G.M. Lodha, J.—The straying of the goats of the accused resulting in damage to the crop to the complainant resulted in the incident, which has given rise to cross cases between the parties. The present one is an appeal by the accused Ram Chandra who has been convicted under section 307 I.P.C. by the Sessions Judge, Tonk and sentenced to two years rigorous imprisonment and a fine of Rs. 200/-and imprisonment of two months rigorous imprisonment in default of payment of fine. 2. The prosecution case as per the F.I.R. lodged by Ganga Ram in Thana Baroni at 12.30 noon on 20.1.1978 mentions that on 19.1.1978 at about 6. p.m. Gopal went; to the house of Mohariya alias Morpal and Ramchandra for reprimanding them for the damage caused to the crop by the goats of Gopal and Mohariya alias Morpal. On this the accused Mohariya alias Morpal and Ramchandra etc. started abusing Gopal. Gopal came back to his house. This was followed by an attack by the accused Ramchandra and others who came with lathis and Gandasi following Gopal. Ramchandra gave a Gandasi blow to Gopal on the head and Molya gave a lathi blow to Gopal on the eyelid. Nathu accused gave a lathi blow to Ramniwas and Mooyal gave a lathi blow to Ramniwas on the leg. Kalu gave a lathi blow to Gopal, On making hue and cry Kajod and Ramdeo came and rescused, otherwise the accused would have killed the complainant party. 3. After usual investigation the accused Morpal, Ramchandra, Moolya, Kishna, Kalu and Nathu-were challaned and after commitment they were tried by the Sesssions Judge. Except Ramchandra all were acquitted and Ramchadra has been convicted as mentioned above. It is not necessary to narrate the statement of each witness. It is enough to mention that the deduction drawn by the learned Sessions Judge contained in para No. 3. goes to show that he has come to the conclusion on detailed discussion of the evidence that Morpal accused had goats which damaged the crop of the complainant party. Due to this the complainant party went to the house of the accused persons to reprimand them and at this place the incident happened. goes to show that he has come to the conclusion on detailed discussion of the evidence that Morpal accused had goats which damaged the crop of the complainant party. Due to this the complainant party went to the house of the accused persons to reprimand them and at this place the incident happened. In substance the learned Sessions Judge has unequivocally come to the conclusion that the place of occurrence is the house of the accused persons and the incident happened when the complainant reached the house of the accused and reprimanded them. This conclusion of the Sessions Judge is of great importance because the entire submissions of the learned counsel for the appellant are based on it. 4. Having come to the above conclusion, the learned Sessions Judge thereafter mentions that the accused have not proved who was the aggressor and from the evidence recorded in the case, it is not possible to decide as to who was the aggressor and who started quarrel. He then blames the accused party and his counsel for not making any effort to get the cross case committed to the Sessions Court. On these thin slippery premises, the learned Sessions Judge rejected the case of the accused that the injuries were caused to the complainant party while exercising the right of private defence. 5. I have got no hesitation in holding that the above approach of the learned Sessions Judge cannot be termed as correct and proper in a criminal case of this type. 6. The broad features of the case which are well proved on the record now require to be mentioned. The injuries caused to the complainant party consisting of two persons Gopal and Ramniwas as observed by P.W. 10 Dr. Krishna Behari are as under: 1. Incised wound bleeding present 2 x 1/3" x 1/2" into bone deep right side of the skull just near the mid line 1" behind the heir line. 2. Fissured fracture which is visible through the injury No. 1, 3" long right parital bone corresponding to injury No. 1. 3. Haematoma black eye 2" x 2" both lids of both eyes and fore-head. 4. Bruise 5" x 1" outer and middle part of left arm. 5. Bruise 3" x 1" right forearm middle and back. Ramniwas: 1. Lacerated wound 1/2" x 1/10" x 1/10" lobule of righ ear starting from the hole of earring. 2. 3. Haematoma black eye 2" x 2" both lids of both eyes and fore-head. 4. Bruise 5" x 1" outer and middle part of left arm. 5. Bruise 3" x 1" right forearm middle and back. Ramniwas: 1. Lacerated wound 1/2" x 1/10" x 1/10" lobule of righ ear starting from the hole of earring. 2. Bruise 2" x 1" outer and middle part of the left side. 3. Bruise 2" x 2" left calf. 7. The injuries caused to the accused party have been proved by the same statement of Dr. Krishna Behari. According to him, injuries were caused to all the accused who are six in number and they are as under: Accused Ramchander: 1. Lacerated wound 2" x 1/4" into scalp deep left side of middle of scalp 1" away from the mid line. 2. Lacerated wound 1-1/2" x 1/4" into scalp deep middle of the scalp in the mid line. 3. Lacerated wound 1" x 1/4" into scalp deep, mid line of scalp near head line. 4. Bruise 3" x 1" left side of the back lower part. Accused Morpal: 1. Haematoma with abrasion 1" x 1" on the scalp in the mid line near head line. Accused Nathu: 1. Bruise 3" x 2" back of right elbow. 2. Abrasion 1" x 1/2" in the middle side of left fore-arm. 3. Abrasion 1/2" x 1/4" lower 1/3 of middle side of left fore arm. 4. Bruise 3" x 1" right scapular region. Accused Moolchand: 1. Bruise with abrasion 2" x 2" outer and middle part of right arm. Accused Kishan Lal: 1. Lacerated wound 1/2" x 1/4" x 1/8" back of right middle finger. 2. Bruise 2" x 2" back right palm. Accused Kalu: 1. Bruise 2" x 2" left scapular region upper part. 2. Pain on the buttock on left side. 3. Lacerated wound 1/2" x 1/4" x 1/10" outer part of left eyebrow. 8. It would thus be seen that Ramchandra accused had two lacerated wounds in addition to a bruise and all the three injuries were caused on the scalp. Accused Kishan Lal and Kalu each had one lacerated wounds in addition to bruise and the other accused had abrasions and bruises. The fact that injuries to Ramchandra were caused on scalp i.e. head, is not without significance. This shows that Ramchandra was given three lathi injuries on the head. 9. Accused Kishan Lal and Kalu each had one lacerated wounds in addition to bruise and the other accused had abrasions and bruises. The fact that injuries to Ramchandra were caused on scalp i.e. head, is not without significance. This shows that Ramchandra was given three lathi injuries on the head. 9. It is true that Gopal received five injuries. According to the statement of the doctor injury No. 3 was simple and was effect of injury No. 1. Injuries No. 4 and 5 were also simple by blunt weapon and injuries No. 1 and 2 were caused by a single blow. Injury No. 2 was grievous and was caused by a sharp weapon. Rmaniwas received one lacerated injury near the ear in addition to the bruises. I would deal with the effect and implications of the injuries a little later Apart from the deduction of the learned Sessions Judge that the incident happened at the house of the accused persons, it is not without significance that P.W. 4 Bhoora in clear and categorical terms has admitted in cross-examination that all the members of the complainant party took lathis and they reached the house of the accused with lathis. Though in the examination-in-chief he also stated the story of the prosecution in a parrot like manner that Gopal returned back from the house of Morpal accused & when Gopal reached his house back, then Morpal, Ramchandra, Nathu, Moolya, Kishna and Kalu came to attack Gopal with lathis and Gandasis. However, this prosecution story has been completely falsified so far as it relates to the place of occurrence and the immediate cause of the incident in his cross-examination when the had to concede that all the members of the complainant party went with lathis to the house of the accused and the incident took place at the house of the accused. It is not without significance that even in cross-examination he first of all wanted to stick to the false story regarding the manner of incident and the place and scene of occurrence by refusing to accept the suggestion that all the persons of the complainant party took lathis and went to the house of the accused, but he soon after succumbed to truth under the fire of cross-examination. 10. 10. I have mentioned in details the statement of Bhoora in order to emphasise that the entire prosecution story stands falsified so far as proximate cause, scene, place and the method and manner of the incident as narrated by the prosecution, is concerned. This falsification is not without significance and is of great importance. 11. In a given case the court may not attach much importance to shifting of the place of occurrence if it is slight and unintentional and without design. This is not so in the instance case. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence and the present case is a typical case which amply illustrates the importance of the same. 12. In case the place of the occurrence would have as alleged by the prosecution i.e. the house of the complainant party, then the entire complexion of the case would have changed. There would have been no hesitation in holding that even though the complainant partys persons might have reprimanded the accused for staring their goats, the accused party had no right to go back with lathis and Gandasis to attack the complainant party after they have returned back to their house. In that situation this court would have held that even if the accused party was aggrieved by the reprimand or causing of some injuries by the complainant party, they could not have taken the law in their hands, and they should have gone to the police station to make a complaint, if they were beaten. However, this has not been without significance that the prosecution was conscious of this possibility and therefore they changed the story so that the accused may be deprived of the plea of right of private defence and it is on account of this crucial feature of the case, that the scene of the incident, manner of the incident and the proximate cause of the incident, all assumed great importance. 13. It can be said without any fear of contradiction that in a case of the present nature both the parties have received injuries as per the medical evidence and no less than six persons of the accused party have received injuries consisting of lacerated wounds on the head, a vital part of the body. 13. It can be said without any fear of contradiction that in a case of the present nature both the parties have received injuries as per the medical evidence and no less than six persons of the accused party have received injuries consisting of lacerated wounds on the head, a vital part of the body. The crucial question to be determined would be about the right of self defence. This would depend upon the place and scene of the occurrence and the proof about the fact as to who were the aggressors. 14. It is also not without significance that the prosecution witness Gopal who is principal witness, Ramniwas who again is one of the injured, Bhoora and Bhuwana all have maintained conspicuous silence about the injuries caused to the accused persons. They have denied the suggestion that they took the lathis and went to the house of the accused persons. Gopal in his cross-exami-( nation has expressly denied that he along with Ramniwas, Gangaram, Kajod, Bhoora, Gajanand, Bhuwana and Moolya went to the house of the accused with lathis and they entered the house of the accused persons and gave them beating. The defence in this particular case has put its case squarely and precisely to Gopal and other witnesses. Gopal even denied that any injury was caused to the accused. Gopal went to the extent of denying the filing of a criminal case by the accused persons, a fact which has been admitted by other witnesses. His case was that he went back to his house and concealed himself in the house, but was forcibly taken out by the accused persons. It would thus be seen that Gopal, the principal star witness of the prosecution has not only denied the existence of any injuries on the persons of the accused, a fact which has been admitted even by the prosecution witness Dr. Krishna Behari but entirely changed the sequence of events, the scene of occurrence and tried to completely run away from admission of any allegation that either they had any lathi or that they caused any injuries. 15. Krishna Behari but entirely changed the sequence of events, the scene of occurrence and tried to completely run away from admission of any allegation that either they had any lathi or that they caused any injuries. 15. The above broad features of the case have been mentioned by me to avoid the narration of the entire prosecution story and the evidence as a whole because I am convinced that the instant case is one of those in which it is proved that accused Ramchandra did cause injury to Gopal complainant and at the same time it is further proved that the injuries were caused by the accused persons at the time when complainant party including Gopal and Rama attacked them with lathis at the house of the accused persons. 16. In view of the above finding, the sole question for consideration is whether the conviction of the accused under section 307 I.P.C. can be sustained or the accused are entitled to right of self defence, as argued by Mr. Tikku, learned counsel for the appellant. 17. In Lakshmi Singh vs. State of Bihar(l), their Lordships of the Supreme Court considered the effect of non explanation of the injuries sustained by the accused and observed that this important circumstance can lead to the following inference dependant upon the facts of each case : "(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version, (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable, (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. AIR 1968 SC 1281 and AIR 1975 SC 1674 Rel. on. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes mush greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. There may be cases where the non explanation of the injuries by the prosecution may not affect the prosecution case. There may be cases where the non explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. AIR 1975 SC 1478 , Rel. on. Held, on facts and circumstances that the High Court was in error in brushing aside the serious infirmity in the prosecution case regarding non-explanation of injuries sustained by the accused on unconvincing premises. The question whether the Investigating Officer was informed about the injuries was wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses was the person who examined the accused also. In view of the inherent improbabilities, the serious omissions and infirmities, the interested or inimical nature of the evidence and other circumstances, it was clear that the prosecution had miserably failed to prove the case against the appellants beyond reasonable doubt." 18. In Mana vs. State of Rajasthan (2), a division bench of this court considered in details the issue raised in respect of private defence of person and property. While doing so, this court observed that as per Russal, it is to the instinct of self preservation that this principle was born. In para 43, this court observed as under : "43. The instinct of self preservation which causes so many creatures to fight back savagely when harmed or frightened was protected in the ancient laws of all the countries. Russal in his treatise on Crimes Volume (12th Edition published in 1964) says as follows.— "......it is to the instinct of self preservation which causes so many creatures to fight back savagely when harmed or frightened that some of the peculiarities of ancient criminal law are thought to be due." The later concept according to Russal was that merely to bring about a prohibited harm should not involve a man any liability to punishment unless in addition he could be regarded as morally blameworthy and this concept was enshrined in the well known maxim "Actus non facit reum nisi mens sit rea". Thus, under the common law, in order to punish a man of a crime, two requirements were envisaged namely, that there must be both a physical element and a mental element in every crime. This has been popularly termed as "mens rea in our Indian law and there are crimes where it canont be insisted upon. However, the right of self preservation is the basic nucleus from which the right of private defence of property and person had been enacted in the LP C. under sections 96 to 106, Chapter 4 of the I.P.C." 19. In order to have a deep probe into the origin of right of private defence this court then discussed Vyavahara Mayukha, Vashishta, Manu, Katyayana Mitakhsara, Bruhaspati, Smrati Chandrika, Brahmashutra of P. V. Kane and ultimately came to the conclusion that the English people while enacting the provisions of right of private defence of person and property under the exceptions of the Indian Penal Code (Sections 96 to 106) have virtually adopted or re-enacted the laws which were prevalent here. This Court further observed that the right of private defence has withstood all tests and trials in all laws and have been recognised as since centuries back. It was in fact only a recognition of natural rights or inherent right which a human being possesses by his birth for living in the society. 20. Important and interesting discussions have been placed in paras 44 to 54 which read as under : "44, It would be interesting to know the state of ancient laws in our country. "Vyavahara Mayukha" describes first who can be called "Atata-yin "i.e., with a felonious intent. Vashistha says that an incendiary, a poisoner, one armed with a weapon, one who robs another of his wealth, one who snatches anothers field and wife, these six are "Atatayings. 45. Manu says "One may certainly kill without hesitation a man who comes upon him as an Atatayin whether he be a teacher or child or a an old man or a learned Brahamana. 46. Katyayana says "One may go on to kill another who approaches as an Atatayin (i.e. with a felonious intent) even if he be one who has thoroughly mastered the Vedas; thereby he does not incur the sin of Brahamana murder. 47. 46. Katyayana says "One may go on to kill another who approaches as an Atatayin (i.e. with a felonious intent) even if he be one who has thoroughly mastered the Vedas; thereby he does not incur the sin of Brahamana murder. 47. The ancient shastras have given great importance to the right of private defence and made it a religious duty of a person to kill a person who is an "Atatayin if he comes raising his weapon and if one fails to kill him, he would become guilty as a murderer. In the Mitakhsara, Galver says "He who kills a learned Brahaman who approaches as an Atatayin raising his Weapon to strick does not become the murderer of a learned Brahaman. He would be so if he did not kill him. 48. Brahaspati says "He who kills a Brahamana felon versed in the vedas and born of a good family does not commit a Brahamana murder he would be guilty of Brahamana murder if he did not kill him. 49. The conclusion of Smrati Chandrika is that even a Brahamana felon coming to kill a man is by all means to be slain(3).Vyavshra Mayukha of Neelkantha by P.V. Kane 1 Ed. 1933 pp. 261, 262. 50. P.V. Kane in his treatise on the history of Brahamshastra Volums III, Government Oriented Series Class B No. 16 deals with the important question of private defence of person and property as he was recognised by the Brahama-Sastra works. He also terms the invader as Atatayin (a desperate man) who is an incondiary or a poisoner or is armed with a weapon or is robber carrying away anothers wife or snatching by force a field. 51. According to Katyayane, "No blame attaches to a man who kills wicked man that are about to kill another." Sanskrit text of it is as follows.— 946- mDrkuka oq ekiuka bUnqnksZ"k.kksa u fo|rsA fuo`rkLr enkjEHkknw d:.k u o/k;sLe`r%AA dkR;k 800 q bu Le`frp% II. 52. The distinction of Brahamana and non Brahamana so much insisted upon by Manu, Vashishte, etc. in the age of Indian laws, has disappeared. The Varna theory is now a matter of history only, we are now as per the Indian Constitution and laws of the land, living in a caste-less society except recognising linguistic or religious minorities, or some reservations for the age old downtrodden and less privileged classes of the society. in the age of Indian laws, has disappeared. The Varna theory is now a matter of history only, we are now as per the Indian Constitution and laws of the land, living in a caste-less society except recognising linguistic or religious minorities, or some reservations for the age old downtrodden and less privileged classes of the society. Theere fore, what Manu or Brahaspati katyayana laid down, is to be viewed in its application to all citizens now. Even before coming into force of the Indian Constitution, Indian Penal Code introduced by the Britishers made no distinction of casts, creed and therefore our references to "Dharamashastras" made above have been made only with the precise limited object of showing that the right of private defence of person and property was not only recognised but put at a very high pedestal in the ancient Indian jurisprud-ance also. They should not be read or construed for any other purpose. 53. The above short survey of the old ancient Indian Laws which were known as "Dharamshastras" and "Smrities" would show that the English people, while enacting the provisions of right of private defence of person and property under the exceptions of Indian Penal Code (Sections 96 to 106) have virtually adopted or re-enacted the laws which were prevalent here. It goes without saying that the English Law and the Romen Law on the subject of the private defence is in no way different from the Indian Law as mentioned above. 54. Of course, the Mitakshara according to Galava puts the right of private defence to such a high pedestal that if a person fails to defend from an "Atatayin" who comes to strike raising his weapon, he would become guilty of murder." 21. It would be unnecessary to discuss in details the other decisions because the above judgment of the Honble Supreme Court and this Court covers almost the entire compass of right of self defence in which present case falls. 22. It would be unnecessary to discuss in details the other decisions because the above judgment of the Honble Supreme Court and this Court covers almost the entire compass of right of self defence in which present case falls. 22. Taking guidance and applying the above weighty observations of the Honble Supreme Court it has to be observed that in the instant case the prosecution has faulted in the following manners; (a) It has come out with a false prosecution case of aggression by the accused at the house of the complainant party; (b) It has falsely denied the true scene of occurrence which was the house of the accused; (c) It has falsely denied that the complainant party went with lathis to the house of the accused and not only reprimanded them but caused injuries to all the six accused as proved by the medical evidence; (d) It has falsely denied even the existence of the injuries on the person of the accused party; and (e) It has given no explanation about the injuries caused to the accused person. 23. The above important and glaring falsifications indulged by the prosecution are sufficient to throw out the entire prosecution case and give benefit of doubt to the accused person in this case. However, even otherwise, once it is held that the complainant party armed with lathis went to the house of the accused persons and being aggrieved by the straying of the cattle causing damage to their crop, not only reprimanded them but gave beating by lathis, then the accused party immediately gets a right to defend themselves and the right of self defence of person commences as soon as the complainant party armed with lathis attacks the accused party at their house. 24. Mr. S.B. Mathur, learned Public Prosecutor confronted with the above glaring facts and features of the case feasibly argued that in any case, accused had no right to use Gandasi because they received simple injuries. This argument taken to its logical conclusion would mean that each blow which the complainant gives to the accused should be first weighed by the accused to find out whether it causes a simple injury or a grievous injury and then in a very calm and composed manner, in which Mr. This argument taken to its logical conclusion would mean that each blow which the complainant gives to the accused should be first weighed by the accused to find out whether it causes a simple injury or a grievous injury and then in a very calm and composed manner, in which Mr. Mathur is, arguing the case sitting in the court room, the accused at that crucial time should weigh each blow hurled on them and further each blow which they want to use in the right of their private defence in the golden scales. To say the least when village rustics are confronted with lathis and are receiving lacerated wounds and that blows starts pouring, whatever weapon they can easily catch hold of, must be used to defend themselves and while doing so, neither they can weigh nor they can pose for any reason and balance the force to be used by them so that it is in proportion to the force which is being used by the complainant aggressors. Such an argument of weighing the defence blows in golden scales was rejected centuries back by all the courts and it does not require much discussion for being rejected now. I have extracted above the injuries caused to the complainant party and the accused party which shows that all the six of the accused received injuries and so far as the complainant party is concerned, only two of them received injuries. The mere fact that the accused received simple injuries and one of the complainant party person i.e. Gopal received grievous injury, is not sufficient to deprive the accused persons of the valuable, important right to self defence of person to which they were entitled in the facts and circumstances of this case. 25. The result is that this appeal deserves to be accepted on all counts as discussed above. The appeal is. therefore, accepted. The conviction of the appellant under section 307 I. P. C. is set aside and ha is acquitted. The accused-appellant is already on bail and need not surrender. The fine if paid, be refunded.