Sunil Kumar Garg, J. - (1.) This appeal has been filed by the accused-appellant against the judgment and order dated 31.7.1996 passed by the learned Additional Sessions Judge No. 2, Chittorgarh in Sessions Case No. 124/94 by which he convicted the accused-appellant for the offence under section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 100/-, in default of payment of fine, to further undergo five days' SI. By the same judgment, the learned Additional Sessions Judge acquitted gait. Chhau Kanwar of the charges framed against her for the offence under sections 302/109 or 302/114 or 302/34 IPC.
(2.) It arises in the following circumstances:- On 25.6.1994 at about 3.15 p.m., PW 1 Dunger Singh lodged a report Ex.P/1 before PW 14 Roop Kishore, SHO, Police Station Begliu stating inter alia that he and his son Chittar Singh (hereinafter referred to as the deceased) went to the field for sowing groundnut as the field was given to him on contrast (Theka) by PW 6 Ram Singh, who is son of the accused-appellant. It is further stated in the report that they were resisted by the accused-appellant and upon this, PW 1 Dunger Singh told accused-appellant that he and his son (deceased) was given the land in question on contract and that is why, they had come there to sow the field of groundnut. It is further stated in the report that PW 6 Ram Singh also intervened in the matter and told his father-accused-appellant that land in question had been given by him to them on contract. But, upon this, accused-appellant became angry and went to his house and from where he took his licensed gun and, thereafter, he fired one shot on the deceased, as a result of which deceased fell on the ground and thereafter, deceased was taken to the hospital and deceased died on the same day. It is further stated in the report that this incident was witnessed by PW 8 Rami and PW 9 Bhanwari Bai also. On this report, police registered the case and started investigation. During investigation, the post-mortem of the dead body of the deceased was got conducted by PW 12 Dr. Vijay Kumar Mehta and the post-mortem report of the deceased is Ex.P/14, where he opined that cause of death of deceased was due to excessive haemorrhage as a result of injury to liver due to gun shot injury. After usual investigation, the police submitted challan against, the present accused-appellant and one Smt. Chhau Kanwar in the Court of Magistrate and from where the case was committed to the Court of Session. On 23.9.1994, the learned Additional Sessions Judge No. 2, Chittorgarh framed charges against the accused-appellant for the offence under section 302 IPC and against accused-Smt. Chhau Kanwar for the offence under sections 302/109 or 302/114 or 302/34 IPC. The charges were read over and explained to the accused. They denied charges and claimed trial. During the course of trial, the prosecution produced as many as 16 witnesses and got exhibited several documents. Thereafter, statements of the accused under section 313 Cr.P.C. were recorded. The accused did not lead any evidence in defence, but got exhibited some documents. The learned Additional Sessions Judge No. 2 Chittorgarh vide his judgment and order dated 31.7.1996 acquitted the accused-Smt. Chhau Kanwar of the charges framed against her, but convicted and sentenced the present accused-appellant in the manner as stated above holding inter alia that the prosecution has proved its case beyond reasonable doubt against the present accused-appellant for the offence under section 302 IPC and the submission of the learned counsel that present accused-appellant had the right of private defence was also rejected by the learned Additional Sessions Judge No. 2, Chittorgarh. Aggrieved from the said judgment and order dated 31.7.1996 passed by the learned Additional Sessions Judge No. 2, Chittorgarh, the present appeal has been filed by the present accused-appellant.
(3.) In this appeal, the learned counsel for the accused-appellant has made only one submission and the same is that in this case, there was no intention on the part of the accused-appellant to murder deceased as the deceased and accused-appellant are very close relatives and on the spur of moment, he fired only one shot and not more than one, as a result of which, deceased died and, therefore, the case does not travel beyond the provisions of Section 304 Part II IPC and does not fall under section 302 IPC and this aspect may be examined keeping in mind that the accused-appellant today is of 84 years of age and he was arrested through Ex.P/6 on 25.6.1994 and when his statements under section 313 Cr.P.C. were recorded on 31.4.1996, he was about 80 years of age and today he is about 84 years of age and at any moment he can die in jail.;