G. K. SHARMA, J. - (1.) THIS appeal is directed against the judgment dated 13th May, '80, passed by the Sessions Judge. Sikar, whereby he convicted the accused-appellant u/s. 307, IPC and sentenced him to 4 years' rigorous impri- sonment and a fine, of Rs. 100/-, and in default of payment of fine, to further undergo 3 months' rigorous imprisonment.
(2.) ON 10th July, '79, at about 8. 45 AM, a written report was lodged by one Nagarmal Soni, stating therein that on that morning at about 7 o'clock, while his brother Dwarka Prasad was sitting at the shop, situated at their house, accused Damodar prasad, his father Nanda, his mother, sister, aunt and his 'bhabhi' came there. Damodar was armed with a sword, while the others were carrying lathis with them. Immediately after their arrival, Damodar and his father Nanda uttered that Dwarka prasad be done away with that day so that there would no dispute in future. Damodar then attacked Dwarka prasad by inflicting sword-injury on his head. Dwarka prasad cried and raised his left hand in defence. Damodar then inflicted another sword-blow on the head of Dwarka, but, it hit him on the palm of his left hand. All the other persons who had accompanied Damodar, were standing there surrounding his brother, and they prompted Damodar to kill Dwarka prasad. After inflicting the blows Damodar and others fled away. ON receipt of this information, a case u/ss. 307, 147, 148 & 14 , IPC, was registered. After completing usual investigation the police submitted a challan against the accused-appellant only u/ss. 307 & 326, IPC. The learned Sessions Judge framed charge against the accused u/s. 307, IPC, who pleaded not guilty and claimed trial. The prosecution examined 13 witnesses to establish its case. The accused in his statement recorded u/s. 313, Cr. P. C, submitted that due to political rivalry, he has been falsely implicated in this case. His contention was that Dwarka prasad and others had given beating to Rajendra and Harnarain with the result that Harnarain died on account of the said injuries, and that a report thereof was lodged at the police station, and Dwarkaprasad and others were charge-sheeted u/s. 302 IPC and other sections. Therefore, it was alleged by him that in order to save themselves from that case they have falsely implicated him in this case. Mr. Biri Singh, the learned counsel for the appellant did not argue on the merits of the case. His first contention was that in the right of private-defence, if it is to be taken, Damodarprasad had inflicted the blows. He also argued that according to the prosecution story and the site-plan (Ex. P. 4 ). the incident had taken place at the place marked (1) the stop; and (2) the Chabutri infront of that shop; but no blood was found either at the shop or on the said Chabutri, and on the other hand blood was found at the place shown in between A & B in the site-plan (Ert. P. 4 ). Thus, his argument was that the incident had not taken place at the place as alleged by the prosecution. It was also argued by him that actually, the incident had taken place when Dwarkaprasad and his companions inflicted injuries to Rajendra and Harnarain, and in that scuffle, Dwarkaprasad also might have received the injuries. Therefore, according to Mr. Biri Singh in their right of private defence the accused-appellant and his party had inflicted the injuries to Dwarkaprasad. I do not agree with this argument, because. Damodar who inflicted the injuries to Dwarkaprasad, was not present when the scuffle took place. Even Damodar was not present when Dwarkaprasad and his companions had inflicted blows to Harnarain and caused his death. There-fore, no right of private-defence accrued to Damodar. Regarding change of place of incident, it is correct that the SHO has admitted that no blood was found either at the shop or on the Chabutri outside it, i. e. the places marked (1) & (2) respectively in the site-plan (Ex. P. 4), but it is not sufficient to throw away the entire case of the prosecution. From the evidence on record, it is established that a dispute had taken place, and in' the course thereof, Damodar had inflicted injuries with a sword, a sharp-edged weapon, to Dwarkaprasad. Therefore, as no blood was found either at the shop or on the Chabutri as shown in the site-plan (Ex. P. 4) does not matter much so as to throw the entire prosecution case.
(3.) IT was also argued by Mr. Biri Singh that as is clear from the statement of the doctor, PW 1 Dr. Nathmal Saboo, that a case u/s. 307, IPC, however, is not made out. The statement of the doctor, was read over to me & I also perused the said statement. According to the Doctor Dwarkaprasad had 3 injuries-injury No. I was an incised wound on the head, and in his opinion, this injury was simple in nature and not a dangerous or grievous one. Injury No. 2 was also an incised wound on finger and thumb. And Injury No. 3 was an incised wound on the right forearm. According to the doctor, Injury No. 3 was grievous in nature. Injuries Nos. 1 & 2 were simple, as there was no fracture, but Injury No. 3 was a grievous one, as there was a fracture of ulna-bone The doctor has stated that injuries Nos. 2 & 3 were bleeding profusely, and in his opinion, profuse bleeding might have been dangerous to the life of the patient. In his cross-examination, he has very specifically said that injuries Nos. 2 & 3 were dangerous to life. On the. face of this statement, it is clear that the doctor was not of definite opinion that Injuries Nos. 2 & 3 were dangerous to life. Sec 307, IPC envisages that if the act is done with the intention or knowledge that by that act death would be caused, then, the person committing such act, would be held guilty of attempting to commit murder. So, the prime ingredient of this Section is that the accused must have the intention or knowledge that by that act which he is going to do, he may be held guilty of committing attempt to murder. So the act must be dangerous to life. In this case, the doctor has not stated that injuries Nos. 2 & 3 were dangerous to life, but, according to him, they might have been dangerous. The words, "might have been" do not lead to the conclusion that the injuries were dangerous in nature, so as to cause death of Dwarkaprasad. Actually, Injury No, 2 was on the finger and thumb, and there was no fracture. And, Injury No. 3 was on the right forearm, and there was a fracture of ulna-bone. Thus, Injury No. 2 cannot be said to have been dangerous to life, specially, looking to the dimension of the injury. So, from the medical evidence, it becomes clear that Injury No. 3 too was not dangerous to life. Hence, a case u/s. 307, IPC is not made out here. However, as the injuries were caused by a sharp weapon, resulting in fracture of ulna-bone, the case, in my considered view is covered u/s. 326, IPC only. ;