The benefit of doubt arising from the imbalance in establishing the offence led to the conviction being replaced with a lesser offence, and the sentence was reduced based on the circumstances and precedent laws.

JUDGMENT

Pushpendra Singh Bhati, J. - In the wake of instant surge in COVID - 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This Criminal Appeal has been preferred under Section 374(2) Cr.P.C. praying that the judgment dated 15.09.1990 passed by the learned Sessions Court, Nagaur, in Sessions Case No. 12/1989, whereby the appellants were convicted under Section 304 Part II I.P.C. read with Section 34 I.P.C. and were sentenced to undergo 7 years R.I. each, be quashed and set aside.

3. The matter pertains to an incident that had occurred in the year 1988 and the present appeal has been pending since the year 1990.

4. Brief facts of this case, as placed before this Court by learned counsel for the appellants, are that at Village Khatoda, District Nagaur, at Khasra No. 215, of which, as per the revenue records, half of the fields/land in question belonged to Mota Ram, Jetha Ram, Lumba Ram @ Poona Ram, who are real brothers, while the other half belonged to Mst. Sherudi, and that Jetha Ram had a Dhani constructed on his part of the land; on 14.12.1988, Jetha Ram, his children Bhinya Ram and Rami were demarcating the boundary of his part of land, and at that time, his brother Lumba Ram's sons, namely, Poona Ram and Doongar Ram, came there and did not allow them to do so, as a result of which, a fight broke out between them. At which point, Poona Ram struck Jetha Ram's head, and Jetha Ram fell on the ground, and Doongar Ram also inflicted blows on Jetha Ram, consequent whereon, Jetha Ram succumbed to the injuries and died. And that, due to the commotion caused by Jetha Ram's children, neighbours in the village rushed to the scene, whereupon Doongar Ram and Poona Ram fled from the scene.

4.1. The incident was thereafter reported and an F.I.R. was lodged by Bhinya Ram at Police Station, Pachodi, Dist. Nagaur, and the concerned S.H.O. began an investigation; the post mortem was conducted on the corpse of the deceased victim by the medical officer. And that, Poona Ram and Doongar Ram were arrested on 15.12.1988 by the police authorities.

5. Learned counsel for the appellants submits that the learned Court below failed to take into consideration the fact that the deceased victim and his children were in fact trespassing on the land in question, and that the factum of their ownership and possession over the field/land in question was not proven.

5.1. Learned counsel further submits that there was a long standing feud between the family members with respect to the partition of the land in question. And that, except other family members, the prosecution does not have any independent witness to corroborate version in question, and that therefore, the version of the prosecution cannot be taken at its face value.

5.2. Learned counsel also submits that there are gross discrepancies and glaring contradictions in the statements of the prosecution witnesses', given to the police authorities and those given before the Court.

5.3. Learned counsel further submits that there was a single injury on the head of the deceased victim, and that it has in fact been attributed to both the accused appellants, Poona Ram and Doongar Ram, which is not plausible. And that, in such a case, the benefit of doubt must be given to the accused.

5.4. Learned counsel also submits that the conviction order for the offence under Section 304 Part II I.P.C, therefore, cannot be passed against two accused persons, and the impugned order is therefore, bad in the eye of law.

5.5. Learned counsel further submits that even if the version of the prosecution is to be believed, then also, no case beyond Section 325 I.P.C. can be made out against the appellants.

5.6. Learned counsel for the appellants also submits that this Hon'ble Court, vide its order dated 13.11.1990 passed in S.B. Criminal Misc. Bail Application 343/1990, suspended the sentence awarded to the appell