The main legal point established in the judgment is the critical evaluation of witness testimony, the standard of proof, and the reliance on the testimony of a single eyewitness in criminal cases.

JUDGMENT

Arya, J. - Looking to the similitude of controversy involved, both these criminal appeals having arisen from same Sessions Trial are being disposed of by this common judgment.

1. These appeals, under Section 374 (2) Cr.P.C., arise out of the judgment dated 18.12.2000 passed by First Additional Sessions Judge, Gwalior in Sessions Trial No.116/1999, whereby appellant Bhupendra stands convicted for the offence punishable under Section 302 of IPC, while appellant Kalla alias Kallu Koli stands convicted under section 302 read with S.34 of the IPC.

Both the appellants have been sentenced to undergo imprisonment for life with fine of Rs.500/-, in default to suffer R.I. for six months. Co-convict Chandra Prakash alias Kallan S/o Rambabu Jha is reported to have expired on 28/1/2007 and consequently Cr.A. No.83/2001 preferred by him, stood dismissed as abated vide order dated 12/5/2008.

2. Prosecution story, as found proved, is that Badshah (since deceased) was in the business of Dairy and used to return home between 8-9 PM daily. On the fateful day of 30/11/1998, when he did not return, complainant Beer Singh and Rajendra Tomar went in his search. At about 10.30 PM, near Mohan Misthan Bhandar, they found that Badshah had been caught hold by appellant Kallan Koli and Kallan Luhar, while appellant Bhupendra Kushwah was stabbing him by a Baka. As complainant and his associate raised alarm, the miscreants fled away throwing Badshah on the ground.

On going near him, they found that Badshah was bleeding profusely from head and neck and had already succumbed to the injuries caused to him, having been assaulted by the aforesaid miscreants owing to previous animosity. Upon information to the aforesaid effect by complainant Beer Singh (PW3), FIR (Ex.P/13) was registered at Police Station Hazira, District Gwalior at Crime No.0457/98, whereupon report (Ex.P/17) was registered at Police Station Gwalior at Crime No.1006/98 for the offence punishable under section 302/34 of the IPC. During investigation, spot map (Ex.P/6) was prepared by ASI Chandrabhan Singh (PW5) and blood stained and plain earth was also seized vide seizure memo (Ex.P/10) from the spot. Panchyatnama Lash (Ex.P/2) was prepared on 1/2/1998 and on the same day the appellants were arrested vide arrest memo (Ex.P/3). Clothes were seized from co- accused Chandraprakash alias Kallan Luhar and appellant Kalla alias Kallu Koli vide seizure memos Ex.P/8 and Ex.P/9 respectively while, weapon of Offence viz. Baka was recovered vide seizure memo (Ex.P/7) at the instance of appellant Bhupendra upon his discovery memo (Ex.P/4) . On 1/12/98, the dead body of deceased was sent to J.A. Hospital for post mortem examination. After completion of the investigation, charge-sheet against the appellants was submitted in the Court of JMFC, Gwalior, who committed the case to the Court of Sessions for trial.

3. On being charged with the offence punishable under section 302, in alternative 302/34 of the IPC, the appellants abjured the guilt. In the examination under section 313 of the Code of Criminal Procedure, the appellants pleaded false implication due to prevailing enmity.

4. To establish the charges, the prosecution examined as many as 9 witnesses including Jaswant Singh (PW1), Jai Singh (PW2) complainant Beer Singh (PW3) and Rajendra Singh (PW4) as eyewitnesses to the incident though Jaswant Singh and Rajendra Singh have turned hostile, whereas evidence of only one witness viz. Devendra Singh (DW1) was recorded in defence.

5. On consideration of the evidence on record, the learned trial Judge, for the reasons recorded in the impugned judgment, found the appellants guilty of the offence charged with. He, therefore, convicted and sentenced them as indicated hereinabove.

6. Post mortem examination of deceased Badshah was conducted by Madhup Kumar (PW7). In the autopsy report (Ex.P/19), he noted following injuries:-

1. Chop wound on right parieto occipital region running posteriorily medially and downwards