M.L. Jain, J.
1. This is an appeal against the judgment of the Additional Sessions judge, Bundi dated 9-10-71 by which he convicted Modu appellant under Section 304 part II IPC and sentenced him to undergo rigorous imprisonment for five years. He was also convicted under Section 323 IPC and sentenced to rigorous to imprisonment for six months Both the sentences were directed to run concurrently. By the same judgment appellant Badri was convicted under Section 323 IPC and sentenced to undergo rigorous imprisonment for six months.
2. I heard the arguments and perused the record.
3. The prosecution case is that on March 22, 1971, in the morning appellant Modu carried his she costs in the field of Gopal at Kajodji's Jhoppriyan within the police station Gendoli, District Bundi. The goats began to damage crops to which Gopal objected and began to drive the goats out of the field. It is alleged that Modu then gave a lathi blow on the left hand of Gopal, His brother Sarwan went to the village about a mile away & brought his brother Chittar. At the same time, Latoor also reached the scene of occurrence in order to rescue his brother Chhitar but Modu bit him with lathi and Latoor died. The occurrence is said to have taken place at about breakfast time, while the report was made at about 1.45 p.m, as shown in Ex. P5A.
4. Daring investigation, the Police Officer arrested the accused next day. Upon the information of accused Modu, be recovered a lathi, vide memo Ex. P6 dated 26-3-71, He bad prepared the site plan Ex. P1 on 24-3-71.
5. The medical reports regarding Latoor show that deceased Latoor received a contusion in the right temporal region extending down to face and upwards Right eye was also found to have subconjuctiuval haemorrhage. Blood stained fluid was coming out of nostrils and mouth. Internal examination disclosed that the right parietal bone bad fractured, There was heamatoma in subdural spice and collection of blood in the parietal region and around the lateral sulcus of right cerebral hemisphere. The skull injuries were described to be such as to cause death in the ordinary course of nature. The injuries were also such as could be caused by lathi.
6. Gopal got a contusion would in the left arm Chhitar received eight injuries including contusion on the right parietal eminence zygomatic region, right hand ulna and abrasions on fore-head, left hand, right calf and left thumb.
7. It is further disclosed that accused Modu also suffered injuries. He got a lacerated, wound on the skull, a contusion on the left thigh and another contusion on the right fore-arm.
8. The happening of the event is admitted but while Badri denied to have taken part in it the case of Modu was that be had gone to the field of Gopal in search of his goats. Gopal abused him and ran after him in order to beat him. In reply he gave a lathi blow to Gopal. While Sarwan wept towards the village, he himself, out of fear, came to the field of Badri where there came the complainant party, six in number, Latoor gave a lathi blow on his head and it was in exercise of right of private defence of his person that be replied with a lathi blow to latoor which proved fatal. He said that he was thee beaten by Chhitar and then he also beat Chhittar. The defence also led three witnesses.
9. The learned Additional Sessions Judge disbelieved the case set up by the counsel and convicted the accused appellants as aforesaid. His view was that Modu had no right of self-defence because he was an aggressor and he committed criminal trespass and it continued till the incident lasted.
10. The learned Counsel for the appellants has submitted that the case against Badri was entirely false. The learned Additional Sessions Judge, however, believed the testimony of Gopal PW. 1, Sarwan PW. 2, and Ghansi PW. 3 that Chhitar was beaten by both Modu and Badri. The evidence of these witnesses is corroborated by the medical evidance. Badri has set up a case of total denial It is not possible for me to discard the findings of the learned lower court simply on the ground that the witnesses falsely involved Badri in beating of Latoor. I therefore, find that Badri has been rightly convicted.
11. As regards Modu, the learned Counsel for the appellants submitted that the occurrence did not take place in the manner and place stated by the prosecution. It has also been established by the prosecution and defence evidence that the accused acted in exercise of right of private defence He urged the following points in order to show the truthfulness of the defence.
(i) the report was lodged with delay.
(ii) the site plan prepared by the investigation officer does not show on the ground any marks of blood or any foot-marks showing fight nor was the accused charged with an offence of trespass. The site plan further shows that there was no crop in the field or Gopal and therefore, there could be no occasion for Modu to carry his she-goats into the field of Gopal to cause damage to the crop.
(iii) the witnesses are not certain on which side of the field of Gopal the occurrence took place. That she was that the occurrence did not take place in the field of Gopal Moreover when Modu had beaten Gopal and knew that Chhitar and Latoor were coming to he (sic) his brother it is unnatural that Modu would continue to stay on there in the field of Gopal. The natural probabilities are that Modu should have run for safety to the field of Badri and it is here that Modu was attacked. It is admitted that there was interval between two incidents namely, (1) beating of Gopal and (ii) beating of Chhitar and Latoor The first occurred in the field of Gopal and the second must have occurred in the field of Badri.
(iv) The injuries of Modu have not been explained by the prosecution.
(v) All the eye-witnesses are relations of the deceased and in the circumstances of the case, they could not be believed.
12. Now, the argument that the report was delayed has little substance because Gopal said that the occurrence took place at meal time in the morning. The report was lodged at 1.45 p.m., vide First Information Report Ex. P7 Therefore, this is not such a delay which can cast any doubt on the veracity of the prosecution case.
13. It is true that as per site plan, no blood stains were noticed on the ground in the field of Gopal but then the injuries of all the three persons, namely, Gopal, Chhitar and Latoor do not show that any blood was shed. In the site plan the Investigation Officer has mentioned nothing about the foot marks and it is only in cross-examination that be said that be found no footmarks in the field of Gopal. It is true that the appellant was not charged for trespass but all this too cannot lead to the conclusion that the occurrence did not take place in the field of Gopal. The fact that one of the witnesses said that the occurrence took place in the eastern side of the field & the other said on the western side of the field and the site plan showed that the place of occurrence was on the southern side of the field, can also not dislodge the finding that the occurrence did take place in the field of Gopal Bajrang PW. 4 has deposed that he saw Latoor lying unconscious in the field of Dhanna (or for that matter Gopal). On the other hand, Kastoora D.W. 1, has has not said that the occurrence took place in the field of Badri. He stated that the she goats of Modu entered the field of Dhanna Gopal and Sarwan went armed with lathis towards the field in order to beat Modu Modu gave a lathi blow to Gopal and then carried his she-goats towards the field of Badri at about 3 furlongs away. Then Sarwan went to the village. What happened afterwards he could not say. It was very easy for this witness to say categorically that the occurrence took place in the field of Badri but this witness remained discreetly silent about this, Hanaraj D.W. 2 deposed that Modu was grazing she goats while Badri was cutting the wheat crop. Latoor, Chhitar, Ghansi and Sarwan come from the eastern side. He do s not also categorically say that the occurrence took place in the field of Badri. In cross-examination he stated that the quarrel took place to wards the side of the field of Devi Shanker. He himself did not come to the field of Badri. Therefore, even the defence witnesses do not appear to be certain that the occurrence took place in the field of Badri and not in the field of Gopal.
14. In the aforesaid circumstances, it cannot be said that the learned lower Court was wrong in holding that the occurrence took place in the field of Gopal and not in the field of Badri.
15. It has been no doubt proved that Modu received injuries. It is further clear that the prosecution has not cared to explain the injuries, The law on the point of non-explanation of the injuries has been stated in the State of Gujrat v. Bai Fatima and Anr. : 1975CriLJ1079 thus:
In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:
(1) That the accused bad inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not effect the prosecution case at all.
16. The learned Counsel for the appellant submits that this is a case in which the con explanation of injuries led to the result that not only the the prosecution case has not been proved beyond reasonable doubt but if at all the accused was responsible for inflicting the injuries, it was in the exercise of right of private defence. The learned Public Prosecutor submits that this is a case in which non-explanation does not affect the prosecution case at all.
17. The learned Additional Sessions Judge was of the view that it was probable that the accused received injuries at the bands of the complainarty but since Modu was the aggressor. Gopal & the party had a right to drive him out of the field and the accused had no right of private defence to support his trespass.
18. I have considered the facts and arguments of case. It has been established that accused Modu entered the field of Gopal with his she-goats and Gopal abused him and therefore, he gave a lathi blow to him. It is also further proved that Chhitar was also beaten by Modu. I have not upheld the argument that there was time available to the accused to leave the field of Gopal and go to the field of Badri and it was here that Latoor attacked him and in reply he caused his death.
19. Learned Counsel for the appellant submitted that the learned Additional Sessions Judge was not correct in saying that there were three external injuries on the body of the deceased while as a matter of fact there was only one injury on the right temporal region. Other injuries were consequential to this injury. It was argued that Latoor was done to death up-on a single injury, therefore Latoor must have caused the injuries which Modu received, before he fell down The learned Counsel for appellant further urged that the prosecution case that Chhitar and Latoor came one after the other was not corroborated by any evidence and therefore the Court should have come to the. conclusion that Chhitar and Latoor first attacked Modu together and Modu had a right to cause death in exercise of the right of personal defence.
20. The witnesses of the prosecution cannot be disbelieved simply on the ground that they are close relatives Gopal PW. 1 and Chhitar PW. 5 being brothers while Swaran PW. 2 and Latoor deceased both real brothers are the first cousins of the former Ghansi PW. 3 in the son of the sister of Gopal's father. But Gopal and Chhitar have received injuries and therefore they are stamped witnesses and Ghansi was watching the occurrence from a distance of 100-126 paces Their evidence can be relied upon.
21. The last question that survives for decision is whether the non explanation of the injuries of Modu can lead to the conclusion that he caused the death of Latoor in exercise of self referee or whether it is a case where the non-explanation of the injuries does not effect the prosecution case at all.
22. The learned Additional Sessions Judge rejected the right of self defence claimed by Modu on the ground that when Shri Modu committed criminal trespass Shri Gopal had a right to cause simple injuries to Modu in exercise of right of private defence because be was an aggressor and he committed criminal trespass & it continued till this incident lasted.
23. The right of sell defence is available only to the accused person, Therefore, it is irrelevant to consider whether the complainant party had any right of defence or not, though such facts would be mattrial for considration while determining as to who was an aggressors and opened the first assault. The learned Additional Sessions Judge was not correct while observing that Modu could not exercise right of private defence because be bad committed criminal trespass. The question is whether Latoor (or Chhitar too) committed such an assault as caused a reasonable apprehension that death or grievous hurt will otherwise be the consequence of such an assault which Latoor or his cousin made was in itself in reply to previous assault launched by the accused Now, the evidence which the prosecution has led is that when Latoor rushed to the rescue of cousin Chhitar who was being beaten by Modu and Badri, and and came close to the spot of the trouble, the accused attacked him with lathi and felled him to the ground & the deceased died afterwards. The accused could claim no right of private defence as he himself was the aggressor. The plea of the accused was that he had beaten Chhitar after Latoor had fallen cannot be believed. It will not therefore, be precisely correct to may that the accused forfeited his right of private defence because be committed trespass and continued the same but it will be more correct to hold that the accused forfeited his right of self defence because be committed aggression by first opening assault on Chhitar. Even if Latoor delivered any blow to the accused while rescuing Chhitar, it cannot give rise to right of self defence to the accused, inspite of the fact that he cross-examined the prosecution witnesses to raise this plea, took up a specific defence and led evidence in support thereof I, therefore, hold that even if the injuries were not explained by the prosecution and assuming that such injuries were caused to him by the complainant party, it is not possible in the circumstances of the case, to arrive at the conclusion that the accused caused the death of Latoor in reply to the injuries received by him.
24. Hence, I agree with the learned lower court in its conclusion that the accused was not protected by the right of self-defence and was guilty of offences under Section 304 Part II and also under Section 323 IPC. As regards Badri, I have already said that he was lightly held guilty under Section 323 IPC for causing hurt to Chhitar.
25. Modu accused has been awarded five years rigorous imprisonment which I do not consider to be on the high side in the circumstances of the case. And I do not find any reasons also to enlarge him on probation. He has injured two persons and caused the death of one. But it appears that there is no special reason why Badri cannot be gives such benefit.
26. I, therefore, dismiss the appeal of Modu. He shall surrender to his bail bonds in the Court of the CJM Bundi to serve the sentence. But I partly accept the appeal of Badri and direct that the conviction of Badri is upheld but his sentence is set aside and instead he shall be released provided he furnishes personal bond in the amount of Rs. 1000/- and surety in the like amount to the satisfaction of the Additional! Sessions Judge, Bundi, undertaking to appear and receive sentence when called upon to do so within a period of one year from today and in the means time to keep the peace and be of good behavior. He shall be allowed one month's time to furnish security by the learned Additional Sessions Judge from the day this judgment is received in his court. In case he fails to so furnish the surety hands his appeal too shall be deemed to have been dismissed.