SHARMA, J. - (1.) THIS criminal appeal by accused appellant Mohd. Nazim has been preferred against the judgment and order dated September 29, 2000 passed by the Special Judge (Communal Riotes Cases), Tonk by which he convicted the accused appellant for the offence under Sec. 304 (I) I. P. C. and sentenced him to 10 years rigorous imprisonment with a fine of Rs. 500/-, in default of payment of fine, to further undergo imprisonment for one month.
(2.) SUCCINCTLY stated that contextual facts of the case are, that on 12. 8. 1998 PW-1 Ahmed Khan, complainant lodged a written report, Ex. P1 at Police Station Kotwali, Tonk alleging therein that while his grand son Kafil along with PW-5 Irfan and PW-14 Arif was on way to market, appellant Mohd. Nazim called all of them at his shop and asked Kafil (since deceased) as to where the goat has eaten his male organ, where the stitches were put and that why he was defaming him. There-upon, some altercation took place between accused Nazim and deceased Kafil. The accused picked up scissor and inflicted its blow on the right side of chest of Kafil Ahmed. Arif informed the complainant about the incident happened. The complainant and his son khalil Ahmed immediately rushed to the place of incident and took kafil Ahmed to the Hospital at Tonk and got him admitted. After a short- while, the doctors declared him dead. Pw. 3 Dr. V. K. Nigam, Medical Jurist and Dr. S. P. Kothari, Medical officer conducted autopsy on the dead body and noticed: " Stab wound : Horizontally placed, Both margins (upper & lower) ragged with obtuse anglesat both corners. Direction of wound is inwards and medially. Size of wound is 3/4" x 1/' " x thoracic cavity deep. Situated on the upper 1/3rd of right chest in the 3rd intercostal space, 1 & 1/2" rt. lateral to mid-line, lateral end of the wound is `" above and medial to rt nipple. " In the opinion of the doctors the death occurred due to haemorrhagic schok caused by injury to aorta leading to excessive bleeding, shock and death. The accused, after due investigation, was charge sheeted for offence under Sec. 302 IPC in the court of learned Chief Judicial Magistrate, Tonk, who, upon finding a prima facie cause exclusively triable by the Court of Sessions, committed the appellant to the Court of Sessions. The case came to be tried by the Special Judge, Communal Riotes Cases, Tonk. The learned Special Judge, after hearing counsel for the accused and the Public Prosecutor, framed charge against the accused appellant under Sec. 302 IPC. The accused denied the charge and claimed trial.
(3.) THE prosecution, in support of its case examined as many as 14 witnesses and exhibited various documents. THEreafter, accused was examined u/sec. 313 Cr. P. C. THE accused in his explanation has admitted to have inflicted scissor blow in exercise of the right of his private defence, at his shop. He further explained that he had made a complaint to Ahmed Khan (grand father of deceased), thereupon, Kafil came to his shop and started belabouring him by a stick (danda ). Scissor was lying in the shop, which came in his hand and that he defended himself by inflicting blow by scissor. In his written statement under Sec. 233 (2) Cr. P. C. the accused has stated that Kafil, Arif and Arsad came to his shop on 12. 8. 98 at 3-3. 30 PM and Kafil aggresively asked him as to why he made his complaint to his grand father. He replied that since he used to tease him, therefore he complained. Thereupon, Kafil started beating him by a `danda'. He ran inside the shop, Kafil chased him and caught his neck and by holding his neck, tried to take him out. He got suffocation and tried to get rid of his clutches, but the deceased had strongly caught him. In the mean- time, a scissor lying on a machine came into his hands and he struck that scissor on kafil. He further started that he is not aware as to where the scissor hit. He stated had the scissor been not in his hand, he had apprehended danger to his life as he was feeling suffocation. At the conclusion of trial, the learned trial Judge found the appellant guilty of having committed offence u/sec. 304 IPC and accordingly convicted him for offence u/sec. 304 Part I IPC and sentenced him as indicated above. It is against this judgment of conviction and sentence that the appellant has preferred this criminal appeal. ;