The omission of the name of an accused in the FIR does not make it fatal to the prosecution case, and minor variations between medical evidence and ocular evidence do not take away the primacy of the latter.

Nandita Dubey, J.

This appeal has been filed by the appellants being aggrieved by the judgment dated 13.01.2006, passed by learned 7th Addl. Sessions Judge, Jabalpur, in Sessions Trial No. 189/2004, whereby the appellants have been found guilty for the offence punishable under Section 302/34 of IPC and have been sentenced to undergo life imprisonment.

2. It is to be noted that appellant No.4 Bahadur died on 15.03.2013, during the pendency of the appeal and his name was deleted as per Court's order dated 24.01.2014, in such circumstances, the appeal, so far as it relates to appellant No.4 Bahadur stands abated.

3. The brief facts leading to this appeal as discerned from the prosecution case are that on 31.12.2003 a programme for celebrating the New Year was organized in the house of PW-6 Lakhanlal, who had arranged for sound box and light decorations. On 01.01.2004, at 12.30 a.m., the programme got over and the guest all left the place, except for PW-4 Bappa @ Kuldeep Saini, PW-6 Lakhanlal, PW-7 Rinku Gonthiya and Ashok Kumar (deceased). After few minutes the accused persons namely Ajay Kol, Nokhelal, Rajuwa and Bahadur came, armed with sword, hockey stick and lathi respectively. An argument ensued between the appellants and the deceased on account of speaker set and decoration material. It is alleged that all the appellants repeatedly struck the deceased Ashok with their weapons, who fell down. The victim was thereafter dragged and thrown into a culvert. PW-6 Lakhanlal and others brought the unconscious Ashok to Police Station Ranjhi from where he was sent to hospital for treatment. However, on reaching the hospital Ashok was declared dead by P.W.-11 Dr. T.R. Digra.

4. FIR (Ex.P-6) to that effect was lodged at Police Station Ranjhi by PW-6 Lakhanlal, on the basis of which criminal law was set into motion. Spot map (Ex.P/7) was made and blood stained earth was seized. Blood stained shoe of the deceased was also seized vide (Ex.P/9). Marg intimation was recorded and the body of the deceased was sent for the postmortem. PW-5 Dr. N.S. Kukrele, who conducted the postmortem found in all 10 injuries over the body of the deceased all antemortem in nature. According to the doctor, injury nos.1 to 6 were caused by sharp edged weapon and injury nos.8 to 10 were caused by hard and blunt object. In the opinion of the doctor, the death occurred due to excessive bleeding and haemorrhage on account of fracture of the frontal bone and laceration of the brain.

5. The accused persons namely Ajay Kol, Bahadur Kol, Nokhelal Kol and Rajuwa @ Rajesh Kol were arrested on 02.01.2004 by PW-12 C.N. Dubey. In his disclosure statement (Ex.P-10), Ajay has stated that he has given the sword to Bahadur. Based on the disclosure statement of Bahadur, the blood stained sword was seized from him. The disclosure statement of Nokhelal (Ex.P/13) led to the recovery of blood stained hockey stick and blood stained lathi were recovered at the instance of Rajuwa @ Rajesh. Besides these, the blood stained clothes were also seized from all the accused persons. All these articles were sealed and sent for chemical examination. After completion of the investigation, the accused persons were charged under Sections 302/34 of the IPC and Section 25 of the Arms Act.

6. In order to bring home the charge, the prosecution has examined 12 witnesses. The accused persons abjured their guilt and pleaded false implication. However, they chose not to examine any witness.

7. The learned Additional Session Judge vide judgment dated 13.01.2006 convicted all the accused persons relying on the testimony of the eye-witnesses PW-4 Bappa @ Kuldeep Saini, PW-6 Lakhanlal and PW-7 Rinku Gonthiya.

8. Shri Surendra Singh, learned Sr. Counsel appearing on behalf of the appellants in support of the appeal, interalia submitted though :-

(i) Name of one of the appellants, appellant No.4, having not been mentioned in the FIR nor having specified with any weapon by P.W.-6 Lakhanlal and P.W.-7 Rinku Gonth