JUDGMENT 1. - The parties to this case are the descendant of a common ancestor. Though they are Kumhars by caste yet agriculturists by profession. As stated by PW 2 Smt. Sukhi, widow of late Sri. Ram Narain and informant in the case, the ancestral joint holding stood partitioned, one lot to her, then one lot to Bhairoo appellant and two lots to Giarsa. Bhairu's field adjoins to the field of Smt. Sukhi on one side and to the field of Giarsa on the other. Prabhoo appellant is the son of Bhairoo appellant. Bajrang (since deceased) the injured in this case was the son of Smt. Sukhi PW 3 Hem Raj S/o late Bajrang is her grand son aged 14 years PW 4 Chauthmal, PW 5 Bhanwar lal and PW 6 Durga Lal, who were examined as independent eye-witness but turned hostile to prosecution case, have their fields in the same place. 2. It is in the above factual matrix that the unfortunate incident is alleged to have taken place on July 26,1981 at 5.00 PM. at the field of Giarsa. It is alleged that at that time the prosecution witnesses and the appellants were working at their respective fields. Prabhu appellant was cutting grass in his field and PW 2 Smt. Sukhi, PW 3, Hem Raj, Bajrang deceased and his wife were doing Darda' in their field when Bhairoo appellant was taking his buffallow through the dol' between the fields of the appellants and Bajrang deceased she entered into the field of Bajrang deceased. Bajrang deceased lost temper and proceeded towards Bhairoo appellant. Bhairoo raised an alarm which brought Prabhoo appellant to the place of occurrence Prabhoo assaulted Bajrang diseased on forehead and on his falling on the ground gave a further blow with the axe in his hand on the neck of Bajrang deceased. Bhairoo appellant is stated to have given a lathi blow to Smt. Sukhi PW 4 Chauthmal, PW 5 Bhanwar Lal and PW Durga Lal ran from their respective fields and pacified the assailants, who then retired. 3. Smt. Sukhi reported the incident to the police at police station Keshorao Patan at 10.30 RM. on 26.7.81 where PW 8 Jagannath A.S.I. registered crime No.71 of 1981 under section 307 IPC, vide FIR Ex.P 4 and commenced investigation. The two injured persons were sent to the Govt. Dispensary at Keshorao Patan for medical examination. 4. 3. Smt. Sukhi reported the incident to the police at police station Keshorao Patan at 10.30 RM. on 26.7.81 where PW 8 Jagannath A.S.I. registered crime No.71 of 1981 under section 307 IPC, vide FIR Ex.P 4 and commenced investigation. The two injured persons were sent to the Govt. Dispensary at Keshorao Patan for medical examination. 4. On examining the bodies of Bajrang deceased at 11.00 P.M. and of Smt. Sukhi at 11.40 RM. on that very night PW 7 Dr. Nagesh Joshi, Medical Officer at the Govt. Dispensary, Keshorao Patan at the relevant time, noticed the following injuries on their respective persons.I. Bajrang (deceased) 1. Incised wound 51/2" x 1"x brain deep placed longitudinally, directed downwards and causing sub conjectival haemorrhage in right eye, on right fronts parallel region. The wound had clean cut edges and was bleeding, brain tissue was peeping through the wound and the cloth tied over the wound had also been soaked with blood and brain matter. 2. Incised wound 31/2"x 1 "x 11/2" on route of neck in back, cutting neck muscles, placed transversally directed forward. The injury was profusely bleeding. 5. In the opinion of Dr. Joshi both the injuries to Bajrang injured had been caused with some sharp-edged weapon within the last six hours and being dangerous to his life were grievous in nature. After noting his B.P. at 100/70 mm hg and his pulse at 78 p.m. Dr. Joshi forwarded the patient to M.B.S. Hospital at Kota for treatment and X-Ray examination. At that Hospital PW 1 Abdul Salam, Radiographer prepared the X-Ray plates Ex.P 1 & Ex.P 2 but what those plates showed was not brought on the record of the case. 6. In the course of the trial of the appellant the public prosecutor has informed the court on 18.1.82 that Bajrang injured had died and that a supplementary charge sheet was to be submitted by the police for amendment of the charge against the appellants. But despite several adjournments neither any further papers were submitted in the trial court nor any proper for amendment of the charge framed against the two appellants was made. Therefore, on 28.4.83 the learned Sessions Judge directed the trial of the appellants to proceed from the report of the S.H.O. Police Station Kotwali Bundi City dated 10.6.83 it is, however, confirmed on record that Bajrang had died. Therefore, on 28.4.83 the learned Sessions Judge directed the trial of the appellants to proceed from the report of the S.H.O. Police Station Kotwali Bundi City dated 10.6.83 it is, however, confirmed on record that Bajrang had died. But there is no evidence to show whether he died as a result of the injuries sustained by him in the incident in question or not and as to when he had died. 7. II Smt. Sukhi 1. Contusion 21/2"x 1" over left shoulder. 8. Dr. Joshi opined that the above injury was caused with some blunt weapon to the injured within the last 6 hours and was simple in nature. 9. The learned Sessions Judge tried Prabhoo appellant on charge under sections 307 and 326 IPC and Bhairoo appellant on charge under section 323 IPC. By his impugned judgment and order dated Nov. 22, 1983 the learned trial Judge found Prabhoo appellant guilty of offence under section 326 IPC only, convicted him as such and sentenced him to 18 months R.l. plus Rs. 500/- as fine. He held Bhairoo appellant guilty of offence under section 323 IPC, connected him therefore and sentenced him to the period of imprisonment undergone by him as under trial (15 days) plus Rs. 500/- as fine. 10. I heard the learned counsel for the parties at sufficient length and thoroughly examined the record of the lower court. 11. On being examined under section 313 Cr.RC. both the appellants had admitted the factum of incident. Their version however, was that while Bhairoo appellant was carrying the buffalo on the first Dol Bajrang deceased had felt enraged and ran after Bhairoo to assault him and did assault him. On raising alarm by Bhairoo his son Prabhoo appellant ran from his field to protect and save Bhairoo but he too was assaulted by Bajrang deceased. In support of such a version the appellants had examined two witnesses in their defence, namely DW 1 Dr. Nagesh Joshi and DW 2 Jagdish Prasad, who had written Prabhoo report at S.No. 852 in the General Diary (Ex.DS) at Police Station Keshorao Patan at 11. RM. on 26.7.81. 12. DW 1 Dr. In support of such a version the appellants had examined two witnesses in their defence, namely DW 1 Dr. Nagesh Joshi and DW 2 Jagdish Prasad, who had written Prabhoo report at S.No. 852 in the General Diary (Ex.DS) at Police Station Keshorao Patan at 11. RM. on 26.7.81. 12. DW 1 Dr. Jogeshi, who had though been examined as PW 7 by the prosecution earlier yet the injuries to the appellants were not got proved by him at that time, had stated that on examining the bodies of Prabhu Lal (30) and Bhairoo Lal (60) appellant on 26.7.81 (at 11.45 P.M. and 12.20 A.M. in the same night) he had observed the following injuries on their respective persons :I. Prabhu Lal 1. Lacerated wound 11/2"x 1/2"x skin deep over occipital parallel region in its middle, 2. Contusion 2"x1" over left firearm, posture laterally, in its middle. II. Bheru Lal 1. Lacerated wound bleeding plus 2'x 1/2' x skin deep (teach mark were evident and the injured told the same to be dog bite) placed longitudinally in middle of left lea laterally, 2. Contusion 11/2"x1" over left shoulder. 13. Dr. Joshi opined that the above injuries were caused to the injured persons within last six hours. He further opined that though injury No. 2 of Bhairoo could possibly be caused by his fall on the ground but injury No. 1 of Prabhoo could not have been caused with such a fall. That injury was possibly caused by falling of a blunt object in the middle of his head. 14. By the prompt reports lodged by both the parties at the Police Station and the Medical examination conducted by Dr. Joshi soon thereafter read in the light of the versions given by the two sides it is established that on the fateful day, time and place an incident of marpit had certainly taken place at the fields of the parties and in the course of such incident injuries to one or more members on each side had been caused. The question that falls for consideration, therefore is as to which of the parties was at fault and which of them was the aggressor against the other? The question that falls for consideration, therefore is as to which of the parties was at fault and which of them was the aggressor against the other? It is also to be considered that if the prosecution is found at fault and aggressor against the appellants, whether the appellants had a right of defence of their bodies and if so had Prabhoo appellant exceeded such of his right of private defence of his own person and/or of the person of his father. Bhairoo appellant? 15. Proceeding with the case of the prosecution I find that at the trial the prosecution had examined eight witness in all, as named and referred to above. Bajrang, the main injured in the case could not be examined due to his dying during the course of the trial of the appellant of the eight witnesses examined PW 2 Smt. Sukhi is the injured herself and PW 3 Hem Raj is her grandson and son of Bajrang deceased. Both these witnesses have admitted in their cross-examinations in clear and unambiguous words that Bajrang deceased had ran after Bhairoo appellant with a lathi in his head and Bhairoo apprehending an assault on him by Bajrang deceased had raised an alarm where upon Prabhoo appellant had run coming from his field to save Bhairoo but he was also assaulted by Bajrang deceased. The witnesses further stated that the incident had taken place in the field of Giarsa. It is also there in their statements that Bajrang's dog had also barked at Bhairoo appellant. They have further admitted that the other witnesses had also reached the place of occurrence. With such type of evidence of these two star witnesses of the prosecution, PW 4 Chauthmal, PW 5 Bhanwar Lal and PW 6 Durga Lal, the three eye-witnesses whose presence on their respective fields nearby is not doubted and their independence and impartially can also not be doubted for any reasons whatsoever have stated that the incident had taken place in the manner alleged by the defence. The barking of Bajrangs' dog at Bhairoo and Bajrangs running after Bhairoo and assaulting him with a lathi, Prabhoo's came running from his field and then being assaulted by Bajrang deceased and Prabhoo appellant also assaulting Bajrang with the weapon in his hand, clearly comes out from the statements of these witnesses. The barking of Bajrangs' dog at Bhairoo and Bajrangs running after Bhairoo and assaulting him with a lathi, Prabhoo's came running from his field and then being assaulted by Bajrang deceased and Prabhoo appellant also assaulting Bajrang with the weapon in his hand, clearly comes out from the statements of these witnesses. Therefore, though these three independent and impartial witnesses have been declared hostile by the prosecution yet they were in fact not hostile as they had in substance stated all those facts in their examination in chiefs what the two star witnesses Smt. Sukhi and Hem Raj had stated in their cross-examinations but they were not so declared hostile by the prosecution. There is neither any rule of law nor of evidence that the testimony of a hostile witness should be discarded altogether from consideration. If a witness has not at all supported the prosecution case on any point in issue on that case then his testimony may not be of any use either to the prosecution or the defence and may be excluded from consideration of the merits in the prosecution case. But if he has supported the prosecution or the defence on certain facts in issue and his evidence on such material facts in the case, either it supports the prosecution case or the defence version, fits in the facts and circumstances attending on the commission of the alleged offence in that case, his testimony is required to be considered and appreciated in right perspective in order to arrive at just conclusion in that case. The acceptable part of the testimony of a hostile witness, obtained in the manner stated above, should be received in evidence and considered at par with other evidence on record of the case. The evidence of the three eye- witnesses, as named above, stands supported by the other two star witnesses of the prosecution and also fits in the facts and circumstances attending on the commission of the offences in this case that apart the evidence of all the five witnesses of the prosecution finds full support from the unquestioned testimony of Dr. Joshi who had found injuries to the members of both sides. The presence of a dog with Bajrang and its barking at Bhairoo appellants probalies defence version that Bajrang had instigated has bitch to bite Bhairoo and the cannel did in fact bite Bhairoo on leg. Joshi who had found injuries to the members of both sides. The presence of a dog with Bajrang and its barking at Bhairoo appellants probalies defence version that Bajrang had instigated has bitch to bite Bhairoo and the cannel did in fact bite Bhairoo on leg. Such a version gets ample support from the injury No. 1 found on the person of Bhairoo appellant by PW 7/DW 1 Dr. Joshi. Thus the defence version is not only probable but is also fully proved by prosecutions own evidence on record. This state of evidence on record fully established beyond doubt that Bajrang deceased and not the present appellant was at fault and an aggressor against the appellants. He had not only made an issue of a petty matter of Bhairoos' buffallow having entered his field but had also, without any reasonable provocation from Bhairoo appellants left his dog at him and followed him with a lathi in his hand upto the field of Giarsa, after having crossed appellants field and did assault Bhairoo appellant. The running Bhairoo was unarmed and did not attach Bajrang deceased. Then when Prabhoo appellant had rushed to save his father, he too was assaulted by Bajrang deceased wit a lathi on his head. It is thus fully established that Bajrang deceased has opened an armed assaults on Prabhoo appellant also and had caused to him before Prabhoo could have caused him any injury in his self defence. 16. Now the pertinent question for consideration is whether Prabhoo accused had exceeded his right of private defence. The above discussion of the evidence on record clearly establishes that on seeing his old father being attacked upon by a terocious animal and its master Prabhu had a right to defend the person of his father. Prabhu was working in his field at that time and, to be more correct was cutting gross, most probably with a sickle, used to cut gross. He could have naturally run to save his attacked father with that sickle in his hands. Before opening any assault on the aggressor of his father in the defence of the person of the old man, Prabhoo himself was attacked upon with a lathi by Bajrang deceased. Prabhoo therefore had a right of defence of his own person as well. He could have naturally run to save his attacked father with that sickle in his hands. Before opening any assault on the aggressor of his father in the defence of the person of the old man, Prabhoo himself was attacked upon with a lathi by Bajrang deceased. Prabhoo therefore had a right of defence of his own person as well. In his defence he is proved to have given two blows, with the weapon in his hand, to Bajrang deceased. Here it may be appreciated that they appellants were then facing two types of attacks, one from a ferocious animal and the other from the master of the animal who was armed with a deadly weapon like lathi and was using the same against unarmed Bhairoo and depending Prabhoo. In those moments of high passions Prabhoo can not be expected to have measured the use of force which he was legally entitled to use against his aggressors. Indian laws do not expect the citizen to behave like a coward. Nor can the use of force by the persons attacked with a biting animal and the attacking master, armed with a deadly weapon, be measured in golden scales in those moments of heated passions. Prabhoo appellant in my opinion, did not exceed his right of private defence of his own person and the person of his aged father. 17. The sole injury to Smt. Sukhi was not caused by either of the two appellants. The evidence shows that Smt. Sukhi had no occasion to have been near-about the running Bhairoo or defending Prabhoo. Her injury does not fit in the facts and circumstances of the case. 18. To sum it is held that neither of the two appellants is found guilty of the offences they have been convicted of and sentenced for. Both are entitled to an acquittal in this case. 19. In the result the impugned judgment and order is set aside and Prabhoo appellant acquitted of offence under section 326 IPC and Bhairoo appellant of Section 323 IPC fines if released from them shall be returned to them. They are on hail, they need not surrender as their bail bonds are cancelled.> Appeal allowed. *******