JUDGMENT 1. - This appeal filed by the appellant Veera through the Superintendent, Central Jail, Jodhpur is directed against the judgment passed by the learned Additional Sessions Judge, Sirohi dated 1-5-74 by which the appellant has been convicted for the offence under section 302 Indian Penal Code and sentenced to imprisonment for life. 2. Briefly stated, the facts of the case giving rise to this appeal are that on 10-6-72 marriage ceremony of Netia Bheel with the daughter of Sonia took place at village Bhule. The marriage party besides others consisted of the appellant, deceased Jethia and witnesses Pabu (P.W. 1), Chanda (P.W. 3), Bhoja (P. W, 4), Bhaga (P.W.5) and Soma (P.W.6) who were standing scattered in the field of Sonia. At about 6-00 p.m. when the marriage ceremony was over, all of a sudden the appellant fired a shot from his gun at Jethia which hit the latter in the right side of the chest. Jethia fell down and died instantaneously, on account of profuse bleeding from his wound. After firing the shot the appellant ran away from there. The witnesses Chanda, Bhoja and Soma P.W. 3, 4 & 5 respectively were said to be present at the site of occurrence, on hearing the report of the gun Pabu and Soma who were at a little distance rushed to the site and were informed by bystanders about Veera firing a gun shot at Jethia and causing injuries to him. Pabu (P.W. 1) at once left for Police Station Roheda and reached there at about 10-00 p.m. He lodged a written report Ex. P. 1 with Amba Lal (P.W. 9) Head Constable, Incharge of the Police Station. On the basis of Ex. P. 1, Head Constable registered a case under section 302 Indian Penal Code. Govind Singh (P.W. 14), Station House Officer of Police Station Rohida was at Swaroopgang on 11-6-72. On receiving the information through the Head Constable about this incident, he immediately went to the site and proceeded with the investigation. He prepared a panchayatnama on the dead body and an inquest memo Ex. P. 3 and Ex. P. 4 respectively. He inspected the site and prepared the site plan Ex. P. 5 and site inspection memo Ex. P. 6. The clothes, Jethia was wearing at the time were taken in possession by the Station House Officer vide memo Ex. P. 3. P. 3 and Ex. P. 4 respectively. He inspected the site and prepared the site plan Ex. P. 5 and site inspection memo Ex. P. 6. The clothes, Jethia was wearing at the time were taken in possession by the Station House Officer vide memo Ex. P. 3. The blood smeared earth from the site was taken in possession vide Ex. P. 4. All the articles taken in possession were sealed then and there. Doctor Mangalsingh, Medical Officer Incharge, Primary Health Centre, Swaroopgang went to village - Boribhuj at the requisition from the Station House Officer, Police Station Rohida. He conducted the post-mortem examination on the -dead body of Jethia and noted as under:- 1. External Appearance : Condition of the subject: (1) Body of an young healthy male, eyes closed, blood stained froth in the nostrils, Rigorm mortis strait. 2. Wounds: (i) Gun shot wound with irregular margins blackening around the wound in 2" diameter one lateral aspect of right area 5" above right elbow joint size 17 x 6/8" opening on medical aspect of right area causing wound of exit size 1" x 6/8". (ii) Wound gun shot over lateral aspect of right side chest 3* below right axilla with blackening round the wound of entrance size 1" x 6/8" depth upto 3" traced on probing. (iii) Blackening present over superior border or right scapula - no marks of injury seen. Thorax: (1) Walls-wound noted in column No. 2 of external appearance of post mortem report. (2) 4th rib of right side fractured in mid axillary line. Pleurae (1) Wound over right pleurae lateral aspect corresponding to wound of skin, blood collected in the plural cavity. Right Lung: Gun shot wound over middle lobe with blackening and blood collected in lung tissue and thoracic cavity. Size l" x 1". Wound on media spinal aspect of middle lobe of right lung (wound of exit) size 1" x pellets recovered from the lung tissue. Left Lung: Gun shot wound over internal (Middle spinal aspect) of the lung in the middle of left upper lobe size 6/8'' x 4/8"' (wound of entrance). Blood collected in the lung tissue and thoracic cavity. No wound of exit found. 7 pellets recovered from the upper lobe of lung tissue. 3. Abdomen: Stomach was empty and small intestine contained digested gruel " eDdh ". 3. Blood collected in the lung tissue and thoracic cavity. No wound of exit found. 7 pellets recovered from the upper lobe of lung tissue. 3. Abdomen: Stomach was empty and small intestine contained digested gruel " eDdh ". 3. In the opinion of the Doctor the death was due to shock and hemorrhage in lungs caused by gun shot wounds. 4. The pellets extracted from the dead body were sealed by him and handed over to the Police. He prepared the postmortem examination report Ex.P.I (marked in the committal proceedings). 5. On 15-6-72 appellants Veera was called at the Police Station and arrested vide memo Ex. P. 9. At that time he was having the gun Ex. P. 6 with him which was taken in possession and sealed by the Police. On 19-6-72 Soma son of Mogha Bheel resident of Borribhuj produced the licence Ex. 7 of the gun Ex. P. 6 which was taken in possession by the Station House Officer vide memo Ex. P. 21. 6. After completion of investigation, charge-sheet against the appellant was filed in the court of Munsif Magistrate, Abu Road. The learned Magistrate conducted the preliminary enquiry and finding a prima facie case exclusively triable by the court of Sessions, committed the appellant to the court of Additional Sessions Judge, Sirohi to stand his trial there. 7. The learned Additional Sessions Judge, charge-sheeted the appellant for the aforesaid offence and recorded his plea. He denied the indictment and claimed to be tried. In order to substantiate its case prosecution examined 15 witnesses in all. The appellant in his statement took the plea that Pabu, Chanda, Bhoja and Jethia had attached his family members Laduda, Hira, Sanja & Caira and when he made ,, efforts to rescue them Jethia inflicted lathi blows on his head and back. In that quarrel the gun went off and hit Jethia who died instantaneously. He admitted his arrest and the recovery of gun from his possession at the time of his arrest. To substantiate. defence version two defence witnesses have been examined. The learned Additional Sessions Judge placed reliance on the prosecution evidence and held the appellant guilty for the offence of murder of Jethia and passed the judgement under appeal. It is in grievance of this judgment that the appellant has come in this Court. Ashe was not represented by any counsel, Mr. defence version two defence witnesses have been examined. The learned Additional Sessions Judge placed reliance on the prosecution evidence and held the appellant guilty for the offence of murder of Jethia and passed the judgement under appeal. It is in grievance of this judgment that the appellant has come in this Court. Ashe was not represented by any counsel, Mr. Basti Chand Bhansali, Advocate was appointed Amicus-curiae to plead on his behalf. 8. We heard Mr. Basti Chand learned Amicus-curiae and Mr. N. S. Acharya, learned Public Prosecutor for the State and gave our anxious consideration to the materials on record. 9. Mr. Basti Chand has assailed the findings of the learned trial judge on the ground that the defence version about the accidental firing and the alternative plan of the exercise of the right of private defence of person have been wrongly disbelieved by the learned trial judge. According to him. there is convincing evidence about there being a quarrel between the complainant party and the relatives of the appellant and (he appellant sustaining injuries in that incident and therefore, there was justification in his firing the gun shot which accidently hit Jeihia. 10. The learned Public Prosecutor controverting these arguments submitted that there was no cogent evidence to prove that it was in that incident that the appellant had sustained injuries or that there was any quarrel prior to his committing the crime and therefore, he emphasised that the right of private defence was not available to the appellant and the conviction has been rightly based on the reliable prosecution evidence. 11. At the very out set we may observe that the prosecution case about the appellant's firing the gun and causing injuries to Jethia which resulted in latter's death stand duly proved by the evidence of Chanda (P W 3), Bhoja (P.W. 4) and Soma (P. W. 6). Witnesses Pabu (P. W. 1) and Bhaga (P. W. 5) who on hearing the report of the gun had immediately rushed to the place where Jethia was lying and were informed by the bystanders about the offence committed by the appellant. Relevant it is to note that the appellant has not denied the fact of gun Ex. P. 6 belonging to him and its being taken by the Police from his possession at the time of his arrest. Relevant it is to note that the appellant has not denied the fact of gun Ex. P. 6 belonging to him and its being taken by the Police from his possession at the time of his arrest. He has also not denied the allegation of firing of the gun at the time of the incident and its hitting Jethia and his sustaining fatal injuries on that account. The prosecution case to this extent having thus been duly established by the eye witnesses and the circumstances of the case, the only point remaining for determination is whether the defence version .about the accidental firing or the appellant' committing the crime in exercise of the right of private defence of person is believable and there is ground for assailing the judgment of conviction passed by the learned trial judge. 12. So far as the accidental firing is concerned we are inclined to say that there is no consistent plea of the appellant to that effect. No suggestion about the accidental firing has been made to the prosecution witnesses. The circumstances of the case and the nature of the injuries also do not suggest that there might have been accidental firing. 13. We will now discuss the plea of right of private defence of person. According to the defence version there was a quarrel between Jethia, Pabu and others of the complainant side and the sons of Hira and Soma who happened to be the family members of the appellant. This defence version has been suggested to the prosecution witness and on denial, their attention was drawn to their previous statements in the committing court and they have either tried to explain that version or denied the same. Another importanl factor to be taken note of while discussing the defence version is the medical evidence of Dr. Mangal Singh who had examined the injuries of appellant Veera on 16-6-72 at the requisition of the Station House Officer, Rohida. 14. We will first discuss the oral evidence led by the prosecution as well as by the defence with a view to find out whether there was any quarrel between the parties prior to the gun fire by the appellant. 14. We will first discuss the oral evidence led by the prosecution as well as by the defence with a view to find out whether there was any quarrel between the parties prior to the gun fire by the appellant. Chanda (P. W. 3) on being questioned about there being any quarrel between Udia, Laduda and Hira has stated that prior to the gun fire he had heard that a quarrel ensued between them which resulted in a beating with lathis but he had not seen any thing. He also could not say whether Jethia participated in that quarrel or not. Bhoja (P. W. 4) in his cross examination has denied the suggestion about there being any hot altercation between the appellant and the deceased prior to the gun fire. His attention was drawn to portion A to B of his committing court statement where he has deposed that he himself along with Chanda, Jethia & Veera had sat down to take food and then Veera fired the gun. The witness admitted to have deposed so and explained that Jethia and Veera were sitting and then got up and then Veera asked Jethia that if he did not restrain himself he would fire the gun. Soma (P. W. 6) has admitted in cross-examination that there was hot altercation amongst Laduda s/o Hira, Lachhia, Sanja & Vijja, Jetha, Pabu and Moja and they had exchanged abuses but no beating took place amongst them. Attention of the witness was drawn to portion A to B of his committing court statement where he had deposed that Hira's son and Sawa had sustained lathi blows. The witness denied to have stated like that and deposed that there was hot altercation for a little while and appellant Veera had not joined it. The admissions made by these witnesses in their statements before the committing court about a hot altercation and exchange of abuses immediately before the occurrence clearly indicate that their versions at the trial that all of a sudden Veera appeared at the scene and fired a shot at Jethia is not true. It is evident that the prosecution witnesses have made deliberate efforts to conceal the facts which would have thrown light on the origin of the quarrel. It is evident that the prosecution witnesses have made deliberate efforts to conceal the facts which would have thrown light on the origin of the quarrel. The reason for suppression of real facts appear to be that the appellant sustained injuries at the time of the incident and the prosecution has not only failed to explain those injuries but the eye witnesses even denied to have seen any injury on the person of the appellant at that time. 15. Laduda (D.W. 1) and Hira (D.W. 2) have been examined to substantiate the defence version. Their presence at the time of the incident has been admitted by the prosecution witnesses. The prosecution case in the committing court was about the quarrel between the complainant party and the sons of Hira and Sewa. Defence witnesses are the sons of Sewa. This being the position it is evident from the. prosecution and the defence testimony, that there was no sudden firing by the appellant without there being any cause for the same. The careful scrutiny of the evidence led by both the sides taken as a whole clearly indicates that there was some quarrel and hot altercation between the parties and lathis were used causing injuries to the appellants amongst others. This is correct that there is no medical evidence of Hira oi any body else except the appellant sustaining lathi blows. But so far as the injuries sustained by appellant Veera are concerned, besides the oral evidence of Dr. Mangal Singh who had examined the appellant on 16-6-72 at the requisition of the Station House Officer, Police Station, Rohida. Doctor had noted following injuries on the person of the appellant:- 1. Lacerated wound with blood clotted wound on healing stage over fronto parietal region in the middle 3,1/2" above glabella size 2" x ⅛" x ⅛", 2. Lacerated wound with blood clotted wound on healing stage over scalp in between 2 parietal aminances. Size 11/2" x ⅛" x ⅛". 16. The Doctor has opined that both the injuries were simple and caused by blunt weapon. He prepared the injury report Ex. D. 1. The duration of the injuries according to the Doctor was of six days. This connects the injuries of the appellant with ' the incident because the incident had taken place on 10-6-72 i. e. six days prior to his medical examination. He prepared the injury report Ex. D. 1. The duration of the injuries according to the Doctor was of six days. This connects the injuries of the appellant with ' the incident because the incident had taken place on 10-6-72 i. e. six days prior to his medical examination. It would also be relevant to refer the statement of Govind Singh (P. W. 14) the Station House Officer, Rohidr who had arrested the appellant on 15-6-72 and deposed that at the time of the arrest there were three blood clotted injuries on the head of the appellant Veera which have been mentioned by the witness in the arrest memo Ex. P. 9. 17. It being duly established that the appellant had sustained injuries in the incident it was incumbent on the prosecution to explain the injuries on the body of the appellant. The failure of the prosecution to give reasonable explanation for the injuries on the person of the appellant throws a considerable doubt on its case and probably the defence version that the deceased was shot at by the appellant in exercise of the right of private defence of person. 18. Chanda, Bhoja and Soma all the three eye witnesses have been questioned on this point and all of them have denied to have seen any injury on the person of the appellant Veera at the time of the incident. The prosecution witnesses thus concealing such an important factor render their evidence unbelievable. We are, therefore, of the opinion that this lacuna on the prosecution side to bring the true facts before the court and to explain the injuries sustained by the appellant in the incident is a strong circumstance which taken together with the cogent, convincing evidence about there king a quarrel between the parties leads us to the conclusion that the defence story about there being hot altercation and exchange of abuses and inflicting lathi blows by the complainant party and the appellant sustaining injuries therefrom and then shot king fired by the appellant is a plausible and reliable story. 19. The next question emerging for answer is whether the injuries sustained by the appellant were of the type so as to justify his act of causing the gun shot injuries to Jethia. 19. The next question emerging for answer is whether the injuries sustained by the appellant were of the type so as to justify his act of causing the gun shot injuries to Jethia. While deciding this point it will also be taken note of as to whether it was after sustaining the injuries that the appellant had fired the gun or prior to that. So far as the second point is concerned, we need not pause much because the prosecution witnesses have stated that just after firing, the appellant had taken to heels. Hence, there was no occasion for the other side to cause any lathi blow to the appellant thereafter. 20. The learned Public Prosecutor has strenuously contended that even if the defence version about the appellant sustaining lathi injuries and thereupon firing the gun is believed still the nature of the injuries i. e. two simple injuries by blunt object could not entitle appellant to fire the gun which in the normal course was bound to take the life of the victim. 21. The nature of the injuries and weapon used against the accused is a factor which plays an important role in the case where the plea of right of private defence is either specifically taken or is spelt from the evidence or the circumstances of the case. 22. As per provision of Section 100 Indian Penal Code, Cl. II the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailant, if the assault is such as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. 23. Thus it is clear that it is not only sustaining the grievous hurt that brings the case of the accused within the ambit of section 100 Indian Penal Code but even an apprehension of the grievous hurt may extend the right to voluntary causing the death or any other harm to the assailant. 24. In the case on hand the two injuries sustained by the appellant are of course simple in nature and caused by blunt object, but one of them is over the front parietal region and the other is over the scalp. 24. In the case on hand the two injuries sustained by the appellant are of course simple in nature and caused by blunt object, but one of them is over the front parietal region and the other is over the scalp. When the appellant had sustained lathi blows on the vital parts of his body, there must have been apprehension of sustaining grievous injuries and in the circumstances he was placed in, the firing of a single gun shot by the appellant cannot be said to be in excess of exercise of the right of private defence of his person. 25. In this view of the matter, we are inclined to hold that prosecution has failed to prove beyond reasonable doubt that the incident had taken place in the manner alleged by it. On the other hand from the close and careful scrutiny of the entire evidence on the record and from the failure of the prosecution to explain away the injuries on the vital part of the body of appellant at the time of the incident, it is highly probabilised that the appellant fired a shot from his gun in exercise of the right of private defence of his person, In such circumstances, we find ourselves unable to agree with the findings of the learned trial judge that no right of private defence had accrued to the appellant. 26. As a result of the above discussion, we accept the appeal and set aside the conviction and sentence passed against the appellant and acquit him of the charge of murder. He is in jail, He will be at once be set at liberty if not required in any other case. Sd/- K.D. Sharma, A. C.J. Sd/- K. Bhatnagar, J. *******