JUDGMENT 1. - This is an appeal filed by Kamru and Kallu against the judgment of the Additional Sessions Judge, Tonk, dated August 29, 1975, by which Kamru was convicted of an offence under Section 323, I.P.C. and instead of being sentenced to imprisonment at once was given benefit of Probation of Offenders Act, 1958, and released upon furnishing a personal bond in the amount of Rs. 5000/- together with a surety bond in the like amount for keeping peace and to be of good behaviour for a period of two years. By this very judgment Kallu appellant was convicted under Section 324, I.P.C. and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 200/-, in default of payment of fine to further suffer rigorous imprisonment for two months. 2. The prosecution case as disclosed in the statement of Bholu informant, (PW 4) was as follows. On October 20, 1974, at about 10 a.m. Bholu informant was going to the house of Rang Lal for taking him to Tonk city. In the way he met Bajranga, who informed him that Kallu appellant had killed a peacock and had taken it to his house. Bholu saw Rang Lal taking his bath at a nearby well. He informed Rang Lal about the incident. Rang Lal asked Bholu to call Banna who was present at some distance from tin re. However, Banna was called by Moolia and Bajranga was called for by Bholu. Thereafter, all these persons assembled in front of the house of the appellants. Rang Lal asked Kamru appellant whether his brother had killed the peacock. Kamru denied this fact but, later on, told that his brother had killed the peacock but he would not tell where the peacock was. Banna, thereupon, told Kamru appellant that he would call for the inhabitants of the village, if he failed to point out the dead body of the peacock. Kamru appellant, thereupon, got enraged and inflicted a lathi blow on the left hand of Banna. After a short while Kallu came outsider's house having armed himself with a knife. As soon as Kallu appellant came out of his house, he struck a blow on the head of Banna with a knife. He dealt a second and third blow with his knife on the hand and stomach of Banna respectively. After a short while Kallu came outsider's house having armed himself with a knife. As soon as Kallu appellant came out of his house, he struck a blow on the head of Banna with a knife. He dealt a second and third blow with his knife on the hand and stomach of Banna respectively. As a result of the blow of knife on the stomach, the intestines came out and he fell down unconscious. Blood oczed out of the stomach. Banna fell on the ground. Rang Lal had a Jeli with him with which he warded off further blows which Kallu aimed at Banna. A written report of this incident was lodged with the police at police station, Piplu the very day at 2.30 p.m by Bholu. On the basis of the first information report the Station House Officer. Piplu, registered a criminal case under Section 307, I.P.C. and took up the usual investigation into the matter. The Station House Officer rushed to the place of occurrence and prepared a site plan and a site inspection memo and took blood stained earth and sample of earth into his possession. The Station House Officer inspected the house of the appellants also and recovered a dead peacock along with its 12 feathers from a 'Kotha of the appellants vide memo of recovery Ex. P. 6. The Station House Officer then arrested both the appellants. After his arrest Kallu appellant gave the Station House Officer an information which led to the recovery of a knife which was lying buried in the boundary wall of the field of Ram Karan Jat. The Station House Officer took the knife into his possession as it was stained with blood. The knife was sealed at the spot in the presence of Motbirs. A lathi was recovered at the instance of Kamru appellant and in consequence of his information from inside the earthen container of grain lying in the house of the appellant. The knife and the lathi were put to identification in a test parade held by Rameshwar Prasad, Sub-Divisional Magistrate, Tonk. The knife was correctly identified by Mooliya son of Bhura while both these articles were identified by Rang Lal. Banna was sent to Sadar Hospital, Tonk, for medical examination oi his injuries. Dr. The knife and the lathi were put to identification in a test parade held by Rameshwar Prasad, Sub-Divisional Magistrate, Tonk. The knife was correctly identified by Mooliya son of Bhura while both these articles were identified by Rang Lal. Banna was sent to Sadar Hospital, Tonk, for medical examination oi his injuries. Dr. Jagdish Chandra Gehlot examined the body of Banna and found the following four injuries on his person:- (i) incised wound 21/2" x 1/2" x 1/2" on the back of the elbow; (ii) incised wound 1" x 1/4 x 1/4" on the scalp in the mid-line; (iii) penetrating wound obliquely on the right side of the abdomen at the level of umbilicus. Omentum was coming out of the wound; (iv) swelling on the left hand 4" x 2". Injuries Nos. 1, 2 and 3 were caused by a sharp-edged weapon, while injury No. 4 was inflicted with a blunt weapon. In the Opinion of the Doctor, injuries Nos. 1, 2 and 4 were simple in nature, while injury No. 3 was grievous. The duration of the injuries was about 6 hours and the condition of the injured was serious at the time of his medical examination. He was admitted to the Hospital and was operated upon for injury No. 3. The Doctor further opined that injury No. 3 could have been fatal if timely medical aid was not given. The Station House Officer sent the dead peacock also to the Officer Incharge, Veterinary Hospital Tonk, for postmortem examination. The Doctor examined the dead peacock and opined that the cause of its death was severance of its head from body with a sharp-edged weapon within more than 24 hours and less than 48 hours The Station House Officer collected other necessary evidence in the case and eventually filed a charge-sheet against both the appellants under Section 307, I.P.C. in the court of the Chief Judicial Magistrate, Tonk. The learned Chief Judicial Magistrate, upon finding a prima facie case exclusively triable by the court of Sessions, committed the appellants to the court of the Additional Sessions Judge. Tonk, for trial in accordance with law. The learned Chief Judicial Magistrate, upon finding a prima facie case exclusively triable by the court of Sessions, committed the appellants to the court of the Additional Sessions Judge. Tonk, for trial in accordance with law. The learned Additional Sessions Judge tried both the appellants for the offence of attempt to murder punishable under section 307, I.P.C. and, upon conclusion of trial, came to a finding that Kamru appellant was guilty of an offence under section 323, I.P.C. while Kallu appellant was guilty under section 324, I.P.C. Accordingly, he convicted both the appellants and sentenced them in the manner stated above. Aggrieved by their conviction and sentences, the appellants have preferred this appeal. 3. I have carefully perused the record and heard Mr. V.S. Dave assisted by Mr. Virendra Dangi and Nazaruddin Khan for the appellants and Mr. Shiv Raj Behari Mathur, Public Prosecutor, for the State. Firstly, it was contended on behalf of the appellants that the learned Additional Sessions Judge committed a grave error in placing reliance on the testimonies of Ram Lal PW 1, Banna PW 2, Bholu PW. 4 and Bajranga PW 5 as all these witnesses were inimical to the appellants and their statements were full of material contradictions, and, as they had changed their versions from time to time in the manner they liked. It was further urged that the trial Judge failed to ascertain who was the aggressor and whether the appellants acted in the exercise of their right of private defence of person or otherwise. In support of his above contention Mr. V.S. Dave invited my attention to the injury reports of Kamru, Kallu, appellants, their mother Mst. Rahiman and Mst. Batul wife of Kamru, which were proved by Dr. Beni Prasad, DW 1, and Dr. Narendra Jain and contended on their strength that unexplained injuries found on the bodies of the appellants, their mother Mst. Rahiman and Mst. Batul wife of Kamru clearly indicated that the appellants were acting in self defence and the complainant and the eye witnesses were aggressors. Mr. Shiv Raj Behari Mathur. Public Prosecutor, on the other hand, strenuously urged that the evidence led by the prosecution fully established that Banna was beaten by the two appellants without any lawful excuse and that the number of injuries found on the bodies of the two appellants, their mother Mst. Rahiman and Mst. Mr. Shiv Raj Behari Mathur. Public Prosecutor, on the other hand, strenuously urged that the evidence led by the prosecution fully established that Banna was beaten by the two appellants without any lawful excuse and that the number of injuries found on the bodies of the two appellants, their mother Mst. Rahiman and Mst. Batul wife of Kamru does not necessarily prove that the complainant and the eye-witnesses were aggressors and the appellants were exercising the right of private defence of person while beating Banna. 4. I have given my anxious consideration to the rival contentions At the outset, I may observe that the prosecution has examined Banna PW 2, Rang Lal PW 3, and Bholu PW 4 in support of its case. The evidence of Banna PW 2 is that he was informed by Bajranga that Kallu appellant had killed a peacock Upon receiving this information he went in front of the house of the two appellants and saw Rang Lal, Moolia and Bholu already standing there. He professed to have asked Kamru as to way his brother has killed the peacock. At first Kamru denied the Killing of the peacock but. later on, he expressed his willingness to tell the details. Banna, thereupon, told him that if he did not divulge the details, he would call for the inhabitants of the village Kamru appellant got enraged and inflicted a lathi blow on his hand. Mean time Kallu appellant came out of his house having a knife in his hand and with it he struck a blow on the left hand of Banna. He again inflicted a blow on the heard of Banna with a knife and dealt a third blow on his stomach as a result of which his intestines came out and Banna fell down unconscious. The evidence of Banna finds support from the testimonies of Rang Lal PW 3 and and Bholu PW 4 in all its essential particulars. Hence I have no hesitation in holding that the prosecution succeeded in proving that Banna was beaten by both the appellants and as a result thereof received simple as well grievous injuries on his body. 5. The evidence of Banna finds support from the testimonies of Rang Lal PW 3 and and Bholu PW 4 in all its essential particulars. Hence I have no hesitation in holding that the prosecution succeeded in proving that Banna was beaten by both the appellants and as a result thereof received simple as well grievous injuries on his body. 5. But the matter does not end here, because the fact that both the appellants, their mother and Batul wife of Kamru had injuries on their bodies is a circumstance showing that the appellants were exercising the right of self defence and that Banna and his party were the aggressors. It will not be out of place to mention that Kallu appellant was examined by Dr. Narendra Mohan Jain DW 2, who found as many as 13 injuries on different parts of his body. Likewise Kamru, upon medical examination, was found to have received as many as 10 injuries on October 21 1974 Mst. Rahiman, mother of the two appellants, was also examined by Dr. Beni Prasad Sharma, who detected 7 simple injuries on her body, the duration of which was 24 hours. Mst. Batul wife of Kamru appellant also received two simple injuries by blunt weapon, as is evident from the statement of Dr. Beni Prasad Sharma, D. W. 1. All these injuries were not self inflicted. The prosecution failed to-afford a reasonable explanation for the presence of these injuries on the bodies of the two appellants, their mother and Mst. Batul The trial Judge brushed aside these injuries firstly on the ground that their duration could not be ascertained as Dr. Narendra Mohan Jain, who examined the injuries of the two appellants, clearly admitted in his cross-examination that he could not say what was the duration of the injuries and, secondly, on the ground that the two appellants were possibly beaten by the villagers after the incident was over, in my opinion on the aforesaid grounds, the injuries found on the bodies of the two appellants, their mother and Mst. Batul wife of Kamru, could not reasonably be ignored for the reasons mentioned below : 6. Banna PW 2 was confronted with portion A to B of his statement, Ex. Batul wife of Kamru, could not reasonably be ignored for the reasons mentioned below : 6. Banna PW 2 was confronted with portion A to B of his statement, Ex. D. 3, which he gave before the Additional Sessions Judge on March 14, 1975, and wherein he clearly admitted that he and his companions had threatened Kallu and Kamru appellants at his house after going there and that at that time their mother Rahiman and Mst. Batul wife of Kamru were present Likewise Rang Lal PW 3 admitted in his cross-examination that 8 or 10 persons including him had assembled in front of the house of Kalu and when Kamru appellant refused to point out the dead peacock inside his house, then he and his associates told the former that they would search his house. Thereupon, Kamru replied that they would not be permitted to search his house. Bholu, P. W. 4. on the other hand, stated in his cross-examination that he and his companions did not tell Kamru that they would search his house. He, however, admitted that Banna told Kamru that if he did not tell where the dead peacock was the former would call for the inhabitants of the village. Bholu was confronted with portion C to D of his statement Ex. D. 4 which he gave before the Additional Sessions Judge on March 14, 1975 before the denovo trial and wherein he admitted that Banna and Kamru appellant had grappled with each other at that time. In this manner, the injured and the aforesaid eye witnesses admitted that they had gene to the house of the appellants and gave threats to Kantru appellants that his house would be searched, and that the villagers will be called for. if he did not point out the dead peacock Bholu further admitted that Banna even grappled with appellant If Kallu appellant had killed the peacock Banna and his party could easily lodge a report of this incident with the police They were not justified in going to the house of the appellants and picking up a quarrel there and insisting on Kamru appellant to have his house searched and, upon his refusal to permit them to conduct a search, and in grappling with him. In these circumstances, the number of injuries found on the bodies of the two appellants and their mother Mst. Rahiman and Mst. In these circumstances, the number of injuries found on the bodies of the two appellants and their mother Mst. Rahiman and Mst. Batul wife of Kamru lead to an inference that the party causing them were the aggressors- It is highly probable that Banna and his party insisted on searching the house of the two appellants, in order to find out the dead peacock, and when the two appellants resisted their attempt to conduct the search, it led to a scuffle between the two appellants on the one hand, and Banna and his party, on the other. In the course of the scuffle, Banna received four injuries out of which three were simple in nature and one was grievous while Kallu received 13 injuries and Kamru sustained 10 injuries on their bodies, Mst. Rahiman and Batul appeared to have made efforts to rescue the two appellants. In the course of their efforts they also received 7 and 2 injuries respectively on their persons. In considering a plea of self defence it is not the triviality of the injuries inflicted upon the accused that has to be taken into consideration, but the question that has to be considered is whether the assault made on the accused is one which reasonably causes the apprehension of death or grievous hurt in his mind. It is not a condition precedent that a grievous hurl must be actually caused by the assailant. The test is whether there was reasonable apprehension that a real danger to his life and limb existed. In the instant case, the circumstances indicated above probabilism the plea of self defence set up by the two appellants because Banna and his party clearly formed an unlawful assembly with a common object to forcibly enter the house of the appellants to find out the dead peacock and to beat them in case they resisted their forcible entry and, in fact in prosecution of the said common object caused multiple injuries to both the appellants, their mother and Mst. Batul wife of Kamru Hence, Kallu and Kamru were justified in taking all necessary steps to defend themselves and in using force to repeal the attack made on them by Banna injured and his party. 7. Mr. Batul wife of Kamru Hence, Kallu and Kamru were justified in taking all necessary steps to defend themselves and in using force to repeal the attack made on them by Banna injured and his party. 7. Mr. Shiv Raj Behari Mathur, Public Prosecutor, for the State vehemently contended that even if Kallu could be held to have acted in exercise of his right of private defence, he certainly exceeded that right by causing a stab wound on the stomach of Banna. The above contention has no force, because it transpires from the prosecution evidence itself that Kallu at first caused two simple injuries on the body of Banna with a knife and then inflicted an injury on his stomach which was found grievous. In these circumstances, it cannot be safely held that Kallu exceeded the right of private defence, especially when he had received as many as 13 injuries on different parts of his body. 8. Mr. Shiv Raj Behari Mathur, Public Prosecutor, further urged that these injuries found on the bodies of the two appellants, their mother and Mst. Batul wife of Kamru were caused by the villagers after incident was over. In support of his above contention, he drew my attention to the statements of P.W. 3 Rang Lal and Bholu P.W. 4 who stated in their depositions dated July 14, 1975, at the trial that the two appellants ran away from the place of occurrence after beating Banna. They were chased by some persons of the village and were caught and tied till the arrival of the Station House Officer. From the above statements it is not proved that the two appellants were beaten by the villagers after they were caught hold and tied, because these two witnesses clearly admitted in their cross-examinations that there were no injuries on the persons of the two appellants. Rang Lal clearly admitted that he and his companions did not beat the two appellants. His above statement is quoted below in his own words : " ekjus ds uke ls rks geus gkFk gh ugha yxk;kA " Apart from this, there is no explanation from the side of the prosecution as to how Mst. Rahiman, mother of the appellants and Mst Batul wife of Kamru appellants had received injuries on their bodies, especially when according to the prosecution they were not involved in the occurrence. Rahiman, mother of the appellants and Mst Batul wife of Kamru appellants had received injuries on their bodies, especially when according to the prosecution they were not involved in the occurrence. In the absence of any explanation from the side of the prosecution the presence of the injuries on the bodies of these two ladies was probably due to the fact that they tried to rescue the two appellants when they were attacked by Banna and his party in front of their house and, in the course of their such efforts, they sustained injuries at the hands of the assailants. Consequently, I am of the view that the right of private defence of person accrued to the two appellants and they caused injuries to the body of Banna in exercise of their such right. From the mere fact that due to in experience in preparing the injury report Dr. Narendra Mohan Jain failed to mention the duration of the injuries found on the bodies of the two appellants, it cannot be safely held that the injuries were caused to them after the incident was over. Dr. Narendra Mohan Jain clearly admitted in his cross-examination that he joined the Government service on October 15, 1973 and this was first medico legal case that he examined after joining Government service The appellants cannot be penalised for the inexperience of Dr. Narendra Mohan Jain, D.W. 2, especially when the appellants were examined on October 21, 1974, i.e. on the next day of the incident. 9. The result of the above discussion is that I accept the appeal preferred by Kallu and Kamru appellants, set aside their convictions and sentences and acquit them of the offences punishable under sections 324 and 323. I P.C. respectively. Both the appellants are on bail and need surrender to their bail bond which are hereby cancelled.Appeal Accepted. *******