ORDER
Mohd. Yamin, J.
1. This is an appeal by State against acquittal of the accused respondents who faced trial under Sections 304, 447,323, IPC before learned Sessions Judge, Balotra. Leave to appeal was granted on 31-1-1985 by this Court.
2. Briefly stated, the facts of the case are that on 25-12-1983 Chhattar Singh lodged a report at Police Station Shiv District Barmer alleging that when he was working at his field accused respondents Pura, Veerma and Bhoja came armed with lathis on 25-12-1983 at 6.00 p.m. They abused him and then Bhoja gave lathi blow to Chhattar Singh. Chhattar Singh fell down. Then two other accused persons gave him lathi blows. The injured made hue and cry. Then Nakhta Ram and Bheema Ram came to his rescue. Nakhta Ram was also beaten by lathis. On lodging this report at 7.30 p.m. case under Sections 447, 323, IPC was registered. Later on condition of Nakhta Ram became precarious and he was referred to Ahmedabad Hospital where he died. Then the case was converted to Section 302, IPC. However, after investigation police submitted challan under Sections 447, 304 and 323, IPC. Accused respondents faced trial before learned Sessions Judge, Balotra for offences under Sections 447, 304 and 323, IPC where they denied charges. Prosecution examined as many as 13 witnesses in support of its case. Accused respondents were examined under Section 313, Cr.P.C. They also examined three witnesses in their defence. Learned Sessions Judge, vide his judgment dated 2-8-1984, acquitted the accused respondents as stated above.
3. I have heard learned Public Prosecutor as well as learned counsel for the accused respondents at length and have gone through the record.
4. Learned Public Prosecutor submitted that the theory of defence that the accused respondents were in occupation of the field has been erroneously believed and that the accused respondents had no right of private defence. He also submitted that the accused persons were the aggressors as they were armed with weapons and the complainant party was not having any weapon. He submitted that in view of Jaipal v. State of Haryana, 2000 AIR SCW page 962, a party which is armed with lethal weapons is to be regarded as aggressor. He submitted that the acquittal be converted into conviction.
5. On the other hand learned counsel for the accused respondents submitted that there is no evidence that it was the complainant party who was in possession of the field. Attention was drawn to Ex. P/7 which is the Khatauni and which mentions Patta son of Ratna as tenant of the disputed field. He submitted that this Ratna was the father of Pura Ram accused respondent and that the case of the accused respondents right from the very beginning was that they were in possession of the field where the complainant party sent its goats. He submitted that according to the version of defence the incident did take place but it were the accused respondents who suffered injuries for which there is no explanation. They had also lodged report with the police.
6. I have to reappreciate the evidence led by prosecution in this case. First of all the question arises as to who was in possession of the field. Let us start with the site plan Ex. P/2. The prosecution alleges that the field belongs to Bheema and the site plan also mentions place “B” where occurrence took place. PW-1 Derawar Singh states that the police inspected the site before him and the place “B” was in possession of accused respondent Pura. PW-13 Ranjeet Singh is the Investigating Officer to whom first information report was lodged by Chhattar Singh. He inspected site and prepared site plan Ex. P/2 and the memo Ex. P/1. He obtained the jamabandi Ex. P/7 and trace Ex. P/8 from the patwari. PW-5 Shankar Lal patwari proves these documents but as I have already stated they show the name of Patta son of Ratna and not of Chatra Ram. Chatra Ram mentions in the first information report that at about 6.00 p.m. when he was working in his field the accused respondents came and abused him and gave him beatings which appears to be incorrect version. PW-12 Chatra Ram has been examined on behalf of the prosecution and he is the main witness. He stated that his field was situated on the border. According to him the genesis of the incident was that his brother Alsa was slapped by Pura accused respondent and asked that goats should not be brought towards his field as they will damage his crop. Then Chatra Ram asked Pura as to why did he slap his minor brother and then incident started. So even Chatra Ram accepted that there was crop of accused Pura in the field. In the very first line of the cross-examination the witness accepted that the crop belonging to accused was standing in the field. The other witnesses accept that the field was not in exclusive possession of the complainant party. PW-6 Bheema Ram admitted in cross examination that the field where occurrence took place was a joint one and both the parties were owners. According to him the patta of the field was in the name of his father as well as of the accused respondents. PW-6 Bheema Ram and PW-7 Moola admitted that at the place where occurrence took place the crop of ‘raida’ and mustard belonging to the accused party was standing. Moola accepted that Puracame to him and asked not to graze goats there as they were likely to damage his crop. From all this evidence it is proved beyond doubt that the field where occurrence took place was not in exclusive possession of the complainant party. Therefore, the accused respondents have been rightly acquitted from the offence under Section 447, IPC. They had every right to defend their crop which was standing at the place of occurrence.
7. The most interesting feature in this case, I find, is, that even the accused persons had lodged a report to the police but its fate is not known though Investigating of ficer Ranjeet Singh PW-13 was asked in so many words to let the Court know as to what happened about that report. He stated that he investigated about the report lodged by Pura accused respondent and its result was told to Pura. But the witness wants to hide the result from the Court. This was a very strange demeanour of the witness observed by the trial Court. All said and done the prosecution was not able to prove that it were the accused respondents who were aggressors in this case. It is proved beyond doubt that they suffered injuries on vital parts of their bodies.
8. When it is proved that the respondents were not the aggressors, the natural corollary is that whatever they did, they did so in right of their private defence of person and property. The case of the prosecution is, as per the statements of eye witnesses PW-6 Bheema Ram, PW-7 Moola and PW-12 Chatra Ram, that Chatra Ram was at the “Khala” of his field where Bhoja came armed with a lathi and attacked on his head. He fell down and then Pura and Virma came who also gave blows by lathi. His father came. Then Bhoja attacked on him and inflicted injury on his head while Virma also inflicted injury on his head. It was Chatra Ram who stated the genesis of the occurrence by saying that Alsa was asked by Pura not to graze his goats in the field of the accused respondents where crop was standing. Then Chatra asked Pura as to why Alsa was slapped and thereafter the incident took place. This fact has not been stated in the first information report by this witness and even in his examination in chief he did not tell this genesis, but when he was subjected to cross-examination he came out with this story, which appears to be true. PW-7 Moola stated that his younger brother Achla was after the goats which were grazing in the field of the accused persons. He was slapped by Pura. Thereupon Chatra came and asked as to why he was slapped and then incident started. His father came after hearing hue and cry and then it is stated that the accused respondents attacked on him. In the cross-examination the witness has admitted that the field which was in possession of the accused respondents was having the crop of ‘raida’ and mustard where the brother of the witness was grazing goats. There are contradictions in the statements of Moola PW-7 and Chatra PW-12 with regard to the occurrence. Chatra states that all the three accused respondents along with Multana came armed with lathis while Nakhta Ram is stated to have been given beatings by Bhoja and Virma. According to PW-7 Moola, accused respondent Pura asked Bhoja to bring lathi and when he brought it, this accused respondent inflicted injury to Chatra and Nakhta both. Learned Sessions Judge has discussed the evidence of all these witnesses in paras No. 6 and 7 of his judgment and has come to the conclusion that these contradictions are fatal to the case of the prosecution.
9. It is an admitted fact that the accused persons suffered injuries which are mentioned in Ex. D/5 and Ex. D/6. Pura had five injuries while Virma had one. Injuries on both of these accused respondents were situated on their heads. Pura was an old man of 60 years and suffered as many as five injuries on his head. The prosecution has denied the injuries on the person of the accused respondents and has not given any explanation. It has been held by Hon’ble Supreme Court in AIR 1976 SC 2263:(1976 Cri LJ 1736), Lakshmi Singh v. State of Bihar, that when there is no explanation of injuries sustained by accused, the following inferences can be drawn :-
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case.
10. When the injuries on the persons of accused persons are not explained, it is fatal to the prosecution. In the circumstances it car. be safely held that the defence of the accused respondents is correct. The accused respondents have taken the defence that the crop of the accused respondents was being damaged by the animal folk of the prosecution witnesses which gave rise to the incident. In such circumstances it can be presumed that accused respondent Pura might have slapped Achla Ram, a minor boy, and thereupon Nakhta Ram, Chatra Ram and Bheema Ram came and then gave beatings to Pura Ram and in defence Virma and Bhoja inflicted injuries on the head of Nakhta Ram and a superficial injury on the body of Chatra Ram. According to the learned coun sel for the defence the finding of the trial Court on this count should not be disturbed as in view of Hon’ble Supreme Court judgment in State of Uttar Pradesh v. Nahar Singh (dead) (1998) 2 JT(SC) 41: (1998 Cri LJ 2006), while reassessing the evidence the appellate Court should take the view which supports acquittal.
11. Accused respondent Pura had following five injuries on his body :-
(1) Lacerated wound 3″ x 14″ situated on head obligal left to right in position. The front end of wound 4″ from globelle.
(2) Lacerated wound 1″ x 1 /8″ on left side of face semi circular just below the left eye in maxilary region \W below the upper obital.
(3) Lacerated wound 333/4″ x 1/4″ situated on forehead left side transverse in portion along with upper border of left orbit and 2″ away from the midline of forehead in left side.
(4) Bruise 2″ x 1/4″ parrallel to nosolatrial fold on left side of face, oblique in position.
(5) Swelling left upper and lower eye lid swollen with ill defined margin, redish blue in colour.
12. Accused respondent Veerma had following injury :-
(1) Lacerated wound 11/2″ x 1/4″ situated on right parietal prominance of head, vertical in position (from above-downwards) 3″ above the base of right ear.
13. They are all on their heads which are vital parts.
14. Learned Public Prosecutor submitted that the accused respondents exceeded their right of private defence. Hon’ble Supreme Court in AIR 1980 SC 660 : (1980 Cri LJ 459), Yogendra Morarji v. State of Gujarat, has set out the extent and the limitations on the exercise of right of private defence of body. It observed :-
(1) there is no right of private defence against an attack which is not in itself an offence under the Code;
(2) the right commences as soon as-and not before – a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is coterminous with the duration of such apprehension. Accordingly, the right avails only against a danger imminent, present and real;
(3) it is a defensive and not a punitive or retributive right. Consequently, in no case, the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence. At the same time, it is difficult to expect from a person exercising this right in good faith to weigh golden scales what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bona fide defender, if he with the instinct of self preservation strong upon him, pursues his defence with a little further than may be strictly necessary in the circumstances to avert that attack. It would be wholly unrealistic to expect of a person under assault to modulate his defence step by step according to the attack;
(4) the right extends to the killing of the actual or potential assailant when where there is a reasonable and imminent apprehension of the atrocious crime enumerated in the six clauses of Section 100. The combined effect of the first two clauses is that taking the life of an assailant would be justified on the plea of private defence, if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right;
(5) there must be no safe or reasonable mode or escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm except by inflicting death on the assailant; and
(6) the right being, in essence, a defensive right, does not accrue and avail where there is time to have recourse to the protection of the public authorities.
15. So far as right of private defence of property is concerned, it was available to the accused respondents when their crop was being damaged by goats before them. However, the injuries were caused to the complainant party only after the accused persons were attacked who suffered injuries as stated above. They had every right to defend their person and property. I am of very clear view that the learned Sessions Judge did not commit error in acquitting the accused respondents. In an appeal against acquittal interference can be made by appellate Court only in case of perversity or misreading of evidence. It was so held in Ashok Kumar v. State of Rajasthan (1991) 1 SCC 166: (1990 Cri LJ 2276). I do not find such perversity or misreading of evidence in this case.
16. Consequently, there is no force in this appeal and it is hereby dismissed.