JUDGEMENT

The present appeal under Section 374 (2) of Code of Criminal Procedure (for brevity "Cr.P.C.") has been filed by the appellants against the judgment of conviction and sentence dated 16.12.2013 passed by the Sessions Judge, Panna in Sessions Trial No.121/2012, whereby the appellant No.1 has been convicted for offence under Section 302 of I.P.C. and the appellant Nos.2 to 5 have been convicted for offence under Section 302/34 of I.P.C. All the appellants have been sentenced to undergo Life Imprisonment with fine of Rs.5,000/-, with default stipulations.

2 . T h e prosecution case in brief is that on 09.08.2012, deceased Mahendra @ Maddhu, who was son of complainant Beta Lal had taken lunch and then left to graze buffaloes at Patha Har. After the deceased left, complainant Beta Lal (PW-16) along with his wife Ramkali (PW-15) also left for Patha Har to take fodder for cattle. The complainant Beta Lal saw the deceased Mahendra grazing buffaloes near field of Bhudar Lodhi at Patha Har. The complainant PW-16 was preparing fodder in the same field. At that time, the complainant heard cries of distress of deceased and then saw that the appellant No.1 - Lal @ Virochan was assaulting the deceased with lathi. The complainant ran to rescue the deceased. Deceased was crying and running towards Simri and the appellant No.1- Lal @ Virochan was following him and hitting him repeatedly with lathi. The deceased fell down near the field of Lakkhu Gadari and at that time the other accused persons also reached the spot. When the complainant PW-16 and his wife PW-15 reached the spot, all the accused persons left the spot and appellant No.1 - Lal @ Virochan left for his home with lathi. Sitaram Gadari (PW-18) and Sunita (PW-17) were stated to be eye witnesses of the incident.

3. The deceased was taken for treatment by motorcycle to Pawai, but as his condition was critical, he was referred to Katni, but he expired on the way.

4. Merg intimation (Exhibit P-8) was lodged by Parsad Lodhi, who is grand father of the deceased. Thereafter, FIR (Exhibit P-6) was lodged under Section 307/34 I.P.C. against appellant No.1 - Lal @ Virochan and other unnamed persons. This FIR was registered as "zero". Thereafter, FIR (Exhibit P-7) at Crime No.95/2012 was registered on 10.08.2012 against Lal @ Virochan (appellant No.1) and other unnamed persons.

5. The medico legal examination of the deceased was carried out by Dr. M.L. Choudhary (PW-14). Incidentally, the same Doctor (PW-14) carried out the postmortem examination. As per postmortem report (Exhibit P-26), the cause of death was stated to be multiple injuries on skull, upper arm and forearm and the death was stated to be homicidal in nature. As per the postmortem report, there were nine injuries on the body of the deceased, which included five lacerated wounds with fractures in skull.

6. There was bleeding in the brain and the brain was full of blood. Apart from that there were two fractures in both the arms. All the injuries were stated to be ante-mortem in nature. On the basis of statement recorded and material collected during the course of investigation by the Police, charge sheet was filed before the Magistrate against appellants under Sections 307, 302, 120-B and 34 of the I.P.C. The case was committed to the Sessions Court and the Sessions Court framed charges under Sections 302/34 of I.P.C.. The appellants denied the charges and claimed to be tried. After trial, the appellants have been convicted of charges and awarded sentence as mentioned in para 1 of the judgment above.

7. Learned counsel for the appellant while pressing the case of appellants submits that the prosecution story is doubtful. It is, however, fairly admitted that the case of the appellant No.1 is on different footing from that of appellant Nos.2 to 5.

8. It is argued that as per Merg Intimation (Exhibit P-8), which has been registered by Parsad (PW-6), who is grand father of the deceased, it is mentioned th