HIGH COURT OF MADHYA PRADESH GWALIOR BENCH DIVISION BENCH G.S. AHLUWALIA &

DEEPAK KUMAR AGARWAL J.J.

Cr.A. No. 5079 of 2019 Balram and another Vs.

State of M.P.

Shri C.P. Singh Counsel for the Appellant Shri A.P.S. Tomar Counsel for the State Shri D.S. Rajawat, Counsel for the complainant Date of Hearing : 03-01-2022 Date of Judgment : 6^th /Jan/2022 Approved for Reporting :

Judgment

6^th- January -2022 Per G.S. Ahluwalia J.

1. This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 4-4-2019 passed by Additional Sessions Judge, Pichhore, Distt. Shivpuri in S.T. No. 106/2016, by which the appellants have been convicted and sentenced for offence under Section 302/34 of I.P.C. and have been awarded Life Imprisonment with fine of Rs. 500/- in default 3 months R.I.

2. It is not of place to mention here that FIR was lodged against four persons and the present appellants namely Balram and Ramjilal were absconding and were arrested on 5-10-2016 and a separate trial has been conducted, whereas the remaining two co-accused persons namely Govind Das and Gudda @ Rameshwar were tried in S.T. No. 106/2009 and by judgment and sentence dated 23-2-2010 passed by Add. Sessions Judge, Pichhore, Distt. Shivpuri they too have been convicted for offence under Section 302/34 of IPC and have been awarded Life Imprisonment and a fine of Rs. 2000/- in default 6 months R.I. Govind Das and Gudda had also filed Cr.A. No. 227 of

2010, which has also been heard along with this Criminal Appeal.

3. Since, the co-accused Govind Das and Gudda @ Rameshwar were tried separately and evidence was also recorded afresh and in the light of the judgment passed by the Supreme Court in the case of A.T. Maydeen and another Vs. The Asstt. Commissioner, Customs Department decided on 29-10-2021 in Cr.A. No. 1306 of 2021, the evidence recorded in the trial of the appellants cannot be read either in favor or against the co-accused Govind Das and Gudda, therefore, their appeal is being decided by a separate judgment.

4. The prosecution story in short is that on 18-1-2009 at about 11:55, the complainant Krishna Bihari Singh Tomar, came to the Police Station Bhonti, Distt. Shivpuri along with his injured son who was in an unconscious condition and lodged an F.I.R. that about 10- 11 months back, they had purchased land from the nephews of appellant no.1-Govind Das and from the said date, the appellants and co-accused persons were having enmity with the complainant and his family. It was further alleged that today at about 11:30 A.M., the complainant was in his field, whereas his son Mohan Singh was coming to the field. The moment he reached near the field, he was challenged by the appellants. The appellant no.1 was carrying Lathi, whereas appellant no.2-Gudda was having Baka. The accused Balram was having Sword, whereas Ramjilal was having Katar. They asked Mohan Singh to leave the field. In reply, Mohan Singh stated that they have purchased the land. On this issue, the appellant no.2-Gudda caused an injury on the nose of Mohan Singh by Baka, whereas Balram gave a sword blow on the wrist of left hand. Ramjilal also gave a Katar blow on the left hand. Appellant no.1-Govind Das assaulted him by Lathi. His son Mohan Singh was raising alarm and thereafter he fell down. When the complainant, Radhe and Indrapal tried to save him, then all the four accused persons ran away.

5. The police immediately sent the injured Mohan Singh to P.H.C., Manpura, from where the injured was referred to Distt. Hospital, Shivpuri. The police took the injured Mohan Singh to Distt. Hospital Shivpuri, where he was declared dead. The police after recording the statements of witnesses, arrested the co-accused persons. After completing the investigation, the police filed charge sheet under Sections 302, 294 and 34 of I.P.C. as well as under Section 25(1-B) of the Arms Act. However, the appellants were absconding.

6. The appellants were arrested on 5-10-2016 and accordingly, s