ISHWAR PRASHAD Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS is an appeal by Ishwarprashad, son of Lalluprashad of village Acholi, district Durg, who has been convicted by the learned Additional Sessions Judge, Durg, under section 302 of the Penal Code, for the murder of one Tantu, in the mid-night between 15-3-1905 and 16-3-1965, at village Acholi, and sentenced to imprisonment for life. The other co-accused Mahabir, who was also prosecuted for the offence under section 302 read with section 34 of the Penal Code, has been acquitted, while the remaining co-accused Sitaram and others have been absconding.

(2.) BRIEFLY stated, the facts of the prosecution case were, that relations between Jhumak a lias Jhumaklal and his son Meghashyarn (P.W.I), both of village Acholi, were strained with Sitaram as also his son Surendra, both absconding accused, for sometime past; Ishwarprashad accused was serving with Sitaram and Tantu accused with Jhumaklal, at the relevant time, and it is alleged that accused Ishwarprashad, accompanied by Mahabirprashad accused (since acquitted) and four others who are absconding, had gone to village Acholi with a view to kill Jhumaklal, but there, they found Tantu deceased sleeping in his house, which was under construction at that time. Tantu got awakened as the dog barked and the accused having known that Tantu had recognized them, they inflicted a number of injuries on him in order to eliminate the chance of his divulging the fact to Jhumaklal. Tantu was so severely injured that he succumbed to his injuries soon. A report of the incident was made to the police by Meghashyarn (P. W. 1), vide Ex. P-1, about an hour after the incident and the police, after the usual inquest and necessary investigation in the case prosecuted the accused-appellant and Mahabir for the offence under section 302 read with section 34 of the Penal Code, but the accused was convicted under section 302 of the Penal Code while Mahabir was acquitted.

(3.) THE prosecution case rests mainly on the oral dying declaration alleged to have been made by the deceased, and the learned Judge, relying on the testimonv of Meghashyam (P. W. 1), Nawinchand (P. W. 4) and Ramdayal (P. W. 8), convicted the accused for murder as aforesaid.