Satya Prakash Pathak, J. - (1.) This appeal under Section 374(2) of the Cr.RC. has been directed against the judgment of conviction and order of sentence passed by learned Sessions Judge, Bhilwara dated 14.10.1987 in Sessions Case No. 28 of 1987 whereby both the accused-Appellants namely Kalu Singh & Bhanwar Singh have been convicted and sentenced as under: Under Section 325 read with Section 34 Indian Penal Code - Each of them to undergo 4 years' rigorous imprisonment and pay a fine of Rs. 1,000/-, in default of payment thereof to further suffer three months' rigorous imprisonment. Under Section 323 IPC-Each one of the accused to undergo three months simple imprisonment. Under Section 452 Indian Penal Code - Each of the accused to undergo one year's rigorous imprisonment and to pay fine of Rs. 500/-, in default of payment to suffer further rigorous imprisonment for one month. Except the sentences awarded in lieu of non-payment of fine, all the main sentences have been ordered to run concurrently and the sentence already suffered during custody from 9.12.1986 to be deducted under the provisions of Section 428 Cr.PC.
(2.) Briefly stated, the facts of the case are that on 8.12.1986 at about 11 AM, an oral report was lodged by Sayar (PW 11) at Police Station Bijoliya before Acting SHO ASI Shyam Sunder (PW 7) stating interalia therein to the effect that he alongwith his brother Megha (deceased) lives in a room of old school in village Kasaniya and both of them work in mines. The neighbours Harji Rao, Pratap Rao, Kankupuri, Bhanwarpuri and Dhanpuri also live there with their families. On the previous night, at about 8-9 PM, his brother had come after taking liquor and in the drunken state abused Pratap Singh and Kankupuri. Pratap Singh, his son Harji and Kankupuri forbade him to abuse them telling that ladies also live there. He (informant) also told him not to behave in that manner and thereafter he alongwith his brother came to their room in the quarter and went to sleep. After about two hours, Kalu S/o Pratap and Bhanwarsingh Rawat came from Baniya Ka Talab in the torch light having sticks in their hands and after entering into the quarter started beating both of them. It is further stated that informant after sustaining 5-7 blows hidden himself under a stone slab. The accused gave lathi blows on the person of his brother which resulted in his death. Throughout the night he remained beneath the stone slab (Patti) and in the morning, at about 4.30 AM he narrated the entire incident to one Peeru who was his contractor. On his suggestion, oral report was lodged and investigation commenced. During the course of investigation, site was inspected, postmortem of the dead body was got conducted and accused persons were arrested. The articles of the case seized and sealed were sent for examination to the FSL. On the basis of disclosure statements of accused, lathis were recovered. After completion of investigation, challan was filed and on committal in due course of time it came before the learned Sessions Judge, who framed the charge under Secs. 302, 321, 323 and 450 IPC against the accused-Appellants. Accused denied the charges and claimed trial. In all, prosecution examined 12 witnesses. In the statement recorded under Section 313 Cr.PC., accused denied the prosecution case and claimed themselves to be innocent. No evidence was led by the accused persons in defence. The learned Trial Court, after hearing both side, convicted and sentenced the accused-Appellants as indicated hereinabove.
(3.) I have heard the learned counsel for the accused-Appellant as well as the learned Public Prosecutor for the State.;