GANGADA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal filed by Gangada is directed against the judgment of the learned Additional Sessions Judge, Jalore, dated 4-3-1974, convicting the appellant under Section 304, Part I, I. P. C. and sentencing him to undergo rigorous imprisonment for ten years.

(2.) THE relevant facts, giving rise to this appeal, may be shortly stated as follows:

(3.) CONTUSION 6 cm X 3 cm across the upper half region of right side of back. In the opinion of the Doctor the death occurred due to coma caused by extra-dural haemorrhage. The appellant was. therefore, challaned in the court of the Munsiff-Magistrate, Sanohore, for the offence of murder punishable under Section 302, I. P. C. The learned Magistrate conducted an inquiry, preparatory to commitment, and upon finding a prima facie case of murder against the appellant, committed him to the court of the Additional Sessions Judge. Jalore. The learned Additional Sessions Judge tried the appellant and found him guilty under Section 304, Part I, I. P. C. and sentenced him as stated above. Aggrieved by his conviction and sentence, the appellant has come up in appeal to this Court. 3. I have carefully gone through the record and heard the arguments advanced by Mr. M. C. Bhandari, appearing on behalf of the appellant and Mr. G. A. Khan, for the State. Firstly, it has been contended before me by the learned Counsel for the appellant that Ramkin deceased was an aggressor and that he struck a lathi blow on the back of the appellant in the first instance and that the appellant apprehending imminent danger to his life and limb, hit back and inflicted a fatal blow on the head of his assailant which ultimately proved fatal. He further urged that the incident was an outcome of a sudden quarrel that ensued between the two over a sum of money which the deceased had taken on loan from the appellant. According to him, the appellant asked the deceased to return the loan, which he had secured from him, Ramkin deceased resented the demand of money and in a fit of rage attacked the appellant who, in the exercise of the right of private defence of person, gave a single blow on the head of the> appellant with a short cane-stick. In support of his above contentions, the learned Counsel for the appellant invited my attention to the plea taken by the appellant at the trial and to the evidence of Amalakh D. W. 1 whose presence at the time and place of occurrence was admitted by the prosecution itself, and cited Mohamed Habib v. Emperor AIR 1940 Pat 595 : 41 Cri LJ 520. Mr. G. A. Khan, appearing on behalf of the State. on the other hand, argued that no right of private defence of person accrued to the appellant in the circumstances of the case and that the plea taken by him in the trial court was an after-thought, because he never pleaded in the committing court that he was first attacked by the deceased and that he had a right of self-defence.