M. L. SHRIMAL, J. - (1.) APPEAL No. 511 of 1979 filed by Ramcharan alias Noliya and appeal No. 523 of 1971 filed by Nand Kishore arise out of the same judgment, as such they are being disposed of by a common order.
(2.) BOTH these appeals are directed against the judgment dated June 26, 1978 of learned Sessions Judge, Jhalawar whereby he convicted accused Ram Charan under section 302 I P. C. for committing the murder of Shankerlal and sentenced him to imprisonment for life and a fine of Rs. 1,000/-, in default of payment of fine to further suffer one week's imprisonment. The accused was also convicted under section 323 I. P. C. and sentenced to one month's imprisonment. The substantive sentence of imprisonment were ordered to run concurrently. Rest of the accused Kishan Lal, Nand Kishore, Chaturbhuj & Nanda were convicted under sections 323, 324, 324 and 323 respectively, out of whom accused Chaturbhuj was given benefit of Probation of Offenders Act. Accused Nanda and Kishan Lal were convicted under section 323 I. P. C. and were sentenced to the term of imprisonment already undergone by them whereas accused-appellant Nand Kishore was convicted under section 324 I. P. C. and sentenced to two years' rigorous imprisonment. We are not required to discuss in detail the evidence examined on behalf of the prosecution and consider all the circumstances put forth by the prosecution as the learned counsel appearing on behalf of" the accused appellant has conceded that both Ramcharan and Nand Kishore participated in the assault which took place on 5. 9. 77 in village Khakkavasa at 4 a. m. and during course of that occurrence Ramcharan sustained fatal wound. As regards Nand Kishore, learned counsel submits that he was convicted under section 324 I. P. C. and as he has already undergone sentence awarded to him by the trial court and has been released from jail, he does not want to press his appeal. The short question which remains for our consideration is whether accused Ramcharan in the facts and circumstances of the case can be held to be entitled to the right of self defence to person. There is no dispute between the parties on the point that during the course of the same incident Shankerlal (since deceased ). Bhairu PW. 1, Mathura PW. 2 and Chothmal PW. 5 sustained injuries on the side of the prosecution and accused Chaturbhuj, Nand Kishore, Ramcharan and Kishanlal sustained injuries on the side of the accused. In this case the prosecution examined 14 witnesses out of whom P. W. 1 Bhairu, P. W. 2 Mathura, P. W. 5 Chothmal, P. W. 6 Mst. Pushpa Bai and P. W. 7 Nand Kishore son of Laxmi Narain were examined as eye-witnesses of the occurrence. P. W. 4 Dr. Dharroop Mal is the person who had performed the autopsy on the dead body of Shankar Lal and clinically examined other prosecution witnesses who suffered injuries at the hands of the accused. P. W. 14 Mohan Lal is the Investigating Officer of this case. All the accused denied their complicity in the crime and examined two witnesses in support of their defence. Dr. Prem Kumar was examined to prove the injuries of the accused. A perusal of the statement of Dr. Prem Gupta show that above-mentioned accused must have sustained injuries during the course of the same occurrence. Admittedly none of the prosecution witnesses has explained the injuries sustained by the accused. In total the accused sustained 14 injuries. The nature of the injuries sustained by the accused is not such which can be termed to be superficial or minor one. The evidence examined in the case on behalf of the prosecution is that of interested witnesses and as such the injuries sustained by the accused cannot be brushed aside easily and the non-explanation of the injuries sustained by the accused does have a bearing on the prosecution case. As the prosecution has suppressed the genesis and the original of the occurrence, the defence set up by the accused stands highly probablised. Learned counsel appearing on behalf of the State after thorough examination of the evidence has rightly conceded on the point that the accused are entitled to right of self defence, but his main contention is that even if they had a right of self-defence to person, they could not have caused the death of Shankarlal and they exceeded in right of self-defence. We find sufficient merit in the above contention of the learned Public Prosecutor. A perusal of the injuries sustained by the accused thus shows that there was no imminent danger for the accused to imagine that the members of the prosecution party would cause there death or would certainly cause fractures. The law regarding the right of private defence of person is well settled and may briefly be recapitulated here. The onus is on the accused to establish this right not on the basis of the standard of proofing it beyond doubt. But on the theory of preponderance of probability the accused may or may not take this plea explicitly or might or might not adduce any evidence in support of it. But he can succeed in his plea if he is able to bring out material on the record of the case on the basis of the evidence of the prosecution witnesses or on other place of evidence to show that apparently the criminal act which he committed was justified in exercise of right of private defence of person, but the exercise of this right is subject to the limitations and exception provided in section 99 of the Indian Penal Code. Such one being "the right of private defence in no case exceeds to the inflicting of more harm than it is necessary to inflict for the purpose of defence". As to when the right of private defence of the body extends to causing death is provided for in section 100 Appellant's case is not covered by it as already held above. In the view which we have expressed above, we think that the appellant had the right of private defence of his body and the body of his associates to a limited extent subject to the restriction mentioned in section 99. This did not extend to the inflicting of so much harm to Shankerlal as causing his death. A mere claim of apprehension of death or grievous hurt is not enough. The accused-appellant made an assault on the deceased while exceeding his right of private defence by which death was caused and the injury suffered by the deceased was found sufficient in the ordinary course of nature to cause death and as such his case stands guilty of the offence punishable under section 304 Part I of the Indian Penal Code.
(3.) THE net result of the above discussion is that the conviction of the accused-appellant Ramcharan is set aside. Instead he is convicted under section 304 Part I of the Indian Penal Code and sentenced to suffer an imprisonment for a period of five years. THE appeal filed by accused Nand Kishore is rejected. It is, however, made clear that the accused-appellant will be entitled to the benefit of section 428 Cr. P. C. and the term of the imprisonment suffered by him during the course of investigation, inquiry or trial shall be set of against the term of sentence awarded by this Court. The appeal filed by Nand Kishore (appeal No. 523 of 1978) is dismissed and the appeal filed by accused-appellant Ramcharan (appeal No. 511 of 1979) is partly allowed as indicated above. . ;