Muni Lal Verma, J.
1. The appellants and their brother Mohinder Singh as well as Niranian Singh, since deceased, had been residing in village Gurney Kalan. In or about the year 1969, Mohinder Singh, the brother of the appellants, had been murdered and Niran-jan Singh was prosecuted for causing his murder. He (Niranian Singh) was, however, acquitted in that case about 9 months before the present occurrence. He was married to Smt. Pritam Kaur whose parents lived in village Achharwal. Apprehending danger to his life from the appellants he (Niranjan Singh) along with Smt. Pritam Kaur had migrated to village Achharwal and began to reside in the house of the parents of Smt. Pritam Kaur.
2. Two or three days before the occurrence, Niranjan Singh and Smt. Pritam Kaur had returned to village Gurney Kalan from Achharwal with a view to settle the accounts respecting their crops standing in land there. On October 7, 1970, at about 1.00 p.m. Niranjan Singh and Smt. Pritam Kaur proceeded towards the bus-stand Gurney Kalan with a view to board a bus from there for Achharwal. He was then carrying a kirpan and a ihola, Surmukh Singh and Mukhtiar Singh were going towards their fields at a short distance behind them. When Niranjan Singh was at a distance of about one hundred yards from the bus-stand he was surprised by the appellants who were then hiding themselves against a wall. Both of them had one gandasa each. Throwing challenge to Niranjan Singh that they would avenge the murder of their brother Mohinder Singh they set upon him and wielded blows with gandasas. Niranjan Singh drew out kirpan from the scab-board and wielded blows with it in defence. Mukhtiar Singh appellant struck gandasa on the head of Niranjan Singh and Bhura too hit gandasa on his head and Niranjan Singh fell on the ground. Both the appellants then delivered numerous blows with gandasas to him. Smt. Pritam Kaur raised alarm! The appellants, however, deterred her and Mukhtiar Singh as well as Surmukh Singh bv shouting that if they intervened thev would be killed. Having done away with Niranjan Singh, the appellants went away carrying their weapons with them. While running away Mukhtiar Singh had. however, dropped his shoes at the scene of occurrence. After the departure of the appllants, Smt. Pritam Kaur, Surmukh Singh and Mukhtiar Singh P. Ws. went to Niranjan Singh and found that life was extinct in his body. So, Surmukh SinRb returned to the village and informed his brother Sewa Singh about the incident and along with him returned to the scene of incident. Leaving him, Smt. Pritam Kaur and Mukhtiar Singh at the spot, he proceeded to Police Station. Bhikhi. Village Borawal fell on the route. He chanced to meet A, S. I. Ranjit Singh there and narrated the incident to him. A. S. I. Ranjit Singh sent the report, made by him, to Police Station, Bhikhi. where a case under Section 302 read with Section 34, Indian Penal Code, was registered. He accompanied Surmukh Singh to the scene of incident and found Smt, Pritam Kaur. Mukhtiar Singh and Sewa Singh there. He recorded their statements and held inquest on the dead-body of Niranjan Singh and sent it to Civil Hospital, Mansa, where Dr. Inderjit Singh conducted autopsy on it. He collected blood soaked earth, jhola, chadra turban and Kirpan of the deceased as well as shoes of Mukhtiar Singh appellant from the scene of occurrence. On the next day, i.e.. on October 3. 1970, Mehar Singh produced both the appellants before S. I. Kartar Singh and they produced one bloodstained gandasa each. They had injuries. So, they were sent to Primary Health Centre, Bhikhi, where Dr. S. P. Sharma examined their injuries. The Police, Bhikhi, after necessary investigation, sent up the appellants under Section 302 read with Section 34, Indian Penal Code, and the learned Magistrate committed them to the Court of Session, Bha-tinda, to stand trial for the said offence. Thus, in brief, is the prosecution case.
2. The appellants denied the prosecution story and raised the plea of defence, which would be discussed hereun-der at its proper place. The learned Additional Sessions Judge, Bhatinda. who tried the case, accepted the prosecution version and rejecting the plea of defence as false, convicted the appellants under Section 302, Indian Penal Code, and sentenced them to imprisonment for life with a fine of Rs, 1,000/- each; in default the defaulter was to suffer rigorous imprisonment for six months. Aggrieved by their conviction and sentence, the appellants have appealed.
3. The facts, that the appellants are brothers and about a year prior to the incident their brother Mohinder Singh had been murdered by Niranian Singh and he was prosecuted for the said murder but was acquitted, are admitted, The facts that the incident had taken place near bus-stand, Gurney Kalan, on October 7, 1970. at about 1 p.m. and therein injuries had been caused to Niranjan Singh with gandasas as a result of which he had died and that he had wielded' blows with Kirpan and both the appel- lants were involved in the incident, are borne out by the evidence present on record and are not disputed. The evidence relied on by the prosecution consists of motive, ocular and medical.
4. The attack of S. Dara Singh, learned Counsel for the appellants, has been that Niranjan Singh wielded blows with Kirpan to Mukhtiar Singh appellant and in order to save him, Bhura appellant had alone caused injuries to him (Niranjan Singh). His argument and criticism, for the reasons to be recorded hereunder, are wholly insusceptible. Since Niranjan Singh had been tried and acquitted of the charge of causing the murder of Mohinder Singh the brother of the appellants, the latter could have carried rancour and had motive to commit the crime. Sensing trouble from the appellants, Niranjan Singh had, as stated by Smt. Fritam Kaur. migrated from his village Gurney Kalan to village Achhar-wal and took up residence with her parents after his acquittal in the aforesaid murder case. True, the prosecution of Niranian Singh in the said murder case could have insensed him against the appellants, but the fact that he had migrated to yillage Achharwal after his acquittal in the said case and the other circumstances of the case afford evidence to show that Niranjan Singh apprehended danger from the appellants and it was for this reason that he had moved to village Achharwal, else he could stay in his village Gurney Kalan if he had any intention to avenge the humiliation which he had suffered due to his prosecution in the said murder case. Motive may not, by itself, be proof of the guilt of the appellants, but it is relevant since it makes ,he prosecution story probable.
5. Smt. Pritam Kaur (P. W. 3) and Surmukh Singh (P. W. 4). who gave ocular narration of the event, supported the prosecution version in its entirety. They have unanimously deposed that the appellants, who were hiding against the wall, confronted Niranian Singh when he along with Smt. Pritam Kaur was proceeding towards the bus-stand, Gurney Kalan. They were then carrying one gandasa each and they shouted to Niranian Singh that they would avenge the murder of their brother Mohinder Singh. They went on to state that Niranian Singh, when placed in that situation, drew out the sword from the scabbard, and when the appellants aimed blows with gandasas towards him, he wielded blows with it (the kirpan) towards them. They are positive in their statements that Mukhtiar Singh struck gandasa on the head of Niranjan Singh and then Bhura Singh hit gandasa on his head, as a result of which he fell on the ground. Even then he was not spared, and the appellants, the eye-witnesses maintained, de- livered further blows with gandasas to him. Thereafter, the appellants bolted, carrying the gandasas with them. When Smt. Pritam Kaur and Surmukh Singh attended to Niranjan Singh after their departure, they found him dead. True, Smt. Pritam Kaur is the widow and Surmukh Singh as well as his brother Sewa Singh are first cousins of the deceased. But the statement of a witness, who is related to the deceased, is not necessarily interested evidence. The evidence given by a relation is rather more trustworthy and acceptable than other evidence, because he would be the last person to screen the real offender. Since Niranjan Singh had come to village Gurney Kahn to settle accounts respecting the crous standing in his land, it sounds probable that his wife Smt. Pritam Kaur had accompanied him to that village from Achharwal. On the day of occurrence. Niranian Singh was returning to Achharwal. So. it sounds natural that Smt. Pritam Kaur was accompanying him and, us such, her presence at the time and scene of incident seems unassailable. Surmukh Singh accompanied by his brother Mukhtiar Singh was proceeding towards his fields, Having regard to the time and conditions prevailing in the villages, it sounds probable that they were then going towards their fields. Immediately after the incident. Surmukh Singh had returned to his house in village Gurney Kalan and informed his brother Sewa Singh about the incident, and he took him to the scene of incident. Sewa Singh affirmed that he had then seen Smt. Pritam Kaur and his brother Mukhtiar Singh fitting near the dead-body of Niranjan Singh. Smt. Pritam Kaur stated, and similar is the statement of Sewa Singh, that she had informed him (Sewa Singh) about the incident. Sewa Singh (P. W. 5). therefore, lends support to the prosecution case that Smt. Pritam Kaur and Surmukh Singh had witnessed the incident, and corroborates their statements that the appellants had caused injuries to Niranjan Singh resulting in his death.
6. The incident had taken place at 1 p.m. near the bus-stand, Gurney Kalan. Firstly, as indicated above, Surmukh Singh had gone to his house located in the abadi of village Gurney Kalan, where he narrated the incident to his brother Sewa Singh and brought him to the scene of incident. This must have taken some time. He then proceeded towards Bhikhi, and made report (Exhibit PJ) about the incident to A. S. I. Ranjit Singh at about 2.30 P, M. in village Borawal, which is about 2i kilometers from Gurney Kalan. The said report (Ext. PJ) contains the earliest version, which is exactly the same which has been related by Surmukh Singh and Smt. Pritam Kaur. Therefore, that report (Exhibit PJ) corroborates the statement of Surmukh Singh and reads consistent with the prosecution case. Smt, Pritam Kaur and Surmukh Singh were empty-handed while the appellants were -armed with gandasas. and they had delivered numerous blows with the same to Niranjan Singh even after his fall. When Smt. Pritam Kaur and Surmukh Singh raised alarm, they were deterred by the appellants by shouting that if they intervened, they would be put to death. In that situation and having regard to human nature, as it is, neither Smt. Pritam Kaur nor Surmukh Singh could dare to intervene physically to save Niranjan Singh from the onslaught committed upon him by the appellants. So, their conduct at the time and scene of incident and thereafter is not censurable. Their statements read consistent inter se and also fit in with the probabilities and circumstances of the case and we see no reason to disbelieve them. Therefore, we are satisfied that Smt. Pritam Kaur and Surmukh Singh are reliable witnesses and the version, unfolded by them, sounds genuine.
7. Dr. Inderjit Singh (P. W. 1) who conducted autopsy on the dead-body of Niranjan Singh on October 8, 1970, at 10.30 A. M., found 7 incised wounds on the head. 4 incised wounds and one contused wound on the face, and 4 abrasions on the other parts of the said dead-body. He testified that 4 of the incised wounds, inflicted on the head, and an incised -wound caused on the face of Niranjan Singh, were individually sufficient in the ordinary course of nature to cause his -death, and that he had died within a few minutes from the receipt of the injuries. The ocular testimony, as discussed above, is that the appellants had dealt blows -with gandasas to Niranajn Singh and he died at the spot. Dr. S. P. Sharma (P. W. 2). who examined the appellants, found an incised wound on the left thumb any an incised wound on the right hand and two abrasions and two bruises on the right elbow and knees of Mukhtiar Singh -on October 8, 1970, and an incised wounrt on the right upper arm of Bhura Singh on that day,. It is in evidence from the eye witnesses that Niranjan Singh had 'kirpan and he had wielded blows with the same to the appellants with a view to save himself. Smt. Pritam Kaur and also stated that Mukhtiar Singh had fallen -on his knees when he was running away. Therefore, her statement explains the abrasions and bruises sustained by him on his right elbow and knees. It is, thus, clear that the medical evidence reads consistent with the ocular testimony and renders necessary assurance to the prosecution case.
8. Bight of private defence of I body as well as of property has been pro- vided by statute. It is a right of protection and not of vengeance or aggression. The statute, while granting the said right of private defence, has subjected it to certain limitations and restrictions. The said right of private defence is always subject to the restrictions provided in Section 99, Indian Penal Code. One of the said restrictions is that it (the right of private defence) in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence,. The right of private defence of body extending to causing the death, of course subject to the restrictions provided in Section 99, Indian Penal Code, arises from an assault, which may reasonably cause the apprehension that death or grievous hurt will otherwise be the consequence of such assault (vide clause First and Secondly of Section 100, Indian Penal Code). The said right of private defence of body commences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence of death or grievous hurt, and it continues as long as such apprehension of danger to the body continues (vide Section 102, Indian Penal Code), It is, thus, clear that right of private defence of body commences even when there is threat of attack on a person and it is available so long as the danger in that respect continues. It is also clear that as soon as the cause for reasonable apprehension of danger to the body disappears i.e., the threat has either been destroyed or has been put to rout, there is cessation of the right of private defence of the body. So, if a person is about to be hit by another with a weapon just like lathi or a gandasa. he can be said to have reasonable apprehension of danger to his body and as such, he is entitled to beat back his assailant by administering blows to him and thereby disable him, in exercise of right of defence of body. He need not wait till he is hit by his adversary. But as soon as he disables his adversary by infliction of blow or blows on his head or any other part of body and throws him (the adversary) on the ground and there is nothing to show that he (the fallen adversary) could stand up or made any attempt to do so, the apprehension of danger to the body disappears and the right of private defence of body comes to an end. Whether a person claiming the right of private defence of body had any reasonable apprehension of danger or not, depends on the state of his mind and also the situation in which he had been placed at the relevant time and no one can say what was passing in his mind at that time. It is, however, for him, who pleads the right of defence of body, to prove the circumstances giving rise to the exercise of the said right and also that it continued till he had given the last blow, The important conditions for application of Exception 2 to Section 300, Indian Penal Code, which deals with causing of death in excess of right of private defence, are (i) that the offender must have acted in good faith while exercising the right of private defence, (ii) that the act resulting in culpable homicide must have been committed by him without premeditation, and (Hi) without any intention of doing more harm than is necessary for the purpose of such defence. The last condition of the said Exception is necessary corollary to Section 99, Indian Penal Code. According to Section 52, Indian Penal Code, nothing is said to be done in good faith, which is done without due care and attention. It is cardinal principle that1 right of private defence is available only against an act which is an offence affecting human body. The act. which is committed in exercise of right of private defence, is legitimate and does not amount to an offence. Therefore, an act done in exercise of the right of private defence does not give rise to any right of private defence in return.
9. Smt. Pritam Kaur (P. W. 3) and Surmukh Singh (P, W. 4) who, as discussed in para 5 above are, reliable and truthful witnesses, have sworn that both the appellants had been hiding themselves against a wall and they surprised Niranjan Singh when he was proceeding towards the bus-stand and both of them were then armed with one gandasa each. Both the said witnesses added that the appellants challenged Niranian Singh by shouting that they would avenge the murder of their brother Mohinder Singh and both of them had assaulted him. Placed in that situation, and also with the background that he had been acquitted in the case in which he had been tried for the murder of the brother of the appellants, Niranjan Singh could legitimately and reasonably apprehend his death or at least grievous hurt from the aforesaid assault committed by the appellants on him. Therefore he was justified in drawing out the sword from the scabbard and using the t same in wielding blows with it. even in the first instance, to the appellants in order to defend himself. Therefore, it was he who had the right of private defence of body, and his act in wielding blows with Kir pan in exercise of the said right of defence could not give any right of private defence to the appellants. The ocular testimony is positive that on receipt of two gandasa blows, dealt by both the appellants, on his head, Niranjan Singh had fallen on the ground, and thereafter both the appellants delivered several blows, fourteen in number, with gandasas, held by them to him (Niranjan Singh). There is nothing on the record to show that Niranjan Singh had stirred or that he had made any at- tempt to stand up again after his fall on the ground. Therefore, the action of the appellants in delivering numerous blows with gandasls to Niranjan Singh, when he was lying helpless and motionless ore the ground after his fall, was admittedly cruel and unusual. Law, as discussed above, does not permit causing of injury or injuries which are out of proportion to-the danger. As discussed in para 6 above,, it is in evidence from Dr. Inderjit Singh that four out of the seven incised wounds r caused on the head, and another incised wound, which had been caused on the neck and right half of the face, were individually sufficient in the ordinary course of nature to cause death, Therefore, it cannot be gainsaid that at least two injuries, out of four injuries, which were sufficient in the ordinary course of nature to cause death, had been caused by the appellants on the head of Niranjan Singh after his fall on the ground and injury No. 9, which was on the neck and right half of face and was also sufficient in the ordinary course of nature to cause death, had also been caused to him after his fall. So, in view of the law. discussed above, there could be no escape from the conclusion that, firstly, the appellants had no right of defence of body, and in the alternative, even if it is assumed for the sake of argument - though not conceding - that they had one, the said right of private defence had disappeared and came to an end after the fall of Niranjan Singh on the ground, and the appellants had not acted in good faith in causing further injuries and they had admittedly caused more harm than was necessary for the purpose of the defence.
The defence version as disclosed by the appellants in their statements under Section 342, Criminal Procedure Code, is that it was Niranjan Singh, who had challenged Mukhtiar Singh appellant when he-met him near the bus-stand, for implicating him for the murder of Mohinder Singh, and set upon him with his sword. Mukhtiar Singh ran for safety and Niran-jan Singh chased him for about 100 yardy and then he dealt blows with Kirpan, which he (Mukhtiar Singh) had warded on his hands. Thereafter, they grappled and had fallen on the ground. Exactly at that moment, Bhura Singh appellant was attracted to the scene of incident and when he asked Niranjan Singh as to why he was beating Mukhtiar Singh, he (Niranian Singh) attacked him and he delivered blows with gandasa to him in defence. According to Section 105. Evidence-Act, the onus to prove the aforesaid circumstances, which could give rise to the right of private defence of body to the-appellants, was upon them and the Court has to presume the absence of such cir- cumstances. The record bears no material or evidence which can bear out the aforesaid defence version of the appellants or show any circumstances under which they could claim the right of private defence. So. the aforesaid plea of defence of body, raised by the appellants, falls to the ground, being not supported by any evidence and rebutted by the prosecution evidence. Further, as discussed above, the appellants could not possibly claim any right of private defence for causing injuries, which admittedly included four injuries, which were sufficient in the ordinary course of nature to cause death, which had been inflicted on Niranjan Singh when he was lying helpless on the ground. So, on a careful consideration of the entire evidence and circumstances of the case, we are fully satisfied that the plea of private defence of body, raised by the appellants, is not sustainable, and we have no hesitation in rejecting the same as false.
10. It, thus, follows from the discussion above that the prosecution evidence proves unmistakably that both the appellants had waited for Niranjan Singh at a distance of about 100 yards from the bus-stand. Both of them were then armed with one gandasa each. Both of them had jointly assaulted him and both of them had caused injuries to him with gandasas and did not spare him even after his fall, and had further caused several injuries, including fatal ones, to him. So, it has been conclusively proved that both the appellants had caused the death of Niranjan Singh by causing injuries with gandasas to him. Therefore, it is difficult to resist the conclusion that both the accused had common intention to cause the death of Niranjan Singh and it was .in furtherance of that common intention that both of them had caused his death, which admittedly amounts to murder. Since the evidence present on record does not render any assistance to conclude as to who out of the appellants had caused fatal injuries or any one of the same to Niranjan Singh we feel that both of them are guilty of the offence punishable under Section 302 read with Section 34, Indian Penal Code. Therefore, it would be proper to convert their conviction, recorded by the trial Court under Section 302. Indian Penal Code, into the one under Section 302 read with Section 34, Indian Penal Code. No prejudice, in the circumstances of the case, would be caused to the appellants by the said conversion of their conviction.
Consequently, we alter the conviction of the appellants recorded under Section 302, Indian Penal Code, into the one under Section 302 read with Section 34, Indian Penal Code but we maintain the sentence awarded to them by the trial Court and dismiss this appeal. We direct that the amount of fine, if realised, shall be paid to Smt. Pritam Kaur by way of compensation.
11. I agree