State of Rajasthan Vs. Manoj Kumar

State of Rajasthan Vs. Manoj Kumar
[Criminal Appeal No. 885 of 2007]
State of Rajasthan Vs. Raju @ Raj Kumar & ANR.
[Criminal Appeal No. 1073 of 2007]
Dipak Misra, J.
The suit was filed on 14.06.2006 and the judgement was given by the High Court that the accused will be given 10 years of imprisonment and he will have to pay a fine of 500/- and if he is not able to pay the fine then the imprisonment will increase upto 6 months.This was a criminal appeal no.885 of 2007 with 1073 of 2007.According to the case the High Court of Judicature for Rajasthan, Jaipur Bench at Jaipur in D.B. Criminal Appeal No. 396 of 2000 and D.B. Criminal Appeal No. 1011 of 2003, wherein the High Court has partly allowed the appeal of Raju @ Rajkumar by converting his conviction under Section 302 IPC to one under Section 304 Part I of IPC and further confirming his conviction under Sections 25 and 27 of the Arms Act.Before giving the judgement many cases were also refferd and those cases were Munshi Ram and others v. Delhi Administration[(1968) 2 SCR 455] , Mohd. Ramzani v. State of Delhi[1980 Supp SCC 215], Bhanwar Singh and others v. State of Madhya Pradesh[(2008) 16 SCC 657] and Salim Zia v. State of Uttar Pradesh[(1979) 2 SCC 648].The case in brief was the brothers Mr.Aniruddh and his brothers went to their vacant plot situated in Lisadia ka Bas being apprehensive that that sons of Ram Niwas and Shanti Prasad would take possession of the plot. At that point of time sons of Ram Niwas and Shanti Prasad were present at the house of Phoolji Lisadiya situate adjacent to the plot. As per his version, they first abused him and thereafter opened fire as a result of which he had sustained a gun shot injury on the right side of his chest and his brother Ramesh and Umesh, had brought him to the hospital. On the basis of his statement the concerned police officer registered FIR No. 243 of 1998 for the offences punishable under sections 307 and 149 of IPC. However, after the death of Anirudh, the offence was converted to one under section 302 IPC and investigation commenced. During the course of investigation, Raju and Hemant were arrested and Manoj was declared as an absconder. A charge sheet was filed against Raju and Hemant for the offences under sections 302, 302/34 IPC and for offences under Section 3/25, 3/27 and 3/33 of the Arms Act and it became the subject matter of S.C. No. 34 of 1998. After Manoj was arrested, a charge sheet was submitted against him for the offence under Section 302/34 of IPC and he faced a separate trial in S.C. No. 8 of 2002. The facts in the present case, as we understand, are similar to the factual score in the aforesaid case because the right of private defence had only been exceeded by Rajkumar. In such a case, the guilt of each of the accused, who had exceeded the right of private defence, has to be dealt with separately. The matter would have been totally different, had the right of private defence did not exist at all or the accused persons had done any overt act. Thus, in our considered opinion, the constructive liability, as envisaged under Section 34 IPC, is not more