S.S. Dewan, J.
1. Tara Singh, his son Maktool Singh, his brother Piara Singh and the latter's three sons, namely, Sukhchain Singh alias Chain Singh, Surta Singh and Kabul Singh, were brought to trial for the murder of Mangal Singh and for causing simple and grievous injuries to the eye-witnesses and for rioting. Piara Singh and Sukhchain Singh were convicted for an offence under Section 302 read with Section 34, I.P.C. and were given life imprisonment each. They all except Surat Singh (since acquitted) were also convicted under Sections 148 and 307 and 324 read with Section 149 and under Section 323, I.P.C. and were awarded varying sentences of imprisonment. All the sentences so awarded were ordered to run concurrently. Feeling aggrieved against, their conviction and sentences, Piara Singh, Sukhchain Singh and Kabul Singh filed appeal.
2. All the accused, the deceased and all the eye-witnesses in this case are descendants of a common ancestor Natha Singh and are collaterals of I and II degrees. Harbans Singh who is unmarried and both deaf and dumb, used to reside with his brother Mangal Singh (now deceased) and his mother in a house built in the fields near the place of occurrence. He owned 2 1/2 kill as of canal irrigated land situated in village Lopoke. This land was given by Harbans Singh for cultivation to accused Piara Singh and Tara Singh, but they were stated to be not giving him his due share of produce. He felt dissatisfied with them, got vacated the land from the possession of the aforesaid accused and started doing self-cultivation of the same. He had sown the first crop in the said land in Rabi, 1973. About 20 days prior to the present occurrence, some dispute arose between Harbans Singh and the said accused, which culminated into cross-security proceedings between them.
3. The prosecution case in brief is, that on 26.6.1973, at about 6 P.M., Har-ban Singh went to his fields to utilise canal water of his turn. He was to receive water after the turn of Piara Singh accused was over. He was yet to divert the flow of water when all the accused armed with different weapons came running towards him. The accused shouted that they would not allow him to utilise the water for irrigation. Harbans Singh being bereft of his powers of articulation and' hearing, started running while raising shrieks on seeing the ac-tused which attracted Mangal Singh deceased, Gian Singh, Hazara Singh, Bal-winder Singh and Smt. Daljit Kaur. Mangal Singh entreated the accused not to commit assault on Harbans Singh and on that the accused gave out that it was he (Mangal Singh) who was instrumental in getting vacated their possession of the land of Harbans Singh. Sukhehain Singh opened the attack by giving a spear thrust in the abdomen of Mangal Singh followed by Piara Singh who gave him a spear blow on his back at the abdominal level. Mangal Singh slumped on the ground.
Tara Singh accused gave two sword kijuries to Harbans Singh followed by Kabul Singh who also gave some injuris to him. Accused Maktool Singh gave a gandasi blow to Balwinder Singh P.W. while accused Surat Singh gave him two sua injuries. Hazara Singh P.W. sustained a sword injury on his person at the hands of Tara Singh accused. The prosecution story goes that Gian Singh apprehending danger to the lives of the aforesaid injured P.Ws,, brought his .12 bore gun from his nearby kotha and fired two shots towards the assailants. Tara Singh and Piara Singh sustained gun shot injuries. Gian Singh arranged a taxi and Ajaib Singh and Sidul Singh removed Balwinder Singh P.W. and injured Mangal Singh (since deceased) to V. J. Hospital, Amritsar, while he himself after leaving Harbans Singh and Hazara Singh at the local hospital, went to Police Station Lopoke and lodged the First Information Report, Exhibit PFF.
4. On 27-6-1973, on receipt of intimation regarding the death of Mangal Singh, Assistant Sub-Inspector Atma Singh (P.W. 13) went to the V. J. Hospital and held inquest and despatched the dead body for autopsy. On the following day, he inspected the spot and prepared its rough site-plan and also picked up blood-stained earth therefrom. He arrested the accused and interrogated them. Tara Singh accused got recovered sword, Exhibit P. 2, Maktool Singh got recovered gandasi, Exhibit P. 3, Chain Singh got recovered barchhi, Exhibit P. 4, Piara Singh got recovered barchhi, Exhibit P. 5 and Kabul Singh got recovered gandasi, Exhibit P. 6, from the specified places of concealment. The Sub-Inspector took into possession copies of Khasra Girda-wari and Jamabandi pertaining to the land where the occurrence took place. Chain Singh and Piara Singh were found to be in conscious possession of spears without licences, and as such two cases under the Arms Act were got registered against them.
5. Three injured witnesses, namely, Gian Singh (P, W. 3), Hazara Singh (P. W. 4) and Balwinder Singh (P. W. 5) lent support to the prosecution version recapitulated above.
6. When examined under Section 313, Cri. P. C. Maktool Singh, Chain Singh and Surat Singh (since acquitted) pleaded alibi, while accused Kabul Singh gave his own version as under:
Our turn of water started at 3.40 P.M. I and Piara Singh accused went to take the turn of water. At that time, I was at the water channel whereas Piara Singh accused was in the field which was being irrigated. When Harbans Singh PW armed with a gandasi and Mangal Singh (deceased) armed with a kirpan came to me at the water-channel, none of them had a kahi. They wanted me to stop watering my field. This happened at 4.30 P. M. I refused to stop watering my field, whereupon Harbans Singh and Mangal Singh abused me and I returned the abuses. They thereupon attacked me. I ran for some distance into the neighbouring field where Harbans Singh and Mangal Singh surrounded me and caused injuries to me. I had a dting having a sua fitted to it. I wielded it (to) ward off their blows. Hazara Singh PW armed with datar, Balwinder Singh PW armed with a dang joined Harbans Singh and Mangal Singh, whereas Piara Singh accused who had a kirpan came from the field which was being watered and Tara Singh accused who had come to take a round of his field also came to my help with a kirpan. The fight went on in which I, along with Piara Singh and Tara Singh caused injuries to Mangal Singh, Hazara Singh Balwinder Singh in self-defence. Gian Singh thereafter came to the scene of occurrence armed with a gun and aimed shots at Piara Singh and Tara Singh which hit them. I. along with Piara Singh and Tara Singh, went to our houses and thereafter we went to Lopoke Hospital, where we were me-dico-legally examined. HC Gurnam Singh, along with some constables, came to the hospital and beat our relations and when I, along with Piara Singh and Tara Singh, was taken to the PS an(J we were produced before ASI Atma Singh. ASI Atma Singh detained Piara Singh and Tara Singh, while he permitted my relations to take him to V. J. Hospital at Amritsar, because I had serious injuries on my person.
7. His other co-accused, namely, Tara Singh and Piara Singh pleaded the same version given by Kabul Singh accused.
8. Shri M. R. Mahajan, learned Counsel for the appellants, at the very outset urged that the accused committed no offence as they caused injuries to the deceased and his companions in exercise of their legitimate right of private defence of person. He stressed that the stand taken by the appellants is more probable as a fairly large number of injuries from sharp and blunt weapons on their side lends credence to their version and legitimately the plea of self-defence advanced by him on their behalf.
9. After hearing the learned Counsel for both the sides and after perusing the material on record with their help, we are of the opinion that this appeal must succeed. The occurrence in which Man-gal Singh lost his life and three injured prosecution witnesses and three of the five accused, namely, Tara Singh, Piara Singh and Kabul Singh received injuries, stands admitted. However, the parties seriously differ from each other regarding the manner in which Balwinder Singh, Hazara Singh and Harbans Singh were assaulted and the sequence of events that led to the occurrence in which Mangal Singh lost his life.
9A. Before proceeding with the examination of the contention of self-defence advanced by the learned Counsel for the appellants, it would be desirable to have some idea of the injuries suffered by both sides in the occurrence.
10. Dr. H. B. Greezy (P. W. 2) conducted the post-mortem examination on the dead body of Mangal Singh, on 27-6-1973 at 2.30 P. M. and found two incised wounds. The injuries were ante-mortem and were caused both by the sharp edged and pointed weapons. He, however, opined that the probable time that elapsed between injuries and death was a few hours and between death and post-mortem about 18 hours. In the opinion of the doctor, the death was due to injuries to gut and haemorrhage due to shock which was sufficient to cause death in the ordinary course of nature.
11. Dr. Kuldip Kumar (P. W. 1) examined Harbans Singh P.W., on 20-6-1973 at about 9 P.M., and found 5 injuries, including 4 incised wounds, According to him, all the injuries were simple in nature, caused with sharp edged and blunt weapons, within a duration of 12 hours.
12. On the same day, at 9-30 P.M., he examined Hazara Singh P. W. and found two simple injuries on his person, caused with a sharp edged and blunt weapons, within a duration of 12 hours.
13. The doctor, Kuldip Kumar examined Tara Singh, accused, on the same day at 10 P.M., and found a gun shot wound on the inner aspect of the left arm. The said injury was opined to be simple in nature, caused within a diftation of 12 hours. He examined Kabul Singh accused at 7-15 P.M., and found as many as 8 injuries, including 4 incised wounds on different parts of his body. Injuries Nos. 3 and 4 were opined to be dangerous, while the rest simple. Injuries Nos. 1 to 5 were stated to be the result of sharp edged weapon, while injuries Nos. 6 to 8 with a blunt weapon. On the same day at 8-15 P.M., he examined Piara Singh accused and found 5 gun shot wounds and one incised wound on his person. Injury No. 1 was simple in nature and while injury No. 2 was opined to be dangerous, caused within a duration of 12 hours.
14. The above break-up of the injuries would show that the appellants' side suffered as many as 15 injuries from gun-shot, blunt and sharp weapons, out of which, three were dangerous, whereas the complainant party suffered 9 injuries.
15. The point that falls for determination is as to whether the fight originated in the manner as suggested by the prosecution or as suggested by the defence, While considering this aspect we have to keep two circumstances in view; firstly, that all the eye-witnesses are partisan and inimical and secondly the probability of their respective versions.
16. Of course, there can be no doubt about the presence of Hazara Singh and Balwinder Singh at the time of occurrence as they happened to be stamp witnesses but being partisan, and inimical witnesses, they are likely to suppress their own part and exaggerate that of the opposite party in a occurrence in which both sides inflicted injuries on each other and so the version given by them has to pass the test of probabilities. In the premises the testimony of the eye-witnesses has to be scanned and scrutinised very closely and critically. It is borne out from the record that the accused party had as many as 15 injuries on their bodies. It is difficult to imagine that the large number of injuries were inflicted by the accused party by themselves with their own gun, gandasi and kirpan.
The prosecution, thus, suppressed the fact that the witnesses did not cause any injury to Kabul Singh. Gian Singh P. W. 1, however, admitted having fired a shot from his gun which hit Tara Singh and Piara Singh. In that context the denial of the injured witnesses that they did not assault Kabul Singh accused can hardly be believed, in view of the fact that he had sustained as many as 8 injuries out of them injuries Nos. 3 and 4 being dangerous. On this aspect of the matter, the prosecution does not have any rational explanation. On the contrary, the version pleaded by the defence appears to be rational and more probable.
17. A large number of injuries on the accused party probabilises the defence version that the members of the complainant party were the aggressors who indiscriminately assaulted Kabul Singh, Tara Singh and Piara Singh, being armed with gun, gandasi and kirpan. The accused had right of private defence of body under Section 97, I. P. C. Under Section 100, I. P. C, the right of private defence of body extends to causing of death if there is reasonable apprehension that grievous hurt would be the consequence of the assault.
18. If the defence version of the story that the deceased and Harbans Singh, Hazara Singh, and Balwinder P. Ws. assaulted them first indiscriminately, be reasonably probable, though the same may not be proved beyond reasonable idoubt, the accused are entitled to right of private defence of body so as to cause death, inasmuch as the multiple injuries inflicted on them with gun shot and other lethal weapons like gandasi and kirpan, were enough to create a reasonable apprehension in their minds that grievous hurt would otherwise be the consequence. In fact, injuries Nos. 3 and 4 on the person of Kabul Singh and injury No. 1 on the person of Piara Singh, were dangerous. The other injuries on the accused, though not grievous, were on the vital parts of their bodies. Such an assault on the accused was bound to create reasonable apprehension in their minds that grievous hurt, if not death, would be the consequence.
On the aforesaid anarysis, the true state of affairs on the record as appears to us, is that the prosecution had advanced a false story that Gian Singh had fired a shot from his gun by aiming at the accused just to scare them away, or that Kabul Singh was not assaulted by the witnesses. The version given by the defence that they were attacked first and were given various injuries indiscriminately, appears to be reasonably true. At any rate, the prosecution has suppressed the true version of the story and the Court is not in a position to arrive at the truth so as to discard the defence version as not being reasonably true. The conviction under Section 302, I.P.C., cannot be based merely on the bald conclusions that the deceased died as a result of the spear biows deliberately given by the accused Piara Singh and Chain Singh.
19. Gian Singh (P. W. 3) has made contradictory statements in the First Information Report, Exhibit PFF and at the trial. In the first information report, his stand was that he had fired his gun in the air and did not cause any injury to the accused and that seems to be only an attempt on his part to steer clear himself of the culpable part of his act. At the trial, he admitted having fired a shot from his gun and as a result thereof Tara Singh and Piara Singh sustained injuries. Gian Singh stated at the trial that Surat Singh (since acquitted) had given two sua blows on the person of Balwinder Singh, while in the first information report it was recorded that Surat Singh caused only one spear blow to Balwinder Singh.
The prosecution had gone still further to improve their case and probably to bring in the element of constructive and vicarious liability when they tried to put words into the mouths of all the accused as a prelude to the assault that it was deceased Mangal Singh who was instrumental in getting vacated the land of Harbans Singh from their possession. These words were attributed to all the accused. Now this aspect of the prosecution case does not find mention in the first information report, or in the statement of any witness recorded under Section 161, Cr.P.C.
It is obvious, the prosecution in their anxiety to implicate all the accused in the murder of Mangal Singh had tried to spread the net wide enough by bringing in the improvements in the prosecution story. On this point of fact, there was no reason why this material fact would not have found mention in the first information report and also in their statements before the police. It is, thus clear that there are contradictions in the statements of the eye-witnesses who also made improvements upon their earlier statements, and, therefore, it leaves an impression in the mind of the Court that they had no scruples to tell lies.
20. We are satisfied that the prosecution has failed to establish the case beyond reasonable doubt. The appeal is allowed and the convictions and sentences passed on the appellants are set aside and they are acquitted of all the charges. The appellants are on bail and as such their bail bonds stand discharged.
B.S. Dhillon, J.
21. I agree.