1. The prosecution story, In brief, is that on October 12, 1967, at about 8 P. M., when the two brothers Hamendra Singh and Bayant Singh. sons of Jodh Singh, were taking their meals in their house in village 12 F. F., they heard the shouting of the three persons Guljara Singh, Singhara Singh, sons of Kishan Singh, and Mit Singh son of Sohan Singh as also that of Darbara Singh (deceased), son of Kishan Singh. Both Hamendra Singh and Bayant Singh came out of their house and saw the above named persons on the culvert at a distance of about 5 'Paundas'. Guljara Singh and his party men challenged Harnendra Singh and Bayant Singh and asked them to proceed forward. Thereupon Bayant Singh hurled abuses at them. Darbara Singh, Mit Singh and Singhara Singh were empty handed. The accused Guljara Singh was armed with a 12 bore gun. Guljara Singh fired his gun at Bayant Singh hitting him on his hand. He again fired his gun hitting Bayant Singh at his left flank, as a result of which he fell down. Harnendra Singh, Jeet Singh, Sukhvender Singh and Bachan Singh took Bayant Singh inside their house. Later on, he was taken to the railway station, Jorawar-Singhpura, in a bullock cart. He was then taken to Karanpur by train to get medical aid. The Doctor, incharge of the Government Dispensary, Karanpur, was not available. He was, therefore, taken to a private practitioner Sardar Apar Singh, who is now dead. Harender Singh then went to the police station, Karanpur and lodged first information report Ex. P-l. The police registered a case and started investigation. The Sub-Divisional Magistrate, Karanpur, was approached by the police to record dying declaration of Bayant Singh, Bayant Singh, however, refused to make any statement. Dr. Apar Singh advised Harnendra Singh and others to take Bayant Singh to Ganganagar Hospital. When he was being taken in a jeep car, he breathed his last on the way near the village Sahib Singhwala. The dead body of Bayant Singh was brought to Karanpur. The Medical Officer, Incharge Karanpur Dispensary, was out of station. Dr. C. S, Bhati, Medical Officer, Padampur, was requested to conduct the post-mortem examination of the dead body of Bayant Singh.
As a result of the autopsy the following injuries were noticed by the Doctor:--
1. Lacerated wound 1/2' x 2' on the palmer surface of left thener emminence. No blackening, or scorching or tatooing was present.
2. Gun shot wound of entry with irregular lacerated inverted edges l1/2' x 1' chest cavity deep on the fifth left intercostal space middle vicular line. No blackening or scorching was present.
3. Gun shot wound of exit 1/3' x 1/4' on the back of the chest left side on the lateral side of the lateral border of left scapula lower edges of the wound were inverted and lacerated. No blackening or scorching or tatooing was present.
The gun shot wound of entry l1/2' x l'x chest cavity deep with a lacerated inverted irregular edges in the fifth intercostal space mid clavicula line communicated with the exit wound 1/3' x 1/4' on the back of the chest on the lateral side of the lower part of the left scapula. The gun shots transversed through the pleural cavity and pericardial cavity, injuring the apex of the heart. Inferior surface and lower part of the left lung was coming out through the pleural cavity into the sub-cutaneous tissue. Seven shots were found lodged in an area of 3' x 4' around the exit wound on the left side of the back of the chest. The pericardial and pleural cavity were full of dark blood. Left half of the heart also contained some blood. Right half of the heart also contained some blood. A cork was removed from the chest wound and the seven shots from the back of the chest. Fifth and sixth ribs were fractured in the posterior part. In larynx trachea and right lung nothing abnormal was detected. Liver, spleen and kidney were pale. Bladder was empty. Stomach and small intestines contained food material in the process of digestion.
In the opinion of the Doctor the cause of death was shock and haemorrhage as a result of the gun shot wound on the chest. The injuries were antemortem and were sufficient in the ordinary course of nature to cause death. Injuries Nos. 2 and 3 were ' caused by gun fire. The Doctor is not very sure about the nature of injury No. 1 on the palmer surface. Probably it was caused by gun fire. The Station House Officer, Karanpur, prepared a site plan, and inquest report. In the meantime a cross-case was registered against Jeet Singh, Balbir Singh, Sukhvendra Singh and Gurmej Singh for murdering Darbara Singh, brother of the accused Guljara Singh and Singhara Singh. The accused Guljara Singh, Mit Singh and Singhara Singh were arrested on October 15, 1967. After the investigation was concluded, Singhara Singh, Mit Singh and Guljara Singh were challaned by the police in the Court of Sub-Divisional Magistrate, Karanpur. The committing Court conducted proceedings in accordance with the provisions of Section 207-A, Criminal P. C., and committed the accused to the Court of the Sessions Judge, Ganganagar. Guljara Singh was to be tried under Section 302, I. P. C. Singhara Singh and Mit Singh were to stand trial under Section 302/34, I. P. C.
The trial Court charged the accused Guljara Singh under Section 302, I. P. C. and Singhara Singh and Mit Singh under Section 302, read with Section 114, Indian Penal Code, to which they pleaded not guilty. In support of its case the prosecution examined 8 witnesses. In his statement recorded under Section 342, Criminal P. C., Guljara Singh denied to have fired at Bayant Singh and pleaded alibi. Singhara Singh and Mit Singh stated that on the day of the occurrence at about 7-45 P. M., when Singhara Singh and his brother Pyara Singh were inside their house and their brother Darbara Singh had gone out, they heard Balbir Singh uttering insulting or coarse language. Pyara Singh went out of the house and after a minute or two Singhara Singh also came out. They saw Darbara Singh and Pyara Singh standing near the 'Kharas' (grinding machine) and Jeet Singh and Balbir Singh standing in front of the house of Harnendra Singh. Balbir Singh was armed with a double barrel gun and his brother Jeet Singh was having a 'Kirpan'. Harnendra Singh and Sukhvendra Singh also came there. Sukhvendra Singh had a double barrel gun and a bag of cartridges. Sukhvendra Singh challenged the accused party. But Mit Singh and Charan Singh took him under a 'Bod' tree near Jeet Singh and Balbir Singh. Singhara Singh, Pyara Singh and Darbara Singb then started towards their houses. In the meantime Gurmej Singh came and inflicted a blow to Singhara Singh with the blunt side of 'Takua'. Pyara Singh caught hold of Gurmej Singh's tuft of hair and Singhara Singh snatched 'Takua' from Gunnel Singh and inflicted 2 or 3 blows to him therewith.
Darbara Singh went towards the culvert and told Harnendra Singh that the opposite party was doing injustice to him. Jeet Singh then asked Balbir Singh to shoot at Darbara Singh. Balbir Singh made two fires simultaneously hitting Darbara Singh. Soon after Jeet Singh delivered a 'Kirpan' blow to Darbara Singh's head, culminating in his death on the spot. Bayant Singh, who was a friend of Darbara Singh, approached him and so did Pyara Singh. Jeet Singh then shouted that Pyara Singh, the elder member of the family, should be done to death. Thereupon Balbir Singh fired towards Pyara Singh. Pyara Singh, however, jumped into a nearby pit and the two shots hit Bayant Singh. Harnendra Singh, Jaswant Singh and Kundan Singh carried Bayant Singh to his house. When Balbir Singh, Jeet Singh and Sukhvendra Singh commenced carrying the dead body of Darbara Singh towards Harnendra Singh's house, the latter told them, as to why they were bringing Darbara Singh there.
The dead body of Darbara Singh was, therefore, left by them near the culvert. Later on, it was carried fay Pyara Singh and others to their house. In their defence the accused examined D. W. 1 Charan Singh. The trial Court, by its judgment, dated February 25, 1969, convicted the accused Guljara Singh under Section 302, I. P. C., and sentenced him to imprisonment for life. The accused Mit Singh and Singhara Singh were acquitted of the offence, with which they were charged. Aggrieved by the above verdict, Guljara Singh has filed this appeal.
2. Contention of learned counsel for the appellant is two-fold. His first grievance is that the prosecution has failed to prove that Guljara Singh shot Bayant Singh dead. His another argument is that even if it is proved that Guljara Singh fired his gun at Bayant Singh, he did so in the exercise of the right of private defence of his person. Learned counsel for the State vehemently supported the judgment of the Court below.
3. We may now take up the first point. The prosecution in support of its case examined 4 witnesses, namelv, P. W. 1 Harnendra Singh, son of Jodh Singh, and brother of the deceased Bayant Singh; P. W. 2 Gurmej Singh, son of Badhva Singh; P. W. 3 Sukhvendra Singh, son of Gurmei Singh, and P. W. 6 Jeet Singh, son of Thakur Singh. P. W. 1 Harnendra Singh, who lodged the first information report Ex. P-l, with the police station Karanpur, on October 12, 1967, at 10-15 P. M. states that he and his brother Bayant Singh were taking their meals. They at that time heard shouts and abuses of Singhara Singh, Barbara Sinfih, Guljara Sinfih and Mit Sinfih. Thereafter both he and his brother came out of their house. Guljara Singh had a gun and the other three persons, namely, Singhara Singh, Mit Singh and Barbara Singh, were empty-handed. In, the meantime Sukhvendra Singh, Jeet Singh and Gurbachan Singh also arrived there. Bayant Sinfih abused the accused persons in return. Guljara Singh then fired at Bayant Singh, hitting his left thumb. He fired again on his rib.
Bayant Sinfih, having received a serious injury, fell down. The witness further states that the Sub-Divisional Magistrate, Karanpur, wanted to record dying declaration of Bayant Singh, but he refused to make any such statement, although he was in his senses and was talking to the people then. The witness further says that he did not see anyone inflicting injury to Gurmej Singh and that none of the accused persons asked Guljara Singh to fire. In the police statement Ex. P-6, at portion marked A to B, the witness had said that both Singhara Singh and Mit Singh had asked Guljara Singh not to run away and to hand over his gun to them or he himself should fire it. Thereupon Guljara Singh came forward and fired his gun, hitting Bayant Singh. No explanation is forthcoming in regard to this important and pertinent discrepancy. On the other hand, the witness has deposed before the trial Court that Barbara Singh, Singhara Singh and Mit Singh did not utter a word on the spot.
Curiously enough the witness has also stated that Gurbachan Singh, Sukhvendra Singh, Bayant Singh and he himself were empty-handed. He is uncommunicative as to how Barbara Singh sustained injuries, causing his death on the spot. He, however, admits that Barbara Singh did receive gun fire injuries. The witness further admits that there was none else besides the above-named persons on the scene of the crime. The witness also says that Balbir Singh was not on the spot, nor did he fire his gun at Barbara Singh and that Barbara Singh and Balbir Singh were friends and that it was wrong to suggest that Balbir Singh had fired his gun at Bayant Singh.
According to the Doctor C. S. Bhati, Medical Officer, Government Dispensary, Padampur, who conducted the postmortem examination of Barbara Singh's dead body on October 13, 1967, at 10 a.m. Barbara Singh received 6 gun shot injuries and one incised wound on the head. The Boctor is of the opinion that Darbara Singh must have died instantaneously and probable time of the death was within 24 hours of his conducting the post-mortem examination. In his opinion. Barbara Singh died of shock and hemorrhage as a result of the gun shot injuries and that those injuries were in the ordinary course of nature sufficient to cause his death. The injuries were antemortem.
It is also in the evidence of Br. Bhati that Singhara Singh received the following 3 injuries:--
1. Lacerated wound 6' x 3' x 1' on the right eye brow just above the lateral part.
2. Abrasion 11/4' x 1/6' on the left side of back medial to the scapula.
3. Abrasion 11/4' x 1/8' on the right side of back lumber region.
These injuries were simple and were caused by a blunt object. Their duration was 48 hours. His medical examination took place on October 14, 1967. The witness Harnendra Singh is reticent not only in regard to the death of Barbara Singh, but also about the injuries of Singhara Singh. The trial Court wholly ignored the significance of the injuries on the persons of Barbara Singh and Singhara Singh. The injuries sustained by the two victims at the time of the occurrence are highly probabilised. The prosecution witness had a duty to explain these injuries, but he fails to do so.
Under the circumstances, we are unable to agree with the trial Court that the testimony of Hamendra Singh is trustworthy. In our judgment, silence on the part of the witness Hamendra Singh in regard to the various injuries found on the bodies of the above-named two persons shows that his evidence relating to the incident is not true or, at any rate, not wholly true. The trial Court did not take into consideration this salient feature of the case. We are thus satisfied that the Court below erred in relying upon, the testimony of Hamendra Singh on the sole ground that the version put forward by him is supported by the first information report. In this connection we may refer to a decision of their Lordships of the Supreme Court, in Mohar Rai v. State of Bihar, AIR 1968 SC 1281. In that case His Lordship Hegde J., speaking for the Court, observed:
'The evidence of Br. Bishun Prasad Sinha (P. W. 18) clearly shows that those injuries could not have been self-inflicted and further, according to him if was most unlikely that they would have been caused at the instance of the appellants themselves. Under these circumstances, we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries. In our judgment, the failure of the prosecution to offer any explanation in that regard shows that the evidence of the prosecution witnesses relating to the incident is not true or, at any rate, not wholly true. Further those injuries probabilised the plea taken by the appellants.'
4. The maxim 'falsus in uno falsus in omnibus' (false in one thing false in everything) is neither a sound rule of law, nor a rule of practice. In other words, where one part of a witness's evidence is disbelieved, Judges of fact have the right to act on the rest of his testimony: see Sukha v. State of Rajasthan, AIR 1956 SC 513. It is, therefore, the duty of the Court to scrutinise the evidence carefully and separate the grain from the chaff. But, as has been observed in Ugar Ahir v. State of Bihar, AIR 1965 SC 277, the Court cannot obviously disbelieve the substratum of the prosecution case or the material part of the evidence and reconstruct a story of its own out of the rest. The fact that Barbara Singh sustained certain injuries on the scene of the crime has got very Important bearing in this case. The witness Hamendra Singh, as has been observed above, keeps mum in regard to this very conspicuous aspect of the matter. If the evidence of this witness is disbelieved on this very important aspect of the case, what else remains? The trial Court could not have removed the grain and accepted the chaff, and convicted the appellant solely on the basis of the testimony of Hamendra Singh, P. W. 1.
5. We now pass on to the testimony given by Gurmej Singh, P. W. 2. Contrary to the statement of Hamendra Singh, brother of the deceased Bayant Singh, Gurmej Singh says that Guljara Singh had a 12 bore gun, Mit Singh had a lathi, Singhara Singh had a 'Barchi' and Barbara Singh had a sword. The witness also says that Singhara Singh and Barbara Singh caught hold of the tuft of his hair and Singhara Singh gave blows to him with the blunt side of his 'Barchi'. This is not corroborated by Harnendra Singh, P. W. 1, nor by any medical evidence. The witness then says that Guljara Singh came forward on the culvert and fired at Bayant Singh, which hit him on his left hand. Then Bayant Singh fired which hit Barbara Singh. Bayant Singh fired two shots simultaneously. Guljara Singh then ran away towards his house. Singhara Singh and Mit Singh reprimanded Guljara Singh and told him either to shoot or to hand over his gun to them. Before these persons asked Guljara Singh to transfer his gun, Barbara Singh moved forward, whereupon Bayant Singh, fired on him twice and hit him, as a result of which he fell down. Guljara Singh, after hearing from Singhara Singh and Mit Singh, also fired at Bayant Singh hitting him on the chest. This story related by Gurmej Singh is not in conformity with the prosecution case as unfolded in the first information report. It is nowhere mentioned in Ex. P-l that Gurmej Singh's bunch of hair was caught by Singhara Singh and Barbara Singh and that Singhara Singh inflicted blows to him. It is also not the prosecution case that Bayant Singh fired his gun at Barbara Singh or that Singhara Singh and Mit Singh told Guljara Singh either to shoot or to transfer his gun to them or that Barbara Singh moved forward and then Bayant Singh fired at him.
That apart, the witness Gurmej Singh says that Bayant Singh had a 12 bore pistol with him. This is contradicted by the witness P. W. 1 Harnendra Singh, who says that he was unarmed. The fact that Singhara Singh inflicted 4 or 5 blows to the witness Gurmej Singh is not corroborated by any medical evidence. The fact that Guljara Singh fired the round on Bayant Singh from a distance of 5 paces is not supported by the medical evidence. The witness Gurmej Singh testifies that he did not notice any injury on the person of Singhara Singh. This aspect of the matter is falsified by the medical evidence.
The witness admits in his cross-examination that he saw Bayant Sinsh firing twice at Barbara Singh. This fact is belied by P. W. 2 Harnendra Singh and the first information report submitted by him. Curiously enough the witness left his home soon after the occurrence and went away towards the Punjab. He did not relate this incident to anyone for more than a month i. e., upto November 15, 1967. This conduct is unnatural and inexplicable, for we cannot see what he had to fear: vide Bihari Singh v. State of Bihar, AIR 1954 SC 692. In his police statement Ex. B-l at portion marked A to B he had said that Guljara Singh's gun fire might have hit Bayant Singh. That shows that he was not certain whether Bayant Singh had been actually hit by Guljara Singh. The witness says that Bayant Singh had made 2 fires which hit Barbara Singh and at the same breath he suggests that Bayant Singh and Barbara Singh were not on inimical terms with each other. For all these reasons, the trial Court was justified in not placing any reliance upon the testimony of this witness.
There is another important factor that merits consideration. The witness admits that a cross case in respect of the murder of Barbara Singh was pending against him as also against Jeet Singh, Sukhvendra Singh and Balbir Singh. In that contest the possibility of suppressing truth and falsely implicating the accused persons cannot be ruled out just to save ids own skin.
6. P. W. 3 Sukhvendra Singh, son of Gurmej Singh, substantially repeats the version of his father. The witness did not raise any alarm in the course of the whole event even after seeing his father being beaten. This appears to us to be unnatural. The witness then says that Bayant Singh had a pistol and cartridges. The obvious object of making such a statement is to shift the responsibility of committing the murder of Darbara Singh on the deceased Bayant Singh. Hamendra Singh, P. W. 1. says that Bayant Singh was empty-handed. Had Bayant Singh been equipped with a pistol and cartridges, as related by the witness, these articles could have well been recovered. The witness also states that he did not relate this incident to anyone before October 15, 1967. It is difficult, if not impossible, to believe that if really such an important happening was noticed by him, he would not talk about it to any other person for long.
In the police statement Ex. D-2 the witness did not say that Bayant Singh fired twice at Guljara Singh and that Darbara Singh had been hit thereby. The Witness does not furnish any explanation as to why such an important allegation stood omitted in the first' information report. The statement made in the trial Court by this witness is really inconsistent with the earlier statement made before the police and it is therefore, a contradiction within the meaning of Section 162, Criminal P. C. We therefore, cannot place reliance on the evidence of this witness. It is an obvious development to the prejudice of the accused: vide Dahyabhai v. State of Gujarat, AIR 1964 SC 1563. Like P. W. 2 Gurmej Singh the witness Sukhvendra Singh is also involved in a cross case of murder of Darbara Singh. For all these reasons, the trial Court rejected the testimony of this witness and in our opinion rightly so.
7. P. W. 6 Jeet Singh in his examination-in- chief corroborates the testimony of Gurmej Singh. The witness says that Mit Singh gave lathi blows to Gurmej Singh and that Singhara Singh dealt blows to him with the blunt side of his 'Barchi'. This is not supported by any medical evidence. He says that Bayant Singh had a 12 bore gun. This is negatived by P. W. 1 Hamendra Singh. He further deposes that Bayant Singh fired at Guljara Singh, which hit Darbara Singh. Bayant Singh reloaded his pistol and again fired at Darbara Singh and shot him dead. This is controverted by P. W. 1 Hamendra Singh, who says that Darbara Singh and Bayant Singh were on friendly terms and that there was no basis for Bayant Singh firing at Darbara Singh. He stated in his police statement Ex. D-3 that 3 fires were resorted to by Bayant Singh. But before the trial Court he deposed that four fires were made by him. The witness does not explain where Bayant Singh's pistol had gone after his death. The witness savs that he did not see any injury on the person of Singhara Singh or on Darbara Singh's hand. These facts are belied by the medical evidence. The witness is also involved in a cross case of murder of Darbara Singh. There is no wonder that with a view to make a frenzied effort to absolve himself from criminal liability he suppressed the truth and put forward narration inconsistent with the prosecution version. The trial Court, therefore, was perfectly justified in rejecting his testimony.
In this connection, a reference is made to Valarshak v. Standard Coal Co., AIR 1943 PC 159. The relevant passage occurring in the head-note (a) of the judgment is quoted below:
'The appellate Court should not ordinarily interfere with the trial Court's opinion as to the credibility of a witness as the trial Judge alone knows the demeanour of the witness; he alone can appreciate the manner in Which the questions are answered, whether with honest candour or with doubtful plausibility, and whether after careful thought, or, with reckless glibness; and he alone can form a reliable opinion as to whether the witness had emerged with credit from a cross-examination.'
In our opinion, the trial Judge, who had the opportunity of judging the recollection and truthfulness of the witnesses, was right in rejecting the evidence of Gurmej Singh, P. W. 2, Sukhvendra Singh P. W. 3 and Jeet Singh, P. W. 6, the co-accused in a cross-case.
8. It may also be stated here that according to the testimony of Gurmej Singh, P. W. 2, Ahalchand Kaparia was present at the time of the occurrence. He was standing near the house of Balbir Singh on the culvert. Sukhvendra Singh. P. W. 3, also refers to the presence of Ahalchand. There is no manner of doubt that all the above-named 4 witnesses are partisan ones. Hamendra Singh being the brother of the deceased Bayant Singh and the rest of the witnesses being the near relations of the deceased. Ahalchand was an independent person, who could have given a true story. It was the bounden duty of the prosecution to examine such a material witness, particularly when no allegation has been made that, if produced, he would not speak the truth. Not only does an adverse inference arise against the prosecution case from his non-production as a witness in view of illustration (g) to Section 114, Evidence Act, but the circumstance of his being withheld from the Court casts a serious reflection on the fairness of the trial. The true rule on the question whether it is the duty of the prosecution to produce material witnesses has been laid down by the Privy Council in the case of Stephen Seneviratne v. King, AIR 1936 PC 289, and it is in these terms:--
'It is said that the state of things above described arose because of a supposed obligation on the prosecution to call every available witness on the principle laid down in such a case as 'Ram Ranjan Roy v. Emperor', AIR 1915 Cal 545, to the effect that all available eye witnesses should be called by the prosecution even though, as in the case cited, their names were on the list of 'defence witnesses'. Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case.
Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecution; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative on which the prosecution is based, must of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution.'
In a long series of cases the view taken in India was expressed by Jenkins C. J., in AIR 1915 Cal 545, that the purpose of a Criminal trial is not to support a false theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of the prosecutor is not to represent the police but the Crown and this duty should be discharged fairly and fearlessly and that he should, in a criminal case place before the Court the testimony of all the available eye witnesses. This view so widely expressed was not accepted by the Privy Council, but at the same time their Lordships affirmed the proposition that it was the duty of the prosecution to examine all the material witnesses, who could give an account of the narration of events on which the prosecution is based. In our opinion, the appellant has been considerably prejudiced by the omission on the part of the prosecution to examine Ahalchand, particularly, when no satisfactory explanation is forthcoming or even attempted for this omission.
9. We may now take up the next point raised on behalf of the appellant pertaining to the exercise of the right of private defence of person, It is in the evidence of the eye-witnesses P. W. 2 Gurmej Singh, P. W. 3 Sukhvendra Singh and P. W. 6 Jeet Singh that Bayant Singh abused the accused and asked them to face him. Guljara Singh then came forward and fired at Bayant Singh and Jut him on his left hand. Thereupon, Bayant Singh fired his pistol and hit Darbara Singh. He made two shots simultaneously. Guljara Singh ran away from the spot. Singhara, Singh and Mit Singh prompted Guljara Singh either to shoot Bayant Singh or to hand over his gun to them. In the meantime Darbara Singh moved forward and Bayant Singh fired at him twice. Guljara Singh, after hearing the invocation from Mit Singh and Singhara Singh, fired at Bayant Singh, hitting him on his chest, which resulted in his death. The fact that it was Guljara Singh who first hit Bayant Singh on his left hand is not fully corroborated by medical evidence. Dr. G. S. Bhati, p. W. 7, Medical Officer, Government Dispensary, Padampur, has deposed that he is not very sure about the nature of the injury No. 1 and that probably if was caused by gun fire. Therefore, the possibility of Guljara Singh being the aggressor is not free from doubt. The testimony of the above-named 3 eye-witnesses shows that Bayant Singh fired Ms pistol and hit Darbara Singh. He fired two shots simultaneously culminating in the death of Darbara Singh. Then Guljara Singh fired towards Bayant Singh, hitting him on his chest.
10. Under Sections 97 and 100, Indian Penal Code, right of private defence of a person arises to the accused not only against the person who actually inflicted a blow, but against all the members of that party which had deliberately formed an unlawful assembly with a common object: vide Mod Singh v. State, ILR (1954) 4 Raj 7. It is not necessary for the accused to set up the right of private defence. It is enough to refer to the wordings of Section. 97, I. P. C., which prove that every person has a right to defend his own body and the body of any other person against any offence affecting the human body. Even though, therefore, the accused Guljara Singh might not have been attacked fay Bayant Singh, he was certainly entitled to defend his helper.
11. The question then is the limit up to which he could go. We think that the second Clause of Section 100 of the Indian Penal Code covers this case. That Clause provides that the right of private defence of a person extends to the voluntarily causing death or any other hurt to the assailant if the offence, which occasions the exercise of the right, is such an assault as may reasonably cause the apprehension that grievous hurt or death would otherwise be the consequence of such an assault. In the present case the right of private defence of person arose, assuming that the statements of Guljara Singh, Sukhvendra Singh and Jeet Singh are correct, because of the attack of Bayant Singh on Darbara Singh. We feel that a gun shot injury on Darbara Singh must lead to a reasonable apprehension that grievous hurt or death might be caused.
12. The accused has not set up the plea of the right of private defence in so many words. He obviously could not do so because the case put forward by him was that of total denial. Necessary basis for such a plea is laid down in the examination of the prosecution witnesses as well as in the defence evidence. It is well settled that even if an accused does not plead self-defence, it is open to the Court to consider such a plea if the same arises from the materials on the record. The burden of establishing the plea is, no doubt, on the accused, but that burden can be discharged by showing preponderance of probabilities in favour of that plea: vide In re, Jogali Bhaigo Naiks, AIR 1927 Mad 97 and Munshi Ram v. Delhi Administration, AIR 1968 SC 702. In this connection reference may usefully be made to a Full Bench decision of the Allahabad High Court reported in Prabhoo v. Emperor, AIR 1941 All 402 (FB), head note (a) whereof reads as under:--
'In a case in which any general exception in the Penal Code is pleaded by an accused person and evidence is adduced to support such plea, but such evidence fails to satisfy the Court affirmatively of the existence of circumstances bringing the case within the exception pleaded, the accused person is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the said general exception) a reasonable doubt is created in the mind of the Court whether the accused person is or is not entitled to the benefit of the said exception.'
That decision has recently been reviewed by a Full Bench of the same High Court comprising 9 Judges in Rishi Kesh Singh v. State, AIR 1970 All 51 and it was observed that Prabhoo's case is still good law. The accused person who pleads an exception is entitled to be acquitted if upon consideration of evidence as a whole (including the evidence given in support of the plea of general exception) a reasonable doubt is created in the mind of the Court about the guilt of the accused. In AIR 1964 SC 1563. His Lordship Subba Rao J., speaking for the Court, pointed out that if the material placed before the Court such as oral and documentary evidence, presumptions, admissions or even the prosecution evidence satisfies the test of a prudent man, the accused would be deemed to have discharged the burden. With this background here the right of the private defence of person is, in our opinion, established from the evidence of the prosecution itself, if we proceed on the assumption that the testimony of the 3 eye witnesses is true. If Bayant Singh fired at Darbara Singh, the right of private defence of person arises in favour of the accused person. In other words, if someone on the side of Guljara Singh had been shot down, there would undoubtedly be the right of private defence on the side of the accused. It makes no difference in the circumstances if Guljara Singh fired just one shot or two shots in order to defend himself and his friends who had been attacked.
13. We, therefore, allow this appeal, set aside the order of the Court below and acquit the appellant Guljara Singh of the offence under Section 302, I. P. C. He should be released forthwith, if he is not required in any other case.