RAMESHWAR ALIAS RAMESH Vs. THE STALE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated October 31, 1979, passed by the Sessions Judge, Merta, by which the learned Sessions Judge convicted the appellant Under Section 304 Part II, I.P.C. and awarded sentence of five years' rigorous imprisonment to the accused -appellant.

(2.) THE accused -appellant, alongwith Sumer Singh, Trilok and Muneer, was tried for offence Under Sections 302, 307 and 449, I.P.C. The prosecution case is that on February 27, 1978, at about 3.00 p.m., Atma Ram heard a noise from the side of his brother Ratan Lal's house "MAARE RE MAARE RE" and when he rushed towards the house of Ratan Lal, in the way, accused Rameshwar met him, who was carrying a knife. Rameshwar was followed by accused Maniya, Sumer Singh and Trilok Das. Rameshwar caught -hold of Atma Ram and inflicted a knife injury on his stomach. Several persons collected there and they caught -hold of Rameshwar. Thereafter a case was lodged against these accused persons at the Police Station, Merta Road, and the police, after necessary investigation, presented the challan against the four accused - -persons and the learned Sessions Judge, after trial, acquitted the accused Maneer, Sumer Singh and Trilok of all the charges levelled against them by giving them the benefit of doubt. He, also, acquitted the accused -appellant Rameshwar of the offences Under Sections 302, 307 and 449 I.P.C., but convicted him Under Section 304 Part II I.P.C. and sentenced him to undergo five years' rigorous imprisonment. It is against this judgment, convicting and sentencing the appellant Rameshwar that the present appeal has been filed.

(3.) THE learned Counsel for the appellant does not challenge the conviction of the appellant Rameshwar Under Section 304 Part II, I.P.C, but submits that as the accused and the deceased were the close relatives and the incident took -place at the spur of moment without any pre -meditation and the appellant is not a previous convict and he is repenting over his act, therefore, the appellant may be given the benefit of probation. The learned Public Prosecutor, on the other hand, has submitted that the appellant does not deserve any benefit of probation because he inflicted injury on his uncle and took his life. I have considered the rival submissions made by the counsel for the parties.