Jotram and Harlal v. State of Rajasthan — 1998 DIGILAW 99 (RAJ)

Honble GUPTA, J. – This appeal is directed against the judgment of learned Additional Sessions Judge No. 1, Hanumangarh dt. 18.10.77 whereby he convicted appellant Harlal under Section 302 and 307/34 IPC and 27 of the Indian Arms Act and Jot Ram (since dead) under Section 307 and 302/34 Ipc and under Section 25 & 27 of the Indian Arms Act. Harlal was sentenced as follows :– (a) 302 IPC Life Imprisonment & a fine of Rs. 2000/- (b) 307/34 IPC 7 Years RI and fine of Rs. 1000/- The substantive sentences were ordered to run concurrently. He was not separately sentenced for the offence under the Indian Arms Act. (2). The prosecution case can be summed up as follows : There is an agricul- tural land of Dashrath, first informant in village Rajpuriya. To the western side of this land there is `Murabba No. 40 divided in 25 `killas. Accused cultivated some `killas of this `Murabba. Land of `Killas no. 14, 17, 16 and 25 was the bone of contention. In the F.I.R. Ex. P-3 lodged on 17.6.75 at 9.10 a.m. at Police Station Nohar, it was stated that Dashrath had purchased four `Killas i.e. 14, 16, 17 and 25 of `Murabba No. 40 from one Sannu Ram but Bheriya, Jotram & Harlal sons of Basti Jat were litigating for this land. On 17.6.75 Dashrath alongwith his younger brothers Gangaram and Bhagirath, brother-in-law Umrao Singh, and nephew-in-law Dalip Singh went to his field to plough the land. At about 8 a.m. Gangaram and Dalip Singh proceeded to the village through the disputed 4 `Killas land to fetch water. Jotram and Harlal accused, having guns in their hands, came out of the hut, hurled abuses and fired shots hitting Dalip Singh and Gangaram and then they ran away. It was further stated in the F.I.R. that Dalip Singh and Gangaram were taken in a Jeep for treatment but Dalip Singh succumbed to the injuries suffered by him in his chest while on way and Gangaram was hospitalised. On this report, a case under Sec. 302 & 307 IPC was registered. The police held the inquest, inspected the site and interrogated the witnesses. Accused were arrested and on their informations guns were recovered. The autopsy on the person of Dalip Singh was held by Dr. J.P. Swami (P.W. 7). He also examined the injuries of Gangaram. On this report, a case under Sec. 302 & 307 IPC was registered. The police held the inquest, inspected the site and interrogated the witnesses. Accused were arrested and on their informations guns were recovered. The autopsy on the person of Dalip Singh was held by Dr. J.P. Swami (P.W. 7). He also examined the injuries of Gangaram. After the completion of the investigation a challan was filed. (3). Accused Jotram was charged with offences under Sections 307, 302/34 IPC and 25 & 27 of the Indian Arms Act and accused Harlal was charged with offences under Sections 302 and 307/34 IPC and Section 27 of the Indian Arms Act. They pleaded not guilty. The prosecution examined 9 witnesses to prove the charges. Accused in their statements recorded under Section 313 Cr.P.C., denied accusation. They did not examine any person in defence. The case set up by accused Harlal in his statement is that he was in the possession of land `Killas No. 14, 16, 17 and 25 of `Murabba No. 40 and that Dashrath, a history-sheeter, wanted to take possession from him forcibly and even proceedings under Section 107 Cr.P.C. were launched by him. He stated that he had sown the crop of `Moth & `Bajra on the disputed land but Dashrath and his companions, having lathis and guns, went there and started uprooting his crop and when he objected to, Dashrath told him that he would not only uproot the entire crop but would also kill him and thereafter Dalip Singh went in the `Khala and opened fire at him and therefore he had to open fire to defent himself. He further stated that Dashrath had also fired a shot but he could not see as to who was hit by that shot. He stated that he immediately went to the police station and produced his gun and a bag containing bullets and requested the S.H.O. to register his report, but it was not done. The defence of accused Jotram was that he was not at the spot. He denied that he gave information leading to the recovery of gun or the bullets. (4). The learned Sessions Judge held that Dalip Singh had met homicidal death. He further held that the land in dispute was in possession of Dashrath, and both the accused had caused injuries to Dalip Singh and Gangaram by fire arms. He denied that he gave information leading to the recovery of gun or the bullets. (4). The learned Sessions Judge held that Dalip Singh had met homicidal death. He further held that the land in dispute was in possession of Dashrath, and both the accused had caused injuries to Dalip Singh and Gangaram by fire arms. The plea of right of private defence was not accepted and he convicted both the accused. (5). We have heard the arguments of learned counsel for appellant Harlal and learned Public Prosecutor appearing for the State and have perused record of the case. The appeal of Jotram does not survive because of his death. (6). Mr. Thakur vehemently contended that the trial court has not properly appreciated the evidence and has come to the erroneous conclusion that the land in dispute was in possession of Dashrath. According to him, the land was in possession of accused persons and they had raised a hut on the land and they had even sown crop on that land many days before the occurrence but the members of the complainant party armed with guns and `lathis went there and they uprooted the crop by moving tractor thereon and they also fired shots at Harlal who was all alone there in his field. He drew our attention to the fact that `lathis were found lying at the spot which indicated that the members of the complainant party were armed with `lathis. Mr. Thakur submitted that because of the trespass on the land and mischief caused to the crop, right of private defence was available to the accused and at the same time as members of the complainant party were armed with deadly weapons and even shots were fired, the accused had a reasonable apprehension of suffering at least grievous hurt and therefore he was justified in firing a shot. According to him, the approach of the learned Sessions Judge was patently erroneous when he first considered the defence version and having rejected the defence version relied on the prosecution version of the occurrence. (7). Mr. Singhvi, on the other hand, tried to support the judgment of the trial court., His submission was that the testimony of Dashrath, Gangaram and Umrao Singh should not be seen with suspicion on the ground that they are inter-related and there are some discrepancies in their statements. (8). (7). Mr. Singhvi, on the other hand, tried to support the judgment of the trial court., His submission was that the testimony of Dashrath, Gangaram and Umrao Singh should not be seen with suspicion on the ground that they are inter-related and there are some discrepancies in their statements. (8). We have carefully considered the above contentions. A reading of the impugned judgment reveals that the learned Sessions Judge has proceeded with, the assumption that it was the duty of the accused to prove his defence first. It will have to be accepted that the approach of the Judge was patently erroneous. In order to decide the questions in controversy, the trial Judge formulated the following five questions at page 7 of the judgment :– (i) Whether `killas No. 14, 16, 17 & 25 of `Murabba No. 40 were in possession of the accused and their brothers and they had sown the `Bajri and `Moth crop on the land ? (ii) If question No. (i) is decided in favour of the accused persons whether Dashrath and his companions armed with gun and lathis went to the disputed land to uproot the crop of the accused persons and they even ran the tractor over the crop ? (iii) Whether the accused persons without any rhyme or reason and because of enmity fired the shots by the guns to kill Dalip Singh and Gangaram and did cause the death of Dalip Singh and caused injuries to Gangaram leading to fractures ? (iv) Whether accused Harlal had a right of private defence to property as to fire shots by the gun and cause the death of Dalip Singh ? (v) Whether the prosecution has proved the charges beyond reasonable doubt ? (9). The formulation of very first two questions the burden of which lay on the accused goes to show that the learned Judge was labouring under the impression that the initial burden lies on the accused to prove his defence, which is against the fundamentals of criminal jurisprudence. Then the learned Sessions Judge discussed the evidence and held that the land was in possession of Dashrath on the day of occurrence, and the accused were aggressors and they had caused fire- arm injuries to Dalip Singh and Gangaram. (10). Then the learned Sessions Judge discussed the evidence and held that the land was in possession of Dashrath on the day of occurrence, and the accused were aggressors and they had caused fire- arm injuries to Dalip Singh and Gangaram. (10). Since the learned Judge of the trial court has not considered the evidence in right perspective, we shall ourselves consider the entire evidence produced in the case. (11). The crucial point to be decided is whether the disputed four `Killas of land was in possession of Dashrath, P.W. 1 on the date of the occurrence. The prosecution has relied on the sale deed Ex. P-1 and the statements of P.W. 1 Dashrath, P.W.2, Gangaram, and P.W. 3 Umrao Singh. The case for the prosecution is that Dashrath had purchased this land from Sannu Ram on 26.6.74 by registered sale deed Ex. P-1. Sannu Ram has not been examined in the case to prove that he was in possession of the land before executing the sale deed or that he had handed over the possession of the land to Dashrath. Certainly he was the best witness to say about his possession on the disputed land before the execution of the sale deed and also whether he had handed over the possession to Dashrath. It is significant to point out that even Dashrath P.W. 1 does not say that Sannu Ram had handed over the possession of the land when the sale deed Ex. P.1 was executed. He simply states that he had purchased land from Sannu Ram which the accused persons did not like as they wanted to purchase this land. Even Gangaram, P.W. 2 brother of Dashrath does not say that Sannu Ram had handed over possession of the land toDashrath. Bhagirath another brother of Dashrath has not been examined. Thus there is no evidence on record to hold that Sannu Ram had handed over the possession of the land to Dashrath. (12). It is admitted position of the parties that on the date of occurrence there was crop of `Bajra & `Moth standing on this land. The crucial question is whether Dashrath had sown that crop. The discrepancies which have appeared in the state- ments of the three witnesses lead us to infer that the prosecution case regarding sowing of crop by Dashrath is not true. The crucial question is whether Dashrath had sown that crop. The discrepancies which have appeared in the state- ments of the three witnesses lead us to infer that the prosecution case regarding sowing of crop by Dashrath is not true. Dashrath (PW 1) says that he had sown the crop just 5-6 days before the date of occurrence. As against this, the evidence of Gangaram, PW 2 is that he and Dashrath had sown the crop some 15-20 days before the date of occurrence. Umrao Singh, PW 3 has his own version to tell. According to him, the crop was sown one month prior to the date of occurrence. He even goes on to say that the height of the crop was about 1 ft. on the day of occurrence. Dashrath does not even say that the crop was visible. According to Gangaram few leaves were visible. It is thus obvious that all the three witnesses who deposes to have taken part in the sowing of the crop, give radically different statements regar- ding the period of sowing the crop prior to the date of occurrence. The learned Sessions Judge has thought, noticed the discrepancies yet he did not attach importance to them saying that the contradictions are on minor point. In our opinion, the discrepancies cannot be held to be of insignificant nature in a case in which question of possession is to be decided and the complainants had come out with the case that he had purchased the land in recent past. It is relevant to state that Dashrath does not say that he had raised crop on this land in the year 1974 i.e. immediately after he purchased the land. In such a situation, the discrepancies in the statements of the witnesses regarding the age of the crop is of great significance. It diminishes the probative value of the evidence. (13). There is one important circumstance on record which alone is sufficient to hold that the disputed land was not in possession of Dashrath. It is not in dispute that there was a hut situate on the disputed land on the date of occurrence. The question is whether the complainant had raised that hut. The three witnesses have given different statements regarding the raising of the hut. PW 1 Dashrath says that he had raised the hut on this land in the last `Falgun. It is not in dispute that there was a hut situate on the disputed land on the date of occurrence. The question is whether the complainant had raised that hut. The three witnesses have given different statements regarding the raising of the hut. PW 1 Dashrath says that he had raised the hut on this land in the last `Falgun. His statement was recorded on 8.3.76. This shows that according to him he had raised the hut in March, 1975 i.e. some nine months before the occurrence. On the contrary the statement of Gangaram, PW 2 is that they had raised the hut some 15-20 days before the date of occurrence i.e. at the time `Bajra and `Moth crop was sown. Obviously, there is a marked difference in the statements of the two brothers as to the period when the hut was raised. Umrao Singh, PW 3 brother-in-law of Dashrath has his own version to tell. He deposes that this hut was raised by them after the sowing of `Moth and `Bajra crop. Obviously, the three witnesses have given different versions regarding the raising of the hut on this land by Dashrath. This shows that the prosecution version that the hut was raised by Dashrath on this land is not true. It is significant to point out that the hut had opening towards the western side i.e. on the land belonging to the accused which fact is evident by the site- plan Ex. P-4 and the site inspection memo Ex. P-4A. The very fact that the hut had opening on the land of the accused goes to show that this hut was not raised by Dashrath. There could not be any occasion for Dashrath to keep opening of the hut on the land of the accused. This is the strongest circumstance which leads us to infer that the hut was not raised by Dashrath and the prosecution witnesses have given false statements. By the cir- cumstance that the hut opened on the land of the accused and not on the other side i.e. on the disputed land, it can only be inferred that the land on which the hut, was raised was not in possession of Dashrath on the date of occurrence and it was in the possession of the accused. (14). By the cir- cumstance that the hut opened on the land of the accused and not on the other side i.e. on the disputed land, it can only be inferred that the land on which the hut, was raised was not in possession of Dashrath on the date of occurrence and it was in the possession of the accused. (14). Apart from the above circumstances, Dashrath admits that after he pur- chased this land accused Jotram and his brothers had instituted a case in the court of S.D.M. saying that the land was in their possession and Dashrath should be restrained from taking possession from them. Dashrath also admits that the accused had taken away the `Khejri wood from this land and he had lodged a case against them but in that case the police did not challan the accused and gave final report. Dashrath further admits that the accused had prosecuted him under Section 107/117 Cr.P.C. saying that he was attempting to take forcible possession of the land. All these facts clearly indicate that Dashrath never obtained the possession of the disputed land and he was all the time attempting to take its possession. (15). The case for the defence is that the accused were in possession of the land for the last about 40 years. It is relevant to state that Sannu Ram is non-else that the cousin of the accused. The accused have filed a copy of the `Khasra Girdawari pertaining to the disputed land. This document shows that Manu was the holder of the land and accused Harlal and Bheraram were the cultivators. This `Khasra Girdawari pertains to S. Year 2017 to 2020. This means that the accused were in cultivatory possession of the land in the years 1960 to 1963. Only Sannu Ram could say as to whether he had taken possession of the land from the accused persons. As already stated, Sannu Ram has not been examined in the case. That being so, on the basis of the documents produced in the case and in view of the contradictions appearing in the statements of the three witnesses regarding the so- wing of the crop and raising of the hut, there is no escape from the conclusion that the land was in possession of the accused persons. (16). That being so, on the basis of the documents produced in the case and in view of the contradictions appearing in the statements of the three witnesses regarding the so- wing of the crop and raising of the hut, there is no escape from the conclusion that the land was in possession of the accused persons. (16). There is one more circumstance which shows that the disputed land was in possession of the accused persons. It is admitted position that at the time of the occurrence the tractor had run over the crop of `Killa; No. 25. Dashrath, Umrao Singh and Gangaram admit that they had gone on this land on that day and even the tractor had run over some crop on this land. The Tractor belonged to the complainant party. Had the crop been sown by the complainant party it could not have been destroyed by them. The very fact that the tractor ran over the crop and destroyed it goes to show that the crop was not sown by the complainant party and it did not belong to it. It is thus obvious that Dashrath and his companions had committed criminal trespass on the land which was in possession of the accused. (17). The prosecution version is that the occurrence took place when Gangaram and Dalip Singh proceeded to take water through this land. It is thus obvious that both Gangaram and Dalip Singh had gone on this land where crop was standing. It did amount to criminal trespass. The prosecution version that they were going to take water from the village can hardly be believed. According to the witnesses, they had gone to the land at about 8 a.m. The occurrence is said to have taken place just after they went to the field. It is difficult to believe that five persons who had gone there on the tractor would not take water water with them though they had planned to cultivate the land throughout the day. It is all the more surprising that water was needed by them immediately after they had reached the field. The story, the Gangaram and Dalip Singh were shot when they were proceeding to take water, has been concocted simply to show that Gangaram and Dalip Singh were unarmed which as a matter of fact, they were not. (18). It is all the more surprising that water was needed by them immediately after they had reached the field. The story, the Gangaram and Dalip Singh were shot when they were proceeding to take water, has been concocted simply to show that Gangaram and Dalip Singh were unarmed which as a matter of fact, they were not. (18). The prosecution version that Dashrath and his companions had gone to plough their land of 15 bighas situated on eastern side and they had actually ploughed it does not also appear to be true. The witnesses depose that they had shown the field to the Investigating Officer which was ploughed by them on that day, but the Investigating Officer does not say this fact. This indicates that the complainant party had not gone to plough the eastern side land but it had gone to take possession of the disputed land forcibly. (19). The fact remains that the complainant party had committed criminal trespass on the land which was in possession of the accused. Accused Harlal has raised plea of right of private defence to the property as well as to his person. Section 97 of the I.P.C. confers right of private defence to very person, to his own body and the body of any other person against any offence affecting the human body as also, to the property moveable or immovable of himself or of any other person against any act which is an offence falling under the definition of theft, rob- bery, mischief or criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass. This right is subject to the other provisions of Chapter-IV of the Indian Penal Code. Under Sec. 103 the right of private defence of property extends even to the voluntary causing of death or any other harm to the wrong doer for certain offence committed by him. The offence of criminal trespass and mischief are included therein provided there are circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence if such right of private defence is not exercised. Under Section 100 IPC the right of private defence extends to the voluntary causing of death of the assailant if there is reasonable apprehension that otherwise the result of the assault would be death or grievous hurt. Under Section 100 IPC the right of private defence extends to the voluntary causing of death of the assailant if there is reasonable apprehension that otherwise the result of the assault would be death or grievous hurt. Section 105 IPC regulates the period for which the right of private defence is available. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. (20). In the instant case, it has been seen that the land in dispute was in posse- ssion of the accused party and Dashrath and his companions had committed criminal trespass and they had caused mischief to the crop raised by the accused persons. Therefore, the accused had certainly a right of private defence to defend his property and this right was available till the time the members of the complainant party continued in the commission of criminal trespass and mischief. (21). The next question for consideration is whether the defence version, that the members of the complainant party had fired shots by gun and, therefore the accused had to open fire by his gun, can be believed. Before we consider the arguments advanced in this regard, we may notice that the three eye-witnesses state that accused Harlal had fired a shot standing outside the hut. Even accused in his statement under section 313 Cr.P.C. admits that he had fired a shot but he does not say that the shot fired by him had hit anyone. The fact that the shot was fired by the accused is also established by the report of the Forensic Science Laboratory Ex.P-31 which shows that the examination of 12 bore SBBL gun 4933 indicated that it was serviceable gun and that it was fired and that the cartridge case sent to them was fired from this gun. That being so, we will proceed with this assumption that accused Harlal had fired a shot at the place of occurrence. (22). That being so, we will proceed with this assumption that accused Harlal had fired a shot at the place of occurrence. (22). The defence version is that Harlal was sitting all alone in his hut when Dashrath, Gangaram, Umrao Singh, Bhagirath and Dalip Singh went there having lathis and guns and they started uprooting crop in `Killa No. 25 by the tractor and when he told them not to destroy the crop Dashrath insisted on destroying the crop and told him that he would kill him and thereafter Dalip Singh moved in `Khala and he opened fire from his gun from there and therefore he also fired a shot from his gun. He further says that after firing a shot he had gone towards the hut and at that time Dashrath also opened a fire but he could not see as to who was hit by that fire. The learned Sessions Judge has rejected the defence version in two ways. First, the members of the complainant party were unarmed. Second, even assuming that Dashrath was having a gun and he had fired a shot, the accused did not have a right of private defence, as he had fired the shot before the shot was fired by Dashrath. (23). It was contended before the trial Court that the injury suffered by Dalip Singh could not be caused by the accused from a distance of 50 `Pavandas and it could be caused by the shot fired by Dashrath from close range. This contention was repelled by the learned Sessions Judge by observing that probably the medical officer did not carefully see the injury and that no burn marks were found on the shirt of the deceased, which indicated that the shot was fired from long distance. He has given weight to this fact that in the inquest memo it was not stated that there was blackening on the injury of the deceased. For disbelieving the medical evidence he has referred to the opinion of Dr. V.R. Sharma in his treatise `Forensic Science in criminal investigation and trial and of Tailor in the book `Principles & Practice of Medical Jurisprudence Vol. - X Edition. (24). Dr. Swamy, P.W. 9 who had held autopsy of Dalip Singh deposes that there was blackening all around the wound on the chest. As there was blackening the fire range could not be more than 5 ft. - X Edition. (24). Dr. Swamy, P.W. 9 who had held autopsy of Dalip Singh deposes that there was blackening all around the wound on the chest. As there was blackening the fire range could not be more than 5 ft. whereas all the three eye-witnesses depose that accused Harlal had fired the shot from the distance of about `50 `Pavan das. It is obvious that if the medical evidence is accepted as correct the injury suffered by Dalip Singh was not caused by the shot fired by the accused. The Sessions Judge records strange reasoning when he disbelieves the expert medical evidence. He says that the doctor might not have seen the injury well and the colour around the injury might be grey. We fail to find the basis of saying so by the learned Sessions Judge. No question whatsoever was put to Dr. Swamy that he had not seen the injury properly or that the colour around the wound could be grey. When the doctor says that there was blackening all around the wound and this fact was also stated in the post-mortem report Ex. P.17, the learned Sessions Judge was not justified in saying that the colour around the wound could be grey. He has taken help from the observations in the book on Forensic Science in Criminal Investigation and Trials by Dr. V.R. Sharma wherein it is stated that sometimes blackening is greyish and it becomes difficult for the medical officer to know the correct colour. When questions were not asked to the medical officer at the time he was in the witness box, how can it be said that he might not have properly seen the colour around the wound. It has not been suggested in the examination of the medical officer that he was novice and had not conducted the post-mortems earlier. Therefore, on the ground that some opinion is written in a book it could not be inferred that the medical officer might not have carefully seen the colour around the wound. (25). The learned Sessions Judge then observes that there was no blackening on the hole of the shirt corresponding to the injury suffered by Dalip Singh. We are unable to understand how the learned Sessions Judge has made such observations. (25). The learned Sessions Judge then observes that there was no blackening on the hole of the shirt corresponding to the injury suffered by Dalip Singh. We are unable to understand how the learned Sessions Judge has made such observations. Neither a question was asked to the Investigating Officer in this regard that there was no mark of blackening around the hole nor specific question was asked to the medical officer. The shirt was, of course, shown to Dr. Swamy when he was in the witness box and Dr. Swamy deposes that there is one hole visible on the shirt Ex. A-1 and that some portion of the shirt is torn or cut off but no question was asked to him about blackening around the hole. The statement of the doctor cannot be interpreted to mean that he did not see the marks of blackening around the hole. (26). The learned Sessions Judge refers to the Inquest Memo Ex. P-16 in which there is a mention of the injury of Dalip Singh on his chest, but it is not stated that blackening was noticed at the injury, and comments that it shows that there was no blackening at the injury. It could not be expected from the Investigating Officer or the `Panchas to see the injuries with that meticulous care as to see if there was blackening or not. This fact cannot be lost sight of that because of the injuries suffered by Dalip Singh there was bleeding and as such the blackening around the wound could not be noticed by naked eye. (27). The learned Sessions Judge then reproduces some observations of Tailor in his book at page No. 430 & 431. We are unable to make out anything from the opinions reproduced in the judgment. What has been stated at page No. 430 is that the surrounding skin may be scorched or not and there may be a zone of blackening or peppering with grains of powder, according to the distance from which the weapon was fired. From page 431 of the Book the learned Sessions Judge reprodu- ces the following words :– ``All entrance wounds, if examined, will be found to have a zone of denuded epithelium immediately surrounding the orifice. This is caused by the spin of bullet and tends to dry and become discoloured shortly after death. From page 431 of the Book the learned Sessions Judge reprodu- ces the following words :– ``All entrance wounds, if examined, will be found to have a zone of denuded epithelium immediately surrounding the orifice. This is caused by the spin of bullet and tends to dry and become discoloured shortly after death. It should not be confused with the marks due to powder for it gives no indication of range. Tailor has nowhere opined that the colour of the skin around the wound becomes black, even though the distance of fire was very long. In our opinion, the learned Sessions Judge has fallen in error when he discarded the expert opinion of Dr. Swami who had examined the injuries. His whole attempt, it seems, was to see that the conviction was recorded this way or that way. (28). The fact that there was blackening around the wound suffered by Dalip Singh indicates that he had suffered the fire arm injury from close range. Obviously, that injury was not caused by the shot fired by accused Harlal who was at a distance of 50 `Pawandas from the deceased. (29). The case for the accused is that Dalip Singh had fired a shot from the `Khala towards him. Admittedly, one empty case and 9 wads were found near the `Khala. The prosecution has not given any explanation as to in what circumstances the empty case and the wads were found lying near the place where Dalip Singh had fallen. Obviously, those wads and empty case could not be of the fire shot by accused Harlal from a distance of 50 `Pavandas. Therefore, the possibility, that the wads and the empty case were of the shot fired by Dalip Singh himself cannot be ruled out. It is significant to point out that though these wads and empty case were found lying near the place where Dalip Singh was lying, yet they were not sent to the Forensic Science Laboratory for examination. Prahlad Singh, I.O. was asked specific question as to why did he not send them to the ballistic expert. His explanation that they did not relate to the occurrence so he did not send them, hardly carries conviction. We fail to understand as to how the Investigating Officer thought that they did not relate to the occurrence. Prahlad Singh, I.O. was asked specific question as to why did he not send them to the ballistic expert. His explanation that they did not relate to the occurrence so he did not send them, hardly carries conviction. We fail to understand as to how the Investigating Officer thought that they did not relate to the occurrence. When used projectile and wads were found near Dalip Singh, it was the duty of the Investigating Officer to send them to the Ballistic Expert for examination. It is not expected from the Investigating Officer to toe the line of the first informant. The investigation should be impartial. It is the duty of the I.O. to collect all the things found at the place of occurrence in order to ascertain whether the complainant had come out with true story. Even according to the findings recorded by the learned Sessions Judge these wads and empty case related to the occurrence as they were of the shot fired by Dashrath. It would have been easier for the Court to check the correctness of the prosecution version of the occurrence if the Investigating Officer had sent them to the ballistic expert along with the licensed weapons of the members of the comp- lainant party for his opinion. We are unable to appreciate the observations of the trial Judge that the non sending of the empty and wads to the ballistic expert is not fatal to the prosecution and he was certain that the empty and wads were of the fire shot by Dashrath. (30). The learned Sessions Judge observes that the accused even admits that Dashrath had fired a shot after a shot was fired by him and therefore the firing of the shot by Dashrath did not give him a right of self defence. What has been done by the learned Sessions Judge is that he accepted some part of the defence version, but rejected the remaining part. The version of the accused, as already stated, is that Dalip Singh had fired a shot and thereafter he had to fire a shot in self defence and Dashrath had also fired a shot. It may be that Dashrath fired a shot, after the accused had fired a shot but this does not mean that Dalip Singh had not fired a shot. It may be that Dashrath fired a shot, after the accused had fired a shot but this does not mean that Dalip Singh had not fired a shot. If the prosecution wanted to say that the wads and empty which were lying near Dalip Singh were of the shot fired by Dashrath then it should have come with the case that Dashrath had fired the shot from such a distance which could result into dropping of the wads and empty near Dalip Singh. The approach of the trial Court in accepting one part of defence version on which also there is no evidence on record, and rejecting the remaining part, was wholly erroneous. Any stand taken by the accused could hardly be used as evidence, unless its truth was otherwise established. Once the defence version of firing by Dashrath is accepted then the Court could not be justified in rejecting the defence version that Dalip Singh had fired first shot. The statement of the accused at the most could be used for lending assurance to the conclusions already drawn by the Court on the basis of the evidence of prosecution witnesses. However, in the instant case there is no evidence of the prosecution that Dashrath had fired shot after the firing of shot by the accused. As such, no conclusions as to the sequence of the firing could be drawn on the basis of the statement of the accused. It at all some conclusions are to be drawn then they will have to be on the basis of entire statement of the accused. It was not permissible for the Court to accept some part of his statement and reject the other part and construct a new case. (31). The defence version, that after Dalip Singh fired a shot the accused opened fire in his self defence and he took his position by the side of the hut and at that time Dashrath fired a shot, which might have hit Dalip Singh, who was not far away from him, does not appear to be improbable. Since blackening was found around the wound suffered by Dalip Singh, obviously the firing was from the dis- tance of less than 5 ft. It is possible that the wads and the empty found near Dalip Singh were that of the shot fired by Dashrath. Since blackening was found around the wound suffered by Dalip Singh, obviously the firing was from the dis- tance of less than 5 ft. It is possible that the wads and the empty found near Dalip Singh were that of the shot fired by Dashrath. At the same time, looking to the distance of place where the empty and wads were lying, this possibility is also not ruled out that they were of the shot fired by Dalip Singh himself. (32). There is ample material on record to hold that all the five members of the complainant party were having `lathis and firearms with them. Shri Prahlad Singh, I.O., who had inspected the site admits that there were three `lathis lying at the spot. The prosecution does not say that the `lathis belonged to the accused. The defence version, therefore, that the members of the complainant party had gone there armed with `lathis has to be accepted. (33). The Sessions Judge has rejected the defence version on the ground that at the time of site inspection gun was not found lying near Dalip Singh and that had he been armed with a gun he would not have allowed opportunity to accused Harlal to fire at him. The fact that gun was not found lying does not necessarily mean that Dalip Singh was not armed with a gun at the time of occurrence. Dashrath and his companions had ample opportunity to remove the gun from the place of occurrence. It is significant to point out that Dashrath is not an ordinary villager. Not only that he had the experience of litigation, he was even a previous convict of the offences under Section 380 and 224 IPC. He was asked specific question regarding his convictions to which he replied that he did not remember. This clearly shows that he was convict but he did not want to admit in clear terms. Dashrath admits that he had faced two murder trials besides some other cases. There is also evidence on record that he is an history sheeter. Prahlad Singh, P.W. 9 clearly admits that Dashrath was history-sheeter of his police station. It was not difficult for such a person to have removed the fire arm from there. There is no basis of saying that Dalip Singh could not have left an opportunity for the accused to use his fire arm. (34). Prahlad Singh, P.W. 9 clearly admits that Dashrath was history-sheeter of his police station. It was not difficult for such a person to have removed the fire arm from there. There is no basis of saying that Dalip Singh could not have left an opportunity for the accused to use his fire arm. (34). According to the findings of the trial Court atleast one member of the complainant party was armed with fire arm. It is thus obvious that the members of the complainant party had gone to the site having `lathis and fire arm with them. We have already held that the disputed land was in possession of the accused on that day. We have further found that the members of the complainant party had uprooted the crop by moving the tractor thereon. It is also fully established that members of the complainant party were armed with `lathis and fire arms and even shots were fired by them. In these circumstances, it has to be accepted that the accused had a reasonable cause of apprehension of suffering at least a grievous hurt. Section 100 of the Indian Penal Code gives a valuable right to every person to even cause the death of the assailant if the assault is likely to occasion in causing his death or grievous hurt. Besides that, as already held, the accused had also a right of private defence to his property against the criminal trespass and mischief caused by the members of the complainant party. There was bound to be reasonable apprehension in the mind of the accused that either death or grievous hurt would be caused to him if he did not exercise his right of private defence against the mischief. That being so, the right of private defence of person and property both was available to accused Harlal. Keeping in view the facts of the case, it cannot be said that the accused had exceeded the right of private defence. His conviction under Sec. 302 IPC is unsustainable. (35). Accused Harlal was having licensed gun and he had used it in the exercise of right of private defence. It is also not borne out that the shot fired by him had hit Dalip Singh. Therefore, his conviction under Section 27 of the Indian Arms Act also cannot be maintained. (36). His conviction under Sec. 302 IPC is unsustainable. (35). Accused Harlal was having licensed gun and he had used it in the exercise of right of private defence. It is also not borne out that the shot fired by him had hit Dalip Singh. Therefore, his conviction under Section 27 of the Indian Arms Act also cannot be maintained. (36). The prosecution case was that Jotram was also there along with accused Harlal and he had also fired a shot which had hit Gangaram. Accused Jotram, (since dead) had pleaded that he was not there at the spot and he has been falsely impli- cated in the case. Since Jotram has died we are not required to discuss evidence led against him in detail, yet keeping in view that accused Harlal was also charged for the offence under Section 307 with the aid of Section 34 IPC we think it necessary to deal with the matter. (37). In the preceeding paragraphs we have concluded that Harlal and Jotram being brothers, were in lawful possession of the disputed land and that the members of the complainant party had gone there armed with fire arms and `lathis to take possession of the land forcibly. If something was done by Jotram it was obviously done in the exercise of right of private defence. When two or more per- sons act in the exercise of right of private defence it cannot be said that they had shared common intention to commit an offence. In such a case, none of the assailant can be convicted with the aid of Section 34 IPC. It is different thing that the person who had exceeded the right of private defence can be held guilty for his act. That being so, the conviction of the appellant Harlal cannot be maintained un- der Section 307/34 IPC. (38). Consequently, this appeal succeeds. The trial courts judgment convicting appellant Harlal is set aside and he is acquitted of the offences under Sections 302, 307/34 IPC and Section 27 of the Indian Arms Act. He is on bail. He shall not surrender to the bail bonds which stand cancelled. (39). The appeal of Jotram has abated on his death.