BANWARI LAL & ORS. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Challenge in this appeal filed under Sec.374 of the Code of Criminal Procedure ('the Code', for short) is to the correctness of the judgment and order dated 28.02.1986 rendered in Sessions Case No.63 of 1983 by the learned Sessions Judge, Merta, by which appellant No.1 Banwarilal S/o. Shri Rughnath, original accused No.1 ('A-1', for short) has been convicted for commission of the offence under Sec.302 of the Indian Penal Code ('IPC', for short) and has been sentenced to imprisonment for life and fine of Rs.500.00, in default of payment of fine to undergo further simple imprisonment of one year whereas appellant No.2 to 6 i.e. Kailash, Ramdeo, Rughnath Ram, Kamla and Bholki original accused No.2 to 6 (A-2 to A-6) have been convicted for the offence under Sec. 148, 323/149 and 325/149 Penal Code and they have been extended benefit of the Probation of Offenders Act and each one of them has been directed to pay by way of compensation Rs.400 to Panchu Ram and Rs.200 to Smt. Goran within 25 days.

(2.) The prosecution case, as disclosed from the FIR and unfolded during trial is as under:

(3.) Mr. Vineet Jain, learned counsel for the accused submitted that it was a case of free fight in connection with the turn of water between accused persons and complainant party, who are near relatives and it is also mentioned in the FIR that an altercation took place between Rughnath and Panchuram relating to the turn of water and thereafter scuffle started between both the parties. The complainant party persons were the assailants and in self defence accused A-1 gave single blow to deceased Jawara, however, the trial Court disbelieved the theory of self defence and erroneously reached to the conclusion that the accused were the assailants and committed the offence. It is stated that the trial Court was misdirected in reaching to the said conclusion which has resulted into miscarriage of justice, therefore, according to him, the judgment and order of conviction recorded against the accused deserves to be quashed and set aside by allowing this appeal and thereby acquitting the accused of the offence with which they were charged. Alternatively, it is submitted that so far as homicidal death of Jawara is concerned, there is no dispute and if this Court comes to the conclusion that accused A-1 is the author of the fatal injury caused to the deceased then also prior to causing of the injury there was altercation in connection with the turn of water and in a sudden fight accused A-1 gave single blow to deceased Jawara, therefore, it is not a case of murder punishable under Sec.302 Penal Code but is a case of culpable homicide not amounting to murder punishable under Sec.304 Part II IPC. He also submits that the incident has taken place in the year 1983 and accused A-1 has remained in Jail for round about three years, therefore, custodial sentence suffered by accused A-1 may be treated as substantive sentence and he may be set at liberty. So far as remaining accused persons are concerned, according to him, there is no evidence against them, therefore, they may be acquitted of the offence with which they were charged.