Mitter, J. - (1.) The main question involved in this appeal is, whether there was evidence to justify the finding that the appellant had exceeded his right of private defence in giving two blows with a dagger to one Shyamsingh one of which proved fatal.
(2.) The prosecution case was as follows. There was a long-standing enmity between the families of Achalsingh on the one hand and Hariram and his sons on the other on account of the fact that the admitted advance of Rs. 10,000/- by Hariram to Achalsingh some years back had not been repaid in spite of numerous demand made from time to time. The houses of Hariram and Achalsingh were situated at a short distance from each other in the City of Jodhpur. Hariram had two sons, Rameshwar and Devilal. Rameshwar had been given in adoption to his uncle but the relationship between him and his brother, Devilal continued to be quite cordial. Rameshwar was married to one Ratan Kanwar whose brother Shyamsingh came to lose his life in the way to be narrated hereafter. Achalsingh had two sons, Sampatsingh and Shyamlal. On March 28, 1963, at about 6 p. m. there was a quarrel between Devial on the one hand and Asulal, Sampat Singh, Shyamlal and two friends of theirs, Kishensingh and Uttam Giri on the other. This group of people started abusing Devilal whereupon Rameshwar's wife, Ratan Kanwar tried to intervene and stop the quarrel. The said group who were all accused in the Sessions Case which followed beat both Devilal and Ratan Kanwar. They also took away a golden Jhumri from the right ear of Ratan Kanwar. Eventually people of the locality put an end to this affair. Ratan Kanwar sent messages to her husband Rameshwar and her brother Shyamsingh, deceased. Before Shyamsingh reached the place, all the accused came from the house of Achalsingh to that of Devilal and raised a shout asking the latter to come out. The accused were armed variously, Sampat Singh with a dagger and the others with lathis. Rameshwar who happened to be there tried to close the door of Devilal's house, but the accused managed to get in and dragged Rameshwar out and started beating him. Ratan Kanwar who tried to intervene was also hurt. She received a blow on the head with a dagger of Sampatsingh as also lathi blows from the others. Shyamsingh, the deceased, happened to came on the scene at that hour and the fury of the accused fell upon him. Achalsingh's son, Shyamlal caught hold of Shyamsingh and Sampat Singh, appellant, struck blows with the Jambia on Shyamsingh's thigh and on his back near the waist. People of the neighbourhood like Ambalal (page No. W. 14), Nainsingh (page No. W. 13), Satyanarain (page No. W. 15) and Bhagwandas (page No. W. 16) who came in aid of Rameshwar's group were also injured by the accused. Nainsingh, Ambalal and Satyanarain were all injured by the Jambia of Sampat Singh. Thereafter the accused left the place. Shyamsingh, Ratan Kanwar and Ambalal were taken away by Rameshwar to the police station and a first information report was lodged at 8-30 p. m.
(3.) The injured persons were sent to the hospital and Shyamsingh was admitted as an indoor patient. Dr. Ojha who examined Shyamsingh thought his condition to be critical and arranged for a dying declaration of Shyamsingh to be recorded at 9-25 P. M. Shyamsingh stated that he had been wounded by Sampat Singh by means of a Jambia. The City Magistrate, Jodhpur who came in answer to a summons recorded another dying declaration at 10.50 P. M. The injury report on the person of Shyamsingh by Dr. K. C. Singhal was as follows: 1. Incised wound 1/4 "X 1/2 " muscle deep tapering 2"X 1/10 " below the medical aspect of the right thigh middle part. 2. Incised wound 1 1/2 " X 1/2 " cavity deep on the left lumber region, and 3. Teeth marks elliptical in shape 1 1/2 " in area on the left shoulder. In spite of the operation performed on him Shyam Singh expired on March 31, 1963 at 4 A. M. and the post-mortem was performed on the body by Dr. Har Govind. Dr. Singhal also examined Ratan Kanwar, Ambalal, Nain Singh and Satyanarain. On the person of Ratan Kanwar there was only one incised wound while there were three such wounds on the person of Ambalal, two on the person of Nain Singh and one on the person of Satyanarain. On the person of the accused Shyamlal there appeared various wounds but the injuries according to Dr. Har Govind were all simple in nature caused by a blunt weapon excepting a septic wound on the right little finger about which the doctor could form no definite opinion. On the person of some of the other accused several abrasions were noticed on medical examination, Sampat Singh, the appellant had a septic wound of 3/4" X 1/2" skin deep on the right little finger and an abrasion 1/4" X 1/4" on the front of the right knee. The injuries were all simple in nature. The Jambia which was recovered at the instance of Sampat Singh from his house was not found to be blood-stained. The accused Achalsing was arrested long time after the crime i.e., on 19th April, 1963.;