- (1.) The appellants herein have preferred the instant appeal under Section 389 CrPC assailing the judgment dated 18.07.2019 passed by the learned Additional Sessions Judge, Kherwara, District Udaipur in Sessions Case No.17/2016, whereby they have been convicted and sentenced as below :- Name of Offence for Sentence awarded the which convicted Accused -appellant (1) Keshu Section 302 IPC Life imprisonment alongwith a fine of (2) Narayan Rs.10000/- and in default of payment of fine, further to undergo simple imprisonment of 1 year Section 323 IPC Simple imprisonment of 3 months Section 341 IPC Simple imprisonment of 1 month All the substantive sentences were ordered to run concurrently.
(2.) Mr. Deepak Menaria, the learned counsel representing, the appellants, urged that the appellants herein are in custody since March 2012. He urged that even if the prosecution allegations are accepted to be true on the face of the record, apparently, conviction of the appellants herein for the charge under Section 302 IPC cannot be sustained. In this regard, Mr. Menaria drew the court's attention to the following findings recorded by the trial court in the impugned judgment and urged that it was a clear case of free fight between the two parties under the influence of liquor : ....[VARNACULAR TEXT OMITTED]....
(3.) He submitted that after holding that the incident took place as a free fight and that both the parties had lodged cross cases against each other, the learned trial court acquitted the accused of the charge under Section 149 IPC. Mr. Menaria submitted that as per the highest allegation of the prosecution eye-witnesses, the accused Narayan is alleged to have inflicted an iron wire clad lathi blow on the head of the deceased Kishan, whereas the accused Keshu is alleged to have inflicted a blow of a knuckle duster on the head of the deceased. Mr. Menaria submitted that as per the deposition of medical jurist Dr. Sushank Wanawat (P.W.8) and the postmortem report Ex.P/19, two fractures were found existing on the head area of the deceased : 1. fracture of frontal bone just above right orbit bone. 2. fracture of parieto-occipital bone junction right side. He submitted that as per the postmortem report, only one lacerated wound admeasuring 1 cm x 1 cm was noticed by the doctor on the parieto-occipital bone junction and thus, the case of the eye-witnesses that both the accused inflicted one blow each on the head of the deceased is totally contradicted by the medical testimony. He further submitted that all the accused persons, namely, Narayan, Keshu, Naku and Shiva, received numerous injuries in the very same incident, for which, no explanation was offered by the prosecution witnesses. He, thus, urged that it cannot be pin-pointed from the prosecution evidence that which of the accused appellants was responsible for causing the solitary external injury on the head of the deceased which proved fatal and therefore, conviction of both the appellants for the charge under Section 302 IPC cannot be sustained. Thus, conviction of the appellants deserves to be altered to one under Section 325 IPC or Section 304 Part II IPC. On these grounds, Mr. Menaria implored the court to accept the appeal, set aside the impugned judgment and reduce the sentence awarded to the appellants while suitably toning down the offence alleged. ;