HAFIZ KHAN Vs. STATE OF M P

JUDGEMENT

(1.) THE appellants are hereby assailing correctness propriety and legality of the judgment and Order passed by the Additional Sessions Judge, Jaora in the matter of Sessions Trial No. 98/89.

(2.) THE prosecution case in brief is that on 6-7-89 deceased was proceeding by riding on motor-cycle at about 11 or 11. 15 P. M. near Mandi Samiti and at that time as per allegation of the prosecution, the appellants came there by boarding in a Jeep. The appellants gave a dash to the motorcycle which was being driven by the deceased and in the result the deceased fell. All the appellants alighted from the said Jeep being armed with lethal weapons and started assaulting deceased. Deceased sustained injuries which resulted in his death. After necessary investigation, the appellants have been put to trial before learned Additional Sessions Judge, who after recording evidence and appreciating it passed the Order of conviction and sentence, convicting the appellants for convicting the offence punishable under provisions of Section 148, 302/149 and 307/149, IPC. The learned Sessions Judge sentenced the appellants to R. I. for 5 years for offence punishable under Section 307/149, IPC and inflicted fine of Rs. 2000/- in default of payment of fine to undergo R. I. for 2 years. Under Section 148, IPC, he sentenced the appellants for R. I. to the term of one year and fine of Rs. 500/-, in default R. I. for 6 months. For committing the offence punishable under Section 302/149, IPC, he sentenced all the appellants to the imprisonment for life. He inflicted fine of Rs. 5000/- and in default to undergo R. I. for 3 years.

(3.) SHRI Jaisingh, counsel for appellants pointed out that the learned trial Judge committed the error in appreciating the evidence on record. He submitted that the learned Judge concluded that Ex. P-25 FIR recorded at the instance of P. W. Sheru and his dying declaration Ex. P-24 recorded by Naib Tehsildar will have to be treated as admissible in evidence in view of provisions of Section 33 of the Evidence Act, 1872 (for short 'evidence Act' ).