P.D. Sharma, J.
1. Mohan Lal and Muni Lal sons of Bishna on their convictions under Section 307 read with Section 34, Indian Penal Code, and sentence of 6 years' rigorous imprisonment and payment of a fine of Rs. 100 or in default to undergo rigorous imprisonment for another period of three months each have come up in appeal.
2. The prosecution story briefly stated runs as follows. The accused-appellants on one side and Bachan Singh complainant P.W. 2 on the other were sent up for security proceedings under Section 107 of the Code of Criminal Procedure some four years' back. The parties came to terms and with it the proceedings ended. About 4 days before the occurrence a case under the Punjab Excise Act was registered against Bachan Singh P.W. by the police. He thought that Mohan Lal accused-appellant and his brother Ishar Singh were responsible for it, In order to collect information about the place where the accused-appellants had been distilling illicit liqueur which he wanted to pass on to the police, he contacted Gurnam Singh P.W. 5 aged 30 years who was their employee. Gurnam Singh undertook to do so. On 11th January, 1967, at about 8 P.M. when Bachan Singh along with his servant Banwari P.W. 6 were sitting in his baithak, the said Gumam Singh came there and informed the first of them about the place where the accused-appellants were distilling illicit liquor. Bachan Singh and Banwari accompanied by the informer proceeded in that direction. Banwari was made to sit at some distance from the accused-appellants' tube-well as he was to pass on the information to the police on receiving the signal from Bachan Singh, When Bachan Singh and Gurnam Singh reached near Muni Lal accused-appellants tube-well, the lights were suddenly switched on. The two accused-appellants armed with spear and ganders opened the attack and caused multiple injuries to Bachan Singh. He was dragged to the hut situate close-by there his hands were tied and was further beaten, from the lathi parts of the spear and gandasa. Thereafter Muni Lal fired twice from the gun and shouted that he would kill if anybody tried to rescue Bachan Singh.
3. Banwari on hearing the alarm raised by Bachan Singh and hearing the report of two gun shots ran to the house of Man Singh P.W. 1 a brother of Bachan Singh and told him all that he had seen. He then went to his house while Man Singh along with Jog Dhian, member Panchayat went to the Police Station, Shaha-bad, and lodged report Exhibit P.W. 1/1. A. Section I. Jiwan Das P.W. 10 accompanied by Jog Dhian, Man Singh, Kishan Singh, Banwari and Biru Chowkidar, the last three named joined him from village Kathua, went to the spot. They saw Bachan Singh P.W. lying injured in a hut at the accused-appellants tube-well. The two accused-appellants were also standing at a distance of three karams from the injured. Mohan Lal, accused-appellant as well bore marks of injuries. A.S.I. Jiwan Das prepared injury statements of Bachan Singh P.W. and Mohan Lal accused-appellant P.W. 10/1 and P.W. 10/2. He also picked up bloodstained earth from the spot. Both the injured persons were sent to the hospital. Muni Lal was interrogated as a result of which he made the disclosure statement, Exhibit P.W. 7/2 and this led to the recovery of a bloodstained spear P.W. 5 from a closely chilli field. It was taken into possession vide memo. P.W. 7/3. He also interrogated Mohan Lal accused on 12th January, 1967, after his return from the hospital at about 12 noon who made disclosure statement P.W. 7/4 and then produced bloodstained gandass P.W. which was taken into possession and formed into a sealed parcel.
4. Dr. K.K. Dewan examined Bachan Singh at 7-30 A.M. on 12th January, 1967, and noticed as many as 32 injuries on his person, 5 of which were grievous and 15 were caused by sharp-edged weapon and the rest by blunt weapon like gandasa and spear. In the opinion of the doctor all the injuries collectively could be dangerous to the injured person's life. He conceded that none of the grievous injuries was on any vital part of the body and that the injured was conscious at the time of the medical examination.
5. The prosecution did not care to examine any doctor in regard to the injuries noticed on the person of Mohan Lai accused. The injury statement Exhibit P. 10/2 prepared by the A.S.I., however, indicated that Mohan Lal had received a barcha blow in the chest below the right nipple and towards the liver.
6. Mohan Lal accused-appellant in answer to questions put to him under Section 342 of the Code of Criminal Procedure controverter the prosecution story and denied having made any disclosure statement and the recovery of the gandasa at instance. Muni Lal explained that Ishar Singh, his brother was cited as a witness in the excise case against Bachan Singh, that Gurnam Singh belonged to a place where Bachan Singh was married and that he had left his service about two months' before the occurrence. He also stated that Gurnam Singh never told him that Bachan Singh wanted to enquire from him about the place where he was in the habit of distilling the liqueur. He maintained that the P.Ws. deposed against him on the ground of their enmity with him and friendship with Bachan Singh injured.
7. Bachan Singh P.W. 2, Gurnam Singh P.W. 5 and Banwari P.W. 6 are the principal witnesses in the case. They had deposed in terms of the prosecution story. The first of them conceded in his cross-examination that after the partition of the country he and Ishar Singh 'brother of the accused appellants were sent up for trial in a dacoit and murder case and that lie was later on challaned for committing theft of Chanchil Singh's property but he could not remember whether the police initiated proceedings under Section 110, Criminal Procedure Code, against him. He denied the suggestion that on account of previous enmity with the two accused-appellants he along with his brother Man Singn armed with a gun and some other bad characters went to the tube-well of the accused-appellants for committing dacoity, that his brother fired shot from his gun as a result of which some persons came out of a kotha at the Tube-well and attacked him and over-powered him while his brother and others managed to run away. Gurnam Singh P.W. 5 conceded that Bachan Singh P.W. was married in his village Landhi. According to him the alarm raised by Banwari attracted residents of the village to the spot and for this reason he did not convey any information to them. Banwari gave out also that when the police asked the accused to produce their respective weapons, Muni Lal brought barchna and Mohan Lai a gandasa from the nearby chilli fields and handed them over to the police. He contradicted the suggestion that he along with Man Singh armed with a gun and Bachan Singh went to the tube-well for an illegal raid but when there was are encounter he ran away out of fear. Jog Dhianiand Kishan Singh P.Ws. 7 and 8 are said to have been present when the two accused-appellants were interrogated and the barcha and gandasa recovered at their instance. The first of them conceded that he was cited as a witness in a rape case against Ishar Singh brother of the two accused-appellants and that he also appeared as a witness for one Bodi against the said Ishar Singh in a civil case, Kishan Singh admitted that Bhartu was his collateral, that Ishar Singh was prosecuted for committing rape on Bhartu's wife but was acquitted. Man Singh P.W. 1 gave details of the information conveyed to him by Banwari which he in turn reported to the police by way of first information report. He accompanied the Investigating Officer to the spot where he found his brother lying injured and the two accused-appellants present closely. He also gave out that barcha and gandasa were taken by the police from the spot. He did not say that the two accused-appellants were interrogated and on the information supplied by them the barcha and gandasa were recovered from the chilli fields in view of which the recoveries of the two weapons remained doubtful. He also denied having accompanied his brother Bachan Singh, Banwari and a few others and had fired shot from his gun when his brother was over-powered at the spot and the other members of the party escaped. Chatar Singh Section I. recorded the first information report. A. Section I. Jiwan Das investigated the case and detailed the various steps taken by him in that connection. Ha admitted that Mohan Lai accused at the time of his arrest had injuries and further that the accused had given some counter version of the incident and on that account he had not shown their arrest till 12 at noon on 12th January, 1967. The trial Judge accepted the prosecution version and declined to give any weight to the accused-appellants' plea that Bachan Singh, along with his brother and other bad characters came to their tube-well in order to attack them and in self-defence they caused injuries to him.
8. The learned Counsel for the accused-appellants urged that Gurnam Singh's presence at the time of the incident was doubtful and that the other two eye-witnesses, namely, Bachan Singh and Banwari were highly interested and as such their testimony should not have been accepted in to, particularly when the same failed to get support from the surrounding circumstances. If Gurnam Singh P.W. 5 has played such an important part in the affair; Banwari P.W. would not have failed to describe it to Man Singh who lodged the first information report. The fact that Gurnam Singh's name does not appear in the first information report goes to show that he is a got up witness. He belongs to the same village where Bachan Singh P.W. is married. Therefore it was not difficult to procure his evidence. There was enmity between Bachan Singh P.W. 2 and the two accused-appellants for reasons which have already been recapitulated. Banwari P.W. was his siri. Hence explicit reliance should not have been placed on their depositions and more so when the attending circumstances point out to the contrary, Banwari is said to have been left behind to inform the police on receiving the appointed signal from Bachan Singh. It was a dark night. He was said to have been left on the curve of the thoroughfare. There is no evidence to show that Bachan Singh had previously taken the police into confidence. In this situation the question of Banwari having been left behind with the purpose given out by the prosecution is difficult to be believed. There is no doubt that Bachan Singh went into the area where accused-appellants' tube-well was located and Mohan Lai accused-appellant immediately before his arrest bore marks of injuries. Further the two accused-appellants after causing injuries to Bachan Singh remained on the spot. The police was not able to recover the gun or the empty cartridges at the spot but it is said to have been produced by Mohan Lai from his house.
All these facts go to show that Bachan Singh and Banwari, may be along with others, went to the accused-appellants' tube-well on the night of 11th January, 1967, obviously not for any innocent intentions and caused injury or injuries to Mohan Lal accused who along his brother Muni Lal in self-defence attacked Bachan Singh. The learned Counsel for the State submitted that the two accused-appellants exceeded the right of private defence and thus Caused 32 injuries to Bachan Singh. None of the injuries was on any vital part of the body although the accused-appellants were armed with deadly weapons which indicated that they never wanted to deal with Bachan Singh in a manner not warranted by the exigencies of the occasion. Hence it cannot be said that they exceeded their right of private defence while causing injuries to Bachan Singh. My view finds support from Jai Dev v. State of Punjab : 3SCR489 . The prosecution evidence is tainted and interested and thus was not sufficient to prove that the occurrence took place in the manner set up by it and not as suggested by the defence. This entitled the accused-appellants to acquittal as laid down by the Supreme Court in K.M. Nanavati v. State of Maharashtra : AIR1962SC605 and Balbir Singh Balwant Singh v. The State AIR 1959 Punj 332.
9. The appeal is allowed. The convictions and sentences of the two accused-appellants are set aside. They are acquitted of the charge.