JUDGMENT 1. - This is an appeal by Kartar Singh, who has been convicted for the offence under Section 304, Part I, I.P C., and has been sentenced to ten years' rigorous imprisonment and to pay a fine of Rs. 1,000/-, in default, to further undergo rigorous imprisonment for one year, by the learned Additional Sessions Judge, Shri Ganganagar, by his judgment dated 6.8.1977. 2. In brief, the prosecution case is that square No. 49 of village IJ Bara (Khat Labana) belonged to one Dayasingh, who was deaf and dumb. Dayasingh was a nephew of the complainant Hukamsingh and the accused Chatar Singh. Mukam Singh and Chatar Singh are real brothers. This land was previously cultivated by Hukam Singh on behalf of Daya Singh, but on litigation by Dayasingh, a year prior to the occurrence, Hukmsingh had surrendered the possession of the Land to his brother accused Chatarsingh and Chatarsingh was in possessory cultivation of the land Hukamsingh wanted to obtain two 'Bighas' land, so that he may grow grass on it for feeding his cattle, for which he made several requests to Chatarsingh and a Panchayat was also convened, but his efforts were not proved fruitful, as Chatarsingh did not accede to the request of his elder brother Hukamsingh. He wanted to make one for the purpose of persuading Chatar Singh to hand over possession of two 'Bighas' of land to him by availing the good offices of Mahalsingh, his brother-in-law (P.W. 7) Panjasingh, his maternal uncle (P. W. 8). Panjasingh is also the father-in-law of his son Hajara Singh deceased, aged 26 years. Both of them were called a day prior to the occurrence and it is alleged that on June 7, 1975. Hukamsingh along with this wife Maribai, his son Hajarasingh, his brother-in-law (loser) Mahalsingh and Pannasingh went to the square No. 49 at about mid day. In the field they stayed beneath the Ber tree, where Isharsingh and Ranobai accused came and asked them as to why they have visited the field. Thereupon they told them that they have come to see Chatarsingh and they want to make a request to him to deliver two 'Bighas' land, as his cattle is starving, so that he can grow fodder for the cattle. Thereafter, both of them left and after about half an hour the accused Jogasingh, armed with 'Gandasi' Chatarsingh, armed with Kasia, Isharsingh, armed with Kasia. Thereafter, both of them left and after about half an hour the accused Jogasingh, armed with 'Gandasi' Chatarsingh, armed with Kasia, Isharsingh, armed with Kasia. Kartarsingh, armed with Pakka gun, and, Ranobai, armed with Gandasi, Santokh Singh, armed with Kasia and Isharsingh's son, armed with 'Latht came there. It may be stated here that Santokhsingh and Isharsingh's son were not challenged. The accused Chataringh then held him in his arms and thereafter Isharsingh inflicted a Kasia blow on his head, Jogsingh inflicted two Gandasi blows by the reverse side on his back. Morlbai was also belaboured and thereafter it is said that at the instance of the accused Chatarsingh the appellant Karatarsingh fired his gun, which hit Hajarasingh whereby Hajara Singh fell down. His wife Moribai fell on his son followed by Mahalsingh and Isharsingh inflicted a kasia blow on Mahalsingh. Thereafter, the accused persons went away from the place of occurrence. Hajarasingh was removed to the hospital and thereafter Hukamsingh proceeded to the Police Station, Hindumal Kot, where he lodged the first information report Ex. P/1. On his report Shri Ramswarup (P.W. 10), Station House Officer, registered the case under Sections 307, 147, 1948, 149 and 324, IPC., and 27 of the Indian Arms Act. At about 4.35, p.m , the Chief Judicial Magistrate, Sri Ganganagar, Shri Premshankar Shukla (P.W. 11) recorded the dying declaration Ex. P/44 of the deceased Hajarasingh. After completion of usual investigation, five accused persons were sent up for trial. 3. The learned Additional Sessions Judge framed charges against all the accused persons and after recording the pleas of denial by the accused persons, recorded the prosecution evidence. The prosecution in all examined as many as 11 witnesses, namely, P.W. 1 Hukamsingh, P.W. 2 Jitsingh, P.W. 3 Palsingh, P.W. 4 Khanchand, P.W. 5 Dr. S.S. Baxi, P.W. 6 Maribai, P W. 7 Mahalsingh, P.W. 8 Panjasingh, P.W. 9 Pokardas, P.W. 10 Ramswarup, and P.W. 11 Premshankar Shukla, Chief Judicial Magistrate. The statement of the accused persons were recorded. The plea of the accused is that the prosecution witnesses. namely, Hukamsingh, Maribai, Mahalsingh and Panjasingh, along with four others had trespassed into their field and had tried to dispossess Chatarsingh. The complainant party was armed with deadly weapons and they assaulted the accused party. The statement of the accused persons were recorded. The plea of the accused is that the prosecution witnesses. namely, Hukamsingh, Maribai, Mahalsingh and Panjasingh, along with four others had trespassed into their field and had tried to dispossess Chatarsingh. The complainant party was armed with deadly weapons and they assaulted the accused party. During the course of aggression by the complainant party, one of the members of the complainant party fired the shot aiming at Karatarsingh accused, but the target was missed, and the shot hit Hajarasingh deceased on chest. In defence the accused persons examined Dr. Ramlal (D W. 1). After hearing the arguments, the learned Additional Sessions Judge found that the complainant party committed trespass into the disputed field, which was in possession of Chatarsingh to get possession of a part thereof and had asked the accused party to get out of the field on the pretext of a stay order in their favour and had ultimately came to blows with the accused party, and, the accused party had every right to protect and save their properly and for doing so they were legally justified to use so much force as was sufficient to repulse the aggression and the accused persons had also a right to defend their persons as well. In this view of the matter the trial judge acquitted all the accused persons, except the appellant and in respect of the appellant, the learned trial judge recorded the finding that the accused Kartarsingh, the present appellant, exceeded his right of private defence of his body It was observed by the learned trial judge ;hat it does not appear to be reasonable to infer that the members of the accused party reasonably apprehended that the complainant party would cause the death of any of their members or any greivous hurt to any of them, and, it was observed that the use of fire arm was unreasonable and unjustified. It was observed by the learned trial judge that the complainant party was having blunt weapons, as against the accused party which was having blunt as well as sharp weapons, so they were in a position to inflict injuries with sharp weapons to the members of the complainant party. It is with this reasoning that the learned Judge found the appellant guilty of the offence under Section 304, Part I.P.C., as he has exceeded the right of private defence. It is with this reasoning that the learned Judge found the appellant guilty of the offence under Section 304, Part I.P.C., as he has exceeded the right of private defence. Dissatisfied with the conviction and sentence, the present appeal has been filed. 4. I have heard Shri B.R Arora, learned counsel for the accused-appellant, and Dr. S.S. Bhandawat, learned Public Prosecutor, for the State. 5. The controversy in the present appeal is very narrow What has been urged before me. is that when it has been found by the learned trial Judge that the accused party was acting in exercise of their right of private defence of their person and property, whether the appellant exceeded the right of private defence. The answer to this question depends on the consideration of this matter as to whether there was and there could be reasonable apprehension in the mind of the appellant that at the hands of the aggressors, death or grievous hurt may be caused to any member of the victim party, which was the accused party in the present case. If there could be such a reasonable apprehension. then the right of private defence even extended to the causing death of any member of the aggressor party, which is the complainant party in the present case. I have considered this question. The learned trial judge only on the basis of the nature of arms, possessed by the two parties, came to the conclusion that it is reasonable to infer that the accused party could not reasonably apprehend that the complainant party could cause the death or could cause grievous hurt to any member of the accused party. It is significant to note that in the instant case, four members of the accused party sustained injuries Isharisingh, Chatarsingh, Kartar Singh and Ranobai sustained the following injuries:ISHARSINGH : (1). Contusion 1/4 "x 1/2" on the occipital region. CHATARSINGH: (1). Lacerated wound (curve shaped) 4 cm 2cm x 1/2 cm x 1/2cm posterior aspect of left parietal region. (2) Bruise (oblique) 7 cm. x 1 cm. left back of chest. (3). Bruise swelling 2 cm. x 2 cm. posterio medial & mid of left fore arm. KARTARSIGH : (1). Lacerated (Trans.) 41/2 cm x 3/4cm x 1/2cm mid of occipital region. (2). Lacerate-1 (curved) 2 cm x 2 cm x 1/2cm x 1/2cm right parietal region. (3). Bruise (oblique) 5 cm. x 1/2cm. x 1 cm. left back of chest. (3). Bruise swelling 2 cm. x 2 cm. posterio medial & mid of left fore arm. KARTARSIGH : (1). Lacerated (Trans.) 41/2 cm x 3/4cm x 1/2cm mid of occipital region. (2). Lacerate-1 (curved) 2 cm x 2 cm x 1/2cm x 1/2cm right parietal region. (3). Bruise (oblique) 5 cm. x 1/2cm. on right shoulder. (4). Bruise 9 cm x 2 cm Anterior of right shoulder. (5). Lacerated (Trans.) 4 cm. x 1/2cm. x 1/4cm. on left eye brow. RANOBAI : (1). Lacerated (wound) oblique 2 1/2cm. x 1/4cm. x 1/4cm. Right parietal region on mid. (2). Bruise 11/2 cm. x 1/2cm. Anterior aspect of Rt. shoulder. (3). Bruise 11/2 cm. x 1/2cm. on posterior of medial aspect of left shoulder. (3). Abrasion swelling 1/2cm. x 1/2cm. on anterio lateral of right fore arm on lower third region. (5). Bruise swelling 5 cm. x 5 cm. on dorsum of left head. It would appear from the injuries on the above accused persons that three of them had sustained lacerated wounds on heads sufficiently big in dimensions. Kartarsingh had two lacerated wounds on occipital region and right parietal region. The accused party in all sustained as many as 14 injuries on the vulnerable parts of the body. Looking to the nature of the injuries and the parts on which the injuries were caused, it cannot be said that a reasonable apprehension would not arise in the mind of the members of the accused party that as a result of the blows, which may be inflicted by the members of the complainant party, death or grievious hurt would not be caused. As observed above Kartarsingh himself had two lacerated wounds on occipital region and parietal region. He himself could have reasonable apprehension that at least grievious hurt may result by any of the blows, which may be caused by any member of the complainant party, to him or to his fellow members. In my opinion, the reasoning advanced by the learned trial Judge does not appear to be a sound one in the circumstances of the case, more particularly, looking to the injuries which have been caused to the members of the party on the vulnerable part of their bodies. In my opinion, the reasoning advanced by the learned trial Judge does not appear to be a sound one in the circumstances of the case, more particularly, looking to the injuries which have been caused to the members of the party on the vulnerable part of their bodies. Thus, in my opinion, under the circumstances of the case, the right of private defence extended even to the causing of death by resoling to the use of fire arm by the appellant Kartarsingh. I may profitably refer here to some of the relevant decisions. 6. In Deo Narain v. State of U.P. ( AIR 1973 S.C. 473 ) the learned Sessions Judge acquitted the accused persons on the basis that the accused were held entitled to exercise the right of private defence and to inflict the injuries in question in exercise of that right. On appeal by the State the High Court upheld the conclusion of the trial court that the accused had the right of private defence and that they were justified in exercising that right, but in its opinion that right had been exceeded by the appellant Deo Natain in inflicting spear injury on the chest of the Chandrama deceased. The High Court convicted the appellant under Section 304, I.P.C. It was observed that the High Court does seem to have erred in law in convicting the appellant on the ground that he had exceeded the right of private defence. It was observed as under : "What the High Court really seems to have missed is the provision of law embodies in Section 102. Indian Penal Code. According to that section the right of private defence of the body commences as soon as reasonable apprehension of danger to the body arises from an attempt or thereat to commit the offence though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant, danger. This right rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repel that force in self-defence. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant, danger. This right rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repel that force in self-defence. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression & not for punishing the aggressor for the offence committed by him It is a preventive and not punitive right. The right to punish for the commission of offences vests in the State (which has a duty to maintain law and order) and not in private individual. If after sustaining a serious injury there is no apprehension of further danger to the body then obviously the right of private defence would not be available. In our view, therefore, as soon as the appellant reasonably apprehended danger to his body even from a real threat on the part of the par y of the complainant to assault him for the purpose of forcibly taking possession of the plots in dispute or of obstructing their cultivating he got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right. It was further observed:- "Again, the approach of the High Court that merely because the complainant's party had used lathis, the appellant was not justified in using his spear is no less misconceived and insupportable. During the course of a marpreet, like the present, the use of a lathi on the head may very well give rise to a reasonable apprehension that death or grievous hurt would result from an injury caused thereby. It cannot be Laid down as a general rule that the use of a lathi as distinguished from the use of a spear must always be held to result only in milder injury. Much depends on the nature of the lathi, the part of the body aimed at and the force used in giving the blow. In deed, even a spear is capable of being so used as to cause a very minor injury. Much depends on the nature of the lathi, the part of the body aimed at and the force used in giving the blow. In deed, even a spear is capable of being so used as to cause a very minor injury. The High Court seems in this connection to have overlooked the provision contained in section 100, I.P.C. We do not have any evidence about the size or the nature of the lathi. The blow, it is known, was aimed at a vulnerable part like the head. A blow by a lathi on the head may prove instantaneously fatal and cases are not unknown in which such a blow by a 'lathi' has actually proved instantaneously fatal. If, therefore, a blow with a lathi is aimed at a vulnerable part like the head we do not think it can be laid down as a sound proposition of law that in such cases the victim is not justified in using his spear in defending himself. In such moments of excitement or disturbed mental equilibrium it is somewhat difficult to expect parties facing grave aggression to cooly weigh as if in golden scales and calmly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful aggression. No doubt, the High Court does seem to be aware of this aspect because the other accused persons were given the benefit of this rule. But while dealing with the appellant's case curiously enough the High Court has denied him the right of private defence on the sole ground that he had given a dangerous blow with considerable force with a spear on the chest of the deceased though he himself had only received a superficial lathi blow on his head. This view of the High Court is not only unrealistic and unpractical but also contrary to law and indeed even in conflict with its own observation that in such cases the matter cannot be weighed in scales of gold. 7. In Mod Singh v. The State, I.L.R. (1954) 4 Raj, 7 a certain pasture land was in possession of the accused for more than 10 years and he preserved grass over it. 7. In Mod Singh v. The State, I.L.R. (1954) 4 Raj, 7 a certain pasture land was in possession of the accused for more than 10 years and he preserved grass over it. A number of persons residing in the neighbouring village J decided one day to take forcible possession of this pasture land by grazing their cattle on it, and with this invention went there armed with lathis and accompanied by their cattle. On being informed of this, the accused came to the spot with a gun and with a number of followers who were also armed with lathis. When the villagers of J, who started grazing their cattle on the pasture land, did not desist from their action, accused asked his followers to round up the cattle and take them to the village. When they began to do so, the villagers of J attacked them with lathis and a lathi fight started between the two groups. Thereupon, the accused fired a shot towards the villagers of J, presumbly to scare them away, and one of them was killed. The accused was convicted by trial court under Sec 304, I.P.C., and he appealed against his conviction. It was held by this Court:- "The accused as well as his followers had a right of private defence of property, as under S. 97, I.P C., a person has a right to defend not only his own property but that of others also. When some of his followers were attacked by villagers of J with lathis, the accused and his helpers became entitled to the right of private defence of person also. This right is available not only for the defence of one's own body but also for the defence of the body of any other person". It was further held:- "An attack by lathis must in every case lead to a reasonable apprehension that grievous hurt might be caused if steps are not taken to defend the person attacked, and, therefore, the right of private defence of person, which the accused and his helpers had in this case, extended, under section 100, I P.C., the voluntary causing of death or any other harm to the assailant". 8. 8. In the State v. Adre and others (I.L.R.(1958) 8 Raj 15) , the accused who were rightful owners of the field in dispute and whose possession had never been really disturbed, went to plough the field. C accompanied with others went to the spot, armed, with the intention of stopping the accused from ploughing the field and from maintaining the possession of it. The accused did not withdraw and there was a fight in consequence. In the course of the fight. C and his supporters had the worst of it and one of them had a fracture of the ribs and consequent rupture of lung and liver resulting in his death. The injuries received by C and his party were practically all caused by blunt weapons and practically all of them except for the one mentioned above were simple. It was held that;- "When the accused beat of C and his men, they were only maintaining their right and were not enforcing any right and they must have apprehended that C and his supporters who had come armed would at least cause them grievous hurts, it cannot be said that they had exceeded right of private defence of person". 9. Thus, in the light of what I have considered above, by no stretch of imagination it can be found that the appellant exceeded the right of private defence and in this view of the matter the appellant is entitled to an acquittal. 10. In the result, the appeal is allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the offence under Section 304 Part I, I.P.C. He is already on bail, so need not surrender to his bail bonds. His bail bonds are discharged.Appeal dismissed. *******