Salek Chand and Anr. vs State of U.P.

A. B. Srivastava, J.—This appeal is directed against a judgment and order dated 981983 of the 3rd Additional Sessions Judge, Meerut. whereby he convicted the three accusedappellants of the offences punishable under Section 302/ 34 and 323/34,1.P.C. and sentenced each of them to imprisonment for life and R.I. for one year respectively on the two counts and further convicted appellant Salekh Chand under Section 324 and appellants Ved Pal and Ajit under Section 324/34, l.P.C. and sentenced each of them to R. I. for two years. The sentences on all the counts have been directed to run concurrently.

The relationship between the parties to this litigation will be borne out from the pedigree stated by Roop Chand (P.W.1), the first informant, according to which Ballu Singh, Malkhan Singh and Ram Swarup (P.W. 2), residents of village Dagarpur, P. S Chandinagr, District Meerut are real brothers. Deceased Natthu Singh, informant Roop Chand (P.W. I) and Lila (P.W. 3) are the sons of Ballu Singh. The three accusedappellants Salekh Ved Pal and Ajit Singh are the sons of Malkhan Singh. The house of the branch of the accused persons is situated towards south, that of the branch of the first informant is situated towards north and that of Ram Swarup is situated in between the two.

According to the prosecution version in connection with the marriage of appellant Ajit Singh which took place on 751982 his family had borrowed utensils from the family of the first informant. The utensils included a big ''Parat'' of brass. About 810 days after the marriage while returning the utensils appellant Ved Pal brought a ''Parat'' of lighter weight than the one given to them. Which was consequently returned and Ved Pal took it back saying that he will give a ''Parat'' in place of it. The said assurance was repeated on 3151982 by appellant Salekh Chand On 661982 at about noon while Ballu Singh along with his three sons Natthu Singh, ROOD Chand and Lila were sitting in front of their ''Baithak'' the three brothers appellants Ved Pal, Ajit Singh and Salekh Chand came there with two ''Parats'', one new, and the other old, and asked Roop Chand to pick up his ''Parat'' on which Roop Chand replied that he could not identify his ''Parat'', they should collect the various ''Parats'' berrowed in connection with the marriage, to enable the female members of his family to identify and pick up their own ''Parat''. On this the accused persons collected and brought 56 ''Parats'' and brought the same to the house of the first informant, along with their uncle Ram Swarup and his son Satyavir. The ladies of the house picked up one of the ''Parats* which had not been used much, as their own, on which Ved Pal asked Roop Chand to swear before the Punches that it was his ''Parat''. Roop Chand declined to take oath and deceased Natthu Singh said that the accused persons may take all the ''Parats'' including the one picked up by the ladies of his family. On this appellant Ajit retoreded that if he was so generous why did he not repay the debt owed by his father. On this informant Roop Chand denied that there was any debt due to the appellants and said that if any amount was due according to them, they may settle the accounts. This led to heated exchange between the two sides and the three appellants went back t j their house and returned after a shortwhile, Ved Pal armed with a Lathi and Salekh Chand with a knife, standing in the way in front of the house of the first informant they started hurling abuses and throwing challenge. When the informant Roop Chand went near them and tried to pacify, Ved Pal gave a Lathi blow, which Lathi however was caught by him. Seeing this when Ballu Singh, Natthu Singh and Lila also came there and tried to pacify these persons, appellant Ajit Singh hit them by throwing brickbats and Ved Pal gave Lathi blows to athem. Meanwhile appellant Salekh Chand gave a blow with his knife causing injury in the back of chest of Natthu Singh who fell on the ground grievously injured. Salekh Chand thereafter attacked Roop Chand also with is knife who caught hold of the same in a bid to save himself and got injured in the process. When Ram Swarup and others present on the spot intervened the appellants ran away from the spot. Natthu Singh whose condition was precarious, was put on a cot in the ''baithak'', where he died shortly afterwards, A written report regarding the incident (kail) was prepared by Roop Chand and the same was lodged at the Police Station at 2.45 p. m. on 661982, the distance of the police station from the spot being 18 kilometres. Investigation was taken up the same day by Devendra Singh Tyagi (P.W. 4) then Station Officer. P.S. Chandinagar, District Meerut, who after recording the statements of the first informant and head Constable, writer proceeded to the spot of occurrence. There he made an inquest of the dead body of Natthu Singh, prepared inquest report Exhibit Ka 2 and long with relevant documents sent the dead body duly sealed for postmortem examination. The postmortem examination of the dead body of Natthu Singh was conducted by Dr. T. R. Sharma (P.W. 7) then Medical Officer, Primary Health Centre, bagpat on 761982 at 2 p. m. and the following antemortem injuries were found

(1) Lacerated wound in right side of forehead 1 cm X 0.5 cm X muscle deep. 3 cm. above the right eye brow.

(2) Abraided contusion in left side of forehead 1 cm X 1 cm. Just above the left eye brow.

(3) Lacerated wound in left side of head 4 cm X 0.5 cm x scalp deep. 9 cm above the left ear.

(4) Abrasion in front of right side of nose 1 cmxO.5 cm. 2 cm below the bridge of nose.

(5) Abrasion in front of middle of chin 0.5 cm X 0.5 cm.

(6) Incised wound in right side of back of chest 2 cm X I cm X depth could not ascertained 4 cm below the right inferior angle of scapula.

On internal examination right side of pleura and lower lobe of the right lung was found punctured below injury No. 6. Death was found to be a result of shock and hemorrhage on account of the antemortem injuries.

The other injured persons were also examined by Dr. T. Sharma on 761982 between 11.30 A.M. and 12.30 P.M. and the following injuries were found vide injury reports Exhibits Ka 13 to Ka (sic).

Lila

(1) Bluish red abrasion in front of left fore arm 1 cm X 0.5 cm, 4 cm above the left eye brow.

(2) Bluish red contusion in ventre lateral surface of left arm 9 cm x 2 cm , 4 cm below the top of left shoulder joint.

(3) Complaints of pain in right side of back of abdomen with no mark of any external injury.

Roop Chand

(1) Incised wound palmer aspect of left palm, 1.5cm X 0,5cm X muscle deep, 4 cm below the base of left index finger. Bluish red in co lour.

(2) Bluish red incised wound in palmer surface of left palm 5 cm x 0.5 cm X muscle deep 8.5 cm below the lateral and of left index finger.

(3) Bluish red incised wound in medical surface of palmer aspect of right thumb 0.5 cm X 0.5 cm x skin deep, 4 cm below the tip of right thumb.

(4) Bluish red abrasion in front of right length 5.5 cm. x 3.5 cm. 1.5 cm. below the right knee joint.

Ballu Singh

(1) Bluish red abrasion in back of right side of chest 5 cm x 0.5 cm 11 cm below the right inferior angle of scapula.

All injuries were simple caused by some blunt and hard object and about one day old.

The Investigating Officer during the course of investigation prepared a site plan of the place of occurrence, recorded the statement of witnesses. He also interrogated the accused persons who had surrendered in the Court and after completing the investigation laid chargesheet against the accused persons which led to their committal to the Court of Sessions.

The accusedappellants pleaded not guilty to the charges framed against them by the learned Sessions Judge and pleaded that the occurrence did not take place in the manner stated by the prosecution. According to their version after the marriage ceremony of appellant Ajit was over, at about 11 a. m. on the day of occurrence appellant Salekh Chand went to the house of informant Roop Chand with 5 or 6 ''Parats*. After showing those to the ladies of his family Roop Chand informed him that none of these were the ''Parat'' given to the appellants for being used in the marriage ceremony. When Salekh Chand insisted that the ''Parats'' brought by him included the one belonging to Roop Chand also, the latter started abusing him. On this he returned back to his home and was getting ready to go out when Roop Chand, Natthu Singh, Lila Singh, Ballu Singh and the female members of their family came there and abused. When he forbade them they indulged is marpit resulting into injuries to Salekh Chand and his mother. The ladies of the family of the accused persons threw brickbats in their self defence resulting into injuries to the people on the informant side.

Shortly after the incident Salekh Chand went to the Police Station to lodge his report but the police declined to accepted the same. Thereafter he went to PHC Khekra, District Meerut where he was medically examined by the Medical Officer Incharge Dr. Arun Kumar at 2

15 p.m. on 661982 and the following injuries were found :

(1) Lacerated wound 1 � x � 5x 1 cm deep on head middle ) 2 cm from root of nose edges irregular and contested fresh bleeding seen.

(2) Red contusion 10x2 cm on back of chest left side middle of scapula.

(3) Red contusion 7x2 cm on back of chest right side just below lower part of scapula.

(4) Red contusion 6 x 2 cm on front of right forearm 5 cm below elbow.

All the injuries were fresh and caused by some blunt object. Xray was advised and a reference was made with regard to injury No. 1. However, the (sic) is nothing to show that any Xray was actually done to ascertain the nature of this injury.

In defence the accusedappellants produced Dr. Arun Kumar (DW 1) to prove the aforesaid injuries and the injury report (Exhibit Kha 2 )

In support of its case the prosecution examined before the learned Sessions Judge, Roop Chand (PW 1), Ram Swarup (PW 2) and Lila (PW 3) as eye witnesses of the incident. Amongst the formal witnesses examined, S. I. Devendra Singh (PW 4) is the Investigating Officer, PW 5 Constable Dharau Singh had taken the injured Roop Chand, Lila Singh and Ballu Singh for medical examination and the dead body of Natthu Singh duly sealed for postmortem examination to the Primary Health Centre, Bagpat, Head Constable Itwati Lai (PW 6) is the scribe of the chic FIR registered at the Police Station at 2.45 p.m. on 661982 and PW 7 Dr. T. R. Sharma is the Medical Officerincharge P. H. C., Bagpat, who conducted the medical examination of the injured Roop Chand, Lila Singh and Ballu Singh and the postmortem examination of the dead body of Natthu Singh and proved the injuries already stated above which he found in the course of the said examination.

The learned Sessions Judge on an appraisal of the evidence and the circumstances accepted the prosecution version in Toto and convicted the three accusedappellants as stated above.

We have heard Shri A. D. Giri, learned counsel appearing on behalf of the appellants, learned A. G. A. appearing on behalf of the State and Shri D. P. Singh on behalf of the first informant and have gone through the entire evidence on record.

On behalf of the appellants the findings and conviction recorded by the learned trial Court have been assailed and it has been contended that the prosecution has failed to prove beyond reasonable doubts that the accusedappellants or any one or more of them committed murder of Natthu Singh by causing injuries with intention to cause his death or voluntarily caused hurt to Roop Chand, Lila and Ballu Singh, It has not come with a true story of the genesis and details of the incident, in which on account of the dispute relating to return of ''parat'' borrowed by the accusedappellant in connection with the marriage of appellant Ajit the informant party attacked appellant Salekh Chand and caused injuries to him and his other and the injuries to the persons on ''the informant side including these to deceased Natthu Singh, were cause! by the family members of the accusedappellants in exercise of the right of private defence of body of Salekh Chand and his mother, in which they did not exceed. No offence thus was committed by any of the accusedappellants and they are entitled to be exonerated.

The contention on behalf of the respondents on the other hand is that firstly the prosecution on evidence is cogent and clinching enough to prove that the accused persons in furtherance of their common intention committed an act of aggression by causing hurt to Roop Chand, Lila, Ballu Singh, and causing injuries to deceased Natthu Singh with intention to cause his death, the story of appellant Salekh Chand having received injuries in the course of this incident is false and imaginary and in any case even if the injuries mentioned in Exhibit Kha 2 occurred to appellant Salekh Chand in this incident, the same did not justify causing fatal injury to deceased Natthu Singh and in causing the same the accusedappellants exceeded in exercise of right of private defence.

Before entering into a discussion on the rival questions raised by the two sides, it will be useful to refer to the facts about which there is no dispute between the parties and which are also supported by the evidence on record.

Admittedly the parties belong to a common ancestry. The three appellants who are real brothers are nephews of injured Ballu Singh (not examined in the trial), whose sons are informant Roop Chand (PW I), Lila Singh (PW 3) and Natthu Singh the deceased. The PW 2 Ram Swarup is the real brother of Ballu Singh. The house of the accused persons is situated towards south. Towards north of it is the house of Ram Swarup and further north of the house of Ram Swarup is the house of Ballu Singh and his sons facing north and northeast.

It is undisputed that in connection with the marriage of appellant Ajit Singh amongst other utensils a big ''parat'' of brass was also borrowed by the family of the accusedappellants from the family of informant Roop Chand. While the said utensils were being returned, the ''parat'' offered by the accused persons was not accepted by Roop Chand on the plea that that was not the one which he had lent and asked them to collect all the ''parat'' borrowed during the marriage so that one belonging to the informant could be identified. On the day of incident >56 ''parats'' were taken to the house of the first informant for identification by the members of the family, but the tangle could not be solved.

From this stage the version of the parties differs with each other. According to prosecution version out of the 56 ''parats'', the ladies picked up one which bad not been used much as their own, upon which appellant Ved Pal asked the informant to swear that the ''parat'' belonged to him and when the refused to so swear and deceased Natthu Singh asked the accused persons to take all the ''parats'' appellants retorted that if they were so generous why do they not pay off the debt due to their father, and this led to altercation followed by the appellants bringing Lathi and knife from their house and attacking the informant party and causing injuries, including a stab would in the chest to deceased Natthu Singh by appellant Salekh Chand.

On the other hand, according to defence version after showing the ''parats'' to the ladies of his family, informant Roop Chand informed that none of these were his ''parats'' and indulged in abusing. Upon which, appellant Salekh Chand who had gone with the ''parats'' returned to his home and shortly afterwards, Ballu Singh, his three sons, PWs 1 to 3 and the deceased along with their women folk, reached there and attacked and caused injuries to Salekh Chand and his mother and the injuries to the deceased and others on the informant side were caused in exercise of right of private defence by the family members of the accused persons.

Now we have to consider and scrutinise the evidence on record as well as the attending circumstances to determine as to which the two stories, and to what extent, is correct and probable.

Coming first to the point of genesis and the place of incident, it would be found that there is no dispute about the fact that the exercise regarding return of the ''parat'' borrowed from the informant''s family in connection with the marriage of appellant Ajit, took place at the ''baithaka'' of the informant''s house, and the two sides could not reach to an amicable solution, with the result that the ''parat'' of the informant could not be returned. While according to the prosecution version all the three appellants Salekh Chand, Ved Pal and Ajit had come to their place with the ''parats'' according to the appellants only Salekh Chand had'' taken the ''parats''. The version of the prosecution supported by the statements of PW 1 Roop Chand, PW 2 Ram Swarup and PW 3 Lila, however, appears to be correct in view of the fact that carrying of 56 big ''parats'' itself would have required more than one person, the other reason being that the matter regarding return of ''parats'' having already generated misunderstanding between the two sides, Salekh Chand would not have gone all alone to the place of the informant. Thirdly, the very fact that it was thought necessary by the appellants to take their uncle PW 2 Ram Swarup and his son, also indicates that Salekh Chand would not have gone all alone, rather all the three appellants went to the place of the first informant in connection with the return of the ''parat''.

As far as the factors immediately preceding the main incident, also, the prosecution version is fully established by the testimony of its witnesses and the circumstances, and it also finds corroboration from the own version of the defence. It has specifically been stated by the PWs 1 to 3, that when the tangle regarding the ''parat'' due to be returned to the informant could not be solved, and the accused persons took exception to the family members of the informant identifying a relatively new ''parat'' as their own, the accused persons did not agree to deliver the same till the informant stated on oath that the ''parat* belonged to him. Since this was not acceptable to the informant, and deceased Natthu Singh told accusedappellants to take back all the ''parats'' including the one belonging to him, the accused persons retorted by saying that if they were so generous why did they not return their father''s debt, and this led to an alteration between the two sides, where after the accused persons went back to their house and returned after a few minutes Ved Pal with a lathi, Salekh Chard with a knife and challenged the people on the informant side and indulged in assaulting. Their crossexamination has not yielded anything which may go to discredit their version as a whole in this regard. Although appellant Salekh hand stated under Section 313, Cr. P. C. that the informant Roop Chand told him that none of the 56 ''parats'' brought to his place was his ''parat'' and indulged in abusing, where after he returned back to his home, followed after a shortwhile by the members of the informant side including the deceased, who indulged in assaulting, no such suggestion was put forth to any of the prosecution witnesses. The suggestion in crossexamination to the PW 1 informant Roop Chand was merely to the effect that the deceased and the three other injured on the informant side went to the house of the appellants and assaulting Salekh Chand, in whose defence the ladies of the appellants'' family hurled brickbats causing injuries, and one Pemu who had arrived on the spot stabbed Natthu by snatching knife from the informant.

On behalf of the prosecution reliance has been placed on Exhibit Ka17, certified copy of an affidavit dated 694982 filed by Ved Ram the brother of the appellants in support of the bail application on behalf of the appellant Salekh Chand moved in the High Court, wherein Paragraphs 12, 18, and 21, it was specifically stated that on account of heat generate and alteration caused, in connection with the ''parat'' and the alleged debt affair, there were heated exchanged and marpit and the appellants were attacked by Natthu Singh in front of the informant''s house. Of course, it was further stated that when they ran towards their house, they were chased and their mother and appellant Salekh Chand were assaulted at the said house. This affidavit which has specifically been put under Section 313, Cr. P. C. to the appellants, is clearly admissible as a piece of evidence and goes to fully support of the prosecution version regarding the genesis as well as the place of occurrence.

It has been contended on behalf of the appellants by their learned counsel that the recitals in this affidavit cannot be read in part rather has to be read as a whole and so done, it cannot be taken to support the prosecution version regarding the genesis and the place of incident. This contention is not sustainable, as the law does permit accepting even a part of the admission where such part is separable from the rest of the statement to the contrary and is in accordance with the evidence on record. In the instant case as the circumstances go to show the plea of the defence regarding the incident of assault having taken place in front of the house of the accusedappellants ii wholly untenable. In this view of the matter, therefore, the averment in Exhibit Ka17 regarding the incident being a sequel to the altercation which ensued about ''parat'' affair and having occurred in front of the house of the first informant, is fully available to the prosecution to corroborate its version regarding the genesis as well as the place of occurrence.

In view of the above facts and circumstances, we therefore, find that the prosecution has fully established that the incident in question resulting into fatal injuries to Natthu Singh and injuries to Ved Pal, Lila Singh and Ballu Singh occurred in front of the house of these persons and no part of it occurred in front of, or near the house of the appellants. The prosecution has also succeeded in establishing that this incident originated on account of the fact that the appellants did not agree that the ''parat'' identified by the ladies of the informant''s family belonged to them, and on the suggestion of deceased Natthu Singh to keep the said ''parat'' also, the accused persons got agitated and castigated the informant and his brothers for not paying the debt due to their father.

It is also established from the facts, the evidence on record, as well as the circumstances that the dispute regarding the identity of ''parat'' and the sarcastic remark of deceased Natthu Singh on the one hand, and the appellants on the other, led to heated exchange and altercation between the two sides, in the course of which both sides resorted to strong arm tactics and appellant Salekh Chand from the accused side, deceased Natthu Singh, his two brothers and father from the informant side, were injured, out of them Natthu Singh fatally.

On the point of injuries to appellant Salekh Chand, there has been produced an injury report Exhibit Kha2 and D. W. 1 Dr. Arun Kumar examined, to prove that he had four injuries, a lacerated wound on the head and three contusions on the other parts of the body, caused by some blunt object at about the time this incident took place. On behalf of the prosecution however, these injuries to appellant Salekh Chand were not admitted and the injury report has been assailed as fictitious in view of the fact that the name of the injured in the same is Salekh Ram Verma and not Salekh Chand.

No doubt this discrepancy is there, and even the Xray of injury No. 1 for which a reference was made, does not appear to have been got done, and this creates some doubt about the matter but in our opinion, is not sufficient to discard the defence plea on this point altogether, more so when D.W. 1 Dr. Arun Kumar categorically stated that appellant Salekh Chand was the person who was medically examined by him. Under law also an accused has not to prove his version beyond reasonable doubt as is required of the prosecution, rather is required only to show its reasonable probability. The totality of circumstances, as also the circumstances in which the marpit took place, do indicate a high probability of these injuries, simple in nature, to have been caused, to Salekh Chand one of the accused persons, in this very incident.

Now coming to the effect of the injuries caused to appellant Salekh Chand in this incident, it has vehemently been pleaded on behalf of the appellants that this goes to falsify the genesis of the incident given by the prosecution and consequently rob its testimony of the evidentiary value, entitling the appellants to acquittal, without their being required to establish that the fatal injuries to Natthu Singh, and those to others from the informant side, were caused in exercise of right of selfdefence.

The contention on behalf of the respondent, on the other hand, is that the mere nonexplanation of injuries,, if any, to appellant Salekh Chand will not, in law be sufficient to dub the prosecution version regarding the genesis and the details of the incident as untrustworthy.

The law is not that in all cases where injury to an accused person is not explained, the prosecution version regarding genesis is to be totally discarded. It will still be open to the court to assess and ascertain from the totality of evidence on record as to want, if any, is the effect of such nonexplanation and unless the nonexplanation goes to the very root of the matter, the prosecution story cannot be thrown lock, stock, and barrel. In Vijayee Singh and others v. State of U. P., AIR 1990 SC 1459, it was a case of rioting in connection with fishing in a bond in which two persons from the informant''s side were killed and three others received injury. Two out of the 14 accused persons had also received injuries, one of them a lacerated wound and the other a fire arm injury on his right thigh. On the question regarding nonexplanation of the injuries of the accused persons and the consequences flowing there from, the Supreme Court on a consideration of the law laid down in Mohar Rai v. State of Bihar, AIR 1968 SC 1281 and Lakshmi Singh V. State of Bihar, AIR 1976 SC 2263 stated in Para 9 that, in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case could not automatically be rejected without any further probe. After analyzing the evidence of the eyewitnesses examined in the trial, the Supreme Court further observed in Para, 9 as follows

"We have carefully considered their evidence and nothing material is elicited in the crossexamination which renders their evidence wholly untrustworthy. No doubt they have not explained the injuries found of accused Nos. 13 and 14. From this alone it cannot be said that the prosecution has suppressed the genesis and the origin of the occurrence and has not presented a true version. Though they are interested, we find that their evidence is clear, cogent and convincing. The only reasonable inference that can be drawn is that the two accused persons received the injuries during the course of the occurrence which were inflicted on them by some members of the prosecution party."

It was further observed in Para 10 :

"As discussed above, we are satisfied in this case that non explanation of injuries of these two accused persons does not affect the prosecution case as a whole but in a case of this nature and the all that the defence can contend on the basis of nonexplanation of injuries found on these two accused is that the accused could have bad a right of private defence or at any rate a reasonable doubt arises in this regard".

Elaborating further it was observed in Para 33 :

"The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden. The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case. He may adduce the evidence in support of his plea directly or rely on the prosecution case itself or, as stated above, he can indirectly introduce such circumstances by way of crossexamination and also rely on the probabilities and the other circumstances. Then the initial presumption against the accused regarding the nonexistence of the circumstances in favour of his plea gets displaced and on an examination of the material if a reasonable doubt arises the benefit of it should go to the accused. The accused can also discharge the burden under Section 105 by preponderance of probabilities in favour of his plea. In case of general exceptions, special exceptions provisos contained in the Penal Code or in any law defining the offence, the Court, after due consideration of the evidence in the light of the above principles, if satisfied, would state in the first instance, as to which exception the accused is entitled to, then see whether he would be entitled for a complete acquittal of the offence charged or would be liable for a lesser offence and convict him accordingly."

Applying the above principles on the facts of the instant case, also it would be found that although there is no explanation by the prosecution witnesses of the injuries to appellant Salekh Chand, it does not falsify the prosecution story in its entirety. It of course goes to show that the genesis and details of the incident as stated by the prosecution is correct in part only, and will require an enquiry as to what actually happened in this incident as per evidence available, and circumstances.

As already stated above the eyewitnesses examined by the prosecution (PWs 1 to 3) are the most natural witnesses. While the PW 1 Roop Chand and PW 3 Lila received injuries in this incident, and consequently their presence cannot be doubted, the PW 2 Ram Swarup is the real uncle of the appellants and PWs 1 to 3, who as per the evidence had been called along with his son to be present on the occasion of identification of the ''parats* and had no axe to grind against any party. It is amply borne out from their evidence, coupled with the other material on record already referred above, and the circumstances, that the altercation and exchange of abuses which followed the failure of the parties to solve the tangle, relating to the ''parat of the informant, led to this incident in front of the informant''s house. It appears from the circumstances, that the uncharitable remarks of the accused side regarding the misplaced generosity of foregoing the ''parat'', and the same time nonpayment of debt allegedly due against their father, provoked the people on the informant side, and some from amongst them, assaulted Salekh Chand by lathes and also brickbats, causing simple injuries, including one on head. The three appellants thereupon retaliated by attacking the people on the informant side with lathi knife and brickbats. While the other two appellants in the process caused simple hurt by blunt weapon to Natthu Singh, Lila Singh and Ballu Singh

appellant Salekh Chand caused the fatal injury in the back of chest to Natthu Singh rupturing the pleura and lung and also caused hurt by knife to informant Roop Chand.

It has specifically been stated by the eyewitnesses that after causing the fatal injury to Natthu Singh, appellant Salekh Chand tried to attack Roop Chand (PW 1) who in a bid to ward off the same, caught hold of the knife resulting into injuries, in his palms. The nature and location of his injuries No. 1 to 3 indicate these too have been caused in the process of catching hold or attempting to catch hold, the blade of knife. No other explanation or these injuries to Roop Chand is forthcoming from the defence.

The fact that an injury sufficient to cause death in the ordinary course of nature, and on vital part (back of chest), was caused to deceased Natthu Singh by appellant Salekh Chand, who also tried to repeat the attack with knife on Roop Chand, goes to clearly indicate that in causing the fatal stab injury to Natthu Singh he intended to cause his death, and by so doing exceeded in the exercise of his right of private defence of body which, in the circumstances and the nature of hurt caused to him

could extend only to causing of hurt to ward off the assault, but not causing death. He thus committed an. offence punishable under Section 304, Part 1 of the I. P. C., though not under Section 302, 323 or 324, I. P. C. His conviction deserves to be modified accordingly.

In taking our above view we are fortified also by the principles of law regarding extent of right of private defence laid down by the Supreme Court in Baij Nath Mahton and others v. State of Bihar, reported in JT 1993 (4) SC 95,

As regards appellants Ved Pal and Ajit, however they not being the authors of, or instrumental in, causing the fatal injury to the deceased, the case of the prosecution itself being that they caused simple injuries to the deceased and others on the informant side, in the course of the incident where injuries by Lathi and brickbats, were caused to appellant Salekh Chand giving rise to the right of privatedefence of body, by their act of causing hurt they cannot be taken to have exceeded in the exercise of right of private defence. They thug are not guilty of any of the offences, with which they were charged, and their conviction and sentences deserve to be set aside.

As to the punishment awardable to appellant Salekh Chand for the offence under Section 304, Part 1,1.P.C., we feel taking into consideration the totality of circumstances, that a sentence of five years, R. I. shall meet the ends of justice.

This appeal, thus, deserves to be allowed in part accordingly as held above.

We therefore, alien1/ the appeal in part and setting aside the conviction of appellants Ved Pal and Ajit acquit them of all the charges. They are on bail. They need not surrender and their sureties and personal bond are discharged.

The appeal in respect of appellant Salekh Chand is partly allowed. His conviction under Sections 302/34, 323/34 and 324,1. P. C. is set aside and instead he is convicted of the offence under Section 304, Part 1, I. P. C, and sentenced to R. I. for five years. He shall surrender to serve out the sentence, and his sureties shall be discharged.