ASHOK KUMAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and order dated 22.2.1996 passed by Additional Sessions Judge, Durg in Sessions trial No. 311/1995 holding the accused/appellant guilty under Section 304 Part -I IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 500, in default of payment of fine to further undergo rigorous imprisonment for six months. Case of the prosecution in short is that on 1.5.1995 at about 11.30 a.m. there was some dispute between the accused/appellant and the deceased namely Pitamber Yadav in which the accused/appellant is said to have assaulted the deceased with a wooden piece causing as many as nine injuries. Thereafter, he was admitted in Government Hospital, Durg on the same day for treatment where he died on 5.5.1995. Merg intimation Ex. P -11 was given by constable namely Johan Panna which was reduced to writing by Shivram Ahirwar (PW -7). Based on the said merg intimation, FIR Ex. P - 13 was registered for the offence under Section 302 IPC and after investigation challan was filed by the police on 19.7.1995 for the said offence.

(2.) SO as to hold the accused/appellant guilty, prosecution has examined 09 witnesses. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case.

(3.) COUNSEL for the appellant submits that present is a case where first of all the deceased assaulted the accused/appellant with sword causing injury on his palm and shoulder. According to him, there is no eyewitness to the incident and this apart none of the witnesses has stated that it was the accused/appellant who assaulted the deceased. He submits that the star witness of the prosecution namely Kejiya Bai (PW -8) has not supported the case of the prosecution and has been declared hostile. He submits that even if the first plea of the accused with respect to false implication is not accepted, his alternative argument is that it is the deceased who first assaulted the accused/appellant for which a report was also lodged by him and that this fact has been admitted by the Investigating Officer (PW -9). He further submits that the accused/appellant was assaulted by the deceased with sword and the accused/appellant might have used the wooden plank in causing injuries just to save him. He submits that when the deceased was hospitalised, only simple injuries were noticed on his body which has been admitted by the Investigating Officer (PW -9) categorically stating that as the deceased had suffered simple injuries, he did not inquire into the matter. He submits that diary statement of Ram Krishna (PW -2) and Kejia Bai (PW -8) have been recorded on 9.5.1995 and this inordinate delay in doing so has not been explained by the prosecution as required under the law. He further submits that even the injuries sustained by the accused/appellant have not been explained by the prosecution.