1. - Heard the learned Amicus Curiae for the appellant as well as learned Public Prosecutor.

2. This jail appeal, registered under Section 383 Cr.P.C., is preferred to question the correctness of the judgment dated 4-9-2004 passed by the learned Additional Sessions Judge, Fast Track, Dungarpur in Sessions Case No. 14 of 2004, State v. Mohan , convicting the accused-appellant - Mohan S/o Lalji Koted Meena, r/o Deval Pal Phala Kandla for the offence punishable under Sections 302 and 323 I.P.C. and sentenced him for offence under Section 302 I.P.C. to undergo life imprisonment, along with fine of Rs. 5000/-, in default of payment whereof to further undergo one year's imprisonment and for offence under Section 323 I.P.C. - to undergo one year's rigorous imprisonment, along with fine of Rs. 1000/-, in default of payment whereof to further undergo 3 month's simple imprisonment while acquitting him from offence under Section 341 I.P.C.

3. In brief, the facts of the case, as per statement of PW-2 Prakash S/o Nathu Ninama (injured), are that on 2.12.2003 Prakash left his house for proceeding to Ahmedabad for doing labour but at Kherwada Raju S/o Mohan Koted met him, who proposed that both will go to Ahmedabad tomorrow morning and today, Prakash should accompany to his house. In the morning of 3.12.2003, they left for going to Ahmedabad but Raju made him wandering in the town of Kherwada and again brought back to his house. In the evening, Shanti - brother of Prakash, upon coming to know that he has not gone to Ahmedabad and is staying at Raju Koted's house, came at Raju's house to bring him along back to home.

4. In the night of 3.12.2003 at around 8 PM, when both the brothers (Prakash and Shanti) were returning towards their home from Raju's house, Raju S/o Mohan Koted and Mohan S/o Lalji Koted (accused-appellant) came running after them. Mohan was armed with an axe while Raju was having stones in his hand. Mohan inflicted axe blow on head of Shanti, whereby he fell on the ground and then Raju hit him with stones. As Prakash tried to escape, Mohan inflicted axe blow on his left shoulder and elbow and Raju hurled stones, which hit upon his back-neck and near right eye. Thereupon, Prakash raised hue & cry to his uncles, alarming about the assault and calling them for help. His uncles Ramesh and Babu Lal rushed to them, thereupon both Raju and Mohan fled away.

5. On account of injury, blood was draining from head of Shanti, whom both his uncles carried to Dungarpur hospital on motorcycle. At Dungarpur, doctor referred the case for Udaipur. While Prakash, his father and both uncles were carrying Shanti to Udaipur in a jeep, in the way Shanti succumbed to the injuries and died near Kherwada at around 2:30 PM in the night. Thereupon they returned to Dungarpur hospital, dead body of Shanti was placed in mortuary and Prakash was admitted to the hospital for treatment of the injuries sustained by him.

6. On the basis of oral report (Ex.P-2) by injured Prakash S/o Nathu Ninama,, while under treatment at Dungarpur hospital, on 4.12.2003 at 9:05 AM Police registered F.I.R. No. 185/2003 (Ex.P-4) against both named accused persons Raju S/o Mohan Koted and Mohan S/o La1ji Koted, for commission of offence under Sections 302, 341, 323 & 34 I.P.C.

7. After due investigation, Police filed separate challan against accused Mohan, alleging him guilty of offences punishable under Sections 341, 323 and 302 I.P.C. The accused Raju S/o Mohan Koted, being minor, separate challan was filed against him before Juvenile Court, Dungarpur, where vide order dated 20.8.2008 he was convicted under Sections 302/34, 341/34 I.P.C. However, upon appeal, Sessions Judge, Dungarpur vide order dated 16.7.2011 set aside his conviction by extending him benefit of doubt and released him on bail under Section 437A I.P.C.

8. Charge of offences under Sections 341, 323 and 302 I.P.C. was framed against the accused-appellant Mohan, who denied the allegation of crime and claimed tria