VYAS, J. - (1.) IN the instant criminal appeal filed under Section 374(2), Cr.P.C. the accused-appellant Thawara is challenging the judgment dated 05.08.2004 passed by the Addl. Sessions Judge (Fast Track) No.1, Dungarpur in Sessions Case No.135/2003, whereby, the trial Court convicted the accused-appellant for offences under Sections 302 and 323, I.P.C. and passed sentence of life imprisonment against the accused-appellant for offence under Section 302, I.P.C. along with fine of Rs.5,000/- and, in default of payment of fine, to further undergo one year's simple imprisonment and passed sentence of one year's rigorous imprisonment for offence under Section 323, I.P.C. along with fine of Rs.500/- and, in default of payment of fine, to further undergo 3 months' simple imprisonment.
(2.) BRIEF facts of the case are that upon complaint filed by Senga s/o Kuber Meena an FIR was registered against the accused-appellant at Police Station Sagwara on 10.10.2003 for offences under Sections 447 and 307, I.P.C., in which, complainant P.W.-1 Senga alleged that there was dispute of land in between deceased Badiya s/o Kuber Meena and accused Thawara, therefore, on 10.10.2003 at 8 P.M. when deceased Badiya was sitting in front of his house accused Thawara came there and forcibly entered in the house and told Badiya that he will not go back without beating him because he is not providing way to him in the land and inflicted one lathi blow upon head and other parts of body, due to those injuries, deceased Badiya fell down but Thawara continued to hit blows to him. It is also alleged that P.W.-2 Smt. Samrath w/o late Badiya and P.W.-3 Smt. Kajari, mother-in-law of deceased Badiya were in the house and intervened but accused-appellant Thawara inflicted injuries to them also and, thereafter, left the place of occurrence. After the incident took place, injured Badiya was brought to hospital where his treatment is going on. The S.H.O., Police Station Sagwara registered the case against the accused-appellant for offences under Sections 447 and 307, I.P.C.; but, subsequently, at about 11.30 P.M. on 10.10.2003 the injured Badiya died in the hospital. After registration of the FIR Ex.-P/1 the injured died, therefore, investigation was commenced for offence under Section 302, I.P.C. and, finally upon completion of the investigation, challan was filed against the accused- appellant for offences under Sections 302, read with Section 323, I.P.C. in the Court of Addl. Chief Judl. Magistrate, Sagwara, from where, the case was committed to the Court of Sessions at Dungarpu. Learned Sessions Judge, Dungarpur transferred the case to the Court of Addl. Sessions Judge (Fast Track) No.1, Dungarpur for trial where trial commenced and, after framing charge against the accused-appellant for offences under Sections 302 and 323, I.P.C. statements of 17 prosecution witnesses were recorded viz., P.W.-1 Senga, P.W.-2 Smt. Samrath, P.W.-3 Smt. Kajari, P.W.-4 Haliya, P.W.-5 Kaliya, P.W.-6 Kachara, P.W.-7 Dhula, P.W.-8 Smt. Sharda, P.W.-9 Smt. Punji, P.W.-10 Munna, P.W.-11 Bhanji, P.W.-12 Sukhlal, P.W.-13 Smt. Ganga Devi, P.W.-14 Vijendra Chaubisa, P.W.-15 Dr. Jagdish Badgurjar, P.W.-16 Ram Lal Parmar and P.W.-17 Nijamuddin; and, as many as 15 documents were exhibited.
(3.) THEREAFTER , statement of accused-appellant under Section 313, Cr.P.C. was recorded, in which, accused- appellant refuted all the charges levelled against him and led evidence of D.W.-1 Wagha in support of his defence. After recording evidence in the trial final arguments were heard and, thereafter, learned trial Court convicted the accused appellant for offences under Sections 302 and 323, I.P.C. and passed the sentences as noted above vide judgment dated 05.08.2004. In this appeal, learned counsel for the appellant vehemently argued that in the trial prosecution has failed to prove its case beyond reasonable doubt because the author of the FIR is P.W.-1 Senga, brother of the deceased is not eye-witness but, in the FIR, registered at his instance, he has specifically alleged that accused- appellant Thawara inflicted injury upon head and other parts of body by lathi but, as per the medical report, there is no injury upon the head of deceased Badiya and P.W.-1 Senga is not eye-witness, therefore, his testimony has wrongly been relied upon by the trial Court for the purpose of convicting the accused- appellant.;