MAHENDRA MEENA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Both these appeals arise out of judgment dated 22-1- 02 passed by the Addl. Sessions Judge (Fast Track), Baran whereby he has convicted both the appellants under Section 302/34 of Indian Penal Code ('1PC' for short) and has sentenced them to imprisonment for life and has imposed a fine of Rs. 2.000/- and to further undergo 3 months of rigorous imprisonment in default thereof. Since both the appeals arise out of the same judgment, they are being decided by this common judgment.

(2.) According to the prosecution, on 1- 10-2000 Chhagan Lal (P.W.I) lodged a written report (Ex.P.I) at Police Station Bhanwargarh, District Baran wherein he claimed that "as usual his uncle's son, Mool Chand, took out his goats for grazing. On that day around three O'clock in the afternoon Vijendra Singh, s/o Bhanwar Lal Gurjar and Mahendra, s/o Mohan Lal Meena went to the place where Mool Chand was grazing his goats, Mahendra was carrying 'Khutiya' (a sharp-edged weapon) and Vijendra was carrying a 'Gandasi' (an axe like sharp-edged weapon). When they went near Mool Chanel, both of them caught hold one of the goats to which his brother Mool Chand protested. Upon his protest, Vijendra Gurjar and Mahendra Meena assaulted his brother. Consequently, his brother died. Devi Singh s/o Ram Karan and Hemraj, s/o Pratap have witnessed this incident. My brother's body has been brought back to the village where it is lying right now." On the basis of this report a formal FIR (Ex.P2) FIR No. 109/2000, was chalked out for offences under Section 302/34 of lPC and the investigation commenced. After the investigation, a charge-sheet was filed against both the appellants for offences under Section 302/ 34 of IPC. The appellants denied the charges and claimed trial. In order to prove its case the prosecution examined sixteen witnesses and submitted a number of documents. The appellants neither examined any witness, nor submitted any document in their defence. After going through the oral and documentary evidence, the learned trial Court convited and sentenced the appellants as aforementioned. Hence these appeals before us.

(3.) Mr. Sanjay Gangwal, the learned counsel for appellant Vijendra Singh, has vehemently argued that the star witnesses of the prosecution are Devi Singh (P.W.5) "and Hemraj (P.W.6). However, both of them happen to be chance witnesses. For, although they claim to be working near the place of the incident, neither in the site plan, nor through any oral evidence has it been proved that the place where they were tilling the field is nearabout the scene of the crime. Therefore, their presence at the scene of the crime is unnatural. Moreover, Hemraj happens to be a distant grandson of the deceased. Thus, he is an interested witness. Hence, his testimony cannot be accepted, Lastly, he has pleaded that the incident has suddently occurred without any pre-meditation, in the heat of passion. Thus, there is no intention to kill. Hence, the offence falls under Section 304. Part I of IPC and not under Section 302, IPC.