V.G. Palshikar, J - (1.) This.appeal is directed against the judgment and order dated 8th August, 1986 passed by the Addl. Sessions Judge (2), Udaipur convicting accused Dhoola under Section 302, accused Valji under Section 302 read with sections 149, 454, 148 and similarly convicting accused Heera, accused Dheera, Nathu, Jhoomji and Kalu under section 302 read with Section 49 of the I.P.C. as also under section 148 of the I.P.C. and sentenced them to imprisonment for life. The learned Judge acquitted three other accused of all the offences.
(2.) The prosecution story is that two children were killed between 12.00 and 1.00 noon on 26th June, 1985 in village Kharadiwada. It is averred that they were Dinesh, son of Bheema aged 4 years and Jivi daughter of Bheema aged 7 years According to the F.I.R. lodged by the complainant Bheema, unfortunate father of the deceased children, in the noon both of his children were sleeping on a mattress near the bed on which Bheema was lying. He heard noise of some people coming from the back side of the tenament and saw behind the wooden wall the accused Nathu Heera, Dheera, Valji and Dhoola who were armed with guns and axes and others were having sticks, the others were not named in the F.I.R. He was, therefore, frightened of being hurt or assaulted by them. He, therefore, ran away from the house and concealed himself in the adjoining hut and saw from there that the accused broke the wooden barrier and entered the house of complainant when accused Dheera said that Bheema has run away so beat his children. Then Valji and Dhoola separately went to the sleeping children and gave axe blow to both. Having heard the shrieks of Jivi, Bheema lost his courage and ran away towards Police Station, and lodged the F.I.R.
(3.) Thereafter, the police investigation took place, the accused were arrested and thereafter, they were duly charge- sheeted. They were charged for the offence punishable under Section 302, 302 read with Sections 49, 148 and 454 of the I.P.C. and on the accused denying guilt were tried in sessions case No. 19 of 85 in the Court of Addl. Sessions Judge (2), Udaipur. The learned Judge on appreciation of the evidence on record came to the conclusion that five of the accused persons are guilty of the offence charged and therefore, proceeded to punish them for the offences as aforesaid. It is this judgment and older of conviction which is impugned in this appeal by the appellants.;