JUDGMENT 1. - This criminal appeal is directed against the judgment dated 31st August, 1978 passed by the Additional Sessions Judge, Saran, whereby the appellant has been convicted under Section 304, Part II IPC, and sentenced to undergo five years rigorous imprisonment with a fine of Rs. 200/ in default of payment of fine, to further undergo rigorous imprisonment for six month. 2. Brief facts giving rise to this appeal are that a report was lodged on 7-10-1977 at 3.00 P.M. at the police station Chhipabadod by Ganpatlal, alleging therein that, on the previous day, their bullock entered into the filed of his nephew Birda were the maize crop was standing and when his wife, Kajodi went to the well Birda started abusing her and gave her threats to beat. She came home and protested, on which he and Mangilal went to their field possessed by them jointly. Mangilal started ploughing. It has further been alleged that when he (Ganpatlal) reached, he asked Birda as to why did he abuse his wife-upon this, Birda repeated abuses and at that time his brother Mangilal stopped the ploughing and came to Birda to make him understand on which Birda gave one lathi blow as a result of which he (Mangilal) fell down bleeding Birda also gave lathi blow on the left should and the hand of Ganpat Mangilal was lying unconscious since then. It was further alleged that Birda Lal Meena and Rajrang Meena had seen this incident. In the report it has also stated that he was accompanied by Gopilal Gordhan. and Hari Vallabh when injured Mangilal was brought on a cot in an injured position and report was lodged. Mangilal was medically examined at Sartha and the doctor found two injuries on his person-one lacearted wound on the left parietal region and the another bruise. Injury No I was found to be grievous and the injured was referred for x-ray to K.P.S Hospital, Kota where the Radiologist opined that there was a fracture of parietal region. Kangilal latter on succumbed to the injuries on 15-10-1973. 3. After usual investigation, a charge sheet was filed against the accused-appellant for the offence under Section 304, IPC The learned Additional Sessions Judge framed the charge under Section 04, IPC and tried the case in all nine witnesses were examined by the prosecution Dr. Kangilal latter on succumbed to the injuries on 15-10-1973. 3. After usual investigation, a charge sheet was filed against the accused-appellant for the offence under Section 304, IPC The learned Additional Sessions Judge framed the charge under Section 04, IPC and tried the case in all nine witnesses were examined by the prosecution Dr. Kailash Chand (PW 13) proved injuries reports of which were prepared by him and Dr Ram Singh (PW 6) testified the skisgram and Dr. D.R. Chaudhary (PW 15) proved the post mortem report The learned Additional Sessions Judge after hearing the parties, came to the conclusion that no offence under Section 302. IPC is committed by the appellant but the learned Addl Sessions Judge found the appellant guilty for the offence under Section 3C4, part II, IPC, and sentenced as stated above. Hence this appeal. 4. I have gone through the record of the case and perused the judgment of the learned trial Court. 5. Shri Biri Singh learned counsel for the appellant contended that the report was lodged on 7.10.73 but the same was dispatched after a great delay to the concerned Court and the F.I.R. reached in Court on 29.10.1973. Therefore according to Shri Singh, the case of the prosecution as alleged in the F.I.R. becomes very doubtful and there was every possibility for the informant to have coloured the prosecution version in the F.I.R. Shri Singh also contended that looking to the statements recorded before the trial Court, it appears that toe version given in the F.I.R. is coloured one; that, the witnesses produced by the prosecution are not reliable witnesses and they have given contradictory statement having made a lot of improvements. 6. In the instant case, it has been admitted by the prosecution witnesses that the deceased, Mangilal, was having lathi in his hand and it was he who took initiative and tried to assault the accused-appellant and inflicted lathi blow on the person of the appellant. In this view of the matter, Shri Singh argued that if it is proved that the injuries sustained on the person of Mangilal were inflicted by the appellant then the appellant was having a right of private defence of body and, as such, in these circumstances, the appellant cannot be held responsible for the offence under Section 304, Part II, IPC. 7. 7. Shri Ajai Purohit, learned public prosecutor, on the other hand, wrangled that the learned trial court was justified in convicting the appellant because the offence against the appellant has been fully proved by the prosecution witnesses. 8. I have considered the points raised by the learned counsel for the parties. 9. Initially, the report was lodged by Ganpat at police station Chhipa Barod, which was entered in Roznamcha at S.No. 196 on 7.10.73, - Subsequently, the case was registered on 10.10.73 as No. 65/73 at police station Chhipa Barod. I have perused this report (Ex P 4) and looked at its contents - It appears that the case was registered at police station Chhipa Barod on 10.10.73 and the F.I.R. was chalked by the In-charge, Police Station at 1 p.m. but the report was received in the Court on 29.10.73 and the ebdorsement made by Munsif Magistrate, Chhabra. is of 5th November, 1973. It is thus clear that though the case was registered on 10.10.73 but the report (F.I.R.) was received in the Court of Munsif & Judicial Magistrate probably on 29.10.73 because the remark appears to have been made by the concerned clerk and the Judicial Magistrate put his signatures on 5.11.1973 while drawing line "Baad darj register F.I.R. shamil challan darj ho". In these circumstances, it shall be presumed that the report (Ex. P. 4) was received in the court of Munsif & Judicial Magistrate, Chhabra on 5.11.73. 10. In Ishwar Singh v. State of Uttar Pradesh ( AIR 1976 SC 2423 ) their Lordships of the Supreme Court observed as under : "The extra ordinary delay in sending the F.I.R. is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence." 11. In Marudanal Augusti v. State of Kerala ( AIR 1980 SC 638 ) , the Supreme Court observed as under : "According to the allegation made in the F.I.R. the attack on deceased was a sudden and short one and was not likely to have been noticed by anybody unless he was actually present there. In Marudanal Augusti v. State of Kerala ( AIR 1980 SC 638 ) , the Supreme Court observed as under : "According to the allegation made in the F.I.R. the attack on deceased was a sudden and short one and was not likely to have been noticed by anybody unless he was actually present there. The most serious infirmity which appears in the case is that although the F.I.R. was lodged on the midnight of 23/24-6- it was dispatched to the sub-magistrate and received by him at 5-30 A.M. on the 25th of June, 1971 that is to say, there was a delay of as money as 29 hours in the receipt of the F.I.R. by the Sub-Magistrate. The Investigating Officer in spite of being questioned on this matter, does not appear to have given any explanation whatsoever, for this delay." A similar view was taken in the decision reported in 1973 Raj. Cri. Cases p. 340. 12. As stated earlier, the FIR was written on 7.10.1973 but the case was registered on 10.10.1973 and the report was received in the Court of Judicial Magistrate, Chhabra on 29.10.73. Thus, there is a delay of about 19 days as per the signature of the Magistrate concerned. The delay in dispatching the F.I.R. should have been explained by the prosecution but the same has not been done and not even a single question has been put before the Investigating Officer the person who dispatched the report to the Court of concerned Magistrate In these circumstances, it is patently clear that in the instant case, the report was sent to the concerned Magistrate after a great delay of about 19 days or 26 days: However, the provisions of Section 157, Code of Criminal Procedure were not followed; and in view of the observations quoted above in the above cited cases.it creates doubt that the contents in the F.I.R. are correct and no improvement or embeliments were introduced by distorting version, in the said report. 13. 13. As stated earlier, initially, the case of prosecution was that the appellant abused wife of Ganpat (informant) and on her protest, the informant alongwith Mangilal went to the well and protested about the behaviour of the appellant with his wife and at the time, Mangilal who reached earlier to him started ploughing - he (informant) asked Birda as to why he abused his wife but Birda repeated the abuses on which his brother, Mangilal, stopped ploughing and came to Birda to make him understand, thereupon, Birda gave one lathi blow on the head of Mangilal as a result of which he fell down bleeding. However, Ganpatlal (PW 2), informant, in his statement has given out a different version and be has deposed that on the complaint of his wife about hurling abuses by the appellant, he went to the field of the appellant at that time, his brother Mangilal, was ploughing the field the accused-appellant abused Mangilal also and at the time when the accused was abusing Mangilal, he (witness) was coming from the village, Ranva it is thus clear that the statement of Ganpatlal (PW 2) is discrepant to the facts which have been averred in the F.I.R. because, in that report, he has mentioned that after the complaint by his wife, he alongwith Mangilal went to the fish and Mangilal started ploughing the field and he (Ganpat) protested but the accused-appellant started abusing him (witness) also and at that time, Mangilal intervened and during intervention of accused appellant inflicted lathi blow on the head of Mangilal The witness, Ganpatlal, further deposed that the accused-appellant asked Kalyan to bring lathi which was brought by Kalyan and the same was handed over to the accused-appellant and thereafter, the appellant inflicted blow. This is not corroborated and no such fact has been mentioned in the FIR. and it is a material omissions amounting to contradictions introducing establishments by setting up a distorted version, and it patently makes the prosecution version as doubtful. In his cross-examination. Ganpatlal (PW 2) has stated that at the time when the accused-appellant inflicted blow on the head of Mangilal. he was fencing his 'Bari and at that time he on hearing voice of lathi blow saw towards Mangilal who was lying on the ground. In his cross-examination. Ganpatlal (PW 2) has stated that at the time when the accused-appellant inflicted blow on the head of Mangilal. he was fencing his 'Bari and at that time he on hearing voice of lathi blow saw towards Mangilal who was lying on the ground. This part of the statement is reproduced as under : " ;g ckr lgh gS fd eSa viuh xkM+h dk VkVk ltk jgk Fkk rks eq>s ykBh dk Qykt lqukbZ fn;k Fkk vkSj eSus eqM dj ns[kk rks esjk HkkbZ ekaxh yky eq>s iM+k fn[kk FkkA " Ganpatlal (PW 2) also deposed that at the time when the accused-appellant was abusing he had gone to his 'Bari in order to collect his bullocks, from the above narration of the evidence of the prosecution witness, it appears that Ganpatlal (PW 2) was not an eye witness to the occurrence. 14. Bajranglal (PW 3) has derailed from the track of the prosecution story and stated that the deceased, Mangilal, after abuses to the accused appellant, rushed to the accused-appellant and the accused-appellant also rushed to Mangilal and in the field of Goverdhan they faced each other and at that time, the accused-appellant inflicted lathi blow on the head of Mangilal, according to Bajranglal, lathi was taken by one Kalyan. 15. As said earlier, in the FIR- it has nowhere been mentioned that the accused-appellant received lathi from Kalyan Bajranglal (PW 3) further stated that at the time the accused appellant inflicted lathi blows on the head of Mangilal Ganpatlal was standing at the boundary (March) in between the filed of Ganpatlal and Goverdhan. The witness in his statement, has not at all stated that Ganpatlal complained about the abuses which were hurled to his wife by the appellant From his statement, it does not appear as how the incident took place. Moreover, this much is precise that the witness nowhere corroborated that the occurrence took place in the manner as stated in the F.I.R. 16. Shrilal (PW 5) in his statement deposed that the lathi was got by the appellant from Kalyan but he does not know as why the incident took place in between Mangilal and the appellant; and why both, the appellant and Mangilal exchanged abuses at each other At the time when the appellant inflicted blow on the person of Mangilal. Shrilal (PW 5) in his statement deposed that the lathi was got by the appellant from Kalyan but he does not know as why the incident took place in between Mangilal and the appellant; and why both, the appellant and Mangilal exchanged abuses at each other At the time when the appellant inflicted blow on the person of Mangilal. he was having lathi in his hand and Mangilal was the first who attacked upon the appellant and inflicted the blow on the person of the accused-appellant which hit on the head of the appellant, although the appellant also inflicted lathi blow on the person of Mangilal which hit at his head and he (Mangilal) fell down. 17. In view of the aforesaid discussion of the evidence of the prosecution witnesses, it has come on record that Mangilal (deceased) also tried to assault the accused-appellant and at the relevant time, the deceased, Mangilal, was having lathi in his hand Birdhilal (PW 1) in his statement has admitted that , the lathi blow was first given on the person of the accused-appellant by deceased Mangilal. In those circumstances, learned counsel for the appellant contended that in the instant case, the right of private defence has accrued to the appellant In support of his contention, learned counsi for the accused-appellant referred the decision of the Supreme Court in Yogendra Morarji v. State of Gujarat (AIR 1980 SC 663) . The relevant observations and general principles embodied in the Penal Code, governing the exercise of the right of private defence are as under:- "The Code excepts from the operation of its penal clauses large classes of acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed I by several principles and limitations. The most salient of them concerned the defence of body are as under : Firstly, there is no right of private defence against an act which is' not in itself an offence under the Code; Secondly, the right commence) as soon as - and not before a reasonable apprehension of danger of the body, arises from an attempt or threat to commit some offence although the offence may not have been committed and it is coterminous which the duration of such apprehension (section 102). That is to say, right avails only against a danger imminent. That is to say, right avails only against a danger imminent. present and real; Thirdly, it is a defence his and not a punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm then it is necessary to inflict foil the purpose of the defence (Sec 99). In other words, the injury which is inflicted by the person exercising the rights would be Commensurate with I the injury with which he is threatened. At the same time, it is difficult to except from a person exercising this right in good faith, to weigh "with f golden scales" what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bonafide " defender "if he with the instinct of self-preservation strong upon him pursues his defence a little further than may be strictly necessary in the in circumstances to avert the attack." It would be wholly un-realistic expect of a person under assault to modulate his defence step by step according to the attack. Fourthly, the right extends to the killing of the actuator potential assailant when there is a reasonable ana imminent apprehension of the atrocious crimes enumerated in the six clause. of Section 100 The combined effect of the first two clauses is that taking the life of the assailant would be justified on the plea of private defence if the assault causes reasonable apprehension of death or previous hurt to the person exercising the right In other words, a person who is in imminent and reasonable danger of losing his life or limb may, in the exercise of right of self defence, inflict any harm, even extending to death, on his assailant wither when the assault is attempted or directly threat end. This principle is also subject to the preceding rule that the harm or death inflicted to avert the danger is not substantial disproportionate to and incommensurate with the quality and character of the perilous act or threat intended to be repelled Fifthly, there must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailant, Sixthly the right being, in essence, a defensive right, does not accrue and avail where there is "time to have recourse to the protection of the public authorities" (Sec. 99). " (Para 13). 18. As said earlier, Mangilal (deceased) had first attacked upon the appellant and in defence, the appellant also inflicted a blow on his person. The appellant he is been convicted under Section 3, 4 Part II, IPC and it has been found by the learned trial Court that the accused appellant never intended to commit murder and he inflicted only one blow. In view of the aforesaid circumstances, I am of the opinion that the accused-appellant was justified in defending himself and in inflicting blow on the person of Mangilal who had first attacked the accused-appellant, but, unfortunately, the blow on the person of Mangilal proved fatal. In view of the aforesaid principles, laid down in Yogendra Morarji v. State of Gujarat (supra), I am of the opinion that it cannot be said that the accused-appellant has exceeded his right of private defence. Looking to the entire facts, and circumstances of the case. I am of the opinion that facts have not been brought by the informant before the Court and there is a contradictory at version given out by the informant (PW 2) inasmuch as his statement has not at all been corroborated by PW 3 and PW 4 who have given out different version by saying that it was Mangilal (deceased) who tried to assault appellant first-moreover. in the F.I.R. it has nowhere been mentioned that the lab by which the blow was inflicted on the person of the deceased was got by the appellant from Kalyan who has not been made an accused; and further nothing substantial material is available on record to show as to why Kalyan was not made an accused in the case because, if the statement of PW 3 and PW 4 are accepted to be true then definitely, Kalyan can be held to be a better. No explanation from the investigating officer in this regard is forthcoming; and because of this reason, it can be said that the evidence of PW 3 and PW 4 to the effect that the lathi was received by the appellant from Kalyan, is absolutely false, and they both, have concocted the version by emblishment; and the prosecution case is full of doubt, the benefit of which certainly goes to the appellant. In these circumstances, the appellant deserves to be acquitted. 19. In the result, this appeal is allowed; the impugned judgment dated 31st August 1978, passed by the Additional Sessions Judge, Baran, in sessions case No. 45/1975, in addition to the conviction and sentence passed against the appellant, Birdhilal are said aside; and the appellant. Birdhilal, is acquitted of the charges levelled against him. The appellant is on bail. He need not surrender. His bail bonds stand cancelled.Appeal allowed. *******