S. S. BYAS, J. - (1.)ACCUSED Kaliya alias Jagdish was convicted under section 302, I. P. C. and was sentenced to imprisonment for life with a fine of Rs. 1000/-, in default of the payment of fine to further undergo three months' rigorous imprisonment by the learned Sessions Judge, Jodhpur vide his judgment dated January 30, 1979. He has come up in appeal to challenge his conviction and sentence.
(2.)BRIEFLY stated, the prosecution case, which is short and simple, is that deceased-victim Mahendra Singh Chaudhary was living with his wife PW 13 Smt. Meena, minor son Rajesh aged about 5 years and daughter Shashi aged about 2\ years in a room in Hukam Niwas Building situate in Sardarpura, Jodhpur. The deceased and the appellant were on inimical terms. At about 7. 00 P M. on February 28, 1978, the deceased, his wife and the two children left their house to go to a temple as it was the birthday of Kumari Shashi. When the party covered a distance of a10-15 feet and reached near a Peepal tree, the party saw the appellant and Nrasingh Das (Co-accused acquitted) standing there. Accused Kaliya gave a fist blow on the mouth of the deceased and thereafter grappled with him and felled him down. The appellant did not leave the deceased. Somehow or other, the deceased managed to get up and started running in a bid to save himself. The appellant and Nrasingh Das ran after the deceased and caught him a few steps away. Nrasingh Das caught hold the hands of the deceased and the appellant struck a number of blows to him with knife he had with him. The victim received multiple injuries, one of which was in his abdomen. The victim fell down. P. W. 13 Smt. Meena raised cries and many persons collected there but none could dare to intervene. Both the culprits thereafter made good their escape. There was profuse bleeding from the wounds of the victim and the clothes he was wearing got drenched with it. Smt. Meena also received some injuries when she tried to rescue her husband. She took her husband in a three-wheeler auto-rikshow to Mahatma Gandhi Hospital, Jodhpur where he was admitted for treatment. One Chand-mal on duty at the enquiry cell of the hospital informed police, Sardarpura on telephone about the injured condition of the victim. The Station House Officer Badansingh (PW 17) immediately reached the hospital. Before he could reach there, the victim succumbed to the injuries. The Station House Officer found Smt. Meena there in the hospital and recorded her statement Ex. P. 16. Ex. P. 16 was treated as the First Information Report and a case under section 302, I. P. C. against the accused appellant and his associate Nrasingh Das was registered. The inquest report of the victim's deadbody was prepared. His blood-stained clothes were seized and sealed. The site of occurrence was inspected and blood-smeared soil was seized and sealed from there. Thn autopsy on the victim's deadbody was conducted at about 12. 15 P. M. on March 1, 1978 by Medical Jurist Dr. Prakash Dayal (PW 9 ). The doctor noticed the following ante-mortem injuries on the victim's deadbody:- 1. Incised wound 5 c. m. x 1. 2 c. m. on the chest on left side at the level of 6th rib and 6th intercostal space. The 6th rib had been partially cut at inferior border at the posto chondal junction. It was 4. 5 c. m. from the mid-line and was pleural cavity deep. There was about 70 to 100 cc blood in the left pleural cavlty. The injury was oblique in direction. 2. Incised wound 2. 5 c. m. x 0. 5 c. m. and skin deep in the eppigestic region 1 cm. to the left of mid line. It was transversed. 3. Incised wound 3. 5 cm. x 1. 5 c. m. about 7. 5 cm. to the left of mid-line and 10. 5 c. m. above the umblicus. The peritonium had been perforated and the omuntum was protrunding through the wound. It was oblique. 4. Incised wound 4. 5 c. m. x 1. 2 c. m. about 12 c. m. from the mid-line and 5. 5 c. m. below and lateral to injury No. 3. It was oblique. The omuntum was protruding and the peritonium had been performed. 5. Incised would 4. 5 c. m. x 1. 6 c. m. about 1. 3 cm. below the umbilicus in the mid line. A loop of intestine about 15 cm. long was protruding through the wound and it had been perforated at two places about 1 cm. long, The wound was oblique. The mesentry had been perforated at the margin of the intestine at two sides about 0. 7 c. m. long. There was about 500 cc blood in the peritonium cavity which was partially clotted. 6. Incised wound 2. 5 c. m x 0. 5 c. m. just to the right of injury No. 5. It was skin deep and longitudinal. 7. Incised wound 5 5. c. m. x 2. c. m. and muscle deep on the antro-lateral aspect of left thigh 14 cm. below the anterior superior iliac spine. It was transversed. 8. Incised wound 1. 0 cm. x 0 5 cm. and skin deep on the anterior aspect of left thigh 2. 5 cm. medial to injury No. 7. It was transversed. 9. Incised wound 3 cm. x 1 cm. and skin deep 2. 5 c. m. medial to injury No. 8. It was longitudinal. 10. Incised wound 2. 5 cm. x 1 c. m. and muscle deep on the lateral aspect of left thigh in 23 cm. below the crest of ileam. It was longitudinal. 11. Incised wound 2. 5. cm. x 1 cm. and muscle deep on the medial aspect of upper part of left thigh. It was longitudinal. 12. Incised wound 4 5 c. m. x 0. 7 c. m. and skin deep on the left lateral aspect of chest at its middle. It was longitudinal. 13. Abrasion 1. 5 c. m. x 0. 7 c. m. on the bridge of nose. 14. Lacerated wound 1 cm. x 0. 7 cm and muscle deep on the lower lib on left side with fracture dislocation of the lateral-incisor and canine teeth of upper and lower jaw with laceration of the gum at the site. 15. Bruise 7 c. m. x 3. 5. c. m. on the lateral aspect of left arm at its middle.
Injuries No. 1 to 12 were stated to have been caused by a sharp edged weapon like knife while the remaining three injuries No. 13 to 15 were stated to have been caused by some blunt impact on a hard surface during scuffle. In the opinion of Dr. Dayal, the cause of death was shock as a result of perforation of intestines and haemorrhage. He was also of the opinion that injury No. 5 was individually sufficient in the ordinary course of nature to cause the death. He was further of the opinion that death could also be the result of the cumulative effect of the remaining injuries. The post mortem examination report issued by him is Ex. P. 10. The injuries of Smt. Meena were also examined and an abrasion was found in her left wrist region. The injury report issued by him is Ex. P. 11. Both the culprits after committing the offence, absconded and could not be arrested for some days. On 15. 3. 78, the police Sardarpura received a message on telephone from Barmer that the accused-appellant and Nrasingh Das were arrested there under Section 109, Cr. P. C. Sub-Inspector of Police Yashpal Singh (PW 11) went there and took both of them in police custody. He prepared the arrest memos. The blood stained clothes of the culprits were recovered in consequence of the information furnished by them. Knife which was alleged to have been used in the commission of the murder, was also recovered in consequence of the information furnished by accused-appellant Kaliya. The blood-stained articles were sent for chemical examination and human blood was detected on most of them. Some injuries were found on the person of Kaliya at the time of his arrest His injuries were examined at Jodhpur on 20. 3. 78 by Dr. B. K. Chaudhary (PW 10 ). The following eight abrasions were noticed on his person:- 1. Abrasion (healed) 1. 0 c. m. x 2. 0 c. m on the left parietal region of the scalp. 2 Abrasion (healed) 1. 0 c. m. x 0. 2 c. m. on the back of the neck. 3. Abrasion (healed) 0. 5 c. m. x 0. 5 c. m on the left shoulder. 4. Abrasion (healed) 0. 5 c. m. x 0. 2 c. m. on right scapular region. 5. Abrasion (healed) 0. 2 c. m x 0. 2 c. m. on the right side of the chest. 6. Abrasion (healed) 0. 5 c. m. x 0. 1 c. m. on the right index finger on the proximal thallings palmer aspect. 7. Abrasion (healed) 0. 4 c. m. x 0. 2 c. m. on the back of left fore-arm at its middle 1/3. 8. Abrasion (healed) 3. 0 c. m. x 0. 1 c. m. on the left knee joint anteriorly. All the injuries were designated as simple, caused by some blunt object. The duration of the injuries was found near-about within 10-15 days at the time of examination. The injury report prepared by Dr. Chaudhary is Ex. P. 12. On the completion of investigation, the police submitted a challan against the accused-appellant and his associate Nrasingh Das in the Court of the Chief Judicial Magistrate, Jodhpur, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed a charge under sec. 302, against accused Kaliya and under sec. 302/34, 1 P. C. against co-accused Nrasingh Das, to which they pleaded not guilty and demanded the trial. Accused Nrasingh Das, pleaded alibi and stated that he was not at the scene of occurrence when the incident is allaged to have taken place. Accused Kaliya admitted his presence on the spot but denied to have committed the murder of victim. According to him, the victim made an assault on him with a knife. Both of them grappled with each other. When the deceased-victim made an attempt to stab him, he snatched away the knife from his hand and struck some blows with it to the victim to save his own life. A right of private defence was thus claimed. During trial, the prosecution examined nine witnesses and filed some documents. In defence, the accused examined three witnesses. On the conclusion of trial, the learned Judge found no incriminating material against accused Nrasingh Das. He was consequently acquitted. The learned Judge found no truth or substance in the defence put forward by accused Kaliya. The charge against him was held duly proved. He was, therefore, convicted and sentenced as mentioned at the very out-set. Aggrieved against, his conviction and sentence, the accused-appellant has taken this appeal.

We have heard Shri B. R. Purohit, learned counsel appearing for the appellant and Shri Niyazuddin Khan-Public Prosecutor. We have also gone through the case file carefully.

In assailing the conviction, Shri Purohit raised two contentions i. e. 1) the offence made out according to medical Evidence is not that of murder under section 302 but under section 304 part I, I. P. C. and 2) the plea of the accused relating to the right of private defence was wrongly rejected by the court below.

In reply, the learned Public Prosecutor submitted that the injuries found on the victim's deadbody were on vital parts. One of them was in the abdomem which according to doctor Dayal was sufficient in the ordinary course of nature to cause the death. The other injuries were also collectively sufficient to cause the death. As such, the offence made out is covered by clause 3 rdly and the offence would be, therefore, of murder under section 302, I. P. C. It was also submitted that the right of private defence was not available to the appellant as he was an aggressor. We have taken the respective contentions into consideration.

(3.)PW 9 Dr. Dayal in his examination-in-chief deposed that injury No. 5 of the victim was sufficient in the ordinary course of nature to cause death. He further deposed that the remaining injuries were also collectively sufficient to cause the death. In cross-examination he stated that in the ordinary course of nature the man would not survive after receiving injury No. 5 but only if expert treatment was made available immediately to him, he might have survived Learned counsel for the appellant, in view of this statement of Dr. Dayal, wants us to take out the offence from section 300, I. P. C. But we are unable to accept his contention. Exception (2) of Section 299 IPC clearly lays down that where death is caused by bodily injury, the person who caused such bodily injury shall be deemed to have caused the death of him although by resorting to proper remedies and skillful treatment the death might have been prevented. We have given our anxious consideration to the testimony of Dr. Dayal. In our opinion, there is nothing in it to take out the case from clause 3rdly of Section 300, I. P. C. If the bodily injury inflicted is sufficient in the ordinary course of nature to cause the death, clause 3rdly would atonce spring up to cover the case within its ambit. As such, injury No. 5 is sufficient to bring the case within the four corners of clause 3rdiy. Apart from that, the remaining injuries were also collectively sufficient to cause the death. The victim was iniflcited as many as 12 incised wounds on the different parts of his body. Again, the intention of the accused to commit the victim's murder is apparent looking to the number of injuries, parts of the body where they were inflicted and the weapon namely the knife used. We are, therefore, of the opinion that the offence resulting from the death of the victim is that of murder unless the case is covered by any of the Exceptions enumerated in Section 300, I. P. C.
The principal contention is that the plea of right of private defence was wrongly dismissed by the trial court. Since some injuries were found on the person of the appellant, the contention should be examined at some length. PW 10 Dr. Chaudhary, who examined the appellant on 20. 3. 78 while he was under arrest, found as many as 8 injuries on his person caused by some blunt object. One of these injuries was on the parietal region. The injuries were found healed and their duration was stated to be of 10-15 days. In cross-examination, Dr. Chaudhary admitted that in estimating the duration of injuries, a margin of a week on both the sides is possible. The occurrence took place on February 28, 1978. As such the injuries found on the person of appellant Kaliya could be of the same duration as that of the deceased-victim. The appellant was shown to Dr. Chaudhary during trial when his evidence was being recorded. A scar on the left parietal region of the appellant was noticed by him which according to him was fresh of nearly one to two months duration. He further admitted that abrasions do not leave permanent scar. He further admitted that injuries No. 4, 5 and 6 could have been caused by some pointed object like knife.

Keeping these injuries of the appellant in view, the evidence of the eye witnesses may be examined in an attempt to find out whether a right of private defence was available to the accused. Five ocular witnesses were examined by the prosecution viz , PW 2 Ram Lal, PW 3 Shri Krishna, PW 5 Dalpat, PW 13 Smt. Meena and PW 16 Rajesh. The first three are hostile while Smt. Meena is the wife and Rajesh is the son of the deceased-victim. PW 3 denied his presence at the scene of occurrence and stated that he saw no occurrence taking place in his presence. The witness was declared hostile and was confronted with his police statement recorded under section 161, Cr. P. C. during trial He remained firm on his denial and despite cross-examination by prosecution, nothing could be elicited from him which may be helpful to it.