KESHU S/O GAUTAM MEENA Vs. STATE

JUDGEMENT

(1.) The appellants herein have preferred the instant appeal under Section 389 CrPC assailing the judgment dated 18.07.2019 passed by the learned Additional Sessions Judge, Kherwara, District Udaipur in Sessions Case No.17/2016, whereby they have been convicted and sentenced as below :-

(2.) Mr. Deepak Menaria, the learned counsel representing, the appellants, urged that the appellants herein are in custody since March 2012. He urged that even if the prosecution allegations are accepted to be true on the face of the record, apparently, conviction of the appellants herein for the charge under Section 302 IPC cannot be sustained. In this regard, Mr. Menaria drew the court's attention to the following findings recorded by the trial court in the impugned judgment and urged that it was a clear case of free fight between the two parties under the influence of liquor :

(3.) He submitted that after holding that the incident took place as a free fight and that both the parties had lodged cross cases against each other, the learned trial court acquitted the accused of the charge under Section 149 IPC. Mr. Menaria submitted that as per the highest allegation of the prosecution eye-witnesses, the accused Narayan is alleged to have inflicted an iron wire clad lathi blow on the head of the deceased Kishan, whereas the accused Keshu is alleged to have inflicted a blow of a knuckle duster on the head of the deceased. Mr. Menaria submitted that as per the deposition of medical jurist Dr. Sushank Wanawat (P.W.8) and the postmortem report Ex.P/19, two fractures were found existing on the head area of the deceased :