STATE OF RAJASTHAN Vs. BANSHILAL

JUDGEMENT

(1.) - This appeal has been filed by the State against the judgment dated 14. 7. 77 passed by the learned Sessions Judge, Pali, whereby he acquitted the accused- respondent of the offence u/s. 302 IPC.

(2.) THE relevant facts for disposal of this appeal lie in a narrow compass. PW 1 Ram Gopal had four sons including deceased Shiv Narain and respondent Banshilal. His other two sons used to live separately, while deceased and the respondent were living with their father Ram Gopal. On the ill-fated night on 19. 3. 77 at about 10 P. M. , Shiv Narain and Ram Gopal came together from the market. Respondent Banshilal was sleeping on the floor of the 'pol' of the house. It is the case of the prosecution that Ram Gopal went upstairs for sleeping. Shiv Narain accidentally touched the leg of Banshilal, who was sleeping, and that gave rise to an altercation between them. THEreupon, Ram Gopal came downstairs and intervened and separated Shiv Narain and respondent Banshilal, who were grappling with each other. It is alleged that suddenly respondent took out a knife from his bed and inflicted a knife blow which landed on the chest of Shiv Narain. THEreupon, Shiv Narain raised an alarm to the effect that Banshilal had dealt a knife blow to him and that he would go to the Police Station to report the matter. It is further the case of the prosecution that during this altercation between two brothers, PW 1 Ram Gopal also received blood stains on his shirt. Shiv Narain after being injured went out of the 'pol' and came on the street, where he fell down near the house of one Ganpat Lal. THEreupon Ram Gopal raised an alarm but none of his neighbours came there. Ram Gopal's younger brother PW 2 Lala came there and both of them found that Shiv Narain had succumbed to his injuries. THEreafter, they put the dead body of Shiv Narain on a cot on 'chabutari' of Ram Gopal's house. Meanwhile, PW 15 Mod Singh, S. H. O. , P. S. , Pali received a telephonic message at about 10. 30 P. M. to the effect that dead body of Shiv Narain was lying on the road. THE informant, however, did not disclose his name. Since the said information was vague and incomplete, Mod Singh recorded the same in the daily diary as Ex. P. 23 and immediately reached the spot, where PW 1 Ram Gopal submitted a written report Ex. P. 1. THE same was sent to the Police Station through L. C. Mahendra Singh, where on the same night at 11. 45 P. M. formal F. I. R. Ex. P. 15 was drawn and a case was registered. Accused -respondent Banshilal was sitting there near the dead body of deceased Shiv Narain, who was arrested. Mod Singh prepared the autopsy report of deceased, inspected the site and prepared site plan Ex. P. 4 and memo thereof Ex. P. 5. He found the blood stains lying scattered on street as well as on 'chabutari' of Ram Gopal's house as also inside the 'pol'. He seized and sealed the blood stains and the blood stained half pant of deceased.

(3.) MR. Bohra has vehemently contended that it is true that the alleged eye witness PW 1 Ram Gopal has turned hostile still then the presence of the respondent at the place of occurrence and the altercation between the deceased and the respondent stands firmly established by the circumstantial evidence; that the respondent had inflicted a knife blow on the vital part of the deceased which resulted in latter's death; that knife was also recovered at the instance of the accused respondent and, therefore, the learned trial Judge has committed illegality in disbelieving the recovery of the knife and holding that the respondent had a right of private defence. According to him, the prosecution by adducing clear, cogent and convincing evidence has successfully brought home the offence u/s. 302 IPC against the respondent.