JUDGMENT 1. - The learned Additional Sessions Judge, Baran under his judgment dated May 18, 1979 convicted the accused-appellant under Section 304 Part II IPC and sentenced him to undergo rigorous imprisonment for four years and a. fine of Rs. 1,000/- or in default of payment of fine, to further suffer six months rigorous imprisonment. The accused-appellant has also been convicted under Sec 324 IPC and has been sentenced to undergo rigorous imprisonment for two years and a fine of Rs 1000/-or in default of payment of fine to further suffer rigorous imprisonment for six months. Both the substantive sentences were ordered to run concurrently. 2. One Ramesh Chand Punjabi by caste resident of Chhabra obtained a permit from the R.T.O. Kota to ply a taxi (No. RSR 9365). The said taxi was to be plied in between Chhabra City and Chhabra Railway station. Prior to the issue of the aforesaid permit to the above Ramesh Chand about 20 Tongawalas used to operate in between Chhabra City and Chhabra Railway Station and there is sufficient material on record that by the issue of permit to Ramesh Chand to to ply the taxi on the above route, the Tongawalas became angry and their temper had risen. On April 29, 1973, at about 3 p.m. Ramesh Chand was operating between Chhabra Station to Chhavra City and the Tongawalas took an exception the plying of the tempo on the route There was some altercation and some, incident took place Again at about 8 p. m. on the same day i.e. April 29, 1978 Ashok Kumar, accused-appellant was driving the said tempo The Tongawalas t made an attempt to stop the accused-appellant from plying the tempo and for that purpose the tempo was encircled by Tongawalas. It is alleged that the accused-appellant struck his tempo against many shops and damaged the same. The tempo was taken and was made to stay there. The case of the prosecution further is that the accused-appellant armed with a knife came from nearby lane and caused injuries to Munnu Khan, Abdul Aziz and also to Nosha. It may be stated that Madanlal a boy aged 15-16 year happened to come on the spot and as per the case of the prosecution the appellant stabbed him and Madanlal died and thereafter post-mortem was also conducted. 3. Dr. It may be stated that Madanlal a boy aged 15-16 year happened to come on the spot and as per the case of the prosecution the appellant stabbed him and Madanlal died and thereafter post-mortem was also conducted. 3. Dr. T.R. Sikadar P.W. 20 was posted as Medical Officer Chhabra on April 29, 1978. He examined Naimul Haq who was found to have one injury-incised wound stabbing in nature 1" z 1/4" xx" on the right side of the chest in between the 7th 8th rib 2" away from the mid line The injury, in the opinion of the doctor, was simple at that time, but still X-ray was advised. He also examined Madanlal deceased who was having a incised wound stabbing in nature "1/2 x 1/2 x 3" on the right side of the abdomen 2" lateral to the ambilicus 1/2" above the parellal line intestine wallas protruded through the wound. The injury was grievous and was caused by sharp pointed object within 4 hour to 6 hours. The doctor advised X-ray for that injury. Madanlai died and Dr. S.S. Bakshi conducted the autopsy on his dead body on May 3, 1978. He noticed that there was operated wound opposed by 15 threat sutures on the right paramidial region and a cut wound through which a rubber drain was coming out on the abdomen right side. On internal examination the doctor found that the abdomen was slightly distended The peritoneum was redish in colour and was adherent at the serum. The small intestine showed stitched parts in the jejunum at 4 places, near the diodunium. Rest all organs were found healthy and congested. In the opinion of the doctor the cause of death was paritonities due to injury to the abdomen He further clarified that both the external injuries were surgical wounds when but examined The deceased developed peritonitis because of the injuries to the intestines thereby bringing out the facal matter in the abdominal cavity, On examining Gaffar Khan Dr. Sikder found that there was one bruise 21/2" on the left side of the mendable. On examining Noshey Khan the doctor found two injuries on his person- (i) incised wound 1" x ⅙" x 1/4" on the leftside of his loin. (ii) Haemotema 2" x 2" on the left parietal bone. Sikder found that there was one bruise 21/2" on the left side of the mendable. On examining Noshey Khan the doctor found two injuries on his person- (i) incised wound 1" x ⅙" x 1/4" on the leftside of his loin. (ii) Haemotema 2" x 2" on the left parietal bone. He also examined one Abdul Rashead son of Abdul Aziz and found the following injuries on his person- (i) 1" bone deep incised wound on the left parietal bone at the junction on the frontal bone. (ii) Incised wound 11/2" x ⅛" x ⅙" on medium side of the right great toe. Both the injuries were simple and were caused by sharp object within half hour to 6 hours of the examination- On examining Ashok Kumar Dr. Sikder found as many as four injuries on his person- (i) Lacerated wound 1/2 x ⅛" x 1/12" on the left side of the chin. (ii) Bruise 2" x 11/2" around injury No. 1 (iii) Bruise 7" x 1" on the back crossing the scapular left to right. (vi) Bruise 4" x 2" on the right kidney region. 4. A knife was recovered during the investigation from Noshey Khan who had given out that he had given out that he had snatched it from the accused-appellant A charge-sheet was filed and accused-appellant alongwith others was tried by the learned Additional Sessions Judge, Baran. The accused-appellant was convicted and sentenced as aforesaid, by the trial court. 5. During the examination the defence of the accused was that he was beaten by Noshey Khan and his taxi was damaged and it was Noshey Khan who had actually given a knife blow to the deceased Madanlal. He further stated in his statement under Section 313 Cr P.C. that when Noshey Khan aimed knife blow at him (accused) he (accused) saved himself and the knife blended on Madanlal The accused-examined DW. 1 Bhag Chand. Learned Sessions Judge convicted and sentenced the accused-appellant as aforesaid. The other accused was also convicted for minor offences, but he did not appeal. 6. The main contention of the learned counsel for the accused-appellants is that the witnesses for the prosecution who have stated against the accused-appellant are all tongawalas. They were the agitators because a permit was granted to Ramesh to ply his taxi from Chhabra City to Chhabra Railway Station. 6. The main contention of the learned counsel for the accused-appellants is that the witnesses for the prosecution who have stated against the accused-appellant are all tongawalas. They were the agitators because a permit was granted to Ramesh to ply his taxi from Chhabra City to Chhabra Railway Station. He contends that the accused-appellant also received injuries, a reference to which has been made in the earlier part of this judgment and there is material on record that taxi was also damaged. His seats were cut with the knife. The accused-appellant was not the author of the injuries to Madanlal and even if it is established that he caused injuries to Madanlal it can be said that the accused being surrounded by the tongawalas and was being beaten and his taxi was being damaged, then the injuries were caused by him in the right of private defence of person as well as property. 7. There being no dispute that because of the issue of the permit by the RTO Kota to Ramesh, who plied his taxi in between the Chhabra City and baba Railway Station the tongawalas did not take it lightly and they did their best to prevent the plying of the taxi by Ramesh. Even the accused-appellant did not impute that he was driving the said tempo at about 8 p m. on April 29, 1978. A look at the evidence led on behalf of the prosecution as well as the documentary evidence, more particularly Ex. P. 9 the seizure memo of tempo No R-.R 9365 will show that a lot of damage has been caused to the said tempo. It is also mentioned in Ex P. 9 that both head-lights were broken, shearing had been damaged, bonus had been damaged, side indicators were broken. Attempt has been made on behalf of the prosecution to say that it was the accused-appellant who was driving the tempo and he struck his tempo against many shops and then it was damaged It does not appeal to reason, unless one has gone mad, he will damage his property himself. It has come in the evidence that tongawals agitated and they took upon themselves to see that despite the fact that Ramesh Chand secured a permit to ply his taxi, he not allowed to ply it. It has come in the evidence that tongawals agitated and they took upon themselves to see that despite the fact that Ramesh Chand secured a permit to ply his taxi, he not allowed to ply it. So far as the accused-appellant is concerned he denied that he was armed with a knife and caused any injury to anybody. When the occurrence took place it was dark and the learned counsel for the appellant submits that the identity of the accused-appellant who was driving the taxi, he has been falsely implicated in this case. A look at the record as well as the judgment of the learned trial court will show that the identity of the accused-appellant as the person who was armed with a knife and caused injuries with it the case of the prosecution rests on the testimony of Naimul haq PW 4 Himmat Singh PW 6, Mohd. Intzar alias Manzur PW 15, Nosha PW 16 and Abdul Aziz PW 19. Let us scrutinise the evidence of the above witnesses to see as to whether the identity of the accused is established or not. 8. PW. 4 Naimul Haq is an injured person and he received injuries, including injuries by sharp weapon He States that on hearing the noise in the market be went there and saw that Ashok was driving the tempo and was trying to injure the persons who were there and those persons in order to save themselves had entered some shops. Then Ashok went with the tempo towards the Station ' and he returned to his house. When he was returning home he saw that Ashok armed with a knife came there He further states that besides the knife, Ashok had a danda also with him in his hand He caused injuries with knife to him At the time of the said incident Manju. Aziz and Nosha were present. He admits that if any attempt would have been made by Ashok to take the tempo towards the city he could not succeed because the tempo was surrounded by tongawalas. Aziz and Nosha were present. He admits that if any attempt would have been made by Ashok to take the tempo towards the city he could not succeed because the tempo was surrounded by tongawalas. He denied that any damage was caused to the tempo at that time and stated that because the accused-appellant had struck his tempo with a shop there was some damage to its front portion He denied that the accused had by force taken out the tempo and he was beaten He was confronted with his police statement Ex. D/4 many paits of the statement in the court were not said by him before the / police including the fact that persons in order to save themselves from Ashok who was driving the tempo and was trying to over-run them had entered the shop. Immediately Ashok had come with a knife from the street from the side of hospital. He also states that the accused-appellant caused injuries to Madanlal by knife and then to him (the witness). In the police statement he did not state that Ashok had given the blow by knife to Madanlal When he was confronted with the police statement, more so its portion 'C to `O' where a he stated that he does not state know as to who gave the knife blow His statement that the accused gave a blow by knife to Madanlal, therefore, cannot be relied upon in view of the omission on this material fact in his statement Ex. D/4. 9. Himmat Singh PW. 4 was Head Moharir in the Police Station, Chhabra at the relevant time and he states that at about 8 p.m. on April 29, 1978 a boy came running to the police station and stated that tempowala and tongawalas are fighting. The SHO was at the Police Station and he told him that he was going to the spot and Himmat Singh should go to RAC office and bring some RAC persons. Vidyadhat was one of the RAC personels. He states that the tempowala wanted to ply the tempo. They pacified the crowd. In the meantime a boy came running from the street of hospital and people started saying that he is Ashok Kumar. He also states that the boy was about 15 years and given a knife blow to him. Vidyadhat was one of the RAC personels. He states that the tempowala wanted to ply the tempo. They pacified the crowd. In the meantime a boy came running from the street of hospital and people started saying that he is Ashok Kumar. He also states that the boy was about 15 years and given a knife blow to him. Vidyadhar had caught hold of Ashok Kumar- From his statement therefore it cannot be said that he saw the accused-appellant giving any blow to anyone. He also states in the cross-examination that a report had been lodged by Ramesh at the Police Station that tongawalas did not allow him to ply his tempo. He further states that tongawalas did not allow Ramesh to ply the taxi when reached the spot. Hanju Nete was the leader of that crowd and Nosha was also present He denied the suggestion that in fact it was Nosha who had given the blow. He admits that he saw the injuries on the person of Ashok Kumar in the police station Vidyadhar P.W. 5, was Head Constable No. 118 in the RAC and had gone to the spot at about 8 p. m. on hearing a quarrel in the market. He has stated that the crowed was specified by him and other police officials. Then a boy came with a lathi from the side of the lane which comes from the hospital. One from amongst the crowd gave out that it was Ashok Kumar. The boy returned to the street and five minutes thereafter the boy came running and the other boy gave out that Ashok Kumar had caused injuries with the weapon. The boy fell on the ground and then gave out that Ashok Kumar had given knife below to him. Vidyadhar caught hold of Ashok Kumar by hair and after some time Himmat Singh also arrived there who caught hold of Ashok. Then a person from the crowd snatched the knife from the appellant and gave it to the Thanedar. Chanda Ram PW 13 is a constable and was with other officers at the spot at the time of incident. He states that tempo was standing in the market and the tongawalas had surrounded it. Then a person from the crowd snatched the knife from the appellant and gave it to the Thanedar. Chanda Ram PW 13 is a constable and was with other officers at the spot at the time of incident. He states that tempo was standing in the market and the tongawalas had surrounded it. In the meantime some one from the people said that Ashok had given a knife blow and he went to the shop of Painwala and saw that Ashok was lying on the ground. According to him, Nosha had snatched the knife from the hands of accused. He states that he knew Ashok by face and came prior to the occurrence. He has also stated at the time of incident 2-3 passengers were sitting in the tempo, PW 15 is Mohd. Intzar alias Manju. Besides stating that the accused had given blow by knife to Madanlal, he also states that RAC constable whom he does not know had caught hold of Ashok Kumar He states that a blow with knife was given. According to his statement, there are twenty tongawalas in Chhabra City. There are only four trains which arrive at Chhabra station in 24 hours. He admits about the incident that 2-3 Mohammadan tongawalas stopped Ramesh from plying the tempo He also states that when the crowd had stopped the tempo he had told the crowd that the tempo was being plied under the permit and it should not be stopped He also states that it is correct that his advice was not adhered to by the tongawalas and they did not allow the tempo to ply. He denied the suggestion that tongawalis had attacked Ashok Kumar and he ran with the tempo in the market. Nosba is PW. 16, who is one of the injured persons. According to him at 8 p.m. four tongawalas were standing in the Police Station and there talks were going on to compromise between tongawalas and taxi Over and the driver of the tempo. Chhote tongawala arrived and said that Ashok was driving the tempo and has struck the empo against many shops and the some therefore had been injured. He also gave out that Ashok had gone towards the Station. Chhote tongawala arrived and said that Ashok was driving the tempo and has struck the empo against many shops and the some therefore had been injured. He also gave out that Ashok had gone towards the Station. According to his statement he and others were standing near the Municipal Board and Ashok came with a knife and caused injuries to Naimul Haq, Madanlal and the third blow was aimed by Ashok at him (Noysha). Ashok was caught-hold by the police officers and it was he who snatched the knife from his hand and gave it to thanedar. He admits about the incident which took place at 3 30 p m. that day and Ramesh lodged a report. He denied that he was armed with knife and it is he who aimed the knife and caused injuries to Madanlal, or any-body else who received injuries. At one stage of his statement he stated that he came to know about the fact of Ashok Kumar giving blow with knife to Madanlal, but immediately said that he witnessed the occurrence and Ashok gave the knife blow to Madanlal in his presence. He also I states that nosooner Ashok gave the knife blow to him, he was apprehended by the I RAC constable Abdul Aziz is the last witness so far as the identity of the I accused is concerned. He states that people standing there were giving out that Ashok had damaged the tempo by sucking it against shops. He also states that Ashok came there and be was armed with knife. He stabbed a boy. He also gave a blow by knife to Naimul Haq and RAC persons who were present, caught ' bold of Ashok and it was at that stage that Nosha snatched the knife from him , and gave it to the Thanedar. 10. From the above evidence, it can be said that it was the accused who was aimed with a knife No doubt Madanlal deceased in his dying declaration has not named the appellant as his assailant, but at the same time he has not named any other person as his assailant and from the evidence discussed above, it can be said that it was the accused-appellant, who caused knife blows to injured persons as well as deceased Madanlal. 11. 11. The question is as to whether in the circumstances in which the appellant was placed that he was carrying few passengers in his tempo the tongawalas stopped his tempo and appellant also received injuries at that time, there was general apprehension to him of grievous injuries at the hands of his appellants His tempo was surrounded and togawalas did not allow to ply the tempo. A reference has already been made to the seizure memo of tempo. From it will be clear that there was a lot of demander. It can be said that the appellant was not allowed to ply his tempo on the route under the permit issued by the RTO. No attempt was made by the prosecution to explain the injuries It can be said that it was Tongewalas who caused damage to the tempo and who caused injuries to the appellant who had right to ply the tempo. So far as deceased Madanlal is concerned, it nobodys case that there was enmity in between him and the appellant and even as per the case of the prosecution Madanlal happened to be in the crowd and has received injury i.e. a single injury. 12. It can therefore be said that as per evidence on record the accused-appellant was surrounded by tongawalas who were in aggressive mood, caused injuries to the appellant and damage to the and whether under such circumstances if the accused caused injuries to the aforesaid persons, he committed any offence? It is well settled that anything which is done in the exercise of right of private defence of person or property is not an offence. Right of private defence under Sec 97 IPC extends to defend his own body and property and even against an offence of mischief No. doubt the right of private defence is subject to certain restrictions contained in Section 99 IPC. Placed in the situation as aforesaid if the accused caused injuries to the deceased as well as to other two persons, who have been named above, it cannot be said that the accused exceeded the right of private defence of person and property, and in opinion the case of the accused is fully established. Placed in the situation as aforesaid if the accused caused injuries to the deceased as well as to other two persons, who have been named above, it cannot be said that the accused exceeded the right of private defence of person and property, and in opinion the case of the accused is fully established. The law is settled that if a person pleads exception he has to prove it by preponderance of evidence and not beyond reasonable doubt as required to be proved by the prosecution against the accused. From the probability of the case, it can be said that the accused appellant caused injuries in exercise of his right of private defence. In the majority decision in the case of Prabhoo and others v. Emperor, AIR 1941. All 402 which authority has been relied upon by the Allahbad High Court in its latter decision in the case of Rishi Kesh Singh and others v. The State, AIR 1970 Allahabad 51 it has been held that if taking into facts and circumstances of the case including the evidence led by the accused in support of his plea of exception, which he pleads, a reasonable doubt is created in the mind of the court about the guilt of the accused, he is entitled to acquittal In my opinion, the case of the accused is covered by exception right of private defence of person and property, and the accused-appellant did not commit any offence. 13. Consequently, I allow this appeal set aside the judgment of conviction and sentence passed by the trial court against the accused-appellant. He is acquitted of the charges levelled against him. He is on bail. He need not surrender to his bail bonds which are here by discharged. *******