Sharma, J. - (1.) THIS is an appeal by Prithvisingh accused who has been convicted under sec. 304 I. P. C. by the Sessions Judge, Alwar, and sentenced to three years' rigorous imprisonment, and a fine of Rs. 150/- and in default two months' rigorous imprisonment more.
(2.) ACCORDING to the prosecution, the accused Prithvisingh went to the field known as Gharibdaswala in village Nangal Salia in Alwar District, on the 25th July 1951 and began to plough the field. Mst. Nihali and har nephew Granpatsingh and her Mukhtar-am Durjansingh went to the field to stop Prithvisingh from ploughing it at about 5 P. M. Mst. Nihali asked the accused not to plough the field but he did not listen to her, abused her and pushed her. Ganpatsingh also asked the accused not to plough the field but the accused did not listen to him also and gave an iron shod lathi blow on the head of Ganpatsingh who fell down injured. Ganpatsingh was taken first to the police station Kishangarh where a report was lodged and thereafter he was taken to Tijara hospital where he was examined by Dr. Dharampal Dutt on the 26th July 1951. On the 27th July 1951 Ganpatsingh died at about 2 P. M. The report of the incident which purports to have been made by Ganpatsingh deceased, Mst. Nihali and Durjansingh at about 4 A. M. on the 26th July 1951 is Ex. D-7. Another report was lodged by Prithvisingh at about 3-30 P. M. at the same police station is Ex. P-l. During the investigation a lathi Ex. P. G. was produced by Banwari P. W. 7 before the police. The accused was arrested on the 29th July 1951 and was medically examined on 31st July 1951 when an injury was found on his back. The statement of the accused under sec. 164 Cr. P. C. was also recorded on the 31st July 1951, before the Extra Magistrate, Tijara, and this statement is described by the prosecution as the confession of the accused. It is Ex. D-14 on the record. The case was challaned in the court of the Sub-Divisional Magistrate, Tijara, under sec. 302 I. P. C. who committed the accused to take his trial before the Court of Sessions at Alwar for an offence of murder under sec. 302 I. P. C. The defence was that the accused has been adopted by Gangapat-singh, the husband of Mst. Nihali in his lifetime. Mutation had also been effected in favour of the accused. Prior to his adoption a gift of some property had been made by Gangapatsingh in favour of Ganpatsingh deceased who was the brother's son of Mst. Nihali. This gift was however cancelled by Gangapatsingh and thereafter the accused was adopted by Gangapatsingh. After Gangapatsingh's death a civil action was brought by Mst. Nihali for the cancellation of the deed of adoption and mutation in favour of the accused and an application was made for interim injunction. An interim injunction was made but on an objection of the accused it was finally ordered that the accused would be entitled to realise rents and manage the property left by Gangapatsingh but he would deposit the net balance after paying Government dues in the Imperial Bank of India which would be paid to the successful party after the decision of the case. A security of Rs. 5000/- was called for from the accused and he furnished it. The order of the court was communicated to Mst. Nihali. Still, when the accused went to plough the field on the 25th July 1951 Ganpat and Nihali and Durjansingh unlawfully interfered with the ploughing of the field by the accused and Ganpatsingh gave a lathi blow to him on which the accused gave a lathi blow to Ganpat in the exercise of the right of private defence of property and person. A number of witnesses were produced on behalf of the prosecution but the learned Sesssions Judge did not believe the evidence of the eye-witnesses, except in so far as the allegations about the dealing of a blow with a lathi by the accused to the deceased were concerned. He however acted inter alia upon certain portions of the so-called confession Ex. D-14 and held that the accused had no right of private defence of person but only a right of private defence of property. In the exercise of the right of private defence of property however, the accused exceeded his right when by a lathi blow he killed the deceased He however convicted the accused under sec. 304 I. P. C. although in the circumstances of the case he did not find the accused guilty under sec. 302 I. P. C. Against this order of conviction and the sentence of three years' rigorous imprisonment and a fine of Rs. 150/- the accused has come in appeal to this Court. It was argued on behalf of the accused that the learned Sessions Judge was not justified in convicting the accused when he disbelieved all the eye-witnesses for the prosecution. It was argued that in the police report Ex. D-7 Jaisingh, Ganpatsingh, and Bhura were mentioned as the persons who had come to the spot at the time of the occurrence but they were with-held. It was also argued that among the witnesses mentioned in the report Ex. D-7 the names of Jagrupsingh, Nambardar, and Sultan-singh were also mentioned but they were also not produced. Only one witness i. e. , Dhumisingh who is mentioned in Ex. D-7 was produced but he was partial to Mst. Nihali and Ganpat. It was further argued that of the witnesses produced as eye-witnesses at the time of the trial only Mst. Nihali, Durjansingh and Dhumisingh were those whose presence at the time of the occurrence was disclosed by Ex. D-7. Other witnesses who were produced were not mentioned as eye-witnesses in the report and they have been simply produced to falsely corroborate Mst. Nihali and Durjansingh seeing that the witnesses who were really present would not support the prosecution story. It was further argued that all the prosecution witnesses who have appeared to give the account of the marpit have told lies. They have been consequently disbelieved by the learned Sessions Judge himself. The defence put forward by the accused was disclosed in the first information report made by him and it has been adopted by the prosecution as the first information report in the case. The accused struck to the same defence at the time of the so-called confession and also during the trial. The learned Sessions Judge has also partially accepted it in as much as he held that the interference by Mst. Nihali and Ganpat with the ploughing of the fields by the accused was uncalled for and the accused had a right of private defence of property under the circumstances of the case. The learned Sessions Judge was not justified in negativing the right of private defence of person to the accused, simply on the ground of the so-called confession and the suspicion that the injury which was found on the person of the accused at the time of medical examination on the 30th July 1951 was self-inflicted. On behalf of the prosecution it was argued that it was not necessary for the prosecution to produce all the witnesses mentioned in the first information report. It was necessary for the prosecution to produce only those witnesses who, it thought, would tell the truth. It was further argued that Jaisingh, Ganpat and Bhura belonged to the party of the accused and therefore the prosecution was not bound to produce such witnesses. It was further argued that there was no satisfactory evidence to show that Ganpat attacked the accused with a lathi and, therefore, the Sessions Judge was right in holding that the accused had no right of private defence of person. It was also argued that the accused had no right of private defence of property even, as his action in ploughing the field was unlawful. He was only authorised by the civil court to realise rents and pay the Government dues and deposit the balance in the Imperial Bank of India. He was given no right of actual possession of the property. I have considered the arguments of both the learned counsel. I agree with the learned Sessions Judge that the witnesses examined as eyewitnesses for the prosecution have not told the entire truth. They have stated that Ganpat became unconscious as soon as the lathi blow was dealt to him. They are belied in this statement by the first information report Ex. D-7 which was suppressed by the prosecution and had to be produced by the accused in his defence. That report clearly shows that it was made by Ganpat, Nihali and Durjansingh and that it was read over to them and admitted to be true. As a matter of fact the name of the informant given in the report is given as Ganpatsingh only although the report was thumb marked by Nihali and Durjansingh as well, besides Ganpatsingh. A support was sought from the statement of Sheotajsingh constable P. W. 8 the scribe of the report, who stated that at the time of the report Ganpatsingh was unconscious but on account of his inexperience the witness did not make a note to that effect and recorded the report as if it was dictated by Ganpatsingh. In this statement however Sheotajsingh was belied by the statement of his superior Shri Sajansingh P. W. 11, second Officer, Kotwali, Alwar, who was at the time of the report S. H. O. Kishangarh. He has clearly stated that when he came to the police station after the report had been recorded he found Ganpatsingh and his companions on a cart outside the police station and Ganpatsingh deceased had told him that a fight had taken place at the field and Prithvisingh had beaten him. The learned Sessions Judge was therefore perfectly justified in holding that this part of the prosecution evidence that Ganpatsingh became unconscious as soon as the blow was dealt to him was false. In the first information report Ex. D-7 Prithvisingh was alleged to have given only one lathi blow and that too on the head but in the later version three blows were alleged to have been given by the accused without any exchange of abuses or pushing. In Ex. D-7 it was admitted that there was an exchange of abuses and Ganpatsingh had also given a push to the accused when the latter pushed Mst. Nihali. No mention was made of Arjun Singh P. W. 6 as an eye-witness in Ex. D-7 but during the trial Arjun Singh was produced as an eye-witness. In the first information report D-7 it was not mentioned that the accused had beaten Mst. Nihali also but in the subsequent version the prosecution witnesses stated that Mst. Nihali was also beaten. In the face of all these facts it was certainly very difficult for the Sessions Judge to believe that the prosecution witnesses had stated the truth. The prosecution in the first instance suppressed the report made by the complaints themselves. The reason was obvious. The prosecution wanted to exaggerate the event and it was therefore not thought proper to produce the report. The witnesses who were mentioned as being present on the spot were not all intended to be produced. Some other witnesses had to be substituted whose names were not mentioned in the report. The best thing therefore which the prosecution thought was to suppress this report and produce the report made by the accused himself. The action of the prosecution was not straightforward and a good deal can be said in favour of the view of the learned Sessions Judge that the prosecution evidence was not believable. It is an ordinary principle of criminal law that a prosecution has to stand upon its own legs and an accused cannot be punished for the weakness of his defence. If the prosecution evidence is discarded, the only thing that can be said is that a lathi blow was dealt by the accused to the deceased. The accused has not denied it. He has been saying from the very beginning that Ganpat had dealt him a lathi blow. This is mentioned in Ex. P-l, the report made by Prithvisingh which curiously enough has been adopted by the prosecution as the first information report in place of Ex. D-7 made by the complainants. The prosecution having filed the report Ex. P-l itself as evidence for the prosecution,it was for the prosecution to prove that the statements made therein about Ganpatsingh having attacked the accused in the first instance with a lathi were untrue. There is no satisfactory evidence on behalf of the statement about self-defence of person made in the report Ex. P-l. The prosecution did not produce the so-called confession in the evidence before the court. It was filed by the accused although it was not necessary for him to do so when the prosecution itself had not relied upon it as confession. However, from that document also the theory of self-defence of person is not negatived. There too the accused stated clearly that when he was ploughing the field Mst. Nihali, Ganpat and Durjan Singh stopped him from doing so and when he did not comply Durjansingh gave him a lathi blow on which he had to defend his person by giving one lathi blow to the deceased. Curiously enough the learned Sessions Judge has acted upon the so called confession so far as there was some support from it for the prosecution, and rejected the exculpatory statements made therein I do not think it was fair for the learned Sessions Judge to do so. It was held by a Full Bench in the case of Balmukund vs. Emperor (1) (A. I. R. 1931, All. 1.) that - "where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the Court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible".
(3.) THE learned Sessions Judge while holding that the accused had a right of private defence of property has negatived the right of private defence of person to the accused which was claimed on the following grounds: (1) the report of the accused Ex. P-l made in the thana. (2) the confessional statement Ex. D-14 of the accused. (3) the statement of Banwari P. W. 7 and Jaisingh P. W. 8. (4) the injury on the left shoulder of the accused. As regards report Ex. P-l the learned Sessions Judge says that the accused had not mentioned in that report that he had given a blow to Ganpat's head. He also says that although in the report the accused had said that Sheolal and Hira intervened but he did not produce these witnesses. There is no doubt that the accused did not admit that he gave a lathi blow to the deceased in the report Ex. P.-l. He has however clearly said therein that Ganpatsingh dealt him a lathi blow. No doubt he did not straight forwardly state in the report that he had given a lathi blow to the deceased after the blow which was received by him. But that does not show that the theory of the accused being hit by the deceased by a lathi was an afterthought. This is clearly mentioned therein and so the right of private defence claimed at the trial could not be negatived on account of omission of the mention of a blow from the accused to the deceased. The learned Sessions Judge says about the confessional statement that therein the accused gave out that Ganpatsingh's first lathi blow was held by him on his lathi but the second lathi blow from Ganpatsingh landed on his left shoulder. No mention was made in this statement about Ganpat dealing a lathi blow to the accused on his buttocks as, was mentioned in the first information report Ex. P-l. The two documents therefore contain inconsistent statements. It may be that the mention of a blow by Ganpat to the buttocks was not mentioned in the confessional statement but so far as the blow on the back of the accused was concerned it was mentioned in both the documents. Both, the first information report Ex. P-l as well as the confessional statement disclosed that two blows were dealt by Ganpatsingh to the accused. It was not right for the learned Sessions Judge to accept certain parts of the so-called confessional statement which helped the prosecution and reject those which helped the accused. It is not proved that any of the statements in the so-called confession were ostensibly untrue and under the circumstances according to the authorities cited above it ought to have either totally been rejected or it ought to have been acted upon as a whole, About the statement of Banwari P. W.-7 the learned Sessions Judge says that his statement should be altogether discarded because no mention of his name was made in Ex. P-1 nor was any mention of him made in the confessional statement Ex. D-14. The learned Sessions Judge also says that the latter version that Banwari had snatched the lathi from the accused was also not given in Ex. D-4. Banwari was however produced by the prosecution itself in order to prove that he had snatched lathi Ex. P. G. from the accused at the time of the occurrence. The prosecution cannot turn round and say that Banwari had no knowledge of the incident, because it is nowhere said by the prosecution that the lathi was snatched by Banwari at some other place. Mst. Nihali herself says that the carpenters had concealed the lathi with which the accused had delt a blow to Ganpat although she does not mention specifically the name of Banwari. Banwari is a carpenter and the lathi Ex. P-l was produced by him before the police and the prosecution put this lathi forward as the weapon of offence, simply because Banwari admitted in his statement before the court that a blow was first given by Ganpat deceased to the accused & the accused dealt a blow to the deceased after he had himself been hit he could not be said to be a witness hostile to the prosecution. If this were to be accepted then any witness whose statement goes in some respect in favour of the accused can be said to be a hostile witness. Because something has come in. favour of the accused from the mouth of the prosecution witness, his statement cannot altogether be discarded. Banwari is supported in his statement by Jaisingh D. W.-8 who has stated that Ganpat gave a lathi blow to the accused first and then the accused dealt Ganpat a lathi blow. There are other defence witnesses also to the same effect but I do not take their statements into consideration, because Jaisingh at least is one of those witnesses who were mentioned to have witnessed the occurrence in the report Ex. D-7 itself, made by Ganpat and Mst. Nihali. The learned Sessions Judge rejected the statement of Jaisingh on the ground that he was in some way related to the accused but that alone was not a sufficient reason. Again he was disbelieved on the ground that the accused said that he was assaulted from the front while Jaisingh says that he was assaulted from behind. In the heat of the marpit it could not be said that simply because a witness could not notice the exact position from where the assault was made he cannot be believed. The learned Sessions Judge has held that Jaisingh was not an eye-witness but he forgets that he is mentioned as the person present on the spot at the time of the occurrence in the report made by Ganpat and Mst. Nihali themselves. Another ground on which the learned Sessions Judge held that here was no right of private defence of person to the accused is that in his opinion the injury found on the back of the accused at the time of the medical examination was self-inflicted some time after the occurrence. The learned Sessions Judge says that the police official who recorded the report made a note that on examining the injuries he did not find any swelling on the person of the accused. The note is very ambiguous, It does not say positively that no injury was found on the person of the accused. If there were no injuries, where was the difficulty in saying that no injury was found. To say that on examining the injuries no swelling was found does not negative the version of the accused that there existed an injury. It is not necessary that there should be swelling whenever any injury is received. There might be, no swelling and yet there might be an injury. By the police note therefore the presence of the injury on the back is not altogether negatived. According to the medical evidence an injury was found on the back of the accused and it appeared to have been caused by a blunt weapon. The learned Sessions Judge however says that the Medical Examiner said in re-examination that it could be caused by rubbing the back against the wall as well. He has also said in the injury report that the injury was said to be 72 hours old on the 30th July 1951 and therefore it was argued that it was caused about 2 days after the 'occurrence. Although the Medical Examiner was a prosecution witness yet the learned Sessions Judge accepted that part of his statement only which helped the prosecution and rejected that portion which helped the accused. The witness clearly stated that the injury appeared to be caused by a blunt weapon although in re-examination he also said that it could be possibly caused by rubbing against a wall. The ordinary rule is that if a prosecution witness says two things one in favour of the prosecution and the other in favour of the accused the one in favour of the accused should ordinarily be preferred to that deposed to in favour of the prosecution. I do not think that the learned Sessions Judge should have gone against this wholesome principle. As regards the duration also the Medical Examiner admitted that it could be 5 days as well. This statement helped the accused but here too the learned Sessions Judge rejected this portion which helped the accused. On giving my careful consideration to the entire evidence on the record I fully agree with the learned Sessions Judge that the prosecution evidence) was unreliable and could not be believed. I also agree with him on a perusal of the documentary and oral evidence on the record that interference by Mst. Nihali and Ganpat was uncalled for and that the accused had a right of private defence of property. I however do not agree with him that the defence of the accused so far as it relates to the private defence of person cannot be given effect to. The prosecution tried its best to prevent the true facts from coming before the court. It produced demonstrably false evidence, with-held some of the important witnesses who were undoubtedly present at the time of the occurrence and substituted others whose presence was at least very doubtful. The accused took up a consistent defence from the very beginning that he was attacked by Ganpat with his lathi and in order to save himself he dealt a lathi blow to Ganpat. In this he was supported not only by defence evidence but also by the witness Banwari of the prosecution itself. He was also supported to some extent by medical evidence, which proves an injury on his back. But the question of injury was not of much consequence. The accused had a right of private defence of his person even though a lathi was aimed but did not actually hit him. Under sec. 100 I. P. C. the right of private defence of the body extends to the voluntary causing of death, if the offence which occasions the exercise of the right be such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Even though a lathi was only aimed and not actually struck by the deceased the accused could have reasonable apprehension of a grievous hurt being caused to him. He dealt only one lathi blow on the deceased although it unfortunately proved to be fatal. But that does not take away the right of private defence of the accused which he had under the circumstances. It was held in Chhattar vs. Emperor (1) (A. I. R. 1929 All. 897.) that "where in a marpit brought about by the illegal act of the dead person himself the accused while resisting the attack of the deceased happens to hit him on the head rather harder than perhaps he intended to have done and thus kills him, he cannot be said to be exceeding his right of self-defence and should not be convicted. " In Rameshwar and others vs. Emperor (2) (A. I. R. 1936 Oudh 375.) it was held that where the accused was in lawful possession of a field and that the deceased and his partisans were the aggressors and tried forcibly to dispossess him and both sides were armed with lathis, the accused was not guilty in resisting the aggression and causing the death of two of the aggressors, because the deceased who were armed with lathis did cause a reasonable apprehension in the minds of the accused that unless they were resisted they would cause death or at least grievous hurt to him and therefore he was entitled, in exercise of the right of private defence of person and property, to cause voluntary death of the aggressors. ;