- (1.) THIS appeal filed by Gangada is directed against the judgment of the learned Additional Sessions Judge, Jalore, dated 4-3-1974, convicting the appellant under Section 304, Part I, I. P. C. and sentencing him to undergo rigorous imprisonment for ten years.
(2.) THE relevant facts, giving rise to this appeal, may be shortly stated as follows: In the afternoon of 31-8-1973, Ram-kin deceased was grazing his camel in the field of Deoji Kalbi, which was situated to the east of Gangada's field at the outskirt of village Dadusan. Amalakh and Bhinya also were present with their camels in the same field at some distance, Teja son of Dhuda, Ladu and another Teja son of Kheta were collecting grass in a nearby field of one Gangada Bhambhi. At that time, the appellant came to the field of Deoji Kalbi and picked-up a quarrel with Ramkin deceased over some money, which the latter owed to the former. During the course of wordy quarrel, Gangada appellant attacked Ramkin and inflicted several blows on his body with a cane-stick. The deceased raised an outcry, e. g. 'beaten, beaten', which attracted Amalakh, Bhinya, Ladu, Teja son of Dhuda and Teja son of, Kheta to the place of occurrence. All those five witnesses saw Gangada causing injuries to Ramkin deceased with a stick. The first blow fell on the left shoulder of Ramkin, the second fell on his left knee and the third hit him on his head. As a result of these blows, Ramkin fell down unconscious. The witnesses rushed towards the deceased but when they were hardly about 2 or 3 paces away from him, the accused disappeared from the place of occurrence. The deceased was found bleeding from his head injury. Teja son of Dhuda and Teja son of Kheta removed Ramkin to his house and stayed with him during the night. Ladu also reached there with the camels of Ramkin. At about midnight the deceased succumbed to his injuries. On the next morning Teja son of Kheta lodged a written report of the incident with Amar Singh. Head Constable at Police Station, Sarwana. A criminal case under Section 302, I. P. C. was registered on the basis of the first information report made by Teja son of Kheta. The police made the usual investigation into the case and, after collecting necessary evidence, sent the dead body of Ramkin to the Medical Officer, In-charge of the Primary Health Centre, Sanchore, for post-mortem examination. Dr. Ramesh Chandra Purohit conducted postmortem examination on the dead body of Ramkin and found the following three injuries: 1. lacerated wound 5 cm X 9 cm on the right side of frontal bone region 7 cm from the right eye brow 11 cm from right external ear 5 cm right to the mid-bone and parallel to it; 2. abrasion 1 cm X 1 cm on the antero-superior aspect of left shoulder joint.
(3.) CONTUSION 6 cm X 3 cm across the upper half region of right side of back. In the opinion of the Doctor the death occurred due to coma caused by extra-dural haemorrhage. The appellant was. therefore, challaned in the court of the Munsiff-Magistrate, Sanohore, for the offence of murder punishable under Section 302, I. P. C. The learned Magistrate conducted an inquiry, preparatory to commitment, and upon finding a prima facie case of murder against the appellant, committed him to the court of the Additional Sessions Judge. Jalore. The learned Additional Sessions Judge tried the appellant and found him guilty under Section 304, Part I, I. P. C. and sentenced him as stated above. Aggrieved by his conviction and sentence, the appellant has come up in appeal to this Court. 3. I have carefully gone through the record and heard the arguments advanced by Mr. M. C. Bhandari, appearing on behalf of the appellant and Mr. G. A. Khan, for the State. Firstly, it has been contended before me by the learned Counsel for the appellant that Ramkin deceased was an aggressor and that he struck a lathi blow on the back of the appellant in the first instance and that the appellant apprehending imminent danger to his life and limb, hit back and inflicted a fatal blow on the head of his assailant which ultimately proved fatal. He further urged that the incident was an outcome of a sudden quarrel that ensued between the two over a sum of money which the deceased had taken on loan from the appellant. According to him, the appellant asked the deceased to return the loan, which he had secured from him, Ramkin deceased resented the demand of money and in a fit of rage attacked the appellant who, in the exercise of the right of private defence of person, gave a single blow on the head of the> appellant with a short cane-stick. In support of his above contentions, the learned Counsel for the appellant invited my attention to the plea taken by the appellant at the trial and to the evidence of Amalakh D. W. 1 whose presence at the time and place of occurrence was admitted by the prosecution itself, and cited Mohamed Habib v. Emperor AIR 1940 Pat 595 : 41 Cri LJ 520. Mr. G. A. Khan, appearing on behalf of the State. on the other hand, argued that no right of private defence of person accrued to the appellant in the circumstances of the case and that the plea taken by him in the trial court was an after-thought, because he never pleaded in the committing court that he was first attacked by the deceased and that he had a right of self-defence.;