VICTOR SOLOMON DAVID Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) VICTOR alias Kalloo, appellant in Criminal Appeal No. 95 of 1961, was tried along with two others Sunny and Cyril Daniel, under Section 302, read with Section 34 of the I. P. C. for having intentionally caused, the death of one Shyamlal on 8. 7. 1960. The appellant Kalloo was convicted under Section 304, Part I, and the other two accused were given the benefit of doubt and acquitted by the Additional Sessions Judge, Jabalpur, who tried the case. The appellant filed an appeal against his conviction and sentence. The State also filed an appeal (Criminal Appeal No. 209 of 1961) against the acquittal of the appellant under Section 302, I. P. C. Both these appeals were heard by a Division Bench of this Court consisting of Naik and Golvalker, JJ. The learned Judges have differed Naik, J. holding that there was no right of private defence and the appellant should nave been convicted under Section 302 of the I. P. C. and Colvalker, J. holding that the appellant had a right of privatr defence and should have been acquitted. The appeals have, therefore, been referred to me under Section 429 of the Cr. P. C.

(2.) THERE was a proposal of the marriage of Maya, sister of Prem Kumar alias Mintu (P. W. 6) with Clement Daniel, brother of Cyril Daniel. Mintu was opposed to this. On 3. 7. 1960 there was a quarrel between Mintu and Clement Daniel on this question and he beat Clement Daniel with shoes. Later, on 6. 7. 1960, at 6-30 p. m. , Clement Daniel's brother Cyril Daniel, who was an accused in this case, abused Mintu and challenged him to come out. Mintu did not come out and ultimately at the intervention of Pyarelal (P. W. 2) and Mahadeo (P. W. 18), the incident ended in Cyril's party retiring.

(3.) SOON alter, appellant Kalloo (Victor), accompanied by Sunny and Cyril, came back to the house of Mintu. The prosecution alleged that they were then respectively armed with it dagger, axe and a stick. The deceased Shyamlal, Tillu (P. W. 4) and Umashanker (P. W. 1), who are men of the party of Mintu, followed them. Seeing this, Kalloo's party retreated to a side lane which led to their houses. Shyamlal's party pursued them and when they reached end of the lane near the house of Baijnath (P. W. 8), the appellant Kalloo struck Shyamlal with a dagger as a result of which he died the same night.