S.S BYAS, J. - (1.) THIS is a State's appeal against the judgment of the learned Sessions Judge, Partabgarh dated March 19, 1976, whereby the accused Nathu was acquitted of the offences under Section 302 and325 IPC. The State challenges the acquittal
(2.) BRIEFLY stated, the prosecution case is that PW 1 Gotu and the accused Nathu are the sons of PW Pyara while PW 5 Smt. Nanduri is his wife. Pyara had one more son Vaina. PW 4 Smt. Shawli is the widow of Vaina. Pyara effected partition among his three sons Vaina, Gotu and the accused Nathu nearly ten years before the incident. Gotu and Vaina were living in a separate Gawari while the accused was living in another Gawari Pyara and his wife lived in that Gawari in which the accused lived Pyara has a daughter Tulchha by name. Vaina is the deceased victim in the case. In the morning on August 1, 1975, PW 4 Smt. Shawli went to the house of Pyara to make inquires about the ailment of Tulchha. The wife of the accused did not allow her to come inside. Shawli went back to her house and from there she went to her fields. Shawli complained to her husband Vaina that she was not allowed by the wife of the accused to enter the house and make inquiries about the ailment of Tulchha. At about 5.00 pm on the same day, Vaina left the the fields and went to his house After tethering his bullocks in the enclosure, he went to the house of the accused and told him as to why his wife had not allowed his (Vaina's) wife to enter the house and make inquiries about the ailment of Tulchha. This infurated the accused, who had a lathi in his hand at that time. The accused struck a blow on the left side of the head of Vaina. Vaina fell down with a bleeding wound on his head. There was profuse bleeding from his head injuiry. The accused again lifted his lathi to strike a blow to Vaina, but the blow did not hit him PW 1 Gotu tried to intervene and the accused struck a blow of lathi on his right hand resulting in the fracture of his left finger. The villagers tried their indigenous methods to save Vaina but he did not survive and passed away nearly after an hour. Many persons collected on the spot. They drew up report Ex. P 4 and sent it with PW 1 Gotu to the police Station, Nikumb, where he reached at about 6 00 a.m. on the next day. He presented the written report Ex. P 4 before the Station House Officer, who registered a case and proceeded with the investigation. The Station House Officer Mohan Lal PW 9 arrived on the spot, prepared the inquest report of the victim's dead body, inspected the site and prepared the site plan. The post -mortem examination on the victim's dead -body was conducred on August 2, 1975 by the Medical Officer Incharge, Government Hospital, Bari Sadri. The doctor noticed a fracture of frontal and left parietal bone. The frontal bone had the depressed fracture. In the opinion of the doctor, the cause of the death of the deceased -victim was shock resulting from severe fracture of skull bone. The report prepared by him is Ex. P 9. The injuries of PW 1 Gotu were examined by the Medical Jurist, Government Hospital, Chittorgarh. He found fracture of proximal phalynx of middle finger of right hand. The injury report issued by him is Ex. P 3. The accused was arrested and in consequence of the information furnished by him, one lathi was recovered. On the completion of investigation the police submitted a challan against the accused in the Court of the Munsif cum Judicial Magistrate, Chotti Sadri, who, in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under Sections 302 and 325, IPC against the accused, to which he pleaded not guilty and faced the trial. Though in his statement under Section 313, Cr. PC the accused denied to have inflicted any blow with lathi to the deceased and PW 1 Gotu, he came out with a counter version. According to him, Vaina came to his house and called him out. Vaina had a lathi. Vaina asked him to leave the village with his wife. The accused asserted his right that he was living in his own house. Vaina struck a blow of his lathi on his head. PW 1 Gotu also came running with a wooden Iss. He also strnck a blow of it on his (accused) shoulder. In support of its case the prosecution examined nine witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of the trial, the learned Sessions Judge held that it was the accused who was first assaulted by PW 1 Gotu and the deceased Vaina In order to ward off further aggression and to protect himself from being further beaten, the accused struck one blow with his lathi on the head of Vaina and one blow on the hand of PW 1 Gotu. The accused had a right of private defence of person and since the danger to his life was grave and imminent, he had a right to use the force to defend himself. Granting a right of private defence of person, the learned Sessions Judge held that no offence was committed by the accused. The accused was consequently acquitted of the offences he was charged with.
(3.) WE have heard the learned Public Prosecutor and the learned amicus curiae. We have also gone through the case file carefully.;