M.C. Jain, J.
1. The respondents were acquitted by the learned Sessions Judge, Alwar of the offences Under Sections 302 and 302/34 I.P.C., by the judgment dated 27-3-73.
2. Gagru P.W. 2 lodged a report at the Police Station Kishangarh on 25-11-72 at about 11 A.M. to the effect that his 'Sarson' Crop was standing in his field Pipalwala. On 24-11-72 he was informed by Roozdar P.W. 3 in the morning that his 'Sarson' crop has been uprooted and removed by the accused Laxmansingh. On this information he visited his field and found that his Sarson crop has teen uprooted and saw that foot prints were proceeding towards the field of Laxmansingh. He went to the village and there from visited the field of Laxmansingh along with Prem since deceased, Ramjilal, Banshilal P.W. 1 and Chhagan Singh. They found the uprooted crop covered with 'Kadvi' (Cattle fodder). Gagru demanded the return of the crop, but Laxmansingh resisted and there upon, according to Gagru, Laxmansingh Indersingh Bundisingh and Mst. Jeetu Bai responcents pounced upon his son Prem and inflicted lathi blows on him. The lathis had iron shods. A case under Section 379 I.P.C. was registered by the S.H.O. and the investigation was handed over to the Heed Constable Radheshyam. Radhey Shyam P.W. 6 then visited the spot and prepared the site plans and site motes Ex. P. 6 and Ex.P. 7. The accused persons were arrested. The 'Sarson' crop was seized from the field vide Ex.P. 12. The injured Prem was medically examined on 25-11-72. The injured died on 27-11-72, at 6.10 p.m. Thereupon the case was concerted under Section 302 I.P.C. Autopsy was conducted on the dead body on 28-11-72. Dr. P.S. Vijjan P.W. 8 on 25-11-72 found the following injuries on the person of Prem:
1. Tender swelling (haemotomma) with suspected fracture skull underneath 6 CM x 4 CM. in the left fronto temportal region of skull.
2. An abrasion 6 CM x 3 CM on right side of neck.
3. A tender haemotomma 4 CM x 3 CM on the top of skull.
Injuries Nos. 1 and 3 were grievous. On Post Mortem Examination the external injuries were confirmed and the following internal injuries were found:
1. There was collection of dark blood on the top of skull and left side of skull beneath the scalp. There was fissured fracture about the middle of left parietal running vertically for 8 CM. towards left ear. Fronto-Parietal Suture on left side extending to 1/2 side of right side Widened.
2. Fracture of Extends for 2 CM. from the suture on the frontal bone.
3. There was collection of bleed beneath the membrane which was clotted.
4. Frontal and left hemisphere of brain show collection of blood which extends to upper part of the right hemisphere.
3. In his opinion Prem died due to multiple skull fractures and intra-cranial haemorrhage. After completion of the investigation challan was pat up and the trial was conducted by the learned Sessions Judge, Alwar for the offences Under Sections 302 and 302/34 I.P.C.
4. At the trial the prosecution examined Bansi P.W.1, Gagru P.W.2. Roozdar P.W.3, Ishab P.W. 4, Kailashanker P.W.5, Radheshyam P.W.6, Tulsiram P.W. 7 and Dr. P.S. Vijjan P.W. 8 The statements of accused were recorded under Section 342 Cr.P.C. in which they denied the prosecution story. Laxmansingh accused stated that the truth is that Gagru, Hayatkhan, Banshi and Roozdar had come to his field. They removed crop of Gagru, which he denied. There upon they opened an attack on him as a result of which he sustained lathi blows at the hinds of Prem. He was medically examined by Dr. Satpal Yadav D.W. 1 on 25-11-72 and the following injuries were found on his persons:
1. Lacerated wound 1.75 C.M. x 75 x 2 CM on the palmmer aspect of distal phalynx of right thumb obliquely in direction.
2. Swelling of planar aspect of right index finger in its proximal and middle phalynx region
Three witnesses Dr. Satpal Yadav D.W. 1, Chhotelal D.W. 2 and Khandan Singh D.W. 3 were examined in defence. After hearing the arguments the learned Sessions Judge found the accused persons not guilty of offences, with which they were charged. The prosecution version was found doubtful and the learned Sessions Judge was of the opinion that the preponderance of probabilities goes to establish that if at all Laxmansingh and Mst. Jeetu Bai struck lathi blows on Prem, it was in the right of private defence. So their act is exempted in law from any criminal liability. The learned Sessions Judge after holding that the death of Prem was homicidal, dealt with the matter under various heads viz. delay in filing the First Information Report, delay in recording the statements of the eye Witnesses, unnatural conduct of Statements of the eye witnesses, unnatural conduct of the eye-witness different versions in the First Information Report. Police statements and statements in the Court about the prosecution story and its effect on the case. As a result of his findings the learned Sessions Judge acquitted the accused respondents. Hence this appeal by the State.
5. We Have heard Mr. Rajesh Balia, learned Public Prosecutor for the State and Mrs. Renu Chatterjee, learned Counsel for the respondents. We have perused the record of the case.
6. There are some undisputed facts in the case that the complainant along with his son Prem, Hayat Khan, Ishab, Roozdar, Banshi, Ramjilal, Chhagansingh and Bhoorji, went to the field of Laxman Singh in the morning and the complainant demanded the return of his Sarson Crop and an accusation was levelled against Laxmansingh that he removed his 'Sarson' crop. Laxmansingh claimed the crop to be his and resisted the removal of the crop and said that he will not allow to remove his crop. The question is as to how events proceeded there after. According to the prosecution case, as presented at the trial, the accused persons were unarmed. They went to there house situated in the field and cane back armed with lathis. Mst. Jeetu inflicted a lathi blow on the neck of Prem, which was followed by Laxmansingh, who dealt a lathi blow on the head of Prem, where by Prem fell down and then lathi blows were inflicted by Indersinsh and Bundisingh. At the trial Hayat Khan, Ramjilal, Chhagansingh and Bhoorji have not been examined Besides the statement of the complainant there are the statements of Banshi, Roozdar and Ishab. The statements of these witnesses were recorded for the first time after five days of the occurrence by the S.H.O. Kalyansingh. Re-investigation and reinterrogation was made by the circle Officer Shri Tulsi Ram P.W, 7. All the three witnesses were confronted with their Police Statements Ex.D. 1, Ex.D. 2 and Ex.D. 3. The first version which these witnesses gave was to the effect that the complainant and Sagru buried filthy abuses to the accused Laxmansingh. Thereupon Laxman Singh also retaliated and hurled abuses. Thereupon Prem wielded three four lathi blows on Laxmansingh. Laxmansingh thereupon warded of the lathi blows, The witnesses, on being confronted with the first Police version, denied the same & they stated that they saw no injury on the person of Laxmansingh & it is wrong that Prem attacked Laxman. If the statements of these witnesses are judged in the light of their first version as given in the Police no reliance can be placed on their testimony. The prosecution has been explained as to bow Laxmansingh sustained two injuries on his person. If the matter is viewed in the light of the first version given by the witnesses to the Police then it would appear that it was the deceased Prem who wielded lathi and opened an attack on Laxmansingh and while warding of the blows accused Laxmansingh sustained injuries. It is true that in the statements recorded by the Circle Officer the witnesses have given a different version and the investigation changed hands and re-investigation was made, but that does not mean that the accused persons can be deprived of to take advantage of the first investigation. It is all the more essential that the effect of the, first version of the witnesses may be considered more particularly when the prosecution has not come forward to explain the injuries on the person of Laxmansingh. Laxmansingh his not only received superficial injuries, but injury No. 1 on his person was a lacerated wound, which in all probabilities could be the result of a lathi blow. At what stage of the occurrence Laxmansingh received the injuries ought to have been explained by the prosecution, but the prosecution his completely failed to explain the same, which casts a serious doubt on the prosecution story and this possibility cannot be ruled out that when Laxmansingh resisted the removal of the crop, Prem might have and must have used force and opened an assault on Laxmansingh and in order to defend himself Laxmansingh retaliated and his lathi blows struck the head of the deceased. A case of exercise of right private defence his not been pleaded specifically by the accused Laxmansingh although he stated that he was assaulted, but such a case is clearly spelt out from the prosecution story itself, firstly, in view of the ear ier version of the witnesses to the Police and secondly, on account of failure of the prosecution to explain injuries on the person of Laxmansingh. Apart from the infirmities, which have been considered by the learned Sessions Judge the above aspect of the whole case is rather more significant. It may be stated and it is a settled principle that even when the specific plea of right of private defence is not taken and is borne out from the prosecution case itself, the Court can take into consideration such a plea and the onus is not so heavy on the defence, as is on the prosecution. The defence has only to probabilise the plea relating to the right of private defence. The circumstances as considered above, in our opinion, clearly probabilise the plea of right of private defence of person.
7. Mr. Balia learned Public Prosecutor submitted before us that the demand of return of 'Sarson' crop was made, as the same belonged to the complainant and even if any force was used for the same, the right of accused persons did not extend to causing death of Prem. The accused has sustained only minor injuries. In the circumstances of the case there could be no reasonable apprehension on the part of the accused Laxman singh that he Would sustain grievous hurt. Under Section 100 of the I.P.C. the right of private defence of the person extends to causing death, when the assault may reasonably cause the apprehension that either death or grievous hurt will be the consequence of such assault. This question also is required to be considered in the situation, in which accused Laxmansingh was placed Three to four lathi blows were wielded on Laxmansingh by Prem. It would be unreasonable to consider that a reasonable apprehension of at least grievous hurt would not arise in the mind of the victim Laxman Singh. Two blows have been effective on him though these injuries have been sustained by Laxmansingh on thumb and index finger. The parts on which Laxman singh sustined injuries show that he must have received these injuries in the process of warding of the lathi blows and at that moment of time it was reasonable for him to entertain an apprehension that he may suffer a grievous hurt. It was difficult for him in the situation, in which he was placed, to mould his defence step by step. Thus it cannot be said that the accused Laxmansingh exceeded his right of private defence of person. The argument of the learned Public Prosecutor, in our opinion, is not tenable in the circumstances of the case. Besides that it may also be stated that we are hearing an appeal against acquittal. The View taken by the learned Sessions Judge cannot be said to be unreasonable, even if the evidence can be viewed differently, that would be no reason for the reversal of acquittal of the accused persons in appeal. There are no substantial and compelling reasons to reverse the View taken by the learned Sessions Judge.
8. In the result we find no force in this appeal. So it is hereby dismissed.