1. This appeal is preferred against the judgment dated 10.7.95 passed by learned Sessions Judge, Jhunjhunu in Sessions case No. 105/90, whereby the appellants Ram Avtar and Sawai Singh were convicted and sentenced under section 302/34 IPC to suffer imprisonment of life.

2. Five persons namely Ram Avtar, Sawai Singh (both sons of Shri Gadsi Ram), Smt.Gaura Devi W/o Shri Gadsi Ram, Narain Ram and Rajpal were put to trial for offences under sections 147, 302, 302/149, 379 and 447 IPC. Out of five persons three Narayan Ram, Rajpal and Smt. Gaura Devi were acquitted of all the charges. The appellants were acquitted for the offences under sections 147, 379 and 447 IPC but convicted and sentenced under section 302/34 IPC instead of under section 302/149 IPC.

3. Briefly narrated the prosecution story runs like this that PW 11 Shri Mahfooz Ali, Head Constable, Police Station Udaipurwati, District Jhunjhunu came to the hospital at Udaipurwati and recorded parchabayan of PW3 Shri Onkar (Ex.P/2) at about 7.30 a.m. on 28.5.90. According to the Parchabayan Ex.P/2, Shri Surjaram (deceased) of 60 years age, resident of village Navaldi (at present residing in his field in Dhani Pujariyan) was coming from village Navaldi to his Dhani at about 8-9 p.m. on 27.5.90. Four accused persons Ram Avtar, Sawai Singh, Narayan Ram and Smt.Gaura Devi who were hiding themselves attacked Surjaram on the way. Shri Ram Avtar having Burch and remaining three accused persons having lathi started beating Shri Surjaram. Having board hue and cry he came from his own Dhani and from the other Shri Laxrnan and Smt.Bhagwani (PW2) also rushed to the place of occurrence. All the four accused persons ran away. Shri Surjaram was lying there with bleeding from his legs. He was brought to hospital by a jeep. Shri Surja Ram was not speaking since night. One Shri Kurda Ram also reached the place of occurrence. Litigation for division of land was going on between Shri Surja Ram and his nephews Ram avtar and others for a number of years.

4. A formal FIR (Ex.P/7) was registered at police station, Udaipurwati under Sections 341, 323/34 IPC. Since injured Surja Ram succumbed to his, injuries on 2.6.90 in the hospital, the offence under Section 302 IPC was added. After usual investigation chargesheet came to be filed against five accused persons in the court of Judicial Magistrate, Navalgarh, who committed this case to the court of learned Sessions Judge, Jhunjhunu. Charges were framed against all the five accused persons under Sections 147, 302, in the alternative under Sections 302/149, 379 and 447 IPC. They pleaded not guilty and claimed trial. As many as 11 witnesses were examined on behalf of prosecution. The statements of the accused persons were recorded as provided under section 313 Cr.P.C. While denying the evidence of the prosecution, they stated that the witnesses have deposed on account of enmity. However, no witness was examined on behalf of accused.Having heard final submissions, learned Sessions Judge passed the judgment on 10.7.1995 as stated above.

5. We have heard learned counsel Sh. A.K. Gupta, learned Public Prosecutor Shri Rajendra Yadav and have scanned the entire material on record.

6. Now we proceed to consider the medical evidence PW4 Dr.Dinesh Choudhary the then Medical Officer, Referral Hospital, Udaipurwati, examined injured Shri Surja Ram on 28.5.1990, at about 7.30 a.m. and noted following injuries vide Injury Report Ex. P/4.

1. Swelling lower part with surgical emphysema 6"x4" on lower part right chest.

2. Fracture on 9th, 10th, 11th rib exclusive.

3. Compound fracture with lacerated wound 1"x 1/2" x 1/4" on left lower leg.

4. Lacerated wound 1/2" x 1/4" x 1/41 right lower leg.

According to Dr.Choudhary, all the injuries were caused by blunt weapon. Injuries.

Nos. 1,2, 3 where grievous in nature while Injury No. 4 was simple. The patient was in semi conscious condition. PW9 Dr.H.L.Bairwa, the then Medical Jurist, S.M.S. Hospital, Jaipur, conducted th