S. S. Byas, J. - (1.) The State has come-up in appeal against the judgment of the learned Sessions Judge, Udaipur dated July 4, 1974, by which accused Chhagana was acquitted of the offence under section 302, I.P.C.
(2.) Briefly stated, the case set-up by the prosecution is that in the night between 4th and 5th October, 1973, deceased-victim Karna went to the house of the accused. When the accused returned from another village and entered his house he found Karna in a compromising position with his wife. Karna and the accused's wife Mst, Punki were sleeping on the same cot and both were in a compromising position. The accused thereupon struck a blow of Lathi on the fore-head of Karna. Karna left the place and went to his house. There he narrated the story of his being struck a blow with a Lathi to his wife Mst. Harma. Karna, however, did not survive and passed away. A report of the incident was lodged at Police Station, Bhikerni at about 11.30 A.M. on October 6, 1973. The police registered a case and proceeded with investigation. The post-mortem examination of the victim's dead body was conducted by Dr. Garg, who found the following injury on his body:- "A superficial lacerated wound situated 2 above the left eye-brow on the frontal bone of the left forehead 1/2"" x 1/4". Edges were capping." In the opinion of Dr. Garg the cause of death was due to injury on the skull bringing about peri cranial haematoma of the scalp, comminute fracture of the cranium resulting into cerebral concussion of the brain and syncope and due to accompanying subcutaneous of scalp, face and neck. The accused was arrested and in consequence of the information furnished by him, a Lathi was recovered. On the completion of investigation, the police submitted a challan in the Court of learned Munsif Magistrate, Udaipur, who, in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed a charge under section 302, I.P.C. against the accused, to which he pleaded not guilty and claimed to be tried. In support of its case, the prosecution examined ten witnesses and filed some documents. In defence, no evidence was adduced. In his statement recorded under section 313, Cr.P.C., the accused stated that when he reached his house in the night, he found the deceased Kama sleeping with his wife on a cot. The deceased was in a compromising position with his wife. Seeing him, the deceased got-up all of a sudden. The deceased had a knife in his hand and he rushed towards him (accused). In order to relieve the deceased of the knife, he (accused) threw a lathi towards him The deceased thereafter left the place and ran away. On the conclusion of trial, the learned Sessions Judge found no incriminating evidence to substantiate the charge against the accused. The accused was consequently acquitted. The State, now, challenges the acquittal.
(3.) We have heard Dr. S.S. Bhandawat learned Public Prosecutor and Mr. H. S. Sidhu for the accused. We have also gone through the case file carefully.;