CHAUHAN, J. - (1.) THE appellants have challenged the judgment dated 18. 10. 84 passed by the Addl. Sessions Judge No. 1, Kota whereby the learned judge has convicted them for offence under Section 307 Indian Penal Code (`ipc' for short) and has sentenced them to five years of rigorous imprisonment and has imposed a fine of Rs. 2,000/- and directed them to further undergo a simple imprisonment of six months in default of payment of the fine.
(2.) THE brief facts of the case are that statement of Mohan Lal (PW. 1) was recorded on 29. 8. 79 in the hospital by Bashir Mohammed, Sub-Inspector and were entered into a `rojnamacha'. On the same day, on the basis of the `rojnamacha', a formal FIR was registered for offence under Sections 452, 307 read with Section 34 of IPC against the appellants and against to other co-accused persons namely Santosh Kumar and Prithviraj. According to the FIR, the complainant's father, Goverdhan Sahai and his elder brother, Bharat Kumar, were sitting in their shop located at Bazar No. 1, Ramganj Mandi, Kota. Around 1. 15 P. M. , the complainant was returning to the shop after picking up `pan'. When he reached near the shop, he saw that Mohan Lal Soni, Telephone Operator, Santosh Kumar, Suresh Kumar Luthra and Prithviraj had entered in the shop and were assaulting his father, his brother and his maternal uncle. He rushed to their rescue. Suresh inflicted a knife blow on his back. Mohan Lal Soni struck his father on his back with a knife. Suresh Kumar struck his brother, Bharat, on his side with a knife. He further claimed that the accused persons had assaulted others with knife also. He further alleged that the accused appellants were carrying two big knifes with them. According to him Lal Chand, Ramniwas, Laxman Lal Maheshwari, Praveen Chadn and Daya Ram and others rushed to their rescue. THEreupon, the accused appellants ran away from the place. According to him this incident had taken place because of an old animosity which has existed because of certain matrimonial disputes between the families. After a thorough investigation, the police submitted a challan against the four accused persons namely Mohan Lal, Suresh Kumar, Santosh Kumar and Prithviraj. In order to support its case, the prosecution examined sixteen witnesses and submitted a large number of documents. In order to support its case, the defence examined two witnesses and also submitted a number of documents. After going through the oral and documentary evidence, the learned trial Court acquitted Santosh Kumar and Prithviraj of offence under Section 307 and 452 IPC. It also acquitted the present accused appellants of offence under Section 452 IPC. But, it convicted and sentenced the present appellants for offence under Section 307 IPC as aforementioned. Hence this appeal before this Court. Mr. A. K. Gupta, the learned counsel for the appellant, has vehemently argued that out of the same incident while an FIR was lodged by the complainant party in the present case, Mohan Lal, the accused appellant No. 1, before this Court, had filed a criminal complaint against the complainant in the present case. Thus, two cross cases existed which were tried separately by the learned trial Court. Secondly, the place of occurrence has been changed by the prosecution. According to the prosecution the place of occurrence is said to be inside the shop owned by Goverdhan Sahai. However, according to few witnesses, the incident is said to have taken place outside the shop. Thus, there is an uncertainty about the place of occurrence. Thirdly, although the accused appellants have sustained injuries, the prosecution witnesses have not explained the injuries suffered by the accused appellants. Therefore, the prosecution witnesses are untrustworthy witnesses. Lastly, since the accused appellants were assaulted by the complainant party, the appellants had caused injuries to the complainant party in order to defend themselves. Therefore, the learned counsel has pleaded the right of private defence. On the other hand, Mr. Arun Sharma, the learned Public Prosecutor, has argued that Jayanti (PW. 13) had clearly stated that the occurrence had occurred inside the shop. Moreover, the accused appellants have never invoked the right of private defence during the trial. Thus, they cannot be permitted to plead the right of private defence at the appellate stage. Furthermore, the injuries suffered by the accused appellants are superficial in nature. Therefore, they need not be explained by the prosecution. Moreover, the non-explanation of the injuries sustained by the accused appellants is not fatal to the case of the prosecution. We have heard the learned counsels for the parties, have perused the impugned judgment and have examined the record.
(3.) BOTH the complainant party and the accused appellants are in agreement that the alleged occurrence had occurred at 1. 15 in the afternoon. In the FIR lodged by Mohan Lal (PW. 1) he had claimed that the assault had taken place inside the shop. However, neither Mohan Lal (PW. 1) nor Bharat Kumar (PW. 2) nor Govardhan Sahai (PW. 3) stated in their testimony before the Court that the assault had occurred inside the shop. In fact Laxman Das (PW. 4) clearly states that the assault had occurred outside the shop. According to the site plan the assault had occurred inside the shop. But the site plan has not been supported by the witness of site plan, namely Jayanti (PW. 13 ). Thus, there is an ambiguity about the place of occurrence. Even the learned trial Court had concluded, and according to this Court rightly so, that there is an uncertainty about the place of occurrence. Hence the prosecution has failed to prove the actual place of occurrence. According to the injury Report of Mohan Lal (Ex. D. 6) he has suffered seven injuries as follows:- 1. Incised would 2" x 1/2" x 1/3" on the head in the middle of head transverse direction tail of wound towards left side extending on both the parietal bones. 2. Lacerated wound 11/2" x 1/3" x 1/4" on the left side of occipital region of the head. 3. Incised would 1" x 1/4" x 1/4" on the lateral angle of the left eye brow tail of the would towards lateral side. 4. Lacerated would 1" x 1/2" x 1/4" on the upper side of the fore head. 5. Abrasion 1" x 1/2" on the lateral aspect of left upper arm. 6. Bruise 2" x 1/2" on the lateral aspect of the right leg lower one third. 7. Bruise 2" x 1/2" on lateral aspect of left buttock. Similarly, the other co-accused person namely, Prithviraj (although too has been acquitted in the present case by the trial Court) he too had suffered nine injuries as under:- 1. Incised wound 3" x 1/2" x 1/2" along the middle line anterior aspect of the head at the side of union of both the parital bones tail of the would on the anterior side. 2. Lacerated would 2" x 1/2" x 1/2" on the middle of posterior aspect of head occipital region. 3. Lacerated wound 1-1/2" x 1/4" x 1/4" on the left side of occipital region of the head. 4. Incised wound 1" x 1/4" x 1/4" on the anterior aspect of the left side of fore head tail of the would on the lateral side. 5. Abrasion 1" x 1/2" on the right parital region of the head. 6. Bruise 1" x 1/2" on the right shoulder lateral aspect. 7. Abrasion 1" x 1/4" on the anterior aspect of left knee joint. 8 Bruise 2" x 1" on the right side of the abdomen anterior aspect. 9 Bruise 2" x 1" on the posterior aspect of the chest right side. ;