KALLU ISMAIL KHAN Vs. STATE OF M P

JUDGEMENT

(1.) THE appellants have directed this appeal against the judgment and finding dated 9th September, 1996 passed by Third Additional Sessions Judge, Dewas in Sessions Trial No. 40/1989, whereby convicted the appellants under section 302 read with section 149 of the Indian Penal Code and sentenced to RI for life and fine of Rs. 500/- each; under section 148 of the Indian Penal Code RI for 2 years; and under section 25/27 of the Arms Act RI for one year. In default of payment of fine, further RI for one year. All the sentences ordered to be run concurrently.

(2.) IN nutshell the prosecution case as unfolded before the trial Court is that on 22.3.1988 in the noon at 1:30 p.m. there was auction of Nagar Palika Barriers of Village Hatpipaliya. In this auction, the owner of Free Indian Bus Service resident of Dewas also came to participate. There was some sort of dispute on the issue of droping the passengers. At that moment, accused persons reached over there in a green colour Matador CIU 475 which was being driven by Shiv. In that Matador accused Salim was sitting. Thereafter, all the appellants conjointly having Dhariya, Farsi, loaded gun and Lathis came out of Nagar Palika and started asking about 'SETH' of Free India and they came to know that 'SETH' had already gone towards Bagli. Thereafter, accused persons entered inside the tea hotel of Vijay Singh and assaulted Wilson, the deceased. Appellant Kallu Pathan dealt a knife injury on the chest. Thereafter, all the appellants made a deadly assault upon the deceased and caused him injuries. After assaulting the deceased, accused persons ran away with their respective weapons in Matador. Deceased Wilson was lying in pool of blood in the hotel of Vijay Singh. Complainant Goverdhan went to Police Station Hatpipaliya and lodged the report Ex. P-15 on the basis of which Crime No. 67/1988 was registered by the police. Police took the dead body from the place of incident, prepared inquest, spot map and sent the dead body for postmortem examination. Post-mortem was performed by PW-5 Dr. Avtar Singh Saluja. His report is Ex. P-10. After arrest of the accused persons and necessary investigation appellants along with acquitted co-accused Shivnarayan charge-sheeted for the abovementioned offences.

(3.) THE learned counsel for the appellants has submitted that the statement of both the eye witnesses named PW 6 Poonamchand and PW 7 Goverdhan have been contradicted by the medical evidence of PW 5 Dr. Avtar Singh Saluja. According to both the eye witnesses all the accused persons assaulted the deceased by their respective weapon but the evidence of PW 5 Dr. Avtar Singh Saluja, deceased suffered only two injuries on left side of chest. Out of these two injuries, one injury proved fatal and another was superficial skin cut and that second injury was situated just by the side of injury No. 1. The learned counsel has also submitted that PW 6 Poonamchand is a chance witness. He was not resident of Hatpipaliya where the incident occurred. He was resident of Bagli. The learned counsel has also pointed out contradiction about the statement of prosecution witnesses about lifting of the dead body in the Matador or in "HAATH THELA". It has also been submitted that the eye witnesses have falsely implicated the appellants at the instance of owner of Free India Bus Service.