Sharma, J.
1. In between the residential areas of two related families, there stood a JAT-TREE. One family comprising of four real brothers viz. Hanuman, Deep Chand, Hoshiyar and Bharta Ram claimed the TREE of its own, whereas the other family that included their uncle Tota Ram, his son Jai Ram and grand sons Rajendra and Mohan, was of the view that the TREE belonged to it only. On the fateful day of June 3, 1992 when the four brothers made attempt to uproot the TREE, it proved fatal to two of them (Hanuman and Deep Chand) who lost their lives in the incident. Let us unfold the re'sume' of the case.
2. All the four appellants Jairam, Rajendra @ Papuriya, Mohan @ Ram Monohar and Tota Ram were arraigned before the learned Additional Sessions Judge Behrod (Distt. Alwar) for having committed murder of Hanuman and Deep Chand in Sessions Case No. 173/92. Learned Additional Sessions Judge vide judgment dated December 8, 1994 found them guilty, convicted and sentenced as under:
(1)
Mohan @ u/S.302 IPC
Ram Manohar
tosuffer imprisonment for life and fine of Rs. 1000 in default to further undergo six months SI.
u/S. 307/34IPC
to suffer 7 years RI and fine of Rs. 500/- in default to further undergo 3 months SI.
u/S.323/34IPC
tosuffer 6 months RI and fine ofRs. 100/- in default to further undergo 15 days SI.
u/S. 342 IPC
tosuffer 6 months RI and fine ofRs. 100/- in default to further undergo 15 days SI.
(2)
Rajendra @ u/S. 302 IPC
Papuriya
tosuffer imprisonment for life and fine of Rs. 1000 in default to further undergo six months SI.
(3)
TolaRam u/S. 307/34IPC
to suffer 7 years RI and fine of Rs. 500/- in default tofurther undergo 3months SI.
u;/S. 323 IPC
tosuffer 6 months RI and fine ofRs. 100/- in default to furtherundergo 15 days SI.
u;/S. 342 IPC
tosuffer 6 months RI and Fine ofRs. 100/- in default to further undergo 15 days SI.
(4)
JaiRam u/S. 302/34IPC
tosuffer imprisonment for life and fine of Rs. 1000 in default to further undergo six months SI.
u/S. 307 IPC
to suffer 7 years RI and fine of Rs. 500/- in default tofurther undergo 3months SI.
u/S. 323/34IPC
tosuffer 6 months RI and fine ofRs. 100/- in default to further undergo 15 days SI.
u/S. 342 IPC
tosuffer 6 months RI and fine ofRs. 100/- In default to furtherundergo 15 days SI.
All the sentences were directed to run concurrently. The appellants have impugned the aforequoted judgment in the instant appeal.
3. A written report (Ex.P. 1) was lodged by Hoshiyar Singh (PW. 1) with the Police Station Mandhan on June 3, 1992 at 9.15 p.m. with the averments that around 5.30 p.m. he alongwith his brothers Hanuman, Deep Chand and Bhartha Ram had gone to uproot the JAT-TREE belong to them. They could only dig a pit about five ft. deep. Suddenly his Tau (uncle) Tota Ram, his son Jai Ram and grand sons Mohan and Rajendra @ Papuriya armed with Pharsi, axe and lathies came over there and made assault on them. He and his brothers received injuries. They were thereafter dragged and detained by the assailants in their house. On hearing their hue and cry Gyarsi Lal and Leela Ram intervened. Jagmal, Laxman, Balveer and others removed them from the custody of the assailants and got his three brothers admitted in the Hospital. Police Station Mandhan registered FIR No. 51/92 under Sections 307, 323 and 342/34 IPC and investigation commenced. After the death of Hanuman and Deep Chand the case was converted into Section 302 IPC. The investigating officer inspected the site and recorded the statements of the witnesses under Section 161 Cr.P.C. The dead bodies were subjected to autopsy. Injured were medicaliy examined. Accused were arrested and the weapons of offence were recovered at their instance. Blood smeared clothes, soil and weapons were sent to FSL and on conclusion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Behrod. Charges under Section 302 IPC in the alternative 302/34 IPC, 307 IPC in the alternative 307/34 IPC, 342 IPC in the alternative 342/34 IPC, 323, 325 IPC, in the alternative 323, 325/34 IPC were framed. The accused denied the charges and claimed trial. The prosecution examined as many as 28 witnesses. Accused Mohan in his statement under Section 313 Cr.P.C. pleaded that he was not present at the site and way away on duty. Whereas the other accused pleaded right of private defence and stated that it was Bharata Ram who accidentally inflicted the injury on the head of Hanuman. The learned trial judge on hearing the final submissions convicted and sentenced the accused appellants as indicated hereinabove.
4. The case of the prosecution is mainly based on the eye witness account of injured witnesses Hoshiyar Singh (PW.1) and Bharta Ram (PW.26). The evidence is sought to be corroborated by the testimony of Medical Jurists Dr. Shiv Narain (PW. 21), Dr. M.K. Singhal (PW. 22) Dr. P.C. Vyas and Dr. Surendra Kumar Sharma (PW. 28). Then comes the evidence of Ram Singh Bishnoi (PW. 25) and Deena Ram Khatana (PW. 27), the investigating officers.
5. Before analysing the testimony of eye witnesses we deem it necessary to refer the injuries sustained by the deceased as well as the injured persons.
Injury sustained by Hanuman Singh (deceased) :
Incised wound 6 cm x 1.5 cm. x 3.5 cm fresh profuse (up to bone) Rt. Parietal region bleeding
Injuries sustained by Deepchand (deceased) :
1. Contusion 5 cm. x 3cm Rt. Parietal region @ Swelling.
2. Contusion 3 cm. x 5 cm. Lt. Parietal region @ Swelling
Injuries sustained by Hoshiyar Singh (injured) :
1. Lacerated wound 2.5 cm. x 1/2 cm. x 1/2 cm. Rt. Parietal region.
2. Abrasion 2.5 cm. x 1/2 cm. Rt. Scapular region
3. Bruise 18 cm. x 2.5 cm. Rt. scapular region redish coloured
4. Bruise 15 cm. x 2.5 cm. Interscapular region with redish coloured.
5. Bruise with 8 cm. x 1.5 cm. Rt. interscapular redish coloured region
6. Abrasion with 9.5 cm. x 1/2 cm. Back of chest redish colour lower part
7. Abrasion with 10 cm. x 1/2 cm. Lt. lumber region redish colour
8. Abrasion with 14 cm. x 3/4 cm. Lt. lumber redish colour region
Injury sustained by Bhartharam :
Lacerated wound 6 cm. x 1.5 cm. x 3 cm. @ bleeding & blood Rt. Parietal region clot.6. At this juncture reference to injuries sustained by accused Rajendra vide Ex. D.11 also appears necessary.
Injuries of Rajendra (accused) :
1. Lacerated wound with Redish Bluish blood clot 3 cm. x 2 cm. x skin deep over Rt. Parietal Ocipital region of the skull
2. Pain over the Rt. Shoulder
3. Pain over Rt. Buttock.
7. As already noticed in the FIR Ex.P.1 Hoshiyar Singh (PW. 1) did not give the details as to who caused injury to whom. But in deposition before the learned trial court Hoshiar Singh (PW.1) stated that while they were digging the pit in order to uproot the JAT TREE, the appellants armed with farsi, axe and lathies assaulted on them. Accused Mohan inflicted farsi blow on the head of Hanuman, Bhartaram who was standing in the pit received blows of axe inflicted by Jai Ram, Totaram and Rajendra gave blows with sticks. When Deepchand intervened Rajendra and Totaram inflicted injuries on his head. He (Hoshiyar Singh) was beaten by Tota Ram and Rajendra. Thereafter he alongwith other injured were dragged by the accused persons to their Baithak (room) from where they were removed by Jagmal, Chiranji, Laxman, Ved Prakash and Balvir to the Hospital. In his cross examination Hoshiyar Singh although initially deposed that in the partition, the tree came in the possession of Totaram, yet in the next breath he changed his version and stated that it was wrong to suggest that TREE belonged to Totaram. He also stated that boundary wall existed in between his and Tota Ram's residential portions.
8. Bhartharam (PW. 26) the real brother of Hoshiyar Singh (PW. 1) deposed that when he and his three brothers were making attempt to uproot the TREE, accused Totaram, Jai Raj, Mohan and Rajendra came over there. Mohan inflicted farsi blow on the head of Hanuman. Jairam inflicted axe blow on his head. Totaram, Rajendra and Hoshiyar Singh inflicted lathi blows on the person of Deepchand. In his cross examination he stated that they had spade and axe at the time of uprooting the tree. He admitted that Jairam and Rajendra also sustained injuries in the incident.
9. Prakash Chand (PW. 2) stated that earlier JAT TREE, was owned by Hanuman but after partition it came in the portion of Tota Ram and on the date of incident Tota Ram owned and possessed the tree. He also deposed that Nohra (house) of Tota Ram was surrounded by boundary, the height of which was four feet. Chiranji (PW. 4) in his cross examination stated that on the date of the incident the tree was inside the boundary wall of Tota Ram. Sukh Ram (PW. 8) deposed that earlier the tree belonged to Hanuman and Deep Chand but after partition it came in the share of Tota Ram and on the date of incident the tree was in the possession of Tota Raj. Gyarsi Ram (PW. 10) in his cross examination admitted that on the date of incident Tota Ram, possessed the JAT-TREE, Deena Ram Khatana SHO (PW. 27) had drawn the site plan Ex.P.3. He admitted that in the site plan JAT TREE was shown in the area of Tota Ram.
10. On a close scrutiny of the material on record, the salient features of the prosecution case may be deduced thus -
(i) Hanuman (deceased) sustained one incised wound on his right parietal region and he died on June 4, 1992.
(ii) Deep Chand received two contusions over his right and left parietal region and he died on June 10, 1992, after seven days of the incident.
(iii) Tota Ram owned and possessed JAT TREE on the date of the incident.
(iv) The occurrence had taken place when Hanuman, Deep Chand,Bharta Ram and Hoshiyar Singh started digging the pit in order touproot the tree.
(v) Accused Rajendra also sustained lacerated wound on his right parietal occipital region in the incident.
(vi) The deceased and the accused were related to each other. Appellants were armed with Pharsies, axe and lathies, whereas Hanuman, Deep Chand, Partha Ram and Hoshiyar were having axe and spade.
11. Mr. A.K. Gupta, learned counsel for the appellants canvassed that it was the complainant party who entered into the portion of appellants Tota Ram and started digging up the pit to remove the tree belonging to the appellants when appellant Rajendra protested he was severely beaten by Hanuman, Deep Chand and Partha Ram. Jairam was also beaten by them. An FIR Ex.D.9 was lodged by Rajendra with the Police Station Mandhan on June 7, 1992 at 7 p.m. against Hanuman, Deep Chand, Bharta Ram and Hoshiyar. Thus the appellants had reasonable apprehension of receiving grievous hurt and they had exercised their right of private defence and they could not have been convicted.
12. Per contra Mr. Pratap Singh learned Public Prosecutor for the State and Mr. Biri Singh learned counsel for the complainant supported the conviction of the appellants and urged that they have intentionally killed Hanuman and Peep Chand and they cannot take shelter under the right of private defence.
13. As we have already noticed that the case of the prosecution is that while Hoshiyar Singh, Partha Ram, Hanuman and Deep Chand made an attempt to uproot the JAT TREE they were given beating with Pharsi, axe and lathies by the appellants and thereafter all the four injured were dragged and confined in the Baithak (room) of Tota Ram. When request to release them was made, the appellants very reluctantly permitted the witnesses to take them to the Hospital. It is also established from the testimony of the prosecution witnesses that Tota Ram had owned and possessed the JAT TREE on the date of the occurrence and Deep Chand, Hanuman, Partha Ram and Hoshiyar armed with axe and spade entered inside the boundary wall belonging to Tota Ram and started digging the pit in order to uproot the TREE belonging to Tota Ram. Partha Ram himself admitted that appellants Rajendra and Jai Ram had also received injuries in the incident and they were drenched with blood.
14. It is trite that the onus which rests on an accused person under Section 105 Evidence Act, to establish his plea of private defence is not as onerous as the unshifting burden, which lies on the prosecution to establish every ingredient of the offence with which the accused is charged beyond reasonable doubt. It is further well established that 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 the 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. When a person is faced with a danger and immediate aid from the State Machinery was not available the person is entitled to protect himself and his property. But the force that the person is entitled to use must not be unduly disproportionate to the injury which has to be averted or which is reasonable to apprehend and should not exceed its legitimate purpose or the exercise of right of defence must never be vindictive or malicious.
15. In the instant case the deceased Hanuman and Deepchand were the aggressors. They along with their two brothers Hoshiyar and Partha Ram having axe and spade entered inside the boundary wall of appellant Tota Ram and started uprooting the JAT TREE belonging to Tota Ram. When protest was made by Tota Ram his son Jai Ram and grandsons Rajendra and Mohan, deceased Hanuman and Deep Chand gave beating to Jai Ram and Rajendra. A lacerated wound on skull was sustained by Rajendra. Under these circumstances the appellants Tota Ram, Jai Ram, Rajendra and Mohan faced with imminent peril of life and limb, inflicted, only one incised wound on the head of Hanuman and two contusions on the head of Deep Chand. The appellants were entitled to protect them selves and their TREE and the force used by them in defending themselves and their property can not be termed as unduly disproportionate to the injuries that have to be averted. We do not find the exercise of right of defence by the appellants as vindictive or malicious. In the facts and circumstances of the case the act of the appellants may be termed as preventive and not retributive. We also do not find that story of the prosecution probable that the appellants, after the occurrence, had dragged all the four injured persons and detained them in the Baithak of Tota Ram. It appears to us that the genesis of the occurrence has been withheld by the prosecution. We cannot rule out this possibility that free fight between both the parties also ensued in the 'Baithak' of Tota Ram. According to site plan Ex.P.3 the occurrence had taken place near the JAT TREE at Mark 'A'. Whereas 'Baithak of Tota Ram has been shown by Mark 'B' where the injured were found lying. Had the injured been dragged from place 'A' to place 'B' there must have been a trial of blood between these places but we do not find any trial of blood in the site plan. On the contrary splashed blood was found at the 'Baithak' Mark 'B' as also at Mark 'A'. As all the four brothers Deep Chand, Hanuman, Hoshiyar Singh and Partha Ram were the aggressors, the appellants cannot be held guilty for the injuries sustained by them in exercise of the right of private defence of the appellants,
16. The learned trial judge in our opinion, has not properly considered the evidence adduced by the prosecution and convicted the appellants ignoring their established right to property and person. The admitted facts in the testimony of prosecution witnesses were also overlooked.
17. For the reasons aforementioned we allow the appeal and set aside the impugned judgment. We acquit the appellants Mohan @ Ram Manohar, Rajendra @ Papuriya, Tota Ram and Jai Ram from the charges under Sections 302, 302/34, 307, 307/34, 323, 323/34 and 342 IPC. Appellant Mohan @ Ram Manohar is in jail, he shall be set at liberty forthwith if not required in any other case. The appellants Rajendra @ Papuriya, Tota Ram and Jai Ram are on bail. They need not surrender, their bail bonds stand cancelled.