Rajesh Kumar & Anr vs State Of Madhya Pradesh

B.K.Shrivastava, J

Criminal Appeal No.2596/2008 has been filed by appellant Rajesh on 11.10.2008 against the judgment dated 15.11.2008 passed in S.T. No. 169/2003 by the Additional Sessions Judge, Sohagpur, District Hoshangabad. Criminal Appeal No. 1674/2012 has been filed by appellant Kailash Singh on 6.8.2012 against the judgment dated 11.7.2012 passed in the same S.T. No. 169/2003 by the Additional Sessions Judge, Sohagpur, District Hoshangabad.

As per prosecution case, complainant Karan Singh Raghuwanshi S/o Harikishan, R/o Village Navalgaon, Police Station Sohagpur, District Hoshangabad was going on motorcycle on 12.9.2002 from Sohagpur market to Navalgaon with Rammurty and Prem Narayan. When they reached nearby Nahar Ki Puliya, Navalgaon Road at about 7:00 p.m. in the evening, accused Mohan Patel, Kailash Purviya and Rajesh restrained them. They were holding lathis in their hands. There was enmity between the parties upon the election because in the previous election Prem Narayan supported Ram Gopal and Mohan Patel supported Raju and Kamlesh. Due to aforesaid enmity Mohan, Kailash and Rajesh assaulted to complainant and his two colleagues. Rammurty ran away from there. The accused persons followed him but could not catch him. During this incident, the other colleagues of accused persons also reached there and participated in the crime. They also beat the complainant and Prem Narayan. When accused persons left the spot, Rammurty came back on motorcycle and they reached to the Police Station, Sohagpur where Karan Singh lodged the first information report No.235/2002 on 12.9.2002 at 19:30 p.m.

The police registered Crime No. 235/2002 under sections 308, 341 and 323/34 of I.P.C. and forwarded the injured persons for medical examination. Prem Narayan expired on 15.9.2002 at 9:50 a.m. in Hamidia Hospital, Bhopal. Therefore, offence under section 302 of I.P.C. also included. Police issued notice Ex. P-29 and prepared inquest panchnama Ex. P-30 and sent the body for postmortem vide Ex. P-31, prepared the spot map Ex. P-19 and recorded the statements of various witnesses, collected the medical reports Ex. P-11 and P-12 and postmortem report Ex. P-33 and summary report Ex. P-34. After investigation, police came to the conclusion that 8 accused persons committed the crime. Therefore, the police filed Challan No. 283/2002 under sections 147, 148, 308, 351, 323 and 302/149 of I.P.C. against 8 accused named Mohan Singh, Raja Patel, Rakesh Kumar, Supyar, Halke alias Kanhaiya, Kailash, Khemchand and Raju alias Raja. Because Raju alias Raja was absconded therefore, the challan was filed by showing him as "absconded accused". The Judicial Magistrate First Class, Sohagpur registered Criminal Case No. 288/2002 and committed the case to the Court of Sessions on 7.3.2002. Supplementary challan was also filed against the absconded accused Raja alias Raju and Judicial Magistrate First Class Sohagpur also committed the aforesaid case to the Court of Sessions on 9.5.2003.

In Sessions Court, Hoshangabad the Sessions Trial No. 169/2003 was registered and made over on 14.7.2003 to the Third Additional Sessions Judge, Sohagpur.

The trial court framed the charges on 15.4.2005. Accused persons denied the charges and demanded for trial. Thereafter prosecution examined 26 witnesses in support of its case. Defence did not examine any witness. During trial, when Kailash was absent, the Court issued arrest warrant against him on 13.2.2006, but the accused could not be arrested, the Court declared him as "absconded accused" on 3.3.2008. After recording the remaining evidence, the Court passed the judgment on 15.11.2008 against 7 accused persons. The Court held guilty only Mohan Singh and Rajesh Kumar (appellant). When Kailash arrested, opportunity to examination of the witnesses was provided. Thereafter the Court passed the subsequent judgment on 11.7.2012 and held the accused Kailash guilty. The trial court convicted the appellant Rajesh under sections 148, 308/149, 341 and 302/149 of IPC and sentenced him 2 years rigorous imprisonment with fine of Rs.500/- for the offence under section 148 of IPC, 5 years rigorous imprisonment with fine of Rs.500/-for the offence under section 308/149 of IPC, fine of Rs.500/- for the offence under section 341 of IPC and life imprisonment with fine of Rs.1000/- for the offence under section 302/149 of IPC, with default stipulations. The trial court convicted Kailash for the offence under sections 148, 302/149, 308/149 and 341 of IPC and passed the sentence of 2 years rigorous imprisonment with fine of Rs.1000/- for the offence under section 148 of IPC, 5 years rigorous imprisonment with fine of Rs.1000/- for the offence under section 308/149 of IPC, 1 month simple imprisonment for the offence under section 341 of IPC and life imprisonment with fine of Rs.1000/- for the offence under section 302/149 of IPC, with default stipulations.

It is submitted by the appellants that the conviction and sentence awarded by the Court below are erroneous on law and facts. The trial court did not appreciate the entire evidence and ignored the major omission and contradictions found in the evidence of prosecution witnesses. The trial court did not place reliance upon the dying declaration but convicted the appellants. Karan Singh (P.W.15) says that he was assaulted by pipe but the reference of pipe is not mentioned in the first information report. The appellants were falsely implicated due to enmity of election but the trial court committed mistake by passing the judgment of conviction and by awarding the sentences. Counsel also argued that the matter does not come under the category of 302 of IPC. If the case is found proved then offence can only be made out under Section 304 Part-I of I.P.C. or under Section 304 Part-II of I.P.C. But the trial court committed the mistake by holding guilty the appellants for the offence under section 302/149 of IPC. Upon the same set of evidence other co-accused have been acquitted. Therefore, the appellants are also liable to be acquitted. Hence, it is prayed that both the appeals be allowed and acquit the appellants.

On the other side, the State strongly opposed the appeals. It is submitted by the State that by producing sufficient evidence, the prosecution proved its case beyond reasonable doubt. The trial court held the appellants guilty after proper appreciation of the evidence. The evidence of eyewitnesses is found reliable. Therefore, no interference is required and both appeals are liable to be dismissed.

Kamlesh PW-1 and Jalam Singh PW-2 are related to the arrest of accused Hakke and his memo and seizure of lathi Ex. P-1, P-2 and P-3. Anant Kumar Raghuwanshi PW-5, Awadhesh Kumar Tiwari PW-9 and B.K.S. Parihar PW-23 are related to the arrest, memo and seizure of accused Mohan Ex. P-8, P-9 and P-10. PW-8 Dwarka Mishra is related to the memo, seizure and arrest Ex. P-13, P-14 and P-15 of accused Raja Patel. Because accused Hakke, Mohan and Raja Patel have been acquitted by the trial Court, therefore, marshalling of evidence of aforesaid witnesses is not necessary.

Rajesh Kumar PW-10, Ramgopal PW-14 and Rakesh Singh PW-11 are related to the seizure by which a sealed packet brought by Ramgopal from Hospital contained clothes of the deceased, seized by the police. This fact is also not in dispute. Lakhan Singh Constable is related to Ex. P-22 by which the sealed packet of clothes of Premnarayan brought by Constable Kamlesh from Hamidia Hospital seized by Constable Satish Kumar on 18/09/2009. This fact is also not in dispute.

As per F.I.R. when the incident took place, at that time, Karan Singh Raghuwanshi PW-15, Ramnarayan PW-13 and Prem Narayan (deceased) were going on motor-cycle. The incident took place on 12/09/2002 and Prem Narayan expired on 15/09/2002 at 9:30. Therefore, as per prosecution case, Rammurti PW-13 and Karan Singh Raghuwanshi PW-15 are the eye-witnesses of the incident and they are also injured persons. Dr. G.C. Soni PW-6 is B.M.O. posted at Primary Health Center, Sohagpur. The witness proved the report Ex. P-12 given by him in reference to the medical examination of Karan Singh Raghuwanshi. As per statement of Dr. Soni, he examined Karan Singh Raghuwanshi on 12/09/2002 and found five injuries caused by hard and blunt object within one to three hours. The injuries are:-

Lacerated wound, fresh bleeding present 3x2 cms. left side upon the head.

Contusion 2x1 cms. behind the left hand.

Contusion 2x2 cms. behind the right hand.

Lacerated wound 4x1 cms. upon left side of abdomen.

Lacerated wound 2x1 cms. situated upper side of the injury no. 4.

The Doctor also said that he referred the patient to the District Hospital Hoshangabad for necessary treatment and X-ray etc.

Dr. N. Hassan PW-18 is the Radiologist posted at District Hospital Hoshangabad who conducted the X-ray of Karan Singh on 13/09/2002. The Doctor said that he conducted the X-ray of head, left fore-arm and right fore-arm. After X-ray, he found the following fractures :-

(i). Fracture of upper portion of left fore-arm. (ii). Fracture of middle-shaped of right alna. (iii). Fracture in the head.

The Doctor proved his report Ex. P-23 and the X-ray plates Ex. P-24 to P-27. Therefore, looking to the evidence of Dr. N. Hassan and Dr. G.C. Soni, it can be said that the prosecution proved the fact that Karan Singh sustained five injuries, out of them, three injuries were grievous in nature.

Dr. G.C. Soni PW-6 also said that on 12/09/2002, he examined Prem Narayan in P.S.C. Sohagpur and found five injuries caused by hard and blunt object within one to three hours. The injuries are:-

(i). Lacerated wound 2x1 cms. upon behind left shoulder.

(ii). Lacerated wound 2x1 cms upon behind the left elbow.

(iii). Lacerated wound, fresh bleeding present, 2 cms.x2cms. in frontal side of head.

(iv). Lacerated wound 2x2 cms. upon front side of right knee.

(v). Lacerated wound 3x2 cms. upon upper side of left knee.

The Doctor said that he referred the patient to District Hospital, Hoshangabad. It is not disputed that Prem Narayan expired on 15/09/2002 at 9:30. S.S. Jodan PW-22 is the Assistant Sub-Inspector posted at Police Station Kohafiza Chowki, Hamidia. The witness said that he received the merg diary of merg no. 283/02 on 15/09/2002. Thereafter, he reached to Hamidia Hospital and issued the notice Ex. P-29 for witnesses. Thereafter, in the presence of witnesses, he prepared the Inquest Panchnama Ex. P-13 and, thereafter, sent the dead body for post-mortem with memo Ex. P-31. After post-mortem, he hand over the dead body of Prem Narayan to his brother Bhaiyalal vide memo Ex. P-32. Amrit Lal Yadav PW-21 is the A.S.I. posted at Police Station Sohagpur who has written the M.L.C. application Ex. P-28 related to Prem Narayan. This witness also filed the challan on 17/12/2002.

Dr. Vikas Kumar Dhruv PW-25 is the Medical Officer posted at Medico Legal Institute, Bhopal who conducted the post-mortem of dead body of Prem Narayan on 15/09/2002. He said that fractures found in the body and left hand was turned because of broken bone and blood was oozing from both nostrils. The Doctor said that he found 15 injuries upon the body of Prem Narayan.

चोट क्र0 1. टांका लगा हुआ घाव, दाहिनी कोहनी के पृष्श्ठ भाग में कोहनी के ठीक नीचे मौजूद था, जिसमें दो टांके लगे हुये थे ।

चोट क्र0 2. खरोंच का निषान बाये घुटने में सामने की ओर एक से.मी. गोलाकृति में मौेजूद था ।

चोट क्र0 3. मूंदी चोट रेल टेकनुमा दाहिनी जांघ में घुटने से 23 से.मी. ऊपर सामने की ओर 6ग3 से.मी. के आकार में तिरछी दिषा में मौजूद थी जिसका बीच का भाग स्वरूप था ।

चोट क्र0 4. रेल टेकनुमा मूंदी चोट बायी भुजा में सामने व बाही की ओर कंधे के ऊपरी भाग से 23 से.मी. नीचे 5ग3 से.मी. के आकार में तिरछी दिषा में मौजूद था जिसका बीच का भाग स्वरूप था ।

चोट क्र0 5. रेल टेकनुमा मूंदी चोट बाये कोहनी के सामने के भाग में 5 ग0ण्5 से.मी. के आकार में मौजूद था, जो कि आधारदिषा में था ।

चोट क्र0 6. रेल टेकनुमा मूंदी चोट बायी भुजा में कोहनी से 5 से.मी. ऊपर सामने के भाग में 5ग0ण्5 से.मी. के आकार में मौजूद था जो कि आधार दिषा में था ।

चेाट क्र0 7. बाये भुजा में भाग में सूजन मौजूद थी तथा इसके अंदरूनी भाग में ह्मरस हड्डी टूटी हुई थी जो कि एक से अधिक जगह पर थी इस हिस्से पर मुलायम ऊततकों में इकाई मेसिस मौजूद था ।

चोट क्र0 8. मंूदी चोट बाये भुजा के मध्य भाग में 6ग10 से.मी. के क्षेत्र में सामने व बाहर की ओर मौजूद थी ।

चोट क्र0 9. मंूदी चोट बायें कंधे में 12ग5 से.मी. के क्षेत्र में मौजूद थी ।

चोट क्र0 10.  रेल टेकनुमा मंूदी चोट बाये पीठ में, बाये पीठ के भाग में स्केपुला के मध्य भाग में 13ग28 से.मी. के आकार में तिरछी दिषा में मौजूद थी जिसका मध्य भाग स्वस्थ्य था ।

चोट क्र0 11. रेल टेकनुमा चोट दाहिनी भुजा में मध्य के भाग पर सामने व बाही की ओर 7ग3 से.मी. आकार में तिरछी दिषा में मौजूद थी, जिसका मध्य भाग स्वस्थ्य था ।

चोट क्र0 12. बायी हथेली तािा उसके पृष्ठ भाग में तथा कलाई में सूजन मौजूद थी इसके नीचे अंदरूनी भाग में मेटाकार्पल हड्डी में फैक्चर मौजूद था तथा मुलायम उत्तकों में ईकाई मोसिस मौजूद था ।

चोट क्र0 13. मंूदी चोट बायी जांघ में मध्य भाग में सामने व बाहर की ओर 13ग18 से.मी. के आकार में मौजूद थी इसके नीचे मुलायम उत्तकों में ंईकाई मौसिस मौजूद था ।

चोट क्र0 14. मंूदी चोट दाहिनी जांघ में सामने व बाही की ओर घुटने से लगा हुआ 10ग12 से.मी. के आकार में मौजूद था तथा इसके नीचे घुटने के पटेला हड्डी अपनी जगह से खिसक गई थी तथा मुलायम उत्तकों में ईकाई मोसिस मौजूद था ।

चोट क्र0 15.  सिर की चमड़ी में पिछले भाग में ईकाई मौसिस मौजूद था, खेपड़ी सबूत थी, तथा मस्तिश्ष्क में एरिकनाइट के नीचे रक्त साव मौजूद था ।

The Doctor also said that all the injuries were ante-mortem and caused by hard and blunt objects. He explained that the injuries like Railway track were caused by hard and blunt object like lathi and the other injuries were caused by hard and blunt object. He also stated that the death was the result of the injuries and their complications and the death was homicidal. He proved the post-mortem report Ex. P-33. Therefore, it appears that the death of Prem Narayan was homicidal and was the result of multiple injuries caused by hard and blunt object.

Now, we see the statements of eye-witnesses Karan Singh PW-15 and Rammurty PW-13. The trial Court placed the reliance upon the statement of Karan Singh Raghuwanshi PW-15. Karan Singh Raghuwanshi PW-15 said that on 12/09/2002 he had gone to Sohagpur and at about 6:30 to 6:45 in the evening, he was returning with Prem Narayan and Rammurty. He himself was driving the motor-cycle and Prem Narayan was sitting behind him and Rammurty was also sitting behind Prem Narayan. Near Nahar Ki pulia, he saw Mohan, Raja and Kailash. Kailash assaulted by lathi upon the left elbow of the witness. Supiyar also came there. Kailash and Supiar assaulted the witness. Rajesh came there who assaulted upon the head by the help of iron rod. The witness again said that Rammurty fled away towards the other side of the railway line. Prem Narayan fell down and came under the motor-cycle. Thereafter, Mohan, Raja and Kailash assaulted to Prem Narayan by means of lathi. He again said that Rajesh, Kailash and Supiyar further assaulted to Prem Narayan. Kailash took the pipe from Rajesh and assaulted Prem Narayan upon his head. Rajesh and Supiyar also caused the injury to Prem Narayan. Rammurty was crying for saving. Thereafter, some villagers came, then the accused persons fled away. The witness also said that he brought to Sohagpur upon motor-cycle by Rammurty and Ashok and Prem Narayan was brought upon motor-cycle by Ramesh and Madan. The witness also said that he lodged the F.I.R. Ex. P-21 in the Police Station Sohagpur. Kunwar Singh Mukati PW-26 said that he was posted as Sub-Inspector at Police Station Sohagpur on 12/09/2009. On the said date at about 7:00 P.M., Karan Singh lodged the F.I.R. Ex. P-21 and the witness note down the aforesaid report and registered Crime No. 235/02 under Sections 308, 341 and 323/94 of I.P.C. Thereafter, he forwarded the Karan Singh for medical examination with the application Ex. P-12-A.

The Defence cross-examined witness Karan Singh at length. The witness denied in para 8 that at the time of incident, there was darkness. He denied the suggestion in para 12 that when he was beaten, at that time, Prem Narayan fled towards the railway line. He also denied that Prem Narayan sustained injury by stone laying on the railway line. He also denied the suggestion that Prem Narayan was not assaulted by anybody. He admitted in para 13 that when he fell down, Rammurty fled away and no one followed Rammurty. He explained in para 16 that Kailash came in front of motor-cycle. If we examine the entire cross-examination of the witness, then it come into the notice that except for some minor contradictions and omissions, no any substantial change is found in the statement of the witness from his previous statement given to the police. The presence of this witness upon the spot cannot be doubted because the witness also sustained grievous injuries which are supported by the Doctors. No any personal enmity is pointed out, therefore, the trial Court rightly placed reliance upon the statement of aforesaid witness.

The presence of Rammurty Ex. P-13 is also proved from the statement of Karan Singh. Rammurty supports the incident of assault upon Karan Singh and Prem Narayan but did not confirm the identity of accused persons. The prosecution declared him as hostile witness. The witness has been cross-examined by the prosecution and in para 7, he admitted that he gave the statement Ex. P-20 to the police in which he said that near the field of Madhav Singh, Mohan, Badal, Raja, Rajesh, Kamlesh, Supiyar, Hakke, Raju and Khemchand were present in front of Nehar Ki Pulia and all were holding lathi and rod. They came in front of motor-cycle and Kailash attacked upon the hand of Karan Singh who was driving the motor-cycle. Thereafter, they all three fell down with the motor-cycle. Witness Rammurty admitted the police statement Ex. P-20. His presence is also proved from the evidence of Karan Singh Raghuwanshi. It also appears from the examination of the witness that he is well-known to all the accused persons. Therefore, it can be said that the witness deliberately not disclosed the identity of accused persons and their involvement in the crime. Therefore, his statement cannot affect the prosecution case because the statement of Karan Singh is reliable from all corners. Looking to the statement of Karan Singh, it can be said that Rammurty was not telling the truth.

In this case, Kunwar Singh Bhukati PW-26 also recorded the statement of Prem Narayan under Section 161 of I.P.C. on 12/09/2002. Since, Prem Narayan has been expired, therefore, this statement come under the purview of "dying declaration" under Section 32 of the Evidence Act. But the trial Court in para 38 to 40 did not rely the aforesaid statement upon the ground that Kunwar Singh Bhukati did not took the certificate from the Doctor regarding the fit mental condition of the witness before recording the aforesaid statement, while, the witness took the signature of two witnesses who were present at the time of recording the statements. Out of them, one witness, Umesh Raghuwanshi PW-16 was also examined who supports the fact that the Police recorded the statement of Prem Narayan in his presence and he signed the aforesaid statement. But it appears from the record that due to ignorance of the prosecution, the aforesaid statement has not been exhibited. In the evidence, the signature of Umesh Raghuwanshi also not shown to the witness. If the prosecution relied upon any document, then it should be exhibited and if any witness said that he signed the document, then signed should be marked during his evidence, but the prosecution did not comply the aforesaid requirements. In the aforesaid situation, the trial Court rightly held that the dying declaration is unproved.

Diwan Singh PW-3 and Ramesh PW-7 are related to the arrest memo of Kailash Ex. P-6, information memo under Section 27 of the Evidence Act Ex. P-4 and seizure Ex. P-5. R.S. Raju PW-24 said in para 4 to 6 that he arrested accused Kailash on 13/09/2002 and prepared the arrest memo P-6. He interrogated Kailash and Kailash gave the information that the lathi has been kept in his house. Thereafter, the witness prepared the memorandum P-4 and in furtherance of the aforesaid information, Kailash gave the lathi sized five feet ten inch. The witness prepared the Panchnama Ex. P-5 and seized the aforesaid lathi. Diwan Singh PW-3 and Ramesh PW-7 are the witnesses of Ex. P-4, P-5 and P-6 but they did not support the arrest, seizure and memo. Both are declared hostile. The statement of R.S. Raju PW-4 is found reliable.

Therefore, the statement of Diwan Singh and Ramesh cannot affect the prosecution case. Seizure of lathi is a supporting evidence. The case may be proved without seizure of lathi because the statement of Karan Singh shows that Kailash attacked upon Prem Narayan and upon the witness himself by means of lathi and rod.

Ashok Kumar PW-12 is related to seizure of lathi from accused Rajesh. He said in para 2 that the police seized lathi Ex. P-18 by Rajesh. It is true that the witness has been declared as hostile witness and the prosecution cross-examined the witness. In para 4, the witness admitted that he signed Ex. P-18 after reading the document. Rajesh produced Lathi which was seized by the police but in the cross-examination, he admitted the suggestion of defence that the police told him that they have seized two lathis and he put his signature upon the seizure. The witness did not see the lathi but signed the document. In reference to this evidence, it can also be said that the seizure of lathi is not important fact in this case. The case is based upon eye-witnesses.

Umesh Raghuwanshi PW-16 said that at about 7:15 P.M. on 12/09/2002, Rammurty gave the information through telephone. Thereafter, he proceeded to the place of incident, when he was on the way near Chilghar, he met with Pawan and Madhav Singh who were going upon the motor-cycle of Naresh with Prem Narayan. Thereafter, they all reached to the hospital with Prem Narayan.. As per witness, Prem Narayan was injured, blood was oozing from his head and he was also having various injuries upon both hand, both legs and chest.

Pawan Raghuwanshi PW-21 said that Prem Narayan was his uncle. On 12/09/2002 at about 6:30 to 7:00 in the evening, he was in his agriculture field. Thereafter, he heard the sound "बचचओ बचचओ मचर डचलच" which was coming from the side of railway line. When he saw towards the railway line, he found that Rammurty was crying. The witness reached there and found that Kailash, Mohan, Raja and Supiyar were beating to Prem Narayan by means of lathi and rod and Hakku, Rajesh and Raju were beating Karan Singh. The witness cried because his uncle Prem Narayan was lying there and sustained multiple injuries. Karan Singh also sustained various injuries. The most important fact said by the witness that when he asked his uncle that who assaulted him, then he told that Hakku, Rajesh and Raju also assaulted. The witness again said that he brought his uncle to Sohagpur Hospital upon the vehicle of Rammurty. In para 4, he denied the suggestion of prosecution that at that time, the night was dark. The witness explained that the time was of 'Ganpati celebration' and at that time, there was no any darkness. He said in para 5 that he well known to the accused persons. In para 6, he said that his uncle was lying near the railway track and Rammurty was in the opposite side who was crying. In para 11, it is pointed out upon the basis of the police statement Ex. D-9 that the name of Raju is not mentioned, in his police statement. Raju has been acquitted. Name of Kailash and Rajesh are mentioned in the statement. He denied the suggestion in para 15 that he and is father both beat Prem Narayan. The Defence did not produce any evidence in this regard. Therefore, the suggestion is baseless and the statement of this witness has also supported the case of the prosecution. The presence of this witness is also found reliable because the incident took place nearby the field of this witness.

Madhav Singh PW-20 is the father of aforesaid witness Pawan Raghuwanshi. This witness also said that at about 6:30 to 7:00 in the evening, he was in the agriculture field with his son Pawan, then he heard the sound of Rammurty who was crying "ददड़ड़यय मचर डचलच मचर डचलच". The witness again said that he was going to the place of incident, at that time, he saw all the accused persons were ran away from the spot. The witness reached near the railway line and found Prem Narayan and Karan Singh were lying in the injured condition having multiple injuries. Thereafter, the witness and his son Pawan rushed to Prem Narayan upon the vehicle of Naresh and reached the hospital. Karan Singh was brought by Rammurty. In para 10 of the cross-examination, the witness frankly admitted that he did not see the assault but he saw the accused persons with rod and lathis when they fled away from the spot. In para 16, he again admitted that he only seen the accused persons near the place of incident in running condition. No any reason is found in the testimony of Pawan Raghuwanshi and Madhav Singh to disbelieve their statement. Therefore, the prosecution case is also found support from the aforesaid two witnesses.

It is argued by learned counsel for the defence that upon the same set of evidence, other accused persons were acquitted, therefore, the present appellants are also entitled to get the acquittal. The Lower Court appreciated the entire evidence and it has come into the notice that the presence and participation of accused Kailash and Rajesh cannot be doubted. The evidence regarding other co-accused is not found reliable but involvement of other persons is proved. The prosecution did not file any cross-appeal against the acquittal. Therefore, this Court cannot examine the fact whether the acquittal of other accused persons is justified or not. As far as both appellants are concerned, sufficient evidence is available against them. Therefore, the trial Court did not commit any mistake by convicting both the appellants.

The Defence counsel cited Devshankar Vs. State of M.P. 2014 (1) M.P.W.N. 2, Jai Pratap Dubey Vs. State of M.P. 2011 (3) M.P.H.T. 405 (D.B.) and Badal Murmu and others Vs. State of West Bengal (2014) 2 S.C.C. (Cri) 179= (2014) 3 S.C.C. 366. Upon the basis of aforesaid case, it is argued by the Defence counsel that the offence come either under Section 304 Part-I or 304 Part-II but the trial Court committed the mistake by convicting the appellants for the offence under Section 302 of I.P.C. It appears from the prosecution case that when the deceased was returning with Karan Singh and Rammurty, at that time, all the accused persons armed with lathi and rod were present nearby the Pulia. Kailash assaulted by lathi to Karan when he was driving the motor-cycle. The presence of the accused persons upon that place also creates some doubt. Definitely, they pre-planned the incident and they were waiting for Prem Narayan and Karan Singh. They known the fact that the aforesaid persons had gone to Sohagpur and they will come back from the aforesaid place. Therefore, Sections 304 Part-I or 304 Part-II are not attracted. This is a clear cut case of murder of Prem Narayan because of enmity related to the election.

Therefore, it appears that the trial Court did not commit any mistake by convicting both the appellants. The sentence passed by the trial Court appears to be proper and justified. Hence, no interference is required.

Accordingly, both the appeals are dismissed.