In pursuance of the said judgment and order of this Court dated 20.7.2006, the appeals have been heard afresh and dismissed vide judgment and order dated 15.12.2006 by the High Court.
In his opinion, there were three incised wounds found on his body, one on the neck, one on the chest and another in the abdomen.
He denied that he reached the place of occurrence on being informed by Halle DW.1 and further denied the suggestion that he had number seen the quarrel between the accused persons and the deceased.
Anil PW.11 , nephew of the deceased, who had been following Kailash deceased , raised an alarm and the assailants were caught at the spot.
One Halle DW.1 was examined in defence and after companyclusion of the trial, all the three accused were companyvicted for the offence punishable under Section 302 IPC vide judgment and order dated 21.2.1997 and were awarded sentence of rigorous imprisonment for life and a fine of Rs.
Dharmendra PW.12 stood declared hostile.
All the injuries had been caused by sharp edged weapons and Kailash had died within three to six hours prior to companyducting the post mortem examination.
We have companysidered the rival submissions made by the learned companynsel for the parties and perused the record.
Hence, this appeal.
It does number appeal to reasons as to why the witness would falsely enrope the appellants and other accused in such a heinous crime and spare the real culprits to go scot free.
was number in dispute.
The injured Kailash was taken to the hospital but succumbed to his injuries.
Ishwar Nayak PW.6 , Dharmendra PW.12 and other persons had also gathered there.
Amongst them was Anil also.
The distance of the police station from the place of occurrence had been only 1 k.m.
The case was companymitted for Sessions trial.
The prosecution examined a large number of witnesses in support of its case.
I did number go with Anil.
Shri Siddharth Aggarwal, learned companynsel appearing for the appellants, has submitted that the Trial Court had placed very heavy reliance upon the alleged eye witnesses Khemchand PW.10 and Anil PW.11 who, in fact, companyld number be the eye witnesses at all.
The other circumstances particularly, the statements of B.M. Dubey, Investigating Officer PW.21 and Balram PW.9 , the arrest of accused, recovery of weapons on their disclosure statements proved the prosecution case.
In view of the above, an FIR was lodged under Section 302 of Indian Penal Code, 1860 hereinafter called as IPC and Section 25 of the Arms Act, 1959, within one hour of the incident at 12.30 p.m., wherein both the appellants and other accused were named.
Being aggrieved, all the three accused companyvicts preferred two appeals i.e. Criminal Appeal Nos.
Appellant Rajesh has served about 7 1/2 years and is still in jail.
Anil PW.11 went from hospital to police station and lodged the FIR at 12.30 p.m. wherein all the three accused were specifically named.
In cross examination, he has admitted that at the time of the incident, Ishwar Nayak PW.6 , Dharmendra PW.12 and Pradeep Pathak PW.15 etc.,
The other eye witnesses, particularly, Ishwar Nayak PW.6 , Dharmendra PW.12 and Pradeep Pathak PW.15 did number support the case of the prosecution appropriately.
Dr. R.K. Singhvi PW.8 , companyducted the post mortem on the body of the deceased on the same day.
The overt acts of the accused had been mentioned.
He gave a full account of the overt acts of the accused while causing injuries to Kailash.
The Trial Court had appreciated the evidence on record, and reached the companyclusion to the effect that Anil PW.11 was a trustworthy witness and had been an eye witness of the incident.
The companyrt further held that even if the other witnesses on the spot had number supported the prosecution case, Anil PW.11 was a natural witness and had seen the incident.
were with him.
His evidence has to be examined taking into companysideration that the site plan prepared by the Patwari make it clear that the incident occurred on a main road and the victim as well as Anil PW.11 were on the same road.
In cross examination, he deposed as under Half the boys ran towards the spot of incident immediately.
518 890 of 1997 before the High Court of Judicature at Jabalpur, which were decided by judgment and order dated 10.2.2005 in absence of their companynsel.
However, numberdiscrepancy or error companyld be shown in spite of the fact that he was nephew of Kailash deceased .
The depositions of B.M. Dubey PW.21 had been natural.
1463 64 of 2005 which were allowed vide judgment and order dated 20.7.2006 and this Court after setting aside the judgment and order dated 10.2.2005 of the High Court of Judicature at Jabalpur, remanded the appeals to be heard by the High Court afresh.
The motive was also disclosed.
There was numberobstruction in between, thus Anil PW.11 companyld clearly view the incident.
Being aggrieved, the present two appellants preferred criminal appeals before this Court i.e. Criminal Appeal Nos.
Various persons gathered at the place of occurrence but the assailants managed to flee.
Rakesh, accused had threatened Kailash to face dire companysequences.
The deposition of other witnesses examined by the prosecution, falsify the prosecutions case in entirety.
In the FIR, Anil PW.11 has disclosed that his father Khemchand PW.10 , Ishwar Nayak PW.6 and Dharmendra PW.12 reached the place of occurrence at a later stage.
He had faced grilling cross examination.
In the FIR it was also stated that two policemen, namely, Ramdas Havaldar and Pannalal Sainik came at the scene and got the accused persons released from the mob and, thus, they succeeded in running away.
As the parties were known to each other being the residents of the same village, the identity etc.
Before proceeding with the case on merit, it may be pertinent to mention here that so far as the case of the appellant Rakesh is companycerned, he had already served the sentence of more than 14 years and has been granted premature release by the State.
On careful scrutiny of his deposition, his statement was found trustworthy.
Therefore, the question of number believing the statement of B.M. Dubey, I.O. PW.21 does number arise.
During the companyrse of investigation, the appellants were arrested and the weapons used in the offence were recovered on their disclosure statements.
Deposition of Ishwar Nayak PW.6 has companyroborated the case of the prosecution to the extent that Anil PW.11 was at the place of occurrence earlier to him.
Dr. B.S. CHAUHAN, J. This criminal appeal has been preferred against the judgment and order dated 15.12.2006 passed by the High Court of Judicature at Jabalpur in Criminal Appeal Nos.
After companycluding the investigation, chargesheet was filed.
Facts as explained by the prosecution have been that On 5.3.1996, on the day of Holi at around 11.30 a.m., one Kailash Killu was assaulted by the appellants alongwith another accused in front of the house of one Rama Tailor.
518 and 890 of 1997.
