1. This is an appeal by Kartar Singh who has been convicted of culpable homicide amounting to murder & sentenced under Section 302, B. P. C. to 'transportation for life i. e , life imprisonment'. The prosecution case is that on the evening of 9.1.1948, one Amar Singh Sikh of village Farangwali had arranged a wrestling competition on the completion of an 'Akhand Path', that the deceased, Gurbachan Singh, who belonged to chak No. 40F, had gone to witness the wrestling, along with Munshi Singh P. W. 6 & his brother Karam Singh P. W. 7 & Kacta Singh p. W. 8 of the same chak that the applt. had also gone to see the wrestling along with the co-accused Tara Singh & Gurbux Singh, that after seeing one or two bouts, the deceased left for his chak at about 6 p. m., along with him aforesaid associates Munshi Singh, Karan Singh' & Kartar Singh & that when the deceased had walked a distance of about 40 paces from the place of wrestling all the three accused, who also were going along on the same routs, suddenly attacked the deceased, who was then a little behind his companions. Kartar Singh applt, & Tara Singh are said to have caused injuries to the deceased with spears with which they were armed as a result of which he felt down & immediately succumbed to his injuries. Gurdayal Singh & Nand Singh, prosecution witnesses who immediately came to the scene & Munshi Singh raised a hue & cry which attracted people from the village & the accused then took to their heels.
2. The first information report of the occurrence was lodged at police station Kearisinghpur, on the night immediately following the occurrence, by Munshi Singh P. W. 6 who was accompanied by one Ramprakash P. w. 5 of chak no. 40F. All the three accused were named in the report as having attacked the deceased & caused his death.
3. The post mortem examination of the body of the deceased revealed that he had five marks of injuries on his body, of which No. 1 on the right arm and injury no. 4 on the left side of the chest, above the heart were perforated injuries & injury No. 5 on the left arm was an incised wound while injuries Nos. 2 & 3 appeared to have been caused by a fall. Injury no. 4 was a grievous hurt which appeared to have been the cause of death by causing rupture of the heart. Of the three persons named in the F. I. R, as assailants the police challaned only Kartar Singh applt. & Tara Singh under Section 302, B. P. C. both of whom were committed to the Sessions Court, for trial under the same section. The Ses. J. sentenced the present applt. to life imprisonment under Section 302 & Tara Singh to R. I. for one year under Section 324, B. P. C. on 23-7-1948. On appeal by Kartar Singh alone the Bikaner H. C. by its order dated 10 9-1948 remanded the case for retrial on the ground of non compliance, by the Sessions Court with the provisions or Section 342, B. Or. P. C. The learned Sea. J. has after re-trial, again sentenced the applt, as already stated above.
4. The facts which could afford a clue to the motive for the crime are that Mt. Gurdayal Kunwar, sister of the deceased, was married, about 12 years before the occurrence, to Megha Singh of village Rampura Phool. Five or six years after the marriage, she eloped with the applt from a fair, after which she retuned with him for about 2 1/2 years & had also a child from him. Subsequently the deceased & Hari Singh, the father of Mt. Gurdayal Kunwar, recovered her from the house of the applt. & on the refusal of her previous husband to take her back, got her married to Munshi Singh P. W. 6 with whom she had been living till the date of occurrence. A criminal case was instituted by the applt. against Munshi Singh & his brother Karan Singh, in connection with the taking away of Mt Gurdayal Kunwar & keeping her in their custody, but the casa had been dismissed, before the present occurrence took place. It is alleged that the applt. was harbouring a grievance against the deceased on account of his hand in the removal of Mt. Gurdayal Kunwar from the applt.'s keeping after she had eloped with him. The deceased bad for some months before the occurrence, been living with his sister Mt. Gurdayal Kunwar & her present husband Munshi Singh, in chak No. 40F & the applt., it is alleged, assisted by the other accused, took advantage of the opportunity, that he got on the date of occurrence & killed him.
5. Daring the police investigations, the applt. who also had injuries on his person, was examined by Dr. Nirmal Singh on the morning of 10-2-1948 & the result of the examination is recorded in the injury report Ex. P-ll. According to this report & the evidence of Dr. Niimal Singh (p. w. 2) the applt had on his body four injuries of which No. 1 on the middle finger of the left band & injury No. 4 on the left shoulder were incised wounds while the remaining two injuries appeared to have been caused by a blunt weapon. In the prosecution story, as related by Munshi Singh, Karan Singh, Kartar Singh & Gurdayal Singh, alleged eye witnesses, on whose evidence the prosecution case rests, the deceased is alleged to have struck, in his self defence, a blow to Kartar Singh applt. with a stick which he (the deceased) was carrying with him. '
6. The main contention of the learned counsel for the applt, Pt. Suryakaran Acharya, is that the injuries on the body of the deceased were inflicted by the applt. in exercise of the right of privates' defence, when he himself was attacked by the deceased. In support of this argument he relies on the nature & number of the injuries proved to have been found on the body of the applt. himself & on certain statements made by the alleged eye witnesses themselves. The applt. according to medical evidence had as already stated, two injuries which appear to have been caused by some blunt weapon & two incised wound? According to Munshi Singh, Karan Singh, Kartar Singh & Gurdayal Singh prosecution witnesses, the deceased had only a stick in his hand with which as already stated, he dealt only one blow to the applt. when he himself was attacked by spears. In the first information report this blow is stated as having been struck on the left arm of the applt. while according to medical evidence there was only one injury on the left arm, which was an incised wound. None of the prosecution witnesses has made any attempt to explain how the incised injuries were caused to the applt. nor is there any explanation as to how more than one injury has been caused to the applt. when only one blow of a blunt weapon was deal. with. Karan Singh P. w. 7 has stated that he cannot say whether the applt. Kartar Singh firsts struck the deceased with his spear or the deceased first struck the lathi blow to the applt. From this evidence, Mr. Acharya seeks to make out that the deceased had some sharp weapon with him at the time o the occurrence & that it was the applt. himself who was first attacked by the deceased & it was then that the applt. or his companion Tara Singh retaliated in self-defence. We are, however, unable to agree with this contention of the learned counsel. At the trial the applt. never took the plea of self-defence. The two witnesses Rama Singh & Kala singh, examined by him in his defence, have said nothing which could be said to support, even, indirectly, such a plea. Their evidence, on the contrary, seems to suggest that the applt. was not on the scene at all. It is true that an accused person can, under certain circumstances be allowed the benefit of the plea of self-defence on the basis of prosecution evidence itself, whether or not he has specifically taken that plea at the trial. In the present case, however, there is nothing in the prosecution evidence to suggest that the applt acted in self defence in causing the injuries in question on the body of the declared. The argument cannot, therefore, be accepted.
7. There is, however, sufficient material in the evidence to indicate that the prosecution story as related by the alleged eye witnesses does not represent the whole truth. As pointed out by Mr. Acharya there is no explanation in the prosecution: evidence, of the incised injuries received by the applt. & their presence is inconsistent with the prosecution version that the deceased was carrying only a stick & inflicted a single blow with it to the applt., in self defence. The applte. had not one but four injuries & they must have been caused either toy the deceased or jointly by him & one or more of his companions.
8. The evidence of Karan Singh P. w. 7, all toady quoted, makes it doubtful whether it wag the deceased who was first to strike or it was the applt. Then again, the evidence of Amar Singh p. w 10. lambardat of the village of occurrence, discloses that the deceased & Munshi Singh, Karan Singh & Kartas Singh proseaution witnesses were found by him to be drunk just about the time of occurrence. The evidence of Kalasingh P. W. 2 is also practically to the same effect. This fact seems to make it probable that there was some quarrel between the parties under the influence of drink while they were bath returning from the wrestling competition & a fight ensued. As the prosecution story stands, it also seems to us that no sufficient motive existed for the applt & his brother accused to make a sudden attack on the deceased, because the removal of Mfc. Gurdayal Kanwar from the keeping of the applt. appears to have been brought about more by her father Hari Singh than by the deceased. To our mind, if the applt. harboured any ill will or grievance against any one it must have been mote against Munshi Singh, present husband of Gurdayal Kanwar with whom there had been criminal litigation, than against the deceased. According to the J. himself, there seems to have been a quarrel between the parties, while they were returning from the wrestling competition, followed by a mutual fight. In the face of the conclusions we have arrived at, we find it difficult to uphold the conviction of the applt. for culpable homicide amounting to murder. There seems to have been a sudden & unpremeditated fights during which the deceased & the accused both caused injuries to each other with weapons which they were carrying with them & in our opinion the applt's. case would be covered by exception 4 to Section 300, Penal Code. The offence of the applt., therefore, falls under Section 304 part I, Penal code. We, accordingly, accept the appeal, after the conviction of the applt. from one under Section 302 to that under Section 304 part I, Penal Code, & reduce the sentence to R. I. for five years.