A.M. Kapadia, J. - (1.) Challenge in this appeal filed under Sec.374 of the Code of Criminal Procedure ('the Code', for short) is to the correctness of the judgment and order dated 28.02.1986 rendered in Sessions Case No.63 of 1983 by the learned Sessions Judge, Merta, by which appellant No.1 Banwarilal S/o. Shri Rughnath, original accused No.1 ('A-1', for short) has been convicted for commission of the offence under Sec.302 of the Indian Penal Code ('IPC', for short) and has been sentenced to imprisonment for life and fine of Rs.500/-, in default of payment of fine to undergo further simple imprisonment of one year whereas appellant No.2 to 6 i.e. Kailash, Ramdeo, Rughnath Ram, Kamla and Bholki original accused No.2 to 6 (A-2 to A-6) have been convicted for the offence under Section 148, 323/149 and 325/149 IPC and they have been extended benefit of the Probation of Offenders Act and each one of them has been directed to pay by way of compensation Rs.400 to Panchu Ram and Rs.200 to Smt. Goran within 25 days.
(2.) The prosecution case, as disclosed from the FIR and unfolded during trial is as under: 2.1 On 12.10.1983, Gokalram (PW1) lodged a verbal report at Police Station, Thawla, stating inter-alia that the New Bera of Ahirs is situated at the outskirts of Nimbola in Kankad, which is divided into seven parts and the water is taken from the well turn by turn. It was alleged that on 12.10.1983 the turn of taking water from the well was of his uncle Panchuram but Rugnath A-4 told that his crops of 'Mirchi' and 'Shakarkand' urgently required water and on this there was altercation between them. It was further alleged that at about 7 O'clock in the evening when he, Gordhanram and Panchuram were smoking sitting near the well, at that time Jawara came there from his field and thereafter came accused Kailash, Ramdev, Banwari, Rugnathram, Bholki, Kamla and Gyarsi armed with lathies and kassis with common intention and started quarelling. Banwari gave a blow on the head of Jawara from the reverse side of Kassi due to which Jawara fell down and the other accused also gave blows with lathis, then on hearing hue & cry; he, Gordhanram, Chhittar, Nathu, Bashir, Ramlal, Smt. Gora and Panchuram rushed and intervened to save, then the accused also gave blows on them and they also received injuries. Jawara was lying unconscious on the earth and the accused assuming him having died, fled away. Thereafter Jawara was taken to the hospital on camel cart but Jawara died on the way so they brought the dead body of Jawara to the Police Station. 2.2 On the basis of aforesaid report, police registered a case vide FIR No.75/83 at Police Station Thawara against accused persons for commission of the offence under Sec.302 IPC and started investigation. 2.3 On completion of investigation, accused were chargesheeted in the Court of Additional Chief Judicial Magistrate, Merta, who committed the case to the Court of Sessions, Merta as the offence punishable under Sec.302 IPC is exclusively triable by the Court of Sessions. 2.4 The learned Sessions Judge ('trial Court', for short) framed charges against accused A-1 for commission of offence punishable under Sec.302 IPC and against rest of the accused for offence under Secs. 148, 323/149 and 325/149 IPC 2.5 The charges were read over and explained to the accused persons, who pleaded not guilty to the charges and claimed to be tried, therefore, they were put to trial. 2.6 To prove the culpability of the accused, the prosecution examined as many as 20 witnesses and relied upon their oral testimony and also produced number of documents which were relied upon during the course of trial which were exhibited and read in evidence. 2.7 The trial Court, thereafter, recorded statements of accused under Sec.313 of the Code, wherein also accused pleaded not guilty and denied the case of prosecution in toto and stated that a false case has been filed against them. Accused A-1 in his statement stated that in the evening he was going to his home from the field and in the way near the houses of Jawara, Pancha and Bhera Jawara and Bhera gave three blows on his head with lathis and his clothes were stained with blood but pushing Jawara he ran away and that he did not scuffle with them. The accused persons got examined DW1 Jetha Ram DW2 Shankerlal and DW3 Bhura Ram in their defence. 2.8 On appreciation, analysis and scrutiny of the evidence on record, trial Court disbelieved the theory of self defence put up by accused A-1 and came to the conclusion that homicidal death of the deceased Jawara has been proved and the accused A-1 is the author of the fatal injury caused to the deceased by inflicting blow from reverse side of Kassi on the head of deceased Jawara, who on receiving the injury fell down and later on expired. On the aforesaid finding, the trial Court convicted accused A-1 for the offence under Section 302 IPC and sentenced him to imprisonment for life and fine of Rs.500/- whereas the remaining accused i.e. A-2 to A-6 were convicted for the offence under Section 148, 323/149 and 325/149 IPC for causing injuries to Panchu and Gordhan and they have been extended benefit of the Probation of Offenders Act and each one of them have been directed to pay Rs.400 to Panchu Ram and Rs.200 to Smt. Goran by way of compensation, which has given rise to the instant appeal by the accused persons.
(3.) Mr. Vineet Jain, learned counsel for the accused submitted that it was a case of free fight in connection with the turn of water between accused persons and complainant party, who are near relatives and it is also mentioned in the FIR that an altercation took place between Rughnath and Panchuram relating to the turn of water and thereafter scuffle started between both the parties. The complainant party persons were the assailants and in self defence accused A-1 gave single blow to deceased Jawara, however, the trial Court disbelieved the theory of self defence and erroneously reached to the conclusion that the accused were the assailants and committed the offence. It is stated that the trial Court was misdirected in reaching to the said conclusion which has resulted into miscarriage of justice, therefore, according to him, the judgment and order of conviction recorded against the accused deserves to be quashed and set aside by allowing this appeal and thereby acquitting the accused of the offence with which they were charged. Alternatively, it is submitted that so far as homicidal death of Jawara is concerned, there is no dispute and if this Court comes to the conclusion that accused A-1 is the author of the fatal injury caused to the deceased then also prior to causing of the injury there was altercation in connection with the turn of water and in a sudden fight accused A-1 gave single blow to deceased Jawara, therefore, it is not a case of murder punishable under Sec.302 IPC but is a case of culpable homicide not amounting to murder punishable under Sec.304 Part II IPC. He also submits that the incident has taken place in the year 1983 and accused A-1 has remained in Jail for round about three years, therefore, custodial sentence suffered by accused A-1 may be treated as substantive sentence and he may be set at liberty. So far as remaining accused persons are concerned, according to him, there is no evidence against them, therefore, they may be acquitted of the offence with which they were charged.;