SANDEEP MEHTA, J.

1. Cr. Appeal No. 398/2009 has been preferred by the accused-appellant Narendra Kumar under Section 374(2) Cr.P.C. against the judgment dated 09.04.2009 passed by learned Additional Sessions Judge, Sangaria, Hanumangarh in Sessions Case No. 85/2002 whereby, he was convicted for the offence under Section 302 I.P.C. and was sentenced to imprisonment for life with a fine of Rs.1,000/- and in default of payment of fine, to further undergo two months’ additional imprisonment.

2. Cr. Appeal No. 627/2009 has been preferred by the State of Rajasthan for challenging the acquittal of the accused Khayali Ram and Lila Ram from the charge under Sections 302, 302/34 IPC recorded by the learned Additional Sessions Judge, Sangaria, Hanumangarh vide the very judgment by giving them the benefit of doubt.

3. The prosecution case originates from the written report Ex. P-1 submitted by P.W. 1 Raghuveer Singh on 25.07.2002 at about 8:45 p.m. to the Circle Inspector, Police Station Sangaria alleging inter alia that a couple of days ago, his nephew Sonu had quarrelled with Narendra Kumar @ Khema Ram S/o. Gopi Ram Jat, resident of Bhakaranwali, Hanumangarh owing to an issue of ‘Khala’ (water channel). Narendra threatened that he would kill Sonu. On 25.07.2002 at about 3 o’clock, Sandeep (P.W.3) and his aunt Smt. Saroj (P.W.2) went to the field for giving tea to Sonu. They were at a distance of about one bigha short of their field, when they saw Narendra armed with a gandasa, his maternal uncle Khayali Ram armed with a Kasiya and his Bhua’s son Lila Ram armed with a kapa assaulting Sonu, who was lying prone on a cot. All three were raining blows upon Sonu with the weapons held by them. Sandeep and his aunt Saroj raised a hue and cry on which the assailants fled away. When Sandeep and Saroj checked Sonu, they saw a large number of injuries on his head and he had passed away. Both returned home and told the informant about the incident. On the basis of this report, an FIR No. 513/2002 was registered at Police Station Sangaria for the offence under Section 302/34 IPC and investigation was commenced. The dead body of Sonu was subjected to postmortem by a Medical Board which issued a postmortem report (Ex. P-10) mentioning presence of five cut wounds all over the skull of the deceased with brain matter coming out. The Medical Board opined that these injuries resulted into excessive bleeding and shock, leading to the death of Sonu. The Investigating Officer, arrested the accused appellant Narendra Kumar @ Khema Ram and recovered a blood stained gandasa on the basis of the information supplied by him under Section 27 of the Evidence Act. Upon conclusion of the investigation, the accused Khayali Ram and Lila Ram were exonerated and a charge sheet was filed only against the accused Narendra Kumar for the offence under Section 302 IPC.

4. Since the offence was Sessions triable, the case was committed to the Court of Sessions Judge, Hanumangarh, from where, the same was transferred for trial to the Court of Additional Sessions Judge, Hanumangarh. The trial court framed charges against the accused-Narendra Kumar for the offences under Sections 302, 302/34 of the I.P.C. who pleaded not guilty and claimed trial. The prosecution had examined as many as 6 witnesses whereafter, an application came to be filed under Section 319 Cr.P.C. which was accepted by the trial Court and the left out accused Khayali Ram and Lila Ram who were not charge-sheeted by the investigating agency were summoned to face trial with accused Narendra Kumar. Upon their appearance in the court, charges were framed against these two accused in the same terms as were framed against Narendra Kumar. They also denied the charges and claimed trial. Statements of six witnesses examined previously were recorded afresh and five more witnesses were examined for the first time by the prosecution. The accused were questioned regarding the circumstances appearing against them in the pr