JUDGMENT

Rohit Arya, J. - This Criminal Appeal is directed against the judgment of conviction and order of sentence dated 20/12/2000 passed by IV Additional Sessions Judge, Morena (M.P.) in Sessions Trial No.229 of 1996 whereby the present appellant stands convicted under Section 302 read with 34 of the IPC and sentenced to undergo imprisonment for life with a fine of Rs.5,000/- in default to suffer R.I. for six months. However, during pendency of this appeal, appellant no.1 Ramautar died and his name has been deleted from the array of appellants in pursuance of order dated 20/7/2022.

2. Prosecution story, as found proved, is that on 7/6/1996, at about 10 PM, complainant Tularam and his son Manoj were having dinner at the terrace of their house. After having the same, when Manoj got down and reached the Chowk (courtyard) outside his house, at that time, owing to previous enmity, Ramautar (since deceased), present appellant Mukesh and co-accused Rajesh reached there armed with Knives. Ramautar caught hold of Manoj, while Rajesh stabbed him on the adbomen due to which blood started oozing out and Manoj fell on the spot. Appellant Mukesh also caused knife injury on his right hand. Then Ramautar also dealt a knife blow on right shoulder of Manoj. When complainant Tularam came forward for his rescue, the present appellant Mukesh caused a knife injury on his head. Thereafter, Mahesh, Jitendra, Ramesh and Soneram tried to intervene. In the course of brawl, Jitendra and Meena also suffered injuries. Light was glowing in the courtyard. After the incident, the accused persons fled away. The complainant and family members of Manoj were bringing him in a Tractor to Morena but in the way to hospital, Manoj succumbed to the injuries so caused. Complainant Tularam lodged FIR (Ex.P/1) of the incident at Morena Police Station at about 11 PM, upon which crime was registered at 0/96. Thereafter, the matter was referred to concerned Police Station i.e. Matabasaiya, where the report (Ex.P/22) was regsitered on 8/6/1996 at 1.30 AM at Crime No. 61/96. During investigation, spot map & its description (Ex.P/2 & P/2A) was prepared by Mahesh Kumar Sharma (P.W.10). He seized plain and blood stained earth from the spot vide seizure memos (Ex.P/25 and Ex.P/26), issued Safina form (Ex.P/3), prepared Pancdhayatnama of the dead body (Ex.P/4) and forwarded application (Ex.P/23) to district hospital Morena for post mortem examination of the dead body of deceased. He also recorded statements of witnesses under section 161 of the Cr.P.C. On 14/6/1996, Ramautar, Mukesh and Rajesh were arrested vide arrest memos Ex.P/11, P/12 and P/13 respectively.

Thereafter, upon discovery memos (Ex.P/14 and P/15) knife and blood stained Dhoti were seized from Ramautar vide seizure memos (Ex.P/18 and P/19). Similarly, upon discovery memos (Ex.P/16 and P/17), knives were recovered from appellant Mukesh and co-accused Rajesh vide seizure memos (Ex.P/20 and P/21).

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

3. On being charged with the offence punishable under section 302 in alternative 302/34, IPC, the accused persons abjured the guilt and pleaded false implication.

4. To establish the charges, the prosecution examined as many as 10 witnesses including eye witnesses Tularam/complainant (PW1), Jitendra Sharma (PW2), Mahesh (PW3), and Sudha (PW6), whereas evidence of Mukesh (DW1), Ramawtar (DW2), Mahesh Sharma (DW3) and Mahesh Bhardwaj (DW4) were 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. It is noteworthy that co-accused Rajesh absconded during trial and, as indicated above, appellant Ramautar passed away during pendency of this appeal.

6. Post mortem examin