SUBODH TEWARI Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is an appeal against the conviction of the accused under Sec.302 read with Sec.34, Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for life by the Sessions Judge, Cachar and Karimganj at Silchar.

(2.) The prosecution case is that on 4-2-82 in the morning the deceased Basudeo Verma and his brother P.W.3, Guru Prasad Sonar went to their Sugar Cane cultivation and worked up to 2.30/3.00 p.m. The deceased had a cycle but P.W.3, Guru travelled a foot. Work over the deceased commenced his homeward journey on bicycle and P.W.3, Guru Prasad started walking. The witness fell back. On hearing an out-cry, he hastened his strides and saw Subodh Tewari and Arun Balmiki, appellants 1 and 2 respectively assaulting his brother. The witness tried to break in but Arun chased him with a dao. He ran for his life, took refuge on a hillock and noticed the appellants and others going away from the place of occurrence. He lodged an ejahar. The police seized the bicycle of the deceased and his belongings which comprised two daos, "two pieces of lathi" and a lathi made of "Chao tree". The witness deposed that they had land disputes with Subodh. The witness conceded that the accused persons instituted a cross case against his deceased brother in respect of the occurrence. After the investigation the police submitted a charge-sheet u/Ss. 147, 148, 149/302 I.P.C. against six accused persons including the present appellants. The prosecution examined 5 (five) witnesses including two doctors and the Investigating Police Officer. The plea of the present appellants was that they had exercised the right of private defence of person. Learned Sessions Judge rejected the plea of the appellants and convicted them u/ss. 302/34 I.P.C. on the testimony of solitary witness, namely, P.W. 3, Guru Prasad Sonar. However, learned Judge acquitted the other accused of all the charges.

(3.) The sole contention of Mr. S. K. Homchoudhury, learned counsel for the appellants is that the appellants had successfully brought home their plea of the right of private defence of persons u/ss. 96, 97 read with Sec. 100 I.P.C. and in support thereof learned counsel has put forward his line of argument.