Honble SINGH, J.–In this appeal the appellant has challenged the judgment dated 23.7.2003 passed by learned Additional District and Sessions Judge (Fast Track), Behror (Alwar), in Sessions Case No. 76/2002 State vs. Kuldeep Singh, whereby he was convicted and sentenced as under:-

Under Section 302/34 IPC

= To suffer imprisonment for life and fine of Rs. 1000/- in default to further suffer simple imprisonment for three months.

Under Section 323/34 IPC

= To suffer rigorous imprisonment for six months and fine of Rs. 200/- in default to further suffer simple imprisonment for one month.

Both the sentence were ordered to run concurrently.

(2). It is the prosecution case that injured Mahendra Singh s/o Ram Singh, r/o Tasingh, reached to the Police Station Behror at 8.40 a.m. on 29.3.2001 and submitted a written report (Ex. P.6), to the effect that is brother Vishal Singh, who resided at village Tonkani had come to see fair. Their brothers son had constructed a wall and fixed gate in the common space meant for passage. On being objected to it, Kuldeep Singh and Ghanshyam Singh alias Pradeep Singh, inflicted injuries upon them with an iron rod and an axe and as the condition of Vishal Singh was serious, he was first admitted in the hospital at Behror and then the report was lodged. On receipt of the report, a case under Sections 323, 341, 34 IPC was registered and formal first information report Ex. P. 7 was chalked, showing intervening night of 28th and 29th March 2001, as the date of incident. On being inquired, the informant further disclosed that the doctors at Behror referred injured Vishal Singh to Alwar and, therefore, Vishal Singh was taken to Alwar at 4 a.m. before the report could be lodged.

(3). On this report, the investigation commenced and the injured Vishal Singh succumbed to the injuries at S.M.S. Hospital, Jaipur, on 8.4.2001 at 5 a.m. After usual investigation, charge sheet was filed under Sections 302, 323/34 IPC. The absconding co-accused Ghanshyam Singh alias Pradeep Singh was requested to be proceeded under Section 299 Cr.P.C. In due course, the case came up for trial before the Additional Sessions Judge (Fast- Track) Behror, Alwar. Charges under Sections 302/323 read with Section 34 IPC were framed against the accused Kuldeep Singh, who denied the charges and claimed trial.

(4). The prosecution examined as many as sixteen witnesses. In the explanation under Section 313 Cr.P.C. the appellant claimed innocence and explained that in fact Mahendra Singh, Vishal Singh and Sunder Singh, had come to his house and assaulted him. In defence, no witness was examined. Learned trial Judge, on hearing final submissions convicted and sentenced the appellant as indicated herein above.

(5). We have heard the submissions of learned counsel for the appellant and learned Public Prosecutor and with their assistance scanned the material on record.

(6). As per the Post Mortem Report (Ex. P. 14) the following ante mortem injuries were found on the person of the deceased:-

(1) Abrasion 1 cm x 3/4 cm with dry, dark black hard scab formed outer angle (Rt. Eye).

(2) Bruise 2 cm x 3/4 cm Rt.Elbow dorsum ulnar side violet greenish in colour.

(3) Bruise 4 cm x 1 cm (Rt.) anterior flee (superior) spine region.

(4) Bruise (Abraded) in area 4 x 4 cm region 4 cm below the injury No. 3.

(5) Bruise 19 cm x 4 cm commencing from Lt. Flee exterior region extending laterally and posteriorly in lumber region placed horizontally.

(6) Bruise 9 cm x 4 cm placed vertically over injury No. 5 in lt. Lumber region posteriorly.

(7) Abrasion 1 cm x 3/4 cm x muscle Deep (Lt.) Flee exterior region.

(8) Multiple bruise of size 4cm x 1.5 cm to 2 cm x 1/2 cm (Lt.) pelvic region over anterior superior flee spine and area below it, all horizontally placed.

(9) Bruise 3 cm x 1 cm (Lt.) elbow dorsum.

(10) Bruise 6 cm x 2cm part of neck and Lt. Side Neck, horizontally placed.

(11) Bruise 6 cm x 3/4cm lt. Side neck horizontally placed (Faint)

In the opinion of Dr. D.K. Sharma (PW. 12), the cau

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