GARG, J. - (1.) THIS appeal has been preferred by the accused appellants against the judgment and order dated 13. 1. 87 passed by learned Sessions Judge, Churu in Sessions Case No. 37/85 whereby the learned Sessions Judge, Churu while acquitting accused Bajrang lal for offence under Sec. 302 read with Section 114 I. P. C. convicted accused appellants for offence under Sec. 304 (II) read with Sec. 34 I. P. C. in place of Sec. 302 I. P. C. read with Sec. 34 I. P. C. and sentenced them as under:- Name of accused Offence under Sec. Sentenced awarded Bhoja Ram Sarvan Ram 304 (ii) read with Sec. 34 I. P. C. 5 years' R. I. and a fine of Rs. 3000/- in default to further undergo 1 year's R. I.
(2.) IT is stated here that accused appellant No. 2 Sarvan Ram has died, therefore, his appeal has been dismissed as abated by this Court vide order dated 30. 8. 2001. Hence, present appeal pertains to appellant No. 1 Bhoja Ram only. This appeal arises in the following circumstances: i) On 9. 6. 85, at about 1 a. m. , P. W. 5 Bega Ram lodged an oral report Ex. P/3 with the police Station Sardar Shahar, Churu before P. W. 10 Jogendra Singh stating that in the night on 8. 6. 85 at about 9-9. 30 p. m. P. W. 5 Bega ram along with P. W. 9 Bhera Ram were going towards the house of Soni for the purpose of satisfying natural call and as soon as they reached near the bus- stand, near the house of P. W. 4 Raju Ram, they heard cries and after hearing cries, P. W. 5 Bega Ram and P. W. 9 Bhera Ram rushed towards that place from where cries were coming and after reaching there they saw that the accused appellants were beating Amra Ram (hereinafter referred to as the deceased) and brother of P. W. 5 and at that time, the accused appellant Bhoja Ram was armed with Gandasi and that of Sharwan was armed with lathi and both beat the deceased severely. The deceased tried to run away, but he fell down in the premises belonging to P. W. 4 Raju Ram and thereafter Raja Ram P. W. 4 also came and when they made hue and cry, the accused appellants ran away, but they were saying that they had taken revenge. It was further stated in the report that the condition of the deceased was serious one as huge blood came out from his body and P. W. 2 Kistara Ram and P. W. 3 Bhajna Ram were also called. It was further stated in the report that since two days earlier to this incident. , the deceased entered the house of accused appellants and for that entry, this incident took place and accused appellants made murderous attack on the deceased. On this report, P. W. 10 Jogendra Singh chalked out regular FIR Ex. P/3 and registered a case for offence under Sec. 307 and 326/34 I. P. C. and since it he morning of 9. 6. 85, at about 4. 10 a. m. the deceased died, therefore, the case was converted under Sec. 302 I. P. C. At about 3. 45 a. m. on 9. 6. 85 injuries of deceased were examined by P. W. 1 Dr. Sri krishna Kaushik who gage his injury report Ex. P/1 which shows that the deceased received as many as 19 injuries both by blunt and sharp edged weapon. since the deceased died on the very night, the post mortem of the body of the deceased was got conducted by P. W. 1 Sri Krishna Kaushik and post mortem report is Ex. P/2 where the cause of death has been opined as profuse bleeding leading to shock. In the post mortem report Ex. P/2, four fractures have also been shown apart from the injuries mentioned in injury report Ex. P/1. After usual investigation the police submitted challan against the three accused persons in the Court of Magistrate for offence under Sec. 304 I. P. C. from where it was committed to the Court of Sessions Judge, Churu.
(3.) THAT on 21. 9. 95, the learned Sessions Judge framed charges for offence under Sec. 302, 302/34 and 302/114 I. P. C. against the accused appellants and one Bajrang Lal the who pleaded not guilty and claimed trial. During trial, 10 witnesses were produced by the prosecution and thereafter statements of accused under Sec. 313 Cr. P. C. were recorded and one witness was examined in defence. After conclusion of the trial, the learned Sessions Judge vide his judgment and order dated 13. 1. 87 convicted the accused appellants for offence under Sec. 304 (II) read with Sec. 34 I. P. C. in place of Sec. 302 read with Sec. 34 I. P. C. and sentenced them as stated above inter alia holding that: i) The prosecution has proved its case beyond reasonable doubt for offence under Sec. 304 (II) read with Sec. 34 I. P. C. ii) The learned Sessions Judge placed reliance on the statements of P. W. 4 Raju Ram, P. W. 5 Bega Ram and P. W. 9 Bhera Ram and treated them as eye witnesses. iii) The fact that in the report Ex. P/3 it was stated that the accused appellant Bhoja Ram was armed with lathi and Sarwan Ram was armed with Gandasi is correct one. Thus, he convicted and sentenced the accused appellants as stated above. ;