R. P. SHUKIA, J. ( 1 ) THIS Criminal Appeal is directed against the judgment and order, dated 29th January, 1979, passed by the then Fifth Additional Sessions Judge, Aligarh, convicting and sentencing the appellants under section 323, I. P. C. , read with section 34, I. P. C. , to undergo R. I. for one year. ( 2 ) THE prosecution case, briefly stated, is that on 8. 5-1976, when Sri Doonger Ram had gone, on his field, his two sons namely, Mohar Singh aged about eleven years any Budh Sen aged about nine years along with Kamal Singh another boy of the village aged about eight years went to fields. Budh Sen entered into the plot of the appellants and picked up a melon. Appellant Gokul Chand caught hold of Budh Sen while the other two children ran away. The other appellant Roshan Lal, who had also arrived, instigated Gokul Chand to beat Budh Sen. Both the appellants beat Budh Sen, Kamal Singh and Mohar Singh were hiding at some distance. Budh Sen fell down and then got up holding his stomach and walked up to Mohar Singh and Kamal Singh who supported him and took him to his house. Doongar Ram returned at about 7. 00 p. m. and found his son Budh Sen lying. The boy complained to his father Doongar Ram that he had severe pain in his abdomen and was vomitting. Doongar Ram took the boy to I Dr. S. K. Sharma, an Ayurvedic Medical Practitioner. The doctor suspected abdominal injury and gave him medicine. The vomitting I stopped, but the pain continued. Budh Sen I was again taken to Dr. Sharma on 9. 5. 1976 at 11. 00 a. m. On 9. 5. 1976 at 6. 00 p. m. in the evening, the condition of Budh Sen deteriorated and he was again taken to Dr. Sharma and on his advice to Dr. Laxman Swarup. Dr. Laxman Swarup gave him medicine. While Budh Sen was being brought back to his house, he began to feel severe pain and was taken to Dr. Laxman Swarup. Dr. Laxman Swarup was of the opinion that Budh Sen could not be cured. When the boy was being taken back from the dispensary of Dr. Laxman Swarup, he breathed his last on the way and was taken home and the dead body was buried near a pond in Kishanpur. Laxman Swarup. Dr. Laxman Swarup was of the opinion that Budh Sen could not be cured. When the boy was being taken back from the dispensary of Dr. Laxman Swarup, he breathed his last on the way and was taken home and the dead body was buried near a pond in Kishanpur. ( 3 ) ON 10. 5. 1976 at about 6. 00 p. m. , Sri Doongar Ram, Ramji Lal, Sita Ram. Nathu Ram and Radhey Shyam had assembled at the door of Doonger Ram to condole the death of Budh Sen. It is then that Mohar Singh and Kamal Singh informed them that the pain in the stomach of Budh Sen was the result of injury caused by Gokul Chand and Roshan Lal appellants on 8. 5. 1976 and due to fear the children did not tell about this incident earlier. Thereafter Doongar Ram lodged the report (Ext. Ka-1) on 11. 5. 1976 at 0. 30 a. m. The dead body of Budh Sen was exhumated under the supervision of Sri A. Z. Khan, the then Executive Magistrate (P. W. 7 ). The body was washed and inquest report was prepared by Sri Khan. The dead body was sealed and sent for post mortem examination in the custody of Constable Kailash Chand Pandey (P. W. 8) and another. Dr. J. S. Pawar (P. W. 10) conducted the post-mortem examination at 11. 45 a. m. on 12. 5. 1976. No external mark of injury was found by the doctor. On internal examination, the liver of Budh Sen was found ruptured and right para-colic gutter cavity contained about six ounces of liquified blood. In the opinion of the doctor, the death of the boy was caused due to rupture of liver and consequent leaking of blood in peritonial cavity. The Investigation of the case was taken up by Sub-Inspectos Babu Ram Singh Yadav who submitted the charge sheet (Ext. Ka-12 ). The case was committed to the Court of Sessions. ( 4 ) THE prosecution examined Dr. S. K. Sharma (P. W. 1), Ramji Lal (P. W. 2), Doongar Ram (P. W. 3), Mohar Singh alias Mohan Singh (P. W. 4), Kamal Singh (P. W. 5), H. C. Pandey (P. W. 6), Redhey Shyam Caurvedi (P. W. 7), Sri A Z. Khan (P. W. 8), Constable Kailsh Chand Pandey (P. W. 9), Sub-Inspector Babu Ram Singh Yadav and Dr. J. S. Pawar (P. W. 10) in support of its case. The appellants denied the charge and pleaded not guilty. No witness in defence has been examined. After considering the evidence of the prosecution, the learned Sessions Judge convicted the appellants as aforesaid. Aggrieved by his judgment and order, this appeal has been preferred. ( 5 ) LEARNED counsel for the appellants has contended firstly that the first information report in the case was lodged after three days. It is indicative of the fact the deceased did not disclose about the incident and P. Ws. 4 and 5 i. e. Mohar Singh and Kamal Singh disclosed about the incident only on the third day of the incident and he, therefore, submitted that this belated disclosure made by P. Ws. 4 and 5 is fatal to the prosecution and amounts to nondisclosure or late disclosure which has not been properly explained. The conviction of the appellants on the basis of the testimony of such witnesses who made such a belated disclosure is bad. Secondly, learned counsel for the appellants has contended that the deceased child Budh Sen. committed theft of melon of the appellants. The right of private defence of the property, therefore, accrued to the appellants against the act of theft by the deceased. ( 6 ) OUT of the two eyewitnesses, namely, Mohar Singh and Kamal Singh, the trial Judge has discarded the testimony of Kamal Singh, but has placed reliance on the statement of Mohar Singh. I have perused the statement of Mohar Singh. The statement appears to be very natural and straight forward. He has given consistent and the detailed version of the occurrence. His statement inspires confidence. The contention of the learned counsel for the appellants that the testimony of this witness should be rejected on the ground that he made a belated disclosure of the incident is not acceptable. The witness has stated that he did not disclose the incident earlier out of fear. This statement appears to be natural and true because the children while playing entered into the field of the appellants to pluck melons and Budh Sen did pluck a melon. The witness has stated that he did not disclose the incident earlier out of fear. This statement appears to be natural and true because the children while playing entered into the field of the appellants to pluck melons and Budh Sen did pluck a melon. In the circumstances, it was natural for the children not to disclose the incident out of fear of being scolded at home as to why they went into the field of the appellants but after the death of Budh Sen when not only the members of the family were in grief but the neighbours also collected to mourn Budh Sens death, this child blurted out the truth. This is common human experience that the children do conceal their naughty acts from their elders. This explanation for the delayed disclosure is reasonable, natural and honest. No doubt the children are prone to tutoring arid they memorise the story told to them like parrots but they do commit mistake when cross-examined with respect to attending circumstances of a particular case. This child is aged about eleven years. His own brother was dead and he was therefore, expected to remember the incident vividly and has narrated the same. Even in cross-examination, he has not faultered even in respect of the minute details of the occurrence and the attending circumstances and has given out a very natural statement. I am not inclined to believe that his statement is the result of tutoring. He is again corroborated by the medical evidence. The liver of Budh Sen was found ruptured. Six ounces of liquified blood was found in the para-colic gutter cavity. No external mark of injury was found by the doctor. This corroborates this witness who has stated that there was no external mark of injury although blows with kicks and fists were given in the abdomen and on the waist. A blow in the abdomen may or may not cause external mark of injury but it may cause the rupture of the liver as in the instant case. ( 7 ) LEARNED counsel for the appellants has urged that his testimony should be discared on the ground that he has stated that fifteen to sixteen blows were given and thus according to the learned counsel there is conflict in the medical evidence and the testimony of this witness. ( 7 ) LEARNED counsel for the appellants has urged that his testimony should be discared on the ground that he has stated that fifteen to sixteen blows were given and thus according to the learned counsel there is conflict in the medical evidence and the testimony of this witness. I decline to accept this argument of the learned counsel firstly because the counting of blows was not very material to this child in the circumstances of the case; secondly may be that this witness has made slight exaggeration and thirdly that in the absence of external mark of injury actually how many blows were caused in the abdomen or on the waist cannot be assessed but blows were caused as a result the liver was ruptured and thus the medical evidence lends support to the statement of this witness. I, therefore, accept the testimony of this witness corroborated by the medical evidence. ( 8 ) RAMJI Lal (P. W. 2) and Doongar Ram (P. W. 3) have stated that Mohar Singh (P. W. 4, made the statement about the incident in the evening of 10. 5. 1976 and that he did not make the statement earlier due to fear. Learned counsel for the appellants contends that the statements of Ramji Lal and Doongar Ram are inadmissible as they did not form part of the same transaction because the statements made to them were not made immediately after the occurrence. Section 6 of the Evidence Act reads: 6. Relevancy of facts forming part of same transaction-Facts which though not in issue are so connected with a fact in issue as to form part of the same transfaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustration (a) to the section reads: (a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standards at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. T ( 9 ) THE statements of these witnesses with respect to the actual incident mayor may not be admissible, but the fact that Mohar Singh (P. W. 4) made the disclosure about the incident to them is a relevant fact and is admissible in evidence. T ( 9 ) THE statements of these witnesses with respect to the actual incident mayor may not be admissible, but the fact that Mohar Singh (P. W. 4) made the disclosure about the incident to them is a relevant fact and is admissible in evidence. Thus the testimony of Mohar Singh (P. W. 4) corroborated by the medical evidence and supported by the evidence of Ramji Lal (P. W. 2) and Doongar (P. W. 3) makes him a wholly reliable witness. The fact that Mohar Singh is the real brother of the deceased and that he too accompanied his brother to the melon field to commit the theft of melon does not minimise the value of his testimony in any way. Like any other witness even a child witness can be wholly reliable. Wholly unreliable, or party reliable and party unreliable. I find that this witness is a wholly reliable witness. ( 10 ) THERE is one more circumstance to lend support to the truth of the prosecution case. If Doongar Ram decided to falsely implicate the appellants in the case, he could have done it immediately after the death of his son by lodging a report. He would not have buried the child so uncleremoneously. The fact that he quietly buried his son and made the report only after the disclosure of the incident by Mohar Singh and Kamal Singh and that he bore the agony of exhumation of his son is consistent only with the truth of the case. ( 11 ) THE argument of the learned counsel for the appellants that the right of private defence of ALLAHABAD HIGH COURT Page 5 of 5 property accrued to the appellants does not hold any water. The right of private defence is essentially a defensive right circumscribed by the statute available only when the circumstances clearly justified it. It should not be allowed to be pleaded or availed of as a pretext for a vindictive, aggressive or retributive purpose. It is in the statement of Mohar Singh (P. W. 4) that the deceased had plucked one small and unripe melon and came out of the field and tasted the same. It was then that the appellants arrived. Budh Sen could not eat the whole of the melon and threw out. The appellants chased the deceased and caught hold of him. It was then that the appellants arrived. Budh Sen could not eat the whole of the melon and threw out. The appellants chased the deceased and caught hold of him. He started weeping and the accused appellants beat him with kicks and fists. In view of section 105, I. P. C. , the right of private defence of property against theft continues till the offender has effected his retreat. In this case, Budh Sen ha s come out of the field and tasted the melon and threw it. There is no evidence that he had some more melon with him which the appellants wanted to recover. In such a situation no right of private defence could accrue to the appellants because they chased and beat Budh Sen who bad already left the field. ( 12 ) IN the circumstances, it appears that the accused, appellants never intended to arrest Budh Sen and take him either to his parents to make a protest or to police to make a report and hand him over to police it appears that the accused-appellants intended to punish him. The right of private defence cannot be a right to punish and in the circumstances no such right can accrue to the appellants. ( 13 ) THE evidence on record shows that the accused-appellants intended to punish the deceased who plucked the melon from their field. Both the appellants beat him with kicks and fists. It cannot be said as to whose blow caused fatal injury and, therefore, in these circumstances, any intention to cause death cannot be attributed to the accused-appellants. Common knowledge of consequence of blows likely to cause death would be a misconception in the circumstances of this case. The only conclusion possible from the evidence and the attending circumstances is that the common intenttion of the accused-appellants was only to cause hurt and an offence under sections 323/34 IPC is fully made out against them. ( 14 ) THE offences has been committed as far back as eleven years. Roshan Lal appellant was aged about sixtysix years and Gokul Chand appellant was seventyfive years of age at the time of the occurrence and now they are about seventyseven and eightyseven years of age. There is nothing on record to indicate that they have any ex-conviction at their credit. Roshan Lal appellant was aged about sixtysix years and Gokul Chand appellant was seventyfive years of age at the time of the occurrence and now they are about seventyseven and eightyseven years of age. There is nothing on record to indicate that they have any ex-conviction at their credit. In the circumstances, narrated above, I do not feel it desirable to send them back to jail. The sentence of imprisonment awarded to them by the trial Judge is modified. Instead of sentence of imprisonment they are sentenced under section 323 read with section 34, IPC to pay a fine of Rs. 750/- each and in default of payment of fine they shall undergo R I. for six months each. ( 15 ) WITH this modification in the sentence, the appeal fails and is dismissed. The appellants shall deposite the amount of fine within a month from the date of this order. Out of the fine so realized, Rs. 1,000/- shall be paid to Sri Doongar Ram, son of Data Ram, resident of village Chandania, Police Station Civil Lines, Aligarh, the father of the deceased. Appeal dismissed. .