1. This appeal is filed by sole appellant Anil Kumar S/o Unnaj Kewat being aggrieved of the judgment dated 22/08/2000 passed by the learned IInd Additional Sessions Judge, Jabalpur in Sessions Case No. 718/99 whereby the learned Additional Sessions Judge has convicted the appellant under Section 302 read with Section 201 of I.P.C. and has directed him to undergo life imprisonment with fine of Rs. 2000/- with default stipulation of one year R.I. Similarly, under Section 201 of I.P.C., he has been directed to undergo three years R.I. with fine of Rs. 500/- with default stipulation of three months R.I. Both the sentences to run concurrently.

2. It is submitted that the appellant is innocent. As per the prosecution story, PW-2 mother of deceased Raju namely Smt. Shanti Bai had seen the deceased moving in the company of Bihari but other co-accused persons Bihari and Tullu @ Tularam have been given clean chit and present appellant has been convicted.

3. It is submitted that the appellant has been falsely implicated. There was no intention to cause murder. Reading from the evidence of PW-14 Dr. Arun Jain, it is pointed out that in para 3 of his Examination-in-Chief, this Doctor had found that on opening of the stomach, there was sand and mud particles present in the stomach, liver and spleen light green colour.

4. Thus, reading this statement, it is submitted that it is not a case of strangulation but that of accidental death and, therefore, appellant is entitled to benefit of doubt.

5. Reliance is placed on the judgment of this court in Cr.A. No. 2431/2000 Bachaiya @ Ramesh and others Vs. State of Madhya Pradesh wherein despite there being nine injuries, his conviction was converted under Section 302 of I.P.C. to 304 part-II of I.P.C.

6. Shri Pradeep Gupta, learned Government Advocate supports the impugned judgment and submits that there is an eye-witness account of PW- 5 Bihari S/o Brijlal Yadav duly corroborated with the evidence of PW-7 Sumer Singh.

7. Thus, it is submitted that when there is evidence of PW-5 Bihari and PW-7 Sumer Singh of last seen, then conviction does not call for any interference.

8. After hearing learned counsel for the parties and going through the record. In the postmortem report PW-14 Dr. Arun Jain noted following injuries :-

"1. Abrasion 8" x 2" on the left forearm.

2. Contusion on the forehead above the eyebrow measuring 2" x 1".

3. Lacerated wound on the lower lip 1/2 x 1/2 x 1/4 inch.

4. Contusion on the right side of the neck measuring 1.5" x 1. 1".

5. Contusion on the left side of the neck 2" x 1.5".

6. Bruise on the left side 2" x 1.5".

7. Abrasion on the right side of the shoulder 3" x 1/2"

8. Abrasion on the outer side right thigh.

9. Blood was deposited in the mouth and nose.

10. Bruise injury in trachea part of the neck measuring 1 x

11. Bruise on the left side of the parietal region measuring 1 x 1/2".

12. After dissection of skin of the neck, a bruise with the redness was found on the upper part of the neck measuring 2" x 1".

13. Both the lungs were adjusted.

14. Blood was deposited in the chambers of the heart."

9. He gave an opinion that death had occurred within thirty hours of postmortem. The death was due to strangulation and it was homicidal in nature. The postmortem report Ex. P-15 contains his signature from A to A part.

10. A perusal of injury nos. 4, 5, 8 and 9 corroborates the evidence of PW- 14 that death was homicidal due to strangulation. As far as PW-2, mother of the victim is concerned, we have noted that there are improvisations in her case diary statement Ex. D-1 vis-a-vis her court statement as PW-2. In her case diary statement, she has not taken name of Bihari as the person with whom Raju had left her home. In case diary statement Ex. D-1, it is mentioned that on 13/09/1999, her son Raju had taken his meals at about 12 noon. Prior to having his lunch, he had gone to Tehsil Panagar. He had brought Kerosene oil and kept it at home. He had left his home. She thought that Raju may have gone with a vehicle and he will come back but when he did not return for the whole night of 13/09/1999, then she inquired from her son Munna about Raju. When Munna stated that he does not know about Raju, and said that when Raju had left home, then Bihari Tiwari who works in a hotel and also works as a Conductor was seen, then on 14/09/1999, Shanti Bai had inquired from Bihari Tiwari as to where is Raju but Bihari Tiwari said that he does not know.

11. PW-3 Munna Punjabi stated that on the date of the incident, he had seen Raju with accused Bihari at Panagar Sabji Mandi. There is material contradiction in his statements before the court vis-a-vis the statement given by PW-2 before the Investigating Officer that Munna Punjabi had informed her that when Raju left their home, he was in the company of Bihari Tiwari whereas PW-3 in contradiction to the statements of PW-2 Shanti Bai stated before the court that he had seen Raju in the company of accused Bihari at Sabji Mandi of Panagar.

12. Thus, it is evident from the evidence of PW-2 Shanti Bai and PW-3 Munna Punjabi when read in conjunction with the case diary statements of PW-2 as contained in Ex. D-1 that Raju was not seen leaving his home in the company of Bihari. Thus, first submission made by Shri Vishnu Upadhyay, learned counsel for the appellant that main accused is Bihari and Raju was last seen in the company of Bihari and not in the company of Anil Kumar is not made out.

13. PW-5 Bihari S/o Brijlal Yadav has clearly stated that in the evening, he had gone to the shop of Ashish to have betel leaf. Near the shop, he had seen accused Anil and deceased Raju. He had consumed Pan and left for his home but on a way, station is situated where he heard certain noises. He had seen accused Anil beating Raju on the platform. Anil while beating Raju had taken him outside the station where a mercury lamp was lighted. Thereafter, it was dark. Thereafter, where Anil had taken Raju is not known to him as he had come back to his home.

14. In the cross-examination, this witness has given time of reaching Pan shop i.e. about 7 P.M. He has stated that apart from him, Hari Patel and Ashok Patel were present at the shop of Panwala. He had seen Anil and deceased Raju together. He has further stated that he had seen Anil beating Raju and taking him upto the last end of the platform. PW-6 Ashish Kewat is the owner of pan shop. He clearly stated that though he does not know the accused persons present in the court but six, seven months prior on thirteenth day at his pan shop near Devri station, two boys had come asking for change of Rs. 100/-. Those boys had purchased two Bristol Cigarettes and had given him a Rs. 100/- rupee note on which he said that he was not having change and asked them to bring change. These boys had gone to shop of Shalu @ Rajkumar who is running a hotel but even there, they could not get the change when they returned back.

15. PW-4 Rajkumar has clearly stated that he has a tea stall in front of Mohanlal Hargovindas Factory. At about 6 P.M., two boys had come to him asking for change of Rs. 100/-. One of the boy was Bihari and another boy was of the same height who is not known to him.

16. PW-4 Rajkumar has given statements contrary to his case diary statement Ex. P-3 in which he clearly stated that he had seen Anil Kewat in the company of the deceased. This witness was declared hostile. Thus, testimony of this witness is not of material use on the point of identity.

17. PW-7 Sumer Singh has also identified Anil at about 7 P.M. stating that he has a cycle shop. He was standing close to his Tapra and Anil had come to him with another boy and asked for liquor. In para 2, this witness has stated that Anil was accompanied with Raju. Thus, when evidence of PW-7 is examined in the light of the statements of PW-5 and PW-6, then statements of PW-5 of last seen Raju in the company of present appellant Anil are corroborated by these two witnesses PW-6 and PW-7. PW-5 has further stated that he is the witness of actual incident taking place where Anil was beating Raju.

18. Thus, when these facts are taken into consideration, then report of PW-14 Dr. Arun Jain that the cause of death appears to be strangulation and death was homicidal is corroborated with the evidence of last seen and, therefore, the conviction of the appellant on the basis of the evidence of last seen cannot be faulted with.

19. The impugned judgment of conviction does not call for any interference and is hereby upheld.

20. Case property be disposed of in terms of the judgment of the trial court.

21. The appellant be taken in custody.

22. Shri Upadhyay informs that appellant is at Jabalpur Jail in some other case. He be symbolically taken into custody in the present case and be directed to undergo remaining sentence.

23. Accordingly, the appeal fails and is dismissed.