GUPTA, J. - (1.) By this appeal the appellant Goliya seeks to challenge the judgment of learned Sessions Judge, Pali dated 27.2.85, whereby he has- been convicted for offence under Section 302 IPC and sentenced to imprisonment for life, so also for the offence under Section 147, 324 and 323/149 IPC and sentenced to three months' simple imprisonment on each count. All substantive sentences have been made to run concurrently.
(2.) Five accused persons were tried by the learned Sessions Judge for the offences under Sections 302, 149 IPC etc., however, the appellant alone had been convicted for the offences under Section 302, while others had been convicted for the offences under Sections 147, 323, 324, 324/149 and 323/ 149 IPC, and have either been released on probation or have been sentenced to imprisonment for a period of three months. The State has not. filed any appeal against the acquittal of those accused persons for offence under Section 302 and at the same time, the other accused persons have also not filed any appeals against their conviction.
(3.) In the above background, the facts of the case are, that the message was received in the Police Chowki Babra that Bhanwar Lal Nai has died, thereupon SHO Sendara, P.W.11 Deen Mohd. went on the spot, and recorded the statement of Jasraj injured, being Ex.P/3, on 8.7.83 at 6.15 AM, wherein Jasraj deposed that there was old enmity with the accused persons, and that apart, last afternoon at about 3 his younger sister Sumitra (P.W.8) had gone to fetch water on the hand pump, where there was some altercation with Mohan (D.W.2) and consequently there had been a scuffle also between the two. Sumitra narrated the whole episode to Rajmal (P.W.5) injured. Then Rajmal went on the hand pump and he scolded Mohan (D.W.2), thereupon Kasumbi (D.W.1), mother of Mohan came at the house of Jasraj and started hurling abuses, however she was pacified by the victims and was made to go. The statement further shows that thereafter in the evening at about 8.30 all the accused persons, except accused Heera, armed with Lathis and Kulhari came to their house, started hurling abuses and called out Jasraj. Jasraj came out and tried to convince them, in the meantime, the accused Heera pelted a stone on Jasraj, which hit on the nose of Jasraj. Then other stone was also thrown, then accused Roshan inflicted injury with lathi. Hearing cries Jasraj's brother Rajmal (P.W.5) and deceased Bhanwar Lal came from inside to intervene. At that time the appellant inflicted one Kulhari blow on the head of the deceased from the reverse side, near the right temporal, while the other accused persons showered indiscriminate lathi blows. The appellant Goliya aimed another blow, which was prevented by Rajmal, then another blow was given to Rajmal on the head. The deceased fell down. On hearing cries many persons had collected, the deceased was taken to hospital, where doctor was not available, however, in the night he died. On the basis of this Parcha Bayan, a regular FIR was registered and investigation was commenced. The post mortem examination was got conducted, report being Ex.P/5, the injuries of Jasraj and Rajmal were examined by Dr. H.C. Sharma (P.W.9) vide injury report Ex.P/6 and P/7. After completing necessary investigation, including recovery of the axe on the information said to have been furnished by the appellant vide Ex.P/23, the axe was recovered vide Ex.P/8, the charge-sheet was filed in the Court of Judicial Magistrate, Jaitaran, who committed the case to the trial Court.;