JUDGMENT 1. - This is a criminal appeal under Section 374 Cr. P.C. against the judgment dated 22-7-78, passed by the learned Addl. Sessions judge, Baran, in sessions case No. 57/77, convicting and sentencing the accused appellants under Section 307/34 I.P.C., as under:- (1) Vijai Shanker: 3 years R.I. and a fine of Rs. 100/-, in default of payment of fine, to undergo further R.I. for 2 months; (2) Jodhraj; 2 Years' R.I. and a fine of Rs. 100/-, in default of payment of fine, to undergo further R.I. for a period of two months; (3) Hanshraj: Imprisonment till rising of the court and a fine of Rs. 50/-, in default of payment of fine, to undergo simple imprisonment for a period of one month. 2. The allegation against the appellant is that on 31-1-77 at about 10.00 a.m., in village Bahadurganj all the accused appellants conspired and gave beating with lathes to Nand Singh. An FIR regarding the incident was lodged on the same day at 3.45 p.m. by Ram Singh at Police Station, Atru. According to the medical report, Nand Singh had 2 injuries on his head caused with blunt weapon. Injury No. 2, according to the medical report, was grevious. The blood had also come from the right eye and right ear of Nand Singh. As per Ex. P 3, since the X-ray unit in Maharao Bhim Singh hospital, Kota was out of order, private X-ray of Nand Singh was conducted, which showed the fracture in the head. All the accused persons were charged under Section 307/34 I.P.C.3. The prosecution examined as many as 17 witnesses. The accused appellants were examined under Section 313 Cr. P.C. and produced one witness in defence. After hearing both the parties, the learned trial court convicted and sentenced the accused appellants as mentioned above. Hence this appeal.4. I have heard Mr. Shahid Hasan appearing for the appellants and Mr. Suresh Sharma, learned Public Prosecutor for the State.5. Learned Counsel for the appellants has contended that out of 4 injuries, 2 are caused on the head and out of them one is grevious, but none of the prosecution witnesses have clarified as to who was author of the grevious injury. Shahid Hasan appearing for the appellants and Mr. Suresh Sharma, learned Public Prosecutor for the State.5. Learned Counsel for the appellants has contended that out of 4 injuries, 2 are caused on the head and out of them one is grevious, but none of the prosecution witnesses have clarified as to who was author of the grevious injury. Therefore, it is contended that in absence of such evidence, none of the accused appellants could be held liable for conviction under Section 307 I.P.C. It has been further contended that it was Nand Singh who was aggresor and who came from his village to the village of accused appellant duly armed with lathi to give threatening to the appellants. This is clear from the statements of the prosecution witnesses themselves but the learned trial court has failed to appreciate this aspect of the evidence and has ignored the same. It is pointed out that injured Nand Singh came to the house of the appellants and the incident is said to have taken place just out side their house. It is also contended that the learned trial court has erred in relying on the evidence of Rajendrasingh, PW 4 as there is material contradiction between the statements of this witness and that of PW 1, Mst. Kaushalya. Learned trial court has grossly erred in treating Rajendra Singh as eye witness, where as according to PW 1, at the time of occurrence, Rajendra Singh was in-side the school. Therefore, no reliance can be placed on the version of Rajendra Singh and evidently he is not an eye witness. It is also pointed out that the prosecution examined Rajendra Singh under Section 161 Cr. P.C. after long delay of about 3 months. This also, according to the learned Counsel for the appellants, causes serious shadow of doubt on the veracity of the statement of this witness. It is also stressed that significantly the name of PW 4 Rajsendra Singh does not appear in the FIR. It is, therefore, urged that the learned trial court has wrongly convicted the accused appellants and they deserve to be acquitted from the charges levelled against them.6. Learned Public Prosecutor has on the other hand supported the judgment of the trial court and has stated that there is no reason to disbelieve the evidence produced on behalf of the prosecution. It is, therefore, urged that the learned trial court has wrongly convicted the accused appellants and they deserve to be acquitted from the charges levelled against them.6. Learned Public Prosecutor has on the other hand supported the judgment of the trial court and has stated that there is no reason to disbelieve the evidence produced on behalf of the prosecution. He has stressed that the evidence given by PW 4 Rajendra Singh is totally reliable as he is an independent witness. He has also pointed out that the injured could not speak for several days on account of severe injuries caused by the accused appellants on his head and they have been rightly convicted by the trial court. He has drawn my attention to the case of Mangtu v. State of Rajasthan 1977 Cr. LR (Raj.) 179 , where in it was held by this court that when common intention of 3 accused persons is proved beyond reasonable doubt, they were rightly convicted under Section 307 read with Section 34 I.P.C.7. Mst. Kaushalya, PW 1 has stated in her statement that she saw Nand Singh lying on the stones in front of the house of the accused appellants. In cross examination, she has stated that at about 40-50 Gadis of big stones were lying outside the house of the appellant Vijai Shankar. She has also stated that at the time when the occurrence took place, school was running in her house. She has also stated that PW 4 Rajendra Singh came out from the school and enquired from her as to what had taken place. Thereupon, she replied to him that she does not know about it. She has further stated that PW 7 Master Mohanlal was, at that time inside the school. It is significant to note that PW 2 Brij Kanwar, mother of injured Nand Singh has stated in her statement that one day earlier to the day of occurrence. Ram Chander Brahmin had come and enquired about Nand Singh. He told her that nobody is saving him from Vijai Shankar, who is beating him. In cross-examination, she hesitated that when Ram Chander had come to her house 2 days earlier than the day of occurrence, Nand Singh was there and Ram Chander had told Nand Singh that Vijai Singh and others were beating him.8. PW 4 Rajendra Singh is 11 years old boy. In cross-examination, she hesitated that when Ram Chander had come to her house 2 days earlier than the day of occurrence, Nand Singh was there and Ram Chander had told Nand Singh that Vijai Singh and others were beating him.8. PW 4 Rajendra Singh is 11 years old boy. He is said to be an eye witness of the occurrence. However, his name does not appear in the FIR nor injured Nand Singh mentioned his name in his statement. As pointed out by the learned Counsel for the appellants that PW 1 Mst. Kaushalya has stated that at the time of occurrence this witness was inside the school and thereafter came out and enquired from her as to what had happened. This shows that if this witness had seen the occurrence himself there was no question of his enquiring from PW 1 as to what had happened. Apart from this, if he was an eye-witness, there was no reason why his statement could not have been recorded by the police under Section 161 Criminal Procedure Code without any delay, in this case, his statement has been recorded on 26-3-1977, which is nearly after 3 months. In his police statement he has stated that at the time of occurrence, Nand Singh was drunk, but in his statement recorded in the court, he has denied to have said so, in these circumstances, the evidence of this witness does not inspire any confidence. In the case of G.B. Patel v. State of Maharashtra 1979 Cr. LJ 51 their Lordships of the Supreme Court held that the "delay of few hours, simpliciter, in recording the statements of eye witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. But it may assume such character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. Thus under the facts and circumstances of the case delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story." it was further held that 'normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses in the case of Babu Montana and Ors. v. State of Rajasthan 1986 Cr.LR (Raj.) 578 this court held that nonexamination of eye witnesses immediately after the incident is certainly fatal to the prosecution story, which creates doubt in the whole prosecution story and shows that either the eye witnesses were not present at the spot at the time of alleged occurrence and they have been made out subsequently, or they have not stated the true and correct story and after giving thinking on the matter, after some days they have concocted a new story and have given their statements in the police. So, the investigation was not fair in this case, which created doubt in the prosecution story.9. It will, therefore, be seen that it was expected of the Investigating Officer in this case to have examined Rajendra PW 4, who is said to be the eye witness soon after the occurrence as be lived in the same village and was easily available.10. PW 6 Kamal Kumar, who is a Patwari has stated that in the first instance he saw some persons standing outside the house of Ram Chander Pancholi, where Nand Singh injured and Vijai Shanker were quarrelling. He interfered and thereafter Nand Singh sat out site the house of Ram Chander on the bench and Vijai Shanker went away towards his village. After some time, he saw Nand Singh taking out a stick (Danda) from the Kuchha roof of the house of Ram Chander and Nand Singh started going towards the house of Vijai Shanker loudly saying that he will set everything on fire & will kill him. After some time, he saw Nand Singh taking out a stick (Danda) from the Kuchha roof of the house of Ram Chander and Nand Singh started going towards the house of Vijai Shanker loudly saying that he will set everything on fire & will kill him. He also saw Vijai Shanker and other accused persons coming from other side and Vijai Shanker and Hansraj had sticks in their hands. On this he thought that both the parties are bent upon creating quarrel and went away in the house of Shri Krishan Dhaker. In cross-examination, he has stated that Nand Singh was also shouting that be was Khatri and had come to save Brahmins. He has further stated that Nand Singh was smelling of wine.11. PW 7 Mohan Lal has supported the statement given by PW 6. He has further stated that on hearing noise, became out and saw injured Nand Singh lying on Chabutara of Ram Chander Pancholi. He called Rajendra Singh and told him to inform the family members of Nand Singh. He further says that he did not enquire anything from Rajendra Singh about the incident nor Rajendra Singh himself told him anything about it. In cross-examination, he says that it is correct that when Nand Singh armed with stick went towards the house of Vijai Shanker, at that time, Nand Singh tried to hit Hansraj with the stick, but it did not strike. Thereupon Hansraj started running away from the site, but Nand Singh also ran behind him. He has also stated that Nand Singh was drunk at the time of incident. This witness has been declared hostile by the prosecution.12. PW 10 is injured Nand Singh himself. He has stated in cross-examination that at the time of occurrence, Kamal Kumar Patwari and Ram Chander Dhakad were present. Thus he does not state that Rajendra Singh PW 4 and Mohan Lal PW 7 were present at the time of occurrence. In his statement, he also has not been able to specifically state who caused the grevious injury on his head. He has stated that he was struck from behind.13. PW 5 Dr. S.S. Sinha has stated that injuries on the head caused to the injured could be caused on account of falling on the stones also. All the eye witnesses have stated that the accused appellants gave Lathi blows to injured Nand Singh.14. He has stated that he was struck from behind.13. PW 5 Dr. S.S. Sinha has stated that injuries on the head caused to the injured could be caused on account of falling on the stones also. All the eye witnesses have stated that the accused appellants gave Lathi blows to injured Nand Singh.14. It has been urged by the learned Counsel for the appellants that it is clear from the evidence that only one blow which was given by the accused appellants, as per the allegation of the prosecution which also goes to show, even if this may be taken to be correct, that none of the accused appellants had any intention to murder injured Nand Singh. My attention has been drawn to the case of Dev Narain v. State of UP. 1973 SCC (Cr.) 330 , in which their Lordships of the Supreme Court discussed the commencement of right of private defence and continuance of the same. It was held that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat 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. 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 mis-understanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful agression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right. It was further held that "when a blow is aimed at a vulnerable part like the head even by a Lathi which may prove instantaneously fatal, and cases are not unknown in which such a blow by a Lathi has actually proved instantaneously fatal, it cannot 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 exeitement or disturbed mental equilibrium it is some what difficult to expect parties facing grave aggression to cooly weigh as if in golden scale 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."15. In this case as is evident from the evidence above that the prosecution witnesses themselves have stated that injured Nand Singh was drunk and was shouting that he will set fire and will kill and that he is Khatri and had come to save Brahmins. He was also armed with a stick and it was he who first attacked the appellant Hansraj with stick, but he saved himself and ran away from the scene. Thereupon, injured Nand Singh chased him with stick in his hand. This shows that there was reasonable apprehension to the body of the accused appellants from attempt of striking Lathi blow by injured Nand Singh and the accused appellants were well within their rights to save themselves and exercise their right of private defence. As per the statement of PW 4 Rajendra Singh, in Ex.D 1 each one of them gave Lathi blows which shows that the intention of the accused appellants was to save themselves and not to cause death of injured Nand Singh, Apart from this, since it has not been established from the evidence of the prosecution as to who was the author of grevious injury on the head of the injured, the accused appellants could not have been convicted under Section 307 I.P.C. My attention has been drawn to the case of Achla Ram v. State of Rajasthan 1983 Cr.LR (Raj.) 72 . In this case, it was held that since it was not possible to arrive at a conclusion that who caused grevious injury on the parietal region of the skull of Mohd. Khan, conviction under Section 307 I.P.C. was altered to one under Section 323 I.P.C. and the accused persons were sentenced to the imprisonment already undergone. The authority case of Mangtu v. State (supra) cited by the learned Public Prosecutor has no bearing on the facts of the case as the accused appellants could not have any common intention as it was injured Nand Singh who went to the house of appellant Vijai Shanker and started quarrelling himself. The authority case of Mangtu v. State (supra) cited by the learned Public Prosecutor has no bearing on the facts of the case as the accused appellants could not have any common intention as it was injured Nand Singh who went to the house of appellant Vijai Shanker and started quarrelling himself. The accused appellants, as discussed above, had no way out but to use their right of private defence when injured Nand Singh struck appellant Hansraj with stick raising shouts.16. The result of the above discussion is that I accept this appeal, set-aside the conviction and sentences awarded to the appellants by the learned Additional Sessions Judge Baran and acquit them of the charges levelled against them.Appeal Allowed. *******