JUDGMENT 1. - Hanuman, Ramswaroop @ Birdhichand, Banna Lal and Khushiram, the appellants herein, were convicted and sentenced by the learned Additional Sessions Judge (Fast Track) Tonk. Learned Judge vide judgment dated June 29, 2002 convicted and sentenced them as under:Hanuman: U/s. 304 Part I IPC: To suffer imprisonment for life and fine of Rs. 100/- in default to further suffer imprisonment for six months. Birdhichand @ Ramswaroop, Banna Lal Bairwa & Khushiram U/s. 304 Part I read with 34 IPC: Each to suffer rigorous imprisonment for ten years and fine of Rs. 100/-, in default to further suffer imprisonment for six months. Khushiram: U/s. 324 IPC: To suffer rigorous imprisonment for one year and fine of Rs. 100/- in default to further suffer simple imprisonment for one month. 2. The prosecution case as unfolded during trial is that on January 12, 2001 the informant Shiv Raj Singh (Pw. 5) submitted a written report (Ex.P-4) at Police Station Mehandwas with the averments that on the said day around 6 PM while his nephews Ishwar Singh and Rajendra Singh were going from Against the judgment dated 29.6.2002 in Sessions Case No. 29/2001 passed by Shri Baldevram Chaudhary, RHJS, Additional Sessions Judge (Fast Track) Tonk. Tonk to Palda they were belaboured on the way by the accused Birdhichand, Hanuman, Khushiram and Banna. Birdhichand inflicted dagger-blow on the chest of Ishwar Singh as a result of which he became unconscious and died. Rajendra Singh also sustained injuries. On that report a case under section 302, 307 and 34 IPC was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Tonk. Charges under sections 302' and 34 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 18 witnesses. In the explanation under Section 313 Cr.PC., the appellants claimed innocence. Appellant Hanuman stated that at the time of incident he was not present and had gone to Jaipur. On account of enmity he was falsely implicated. Appellants Khushiram and Ramswaroop stated that a number of complainant party viz. Rajendra, Govind Rana, Gopi, Banna Khan, Vinod, Ishwar Singh, Rafiq, Ghasi, Kalyan, Nand Singh. and Ummed Ram came to their shop and inflicted injuries on their person. On account of enmity he was falsely implicated. Appellants Khushiram and Ramswaroop stated that a number of complainant party viz. Rajendra, Govind Rana, Gopi, Banna Khan, Vinod, Ishwar Singh, Rafiq, Ghasi, Kalyan, Nand Singh. and Ummed Ram came to their shop and inflicted injuries on their person. Appellant Banna Lal stated that since he took injured Ramswaroop and Khushi Ram to the hospital, he was implicated in the case. Four witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated hereinabove. 3. Death of deceased Ishwar Singh was indisputably homicidal in nature. As per post-mortem report (Ex.P-12) he received following ante mortem injuries: 1. Lacerated wound 11/2" x 1/2" x bone deep anterior parietal region of scalp. 2. Stab wound 1" x 1i2" thoracic cavity deep margin clean cut oblique upper end acute lower end on Lt. chest. In the opinion of Dr. S.P. Kothari (Pw. 10) the cause of death was hemorrhagic shock due to excessive bleeding and stab wound of heart. Rajendra Singh (Pw. 1) vide injury report (Ex.P-2) received one Stab wound 1 1/4" x 1/2 at Rt. lumber part of chest. 4. At this juncture injuries sustained by the appellant Ramswaroop and Khushi Ram may also be noticed. Ramswaroop vide injury report (Ex.D-7) received following injuries: 1. Lacerated wound 41/2 x 1/2 bone deep Lt. fronto parietal region of scalp 2" Lt. to mid line. 2. Lacerated wound 2" x 1/2" x bone deep At. Parietal region. 3. Lacerated wound 2" x 1/2" x muscle deep Lt. Forehead. 4. Swelling 6" x 5" At. Shoulder. 5. Intrusion 4" x 3" Lt. Ankle & Dorsum. 6. Lacerated wound with swelling 1/2" x 1/2" long ⅓rd leg simple.. Injuries received by Khushi Ram vide injury report (Ex.D-9) were as under: 1. Lacerated wound 3" x 1/2" x bone deep Rt. parietal region of scalp. 2. Abrasion each 2" linear, 1" linear on neck centre lower half. 3. Bruise 3" x 2" forearm (Rt.) upper half & elbow. 4. Bruise 2" x 2" abrasion hand At. Hand. 5. Abrasion 1/2" x 1/2" in Rt. Forearm dorsum lower half. 6. Bruise 1" x 1" in Rt. Thigh upper part. 7. Bruise 3" x 2" on dorsum & palmer thumb side of hand on back of chest (Rt.) upper half. 8. C/o pain shoulder (R). 5. 4. Bruise 2" x 2" abrasion hand At. Hand. 5. Abrasion 1/2" x 1/2" in Rt. Forearm dorsum lower half. 6. Bruise 1" x 1" in Rt. Thigh upper part. 7. Bruise 3" x 2" on dorsum & palmer thumb side of hand on back of chest (Rt.) upper half. 8. C/o pain shoulder (R). 5. Learned counsel for the appellant made following submissions: (i) The origin and genesis of the occurrence has been withheld by the prosecution. (ii) In the FIR it was alleged that Birdhi Chand stabbed Ishwar Singh, whereas at the trial Rajendra Singh (Pw. 1) deposed that it was Hanuman who inflicted dagger blow on the chest of Ishwar Singh. (iii) Injuries sustained by accused Ram Swaroop and Khushi Ram have not been explained by the prosecution. (iv) The incident occurred in front of the shop of Ram Swaroop @ Birdhi Chand and the complainant party was the aggressor. (v) Learned trial Judge did not properly appreciate the material on record and committed error in convicting and sentencing the appellant. 6. Per contra, learned Public Prosecutor and learned counsel for the complainant supported the finding of the learned trial court and contended that informant Shiv Raj Singh (Pw. 5) was not an eye witness, therefore whatever the injured eye witness Rajendra Singh (Pw. 1) deposed it was considered by the learned trial court. 7. Having carefully scanned the material on record we find that Rajendra Singh (Pw. 1) is the star witness of the prosecution. In his deposition Rajendra Singh stated that after Birdhi Chand slapped him he and his brother Ishwar Singh (deceased) went to meet Birdhi Chand to express their displeasure. Birdhi Chand, Hanuman, Khushi Ram and Banna then hurled abuses at them. Khushi Ram inflicted knife blow just below his (Rajendra Singh) right ribs. When Ishwar Singh intervened, Birdhi Chand and Banna caught hold of him and Hanuman inflicted blows with knife on his head and chest as a result of which Ishwar Singh fell down. While Ishwar Singh was taken to the hospital in the jeep, he died on the way. In the cross examination Rajendra Singh admitted that he alongwith Ishwar Singh had gone to the meat shop of Birdhi Chand. He denied this suggestion that nine other persons had also accompanied them and they gave beating to Birdhi Chand and Khushi Ram. 8. While Ishwar Singh was taken to the hospital in the jeep, he died on the way. In the cross examination Rajendra Singh admitted that he alongwith Ishwar Singh had gone to the meat shop of Birdhi Chand. He denied this suggestion that nine other persons had also accompanied them and they gave beating to Birdhi Chand and Khushi Ram. 8. Learned trial court after having considered the testimony of Rajendra Singh observed that Hanuman inflicted injuries on the person of Ishwar Singh, whereas Khushi Ram gave blow with knife on the chest of Rajendra Singh. Hanuman was however not found guilty under section 302 IPC because in the opinion of learned trial court he had right to private defence. So far as the finding of conviction qua the appellant Hanuman is concerned, we find no infirmity. It is established from the record that Ishwar Singh and Rajendra Singh alongwith eight other persons had gone to the meat shop of Birdhi Chand and as per site plan (Ex.P-5) the incident occurred at the meat shop of Birdhi Chand. Blood was found near the meat shop. Khushi Ram and Ram Swaroop @ Birdhi Chand sustained severe injuries on the head and other parts of body and these injuries have not been explained by the' prosecution. In our opinion Ram Swaroop, Birdhi Chand and Khushi Ram also had right of private defence. 9. It is trite that persons acting in exercise of their right of private defence would be doing a perfectly legitimate act and an assembly of such persons is not an unlawful assembly. If any one of them exceeds his right of private defence and gives a fatal blow, he alone would be responsible for the consequences and the others could not be held vicariously liable for his act under section 304 Part I IPC. Neither Section 149 nor Section 34 IPC will be attracted in such a case. 10. We are, therefore, of the opinion that conviction of appellant Birdhi Chand @ Ram Swaroop, Khushi Ram and Banna Lal under section 304 Part I read with 34 IPC and under section 324 IPC was bad in law. Neither Section 149 nor Section 34 IPC will be attracted in such a case. 10. We are, therefore, of the opinion that conviction of appellant Birdhi Chand @ Ram Swaroop, Khushi Ram and Banna Lal under section 304 Part I read with 34 IPC and under section 324 IPC was bad in law. In so far as the sentence of life imprisonment awarded to appellant Hanuman for the offence under section 304 Part I IPC, we are of the view that in the facts and circumstances of the case 10 years rigorous imprisonment and fine would be adequate sentence. 11. For these reasons, we dispose of the instant appeal in the following terms: (i) We allow the appeal of appellants Ramswaroop @ Birdhichand, Banna Lal and Khushiram and acquit them of the charge under section 304 Part I read with 34 IPC. We also acquit appellant Khushiram of the charge under section 324 IPC. Appellants Ramswaroop @ Birdhichand, Banna Lal and Khushiram are on bail. They need not surrender and their bail bonds stand discharged. (ii) We partly allow the appeal of appellant Hanuman. While maintaining his conviction under Section 304 Part I IPC, we, in the facts and circumstances of the case, sentence him to suffer rigorous imprisonment for a period of 10 years and fine of Rs. 1,000/-, in default to further suffer rigorous imprisonment for six months. (iii) The impugned judgment of learned trial Judge stands modified as indicated above. Appeal of B1, B2 and K allowed in Full - Appeal of H Partly allowed by Reducing sentence. *******