GARG, J. - (1.) THE above-named accused appellants have preferred this appeal against the judgment and order dated 8. 6. 1999 passed by the learned Additional Sessions Judge No. 2, Chittorgarh in Sessions Case No. 101/98 by which he convicted both the accused appellants u/s. 304 Part II/34 IPC and sentenced each of them to undergo five years Rigorous Imprisonment and a fine of Rs. 15, 000/-and in default of payment of fine, to further undergo one year Simple Imprisonment.
(2.) THE facts giving rise to this appeal in short are as follows:- On 25. 1. 1997 at about 5. 30 PM, PW2 Narain Singh lodged an oral report before PW14 Heeralal, S. H. O. , Police Station Bijaypur District Chittorgarh stating inter-alia that when he was working at about 2. 30 PM outside the Khala, then Bheel women and men belonging to Rajpuria came there and infront of them, accused Lalu was going and at that time he was under the superficial control of divine power and after about half hour, PW 7 Udda Bheel, who is also resident of Rawla, came running and he was crying and he was also perplexed and at that time, accused Lalu and other persons, who were with him, went out from Rawla hurriedly. It is further stated that thereafter PW 2 Narain Singh asked PW 7 Udda Bheel what was the matter, then he told that alongwith Lalu accused, his brother another accused appellant Dalla was also there and some ladies and women were also there and when Lalu was under the superficial control of divine power, he was sitting at the Chabootra and at that time, Chimaniya (hereinafter referred to as the deceased), who also belongs to Rawla, came there showing divine power. THEn, accused appellant Lalu caughthold of deceased and another accused appellant Dalla also posed himself under the influence of divine power and caughthold of deceased. THEreafter, accused Lalu took the curtain made of nylon and put that curtain around the neck of deceased forcibly. THEn, PW 4 Bhupendra Singh also came there and accused Lalu posing himself under the superficial control of divine power went upto the pole alongwith his team. It is further stated in the report that PW 7 Udda Bheel further stated to PW 2 Narain Singh that deceased fell down on the Chabootra and died and after hearing the news that deceased has died, another persons PW 10 Mohan, PW6 Harikishan and PW 5 Beniram also came there. THEreafter, PW 7 Udda Bheel touched the hands of the deceased in order to verify what has happened to him and he found that deceased has already died and the dead body of the deceased was lying on the Chabootra. It has been further stated that deceased has been killed by accused Lalu and other members of his family by performing the act of superstition. This oral report was reduced in writing by PW 14 Heeralal and the same is Ex. P/3 and, thereafter, regular FIR No. 10/97 Ex. P/5 was chalked out by PW 14 Heeralal and started investigation. During investigation, post mortem of the dead body of the deceased was got conducted by PW 3 Dr. Ashok Maheshwari and the post mortem report is Ex. P/7. After usual investigation, the police submitted the challan against both the accused appellants as well as against Pema, Smt. Ratni and Smt. Ugmi in the Court of Magistrate and thereafter, the case was committed to the Court of Session. The learned Additional Sessions Judge No. 2 vide his order dated 23. 7. 1997 discharged accused Pema, Smt. Ratni and Smt. Ugmi of the offences levelled against them, but framed charges under sec. 302 IPC against accused appellant Lalu and u/s. 302/34 IPC against accused appellant Dalla. The charges were read over and explained to accused appellants, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 15 witnesses and 25 documents were got exhibited and thereafter, statements of accused appellants u/s. 313 Cr. P. C. were recorded and accused appellants produced one witness in defence and also exhibited one document in defence.
(3.) AFTER recording evidence and conclusion of trial, the learned Additional Sessions Judge No. 2, vide his judgment and order dated 8. 6. 1999 convicted both the accused appellants u/s. 304 Part II/34 IPC instead of Sec. 302 IPC and sentenced them in the manner as stated above. In convicting the accused appellants u/s. 304 Part II/34 IPC, the learned Additional Sessions Judge No. 2 has placed reliance on the statement of PW 7 Udda Bheel and the post mortem report of the deceased Ex. P/7 and some other evidence. Aggrieved from the said judgment and order dated 8. 6. 1999 passed by the learned Additional Sessions Judge No. 2, Chittorgarh, the present appeal has been filed by the accused appellants. In this appeal, the following submissions have been made by the learned counsel for the accused appellants. 1. That in this case FIR was lodged by PW 2 Narain Singh, who has been declared hostile and, therefore, the whole conviction of accused appellants, which is based on the statement of PW 7 Udda Bheel should not be sustained, in view of the fact that other witnesses including father of the deceased PW 15 Ratna have also been declared hostile. 2. That in the present case, motive of murder is absent and that is why, the learned Additional Sessions Judge No. 2 acquitted the accused appellant for the offence u/s. 302 IPC and convicted them u/s. 304 Part II/34 IPC. 3. Alternatively, it has been submitted that if the Court feels that the findings of conviction are correct one, then accused appellants be sentenced to the period already undergone by them and fine may also be reduced as they are not in a position to make payment of fine of Rs. 30, 000/ -. ;