R.P. Sethi, J.
1. The appellant was held guilty of committing the murder of Man Singh and attempting to commit the murder of Chini Lal, Swami Raj and Faqir Chand. He was also found guilty of causing grievous injuries to Faquir Chand and injuries with gun shot to Swami Raj and Chunni Lal. After having found him guilty of commission of offence under Sections 302, 307, 326, 324 RPC, he was sentenced to imprisonment for life for the commission of offence punishable under Section 302 RPC, rigorous imprisonment for five years and a fine of Rs. 300/- for attempting to murder of Swami Raj, Chuni Lal and Faquir Chand on each of the three counts; to undergo rigorous imprisonment for seven years and pay a fine of Rs. 500/- for causing grievious injuries by gun shot under Section 326 RPC and to undergo rigorous imprisonment for two years under Section 324 RPC. All the sentences passed were directed to run concurrently.
2. Upon the FIR lodged by Thakru on 15-7-1981 at police station Doda, the investigation was initiated against the appellant who was alleged to have committed the of fences of attempt to murder and causing of injuries with gun shots. It was alleged that the appellant illegally entered on a piece of land in possession of the informant on 15-7-1981 at about 8 a.m. and started ploughing the land. Chuni Lal and Swami Raj brothers of the informant, Faquir Chand sister's husband of the informant and Dindayal, the father of the informant, came on spot and told the appellant to desist from taking forcible possession of the land in their possession. When despite demand the accused did not pay any heed, the informant called Beli Ram and Man Singh for the purpose of dissuading the appellant from taking the possession of the land. They made an attempt to persuade the appellant to vacate the land but he threatened them with dire consequences. The informant and his two brothers thereafter unyoked the bullocks of the appellant and threw away the plough whereafter the accused left the place, rushed to his house situate nearby giving threats and appeared on the spot with a gun in his hand. He fired a short at Swami Raj and Chuni Lal who received the injuries and both of them were injured. When Faqir Chand went to assist the injured, the appellant fired another shot which hit Faqir Chand. Thereafter the appellant went towards the place where Man Singh was standing and reaching there he fired another shot which hit Man Singh on the chest as a result of which he fell down and died on spot. In the meantime one Ghulam Mohd. Parrey also came on spot and tried to pacify the appellant but as he was bent upon to kill all the members of the informant's family, the informant and another brother Shankru managed to escape and reached the police station along with one Rattan Singh to lodge the report. The whole of the incident had taken place on account of the alleged long standing dispute between the parties regarding the piece of land over which the occurrence took place. The appellant is alleged to have dispute with Man Singh deceased also regarding another piece of land and a path way.
3. After registering the case as FIR No. 69 of 1981 the police officers of police station Doda proceeded towards the, place of occurrence to conduct the investigation. While the police party headed by the SHO were on their way, they found the appellant coming from the opposite direction and as soon as he saw the police men apprehending him he fired a shot on the police party from the gun, which he was holding, hitting a constable. The police claims to have overpowered the appellant and seized the gun from his possession. A separate case was registered against the appellant for the alleged occurrence of firing upon the police party. After his arrest the weapon of offence was recovered from the possession of the appellant. The police also recovered some empty cartridges at or near the place of occurrence and recovered some live cartridges, a few kilograms of lead and a couple of gun licences from the house of the appellant. The dead body of Man Singh was taken to hospital at Doda where post-mortem examination was conducted during the course of which a number of pellets were extracted from the dead body and were seized by the police. Some pellets were recovered from the body of Swami Raj, Faqir Chand and Chuni Lal when they were examined and medically treated in the hospital.
3A. In order to prove the case against the appellant the prosecution produced and relied upon the testimony of Thakru, Shankar Lal, Rattan Lal, Swami Raj son of Mehar Singh, Ghulam Mohd. Parrey, Swami Ram son of Dindayal, Chuni Lal, Hari Lal Numberdar, Mohammad Abdullah Chowkidar, Faquir, Din Dayal, Bhagat Ram, Heem Raj, Omprakash Head constable, Dr. Farooq Ahmad Tak, Dr. Jagdish Raj, Ghulam Hyder, Abdul Roaf Patwari, Mohd. Iqbal, Ghulam, Abdul Karim and Sheikh Hakim ud din SI as witnesses for the prosecution.
4. The appellant produced Wazir Chand, Gian Chand s/o Roop Chand, Beli Ram, Ram Dei, Mehar Nath and Dr. Ram Rattan as witnesses in defence.
5. After perusal of the case and hearing the arguments of the prosecution and the defence, the trial Court held the appellant guilty, convicted and sentenced him as stated hereinabove.
6. We have examined the evidence led by the parties, perused the record of the case and heard the learned Counsel appearing in the case.
7. The learned Counsel appearing for the appellant has submitted that the appellant is entitled to be acquitted because the prosecution has failed to prove the case against him beyond reasonable doubt as is the mandate of criminal jurisprudence. According to him the case against the appellant has been concocted and fabricated with the mala fide intention of wrongly involving him in the case. On account of the alleged contradictions in the prosecution story and the version of the prosecution witnesses, the whole of the case, according to the learned Counsel has become doubtful, entitling the appellant benefit of doubt. He has further submitted that even if the version of the occurrence as detailed by the prosecution is admitted, the appellant is entitled to be acquitted because he had inflicted injuries and caused the death of the deceased in the exercise of the right of self-defence. According to him the appellant had a right to cause injuries and the right of self-defence was available to him till the time he evicted the alleged trespassers from the land in his occupation. According to him, the appellant had also received injuries which the prosecution had not explained entitling him to the benefit of doubt or the self-defence. He has further submitted that the prosecution has failed to prove that Man Singh was found dead outside the disputed land. According to him Man Singh had also died in the land allegedly in possession of the appellant which was forcibly tried to be occupied by the injured and the deceased Pointing out to certain discrepancies regarding lodging of the FIR, starting of investigation, seizure of incriminating articles and possession over the disputed land, the learned Counsel has submitted that the prosecution has miserably failed to prove any case against the appellant. According to him the appellant being alone was attacked by the complainant party in consequence of which he received injuries. As prosecution had failed to seize blood from the place where Man Singh is stated to have received the injuries the same was fatal for the prosecution case, entitling his client to the benefit of acquittal. This omission according to the learned Counsel is a, serious infirmity probabilising the belief that the site plan showing Man Singh to have died at a distance was prepared much long after 15-7-1981 after due deliberations in a bid to negative the right of self-defence of person and property which allegedly vested in the appellant under the circumstances of the case.
8. The learned G.A. appearing for the prosecution has submitted that the discrepancies pointed out by the learned defence counsel in fact do not exist and even if assumed to be existing are not so serious as to disprove the case of the prosecution. Discrepancies referred to by the learned defence counsel were not with respect to the main facts and. circumstances of the case. Right of self-defence was not available to the appellant as the disputed land had been put in the possession of the complainant party by the panchayat concerned. The appellant did not have the right to forcibly evict any person or if resistence was shown by the complainant party, to his illegally occupying the land, could justify him to cause the grievous injuries to them with gun shots resulting in the death of Man Singh.
9. The bone of contention between the complainant party and the appellant is a small piece of land measuring about 1 1/2 marla of land shown as No. 18 in the site plan Exp. HD/2. This land is the property of the State regarding which rival claims have been raised by the parties to the litigation of having cultivated it for the purposed of agriculture. According to the site plan a plough was found lying near the place of occurrence which was seized. Surrounding this land is the property of Din Dayal of complainant party. The deceased Man Singh is alleged to be standing at point No. 28 in the site plan who was fired at by the appellant from point No. 27 which is alleged to be 277 steps away from point No. 25, a part of the disputed land. In other words Man Singh has been found to be shot dead at about 277 steps away from the land in dispute. In the site plan Ex. PAR/1, point No. 1 is a place wherefrom the dead body of Man Singh was recovered and point No. 2 is the disputed land measuring about 2 marlas. Distance between Point No. 1 and Point No. 2 is of 627 feet. The disputed land is in Khasra No. 436/3 which is the State property in village Koti Tehsil and District Doda. In the site plan EX. PHD/2 the land belonging to the Forest Deptt. brought under cultivation by the appellant has been shown at Points 9, 10, 11 and 12 which does not in any way adjoin the land in dispute. The house of the appellant is at about a distance of 460 steps or four jareebs from the land allegedly in dispute. After looking at the topography of the place of occurrence, it had to be seen as to whether the occurrence as alleged by the prosecution had taken place or not and as to whether the appellant had the right of self-defence of his person and property to cause the injuries and death and if so to what extent.
10. The accused appellant and the complainant party of Din Dayal happened to be relation of each other. According to Thakar Singh, the complainant, the appellant trespassed into the land hereinafter referred to as disputed land on 15-7-1981 at about 8 a.m. and he wanted to plough the said land. When he was asked to desist from ploughing the land by Din Dayal the father of the witness, the appellant did not agree. Din Dayal called Chunilal, Swami Raj, Faqir Chand and Thakur Singh who also persuaded the appellant to desist from ploughing the said land, but he did not agree. Beli Ram is also alleged to have been called on spot and his persuasions also failed. Man Singh was with the cattle and had asked the appellant to desist from unauthorisedly ploughing the land by shouting from a distance. The witness, his father, Swami Raj, and Chuni Lal unyoked the bullocks of the appellant which infuriated him and he ran towards his house shouting that he would teach a lesson to all, It is stated that after some time the accused came on spot with a gun and shot at Chuni lal and Swami Raj by aiming at them in result thereof both of them were injured, when the witness and Faqiru P.W. went to assist the injured the appellant is alleged to have aimed and shot at Faqiru which hit his right arm. Swami Raj was injured in the legs by the fire. Chuni Lal had received a gun shot on the left arm. After Faqiru was injured, the appellant is alleged to have rushed towards Man Singh who was with his cattle at a distance of about 2/3 jareebs whereupon Man Singh cried that he should be saved. The appellant aimed and shot at the chest of Man Singh, who after receiving the shot fell down and died on spot. The appellant thereafter again loaded the gun and tried to find out the witness and Shankeru who had fled from the scene of occurrence. The first information report Ex. PA was lodged by him at Police Station Doda on the same date at about 10.30 a.m. After lodging of the report the police accompanied the witness and when they were proceeding to the place of occurrence the appellant was found in the way, armed with a gun. When the police was told that the appellant was the culprit and police wanted to apprehend him he fired at the police party injuring a police constable and as he was trying to re-load his gun, he was overpowered by the other police constables and arrested. The gun was seized by the police. The witness has tried to explain that the said land was in occupation of Din Dayal, his father and the appellant had tried to forcibly occupy the same with force. He has admitted that the disputes between the accused and the complainant party were referred to panchayat who had got all the matters compromised. According to the compromise the appellant had to give passage from his land to the complaint party, in consideration of which they had to abandon the possession of the two marlas of land in dispute. He has admitted the contents of the compromise deed EXPDA. It is further stated that Man Singh was a relation of the appellant. The witness had denied the suggestion that the appellant was attacked by Chuni Lal who had caused injury on his head. He has also denied that the accused was ever injured and had fallen unconscious. He has categorically stated that he had not seen any injury on the person of the appellant. During cross-examination he has categorically stated that Man Singh was not in or near the land in dispute but was away along with his cattle in a nearby pasture at about a distance of 300 steps, The whole occurrence had taken place in about 45 minutes. The accused had come from his house with a gun after about 15 minutes when his bullocks were unyoked by the complainant party. He has stood the test of cross-examination with respect to the injuries caused to the other injured by the appellant. Swami Raj has corroborated the statement of this witness (Thakur Singh) and after perusal of his statement we have not noticed any major discrepancy.
11. Ghulam Mohmmad Parrey P.W. has submitted that he heard some noise whereafter he proceeded to the place of occurrence but as he had proceeded few steps, he heard 2/3 gun shots but he could not see the occurrence or any other person, as he was away from that place. He had however seen appellant running from the place of occurrence. He saw the dead body of Man Singh. Some incriminating articles were seized by the police in his presence vide EXPGM-1 to EXPGM-6. He has however submitted that the disputed land was initially brought under cultivation by Din Dayal but thereafter the possession of the same was delivered to the appellant at the instance of the panchayat. According to him the appellant was in possession of the disputed land for a period of six months prior to occurrence. He has also stated that he saw some blood stains on the head of the appellant in the police station but could not see any injury on his head which was bandaged.
12. Din Dayal P.W. who is the real brother of the appellant and father of the complainant has supported the case of the prosecution as narrated by Thakur Singh P.W. He has however admitted that the matter pertaining to the dispute of two marlas of land was referred to panchayat who had decided to deliver its possession to the appellant but according to him the said compromise could not be acted upon on account of the indifferent attitude of the appellant. He admitted the contents of compromise Exp. DA but had denied the delivery of possession to the appellant. He has also denied the suggestions of the defence in so far as causing of injuries to the appellant is concerned.
13. Heera Lal Numberdar P.W. has proved the seizure of the dead body of the deceased and the recovery of empty and live cartridges along with lead and licences from the house of the appellant. The lead seized is allegedly used for manufacture of cartridges to be fired by the gun seized from the appellant in the case.
14. Shanker Lal, P.W. is the son of the deceased who besides corroborating the statement of Thakur Singh, has submitted that his father was taking his cattle for grazing to the pasture in the forest when he was fired at and injured in consequence of which he died. Minor discrepancies in his statement have been pointed out by the learned defence counsel with respect to the arrival of the police on spot. We have examined the whole of the statement of t his witness and are of the view that there are no major contradictions which would render his statement unbelievable.
15. Mohmmad Abdullah P.W. has also proved some seizure memos prepared in the case with respect to the incriminating articles recovered from the residence of the appellant. He has however categorically stated that the dead body of Man Singh was lying at a distance of about 2/3 jareebs from the disputed land. The witness has further submitted that the land in dispute was in the possession of Din Dayal and not of the appellant.
16. P. Ws. Bhagat Ram and Hem Raj have proved the seizure of the clothes of the deceased and some articles,
17. Abdul Roaf P.W. Patwari has stated that he prepared the site plan EXP-AR/1 on 16th July, 1981 at the instance of the police and according to their instructions.
18. Swami, Raj, Chuni Lal and Faqir Chand P.Ws. have corroborated the testimony of Thakur Singh P.W.
19. Ghulam Hyder Tak P.W., who was Theater Assistant in District Hospital Doda has proved the recovery of pellets seized vide EXAM/4 and EXPM/11. He has however stated in the cross-examination that he does not know the persons from whose body the aforesaid pellets were recovered.
20. Abdul Karim PW. has stated that he is an employee of CD and NES Deptt. and was Secretary of the Panchayat. On 22-10-1980 deceased Man Singh has filed an application against the appellant and others and has proved the contents of the said application.
21. Sh. Om Prakash Head constable has proved seizure memos EXPBR, EXPM/12 and EXPM/13 by which the clothes of the deceased were seized.
22. Ghulam Mohd. P.W. who was the surpanch of Panchayat Dhar has stated that during the year 1980 Man Singh deceased had filed some application with respect to a dispute concerning some land. He issued the notice to the parties but consigned the (same to) record on their failure to appear before the panchayat.
23. P.W. Mohd. Iqbal S.I. conducted the partial investigation of the case and P.W. Sheikh Hakim Din SHO completed the rest of the investigation in the case.
24. The appellant in his statement has denied the accusations levelled by the prosecution against him and has submitted that he was injured by the complainant party and forcibly evicted from the land in his possession. .
25. D.Ws. Wazir Chand, Beli Ram, Mehar Nath, Gian Chand son of Roop Chand, Gian Chand s/o Chandu, Smt. Ram Dei have admitted the occurrence and dispute in which the appellant was involved with respect to the disputed land. They have also not denied the death of Man Singh and injuries to the other witnesses. It is however stated by all the defence witnesses that the disputed land measuring about two marlas was in possession of the appellant and not the complainant party. They have also stated that the appellant was injured during the occurrence and the aforesaid injuries were caused to him by the complainant party.
26. The learned defence counsel has submitted that as the appellant was proved to be in possession of the disputed land, he had the right of self-defence of his person and property to cause the injuries to other witnesses and death of Man Singh. Relying upon the finding of the learned Sessions Judge wherein he has held,
In fairness to the accused it must be held that there is ample evidence on the file to indicate that in pursuance of the panchayatnama EXD-A the possession of the disputed land had been handed over to the accused prior to the occurrence. It is also clear that when the accused came to the spot and started ploughing the land a number of persons belonging to the complainant party unjustifiably prevented him from doing so. They also unyoked his bullocks and assaulted him.
He has submitted that the trial court has wrongly convicted and sentenced the appellant.
27. For properly appreciating the argument of the learned Counsel it has to be seen firstly as to whether the appellant was in possession of the aforesaid disputed land and if so to what extent could he cause the injuries in exercise of his alleged right of self-defence of his person and property. A perusal of Annexure DA, a compromise deed, executed on 6-6-1980 by the parties with respect to the aforesaid disputed land, it was agreed between the appellant and Din Dayal, his real brother, that all the disputes with respect to the land and the passage stood compromised through the panchayat and all the brothers would be bound by them. Even though there is no mention of any specified dispute pertaining to land or the passage yet the aforesaid compromise is an acknowledgement of the fact that the disputes existing between the brothers stood settled and in acknowledgement of the same, the aforesaid document annexure DA was executed. Ghulam Mohd. Parrey P.W. has stated in his examination-in-chief that the possession of the disputed land on which the appellant was ploughing on the date of occurrence was delivered to him in consequence of the compromise arrived at before the panchayat about six months prior to the date of occurrence. All the defence witnesses have stated in one voice that the possession of the aforesaid land was with the appellant. The witnesses of the prosecution have also admitted the existence and reference of disputes to the panchayat. They have also admitted the execution of compromise deed EXPDA. They have however tried to show that the said compromise was never acted upon and the appellant did not get the possession of the disputed property. On the basis of evidence led by the parties we have come to the conclusion that the prosecution has not satisfactorily proved that the aforesaid disputed land measuring about two marlas was in possession of Din Dayal or any member of complainant party. From the record it has been probabilised that the said land may have been, in the possession of the appellant. The learned Govt. Advocate has not assailed the finding of fact arrived at by the learned Sessions Judge as referred to hereinabove holding that the disputed land was in possession of the appellant who had started ploughing the same on the date of occurrence when a number of persons belonging to the complainant party unjustifiably prevented him | from doing so. They unyoked his bullocks and assaulted him.
28. After holding that the prosecution has failed to prove the possession of the complainant party over the disputed land we are of the opinion that the appellant must have been in possession of the same on the date of the occurrence when he was prevented from ploughing it by the complainant party. His bullocks were unyoked and he was assaulted. It has however to be seen as to whether the appellant had the right of self-defence which extended to the extent of firing gun shots, injuring number of persons and killing Man Singh deceased who was not accompanying complainant party and was standing at a distance. If the contention of the learned defence counsel is accepted that the right of self defence was available to the appellant to the extent of causing the aforesaid injuries to a number of witnesses including Man Singh who died in consequence thereof, the appellant may be entitled to acquittal,
29. On facts we have come to the conclusion that the occurrence had taken place in which the complainant and the appellant were involved which resulted in the death of Man Singh and injuries to Swami Raj, Faqir Chand and Chuni Lal. It is also proved that the complainant party was not in possession of the land regarding which the dispute had arisen and that the appellant was prevented from ploughing the land under his occupation. In view of this finding of f act, all the objections raised by the learned defence counsel with respect to the occurrence or alleged discrepancies have no force and cannot be accepted. We are convinced that the present case is not a case of fabrication or wrong involvement of the appellant in the commission of the crime without there being any occurrence.
30. The right of private defence is founded on the principle that law allows resort to repel force with the object of warding off an injury but not for taking revenge. It cannot be resorted to a retaliatory measure for any past act but is available to one who is suddenly confronted with the immediate necessity of averting an impending danger not created by him. The right is essentially of defence and not of retribution. The law does not contemplate that the citizens become (cowards) but it also does not give a citizen the right to take the law into his own hands. The law contemplates that every citizen would hold his ground manfully against aggression and he should not flee away when attacked by criminals. No one is expected to exhaust all other available steps before exercising his right of private defence. The right of private defence must be fostered in the citizens of every free country. It is now established that the 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 exceed its legitimate purpose. The exercise of right of private defence must never be vindictive or malicious. The right of private defence serves social purpose. Such a right is intended to put a restraint on bad characters and to encourage the right spirit of a free citizen. It has been rightly pointed out by the Supreme Court in AIR 1968 SC 702 : 1968 Cri LJ 806 that there is nothing more degrading to the human spirit than to run away in the face of peril. The right of private defence has been held to be a defence and not of punishment and retaliation. : 1974CriLJ1035 . While the grant of the right is intended to discourage cowardice and meek submission to the aggression it does not extend to encourage private warfare and to be a substitute for the decision of the Court, the decision by the private parties by taking law into their own hands and using force according to their choice. No citizen can be allowed to invoke self-defence as a device or pretence for provocation in order to slay his assailant and then claim exemption on the ground of self defence. The right is circumscribed by the statute available only when the circumstances clearly justify it and cannot be allowed to be pleaded or allowed as a pretext for vindictive, aggressive or retributive purpose. It need not be specifically pleaded by the accused but may be probabilised from the evidence led in the case. If the plea of self-defence arises from the material on the record, the court would be justified to give its benefit to the person claiming such a right. Merely because the accused had not specifically pleaded such right, he cannot be deprived of its benefit, if there is material on the record to justify its benefit. The standard of proof required to discharge the burden of proof resting on an accused person is not as strict and heavy as the standard of proof necessary for prosecution to establish that the accused committed the offence. : 1979CriLJ584 . The plea of self-defence need not be proved to the hilt but it should be sufficient to create reasonable doubt in prosecution version. The quantum of proof required f or such a plea is not 'proof beyond reasonable doubt' but if the accused probablises the circumstances justifying such a right, he would be entitled to its benefit.
31. In the instant case the prosecution has failed to prove that Din Dayal of the complainant party, was in possession of the disputed land measuring 2 marlas. In view of our finding that the defence has probabilised the possession of the appellant over the land in dispute, it has to be seen as to whether he was justified in causing the death of Man Singh and injuring other persons. It has also probabilised that the appellant who was in possession of the disputed land was attacked by the complainant party and prevented from ploughing the land. It is also in evidence that he was maltreated and assaulted. Under these circumstances the learned Counsel for the appellant has argued that his client was entitled to the right of private defence to cause the injuries and death and that right extended till such time when he actually dispossessed the trespassers who had forcibly occupied the land under his occupation. We cannot agree with such a contention. The right of self defence to a person in possession of the property against a person trespassing into his land is available to him till such time he is actually and factually dispossessed from the land and the process of dispossession is not complete as against him. During the process of dispossession, the person who is actually in possession has a right to resist his dispossession and cause such injuries to the trespassers as are necessary for averting such a trespass. Once the dispossession is complete, the person so dispossessed cannot take law into his own hands thereafter at any time according to his convenience and under the umbrella of right of self-defence, cause injuries or death of the trespassers who had actually dispossessed him from the land earlier in his occupation. If such a right is conferred upon the citizen to evict the trespasser at any time according to his convenience and by using force, that would defeat the very purpose for which such a right was conferred upon him and result in chaos in the society. As we have already held that the right of self defence is not a retributive right and cannot be used for taking vengeance or made a substitute for the legal process, it cannot be held that the right of private defence is available to citizen and extends till such time when he actually recovers the possession by use of force from the trespasser. As the appellant has been held to be in possession of the disputed piece of land wherefrom he was forcibly tried to be evicted, he had the right of self-defence to cause injuries for retaining his possession before he was actually and factually dispossessed. When the appellant was thrown out from the land and his bullocks were unyoked he had the right to use the force against the trespassers for maintaining his possession. As the right of self-defence cannot be weighed in golden scales and has to be determined, keeping in view the state of mind of the man confronted with such a situation it cannot be said that he had no right to go to his residence, bring a gun and fire at the persons who were trying to dispossess him. The lapse of about 15 minutes time of his running from the spot and bringing a gun to prevent the trespassers in accomplishing the task of trespass cannot be said to be a retributive action under the circumstances of the case. The complainant party which out-numbered the appellant had tried to dispossess him and in that process had forced him to leave the disputed land, unyoked his bullocks and tried to cause harm to his person and property. Under such circumstances, as we have held, that a citizen cannot be supposed to be a coward and the appellant had a right to resist his dispossession by using force against the complainant party who had come in number for dispossessing him from the land to which he had been put in possession by the intervention of panchayat. The appellant was, therefore, justified in firing at and injuring Swami Raj, Chuni Lal and Faqir Chand. Under these circumstances the conviction and sentence awarded to the appellant for causing injuries to Swami Raj, Chuni Lal and Faqir Chand under Section 307, RPC cannot be upheld and is hereby set aside.
32. So far as the death of Man Singh is concerned, it has been proved by the prosecution beyond reasonable doubt that he was not accompanying the complainant party who had tried to forcibly dispossess the appellant. It is also in the evidence that he was not associated with the complainant party so far as the dispossession of the appellant from the disputed land is concerned. There is reliable evidence to hold that Man Singh was not armed and there was no reason to believe that he was either accompanying the complainant party or was perpetrating the action of dispossessing the appellant from the land under his occupation. It is also established by the prosecution that Man Singh in fact was going to the forest pasture along with his cattle for grazing them when he was shot at by the appellant. 11 is also proved that there had been some litigation between the appellant and the deceased which was compromised earlier. There was no justification for the appellant to have fired at Man Singh who is proved not to be associated with the complainant party at the time of occurrence when the appellant was tried to be dispossessed from the land under his occupation. There is nothing on the record to suggest that Man Singh had ever provoked the appellant which could justify him to exercise the so-called right of self-defence or even exceed the same. Keeping in view the topography of the situation, the evidence of the prosecution, the statement of the accused and the evidence led in defence, it is proved beyond doubt that he ran after Man, Singh, who was unarmed and going along with his cattle to the pasture away from the place of occurrence, shot at and killed him on spot. The appellant therefore was not entitled to claim any right of self-defence in so far as the causing of the injuries to Man Singh in consequence of which he died is concerned. The prosecution has therefore, proved beyond reasonable doubt that the appellant committed the offence of murder of Man Singh punishable under Section 302, RPC. The learned Counsel for the appellant has argued that as the appellant has been proved to be injured, he is entitled to claim a right of self-defence because according to him the prosecution has failed to prove the injuries on his person. It is true that the prosecution is under a legal obligation to prove the injuries to the accused person if he is found to be injured at the time of arrest. It does not however, mean that if the prosecution f ails in proving the injuries, the accused in all cases would be held entitled to claim the right of self-defence. The injuries allegedly noted on the person of the appellant are:
1. an abrasion over the scalp about the size of 1/2' X 1/2'.
2. lacerated wound on the left middle finger about 2.5 cm. X 1,5 cm. x 0.2 cm.
3. a bruise over the right buttock with parallel margins, red in colour, about 3' X 1' in size.
4. another bruise over the right buttock with parallel margins, red in colour, about 3'' X 1' in size.
All the injuries are simple in nature and caused within 48 hours before the date of examination on 14-7-1981. It has been admitted by the doctor that the injuries could have been self-inflicted. The nature of the injuries noted above would show that the appellant was not entitled to fire at and cause the death of the deceased. In view of our finding that the appellant was entitled to exercise the right of self-defence in so far as Swami Raj, Chuni Lal and Faqir Chand are concerned, the injuries found on his person after his arrest are not material so far as the death of Man Singh is concerned.
33. In view of our finding that the appellant had a right of self-defence in causing injuries to Swami Raj, Chuni Lal and Fiqir Chand, his conviction and sentence under Sections 326/324, RPC is not sustainable. Under the circumstances the appellant is acquitted of the charge under Section 307, RPC for attempting to murder Chuni Lal, Swami Raj and Faqir Chand and causing injuries with sharp edged and deadly weapon under Section 326/324 RPC to the said persons. His conviction and sentence for the aforesaid offences is set aside. However the appellant is proved to be guilty of the commission of the offence punishable under Section 302, RPC in causing the death of Man Singh deceased. We uphold the conviction and sentence of the appellant for the commission of offence under Section 302, RPC. This appeal and the reference are disposed of.