S. S. BYAS, J. - (1.) BY his judgment dated May 30, 1980 the learned Sessions Judge, Pali convicted and sentenced the appellants as under :- S. No. Name of accused Offence Sentence awarded 1. Vijay Singh 302, IPC Imprisonment for life with a fine of Rs. 500/-, in default of the payment of fine to further undergo six months rigorous imprisonment. 307, IPC Seven years rigorous imprisonment with a fine of Rs. 250/-, in default of the payment of fine to further undergo two months life imprisonment. 324, IPC Three months rigorous imprisonment with a fine of Rs. 100/-, in default of the payment of fine to further undergo seven days like imprisonment. 2.Chandradev 323, IPC Released on two years probation of good conduct.
(2.) BRIEFLY stated, the prosecution case is that at about 9. 00 P. M. on August 30, 1977, PW ll Sohanlal informed the Station House Officer, Police Station, Pali, that some quarrel has taken place a few minutes earlier at Suraj-pole, two persons involved in it have intruded in the building of his goods transport company and that a huge mob had collected out-side. The S. H. O. Modsingh (P. W. 44) recorded this information in the Rojnamcha of the Police Station (EX. P. 48/1) and immediately arrived at Surajpole with police force. Learning there that the injured persons have been taken to the hospital, he posted some constables there on the spot and himself went to the hospital. He found there Gulam Nabi alias Gullu lying dead. P. W. 1 Lal Mohammed, PW 2 Mohammed Yusuf and PW 31 Nisar Ahmed were lying injured. He recorded the statement of Lal Mohammed, which is Ex. P. 1, It was stated by Lal Mohammed (PW 1) in Ex. P. 1 that at about 8. 30 p. m. on that day he and Mohammed Yusuf (PW 2) were sitting in a hotel at Surajpole. While they were taking tea, they heard some noise on the road. They rushed towards that place and saw accused Vijay Singh having a knife in his hand. Accused Vijay Singh inflicted injuries with his knife to Gulam Nabi alias Gulam Rusul alias Gullu. He (Lal Mohammed PW1) tried to intervene catch-hold of accused Vijay Singh. Accused Vijay Singh inflicted blows to him with his knife. Mohammed Yusuf (PW 2) and Nisar (PW 31) also tried to intervene and they too were inflicted injuries by accused Vijay Singh. Accused Vijay Singh had some companions with him. One of them struck a blow with a hockey-stick on the neck of Lal Mohammed (PW 1 ). Vijay Singh and one of his companions thereafter ran away towards the transport company. His other companions also managed to escape. PW 28 Takhat Singh arrived on the spot and he took the injured persons to the hospital, where the doctor on duty declared Gulam Nabi dead. The police treated Ex P. 1 as the First Information Report and registered a case thereon. The Station House Officer proceeded with investigation. The S. H. O. Modsingh prepared the inquest report of the victim's deadbody. He also inspected the site and prepared the site plan and site inspection memo. At about 00. 30 Hours on August 31, 1977, that is. nearly after four hours of the occurrence, the S. H. O. went to the building of Kalish Transport Company and found accused Vijay Singh and Chandra Dev taking shelter there in the godown. Both of them were arrested. The pent and bushirt, which accused Vijay Singh was wearing at that time, were found stained with blood. Both these clothes were seized and sealed and seizure memo Ex. P. 27 was prepared. He found two injuries on the person of accused Vijay Singh. Accused Chandradev, at the time of his arrest was having a hockey-stick with him. It was also seized and sealed. The post-mortem examination of the victim's deadbody was conducted at about 6. 00 A. M. on August 31, 1977 by the Medical Jurist Dr. G. K. Vyas (PW 39 ). He noticed the following ante-mortem injuries on the body of Gulam Nabi alias Gullu. External (1) Incised wound 1" x 1/2" x 1/10" spindle shaped clean margin horizontal starting 1/2" to left lateral angle of left eye going to topple. (2) Stab wound externally opendle, clear cut 1" x 1/3" along rib direction in 5th intercontal space 1" below and 1/2" to leatral of left nipple of chest, depth directed deep, medically and up. Internal All the soft tissues, muscles were cut, the pleurae was cut under the wound, chest cavity as full of blood esp. on left side, left long exeared with blood and bear a cut 3/4 x 1/4 through and through, corresponding to wound. A cut was present 1/2" x 1/6" in ventricles (left) going in cavity. " The doctor was of the opinion that the cause of death of Gullu was sudden to hemorrhage and shock due to stab wound to heart. The doctor also examined the injuries of Lal Mohammed, Nisar, Mohammed Yusuf, Amba Lal and accused Vijay Singh, on the same day and found two incised wounds and one contused swelling on the person of Lal Mohammed (PW 7) one sized incised wound on the person of PW 31 Nisar, one incised wound on the person of Mohammed Yusuf (PW2), four abrasions on the person of Ambalal (PW 1) and one lacerated wound and one abrasion on the person of accused Vijay Singh. The postmortem report prepared by the doctor is Ex. P. 36, while the injuries reports issued by him are Ex. P. 37, Ex. P 38, Ex. P 39, Ex. P 40 and Ex. P 41. The bloodstained clothes of the deceased and the injured persons were also seized and sealed. Accused Balbirsingh was arrested on July 3, 1977. At the time of his arrest, many injuries were found on his body. His injuries were examined by Dr. Vyas. Sixteen injuries, which were abrasions and contusions, were found on his body. The injury report prepared by the doctor is Ex. P 42. According to doctor Vyas, these injuries were caused by slaps and first-blows. The investigation revealed that Om Prakash, Harish Ramchandani, Balbirsingh and Mansingh had accompanied the accused Vijay Singh and Chandradev and were with them at the site of the occurrence. They were also arrested. The various seized and sealed articles were sent for chemical examination. The clothes of the deceased-victim and the bushirt and pent of accused Vijay Singh were found stained with human blood as per the report Ex. P 54 of the Serologist. The investigation further revealed that there were two factions in Government Bangar College, Pali in the election of the College Union. One of the factions sought the help of accused Vijay Singh and the other faction sought the help of PW 10 Ambalal and Chandiya. Accused Vijay Singh had his own group while Ambalal and Chandiya had their own group. The deceased Gulam Nabi was in the group of Ambalal and Chandiya. There were incidents of violence between these two groups from time to time. This rivalry in the two groups resulted in the incident. On the completion of investigation, the police submitted a challan against (1) Vijay Singh, (2) Balbir Singh, (3) Om Prakash, (4) Harish Ramchandani, (5) Chandradev and (6) Man Singh in the court of Munsif and Judicial Magistrate, Pali, who in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under sections 147. 148, 302, 307, 324/149 and 323/149, I P. C. against accused Vijay Singh, under sections 147, 148, 302/149, 307, 324/149 and 323/149, I. P,c. against accused Balbirsingh and under sections 147, 148, 302/149. 307/149, 324/149 and 323/149, I. P. C. against the remaining four accused. All of them pleaded not guilty to the charges and demanded trial. They denounced the whole prosecution story as a false and fabricated piece of concoction and claimed absolute innocence. In support of its case, the prosecution examined 45 witnesses and filed some documents. In defence, the accused examined eight witnesses. The suggestion put forward in the defence is that a quarrel took place between Ambalal (PW 10) and four or five persons of Ghosi community. Ambalal had a knife with him and inflicted injuries with it to two or three Ghosies. It was suggested that deceased Gulam Nabi and the injured persons were inflicted blows with a knife by PW 10 Ambalal and his compassions. On the conclusion of the trial, the learned Sessions Judge found no incriminating evidence against accused (I) Balbirsingh, (2) Om Prakash, (3) Harish Ramchan-dani and (4) Mansingh. He, therefore, acquitted them of the offences they were charged with. The prosecution case was taken as substantially true and proved against accused Vijay Singh. He was consequently convicted and sentenced as mentioned at the very out-set. The learned Sessions Judge found that accused Chandradev had inflicted a blow with his hockey-stick on the neck of Lal Mohammed (PW1 ). He was consequently convicted under section 323, l. P. C. , but was released on two year's probation of good conduct. The learned Sessions Judge also held that there was no case of unlawful assembly for causing the murder of Gulam Nabi. He also found no case for the applicability of section 34, I. P. C. against accused Chandradev. Aggrieved against their conviction, accused Vijay Singh and Chandradev have come-up in this joint appeal. We have heard Mr. M. M. Singhvi learned counsel for the appellants and Mr. L. S. Udawat the learned Public Prosecutor for the State. We have also gone through the case file carefully. Mr. Singhvi did not challenge the findings of facts recorded by the trial Judge against the appellants. He did not challenge the findings that the deceased Gulam Nabi was inflicted blows with a knife by accused Vijay Singh and that the other injured persons, viz. Lal Mohammed (PW 1), Mohammed Yusuf (PW 2) and Nisar (PW 31) were inflicted the injuries with knife by accused Vijay Singh. The finding of the learned Sessions Judge that accused Chandradev struck blow of his hockey-stick on the neck of PW i Lal Mohammad was also not challenged before us. The contention raised by Mr. Singhvi is that it was a clear case of the right of private defence of person. The co-accused Balbir Singh was (accuted by the court below) is a real brother of the appellant Vijay Singh. Balbir Singh was assaulted by the deceased Gulam Nabi and his companions. The appellant Vijay Singh, seeing his brother Balbirsingh being assaulted and beaten, intervened to save Balbirsingh. If in protecting his brother appellant Vijay Singh inflicted the blows with a knife, he stands completely absolved from guilt because what he did was in the exercise of the right of private defence of person. Section 96, I. P. C. and the sections following it give a valuable right to the appellant Vijay Singh to use force to throw the further attack on his brother. The learned Sessions Judge, was therefore, in error in convicting the appellant Vijay Singh for the various offences. It was argued that the appellant Vijay Singh was perfectly justified in using the force to save his brother. The exercise of the right of private defence of person completely absolve him from guilt. The conviction of the appellant Vijay Singh is, thus, erroneous and unsustainable in law. It was further argued that the prosecution witnesses have not explained the injuries found on the person of accused Balbir singh. The prosecution witnesses are further silent about the genesis of the occurrence. They have not stated as to how the occurrence started. The presence of multiple injuries on the person of accused Balbirsingh probablises the plea of private defence. Reliance in support of the contention was placed on AIR 1969 H. C 956 and AIR 1980 H. C. 660. Combating these contentions of Mr. Singhvi, it was argued by the learned Public Prosecutor that the plea of the right of private defence of person was never put forward by the appellant Vijay Singh in the trial Court. He denied his presence on the spot. The finding of the Court below is that accused Balbirsingh was not present on the spot. Since accused Balbirsingh was not present on the spot, the question of the appellant Vijay Singh's protecting him did not arise. It is, therefore, not a fit case where plea of the exercise of the right of private defence of person was available to the appellant Vijaysingh. It was also argued that even if the presence of Balbirsingh is accepted on the site and that he was assaulted by the deceased and other persons, it was no occasion for the appellant Vijay Singh to wield a dangerous weapon like knife and to cause injuries thereby. Balbirsingh, according to medical evidence received injuries by slaps and fists. The appellant Vijay Singh had, therefore, no right to use the knife. It is true that the appellant Vijay Singh has not put forward the plea of the right of private defence in his statement recorded under section 313, Cr. P. C. In his statement, he denied his presence on the spot and pleaded elibi. The question which arise for consideration is whether this omission on the part of the accused precludes him from taking the plea now in this appeal ? In our considered option, an omission on the part of the accused to specifically set-up the plea of private defence does not preclude him from raising it even for the first time in an appeal, if he is able to show from the prosecution evidence and other materials on record that he acted in private defence. It is open to the accused to deny the commission of the criminal act attributed to him and his presence on the spot. At the same time, it is also open to him to show from the record of the case that if he did the criminal act assigned to him he did it in the exercise of the right of private defence of person or property. These pleas, viz. , denial of the commission of the criminal act and elibi, though inconsistent, are permissible and the plea of right of private defence cannot be denied to the accused if available to him, simply on the ground that he did not specifically put it forward and that what he pleaded was elibi.
(3.) THE right of private defence has two aspects, viz. (1) the complete defence-totally absolving him from guilt by virtue of exemption contained in section 96 of the Indian Penal Code and (2) reducing the offence from that under section 302 to 304, I. P. C. by the applicability of exception (2) of section 300, I. P. C. We have carefully examined the findings of the trial Judge, about the presence of accused Balbirsingh on the scene of occurrence. The learned Sessions Judge, after evaluating the evidence of the parties, arrived at the conclusion that accused Balbirsingh was not present on the spot, we are unable to maintain this finding for some obvious reasons. The presence of Balbirsingh at the site has been the prosecution case throughout. The evidence of the ocular witnesses Lal Mohammed, Mohammed Yusuf, Nisar, Ambalal and Takhatsingh is that accused Balbirsingh was present throughout at the place of occurrence. In fact, the prosecution has examined Dr. Vyas (PW 39) to prove the injuries found on the person of accused Balbirsingh in order to show his presence on the spot. It would be useful to note that accused Balbirsingh had himself admitted his presence there on the spot in his statement recorded under section 313, Cr. P. C. , though he denied that he landed blows to any injured person. His absence on the spot is thus, neither the case of the prosecution nor of the defence. The learned Sessions Judge omitted to take all these factors into consideration and made out a new case which was not the case of either the prosecution or of the accused that accused Balbirsingh was not present on the place of occurrence when the incident took place. That is not permissible in law. The Court cannot make out a new case which has not been placed before it by the concerned parties. The presence of accused Balbirsingh on the spot cannot be, therefore denied. When accused Balbirsingh was arrested, as many as 16 injuries were found on his body. They were either abrasions or contusions. According to Dr. Vyas (PW 39), these injuries were caused by slaps and fist-blows. The ocular witnesses Lal Mohammed (PWl), Mohammed Yusuf (PW2), Nisar (PW31), Ambalal (PW 10), Takhat Singh (PW 28) and Abdul Salim (PW 34) have not explained the injuries found on the person of accused Balbirsingh. When pointedly cross-examined on the point, they merely expressed their ignorance. The failure of the eye-witnesses to explain the injuries on the person of accused Balbirsingh is an important circumstance which cannot be lightly brushed-aside origred from consideration. It shows that the eye witnesses have suppressed some material facts and did not put forward a true, correct and complete version of the incident. What they stated is only a truncated and lap-sided picture of the occurrence. There is reason for the eye-witnesses in not disclosing the true version of the incident. As pointed-out earliar, there was area rivalry between the two groups one led by the appellant Vijay Singh and the other led by PW 10 Ambalal. The eye-witnesses are from the group of Ambalal (PW 10 ). As such the true account of the incident cannot be expected from these interested eye witnesses. ;