A.L. Dave, J. - (1.) The present appeal arises out of a judgment and order passed by the learned Additional Sessions Judge, Bhavnagar, in Sessions Case No. 161 of 1992 before him, wherein the present respondent came to be convicted for murder of one Bhopabhai Lakhabhai and sentenced to life imprisonment along with fine of Rs. 1000/- and was directed to undergo further rigorous imprisonment for six months in the event of default in payment of fine.
(2.) The unfortunate incident occurred on 5th May, 1992 at about 13.30 hours near railway track in the locality known as Rasala Camp of the city of Bhavnagar. The accused Koli Jagdish alias Hakudo Lakhabhai has an elder brother named Chitharbhai, who is married to Aartiben. As per prosecution, the accused suspected illicit relation between Aartiben and deceased Bhopabhai. In that regard, at about 6.30 P.M. on the 5th May, 1992, the two persons had altercation which was followed by a scuffle. The scuffle was witnessed by a young girl named Sita, witness Kanubhai and another witness Najabhai, who happens to be cousin of the deceased-Bhopabhai. During the course of the scuffle, the accused brought out a knife and gave a blow just below the neck portion on the back side of the deceased. When the blow was given, the deceased was in a bent position. The injury that was caused was so grievous that it caused death of Bhopabhai. The knife penetrated through the lungs and also cut a major vessel resulting into profused bleeding and ultimate death of the deceased. Eye-witness Sita informed Bhaskarbhai Dhanjibhai, who, in turn, lodged the information with the police at about 21.00 hours and the offence was registered at about 21.15 hours on the same day. In the meantime, police was informed at about 20.30 hours by the hospital authorities. Following the registration of the offence, the matter was investigated upon and charge sheet filed. The matter was sent to the Sessions Court by the learned Chief Judicial Magistrate, Bhavnagar, for trial as the offence was exclusively triable by a Court of Sessions. At the trial, the accused pleaded not guilty and after considering the evidence on record, the learned Sessions Judge came to a conclusion that the prosecution was able to prove the charge of murder against the accused-appellant and passed the sentence of conviction and imprisonment for life against the accused on 22nd April, 1993, which is the subject matter of challenge in this appeal.
(3.) We have heard Mr. R.K. Joshi, learned advocate appearing for the appellant-accused. He submits that the three eye-witnesses have, in substance, supported the factum of the accused assailing the deceased with a knife and that injury resulting into the death of the deceased. Mr. Joshi's case is that the place of incident is near to the house of the accused and his brother as compared to the house of the deceased. The eye-witnesses did not speak anything about the origin or genesis of the incident. They straightaway come with a story that they saw the deceased and the accused engrossed in a scuffle. Nobody speaks anything about how the incident started. Another aspect that Mr. Joshi has brought to our notice is that, according to the witnesses, the deceased had bent down for picking up a stone. This gave reasonable apprehension of assault by him with the help of the stone in the mind of the accused and it is only then that the. accused has drawn the knife and has given a single blow. Till then, the accused has not drawn his knife and, subsequently also, the accused has not given any further blows. Mr. Joshi, therefore, urged that the trial Court was in error in convicting the accused for murder as no intention could have been attributed to the accused for committing murder of the deceased. There does not seem to be any premeditation for commission of crime nor is there any criminal antecedent of the accused. Mr. Joshi, therefore, submitted that the accused, on plain reading of the evidence, appears to have acted in exercise of his right of private defence. The trial Court has overlooked this aspect and has convicted the accused for murder of deceased Bhopabhai and the impugned judgment and order, therefore, needs to be reviewed by this Court.;