JUDGMENT 1. - This is an appeal against the judgment of Sessions Judge, Sikar, dated May 29, 1982 convicting the accused-appellant for offence under S. 304 Part II IPC and sentencing him to five years rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine he was directed to further undergo two months' rigorous imprisonment. 2. This case started on an oral report made by Jhabarmal son of Baluram resident of Balaran at police station, Lakshmangarh on June 30, 1981 about 4.00 PM wherein he stated that at 1.30 in the noon his real cousin Kishanaram son of Ladu Ram was putting a thatch (Chhapper) near his house which was objected to by him. Kishana gave two lathi blows on his head as a result of which his head started bleeding. Just then his sons Bajranglal, Jagan and Makhan arrived and so also Purnaram son of Laduram came and he gave a lathi blow to Jagan. Sohan Singh also arrived who intervened and separated them. He went to the police station along with his three sons Bajranglal, Jagan and Makhan. The S.H.O. noted injuries below this report and sent all the four injured for medical examination. Jhabarmal succumbed to the injuries and on 1.7.1981 his post-mortem was conducted by PW.12 Dr. V.K. Khanna. According to him deceased Jhabarmal died as a result of the fracture of skull and concussion of brain caused as a result of injury on the head. The investigation officer therefore, converted the case into one under S. 302 IPC and completed the investigation. After that he submitted a charge-sheet against Kishnaram and Poornaram in the court of Munsiff and Judicial Magistrate, Fateh-pur was committed both of them to the court of Sessions to face trial. The learned Sessions Judge, Sikar framed charge against Kishana for offence under S. 302 IPC and in the alternative under S. 302 read with S. 34 IPC, 323 and 325 read with S. 34 IPC. Kishana denied the charges and claimed to be tried. Similar charges were read over to Poornaram who too denied the charges and claimed to be tried. The prosecution in support of its case examined 13 witnesses. The accused in their statements under Sec. 313 Cr.P.C. stated that Jhabarmal and his sons came to their residence and beat them. Kishana denied the charges and claimed to be tried. Similar charges were read over to Poornaram who too denied the charges and claimed to be tried. The prosecution in support of its case examined 13 witnesses. The accused in their statements under Sec. 313 Cr.P.C. stated that Jhabarmal and his sons came to their residence and beat them. They examined three witnesses in defence to substantiate their plea of right of private defence of person and properly. The learned Sessions Judge found the prosecution case proved to the extent of offence under S. 304 Part II IPC. He thus acquitted the accused-appellant of the charge of murder and instead convicted and sentenced him as indicated above. Aggrieved by the said conviction and sentence this appeal has been filed. 3. It is submitted by the learned counsel appearing for the applicant that the trial court has erred in not correctly appreciating the law concerning right of private defence of person and property. The submission is that it has not been brought on record as to in what manner the incident started, i.e., the genesis of the prosecution story has not been put forth which was essential in the circumstances of the case because both the accused had also sustained multiple injuries on their persons in same incident. It is further submitted that it is an admitted case of the prosecution that incident started when the accused appellant Kishanaram was peacefully exercising his right of putting of catch in his own portion and the deceased came and objected to it. The incident thereafter has to be judged in the peculier circumstances as both the accused had sustained injuries along with one lady of their family. The trial court made an illusory differentiation by holding that it was after the falling of Jhabarmal at the hands of Kishana Ram that another incident started in which both the parties sustained injuries. It is submitted that this runs counter to the circumstances available in the case. It is then submitted that there is no independent evidence to corroborate the prosecution version and the witnesses examined are highly interested. It is submitted that this runs counter to the circumstances available in the case. It is then submitted that there is no independent evidence to corroborate the prosecution version and the witnesses examined are highly interested. It is then submitted that the story of partition of the property which has been developed subsequently by the prosecution and accepted by the learned Sessions Judge is an afterthought in as much as the same does not find place in the F.I.R. There is yet another important aspect of the matter as to where the report could be lodged by deceased Jhabarmal at all because according to the medical evidence of PW. 12 Dr. V.K. Khanna it could not have been possible for Jhabarmal after receipt of the injury that he could have remained conscious. His submission is that the loss of consciousness will be instantaneous. It is then submitted that the injuries on the person of Kishana, Pooranmal and Mst. Teeja Devi wife of Kishana also have not at all been explained by the prosecution and for these both the reasons and/or either of the two, i.e., the accused exercised the right of private defence of person and property or in the alternative the prosecution has failed to come out with the genesis of the case and explain the injury of the accused, the prosecution story is not worthy of reliance and the accused is-entitled to benefit of doubt. 4. On behalf of the State it is submitted that the accused-appellant is not at all entitled to any right of private defence because he had already inflicted the injuries prior to arrival of other members of the complainant party and co-accused Pooranmal The submission of the learned Public Prosecutor is that the deceased Jhabarmal was an old man of about 75 years of age and was not in a position to cause any bodily hum on the person of Kishana who, only on a protest for making a thatch, inflicted couple of injuries on his person of resulting in his death. It is submitted that the act of Jhabarmal in going to protest for making thatch, was not with an intention to commit criminal trespasser mischief or theft or robbery so as to attract the provisions regarding exercise of right of private defence. It is submitted that the act of Jhabarmal in going to protest for making thatch, was not with an intention to commit criminal trespasser mischief or theft or robbery so as to attract the provisions regarding exercise of right of private defence. It is then submitted that Jhabarmal was bare handed when he came near Kishana and since partition had already taken place he was within his legitimate right to raise the protest but Kishana suddenly took up a lathi and inflicted injuries on the person of Jhabarmal as a result of which he sustained severe injuries and ultimately succumbed to them. It is submitted that the trial court has already taken a lenient view in convicting the accused for offence under S. 304 Part II IPC and sentencing the accused appellant to five years' rigorous imprisonment. In fact the case warranted a heavy punishment on the accused-applicant. 5. I have given my thoughtful consideration to the rival contentions and have carefully gone through the entire record. 6. The entire case is in a very narrow ambit as it is admitted case of the prosecution that on the date of occurrence the place where the thatch was being placed by Kishana was in his own possession and he used to cook meals at that place. Though the prosecution has examined as many as 13 witnesses in support of its case but the material witness is only Sohanlal because according so the prosecution he was the only eye-witness to the occurrence. PW. 2 Sohanlal has stated in his examination in-chief that about 5 months before at about 1-30 in the noon he was returning home after crushing line. When he arrived at the house of Netram he saw Kishana and Pooranmal standing near the thatch. Jhabarmal asked Kishana not to raise thatch but they continued removing it. Jhabarmal then said that if they will not remove the thatch they would be under the oath of the cow. Kishanaram thereupon gave one lathi blow on the head of Jhabarmal as a result of which he fell down and started bleeding. On his raising alram Jagan, Makhan and Bajrang came and then there was a quarrel between both the sides. He was seeing it from a distance of 10 paces but when he came near to intervene he also got an injury on his finger. Kishana and Pooran ran towards the market. On his raising alram Jagan, Makhan and Bajrang came and then there was a quarrel between both the sides. He was seeing it from a distance of 10 paces but when he came near to intervene he also got an injury on his finger. Kishana and Pooran ran towards the market. In cross examination he has admitted that his house is at quite a distance from the place, but since he was returning after crushing lime from the house of Dr. Shiv Kumar he saw the occurrence. He admits that where the fight took place there was a room belonging to Pooran and opposite to it is the empty land. He was shown photograph of the place of occurrence but he could not show the place of incident on the photos regarding the house of the accused persons. According to him there was a fight between both the sides but at that time he had not seen any injury on the person of Kishana or Pooran. He had only seen an injury on the person of Jhabarmal. He admits that he has not mentioned about this incident to anybody and had seen Kishana and Pooran in Lakshmangarh police station after the occurrence because they had also gone to lodge the report though they had no injuries on their persons. He was cross examined about the relationship between two families and that they were cousins to which he showed his ignorance. According to this witness the three sons of the deceased Jhabarmal namely, Makhanlal PW. 7, Jagan PW. 8 and Bajrang PW. 1 arrived subsequently. I am not pursuaded to accept the statement of this witness for various reasons and a contained to say that the trial court has not correctly read the evidence. According to the F.I.R. lodged by Jhabarmal himself incident took place when he went to Kishana and protested not to be place thatch (In his own language to say) he said : " fd'kukjke iq= yknwjke gekjs ?kj ds ikl NIij p<+k jgk Fkk] eSaus mls euk fd;k ;g Niij er p<+k rks mlus nks pksV ykBh dh esjs flj ds mij ekFkk esa ekjhA " This statement has been considered as dying declaration after death of Jhabarmal and is Ex. 3A. The statement of other three witness is also that accused Kishara was placing Chhappar on the Ballies which he had placed before. 3A. The statement of other three witness is also that accused Kishara was placing Chhappar on the Ballies which he had placed before. While according to Bohan it is otherwise. He has stated the Kishana was removing the Chhapper and when Jhabarmal objected to it when he was beaten. His statement is that " >kojey ls euk fd;k fd NIij er mBkvks rks fQj og mBkus yx x;sA >kojey us dgk fd vxj rqe NIij mBkvksxs rks rqEgsa xkS dh lkSxU/k gSA fdlukjke us >kojey ds ,d ykBh dh ekjh ftlls >kojey fxj iM+kA " 7. Thus, he is unable to show even the motive which gave rise to the incident, i Besides this, according to Sohan only one injury was caused by accused Kishana which is not corroborated ether by the dying declaration or the medical evidence. There is one more circumstance to doubt his testimony and that is that he is a chance witness. He does not live in the neighbourhood. Thus on all material aspects he contradicts the story as put forward in the F.I.R. dying declaration and in the statement of the other witnesses. Hence I am not inclined to accept his testimony. So far as PW. 1 Bajranglal, PW. 7 Makhanlal and PW. 8 Jagan are concerned, they came subsequently according to their own statements and cannot say as to whether the injuries were caused by Kishana or Pooran. Besides this, their testimony otherwise cannot be accepted because they have not explained the injuries sustained by the accused persons. PW. 13 Dr. Bajranglal Jangi had examined the injuries of Kishana, Pooranmal and Smt Teeja Devi on the same day and he found the following injuries on their persons :Kishana : 1. lacerated wound 0.5 cm x 0.5 cm x 0.2 cm on the right palm between thumb and index finger. 2. Bruise 4 cm x 2.5 cm on the back of right upper are above the elbow 3. Contusion with swelling 4 cm x 5 cm on the left forearm on the lower part. 4. Abrasion 2 cm x 2 cm on the right upper arm in the middle. 5. Abrasion 3 cm x 1 cm on the right side of face extending from ear to parotid region. 6. Bruise 10 cm x 7 cm on the lumber region. 7. Bruise 6 cm x 6 cm on the right shoulder. Pooranmal : 1. 4. Abrasion 2 cm x 2 cm on the right upper arm in the middle. 5. Abrasion 3 cm x 1 cm on the right side of face extending from ear to parotid region. 6. Bruise 10 cm x 7 cm on the lumber region. 7. Bruise 6 cm x 6 cm on the right shoulder. Pooranmal : 1. Contusion with abrasion 6 cm x 1 cm on the right forearm near the wrist joint. 2. Abrasion 0 5 cm x 0.75 cm on left knee infront. 3. Abrasion 5 cm x 4 cm irregular on the back of chest, upper part. 4. Contusion 4 cm x 3 cm on the left temporal region. Teeja Devi : 1. Bruise with swelling 7 cm x 4 cm on the right upper arm mediolaterally. 8. Looking to the nature of the injuries it can safely be said that they are not self inflicted and circumstances indicate that they have been received in the same incident. This is also corroborated from the fact that the accused persons had also lodged a report on the same day at the same police station which was taken down in the Roznamcha. The injuries on the person of the accused having not been explained by the prosecution witnesses and the genesis of the case also not having been brought on the record. I am of the opinion that the prosecution has not succeeded in establishing its case beyond all manner of reasonable doubt. There is yet another circumstance to support the defence version and that is the statement of D.W.3 Teejli who was an injured eye witness. She has given graphic version of the incident and could not be shaken in the cross examination. She is wife of accused Kishana. There is no reason to disbelieve her story. She has come out with a case of right of private defence of person and property both and there are reasonable chances that her story may be true, looking to the totality of the circumstances, the prosecution witnesses have failed to establish the genesis. She is wife of accused Kishana. There is no reason to disbelieve her story. She has come out with a case of right of private defence of person and property both and there are reasonable chances that her story may be true, looking to the totality of the circumstances, the prosecution witnesses have failed to establish the genesis. Even otherwise when there are two parallel stories, one in favour of the prosecution and another in favour of the accused and there may not be sufficient evidence to show that the accused exercised the right of private defence, yet there is enough evidence to raise a doubt about the beginning of the incident and the place of incident admittedly being in actual physical possession of the accused there is every likelihood of the defence being closer to truth. In that eventuality also the accused is entitled to benefit of doubt. 9. As a result of the aforesaid discussion, I accept this appeal, set aside the judgment of the trial court, dated 29.5.82 and acquit the accused-appellant of all the charges. He is on bail and need not surrender to his bail bonds which shall stand discharged.Appeal accepted. *******