JUDGMENT 1. - This criminal jail appeal is directed against the judgment of learned Additional Sessions Judge, Sirohi dated March 31, 1975 convicting the accused appellant under section 302 and 392 IPC and sentencing him to imprisonment for life and rigorous imprisonment for 7 years respectively. 2. The prosecution story in brief is that Chhaganya, PW 5 had borrowed a mare from Vajja Patel and while returning back to his village, the accused forcibly took away the mare by threatening Chhaganya with a knife. Chhaganya immediately went to the house of his uncle Prabhuda and told him about the incident. Prabhuda raised a hue and cry and pursued the accused. PW1 Gujara and PW 2 Poma also chased the accused. Having seen these persons, the accused got down from the mare and inflicted a knife blow on the chest of Prabhuda, who fell down on the ground. As PW 1 and PW 2 had come close to the accused, the accused threw the knife, shoes, shirt and also left the mare and ran away, Prabhuda succumbed to the injuries on the spot. After some time Lungi, Chhaganya, Cheema, Chokla, Rangla and Poona also came on the spot. Lungi and Chhagania remained near the dead body of Prabhuda and rest of the persons tried to search the accused, but he could not be caught. Gujara PW I lodged a First Information Report Ex. P 1A at Police Station Rohera in the night intervening 31st October and 1st November, 1974 at 1.00 A.M. The dead body of Prabhuda was sent for post mortem examination. Dr. Harish Chandra PW 6 performed the autopsy on the dead body of Prabhuda on 1-11-1974 at about 5.00 P.M. According to the post mortem report, there was an incised punctured wound 11/2" x 1/4" x 31/2" on the left second inter costal space. In the opinion of the doctor the cause of death was rupture of the heart and left lung resulting in severe hemorrhage and shock. In the opinion of the doctor injury was sufficient in the ordinary course of nature to cause death and the injury was anti mortem and could have been caused by a knife. The doctor further said that as a result of this injury, the person should die within ten minutes. In the opinion of the doctor injury was sufficient in the ordinary course of nature to cause death and the injury was anti mortem and could have been caused by a knife. The doctor further said that as a result of this injury, the person should die within ten minutes. The police after usual investigation filed a challan in the court of Judicial Magistrate, Abu Road, who committed the accused for trial in the court of sessions. The learned Additional Sessions Judge, Sirohi, who tried the case, framed charges under sections 392 and 302 IPC against the accused. The accused pleaded not guilty to the charges and claimed to be tried. The prosecution in support of its case examined 11 witnesses and the statement of accused was recorded under Section 313 Cr P.C. and the accused produced one witness DW 1 Deva in defence. The learned Additional Sessions Judge after considering the entire evidence in detail found the charges proved against the accused and convicted and sentenced the accused as mentioned above. 3. It is proved beyond any manner of doubt by the evidence of Dr. Harish Chandra, PW 6 and the post mortem report Ex. P. 2 that Prabhuda had an incised punctured wound and the cause of death was rupture of the heart and left lung. The injury was sufficient to cause death and the nature of injury was such that the person should have died within ten minutes. Thus, the death of Prabhuda was homicidal in nature. PW 5 Chhagenia has clearly stated that he had borrowed the mare belonging to Vajja Patel for taking one Punma to Camboi as he was a lame person. After taking Punma to Camboi, he was returning back on the mare to village Bori. At about sun set the accused intercepted and asked him to hand over the mare and threatened to beat him if he did not comply. The witness told the accused that the mare did not belong to him. On this the accused took out a knife and threatened to kill him and took the mare from him forcibly. Chhagania then went to his uncle Prabhuda and narrated the entire incident.Prabhuda chased the accused. After some time Chhagania and his father's sister Lungi also followed and found Prabhuda lying dead. Gujara and Punma were already there and Rangla, Cheema came afterwards. Chhagania then went to his uncle Prabhuda and narrated the entire incident.Prabhuda chased the accused. After some time Chhagania and his father's sister Lungi also followed and found Prabhuda lying dead. Gujara and Punma were already there and Rangla, Cheema came afterwards. Gujara told him on the spot that the accused Bootka had killed Prabhuda. The learned Additional Sessions Judge has placed reliance on the statement of PW 5 Chhangania and Mr. Rajendra Singh Rathore, Amicus Curiae was unable to point out any infirmity in the statement of PW 5 Chhagania. We, therefore, uphold the conviction and sentence of the accused under section 392 IPC. 4. As regards the charges u/s. 302 IPC, there is direct evidence of PW1 Gujara and PW2 Poma who are eye witnesses of the incident. PW 1 Gujara stated that at the time of the incident he was at his field when he heard an alarm raised by Prabhuda that some one was taking away the mare belonging to the Patel. Having heard the alarm Gujara ran towards Prabhuda and he saw the accused inflicting the knife blow on the chest of Prabhuda. The accused on seeing Gujara and other persons, left his shirt, knife, shoes and mare on the spot and ran away. As a result of the knife blow Prabhuda died on the spot. Chhagania also came on the spot and narrated the incident about the robbery. PW 2 Poma has also stated that at the time of the incident he was at his house. He heard an alarm and saw the accused inflicting knife blow on Prabhuda. Prabhuda fell on the ground. The accused left his belongings on the spot and ran away. He reached the spot soon after the incident and chased the accused but the accused escaped and could not be caught on the spot. The prosecution, apart from above two eye witnesses, also examined PW 3 Galji who has stated that on the day of the incident he had gone to village Teelarva to pay condolence visit at the house of one Dhanna. At about 5.00 P.M. he saw Bootka coming from the side of Bori and going towards village Bhata ka Padi. He also noticed that the Dhoti and Bandi of the accused were stained with blood. At about 5.00 P.M. he saw Bootka coming from the side of Bori and going towards village Bhata ka Padi. He also noticed that the Dhoti and Bandi of the accused were stained with blood. At the time when Galji saw the accused, one Deva Patel, PW 1 was also with him and Galji told Deva that if the man had committed any crime in his village, he (Deva) will have to hand him over to them. Shortly afterwards, Gujera, Poma and other persons of village Bori came there and told him that Prabhuda had been murdered. The Dhoti and Bandi of the accused were seized by Investigating Officer Gopal Singh PW 10 vide memo Ex. P. 6. Dhoti and Bandi were Sent for chemical examination. Recording to the report of the Chemical Examiner, the Dhoti and Bandi were stained with blood and according to the report of the Serologist Ex. P. 11 the blood was found to be human blood. The accused has in his explanation totally denied the incident. Dr. Bhoor Singh PW 7 who examined the accused on 4-11-1974 found 3 abrasions. The accused in his explanation admitted that his clothes were blood stained and there were injuries on his person but according to him he had gone to the forest where he received the injuries by some thorns and the blood found on the clothes was his own blood. The learned Additional Sessions Judge did not believe the aforesaid explanation of the accused because the injuries were only abrasions and from such abrasions there could be only slight coming of blood and not such excessive bleeding which could stain not only the Bandi but also the Dhoti. We find no mistake in such inference drawn by learned Additional Sessions Judge. There is direct testimony of PW I Gujara and PW 2 Poma to the effect that the accused had inflicted a blow on the chest of the deceased Prabhuda on account of which he died on the spot. Learned Amicus Curiae was unable to point out any infirmity in the statement of these two witnesses. There is nothing in the cross examination to show that these witnesses were in any manner inimical or had any axe to grind against the accused appellant. Learned Amicus Curiae was unable to point out any infirmity in the statement of these two witnesses. There is nothing in the cross examination to show that these witnesses were in any manner inimical or had any axe to grind against the accused appellant. In our opinion the statement of these two witnesses, who are independent and have given a clear and straight forward statement that the accused inflicted a blow on the chest of deceased Prabhuda, we have no reason to disbelieve these witnesses. It is contended by the learned Amicus Curiae that the accused was going on mare and it was not possible for the prosecution witnesses to chase him. It is also argued that the accused had ample opportunity to make good his escape by running on the mare and the entire story of the prosecution is concocted. It is also submitted that even if the prosecution case that the accused inflicted a knife blow on the chest of the deceased is believed, it was done by the accused in exercise of his right of private defence inasmuch as the prosecuting witnesses had no right to take away the mare from him. In these circumstances it is submitted that the accused should not be held guilty of an offence under section 302 I.P.C. but his case should be considered as merely exceeding the right of private defence. We find no force in this contention of the learned Amicus Curiae. The accused had taken the mare by force from Chhagania and we have already found that the accused was guilty of the charges under section 392 I.P.C. It is not the case of the accused that the mare belonged to him and in these circumstances when he had forcibly taken the mare from Chhagania and if Prabhuda, Chhagnia and other villagers had come in pursuit of the accused in order to take the mare back, there does not arise any question of right of private defence in favour of the accused and he had no right or justification for inflicting a knife blow on the chest of Prabhuda. It has already come in the evidence of Chhagania PW 5 that the mare was an old and weak one and so not able to run fast. It has already come in the evidence of Chhagania PW 5 that the mare was an old and weak one and so not able to run fast. In these circumstances it is quite possible that the accused was not able to make good his escape and Prabhuda and other persons could catch hold of him. The knife, shoes, shirt and mare were left by the accused on the spot which were also taken into custody. Thus, there is overwhelming direct evidence supported by other circumstances against the accused to hold him guilty for the charge under section 302 I.P.C. 5. In the result we find no force in this appeal and the same is dismissed.Appeal Dismissed. *******