- (1.) This criminal appeal preferred by appellants Vachangar S/o Ganeshgar and Kangar S/o Ganeshgar is directed against the judgment of conviction and order of sentence dated 14.11.2003 passed by the learned Additional District and Sessions Judge (Fast Track), Jalore, Camp Bhinmal in Sessions Case No. 116/2003 (31/2003), whereby appellant Vachangar was convicted for the offence under Section 452, 302 and 323 IPC and appellant Kangar was convicted for the offence under Section 452, 302/34 and 323 IPC and they were sentenced as under :- Section 302 or 302/34 IPC : Life term imprisonment alongwith a fine of Rs.3,000/- and in default of payment of fine, further to undergo simple imprisonment for two years. Section 452 IPC : Rigorous imprisonment for three years and a fine of Rs.1,000/- and in default of payment of fine, further to undergo simple imprisonment for three months. Section 323 IPC : Rigorous imprisonment for six months and a fine of Rs.500/- and in default of payment of fine, further to undergo simple imprisonment for one month.
(2.) The brief facts of the case giving rise to the present appeal are that on 08.06.2003 at 1.30 a.m. complainant Kishangar (P.W.12) submitted a report (Parchabayan) (Ex.P.13) to Shri Gani Mohd., Sub-Inspector, Police Station Sanchore to the effect that he alongwith his father Amargar had gone to attend the marriage of Mansagar's son. Mansagar is younger brother of Ganeshgar. As the family of Ganeshgar did not come to Mansagar's house, he had gone to call them during the day, but they did not come. In the evening at about 5.00 p.m., Ganeshgar's sons Vachangar, Kangar, Krishangar, Chetangar came to Mansagar's house armed with lathis and asked them why they had come there and gave a lathi blow on his head, due to which he fell down. His father Amargar came to rescue, then Vachangar gave a lathi blows, which hit on Amargar's head. While the complainant was lying on the ground, Vachangar gave a lathi blow on his left thigh. Vachangar again inflicted a lathi blow to Amargar, which hit on his left wrist. Kishangar and Kangar were also armed with lathis, but they did not gave any lathi blows. Mansagar's mother Champa (P.W.4) was the eye-witness who saw the entire incident.
(3.) On the basis of the above report, FIR No. 150/2003 was registered at Police Station Sanchore for the offence under Section 307, 323, 454/34 IPC and the investigation commenced. During the course of investigation, injured Amargar died at Mahatma Gandhi Hospital, Jodhpur on 10.06.2003. After usual investigation, police filed chargesheet against the appellants for the offence under Section 452, 302, 325 and 323/34 IPC before the Additional Chief Judicial Magistrate, Bhinmal. Since the case was exclusively triable by Court of Sessions, the case was committed to the Court of Additional Sessions Judge, Bhinmal, from where it was transferred to the Court of Additional District and Sessions Judge (Fast Track), Bhinmal on 08.08.2003. The accused-appellants were charged for the offence under Section 452, 302, 302/34, 325, 325/34, 323 and 323/34 IPC. The charges were read over and explained to the accusedappellants, to which they did not plead guilty and faced trial.;