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1971 (2) TMI 126

..... nd each of them sentenced to life imprisonment by the Additional Sessions Judge, Rampur. They were further convicted of offences Under Sections 324, 323 read with 34 Indian Penal Code and each of them sentenced to Rigorous imprisonment for one year and six months respectively under the two counts. The sentences were directed to run concurrently. In appeal the High Court acquitted Jiwan and Janki of the Offence of murder Under Section 302 read with 34 and instead convicted them of offence Under Section 325 read with 34 I.P.C. for each of them Was sentenced to five years Rigorous imprisonment. Their convictions and sentences Under Section 324 and 323 were maintained. The conviction of Sohan Lal for an offence Under Section 302 read with 34 was converted into one Under Section 302 I.P.C. simpliciter. The sentence of life imprisonment for the offence of murder as well as conviction and sentence Under Section 324, 323 read with 34 was maintained, Sohanlal has filed this Appeal by Special Leave. It is contended on behalf of the appellant that as there is no evidence that he gave any fatal injury to the deceased the conviction & sentences Under Section 302 also cannot be sustained. It .....

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..... own and became unconcious. Makhan received several lathi blows and Chunni received a spear and lathi blow. Makhan and Chunni then cried for help and on hearing their hue and cry Tota Ram P.W. 3, RamlaJ P W. 4 and Pami rushed from the nearby fields and asked the accused "if they were going to kill them". Then accused Sohanlal threw his lathi and grappled with Makhan. At that time when Makhan and Appellant were grappling Jiwan aimed a Suja blow on Makhan but Makhan moved aside and the Suja blow fell on Sohanlal. There after the accused accompanied by Chameli went away towards the village Kapnairi. After the accused left, Makhan sent Chunni to bring a bullock cart from Kapnairi and after the bullock cart arrived Makhan and Chunni look Jhanjan to Milak Police Station situated at about 9 miles from the place of incident but Jhanjan succumbed to his injuries while he was be ing so taken. Makhan then lodged a F.I.R. of the occurrence at about 9.15 p.m. on the same day at Milak Police Station. The Police registered a case Under Section 302, 323 and 324 Indian Penal Code and started the investigation. About 10 minutes thereafter accused Sohanlal also reached the same Police Statio .....

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..... it is said that from Sohan Lal's house a blood stained lathi was recovered After preparing a recovery Memo, collecting blood stained earth at the place of the occurrence all these Memos were sent to the Chemical examiner. Accused Janki was arrested on 15-1-65 while Jiwan surrendered to the A.D.M. Rampur on 22-2-65. 5. The defence of Sohanlal is that at about 1 p.m. on 14-1-65 Makhan Chunni and Jhanjan and one Pyare and Punni were bringing his sister Chameli Who was married to Makhan about 3 years ago, from his house; that at that time he along with his brother Babu and Janki were bringing sugarcane in a bullockcart and that when he asked Makhan why he had brought his sister in his absence from his house, Makhan retorted that she was his wife. When he remonstrated Chunni gave him a gupti blow after which fighting started between the parties, which was witnessed by Dori and Mathuri, but after the fighting stopped he and his brother together with Chameli went away to village Kapainiri and thereafter he lodged an F.I.R. with the Milak Police Station. In the F.I.R. given by Sohanlal he had stated that when Chunni gave him a gupti blow his brother Babu fled away on account of fear. H .....

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..... rescue his sister and if his attempt was resisted and force was used against him he could exercise his right of private defence and use such force against the assailants as was sufficient for that purpose that Sohan Lal in his attempt to rescue his sister from the abductor himself received injuries which would show that Makhan and his party were aggressive and that any force he may have used in exercise of the right of private defence under Fifthly of Section 100 and in the alternative Under Section 101 I.P.C. (2) In any case he cannot be convicted under sec, 302 because the evidence does not show that he had inflicted a lathi blow on the head of the deceased because the eye witnesses say that Appellant had given only one blow with a lathi and that was not on the head of the deceased so as to warrant a conviction of murder Under Section 302. The blow that is said to have been given by Appellant with a lathi was inflicted on Makhan and not on the deceased. 8. Taking the last point first we propose to examine the evidence of all the four eye witnesses Makhan, P.W. 1, Chuni Lal P.W. 2, Tota Ram, P.W. 3 and Ram Lal P.W. 4. Accordance to all these four witnesses Sohan Lal was armed wit .....

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..... ntly the lathi could not have got blood stains from such an in jury In our view the evidence of the prosecution does not justify the conviction of the Appellant Under Section 302 simpliciter. The State not having appealed against acquittal of the co-accused Under Section 302 IPG read with 34 we cannot consider whether the Appellant is guilty under these Sections with the result that the Appellant will have to be acquitted of the charge of murder and instead will have to be convicted Under Section 325 read with 34 in that he along with the two other accused attacked with dangerous weapons and injured Makhan and the deceased with the common intention of causing grievous injury. The learned Advocate for the Appellant however submits that the Appellant cannot be guilty of any offence as he had inflicted these injuries in exercise of his right of private defence to rescue his sister who was being abducted by Makhan and his companions. 10. Prima-facie there would be no question of abduction when a husband takes his wife with him but relying on the evidence of Chameli that she would not have gone with him but for the deceit played upon her by representing that she was called by the Appell .....

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