1. - This criminal appeal under Section 374(2), Criminal Procedure Code is filed against the judgment and order dated 18-6-2003 passed by Addl. Sessions Judge No. 2, Chittorgarh in Sessions Case No. 31/2002, State v. Balu, whereby the accused-appellant has been convicted under Section 304, Pt. II, Indian Penal Code and sentenced to 7 years' rigorous imprisonment and a fine of Rs. 500/-, in default thereof to further suffer one month's simple imprisonment.

2. Briefly stated, the facts giving rise to the present case are that on 30-3-2002 complainant-Ladu (P.W. 2) present at Parsoli Hospital gave oral information to the SHO, Police Station Parsoli to the effect that in the evening at 7 p.m. when he came at his house, he found Badri, Gokal, Balu, Kana, Bhagwana, Bhona alias Mukesh and Smt. Dali sitting in front of his house under a tree abusing his family members, who on his brother Kalu's asking not to do so, connived with each other and in order to kill him entered in the house unauthorizedly and started beating him by fists and kicks. On his intervention, Kana threw a stone on him also. Balu twisted the neck of his brother and on his crying when uncle Janu came running, Bhagwana threw a stone on his face. As the condition of Kalu became precarious, Bheru brought him to the Parsoli Hospital on motor cycle but before reaching the hospital he died. He further stated that there is an old enmity between his brother and the accused persons regarding some land and that is why the accused after conniving entered in the house unauthorizedly, gave beating to Kalu and by twisting his neck murdered him.

3. On this report, a case under Sections 142, 449, 302, 149, Indian Penal Code was registered and first information report was chalked out. The police inspected the site and prepared site-plan and site-inspection Memos. Pancha-yathnama of dead body was prepared and the post-mortem of the dead body was got done. The dead body after post-mortem was handed over to the heirs for cremation. Complainant Ladu and Janu alias Jankilal were medically examined and the statements of witnesses were recorded. The accused persons were arrested and after necessary investigation finding offence proved against accused Balu, Badri, Gokal, Kanalal, Bhagwanlal, Bhuna alias Mukesh and Smt. Dali, challan under Sections 147, 448, 302/149, Indian Penal Code was submitted before the Judicial Magistrate, Begun and on committal the case came up for trial to the Court of Addl. Sessions Judge No. 2, Chittorgarh.

4. The learned trial Court framed charges against accused-appellant under Sections 147, 448 and 302 or 302/149, Indian Penal Code. Accused denied the charges framed against them and claimed trial.

5. The prosecution in support of its case examined as many as 12 witnesses and rendered several documents in evidence. The accused in their statements under Section 313, Criminal Procedure Code denied the prosecution version and claimed themselves to be innocent. They stated that they have been falsely implicated in the case. In defence, they examined D.W. 1 Salvi and D.W. 2 Kana Bairwa and in documentary evidence exhibited six documents.

6. The learned trial Court after hearing both sides, convicted and sentenced the accused-appellant as stated hereinabove.

7. Aggrieved by the aforesaid judgment and order dated 18-6-2003 passed by Addl. Sessions Judge No. 2, Chittorgarh in Sessions Case No. 31/2002, State v. Balu , the present appeal has been filed.

8. I have heard learned counsel for the accused-appellant as well as learned Public Prosecutor and carefully examined the material available on record.

9. Learned counsel for accused-appellant contended that in this case there is no reliable evidence on record to prove the charges beyond reasonable doubt as no evidence has come on record to bring home the guilt against the accused- appellant. According to him the judgment of conviction and order of sentence suffers from material infirmities and the learned trial Court