JAS RAJ CHOPRA, J. - (1.) THIS appeal directed against the judgment of the learned Addl. Sessions Judge, Sriganganagar dated Feb. 21, 1978 where by the learned lower court has held the accused appellant guilty of the offences under Sections 334 and 335 IPC and has sentenced him to 1 year's rigorous imprisonment for the offence under Section 335 IPC. No separate sentence was recorded for the offence under Section 334 IPC. The accused has, however, been acquitted of the offence under Section 307 and 308 IPC.
(2.) THE facts necessary to be noticed for the disposal of this appeal, brieflly stated are that on 28 -4 -1977 at about 6.00 p.m. Sarwan Singh, who has been examined as PW 1 and who belongs to village Tamkot which was the original village of accused Beharilal also came to Sri Ganganagar as the house of the accused to demand Rs. 500/ - which were due to him on the price of the cotton which was sold to him. Beharilal at that time has shifted from Tamkot and was living at Sriganganagar. It is alleged that the accused told the complainant that he will pay the amount on the next day and, therefore, he stayed for the night at the house of the accused. At about 11.30 p.m. in the night when he was struck a blow while he was sleeping, he woke up and found that the accused was inflicting blows to him with a sword. He then tried to snatch the sword from him. His cries attracted the attention of the wife of the accused and she too came and tried to rescue him. On this, the accused left the sword there and ran away. The report of the incident was lodged at Police Station Kotwali, Sri Ganganagar on the same night at 12.30 a.m. which has been marked Ex. P. 1. The injuries of complainant were got medically examined. His injury report has been marked Ex. P. 2. The X -ray examination of the injuries was also got conducted and the X -ray films have been marked Ex. P. 5 to Ex. P. 8. Site plan and Site inspection memos have been marked Ex. P. 13 and Ex. P. 13A respectively. Blood stained soil and control soil were also seized vide seizure memos Ex. P. 14 and Ex. P. 15 respectively. The sword was seized vide seizure memo Ex. P. 16. The blood stained pillow and bed -sheets were also seized vide seizure memo Ex. P. 17. Blood stained clothes of Mst. Dropadi were seized by seizure memo Ex. P. 18. The accused was arrested on 29 -4 -1977. His arrest memo has been marked Ex. P. 19. His blood stained clothes were seized vide seizure memo Ex. P. 20 and the chemical and serological reports have been marked Fx.P 22 and 23 respectively. Injuries of the accused were also got medically examined. His injury report has been marked Ex. P. 2. After the usual investigation, a case against the accused was challaned under Section 308 IPC in the court of learned Chief Judicial Magistrate, Sri Ganganagar. However, the learned Chief Judicial Magistrate committed the case for trial to the court of Sessions, Sri Ganganagar from where it was transferred for trial to the court of learned Addl. Sessions Judge, Sri Ganganagar. The accused did not plead guilty to the charge and claimed trial whereupon the prosecution examined as many as 9 witnesses in support of its case. The statement of the accused was recorded. He gave the explanation that initially, he was living at Tamkot but the complainant Sarwan Singh has developed illicit relations with his wife. Aggrieved due to this conduct on the part of his wife and Sarwan Singh, he left village Tamkot and settled at Sri Ganganagar. On the fateful night when he reached his home at 10 or 10.30 p.m. after his daily work, he found accused Sarwan Singh committing rape with his wife. He asked him not to do so where upon Sarwan Singh attacked him with the sword by which he received injuries and in retaliation, he inflicted these injuries to the accused. He examined DW 1 Mukund Singh in his defence who happens to be a close neighbour of his house. After hearing the parties, the learned lower court came to the conclusion that the story put forward by the complainant that he was staying at the house of the accused with the intention of collecting the money which was due to him from the accused does not appear to be credible. It has rather held that the story put forth by the accused that he saw the complainant and his wife in a compromising position and on account of that, he received grave and sudden provocation and, therefore, in that state of mind, he has inflicted these injuries to the complainant and hence, it has acquitted the accused of the offence under Section 308 IPC. It has further held that no injury caused to the injured Sarwan Singh was likely to cause death and, therefore, even on merits offence under Section 307 IPC was not made out. It has, however, held that the injuries were inflicted on grave and sudden provocation and, therefore, offences under Sections 334 and 335 IPC are made out and, therefore, it has convicted and sentenced the accused appellant as stated by me above. Aggrieved against this judgment, the accused appellant has preferred this appeal.
(3.) I have heard Mr. B.R. Arora, learned counsel for the accused appellant and Mr. B.C. Bhansali, learned Public Prosecutor for the State. I have also meticulously gone through the record of the case. Now, I have to decide whether the findings of the learned lower court can be sustained on the basis of the record of the case or not ?;