SURENDRA KUMAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) In this appeal under section 374(2) of the Code of Criminal Procedure, the appellant calls in question his conviction for offence under section 304(II) of the Indian Penal Code and sentence of rigorous imprisonment for 7 years in Sessions Trial No. 86/1995 recorded by the 1st Additional District Judge, Khurai, District Sagar vide his judgment dated 18.4.1996.

(2.) Appellant alongwith seven other co-accused persons were prosecuted for offence under sections 147, 148, 302/149 and 307/149 of the Indian Penal Code. All the eight accused, including the appellant, have been acquitted of all the offences including the offence under section 302, but the appellant alone is convicted for an offence under section 304(II) of the IPC for having caused a solitary knife injury on the person of deceased - one Dhirendra Parihar, therefore, this appeal.

(3.) It is the case of the prosecution that on 6.11.1994, at about 10.00 PM - Bhupendra Singh (injured person) met Dhirendra Parihar (since deceased) and was proceeding to his house to pay regards to his elder brother. While they were so going and when they reached Jhanda Chowk, Khurai and were near to the shop of one Mulayam Chand - one of the acquitted co-accused, the shop of Mulayam Chand was partly closed by shutter. It is said that the appellant and other seven co-accused persons, who were already waiting there, namely Dharmendra Khaddar, Surendra Khaddar, Sandeep Khaddar, Manoj Singhai, Sandeep, Mahesh @ Rajjan Rokhadia and Alok were armed with weapons like lathi and knife. It is said that on seeing Bhupendra Singh - PW/3 with Dhirendra Parihar, all of them came out and assaulted them. It is said that co-accused persons Alok and Mulayam Chand incited all the persons to commit the assault. Mahesh, Sandeep and Manoj are said to have assaulted both Bhupendra Singh and Dhirendra Parihar with knives; Mulayam Chand and Manish assaulted both of them with lathi and it is stated that present appellant caused a solitary knife injury on the person of Dhirendra Parihar. It is stated that they were rushed to the Hospital where Dhirendra Parihar succumbed to the injury. Bhupendra Singh was treated and thereafter he was discharged. First Information Report - Ex.P/6 was lodged by Bhupendra Singh while he was in the Hospital. His case diary statement was also recorded by the police authorities in the Hospital vide Ex.D/1. That apart, it is said that a dying declaration of this person was also recorded as Ex.D/2 by the Naib Tehsildar. In support of the case, various witnesses were examined. In all there are five eye-witnesses to the incident. They are PW/3 Bhupendra Singh - injured eye-witness; PW/4 Ikram; PW/5 Karan Singh; PW/6 Nitiraj Singh; and, PW/10 Rajendra Singh. Knife with which the appellant is said to have caused the injury on the person of deceased Dhirendra Parihar was also seized and it was sent for forensic examination.