KESRA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) SINCE both the appeals are directed against one and the same judgment of the learned Addl. Sessions Judge, Hanuman Garh they were heard together and are disposed of by a single judgment. By the impugned judgment, accused Kesra and Manaram were convicted under Section 304 Part -II, I.P.C. and each was sentenced to 18 months' rigorous imprisonment with a fine of Rs. 100/ -, in default of the payment of fine to further undergo two months' like imprisonment. By the same judgment, they were acquitted of the offence under Section 302, I.P.C. The accused have come -up in appeal and challenge their conviction. The State has taken the appeal against the acquittal.

(2.) PW 4 Motaram Jat of village Lalgarh district Ganganagar appeared before the Deputy Superintendent of Police, Hanumangarh on February 16, 1974 and presented written report Ex. P 5. The Deputy Superintendent of Police directed the Station House Officer, P.S. Suratgarh to treat Ex. 5 as the First Information Report, register the case and make investigation. Ex. P 5 was presented at police station, Suratgarh at about 10.45 a.m. on February 17,1974 It was stated there in that the appellants and three more persons Nanu, Sugna and the wife of Aadu had committed the murder of Jeewan Jat R/o village Hitesar. The incident was seen by Motaram PW 4, Birbal PW 5, Bheraram PW 2 and Bhagirath PW 3. The police registered the case and the investigation was taken up.

(3.) THE doctor was of the opinion that cause of death of Jeewan was shock produced by haemorrhage due to multiple scalp injuries. The postmortem report prepared by him is Ex. PW 1. The appellants were arrested. On the completion of investigation, the police submitted a challan against the appellants in the Court of Munsif and Judicial Magistrate, Suratgarh, who, in his turn, committed the case for trial to the Court of Sessions. The case came for trial before the learned Additional Sessions Judge, Hanumangarh. He framed charges under Section 302 and in alternative under Section 302/34, I.P.C. against them, to which they pleaded not guilty and faced the trial. The defence taken by the appellants was that PW 2 Bhera, PW 3 Bhagirath and the deceased Jeewan came to their Dhani in the morning on February 15, 1974. Bhagirath had lathi while Jeewan and Bhera had guns. Bhera fired the shot which hit their father Aaduram. Aaduram succumbed to the injuries then and there. Jeewan also fired his gun which could not hit any body. Thereafter Bhera, Bhagirath and Jeewan starred Seating them (the appellants). In order to save themselves from being killed, they also took -up lathies and struck blows to Jeewan. Bhera and Bhagirath managed to flee away. Jeewan fell down and passed away after some minutes. The right of private defence of person was thus, put forward by the appellants. In support of its case, the prosecution examined seven witnesses and filed some documents. In defence, the accused adduced no evidence. During trial PW 2 Bhera and PW Bhagirath turned hostile and lent no support to the prosecution. PW 4 Motaram and PW 5 Birblal were taken as falsely planted witnesses, who though had not seen the incident, asserted themselves to be the ocular witnesses. The learned Sessions Judge disbelieved them completely. However, taking into consideration the statements of the accused persons recorded under Section 313 Cr. P.C. the learned Sessions Judge concluded that though the appellants had a right of private defence, they had exceeded it. The appellants were consequently convicted and sentenced as mentioned at the very out -set. The contention of the State is that the appellants were wrongly acquitted of the offence under Section 302, I.P.C.