- (1.) ONKARESHWAR Bhatt, J. Accused-respondent, Ram Ujagar, was tried under Section 302 IPC in Sessions Trial No. 345 of 1980. He was convicted by judgment and order dated 19-12-1981 under Section 304 Part II, IPC and sentenced to six months rigorous imprisonment by the then Vth Additional Sessions Judge, Basti, Government Appeal No. 653 of 1982 has been filed for enhancement of the sentence. Government Appeal No. 769 of 1982 has been filed for setting aside acquittal of the accused under Section 302, IPC.
(2.) SRI S. K. Pal, learned A. G. A. and SRI S. K. Lal, learned Counsel for the accused-respondent, have been heard and record of the case has been perused. Ghurahu, deceased of the case, was uncle of accused-respondent, Ram Ujagar. Sita Ram is the brother of the accused. Informant, Ram Bahore P. W. 1, is son of the deceased. Rajpati P. W. 5 is daughter of the deceased. They lived in village Kachhiya Police Station Paikolia District Basti. There was litigation in between the accused and his brother, Sita Ram, in respect of landed property. The deceased, Ghurahu, was helping Sita Ram due to which the accused was annoyed and bore enmity with the deceased. The accused had filed complaint against the deceased and Sita Ram for upturning the crop of the field sown by him. Summons was issued in the complaint case which was served on the deceased a week before the date of occurrence. The deceased on 30-1-1980 went to the house of the accused and asked Phulpati, D. W. 1, wife of the accused, as to why he had been implicated and he would take its revenge. At 3. 30 p. m. when the deceased was proceeding from his house towards his field and reached under mango tree near the house of Autar, the accused armed with spear started abusing the deceased and said to the deceased that it was he (deceased) who had created the dispute and he would not leave him alive. The deceased shouted and tried to run away by retreating. On his shouts informant Ram Bahore, his sister, Rajpati and his brother, Sita Ram rushed. Before they could reach accused struck spear blow on the left side of lumber region of the deceased. The wound was tied up with clothes but the victim died and the accused ran away with his spear. A written report of the occurrence was lodged on 30-1- 1980 at 9. 30 p. m. at the police station. On 1-2-1980 post-mortem examination of the deceased was done by Dr. O. P. Misra, P. W. 7. The deceased was aged about 55 years. The doctor found stab punctured wound 1" x 1/4" x penetrating cavity deep on left side lumber region and one linear abrasion 1/2" x 1/8" on right side nose. Internal examination revealed damage to large vessels, walls of abdomen, peritoneum, small intestine, large intestine and left kidney. Two eye-witnesses of the case are Ram Bahore P. W. 1 and Rajpati P. W. 5, who are son and daughter of deceased, Ghurahu.
(3.) ACCUSED, Ram Ujagar has stated that Sita Ram appropriated his cultivatory plot with the help of the deceased, Ghurahu for which he had instituted a case. He has further stated that in the complaint name of the deceased was also mentioned due to which the deceased was very much annoyed. He has further stated that the deceased armed with Gandasa came to his house hurling abuses. The deceased entered his house and assaulted his wife due to which finger of his wife was cut. He has further stated that the deceased wielded Gandasa with intention to cause death of his wife and in order to save his wife he had assaulted the deceased. He has also stated that the occurrence did not take place under the mango tree. D. W. 1 Phulpati, wife of the accused, has stated the defence case. She stated that the deceased threatened to kill her and wielded Gandahaa which she warded off by her hand and it hit her finger, due to which injury was caused to her finger. The deceased aimed Gandasa at her neck when in the mean time her husband, accused, came and in order to save her he assaulted the deceased. D. W. 2 Bramhdeo Sahai Srivastava has stated that on 1-2-1980 Dr. R. C. Jani had examined the injuries of Phulpati. Ex. Kha- 1 is the injury report. Phulpati had received one lacerated wound 1. 5 cm x 3 cm skin deep on the right index finger on the palmer side. Other injury was contusion 5 cm x 1. 5 cm on the left side of back just below the lower and end of left scapula. She had complained of pain on the neck and on the abdomen. The injury report shows that injuries were simple and were caused by blunt object. On appraisal of the evidence the trial Court has held that an offence under Section 304 Part II IPC is made out against the accused since the accused acted under sudden provocation. It is admitted position that the deceased had received only one injury. According to the defence case a stated by Phulpati the deceased entered the house armed with a Gandasa and threatened to kill her. She has also stated that she warded off the Gandasa blow by her hands which caused injury to her finger. Second Gandasa blow was aimed at her neck when her husband reached and assaulted the deceased. Phulpati had injury in her finger. Every person has a right to defend his own body, and body of any other person, against any offence affecting the human body. Right of private defence is available against an act which reasonably causes apprehension of death or of grievous hurt. It has come in evidence of P. W. 1 Ram Bahore that his father, the deceased, went to the house of the accused and was threatening to kill the wife of the accused and at that time he was armed with Gandasa. He has further stated that his father assaulted the wife of the accused by Gandasa due to which she sustained injuries on her finger and when his father tried to assault again the accused reached there and in order to save his wife the accused assaulted his father. Thus, the statement of Ram Bahore shows that when the deceased went to the house of the accused he was armed with Gandasa and was threatening to kill Phulpati, wife of the accused, and gave a Gandasa blow to her. The deceased also tried to give a second blow when the accused reached there and in order to save his wife he assaulted the deceased. One Gandasa blow did cause injury to Phulpati and second blow was being aimed at her. In the above circumstances, there could be reasonable apprehension in the mind of the accused that death or grievous hurt would otherwise be the consequence of assault. Right of private defence of the body commences as soon as reasonable apprehension of danger to the body arises from the attempt or threat to commit the offence though the offence may not have been committed, and it continues as long as apprehension of danger to the body continues. The right of private defence does not extend to inflicting more harm than is necessary to inflict for the purposes of defence. The injury which is inflicted by the person exercising the right should be commensurate with the injury with which is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right. The facts and circumstances brought out in the evidence show that when the deceased aimed second Gandasa blow at his wife, the right of private defence of the body accrued to the accused. However, the accused by selecting vital part of the body of the deceased had exceeded his right of private defence. The injury had caused sufficient internal damage to the deceased. On the facts and circumstances, the act of the accused did not amount to murder under any of the clauses of the definition given in Section 300 I. P. C. The act of the accused was such as to cause bodily injury as was likely to cause death. The trial Court has rightly held that the offence committed by the accused was one under Section 304 Part II I. P. C.;