N.C. Dwivedi, J.
1. The two appellants Saitua and Jhunna were prosecuted under Sections 302 and 302/34 of the Indian Penal Code in two Sessions Trials 100 and 101 of 1970 of the Court of Sessions Judge. Chhatarpur and were convicted under Section 304 (Part I) and 304 (Part D/34 of the Indian Penal Code in two trials, and were sentenced to undergo rigorous imprisonment for a period of five years. The sentences in the two trials were ordered to run consecutively.
2. Ratiram (P.W. 2) is the resident of village Ujra where the two deceased Balkishan and Kaluta and the two appellants also lived. The appellants are brothers so also the two deceased. Ratiram (P.W. 2) is the brother of one Khitua, Nathusingh (P.W.3), Bihari (P.W. 6), Goli (P.W. 7) and Chunni (P.W. 8) are the graziers of cattle and she-goats. The deceased Balkishan was the nephew of Bhaiyadeen, Chikua (P.W. 1) is the uncle of Balkishan, Balkishan and Bhaiyadeen were prosecuted for the murder of one Paramlal. Last year, the appellant Saitua had a quarrel with the wife of Chikua. The two deceased went to the house of Saitua to beat him but seeing them. Saitua closed his doors. There the two deceased declared that he had now escaped but they will see him in future. Even before this incident, the two deceased had surrounded the appellant Saitua who fled away. The relations between the two deceased and the two appellants were thus sufficiently strained.
3. The prosecution case is this:
Goli (P.W. 7) was grazing the cattle belonging to the deceased. He felt thirsty and went away to drink water leaving the cattle grazing. Chunni (P.W. 8) is the brother of Goli (P.W. 7) and was also grazing the cattle and the she-goats. The cattle and the she-goats entered inside the field of the appellants. The appellant Jhunna rounded them and drove them out of the field for taking them to the cattle pound. Goli (P.W. 7) went to the deceased Balkishan and informed him that the appellant Jhunna was taking away the cattle to the cattle pound. Chunni (P.W. 8) informed Kaluta that the appellant Jhunna was taking away the cattle. The deceased Balkishan armed with a Kholia and an axe and Kaluta armed with Kholia rushed to rescue the cattle. Ratiram (P.W. 2) also went there but Jhunna eave a lathi blow on his head and they began grappling, Khitua brother of Ratiram also came there and inflicted two lathi blows on Jhunna while Jhunna and Ratiram were grappling.
4. Nathusingh (P.W. 3) and Manoharsingh (P.W. 4) also reached there. The appellant Jhunna assaulted Kaluta and the appellant Saitua assaulted Balkishan with axes. The appellants continued their axe assaults on Balkishan and Kaluta even after they had fallen down. Thereafter the two appellants ran away leaving the two victims dead there.
5. Chikua (P.W. 1) went to the Malhara police out post and lodged the first information report (Ex. P. 1) at 7.30 p.m. Dr. Jain (P.W. 16) examined Ratiram and as per report (Ex. P-20) found swelling on the posterior Dart of the left parietal region. Its size was 1' x 1', blood clots were present around the swelling. The injury could be caused by hard and blunt object.
6. Dr. Jain (P.W. 16) examined the appellant Jhunna and as per report (Ex. P-21) found incised wound on the left parietal region 4' x ' x bone deep. Margine were clear and regular. Blood clots were present. Swelline (Bruise) on the left wrist. 2' x 2' bluish in colour and a abrasion on the left knee 1' x ' scab had formed. The incised wound could be caused by an axe while the other two injuries could be caused by hard and blunt object.
7. Dr. Singhal (P.W. 17) per formed the post mortem examination and as per report (Ex. P-22) found the following marks of external injuries on the person of Kaluta:
(1) Incised wound on the parietal temporal bone of left side. The brain matter was visible. Injury was 5' x 1' x 4' in dimension.
(2) Incised wound on frontal bone right side medial angle of the orbit. Dimensions 4' x 1' x 2'
(3) Incised wound on the neck left side 4' x 1' x 3'.
(4) Incised wound on the lateral and upper part of the left arm 2' x ' x '.
(5) Incised wound on the left scapular region 3' x 1' x 1'.
On internal examination. Dr. Singhal found that the deceased Kaluta had sustained two fractures of the skull bone. The brain matter was visible underneath the fracture. The underneath structure in the neck inside the injury No. 3 had been cut including the blood vessels and the muscles. According to the doctor (P.W. 17), Kaluta died as a result of the fracture of skull bone leading to the injuries on the brain proper. These injuries could be caused by sharp cutting weapon and were sufficient in the ordinary course of nature to cause the death of the victim
8. Dr. Singhal (P.W. 17) performed the post mortem examination and as per report (Ex. P-23) found the following external injuries on the person of Balkishan:
(1) Incised wound on left scapular region 1' x ' x '.
(2) Incised wound on left shoulder, 1' x ' x '.
(3) Incised wound on left side of the skull extending from left maxillary to left parietal bone. Brain matter was protruding out. Dimensions of the injury were 4' x 1' x 1'.
(4) Incised wound on nape of neck, i.e. on the back side extending from back of the left ear to the right ear, cutting 1st to 3rd vertebra of oesophagus dimensions were 6' x ' x 4'.
Dr. Singhal on internal examination found that there was incised cut at the leval of 2nd cervical vertebra of oesophagus. First to third vertebral were cut. The skull bone had been fractured from the left maxillary to the left parietal bone of the skull. The brain matter underneath was exposed and was protruding out. The oesophagus had been cut. Dr. Singhal stated that Balkishan died as a result of the injuries to spinal cord caused by sharp cutting instrument like an axe. The injuries were sufficient in the ordinary course of nature to cause the death of the victim.
9. The two appellants stated that Ratiram, Khituwa, Balkishan and Kaluta assaulted them with lathis and Kulharis and that they acted to defend themselves.
10. The trial Court after scrutiny of the evidence concluded as follows:
(i) There is no reason to disbelieve the statement of Goli and Chunni and it is brought out by them that on coming to know of the fact that their cattle were being taken by Jhunna to the cattle pound the deceased Balkishan and Kaluta, variously armed, rushed towards the place of incident.
(ii) It is thus brought out clearly that the dispute between the accused and the deceased persons took place in consequence of the damage caused to the appellant's Junhari crop and the attempt of the appellant Jhunna in taking the cattle to the cattle pound.
(iii) The presence of the incised injury on the head of the accused Jhunna coupled with the unsatisfactory statement of eve-witnesses on the point as to who was the aggressor, raises strong probability that it were the deceased persons who were the aggressors and initiated the assault on the accused with the axe.
(iv) There is a strong probability that it were the deceased persons and not the accused who were the aggressor.
(v) The probabilities rendered it more probable that the deceased persons who had rushed to the place of incident armed with an axe and Kholia launched the attack in order to rescue the cattle or to settle old accounts with the accused persons.
11. The trial Court while holding that there existed a right of defence of persons in favour of the appellants, held that they had exceeded that right because they continued to inflict blows on the victims even after they had fallen down.
12. The question for decision in these appeals is whether the appellants had exceeded their right of defence of person.
13. There is definite evidence that the deceased and the appellants were always at logger heads and the deceased persons were always having the upper hands. Ratiram (P.W. 2) stated that the appellant Saitua had a quarrel with the wife of Chikua and Balkishan and Kaluta had gone to assault him. Saitua saved himself by closing his doors. The two deceased stood out side and continued hurling threats and declaring that he was saved now but they will see him in future. Ratiram also admitted to have made a statement in the Committal Court that the two deceased surrounded the appellant Saitua in the field but Saitua escaped. These incidents were serious in character and established that the two deceased had bad blood with the appellants and the two deceased had always been aggressive towards the appellants.
14. There is definite evidence that the cattle of the deceased Ratiram (P.W. 2) and Khitua damaged the appellants' crop [Chunni (P.W. 8) Haridas (P.W. 9) and (Panchanama Ex. P-10]. There is also evidence that the two appellants were taking the cattle to the cattle pound and their action was justified because of the damage done to their crop. The reaction of the deceased to this was violent and they took the appellants' act of taking the cattle to the cattle pound to be an affron to them, Ratiram (P.W. 2) stated that Balkishan came running armed with Kholia and axe. He also stated that from one side, the two deceased and from other side, the two appellants rushed towards each other (Paragraph 11 of the deposition in the Court of Session). Nathusingh (P.W. 3) saw Balkishan rushing with axe and Kholia. Balkishan declared that they have driven away their cattle and threatened the accused persons that they would fall to the ground if he dealt an axe blow on them. At this Jhunna suddenly raised his axe and dealt a blow on the neck of Balkishan on the back side. Balkishan fell down on the ground (Paragraph 1 of the deposition). Bihari (P.W. 6) stated that Balkishan obstructed the taking of the cattle by the appellant Jhunna. Goli (P.W. 7) stated that on being informed that the appellant Jhunna. was taking away the cattle, the deceased Balkishan armed with Kholia and axe rushed towards the place where the appellant Jhunna was taking away the cattle. Chunni (P.W. 8) stated that on being informed, Kaluta rushed with lathi. He also stated that Kaluta's mother forbade him from Quarrelling but Kaluta paid no heed and went away.
15. The above evidence showed the reaction of deceased to an otherwise lawful act of the appellants and exhibited them as being excited to the extreme fully determined to rescue the cattle by use of force. This background will be material to view the occurrence in its correct perspective and whether the persons faced with such perilous situation could be expected to be cool minded or would they act with swiftness to meet the danger in the manner which they then thought best.
16. With this background, I will discuss the circumstances which weighed with the lower Court to hold that the appellants assaulted the fallen victims Ratiram (P.W. 2) stated that the appellants gave 4-5 blows to each of the two victims who had fallen down (Paragraph 2 of the deposition) which shows that the attack continued till the victim fell down and not after that. In paragraph 13 of his deposition, Ratiram (P.W. 2) made a categorical statement that Balkishan and Kaluta after the attack fell on either side of the road and after they had fallen down marpit stopped. In view of this clear admission, it could not be urged that the attack continued on the fallen victims.
17. Nathusingh (P.W. 3) stated that Balkishan fell down and the appellant Saitua continued the axe assault on him. The appellant Jhunna gave axe stroke on fallen Kaluta. Then he stated that he saw Kaluta receiving 4 or 5 strokes and not 10 or 12. He was confronted with Ex. D. 3 about the number of strokes. There is clear indication that he had exaggerated the number of strokes. In view of this, his evidence cannot be accepted that the assault continued after the victims had fallen down.
18. Manoharsingh (P.W. 4) stated that he saw the appellants giving 2-3 axe strokes each to the victims. He is definite that he saw the appellant dealing axe blows while the victims were standing (Paragraph 2 of the deposition). Then he went away to the village after the marpit was over. There is material omission in Ex. D. 4 that he saw the fallen victims or that the deceased were assaulted after they had fallen down. Then he contradicting his statement in examination-in-chief stated that he saw the assault on fallen victims and denied that the marpit stopped when the victims had fallen down. In the police-diary statement (Ex. D. 4), there is no reference that he saw the assault on the fallen victims. His evidence besides being vacillating is positive that the attack was on standing victims and the material omission from the case diary statement indicated that he was improving his version to establish that the attack was continued even after the victims had fallen down. Gulabsingh (P.W. 5) also attributed to the appellants an attack on the fallen victims. In Ex. D. 5, there is no mention that he saw the assailants assaulting the fallen victims. This omission is significant and indicated that Gulabsingh (P.W. 5) was also improving his version to show that he saw the assault on the fallen victims.
19. In view of the above state of prosecution evidence, it cannot be held positively that the attack continued after the victims had fallen down. The admission of Ratiram (P.W. 2) in paragraph 13 clinched the issue and the trial Court failed to properly appreciate this admission as also the material omissions in the case diary statement Ex. D. 4 and Ex. D. 5, The finding of the trial court that the attack continued after victims had fallen down is contrary to the statements of the witnesses as above. Disagreeing with the trial court, I hold that the attack on the two victims stopped after they had fallen down and as such the very foundation of the lower Court's conclusion of exceeding right of defence of person has no basis.
20. The evidence of Dr. Jain (P.W. 16} disclosed that the appellant Jhunna had injuries on his person-one was an incised wound on left parietal region 4' x 1' x bone deep. According to him, it could be caused by an axe. The prosecution witnesses have disowned the injury on the person of the appellant Jhunna and offered no explanation how this injury was caused to him. This indicated that prosecution witnesses were not giving a truthful account of what actually transpired and, therefore, their statement that the attack continued on the fallen victims cannot be accepted, more so when Ratiram (P.W. 2) made a clear statement demolishing the theory of attack on the fallen victims.
21. I will now refer to the legal position regarding the exercise of the right of defence of person.
22. In Victor alias Kallu v. State of Madhya Pradsh 1966 MPLJ 877 it is held:
These decisions show that no such circumstances to bring the case of an accused within an exception shall be presumed unless he has introduced evidence on the point by cross-examination of the prosecution witnesses or by adducing defence evidence or by stating the circumstance in the examination under Section 342, Criminal Procedure Code, if such statement read with the circumstances brought out creates a reasonable doubt that the plea may be true. The burden does not, in other words, extend to proving the defence affirmatively but the probability of the truth of the defence must be reasonably probable. This does not mean that mere statement of the accused is enough; but what is necessary is that it must be reasonably proble'.... It is true that the appellant gave three or four blows on the chest when probably one would have been enough to disable Shyamlal. However, for this reason alone it cannot be said that the appellant exceeded his right of private defence. He acted in the heat of moment. He could not have any time to deliberate when he should have stopped. Accordingly, I hold that his case fallsfully under Section 100 of the Indian Penal Code.
23. In Kammu v. State of M.P. 1969 Jab LJ (SN) 99 the established principles of the right of private defence have been summarised as follows.
(a) Even if the accused does not plead self defence, it is open to the Court to consider such a plea if the same arises from the material on record.
(b) The burden of establishing the plea is on the accused but he has only to establish a prima facie case and the burden is discharged when on a consideration of the evidence the court is left in doubt.
(c) In considering whether the force used is not excessive, the Court must take a practical view of the circumstances and the matter should not be weighed in golden scales.
24. In Noshe Khan v. State of M.P. 1970 Jab LJ (SN) 23 it was observed:
Even so in judging the necessity of causing harm to the attacker, just allowance for the sentiment of the person attacked and placed in a situation of immanent peril, when he has no time to think calmly and modulate his defence accordingly but the sole object of warding off the danger facing him, has to be made. That is why it is said that the extent of such exercise of right of private defence cannot be weighed in golden scales. The words of Holmes, so often quoted and followed that 'detached reflection cannot be demanded in the presence of an uplifted knife.' Brown v. United States (1921) 256 U.S. 335 at P. 343 aptly lay down the approach the courts have to make in judging the quantum of harm permissible in exercise of the right of private defence.
25. In Dominic v. State of Kerala : 1971CriLJ1057 it is stated that the right of private defence rests on three ideas. First there must be no more harm inflicted than is necessary for the purpose of defence. Secondly, there must be reasonable apprehension of danger to the body from the attempt or threat to commit some offence. Thirdly, right does not commence till there is reasonable apprehension.
26. In Ramratan v. State of Bihar : 1SCR293 it is held:
When a person seizes cattle on the ground that they were trespassing on his land and causing damage to his crop or produce and gives out that he was taking them to the pound, he commits no offence of theft however mistaken he may be about his right to that land or crop. The remedy of the owner of the cattle so seized is to take action under Section 20 of the Act. He has no right to use force to rescue the cattle so seized.
Held on facts that in the circumstances of case, the accused who had seized the cattle from the disputed field committed no offence of theft even if they had no right to that field and that therefore the owner of the cattle and others who went armed with sharp edged weapons and lathis to rescue the cattle had no right of defence of their property, against the accused.
Held further that as the accused and their men could have apprehended, in the circumstances, that owner's party was not peacefully inclined and would use force against them in order to rescue the cattle and that the force likely to be used could cause grievous hurt, the accused committed no offence in causing injuries to persons in the owner's party and in causing the death of a person in that Party.
27. Applying law to the facts of this case, the appellants adopted the right course of taking the cattle to the cattle pound when they had damaged their crops. The deceased, however, reacted violently and aggressively and went fully armed to secure the release of the cattle. Their attitude emanated danger and their feelings of anger were raised to the pitch (Paragraph 4 of the deposition of Nathusingh P.W. 3).
28. The appellant Jhunna was also assaulted with an axe causing an incised injury on his parietal region. Besides, there was a previous background of aggressive treatment of the appellants by the two deceased coupled with a threat that they would see them in future. Faced with such a situation, the appellants must have sensed serious threat to their lives and gave a few strokes of axe on the victims. As pointed out in Amzad Khan v. The State : 1952CriLJ648 these things cannot be weighed in too fine a set of scales or in golden scales'. In face of the imminent danger, the two appellants could have no time to deliberate or reflect and detached reflection cannot be demanded in presence of the uplifted knife.
29. I am convinced that the two appellants did not use excessive force nor their actions were vindictive or malicious and to my mind, steps taken by them were such to which no exception can be taken and they were perfectly justified in what they did. In the circumstances, the lower Court was wrong in concluding that the two appellants exceeded the right of defence of person. I disagree with the lower Court and hold that the two appellants acted well within the four corners of the right of defence of person and their convictions under Section 304 (Part I) of the Indian Penal Code and sentences thereon cannot be sustained
30. In view of the above, the two appeals - No. 170 of 1971 Saitua and Anr. v. State of M.P. and No. 171 of 1970 Saitua and Anr. v. State of M.P. succeed and are allowed. The convictions of the two appellants Saitua and Jhunna under Section 304 (Part I) and 304 (Part I)/34 of the Indian Penal Code in both the trials and sentences of five years rigorous imprisonment to run consecutively are set aside and they are acquitted of the aforesaid offence. Their bail bonds shall stand cancelled.