PATHANIA Vs. STATE OF M.P.

JUDGEMENT

(1.) The appellant has filed the present appeal being aggrieved by judgment dtd. 29/4/2009 passed by the Additional Sessions Judge, Sendhwa, District Barwani in Sessions Trial No.99/2008 whereby he has been convicted u/s. 302 of the IPC and sentenced to undergo life imprisonment and to pay fine of Rs.1000.00 and in default of payment of fine amount, to further undergo three months additional RI. Facts of the case in short are as under:

(2.) As per prosecution story, on 29/4/2008 near about at 9.00 pm., Laxman was sleeping outside his house. Near about at 10.00 pm., when his wife Retli Bai was feeding milk to her daughter, the present appellant - Pathaniya came there with an Axe in his hand and gave two blows on the neck of her husband Laxman. She shouted by taking his name as Pathaniya, then he fled away from the spot. Laxman died on the bed. Then the villagers viz. Vesla, Thawariya, Ramkishan, Dakhaniya and Ramla reached to the spot and saw Laxman lying dead on the bed. Retli Bai lodged the FIR in the police station that her husband used to visit the house of Pathaniya and he was having doubt about the illicit relations between Laxman and his wife Nawadi Bai and due to which he killed him. The FIR was registered for the offence u/s. 302 of the IPC at Crime No.97/2008. The investigation set into motion by the Investigating Officer B.S. Bhabhar. He reached to the spot and drawn 'Safina' form , prepared 'Naksha Mouka', recovered the dead body and sent the same for postmortem. On the basis of statements of Retli Bai and other villagers, the present appellant was arrested and on his disclosure, bloodstained Axe was recovered. The autopsy was carried out by the Medical Officer Dr. P.L. Rastiya, Primary Health Center, Varla and as per his opinion, the cause of death of Asphyxia due to excessive hemorrhage from the neck and wounds. After completing the investigation, the prosecution filed the chargesheet before the learned Judicial Magistrate, First Class (JMFC). Since the offence was triable by the Sessions Judge, therefore, the trial was committed to the learned Sessions Court. Charge u/s. 302 of IPC was framed against the appellant and he denied the charge and pleaded for trial. In order to prove the charge, the prosecution examined 9 witnesses and exhibited 15 documents. In defence, the appellant did not examine any witness but relied on the statement of Retli Bai vide Exh. D/1, D/2 and D/3. After evaluating the evidence that has come on record, learned Additional Sessions Judge vide judgment dtd. 29/4/2009 has convicted the appellant and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000.00 with default stipulation. Hence, the present appeal before this Court by the appellant.

(3.) Shri Jitendra Mandloi, learned counsel for the appellant submits that the appellant has been convicted solely on the testimony of Retli Bai (P.W.1). The other independent witnesses viz. Ramkishan (P.W.2), Jirman (P.W.3), Satish Chandor (P.W.4) and Dakaniya (P.W.5) have turned hostile and not supported the prosecution case. The incident said to have taken place at 10.00 pm. when the deceased was sleeping in his house, therefore, it was impossible to identify the accused in the dark. In her cross-examination Retli Bai has stated that there was a electric pole and the bulb was blinking, hence there was sufficient light, but in the spot map, no such electric pole has been mentioned by the Investigating Officer. Hence the conviction of the present appellant is bad in law and the same deserves to be set aside.