RAISING MOHMIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an appeal against the conviction and sentence passed by the Additional Sessions Judge, Baroda, on the appellant under Section 302, I. P. C. for the murder of one Nana Jeram and under Section 324, I. P. C. for causing hurt to one Bai Gujali and sentenced to suffer imprisonment for life and Rule I for one year respectively. Both the sentences were ordered to run concurrently.

(2.) The prosecution case, jn brief may be put this way: The deceased Nana Jeram was living with his daughter-in-law Bai Gujali and her young son aged about 4 years in the village of Moti Sadha'lj in Chhotaudenur Taluka. Bai Gujali's husband had died 3 years before the date of the incident in the case, which took place on the 8th of March 1980. On the day in question i.e. 8th March 1960, while the deceased Nana Jeram and Bai Gujali were geting ready to sleep after haying taken their night meals and when her father-in-law was sitting on the cot it is the prosecution case that Bai Gujali saw two persons in their courtyard. Not having recognized the intruders, she questioned who they were 4 or 5 times but the intruders gave no answer. Thereupon it is alleged that Bai Gujalj told her father-in-law that these intruders were not disclosing their identity. At that time, the deceased and Bai Gujali were in the 'Parshal' i.e. the front verandah of the house; that on Bai Gujali telling this way to the deceased, the deceased said --"who arc coming?" and abused them and further said that some months back his house was looted. He further said -" Let them come. I will either kill them or be lulled". As there was no response of any kind from these intruders the deceased, it Js alleged, took up his bow and arrows and shot one arrow, which hurt one of the two intruders in the chest. The name of the victim is Fulji Gandu. Gujalj recognized Fulji after Fulji fell down. Thereupon, it is alleged that the companion of Fulji i.e. Raising the accused, was recognized by Gujali. It is alleged that since Fulji fell down, Raising, the accused-appellant, attacked the deceased with a Palia which is a sharp-cutting weapon, and gave three Wows with the Palia. It is alleged that the accused also shot an arrow at the deceased. The deceased thereafter fell down. The accused while going away also shot an arrow at. Bai Gujali, which injured her on her arm. The accused ran away. The deceased who was hit in the 'Parshal' crawled near upto the gate and the prosecution case is that the deceased died immediately while he was thus inside the gate. Bai Gujali, who was alone in her house, then shouted to call one Kalji who is a neighbour. It may be stated that the nearest house inthis village was of Kalji at a distance of about 150 feet. There were no other houses in the vicinity. When Kalji came Gujali told him what had happened. Kalji then called another person by name Nanla Kidia- In the morning the police came on the spot. That was as a result of a complaint by the accused at about 5-30 in the morning to the Rangpur Police Station, which is about 2 miles away from this village, in regard to the injury by the deceased on Fulji. The statement of Bai Gujali was recorded in regard to the assault by the accused on the deceased Nana Jerarn. The complaint was thus recorded by the police at about 8 in the morning. A Panchanama of the dead-body and the scene of offence was made. During the Panchnama of the spot, a turban of the accused was found in the Parshal, The accused was arrested in the morning between 8 and 9 On the 9th of March "and it is alleged that his 'langot' and its string were found with stains of blood. His clothes were taken charge of The dead-body of the deceased was sent for post mortem examination where it was found that he had three incised injuries and one punctured wound and actually in the punctured wound, the blade of an arrow was still sticking in. After completing the investigation, the accused was charge- sheeted and put up before the learned Magistrate for preliminary inquiry, who committed the accused to Sessions. In the Sessions Court the accused was convicted and sentenced as stated above, against which the present appeal has been preferred by him. (Here, their Lordships discussed the evidence in, Paras 315; and held that the accused-appellant was the assailant of the deceased and that he was responsible for the murderous assault on the de ceased.) *****

(3.) If was further contended on behalf of the defence that if the accused was the assailant of the deceased, then in that case the accused was acting in his right of self-defence. It was said 'that Gujali in her evidence has stated that 'after the first arrow was hit on Fulji, the deceased tried to shoot another arrow and in all these circumstances the accused had a right of defending both himself as well as the body of Fulji from further harm. To this, the answer of the prosecution is that the deceased was himself acting in self-defence and that therefore, if the deceased was acting in self-defence, the accused, who was an inlru-der'in the premises of the deceased at night and a wrong-doer himself, had no counter right of self- defence against the deceased.