BHAGWAN DAS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Bhagwandas and Netram are two brothers who along with Mt. Rameshwari, a daughter of the former, were tried by the Sessions Judge of Ganganagar for an offence under S. 302 of the Indian Penal Code but were acquitted. On appeal to the High Court of Rajasthan, the order of acquittal of Bhagwandas and Netram was reversed and they were convicted under S. 302 read with S. 34 and sentenced to transportation for life. The order as to Mt. Rameshwari was affirmed and she was acquitted. The convicted persons have obtained Special Leave to appeal under Art. 136 of the Constitution.

(2.) The appeal is founded on two grounds. (1) that there was no evidence against the appellants sufficient to warrant a conviction, and (2) that there were no compelling reasons for reversal of the judgment of acquittal.

(3.) According to the prosecution the canal after a temporary closure restarted flowing on 5th May 1953. And although it was not his turn of water the deceased Shivlal was allowed to take the water to irrigate his fields. On 6th May the canal was flowing to its full capacity and Shivlal was to take his turn of water which was of 6 hours duration from 8 a.m. to 2 p.m. but he watered his lands from 8 a.m. to 10-30 a.m. because the village diggi (pond) which was empty had to be filled up. Mirab Ram Karan P.W. 1 with the consent of Shivlal diverted the water for the purpose of filling up the diggi, promising him (Shivlal) to get him the rest of his turn of water, i.e. for 3 1/2 hours after the diggi had been filled up. The diggi was filled up by 1 p.m. on the 7th. Shivlal then wanted to divert the water into his field but Bhagwandas prevented him from doing so claiming the turn to be his. According to Ram Karan Mirab P.W. 1 the turn of Bhagwandas was after Surta whose turn was next to that of Shivlal.