Jaliya and Others vs State of Rajasthan

K.S. Lodha, J.—This matter comes upon the 4th bail application of appellant Jaliya. The application was dismissed by this court on 3-8 1987 and it was directed that the appeal shall be heard on 10-8-1987. How ever it could not be possible to hear the appeal till now and, therefore, this 4th bail application has been proved.

Learned Counsel for the appellants submits that instead of hearing the bail application, the appeal itself may be disposed of He further submits that he does not press the appeal, so far as appellants No. 2 and 3 Gyana Ram and Bahdar, are concerned and so far as appellant Jaliya is concerned, his only contention is that the sentence awarded to him u/s 304, Part-II. IPC is excessive and should be reduced. The sentence awarded is 7 years rigorous imprisonment to appellant Jaliya, according to him, has already undergone more than 3-1/2 years rigorous imprisonment. He was also convicted u/s 324, IPC and was sentenced to two years'' RI on two counts, and all sentences were made concurrent.

Having regard to all the facts and circumstances, to which will presently advert, I am inclined to accept the contention put forth by the learned Counsel for the appellants, and learned Public Prosecutor also does not have any serious objection to that.

From the prosecution story, it appears that on 12 1-1983, one Mohan was grazing his sheep and goats in jungle outside the village, where some Bawaris came to have a game of shooting. Mohan asked them not to kill any animal, where upon, those Bawaris gave beating to Mohan. Mohan reported the matter to the villagers and also to his father, who collected inhabitants of the village and on the next day, a large number of persons, from the side of the complainant, went to the Deras of Bawaris. The men folk of the Bawaris was out and only ladies were there in the ''Dera'' There upon, the complainant-party took away, a camel, a she-camel and a young camel from the camp of the Bawaris and told the ladies that when Bawaris return to the camp they may be sent to the complainant-party when camel etc. would be returned to them. When this party left back for their village and were on the way, some 10-11 Bawaris came there armed with guns and other arms, e.g. Farsi, Lathis, spear etc. It is alleged that on their approaching the complainant-party, they let camel, she camel etc. loose and wanted to talk to the Bawaris, who did not listen to them and attacked them. Fire was opened by one of the accused Gyana, which hit Laxminath near his knee. Some other persons also caused injuries to (he members of the complainant-party and so far as the present appellant Jaliya is concerned, it is alleged that Salia blow was inflicted by him which resulted into the death of Gorakhnath. He is also alleged to have caused simple injuries with Saila on the persons of Bherunath and Premnath. The Police put the challan against seven accused persons for offence under 302, 307, 148, 149, 324, 323, IPC. They were committed to the court of Sessions. The learned Sessions Judge acquitted all the accused persons from offence u/s 302, read with Section 149, IPC as also Section 307, read with Section 149, IPC. He, how ever, convicted appellant Jaliya u/s 304, Part- II and Section 324, IPC for causing death of Gorakhnath and further causing simple injuries with sharp-edged weapon on the persons of Premnath and Bherunath. He convicted accused Gyanaram and Bahdar for offence under Sections 324 and 325, IPC but granted them probation. Aggrieved of the conviction and sentences, the three appellants have filed this appeal.

As already stated above, now the learned Counsel for the appellant does not challenge the convictions of the three appellants and has not pressed the appeal so far as appellants Gyana Ram and Bahdar are concerned, but has only prayed for reduction of sentence of Jaliya u/s 304, Part-II, IPC.

From the narration of the incident'' given above, it clearly appears that it was the complainant-party who first went to the Dera of Bawaris and had removed camel, she camel and the young one from there in the absence of the men folk of Bawaris, and as soon as the Bawaris, to which community the appellants belong, came to know of this, highhanded act of the complainant party, they pursued them and tried to get the camel, she camel and young one released and it was in this affray that injuries were caused to the members of the complainant-party and unfortunately one of them had received a Saila blow on his chest from accused Jaliya In these circumstances, the learned Sessions Judge, Churu himself has not convicted the appellant u/s 302, IPC and has convicted him only u/s 304, Part-II, IPC. The accused is a young person and had gone in pursuit of the complainant party along with his father Gyana Ram and other members of the Bawari in order to rescue the camel etc. which had been taken away in their absence. He must have been acting under the guidance and control of his father and other elderly members. He is alleged to have caused only one injury on the person of Gorkhnath; unfortunately, that proved fatal.

Locking to all these circumstances, I am of the opinion that the sentence of seven of years'' rigorous imprisonment awarded to appellant Jaliya is a little harsh and severe and deserves to be suitably reduced. Accused appellant Jaliya had been in custody from 5-2-1983 to 7-6-1983 during the course of trial and then again from 5-11-1986 till today during the pendency of this appeal and, thus, has served out about 3 years and 10 months'' sentence. I am of the opinion that this sentence would meet the ends of justice.

The result, therefore, is that the appeal filed by Gyana Ram and Bahdar is dismissed as not pressed. Jailay''s appeal is partly allowed and while maintaining his conviction u/s 304, Part-II, IPC the sentence awarded to him is reduced to that already undergone. His convictions u/s 324, IPC are also maintained and the sentences awarded, in that respect have already been made concurrent and must have been served out by now. He will, therefore, be released forthwith, if not required in any other case.