CHANDA ALIAS CHANDRABIHARI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS is the appeal of the accused Chanda alias Chandrabihari who, on his conviction under Section 304 Part 1 of the Indian Penal Code, has been sentenced to three years' R.I. and also to pay the fine of Rs. 1500/ -, and in default of fine, to further undergo five months' R 1.

(2.) IT is not in dispute that the appellant accused Chanda, in the early hours of the night of 26 -10 -77 had given a lathi blow on the head of Loli alias Ramnaresh, who, on the next day, had succumbed to the injuries. The case of the prosecution was that on the night of the earlier day i.e. on 25 -10 - 77, when Subhadra, the wife of Loli was all alone in the house, the appellant -accused, who clandestinely entered her house and had tried to molest her, but he could not succeed due to Subhadra's protest and cries of alarm and her immediate appraisal of the incident to some local people viz. Shambhu K achhi and Jhalla Barai. The appellant accused, on being contacted, was reported to have expressed his remorse and prayed to be excused. On the next day, Subhadra's husband came home and learnt about the incident from his wife. Loli went to the appellant -accused, who was just in neighbourhood and remonstrated him. Both hurled mutual abuses and grappled. Meanwhile, the appellant -accused's wife Mst. Savitri sent a message to call her father -in -law Dalla who arrived at the scene with a lathi Persons present caught hold of Dalla's lathi prevented him from making any assault. It was at this juncture that the appellant -accused was stated to have come from behind and to have given a forceful lathi blow on the head of Loli, who consequently fell unconscious on the ground. The appellant -accused immediately fled away. The report was immediately lodged and the injured Loli was got medically examined but due to severe injury sustained by him, he expired on the next day. After due investigation, the appellant -accused was put up for trial. The appellant -accused, while admitting the factum of assault by him, contended that since Loli bad started beating the appellant -accused's wife, who was pregnant, the appellant -accused apprehended that his wife would possibly get some grievous hurt and consequent to this apprehension, he was forced to make lathi, assault which unfortunately led to Loli death. According to him, it was Loli who was the aggressor and such he had the right of private defence of his wife's person. No evidence was adduced. The trial Court, relying on the prosecution evidence, came to hold the view that the appellant -accused, in causing the death of Loli, had committed the offence punishable -under Section 304 Part I of the Indian Penal Code, inasmuch as, he had intended to cause such injury which, in the ordinary course of nature was likely to cause death. The appellant accused was, hence, sentenced to the present as stated at the outset. Hence, now, the present appeal.

(3.) I have considered the arguments on both sides. So far as the right of private defence of the person of the appellant accused's wife Savitri is concerned, neither there is any defence evidence to support the same nor such defence even emerge out from the prosecution evidence or from the circumstances of the incident. The oral evidence leaves no room for doubt that the incident in question which had taken place on the night of 26 -10 -77 had its genesis in the earlier incident of the preceding night wherein the appellant -accused was stated to have clandestinely intruder in the house of the deceased, in an attempt to molest his wife during his absence.