J.D. Jain, J.
(1) The appellant has been convicted of an offence under Section 304 Part Ilindian Penal Code by Additional Sessions Judge New Delhi, vide her -judgment dated 29th May 1978 and vide her order dated 31st May, 1978, he has been sentenced to rigorous imprisonment for two years and a fine of Rs 2,000, in default of payment of fine he has been awarded further rigorous imprisonment for six months. However, in the event of the fine being realised, half of the amount has been directed to be paid to the legal heirs of Nathi, deceased. Feeling aggrieved the appellant has preferred this appeal against his conviction and sentence.
(2) The appellant, Rameshwar, Along with six others, namely, Rati Ram, Fateh Singh, Bhagirath, Chander, Ram Pal and Hem Raj, all residents of village Jharera within the jurisdiction of Police Station Delhi Cantt. were committed to stand trial for offences under Sections 148, 323 & 302 read with Section 149 Indian Penal Code for having caused death of Nathi deceased of the same village and having caused hurt to Ram Sarup, Budh Ram etc. on the evening of 21st April 1974, at the aforesaid village. The prosecution version as unfolded by Ram Sarup, PW2, succinctly is that on the fateful evening at about 8.30 P.M. when he, his deceased brother Nathi and Budh Ram, Public Witness , were sitting at the door-step of Nathi's house, all the above mentioned accused persons armed with lathis came there shouting and declaring that, 'you came back home alive in the morning but we will finish you just now'. Nathi deceased entreated them to refrain from mounting an attack on them i.e. Nathi etc. but in vain. All the accused then started belabouring them with lathis. Rameshwar, appellant inflicted a lathis blow on the head of the deceased, Fateh Singh dealt a blow to Ram Sarup and Bhagirath gave a blow to Budh Ram. The injured too retaliated by giving danda blows inasmuch as they had picked up dandas on hearing the shouts of the accused persons that they would not spare them that evening. A melee ensued between the combatants and injuries were sustained by members of both the parties. However, on receipt of head injury Nathi fell down unconscious. Udami, Rattan Lal and Ami Lal, Public Witness s were also attracted to title spot and witnessed the occurrence. The injured persons including Nathi, whose condition was serious, were removed to Safdarjang Hospital where nil of them were examined by Dr. I.S. Rao, Casualty Medical Officer, on the same evening between 9.00 to 11.00 P.M. Nathi was admitted to Emergency Surgical Ward for further examination and treatment but he succumbed to his injuries at 10.30 A.M. on 22nd April, 1974.
(3) This incident is sought to be explained in the backdrop of another incident which had occurred on that very morning at about 11.00 or 11.15 A.M. in the fields of Nathi, deceased. As deposed by Ratti Ram s/o Nathi, deceased (Public Witness ! 5), he along-with his brother Shis Ram and his nephew Raj Pal (son of another brother of his) were present in their field at about 10/11 A.M. on that morning. Fateh Singh and Bhagirath accused Along with Raj Paul, brother of Fateh and Bishambhar, a cousin of Fateh, however, let their cow into the field. When Ratti Ram and others tried to drive out the cow from the field as wheat sheaves were lying thereafter harvesting, all the above named four persons came there armed with lathis and they inflicted lathi blows on all three of them i.e. Ratti Ram, Shis Ram and Raj Paul and all of them sustained injuries. Someone informed the police and the flying squad van arrived there. So, they were removed to Safdarjang Hospital by the flying squad and were admitted to the hospital. However, Ratti Ram was discharged from the hospital at about 6.30 P.M. after his wound had been dressed and his broken arm had been put under plaster. This provides clue to the shouts of the accused persons viz. that, 'you came back home alive in the morning but we will finish you just now'.
(4) The prosecution version outlined above has been duly corroborated by Budh Ram, Public Witness 3, in all essential details. S/Shri Udmi Ram Public Witness 9, Rattan Lal, Public Witness 10 and Ami Lal, PW11 have also lent support to the prosecution case that Nathi, Ram Sarup and Budh Ram received injuries at the hands of Rameshwar and his confederates who had come to the house of Nathi, deceased with the obvious design of belabouring them. The accused persons have come out with a parallel version raising the plea of self-defense. According to them it was Nathi and his companions who opened the attack on them with a view to wreak vengeance for the morning incident. their case precisely is that on the aforesaid date and time Ratti Ram was sitting outside his baithak Along with Ram Chander and Hem Raj, accused. They were smoking hukka when Nathi, deceased, accompanied by Ram Sarup, Budh Ram, Shera, Tota, Ratti Ram s/o Nathi and Jaswanta s/o Ram Sarup came there armed with lathis and declared that, 'since you gave beating to our men in the morning we have come to take revenge and kill you'. Ratti Ram entreated Ram Sarup and others to give up their aggressive design and not indulge in marpeet. However, all of them started beating them i.e. accused persons and dealt lathi blows. Ram Sarup gave a lathi blow on the head of Ratti Ram. Rameshwar reached there in the meantime, Tota Ram hit him with a lathi which landed on his left arm and fractured it. Even Brahmwati, dauther of Fateh Singh accused, who was present outside her house at that time was hit by Jaswanta with a lathi. Thereupon, the accused persons too picked up lathis and wielded the same on self-defense. This led to a melee in which combatants of both sides wielded lathis and members of both the groups sustained injuries. Ram Pal, one of the accused persons immediately rushed to the Police Station on seeing this and in formed the police about the quarrel. Later a case was registered under Section 307 Indian Penal Code on the basis of report lodged by Hem Raj, accused.
(5) The accused persons led defense and, inter alia, examined Hem Raj, accused and Ram Pal, accused, as their own witnesses under Section 315 Code of Criminal Procedure. Smt. Brahmwati daughter of Fateh Singh, accused, also stepped into the witness-box to land support to the defense version.
(6) Dr. I.S. Rao, then Casualty Medical Officer, Safdarjang Hospital, has stated above had examined all the injured persons in this case. He has testified to the injuries sustained by various persons, as summarised below :
1.Nathi : Examined at 9.10 P.M. He was unconscious and was not responding to stimuli. He had sustained the following injuries :
1.CLW 1/8 x 1/4' with depressed fracture frontal bone.
2.CLW 1' x 1' over he occipital region.
3.Haematoma of both the eye lids.
4.Abrasion over right heel.
X-ray report revealed fractures of frontal and parietal bones. Injuries were caused by a blunt object and were dangerous in nature.
2.Ram Sarup : Examined at 23.25 hours. He had sustained the following injuries :
1.Abrasion over the left ankle.
2.CLW Oblique Measuring 11/2' x 1/8' tissue deep over the left frontal region 21/2' above the middle of the left eye brow.
Injuries were caused by a blunt object and were simple in nature.
3.Budh Ram : Examined at about 23.25 hours. The Following injuries were found on his person :
1.CLW cover the mid scalp measuring 11/2' x 1/8' skin deep.
2.Abrasion on the left leg.
3.Contusion measuring 1/2' x 1/2 over the right parietal region.
Injuries were caused by a blunt object and were simple in nature.
During his cross-examination the witness deposed to the injuries found on the persons of various accused :
1.Hem Raj : Examined at 10.10 P.M. The following injuries were found on his person :
1.Vertical Clw 4' x 1/2' tissue deep over the right parietal region.
2.Abrasion just below the left knee.
X-ray examination of skull and lower end of left femur was done but no bony injury was revealed. Injuries were caused by a blunt weapon and were simple in nature.
2.Raiti Ram : Examined at 23.30 hours. The following injuries were found on the person :
1.CLW 2'x 1' tissue deep over right parietal region.
2.Contusion 3' x 1' over the lower l/3rd of the left thigh.
3.Haematoma measuring 1'x 1' just about left knee joint.
X-ray examination of the skull and the left femur was done but it did not reveal any bony injury. Injuries were caused by blunt weapon and were simple in nature.
3.Rameshwar : Examined at 00.30 (mid-night). The fol- (accused) lowing injuries were found on his person :
1.Contusion 4'x3' on the left elbow. X-ray examination revealed fracture of olecranon process of ulna. The injury was caused by a blunt object and is grievous in nature.
4.Chander Singh : Examined at O.100 hours. The following (accused) injuries were found on his person :
1.CLW l'x 1/8' skin deep over the left frontal region just above the upper part of forehead.
2.Abrasions over left leg.
X-ray examination of skull was talien but it did not reveal any bony injury. The injuries were caused by a blunt object and were simple in nature.
5.Brahmwati : Examined at 00.45 hour (mid-night). The following injuries were found on her person :
1.A horizontal Clw 11/2'x 1/4' tissue deep over the frontal region I' above middle of upper part of the forehead. X-ray examination of the skull was done but it did not reveal any bony injury. The injury was caused by a blunt weapon and was simple in nature.
(7) Dr. Jagdish Chandra, Professor and Head of the Department of Forensic Medicine (Public Witness 1) conducted autopsy on the dead body of Nathi on 23rd April, 1974. He found seven injuries on the body of the deceased of which injuries 1,2 & 7 are most material. They are as follows :
1.Contusion around both eyes upper lids. right side 5 cms x 2.5 cms and left side 5.3 cms x 2.2 cms.
2.Lacerated wound O.5 cms x O.1 cm x O.2 cms. left side forehead with depressed fracture frontal bone.
3.Lacerated wound right side head back occipital back 3 cms x 2 cms x bone-deep.
4.Abrasion back heel 1 cm x O.5 cm. right side.
5.Abrasion outer side left ankle 4.5 cms x 1 cm and on the heel outer side 1 cm x O.5 cms.
6.Operation wound for deep left ankle inner side O.5 cms x O.1 cms x O.1 cms.
7.Contusion running anteroposteriorly in the middle of head front part on left side 13.5 cms. x 4.5 cms frontal parietal region with fracture underneath.
(8) Internal examination revealed multiple fracture (six pieces) of frontal and both parietal bones. There was also fracture of the base of skull in anterior part in orbital plates. Injury No. 7, according to the autopsy Surgeon, was sufficient in the ordinary course of nature to cause death. It was produced by a weapon like lathi. During his cross-examination, he explained that contusion around both eyes was as a sequel to injury' No. 7 with fractuee of skull as well as injury No. 2. He asserted that injury No. 7 was result of only one lathi blow and it would not have been caused by a brick.
(9) A short reference to evidence of investigation agency is also called for. Sub-Inspector Atma Ram (Public Witness 16) is the main Investigating Officer in this case. He reached the place of occurrence at about 10.30 P.M. while patrolling the area in a jeep and Assistant Sub-Inspector Roop Chand (Public Witness 19) was already present there with one Constable. Some of the injured persons had already been removed to Safdarjang Hospital. However, Fateh Singh, accused, Ratti Ram, accised and Brahmwati were present there in injured condition. Similarly, Ram Sarup and Budh Ram, Public Witness s, were also present at that time and were in injured condition. He took all of them to Safdarjang Hospital and recorded statement Ex. Pb of Ram Sarup on the basis of which a formal F.I.R. was recorded. He, inter alia, prepared the site plan Ex. Pk and recorded his marginal notes in his own hand. According to this witness, the place of fight shown at point 'P' in the site plan Ex. Pk was a public place and it was comparatively nearer to Ratti Ram's jhugi as compared to the jhugi of Nathi. Assistant Sub-Inspector Roop Chand was the first Police Officer to arrive at the spot. He deposed that at about 8.00/ 8. 15 P.M. on the date of occurrence, Ram Pal, accused came to the Police Station and reported that fighting was going on in village Jharera. So he accompanied him to the place where the fighting was going on. Shortly thereafter, Sub-Inspector Atma Ram also arrived there in the jeep and took over the investigation of the case. This witness could not pin-point the exact place of occurrence. However, he admitted during cross-examination that Ratti Ram , accused Hem Raj and Brahmwati were found in injured condition in the baithak of Ratti Ram when he arrived there.
(10) Ratti Ram died during the pendency of the trial. The rest of the accused barring of course the appellant were acquitted by the learned Additional Sessions Judge who came to the conclusion that Nathi, deceased and his companions were in all probability the aggressors and had gone to the house of Ratti Ram, accused, for wreaking vengeance upon the accused persons for the morning incident in which his two sons and nephew had suffered injuries at the hands of Fateh Singh and Bhagirath, accused, etc. While observing that the investigating agency in this case had not discharged their duty faithfully and had not tried to disentangle the mass of evidence in the light of tell-tale features which was available immediately after the occurrence to steer clear of the rival contentions, she has listed various reasons for coming to the conclusion about the deceased and his partymen being aggressors. In the first instance, she has pointed out that in the perspective of morning episode in which two sons and one grandson of Nathi, deceased had sustained injuries and two of them were admitted to the hospital whereas the third was discharged on that evening even though he too had a fracture injury, the accused persons would have been on the defensive rather being so foolhardy as to again come outseven in number armed with lathis and open assault on Nathi and his brother etc. while they were sitting at their house. Thus, from all appearances, the defense version appeared to be nearer truth and inspired confidence, more so when there was no history of previous enmity between the parties and there was no reason for the accused persons to be after the blood ofcomplainant party. Secondly, she has pointed out that it was Ram Pal, accused, who had gone first of all to the Police Station to make a report about the scuffle and that too when the fight was still on. Thirdly, she has noticed that the place where the fight took place was comparatively nearer to the house of Ratti Ram than that of the deceased Nathi. Fourthly, and to my mind very rightly, she has pointed out that young daughter of one of the accused persons, namely Brahniwati was also injured during the scuffle- Apparently, she would not have accompanied the accused persons to the house of Nathi, deceased, if they had formed an unlawful assembly by arming themselves with lathis with the object of thrashing Nathi, deceased and his family members. Evidently, this lends colour of truthfulness to defense version. .Lastly, she has pointed out that according to the Investigating Officer and the site plan prepaid by him the place of occurrence was not the door-step of the house of Nathi, deceased, as claimed by various prosecution witnesses, rather it was quite away from there. Thus, she came to the conclusion that the accused persons picked up lathis and retaliated by dealing blows therewith in exercise of their right of self-defense when faced with onslaught by Nathi, deceased and his men, who must have gone to Ratti Ram's house to teach them a lesson. However, she has further found that Rameshwar, appellant, exceeded his right of self-defense inasmuch as he inflicted a lathi blow on the head of Nathi, deceased, with so great a force that it caused fracture of the whole of his skull including its base extending up tos tern of the brain. She has further noticed that Rameshwar, accused, was a young person with stout and healthy built whereas Nathi, deceased, was an old person with frail body as would appear from post-mortem examination report. Hence, she has observed that the blow given with determined force by the appellant on the old man with frail-built, could not at all be condoned and he had certainly exceeded the right of self-defense which had accrued to him as a member of the assaulted party. So, treating it as his individual act, she has convicted him of culpable homicide not amounting to murder punishable under Part 11 of Section 304 Indian Penal Code.
(11) The submission made by the learned counsel for the appellant concisely is that having gone so far and having accepted the defense version as worthy of credence, the learned additional Sessions Judge slipped into the grave error of over-rating the, role attributed to Rameshwar. appellant, in the fight which ensued between the parties consequent upon aggression mounted by Nathi, deceased and his companions, who were armed with lathis, on the accused persons. He has canvassed with considerable fervour that as many as five persons on the side of the accused received injuries at the hands of Nathi and his companions. While fore-arm of Rameshwar was fractured, Brahmwati, Hem Raj, Ratti Ram, deceased and Chander Singh had sustained head injuries with suspected fracture of skull. Thus, by no stretch of reasoning, it can be said that the accused party including Rameshwar could not have reasonable apprehension of grievous hurt at the hands of the deceased and his men and as such they were facing imminent peril to their lives. He has stressed with all the emphasis at his command that a person acting under an apprehension which is imminent and real cannot be expected to judge too nicely the force of his own blows with an instinct of self-preservation strong upon him and he may pursue self-defense a little further than what may be absolutely necessary judged from the point of view of a cool by slander. Hence, reasonable apprehension has to be judged from the point of view of the person faced with danger having regard to the situation in which he was placed. Further she has pointed out that the vital blow to the deceased was attributed to Rameshwar by the ocular witnesses during their depositions at the trial for the first time and they did not assign any specific role or attribute any particular injury to Rameshwar in their respective police statements. Thus, they have made improvements and embellishments designedly so as to fix the appellant with the offence of murder.
(12) I have bestowed careful thought and consideration to the submissions made by the learned counsel for the appellant and have carefully perused the evidence on the record. Section 100 Indian Penal Code lays down the conditions under which right of private defense of the body extends to causing death subject, of course, to the restrictions contained in the preceding Sectionviz. Section 99. It, inter alia, provides that the right of private defense of the body extends to the voluntary causing of death if the offence which occasions the exercise of the right be an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. On a Plain reading, clauses (1) and (2) of the said Section apply if the assault is one which reasonably causes the apprehension of death or grievous hurt. They do not require as a condition precedent that grievous hurt must be actually caused by the assailant, the test being not whether there was any actual danger or causing of grievous hurt but whether there was reasonable apprehension that the danger existed. Further, Section 102 Indian Penal Code defines as to when the right of private defense of body commences and how long it continues. The right commences as soon as the reasonable apprehension of danger to the body arises and it continues as long as such apprehension continues. However, the threat must reasonably give rise to the present and imminent and not remote or distant danger. Thus, the apprehension of danger to the body and not the actual injury received is the criterion injudging whether the act of the accused is justified. Reference in this context may be made to Deo Narain v. State of U.P. : 1973CriLJ677 , wherin it was held:
'TOsay that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defense is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right.'
Their lordships further observed:
'Ablow by a lathi on the head may prove instantaneously fatal and cases are not unknown in which such a blow by a lathi has actually proved instantaneously fatal. If, thereforee, a blow with a lathi is aimed at a vulnerable part like the head we do not think it can be laid down as a sound proposition of law that in such cases the victim in using his spear in defending himself. In such moments of excitement or disturbed mental equilibrium it is somewhat difficult to expect parties facing grave aggression to coolly weigh, as if in golden scales, and calmly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful aggression.'
(13) So, once we proceed on the hypothesis that it was Nathi, deceased and his partymen, who had gone to the house of Ratti Ram duly armed with lathis to avenge the morning incident and they opened attack on Ratti Ram etc., there is virtually no escape from the conclusion that the accused persons genuinely entertained apprehension to their lives, more so when some of them were hit on the head by the assailants, (It may be pertinent to add here that the State has not come up in appeal against acquittal of the co-accused of the appellant and as such the finding of the trial, court regarding the deceased and his party being aggressors may well be deemed to be conclusive.) So, in dealing with the question as to whether more force was used than was necessary or than was justified by the prevailing circumstances, it would be improper to adopt tests of detached objectivity. Naturally at that time, the uppermost feeling in the mind of the appellant and his companions would have been to ward off the danger and save themselves. It is, thereforee, no wonder that he chose to strike a decisive blow. Certainly, he was not expected to modulate his defense step by step in wishful thinking that danger would pass off soon. At any rate, where two views of a situation can be taken, the one favorable to the accused has to be preferred. It is well settled that not only, is the accused entitled to benefit of every reasonable doubt but if he offers a reasonable Explanationn of his conduct, the same should ordinarily be accepted even though he has not been able to prove his assertions to the hilt. Hence, having regard to the totality of circumstances, it would be treading a very treacherous and slippery ground to conclude that the appellant exceeded his right of self-defense, assuming of course that the fatal blow on the head of the deceased was administered by him, although that fact itself is not free from doubt keeping in view the earliest version of the incident as spelt out by Ram Sarup and other Public Witness s during the course of investigation .
(14) To sum up, thereforee, the conviction as well as sentence of the appellant for the aforesaid offence cannot be sustained. Hence, I accept this appeal, set aside the conviction as well as sentence of the appellant and acquit him.