M.R. Shah JUDGMENT
M.R. Shah, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 19.04.2018 passed by the High Court of Madhya Pradesh at Gwalior in Criminal Appeal No. 574 of 2006 by which the High Court has confirmed the conviction of the Appellants herein-original Accused Nos. 2 to 5 for the offences punishable Under Section 302 r/w Section 149 of the Indian Penal Code, the original Accused Nos. 2 to 5 have preferred the present appeal.
3. All the Accused including the Appellants came to be tried by the Learned Trial Court for the offences Under Section 302 r/w Section 149 of the Indian Penal Code for having killed one Bal Kishan s/o the informant Mullo Bai on 01.12.2005 around 4-5 a.m. in the morning at Village Hinotiya Gird.
4. According to the case of the prosecution, the informant Mullo Bai - PW8 was sleeping in the cattle shed. At that time, the Appellants and one another Accused named Bal Kishan, s/o Diman Singh while sharing common object caused murder of Bal Kishan, s/o Bhagwan Singh. According to the informant there was a dispute going on between the parties. As per the case of the prosecution and according to the informant, when she was sleeping in the cattle shed in the house, around 4-5 a.m. in the morning due to the barking of the dogs she woke up and in the light of torch, she saw that in the cattle shed, Accused Bal Kishan with an axe and other original Accused Nos. 2 to 5 herein with sticks/lathis in their hands were standing. Thereafter, Accused Bal Kishan entered in the cattle shed and with an intention to kill her son Bal Kishan gave a blow of axe. She shouted and the other members of the family and nearby house came there and all the Accused ran away from the spot. Investigation was carried out by one Mahesh Sharma - Investigating Officer-PW12. He recorded the statements of concerned witnesses. I.O. also obtained the relevant evidences including the medical evidence and also the post mortem report. That all the Accused were charge-sheeted for the offences punishable Under Section 302 r/w Section 149 and Section 450 of the Indian Penal Code. The case was committed to the Court of Sessions. All the Accused pleaded not guilty, therefore, all the Accused came to be tried by the Learned Trial Court for the aforesaid offences.
5. To prove the case against the Accused, the prosecution examined in all 12 witnesses including PW8 Mullo Bai-informant - mother of the deceased who was the sole eyewitness. At this stage, it is required to be noted that mother of the deceased Mullo Bai was the sole eyewitness. At this stage, it is required to be noted that the axe used in the commission of the offence by the original Accused No. 1 was recovered at the instance of the Accused No. 1 himself. Ratan Singh - PW1 and Pahalwan Singh - PW2 did not support the prosecution and therefore, they were declared as hostile by the prosecution. In support of the defence two witnesses were examined by the defence to bring hom........