VIJAY SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BY his judgment dated May 30, 1980 the learned Sessions Judge, Pali convicted and sentenced the appellants as under :- S. No. Name of accused Offence Sentence awarded 1. Vijay Singh 302, IPC Imprisonment for life with a fine of Rs. 500/-, in default of the payment of fine to further undergo six months rigorous imprisonment. 307, IPC Seven years rigorous imprisonment with a fine of Rs. 250/-, in default of the payment of fine to further undergo two months life imprisonment. 324, IPC Three months rigorous imprisonment with a fine of Rs. 100/-, in default of the payment of fine to further undergo seven days like imprisonment. 2.Chandradev 323, IPC Released on two years probation of good conduct.

(2.) BRIEFLY stated, the prosecution case is that at about 9. 00 P. M. on August 30, 1977, PW ll Sohanlal informed the Station House Officer, Police Station, Pali, that some quarrel has taken place a few minutes earlier at Suraj-pole, two persons involved in it have intruded in the building of his goods transport company and that a huge mob had collected out-side. The S. H. O. Modsingh (P. W. 44) recorded this information in the Rojnamcha of the Police Station (EX. P. 48/1) and immediately arrived at Surajpole with police force. Learning there that the injured persons have been taken to the hospital, he posted some constables there on the spot and himself went to the hospital. He found there Gulam Nabi alias Gullu lying dead. P. W. 1 Lal Mohammed, PW 2 Mohammed Yusuf and PW 31 Nisar Ahmed were lying injured. He recorded the statement of Lal Mohammed, which is Ex. P. 1, It was stated by Lal Mohammed (PW 1) in Ex. P. 1 that at about 8. 30 p. m. on that day he and Mohammed Yusuf (PW 2) were sitting in a hotel at Surajpole. While they were taking tea, they heard some noise on the road. They rushed towards that place and saw accused Vijay Singh having a knife in his hand. Accused Vijay Singh inflicted injuries with his knife to Gulam Nabi alias Gulam Rusul alias Gullu. He (Lal Mohammed PW1) tried to intervene catch-hold of accused Vijay Singh. Accused Vijay Singh inflicted blows to him with his knife. Mohammed Yusuf (PW 2) and Nisar (PW 31) also tried to intervene and they too were inflicted injuries by accused Vijay Singh. Accused Vijay Singh had some companions with him. One of them struck a blow with a hockey-stick on the neck of Lal Mohammed (PW 1 ). Vijay Singh and one of his companions thereafter ran away towards the transport company. His other companions also managed to escape. PW 28 Takhat Singh arrived on the spot and he took the injured persons to the hospital, where the doctor on duty declared Gulam Nabi dead. The police treated Ex P. 1 as the First Information Report and registered a case thereon. The Station House Officer proceeded with investigation. The S. H. O. Modsingh prepared the inquest report of the victim's deadbody. He also inspected the site and prepared the site plan and site inspection memo. At about 00. 30 Hours on August 31, 1977, that is. nearly after four hours of the occurrence, the S. H. O. went to the building of Kalish Transport Company and found accused Vijay Singh and Chandra Dev taking shelter there in the godown. Both of them were arrested. The pent and bushirt, which accused Vijay Singh was wearing at that time, were found stained with blood. Both these clothes were seized and sealed and seizure memo Ex. P. 27 was prepared. He found two injuries on the person of accused Vijay Singh. Accused Chandradev, at the time of his arrest was having a hockey-stick with him. It was also seized and sealed. The post-mortem examination of the victim's deadbody was conducted at about 6. 00 A. M. on August 31, 1977 by the Medical Jurist Dr. G. K. Vyas (PW 39 ). He noticed the following ante-mortem injuries on the body of Gulam Nabi alias Gullu. External (1) Incised wound 1" x 1/2" x 1/10" spindle shaped clean margin horizontal starting 1/2" to left lateral angle of left eye going to topple. (2) Stab wound externally opendle, clear cut 1" x 1/3" along rib direction in 5th intercontal space 1" below and 1/2" to leatral of left nipple of chest, depth directed deep, medically and up. Internal All the soft tissues, muscles were cut, the pleurae was cut under the wound, chest cavity as full of blood esp. on left side, left long exeared with blood and bear a cut 3/4 x 1/4 through and through, corresponding to wound. A cut was present 1/2" x 1/6" in ventricles (left) going in cavity. " The doctor was of the opinion that the cause of death of Gullu was sudden to hemorrhage and shock due to stab wound to heart. The doctor also examined the injuries of Lal Mohammed, Nisar, Mohammed Yusuf, Amba Lal and accused Vijay Singh, on the same day and found two incised wounds and one contused swelling on the person of Lal Mohammed (PW 7) one sized incised wound on the person of PW 31 Nisar, one incised wound on the person of Mohammed Yusuf (PW2), four abrasions on the person of Ambalal (PW 1) and one lacerated wound and one abrasion on the person of accused Vijay Singh. The postmortem report prepared by the doctor is Ex. P. 36, while the injuries reports issued by him are Ex. P. 37, Ex. P 38, Ex. P 39, Ex. P 40 and Ex. P 41. The bloodstained clothes of the deceased and the injured persons were also seized and sealed. Accused Balbirsingh was arrested on July 3, 1977. At the time of his arrest, many injuries were found on his body. His injuries were examined by Dr. Vyas. Sixteen injuries, which were abrasions and contusions, were found on his body. The injury report prepared by the doctor is Ex. P 42. According to doctor Vyas, these injuries were caused by slaps and first-blows. The investigation revealed that Om Prakash, Harish Ramchandani, Balbirsingh and Mansingh had accompanied the accused Vijay Singh and Chandradev and were with them at the site of the occurrence. They were also arrested. The various seized and sealed articles were sent for chemical examination. The clothes of the deceased-victim and the bushirt and pent of accused Vijay Singh were found stained with human blood as per the report Ex. P 54 of the Serologist. The investigation further revealed that there were two factions in Government Bangar College, Pali in the election of the College Union. One of the factions sought the help of accused Vijay Singh and the other faction sought the help of PW 10 Ambalal and Chandiya. Accused Vijay Singh had his own group while Ambalal and Chandiya had their own group. The deceased Gulam Nabi was in the group of Ambalal and Chandiya. There were incidents of violence between these two groups from time to time. This rivalry in the two groups resulted in the incident. On the completion of investigation, the police submitted a challan against (1) Vijay Singh, (2) Balbir Singh, (3) Om Prakash, (4) Harish Ramchandani, (5) Chandradev and (6) Man Singh in the court of Munsif and Judicial Magistrate, Pali, who in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under sections 147. 148, 302, 307, 324/149 and 323/149, I P. C. against accused Vijay Singh, under sections 147, 148, 302/149, 307, 324/149 and 323/149, I. P,c. against accused Balbirsingh and under sections 147, 148, 302/149. 307/149, 324/149 and 323/149, I. P. C. against the remaining four accused. All of them pleaded not guilty to the charges and demanded trial. They denounced the whole prosecution story as a false and fabricated piece of concoction and claimed absolute innocence. In support of its case, the prosecution examined 45 witnesses and filed some documents. In defence, the accused examined eight witnesses. The suggestion put forward in the defence is that a quarrel took place between Ambalal (PW 10) and four or five persons of Ghosi community. Ambalal had a knife with him and inflicted injuries with it to two or three Ghosies. It was suggested that deceased Gulam Nabi and the injured persons were inflicted blows with a knife by PW 10 Ambalal and his compassions. On the conclusion of the trial, the learned Sessions Judge found no incriminating evidence against accused (I) Balbirsingh, (2) Om Prakash, (3) Harish Ramchan-dani and (4) Mansingh. He, therefore, acquitted them of the offences they were charged with. The prosecution case was taken as substantially true and proved against accused Vijay Singh. He was consequently convicted and sentenced as mentioned at the very out-set. The learned Sessions Judge found that accused Chandradev had inflicted a blow with his hockey-stick on the neck of Lal Mohammed (PW1 ). He was consequently convicted under section 323, l. P. C. , but was released on two year's probation of good conduct. The learned Sessions Judge also held that there was no case of unlawful assembly for causing the murder of Gulam Nabi. He also found no case for the applicability of section 34, I. P. C. against accused Chandradev. Aggrieved against their conviction, accused Vijay Singh and Chandradev have come-up in this joint appeal.

(3.) THE right of private defence has two aspects, viz. (1) the complete defence-totally absolving him from guilt by virtue of exemption contained in section 96 of the Indian Penal Code and (2) reducing the offence from that under section 302 to 304, I. P. C. by the applicability of exception (2) of section 300, I. P. C.