- (1.) THIS in an appeal by Dhoora, Bhera, Thakra and Adu against their conviction and sentence under secs. 304 read with secs. 34 of the Indian Penal Code and secs. 447 of the Indian Penal Code by the learned Additional Sessions Judge, Jalore. Appellant No. 1 i. e. Dhoora has been found guilty under sec. 304 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years and a fine of Rs. 500/ -. He has been further sentenced to three months' rigorous imprisonment under sec. 447 of the Indian Penal Code. The remaining appellants have been sentenced to four years rigorous imprisonment and a fine of Rs. 100/- each under sec. 304 read with sec. 34 of the Indian Penal Code and to further rigorous imprisonment for three months each under sec. 447 of the Indian Penal Code.
(2.) THE incident out of which this case arose took place in the morning of 31st December, 1960 at Kabuli-ki-Dhani village Gundao Tehsil Sanchore. Two reports were made about this incident one by Harji on 1st January, 1961 at Police Station Sanchore and the other on the same day at 10 a. m. by Shri Anandsingh, Station House Officer. THE police submitted two separate challans on these reports. THE challan in the present case was submitted on the investigation made on the report of Harji. In the report lodged by Harji the case disclosed was that the present appellants along with three other persons namely Surjan son of Kana, Lala son of Phaglu and Dhola son of Phaglu armed with Dharias and lathis with the common object of beating Haru reached his house in the morning of 31st December, 1960 and told him that they would beat him as he had been helping Jai Kishen's party and thereafter, Dhoora appellant dealt a blow with a Dharia on the head of Haru and the remaining persons also gave him kicks. It was also stated that these persons also caused injuries to Naringa, Jodha and Mangla. The witnesses examined on behalf of the prosecution did not stick to this case and the learned Additional Sessions Judge found that this report was false. He held that the seven persons named in the report did not go together to the house of Haru. According to the prosecution evidence at the trial, the prosecution case was that Anand Singh (P. W. 7) along with two camel sawars Dhansingh (P. W. 1) and Devisingh (P. W. 6) had reached Kabuli-ki-Dhani on the evening of 30th December, 1960 for the purpose of arresting Bharia, Jodha and Hiria against whom warrants of arrest are said to have been issued in criminal case No. 51 of 18th December, 1960 for offences under secs. 458, 147, 324 & 325 of the Indian Penal Code. That night these police officers stayed at the house of Phaglu and were informed that the three wanted persons were at the house of Haru situate in the same Dhani at a distance of about 150-200 paces from there. Shri Anandsingh early on the next morning started for Haru's house in order to apprehend Bharia, Jodha and Hiria and took Surjan (D. W. 1) and Choga (D. W. 2) along with him to point out his house. Dhansingh was asked to stay on one side of the house while Shri Anandsingh, Devisingh and Surjan entered the court-yard of Haru's house. Shri Anandsingh then called out Haru and asked him to surrender Bharia, Jodha and Hiria who were in his house. According to Shri Anandsingh and Devisingh (P. W. 6) Haru, Bharia, Jodha and Hiria came out. The other prosecution witnesses namely, Mangla, Jodha, Naringa and Mst. Gavri din not admit the presence of Bharia, Jodha and Hiria in the house at that time. According to Shri Anandsingh these four persons were carrying arms with them when they came out. Bharia, Jodha and Haru had lathis with them while Hira had a Dharia. Devisingh (P. W. 6) stated that Haru was carrying a girl in his lap at that time. Shri Anandsingh and Devisingh both state that Haru rebuked Surjan for having brought the police, party to his house. Shri Anandsingh stated that the four persons i. e. Haru, Bharia, Jodha and Hiria made an attack upon Surjan on which he cried out which brought the appellants to the place of occurrence on one side and near about the same time Mangla, Naringa and Jodha prosecution witnesses arrived there and they started fighting with each other. Devisingh and the remaining prosecution witnesses do not however, state that any attack was made upon Surjan by these persons. Mst. Gavri (P. W. 5) has also admitted that the police Sub-Inspector with two constables along with Surjan and Adura had come to her house and Surjan had come inside the court-yard and asked her husband i. e. , Haru whether he had concealed some culprits in his house. Haru replied that no such persons were there and if he liked, he could search his house. The police party searched the house, but the wanted persons were not found there. Thereafter, Haru protested to Surjan why he had unnecessarily brought the police party to his house and on this some verbal altercation ensued between the two. She also admitted that Surja cried out 'run up, run up and he should be taught a lesson'. Thereupon the appellants came to the place of occurrence. According to her Dhoora had a Dharia in his hand and he gave a blow on the head of her husband as a result of which he fell down. The learned Additional Sessions Judge has not wholly believed the version given by Shri Anandsingh. He is of the view that Shri Anandsingh had tried to help Surjan's party i. e. , the accused. He has however, found that Shri Anandsingh Sub-Inspector, Devisingh Police constable and Dhansingh Police constable and Surjan had initially gone to Haru's house. He has also found that Jodha, Bharia and Hiria who were required by the police also came at the house of Haru. He has further found that though the present appellants had not accompanied the police officers yet they were lying in wait at some place near the house of Haru and they were armed with lathis and Dharias. He has held that the appellants had reached the place of occurrence before the arrival of the prosecution witnesses i. e. , Mangla, Naringa and Jodha and the fighting Started after the appellants had reached there. He has come to the conclusion that it was a case of free fight between two rival factions in which Dhoora appellant gave a blow to Haru with a Dharia on his head which resulted eventually in his death. He has held that Dhoora and the other appellants had a common intention to beat Haru and the Dharia blow was inflicted by Dhoora in furtherance of that common intention. He has also found all the appellants guilty of committing criminal trespass. The case of the appellants was that on hearing the cries of Surjan they had gone to Haru's house one by one and did not carry any arms with them. All of them stated that they received injuries at the hands of the other party while rescuing Surjan and then came back from there. The main contention of the learned counsel for appellants is that it was not a case of free fight between the parties but was one where Haru's party was the aggressor and the appellants were entitled to the benefit of right of private defence of person even if it be found that Dhoora inflicted a Dharia blow on the head of Haru. It is urged that the learned Additional Sessions Judge did not decide the real question which required determination as to which party was the aggressor. It is also urged that there is no evidence that the injury on the head of Haru was inflicted by Dhoora in furtherance of the common intention of all the accused. It is urged that even Dhoora cannot be held responsible for causing injury on the head of Haru because the prosecution evidence on this point is not trustworthy. It is urged that the appellants entered Haru's house in order to rescue Surjan and had no intention to insult, intimidate or annoy Haru and their conviction under sec. 447 of the Indian Penal Code is unjustified. The questions therefore, which require determination are: 1. Whether the appellants can be held guilty for committing criminal trespass when they entered Haru's house. 2. Whether Dhoora appellant inflicted injury on the head of Haru with a Dharia which resulted in his death. 3. Whether the injury was inflicted by Dhoora in furtherance of the common intention of all the appellants. 4. Whether the appellants can claim the benefit of the right of private defence of person inasmuch as they had gone to the rescue of Surjan. I have considered the evidence of both sides. It is clear that Shri Anand Singh was engaged in a lawful purpose when he entered Haru's house for the arrest of persons against whom warrants had been issued in a criminal case. Shri Anand Singh has stated that he had asked Surjan to accompany him to point out Haru's house. It is equally clear and is admitted by Devisingh that Surjan had neither any Dharia nor any lathi with him. It is also not alleged that Surjan inflicted any injuries on the other party. In these circumstances it cannot be said that Surjan's entry in the house of Haru along with the Sub-Inspector was unlawful and was in order to insult, annoy or intimidate Haru. It is not borne out from the record that Sri Anandsingh had any knowledge of the strained relations between the parties. The learned Asstt. Govt. Advocate has contended that Surjan should have retired after he had pointed out Haru's house to the Sub-Inspector but the evidence discloses that as soon as the Sub-Inspector called out Haru and asked him to send out the three required persons, all of them came out and started reprimanding Surjan as to why he had brought police party to their house. At that moment whether on account of any attack made upon him or merely on apprehension, he cried out, which brought the appellants to the place of occurrence. The appellants while going to Haru's house could not have intended to cause any insult, annoyance or intimidation to Haru in these circumstances. They went there upon hearing Surjan's cries and apparently to rescue him. Therefore, even if they were carrying arms with them it cannot be said that their entry in Haru's house was unlawful. Now I consider the question whether it was Dhoora who inflicted a Dharia blow on the head of Haru. Dhansingh (P. W. 1) does not say that he saw Dhoora inflicting injury on the head of Haru. He has stated that Dhoora and Bhera had Dharias in their hands and the rest had lathies with them. He could not see properly because he was at some distance, but he heard the cries of Haru's wife that her husband has been killed. Mangla (P. W. 2) has stated that Dhoora dealt a Dharia blow on the head of Haru but much reliance cannot be placed on the evidence of this witness in view of the statements made by Jodha (P. W. 3) and Naringa (P. W. 4 ). Jodha (P. W. 3) stated that his house was at a distance of about ten paces from Haru's house and while has was sitting there he heard the cries of Haru's wife that Dhoora had killed her husband with a Dharia. He states that when he heard the cries of Haru's wife his brother Mangla i. e. , P. W. 2 was feeding the cattle at his house. This shows that Mangla's statement that he saw Dhoora inflicting the injury on Haru's head was not correct. Similarly, Naringa ''p. W. 4) stated that he was warming himself near the fire in his house and Jodha and Mangla i. e. . P. W. 3 and P. W. 2 were also sitting with him when he heard the noise from Haru's house. He, therefore, went to Haru's house and saw Haru lying in his court-yard and blood was flowing from his head. This again shows that Mangla's statement was incorrect. Mst. Gavri (P. W. 5) has clearly stated that it was Dhoora appellant who inflicted Dharia blow on the head of her husband. Devisingh (P. W. 6) stated that the accused Dhoora and Thakra were carrying Dharias with them. He also stated that Dhoora appellant struck a Dharia blow on the head of Haru as a result of which he fell down. Shri Anandsingh (PW 7) did not state as to who caused the injury on the head of Haru. Therefore, there is positive evidence of Mst. Gavri and Devi Singh that Dhoora was responsible for causing head injury with a Dharia to Haru. Mst. Gavri would only name the person who actually inflicted injury on her husband's head and there is no reason why her statement should be disbelieved. Devi Singh also is an independent witness and he corroborates the statement of Mst. Gavri. The other prosecution witnesses have also stated that Dhoora had a Dharia with him at the time of occurrence. Therefore, the evidence of above two witnesses establishes beyond reasonable doubt that Dhoora appellant had inflicted the fatal injury with Dharia on the head of Haru. The next question is whether Dhoora committed the crime in furtherance of the common intention of all the appellants. The learned Additional Sessions Judge has found that the appellants and Surjan had a prior plan to beat Haru and for that end they were standing near his house armed with weapons. I am unable to agree with the finding of the learned judge on this point. There is no evidence of any immediate cause which might have precipitated this fight. There might have been two parties in the village but that is not an abnormal feature in democratic countries. What role the appellants played in the party is not known. The leader of the other party is said to be one Jai Kishan but there is no evidence how and when Haru had helped him which annoyed the appellants and actuated them to commit this crime. If the appellants intended to beat Haru they could have accompanied the police party and taken advantage of their presence for achieving their purpose but as stated earlier even Surjan did not carry any arms with him which shows that there was no intention on his part to indulge in any fight. There is also no evidence that the appellants had designedly stayed back and allowed the police party and Surjan to go ahead in search of the wanted persons. The police officers examined in the case do not state that the appellants had come with them and had stayed behind at some place near Haru's house so that they might come later on in case any eventuality arose. The prosecution case as disclosed in the first information report that in all seven persons had gone to Haru's house has been found false by the court below. Even Mst. Gavri (P. W. 5) admitted that the appellants had reached the place of occurrence after Surjan had cried out. It is true that in order to prove common intention, it is not necessary nor always possible to prove that there was a pre-arranged plan between the accused to commit the offence and that common intention can develop suddenly and on the spot and can be gathered even from circumstantial evidence. The learned Judge came to the said conclusion because he thought there was evidence that the appellants were at the camp of Shri Anand Singh, Station House Officer at Phaglu's Dhani before the latter started for Haru's Dhani to arrest the required persons. Secondly because they arrived immediately at Haru's house armed with Dharias and lathis on hearing the cries of Surjan which could only be possible if they were waiting at some place near Haru's house and not at Thakra's house as stated by them. From the above he also drew an inference "that Surjan and the appellants had decided to get Hiria, Jodha son of Jeevan and Bhera son of Abha arrested by the police and if they resisted or any other contingency,arose they were pre-determined to assault them and give them a good beating and it was in pursuance of this common intention that two persons first went inside the house of Haru along with the Station House Officer Shri Anand Singh while the remaining accused stood in wait for the signal to get from Surjan. " In my view the evidence on record does not justify the inferences drawn by the learned Judge. Firstly, there is no evidence as the learned Judge seems to think that Adu, Thakra, Dhoora and Bhera son of Sunda were at Phaglu's Dhani when Shri Anand Singh started for Haru's house. Surjan (D. W. 1) has denied this. Shri Anand Singh has also not stated that the appellants were there or that he had asked them to accompany him. Apart from that if the intention of Surjan and the appellants had been to beat Haru, Surjan would not have gone to his house without taking any arms with him. The two constables were carrying rifles and the Sub-Inspector had a pistol with him and there is nothing to show that the required persons were desperate characters from whose arrest the police officers required further help from the appellants. There is also nothing to show that the police party anticipated any resistance from the required persons at the time of their arrest. One of the prosecution witnesses i. e. Devi Singh Constable has stated that the appellants had reached Haru's court-yard 8 or 10 minutes after Haru's companions had come out. If that is so, then there is not the least justification for saying that they were lying in wait at some place near Haru's house. Adu appellant has stated that when he heard Surjan's cries, he was at the village tank, while Bhera, Thakra and Dhoora have stated that they were sitting at the house of Thakra. No evidence to the contrary was led by the prosecution to show that all of them were sitting at one place from before. There is therefore, no direct or circumstantial evidence from which an inference of common intention of the appellants to commit the offence can be drawn. The only obvious reason which brought them to the place of occurrence was that they heard the cries of Surjan and thus came there with whatever weapons they could lay their hands upon at that time. The medical evidence shows that Haru had only one injury on his head caused by a single blow. If other appellants had shared the common intention then they would have also inflicted further blows on Haru. This fact al)so shows that they had no common intention. There is therefore, neither any motive for the crime nor circumstantial evidence indicative of common intention. So far as Bhera, Thakra and Adu are concerned, they have not been punished for any act of their own but for the act committed by Dhoora appellant and have been found guilty under sec. 304 read with sec. 34 of the Indian Penal Code. But if they did not share the common intention they cannot be punished of this offence. The next question, therefore, is whether Dhoora was justified in causing this injury in exercise of the right of private defence. The contention of the learned counsel for the appellant is that the injury was inflicted by Dhoora at the time Surjan was being assaulted by Haru, Hiria, Jodha and Bhera and other persons and there was an apprehension of grievous injury being caused to him. Dhoora's right of private defence, therefore, extended even to the causing of death. The learned Additional Sessions Judge has not considered the question of right of private defence because in his view it was a case where both parties indulged in a free fight. He has referred to several cases to show the meaning of a free fight. In the case of Ahmad Sher Vs. Emperor (l) Harrison, J. observed that - "a free fight is one when both sides mean to fight from the start; go out to fight and there is a pitched battle. The question: of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival commanders. Before a fight can be described a free fight it must satisfy the tests laid down in the above case. Every fight between two parties where both sides receive injuries cannot be called a free fight. Where the fight is not premeditated and there is no question of vindication of right or supposed rights by force but is only spontaneous arising out of a sudden altercation, it would be incorrect to call it a free fight. It cannot be said in the present case that both parties were pre-determined to fight and had gone out to fight. It has already been stated that the appellants had no intention to fight and they were attracted to the scene of occurrence after they had heard the cries of Surjan. They had gone there to rescue Surjan and not for the purpose of fighting. If by coincidence some persons belonging to other party came there and both parties clashed with each other it cannot be said that there was free fight between them. I am unable to agree with the view taken by the learned Judge that there was a free fight between the parties. That being so it is to be seen whether the contention of the learned counsel for the plea of right of private defence can be accepted in this case. Secs. 97, 100, 101 and 102 of the Indian Penal Code relate to the right of private defence of one's own body, and the body of any other person, against any offence affecting the human body. The basic assumption underlying the law of self defence has been described thus by the Supreme Court in Criminal Appeals Nos. 56 and 57 of 1962, decided on 30th July, 1962 (Jai Dev and Hari Singh Vs. State of Punjab ). "in a well-ordered civilised society it is generally assumed that the State would take care of the persons and properties of individual citizens and that normally it is the function of the State to afford protection to such persons and their properties. This however, does not mean that a person suddenly called upon to face an assault must run away and thus protect himself. He is entitled to resist the attack and defend himself. The same is the position if he has to meet an attack on his property. In other words, where an individual citizen or his property is faced with a danger and immediate aid from the State machinery is not readily available, the individual citizen is entitled to protect himself and his property. That being so, it is a necessary corollay to the doctrine of private defence that violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not excted its legitimate purpose. The exercise of the right of private defence must never be vindictive or malicious. There can be no doubt that in judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the uppermost feeling in his mind would be to ward off the danger and to save himself or his property, and so he would naturally be anxious to strike a decisive blow in exercise of his right. It is no doubt true that in striking a decisive blow he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force' is used than is necessary or than was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a court room, for instance, long after the incident has taken place. That is why in some judicial decisions it has been observed that the means which a threatened person adopts or the force which he uses should not be weighed in golden scales. To begin with, the person exercising a right of private defence must consider whether the threat to his person or his property is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right. In the exercise of his right, he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. So long as the threat lasts and the right of private defence can be legitimately exercised, it would not be fair to require,as Mayne has observed, that 'he should modulate his defence step by step, according to the attack, before there is reason to believe the attack is over (Mayne's Criminal Law of India 4th En. P. 231 ). The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run away for safety. It entitles him to defend himself and law gives him the right to secure his victory over his assailant by vising the necessary force. This necessarily postulates that as soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence. If the danger is continuing, the right is there; if the danger or the apprehension about it has ceased to exist, there is no longer the right of private defence (vide S3. 102 and 105 of the Indian Penal Code.)"
(3.) THE right of private defence is however, subject to the provisions contained in sec. 99 of the Indian Penal Code which lays down that - "there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities" In cases where there is no urgency and the danger is not imminent and effective help can be secured by having recourse to the protection of the public authorities, there is no right of private defence. Where however, there is a sudden attack upon a person it is not expected that he should submit to aggression but he can retaliate and use reasonable force to avert the danger. In the present case it is urged by the learned Assistant Government Advocate that as one Sub-Inspector of Police and two camel sawars were present on the scene of occurrence and thus the protection of public authorities was available, the appellants had no right of private defence. THE question is whether mere physical presence of the public authorities at the place of occurrence in all cases would deprive a person of his right of private defence. THE principle underlying the restriction on right of private defence is that people should not take the law in their own hands if they can have recourse to public authorities for the adequate protection of their person and property because it is the primary function of the State to protect the people from unlawful aggression. But where the public authorities on account of their incompetence, imbecility or any other such cause are unable to avert the danger to the person and property of an individual, his right of private defence is not lost. It cannot, therefore, be laid down as a general rule that a person is deprived of his right of private defence simply because the public authorities are available at the scene of occurrence. It is therefore, to be seen in the present case whether there was any actual threat or not to the person of Surjan when Dhoora and his companions reached the place of occurrence. If the threat was still there and the appellants could reasonably apprehend that grievous injury was likely to be caused to Surjan then they were justified in protecting his person from further injuries by using force to the extent of causing death. But if there was no danger to the person of Surjan and his assailants had run away from that place or effective protection could be had from the public authorities, present there, in that case the appellants would not have any right of private defence. THE evidence has therefore to be examined in the light of above considerations. There is no doubt that the appellants have not clearly pleaded the right of private defence but they are entitled to rely upon the prosecution evidence for establishing their right of private defence. This is beyond controversy that Surjan had gone with the Sub-Inspector of Police to point out Haru's house where Hiria, Jodha, and Bhera were said to be staying at that time. It is also clear from Devi Singh's statements as stated above, that Surjan was not carrying any arms with him. It is also clear and is admitted by Mst. Gavri herself that the police party had enquired about Hiria, Jodha and Bhera. Thereupon Haru had come out from the kitchen and there was an exchange of the abuses between Haru and Surjan. It is also admitted by Mst. Gavri that Surjan had raised cries. There is however, divergence in the prosecution evidence as to whether Bhera, Jodha and Hiria were present in Haru's house and they along with Haru had made an attack upon Surjan due to which he raised cries. Mangla (P. W. 2), Jodha (P. W. 3), Naringa (P. W. 4) and Mst. Gavari (P. W. 5) denied the presence of Bhera, Jodha and Hiria as also the fact that any attack was made by these persons and Haru upon Surjan. They even denied that Surjan received any injuries during that fight. Mst. Gavari is the widow of Haru and the three remaining witnesses are his cousins and they are naturally interested witnesses. The other evidence is that of the police officers. Shri Anand Singh has stated that when he called out Haru to send the required persons outside, Bhera, Jodha, Hiria and Haru came out armed with lathis and a Dharia. On seeing Surjan, Haru said that why he had brought the police party and thereafter these four persons attacked Surjan. Thereupon hearing the cries of Surjan, Dhoora, Bhera and Adu came in the Angan of Haru. In cross-examination he was asked whether he had made the report Ex. P. 1 about this incident and he admitted that he had sent that report to the Police Station, Sanchore. This report was made soonafter the incident. In this report it was stated by Shri Anand Singh that above named four persons had actually started beating Surjan before the appellants reached the place of occurrence. Dhan Singh (P. W. 1) does not state having seen Bhera, Jodha, and Hiria inside Haru's house. He also does not state that Surjan was beaten before the appellants arrived there. He says that Haru told Surjan why he had brought the police officers to his house unnecessarily. Thereafter the appellants came from the side of Phaglu's house and though he asked them not to go towards the side of Haru, yet they paid no heed and went near the Sub-Inspector. He says that he could not bee the beating properly as he was at a distance, but he heard the cries of Haru's wife that her husband had been killed. By his evidence he wanted to prove that it was Haru who was first assaulted by the appellants. In cross-examination he was asked whether he saw any injuries on Surjan's person. He replied that Surjan was lying in the Angan of Haru but he did not see any injury on his person. This was obviously a false statement because Surjan had five injuries on his body. One was a lacerated wound bone deep 3"xl/8" just below the right parietal eminence, a fracture of bone of upper one third of ulna and two contusions and a swelling. He was also confronted with his previous statement made before the investigating officer wherein he had stated that "on the request of the Sub-Inspector, Haru, Bhera, Jodha and Hiria came out in the chowk. Bhera had a Dharia while the remaining were armed with lathies, (Ex. D. 1, A-B) and further 'when they leaped towards Surjan for killing him and began to beat him'. It is therefore, clear that this witness has resiled from what he had stated during investigation. Devi Singh (P. W. 6) who was present in the court-yard stated that when Shri Anand Singh called out Haru and asked him to send out Bhera, Jodha and Hiria, thereupon Haru, Bhera, Jodha and Hiria came out of the kitchen. At that time a girl was in the lap of Haru. Haru rebuked Surjan for bringing the police party into his house unnecessarily. They began to abuse each other. Then Bhera, Thakra, Dholia, Dhoora and Adu appellants also came in the Angan. Dhoora then struck a Dharia blow on the Head of Haru. He also therefore, tried to prove that the appellants had initiated the assault and it was Haru who was beaten first. In cross-examination he stated that Surjan was not beaten as soon as Haru and others came out of the kitchen. But further in cross-examination he stated that the Thanedar Shri Anand Singh came forward to arrest the accused persons and when the Thanedar proceeded further to arrest the accused Jodha, Hiria and Bhera, they began to beat Surjan. He admitted that he had made the same statement to the investigating officer but added that in fact he did not see these persons striking Surjan with lathies. He also admitted that before the First Glass Magistrate Sanchore he had stated that Surjan had received a blow before Dhoora appellant came and he was crying 'run up, run up'. He also stated there that Hiria, Jodha and Bhera started beating first. It is clear that the statements of this witness before the investigating officer and the committing Magistrate were that Haru, Hiria, Jodha and Bhera were the first to strike Surjan. It seems that either these police officers made false statements during the investigation stage or were now trying to help the prosecution. In any event the appellants are entitled to rely upon the statement of Shri Anand Singh and also to say that the statements of Dhan Singh and Devi Singh at the trial are unreliable. On behalf of the appellants two witnesses namely Surjan and Chhoga have also been examined. Surjan says that he was assaulted before the appellants reached the place of occurrence. Surjan of course is a partisan witness, but the statement of Shri Anand Singh itself shows that before the arrival of the appellants at the place of occurrence Surjan had been attacked. In the first information report which was made soon afterwards he has stated that the actual assault had been made upon Surjan before the arrival of the appellants. On the basis of the prosecution evidence, therefore, it can safely be said that Surjan had been assaulted before the appellants arrived at the place of occurrence. Haru and the three other persons for whose arrest the Sub Inspector of Police had gone there must have felt annoyed and must have thought, as is the prosecution evidence, that Surjan was responsible for bringing the police party to that, place. It appears quite likely that due to this annoyance they indulged in beating Surjan. As already stated Surjan had received five injuries on his person. It would not have taken long for the four persons to inflict these injuries on Surjan. There is no evidence on record to show that Surjan was being actually assaulted when the appellants reached there. But it is in evidence that after receiving these injuries Surjan had fallen down on the ground. He had an injury on his head. It also appears from Dhan Singh's evidence that Bhera,jodha and Hiria had not run away from Haru's house till the appellants arrived there. So the question that requires consideration is whether there was still apprehension of further injuries being caused to Surjan and the protection at the hands of the Police Officers was not effective. In this connection we have to take into consideration the feelings of the appellants at the relevant time. The threat of further injuries to Surjan's person was not removed because all his assailants were, still there and they had lathis and Dharias with them. They could therefore, apprehend grievous injuries being caused to Surjan. The Police officers present there proved ineffective and had not been able to avoid the conflict and save Surjan from being beaten. In that situation if one of the appellants struck a blow with a Dharia on the assailants of Surja it cannot be said that he had no right to protect the person of Surjan. The accused are entitled to get the benefit of right of private defence not only when they affirmatively establish it but when a reasonable doubt is created in the mind of the court whether the accused persons are entitled to its benefit or not. It is regrettable that a man was killed and several persons on either side were injured in the presence of the three armed police officers. It is still more regrettable that they have not come forward with a true account of the incident and have tried to help one side or the other. However, on a consideration of the evidence as a whole in the light of probabilities and circumstances mentioned above, the plea of the accused about their right of private defence in protecting the person of Surjan appears reasonably probable. Therefore, even Dhoora is entitled to be acquitted. I have already stated that the appellants other than Dhoora did not share the common intention to beat Haru and they have been punished by the application of sec. 34 of the Indian Penal Code and not for any act of their own. They are therefore, entitled to be acquitted. Dhoora is also entitled to be acquitted. The result therefore, is that this appeal is allowed, conviction and sentence of the appellants is set aside and they are acquitted. They are on bail and need not surrender to it. .;