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Criminal Appeal No. 101 of 1979, decided on‑7th January, 1980,

‑‑S. 304, Part II read with S. 100‑Private defence, right of‑Scene of occurrence admittedly in field of accused‑‑Accused receiving a number of injuries with sharp side of hatchet and deceased alone could have caused such injuries but such fact suppressed by com plainant side‑Version of accused that he used hatchet in his right of private defence not appearing completely untrue‑Fact that accused caused provocation to complainant party by taking their women into bushy growth with evil intention, held, not of great significance in circumstances of case‑Accused, held further, rightly entertained apprehension that at least grievous hurt would be caused to him and therefore, had right of private defence up to extent of even causing death, in circumstances‑Conviction and sentence set aside.‑(Private defence, right of).

This is an appeal by Mohammad against his conviction under sec tion 304 (II) of P. P. C. sentencing him to 10 years' R.I. and directing him to pay compensation of Rs. 5.000 to heirs of deceased Mohammad Rahim by judgment of Sessions Judge, Badeen dated 28th March 1979. The appellant had been tried alongwith co‑accused Ahmed and Raboo under section 302/34, P.P,C. Ahmed and Raboo were acquitted.

The relevant facts are that P.W. 6 Ladho filed the F.I.R. Exh. 15, dated 16th May 1973 at I p.m. at Police Station, Matli, District Hyderabad alleg ing appellant Mohammad was reported, by P.W. 3, Mohammad, to have gone into Khabar bushes alongwith one Mst. Juli who was the wife of nephew of complainant Ladho. Ladho called for his sons Uris and Mohammad Rahim and they went to Khabar Bushes where they saw Mohammad and Juli sitting together. Mohammad started running in naked condition but he was chased by Mohammad Rahim and Uris. He was chased by Mohammad Rahim who gave abuses to Mohammad, meanwhile, accused Ahmed Udhejo emerged from bushes having a hatchet. Mohammad was also armed with hatchet and he prepared to fight. Meanwhile, AIlahdino and Waheedo Soomro came running. Mohammad inflicted a forceful hatchet blow upon head of Mohammad Rahim who fell down. Upon this Uris who was armed with hatchet gave sharp sided hatchet blows to Mohammad. Accused Ahmed gave sharp sided hatchet blows on back. Meanwhile, accused Raboo came running and he gave complainant Ladho sharp sided hatchet blows on head. The investigation was conducted by S.H.O. Khurshid P.W. 10 who went to the place of occurrence and prepared the memo. Exh. 18, where he found that it was in Survey No. 7 Deh Udhejani Taluka Math. The dead body of deceased ‑Mohammad Rahim was found there lying. There was one injury on his head with a big cut and brain had come out. He also had one sharp sided hatchet injury on the arm. Injured Uris P. W. I was also lying there. He had two injuries by sharp side of hatchet on his forehead and spine on the back. Accused/appellant Mohammad was also lying there. His injuries were poted to be seven, six by sharp‑sided hatchet on different parts of body including left ear, left arm, right hand and left knee and one injury on the head caused with lathi. Lower parts of his body was found naked. Acquitted accused Ahmed was also lying there having two injuries. Near the place of incident there were dense Jhari trees with sitting marks of persons and small pubic hair of human being recently razed. The accused Mohammad and Ahmed were taken into custody and sent to Hospital. The body of deceased Mohammad Rahim was sent for post‑mortem and injured Uris was sent for medical treatment. Accused Raboo was arrested later on at 15‑30 hours from his village. Blood‑stained hatchets and lathis were lying at the Kvardat which were blood‑stained and which were secured under Mashirnama Exh. 18. The prosecution has proved its case by examining P. Ws.‑ P. W. 1 Uris who is son of the complainant and had received two injuries he had substantially supported the statement of his father Ladho made in the F. I. R. He stated that they saw accused Mohammad with Mst. Juli sitting naked and on seeing them Mohammad came out and his brother deceased Mohammad Rahim challenged him and appellant struck him a hatchet blow. Mohammad Rahim fell down and this witness Uris then struck appellant Mohammad with lath in self defence, whereupon, accused Ahmed and Raboo who were hiding near by came out and they gave him hatchet blow and Ladho was also given blows. He has denied having seen any one causing hatchet blows of sharp side to accused Mohammad. P. W. 2 Allah Dono who is the son of Mohammad Rahim deceased has stated that he saw accused Mohammad striking his father Mohammad Rahim with sharp side of hatchet. He also admitted that his party might have given blows to accused party in self defence. He admitted that he brought to Uris and Mohammad ; And Mohammad Rahim had hatchet and Uris had lath in their hands. To this extent the version of Uris is supported who had stated that he used lathi against appellant. Mohammad, He stated that he had not seen anyone causing injuries to the appellant/accused Mohammad. P. W. 3 Mohammad son of Arab had conveyed the original information of accused Mohammad giving signal to Mst. Juli and conveyed the information to P. W. Ladho and Allah Dino. P.W. 4. Afst. Juli stated that she was called by Mohammad appellant by signal and when she reached near him her relations also reached there and she therefore went away. Complainant Ladho P. W. 6 reiterated the contents of the F. I. R. and stated that he had seen Mohammad and Juli sitting naked and on seeing them Mohammad came out with hatchet and told them to go away or else he will kill them. He stated that Mohammad accused gave hatchet blows to Mohammad Rahim who fell down and Ahmed and Raboo who were hiding in the trees came out and all the accused were armed with hatchets. He stated that Ahmed and Raboo gave him hatchet blows. He did not disclose in his examination in chief as to how Mohammad appellant receiv ed the hatchet and lath injuries. He admitted in cross‑examination, that they knew about the connection of Juli with appellant Mohammad 12 months earlier.. He admitted that out of Mohammad Rahim deceased and injured Uris one had hatchet and other had lath . This statement of the complainant is at variance with his F.I.R. where he had stated that Uris who was armed with hatchet‑ gave sharp. sided .hatchet blows to Mohammad. However, he has not stuck to the version in the F.I.R. and P.W. Uris has only accepted the responsibility of causing one lathiinjury to appellant Mohammad and since P. W. Allahdino who is the son of deceased Mohammad Rahim has stated that Mohammad Rahim had hatchet, therefore, the position that emerges is that two of the complaining party were armed and they were Mohammad Rahim deceased having a hatchet and Uris having a lathi. Complainant Ladho has denied in his deposition that he had seen with his own eyes that appellant Mohammad received any blows. Thus he bad gone back upon his .statement in the F.I.R. which he had lodged and stated that Uris has caused hatchet blows to Mohammad appellant after Mohammad inflicted a blow upon Mohammad Rahim.

The learned Sessions Judge has not believed in toto the prosecution witnesses as he has considered them as interested witnesses and he has come to the conclusion they have tried to suppress the injuries caused by the complainant party upon appellant Mohammad. He has come to the conclusion that the incident had taken place in the land of appellant Mohammad himself and has also held that the appellant had a right of private defence but he has thereafter stated that there are limitations to the exercise of right of private defence and that Mohammad appellant had invited the trouble himself by causing provocation to complainant party by calling Juli in Khabar trees and he has thereafter held that because Mohammad appellant had not mentioned that Mohammad Rahim had hatchet and that he had struck him first, therefore, he has inferred that appellant Mohammad must have caused injuries to Mohammad Rahim before he was caused any injury and then he concluded that the appellant Mohammad caused the very first blow to Mohammad Rahim, and therefore, he had no right of private defence.

I, however, find that from the deposition of the P. Ws. the only position that emerges is that injured Uris had a lathi while deceased Mohammad Rahim had the hatchet and since appellant Mohammad has a number of injuries with sharp side of hatchet on different parts of the: body, therefore, deceased Mohammad Rahim alone could have caused those, injuries as there was no one else in the complaining party who was alleged to be carrying any hatchet and similarly the only one blunt injury upon the head could have been caused by Uris as admitted by him. Since, the hatchet injuries upon different parts of the body of appellant Mohammad have been suppressed by the complaining side and the appellant states that he used the hatchet in his right of private defence and since the scene of occurrence is admittedly in field of the appellant therefore the version of the appellant does not seem to be completely untrue. Another important factor is that the injury upon the head of Mohammad Rahim deceased was such that thereafter Mohammad Rahim could not use any weapon or cause any injury as his brain matter had come out. Therefore, if Mohammad Rahim who was armed with hatchet had used his hatchet upon Mohammad then it must have been before, appellant Mohammad had caused the fatal blow upon Mohammad Rahim and it would therefore seem clear that Mohammad Rahim has used hatchet upon appellant Mohammad, and since, hatchet is a deadly. weapon, therefore, the appellant Mohammad could have the apprehension that at least grievous hurt would be caused to him, and therefore, he had the right of .private defence up to the extent of even causing death as provided in section 100, P.P.C. The fact that he was caused seven injuries gave him a further right of private defence. The fact that appellant Mohammad had caused provocation to the complaining party by taking their woman into Khabar bushes‑ is not of great significance in the circumstances of this case where the. appellant has suffered seven injuries which have not been explained by the prosecution except one injury by lathi on his head which is owned by Uris as having been inflicted in self‑defence.

In these, circumstances, I am of the view that there was hardly any occasion to hold that appellant Mohammad had exceeded in the right of private defence. His conviction is therefore set aside and he is ordered to be released if not required in any other case. I may note here that accused Ahmed and Raboo were acquitted and there was no acquittal appeal or revision against that judgment. Mr. Manzoor Hussain Advocate appears for the State.

Appeal allowed.

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