G. M. Lodha, J. - (1.) THE straying of the goats of the accused resulting in damage to the crop to the complainant resulted in the incident, which has given rise to cross cases between the parties. THE present one is an appeal by the accused Ram Chandra who has been convicted under section 307 I. P. C. by the Sessions Judge, Tonk and sentenced to two years rigorous imprisonment and a fine of Rs. 200/ -and imprisonment of two months rigorous imprisonment in default of payment of fine.
(2.) THE prosecution case as per the F. I. R. lodged by Ganga Ram in Thana Baroni at 12. 30 noon on 20. 1. 1978 mentions that on 19. 1. 1978 at about 6. p. m. Gopal went; to the house of Mohariya alias Morpal and Ramchandra for reprimanding them for the damage caused to the crop by the goats of Gopal and Mohariya alias Morpal. On this the accused Mohariya alias Morpal and Ramchandra etc. started abusing Gopal. Gopal came back to his house. This was followed by an attack by the accused Ramchandra and others who came with lathis and Gandasi following Gopal. Ramchandra gave a Gandasi blow to Gopal on the head and Molya gave a lathi blow to Gopal on the eyelid. Nathu accused gave a lathi blow to Ramniwas and Mooyal gave a lathi blow to Ramniwas on the leg. Kalu gave a lathi blow to Gopal, On making hue and cry Kajod and Ramdeo came and rescused, otherwise the accused would have killed the complainant party. After usual investigation the accused Morpal, Ramchandra, Moolya, Kishna, Kalu and Nathu -were challaned and after commitment they were tried by the Sesssions Judge. Except Ramchandra all were acquitted and Ramchadra has been convicted as mentioned above. It is not necessary to narrate the statement of each witness. It is enough to mention that the deduction drawn by the learned Sessions Judge contained in para No. 3. goes to show that he has come to the conclusion on detailed discussion of the evidence that Morpal accused had goats which damaged the crop of the complainant party. Due to this the complainant party went to the house of the accused persons to reprimand them and at this place the incident happened. In substance the learned Sessions Judge has unequivocally come to the conclusion that the place of occurrence is the house of the accused persons and the incident happened when the complainant reached the house of the accused and reprimanded them. This conclusion of the Sessions Judge is of great importance because the entire submissions of the learned counsel for the appellant are based on it. Having come to the above conclusion, the learned Sessions Judge thereafter mentions that the accused have not proved who was the aggressor and from the evidence recorded in the case, it is not possible to decide as to who was the aggressor and who started quarrel. He then blames the accused party and his counsel for not making any effort to get the cross case committed to the Sessions Court. On these thin slippery premises, the learned Sessions Judge rejected the case of the accused that the injuries were caused to the complainant party while exercising the right of private defence. I have got no hesitation in holding that the above approach of the learned Sessions Judge cannot be termed as correct and proper in a criminal case of this type. The broad features of the case which are well proved on the record now require to be mentioned. The injuries caused to the complainant party consisting of two persons Gopal and Ramniwas as observed by P. W. 10 Dr. Krishna Behari are as under: 1. Incised wound bleeding present 2 x 1/3" x 1/2" into bone deep right side of the skull just near the mid line 1" behind the heir line. 2. Fissured fracture which is visible through the injury No. 1, 3" long right parital bone corresponding to injury No. 1. 3. Haematoma black eye 2" x 2" both lids of both eyes and fore -head. 4. Bruise 5" x 1" outer and middle part of left arm. 5. Bruise 3" x 1" right forearm middle and back. Ramniwas: 1. Lacerated wound 1/2" x 1/10" x 1/10" lobule of righ ear starting from the hole of earring. 2. Bruise 2" x 1" outer and middle part of the left side. 3. Bruise 2" x 2" left calf. The injuries caused to the accused party have been proved by the same statement of Dr. Krishna Behari. According to him, injuries were caused to all the accused who are six in number and they are as under: Accused Ramchander: 1. Lacerated wound 2" x 1/4" into scalp deep left side of middle of scalp 1" away from the mid line. 2. Lacerated wound 1 -1/2" x 1/4" into scalp deep middle of the scalp in the mid line. 3. Lacerated wound 1" x 1/4" into scalp deep, mid line of scalp near head line. 4. Bruise 3" x 1" left side of the back lower part. Accused Morpal: 1. Haematoma with abrasion 1" x 1" on the scalp in the mid line near head line. Accused Nathu: 1. Bruise 3" x 2" back of right elbow. 2. Abrasion 1" x 1/2" in the middle side of left fore -arm. 3. Abrasion 1/2" x 1/4" lower 1/3 of middle side of left fore arm. 4. Bruise 3" x 1" right scapular region. Accused Moolchand: 1. Bruise with abrasion 2" x 2" outer and middle part of right arm. Accused Kishan Lal: 1. Lacerated wound 1/2" x 1/4" x 1/8" back of right middle finger. 2. Bruise 2" x 2" back right palm. Accused Kalu: 1. Bruise 2" x 2" left scapular region upper part. 2. Pain on the buttock on left side. 3. Lacerated wound 1/2" x 1/4" x 1/10" outer part of left eyebrow. It would thus be seen that Ramchandra accused had two lacerated wounds in addition to a bruise and all the three injuries were caused on the scalp. Accused Kishan Lal and Kalu each had one lacerated wounds in addition to bruise and the other accused had abrasions and bruises. The fact that injuries to Ramchandra were caused on scalp i. e. head, is not without significance. This shows that Ramchandra was given three lathi injuries on the head. It is true that Gopal received five injuries. According to the statement of the doctor injury No. 3 was simple and was effect of injury No. 1. Injuries No. 4 and 5 were also simple by blunt weapon and injuries No. 1 and 2 were caused by a single blow. Injury No. 2 was grievous and was caused by a sharp weapon. Rmaniwas received one lacerated injury near the ear in addition to the bruises. I would deal with the effect and implications of the injuries a little later Apart from the deduction of the learned Sessions Judge that the incident happened at the house of the accused persons, it is not without significance that P. W. 4 Bhoora in clear and categorical terms has admitted in cross -examination that all the members of the complainant party took lathis and they reached the house of the accused with lathis. Though in the examination -in -chief he also stated the story of the prosecution in a parrot like manner that Gopal returned back from the house of Morpal accused & when Gopal reached his house back, then Morpal, Ramchandra, Nathu, Moolya, Kishna and Kalu came to attack Gopal with lathis and Gandasis. However, this prosecution story has been completely falsified so far as it relates to the place of occurrence and the immediate cause of the incident in his cross -examination when the had to concede that all the members of the complainant party went with lathis to the house of the accused and the incident took place at the house of the accused. It is not without significance that even in cross -examination he first of all wanted to stick to the false story regarding the manner of incident and the place and scene of occurrence by refusing to accept the suggestion that all the persons of the complainant party took lathis and went to the house of the accused, but he soon after succumbed to truth under the fire of cross -examination.
(3.) I have mentioned in details the statement of Bhoora in order to emphasise that the entire prosecution story stands falsified so far as proximate cause, scene, place and the method and manner of the incident as narrated by the prosecution, is concerned. This falsification is not without significance and is of great importance. In a given case the court may not attach much importance to shifting of the place of occurrence if it is slight and unintentional and without design. This is not so in the instance case. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence and the present case is a typical case which amply illustrates the importance of the same. In case the place of the occurrence would have as alleged by the prosecution i. e. the house of the complainant party, then the entire complexion of the case would have changed. There would have been no hesitation in holding that even though the complainant party's persons might have reprimanded the accused for staring their goats, the accused party had no right to go back with lathis and Gandasis to attack the complainant party after they have returned back to their house. In that situation this court would have held that even if the accused party was aggrieved by the reprimand or causing of some injuries by the complainant party, they could not have taken the law in their hands, and they should have gone to the police station to make a complaint, if they were beaten. However, this has not been without significance that the prosecution was conscious of this possibility and therefore they changed the story so that the accused may be deprived of the plea of right of private defence and it is on account of this crucial feature of the case, that the scene of the incident, manner of the incident and the proximate cause of the incident, all assumed great importance. It can be said without any fear of contradiction that in a case of the present nature both the parties have received injuries as per the medical evidence and no less than six persons of the accused party have received injuries consisting of lacerated wounds on the head, a vital part of the body. The crucial question to be determined would be about the right of self defence. This would depend upon the place and scene of the occurrence and the proof about the fact as to who were the aggressors. ;