D.C.Gheewala, J. - (1.)The present appeal is directed against the order of conviction recorded by the learned Sessions Judge Panchmahalet at Godhra in Sessions case No. 50/93. When the appeal come up for admission before us, their records and proceedings of the case were very much before us. A Senior Advocate Mr. D.C. Triwedi, was also in the Court and he was requested by the Court to assist the Court on behalf of the appellant. The matter was admitted and the learned Public Prosecutor Mr. Divetia waived the notice. As the records and proceedings were before the Court, we had dispensed with the paper book and on going through the records we feel that tile conviction of the appellant is unsustainable.
(2.)It was alleged by the prosecution that on 3.3.85 at about 5.00 p.m. the appellant-accused had darted an arrow and thereby brought about the death of deceased Khunaji Bhavala. The motive for the murder Seems to be that deceased Khunaji had asked the appellant not to water his cattle at a particular place in the forest as the Forest Officers were raising objections. It appears that there was a heated exchange of words between the deceased and the accused. The accused-appellant was very much present before the Court. He is an old man, fragile in health, poor in understanding and seems to be living with one foot in the grave. From the record, it also transpires that when the appellant-accused was arrested, he had injuries on diverse part of his body and yet the Investigating Officer had pot cared to send him to the medical officer. It was the consistent case of the appellant-accused that the deceased had started pelting stones at him and thereby he was injured. It appears that his hand was swollen and there were injuries on his back: as well as when arrested he was lying somewhere in the ravine. After the incident, Bhavala Galaji lodged a complaint and the prosecution relied upon the evidence of Parsang Bbavala PW 2, Bhavala Gaiaji, the complainant, PW 3, and Chhagan Virsaing PW 4. Parsing Bhavala happens to be a son of witness Bhavala Galaji and brothers of deceased Khunji Bhavala. Initially in the complaint Bhavala Galji, PW 3, has stated that the appellant-accused had gone to his house and came out with a bow and arrow. However in the evidence of these three witnesses, it does not transpire that after the exchange of words, the accused had gone to his house and brought the bow and arrow. If the appellant had done so, then perhaps we would have been tempted to hold that his intention was more sinister than it appears. However, he seems to be having a bow and arrow with him as it is customary with the aborginals of Panchmahala and especially with those who are staying near the forest. The appellant-accused belongs to the aborgine tribe of Panchmahals District.
(3.)It also appears that as the appellant was not in a position to engage his own ad vocate at his expenses before the learned trial judge, one Mr. Parmar was appointed to represent the case of the appellant before the trial court. In his cross-examination of those three witnesses, a specific case was put on behalf of the accused that deceased had pelted stones and that the accused was injured. But these three prosecution witnesses, negatived the suggestion and not even semblance of effort seems to have been, on behalf of the prosecution witnesses to explain the injuries on the person of the appellant-accused. The learned Public Prosecutor Mr. Divetia, urged that is all cases where the accused is injured, it is not necessary for the prosecution witness to explain the injuries. There cannot be any dispute regarding this particular contention raised by Mr. Divetia If the injuries are superficial, if they are on a part which is not visible then the prosecution cannot be expected to explain the said injuries. In the instant case the hand of the appellant was swollen. That particular part was clearly visible and over and above this complainant Bhavala Galaji, PW3, the father of the deceased pas admitted in his cross-examination in paragraph 3 that his deceased son Khunaji had given some thrashing to the appellant accused. In view of this particular admission, it appears to us that there was considerable substance in what was suggested to the prosecution wit nesses by the learned Defence Advocate Mr. Parmar The appellant being old in years and fragile in health, could not have successfully prevented the deceased who was young in years and able bodied when the deceased was trying to injure the appellant and had succeeded to a great extent in injuring the appellant by pelting stones. If the appellant would not have acted in the way in which he is alleged to have acted. then perhaps the appellant would have received a little more punishment at the hands of the deceased and the result would have been more disasterous. Under the circumstances, the appellant who was carrying an arrow and bow with him and availed of the only course which was available to him and that was of darting a single solitary arrow against the deceased. Unfortunately, the arrow landed on a vital part The deceased pull out the same and Dr. Lalsing Gulabsing Ravat, PW 1 who had performed the post mortem examination oil the dead body of the deceased has admitted in his cross-examination that if the injured were to remove the arrow it may cause little more internal damage than what the darting of the arrow might have- caused. We are conscious of the fact that by pulling out the arrow the deceased could not have increased the depth of the injury, yet we cannot over look this particular opinion of the Doctor who had performed the P.M. Examination on the - dead body of the deceased. We, therefore, feel that the appellant had exercised a minimal force which I under the circumstances he was more than amply justified in exercising. He has not acted in an-unusually cruel on wanton way. It is also not in evidence that the appellant who is aged 65 years was such an expert marksman or that he has specifically and. designedly chosen a particular vital region of the person of the deceased. Daning sofa solitary arrow by an old man like the appellant had found a target, which by design- was not intended by the appellant, and this too the appellant had done only after he was between by the deceased and the deceased was also using stones for beating the accused. The stone in .the hand of a young person can be a formidable weapon and which would justifiably create an apprehension in the mind of the appellant accused that if he were not to act in a way in which he ultimately acted, there would have been apprehension of grievous bun being caused to him, which might even result in his death.