JUDGMENT 1. - This is an appeal filed by Madan, Dauji and Jwahar against a judgement of the learned Additional Sessions Judge, Gangapur City camp Bharatpur, dated 5.7.1973 by which Jawahar was convicted under section 324 IPC and was sentenced to undergo rigorous imprisonment for six months only, and Madan and Dauji each was convicted under Section 304, Part-I, read with Section 34, Indian Penal Code and Section 323, Indian Penal Code and sentenced to undergo rigorous imprisonment for five years' and to pay a fine of Rs. 250/- in default to further suffer rigorous imprisonment for a period of three months on the first count and on the second, to undergo rigorous imprisonment for three months only. Both the substantive sentences of imprisonment awarded to Madan and Dauji were, however, ordered to run concurrently. 2. The facts which are relevant for the purpose of this appeal may briefly be stated as follows:- On 28th October, 1972, at about sun-set Mst. Bhoti, mother of Gir Raj deceased had gone to her enclosure 'Bara' for collection of cow-dung cakes, while she was bringing the cow dung cakes after collecting them in her enclosure, the appellants abused her in a foul manner and asked her why she had not vacated their 'Bara' upto that day. Mst. Bhoti came to her house and related the incident to her son Gir Raj, who immediately went to the Nohra of the appellants to lodge a strong oral protest to the highhanded manner in which they had behaved with his mother. The appellants resented the protest made by Gir Raj. They began to hurl abuses upon Gir Raj also. Thereupon, Gir Raj asked them not to use abusive language in talking to him but his protest added fuel to the fire and the appellants made a concerted attack on him with deadly weapons, like Pharsas, spear and lathi. Gir Raj raised an outcry, which attracted his two brothers Genda, and Shria, Kishan Lal Mihi Lal & Lala Ram to the place of occurrence. In their presence Madan appellant struck a blow with a pharsa on the head of Gir Raj while Dauji gave him a lathi blow, which also fell on his head. As a result of these blows, Gir Raj fell down. Then Jawahar used his spear and inflicted a blow with it on the left hand of Gir Raj. In their presence Madan appellant struck a blow with a pharsa on the head of Gir Raj while Dauji gave him a lathi blow, which also fell on his head. As a result of these blows, Gir Raj fell down. Then Jawahar used his spear and inflicted a blow with it on the left hand of Gir Raj. Shria tried to rescue his elder brother Gir Raj, but he also was beaten by Jawahar Madan and Dauji with spear, Pharsa and lathi respectively. On his seeing his brothers being severely beaten, Genda rushed to intervene but Dauji gave him lathi blows, which fell on his head and shoulder, while Jawahar and Madan struck blow on his body with spear and Pharsa respectively. The inhabitants of the village began to assemble at the spot. At their sight the appellants disappeared from there. As Gir Raj had become unconscious and his condition was serious, some of the villagers removed him to Primary Health Center, Nadbai, in a bullock cart. Gir Raj and his two brothers were medically examined. On the next day in the morning Gir Raj succumbed to the injuries in the hospital. A written report of this incident was lodged with the police by Genda after Gir Raj was admitted into the hospital. The police registered a criminal case under Section 324, 307/34, IPC on the basis of the report and commenced investigation. Later on, when Gir Raj died of his injuries in the hospital, the case was altered to one under Section 302/34, Indian Penal Code. The police collected a necessary evidence in the case and after making usual investigation, submitted a charge-sheet against all the three appellants in the court of the Additional Munsiff Magistrate No.1, Bharatpur, who, after holding an inquiry, preparatory to commitment, sent the appellants to the court of Sessions for trial under section 302/34, 323 and 324, Indian Penal Code. The learned Additional Sessions Judge, Gangapur City, who tried the appellants, scrutinised all the evidence adduced in the case and arrived at a conclusion that Madan & Dauji appellants were guilty of an offence, punishable under Section 304, Part-I, read with Section 34, Indian Penal Code and 323, Indian Penal Code and that Jawahar was responsible for causing simple injuries to Shria with a sharp-edged instrument, he, therefore, convicted and sentenced the appellants in the manner stated above. Aggrieved by their conviction and sentences, the appellants have preferred this appeal. 3. I have carefully gone through the record and heard the arguments advanced by Mr. Doongar Singh, learned counsel for the appellants and Mr. Dinkar Mehta, Deputy Government Advocate, appearing on behalf of the State. Firstly, it has been contended on behalf of Jawahar appellant that the trial court went wrong in holding Jawahar guilty of the offence punishable under section 324, IPC. In support of the above contention, the learned counsel invited my attention to some important facts established in the case and contended on their strength that no injury was caused by Jhawahar to Shria with a spear & that the accounts given by the eye-witnesses in this respect was highly incredible. The facts pointed out by the learned counsel for Jawahar are that according to the prosecution story. Jawahar inflicted one blow on the hand of Gir Raj deceased with a spear. Curiously enough, there was no injury caused by a spear or by a sharp edged instrument on the hand of the deceased. There was an injury, no doubt, on the left fore-arm of Gir Raj at mid-region latero-posterial, but it was a simple injury caused by a blunt object. The trial court rightly disbelieved the evidence of the eye witnesses so far as it related to the causing of an injury to Gir Raj by Jawahar appellant with a spear. The eye witnesses further deposed that Jawahar caused an injury on the head of Shria with a spear. As regards this injury, it may be observed that Shria had five simple injuries in all on his body at the time of medical examination out of which one wound was an incised wound on the left parietal area of the scalp. Dr. P.C.Jain, who medically examined Shria, has admitted in his cross examination that a wound on the scalp caused by a blunt object may look like an incised wound. The above opinion of Dr. Dr. P.C.Jain, who medically examined Shria, has admitted in his cross examination that a wound on the scalp caused by a blunt object may look like an incised wound. The above opinion of Dr. P.C.Jain finds support from the observations of N.J. Modi which he made in his book 'Modi's Medical Jurisprudence and Toxicology' 18th edition, at page 209 in the following words:- "Occasionally, on wounds produced by a blunt weapon or by a fall the skin splits and may look like incised wounds when inflicted on sense structures covering the bones, such as scalp, eye-brow, alliac-crest, shin, perineum etc., or by a fall on the knee or elbow when the limb is flexed. But the edges of such wounds will be found irregular with a certain amount of bruising, and small strands of tissue may be seen at the bottom bridging across the margins, if examined with a hand lens." The contention, therefore, of the learned counsel for the appellants, that no injury was caused by Jawahar to Shria's head with a spear, appears to have some force, especially when a wound produced by a piercing weapon like spear is a punctured or stab wound. Shri N.J. Modi has described the character of punctured or stab wounds in his aforesaid book at page 205 in the following words. "Punctured or stab Wounds"-These are popularly called stabs and are termed penetrating wounds, when passing through the tissues they enter a cavity of the body, such as the thorax or abdomen. These wounds are produced by a piercing or stabbing instrument, such as pin, needle, knife, scissors, bayonet, spear dagger, pickaxe, arrow, etc. The point of the instrument may be sharp or blunt." If the spear had been used by Jawahar in causing an injury on the scalp of Shria, there would surely have been a penetrating or stab wound instead of an incised injury. Consequently, it is highly doubtful whether any injury was inflicted on the head of Shria by Jawahar with a spear. Jawahar has not been held responsible for causing any other injury to Gir Raj, Shria and Gainda. Hence, there was no satisfactory evidence against him to sustain his conviction under section 324 of the Indian Penal Code. 4. Consequently, it is highly doubtful whether any injury was inflicted on the head of Shria by Jawahar with a spear. Jawahar has not been held responsible for causing any other injury to Gir Raj, Shria and Gainda. Hence, there was no satisfactory evidence against him to sustain his conviction under section 324 of the Indian Penal Code. 4. As against the convictions of Madan and Doji appellants, it has been contended that Gir Raj deceased and his two brothers namely Shria and Gainda had gone to the 'Nohra' of the appellants for the purpose of picking up a quarrel with Madan who had abused. Mst. Bhoti in a foul manner and prevented her from talking cow dung cakes from an enclosure, the ownership of which was in dispute between the parties. According to the learned counsel for the appellants, Madan and his two sons had a right to turn the deceased and his brothers out of their 'Nohra' which was admittedly in their possession. It was further urged that as the deceased and his brothers were the provoking party having arms in their hands and determined to use force and in fact they did use force the appellants also needed force and arms to turn them out and that in the course of the exercise of their rights of the private defence of person and property, they could cause injuries to the aggressors. The above contention has no force because the incident of 'Marpeet' did not take place or at the 'Nohara' of Madan appellant, but it occurred in a lane at some distance from the 'Nohra'. Dala Ram eye-witnesses definitely stated in his cross examination that in front of the 'Nohara' of Madan appellant, there is a lane where he saw Gir Raj and Madan abusing each other. According to this witness, the lane does not belong to any person and is commonly used as a public way. Similar is the evidence of Shria on this point. Shria stated in his cross examination that after the Marpeet was over, Gir Raj fell on the public pathway which was sandy. According to this witness, the lane does not belong to any person and is commonly used as a public way. Similar is the evidence of Shria on this point. Shria stated in his cross examination that after the Marpeet was over, Gir Raj fell on the public pathway which was sandy. Kishan Lal PW 4, who turned hostile to the prosecution case, also claimed to have seen the appellants, beating Gir Raj in the way, at the crossing, Mihilal PW 5 definitely stated that the Marpeet took place in the way in front of the house of Prabhu and on the back side of the house of Karan Singh. Karan Singh PW 7, when cross examined on this point, clearly stated that the place where Gir Raj had fallen down, lay at a distance of about eight or ten paces towards the south from the 'Nohara' of Madan appellant. Hence, it is conclusively established by the prosecution evidence that the incident of Marpeet did not occur at the 'Nohara' of Madan appellant. The learned counsel appearing on behalf of the appellants invited my attention to a discrepancy appearing between the first information report and the statement of the maker thereof relating to the place of where the complainant party was assaulted. Gainda was the author of the first information report in this case. In his report, he stated that his brother Gir Raj had gone to the 'Nohra' of Madan appellant to raise a protest against the highhanded manner in which Madan had treated Mst. Bhoti. In his subsequent deposition at the trial, Gainda gave a slightly different version by stating that Gir Raj did not reach the 'Nohra' of Madan because Madan appellant had met him in the way near crossing. The above discrepancy is not of material significance because in the first information report, Gainda did not say that the occurrence took place at the 'Nohra' of Madan appellant and that the appellants had a right to cause injuries to the complainant party in exercise of their right of private defence of property. 5. The next question that arises for determination is whether Madan and his two sons had a reasonable apprehension in their minds that grievous hurt might be caused to them by the complainant party if steps were not taken to defend their persons. 5. The next question that arises for determination is whether Madan and his two sons had a reasonable apprehension in their minds that grievous hurt might be caused to them by the complainant party if steps were not taken to defend their persons. Thee is no material on record to show that the appellants had justifiable reasons to apprehend that Gir Raj or his brothers would cause grievous hurt to them and that they were within their rights to hit the complainant party in self defence. The learned counsel for the appellants received multiple injuries on their bodies in the course of the same occurrence and that prosecution failed to give any explanation for their presence. Hence, according to him, it may be safely presumed that Gir Raj deceased and his two brothers were the aggressors who had attacked Madan appellants in the first instance. The above contention is devoid of force. It is no doubt true that Madan, Jawahar and Doji were medically examined by Dr. K.L. Sharma DW 1 on 2.11.72. Upon medical examination, the doctor detected following injuries on the persons of the three appellants:- (1) Injuries relating to Madan:- 1. Abrasion 2" x 1" left arm upper half medial side and front upper ⅓rd. 2. Abrasion 1" x ⅙" left side forehead. 3. Diffused swelling 1" x 1" area around right ulner styloid. (2) Injuries relating to Jawahar:- 1. Lacerated wound 1/2" x 1/10" with discharge and granulation situated on the under side of left index finger first phalynx joint with middle phalynx. The depth was superficial. 2. Abrasion (crused) 3/4" x 3/4" on the head near tuff of hair. 3. Abrasion ⅙" x ⅙" on the right parietal region front side. (3) Injuries relating to Doji:- 1. Abrasion 11/2" x 3/4" on the insertion of left deltoid. 2. Abrasion 1/2" x ⅙" on the supra clavicular region of left side. All the injuries sustained by the three appellants were simple in nature caused by a blunt object within five or six days immediately preceding their medical examination. In his cross examination, Dr. K.L.Sharma, DW.1 opined that all the injuries on the persons of the appellants were on approachable places & they could possibly be self inflicted and that none of the injuries was of a serious nature. In his cross examination, Dr. K.L.Sharma, DW.1 opined that all the injuries on the persons of the appellants were on approachable places & they could possibly be self inflicted and that none of the injuries was of a serious nature. Hence, the mere fact that the appellants also sustained some superficial injuries on their persons does not necessarily lead to an inference that they must have acted in the exercise of private defence of person. There must be some such circumstances in the cases as may render it possible that the accused might have caused injuries to the complainant party in self defence. In the absence of such circumstances, the omission on the part the prosecution to furnish any explanation of the injuries found on the persons of the appellants cannot be treated as a circumstance of material significance. There is reliable evidence of eye-witnesses on the record that when Gir Raj approached Madan and asked him why he had abused Mst. Bhoti, Madan appellants spoke abusive language and struck a 'Pharsi' blow on the head of Gir Raj. These established facts clearly go to show that Madan & Doji were the aggressors. They could not have a right of private defence against Gir Raj who had gone there unarmed to lodge a protest with Madan against his high handed action in abusing and manhandling his mother. The evidence of the eye witnesses, therefore, cannot be brushed aside merely on the ground that the prosecution did not explain injuries on the bodies of the three appellants. Reference in this connection may be made to an authority of the Supreme court Bankey Lal and others v. The State of U.P., AIR 1971 SC 2233 . 6. It is proved by the reliable evidence of Dr. P.C. Jain, PW 9 that Gir Raj deceased had four injuries on his body out of which, one lacerated wound 6cm x 2cm x 13/4 cm was on the frontal area of scalp towards the left side antro-postsriorly and the other was a lacerated wound 4 cm x 1 cm x 1 cm on the left front parietal area of the scalp. The other two injuries were on the left forearms and on the outer angle of the eye. In the opinion of the Dr. P.C. Jain, all the injuries were ante-mortem and were caused by blunt weapon. The other two injuries were on the left forearms and on the outer angle of the eye. In the opinion of the Dr. P.C. Jain, all the injuries were ante-mortem and were caused by blunt weapon. On dissection of the body, the doctor found five ounce clotted blood present under the scalp. The frontal bone also was fractured. The size of the fractured bone was 5 cm x 51/2 cm x 3 cm and the fracture was of a depressed nature. The membrance of the duramatter was torn at the side of the fractured bone and the brain showed congestion and extra dural haemorrhage between duramatter and skull. The death occurred, according to the opinion of the doctor, on account of compression of the brain due to fracture of the frontal bone. Likewise, the doctor examined Shria and Gainda also who had five and six injuries respectively on their persons. The injuries sustained by the deceased and his two brothers when compared with the injuries received by the appellants were more serious in nature, although, from the number and nature of the injuries, it cannot be concluded as to which one of the two parties was the aggressor. On taking into consideration all the surrounding circumstances of this case, it may be safety held that the appellants were the aggressors and that there was no occasion for them to exercise the right of private defence. 7. It was further contended on behalf of the appellants that Gir Raj deceased had no incised wound on his head and other parts of his body and that if blow with a sharp edged 'Pharsi' had been given to him by Madan appellant, he would have been surely received some sharp injuries. The above contention has no force because all the eye witnesses have clearly stated in their depositions that Madan had inflicted blows on the body of the deceased with a 'Pharsa'. There is no reason to disbelieve the eye witnesses on this point. It is highly probable that Madan might not have used the sharp edged of the 'Pharsa' in striking blows on the body of Gir Raj and his brothers. Reliance in this connection may be placed upon an authority of the Supreme Court Jai Narain Mishra & Others v. State of Bihar, 1972 CAR 19 SC 19 . 8. It is highly probable that Madan might not have used the sharp edged of the 'Pharsa' in striking blows on the body of Gir Raj and his brothers. Reliance in this connection may be placed upon an authority of the Supreme Court Jai Narain Mishra & Others v. State of Bihar, 1972 CAR 19 SC 19 . 8. Consequently, I have no hesitation in holding that Madan and Doji have been rightly held responsible for causing injuries to Gir Raj and his brothers. 9. Lastly, it was argued by the learned counsel for the appellants that there is no evidence to show which particular assailant out of Doji and Madan had caused the fatal injury on the head of Gir Raj and that there was no prior meeting of the minds or prearranged plan between the two to justify the application of section 34, Indian Penal Code. The above contention also is devoid of substance because Madan and Doji appellants attacked the deceased with 'Pharsa' and lathi respectively and caused several injuries to his body in quick succession out of which, injuries No. 1 and 2 were cumulatively proved fatal. Gir Raj was unarmed at that time. He had gone to lodge a protest with Madan against his highhanded action in maltreating and abusing his mother Bhoti. In these circumstances, looking to the nature of the injuries sustained by the deceased on his head, I do not feel persuaded to hold that trial judge committed an error in convicting Madan and Doji appellants for the offences punishable under section 304 read with 34 and 323, Indian Penal Code. 10. The result of the above discussion is that I accept the appeal of Jawahar, set aside his conviction and sentence under section 324 of the Indian Penal code and acquit him of the said charge. Jawahar appellant is on bail, he need not surrender to his bail bonds which are hereby cancelled. 11. The appeal filed by Madan and Doji appellants fails and is hereby dismissed. *******