JUDGMENT V. K. Mehrotra J. 1. APPELLANT Daya Ram has been convicted under Section 302 IPC and sentenced to imprisonment for life by the IV Additional District and Sessions Judge, Saharanpur by judgment dated August 9, 1975. He has also been convicted under Section 25(1)(b) of the Indian Arms Act and sentenced to under go rigorous imprisonment for one year. The charge against him is that at about 6 p.m. on August 9, 1974 he inflicted knife injuries on Ram Bahadur in front of quarter No. 4 of Block No. 112 in Labour Colony of Cloth Mills at Saharanpur. The knife had a blade of a length in excess to the one which could be in possession of the appellant without a licence. The charge under Section 25(1)(b) of the Arms Act is in that regard. 2. THE prosecution came to court with a simple story. It has been alleged on its behalf that the appellant was insisting that the deceased should pay a subscription of Rs. 5/- for Janmashtami celebrations unlike the other who had paid Rs. 21- because the deceased was making sufficient money. On the refusal of the deceased to do so, the appellant assaulted the deceased with a knife repeatedly. Karan Bahadur Singh (PW 1) a brother of the deceased, his nephew Devi Bux, Ganesh Prasad (PW 7) Rameshwar Singh (PW 8). Sukhari Singh and others who had been attracted to the scene of the incident earlier on hearing the altercation between them, had seen the assault on the deceased. THE appellant was given a chase and was apprehended by them after assaulting him when he attempted to escape. Head Constable Iliyas Ahmad and Constable Pritam Singh of Police Outpost Labour Colony, who were on petrol duty, had arrived meanwhile. THE appellant as well as the weapon of assault were handed over to them and a written report made by Karan Bahadur Singh was also sent to the police Station through Rameshwar Singh. In this; report, the above facts were narrated and it was also mentioned that there was old enmity between the reporter and the appellant. THE report came to be recorded at Police Station Sadar Bazar at 7.15 P.M. the same day, namely on August 9, 1974. Ram Bahadur died by the time he reached the hospital. The post mortem examination of his dead body was made by Dr. THE report came to be recorded at Police Station Sadar Bazar at 7.15 P.M. the same day, namely on August 9, 1974. Ram Bahadur died by the time he reached the hospital. The post mortem examination of his dead body was made by Dr. Surendra Singh (PW 6) who was the Medical Officer at the District Hospital and the following ante- mortem injuries were found on it :-(Injuries quoted-Ed.) 3. CLOTTED blood was found present under injury No. 4 on the abdominal wall and fluid blood in the abdominal cavity. Death, according to the doctor, had resulted due to shock and haemorrhage in consequence of injury nos. 1, 2 and 4. These injuries could have been caused by a knife of which the length of the blade was at least 4". The; length of the blade of the knife (Ext. 1) with which the appellant is said to have assaulted the deceased was about 6". Dr. Surendra Singh, in his cross examination, expressed the opinion that the possibility of an injury like injury no. 4 found on the body of Ram Bahadur Singh being caused by a knife with a blade of smaller length was remote. 4. SUB-Inspector Hari Shamker Sharma (PW 10) of Police Station Sadar Bazar was present when the report was lodged there. He took up investigation but could not complete it because he was transferred from that Police Station on August 11, 1974. Station Officer Ishwar Chand Sharma of Police Station Sadar Bazar completed the investigation and submitted charge sheet against the appellant. Pw 2 Karan Bahadur, the younger brother of the deceased who had lodged the first information report :Pw 7 Ganesh Prasad and Pw 8 Rameshwar Singh deposed to the facts of the case as eye-witnesses. Their testimony was accepted by the Trial Judge. The version given by the appellant, which was not accepted by the learned Judge was that on account of the pre-existing enmity with the deceased and the witnesses who belonged to the same community and were of the same family, all of them suddenly burst into his quarter armed with lathis and struck several blows on his head. He used a small knife with which he was cutting vegetables at that time in his self defence. The injuries of the appellant had been examined on August 9, 1974 by Dr. He used a small knife with which he was cutting vegetables at that time in his self defence. The injuries of the appellant had been examined on August 9, 1974 by Dr. S. N. Mandal (DW 1) who was a Medical Officer at District Hospital, Saharanpur when the appellant had been sent for the purpose along with Constable Pritam Singh by Sub-Inspector Hari Shanker Sharma. The injuries which were found on the person of the appellant by Dr. Mandal were these : (Injuries quoted-Ed.) 5. THE appellant was unconscious at that time and was admitted in the hospital. Injury No 2, according to Dr. Mandal, could only have been caused with a lathi if V shaped metallic object was fitted on it. In his cross-examination, it was stated by Dr. Mandal that injury nos.1, 3 and 4 could also be caused by a split fire wood but injury no. 2 could only be caused by such fire wood if it was in V shape. He added that normally split fire wood does not assume a V shape. 6. THE injuries on the perse of the appellant were sought to be explained by the eye-witnesses including the reporter, by saying that when the appellant was trying to escape, he was over-powered by being hit with split firewood which had been picked up by the witnesses at the scene of the incident where they were lying. THE witnesses were consistent in their assertion that they were all unarmed when they went to the place of the assault upon the deceased on hearing the altercation between him and the appellant. None of the witnesses, according to their statement, had handed over the split fire-wood to the Investigating Officer. Neither the Investigating Officer, who reachad the scene of the incident at about 9 P. M. the same day nor Head Constable Iliyas Ahmad PW 3 was shown any split fire-wood by the witnesses who claimed to have used them against the appellant while over-powering him. From the evidence of each of the eye-witnesses, it is clear that the in- juries of the appellant were bleeding. Head Constable Iliyas Ahmad found blood on the clothes of the appellant. According to P.W. 2 Karan Bahadur Singh the split firewood with which Ganesh Prasad and Rameshwar had struk the appellant was also stained with blood. From the evidence of each of the eye-witnesses, it is clear that the in- juries of the appellant were bleeding. Head Constable Iliyas Ahmad found blood on the clothes of the appellant. According to P.W. 2 Karan Bahadur Singh the split firewood with which Ganesh Prasad and Rameshwar had struk the appellant was also stained with blood. In the space between the quarter of the appellant and the metalled road also the blood of the appellant bad failed. PW 7 Ganesh Prasad, one of the persons who allegedly over-powered the appellant after striking him with a piece of wood, also categorically stated that the head injuries of the appellant were bleeding and that blood had fallen on the earthen space near his quarter at the place where he had been struck and over-powered. He further stated that he had pointed out this place as well to the Investigating Officer. However, from the statement of the Investigating Officer, it appears that he did not find blood in the space adjoining the quarter of the appellant. The Investigating Officer gave out in his cross-examination that there was an entry in the general diary about the injuries of the appellant which included a bleeding injury on his head and oozing of blood from his nose. He categorically stated that during investigation, no one handed over to him any piece of wood with which the appellant is alleged to have been struck. 7. FROM the testimony of Dr. S. N. Mandal (DW 1) who examined the injuries of the appellant within about two hours of the incident at 8. 15 P. M. on August 9, 1974, it appears clear that all the injuries, particularly injury No. 2 which was a V shaped lacerated wound on the frontal region of head in the mid-line, could not normally be caused by the same weapon nor could injury no. 2 in particular be caused by a split fire-wood. When the appellant was taken to him for medical examination, he was unconscious. The injuries, according to Dr. Mandal, appeared to have been caused by some blunt weapon except injury no. 5 (the abration) which could have been caused by friction. The reporter claims that he had reached the scene of the incident without any arms and the others also were unarmed and no one hit the appellant with a lathi. The injuries, according to Dr. Mandal, appeared to have been caused by some blunt weapon except injury no. 5 (the abration) which could have been caused by friction. The reporter claims that he had reached the scene of the incident without any arms and the others also were unarmed and no one hit the appellant with a lathi. The two witnesses, other than the reporter are said to have picked up split fire-wood lying nearby and to have hit the appellant with it. Though the pieces of wood with which the appellant is alleged to have been struck were stained with blood, yet not a single piece was handed over to the Investigating Officer nor was the place from where these pieces were picked up shown to him by the reporter. No such piece was shown even to Head Constable Iliyas Ahmad (PW 2) who had actually been given the custody of the appellant by the reporter and the other witnesses and had reached the place of the incident at about 6.15 or 6.30 in the evening on patrol duty. The blood stained knife (Ext. 1) was handed over by PW 7 Ganesh Prasad to the Head Constable who had found, at that time, injuries on the person of the appellant. If, as alleged by the eye-witnesses, the appellant had been struck by the pieces of wood, which got stained with his blood, one would expect that these blood stained pieces would be shown to and handed over to police officer The absence of any such action suggests that the story that the appellant had been struck with pieces of wood while he was being over-powered is not the correct version. 8. IN his statement during cross -examination, PW 2 Karan Bahadur stated that there was a case under Section 107/117 CrPC between deceased Ram Bahadur and the appellant prior to the incident but had been compromised between them. If that was so, it would appear unnatural for the appellant to have been so enraged on the refusal of the deceased to subscribe a sum of Rs. 5/- on the occasion of Janmashtami as to make a murderous assault upon him with a knife. IN case there was pre-existing enmity between him and the deceased, as mentioned also in the first information report, the appellant cannot be normally expected to go to the deceased for realising subscription. 5/- on the occasion of Janmashtami as to make a murderous assault upon him with a knife. IN case there was pre-existing enmity between him and the deceased, as mentioned also in the first information report, the appellant cannot be normally expected to go to the deceased for realising subscription. Besides, it has been stated by PW 2 Karan Bahadur that when the appellant had gone to the deceased asking for subscription, he was accompanied by several persons. No such person, is, however, forth coming to support the allegation of the prosecution that the appellant, had, in fact, gone to the deceased to ask for subscription. It appears that the dispute between the deceased and the appellant took place for some other reason and that the reason suggested by the prosecution is not the true one. PW 7 Ganesh Prasad, according to the statement of reporter Karan Bahadur himself, lives in a quarter which was originally allotted in the name of Hitman Bahadur, another elder brother of the reporter and after his death in the name of the reporter. He is ostensibly an interested witness. PW 8 Rameshwar Singh has denied the suggestion made to him that he was sister's son of Karan Bahadur's mother but has acknowledged that he had known the reporter ever since he hail joined service in the Cloth Mills. He is in service since about 15 years. He was sitting near the stair case outside his own quarter when he heard the altercation between the appellant and the deceased. This quarter is at a distance of about 40 to SO feet from that of the appellant. The claim made by this witness that he was staying in a quarter so near that of the appellant does not seen to be correct because we find from his cross-examination that quarter No.10 in Block No. 3 which is at a distance of about two and a half to three furlongs from the quarter of the appellant is allotted in his name. The witness claimed that he had exchanged that quarter with the one in which he claims to be living with Bechan Ram DW 2. The witness claimed that he had exchanged that quarter with the one in which he claims to be living with Bechan Ram DW 2. Abdul Jabbar Khan, Assistant Housing INspector of the Labour Colony, has stated that only those persons can live in a quarter which is allotted to them and that he makes periodical physical checking of the quarters at intervals of a fortnight or a month to find out as to whether an unauthorised person is occupying a quarter. This statement is suggestive of the fact that in the normal course, it would not have been possible for PW 8 Rameshwar Singh to reside in the quarter near that of the appellant when another quarter at a distance of about 2 1/2 to 3 furlongs stood allotted to him. The presence of this witness near the scene of the incident, thus, becomes doubtful. From the aforesaid circumstances noticed by us, it seems that the version of the incident given by the prosecution is not quite correct. The origin of the dispute between the deceased and the appellant and the manner and circumstances in which the appellant sustained the injuries found on his person shortly after the incident are not clearly made out from the evidence led on behalf of the prosecution. The failure of the prosecution to give out the true version makes the case against the appellant doubtful in so far as it relates to the assault on the deceased. He is entitled to the benefit of that doubt. 9. AS regards the charge of being in possession of a knife with blade of a length in excess of the permissible one, without obtaining a licence for it, suffice it to say that even from the own statement of the appellant it is clear that be was possessed of a knife which according to him was used by him in self-defence. Exhibit 1 which was found to be in possession of the appellant and in regard to which there is consistent evidence, when measured in the trial court, was found to be 15 cm. in length. The appellant had it in his possession without a licence in contravention of Notification No. 7772-R/8-B-11-272-70 dated September 29, 1967. The offence under Section 25 (1) (b) of the Arms Act is clearly made out against the appellant. 10. in length. The appellant had it in his possession without a licence in contravention of Notification No. 7772-R/8-B-11-272-70 dated September 29, 1967. The offence under Section 25 (1) (b) of the Arms Act is clearly made out against the appellant. 10. THE appellant was apprehended on August 9, 1964 and was directed to be released on bail by order dated January 28, 1975 during the pendency of the trial. He was convicted by Judgment dated August 30, 1975 and taken into custody on that date. Later, by order dated September 12, 1975, this court directed his release on bail during the pendency of the present appeal. He has, thus, remained in jail for several months wihich is a substantial portion of the sentence of one year awarded to him by the trial judge for the offence Under the Arms Act. We accept the appeal in regard to the conviction of the appellant under Section 302 IPC. His conviction under the provision and the sentence of imprisonment for life are set aside. His appeal against his conviction under Section 25 (1)(b) of the Indian Arms Act is dismissed but, having regard to the circumstances of the instant case, we reduce the sentence under that count to the period already undergone. The appellant is on bail. He need not surrender. His bail bounds are discharged. Ordered accordingly.