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8. Feeling aggrieved, the appellant and his father preferred Criminal Appeal No.1034 of 2001. During the pendency of the appeal, the father of the appellant, i.e., Sabbir expired and, therefore, the case of the appellant alone was considered by the Division Bench of the High Court of Uttaranchal at Nainital. The High Court found that there was no enmity between the parties nor there was premeditation between the appellant and his father for committing the crime. According to the High Court, the quarrel took place suddenly under the heat of passion because the time between the quarrel and the fight was stated to be few minutes. The High Court was of the view that the quarrel had taken place on account of sudden provocation in which the appellant had caused injuries to the deceased with knife and, therefore, the appellant had committed the offence of culpable homicide not amounting to murder punishable under Section 304, Part I of the IPC. The appellant was accordingly convicted and was sentenced to undergo R.I. for ten years and a fine of Rs.5,000/- in default R.I. for one year. The High Court was further of the view that the injuries on the person of Rahmat indicated that Rahmat had tried to apprehend the appellant when the appellant was trying to make his escape good from the place of occurrence and, therefore, it was natural for the appellant to inflict injuries on the person of Rahmat in order to make his escape good. The High Court, therefore, concluded that the appellant had, in fact, no intention to make an attempt to commit murder of Rahmat and had committed offence punishable under Section 308 IPC. Accordingly, the High Court convicted the appellant under Section 308 IPC and sentenced him to R.I. for two years and a fine of Rs.1,000/- in default R.I. for three months by judgment dated December 24, 2004. The above judgment has given rise to the two appeals.

12. The learned counsel for the appellant in Criminal Appeal No.757 of 2005 argued that the accused Sabbir had received two injuries whereas the appellant had sustained one injury and, therefore, injuries having been caused to the deceased in exercise of right of self-defence, the conviction of the appellant under Section 304, Part-I for the death of the deceased and under Section 308 IPC for causing injuries to Rahmat should be set aside. On the other hand, the learned Additional Public Prosecutor vehemently argued that the Trial Court had given cogent and convincing reasons for the purpose of coming to the conclusion that the appellant is guilty under Section 302 IPC for causing murder of the deceased Wilayat and under Section 307 for attempting to commit murder of injured Rahmat and the High Court was not justified in coming to the conclusion that the appellant had committed offence punishable under Section 304, Part I IPC as far as murder of the deceased was concerned and offence punishable under Section 308 IPC for causing injuries to injured Rahmat.

15. A fair reading of the testimony of the medical officer makes it abundantly clear that the accused Sabbir had sustained two superficial injuries when he had hit the palm tree whereas the injury sustained by the appellant was self- inflicted one. The evidence on record does not indicate that any assault was mounted either on the appellant or his father by the deceased or injured Rahmat. On the contrary, the evidence shows that the appellant and his father had gone to the place where deceased was digging earth and accused Sabbir had picked up quarrel with him. On the facts and in the circumstances of the case, this Court finds that plea of self-defence is not made out by the appellant and, therefore, contention that the finding recorded by the High Court that he is guilty under Section 304, Part-I IPC for causing death of the deceased and under Section 308 IPC for causing injuries to Rahmat should be sustained cannot be accepted.

What is relevant to notice is that the doctor had conducted operation of injured Rahmat with regard to injury No.1 and, for that purpose, the injured was admitted in the hospital. The assertion made by the doctor that injury Nos. 1 and 2 sustained by the injured were grievous in nature has gone unchallenged and was never disputed by the defence. Causing an incised wound 10 cm x 7 cm x bone deep with fracture of left side rib with surgical empty semi with tear of pleura on the left side chest, and another incised wound 6 cm x 4 cm bone deep with fracture of under lying bone on left side of back just at the iliac crest, cannot be regarded as bringing the case of the appellant within the purview of Section 308 IPC. There is no manner of doubt that the injuries were caused to injured Rahman with a view to committing his murder. The finding recorded by the High Court that the appellant had caused injuries to Rahmat in an attempt to escape, is not borne out from the record of the case at all. Even no suggestion was made to any of the eye-witnesses that the appellant had caused injuries to injured Rahmat while making attempt to make his escape good. On the contrary, reliable evidence of Rahmat satisfactorily proves that the appellant had caused injuries to this witness when the witness had made attempt to save his brother. The findings recorded by the High Court are not only not borne out from the record of the case but are contrary to the positive evidence on record. Therefore, this Court is of the firm opinion that the appellant could not have been convicted under Section 308 for causing injuries to injured Rahmat and is liable to be convicted under Section 307 IPC.