SHIV KUMAR SHARMA, J. - (1.) THE appellant was the accused on the file of learned Additional Sessions Judge Rajgarh District Alwar bearing Sessions Case No. 18 2001. Learned Judge vide judgment dated June 13, 2003 convicted and sentenced the appellant as under:- U/s 302 IPC: To suffer Imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for fifteen days. U/s. 341 IPC: To suffer Rigorous Imprisonment for two months and fine of Rs. 200/-, in default to further suffer simple imprisonment for fifteen days.
(2.) TO prosecution case as unfolded during trial. . . . . . . that on February 11, 2001 at 3. 10 PM the informant Sawai Ram (PW. 5) went to the Police Station Raini with injured Jagdish and submitted written report with the averments that around 10-11 AM on the said day Jhandu Meena (appellant), Ramdhan and Megha were putting `balli' towards the well of the complainant party. The complainant party opposed this act and gathered middle men to persuade Jhandu, Ramdhan and Megha not to obstruct the well on the pursuation of middle men they agreed not to do so. After some time when the complainant party was passing in front of the house of Jhandu, Jhandu gave blow with Pharsi on the head of Jagdish. Interveners Budharam & Mukesh were also beaten up. Case under sections 147, 148, 323, 149, 341, and 307 IPC was registered and investigation commenced. During the pendency of investigation Jagdish died and case was converted into section 302 IPC. After usual investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge Rajgarh District Alwar. Charges under sections 148, 323, 341, 302 IPC were framed. The appellant denied the charges and claimed trial. The prosecution examined as many as 20 witnesses in support of its case. In the explanation under section 313 Cr. P. C. , the appellant claimed innocence. Appellant Jhandu examined himself in defence as DW. 1 and exhibited documents. The learned Trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. Seven other co-accused persons who faced trial along with appellant were Raghunath @ Raghuveer (father of appellant), Megha Ram, Ramdhan (Brothers of appellant), Prakash (son of appellant), Smt. Heera (wife of appellant), Smt. Hari (wife of Ramdhan) and Smt. Chhoti (wife of Megha Ram ). All these members of the appellant family were however acquitted. We have carefully gone through the record with the assistance of learned counsel for the parties and heard the rival submissions. A look at the postmortem report (Ex. P-31) shows that the deceased Jagdish received following ante mortem injury:- " (1) Incised wound 15 x 4cm x Brain deep with red clotted blood Rt. side skull extending from Rt. Frontal area of skull towards Rt. Parietal and posteriorly upto Rt. Parieto occipital skull Bone and scalp clear cut. Through the bone meanings and brain matter is coming out. In the opinion of Doctor the cause of death was coma due to head injury (brain injury ). " At this juncture we deem it appropriate to refer to the injuries sustained by the appellant and other co-accused persons in the course of the said incident. Appellant Jhandu vide injury report Ex. D-8a received following injuries:- " (1) Contusion 4cm x 1. 5cm on Dorsum of Lt. foot in Mid region. (2) Contusion 5cm x 2cm Lat. aspect upper 1/3rd of Rt. Fore arm. (3) Abrasion 0. 8cm x 0. 3cm on Dorsum of distal phalanx of Lt. Index finger. " Raghunath (father of Jhandu) vide injury report Ex. D-6a sustained following injuries:- " (1) Lacerated wound 0. 3cm x 1. 2cm x 1/2cm deep Antr. aspect Middle 1/3rd of Rt. leg. (2) Lacerated wound 2cm x 1/2cm x 1/2cm Antr. aspect 2cm below injury No. 1 Antr. aspect middle 1/3rd of Rt. leg. (3) Abrasion 3. 5cm x 1/2cm Antr. aspect lower 1/3rd of Rt. leg. (4) Lacerated wound 3. 2cm x 0. 3cm x 0. 2cm on Dorsum of Rt. hand. (5) Abrasion 2cm x 0. 6cm Postr. aspect upper 1/3rd of Lt. fore arm. (6) Contusion 9cm x 2cm Postr. aspect upper 1/3rd of Lt. leg. " Prakash (son of Jhandu) vide injury report Ex. D-7a received following injuries:- " (1) Contusion 6. 5cm x 2. 5cm on Postr. aspect lower 1/3rd of Rt. fore arm. (2) Contusion 4cm x 2cm on Dorsum of Rt. hand at the base of Middle finger. (3) Abrasion 4cm x 1. 5cm on Antr. aspect upper 1/3rd of Lt. leg. " Megha Ram (Brother of Jhandu) vide injury report Ex. D-5a received following injuries:- " (1) Lacerated wound 0. 7cm x 0. 3cm x 0. 2cm on ventral aspect tip of the Rt. middle finger. (2) Lacerated wound 2. 3cm x 2cm on ventral aspect tip of the right ring finger. (3) Lacerated wound 6cm x 1cm x 1/2cm deep on right parietal region parallel to inter parietal suture. (4) Lacerated wound 1. 5cm x 1cm x 0. 2cm on outer side of It. pinna near extuditrary canal orifice. (5) Contusion 2. 5cm x 1. 5cm on It. iliac crest `d'. " Smt. Hari Devi W/o Ramdhan vide injury report Ex. D-10a received following injuries:- " (1) Lacerated wound 2. 1cm x 1cm x 1/2cm deep on left side frontal region. (2) Lacerated wound 1cm x 0. 4cm x 1cm deep on postr. aspect upper 1/3rd of Rt. fore arm. (3) Contusion 5cm x 1. 5cm on back at Right lumber region oblique. (4) Contusion 0. 7cm x 1/2cm on back at lumber vertibra. " Smt. Heera W/o Jhandu vide injury report Ex. D-11a received following injuries:- " (1) Lacerated wound 2cm x 1/2 cm x 0. 7 cm oblique on right parietal region. (2) Contusion 4cm x 2. 5 cm on right parietal region 4cm back to injury No. 1. (3) Contusion 4cm x 3cm on Dorsum of Lt. hand at the base of lt. index finger. " Smt. Chhoti W/o Megha Ram vide injury report Ex. D-12a received following injuries:- " (1) Abrasion 1cm x 0. 3cm on Right frontal region. (2) Contusion 9cm x 6. 5cm postr. aspect middle 1/3rd of lt. arm. (3) Abrasion 1cm x 0. 6cm on Antr. aspect middle 1/3rd of left leg. " Coming to the prosecution evidence we notice that informant Sawai Ram (PW. 5) is not the eye witness of the occurrence. In his deposition Sawai Ram stated that his son Ramu informed him that Jagdish (younger brother of Sawai Ram) was given beating by the accused. Sawai Ram only testified that after the accused made a hole in the well of Jagdish with `balli', villagers were gathered who directed the accused to repair the hole. Mukesh (PW. 4) (son of Sawai Ram) claimed to have seen the incident. According to him appellant Jhandu inflicted blow with axe on the head of Jagdish. In the cross examination he admitted that on the complaint of the accused, cross case was registered against them. He denied to have seen any injury on the person of the accused. Although he attributed injury with lathi on his head to accused Ramdhan but he decided not to get his injury examined by medical jurist. Budha (PW. 8) (brother of Sawai Ram) deposed that the dispute of making hole in the well of Jagdish got almost settled with the help of villagers but the accused made assault on Jagdish who was passing in front of the house of the deceased. On hearing noise when Buddha rushed to the spot Megha gave Barchhi-blow on his head. In the cross examination Buddha admitted that Jhandu instituted a criminal case against him. He stated that when he reached at the place of incident he found Jagdish lying unconscious and Jhandu was not there. Smt. Jal Bai (PW. 9) (wife of the deceased) attributed injury with Pharsi on the head of Jagdish to the appellant but she denied to have seen any injury on the person of appellant and other accused.
(3.) FACTUAL situation as noticed by us may be summarised thus:- (1) Cross case was registered against the member of complainant party. Injuries sustained by members of the accused party have not be explained by the prosecution witnesses. (2) Deceased sustained one incised wound on the head. (3) The appellant is able to establish that he himself sustained contusions and abrasion, Raghunath (father of appellant) sustained three lacerated wounds. Prakash (son of appellant) received two contusions. Megha Ram (Brother of appellant) sustained four lacerated wounds, out of which one was on right parietal region. Smt. Heera (wife of appellant) received one lacerated wound on right parietal region. Smt. Hari Devi (Wife of Ramdhan) received lacerated wound on frontal region. Smt. Chhoti (Wife of Megha Ram) sustained one abrasion on right frontal region. (4) There was spontaneous fight between the parties. Learned counsel for the appellant vehemently canvassed that the appellant had a right of private defence because he himself and his family members were attacked and there was apprehension that the grievous hurt would be caused by the complainant party. Reliance is placed on Moti Singh vs. State of Maharashtra (1), and Lakhwinder Singh vs. State of Punjab Per contra learned public prosecutor supported the impugned judgment and urged that the injury was caused by the appellant in retaliation. We have pondered over the submissions. It is well settled that when the accused has taken the plea that he acted in self defence, that cannot be lightly ignored particularly in the absence of any explanation of his injuries by the prosecution. The guilt of the accused is to be judged on the basis of the facts and circumstances of the particular case. The injuries found on the person of the accused being serious in nature assume importance in regard to genesis and manner of occurrence. In the instant case as already noticed by us that the prosecution has not given any explanation as to how the members of accused party received injuries? In our opinion the appellant was successful in probablising this fact that free fight took place between the complainant and the accused parties as a result of which the appellant and the members of his family received injuries. The origin and genesis of the occurrence appears to have been withheld by the prosecution. ;