JUDGMENT 1. - Aggrieved by the judgment dated 15.3.2007, the appellant, Jagdish, has filed two appeals before this court, one a Jail Appeal, namely D.B. Criminal Jail Appeal No.746/14, and another a regular appeal, namely D.B. Criminal Appeal No.1612/07. Meanwhile, aggrieved by the same judgment, the State of Rajasthan has filed D.B. Criminal Appeal No.1826/07. By judgment dated 15.3.2007, the learned Additional Sessions Judge (Fast Track), Jhalawar, had convicted the appellant, Jagdish, for offences under Sections 302, 324 IPC and for offence under Section 4/25 Arms Act. By an order of even date, the learned Judge had sentenced him as under:- U/2. 302 IPC: Life imprisonment, imposed him with a fine of Rs. 2000/- and directed him to undergo a further sentence of three months of simple imprisonment in default thereof. U/s. 324 IPC: Two years of rigorous imprisonment, imposed him with a fine of Rs. 500/- and directed him to undergo a further sentence of fifteen days of simple imprisonment in default thereof. U/s. 4/25, Arms Act: One year rigorous imprisonment, imposed him with a fine of Rs. 200/- and directed him to undergo a further sentence of seven days of simple imprisonment in default thereof. 2. On the other hand, the learned Judge has acquitted the accused, Pooranmal, of offences under Sections 302 and 307 IPC. Therefore, while Jagdish has filed his two appeals, the State of Rajasthan has filed an appeal against the acquittal of Pooranmal. Since these appeals arise out of the same impugned judgment, they are being decided by this common judgment. 3. Succinctly, the case of the prosecution is that on 26.3.2006, Surendra Kumar (P.W.20) recorded a Parcha Bayan (Ex.P.31) of Rameshwar (P.W.4) at the S.R.G. Hospital at Jhalawar. The parcha Bayan when translated into English reads as under:- "The incident has happened today on 26.3.2006 at :00 AM. I, my grand-mother, Shanti Bai, and my grand-father, Manak Chand, had gone to the temple, built by Nagar Seth, for worshiping. At that time, Jagdish S/o. Pooranmal, by caste Mali, r/o. Nagar Seth Ji Ka Kund, Near Tempo Station, Jhalarapatan, came and attacked me with a knife. I tried to protect myself. In this process, I was injured in my left arm. My grand-mother, Shanti Bai, rushed to my rescue. Jagdish struck her with a knife in her stomach. My grand-mother fell down then and there. Jagdishs father Pooranmal had also come to assault us. I tried to protect myself. In this process, I was injured in my left arm. My grand-mother, Shanti Bai, rushed to my rescue. Jagdish struck her with a knife in her stomach. My grand-mother fell down then and there. Jagdishs father Pooranmal had also come to assault us. Radha Bai and my grand-father, Manak Chand, tried to save us. But Jagdish pushed them and ran away. My grand-father, Manak Chand, Radha Bai, and other persons brought us to the Government Hospital. From there, we were referred to the Jhalawar hospital. But my grand-mother has expired due to the injuries caused by Jagdish." 4. On the basis of this Parcha Bayan (Ex.P.31), the police chalked out a formal FIR (Ex.P.47), namely FIR No.95/06, for offences under Sections 307, 302 and 34 IPC and started the investigation. After completing the investigation, the police submitted a charge-sheet against Jagdish and Pooranmal for offences under Section 302, 307/34 IPC and for offence under Section 4/25, Arms Act. On 28.4.2006, the learned Magistrate committed the case to the Sessions Court, Jhalawar. On 8.6.2006, the trial was transferred to the learned Judge. By order dated 14.6.2006, the learned Judge framed charges against Jagdish for offences under Sections 302 and 307 IPC, and for offence under Section 4/25, Arms Act, and against Pooranmal for offences under Sections 302 and 307 IPC. In order to establish its case, the prosecution examined twenty-three witnesses, and submitted forty-seven documents. In turn, the defense examined a single witness and submitted four documents. After completing the trial, the learned Judge convicted and sentenced the appellant, Jagdish, as aforementioned, but acquitted the accused, Pooranmal. Hence, these appeals before this court. 5. The appeals filed by Jagdish and the appeal filed by the State of Rajasthan shall be decided separately, but within this judgments. D.B. Criminal Appeal No.1612/07, Jagdish v. State of Rajasthan & D.B. Criminal Jail Appeal No.746/14, Jagdish v. State of Rajasthan : 6. Mr. A.S. Narang, the learned counsel for the appellant, Jagdish, has raised the following contentions before this court: firstly, the prosecution has not come with clean hands and has suppressed the genesis of the case from the court. For, although two independent prosecution witnesses, namely Radha Bai (P.W. ) and Suresh Chand (P.W.12) do claim that Pooranmal was injured, but the prosecution has failed to explain the injuries suffered by Pooranmal on his head. 7. For, although two independent prosecution witnesses, namely Radha Bai (P.W. ) and Suresh Chand (P.W.12) do claim that Pooranmal was injured, but the prosecution has failed to explain the injuries suffered by Pooranmal on his head. 7. Secondly, from day one the accused have been pleading that the temple was built by the forefathers of Manak Chand, the family of the accused was staying within the temple premises and were under the employment of Manak Chand (P.W.11). But certain dispute had erupted between Manak Chand and Pooranmal as the former wanted to sell off the land which belonged to him, but upon which Pooranmal was carrying out agricultural activities. Due to the dispute, Manak Chand (P.W.11) wanted to throw Pooranmal and his family out of the temple premises. On the fateful day, the complainant party assaulted Pooranmal. When he was injured and he fell, and became unconscious, in order to protect his father, Jagdish assaulted Rameshwar (P.W.4) and the deceased, Shanti Bai. Even in their statement given under Section 313 Cr.P.C., both the accused persons had pleaded the right of private defense. However, the learned Judge has not granted the benefit of right of private defense, and has convicted Jagdish of offences under Sections 302 and 324 IPC. 8. Thirdly, in the alternative, the Jagdishs intention was not to kill Shanti Bai as she had merely intervened according to the prosecution witnesses. Therefore, only knowledge can be attributed to him. Hence, the case would not be covered by Section 302 IPC, but would fall under Section 304 Pt. II IPC. 9. On the other hand, Mr. N.S. Dhakar, the learned Public Prosecutor, has pleaded that according to the independent witnesses, Smt. Radha Bai (P.W. ) and Suresh Chand (P.W.12), Jagdish had come armed with knife and had first struck Rameshwar (P.W.4). When his grand-mother, Shanti Bai, intervened, he struck her twice in the stomach. Therefore, his intention was to kill Shanti Bai. In the alternative, if the right of private defense is to be believed, then clearly Jagdish has overstepped the said right. Therefore, at worst, the case would be covered by Section 304 Pt. I IPC, but certainly not by Section 304 Pt. II IPC. 10. Heard the learned counsel for the parties, perused the impugned judgment and examined the record. 11. The homicidal death of Shanti Bai is not in question before this court. Therefore, at worst, the case would be covered by Section 304 Pt. I IPC, but certainly not by Section 304 Pt. II IPC. 10. Heard the learned counsel for the parties, perused the impugned judgment and examined the record. 11. The homicidal death of Shanti Bai is not in question before this court. But it is the nature of the crime committed by Jagdish which is the crucial issue. Has Jagdish committed the murder of Shanti Bai, or has he exceeded the right of private defense? This is the fundamental issue before this court. In order to answer this issue, it is essential to first deal with the evidence produced by the prosecution and by the defense. 12. Suresh Chand (P.W.12) is an independent witness. In his examination-in-chief he states that "he is the Pujari (the priest) of a temple constructed by Manak Chand, the Nagar Seth. Both my family and the family of Pooranmal stay within the temple complex. On 26.3.2006, around :00 AM, Seth Manak Chand, Shanti Bai and Rameshwar had come to the temple for the purpose of worshiping. Suddenly, hot words were exchanged between Manak Chand on the one side, and Jagdish and Pooranmal on the other side. Then Jagdish brought out a knife. He firstly struck Rameshwar on his hand with a knife. Shanti Bai intervened. Jagdish struck her on the stomach. He struck her twice on the stomach. I and Manak Chand also tried to intervene, but Jagdish ran away. My wife Radha Bai was also there. My wife brought Rameshwar to the hospital; the police brought Shanti Bai to the hospital. From Patan Hospital, we took them to the Jhalawar Hospital. Subsequently, Shanti Bai had expired." 13. In his cross-examination he admits that "the moment Manak Chand Ji entered the temple, hot words were exchanged between him and Jagdish. The hot words were exchanged outside the temple. But the dispute continued within the temple also." According to this witness "the moment he came out of his room, he noticed that Pooranmal had suffered an injury on his head and was bleeding". The hot words were exchanged outside the temple. But the dispute continued within the temple also." According to this witness "the moment he came out of his room, he noticed that Pooranmal had suffered an injury on his head and was bleeding". In his cross-examination he has denied the suggestion and has claimed that "it is wrong to say that Jagdish was asking as to why his father had been assaulted." He also claimed that "it is also wrong to say that the Seth was telling them to vacate the land otherwise he would get the entire family killed". He does admit that "once or twice Seth Sahab had told Pooranmal to vacate the place". 14. Similarly, Radha Bai (P.W. ) admits in her cross-examination that "for the last forty-fifty years, the family of the accused persons was living within the temple premises". She also states that "they have been tilling the land which belonged to the temple for the last forty to fifty years." Although she denies the fact and claims ignorance of Pooranmals injuries, but she does admit that "she did see Pooranmal bleeding from the head at the time of the incident". 15. According to Dr. Anil Pratap Sharma (D.W.1), he was the medical jurist at the C.M.C. Hospital, Jhalarapatan. On a request made by the police, he examined Pooranmal. In the injury report (Ex.D.4), he has noticed that Pooranmal had a lacerated wound on his head 2 x 1/4 x 1/4 inch on the fronto parietal part of the head. According to him, the injury was simple in nature and was caused within two to three hours prior to the examination of the injured. According to him, he had examined the injured as 12:15 PM. He proves Exhibit-D.4. In his cross-examination, he denied the fact that this injury could have been caused by falling. According to him, there would have been other injuries on his body if a person had fallen down. 16. Interestingly, Rameshwar (P.W.4), Manak Chand (P.W.11) both denied the existence of this injury on Pooranmals head. Manak Chand (P.W.11) does admit in his examination-in-chief that there is a dispute between the accused persons and them about land. According to him, the land in dispute is located right next to the temple which is in the name of his father. The land was tilled and looked after by Pooranmal and Jagdish. Manak Chand (P.W.11) does admit in his examination-in-chief that there is a dispute between the accused persons and them about land. According to him, the land in dispute is located right next to the temple which is in the name of his father. The land was tilled and looked after by Pooranmal and Jagdish. This witness wanted to sell out this land to another party. But the accused persons had raised objections. It is because of this dispute that Jagdish has assaulted his grand-son and attacked his wife. 17. In his cross-examination, he admits that Pooranmal and his family have been looking after the land for the last forty to fifty years. They are not paid in cash, but in kind. He denies the suggestion that the moment this witness had entered the temple complex, they had assaulted Pooranmal. He also denies the suggestion that Jagdish had come and asked them as to why they were assaulting his father. 18. Rameshwar (P.W.4) admits in his cross-examination that the accused persons were living in the temple premises. But denies the suggestion that anti-social elements had come with him to the temple and had assaulted Pooranmal and that Pooranmal had fallen down. He also denies the suggestion that Jagdish had asked him as to why they are assaulting his father. 19. A bare perusal of the testimonies quoted above clearly reveals that Pooranmal has suffered an injury on his head which was noticed by Suresh Chand (P.W.12), Radha Bai (P.W. ), and Dr. Anil Pratap Sharma (D.W.1), but have been denied both by Rameshwar (P.W.4) and Manak Chand (P.W.11). Nonetheless, at the request of the police, Dr. Anil Pratap Sharma (D.W.1) had examined Pooranmal. He did find injury on Pooranmals head. According to the doctor, the injury could not be self-inflicted. According to the testimony of Suresh Chand (P.W.12), hot words were being exchanged between Manak Chand and Pooranmal, and Jagdish. According to Manak Chand (P.W.11), there was a dispute whereby he was trying to sell his fathers land which was looked after by Pooranmal and his family members. Since the prosecution has not explained the injuries suffered by Pooranmal, obviously, the prosecution has not revealed the genesis of the case correctly. But an analysis of the evidence clearly proves that due to the dispute which had erupted between Manak Chand and Pooranmal, there was a verbal abuse between the two parties. Since the prosecution has not explained the injuries suffered by Pooranmal, obviously, the prosecution has not revealed the genesis of the case correctly. But an analysis of the evidence clearly proves that due to the dispute which had erupted between Manak Chand and Pooranmal, there was a verbal abuse between the two parties. Pooranmal was suddenly injured as he had suffered an injury on his head. Jagdish, a young boy of twenty-two years old, must have seen his father being assaulted and in order to protect his father, Jagdish had taken out a knife and assaulted both Rameshwar and Shanti Bai. Thus, the right to protect the life and limb of his father is writ large. 20. However, the question is whether Jagdish has overstepped the right of private defense? Considering the fact that he had initially assaulted Rameshwar (P.W.4) whom he had hurt with a knife, and subsequently assaulted the intervener, Shanti Bai, considering the fact that he had caused two stab wounds on her stomach, obviously Jagdish has overstepped the right of private defense. Therefore, as far as Jagdish is concerned, his case does not fall within Section 302 IPC, but falls within Section 304 Pt. I IPC. D.B. Criminal Appeal No.1826/07, State of Rajasthan v. Pooranmal : 21. Mr. N.S. Dhakar, the learned Public Prosecutor, has contended that both according to Rameshwar (P.W.4) and according to Manak Chand (P.W.11), Pooranmal was present at the scene of the crime. In fact, according to Manak Chand (P. W. 11), it was Pooranmal who had instigated his son to kill his grand-son and his wife. 22. Secondly, since Jagdish has been convicted for offence under Section 302 IPC, Pooranmals role clearly shows that he and Jagdish shared a common intention of committing the murder of Shanti Bai. Therefore, he should have been convicted for offence under Section 302 read with Section 34 IPC. Instead, the learned Judge has acquitted him of the charges framed against him. 23. On the other hand, Mr. A.S. Narang, the learned counsel for Pooranmal, has pleaded that Rameshwar (P.W.4) does not say a word about Pooranmal instigating Jagdish. In fact, Rameshwar (P.W.4) is absolutely silent about Pooranmals presence at the time of the incident. Even Radha Bai (P. W. ) does not attribute any overt act to Pooranmal. Instead, in her cross-examination she admitted that in fact, Pooranmal was injured in the incident. In fact, Rameshwar (P.W.4) is absolutely silent about Pooranmals presence at the time of the incident. Even Radha Bai (P. W. ) does not attribute any overt act to Pooranmal. Instead, in her cross-examination she admitted that in fact, Pooranmal was injured in the incident. Although according to Radha Bai (P.W. ) and Suresh Chand (P.W.12), Pooranmal was present, but his presence was most natural as Pooranmal was living with his family in the temple premises. However, as no overt act has been assigned to him by Rameshwar (P.W.4), Radha Bai (P.W. ), Suresh Chand (P.W.12), the learned Judge was certainly justified in acquitting Pooranmal of the charges. 24. Lastly, the scope of interfering in a judgment of acquittal is extremely narrow. If the view taken by the learned trial court is a possible one, then the appellate court should not interfere with the acquittal. 25. Heard the learned counsel for the parties, perused the impugned judgment and examined the record. 26. A bare perusal of testimonies of Rameshwar (P.W.4), Radha Bai (P.W. ) and of Suresh Chand (P.W. ) clearly reveal that according to them, Pooranmal did not participate in the alleged incident. None of these witnesses claim that Pooranmal had instigated Jagdish to attack Rameshwar, or to kill Shanti Bai. In fact, according to Radha Bai (P.W. ) and Suresh Chand (P.W.12), Pooranmal was injured. Thus, clearly he was a victim of an assault --an assault hidden by the prosecution from the trial court. It is only Manak Chand (P.W.11) who claims that Pooranmal had instigated Jagdish to attack Rameshwar and Shanti Bai. But considering the fact that there was a dispute between Jagdish, Manak Chand and Pooranmal, a grave possibility does exist that Manak Chand is falsely implicating Pooranmal in the present case. 27. Therefore, the learned Judge was certainly justified in concluding that Pooranmals presence is natural as he lived with his family in the same premises, that no overt act has been assigned by the independent witnesses, namely Radha Bai (P.W. ) and Suresh Chand (P.W.12). Hence, the learned Judge was legally justified in acquitting Pooranmal of the charges. 28. In the case of Sudershan Kumar v. State of Himachal Pradesh [ 2014 (14) SCALE 276 ], the Honble Supreme Court has held as under: 29. Hence, the learned Judge was legally justified in acquitting Pooranmal of the charges. 28. In the case of Sudershan Kumar v. State of Himachal Pradesh [ 2014 (14) SCALE 276 ], the Honble Supreme Court has held as under: 29. It has been stated and restated that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of the acquittal. The appellate court, in such a case, would interfere only for very substantial and compelling reason. There is plethora of case laws on this proposition and we need not burden this judgment by referring to those decisions. Our purpose would be served by referring to one reasoned pronouncement entitled Dhanapal v. State by Public Prosecutor, Madras (2009) 10 SCC 401 is the judgment where most of the earlier decisions laying down the aforesaid principle are referred to. In para 39, propositions laid down in an earlier case are taken note of as under: "39. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415 , this Court held: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 30. Thereafter, in para 41, the Court curled out five principles and we would like to reproduce the said para hereunder: "41. The following principles emerge from the cases above: 1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. 2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court. 3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses. 4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. 5. If two reasonable or possible views can be reached-one that leads to acquittal, the other to conviction-the High Courts/ appellate courts must rule in favour of the accused." 29. Having considered and discussed the appeals, this court partly allows the appeals filed by Jagdish by converting his conviction from one under Section 302 IPC to Section 304 Pt.I IPC and by reducing the sentence from life imprisonment to ten years of rigorous imprisonment. The fine and the sentence in default thereof, as awarded by the learned trial court, however, are confirmed. Moreover, his conviction for offence under Section 324 IPC and for offence under Section 4/25, Arms Act is confirmed. Furthermore, the State Appeal, having no force, is hereby, dismissed.Appeals of J Partly allowed as above. *******