GHANSHYAM Vs. STATE OF M P

JUDGEMENT

(1.) This appeal under Section 374 (2) of the Criminal Procedure Code 1973 preferred by the accused/appellant is directed against a Judgment dated 31 st July 2007 delivered in Sessions Trial No. 116/2006 by the Sessions Judge Datia (M.P.), convicting thereby the appellant for causing murder of Laxman, son of Har Prasad Jatav, which is an offence punishable under Section 302 of I.P.C. and sentencing him to undergo imprisonment for life with a fine of Rs. 10,000/-, in default of payment of which to suffer additional rigorous imprisonment of two years.

(2.) Briefly narrated the prosecution case is that on 22 nd October 2006 at about 7 p.m., in village Padari, Police Station, Pandokhar district Datia, Laxman (since deceased) and his wife Smt. Kunti (PW-4) were returning back to their residence from cattle-stall, situated at some distance. When Laxman alongwith his wife reached near the house of Gyan Singh Jatav, accused also reached there. When the deceased demanded money borrowed to the accused for business, hot talks took place between them including a scuffling. After hearing voice of quarrel, Nathuram (PW-5) uncle of deceased and Babulal (PW-6) brother rushed to the spot. At that moment, accused took out his county-made pistol and fired a shot which bullet which hit the scalp of deceased causing severe injuries. Laxman fell down on the earth and died instantaneously on the spot. On the day of incident, in night at 11 p.m., Babulal (PW-6) brother of the deceased lodged the F.I.R. at Police Station Pandokhar upon which a Crime No. 148/2006 and Marg Report (Ex.P/14) at No. 25/2006 were registered. On next day in the morning, the investigation and inquiry were set in motion. After issuing the notices (Ex.P/5) the witnesses were invited to join the investigation on the spot. The memo of dead body (Ex.P/6), spot map (Ex.P/7), seizure memo of articles from the spot (Ex.P/9) were prepared. Postmortem on the dead body was performed. The casediary statements of the eye-witnesses and material witnesses were taken. Accused was arrested and weapon of crime was recovered. The articles of crime were chemically examined in the State Forensic Science Laboratory. After inquiry and investigation, the chargesheet was filed against the present accused. On committal, the Sessions trial commenced and after recording the evidence, the accused-appellant was convicted and sentenced for commission of offence under Section 302 of I.P.C., hence this appeal.

(3.) It is contended by the learned counsel appearing for the appellant that the judgment of conviction and sentence recorded by the Trial Judge is against the facts and the law, hence, same is liable to be set aside. It is pointed out that the eye-witnesses in this case are related and they are not at all worthy of credence. Particularly looking to the omissions and contradiction contained in the statements of eye-witnesses and their case diary statements, their evidence seems to be wholly unreliable. Thus, it is contended that the prosecution has examined only interested witnesses in this case and no independent witness was examined to prove the guilt against the accused-appellant. It is lastly contended that the trial Judge has erred to follow the settle proposition of law that even if entire prosecution case is taken to be true, the guilt of the appellant would come under culpable homicide not amounting to murder punishable under Section 304 of I.P.C. Hence, it is prayed that by allowing the appeal, the accused be acquitted of the charge.