L.S. Mehta, J.
1. The prosecution story, in brief, is that deceased Manna Nath had a threshing ground in village Dorani. Sometime before the occurrence accused Bharat Singh raised a hut over his piece of land. Thereafter Manna Nath filed a suit against Bharat Singh in the Nyava Panchayat Friday, preceding the incident, was the date fixed for hearing that case One Devi Nath (Nath Baba) gave evidence on behalf of Manna Nath. On his return to village Dorani Bharat Singh inquired of him as to what evidence he had given in the matter. Devi Nath told him that he had stated what had occurred to him. Bharat Singh then threatened him. At that time Bal Ram, son of Manna Nath, happened to pass that way. Bharat Singh rushed towards him with a 'Jeli'. Bal Ram, however, escaped. Next day, i.e., on the evening of January 16, 1971, Bal Ram and Cnranji, nephew of Manna Nath, were returning home from their fields. When they reached Bharat Singh's house, Bharat Singh shouted that he would take them to task. Apprehending trouble, Bal Ram and Chiranji changed their route and went towards Puran Brahmin's housed. Bharat Singh, Avardan Singh and Arjun Singh rushed towards them and surrounded them in front of Birdha Gujar's residence. Bharat Singh and Avardan Singh were armed with lathis. Arjun Singh was empty handed. Both Avardan Singh and Bharat Singh gave lathi blows to Chiranji. Arjun Singh also participated in the beating. Devi Nath happened to come over there and beseeched the accused not to beat Bal Ram and Chiranji, but they paid no heed to his advice On hearing he and cry Manna Nath arrived at the spot with a 'Khuntiya' (a sharp-edged weapon). On seeing Manna Nath. Bharat Singh and his associates violently advanced towards him, whereupon Manna Nath gave a 'Khuntiya, blow on Bharat Singh's left hand Bharat Singh then gave a lathi blow on Manna Nath's head. Manna Nath fell down. Avardan Singh took up the 'Khuntiya, from Manna Nath's hand and gave therewith two blows on him Arjun Singh is also said to have given a stick blow to him. Meanwhile Mst. Madhi, wife of Devi Nath, reached there. She rescued Manna Nath. Bharat Singh then gave a lathi blow do her head, as a result of which she also fell down Thereafter accused went away from the spot. Manna Nath was moved to his house. He, however, died at about mid-night Next day first information report of the occurrence (Ex. P. 1) was lodged by Bal Ram with the police station, Sangod. The police registered a case and took over investigation. Post mortem examination of the dead body of Manna Nath was conducted by Dr. R.C. Dass Gupta, Medical Officer In-charge, Government Dispensary, Sangod. Following two injuries were found on the person of the deceased:
1. lacerated wound 2' x ' x scalp deep 4' above the medial end of the left eye brow; and
2. lacerated wound ' x ' x ⅛' on the right leg 3⅓ below patella.
In the opinion of the Doctor, Manna Nath died due to depressed fracture causing laceration of the brain.
2. Bal Ram was also medically examined by the same Doctor. Following two simple injuries were found on his person:
1. tender swelling of upper half of the left arm; &
2. tender swelling 3' x 2' on the neck.
The injuries were caused by a blunt weapon.
3. Similarly one simple injury was found on the person of Mst. Madhi. Its description is as below:
lacerated wound 1' x ' x scalp deep on scalp 3' above the left ear. It was caused by a blunt object.
4. The following 3 injuries were noticed by the same Doctor on the body of Chiranji:
1. abrasion 2' x 1' on deltoid region of the left arm;
2. lacerated wound 1' x ' x on the scalp 6' above the medial end of the left eye brow; &
3. abrasion 2' x ' on the left side of the back 2' to the left of the 9th thoracic vertebra.
The above injuries in the opinion of the Doctor, were simple in nature and were caused by a blunt object. Accused Bharat Singh was medically examined by the above-named Doctor on January 17, 1971, at 1.15 p.m. Following injuries were found on his body:
1. incised wound 3' x 1' upto bone on the left arm slanting from the lateral epicondyle and directed upwards and backwards; &
2. tender swelling on the left wrist joint:
Injury No. 1 was caused by a shard edged weapon and was grievous in nature. Injury No. 2 was simple and was inflicted by a blunt object.
5. After necessary investigation the police presented a challan to the court of Munsiff-Magistrate, Ramganj-Mandi. Learned Magistrate conducted a preliminary inquiry in accordance with the provisions of Section 207-A. Cr. P.C. and committed accused Bharat Singh, Avardan Singh and Arjun Singh to the court of Sessions Judge, Kota, to face trial under Sections 302, 302/34, 323 and 323/34, I.P.C. The accused denied to have committed the crimes. In support of its case the prosecution examined 14 witnesses In his statement recorded under Section 342, Cr. P.C. Bharat singh said that witness bore ill-will against him, as his brother had occupied a grazing land. Balram & Chiranji stopped him from proceeding towards the village&started; hurling abuses at him. In the meantime Manna Nath happened to come there&gave; a 'Khuntiya' blow on his left hand, Bal Ram also inflicted a lathi injury on his hand. Mst. Madhi too gave beating to him. In defense he examined two witnesses. The trial court, by its judgment, dated July 12, 1971, acquitted Avardan Singh and Arjun Singh. It, however, convicted Bharat Singh under Section 304, Part II, I.P.C. and sentenced him to 4 years' rigorous imprisonment. He was also convicted Under Section 323, I.P.C. & was sentenced to suffer six month's rigorous imprisonment Both the sentences were made concurrent.
6. Aggrieved by the above verdict, Bharat Singh has taken this appeal. The main contention of learned Counsel for the appellant is that Bharat Singh gave blows to Manna Nath in the exercise of the right of the private defense of his person. The right between Bharat Singh and his associates on the one side and Bal Ram, Chiranji and others on the other ensued and in that fight both Bal Ram and Chiranji sustained the injuries mentioned above. After that scuffle was over, Bharat Singh left the place. Later on, Manna Nath by way of retaliation caused two injuries, including one grievous hurt to appellant Bharat Singh. Bharat Singh, therefore, had every right to repulse the attack on Manna Nath in the exercise of the right of private defense of his person. The trial court, the counsel adds, committed error in holding that as Bharat Singh remained at the place of the occurrence, there was apprehension that he. might again attack Bal Ram and Chiranji and, therefore, Manna Nath assaulted Bharat Singh in the exercise of the right of private defense of person. Learned Deputy Government Advocate supported the judgment of the court below
8. From the medical evidence given by Dr. R. C Dass Gupta it stands proved that Manna Nath sustained a lacerated wound 2' x ' x scalp deep above the middle end of the left eye-brow. This injury was caused by a blunt object. In the opinion of the Doctor the deceased died of the depressed fracture causing laceration of the brain. From this evidence there is no manner of doubt that Manna Nath met homicidal death.
9. The question that survives for consideration is whether the injuries on the person of Manna Nath were caused by Bharat Singh and whether he did so in the exercise of the right of private defense of his person. The most important witness in this case is injured Bal Ram. In his examination-in-chief he supports the prosecution story. But in the cross examination he says:
After beating us the accused turned back. At that time my father was 4 or 5 paces away. My father was having a 'Khuntiya' with him which was 3' or 4' long. I gave a statement before the committing court that my father then gave a 'Khuntiya' blow to Bharat Singh. There after Bharat Singh gave a lathi blow to my father's head. That statement is correct.
PW 2 Chiranji also supports the prosecution version in his examination-in-chief. In the cross-examination he says that he dad not deposed in his police statement Ex. D. 2, at portion marked C to D, that Manna Nath, armed with 'Khuntiya', gave its blows to Bharat Singh and thereafter Bharat Singh gave a lathi blow to Manna Nath's head. Another eye-witness Mangilal PW 4, states that at first Bal Ram, Chiranji and he were beaten. Upon their raising a cry Manna Nath came. Both Bharat Singh and Manna Nath crossed each other on their way. In his statement before the police Ex. D. 7 he had stated, at portion marked A to B, that Manna Nath had arrived at the spot with a 'Khuntiya' in his hand and had given a blow there with on Bharat Singh's left hand. Bharat Singh then had given a lathi blow on Manna Nath. When the witness was confronted with that statement, he resiled therefrom. Almost to the same effect are the statements of PW 5 Kajod and PW 7 Kanhaiyalal.
10. From the above evidence it is clear that Bharat Singh first initiated the trouble. He gave beating to Bal Ram, Chiranji and others. Thereafter he wanted to leave the place of the occurrence and in fact he did take a turn for the purpose. Subsequently, Bal Ram's father Manna Nath happened to come with a sharp edged weapon 'Khuntiya' and inflicted injuries there with on the person of Bharat Singh. Of the two injuries sustained by the victim one was grievous. In the circumstance of the case, the only legitimate conclusion that can be drawn is that after the first combat was over, Manna Nath had no right to administer beating to Bharat Singh in the exercise of the right of private defense of person. When Manna Nath had no right to do so and he caused a grievous injury to Bharat Singh, the latter had every right to attack Manna Nath and caused injuries to him in the exercise of the right of private defense of his person, The attack made by Manna Nath was retaliatory. Exercise of the right of private defense of person or property does not permit such an attack. If Manna Nath's son or nephew was injured and the fight was over, the only course upon to him was the report the matter to the authorities concerned and not to take law in his own hand and wreak vengeance against the aggressor, particularly when at the stage there was no reasonable apprehension that death or grievous hurt would be caused to him or to his party-men. In support of this proposition a reference is made to Russel on Crimes, Twelfth Edition, Volume 1, page 456. The relevant passage is reproduced below:
When both parties were actually combating at the time the mortal stroke was given, the slayer was guilty of manslaughter; but if the slayer bad not begun to fight, or, having begun, endeavored to decline any further struggle and afterwards, being closely pressed by his antagonist, killed him to avoid his own destruction, this was homicide excusable by self-defense.
In Jai Dev v. State of Punjab : 3SCR489 , it has been observed by their Lordships of the Supreme Court:
As soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rouse, there can be no occasion to exercise the right of private defense. If the danger is continuing the right is there; if the danger or the apprehension about it has ceased to exist, there is no longer the right of private defense.
Similarly in Ranjit Singh v. The State AIR 1957 Punj. 806, it has been laid down that where although the deceased started the attack, he was soon disarmed, and one out of the two accused picked up the 'Gandasi' from the hands of the deceased, there could be no right of private defense in such a case particularly when the deceased had started running away from the place.
11. Here, after causing injuries to Chiranji, Bal Ram and others. Bharat Singh set out from the place of the incident. The cause for reasonable apprehension of death or grievous hurt disappeared and the threat to his person had been put to rout or destroyed. There was, therefore, no occasion for Manna Nath to exercise the right of private defense of person. The danger or reasonable apprehension of death or grievous hurt ceased to exist and in that context Manna Nath could not have caused injuries, including one grievous hurt, to Bharat Singh in the exercise of the right of private defense of person. Bharat Singh, under the circumstance, could have hit back Manna Nath to avoid his own destruction and such a homicide is excusable by self-defence. The law entitled him to defend himself and to secure his victory over his assailant by using necessary force. Law does not postulate, as Mayne has observed, that he should have modulated his defense step by step.
12. The third paragraph of Section 99, I.P.C., enacts that there is no right of private defense in cases in which there is time to have recourse to the protection of the public authorities: see Gurdatta Mai v. State of U.P. : AIR1965SC257 . A vindictive act by a person implies that the act was not done for protecting himself or his property, but was done with the motive of taking revenge. Such an act cannot be justified in the exercise of the right of private defense of person or property. The same will be the case where the object of inflicting harm is not a right to protect the person or the property of himself but to punish or retaliate or to teach a lesson to the opposite party. Here I may usefully quote a passage from a Division Bench decision of the Lahore High Court in Mohammed v. Emperor AIR 1947 Lah. 106. The passage runs as under:
Before a man can avail himself of the defense that he used a weapon in defense of his life, he must satisfy the Court that defense was necessary and that he did all he could to avoid it. When a body of men are determined to vindicate their rights, or supposed rights, by unlawful force and when they are engaged in a fight with men who on the other hand are equally determined to vindicate by un lawful force their rights, or supposed rights, no question of self-defence arises.
13. In this case Manna Nath having seen his nephew Chiranji lying injured rushed towards retreating Bharatsingh & struck blows on his person with a sharp edged weapon like a 'Khuntiya' He should not have done like that. He, on the other hand, could have approached the authorities concerned and put up his grievances. In this situation, the beating given by Manna Nath to Bharat Singh cannot be said to be in the exercise of the right of private defense of person. On the other hand it was a vindictive act, which was done not for protecting himself or his associates but with the motive of taking revenge when threat to person was not real & immediate.
14. It has been established beyond reasonable doubt from the evidence of Bal Ram, PW 1. Chiranji, PW 2, Mangilal, PW 4, and Kajod, PW 5, that Bharat Singh, gave beating to Bal Ram, Chiranji and Mst. Madhi at the initial stage of the combat. The medical evidence given by Dr. R.C. Dass Gupta corroborates this. Bharat Singh, therefore, is clearly guilty under Section 323, I.P.C. He has been awarded six months' rigorous imprisonment for causing simple injuries & that period had already expired.
15. As a result of the above discussion, Bharat Singh's appeal is partially accepted. He is acquitted by the crime Under Section 304, Part II, I.P.C. His conviction and sentence Under Section 323, I.P.C., are maintained As Bharat Singh had already undergone six months' rigorous imprisonment, he shall be released forth- with if not secured in any other case.