MAKHAN AND ANOTHER Vs. STATE OF M P

JUDGEMENT

(1.) Appellants along with four persons, viz, Kadam Singh, Kok Singh, Pappu alias Ramniwas, Prabhu alias Sadhu were tried for an offence punishable under Sections 302, 451, 294, 323 read with Section 34 IPC and Sections 25, 27, 30 of Arms Act for causing death of Kalicharan. Whereas, Kadam Singh, Kok Singh, Pappu alias Ramniwas, and Prabhu alias Sadhu have been acquitted, the appellant Makhan while acquitted for an offence punishable under Section 506B IPC and Section 25(a) of the Arms Act has been convicted under Section 302 IPC whereas, appellant No. 2 Dadhiram is convicted for the offence under Section 302/34 IPC.

(2.) As recorded in separate order passed today, appellant No. 1 died during the pendency of present appeal, as such his name is directed to be deleted from the array of appellants, and the appeal at his instance is dismissed being abated. The present appeal, as a natural corollary, is confined to appellant Dadhiram.

(3.) The prosecution was set in motion with Kamal Singh (PW/2) lodging the first information report on 17/03/1995 at 18:10 hours (06:10 PM) at PS Civil Lines, Morena to the extent that he is a resident of Visangpur, at about 4PM on "holi ki parva" Dadhiram said to have the wrestling between his son Makhan with Baijnath (complainant's nephew). On refusal, as Baijanath was not a match, Dadhiram entered into hot talks; however, with the intervention by the persons present around, he left the place with Kok Singh, Karma hurling abuses and saying that the complainant will be settled (Thikane lagaye dete hain). Complainant came back home. After one hour Dadhiram armed with lathi along with his son Makhan armed with gun, Kok Singh "farsa", Kadma "barchi" came at his door (house) where Kalicharan, Baijnath, Shyamlal, Ramratii, Rakesh, Matadin, Pothi, Gar Singh were also sitting and gave call, hurling abuses. On complainant requesting with folded hands to go back, at that moment Makhan gave a gun shot to Kalicharan, complainant's son, which hit him on right side of neck, who being taken to hospital, died on way. The investigating officer, PW-24, after recording complaint and preparing crime detail form and the spot map (Exhibit P-3), arrested the accused persons. On their memorandum statement seized the weapons said to be used for commission of offence. The gun and the licence in the name of Dadhiram, present appellant was seized at the instance of Makhan. Blood stained soil was collected and the forensic science report (Exhibit P/14) was sought. The dead body was sent for post mortem. The report whereof is Exhibit P/24. After completing necessary investigation and other formalities, the charge sheet was filed under Sections 302, 451, 294, 323, 34 IPC against Kadam Singh, Kok Singh, Dadhiram (appellant), Makhan (appellant since dead), Pappu and Prabhu. The charges framed against Makhan was under Sections 148, 302, 506 II IPC Section 25(A) Arms Act. Against Dadhiram, charges framed were under Sections 148, 302/149, 306(II)/149 IPC.