I.S.ISRANI, J. - (1.) THIS Criminal Appeal, under Section 374, Cr.PC has been filed against the judgment and order dated December 17, 1986, passed by learned Additional Sessions Judge No. 1, Jaipur City, in Sessions Case No. 13/1986, (State v. Naresh Kumar) where by the appellant has been convicted for the offence under Section 302, IPC and sentenced to imprisonment for life and fine of Rs. 500/ -. In default of payment of fine, the appellant has to undergo further imprisonment for three months.
(2.) THE incident took place on Sept. 26, 1984, at 7.45 p.m., thereupon Jugal Kishore went from the Hospital to the Police Station and lodged a report Ex P 2, on the same day at 8.30 p.m. on the basis of which Ex.P 3, FIR was chalked out. As stated in FIR deceased Kedar did work of Mistri in the factory of his brother -in -law Mangi Lal. Accused appellant was friend of Mangi Lal and both of them took drinks and moved about together. The entire expenditure was borne out by Mangi Lal. Deceased Kedar is alleged to have told the accused appellant that why he was running the home of his sister. On this account it is alleged that quarrels have taken place earlier also due to this reason the accused appellant is alleged to be bearing animosity against deceased Kedar. It is further stated in FIR that on September 26, 1984 at about 7.45 p.m. informant was standing on the shop of Parashar Pan Bhandar, situated in Barah Bhaiyou Ka -Choraha, for purchasing Pan. Deceased Kedar was standing on the shop of Hari Kishan, PW 1 for purchasing milk. In the meantime the accused appellant came on his motor cycle bearing No. RSM 4068, from the side of Chandpole and called Kedar, who came to him for a minute. When Kedar reached, accused appellant after crossing the road, put the motor cycle on its stand and gave several blows with his knife to the deceased and injured him. Kedar fell down and the accused appellant ran away on his motor cycle. Several persons had seen the incident. On the basis of the above report, a case under Section 302, IPC was registered against the appellant at Police Station Kotwali, Jaipur City and he was arrested on September 27, 1984. The Police after usual investigation submitted the charge sheet and the accused appellant was committed to the court of Sessions Judge, Jaipur City. The case was subsequently transferred to the trial court and after recording evidence both the sides and hearing the arguments, the trial court convicted and sentenced the appellant as mentioned above. The main contention of Shri N. C. Choudhary, learned Counsel for the appellant is that the appellant was entitled to right of private defence as is proved from the evidence on record. The occurrence is admitted and it is also admitted that injuries were caused by the accused appellant to deceased Kedar, on account of which he died. The contention of learned Counsel is that it was deceased Kedar, who was aggressor and caused injuries to the appellant, on account of which he had to inflict the injuries on the person of deceased Kedar in self defence. Since this is the main contention raised on behalf of the appellant, it is not necessary to go through the entire evidence to prove that the occurrence had taken place as per version of the prosecution. The next contention raised by the learned Counsel is that the prosecution has failed to explain the injuries sustained by the accused appellant during the occurrence, therefore, he is entitled to be acquitted on this ground also. It has deen pointed out by the learned Counsel that PW 1, Hari Kishan has stated in his statement that appellant came from Chandpole Bazar on his motor cycle on opposite side of the road on his shop. He got down from the motor cycle and kept it on its stand He has also stated that occurrence took place all of a sudden, therefore, he became nervous He has further stated that deceased Kedar came to buy milk from his shop but he had, no utensil with him. He further stated that when the accused appellant was running, at that time some one from the persons who had gathered at the spot, gave him a blow on his head How ever he is not able to say how many injuries wete caused to the accused appellant by the persons who had gathered at the spot. He has denied the suggestion in cross examination that persons accompanying deceased Kedar gave Lathi blow on the bead of the appellant in the first instance and simultaneously deceased Kedar also gave Lathi blow on the head of the appellant, on account of which the appellant received injuries. It is also pointed out by the learned Counsel that this witness had also stated that Mangi Lal brother -in -law of the deceased and appellant were friends and used to move about together and also took drinks together, the expenses of which were borne by Mangi Lal. Deceased Kedar used to tell the appellant that he should stop doing so and should not ruin the home of his sister like this. On this account, on earlier occasions also, quarrels have taken place between them. It is further pointed out by the learned Counsel that PW 2 Gopal Lal has stated in his statement that when the accused appellant was going away on motor cycle, he fell on the road, on account of which his foot was injured. It is pointed out that how ever, in Ex P2 this version has not been given by the witness when his statement under Section 161 Cr.PC was recorded. PW 3 Ramakant, in the first instance has stated that he had seen the clothes of accused, which Were blood stained but he has subsequently stated that he had seen the clothes of deceased Kedar with blood and not of the appellant. He had also stated that when the appellant was running away after causing injuries to the deceased, some one of the person who bad gathered there gave a Lathi blow on the head of appellant. PW 5 Jugal Kishore has stated that the appellant and Kedar deceased continued to fight for few minutes During the scuffle, appellant took out some thing from the bag, attached with his motor cycle. He has stated that he did not see any one causing injuries to the appellant. He has also stated that in the first instance, he verbally informed the Police about the incident and thereafter gave the same in writing. He has also stated that his verbal version was not written down by the Police. This witness has also stated that deceased had been telling the appellant not to take drinks with Mangi Lal, his brother -in law, as he was ruining the home of his sister in this way. On this account, quarrels have taken place earlier also between the appellant and the deceased the above evidence, it is contended by the learned Counsel that the witnesses are not giving true version of the incident. According to him, it is unnatural that when appellant was pass on his motor cycle, he would stop and call deceased Kedar to his side of the road. It is stressed that it was Kedar and his friends, who stopped the appellant while he was passing on the motor cycle and went to him and assaulted him. They were aggressors and injuries were caused by deceased Kedar and his friends in the first instance on the appellant, thereafter, as per the learned Counsel, the appellant took out a paper -cutter from -the bag, attached with his motor cycle and caused injuries to the deceased Kedar in his self defence. It is also pointed out that the prosecution witnesses have not explained the injuries caused to the appellant. The version given by this eye -witness is unreliable and unnatural. It is also stressed that the verbal version of the information given by the informant PW 5 Jugal Kishore has been suppressed by the prosecution which makes the whole version of the prosecution doubtful. It is also pointed out that Mangi Lal brother -in -law of the deceased has been exaimned as PW 6, who has clearly stated in his statement that the liquor was purchased by the appellant himself from the shop. It is pointed out by learned Counsel that DW 1 Basant Kumar stated that he asked appellant to stop when be found him passing on the motor cycle on the out side of the shop where the deceased was standing. Thereafter the deceased moved towards appellant and picked up quarrel with him. Similarly DW 2 Sunil Kumar has also stated that when appellant was passing on his motor cycle, some one from -five persons standing outside the shop,o asked him to stop and vent towards him. It is, therefore, urged by the learned crunsel that it is deceased Kedar and his other friends, who are aggressors and deliberately stopped appellant while he was passing on his motor cycle and they bad conspired together to cause injuries to him and with this object inflicted Lathi blows on his head, on account of which the appellant bad to take out the paper cutter from his bag, for his self defence.
(3.) THE contention of Shri G.C. Chatterji, learned Government Advocate and Shri N.L. Tiberwal, appearing for the complaint is that the contention of the appellant that no explanation has been given regarding the injuries caused to him is factually incorrect. All the eye -witnesses have given proper explanations regarding the injuries caused to the appellant as is evident from the statements discussed above. It is further pointed out that in the facts and circumstances of the case, when it is proved beyond any shadow of doubt that the appellant was author of the fatal injuries caused to the deceased Kedar it is not necessary for the prosecution to explain the injuries caused to the appellant, even though as stated above the same has been done. It is further pointed out by the learned Counsel that all the eyewitnesses have correctly stated that the alleged injuries caused to the appellant were given by some one of the the persons, who gathered on the spot while the appellant after fatally injuring the deceased was trying to run -away on his motor cycle. It is also pointed out that the witnesses have given correct version of the incident when they have stated that in the first -instance the appellant tried to start his motor cycle but he could not do so and the motor cycle fell on the road injuring his own foot. Thereafter the appellant, without starting the motor cycle tried to run away along with motor cycle on foot. It is further pointed out that presence of DW 1 Basant Kumar, at the time of the occurrence took place, has not been suggested to any of the eye -witnesses produced by the prosecution. This witness was also not examined by police under Section 161 Cr. PC It is, therefore, for the first time that he has appeared in Court to give his statement in favour of the appellant. Similar is the case of DW 2 Sunil Kumar, whose presence was also not suggested to any of the prosecution Witness while they were examined. It is further pointed out that this witness, in his examination -in -chief has stated that the accused appellant inflicted injuries on deceased Kedar with a leaver of the motor cycle. It is pointed out that the injuries sustained by deceased include six stab and two incised wounds, which cannot be caused by a leaver of motor cycle, which is a blunt object. It is, therefore, contended that the version given by the defence witnesses is unreliable. Their presence is doubtful. In view of the true version given by the eye -witnesses produced on behalf of prosecution, it is fully proved beyond any shadow of doubt that it was appellant, who stopped his motor cycle and deliberately called deceased Kedar and caused fatal injuries to him.;