(Per: V.K. Bist, J.)

This Jail Appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against the judgment and order dated 31.08.2012, passed by Sessions Judge, Tehri Garhwal, in Sessions Trial No. 02 of 2012, whereby said court has convicted accused/appellants Roshan Lohar and Shyam Munda under Section 302/34 I.P.C., sentenced them imprisonment for life and directed to pay fine of ‘ 2,000/- each, in default of payment of fine the convicts are directed to undergo rigorous imprisonment for a further period of one year.

2. Heard learned Amicus Curiae for the appellants, learned Addl. Advocate General for the State, and perused the lower court record.

3. Prosecution story, in brief, is that on 28.10.2011, P.W.1 Kishore Chand made a written complaint to the Station Officer Narendra Nagar, District Tehri Garhwal, with the assertion that in village Udkhanda, he has taken rosin contract from the Forest Department for which he use to engage labour. He is tenant of Hoshiyar Singh S/o Tua Singh Negi resident of village Pipleth. He reported that on 27.10.2011, his three labourers, namely, Ratiya S/o Suren Ram, Roshan Lohar S/o Suprem Lohar and Shyam Munda S/o Sunil Munda, all residents of Central Department, Basra Division Tea Estate, Post Pana Basti, Jalpai Gudi, West Bengal came to his residence in the night. He was cooking food in the kitchen. Meanwhile, at about 09:30 p.m., he heard some noise coming from the adjoining room. He went there and saw that on some pretext, accused/appellants were beating Ratiya(deceased). Both were having sticks in their hands and were beating Ratiya on his head and face. He tried to interrupt, but they pushed him out. Both the assailants took his mobile as well as sticks (used in crime) with them and fled away. After their parting, he saw that Ratiya was dead. Due to night and due to fear of attackers as well as of wild animals, he could not report the matter in the night. In the morning, he informed the same to his known and thereafter, he went to the police station. On the basis of said written complaint, F.I.R. was lodged on 28.10.2011 at 10:10 a.m. and Crime No.8 of 2011 was registered in respect of offence punishable under Section 302 I.P.C. against accused/appellants Roshan Lohar and Shyam Munda. They were arrested on 28.10.2011 about 11:45 a.m. near ticket window of Railway Station, Rishikesh. Investigation was taken up by P.W.6 S.O. Om Veer Singh, who interrogated the witnesses and started investigation. After completion of investigation, the said Investigating Officer submitted charge sheet against the accused/appellants Roshan Lohar and Shyam Munda, for their trial in respect of offences punishable under Sections 302 I.P.C.

4. The Chief Judicial Magistrate, Tehri Garhwal, on receipt of the charge sheet, committed the case to the court of Sessions for trial. The learned Sessions Judge, Tehri Garhwal, framed charge of offence punishable under Section 302 read with Section 34 I.P.C to which both the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Kishore Chand (complainant), P.W.2 S.I. Jagdamba Prasad Kukreti, P.W.3 Dr. Radha Kishan Lal Srivastava (Medical Officer), P.W.4 H.C.P. Narendra Singh, P.W.5 S.I. Abhinav Sharma and P.W.6 S.O. Om Veer Singh Rawat (Investigating Officer). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged that the evidence adduced against them is false. After hearing the parties, the trial Court found the accused/appellants Roshan Lohar and Shyam Munda guilty of charge of offences punishable under Sections 302 read with Section 34 of I.P.C., and convicted them accordingly. Aggrieved by said judgment and order dated 31.08.2012, passed by the Sessions Judge, Tehri Garhwal, in Sessions Trial No. 2 of 2012, this jail appeal is preferred by the convicts Roshan Lohar and Shyam Munda.

5. The learned Sessions