I.S. ISRANI, J. - (1.) -
(2.) THIS criminal appeal under Section 374 (2) Cr.P.C. against the judgment and order dated 26.9.1981 passed by learned Additional Sessions Judge, Alwar in Sessions Case No. 34/1980 (62/1980) whereby the accused-appellant has been convicted under Section 307 IPC and sentenced to 3 years rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo 3 months rigorous imprisonment. He has also been convicted and sentenced to 6 months under Section 324 IPC. Both the sentences are to run concurrently. It will suffice for the purposes of this appeal to state that on 29.6.1980 at about 1.30 AM, an FIR has lodged by one Tara Chand wherein it was stated that he and his brother Nemi Chand were sitting at their 'Thela' on the road in-front of station. His elder brother Nemi Chand had gone at about 12.30 AM for taking his meals. Since he did not come back upto 1.00 AM, he went to see his brother and saw him eating outside Sindh Punjab Hotel. Accused-appellant Vishambhar and Kanhiya were also eating nearby. Nemi Chand talked in abusive language to Kanhiya, whereupon the proprietor of the hotel Chandu came and told them not to have any quarrel at his hotel. Thereafter Nemi Chand threw a glass towards Kanhiya. Thereafter when Nemi Chand was coming from the hotel Kanhiya asked him to abusive language to stop. Thereafter Kanhiya caught his brother Nemi Chand and Vishambhar took out a knife from his trouser and gave a blow of knife in his stomach. He again attacked him with knife. At that time he, Gop tangewala and Baboo intervened in the matter. It is also stated if they had not intervened his brother would have been killed. On receipt of this information a case under Section 307/34 IPC was registered and investigation started. After investigation challan was filed and the accused-appellant was committed to Sessions and the trial court after recording the evidence of this prosecution witness and statement of the accused-appellant under Section 313 Cr.P.C, acquitted co-accused Kanhiya Lal under Section 232 Cr.P.C. but after hearing arguments convicted and sentenced the accused-appellant as mentioned above. It is contended by Shri Biri Singh, learned counsel for the accused-appellant that injured Nemi Chand was the aggressor as per FIR and the accused-appellant had right to private defence which he rightly exercised. It is also contended that evidence of PW 2 Ram Swaroop and Sumer Singh P.W. 3 who are Constables should not have been believed by the trial court and it is further contended that the evidence produced by prosecution is not reliable and on the basis of the same the accused-appellant could not have been convicted. It is also pointed out that the knife said to have been recovered at the instance of accused-appellant has not been connected with the offence as no human blood on the knife could be proved and no F.S.L. report has been filed. It is contended by Shri Ajay Purohit, learned Public Prosecutor that injury No. 4 has been found to be sufficient to cause death in ordinary course of event and, therefore, the trial court ha rightly convicted the accused-appellant under provisions of Section 307/34 I.P.C. It is also pointed-out that the statements of prosecution witnesses including PW 2 and PW 3 Constables inspired confidence and are even corroborated by medical evidence on record. I have heard both the parties, gone through the evidence and documents on record.
(3.) IT will be necessary to examine the evidence produced in the case. Doctor S.C. Nama PW 1 has stated in his statement that at the night on 29.6.1980 he had examined injured Nemi Chand at the instance of police authorities of Clock-Tower, Police Station, Ajmer. The injured had in all 4 injuries. There was incised wound on left eye-brow(ii) there was abrasion on left angle of Mandible, (iii) there was 'U' shape injury on left upper arm. All these three injuries were simple in nature. Injury No. 4 is described as stab wound present on the left lower part of chest and the blood was profusely bleeding and he advised immediate surgery and X-ray. Injury report Ex. P.l is signed by him. Ex. P.2 is X-ray also bears his signature. Ex. P. 3 is report of surgeon regarding operation which also bears his signature and also that of the surgeon Doctor Harbux Singh. He further states on the basis of the X-ray report, injury report and the report of surgeon, he is of the opinion that injury No. 4 was dangerous and sufficient to cause death in ordinary course of event. He also stated that these injuries could be caused by the knife Article-1. He further states on the same day at about 11.00 AM at the instance of police he had also examined accused appellant Vishambhar who had injury No. 4 (Ex.P 5) one lacerated wound on right thumb, (ii) abrasion on the post side of right elbow (iii) abrasion on the right leg knee and (iv) lacerated wound on forehead on the right at the place where hair started. He stated that all these injuries were simple in nature and caused with a blunt weapon. PW 2 is Constable who was on duty on the day of occurrence He stated that at about 1.00 AM he and Sumer Singh who was also alongwith him hear some shouts, from the side of Madar Gate. They went quickly there and at the turn of 'Thekewali' street PW3 Sumer Singh was little ahead of him. At that time he saw accused-appellant Vishambhar running with a knife in his hand which had blood on it. He, therefore, asked Sumer Singh to catch him thereupon Sumer Singh gave a blow with his stick to accused-appellant Vishambhar, which struck Vishambhar on his head. However, accused-appellant ran away in the street which was dark at that time. Thereafter they went towards Ghantaghar (Madargate.) and came to know that Nemi Chand had been given blows of the knife. In cross he states that he knew Vishambhar before the date of incident by name as well as by face. He stated that it was Vishambhar who was running away from my estimate of the body of the person who was running away. Sumer Singh PW 3 is also Constable who was on duty at that time alongwith PW 2. He states in examination in chief, he heard shouts of 'Pakdo-Pakdo' (idM+ksa idM+ksa) from the side of Ghantaghar. From that side he saw accused-appellant Vishambhar going running, who had knife in his hand which had blood stains. He was little ahead of PW2 and PW3 told him to catch accused-appellant Vishambhar. He had struck in his hand with which he struck a blow on head of Vishambhar but Vishambhar ran away from 'Thekewali' street. Thereafter they went towards the site from where he had heard shouts and came to know that .Nemi Chand had been injured with knife blows. In cross examination this witness says that he did not know Vishambhar either by name or by face before the incident and his name was told to him by PW 2 Nemi Chand PW 4 injured person himself, he did not recognise co-accused Kanhiya Lal. He has stated that Vishambhar and he had some talk at the hotel. Vishambhar and he had hot exchange of words and he threw a glass towards him which did not struck him. Thereafter when he was given after eating food Kanhiyalal who was with Vishambhar called him to stop. At that time his brother Tara Chand also came there to take him. Kanhiyalal caught him from the back and Vishambhar given him knife blow in his stomach. Vishambhar when started giving further blows to him at that time Gop tangewala and Baboo and his brother saved him. He received knife blow above left eye and left shoulder also. He became unconscious on account of the injuries. He regained consciousness in hospital after 5 days. He stated that Kanhiya Lal present in the Court is not the same person Kanhiya who was alongwith Vishambhar at that time. In cross he says that he denies that police recorded his statement on next day in hospital. He was confronted which Ex. D. 4 his statement under Section 161 Cr. P.C. in which he denied that he had not stated that after the incident his brother took him to Clock-Tower Police Station and thereafter his condition became worse. He was also confronted with Ex. D.5 statement recorded in Court in which also certain contradictions were pointed out to him. There was darkness at the place where he was given knife blow. There was again confrontation with Ex. D.4 in which it has not been mentioned that he threw a glass towards Kanhiyalal and that there was exchange of abuses between him and the accused-appellant at the hotel. He and accused-appellant Vishambhar admits that they had been prescribed in a case of giving knife blow in which he was acquitted. Baboo PW 5 has stated that he does not recognise Kanhiya who is present in the Court. On the day of occurrence when Nemichand and his brother Tara Chand came out from the street and came near' Pyauo' he was talking to Tara Chand. At that time accused-appellant Vishambhar called Nemichand to stop and told him that I will see you. Person named Kanhiya caught hold of Nemi Chand from back and Vishambhar took out a knife from his left pocket and opened it and given a blow in stomach of Nemi Chand. He, Gop tangewala tried to intervened and make Nemi Chand stand. At that time Vishambhar again gave knife to Nemi Chand which struck him near the right eye and right shoulder. Thereafter Vishambhar ran away towards Madargate. He and few other persons also ran behind them. At that time two Police Constables were also going from Madargate who on hearing the shouts given a blow on struck on head of Vishambhar who he quickly ran away. He recognised Article 2 knife and said that this is the same in that with which the crime was committed. In cross examination he states that the police-man struck a blow with his stick on head of Vishambhar from the back near 'shop of Bata' which is little ahead of Madargate near the turn. He further states that he dragged Nemi Chand. with his hand but earlier than that knife blow had been given to him. He and Tara Chand both tried to make Nemi Chand stand who had fallen down of receiving knife blow. When they were trying to make Nemi Chand stand Vishambhar again given him knife blows. He was confronted with Ex.D 3 his statement under Section 161 Cr.P.C. in which he had not stated that Vishambhar told Nemi Chand that he will see him. He also proved the said map which was signed by him. PW 7 Chandra is proprietor of Hotel Sindh Punjab near Ghan-taghar where on the day of occurrence injured Nemi Chand has gone to take food. He states that on 29-6-80 at night Vishambhar and one another person whom he does not know had come to his hotel. While Vishambhar and the person accompanied them were taking food, Nemi Chand came there. Nemi Chand and Vishambhar and the succumbed accompanied Vishambhar had exchanged of hard word thereupon I have told them that nothing should be done at his hotel. Tara Chand P.W. 9 is brother of Nemi Chand. He states that on the day of occurrence at about 12.00 AM at night Nemi Chand asked to him to wait at 'Thela' and he went to take food at Sindh Punjab Hotel. Since he did not come back for about half an hour he went to see him. There was some exchange of hard word between Vishambhar and Nemi Chand at hotel. When he and Nemichand started from the hotel for going to their Thela Vishambhar gave him call from behind, to his shop and told him that I will see you just now. Soon thereafter Vishambhar took out a knife from pocket of his paint and gave a blow with knife in stomach of Nemichand. Nemichand in all received three injuries and Vishambhar after giving him knife blow ran away from the shop. Vishambhar also received injury near left eye and at left shoulder. One more person was with Vishambhar at that time. On account of darkness he could not see that person properly. When Vishambhar gave knife blow to Nemichand at that time Gop, Baboo and two other persons were present. I took to Nemichand in stage of unconsciousness to police station Clock Tower and Baboo and Gopa ran behind Vishambhar. He lodged FIR which is Ex. P. 9. The paint of Nemichand which was full with blood was kept by him below the pillow in hospital was taken by police. I had find document Ex. P. 10 regarding the same. He was confronted with Ex. D. 6 which is statement/ judgment under Section 161 Cr.P.C. and certain contradictions were pointed out to him including the statement that Nemi Chand had abused to Kanhiya. He also stated that it is not correct that Nemi Chand had thrown glass towards Kanhiya. He states that I came to know name of the other persons to be Kanhiya and Vishambhar took his name and asked him to run away. He further states that Nemi Chand regained consciousness on the next day in the evening. He also states that he has seen Vishambhar giving knife blows to Nemi Chand and had also seen him running away from the scene of occurrence but he cannot say in what direction he ran away. Gop PW 13 who was stated to be present at ' the time of occurrence has been declared hostile. Doctor Madhur Udhavat PW 16 states that injured Nemi Chand was admitted in hospital on 29.6.1980 and was discharged on 7.7.1980. Injury report is Ex. P. 1. Ex. P. 13 is the bad ticket of the patient. Operation note is Ex. P. 13. Ex. P. 2 is X-ray report which is a admitted document. The opinion on this exhibit shows that injury No. 4 is dangerous. From the evidence discussed above, it cannot be said that injured Nemi Chand was aggressor. There was exchange of hot words and at the most it may be said that a glass was thrown towards the accused-appellant but thereafter the matter had subsided and injured Nemi Chand along with his brother was walking away from the place of occurrence when accused-appellant gave him a call from behind and stopped him. As soon as he stopped the person accompanying Vishambhar caught hold of the injured person from back and accused-appellant gave him knife blows as has come in the evidence. It-is also proved from the evidence that Nemi Chand at the time of occurrence received three injuries with sharp edged weapon out of which one was dangerous to life. In these circumstances there is no question of accused-appellant exercising in right of private defence because at the time when he gave knife blows to the injured Nemi Chand he shouted him from back and asked him to stop whereupon Kanhiya caught hold of Nemi Chand and accused-appellant, gave him knife blows. Thus there was no occasion of accused appellant exercising any right of private defence. More over the injury report of Ex. P.5 of Vishambhar also shows that he received four injuries which were all simple in nature and two of which were only abrasions. Doctor S.C. Nama PW 1 has also stated in his statement that from the report and the operation note it is clear that the injury at abdomen was dangerous and sufficient to cause death inordinary course of event. It is contended by the learned counsel that the evidence of prosecution witnesses is not reliable and there are several contradictions in their statements. It is also contended that evidence of PW 2 and PW 3 who are constables should be disbelieved. Ram Swaroop Constable PW 2 as discussed above has stated that he saw accused-appellant running with knife in his hand which has blood stained, therefore, he asked PW 3 Sumer Singh who was little ahead of him to catch the accused-appellant. Thereupon, PW 3 Sumer Singh gave a blow to Vishambhar with his stick. Sumer Singh PW3 has also corroborated the evidence given by PW 2 and has clearly stated tha the gave a blow with stick on head of the accused-appellant. This is also corroborated by medical evidence as it is clear from Ex. 5 injury report of accused-appellant that he received injury No. 4 on his head with a blunt object. Therefore, it cannot be said that the evidence of PW 2 and PW 3 should be disbelieved merely because they are Constables. Nemi Chand PW4 the injured person, Baboo PW 5 the witness who was present at the time of occurrence and Tara Chand PW 9 the brother of the injured Nemi Chand has clearly stated that they saw the accused-appellant giving knife blow to the injured Nemi Chand. Chander PW 7 has clearly stated that Visham-bhar accused-appellant alongwith another person and injured Nemi Chand were sitting at his hotel and was eating food where there was exchange of hot words between them. All this evidence therefore, proves beyond shadow of doubt that it was the accused-appellant who gave knife blows to injured Nemi Chand, one- of which was dangerous to life. ;