Witness testimonies cannot be discarded solely due to their relation to the victim; evidence must be considered on credibility and context, with mitigating factors influencing sentencing.

JUDGMENT :

Prem Narayan Singh, J.

The present appeal has been filed on behalf of the appellant under Section 374 being disgruntled by the order dated 08.01.2024 passed in Sessions Trial No. 21/2021, whereby the appellant has been convicted for the offence under Section 304 (Part-II) of the INDIAN PENAL CODE , 1860 (hereinafter referred as to ' IPC , 1860') for 9 years R.I. with fine of Rs.5,000/- and default stipulation.

2. The Prosecution case, in a nutshell, is that on 04.06.2021, the complainant Pankaj S/o Shivram Bhagora alongwith his grandfather Raichand, his father Shivram and her mother Durgabai were preparing a hut for living in their own field. At the same time, Ambu Ganawa, Dinesh Ganawa, Ramesh Ganawa and Basantibai Ganawa resident of Kunwarjhar came there and said “why are they constructing a hut on that land”, by saying this, they started to abuse the complainant party. On refusal, the appellant took angle lying near the house of Kalu Khadiya and assaulted the complainant’s grandfather on his head and on face, due to which blood started oozing and Dinesh assaulted complainant’s father on the head and right leg, due to which, blooding was started. Ambu Ganawa threw a stone by catapult (gophan/gulel) on mother of the complainant Durgabai, which hit on right leg and Bansantibai also assaulted Durgabai with kick and fists. The incident was seen by complainant’s uncle (Mama) Lalsingh S/o Bhurji Ninama. The appellant Ramesh alongwith others gave threat for life to the complainant party. The injured were admitted in the hospital. An FIR was lodged by the complainant bearing Crime No. 299/2021 for the offence punishable under Sections 294 , 323, 506 & 34 of IPC , 1860 at Police Station Balakwada, District Khargone. The injured Raichand S/o Dayaram Bhagora was taken to the CHC Petlawad for primary treatment and thereafter referred to Dahod Hospital. While reaching on Dahod Hospital, injured Raichand expired. The said information was given to the police station bearing Merg No. 33/2021 and due to death of injured Raichand, offence under Section 302 of IPC , 1860 was aggravated.

3. The police after following the due procedure, prepared the spot map, taken the statements of the witnesses, seized the articles, prepared the medical documents, arrested the accused persons and after due investigation, the charge-sheet was filed and the case was committed to the Session Judge and thereafter, appellants were charged for offence under Sections 302, 294, 323, 506 & 34 of IPC , 1860. They abjured their guilt and took a plea that they had been falsely implicated in the present crime and prayed for trial.

4. In order to bring home the charges, the prosecution has adduced as many as 16 witnesses namely Shivram (PW-1), Durgabai, (PW-2), Ritubala, Lady Constable (PW-3), Ramsingh Damar, Patwari (PW-4), Pankaj Bhagora (PW-5), Ratan (PW-6), Lalsingh (PW-7), Raju (PW-8), Ramesh (PW-9), Jitendra Rawat, Constable (PW-10), Deepak (PW-11), Rakesh Mourya, Constable (PW-12), Digvijaysingh, Head Constable (PW-13), Munnalal Lashkari, Sub- Inspector (PW-14), Dr. Dharmesh Singh Baghel, Medical Officer (PW-15) and Richhusingh, Constable (PW-16). On behalf of defence, 01 witness namely Ramesh S/o Ambaram Ganawa was produced.

5. Learned trial Court, on appreciation of the evidence and argument adduced by the parties, pronounced the impugned judgment on 08.01.2024 and finally concluded the case and convicted the present appellant Ramesh S/o Ambu @ Ambaram for commission of offence punishable under Section 304 (Part-II) as mentioned in para No. 1 and also convicted the appellant Dinesh S/o Ambu @ Ambaram for commission of offence punishable under Section 323 of IPC , 1860 and sentenced to undergo for 06 months with fine of Rs.500/- and default stipulations while acquitted the appellants Ambu @ Ambaram S/o Bhurji and Shantibai for the offence under Sections 302/34, 323/34, 294 and 506 (Part-II) of IPC , 1860.

6. The appellant has preferred this criminal appeal on se