S.S. Sandhawalia, J.
1. The six appellants being the sons and grandsons of Mangla Ram were brought to trial on charges under Sections 148, 302/149, 302/149, 307/149, 823/149 and 323/149, Indian Penal Code,before the Court of Session at Ferozepur. Brij Lal, appellant was charged in a separate case under Section 27 of the Arms Act for the unlawful use of his licenced gun but both the cases were tried together on the appellants' request in order to avoid any prejudice to them by separate trials. By a curious process of reasoning the learned Sessions Judge convicted Het Ram and Banwari Lal appellants only under Section 302 read with Section 149, Indian Penal Code, for the murders of Shiv Lal and Gopi Ram deceased respectively and sentenced them to death but held the other four appellants guilty under Section 326 read with Section 149, Indian Penal Code. He imposed a sentence of 4 years' rigorous imprisonment under Section 326 read with Section 149, Indian Penal Code, on three counts on Lalu Ram, Brij Lal and Kanshi Ram appellants whilst Balram appellant due to his tender age and on the finding that he acted under the influence of his father was sentenced to one year's rigorous imprisonment on these counts. Separate convictions and sentences were also recorded under Section 323/149 Indian Penal Code, and Section 148. All these sentences were, however, directed to run concurrently. Brij Lal appellant was, however, acquitted of the charge under Section 27 of the Arms Act. All the convicts appeal and the death sentences of Het Ram and Banwari Lal appellants are also before us for confirmation of the same.
2. The appellants Lalu Ram and Kanshi Ram are brothers. Brij Lal and Banwari Lal are the sons of Kanshi Ram whilst Het Ram and Balram are the sons of Lalu Ram. Shiv Lal and Gopi Ram deceased, both of whom were killed in the incident, were also brothers and the three injured P. Ws. namely, Balwant Ram Jagdish Lal and Devi Lall are sons of Shiv Lal, deceased. The motive for the commission of the offence is the rather common place one pertaining to the alignment of an irrigation watercourse The two feuding families of the appellants and the deceased are not land owners in their own right but are tenants of agricultural land. Kanshi Ham appellant held the land of Tek Chand, Lambardar in his cultivating possession whilst his brother Lalu Ham appellant was the tenant of some land owned by Rai Sahib Kundan Lal in village Dhaban Kokarian. Gopi Ram and Shiv Lal, the two deceased brothers had been for long in cultivating possession of some other land of Tek Chand, Lambardar. Before the consolidation of holdings in the said village which took place approximately two years prior to the occurrence the watercourse irrigating the land of the complainant family used to run through the land of R. S. Kundan Lal which was in cultivating possession of the appellants. After the consolidation the said watercourse was discontinued and a new watercourse was provided which, however, did not satisfactorily command the fields of the complainants as it ran at alower level. Shiv Lal deceased is said to have made art application to the Canal Department and another watercourse was provided by the authorities and the same continued to be in use for a period of nearly two years. The prosecution alleges that Tek Chand the landlord of the complainants wanted to evict them from the said land and to give that tenancy to the appellants family which was not agreed to by the complainants. It is alleged, however, that in order to harass them and to pressurise them for vacating the same, the appellants demolished the watercourse, thus obstructing the irrigation of the land of the deceased. It is thus the case of the prosecution (which is stoutly controverted on behalf or the defence) that the matter was reported to the Panchayat in which the appellants and the complainants families were represented and it was decided in the said Panchayat that the original watercourse as it existed before the consolidation of holdings, should be restored and be reconstructed by the complainants. We have adverted in detail to these matters as a plea of private defence of property and person has been taken on behalf of the appellants and it is thus necessary to have the events leading to the incident in a clear perspective.
3. The occurrence took place on Diwali day that is the 1st of November, 1967, at about 3 P. M. Gopi Ram and Shiv Lal deceased along with Balwant Ram, Jagdish Lal and Devi Lal P. Ws. had on the said day gone at about 2.30 P. M. to reconstruct the old watercourse and were doing so when at about 3 P. M. all the six appellants came there armed. Het Ram and Banwari Lal appellants were armed with sailas. Kanshi Ram appellant had a kassia, Balram a kulhari, Lalu Ram a dang whilst Brij Lal appellant was carrying his licenced gun. A challenge is said to have been thrown by the appellants declaring that they would not allow the complainants to construct the watercourse and will further eject them from the land whereupon the deceased and the P. Ws. suspended the work of constructing the watercourse nevertheless Brij Lal appellant is said to have fired two shots in succession accompanied by a threat that anyone who would withdraw from the spot would be shot to death. The deceased and the P. Ws. out of fear are said to have then withdrawn to the path going to village Sardarpur which is close by, but the appellants are said to have followed them up and opened an attack on them which was both sudden and simultaneous. Het Ram appellant is said to have struck two fatal blows to Shiv Lal with a spear in his chest and back whilst Kanshi Ram and Balram also inflicted injuries on him with their respective weapons. Banwari Lal appellant similarly is said to have struck the fatal spear blow to Gopi Ram on his chest and left arm-pit whilst Kanshi Ram appellant dealt a blow on his head with his kassia. Jagdish Lal P. W. who attempted to intervene witha spade, which he was carrying, was also assaulted with a spear by Het Ram whilst Kanshi Ram appellant hit him with a kassia and Balram with a kulhari. Injuries were then caused by the appellants with their weapons to the three prosecution witnesses, namely, Balwant Ram, Devi Lal and Jagdish Lal, out of whom Jagdish Lal and Devi Lal who had spades retaliated with their weapons against Brij Lal and Lau Ram appellants. Shiv Lal and Gopi Ram died at the spot and thereafter the appellants are said to have withdrawn from the place of occurrence with their respective weapons towards their homesteads which are not very distant from there. After the incident Bal-want Ram accompanied by Sohan Lal was proceeding to the police station when he met Sub-Inspector Iqbal Singh at the Bus Stand, Dotarianwali, and made a statement. Exhibit P. 17 which forms the basis of the first information report recorded at police station, Abohar, regarding the incident. The Investigating Officer forthwith reached the spot and collected the bloodstained earth therefrom, prepared the relevant inquest reports as well as the site plan and completed the other details of the investigation thereat.
4. On the 9th of November. 1967, Head Constable Bam Bhagwan had interrogated Het Ram, Banwari Lal, Balram and Kanshi Ram appellants and in pursuance of their respective disclosure statements they led to the recovery of the respective bloodstained weapons said to have been wielded by them at the time of the commission of the offence and these two spears, a kulhari and a kassia were subsequently found on chemical analysis to be stained with human blood and the earth collected from the spot was also similarly found to have the presence of blood of human origin. The licenced gun of Brij Lal was also taken into possession vide memo, Exhibit P. 33. There was, however, no recovery of the dang said to have been wielded by Lalu Ram, appellant.
5. Dr. H. C. Ohri performed the autopsy on the dead body of Gopi Ram on the 2nd November, 1967, at 2.30 P. M. and found five injuries on his person of which two were stab wounds and the other three were incised wounds. Death was opined to be the result of injury No. 1 which had ruptured the heart and consequent shock and haemorrhage therefrom. The time that elapsed between death and injury was opined to be immediate and between death and postmortem about one day.
6. Lady Dr. Adrash Yakhmi on the 2nd of November, 1967, at 3 P. M. had conducted the post-mortem on the dead body of Shiv Lal deceased and found three incised wounds and a stab wound on its person. Oft internal examination the costal cartilage and the pleurae was found cut and similarly the left lung was perforated and the left ventricle of the heart was also cut. Thewounds in the heart were communicating with each other. Death was opined to be the result of the stab wound, being injury No. 4, which was sufficient to cause death in the ordinary course of nature. The probable time between injury and death was immediate and between death and postmortem about one day. This witness in cross-examination stated that under injury No. 4, the wound on the back was the wound of entry of the spear and the wound in the chest on the front is the wound of exit of the spear and both these injuries were the result or the same blow.
7. On the 1st of November, 1967, at 5.30 P. M. Dr. H. C. Ohri had examined jagdish Lal son of Shiv Lal and found 9 injuries on his person of which injuries Nos. 1, 8 and 9 were opined to be the result of blunt weapon whilst others were inflicted with a sharpedged weapon. On the 2nd of November, 1967, Dr. H. C. Ohri had also examined Dev Raj son of Shiv Lal (subsequently mentioned as Devi Lal son of Shiv Lal in the prosecution evidence) and found one reddish contusion and one abrasion on his person. On the 3rd of November, 1967, at 6.45 P, M. Dr. Mrs. Shakuntala Bawa had examined Balwant Ram son of Shiv Lal and found one contusion 3' x 2' on the middle and outer part of the left thigh and it was opined to be the result of a blunt weapon and its duration was about three days. The above medical testimony brings on record the injuries suffered by the two deceased persons and the three prosecution witnesses in the case. On the side of the appellants, Lal Chand was seriously injured and was medico legally examined by Dr. H. C. Ohri on the 1st of November, 1967, at 8.50 P. M. He was accompanied by his brother Kanshi Ram appellant and the following injuries were found on his person:
1. Incised wound 3' x W bone deep, on the left side of top of head, running from side to side, 6' above the left ear, cutting the underlying bone. He was semiconscious. Pupils were sluggish. He was vomiting. Substance resembling grey matter of the brain was flowing. The injury was blood-covered and shirt was profusely blood-covered.
2. Incised wound 1/2' x 1/4', skin deep on the front of top of head, in the middle, 2' from the hair margin.Injury No. 1 was grievous and the duration of the two injuries was mentioned within 12 hours. The injured had developed aphasia (loss of speech) as a result of head injury and was not fit to be moved. In cross-examination it was further opined that the injury on the head of Lal Chand could be caused with a weapon like gandasa and the said injury was dangerous to life as the brain matter was also flowing out of the wound. Apart from aphasia it also caused a weakness of one side of the body. The other appellant Brij Lal who was injured was examined on the 8th ofNovember, 1987, at 6.45 P. M. by Dr. S. Saini and a granulatine wound 5 cm x 1 cm x 1/6 cm on the back of left chest 8 cm above the lower rib margin was found on his person. The duration was opined to be 7 to 10 days but in view of the time that had elapsed the kind o weapon used for the infliction of the injury could not be determined. It was in cross-examination when this witness opined that in case the injury would have been an incised wound it could have been caused by a sharpedged weapon like gandasi.
8. The eye-witness account in the present case rests solely on the evidence of the three brothers P. W. 5 Balwant Ram, P. W. 6 Jagdish Lal and P. W. 12 Devi Lal being the sons of the deceased Shiv Lal. P. W. 13 Sohan Lal and P. W. 15 Kanshi Ram who are real brothers have deposed regarding the lodging of the first information report by Balwant Ram and the recoveries at the instance of some of the appellants respectively. P. W. 17 Iqbal Singh S. H. O. and P. W. 18 Ram Bhagwan, Head Constable, are the two Investigating Officers, One Court witness Madan Lal, Canal Patwari, was examined. He was a prosecution witness but the Public Prosecutor did not wish to examine him and he was examined as a Court witness on the request of the defence under Section 540 of the Criminal Procedure Code.
9. In their statements under Section 842, Criminal Procedure Code, three of the appellants, namely, Kanshi Ram, Banwari Lal and Balram pleaded false implication and denied their presence at the spot. Kanshi Ram appellant further pleaded that he was nearly blind and being in his seventies was too old to have participated in the fight. A positive version, however, has been set up by Het Ram, Lalu and Brij Lal appellants. This appears in the reply of Het Ram appellant in the commitment Court in the following terms:
'It is incorrect. My father had gone alone to protest to Shiv Lal and Gopi Bam against digging of the khal by taking copy of an order, which he had already obtained. The opposite party started shouting at Lalu Ham and abused him. Shiv Lal and Gopi Ram were armed with gandasis and apprehending an attack on him, I rushed to rescue him with a saila. By the time. I arrived, Gopi Bam dealt a blow of Lain Ram's head. I dealt him a blow in order to save my father. Then Shiv Lal aimed another blow on his head which brought him reeling to the ground. I consequently struck him also with my saila and just as I and Brij Lal were trying to attend on Lalu Bam, Gopi Bam dealt a gandasi blow on the back of Brij Lal and so I dealt a blow at Gopi Ram.' This plea was reiterated by Lalu appellant who further added that the complainants were communists and had been advised to dig the watercourse by force. Brij Lal appellant whilst admitting his presence at thespot denied the fact that he bad gone there armed with a gun and suggested the prosecution story to be implausible as he would have used the gun against the complainants if he was so armed. No defence evidence was, however, adduced in support of the pleas taken on behalf of the appellants.
10. In view of the above plea taken up on behalf of the appellants three crucial questions arise for determination in the present case. Firstly, whether the complainants had any legal justification for digging and constructing a watercourse through the lands in the cultivating possession of the appellants. Secondly, if the act of the complainants was not so justified, would the appellants have a right of private defence against it? Thirdly, me subsidiary question arises whether the injuries were inflicted on the land of the appellants or upon the adjoining path leading to village Sardarpur.
11. Ere we go to the area of controversy betwixt the parties if deserves notice that certain facts are admitted or stand conclusively proved on the record. Of these it is apparent that prior to the consolidation of holdings in the village, which took place nearly two years before the present incident, a watercourse existed through the lands of the appellants which had served the lands of the complainants for irrigation. After the consolidation this watercourse was admittedly discontinued and became non-existent and in its place a new watercourse considerably to the south passing through the land of Bogha Ram was constructed and remained flowing for nearly two years. Apart from the faint suggestion that is now made that the landlord of the complainants wanted to evict them and substitute the appellants in their place, there exists no hostility or any serious enmity or any cause for hostility between the party of the complainants and the appellants.
12. It is in the light of the above facts that the prosecution evidence regarding the justification of the complainants for building a watercourse in the lands of the appellants has first to be appraised. At the very outset it is noticeable that the present prosecution suggestion that Tek Chand landlord of the complainants wanted to evict them and give the lands to the appellants does not find specific mention in the first information report and is not stated to be the motivating cause of any hostility. On this aspect, apart from the bald statement of Balwant Ram P. W., there is not a hint of any evidence regarding the same. Even his own brothers, Jagdish Lal and Devi Lal, are blissfully unaware of any such fact. Almost similarly there exists no credible evidence that the existing watercourse serving the lands of the complainants was ever demolished by the appellants. Neither the date, time nor the person in whose presence it was so done has been remotely suggested in the prosecution evidence. As a matter offact, far from there being a corroborative evidence on this score, the evidence of CW 1 Madan Lal, the Canal Patwari of the Circle Dhaban Kokarian, who is an official witness and had deposed from the record, is clearly contrary to this aspect of the prosecution case. This witness had deposed that the watercourse prepared subsequent to consolidation of holdings was still in existence and had never been demolished. Nor has the prosecution brought any evidence regarding its allegation that such demolition was brought before a Panchayat and a resolution regarding the reconstruction of the watercourse through the lands of the appellants was passed. Balwant Ram P. W. stated that Soni Ram Dhankal Ram, Sohan Lal and Kanshi Ram, apart from others, were the persons who bad constituted the said Panchayat. Surprisingly, none of these persons or any other has come forward to support such a version. Nor any documentary record or any other evidence, apart from the statement of Balwant Ram P. W., appears in this context. There is not the faintest suggestion regarding this Panchayat in the first information report and the maker of this statement Balwant Ram has been falsified by confrontations therein in cross-examination. A further weakening of this version arises from the fact that Devi Lal, a brother of Balwant Ram PW shifted considerably from the stand taken by the former regarding the demolition and the reporting to the Panchayat. Devi Lal PW made no mention of any demolition or the reporting thereof or the constitution of a Panchayat on this score. He rather attempted to build an altogether new case on the basis that the appellants had themselves agreed that a watercourse be constructed through their lands. Apart from the evidence the probability is also wholly against the prosecution story in this regard. It appears utterly unreasonable and unexplained mat whilst in the forenoon the appellants had willingly agreed to the construction of a watercourse through their lands but by the afternoon they had become almost murderously hostile to any such act. It is thus that, an overall consideration of this aspect of the prosecution case, leaves one in no manner of doubt that this is a belated and puerile attempt on the part of the prosecution witnesses Balwant Ram, Jagdish Lal and Devi Lal to concoct some justification for their illegal act in going upon the lands of the appellants and digging a channel therein. The conclusion is thus inescapable that the prosecution version that they were digging the watercourse through the appellants' lands with either the express consent of the appellants or on the basis of the authority of a Panchayat resolution is nothing but a blatant falsehood.
13. On the above finding it follows that the complainants had gone upon the lands in tie physical possession of the appellants and attempted to construct a watercourse therein without any legal justification. Once itis so found that they were doing so without any authority or the consent or the appellants, it stands to reason that they were doing so by force and in such an eventuality must have gone to the spot armed to meet any opposition which they must necessarily have anticipated. The trial Court had itself come to the finding that the act of the complainants was wholly unjustified in the following words:--
'And unilateral decision of the members of the Panchayat could not bind the accused, who could act in the exercise of a private defence of property, if such a right was available to them. Then it is improbable that the accused had consented to the construction of the watercourse by the deceased because a little later when the construction of the watercourse is said to have started, they came out, armed variously, to obstruct it. Therefore, it cannot be said that the deceased had any right to construct the watercourse in the fields of the accused.'
Having arrived at the above finding, nevertheless the trial Court denied the right of private defence to the appellants on two grounds: firstly that the lands through which the watercourse was being dug at the time of the occurrence bore no crop and, secondly, that the appellants were Bound in such a situation to have recourse to public authority. Both these findings, in our view, cannot possibly be sustained.
14. The prosecution evidence makes it wholly evident that the complainants had without authority started the construction of the watercourse on the said day passing through the lands of Lalu Ram and Kansni Ram appellants and had completed considerable parts thereof prior to the incident. That this watercourse had been built through the lands of the appellants which bore cotton crops appears clearly. In the words of Balwant Ram P.W. who had stated thus:
'On the other side of the path through which we had constructed the watercourse that day there were the fields of Kanshi Ram accused. It was through those fields that we had constructed the watercourse from the path to our fields. There were cotton crops in the fields of Kanshi Ram where the watercourse had been constructed. That land was in the tenancy of Kanshi Ram which was owned by Tek Chand Lambardar. We did not take permission of Tek Chand for constructing the watercourse.'
Nothing could be more explicit. This is further borne out from the site plans which clearly show that the land of Kanshi Ram appellant is situate on the western side of the path and there was cotton crop therein. That this land may not be diametrically opposite to that of Lalu Ram appellant is hardly of any consequence. The trial Court was alive to the clear statement of Balwant Ram PW and the site plans but chose to brush it away in the following terms:--
'There appears to be some confusion in the mind or this witness, obviously because of his comparative youth.'
We fail to see bow if the conviction of the appellants can be sustained on the evidence of Balwant Ram despite his supposedly tender years, this crucial statement in favour of the defence can be ruled out on the ground of his comparative youth.
15. A reference to the ocular evidence as well as the documentary evidence in the shape of site plans further shows that at the place where the complainants were engaged in digging there was cotton crop of the appellants in the close proximity thereof. The complainants were as yet continuing in their attempt to complete the water channel to join it up with the existing watercourse. It is thus evident that in this process they had already destroyed the cotton crops of the appellants and also by continuing to do so, gave reasonable apprehension to them that in the completion of the channel further damage to the crops may ensue. We are thus clearly of the view that the act of the complainants fell clearly within the ambit of both the offences of criminal trespass and mischief.
16. Even assuming for a moment entirely for the sake of argument that there had been no actual or apprehended destruction of the cotton crop, the act of the appellants would still fall within the two offences above-mentioned. The learned trial Court was of the view that even though it may be so the appellants were bound to resort to the public authorities and as such were not entitled to a right of private defence. We regret that we cannot possibly agree with this view of the law. The proposition that a person in physical possession of land and in whose presence criminal trespass and mischief is being committed by force (and without any semblance of a right a permanent watercourse is being constructed thereon) is nevertheless obliged to retreat therefrom and resort to the fitful relief he might secure from a police station ten miles away, is to our mind wholly untenable. The right of private defence of property cannot be whittled down to something so inconsequential. The trial Court had placed reliance for its view on two authorities of the Patna High Court and one of the Lahore High Court. In our view these three cases are inapplicable and clearly distinguishable on the facts of the present case. In Hariram Mahatha v. Emperor, AIR 1942 Pat 96 on which reliance had been placed, the facts were entirely different. There existed a bona fide dispute about the land in question and the finding was that the complainants had a good title to the same and were acting lawfully on going upon the land. It was further held that there was neither theft nor mischief and the act of the appellants was not to prevent these offences but to enforce their own right with force in execution whereof they had made a designedly violentattack on the complainant party. Further the finding was that the complainants had gone to the field which at the relevant time was unoccupied. In these circumstances the plea of private defence was negatived.
In Satnarain Das v. Emperor, AIR 1938 Pat 518 on the facts it was found that both the parties had gone to the land fully armed In full expectation of an armed conflict and determined to have a trial of strength. It was in this context that it was laid down that the right of private defence would not be attracted. In Phula Singh v. Emperor, AIR 1927 Lah 705 which is a Single Bench authority, the complainants had already ploughed and sown the land in dispute with chari. It was subsequently that an attempt was made of forcible eviction therefrom. On considering the argument that the right of private defence would arise, the learned Judge observed that while there was something to be said for that proposition but on the facts of the case it was opined that the appellant should have resorted to the authorities for redress. In our view the observations in this judgment are no warrant for the view that in case of criminal trespass and mischief in the presence of the occupier in possession thereof, the latter is disentitled to the right of private defence. The provisions of Section 97 of the Indian Penal Code, clearly envisage the right of private defence against any act which falls within the definition or the offences of mischief or criminal trespass or which is even an attempt to commit such an offence. Section 105 of the Penal Code further lays down that this right of private defence of property commences when a reasonable apprehension of danger to the property commences and continues as long as the offender continues in the commission of criminal trespass or mischief. The words of the statute are themselves explicit and are fully supported by authorities. In Abdul Hadi v. Emperor, AIR 1934 All 829 (2) the complainants were excavating upon a portion of the land so as to make it fit for some purpose in manufacturing sugar. It was held that such digging on the land which was in possession of the appellants would constitute the offences of criminal trespass and also of mischief which would entitle them to a right of private defence. The applicability of Section 99 was expressly considered and negatived in such a circumstance with these observations:
'It could not have been the intention of the framers of Sections 97 and 99 to compel a person having the right of private defence of property to acquiesce in criminal trespass or mischief, and not exercise his right of private defence at all. In most cases if recourse is had to public authorities the mischief complained of will have been committed before the Public authorities come to his rescue.'
In Summa Behera v. Emperor, AIR 1945 Pat 283 Sinha and Das JJ. had held that aperson in possession of property is entitled to defend himself and his property by force and to collect such numbers and such arms as are necessary for that purpose, if he sees an actual invasion of his rights, which amounts to an offence under the Indian Penal Code and it would be lawful for such a person who has seen an invasion of his right, to go to the spot and object It was also observed as follows:
'It is not the law that the rightful owner in peaceful possession of a piece of property must run away, if there is an actual invasion of his right and an attempt on his person.'
This view was reiterated again in Barisa Mudi v. State, AIR 1959 Pat 22, wherein K. Sahai I. on a difference of opinion between C. P. Sinha J. and K. Ahmad J. whilst agreeing with Sinha J. held that the right of private defence in similar circumstances was attracted and had not been exceeded. In Mozam Ansari v. State, 1961 BLJR 824 after a consideration of the earlier authorities Ramratna Singh J. summed up the law in the following terms:--
'The law applicable to such cases is well settled. It is not the law that the rightful owner in peaceful possession of property must run away, if there is an actual invasion of his right and an attempt on his person. The person in possession of property is entitled to defend himself and his property by force and to collect such numbers and such arms as are necessary for that purpose, if he sees an actual invasion of his rights, which Invasion amounts to an offence under the Penal Code, and when there is no time to get police help. It is lawful for a person, who has seen an invasion of his rights, to go to the spot and object. It is also lawful for such persons, if the opposite party is armed, to take suitable weapons for his defence (see, AIR 1945 Pat 283). The right of private defence of property arises as soon as there is a reasonable apprehension of danger to the property. The person entitled to exercise that right can act before actual harm is done. It is not a right of retaliation and hence he need not wait until the aggressor has started committing the offence which occasions the exercise of his right of privatedefence.'
17. Lastly their Lordships of the Supreme Court whilst considering the ambit and the scope of the right of private defence in Jai Dev v. State of Punjab, AIR 1963 SC 612 have observed as follows:
'This, however, does not mean that a person suddenly called upon to face an assault must run away and thus protect himself. He is entitled to resist the attack and defend himself. The same is the position if he has to meet an attack on his property. In other words, where an individual citizen or his property is faced with a danger and immediate aid from the State machinery is not readily available, the individual citizen is entitled to protect himself and his property'.
'* * * So long as the threat lasts and the right of private defence can be legitimately exercised, it would not be fair to require, as Mayne has observed, that 'he should modulate his defence step by step, according to the attack, before there is reason to believe the attack is over'. The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run away for safety. It entitles him to defend himself and law gives him the right to secure his victory over his assailant by using the necessary force.'
18. In view of the above enunciation of the law we are clearly of the opinion that the learned trial Judge was wrong in holding that the appellants were disentitled to the right of private defence because they were bound to resort to the public authorities. In our view they were clearly protected by the right of private defence of property on the facts of the present case.
19. Whilst considering the last question whether the injuries were caused to the complainants at the spot where they were digging the land of the appellants or upon the adjoining path leading to Sardarpura, it is necessary to examine critically the prosecution version of the incident and the nature of the evidence adduced in support thereof. Regarding the assault, the sole testimony is that of the three brothers who are the sons of the deceased Shiv Lal. In the present case where injuries have been caused on both sides and a precise counter version is being pleaded on behalf of the appellants it is out natural that the testimony of these witnesses should be partial to the version which they have chosen to give. All the three eye-witnesses, therefore, come clearly within the ambit of words termed as 'interested testimony' and unfortunately in the case no independent ocular testimony is available to lend assurance to the story put forward by them. In such a situation where the spot of occurrence varies only by a few paces in the two versions given the testimony of such interested witnesses cannot possibly be final.
20. Whilst considering the evidence of the three eye-witnesses on the point of motive we have already held it to be false on that point and deliberately modulated to negative the plea raised by the appellants, All these three eye-witnesses stand further falsified by the medical testimony. Dr. Adarsh Yakhmi P. W. 4 had clearly opined that injury No. 4 on the person of Shiv Lal was the result of a single blow and the wound on the back was the wound of the entry and the wound in the chest was the wound of the exit. The deceased had no other injury to that region, the other three being on the head. All the eye-witnesses, however, have deliberately prevaricated in saying that two distinct blows were given to Shiv Lal one on the back and the other on the chest.This deliberate and designed attempt to exaggerate and in a clumsy way to modulate their account according to the two injuries which were noticed at the time of the inquest report on this part of the body of Shiv Lal shows to what length these witnesses can go falsely in support of then story. Subsequent autopsy and the opinion of the medical witness has given the lie direct to this version.
21. On two other material aspects the version of the prosecution is also patently unsatisfactory. The version that the injuries on Lalu Ram and Brij Lal appellants were given by Balwant Ram and Devi Lal P. Ws. with their kassis cannot stand the test of a close examination. It is noticeable that in the first information report neither the weapons nor the prosecution witnesses who had inflicted these injuries were specified at all. No bloodstained spades were either found on the spot or were produced before the police. The appellants are said to be armed with long handled weapons like two spears, a kassia and dang and it appears improbable to our mind that against such weaponry the two prosecution witnesses with such clumsy instruments like spades were able to retaliate and cause a grievous and a simple injury on Lalu Ram and also one on Brij Lal. On the broader aspect it further appears wholly improbable as suggested that after both Gopi Lal and Shiv Ram had been fatally stabbed and Jagdish Lal P. W. who was unarmed was incapacitated with injuries, the two boys Balwant Ram and Devi Lal with spades only could hit back at the six determined and heavily armed assailants. It appears that the number of assaitants is being exaggerated as well as it is further being suppressed that the injuries on the appellants Brij Lal and Lalu Ram were apparently inflicted first and then in retaliation the fatal injuries were caused by the appellants. Equally unlikely is the prosecution story that Brij Lal appellant was armed with his licensed gun who twice fired with the same. No empty cartridge was recovered from the spot and this was most likely because the gun used is a single barrel gun. The prosecution had sent the gun of Brij Lal to the Ballistic Expert for the opinion whether it had been fired in the incident but it chose to withhold the evidence of B. R. Sharma, Director of Forensic Science Laboratory, Chandigarh, who was given up as an unnecessary witness. No circumstantial or expert evidence, therefore, has been brought on record to show that this licensed gun was ever used in the incident. The learned trial Court also seems to have doubted this part of the prosecution story and has acquitted Brij Lal, appellant, on the charge under Section 22 of the Arms Act. It is otherwise wholly improbable that whilst being armed with a gun, this appellant suffered an injury on his back allegedly with a spade and also at no stage used the same against either the deceased or the prosecution witnesses. We are constrained to hold that this part of the prosecution story regarding the gun held by Brij Lal is a fabrication.
22. On the finding that Brij Lal, appellant, was not armed with a gun, the prosecution version that they had at the relevant time retreated from the spot to the path of village Sardarpura is seriously jeopardised. On this point, the prosecution evidence first was that Brij Lal had fired the gun and directed that if anybody moved from the spot, he would be shot at which held the complainants to the spot. This is subsequently sought to be changed to the version that on seeing the gun-fire the complainants retreated out of fear from the spot on to the path. Once it is held that Brij Lal was not armed with a gun and the same was not fired, the version of retreat on to the path becomes implausible. It is noticeable that the version of retreating on to the path of village Sardarpura does not find any mention whatsoever in the version given in the first information report by Balwant Ram P. W. Devi Lal P. W. had to concede in cross-examination that before the committing Court he had stated that all of them had kept standing by the watercourse and did not move on hearing the threat from Brij Lal. Unable to get away from this crucial admission, he at the trial wanted to show that he had stated so by mistake before the committing Court. This evidence also clearly shows that the story of withdrawal to the pathway is an afterthought. Equally noticeable is the fact that in the visual plan P. 30 made by the Investigating Officer, the place of assault is shown at point 'H' which is squarely in the field of the appellants and clearly away from the path. Nor is there any reliable evidence regarding the recovery of the bloodstained earth from the path leading to Sardarpura. P. W. 13 Sohan Lal had to concede that be is a relation of the deceased persons. No reason has been given as to why independent witnesses like Soni Ram Sarpanch and another Sohan Lal a former Sarpanch, who were at the spot, were not joined in the recovery and attestation of the bloodstained earth from the spot. The inter-estedness of Sohan Lal P. W. is also otherwise patent from the fact that he had accompanied Balwant Ram in the very first instance for lodging the report against the appellants. For these reasons we are of the view that the prosecution has been wholly unable to bring any credible evidence regarding its version that the complainants had withdrawn from the land of the appellants and that they were chased to the path and injured there. In fact all indications and possible inferences from the evidence point to the contrary.
23. On the above finding, therefore it follows that the deceased and the prosecution witnesses had gone upon the land of the appellants without any right whatsoever. In such a situation they would perforce go armed as they knew that the habitat of the appellants was not far distant and they couldcertainly expect opposition for their act. The medical witness has opined that the injuries on Lalu Ram and Brij Lal appellants could be the result of gandasi blows as has been pleaded by the defence. We are disinclined to accept the prosecution story that the injuries on these two appellants were caused by the spade or that they were caused after the infliction of fatal injuries on Shiv Lal and Gopi Ram. The probabilities in fact clearly are that the injuries on these two appellants were inflicted first. In this context if the appellants were resisted in their lawful right to evict the complainants from the land and the offenders were armed with dangerous weapons, the appellants would clearly be within their rights to use adequate force in retaliation. The injuries on Lalu Ram was a near fatal injury as the medical witness had opined that substance resembling grey matter of the brain was flowing from there. The infliction of such an injury and even an apprehension thereof clearly gave the appellants the right of private defence of person as well. In such a situation, as observed by the Supreme Court a person cannot modulate his defence step by step and the blows which he inflicts are not to be weighed in the proverbial 'golden scales'. The appellants could clearly apprehend an assault likely to cause death or grievous hurt which was in fact caused and thus were within their rights to inflict fatal injuries. In our opinion they had not exceeded that right Their act being protected, no offence has been brought home against them and the conviction cannot be sustained. We would, therefore allow this appeal and acquit all the appellants of the charges levelled against them. In consequence, the reference for the confirmation of death sentences of Het Ram and Banwari Lal is declined.
Gurdev Singh, J.
24. I agree.