N.L. Tibrewal, J. - (1.) Appellants Prakash and Data Ram have preferred this appeal against the judgment and order dated June 30, 1992 passed by Additional District & Sessions Judge, Dholpur in Sessions Case No. 56/90, whereby Data Ram was convicted under Section 302, IPC and Prakash was convicted under section 302 read with Section 34, IPC. They were sentenced to imprisonment for life and to pay a fine of Rs. 500/-each. In default of payment of fine, they were further required to undergo simple imprisonment for one month.
(2.) The facts giving rise to this appeal are as follows : PW 1 Rajveer made a written report at Police Station Sepau, District Dholpur at 10.00 a.m. on 15.7.90 for an incident which had taken place on the same day at 7.00 a.m. One this report, Crime No. 136/90 was registered under Section 147, 148, 149 and 302, IPC and a formal FIR (Ex.R 3) was chalked out. As per the prosecution case, informant-Rajveer and his brother Rajesh, aged 18 years, were grazing their she-goats near the pond of the village. 'Nohra' of Data Ram-Appellant is also situated near the pond where the appellants, Charan Singh, Tej Singh, Nek Ram and Ram Charan abusing (sic) Harijans of the village. The deceased-Rajesh rebuked them for hurling abuses on Harijans. Thereupon, they cried to kill him. The appellant Data Ram, then, inflicted blow with the axe on the head of Rajesh. Appellant-Prakash and other persons were having lathis at that time and it is alleged that Prakash took the axe from Data Ram-appellant and inflicted a blow on the ear of Rajesh. Against remaining persons, the accusation was that they surrounded the deceased. After registration of the case, Police started investigation. Inquest-Report was prepared and Dr. Bhagwandas Jindal (PW 5) conducted autopsy on the dead body of the deceased. As per the post-mortem report (Ex.P 5) the deceased has sustained the following injuries : "1. Incised wound-5 Cm x 2 Cm x Infracranial region scalp at mid parietal region transverse in direction. Cause of both parietal bone & laceration of parietal lobe of brain. 2. Incised wound-4 Cm x 2 Cm x Infracranial on scalp at Right parietal region vertical in direction cause of Rt. parietal of brain. 3. Incised wound-3 Cm x 1 Cm x cartilage deep transverse in direction cutting the c.a. pinna of Lt. ear at middle." The opinion of the doctor regarding the cause of death of the deceased was multiple fracture on parietal bones and laceration of brain and haemorrhage due to sharp weapon. Both the appellants were arrested on 9.8.90. After completing requisite investigation and recording statements of the witnesses, the charge sheet came to be filed against the appellants only. No charge sheet was filed against other persons named in FIR against whom there was an allegation to have surrounded the deceased-Rajesh. Charge under Section 302, IPC was framed against the appellant Data Ram for causing murder of Rajesh by inflicting axe-blows on his head while appellant Prakash was charged under Sections 302 with the aid of Section 34, IPC.
(3.) During trial prosecution examined 15 witnesses. It mainly relied on the evidence of eye-witnesses, PWs 2, 7, 9 and 11 to seek conviction of the appellants. The trial Court, placing reliance on their testimony, convicted and sentenced the appellants as stated above.;