Judgment GOPAL LAL GUPTA, J. ( 1 ) THIS appeal has been directed against the Judgment and order passed by learned Sessions Judge, Jalore on 30. 9. 1994 whereby he convicted accused Chhoga under Sections 147 and 304 Part II IPC and sentenced him to undergo 6 months rigorous imprisonment and pay a fine of Rs. 100/- for the offence under Section 147 IPC and 6 years rigorous imprisonment and pay a fine of Rs. 200/- for the offence under Section 304 Part II IPC and accused Sawla, Rugha, Chhagna and Chaina under Sections 147 and 323 IPC and sentenced them to undergo 6 months rigorous imprisonment under Section 147 IPC and 4 months rigorous imprisonment under Section 323 IPC. ( 2 ) ON 6. 12199 Lone Harji had lodged the FIR at about 8. 15 p. m. stating therein that his brother Teja has agriculture land in village Birawa and that on that day at about 4 30 p. m. accused Chhoga, Chena, Rugha. Moab, son of Moala and three persons went there having lathies in their hands and they attacked Teja. When Teja shouted for help, Heera (his son) and Ganga (his wife) reached there and on their intervention the accused party left him. On this report, a case under Sections 147,447 and 3231pc was registered. During investigation, Teja died and hence Sec. 302 IPC was added. The police after completion of investigation, submitted a challan against Chhoga and 4 others. The learned trial Judge framed charges under Sections 147, 302, 323 and 447 IPC against accused Chhoga and charges under Sections 147, 302/149 and 447 IPC against remaining 4 accused. They pleaded not guilty and claimed to be tried. The prosecution examined PW-1 Bharmal, PW-2 Uda Ram, PW-3 Heera Ram, PW-4 Bhagwana Ram, PW-5 Ganga, PW-6 Kusum, PW7 Pitambardas, PW8 Hema Ram, PW-9 Gopi Kishan, PW-10 Dr. S. D. Bora, PW-11 Dilip Jam and PW-12 Narain Singh and produced 31 documents. The accused in their statements recorded under Section 313 Cr. P. C. denied having committed any offence. However, accused Chhoga stated that land on which the occurrence took place was in their possession and that he and other persons were ploughing the field and at that time Teja, Heera and Ganga went there and told them that they could not plough that land. P. C. denied having committed any offence. However, accused Chhoga stated that land on which the occurrence took place was in their possession and that he and other persons were ploughing the field and at that time Teja, Heera and Ganga went there and told them that they could not plough that land. He has said that Teja and Ganga were having Kudalist, Heera was having Kulhadi in their hands and Teja inflicted Kudali blow from blunt side on his father Chaina and hence he had to use his lathi. He further stated that he also gave blows to Ganga and Heera. Accused examined DW-1 Gatta Ram, DW-2 Moola, DW-3 Binja and DW-4 Prahlad in his defence. The learned trial Judge after hearing the parties acquitted accused, Sawla, Chhagna, Chena and Rugha under Sections 302/149 and 447 IPC but convicted them under Sections 147 and 323 IPC. Accused Chhoga was also acquitted of the offence under Section 447 IPC. However, he was convicted under Sections 147 and 304 Part II IPC. It may be stated here that State had taken the appeal against the acquittal of other accused under Section 302/149 IPC, but the same was dismissed by this court on 13. 3. 1995 at the admission stage. ( 3 ) I have heard the learned counsel for the appellants and learned Public Prosecutor appearing for the State-respondent. ( 4 ) MR. Mehta, appearing for the appellants inviting my attention to the finding of trial court that the land where the occurrence took place was in possession of the accused-party and that it was the complainant party who had gone there to tell that the field should not be ploughed by Chena (father of accused Chhoga) and others submitted that when Teja, Ganga and Heera went in the field of accused party having lathies in their hands and Teja caused lathi blow on the head of Chena, it was in the exercise of right of private defence that appellant Chhoga had caused one plow on the head of Teja. According to Mr. Mehta, Chhoga had not exceeded the right of private defence as he had not repeated the blows and, as such, the learned trial court has committed error in convicting the accused. According to Mr. Mehta, Chhoga had not exceeded the right of private defence as he had not repeated the blows and, as such, the learned trial court has committed error in convicting the accused. He has further submitted that when the accused-appellant was in the possession of land and Teja and others went there to obstruct them from ploughing their field, it could not be found that accused were the members of the unlawful assembly and they had gathered there to use criminal force. According to him, the presence of the accused at the place of occurrence was natural and, therefore, the learned trial court had committed error in convicting the appellants under section 147 IPC. Mr. Mehta had further submitted that the prosecution has not explained the injuries sustained by Chaina (accused) and, therefore, appellants are entitled to be acquitted. Mr. Mehta has placed reliance on the following cases: Gottipulla Venkata Siva Subbrayanam and Ors. v. State of Andhra Pradesh and Ors. , Dec Narain v. State of U. P. , Lakshmi Singh and Ors. v. State of Bihar, Hira Rai v. State of Bihar, Bhagwan Swaroop v. State of M. P. . ( 5 ) AS against this the learned Public Prosecutor has submitted that even assuming that Teja, Ganga and Heera were having weapons in their hands when they went to request the accused party not to plough the field on which there was dispute of owner-ship, the accused had no right to cause fatal blow to Teja and this case does not come within the four comers of Section 100 IPC. He has however conceded that since the accused were in possession of the land, it could not be found that they were the members of unlawful assembly. Relying on the case of Naresh Kumar v. State of Raj. 1988 Cr. LR (Raj) 457, learned Public Prosecutor has submitted that it was not necessary for the prosecution to have explained the injuries of Chena which were superficial and of minor nature. ( 6 ) I have given the matter my anxious consideration. Learned counsel for the appellant has not assailed this finding of the trial court that accused Chhoga had caused one injury on the head of Teja and Teja had died because of that injury. ( 6 ) I have given the matter my anxious consideration. Learned counsel for the appellant has not assailed this finding of the trial court that accused Chhoga had caused one injury on the head of Teja and Teja had died because of that injury. The questions for determination in this case are as to whether accused Chhoga had caused injuries to Teja (deceased) in exercise of right of private defence and other four accused had caused injuries to Ganga and Heera. ( 7 ) BEFORE we proceed to examine the evidence in the case, it will be profitable if we study the law on private defence as laid down in the aforesaid authorities. In the case of Gottipula (supra), it has been held by the Apex Court as follows: The right of private defence of person and property is recognised in all free, civilised, democratic societies within certain reasonable limits and that of private defence serves a social purpose. In the case of Dea Narain (supra), it has been held by the Apex Court as follows: There can be little doubt that on the conclusions of the two courts below that the party of the complainant had deliberately come to forcibly prevent of obstruct the possession of the accused persons and that this forcible obstruction and prevention was unlawful the appellant could reasonably apprehend imminent and present danger to his body and to his companions. In that case, a lathi blow was caused on the head of accused. The Honble Apex Court observed that it can not be laid down as a general rule that use of lath; as distinguished from the use of a spear must always be held to result only in milder injury and that much depends on the nature of the lathi the part of the body aimed at and the force used in giving the blow. In the case of Lakshmi Singh (supra), it has been held by their Lordships as follows: In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each, any of the three results may follow: In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (i) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (iii) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. It has further been observed at para 11 as follows: The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. The facts of Him Rai (supra) were such that some armed persons went to harvest certain crop forcibly and during the assault which they made on the owner of the crop the accused who was on the side of the owner gave a fatal blow with a Bhala to one of the members of the intruding party. It was found that accused reasonably apprehended grievous hurt to or death of the owner, and hence he could not be said to have exceeded his right of private defence. It was found that accused reasonably apprehended grievous hurt to or death of the owner, and hence he could not be said to have exceeded his right of private defence. The facts of the case of Bhagwan Swaroop (supra) were that the accused apprehending danger to the life of his father used the licenced gun of his father causing fatal blow to one Mansingh, The Hontble Apex Court while dealing with the right of private defence observed that the father of the accused was given lath; blow and at that time the accused fired gun shot to save his father from further blows and it could not be said that accused was not justified in firing from his fatherts gun. The Apex Court has observed that the lathi is capable of causing simple as well as fatal injury and it was immaterial that injury actually caused were simple or grievous and since accused had seen his father being given lathi blow, he could reasonably apprehend danger to the life of his father. ( 8 ) A reading of the above authorities goes to show that the right of private defence as contained in Sections 96 to 106 of IPC is perfect and the accused may be justified even causing injury by fire arm or deadly weapon to the persons causing blow to himself or to any other persons, if there arises a reasonable apprehension that more injuries could be caused and the right of private defence extents even to causing deaths if assault may reasonably cause the apprehension that grievous hurt could be the consequence of such assault. ( 9 ) IN the case of Naresh Kumar relied on by the learned Public Prosecutor, it has been held by the Division Bench of this Court as follows: It may be pointed out that before a person is justified in putting forward plea of self-defence, following conditions should exist: (i) The behaviour of the accused should be such that he is not accused of being aggressor in the encounter. (ii) There must be ample evidence to prove that his life was in danger and it became absolutely essential for him to have caused injuries in self defence to save any harm to his body and life. (ii) There must be ample evidence to prove that his life was in danger and it became absolutely essential for him to have caused injuries in self defence to save any harm to his body and life. (iii) It must be shown that there Alas no way for the appellant to go away from the spot in order to save himself but the only way out for him was to cause injuries to the other side in order to save his own life and body, ( 10 ) THE learned trial Judge has clearly held that the agricultural land where the occurrence took place was in possession of the accused party and that the accused party was ploughing the field at the time Teja his wife Ganga and son Heera went there. The learned Trial Judge has further held that the prosecution version as regards the catching hold of Teja by accused Sawla and causing injury by Chhagan by axe was not believable. It is thus a case where apparently complainant party was the aggressor. It is the complainant party who had gone there to prevent the accused from ploughing their field. ( 11 ) NOW the question that arises for consideration is whether Teja, Heera and Ganga were having weapons in their hands when they went to the field of occurrence and Teja caused injury on the head of accused Chena. DW-2 Moola has deposed that Teja was having Kudalit in his hand and he had caused blow by its blunt side on the head of accused Chena. His statement cannot be disbelieved on the sale ground that his name was mentioned in the FIR in the list of assailants. On investigation, it was found that he had not taken part in the occurrence. In any case, his presence at the place of occurrence cannot be doubted. It is significant to point out that the defence version that Teja was having Kudali in his hand and he had inflicted blow on Chena, has not come for the first time in the statements of accused under Section 313 Cr. P. C. A question in this regard was asked to PW-3 Heera in his cross-examination. Such a question was also asked to Mst. Ganga (PW5 ). She has denied to have noticed any injury suffered by accused Chena. However, it is pertinent to note that Ganga in her police statement Ex. P. C. A question in this regard was asked to PW-3 Heera in his cross-examination. Such a question was also asked to Mst. Ganga (PW5 ). She has denied to have noticed any injury suffered by accused Chena. However, it is pertinent to note that Ganga in her police statement Ex. D-2 had stated that Chena had also received injury in the occurrence. It was also asked to Ganga that deceased Teja had given Kudali blow to accused Chena and she had also taken part in the occurrence of beating. It is thus manifest that this has been the defence of the accused from very beginning that deceased Teja was having Kudali in his hand and he had caused blow to accused Chena and that Ganga and Heera had also gone to the place of occurrence and they had given beatings. According to Dr. S. D. Bora, PW-10 he had seen the injuries of Chena on 6. 12. 1991, when it had come in the statement of Ganga during investigation that Chena had also suffered injuries in the occurrence, it was the duty of the prosecution to have explained as to how he had sustained injuries. The prosecution has not come with the case that after Teja was given injury on his head, blow was caused to accused Chena and, therefore, we have no alternative but to accept the defence version that it was Chena who had first sustained injuries and thereafter the injuries were caused to deceased Teja. ( 12 ) IT is true that two injuries sustained by Chena were of sin iple nature and the injuries were not deep but it cannot be forgotten that one injury was caused by the blunt side of the weapon like Kudali and that too on the head which is vital part of the body. It has already been found that the accused party was not the aggressor and also that deceased Teja had used Kudali to cause injury on the head of Chena who is father of accused Chhoga. Since the place of occurrence was in the possession of the accused, it cannot be found that accused were aggressor. This is a case where accused Chhoga was bound to apprehend that his father Chena might be given more blows. Since the place of occurrence was in the possession of the accused, it cannot be found that accused were aggressor. This is a case where accused Chhoga was bound to apprehend that his father Chena might be given more blows. In these circumstances, if in order to save Chena from further beatings, he caused one injury and that too by Khutaliya; (made of wood) which was already in his hand for levelling the land to plough the field, it cannot be find that he had no right of private defence. Rather the facts are such that Chhoga had reasonable apprehension that the life of his father was in danger and therefore it became absolutely essential for him to cause injury on Teja to save further harm to the body and life of Chena. Since accused were in lawful possession of the land, it cannot be expected from the accused that they would run away seeing Teja, Ganga and Heera. He was perfectly justified in causing one blow to Teja. It is significant to point out that accused Chhoga did not repeat the blows on Teja. Following the propositions of law laid down the above cases of the Honble Supreme Court, it has to be held that Chhoga could not be convicted for having caused injury to Teja as he had done apprehending further assault on Chena by Kudali, which weapon Teja had used to cause injury on the head of Chena. ( 13 ) AS already stated, Public Prosecutor has conceded and, I think rightly, that under the circunistances that accused party was in possession of agricultural land, appellants could not be convicted for having formed unlawful assembly. ( 14 ) NOW we proceed to examine the evidence led against Sawla, Chagna, Rugha and Chena for offence under Section 323 IPC. The prosecution case is that they had caused injuries to Ganga and Heera. PW-3 Heera has deposed that Chena had given lathi blow on the forehead of Ganga, Rugha on her right thigh and Sawla on her back. He has further said that accused Chagna had given a lathi blow on his right hand. PW-5 Ganga has deposed that when she went to Save her husband Teja, Chena gave a lathi blow on her hand, Rugha on her right thigh and Sawla on her back. Dr. Bora (PW-10) had examined the injuries of Ganga and Heera on 9. 12. PW-5 Ganga has deposed that when she went to Save her husband Teja, Chena gave a lathi blow on her hand, Rugha on her right thigh and Sawla on her back. Dr. Bora (PW-10) had examined the injuries of Ganga and Heera on 9. 12. 1991. According to him, he found 4 simple injuries caused by blunt weapon on the person of Ganga and one abrasion on the hand of Heera and that those injuries were more than 48 hours old. A reading of the FIR Ex. P-19 shows that it was not mentioned therein that in the occurrence Ganga and Heera had also suffered injuries. This FIR was lodged by Harji Ram PW-13 who had deposed that Teja had related the incident to him and when he took Teja to hospital: Heera and Ganga were also with him. Heera has also deposed that his mother told about the incident to Harji Ram. Ganga has deposed that her son had told about the occurrence to Harji. The fact that it was not mentioned in the FIR that in the occurrence Ganga and Heera had also suffered injuries goes to show that these persons did not sustain injury in that occurrence. It is also significant to point out that injuries of Heera and Ganga were not medically examined on 6. 12. 1001 though they were in the hospital. Their injuries were seen by the doctor on 9. 12. 1991 i. e. on the 4th day of the occurrence. It is, therefore, doubtful that Heera and Ganga suffered injuries at the time Teja sustained injury. That being so, the prosecution evidence that injuries to Heera and Ganga were: caused by Sawla, Chagna, Chena and Rugha cannot be believed. It has come in the statement of DW-2 Moola who admittedly was present at the time of occurrence that Ganga had also lifted her Kudali to cause injury to Chhoga. It may be that. Chhoga has not stated this fact in his statement under Section 313 Cr. P. C. but that is not material as he might not have seen the lifting of Kudali, by Ganga on him. It may be that. Chhoga has not stated this fact in his statement under Section 313 Cr. P. C. but that is not material as he might not have seen the lifting of Kudali, by Ganga on him. Be that as it may, even it is accepted that some simple injuries were caused to Ganga and Heera also by the accused persons, it cannot be said that they have committed any offence as they had a right to come to the rescue of Chhoga and Chena. It is also relevant to state that the members of the complainant party had committed criminal trespass having weapons in their hands and therefore the accused had a right of private defence to property also. ( 15 ) AS a result of above discussion of the evidence and legal position, there is no hesitation in holding that learned trial court has erred in convicting the appellants in this case. The appellants are entitled to acquittal. Consequently, this appeal is accepted and appellants Sawla, Chagna, Rugha, Chena and Chhoga are acquitted. Appellant Chhoga is in custody. He will be released forthwith, if not required in any other case. Other appellants are on bail. They shall not surrender to the bail bonds which stand cancelled. Appeal accepted.