HAMEEDA Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant Hameeda has been convicted for the murder of one Rammola on the evening of Nov. 26, 1971, and has been sentenced to undergo imprisonment for life. The conviction of the appellant is based on the evidence of Ratta (P. W. 1) and also on the admission of the appellant. The prosecution case was that on the evening of November 26, 1971, deceased Rammola was sitting alongwith three persons and Ratta (P. W. 1) taking drinks, near the river bed, close to the village of Rawala Gaon, Samoli. The appellant was passing that way. Seeing him, the deceased called him to join with him for drinks. The appellant had drinks alongwith them and thereafter they left the place to go to the village. On the way, according to Ratta (P. W. 1) appellant assaulted Rammola with his sword causing injuries, as a result of which he died. According to Ratta (P. W. 1) he was threatened by the appellant. Although he went to the village and slept in the house of the Hema (D.W1) he did not inform her nor any body in the village. According to him he informed Bhera (P. W. 3), uncle of the deceased, on the next morning who sent Keoriya (P. W. 2) to inform the police. Keoriya went to the police station and gave a complaint (Ex.P. 31. In that complaint in the beginning Keoriya did not mention the name of Ratta (P. W. I). It is, therefore, clear that Ratta could not have been eye witness of the incident as he did not tell D. W. 2 (Hema) or any body in the village. This is an improbable conduct. As pointed out by the Supreme Court, no reliance could be placed on such evidence to convict the person but however in this case the accused appellant admitted his presence and has given his own account of the incident. According to him, Ratta (P. W. 1) was sent to bring some more liquor. Then quarrel arose between him and the deceased and during the course of the quarrel, deceased took out knife and assaulted and he sustained injuries. He further stated that in order to save himself he took out the dagger (knife) which was with him and assaulted. Although he has not stated that in exercise of the right of private defence, he indicted the injuries to the deceased, it is clear from his statement that he himself had inflicted injuries to the deceased in exercise of the right of private defence. In our opinion, he has caused the injuries and, therefore, we are of the view that the appellant has exceeded the right of private defence. Therefore, his case falls under section 304 part II of the Indian Penal Code. As such we set aside the conviction of the appellant under section 302 Penal Code and sentence imposed thereon. Instead we convict the appellant under section 304 part II, I.P.C. and sentenced him to the period already undergone by him which is about 7 years.

(2.) Accordingly, we direct that the accused be set at liberty forthwith. With this modification in sentence the appeal is dismissed. Appeal dismissed with modification.