JUDGMENT
S.P. Khare, J.
1. Appellant Mangal has been convicted under Section 302, Indian Penal Code and sentenced to imprisonment for life. Appellant Chironjilal has been convicted under Section 323, Indian Penal Code and sentenced to the period of imprisonment already spent by him in jail.
2. The prosecution case is that on 25-5-1982 at 10.30 P.M. deceased Gomti Prasad was going with his brother Chandra Singh (P.W. 1) to a nearby betel shop in Ghamapur. When they reached near the crossing the deceased was surrounded by appellants Mangal and Chironjilal and 5 other persons. Appellant Mangal is said to have caused injuries on the head of the deceased with a Farsa by inflicting two blows. Appellant Chironjilal is said to have caused injuries to Chandra Singh (P.W. 1) with a Lathi. The incident is said to have been witnessed by Halkai (P.W. 3) also who is father of the deceased. The FIR was lodged by Chandra Singh (P.W. 1) at Ghamapur Police Station at 11 P.M. on the same day and that is Ex. P-1. The panchnama of the dead body of Gomti Prasad was prepared. The post-mortem was conducted by Dr. D.K. Sakallay (P.W. 2). -In his opinion in the post-mortem report (Ex. P-2) the cause of death was the head injury.
3. The accused persons pleaded not guilty. The defence of accused Mangal as set out in his statement under Section 313, Cr.PC is that deceased Gomti Prasad with Halkai (P.W. 3) and Chandra Singh (P.W. 1) came to his house and assaulted his sisters and other ladies present in the house. He has further stated that he snatched Farsa of Halkai (P.W. 3) and in his self-defence caused injuries to the deceased. The Trial Court acquitted 5 persons and convicted the two appellants.
4. In this appeal it has been argued on behalf of appellant Mangal that the story of the deceased going to the Pan shop is false. It is argued that he trespassed into the house of accused Mangal and caused injuries to ladies. It is pointed out that appellant Chironjilal sustained fracture in his hand in this incident and a criminal case under Section 325, IPC has been filed against Chandra Singh (P.W. 1), Halkai (P.W. 3) and some other persons. It is contended that in view of the injuries on the side of the accused persons the plea of private defence of person set-up by accused Mangal is rendered reasonable and probable.
5. The evidence on record has been scrutinized by us. It is no longer in dispute that deceased Gomti Prasad sustained head injury at the hands of accused Mangal. The only point which has been debated is whether accused Mangal intentionally caused this fatal injury or he did so in exercise of the right of private defence. The evidence on record has to be examined to decide this crucial point.
6. Dr. D.K. Sakallay (P.W. 2) conducted the autopsy on the dead body of Gomti Prasad on 26-5-1982. His report is Ex. P-2. He has deposed that there was bleeding from the nose of the deceased. He found 7-1/4″ wound extending from medial part of left lower eye-lid to parietal region of the left side 2″ lateral to mid-line near the parietal eminence. It was slightly oblique and anterior part was near to the mid-line. There was gapping of half inch. The margins were clean cut and ends were pointed. There was clean cutting of both eye-lids. The frontal bone including the sinus were cut. He has given full details of this injury in his report. There was also cutting of parietal lobe of the brain in its anterior part.
7. The injuries sustained by Chandra Singh (P.W. 1), Halkai (P.W. 3) and the persons on the side of the accused are as under:–
Chandra Singh (P.W. 1) :
(1) L W Rt. parietal ant. part 1″ x 1/2″ skin deep.
(2) L W between Lt. thumb and index finger 1/2″ x 1/2″ x 1/4″.
Halkai (P.W. 3) :
L W below Rt. elbow 1″ x 1″ x 1/4″
Chironjilal :
Contusion Lt. arm 1″ x 1″.
Daulat :
Lacerated wound Lt. side head 1/2″ x 1/2″ x 1/4″.
Vajeeraj Bai :
Lacerated wound Lt. Palm 1/2″ x 1/2″ x 1/4″.
Chand Bai :
No evidence of external injury.
Chando Bai :
No evidence of external injury.
Maya Bai :
L W Lt. arm 1/2″ x 1/2″ x 1″
Shakila :
No evidence of external injury.
8. It is found from a perusal of injuries mentioned above that accused Chironjilal was having a fracture of the upper end of ulna bone in the left hand. The injuries sustained by the other persons on the side of the accused persons are very minor. The question is whether in such a situation the right of private defence had accrued to accused Mangal.
9. Chandra Singh (P.W. 1) has deposed that he and his brother deceased Gomti Prasad were going to the betel shop in Jhanda Chowk and his brother was assaulted by accused Mangal at that place. He has further deposed that his cousin sister Leela is married to accused Mangal and his younger sister Shakila was also in the house of accused Mangal on that day. According to him, accused Mangal had abducted Shakila 15 days before this incident. He has further stated that he had reprimanded accused Mangal for his conduct in taking away Shakila. Shakila was already married to Ramsingh, who was living in Damoh. She was aged about 20 years. He himself did not lodge any report regarding that incident but Ramsingh, who is husband of Shakila, has lodged a report at Ghamapur Police Station. In cross-examination in Para 22 he has denied the suggestion that he had gone to house of accused Mangal with his brother Gomti Prasad and other persons and caused injuries to the sisters of accused Mangal. He has also denied that his father Halkai was armed with a Farsa and accused Mangal relieved him of that Farm and used it in his self-defence, which resulted in injuries to Gomti Prasad. During the course of the arguments, the learned Counsel for appellant Mangal has stated that Shakila was living with Mangal in his house voluntarily and, therefore, the act of the deceased and the other persons who came with him amounted to abduction of Shakila from the house of accused Mangal. This argument is not acceptable in face of the evidence on record. Halkai (P.W. 3) has deposed that accused Mangal had abducted Shakila a few days before the present incident. This witness has denied that he was armed with Farsa at the time of incident. It is note-worthy that accused Mangal has not brought on record the FIR of the counter case from which it could be ascertained whether it was the first version of accused Mangal that deceased Gomti Prasad had come to his house to take away Shakila. According to the evidence available in the present case, the incident took place near Jhanda Chowk which is near the house of accused Mangal and not inside his house. Accused Mangal was already married to Leela Bai and there was absolutely no justification for him to take away Shakila with him. As already mentioned Shakila was also a married lady. In this situation if the close relations of Shakila had come to the house of accused Manga! to take her that does not amount to abduction of Shakila by Chandra Singh (P. W. 1) or his brother Gomti Prasad or his father Halkai (P.W. 3). Accused Mangal and the inmates of the house had no legal or moral justification in detaining Shakila in their house. She was a married young lady. She has not been examined as a defence witness to prove that she was living in the house of accused Mangal of her own accord. Accused Mangal had no right of private defence. It appears that the injuries to the persons on the side of the accused were sustained by them in the scuffle which took place between them and deceased Gomti Prasad and his father and brother. There is no reasonable probability that accused Chironjilal had sustained the fracture before the fatal injury was inflicted by accused Mangal on the head of Gomti Prasad. The defence of accused Mangal that Halkai (P.W. 3) was armed with Farsa is false. Accused Mangal was himself armed with Farsa and intentionally caused the fatal injury on the head of Gomti Prasad. The size and nature of the injury mentioned above clearly go to show that accused Mangal intentionally caused the death of Gomti Prasad. The injury was of a very serious nature caused by Farsa which is a lethal weapon.
10. It has been argued that the injuries sustained by the persons on the side of the accused have not been explained by the prosecution witnesses. Those injuries except that of accused Chironjilal are of very minor nature and even the injury of accused Chironjilal is such that it could be sustained during the scuffle between the two parties. It is not necessary for the prosecution to explain injuries of the accused persons where the injuries are minor and superficial. (Rizan v. Slate of Chhattisgarh, AIR 2003 SC 976). Accused Mangal had no justification to attack Gomti Prasad with Farsa on his head causing serious injury. The learned Counsel for the appellants has cited the decision of the Supreme Court in Vishwanath v. State of U.P,, AIR 1960 SC 67. In the present case it can not be said that the deceased was abducting Shakila from the house of accused Mangal. On the contrary it was accused Mangal who had taken away Shakila from the house of her uncle without any justification. Shakila was not living with accused Mangal voluntarily. As already mentioned accused Mangal was already married and he could not bring another married lady in his house. The uncle and brothers of Shakila even if they had come to take her were not guilty of commission of the any offence much less abducting her or taking her away against her wishes. As mentioned above Shakila was an important witness to probablise the defence of accused Mangal and she has not been examined. The FIR lodged by the accused persons has also not been brought on record to ascertain what was the first version of accused Mangal regarding the incident. The plea of self-defence set-up by accused Mangal has been rightly rejected by the Trial Court.
11. As mentioned above accused Mangal intentionally caused the death of Gomti Prasad by causing injuries on his head with a Farsa. The act of accused Mangal was so imminently dangerous that he must be attributed with the knowledge that it would in all probability cause the death of the deceased. The conviction of appellant Mangal for the offence punishable under Section 302, Indian Penal Code is well merited. His appeal is dismissed. Similarly the appeal of appellant Chironjilal is also devoid of any substance. He has been convicted under Section 323, Indian Penal Code only. His appeal is also dismissed.