K.D. Sharma, J.
1. This is an appeal filed by Nena Ram and Bhura Ram against the judgment of the Sessions Judge, Merta, dated September 5 1974, by which Nena Ram was convicted under Section 304, part II and Section 324. 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 rigorous imprisonment for six months on the first count and on the second to undergo simple imprisonment for three months. Both the substantive sentences were however, ordered to run concurrently. By this very judgment, Bhura Ram appellant was convicted under Section 323, I.P.C. and sentenced to undergo simple imprisonment for one month.
2. The prosecution case against appellants was as follows: On 14th October, 1973, at about 7.30 p. m. Panna Ram was returning to his house after grazing his cattle in the jungle His son Chhotu Ram was looking after his cattle in his enclosure situated in village Sidla. At that time Panna Ram and Chhotu Ram heard cries of Mangu Ram, who was Panna Rams another son. On hearing the cries both of them ran to Mangu Ram's house which was situated at some distance from Panna Ram's house. As soon as they entered the house, they saw Nena Ram and Bhura Ram appellants beating Mangu Ram in the later's courtyard in front of the kitchen Nena Ram had a rapier (Gupti) in his hand, while Bhura Ram was armed with a 'Jeli'. The Panna Ram and Chhotu Ram protested against the highhanded action of the appellants and tried to intervene but they also were beaten by the appellants. Bhura Ram inflicted blows on the body of Panna Ram with the 'Jeli'. The blows fell on the little finger of his right hand and on the face near his eye. Nena Ram struck a blow on the left side of the chest of Chhotu Ram with the rapier. Panna Ram and Chhotu Ram raised a hue and cry and came out of the courtyard. They were rescued by Gordhan, Purkha Ram and their females and, their after, the other inhabitants of the village assembled there. Mangu Ram received a serious blow on the right abdominal region along with other injuries on his body, which were bleeding profusely. He was immediately removed to hospital in a track by Panna Ram and Chhotu Ram. The incident occurred because a camel of the appellants entered the field of Mangu Ram and Mangu Ram went to the appellants to lodge a protest on that score. A report of this incident was lodged was with the police at Police Station, Merta Road, by Panna Ram and Chhotu Ram on 15th October, 1973, at 2 30 a.m. As the Station House Officer had gone out of the police station, the Head Constable recorded the first information report in the daily-diary and sent the injured persons to Merta-City Hospital for medical examination. As no Doctor was available at Merta-City Hospital, the injured persons were taken to the Primary Health Centre, Nokha Chandawatan, where they were medically examined by Dr. Nand Kishore who found following injuries on their persons:
1. Incised wound &Frac34;' X&Frac14;' X1' on the front of left chest on the fourth intercostal space just lateral to mid-line. The wound was deep in transverse direction, extending towards lateral side;
2. Incised wound &Frac12;' X&Frac14;' on the right side of the chest at the level of ninth rib. The direction of depth was medially upwards;
3. Incised wound 3/4' X' X1' on the left side of chest just lateral to the nipple;
4. Abrasion 1/2' X1/4' on the right side of abdomen just above the iliac crest;
5. incised wound 1/4' X1/10' X1/10' on the left side of the chest on the lowest rib at mid axillary line.
3. All these injuries were simple and had been caused by a sharp weapon, except injury No. 4, which was caused by blunt weapon. The duration of the injuries was between 12 to 24 hours.
1. abrasion 1 1/2' X1/4' on the right zygomatic region of the face;
2. contusion 2 1/2' X1 1/2' on the right zygomatic region medial to injury No. 1, extending below the right eye;
3. abrasion 1/2' X1/2' on the right forehead, 1 1/2' above the light eye brow;
4. abrasion 1' X1/10' on the left frontal region of the scalp near the hair line. All these injuries were simple and caused by a blunt weapon.
1. incised wound 1/2' X1/4' X1/4' on the upper part of left side of chest below the clavical bone in mid-line.
4. The injury was simple and was caused by a sharp weapon. The duration of the injury was between 12 to 24 hours.
5. Mangu Ram was admitted to the hospital as an indoor patient for treatment of his injuries. On 16th October 1973, at 1.15 p.m. his condition deteriorated. He developed acute distension of abdomen, and so Dr. Nand Kishore recorded his dying declaration Ex. P. 12. On the next day Mangu Ram breathed his last at about 9.30 a.m. Dr. Nand Kishore informed the Station House Officer, Merta Road, about Mangu Ram's death vide Ex. P. 8. The Station House Officer upon receiving the information about the death of Mangu Ram registered a criminal case under Section 302, I.P.C. and took-up usual investigation. He rushed to Primary Health Centre, Nokha Chandawatan, and examined the dead body of Manga Ram. He prepared a Panchnama and a memo of the injuries and took blood-stained clothes of the deceased into his possession. The dead body was handed over to the Doctor for post-mortem examination. Apart from external injuries mentioned above the Doctor, upon autopsy over the dead body, found that the brain along with its membranes was congested and there was a stab-wound 1/4' X1/4' on the lateral wall of descending colon corresponding to the outer injury No. 5 Peritoneum was congested and inflamed and faecal matter had mixed with blood in peritoneum cavity. In the opinion of the Doctor, death occurred due to shock and peritonitis caused by abdominal stab injury reaching the large intestines. According to the Doctor, injury No. 5 found on the body of Mangu Ram was sufficient in the ordinary course of nature to cause his death The Investigating Officer went to the spot on 18th October, 1973, prepared a site plan and site-inspection memo and noticed blood-stains on the ground in the 'Pathshal' of Panna Ram, where Mangu Ram was brought after the occurrence. The Station House Officer took blood stained earth, cot and mattresses (Gudras) into his possession from the 'Pathshal' vide memo of seizure Ex. P 6. Chhotu Ram injured also produced one shirt, which was taken into possession by the Station House Officer, vide memo Ex. P, 2. The Station House Officer then arrested the appellants. At the time of arrest he noticed injuries on the neck and left arm of Nena Ram appellant He found one injury on the back of Bhura Ram also. A rapier was recovered by the Station House Officer at the instance of Nena Ram appellant, vide memo of recovery Ex. P. 18. Likewise a 'Jeli' was recovered at the instance of Bhura Ram vide memo of recovery Ex. P. 21. Later on, the blood-stained earth, clothes, of Mangu Ram and the rapier were sent for chemical examination in a sealed condition The Chemical Examiner did not find any blood-stains on the rapier, although Mangu Ram's clothes and the sample of earth were found to have been stained with human blood. The Station House Officer collected other necessary evidence in the case and, eventually, submitted a charge-sheet under Section 302, I.P.C. against both the appellants in the court of the Additional Munsiff Magistrate. Merta, who, upon finding a prima-facie case exclusively triable by the Court of Session, committed the appellants to the court of the Session Judge, Merta, for trial under Sections 323, 324 and 302/34 I.P.C.
6. The Sessions Judge tried the appellants after framing charges against Nena Ram and Section 302, 324 and 323/34, I.P.C. and against Bhura Ram under Section 302/34, 323 and 324/34, I.P.C. Upon conclusion of the trial, the Sessions Judge convicted and sentenced both the appellants in the manner indicated above. Aggrieved by their convictions & sentences, the appellants have preferred this appeal.
7. I have carefully gone through the record and heard Mr. M.R. Bhansali, learned Counsel for both the appellants and Mr. K.C. Bhandari, Public Prosecutor, for the State. It has been strenuously urged before me by Mr. M.R. Bhansali learned Counsel for the appellants, that the injuries were caused to the deceased, his father and brother by the appellants in exercise of the right of private defence of person and the trial court overlooked the importance of the provision of law relating to the right of private defence and committed an error is not giving the appellants the benefit of the exception, although the facts and the circumstances of the case clearly indicated that the appellants could have reasonably entertained imminent danger to their life & limb from the side of the deceased & his party. In support of his above contention, Mr. M.R. Bhansali, relied upon certain conclusions arrived at by the trial Judge himself in his judgment after sifting and scanning the evidence carefully with a view to ascertaining the circumstances under which the appellants acted. Apart from this, reliance was further placed on certain facts established on the record, which, according to him, rendered it likely that the appellants must have acted in self defence. The facts and circumstances relied upon by the learned Counsel are as follows:
1. both the appellants sustained injuries on their bodies at the time of occurrence and the prosecution could not afford any explanation for their preference.
2. the eye-witnesses were not in a position to state who started the fight and how it was started;
3. it transpires from the prosecution evidence itself that the incident did not occur in the house of Mangu Ram as alleged by Panna Ram and Chhotu Ram in the first information report;
4. the evidence led by the prosecution itself disclosed that it was the deceased who had gone to the house of the appellants to lodge a protest against the damage caused by their camel in his field.
Mr. K.C. Bhandari, Public Prosecutor, on the other hand, argued that the appellants have not been able to establish a case for the exercise of the right of private defence According to his submission, the mere fact that the appellants sustained simple injuries on their bodies does not necessarily lead to an inference that they might have acted in self defence. He further urged that mere omission on the part of the prosecution to explain the injuries found on the accused cannot be treated as a circumstance favourable to the appellants. His further contention is that the evidence of Panna Ram and Chhotu Ram conclusively established the guilt of the appellants, as both these witnesses claimed to have seen them causing injuries to Mangu Ram deceased with a rapier and a 'Jeli' in the common courtyard belonging to them and Panna Ram.
8. I have given my anxious consideration to the rival contentions Before dealing with the contentions raised in this appeal in the light of the evidence and the materials brought on the record, I would like to observe that Nena Ram appellant pleaded before the trial Judge that on 14th October, 1973 at about 7.30 p.m. he along with Banshi Naik came to his house from his field and began to prepare tea. Meanwhile, Mangu, deceased accompanied by Panna Ram, Bhagu Ram, Chhotu Ram, Budha Ram and Teja Ram came to his house and hurried filthy abuses upon him. They asked him to come out of the house. As soon as he came out, Mangu Ram, Bhagu Ram, and Panna Ram assaulted him. Mangu Ram, deceased, caused his neck to be brought in the grip of the forks of his 'Jeli' and threw him on the ground. Panna Ram inflicted a lathi blow on his left shoulder. Then the deceased lay upon him and pressed his body. Panna Ram hit him with a lathi on his left shoulder Bhagu Ram also hit him with a lathi on his shoulder and then felled him down. He raised a hue and cry which attracted Bhura Ram to the place of occurrence. On seeing Bhura, Bhagu, Budha and Chhotu gave him a beating. Meanwhile, Nena Ram freed himself from the grip of the deceased and rushed to the police station to make a report. He lodged a report with the police about the incident and, thereafter, he did not know what happened. The other appellant namely, Bhura Ram, corroborated the plea taken by Nena Ram in the trial Court From the pleas set-up by the appellants, it appears that they had not come out with the plea of private-defence by stating that they had caused injuries to the deceased in the exercise of their right of private defence, but even without raising such a plea in clear and definite terms they are entitled to show from the prosecution evidence and the other materials on the record that they acted in private defence.
9. It is, therefore, necessary to find out on the evidence and the materials on the record whether the appellants had acted in the exercise of the right of private defence and whether they are entitled to the benefit of it It is not disputed before me that in the first information report the occurrence was alleged to have taken place in the house of Mangu, deceased. The house of the deceased Mangu Ram is shown at No. 9 in the site-plan Ex. P. 3 Later on, the prosecution shifted the place of occurrence 10 the open courtyard in front of the house of Panna Ram and Nena Ram, appellant. In the site-inspection memo Ex. P. 14 the exact place, where the occurrence was alleged to have taken place, is shown at No. 2 in the site plan. The prosecution could not give any reasonable explanation for this improvement on its version relating to the place of occurrence. Panna Ram was the maker of the first information report. He was cross-examined on this point and confronted with portion Ke to Khe of his first information report Ex. P. 1, wherein he is alleged to have seen Mangu Ram being beaten by the two appellants inside his courtyard in in front of his kitchen. When confronted he merely denied to have made the above statement to the police. He was further confronted with and contradicted by portion Ge to Ghe of his report Ex. P. 1, wherein he clearly stated that his wife and the wives of his sons along with Gordhan and Purkha Ram Jats had rescued him. When confronted with this portion he denied to have made the above statement to the police. Likewise, Chhotu, who also was the author of the first information report, when confronted with the aforesaid portions of Ex. P. 1 denied to have made the above statements to the police. In the absence of any explanation for shifting the place of occurrence from the side of the makers of the first information report, it may be safely held that the prosecution has suppressed real facts and made improvements on the earliest version given out in the first information report about the place of occurrence and the persons who had come to intervene.
10. There is another circumstance which throws considerable doubt on the subsection prosecution version that the occurrence took place at an open place in front of the house of Pinna Ram. The circumstance is that the Investigating Officer did not notice any blood stains on the ground at place '2' shown in the site-plan. If the occurrence had taken place at a place marked '2' in the site-plan, there would have been blood on the ground as it is alleged by the prosecution that the deceased fell down at the place of occurrence and his wound bled profusely. The question then arises for determination is at which place the 'Marpeet' took place Panna Ram admitted in his examination-in-chief that Mangu had disclosed to him that he was beaten because he had gone to lodge a protest against the damage caused to his 'Bajra' crop by the camel of Nena Ram Similarly, Chhotu Ram admitted in his examination-in-chief that on being questioned why he had been beaten, Mangu replied that he was beaten because he had lodged a protest against the damage caused to his crop in his field by the cattle of Nena Ram appellant From the referred to above admission of there two prosecution witnesses, it is evident that it was the deceased who had gone to the house of Nena Ram appellants for lodging a protest against the damage cause to his crops of 'Bajra' by the latter's camel. Hence, the plea of the appellants that the occurrence took place at their house appears to be well-founded and the evidence of the prosecution witnesses that the 'Marpeet' took place in the open 'Chowk' in front of the house of Panna Ram does not inspire confidence.
11. Now it remains to be seen whether the circumstances bringing the case within general exception of right of private-preference of person do exist or not in this case Upon review of the entire evidence, I have come to the conclusion that the plea of private defence raised by appellants is probabilised by the following facts and circumstances established on the record.
1. As already stated, the first circumstance is that it was Mangu deceased, who had gone to the house of appellant to lodge a protest against some damage caused to his 'Bajra' crop by Nena Ram's camel. The possibility of Panna Ram and Chhotu Ram prosecution witnesses having gone with him cannot be ruled out, because these persons claimed to have reached the place of occurrence and sustained injuries on their bodies at the hands of the appellants:
2. There is reliable evidence of Dr. Nand Kishore Arora, D.W. 3 on the record that Nena Ram had one lacerated wound &Frac12;'X&Frac12;' X&Frac12;' at the front of the neck, one abrasion &Frac12;'X&Frac12;' on his left arm and another abrasion &Frac12;' X&Frac12;', on the back of left scapular region, at the time of his medical examination on 15th October 1973. All these injuries were simple and caused by a blunt-weapon and their duration was 24 hours. When cross-examined by the Public Prosecution, Dr. Nand Kishore Arora definitely stated that injury No. 1, i. e. lacerated wound at the front of the neck of Nena Ram could not possibly be inflicted by hands and nails or by a lathi but it could be caused by a 'Jeli'. Hence, the plea of Nena Ram appellant that he was first attacked by Mangu Ram with a 'Jeli' with the result that the front portion of his neck got entangled in between the forks of the 'Jeli' and he fell on the ground finds corroboration to a great extent from the medical evidence. If the evidence of the eye-witnesses that Bhura Ram appellant had a Jeli' in his hand is taken to be true, then there is no explanation from the side of the prosecution how Nena Ram had received such and injury on the front side of his neck as could probably be caused by a Jeli';
3. The third circumstance is that it is not the case of the prosecution that Bhura Ram appellant used to live joint with his brother Nena Ram at the latter's house on the day of the occurrence. From a bare look into the site-inspection memo Ex. P. 14 it appears that Bhura Ram used to live separate in a house shown at No. 12 in the site plan along with his brother Buxa. The prosecution could not lead any evidence to show that when the deceased had gone to the house of Nena Ram for lodging a protest against the damage caused to his crop by the latter's camel, Bhura Ram appellant was present in the house of his brother Nena Ram. Hence, the plea of Nena Ram appellant that when he was first attacked by the deceased with a 'Jeli', he raised a hue and cry, which attracted his brother Bhuraram to the place of occurrence from the neighbouring house appears to be probable in the absence of any material on the record that the two appellants knew it before hand that the deceased would come to their house for lodging a protest and that they would beat him. It is highly probable that on hearing the cries of his brother Nena Ram, Bhura Ram ran out of his house and or seeing Nena Ram being beaten by the deceased, snatched 'Jeli' from the latter's hand and caused injuries with it to him. Panna Ram and Chhotu Ram.
4. Another circumstance which renders it likely that Nena Ram appellant might have acted in self-defence is the failure on the part of the prosecution to explain the injuries found on his body. It is not a case of that type where on account of a number of persons participating in a mutual fight the prosecution witnesses might not be in a position to notice precisely who caused the injuries on the accused In the present case, according to the prosecution, the two appellants were the assailants and the deceased was the victim of assault when the eye-witnesses had come to the place of occurrence. In this state of affairs, it was easy for the eye-witnesses to notice precisely who caused the injuries on Nena Ram appellant. Hence the omission by the prosecution to afford any explanation for the presence of injuries on the body of Nena Ram appellant should be treated as a circumstance in the latter's favour. It is no doubt true that the mere fact that there were some injuries on the person of Nena Ram appellant does not necessarily lead to an inference that he must have acted in self-defence but in view of the referred-to above surrounding circumstances of the case, which raise the presumption that he might have acted in self-defence; omission on the part of the prosecution to account for the injuries found on his person must be treated as a favourable circumstance to the defence.
5. Over and above all, as pointed out earlier, the prosecution shifted the place of occurrence from the house of Mangu Ram deceased to an open place in front of the house of Panna Ram and Nena Ram, appellant, without any reasonable explanation for such material change. This circumstance also tells heavily upon the prosecution case and renders it likely that the deceased along with his father Panna Ram and brother Chhotu Ram had gone to the house of Nena Ram and had begun the attack on the latter with a 'Jeli'. In these circumstances, i' Nena Ram and his brother Bhura Ram, who, in all probability, had come to the spot to rescue Nena Ram, used force in repelling the attack and caused injuries to the deceased and his father and brother, they may safely be held to have acted in exercise of their right of private defence of person.
12. It will not be out of place to mention that the trial Judge, after careful scrutiny of the entire evidence, did not rule out the possibility that the injuries found on the body of Nena Ram must have been received by him in some scuffle with Mangu Ram and that Bhura Ram might have reached the place of occurrence, upon hearing the alarm raised by Nena Ram and Mangu Ram. The following observations made by the learned Sessions Judge in his judgment are quoted in extenso:
The circumstances show that Mangu alone must have initially gone to the house of Nena and must have protested. It is extremely likely that Mangu might have made some sort of assault upon Nena resulting in the injuries found on his person. At this Nena and Mangu must have raised alarm and accused Bhoora must have reached the scene of occurrence and mast have joined his brother Nena in defending against the assault. It appears that at this stage Chhotu and Panna must have reached the scene of occurrence. The probability is that Nena, Mangu and Bhoora must have come out of the house of Nena when Chhotu and Panna reached the spot. This and this alone explains the presence of accused Bhoora who lived separately from Nena and had no other reason to join in the alleged assault.
The learned Sessions Judge further observed upon evidence as follows:
I, therefore, find it proved that after Mangu had initially protested with Nena, and may have assaulted Nena in the process, Bhura came to the scene of occurrence to the rescue of his brother and then Naina and Bhura assaulted Manguram and inflicted injuries on the person of Mangu and deposed to by Chhotu P.W. 1 and Panna P.W. 3.
Having arrived at the above conclusion, upon sifting and scanning prosecution evidence, the Sessions Judge committed an error in not holding that the appellants acted in the exercise of the right of private-defence and they were entitled to the benefit of it
13. The next question that requires consideration is whether the appellants inflected more harm than it was necessary to inflict for the purpose of their defence. At the outset, I may observe that Chhoturam had an incised wound &Frac12;'x&Frac12;'x&Frac14;' on the upper part of left side of chest. The injury was simple and caused by a sharp-edged weapon. Likewise, Pannaram had four injuries on his body, which were simple in nature and caused by a blunt weapon Out of these injuries three were abrasions of small sizes, one on the face, second on right fore head, third on the left frontal region of the scalp near the hair line. The fourth injury was a contusion 3&Frac12;'x1&Frac12;' on the right zygomatic region medial to injury No. 1 extending below the right eye. These injuries found on the body of Chhoturam and that of Pannaram did not indicate that more harm was inflicted by the appellants than was necessary; to inflict for the purpose of their defence. The deceased, on the other hand, had Jive injuries on his body, as mentioned above. Dr. Nand Kishore who examined the deceased and later on, performed the post-mortem examination over his dead body, definitely stated in his cross-examination that injuries Nos. 1, 2, 3 & 4 on the person of Mangu had no connection with his death. The remaining injury No. 5, which was incised wound &Frac14;'x1/10'x1/10' on the left side of the chest of the lowest rib at mid axillary line, could be caused in the opinion of the Doctor, by a rapier (Gupti). Upon cross-examination, Dr. Nand Kishore improved his version by staling that injury No. 5 on the body of the deceased was penetrating and not an incised wound. He further admitted that he did not state in Ex. 27 that peritonitis layers had been stabbed orcut. On a court question, he further stated that he had mentioned cutting of the outer wall of the colon and this presupposes that peritoneum had been cut. Upon being further cross examined he clearly admitted that in the present case peritoneum had become septic and that is why Manguram expired. He further opined that the sepsis of this wound could have been prevented only by operation and not otherwise. He further admitted that when the deceased was first brought to him, he could not diagnose that the intestines were ruptured but on the very day when the deceased developed acute pain and distension of the abdomen, he thought that the intestines were ruptured. On 16th October, 1973, he advised the relations of the patient to remove him to a better doubtful whether injury No. 5 had caused the death of Mangu Ram, because death occurred on account of the wound having become later on septic and the sepsis could have been prevented by operation, which could not be performed by Nand Kishore Soni as there was no facility for surgery in the Primary Health Centre. The evidence of Panna Ram and Chhotu Ram that Nena Ram inflicted two blows with the rapier on the body of Mangu Ram after the latter had fallen down cannot be believed, as they had been confronted with and contradicted by their previous statements before the police, where in they did not state this fact for reasons best known to them. When confronted, they merely stated that had disclosed this fact to the police but they did not know why it was was not written. Hence, there is no evidence on the record that the two appellants acted in a brutal manner or took undue advantage of the situation by causing further blows to Mangu Ram, deceased, after he had fallen on the ground. Taking all these facts into consideration and having regard to the opinion of Dr. Nand Kishore Soni, P.W. 9 that the other four injuries on the body of Mangu Ram went simple in nature and had no connection with his death, I do not feel inclined to hold that the appellants had exceeded the right of private defence and caused more harm to the deceased than it was necessary to inflict in the circumstances of the case.
14. The result is that the appeal filed by Nenaram and Bhuraram is accepted, and their convictions and sentences are set aside Nenaram is acquitted of the offences punishable under Section 304 part II, and 324, I.P.C. while Bhuraram is acquitted of the offence punishable under Section 323, I.P.C. Bhuraram is on bail He need not surrender to his bail bonds, which are hereby cancelled. Accused Nenaram is in jail. He shall be released forthwith, if not required in connection with some other case. As the appeal filed by Nenaram has been accepted and he is acquit ted of both the charges framed against him by the trial court, his application under Section 427 read with Section 482, Cr. P.C. for directing the sentence passed against him in some previous case to run concurrently with the sentences imposed on him in this case has become infructuous and is hereby dismissed.