JUDGMENT :

Gurvinder Singh Gill, J.

1. Appellants Mehru Ram, Pyare Lal alias Dhola, Siri Chand and Rajinder Singh alias Raja assail judgment dated 09.11.2004 passed by Additional Sessions Judge, Sirsa and vide order dated 11.11.2004 they have been held guilty and sentenced as under:-

2. The matter arises out of FIR No. 144 dated 27.7.2002, Police Station Sadar, Dabwali, under Section 302 read with Section 34 of Indian Penal Code (Ex.PJ/2) lodged at the instance of Kalu Ram's statement (Ex.PJ) wherein it is alleged that he is a labourer by profession and that on 26.7.2002, at about 9.30 pm, when he along with his son Bansi Lal was returning home from the house of Rajinder son of Hari Ram, then they were waylaid in front of Siri Chand's house by Mehru Ram, Siri Chand, Pyare Lal alias Dhola and Rajinder Singh @ Raja, who all came out from the house of Siri Chand. Complainant alleged that Mehru Ram raised a lalkara exhorting his companions to kill the enemy pursuant to which Pyare Lal alias Dhola who was carrying a 'lathi' (stick), Siri Chand and Rajinder Singh alias Raja caught hold of Bansi Lal. Pyare Lal alias Dhola gave a blow with ' lathi' on head of Bansi Lal and resultantly blood started oozing out and he fell down. The complainant being scared ran from the spot and when he returned back with his wife and daughter Santosh, Bansi Lal was seen lying in a pool of blood. They lifted him and took him to their house where they kept him for the night and on the next day at about 10:00 am he was taken to Civil Hospital, Chautala from where he was referred to Civil Hospital, Dabwali where he succumbed to his injury. The complainant alleged that there was some previous enmity between him and his brothers Mehru Ram and Siri Chand since long and on account of which Bansi Lal had been killed.

3. Pursuant to lodging of FIR (Ex.PJ/2) the police got the post mortem examination conducted on the dead body and also visited the place of occurrence where rough site plan of the place of occurrence was prepared. A blood stained 'parna' (piece of cloth) was recovered from the place of occurrence which was taken into possession vide recovery memo Ex.PL. Statement of witnesses were recorded in terms of Section 161 Cr.P.C. Accused Mehru Ram was arrested on 28.7.2002, accused Pyare Lal alias Dhola was arrested on 01.8.2002 and accused Siri Chand and Rajinder Singh alias Raja were arrested on 05.08.2002. Upon completion of investigation a challan was presented against the accused in the Court of learned Sub Divisional Judicial Magistrate, Dabwali on 18.09.2002, who committed the case to the Court of Sessions vide order dated 10.10.2002. Charges were framed against the accused for offence punishable under Sections 302 read with Section 34 of IPC by learned Additional Sessions Judge, Sirsa on 13.11.2002 to which accused pleaded not guilty and claimed trial.

4. The prosecution in order to substantiate its case examined as many as 11 PWs, the gist of whose testimonies is being briefly referred to herein under:-

PW-1-HC Jaibir Singh stated that on 27.7.2002 while he was posted at Police Station Sadar, Dabwali, he received a ruqa Ex.PA (intimation) from Medical Officer, General Hospital, Chautala regarding admission of Mehru Ram. He went to the hospital and he came to know that Mehru Ram already left to hospital against medical advice and his statement could not be recorded.

PW-2-Constable Raghubir Singh who is a formal witness tendered his affidavit Ex.PC in evidence wherein he deposed that on 12.08.2002 MHC Rameshwar Dass handed over three parcels i.e. a parcel containing blood stained cloth, parcel containing clothes of deceased Bansi Lal and a parcel containing stick and directed him to deposit the same in the office of FSL, Madhuban, Karnal, which he accordingly deposited on the next day and that as long as the said parcels remained in his custody the same were not tampered with.

PW-3-Dr. Gopal Kishore stated that on 26.7.2002 he had conducted medico legal exam