REKHCHAND Vs. STATE OF M.P.

JUDGEMENT

(1.) Facts of the case in brief are that in the intervening night of 11 th -12th of May, 1991 when injured Bholaram (PW-2) was sleeping outside his house, accused/appellant herein along with 7-8 other persons visited his house, threatened him of life and thereafter took him inside the minibus which was stationary in the thrashing field. It is also alleged that the accused/appellant also caused knife injuries on his legs and left him near village Jamgaon in unconscious state. Thereafter, the injured (PW-2) somehow came to Bheshnarayan Chandrakar (PW-1) - the lodger of the FIR (Ex. P-1) and informed him about being assaulted by 3-4 persons with knife. Thereafter, he was taken to DK Hospital Raipur and during treatment his dying declaration was also recorded. On the basis of report (Ex. P-1) offences under Sections 364 and 307 IPC were registered against as many as 9 persons including the accused/appellant herein. After completion of investigation charge-sheet was filed against them under Sections 364 , 307 , 395 / 397 / 149 IPC. The Court below however framed the charge under Sections 364 / 307 / 395 / 397 / 149 IPC.

(2.) Learned Court below after considering the evidence of the witnesses acquitted 7 accused persons of the charges levelled against them but convicted the accused/appellant herein under Sections 364 , 395 / 397 , 307 / 149 IPC and sentenced him to undergo RI for 5 years with fine of Rs. 1000; RI for 7 years; and RI for 7 years with fine of Rs. 2000 respectively, with default stipulations. One of the accused namely Mohammad Sarik absconded and therefore, could not be tried along with the other accused persons. It is relevant to note here that accused Phoolchand died during trial.

(3.) Counsel for the accused/appellant submits that the evidence available on record is not sufficient for convicting the accused/appellant under Sections 364 , 395 , 397 , 307 and 149 IPC as the requirement thereof is not satisfied from the evidence adduced by the prosecution. She submits that though 3 independent witnesses were cited by the prosecution yet during trial they could not be examined for the reasons best known to it and this non-examination of the important witnesses renders the case of the prosecution doubtful. Another independent witness namely Khemchand Chauhan (PW-3) though examined by the prosecution yet he has not supported the case of the prosecution. Thus the judgment impugned being contrary to the material on record collected by the prosecution is liable to be set aside and the accused/appellant deserves acquittal particularly when on the same set of evidence the other accused persons have already been acquitted.