Hon'ble RATHORE, J.—Both the appeals are being decided together as they arise out of the judgment dated 26th March, 1983 passed by the learned Sessions Judge, Bharatpur.

The learned trial Court had passed the impugned judgment in Sessions Case No. 80/1982, wherein he had held trial against five persons, namely; Mohkam Singh, Shri Chand, Birbal, Rupan and Saheb Singh and on conclusion of the same, he acquitted Rupan and Saheb Singh of all the charges levelled against them. The accused Mohkam Singh, Shri Chand and Birbal were also acquitted of the offences under Section 302 and 302 read with 149 IPC. But the said accused persons were convicted for the offences under Section 325 read with 34 IPC and sentenced for four years rigorous imprisonment and a fine of Rs. 2,500/- each, in default of payment of which to further undergo three months rigorous imprisonment. It is to be noted that the learned trial Court had ordered for giving the amount of fine of the victim and also directed Smt. Safedi (PW.2) to deposit an amount of Rs. 5,000/- in a nationalised bank, in favour of her daughter for future means of livelihood. The rest of the amount of fine was to be taken by Smt. Safedi herself.

2. Being aggrieved of the aforesaid judgment passed by the learned trial Court, the State of Rajasthan has preferred appeal (54/1984) against the accused Rupan and Saheb Singh for their acquittal of all the charges and against Mohkam Singh, Shri Chand and Birbal for their acquittal in respect of the offence under Section 302 read with 149 IPC. The accused Mohkam Singh, Shri Chand and Birbal have preferred the other appeal (151/1983) against their conviction and sentence passed by the learned trial Court for the offence under Section 325 read with 34 IPC.

3. At the very out set, the learned public prosecutor has informed the court that accused Shri Chand son of Devi Singh had died during the pendency of these appeals. Therefore, the appeal filed by the accused-appellant Shri Chand as well as against him by the State of Rajasthan stands abated.

4. In short, the facts of the prosecution case are that a report came to be lodged at police station Sevar on 28th May, 1982 by one Than Singh, ASI. In the said report, a mention was made about rapat No. 879 dated 28th May, 1982, timed 12.00 a.m. and that on a marg information report No. 47/1982 being registered under Section 174 Cr.P.C., Than Singh ASI along with Prahlad Singh, constable No. 1255 and Shanker Lal constable No. 892 had gone for investigation where it was found that deceased Raghunath Singh was living separately, for last three years from his father and brothers. The in-laws of Devi Singh, the father of the deceased, had lived in village Atus District Agra. Smt. Rumali, the material grand mother of the deceased, had no son and as such, she also shifted to village Bharangarpur and started living there. Some time ago, she had sold her land situated in the village Atus and she was having the sell amount with her at Bharangarpur. Raghunath Singh deceased had asked his father and brother to give him share from the said amount, which they refused. They had in turn asked him to give-up him claim over 2 bighas of land which was given to him by Devi Singh and then only he would be given a share from the aforesaid money. On account of this, there was enmity between the deceased, his father and brothers.

It was further averred in the report that on 15th May, 1982, the deceased Raghunath Singh and his wife Smt. Safedi had gone to plough their field. On that day, at about 3.00 pm, Mohkam Singh, Shri Chand, Birbal, sons of Devi Singh, and Rupan and Saheb Singh sons of Mohkam Singh came, duly armed with lathis and asked the deceased not to plough the field. They also started bearing him. Smt. Safedi then raised a hue and cry. Thereafter, the accused persons left for their village which was nearby. The deceased returned to his house and then went to village Ghushiyari for getting medical treatment to the injuries sus

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