JUDGMENT Kanwaljit Singh Ahluwalia, J. (Oral) - Hariya @ Heeralal, Jagdish, Lachhu @ Laxminarayan, all three sons of Ghisya, and Gajanand s/o Dhanna Lal were nominated as accused in case FIR No.113/91 (Ex.P.9), registered at Police Station Gangapur City, Sawai madhopur, initially for offences under Sections 147, 323, 341, 342 IPC. Solitary injured in the occurrence, Bhoru died after six days of the occurrence and hence, subsequently offence under Section 302 IPC was added. 2. The above said accused were tried by the Court of Additional Sessions Judge, Gangapur City. The said court vide impugned judgment dated 25.03.1994 substantively convicted Hirya @ Heeralal for offences under Sections 302 and 342 IPC, whereas remaining three accused Jagdish, Lachhu @ Laxminarayan and Gajanand were convicted for offences under Sections 302 r.w. 34 and 342 IPC. Having convicted the appellants for the above said offences, the trial Judge, vide a separate order of even date, sentenced them as under:- Accused - Hirya @ Heeralal under section 302 IPC and accused - Jagdish, Lachhu @ Laxminarayan and Gajanand under section 302/34 IPC "Life imprisonment, to pay a fine of Rs. 500/- each and in default thereof to undergo three months rigorous imprisonment." Accused - Hirya @ Heeralal, Jagdish, Lachhu @ Laxminarayan and Gajanand under section 342 IPC "Three months imprisonment" (All the sentences were ordered to run concurrently) 3. Aggrieved against their conviction and sentence, appellants have instituted the present appeal. Shortly after filing of the appeal, sentence awarded upon the appellants was suspended and they were ordered to be released on bail. 4. During pendency of appeal, principal accused who was substantively convicted for the offence of murder, Hariya @ Heeralal, expired and this court on 17.8.2017 passed the following order:- "Jagdish, Lachhu @ Laxmi Narain and Gajanand-appellant Nos.2 to 4 respectively are present in court along with their counsel Mr. Sanjay Mehrishi. Mr. Sanjay Mehrishi, has submitted that Hariya @ Hiralalappellant No.1 has died during the pendency of the appeal. In these circumstances, we direct ACJM, Gangapur City, Sawaimadhopur, to hold an inquiry regarding factum of death of Hariya @ Hiralal-appellant No.1. Deputy Registrar (Judicial) to facilitate inquiry by ACJM, Gangapur City, Sawaimadhopur, shall send number of the FIR and photocopies of the essential record which is necessary for holding inquiry. Mr. Sanjay Mehrishi prays for an adjournment to argue the appeal. Deputy Registrar (Judicial) to facilitate inquiry by ACJM, Gangapur City, Sawaimadhopur, shall send number of the FIR and photocopies of the essential record which is necessary for holding inquiry. Mr. Sanjay Mehrishi prays for an adjournment to argue the appeal. To await report from the court of ACJM, Gangapur City, Sawaimadhopur, and for arguments on behalf of remaining accused-appellants, list on 03.10.2017. Deputy Registrar (Judicial) is directed to send the copy of this order to the Court of ACJM, Gangapur City, Sawaimadhopur, forthwith. Copy of this order be handed over to Mr. Aladeen Khan, PP, under the seal and signature of Court Master for onward transmission and necessary compliance." In pursuance of the above said order, the Court of Additional Chief Judicial Magistrate, Gangapur City, submitted his report. As per the said report, Hariya @ Heeralal accused has expired, hence, present appeal qua him is dismissed as having abated. 5. In the present case, criminal proceedings were set into motion on the basis of written typed report (Ex.P.8) submitted by Chhitar (PW.5). The said report was presented before Raj Singh (PW.15) who was then posted as SHO, Police Station Gangapur City. The written report (Ex.P.8) when translated into English reads as under:- To, SHO Sahab, P.S. Gangapur City. Sub.: For catching hold of brother of the applicant Bhoru near Khalda Drain, Mirjapur and taking away and giving him beating. Sir, It is submitted that brother of the applicant at about 4.00 PM from Gangapur City was returning to his house. On the way to the house of applicant, near Khalda drain, Mirjapur, Babu s/o Dhanna, Gajanand s/o Dhanna, Lachhu s/o Ghisya, Jagish s/o Ghisya, Heera s/o Ghisya, armed with lathis started beating brother of the applicant. Thereafter forcibly by showing lathis, above said accused took brother of the applicant to their house and confined him in a room. Applicant requested them not to do so. Applicant was also caused injuries by Babu and Gajanand. The occurrence was witnessed by Nanagram s/o Lohade Lodha and Kailash s/o Kishanlal Lodha, residents of Mirjapur. They asked the accused to see the reason, but they had not agreed and after wrongfully confining the brother in a room of the house, are causing him beating. Therefore, report is presented. Accused be immediately arrested and brother of the applicant be recovered and strict legal action be taken against the accused. Report is presented. They asked the accused to see the reason, but they had not agreed and after wrongfully confining the brother in a room of the house, are causing him beating. Therefore, report is presented. Accused be immediately arrested and brother of the applicant be recovered and strict legal action be taken against the accused. Report is presented. Sd/ Applicant Chhitar Lodha s/o Harbux, Caste Lodha, r/o Mirjapur, Khalda Nala, Gangapur City. Dt.31.3.91" 6. Occurrence in the present case had taken place on 31.1.1991 at 4.00 PM. Written report (Ex.P.8) was submitted on 31.3.1991 at 8.05 PM, on the basis thereof formal FIR (Ex.P.9) bearing No.113/91 was registered at Police Station Gangapur City for offences under Sections 147, 323, 341 and 342 IPC. 7. From perusal of above written report (Ex.P.8), following facts are discernible:- (a) . Four accused sent for the trial, namely Hariya @ Heeralal, Jagdish, Lachhu @ Laxminarayan, all three sons of Ghisya, and Gajanand s/o Dhanna Lal alongwith his brother Babu caught hold of Bhoru on the way and caused him injuries there and thereafter had taken him inside their house. (b) . Babu and Gajanand are brothers being sons of Dhanna. Babu has not been sent for the trial. 8. In the present case, only following two questions arise:- (a) . Whether Bhoru injured who died subsequently was dragged/lifted by the accused and taken to their house or he himself had gone there? (b) . Whether the act of Bhoru in case he himself had gone to the house of the accused, was an innocent act or amounted to criminal trespass with malicious intent? 9. To answer above questions, we have to take note of the prosecution case and the defence evidence. 10. Dr. Prakash Chand Sethi (PW.2) on 31.3.1991 at 8.45 PM examined Bhoru s/o Harbux, aged 45 years and in injury report (Ex.P.2) noted following injuries on his person:- "1. Contusion with lacerated wound, reddish, 11/4" x 1", %" x %" x skin deep, on right forearm upper A, Back side fresh bleeding tissue). Blunt. 2. Contusion with lacerated wound, reddish, 1" x 1", %" x V/" x skin deep, on right leg in front middle A. Bleeds fresh on cleaning. Blunt. 3. Contusion, reddish, 9" x 1" on left back downward medially. Blunt. 4. Contusion, reddish, 3" x 1" on left shoulder, backwards. Simple, blunt. 5. Blunt. 2. Contusion with lacerated wound, reddish, 1" x 1", %" x V/" x skin deep, on right leg in front middle A. Bleeds fresh on cleaning. Blunt. 3. Contusion, reddish, 9" x 1" on left back downward medially. Blunt. 4. Contusion, reddish, 3" x 1" on left shoulder, backwards. Simple, blunt. 5. Contusion and swelling, reddish, 2" x 1", 2" x 2" on left elbow outer side. Blunt. 6. Abrasion, reddish, 1" x VV, irregular, back side of left elbow. Simple, blunt. 7. Contused abrasion, reddish, 11/4" x /" on front of chest. 1" above epigastic region. Simple, blunt. 8. Contusion, reddish, 2" x 1", on left upper arm outer side middle A, downward and outward. Simple, blunt. 9. Contusion, 1" x 1", on left occipito parietal region. Blunt." From perusal of above injuries it is apparent that except injury No.9, which is on left occipital parietal region, all injuries are on non-vital parts of the body, i.e. hand, feet, shoulder, elbow, etc. Dr. Prakash Chand Sethi (PW.2) in his examination-in-chief specifically stated that breath of Bhoru was smelling of alcohol and his vomit was also preserved and was sent to Forensic Science Laboratory for chemical examination. We reproduce following portion from examination-in-chief of Dr. Prakash Chand Sethi (PW.2), as under:- 11. In cross-examination Doctor also stated that the injured had taken alcohol. Relevant portion of cross-examination of Dr. Prakash Chand Sethi (PW.2) even though at the cost of repetition, is reproduced as under:- While admitted in Surgical Ward of General Hospital, Karauli on 6.4.1991 at 3.20 PM Bhoru expired and his autopsy was conducted by Dr. Dashrath Singh Rajawat (PW.14) on 6.4.1991 at 4.30 PM. In the post-mortem report (Ex.P.24), Doctor noted almost similar injuries. Injuries No.1 and 2 are stitched wounds. As per opinion of the Doctor, injury No.9 on left occipito parietal region was sufficient to cause death in ordinary course of nature. 12. In the trial, injury No.9 has been attributed by the witnesses to Hariya @ Heeralal. Hence, he has been substantively convicted by the trial Judge. To this extent we will notice the testimony of the witnesses. 13. At the first instance, Chhitar (PW.5) in court stated, 14. Another eye-witness Kailash (PW.8) in examination-in-chief stated that Hirya caused injury on left side of head of Bhoru, 15. Hence, he has been substantively convicted by the trial Judge. To this extent we will notice the testimony of the witnesses. 13. At the first instance, Chhitar (PW.5) in court stated, 14. Another eye-witness Kailash (PW.8) in examination-in-chief stated that Hirya caused injury on left side of head of Bhoru, 15. Similarly, Nanagram (PW.11) has also attributed head injury which has proved fatal, to Hirya @ Heeralal accused who died during pendency of appeal and the present appeal qua him has been dismissed as having abated. 16. A specific suggestion was given to Chhitar (PW.5) that Bhoru deceased under the influence of liquor had entered into the house of accused and made an attempt to outrage the modesty of Beena (DW.1) wife of Gajanand accused-appellant. Suggestion given to this extent reads as under: 17. Similar suggestion was also given to Kailash (PW.8), another eye-witness. The case of the prosecution is further that before lodging of report (Ex.P.8) by Chhitar (PW.5), Babu, brother of Gajanand accused, had gone to lodge the report against the conduct of Bhoru deceased. Therefore, we shall reproduce following portion from testimony of Kailash (PW.8), as under:- 18. Nanagram (PW.11) was also given similar suggestion. Relevant portion of crossexamination of the witness reads as under:- 19. In the context of above, it becomes imperative for us to refer to the evidence of Bhanwar Singh (PW.16), Investigating Officer, who was assigned investigation of the present case. This witness in cross-examination admitted that he has not found any trail of blood at the place where first injury was caused, to the house of the accused where allegedly injured Bhoru was confined. Relevant portion of cross-examination of the Bhanwar Singh (PW.16) reads as under:- 20. In the statement recorded under Section 313 Cr.P.C., 1973 accused have taken a specific stand that deceased Bhoru had entered into the house of Gajanand accused. He made an attempt to outrage the modesty of Beena wife of Gajanand and as such, women present in the house have caused injuries to the deceased. 21. Beena (DW.1) has stated that she was inside her house. There Bhoru came. Bhoru is maternal uncle of her husband Gajanand, accused-appellant. She stated that she was grinding the grain. Bhoru deceased caught hold of her. He embrassed her. She gave him a push. Bhoru again caught hold of her. 21. Beena (DW.1) has stated that she was inside her house. There Bhoru came. Bhoru is maternal uncle of her husband Gajanand, accused-appellant. She stated that she was grinding the grain. Bhoru deceased caught hold of her. He embrassed her. She gave him a push. Bhoru again caught hold of her. Then ladies of the house Amrav, Shanti, Godi, Meera came there and they gave beating to Bhoru with Danda etc. 22. To fortify the statement of Beena (DW.1), Amrav appeared as DW.2 and supported Beena (DW.1). 23. Guljari Lal @ Gulji (DW.3) stated that at Mirjapur he alongwith Bhoru had taken country-made liquor. Then he was returning to the house alongwith Bhoru. Bhoru stopped at the house of Gajanand. Later he heard cries of Beena wife of Gajanand. 24. Babulal (DW.4) brother of Gajanand accused who was earlier named as accused in the written report (Ex.P.8) and was not tried, in witness box took a stand that after the deceased entered their house and made an attempt to outrage the modesty of Beena (DW.1), he had gone to police station to lodge the report. The witness further stated that Chhitar (PW.5) also arrived at police station. He alongwith Chhitar (PW.5) in police Jeep came to their house. 25. We have heard Shri Sanjay Mehrishi, learned counsel for the appellant and Shri R.S. Shekhawat, learned Public Prosecutor. 26. From immediate medical examination of Bhoru by Dr. Prakash Chand Sethi (PW.2), it is proved that Bhoru was under the influence of liquor. He was smelling of alcohol. His vomit was taken and alongwith wash of stomach was sent to Forensic Science Laboratory for chemical examination. Prosecution has withheld the report of Forensic Science Laboratory. Thus, court is deprived to notice extent and percentage of alcohol in the blood of Bhoru deceased. 27. Be that as it may, it stands conclusively proved that Bhoru was under the influence of liquor. It has also come in defence evidence that after taking liquor from the liquor shop at Mirjapur, Bhoru deceased stopped infront of house of Gajanand. However, from prosecution case itself, it stands conclusively proved that deceased Bhoru was in the house of accused Gajanand as he was recovered from there. It has also come in defence evidence that after taking liquor from the liquor shop at Mirjapur, Bhoru deceased stopped infront of house of Gajanand. However, from prosecution case itself, it stands conclusively proved that deceased Bhoru was in the house of accused Gajanand as he was recovered from there. The story that on the way accused gave beating to the deceased and thereafter had taken him to the house of Gajanand is not fortified as no blood trail was found from the place where allegedly first beating was given to the accused, till the house of Gajanand where allegedly the deceased was taken by way of dragging or by lifting him. The Investigating Officer has specifically stated that at the passage he found no falling of blood and no blood spots were available, hence blood trail was missing. It has also come in evidence of Nanagram (PW.11) that Babu, brother of accused Gajanand and husband of Veena (DW.1), had gone to the police station. Before Chhitar (PW.5) arrived at Police Station Gangapur City, as to why Babu had gone there no explanation is forthcoming from the prosecution evidence. It has come in evidence that deceased Bhoru is maternal uncle of Gajanand accused and Babu. There is no previous history of inimical relation. Relations between the parties were not strained. Thus, it cannot be ruled out that Bhoru deceased admittedly under the influence of liquor had gone to the house of accused as presence of injured in the house of the accused in itself is the case of the prosecution and how he reached there is not proved from the prosecution evidence for want of drag marks or blood trail. 28. In the present case a very bold defence has been taken by the accused. They have put the reputation and honour of the family at stake by examining Beena (DW.1). In the present case, occurrence had taken place in the year 1991. Two and half decades ago society was too conservative. At that time, it was always an effort of the concerned family to bury such untoward incidents below the carpet or keep them under the wrap. Therefore, examination of Beena (DW.1), Amrav (DW.2), Guljari Lal @ Gulji (DW.3) and Babulal (DW.4) make defence version more probable. Two and half decades ago society was too conservative. At that time, it was always an effort of the concerned family to bury such untoward incidents below the carpet or keep them under the wrap. Therefore, examination of Beena (DW.1), Amrav (DW.2), Guljari Lal @ Gulji (DW.3) and Babulal (DW.4) make defence version more probable. Thus, we can safely say that the deceased Bhoru under the influence of liquor trespassed into the house of the accused and made an attempt to outrage the modesty of Beena (DW.1) wife of Gajanand accused and hence, he was caused injuries. 29. Section 100 Cr.P.C., 1973 specifically state that where an assault is committed with intention to commit rape, the right of private defence extends to causing death. Furthermore also the trespass by the injured in the house of accused with an intention to outrage the modesty of a woman of the house vest right in them to cause injuries to the deceased. 30. In view of above, we find that the appellants have not committed any offence by causing injuries to Bhoru deceased. 31. As a result of above discussion, we accept the present appeal by setting aside the conviction and sentence of the appellants. Therefore, all the three surviving appellants, Jagdish, Lachhu @ Laxminarayan and Gajanand, are acquitted of the charges. 32. As stated above, the present appeal qua accused-appellant No.1 Hariya @ Heeralal is dismissed as having abated. 33. From the record, we find that shortly after admission of the appeal, sentence awarded upon the appellants was suspended and they were ordered to be released on bail. Therefore, we discharge their bail bonds and surety bonds and direct the trial court to comply with the provisions of Section 437-A Cr.P.C.