T.R. Handa, J.
1. Shri Hans Raj appellant No. 1 in Criminal Appeal No. 59 of 1983 is the father of Som Dutt appellant No. 2 of that appeal. Sarvshri Shiv Kumar Dinesh Kumar appellants in Criminal Appeal No. 60 of 1983 are also the sons of the said Shri Hans Raj. All these appellants were jointly tried for the offences falling under Section 302/34 and 307/34 I. P. C. in the Court of the Sessions Judge, Hamirpur and Una districts at Una. The learned Sessions Judge found all of them guilty and vide his judgment dated 2-7-1983 convicted them under Section 302/34 and also under Section 307/341. P. C. Later vide his separate order of even date, the learned Sessions Judge sentenced each of the appellants to undergo life imprisonment for the offence under Section 302/34 I. P. C. and to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/- for the offence under Section 307/34 I. P. C. Hans Raj appellant was further sentenced to pay a fine of Rs. 3,000/- for the offence under Section 302/34 I. P. C. Criminal Appeal No. 59 of 1983 as also Criminal Appeal No. 60 of 1983 are both directed against the said judgment of conviction and sentence recorded by the Sessions Judge. Since both these appeals arise out of the same judgment of the Sessions Judge they would stand disposed of by this common Judgment.
2. The prosecution case shortly stated is that Bir Singh deceased and his brothers Nikka Ram (pw. 7) and Kaka Ram (pw. 11) were owners to the extent of one half share in a piece of land measuring 18 Kanals 7 marlas situate in their village Ambota. Before consolidation of holdings which was effected in the year 1981, this land was bearing Khasra No. 9335/4655. During consolidation it was assigned different Khasra numbers. A part of this land measuring 5 Kanals 9 Marlas was assigned Khasra No. 4445. This particular Khasra number 4445 was coming in actual possession of the aforesaid three brothers Bir Singh deceased, Nikka Ram and Kaka Ram.
3. Bir Singh deceased and his brothers Nikka Ram and Kaka Ram owned other land also in their village Ambota apart from the land referred to above. On 5-10-1982 Bir Singh deceased and Nikka Ram (PW. 7) were ploughing their other land in their village at about 10 A.M. That other land was about two fields away from the land bearing Khasra No. 4445 and referred to above. While ploughing that other land, Bir Singh deceased and Nikka Ram saw the present appellants Sarvshri Hans Raj, Som Dutt, Shiv Kumar and Dinesh Kumar reaching the land bearing Khasra No. 4445 with a tractor, obviously with the intention to plough the same. All these four appellants were at that time duly armed, Hans Raj being armed with a Kulhari, Dinesh Kumar and Som Dutt with lathis and Shiv Kumar with a Drat. Both Bir Singh deceased and Nikka Ram (PW. 7) proceeded from the field which they were ploughing to the land where the appellants had arrived and requested the appellants not to plough the land bearing khasra No. 4445. On that Hans Raj appellant abused Bir Singh deceased and Nikka Ram. In the meanwhile P.Ws. Kamla Devi wife of Nikka Ram and Shakuntla Devi wife of Bir Singh also reached the spot and they also requested the appellants not to plough their land. After some altercation the appellants opened the attack on the above mentioned persons, namely, Bir Singh deceased, Nikka Ram, Kamla Devi and Shakuntla Devi P.Ws. All the appellants are alleged to have used their respective weapons causing multiple injuries to their victims. After some time P.Ws. Mohinder Kaur wife of Kaka Ram, Rakesh Kumar son of Kaka Ram and Kaka Ram son of Ganga Ram also reached the spot. As these persons tried to intervene they were also given beating by the appellants.
4. P.Ws. Prem Singh (PW. 5), Waryam Singh (PW. 6), Smt. Karam Kaur (PW. 19) and Gulzari are alleged to have seen the occurrence. After the occurrence PW Prem Singh went to the police station where he lodged the report on the basis of which formal F. I. R. Ex. P.L. was recorded.
5. Soon after recording the F. I. R. the police reached the spot of occurrence and after examining the injuries found on the person of the injured persons removed them to Gagret hospital. The injured persons were then referred to civil hospital Una to which place they were shifted the same day. At Civil hospital Una they were medically examined. The injuries appearing on the persons of the various injured persons may be described as follows:
Injuries found on the person of Smt. Mohindro
1. An incised wound present forehead size in left side middle part and it was skin deep.
2. Painful swelling left forearm middle part. Advised X-Ray. A.P. and lateral view.
3. A lacerated wound muscle deep 3'x 1.5' at the base of right thumb.
4. A lacerated wound 2.5' skin deep right hand palmer side at the base of the right index finger.
5. A lacerated wound with punctured right leg 1.5 c.m. below the right tibial tuberosity, advised X-Ray A.P. and lateral view.
6. A lacerated wound scalp 2 1/2' above the left ear size 2'x 1/2' into scalp deep. Advised X-Ray, A.P. and lateral view.
7. A lacerated wound just behind the left ear pinna verticle size 2 cm long skin deep.
8. An incised wound right forearm posterior side upper l/3rd part verticle size 4 cm x 1 cm x 1 cm.
9. A lacerated wound left side right forearm lower 1/3 part size 2 cm in diameter.
10. Bruise reddish in colour left side back middle part size 4' x 2'.
11. Reddish colour bruise middle part of the thigh left side lateral aspect 4' x 2'.
12. Swelling on the middle part of the scalp. Advised X-Ray, A.P. and lateral view.
13. Multiple bruises on both the buttocks were present.
The duration of the injuries was stated to be within 12 hours. The weapon used with respect to injury Nos. 1 and 8 was stated to be sharp while for other injuries it was stated to be blunt. Out of the aforesaid injuries, injuries Nos. 2 and 5 were found as grievous whereas rest of the injuries were found as simple-Injuries found on the person of Smt. Shakuntla
1. A lacerated wound bone deep curved size 4' x 1 cm middle part of the scalp. Advised X-Ray, A.P. and lateral view.
2. A lacerated wound middle part scalp 1.5' below the injury No. 1 anterior part antro-posterior in direction size 4' x 1 cm in diameter. Bone deep. Advised X-Ray.
3. A reddish bruise right shoulder superior and posterior size 5' x 1 Vi'
4. A reddish bruise lateral side left thigh size 4' in diameter.
5. A reddish bruise left leg lateral side size 6' x 3' verticle.
6. A swelling right hand dorsum. Advised X-Ray A.P. and lateral view.
7. A reddish bruise right leg lateral side upper part size 4' x 1 1/2
8. A lacerated wound anterior side left leg lower third part size 1 cm x 1/2.
The probable duration of the injuries was said to be within 12 hours and the weapon used was blunt. Out of the above stated injuries, injury No. 6 was found as grievous and the rest as simple.
Injuries found on the person of Smt. Kamla Devi
1. A lacerated wound on scalp over the frontal bone x size 2.5' x $' bone deep. Advised X-Ray. A.P. and lateral view.
2. A bruise reddish colour posterior side of the left arm 1.5' above elbow size 2.5' x 1.5'. There were multiple abrasions on the bruise linear.
3. An incised wound on left palm size 2.5' x '/f in the middle muscle deep.
4. Painful swelling in the dorsum of the left hand. Advised X-Ray, A.P. and lateral view.
5. An abrasion posterio lateral aspect of right elbow.
6. Swelling with-deformity on right wrist joint Advised X-Ray, A. P. and lateral view.
7. A reddish bruise right shoulder back size 7' x 4'.
8. A reddish bruise left side back size 7' x 1'.
9. A reddish coloured bruise right side back lower part size 3' x 1'.
10. A reddish coloured bruise left side thigh upper part lateral side, size 5' x 2'.
11. A reddish coloured bruise left knee side size 2' x 1'.
The probable duration of the injuries was within 12 hours. The kind of weapon used for injury No. 3 was sharp while for others it was blunt. Out of the. aforementioned injuries, injuries Nos. 4 and 6 were found as grievous while the other injuries were found as simple.
Injuries found on the person of Kaka Ram.
1. A lacerated wound on left parietal region size 2.5' x %' x scalp deep. Advised X-Ray skull A. P. and lateral view. Margins of the wound were irregular.
2. Swelling with deformity of right arm middle part. Advised X-Ray, A.P. and lateral view.
3. A lacerated wound right thumb sizes were irregular in shape around the thumb.
4. A punctured wound on left tibial tuberosity size J/2 cm, in diameter.
5. An incised wound middle of the left leg lateral aspect size 1' x 'A' skin deep.
The probable duration of the injuries was within 12 hours. The kind of weapon used for injury No. 5 was sharp while for others it was blunt. Injury No. 2 was found as grievous and the rest of the injuries were found as simple.
Injuries found on the person of Nikka Ram
1. Black eye (right side) with swelling of the right eye lid and reddish discolouration. Eye ball was normal.
2. Swelling and deformity right wrist and fore-arm advised X-Ray, A.P. and lateral view.
3. A lacerated wound 1' x 'A' skin deep left leg 3 1/2' above the left ankle joint.
4. Small abrasion circular in shape size 1/2 cm in diameter. Anterior aspect of right left 2' below the knee.
The probable duration of the injuries was within 12 hours. The kind of weapon used was blunt. Injury No. 2 was found as grievous and the rest as simple.
Injuries found on the person of Rakesh Kumar.
1. A lacerated wound middle of head (scalp) size 2' x >/4' scalp deep, margins irregular, scalp deep. Advised X-Ray, A.P. and lateral view.
2. Multiple abrasions on left arm size varies from !/2' x 1' in length.
The probable duration of the injuries was within 12 hours and the kind of weapon used was blunt! Injury No. 1 was found as grievous and injury No. 2 was found as simple.
6. Bir Singh deceased on his examination i at the civil hospital Una on the day of occurrence was found to have suffered the following injuries:
1. There was swelling around the left ear pinna with ill defined margin with bluish discolouration and bleeding from the left pinna was present. Dry blood on the pinna was also present. Advised X-Ray, A.P. and lateral view of skull.
2. Swelling in the left middle part of the forearm clinically fracture of the bone was present. Advised X-Ray A.P. and lateral view for confirmation.
3. Bruise with swelling left thigh middle part lateral side size 3' x 1/2 colour of the bruise was reddish brown and it was horizontal. Advised X-Ray, A. P. and lateral view.
4. Swelling around the right ear pinna more superior side with ill defined margin. Advised X-Ray of skull, A.P. and lateral view.
The doctor could not opine about the nature of these injuries as before the X-Ray examination of the deceased could be conducted, he met with his end. His dead body was subjected to postmortem examination which revealed the following injuries:
1. Swelling 11' x 9 1/2' on the left scalp extending on to the neck left lateral aspect and back.
2. Swelling 2' x 1' on the antro lateral side of left forearm in the middle fracture of radius in the middle.
3. Contusion 3' x 1 1/2' on the superior aspect of scalp 6' from the bridge of nose.
4. Contusion with swelling 2 1/2 x 1/2 on the right scalp close to pinna.
5. Three abrasions 1/2' x 1.2'' on the superior and lateral aspect of right shoulder.
6. A contusion 3' x 1/2' on the lateral aspect of left thigh in the middle one-third.
7. After completion of the investigation the appellants were made to face their trial for the offences referred to above and ultimately convicted and sentenced vide the impugned judgment.
8. The defence plea is that the entire area of land measuring 18 Kanals 7 marlas which before the consolidation proceedings was bearing Khasra No. 9355/4655 was in actual cultivating possession of Hans Raj appellant in his capacity of a tenant. This appellant was coming in possession of this land for the last more than 20 years. In fact there had been a civil litigation also-between the parties with respect to the possession of this land and on a civil suit filed by Hans Raj plaintiff against Bir Singh, Nikka Ram and Kaka Ram, the civil court had vide its judgment dated 9-12-1976 (Copy Ex.D. 1) granted a declaration that Hans Raj was in possession of the land in question as a tenant and had also issued perpetual injunction restraining the aforesaid three brothers from interfering with the settled possession of Hans Raj. Bir Singh and his brothers had preferred an appeal against this judgment before the District Judge but the same was dismissed on 15-6-1979 vide judgment, copy found at Ex. D. 3. Although this land was assigned fresh khasra numbers during consolidation proceedings it was, however, allowed to remain with its previous owners and the possession of Hans Raj was not disturbed.
9. About the actual occurrence the defence version is that Hans Raj and His two sons Som Dutt and Dinesh Kumar were ploughing this land in routine on the day of occurrence when the members of the complainant party which comprised of Bir Singh deceased, P. Ws. Nikka Ram, Kaka Ram, Rakesh Kumar, Mohinder Kaur, Shakuntla Devi and Kamla Devi armed with Lathis came there with intent to take forcible possession of the land from the appellants.' Hans Raj implored upon these members of the complainant party not to assume forcible possession but to have recourse to law but the members of the complainant party opened the attack and caused a number of injuries on the person of Hans Raj. On seeing their father being beaten in that fashion and apprehending danger to their persons, the appellants Dinesh and Som Dutt came forward, snatched the Lathis from the members of the complainant party and after snatching the Lathis from the members of the complainant party gave blows to them with such Lathis. In short, the plea of three of the appellants, namely, Hans Raj, Dinesh Kumar and Som Dutt was that they had caused injuries to the various members of the complainant party in exercise of their right of private defence. The plea of the 4th appellant Shiv Kumar was; that of alibi as according to him he was not present at the time of the occurrence.
10. The learned Sessions Judge repelled the defence plea after holding that neither the appellants were in possession of the land in question at the time of the occurrence nor had they any right of private defence. According to the learned Sessions Judge all the appellants had in pursuance of their common intention and in order to dispossess the complainant party from the disputed land, opened the attack on the members of file, complainant party and were, therefore, liable for the consequences.
11 The main contention raised on behalf of the appellants is that in the circumstances as proved on the record they had an undisputed right to defend their property as also their person and keeping in view the surrounding circumstances they were justified in inflicting the blows found on the persons of the various members of the complainant party, in exercise of that right. In this view of the matter the contention is that the appellants cannot be said to have committed any offence. Inasmuch as we find ourselves in complete agreement with this contention, we do not consider it necessary to discuss the alternative contentions raised on behalf of the appellants.
12. It is an admitted position that the occurrence took place in the land which now bears khasra No. 4445 and prior to consolidation formed part of khasra No. 9335/4655. It is also an admitted position that on the day of occurrence the appellants or at least three of them, namely, Hans Raj Dinesh Kumar and Som Dutt were the first to reach this land and they were ploughing it when the occurrence took place. It is also not disputed that when the appellants were ploughing this land, P.W. Nikka Ram and his brother Bir Singh deceased were ploughing their land which was about two fields away from the land bearing Khasra No. 4445. These two brothers along with some others then approached the appellants with a view to tell them not to plough the land bearing Khasra No. 4445 : This led to an altercation followed by an open fight.
13. In these circumstances the first point that assumes importance is as to which party was in actual and settled possession of the land in question immediately before the occurrence. Before we advert to the question of possession we may observe that Bir singh deceased and his brothers Kaka Ram and Nikka Ram P. Ws are joint owners of this land to the extent of one half share, whereas the other half share which had been declared evacuee property vested in the Government. Hans Raj appellant claims to be in possession of this entire land in the capacity of tenant only. In the jamabandi of 1968-69 (Ex.D. 3) Hans Raj has been actually shown in cultivating possession of this land as a tenant. It appears that thereafter some time in 1973-74 on the application made by Bir Singh deceased and his brothers the entry regarding possession of Hans Raj was altered and in his, place the possession of Bir Singh etc. was recorded against an area of 9 Kanals 4 marlas out of the total area of 18 kanals 7 marlas. The remaining area of 9 Kanals 3 Marlas, however, continued to be shown in the tenancy of Hans Raj. As a result of this alteration Hans Raj filed a suit in the court of the Subordinate Judge Una against Kaka Ram, Nikka Ram and Bir Singh for a declaration that he was in possession of the entire land measuring 18 Kanals 7 Marlas comprised in khasra No. 9335/4655 and that the entries were incorrect and also for issuance of a permanent injunction restraining the defendants of that suit from interfering with his possession. That suit of Hans Raj was decreed on 9-12-1976 vide judgment found at Ex.D. 1. As observed earlier the appeal against this judgment preferred by the members of the complainant party, namely, Bir Singh etc. was dismissed by the District Judge on 12-6-1979. No further appeal having been filed against the judgment of the District Judge, the same became final between the parties. There is no evidence on record to show if after the passing of this decree the possession of Hans Raj was ever disturbed or if the complainant party was ever put into possession of this land. The case of the prosecution, however, is that during consolidation Bir Singh etc. were put in possession of an area of 12 Kanals 2 Marlas out of the total area of 18 kanals 7 marlas comprised in the old khasra No. 9335/4655 and which land had been assigned khasra Nos. 4444 (3 Kanals 18 Marlas), 4445 (5 Kanals 9 Marlas) and 4446 (2 Kanals 15 Marlas) in terms of Jamabandi of 1980-81 found at Ex.P.T./2. In this connection it may be observed that the entries with respect to possession of Bir Singh etc. in this Jamabandi were changed on 1-4-1982 i.e. before the occurrence and the change was made in pursuance of the decree of the civil court to which reference has already been made. In fact in view of the decree of the civil court the entries in favour of Bir Singh etc. could not have been recorded in the jamabandi. These entries appear to have been recorded either under some mistake or on account of mischief and were corrected immediately when the civil court decree was brought to the notice of the revenue people. In any case there is no' material on record to suggest if, when and how Hans Raj was dispossessed from this land and Bir Singh etc. were put into possession thereof Apart from this it may be observed that even as per contention of Bir Singh etc. raised in the civil suit referred to above they were in actual possession of only 9 Kanals 4 Marlas of the land comprised in khasra No. 9335/4655 and the rest of the area of 9 Kanals 3 Marlas was in the tenancy of Hans Raj. It being so it cannot be appreciated as to how during the consolidation Bir Singh etc. came to be recorded in citivating possession of an area of 12 Kanals 2 Marlas out of the total area of 18 Kanals 7 Marlas. These entries found at Ex.P.T. and relied upon by the prosecution are obviously wrong and deserve no value.
14. It is true that the judgment Ex.D. 1 delivered by the civil court is not conclusive to establish the possession of Hans Raj. At the same time this judgment does provide an instance where the right to be in possession was claimed by Hans Raj as against Bir Singh etc. and was recognized. This judgment is, therefore, admissible under Section 13 of the Evidence Act and does afford a presumptive proof of possession in favour of Hans Raj appellant. The existence of this judgment in itself having some probative value in determining the question of possession, it creates a paramount duty on the part of the prosecution to displace the findings recorded therein in favour of Hans Raj. We, however, apart from the oral evidence of some interested witnesses find no cogent evidence which could be regarded as sufficient to displace the findings of the civil court recorded in the above judgment. The tenancy rights in land, these days are more valuable than even the proprietary rights, is a fact of which the court can take judicial notice. No tenant is, therefore, expected to give away or surrender his tenancy rights for nothing and more especially when such rights stand recognized by a court of competent jurisdiction. Strong presumption, therefore, arises in favour of the continuity of the tenancy and possession of Hans Raj. In the absence of any cogent evidence to show if, when and how Hans Raj was dispossessed from this land or his tenancy was terminated, we feel inclined in recording the finding that the possession over the land in dispute at the time of the occurrence was that of Hans Raj appellant and his possession was settled.
15. We may now advert to the background in which the occurrence in question took place. It appears that Bir Singh etc. were keen to get possession of the land in question by fair means or foul. It was with this object that they had earlier in 1973-74 got the entries regarding possession with respect to the land in question changed in their favour. Obviously their intention was to secure forcible possession on the strength of those changed entries. Hans Raj appellant, however, challenged those entries by filing the civil suit and obtained a decree of declaration and injunction. Bir Singh etc. thus having failed in their initial effort, appear to have made another effort during the course of consolidation proceedings when they succeeded in getting their names once again recorded in the column of possession in the new Khasra numbers allotted for the old Khasra No. 9335/4655. Hans Raj appellant once again did not allow Bir Singh etc. to succeed in their designs and he got the necessary correction made on the strength of the decree of the civil court. Bir Singh etc. then appear to have considered yet another mode of achieving their object and this was by filing a suit for declaration and injunction. This suit was actually filed by them on 21-6-1982 as is apparent from the copy of the plaint Ex.P.S. produced on the record. This suit was filed by Bir Singh etc. against Hans Raj appellant for a declaration to the effect that the plaintiffs Bir Singh etc. were owners in possession of 12 Kanals 2 Marlas of land comprised of Khasra Nos. 4444,4445 and 4446 all of which had been carved out of the old Khasra. No. 9335/4655. Along with this suit they had also filed an application under O. 39 Rr. 1 and 2, C P. C. praying for issue of an ad interim injunction restraining Hans Raj appellant from interfering with their possession. That application, however, was not allowed. It appears that in order to give support to their suit for declaration filed vide plaint Ex.P.S., Bir Singh etc. had decided to assume forcible possession of the land in dispute. It was in these circumstances that they appear to have encroached the land in question which at that time was being ploughed by the appellants. The past history and the circumstances discussed above as also the probabilities of the case clearly indicate that the members of the complainant party had on the day of occurrence proceeded to the land in dispute in order to forcibly dispossess the appellants from such land. The common object of the members of the complainant party was, therefore, anything but peaceful. In view of the past dealings between the parties the members of the complainant party i.e. Bir Singh etc. could certainly not expect that the appellants would surrender their long settled possession on their mere request. It is, therefore, reasonable to assume that Bir Singh etc. while proceeding to the land in question for assuming its possession must have prepared themselves to meet any resistance.
16. Coming next to the question whether the appellants had the right of private defence or not, we may observe at the very outset that Hans Raj appellant too had suffered a number of injuries in the course of the occurrence. This fact finds mention in the F.I.R. Ex.P.L. itself and is not disputed. The number and nature of injuries suffered by Hans Raj finds mention in the statement of Dr. J. S. Banyal, the then Medical Officer in charge Primary Health Centre, Gagret who appeared as D.W. 1. According to this witness the following injuries were found on the person of Hans Raj who was examined on 6-10-1982 at 9 A.M. -
1. A lacerated wound 3 cm x 1 cm on the left parietal region. It was scalp deep.
2. A lacerated wound 2 cm x 1/2 cm on the right parietal region and scalp deep.
3. A reddish 3 cm x 1 cm contusion on the left shoulder.
4. A reddish 6 cm x 5 cm contusion on the back on the right side lower part of the chest.
5. There was painful swelling of the left arm and multiple contusions reddish in colour. X-Ray of the left forearm was advised.
6. Complains pain on both shoulders.
7. Complained pain in the lumber region. The prosecution has failed to give a satisfactory account of the injuries suffered by Hans Raj. None of the witnesses appearing for the prosecution and who claim to have witnessed the occurrence deposed with respect to the injuries suffered by Hans Raj. It is only Rakesh Kumar (PW. 10) who has made a reference on this point. This witness stated that he reached the spot later in the company of his mother Mohinder Kaur and his father Kaka Ram. On reaching the spot when he found Hans Raj beating Bir Singh, he lifted a Lathi which was lying by the side of Bir Singh and with that he gave a blow to Hans Raj. This statement of Rakesh Kumar, however, neither inspires confidence nor explains the injuries actually found on the person of Hans Raj. In the first place a single blow alleged to have been given by Rakesh Kumar could not have resulted in the seven injuries found on the person of Hans Raj. Obviously Hans Raj had been attacked in some other manner. Secondly Mohinder Kaur who is alleged to have accompanied Rakesh kumar to the spot specifically betrayed her knowledge with respect to the injuries suffered by Hans Raj. In the absence of any explanation from the side of prosecution with respect to the manner in which Hans Raj suffered the various injuries found on his person, we have no option but to accept the defence version that Hans Raj was the first to be attacked by the members of the complainant party who as earlier observed must have duly armed themselves before proceeding to the spot to achieve their object of assuming forcible possession of the land from the appellants. In these circumstances the appellants had not only the genuine apprehension that they would be assaulted in a manner likely to result in grievous hurts to them but they had actually been so assaulted. The appellants had thus certainly acquired the right of private defence both of person as also of property.
17. The question that next falls for consideration is whether in causing the injuries actually found on the persons of the various members of the complainant party the appellants had exceeded their right of private defence. The quantum and nature of the force to be used in exercise of the right of private defence as also the duration for which force can be used in exercise of such right would depend upon the peculiar circumstances of each individual case. No rigid limits can be fixed on the right of private defence in that sense. A person would normally be said to exceed his right of private defence only when on a consideration of all the relevant circumstances of the case, a verdict can be returned that the quantum and nature of the force used by him was totally disproportionate to the force actually required to ward off the apprehension which occasioned the right of private defence or when the force continued to be used even after the apprehension giving rise to the right had ceased to exist. The number and nature of injuries inflicted by an accused in exercise of the right of his private defence, though a relevant consideration, would not by itself be conclusive on the point whether the accused had exceeded the right of defence. Again, while appreciating the proportion between the force actually used in exercise of the right and the force considered appropriate in the circumstances of a particular ease, the court must look into the matter from the point of view of the accused and not that of a by-stander. It would be unfair to expect of the accused placed in the situation as he is, that he would assess the nature of the attack to be defended from moment to moment and modulate his defence accordingly.
18. Bearing the aforesaid principles concerning the right of private defence in view, we feel no hesitation in coming to the conclusion that on the peculiar facts and circumstances of this case, the appellants cannot be said to have exceeded their right of private defence. The facts of this case show that the appellants in this case were made to face an attack by an armed party comprising of seven persons. Though it has been alleged by most of the prosecution witnesses that to start with only four persons of the complainant party, namely, Bir Singh deceased, Nikka Ram, Smt. Shakuntla Devi and Smt. Kamla Devi had reached the place of occurrence, it can be safely concluded from the deposition of Smt. Mohinder Kaur (PW. 9) that in fact all the seven members of the complainant party had proceeded to the spot together. This witness in her cross examination admitted that on reaching the spot she asked Hans Raj not to plough the land. This admission by this witness by itself would suggest that the fight had not yet started when Smt. Mohinder Kaur accompanied by her husband Kaka Ram and her son Rakesh Kumar reached the spot. It thus looks safe to conclude that all the seven members of the complainant party, namely, Bir Singh deceased, Nikka Ram, Rakesh Kumar, Mohinder Kaur, Kaka Ram, Shakuntla and Kamla had proceeded to the spot together. As earlier observed the common object of these persons was to forcibly dispossess the appellants and hence it is only reasonable to presume that they were all duly armed. Not only that, the attack was actually opened by the members of the complainant party who inflicted as many as seven blows on the person of Hans Raj. This conclusion is justified from the enquiries found on the person of Hans Raj and for which no satisfactory explanation has I been furnished by the prosecution. In these [circumstances the appellants had the right of defending themselves by use of force and in exercise of that right they could cause any harm to their assailants including death (see section 1001. P.C.). In exercise of their right of private defence and in order to secure their safety the appellants were entitled to ensure that their assailants were disabled and for that purpose they could certainly employ the requisite force. We find that in view of the circumstances as discussed above, the injuries inflicted by the appellants on their assailants cannot be said to be excessive especially when there is no reliable material on record to suggest if the appellants continued the use of force even after the assailants had been disabled. In this connection we may observe that none of the prosecution witnesses, namely, Prem Singh (PW. 5), Waryam Singh (PW. 6), Nikka Ram (PW. 7), Smt. Shakuntla Devi (PW. 8), Smt. Mohinder Kaur (PW. 9), Rakesh- Kumar (PW. 10) or Shri Kaka Ram (PW. 11) deposed if any of the appellants inflicted any blow on any of the injured persons after the latter had fallen down on receipt of the blows. We find mention about this fact only in the statements of Smt Karam Kaur (PW. 19), and Smt Kamla Devi (P.W. 20). With respect of Karam Kaur (P. W. 19) her name does not figure in the F. I. R. and we have our doubts if she was present on the spot. We may observe that she is the daughter-in-law of Waryam Singh (PW. 6) whose name does find mention in the F. I. R. as having witnessed the occurrence and in case Karam Kaur was there, her name must have also figured therein. The other witness Kamla made a general statement that after the injured persons fell down they were given beating as maize corn are beaten with Lathis. No other witness has come out with such a version and it is not considered safe to rely upon the testimony of this witness. The safe conclusion, therefore, is that the appellants did not inflict any blow on their victims after the latter had been disabled 'on account of the injuries suffered by them.
19. We are thus of the view that whatever injuries were inflicted by the appellants on their victims were inflicted by them in exercise of their right of private defence and that they cannot be said to have exceeded that right. The appellants, therefore, cannot be said to have committed any offence in view of the provisions of Section 96,1. P. C.
20. In view of what has been stated above we accept both these appeals, set aside the judgment and order of the Sessions Judge convicting and sentencing the appellants as above and acquit all of them of the offences charged against them. Appellants Hans Raj, Som Dutt, Dinesh Kumar being in custody, are directed to be released forthwith if not required in any other case. The fourth appellant Shiv kumar is on Bail, his bail bond and surety bond are discharged.