KALU AND OTHERS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This criminal appeal is directed against the judgment dated 22.10.2003 passed by the learned Additional Sessions Judge (Fast Track), Pali, Camp Jaitaran, whereby, all the four accused appellants namely Kalu, Ladu, Babu and Moda were convicted for offence under Section 302/34 I.P.C. and sentenced to life imprisonment and to pay a fine of Rs. 2,000/-, in default of payment of fine to further undergo six months' R.I. All the four accused appellants were also convicted for offence under Section 307/34 I.P.C. and sentenced to 10 years' R.I. and to pay a fine of Rs. 2,000/-, in default of payment of fine to further undergo six months' RI., for offence under Section 323 I.P.C. to undergo one year's R.I. and to pay a fine of Rs. 1000/-, in default of payment of fine to further undergo two months' R.I., for offence under Section 323/34 I.P.C. to undergo one year's R.I. and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo two months R.I. and for offence under Section 447 I.P.C. to undergo two months' R.I. and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo seven days' R.I. All the sentences were ordered to run concurrently,

(2.) Facts leading to this appeal are that on 29.5.2001, Kishna son of Heera, by Caste GUrjar filed a report at Amritkaur Hospital, Beawar to S.H.O., Police Station Kalu that there is a dispute between his family and accused appellants with regard to the land, for which, cases are pending, and on account of this, accused appellants Kalu, Moda, Ladu and Babu, residents of Khedawala came in the field at 1 P.M. for cultivation on the tractor of Khinvraj, being driven by Meva Gurjar. Upon resistant by his brothers Chandra and Narayan, they inflicted blows on the head and other parts of their body. Accused appellant Kalu was having 'Kunt' in his hand and rest of the accused appellants were having lathis in their hands. Kalu inflicted 'Kunt' blow on the head of Chandra Ram and also on the head of Narayan. Moda Ram inflicted lathi blows on the legs of Narayan. Accused appellants Ladu and Babu also inflicted blows with lathi. On hearing the cries, neighbours Dayal, Rukma, Chandra and Narayani came and intervened. The incident was told to him by his wife Rukma and upon this he took Chandra and Narayan at Beawar Hospital. Upon this report, a case under Sections 447, 341, 323, 324, 307/34 I.P.C. was registered and investigation was commenced. Injured Narayan died during treatment. After investigation, all the four accused appellants were challaned under Sections 302, 307, 341, 323 read with Section 34 and Section 447 I.P.C. Accused appellants were charged accordingly, to which they pleaded not guilty. Prosecution examined 28 witnesses. Statements of the accused appellants were recorded under Section 313 Cr.P.C. They produced three witnesses in defence. After hearing the arguments, the learned trial Judge convicted the accused appellants as above.

(3.) Learned counsel for the accused appellants has assailed the judgment of the learned trial Court on the ground that the dispute was with regard to the cultivation of the land, which was belonging to the accused appellants, and it is alleged that the lathis were used in the incident, and accused appellant Kalu has also received injuries, which the learned trial Court has ignored, and whatever the act has been committed, that was in right of their private defence. Learned counsel further submits that there was no intention on the part of the accused appellants to kill Narayan. If at all the prosecution story as it is, if believed, it cannot be a case of more than Section 323 I.P.C. or at the most under Section 304 Part -II I.P.C., for which the accused appellants have already remained in custody for more than five and half years except accused appellant Ladu, who has remained in custody for more than three and half years. In support of his contention, learned counsel has placed reliance on a decision of the Hon'ble Supreme Court in Nasiruddin Khan & Ors. v. State of Bihar, reported in 2008 AIR SCW 5398 .