Kuldip Singh, J.— Bhagwan Swaroop was charged under Section 302 IPC for the murder of Man Singh and under Section 307 IPC for an attempt to murder Shahid. He was further charged under Section 451 IPC for committing trespass and also under Section 25-A of the Arms Act. Ram Swaroop, father of Bhagwan Swaroop, was charged under Sections 109/302, 451 IPC and 29 of the Arms Act. Ram Swaroop was acquitted of all the charges by the trial court. Bhagwan Swaroop was, however, convicted under Section 302 IPC and was sentenced to imprisonment for life. He was acquitted of the other two charges. The appeal filed by Bhagwan Swaroop was dismissed by the High Court. The High Court allowed the State appeal and further convicted Bhagwan Swaroop under Section 307 IPC and Section 25-A Arms Act. He was sentenced to five years' and one year rigorous imprisonment respectively for the said offences. This appeal before us by way of special leave is by Bhagwan Swaroop against his conviction and sentence on the three counts.
2. Deceased Man Singh was the son of Shahjor Singh and brother of Babu Singh. They were living in the house owned by Ram Swaroop and his sons. There was dispute between the parties regarding a piece of land which according to the accused, the complainant party was forcibly occupying. A notice had been served upon Shahjor Singh by the accused to vacate the said encroachment. According to the prosecution on May 11, 1969 at about 2.45 p.m accused Ram Swaroop had an altercation with Babu Singh at a place called Gauri and thereafter he rushed towards the house of Shahjor Singh and on reaching there, abused the complainant party and started dismantling the tin shed on the disputed land. Shahjor Singh sent his son Babu Singh to the police station to lodge a report. Meanwhile Man Singh, deceased, came at the spot and gave a push to Ram Swaroop who as a result fell down. He got up immediately and shouted for his son Bhagwan Swaroop and asked him to bring the rifle and kill the complainant party. Bhagwan Swaroop rushed to his house, brought a gun and fired a shot hitting Man Singh. Bhagwan Swaroop fired the second shot which hit Shahid. Man Singh fell down and thereafter complainant Shahjor Singh took out a lathi and gave beating to Ram Swaroop. Man Singh succumbed to the gunshot injury.
3. Both the accused denied the commission of the crime. Accused Ram Swaroop stated in his examination as under:
“I found Babu Singh gambling in my garden. I asked him as to why he is doing so in the garden, he started abusing me. I slapped him. His father came there, both of them abused me and then left the place. I told him that I will make the report of the incident to the police station. When I reached near the house of Shahjor Singh on my way to the police station, he along with his sons caught me and started beating me with lathis. Shahjor Singh brought an axe. When he was about to use his axe on me, there was gun fire.”
4. Accused Bhagwan Swaroop took the plea of alibi which has been rejected by both the courts below. We are of the view that the said plea was rightly rejected.
5. The trial court did not believe the prosecution version in toto. The trial court found that the “prosecution tried to indulge in exaggeration, misrepresentation and at times suppression of facts without any meaning”. The trial court further concluded as under:
“The defence version that Babu Singh was gambling along with others in the garden of the accused Ram Swaroop appears correct. Ram Swaroop went there and questioned Babu Singh. There was altercation and use of hot words. Admittedly Shahjor Singh PW 1 came there and Babu Singh accompanied him back to his house. Ram Swaroop further stated in his examination that he gave one slap to Babu Singh. Babu Singh as PW 9 stated that he was given three or four slaps by Ram Swaroop. Thus the fact that Babu Singh was slapped, stands established in the case.”
6. The part of the prosecution story, that the accused Ram Swaroop rushed towards the house of Shahjor Singh and reached there before the arrival of Shahjor Singh, was also disbelieved by the trial court.
7. Regarding the actual occurrence, it is not disputed that Ram Swaroop was given four simple injuries by the complainant. The prosecution case is that the injuries were given after the gunshot had been fired whereas the defence version is that the gunshot was fired while lathi injuries were being given to Ram Swaroop. Trial court considered the statements of Banne Khan PW 6, Shahid PW 8, Sarfuddin PW 11, Safaat Ahmad DW 1 and Hamid Ahmad DW 3 and came to the following conclusion:
“Anyway this one fact is clear from the evidence of these eye-witnesses that Ram Swaroop was put to beating, then there was gun fire and Bhagwan Swaroop was seen on the spot.”
The trial court on appreciation of the evidence produced by the prosecution and the complainants came to the conclusion that the following facts stood established from the evidence:
“Ram Swaroop came near the house of Shahjor Singh. There was exchange of abuses between Shahjor Singh and Ram Swaroop. Ram Swaroop tried to remove the tin shed of gonda. He was pushed aside by Man Singh and then put to beating by lathis.”
8. It was under these circumstances that Ram Swaroop asked his son to fire the gunshot. The question for our consideration is whether on the facts of this case the appellant can claim right of private defence. The learned trial court came to the conclusion that since minor injuries were caused by the lathi there was no basis for entertaining a reasonable apprehension that Ram Swaroop would be killed or hurt grievously and as such the plea of self-defence was rejected. The High Court upheld the finding of the trial court in the following words:
“No doubt the respondent Ram Swaroop had injuries on his person. There were two simple injuries caused by hard and blunt object and the other two could be caused by fall for which there is definite prosecution evidence that the respondent Ram Swaroop was pushed and he fell down. These injuries on him could not give rise to any apprehension of either grievous hurt or death.”
9. We do not agree with the courts below. It is established on the record that Ram Swaroop was being given lathi blows by the complainant party and it was at that time that gunshot was fired by Bhagwan Swaroop to save his father from further blows. A lathi is capable of causing a simple as well as a fatal injury. Whether in fact the injuries actually caused were simple or grievous is of no consequence. It is the scenario of a father being given lathi blows which has to be kept in mind and we are of the view that in such a situation a son could reasonably apprehend danger to the life of his father and his firing a gunshot at that point of time in defence of his father is justified. We, therefore, set aside the finding of the courts below on this point and hold that Bhagwan Swaroop fired the gunshot to defend the person of his father.
10. The trial court on the basis of the evidence on the record, including that of Dr Mukherjee PW 5, came to the conclusion that only one shot was fired by Bhagwan Swaroop. According to the trial court Shahid was accidentally hit by the pellets spread by the gunshot. It was on these findings that the trial court acquitted Bhagwan Swaroop of the charge under Section 307 IPC. We agree with the trial court and hold that the High Court was not justified in reversing the same. The High Court further grossly erred in setting aside the acquittal of Bhagwan Swaroop under Section 25-A of the Arms Act. Using the licensed gun of his father under the circumstances of this case cannot be considered possessing an arm without a licence. We agree with the reasoning and findings of the trial court and hold that High Court was not justified in setting aside the acquittal of Bhagwan Swaroop under the Arms Act.
11. For the reasons given above we allow the appeal, set aside the conviction of appellant Bhagwan Swaroop under Sections 302 IPC, 307 IPC and 25 Arms Act and acquit him on all these counts. He is already on bail. His bail bonds are discharged.