The determination of the offense under Section 324 or 323 IPC depends primarily on the nature of the weapon used, not the injury caused.

JUDGMENT :

M. Hidayatullah, J.

1. The two Appellants, Sukhnath Singh and Shamsher Singh were prosecuted in the Court of Session, Sultanpur Under Section 307 read with Section 34 of the IPC, but were convicted each Under Sections 324 and 323, IPC and sentenced to rigorous imprisonment for two years and one year respectively. Their appeal to the High Court of Allahabad was dismissed. They now appeal to this Court by special leave.

2. The prosecution was in respect of an offence said to have been committed on 15-7-1961 at 8 A.M. in what is described as plot No. 512 of Jamooria, Police Station Musafirkhana, District Sultanpur. Originally one other person, by name, Shambhoo Singh was also prosecuted, but he was acquitted in the Court of Session. The Appellants and Shambhoo Singh are three brothers. They are said to have assaulted Kalapnath Singh (PW 1) and his nephew Rajnarain Singh (PW 2) in the field with lathies. The evidence shows that Kalapnath Singh received three injuries of which two were on the head and one on the fore arm. Kalapnath Singh bled from his ear which indicated that he had received some internal injury as well. Rajnarain Singh received two injuries, one on the head and the other on the shoulder. Kalapnath Singh became unconscious and it seems he remained so for some time. In one place Kalapnath Singh says that he was unconscious for 12 days and in another that he was unconscious for two days. It is obvious that he was improving the case in the Court of Session, but it is equally obvious that the injury was serious.

3. The case stands proved by the evidence of these two victims of the assault. There were other witnesses who had arrived on the scene and some of them had them selves been assaulted but they were not examined on the plea that they had turned hostile. There is nothing to show whit their statement would have been if they had been called. They were just dropped from the list of witnesses. The case, therefore, rests upon the testimony of the two victims that they were injured goes without saying because they were immediately examined by the doctor and their first information report was also made at 11 A.M. within three hours of the occurrence. The names of these assailants were mentioned in it including that of Shambhoo Singh who, however, received benefit of the doubt in the Court of Session.

4. In this appeal it is contended that there was a right of private defence which had not been noticed by the Court of Session and the High Court and even if it was exceeded the punishment which is meted out cannot be so severe as two years in the aggregate. It is also contended that the offence was not one Under Section 324, IPC but Under Section 323 IPC.

5. As regards the first question, namely, defence of property we may say at once that there is very little material on which the Learned Counsel for the Appellants attempted to set up such a plea. The plea was not clearly taken by the accused themselves in the Court of Session. It was mentioned in the High Court but was rejected. In this Court no substantial evidence has been brought to our notice on which we can say that the Appellants had exercised any right of private-defence either of person or of property. There is some confusion as to which field it was in which the occurrence took place. Kalapnath Singh in one place said that he had ploughed his own field and then moved to another but evidence of the sub-inspector read with the seizure memo shows that it was in the field of Kalapnath Singh himself that the occurrence took place. If this were so, it would go to show that the Appellants went to the field of Kalapnath Singh to beat him and his nephew. There is evidence to show that there was enmity and litigation had taken place between the rival parties. There was thus motive for the Appellants to have taken this action. We do not accept the plea of the right of private defence of person or property which was raised belatedly and has been reject ed in the Hi