KANTA BHATNAGAR, J. - (1.) THIS appeal is directed against the judgment dated 27. 9-84 passed by the Addl. Sessions Judge, Nagaur, by which the three appellants Deepa Ram, Chutra Ram and Smt. Sukhi have been convicted u/s 302/34 I. P. C. and sentenced to imprisonment for life and a fine of Rs. 100/-, in default to undergo three months rigorous imprisonment each.
(2.) THE prosecution case is that on 13. 9. 83, Kumbha Ram deceased had gone in his field. Lichhman Ram informed him that the cattle of the accused had entered the field of Kumbha Ram. Upon this Kumbha Ram repremanded. Deepa Ram caused injuries to him with a stick. At this both of them entangled and in that scuffle Deepa Ram caused lathi injury to deceased Kumbha Ram. Lichhman Ram and his wife Smt. Sukhi, who were cutting bajra heads in their field nearby rushed to the rescue of Kumbha Ram. Chutra Ram inflected lathi blow, causing injury on the neck of Kumbha Ram. Chutra Ram took the sickle from the hand of his wife Smt. Sukhi and caused injuries to Kumbha Ram. Kumbha Ram fell down and succumbed to those injuries. Birda Ram is said to be an eye witness of the occurrence. He went to Lichhman Ram s/o Kumbha Ram and informed him about the incident. Lichhman Ram got report Ex. P10 scribed and produced it at police station Khinvsar. PW 12 Shanker Lal Investigating Officer registered a case and proceeded for investigation at the site. He prepared inspection memos. THE post-mortem examination of the dead body of Kumbha Ram was conducted by Dr. J. K. Jalan, PW 7. He prepared the post-mortem report Ex. P7. THE injuries on the appellant Deepa Ram were also examined by the same doctor. THE injury report is Ex. P8. Upon completion of necessary investigation, charge-sheet against the three appellants was filed in the court of the learned Chief Judl. Magistrate Nagaur. THE learned Magistrate committed the case to the court of Addl. Sessions Judge, Nagaur, THE learned Judge charge sheeted the appellants and recorded their plea. THE appellants denied the charges and claimed to be tried. To substantiate its case, prosecution examined 32 witnesses in all. In their statements recorded u/s 313 Cr. P. C, the appellants denied the allegation levelled against them. One defence witness Hukma Ram (DW 1) was examined. THE learned Judge placed reliance on the testimony of PW 6 Birda Ram the alleged eye witness, and recorded the judgement of conviction and passed the sentence as stated earlier. The learned counsel for the appellants does not dispute the incident. His submission, however, is that in the facts and circumstances of the case, the learned Addl. Sessions Judge has legally erred in holding the appellants guilty u/s 302/34 I. P. C. The learned counsel emphasised that the prosecution case solely rests on the statement of Birda Ram and that statement too is inconsistent in itself. According to the learned counsel even if the prosecution case as it appears from the statement of Birda Ram is taken to be correct, still right of private defence was available to all the three appellants. The learned counsel in the alternative argued that if Birda Ram's statement is taken to be true, still Deepa Ram alone may be held responsible for exceeding the right of private defence because of his using a sickle and causing injury at the neck of the deceased. At the very out set, it may be observed that the only eye witness to the occurrence is Birda Ram. The origin of the quarrel is not known. Birda Ram has stated that on hearing the cry of Deepa Ram for rescue, he ran towards that side and found Deepa Ram and Kumbha Ram scuffling. He has also stated that at that time, Kumbha Ram was having a stick in his hand and was giving a beating to Deepa Ram. In this view of the matter, there is force in the submission of the learned counsel for the appellants that it was deceased Kumbha Ram who might be the aggressor. The medical report Ex. , P. 8 proves five injuries sustained by Deepa Ram. According to Birda Ram, at that juncture when he had seen Deepa Ram giving a beating on hearing his cries, Lichhman Ram and his wife who were cutting bajri in the field nearby rushed to his rescue. According to the witness, it was at that time that the sickle in the hands of Chutra Ham was taken by Deepa Ram in order to save himself, he caused injury at the neck of the deceased and in the anxiety of rescuing Deepa Ram, Chutra Ram also caused injury with sickle and lathi on Kumbha Ram. There is only one fatal injury on the neck of Kumbha Ram. In the circumstances, in which Deepa Ram was placed, it was natural for him to give a beating to Kumbha Ram. However, he could avoid causing injury with sickle and that too on the neck. In such circumstances, even if the right of private defence of person was available to Deepa Ram, it may be said that he exceeded that right. His case, therefore, falls within ambit of s. 304 Part II, I. P. C. So far as Chutra Ram and Smt. Sukhi are concerned, it is evident that they did not cause any serious injury to Kumbha Ram. If a person sees his brother being given a beating, then in the natural course of events, he would rush to his rescue and may cause injury to that person. The case of Chutra Ram and Smt. Sukhi does not even fall within the purview of exceeding the right of private defence. We do not feel inclined to agree with the learned Public Prosecutor that there was any community of mind on the part of three appellants to cause any injury to Kumbha Ram. Deepa Ram was. already there. It was after Deepa Ram's sustaining injury that at his cries Chutra Ram and Smt. Sukhi had rushed to his rescue. In view of the above discussion, we are of the opinion that the case of Deepa Ram would fall u/s 304 Part II, I. P. C. and no offence is made out against the remaining two appellants, namely, Chutra Ram and Smt. Sukhi. Coining to the question of sentence to be awarded to Deepa Ram, we are of the opinion that the sentence for the period he had remained in custody so far i. e. from 14. 9. 83 the date of his arrest till today, would meet the ends of justice. Consequently, appeal of Chutra Ram and Smt. Sukhi is allowed. They are acquitted of the charges levelled against them. They are on bail. Their bail bonds stand discharged. The appeal of Deepa Ram is partly allowed. His conviction u/s 302/34 I. P. C. is altered to one u/s 304 Part II, I. P. C. The sentence awarded u/s 302/34 is set aside. He is instead sentenced to the period, he had remained in custody so far u/s 304 Part II, I. P. C. He is in jail. He shall be set at liberty forth with, if not required in any other case. . ;