JUDGMENT

1. The appellants have preferred present criminal appeal under section 374 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the impugned judgment of conviction dated 1.8.2011 passed by the Second Additional Sessions Judge,( Fast Track Court) Jobat District Alirajpur (M.P.) in Sessions Trial No. 114/2010 whereby the appellants have been convicted and sentenced as under:-

2. The facts of the case in brief are that on 1.3.2010 complainant Raman (PW-4) lodged an FIR (Ex.P-15) at police station Kattiwada by stating that in the night he alongwith Haria and Basnibai went at village Khattal for seeing Holi function. At that time accused persons objected and asked “why you persons belonging to Dhanuk community came here for seeing Holi”. Thereafter some quarrel took place between them. When complainants Raman, Haria and Basnibai were returning to their village, on the way accused persons started beating Haria by means of Falia and wooden sticks. Accused Khuman assaulted Haria by means of Falia which hit him on the right side of head, Keharsingh also assaulted Haria by Falia which was also hit on the right side of his head and other co-accused also assaulted Haria by wooden sticks. Looking to the aforesaid incident, complainants Raman and Vasnibai ran away from the spot and narrated the incident to Namalia. Then they came with Namalia and search Haria. Dead-body of Haria was found near Kunda Nala. Accordingly offence has been registered.

3. Prosecution story in further is that Dr. N.S. Dawar (PW-10) performed the postmortem of the deceased and as per autopsy report four cut injuries were found on the occipital area, ears left side of the forehead and his death was homicidal in nature. The investigating Officer S.S. Bais (PW-11) went to the spot and prepared the Laas Panchanama of deceased and also prepared the spot map. He recovered blood stained and simple soil from the spot and on the basis of discovery statement of accused persons he recovered two different Falias from possession of accused Khumansingh and Kehar Singh. He also recovered blood stained shirt of deceased. All seized articles were sent to FSL Sagar for its chemical examination.

4. After due investigation, charge sheet was filed before CJM Alirajpur who has committed the case to the court of Sessions which was later on transferred to the court of Second Additional Sessions Judge Jobat for trial.

5. The prosecution examined as many as 11 witnesses while defense did not examine any witness. The trial Court after appreciating the evidence available on record, convicted and sentenced the appellants as mentioned herein above. Being aggrieved by the judgment of conviction and order of sentence, the appellants have preferred present appeal before this court.

6. Learned counsel for the appellants contended that the judgment of the trial Court is contrary to law and facts on record. It is neither legal nor proper nor correct. The trial court has not considered that the FIR was lodged by delay and no explantation of the delay has been given by prosecution. There is material contradiction in the statements of eye witnesses Basanibai (PW-3) & Raman (PW-4). The incident had taken place in the dark night. No independent witness has been examined by the prosecution. Appellants have already suffered jail incarceration for more than 13 years. The prosecution failed to prove its case beyond reasonable doubt. Conviction of the appellants is bad in law. He placed reliance upon judgment of Hon’ble apex Court in case of Jadu Yadav v. State of Bihar reportd in 1994 Cri.L.J. 1209. Hence, he prays that the appeal be allowed and the impugned judgment of conviction and sentence passed by the trial Court be set aside and appellants be acquitted from the charges.

7. Per contra, learned counsel for the respondent / State