ASHOK KUMAR MATHUR,J. - (1.) BOTH these appeals arise out of the same order as such they are disposed of by this common order.
(2.) ACCUSED -appellants Hanuwant Singh and Deraj have filed the present appeal against their conviction and sentence under Section 302 read with Section 34 IPC. The other two accused namely, Jalamsingh and Amra were acquitted by the learned Sessions Judge, Jalore vide his order dated 19 -3 -1981 and against that the State has preferred an appeal against their acquitted. Both these appeals were heard together and they are disposed of by this common order. The facts giving rise to this case are that a First Information Report was filed by PW 4 Nenuram on 28 -8 -1980 at police -station Sayala. It was stated therein that his brother Nandram was taking his cattle to Jaisalmer as there was famine that year He had come to his house on the previous evening and stayed over night with him. On next morning i.e. 28 8 -1980 when he went to look up his cattle he found that they were not there, thereupon Nandram went in search of his cattle. When Nandram did not turn up upto 10 O'clock, he along with Likhma went in search of Nandram. When they reached the field of Deraj there they found that accused Deraj, Amra, Hanwantsingh and Jalamsingh were belabouring Nandram with lathis. Hanwantsingh dealt with a lathi blow on the head of the deceased Nandram as a result of which he fell down. Thereafter, the remaining three accused persons hit the deceased with lathis on various parts of his body. He tried to rescue him. They requested them to spare him Thereafter the accused persons went away. Deceased Nandram because unconscious and he along with Likhma brought him below the shadow of Khejari tree where he breathed his last. Nenuram left the dead body of the deceased and Likhma there and filed the First Information Report at police station Sayala. The police look up the investigation reached at the scene of occurrence and prepared the site inspection memo and seized the dead body of the deceased After close of the investigation, the prosecution filed a challan against all the tour accused persons, namely, Hanwantsingh, Jalamsingh, Deraj and Amra and examined 6 witnesses and produced a large number of documents The plea of the accused Deraj was that deceased Nandram wanted to fake some liberty with his sister, therefore they went there and in that deceased Nandram has beaten his sister and him also He said to have received a blow on his head and on hand with Dhana. He also attacked deceased Nandram with lathi in order to save himself and his sister. The learned Sessions Judge, after due trial came to the conclusion that the case so far as accused Hanuwant Singh and Deraj is concerned the same is proved and found them guilty under Section 302 read with Section 34 IPC. However, the learned Sessions Judge acquitted the accused Amra and, Jalamsingh on the ground that the presence of these accused persons is not found proved at the scene as according to the evidence at the relevant time accused Jalamsingh was at Jaisalmer and so far as accused Amra is concerned he has no relation what so ever with the accused Therefore, he has been falsely implicated. Thus, he acquitted both these accused persons.
(3.) WE have heard Mr. Doongarsingh and the learned Public Prosecutor and have also gone through the record.;