1. - The instant cr. appeal has been filed by the accused appellant Dev Raj under Section 374(2) of the Cr.P.C. against the judgment dated 2.8.1991 passed in Sessions Case No.4/91 whereby the accused appellant was convicted under Section 304 Part II and under Section 325 IPC and following punishments were awarded against him:

"Under Section 304 Part II IPC : 3 years RI and to pay a fine of Rs. 5,000/- and in default of payment of fine to further undergo 6 months SI

Under Section 325 IPC : 3 years RI and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo 3 months SI."

2. As per the facts of the case the statement of PW-1 Khuba Ram were recorded in the hospital by constable PW-6 Om Prakash upon that FIR No.203/90 (Ex.P/1) was registered at Police Station Purani Aabadi, Sri Ganganagar under Section 307/325 and 323/34 IPC against the appellant and other three persons in which an allegation was leveled by the complainant PW-1 Khuba Ram that in the evening of 7th Nov., 1990 at about 8.30 p.m. when he was standing upon the street in front of Chhabara Flour Mill, the appellant was passing through the way, at that time, the complainant PW-1 Khuba Ram raised objection because he was visiting the house of bad persons living in the area. The appellant Dev Raj felt annoyed and after some time, came back with two more persons whose identity was not known they were having Lathis in their hands and appellant was having Gandasi in his hand. According to the prosecution case, the appellant gave blow by Gandasi with the bulnt side on his foot and due to said injury a fracture was caused on the foot. Thereafter, upon intervention by one Hansraj, a Gandasi blow was given on his hand by the appellant and other persons also caused injury by Lathi upon complainant PW-1 Khuba Ram and deceased Hansraj. At the time of occurrence, Smt. Kamla, Ram Lal and Chand Lal came there for rescue, but all the three persons including the accused appellant Dev Raj ran away from the place of occurrence. The injured Hansraj became unconscious due to the injury inflicted upon him, therefore, he was taken to the hospital for treatment. In the hospital, both the injured were medically examined and injury report (Ex.P/3) of PW-1 Khuba Ram was prepared on 7.11.1990 on 10.45 p.m. in which 5 injuries were found and the injury report (Ex.P/5) of the deceased Hansraj was also prepared on 7.11.1990 itself in which 4 injuries were found upon his body, unfortunately, Hansraj died on next day, therefore, post mortem was made on 8.11.1990 in which the medical jurist gave its opinion in the reprot (Ex.P/7) that cause of death was head injury.

3. Due to death of Hansraj, the police added Section 302 IPC and after investigation filed challan against 4 accused persons Dev Raj (present appellant), Mahendra Kumar, Baljinder Singh @ Pappu @ Bharpur Singh and Ms. Mahendro W/o Jangir Singh.

4. During investigation, Gandasi was recovered as per the information given by the present appellant and two Lathis were recovered and upon information given by the accused Mahendra Kumar and Baljinder Singh. The challan was filed in the court of Chief Judicial Magistrate, Sri Ganganagar from where the case was committed to the court of Sessions Judge, Sri Ganganagar for trial. The Trial Judge framed charge against the accused appellant under Section 302, 307, 325 and 323 IPC and proceeded to conduct trial.

5. In the trial statements of 17 prosecution witnesses were recorded and thereafter, statements of all the accused persons were recorded under Section 313 Cr.P.C. but in spite of granting opportunity no witness was produced by the accused appellant in defence.

6. The learned Sessions Judge after hearing final arguments acquitted the accused Mahendra Kumar, Baljinder Singh and Ms. Mahindro from the charges leveled against them but held accused appellant Dev Raj guilty for offence under Section 304 Part II and 325 IPC and passed the sentence aforesaid.

7. In this appeal, t