JUDGMENT 1. - Appellant has been found guilty of commission of offence under Section 302 IPC and has been awarded life imprisonment with a fine of Rs. 1000/- by learned Additional Sessions Judge (Fast Track) No.1, Bhilwara vide judgment and order dated 6.12.2003. 2. As per the prosecution, PW-1 Suresh Chandra on 18.8.2002 at about 06:30 PM submitted a written report (Ex.P/1) with assertion that on the same day he and his brother were at "Uparla Kuan" and his father Magniram, mother Badam, aunty Bali and Premi were working at Kali Pati field. At about 4-5 PM Lalu and Kishan both sons of Dalchand came and without having any right of way they forcibly proceeded with their oxes and cows for grazing. On objection they threw stones and on making cry Magniram came at the spot to whom Lalu gave an axe blow on neck. Kishan at that time was saying not to leave Magniram alive. The injured Magniram then was taken to Gangapur Hospital by jeep. On receipt of the information aforesaid a case was registered for investigation under Sections 307, 323, 447 and 34 IPC. The injured was taken from Gangapur Hospital to Government Hospital, Bhilwara and then to Government Hospital, Udaipur where he died on 23.8.2002, thus, the charge of offence punishable under Section 302 IPC was also added. After usual investigation a charge sheet was filed and the trial court settled charges under Sections 447 and 302 IPC against accused Lalu and under Section 447 and 302/34 IPC against Kishanlal. 3. To support prosecution story 25 witnesses were examined from whom PW-1 Suresh, PW-2 Roshan PW-3 Badami, PW-4 Jeti, PW-8 Pyari and PW-10 Kishanlal were the eye witnesses. PW-9 Gaurav Bajaj was the Magistrate before whom dying declaration (Ex.P/11) was recorded on 18.8.2002. PW-19 Dr. Shantilal Jeengar proved his injury report Ex.P/23, as per that following was the injury occurred:- "1.Incised wound 7 x 5 x 1.3 cms length and depth - postero lateral aspect of left side of nape of the neck extending from post border of left sternoclesdo mastoid muscle to 7 cm in length." 4. PW-20 Dr. Akhilesh Sharma conducted autopsy and proved the postmortem report Ex.P/24, according to which the cause of death of Shri Magniram was shock as a result of neck injury which was sufficient to cause death in ordinary course of nature. 5. PW-20 Dr. Akhilesh Sharma conducted autopsy and proved the postmortem report Ex.P/24, according to which the cause of death of Shri Magniram was shock as a result of neck injury which was sufficient to cause death in ordinary course of nature. 5. The accused denied the allegations and tried to explain the incident with assertion that when they were passing through a public way sons of deceased objected their movement and threw stones. At that time Magniram came with a kassi and made an effort to give assault to them and only to save that Lalu put forth the axe ahead but that slipped and caused injury to Magniram. As per the accused persons, if they would have not stopped the effort made by Magniram to give assault then they would have suffered serious injury. They also stated that Magniram was in attacking mood and his tamper was highly surcharged at the time of occurrence. In defence DW-1 Kesar Lal and DW-2 Hajari were also examined. 6. The trial court after considering the evidence available on record acquitted Kishanlal from the charges alleged, however, held accused Lalu guilty and awarded the sentence. 7. The contention of counsel for the appellant while assailing the conviction recorded and sentence awarded are that:- (1)the trial court failed to appreciate that the accused had a right of private defence and in the present case he while utilising that did not exceeded the right aforesaid and as such the conviction for the charge of murder is bad; and (2)even by admitting whatever evidence available on record the case against the appellant does not travel beyond an offence under Section 304 part-II IPC. 8. While defending the conviction and sentence awarded learned Public Prosecutor urged that as per Section 105 of the Indian Evidence Act, 1872 the onus to prove exercise of right of private defence was upon the accused and he utterly failed to do so. It is also contended that the injury given by the accused appellant on a vital part of the deceased is self-speaking about the intention to kill and as such the offence of murder is also established. 9. We have considered the arguments advanced and also examined the record. 10. It is also contended that the injury given by the accused appellant on a vital part of the deceased is self-speaking about the intention to kill and as such the offence of murder is also established. 9. We have considered the arguments advanced and also examined the record. 10. So far as the argument relating to exercise of right of private defence is concerned, suffice to say that the accused appellant utterly failed to establish that deceased Magniram was having kassi with him and he was the aggressor. As a matter of fact no evidence in this regard is available on record except the explanation advanced by the accused persons. In such circumstances this argument fails. 11. The contention of counsel for the appellant that the act of the accused appellant is not at all a murder but culpable homicide not amounting to murder. We have examined entire evidence from this aspect too. 12. PW-1 Suresh, PW-2 Roshan, PW-3 Badami and PW-4 Jeti, who are eye witnesses, have stated that the accused persons were going through and at that time an objection was raised by Suresh and that resulted into the quarrel in which Magniram lost his life. Ex.P/11 is the dying declaration which was recorded in presence of PW-9 Gaurav Bajaj, Sub Divisional Magistrate. In this statement too Magniram simply stated that when he with his sons and other family members was working at the field, accused persons were passing through and on objection by Suresh the quarrel started during which a blow on neck was given by Lalu. It is also relevant to note that the documents Ex.P/7, Ex.P/8 and Ex.P/9 which were adequately proved refers that the part of land on which accused persons were going, is a way and there was some dispute/objections at the instance of deceased family in that regard. The trial court also considered this aspect in paras 14, 29 and 33 of its judgment. The trial court also considered this aspect in paras 14, 29 and 33 of its judgment. The contents of paras above deserve to be quoted:- 14- vfHk;kstu i{k ds vuqlkj vfHk;qDrx.k fd'ku yky vkSj ykyw jke tc cSy vkSj xk;sa pjkrs gq, tk jgs Fks rks mUgsa ih0M0 1 lqjs'k cSjok vkSj mldk HkkbZ ih0M0 2 jks'ku cSjok us jkLrs ls vkus ls jksdk D;ksafd ih0M0 1 vkSj ih0M0 2 dk ekuuk Fkk fd ftl jkLrs ls os cSy xk;sa yk jgs Fks og jkLrk muds vius LokfeRo dk FkkA ;g fufoZokn gS fd fookn jkLrs dks ysdj gqvkA izdj.k esa crk;k x;k eqvk;uk vkSj uD'kk ekSdk izn'kZ ih0 19 gS ftlesa ,Dl LFkku ?kVukLFky crk;k x;k gS tks yky L;kgh ls mfYyf[kr gSA ,Dl LFkku jkLrs ds :i esa n'kkZ;k x;k gSA ekdZ 39 ij vk0la0 474 n'kkZ;h x;h gS tgka e`rd exuh jke }kjk Tokj [kksnus dk mYys[k izn'kZ ih0 16 esa fd;k x;kA ?kVukLFky ,Dl LFkku ij n'kkZ;k x;k gS ogka ij [kwu ds /kCcs Hkh ik;s x;s gSA ?kVukLFky ds vklikl fofHkUu vkjft;kr n'kkZ;h x;h gS ftuds uEcj Hkh mfYyf[kr fd, x, gSA ih0M0 7 Hks: yky gYdk ds iVokjh us uD'kk V~sl izn'kZ ih0 7 tkjh fd;k gS ftlesa ?kVukLFky dk [kljk uEcj 451 mfYyf[kr gS vkSj izn'kZ ih0 8 esa [kljk uEcj 451 dks jkLrk n'kkZ;k x;k gSA ih0M0 7 Hks: yky jsxj us vius l'kiFk dFku dh izfr ijh{kk esa ;g mfYyf[kr fd;k gS fd ;g lgh gS fd vke lM+d tks [kk[kyk ds dkyk dk [ksM+k tkrh vkjkth uEcj 419 gS mRrj dh rjQ 451 ua0 dk vke jkLrk gSA ftlesa gksdj Mkyw vius dqvk l0 472 ij tkrk gSA ;s lgh gS fd bl jkLrs ds nksuksa rjQ ckM+ ds chp esa 10 fQV dk jkLrk gSA ;fn izn'kZ ih0 16 eqvk;uk ekSdk uD'kk ekSdk] uD'kk V~sl izn'kZ ih0 7 lEcaf/kr vkjft;kr dh [kljk fxjnkojh dh izfrfyfi izn'kZ ih0 8 vkSj gYds ds iVokjh ih0M0 7 Hks: yky jsxj }kjk izfrijh{kk eas fn;s x;s dFkuksa dk voyksdu fd;k tk, rks ;g rF; iznf'kZr gS fd [kk[kyk ls dkyk dk [ksM+k tkus okyh jksM+ vk0ua0 419 ls mRrj ,d jkLrk 451 uEcj dk gS ftlesa ls gksdj vfHk;qDrx.k vius dq, la[;k 472 ij vkrs tkrs gSA oLrqr% blh jkLrs ls vkus tkus dh ckr dks ysdj nksuksa gh i{k eas fookn mRiUu gqvkA vfHk;qDrx.k tgka vke jkLrk crkrs gS ogh Qfj;knh i{k ml jkLrsa dks viuk gksuk crk;k gS vkSj blh jkLrs ls vfHk;qDrx.k }kjk cSy vkSj xk;sa ys tkrs gq, ih0M0 1] ih0M0 2 dks euk fd;k gS vkSj blh ckr dks ysdj izdj.k dh ?kVuk mRiUu gqbZ gSA izLrqr izdj.k esa vfHk;qDrx.k dks jkLrs ij tkus dk vf/kdkj Fkk ;k ugha ;k og jkLrk fdldk Fkk bldk fofu'p; fufgr ugha gS ijUrq cuk;k x;k eqvk;uk ekSdk uD'kk ekSdk izn'kZ ih0 16 bl ckr dk |ksrd gS fd fdu ifjfLFkfr;ksa esa fdl LFkku ij fdl ckr dks ysdj nksuksa gh i{kksa ds chp ?kVuk ?kfVr gqbZA ;fn ;g eku Hkh fy;k tk, fd fooknLin LFkku ij ;k fookfnr jkLrs ij vfHk;qDrx.k ds tkus dk Hkh vf/kdkj Fkk rc Hkh ;g vf/kdkj fdlh O;fDr dh gR;k djus dks U;k;kuqer ugha Bgjk ldrk gSA 29- eSaus mij izFker% izdj.k esa cuk, x, eqvk;uk ekSdk uD'kk ekSdk izn'kZ ih0 16] mlds i'pkr~ e`rd ds e`Rpqdkfyd dFku izn'kZ ih0 11] fQj izR;{kn'khZ lk{khx.k ds lk{;] mlds i'pkr~ fpfdRlh; lk{;] fQj cjkenxh ds lEcU/k esa i=koyh ij miyC/k lk{; vkSj var esa fof/k foKku iz;ksx'kkyk ds izfrosnu ds lEcU/k esa foospu fd;k gSA vfHk;qDrx.k dh rjQ ls lk{; lQkbZ esa nks lk{khx.k Mh0M0 1 dslj yky vkSj Mh0M0 2 gtkdjh ijhf{kr gq, gS tks nksuksa bl ckr ds lk{kh gS fd ftl jkLrs dks ysdj nksuksa i{kksa esa fookn mRiUu gqvk ml jkLrs ij vfHk;qDrx.k dkQh yEcs le; ls vkrs tkrs jgs gS vkSj ml jkLrs ij mudk vf/kdkj gS rFkk vfHk;qDrx.k dk vius dq, vkSj dq, ij cus nsork ds LFkku ij tkus dk Hkh ;gh jkLrk gSA lk{; lQkbZ esa ijhf{kr nksuksa gh lk{khx.k ?kVukLFky ij mifLFkr ugha Fks vkSj fdl :i esa] dSls ?kVuk mRiUu gqbZ blds ckjs esa mudk dksbZ lk{; ugha gSaA ;gka ;g /;ku j[kuk gksxk fd bl vkijkf/kd fopkj.k esas bl U;k;ky; }kjk jkLrs dh vf/kdkfjrk ds lEcU/k esa dksbZ foospu ;k dksbZ fu"d"kZ fudkyk tkuk okafNr ugha gSA jkLrs ds lEcU/k esa cuk, x, eqvk;uk ekSdk uD'kk ekSdk gYdk ds iVokjh Hks: yky vkSj lk{khx.k ds dFku ds ifjizs{; esa bruk eSaus izkjEHk esa gh fu"d"kZ fudkyk gS fd ?kVukLFky ij jkLrk ekStwn Fkk rFkk jkLrs dh ckr dks ysdj gh nksuksa i{kksa esa fookn mRiUu gqvkA izdj.k esa vfHk;kstu i{k dh rjQ ls vk, lk{;ksa rF;ksa ls ;g Hkh fufoZokn vkSj iw.kZr;k LFkkfir gS fd izdj.k dh ?kVuk iwoZ fu;ksftr ugha FkhA jkLrs ij tc vfHk;qDrx.k vk jgs Fks vkSj viuh xk;ksa cSyksa dks pjk jgs Fks rks mudks e`rd ds iq= us euk fd;k vkSj mlh euk djus ls vfHk;qDrx.k us ih0M0 1 vkSj ih0M0 2 lqjs'k rFkk jks'ku ij iRFkj QSaduk 'kq: dj fn;kA dqN lk{khx.k us viuh izfrijh{kk eas ;g Hkh dFku fd;k gS fd nksuksa gh rjQ ls iRFkj Qasds tk jgs Fks vkSj bl lEHkkouk ls Hkh bUdkj ugha fd;k tk ldrkA 33- vfHk;qDrx.k us vius dFku /kkjk 313 n0iz0la0 vUrxZr tks dFku fd;k gS mlls vkSj vfHk;kstu i{k dh rjQ ls izLrqr lk{;ksa ewY;kadu ls vc bruk Li"V vkSj izekf.kr gks pqdk gS fd vfHk;qDrx.k ykyw jke }kjk dYgkM+h ls fd, x, okj ds dkj.k gh e`rd exuhjke dh e`R;q gqbZ FkhA ;g Hkh fufoZokfnr :i ls izekf.kr gS fd vfHk;qDrx.k ykyw jke vkSj fd'ku yky }kjk tks d`R; fd; x;s Fks d`R; iwoZ fu;ksftr ugha Fks vkSj ifjoknh i{k }kjk jkLrs dk mi;ksx djus ls euk djus ds dkj.k gh ?kVuk izkjEHk gqbZA vfHk;kstu i{k ds vuqlkj iRFkjckth vfHk;qDrx.k dj jgs Fks] tcfd vfHk;qDrx.k ds dFku /kkjk 313 n0iz0la0 ds vuqlkj iRFkjckth Qfj;knh i{k dj jgk FkkA vfHk;qDrx.k ds /kkjk 313 n0iz0la0 dFku ds vUrxZr vU; dksbZ lk{; i=koyh ij ugha gSA gkykafd vfHk;kstu i{k dh lk{kh ih0M0 4 tsrh us viuh izfrijh{kk esa ;gh dgk gS fd nksuksa rjQ ls iRFkjckth dh tk jgh FkhA vfHk;kstu i{k ds lk{;ksa ls ;g Hkh fufoZokfnr gS fd ih0M0 1 lqjs'k }kjk 'kksj djus ij mldk firk exuhjke ?kVukLFky ij vk;k Fkk tgka mls ykywjke us dqYgkM+h ls okj dj {kfrxzLr fd;kA 13. From reading of the contents referred above, it is apparent that the trial court was also of the view that the quarrel started due to use of path and in no way the action of the accused was pre-planned. The trial court in specific terms reached at the conclusion that the entire incident was spontaneous and due to objection made by Suresh for using the part of land as path. 14. True it is, a bodily injury sufficient to cause death was given by accused Lalu to Magniram but there is no evidence on record to establish the intention of causing death. As such the offence committed by the accused appellant does not travel beyond offence under Section 304 part-I IPC. 15. Accordingly, we allow this appeal in part. The conviction of accused appellant Lalu under Section 302 IPC is set aside. However, the accused is convicted for commission of an offence under Section 304 part-I IPC. The sentence awarded is also accordingly modified from life imprisonment with fine of Rs. 1000/- and in default of payment one month's rigorous imprisonment to the rigorous imprisonment of nine years with fine of Rs. 1000/- and in default of which to further undergo one month's simple imprisonment.Appeal partly allowed. *******