SIYARAM GOND Vs. STATE OF M P

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction and order of sentence dated 30-9-1997 passed by 1st Additional Sessions Judge, Rajnandgaon, in Sessions Trial No. 63 of 1997, whereby the appellant has been convicted under Section 304 Part II of the IPC and sentenced to undergo RI for three years and to pay fine of Rs. 500/-, in default of payment of fine to further undergo SI for three months. As per case of prosecution, on 6-3-1997 deceased Gajanan was quarreling with Mansharam, father of the appellant. On this, accused Siyaram took Gajanan forcibly from the house to Ashram where Bhagwatpravachan was preaching and on the way the appellant/accused assaulted Gajanan, who fell on the ground. Thereafter, the appellant kicked on the abdomen and just upper private part (kotha) of the body of the deceased by legs. At the time of incident, Devkunwar, wife of the appellant also came there and assaulted Gajanan by fists. When Vijay Kumar, son of the deceased saw that his father was being assaulted by the accused, he rushed to the spot and intervened in the matter. At that time, Dev Prasad (PW/3) and Radhelal (PW/4) also reached there and intervened in the matter. Thereafter, Vijay Kumar, son of the deceased took away his father Gajanan to his house and gave some homely treatment to his father. Bhagirathi, Kotwar (PW/2) also came to see Gajanan. At that time, Gajanan was talking to Kotwar and there was some swelling just on the upper private part (Kotha) of the body of the deceased. After some time Gajanan died. Thereafter, Bhagirathi, Kotwar (PW/2) along with Vijay Kumar (PW/1) went to Police Station and lodged a report (Ex. P/1) and merg intimation (Ex. P/2).

(2.) Investigating Officer reached the spot and after summoning the witnesses vide Ex. P/5, inquest over the dead body was prepared vide Ex. P/6, spot map was prepared vide Ex. P/4 and dead body was sent for autopsy to Primary Health Centre, Mohla vide Ex P/8-A where Dr. S.R. Mandavi (PW/7) conducted autopsy on the body of the deceased vide Ex. P/8-A and found 1) an abrasion over left elbow joint of 1 cm x 1 cm, black in colour, 2) an abrasion over right shoulder joint of 1/2" x 1 cm and 3) an abrasion over left side of back of 1 x 1 cm in black in colour and 4) contusion present over left side of abdomen. He opined that cause of death was due to infection of peritonitis

(3.) Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate, First Class, Chauki, who in turn committed the case to the Court of Sessions Judge, Rajnandgaon. Learned Additional Sessions Judge received the case on transfer for trial, who framed charge 302 read with Section 34 of the IPC against the appellant.