that deceased Harhuram had received two injuries on his head almost in opposite directions. Thus a lacerated wound was caused to him on right forehead while haematoma was caused to him on the left occipito parietal region. Thus the first injury was on the right while the second injury was on the left. So also whereas the first injury was on the frontal region, the second injury was on the back region i.e. occipito parietal region. The prosecution evidence that two lathi blows were dealt on the head of the deceased deserves to be accepted. No doubt Dr. Tiwari (PW 17) happened to admit in his cross-examination that the fracture in the skull bones, which he found in the post mortem examination, could have been caused by a single blow. It appears that the fracture was caused below the second injury located at the left occipito parietal region. No fracture appears to have been caused below injury on the right forehead. Hence, the above-said admission that fracture was caused by a single blow could not mean that only one lathi blow was dealt on the head of the deceased. If two lathi blows were dealt on the head of the deceased, which is also the prosecution evidence, there can be no doubt on the case found that both the blows were dealt by respondent Mohandas. It is doubtful if Mol andas inflicted a third lathi blow on the waist of the deceased because no such injury on the deceased was detected in medical examination.
9. In the above context, the question that still remains for consideration is what offence had Mohandas committed by dealing two lathi blows on the head of the deceased. One of the two injuries had caused fracture of left occipital temporal bone. The dura in the brain was distended and filled with blood. Dr. Tiwari (PW 17) stated that head injuries were sufficient in the ordinary course of nature to cause death. He ought to have given his opinion separately about each head injury. It is doubtful if the injury on the forehead with no underlying fracture was also sufficient in the ordinary course of nature to cause death.
10. It is evident that Mohandas acted without premeditation. He was suddenly aroused on seeing his father Sukritdas being beaten by deceased Harhuram. The injuries inflicted by respondent Mohandas were caused in a sudden fight in the heat of passion without Mohandas taking undue advantage or acting in a cruel or unreasonable manner. Exception 4 to Section 300, Indian Penal Code was clearly attracted. Respondent Mohandas had therefore committed an offence under Section 304, Indian Penal Code only. Considering the kind of injuries inflicted by Mohandas, he may be credited with the intention of causing such bodily injuries as were likely to cause death. In other words, the offence committed by him was under part I of Section 304, Indian Penal Code.
11. We have heard counsel for both the parties on the question of sentence. A peculiar feature of this case is that respondent Mohandas could not furnish bail in this appeal against acquittal, with the result that he has been in continuous detention ever since January, 1986 i.e. since more than 5 years from now. He was also in detention during trial of the case from 2-1-1983 to 24-8-1984, when the trial court gave the judgment of acquittal. In other words, he remained in jail as an undertrial prisoner for 19 months and 22 days. The question for consideration is, if the detention of respondent Mohandas during the pendency of this appeal can be set off against any sentence of imprisonment that may be inflicted on him by this Court. The question turns on the interpretation of the expression “investigation, inquiry or trial” used in Section 428, Criminal Procedure Code, 1973, and more particularly on the word “trial” used therein. Are the proceedings in this appeal also part of the trial ?
12. In civil matters, there is no doubt that an appeal is continuation of a suit and is in the nature of a re-hearing. In criminal matters the Supreme Court while interpreting the provisions of Section 494, Criminal Procedure Code, 1898 in the case of State of Bihar v. Ramnaresh, AIR 1957 SC 389, had the following to say while interpreting the word “tried” used in that provision : –
“The words ‘tried’ and ‘trial’ appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code the words ‘tried’ and ‘trial’ have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in other context in the Code, they should necessarily be limited in their ‘annotation and significance. They are words which must be considered with regard to the scheme and “purpose of the provision under consideration….. It may also be mentioned that the words ‘inquiry’ and ‘trial’ were both defined in the Code of 1872 but that the definition of the word ‘trial’ was omitted in the 1882 Code and that later on in the 1898 Code the definition of the word ‘inquiry’ was slightly altered by adding the phrase “other than a trial” leaving the word ‘trial’ undefined.”
13. The word “trial” was expressly held to include an “appeal” in these decisions: Madhub Chunder Mazumdar v. Novodeep Chunder Mazumdar, ILR 16 Cal 121, Nistarini Debt v. A. C. Ghose, ILR 23 Cal. 44, Bansilal v. The Emperor, 12 Cal. Weekly Notes 438, and Queen Empress v. Subbayya, ILR 12 Mad. 451. More recently, while interpreting the provision for free legal assistance to an accused at State expenses during trial, it was held by Shri K. L. Shrivastava, J. (as he then was) in the case of Sekadiya v. State of M.P., 1989 M.P.L.J. 435, 1989 JLJ 603, that the expression ‘trial’ includes an “appeal” as well.
14. Considering the context in which the word ‘trial’ has been used in Section 428, Criminal Procedure Code and the object and purpose underlying that provision, we are of the opinion that the word ‘trial’ used in that provision includes also proceedings in appeal, like those in the instant appeal. We are of the view that respondent Mohandas is entitled to the benefit of set off even for the detention he has suffered in this appeal. Considering the fact that he has suffered total detention of approximately 6 1/2 years we think that he has already suffered enough.
15. For the foregoing reasons, this appeal is partly allowed. The acquittal of respondent Mohandas is set aside. Instead, he is convicted of the offence under Section 304, Part I, Indian Penal Code for causing the death of Harhuram. He is sentenced to imprisonment equivalent to the detention already suffered by him. In consequence he shall be released forthwith, if not required in any other case. The acquittal of respondents 2 and 3 Dilharandas and Punidas is maintained. They are on bail. Their bail bonds shall stand discharged.