P.D.KUDAL, J. - (1.) THE accused -appellant as Mohammed has filed this appeal from jail against the judgment of the learned Addl. Sessions Judge, Bharatpur dated 28 -4 -1971, whereby the accused was convicted under Section 302, IPC, and sentenced to imprisonment for life.
(2.) THE facts of the case, in brief, are that the deceased Gyani had two sons, namely, As Mohammed and Nihala. As Mohammad was aged about 30 years, and Nihala was aged about 20 years on the date of occurrence As Mohammad was married to Mst. Kashmiri. The prosecution case is that As Mohammad was impotent and not worthy of his wife. The parents of Mst. Kashmiri after obtaining divorce performed ''nikka' of Kashmiti with Nihala As Mohammad used to quarrel with his father Gyani, and used to impress upon him the necessity and urgency of the treatment and cure of his impotency. It is alleged that on the night intervening 17th and 18th May, 1970, at about 10 p.m , when Gyani was at the 'badi' of Ram Rakha, the accused. As Mohammad beat him with lathis resulting in his death. Ram Rakha, it was alleged, had seen the accused be beating Gyani, and the witnesses. Tiddi mangal reached three soon after and they had seen the accused. As Mohammad running away after beating Gyani. The condition of Gyani was serious; and, as such, he was taken to the Hospital, Kama, where he died. First Information Report was lodged by Nihala and the police after due investigation charge sheeted the accused before the Munsiff -Magistrate, Deeg, who conducted the committal enquiry and committed the accused to stand his trial under Section 302, IPC before the learned Sessions Judge. The case was ultimately tried by the learned Additional Sessions Judge, Bharatpur, who found the accused guilty of an offence under Section 302, IPC, and sentenced him to imprisonment for life, and, hence this appeal. On behalf of the accused appellant, it was contended that there is no direct or circumstantial evidence on the basis of which the conviction of the accused could be sustained. It was also contended that the occurrence is alleged to have taken place it about 10 p.m. in the night intervening 17th and 18th May, 1970. It was also contended that the said night was not a full moon - lit night. It was Vaisakh Sudi 11. As such, there was only partial moon -light. It was contended that from such a great distance neither the assailant could be identified, nor, could there be any identity of the weapon of offence used. It was also contended that the learned trial Court has seriously erred in relying on a extremely weak evidence. It was further contended that there is absolutely no direct evidence, and the circumstantial evidence is not of a character which could lead to the irresistible conclusion that it was the accused appellant alone who had caused the death of the deceased by striking him with lathi. It was also contended that the dying declaration is absolutely unnatural, and, as a matter of fact, it was never made.
(3.) ON behalf of the State, it was contended that the accused. As Mohammad was highly prejudiced with the deceased Gyani, as he was instrumental in arranging the 'nikka' of Kashmiri with Nihala, the younger brother of the accused. It was also contended that the accused. As Mohammad was seen with the deceased Gyani just before the occurrence and he was seen going away with a lathi soon after the occurrence, and this would lead to the irresistible conclusion that it was the accused alone who had caused such injuries to Gyani which ultimately resulted in his death. It was. therefore, contended that the learned Additional Sessions Judge was justified in convicting the accused -appellant under Section 302, IPC.;