Dwarks Prasad, J. - (1.)This appeal has been preferred by Toliya against the judgment dated April 9, 1979 passed by the learned Sessions Judge, Banswara, by which the appellant Toliya was convicted for an offence under Sec. 302 Penal Code for committing the murder of Rakma and sentenced to imprisonment for life and a fine of Rs. 50.00, in default of payment of zinc to undergo rigorous imprisonment for a period of one month.
(2.)The facts giving rise to this appeal are that on the intervening night between Oct. 9, and 10, 1978, a Jagran' took place at the temple of 'Gwalmata' situated on the magra of Amravi near village Singpura. The Jagran' was Over at about 4 A.M. and thereafter the persons who participated in the Jagran' lay down on the ground to take rest and some of them went to sleep. The appellant Toliya, deceased Rakma, PW 4 Punja, PW 5 Maliya and PW 6 Homla and PW 7 Chhagan had also taken part in the 'Jagran'. Some time latter Toliya went away for making water and while returning he brought a heavy stone which he gave a blow on the head of Rakma. Toliya is alleged to have stated at that time that Rakma was his enemy because he had killed his father and Toliya ran away after throwing the stone towards Rakma. Rakma died on the spot as a result of the head injury caused to him on account of the throwing of the stone by Toliya.
(3.)A First Information Report about this occurrence was lodged by Punja at Police Station Banswara at about 10 A.M. on Oct. 10, 1978, on the basis of which a case under Sec. 302 Penal Code was registered against Toliya. After the usual investigation, a challan was filed in the court of Chief Judicial Magistrate, Banswara, who committed the accused Toliya to the court of Sessions Judge, Banswara for trial in respect of an offence under Sec. 302 IPC. The learned Sessions Judge tried the case against the accused Toliya and on the basis of the evidence led before him, convicted the accused Toliya for the offence under Sec. 302 Penal Code and sentenced him as stated above.