JUDGMENT 1. - Death of Rameshwar and Prabhat was woven into the very fabric of bitterness and anger. Neither the complainant party nor the accused did gain anything from the wrangle. On one hand two members of complainant party lost their lives and on the other hand liberty of accused was curtailed and they were lodged in the jail. Gopal, Jagdish, Mahesh, Teeja, Gokali and Patasi Devi, the appellants herein, were put to trial for the murder of Rameshwar and Prabhat before the learned Additional Sessions Judge Shahpura District Jaipur, who vide judgment dated 18.4.2001 convicted and sentenced them as under: Teeja: Under Section 302 I.P.C.: To suffer imprisonment for life and fine Rs. 1,000, in default to further suffer six months simple imprisonment. Gopal, Jagdish and Mahesh: Under Section 302/34 I.P.C.: Each to suffer imprisonment for life and fine Rs. 1,000, in default to further suffer six months simple imprisonment.. Gokali and Patasi Devi: Under Section 323 I.P.C.: Sentenced to the period already undergone by them. 2. As per the prosecution story on 16.7.2000 at 8.20 A.M. Bhagwan Sahai and Bodu Ram in injured condition reached to the Police Station, Manoharpur and orally informed that Rameshwar and Prabhat were beaten up by Gopal, Jagdish, Mahesh, Kumari Teeja, Smt. Patasi Devi, Gokali and Sita. Later on at 9.45 A.M. Badri (PW-10) submitted written report (Ex.P-76) of the incident wherein it was stated that around 7.30 A.M. while he and his father Prabhat were in the field and Rameshwar, Bhagwan Sahai and Bodu Ram were going towards well of Padmawali, Gopal, Jagdish, Mahesh, Patasi, Teeja, Gokali, Sita belaboured Rameshwar on the way. They inflicted blows with lathi and axe on the person of Rameshwar and killed him. When Bhagwan Sahai and Bodu Ram tried to intervene they were also beaten up. Thereafter they followed his father Prabhat and murdered him. On the aforesaid report a case under Sections 147, 148, 149, 302 and 323 I.P.C. was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Shahpura District Jaipur. Charges under Sections 147, 148, 302/149 and 323/149 I.P.C. were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 25 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. Charges under Sections 147, 148, 302/149 and 323/149 I.P.C. were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 25 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. Accused Gokali, Teeja and Patasi raised the plea of alibi. Four witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. We have given our anxious consideration to the rival submissions and with the assistance of the learned counsel we have gone through the evidence on record. 4. Death of deceased Rameshwar and Prabhat was indisputably homicidal in nature. As per postmortem report (Ex.I'-84) Rameshwar received following ante mortem injuries: (1) Incised wound 15 cm x 5 cm x bone deep on back of neck. (2) Incised wound over left scapular region of size 18 cm x 5 cm x bone deep. (3) Incised wound 4 cm x 2 cm x bone deep 4 cm below injury No. 2. (4) Bruise 4 cm x 2 cm Rt. knee. According to Dr. Shiv Kumar Tanwar (PW-25) the cause of death was coma because of cutting of spinal cord as well as excessive hemorrhage. Vide post mortem report (Ex.P-85) Prabhat received following ante mortem injuries: (1) Bruise with swelling 6 cm x 3 cm x Rt. side of skull and forehead. (2) Bruise 8 cm x 4 cm Rt. shoulder. (3) Bruise 10 cm x 4 cm left side of chest. (4) Bruise 10 cm x 3 cm Rt. side of chest. (5) Lacerated wound 4 cm x 2 cm x soft tissue deep anterior side of neck. According to Dr. Shiv Kumar Tanwar (PW-25) the cause of death was coma because of injuries of head, lung and fracture of ribs. Bhagwan Sahai .vide injury report (Ex.P-86) received following injuries: (1) Lacerated wound 3" x 1/2" x 1/2' on Lt. parieto temporal region 3" from mid line. (2) Lacerated wound 4" x 1" x bone deep parietal region It. 1/2 cm from mid line. (3) Lacerated wound 4" x 1/2 x bone deep Rt. parietal region 2 cm from mid line. (4) C/o pain all over body, Bodu Rana vide injury report (Ex.P-87) received injuries as under: (1) lacerated wound 3" x 1/2" x 1/2" on Rt. parietal region 3" from mid line. 1/2 cm from mid line. (3) Lacerated wound 4" x 1/2 x bone deep Rt. parietal region 2 cm from mid line. (4) C/o pain all over body, Bodu Rana vide injury report (Ex.P-87) received injuries as under: (1) lacerated wound 3" x 1/2" x 1/2" on Rt. parietal region 3" from mid line. (2) Swelling Lt. forearm 2" x 1" near the elbow joint on palmer surface. (3) Swelling Rt. forearm 3" x 1". (1) Abrasion 1 cm x 1 cm dorsal aspect of Lt. index finger. (5) Abrasion 1 cm x 1 cm Palmer aspect of base of middle finger. 5. The prosecution case is founded on the testimony of Bodu (PW-7), Bhagwan Sahai (PW-8) and Badri (PW-10). Bodu (PW-7) deposed that on the day of incident around 7.30 A.M. he along with Bhagwan Sahai and Rameshwar were going to work at the well. When he reached near the field of Gopal, he found Gopal, Jagdish, Mahesh, Patasi, Teeja, Gokali plucking vegetable in the field of Gopal. Teeja, who was armed with axe inflicted axe-blow on the neck of Rarneshwar. Bhagwan Sahai was beaten up by Gopal and I' atasi. Gopal, Mahesh and Jagdish ran towards Prabhat, who was working at a distance of 10 steps. 'they belaboured Prabhat near the house of Durga and inflicted injuries on his person and killed him. Testimony of Bodu gets corroboration from the evidence of Bhagwan Sahai (PW-8) and Badri (PW-10). Naresh Kumar (PW-24) who conducted investigation of the case, deposed in the cross-examination that during the course of investigation he came to know that accused Jagdish gave the contract of construction of his house to Santosh Contractor in consideration of Rs. 33,000/-The Contractor could not complete the construction work and he had to return a sum of Rs. 23,000/- which he gave to Rameshwar in front of five persons of the village. When Jagdish demanded money from Rameshwar, he refused to return the money and altercations ensued. 6. Accused-appellant Gopal got himself examined as DW-1. In his deposition Gopal stated that one day prior to the day of occurrence when Jagdish had gone to demand money from Rameshwar, altercations between Jagdish, Rameshwar, Bodu and Bhagwan Sahai ensued. When Jagdish demanded money from Rameshwar, he refused to return the money and altercations ensued. 6. Accused-appellant Gopal got himself examined as DW-1. In his deposition Gopal stated that one day prior to the day of occurrence when Jagdish had gone to demand money from Rameshwar, altercations between Jagdish, Rameshwar, Bodu and Bhagwan Sahai ensued. On the date of incident, when he along with his two sons Mahesh and Jagdisli had been plucking 'Tindsi' (vegetable) in the field, Rameshwar, Bhagwan Sahai, Bodu, Badri, Prabhat, Ganpati and Lali came from the village side and Rameshwar started hurling abuses. Bodu had axe whereas others were armed with lathis. All of them made assault on him and caused injuries on his person. He became unconscious and when he regained consciousness he found Rameshwar lying dead. Aani (DW-2), wife of Gopal, accused Mahesh (DW-5) corroborated the statement of Gopal. Dr. Anil I)alela (DW-3) deposed that on 16.7.2000 he was posted as Medical Officer at Manoharpur. On that day he examined the injuries sustained by Gopal and Mahesh. Gopal vide injury report (Ex.D-5) received as many as seven injuries including two injuries on head. Injuries received by Mahesh were incorporated in injury report (Ex.D-6) according to which four injuries were received by him. 7. On a careful scrutiny of the evidence adduced at the trial we find the fact situation of the case thus: (i) In the Daily Rojnamcha (Ex.P-95) name of Teeja appears to have been added by over writing. (ii) Injured Bhagwan Sahai and Bodu Ram although reached at the police station at 8.20 A.M. on 16.7.2000, their parcha bayan was not recorded and F.I.R. was not lodged. (iii) As per site plan (Ex.P-1) dead body of Rameshwar was found lying in the field of the accused. Dead body of Prabhat was however lying in front of his house but incident with him occurred in the field of Durga. (iv) Accused appellants Gopal an Mahesh had sustained injuries in the same incident and their injuries were not explained by the prosecution. (v) A look at the F.I.R. reveals that it was never placed before the Magistrate under Section 157(1) Cr.P.C. 8. Mr. Biri Singh learned counsel for the appellants made following submissions: (a) From the site plan it is evident that members of complainant party were the aggressor and they came to the field of accused and gave beating to them. (v) A look at the F.I.R. reveals that it was never placed before the Magistrate under Section 157(1) Cr.P.C. 8. Mr. Biri Singh learned counsel for the appellants made following submissions: (a) From the site plan it is evident that members of complainant party were the aggressor and they came to the field of accused and gave beating to them. (b) Since the injuries received by accused Gopal and Mahesh were not explained, whole prosecution story is shrouded in mystry. (c) P.I.R. (Ex.P-76) is hit by Section 162 Cr.P.C. The investigation had already been commenced before registering the F.I.R. There was no endorsement on the report that it was produced before the Magistrate. (d) The origin and genesis of the occurrence has been withheld. (e) Since the complainant party was the aggressor and attacked on the accused and caused injuries to Gopal and Mahesh, the accused had right of private defence. (f) Accused Teeja whose age was between 18 to 20 years on the date of incident was falsely implicated in the case. Although injury on the neck of Rameshwar has been attributed to her, clothes stained with blood had not been seized from her. 9. Learned counsel in support of the submissions placed reliance on Jamesh Martin v. State-of Kerala, (2004) 2 SCC 203 , Buta Singh v. State of Punjab, (1991) 2 SCC 612 , Makzvana Takhat Singh v. State of Gujarat, (1992) Suppl. 2 SCC 564 , State of Bihar v. Nathu Pandey, AIR 1970 SC 27 , Golla Jalla Reddy v. State of A.P., (1996) 8 SCC 565 and Sunil Kumar v. State of M.P., 1997 Cr.L.J. 1183. 10. On the other hand learned Public Prosecutor supported the findings of learned trial Court and canvassed that the accused have been rightly convicted and sentenced. 11. Following principles may be deduced from the case law cited before us: (i) The right of self defence is a very valuable right, serving a social purpose and should not be construed narrowly. (ii). While considering whether the right of private defence is available to the accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. The entire incident must be examined with care and viewed in its proper setting. (ii). While considering whether the right of private defence is available to the accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. The entire incident must be examined with care and viewed in its proper setting. 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 relevant factors to be considered, while determining whether right of private defence was available or not. (iii) 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. (iv) Burden to establish the plea of right of private defence stands discharged by showing preponderance of probabilities by the accused in favour of his plea either by himself adducing positive evidence or by reference to circumstances transpiring from the prosecution evidence itself. Court can consider such plea even if the accused has not taken it, if the same is available on the record. 12. Bearing these principles in mind when we look at the facts of the case on hand we find that deceased Rameshwar, Bhagwan Sahai and Bodu Ram had gone to the field of the accused appellants and launched an attack. Appellants Gopal and Mahesh fought to repel the attack and in the course of incident both sides sustained injuries as a result of which Rameshwar died. Since the appellants Gopal and Mahesh were clearly defending themselves, they had right of private defence. This version surfaces as a more probable on in the facts and circumstances of the case. 13. We also find that provisions of Section 157(1) Cr.P.C., have not been complied with as the copy of F.I.R. was not sent to the Magistrate. The provisions contained in Section 157(1) act as a guard against the scope of allegations of any subsequent manipulation in the F.I.R. by the prosecution and in the narration of the incident. 13. We also find that provisions of Section 157(1) Cr.P.C., have not been complied with as the copy of F.I.R. was not sent to the Magistrate. The provisions contained in Section 157(1) act as a guard against the scope of allegations of any subsequent manipulation in the F.I.R. by the prosecution and in the narration of the incident. When the copy of F.I.R. is dispatched forthwith to the Magistrate concerned there remains lesser possibility of substituting or extracting the F.I.R. Therefore, in the instant case prosecution version comes under heavy shadow of doubt for having failed to prove compliance of Section 157(1). In the instant case possibility of over implication of appellants Teeja and Jagdish cannot be ruled out since name of Teeja, appears to have been incorporated in Daily Rojnamcha (Ex.P-95) afterwards. Jagdish and Teeja had not sustained any injury in the incident. Therefore, it seems that Teeja and Jagdish being the wife and son of appellant Gopal have been implicated on account of overzealousness. In our opinion their presence at the time of occurrence is not established beyond reasonable doubt. 14. That takes us to another meaningful question, whether right of private defence was still available to the appellants when they chased deceased Prabhat, to the field of Durga and inflicted lathi blows on his person. From the testimony of Bodu (PW-7) Bhagwan Sahai (PW-8) and Badri (PW-10) it is established that Prabhat was not present at that place where Rameshwar was belaboured. After inflicting injuries on the person of Rameshwar, appellants ran towards Prabhat, who was 10 steps away. Seeing the appellants coming, Prabhat started running but, he was chased and pushed down near the house of Durga and the injuries were inflicted on his person by the appellants. Having separated grain from the chaff in the testimony of Bodu, Bhagwan Sahai and Badri, we find it consisk t qua the allegations against appellants Gopal and Mahesh. The fact situation of the instant case shows that in the guise of self-preservation, even after the reasonable apprehension had disappeared, plea of right of private defence was not available to Gopal and Mahesh. The fact situation of the instant case shows that in the guise of self-preservation, even after the reasonable apprehension had disappeared, plea of right of private defence was not available to Gopal and Mahesh. In our opinion, Gopal and Mahesh had shared common intention in chasing and inflicting injuries on the person of Prabhat and they have been rightly convicted and sentenced under Section 302/34 I.P.C. The prosecution however has failed to establish charges under Section 302 I.P.C. against appellant Teeja, 302/34 I.P.C. against Jagdish and Hinder Section 323 I.P.C. against Gokali and Patasi Devi beyond reasonable doubt. 15. For these reasons we dispose of the instant appeal in the following terms: (i) We find no merit in the appeal of appellants Gopal and Mahesh and the same accordingly stands dismissed. The conviction and sentence awarded to them are maintained. (ii) We allow the appeal of appellants Teeja, Jagdish, Gokali and Patasi Devi and acquit them of the charges under Sections 302, 302/34 and 323 I.P.C. Appellants Teeja, Gokali and Patasi Devi are on bail, they need not ,surrender and their bail bonds stand discharged. Appellants Jagdish, who is in jail, shall be set at liberty forthwith if not required to be detained in any other case. (iii) Impugned judgment of learned trial Judge stands modified as indicated above. ` Appeal partly allowed. *******