GHANSHYAM Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This Criminal Appeal is arising out of the Judgment dated 30.3.2010 passed by the VIIth Additional Sessions Judge (Fast Track Court), District Sagar in Sessions Trial No.364/2008 convicting the appellant for offence punishable under Section 302 of the IPC and sentencing him to imprisonment for life and fine of Rs. 1000/-; in default of payment of fine, additional rigorous imprisonment for one year.

(2.) The story of the prosecution, in brief, is that on 28.7.2008 at 12.30 a.m., a Dehati Nalishi (Ex.P.1) was lodged by Gautam (P.W.1) at Police Station Surkhi stating that on the date of incident i.e. 27.7.2008 in the evening he was sitting with his cousin brother Tarru and his cousin sister Pothi had gone to answer the call of nature towards school side. Then, at about 6.00 PM, he heard the cry of his cousin sister, then his brother Tarru and Jasrath ran towards that place, they saw coaccused Umesh catching hold of his sister. They tried to rescue her sister, then all of sudden co-accused Umesh shouted to run as they were being beaten, then co-accused Udham armed with an axe, appellant Ghanshyam armed with a tabbal, co-accused Prakash, Ravi and Natthu armed with lathis came there and with common intention, they assaulted the complainant party. It is also the prosecution case that appellant Ghanshyam gave a tabbal blow on the head of Tarru and blood started oozing out from the injury. When Dashrath tried to save him then co-accused Udham assaulted him with an axe, which caused injury to the finger of his left hand. When his sister Pothi came to save him, then co-accused Ravi assaulted her with lathi and Umesh threw her on the ground and Natthu stopped her with the help of lathi. Tarru fell on the ground on account of injury on his head and died on the spot after sometime. Rattu, father of complainant Gautam, Salagram and Narayan witnessed the incident. On the basis of Dehati Nalishi (Ex.P.1), Marg intimation (Ex.P.2) was registered at Marg No.54/2008 vide Ex.P.20. On the basis of the same, FIR (Ex.P.26) vide Crime No.277/2008 was registered. Dead body of deceased Tarru was sent for post-mortem. The post mortem report is Ex.P19. Spot Map (Ex.P.21) was prepared. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. Memorandum of disclosure of the accused persons were recorded under Section 27 of the Evidence Act. As per Memorandum of Disclosure (Ex.P.12) made by appellant, a tabbal has been seized as per seizure Ex.P.7. The seized articles were sent to the F.S.L. After completing the investigation, a charge-sheet has been filed before the competent Court of law against all the accused persons.

(3.) The trial Court framed charges against the appellant and other co-accused persons for offences under Sections 148, 302/149, 326/149 and 323/149 of the IPC. Co-accused Umesh was also charged under Section 354 of the IPC. The accused persons abjured the guilt and denied all the incriminating evidence against them. Therefore, the trial Court proceeded for trial. During trial, the prosecution examined in all 17 prosecution witnesses. Statement of the accused were recorded under Section 313 of the Cr.P.C. The accused persons examined three witnesses in their defence i.e. Dr. Jinesh Diwakar as DW.1, Hariom Purohit as D.W.2 and Narayan as D.W.3. Appellant Ghanshyam in his defence has stated that he has been falsely implicated. He further stated that firstly Buthe and Dasrath assaulted co-accused Udham with Katarna and on second time when Buthe assaulted Udham, he sat down but Katarna hit deceased Tarru resulting in his death.