RAMESH KUMAR Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) This appeal is directed against the judgment of learned Sessions Judge, Udhampur dated March 24, 1995 by virtue of which the appellant has been convicted and sentenced to imprisonment for life and to pay a fine of Rs. 500/- under Section 302 of Ranbir Penal Code. Mr. Bakshi, appearing for the appellant, argued that the prosecution has failed to prove the charge against the appellant because of the two versions of the occurrence. According to him, it is the admitted case of the prosecution that the occurrence was witnessed only by prosecution witnesses, namely, Sagar Singh, Shashipall and Raj Kumar. However, the presence of PW Sagar Singh on spot is excluded by both PWs Shashipall and Raj Kumar. So the statement of PW Sagar Singh, argued Mr. Bakshi, could not be believed. He next argued that, according to PW Raj Kumar alias Raju, the deceased had challenged the accused/appellant to come out of his shop and the moment he came out, the former gave him a blow of 'Kahi' (an iron shod, agricultural implement of digging earth), which, however, missed the target. It was only at this stage that the appellant/accused struck the deceased with a 'Durat' (which is also an agricultural implement) which proved fatal. This version of the occurrence is, however, contrary to the evidence of prosecution-witnesses Sagar Singh and Shashipall who denied that the deceased was either in possession of 'Kahi' or ever attempted a blow of the same on the appellant/accused. Since the prosecution neither declared PW Raj Kumar hostile nor cross-examined him, therefore, according to Mr. Bakshi, the appellant/accused has used force in exercise of right of private defence without taking undue advantage. He further argued that the right of private defence in this case has not been exceeded because the blow of 'Darat' was not aimed at any particular portion of the body of the deceased nor the assault was repeated. Mr. Bakshi also argued that assuming that the occurrence had taken place in the manner put forward by PW Shashipall, the conviction under Section 302, IPC is still bad because the offence was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel which falls under Exception 4 to Section 300, RPC and the same would be punishable under Section 304(II), RPC. Mr. Kakkar, the learned Government advocate, however, controverts the proposition put forward by Mr. Bakshi that there are two versions of the occurrence. According to him, the prosecution story is corroborated by the version given in the First Information Report. The trial Court, he argued, has appreciated the evidence and came to the conclusion that the appellant/accused was guilty of culpable homicide amounting to murder because the appellant/accused was the aggressor.

(2.) We have been taken through the evidence and find that there is much weight in the submissions made by Mr. Bakshi, both, with regard to the presence of PW Sagar Singh, brother of the deceased, and two versions of the occurrence. It is the emphatic statement of PW Shashipall that barring him and PW Raj Kumar, none else was present on spot at the time of occurrence. He also stated that it was only when they were running from the place of occurrence that he saw PW Sagar Singh approaching the place of occurrence. This fact was reiterated by him in his cross-examination also. Same is the statement of PW Raj Kumar also. However, assuming that Sagar Singh PW had also witnessed the occurrence from his statement read with that of Shashipall, the following conclusions can be drawn :-

(3.) The next question is, what is the offence made out against the appellant/accused. As noticed above, the assault was without premeditation on a sudden fight. The possibility of deceased having given provocation cannot be entirely ruled out because he had no reason to get down from the bus when the village where he resided is a little ahead of the place of occurrence. But for his approaching the appellant/accused, the occurrence would not have taken place. So what actually transpired between the two has been suppressed to some extent. Nonetheless, even if we believe the other version of the occurrence in its entirety, Exception 4 to Section 300, IPC will be attracted. It reads as under :-