BHARGAVA, J. - (1.) THESE two appeals are directed against the judgment passed by learned Additional Sessions Judge, Jhalawar, convicting accused appellants Mathura, Dhan Singh and Rang Lal u/s 302 r/w Sec. 34 IPC and sentencing each of them to imprisonment for life and a fine of Rs, 100/- in default of payment of fine further RI for three months.
(2.) SOME quarrel between the parties took place at the time of collection of some money for arranging a party of the Caste Panchayat. When deceased Kanwar Lal was going with his Ox, near the house of Gyarsi Lal, five accused persons came there and surrendered him. Ranglal was having an axe while Mathura and Dhan Singh were having Farsis in their hands, and the other two accused persons Chanda and Bhagwan Singh were having lathis in their hands. They gave beating to the deceased Kanwarlal as a result whereof, he died. Sheoram, younger brother of the deceased told about the occurrence to his father Kalu (PW 1) who lodged the first information report (Ex. P. 1) on 16. 9. 84, at 5. 30 PM, at Police Station Manohar Thana. On the aforesaid, the police registered a case and after usual investigation, challaned the case in the court of Magistrate, who committed the case to the court of Sessions. Accused Bhagwan Singh is being tried by the Children's Court and accused Chanda has been discharged by the learned court below. Additional Sessions Judge, after trial convicted the accused-appellants as aforesaid. All the three appellants preferred appeal through jail which has been registered as D B Cr. (Jail) Appeal No. 442/86. Thereafter, a represented appeal has been filed by accused Mathura and Dhan Singh which has been registered as D. B. Cr. Appeal No. 451/86 and both these appeal are being disposed of by this common order. We have heard Shri Jinesh Jain on behalf of accused Ranglal and Shri A. K. Gupta, on behalf of accused Mathura Lal and Dhan Singh, and Rizwan Alvi, P. P.
(3.) WE have carefully gone through the judgment of. the trial court and have also perused the record of the case. Learned trial court has placed reliance on the evidence of PW-4 Sheo Ram and PW-5 Hari Singh and also on the circumstantial evidence of recovery of the clothes and the weapon which have been found to be stained with human blood. Prosecution had examined two other witnesses PW-2 Mangilal and PW-3 Jagannath as eye witnesses We have carefully gone through this evidence, particularly PW 4 Sheoram and PW 5 Hari Singh who are both child witnesses. PW-4 Sheoram is aged 13 years and is younger brother of the deceased Kanwarlal while PW-5 Hari Singh who is aged 10 years, is also closely related to the deceased Kanwarlal. Both of them are also chance witnesses. They have stated that when Ranglal accused inflicted a blow, the deceased fell down on the side of the back with his face upwards and thereafter, it is not possible that the other two accused Mathura and Dhan Singh could inflict the blow on the back or on the neck of the deceased. Therefore, they have tried to make an improvement that all the three injuries were inflicted while deceased Kanwarlal was standing. Learned counsel for the appellants has placed reliance on (1) Ram Singh V. State, (2) Savia V. State of Rajasthan, (3) Shyama @ Shyam Lal V. State of Rajasthan, (4) Hawa Singh V. State and (5) Caetano Piedade Fernandes V. U. T. of Goa. ;