B. R. ARORA, J. - (1.) THIS appeal is directed against the judgment dated 21. 01. 1978 passed by the learned Addl. Sessions Judge, Sri Ganganagar by which the learned Addl. Sessions Judge, Sri Ganganagar convicted the appellant u/sec. 302 I. P. C. and awarded a sentence of life imprisonment and a fine of Rs. 100/- and in default of payment of fine to further undergo one month's Rigorous-imprisonment.
(2.) THE incident which led to the prosecution of the appellant, took place in the night at about 9. 15-9. 30 P. M. on 5. 04. 1977 near Durga Mandir in the town of Sri Ganganagar. THE case of the prosecution as unfolded in the F. I. R. is that the deceased Upendra Singh @ Uppi, Kulwant Singh, Ajayab Singh, Kewal Krishna and Ramchandra met together in the part of the Indira. Gandhi Colony. About a month before the date of the incident, the accused Babli tried to tease one girl upon which Navratan asked him not to do so upon which accused Babli asked Navratan how she is related to you. Ten to fifteen days thereafter, Babli accused gave beating to one Chandu Ram Sindhi near the Canal. Both Chandu Ram and Navratan were the close friends of deceased Uppi. On the date of the incident, at about 9. 15 P. M. Kalwant Singh, Ajayab Singh, Kewal Krishna and Ramchandra were sitting in the park. After some time, Upendra Singh @ Uppi came and said that let us go towards the canal side for walking and from there, we will go for seeing the movie in Adarsh theatre. When they reached near the park of Mukarjee Nagar at about 9-30 p. m. , the accused party came from the other side of the park i. e. from Durga Mandir side and Babli raised 'lalkaar'. At that time, accused Roshan Lal was armed with lathi, Jarnail Singh was armed with a hockey and Mahendra Singh was also armed with lathi while Babli was having a knife in his hand. Immediately thereafter, Ujagar Singh @ Babli caught hold the collar of the shirt of Upendra Singh @ Uppi and inflicted a knife injury on him. After receiving the injury, Upendra Singh @ Uppi fell down. THE accused persons thereafter ran away from the place of the occurrence. Ramchandra called one 'rikshe wala' who was standing there but he refused to carry Uppi and, therefore, Ajayab Singh drove the Riksha. Ramchandra, Kulwant Singh, Kewal Krishna and Ajayab Singh took Upendra Singh @ Uppi to the hospital where he was declared dead. From there, Ajayab Singh and Kewal Krishna remained in the hospital and Ramchandra and Gallant Singh went to the police Station and lodged the First Information Report at Police station Kotwali Sri Ganga Nagar at 10. 35 p. m. On the basis of this report, a case u/s. 302/34 I. P. C. was. registered against Babli, Roshan Lal, Mahendra Arora and Jarnail Singh. THE police after necessary investigation, presented the challan against all the four accused persons. THE learned Addl. Sessions Judge, Sriganga Nagar tried Babli for the offence u/sec. 302 I. P. C. while Roshan Lal Arora, Mahendra Arora and Jarnail Singh were tried for the offence u/sec, 302/34 I. P. C. THE prosecution in support of his case, examined thirteen witnesses and the defence did not examine any witness. THE learned Addl. Sessions Judge after trial convicted accused Ujagar Singh @ Babli for the offence u/sec. 302 I. P. C. and awarded him a sentence of imprisonment for life and a fine of Rs. 100/- and in default of payment of fine to further undergo one month's R. I. THE learned Addl. Sessions Judge however acquitted Mahendra Pal, Roshan Lal and Jarnail Singh of the offence u/s. 302/34 I. P. C. It is against this judgment convicting and sentencing the appellant that the appellant Ujagar Singh @ Babli has filed this appeal. We have heard learned counsel for the appellant Mr. D. K. Purohit as well as the learned P. P. Mr. K. L. Thakur appearing for the State. It has been argued by the learned counsel for the appellant that the witnesses produced in the case are not reliable witnesses. Their antecedence and character are of suspicious nature and there are many contradictions in their statements and no conviction can be based on the testimony of such witnesses. He has further submitted that when the learned trial Court has not accepted the testimony of these witnesses qua Roshan Lal, Mahendra Pal and Jarnail Singh and acquitted them then on the basis of such type of evidence, no conviction can be based. When the witnesses are speaking lie qua these three accused persons, it cannot be said that they are speaking truth so far as the present appellant Ujagar Singh @ Babli is concerned. The learned counsel for the appellant has further submitted that even if the prosecution case is accepted as true and these witnesses are relied upon, then too, no case beyond section 324 I. P. C. is made out. Mr. K. L. Thakur, learned P. P. on the other hand has supported the judgment passed by the learned trial Court and has submitted that the witnesses produced by the prosecution are wholly reliable witnesses. Merely because some cases are pending against them, that will not make them unreliable. They were at the scene of the occurrence and they had witnessed the occurrence. Immediately after the occurrence, they brought Uppi. for medical treatment to the hospital but he died immediately after reaching the hospital. We have given our earnest considerations to the rival submissions made by the learned counsel for the parties. Before dealing with the contentions raised by the learned counsel for the appellant, we would like to indicate the nature of the evidence led by the prosecution in support, of the case. There is evidence of three eye witnesses i. e. P. W. 7 Ramchandra @ Rami who lodged the F. I. R. , P. W. 8 Gallant Singh who was with the deceased Uppi at the time of the incident and who brought the deceased Uppi to the hospital and after his death, he went with Ramchandra at the Police Station to lodge the report and P. W. 9 Kewal Krishna who was with the deceased right from the Indira Gandhi Park upto the hospital. The evidence of these eye witnesses is sought to be corroborated by the prosecution by the evidence of P. W. 1 Satnam Singh, P. W. 3 Chandu, P. W. 5 Rajkumar and P. W. 11 Navratan. These witnesses have been produced by the prosecution to show that prior to this incident, quarrels took place between the accused party and the complainant party several times. Out of these four witnesses, P. W. I Satnam Singh has not supported the prosecution case and he was, therefore, declared hostile. Then there is a evidence of P. W. 3 Chandu who has seen the injured Uppi in a Riksha in the company of Ramchandra, Kulwant Singh, Kewal Krishna and Ajayab Singh sometime after the incident. P. W. 2 Shyam Sunder was produced by the prosecution to show the recovery but he has also not supported the prosecution case and was declared hostile. Then there is a evidence of P. W. 4 Kashi Ram who is the A. S. I. and who was a witness to the recovery of lathi from Roshan Lal and 'katari' from Mahendra Singh which was recovered by S. H. O. P. W. 13 Tekchand in his presence, P. W. 6 Mool Singh is the Foot Constable who took the articles for chemical examination to Jaipur. P. W. 13 is Tek Chand S. H. O. who conducted the investigation and after completing the investigation, presented the challan. P. W. 12 is Dr. G. S. Baxi who conducted the Post mortem of the deceased Uppi,. This is the all evidence produced by the prosecution.
(3.) NOW, there are three eye witnesses of the occurrence who have seen the occurence and who were with the deceased Uppi right from the public park of Indira Gandhi Colony upto the place of incident when he received knife injury and these three eye witnesses brought Uppi to the hospital. P. W. 7 Ramchandra @ Rami has stated that on 5. 04. 1977 at about 9. 00 P. M. , he, Kulwant Singh and Ajayab Singh were sitting in Indira Park and Kewal Krishna was standing at some distance. They also called him and after about five minutes deceased Upendra Singh also came there. Deceased Upendra Singh then told us that let us go to see the movie in the 'adarsh' theatre in the last show upon which they all started towards the 'adarsh' theatre through the lane of 'ludhiyana wale doctor'. When they reached near the Durga Mandir, accused Roshan Lal, Mahendra, Jarnail Singh and Babli came there. Babli accused raised a 'lalkaar' and caught hold of the shirt of Uppi and inflicted a knife injury on the left side of the stomach of the Upendra Singh @ Uppi. After receiving the injury, Upendra Singh fell down and all the four accused-persons thereafter ran away. Thereafter, Kalwant Singh, Kewal Krishna and Ajayab Singh took Uppi to the hospital in a Riksha. The Riksha was driven by Ajayab Singh as the Rikshawala refused to carry the injured to the hospital Kalwant Singh and Ramchandra the injured in the hands and lap and Kewal Krishna sat behind the Riksha. In the hospital, the Doctor declared Uppi dead. Thereafter, Ajayab Singh and Kewal Krishna remained in the hospital and Kalwant Singh and Ram Chandra went to the Police Station and lodged the F. I. R, Similar is the statement of P. W. 8 Kalwant Singh and P. W. 9 Kewal Krishna and both the witnesses have fully corroborated the evidence of P. W. 7 Ramchandra on all points. They have been cross examined by the counsel for the accused appellant at length but nothing has come on record from which any inference can be drawn that these witnesses are not reliable witnesses. Their evidence has not been shaken in the cross examination. The learned trial Court in his judgment has discussed the evidence of these witnesses at length and after careful consideration and close scrutiny of the evidence, found these witnesses as truthful witness. After careful reading of the evidence of these three witnesses, we are in agreement with the conclusion of the learned Addl. Sessions Judge that these witnesses are truthful witnesses. They were with the deceased right from the Indira park and brought Uppi to the hospital and immediately after the death lodged the F. I. R. at the police station, Kotwali, Sriganganagar. They cannot be disbelieved merely because certain criminal cases are pending against them. These witnesses did not assign any overt act to the other three accused and on that count, they were acquitted. In this view of the matter, we are of the opinion that these three eye witnesses are truthful and reliable witnesses and their evidence inspires confidence. Learned counsel for the appellant has alternatively pleaded that the complainant party on the date of the incident came armed in order to give beating to them and in their right of private defence of person accused Babli inflicted an injury which resulted in the death of Upendra Singh @ Uppi and, therefore, Babli accused has not committed any offence as by giving only one blow he did exceed his right of private defence. It may be pointed out that we are unable to accept this theory of right of private defence as put up by the defence. Not a single scratch has been received by the complainant party. The absence of any injury whatever on the side of the complainant party, shows that the. accused party was not the aggressor and as such no right of private defence was available to the accused appellant. Now coming to the point what offence has been committed by the appellant in the present case. The accused Babli as per the prosecution case inflicted only one injury on the person of deceased Uppi and according to P. W. 12 Doctor G. S. Baxi, it was a stab injury with clean cut margins and dried blood 1" x " by chest cavity deep situated obliquely in the 7th and 8th intercostal space going upwards. This injury was in the mid axillary line. The Doctor has also opined that this injury was sufficient in the ordinary course of nature to cause death. Though the prosecution has led evidence only to the effect that as soon as the accused party saw the complainant party, Babli raised 'lalkaar' and inflicted an injury. The accused has inflicted only one injury and there was no pre meditation. Both the complainant party and the accused party are not the person of good character and their antecedence is also not good and the incident took place at the spur of the moment. The appellant Ujagar Singh @ Babli had a knife and gave only one blow which incidently fell on the chest of the deceased Uppi. Under these circumstances, it cannot be inferred that the accused Babli had any intention to kill Uppi. He had no intention to cause death or the intention to cuase that particular injury which proved fatal. Therefore, neither clause 1 nor clause 3 of Sec. 300 IPC can be attracted in the facts and circumstances of this case. Looking to the nature of injury and the fact that the accused appellant did not repeat any blow and inflicted only one injury, we are of the opinion that inference that can be drawn in the present case is that the appellant Babli can be attributed only the knowledge that the injury which he is going to inflict, is likely to cause death and, therefore, in our opinion the accused has committed the offence u/sec. 304 Part-II of the Indian Penal Code and not under Sec. 302 IPC. We, therefore, acquit accused Babli of the offence u/sec. 302 IPC but convict him under Sec. 304 Part-II IPC. ;