V. G. PALSHIKAR, J.

( 1 ) THIS appeal is directed against the judgment dated 6th April 1990 passed by the Addi. District Sessions Judge, Nagaur, in Sessions Case No. 43/87. Having found the accused appellant guilty the learned Judge proceeded to convict the appellant under sec. 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and a fine of Rs. 100/ -. Other eleven accused persons were acquitted by the learned Judge of the charges under Secs. 148, 302/149 and 323/149 of the Indian Penal Code. Acquittal is not questioned by the prosecution.

( 2 ) FACTS necessary for proper adjudication of this appeal stated in brief are that on 6th April 1987 villagers of village Satika in Nagaur Taluk and District Nagaur went to the local festival (Mela ). Villagers (approximately 800 to 1,000) had gethered for that Mela. It is alleged that in the morning at about 10 0 clock one Megha Ram came near the camel cart or one Bakhtaram after worshipping the goddess from the temple. After sometime, Megha Ram started to return when several persons named, assaulted Mega Ram severely injuring him. When scors of others from the Mela gathered on the spot, the assailants ran away before police could arrive on the scene. Police recorded statement of some of the persons present and First Information Report was recorded at the instance of one of them. Due investigation was, thereafter, carried out and 12 persons, including the present appellant were prosecuted under Secs. 148, 149, 302/149 and 323/149 of the Indian Penal Code for causing murder of Megha Ram and causing hurt to Megha Ram.

( 3 ) THE prosecution examined 13 witnesses to prove its case and 5 witnesses were examined on behalf of the defence. On appreciation of the entire oral and documentary evidence available in the case, the learned Addi. District and Sessions Judge, Nagaur, found only Hema Ram guilty of the offence under Sec. 302 of the Indian Penal Code and he proceeded to acquit all the eleven others of all the charges framed against them. The learned Judge found no credible evidence against any of the other accused and he acquitted all of them. It is the conviction of the accused Hema Ram which is now questioned before us in this appeal.

( 4 ) BEFORE appreciating the several submissions made on behalf of the accused, it would be just and proper to again scrutinise the evidence on record on the basis of which the impugned judgment was delivered by the learned Judge. Of the 13 prosecution witnesses only 2 are eye-witnesses to the incident and rest are panch witnesses, police-witnesses and doctor etc.

( 5 ) PW 12 in Dr. Arjun Ram Kala, who conducted the post-mortem and deposed that death was caused due to the injuries. He opined that injury No. 1 was sufficient in the ordinary course of nature to cause death. PW 2 is the Compounder of the rural hospital who deposed that the doctor was not available at the rural hospital. PW 3 is Shankar Singh, a police Constable who carried four packets duly sealed to the Forensic Science Laboratory, Jaipur.

( 6 ) PW 4 Bakhtaram is the first eye-witness. He has extensively deposed of the entire happenings of that day. He has deposed the names of all the 12 accused and he has deposed the manner in which these accused persons allegedly assaulted deceased Megha Ram. He has averred in his deposition, after naming the 12 accused persons that these 12 persons came in camel carts and all of them were armed and they encircled Megha Ram with a view to thrash him out. He then states that Hema Ram and Sana Ram had axe and other accused had sticks. When accused persons armed with sticks started following Megha Ram the witness shouted Megha Ram your enemies are following you to beat you. On hearing this, he said that Megha Ram turned down and started running. But the accused encircled him. They started beating him. For quite some time Megha Ram defended himself with his own stick. When the accused persons were so assaultin