JUDGMENT

1. Present Criminal Appeal is directed against the judgment of conviction and order of sentence dated 08th March, 2001 passed by the Additional Sessions Judge, Sabalgarh, District Morena (M.P.) in Sessions Trial No.294 of 1999; whereby the present appellant has been convicted under section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs.2,000/- in default to suffer additional R.I. for six months.

2. Prosecution story, in short, is that on 21st July, 1999, at about 6.00 p.m., complainant Ramprasad lodged a report to the effect that on the same day at about 4 pm, Malkhan and Pappu@ Kashiram were fencing their Courtyard. At that juncture, accused Ramcharan (appellant) and Ramswaroop armed with Gadasis (Pharsas), Brijesh and Suresh armed with Luhangis, Jagannath, Ramgopal, Kamlesh and Kalli came with Lathis and prevented them from fencing the Courtyard. Then, with an intention to kill Ramcharan dealt a Gadasi blow on the head of Pappu @ Kashiram, while the second gadasi blow was inflicted by Ramswaroop again on his head. As Malkhan came forward to intervene, co-accused Brijesh, Suresh, Jagannath, Ramgopal, Kamlesh and Kalli threw him on the ground and with an intention to kill assaulted him with luhangis and lathis, on his back, hands and legs. Malkhan also fell down. Both the injured persons were rendered unconscious. They were rescued by complainant Ramprasad, Babu, Prithvi, Ramesh and Shripal while the miscreants fled from the spot. Thereafter the complainant and his associates brought Malkhan and Pappu in an unconscious condition for lodging report.

Upon such information given by complainant Ramprasad at Police Station Raghunathpur, District Sheopur, FIR was registered at Crime No.21/99. The injured were sent by Ashok Singh Tomar (P.W.14) for medical examination to Sabalgarh hospital. Dr.R.B.Agrawal (P.W.1) conducted the MLC of Pappu and Malkhan and as the condition was serious, they were referred to Gwalior Hospital, where during treatment on 22.7.1999 at about 2.00 pm. Pappu passed away.

During investigation, spot map (Ex.P/38) was prepared by Ashok Singh Tomar (P.W.14). He also seized planed and blood stained earth from the spot vide seizure memo (Ex.P/9) and forwarded application (Ex.P/3) to Medical Officer Sabalgarh for recording dying declaration of Pappu @ Kashiram. As Pappu @ Kashiram had died at Gwalior Hospital, marg information, Panchnama lash and post mortem report were received by the investigating officer from Kampoo Police Station. Copy of the FIR was sent to the Magistrate with corresponding entry in the Daak Book. Appellant Ramcharan was arrested on 24.7.1999 vide arrest memo (Ex.P/10). On his discovery memo (Ex.P/11), a pharsa was recovered from the bushes on the way to Heerapur, which was seized vide seizure memo (Ex.P/12). Other accused persons Ramswaroop, Suresh, Kalli Rawat, Kamlesh, Brijesh, Ramgopal and Jagannath were also apprehended. The articles seized from accused persons were sent for chemical analysis vide Ex.P/42.

Upon collection of incriminating material during investigation, challan was filed in the Court of JMFC, who committed the case to the Court of Session from trial.

3. On being charged with the offence punishable under section 302, IPC, the appellant abjured the guilt and pleaded false implication.

4. To establish the charges, the prosecution examined as many as 14 witnesses including eye witnesses Ramprasad/complainant (P.W.12), Malkhan (P.W.2), Prithviraj (P.W.3), Gullobai (P.W.5), and Babulal (PW6), whereas evidence of Ramesh (D.W.1) was recorded in defence.

5. On consideration of the evidence on record, learned trial Judge, for the reasons recorded in the impugned judgment, found the appellant guilty of the offence charged with. He, therefore, convicted and sentenced him as indicated hereinabove, however, other accused persons were acquitted of charges.

6. Shri Atul Gupta, learned counsel for the appellant has made following submissions :--

(1)