JUDGMENT

Swatanter Kumar, J.-This appeal is directed against the judgment of the High Court of Madhya Pradesh, Bench at Indore dated 23rd January, 2008. We may notice the necessary facts giving rise to the present appeal. According to the prosecution, Udayram, PW-1 along with his younger brother namely Gokul (the deceased) and sister Rajubai, PW-2 had gone to the village Lod for pilgrimage. After they reached the said village, they came to know that the Pujari who was to perform the puja was not available. Resultantly, all the said three persons decided to return back to their village Dhuvakhedi, Tehsil Tarana, District Ujjain.

2. At about 4-4.30 p.m., when they reached near the said village, all of a sudden the accused persons namely Atmaram, Gokul, Vikram, Ramchandran and Umrao emerged from the fields having soyabean crop. They shouted that the deceased and his relatives had set their soyabean crop afire and therefore, they should be taught a lesson. The accused Ramachandra was armed with farsi, Gokul was carrying dharia and other three accused were having lathis. All these accused persons started assaulting Udayram (PW1) causing injury on his head, left hand and legs. Gokul (the deceased) and PW2 tried to intervene and protect Udayram. In this process, both these witnesses sustained a number of injuries caused by the accused with the help of the same weapons. The other witnesses present at the site, Gajrajsingh, Sardarsingh and Gokul did not interfere in the assault because of fear and silently slipped away.

3. Another witness, Pannalal, PW8, was working in the fields nearby. Upon being called by Rajubai, PW2, Pannalal came to the place of occurrence and seeing the deceased and witnesses in injured condition, Pannalal and one Prem brought the bullock cart of one Kanhaiya Balai. Thereafter, one Umrao Bai also joined them. They finally found a jeep on the road in which Pannalal, Prem and Umrao Bai took the injured persons to the Tarana Hospital where they were admitted. From the hospital, information was sent to the Police Station, Makdon on which basis, the Head Constable Chedilal Yadav, PW23, reached Tarana Hospital. On the basis of the statement of Udayram, PW1, Dehati Nalishi (Ex.P1) was recorded at about 6.20 p.m. on 6th November, 1993.

4. A case under Section 307 read with Sections 147, 148 and 149 of the Indian Penal Code, 1860 (for short ‘IPC’) was registered. All the three injured persons were subjected to medical examination by Dr. Anil Kumar Dubey, PW4, who issued their MLC reports, Ex.P2-A to P.4-A. Udayram and Rajubai were treated by the doctors. At about 7 p.m., the statement of Gokul was also recorded in the presence of the witnesses. Keeping in view the serious condition of Gokul, he was required to be transferred from Tarana Hospital to Civil Hospital, Ujjain for treatment. However, he died on the way at about 11.30 p.m. on 6th November, 1993 and his dead body was kept in the Civil Hospital, Ujjain. Information was sent to the Police Station, Makdon, whereafter an offence of Section 302 read with Section 149 IPC was added to the charges.

5. Inquest proceedings were completed. The dead body of the deceased was subjected to post mortem and post mortem report Ext. P30 was prepared by Dr. Ajay Nigam (PW14).

6. After registration of the offence, the investigating officer, PW26, Sohan Pal Singh Choudhary visited the spot of occurrence on 7th November, 1993, from where the blood stained earth, cycle and sandal of the deceased were seized and the spot map was prepared. On 8th November, 1993, all the accused persons were arrested. Upon their interrogation and in furtherance to their statements, the arms involved in the commission of crime were recovered and seized. These seized weapons were sent to forensic science laboratory for examination on 3rd December, 1993. The examination report was received on 8th December, 1993 and in terms of the Report, no blood stain was found, either in the soil or in the sealed fa