RAM NATH Vs. STATE OF U P

JUDGEMENT

(1.) S. R. Bhargava, J. At the time of initial hearing of this revision for admission, order of issue of notice to opposite party No; 2 was passed and the revision was ordered to be listed for admission with specific condition that the revision may be heard and decided at admission stage. Notice was issued to the opposite party No. 2. It could not be served because he has now became a teacher in Calcutta. Opposite Party No. 2 lodged a complaint against the revisionist. On the basis of that complaint, revisionists were convicted and sentenced by the Magistrate. Lower appellate court dismissed the appeal. It is stated by the counsel for the revisionists that the Calcutta address of opposite party No. 2 is not known to the revisionist. He further stated that in lower appellate court opposite party No. 2 did not attend the court. In these circumstances I think that this revision can be disposed of without further notice

(2.) PROSECUTION case against the revisionists was that on 20. 11. 85 at about 11 a. m. they raided the field of complainant Ram Raj and assaulted the complainant and also Nand Lal and Jiv Nath who came to his rescue. Defence raised by the revisionist was of self defence. The two lower courts noted injures of both sides. Lower appellate court specifically noted that Ram Baran revisionist had one lacerated wound 2 cm. x 1/2 cm x 1/4 cm on the middle part of scalp an abrasion 1/2 cm x 1/2 cm. on the back of the left thumb and a contusion 12 cm x 2 cm obliquely placed on the right side of back. Then the lower appellate court noted that revisionist Ram Nath had one lacerated wound. 6 cm x 1/2 cm x scalp deep on the left side of scalp and abrasion with traumatic swelling 4 cm x 3 cm on the left side of fore-head another lacerated wound 4 cm x 1/2 cm x 1/4 cm. on the middle side of the left index finger. These injures could not be called superficial. There was no evidence before the two lower counts that these injures were fabricated or self inflicted. Still the lower appellate court threw out this case of self defence pleaded by the revisionist with the observations it would thus appear that where as the appellant side had six injuries, which were simple the complainant side received 15 injuries including fracture. The lower appellate court emphasized that the number of injuries received by the complainant side was much larger as compared to the injures received by the revisionist. The learned lower appellate court further emphasized that three persons of the complainant side received injures, whereas only two from the side of' the revisionists were injured. I am afraid that the approach of the learned appellate court towards the case of self defence was legally erroneous. Once exchange of blows starts blows cannot be measured in golden scale. Evidence clearly shows that there was exchange of blows. The number of injures received on either side or the number of injured on either side then pale into in significance. Lacerated wound on the scalp would not be called superficial. It is evident that in the incident in question revisionists also suffered injures which could be only as result of exchange of blows. On behalf of the complainant no explanation was offered for the injures on the side of the revisionist. In these circumstances, commencement of the incident or exchange of blows is shrouded in mystry. For proving self defence accused need not prove its case beyond reasonable doubts. Even if the accused convinced the court that theory of self defence is probable, A-36 accused is entitled to acquittal on ground of self defence. When there is no explanation for injuries on the side of the accused and it is held that injures were received in incident accused are entitled to benefit of self defence.