VISHAMBHAR DAYAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) In this appeal filed by the appellant under section 374 of the Cr.P.C., 1973 challenge is to the impugned judgment dated 08.04.2000 passed by the First Additional Sessions Judge, Ashoknagar, District Guna in S.T.No.307/1998 whereby Vishambhar Dayal convicted under Section 302/34 of the IPC and sentenced to life imprisonment.

(2.) Undisputedly, main accused Arvind is son of appellant Vishambhar Dayal and his wife Rajkumari. Deceased Rajkumar and complainant Dinesh Kumar (PW-4) and Vipin (PW-5) are real brothers, who are son of Pushpa Devi (PW-6), and Shambhu Dayal. Appellant Vishambhar Dayal and Shambhu Dayal were real brothers and on the date of incident i.e. 21.03.1998, both brothers were living separately in different portions of a house having a common wall between their portion with their family. At the time of trial of present appellant Vishambhar Dayal with his wife Rajkumari before the trial Court, their son Arvind was absconding.

(3.) Prosecution case in brief is that complainant-Dinesh Kumar Shrivastava (PW-4) lodged FIR (Ex.P-9) on 21.03.1998 at 01:10AM at Police Station Ashoknagar to the effect that he was doing work of supply of bricks at Ruthiyai and complainant returned to his house situated at Ashoknagar on 20.03.1998 at 22:30hrs and in the intervening night between 20/21March, 1998 complainant Dinesh (PW-4) was talking with his younger brother Vipin (PW-5), elder brother Rajkumar and father Shambhudayal because his father wanted to sale the house of their portion, but after hearing the talking between complainant and his family members, his aunty Rajkumari and his son, who were residing in their adjacent portion, started hurling abuses to complainant and his family. After hearing abuses, complainant and his family members told to Rajkumari that they should not hurl abuses and invited them for coming out from the house, and talking. At about 12:45 complainant, his brother and parents came out from their portion to the platform of their house, then complainant's uncle Vishambhar Dayal having a stick in his hand and his wife Rajkumari hurling abuses came out from their portion of house. Complainant was standing ahead then appellant Vishambhar Dayal pushed Dinesh, hence, he fell down, then appellant's son Arvind with the intention to kill inflicted a ballam injury into the abdomen of complainant's elder brother Rajkumar and, thereafter, Arvind also inflicted ballam injuries to the complainant Dinesh and his younger brother Vipin. Dinesh received ballam injury on his hip and Arvind also gave ballam's blows to Vipin, which caused injury on his right thigh and both hands. Vishambhar Dayal with intention to kill Vipin, gave stick blow to him and at that time Rajkumari was hurling abuses and was saying that she would see that how they sale the house. After receiving ballam injury in the abdomen, Rajkumar fell down, which was taken by the complainant and his family members from a tractor and trolley driven by Rambabu towards Police Station Ashoknagar but on the way Rajkumar succumbed. After reaching to Police Station Ashoknagar in the midnight at 01:10AM complainant Dinesh lodged FIR (Ex.P-9) which was scribed by TI, A.K.S.Gaur (PW-7).