JUDGMENT 1. - Gurmit Singh appellant has been convicted by the Sessions Judge, Bundi under section 304-I, IPC by his judgment dated June 10, 1981 and sentenced to undergo rigorous imprisonment for 10 years and also to fine of Rs. 2,000/- and he has come in appeal before this Court to challenge his conviction and sentence. 2. The prosecution case is that appellant Gurmit Singh and his brothers held 25 bighas of agricultural land near Banganga, tehsil Bundi. Gurmit Singh appellant intended to start dairy on his agricultural land and he needed a loan for that purpose. He contacted Harcharan Singh (PW/1), who is a private medical practitioner at Bundi, and requested him to assist in the matter. Har Charan Singh contacted the personnel of the Bank of Baroda. He was informed that a scheme was necessary to be furnished and that scheme has to be prepared by a Veterinary Doctor. Ishaq Mohd. (PW/2) was a Government Veterinary Doctor posted at Bundi and he was known to Har Charan Singh. Har Charan Singh met Ishaq Mohd. and told him regarding preparation of a scheme for opening a dairy on the agricultural land of the appellant and his brother. Dr. Ishaq Mohd. told that he will have to inspect the site. Dhan Singh, deceased, was also a Sikh like Har Charan Singh (PW/1) and he was tenant in the house of Har Charan Singh. On July 18, 1980, Har Charan Singh (PW/1) along with Ishaq Mohd (PW/2) and deceased Dhan Singh started from Bundi on motor vehicle and reached the agricultural farm of Gurmit Singh at about 7 p.m. Dr Ishaq Mohd. inspected the site for about 20 minutes. Thereafter they sat together along with Gurmit Singh. They drank liquor and also took their meals at about 8 or 8.30 p.m. Har Charan Singh (PW/1) stated that he and Dr. Isqaq Mohd. started together back to Bundi at 9 p.m. However, Dhan Singh stated that he will remain there. A cot was provided to him by Gurmit Singh. His brothers and he slept there. Har Charan Singh and Dr. Ishaq Mohd. reached their respective houses at Bundi. 3. In the morning of the next day at 8.30 a.m. Gurmit Singh appellant came to the house of Har Charan Singh (PW/1) and called him. Har Charan Singh came out and enquired from the appellant as to whether Dhan Singh had also returned. Har Charan Singh and Dr. Ishaq Mohd. reached their respective houses at Bundi. 3. In the morning of the next day at 8.30 a.m. Gurmit Singh appellant came to the house of Har Charan Singh (PW/1) and called him. Har Charan Singh came out and enquired from the appellant as to whether Dhan Singh had also returned. Gurmit Singh appellant thereupon told that during the night Dhan Singh played a drama inasmuch as he made indecent overtures and behaviour with his wife. Har Charan Singh enquired from him if they had beaten Dhan Singh and the appellant informed that two or four lathi injuries had been inflicted on the body of Dhan Singh. Then Har Charan Singh along with the appellant reached the agricultural farm near Banganga on a motor cycle. Har Charan Singh saw that Dhan Singh was lying unconscious there. Joga and Surjit Singh, who are brothers of the appellant, were also there. Har Charan Singh made Dhan Singh to drink some water and some milk. He told the appellant that Dhan Singh may be shifted to the General Hospital, Bundi. The appellant under took to make arrangements for a cart. Har Charan Singn returned to Bundi and went to the office of Fisheries Department where Dhan Singh was employed. He contacted Mr. Yadav, a clerk in the Fisheries Department and narrated to him about the incident. Har Charan Singh then went to his house. At about 11 a.m. he went to Ishaq Mohd. and there he was informed by Madan Driver that Dhan Singh had been shifted to the hospital. 4. It may, then, be mentioned that a telephonic communication was received at City Kotwali at about 11.30 a.m. from Chandra Prakash compounder stating that Dhan Singh Inspector, Fisheries Department had been injured seriously in an accident and was under treatment in the hospital. This information was entered into the roznamcha by the police officials and the entry in the roznamcha is Ex. P/6. Har Charan Singh then went to the hospital. Radhey Shyam Head Constable, Police Station, Kotwali, Bundi was at the Bundi Hospital and Har Charan Singh (PW/1) gave a First Information Report (Ex. P11) in writing to Radhey Shyam at the hospital. Radhey Shyam handed over the report Ex. P/1 to Bajrang Lal, Asstt. Sub-Inspector of Police. 5. Injuries sustained by Dhan Singh were examined by Dr. Radhey Shyam Head Constable, Police Station, Kotwali, Bundi was at the Bundi Hospital and Har Charan Singh (PW/1) gave a First Information Report (Ex. P11) in writing to Radhey Shyam at the hospital. Radhey Shyam handed over the report Ex. P/1 to Bajrang Lal, Asstt. Sub-Inspector of Police. 5. Injuries sustained by Dhan Singh were examined by Dr. J.L. Pungalia (PW/7) and he gave the injury report Ex. P/12, which shows that Dhan Singh sustained 41 injuries. Dhan Singh was unconscious. Radhey Shyam had made an application to the Medical Officer to report whether Dhan Singh was in a position to give statement. The Medical Officer gave report that the patient was unconscious at that time and was not in a position to give statement. Dhan Singh succumbed to his injuries on July 24, 1980 at 6.45 p.m. A case under Section 302, IPC was accordingly registered by the police. Aswani Kumar (PW/12) who was Station House Officer of the Police Station investigated the case. He went to the place of the incident and prepared the site-plan Ex. P/2. He seized the blood-smeared soil and control soil from the place of occurrence vide seizure memo Ex. P/3. The same was sealed. The shirt of Dhan Singh was also taken in police custody. The appellant and other co-accused were arrested on July 20, 1980. It is the prosecution case that the appellant while in custody gave information Ex. P/9 to Aswani Kumar that he can get recover the stick and Chaddar (like lungi) which the appellant was wearing from his house. In pursuance of this information. Aswani Kumar recovered a stick from the chhappar of the appellant and also a chaddar (like lungi) which was stained with blood and had been tried to be washed from petrol and which had the stains of blood, from the house of the appellant from a wooden almirah lying in a corner of the house and he seized the same vide seizure memos Ex. P/10 and Ex. P/11. Bush-shirt of the injured, lungi recovered from the house of the appellant, blood-smeared soil and control soil were sent to the State Forensic Science Laboratory by the police for chemical examination. As blood was detected on bush-shirt, lungi and blood-smeared soil, the same were forwarded to the Serologist and Chemical Examiner for his report. The report of the Serologist and Chemical Examiner is Ex. P/23. As blood was detected on bush-shirt, lungi and blood-smeared soil, the same were forwarded to the Serologist and Chemical Examiner for his report. The report of the Serologist and Chemical Examiner is Ex. P/23. He has opined that all the articles were stained with human blood. As to the blood stains on lungi, it was mentioned that the same were disintegrated and their origin cannot be detected. However, the blood on the soil was Group blood. 6. The police after necessary investigation filed a charge-sheet against the appellant, Surjit Singh, Sheoji Lal and Joga Singh under Section 302. IPC. The case was tried by the Sessions Judge, Bundi. After trial, Sessions Judge found that the case against Surjit Singh, Sheoji Lal and Joga Singh was not established by the prosecution and the three persons were acquitted. However, appellant Gurmit Singh was found guilty for the offence under Section 304 IPC and was sentenced as aforesaid. The appellant has come in appeal to this Court. 7. It is not in dispute that the prosecution case rests on circumstantial evidence. The Sessions Judge, Bundi has found the following seven pieces of circumstantial evidence as fully proved and according to him, they unmistakably prove the guilt of the accused. These circumstances are : 1. Har Charan Singh (PW/1), Ishaq Mohd (PW/2) along with Dhan Singh, deceased. had gone to the farm of the appellant on July, 18, 1980, while Har Charan Singh and Ishaq Mohd. had returned from the field of the appellant, the deceased, Dhan Singh, remained there during the night. 2. Kamaruddin (PW/3) had seen Dhan Singh lying at the field of the appellant and the appellant had told to Kamaruddin that Dhan Singh had been beaten by them. 3. On the morning of the next day, the appellant came to the house of Har Charan Singh (PW/1) and told to the latter that during the night Dhan Singh had made indecent behaviour toward his wife and since he did not desist, Dhan Singh was beaten by the appellant and his brothers. 4. When Har Charan Singh went along with the the appellant to the farm of the latter in the morning he found Dhan Singh lying unconscious on the field of the appellant near some tata. 5. There were blood-stains on the earth at a distance of about 15' from the place where Dhan Singh was lying. 4. When Har Charan Singh went along with the the appellant to the farm of the latter in the morning he found Dhan Singh lying unconscious on the field of the appellant near some tata. 5. There were blood-stains on the earth at a distance of about 15' from the place where Dhan Singh was lying. The blood smeared soil contained human-blood. 6. Chaddar (tehmat) was recovered in pursuance of the information and at the instance of the appellant from an almirah in his house and the same was also found to be stained with human blood. The stains were tried to be washed off by diesel. There was no explanation from the side of the appellant as to how blood-stains were there on his tehmat. 7. The appellant had made voluntary extra-judicial confession of the crime before Har Charan Singh (PW/1) and Kamarudin (PW/3). 8. According to the Sessions Judge, these circumstances when conclusive proved and were incapable of any explanation or hypothesis inconsistent with the guilt of the accused. 9. Shri Biri Singh learned counsel for the appellant, contended that the prosecution evidence regarding the various circumstances believed to be against the appellant, are not reliable and the circumstances are not proved beyond doubt. As regards Har Charan Singh (PW/1), it was urged that although he had been informed about beating given to Dhan Singh on the very next day at about 8.30 a.m. and Har Charan Singh had himself gone to the field of the appellant and seen Dhan Singh lying injured and unconscious, but he did not lodge any report to the police immediately and he lodged it only at 2.30 p.m. when the Head Constable had already reached the hospital. It is urged that the conduct of Har Charan Singh was very unusual inasmuch as he simply returned to Bundi after telling Gurmit Singh to shift Dhan Singh to the hospital. Thereafter he contacted the employee of the Fisheries Department and informed them about the incident and then went away to his house. He only went to the hospital after he had learnt from Madan Driver that Dhan Singh had been shifted to the hospital. It was urged that such a conduct on behalf of Har Charan Singh (PW/l) in relation to Dhan Singh, who was a tenant in his house, was very unusual. He only went to the hospital after he had learnt from Madan Driver that Dhan Singh had been shifted to the hospital. It was urged that such a conduct on behalf of Har Charan Singh (PW/l) in relation to Dhan Singh, who was a tenant in his house, was very unusual. Then it was pointed out that it has come in the evidence of Ishaq Mohd. (PW/2), in cross-examination, that Ishaq Mohd. told Har Charan Singh that there was a talk in the town of Bundi that Har Charan Singh had gone again to the fields of the appellant after leaving Dr. Ishaq Mohd. in Bundi and Har Charan Singh gave no reply to it. It has also come in the evidence that Har Charan Singh remained absent from Bundi for about three months after the incident. The learned counsel further contended that it cannot be said that the deceased was seen last in the company of the appellant alone because it was the prosecution case that the other co-accused named Surjitsingh, Jogasingh and Shivji were also there. As to the testimony of Kamaruddin, it is stated that he has deposed that he had seen two motor-cycles standing near the field of the appellant and the two persons from Bundi were there. The learned counsel further pointed out that Chandra Prakash compounder had intimated to the police that Dhansingh, an inspector in the Fisheries Department, had been injured due to accident and was under treatment in the hospital. Then, it was contended that the prosecution evidence has not been relied in relation to other co-accused persons who have been acquitted on account of the contradictions in their statements in the Court and their police statement. On this basis, it was urged that one infirm witness cannot corroborate the other. As the alleged extra-judicial confession, it was urged that it was highly unnatural and should not have been accepted. With regard to Chaddar (lungi) recovered at the instance of the appellant, it was urged that the blood group could not be pointed out by the Serologist because the blood-stains had disintegrated. On the basis of the above contention, it was urged by the learned counsel for the appellant that the prosecution has failed to prove the various circumstances on which it seeks to rely and, in any event, the circumstances do not lead only to the guilt of the appellant. 10. On the basis of the above contention, it was urged by the learned counsel for the appellant that the prosecution has failed to prove the various circumstances on which it seeks to rely and, in any event, the circumstances do not lead only to the guilt of the appellant. 10. I have given my due consideration to the various arguments advanced by the learned counsel for the appellant. We have to judge the case having regard to the back ground in which the incident took place. Gurmitsingh appellant held 25 bighas of agricultural land near Banganga in Bundi tehsil. He intended to open a diary there and for that purpose he needed loan from the Baroda Bank. The appellant had good relations with Harcharan Singh (PW 1) and sought his assistance in getting this loan. Harcharan Singh is a private medical practitioner at Bundi. He contacted the Baroda Bank personnel and he was informed that a scheme was needed for that purpose. Harcharan Singh had also good relations with the Veterinary Doctor Ishaq Mohd. (PW/2) who had to prepare a scheme for the appellant. Dr. Ishaq Mohd. was so close to Har Charan Singh that, although, on July 18, 1980, he has other engagement as he had invited Dr. Sharma to a diner at his residence, yet, on being asked by Har Charan Singh he cancelled that dinner, and proceeded to Bundi with Har Charan Singh. Dhan Singh was a tenant in the house of Har Charan Singh. It is very clear that both Har Charan Singh and Dhan Singh used to take drinks. Since Har Charan Singh was obliging the appellant by providing him assistance of the Veterinary Doctor Ishaq Mohd. for preparing a scheme, not only a dinner which arranged by the appellant for these persons, but drinks were also provided. This is the modern way of taking assistance and, it was taken in that manner. Dr. Ishaq Mohd. no doubt, returned to Bundi and Har Charan brought him. It might be that the temptation for the drunk was so much that Har Charan Singh went again to the field of the appellant. When peoples addicted to drinks are intoxicated, they are bound to re-act under intoxication. Dhan Singh, therefore, played the so-called drama and that with the wife of the appellant. It might be that the temptation for the drunk was so much that Har Charan Singh went again to the field of the appellant. When peoples addicted to drinks are intoxicated, they are bound to re-act under intoxication. Dhan Singh, therefore, played the so-called drama and that with the wife of the appellant. Probably Dhan Singh thought that this is also an offer in lieu of their assistance of ensuring a loan for opening a dairy. The appellant could not tolerate the repeated attempts of Dhan Singh towards his wife. In this back ground the incident took place and the only assailant could be the appellant because both Har Charan Singh and Dhan Singh wanted to derive their pleasure under intoxication, but the only person who could be against it could the appellant. It is beyond apprehension that Har Charan Singh would have inflicted these injuries because Dhan Singh was his own tenant and under that friendship he was taken to the field of the appellant to drink and misbehave. The conduct of Har Charan Singh in not lodging a report is very well explained by this circumstance. Har Charan Singh was involved in drinking and taking his tenant Dhan Singh to the field of the appellant with liberty under intoxication to make overture towards the wife of the appellant. The allurement was to this extent that Dr. Ishaq Mohd. states that he and Dhan Singh started together to Bundi because Dhan Singh had to go to Jaipur. But Dhan Singh was not ready to return and replied that it was not raining, or, in other words, 'teams were not going to fall." Har Charan Singh being a party to secure assistance in this manner he was bound to be afraid that he may also be involved in the case, because, it was he who had taken both Dhan Singh and [shag Mohd. That sufficiently explains why War Charan Singh did not play active part in bringing Dhan Singh from the field of the appellant from the hospital and in lodging report. 11. The theory regarding the accused appears to he the brain-child of the appellant. Kamaruddin (PW/3) is an independent and disinterested witness. His field is near the field of the appellant. Kamaruddin has stated that the appellant had told him that Dhan Singh had taken too much wine and had made overtures towards the wife of the appellant. 11. The theory regarding the accused appears to he the brain-child of the appellant. Kamaruddin (PW/3) is an independent and disinterested witness. His field is near the field of the appellant. Kamaruddin has stated that the appellant had told him that Dhan Singh had taken too much wine and had made overtures towards the wife of the appellant. He further stated that when ne brought bullock-cart to bring Dhan Singh to Bundi hospital, the appellant had told him that in case any body asks about the injured, he may tell that there was an accident. Thus, at best, it can be said that Har Charan Singh might have also returned to the field of the appellant after leaving Ishaq Mohd. to Bundi. But, as already stated, there was no reason what so over for Har Charan Singh to inflict these injuries to his friend Dhan Singh he was not going to do anything against Har Charan Singh. What Dhan Singh did was that he misbehaved with the wife of the appellant and he even rushed towards his wife. That did enrage the appellant and it was the appellant alone, who inflicted these injuries on the body of Dhan Singh hold the circumstance to be wall proved in the case. 12. So far as the extra-judicial confession is concerned, it is a weak type of evidence and in the instant case, it is shaky as well and, therefore, I do not place any reliance on the alleged extra-judicial confession by the appellant before Har Charan Singh or before Kamaruddin. 13. However, there is one more important piece of circumstantial evidence against the appellant. The incident took place during the night intervening July 18 and 19, 1980 and the appellant was arrested on July 20, 1980. The appellant, while in custody gave an information Ex. P/19 to the investigating officer regarding the stick and chaddar (like lungi). In pursuance of that information he got recovered both these articles. Chaddar (lunginuma) was recovered from a wooden Almirah in the corner of the house of the appellant. The Investigating officer found that it had stains of blood and marked them as A/2, B/2 and C/2. He also stated t hat attempt had been made to wash out these stains by diesel. Then there was also seizure of blood-smeared soil from the place of the occurrence. The Investigating officer found that it had stains of blood and marked them as A/2, B/2 and C/2. He also stated t hat attempt had been made to wash out these stains by diesel. Then there was also seizure of blood-smeared soil from the place of the occurrence. Both these articles were sent for chemical examination and the Serologist reported that the lungi and the blood-stained soil were stained with human blood. The blood group of the blood-smeared soil could be determined as group blood, but the blood-group of lungi could not be determined as the stains of blood had disintegrated. The seizure of the blood-smeared soil from the field of the appellant indicates that the incident took place on the field of the appellant and was not the result of an accident. The appellant could net explain as to how humau-blood stains were on lungi, which belonged to him and was recovered from his house on his information. These recoveries and the human blood stains on them clinchingly connect the appellant with the crime. 14. It may also be mentioned that the appellant in his examination under section 313, Cr.PC has admitted that Har Charan Singh, Ishaq Mohd. and the deceased had gone to his field. He only mentioned that there had been an accident of motor cycle near Doongri. The theory of accident is hard to be believed and so many injuries, as sustained by Dhan Singh, could not be the result of an accident. Dr. B.B.L. Goswami (PW/11) did not agree to this suggestion that injuries No.1 and 2 of Ex.P/15 could be caused simultaneously by a fall. 15. The learned counsel for the appellant has strongly placed reliance on a decision of their Lordships of the Supreme Court in Surender Singh v. State of Punjab, 1989 II SVLR (CR) 12. I have gone through the facts of that case. It may be stated that in Surender Singh's case (Supra) there were several factors which cast serious doubt about the truth fulness of the prosecution case. Firstly, there was an improbability that when there was a quarrel between the appellant and Manjit Singh at about 9 or 10 p.m. on May 8, 1975, it was a drunken brawl, if the appellant would have come to attack Manjit Singh some hours later to settle scores with him. Firstly, there was an improbability that when there was a quarrel between the appellant and Manjit Singh at about 9 or 10 p.m. on May 8, 1975, it was a drunken brawl, if the appellant would have come to attack Manjit Singh some hours later to settle scores with him. The medical evidence regarding the time of death also rendered the prosecution case doubtful. The nature of injuries caused to Manjit Singh also casts doubt about the veracity of the prosecution witnesses. It was held to be highly improbable that accused Surendra Singh would have brought two kinds of weapons i.e. knife and iron rod, to attack Manjit Singh. The alleged attack was made in the early hours at about 3 or 4 a.m. and at a time when the deceased was sleeping only about 9-10 yard where PW/2 was sleeping and the appellant had required the services of PW/2 to find out whether Manjit Singh was sleeping. It was considered improbable that the appellant would have obliterated the attack in the presence of PW/2 coupled with the circumstance that PW/2 could not immediately lodge the report In the instant case, the incident occurred when in a drunked state, the deceased made overtures towards the wife of the appellant and also rushed behind her and, in such a situation the presence of Har Charan Singh could not have dissuaded the appellant from causing injuries to Dhan Singh. There was reason for Har Charan Singh not to straightaway go to the Police Station because he was, in a sense, acting as a dishonest broker to get a scheme of milk dairy for the appellant through Dr. Ishaq Mohd. 16. No doubt, in such a situation the appellant had a right of private defence against the person of his wife. The drunken Dhan Singh could otherwise have been prevented by the appellant with the assistance of his brother from progressing further in his passionate designs. The injuries inflicted by the appellant on the persons of Dhan Singh were far in excess than the force necessary to be used to defend the person of his wife. The appellant clearly exceeded the right of private defence. He was rightly held guilty for the offence under section 304-I. IPC. As to the sentence awarded to him, I am of the opinion that five years' rigorous imprisonment would be sufficient in the circumstances of the case. The appellant clearly exceeded the right of private defence. He was rightly held guilty for the offence under section 304-I. IPC. As to the sentence awarded to him, I am of the opinion that five years' rigorous imprisonment would be sufficient in the circumstances of the case. I, therefore, maintain the conviction of the appellant under section 304-I, IPC. reduce the sentence awarded to the appellant from 10 years to 5 years. The fine awarded to him will remain intact and so also the imprisonment awarded in default of payment of fine. 17. I do not find any force in this appeal and the same is hereby dismissed. The appellant is on bail. The Sessions Judge, Bundi will take immediate steps to take the appellant in custody by issuing a warrant of arrest and will commit him to the jail to undergo the sentence awarded to him.Appeal partly allowed. *******