Allahabad High Court
Hausila And 4 Others vs State Of U.P. on 20 July, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1165 of 1986
Hausila and 4 others
..Appellant(s)
Versus
State of U.P.
..Respondent(s)
Counsel for Appellant(s)
:
A.D. Giri, Ishan Deo Giri
Counsel for Respondent(s)
:
A.G.A.
Court No. - 88
HON'BLE SANJIV KUMAR, J.
1. This Criminal Appeal has been filed under Section 374(2) of Code of Criminal Procedure,1973 (in short Cr.P.C.) by appellants, to wit, Hausila, Vidya, Janaki, Vishwanath and Nawadhu, against judgment and order dated 24.03.1986, passed by Sri Jagadish, the then Vth Additional Sessions Judge, Azamgarh, in Sessions Trial No. 614 of 1983 (State v Hausila and Others), under Section 147, 148, 307/149, 323/149 IPC, Police Station Atraulia, District Azamgrh.
2. By the impugned judgment and order dated 24.03.2026 the Trial Court has convicted appellants Janaki, Vishwanath, Nawadhu under Section 147 IPC and sentenced them to undergo six months rigorous imprisonment; appellants Hausila and Vidhya were convicted under Section 148 IPC and sentenced to undergo eight months rigorous imprisonment; appellants Janaki, Vishwanath, Nawadhu, Hausila and Vidhya were convicted under Section 307/149 IPC and sentenced to undergo three years rigorous imprisonment; all the appellants were also convicted for the offence punishable under Section 323/149 IPC and sentenced to undergo three months rigorous imprisonment. It was further directed that all the sentences shall run concurrently.
3. During the pendency of this appeal, appellant no.1 Nawadhu died and this appeal has abated against him vide order dated 11.12.2016, passed by this Court. Appellant No.2 Vidhya and appellant no.3 Janaki also died and this appeal abated against them vide order dated 11.03.2026. Now this appeal survives on behalf of appellant no.1 Hausila and appellant no.4 Vishwanath only.
4. Brief facts of the prosecution case are that Vishwanath son of Dev Narain, resident of Jhisupur, Police Station Atraulia, District Azamgarh, lodged an FIR at Police Station Atrauliya, Azamgarh on 27.10.1979 at 11:30 by submitting a written application (Tehrir) (Ext. Ka-1), stating therein that today at about 07:00 a.m., the first informant and his brother Shankar, along with Radhey Mohan and Shehshnath, were raising a wall of their hut (Madai), in their sahan land (a land which is appurtenant to a house that is an open land or courtyard attached to a residential house and the sahan is essential to access the house and is typically used for household and agricultural activities). It is alleged that in the meantime, the appellant Hausila, carrying a spear (Bhala), alongwith Vidhya also carrying a spear, Janakai, Vishwanath and Nawadhu armed with sticks (lathi) reached there and assaulted them and, as a result, he and his brother sustained grievous injuries. The first informant further stated that there is a litigation pending between both the parties and that, had Keshari, Sukhdev and Rajkumar not intervened at the spot and pacified the situation, the accused would have killed them.
5. Upon this information, FIR under Case Crime No. 189 of 1979, under Sections 147, 323, 325 IPC was lodged against the appellants and the investigation was entrusted to S.I. Ram Naresh Singh (P.W.3). He conducted investigation and recorded the statement of the first informant and other witnesses. The injured persons were medically examined. The Investigating Officer thereafter inspected the place of occurrence and prepared its site-plan. In view of the medical report and the statement of the witnesses, Sections 148 and 307 IPC were added and, after conclusion of investigation, charge-sheet (Ext. Ka-6) was filed before the concerned Court. The concerned Court took cognizance of the offence and summoned the appellants. The appellants appeared before the Court and were provided copies of relevant prosecution papers, under Section 207 Cr.P.C. Thereafter, the case was committed to the Court of Session for trial.
6. The appellants appeared before the Court of Session, where charge against appellants Janaki, Vishwanath and Nawadhu was framed under Section 147 IPC; charge against Hausila and Vidhya were framed under Section 148 IPC; charge against Janaki, Vishwanath, Nawadhu, Hausila and Vidhya was framed under Section 307 read with 149 IPC, and 323 read with 149 IPC, to which they pleaded not guilty and claimed to be tried.
7. The prosecution has examined four witnesses to prove its case namely, Vishwanath @ Tikori, the first informant (P.W.1), Shankar, the injured (P.W.2), S.I. Ram Naresh Singh, the Investigating Officer (P.W.3), Dr. S.N. Singh (P.W.4). Dr. H.S. Kashywap (C.W.1) was examined as a court witness.
8. P.W.1 Vishwanath @ Tikori is the first informant of the case. He has deposed on oath that he had a grove land to the west-south corner of his house. He further said that earlier it was in the name of Dashrath, Bhagauli and Maniram. After consolidation, two numbers were demarcated from land No. 11/9 as land no. 11/9/1 and 11/9/2 as abadi land. The first informant had possession over both these numbers from the time of his grandfather. P.W.1 further said that the accused had no concern with it. The appellant Hausila had filed a case before the Civil Court regarding a portion of these numbers. The appellant Hausila lost the case before Munsif Court and also from the Appellate Court. Thereafter, Hausila had filed an appeal before the High Court. He further said that accused Janaki is Hausilas father. The above case was filed by Janaki. P.W.1 further deposed that on 27.10.1979 at about 07:00 a.m., the first informant, along with Radhey Mohan, Shankar, Shesh Nath, was constructing a madai, above the grove land and was raising a brick wall for madai, then accused Hausila, Janaki, Vidhya, Nawadhu and Vishwanath arrived there. Out of them, Hausila and Vishwanath were carrying a ballam and the rest of the appellants were armed with lathi. Only Hausila assaulted him with ballam and none of the other appellant hit him. The ballam blow struck over his stomach, he subsequently stated that it struck over his abdomen and chest. He further deposed that rest of the accused started assaulting Shesh Nath, Radhey Mohan and Shankar and as a result, the first informant, Shankar, Radhey Mohan, Shesh Nath sustained injuries. Raj Kumar and Keshari Singh witnessed the incident and saved them. He said that Rajkumar and Keshari Singh would not depose before the Court as they have been won over. The first informant got the report lodged by filing the written application, which he has proved as Ext. Ka-1. He has said that they were medically examined at District Hospital, Azamgarh, where he remained admitted for fourteen days and underwent abdomen surgery. P.W. 1 further said that upon his application, the case was converted under Section 307 IPC.
9. P.W.1, in his cross-examination, said that he is an accused in the cross-case. The accused Janakis house is towards west and the land, over which they were constructing the wall, is also on the same side. Janakis house and Madai is situated in Arazi No. 11/9/2. Both the numbers have not been demarcated as Abadi land and he has given Janaki the said land and also the land over which his house is constructed. He further said that he started digging the foundation adjacent to Janakis madai. He had written in the application that it was Hausila, who had assaulted him with ballam, but had not told the Investigating Officer about it. He had written in the application that Hausila and Vidhya had assaulted him with ballam and if it is not mentioned in the application, then he cannot assign any reason for its omission. During the course of assault, Hausila and Janaki did not sustain any injuries and he had not seen any injury on their person. It is further stated that none of the person of his party had assaulted the accused. The scuffle took place for about five to ten minutes. The witness has denied the suggestion that the first informants party armed with lathi and ballam, was trying to take forcible possession over the said land of the appellants and, had also beaten them, and the appellants snatched ballam and wielded them in their self-defence.
10. P.W.2 Shankar has also supported the prosecution case and said that on 27.10.1979 at about 07:00 a.m., he, Vishwanath, Radhey Mohan and Shesh Nath were raising a wall to construct a madai, then all the accused, armed with spear and lathi came there. Vishwanath was assaulted by Hausila with a spear. He struck two blows to Vishwanath, which caused injuries over abdomen and chest. Vidhya wielded spear at Radhey Mohan, who caught hold of it and as a result, he sustained injuries over his hand. Rest of the appellants assaulted them with lathi. Vishwanath, Radhey Mohan, he himself and Shesh Nath sustained injuries and they were medically examined in District Hospital, Azamgarh. He deposed that no one from his side assaulted or attacked the accused side.
11. In cross-examination, P.W.2 has admitted that he is an accused in the cross-case and said that Vishwanath @ Tikori was assaulted by the appellant Hausila only with a spear. Vishwanath had not assaulted Tikori with a spear. He had not told the Investigating Officer that it was Hausila only, who had assaulted Tikori with ballam. It is for the first time in Court, he has said that Hausila had assaulted Tikori with ballam. Prior to the incident, there was no madai at the place where the scuffle took place. They were raising wall to construct a madai over the land. During the scuffle, he did not see any injuries on the person of Hausila and Janaki. None from his side had attacked with lathi and ballam. At the time of scuffle, 4-6 persons from village came and he has no enmity with them. Neither they have any friendship with the accused. He had seen Janaki since childhood. This witness has also denied the suggestion that he alongwith others from informants side, armed with lathi and ballam, reached at the place of occurrence to take forcible possession over Janakis land and committed assault, and, in defence, the appellants snatched their lathi and ballam and wielded at them.
12. P.W.3 S.I. Ram Naresh Singh is the Investigating Officer of the case. He has proved chik FIR Ex.Ka-3, scribed by Constable Tarun Prasad Pandey, by stating that he is well versed with his writing and signatures and also proved G.D. No.15 dated 27.10.1979 at 11:30 as Ext. Ka-4. He further said that he recorded statements of witnesses and thereafter inspected the place of occurrence and prepared its site-plan, which he proved as Ext. Ka-5. Thereafter, he concluded the investigation and submitted charge-sheet in Court, which he has proved as Ext. Ka-6. In cross-examination, he has said he is Investigating Officer of the cross-case as well and has filed charge-sheet in that case in his own handwriting.
13. P.W.3 has proved chik FIR and copy of G.D. of the cross-case, Case Crime No. 189A of 1979. After perusing the original papers from the record of Session Trial No. 615 of 1983, he has said that adjacent to the place of occurrence is appellants Janaki and Hausila s house. He did not try to note the nature of the disputed land from the Government record.
14. P.W.4 Dr. S.N. Sinha is a formal witness, who has medically examined Shesh Nath, Viswanath and Shankar on 27.10.1979, while being posted in District Hospital, Azamgarh. He found following injuries over the body of Shesh Nath:
(i) Abraded contusion 4 cm x 1 cm to the back of neck left side 10 cm below the left ear red in colour.
(ii) Contusion 9.5 cm x 7 cm to the back of left forearm 10 cm below the elbow joint
(iii) Contusion 9 cm x 6 cm to the back of right foot 8 cm below the knee.
(iv) Linear contusion 2 cm x 1 cm to the back and left of illiack 13 cm above red in colour.
(v) Complain of pain in right thigh with no visible injury.
15. P.W.4 further stated that the same day at about 12:50, he examined Vishwanath and found following injuries:
(i) stabbed wound 4.5 cm x 1.3 cm margins clear cut pointed over epigastric part in 12 oclock position. Intestines were coming out and injury was kept under observation.
(ii) Stabbed wound 4 cm x 1 cm margins clear cut and pointed to the right of chest 5 cm anterior. The depth could not be known. The injury was kept under observation and advised x-ray.
16. The doctor further deposed that on the same day at about 01:00-01:30 a.m., he examined Shankar and found following injuries:
(i) Lacerated wound 5 cm x .5 cm bone deep to the left of skull 8 cm above left of head and x-ray was advised.
(ii) Contusion 3 cm x 2 cm over the right thumb middle part of right thumb.
(iii) Contusion 7 cm x 3 cm to the left and outer part of face and in front of left ear.
(iv) complaint of pain over right chest with no visible injury.
17. The doctor opined that stabbed wound could be caused by ballam or bhala and the rest of the injuries would have been caused by lathi. The injuries to Vishwanath was grievous and dangerous to life. In cross-examination, he has said that the injured was conscious at the time of medical examination.
18. C.W.1 Dr. H.S. Kashyap has stated that on 27.10.1979, he was posted as Medical Officer in P.H.C. Atrauliya and examined Janki. He found following injuries on the person of Janaki:
(i) Stabbed wound 1.5 x 0.5 cm x 2 cm over right buttock 15 cm below the bone. Blood was oozing out.
(ii) Contusion 6 cm x 2 cm reddish blue to the back of right shoulder joint.
(iii) Contusion 8 cm x cm over the upper part and right shoulder reddish blue in colour.
(iv) Contusion 2 cm x 2 cm to the upper part of head.
In his opinion, all the injuries were simple in nature and injury no.1 was caused by any sharp edged weapon such as spear and injury nos. 2, 3 and 4 could have been caused by any blunt objec,t such as lathi and the injuries were one day old.
19. C.W.1 further stated that on the same day he has examined Hausila Prasad, who sustained following injuries:
(i) contusion 2 cm x 2cm to the left side of head 7 cm above the ear.
(ii) Contusion 3 cm x 3 cm over left forearm 8 cm below the left elbow reddish and blue in colour.
(iii) Contusion 4 cm x 2 cm t the back of left arm 7 cm above the elbow reddish blue in colour.
(iv) Abrasion 1 cm x 1 cm below the right knee.
C.W. 1 has stated that all the injuries were simple in nature and could have been caused by any blunt object, such as lathi and injury no.4 could have been caused by friction. The injuries were one day old and the witness has proved these injury reports as Exts. C-1 and C-2 and said that the injuries could have been caused on 27.10.1979 at 08:00 a.m. In cross-examination, he has said that injury no.1 was not fabricated. Bleeding was present from punctured wound, which was not superficial.
20. After closure of prosecution evidence, statement of accused persons were recorded under Section 313 Cr.P.C, in which they denied the prosecution case and appellant Janaki said that the first informants party was trying to take possession over their land and attacked them, and that they acted in their self-defence.
21. The Trial Court, after perusing the evidence on record, found that the prosecution has been able to prove its case beyond reasonable doubt and, accordingly, convicted and sentenced the appellants to the terms as indicated above.
22. Heard Mr. Ishan Deo Giri alongwith Himanshu Goswami, learned
counsel for surviving appellant nos. 1 and 4, Sri Akhilesh Kumar Mishra, learned AGA for State and perused the record.
23. Learned counsel for the appellants submits that the matter relates to cross-case. It is further submitted that appellants Janaki and Hausila have also sustained injuries in the incident and the prosecution has failed to explain the injuries sustained by both these appellants, which raises serious doubt upon the prosecution case. The non-explanation of injuries to both these appellants shows that the prosecution has suppressed the genesis and origin of the incident. It is also submitted that the disputed sahan land belonged to appellant Janaki and the informants party was the aggressor, who came over there to take illegal possession by raising construction over it, therefore, the appellants, in order to save their property, had exercised their right of private defence of property. It is also submitted that there are material contradictions and omissions in the statement of P.W.1 Vishwanath and P.W.2 Shankar raising serious doubt about their testimony. It is also submitted that the first informants party was aggressor. Therefore, the prosecution case is not proved beyond reasonable doubt and the injuries was caused to the informant side during the exercise of right of private defence by the appellants.
24. Learned counsel for the appellants next submits that the Trial Court has failed to appreciate the evidence on record correctly and reached at the wrong conclusion of guilt of the appellants, on the basis of surmises and conjectures, therefore, the impugned judgment and order is liable to be set aside.
25. Per contra, learned AGA submits that the prosecution case is proved beyond reasonable doubt. It is further submitted that the witnesses of fact have proved the prosecution case and the oral testimony is supported by medical evidence. The appellants were the aggressor and they attacked informants side causing them injuries. The appellants were not entitled to exercise the right of private defence of property, therefore, the appellants were rightly convicted by the Trial Court. Therefore, it is contended that this appeal has no force and it is liable to be dismissed.
26. In view of submissions of learned counsel for both the parties and the material on record, let us see whether the prosecution has been able to prove its case beyond reasonable doubt. As it is settled law that in a criminal case, the burden of proof lies upon the prosecution to prove its case beyond reasonable doubt.
27. As per prosecution, the incident occurred on 27.10.1979 at 07:00 a.m. in village Jhisupur, Police Station Atraulia, District Azamgarh. The FIR was lodged on the same day at 11:30 a.m. According to chik FIR (Ext. Ka-3), the distance from the place of occurrence to the Police Station is four miles. The appellants are named in the FIR. According to the prosecution, the first informant and his party was raising a wall to construct a madai (a small traditional hut made by readily available local material), then the appellants reached at the disputed sahan land (a land which is appurtenant to a house i.e. an open land or courtyard attached to a residential house and the sahan is essential to access the house and is typically used for household and agricultural activities).
28. The prosecution case is that the appellants were armed with bhala and lathi and they started assaulting the first informant and his brother causing them serious injuries. On the other hand, the defence case is that the disputed sahan land belonged to appellant Janaki and the first informants party was trying to illegally take its possession and also attacked the appellants, and that, they reacted in their self-defence. According to the defence, this was a matter of cross-case and appellant Janaki had lodged an FIR against the first informants party regarding the same incident.
29. P.W.1 Vishwanath, the first informant and P.W.2 Shankar, the injured witness, have admitted in their statement, that they are accused in the cross-case, which is pending against them. P.W.3 S.I. Ram Naesh Singh is the Investigating Officer of the present case as well as of the cross-case and he has deposed that he had investigated the cross-case and filed a charge-sheet under Sections 147, 323, 324 IPC against Vishwanath @ Tikori and other accused. P.W.3 has proved copy of G.D. and chik FIR, as well as the permission for investigation. C.W.1, Dr. H.S. Kashyap, who held the medical examination of appellants Janaki and Hausila, has proved their injury reports and stated that these injuries could have been caused on 27.10.1979 at 08:00 a.m. Therefore, in view of the above, it is established that this is a matter of cross-case and both the parties sustained injuries and have lodged FIR against each other and charge-sheet has been filed in both the cases.
30. With regard to the cross-case, it settled law that cross-case ought to be decided by separate judgments and the evidence filed in one case cannot be considered in other case. Each cross-case is to be decided on the basis of evidence filed in that particular case. As per the appellants, they exercised the right of private defence, when the first informants party reached at their sahan land to take its illegal possession and upon objection they started committing assault, so, the date, time and place of the occurrence is not in dispute. The disputed land is a sahan land. The only dispute is that, according to the first informant, the said sahan land belonged to them whereas, according to the appellants, the said sahan land belonged to appellant Janaki. Therefore, the first question that arises for consideration is that the disputed land belongs to which party.
31. In this regard, P.W.1, Vishwanath @ Tikori has testified that the disputed sahan land belonged to him and, in this regard, a civil dispute was instituted before the Civil Court and the appellant Hausila lost the case before the Munsif as well as the Appellant Court and Hausila had filed an appeal before the High Court. It is not in dispute that Janaki is the father of the appellant Hausila and P.W.1 has admitted that the above suit was filed by appellant Janaki. P.W.1, in his cross-examination, has stated that he had no madai or wall at the place, where he was erecting the wall. It is also stated that the face of his house is towards the north and the face of appellant Janakis house is towards the west. They were raising wall in front of the house of Janaki. He has stated that there is a boundary wall towards south-west of appellant Janaki’s house and to it’s south, there is a madai facing south. He has testified that the civil suit is pending with regard to the land, which is situated to the south of the boundary wall as stated above.
32. In view of the above statement of P.W.1, the civil suit which was pending between the parties was not with regard to the disputed sahan land, where the incident occurred, but that suit relates to a land, which is to the south of the boundary wall, where a madai facing south is situated. So, from the statement of P.W.1 the civil suit between the parties was not with regard to the disputed sahan land, so it cannot be said that the first informants side was erecting wall over their own land. Further, P.W.1 has stated that he was digging the foundation adjacent to Janaki’s madai. P.W.2 Shankar has also stated that they had no madai at the disputed place of occurrence, where the scuffle took place. It was for the first time, they were raising a wall to construct a madai there.
33. The Investigating Officer has prepared site-plan of the place of occurrence at the pointing out of the first informant. In view of the statements of P.W.1 and P.W.2 and also the site-plan as prepared by the Investigating Officer, it is evident that three walls were raised at the disputed place of occurrence, which are shown as letter ‘A’ ‘B’ and ‘C’ in the site-plan. The house of the first informant is not near the disputed land and the entrance of his house does not open over the disputed land but it is towards the west. Whereas, the dispute land is in front of appellant Janaki’s house and madai. The injured Shankar’s madai is also far away from the disputed place of occurrence having no entrance towards the disputed land. According to P.W.1, informant Vishwanath, he had grove and open land towards south west to his house. A perusal of the site-plan shows that towards the west and south to his house, there are some trees and vegetables grown over there, but it is away from the disputed place of occurrence. The disputed land is not near or in front of the house of the first informant or Shankar. The disputed land is protected by a boundary wall made of bricks from south, which shows that the disputed land cannot be held to be sahan land of the first informant, as it is not near or appurtenant to his house.
34. In view of the above, it appears that the disputed land belonged to appellant Janaki as it is in front of his house and madai, which could be used by him as an appurtenant land to his house for household and other agricultural activities. Admittedly, the first informants party reached at the place of occurrence and started raising boundary wall over the disputed land giving reasonable apprehension to the appellants that they are trying to take illegal possession of the same. Thus, the first informants party committed mischief and criminal trespass by entering over the appellant Janakis sahan land and started constructing the wall for madai.
35. In view of the above, now it is to be examined whether the accused persons inflicted injuries to informants party in their right of private defence. Sections 96 and 97 in Chapter IV of the IPC are relevant provisions dealing with the right of private offence under the category of General Exceptions. These provisions are reporduced here below:
“96. Things done in private defence. – Nothing is an offence which is done in the exercise of the right of private defence.
97. Right of private defence of the body and of property. – Every person has a right subject to the restrictions contained in Section 99, to defend–
First.- His own body, and the body of any other person, against any offence affecting the human body;
Secondly.- The property, whether moveable or immoveable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.”
36. With regard to the principles governing the right of private defence, the Honble Supreme Court in Darshan Singh vs State of Punjab & Anr 2010 (2) SCC 333 at paragraph nos. 54, 55, 56 and 58 has held 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.”
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.
56. 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 following judgments:
(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize 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.
37. Therefore, in view of Section 97 IPC, every person has a right, subject to restrictions contained in Section 99 IPC, to defend the property whether movable or immovable, of himself or any other person, against any act, which is an offence falling under the definition of theft, robbery, mischief or criminal trespass.
38. From the discussion made above and upon examination of evidence produced by the prosecution and the defence, it is clear that the appellants had reasonable apprehension and thus, were well within their right to exercise the right of private defence. The injuries sustained on behalf of the first informant side are not in dispute. The injured Vishwanth sustained two injuries, injured Shankar sustained five injuries and Shesh Nath also sustained five injuries. In view of the nature of injuries to all the injured and the statement of the doctor, it is not in dispute that the above injuries could be caused by use of ballam and lathi and injuries to Vishwanath were dangerous to life. The statement of P.W.1 and P.W.2 is that the appellants used lathi and ballam for causing injuries to the injured from the informants side.
39. Here, it is relevant to note that appellants Janaki and Hausila have also sustained injuries in the same incident and, as discussed above, the matter relates to a cross-case and the Investigating Officer of both the cases is the same and he has filed charge-sheet in both the cases. A perusal of injury reports of Janaki shows that he sustained four injuries, out of them three were contusions and one was punctured wound, over right buttock, right shoulder and front of the forehead and Hausila Prasad sustained four injuries of the nature of contusion and abrasion over left side of head, left forearm and below right knee.
40. In view of statement of C.W.1, Dr. H.S. Kashyap, injury no.1 to appellant Janaki was caused by any sharp edged pointed weapon such as spear and rest of the injuries could have been caused by lathi. The injuries to Hausila could have been caused by blunt object such as lathi. He has stated that punctured wound to appellant Janaki is not superficial. In the opinion of the doctor, the injuries to both these appellants were simple in nature.
41. It has been argued on behalf of the first informant that the above injury reports were manufactured and there is no explanation, why the medical examination of both the appellants was conducted only on 28.10.1979. I am unable to accept this submission of learned AGA. The number and nature of injuries sustained by appellants Janaki and Hausila shows that they cannot be manufactured and are also not superficial. So, mere delay of their medical examination does not adversely affect their case or raises any doubt over the defence case. Here, it is relevant to mention that P.W.1 Vishwanath and P.W.2 Shankar have stated that appellant Hausila struck ballam causing injuries to first informant Vishwanath, but it is not mentioned in the FIR or in his statement, recorded under Section 161 Cr.P.C. that appellant Hausila struck ballam to him. It is for the first time before the Court that this witness has stated that the appellant Hausila had struck ballam, which is an improvement and thus, amounts to contradiction in view of Section 162 Cr.P.C. and is not reliable.
42. Thus, it is established that in the same incident appellants Janaki and Hausila also sustained injuries, but both P.W.1 and P.W.2 have denied that the appellants sustained injuries during the course of the incident. They have said that they did not see any injuries over the body of Hausila and Janaki and none from their side assaulted the accused. So these witnesses have suppressed the true version of the incident. These witnesses are real brothers so they are related and interested witness.
43. In view of the above, it is clear that the prosecution has suppressed the injuries sustained by appellants Janaki and Hausila and has not explained how they sustained injuries. With regard to the effect of non-explanation of the injuries by the prosecution, which are caused to the accused in the same incident, there is a landmark judgment of the Supreme Court in Laxmi Singh and Others v State of Bihar, AIR 1976 SC 2263, where it has been held that if the prosecution has deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case, because it has suppressed the genesis and origin of the incident, which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. The Supreme Court, in the above decision, has further held that the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) That the prosecution has sup-pressed the genesis and the origin of the occurrence and has thus not presented the true version:
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution.
44. In view of the above legal position and forgoing discussion, I come to the conclusion that the prosecution has suppressed the genesis and origin of the incident and has not explained the injuries sustained by appellants Janaki and Hausila, which they sustained during the course of incident. Thus, the prosecution case is highly doubtful. From the evidence, it comes out that the disputed sahan land belonged to Janaki and the first informants side came there and started constructing the wall for madai, to take illegal possession over there and when the appellants objected to it, the fight began, and thus they assaulted the first informants side causing them injuries, while exercising their right of private defence. Here, it is also to be noted that the appellants also sustained some injuries over their head caused by lathi, which is vital part of the body, while they were protecting their property. So, the injuries suffered by them would have caused them reasonable apprehension that grievous hurt or death could be caused and thus, their act in causing injuries to informants side, in exercise of their right of private defence, is protected. It is also not proved by the prosecution that the appellants were the aggressor. Therefore, the prosecution case is not proved beyond reasonable doubt and thus, the surviving appellants Hausila and Vishwanath are entitled to be acquitted and the charge framed against them is not proved beyond reasonable doubt.
45. Thus, the Trial Court has not appreciated the evidence on record correctly and has reached at the guilt of the appellants on surmises and conjectures. Therefore, the impugned judgment and order is liable to be set aside and the conviction and sentence awarded to the appellants is not sustainable.
46. Therefore, this appeal is, accordingly, allowed and impugned judgment and order dated 24.03.1986 is set aside. The appellant Hausila is acquitted of the charge under 148, 307 read with 149 IPC and 323 read with 149 IPC, and appellant Vishwanath is aquitted of the charge under Section 147, 307 read with 149 and 323 read with 149 IPC framed against them.
47. The appellants Hausila and Vishwanath are on bail. Their bail bonds and personal bonds are cancelled and the sureties discharged of their liabilities. They need not surrender.
48. 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 his appearance, in the event of an appeal being preferred against his acquittal.
49. Let a copy of this order be sent to the learned Trial Court concerned, along with the trial court record for information and necessary compliance.
(Sanjiv Kumar,J.)
July 20, 2026
Subham
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