JUDGMENT 1. - This criminal appeal springs from the judgment dated 3.4.1981 of the Addl. Sess. Judge No. 1, Bharatpur, whereby the appellant, Mahendra Singh has been held peccant for the offence under Section 325, IPC, and sentenced to undergo 2 years' R.I. with a fine of Rs. 2,000/-, in default, two months' R.I. 2. Nawal Singh (informant) lodged a report at police station Bhusawar on 1.12.1979 alleging therein that, both, the complainant and the accused parties, used to irrigate their agricultural land from a well family known as 'Golaka Kua' situated in village Salimpur Kalan of Bhusawar police station whereupon an electric connection was obtained by one, Ram Sahaya (PW 10), that, on 26th morning of November, 1979 at about 81/2 O'clock, when he (informant), his son - Keshari Singh & Yadunath Singh - were watering from the said well with the aid of electric motor, five named in the report then arrived at the well switched off the electric motor and started hurling abuses, to which Kesari Singh and Yadunath Singh objected and asked as to why they switched off the electric motor, and than Yadunath Singh want on to re-start the electric motor but some of the accused over-powered him. Thereafter, Kesari Singh intervened but, Mahendra Singh is alleged to have inflicted shovel blow on the head of Kesari Singh - shovel was lifted by the accused-appellant from the well; as a result of shovel blow, Kesari Singh fell down and became unconscious. Thereafter, Mohar Singh (accused) is said to have inflicted lathi blow on the right hand of Kesari Singh. On hearing hullabaloo, Ram Dayal and Yaduveer with other village people came to the scene of occurrence and however, the accused persons ran away. Thereupon Kesari Singh was taken to Salimpur dispensary where its Incharge directed the injured to be taken to Bharatpur where he was medically examined. After x-ray a fracture of left parietal bone on the person of Kesari Singh was found. Kesari Singh remained as Indoor patient in Bharatpur hospital from 26.11.79 upto 22.12.1979. 3. After usual investigation, a challan was filed against five persons including the appellant for the offences under sections 307, 323 and 147, IPC. The learned trial Court framed charges for the said offences against all the accused persons. In all ten prosecution witnesses were examined. Kesari Singh remained as Indoor patient in Bharatpur hospital from 26.11.79 upto 22.12.1979. 3. After usual investigation, a challan was filed against five persons including the appellant for the offences under sections 307, 323 and 147, IPC. The learned trial Court framed charges for the said offences against all the accused persons. In all ten prosecution witnesses were examined. The statement of the accused-appellant were also recorded under Section 313 Cr.P.C. wherein they denied prosecution allegation. After due trial and hearing the parties, the learned trial Court acquitted four of the accused persons but convicted the appellant only for the offence under section 325, IPC. 4. Shri N. L. Tibrewal, expertise in legal gimmicks by quibbling legalities, on behalf of the accused-appellant, firstly wrangled that the first information report in the instant case was lodged after five days of the incident - this inordinate delay which has much significance has not at all been explained by the prosecution and its non-explanation is fatal for the prosecution; secondly that the accused-appellant, himself, sustained injuries which have also not been explained by the prosecution - that by itself is sufficient to create doubt in the prosecution case; thirdly that the action of the accused-appellant if any proved to have been committed, was protected under his right of private defence of his person as well as property; fourthly that, the prosecution has not succeeded in proving the guilty against the accused-appellant beyond reasonable doubt because the prosecution case has poor corroboration apart from over implication muchless false implication which devalue their credibility; fifthly that a cross case was also there against the complainant party wherein it was proved that the complainant party was aggressor on the day of incident but the learned trial Court failed to consider the defence theory; and in totality, according to the learned counsel, these features referred to above cannot be eschewed as irrelevant for and the entire gamut of facts and circumstances has to be adverted to on the question of holding the appellant peccant; and, therefore, the learned counsel ended by contending vociforcely that the learned trial Court committed serious error of misconception of law in the case. 5. 5. Learned Public Prosecutor, tout an contrarire, contended that looking to the facts and circumstances of the case, the learned trial Court was justified in convicting the accused-appellant; that, since the informant was regularly attending his son, Kesarsingh who was admitted in the hospital in serious condition so, he was not in a position to lodge the report - this circumstances has been brought on record and thereby the delay in lodging the report has been explained, and the learned trial court was convinced with the explanation of the delay and, it therefore was justified in holding the delay not fatal to the prosecution in the case. Learned Public prosecutor added that the injuries on the person of the accused appellant were superficial in nature so the learned trial Court was justified in not giving any benefit of these injuries to the accused. Lastly, the learned Public Prosecutor contended that it is not a case where the accused appellant was having any right of private defence of property and person. 6. Having carefully considered the rival contentions of the parties and on an over all conspectus of the entire facts and circumstances of the case, in my opinion, it is trite to say that the occurrence originated when both the parties were asserting their right of drawing water from a well; and admittedly, the accused-appellant sustained injuries and that the accused party was having a right of drawing water from the well inasmuch as all the accused persons who faced trial came at the scene of occurrence duly unarmed; and further, as per the prosecution itself, the accused-appellant inflicted on the head of Kesari Singh blow of shovel which was lifted by him at the place of occurrence, itself. It is also admitted fact that the accused persons who faced trial, firstly stopped the electric motor and gave beating to Yadunath Singh (PW4) by fists and leg when he tried to re-switch on the electric motor. The learned trial Court only convicted the accused-appellant and acquitted other four co-accused against whom specific overtact was alleged by the prosecution. It is thus clear that the prosecution witnesses were disbelieved as against four co-accused but were believed only against the accused-appellant. Undisputedly, the occurrence took place on 26.11.79 and report of which was lodged on 1.12.1979. 7. The learned trial Court only convicted the accused-appellant and acquitted other four co-accused against whom specific overtact was alleged by the prosecution. It is thus clear that the prosecution witnesses were disbelieved as against four co-accused but were believed only against the accused-appellant. Undisputedly, the occurrence took place on 26.11.79 and report of which was lodged on 1.12.1979. 7. It is settled principle of law that the first information report is an important piece of evidence. It is a statement made soon after the occurrence, hence the memory of informant is fresh and it is also unlikely that he had opportunities of fabrication. It is the basis of the case, it puts the police in action; it represents the case set up by the informant at that time. Its objects is to obtain early information of alleged criminal activity to record the circumstances before there is time for them to be forgotten or embellished. 8. The Courts have always viewed the information with grave suspicion when there has been delay in giving it. The delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. People very often try to foist crimes committed by some persons known or unknown on the personal enemies of the informants, after consultation with other people and in many cases people charged with offences have been acquitted because of the suspicion arising from the delay in giving the information. A report lodged immediately after the occurrence has greater chances of being true. Where there is no satisfactory explanation for such delay, it is fatal to the prosecution. But, when the explanation for delay in giving the first information report is satisfactory the delay is not of material significance. 9. Thus, having benefited by the enlightments derived from the criminal jurisprudence, in my opinion, the question as to whether in the instant case, the delay in lodging the First information report has satisfactory been explained, calls for a more intrinsical examination on the evidence adduced by the prosecution. 10. It is an admitted fact that the informant Nawal Singh has three sons - Kesari Singh was injured and admitted in hospital - admittedly other two sons did not lodge any report. 10. It is an admitted fact that the informant Nawal Singh has three sons - Kesari Singh was injured and admitted in hospital - admittedly other two sons did not lodge any report. Yadunath Singh (PW 4) in his statement deposed that though he was present at the scene of occurrence but he did not go to the hospital alongwith his injured brother; and he remained at the field. Yadunath Singh (PW 4) did not assign any reason as to why did he not lodge the report. Similar is the version of the third son of Nawal Singh - who also did not care to lodge any report at the earliest. No explanation is forthcoming from the prosecution side as to why Yadunath Singh (PW 4) - an eye witness of the occurrence, did not care to lodge the report. His explanation in regard to delay in lodging the report does also not appear to be reasonable. Nawal Singh deposed that in Bhusawar as well as in Bharatpur, he told the doctors that this is a criminal case and a report be lodged at the police station. This part of his statement makes it precise that he was cautious that the report should have been lodged at the earliest and thereby he had directed the doctor concerned to give information about the occurrence to the police station. Contrarily Dr. R.D. Goyal (PW 5) states that he did not give any information to the police because the relatives of the injured had informed him (PW 5) that they were going to lodge the report at the police station. This explanation of doctor's failure to do what was his statutory duty was mere moonshine and with respect, this reason appears to me manifestly unsound inasmuch as discrepant to that of Nawal Singh and thus it cannot be said that in the present case, the delay has been explained. Thus, considered in the light of the surrounding circumstances, it is a case where the inordinate delay of five days in lodging the F. I. R. casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. Keeping in mind this all clouding infirmity. I have to scrutinised the evidence of the witnesses with a care and caution. 11. Keeping in mind this all clouding infirmity. I have to scrutinised the evidence of the witnesses with a care and caution. 11. Nawal Singh (PW 1) stated that the appellant inflicted shovel on the head of Kesari Singh from the sharp edged side. Similar are the versions given out by Yadunath Singh (PW 4), Kesari Singh (PW 6), Ramdayal (PW 7), Yaduvir (PW 8) but Dr. R. D. Goyal (PW 5) stated that during examination medically, he found two injuries on the person of Kesari Singh as shown in Ex. P. 18 - out of which one was lacerated wound over the left parietal region and other one was an abrasion on left fore arm - both were stated to have been caused by blunt object - injury No. 2 was stated to be simple in nature. Dr. R. D. Goyal (PW 5) also stated that the injury No. 1 could not be caused by shovel being pointed in nature. In his re-examination he (Dr.) stated that the injury No. 1 was possible by blunt shovel which should have been rounded. So, according to Dr. R. D. Goyal (PW 5), injury No. 1 could never be caused by shovel having sharp edged point but, as stated earlier, the eye witnesses have given definite version that the shovel was having sharp edge and sharp edged side of the shovel was used by the appellant while inflicting blow on the person of Kesari Singh. It is thus clear there is inconsistency in with the testimony of the eye witnesses and the expert witness. Though medical expert's opinion is not always final and binding, but, in the instant case it corroborates other circumstances which indicate that the prosecution failed to prove as to with which object the injury was inflicted, and so in view of the fact that the report was lodged after a great delay, this circumstance also casts a speck on the prosecution version devaluing their credibility. I lend support from AIR 1988 SC 1158 . 12. The incident originated because both the parties, as stated earlier, were asserting their right of drawing water from the well, prosecution version is that Yadunath Singh and Kesarisingh were drawing water at the relevant time but on the other hand, the defence version set up by the accused-persons is that on the fateful day they were drawing water from the well. Nawal Singh (PW 1) stated that they usually takes the water from well during night and they started drawing water at 2 A.M. Further Nawal Singh (PW 1) admitted that they used to take water from the well only for four hours and that the concerned parties used to draw water from the well by rotation that, after their rotation, the accused party used to draw water from the well, that he used to take water in their field which consists of only 19 biswas. Admissions wrung out from the witness in his evidence as PW1 show that because of the settled rotation, the complainant party used to draw water from the said well since 2 AM and according to the mutual understanding, the complainant party was entitled to draw water upto 6 AM only. Yadunath Singh (PW 4) deposed that Ram Sahaya (PW 10) who got the electric connection on the well has decided the timings and by that decision, every consenting party had a right to draw water from well only for six hours and on the day of occurrence they started electric motor after obtaining permission of Ram Sahaya (PW 10). Yadunath Singh (PW 4) in his statement clearly admitted that their hours for drawing water were fixed from 12 O'clock in night to 4 O'clock in morning. From the testimony of Yadunath Singh (PW 4) also it is clear that the complainant party was entitled to draw water from well only upto 4 O' clock in the early morning. Kesari Singh (PW 6) also admitted that the concerned party used to draw water from well only for four hours by their rotation and their chance was first in rotation and after them, the accused persons were to draw water. According to him (PW 6), they started motor at 3 O' clock in the night but because of the fluctuation in electric supply, they were drawing water upto 8.30 AM at which time the occurrence took place. From the testimony of Kesari Singh (PW 6), it is clear that the complainant party was entitled to draw water only for four hours and it started electric motor at 3 O' clock in the night and according to their mutual settlement, it was entitled to take water only upto 7 AM. 13. From the testimony of Kesari Singh (PW 6), it is clear that the complainant party was entitled to draw water only for four hours and it started electric motor at 3 O' clock in the night and according to their mutual settlement, it was entitled to take water only upto 7 AM. 13. Ram Dayal (PW 7) stated that at the time of occurrence the accused party was insisting on drawing water by saying that now as per the mutual agreement they had right to draw water and he (accused) stopped electric connection saying that now they would draw water from the well. On these premises, Ramsahaya (PW 10) is an important witness who according to the prosecution was the person who got electric connection on the disputed well and he was the person who made arrangement for drawing water and as per his made arrangements, the complainant party was to draw water for four hours in the night. Ramsahaya (PW 10) has been claimed as eye witness of the occurrence but he did not support the prosecution as he has given different versions before the trial court. He (PW 10) stated that the complainant party as well as the accused-party used to take water from the well one after the other for two days. 14. From the above discussion, it appears that the complainant party was not entitled to draw water from the well after 4 AM or latest by 6 AM and at the relevant time, at 8.30 AM the accused party had its turn in rotation to draw water from the well but as per the prosecution evidence it also appears that the complainant party was insisting to draw water from the well at 8.30 a. m. or after that and in the situation, the accused party admittedly entitled to draw water from the well, were justified in protesting or refraining the complainant party from drawing water from the disputed well and in such a circumstance, it appears that the complainant party was at fault and in these circumstances, the injuries sustained on the person of the accused-appellant becomes relevant. The learned trial court ignored this circumstance by observing that the injury is superficial in nature but in view of the discussions (ut supra) it appears that the accused-appellant was beaten first though as per the prosecution evidence no provocation was there from the appellant's side. The learned trial court ignored this circumstance by observing that the injury is superficial in nature but in view of the discussions (ut supra) it appears that the accused-appellant was beaten first though as per the prosecution evidence no provocation was there from the appellant's side. Further, as per the prosecution evidence, it was Mohar Singh who stopped the electric motor and Yadunath Singh wanted to re-start the electric motor and at that time, he was beaten by fists and leg by the accused persons. More so, from the evidence of the prosecution, initially the accused persons were not having any intention to cause any grievous injury. In these circumstances, a question arises as to why Kesari Singh was given a blow which resulted in fracture of his parietal bone. I may state that on this premises, the prosecution version is ambiguous being not clear, and it can be said that the prosecution concealed the genesis of the offence and failed to give any specific explanation as to how situation has arisen wherein Kesari Singh sustained fracture of parietal bone. The discussion made above persuade myself to observe that the accused party was having a right of private defence or property and person. 15. In Hetram v. State of Punjab, 1970 Cr. L. J. 352 the Apex Court observed that where an individual citizen or his property is faced with a danger and immediate aid from the state machinery is not readily available the individual citizen is entitled to protect himself and his property. 16. 15. In Hetram v. State of Punjab, 1970 Cr. L. J. 352 the Apex Court observed that where an individual citizen or his property is faced with a danger and immediate aid from the state machinery is not readily available the individual citizen is entitled to protect himself and his property. 16. In the instant case, as pointed out above, the accused-appellant and his party had its turn in rotation to draw water from the disputed well at the time of occurrence whereas the complainant party insisted on drawing water continuously from the well on the false pretext that there had been fluctuation in electric supply (there is nothing in evidence on record to support the pretext (supra) and thus this circumstances has aggravated the complainant party to stop and refrain the accused-appellant from switching on the electric motor so as to draw water from the well for irrigating his field at the time when he had his turn in rotation and had right to draw water; and on that account, the incident originated and the accused-appellant had in his right of property and person occasioned to cause injury on the person who assaulted him and refrained him from drawing water from well. Thus, the accused-appellant was justified in protecting himself and his right over well for drawing water during his turn in rotation. 17. In sum I find that the over-all view of the evidence taken by the trial Court was not reasonable. Some of the reasons given by the trial Court, if taken individually, do not appear to be substantial or impeachable, but taken in their totality, they certainly render the evidence of the material prosecution witnesses unsafe to be acted upon. 18. All the infirmities and flaws pointed out by the learned counsel for the accused-appellant assumed importance, when considered in the light of the all-pervading circumstance that there was in-ordinate delay in lodging the first information report which remained unexplained. This circumstance, looming large in the background, inevitably leads to the conclusion, that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady, setting highly redolent of doubt and suspicions. 19. This all - vitiating circumstance. This circumstance, looming large in the background, inevitably leads to the conclusion, that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady, setting highly redolent of doubt and suspicions. 19. This all - vitiating circumstance. I say so, could not be, and has not been, effectively dispelled by the trial Court, except by a blind acceptance of the nature of the injury on the person of the injured. 20. For all the foregoing reasons I allow this appeal, set aside the conviction of the appellant and acquit him of the charges levelled against him. The appellant is on bail. His bail bonds stand cancelled, he need not surrender.Appeal allowed. *******