BABARIYA Vs. STATE OF M P

JUDGEMENT

(1.) BY this common judgment, both the aforementioned Cr. Appeal Nos. 438/96 (Babariya and Ors. v. State) and 463/96 (Puniya and Ors. v. State of M. P.) are being decided.

(2.) BOTH these appeals are directed against the judgment dated 16-5-96 passed by the learned Addl. Sessions judge, Dhar in Sessions Trial No. 166/94, thereby convicting the appellants for the offences punishable under Section 148 and Sections 302/149 of the Indian Penal Code and sentencing them each to undergo R. I. for six months with fine Rs. 500/-, in default of payment of fine to suffer R. I. for three months and to undergo imprisonment for life with fine Rs. 2,000/-, in default of payment of fine to suffer R,i. for six months respectively. The substantive sentences are directed to run concurrently. The total amount of fine of Rs. 22,500/-, on its realisation, has been ordered to be paid to the widow or in her absence to the elder son of the deceased. 2. Succinctly, the prosecution case before the Trial Court was that on 22-3-94 in the night at about 8. 00 PM, deceased Thavaria, his brother Nanuram (P. W. 1) and one Karansingh were returning from their field. When they reached in front of the house of appellant Babariya, the appellants having spear, Falia, lathi and axe surrounded the deceased Thavaria and started assaulting him. His brother Nanuram (P. W. 1) tried to save him, but he too was assaulted by lathi. The appellants made Nanuram and Karansingh to run away from the scene of occurrence by pelting stones. While Nanuram and Karansingh reached near their house, they met P. W. 5 Sukhram to whom, they disclosed about the incident. Upon receiving this information, Sukhram proceeded alongwith Karansingh and Nanuram near the place of incident Sukhram (P. W. 5) also saw the accused persons armed with weapons at the scene of occurrence in front of the house of the appellant Babariya. Again, the appellants started pelting stones at Nanuram, Karansingh and Sukhram, consequent to which, all these three persons had run away and took shelter in their houses. Next day in the morning, again Nanuram and Sukhram reached in front of the house of appellant Babariya where they did not find the deceased Thavaria. On search, his dead-body was found lying one kilometer away near Piplakhodra from the place of incident.

(3.) THE First Information Report (Ex. P-26) was lodged by Sukhram (P. W. 5), brother of the deceased on 23-3-94 at 12. 30 PM. This was pen-down by the Station House Officer D. V. S. Chouhan (P. W. 7 ). The dead-body of the deceased was sent for post-mortem examination. Autopsy was performed by Dr. Maheshkumar Dhakad (P. W. 4) who found one triangular incised (piercing) wound at the left ear which pierced upto the brain, one lacerated wound on the left scapular region and one incised wound on left cheek below left eye. The post-mortem report is Ex. P-25. The cause of death was because of injury No. 1. Other two injuries were simple in nature.