J.P. Desai, J.
1. The respondent Koli Manu Ravji was tried by the learned Additional Sessions Judge, Bhavnagar in , Sessions Case No. 68 of 1982 for offences punishable under Sections 302, 324, 323 and 504, I. P. C. The learned Additional Sessions Judge came to the-conclusion that the accused had given knife blows to the deceased and caused his death, but while exercising his right of private defence, he had exceeded the said right and, therefore, the offence committed by him was one punishable under Section 304, Part I, I. P. C. and not under Section 302 I.P.C. He also reached a conclusion that the accused had also caused hurt to Bhagwatiben, the mother of the deceased and thereby committed an offence punishable under Section 323 I. P.C. The learned Additional Sessions Judge sentenced the accused to rigorous imprisonment for three years and to pay a fine of Rs. 100/- and in default, rigorous imprisonment for one month for the offence punishable under Section 304, Part I, I. P. C. and to rigorous imprisonment for three months for the offence punishable under Section 324 I, P. C., the substantive sentences having been ordered to run concurrently. The State being dissatisfied with the acquittal of the accused for the offence of murder has come in appeal before this Court.
2-10. The facts leading to the filing of this appeal may be briefly stated as follows:
One Balmukund was the son of prosecution witness Bhagwatiben Nandlal. He was residing with his mother at Bhavnagar. The accused was residing in the house opposite to the house of this Bhagwatiben. On 30-4-1982 at about 11 P. M. the accused went near the house of the deceased Balmukund and started giving abuses. Balmukund who was sleeping in his house asked the accused not to give abuses and stated that he was coming down. So saying, he came down and before he came down, Bhagwatiben also came down and she opened the Khadki door and came out. and when Balmukund was about to come out of the Khadki door, the accused caught hold of him and began to give successive knife blows to Balmukund. The accused took Balmukund while giving blows near a cot on which one Naniben was sleeping. Balmukund dashed against that cot and fell down. When Bhagwatiben intervened to save her son Balmukund, the accused gave two knife blows to her. The accused then ran away from the scene of the incident. Balmukunds sister came there and she took Bhagwatiben and Balmukund to the hospital. The complaint of Bhagwatiben was recorded by the Police Officer who went to the hospital. Balmukund expired in the hospital during treatment. The evidence of Dr. Buch shows that the incised wound which was found on the little finger of the left hand is possible if the injured handled the knife and tried to give a blow to another and the knife slipped, while the abrasions were possible by a hard and blunt substance. He admitted in cross-examination that injuries Nos. 2 and 3 are possible by a hard and blunt substance like a log of wood. He also admitted that injury No. 1 was possible by a sharp-edge of the Muddamal 'Is', while the other injuries were possible by the remaining portion of the 'Is'. Now, there is no material on record to show that the deceased or anybody else had given any blows to the accused at the time of this incident. There is no such suggestion either in cross-examination of any of the witnesses or in the statement of the accused. Injuury No. 1, as stated by Dr. Buch, is possible if the accused handled the knife while giving blows to the deceased. We are inclined to say from the nature of the injury and the medical evidence on record that the said injury must have been caused to the accused while handling the knife. This injury was again not a serious injury. The other two injuries might have been caused during the scuffle between the accused and the deceased. They are very minor abrasions which might have been caused to him when he was practically dragging the deceased up to the cot on which Naniben was lying. The injuries are so minor and so superficial that none would notice such injuries on the person of the accused. Injury No. 1, of course, was a bleeding injury but the bleeding must not have been profuse looking to the nature of the injury and the part on which the injury was found was such that at the time of this incident Bhagwatiben will not notice that injury. Hence the evidence of Bhagwatiben cannot be discarded or doubted because she does not admit that she had seen any such injuries on the person of the accused. The prosecution will be bound to explain injuries on the person of the accused if they are on visible parts of the body and are of a serious nature. We are fortified in this conclusion of ours by the decision of the Supreme Court reported in Jagdish v. State of Rajasthan : 1979CriLJ888 . The Supreme Court observed that it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the Court as to the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution, two conditions must be satisfied:
(1) that the injuries on the person of the accused must be very serious and severe and not superficial;
(2) that it must be shown that these injuries must have been caused at the time of the occurrence in question.
There is nothing on record to show that all the injuries which were found on the person of the accused were caused to him at the time of this incident. So far as injury No. 1 is concerned, it probably might have been caused at the time of this incident while handling the knife. But so far as the other two injuries are concerned, there is nothing on record to show that they were caused to him at the time of this incident. We may mention here even at the cost of repetition that no suggestion was made to any of the prosecution witnesses that the accused was given the blows by someone at the time of this incident. The accused also does not say a word in his statement that he was given blows by the deceased or by any prosecution witness. He even denies that he gave complaint at the police station. In view of this, the presence of injuries does not assist the accused in any way.
11. Now, we have not accepted the view of the learned trial Judge that the deceased had come out with an 'Is' in his hand. But even if we assume for the sake of argument that the deceased had come out with an 'Is' and had even raised that 'Is' against the accused, then also, in our opinion, the accused will not be entitled to claim a right of private defence. The accused went to the house of the deceased with a knife arid started abusing the deceased whereupon the deceased was obliged to come down. The accused thus went to the house of the deceased with a premeditation to attack the deceased. This is also evident from the evidence of Bhagwatiben who says that when her son was about to come out or the Khadki door, the accused started giving knife blows to him. The accused was thus an aggressor in the present case. He cannot claim any right of private defence. We are fortified in this view of ours by two decisions of the Supreme Court. In the case of Kishan v. State of Madhya Pradesh : 1974CriLJ324 , the Supreme Court has held that when the appellant was the aggressor, he could not claim right of self-defence against the deceased.
12. In the case of Sone Lal v. State of U.P. : 1981CriLJ1027 it appears that the accused party was found to be an aggressor and injuries were caused to some of the accused by the deceased in exercise of the right of private defence. The Supreme Court held that when the incident took place on the land belonging to the victims, the deceased had light of private defence, while the accused could not claim such a right. In the present case also the accused went near the house of the deceased and started giving abuses whereupon deceased came down with a view to pacify the accused and at that time the accused started giving knife blows. In view of this, it is clear that the accused had no right of private defence whatsoever even assuming for the sake of argument that the deceased had come out with an 'Is' in his hand.
13. The discussion made above will go to show that the accused had no right of private defence and the question of his exceeding the same will not arise. It appears that the learned trial Judge, with respect to him, lost sight of this situation and assumed that the accused had a right of self-defence and exceeded the same.
14. The accused went to the house of the deceased with a knife, he gave abuses whereupon the deceased was obliged to come down. Then the accused started giving blows with the knife and caused as many as 14 incised wounds to the deceased. The time selected was again 11 p. m. This was clearly a case of premeditated act on the part of the accused and it is clear that he intended to cause the death of the deceased. Some of the injuries caused by a knife coupled with the internal injuries were sufficient in the ordinary course of nature to cause death, as discussed by us a little earlier. The accused had no right of self-defence in the present case as he was an aggressor. The circumstances to make out a case of self-defence are also not established in the present case. The fact that he even caused injuries to Bhagwatiben who intervened to save her son and after giving blows to Bhagwatiben, again gave some blows to the deceased with the knife clearly indicates the intention of the accused to cause the death of the deceased Balmukund. The accused thus committed the offence of murder punishable under Section 302 I. P C. The learned Additional Sessions Judge, with respect to him, fell into an error in reaching the conclusion that the accused was entitled to right of self-defence and had exceeded the same
15-17. Before parting with this case, we are constrained to observe here that the sentence imposed upon the accused by the learned trial Judge for the offence punishable under Section 304, Part I, I. P. C. in the present, case was grossly inadequate. Even if the accused was entitled to right of self-defence as held by the learned trial Judge, then also, in our opinion, the sentence of rigorous imprisonment for only three years can be said to be grossly inadequate when the accused sustained only minor injuries, while he gave as many as 14 blows with a knife on the person of the deceased. The quantum of sentence will depend upon the facts and circumstances of each case. It is a matter within the discretion of the trial Court. But that discretion is indeed required to be exercised judicially and not arbitrarily or in a fanciful manner. Sentence should neither be excessive nor too lenient, as in the present case.