VINOD SHANKER DAVE, J. - (1.) THIS appeal arises out of a judgment passed by Sessions Judge, Pratabgarh on July 31, 1978, whereby he convicted and sentenced the accused -appellants as under: Accused -appellant Amar Singh for offences under Section 324, 323 and IPC and sentenced him to rigorous imprisonment for three months and to a fine of Rs. 200/ - for offence under Section 324 IPC and rigorous imprisonment for one month for offence under Section 323 IPC and to a fine of Rs. 200/ - for offence under Section 341 IPC. Accused -appellant Chhatar Singh for offences under Sections 325 & 341 IPC and sentenced him to rigorous imprisonment for four months for offence under Section 325 and to a fine of Rs. 200/ - for offence under Section 341 IPC and in default of payment of fine to further undergo rigorous imprisonment for one month. The accused -appellant Bahadur Singh for offence under Section 325 and 341 IPC are the accused appellant Vishnusingh for offence under Section 323 and 341 IPC. Both these appellants have been given protection under Section 4/6 of the Probation of Offenders Act.
(2.) THE case started on a First Information Report lodged by one Gunvant at police station Dhamohar District Chittor wherein it was stated by him that in the morning he along with his brothers Balwant and Ganpat had gone for harvesting the Urd crop from (heir field named as Jambu -wala. They harvested it and at about 3.30 in the noon his father Praduman Kumar came with a tractor. The way to their field is through a Sheda(way) passing through the field of one Chhattar Singh. Chhatar Singh and Amar Singh who were present there told Pradumankumar that they should not pass theit tractor through that way. They also started abusing his father whereupon his father came on the field. At about 6.30, in the evening they were going back to their houses. He, his brother Balvant, Jasvant driver and Gordhan were on field. Makhan Singh was on a horse back and his father was driving tractor. He was following them. They reached near the tractor, Chhatar Singh, Amar Singh, Bahadur Singh, Vishnu Singh Doodia came out of their field and way -layed the tractor. These people were armed with lathies except Amar Singh who was armed with a sickle. Thereafter his father was manhandled, injuries were caused by various weapons as a result of which injuries were sustained by his father. When they tried to intervene they too were not spared. On receipt of this report a case was registered for offence under Sections 341, 347, 149 and 323 IPC and investigation started. This report is Ex. P. 5.and was lodged at 9.00 pm on September 28, 1975, i.e. day of occurrence. On the same day earlier to it Ex. D. 4 report was lodged by Amar Singh accused -appellant wherein Praduman, Gunvant and Balvant were mentioned as the accused who tried to trespass through their land where there was standing crop of Urd and when they were stopped they made an attempt on on them resulting in injuries. On receipt of this report a case under Sections 323, 324 and 34 IPC was registered against the complainant party in this case. Investigation was also carried out in this case where ultimately a final report was given by the Investigating Officer. Case against the present accused was challaned after investigation in the court of Judicial Magistrate Pratab -garh who committed six accused, namely, Amar Singh, Nathulal,Vishnu Singh, Chhatar Singh, Bahadur Singh and Doodia to the court of Sessions for trial for offence under Sections 147, 307, 325, 324, 341, 323 and 149 IPC. The prosecution examined 12 witnesses in support of its case. The accused came with the plea of exercise of right of private defence and examined 3 witnesses in their defence. The learned Sessions Judge accepting the prosecution case held that the accused -appellants wrongfully obstructed the right of way of the complainant party and further caused injuries to them and consequently convicted and sentenced them as indicated above. It is against this conviction and sentence that the present appeal has been preferred.
(3.) I need neither discuss the evidence in details nor mention the various contradictions in the statements of the witnesses because I am disposing of this appeal on a very short ground on admitted facts and in the background the law of right of private defence of person and property as has been laid down by their Lordships of the Supreme Court reported in Gettipuila Venknta Sive Subbrayausm and Ors. v. The State of Andhra Pradesh and Anr. : 1970CriLJ1004 wherein it has been held as under: that this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental exitement could be better imagined than described to weigh the position in golden scales. The accused did not exceed his right of private defence. The fact that the plea of self defence was not raised by the accused and that he had on the contrary pleaded alibi did not preclude the court from giving to him the benefit of the right of private defence; if on proper appraisal of the evidence and other relevant material on the record the court concluded that the circumstances in which he found himself at the relevant time gave him the right to use his gun in exercise of this right. The analogy of estoppel or of the technical rules of civil pleadings is, in such cases inappropriate and the courts are expected to administer the law of private defence in a practical way with reasonable liberality so as to effectuate its underlying object, bearing in mind that the essential basic character of this right is preventive and not retributive. ;