JAIN, J. - (1.) THIS appeal is directed against the judgment and order dated 12. 05. 2000 passed by Shri R. P. Singh, Sessions Judge, Sawai Madhopur, in Sessions Case No. 76/99 whereby all the accused appellants have been convicted and sentenced for the offence under Section 302/34 IPC to undergo imprisonment for life and a fine of Rs. 1,000/- in default of payment of fine to further undergo for simple imprisonment of one month.
(2.) THE brief facts of the case that on the basis of Parcha Bayan of Smt. Jagani (Ex. P-15) a First Information Report No. 169/99 (Ex. P-20) was registered at Police Station Chauth Ka Barwada, District Sawai Madhopur wherein it was alleged that she is illiterate. She came one day prior to Rakhi to her father's village Bandha. Her elder brother Ramvilas had died about 9 months ago and her father Kanhaiya Lal had also died about two and half months ago. Therefore, she came on the festival of Rakhi. She further stated that her younger brother Babu was not available at the house, therefore, she could not tie Rakhi on the hands of his brother Babu. His brother Babu came in the evening, she prepared food for his brother and thereafter Babu and her husband both took meals. Thereafter, they all were talking in the late night. She also slept. She further stated that all of sudden, she heard hue and cry and came out from the house and saw that her brother Babu was tied with the tree in front of their house and her uncle Girdhari, his elder son Fotu, younger son Ram Prakash and aunt Narbada all were beating to him by lathies and Dandas. She told them not to kill Babu and at the most they may punish Babu by cutting his legs. Some other persons namely Ramji Lal Meena and Bhajan Meena and other persons of the village came at the place of occurrence and told not to kill Babu but his uncle and his sons continued beating to his brother. Thereafter Babu got free at about 7 O'clock in the morning but he died at about 9 A. M. On the basis of this Parcha Bayan a case under Section 302, 342/34 IPC was registered and investigation commenced. During investigation the police prepared sight plan and got the deceased medically examined. The post mortem report was also prepared. After completion of investigation the police filed challan against all the accused persons for the offences under Section 302, 342/34 IPC. The case was committed for trial. Learned Trial Court framed charges against the accused persons for the offence under Section 302 IPC and in alternative under Section 302/34 IPC. The accused denied the charges and claimed trial. In support of the case, the prosecution examined 11 witnesses PW 1 to PW 11 and produced documentary evidence Ex. P1 to Ex. P28. Thereafter the statement f the accused persons were recorded under Section 313 Cr. P. C. wherein accused person stated that prosecution case is false and they have falsely been implicated by the complainant party. The accused Girdhari stated that deceased Babu was beaten by his other colleagues because of quarrel on division of theft articles stolen by them. He further stated that he was not present as he had gone to forest. He took a plea of alibi. The other accused Ram Prakash, Fotu and Smt. Narbada also stated that they were not present at the time of occurrence. The learned Trial Court, after hearing both the parties vide its impugned judgment and order convicted and sentence the accused appellants for the offence as mentioned above.
(3.) LEARNED counsel for the appellants has argued that accused appellant Girdhari is uncle of deceased Babu and Ram Prakash and Fotu are sons of Girdhari. Smt. Narbada is a wife of Girdhari and the entire family has falsely been implicated in the present case. He further argued that PW-4 Smt. Ram Pyari who is mother of the deceased has admitted in her cross examination that he husband and elder son died few months ago. The deceased Babu did not come even to attend funeral of her husband. Wife of Babu left the house as Babu used to drink liquor and used to beat her. PW4 has also admitted that Babu used to commit the offence of theft in the village and there was no control on deceased Babu, she also stated that her husband and elder son died due to shock because of offences committed by deceased Babu. She also stated that she is continuously ill because of wrong action of Babu. The other village were also present at the place of occurrence but no one came to rescue Babu. PW 4 Ram Pyari further stated that who gave beating on the person of Babu is not known to her. The night was dark. The learned counsel for the appellants submit that even if a case of the prosecution is accepted, it is clear that there was no intention to kill Babu. The object, who can be gathered from the evidence on record, is at the most, to given lesson and punish Babu so he may not commit any offence in the village in future. Pw 8-Smt. Jagani is sister of deceased. She admitted in her cross examination that Babu had stolen she-goats of her uncle Girdhari and had sold. She further admitted that her mother was ill, she admitted that the entire villagers were present at the place of occurrence and no one came in rescue. She also admitted that Babu did not attend the funeral of her father. All the customs of her father, after his death, were performed by her uncle Girdhari. Pw 8 further admitted that all the villagers used to tell her uncle Girdhari about offences committed by Babu. She also admitted that at the time of beating she also told that the hands and begs of Babu be broken. Her father and elder brother all were annoyed with Babu. Babu used to drink liquor everyday. Babu used to commit theft in village also. Learned counsel for the appellants further submits that Pw 6 Dr. Malkhan Singh who conducted the post-mortem report found the following injuries:- 1. Lacerated wound 1" x 1/2' x 3/4" nose both both eyes. 2. Bruise 2-1/2" x 2-1/4" Lt. side upper arm betn elbow and wrist joint. 3. Bruise 2-3/4" x 2-1/2" Rt. side upper arm betn elbow and wrist joint. 4.Bruise 1-1/2" x 1-1/4" Rt. side chest. 5.Bruise 1-3/4" x 1-1/3" Lt. side chest. 6. Bruise 3" x 1-3/4" Lt. side shoulder posteriorly. 7.Bruise 2-1/4" x 1-1/2" Rt. side shoulder posteriorly. 8. Bruise 3-1/3" x 2-3/4" ltd. side lower leg Anteriorly 1- 1/2" below knee joint. 9.Bruise 3-1/3" x 2-3/4". lt. side lower leg thigh betn Hip and knee joint. 10.Bruise 1-1/5" x 1-1/7" lt. side lower leg Anteriorly 2- 1/2" above Ankle joint. 11.Bruise 1-1/2" x 1-1/4" rt. side lower leg Anteriorly 2- 3/4" above Ankle joint. 12.Bruise 2-1/4" x 1-1/6 lt. side body laterally at 7 & 8 rib. 13.Bruise 2-1/5" x 1-3/4" Rt. side body laterally 9th & 10th Rib. ;