BHERU Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal is filed by the accused -Bheru and is directed against the judgment dated 15th December 1970, passed by the Sessions Judge, West -Nimar -Mandaleshwar, M.P., in Sessions Trial No. 172 of 1970. The appellant has been convicted under section 302, I.P.C., and has been sentenced to imprisonment for life.

(2.) THE prosecution case in brief was that there was a dispute between the brother of the accused and the deceased Babu over an open plot of land lying between their houses. About twenty days prior to the date of the incident, a quarrel took place between the deceased Babu and Gangaram the brother of the accused. Then on 29 -9 -1970 at about 7 -30 A.M., when Daulatsingh P.W. 2, and Ghisalal P.W. 4 were sitting in the shop of the accused along with Mangilal P W. 3, the appellant saw the deceased Babu coining from towards Narbada The accused is alleged to have hit Babu with a 'kharali' Article 'A' in order to take revenge for the assault committed by Babu on his brother. Babu fell down and became unconscious the accused thereafter dealt two more blows with the 'kharali' on the head of the deceased Babu. Thereafter Babu was taken to the hospital and Dhayana P.W. 7 lodged the first information report Ex. P -1 mentioning that Babu was assaulted by the barber of the village. Babu succumbed to the injuries at 11.45 A.M. on the same day. The postmortem examination was conducted by Dr. Gaikwak P.W. 17 and his report is Ex. P -15/A/. There were following external injuries over the body of the deceased: -

(3.) THE evidence against the accused consists of the testimony of three eye witnesses Daulatsing P W. 2 Mangilal P.W. 3 and Ghisalal P.W. 4. The contention of the learned counsel, that the presence of these witnesses at the scene of occurrence was not proved, is wholly untenable. The accused in his examination under section 342, Cr P.C., has admitted that at the material time Daulatsingh P.W. 2 and Ghisalal P.W. 4 were present at the scene of occurrence. We have been taken through the testimony of the three eye witnesses and we do not find any reason to disbelieve their testimony. Their evidence is corroborated by the testimony of Motesingh P.W. 5, who reached the scene of occurrence immediately after the assault when the accused armed with a kharali' was caught hold of by Mangilal P.W. 3. There is, therefore, no reason to disbelieve the evidence of the eye witnesses. The fact that they could not witness the beginning of the assault does not in any manner affect the veracity of their testimony. The prosecution has thus been able to prove beyond reasonable doubt that the injuries resulting in the death of Babu were caused by the accused.