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PETITIONER: JAI DEV

       Vs.

RESPONDENT: THE STATE OF PUNJAB(And Connected Appeal)

DATE OF JUDGMENT: 30/07/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS MUDHOLKAR, J.R.

CITATION:  1963 AIR  612            1962 SCR  (3) 489  CITATOR INFO :  R          1968 SC 702  (19)  R          1975 SC1674  (18)

ACT: Criminal     Law--Murder--Self-defence-Scope--Threat      to possession of land--Indian Penal Code (Act 45 of 1860).  ss. 99,  100--Code of Criminal Procedure, 1898 (Act 5 of  1898), s.342.

HEADNOTE: The  appellants  along with four others  were  charged  with having committed offences under s. 148 and ss. 202 and  326, read  with s. 149, of the Indian Penal Code.   The  incident which gave rise to the present criminal proceedings  related to a cultivable field in respect of which a dispute arose as to its possession between the appellants and the faction  of the  complainants.   On September 14, 1960, a  rioting  took place  in  the  field which resulted in  the  death  of  six persons and injuries to nine persons.  The appellant’s  case was  that  they were in possessions of the  field  and  were cultivating  it  at  the time of the  incident  whereas  the prosecution  contended that the complainant’s party  was  in possession and that the appellants virtually invaded it  and caused  a massacre.  The High Court found that the  crop  in the  field  had been ploughed by the  appellants  and  their companions  and that when the operations were being  carried on by them on the day of rioting, the villagers, who did not tolerate the strangers, came to the field armed with weapons to  take forcible Possession of the field, that as  soon  as fire-arms were used for the first time killing a person, the villagers  started  running  away and  that  after  all  the villagers  had  run away, the appellants used  their  rifles against  their  respective  victims  when  the  latter  were standing  at  a considerable distance from them.   The  High Court  took  the  view  that as at  the  relevant  time  the property  had  been saved from the trespass,  there  was  no justification  for  using  any  force  against  the  running villagers  and  so, the appellants who were proved  to  have caused the deaths of the victims could not claim  protection of  the  right  of private defence and were  guilty  of  the offence of murder under s 302.

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Held, that the appellants were rightly convicted under s.302 of  the Indian Penal Code on the findings given by the  High Court. 490 In exercising the right of private defence, the force  which a  person defending himself or his property is  entitled  to use must not be unduly disproportionate to the injury  which is  to  be averted or which is  reasonably  apprehended  and should  not exceed its legitimate purpose.  The use  of  the force must be stopped as soon as the threat has disappeared. The  exercise of the right of private defence must never  be vindictive or malicious, In  exercising  its  powers  under s. 342  of  the  Code  of Criminal  Procedure the Court must take care to put all  the relevant  circumstances  appearing in the  evidence  to  the accused, so that he might get an opportunity, to say what he wanted  to do so in respect of the prosecution case  against him,  but it is not necessary that the Court should  put  to the  accused  detailed  questions which may  amount  to  his cross. examination. Held,  that  the failure to put the specific  point  of  the distance from which the appellants used their rifles,  under s.  342 of the Code of Criminal Procedure, did  not  vitiate the trial or affect the conclusion of the High Court.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals  Nos.  56 and 57 of 1962. Appeals  by special leave from the judgment and order  dated October  4,  1961,  of the Punjab  High  Court  in  Criminal Appeals Nos. 635 and 636 of 1961 and Murder Reference No. 59 of 1961. Frank   Anthony,  Ghanshiam  and  P.C.  Aggarwala  for   the appellants. N.S. Bindra, Kartar Singh, Assistant Advocate General for the State of Punjab and P. D. Menon, for the respondents. 1962.  July 30.  The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-The two appellants Jai Dev and Hari Singh along with four others Yudhbir Singh, Dhanpat Singh,  Sajjan Singh  and  Parbhati  were  charged  with  having  committed offences under s.148 and ss-302 and 326 both read with s.149 of the  491 Indian  Penal  Code.   The case against  them  was  that  on September 14, 1960, they formed themselves into an  unlawful assembly  in  the area of Dhani Khord and  that  the  common object  of this unlawful assembly was to commit the  offence of  rioting  while  armed with deadly weapons  and  that  in pursuance  of the said common object the offence of  rioting was  committed.   That is how the charge under  s.  148  was framed.   The prosecution further alleged that on  the  same day  and  at  the same time and  place,  while  the  accused persons  were  members  of an unlawful  assembly,  they  had another  common object of committing the murders  of  Hukma, Jai  Narain, Jai Dev, Amin Lal, Mst.  Sagroli and Mst.   Dil Kaur  and that in pursuance of the said common  object,  the said  persons  were murdered.  Dhanpat Singh  killed  Hukma, Sajjan Singh attacked Hukma, Yudhbir Singh shot at Amin Lal, Jai  Dev shot at Mst.  Sagroli and victim Jaidev,  and  Hari Singh shot at Jai Narain and Parbhati killed Mst.  Dil Kaur. It is the murder of these six victims which gave rise to the charge  against the six accused persons under s. 302/149  of the Indian.  Penal Code.  An assault made by the members  of

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the said assembly on Rama Chander, Jug Lal, Mst.  Chan Kaur, Sirya,  Murti and Murli gave rise to a similar charge  under s. 326/149.  At the same trial along with these six persons, Basti  Ram was tried on the charge that he had  abetted  the commission  of the offence of murder by the members  of  the unlawful  assembly  and thus rendered himself liable  to  be punished  under  s. 302/109 of the Indian Penal  Code.   The case  against these seven accused persons was tried  by  the learned  Addl.  Sessions Judge, Gurgaon.  He held  that  the charges  against Parbhati and Basti Ram had not been  proved beyond a reasonable doubte ; so, he acquitted both the  said accused  persons.  In respect of the remaining five  accused persons, the learned Judge held that all the three 492 charges  framed  against  them had  been  proved,  beyond  a reasonable  doubt.  For the offence of murder,  the  learned Judge  directed that all the five should be hanged; for  the offence  under s. 326/149 he sentenced each one of them  two years  rigorous imprisonment and for the offence  under  is. 148 he  sentenced each one to suffer R. I. for  one  year. These two latter sentences were ordered to run  concurrently and  that too if the death penalty imposed on them  was  not confirmed by the High Court. Against this order of conviction and sentence, three appeals were prefered on behalf of the five condemned persons.   The sentences  of death imposed on them were also submitted  for confirmation.    The  Punjab  High  Court  dealt  with   the confirmation proceedings and the three appeals together  and held that the conviction of Yudhbir Singh, Dhanpat Singh and Sajjan  Singh  was not justified and so, the said  order  of conviction was set aside and consequently, they were ordered to  be acquitted and discharged.  In regard to Jai  Dev  and Hari  Singh the High Court differed from the view  taken  by the trial Court and held that they were guilty not under  s. 302/149 but only under s. 302, of the Indian Penal Code.  In the result, the appeals preferred by them were dismissed and their conviction for the offence of murder and the sentences of  death imposed on them were confirmed.  It is this  order which is challenged by the two appellants before us in their appeals  Nos.  56 and 57 of 1962.  These  two  appeals  have brought to this Court by special leave.  The  incident which has given rise to the present  criminal proceedings  occurred in Khosra No.388 in Mauza Ahrod  known as  ’Inamwala field’ on September 14, 1960, at  about  10.30 A.M.  This  incident  has led to the death  of  six  persons already  493 mentioned  as well as the death of Ram Pat who  belonged  to the  faction  of the appellants.  It has  also  resulted  in injuries to nine persons three of whom belonged to the  side of  the appellants and six to the side of the  complainants. The  incident  itself was in a sense a tragic  and  gruesome culmination  of the battle for possession of the land  which was  waged  between the appellants on the one hand  and  the faction  of  the  complainants on the  other.   One  of  the principal  points which fell to be considered in the  courts below  was : who was in possession of the said field at  the material  time ?  The appellants pleaded that they  were  in possession  of the field and were cultivating the  field  at the  time of the incident, whereas the prosecution  contends that the complainants’ party was in possession of the  field and  the appellants virtually invaded the field  and  caused this massacre. The  prosecution case is that between 9 and 10 A.M.  on  the date of the offence, the appellants and, their brothers  Ram

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Pat  and Basti Ram came to the field with their tractor  and started ploughing the bajra crop which had been sown by  the villagers  who  were tenants in possession.  Jug  Lal,  Amin Lal,   Ram  Chander,  Sunda,  Jai  Dev,  Hukma  and   others remonstrated  with the appellants that the crops  raised  by them should not be destroyed.  Dhanpat Singh who was driving the tractor was armed with pharsi while the appellants  were standing  armed  with rifles.  Yudhbir Singh had  a  pistol. Sajjan  Singh  and Parbhati had phars is and Ram Pat  had  a bhalla.   Thus  all the appellants were  armed  with  deadly weapons  and three of them had fire-arm.  According  to  the prosecution, the remonstrance made by Juglal and others  did not  help  and the appellants told them that  they  had  got possession  of the land and that they would not  permit  any interference in their ploughing operations.  That  invitably led to an 494 altercation  and an attempt was made to stop the working  of the  tractor.  This immediately led to the terrible  souffle which  resulted  in  so many deaths.  Sajjan  Singh  gave  a pharsi   blow  to  Juglal  whose  left  arm   was   touched. Thereupon, Ram Pat raised his bhalla against Juglal  causing injuries  to the latter on the left side of the abdomen  and on  the  right hand wrist.  Hukma then snatched  the  bhalla from  the hands of Ram Pat and gave a blow to him  in  self- defence.  As a result, Ram Pat fell on the ground and  died. Sajjan Singh, Dhanpat Singh and Parbhati then gave blows  to Hukma  with pharsis, Hukma fell on the  ground  unconscious. At  this  stage,  Amin Lal asked the  appellants  and  their friends  not  to  kill people but the only  result  of  this intercession  was that he was shot by the pistol of  Yudhbir Singh.   Then everybody on the complaints; side  started  to run away.  Thereafter Jai Narain was shot dead by the appel- lant  Hari  Singh.   Dil Kaur was  killed  by  Parbhati  and others, and victim Jai Dev and Met.  Sagroli were shot  dead by  the  appellant  Jai Dev.  That,  in  substance,  is  the prosecution case. On  the  other hand, the defence was that  all  the  accused persons  had  gone to Inamwala field at about 8.30  A.M.  on September  14, 1960, and were engaged in the lawful  act  of ploughing the land of which they had taken possession.  They had  put the tractor on the portion of the bajra crop  which was ’kharaba’ with the object of using it for manure.  After this  operation  had gone on for nearly two hours,  a  large number  of  residents of Dhani Sobha  and  Ahrod,  including women,  came on the spot armed with deadly weapons and  they started abusing and assaulting the accused persons with  the weapons  which they carried.  The accused persons then  used jellies, kassi and lathi in self-defenoe.  Amin Lal from the complainants’  party was armed with a pistol which he  aimed at the accused persons,  495 Sajjan  Singh  then  gave a lathi blow to Amin  Lal  and  in consequence,  the  pistol fell down on the ground  from  his hands.   It was then picked up by Yodhbir Singh and he  used it  is retaliation against the assailants and fired five  or six rounds.  Basti Ram who was charged with abetment of  the principal offences denied his presence, while the six  other accused  persons  admitted their presence on  the  spot  and pleaded self-defence. The  prosecution  sought to prove its case by  leading  oral evidence of the witnesses who were present at the scene  and some  of  whom had received injuries  themselves.   It  also relied  on  documentary  evidence and the  evidence  of  the Investigating  Officer.   Soon  after  the  incident,  First

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Information  Report  was filed by the appellant Jai  Dev  in which  the version of the accused persons was set out and  a case was made out against the villagers.  In fact, it was by resson  of  this F.I.R. that  the  investigation  originally commenced.  Subsequently, when it was discovered that on the scene  of the offence six persons on the complainants’  side had  been  killed and six injured,  information  wag  lodged setting out the contrary version and that led to two  cross- proceedings.    In  one  proceeding  the  members   of   the complainants  party were the accused, whereas in  the  other proceeding  the  appellants and their  companions  were  the accused persons. since the trial ended in the conviction  of the  appellants and their companions, the case made  out  in the  complaint filed by the appellant Jai Dev has been  held to be not proved. At this stage, it would be convenient to refer very  briefly to  the  findings  recorded  by  the  trial  Court  and  the conclusions reached by the.High Court in appeal.  The  trial Court found that the evidence adduced by the accused persons in  support of their case that they had obtained  possession of 496 the   land  before  the  date  of  the  offence,   was   not satisfactory and that the documents and the entries made  in the revenue papers were no more than paper entries and  were not  "as  good as they looked".  According  to  the  learned trial  Judge,  the actual possession of the land  all  along remained  with the complaints’ party Jug Lal and his  compa- nions and that the crop standing at the spot at the time  of the incident had been sown by and belonged to the complaints party.  This finding necessarily meant that the ploughing of the  land  by  the accused persons was  without  any  lawful justification and constituted an act of trespass.  The trial Court  accordingly  held that the accused persons  were  the aggressors  and that the complainants! party in fact  had  a right  of  private  defence.  That is how  it  came  to  the conclusion  that the six accused persons were members of  an unlawful  assembly  and had gone to the  field  in  question armed with deadly weapons with a common object of committing the offences which were charged against them.  Dealing  with the  case  on this basis, the trial Judge did not  think  it necessary  to enquire which of the victims had been  killed by  which  of the particular accused persons.   As  we  have already indicated, he was not satisfied that the charge  had been  proved against Parbhati or against Basti Rama; but  in regard  to  the  remaining five persons, he  held  that  the evidence  conclusively established the charges under s.  148 and  ss. 302 and 326/149.  In dealing with the defence,  the trial  Judge has categorically rejected the defence  version that  Amin  Lal was armed with a pistol and that  after  the said  pistol  fell down from his hands it was picked  up  by Yudhbir Singh.  According to the trial Court, no one on  the complainants,  side was armed with fire-arms, whereas  three persons  on  the side of the accused were armed  with  fire- arms.  Yudhbir Singh had a pistol and the appellants Jai Dev and Hari Singh had rifles. 497 When  the matter was argued before the High Court, the  High Court  was not inclined to accept the finding of  the  trial Court  on the question of possession.  In its judgment,  the High  Court  has referred in detail to  the  disputes  which preceded  the commission of these offences in regard to  the possession of the land.  It appears that this land was given as  a  charitable  gift by the proprietary  body.   ’of  the village  Ahrod  to  one Baba Kanhar Dass  many,  years  ago.

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Thereafter, it continued in the cultivation of Amin Lal, Jug Lal,  Charanji Lal and Duli Chand as tenants.   Kanhar  Dass subsequently sold the entire piece of land to the appellants and  their brothers Basti Ram and Ram Pat on May  30,  1958, for  a sum of Rs.25,000/-. These purchasers belonged to  the village  Kulana and so, the villagers of Ahrod treated  them as  strangers and they were annoyed that the land which  had been  gifted  by the villagers to Kanbar Dass by  way  of  a charitable gift had been sold by him to strangers.  In their resentment,   the   proprietary  body  of  Ahrod   filed   a declaratory  suit challenging the sale-deed soon  after  the sale-deed  was  executed.  When that sent failed,  two  pre- emption suits were filed but they were also dismissed.   The appellants  and  their two brothers then filed  a  suit  for possession.   In  that  suit a decree  was  passed  and  the documentary  evidence  produced in the case  shows  that  in execution  of  the decree possession was  delivered  to  the decree-holders.   It  appears  that  some  persons   offered resentence  to the delivery of possession and 15  bighas  of land  was claimed by the resisters.  Litigation followed  in respect of that and whatever may be the position with regard to  those 15 bighas, &wording to the High Court,  possession of  56 bighas and 6 bighas of land was definitely  delivered over  ’to Basti Ram and his brothers on December  23,  1959. In other words, reversing the finding of the trial Court  on this  point, the High Court came to the conclusion that  the field where the offences 498 took place was in the possession of the appellants and their companions. The High Court has also found that the crop in the field had been  ploughed  by the appellants and their  companions  and that  the  operations which were carried on by them  on  the morning  of September 14. 1960, did not constitute  trespass in  any sense.  On the evidence, the High Court has come  to the conclusion that the villagers who did Dot tolerate  that the strangers should take  possession of the land had  come to  the filed to take possession and they were armed.   It appears  that the number of villagers was much  larger  than the  number  of persons on the side of  the  accused  party, though the weapons carried by the latter included  fire-arms and so, the latter party had superiority, in arms.  The High Court has, therefore, come to the conclusion that the  party of the accused persons was entitled to exercise its right of private  defence.   The  property  of  which  they  were  in possession  was threatened by persons who were  ’armed  with weapons  and so, the right to defend their property  against an assault whih threatened grievous hurt, if not death, gave them the right to use force even the extent of causing death to the assailants.  It is substantially as a result of  this finding that the High Court took the view that Sajjan Singh, Yudhbir Singh and Dhanpat Singh who were responsible for the death  of  the three of the victims were not guilty  of  any offence.  In the circumstances, they were entitled to defend their property against assailants, who threatened them  with death, even by causing their death.  That is how these three accused persons have been acquitted in appeal.  In regard to the  appellants Jai Dev and Hari Singh, the High  Court  has held  that at the time when these two appellants caused  the deaths of Jai Dev and Jai Narain respectively, there was  no apprehension of any danger at all.  499 As soon as Amin Lal was shot dead, all the villagers who had come  to  the  field ran away and there was  no  longer  any justification  whatever  for  using any  force  against  the

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running villagers.  Since at the relevant time the  property had been saved form the trespass and the assailants bad been completely dispersed, the right of private defence ceased to exist and so, the appellants who were proved to have  caused the  two  deaths could not claim protection  either  of  the right  of private defence or could not even plead that  they had  merely exceeded the right of private defence; so,  they are  guilty of the offence of murder under s. 302.  That  is how  the appellants have been convicted of the said  offence and have been ordered to be hanged. The  question which the appeal raises for our decision  thus lies  within  a very narrow compass.  The findings  of  fact recorded by the High Court in favour of the appellants would be  accepted  as binding on the parties for the  purpose  of this appeal.  In other words, we would deal with the case of the  appellants on the basis that initially they  and  their companions  had the right of private defence.   Mr.  Anthony contends  that  having regard to the circu.  mstances  under which  the appellants fired from their rifles, it  would  be erroneous to hold that the right of private defence had come to  an  end,  According to him, allowance must  be  made  in favour  of the appellants in determining the issue.  because it is now found that they were faced with an angry mob whose members were armed with weapons and who appeared  determined to dispossess the appellants and their friends of the  field in  question.  The decision of the point thus raised by  Mr. Anthony would substantially depend upon the scope and effect of the provisions of s. 100 of the Indian Penal Code. Section 100 provides, inter alia, that the right of  private defence of the body extends under the 500 restrictions mentioned in s. 99, to the voluntary causing of death  if  the offence which occasions the exercise  of  the right be an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.   In other words, if the person claiming the  right of  private  defence  has  to face  assailants  who  can  be reasonably  apprehended  to cause grievous hurt to  him,  it would be open to him to defend himself by causing the  death of the assailant. In appreciating the validity of the appellants’ argument, it would   be  necessary  to  recall  the   basic   assumptions underlying  the  law  of  self-defence,  In  a  well-ordered civilised  society  it is generally assumed that  the  State would take care of the persons and properties of  individual citizens  and that normally it is the function of the  State to  afford protection to such persons and their  properties. This,  however, does not mean that a person suddenly  called upon  to  face  an assault must run away  and  thus  protect himself,  He  is entitled to resist the  attack  and  defend himself.   The  same is the position if he has  to  meet  an attack on his property, In other words, where an  individual citizen or his property is faced with a danger and immediate aid  from the State machinery is not readily available,  the individual  citizen is entitled to protect himself  and  his property.   That being so, it is a. necessary  corollary  to the doctrine’ of private defence that the violence which the citizen predefending himself or his property is entitled  to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably prehended and should not  exceed  its legitimate purpose.  The  exercise  of  the right  of  private  defence  must  never  be  vindictive  or malicious. There  can  be no doubt that in judging the  conduct  of a person who proves that he had a right of

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501 private  defence, allowance has necessarily to be  made  for his  feelings  at the relevant time.  Ile is faced  with  an assault  which causes a reasonable apprehension of death  or grievous  hurt and that inevitably creates in his mind  some excitement  and confusion.  At such a moment, the  uppermost feeling  in his mind would be toward off the danger  and  to save himself or his property, and so, he would naturally  be anxious to strike a decisive blow in exercise of his  right. It  is  no doubt true that in striking a decisive  blow,  he must  not  use  more force than  appears  to  be  reasonably necessary.   But in dealing with the question as to  whether more  force is used than is necessary or than was  justified by the prevailing circumstances, it would be inappro, priate to  adopt  tests of detached objectivity which would  be  so natural  in  a  court room, for  instance,  long  after  the incident  has  taken place.  That is why  in  some  judicial decisions  it  has  been observed that  the  means  which  a threatened  person adopts of the force which be uses  should not be weighed in golden scales.  To begin with, the  person exercising a right of private defence must consider  whether the  threat  to  his  person or his  property  is  real  and immediate.  If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right.   In  the exercise of his right, he  must  use  force necessary  for the purpose and he must stop using the  force as  soon  as  the threat has disappeared.  So  long  as  the threat  lasts  and  the  right of  private  defence  can  be legitimately exercised, it would not be fair to require,  as Mayne  has  observed, that "he should modulate  his  defence step  by  step.  according to the attack,  before  there  is reason  to  believe  the attack is over" (1).   The  law  of private  defence does not require that the person  assaulted or  facing an apprehension of an assault must run  away  for safety.  It entitles him to defend himself and law gives him the right to (1) Mayne s Criminal law of Indians 4th Ed.P.23.1 502 secure his victory over his assailant by using the necessary force.   This  necessarily postulates that 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.  If the danger is continuing, the right  is there; if the danger or the apprehension about it has ceased to  exist, there is no longer the right of private  defence, (vide  ss.  102  and 105 of the Indian  Penal  Code).   This position  cannot be and has not been disputed before us  and so, the narrow question which we must proceed to examine  is whether in the light of this legal position, the  appellants could be said, to have had a right of private defence at the time when the appellant Jai Dev fired at the victim Jai  Dev and the appllant Hari Singh fired at the victim Jai Narain. In   dealing  with  this  question,  the  most   significant circumstance against the appellants is that both the victims were at a long distance from appellants when they were  shot dead.   We  will  take the case of  victim  Jai  Dev  first. According  to  Gurbux  Singh (P.   W.  37),  Assistant  Sub- Inspector, the dead body of Jai Dev was found at a  distance of  70  paces  from the place of the  tractor,  but  it  was discovered that it had been dragged from a place at a longer distance  where Jai Dev stood when he was fired dead.   From that  place  to the place where his dead holy  was  actually found there was a trail of blood which unambiguously  showed that  Jai Dev fell down at a more distant place and that  he

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was  dragged nearer the scene of the offence after  he  fell down.   This statement is corroborated by the memo  prepared on  September 14, 1960 (item No. 104).  Blood-stained  earth was  taken from both these spots.  Roughly stated, the  spot where Jai Dev was shot at can be said to be about 300  paces away  from the tractror where the appellant Jai  Dev  stood. It is 503 true  that  Gurbux Singh made no express  reference  to  the trail  of blood in rough site plan which he had prepared  on the  day  of the offence. But iten 8 in the  plan,  we  were told,  does  refer  to  the  dragging  and  that  is  enough corroboration to the evidence of Gurbux Singh.  Besides,  in considering the effect of the omission to mention the  trail of  blood in the rough plan, we cannot ignore the fact  that at that time Gurbux Singh’s mind was really concentrated  on the  F. I. R. received by the Police from the appellant  Jai Dev himself and that means that at that time the  impression in the mind of Gurbux Singh must have been that the deceased Jai  Dev  belonged to the party of the  aggressors  and  so, blood marks caused by the dragging of his body may not  have appeared to him to be of any significance.  However that may be,  the sworn testimony of Gurbux Singh is corroborated  by the memo contemporaneously prepared and it would be idle  to suggest that this evidence should be disbelieved because the rough  site plan prepared by Gurbux Singh does not refer  to the trail of blood. Mr.  Anthony has, however, strongly relied on the  statement of  Juglal (P.  W. 13) who has narrated the incident  as  it took  place,  and  in that connection has  stated  that  the accused Jai Dev then opened fire from his rifle killing  Jai Dev  deceased at the spot.  It is suggested that  the  words "at  the spot" show that the victim Jai Dev was standing  at the spot when the appellant Jai Dev shot at him.  We are not inclined  to  accept  this contention.   What  the  witness obviously  meant was that from the spot where the  appellant Jai  Dev  was  standing, he fired at  the  victim  Jai  Dev. Besides, reading the account given by Juglal as a 504 whole,  it  would not be fair to treat the, words  ’fat  the spot" in that technical way.  Similarly, the. argument  that according  to  Jai  Dev  all the  show,  were  fired  almost simultaneously,  is  also not wellfounded.  When  a  witness gives an account. off on incident like this, he is bound to, refer to one event after another.  That does not mean, that, these  two  appellants  and their  companions  fired  almost simultaneously.  Therefore, we are not.- satisfied that  the evidence of Juglal supports the argument that the victim Jai Dev  was near the scene of the offence when  the,  appellant Jai Dev fired at him, Mr.  Anthony has also relied on the statement of  Chuni  Lal (P.W. 16), in support of the same argument.  But it is clear this witness was obviously making a mistake between the  two documents  P.N.F. and P.N.E. A statement like this which  is the result of confusion cannot legitimately be pressed  into service  for the purpose of showing that victim Jai Dev  was near  about  the  scene of the  offence.   Then  again,  the statement  of Hira Lal (P.W. 5) on which Mr. Anthony  relies shows that in the committing Court he had said that Jai  Dev had  been injured at the spot; but he has added  that,  he,, had  said so because subsequently after the occurrence,,  he saw the dead body of Jai Dev near the scene of the  offence. Therefore, in our opinion, having regard to the evidence  on the  record,  the  High Court was right  in  coming  to  the conclusion  that Jai Dev deceased was standing at  a  fairly

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long distance from the scene of the offence when he was shot at. That  takes  us to the case of the  victim  JaiNarain.   Jai Narain  was  in  fact  not in the  Inamwala  field  at  all. According  to the prosecution, he was on the machan  in  the adjoining  field which he was cultivating and it was  whilst he was in his own field that the appellant Hari Singh  fired at him.  The distance between  505 the appellant and the victim has been found to be about  400 paces.  Now this conclusion is also supported by evidence on the record.  Jai Narain’s mother, Chand Kaur (P.W. 10)  says that she saw her son falling on the ground from the  machan, and that clearly means the machan in the field of which  Jai Narain  was  in possession.  The position of this  field  is shown  in  the rough plan and sketch prepared  by  the  Sub- Inspector  (P.A.J.).  The  evidence of  Hira  Lal  (P.W.  5) supports the same conclusion, and Gurbux Singh swears to the same  fact.   He says that the dead body  of  Jainarain  was found  lying at a distance of more than 400 spaces from  the point where the tractor was said to be standing at the  time of  the occurrence.  That is the effect of the  evidence  of Juglal  (P.  W. 13) also.  Thus, there can be no doubt  that the  victim Jainarain was at a long distance from the  field in question and like the appellant Jai Dev who took a  clean aim.  at the victim Jai Dev who was standing a distance  and shot  him dead, the appellant Hari Singh also took  a  clean aim at the victim Jai Narain who was away from him and  shot him  dead.  That is the conclusion of the High Court and  we see no reason to interfere with it. In  the course of his arguments, Mr. Anthony relied  on  the fact  that  some  of  the  prosecution  witnesses  on  whose evidence the High Court has relied were not accepted by  the trial Court as truthful witnesses, and he contends that  the High Court should not have differed from the appreciation of evidence recorded by the trial Court.  There are two obvious answers to this point.  In the first place it is not  wholly accurate  to  say  that  the  trial  Court  has   completely disbelieved the evidence given by the prosecution witnesses. It may be conceded in favour of Mr. Anthony that in  dealing with  a part of a prosecution case relating to Parbhati  and Basti Ram, the trial Court did not accept the evidence of 506 the   witnesses  which  incriminated  them,  and   in   that connection,  he  has referred to the criticism made  by  the defence against those witnesses and has observed that  there is  force  in that criticism.  But, while  appreciating  the effect  of  the  observations made by  the  trial  Court  in dealing with that particular aspect of the matter, we cannot lose sight of the fact that as to the actual occurrence  the trial  Court, in substance, has believed the major  part  of the  prosecution  evidence  and has  stated  that  the  said evidence  is  quite consistent with  medical  evidence.   In other words, the sequence of events, the part played by  the assailants  as against the specific victims and the rest  of the  prosecution story have, on the whole, been believed  by the  trial Court.  In this connection, we ought to add  that the  trial  Court did not feel called upon to  consider  the individual  case of each one of the accused persons  because it  held  that a charge under s. 149 had been  proved.   But when  the High Court came to a contrary conclusion  on  that point, it became necessary for the High Court to examine the case against each one of the accused persons before it,  and so, it would not be accurate to say that the High Court  has believed  the  witnesses whom the trial court  had  entirely

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disbelieved.   That  is the first answer  to  Mr.  Anthony’s contention.   The  second answer to the said  contention  is that  even if the trial Court had disbelieved the  evidence, it  was open to the High Court, on a reconsideration of  the matter,  to come to a contrary conclusion.  It is true  that in  dealing  with  oral evidence a  Court  of  Appeal  would normally  be  reluctant to differ from the  appreciation  of oral  evidence  by the trial Court,  because  obviously  the trial  Court has the advantage of watching the  demeanor  of the witnesses; but that is not to say that even in a  proper case,   the   Appeal  Court  cannot  interfere   with   such appreciation.   Besides,  the criticism made  by  the  trial Court  is  not so much in relation to the demeanour  of  the witnesses as in  507 regard to their partisan character and the over.  statements which  they made as partisan witnesses are generally apt  to do.  Therefore, we see no justification for contending  that the  finding of the High Court as to the distances at  which the  Victims Jai Dev and Jai Narain were shot at should  not be accepted. Mr. Anthony then argued that the fact that the victims  were at a long distance from the assailants when they were  fired at,  will not really be decisive of the point which  we  are called upon to consider in the present appeal.  He  contends that  if  the assailants were surrounded by a very  big  mob some of whom were armed with deadly weapons and all of  whom were determined to dispossess them at any cost, it was  open to  the appellants and their companions to shoot at the  mob because  they were themselves reasonably apprehensive of  an assault by the mob which would have led at least to grievous hurt,  if  not  death; and he argues that if  three  of  the assailants     who     had    fire-arms     fired     almost simultaneously,that would be within the legitimate  exercise of  the right of private defence and the fact that  somebody was  killed  who was standing at a distance, would  make  no difference in law.  The argument thus presented is no  doubt prima facie attractive; but the assumption of fact on  which it  is based is not justified in the circumstances  of  this case.   The High Court has found that at the time  when  the appellants fired shots from their rifles, the villagers  had already started running away and there was no danger  either to the property or to the bodies of the assailants.  In this connection,  it  is important to remember that  the  defence version that Amin Lal had a pistol had been rejected by both the  courts, so that whereas the crowd that  threatened  the appellants and their friends was larger in number, the weap- ons in the hands of the assailants were far more 508 powerful than the weapons in the hands of the crowd.  Having regard  to the events that took place and the nature of  the assault as, it developed, it is clear that Amin Lal who  was one of the leaders of the villagers was shot dead and  that, according   to  the  evidence,  competely   frightened   the villagers  who began to run away helterskelter.   Sunda  (P. W.4) has described how Amin Lal stepped forward for the help of  Hukma,  but he was fired at from the pistol  by  Yudhbir Singh, and having received a fatal injury on big chest  Amin Lal  fell down dead on the ground. This witness  adds  "’the members of the complainant party feeling frightened  because of  the firing opened by Yudhbir Singh ran in the  direction of  the  village abadi".  Similarly, the statement  of  Mst. Sarian  (P.  W. 12) would seem to show that when the  victim Jai   Dev   was  fired  at,  he  had  run  away.    On   the probabilities,  it  is very easy to believe  that  when  the

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villagers  found that the appellants and their friends  were inclined  to  use  their  firearms,  they  must  have   been frightened,  even  the large number of the  villagers  would have  meant nothing.  The large number  would  have  merely led  to  a  large  number  of  deaths  that  is  about  all. Therefore, as soon as fire-arms were used for the first time killing  Amin Lal on the spot, the villagers must  have  run away.   That is the evidence given by some of the  witnesses and that is the conclusion of the High Court.  It is in  the light of this conclusion that we have to deal with the point raised  by  Mr.  Anthony.   If, at the  time  when  the  two appellants  used  their  rifles  against  their   respective victims  standing at considerable distances from  them,  all the  villagers had run away, there was obviously  no  threat continuing and so, the right of private defence bad  clearly and unambiguously come to an end.  That is why 509 we  think  the  High Court was right  in  holding  that  the appellants were guilty of murder under s. 302 of the  Indian Penal code. That leave two minor question to be considered.  Mr. Anthony has  contended  that the examination of the  appellant  Hari Singh  under  s. 342 of the Code of Criminal  Procedure  has been very defective in regard to the question of distance on which the prosecution strongly relied against him before the High   Court,  and  he  argues  that  this  defect  in   the examination of the appellant Hari Singh really vitiates  the trial.  It is true that in asking him questions, the learned trial  Judge did not put the point of distance  between  him and the victim Jai Narain clearly; but that in our  opinion, cannot by itself necessarily vitiage the trial or affect the conclusion  of the High Court.  In dealing with this  point, we  must have regard to all the questions put by  the  trial Judge  to  the appellant.  Besides, it is not  so  much  the point of distance by itself which goes against the appellant Hari Singh as the conclusion that at the time when he  fired at Jai Narain, the threat had ceased; and if the threat  had ceased  and  there  was  no  justification  for  using   the firearms.,  the appellant would be guilty of murder even  if Jai Narain was not far away from him.  It is unnecessary  to emphasize that it is for the party pleading self-defence  to prove  the circumstances giving rise to the exercise of  the right of self-defence, and this right cannot be said to  be proved  as  soon  as we reach the  conclusion  that  at  the relevant  time there was no threat either to the  person  of the appellant or the person or property of his companions. In  support  of his contention that the failure to  put  the relevant point against the appellant Hari Singh would affect the  final  conclusion of the High Court,  Mr.  Anthony  has relied on a decision 510 of this Court in Hate Singh Bhagat Singh v. State of  Madhya Bharat (1).  In that case, this Court has no doubt  referred to the fact that it was important to put to the accused each material  fact which is intended to be used against him  and to  afford  him a chance of explaining it if  he  can.   But these  observations must be read in the light of  the  other conclusions  reached by this Court in that case.  It  would, we  think, be incorrect to suggest that  these  observations are intended to lay down a general and inexorable rule  that wherever it is found that one of the point used against  the accused person has not been put to him, either the trial  in vitiated or his conviction is rendered bad.  The examination of  the accused person under a. 342 is undoubtedly  intended to  give  him an opportunity to  explain  any  circumstances

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appearing  in the evidence against him.  In  exercising  its powers  under  s. 342, the Court must take care to  put  all relevant  circumstances  appearing in the  evidence  to  the accused person.  It would not be enough to put a few general and  broad questions to the accused, for by adopting such  a course the accused may not get opportunity of explaining all the relevant circumstances.  On the other hand, it would not be  fair or right that the Court should put to  the  accused person  detailed  questions which may amount  to  his  cross examination.   The ultimate test in determining  whether  or not  the amused has been fairly examined under a. 342  would be  to enquire whether, having regard to all  the  questions put to him, he did get an opportunity to say what he  wanted to  say in respect of prosecution case against him.   If  it appears  that  the  examination of the  accused  person  was defective  and thereby a prejudice has been caused  to  him, that  would no doubt be a serious infirmity.  It is  obvious that  no  general  rule can be laid down in  regard  to  the manner in which (1)  A. I. R. 1953 S. C. 468.  511 the accused person should be examined under s. 342.  Broadly stated.  however,  the  true position appears   to  be  that passion for brevity which may be content ’ with asking a few omnibus  general questions is as much inconsistent with  the requirements of s. 342 as anxiety for thoroughness which may dictate  an  unduly detailed and large number  of  questions which  may  amount to the cross-examination of  the  accused person.   Besides, in the present case. as we  have  already shown,  failure  to put the specific point  of  distance  is really not very material. The  last argument which Mr. Anthony has urged before us  is that the prosecution should have examined a ballistic expert in  this  case  and since no expert has  been  examined,  it cannot be said that the projection has proved its case  that the  appellants  caused  the deaths of the  two  victims  by shooting from the rifles which they carried.  In support  of this  argument, Mr. Anthony has referred us to the  decision of  this Court in Mohinder Singh v. The State (1).  In  that case. it has been observed by this Court that it has  always been  considered  to be duty of the prosecution, in  a  case where death is due to injuries or wounds caused by a  lethal weapon, to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon  with  which  and in the manner  in  which  they  are alleged  to  have  been  caused.  We do  not  see  bow  this principle can be invoked by Mr. Anthony in the present case. The  rifles  which the appellants are alleged to  have  used have  not  been recovered and so, there was no  occasion  to examine any expert in respect of the injuries caused to  the two victims by the appellants.  What Mr. Anthony suggests is that an expert should have been examined for the purpose  of determining whether any of the injuries found on the persons of the several victims could (1)  A. I. R. 1953 S. C. 415. 512 have been inflicted by the revolver which had been recovered in  this  case.  Now, the story about the recovery  of  this revolver  is  very interesting.  According to  the  defence, Amin Lal was carrying a revolver and when he was hit with  a lathi by Sajjan Singh, the revolver fell down from his hands and  Yudhbir  Singh picked it up and fired it at  Amin  Lal. Now this revolver was carried away by Yudhbir Singh to  his house  and  he  says that he produced the  same  before  the Polio’) Investigating Officer.  On the other hand, according

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to  Gurbux Singh, it was the accused Sajjan Singh who  after his  arrest  produced  the pistol and  two  live  cartridges before him.  It would thus appear that the revolver had been produced  by  one of the accused persons on  the  allegation that it was carried by Amin Lal and had been used by Yudhbir Singh  in  self-defence after it had fallen down  from  Amin Lal’s  hands.  It has not been the prosecution case that  it is  this revolver which had been used by Yudhbir Singh.   It may  well  be  that  the  revolver  has  been   deliberately surrendered   by   the  accused  in   order   to   introduce complications  in the case.  We think, in such a case it  is difficult to understand for what purpose the prosecution was expected to examine the expert.  Therefore, in our  opinion, the decision in the case of Mohinder Singh v. The State  (1) has no application to the case before us. In the result, we agree with the High Court in holding  that the two appellants are guilty of murder under s. 302. The only question which now remains to be considered is  one of  sentence.   Mr.  Bindra  for the  State  has  left  this question to us since, presumably, he did not feel  justified in pressing for the imposition of the sentence  of  death. We have carefully (1) A. I. R. 1953 S. C. 415.  513 considered  all the facts leading to the commission of  this offence  and we are not inclined to accept the view  of  the High  Court that the circumstances of this case require  the imposition of the maximum penalty on the two offenders.   On the question of sentence, it would be relevant to take  into account  the  background  of the incident,  the  nature  and extent of the threat held out by the crowd of villagers. the excitement  which must have been caused at the time  of  the incident,  and.  so, though we have felt  no  difficulty  in agreeing  with  the decision of the High Court that  at  the time  when the two appellants fired shots from their  rifles the threat had ceased to exist, it would not be unreasonable to take into account the fact that, the excitement in  their minds   may  have  continued,  and  that,  in  the   special circumstances   of  this  case,  may  be  regarded   as   an extenuating  circumstance.   We, therefore, think  that  the ends  of  justice  would be met if  the  sentence  of  death imposed  on the two appellants is set aside and instead,  an order  is  passed directing that they should  suffer  impri- sonment for life.  Accordingly, we confirm the conviction of the  appellants  under s. 302 and convert  the  sentence  of death. imposed on them into one of imprisonment, for life. Conviction confirmed.  Sentence reduced. 514