JOMNA Vs. STATE

JUDGEMENT

(1.) THIS is a jail appeal filed by Jomna against the judgement of the Additional Sessions Judge, Dungarpur, dated 12th January, 1977, whereby he was convicted under section 304 Part II, I. P. C. and sentened to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1000/-, in default of payment of fine to further suffer rigorous imprisonment for six months.

(2.) THE prosecution case against the appellant was as follows- Jomana appellant and his wife Mst. Roopli had gone to the house of Lachmana for cutting crops. THEy were invited by Lachmana to do this work. Both the appellant end his wife stayed at the house of Lachmana in his village. During their stay Jabra son of Moti's wife breathed her last. On hearing the news of her death the appellant's father Ranchor started from his village for condolence and reached the house of Lachmana in the evening of 6th October 1976. Besides Ranchor some other guests, namely, Ratna, Babla, Bathia and Jawa also visited the house of Lachmana who served them food. When all the guests including Ranchor and the appellant were eating rice in the court-yard of Lachmana, Ranchor asked the appellant to go back to his house as, according to him, he was saying there unnecessarily for the las' 3/4 days. THEreupon, the appellant replied that he would leave Lachmana's house in the morning for going back to his house. Ranchor resented the reply and picked-up a quarrel with the appellant. In the course of the quarrel Ranchor became enraged, picked up a wooden plank lying nearby and with it inflicted a blow on the head of the appellant THE appellant snatched the wooden plank from the hands of his father Ranchor and dealt with it 2/3 blows in quick succession on the hand of Ranchor, as a result of which the latter fell down and died after a short while. On seeing Ranchor breathing his last, the other guest went away from there. Lachmana lifted up the dead body of Ranchor and placed it on a cot. He, therefore, sent Roopli wife of the appell-ant to the village Sadaria for giving information about the death of Ranchor. After Roopli's departure Arjun and Jawa came to the house of Lachmana and asked the appellant as to what had happened. THE appellant confessed be-fore them that Ranchor first struck a blow on his head wite a lathi and, there-after, he inflicted three blows on his body as a result of which he died. Arjun and Hira wanted to see the dead body but the appellant refused to uncover it. Arjun and Jawaa thereafter went away from there. In the morning the villagers of Sadaria and Arjun visited the house of Lachmana Arjun sent Hita to lodge a report of this incident with the police at Police Station, Dhamola, District Dun-garpur. However, Hira made a written report to the station House Officer, Dhamola, at village Misalwara, on 7th October, 1976,at 11 am. THE Station House Officer sent the first information report to the Police Station, Dhamola, for registration of a criminal case under section 302, I P. G. against the appellant and rushed to the place of occurrence for investigation into the matter. THE In* charge of the police station, Dhamola, registered a criminal case under section 302, I PC on the basis of the report on 7th October, 1976, at 11 a. m. Mujibur Rahman, Station House Officer inspected the site, prepared a site-inspection memo and a site-plan in the presence of Motbirs. He prepared a panchnama on the dead body of Ranchor and arrested the appellant. While under police custody, the appellant gave the Station House Officer an information that he had concealed a wooden plank inside the house of Lachmana behind the door thereof and that he was prepared to get it recovered at his instance. THE Station House Officer recorded the above information in Ex P. 12 and recovcered the wooden plank from the place mentioned above As at the time of his arrest the appellant had an injury on his head, he was sent for medical examination of his injury. THE dead body of Rancho also was sent to Medical Officer, Primary Health Centre, Sinalwara. Dr. S. L Jain, performed the post-mortem examination over the dead body of Ranchor on 8th October, 1976 and found the following ante-mortem external injuries on its - 1. lacerated wound, 3 x 2x 1/2 cms. at the scalp over the right occipital bone, and right paritetal bone, fractured ; 2. lacerated wound 2x1/2 1 cms. at the right pinna; 3. buries 3x 2 cms at the forehead on right side over the right frontal prominence and frontal bone fractured and fracture extending upto right parietal bone; 4. bruise 4x 3 1/2 cms. with abrasion just below the left patilla; 5. bruise 1x2 cms. at the middle of the right leg; 6. bruise 2x2 cms. at the right knee below right patilla; 7. bruise 4x 3cms. at the right glutial region; In his opinion, the multiple injuries on the head of the deceased injured the brain and caused shock which resulted in his death. THE Doctor definitely opined that the injuries, in his opinion, were sufficient in the ordinary course of nature to cause the death of the deceased. THE appellant was medically exami-ned by Dr. K L. Gandhi, vide injury report Ex. P. 8 which bears his signatures. Dr. K. L. Gandhi could not be examined at the trial as he had died. THE injury report given by him was proved by Dr. S L. Jain, who claimed to have acquain-tance with his signatures. THE injury report reveals that the appellant had one irjury on his head which was as follows: - "lacerated wound with oblique 1" x 1/4" x muscle deep with clotted blood and sepsis on the right side of the frontal region, duration about 2/3 days from the time of examination and giving injury report at 11 am. on 9-10-76. Tender in O. P. D. " THE wooden plank, which was recovered at the instance of the appellant and in consequence of his information recorded under section 27 of the Evidence Act from the house of Lachmana was duly sealed in the presence of Motbirs and, later on, sent to Chemical Examiner for analysis. THE Station House Officer recorded the statements of the material witnesses and after collecting evidence, filed a challan under section 302, I. P. C. against the appellant in the court of the Additional Munsiff and Judicial Magistrate, Dungarpur. THE learned Magis-trate, upon finding a prima-facie case, exclusively triable by the court of Session, committed the appellant to the court of the Additional Sessions Judge, Dungarpur, for trial for the aforesaid offence. THE Additional Sessions Judge tried the appellant and found him guilty of the offence punishable under section 304, Part II, I. P. C. only. He accordingly convicted and sentenced the appellant for the aforesaid offence and acquitted him of the charge of murder.

(3.) IN the instant case, it transpires from the prosecution evidence itself that a quarrel ensued between the appellant and the deceased over the appellant's stay at Lachmana's house for3/4 days. It has come in the evidence of both the eye witnesses namely, Lachmana P. W. 1 and Ratna, P W. 8 that Ranchore on seeing the appellant in the house of Lachmaha asked him to go home as he had been staying there unnecessarily for the last 3/4 days. The appellant told his father that he would go back to his house in the morning. This led to a wordy quarrel between the two. IN the course of the quarrel Ranchor picked-up a wooden plank lying nearby and struck a blow with it on the head of the appellant. The appellant snatched the wooden plank from the hand of his father and inflicted 2/3 blow in quick succession on the latter's head as a result of which he fell down unconscious and dead after a short-while. It is,therefore, evident from the evidence of the eyewitness that the deceased was an aggressor as he was not justified in attacking the appellant with a wooden plank during the wordy quarrel that ensued between the two on the appellant's stay at the house of Lachmana. It is further established by the injury report Ex. P 8, which has been duly proved by the testimony of Dr. S. L. Jain, that the appellant had a lacerated wound l"x 1/4" muscle deep with clots of blood on the right side of the frontal region of his head at the time of his arrest and medical examination. The injury was no doubt a simple one caused by a blunt weapon within 2/3 days from the date of examination, i. e. 9. 10. 1976 at 11 a. m. It appears from the testimony of Lachmana, P. W 1 that Ranchor deceased was in an angry mood and that he wanted to inflict another blow on the body of Jomna with the woodenplank but the weapon was snatched away from his hand by the appellant. From these facts it is established that there was an apprehension of danger to the body of the appellant as he had already received one injury on his head at the hand of the deceased. The violent attitude of the deceased would certainly give rise to a reasonable apprehension in the mind of the appellant that he was in danger of receiving grievous hurt at least and so there was occasion for the exercise of the private defence. The appellant was justified in protecting his person by snatching the wooden plank from the hand of his father, but as soon as the wooden plank was forcibly snatched from the hand of Ranchor appellant, the apprehension of danger did not continue and came to an end There were no such circumstances as could make it probable that the apprehension of danger continued after Ranchor was disabled from causing harm to the appellant The eye-witness did not state in their deposition that after the wooden plank was forcibly snatched by the appellant from the hand of Ranchor, the latter made an attempt to get back the weapon and attack the appellant Once the wooden plank had been seized from the deceased, the right of private defence of person that had accrued to the appellant came to end and did not conmiue because after the deceased was disabled from causing further harm, there was no longer a reasonable apprehension of danger to the body of the appellant. Hence, in the peculiar circumstances of this case, I do not feel inclined to hold that the right of private defence of body continue even after the deceased was disarmed The appellant was, therefore, not justified in causing fatal blows on the head of his father Ranchore. Although the act committed by the appellant did not fail under section 300, I. P. C. yet it was certainly done with the knowledge that he was likely by such act to cause the death of the deceased. IN this view of the matter, no interference is called for with his conviction under section 304, Part II, I. P. C.