ASHOK KUMAR TIWARI. J.

( 1 ) APPELLANT-POORSLNGH has been convicted under Ss. 324 and 302/34 of the Indian Penal Code and all other appellants have been convicted under Ss. 324/34 and 302/34 of the Indian penal Code by learned Sessions Judge, ujjain, vide judgment and order passed in s. I. No. 225/96.

( 2 ) (A), Prosecution's story as unfolded by the evidence is that on the date of incident nirbhay Singh (P. W. 7) had been to Zarda for purchasing roofing tiles. Roofing tiles purchased by him were sent by him to his village by the bullock cart of Poora Balai. At about 5 O'clock in the evening Bhagwan singh of village Varsi (deceased) met him in village Zarda. On being told by Nirbhay singh (P. W. 7) that he would be going to meet his brother at Naharkheda, he expressed his willingness to accompany him and thereafter both of them started towards naharkheda riding in the bus. Appellant-poor Singh and some other persons of the village were also travelling in the bus, in which Nirbhay Singh (P. W. 7) and deceased-bhagwan Singh were travelling. All the above persons got down from the bus on the way leading to village Naharkheda and appellant-poor Singh left for Naharkheda while bhagwan Singh and Nirbhay Singh stayed for a while there for attending the call of nature and after washing up, both of them started to Naharkheda. 2 (b ). When Nirbhay Singh (P. W. 7) and the deceased reached near the house of appellant-Poor Singh in village Naharkheda, appellant-Poor Singh asked soutedly that who was there ? When Nirbhay Singh (P. W. 7) replied that it was Nirbhay Singh of village belakhedi, appellant-Poor Singh and other appellants gathered there and they started Inflicting lathi blows on Bhagwan singh (deceased), who was being accompanied by him. Appellant-Poor Singh struck lathi blow on Nirbhay Singh (P. W. 7) also and appellant-Sultan Singh also struck him with lathi. Deceased-Bhagwan Singh fell on the ground and Nirbhay Singh (P. W. 7) also fell on the ground. Bhagwan Singh of village varsi (deceased) was done away to death by the time Nirbhay Singh (P. W. 7) ran away from the scene of occurrence and reached borkheda where he told Bhagwan Singh of village Borkheda about the incident. Bhagwan Singh of village Borkheda advised nirbhal Singh (P. W. 7) to run away from there also. Thereafter, Nirbhay Singh (P. W. 7) wandered here and there beside the river and he made First Information Report Ex. P/20 at Police Station Zarda next day. 2 (c ). Police sent Nirbhay Singh (P. W. 7)to hospital for treatment and medical examination. Police reached on the spot and prepared spot map (Ex. P/21j and panchnama of the dead body of Bhagwan singh (Ex. P/23) was also prepared. Dead body of Bhagwan Singh was sent for postmortem. Dr. S. K. Tanwar (P. W. 4) performed autopsy on the dead body and prepared post-mortem report Ex. P/17. Police recorded the statements of witnesses during the investigation and appellants were arrested and necessary investigation was conducted by the police and after completing the investigation, challan was filed against the appellants. ( 3 ) APPELLANTS abjured the guilt thereby they were tried by the trial Court and after trial, appellant-Poor Singh was held guilty14 for the commission of offences punishable under Ss. 324 and 302/34, I. P. C. while all other appellants were held guilty for the commission of offences punishable under ss. 324/34 and 302/34 of I. P. C. and each of them were sentenced to undergo rigorous imprisonment for one year and life imprisonment respectively. Hence, appellants have filed this appeal.

( 4 ) THE appellants have not challenged the fact that the deceased-Bhagwan Singh has died and his death was homicidal. Even otherwise, there is ample evidence to the effect that deceased-Bhagwan Singh had met homicidal death. Dr. S. K. Tanwar (P. W. 4) has deposed that he examined the dead body of Bhagwan Singh s/o Dule Singh r/o village Varsi, which was brought by Constable munna Singh No. 991 of Police Station,

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