J. R. CHOPRA, J. - (1.) THIS is an appeal filed through Jail against the judgment of learned Addl. Sessions Judge, Raisinghnagar dated 23. 5. 85 whereby the accused appellant Dari @ Sardarsingh has been held guilty of the offence u/sec. 307 IPC and has been sentenced to 10 years R. I. together with a fine of Rs. 500/- and in default to undergo simple imprisonment for one and half months.
(2.) THE facts necessary to be noticed for the disposal of this appeal briefly stated are : that in the night intervaning between 17th and 18th of May, 1983, the field of Nandram Jat which situated in 36-P. S. was being irrigated. It is alleged that Nand Ram Megwal's field is also situated near the field of Nandram Jat and he irrigated his field from the turn fixed for Nandram Jat. At the relevant time of the night, initially the water was going in the field of Nandram Jat. Dari @ Sardar Singh was working as a hali of Nandram Jat. Deceased Rajaram was the son of Nandram Jat. Accused Dari @ Sardarsingh was working on the field and Rajaram son of Nandram Jat who was present in the field slept. When the turn of Nandram Megwal came, he alongwith his grand son Rajaram took the water to their field. Krishna who is another grand son of Nandram Megwal slept by the side of the Rajaram Jat. It is alleged that when Nandram Megwal and his grand son Rajaram Jat were watering their field, Krishna came there in an injured condition, his throat was cut and he was professedly bleeding. When asked, he told his grand father in slow and halting tune that Dari has cut him. He then left Krishna with Rajaram who is his brother and went to look for Rajaram Jat. When he went near Rajaram Jat, he found him dead on account of the injuries received by him. It is alleged that these injuries have been caused to Rajaram Jat and Krishna with a Kassi (spade ). THE matter was reported to the police by Nandram Megwal at 6 A. M. on 18. 5. 83 at P. S. Raisinghnagar on the basis of which an F. I. R. which is marked Ex. P. 1 was drawn. Site was inspected. Post-mortem of the dead body of Rajaram was got conducted and medical examination of injuries sustained by Krishna was got done. He was admitted in the hospital and after great efforts, he could be saved although he lost his voice, in this process, on account of the injury received by him. After usual investigation, the case against the accused was challaned in the Court of learned MJM, Raisingh Nagar from where it was committed for trial to the Court of learned Addl. Sessions Judge, Raisinghnagar who after holding the trial, acquitted the accused of the offence u/sec. 302 IPC and convicted and sentenced the accused as aforesaid. THE accused filed an appeal from Jail. THEre was nobody to represent him and, therefore, legal assistance has provided to him by the Court by appointing Mr. S. C. Oza as Amicus-curiae. I have heard Mr. S. C. Oza and Mr. S. K. Mathur learned P. P. for the State and have gone through the judgment as also the record of the case. The State has not filed any appeal against the acquittal of the accused u/sec. 302 IPC. Mr. Oza does not challenge the conviction of the accused appellant u/sec. 307 IPC. In this case, P. W. 1 Nand Ram Megwal and P. W. 2 Raja Ram who were present near the site of the occurrence and who happen to be the grant father and brother of the injured have stated that when they were watering the field, Krishna came to them in an injured condition, his throat was cut and he was professedly bleeding. When asked, he spoke in a very slow and disturbed halting voice that he has been cut by accused Dari and later when Nandram Megwal went to see Rajaram Jat; he was found dead on account of the injuries received by him. Thus, there is a clear out statement of these two witnesses to whom the injured himself has stated that he was cut by this accused. The injured P. W. 9 lost his voice and was not in a position to speak and, therefore, his statement was taken by signs u/sec. 119 of the Evidence Act and he too has stated that the accused Dari present in the Court has inflicted this injury on his neck by Kassi (spade ). He has further stated that Rajaram was sleeping by his side and he was found dead when he woke up after receiving the injuries. He has further stated that he could speak very well before receiving this injury but after receipt of the injury, he has lost his voice. Even he cannot take his meals. He saw the accused, when woke up and at that time he was armed with a Kassi (spade), He has also stated that Rajaram Jat was also killed by the accused with this very Kassi (spade) but he has not seen the actual assault. It is, because of this that the learned lower Court has acquitted the accused of the offence u/sec. 302 IPC. I do not want to express any opinion about the acquittal of the accused from the offence u/sec. 302 IPC because no cross appeal has been filed by the State. Mr. Oza has however submitted that some leniency may be shown to the appellant so far as sentence is concerned. In the peculiar facts & circumstances of this case, I am not inclined to take any lenient view so far as sentence is concerned. It is true that the accused has been acquitted of the offence u/sec. 302 IPC by giving him benefit of doubt but the circumstances of this case show the gravity of the offence, committed by the accused and, therefore, it is one of those rare cases in which the Courts feel highly reluctant to take a lenient view.
(3.) THE result is that I find no force in this appeal and it is hereby dis-missed. .;