YADAV KUNWARJI Vs. STATE OF M P

JUDGEMENT

(1.) THIS appeal is directed by the accused against the judgment and order dated 9-1-95 passed by Special Judge, Mandleshwar in special case No. 48/92 whereby the appellant was convicted under Section 302 I. P. C. and sentenced to life imprisonment and to pay fine of Rs. 1,000/- in default of payment of fine, one month's R. I. .

(2.) THE prosecution case, in brief, was that the appellant was running a betel-shop on the bus-stand of village Bablai. On 1-11-92 at 5 p. m. , the appellant asked the deceased Champalal to make payment of Bidi-Match box which he had taken on credit from his shop. The deceased told him that he did not borrow anything from his shop and he did not owe any money to him. On this, there was quarrel between them. Rameshchand Thakur (P. W. 5) intervened and took the deceased Champalal to his house. Just thereafter the appellant Yadav came in front of the house of the deceased armed with knife and gave him filthy abuses and asked him to come out of his house. On this, the deceased came out of his house. The appellant at once gave knife-blow to him which landed on his left chest, as a result of which blood gushed out and he fell down and died instantaneously. The appellant ran away. Sheru (P. W. 1) went to P. S. and lodged F. I. R. Ex. P-1 which was recorded by Sub-Inspector R. S. Savita (P. W. 9 ). He visited the spot and on 2-11-92, conducted inquest of the dead-body of the deceased under Section 174 Cr. P. C. and prepared inquest report Ex. P-4. He also prepared spot-map Ex. P-2 and seized stained and unstained earth from the place of occurrence vide seizure memo Ex. P-5 and sent the dead-body for autopsy to P. H. C. Maheshwar where Dr. T. S. Tanvar (P. W. 4) performed post-mortem examination and found the following : One penetrated (stab wound) 2 cm x 1 cm over chest 1" lateral to sternum in 7th intercostal space, cutting chest wall up to arch of avorta 1/2" cut plural and pericondrial cavity. Dr. Tanvar opined that the cause of death was shock due to internal haemorrhage as a result of the injury vide report Ex. P-6. R. S. Savita, I. O. arrested the appellant on 2-11-92 vide arrest memo Ex. P-10. At the instance of the appellant knife was seized from his house vide seizure memo Ex. P-12. He also seized the clothes of the deceased and sent the seized articles for chemical examination to F. S. L. Sagar. After completion of investigation, challan was filed. The appellant pleaded not guilty and false implication and in alternative right of self defence. The learned special Judge convicted and sentenced the appellant as stated above. Hence, this appeal.

(3.) SHRI S. K. Vyas, LC for the appellant, submitted that the learned trial Judge committed error in holding the appellant guilty. He submitted that the deceased himself came out of his house and gave lathi-blow to the father of the appellant and thereafter inflicted lathi-blow to the appellant which caused grievous injury on his hand and under such circumstances the appellant had right of self defence. On the other hand, Shri Desai, G. A. , supported the impugned judgment and contended that the appellant was aggressor, he went armed with knife to the house of the appellant, therefore, he had no right of self defence.