JUDGMENT 1. - The accused-appellants and the deceased are brothers being the sons of Bheru Singh. Bheru Singh married twice resulting in birth of seven sons. Accused, "Udai Singh and Ishwar Singh are from the first wife, and deceased Rewat Singh, injured Hanuman Singh, along with Man Singh, Lal Singh and Bajrang Singh are from the second wife. Bheru Singh died about three years prior to the date of the incident. A field, Gwawalla was mutated in the name of six sons, and the seventh son, Udai Singh was excluded. The prosecution case is that Udai Singh took legal proceedings for getting mutation and on the day of the incident went to the field among with others and was constructing a hut. It was alleged that this field was in the possession of Rewat Singh, deceased, and was ploughed by him before two days, but again ploughed by the accused on the day of the occurrence. 2. According to the prosecution, Rewat Singh and Hanuman Singh stopped the accused from constructing the hut, and the accused under the pretext talk of compromise, started beating Rewat Singh and Hanuman Singh, with gun, axe, iron-rods and lathis. Both Rewat Singh and Hanuman Singh received a number of injuries. They were taken to the Likal Hospital. They were then taken to the Sikar Hospital. The police came there and registered a case. While Rewat Singh was being taken to Jaipur, for treatment, he died on June 14, 1977. 3. After the investigation a Challan was filed in the court of the Chief Judicial Magistrate, Sikar, who committed these accused, Udai Singh, Tej Singh, Prahlad Singh, Kan Singh Jhabar Singh and Kalyan Singh to face their trial under Sections 302, 307, 141 and 148 of the Indian Penal Code. 4. The learned Sessions nudge, Sikar, examined 16 prosecution witnesses, and accused examined five witnesses in defence. 5. The fact that Rewat Singh was killed, and Hanuman Singh was injured is not in doubt and dispute, and therefore, I am not required to discuss the evidence in relation to this aspect of the case. The learned Sessions Judge, after a thorough discussion of the evidence, acquitted accused Kan Singh, Jhabar Singh and Kalyan Singh, but, convicted Udai Singh, Tej Singh and Prahlad Singh. Accused Udai Singh, Tej Singh and Prahlad Singh have filed this appeal against their conviction and sentence, which are as under:- 1. The learned Sessions Judge, after a thorough discussion of the evidence, acquitted accused Kan Singh, Jhabar Singh and Kalyan Singh, but, convicted Udai Singh, Tej Singh and Prahlad Singh. Accused Udai Singh, Tej Singh and Prahlad Singh have filed this appeal against their conviction and sentence, which are as under:- 1. Udai Singh ) Under Section 304 part (2), 325 and 323/34, I.P.C. Rigorous imprisonment for 7 yrs., 2. Prahlad Singh ) 3 yrs. and 4 months respectively, with a fine of Rs. 50/- 3. Tej Singh ) Under Section 304 part (2), 325 and 323/34, I.P.C. Rigorous imprisonment for 4 yrs. and a fine of Rs. 50/-. 6. All the accused were acquitted under Sections 302/149, 307/149 and 148 of the Indian Penal Code. 7. The learned counsel-appellant has argued that the conviction of the three accused-appellants is based on the sole testimony of Hanuman Singh, PW 3, who has been held to be trustworthy and reliable witness, by the learned Sessions Judge. The learned Sessions Judge has discarded and disbelieved the testimony of all other eye-witnesses. 8. It was submitted that when the conviction is based on the testimony of a single witness, the courts have insisted that he must be a person of sterling worth and his testimony should inspire confidence of truth. 9. Mr. Maloo, the learned counsel for the accused-appellant submitted that so far as Tej Singh is concerned, even Hanuman Singh has said nothing, and it is a case of no evidence. 10. The second limb of the submission of Mr. Maloo is that the lower court itself has disbelieved the prosecution case that the land in dispute was in the possession of the complainant party, with a positive finding that it was in the possession of the accused, and the accused had ploughed the land, and was constructing a hut. It was pointed out that the lower court has further disbelieved the version given by Hanuman Singh that the accused party came with weapons to attack the complainant party. 11. At the end of the discussion, the trial court has discussed the provisions regarding the right of private defence of person and property, contained in Sections 96, 97, 99, 100 and 102 in Para No. 74 of the Indian Penal Code. 11. At the end of the discussion, the trial court has discussed the provisions regarding the right of private defence of person and property, contained in Sections 96, 97, 99, 100 and 102 in Para No. 74 of the Indian Penal Code. It then without discussing the facts constituting the right of private defence of person and property, and without believing or disbelieving them abruptly jumped to a conclusion that whatever loss has been caused to the hut, was not such, for which, the accused should have claimed the right of private defence. The Amicus Curiae argued that the accused could have gone to the police, as there was enough time, more so, because, they had already ploughed their land, and whatever had to happen, has happened. It then held that the accused exceeded the right of private defence. 12. After and elaborate discussion from para 39 to para 58, the evidence of Hanuman Singh has been criticized and from to para 59 to para 73 all other evidence has been criticized and even held to be of no use to the prosecution. 13. Mr. Maloo submitted that so far as the right of private defence of person or of property is concerned, once it is held. the accused were in possession of the field at the relevant time of the incident, and the complainant party came with lathis and when it is further found that the accused received a number of injuries, it would be impossible to hold that in such a situation they had time to go to the Police Station and seek their help. It was also argued that the right of private defence was properly exercised by the accused, and it was not exceeded, because, the complainant had two lathis with them, and the accused received a number of lathi blows, which have not been explained by the prosecution. 14. It was also argued that the right of private defence was properly exercised by the accused, and it was not exceeded, because, the complainant had two lathis with them, and the accused received a number of lathi blows, which have not been explained by the prosecution. 14. The learned Public Prosecutor opposed the appeal, but, ultimately on a comprehensive consideration of the findings of the learned Sessions Judge, realised that once it is held that the accused were in possession of the agricultural field and were constructing a but and that they received injuries, the conclusion of the learned Sessions Judge contained in para No. 74 that they could have gone to seek help from the police as they had enough time, and that they exceeded the right of private defence, is difficult to be sustained. 15. I have given a thoughtful consideration to the detailed arguments made before me by Mr. Maloo, the learned counsel for the accused-appellants and Mr. Mathur, the learned Public Prosecutor. The judgment of the learned trial court was read in details and so also the evidence of the material witnesses including PW 3, Hanuman Singh. 16. Undoubtedly, Rewat Singh was killed and Hanuman Singh received a number of injuries in this incident. It is also proved on the record that the accused Udai Singh and Prahlad Singh both received a number of injuries as proved by Ex.D. 4 and Ex. D.5 the medical evidence of Dr. B.P. Jangid, PW 13. These injuries are as under:- Ex. D-4 : "1. lacerated wound 1,1/4" x ⅛" x bone deep on the left parietal eminence. 2. Contusion 21/2" x 1" with lacerated wounds 3/4" x 1/10" x 1/4" X 1/10" x 1/4" above the left eye. 3. Lacerated wound 1, 3/4" x ⅛" x bone deep on the frontal region near the middle line upper part. 4. Contusion 11/2" x 3/4" on the back of right hand. 5. Contusion 2" x 1" on the lateral aspect of left lower ⅓rd, 6. Diffused swelling on whole of the right index finger". Ex. D.5 : Contusion 1" x 1" with lacerated wound 1/4" x ⅛" x ⅛ on the scalp in between the parietal eminences. 2. Contusion 3/4" x 1/4" on the back of the root of left little linger. 3. Linear abrasion 4" long on the back of right forearm in the middle. 4. Ex. D.5 : Contusion 1" x 1" with lacerated wound 1/4" x ⅛" x ⅛ on the scalp in between the parietal eminences. 2. Contusion 3/4" x 1/4" on the back of the root of left little linger. 3. Linear abrasion 4" long on the back of right forearm in the middle. 4. Abrasion 1/4" x 1/10" on the back of right forearm lower part. 5. Complaint of pain the neck and scalp left side but there was no mark of any external injury." Udai Singh received six injuries and Prahlad Singh, five injuries. The injuries are on the vital part of the body, being the parietal region and over the eye and frontal region. These injuries could not have been self-inflicted not it is the case of the prosecution. Contrary to it, the prosecution witnesses including Hanuman Singh exhibited utter ignorance about these injuries. 17. A careful study of the evidence and the findings of the learned Sessions Judge shows that he has mostly termed Hanuman Singh as a her. In the first place he has held that the field was ploughed by the accused, and Hanuman Singh's version is that before two days, Rewat Singh ploughed this field cannot be believed. The lower court has also held that Udai Singh was justified that Ishwar Singh and Udai Singh who were born by the same mother were in possession of this part of the field, which is proved by Ex. D. 6 and Ex. D. 7. The trial court then found that the accused never intended to fight nor they had made any preparations for the fight, because, if they would have done so, then as soon as Hanuman Singh and Rewat Singh came, the fight would have started. it further held that if the accused had any intention of fighting then Kan Singh and Jhabar Singh would not have caught hold of the cart and stood there as spectators. 18. It is interesting to note that the learned Sessions Judge himself found that the accused were six and the complainants were two, and therefore if they had any intention to beat them, there was no occasion to do the fraud as alleged by the prosecution. 19. Then comes the story of the gun-fire by Udai Singh on Hanuman Singh, which, as per the version of Hanuman Singh hit his head. 19. Then comes the story of the gun-fire by Udai Singh on Hanuman Singh, which, as per the version of Hanuman Singh hit his head. It is not without significance that the medical evidence completely rules out any possibility of any gun-shot. on the head of Hanuman Singh. The lower court has treated this story as false. The lower court was so much distressed at the falsehood of Hanuman Singh that in para 46, it mentioned that there is a big mountain of falsehood, created by Hanuman Singh's statement, and the courts duty is to search out some pearls of truth from the mountain of falsehood, It then completely discarded the story of firing a gun on Hanuman Singh, and the injury by gun-fire. There is no room for doubt that they were the persons who inflicted injuries to Hanuman Singh and participated in the incident. Immediately thereafter, the trial court again disbelieved Hanuman Singh in para 50 and observed that the court was not at all prepared to believe that Udai Singh had asked the others to kill Hanuman Singh, because had it been so, looking to the facts and circumstances of the case, nothing could prevent that Udai Singh of his companions from killing Hanuman Singh on the spot. 20. The learned Sessions Judge also disbelieved Hanuman Singh about the explanation that accused Udai Singh and Prahlad Singh received injuries by coming in contact with some throned fencing. The court then comes to the conclusion that Hanuman Singh has perjured on this point as the accused must have received injuries from Hanuman Singh and Rewat Singh. Even regarding the story of the iron-rod, the statement of Hanuman Singh was that it was used by one of the accused by changing the hands. Even regarding the injuries of Rewat Singh and the crucial head-injury of Hanuman Singh, it is revealed from the statement of Hanuman Singh, Ex.P. 10 that the police had written reverse order because, Prahlad Singh first gave a 'Saval' blow. The trial court also observed that this witness was repeatedly asked whether Prahlad Singh used a lathi or not, but the witness avoided the question and did not give any direct answer. The trial court also observed that this witness was repeatedly asked whether Prahlad Singh used a lathi or not, but the witness avoided the question and did not give any direct answer. It appear that a note was made by the trial court at the time of the statement of this witness, inside the statement itself, and this shows that the demurer of the witness is very questionable and objectionable. He has resided from First Information Report, Ex-D. 1 at a number of places and by portions, C to D, to D to E, E to F, F to G and G to H resile by the witness has been proved by the Investigating Officer. 21. It would thus be seen that both by the findings of the trial court as well as an independent appraisal of Hanuman Singh, Hanuman Singh cannot be said to be a witness of sterling worth, on the sole testimony of whom, the conviction can be sustained. Their Lordships of the Supreme Court in Periyasami v. State of Madras, AIR 1967 SC 1027 have cautioned to the courts from placing reliance on such witnesses, specially when they give conflicting statements. In Karunakaran v. State of Tamil Nadu, AIR 1976 SC 383 their lordships of the Supreme Court have again observed that when the conviction is based on the testimony of a sole eye-witness, the court must ensure that this witness, at least is of sterling worth. 22. I am convinced that PW 3, Hanuman Singh cannot be said to be a witness of sterling worth, far from that he is a person who has little love for truth. His version read as a whole convinces one that he is trying to build a bridge without there being a river. The fabrications are too patent. Right from the point of possession of the land to the ultimate result of the fatal blow on the head of Rewat Singh, it is unfortunate that he has displayed scant regard for truth and given an imaginary version of the incident. That being so, the conviction passed on the sole testimony of Hanuman Singh, can be upheld. Right from the point of possession of the land to the ultimate result of the fatal blow on the head of Rewat Singh, it is unfortunate that he has displayed scant regard for truth and given an imaginary version of the incident. That being so, the conviction passed on the sole testimony of Hanuman Singh, can be upheld. It is really curious that the learned Sessions Judge has even convicted Tej Singh even though, not even a single witness has named him and even the star witness Hanuman Singh during the fabrication of the falsehood of a mountain, as noticed by the learned Sessions Judge, has not dared to name him. The reason given for his conviction that merely because, he admitted his presence on the spot during the incident, is unknown to Criminal jurisprudence and can be safely termed as perverse. 23. Even on the point of right of self defence of person and property, the judgment of the lower court cannot be sustained. In Mana v. State of Rajasthan, 1978 RLW 245 a Division Bench of this Court, to which I was also a party considered in detail, the question of right of private defence, and held even before the enactment of the Indian Penal Code, Nanu and Brihaspati put the right of private defence to such a high pedastal that if a person fails to defend from an "Antatayin", who comes to strike raising his weapon, he would become guilty of murder for failure to defend herself. 24. The Hon'ble Supreme Court has repeatedly emphasised the same principal in a number of judgments. In the instant case, it is proved on record and it is the finding of the lower court that the accused were in the possession his field, and that they were constructing the but after they had ploughed their field. The complainant party came with lathis, and wanted to stop them from constructing the hut. How it can be accepted that when the complainant party came with lathis and wanted to stop the accused from constructing the but after committing criminal trespass in the field, the accused would surrender and suffer the injuries which have been caused to them. 25. The learned Sessions Judge in one sentence brushed aside valuable the right of private defence of property, and sent the accused to jail, when there was no occasion for the same. 25. The learned Sessions Judge in one sentence brushed aside valuable the right of private defence of property, and sent the accused to jail, when there was no occasion for the same. The right of private defence of person and property, both is well-established in this case as unipsit is bald that the accused were having a designed plan to attack the complainant party, a point on which the lower court itself has given a finding in favour of the accused, it cannot be said that the accused started beating first. Once the process of beating starts and the lathis were hurled on the vital parts of the body of the accused including the parietal region and the frontal region, it could not have been expected that they would place themselves in a position of a person who would weigh their blow which they want to use in defence in golden-scale and then formulate them. It does not require much argument to hold that the accused were also entitled to get the benefit of the right of private defence. 26. The result is that the accused are entitled to acquittal. The appeal is, therefore, accepted. All the three accused are acquitted. They are on bail, and need surrender.Appeal allowed. *******