BALI, J. - (1.) PITRAM with the help of his sister's brother Rotash and four others from the village of Rotash namely Mahesh Kumar, Subhkaran @ Sube Singh, Amar Singh and Vijay Singh, it is the prosecution case, killed Moosaram, real brother of the appellant PITRAM and injured Mooli, mother of appellant PITRAM and deceased Moosaram on 13. 10. 1996 at 8 p. m. In the trial held against six persons named above, whereas Mahesh, Subhkaran, Amar Singh and Vijay Singh have been acquitted, the appellant PITRAM and Rotash have been found guilty of offence u/s 302 read with Section 34 IPC and sentenced to undergo life imprisonment as also to pay a fine of Rs. 1,000/- or in default of payment of fine, to further undergo R. I. for a period of three months, vide order of conviction and sentence passed on that behalf by the learned Additional Sessions Judge, Neemkathana, District Sikar, dated 2. 12. 1999.
(2.) WITH regard to the occurrence leading to the death of Moosaram and injuries to Mooli that took place on 13. 10. 1996 at 8 p. m. FIR (Ex. P. 2) was lodged on the same day at 9. 30 p. m. by Maliram (PW-1 ). It was a written report handed over to Surendra Kumar, SHO (PW-17 ). Special report with regard to the incident reached the concerned Magistrate Neemkathana on next day i. e. , 14. 10. 1996 at 3. 30 p. m. The conviction of the appellants rests on ocular account of the chain of events leading to death of Moosaram and injuries to Mooli, provided by the real brother of Pitram, the first informant Maliram as also mother of the appellant Pitram and deceased Moosaram as also two other eye witnesses namely Khyali Ram (PW-8) and Sarjit Singh (PW-9 ). The prosecution also relied upon statement made by Dr. Pramod Kumar Garg, (PW-12) who conducted post mortem on the dead body of Moosaram and examined Moolidevi as also Surendra Kumar, SHO (PW-17) who deposed with regard to the steps that he had taken while investigating the case. While lodging the FIR by way of written report (Ex. P. 2) Maliram (PW-1) stated that on 13. 10. 1996, he and his brother Moosaram after boarding a Tempo had gone to Neemkathana to bring domestic articles and after making the purchases, they had reached the Dhani of their father, which is situated on Bhudoli Road, at about 9 p. m. After parking the tempo and talking to their mother, when they had proceeded towards Dhani Lambawali and had reached the fields of Darogas, he heard cries of his mother that she was being killed and her sons should run away and further that the appellant Pitram had come with 4-5 hoodlums. When he heard the cries of his mother, he ran, in the meanwhile, 4-5 persons caught hold of his elder brother Moosaram and attacked him with the intention to kill him. His brother Pitram, who was employed with BSF was armed with a `bakda' with which he gave injuries to his brother upon which he fell down and the companions of Pitram caused him injuries, upon which Moosaram cried for help from the complainant. He stated that Pitram had avenged his enmity. The appellant Pitram stated that the one who was troubling his wife and was real enemy, had escaped and he should be caught. Hearing this, he got scared and hid himself in the fields of his maternal aunt. Persons named above, on hue and cry raised by Moosaram started searching him with torch and then ran away. He looked after his brother but found that he had already died. At that time, persons who were passing through near the farm of Ramesh had also heard and seen the occurrence. He had recognised all the persons with the torch and could identify them if they might come before him. He followed these persons and then ran towards the police station. Dr. Pramod Kumar Garg examined as PW-12 stated that on 13. 10. 1996 he had medico legally examined Moolidevi wife of Kishnaram and found following four injuries on her person : 1. Lacerated wound 7 x 2 x 0. 5 cm with diffuse swelling Rt. Hand-blunt. 2. Diffuse swelling upper 1/2 of Lt. leg with knee-blunt. 3. Lacerated wound 2. 5 x 0. 5 x 0. 5 cm Lt. leg near ankle- blunt. 4. Complaint of pain and tenderness Rt. Chest-blunt. " In the opinion of the doctor, all the injuries had been caused by blunt weapon. The same were caused within duration of 24 hours. The doctor proved medico legal report Ex. P. 15 Doctor also stated that on 14. 10. 1996 he had conducted post mortem on the dead body of Moosaram son of Kishnaram and found following eight injuries on his dead body. 1. Lacerated wound 6 x 2 cm x bone deep-chin-blunt obliquely placed. 2. Lacerated wound 3 x 1. 5 x 1cm upper lip-blunt. 3. Bruise 10 x 3 cm. Lt. face obliquely placed. 4. Lacerated wound 10 x 2 cm x bone deep, Lt. Temporoparito-occipital region semi curved in shape-blunt. 5. Lacerated wound 12 x 3 x 0. 5 cm Lt. Leg blunt obliquely placed. 6. Lacerated wound 2 x 1 cm Rt. Leg-blunt. 7. Abrasion 2 x 1 cm Lt. thigh. 8. Bruise-three in number (A) 10 x 2 cm (B) 8 x 2 cm (C) 4 x 2 cm Horizontally placed on Lt. Thigh parallel to each other at 2 cms apart. All bruises red in colour. "
(3.) DOCTOR found that left temporal and parietal bones were fractured. In the opinion of the doctor, the cause of death was coma, which was because of head injuries. The injuries were ante mortem in nature and were caused within duration of 24 hours. The same were sufficient in the ordinary course of nature to cause death. The doctor proved post mortem report (Ex. P. 16 ). As mentioned above, Maliram (PW-1) real brother of deceased Moosaram and Mooli (PW-2) mother of the appellant Pitram and the deceased and two eye witnesses Khyali Ram (PW-8) and Sarjit Singh (PW-9) were examined by the prosecution. They fully supported the prosecution case. The appellants in their statement u/s 313 Cr. P. C. denied their participation in the commission of crime and claimed that they were innocent. They led no evidence in defence but for to produce on records statements of the witnesses recorded by the police u/s 161 Cr. P. C. ;