M.L. Shrimal, J.
1. The three appellants, viz. Danaram, Ransingh and Jhandu were tried by the learned Additional Sessions Judge, Sri Ganganagar along with two other accused (since acquitted) in connection with an occurrence which took place on June 5, 1971 at 9 A.M. at village Rohi Paldi in the field of Budhram. In the course of that occurrence Hemraj, Nihala and Budhram sustained injuries at the hands of the accused persons. Hemraj met instantaneous death. The learned Additional Sessions Judge convicted the three appellants under Section 302 read with Section 34, I.P.C.. and sentenced each of them to imprisonment for life and a fine of Rs. 500/-, in default of the payment of which each of them was ordered to undergo rigorous imprisonment for a period of three months. All the three appellants were acquitted of the remaining charges. The two accused viz. Mst. Bhaga and Mst. Dakori tried along with the appellants were acquitted of all the charges framed against them.
2. The prosecution story as disclosed at the trial is that the fields of the accused Danaram and Budhram injured are adjacent to each other. On June 5, 1971 all the five accused persons formed an unlawful assembly, the common object of which was to take forcible possession of the field and commit the murder of Hemraj and others. In prosecution of this common object accused Danaram armed himself with 'lathi' Ransingh and Jhanduram armed themselves with axes and Mst. Bhaga and Mst. Dakori armed themselves with 'lathis'. All of them came together to the field of Budhram and inflicted injuries on the person of Hemraj, Nihala and Budhram as a result of which Hemraj met instantaneous death. First information report of this occurrence was lodged at the police Station, Bhadra on June 5, 1971 at 7 pm. The distance between the police station and the place of occurrence is 15 miles. The autopsy on the dead body of Hemraj was performed by P.W. 6 Dr. Gopaldas. The post-mortem report is Ex. P. 2 Nihala and Budhram were also clinically examined by P.W. 6 Dr. Gopaldas for their injuries. The injury reports are Ex. P. 4 and ExP. 5 respectively. All the accused appellants were arrested by the Police on June 6, 1971. On the same day Ransingh expressed his desire to get the blood stained axe recovered from the place of its concealment. In consequence of this information a blood-stained axe was got recovered by the police at the instance of the accused from the 'Bhakhal' of Ransingh. The recovery memo is Ex. P. 14. The recovered axe was sent to the Chemical Analyst and Serologist, who found it to be stained with human blood. The report of the Serologist is Ex. P. 22. On June 12, 1971 Jhanduram expressed his desire to get the blood-stained axe recovered from the place of its concealment. The information memo is Ex. P. 20. In consequence of this information a blood-stained axe was recovered at the instance of the accused vide Ex. P. 16. It was also found to be stained with human blood by the Serologist vide Ex. P. 22. Accused Danaram expressed his desire on June 12, 1971 to get the blood-stained lathi recovered from the place of its concealment. The information memo is Ex. P. 19. In consequence of this information a blood-stained 'lathi' was recovered vide Ex. P. 15 but as the blood found on the 'lathi' was disintegrated the Serologist could not express his positive opinion regarding the nature of blood, and as such this recovery cannot be of any avail to the prosecution.
3. The police after usual investigation submitted a charge sheet against all the five accused persons in the court of Munsiff-Magistrate, Bhadra, he learned Magistrate after taking proceedings under Section 207A, Cr. P.C. committed all the live accused for trial to the Court of Sessions Judge, Sri Ganganagar, who transferred the case to the Court of Additional Sessions judge, Sri Ganganagar for the trial. The accused pleaded not guilty to the charge and the prosecution examined eight witnesses in support of their case out of whom P.W. 1 Arjanram, P.W. 2 Budhram and P.W. 3 Nihala were examined as eye-witnesses to the occurrence. PW. 6 Dr. Gopaldas is the person who performed autopsy on the dead body of Hemraj and clinically examined P.W. 3 Nihala and P.W. 2 Budhram. P.W. 8 Rameshwar Singh is the Investigating Officer of this case. The accused persons in their statements recorded under Section 342, Cr. P.C. denied their complicity in the crime. The accused Danaram also stated that on the date of occurrence the land in dispute was under the cultivatory possession of the accused persons. They had sown their crop. Hemraj, Nihala and Budhram trespassed over the land and began to destroy the crop. Accused Mst. Bhaga and Mst. Dakori entreated the complainants not to destroy the crop which infuriated them so much that they started belabouring Mst. Bhaga and Mst. Dakori. Ransingh wanted to rescue them but he was also belabored. Thereafter accused Danaram and Ransingh inflicted injuries on the person of Hemraj, Nihala and Budhram. He further stated that Hemraj was armed with an axe and the rest of the members of the complainant party were armed with lathis. Accused Jhanduram pleaded alibi. The accused persons in support of their plea examined D.W. 1 Meharchand, D.W. 2 Mamraj and D.W. 3 Bhani Ram. The learned Additional Sessions Judge placing reliance on the portions of the statements of the defence witnesses and the statements of the three eye-witnesses in cross-examination held that the accused party was in physical possession of the land in dispute & their crop was standing on it on the date of the occurrence. The learned Judge further held that accused Mst. Dakori sustained three injuries on her person. Accused Mst. Bhaga sustained one incised wound and the accused Ransingh sustained six simple injuries. All the three accused 'persons sustained injuries during the course of the same occurrence, at the hands of the members of the complainant party when Mst. Dakori and Mst. Bhaga (accused asked them not to uproot the crop. He held that the accused Mst. Bhaga and Mst. Dakori participated in the assault in exercise of their right of private defence of the person and property and on this finding he acquitted both the accused persons. As regards the three remaining accused the learned Additional Sessions Judge held that they had inflicted number of injuries on the person of Hemraj even after he had fallen on the ground and the right of private defence available to the accused persons in the beginning was lost subsequently when their action became vindictive & malicious. On the above findings the learned Judge convicted and sentenced the three accused appellants as mentioned above, by his judgment dated March 10, 1972. Hence this appeal.
4. From the statements of P.W. 1 Arjanaram P.W. 2 Budh Ram P.W. 3 Nihala and P.W. 6 Dr. Gopaldas and the post mortem report Ex. P. 2 it stands proved beyond reasonable doubt that Hemraj (since deceased) sustained injuries at the place and time, as alleged by the prosecution Mr. S.T. Porwal, learned Counsel for the appellants, has assailed the judgment of the trial court on a number of grounds which will be dealt with adseriatum. The learned Deputy Government Advocate, appearing on behalf of the State, has supported the judgment of the trial court. The learned Counsel for the accused has urged that the entire prosecution case depends on the testimony of the three eye-witnesses PW. 1 Arjunaram, PW. 2 Budhram and PW. 3 Nihala who are closely related to each other and are highly interested in the deceased and so their statement cannot be relied upon to convict the accused for a charge of murder, in the absence of independent corroboration. Besides that two witnesses Pitha and Jagar named in the first information report and examined by the Police during investigation have not been examined on behalf of the prosecution and as such an adverse inference may be drawn against the truthfulness of the prosecution story. The learned Counsel, appearing on behalf of the State, has brought to our notice the order sheet dated February 8, 1972 recorded by the learned Additional Sessions Judge when in it has been mentioned that an application was moved on behalf of the prosecution stating that the witnesses Pitha and Jagar had been won over by the defence and as such they are not being produced. On the basis of this order sheet it has been urged that the prosecution was not bound to examine a witness who was won over by the defence, and the accused were free to examine them in their defence, if they so chose. We find considerable force in this contention. The Public Prosecutor stated at the trial that he was giving up the witnesses as they were won over. The witnesses, if produced would have been no better than suborned witnesses. They were not essential to the unfolding of the narration on which the prosecution was based; if examined the result would have been confusion became prosecution would have proceeded to discredit them by cross examination. No other Convicting reason for their nonproduction has been alleged. In these circumstances no adverse inference could be drawn against the prosecution. Reference may be made to Bakhshish Singh v. The State of Punjab : 1957CriLJ1459 A witnesses cannot be disbelieved simply on the ground that he is a close relative of the deceased. The occurrence took place in the field where the witnesses were working. Their presence near the place of occurrence was most natural. The two witnesses Nihala and Budh Ram are injured eye-witnesses. From the statement of PW. 6 Dr. Gopaldas & the injury reports Ex. P. 4 & Ex. 5 it has been proved that these two witnesses must have sustained the injuries during the course of the same occurrence for which the accused persons were convicted. In such circumstances the presence of these witnesses on the scene of occurrence cannot be doubted. The learned Counsel has read over the statements of these witnesses to us. Inspite of lengthy cross-examination nothing has appeared in their statements on the basis of which the veracity of their statements can be doubted. Their statements are consistent. The trial court, which had the opportunity to watch the demeanour of the witnesses in the court, has found them to be reliable and believable. We find no reason to hold otherwise.
5. The second contention is that the prosecution witnesses have made an omnibus statement regarding beating given to Hemraj by the accused persons and the details of the attack on the victim by the respective accused have not been given, as such none can be held responsible. Moreover, the quarrel took place all of a sudden and the accused persons inflicted injuries on Hemraj (since deceased) and others without premeditation and had not taken any undue advantage or have acted in a cruel and unusual manner, as such each of the accused, can be, at the most, held responsible for causing simple hurt. We are unable to agree to this contention. It will be too much to expect from such eye-witnesses, where a large number of persons attack a fallen victim, to state as to whose blow fell on what part of the body of the victim. It was possible for the witnesses only to observe the incident and not the details. The three eye-witnesses have attributed the act of assault to all the three accused appellants against the same deceased without particularising the part of the body on which the injuries were inflicted, the evidence of all these witnesses suffer from no infirmity and cannot be discarded. If these witnesses would have stated the portions of the body on which such injuries were inflicted by each of the accused after Hemraj had fallen down the probably the learned Counsel for the accused would have raised an objection that it was improbable and he would have urged that their evidence be branded as unbelievable. The evidence of these witnesses must, therefore, be accepted and we cannot but hold that all the three appellants conjointly inflicted injuries on the person of Hemraj (since deceased) even after he had fallen down and all the three had the common intention to cause the harm caused to the deceased.
6. The third contention is that the trial court's finding is that the accused persons were in cultivatory possession of the field where the occurrence took place, and the members of the complainant party were trespassers. They had no right to uproot the crop sown by the accused persons. As such the accused were within their rights to throw the aggressor out. Be sides that the accused persons had sustained injuries it the hands of the numbers of the complainant party. PW. 6 Dr. Gopaldas, who clinically examined accused Ransingh noticed six injuries on his person out of which four were by a sharp edged weapon and two were by a blunt weapon. His injury report it Ex. D. 3. The same doctor clinically examined Mst. Bhaga and noticed one incised wound. Her injury report is Ex. D. 2. On the same day he also examined Mst. Dakori and noticed three contusions on her person. The injury report is Ex. D. 1. His further contention is that the injuries caused to Hemraj, PW. 3 Nihala and P.W. 2 Budhram were caused in exercise of the right of self defence of person available to the accused. Simply because Hemraj (since deceased) sustained fatal injuries and succumbed to them, the accused cannot be held guilty of the offence punishable under Section 302, I.P.C. The (2 time) court must weigh the circumstances in which the occurrence took place. The accused persons cannot be expected to measure the blows inflicted by them with perfect accuracy. He further urged that the quarrel took place all of a sudden and the accused persons inflicted injuries on Hemraj and others without Premeditation in the heat of passion and without any indention to cause more harm than necessary for the purpose of such defence. The learned Counsel for the State urged that accused were trespassers, and they were not entitled to any right of private defence. It was a self sought quarrel.
7. There is consistent evidence on record that accused persons were in cultivatory possession of the field over which the quarrel took place. Even if it be held that they had trespassed upon the land, it can be safely said that they were in settled possession. One of the usual tests to determine the quality of a settled possession in the case of an agricultural land would be whether or not the trespassers after having taken possession had grown any crop. Had the crop been grown by the trespassers, even the true owner would have had no right to destroy the crop grown by the trespasser and take forcible possession thereof. In a case, such as we have in hand, the trespasser will have a right of private defence. It is also the settled law, that a person when called upon to face an assault, has a right to protect himself rather than rush to the police station. Where there is an element of invasion or aggression, on, the property, where the crops are growing, by a person who has, no right to take forcible possession, then there is obviously no room to have recourse to the public authorities and use even force, if necessary. The right of private defence of property or person where there is real apprehension that the aggressor might cause death or grievous hurt to the defender, could extend even to the causing of death. A mere reasonable apprehension is enough to put the right of defence into operation, but it is also the well-known position of law that a right of self defence is only a right to defend oneself and not to retaliate. It is not a right to take revenge.
8. From the proved facts on record it can be said, that the accused had the right of private defence. But the question needs determination is to what extent? P.W. 2 Budhram stated that accused Jhanduram and Ransingh surrounded Hemraj. Hemraj in order to save himself ran to ward the east. At that stage Jhanduram inflicted an axe-blow on the head of Hemraj and thereafter Ransingh inflicted another blow on the head of Hemraj with an axe. Danaram also inflicted on blow on his back as a result of which Hemraj fell down on the ground. Even thereafter all of them went on showering blows on the person of Hamraj. P.W. 3 Nihala went to rescue him but he was also not spared and accused Jhanduram inflicted an axe-blow on his person and thereafter Danaram and others belaboured him. All the accused ran towards Budhram for inflicting injuries on his person. The witness in his self-defence moved his stick to and fro as a result of which the accused go injured & then after he was also belaboured by the accused Jhanduram and Ors. To the same effect is the statement of P.W. 1 Arjanram and P.W. 3 Nihala. Thus there is consistent evidence on record that the three appellants in the company of others inflicted injuries on the person of Hemraj (since deceased) even after he had fallen. The Trial court has also held that Hemraj was assaulted when he was retreating and the major part of the injuries was inflicted on him after he had fallen down.
9. The post-mortem examination by P.W. 6 Dr. Gopaldas on June 6 1971 reveals that there were as many as 41 injuries on the person of Hemraj (since decesed) and out of which 13 were incised wounds, 27 contusions and one was abrasion. Injuries Nos. 6 17 and 18 were found to be grievous. Out 10 the total 41 injuries 10 injuries were sustained by Hemraj (since deceased) on his head. P.W. 6 Dr. Gopaldas stated that in his opinion the cause of death was shock and haemorrhage resulting from the collective cumulative effect of the multiple injuries inflicted on the body of Hemraj (since deceased). He further stated that the injuries were sufficient in the ordinary course of nature of cause death. Requirement of Clause (3) of Section 300, I.P.C., is that the injuries inflicted upon the person of the deceased must be intentional as contra-distinguished from accidental. It is not necessary that the offender should intend to cause death. So long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature, the provisions of Section 300(3) I.P.C. are attracted. What is required to be proved is that firstly it should be established that a bodily injury is present. Secondly the nature of injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present the inquiry proceeds further and fourthly it must be proved that the injury of the type which is described made up of all the three elements set out above were sufficient to cause death in the ordinary course of nature. This fart of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
10. From the above discussion it is clear that whenever a court is confronted with a question whether the offence is murder or culpable homicide not amounting to murder on the facts of a case, it will be convenient for it to approach the problem in the three stages. The question to be considered at the first stage would be whether the accused has done an act by doing which he has caused the death of another. If so, whether that act of the accused amounts to culpable homicide as defined in Section 299, I.P.C. If the answer to this question is prima facie found in the affirmative the stage for considering the operation of Section 300, Penal Code is reached. This is stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of definition of murder defined in Section 300, I.P.C.. If the answer to this question is in negative the offence would be culpable homicide not amounting to murder punishable under the first or second part of Section 300, I.P.C., depending on-whether the second or the third clause of Section 299 is applicable. If the answer is positive but the case comes within any of the exceptions enumerated in Section 300, I.P.C., the offence would still be culpable homicide not amounting to murder punishable under Section 304, I.P.C..
11. However, the main point, which arises on the basis of the facts proved on the record, is whether the conviction of the accused-appellants for the offence under Section 302/34 I.P.C. is justified. Finding of fact, as mentioned above, shows that the accused-appellants were in possession of the field over which the quarrel took place. It has also been proved from the statement of P.W. 6 Dr. Gopaldas that accused Dakori sustained injuries caused by a blunt weapon and Mst. Bhaga & Ransingh sustained injuries by a sharp-edged weapon in the same occurrence. The prosecution has failed to explain as to how Mst. Bhaga and Ransingh sustained injuries. The prosecution had a duty to explain the injuries sustained by the accused. From the statements of the accused persons and the statement of P.W. 6 Dr. Gopaldas it has been proved that it was most likely that these three accused persons should have sustained injuries at the hands of the members of the complainant party. The failure of the prosecution to offer any explanation as to how sharp edged injuries were caused to the accused persons makes the defence set up by the accused persons probable. The deceased Hemraj and his associates were aggressors and as such right of self-defence to person and property arises in favour of the accused persons. That right, however could not justify the act of the accused-appellants in causing as many as 41 injuries so as to cause instantaneous death. The right of private defence was very limited one, and it did not provide any justification for giving fatal blows. The use of weapons by the accused after Hemraj (since deceased) had fallen down was in excess of the right of private defence, and it became much more excessive when the blows were inflicted on the head, which is a vital part of the body. In the ordinary course of nature the cumulative effect of the injuries was likely to cause the death of Hemraj (deceased). From the fact that a number of blows were inflicted by the accused persons of Hemraj since deceased) an inference follows that all the appellants intended to cause death or atleast intended to cause such injuries as would in the ordinary course of nature result in his death. In adopting this course the appellants would have been clearly guilty of the offence of murder, had there been no right of private defence available to them. Since such a right did exist the case Will fall under the exception under which culpable homicide does not amount to murder. On the ground that the death was caused in exercise of right of private defence but by exceeding that right an offence of this nature is made punishable under the first part of Section 304 I.P.C.. Consequently, the conviction of the appellants must be under Section 304/34 I.P.C. and not under Section 302, I.P.C.. Reference may be made to Munny Khan v. State of Madhya Pradesh : 1SCR943 .
12. The result is that the appeal is partly allowed, the conviction of each of the accused-appellants Under Section 302, I.P.C. is set aside and each of the appellants is convicted under the first part of Section 304 read with Section 34, I.P.C.. In view of the change in the offence for which the accused-appellants are being punished we set aside the sentence of imprisonment for life and the fine of Rs. 500/-, and instead award each one of them a sentence of seven years rigorous imprisonment and a fine of Rs. 200/-, in default of the payment of which each one of them shall suffer imprisonment for a further period of three months.
13. It is, however, made clear that the accused-appellants are entitled to claim a set off against the term of imprisonment under Section 428, Cr. P.C. 1973 the period of detention, if any, undergone by them during the investigation, enquiry or trial of the case.