has also been tendered for cross-examination and non examination of any independent witness in this case has certainly casts a doubt on the manner occurrence as alleged by the prosecution as it is the defence case that a dacoity was committed in the night in the house of Lakhan Nut, in which he and others were assaulted by the appellants and other accused persons and on hulla, they were chased by the villagers, who assaulted the deceased and others and evidence of I.O. also shows that there was case and counter case and Ext. A to C also supports the defence case. It has further been argued that co-accused Lakhan Sapera has also been examined in this case and he has supported the defence version but the Trial Court has not considered the aforesaid fact of the matter and has also not considered the counter version of the case only on the ground that same has been filed by the defence to save their skin. Further submission of learned counsel for the appellants is that though the allegation is believed to be true, however, it is an admitted fact that there was no intention of the appellants to kill the deceased and as stated above, he had received injury while caught by the villagers and due to non treatment, he succumbed to his injuries and, therefore, there is no application of Section 304 of the IPC rather the petitioner at best be convicted under Section 325 of the IPC, the trial court without considering all these facts has convicted the appellants under Section 304 Part –II read with Section 149 as well as 147 of the IPC, which is out and out perverse and not sustainable in the eye of law.
