BSB IN THE HXGH COuaT OF JODICA'CUSE Al' JABAI.PUS. ,\-^'^b /2000. 0^onS^("r^nas) Gr.Appeal No, AEE^isn-tg. (In Jail) ^. ^^ ./y *•' V-i <f./•• fiespondeat -% s I- Shivltumar soa of Itwarl Sinha, aged 28 years, Labourer. 2- Vishnu son of Itwari Siaha* aged 25 years» Agriculturist. 3- Kanhaiya, son of Itwari Sinha, aged 20 years, Lgbourer. All residents of village Arjuni, .Eolice ststion Dongargaon, district Kajnandgaon, K.P. Versps, State of dbya Eradesh. Crimiaal^Appeal ander seetlon 374 (2^ of the Cr. P^C, i:i-< no; \ JA- '< !~& HI6H COUKT OF JUMC^TURE <4T BIL^SPUR fCMH^TTISSARM) ttiiyiSIOJSI BENCH) Crfmfnai Aooeal No.1338 of 2000 Shivkumar cmc! two others - Versus- State of AAadhya Pradesh (now Chhatt'^ar-h) JU&SMENT FOR CQ 7t£t^'t~ta^ Sd/- DilipRaosaheb Deshmukh Judge HON'BLE MR. JUSTICE L.C. BHAbOO Sd/- L.C.BHADOO judge ST POST ROR JUD©MENTON 16r JULY. 2005 J U ts ©E :30.06.2005 ^ff' HI6H COURT OF JUDICATURE AT 8ILA5PUR. CHHATHS&ARH Criminal Aowal No. 1338 of 1QOQ Shivkumar and twb others - Versus - Sta-te of Madhya Pradesh (now Chhattisgarh) y K-ii-i- Pr-esent: - Mr. Abhay Tiwari, /tdvocate; Mr. 5achin Singh Rajput, Panel Lawysr; For The appellcmts. For the 5tate/re:spondent. MVISION BENCH: - HON'BLE MR. L.C. BHADOO ANO HON'BLE MR. &ILIP R. t>ESHMUKM, JJ. JU&6MENT (Deiivered on lri July, 2005) The fotlowine .iudament ^f the ^oyrtjyas delivere<j by S>ilfp R. Deshmtikh. J\ - 1. The appellants have assailed •their conviction and sen-tenae awarded vide jud9ment dated 28-4-2000 passed in Sessions Trial No.140/98, deiivered by Mr. H.R. Agwan, AddiTionat 5essions Judge, Rajnandgaon, in 2. All the appelldmts have been convicted for offence under Section 302 of -the I.P.C., in The alTernative under Section 302 read with Section 34 of •the I.P.C. for committing the murder of Shyamacharan Soni cind sentenced to undergo imprisonment for tife and pay a fine or Rs.2,000/- each, in default of paymenr of fine To further undergo R.I. for nine months each. The appeliants have also been convicted uncter Section 307 of the I.P.C., in the altemative under 5ection 307 redd witii Section 34 of the I.P.C. for attemptin9 to commit murder |of • Ramesh Chandra Soni cnci sentenced to undergo ft.I. for five years csid pay a fine of Rs.1,000/- each, in defoulT of paymenT o-f fine To further in :F':Etlri:': •i-wrt-t- Page2ofl8 ;:ii;:ii: i undergo R.I. for six months each. The appellonts have been further convicted under Section 324 of the I.P.C., in the altemative under Section 324 read with Section 34 of tiie I.P.C. for voluntariiy causing hurt by means of scissor To Shyamabai and sentenced to under90 R.I. for one year omd pay a fine of Rs.500/- each, in default of payment of fine to further undergo R.I. for one year. Appeltant Shivkumar has dlso been convic-ted under Sections 341. 323 A 323 of the I.P.C. for wron9Tully restraining Manoj Kumar on the road and for causing simpte hurt to ManoJ Kumar & Ramesh Chandra Soni and sentenced *o undergo S.I. for one mon'th, three months and again three months, respectively. 3. It is not disputed that appeliants Shivkumou', Vishnu & Kanhaiya are bro'itiers and sons of acquitted accused Vimlabai. Oeceased Shyamacharan Soni, Ramesh Soni (PW-1) ond l-1aricharan Soni (PW-3) are sons of Shyamabai (PW-2). The appellonts wid the above mentioned witnesses have -Hieir houses ut Villcge; Arjuni, Police Station: t)on90irgaon, tSistr'ict: Rajnand9aon on ei+her side of the road. 4. Brtefly stated, the prosecution cose is that a day before the occurrence i.e. on 29-6-1998 t)r. Manoj Kumar wcs sitting in his ctinic situated in Villa9e; Arjuni, with Ramesh Chcndra Soni (PW-1). In the evening, appelhnt 5hivkumar came to the ciinic white being drunk, threw-ttie chair upside down <md asked ftamesh Chandra Soni to lift the cnair, whereupon Ramesh Chandra Soni lifted the chair. Appeliant Shivkumar again Threw the chair and repeated the order whereupon, ftamesh Soni again lifted the chair. However, when appellant Shivkumar for the third time repeated the dcT, Ramesh 5oni refused to lift the chair, whereupon there was a scuffle. Report of the incident was lodged by RameA Soni on 29-6-1998 at 8.10 p.m- vide Roznamcha Sanha No.698 Ex.P-37(A) in Police Station; Dongargaon. Ramesh Chand Soni was sent for medical exomination. E>r. 6.L. Saraf (PW-8) examined him and found (i) abrasion 0.2 x 0.2 cm. on the base of right thumb: (ii) <n'' ff li-tlt'ffr T Page3ofl8 '6\ ^-^' abrasion 2 xl cm. on the 4 right finger"; and (iii) abrasion 1 xl cm. on the middle side of left 1&9. 5. On the next day i.e. 30-6-1998 in between 6 & 6.30 a.m. when &r. Manoj Badhai was retuming on his Hero Puch bearing registration No. MP-24/EF-6232, eppetlant Shivkumar stopped him on the road near his house and assaulted him by La-thi. Pergiabai (PW-6) who was cleaning utensils in front of her house saw Manoj (poputarly known as Bengafi doctor) being assaulted by Shivkumar and shouted. Hearing her shouts 5hyamacharan, whose house was 'm close vicinity, went to intervene whereupon, 5hiykumar atso asaulted Shamachann by Lal+ii. Shyamabai had on hearing the shouts seen that Shyamacharan was going towards ManoJ © docTor and she asked her son Ramesh Soni (PW-1) to see what wcs hdppenin9 ond went inside the house to wake up her second son i-larichtiran (PW-3). She and Ramesh Soni seeing appellant Shivkumar assaulting Shyamacharan with Lathi went to intervene. Seeing •ttiis, appellants Vishnu A Kanhaiya armed with scissor and iron pip« respectively, came running from their house. Appellant Vishnu stabbed Shyamachanan in the right side of chest by scissor ond inflicted more injuries on the left upper arm and posterior iateral aspect of fore arm. AppellanT Shivkumar assaulted Shyamacharan by La-rfii on The right side of chest. When Ramesh (PW-1) & Shynmabai (PW-3) intervened appeltant Vishnu assaulted Ramesh by scissor and inflicted injuries on left side of his ehest, left lea, ri9ht le9, and left thigh. While he was about to inflict another injury on the neck of Ramesh Soni who had fallen on •the ground Shyamabai covered Ramesh Soni, whereupon an incised wound on the scalp of Shyamabni over riaht parietal reaion wos caused. Appellant Kanhaiya also assaulted 5hyamacharan & Ramesh Soni by an iron rod. <4t this junclure Haricharon Soni PW-3, S/o Shyamabai also arrived at tiie spotoind pushed dppellant Vishnu on the ground. Krishna Kumar Dewangan <S Kunwariya bdi also saw -rfie occurrence. F — " Page4ofl8 p 6. Shyamacharan & Ramesh Soni were shifted to the District Hospital, RajnondgoLon by Haricharan Q3W-3) ond Shyamabai (PW-2). Shyamacharan succumbed to the injuries in the hospital on 1+ie same day. ffierg intimation Ex.P-2 was given by Haricharoin Soni (PW-3) in Police Station; ftajnond9aon on 30-6-1998 at 9 a.m. behati Nalishi Ex.P- 1 was written by B.L. Dhargaon, 5ub Inspector (PW-19). The offence was registered at Potice 5'tation; Oongargaon vide Ex.P-17. 7. Post-mortem was conducted on 30-6-1998 a+ 12.40 D.m. on the dead body of Shyamacharan by Dr. Harish Kumar Joshi (PW-9) who found fotlowin9 injuries on Shyamaicharcin; - i) one penetrating injury over the right side; of chest over 4 irf'Br costal space 3.5 cm. lateral To margin of sternum. fusi-form shope lena'rii-1 cm., width-2 cm. penetratina through skin fascia; musculatui^ pericardium into right upper cavity of heart through its postero lateral wali penetrating fength 8.5 cm. The opening in heart Muller pea size; ii) one peneTrating injury over The left upper arm 4" below 1+ie shoulder joint anterior aspect depth up to bone; 2 cm. long 1 cm. wide; iii) one contusion over the right side of chest ct The leve! of 7t^ rib 2.5 cm. medial to mid nipper line circular 1.5 cm. ciiameter, soft; iv) one abrasion over the onterior aspect of teft knee joint, Multer pea size and shope; v) one iacerated wound over the posterior iaterai aspect of for^arm 1.3 cm. betow The right etbow Joint Muller pea size, ctott'ed blood pre^nt; wid vi) mark of venal section over the right onkle joint medical aspect, bandage on it. On dissec+ion it was found that the penetrating injury wos ih the right chamber of heart which caused the death of Shyamacharan. The injuries sustained were anti-mortem. Pagc5ofl8 "-.ftl s. ftameshchandrs Soni was al^o sent for medicai examination on 30-6- 1998. Dr. Y.K. Tiwcri PW-18 found following injuries on his per-son. i) incised wound at left chest 1 " x l"x ^" ii) incisd wound at !eft ieg mid l/31'd 1" x i" x T" iii) ineised wound at ri9ht leg from l/3r'<i 1" x 1/4" x 1/4" iv) incised wound at ieft thigh posterior aspect 1" x i" i" v) abrasionin hcaid i "x i" wilii btood clot. In •riie opinion of C>r. Tiwoirj PW-18 injury No.l waa grievous in nature while other injuries were simple injuries. Tne injuries were caused by sharp edged weapon within 24 hours. 9. Shyamabaj PW-2 wws atoo exo.mined on 30-6-1998 by br. Y.K. Tiwari who found one incised wound at scalp 2" x 1 i-" at right parietal region which couid be caused by a sharp edged obj'ect within 24 hours. X-ray of left hand of Moinoj Kumar was taksn on ttie same day which did not show <my bony injury. 10. Sub InspecTor B.L. Dhargaon PW-19 after inspecTion of the spot ond •rfie dead body of Shyamacharan which was kept in a jeep at District Hospital, Rajncmdgaon prepared Panchanama Ex.P-28 on 3Q-6-1998. Mnnoj Kumar @ doctor and Haricharan 5oni were sent for medical examination. tSr. Miss K. 6an9ajaiiwaie PW-14 who examinea Manoj Kumar found following injun'es on his person. (i) 5wei!ing <S tenderness over left hcBicf with restriction of movements of 1+iumb; (ii) r'eddish bruise over left knee 8 x3 cm. with swelling; (iii) bruise over third finger of right hand 4 x i cm.; omd (iv) bruise over back on left side 8 x 3 cm. redciish in colour. She also found one abrasion over wrist left hand 2cm x i cm. on Haricharan Soni on 30-6-1998. 11. Investigation progressed. On 30-6-1998 5ub Inspsctor K.P. &anjare PW-15 prepared the spot map vide Ex.P-3 cmd seized blood stained soil cnd plain soii from -ffie ptace of occurrence vide Ex.P-4. Hero Puch No.MP-24/EF-6232 lyin9 at the scene of occurrence near the row •- i'l-l \, Page6ofl8 also seized on 30-6-1998 vide Ex.P-5. From near the house of dcceased Shyamiiicharcn on 30-6-1998 one Scndo Baniyan, one towel A one Kathri ail of which had blood like stains were seized vide Ex.P-6. Appellant Vishnu was interrogated and on his memorondum Ex.P-8 5ub Inspector K.P. Banjare recovered one old rusted iron scissor which was 10 " in length ond had blood like stains from the house of Vishnu on production by appellont Vishnu yide Ex.P-7, On 1-7-1998 at about 11 p.m. one full pant and one shirt were removed from me person of appeilant 5hivkumar and seized vide Ex.P-10. One ironpipe which was 46" long and !•" in diameter wos seized from appellant Kanhaiya vide Ex.P-11 ond one jeans full pant witii blood like stains wom by him was also seized vide Ex.P-12. On the memorandum of Shivkumar Ex.P-16 one La+hi having blood like stains 47" in lenqth was seized from cypeliant Shivkumar vide Ex.P-13. One jeons full pant and one baniyan havlng blood like stains worn by appelltOTt Vishnu were removed and seized on l-7-1598 vide Ex.P-14. 12. The appeilants were arrested on 2-7-1998 vide Exs.P-33, 34 <& 35. The seized articleg were sent for chemical examination to •Hie Forensic Science Laboratory, Raipur, which found vide report Ex.P-36 that biood like stains were present on •rfie recovered and seized articles. yiz., scissor at th®instonce of appellant Vishnu, Lathi recovered at -ttie instance of oppellant 5hivkumar and iron pipe seized from appeltont Kmhciiyo. Blood like stains were also found on the Boniyan seizecl from appeilont Vishnu. No blood stains were found on the ciothes seized from appeltants Shivkumar & Konhaiya. 13. After eompletion of invcstigation, the appellcnts along with Vimlabai were prosecuted for offence under Sections 302 & 307 read wi'Hi Section 34 of The I.P.C. Upon committat of case by 1+ie Judicjat Magistrate, 1 Class, Rajnandgaon, on 28-9-1998, learned Additional Sessions Judge, Rajnandgoon framed charges under 5ection 302; in the altemcrl'ive under Section 302 read with Section 34, Section 307, in 4-+i \, Page7ofl8 Ftt1 the altemative under 5ection 307 read with Section 34, Section 324, in the alternative under Section 324 read with Section 34 I.P.C. agoiinst ail the accused persons, charges under Sections 341, 323, in the alternative under 5ection 323 read with 5ection 34 I.P.C. against appellants Shivkumar & Kanhaiya, ancl charge under Section 323 I.P.C. against appellant 5hivkumar for voluntarily causing hurt to Ramesh 5oni on 29-6-1998. The oppellonts abjured their 9uilt. Prosecution examined as many as 19 witnesses in support of its case. No eyidence in defence was adduced. The Trial Court retying upon the prosecution svidence convicted the appellants os shown in paraaraph 2 supra while acquitting accused Vimlabai, motherof the .appellcnts from all charges. 14. Lsarned counset for the appeltants has assailed The impugned Judgment on the around that non-examination of materul evewitnesses as well as injured &r. Manoj, makes the prosecution evidence doubtful. The testimony of Ramesh 5oni PW-1, Shyamabai PW-2 & Haricharan Soni PW-3 ou9ht not to howe been relied upon by the trial Court as it was not of sterling quality and also not supported by medical evidence. IT was further argued that no common intention of appelloaits Shivkumar & Kanhaiya for committing ihe murder of Shyamacharan or attempting the murder of Ramesh 5oni as also for causing injuries by a shoTp cutting object on Shyamabai was made out from the prosecution evidence. He also argued that the appellants were sent for- medica! examination as late as on 2-7-1998. The oppellants had sustained injuries durin9 the occurrence, which in the opinion of &r. ftamteke (PW-11) could have disappeared wiltiin 24-48 hours. For these injuries no explonation was given by the prosecution, which rendered the prosecution case doubthil. 15. On the other hand, learned Pane! Lawyer for The State argued that despite best efforts by -Hie prosecution Manoj Kumar alias doctor couid not be produced for testifying before the trial Courf ond there'fjore, no adverse inference could be drawn against ths prosecution. 1-lealso. Page8ofl8 contended that the injuries sustained by deceased Shyamacharcin as well as Ramesh Kumar A Shyamabai bring home the guilt under Sections 302, 307 & 324 of the I.P.C. against appeilant Vishnu beyond ail reasonable doubt and the testimony of these injured witnesses was wholly reliable which proved that appellants Shivkumar & Kanhaiya had also participated in furtherance of common intention of the appellants, and therefore, the conviction and sentences imposed upon them by the triai Court wcs based on legal eyidence and ought to be sustained. He supported the Judgment of The trial Court and prayed that tiie appeal deserves dismissct. 16. We have considered •the rival cirguments and we have also peruseci the record of -tfie trtal Court minutely. We shall firs* Take up ifte incident, which took place on 29-6-1998 in the clinic of Dr". Manoj Kumar. Rameshchandro Soni PW-1 has stated that while they were sift-ing in the clinic of &r. Manoj at about 7 p.m. on 29-6-1998 appeltant Shivkumar came in drunken state inside the ciinic, pushed the choir down and asked him To lift it back, when he did so, he again pyshed the chair down ond again askeci him to lift it. l-1e again lifted the chair. While on the third occdsion the appellemt again pushed the chair down he refused to lift it whereupon, there was exchange of hot wordsl during which appellant Shivkumar caught hold of his -Hiroat and l+iere was a scuffle between them. Roznamcha Sanha No.698 lodged by Ramesh Soni on 29-6-1998 Ex.P-37 (A) has been proved by Head Constable Bhaiyalai Patel PW-16- The injury repofT of Ramesh Soni dated 29-6-1998 Ex.P-21 has been proved by Or. ©.L.Saraf (PW-8), which shows that he had three very superficial abrosions on the r'ight thumb, on the right middle finger cnd on the middle of left leg. Thus, •riie testimony of Rnmesh 5oni (PW-1) regarding tiie injuries caused by appellant Shivkumar on 29-6-1998 in the clinic of AAano.j is un-rebutt-ed and supported by medical evidence. It Thus appears •ftwt appellant Shivkumar wanted to square the score and assaulted Rameslt Soni on 30-6-1998 also lends support to tiie inference that it wa5 in retaliation 1 Page9ofl8 to the incident on 29-6-1998 in which Ramesh 5oni had disobeyed his command which was foltowed by a scuffle. It is thus, fully established that on 29-6-1998 appellant Shivkumar had voiuntariiy caused huri- to Ramesh 5oni, and Thereby committed on offence under 5ection 323 I.P.C. 17. Dr. ManQj Kumar was not examined by the prosecution since he could not be served despite best efforts. He wcis repeatedly summoned by the Court, whereupon it was reported that he had left Villaoe; Arjuni for some unknown place. He was even summoned on the Kolkata address ond one Head Constable was also sent for effecting speciat service, but AAanoj Kumar coutd not be traced ond exomined by tfie prosecution. The injury reporr of ManoJ Kumar was however proved by &r. Miss K. Sangajaliwale PW-14 who hod found vide report Ex.P-30 that Mano i Kumar hod sustained bruises over left knee, third finger of r-ight hond and on the back of left side apart from swelling and tendemess over the left hand. Rameshchandra Soni PW-1, Shyamabai PW-2 and Haricharcin Soni PW-3 have also noT even said a word in Their testimoriy as to how and why was &r. Manoj injured and what wos he doing at the time of occurrence. Pergiabai PW-6 has deposed that at about 6 a.m. on 30 June, 1998, while she was cleaning utensils in front of her house she saw that appellant Shivkumar was beating t>r. Manoj. 1-lowever, she said ttiat she connot say as to by which weapon appellant 5hivkumar WGS beating Monoj. This witness was cross-examined by the Additional Public Prosecutor with +he permission of -rhe Court and said thereih that she had told that appelkmt Shivkumar had assautted &r. ManoJ by a Lathi. The testimony of this witness was recorded on 21-4-1999 whereas, the testimony of Ramesh 5oni had already been recorded on 20-4-1999. In cross-exaniination, she hcis admitted that she had come to testify with Ramesh on the Axy. We find that the tes+imony of Pergiabai fails fo inspire confidence because, if she had seen the firsf part of occurrence wfth &r. Monoj & appellant Shivkumar, she woultl 'nave known about -the later part also. She wouid have certainly known Pagel0ofl8 the weapon with which appellant Shivkumar hcd assauited Dr. Manoj. The spot map Ex.P-3 prepared by Sub Inspector K.P. Banjare O'W-15) does not show that the house of this wi'hiess is situated any where near the place of occurrence. 18. Sub Inspector K.P. Banjare had seiwd vide Ex.P-5 Hero Puch No.MP- 24/EF-6232 from the place of occurrence on 30-6-1998 at about 10 a.m. It is beyond doubt that Dr. Monoj definitely had a falt from Hero Puch ond had neither received a laceration nor abrasion on his body, but had only received bruises. Or. Miss K. (Sangajaliwale PW-14 ho^ in her cross-examination para 6 admitted that al! the injuries sustained by AAanoj couid be caused due to fall from a moped. If appeilant 5hivkumar had really assautted Dr. Manoj repeatediy by La1+ii as was norroited in the F.I.R. Ex.P-18 "3I73T ^? ^T. iTST^ ^iT •^TR zp? qWCT W 3TT ';??T STT ^ R|c|^|sj ;T •^)' •^ i^Tqr g]!^ ^]- ?n^T '^ iKslc ^? '??T STT' 1+ien &r. ManoJ would hcve cert-ainly r'eceived abrasions, lacerations as well as con+usions and not merely bruises. It is in this perspective that non-examination of Dr. Manoj by the prosecution becomes fcrtul for the pro^cution so far as offence under Sections 341 & 323 of the I.P.C. in relation to AAonoj Kumar Badhai are concerned. In the testimony of Rameshchondra Soni PW-1, Shyamabai PW-2 ond 1-larichareOT Soni PW-3 complete silence about the preisence of t)r. Manoj at the scene of occurrence during the entire incident creates an element of doubt. 19. Thua, we find +ha+ charge uncler Sec+ions 341 4 323 of the I.P.C. in relation to wrongful restraint of Dr. Manoj and for voluntarily cousing hurt to him by appellant Shivkumar is not estcblished. So far as charge under Section 323 read with Section 34 of the I.P.C. a9ainst r'enuiinin9 appelkants is concerned. there is ne ccse of pr-osecution tiiat al! fhe remaining accused/appellcxnts had formed a common intention to assoult t5r. AAanoj. Appeltants Kanhaiya & Vishnu were not at the scene of occurrence at that time. Even Pergiabai PW-6 does not say any'Thing rt a PagelloflS about it. Dehati Nalishi Ex.P-1 does not say a word about it. We therefore, conclude that the prosecution has failed to establish charge under Sections 341 & 323 of the I.P.C. against appelldnt Shivkumar and charge under Section 323 read with Section 34 of tiie I.P.C. against appetlants Kanhaiya & Vishnu regarding causing hurt to br. Manoj in furtherance of common intention of the co-accused. 20. Haricharan Soni (PW-3) is brother of The deceased ond son of Shyamabai (PW-2) ond bro+her of ftamesh Soni (PW-1). As per- the Dehati Nalishi lodged by him he had reached the spot when deceased Shyamachaimn and Ramesh 5oni (PW-1) are allegecf to have 9one to intervene between the mar pit taking place by appeilant Shivkumar with &r. ManoJ. In The Dehati Nalishi Ex.P'l it was sTated 1+iat when Shyamacharcn went to intervene, Shivkumoir started beatina him. Seeing this, his mother Shyamabai (PW-2) and brother Ramesh Soni went there whereupon, appellants Vishnu & Konhaiya also came running from their house. Ramesh 5oni (PW-1) has in his testimony stated •that when his elder brother Shyamacharan went to jntervene appellcmT Shivkumar had dealt a Lathi blow on the waist of Shyamacharon, whereupon Shyamacharan had fallen down. It is at this juncture that cyfpetloints Vishnu & Kanhaiya ond 1+ie witnesses namely, Ramesh (PW-1) & Shyamabai (PW-2) come to the place of occurrence. The testimony of Ramesh Soni is corroborated by Shyamdbai Q'W-Z) also. The post- mortem report of Shyamacharan Ex.P-24 also mentions •f+iat there wss ^ one conTusion on the right side of diest at the ievei of 71^ rib, sne sbmswn over 1+ie interior aspect of leff knee andone lacerated wound over the postepior lateral aspect of fore arm with clotted blpod present. Thess were the injuries which the deceased must have sustninsd due to the assault by Shivkumur by Lort+ii. 21. Ramesh (PW-1) has in paraaraph 5 stated that soon after Shyamacharan was assaulted by 5hivkumar by Lathi and had fallen down • appellants Vishnu & Kanhaiya came to -the spot and thereafter, alt •rtie \\, Paeel2ofl8 three appelkints i.e. Vishnu, Kanhaiya & Shivkumar dragged Shyamacharan towards -ttie house of Raju Soni. If we lookot the spot map prepared by Sub Inspector K.P. Banjare O'W-15) we find that it is a distonce of at least about 150 yards. It was also stated ttiat appellflmt Shivkumar was instigating his mother Vimlabai to brinG sword to kill Shyamacharan. Shyamabai (PW-2) hos also corroborated the testimony of Romesh Soni (PW-1). Howeyer, the above testimony appeaps to be mere exaggeration since in tiie Dehati Nalishi Ex.P-1 iodged by Haricharan 5oni it was noT stated that Shyamacharan was dragged by the three appeltonts for about 150 yoirds towards the house of Raju Soni. Medical evidence also does not corroborate this. It is also not mentioned in the Dehati Nalishi -that appetlant Shivkumar had instigated his mother or the other appellonts to bring sword to kill 5hyamacharan. 22.However, it is borne out from the fully corroborated testimony of Rameshchand (PW-1), Shyamabai (PW-2) <& l-1aricharan Soni (PW-3) that The tiiree cypeilants had assembied together at the place of occurrence, appellont Vishnu was holding a scissor and appellont Kanhioya was holding an iron rod Qiipe). The presence of appeiiants Vishnu, Kanhaiya & Shivkumar near the house of Raju where Shyamacharan was assaulted after being singly assaulted by oppellant Shivkumar by L.atiii, clearly shows that appeltoits Vishnu, Kanhaiya &. Shivkumar