BANSHI LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been filed by the accused appellant Banshilal (now dead) against the judgment and order of conviction and sentence dated 9.5.1988 passed by Additional Sessions Judge No. 2 Ajmer in Sessions Case No. 58/1986 (112/1986) whereby the accused appellant Banshilal was convicted for the offence under Section 304 Part II and sentenced to three years rigorous imprisonment and fine of Rs. 1000/- and in default of payment to further suffer six months additional simple imprisonment. It may be mentioned that the appellant Banshilal died on 17.3.2008 and his wife wants to represent the present appeal and for that she filed an application dated 13.1.2009 for allowing her to represent her husband in the appeal and this court allowed the said application vide order dated 10.2.2009. This court passed the following order:

(2.) Mr. O.S. Lakhawat, learned counsel appearing for Smt. Geeta Devi representing the appellant has stated that the judgment of conviction and sentence dated 9.5.1988 is illegal and contrary to the factual position on record. The learned counsel has argued that the trial court while considering the statements of the prosecution witnesses in the judgment of conviction and sentence have not properly considered their statements. The prosecution witnesses PW. 4 Gulab Mohammed and PW. 9 Satya Narain have stated that the accused appellant stated to Kanchan that why she is demolishing his wall but Kanchan has not answered about it and has not stopped demolishing the wall. It is clear from the statements of these witnesses that deceased Kanchan continued to demolish the wall of the accused appellant and created a mischievous position for safety of his house. PW. 3 and PW. 9 in their statements have stated that Kanchan first pelted stones at accused appellant and thereafter accused appellant pelted stones at her. The accused appellant pelted stones in his right of private defence. The trial Court has failed to consider that the accused appellant was duty bound to take proceedings against deceased Kanchan. The learned counsel has further placing reliance on section 97 IPC stated that every person has a right to defend his own body, and the body of any other person, against any offence affecting the human body and that the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. But the trial court has failed to consider this aspect of the case. The learned counsel has further argued that the right of the accused appellant under section 233 Cr.P.C. of producing defence was not given to the accused appellant as no opportunity was afforded to the accused appellant during trial to defend his case. It was also argued that the accused appellant was working in the RSEB and if he is sentenced to the period of imprisonment and the benefit of provisions of the offenders Act are not given to him it will affect the service rendered by him in the RSEB. In these circumstances it was prayed that the accused appellant may be awarded to him may also be quashed.

(3.) Mr. Peeyush Kumar, Public Prosecutor appearing for the State has stated that the trial Court has considered the statements of the witnesses and the material available on record and the judgment of conviction and sentence was rightly passed.