JUDGMENT 1. - This appeal on behalf of accused-appellant Jagram S/o Shri Hari Narain is directed against the impugned judgment and order dated 02.07.1982 passed by the Additional District & Sessions Judge, Gangapur City in Sessions Case No. 22/1981, whereby appellant has been convicted and sentenced under Section 302 read with Section 34 IPC to imprisonment for life and a fine of Rs. 200/-, and in default of payment of fine to further undergo one month's additional rigorous imprisonment and under Section 447 IPC to three months' rigorous imprisonment. Both the sentences were ordered to run concurrently. 2. Briefly stated the facts of the case are that PW5 Lallu S/o Shree Narain lodged a written report on 19.11.1978 at Police Station Salempur, District Sawai Madhopur, wherein it was alleged that on a day prior to the filing of the report, the informant Lallu along with his brothers Tej Ram and Het Ram had gone to their field in the morning for tending their crops of wheat. While they were working in the field, at about 5.00 P.M. in the evening, Ram Khiladi, Malli and Jag Ram sons of Hari Narayan came armed with Lathi in their field: Khasra No. 902 and started up-rooting the plants of wheat. The informant raised an objection and asked the accused-persons not to do so. Then, Ram Khiladi, Malli and Jag Ram came towards them for giving a beating. Het Ram tried to run, but he was surrounded near the boundary wall of field Nos. 902 and 917 and was mercilessly beaten by the accused-persons. When Tej Ram tried to rescue Het Ram, then, Malli the accused, inflicted a blow by Lathi on the hand of Tej Ram. On raising a hue and cry by the informant, Bharoshi, Chothi and Laxmi Narayan Meena of the neighbouring fields came on the spot and, thereafter, the accused-persons ran away. As Het Ram was seriously injured, he was taken to a hospital at Mahaveerji, but the Doctor told them that the condition of Het Ram Was serious and as such he was advised to be taken to Karoli. It has been further stated that for want of proper transport for taking Het Ram to Karoli, they brought Hetram to Hindon. At Hindon, the Doctor gave an injection to Het Ram and advised him to be taken to Karoli. It has been further stated that for want of proper transport for taking Het Ram to Karoli, they brought Hetram to Hindon. At Hindon, the Doctor gave an injection to Het Ram and advised him to be taken to Karoli. While Het Ram was being taken to Karoli, he succumbed to the injuries in the way. 3. On the basis of above written report, the police registered chalked FIR No. 99 under section 302, 447, 323 read with Section 34 IPC and started investigation. During investigation, post-mortem of dead body was conducted. Injured Tejram and accused persons were also medically examined. After completion of investigation, the police filed a charge-sheet against co-accused persons namely, Ram Khilari and Malli Ram in the Court of Additional Munsif & Judicial Magistrate, First Class, Hindaun City on 28.02.1979. 4. Appellant Jagram remained absconded and proceedings were drawn against him under Section 82 and 83 Cr.P.C. Subsequently, the appellant was arrested on 01.04.1980 and as per his information under Section 27 of the Evidence Act, a lathi was recovered and after completion of investigation, challan was filed against the appellant under Section 302 IPC in the Court of Additional Munsif & Judicial Magistrate, Hindaun, who vide order dated 13.02.1981 committed the case for trial to the Court of District & Sessions Judge, Sawai Madhopur, Camp Gangapur City, who transferred the case for trial to the Court of Additional District & Sessions Judge, Gangapur City on 27.03.1981. 5. Learned trial Court framed charges against the appellant under Sections 447, 302 and 302/34 IPC. Accused denied the charges and claimed trial. In support of the case, the prosecution examined PW1 Shree Narain, PW2 Dwarika Prasad, PW3 Shyam Bihari, Medical Officer, PW4 Mansingh, PW5 Lallu, PW6 Tejram, PW7 Bharosi, PW8 Gauri Shankar, Sub Inspector, PW9 Bhoru and PW10 Ramkishore. Thereafter the statement of accused was recorded under Section 313 Cr.P.C., wherein he stated that prosecution case is false and he is innocent. He further stated that no lathi was recovered from him. He also stated that he was not absconding. In defence, the accused examined DW1 Dr. Surajlal Gupta and DW2 Ratiram and produced his own injury report Ex.D4-A. 6. Learned trial Court after considering the submissions of the parties and examining the record, convicted and sentenced the accused-appellant as mentioned above. Being aggrieved with the same, the present appeal has been preferred. 7. In defence, the accused examined DW1 Dr. Surajlal Gupta and DW2 Ratiram and produced his own injury report Ex.D4-A. 6. Learned trial Court after considering the submissions of the parties and examining the record, convicted and sentenced the accused-appellant as mentioned above. Being aggrieved with the same, the present appeal has been preferred. 7. Submission of learned counsel for appellant is that from Site Plan and statements of eye-witnesses, it is clear that complainant party was aggressor, the prosecution has failed to explain the injuries sustained by all the three accused persons, there was only one fatal injury on the person of deceased by blunt object and other injuries on the person of deceased were simple in nature. It is further contended that two co-accused persons namely, Ram Khilari and Malli Ram were convicted by the learned trial Court vide judgment dated 29.02.1980 and they preferred D.B. Criminal Appeal No. 109/1980 before this Court, which was allowed vide judgment dated 17.08.1984 and their conviction and sentence was set aside by this Court. It was specifically stated that all the documents in both the cases were similar and there was no change except some minor variance in oral testimony of prosecution witnesses, which does not affect the origin of the case that complainant party was an aggressor. This Court while deciding the appeal of co-accused persons namely, Ram Khilari and Malli Ram, observed that complainant party was aggressor and granted right of private defence of property and person. The present case is fully covered by the aforesaid judgment passed by this Court in the case of co-accused persons, therefore, appeal of present appellant be allowed and his conviction and sentence passed by the trial Court be set aside. 8. Learned Public Prosecutor opposed the appeal but fairly and frankly admitted that this Court vide judgment dated 17.08.1984 allowed the appeal of co-accused Ram Khilari and Malli Ram by giving them benefit of right of private defence of property and person and observed that complainant party was an aggressor. 9. Learned counsel for both the parties have not stated that the above judgment of the Division Bench dated 17.08.1984 was challenged before the Hon'ble Apex Court. 10. 9. Learned counsel for both the parties have not stated that the above judgment of the Division Bench dated 17.08.1984 was challenged before the Hon'ble Apex Court. 10. We have considered the submissions of learned counsel for the parties and minutely scanned the impugned judgment and record of the trial Court and also the judgment of this Court dated 17.08.1984 passed in D.B. Criminal Appeal No. 109/80. 11. The present case arose on the basis of written report Ex.P1 dated 19.11.1978 lodged by Lallu (PW5) at Police Station Salempur, District Sawai Madhopur. Chalked FIR No. 99 was registered under Sections 302, 447, 323 and 34 IPC. The autopsy was conducted by PW3 Dr. Shyam Bihari, who also proved Post-mortem Report Ex.P5. The following external and internal injuries were found on the person of deceased:- "On external examination: (1) Lacerated wound 2-½" x ½" x " on right side of scalp one inch above mastoid process-caused by hard blunt object. (2) Contusion 5" x 1" on right lateral side of back vertical just below auxilla. (3) Abrasion 1-½" x 1/10" on right side of chest one inch above nipple. (4) Contusion 2" x 1" on right shoulder superior aspect. (5) Abrasion 1" x -½" on right shoulder posterior aspect. All injuries were antemortem. All these injuries were caused by hard blunt object. On internal examination: (1) Brain membrains over right parital lower brain torn and congested Right parital lobe was lacerated on its lower posterior part with punctait haemorrhages on its surface. (2) Liver, spleen, kidneys were found congested. (3) There was depressed fracture of right parital bone posterior part." 12. In the opinion of Dr. Shyam Bihari, the cause of death was shock and laceration of brain with intra cerebral haemorrhage caused by external injury No.1. Injured Tejram was also medically examined and one contusion on anterior aspect of left wrist joint was found on his person. 13. All the three accused persons Jagram, Malli Ram and Ram Khilari were also examined on 18.11.1978 itself and following injuries were found on their persons:- JAG RAM: "1. Vertical lacerated wound 7cm. X 0.5cm. X depth upto bone on upper surface of head in front of the tuft. Simple Blunt. 2. Oblique lacerated wound 6cm x 0.5cm x depth upto bone on back of the head near tuft-Simple Blunt. 3. Red contusion with swelling 5cm. X 4cm on right mastoid region-Simple Blunt. Vertical lacerated wound 7cm. X 0.5cm. X depth upto bone on upper surface of head in front of the tuft. Simple Blunt. 2. Oblique lacerated wound 6cm x 0.5cm x depth upto bone on back of the head near tuft-Simple Blunt. 3. Red contusion with swelling 5cm. X 4cm on right mastoid region-Simple Blunt. 4. Carved lacerated wound 2.5cm x 0.25cm x skin deep on right thumb in front of nail margin-Simple Blunt. 5. Abrasion 2cm x 1cm on outer side of left hand margin-Simple Blunt. 6. Double line red vertical contusion 15 x 1.5cm on back of right side of Chest-Simple Blunt." MALLI RAM: 1. Transverse lacerated wound 4.5cm. X 1cm. X depth upto bone on left side of the head upper surface in front-Simple Blunt. 2. Vertical lacerated wound 4cm x 1cm x depth upto bone on back of the head left side Simple Blunt. 3. Vertical lacerated wound 3cm x 1cm x depth upto bone on right side of the head on parietal region-Simple Blunt 4. Oblique red double line contusion 14cm x 2.5cm on lower part of back of chest left side-Simple Blunt. 5. Oblique red D.L. Contusion 20cm. X 2.5cm. on back of chest lower part Simple Blunt. 6. Oblique red D.L. contusion 14cm. x 2.5cm. below injury No. 5-Simple Blunt 7. Red contusion oblique 12cm. x 2cm. on outer side lower part left leg-Simple Blunt." RAM KHILADI: "1. Transverse lacerated wound 3cm. x 1cm. x depth upto bone on right side of head upper surface 5cm. in front of thrift. Simple Blunt. 2. Traverse lacerated wound 2.5cm. x 1cm. on left Iliac erest region-Simple Blunt 3. Swelling back of Rt arm with abrasion 1cm x 1.5cm. Simple Blunt. 4. Swelling 7cm. x 3cm. outer side middle of left leg. Simple Blunt. 5. Red contusion with abrasion 4cm. x 2cm. on left side of chest on side-Simple Blunt." 14. We have considered the oral and documentary evidence produced in the case by both the parties and after their close scrutiny, we find that so far as documentary evidence is concerned, the same is similar which was produced by the parties in the case of co-accused Ram Khilari and Malli Ram. So far as oral testimony of prosecution witnesses are concerned, there is slight variance but gist of their testimony is one and same. So far as oral testimony of prosecution witnesses are concerned, there is slight variance but gist of their testimony is one and same. As per prosecution evidence, the author of head injury on the person of deceased, which proved to be fatal, was Malli Ram by lathis, which is usually kept by villagers. So far as present appellant is concerned, the injured eye-witness PW6 Tejram has stated that he also inflicted injury by lathi on the person of deceased. As per medical evidence, other injuries on the person of deceased were simple in nature. The trial Court has convicted the appellant under Section 302 IPC with the aid of Section 34 IPC only. 15. This Court while deciding D.B. Criminal Appeal No. 109/1980, preferred by co-accused Ram Khilari and Malli Ram, vide judgment dated 17.08.1984 came to a conclusion that complainant party was an aggressor and in that case if the injuries are inflicted on both the parties, the case of exercise of right of private defence of property and person is clearly made out by accused persons. This Court allowed the appeal of both the co-accused persons and set aside the order of their conviction and sentence passed by the trial Court. The relevant portion of judgment is reproduced as under:- "We have given our careful consideration to the arguments advanced by the learned counsel for the defence and the learned Public Prosecutor and have thoroughly perused the record. It is, admittedly, proved on record that the accused-appellants are the sons of Hari Narayan, while Tej Ram and Het Ram are the sons of Srinarayan. Srinarayan and Hari Narayan were real brothers. Thus, the parties are closely related to each other and first-cousin. Their fields are also adjoining to each other and both have tube-wells in their fields for irrigation. The incident is alleged to have taken place at 5.00 P.M. on November 18, 1978. Both the parties, along with their family-members, were tending their crops in the usual course. The incident took place all of a sudden when, according to the prosecution, the accused-persons had entered the field of complainant party and had up-rooted their crops of wheat. The injuries on the body of Jag Ram, Malli and Ram Khiladi were examined by Dr. Both the parties, along with their family-members, were tending their crops in the usual course. The incident took place all of a sudden when, according to the prosecution, the accused-persons had entered the field of complainant party and had up-rooted their crops of wheat. The injuries on the body of Jag Ram, Malli and Ram Khiladi were examined by Dr. Suraj Lal Gupta, Medical Jurist, General Hospital, Karoli on November 18, 1978 and 18 injuries in all, have been found on the body of these three persons. The injuries are lacerated wounds and are also on vital parts of the body. The injuries found on the body of Malli, the accused, were of serious nature and he was kept under observation in the hospital for one day. The injuries numbering 18, go unexplained from the side of the prosecution. There are five injuries found on the body of Het Ram, out of which, only one is found to be fatal and the other injuries are of simple nature. The injury found on Tej Ram from the side of the complainant, is a simple contusion and is of superficial nature. D.W. 3 Dr. Suraj Lal Gupta has also stated that the injuries as mentioned in Exs. P1 and P2(which are injuries found on Het Ram and Tej Ram) and the injuries shown in Exs. D1 to D3, can be caused in one incident. Such large number of injuries amounting to 18 on the body of the accused-persons are proved from the statement of D.W. 3 Dr. Suraj Lal Gupta, and we are fully convinced that the accused-persons had received these injuries in the alleged incident. The prosecution witnesses, in this regard, are totally silent and this clearly goes to establish that the prosecution is hiding the truth. The prosecution story that the accused-persons had entered their field: Khasra No. 902, and had up-rooted their wheat plants, is also unbelievable in view of the clear statement of P.W. 11 Gauri Shankar, S.H.O. in-charge of Police Station Salempur. He has prepared the site-plan(Ex.P3) and according to this plan, the place of incident has been shown at place 'E' in Field No. 3. According to his statement, there were no marks of blood found in Field No. 3 and there was no crop at all in the said field. He has prepared the site-plan(Ex.P3) and according to this plan, the place of incident has been shown at place 'E' in Field No. 3. According to his statement, there were no marks of blood found in Field No. 3 and there was no crop at all in the said field. He further stated that the crop was only standing in Field No. 4, as shown in the site-plan(Ex.P3), but, in that field, there were no signs of any plants being up-rooted or cutting of any crop. Thus, the place where the incident occurred and the cause of the incident, are not proved, as stated by the eye-witnesses of the prosecution. On the other hand, the explanation given by the accused-persons and the evidence led by them in defence, gives a plausible explanation of their stand that the incident took place on account of the reason that the complainant party had damaged the water-channel going in the field of the accused-persons. If that be so, the complainant-party was an aggressor, and in that case, if the injuries were inflicted on both the parties, the case of exercise of right of private defence of property and person, is clearly made out by the accused-persons. Looking to the nature of injuries found on the body of Het Ram, which were only five in number and out of which only one was proved to be fatal and which was caused by Lathi, which is a weapon usually kept by the agriculturists in the ordinary course, it cannot be said that the accused-persons had exceeded their right of private defence or caused more harm than was necessary in the facts and circumstances of the case. In the result, we allow this appeal, set aside the judgment of learned Additional Sessions Judge and acquit both the accused-appellants for all the charges levelled against them." 16. From the analysis of the oral and documentary evidence of the present case as referred and discussed above, no other view is possible, than to a view taken by earlier Division Bench of this Court vide judgment dated 17.08.1984, as referred above, and we are also of the same view. Therefore, for the same reasons, which are mentioned in the judgment dated 17.08.1984 as referred and quoted above, the appeal of appellant also deserves to be allowed being on same footings. 17. Consequently, the appeal of appellant Jagram is allowed. Therefore, for the same reasons, which are mentioned in the judgment dated 17.08.1984 as referred and quoted above, the appeal of appellant also deserves to be allowed being on same footings. 17. Consequently, the appeal of appellant Jagram is allowed. The impugned judgment and order passed by the trial Court dated 02.07.1982 is set aside and appellant Jagram is acquitted of the charges levelled against him. He is on bail. He need not surrender. His bail bonds stand discharged.Appeal allowed. *******