- (1.) THIS is a criminal revision under Section 397 Cr. P. C. against the judgment dated 6. 10. 1982 of Additional Sessions Judge, Jhallawar in Appeal No. 32 of 1982.
(2.) ON 19. 12. 1972 a complaint was lodged by one Kahiram alleging that on 15. 12. 1972 at about 5. 00 P. M. when he was drawing water by CHARAS Madan his son-in-law started beating his daughter Shanti. Kahiram went there and tried to appease Madan. Madan waved his Kulhari and injured the right cheek of Kahiram and another accused Shiv Lal inflicted an injury by the butt of the gun on the back of the Kahiram which made him fall down. Madan inflicted an injury by Kulhari on the nose of Kahiram and kept on beating him by the blunt side of his Kulhari so he became unconscious. After this complaint the investigation was done and ultimately the challan was filed. The accused has been convicted under Section 326 I. P. C. The principal submission of counsel for the petitioner Madan Mr. Garg who appeared and argued earlier & Mr. Jain who lateron repeated his argument is that in fact Madan received injury and for that purpose Kahiram has already been convicted in a cross case for sections 323 and 324 IPC and probation has been granted. It was argued that in view of this Madan acted in self defence and no offence is made out. It was also argued that theory of free fight has been wrongly invented by the two courts below. It was also argued that the story put up is absolutely false and concocted and for that purpose false evidence has been created and false site plan has been prepared. The learned Public Prosecutor vehemently opposed the revision application. According to him the revisional jurisdiction cannot be converted into appellate jurisdiction for the purpose of re-appreciation of the evidence like original court or appellate Court. It was pointed out that Madan is the son in law and Madan gave injury by axe on the nose which is a vital part of the father-in-law. It was pointed out that in both the cases as would be obvious the main question on the issue arose was that Madan wanted to forcibly take his wife the daughter of Kanhaiya, when she resisted then force was used. The try of which attracted Kanhaiya. I have carefully gone through the record referred to by the learned counsel for the parties and have also given a thoughtful consideration to the rival contention of the learned counsel for the parties. There is no doubt in my mind that the appreciation of the evidence by both the courts is justified and correct. There is no reason to dis-believe the statement of Kanhaiya and his daughter against Madan in addition to others. The Medical evidence corroborated. Now the question is whether in the right of private defence alleged by Mr. Jain such injuries could be caused. I am of the opinion that Madan could not treat his wife as chattel and as per the statement of Shanti, Madan wanted to take her forcibly. No person and no citizen under the Constitution of India, can be allowed to forcibly take his wife even though she may be a married wife.
(3.) THAT being so, if on the resistance by Shanti the petitioner Madan Lal wanted to use force or used force that too Madan cannot claim right of private defence, but it is the other way. Shanti and his parents could resist Madan from doing so and if Madan on account of that started beating by an axe Madan cannot be allowed right of private defence. It is true that Madan received injuries. That was obvious a natural phenomena when after causing injuries to father-in-law and that too by an axe, who simply intervened, Madan could not have been rewarded or praised for that. Whatever it may be the finding of the lower court that it was a case of free fight lateron appears to be correct and justified. Mr. Jain invited my attention to the judgment of this Court Rajasthan Cr. Cases (Vol. 57) 1982 in which it has been according to Mr. Jain pointed out that the duty of the prosecution is to explain the genius and the origin of the occurrence and further the injuries of the accused. If the prosecution fails to do so then various types of inferences can be drawn. In fact this is the decision of Hon'ble Supreme Court in Laxmi Singh Vs. State of Bihar (1 ). ;