SAXENA, J. - (1.) - This appeal has been filed by the State against the judgment dated 14. 7. 77 passed by the learned Sessions Judge, Pali, whereby he acquitted the accused- respondent of the offence u/s. 302 IPC.
(2.) THE relevant facts for disposal of this appeal lie in a narrow compass. PW 1 Ram Gopal had four sons including deceased Shiv Narain and respondent Banshilal. His other two sons used to live separately, while deceased and the respondent were living with their father Ram Gopal. On the ill-fated night on 19. 3. 77 at about 10 P. M. , Shiv Narain and Ram Gopal came together from the market. Respondent Banshilal was sleeping on the floor of the 'pol' of the house. It is the case of the prosecution that Ram Gopal went upstairs for sleeping. Shiv Narain accidentally touched the leg of Banshilal, who was sleeping, and that gave rise to an altercation between them. THEreupon, Ram Gopal came downstairs and intervened and separated Shiv Narain and respondent Banshilal, who were grappling with each other. It is alleged that suddenly respondent took out a knife from his bed and inflicted a knife blow which landed on the chest of Shiv Narain. THEreupon, Shiv Narain raised an alarm to the effect that Banshilal had dealt a knife blow to him and that he would go to the Police Station to report the matter. It is further the case of the prosecution that during this altercation between two brothers, PW 1 Ram Gopal also received blood stains on his shirt. Shiv Narain after being injured went out of the 'pol' and came on the street, where he fell down near the house of one Ganpat Lal. THEreupon Ram Gopal raised an alarm but none of his neighbours came there. Ram Gopal's younger brother PW 2 Lala came there and both of them found that Shiv Narain had succumbed to his injuries. THEreafter, they put the dead body of Shiv Narain on a cot on 'chabutari' of Ram Gopal's house. Meanwhile, PW 15 Mod Singh, S. H. O. , P. S. , Pali received a telephonic message at about 10. 30 P. M. to the effect that dead body of Shiv Narain was lying on the road. THE informant, however, did not disclose his name. Since the said information was vague and incomplete, Mod Singh recorded the same in the daily diary as Ex. P. 23 and immediately reached the spot, where PW 1 Ram Gopal submitted a written report Ex. P. 1. THE same was sent to the Police Station through L. C. Mahendra Singh, where on the same night at 11. 45 P. M. formal F. I. R. Ex. P. 15 was drawn and a case was registered. Accused -respondent Banshilal was sitting there near the dead body of deceased Shiv Narain, who was arrested. Mod Singh prepared the autopsy report of deceased, inspected the site and prepared site plan Ex. P. 4 and memo thereof Ex. P. 5. He found the blood stains lying scattered on street as well as on 'chabutari' of Ram Gopal's house as also inside the 'pol'. He seized and sealed the blood stains and the blood stained half pant of deceased. Pw 14 Dr. G. K. Vyas conducted the post mortem examination of the dead body of Shiv Narain. He found a stab wound 0. 6" x 0. 3" oblique along the rib direction on fifth left intercostal space. That wound was penetrating in the chest going deep causing injury to the left lung and the right side of ventricle. He also noticed abrasions on the right neck, right eye brow, right elbow and right leg of deceased. Doctor Vyas as per post mortem examination report Ex. P. 21 opined that the cause of death was sudden haemorrhage due to stab wound puncturing heart and the left lung. Dr. Vyas also examined the injuries of respondent Banshilal and found and incised wound over the palm of left hand. He also noticed four abrasions on the left mandible angle over the left of neck, on the right thumb, on the left patella and on the right knee of respondent. It is alleged that ten days after his arrest, respondent on 30. 3. 77 made a disclosure statement to the Investigating Officer and that in pursuance thereof got recovered one blood stained knife (Article 4) from an open shelf inside the 'pol' vide recovery memo Ex. P. 20, which was seized and sealed by the investigating Officer. Eight sealed packets containing pant of respondent, blood smeared soil and the control sample taken from the place of occurrence, dried blood scrapings, shirt of PW 1 Ram Gopal, half pant of deceased and the knife were sent to the State F. S. L. Rajasthan, Jaipur. The Seralogist, F. S. L. vide his report Ex. P. 26 opined that the aforementioned articles except the control sample were stained with human blood & that the shirt was stained with 'b' group blood. However, the blood group of blood stains found on respondent's pant and recovered knife could not be detected due to disintegration. After completion of investigation, the police submitted a challan against the respondent in the Court of MJM, Pali, who committed the case to the learned Sessions Judge. Accused respondent pleaded not guilty and claimed trial. To prove its case, the prosecution examined as many as fifteen witnesses. The accused respondent in his plea recorded u/s. 313 Cr. P. C. denied that he had any altercation with his brother Shiv Narain (deceased ). He, however, admitted that he had received injuries on his hand. He denied to have given any information and got recovered knife (Article 4 ). He asserted that on the night of the alleged incident, he was sleeping; that one person knocked the doors of his house; that thereupon, he opened the doors; that that person told him that since Shiv Narain used to hurd abuses to him, he would kill him. He asked that person to go away and to come in the next morning. The respondent further asserted that thereupon that person inflicted a knife blow causing a through and through injury on his palm; that in the meanwhile, Shiv Narain also came there, who grappled with that person and that thereupon that person dealt a knife blow to Shiv Narai,. who succumbed to his injuries. However, in his defence, he did not examine any witness. After trial, the learned Sessions Judge by his impugned order found that there was no direct evidence of the alleged incident; that the alleged recovery of knife did not inspire any confidence; that the deceased was an insane person and that the accused respondent had a right of private defence. He, accordingly, acquitted the respondent. Hence this appeal. We have heard Mr. Bohra, learned P. P. and Mr. T. S. Champawat, learned counsel for the respondent at length and perused the record of the lower Court in extenso.
(3.) MR. Bohra has vehemently contended that it is true that the alleged eye witness PW 1 Ram Gopal has turned hostile still then the presence of the respondent at the place of occurrence and the altercation between the deceased and the respondent stands firmly established by the circumstantial evidence; that the respondent had inflicted a knife blow on the vital part of the deceased which resulted in latter's death; that knife was also recovered at the instance of the accused respondent and, therefore, the learned trial Judge has committed illegality in disbelieving the recovery of the knife and holding that the respondent had a right of private defence. According to him, the prosecution by adducing clear, cogent and convincing evidence has successfully brought home the offence u/s. 302 IPC against the respondent. The learned counsel for the respondent has supported the impugned judgment and reiterated the reasonings given by the learned trial Judge. We have given our most anxious and thoughtful consideration to the rival submissions made before us. ;