K.D. Sharma, J.
1. This is an appeal filed by Mohinder Singh against the judgment of the Sessions Judge, Sri Ganganagar, dated 13-3 1975, by which the appellant has been convicted of an offence under Section 304, Part I, I.P.C. and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/- in default of payment of fine to further suffer simple imprisonment for two months for causing the death of Butta Singh.
2. The prosecution case against the appellant was that on 22-3 1974 at about 5 p.m. he along with Gurdeep Singh visited the house of Butta Singh. Gurdeep Singh informed the mother of Butta Singh that Butta Singh's mother-in-law had come to village Karadwala after undergoing an eye-operation and Butta Singh and his wife should meet her Butta Singh's mother then prepared tea for Butta Singh. Mohinder Singh, Gurdeep Singh and herself. All of them took tea in the house. Thereafter Mohinder Singh and Butta Singh went together out of the house and Gurdeep Singh began to talk to Jangir Kuar, mother of Butta Singh. After a short-while he also went away from there. Jangir Kaur saw all of them going towards the house of Mohinder Singh. Jangir Kaur waited for the return of her son Butta Singh for some time but Butta Singh did not come back to his house. At about 8.30 p m. she heard cries of Butta Singh. On hearing the screams of her son. Jangir Kaur rushed to the house of Mohinder Singh and saw that Butta Singh was lying on a cot of Mohinder Singh inside his house and Mohinder Singh was causing injuries to him with a short thick stick, commonly known as 'Sotta' in vernacular. Butta Singh was raising a hue and cry. Jangir Kaur on seeing her son being beaten by the appellant cried loudly 'do not beat, do not beat', but the appellant turned deaf ears to her cries and threatened her with dire consequences in case she continued to raise an outcry. Out of fear, Jangir Kaur ran away from there and approached her son-in-law Arjun Singh at village Kardwala which lies at a distance of about 1&Frac12; miles from her village. She met Arjun Singh and related the whole of the incident to him. She disclosed to him that Mohinder Singh was inflicting blows on the person of Butta Singh. On hearing the news, Arjun Singh asked Jangir Kaur to go back to her village as he was immediately reaching there along with some persons Thereupon Jangir Kaur returned to her house. After a short while Arjun Singh came to her and informed her that Butta Singh had been killed. Then Arjun Singh went to police station, Sadulshahar, for making a first information report of the occurrence The incident was alleged to have occurred on account of personal grudge having been entertained by the appellant against the deceased over a dispute relating to boundaries of their agricultural lands. The Station House Officer, Sadulshahar, recorded the first information report made to him by Arjun Singh and registered a case under Section 302, I.P.C. on its basis. The Station House Officer, Bhanwar Lal immediately rushed to the place of occurrence and reached there at about 3 a.m. He did not find Mohinder Singh and his family in their house. He went in search of the appellant but could not arrest him. So he returned to the place of the incident, prepared Panchnau a Ex. P. 3, and site-plan Ex. P. 4 with site inspection memo Ex. P. 4A. He took photos of the place of occurrence and recovered a pair of shoes of the deceased lying in a 'Kotha' of Mohinder Singh. On the next day, the Station House Officer arrested the appellant at bus-stand, Satipura At the time of arrest, the Station House Officer saw blood-stains on the right leg of the appellant. He scratched the dried blood with a blade and took it into his possession, vide memo Ex. P. 11. The appellant, while under police custody, supplied an information to the Station House Officer that he had concealed a short thick stick, i.e. 'Sotti' in a heap of fodder lying in his thatched house. The Station House Officer recorded the above information in a memo Ex. P. 12 and recovered the short thick stick at the instance of the appellant and in consequence of his above information from the heap of fodder vide memo of recovery Ex. P. 18. The dead body of the deceased was sent to Hospital for postmortem examination. Dr. Bahadur Singh, PW 9, conducted an autopsy over the dead body and found the following eleven injuries on it:
1. lacerated wound 1' x1&Frac2;' x 1&Frac;' middle of forehead upward downward over the scalp hair and forehead junction;
2. lacerated wound 3/4' x 1&Frac3;' x bone deep on the body of right mandible upward downwards with fracture in the middle;
3. contusion 7' x 1' obliquely on the front of chest from right nipple to the epigastrium;
4. contusion 10' x 1' upward downward right side of chest lateral to right nipple upto the right hypochondrium;
5. contusion 9' x 1' upward downward medial to injury No. 4 and along it;
6. contusion 5' x 1' over and along 8th rib backside right half;
7. contusion 4' x 1' along with 9th rib back side to right half;
8. contusion 4' x 1' along the 10th rib right side of back;
9. contusion 4' x 1' medial aspect of left thigh lower part transversely;
10. contusion 3' x 1' medial aspect of left thigh middle of the thigh transversely;
11. contusion 5' x 1' anterior aspect of right thigh above knee joint.
Upon dissection of the dead body middle lobe of his right lung was found ruptured. In the abdomen, the base of left lobe was also ruptured. Thoracic cavity was found full of coagulated blood. In the opinion of the Medical Officer, the death was caused by rupture of vital organs, i.e. right lung and liver leading to haemorrhage, and shock due to thoracic injuries. The Doctor further opined that Butta Singh died within 6 10 hours prior to the post-mortem examination. The external injuries were ante mortem in nature and were caused by blunt Weapon. The Doctor found semi digested food material also in the stomach of the deceased. The Station House Officer collected other necessary evidence and eventually put up a challan against Mohinder Singh appellant under Section 302, I.P.C. in the court of the Munsiff cum Judicial Magistrate, Hanumangarh. The learned Magistrate committed the appellant to the court of Sessions Judge, Sri Ganganagar, for trial for the offence of murder. The Sessions Judge tried the appellant for the aforesaid offence and found him guilty of culpable homicide not amounting to murder punishable under Section 304, Part I, I.P.C. He, therefore, acquitted the appellant of the offence of murder punishable under Section 302, I.P.C. and convicted and sentenced him for lesser offence as stated above. Aggrieved by his conviction and sentence the appellant has come up in appeal to this Court.
3. I have carefully gone through the record and heard Mr. Than Chand Mehta for the appellant and Dr. S.S Bhardawat for the State. The first contention put forward by Mr. Than Chand Mehta, learned Counsel for the appellant, is that there is reliable evidence on the record to show that the deceased committed an assault on the appellant's wife with the intention of committing rape upon her. According to the learned Counsel, the deceased willingly accompanied the appellant to the latter's house and both of them took wine and their meals together and thereafter lay on the two cots lying in a 'Kotha' of the appellant. At about 10 p.m. the deceased went out of the 'Kotha, in the open-courtyard where the appellant's wife was preparing herself to go to bed. The deceased took no time in catching hold of her and throwing her on her cot The appellant's wife raised a hue and cry when the deceased lay upon her and attempted to have sexual intercourse with her by removing her 'Salwar.' However, her cries attracted the appellant to the spot. On seeing his wife facing a real danger of being ravished the appellant picked up a short thick stick from the courtyard and inflicted several blows with it in quick succession on the body of the deceased, as a result of which the latter died an instant death. In support of his above contention, Mr. Than Chand Mehta placed reliance on the testimony of the wife of the appellant and on several other circumstances established in the case, e.g. recovery of blood-stained soil, 'Takla' and 'Pagari' from the courtyard and the recovery of a pair of shoes of the deceased from the Kotha' of the appellant showing that the appellant had gone bare footed out of the 'Kotha', Dr. S.S. Bhandawat appearing on behalf of the State, on the other hand, contended that the story of seeing the deceased lying on the appellant's wife and trying to commit rape upon her was invented by the appellant to escape the consequences of his act of killing the deceased. It was further argued by him that the appellant did not raise a hue and cry on seeing his wife being indecently assaulted by the deceased and did not lodge a complaint or a report about any such incident with any person in the village or with the police soon after the incident but, on the other hand, there is evidence on the record that he ran away from there along with his wife and children and could not be arrested till noon on the next day. According to Dr. S.S. Bhandawat, the prosecution has been able to substantiate its case beyond reasonable shadow of doubt by adducing reliable evidence of Jangir Kaur. mother of the deceased, who had seen the appellant hitting her son with a short thick stick.
4. I have given my anxious consideration to the rival contentions. The pertinent question that arises for determination in this case is whether the action of the appellant is covered by clause thirdly of Section 100, I.P.C. and he is entitled to acquittal. Before dealing with the question of right of private defence of person, I think it necessary to first examine the prosecution evidence with a view to ascertaining whether it has established affirmatively that the appellant did any act which rendered him liable for the offence of culpable homicide not amounting to murder punishable under first part of Section 304, I.P.C. because the question of right of private defence can arise only when the prosecution has succeeded in proving what would, but for the exercise of the right of private defence, be the offence. The only evidence led by the prosecution to, prove the connection of the appellant with the crime is of the mother of the deceased, namely, Jangir Kaur, PW 3. Jangir Kaur claimed to be an eye witness to the occurrence. Her evidence at the trial was that the heard the cries of her son Butta Singh at about 80 p.m. On hearing his cries, she rushed to the appellant's house and kept herself standing near its wall. From there she saw Butta Singh lying on the cot of Mohinder Singh appellant who was inflicting blows on her son with a short thick stick. On seeing her son beaten, she asked Mohinder Singh to have mercy upon him and not to strike further blows.. Mohinder Singh resented her intervention, abused her and threatened her with dire consequences, if she did not go away from there. Out of fear, Jangir Kaur had to run away from there. She went to village Kardwala to inform her son-in-law Arjun Singh about the incident, which she had seen with her own eyes. She met Arjun Singh at his house and related the whole of the incident to him. Arjun Singh asked her to go back to her house, and wait for him. Thereupon, she returned from village Kardwala. After about ten minutes Arjun Singh came to her house and informed her that Butta Singh had been killed. Mst. Jangir Kaur began to weep and Arjun Singh went away to lodge a report with the police. The trial court has relied upon the above version given by Jangir Kaur, and has acted upon her evidence in convicting the appellant. I have gone through her evidence critically. To my mind, Jangir Kaur was not an eye witness to the occurrence. She could not see the appellant striking blows on the body of Butta Singh with a stick as her house, from where she professed to have come on hearing cries of her son, lies at a distance of about 400 yards from the place of occurrence as is evident from the site-plan arid the-site inspection mamo Ex. P. 4 and P. 4A respectively. Bhanwar Lal, PW 11 also Stated in his cross-examination that the distance between the houses of, Butta Singh and the appellant was about '400 yards. There were eleven injuries on the body of Butta Singh as is apparent from the statement of the Medical Office/, who conducted the post-mortem examination over the dead body; The prosecution case is that the appellant struck all the blows on the-body of the deceased with a short tick stick quick succession. If the statement of Jangir Kaur. is accepted at its face value, she must have taken some time its covering the distance of about 400 yards from her house. It is not believable that Jangir 'Kaur on hearing the cries of her son and after covering the distance of about 400 yards from her house to the place of occurrence could see the appellant striking blows on the body of Butta Singh. By the time she had reached the place of occurrence upon hearing the cries of her son e.g. 'being beaten, 'being beaten the occurrence must have been over, because the assailant would have taken a very little time in striking eleven blows on the body of Butta Singh in quick Succession. There is another circumstance which lends support to my view that Jangir Kaur put forward a false claim to be an eye-witness to the actual beating given to her son by the appellant. The circumstance is that she did not raise any hue and cry in the village after having seen her son Butta Singh being beaten by the appellant. If she had seen the appellant causing injuries to her son. she would have surely cried aloud to attract the presence of persons living in the village or in the vicinity. Her reticence throws considerable doubt on her presence at the spot at the time of beating given to her son. Another circumstance which renders her testimony unreliable is that she could not see the recurrence in the night which was dark. In her cross-examination she frankly admitted that the night was dark and that she saw the appellant causing injuries to her son in the light of a lantern which was burning near the cot in the courtyard. On this point, she was confronted with and contradicted by her police statement Ex. D. 2 wherein she omitted to state that there was a lantern burning near the cot in the courtyard. When confronted, she could not afford any explanation for this omission appearing in her statement Ex D 2 relating to presence of light of lantern at the time of the occurrence. Hence, her evidence that there was sufficient light in the courtyard to enable her to see the appellant inflicting injuries on the body of her son from a place outside the 'Dhani cannot be relied upon.
5. If the evidence of Jangir Kaur is excluded from consideration, there is no other direct evidence to connect the appellant with the incident except his own statement supported by the testimony of his wife Nasib Kaur, DWl. The statement of the appellant at the trial was that on the day of occurrence he brought Butta Singh to his house wherein both of them took wine and food. After food, both lay themselves on two co s lying in the appellant's 'Kotha' At about 10 p.m. the appellant heard cries of his wife. Upon hearing the cries, he came out of his 'Kotha' in the courtyard and saw Butta Singh lying on his wife on a cot and trying to take off her 'Salwa' with an intention to commit rape upon her. On seeing his wife in danger of being raped, he picked up a short thick stick lying in the courtyard and with it caused several injuries on Butta Singh in quick succession. The appellant disengaged his wife from the grip of the deceased, who became unconscious after receiving the injuries on his body. The appellant then rushed to the mother of the deceased and related the whole of the incident to her. Jangir Kaur accompanied him to the spot and found her son dead She went away from there saving that she would return after collecting other persons. The appellant did not go to the police station to lodge a report about the incident because the dead body was lying in his house and there was no other person to look after his wife and children. The above statement made by the appellant at the trial is fully corroborated by the evidence of his wife Nasib Kaur in all material particulars. Nasib Kaur also stated in her deposition that at about 10 p.m., she finished domestic work and came to her cot for sleeping. At that time Butta Singh approached her, pushed her on the cot, then lay on her and tried to take off her Salwar She raised an outcry which attracted her husband to the place of the occurrence Her husband then picked up a short stick and inflicted several blows on the body of Butta Singh to disengage her from the latter's grip. There is no reason to disbelieve her testimony, especially when it has not been shaken in cross-examination at all. The trial court did not assign any good reason for discarding her evidence. The only reason given by the trial court is that she being closely related to the appellant was expected to give false evidence to save her husband from the consequence of his act. The trial court committed an error in ignoring her evidence on the mere ground that she is a close relative of the appellant. Her evidence should have been accepted or rejected on its merits after close scrutiny. Upon careful review of her evidence, I am of the view that she is a truthful witness. It will not be out of place to mention that there are certain facts & circumstances established on the record which also lend assurance to the version given out by Nasib Kaur. First circumstance is that a pair of shoes belonging to the deceased was recovered by the investigating officer at the time of site inspection from the Kotha' of the appellant. The shoes were lying on the ground between the two cots. This fact clearly indicated that the deceased was bare footed when he came out of the Kotha in the courtyard where two cots were lying one for children of the appellant and the other for his wife. If the deceased was attacked when he was leaving the house of the appellant, the shoes would have been on his feet. The contention of the learned Counsel for the appellant that the deceased deliberately left his shoes inside the Kotha' and went outside barefooted in order to avoid any disturbance that might be caused to the appellant's sleep by walking with shoes to the courtyard, is not untenable particularly in the absence of any evidence from the side of the prosecution on this point. Another peculiar circumstance of considerable importance is that no blood stained earth was found inside the Kotha' of the appellant. The absence of blood stains on the floor of he 'Kotha or on any articulating or kept in it leads to an inference that the injuries, were not caused to the deceased inside the Kotha '. The trial court went wrong in coming to a conclusion that the deceased was first beaten inside the 'Kotha' and when he ran a way from there in the courtyard, he was again between b/ the appellant. There was no basis for arriving at such a finding. The trial court was not empowered to base its conclusions on surmises and conjectures in the absence of any material on the record to support them. To put it into nutshell, it may be observed that the trial court cannot be permitted to construct altogether a new case, especially when it was not the case of either party that the deceased was first beaten inside the 'Kotha' and then was again hit in the courtyard by the appellant.
6. Consequently, I have no hesitation in holding that the appellant struck the deceased a number of blows in the exercise of his right of private defence laid down in clause thirdly to Section 100, I.P.C.
7. The next question that requires consideration is whether the appellant has exceeded the right of private defence which accrued to him on account of an indecent assault made-on his wife by the deceased with an intention to commit rape upon her. It is undoubtedly true that the right of private defence provided under Section 100 clause thirdly, I.P.C.. is not an unrestricted right. It is a right qualified by the provisions of Section 99, I.P.C.. Dr. Bhandawat appearing on behalf of the State strenuously urged before me that even if the right of private defence of person accrued to the appellant, the latter caused more harm than was necessary to the deceased by inflicting as many as eleven blows on different parts of his body. The above contention has no force. The appellant discovered all of a sudden that the deceased, who was his friend had committed the breach of faith by trying to commit rape on his wife in his house. His state of mind could very well be imagined at that time. If he inflicted several blows with a short stick on the body of the deceased in quick succession upon finding his wife in a real danger of being raped, he could not be said to have exceeded the right of private defence, especially when there is evidence of Nasib Kaur on the record that she could disengage herself from the grip of Butta Singh only after the latter had received seven or eight injuries on his body at the hands of the appellant. Hence, taking all the facts and circumstances into consideration, I am of the view that the appellant has discharged the burden of proving the existence of circumstances bringing has case within the general exception laid down in clause thirdly to Section 100, I.P.C.. Under the law, he is not required to prove his plea of right of private defence of person beyond reasonable doubt. What is required from him is to discharge the burden by making out a prima-facie case. As stated earlier, there is preponderance of probabilities on the basis of the evidence on the record in favour of his plea of private defence. His conviction and sentence cannot, therefore, be upheld and maintained.
8. The result is that I accept the appeal filed by Mohinder Singh, set aside his conviction and sentence under Section 304, Part I, I.P.C. and acquit him of the aforesaid offence. Mohinder Singh is in Jail. He shall be released forthwith, if not required in connection with some other case.