PUNCHHI - (1.) THIS appeal under Section 329 of the Code of Criminal Procedure has been preferred by Harish Kumar, Advocate and his brother, Ram Sharan, as of right, as they stand convicted for charges of murder and attempt to murder by the High Court of Madhya Pradesh vide order dated 25-8-1986, setting aside the orders of the Court of Session, whereunder the aforesaid two appellants and three others acquitted of all the charges. Now the acquittal of these three others stands maintained whereas the two appellants have been convicted and sentenced as under:- (i) Harish Kumar under Section 302, Indian Penal Code and Ram Sharan under Section 302/34, Indian Penal Code for the murderer of Virendra Kumar. Both sentenced to life imprisonment. (ii) Both convicted under Section 307/34, Indian Penal Code for individually attempting to commit murder of Chakodi, P.W. 5 and sentenced to five years Rigorous Imprisonment.
(2.) BOTH sentences to run concurrently. The parties involved are residents of village Madhogarh in the State of Madhya Pradesh. Both the courts below have found that parties have formed factions, one represented by the complainant's side and the other by the accused. It is the case of the prosecution that at a site some distance from the village, the appellant, Harish Kumar, in partnership with one Ram Gulam had taken a contract for transportation of sand an bajri. In the vicinity thereof were agricultural lads of Jagdish Prasad, Prosecution witness 7. It is alleged that on the morning of 10-1-1982 when Jagdish Prasad, P.W. 7 went to his fields, he found that a road had been made by cutting the boundary line of his field for using it as a passage for trucks. Incidentally, Ram Gulam and Harish Kumar were also there. Jagdish Prasad, P.W. 7 protested to them for the trespass on his land. At that time, both Harish Kumar and Ram Gulam threatened P.W. 7 that if he ever tried to obstruct their trucks from passing on that road, he would be shot dead. It is alleged that the matter was reported at the police station. It transpires that the Patwari, on orders from higher officers, made demarcation of the site on 17-1-1982. It emerged that the site where the road was made was owned by one Ramsewak, a nephew of Ram Gulam and that Jagdish Prasad's objection to the user of the road was without any basis.
(3.) IN village Madhogarh, there is a busy lane/road running from north to south, touching perpendicularly the highway between the towns of Satna and Rewa. Shortly before reaching the T-junction there stands erected a stone gate from where a lane bifurcates at a tangent, touching also the same highway. The appellants and their co-accused, who constitute a family by themselves, have their residential house in that lane, just about in the middle between the stone gate towards south and the crossing towards the north. The prosecution case is that at about 4.30 p.m. on 17-1-1982, Cakodi, P.W. 5 of the rival faction, was passing in that lane. All the five accused were there. The father of the appellants, Narayan Prasad, acquitted co-accused, caught hold of the hands of Chakodi P.W. 5 and told him that he was indulging in gundagardi (hooliganism) and that he would be set right by them. Harish Kumar, appellant, was then said to be present and armed with a rifle, and Ram Sharan, appellant too, with a .12 bore gun. Others were empty handed. On being exhorted by Narayan Prasad to kill Chakodi, P.W. 5 Harish Kumar fired his rifle at him even when Narayan Prasad was holding the hands of Chakodi. Neither of the two was hurt by the fire as both had sat down instinctively. Freeing his hands from the hands of Narayan Prasad, Chakodi started running away in the lane towards the north, when Ram Sharan fired at him from his .12 bore gun. This time also the fire missed. It is alleged that some pellets of the second fire however hit Manju Soni, Surendra Kumar, Indra, Prosecution witness 3 and Jagdamba Bai, Prosecution witness 4 (the former two were not examined at the trial). This is stated by the prosecution to be the first incident. Before its actual happening Ganesh Prasad, P.W. 1 was informed by one Ganesh Prasad Garg that some quarrel was going on in front of the house of Harish Kumar, appellant. He rushed to the spot along with Narayan Prasad Tiwari, P.W. 11 and both claim to have seen the first occurrence in its entirety from the point when Chakodi's hands were caught by Narayan Prasad, accused till the end.;