Rajasthan High Court - Jaipur
Bhikha And Ors. vs State Of Rajasthan on 9 March, 1990
Equivalent citations: 1990(2)WLN84
Author: A.K. Mathur
Bench: A.K. Mathur
JUDGMENT R.S. Verma, J.
1. Learned Addl. Sessions Judge No. 2, Jodhpur, vide his judgment dated 10-11-1976 rendered in Sessions Case No 54/74 has convicted appellant Bhika of an offence Under Section 302, IPC and has sentenced him to under go imprisonment for life. He has convicted Bhika of offence Under Section 148 IPC and has sentenced him to rigorous imprisonment for nine months and to pay a fine of Rs. 50/- and in default to undergo further rigorous imprisonment for two months. He has also convicted him of offences Under Sections 325 and 323 read with 149, IPC but has refrained from passing any separate sentences on these counts.
2. Appellants Mohabbat Singh, Ganpat Singh, Jethia, Gunia Rama, Bena Ram, Aasu Ram, Deva Kam Gayad, Jai Ram and Ugia have been convicted by the same judgment for offence Under Section 148, IPC and each one of them has been sentenced to under go rigorous imprisonment for six months and to pay a fine of Rs. 10/- & in default to under go further imprison-ment for one month. Each one of them has been convicted of an offence Under Section 325 read with 149, IPC and has been sentenced to undergo imprisonment for one year and to pay a fine of Rs. 20/-and in default, to undergo further imprisonment for one month. Each one of them has been further convicted of an offence Under Section 323 read with 149, IPC but no separate sentence has been passed on this count. Aggrieved they have come in appeal.
3. Briefly stated the prosecution story is that Smt. Mira P.W. 1 had three sons, viz. P.W. 3 Umar Dan, P.W. 8 Bhanwar Dan and Jodh Dan (deceased). P.W. 2 Hukam Dan is son of P.W. 8 Bhanwar Dan while P.W. 4 Babu Dan P.W. 9 Mohan Dan are sons of Jodh Dan. P.W. 10 Chhagani is wife of aforesaid Jodh Dan. It is alleged that Umar Dan Jodh Dan and Bhanwar Dan were in possession of Khasra No. 323 situated on the outskirts of village Netra and on the date of the incident, viz., 7-7-1974 a crop of Bajri, Month and Gwar was standing there upon. That day at about 3 p.m, Bhanwar Dan, Umar Dan and Jodh Dan were carrying out 'Ninan' operations in the said field. P.W. 1 Smt. Mira was standing at that time in front of her Dhani, which is in the vicinity of this field. P.W. 2 Hukam Dan was grazing his cattle in a near by field of Kesa and Gangia. All of a sudden, the appellants named above along with some other persons entered the field where Bhanwar Dan, Umar and Jodh Dan were carrying out 'Ninan' operations. Mohabbat Singh was armed with a gun while Ganpat was armed with a sword The other appellants were armed with lathis. The appellants wanted to take possession of aforesaid field forcibly. The appellants bad with them their flock of sheep as well, which they drove in the Bajari crop of the said field. Seeing the appellants committing trespass into the field with their flock of sheep, Jodh Dan shouted and requested P.W. 1 Smt. Mira to bring his camera, so that he may photograph the appellants committing trespass in the field. At this Smt. Mira brought out a camera from her Dhani and went to the field and handed over the camera to Jodh Dan. Jodh Dan then started taking some photographs of the appellants. At this, a gun shot was heard and the appellants started belabouring Jodh Dan. Bhanwar Dan, Umar Dan and Smt. Mira. Seeing this, P.W. 2 Hukam Dan, P.W. 4 Babu Dan, P.W. 9 Mohau Dan and P.W. 10 Chhagani rushed to the filed in question; at which the appellants started belabouring them also. The appellants gave indiscriminate beating to Jodh Dan and his aforesaid companions and the incident was witnessed by P.W. 5 Deepa Ram, P.W. 6 Kesa Ram, P.W. 7 Ganga Ram and P.W. 13 Sukhdeo, P.W. 2 Hukam Dan after receiving the beating, went to police station, Mathania, and lodged a written report of the incident Ex. P. 1. On the basis of report Ex. P. 1, a formal report Ex. P. 46 was recorded at 9.30 p.m. by Devi Lal, S.H.O. (PW 25) for offences Under Sections 447, 147, 148, 149, 427 and 323 IPC. The prosecution story, further, is that the camera of Jodh Dan was snatched away by one of the appellants during the assault. Jodh Dan fell down at the spot due to his injuries and eventually dies as a result thereof.
4. Devi Lal after recording the FIR, proceeded to the spot and the next morning i.e. 8-7-74, he prepared a site plan Ex. P. 47 and its legend Ex. P. 40. He examined the dead body and prepared a memo Ex. P. 41 the same day. He also prepared a Panchnama Ex. P. 42 in this regard and recovered blood stained and control soil vide Ex. memos P. 43 and P. 44.
5. On 8-7-74, Dr. Shanti Gopal Sinha P.W. 27, examined the injured persons Hukam Dan, Chhagan Kanwar, Mohan, Umar Dan, and Smt. Mira. He prepared injury report Ex. P. 61 in respect of Hukum Dan, who had one simple injury by a blunt weapon on his left forearm, he prepared Ex. P. 62 in respect of Babu Dan, who had a simple injury on his left thigh. He prepared Ex. P. 63 in respect of Smt. Chhagani, who had two simple injuries by a blunt object on her person. He prepared Ex. P. 64 in respect of Bhanwar Dan, who had three simple injuries with blunt object on his person. He prepared Ex. P. 64 in respect of Umar Dan, who had five simple injuries with blunt object on his person. His injury No. 1 was suspected to be grievous and it appears that a X-ray examination with regard to this injury was made on 15-7-1974 and a multiple fracture of scapula was found vide Ex. P. 60 He found one injury on the person of Smt. Mira by a blunt object vide report Ex. P. 6
6. Dr. Sinha conducted postmortem examination of Jodh Dan the same day at about 3 15 p.m. He found that post mortem lividity was present on both the lips and finger nails as well as nails of toes. The eyes were closed and pupils were dilated He found following external injuries on his person:
(i) Condition of subject--stout emactrated, decomposed & C. Mock-rate height-weight and built cadre-bresic present at both hands and feet. P.M. lividity present on the both lips and all the finger-nails & hand and feet;
(2) Lacerated wound 'sign of bleeding) 21/2" x 1" x skull deep hori-zental in shape on the left frontal region of scalp 1" above from the left eye brow to upwards there is a depressed fracture on the left side of frontal hone (2"x 1") of skull. There is a blood clots present between the skull bone and membrance. Laceration of membrance, brain and effusion of blood on the surface of the brain under the seat of the injury;
(3) Lacerated wound (sign of bleeding) 1/2" x 1/4" bone on the posterior on the middle aspect of left index finger on its proxem I phalynx. There is a compound comminuted fracture of the middle of the proximal phalynx of left index finger under the seat of the injury;
(4) Lacerated wound (sign of bleeding) 2-1/2" x 1/2" x bone (Vertically) on the posterior aspect of Rt. forearm 3" blow of the elbow joint;
(5) Lacerated wound (sign of bleeding) 1" x 1/2 x muscle deep on the antromedial aspect of right leg 5" below from the knee joint;
(6) Bruise (red in colour) vertically 4" x 2-1/2" on the antrolateral aspect of Rt. Thigh 4-1/2" above from the knee joint;
(7) Bruise (red in colour transverse in shape) 4 1/2" x 2-1/2 on the Rt. side of back along with the space of 5th to 6th ribs; Sign of bleeding from month, both nostrils and both care." All the injuries were found to be ante-mortem in nature. In the opinion of the doctor, the cause of death of Jodh Dan was due to coma as a result of laceration of brain, caused by injury No. 1. which was sufficient in the ordinary course of brain, cause death. Dr. Sinha prepared post-mortem examination Ex. P. 56 in this regard.
7. The Investigating Officer made certain recoveries during the course of investigation and arrested the accused persons. He examined certain witnesses. After due investigation, in all 18 persons were put up for trial.
8 Initially Shri D.C Hajela, the then Add). Sessions Judge framed charges against all the accused persons and commenced trial. How ever, the trial could not proceed further and then Addl. Sessions Judge Sbri Pyare-mohan Bagarhatta framed fresh charges against the accused persons. Alt the accused persons pleaded not guilty and claimed trial. Eventually, Shri J K. Dasani, Addl, completed the trial. Sessions Judge No. 1, Jodbpur.
9. At the trial, the prosecution examined P.W. 1 Smt. Mira, P.W. 2 Hukam Dan, P.W. 3 Umar Dan, P.W. 4 Babu Dan, P.W. 5 Deepa Ram, P.W. 6 Kesar Ram, P.W. 7 Ganga Ram, P.W. 8 Bhanwar Dan, P.W. 9 Mohan Dan, P.W. 10 Chhagani, P.W. 11 Karan Singh, P.W. 12 Shyamgiri, P.W. 13 Sukhdeo, P.W. 14 Laxminarain, P.W. 15 Rani Dan P.W. 16 Sunder Lai Sharda. P.W. 17 Jasu Dan, P.W. 18 Laxman Dan, P.W. 19 Shivdan Singh, P.W. 20 Bhanwar Lai, P.W. 21 Kamvilas, P.W. 22 Arjun Singh, P.W. 23 Bheru Dan, P.W. 24 Sayar Singh P.W. 25 Devi Lai, P.W. 26 Dr. Prakash Dayal, P.W. 27 Dr. Shanti Gopal Sinha, P.W. 28 Hari Singh, P.W. 29 Shambhu Dan and P.W. 30 Ladu Ram. It appears that Dr. Prakash Dayal was again examined as P.W. 31. Prosecution, further, examined P.W. 32 and closed its evidence. In their statements recorded Under Section 313 of the Criminal Procedure Code, the accused persons denied the prosecution story and their plea was that the land in dispute was is possession of Gayad since 1968 and Gayad used to keep his cattle on the land. Stacks of manure (evades) of Gayad used to be kept on the land. The land was never in possession of the Rawals, namely, the complainant side-On the day of incident, Gayad Ram was assaulied by Bhanwar Dan, Umar Dan and Jodh Dun by kasis; upon which, Bhika and others ran to his rescue. In this incident, harain, Bhika and Gayad received injuries. The defence examined three witnesses in support of its case, namely, P.W. 1 Jor Singh, DW 2 Bhopal Singh and DW 3 Sujan Singh.
10. Upon conclusion of the trial, the learned Addl. Sessions Judge convicted the appellants as stated above, He, how ever, acquitted six other accused persons, namely, Sarv Shri Narain, Nariairal, Suja, Kanwaria, Mohan and Nanaga.
11. To complete the narration, we may, here, briefly summarise the findings recorded by the learned Addl. Sessions Judge. He did not find the story of the prosecution reliable when it alleged that Jodh Dan, Bhanwar Dan and Umar Dan were in possession of the disputed land and that the accused-appellants had committed trespass in the filed in possession of Jodh Dan, Umar Dan and Bhanwar Dan or that they had caused mischief by driving their cattle in the disputed field, thus damaging the crop of Bhanwar Dan, Umar Dan and Jodh Dan. He disbelieved the prosecution story that the camera belonging to Jodh Dan was robbed or looted during the incident. He was, how ever, of the view that the convicted accused appellants formed an unlawful assembly with the intention of causing simple and grievous hurt to Jodh Dan, Bhanwar Dan and Umar Dan and it was an individual act of Bhika to cause death of Jodh Dan by assaulting him. Upon such findings, he acquitted all the accused persons of charges Under Sections 447, 427 and 394 read with 149 IPC, but convicted and sentenced them as stated above.
12. In the present appeal, learned Counsel for the appellants contends that the prosecution has failed to prove the true genesis of the incident. In this incident, Narain, Bhika and Gayad had received injuries at the hands of Jodh Dan and his companions. These injuries have not been explained and this renders the prosecution story doubtful and it appears that the incident did not take place in the manner suggested by the prosecution. He next contends that in this case, though the FIR was lodged by eye witness, it was never alleged that Bhika had caused the fatal injury to Jodh Dan, How ever, at the trial the prosecution witnesses have tried to bolster up their story so far as accused Bhika is concerned and he has been falsely implicated for committing murder of Jodh Dan by specifically assigning the fatal injury to Bhika and, therefore, the prosecution evidence deserves to be discarded. It is next submitted that appellants Aasu, Bena and Jethia were not named in the FIR and the evidence pertaining to their participation is discrepant and unreliable Over-implication in this case, cannot be ruled out altogether as even the learned trial Judge has found that as many as six persons were wrongly roped in and had to be acquitted. It is lastly urged that the accused appellants were in possession of the disputed field and Jodh Dan and his companions were the aggressors and what ever injuries were caused by the appellants, were caused in exercise of right of private defence of person and property and as such, they were not guilty of any offence.
13. Learned P.P. supports the prosecution case and vehemetly oppose the appeal.
14. We have bestowed our careful consideration to the rival contentions and have perused the record. At the outset, we regret to find that the learned trial Judge has not properly marshalled the evidence in this case with the result that his judgment is desultory and disjoined. He his not discussed the genesis of the prosecution case nor has he discussed the effect of mission of Bhika's name in the FIR as the person, who had caused the fatal injury on the person of the deceased Jodh Dan. He has also not cared to examine the effect of the omission of the names of Aasu, Bena and Jethia on. The FIR. He has not carefully considered the effect of the non-explanation of the injuries found on the persons of accused Narain, Bhika and Gayad. He has, thus, ignored vital infirmities of the prosecution story. We, thus, find that the judgment rendered in this case is not at all upto mark and does not redound to the credit of an officer of the rank of Addl. Sessions Judge.
15. We may here observe that the only independent witnesses of the incident, namely, P.W. 5 Deepa Ram, P.W. 6 Kesar Ram, P.W. 7 Ganga Ram and P.W. 13 Sukhdeo have not supported the prosecution story at all They were subjected to cross-examination by the learned P.P., but nothing has come in their evidence, which may go to support the prosecution case. This, leaves us with the partisan evidence of P.W. 1 Smt. Mira, P.W. 2 Hukam Dan, P.W. 4 Babu Dan, P.W. 8 Bhanwar Dan, P.W. 9 Mohan Dan and P.W. 10 Chhagani. The difficulty with the evidence of these witnesses is that it is highly infirm in nature. Learned trial court has not placed reliance upon the testimony of these witnesses, when they say that the accused-appellants had committed criminal trespass in the disputed field, the learned trial court has. not believed these witnesses when these witnesses allege that the disputed field was in possessions of Bhanwar Dan, Umar Dan and Jodh Dan; the learned trial court has also not placed reliance upon their evidence when they say that the appellants drove their cattle in the aforesaid field and caused damage to the Bajari crop. Likewise, the learned trial court has not placed reliance upon the testimony of these witnesses when they allege that Jodh Dan's camera had been looted by the appellants. Evidence of such infirm and partisan witnesses requires some sort of corroboration to bi acted upon and it would be extremely unsafe to rely upon their uncorroborated testimony. Testimony of one infirm witness may not be used to corroborate testimony of another infirm witness.
16. The Investigating Officer is said to have recovered weapons of offences from the accused-appellants but we find that such weapons were; either not sent to the State Forensic Laboratory or in case, they were so sent, no report has teen received in connection there with As many as 69 documents were exhibited by the prosecution but report of Forensic Labaratory has not been placed upon the record of the learned trial court nor any such report has been placed on record before us. Thus, the recoveries made. in this case do not afford any corroboration at all.
17 There is one more difficulty with the testiony of these prosecution witnesses. In the FIR Ex. P. 1 lodged soon after the occurrence by P.W. 2 Hukam Dan, an eye witnesses, it was not stated that Bhika appellant bad. caused the fatal blow to Jodh Dan. Ex. P. 1 is a detailed document and describes the incident in some details. If Bhika Ram had reaily caused the fatal blow to Jodh Dan. it is but natural that this fact would have found mention in the FIR. But it is not so and the prosecution witness, one and all, have uniformly adopted the stand that Bhika Ram gave the fatal blow to deceased Jodh Dan. It is surprising that when so many persons were assaulting Jodh Dan, Umar Dan and Bhanwar Dan, the witnesses could have minutely observed the part played by Bhika Ram. As regard P.W. 1 Smt. Mira, the tained trial court has observed that she bad a weak eye sight, hence it was doubtful, if she could have seen what specific part was played by each. accused. P.W. 2 Hukam Dan was the person, who bad lodged the FIR yer be did not ascribe the specific fatal injury to Bhila in the the FIR and improved upon his earliest version. P.W. 3 Umar Dan initially stated that Jodh Dan was assaulted by Rama, Bhika, Jay Ram, Gayad and Ugia and he himself got injured hence could not see fdlds dgka yxh fdlus dgka&dgka ekjh Then, he added that Bhika had given the blow on the temple of Jodh Dan In cross-examination, he admits eq>s ?;ku ugh] igyh pksV tks/knku ds fdlu ekjks This admission goes to show that really he had not seen as to who had given the first blow to Jodh Dan. P.W. 4 Babu Dan is child witness. He had made an ominous statement that Bhika. Ugia, Jai Ram and Gayad were assaulting his father. He does not state that Bhika gave the specific blow on temple of Jodh Dan Like wise, Bhanwar Dan speaks of joint assault by Jai Ram Bhika, Ugai, Gayad on Jodh Dan and does not claim that the fatal blow had been given by Bhika. Similar is the testimony of P.W. 9 Mohan Dan. He too does not speak of the fatal injury on the person of Jodh Dan as having been caused by Bhika. So also is the testimony of P.W. 10 Chhagani. Thus, it is not established satisfactorily that Bhika had dealt the fatal blow on the temple of deceased Johh Dan.
18. It is also signficant that the names of appellants Jethia, Bena Ram and Aasu Ram were not mentioned in the FIR. This goes to show that the prosecution witnesses have considerably improved up the original version given in the FIR, when they ascribe the specific role to Bhika and also name of Jethia, Bena Ram and Aasu Ram being members of the alleged unlawful assembly. To the extent of these improvements, the prosecution version is unreliable and unworthy of credence. At any rate, it is not safe to act upon such evidence, particularly when the evidence is partisan and infirm Here, we may briefly refer to evidence of alleged participation by these three appellants in the occurrence. As stated already Ex. P. 1 does not at all mention their participation in the incident. It does not even men-lion their presence at the spot. P.W. 1 Smt. Mira does not state that Letha and Aasu had accompanied the other accused persons. She of course, mention Bena as one of the assailants. Later on she adds the name of Aasu and states that he along with Bhika had exhorted the other accused persons. Still later she states that Bena and Aasu had assaulted Bbanwar Dan. Still further states that Rama bad given the camera to Jetha. Hukam Dan has alleged that Jetha Bena and Aasu had come armed with other accused persons and had lathis in their hands. He adds that Jetha with other's had beaten Umar Dan and Bena and Aasu had beaten Bhanwar Dan along with others. He admitted that be might not have named these assailants in the FIR. He has not given any explanation for non-mention of their names, Umar Dan does not support Smt. Mira's version that Aasu and Bena assaulted him He too states that Rama had given camera to Jetha. He claims that he was beaten by Jetha with others. Babu Dan has made omnibus statement that Umar Dan was assaulted by Jetha along with others and Bhanwar Din was assaulted by Aasu and Bena with others. Bhanwar Dan has stated that he was assaulted by Deva Ran, Bena Ram and Aasu Ram but states that he did not know who assaulted Umar Dan. Mohan Dan has stated that Bhanwar Dan was assaulted by Aasu, Bena, Deva, Kanwaria and Ganesh and Umar Dan was assaulted by Saja, Jetha, Ganpat, Moabite Singh and Naria Chhagani does not name Jetha as one of the assailants of Umar Dan. She does not name Bena as an assailant on Bhanwar Dan Thus, we find that this evidence is of omnibus nature and as discrepant. Omission of the names of Jetha, Aasu and Bena in the FIR creates serious doubt about the veracity of the prosecution version that these per-sons were also amongst assailants. Thus, we find that the prosecution has failed to establish beyond shadow of reasonable doubt that Bhika had dealt a fatal blow to Jodh Dan. Likewise, we find that the prosecution has failed to establish successfully that Jetha, Bena Ram and Aasu Ram had participated in the alleged assault.
19. One important aspect of this case is that during the incident, accused Narain, Bhika and Gayad had also received injuries. According to Dr. Sinha, he examined Narain on 8-7-1974 at 12 noon and found a swelling with pain and tenderness 1" x 1-1/4" in diameter on the left side of the face starting from the angle of the mandible to down-wards. The injury was simple in nature and the duration of the injury was between 6 to 22 hours. He prepared Ex. D. 20 in this regard. The same day, at about 11.30 a.m, he examined appellant Bhika and found following injuries on his person:
(1) Bruise red in colour 3" x 2" on the posterior aspect on Right Thigh on its upper parts 13" above from the knee joint;
(2) Bruise red in colour 5" x 1-1/2" on the left side of back on its lower part."
Both the injuries were simple and bad been caused by blunt object within 15 to 20 hours of the examination. Dr. Shina prepared Ex. D. 21 in this regard He examined Gayad Ram accused the same day and found following injuries on his person:
(1) Lacerated wound (sign of bleeding, blood clots present) 3" x 1" upto bone on the antroposterior aspect of Right Palm and dorass of the Right hand starting 1/2" above from the wrist joint to down, wards upto proxymal end of the phalynx of Right thumb;
(2) Incised would (clear out. margins) sign of bleeding blood clots, present 1-1/2" x 1/2" x 1/2" deep on the mid of the Right scapula region 1" below from the mid of shoulder;
(3) Lacerated wound (blood, clots present) 2/2" x 1/4" x skin deep on the medial aspect of left shoulder 1-1/2" above from the acromiom process of clavical;
(4) Bruise red in colour 6" x 1" turnsvers in shape on the lower part of the back on its left 1/2" below from the left side 1/2" below from the last floating rib;
(5) Bruises red in colour 5" x 1" on the lower part of the back 1/2 above from the anterior superior liar crest.
According to Dr. Sinha, all the injuries bad been caused within 15 to 20 hours of the examination. Injury No. 1 was grievous in nature while the other injuries were simple. Injury No. 2 was caused by a sharp weapon while the-other injuries had been caused by blunt weapon. Dr. Sinha ruled out the-possibility that injury on Bhika Ram could have been self-inflicted. He was not suggested, though cross-examined by the learned Public Prosecutor that injuries of Gayad Ram or for that matter of Narain Ram could have been self inflected.
20 It is an admitted case of the prosecution that at the time of the incident, Bhanwar Dan, Jodh Dan and Umar Dan were carrying kasis The prosecution witness have not explained how the accused-persons came to. receive aforesaid injuries. We may state that injuries on the person of Gayad Ram were quite extensive and one of them had been caused by sharp object namely, a kasi. If the accused-appellant had not committed criminal trespass in the filed in possession of Bhanwar Dan, Umar Dan then a heavy duty lay on the prosecution witnesses to explain the true genesis of the incident. We find that the prosecution witnesses named above, have failed to explain the true genesis of the incident.
21. Learned trial court was of the view that the accused appellants had failed to establish that they were in possession of the disputed land and on such premise, he by implication, held the accused-appellants as aggressors. In our opinion, this course was not open to him. In Antu v. The State of Haryana , it was established that the possession of land in question was under dispute at the time of incident Both the parties were injured in that case and the prosecution tried to show that at the very time of incident, it was in possession of the land Hon'ble Judges of the Apex Court refused to draw an inference, in these circumstances, that the accused-appellants were aggressors.
22. We may state that the standard of proof required on the part of the prosecution to establish the guilt of the accused person beyond all reason-able doubt is quite heavy. On the other hand, the burden on the accused persons to establish that they had a right of private defence is much lighter and even if the case set up by them is not fully established on an overall view of the evidence but the story put up by them is plausible and the Court eater tains reasonable doubt in its mind as to the guilt of the accused, the accused are entitled to the benefit of such doubt It is not even necessary for the accused persons to plead a right of private defence of person and property if such a plea is available to them on the strength of proved circumstances of the case. In State of U P.v Ram Swaroop and Anr. , the Apex Court states the legal position of follows:
The burden which rests on the prosecution to establish its case beyond a reasonable doubt is neither neutralised nor shifted because the accused pleads the right of private defence.
In Dr S.L. Goswami v. State of Madhya Pradesh , it observed as under:
The onus of proving all the ingredients of an offences always is upon the prosecution. Even incases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less It further observed as under:
The standard of proof which the accused may adduce in support of his plea in defence is not the same which the prosecution is required to adduce.
In the present case, the learned Addl Sessions Judge was very much swayed by the fact that Jodh Dan had received a fatal injury and had died due to assault in the incident. He was also greatly in flaenced by the fact that the number of the accused-appellants was larger than that of the injured persons on the complainant side. In our opinion, on the proved facts of this case, it is not possible to arrive a definite conclusion that the accused-appellants were aggressors, particularly when the injuries on the persons of Narain Ram, Bhika Ram and Gayad had not been explained. To our mind, this non-explanation highly probabilises the defence theory that accused persons might have gone to the field in dispute innocently and on being assaulted, might have repelled the attack and during the melee that ensued, members of both the parties received injuries and unfortunately the injury on the person of Jodh Dan was fatal and resulted in his death. This is an admitted case of the prosecution that the in order took place on the field, the possession whereof was in dispute between the parties. This field was separated from the Dhanis of Umar Dan, Jodh Dan etc by a 'math' i e. a dividing sandy wall. The In-vestigating Officer admitted in cross-examination that the field in dispute had been a part of Khasra No. 223 and had been allotted to Gayad. Ugia and Bhadar. He has admitted that the accused-appellants had pointed out to him that the incident had taken at the place, which was in possession of Gayad and Ugia. He also admitted that there was a stack of manure on this field. He admitted that a report of this very incident had been lodged on the side of the accused persons that very night with Head Constable Bhanwar Lai. He also admitted that prosecution witnesses did not explain the injuries found on the persons of the accused side. These admissions of the Investigating Officer go to probablise the defence version to a great extant We are, there-fore, of the view that the accused-appellants had a right, subject to the restrictions contained in Sections 99 & 100 to defend the persons of Narain, Bhika and Gayad. In this case, Gayad bad received a grievous hurt and Jodh Dan, Umar Dan and Bhanwar Dan were armed with Kasis, which are deadly weapons. Hence, the appellants could reasonably apprehend that the assault by Bhanwar Dan, Umar Dan and Jodh Dan would cause death or grievous hurt if not repelled. The action of the appellants was, therefore, covered by clauses (i) and (ii) of Section 100 of the Indian Penal Code. In this view of the matter, we find that the prosecution has failed to establish that the accused-appellants committed any offence what so ever. In our opinion, it is absolutely unsafe and hazardous to uphold the convictions of the accused-appellants for any offence what so ever.
23. We, therefore, accept the appeal, set aside the convictions and sentences recorded by the learned trial court and acquit all the appellants Bhika of offence Under Section 302, IPC. We acquittal the appellants including Bhika of offences Under Sections 148, 325 and 323 read with 149, IPC. Such of the accused appellants, who are in custody shall be set free forthwith, if not required in any other case. Fine, if paid, shall be refunded to the accused-appellants.