VIJAYSHANKAR SHIVNARAYAN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) APPELLANT Vijay Shankar has challenged his conviction in this appeal, recorded in judgment dated 27-7-1983 in Sessions Trial No. 29 of 1983 of the Court of Additional Sessions Judge, Hoshangabad, Camp Harda. He has been convicted under section 302, of the Indian Penal Code and has been sentenced to imprisonment for life. Appellant was tried alongwith twelve other accused persons who were acquitted in the trial. The State has not preferred any appeal against that part of the impunged judgment by which those twelve co-accused have been acquitted.

(2.) ON 12th February 1982, one Kailashin Handia Bus-Standat 6 or 6. 30a. m. was boarding a bus alongwith deceased Virendra and one Motilal (PW-14 ). It is alleged that at this very time, the appellant with a ballam in hand arrived on the spot alongwih other co-accused who were also armed with deadly weapons and lathis. According to the prosecution case, it is alleged that the appellant gave a ballam blow from behind as a result of which Virendra fell down on the ground. Kailash (PW-12) when tried to save the deceased, it is alleged that he was also given a thrash. He therefore ran away towards his house and met Chhotibai (P. W. 3), who questioned Kailash (PW-12) as to why he was fleeing away. Chhotibai was informed by Kailash that "golapur Walon Ne Virendra Ko Mar Dala Hal" it is further alleged that Chhotibai saw appellant with a ballam in hand and his companions pursuing Kailash (PW-12 ). She returned back to the house of motilal (PW-14) and asked his daughter Kusum to go and lodge the report. Kusum rushed to the Police Station and lodged a report therein which is Ex. P-24. Ex. P-24 is a cryptic rojnamcha-sahna entry dated 12-2-1982. This document contains the fact that her brother Kailash has received injuries upon his head and Virendra is lying injured in the Bus Stand and her Badi Maa Mst. Chhotibai had sent her to the police Station for lodging the report. Upon this, the police proceeded towards the spot where, accordingtobadrilalsoni (PW-15), Sub-Inspector, he found Kailash in an injured condition. Hence, he took down Ex. D-6 the report lodged by Kailash (PW-12), This was early in the morning. Then according to Badrilal Soni (PW-15), he proceeded to the Police Station and wrote out a First Information Report (Ex. P-20), which is the exact reproduction of Ex. D-6. This Ex. P.-20 was recorded at 12. 30 in the noon. The case of murder was registered and the appellant alongwith others was arrested and trial ensued. The appellant alone was convicted and sentenced as indicated hereinabove.

(3.) ACCORDING to the prosecution, there were two eye witnesses of this incident, - P. W. 12 Kailash and P. W. 14 Motilal. Learned trial Judge has rejected the testimony of P. W. 14 Motilal in para 21 of his judgment. The trial judge has placed reliance upon the testimony of Kailash (PW-12) alone and convicted the appellant alone.