AYAJ ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE appellant being indigent this Court appointed State defence for him. He has been convicted under Section 302, I.P.C. and sentenced to imprisonment for life by the learned Session Judge, Cachar at Silchar.

(2.) IN a nutshell the prosecution case is that at all relevant times the appellant was a domestic servant of Dholamani Singh. It is alleged by the prosecution that on 9 -7 -1978 Dholamani Singh and his servant, the present appellant, were grazing buffaloes inside the compound of the deceased wherefor the wife of the deceased protested at the action of the appellant and his master in allowing the buffaloes to graze. In spite of the protest the appellant and his master continued to do so and claimed that they would continue to do so. At this her husband Ganga alias Rosman Ali came out and told them that even after grazing inside their compound they were abusing his wife. This led to altercations and exchange of hot words and the present appellant dealt a dao blow to Ganga, which fell on the left side of his chest who sustained one injury but succumbed to it. It is alleged, after Ganga breathed his last, his wife mustered courage, took out a lathi and hit Ayaz Ali, the appellant, who was standing and watching the entire drama. P. W. 2 Safina Bibi cried out which attracted attention of others but in the meantime Dholamoni Singh as well as the appellant left the place with their buffaloes.

(3.) TO bear up the prosecution case as many as 7 witnesses were examined of which P. W. 2 Safina was the eye -witness and P. Ws. 5 and 6 were the witnesses who came immediately after the incident. "Right of private defence of persons" was the plea taken by the accused appellant during the trial, we hasten to correct it by stating that this was the plea taken by the accused appellant immediately after the incident and it was taken when the mind of the appellant was not diluted by any other aid; assistance or manufacturing agency, including 'legal aid.' Therefore it was a pure undiluted defence. The appellant claimed before P.Ws. 5 and 6 that it was Ganga who had dealt lathi blow on his head and in order to save his life he brandished his dao and caused only one injury and no more. There is no disputation from any quarter that there was an altercation, exchange of hot words and abuses between the deceased and his wife on one side and the appellant and Dholamani Singh on the other. Now, what was the weapon like with which Ganga dealt the blow? The prosecution failed to seize and produce the lathi in question. When the plea of right of private defence of person is taken and it is alleged that right was resorted to in order to save the life of the accused, it is imperative for the prosecution to produce the weapon with which he had been assaulted, if available, to establish that it was but an innocuous stick or a simple in offensive weapon and thereby establish that the plea of self -defence of life or limb was apocrypha.