Inder Dev Dua, J.
(1) This is an appeal by the State of Punjab against the judgment of the learned Sessions Judge, Rohtak, acquitting Piare, son of Giani, Brahma, son of ram Narain and Dalel Singh, son of Risal Singh who had been sent up for trial under sections 302/34, Indian Penal Code, for committing the murder of Chandgi deceased on 22nd of July, 1958.
(2) The prosecution story is that the houses of the accused and Chandgi deceased are situated in the same street in village Nilothi. Piare and Brahma accused are first cousins, their fathers being brothers, and Dalel Singh is the son of Piare's brother. At about 3-30 p.m. on 22-7-1958 Piare was digging earth from the street in from of his house with his kasola, Exhibit P. I, and was throwing it against the wall of his baithak. Ram Kanwar P. W. 2 and Ram Phal P. W. 6 sons of Chandgi came up and asked Piare not to dig the earth from the street because by doing so a pit was likely to be formed which would inconvenience them in going to their house and coming from it.
Piare ignored this request. In the meantime Chandgi, father of Ram Kanwar and Ram Phal, also turned up from his field and he too tried to impress upon Piare not to dig the earth. This proved equally ineffective. In the meantime Brahma and Dalel Singh accused also came to the spot from their houses armed with lathis and encouraged Piare to did the earth remarking that they would see who dared to stop him from doing so. Piare thus continued the process of digging the earth though Chandgi again asked him not to do so.
Piare then gave a blow with his kasola on the head of Chandgi who fell down and became unconscious. The other two accused who were armed with lathis also rushed towards him to attach him but in the meantime Malhe P. W. 5, a consign brother of Chandgi, also reached the spot armed with a lathi. He and Ram Kanwar P. W. 2 used their lathis, on account of which Brahma received some injuries. Dalel Singh and Piare stepped back a few paces to avoid being hit. Brahma, it is said, during this occurrence gave a lathi blow to Ram Phal P. w. 6. Hearing the noise Mansa P. W. 7 Dharma and Risala also came to the spot and on alarm being raised the assailants went away to their houses.
Chandgi was put in a cart and brought to the hospital at Sampla which is at a distance of about 8 miles from the place of occurrence where he was examined by Dr. Rajinder Singh P. W. 1 who found a swelling on the left side of his head over the ear which was diffused. Chandgi remained semiconscious and died at 1-10 p.m. on the following day. After leaving his father in the hospital Ram Kanwar P. W. 2 went to the police station and lodged the first information report at about 9-50 p.m. The Assistant Sub-Inspector went to the hospital, but found Chandgi lying unconscious.
He went to the spot next morning at about 7 o'clock and arrested Piare accused. Kasola, the weapon of offence, was duly recovered from Piare's baithak. As soon as Chandgi died Dr. Rajinder Singh sent a ruqqa to the police station, as a result of which the dead body was duly sent to the mortuary at Rohtak for post-mortem examination. The medical evidence discloses a large bruise on the left side of the scalp of the deceased and large subcapitular haemotoma of the left side left side and also a linear fracture of the left side of the skull starting from the left of the mid-lime extending downwards across middle meningeal groove towards the greater wing of spheniod.
There was also a large extradural haemorrhage from middle meningeal vessels. Death, according to the doctor, was due to extradural haemorrhage of skull which had occurred on account of rupture of middle meningeal vessels. The injury caused to the deceased was, according to expert opinion, sufficient in the normal course to cause death.
(3) According to the defence version Dalel Singh was not present at the time of occurrence and Piare was levelling the street in front of his house by digging the earth from the place where the level was higher so as to make the passage level. Chandgi, according to Piare, alone with Ram Kanwar, Malhe and Ram Phal, came up and asked him as to why he was removing the earth from the street in from of their house. Piare replied that he was not doing so.
This led to some altercation and abuses were exchanged. In the meantime Brahma accused came up but he was unarmed, and Malhe P. W. 5 hit Brahma with a lathi, Chandgi and Ram Kanwar thereupon joined Malhe and attacked Brahma. Piare stepped forward in defence of Brahma when Chandgi hit him with a gandasi which injured him on his ankle. Piare thereupon gave him a push as a result of which he fell down against a piece of wood causing injury on his head on account of which he later died in the hospital.
Brahma accused stated that he was coming from his field with this cattle and stopped at the spot on hearing the altercation; he remonstrated with the parties not to fight with each other, but Ram Kanwar and Malhe started hitting him as a result of which he fell down. He, however, snatched the stick of Ram Phal and warded off several blows during which Ram Phal also received an injury on his arm. He expressed ignorance as to how and by whom injury to Chandgi was caused.
(4) The learned Sessions Judge refused to accept the defence version that Chandgi had received the fatal injury as a result of fall on a piece of wood when he was pushed by Piare. According to the Court below medical evidence negatived this suggestion. Out of the prosecution witnesses Ram Kanwar P. W. 2, Malhe P. W. 5, Ram Phal P. W. 6 and Mansa P. W. 7 being eye-witnesses have deposed to the actual occurrence supporting the prosecution story, as stated above.
The learned Sessions Judge has expressly observed that he saw no reason for doubting the evidence of the witnesses that the blow to Chandgi had been given by Piare from the blunt side of kasola, Exhibit P. 1. He has also held the explanation given by Brahma that he did not know how and by whom injury to Chandgi has been caused to be improbable. The learned Sessions Judge has not relied upon the evidence of Mansa P. W. 7 on the ground that his name was not mentioned in the first information report.
The other three witnesses, Ram Kanwar, Malhe and Ram Phal, were considered by the learned Sessions Judge to have made some improvements during the trial by stating that Brahman and Dalel Singh had come armed with lathis to the spot and had exhorted Piare to dig the earth and also that they went forward to attack Chandgi after be had fallen on the ground. These circumstances having not been mentioned in the first information report or in the statements of the witnesses to the police where it had been stated that injuries to Brahma had been caused by Ram Kanwar and Malhe in the exercise of the right of self defence, the learned Sessions Judge felt a serious doubt whether the real truth had not been suppressed by the prosecution witnesses.
On this view the learned Sessions Judge tried to sift the probable truth from false version because admittedly there was a scuffle between the parties and Chandgi had received the injury which later proved fatal. He learned Sessions Judge seems to have apparently been influenced by the fact that only single injury had been caused to Chandgi and a small contusion to Ram Phal.
Holding, on the evidence of the witnesses for the prosecution, that the blow to Chandgi was given by Piare from the blunt side of kasola and repelling the suggesting that the deceased had sustained the injury by a fall on a piece of wood, the learned Sessions Judge felt that the blow by Piare accused from the wrong side of his kasola must have been given in exercise of the right of self-defence. The other two accused were held not to be constructively liable, with the result that all the three acquitted.
(5) On appeal Mr. Jagga has contended that the judgment of the learned Sessions Judge is on the fact of it wrong when it says that Piare accused gave the blow in question to Chandgi in exercise of the right of self-defence; it is argued that there is absolutely no evidence in support of this finding. Mr. Sibal has, on behalf of the accused respondents, strenuously urged that the learned Sessions Judge has disbelieved the prosecution evidence that Piare first gave a blow to Chandgi.
He submits that Mansa whose name was not included in the first information report having not been believed, the remaining three witnesses are highly interested and therefore their evidence should be taken with caution. I do not think the learned counsel is right in his contention. Out of the three witnesses Ra, Kanwar P. W. 2, Malhe P. W. 5 and Ram Phal P. W. 6 I find P. W. 5 is also related to the accused being connected with them through in 7th or 8th degree.
It is true that the court below has entertained a doubt and has observed that the real truth seems to have been suppressed by the prosecution witnesses, but it has expressly believed the evidence of the witnesses who said that the blow to Chandgi had been given by Piare from the blunt side of kasola, Exhibit P. 1. The learned Sessions Judge has arrived at his conclusion with respect to the right of self-defence by considering the probabilities of the case. In my view, the probabilities of the case very strongly point towards the blow having been given by Piare to Chandgi in the first instance.
Had Chandgi decided to give the initial blow to Piare who was digging the earth, the blow would have been far more serious and forceful than what is disclosed by the small cut 1' x 1/4' found on the right ankle joint on the lateral side of Piare accused. This injury is indisputably superficial. Chandgi was a fully developed Jat, 45 years of age, and an aggressive initial blow by him would not have resulted merely in a small cut. Mr. Sibal has next contended that this is after al an appeal against an order of acquittal and therefore unless there are compelling reasons this Court should not reverse the order of the trial Judge.
He submits that the presumption of innocence to which very accused is entitled under the law of this Republic is further re-inforced or strengthened by the acquittal by the trial Judge. There is no dispute with this proposition of law, but, in my opinion, on the existing record the conclusion of the learned Sessions Judge is clearly wrong and effective, and is not sustainable on the evidence on the record. We are, in no way, minimising the effect of the view of the trial Judge as to the credibility of witnesses but are giving to his views full weight and consideration.
If a person who has committed an offence is wrongly acquitted on the erroneous view of the trial Judge that probably the first blow was given by the deceased and that the accused acted in exercise of the right of self-defence and if the evidence on the record clearly establishes that this view of the Judge as to the probabilities is wholly unsustainable and defective, then, in my view, the conclusion of the Judge is tainted with the infirmity which affords a sufficiently compelling reason justifying this Court in reversing the order of acquittal.
It must in this connection be observed that through the above proposition of law advanced by Mr. Sibal is to be applied notwithstanding the dissenting note of Venkatarama Ayyar J. in Aher Raja Khima v. State of Saurashtra. 1955-2 SCR 1285: ( (S) AIR 1956 SC 217), there is also good authority for the view that this Court has full power even to review the entire evidence on which the order of acquittal is based and to come to its own conclusions, as the power conferred under section 417, Code, Code of Criminal Procedure, is in terms unqualified: See Atley v. State of Uttar Pradesh, AIR 1955 SC 807.
In the present case, however, we find that the learned trial Judge has drawn an inference as to what, according to him, must have actually happened by losing sight of the material circumstance that the injury on Piare was most superficial and it could not be presumed to have been caused by the deceased in the first instance. This apart, the learned Sessions Judge has also dealt with the qu3stion of self-defence in a rather superficial and perfunctory manner.
It is true if on the evidence led by the prosecution it clearly appears that the accused had acted in the exercises of the right of private defence then the Court should give effect to it, but in the instant case the trial Judge does not seem to have properly and fully applied his mind to this aspect; he has not even discussed as to how far the injury caused to the accused was justifiable in the circumstances of the case.
The existence of reasonable apprehension of danger to Piare and the extent of harm to Chandgi which may be called for in the circumstances of the present case have also not been given the consideration they deserved at the hands of the learned Judge. On the existing record, therefore, I am clearly of the view that the acquittal of Piare is unjustified and suffers from serious infirmity and has thus resulted in failure of justice.
(6) This brings me to the question of the guilt the accused. It appears that there was certainly some altercation between the parties and in all probability hot words, possibly even abuses were exchanged. Some kind of resort to violence between the parties may also be imminent or foreseeable. The blow to Chandgi having been given by Piare in these circumstances does not, in my view, constitute an offence under section 302 or even under section 304, Indian Penal Code. In my opinion, intention to cause grievous injury under section 325, Indian Penal Code, alone can on the existing record be safely imputed to Piare accused. There is, however, hardly any evidence implicating the other accused by constructively imputing to them the required intention.
(7) For the reasons given above, the appeal as against Brahma is dismissed, but as against Piare it is allowed and setting aside his acquittal he is sentenced to three years' rigorous imprisonment under section 325. Indian Penal Code.
Mehar singh, J.
(8) I agree.
(9) Order accordingly.