CHHOTYA Vs. STATE OF M P

JUDGEMENT

(1.) This appeal has been preferred by the appellant being aggrieved by the judgment dated 23.5.1996 passed by the Court of Shri B.P.Maheshwari, Ist A.S.J. Badwani in S.T. No. 146/89 by which the appellant has been convicted under S. 307 of the I.P.C. with R.I. for 3 years and fine of Rs.200/-.

(2.) According to prosecution case in the field of Jadiya a temporary hut (Tapra) of appellant Chhotya was constructed since last 8-10 years. The family of Chhotya was living there. Due to which his crops were being damaged. Therefore, complainant was asking him for the last four years to remove this Tapra and accused used to reply that he will shift his Tapra. About 12-15 days before the date of incident on 14.3.89 Chhotya with the help of villagers shifted his Tapra. His brother Hemda also went to help him. In the night of 14.3.89 at about 10 p.m. when the complainant Jadiya was returning to home accused persons met him. At that time Chhotya was having bow and arrow, Gathiya was having axe and Lemdiya was having lathi (dang). It was allegation of appellant Chhotya that he had hidden Rs.200/- near the pole of the Tapra which was taken by Hemda while shifting the Tapra. Hence he should return it. Complainant replied that no money was found there. Then Chhotya insisted to return the money and threatened to kill him then complainant again said that he did not find any money there. Thereafter Chhotya inflicted arrow on him which caused injury on the left side of stomach and Gathiya assaulted by axe which caused injury to Jadiya on his left hand. Jadiya fell down. Thereafter Chhotya, Gathiya and Lemdiya again assaulted him. This incident was witnessed by Nandliya, Nayka, Bhatiya and Waklibai wife of Jadiya. Jadiya told them about the incident. Next day on 15.3.89 the report was lodgedat 9.30 a.m. and Crime No.120/89 under S. 307/34 of I.P.C. was registered at Police Station, Badwani. After investigation challan was filed and after trial only appellant has been convicted after trial as mentioned above; hence this appeal.

(3.) It has been argued by the appellant's counsel that he has been falsely implicated in this case. The accused Jadiya, Temriya and Nandliya came to the house of the appellant and broken his house and tried to put fire to it and falsely implicated him. The defence evidence produced by the appellant was not considered by the trial court. In the evidence, medical certificate Ex.P.2 of some other person named Chaminiya was produced before the trial court but not of Jadiya. The complainant Jadiya was not identified by the doctor at the time of evidence to prove the fact that he has examined the complainant. In this way MLC report Ex.P.2 was doubtful and on the basis of which it was not proved that the complainant Jadiya sustained injuries. The injuries were not dangerous to life. The motive was not proved. The appellant has been convicted on the basis of statement of sole evidence of complainant. The other witnesses were not the eye witnesses. There were serious contradictions and omissions in the evidence of the prosecution witnesses which has not been appreciated in proper perspective; hence appeal should be allowed.