VIJAY KUMAR VYAS, J.

1. Appellant–Sua has died during pendency of this appeal, as such, the appeal to his extent stands abated.

2. The appeal has arisen out of judgment dated 21.3.1985 rendered by learned Sessions Judge, Tonk in Sessions Case No.31/1984, whereby the appellant Kailash for offence u/s 302 IPC and appellant Sua for the offence u/s 302/34 IPC were convicted and each was sentenced to undergo life imprisonment and to deposit Rs.500/- as fine, in default of payment thereof, to further undergo six months' rigorous imprisonment.

3. Brief facts of the case are that Ram Sahay (PW-5) submitted a written report (Ex.P-1) to SHO, Police Station Uniara on 27.9.1984 at about 8.30 PM to the effect that on the very day, his father – Bajranga Jat (deceased) went forest to graze cattle. At about 3.00 PM, Badri (PW-2), Ram Phool (PW- 3) and Bhairu Lal (PW-4) brought his father in unconscious condition on a bullock cart. Ram Sahai (PW-5) was also with them. Badri told him that on entering the cattle in agricultural field of Sua, at about 2.00 PM, Sua and Kailash gave his father – Bajaranga a severe beating with sticks. Kailash also strangulated neck of the deceased with his two hands. At the very moment, they reached there. Accused left his father, assuming him to be dead, saying that he was damaging our crop by cattle, we have finished him today. Bajranga was brought to Uniara on camel cart but he died on the way. On this information, formal FIR No.91/1984 (Ex.P-2) was registered. Site was inspected by police. Postmortem was conducted. Accused were arrested. On information, lathis (sticks) were recovered by police. After due investigation, charge-sheet for the offence u/s 302 and 302/34 IPC was filed against Kailash and Sua before learned Chief Judicial Magistrate, Tonk. On commitment, learned trial court framed charges for offence u/s 302 IPC against accused Kailash and u/s 302/34 IPC against accused Sua. Both the accused denied the charges and sought trial. Prosecution examined 10 witnesses and exhibited 22 documents. Accused were examined u/s 313 Cr.P.C. They denied the evidence adduced by prosecution. Accused Sua stated that he was not at the place of occurrence at the time of incident and he is innocent, whereas accused Kailash stated that he was just 17 years old at that time. When he was ousting cattle of Bajranga, the latter threw stones, which hurt him. He has submitted transfer certificate (Ex.D-5) issued by Government School, Kakod, District Tonk. No witness was examined on behalf of defence. But, five documents were exhibited. After hearing arguments, learned trial court passed the judgment impugned and convicted and sentenced the appellants, as stated herein above.

4. Learned counsel for the appellant submitted that all the eye witnesses Badri (PW-2), Ram Phool (PW-3) and Bhairu Lal (PW-4) are close relatives of the deceased. Their evidence is doubtful and is not in consonance with medical evidence. The conviction based on testimony of such witnesses, cannot be upheld. Prosecution has failed to prove the motive or any previous enmity. All the injuries mentioned in Ex.P-7 postmortem report, found on the dead body of Bajranga, were simple in nature. As per opinion of Dr. Subhash Chand Jain (PW-6), such injuries may occur due to fall. None of them are on any vital part of the body.

5. Learned counsel further submitted that as per prosecution, the occurrence took place at spur of the moment. Appellant Kailash was aged about 17 years and it is alleged that he only caught hold neck of the deceased. Absence of motive or prior enmity and looking to the age of the accused, it will be too much to attribute the intention to commit murder towards this accused. The young accused could not have even knowledge that his act was going to cause death. At the most, he could be punished u/s 325 IPC or 304 Part II, IPC.

6. Per contra, learned Public Prosecutor submitted that when there was no prior enmity, there was no occasion to impu