S.K. Kapur, J.
1. This appeal is directed against the judgment of Additional Sessions Judge, Delhi, dated December 7, 1962, whereby he gave the respondents benefit of doubt and acquitted them of charges underSub-section 304/34 and 323/34, Indian Penal Code.
2. The occurrence in which Prahlad lost his life as a result of injuries inflicted by Mahadev and Jagdish respondents, took place on March 18, 1962, at about 7 p. m. The case of the prosecution as given in the first information report] and broadly disclosed fay the prosecution witnesses is, that Prahlad deceased had temporarily shifted his residence to Katra Neel Delhi, and entrusted his house No. 8/2547 and 2548 to Mahadev and Jagdish respondent and Ramesh and Manohar, his neighbours. Prahlad's efforts to get back the house, not having succeeded till 1959, he filed a suit for possession of the house against the respondents, Brij Lal Ramesh and Manohar, which was decreed on February 24, 1961. The prosecution has then brought on record some previous history of resistance in 1961 by the respondents when Prahlad accompanied bailiff for execution of the decree. Previous resistance and even beating of Prahlad is evidenced by warrant of possession dated July 17, 1961, issued by Shri K. L. Darshan, Subordinate Judge, 1st Class, Delhi, and the reports by Prahlad and the bailiff dated July 19, 1961, on the said warrant. Both the reports point out that when Prahlad tried to enter into house No. 2547 both the respondents along with some others save him beating and he thought that possession could be taken only with the police aid. The prosecution story then proceeds that on March 18, 1962, Prahlad accompanied by the bailiff and police went to the spot again to take possession of house No. 2547 only in pursuance of warrant of possession P. W. 8/A, dated March 17, 1982. This warrant for possession was only for one room in house No. 2547 because in respect of the portion bearing No. 2548 Mahadev's son had obtain-ed a temporary injunction against dispossession. The possession was delivered on that day between 3 and 4 p. m. There was, according to the prosecution, a khokha (a dilapidated wooden structure made with wooden planks) on the roof of portion No. 4547 and possession thereof was delivered by demolishing the same. The dismantled planks (Exs. P.4 and P.5) were thrown in the street.
3. After delivery of possession, all, including the respondents went to the police station and a report was recorded that the possession had been delivered. The said report was got entered by Net Ram P. W. 9, Assistant Sub-Inspeetor Police, Jama Masjid, Delhi. The report was signed by the respondents, Prahlad, bailiff and some others. In the said report there is no mention that khokha was got dismantled. The explanation offered by Net Ram P.W. 9 is that a mention thereof was not considered necessary. The said report (Ex. P. K ) is recorded at 16-20 hours. At police post where the patties had gone for the delivery of possession being recorded it was settled that the planks will be handed over to the respondents.
On way back from the police post the respondents are alleged to have remarked that Prahlad had taken possession of the house, but they would take his life. On this Prahlad and Hemraj P. W. bolted the door from inside and got on to the roof of house 2547 with a view to cleaning the same. The respondents also climbed up the roof of house No 2548 by placing a ladder against the wall of the house and insisted on replacing the planks from where those had been removed. Prahlad tried to dissuade them and thereupon Jagdish respondent lifted a plank (Ex. P-3) lying on the roof of house No. 2548 and struck the deceased on his left arm, Mahadev caught hold of a seru (a thick bamboo stick used as arm of a cot), Ex. P.2, and struck it on Prahlad's head. The spectacles of Prahlad fell down and as he bent to pick them up both the respondents went on beating him. Prahlad fell unconscious and died in the hospital. Report of his death was received by Sub-Inspector Harphool Singh P. W. 19 at 4.30 a. m. on March 19, 1962. First information report was made at 3/4 a. m. on March 19, 1962. It is necessary at this stage to set out the injuries on the person of Prahlad, Mahadev and Jagdish. Dr. G S. Mittal, Police Surgeon, Delhi, conducted the post-mortem examination on the body of Prahlad on March 19,1962, at 15-30 hrs. and found the following injuries:
1. Bruise 4 1/2' x 1' on outer aspect of right arm middle third;
2. Bruise with abrasions 3/4' x 1/2' on right side face 1' away from the eye;
3. Abrasion 1/2' x3/4' on right side fore-head half an inch above the eye;
4. Two small abrasions on back of left hand and left arm.
According to the said witness there was a defused swelling over right temporal and occipital regions. Effusion oE blood in the scalp right parietal right temporal and occipital regions. Fissured fracture of right frontal bone extending to the right temporal bone. Death, according to the witness, was due to fracture of skull and intracranial haemorrhage. Injuries on the persons of Jagdish and Mahadev were Jagdish : 'Contusion left temple 1/2'x 1/2' with a central contused lacerated wound 1/4' x1/4' Mahadev:
1. ''Confused lacerated wound just above the right eyebrow on its outer side 3/4' x1/1 ' x skin deep.
2. A contusion on the bolar aspect of the right forearm lower one fourth 1/2'x 1/2.
3. A contusion on the right side on the chest upper part 1' x 1. According to the evidence of Dr. Ramesh Chand, Assistant Surgeon Police, all the injuries on the persons of Mahadev and Jagdish were simple.
4. Now we come to the defence case. It is alleged by the defence that there was no wooden structure or khokha on the roof of house No. 2547. It was in fact on the roof of house No. 2548. The warrant for possession was also for only a room in portion of house No 2547. When the bailiff accompanied by Prahlad went to the house for execution of the possession warrant the room was lying vacant and there were no shutters in the same. The possession was taken by Prahlad who placed his belongings in the room. They then went to the police post for reporting about the delivery of possession. The respondents thereafter did not go with Prahlad at all but Jagdish went to his shop and Mahadev to his house. After about two hours Jagdish saw Hemraj, his son, Prahlad and two labourers dismantling their khokha over the roof of house No. 2548. Both the respondents started in that direction and they got on to the roof of house No. 2548 and protested against the demolition. Hemraj and his son attacked the respondents with planks, Prahlad tried to pull a plank and fell down. Jagdish in his statement under Section 342, Criminal Procedure Code, states that 'we also hit back in self-defence. Other persons Intervened and separated the two sides.' Mahadev states.... On seeing me Prahlad came in rage and dragged a phata from the khokha which was on the roof of house No. 2548. The phata got broken and Prahlad fell down. Hemraj and Surrinder ran towards me with 'phattas' and they inflicted injuries on me and I also snatched the phata from them and used the same against them--Hemraj and Surrinder in self-defence....
5. Delivery of possession is evidenced by Hem-Raj P. W. 1, Murari Lal P. W. 4, Hem Chand P. W. 6, Roshan Lal P. W. 8, Assistant Sub-Inspector Net Ram P. W. 9, Constable Ranjit Singh P. W. 10, Mukat Behari P. W. 14 and Dharam Pal bailiff P. W. 16. Each one of the witnesses, except the bailiff, above-mentioned has stated that the khokha was on house No. 2547 and was dismantled at the time of delivery of possession. It was suggested by the defence in the cross-examination of HemRaj P. W. 1, that the Khokha was on the roof of house No. 2548 which was denied by the witness. Similar suggestion was made to Murari Lal P. W. 4, but he also denied the same. In his evidence before the committing Magistrate Murari Lal had stated that the khokha was on the adjoining roof. This statement was put to the witness but he denied having made any such statement. According to Mr. Mathur, the Learned Counsel for the respondents this statement of Murari Lal conclusively proves that the wooden structure was on the roof of house No. 2548. One question that would, therefore, arise for determination is whether there was a khokha on house No. 2547 or not. If it was there then obviously the possession thereof was delivered to Prahlad through the bailiff. Consequently the respondents would have no right of any property in the said structure and if still they climbed up the roof of house No. 2548 either with a view to getting the planks reinstalled or for stopping its demolition they would be doing so without any legal right or justification. It is of significance to notice that in Exhibit P. W., 8/A which is a copy of the warrant for possession dated March 17,1962, or in any of the endorsements thereon, there is no mention of the existence of the khokha. As a matter of fact one of the notes thereon is a request by Prahlad decree-holder dated March 18, 1962, pointing out portion No. 2547 of which he was seeking possession. In the said note it is stated that the property of which possession is sought is lying open and vacant and it has no shutters.
Again on another note signed by Prahlad acknowledging the receipt of possession it is stated--
I have taken the full possession of the site in dispute, i. e. house No. 2547 marked 'C' which is vacant vide note on this warrant through the Court bailiff and the police....
In this also one finds no mention of either the existence or of the demolition of any wooden structure. This note is followed by a receipt in the hands of Prahlad which is in Hindi and when translated teats thus:
The wooden planks lying on the roof are mine. I have taken complete possession of the property marked 'C'. I have placed my ornaments, clothes and other articles etc. therein yesterday.
Mr. Mathur the Learned Counsel for the respondents points out that the portion reading 'wooden planks lying on the roof are mine' is an interpolation and seeks to establish it by two circumstances ; (1) it is written in a slightly out of the way place and is not continuous with what follows and (2) it is out of the context. Mr. Mathur suggests that this must have been added after the parties had returned from the police station because it is thereafter that Prahlad seems to have made up bis mind to demolish the wooden structure. Reference may also be made to Exhibit P. K. which is a report made in the daily diary of police post, Turkman Gate, Delhi, regarding delivery of possession. In the said report it is stated that Prahlad has taken possession of house No. 2547-48. There is again no mention of the wooden structure having been demolished or taken possession of by Prahlad.
6. Two more facts are strongly emphasised by Mr. Mathur. He submits that if the wooden planks lying on the roof really belonged to Prahlad as stated in the note on Exhibit P. W. 8/A (Warrant for possession) then the question of demolishing the wooden structure would not arise. The wooden structure would then belong to Prahlad and he would simply take possession thereof without demolishing it. He then draws our attention to the statement of Hem Raj P. W. 1 wherein he has stated that he did not know who had constructed the khokha and whether Prahlad had constructed it or not. Submits Mr. Matbur that in making this statement Hem Raj completely resiled from his earlier statement made in the Court of the committing Magistrate that the khokha had been constructed by Prahlad. When confronted with the statement before the committing Magistrate, he said he did not remember whether he made such a statement. Then he draws our attention to the first information report where it is stated ''the wooden planks which were fixed by Brij Lal on the roof were also got removed.' The suggestion of Mr. Mathur is that this improvement in the prosecution story is being: made by stages to fit it in with their case before the Court that Khokha was demolished because it did not belong to Prahlad and possession of house 2547 had to be taken.
Mr. Mathur also draws our attention to the evidence of bailiff (P. W. 16) who has categorically stated that there was no khokha on the roof. That however, does not appear to be of any value, since it appears that the witness was trying to appease both parties inasmuch as the position taken by him is that there was no khokha either on the root of house No. 2547 or on the house No. 2548. We will therefore, attach no importance to his testimony. Mr. Mathur then lays considerable stress on what he terms as inherent improbability of the prosecution story and on the tact that admittedly the formalities regarding delivery of possession were completed by 4 p. m. and the report recorded in the police post at 16-20 hrs. The incident on the other hand is alleged to have taken place at about 6.30 to 7 p. m. This gap of two hours fits in only with the defence version. Our atten-tion has been invited by Mr. Mathur to the statement of Member Singh Head Constable (P. W. 18) who was on flying squad duty on that day. He states to have received the information about the fight from the control room at about 6-30 p. m. According to Mr. Mathur, therefore, what seems to have happened is that possession of one room in house No. 2547 delivered to Prahlad and was duly recorded in the police post. Both the respondents went away on their return from the police post. Later at about 6-30 or 7 p. m. they saw their khokha on house No. 2548 being demolished with the aid of labourers. They rushed to the spot and finding that house No. 2547 which alone provided an entrance to house No. 2548 was closed from inside, climbed up with the help of a ladder and were attacked by Prahlad. The respondents therefore counter-attacked in self-defence.
7. Regarding the inherent improbability of the prosecution case,the Learned Counsel submits (a) that it is impossible that the respondents would climb up the roof unarmed where Prahlad, labourers and some others were present to give effect to their threat that they will take Prahlad's life, (b) that if, as is alleged by the prosecution, khokha had been demolished and planks thrown in the street, why would the respondents climb up and say 'we will have these planks reinstalled at the place from where they were removed'. According to Mr. Mathur the only reason can be as suggested by the defence that he was engaged in demolishing the khokha when the respondents reached there and (c) that if the demolition had been completed by 4 p. m., why were the labourers present at the roof at the time of the fight.
8. Mr. Keshav Dayal on the other hand submits that absence of any mention about khokha on the warrant for possession and the notes thareon is due principally to the fact that the khokha was an insignificant dilapidated structure to which no one would direct attention. In any cafe he submits that the fact whether possession of khokha was taken or not is itself very trivial and no one would attach importance to it till it had become a cause for Prahlad's death. He submits that from the evidence of various prosecution witnesses mentioned above it stands established beyond doubt that the structure was there on house No. 2547, it was demolished in the process of delivery of possession and dealh was caused in execution of the respondents' above-mentioned threat.
According to Mr. Keshav Dayal the respondents had no interest in the khokha and their climbing up with the help of a ladder was a sheer act of aggression and they could not, therefore, claim any right to defend their life or property. In any case submits the Learned Counsel, they would be guilty of exceeding the right of self-defence or at least the respondent who indicted the fatal blow would be so guilty. The presence of the labourers is sought to be explained on the ground that they had come for collecting their wages and their non-production on the ground that it is mere omission to produce cumulative testimony, which was not necessary in view of the abundance of other evidence. The Learned Counsel have taken us through the evidence, We are afraid we are unable to agree with the Learned Counsel for the appellant that the prosecution has been able to establish that there was any wooden structure on the roof of the house No. 2547, and that the same was demolished in the process of delivering possession to Prahlad. In this matter we attach importance to the omission in the warrant of possession, the various notes thereon and the report Exhibit P. K. recorded in the daily diary mentioned at Turkman Gate, Delhi, of any mention about the existence or dismantling of the said structure. After all proof of a fact results as probative effect of evidence and we are not at all impressed by the submission at the bar that oral testimony of the various witnesses establishes both the existence and demolition of the khokha. If the structure had been in existence and demolished, it would have been so stated in the notes on the warrant of possession. The receipt written by Prahlad on the said warrant even mentions the planks lying on the roof as belonging to him. If Prahlad was so meticulous as to mention even the planks, we see no reason why he would not mention about the khokha. Even if we accept the suggestion of the appellant that there is no interpolation in the note by Prahlad in Hindi on the said warrant of possession, the omission to mention about 'khokha' does not lose its significance, It is in this context that the statement of Murari Lal P. W. 4 made before the committing Magistrate that khokha was on the adjoining roof assumes importance and goes to lend further support to the defence in their effort to establish the strength or at least the reasonable probability of their version of the incident being true. In this view it becomes difficult to accept the categorical statements by the prosecution witnesses to the effect that khokha existed on the roof and was removed as alleged by the prosecution. Even the site plan (Ext. P. L.) casts a serious doubt about the existence of the wooden structure on the roof of the room of which possession was given to Prahlad.
We are also not unmoved by the suggestion of the Learned Counsel for the respondent about the improbability of the prosecution story why did Prahlad claim the ownership of the wooden planks at the time of writing the note on warrant of possession, and why did he immediately thereafter agree at the police post to hand over the planks to the respondents has been a mystery. We feel that Mr. Mathur is right when he says that if planks had been thrown in the street there was no reason why the respondents should climb the roof with a ladder and insist on the planks being reinstalled and if they had gone to the roof to execute their threat, they would not go completely unarmed. Again there is nothing to explain as to what happened between 4.30 and 6-30 p.m., the period between the return of the party from the police post and the fight. Here again the defence story appears more probable and we have, therefore, no hesitation in rejecting the prosecution case that the respondents went to the roof for refixing the demolished wooden structure. Our conclusion, therefore, is that 'khokha' was not on the roof of house No. 2547 and was not demolished as alleged by the prosecution witnesses. Consequently, the respondents must have climbed the roof to protect their property, which they had the right to do and inflicted injuries in self defence when attacked by Prahlad etc. The nature of injuries on the person of respondents and the situation in which they were placed leads us to the conclusion that the respondents did not exceed the right of private defence. In determining this question of fact one has to consider all the surrounding circumstances.
The respondents went up the roof, unarmed and were suddenly attacked. Injuries were inflicted on them on the forehead and temple. They would, in these circumstances be justified in inflicting the in-juries they did on Prahlad and cannot be said to have exceeded their right of private defence. The circumstances would definitely cause a reasonable apprehension in the mind of the respondents that at least grievous hurt would be the result of assault on them. A person acting under an apprehension cannot be expected to judge too nicely the force of his own blows. A person with an instinct of self-preservation strong upon him may pursue his defence a little further than what may be absolutely necessary judged from the point of view of cool by-stander, but reason-able apprehension has to be judged from the point of view of the person faced with danger. In the circum- stances the respondents did not in our opinion exceed their right of Self-defence. The appeal, therefore, fails and is dismissed.
D.K. Mahajan, J.
9. I agree.