G. N. Ray, J. - (1.) This appeal is directed against the judgment passed by the Division Bench of the Madhya Pradesh High Court in Criminal Appeal No. 699 of 1974 and Criminal Appeal No. 1036 of 1975 both disposed of by a common judgment dated March 11, 1980. Both the said appeals Nos. 699 of 1974 and 1036 of 1975 were preferred against the judgment dated August 30, 1974 passed by the learned Additional Sessions Judge, Narsinghpur in -Sessions Trial No. 20 of 1974. The Appellant, Raja Bhaiya, along with three other accused, namely, Arjun Singh, Hakku alias Hanumat Singh and Jeewan were sent for trial under Section 302 and 302 read with Section 34, I.P.C. for causing murder of Ramrup of Village Baghodi. The learned Additional Sessions Judge acquitted Arjun Singh, Hakku and Jeewan but convicted Raja Bhaiya under S. 304 Part 1, I.P.C. and sentenced him to suffer rigorous imprisonment for seven years for causing death of Ramrup.
(2.) Against the said judgment of the learned Additional Sessions Judge, the State of Madhya Pradesh preferred an appeal in the Madhya Pradesh High Court at Jabalpur in Criminal Appeal No. 1036 of 1975 inter alia challenging the acquittal of the three accused persons and also challenging the acquittal of Raja Bhaiya under Section 302. Raja Bhaiya also challenged his conviction under Section 304, Part 1, I.P.C. in Criminal Appeal No. 699 of 1974 in the High Court of Madhya Pradesh. As aforesaid, both the said appeals were heard together and were disposed of by a common Judgment dated March 11, 1980. The High Court dismissed Criminal Appeal No. 1036 of 1975 by upholding the acquittal of the said three accused persons but set aside the conviction and sentence of the appellant, Raja Bhaiya, under Section 304, Part 1, I.P.C. and the High Court convicted Raja Bhaiya under Section 302, I.P.C. and sentenced him to suffer -imprisonment for life. With the aforesaid modification of the conviction and the sentence both the appeals were disposed of. The prosecution case in short is that Raja Bhaiya, the appellant, and the other co-accused were residents of village Dangidhana in the District Narsinghpur and the deceased Ramrup was residing in the village Baghodi which was about 2 furlongs away from Dangidhana. Halkesingh, PW. 1, Himmatsingh, PW 2 and Tikaram, PW 4, are the sons of the deceased and they had been residing with their father. About a week before the incident, Himmatsingh is said to have beaten Tawalsingh DW. 2, servant of Raja Bhaiya. On the morning of March 1, 1974, Raja Bhaiya caught hold of Lachu Patel, a friend of Himmatsingh and beaten him up in his house and Jeewan was sent to the house of the deceased, Ramrup, to call Himmatsingh but Himmatsingh had refused to come. Raja Bhaiya being enraged took a double barrel gun with him and being accompanied by Arjun singh armed with an axe, Hakku the other accused being armed with a muzzle loading gun and the accused Jeewan armed with a lathi proceeded towards the house of the deceased. Halkesingh was present in the village Dangidhana at that time and coming to know that Raja Bhaiya was proceeding to his house he rushed to his village and informed his brother Himmatsingh about the developments. On reaching his house, Halkesingh met his father and also Halkesingh in the Parchhi of their house and told them that Raja Bhaiya and his companions were coming to beat Himmatsingh. By that time, Raja Bhaiya and his companions arrived at the house of the deceased. Himmatsingh started retreating inside his house and their father, the deceased Ramrup came out and asked them as to why they had come. Immediately Raja Bhaiya fired his gun hitting the deceased on his right chest who fell down on the ground. Halkesingh thereafter rushed towards Raja Bhaiya in order to stop him from committing further mischief. To scare away Raja Bhaiya fired another shot in the air. Halkesingh then caught hold of his gun and a scuffle ensued. He was also joined by his two brothers, Himmatsingh and Tikaram and they all tried to snatch the gun. In that scuffle Arjun assaulted Halkesingh with his axe on the head while Jeewan assaulted Himmatsingh and Tikaram with his lathi. In the melee the accused persons managed to escape. Raja Bhaiya thereafter went to the Police Station with a motor cycle and lodged a report Ex. P. 17. He was sent for medical examination of his injuries. Halkesingh also proceeded to police station, Narsinghpur which was 12 kilometers away and he was also sent for medical examination by the police. The police took up investigation and the police officer, Mr. Shukla, visited the spot and found the dead body of the deceased lying in courtyard of his house, He also found blood stains on the ground and one broken chip (Article A), the butt of the gun and a pair of plastic shoes (Articles B and B-s), one leather shoe (Article C) and two empty cartridges (Articles D.1 and D.2) and made a seizure list. The dead body was sent for post-mortem examination. The police arrested the accused persons and also seized two guns one double barrel gun with the broken butt and another muzzle loading gun from Shankersingh, father of Raja Bhaiya on the same night as per seizure memo Ex. P. 11. The police seized a lathi from Jeewan. On the next day he sent Himmatsingh and Tikaram. for medical examination of their injuries. The guns, the empty cartridges and pellets removed from the body of the deceased were also sent for examination to the Ballistic Expert.
(3.) The appellant, Raja Bhaiya, pleaded that he had sent his servant Narayan and Tawalsingh DW.1 and DW.2 to ask Himmatsingh to meet him. After sending such message, he had been to his field along with his another servant Chaitu. As usual, he carried his gun with him. After some time, Tawalsingh came running and informed Raja Bhaiya that Halkesingh and Himmatsingh had wrongfully confined Narayan and had been beating him. Immediately he proceeded towards the house of the deceased. As soon as he reached there, Halkesingh, Himmatsingh, Tikaram. and the deceased Ramrup rushed towards him to snatch his gun. Himmatsingh was armed with an axe while the others were armed with lathis. As the said persons had been wielding their weapons, Raja Bhaiya in self defence to protect himself held his gun in both the hands. One axe blow of Himmat-Singh fell on the gun and the gun accidentally went oft. He then ran. away from the spot and went to the police station and lodged a report., He had also received injuries during the scuffle. The defence of the other accused was that they were not present on the spot and they had been falsely implicated because Arjun was the brother of Raja Bhaiya and the other two accused persons, namely, Hakku and Jeewan, were his friends. As a matter of fact, three witnesses were also examined, namely, Narayan DW. 1, Tawalsingh DW. 2 and Dr. Jaiswal DW.3.;