SHYAM PRASAD Vs. STATE OF M P

JUDGEMENT

(1.) This appeal arises out of judgment of conviction dated 29 th March, 2004, passed by the Additional Sessions Judge, Manasa, district Mandsaur in Sessions Trial No.43/2003, whereby appellant No.1 Shyam Prasad Mishra and appellant No.2 Banti @ Rajendra Tiwari have been convicted under Section 302 read with Section 34 of the IPC and each of them has been sentenced to undergo imprisonment for life with fine of Rs.10,000/- and in default of payment of fine to undergo additional RI for three years. Appellant No.3 Rajendra Prasad Mishra has been convicted under Section 302 of the IPC and sentenced to undergo life imprisonment with fine of Rs.10,000/- and in default of payment of fine to undergo additional RI for three months. The learned trial Court also directed that fine amount be paid to the mother and father of the victim (deceased Samrath).

(2.) The prosecution case is as follows: Appellant No.1 Shyam Prasad Mishra and appellant No.3 Rajendra Prasad Mishra @ Raju are real brother. There was a dispute between Naresh Tiwari and Radheshyam Meena, residents of village Magarda in respect of share of garlic crop, which was sown at the submerge area of dam. On 22.3.2003 in the night Radheshyam Meena along with his companions had gone to commit theft of garlic crop from the said field. The matter was reported to the police. On the basis of information received at Police Station Rampura, the police personnels reached the spot. On seeing them Radheshyam Meena and his companions left the place, after leaving tractor trolley & motorcycle towards Kedareshwar Road. When they were on the way to Kedareshwar Road, one motorcycle came there, which was being driven by Ramesh Chand (PW7) and deceased Samrath Meena was pillion rider on the said motorcycle. At about 3 AM in the night when the said motorcycle reached in front of the hut/house of Kanwarlal Meena, appellants Shyam Mishra and Raju @ Rajendra Prasad Mishra, relatives of Naresh Tiwari were waiting for the culprits, who were trying to commit the theft of garlic crop and were hidden near the house of Kanwarlal Meena and no sooner the motorcycle came in front of the house of Kanwarlal Meena, appellants Shyam Mishra affixed 'Kalpa' (an instrument which is used for agricultural purposes) on the road and tried to stop the motorcycle. At that relevant point of time appellant No.3 Raju @ Rajendra Prasad Mishra, who was armed with sword gave sword blow to the person, who was driving the motorcycle. He bow his neck down, Samrath Meena, who was pillion rider, sustained the said sword injury on his neck, due to which he fell down and died on the spot. The allegation against the appellants is that they tried to disappear the dead body of Samrath Meena and, therefore, an offence under Sections 302 and 201 of the IPC has been registered against them. Untimely death of Samrath Meena was reported by village Chowkidar Keshrilal Meena (PW2) at Rampura Police Station of district Neemuch and on the basis of the said report marg No.4/2003 was registered under Section 174 of the Cr.P.C. and, during marg investigation vide FIR (Ex.P/11) for an offence under Section 302, 201 & 34 of the IPC was registered at Crime No.51/03. During investigation the inquest was prepared and the dead body was sent for postmortem. Dr. B.L. Rawal (PW9) conducted the postmortem. Ex.P/6 is the postmortem report. The accused persons were arrested and after completion of the investigation charge sheet was filed.

(3.) The prosecution examined Kanwarlal (PW1), Kaushalyabai (PW5), Ramesh Chand, driver of the motorcycle (PW7) and Radheshyam (PW8) as eyewitnesses. They deposed that appellant No.3 Raju @ Rajendra Prasad Mishra was armed with sword and caused fatal injury to the deceased. They have not stated that appellant No.2 Banti @ Rajendra was present at the time of incident. The allegation against appellant No.1 Shyam Prasad Mishra is that he was along with appellant No.3 Rajendra Prasad Mishra and it is he who affixed 'Kalpa' on the road to stop motorcycle and exhorted the appellant No.2 that motorcycle is coming and to cause injury to motorcyclist and due to his exhortation the appellant No.2, who was his brother, gave fatal blow to the pillion rider of the motorcycle. The remaining 8 witnesses, who are Investigating Officer, doctor, witnesses of seizure memo, have deposed that there was a dispute between Naresh Tiwari and Radheshyam Meena in respect of share in garlic crop of submerge area of dam and supported the case of the prosecution.