1. - Learned Additional Sessions Judge (Fast Track) No.2, Bikaner, by the judgment impugned dated 27.6.2005 convicted and sentenced the accused appellants as under:-

Accused Dhanna Ram -

Under Section 302 I.P.C. - Life imprisonment with a fine of Rs. 1000/-and further to undergo one month's additional imprisonment in the event of default in payment of fine.

Accused Ram Pratap -

Under Section 302/34 I.P.C. - Life imprisonment with a fine of Rs. 1000/- and further to undergo one month's additional imprisonment in the event of default in payment of fine.

2. In brief, facts of the case are that on 6.11.2003, an oral information given by Shri Sunil (PW-4) at Police Station Sadar, Bikaner, was reduced in writing. As per the facts stated by Shri Sunil, he along with his Taau Khyaliram, Taai Majam, Mama Balbir, Mami Ita, their daughter Anjali and sister Arti came to Bikaner from Jodhpur for selling pen. They all were staying near Indra fountain in public park Bikaner. On 6.11.2003 at about 10:15 PM Smt. Majam made an alarm that some man was doing some mischief with the bed of Smt. Ita. It was found that a man having 'tilak' on his forehead was standing near the bed. On being instructed and pushed he proceeded towards the temple. The man after some time returned along with two other persons and started abusing. A 'kulhari' blow was given to Shri Khyaliram by a person accompanying the first man. All the three persons fled from the spot immediately thereafter.

3. During the course of investigation, an autopsy was conducted on the /person of Khyaliram and as per its report Ex.P-1 the cause of death was coma due to antemortem injury to skull and brain that was sufficient to cause death in ordinary course of nature. The single injury found on the corpus of Khyaliram was as under:-

"Lacerated wound 4 x 1/2 cm x scalp deep behind right ear oblique on occipital region, caused due to hard and blunt impact, and fresh in duration at time of death".

4. On 10.3.2004, the investigating agency arrested accused Dhanna Ram and Ram Pratap. On basis of the information given by accused Dhanna Ram an iron rod (axle) was recovered as per document Ex.P-2 on 19.3.2004. On the same day a 'kulhari' was recovered at the instance of Ram Pratap and memo of that is available on record as Ex.P-4. Two police personnel viz. Mahavir Prasad Singh (PW-6) and Shrawan Ram (PW-2) were the attesting witnesses of the recoveries made as per documents Ex.P-2 and Ex.P-4. Accused Dhanna Ram and Ram Pratap were identified by Smt. Majam (PW-5) and Sunil (PW-4).

5. After completing the investigation a police report was filed before the Court competent and after hearing the accused persons they were charged for commission of offence punishable under Sections 302 and 302/34 Indian Penal Code. On denial of the same, trial commenced as desired.

6. The prosecution supported its case with the aid of 10 witnesses, out of whom Sunil (PW-4), Majam (PW-5), Anita @ Ita (PW-7) and Arti (PW-8) were cited as eye witnesses. Shri Rahul Yadav (PW-10) being Investigating Officer narrated all the steps taken during the course of investigation. Dr. Rahul Jain (PW-1) adduced medical evidence.

7. While availing opportunity to explain adverse and incriminating circumstances against them in prosecution evidence, the accused termed the entire evidence concocted and pleaded their false implication in the case concerned. They also stated that their identity was disclosed at Police Station to the witnesses Smt. Majam and Sunil before going to process of identification.

8. Learned Trial Court after examining the evidence available on record and considering the rival submissions recorded conviction of accused Dhanna Ram for the offence punishable under Section 302 Indian Penal Code and of accused Ram Pratap for the offence punishable under Section 302/34 Indian Penal Code.

9. In appeal, the argument advanced by learned counsel for the appellants is that the evidence relating to recoveries made at the instance of acc