1. - Of these matters, Criminal Appeal No. 272/2005 has been filed by accused-appellants, namely, Ramkumar and Harikishan, which seeks to challenge judgment and order of learned Additional Sessions Judge (Fast Track) Kishangarhbas, District Alwar, dated 28.01.2005 in Sessions Case No.49/2003, by which they were convicted for offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced to life imprisonment with fine of Rs.2000/- each, in default of payment of which, they were further directed to further undergo one year's rigorous imprisonment.

2. Facts leading to present appeal are that one Pyarelal submitted a written report on 08.12.2002 to Station House Officer, Police Station Khairthal, Alwar, alleging therein that in the morning of 08.12.2002 at about 6.30 Hrs., he, i.e. the informant, Phoolsingh, Lalaram, Gangaram, Chandram and Ramesh. were going from village Sorkha Khurd to Khairthal for selling their tomato-crop; on the road they were intercepted by Sohanlal, Ramchandra, Harikishan, Ramkumar, Lajja, Anaro, Bimla, Kamla; who were armed with 'lathis', 'pharsis' and 'chantia', started beating them. Complainant had ten thousand rupees with him, which were also snatched by them. All injured were hospitalized in Government Hospital, Kishangarhbas. Action be taken against culprits.

3. Police on the basis of aforesaid written report, chalked out a regular First Information Report No.277/2002 for offence under Sections 143, 341, 323 and 379 IPC. During treatment, Phulu @ Phoolchand died on 11.12.2002. Thereafter offences under Sections 302/149, 147 and 148 IPC were also added thereto.

4. Police, after investigation, filed challan against accused-appellants and five more accused, namely, Sohanlal, Ramchandra, Bimla, Anaro and Lajja for offence under Sections 302, 341, 323, 147, 148 and 149 IPC. Since the police did not find any offence against accused Kamla, charge-sheet was not filed against her. Charges against all seven accused were framed for offence under Sections 147, 148, 341, 323, 302 read with 149 IPC. Accused denied the charges and claimed to be tried.

5. One of accused Smt. Lajja W/o Sohanlal died during trial and therefore proceedings against her were dropped vide order dated 27.01.2005, therefore trial proceeded only against six accused.

6. Prosecution, in support of its case, examined as many as 22 witnesses and exhibited 42 documents, whereas defence examined one witness, namely, DW-1 Dr. Raghuvar Dayal Madhaiya and exhibited 20 documents.

7. Learned trial court, after conclusion of trial, acquitted four accused, namely, Sohanlal, Ramchandra, Smt. Bimla and Smt. Anaro, and convicted accused-appellants, namely, Ramkumar and Harikishan and sentenced them in the manner indicated above. Hence, Criminal Appeal No.272/2005.

8. Apart from Criminal Appeal No. 272/2005 filed by accused Ramkumar and Harikishan against their conviction, the State of Rajasthan has filed Criminal Appeal No.721/2005 with the leave of the court against acquitted accused, whose acquittal has also been challenged by complainant in Revision Petition No.176/2005.

9. Since all these matters arise out of a common judgment and order, they were heard together and are being decided by this common judgment.

10. We have heard Shri Biri Singh Sinsinwar, learned senior counsel for accused-appellants, Shri J.R. Bijarnia, learned Public Prosecutor for the State and Shri Gurvinder Singh, learned counsel for complainant/revisionist, and perused the material on record.

11. Shri Biri Singh Sinsinwar, learned senior counsel for accused-appellants, argued that from site plan Exhibit P-7 (prepared in FIR No.277/2002 of complainant) and site plan Exhibit D-14 (prepared in cross FIR No.278/2002 of accused) it is proved that incident had taken place in front of house of Sohanlal, a member of accused-party, who has been acquitted by learned trial court. Evidence in present case also shows that it is complainant-party, which was aggressor and cam