G.L. Gupta, J.
1. Through this appeal State of Rajasthan has challenged the acquittal of 9 respondents by the learned Addl. Sessions Judge, Nagaur vide his judgment dated 30-4-1982 under Sections 147, 148, 302, 302/149, 307, 307/149, 323 and 324/34, IPC.
2. The case relates to an occurrence which took place on 5-10-1980 at 7 p.m. in village Chhila in which four persons received injuries Phoosaram succumbed to injuries after some time. The FIR Ex.P/4 was lodged by Dula Ram (PW 5) at Police Station, Balaji wherein it was stated that when he along with Phoosa Ram, Pema Ram and Sona Ram were returning to their houses from the field of Pusa Ram, they were given beatings in the field of Jogidan by Chandra Ram, Narain Ram, Chatra Ram, Sheraram Birma Ram, Kishan Ram, Purkha Ram, Birma Ram and Mohan Ram. On this report a case under Sections 147, 148, 149, 307 and 323, IPC was registered in the police. The police obtained the injury reports of Pusa Ram, Sona Ram, Dula Ram and Pema Ram, inspected the site and interrogated the witnesses. On the death of Pusa Ram, Section 302, IPC was added. Autopsy of his body was held by Dr. P.S. Gehlot (PW 3) who prepared the post-mortem Report Ex. P/3 on 7-10 -1980. Accused were arrested and lathis were recovered at their instance. After the completion of the investigation, a challan was filed against three accused Chanda Ram, Narain Ram and Chatra Ram and the police submitted a report under Section 169, Cr.P.C. for the release of other 6 accused. However, the learned Magistrate took cognizance against remaining 6 accused and thereafter the case was committed.
3. The learned Sessions Judge framed charges under Sections 147/148, 307, 324 and 302, IPC. In the alternative charges under Sections 302/149, 307/149, 323, 324/149, IPC were also framed. All the accused pleaded not guilty. The prosecution examined 18 witnesses. Out of them PW 5 Dula Ram PW 6 Sona Ram and PW 8'Pema Ram are the injured persons. PW 2 Meghe Ram and PW 7 Shera Ram depose to have seen the occurrence. P W 4 Narendra Kumar was the scribe of the FIR. PW 1 Narain Ram PW 10 Uma Ram,' PW 13 Narayan Ram and PW 15 Mool Singh were associated by the police as. Motbirs during investigation. PW 16 Narsingh Ram FC had taken articles of this case to the Forensic Science Laboratory, Jaipur. PW 12 Raghunath Singh, PW 17 Pooran Prakash and PW 18 Mohan Singh are the investigating officers. PW 3 Dr. P. S. Gehlot had performed post mortem examination of the body of Pusa Ram. PW 14 Dr. O.P. Khandelwal has examined the injuries of Pusa Ram, Sona Ram, Dula Ram and Pema Ram and had prepared the injury reports Exs. P/6, P/7, P/ 8 and P/9. Accused in their statements under Section 313, Cr.P.C. denied accusation. Three accused Chanda Ram, Narain Ram and Chatra Ram stated that they were attacked by the prosecution witnesses and, therefore, in the exercise of the right of private defence they had to inflict injuries to them. The other accused stated that they were not at the place of occurrence. Accused examined 11 witnesses in defence. Out of them DW 9 Narain Ram is the accused himself. Other witnesses have either deposed that they had seen the injuries of three accused persons or that the accused were seen by them going to the cattle fair. DW 10 Ladu Dan is the Patwari of the area. The learned Sessions Judge considered the entire evidence produced in the case and held that Pusa Ram had met homicidal death. He further, held that only three accused Chanda Ram, Narain Ram and Chatra Ram had taken part in the occurrence. According to him, the accused caused injuries to the members of the complainant party in exercise of the right of private defence. He, therefore, acquitted all the 9 accused.
4. We have heard the arguments of the learned Public Prosecutor appearing for the State appellant and the learned counsel for the respondents, and perused the record of the case.
5. The contention of Mr. Singhvi was4hat the trial Court has erred in disbelieving the statements of Megha Ram and Shera Ram who according to him were the natural witnesses to witness the occurrence. He urged that the statements of 3 injured persons could not be disbelieved as their statements find ample corroboration in the medical evidence. He contended that the accused were 9 in number and as they had started giving beatings to the members of the complainant party first so they could not claim right of private defence. According to him, the non-explanation of the injuries of the accused is not fatal to the prosecution case as the accused had not sustained dangerous injuries.
6. As against this, Mr. Bishnoi contended that the learned trial Court has carefully analysed the prosecution evidence and has correctly found that Magha and Shera had not seen the occurrence. According to him, only three accused were there who were taking the cattle to the cattle fair when the prosecution witnesses all of a sudden attacked them and in such circumstances, the accused had to cause some injuries to the members of the complainant party. He' pointed out that accused Chanda Ram had even sustained grievous hurt. According to him, even apprehension of suffering grievous hurt was sufficient to cause death of the members of the complainant- party who were aggressors.
7. We have given the matter our anxious consideration.
8. PW 5 Dularam, PW 6 Sonaram and PW 8 Pema Ram are the injured persons. They depose that all the nine accused had attacked them and given beatings to them and Phoosa Ram. It is now no more in dispute that accused Chatra Ram, Chanda Ram and Narain Ram had participated in the occurrence and they had inflicted injuries to Phoosaram and 3 other persons.
9. The important question that calls for consideration is as to whether six other accused had taken part in the occurrence. These six accused have denied their presence. The statements of the prosecution witnesses reveal that during investigation, the witnesses had admitted that only three accused had taken part in the occurrence and the names of 6 other accused persons were mentioned because of enmity. The investigation was conducted by Mohan Singh PW 18 who had challaned only three accused persons. It appears that there was some complaint regarding investigation and the investigation was handed over to Pooran Prakash PW 17, who reinterrogated the witnesses and recorded their statements. The investigation>was also conducted by Raghunath Singh, Dy. S.P. PW 12. Thus, three investigating officers had conducted investigation in the case. After the completion of the investigation, challan was filed against three accused persons, obviously because the witnesses had stated that only three accused had taken part in the occurrence. In our opinion, the learned Sessions Judge was perfectly > justified in holding that only three accused had caused injuries to the members of the complainant party and the remaining six accused were not there. Two witnesses have also been examined by the accused to prove that the six accused were not there.
10. Besides the three injured witnesses, the prosecution examined Shera Ram and Magha Ram as eye witnesses. Both of them claim to have witnessed the occurrence. We agree with the learned Sessions Judge that they have given false statements. Had these witnesses also gone to the filed of Phoosa Ram for doing work, along with Phoosa Ram, their names would have definitely found place in the written F.I.R. Ex.P/4 or atleast in the 'Taqriran Dariyaft'. It is relevant to state that in his police statement Ex. D/4 Dularam had stated that Shera Ram had met them at the Dhani after they were injured and he had not gone to rescue them. Then the learned Sessions Judge also noticed discrepancies in the statements of Shera Ram and Dula Ram as to the place where Phoosa was lying in injured condition, and to which side the accused went after the occurrence,. Magha PW had stated in his police statement Ex.D/2 that he had not seen his brother Pema injured at the place of occurrence. All these circumstances taken together indicate that Shera and Magha had not seen the occurrence and they were introduced in the 'Taqriran Dariyaft' because of their close relationship; Magha being real brother of Pema injured and Shera being cousin of Phoosa deceased. That being so, their testimony does not help us in finding as to whether remaining six accused had? participated in the occurrence.
11. It has come on record that one Madan had seen the occurrence. PW 18 Mohan Singh, I.O. admits that he had interrogated Madan. According to him, he was the eye witness to the occurrence and his name was cited in the calendar as eye witness. The prosecution has not examined this prosecution witness who was independent person and who could say as to how many persons had participated in the occurrence. The trial Court was justified in drawing adverse inference against the prosecution for the non-production of Madan.
12. Considering the overall evidence, we find ourselves in agreement with the trial Court that the remaining six accused had not participated in the occurrence.
13. Now it is no more in dispute that members of both the parties had sustained injuries in the occurrence. According to Dr. Khandelwal, Phoosaram had suffered 6 injuries and out of them one was lacerated wound on his right parietal region. Sona Ram had suffered 8 injuries and out of them one was incised wound on the zygomatic region and one was lacerated wound on his right parietal region says Dr. Khandelwal. Dula Ram had suffered 10 injuries and out of them one was incised wound on the left ear,, and two were lacerated wounds on the frontal Region, of scalp and Pema Ram had suffered 3 injuries which were bruises and abrasions as per the medical evidence. On the accused side, Chanda Ram had suffered 8 injuries including grievous hurt on left shoulder, out of which 4 were lacerated wounds and one was incised wound says the medical officer. One of the lacerated wound was on his front parietal region. According to Dr. Khandelwal, Narain had suffered 6 injuries; one lacerated wound was on the scalp, one lacerated wound on the forehead, one lacerated wound on the left cheek, and one lacerated wound was on his right forearm. Proving the injuries of Chatra Ram, Dr. Khandelwal states that he had suffered one lacerated wounds on his forehead and right parietal region of scalp and five more injuries. It is, thus, obvious that in that occurrence, the deceased and the three injured had suffered total 27 injuries; and some 21 injuries were suffered by the three accused.
14. The prosecution has however not explained the injuries of the accused. Questions have been asked to all the injuried and eye-witnesses as to whether the three accused had suffered injuries in the occurrence and how those injuries were caused to them: The witnesses have denied to have even seen the injuries on the persons of the three accused. It is significant to point out that during investigation when the statements of the witnesses were recorded by one of the investigating officer, they had stated that they had caused injuries to the accused persons. This important fact has been denied by the witnesses in the Court. They have stated that they did not give such statements before the police. It has been admitted by PW 18 Mohan Singh before whom FIR Ex. P/4 was produced and who had conducted major part of the investigation, that accused Chanda Ram had lodged the report of the occurrence on which a case under Sections 148 and 307, IPC was registered and investigation was conducted. He has further admitted that on that FIR a challan was filed against some of the prosecution witnesses only under Section 324, IPC. Both the learned counsel could not point out at the time of arguments as to what was the fate of that case. However, we cannot help observing that cases challened on the two FIRs - the one lodged by the complainant party, and other, lodged by the accused party - ought to have been tried by one and same court since they Were the cross cases in respect of the same occurrence. Be that as it may, for the present, we are only concerned with this fact that the accused had also lodged report of the occurrence and the investigating officer had found injuries on the person of the three accused. They were also medically examined. In such circusmtances, it was the bounden duty of the prosecution to have explained the injuries of the accused.
15. It is needless to state that the injuries suffered by the accused were not of minor or insignificant nature. Chanda Ram had suffered as many as 8 injuries including injury on parietal region and out of them one was of grievous nature, and Narain Ram and Chatra Ram had also suffered injuries on their heads. Even incised wound was caused to Narain Ram.
16. In the case of Laxmi Singh v. State of Bihar AIR 1976 SC 2263 : 1976 Cri LJ 1736, it has been clearly observed that if the explanation of the injuries of the accused is not given by the prosecution, the Court may presume that the prosecution has suppressed the genesis and the origin of the occurrence and has not presented true version and that the witnesses who have denied the presence of the injuries on the accused persons are lying on a most material point and, therefore, their evidence is unreliable. It has been further observed that where the injuries of the accused are not explained, the defence version is rendered probable so as to throw doubt on the prosecution case.
17. It is relevant to state that the evidence in this case consists only of the interested witnesses. In the FIR Ex.P/4 itself, it was stated that the parties were on inimical terms and there was already litigation pending between them. When the injuries of accused were not explained, the learned Sessions Judge was perfectly justified in observing that the prosecution has suppressed the genesis and origin of the occurrence and the witnesses are lying on most material point and therefore, their evidence is unreliable.
18. Section 97 of the IPC gives a valuable right to the accused to defend his body, and the body of any of other person, against any offence affecting the human body. Under Section 100, IPC the right of private defence of body extents to the valuntary causing of death or any other harm to the assailant if the offence which occasions the exercise of right be of any of the description mentioned therein. Clause First and Second are relevant to the point, which are as follows :
First - Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.
Second - Such an assaults may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.
19. Of course, the burden of brining a case under any of the exceptions is on the accused, however, that burden is not that onerous as that lies on the prosecution. The accused have discharged this onus by proving their injuries and also by proving the police statements of the witnesses wherein they had admitted-that injuries were caused to the accused. The accused have pleaded that all the injured witnesses were having weapons in their hands and they (accused) were attacked all of a sudden when they were taking their cattle to the cattle fair. It was natural for the accused, who were taking cattle; to have lathis in their hands to herd the cattle, When the three accused were attacked by four persons, they (accused) could certainly apprehend that atleast grievous hurt would be caused to them. Therefore, they were justified in repelling the force by their lathis. The matter could have viewed with different angle had the prosecution witnesses come with a: plea that the accused had attacked them first and, they had in exercise of the right of private defence' caused the injuries to the accused. When this is not the case and it is established on record-that the accused had suffered injuries occurrence, the defence version will have to be accepted that the prosecution witnesses were the aggressors and they had attacked the accused and thereafter the accused had repelled the assault by using force. In our considered opinion, the learned trial Judge has correctly accepted the defence version.
20. Keeping in view the total number of the injuries suffered by those accused, it cannot be said that they had exceeded the right of private defence. A person faced with imminent peril of life and limb of himself or another is not expected to weigh in 'golden scales' the precise force needed to repel the danger. Even if he at the heat of moment carries his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it. Vide Mohd Ramzani v. State of Delhi AIR 1980 SC 1341 : 1980 Cri LJ 1010.
21. It is not a case where the trial Court has omitted to consider important piece of prosecution evidence that it has misread the evidence. The finding of the trial Court neither can be said to be pulpably wrong nor manifestly erroneous. No grounds of interference are made out.
22. Consequently, there is no merit in this appeal which is hereby dismissed.