1. - This appeal is directed against the judgment of conviction and order of sentence dated 13.08.1991 passed by the learned Additional Sessions Judge, No.1, Jodhpur in Sessions Case No.68/1987, titled as the State of Rajasthan v. Kailash Dan and Anr. , whereby appellant Kailash Dan was convicted for the offence under Section 326 IPC and sentenced him for 3 years' rigorous imprisonment with fine of Rs. 50, in default whereof to further undergo for 15 days' simple imprisonment. It was also ordered that the period for which appellant remained in custody during investigation and trial, same shall be adjusted in the principal sentence. Appellant Gulab Dan was convicted for the offence under Section 323 IPC and was released on probation for a period of one year on his executing a personal bond and surety bond for Rs. 5000/-.

2. From the perusal of the record of the learned trial court, it reveals that Mahendra Singh (PW-1) submitted a written report Ex.P/1 before the Station House Officer, Police Station, Shashtri Nagar, Jodhpur stating therein that on 23.03.1987, at about 10:45 AM, a she-goat belonging to him was being beaten by the sons of Jawahar Dan and he asked them not to do so. Thereafter Jawahar Dan, Kailash Dan, and Gulab Dan started pelting stones and when Dalip and his other brothers came out of house, abuses were hurled by the accused. Appellant-accused Kailash Dan went inside his house and brought a sword and inflicted a sword blow on the head of Dalip. Gulab Dan inflicted Lathi blow on the hand of Dalip and Jawahar Dan threw the stones towards him. When Mahendra Singh intervened, he was also hit by stone. The incident was witnessed by Praveen, Daulat Ram and Bharat Bhusan.

3. On the basis of this information, FIR No.61/1987 was registered for the offences punishable under Sections 307, 336, and 323 IPC at Police Station, Shashtri Nagar, Jodhpur and investigation was commenced. After investigation, charge-sheet for the offences punishable under sections 307, 323 and 325 read section 34 IPC was filed on 12.06.1987 before the learned Additional Chief Judicial Magistrate, No.1 Jodhpur. Since the offence under Section 307 IPC was exclusively triable by the Court of Sessions, therefore, learned Additional Chief Judicial Magistrate, after complying the provisions envisaged under Section 207 Cr.P.C., committed the case to the court of learned Sessions Judge, Jodhpur on 12.08.1987 as per the provisions of Section 209 Cr.P.C. Learned Sessions Judge assigned the case for trial to the learned Additional Sessions Judge, No.1, Jodhpur (hereinafter referred to as 'the learned trial court'). The learned trial court after hearing framed charge under Section 307 IPC against accused Kailash Dan and under Sections 307 read with section 34 and 323 IPC against accused Jawahar Dan and Gulab Dan for which they denied and claimed for trial.

4. To substantiate the charges against the accused prosecution examined as many as 12 witnesses and proved certain documents. Thereafter accused persons were examined under section 313 Cr.P.C. wherein they claimed prosecution evidence as false and stated that due to enmity they have been falsely implicated and didnt choose to lead defence evidence. After hearing the learned Additional Public Prosecutor and learned counsel for accused, learned trial court convicted the appellants-accused and sentenced as aforesaid. During course of trial accused Jawahar Dan was died.

5. Aggrieved by the impugned judgment of conviction and order of sentence appellants preferred this appeal before this court which was was admitted for consideration vide order dated 12.09.1991 and notice was issued to respondent State and record of trial court was called for.

6. Heard Mr. P. N. Mohnani, learned counsel for appellants accused and Mr. J.P.S. Choudhary learned Public Prosecutor and perused the impugned judgment and record of the learned trial court.

7. Mr. P. N. Mohnani, learned counsel appearing on behalf of appellants-accus