The main legal point established in the judgment is the application of Exception-4 of Section 300 of IPC and the consideration of the right to private defence in determining the appropriate conviction for the accused appellants.

JUDGMENT :

(Pankaj Bhandari, J.)

1. The appellants have preferred the instant appeal aggrieved by the impugned judgment and order dated 12.12.2015 passed by the Additional Sessions Judge No.3, Kota, whereby the accused appellants have been convicted and sentenced for the offences as under:

(i) For the offence under Section 302/34 IPC – Life imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo 6 months simple imprisonment.

(ii) For the offence under Section 323/34 IPC – 1 year simple imprisonment and a fine of Rs.1,000/- and in default of payment of fine, to further undergo 1 month simple imprisonment.

(iii) For the offence under Section 341 IPC – 1 month simple imprisonment and a fine of Rs.500/- and in default of payment of fine, to further undergo 15 days simple imprisonment.

All the sentences were directed to run concurrently.

2. Since after filing of the appeal, accused appellant No.2 – Sikandar has expired and the appeal stands abated against him, the present appeal is now being decided only to the extent of accused appellant Nos.1 and 3 – Mangilal and Jitendra @ Jeetu.

3. Succinctly stated the facts of the case are that on 11.06.2012, complainant - Sanjay (PW-1) filed a complaint/parchabayan (Exhibit-P1) in Mahaveer Nagar Police Station stating therein that on 11.06.2012 at around 9:45 pm, when he and his brother Dinesh (deceased) were sitting outside their house, accused- Sikandar came towards him and started arguing with him and also threatened him. Thereafter, father of accused- Sikandar, Mangilal also came at the scene with a gandasa and hit him on his head. He then began to bleed and entered his home to retrieve a stick, in order to defend himself. Thereafter, Mangilal used gandasa to hit his brother Dinesh on the head. Furthermore, two brothers of the accused Sikandar, namely, Jitendra and Chandan also arrived at the scene. Jitendra was holding a water pipe, while Chandan had an iron rod. They also inflicted injuries to deceased-Dinesh on his head. When he came outside the house, Jitendra attacked him with a pipe on his left hand wrist. Sikandar also commanded to beat them. Govind (PW-2), who stepped in between to save him and his brother, also got injured. Rekha (PW- 5), his wife also suffered injuries, when she tried to save her husband and the deceased. Dinesh was shifted to the hospital, where he expired on 12.06.2012. The enmity is said to be due to a dispute, which took place with him on an accident, which had happened a few days earlier. As per the prosecution, few days before the incident, Chandan and Ratan Lal (PW-10) were fighting and the complainant stepped in between to save Ratan Lal (PW- 10) from the accused. The accused side came to take revenge of the said incident.

4. On the basis of the said parchabayan, on 12.06.2012 the police registered an FIR bearing No.520/2012 for the offence under Sections 341, 323, 307, 34 of IPC and after due investigation, the police filed charge-sheet against all the accused appellants including Chandan. The case of accused-Chandan was transferred to Juvenile Justice Court treating him as a juvenile. The case of other accused was committed to the Court of Sessions for trial. Trial Court framed the charges for offences under Sections 302 or 302/34, 323 or 323/34 and 341 of IPC. The accused denied the charges and sought trial, upon which, the prosecution examined as many as 17 witnesses & 2 additional witnesses and exhibited 33 documents. Explanation of the accused appellants was recorded under Section 313 Cr.P.C., wherein they denied the charges levelled against them. In defence, 7 documents were exhibited. The learned Trial Court, after hearing the arguments of both the parties, has convicted the accused appellants as stated hereinabove. Since accused appellant – Sikandar has expired, we are only mentioning with regard to the sentence awarded to accused-Mangilal and Jitendra.

5. It is contended by learned counsel appearing for the accused a