Allahabad High Court
Chitendra Singh And Others vs State Of U.P. on 1 July, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 7 of 1988
Chitendra Singh And Others
..Appellant(s)
Versus
State of U. P.
..Respondent
Counsel for Appellant(s)
:
Sudhanshu Kumar, Ajay Kumar Singh, Amber Khanna, Raj Kumar Khanna, Rajrshi Gupta, Sandal Khanna, Satish Sharma, Viresh Misra
Counsel for Respondent(s)
:
A.G.A., Amarjeet Choudhary, Rajesh Yadav
Court No. - 2
HON'BLE J.J. MUNIR, J.
HON’BLE SANJIV KUMAR, J.
(Delivered by Honble Sanjiv Kumar, J.)
1. This criminal appeal, under Section 374 (2) of Code of Criminal Procedure, 1973 (for brevity ‘Cr.P.C.’) has been filed by convicts Chitendra Singh, Tikam Singh and Munesh, against the judgment and order dated 23.12.1987, passed by Sri Ghan Shyam Dass, the then III Additional Sessions Judge, Moradabad, in Sessions Trial No. 599 of 1986, Crime No. 318 of 1986, Police Station Baniyather, District Moradabad.
2. By the impugned judgment and order, the appellant Chitendra Singh was convicted under Sections 302 and 323 IPC and sentenced to undergo imprisonment for life and six months rigorous imprisonment respectively. The appellant Tikam Singh was convicted under Section 323/34 IPC and sentenced to undergo rigorous imprisonment for six months. The appellant Munesh was convicted under Section 323 IPC and sentenced to undergo rigorous imprisonment for six months. It was directed that the sentence awarded to appellant Chitendra Singh shall run concurrently.
3. Be it noted, that this appeal was filed jointly by Chitendra Singh, Tikam Singh and Munesh. Appellant Tikam Singh has died during the pendency of this appeal and vide order dated 31.05.2018, this appeal stood abated against him. Now this appeal survives to be heard at the instance of Chitendra Singh and Munesh only.
4. Brief facts of the prosecution case are that Ram Pal Singh, son of Sardar Singh, resident of village Mudiyan, Police Station Bilari, District Moradabad, lodged an FIR at Police Station Baniyather, District Moradabad on 04.08.1986 at 10:30 a.m. by submitting a written application (Tahrir) dated 04.08.1986 (Ext. Ka-1), stating therein that he is resident of village Mudiyan and his maternal grandfathers village (nansaal) is in village Vijaypur. His maternal uncle Summeri Singh and Dori Singh, both sons of Lakshman Singh died issueless. During consolidation proceedings, their land fell in the share of first informants mother Jamana Devi and his aunt (mausi) Ganga Devi. It was further stated that in respect of the said land, litigation was pending against Tikam Singh before Consolidation Court. It was alleged that today, the first informant, his brother Manohar Singh, nephew Ramvir son of Manohar Singh, cousin brother Chandra Pal Singh and Durgpal Singh were ploughing their agriculture field. At about 09:00 a.m., Tikam Singh son of Rewat Singh, carrying a country-made pistol (tamancha), along with his sons Chitendra and Munesh, each carrying a ballam, arrived at the spot hurling abuses and said that today they would teach them a lesson for ploughing the field. Thereupon, Chitendra Singh struck ballam over Ramvirs chest with an intention to kill. Munesh also wielded a ballam, which struck on Durgpals hand. When his brother Manohar rushed for rescue, Chitendra struck him from reverse side of the ballam. Thereafter, the appellants fled from the spot, hurling abuses.
5. Upon this information, FIR under Case Crime No. 318 of 1986, Sections 307, 324, 323 IPC was registered. The investigation of the case was entrusted to S.I. Mahipal Singh (P.W. 8). After registration of FIR, the injured persons were sent for medical treatment. The injured Ramvir Singh succumbed to his injuries. After his death, his inquest report was prepared. Thereafter, his cadaver was sent for autopsy. During the course of investigation, the Investigating Officer recorded the statements of first informant and other witnesses, inspected the place of occurrence and prepared its site-plan (Ext. Ka-16).
6. Upon Ramvir Singhs death, the case was converted to one under Section 302 IPC and, after conclusion of investigation, charge-sheet was filed against the appellants under Sections 302, 323, 324 IPC before Chief Judicial Magistrate, Moradabad. The concerned Court took cognizance of the offence and summoned the appellants. They appeared and were furnished copies of prosecution papers under Section 207 Cr.P.C. and thereafter, the case was committed to the Court of Sessions for trial. The appellants appeared before the Court of Sessions, where charge under Section 302/34, 323/34, 323 IPC was framed against appellant Munesh; charge under Section 302/34, 323/34 IPC was framed against appellant Tikam and charge under Section 302, 323 and 323/34 IPC was framed against appellant Chitendra. The appellants pleaded not guilty and claimed to be tried.
7. The prosecution has examined eight witnesses to prove its case namely, Rampal Singh (P.W.1), Durgpal (P.W.2), Constable Raghuvar Dayal (P.W.3), Head Constable Harindra Singh (P.W.4), Sub-Inspector Santosh Kumar (P.W.5), Dr. D.S. Gangwar (P.W.6), Dr. Vijay Narang (P.W.7) and Sub-Inspector Mahipal Singh (P.W.8), to prove its case.
8. P.W.1 Rampal Singh is the first informant of the case. He has deposed that Lakshman Singh was his maternal grandfather (nana), having two sons namely, Summeri Singh and Dori Singh as well as two daughters namely, Ganga Dei and Jamana Dei. Summeri Singh and Dori Singh died issueless and after their death, their land was taken care of by Ganga Deis son Chandra Pal Singh as well as Kalyan Singh, Brijpal Singh and Mahesh Pal Singh and also by Jamana Deis son Manohar Singh and the first informant. It was further said that with regard to the above land, proceedings under Section 145 Cr.P.C. were initiated. The above case was decided in favour of Kalyan Singh. The Consolidation Court also decided the case in favour of Ganga Dei and Jamana Dei. He further testified that Tikam Singh and his sons are not his relatives. In a part of land, sorghum (Jowar), sugarcane and pearl millet (Bajra) was sown. In some portion sweet potato crop was sown, whereas some portion was lying fallow. He further testified that at the time of incident, at about 09:00 a.m., he himself along with Chandra Pal Singh, Manohar Singh, Ramvir Singh and Durgpal was ploughing the field. When they had ploughed the land for about eight to nine rounds, the appellants Tikam Singh, Chitendra and Munesh arrived. Munesh and Chitendra were having ballam and Tikam Singh was having a country-made pistol (Tamancha). They hurled abuses and said that they would teach a lesson for ploughing the field. Thereafter, Chitendra Singh, with the intention to kill, struck ballam over Ramvir Singhs chest. Munesh struck ballam over Durgpals hand. When his brother, Manohar rushed for rescue, Chitendra struck him with reverse side of the ballam. Thereafter, they fled from the spot hurling abuses. At the time of incident, Shripal also arrived there. He got the written application scribed by one Gajju Singh and after putting his signature, lodged the FIR. The witness has proved Tahrir as Ext. Ka-1 and said that the injured persons were taken to Chandausi Hospital for treatment. It was further stated that Ramvirs condition was critical, who was unconscious and died at 12:00 noon, the same day.
9. In cross-examination, P.W.1 said that his maternal grand-father (nana) Lakshman Singh had two brothers. Jamana Deis mother was Parvati and father was Sher Singh, who resided in Bhawanipura. Sher Singh was not his real maternal grand-father. Lakshman Singh was his mothers father. He further said that Ram Singh filed a suit before Civil Judge, which was decided ex-parte. The above case was later restored. Regarding the same land, a case was decided by Tehsildar, Bilari, in favour of Gaon Sabha. Against the order of Tehsildar, Tikam Singh filed an appeal before concerned Sub-Divisional Magistrate, where the order was confirmed. In the S.D.M. Court, Tikam Singh won the case against which, Jamana Dei and Ganga Dei filed appeal before Commissioner, Bareilly. The appeal was also dismissed and the order of S.D.M. was upheld. Jamana Dei has filed an appeal before the High Court. There was one case decided by the Consolidation Officer against Tikam Singh, who had filed appeal before the S.O.C., which is pending.
10. P.W.1 in his cross-examination has further said that, several times, Jamna Dei paid land revenue of the disputed land. He lives in village Muthiya Bhikam. He has a house in village Vijaypur also. On the date of incident, he had come from village Khata, which was three kilometers away from Vijaypur. Muthiya Bhikam is about 6-7 kilometers away from village Vijaypur. He further testified that they were empty handed at the time of incident. Durgpal and Manohar wielded Pauna (an stick or danda with an iron nail at its one end, used to drive bullocks), in their self defence. He had seen blood flowing from appellant Tikam Singhs wounds. Four or five blows of pauna were struck to him. Pauna were wielded when Durgpal sustained injuries. Till then Manohar had not sustained any injury. After coming for rescue, Manohar wielded pauna. Ballam was struck at Durgpals hand. Ballams edge was pointed and round in shape. Manohar sustained injuries over his knee. Chitendra had struck ballam from reverse side by holding its spearhead (lohe ka phal) and wielded it like a lathi on Manohar. The witness has denied the suggestion that they had come to take possession over Tikam Singhs land and when Tikam Singh and others objected to it, then they started beating Tikam Singh with lathi and danda with an intention to kill and the appellants caused injuries in self defence by snatching their weapons.
11. P.W.2 Durgpal Singh is an injured witness. He has deposed that at the time of incident they were ploughing the field, then the appellants came there. Tikam Singh was having a country-made pistol (Tamancha) whereas Chitendra and Munesh were armed with ballam. They said that they would teach them a lesson for ploughing the field. Chitendra Singh struck ballam on Ramvirs chest whereas Munesh struck ballam over his hand. When his uncle (Tau) Manohar ran for rescue, then Chitendra Singh struck him with a ballam from the reverse side using it as a lathi. Ramvir became unconscious and thereafter, FIR was lodged.
12. In cross-examination, the witness showed his ignorance regarding the pedigree put to him by defence. He further deposed that it had been decided that they would proceed to the barren field and sow jowar thereon. He and Ramvir were having pauna in their hands, which was of the size of about one yard (Gaj). The pauna were like danda having no iron tip or metallic attachment at its end. These pauna were used to drive bullock and that no leather strap (tamsa) was attached to it. He had not shown pauna to the Investigating Officer. He further said that a little blood had oozed when he was struck with ballam. He and Manohar Singh struck Tikam Singh with the pauna. About 6 or 7 pauna blows were struck. A little blood oozed from Tikam Singhs injuries. The pauna were hit after the fight was over, when Chitendra Singh had struck Ramvir with ballam. Tikam Singhs right hand is amputated since before the incident. After the incident, Tikam Singh did not object them from ploughing the field. Tikam Singh fell to the ground after sustaining injuries. The witness has denied the suggestion that disputed land belongs to appellant Tikam Singh and that they forcibly entered upon the land, armed with weapons, to take illegal possession and that they had assaulted Tikam Singh with an intention to kill and then the appellants snatched their weapons and wielded them in self-defence, causing them injuries.
13. P.W.3 Constable Raghuvar Dayal is a formal witness, who took the cadaver of the deceased Ramvir Singh for post-mortem examination after his inquest was held.
14. P.W.4 Head Constable Harindra Singh is again a formal witness, who has scribed the chik FIR (Ext. Ka-2) and made it entry in G.D. No. 17 at 10:30 a.m., the copy of which he proved as Ext. Ka-3. He also testified that the same day, i.e., 04.08.1986, by G.D. No. 18 at 11:55 a.m., the case was converted from Sections 307, 324, 323 IPC to 302, 324, 323 IPC. He has proved the copy of G.D. as Ext. Ka-4 and further said that a special report was sent by G.D. No. 20 at 12:05 p.m., through Constable Dinanath, a copy of which he proved as Ext. Ka-5. In cross-examination, P.W.4 said that the same day appellant Tikam Sigh had lodged an FIR against Ramvir Singh, Rampal Singh, Durgpal Singh and Chandrapal Singh under Section 323, 504, 506 IPC, the copy of which he proved as Ext. Kha-1 and its entry was made on G.D. No.23, the copy of which he proved as Ext. Kha-2. P.W.4 further said that thereafter Tikam Singh was sent for medical treatment.
15. P.W.5 S.I. Santosh Kumar is also a formal witness, who held the inquest of the deceased and prepared his inquest report at District Hospital, Chandausi on 04.08.1986. He has proved copy of G.D. entry as Ext. Ka-6 and the inquest report, alongwith related papers, as Exts. Ka-7 to Ka-12. In cross-examination, P.W.5 said that till the dead body was sealed, the chik FIR was not received, as such, he had not written the crime number over the inquest report and other papers.
16. P.W.6 Dr. D.S. Gangwar, has deposed that he was posted as Medical Officer in District Hospital, Moradabad. He held post-mortem examination of deceased Ramvir Singh on 05.08.1986 at District Hospital, Moradabad, while being posed there as Medical Officer. He testified that the dead body was brought by Constables Ved Prakash and Raghuvar Dayal. The deceased was aged about 27 years and had died about one day ago. The rigour mortis had passed through upper limb, however, it was present over the lower limb. The doctor has noted following ante-mortem injuries over the dead body of the deceased:
(i) Punctured wound 1cm x 1/2 cm x chest cavity deep in the right side of chest, 5 cm away from nipple, in 3o clock position, direction anterior to posterior.
(ii) Abrasion 3 cm x 2 cm upper part of right side of stomach.
17. In internal examination, he has said that he found the right lung and membrane punctured and there was about one liter blood present. About two ounce liquid material was present in the stomach. In the opinion of the doctor, the cause of death was shock, hemorrhage and excessive bleeding. The witness has proved the post-mortem report as Ext. Ka-13 and said that punctured wound could be possible from piercing of a ballam. In cross-examination, P.W.6 said that if the size of pauna is similar to that of injury no.1, then the above injury could be caused by pauna also. The ballams tip is usually broad having a pointed edge (blade). The above injury could not be caused if the width of blade of ballam is 4 cm and if it has 1/2 c.m. width, then injury would be 1/2 c.m. wide. Generally ballam is 4 c.m. wide. He further said that both chambers of the heart were empty.
18. P.W.7 Dr. Vijay Narang is the Medical Officer, who was then posted at Civil Hospital, Chandausi. He medically examined Durgpal and Manohar Singh. He found following injuries over the person of Durgpal:
(I) Lacerated wound 1 cm x cm bone deep on right forearm 13 cm above the right wrist.
(ii) Swelling around the wound.
(iii) Abrasion cm x cm over little finger of the right hand.
19. P.W.7 opined that injury nos. 1 and 2 could be caused by any blunt object. Injury no.3 could be caused by friction. All the injuries were simple in nature and were kept under observation. The injuries were fresh. He has proved injury report of Durgpal as Ext. Ka-14. He further said that the same day, he examined Manohar and found following injuries over his person:
(i) Swelling 4 cm x 2 cm over knee of right leg.
(ii) Contusion 3 cm x 1 cm over left buttock.
20. He has said that both the injuries may have been caused by a blunt object. The injuries were fresh and simple in nature. He has proved the injury report of Manohar as Ext. Ka-15 and said that the above injuries could have been caused by a lathi. He further said that if ballam is used from reverse side like a lathi, then both the injuries could be caused. The injuries could have been caused on 04.08.1986 at 09:00 a.m. In cross-examination, P.W.7 said that there was no injury of any sharp edged weapon like ballam over Durgpals body. If ballams tip (blade) is held by hand and it is wielded like a lathi, then the hand could be injured.
21. P.W.8 S.I. Mahipal Singh is the Investigating Officer of the case. He has said that he carried out the investigation. He recorded statement of the first informant and other witnesses, inspected the place of occurrence and prepared its site-plan. He reached at the Civil Hospital, Chandausi at 04:00 p.m. and recorded statement of injured persons. It came to his knowledge that Ramvir Singh had died and thereafter, his inquest report was prepared. Thereafter, the dead body was sent for post-mortem examination and the case was converted under Section 302 IPC. He also recorded the statement of accused Tikam Singh, while he had come to the Police Station to lodge an FIR and was kept in custody. Thereafter, the investigation was carried out by the S.H.O. himself, who recorded statement of the appellants Chitendra and Munesh in jail and after completion of investigation, filed charge-sheet, which he proved as Ext. Ka-17.
22. In cross-examination, P.W.8 has said that he had seen all the injured witnesses at the Police Station at 10:30 a.m. He found two plough lying at the place of occurrence, but did not found any bullock, pauna, danda or seeds. He further deposed that he did not find any blood splattered at the place of occurrence.
23. After recording the statement of prosecution witnesses, the Trial Court recorded the statement of the accused under Section 313 Cr.P.C. in which they denied the prosecution case, particularly the pedigree described by the prosecution. Tikam Singh in his statement said that Lakshman had two sons and a daughter Raj Kaur. Ganga Dei and Jamana Dei were daughters of Raj Kaur, who were married in village Jhaunda. Dori Singh and Summeri Singh died issueless. The disputed land was in his possession. He won the proceedings under Section 145 Cr.P.C. before the Civil Judge. An appeal and a revision was also pending before D.D.C. in respect of the said land. The informants party had reached at the place of occurrence to take its possession. He further said that his grandfather Kulwant Singh had three sons namely Tori, Lakshman and Revi Singh. Revi Singh was his father. Tori Singh had died issueless. Lakhsmans sons were Summeri and Dori and Raj Kaur was his daughter. Ganga Dei and Jamana Dei were Raj Kaurs daughters. Ganga Dei had two sons namely Rajpal and Manohar. The deceased Ramvir Singh was Manohars son. Ganga Deis son was Chandrapal and Chandrapals son was Durgpal. All of them had arrived at the disputed field to take its illegal possession. He further deposed that to save his life, his sons snatched danda and pauna from the deceased and wielded them by which the deceased sustained injuries. He had lodged an FIR, whereupon Police had got him medically examined.
24. The appellant Chitendra Singh and Munesh, in their statement recorded under Section 313 Cr.P.C., said that they snatched danda and pauna from the possession of the informants party and wielded them in self defence to save their fathers life.
25. The defence in its support has examined Dr. M.P. Gupta, as D.W.1, who was then posted as Medical Superintendent in Government Hospital, Moradabad. He said that on 04.08.1986, he medically examined Tikam Singh at about 08:10 p.m. and found following injuries:
(i) Lacerated wound 3 cm x cm x bone deep on top of left parital bone over head, near mid line.
(ii) Lacerated wound 3 cm x 3/4 cm x bone deep on parital region of head.
(iii) Contusion 12 cm x 11 cm on right shoulder over upper and back of shoulder, with a part having swelling, advised x-ray right.
(iv) Abrasion 1.5 cm x 1.6 cm over right scapula soft stab.
(v) Contusion 7 cm x 2 cm x rigor scapula lower rest.
(vi) Contusion 5 cm x 2 cm below injury no.5.
(vii) Contusion 10 cm x 2 cm on left mid back with abrasion cm x cm.
(viii) Contusion 10 cm x 2 cm lateral on left lower scapula region.
(ix) Contusion 5 cm x 2 cm with abrasion 1 cm x 1-1/2 cm.
(x) Contusion 11 cm x 2 cm right with back red.
(xi) Contusion 4 cm x 2 cm left lower back.
(xii) Abrasion 1-1/2 cm x 1cm on left upper hip.
(xiii) Contusion 4 cm x 2 cm left lateral arm.
(xiv) Abrasion with contusion 12 cm x 4 cm on left lateral mid fore arm.
(xv) Contusion 8 cm x 6 cm left wrist upper of wrist joint red in colour.
(xvi) Lacerated wound 5-1/2 cm x cm x muscles deep on left palm between thumb and index.
(xvii) Contusion 2 cm x 2 cm on back of left mid in deep.
(xviii and xix) Lacerated wound 3-1/2 x 1/2cm x bone deep and 1-1/2 cm x cm x bone deep near injury no. 18 on right leg.
(xx) Contusion 4 cm x 2 cm left lateral mid leg-rest.
26. D.W.1 said that injury nos. 1, 2, 3, 14, 15, 16, 17 were kept under observation and advised x-ray. Rest of the injuries were simple in nature and were about half a day old, which could be caused by any blunt object. The injuries could have been caused on 04.08.1986 at about 09:00 a.m. The witness has proved carbon copy of the injury report as Ext. Kha-3, after bringing injury register before the Court. He further said that the injuries could not be self inflicted and could have been caused by lathi or danda.
27. The Trial Court after hearing arguments of both the parties and upon a perusal of evidence on record, came to the conclusion that the prosecution has been able to prove its case beyond reasonable doubt. It was held that the defence had failed to prove that the appellants Chitendra and Munesh inflicted blows, while exercising their right of private defence. The injuries caused to appellant Tikam Singh are well explained and accordingly, the Trial Court held that the appellants were not sharing common intention to commit murder of deceased Ramvir Singh and consequently, convicted and sentenced them to the terms as indicated above.
28. Learned counsel for the appellants submits that civil litigation was pending between the parties with regard to the disputed land and S.D.M., Bilari, in proceedings under Section 229-B of U.P. Zamindari Abolition & Land Reforms Act, decided the suit in favour of the appellants. The appeal of Ganga Dei and Jamana Dei was dismissed by Commissioner, Bareilly Division, Bareilly, vide order dated 12.05.1978. Proceedings under Section 145 Cr.P.C. was initiated in which possession of complainants side was accepted against which, appellant Tikam Singh and his brother had filed a Declaratory Suit, which was decreed in their favour. The consolidation proceedings were also decided in appellant Tikams favour and it was held that Ganga Dei and Jamana Dei were not the real sisters of Summeri Singh. The D.D.C., Moradabad decided the ownership and possession in favour of Tikam Singh. Tikam Singhs pedigree has been admitted by the Trial Court. Rampal claimed title over the disputed land alleging that his mother Jamana Dei and Ganga Dei are the sisters of Summeri Singh, however, the Civil Court decided that both Ganga Dei and Jamana Dei were not the sister of Summeri Singh, therefore, the disputed land belonged to the appellant Tikam Singh and the informants side came their to forcibly take possession. It is also submitted that the appellant Tikam Singh was 70% handicapped and his right hand was amputated since prior to the incident.
29. It is next submitted by learned counsel for the appellants that there was no intention on the part of the appellants to commit murder, as no repeated blows were inflicted upon the deceased. It is also submitted that the sole object of the appellants was to save the life of co-appellant Tikam Singh, who was assaulted by the informants side. It is also contended that P.W.1, Rampal, and P.W.2, Durgpal have admitted in their testimonies that they assaulted Tikam Singh, who sustained as many as 20 injuries over his body and to save their fathers life, appellant nos. 1 and 3 snatched danda and pauna from informants party and used them in the exercise of their right of private defence to save life of their father, Tikam Singh.
30. Learned counsel for the appellants next submits that in view of the full Bench decision of this Court in Rishikesh Singh Vs. State of U.P. (1970) Cr.L.J., Page 132, the duty lies upon the prosecution to prove its case beyond reasonable doubt. It is also submitted that questions under Section 313 Cr.P.C. has not been framed properly. The object of examination under Section 313 Cr.P.C. is to give accused an opportunity to explain the case put up against him and the attention of the accused should be drawn to the specific points, on which the prosecution claims that the case is made out against the accused.
31. It is next submitted on behalf of the appellants that the prosecution has not come with hands as, neither at the time of lodging the FIR nor in the statement recorded under Section 161 Cr.P.C., the witnesses have explained the injuries inflicted on Tikam Singh. By not explaining the injuries upon appellant Tikam Singh, an adverse inference should be drawn that the prosecution has suppressed the origin and genesis of the offence and has, thus, not explained the true version of the incident and the witnesses, who have denied the presence of the injuries on Tikam Singh are lying on most material contents, therefore, their evidence is not reliable. In case, there is a defence version, which explains the version of the accused, it assumes greater importance. As per law, the accused are not required to prove existence of right to private defence beyond reasonable doubt and it is enough for them to show the preponderance of probabilities in their favour. In the present case the appellant nos.1 and 3 have exercised their right of private defence to protect appellant no.2 Tikam Singh, their father, from the assault by informants side.
32. It is also submitted that the informants side was the aggressor and injuries were caused to deceased while exercising the right of private defence. In support of this contention, learned counsel for the appellants has relied upon a decision of the Supreme Court in Parasuram Vs. State of M.P., (2023) INSC 973, wherein it was found that the witnesses were interested witnesses and the injuries to the accused were not explained. Thus, it created doubt whether the prosecution has brought on record the real genesis of the incident or not.
33. Learned counsel for the appellants has next relied upon a decision of the Supreme Court in Darshan Singh v State of Punjab (2010) 2 SCC 333, in which, with regard to the right of private defence, it was held that where there is serious apprehension that the aggressor might cause death or grievous hurt, in that event, the right of private defence of the defender could even extend to causing of death.
34. Learned counsel for the appellants has also relied upon a decision of the Supreme Court in Rakesh Dutt Sharma Vs. State of Uttarakhand, passed in Criminal Appeal No. 1461 of 2012, decided on 28.08.2025, where in paragraph no.7, it has been held:
7. Considering the principle governing the right of private defence, this Court, in Darshan Singh (supra) was pleased to hold as under:
54. In Vidhya Singh v. State of Madhya Pradesh, (1971) 3 SCC 244, the court observed that:
18. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this court, to adopt tests by detached objectivity which would be so natural in a court room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances.”
55. In Jai Dev v State of Punjab, AIR 1963 Supreme Court 612 the court held as under:
13.as soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence.”
56. In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered.
57. In Buta Singh v. The State of Punjab, (1991)2 SCC 612, the court noted that:
10.a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private-defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self- preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived. The court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.”
58. The following principles emerge on scrutiny of the judgments:
(i) Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise the right of private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the right of self defence into operation.
In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.
35. Learned counsel for the appellants has relied upon a decision of Division Bench of this Court in Ram Komal and others Vs. State of U.P. (1960) 27 ACC 338, which is with regard to the exercise of right of private defence. Learned counsel for the appellant has next relied upon a decision of Honble Supreme Court in Shajahan and others. Vs. State of Kerala and others, (2007) 12 SCC 96, where the Supreme Court held that non-explanation of injuries by the prosecution will not affect prosecution case, where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so probable, independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of the prosecution to explain the injuries. It is also held that non-explanation of the injuries sustained by the accused may assume greater importance, where the defence gives a version which competes in probability with that of the prosecution and in determining the question of fact with regard to the right of private defence, the Court must consider all the surrounding circumstances. No test in the abstract for determining such a question can be laid down and the burden of proof of self-defence is on the accused, which stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record. In order to find, whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered.
36. Learned counsel for the appellants has next relied upon a decision of the Supreme Court in Krishnan Vs. State of Tamil Nadu, 2006 (11) SCC 304, wherein the Supreme Court has held that the Court must be objective and examine the matter on the facts and circumstances of each case to find out whether the situation was such as was likely to reasonably cause apprehension in the mind of the accused that death or grievous hurt would be caused to him, if he did not act in self defence.
37. Per contra, learned counsel for the first informant as well as learned AGA have vehemently opposed and argued that the prosecution case is proved beyond reasonable doubt. The date, time and place of the incident is admitted by the defence. The appellants have pleaded the right of private defence, which they have failed to prove. It was the appellants, who assaulted the informants party by ballam and then the informants side struck blows with pauna to appellant Tikam Singh causing him injuries. It is further submitted that the injuries sustained by appellant Tikam Singh are well explained by the witnesses during their depositions before the Court. It is also contended that mere absence of any reference to injuries of Tikam Singh in the FIR or in the statement of the witnesses recorded under Section 161 Cr.P.C., does not adversely affect the prosecution case or render the prosecution case unreliable.
38. Learned counsel for the first informant next submits that the right to private defence is available to the person, who is in imminent danger of death or grievous hurt, however, in the present case, according to the defence version, it was appellant Tikam Singh, who was confronted with such danger, but he did not exercise his right of private defence. It is also contended that appellants, Chitendra Singh and Munesh were not attacked, so they had no right to exercise right of private defence. It is also submitted that the deceased sustained injury caused by ballam, being a punctured or stabbed wound, which can be caused only by long piercing or stabbing instrument like arrow, pickaxe, dagger and will be inflicted by passing through tissues and by entering into the cavity region. The length of pauna is not sufficient to cause a punctured or stabbed wound. It is also contended that it were the appellants, who were the aggressor, as they objected the informants side from ploughing the field and then committed assault, therefore, they are not entitled to the right of private defence. Therefore, the appellants have been rightly convicted by the Trial Court and this appeal has no force and it is liable to be dismissed.
39. In support of his contention, the learned counsel for the informant has relied upon the following cases:
(i) Raj Singh Vs. State of Haryana, AIR SC (Supp) 1171, wherein the Supreme Court has held that the right of private defence is available or not, is a mixed question of law and fact. In the said case, the incident took place in the house of the complainant and not at the house of accused and the accused were armed with weapons. Therefore, they were not found entitled to claim the benefit of Exception 2 to Section 300 of the Indian Penal Code.
(ii) In Jagat Singh Vs. Sate of Panjab AIR 1994 (SCW) 2302, the Supreme Court found that no questions were put to any of the prosecution witnesses regarding injuries caused to accused, therefore, it was held that there arose no occasion for the prosecution witnesses to explain the injuries to any person of the accused and thus the non-explanation of injuries to the accused was not found fatal to the prosecution case.
(iii) In Rizan and another Vs. State of Chatishgarh, AIR 2003 SC 976, it has been held that relationship is not a factor to affect the credibility of the witness. It was also held that burden of establishing plea of private defence is on the accused and it stands discharged by showing preponderance in favour of its plea. It was also held that non-explanation of injuries sustained by the accused does not affect the prosecution case in some cases. Paragraph nos.12, 14 and 16 are relevant in this regard, which reads:
12. Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of “falsus in uno falsus in omnibus” (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co- accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material would not ruin it from the beginning to end. The maxim “falsus in uno falsus in ominbus” has no application in India and the witnesses cannot be branded as liar. The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such case testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called ‘a mandatory rule of evidence’. See Nisar Alli v. The State of Uttar Pradesh, AIR (1957) SC 366. Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. See Gurucharan Singh and Am. v. State of Punjab, AIR (1956) SC 460. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. See Sohrab s/o Belt Navata and Anr. v. The State of Madhya Pradesh, [1972] 3 SCC 751 and Ugar Ahir and Ors. v. The State of Bihar, AIR (1965) SC 277. An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. See Zwingle Ariel v. State of Madhya Pradesh, AIR (1954) SC 15 and Balaka Singh and Ors. v. The State of Punjab AIR (1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr., AIR (1981) SC 1390, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar, etc. JT (2002) 4 SC 186 Gangadhar Behera and Ors. v. State of Orissa, (2002) 7 Supreme 276. Accusations have been clearly established against accused-appellants in the case at hand. The Courts below have categorically indicated the distinguishing features in evidence so far as acquitted and convicted accused are concerned.
14. The number of injuries is not always a safe criterion for determining who the aggressor was, it cannot be stated as a universal rule that whenever the injuries are on the body of the accused person, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent so independent and disinterested, so probable, consistent and credit-worthy, that if far outweighs the effect of the omission on the part of the prosecution to explain the injuries. See Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263. In this case, as the Courts below found there was not even a single injury on the accused persons, while PW2 sustained large number of injuries and was hospitalized for more than a month. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right or private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down limits of the right of private defence. Section 96 and 98 give a right of private defence against certain offences and acts. The right given under Section 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of right of private defence.
16. In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstance whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Thus, running to house, fetching a tabli and assaulting the deceased are by no means a matter of course. These acts bear stamp of a design to kill and take the case out of the purview of private defence. Similar view was expressed by this Court in Biran Singh v. State of Bihar, AIR (1975) SC 87 and recently in Sekar @ Raja Bekharan v. State represented by Inspector of Police Tamil Nadu, (2002) 7 Supreme 124.
40. Heard Mr. Raj Kumar Khanna, learned Senior Advocate, assisted by Mr. Ajay Kumar Singh and Mr. Sudhanshu Kumar, learned counsel for the appellants, Mr. Sangam Singh, Advocate, holding brief of Mr. Amarjeet Choudhary, learned counsel for the informant and Mr. Ghan Shyam Kumar, learned AGA-I for the State.
41. In view of submissions of both the parties and the evidence on record, let us see whether the prosecution has been able to prove its case beyond reasonable doubt, because it is settled law that in a criminal case, the burden of proof lies upon the prosecution to prove its case beyond reasonable doubt. In the present case, according to the prosecution, the incident occurred on 04.08.1986 at 9:00 a.m. in the field under village Vijaypur, Police Station Baniyather, District Moradabad. The FIR was lodged by informant Rampal the same day, after one and half an hour at 10:30 a.m. According to the prosecution, the above incident occurred when the first informants party reached at the disputed agricultural field to plough it. The appellants arrived their armed with country-made pistol and ballam and assaulted them, as a result, Durgpal, Manohar and Ramvir sustained injuries. Ramvir succumbed to his injuries the same day. On the other hand the defence version is that the disputed land belonged to appellant no. 2, Tikam Singh, and the informants party came there to take illegal possession and, upon objection, they assaulted Tikam Singh, causing him 20 injuries and to save their father, appellant nos. 1 and 3, Chitendra Singh and Munesh, respectively, snatched pauna and danda from the hands of first informants party and wielded them in exercise of their right of private defence, causing injuries to informants side.
42. The defence has examined D.W.1. Dr. M.P. Gupta, who has proved copy of injury report of appellant Tikam Singh, which shows that Tikam Singh sustained twenty injuries over various parts of his body. The prosecution has examined P.W.4 Head Constable Harindra Singh, the scribe of chik FIR and G.Ds. of the present case and he has deposed that appellant Tikam Singh also lodged an FIR against the first informants party the same day and from the Police Station, he was sent for medical treatment. P.W.8 S.I. Mahipal Singh, the I.O., has also said that he recorded statement of Tikam Singh at the police station and he was kept in custody at the Police Station.
43. Prosecution witnesses P.W.1 Rampal Singh and P.W.2 Durgpal have said that appellant Tikam Singh was assaulted by them with pauna giving him multiple blows. The appellants in their statement recorded under Section 313 Cr..C. have taken the plea of right of private defence by submitting that, in order to save the life of appellant no.2 Tikam Singh, appellants no, 1 Chitendra Singh and appellant no.3 Munesh snatched danda and pauna, from the side of the first informant and wielded them causing injuries to informants side.
44. In view of the above, it is clear that the date, time and place of the incident is not in dispute. It is also not in dispute that from the first informants side Durgpal, Manohar and Ramvir sustained injuries and from the defence side appellant Tikam sustained injuries. Now it is to be examined, which party was aggressor and whether the appellants exercised their right of private defence.
45. In this regard, it is admitted fact that appellant Tikam Singh had his right hand amputated since before the incident. As per prosecution, Tikam Singh was armed with a country-made pistol, however, there is no evidence that he used it at the time of incident or did any overt act. The prosecution has filed certain documentary evidence to show that litigation was pending between the parties with regard to the disputed land. The defence has also said that there was litigation between the parties over the disputed land. The defence has given a pedigree to show that informants side had no right or claim over the disputed property, but in this regard the defence has not produced any evidence to prove the pedigree. P.W.1 has denied such pedigree up to certain extent and P.W.2 Durgpal has shown ignorance to the pedigree put to him.
46. With regard to the litigation between the parties, statement of P.W.1 is relevant, who in his cross-examination has said that regarding the disputed land, a case before Tehsildar, Bilari was contested in which, the Tehsildar decided that the disputed land belonged to the Gaon Sabha. Tikam Singh filed an appeal against the same, which was allowed in his favour. Thereafter, Jamana Dei and Ganga Dei filed an appeal before the Commissioner, Bareilly, which was dismissed and the decision of the S.D.M, Court was upheld. Thereafter, the appeal is pending before the High Court filed by Jamana Dei. He has also said that a case before the Consolidation Court was also pending. With regard to the possession over the disputed land, P.W.1 or P.W.2 have not stated, in their examination-in-chief, that they were cultivating the land since before the incident. It is stated that on the date of incident, they had reached there to plough the vacant portion of the disputed land, then the incident took place. So it is not clear, who was in the actual possession of the land at the time of incident.
47. According to the prosecution, the appellants reached there, armed with country-made pistol and ballam and thereafter, Chitendra and Munesh used ballam causing injuries to Ramvir, Durgpal and Manohar. It is stated that Chitendra struck ballam on Ramvirs chest and Durgpal sustained injuries from ballam over his hand. P.W.1 has said that they used pauna and struck Tikam with it, when Durgpal sustained injuries. It is stated that Manohar rushed to rescue them and wielded pauna, then Chitendra used ballam from reverse side, holding blade (phal), and used it as a lathi, and caused injuries over Manohars knee. P.W.2 Durgpal has also stated on the same lines, barring some minor contradictions. So, as per prosecution, the injuries caused by the appellants were by using ballam. During investigation, neither the ballam was found at the place of occurrence nor the Investigating Officer has recovered any ballam during investigation. Pauna was also not recovered, which was allegedly used by the informants side causing assault upon Tikam Singh and, according to the appellants, they snatched pauna from the informants side and used it in exercise of right of private defence when Tikam Singh was inflicted blows. So, no weapon of assault, either ballam or pauna, was recovered by the I.O. or produced before the Court which could show the nature, size or specifications etc., of the weapon to corroborate the version of either side with regard to the injuries, inflicted to both the sides. P.W.1 and P.W.2 are relatives and are interested witness. According to P.W.1 an independent witness Sripal was also present there, but the prosecution has not examined him which raises adverse inference against the prosecution that he would not have supported the prosecution case.
48. A bare perusal of the injuries mentioned in the post-mortem report of Ramvir and in injury reports of Durgpal and Manohar, shows that they are of different sizes and nature from each other, raising serious doubt that they were caused by the same weapon i.e. ballam. Ramvir sustained one punctured wound over chest, size 1 cm x 1/2 cm. Durgpal sustained a lacerated wound with swelling over right forearm, size 1 cm x 1/2 cm, and abrasion 1/2 cm x 1/2 cm, over little finger of right hand. Manohar Singh sustained two contusions, size 4 cm x 3 cm and 3 cm x 1 cm, over right leg and left buttock. The injuries to Durgpal and Manohar are simple in nature and not caused on any vital part of body. On the other hand the injury to deceased Ramvir is of different nature than those of injured Durgpal and Manohar. Even P.W.7 Dr. Vijay Narang has said that the injuries to Durgpal and Manohar were caused by any hard and blunt object or friction. Whereas the injury sustained by deceased Ramvir was a punctured wound. It is hard to believe that injuries to all of them would be caused by ballam. It is also not believable that injury to Manohar would be caused by the appellant by holding blade (phal) of the ballam and wielding it from the reverse side as a lathi, because by holding ballam with the blade and wielding it as lathi from reverse side, would most probably, cause injuries to the assailants hand himself. So it rules out the case that ballam was used as a lathi by holding it from blade and using it from reverse side. So the nature of injuries to Durgpal and Manohar rules out that ballam was used in causing them injuries. Beside this, there is no standard size and shape of blade of a ballam, so it may be of different shape and size. It has come in the statement of P.W.6, Dr. D.S. Gangwar, and is also commonly known, that the blade of a ballam is narrow at its edge, which gradually widens towards other end. The size of fatal injury over the body of deceased Ramvir Singh is of the size of 1 cm x 1/2 cm x cavity deep and in internal examination, the right lung and membrane were found punctured. Therefore, looking into the general size of a ballam, and the nature of injury, it is hard to believe that the above injury would be caused by the use of a ballam, and if the ballam would have been used, the size of injury would have been much wider than that was found in the post-mortem examination. In absence of concrete evidence with regard to the size and shape of blade of balllam, the Court cannot act on conjectures and surmises to rely upon the prosecution case. In view of the above, the injuries to Durgpal and Manohar are not of such a kind, which could be caused by ballam and they may be caused by danda or pauna also. On the other hand, the above punctured wound to the deceased may be possible from use of pauna as the iron nail, tied/fixed at the end of pauna, is generally, thinner than the edge of ballam.
49. Therefore, the prosecution case is doubtful whether the appellants were, in fact, armed with ballam and country-made pistol at the time of occurrence and whether they wielded ballam causing injuries to the informants party. Therefore, it appears that P.W.1 and P.W.2 have suppressed the genesis and origin of the incident by concealing material facts before the Court and there are major contradictions in ocular testimony and medical evidence also, so their testimony is not reliable.
50. On the other hand, it is the defence case that the members of the informants party were armed with pauna and danda, and they, upon objection of ploughing the land, started beating Tikam Singh, causing him twenty injuries, that raised reasonable apprehension in the mind of appellants no. 1 and 3 that death or grievous hurt could be caused to their father, so being sons, they reacted to save him and snatched pauna and danda and used them in exercise of their right of private defence. For this the appellants have to show only the preponderance of probabilities and they are not required to prove this plea beyond reasonable doubt.
51. Here, it is very material to note that according to the prosecution, appellant Chitendra and Munesh caused injuries by using ballam and then informants side wielded pauna causing injuries to Tikam Singh, but the above story is not convincing and there appears no reason why members of informants party would cause injuries to Tikam Singh, who did not commit any assault or did any overt act. Instead of attacking Chitendra Singh and Munesh, who, according to the prosecution, were the actual assailants, the assault committed upon Tikam Singh raises serious doubt that the prosecution has suppressed material facts and also the genesis and origin of the incident.
52. The prosecution has not given any reason why informants side assaulted Tikam Singh instead of Chitendra and Munesh. It gives weight to the defence case that when Tikam Singh objected informants side from ploughing the disputed field, then he was attacked and twenty injuries were caused to him, then co-appellants Chitendra and Munesh, who are his sons, saw their father being beaten, had reasonable apprehension in their minds that death or grievous hurt could be caused to Tikam Singh. Then as a natural consequence, and to save their fathers life, in exercise of their right of private defence, they snatched pauna and danda from the side of the informant and in self defence, wielded them causing injuries. The injuries on the person of Tikam Singh shows that he sustained twenty injuries, out of them seven injuries were lacerated wound and the rest were contusions and other kind of injuries and some of the injuries were on the vital part of the body, such as head. Here, it is relevant to note that where it is to be examined whether there exists the right of private defence to the accused, then it is the part of body, which is attacked, is more important factor than the injuries actually caused. In the present case, the kind and number of injuries on the part of the body over which were caused to Tikam Singh, would have given reasonable apprehension to the appellant nos. 1 and 3 that death or grievous hurt could be caused to Tikam Singh, therefore, they were entitled to the exercise of right of private defence, even to cause death. It has come in the statement of P.W.1 that they were carrying pauna with no iron tip and it was simply a danda. We do not agree with this submission of prosecution because, if it was a simple stick or danda and was not a pauna, then they would have called it danda and not pauna.
53. Learned counsel for appellants has argued with regard to questions framed under section 313 Cr.P.C. that they have been wrongly framed. But he has not drawn attention of this Court with regard to any such question and also failed to show that any such wrong question has caused prejudice to the appellants to defend the case. So the submission on behalf of appellants in this regard has no force.
54. Learned counsel for appellants has contended that the injuries to Tikam Singh have not been explained in FIR or statements of witnesses under Section 161 Cr.P.C. so it raises doubt over the prosecution case. We do not agree with this submission, because when P.W.1 and P.W.2 were asked before the court, with regard to injuries to appellant Tikam Singh, then they have stated the circumstances under which he sustained such injuries. So merely on the ground that the injuries to Tikam Singh are not mentioned in FIR or in statements under Section 161 Cr.P.C., the evidence of P.W.1 and P.W.2 is not liable to be rejected.
55. It is submitted by learned counsel for the informant and learned AGA that as Tikam Singh was assaulted, therefore, he may have the right of private defence, if any, and not the other two appellants. So the appellants no. 1 and 3 are not entitled to the right of private defence. We do not agree with this submission as Section 97 of the IPC clearly provides that every person has a right, subject to the condition contained in Section 99, to defend his own body, or the body of any other person, against any offence affecting the human body. Therefore, the appellants Chitendra and Munesh had right to exercise the right of private defence, in order to save the person of their father Tikam Singh.
56. It has come in evidence that upon objection raised by Tikam Singh for ploughing the disputed field, he was assaulted by the informants side. Thus, it was the informants side, which was aggressor. On the other hand, as Tikam Singh was assaulted, giving rise to a reasonable apprehension of grievous hurt or death, the appellants were entitled to exercise their right of private defence.
57. It is submitted by learned counsel for the informant that the appellants have exceeded their right of private defence, as according to their version, the appellants had snatched pauna from informants side and used it and as and when they snatched the pauna, the danger of death or grievous hurt to them ceased, therefore, they exceeded their right of private defence by use of pauna.
58. We do not agree with this submission, as it cannot be judged by a golden scale how much force could be used to defend oneself exercising the right of private defence. It always depends upon the facts and circumstances of each case. In the present case, the appellant Tikam Singh was being attacked. Then the other appellants snatched the weapons from informants side. So it does not mean that weapons were handed over by the informant side voluntarily and simultaneously and there must have been some resistance on the part of informants side, so in the process of snatching the weapons and saving their father, Tikam Singh, if the other appellants wielded the weapons to defend their father, then it does not mean that they exceeded their right of private defnece.
59. In view of the above discussion, we come to the conclusion that the prosecution has miserably failed to prove its case beyond reasonable doubt. From the above discussion, it is proved that the informants side was the aggressor and the appellants had exercised their right of private defence. Thus, the Trial Court appreciated the evidence on record incorrectly and reached at the wrong conclusion of guilt of the appellants on surmises and conjunctures, and also upon incorrect appreciation of evidence.
60. Therefore, this appeal is allowed and the impugned judgment and order dated 23.12.1987 is set aside. The appellant Chitendra Singh is acquitted of the charge under Section 302, 323/34 and 323 IPC and appellant Munesh is aquitted of the charge under Sections 302/34, 323/34 and 323 IPC.
61. The appellants Chitendra Singh and Munesh are on bail. Their bail bonds and personal bonds are cancelled and the sureties discharged of their liabilities. They need not surrender.
62. Both the appellants shall execute a personal bond in the sum of Rs.25,000/- under Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 437-A of the Code of Criminal Procedure, 1973) for their appearance, in the event of an appeal being preferred against their acquittal.
63. Let a copy of this order be sent to the Trial Court concerned along with the trial court record for information and necessary compliance.
(Sanjiv Kumar,J.) (J.J.Munir,J.)
July 1, 2026
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