- (1.) This appeal has been filed by the accused appellant Banshilal (now dead) against the judgment and order of conviction and sentence dated 9.5.1988 passed by Additional Sessions Judge No. 2 Ajmer in Sessions Case No. 58/1986 (112/1986) whereby the accused appellant Banshilal was convicted for the offence under Section 304 Part II and sentenced to three years rigorous imprisonment and fine of Rs. 1000/- and in default of payment to further suffer six months additional simple imprisonment. It may be mentioned that the appellant Banshilal died on 17.3.2008 and his wife wants to represent the present appeal and for that she filed an application dated 13.1.2009 for allowing her to represent her husband in the appeal and this court allowed the said application vide order dated 10.2.2009. This court passed the following order: "Heard on application. It is prayed in the application that appellant has expired and in his place his wife may be permitted to pursue the legal remedy. No objection has been raised from other side. The application stands allowed. List on 18.2.2009." In these circumstances the appellant who died on 17.3.2008 now represented by his wife Smt. Geetadevi, is heard through her counsel Mr. O.S. Lakhawat as permitted by this court on 10.2.2009. The public prosecutor has also not raised any objection for pursuing the remedy. In view of the order of this court the counsel for Smt. Geeta Devi was heard on 15.5.2013. The Public Prosecutor was also heard on behalf of the State. After hearing both the counsel the judgment in this case was reserved. Brief facts as per the case of the prosecution is that a written report was presented before the Police Station Roopangarh by Smt. Manju wife of Dhan. Prakash by caste Dholi resident of village Roopangarh Distt. Ajmer. In the report it was stated that on 18.4.1986 on the day of Ramnavmi at about 11.30 p.m. when her mother in law was standing near her boundary wall and at that time accused Banshilal who is neighbour was also standing on his roof of his house, at that time Banshilal stated that why her mother in law is breaking his wall. Her mother in law stated that she is maintaining her wall. On this Banshi started abusing her mother in law. Upon this Banshi Lal's son in law Jagdish and his daughter Narangi and his wife Geeta pelted stones on her mother in law and her mother in law received injuries. She further stated that she started hurting and other persons in the nearby Gopal and his mother in law Sohani and Pappu Dholi came and at that time her mother in law was bleeding from the head. All these persons taken her mother in law to Hospital. It was prayed that action to taken against above persons who have pelted stones on her mother in law and on account of which she received injuries on her head. Upon receiving the above report FIR No. 27/1986 was registered for the offence under Sections 336, 323 read with section 34 IPC. The police started usual investigation and during investigation Smt. Kanchan died and the case was converted to section 302 IPC and the accused Banshilal was arrested. The charge sheet was filed for the offence under Section 302 IPC against the accused appellant and thereafter the case was committed to the court of sessions. The Sessions Judge Ajmer transferred the said case to the court of Addl. Sessions Judge Ajmer. The trial Court framed charge sunder section 302 IPC and the accused denied the charge and claimed to be tried. The prosecution in support of its case examined 13 witnesses. The Statement of accused under Section 313 Cr.P.C. was recorded. After hearing both the sides the trial Court convicted the accused appellant for the offence under section 304 Part II IPC as mentioned above.
(2.) Mr. O.S. Lakhawat, learned counsel appearing for Smt. Geeta Devi representing the appellant has stated that the judgment of conviction and sentence dated 9.5.1988 is illegal and contrary to the factual position on record. The learned counsel has argued that the trial court while considering the statements of the prosecution witnesses in the judgment of conviction and sentence have not properly considered their statements. The prosecution witnesses PW. 4 Gulab Mohammed and PW. 9 Satya Narain have stated that the accused appellant stated to Kanchan that why she is demolishing his wall but Kanchan has not answered about it and has not stopped demolishing the wall. It is clear from the statements of these witnesses that deceased Kanchan continued to demolish the wall of the accused appellant and created a mischievous position for safety of his house. PW. 3 and PW. 9 in their statements have stated that Kanchan first pelted stones at accused appellant and thereafter accused appellant pelted stones at her. The accused appellant pelted stones in his right of private defence. The trial Court has failed to consider that the accused appellant was duty bound to take proceedings against deceased Kanchan. The learned counsel has further placing reliance on section 97 IPC stated that every person has a right to defend his own body, and the body of any other person, against any offence affecting the human body and that the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. But the trial court has failed to consider this aspect of the case. The learned counsel has further argued that the right of the accused appellant under section 233 Cr.P.C. of producing defence was not given to the accused appellant as no opportunity was afforded to the accused appellant during trial to defend his case. It was also argued that the accused appellant was working in the RSEB and if he is sentenced to the period of imprisonment and the benefit of provisions of the offenders Act are not given to him it will affect the service rendered by him in the RSEB. In these circumstances it was prayed that the accused appellant may be awarded to him may also be quashed.
(3.) Mr. Peeyush Kumar, Public Prosecutor appearing for the State has stated that the trial Court has considered the statements of the witnesses and the material available on record and the judgment of conviction and sentence was rightly passed.;