JUDGMENT 1. - This appeal filed by Neki and Hari Singh appellants arises out of a judgement of the learned Sessions Judge, Bharatpur, dated 17th September, 1973, whereby Neki was convicted under Section 304, Part II, Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and Hari Singh was convicted under section 335, I.P.C. and, instead of being sentenced, was released on probation of good conduct upon his furnishing a personal bond in the sum of Rs. 2000/- with one surety in the like amount, to appear and receive sentence when called upon to do so during a period of three years, and in the meantime to keep the peace and be of good behaviour. 2. The prosecution case, as disclosed in the first information report against both the accused was that on 19.3.1973 at about 12.30 p.m. Ramavati wife of Karan Singh's son, Bhim Singh, had led her she-buffalo, to a tank for the purpose of making the animal to drink water. The she buffalo, however, went out of Ramavati's control and stayed into the field of Neki appellant, wherein wheat crops were growing. The animal caused some damage to the crops. Thereupon, Neki came to Karan Singh's field, wherein Shibbo, Bhim Singh, his brother Munshi, his mother Chamela and Munshi's wife Kalavati were cutting their crops of wheat. Neki abused Karan Singh's family in a foul manner and after sometime returned to his house. About an hour thereafter, he and his two sons Hari Singh and Ramesh came to the field of Karan Singh having armed themselves with lathis. Neki and his two sons openly declared that they would not spare anybody. At that time, Karan Singh also reached there followed by Bidha, Gadaria and Rati Ram Jat. Harisingh appellant at first gave a lathi blow on the head of Munshi. Then Neki struck another blow on Murshi's head. On seeing his son being beaten by the appellants, Karan Singh ran to his rescue but he was hit on his head by Ramesh with a lathi. Another blow on Karan Singh's head was inflicted by Shibbo. Neki also gave a violent blow to Karan Singh, which fell on his head. As a result of these blows, Karansingh immediately fell unconscious on the ground. Another blow on Karan Singh's head was inflicted by Shibbo. Neki also gave a violent blow to Karan Singh, which fell on his head. As a result of these blows, Karansingh immediately fell unconscious on the ground. Karansingh's son Bhim Singh then rushed to intervene but he was given a lathi blow on his back by Ramesh, Bidha and Rati Ram who were eye witnesses, shouted to the accused to desist from giving further beating. Neki and his sons, thereupon disappeared from the place of occurrence. After the incidents was over, several villagers came to the spot and removed Karan Singh and the other two injured Munshi and Bhim Singh to the General Hospital, Bharatpur, in a trolly of the tractor of Ram Dhan; where they were medically examined by Dr. D.P. Mishra, Medical Jurist. Karan Singh and Munshi were admitted in the hospital as indoor patients for treatment of their injuries. As the condition of Karan Singh was precarious, he could not survive and succumbed to his head injury at 3 a.m. on 20.3.73. A report of this incident was lodged with the police on 20.3.73 at 8.30 a.m. by his son. Bhim Singh at police station, Sewar, which lies at a distance of about one mile from the General Hospital, Bharatpur. The police registered a criminal case under section 302/34 IPC on the basis of the report and started investigation. Neki and his sons were arrested during the period between 23.3.73 and 28.3.73. The investigating officer collected other necessary evidence and eventually submitted a charge sheet against all accused including the two appellants in the court of the Munsif Magistrate, Bharatpur for offences under sections 302, 34, 447, 323 and 325, Indian Penal Code. The learned Magistrate conducted an inquiry, preparatory to commitment, and by his order dated 22.8.1973, sent all the accused to Sessions for trial under sections 302/34, 307/34, 323 and 447, Indian Penal Code. The learned Sessions Judge, Bharatpur, tried Neki and his two sons and, upon scrutiny of the entire evidence available on the record, arrived at a conclusion that Neki and Hari Singh were guilty under Section 304 Part II, and section 335, Indian Penal Code respectively. The other son, namely, Ramesh was acquitted of all the charges. As against this judgement of the trial Judge, Neki and Hari Singh have come up in appeal to this court as stated above. 3. The other son, namely, Ramesh was acquitted of all the charges. As against this judgement of the trial Judge, Neki and Hari Singh have come up in appeal to this court as stated above. 3. I have carefully gone through the record and heard the arguments advanced by Shri Than Chand Mehta for the appellants and Shri Dinkar Mehta, appearing on behalf of the State. 4. Firstly, it has been contended on behalf of the appellant that although the trial Judge found fault with the evidence of the eye-witnesses disbelieved the version given out by them so far as it related to the manner in which the occurrence took place, yet he arrived at findings of fact which are manifestly wrong and unsupported by evidence on the record. In support of the above proposition, the appellant's counsel invited my attention to certain observations which the learned Sessions Judge has made in his judgement while assessing the evidence of the eye-witnesses. 5. I have given my anxious consideration to the above contention which appears to be well founded. From a perusal of the judgement of the trial court, it is evident that the trial Judge, while himself adverting to important places of evidence running contrary to his findings has failed to draw clear and correct inference from the facts established in the case. While dealing with the contention of the defence regarding the delay in making the first information report, the learned Sessions Judge made the following observations in para 7 of his judgement:- "I find considerable force in the contention of the learned counsel that this delay in reporting the matter to the police was utilised in roping in innocent persons. In the FIR, all the male members of the family, namely Neki and his three sons Hari Singh, Ramesh & Shibbo were implicated as assailants, but, at the trial, all the prosecution witnesses absolved Shibbo. This is a clear indication that time was utilised in fabricating a story so as to implicate all the male members of the other family." In para 18 while discussing the evidence on the point as to who had caused fatal injury to Karan Singh, the Sessions Judge observed as follows:- "As regards the fatal injury caused to Karan Singh, the picture is still more sordid and conflicting. The witnesses have described multiple injuries on the person of Karan Singh, but that version is found to be totally false in view of the medical evidence. There was only one lacerated wound with haematoma on the right parietal region of the deceased and no other injury whatsoever. In the FIR, this injury is ascribed to as many as three persons. It is stated that when Karan Singh intervened to save his son Munshi, the accused Ramesh gave a lathi blow on the head of Karan Singh, followed by a second similar blow by Shibbo and a third blow by Neki. This statement does not mean that the first two assailants might have simply touched the head of the deceased by their lathis and it was Neki alone who broke his head with a forceful blow. The evidence of practically all the eye-witnesses is found to be shaky." While giving his finding on point No. 5, in para 20 of his judgement, the learned Sessions Judge observed as under:- "If Munshi had not used the Jeria, the opposite-party might not have been so much provoked as to hit on the vital parts of their adversaries. From the medical evidence, it is very well established that Hari Singh was examined at 4.40 p.m. by the same Medical Jurist & he noticed a number of injuries on his person. The prosecution has failed to explain these injuries. All the prosecution witnesses have stated that neither Hari Singh was belaboured nor did they see any injury on his person. This suppression of the true state of facts raises a strong presumption that the complainant party was not so much innocent and there is no wonder that when Munshi struck Hari Singh with a Jaria, the emotions were aroused and there was a retaliation with a greater force. I, therefore, arrive at the conclusion that when Munshi came with a Jaria and belaboured Hari Singh, the latter was provoked to deal a blow in exchange. The one blow was sufficient to throw him on the ground unconscious. It may be as a measure of self defence that Hari Singh gave the blow to Munshi, or it may be case falling under Section 325 I.P.C." Again in para 22, the learned Sessions Judge was of the view that Neki might not have struck the blow on the body of Karan Singh. It may be as a measure of self defence that Hari Singh gave the blow to Munshi, or it may be case falling under Section 325 I.P.C." Again in para 22, the learned Sessions Judge was of the view that Neki might not have struck the blow on the body of Karan Singh. He made the following observations:- "It is quite possible that Nedi might not have hurled the blow to this old man, as has been narrated by the prosecution witnesses at the trial...... This witness has further testified that Karan Singh did not try to pacify the contending parties, but provoked them to settle the differences by a straight fight. Having regard to their age, Neki aged 55, and Karan Singh, aged 50 years, were contemporary and there is no wonder that Karan Singh provoked his own son-in-law to resort to force." In spite of the adverted to above observations, the Sessions Judge held Neki & Hari Singh responsible for causing one injury each to the head of Karan Singh and Munshi respectively. It is, therefore, all the more necessary to scrutinise the evidence on the record with a view to ascertaining whether the conclusions arrived at by the lower court as to the guilt of the two appellants are correct and based on evidence. The prosecution has examined all witnesses in the trial court to substantiate its case, out of whom Munshi P.W.1, Mst. Chamela P.W.2 Mst. Hanso P.W.7, Bhim Singh P.W.8 and Mst. Ramavati, P.W.9 are family members of Karan Singh deceased, who claimed to have eye witnesses the occurrence from start to finish. Besides there are two independent witnesses, namely, Bidha Ram P.W. 6 & Rati Ram P.W.3 who according to the prosecution, had reached the place of occurrence before the attack was made on Karan Singh and his son Munshi. Upon careful review of the testimonies of these witnesses, I have no hesitation in holding that their evidence is highly discrepant and full of exaggerations and improvements in essential particulars. Munshi P.W.1 has stated in his deposition at the trial that Hari Singh and Neki appellants inflicted one blow each by a lathi on his head, as a result of which he fell down, but, curiously enough, the Doctor, who examined found one injury only on his head, which was a lacerated wound 1" x 1/4" x 1/4" with haematome. Munshi P.W.1 has stated in his deposition at the trial that Hari Singh and Neki appellants inflicted one blow each by a lathi on his head, as a result of which he fell down, but, curiously enough, the Doctor, who examined found one injury only on his head, which was a lacerated wound 1" x 1/4" x 1/4" with haematome. P.W.6 Bidha Ram did not say in his deposition that Neki appellants also had struck a lathi blow to Munshi. He merely stated that Munshi received an injury on his head at the hands of Neki's son. Ramawati PW 9 gave out a different version that Hari Singh gave one injury on Munshi's neck and Ramesh also struck a lathi blow on his thigh. Likewise, Munshi stated before the trial court that he had seen Neki appellant along striking a lathi blow to his father. Mst. Chamela P.W.2 on the other hand, stated in her deposition that Neki appellant struck a blow on the head of her husband Karan Singh, while Hari Singh dealt a lathi blow on his feet. She was confronted with portion I to J of her statement Ex. D.3 wherein she stated that Neki, Hari Singh and Shibbo had struck one blow each in quick succession on the head of her husband Karan Singh, When confronted with the above portion, Mst. Chamela could not afford any explanation for the above inconsistency in her two statements. She merely denied to have given out the above statement before the committing court. Again, she was confronted with portion K to L of her statement Ex. D.3 wherein she stated that apart from Hari Singh, Ramesh also had struck a lathi blow on the head of Munshi. Rati Ram P.W.3 has turned hostile to the prosecution case. He did not claim to have seen the occurrence in the manner stated by the other eye witnesses. P.W.6 Budha Ram clearly admitted in his cross examination that Hari Singh and Ramesh had not inflicted any blow on the body of Karan Singh and that Bhim Singh also did not receive any injury at the hands of the assailants as he had succeeded in running away from there. PW.7 Mst. Hanso claimed to be an eye-witnesses in the trial court, although she denied to have seen the 'Marpeet' in portion C to D of her previous statement. Ex. PW.7 Mst. Hanso claimed to be an eye-witnesses in the trial court, although she denied to have seen the 'Marpeet' in portion C to D of her previous statement. Ex. D.5 with which she was confronted and contradicted. P.W.8 Bhim Singh told a different story. According to his version the first blow was inflicted on the head of Karan Singh by Neki appellant. The other blow dealt on Karan Singh's head by Ramesh. He claimed to have intervened but Neki openly declared that he also should be done away with. P.W. 8 Bhim Singh then ran away from there after receiving a lathi blow on his back. He was confronted with and contradicted by portions C to D and E to F of his statement Ex. D.6 which he gave before the police and wherein he stated that when his father Karan Singh intervened, Ramesh struck a lathi on his father's head and that Shibbo and Neki also gave him one below each with a lathi, which too fell on his head. Similarly in portion E to F of his statement Ex. D.7, which he gave before the committing court, Bhim clearly stated that the first blow on his father's head was given by Ramesh, the second was inflicted by Shibbo and the third one was dealt by Neki. In his deposition before the trial court he did not name Shibbo as one of the assailants who took part in beating him, Karan Singh and Munish, Ramavati P.W.9 stated in her deposition at the trial that when Karan Singh fell down, Ramesh and Hari Singh had struck lathi blow on his body. She was confronted with portion A to B of her statement Ex. D.9, wherein she stated that Ramesh and Neki struck one blow each of the head of Karan Singh, as a result of which his head gave way and he fell down. When confronted with the above portion of her statement, Ex. D.9 she could not explain the apparent inconsistency. In this manner, the statements of the eye witnesses are full of material contradictions and no reliance can be placed upon them for convicting the appellants. 6. In the first information report it was stated that Hari Singh first assaulted Munshi and struck a lathi blow on his head and, thereafter, Neki appellant gave him another blow, which also fell on his head. 6. In the first information report it was stated that Hari Singh first assaulted Munshi and struck a lathi blow on his head and, thereafter, Neki appellant gave him another blow, which also fell on his head. On seeing his son being beaten severely, Karan Singh came to his rescue but he was hit on his head by Ramesh, Shibbo and Neki, who dealt one lathi blow each on his head. The sequence in which the occurrence took place according to the FIR was changed altogether by the eye witnesses in their depositions at the trial. They stated before the trial court that at first Karan Singh was attacked by Neki and thereafter when Munshi came to the rescue of his father, he was beaten by Hari Singh and Neki with lathis. Bhim Singh the maker of the FIR was confronted with and contradicted by portions C to D and E to F of the F.I.R. Ex.P.1, but he could not afford a reasonable explanation for the subsequent change in the sequence. It is fully established by the medical evidence that Karan Singh had only one injury on his head which proved fatal. There is no reliable evidence on the record to prove that this injury was inflicted on the head of Karan Singh by Neki appellant. As indicated above, the evidence of the eye witnesses is highly discrepant and incredible on this point. In their earlier statements by which they were contradicted all the eye witnesses except Bidha Ram have stated that besides Neki, Ramesh and Shibbo also had struck blows on Karan Singh's head. In the absence of any unimpeachable evidence as to who had struck the fatal below on the head of Karan Singh, it is difficult to hold Neki appellant responsible for the head injury caused to Karan Singh. 7. Mr. Dinkar Mehta appearing on behalf of the State vehemently contended before me that Bidha Ram P.W.6 is an independent witness and his evidence is of sterling worth which could provide a sure foundation for the conviction of the appellant. The above contention is not acceptable because Bidha Ram admitted in his cross examination 'that Neki' appellant had once given evidence against him. He, however, stated that he was not annoyed with Neki that score, but, on the other hand, was pleased with him. The above contention is not acceptable because Bidha Ram admitted in his cross examination 'that Neki' appellant had once given evidence against him. He, however, stated that he was not annoyed with Neki that score, but, on the other hand, was pleased with him. Be that as it sit may, the fact remains that Neki had once deposed against this witness. Apart from this, evidence of Bidha Ram disclosed some such facts and circumstances which lead to a legitimate inference that the appellants caused injuries to Karan Singh and Munshi in the exercise of their right of private defence of person. Bidha Ram admitted in his deposition at the trial that Neki caught hold of Karan Singh's hand took him to his house for the purpose of showing the damage caused to his crops by the she buffalo. According to Bidha Ram, there was some damage caused to Neki's crops. On seeing the damage, Karan Singh told that the latter also did not lag behind in causing damage to the crops of others. If the above statement of Bidha Ram is taken to be true, it goes to show that Neki appellant and his son Hari Singh were not determined to use force to Karan Singh and his son Munshi, who were admittedly relatives of Neki, because if Neki and his sons had started from their house with a determination to beat Karan Singh and Munshi, they would have lost no time in making assault on Munshi and Karan Singh after reaching their field. Bidha Ram again stated in his deposition that when Karan Singh and Neki returned to Karan Singh's field after seeing the damage caused to Neki's crops, Munshi came there having armed himself with an (iron shod)) (jeria) which he had brought from his thrashing field. According to Bidha Ram, Munshi was in a fighting mood because Munshi's wife caught hold of the 'Jeria' with a view to preventing him from making an assault. Meanwhile, Karan Singh stated "now let there be a fight". According to Bidha Ram, Munshi was in a fighting mood because Munshi's wife caught hold of the 'Jeria' with a view to preventing him from making an assault. Meanwhile, Karan Singh stated "now let there be a fight". " brus esa djuflag cksyk vc fd gks ysus nksA " In his cross examination Bidha Ram further admitted that Karan Singh did not make an attempt to avoid the fight but he exclaimed: 'let it happen today' In this manner, it transpires from the evidence of Bidha Ram that Munshi was in a fighting mood and that Karan Singh instigated him by saying that let there be a fight. Bidha Ram, however, suppressed some real facts by wrongly stating that Neki's son has at first inflicted a blow on Munshi's head and thereafter when Karan Singh came to the rescue of his son. Neki struck a blow on his head. The real facts suppressed by this witness are that he did not say anything in his deposition about the injuries sustained by Hari Singh on his body. It has been proved by the statement of Dr. D.P. Mishra which was duly recorded by the committing court in the presence of the accused & admitted in evidence at the trial that Hari Singh was medically examined on 19.3.1973 i.e., the very day on which occurrence took place. Upon medical examination, the following injuries were found on his body:- 1. haematome 31/2" x 21/2" on the right parietal region; 2. heamatome 31/2" x 11/2" on the left frontal region of the scalp; 3. confusion md. oblique 21/2" x 1/2" on the right side of back in the upper half; 4. confusion md, 21/2" x 1/2" on the right side on back in the lower half; 5. abrasion 1" x 3/4" on the back of right writs. All the injuries in the opinion of Dr. D.P. Mishra were simple and caused by blunt weapon within about six hours of the medical examination. The prosecution could not furnish any explanation for the presence of these five injuries on the body of Hari Singh soon after the occurrence. The eye-witnesses did not say in their depositions that Hari Singh had sustained injuries at the hands of Munshi or Karan Singh or anybody else during the course of occurrence. The prosecution could not furnish any explanation for the presence of these five injuries on the body of Hari Singh soon after the occurrence. The eye-witnesses did not say in their depositions that Hari Singh had sustained injuries at the hands of Munshi or Karan Singh or anybody else during the course of occurrence. As stated earlier; Bidha Ram while suppressing real facts admitted this much that Munshi brought an iron shod 'Jeria' from his thrashing field and was in a fighting mood but he was prevented by his wife who tightly caught hold of his 'Jeria' and that Karan singh speak some such words as 'Let there be fight'. These facts coupled with unexplained presence of as many as five injuries on the body of Hari Singh soon after the occurrence make it highly probable that Munshi and Karan Singh attacked Hari Singh in the first instance and thereafter Hari Singh inflicted blows on the body of Munshi and Karan Singh in self defence as pleaded by him in his statement recorded under section 342, Criminal Procedure Code. Hari Singh received two injuries on his head i.e. one haematoma 3" x 21/2" on the right parietal region and the other on the left frontal region of the scalp. The violent and the threatening attitude of Munshi and Karan Singh and the injuries which Hari Singh received on his head and other parts of the body were sufficient to give rise to a reasonable apprehension in his mind that was in danger of receiving a grievous hurt at least at the hands of Karan Singh and Munshi. It was not necessary for Hari Singh that he must have waited till he received a grievous injury, it is the existence of the reasonable apprehension of danger to the body and not the actual injuries received that determines the question whether there was any justification for the act of the accused. In view of these injuries, it cannot be said in the circumstances of this case that Hari Singh exceeded his right of private defence of person by striking one blow each on the head of Munshi and Karan Singh. 8. In view of these injuries, it cannot be said in the circumstances of this case that Hari Singh exceeded his right of private defence of person by striking one blow each on the head of Munshi and Karan Singh. 8. For the foregoing reasons, I feel persuaded to hold that the trial court committed an error in convicting the appellant Neki for the offences punishable under Section 304, Part II, and Hari Singh under Section 335, Indian Penal Code despite arriving at a conclusion that the evidence of the eye witnesses was highly discrepant and unreliable and that the possibility of Hari Singh appellant acting in right of private defence of person could not be ruled out. The appellants deserve to be acquitted of the offence for the commission of which they were convicted. 9. I, therefore, accept the appeal filed by Neki, set aside his conviction and sentence under Section 304, Part II, Indian Penal Code and acquit him of the said charge. Neki in jail. He shall be released forth with if not required in connection with some other case. I accept the appeal of Hari Singh also, set aside his conviction under Section 335, Indian Penal Code and also the order releasing him on probation of good conduct and acquit him of the said offence. The personal and security bonds furnished by him are hereby cancelled. *******