VICTOR ALIAS KALOO Vs. STATE

JUDGEMENT

(1.) The judgment in this appeal shall also govern the disposal of criminal appeal No. 209 of 1961.

(2.) THE appellant -accused, Victor alias Kaloo, has been convicted by the Additional Sessions Judge, Mandla, camp Jabalpur, under section 304, part one, of the Indian Penal Code for having committed the murder of Shyamlal on the evening of 6th July 1960 in Ghamapur Mohalla of the town of Jabalpur, in excess of his right of private defence and sentenced to rigorous imprisonment for a period of seven years and to pay a fine of Rs.100 or, in default, to undergo rigorous imprisonment for a period of six months. Criminal appeal No.95 of 1961 is the appeal by the appellant - accused against his conviction and sentence; while criminal appeal No. 209 of 1961 has been filed by the State Government against his acquittal of an offence under section 302 read with section 34 of the Indian Penal Code.

(3.) THE prosecution case is that after the parties had been persuaded to go to their respective houses, the appellant -accused Kaloo along with his two companions, Sunny and Cyril Daniel, came back to the house of Prem Kumar (P.W. 6). The appellant -accused Kaloo then had a dagger, the accused Sunny an axe and the accused Cyril Daniel a Lathi. While going towards the house of Prem Kumar (P.W.6) they were saying that they would beat him after entering into his house. On seeing the accused coming towards the house of Prem Kumar (P.W. 6), the deceased Shyamlal, Tilloo (P.W. 4) and Umashankar (P.W. 1) followed them. When the appellant - accused and his companions saw that they were being followed by the Deceased Shyamlal, Tilloo (P.W. 4) and Umashankar (P.W. 1) they retreated and went into a lane leading towards their houses. The deceased Shyamlal, Tilloo and Umashankar followed them into the lane and when they were near the electric pole adjacent to the house of Baijnath (P.W. 8), the appellant -accused Kalloo attacked Umashankar with a dagger; and when the deceased Shyamlal ran towards him (Kalloo), the accused Sunny struck him a blow on his head with an axe with the result that he (Shyamlal) fall down. The appellant -accused Kalloo then sat on the thighs of the deceased Shyamlal and inflicted three or four blows on his chest with his dagger. In the meantime, the accused Sunny attacked Umashankar (P.W. 1) with his axe, who in retaliation threw a soda -water bottle at him. Both the soda -water bottle and the axe missed their aims; and these two persons (the accused Sunny and Umashankar (P.W. 1) ran away from the spot. After a while, Mahadeo (P.W. 18) and Phulchand took the deceased Shyamlal in a rickshaw to the Victoria Hospital where he succumbed to his injuries.