L.S.MEHTA, J. -
(1.)THIS is a criminal appeal preferred by the accused Shiv Dayal against the judgment of learned Sessions Judge, Bikaner, dated July 25, 1968, convicting the appellant under Section 307 I.P.C. and sentencing him to suffer four years' rigorous imprisonment and to pay a fine of Rs. 100/ -, in default of payment fine to further undergo rigorous imprisonment for one month.
(2.)THE prosecution story, in brief, is that the accused Shiv Dayal is a distant relative of the complainant Sohanlal, P.W.I. Shiv Dayal was a teacher. He used to purchase betels from the shop of Dev Kishan injured. Shiv Dayal owed a sum of Rs. 10 or Rs. 12/ -to Dev Kishan. Ihe said amount was demanded by Dev Kishan from Shiv Dayal from time to time. The debtor -promised to make payment of the amount in question several times, but he failed to do so. A day prior to the occurrence the creditor again, asked the debtor to clear off his account. Thereupon Shiv Dayal told him that he would do so next day. In the morning of November 11, 1967, Dev Kishan repeated his demand to Shiv Dayal, who agreed to mike payment of the dues in the evening of the day. That day at about 9 30 p.m., both Shiv Dayal, and his brother Shiv Prakash went to Dev Kishan's shop. Shiv Prakash was armed with a lathi and Shiv Dayal with a knife. The former struck two lathi blows on the person of Dev Kishan. The first blow fell on his head and the second struck the dorsum of his left hand. Hearing an outcry, Sohanlal, who was having his dinner inside his house, came out. Seeing Sohanlal, Shiv Dayal took out a knife from his pocket and pierced it into Sohanlal's chest. Sohanlal was injured and fell down According to the medical evidence Sohanlal received the following injuries as given in Ex. P.3: A cliptical stab wound (incised) slightly oblique in transverse direction, wound bleeding and covered over with clotted blood, 2 x 1 x pleuia deep with surgical emphysema on the right side chest of above and medial to the right nipple.
Dev Kishan also sustained a simple injury. The medical report Ex. P. 4 reads that the following injury was found on his person -
A vertebral contused wound 1 x 1/6 scalp deep with swelling around on the left forubal middle part.
Thereafter both the accused Shiv Dayal and Shiv Prakash left the place. Asha, P.W. 4 who was an eye witness of the happening, also left the place without attending on any of the injured persons Sohanlal was removed to the Associated Hospital, Bikaner, where he was operated upon He recovered from his ailment after about 3 weeks. The police registered a case under Sections 307, 326 and 323, I.P.C., against the two accused Shiv Dayal and Shiv Prakash. After necessary investigation, the accused were challanged in the court of Additional Munsiff -Magistrate, Bikaner. The said Magistrate. conducted inquiry in accordance with the provisions of Section 207 -A, Cr. P. C. and committed the two accused to the court of Sessions Judge, Bikaner. Shiv Dayal was to stand trial under Sections 307, 326 and 323, I.P.C.; whereas Shiv Prakash had to face trial under Sections 307/34, 326 and 323, I.P.C. The accused pleaded not guilty to the charges read out to them. In support of its case the prosecution examined 11 witnesses. In his statement, recorded under Section 342, Cr.P.C., accused Shiv Dayal stated that at about 10 in the night of November 11, 1967, he was going to his house. On his way towards home, he was stopped by Dev Kishan, who wanted to beat him. At that time he was all alone. Soon after Sohanlal came out of his house. He too wished to strike a lathi blow on his body This blow accidentally fell on the person of Dev Kishan. Sohanlal was on his Chauki and he was on the road. Sohanlal's feet slipped away and he fell down sustaining injuries. He could not say who inflicted the knife injury to Sohanlal. In his statement recorded under Section 342, Cr.P.C., Shiv Prakash pleaded alibi. In their defence, the accused did not produce any evidence. The trial court acquitted the accused Shiv Prakash of the offence under Section 307/34 and Sections 326 and 323, Penal Code. The court acquitted Shiv Dayal of the offence under Sections 326 and 323, I.P.C. It, however, convicted him of the offence under Section 307, I.P.C., and sentenced him, as aforesaid Hence this appeal.
Learned Counsel for the appellant raised in the course of his arguments the following two points: 1. that the 4 prosecution eye witnessess, Sohanlal, P.W. 1; Devkishan P.W. 2; Ram Ratan, P.W. 3; and Asharam, P.W. 4; are not reliable and that they have already been disbelieved by the trial court in so far as the prosecution of Shiv Prakash is concerned; and 2. that the accused Shiv Dayal, if at all inflicted injury to Sohanlal, he did so in the exercise of the right of private defence of his person. Learned Deputy Government Advocate supported the judgment of the trial court.
(3.)I now take up the evidence of the 4 eye witnesses. I agree with learned Counsel for the appellant that these 4 witnesses have not given their evidence with clean hands. Shiv Prakash is said to have held Sohanlal, when the latter was stabbed by Shiv Dayal. The trial court, while examining this aspect of the matter, noted at page 11 of the certified copy of the judgment, available on the record, that he had no option but to draw the inference that this part of the statement of the witnesses is an afterthought and that they have been forced or persuaded to give such a statement to implicate Shiv Prakash for commission of the offence under Section 307/14, I.P.C. All the witnesses have stated that Dev Kishan received two lathi blows This part of the version of the witnesses is negatived by Dr. G K. Bhatnagar. P.W. 5. He has unequivocally stated that he noticed only one injury on the body of Dev Kishan. His injury report is marked Ex. P. 4 Again, all the witnesses have said that the blood came out of the injury of Sohanlal. This version stands contradicted by S.H.C. Mohanchand Sharma, P.W. 10, who has pointed out in the course of cross - -examination that when he inspected the site, he did not find any blood on the ground. There is another significant factor which needs mention. Sohanlal, P.W. 1, has deposed that when he came out of his house, he did not see any knife in the hand of Shiv Dayal. On seeing him, Shiv Dayal took out a knife from his pocket and then inflicted an injury to him. Contrary to this, the other eye witnesses Dev Kishan, Ram Ratan and Asharam have categorically said that Shiv Dayal was already holding a knife in his hand. Thus, there are vital infirmities in the statements of the aforesaid four witnesses.