IMPORTANT POINT
The court modified the conviction from Section 302 IPC to Section 304 Part II IPC due to insufficient evidence of intent to kill, emphasizing the trivial nature of the dispute.

JUDGMENT :

Pankaj Bhandari, J.

1. Accused-Appellants Banwarilal and Ramswaroop have preferred this appeal aggrieved by Judgment and Order dated 12.10.1990 passed by Addl. Sessions Judge No.1, Alwar in Sessions Case No.30/88, whereby accused-appellant Banwarli Lal has been convicted for offence under Section 302 IPC and has been sentenced to undergo imprisonment for life alongwith fine of Rs.2500/- and in non-default of fine, to further undergo rigorous imprisonment for six months and accused-appellant Ramswaroop has been convicted for offence under Section 323 IPC and sentenced to pay fine of Rs.500/- and in non-default of fine, to further undergo three months simple imprisonment. During pendency of the appeal, accused Ramswaroop has expired and now the appeal survives qua appellant- Banwarilal only.

2. Succinctly stated the facts of the case are that on 05.02.1988, Savitri Devi (mother of informant) and Laxmi Devi (wife of accused Banwarilal) had a quarrel pertaining to cleaning of nali. A written report was filed by PW-1 (Phool Chand, S/o deceased Kedarnath) on 06.02.1988 at 04:30 pm after a delay of 27 hours of the incident. The allegation in the FIR was that Savitri Devi was assaulted inside the house of appellant- Banwarilal and when this information was given by PW-7 (Khemchand), the family members went to the place of occurrence, where all the accused i.e. Ramswaroop, Banwarilal, Radhesyam, Shyoprasad, Satish and Laxmi Devi were assaulting Savitri Devi and when Kedarnath tried to help her, all accused started beating Kedarnath jointly. The informant and his younger brother were also beaten up by the accused. During the treatment, Kedarnath expired and the police registered case under Sections 147, 148, 149, 302, 452, 323 of IPC against Ramswaroop, Banwarilal, Radhesyam, Shyoprasad, Satish and Laxmi Devi and the charge-sheet was filed against all six accused and the Trial Court framed charges against all six accused. As many as 14 witnesses were examined on behalf of the prosecution. In defence, three witnesses were examined. Learned Trial Court convicted Ramswaroop for offence under Section 323 IPC, Banwarilal for offence under Section 302 IPC and Laxmi for offence under Section 323 IPC. Aggrieved by which, Banwarilal and Ramswaroop have preferred this appeal. Laxmi Devi was given benefit of probation and she did not prefer any appeal. Ramswaroop has expired and the appeal survives qua Banwarilal only.

3. It is contended by counsel for the accused-appellant Banwarilal that injured eye witnesses have stated untrue statement before the Court as far as implications of co-accused Radhesyam, Satish, Shyoram and Laxmi Devi with regard to the murder of deceased Kedarnath and in these circumstances when witnesses are found unreliable qua other accused persons, they should not have been believed by the Court qua present appellant Banwarilal. It is also contended that FIR was lodged after a lapse of 27 hours. In the FIR, no overt act is assigned to Banwarilal. There are general allegations that all the accused were beating the deceased. It is contended that no independent eye witness has been examined. All the witnesses are related to the deceased. It is also contended that Ramswaroop, father of appellant- Banwarilal received three injuries including a lacerated wound on scalp which was caused by some sharp weapon. Prosecution has miserably failed to explain the injuries received by Ramswaroop. It is also contended that as per the Court statement of PW-1 (Khemchand), all six accused persons assaulted the deceased and no specific overt act has been assigned by PW-1 (Khemchand) against accused Banwarilal. It is also contended that the eye witnesses have stated in the Court that accused Banwarilal gave two lathi blows to the deceased on the head, but as per statement of PW-5 (Dr. B.L. Ujjania), both head injuries were caused by two different weapons. Thus, the medical evidence does not corroborate the oral testimony of eye witnesses.

4.