P L D 1959 (W (PLP)

4. The complainant party are Sayals while the accused are Jats of village Ghariala. They irrigated their fields from a common channel on warabandi basis, regulated privately by a timekeeper but not officially sanctioned by the Revenue Authorities. It is alleged that on the day of occurrence, vie., 18th November 1957, the complainant party was having the turn of water which was still running when the accused came and demanded the diversion of water to their fields claiming that the turn of the complainants' had run out. There was an altercation followed by exchange of blows, in which, from the side of the com plainants, Pathana deceased was injured fatally on the head with a blunt weapon and Ghulam Rasool received grievous hurt besides other injuries. Ghulam Hussain, a second son of Pathana, and Allah Bakhsh, his son‑in‑law, received simple injuries. From the side of the accused each of the three appellants sustained simple blunt weapon injuries.

5. The appellants claimed the right of self‑defence on the plea that they were attacked by the opposite party in an attempt to divert the flow of water from their fields to their own at a time when they (the appellants) were making use of it in their own legitimate and rightful turn.

6. The crucial question which arose in the case was as to what was the origin of this fight and which party was the aggressor. On this part o f the case the learned Additional Sessions Judge has given the following finding in para. 32 of his judgment which may usefully be reproduced in his own words :‑ " This occurrence admittedly took place on the dispute over time about the termination of the turn of the complainant party and the commencement of the turn by the accused party . . . . . . . The turn of water' of the complainant party terminated at 3‑15 p.m. and that of the accused party commenced at 3‑15 p.m. on the day of the occurrence. The accused party rightfully claimed water at 3‑15 p.m. and it was refused by the complainant party ". Again in sub‑para. 7 of the same para. which is repeated, he added :‑ "The complainant party started mischief by trying to remove clay for the nakka of the accused party ". 7. 1t would be just as well in this connection to refer to certain other findings of facts given by the learned Additional Sessions Judge which can safely be supported on a review of the evidence and the circumstances of this occurrence as a whole. These findings are :‑ (1) There was no previous enmity between the parties. (2) A perusal of the eyeseen (ocular) account of the occurrence given by the three eyewitnesses would show that they are unsatisfactory about (a) a claim of the complainant party about time and turn of water ; (b) the allocation of blows, (e) the injuries to the wounded accused, and (d) what actually took place before accused party commenced irrigation of their fields.

8. The learned Additional Sessions Judge has, however, proceeded to convict the appellants in spite of his findings mentioned above, on his view, firstly, that the appellants had participated in the fight, as they bore injuries on their persons as the hall‑mark of their guilt and, secondly, it was the appellants' party that had first assaulted the complainant party.

9. It is true that in riot cases, injuries on the accused persons furnish a very good indication of their having been concerned in the occurrence, but it seems to me that very often this circumstance is given a very wide effect in the determination of the guilt of accused persons, leading sometimes to a grave miscarriage of justice. In cases of cross‑riots involv ing several persons on both sides, the prosecution in these parts as a matter of common habit and practice tries unfortu nately to spread its net as widely as possible, roping in the innocent with the guilty and in this context the injuries on ,the accused persons do assume a significant character but only a limited extent. The injuries on an accused persons tallying with the period of a fight unless otherwise explained, certainly point out to his presence in the fight, but they cannot be treated as conclusive of his guilt to prove his active partici pation and much less his aggression. An onlooker in a fight and sometimes even an interceder happens to sustain injuries, and sometimes as often happens a person may bear the brunt of the attack from the opposite side without himself having raised his little finger to injure any one. The weight to be given to the injuries, therefore, as the badge of guilt, will despend not on the injuries alone, but on the entire facts and the circumstances of the case as disclosed by evidence. e Where the prosecution evidence is thoroughly unworthy of credence, injuries of an accused person by themselves will prove nothing beyond his presence or at the worst his participation in the fight but not necessarily criminal. In our present system of criminal jurisprudence, the prosecution must prove its case and when the prosecution fails to prove it, there is hardly anything for the accused to answer and to convict a person merely because of his injuries will mean assuming very wrongly that injuries irrevocably speak of his guilt and are inconsistent with any hypothesis of his innocence. This obviously offends against the cardinal principles of criminal justice, as practised at present in this country.

10. In regard to the case in hand the injuries on the appellants do not prove either that they were the aggressors or that all of them had acted in concert in giving injuries to each one of the persons on the opposite side. The acquitted accused were also directly charge by the injured P. Ws. for causing injuries to Pathana deceased and the other injured P. Ws. and in my view it is not safe to hold that because the acquitted accused came out of this fight unscathed, they did not cause some or all of the injuries to the opposite side as attributed to them by the witnesses. It is again in my judgment a fallacy to lay down widely as a rule that in riot cases, absence of injuries on accused persons is a circumstance conclusive of their innocence. Absence or non‑absence of injuries is a relevant I circumstance to be considered in the context of the entire evidence and circumstances of a particular case. I consider that in the circumstances of this case, it is mere imagination to hold as a matter of positive deduction from the injuries on the persons of the appellants that they were the aggressors and that they acted in unison in all the acts of beating given to the persons on the other side.

11. The trial Judge has rightly held on evidence in this case that the complainant party had exhausted their turn of water and started doing mischief by trying to remove clay from the nakka of the accused persons when the latter com menced irrigating their fields. On this finding the complainants were definitely committing the offence of mischief and being armed with blunt weapons which they, had at some stage used on the injured appellants, would show that the mischief was being committed in such circumstances as to raise a reasonable apprehension in the minds of the appellants that death or grievous hurt will be the consequence if the mischief is not stopped and the right of private defence not exercised. The act of the appellants would thus be protected under section 103 Fourthly of the Penal Code which reads as follows :‑ " The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong‑doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the description hereinafter enumerated, namely :‑ Fourthly. ‑Theft, mischief or house‑trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised ".

12. The Injuries on the person of Pathana were simple except No. 1 on the head which caused intracranial haemorrage with a haematoma compressing the brain. These injuries could not have been caused by the assailants with the intention to cause Pathana's death nor with the intention of causing fatal injury as would be sufficient in the ordinary course of nature to cause death. The guilty intention or knowledge required for bringing the case within culpable homicide amounting to murder under section 300 P. P. C. seems to be lacking in this case and as such even if the attendant circumstances of mischief committed by the complainant party does not bring the action of the appellants wholly under the immunity of section 103, P. P. C., they were completely justified in causing any harm short of death which they intended to cause and which they in fact caused, without meaning to bring about his death. Death of Pathana was certainly beyond the contemplation of any one of them. The grievous hurt to Ghulam Hussain and simple hurts to Ghulam Rasool and Allah Bakhsh as also the grievous injuries to Pathana would in this view be fully protected by the provisions of section 104, P. P. C. which reads as follows:‑ " If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong‑doer of any harm other than death ". Mr. Sidhwa, learned counsel for the State, has referred me to the provisions of section 99 P. P. C. and has urged that the harm caused in this case is out of all proportion to they requirements of the case. While it is true that the right of self‑defence in no case extends to the inflicting of more harm than is necessary for the purpose of defence, but the Court have always viewed with indulgence the act of a person who in the heat of the moment, under a strong feeling of self‑preservation working on him, he pursues his defence a little further than is absolutely necessary. As held time and again, it i impossible for any individual for the purposes of his defence to measure in golden scales the exact amount of force which he should use in such a situation, nor can he be expected to modulate his defence step by step.

13. On the facts of this case as found by the trial Court the appellants were three pitted against four on the opposite side all armed with blunt weapons. The com plainants started mischief and not only threatened violence but resorted to violence and thus created a reasonable appre hension in the minds of the appellants that they were faced with serious and grave harm to their own persons. In the circumstances thus created it cannot be said that the appel lants had exceeded the right of self‑defence, as held by the trial Court, in causing injuries to complainant party which they succeeded in causing.

14. There is another aspect of the case which merits close consideration, not heeded to by the trial Judge. The whole affair, as held by him, was sudden and unpremeditated, nor did it develop in a manner suggesting that the appellants gathered a common intention speedily on the spot to be burdened with joint responsibility for the acts of the co‑accused. Section 34, P. P. C. has not been specifically applied, or referred to by the trial Judge, although it appears from the judgment that in convicting the appellants he was thinking in terms of the same. Conviction can be recorded by invoking the aid o section 34, P. P. C. even where a charge under section 149, P. P. C. has failed, provided the facts attract the application of that section, but how in this case the learned Sessions Judge has proceeded to convict each of the three appellants sub stantively and individually under sections 304 (1), 325 and 323, P. P. C. without the application of section 34, P. P. C. is not understandable to me.

15. Whether there was common intention or not is in the ultimate analysis, a question of fact to be determined; on the circumstances of each case. But before a person can be convicted by the aid of section 34, P. P. C., it must be proved that the act of the co‑accused for which he is to answer was committed in furtherance of their common intention that is to say their minds were running together in executing the same, although it fell to the lot of one or other of them directly to execute it. In a sudden fight as in this case, unity of mind and unity of action is not easily con ceivable unless the circumstances cogently point to the same, I find it hard to hold on the facts of this case that the appellants acted in furtherance of their common intention in causing injuries to each one of the injured persons on the other side.

16. Common intention being eliminated, to find on the evidence in this case with an amount of judicial assurance as required by law as to who caused what injury to whom, is to my mind impossible. As the evidence is hopelessly discrepant on this subject, the case must unfortunately fail on this score also. As a result, I accept this appeal, set aside the order of the trial Judge and acquit the appellants. They shall be set at liberty forthwith. K. B. A./A. H. Appeal accepted.