Narsing Raysing Rajput Vs. State of Gujarat - Court Judgment

SooperKanoon Citationsooperkanoon.com/742577
SubjectCriminal
CourtGujarat High Court
Decided OnSep-20-1996
Judge K.J. Vaidya and; D.G. Karia, JJ.
Reported in(1997)2GLR1586
AppellantNarsing Raysing Rajput
RespondentState of Gujarat
Cases Referred(Ishwar Singh v. State of U.P.
Excerpt:
- - (2) the prosecution failed to establish satisfactorily, whether the incident has taken place as suggested by the prosecution or in any other manner, having regard to the evidence on record and according to the defence, the genesis of the prosecution case is suppressed and therefore, the appellant is entitled to acquittal.d.g. karia, j.1. narsing raysing rajput, who was the police sub- inspector of gram rakshak dal (g.r.d.) at bhuj, at the relevant time, on his being convicted for the offences under sections 307 and 333 of the indian penal code, has preferred the present appeal. the learned assistant sessions judge, kutchh at bhuj, by his judgment and order under appeal, dated january 17, 1994, held the appellant-p.s.i. guilty for the offence under section 307 of the indian penal code and sentenced him to undergo rigorous imprisonment for eight years and imposed fine of rs. 500/- in default to undergo rigorous imprisonment for one month. the learned assistant sessions judge also found him guilty for the offence under section 333 of the indian penal code and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of rs. 500/-, in default to undergo rigorous imprisonment for one month. the said order of conviction and sentence has been rendered by the learned assistant sessions judge, kutchh at bhuj in sessions case no. 17 of 1989.2. the case of the prosecution, shortly stated, is that p.w. 2, mahmadhussen jusab, who was serving as a driver in motor transport section of g.r.d. at bhuj and the accused - p.s.i, was head of the said unit in the year 1988. on october 24, 1988, a fire practice of the gujarat rakshak dal was arranged at village janan, situated in rapar taluka of kutchh district. the appellant had to go to the said village janan by a jeep being driven by p.w. 2-driver. accordingly, he had gone to the said village janan via khadir. it is alleged that p.w. 2 mahmadhussen jusab, the complainant, had allowed two unauthorised persons in the jeep and had not taken the fire-arms for the purpose of practice of firing. the appellant-p.s.i., therefore, admonished the complainant. it is also the prosecution case that the appellant-p.s.i. had abused the complainant for that. p.w. 2 had, therefore, gone to village khadir with p.w. 5 dudhabhai, one of the constables of g.r.d. for the purpose of taking the fire-arms and cartridges. while returning from village janan, the appellant - p.s.i. got the jeep stopped, as he wanted to ease himself. thereafter the appellant demanded that the jeep be driven by him. p.w. 2 refused to hand over the vehicle to appellant sating that an unauthorised person could not drive the jeep. the appellant thereupon got enraged and fired a bullet from his service-revolver, which hit p.w. 2 on the right becap from which the bullet had entered the shoulder-bone causing fracture. the complainant-p.w. 2, being scared, had then run away. it is also the prosecution case that when the complainant was running away, the appellant had fired second shot from his service-revolver. however, it did not hit him. the appellant took the jeep with the help of one tractor. p.w. 2 - complainant reached village rapar by a truck after midnight at about 0-25 hours. he lodged the complaint against the appellant for the offence under section 307 of the indian penal code. later on, by a report, the offence under section 333 of the indian penal code was added in the original complaint. p.w. 9 dahyabhai jijabhai patel, who was the c.p.i. at bhachau at the relevant time, completed the investigation. thereafter, the charge-sheet for the aforesaid offences under sections 307 and 333 of the indian penal code was submitted.3. charge at exh. 1 in respect on basis of the aforesaid facts and offences was read over to the appellant to which he pleaded not guilty and claimed to be tried.4. the learned assistant session judge, kutchh at bhuj, having recorded the evidence, and on appreciation thereof and other material on record, came to the conclusion that the appellant was guilty for the offences which he was charged and convicted and sentenced him as stated hereinabove.5. mr. m.j. budhbhatti, learned advocate appearing for the appellant-p.s.i., has taken us through the evidence on record and the impugned judgment. he has contended the following points:-(1) that the learned assistant sessions judge had no jurisdiction to try the said sessions case, in view of the provisions of sections 26 and 28 of the code of criminal procedure and further sentence provided for the offence under section 307 of the i.p. code.(2) the prosecution failed to establish satisfactorily, whether the incident has taken place as suggested by the prosecution or in any other manner, having regard to the evidence on record and according to the defence, the genesis of the prosecution case is suppressed and therefore, the appellant is entitled to acquittal.(3) injuries on the person of the appellant have been examined and on the facts of the case the appellant has a right of private defence which he duly exercised and as such the conviction is not justifiable.(4) alternatively, having regard to the facts of the case, the offence that can be said to have been committed by the appellant would be under section 308 and not of section 307 of i.p. code.6. as regards the first submission of mr. budhbhatti that the learned assistant sessions judge was not competent to try the sessions case in respect of offence under section 307 of i.p. code, he has relied upon the provisions of sections 26 and 28 of the code of criminal procedure. in support thereof, mr. budhbhatti also relied upon the case of state of gujarat v. jaysukh @ harsukh hakubhai, reported in 1996(2) glr 33. the main plank of contention with regard to jurisdiction of the court is that the offence under section 307 of the indian penal court provides sentence of imprisonment of either description or term which may extend to ten years and with fine. if hurt is caused to any person by such act, the offender shall be liable either for imprisonment for life or such punishment as is hereinabove mentioned. mr. budhbhatti then submitted that sub-section (3) of section 28 of the code of criminal procedure empowers the assistant sessions judge to impose imprisonment for a term not exceeding ten years. in support of this submission, mr. budhbhatti referred to and relied upon the case of state of gujarat v. jaysukh (supra), wherein a division bench of this court (coram: b.c. patel & m.r. calla, jj.) held that the first schedule to the criminal procedure code indicates that an offence under section 376 of the indian penal code is a non-bailable cognizable offence and is triable only by a court of session and as such the trial of such offence by the assistant sessions judge is without jurisdiction.7. we have considered the submission regarding jurisdiction of the court thoroughly and are unable to agree with it for the following reasons. firstly, the observation made by the division bench in the aforesaid case of state of gujarat v. jaysukh (supra) are with regard to the case that was before the bench and that question was not finally decided. what is observed by the division bench is as under:mr. upadhyaya, learned advocate, realising that if the matter is remanded for retrial, the accused may be required to undergo greater sentence; does not press the appeal. we have not discussed the issue, as the same is not challenged by the learned advocate.thus, the appeal before the division bench having been withdrawn, the court did not discuss the issue. there is, therefore, no finding as to whether the court of the assistant judge is or is not competent to try such criminal case. the decision is, therefore, of no assistance to the appellant.8. section 9 of the code of criminal procedure provides that the state government shall establish a court of session for every sessions division. sub-section (2) of section 9 further provides that every court of session shall be presided over by a judge, to be appointed by the high court. sub-section (3) of section 9 provides that the high court may also appoint additional sessions judges and assistant sessions judges to exercise jurisdiction in a court of session. thus, it is clear that the assistant sessions judge, while dealing with the sessions case, has been exercising the jurisdiction as the court of session. in this connection, section 194 of the code of criminal procedure may be referred to. section 194 provides that an additional sessions judge or assistant sessions judge shall try such cases as the sessions judge of the division may, by general or special order, make over to him for trial or as the high court may, by special order, direct him to try. it is true that section 28 of the code provides that an assistant sessions judge may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years. in the instant case, the learned assistant sessions judge has sentenced the appellant to undergo rigorous imprisonment for eight years. it is not the sentence exceeding ten years. thus, on conjoint reading of the provisions of sections 9,26,28 and 194 of the code of criminal procedure, it cannot be interpreted that the assistant sessions judge trying the sessions case for the offence under section 307 of the indian penal code had no jurisdiction to try the said sessions case.9. there is also other facet of the point. the offence under section 409 of the indian penal code in respect of criminal breach of trust by public servant, by banker, merchant or agent, provides imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. such offence is cognizable, non-bailable offence triable by the magistrate of first class. it, therefore, does not stand to reason that the assistant sessions judge, being superior and higher in category to that of the magistrate cannot have jurisdiction to try the sessions case for the offence punishable under section 307 of the indian penal code. apart that, in our view, on interpretation of sections 9, 26, 28 and 194 of the code of criminal procedure, the assistant sessions judge has power and jurisdiction to try the sessions case for the offence under section 307 of the indian penal code. it may be mentioned that this point is raised for the first time at the hearing of this appeal. if it was raised in the trial court, the authority of the learned assistant sessions judge with regard to jurisdiction to try such cases could have been brought on record by the prosecution. we, therefore, see no substance in the submission of mr. budhbhatti that the learned assistant sessions judge has no power and jurisdiction to try the sessions case and that the trial was without jurisdiction. the contention is thus devoid of merit and is rejected.10. that takes us to the other submission of mr. budhbhatti that the incident did not take place as per the prosecution case and as such the appellant - p.s.i. is entitled to acquittal. in submission of mr. budhbhatti, the appellant - p.s.i. was justified in firing bullet in his private defence. having meticulously gone through the relevant evidence on record, we do not find any merit in the submission. it is not in dispute that the appellant - p.s.i. fired the bullet from his service-revolver and caused injury to p.w. 2, mahmadhussen jusab. the injury sustained by p.w. 2 is duly established by the evidence of p.w. 2 at exh. 37 and the complaint at exh. 38 and the evidence of p.w. 1 dr. devkumar ghanshyamdas. we do not discuss the injury sustained by p.w. 2, as it is admitted by the appellant. what he has (sic.) stated by the appellant in his statement under section 313 of the code of criminal procedure is that the incident had taken place in his self-defence. according to the appellant, p.w. 2, mahmadhussen jusab, assaulted the appellant with iron rod and the appellant felt that he would cause grievous hurt to him and therefore, he had to fire the bullet from his service-revolver, which caused injury to p.w. 2. it is the case of the appellant that to warn p.w. 2, he had fired one, bullet in air and yet as the p.w. 2 did not resist from assaulting him with iron-bar; so he had to fire the second bullet in his self-defence. the appellant had admonished the complainant that he had forgotten to bring the fire-arms and since he had taken out the cartridges from his revolver and as such p.w. 2 tried to attack him with iron rod, and to avert physical injury, the appellant had no alternative but to fire his service-revolver in his self-defence. thus, there is no denial by the appellant about an incident having taken place wherein he had fired the bullet on the complainant. it is also clear from the evidence of p.w. 1 dr. devkumar at exh. 33 that he had examined the p.w. 2 in the wee hours on october 25, 1988, when the p.w. 2 had come with police yadi. p.w. 1, devkumar found the bullet injury on the right arm of p.w. 2. it was bleeding and the wound was blackened. the complainant was in drunken condition. after preliminary treatment, he was sent to p.w. 7 dr. kamlesh dayaram vegad in civil hospital, bhuj, where bullet was taken out from the right arm of the victim. the x-ray plate is at exh. 49. there was fracture in scapula portion of p.w. 2. the p.w. 2 complainant was treated as indoor patient from october 25, 1988 to november 16, 1988.11. according to defence of the appellant, the p.w. 2 - complainant had first given a fist blow on his eye, followed by assault by iron rod. the appellant has also produced the medical certificate at exh. 50 in regard to the injury sustained by him. the said medical certificate exh. 50 indicates that the appellant had red-coloured contusion 3 cm x 1/2 cm just below the right eye. it further indicates that there were red-coloured contusions on the thigh part of the appellant. it appears that the appellant was examined on 27-10-1988 by the medical officer at bhachau. the certificate exh. 50 reads that the appellant was beaten causing injuries by stick ('lathi'). what was reported to the doctor on october 27, 1988 by the appellant in respect of the incident which took place on october 24, 1988 is that the p.w. 2 had assaulted him with stick, as per the medical certificate ex. 50.12. the learned assistant sessions judge has rightly held in para 13 of his judgment that the injuries shown in the above medical certificate exh. 50 cannot be said to be in nature serious injuries. the said injuries are simple injuries. the appellant being p.s.i. would be conscious about firing of bullet from his service-revolver and therefore, in order to raise the plea of private defence, he would have himself inflicted the injuries on his person. it may be mentioned at this stage that the appellant had also filed a criminal complaint against p.w. 2 in respect of all these injuries and for the offences under sections 323, 324 & 504 of the indian penal code. it is stated at the bar that a sessions case in this connection, being sessions case no. 18 of 1989 was also tried by the learned assistant judge, kutch at bhuj wherein the p.w. 2 was acquitted.13. it is settled law that the burden of proof is on the person to show that in exercise of right of self-defence, he had to cause injury to the victim. therefore, in the instant case, mere sustenance of some injuries by the appellant in the occurrence in which p.w. 2 is injured, cannot be conclusive proof by itself, of self-defence, inasmuch as it is not the case of the appellant that the complainant was the aggressor. the burden to prove is on the appellant. we have scanned the evidence and material of the case and on basis thereof we are unable to notice that there was imminent danger of death or grievous hurt to the appellant so as to justify him to fire his revolver in exercise of the right of private defence. it, therefore, follows that simply because the appellant had received some injuries in the incident, it cannot be taken for granted that the victim-complainant was the aggressor and consequently the appellant had to defend himself by inflicting injury on the complainant. in the instant case, having regard to the number and nature of the injuries sustained by the appellant, it cannot be concluded that the appellant was justified in firing the bullet in his self-defence. the learned assistant sessions judge has, therefore, rightly rejected the plea of private defence. we do not find any merit in the submission of mr. budhbhatti that the incident has taken place in the manner other than as stated by the prosecution, which would entitle the appellant-accused to acquittal.14. it is also in evidence that the appellant fired the bullet from close range. in this connection, the cross-examination of p.w. 1, dr. devkumar at exh. 33 was pointed out to the learned counsel for the appellant. dr. devkumar has admitted in his cross-examination that if 38 bore revolver is fired from the distance of two to three feet, the fracture would be possible in such cases. mr. budhbhatti, therefore, conceded that the firing was made from close range. the medical evidence on record also indicates that the wound on the right arm of p.w. 2 - complainant was blackened and tattooed. it, therefore, indicates that the appellant had fired from the close range. if it were so, there is no question of assault by the complainant with stick or iron rod causing any injury on the thigh-part of the appellant. in this view of the matter, the defence of the appellant that the complainant assaulted him with iron bar so as to compel him to open his fire-arm is quite doubtful. it was a distance of about 2 to 3 feet between the appellant and the complainant - p.w. 2 and as such it cannot be a cause of causing any injury with stick or iron bar. in any view of the matter, there cannot be a reasonable apprehension of grievous hurt so as to entitle the appellant to fire his revolver causing fracture to the victim - complainant. the plea of the appellant of right of private defence, in the facts of the case, cannot be accepted. in the facts of the case, the appellant was not suddenly confronted with immediate need of averting an impending danger. the necessity of opening fire must be present, real or apparent. it was not in this case.15. the last contention of mr. budhbhatti is that at the most offence under section 308 of the indian penal code can be said to have been committed. it is his alternative contention that section 308 i.p. code is in regard to offence of attempting to commit culpable homicide. in the facts of the case, and particularly the appellant being p.s.i. must have knowledge about consequences of his firing bullet on the person of the complainant. in the facts of the case, the conviction of the appellant for the offence punishable under section 307 of the indian penal code is justified, having regard to the nature of the injury actually caused to p.w. 2 - complainant. the appellant being p.s.i., is expected to have knowledge that his act of firing bullet would cause death of the victim and as such he has been rightly convicted for the offence of attempt to murder.16. mr. budhbhatti has cited several authorities, air 1989 sc 1459; (laxmi singh v. state of bihar) : 1976crilj1736 ; (ishwar singh v. state of u.p.) : 1976crilj1883 in support of his submission of plea as to right of private defence and non-explanation of injuries sustained by the appellant leading to the inference that the prosecution suppressed the genesis of the actual occurrence. we have gone through all these decisions minutely and carefully. we are of the opinion that having regard to the facts and circumstances of the case, all these decisions are not helpful to the case of the appellant, inasmuch as the learned assistant sessions judge has rightly held that the injuries on the person of the appellant appeared to be self-inflicted injuries; and that the injuries on the appellant are not serious or grave injuries and that there was no case of firing bullet in exercise of right of private defence.17. in the above view of the matter, the appeal fails and is dismissed. bail-bonds of the appellant stand cancelled.18. at this stage, mr. m.j. budhbhatti, learned advocate appearing for the appellant, seeks time for the appellant to surrender and for the purpose of approaching the supreme court. in the facts of the case, time of six weeks is granted.
Judgment:

D.G. Karia, J.

1. Narsing Raysing Rajput, who was the Police Sub- Inspector of Gram Rakshak Dal (G.R.D.) at Bhuj, at the relevant time, on his being convicted for the offences under Sections 307 and 333 of the Indian Penal Code, has preferred the present appeal. The learned Assistant Sessions Judge, Kutchh at Bhuj, by his judgment and order under appeal, dated January 17, 1994, held the appellant-P.S.I. guilty for the offence under Section 307 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for eight years and imposed fine of Rs. 500/- in default to undergo rigorous imprisonment for one month. The learned Assistant Sessions Judge also found him guilty for the offence under Section 333 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for one month. The said order of conviction and sentence has been rendered by the learned Assistant Sessions Judge, Kutchh at Bhuj in Sessions Case No. 17 of 1989.

2. The case of the prosecution, shortly stated, is that P.W. 2, Mahmadhussen Jusab, who was serving as a Driver in Motor Transport Section of G.R.D. at Bhuj and the accused - P.S.I, was head of the said unit in the year 1988. On October 24, 1988, a fire practice of the Gujarat Rakshak Dal was arranged at village Janan, situated in Rapar Taluka of Kutchh District. The appellant had to go to the said village Janan by a jeep being driven by P.W. 2-driver. Accordingly, he had gone to the said village Janan via Khadir. It is alleged that P.W. 2 Mahmadhussen Jusab, the complainant, had allowed two unauthorised persons in the jeep and had not taken the fire-arms for the purpose of practice of firing. The appellant-P.S.I., therefore, admonished the complainant. It is also the prosecution case that the appellant-P.S.I. had abused the complainant for that. P.W. 2 had, therefore, gone to village Khadir with P.W. 5 Dudhabhai, one of the Constables of G.R.D. for the purpose of taking the fire-arms and cartridges. While returning from village Janan, the appellant - P.S.I. got the jeep stopped, as he wanted to ease himself. Thereafter the appellant demanded that the jeep be driven by him. P.W. 2 refused to hand over the vehicle to appellant sating that an unauthorised person could not drive the jeep. The appellant thereupon got enraged and fired a bullet from his service-revolver, which hit P.W. 2 on the right becap from which the bullet had entered the shoulder-bone causing fracture. The complainant-P.W. 2, being scared, had then run away. It is also the prosecution case that when the complainant was running away, the appellant had fired second shot from his service-revolver. However, it did not hit him. The appellant took the jeep with the help of one tractor. P.W. 2 - complainant reached village Rapar by a truck after midnight at about 0-25 hours. He lodged the complaint against the appellant for the offence under Section 307 of the Indian Penal Code. Later on, by a report, the offence under Section 333 of the Indian Penal Code was added in the original complaint. P.W. 9 Dahyabhai Jijabhai Patel, who was the C.P.I. at Bhachau at the relevant time, completed the investigation. Thereafter, the charge-sheet for the aforesaid offences under Sections 307 and 333 of the Indian Penal Code was submitted.

3. Charge at Exh. 1 in respect on basis of the aforesaid facts and offences was read over to the appellant to which he pleaded not guilty and claimed to be tried.

4. The learned Assistant Session Judge, Kutchh at Bhuj, having recorded the evidence, and on appreciation thereof and other material on record, came to the conclusion that the appellant was guilty for the offences which he was charged and convicted and sentenced him as stated hereinabove.

5. Mr. M.J. Budhbhatti, learned Advocate appearing for the appellant-P.S.I., has taken us through the evidence on record and the impugned judgment. He has contended the following points:-

(1) That the learned Assistant Sessions Judge had no jurisdiction to try the said Sessions Case, in view of the provisions of Sections 26 and 28 of the Code of Criminal Procedure and further sentence provided for the offence under Section 307 of the I.P. Code.

(2) The prosecution failed to establish satisfactorily, whether the incident has taken place as suggested by the prosecution or in any other manner, having regard to the evidence on record and according to the defence, the genesis of the prosecution case is suppressed and therefore, the appellant is entitled to acquittal.

(3) Injuries on the person of the appellant have been examined and on the facts of the case the appellant has a right of private defence which he duly exercised and as such the conviction is not justifiable.

(4) Alternatively, having regard to the facts of the case, the offence that can be said to have been committed by the appellant would be under Section 308 and not of Section 307 of I.P. Code.

6. As regards the first submission of Mr. Budhbhatti that the learned Assistant Sessions Judge was not competent to try the Sessions Case in respect of offence under Section 307 of I.P. Code, he has relied upon the provisions of Sections 26 and 28 of the Code of Criminal Procedure. In support thereof, Mr. Budhbhatti also relied upon the case of State of Gujarat v. Jaysukh @ Harsukh Hakubhai, reported in 1996(2) GLR 33. The main plank of contention with regard to jurisdiction of the Court is that the offence under Section 307 of the Indian Penal Court provides sentence of imprisonment of either description or term which may extend to ten years and with fine. If hurt is caused to any person by such act, the offender shall be liable either for imprisonment for life or such punishment as is hereinabove mentioned. Mr. Budhbhatti then submitted that Sub-section (3) of Section 28 of the Code of Criminal Procedure empowers the Assistant Sessions Judge to impose imprisonment for a term not exceeding ten years. In support of this submission, Mr. Budhbhatti referred to and relied upon the case of State of Gujarat v. Jaysukh (supra), wherein a Division Bench of this Court (Coram: B.C. Patel & M.R. Calla, JJ.) held that the First Schedule to the Criminal Procedure Code indicates that an offence under Section 376 of the Indian Penal Code is a non-bailable cognizable offence and is triable only by a Court of Session and as such the trial of such offence by the Assistant Sessions Judge is without jurisdiction.

7. We have considered the submission regarding jurisdiction of the Court thoroughly and are unable to agree with it for the following reasons. Firstly, the observation made by the Division Bench in the aforesaid case of State of Gujarat v. Jaysukh (supra) are with regard to the case that was before the Bench and that question was not finally decided. What is observed by the Division Bench is as under:

Mr. Upadhyaya, learned Advocate, realising that if the matter is remanded for retrial, the accused may be required to undergo greater sentence; does not press the appeal. We have not discussed the issue, as the same is not challenged by the learned Advocate.

Thus, the appeal before the Division Bench having been withdrawn, the Court did not discuss the issue. There is, therefore, no finding as to whether the Court of the Assistant Judge is or is not competent to try such criminal case. The decision is, therefore, of no assistance to the appellant.

8. Section 9 of the Code of Criminal Procedure provides that the State Government shall establish a Court of Session for every Sessions division. Sub-section (2) of Section 9 further provides that every Court of Session shall be presided over by a Judge, to be appointed by the High Court. Sub-section (3) of Section 9 provides that the High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. Thus, it is clear that the Assistant Sessions Judge, while dealing with the Sessions Case, has been exercising the jurisdiction as the Court of Session. In this connection, Section 194 of the Code of Criminal Procedure may be referred to. Section 194 provides that an Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try. It is true that Section 28 of the Code provides that an Assistant Sessions Judge may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years. In the instant case, the learned Assistant Sessions Judge has sentenced the appellant to undergo rigorous imprisonment for eight years. It is not the sentence exceeding ten years. Thus, on conjoint reading of the provisions of Sections 9,26,28 and 194 of the Code of Criminal Procedure, it cannot be interpreted that the Assistant Sessions Judge trying the Sessions Case for the offence under Section 307 of the Indian Penal Code had no jurisdiction to try the said Sessions Case.

9. There is also other facet of the point. The offence under Section 409 of the Indian Penal Code in respect of criminal breach of trust by public servant, by banker, merchant or agent, provides imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Such offence is cognizable, non-bailable offence triable by the Magistrate of First Class. It, therefore, does not stand to reason that the Assistant Sessions Judge, being superior and higher in category to that of the Magistrate cannot have jurisdiction to try the Sessions Case for the offence punishable under Section 307 of the Indian Penal Code. Apart that, in our view, on interpretation of Sections 9, 26, 28 and 194 of the Code of Criminal Procedure, the Assistant Sessions Judge has power and jurisdiction to try the Sessions Case for the offence under Section 307 of the Indian Penal Code. It may be mentioned that this point is raised for the first time at the hearing of this appeal. If it was raised in the trial Court, the authority of the learned Assistant Sessions Judge with regard to jurisdiction to try such cases could have been brought on record by the prosecution. We, therefore, see no substance in the submission of Mr. Budhbhatti that the learned Assistant Sessions Judge has no power and jurisdiction to try the Sessions Case and that the trial was without jurisdiction. The contention is thus devoid of merit and is rejected.

10. That takes us to the other submission of Mr. Budhbhatti that the incident did not take place as per the prosecution case and as such the appellant - P.S.I. is entitled to acquittal. In submission of Mr. Budhbhatti, the appellant - P.S.I. was justified in firing bullet in his private defence. Having meticulously gone through the relevant evidence on record, we do not find any merit in the submission. It is not in dispute that the appellant - P.S.I. fired the bullet from his service-revolver and caused injury to P.W. 2, Mahmadhussen Jusab. The injury sustained by P.W. 2 is duly established by the evidence of P.W. 2 at Exh. 37 and the complaint at Exh. 38 and the evidence of P.W. 1 Dr. Devkumar Ghanshyamdas. We do not discuss the injury sustained by P.W. 2, as it is admitted by the appellant. What he has (sic.) stated by the appellant in his statement under Section 313 of the Code of Criminal Procedure is that the incident had taken place in his self-defence. According to the appellant, P.W. 2, Mahmadhussen Jusab, assaulted the appellant with iron rod and the appellant felt that he would cause grievous hurt to him and therefore, he had to fire the bullet from his service-revolver, which caused injury to P.W. 2. It is the case of the appellant that to warn P.W. 2, he had fired one, bullet in air and yet as the P.W. 2 did not resist from assaulting him with iron-bar; so he had to fire the second bullet in his self-defence. The appellant had admonished the complainant that he had forgotten to bring the fire-arms and since he had taken out the cartridges from his revolver and as such P.W. 2 tried to attack him with iron rod, and to avert physical injury, the appellant had no alternative but to fire his service-revolver in his self-defence. Thus, there is no denial by the appellant about an incident having taken place wherein he had fired the bullet on the complainant. It is also clear from the evidence of P.W. 1 Dr. Devkumar at Exh. 33 that he had examined the P.W. 2 in the wee hours on October 25, 1988, when the P.W. 2 had come with Police Yadi. P.W. 1, Devkumar found the bullet injury on the right arm of P.W. 2. It was bleeding and the wound was blackened. The complainant was in drunken condition. After preliminary treatment, he was sent to P.W. 7 Dr. Kamlesh Dayaram Vegad in Civil Hospital, Bhuj, where bullet was taken out from the right arm of the victim. The X-ray plate is at Exh. 49. There was fracture in scapula portion of P.W. 2. The P.W. 2 complainant was treated as indoor patient from October 25, 1988 to November 16, 1988.

11. According to defence of the appellant, the P.W. 2 - complainant had first given a fist blow on his eye, followed by assault by iron rod. The appellant has also produced the medical certificate at Exh. 50 in regard to the injury sustained by him. The said medical certificate Exh. 50 indicates that the appellant had red-coloured contusion 3 cm x 1/2 cm just below the right eye. It further indicates that there were red-coloured contusions on the thigh part of the appellant. It appears that the appellant was examined on 27-10-1988 by the Medical Officer at Bhachau. The certificate Exh. 50 reads that the appellant was beaten causing injuries by stick ('Lathi'). What was reported to the doctor on October 27, 1988 by the appellant in respect of the incident which took place on October 24, 1988 is that the P.W. 2 had assaulted him with stick, as per the medical certificate Ex. 50.

12. The learned Assistant Sessions Judge has rightly held in para 13 of his judgment that the injuries shown in the above medical certificate Exh. 50 cannot be said to be in nature serious injuries. The said injuries are simple injuries. The appellant being P.S.I. would be conscious about firing of bullet from his service-revolver and therefore, in order to raise the plea of private defence, he would have himself inflicted the injuries on his person. It may be mentioned at this stage that the appellant had also filed a criminal complaint against P.W. 2 in respect of all these injuries and for the offences under Sections 323, 324 & 504 of the Indian Penal Code. It is stated at the Bar that a Sessions Case in this connection, being Sessions Case No. 18 of 1989 was also tried by the learned Assistant Judge, Kutch at Bhuj wherein the P.W. 2 was acquitted.

13. It is settled law that the burden of proof is on the person to show that in exercise of right of self-defence, he had to cause injury to the victim. Therefore, in the instant case, mere sustenance of some injuries by the appellant in the occurrence in which P.W. 2 is injured, cannot be conclusive proof by itself, of self-defence, inasmuch as it is not the case of the appellant that the complainant was the aggressor. The burden to prove is on the appellant. We have scanned the evidence and material of the case and on basis thereof we are unable to notice that there was imminent danger of death or grievous hurt to the appellant so as to justify him to fire his revolver in exercise of the right of private defence. It, therefore, follows that simply because the appellant had received some injuries in the incident, it cannot be taken for granted that the victim-complainant was the aggressor and consequently the appellant had to defend himself by inflicting injury on the complainant. In the instant case, having regard to the number and nature of the injuries sustained by the appellant, it cannot be concluded that the appellant was justified in firing the bullet in his self-defence. The learned Assistant Sessions Judge has, therefore, rightly rejected the plea of private defence. We do not find any merit in the submission of Mr. Budhbhatti that the incident has taken place in the manner other than as stated by the prosecution, which would entitle the appellant-accused to acquittal.

14. It is also in evidence that the appellant fired the bullet from close range. In this connection, the cross-examination of P.W. 1, Dr. Devkumar at Exh. 33 was pointed out to the learned Counsel for the appellant. Dr. Devkumar has admitted in his cross-examination that if 38 bore revolver is fired from the distance of two to three feet, the fracture would be possible in such cases. Mr. Budhbhatti, therefore, conceded that the firing was made from close range. The medical evidence on record also indicates that the wound on the right arm of P.W. 2 - complainant was blackened and tattooed. It, therefore, indicates that the appellant had fired from the close range. If it were so, there is no question of assault by the complainant with stick or iron rod causing any injury on the thigh-part of the appellant. In this view of the matter, the defence of the appellant that the complainant assaulted him with iron bar so as to compel him to open his fire-arm is quite doubtful. It was a distance of about 2 to 3 feet between the appellant and the complainant - P.W. 2 and as such it cannot be a cause of causing any injury with stick or iron bar. In any view of the matter, there cannot be a reasonable apprehension of grievous hurt so as to entitle the appellant to fire his revolver causing fracture to the victim - complainant. The plea of the appellant of right of private defence, in the facts of the case, cannot be accepted. In the facts of the case, the appellant was not suddenly confronted with immediate need of averting an impending danger. The necessity of opening fire must be present, real or apparent. It was not in this case.

15. The last contention of Mr. Budhbhatti is that at the most offence under Section 308 of the Indian Penal Code can be said to have been committed. It is his alternative contention that Section 308 I.P. Code is in regard to offence of attempting to commit culpable homicide. In the facts of the case, and particularly the appellant being P.S.I. must have knowledge about consequences of his firing bullet on the person of the complainant. In the facts of the case, the conviction of the appellant for the offence punishable under Section 307 of the Indian Penal Code is justified, having regard to the nature of the injury actually caused to P.W. 2 - complainant. The appellant being P.S.I., is expected to have knowledge that his act of firing bullet would cause death of the victim and as such he has been rightly convicted for the offence of attempt to murder.

16. Mr. Budhbhatti has cited several authorities, AIR 1989 SC 1459; (Laxmi Singh v. State of Bihar) : 1976CriLJ1736 ; (Ishwar Singh v. State of U.P.) : 1976CriLJ1883 in support of his submission of plea as to right of private defence and non-explanation of injuries sustained by the appellant leading to the inference that the prosecution suppressed the genesis of the actual occurrence. We have gone through all these decisions minutely and carefully. We are of the opinion that having regard to the facts and circumstances of the case, all these decisions are not helpful to the case of the appellant, inasmuch as the learned Assistant Sessions Judge has rightly held that the injuries on the person of the appellant appeared to be self-inflicted injuries; and that the injuries on the appellant are not serious or grave injuries and that there was no case of firing bullet in exercise of right of private defence.

17. In the above view of the matter, the appeal fails and is dismissed. Bail-bonds of the appellant stand cancelled.

18. At this stage, Mr. M.J. Budhbhatti, learned Advocate appearing for the appellant, seeks time for the appellant to surrender and for the purpose of approaching the Supreme Court. In the facts of the case, time of six weeks is granted.