Vyas, J. - (1.) THIS Jail appeal is directed against the Judgment dated 1. 12. 2005, passed by the learned Sessions Judge, Pratabgarh, whereby appellant Roopa S/o. Rajing has been convicted of offences under Section 302, IPC, and sentenced to life imprisonment and a fine of Rs. 5,000/-, in default of payment of fine, to further under six month's Rigorous Imprisonment; under Section 447, IPC, to 3 months' simple imprisonment and under Section 323, IPC, to three months' simple imprisonment. All the substantive sentences were directed to run concurrently.
(2.) THE prosecution story, as unfolded during trial, is that on 5. 4. 2005, at 6. 00 P. M. , one Babulal s/o Rajia lodged a verbal report to the Sub-Inspector of Police Bhairon Singh, Police Station, Pratabgarh, District- Chittorgrath that on the day of the incident at around 5. 00 P. M. , he was in his field. His nephew Nanalal s/o Kesuram, aged 10 years and his niece Dhapuri, both were grazing she-goats in the field of `aama wala'. Suddenly, his nephew cried loudly "maare- re, maare-re, Dauro'. His cries attracted the informant-Babulal, Devilal and Ambalal and they immediately rushed to the scene of the incident and saw that accused Roopa s/o. Rajiga was inflicting `lath' blows on the head of his nephew Nanalal. He has inflicted 3-4 `lath' blows on the head of Nanalal. On his intervening, Roopa gave him `lath' blows also, on his head, legs and hands. Ultimately, the informant- Babulal, Devilal, Ambalal and Jagdish succeeded in over-powering Roopa. THEreafter, they found that Nanalal had died on the spot. Accused Roopa immediately took to his heels. THEreafter, his brother-Keshulal also came to the scene of the incident. It was further alleged by informant- Babulal that as she-goats of Nana had entered the field Roopa, so, with an intention to kill him (Nanalal), Roopa has given `lath' blows on his head and has committed his murder. This information was recorded into writing vide Ex. P. 9. On the basis of the aforesaid report (Ex. P. 9), FIR No. 166/2005 (Ex. P. 28) was recorded and a case under Section 302, IPC, was registered and investigation commenced. During the course of investigation, photographs of the deceased Nanalal were taken vide Exs. P. 1 to P. 8, Panchayatnama of the dead body of deceased Nanalal was prepared vide Ex. P. 10, blood-stained clothes of the deceased were also seized vide Ex. P. 11, site was inspected vide Ex. P. 12, and site-plan was prepared vide Ex. P. 13, injury report of Babulal was prepared vide Ex. P. 14, blood-smeared and controlled soil were taken from the scene of the incident and sealed vide Ex. P. 15, dead body of the deceased was handed over to his father vide Ex. P. 16, seized and sealed articles were sent to the Assistant Director, FSL, Udaipur vide Ex. P. 17, Post-Mortem Report of deceased Nanalal was got prepared vide Ex. P. 19, accused-Roopa was arrested vide Ex. P. 21, `lath' was seized and sealed vide Ex. P. 22, clothes of the deceased were also seized and sealed vide Ex. P. 27, statements of the witnesses under Section 161, Cr. P. C. were recorded and the FSL Examination report was obtained vide Ex. P. 37. The accused Roopa was also got medically examined vide injury report Ex. D. 4a. After completing necessary investigation, Police filed challan against the appellant under Sections 447, 302 and 323, IPC, in the Court of the Additional Chief Judicial Magistrate, Pratabgarh. Since the case was exclusively triable by the Court of Sessions Judge, it was, therefore, committed to the Sessions Judge, for trial. The learned Sessions Judge, Pratabgarh framed charges against the accused. The accused pleaded not guilty and claimed trial. In order to prove and establish its case, the prosecution produced 19 witnesses (PW. 1 to PW. 19) and produced 37 documents (Exs. P. 1 to P. 37 ). In defence, the accused produced one witness Dr. Vijay Agrawal (DW. 1 ). In the explanation under Section 313, Cr. P. C. , the accused pleaded not guilty and stated that he has not given any beating, rather he has been beaten.
(3.) AFTER hearing the final submissions of both the learned counsel for the parties, the learned Sessions Judge, Pratabgarh found the case proved against the accused-appellant Roopa and vide his Judgment dated 1. 12. 2005, convicted and sentenced him as mentioned above. Being aggrieved by the Judgment dated 1. 12. 2005, the accused-appellant Roopa has preferred this Jail appeal. It is submitted by learned counsel, appearing for the appellant that the prosecution witnesses- PW. 11 Dhapuri, PW. 2 Babulal, PW. 4 Devilal, PW. 10 Ambalal and PW. 16 Jagdish are interested witnesses and they are related to the deceased Nanalal. Thus, according to him, their testimony is not trustworthy. It is further submitted there were inimical relations between the parties as the boundary walls of the fields of both the are situate adjacent to each other. It is also submitted that she-goats had entered into the field of Roopa, on account of which, he became angry and quarrelled with Babulal (PW. 2) and in the meanwhile, Nanalal came to intervene and, in that process, he (Nanalal) sustained injuries of `lath' on his head which resulted into his death. It is submitted that in the scuffle, not only Babulal, but Roopa had also sustained injuries. According to the learned counsel, the accused had no intention to cause the death of deceased Nanalal. It is contended by the learned counsel that PW. 11 Dhapu has deposed that Roopa inflicted four `lath' blows on the head of deceased Nanalal, whereas, according to the Post Mortem Report (Ex. P. 19) three injuries were found on the external part of the body of the deceased. It is further contended by the learned counsel that Vardichand, who informed the Police on telephone about the incident, has not been examined by the prosecution. It is also contended that the neighbours, whose fields are situated near the place of incident, have not been examined by the prosecution. Lastly, it is submitted by the learned counsel for the accused- appellant that the offence committed by him falls within the purview of Section 304, Part II, IPC and not Sections 302, IPC. In support of his contentions, learned counsel has placed reliance on the case of Ganga Ram vs. State (2006 (1) Cr. L. R. (Raj.) 194), Hari Ram vs. State of haryana (AIR 1983 SC 185) and Khuman Singh & others vs. State of M. P. (2005 Cr. L. R. (SC) 164) ;