R.S.CHAUHAN J. - (1.) THROUGH this jail appeal, Nathu Lal and Hansaram have challenged the judgment dated 19.04.2006 passed by the Additional District & Sessions Judge (Fast Track) No.1, Udaipur, whereby they have been convicted for offences under Sections 302/34 and 201, IPC,
(2.) BRIEFLY the facts of the case are that on 11.06.2005, Manna (P.W.3) submitted a written report (Ex.P/9) at Police Station Sayra wherein he had claimed that they are three brothers, namely Nathu, Lachha and he himself. He further claimed that in 2002 his brother, Lachha, had committed murder of their parents. Thus, he was sent to jail. After he was released from the jail, Lachha had become mentally weak. His wife had also left him and gone in Nata. He further claimed that on 05.06.2005 around 9.00 a.m. when he himself came back from his in-laws' place, he asked his elder brother, Nathu, and his cousin brother, Hansa as to the whereabouts of Lachha. They told him that on Saturday Lachha had started throwing the roof tiles of the hut and had tried to burn the hut. Therefore, they threatened him. Consequently, he ran away. They tried to look for him, but they could not find him. He further claimed that around 6:00 p.m., in front of Deva Patel, Taldab3. Hirka and Khuma, he again asked Nathu and Hansaram about the whereabouts of Lachha. They informed these persons that since Lachha was not listening to them and was trying to burn the hut, they struck him with a wooden stick (Lath). Consequently, he died. In order to get rid of the body, they have hidden it. On the basis of this written report, the police registered a formal FIR, FIR No.59/2005, for offences under Sections 302, 201/34, IPC and initiated the investigation. During the investigation, the body of Lachha was discovered and sent for post-mortem. Subsequently, the police filed a charge-sheet against both the accused-appellants, Nathu and Hansaram. In order to buttress its case, the prosecution examined eighteen witnesses and submitted thirty-two documents. However, the defence neither examined any witness, nor submitted any documents. After going through the oral and documentary evidence, vide judgment dated 19.04.2006, the learned Judge convicted both the appellants and sentenced them to life imprisonment for offences under Sections 302 /34, IPC, imposed them with a fine of Rs.2,000.00 and further directed them to undergo six months of simple imprisonment in default thereof. For offence under Section 201, IPC, they were sentenced to five years of simple imprisonment, imposed with a fine of Rs.2,000.00 and further directed to undergo six months of simple imprisonment in default thereof. Hence, this jail appeal before this court by both the appellants.
(3.) MR . Kaluram Bhati, the learned counsel for the appellants, has vehemently raised the following contentions before this Court: firstly, according to Mana (P.W.3), Lachha used to be mentally disturbed. He had tried to throw away the tiles and had tried to burn the hut. Therefore, the appellants had intervened. During their intervention, they had allegedly assaulted Lachha. According to the Post-Mortem Report (Ex.P/16), Lachha had sustained a single injury on the back of his head which had resulted in a linear fracture of the occipital bone. Thus, it is a case of single injury. Secondly, even if the case of the prosecution were taken to be true that the injury was caused by them, the said injury was not caused after planning or with predetermination. Thus, the injury was not caused with intention to cause death. At best, only knowledge can be attributed to them that the injury was likely to cause death. Hence, the case does not fall within the ambit of Section 302, IPC. At worse, the case falls within the ambit and scope of Section 304, Part II, IPC. Lastly, the appellants have already served seven years of sentence. Therefore, their sentence should be reduced to as undergone.;