State of U.P. vs Ram Dayal

J.C. Gupta and S.K. Agarwal, JJ.—Both these appeals are directed against the common judgment and order dated 27.3.1980 passed by the then Sessions Judge. Lalitpur in Session trial No. 57 of 1979 and in connected trial 114 of 1979 acquitting accused Ram Dayal and Jaggu of the charge u/s 302 read with Section 34 of the I.P.C.

The prosecution case, in brief, was that the deceased Devi and Bhurey, the father of accused Ram Dayal and accused Jaggu were real brothers. Daya Ram P.W.I is the son of the deceased Devi. When on 16.4.1979 deceased Devi and his son Daya Ram were collecting ''mahua'' from their mahua tree in village Kedesra Kalan, both the accused Jaggoo and Ram Dayal armed respectively with lathi and iron shot lathi (Lohangi) came there at about 6 in the morning and they questioned Devi deceased why he was collecting ''mahua fruits''. Devi replied that it was his ''mahua'' hence he was collecting the same. Hearing triis both the accused started assaulting the deceased with their respective weapons. Deceased fell down on the ground. Bhuri P.W. 3 and Gyasi P.W. 2 who were also collecting mahua from their nearby trees appeared at the scene of occurrence on hearing cries of Daya Ram and his father Devi and challenged both the accused who soon ran away with their weapons. Daya Ram took his injured father on the cot to the police station Tal Behat with the help of villagers and dictated an oral report Exhibit Ka-1. On the basis of which Case Crime No. 51 of 1979 under 308, I.P.C. was registered bySection Constable Clerk Arjun Singh P.W.5 in the presence of Station Officer Shyam Manohar Tripathi P.W.8. Shri Tripathi immediately started the investigation and recorded the statement of Daya Ram P.W. 1 at the police station itself. Devi injured was sent to Hospital with Constable Ramanand and his injuries were examined by Dr. H.N. Chandsauriya, Medical Officer District Hospital on the same day at 9.50 a.m. and he found the following injuries on the person of Devi:

Injuries

(1) Lacerated wound 12/4" � 1/4" � bone deep on the left side of scalp 4" above the left ear. Margin irregular contused bleeding present from wound.

(2) Lacerated wound 1" � �" � bone deep on the right side of back of scalp just 1 1/2 perito occipital protuberance margin irregular contused bleeding present from wound.

(3) Contusion 6" � 3/4" on the outer side of left elbow joint and upper 1/3rd of left forearm colour read placed obliquely.

(4) Contusion with swelling 2" � 2" on the outer side of lower 1/3rd of left forearm. Red.

(5) Contusion 2" � 1 1/2" with traumatic swelling on the back of wrist left and dorsum of the hand.

(6) Contusion 3" � 3/4" on the left side of back and scapular region placed obliquely red in colour.

(7) Contusion abraded 2" � 1" on the right side of back scapular region placed vertically red in colour.

(8) Contusion 3" � 1" on the right side of back just 1/2" above the right iliac crest.

(9) Contusion with swelling 3 1/2" and 1" on the left side of back just 1/2" above left iliac crest.

In the opinion of the doctor all the injuries were fresh and caused by blunt weapon. Injuries No. (1) and (2) were kept under observation and X-ray was advised to exclude internal body injury. Rest of the injuries were simple. Medical report is Exhibit Ka-4.

The Investigating Officer S.M. Tripathi reached the place of incident on the same day and recorded the statements of Smt. Bhuri and Gyasi and after making inspection of the place of incident prepared site plan Exhibit Ka-13. He also collected plain and blood stained earth from the place of incident in separate containers Exhibit 1 and 5 through memo Exhibit Ka-14.

Devi succumbed to his injuries on the same evening at 4.20 p.m. Memo of his death was sent through ward boy Ram Naresh P.W. 11. On receiving the information of the death of Devi case was converted u/s 304, I.P.C.

S.I. Ram Kishore Singh conducted inquest and sent the dead body of Devi for post mortem examination with constable Kamta Prasad P.W. 12 and constable Phool Singh, Dr. H.N. Srivastava P.W. 4 performed the post mortem examination of the dead body of Devi on 17.4.79 at 11 a.m. and he found the following ante mortem injuries:

Lacerated wound 12/4" � 1/4" � bone deep on the left side of scalp 4" above the left ear. No bleeding margin irregular.

Lacerated wound 1" � 1/4" � deep bone. Right side back of head 8 cm. away and backward from right ear tip margin lacerated.

Contusion 6" � 3/4" on the anterior side of left elbow joint, reddish colour.

Contusion 1" � 2" on the left fore arm outer aspect lower 1/3rd".

Contusion 2" � 1 1/2" on dorsum of wrist left.

Contusion 3" � 3/4" on scapular region of left side in middle.

Contusion abraded 2" � 1" on scapular region of right side in middle.

Contusion 3" � 1" on back of right side 1/2" above iliac crest.

Contusion 3 1/2" � 1" on left side back �" above left iliac crest.

In the internal examination multiple fracture of peritooccipital bone with depression was found embedded in brain tissues under injury No. 2. Brain was found contused and lacerated under injury No. 2 and contusion was also found under injury No. 1. In the opinion of the Doctor cause of death was due to head injury described in the post mortem report Exhibit Ka-3.

After completing the investigation police submitted charge-sheet u/s 304, I.P.C. against both the accused persons who were duly tried by the learned Sessions Judge. At the trial the learned Sessions Judge framed a common charge u/s 302/34, I.P.C. against both the accused persons that they committed murder of Devi Singh by intentionally causing his death in furtherance of their common intention.

In order to prove its case the prosecution produced 12 witnesses in all. Out of whom Daya Ram P.W. 1, Gyasi P.W. 2 and Bhoori P.W. 3 were witnesses of fact. Both the accused persons in their statements recorded u/s 313, Code of Criminal Procedure denied the prosecution allegations and their case is of total denial. They pleaded that they were not present at the time of incident. They produced no witness in their defence.

The learned Sessions Judge without adverting to the evidence of the witnesses on the question of presence of accusd persons and their participation in the commission of the offence in question has acquitted them simply holding that the prosecution evidence with regard to the right of the deceased to collect Mahua at the relevant time was inconsistent, hence the possibility of the accused acting in the right of private defence of property was not ruled out. The learned Sessions Judge recorded that finding as follows:

It is admitted by prosecution that the deceased and the accused are closely related, the accused being sons of the brother of the deceased. They live in the same Bakhar and they had joint tenancy. Regarding the disputed mahua tree also it is admitted by Daya Ram son of the deceased that the mahua tree is in the field of one Meharban Singh and does not stand in the plot of deceased. He has further admitted that one year his father used to collect mahua from the tree while in the other year the mahua was collected by the accused so the joint ownership of mahua tree is admitted to by the son of the deceased P.W. 2 has admitted that there was dispute regarding four or six mahua trees between the deceased and the accused. P.W. 3 Bhoori has admitted that the mahua of the disputed mahua tree is collected one day by the deceased while the next day it was collected by the accused. From all this it is clear that the mahua tree was either joint or there was dispute of ownership regarding the mahua tree according to even the prosecution evidence. The collection of mahua from the said tree by both the sides is admitted to by the prosecution. It is however, disputed as to when and in what manner the mahua was collected by the deceased and the accused. The prosecution had given different versions. Thus, there is possibility that the deceased was collecting mahua in an unauthorized way and the accused exercised their right of private defence of property as inspite of objection of the accused the deceased continued to collect mahua. Thus, the accused had every right to exercise the right of private defence of property and as such the accused are entitled to benefit of doubt and acquittal of the charge levelled against them.

We have heard learned Additional Government Advocate for the Appellant and Shri R.K. Shangloo, learned Counsel appearing for the accused-Respondents. We have also perused the record.

Learned A.G.A. appearing for the prosecution, assailing the impugned order of acquittal, submitted before the Court that from the evidence on record it is fully established beyond doubt that it were the accused-Respondents who caused injuries to Devi who later on died on the same day as a result of those injuries and the view taken by the learned Sessions Judge that the accused persons had exercised the right of private defence of property is palpably erroneous particularly when such a plea was never put forward by the accused before the Court below nor there was any material in support of the same. It was further argued that in any view of the matter the learned Sessions Judge failed to apply the correct legal position to the facts of the present case as even if it be held that the accused had any such right, that would not extend to causing of death of the deceased or such bodily injuries as were sufficient to cause his death in natural course. Shri R.K. Shangloo learned Counsel for the Respondents in a roost humble and honest manner simply canvassed that the circumstances appearing in the prosecution evidence suggested that the assault on the deceased was made in exercise of the right of private defence of property and at best it would be a case of exceeding that right.

The principles with regard to interference in appeal against acquittal are well-settled. While hearing an appeal against acquittal this Court has full powers to review at large the evidence upon which the order of acquittal was founded and to reach to its own conclusion that upon the evidence the order of acquittal is liable to be reversed. Such powers are in no way different from those in appeal against conviction and no limitation in law has been placed upon those powers. While assessing the guilt or otherwise of the accused it is the duty of the Court to examine the correctness of the findings of the trial court and if necessary to reverse them on reappraisal of evidence for doing justice. If on one hand, it is the pious duty of the Court to ensure that no innocent person is punished merely on the basis of an accusation made against him but at the same time, it is also the solemn responsibility of the Court to respond to the society''s cry that a guilty person does get punished particularly in the present scenario of law and order prevailing in the society.

While dealing with an appeal against acquittal, the entire evidence must be examined and weighed on well recognized principles of appreciation of evidence and if on an overall assessment of the same it is found that the view taken by the trial court is most unreasonable, this Court has the power not only to set aside the order of acquittal but it also becomes its duty to do so, of course paying due attention to the grounds on which the order of acquittal was based and bearing in mind always that the presumption of innocence of accused which is available to him from the inception get further strengthened and reinforced after acquittal. Generally, this Court is slow in disturbing findings of fact recorded by the trial court particularly when such findings are based on appreciation of evidence because of the fact that the trial court had the advantage of watching the demeanour of the witnesses examined at the trial and two views could be reasonably taken on that evidence, the one taken by the trial court should prevail. The High Court while making its own assessment of the evidence and in reversing the judgment of the acquittal has to be cautious and it must not be forgotten that while doing so, its approach has to be governed by the overriding consideration flowing from the presumption of innocence of the accused and there must be substantial and compelling reasons for reversing a judgment of acquittal but this test should not be construed as a formula which has to be rigidly applied in each and every case and so it is not necessary that before reversing an order of acquittal the High Court in every case must characterize each and every finding of the trial court as perverse. The High Court should review and reappreciate evidence and after making an over all assessment of the same in the light of facts and circumstances appearing in the case it may either accept the order of acquittal or may reverse it.

In Sethu Madhauan and Ors. v. State of Kerala 1975 ACC 127, the Apex Court enunciated the following principles with regard to the powers of High Court in an appeal against acquittal:

In an appeal u/s 417 of the Code of Criminal Procedure against an order of acquittal, the High Court has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the dence the order of acquittal should be reversed. No limitation should be placed upon that power unless it be found expressly stated in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should give proper weight and consideration to such matters as (1) the view of the trial Judge as to the credibility of the witnesses. (2) presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any real and reasonable doubt; and (4) the allowaness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. The High Court should also take into account the reasons given by the Court below in support of its order of acquittal and must express its reasons in the judgment which lead it to hold that the acquittal is not justified. Further, if two conclusions can be based upon the evidence on record, the High Court should not disturb the finding of acquittal recorded by the accused is not unreasonable, the occasion for the reversal of that view would not arise.

In State of U.P. Vs. Krishna Gopal and Another, , Apex Court summarized these principles as follows:

The plentitude of the power of the appellate court to review and reappreciate the evidence cannot be limited under the supposed rule that unless there are substantial or compelling reasons or ''very'' substantial reasons or ''strong reasons'', the findings in a judgment of acquittal should not be interfered with. There is thus no immunity to an erroneous order from strict scrutiny. But the appellate court wherever it finds justification to reverse an acquittal must record reasons why it finds the lower court wrong.

In a recent decision in State of Uttar Pradesh Vs. Nahar Singh (Dead) and Others, , it has been held by the Apex Court as under:

If on re-assessment of the evidence, the appellate court comes to the conclusion that the guilt of the accused is established, the fact that the appeal is against the acquittal will be immaterial. However, if two views are possible, the Court, having regard to the basic principle that presumption of innocence of the accused gets strengthened by the fact of his acquittal by Court, should take the view that supports the acquittal of the accused.

Keeping in view the above mentioned principles, we now proceed to examine whether the acquittal of the accused Respondents was justified. A perusal of the judgment in appeal would show that the accused persons have been acquitted merely on the ground that the possibility of their acting in exercise of right of private defence of property was not ruled out. Before we proceed to examine the correctness or otherwise of his finding, we first think it appropriate and necessary to examine the evidence adduced from the prosecution side to find out whether the burden of proving its case beyond reasonable doubt has been duly discharged by the prosecution because in criminal cases the onus of proving the offence lies heavily upon the shoulders of the prosecution and that onus at no stage shifts to the accused. It is no part of the prosecution duty to somehow hook the crook. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. Therefore, we first proceed to examine the question whether from the evidence adduced at the trial, has it been established beyond doubt that Devi was assaulted by the Respondents at the time and place and in the manner alleged by the prosecution?

Neither before the Court below nor before this Court, the factum of Devi receiving blunt weapon injuries in the morning on 16.4.79 has been assailed or disputed. It is also not in dispute that Devi succumbed to his injuries on the same evening at 4.20 p.m. in the Hospital. In the post mortem examination conducted on 17.4.79 at 11 a.m. by Dr. H.N. Srivastava, P.W.4, multiple fracture of perito-occipital bone was found under injury No. 2 and the bone had embedded in brain tissues. Brain was found contused and lacerated under injury No. 2 and four ounce of fluid blood was found in skull cavity. The opinion of the Doctor that cause of death of Devi was due to ante-mortem head injury has not been assailed before us by the learned Counsel loor the accused Respondent. It is thus fully established from the evidence of the two Doctors, namely. P.W. 6. Dr. H.N. Chandsauria who medically examined Devi before his death and Dr. H.N. Srivastava. P.W.4 who prepared post mortem report Exhibit Ka-3 that Devi died a homicidal death on account of ante mortem head injury received by him in the morning of 16.4.79.

According to the prosecution case, it were the accused Respondents who caused injuries to Devi with lathi and lohangi on 16.4.79 at about 6 in the morning when the deceased was collecting mahua fruits from his mahua tree situated in the field of Meharban. In order to establish these facts, the prosecution relied upon the evidence of three witnesses, namely, Daya Ram P.W. 1. Gyasi P.W. 2 and Smt. Bhoori P.W. 3, their evidence may be stated in brief:

Daya Ram P.W. 1 is the son of the deceased. He stated that Ram Dayal and Jaggu, Respondents are his cousins inasmuch as Devi deceased and Bhurey the father of the accused persons were real brothers being sons of Mangli. The witness also stated that on the date of the incident, he and his father Devi were collecting mahua fruits when at about 6 a.m., both the Respondents arrived there. Jaggu accused was having a lathi while accused Ram Dayal possessed lohangi. The accused asked Devi why he was collecting mahua fruits. On this, his father replied that it was his mahua hence he was collecting the same. Hearing this, both the accused persons immediately started assaulting his father with lathi and lohangi causing injuries on his head and other parts of the body. His father fell down on the ground. On his cries, Gyasi P.W. 2 and Bhuri P.W.3, who were collecting mahua fruits in the nearby fields challenged the accused persons whereupon they ran away towards the village. According to this witness he then went to his village brought a cot and then took his injured father to the police station along with other villagers. At the police station, he dictated oral report Exhibit Ka-1. He further stated that Safa Exhibit 1, Shirt Exhibit 2 and Dhoti Exhibit 3, the cloths which the deceased was wearing at the time of incident were got stained with blood. His father died in the Hospital at about 4 in the evening. He also stated that the mahua tree was planted by his father. It was suggested to this witness that his father received injuries on account of a fall on stones but he denied this suggestion and clearly stated that the ground where his father fell down was even and not rocky. It may not be out of place to point here that Dr. H.N. Chandsauriya who had medically examined the injuries of Devi soon after the occurrence in clear words opined that the injuries could not be sustained by the deceased ''due to a fall on stones''. The witness has explained his presence at the time of incident by saying that he was also helping his father in collection of mahua fruits. It is commonly known that mahua fruits are always collected in the morning and since the mahua fruits are scattered at various places, collection is often made by more than one person so that collection process may be completed before the sun rises high in the sky because the mahua fruits lose their utility if the weather gets hot. Therefore, there was nothing unnatural if Daya Ram P.W. 1 had also joined his father Devi in the collection of mahua fruits. Significantly, no suggestion has been put to this witness that he was not present at the time of incident. The fact that first information report was also dictated by this witness at the police station without any delay further goes to support the claim of this witness of his being present with the deceased at the time of incident.

P.W. 2 Gyasi is a resident of same village and according to him, he was also collecting mahua fruits under his tree while Bhoori was collecting mahua fruits under her tree. Devi and Daya Ram were doing the same thing under their mahua tree. He corroborated the statement of P.W. 1 that both the accused persons came there armed with iathi and lohangi and asked Devi as to why he was collecting mahua and when Devi did not stop collection of mahua fruits both of them assaulted him with lathi and lohangi. According to him both the accused persons gave 4-6 blows each from their respective weapons but none of them repeated blow after the deceased fell down on the ground. To this witness also no suggestion was thrown that he had not witnessed the incident. Neither any enmity with any of the accused could be suggested nor could be shown that he was in any way interested either in the deceased or his son. He is absolutely an independent witness.

Smt. Bhoori. P.W. 3 has also supported the prosecution case and has narrated the entire details of the incident. Her presence at the time of incident has also not been disputed from the defence side. She is also a totally independent witness inasmuch as neither any enmity could be suggested to her nor she is shown to be having any interest in the complainant.

All the three witnesses produced by the prosecution are thus independent and most natural and their evidence is fully supported by the circumstances appearing in the case and by medical evidence as well.

From the evidence of the aforesaid witnesses it is, thus, fully established beyond reasonable doubt that the incident had occurred in the manner as alleged by the prosecution and it were the accused persons who assaulted the deceased Devi with lathi and lohangi and caused him injuries, on account of which he died on the same evening at 4.20 p.m.

It is now to be seen as to whether the accused persons had a right of private defence of property and if so to what extent?

Learned A.G.A. argued that the learned Sessions Judge has committed a gross error in extending benefit of doubt to the accused Respondents on a supposed plea of right of private defence of property without even noticing that no such case was either stated by the accused nor any suggestion in support of that plea was put to any of the witnesses and there was no sufficient material to extend that benefit to the accused persons. Shri Shangloo, learned Counsel for the accused persons on the other hand, submitted that even where plea of right of private defence is not raised by the accused persons in their statement recorded u/s 313. Code of Criminal Procedure and their case is of total denial, benefit of such a right cannot be denied to the accused if from the evidence on record such a right Hows. He contended theit it is open for the accused to argue even in a case of total denial that from the circumstances established from the prosecution evidence itself.accused are entitled to claim right of private defence.

It is well-settled law that the civil rule of pleading does not apply in criminal trials. Unlike in a civil case, it is open to a criminal court to give benefit to the accused of all the pleas even if the same are not stated by him in his statement given before the Court and if the Court does so, it cannot be said that the Court has made out a new case in favour of the accused from the one set up by the accused before the Court. If on examination of evidence on the test of preponderance of probabilities circumstances are established which bring the case within the ambit of an Exception, benefit thereof cannot be denied to the accused merely for the reason that the same was never claimed by the accused in his statement or that the same was not suggested to the witnesses.

In Gottipulla Venkatasiva Subbrayanam and Others Vs. The State of Andhra Pradesh and Another, . benefit of right of private defence was extended to the accused on the basis of proper appraisal of evidence and other material on record even though no such plea was pleaded by the accused in his statement before the Court rather he had pleaded alibi. The following observations made by the Supreme Court are worth noticeable:

When there is evidence proving that a person accused of killing or injuring another acted in the exercise of the right of private defence the Court would not be justified in ignoring that evidence and convicting the accused merely because the latter has set up a defence of alibi and set forth a plea different from the right of private defence. The analogy of estoppel or of the technical rules of civil proceedings is, in cases like the present, 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.

In Munshi Ram v. Delhi Administration AIR 1968 SC 702, the Supreme Court stated:

It is well-settled that even if an accused does not plea self defence, it is open to the Court to consider such a plea if the same arises from the material on record. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of that plea.

It has been held by the Apex Court in State of U.P. Vs. Lakhmi, , that burden of proving an Exception though undoubtedly is on the accused but the mere fact that accused adopted another alternative defence during his examination u/s 313, Code of Criminal Procedure without referring to Exception is not enough to deny him of the benefit of the Exception if the Court can cull out material from the evidence pointing to the existence of circumstances leading to the Exception. It is not the law that failure to set up such a defence would foreclose the right to rely upon the Exception once and for all. It is axiomatic that burden on the accused to prove any fact can be discharged either through prosecution evidence by showing a preponderance of probability or by adducing evidence in defence.

The rules regarding the discharge of burden of proof by the accused of his plea of applicability of a general or special Exception has been laid down by the Supreme Court in the cases of K.M. Nanavati Vs. State of Maharashtra, ; Chhagan Bhai Thakkar AIR 1964 SC and Pratap AIR 1970 SC 996 , approving Full Bench decision of this Court in Rishi Kesh Singh and Others Vs. The State, .

Therefore the position regarding the question as to in what circumstances the accused could be allowed to avail benefit of a general or special Exception is now well-settled and it is beyond the pale of doubt that in a case even where the accused has not raised such a plea in his statement given before the Court and takes an entirely different plea, including the plea of total denial, he could be still extended benefit of the Exception provided the facts attracting that particular Exception are borne out from the evidence on record. It is not necessary that such facts must be proved affirmatively beyond doubt and it is suffice if upon consideration of evidence as a whole, on the test of preponderance of probabilities, a reasonable doubt is created in the mind of the Court. If such a doubt is created, then also benefit is to be extended to the accused. The burden which rests on the accused to prove right of private defence is not of the same rigor as the burden of the prosecution to prove the guilt of the accused. It is not a proof beyond reasonable doubt but of preponderance of probabilities.

The learned Sessions Judge has acquitted the accused persons giving them benefit of the right of private defence of property. Right of private defence can be divided into two categories:

(1) As a total defence which entitles an accused to acquittal as in such cases no offence whatsoever can be said to have been made out against the accused (Section 96 to 106 of I.P.C.) and

(2) As a partial defence, which reduces an offence of murder to an offence of culpable homicide not amounting to murder (Exception 2 to Section 300).

In the present case, accused persons have not pleaded in their statements recorded u/s 313, Code of Criminal Procedure that they had acted in exercise of their right of private defence of property nor any suggestion to the same effect was thrown to any of the prosecution witnesses However, even in such a situation, we have still to examine to find out whether the defence of right of private defence of property still could be made available to the accused person on the basis of evidence and material brought on record from the prosecution side. P.W. 1, Daya Ram in his statement before the Court stated that the disputed mahua tree was situated in the fieid of Meharban Singh. It is further stated by him that his father and the accused persons lived in the same Bakhar and their cultivation was joint. He admitted that one year his father used to collect mahua fruits from the tree in question while the same was collected by accused in the other year. P.W.2 Gyasi stated that since before the incident, there has been a dispute between the accused and the deceased regarding 4-6 mahua trees. However, it has not been elucidated further if there was also any dispute in respect of the mahua tree in question. Smt. Bhuri P.W. 3 stated that mahua fruits of the disputed tree used to be collected one day by the deceased while the next day same were collected by the accused persons. It is. however, not clear from her evidence that she had any personal knowledge regarding the rights of the deceased or the accused persons of collection of mahua fruits. The learned Sessions Judge on the basis of the evidence of the prosecution witnesses has taken the view that the mahua tree was either joint property of the accused and the deceased or there was some dispute with regard to the rights of the parties of collection of mahua fruits and since the prosecution witnesses have given different versions in that regard, the possibility of the deceased collecting mahua unauthorisely and the accused exercising their right of private defence of property were not ruled out. This inference of the learned Sessions Judge is based on surmises and congectures as it was nowhere suggested to any of the prosecution witnesses that at the relevant time of incident, it was the turn of the accused persons to collect mahua fruits or that the deceased had no right to collect mahua fruits at that particular hour. None of the accused persons in their statement before: the Court stated that at the time of incident, it was their turn to collect mahua fruits and not of the deceased. We also cannot lose sight of the fact that both the accused persons arrived at the scene of occurrence fully armed with lathi and lohangi respectively. If there was any misunderstanding about the right of the deceased of collecting mahua fruits, the accused persons had no right to take law in their own hands and mounting attack on an unarmed aged person. Mere claim of a right to property is not enough to give any person the right to cause injuries to another claimant. The right of claim cannot include the right to offend. Every drop of human blood is more precious than a claim of acres of land or other valuable property. The accused, therefore, for the purpose of stopping the deceased from collecting mahua did not have a right to cause injuries to the deceased. Law does not protect such high handed action. There is nothing on record to indicate that the deceased was collecting mahua fruits unauthorizedly. Even no such doubt is created in our mind in this regard. Both the accused persons had gone to the place of occurrence fully prepared by taking weapons with them and started aggression on an unarmed person for no ostensible reason. The right of private defence is purely preventive and not punitive or retributive. It is also not a right to take revenge nor is it a right of reprisal. It does not permit retaliation and the right cannot be pleaded or claimed by persons who are themselves aggressor.

In any view of the matter the accused had no right to cause the death of the deceased under the garb of the so called right of private defence of property. Section 103 of the Penal Code makes a provision as to in what circumstances the right of private defence of property extends to causing of.death. It says that the right of private defence of property extends under the restrictions mentioned in Section 99 to the voluntary causing of death or of any other harm to the wrong doer, if the offence committing of which, or the attempting to commit which, occasions the exercise of the right, for an offence of robbery, housebreaking by night, mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property, and theft mischief or house trespass, under such circumstances as may reasonably cause apprehension that death or grievious hurt will be the consequence, if such right of private defence is not exercised.

In the circumstances appearing in the case, therefore, it will not be correct to hold that the accused persons had the right of private defence of property.

The argument of the learned Counsel for the accused Respondents that at best the accused could be held liable for exceeding the right of private defence of property also cannot be accepted because the case in hand cannot be brought within the four corners of Exception 2 of Section 300, I.P.C. Exception 2 reads as under:

Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property exceed the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm that is necessary for the purpose of such defence.

In order to bring the case within the aforesaid Exception it is necessary that the accused acts in "good faith". The expression ''good faith'' has been defined in Section 52 of the Code that nothing is said to be done or believed in good faith which is done or believed without due care and attention. The deceased was unarmed at the time of incident. He was aged about 60 years (as per the post mortem report) and according to the prosecution witnesses he was collecting mahua fruits peacefully with his son P.W. 1 much before the arrival of the accused at the scene of occurrence. The accused persons came there well prepared carrying lathi and lohangi with them and started giving blows after blows on the deceased and the manner in which the attack was mounted suggests that the same was made to satisfy a feeling of revenge. These circumstances appearing in the case thus, clearly rule out "good faith" on the part of the accused persons.

In this view of the matter Exception 2 to Section 300 of the Code cannot be pressed into service in favour of the accused persons. Nothing has been brought on record in the cross-examination of the witnesses that something intervened before initiation of assault.

For the above reasons, we find ourselves totally in disagreement with the view taken by the learned Sessions Judge that the accused persons were entitled to get the benefit of right of private defence of property and we hold that the prosecution has succeeded in proving its case beyond doubt that the accused persons assaulted the deceased with lathi and lohangi and caused him injuries which ultimately proved fatal.

The next question now arises for consideration is as to for what offence the accused Respondents can be held guilty?

Even as per the prosecution case Devi sustained injuries at the hands of the accused persons on 16.4.79 at about 6 in the morning, and on account of those injuries he expired on the same day at 4.20 p.m. His injuries were examined by Dr. H.N. Chandsauriya. P.W. 6 at 9.50 a.m. and as per the injury report the deceased sustained two lacerated wounds on head, one on the left side and other on the right side. The post mortem report Exhibit Ka-3 further indicates that on opening multiple fractures of perito-occipital bone with depression were found under injury No. 2 and the fractured bone had embedded in brain tissues. Brain was also found contused and lacerated under injury No 2 which was a lacerated wound 1" � 1/4" � bone deep on right side back of head 8 cm. away and backward from right ear tip. Injury No. 1 was a lacerated wound �" x �" bone deep on left side of head 4" above the left ear. No fracture was found on the left side of the head. Dr. H.N. Srivastava, P.W. 4 who conducted the autopsy stated likewise. Therefore, from the medical evidence it is quite possible to infer that only injury No. 2 was responsible for the death of the deceased. The difficulty then arises which of the two accused was the author of that particular injury which position has not been clarified in evidence led by the prosecution at the trial. It cannot be also said with certainty that the said injury was caused by lathi or lohangi as both were blunt weapons and the injury could be the result of the use of either of these weapons. In this situation, it is not possible to say with affirmness whether it was accused Ram Dayal or accused Jaggu who caused that particular fatal injury. Having regard to this factor and considering the facts and circumstances in which the assault was made Appellants could not be held guilty for the offence of murder punishable u/s 302 read with Section 34, I.P.C. and to be on a safer side it will be just and proper to hold them guilty u/s 304, Part II read with Section 34. I.P.C. as injuries were caused by both the accused in furtherance of their common intention of causing at least such injuries as they knew were likely to cause death.

Now coming on the question of sentence, we have to strike a just balance taking into account the aggravating as well as mitigating circumstances. In this case the occurrence took place on 16.4.79, i.e. more than 20 years ago. At that time the accused Jaggu was aged about 50 years while Ram Dayal was a young lad of 19 years of age. There is nothing on record to indicate that they had any bad antecedents or were having any criminal history. They were acquitted by the trial court on 27.3.1980 and appeals filed against their acquittal remained pending in this Court for about 19 years. During this long period not only the accused have advanced in their ages but their socio-economic conditions must have also undergone radical changes. Their families must have expanded resulting into more responsibilities on them. It may also be noted that the weapons used by them in the commission of offence were lathi and lohangi only and it has been deposed by P.W. 2, Gyasi specifically that when the deceased fell down on the ground he was not given any further beating. These are some of the factors which we have taken into consideration while selecting appropriate sentence to be imposed on the accused. We accordingly feel that the ends of justice will be sufficiently met if each of the accused is sentenced to 3 years R.I. and to pay a fine of Rs. 5,000 and in default of payment of fine each of them to undergo further R.I. for one year.

For the foregoing reasons, both the appeals are allowed and the judgment of the trial court dated 27.3.80 acquitting accused Ram Dayal and Jaggu is hereby set aside. Accused Ram Dayal and Jaggu are found guilty and convicted u/s 304. Part II read with Section 34 of the Indian Penal Code and each of them is sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5.000. In default of payment of fine each of them shall undergo further R.I. for one year. Out of the fine so deposited or realised from the accused persons half of the same shall be paid to the legal heirs of the deceased Devi.

Both the accused Ram Dayal and Jaggu are on bail and they shall be taken into custody forthwith and sent to jail to serve out their respective sentences as awarded above.