Wanchoo, C. J. - (1.) THIS is an appeal by. Misaria and Durgia who have been convicted by the Sessions Judge of Jodhpur. Misaria has been sentenced to five years' rigorous imprisonment under sec. 30 I. P. C. and Durgia to six months' rigorous imprisonment under sec. 323 I. P. C. Both have also been sentenced to small fines.
(2.) THE case relates to an incident which is said to have taken place on the 4th of March 1947 at about 6-30 P. M. in village Netaria. It appears that there had been bad blood between Jagirdar Gopal Singh of Netaria and his tenants who are Jats. In this connection, there were reports and cross-reports by the two sides to the v?rious authorities. It is sail that some time before the 4th of March 1947, the Jagirdar made a report to the Hakim at Merta that an An-in should be appointed for the harvesting and apportionment of the Rabi Crop and he should be directed to reach the village some time before-hand so that the crop might not be damaged or' removed before the apportionment took place. Consequently, the Hakim ordered Ramchandra Amin to go to the village for this purpose. Ramchandra reached village Netaria on the 27th of February 1947. Jagirdar Gopal Singh deputed his servant Misaria, one of the appellants before us to assist the Amin in his duties. THE Amin continued to stay in the village for some time. It is said that on the evening of the 4th of March 1947, the Amin was sitting on the embankment of the tank along with Misaria. At that time, one Girdhari-P. W. 3 and his daughter Mst. Sayari P. W. 2 passed by that side. Both of them had bundles of kolas which they must have brought from their field. Ramchandra and Misaria questioned' them about the removal of the gram plants, whereupon there was an exchange of hot words between Girdhari and Misaria and Misaria is said to have struck Girdhari with his lathi. Girdhari raised an alarm. It is said that on this alarm, Jagirdar G)pal Singh, accompanied by four others, reached the spot first. Immediately on reaching the scene, Gopal Singh asked his followers to beat-Girdhari and himself began the attack; by hitting him on the head with a lathi. He was followed by others and in the meantime, other servants and follower of the Jagirdar came there shouting 'maro maro'. Girdhari and his daughter ran away and these persons then proceeded towards the Kot, and six of them entered one Ghisa's house and began to beat him. In the meantime, they noticed a bullock-cart coming from the side of Merta on which Narain deceased and two others were sitting. This cart was then attacked by Gopal Singh and others and Gopal Singh was the first to hit Naraina on the head and knock him down. Naraina is said to have died soon after while his two companions. , Lala and Ramura received injuries. Other Jats are also said to have arrived at the embankment and are said to have received injuries at the hands of Gopal Singh and his followers, Seventeen persons were prose-cuted by the police in connection with this incident, of these, seven were discharged by the Magistrate and ten were committed to the court of Sessions. Out of these ten, eight have been acquitted including Gopal Singh while two, namely, Misaria and Durgia have been convicted. The accused persons put forward a counter story which is briefly this, It was admitted that there was bad blood between the Jagirdar Gopal Singh and the tenants for some time past. It is also admitted that the Jagirdar had applied to the Hakim for the appointment of an Amin for the purpose of apportioning the standing crop and for seeing that nothing was removed from the fields till the apportionment was over. Ramchandra Amin had been deputed for this purpose on the 27th of February, 1947 and had been staying in the village. . It is also admitted that on the evening of 4th of March 1947, Ramchandra as well as Misaria were sitting at the embankment of the tank. From here begins the difference between the prosecution story and the story set up by the defence. Defence case is that while these two persons were sitting at the embankment, Dhanna and Ramkaran P. Ws. passed that way with holas with them Rarachandra asked Dhanna to surrender the holas and caught him while Ramkaran ran away. Dhanna refused to give up the gram and raised an alarm. Ramchandra, however, took Dhanna to the kot. Dhanna was using abusive language all the way when these people reached the Kot. Gopal Singh came out on hearing the noise; Durgia was also with Gopal Singh. In the meantime, twenty Jats including Narain deceased and others, who have been produced as prosecution witnesses in this case, collected at the gate of the kot and demanded release of Dhanna. Ramchandra Amin refused to release Dhanna. Thereupon Ramkaran hit the Amin who got up on the chabutra. Then Narain struck Gopal Singh with a pharsi and when a second blow was aimed at Gopal Singh, Misaria hit at Narain's head with a lathi to stop him from causing further injuries to Gopal Singh. The Jats, who were there, then started hitting Gopal Singh. Durgia and Misaria and these two, Durgia and Misaria, retaliated. Eventually, one Kalyan Singh Hawaldar, who was there, threatened to shoot at the Jats if they did not stop and it was then that the Jats left the place. The accused thus claimed right of self defence of person. Both parties produced evidence in support of their respective stories. The learned Sessions Judge, after examining the evidence in detail, came to the conclusion that the witnesses for the prosecution were neither disinterested nor independent and had been shown to be on inimical terms with the various persons who were on trial before him. They were also unreliable because they went back on the previous statements they had made to the police and the committing Magistrate. He also disbelieved the basis of the prosecution case namely, that Girdhari and Mst. . Sayari were passing by the embankment and holas were snatched from Mst. Sayari. He has also disbelieved the story that some of the accused entered the house of Ghisa and beat him and that Narain deceased was accidently passing on a cart when some of the accused started attacking him. We agree with the learned Sessions Judge that the prosecution story as it was disclosed in court was unnatural and improbable and the evidence in support of it was neither independent nor credible. The learned Sessions Judge, on the other hand, believed that the defence version was correct version of the incident that took place that evening. He relied on the evidence of Ramchandra and Kalyan Singh who were produced by the defence and who appear to us to be independent witnesses. He also pointed out that the prosecution was unable to explain the injuries received by Gopal Singh, Durgia and Misaria, for the prosecution case was that none of the Jats had caused any injuries to any one on the side of the accused. He, therefore came to the conclusion that the Jats were the aggressive party and Misaria and Durgia acted in self-defence and struck Narain and others in order to shield Gopal Singh who was hit seriously on the head and was about to be hit again. It is true that besides Narain deceased, twelve Jats received injuries. But an examination of the injury reports shows that except for Narain and three others, the other Jats merely received trivial injuries which are of no consequence really. Thus it seems that though there were twenty Jats present at the time, only four or five of them took a serious part in the attack on Gopal Singh. Under these circumstances, it is not improbable that only two persons, Misaria and Durgia, were able to cause a number of injuries to four or five Jats, particularly when they must have fought under the gate of the kot. We are, therefore, of opinion that the right of private defence of person was in this case with the party of Gopal Singh. The learned Sessions Judge, after giving the right of private defence of person to the accused did not follow up that rinding to its logical conclusion. He says that Misaria dealt a severe blow on Narain's head, a vital part of the body an J, therefore, Misaria must be held to have exceeded the right of private defence of person. He lost sight of the fact that Misaria was acting in defence of Gopal Singh who had already been hit with a pharsi by Narain and Narain was going to strike a second blow at Gopal Singh. Under sec. 100 of the Indian Penal Code, the right of private defence of the body extends to the causing of death provided that the assault which has occasioned the right of private defence is such as may reasonably cause an apprehension that death or grievous hurt would other-wise be the consequence of such assault. In this case, Gopal Singh had already been hit with a pharsi on the head and under the circumstances, it could be reasonably apprehended that if he was not defended, death or grievous hurt would be the consequence of the attack. The medical report shows that the injury on the head of Gopal Singh was 2-1/2. X 1-1/4" bone deep and was an incised wound. Therefore, Durgia and Misaria, who hit at the Jats in defence of Gopal Singh had the right to cause even death under sec. 100 of the Indian Penal Code. We may also point out that it is not possible in a fight like this in the heat of the moment to measure the weight of the blows and the mere fact that a particular blow happened to be harder than another would not take away the right of private defence of person provided that the person defending himself or another had not acted in such a way as would show that more blows were given than were necessary for the purpose. We are, therefore, of opinio that Misaria was also entitled to an acquittal on the ground that the injuries which he had caused to Narain were in exercise of the right of private defence of person. As for Durgia, he has been convicted under sec. 323 "i. P. C. only and we cannot understand how in his case, it can even be imagined that there was an exceeding of the right of private defence of person. After all, if a person is saving himself or another and uses a lathi far that purpose, he is bound to cause at least simple hurt to the assailant and if he is held to have exceeded his right of private defence merely because he caused simple hurt to the assailant, there would really be no right of private defence left. Durgia, therefore, is also entitled, in our opinion, to the right of private defence of person and should have been acquitted. We, therefore, allow the apppeal, set aside the order of the court below and acquit the appellants. They are on bail and need not surrender. . ;