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2004 DIGILAW 145 (HP)

BABU DIN v. STATE OF H. P.

2004-07-08

LOKESHWAR SINGH PANTA, R.L.KHURANA

body2004
JUDGMENT R.L. Khurana, J.—The four appellants, Babu Deen, Sahu, Sher Ali and Moju Din, hereinafter referred to as Al to A4, respectively, were tried for the offences under Section 302, 325 and 323 read with Section 34, Indian Penal Code, in case FIR No. 287 of 1999, Police Station, Una for having caused the death of one Rasila son of Sattar Deen, grievous hurt to Mian son of Rasila and simple hurt to Hassain Deen and Mian sons of Rasila on 12.5.1999 at about 10.30 a.m. in the area of village Basal Khawaja Bella. They stand convicted for such offences by the learned Additional Sessions Judge, Una, vide judgment dated 8.1.2002 and upon such conviction each one of them have been sentenced as under : Offence s for which Convicted. Sentence imposed. (i) 302/34 Indian Penal Code. Imprisonment for life. (ii) 325/34 IPC Rigorous imprisonment for one year and fine of Rs. 1000. In default of payment of fine, simple imprisonment for a period of one month. (iii) 323/34 IPC Rigorous imprisonment for three months. All the three sentences of imprisonment were directed to run concurrently. 2. The matrix of the prosecution case may be thus stated. On 12.5.1999 the deceased Rasila, his sons Hassain Deen, Meenu alias Mian, Mohammad Basheer and others, who are Muslim Gujjar of District Chamba, along with their herds of cattle were proceeding towards Talwara. On the way at about 9 a.m. they stopped in an open field in village Basal for the purpose of cooking and taking their meals. While they were cooking their meal, Al is alleged to have come there. He told them that the field where they were camping was his pasture land having purchased the same from one Sat Pal and asked them not to camp there along with their herds of cattle. The deceased, his sons and others replied that they would be leaving the place after taking their meal. This enraged Al, who at that time was armed with a "lathi". He inflicted blows with the lathi on both the head and arms of Hassain Deen (PW 16) son of the deceased. The deceased, his sons and others replied that they would be leaving the place after taking their meal. This enraged Al, who at that time was armed with a "lathi". He inflicted blows with the lathi on both the head and arms of Hassain Deen (PW 16) son of the deceased. A3 is alleged to have inflicted blows with the help of a spear (Barsha) on the right leg, left arm and left eye of the deceased, while A2 and A4 are alleged to have lathi blows on the person of Mian (PW 17), another son of the deceased. 3. On hearing the cries of the deceased, PW 16 and PW 17 for help S/Shri Swar Din, Bibbi, Bakshi (PW 18) and Tarsem Lal came to the spot. It is alleged that had these persons not come to the spot the four accused would have killed all of them. The deceased and his two injured sons were removed to District Hospital, Una. 4. PW 1 Dr. Parveen Bhardwaj who examined the deceased and his two sons, namely, PW 16 and PW 17, found the following injuries on the person of the deceased: (i) Incised wound 4 cm. x 1 cm. x 1 cm. with clear edges on left hand. Bleeding was present. (ii) Incised wound 3 cm. x 1 cm. subcutaneous tissue deep on the right leg front side. (iii) History of vomiting. 5. The injuries were found to be of simple nature having been caused within the probable duration of six hours. The deceased was referred to P.G.I. Chandigarh for further management in view of history of vomiting and to ensure if there was any head injury. PW 1 Dr. Praveen Bhardwaj also found the following injuries on the person of PW 16 Hassain Deen son of the deceased. (i) Red bruise 3 cm. x 2 cm. on the right forearm middle part; (ii) Red abrasion 4 cm. x 2 cm. on the right forearm. Bleeding and swelling was present; (iii) Abrasion right writ 1 cm. x 1 cm; (iv) 6 cm. x 1.5 cm. bruise on the left forearm on outer part near elbow. Swelling was present; (v) 2 cm. x 2 cm. x skin deep lacerated wound on the right side parietal bone. 6. x 2 cm. on the right forearm. Bleeding and swelling was present; (iii) Abrasion right writ 1 cm. x 1 cm; (iv) 6 cm. x 1.5 cm. bruise on the left forearm on outer part near elbow. Swelling was present; (v) 2 cm. x 2 cm. x skin deep lacerated wound on the right side parietal bone. 6. All the injuries were opined to be of a simple nature having been caused by a blunt weapon within the probable duration of six hours. 7. The following injuries were found by PW 1 on the person of PW 17 mian: (i) Linear abrasion left shoulder joint with swelling; (ii) Lacerated wound 3 cm. x 3 cm. x skin-deep on occipital region. Bleeding was present; (iii) Lacerated wound on left leg 2 cm. x 2 cm. Bleeding was present. 8. On the basis of X-ray carried out in respect of injury No. (i) above, the same was opined to be grievous while the remaining two injuries were declared as simple. The three injuries were further opined to have been caused by a blunt weapon within the probable duration of six hours. 9. Information about the three injured having been brought to the hospital was given by PW 1 to the police. On the basis of such information PW 19 Sub Inspector Sarup Chand went to the hospital and after collecting the medico legal certificates of the three injured, he went to the spot where he recorded the statement Ex. PT of PW 15 Mohammad Bashir son of the deceased at about 5 p.m. On the basis of such statement a case for the offences under Section 307, 324 read with Section 34, Indian Penal Code, came to be registered vide FIR No. 287/1999 at Police Station, Una. 10. Since there was history of vomiting in the case of the deceased and who was found unconscious, C.T. Scan of his skull was carried out at PGI Chandigarh on 13.5.1999 which revealed a contusion haemotoma of the right temporal region. He was thus operated upon. However, inspite of the operation, he could not be saved and he died on 14.5.1999 at about 1.20 p.m. Post-mortem was carried out by PW 4 Dr. S.K. Garg at General Hospital, Chandigarh. The cause of death was opined as shock and haemorrhage due to head injuries noticed during the post-mortem. 11. He was thus operated upon. However, inspite of the operation, he could not be saved and he died on 14.5.1999 at about 1.20 p.m. Post-mortem was carried out by PW 4 Dr. S.K. Garg at General Hospital, Chandigarh. The cause of death was opined as shock and haemorrhage due to head injuries noticed during the post-mortem. 11. On the death of the deceased, the offence under Section 302, Indian Penal Code, came to be added to the case originally registered. The four accused, while in custody, are alleged to have made disclosure statements leading to the recoveries of spear Ex. P2 and lathies Ex. P6 to P8. 12. After the completion of the investigation of the case, all the four accused were sent up for trial. They were charged for the offences under Section 302, 325 and 323 read with Section 34 of the Indian Penal Code. They pleaded not guilty and claimed trial. 13. Al, in answer to question No. 32 of his statement recorded under Section 313, Code of Criminal Procedure, has putforth the following defence: "This false case has been framed against us. In fact the land was my charand for the last 20 years and in my charand Rasila, Mian and Hassan Din along with cattle came and started grazing cattle in my Charand. Billi and Bano went on the spot and requested them not to graze the cattle in the Charand on which Mian, Hassan Din and Rasila started giving beatings to them. On hearing hue and cry I went on the spot and tried to rescue Bano who was being beaten by Rasila and when I was rescuing Bano and gave push to Rasila, he struck against the tree. I along with Billi and Bano were also medically examined in District Hospital, Una for the injuries sustained by us. This false case has been framed as a counter blast and my case has been wrongly recommended for cancellation. PW Bibi, Hussain Bux, Swarddin and Bashir were not present on the spot and accused Sahuddin, Mojuddin and Sher Ali were also not present/ 14. A2 and A4 have simply denied the prosecution story. They pleaded that they were not present at the spot at the relevant time and have been falsely implicated. 15. A 3 also pleaded false implication and that he was not present at the spot. A2 and A4 have simply denied the prosecution story. They pleaded that they were not present at the spot at the relevant time and have been falsely implicated. 15. A 3 also pleaded false implication and that he was not present at the spot. His defence as disclosed in answer to question No. 31 of his statement recorded under Section 313 Code of Criminal Procedure, is as under : "I was not present on the spot. On 11.5.1999, I went in marriage at Tand, District Hoshiarpur, Punjab and remained in the marriage for the night till 7.00 a.m. on 12.5.1999 because the marriage in our community is celebrated at night. On 12.5.1999 I reached my house at Hoshiarpur at 8.00 a.m. in the morning. At my house in Hoshiarpur there was settlement regarding sale of my buffaloes going on when I reached my home and talk continued upto 2 p.m. In which Dharam Chand Swami, Parkash, Chaman Lal Pradhan and number of other persons were present, who got the settlement effected at 2. p.m. Therefore, I was not at Basal. I gave one application, to the S.P. through my relatives and one application was given by my relatives to the S.P. after my arrest but no fair investigation was carried out on the same.” 16. At this stage, it may be pointed out that in respect of the occurrence which took place between the parties, a report was made to the police at about 11 a.m. on the day of the occurrence itself and much before the receipt of information by the police from PW 1 about the deceased and his two sons having been brought to the hospital, by Al to the effect that one Smt. Billi, who was staying with the accused for the last about one month before the occurrence, had purchased a pasture land from one Sat Pal. At about 10.30 a.m. on the day of occurrence, PW 16 along with others and herds of cattle came to the said pasture land to graze their cattle. Al, Billi and others objected to the grazing of the cattle by PW 16 and his companions on their land. PW 16 got enraged and he attacked Al with a spindle (Takua) and hit him on the head and right elbow. Al, Billi and others objected to the grazing of the cattle by PW 16 and his companions on their land. PW 16 got enraged and he attacked Al with a spindle (Takua) and hit him on the head and right elbow. The deceased and his three sons started beating Billi and Bano, and were rescued by Roshan Din and Mehran Deen. On the basis of such report a case for the offence under Section 324 and 323 read with Section 34, Indian Penal Code, was registered at Police Station, Una vide FIR No. 286 of 1999 (Ex. PX). 17. Al, Billi and bano were got medically examined by the police. PW 1 Dr. Praveen Bhardwaj conducted such medical examination. He found the following injuries on the person of Al: (i) Lacerated wound 2 cm. x 1 cm. skin deep on occipital region; (ii) Red abrasion on the back of right elbow 3 cm. x 1 cm. 18. Both the injuries were found to be of simple nature having been caused with a blunt weapon within the probable duration of six hours. Following injuries were found on the person of Smt. Billi by PW 1: (i) 5 cm. x 1/2 cm. skin deep incised wound on the scalp just to the left mid tine and parallel to it 10 cm. above left ear. Edges were clean and bleeding was present; (ii) 4 cm. x 2 x skin deep lacerated wound on the occipital region; (iii) Injury on the teeth. 19. Injuries No. (i) and (ii) were declared to be of simple nature. Injury No. (i) was found to have been caused by a sharp-edged weapon within the probable duration of six hours while injury no. (ii) was opined to have been caused by a blunt weapon within the said probable duration. In so far as injury No. (iii) is concerned, the opinion as to the nature of injury was reserved till after the receipt of the report of Dental Surgeon. It appears that though the injured was referred to Dental Surgeon by PW 1, no steps were taken by the police to get the injured examined by a Dental Suregeon for opinion as to injury No. (iii). 20. PW1 also noticed the following injury on the person of Smt. Bano: (i) Lacerated wound 2 cm. x 1 cm. skin deep on the scalp near hariline on right front to parietal bone. 20. PW1 also noticed the following injury on the person of Smt. Bano: (i) Lacerated wound 2 cm. x 1 cm. skin deep on the scalp near hariline on right front to parietal bone. 21. The injury was described as simple having been caused with a blunt weapon within the probable duration of six hours. 22. Both the cases were investigated by PW19 Sub Inspector Sarup Chand. However, it appears that in so far as the case registered on the basis of the report of Al vide FIR No. 286/1999 (Ex. PX) is concerned, a cancellation report was prepared by PW19 on 16.11.1999. Nothing has come on the record to show if the cancellation report dated 16.11.1999 was presented to the Court or as to what happened thereto. The matter appears to rest there. 23. The prosecution in support of its case in order to bring home the offences against the accused, examined twenty witnesses in all. Three witnesses were examined by the accused in his defence. DW 1 Smt. Billi is one of the person who was injured in the occurrence. She was examined to prove the defence version that it was the deceased and his sons who were the attackers. DW2 Dharam Chand and DW3 Mohammad Ali have been examined to prove the alibi put forth by A3. 24. The learned Additional Sessions Judge, upon consideration of the evidence coming on record vide the impugned judgment dated 8.1.2002 convicted and sentenced each of the four accused as aforesaid. 25. We have heard the learned Counsel for the accused and the learned Additional Advocate General for the State and have also gone through the record of the case. 26. At the very outset, it may be stated that admittedly some occurrence did take place in the pasture land in village Basal between the parties on the fateful day. It is also in evidence that members of both the parties received injuries in such occurrence and that cross-cases were registered vide FIR Nos. 286 and 287 of 1999. 27. It was contended on behalf of the accused that the genesis of the occurrence was different from what the prosecution has projected and that the occurrence, in fact, took place in the manner suggested by the accused in their defence. 286 and 287 of 1999. 27. It was contended on behalf of the accused that the genesis of the occurrence was different from what the prosecution has projected and that the occurrence, in fact, took place in the manner suggested by the accused in their defence. According to the learned Counsel for the accused, the deceased and his sons were the aggressors and Al, Smt. Billi and Smt. Bano were only exercising the right of private defence. A2 to A4 were not present at the spot at the relevant time. 28. It is by now well settled that even if the accused has not pleaded self defence, it is open to the Court to consider such a plea if the same arises from material on record. The burden of establishing the plea of self defence is on the accused and such burden can be discharged by showing preoponderance of probabilities in favour of that plea on the basis of the material available on the record. In the present case, a specific plea as to private defence has been raised on behalf of the accused. 29. The question, therefore, which arises for consideration is whether the accused had the right of private defence and if so, whether they did not exceed such right of private defence. 30. Broadly speaking, the right of private defence rests on three ideas, namely— (a) there must be reasonable apprehension of danger to the body from the attempt or threat to commit some offence; (b) the right does not commence until there is a reasonable apprehension; and (c) there must be no more harm inflicted than is necessary for the purpose of defence. The apex Court in Dominic Varkey v. The State of Kerala, AIR 1971 SC 1208, has held— "................It is entirely a question of fact in the circumstances of a case as to whether there has been excess of private defence within the meaning of the 4th clause of Section 99 of the Indian Penal Code, namely, that no more harm is inflicted than is necessary for the purpose of defence. No one can be expected to find any pattern of conduct to meet a particular case, Circumstances must show that the court can find that there was apprehension to life or property or of grievous hurt. No one can be expected to find any pattern of conduct to meet a particular case, Circumstances must show that the court can find that there was apprehension to life or property or of grievous hurt. If it is found that there was apprehension to life or property or of grievous hurt the right of private defence is in operation. The person exercising right of private defence is entitled to stay and overcome the threat........" 31. It has further been held that the apprehension is in the mind of the person exercising the right of self-defence and the apprehension is to be ascertained objectively with reference to the events and deeds at that crucial time and in the total situation of surrounding circumstances. 32. In Venkata Siva Subhrayanam v. State of Andhra Pradesh, 1970 Cri.LJ 1004, the Supreme Court has observed that the right of private defence serves a social purpose and as observed by the Supreme Court more than once there is nothing more degrading to the human spirit than to run away in face of peril. This right, it has further been observed, is basically preventive and not punitive. It is in this background that the provisions of Sections 96 to 106 IPC, which deal with the right of private defence have to be construed. According to Section 96 nothing is an offence which is done in the exercise of the right of private defence and under Section 97 subject to the restrictions contained in Section 99 every person has a right to defend: (1) his own body and the body of any other person against any offence affecting the human body and (2) the property whether moveable or immovable of himself or of any other person agaisnt any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit these offences. The right of private defence to the body commences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as long as the apprehension of danger to the body continues. The right of private defence to the body commences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as long as the apprehension of danger to the body continues. It has also been held in the aforesaid decision that even if the plea of self defence has not been taken by the accused, it does not preclude the court from giving to him the benefit of the right of private defence if on proper appraisal of evidence and other relevant materials on record the court concludes that the circumstances in which he found himself at the relevant time gave him the right to use his instrument in exercise of the right/ 33. Section 102, Indian Penal Code, deals with the commencement and continuance of the right of private defence of the body. It provides:- "102.Comnencement and continuance of the right of private defence of the body.—The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as apprehension of danger to the body continues.” 34. Dealing with the scope of Section 102, Indian Penal Code, the apex Court in Deo Narain v. State of U.P. (1973 Cr.L.J. 677), has helds— ".......the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent and not remote or distant danger. This right rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repel that force in self-defence. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above Section. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above Section. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right. The right to punish for the commission of offences vests in the State (which has a duty to maintain law and order) and not in private individuals. If after sustaining a serious injury there is no apprehension of further danger to the body then obviously the right of private defence would not be available. In our view, therefore, as soon as the appellant reasonably apprehended danger to his body even from a real threat on the part of the party of the complainant to assault him for the purpose of forcibly taking possession of the plots in dispute or of obstructing their cultivation, he got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right.” 35. Sections 97 to 106, Indian Penal Code prescribes the extent and limitations of the right of private defence. From a plain reading of these Sections, it is manifest that such a right can be exercised only to repel unlawful aggression and not to retaliate. To put it differently, the right is one of defence and not of requital or reprisal. (See: Rajesh Kumar v. Dharamvir and others, 1997 Cr. LJ. 2242). 36. In Bhaiya Bahadur Singh v. State of Madhya Pradesh (AIR 1996 SC 3373), it has been held:— "When an accused person sets up a plea of self defence, the onus to establish that plea lies on him It is well established that the accused is not required to prove that plea beyond reasonable doubt but has merely to show it as probable. The onus to probabilise the defence version, from the salient facts and circumstances appearing in the prosecution case, or otherwise set up by the accused in the form of defence evidence, is always on him.” 37. The evidence coming on the record of the present case, therefore, has to be examined in the light of the above stated legal position. 38. The evidence coming on the record of the present case, therefore, has to be examined in the light of the above stated legal position. 38. In the present case simple injuries with sharp edged and blunt weapon have been proved to have been sustained by Al, Smt. Billi (DW1) and Smt. Bano. Such injuries, though of simple nature, are found on the vital parts of the person of Smt. Billi (DW1) and Smt. Bano being on the scalp and parietal region. No explanation has been offered for such injuries by the prosecution. Rather the prosecution witnesses have denied the injuries on the person of Al, Smt. Billi (DW1) and Smt. Bano. In fact, as per the prosecution case neither DW1 Smt. Billi nor Smt. Bano is admitted to be present at the spot at the relevant time. 39. The Honble Supreme Court in Moti Singh v. State of Maharashtra [JT 2002 (2) SC 133] has held that the dimension of the injuries may not be serious, it is the situs of the injuries that would indicate whether the accused could reasonably entertain the apprehension that at least grievous injuries/hurt would be caused to them by the assaulters unless the aggression is thwarted. 40. In Bhagwan Swaroop v. State of Madhya Pradesh [1992 SCC (Cr.) 422] it has been held that the fact that the father of the accused had received simple injuries was not relevant where fatal injury was equally possible. It was further held that capability of the weapon wielded by the aggressor is to be kept in view. The Honble Court observed in para 9 of the judgment as under : "We do not agree with the Courts below. It is established on the record that Ram Swaroop was being given lathi blows by the complainant party and it was at that time that gunshot was fired by Bhagwan Swaroop to save his father from further blows. A lathi is capable of causing a simple as well as a fatal injury. Whether in fact the injuries actually caused were simple or grievous is of no consequence. A lathi is capable of causing a simple as well as a fatal injury. Whether in fact the injuries actually caused were simple or grievous is of no consequence. It is the scenario of a father being given lathi blows which has to be kept in mind and we are of the view that in such a situation a son could reasonably apprehend danger to the life of his father and his firing a gunshot at that point of time in defence of his father is justified. We, therefore, set aside the finding of the Courts below on this point and hold that Bhagwan Swaroop fired the gunshot to defend the person of his father." 41. In State of Punjab v. Buta Singh [AIR 1991 SC 1316] it was held that a person who is apprehending death or bodily injury cannot weigh in Golden Scales in the spur of moment and in the heat of moment, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repeal the force in self-defence and the right of private defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper-technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self preservation is the paramount consideration. But, if the fact-situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private-defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially a finding of fact. 42. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially a finding of fact. 42. Again in Laxman Singh v. Poonam Singh and others [AIR 2003 S.C. 3204] it has been held by the Honble Supreme Court that non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent, and dis-interested, so probable, consistent and creditworthy, that it far outweighs the effect of omission on the part of the prosecution to explain the injuries. 43. It was further held that in order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. 44. In the present case, as pointed out above, Al alongwith DW1 Smt. Billi and Smt. Bano had received the injuries in the occurrence. In so far as DW1 and Smt. Bano are concerned the injuries are on vital part though simple in nature. One of the injuries on the person of DW1 Smt. Billi is shown to have been caused with a sharp edged weapon. Meaning thereby that the complainant party was armed with some sharp edged weapon at the relevant time. This could give rise to a reasonable apprehension in the mind of the accused party that grievous hurt may be caused to them if the aggression is not thwarted. The injured witnesses, namely, PW16 and PW17, the two sons of the deceased who were with the deceased have denied to have caused any injury either to Al or to DWI Smt, Billi or to Smt. Bano. They have claimed themselves to be unarmed at the relevant time. 45. In Smt Rukma and others v. Jala and others, [AIR 1997 SC 3907] as many as six accused had received injuries during the incident. They have claimed themselves to be unarmed at the relevant time. 45. In Smt Rukma and others v. Jala and others, [AIR 1997 SC 3907] as many as six accused had received injuries during the incident. One of the accused had received incised injury on his hand while the other had sustained a lacerated wound on his head. AH the injured eye witnesses who were with the deceased had denied having caused any injury to any of the accused. They had flatly denied that they had weapons with them at the time of incident. The learned trial Court believing the version of the injured eye witnesses convicted and sentenced the accused. However, on appeal, the High Court of Rajasthan set aside the conviction and sentence of all the accused. The High Court did not believe the evidence of the injured eye witnesses in view of the non-explanation of the injuries found on the person of six accused. On further appeal to the Honble Supreme Court, the acquittal of the accused as recorded by the High Court was upheld and it was observed that under the circumstances of the case the High Court was justified in not placing reliance on the evidence of the injured eye witnesses. 46. It was contended by the learned Additional Advocate General that the accused are disentitled to get the benefit of right of private defence since such plea has been raised only as an afterthought and that the facts brought on record as to private defence are self contradictory. 47. There is no merit in the contention of the learned Additional Advocate General. It would be quite unjust to deny right of private defence to the accused merely on the ground that they adopted a different line of defence. If the evidence adduced by the prosecution indicates that the accused were put under a situation where they could reasonably have apprehended grievous hurt even to one of them, it would be inequitable to deny the right of private defence to the accused merely on the ground that they had adopted a different plea during the trial. The crucial factor is not what the accused pleaded, but whether the accused had the cause to reasonably apprehend such danger. The crucial factor is not what the accused pleaded, but whether the accused had the cause to reasonably apprehend such danger. A different plea adopted by the accused would not foreclose the judicial discretion on existence of such a situation [See: Moti Singh v. State of Maharashtra (J.T. 2002 (2) SC 133)]. 48. The accused have claimed that they had taken the pasture land from one Satpal. The deceased, his sons and other companions had set up a camp there and had started grazing their cattle there. This was objected to by DWI Smt. Billi and Smt. Bano. The deceased and his sons got enraged and starred assaulting DWI Smt. Billi and Bano. When Al intervened to save the two ladies, he was also assaulted. Injuries were caused to the deceased and his two sons during such scuffle in self defence. 49. It is significant to note that the claim of the accused that they had taken the pasture land from Satpal has not been rebutted by the prosecution. The abovenamed Satpal has neither been associated in the Investigation of the case nor examined during the course of trial. In fact none of the witnesses for the prosecution has denied this fact. Therefore, it has to be presumed that the pasture land where the deceased and his party was camping belonged to the accused and, as such, the accused were justified and were within their rights to object to the camping and grazing of cattle by the deceased and his party. 50. The defence put forth by the accused cannot be said to be an afterthought. A report regarding the occurrence was made by A1 against the deceased and his sons much before the registration of the case against the accused oit the basis of the statement Ex. PT of PW 16. Though the two cross cases were investigated by the same investigation officer, namely, PW 19, for the reasons best known to him he chose to prepare a cancellation report in the case registered at the instance of A1. 51. The story put forth by the prosecution leading to the registration of the case against the accused is not free from doubt. The investigation officer (PW 19) Sub Inspector Sarup Chand has deposed that on the receipt of information from the hospital at about 1.20 P.M., he had gone to the hospital. 51. The story put forth by the prosecution leading to the registration of the case against the accused is not free from doubt. The investigation officer (PW 19) Sub Inspector Sarup Chand has deposed that on the receipt of information from the hospital at about 1.20 P.M., he had gone to the hospital. He moved an application before the Doctor seeking opinion if the injured Rasila (deceased), Mian (PW17) and Hassain Deen (PW16) were fit to make a statement. The Doctor, however, opined that the injured were not fit to make a statement. Thereafter he went to the spot and recorded the statement of PW15 Mohammad Bashir on the basis of which the case was registered. 52. However, during the course of cross-examination PW19 contradicted himself by stating that when he reached the hospital all the three injureds, namely, the deceased and his two sons had already left for Chandigarh. He further claimed to have visited the injureds at Chandigarh on 15.5.1999 and that even on that day none of the three injured was fit to make a statement. 53. If none of the three injureds, namely, the deceased and his two sons, was present in the hospital at Una when PW19 reached there, it is not known why PW19 moved an application before the Doctor seeking the opinion if the injured were fit to make a statement. Even otherwise, no such application alleged to have been made by PW19 has been proved in the present case. Nor evidence has been led to show that any opinion was sought by PW19 from the doctors at Chandigarh regarding the fitness of the three injured to make a statement. The only presumption is that PW19 is concealing the true facts with regard to the actual genesis of the case. 54. As against the version of PW19, it has been deposed by Hassain Din (PW16) one of the injured as under:— "My brother Bashir and Hussain Baksh took ue to Una hospital. We were medically examined in the hospital at Una. The Doctor of D.H. Una referred my father Rasila to PGI Chandigarh ae his condition was serious. My medical certificate is Ex.PD. I was also x-rayed. I accompanied my father Rasila to PGI Chandigarh. My father was operated upon at PGI and he died on 14.5.1999 at PGI, On 15.5.1999 Una police visited PGI and prepared the inquest report Ex. The Doctor of D.H. Una referred my father Rasila to PGI Chandigarh ae his condition was serious. My medical certificate is Ex.PD. I was also x-rayed. I accompanied my father Rasila to PGI Chandigarh. My father was operated upon at PGI and he died on 14.5.1999 at PGI, On 15.5.1999 Una police visited PGI and prepared the inquest report Ex. PK/3 and PK/4 which were thumb marked by me.” 55. During the course of cross-examination, PW16 has stated that he took his father Rasila to PGI from Una hospital at about 4/5 P.M. 56. A combined reading of the statements of PW16 and PW19 shows material contradictions therein. As per PW16 he and his father Rasila were in the hospital at Una till about 4 or 5 P.M. This belies the version put forth by PW19 that when he reached the hospital none of the three injured was present there since they had left for Chandigarh. PW19 has further gone to state that on 15.5.1999 when he visited Chandigarh Hospital, none of the three accused was found to be fit to make a statement. It is the admitted case of the prosecution and it has also come in the statement of PW16 that the deceased Rasila had died in the Chandigarh Hospital on 14.5.1999. This belies the version of PH19 that none of the three injured was fit to make a statement on 15.5.1999. 57. The inquest reports in respect of the deceased, admittedly, were prepared by PW19 at Chandigarh on 15.5.1999 and in the process of preparing such inquest reports PW19 had associated PW 16 as a witness. If PW16 was fit enough to be associated as a witness in the process of preparation of inquest reports, it cannot be said that he was not fit to make a statement as claimed and stated by PW 19. The statement of PW16 (Ex. DA) under Section 161, Code of Criminal Procedure, was recorded only on 16.5.1999. 58. PW17 Mian, one of the injured and son of the deceased, has a different story to tell. He never went to Chandigarh alongwith his father and PW16. The statement of PW16 (Ex. DA) under Section 161, Code of Criminal Procedure, was recorded only on 16.5.1999. 58. PW17 Mian, one of the injured and son of the deceased, has a different story to tell. He never went to Chandigarh alongwith his father and PW16. According to him, he had gone to Hoshiarpur to his sisters house from Una hospital where he stayed till 18.5.1999 and that he came to know about the death of his father only on 18.5.1999 when PW 15 Mohammad Bashir (his brother) came there to inform him. PW 17, in his cross examination has stated as under:— "I was alone in the room in the hospital when I was admitted and my father and brother were in another room. I was not given discharge certificate by any doctor to leave the hospital. Voluntarily stated I left the hospital of my own as I was alone and got frightened. It is incorrect that the case was registered against me and, therefore, I ran away from the hospital. In that room doctor and nurse visited me. Then I went to Hoshiarpur in the house of my sister at Camp. The name of my brother-in-law is Alam Deen in whose house I went. Alam Deen never came to know about the death of my father. I did not tell about the occurrence to my sister or brother-in-law. On 18.5.1999 Bashir came to Hoshiarpur and told me about the death of my father at 10 a.m. I reached Una police station at 1 p.m. I stayed in the police station for about two hours and after giving statement I went back. On that day I was accompanied by Bashir and none else came to the police station. I got it recorded in my statement that Sher Ali gave blow on the head of Rasila. It is incorrect that I gave the statement on the direction of Bashir in the police station. I never told the doctor attending me or any other person in the hospital regarding the occurrence. Doctor never asked me as to how the injuries were sustained. It is incorrect that Sher Ali was not present on the spot on 12.5.1999 and he has been falsely implicated and I am deposing falsely. 59. I never told the doctor attending me or any other person in the hospital regarding the occurrence. Doctor never asked me as to how the injuries were sustained. It is incorrect that Sher Ali was not present on the spot on 12.5.1999 and he has been falsely implicated and I am deposing falsely. 59. It cannot be believed that PW17, who went to his sisters house at Hoshiarpur in an injured condition, was not asked about the injuries sustained by him or that he never told his sister or brother-in-law about an occurrence in which besides him, his brother and father were injured and that his father being in a serious condition stood referred to PGI Chandigarh. 60. The presence of PW15 Mohammad Bashir (son of the deceased) and PW18 Hussain Baksh (a close relative of the deceased) is also not free from doubt. Though both these witnesses have claimed that they were present at the spot and had witnessed the occurrence in which the deceased and his two sons were given heatings, no attempt was made by them to intervene to save the deceased and/or his sons from the assault. They appeared to have remained as mute spectators, while PW18 has categorically admitted that he was sitting and witnessing the occurrence, PW15 is absolutely silent if he had made any attempt to intervene to save his father and brothers being assaulted. PW18 though has claimed that he had carried the deceased in an injured condition to the hospital, surprisingly enough he never narrated the occurrence to the doctor to inform him as to how the deceased sustained the injuries. During the course of cross-examination firstly he admitted that he was called from Janjowal on the day of occurrence but subsequently went on to state that he was present at the spot. It is admitted by PW18 that at the relevant time he was having his "Dera" (camp-site) at Janjowal in District Hoshiarpur (Punjab) about 50 Kms. away from the spot. He has admitted that for going to Chamba from Janjowal, the road is from Hoshiarpur. If on the relevant day he was proceeding to Chamba from his "Dera" his presence at the spot is not only doubtful but highly improbable. 61. The manner in which PW15 is shown to have conducted himself makes his presence at the spot doubtful. He has admitted that for going to Chamba from Janjowal, the road is from Hoshiarpur. If on the relevant day he was proceeding to Chamba from his "Dera" his presence at the spot is not only doubtful but highly improbable. 61. The manner in which PW15 is shown to have conducted himself makes his presence at the spot doubtful. Though he claims to have witnessed the occurrence and taken his deceased father in an injured condition and his two injured brothers to the hospital, insplte of the fact that his fathers condition was serious and had been referred to Chandigarh, he never cared to take his father to Chandigarh and instead quietly returned to the spot. His natural conduct would have been to accompany his father to Chandigarh and to attend upon him. No attempt was even made by him to inform the police or anyone else about the occurrence. He just kept quiet till the police is shown to have approached him at about 5 P.M. when his statement is alleged to have been recorded. 62. The facts and circumstances coming on record indicate as if the statement of PW15 under Section 154, Code of Criminal Procedure, came to be recorded only after due deliberations and consultation since a case against the complainants party stood registered and was being investigated by PW19 by that time. 63. Considering the entire evidence coming on record in its totality, the only irresistible conclusion is that the accused were exercising the right of private defence and while so doing they have not, in any manner, exceeded their such right. 64. Resultantly, for the foregoing reasons, the present appeal is allowed. The conviction and sentence imposed upon each of the four accused are set aside and they are acquitted of the offence for which they were convicted and sentenced. 65. The accused, who are in jail undergoing sentence, shall be released and set at liberty forthwith, if not required in any other case. The amount of fine, if already realised shall be refunded to the accused forthwith. Case property may be dealt with as per directions of the learned trial Court Appeal allowed.