Honble BALI, J.–In this appeal, that has been filed by Narendra Kumar @ Nagin who was tried with his co-accused Shankarlal & Rajesh, since acquitted, two fold contentions that have been raised by the learned counsel for the appellant are that no reliance can at all be placed upon the alleged eye- witnesses and therefore, Narendra Kumar @ Nagin like his co- accused named above ought to have been acquitted. If however, this Court might find statements made by eye-witnesses to be inspiring confidence then Narendra Kumar @ Nagin could at the most be convicted under section 304 Part II IPC.

(2). With a view to appreciate the contention of the learned counsel as noted above it will be necessary to take into consideration back drop of the events leading to death of..................murder Narendra Kumar @ Nagin, after trial was held guilty for offence under section 302 IPC and sentenced to undergo Rigorous Imprisonment for Life as also to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo Simple Imprisonment for three months. The appellant has also been convicted under section 323 IPC and sentenced to undergo Simple Imprisonment for a period of one year. The order of conviction and sentence as mentioned above was passed against the appellant by the learned Addl. Sessions Judge (Fast Track), Ajmer on 25.7.2001.

(3). The prosecution version was unfolded by Sunderlal Khatri PW1. While lodging FIR on 28.9.99 at 11.00 AM in the hospital itself he stated that he was residing in Ram Nagar. Yesterday on 27.9.99 at night he was at his home. His brother Mukesh Kumar @ Munna was also residing with him in the home. His elder brother Thakur Das came to his home at 10:00 PM at night. He was bleeding from mouth. He told him that 4-5 persons had given beating to him. On hearing him, he alongwith his brother Thakurdas, another brother Mukesh went to Siv Nagar, Shakti Colony. They were told on the way that Shankar, Nagin & Rajesh had given beating to Thakurdas. All three brothers had gone to counsel upon Shankar and others at the house of Nagin. When they had reached at the house of Ramesh the lights went off all of a sudden. His son Vivekanand @ Manoj had also come behind them. Because of darkness Nagin gave a blow with an iron rod (Sariya) because of which his head was torn. When he had just regained his balance Nagin gave an iron rod blow on the head of his brother Mukesh, because of which he became unconscious at the spot. Before they could defend themselves Shankar & Rajesh together caught hold of them. At that time Laxminarain, Rajesh S/o Kashisha and other persons of community had also come there. These people, lifted his brother Mukesh to the house of Laxminarain. When, however, he did not regain consciousness he was taken to hospital where his medical treatment was continuing. His brother died today on 28.9.99 at 11.00 AM. He further stated that he had not got his statement recorded earlier being a person of the community.

(4). The facts brought on record reveal that the occurrence leading to death of Mukesh had taken place on 27.9.99 at 10: P.M. whereas the FIR as mentioned above was lodged by his brother Sunderlal PW1 at 11:00 AM on 28.9.99. The statement was recorded by Nirmal Sharma PW9 SHO of the Police Station. The special report (Ex.P13) with regard to the incident reached the concerned authorities on 28.9.99.

(5). With a view to bring home the offence against the appellant and his co-accused Shankarlal & Rajesh, since acquitted, prosecution examined Sunder Lal Khatri as PW1, Laxmi Narayan as PW2, Thakur Das as PW3 and Manoj Kumar as PW4. All these witnesses claimed to have seen the occurrence themselves. Pooran Singh examined as PW5, had only carried articles to the Forensic Science Laboratory. Dr. Nand Lal Hiranandani examined as PW6, had conducted post-mortem on the dead body of Mukesh. Bhawani Singh Rathore examined as PW7, had registered an FIR against the appellant and two others named above. Dr. R.N. Math

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