BAJRANG Vs. STATE OF M.P.

JUDGEMENT

(1.) THE appellant has filed the present appeal against the order of conviction under section 304 -1, Indian Penal Code and sentence to undergo eight years rigorous imprisonment. Prosecution case briefly stated is that on 23 -11 -1988 the accused and several other persons were indulged in gambling. Deceased Raju came there in an intoxicated condition and asked for a sum of Rs. 5/ - from one Dharmendra. On that Dharmendra gave only Rs. 2/ -. When Raju wanted to play, accused resisted him. Deceased Raju hurled abuses to the accused. On that accused took -out the knife from his pocket and inflicted one blow with it on the abdomen of the deceased. Post -mortem report Ex.P -8 shows that there was one incised wound 3/4" just below the sternum and lower rib at the junction of abdomen. Clotted blood was also present. Wound was communicating with the internal cavity. No other external injury was present on the body of the deceased. The cause of death was opined to be haemorrhage due to the stab wound.

(2.) THE FIR was lodged promptly by the brother of the deceased on 23 -11 -1988 itself. Name of the accused was mentioned on the basis of the information received by complainant Gangaram. Deceased died before he could be medically attended. The appellant was charged for an offence under section 302 of the Indian Penal Code. Accused was arrested and from his possession knife was recovered. Pursuant to the information memo Ex.P -3 seizure of the knife was made vide seizure memo Ex.P -4. Clothes of the accused were also seized vide seizure memo Ex.P -5. Blood -stained earth and controlled earth was recovered vide seizure memo Ex.P -6. Spot map Ex.P -13 was also prepared. Knife, clothes of the deceased, clothes of the accused, blood stained and plain soil were sent for the chemical examination to the State Forensic Science Laboratory. Accused abjured the guilt and submitted that he has been falsely implicated in the case. He further submitted that Raju himself was carrying knife and there was scuffle between them, and due to that scuffle the knife injury was suffered by deceased Raju.

(3.) LEARNED counsel appearing for the appellant has vehemently submitted that there are material contradictions and omissions and most of the witnesses had not support the prosecution case. He has particularly relied upon the observations of the trial Court made in para 18 of the judgment and submitted that the accused ought to have been acquitted. Beyond periphery of doubt, prosecution has not been able to establish the guilt. His alternative submission is that it is a case where the appellant can at the most be convicted under section 326 of the Indian Penal Code and his sentence may be suitably reduced to the period which has already passed after the incident. Learned counsel appearing for the State submitted that it is a case where the accused and deceased were gambling along with other persons. Altercation took place all of a sudden. There is evidence of Suresh Kumar (P.W. 8) who is an independent witness. He has deposed that there was exchange of abusive words between the accused and the deceased and subsequently accused took -out the knife and inflicted injury in the abdominal region of the deceased due to which Raju fell down and then all the persons ran away from the spot. Other witnesses being the brothers of the accused and close associates who themselves were involved in gambling, have obviously tried to suppress the truth. Though they have been declared hostile yet have corroborated the case of the prosecution. Learned government advocate has further submitted that the conviction and sentence passed against the appellant does not call for any interference in the appeal.