ALOKNAG CHOUDHARY Vs. STATE OF M.P.

JUDGEMENT

(1.) FEELING aggrieved by the judgment of conviction and order of sentence dated 25.9.1990 passed by Sessions Judge, Balaghat in Sessions Trial No. 46/1990 convicting the appellant under Section 302 and 324 of Indian Penal Code (hereinafter referred to as 'IPC') directing appellant to suffer rigorous imprisonment of life and one year rigorous imprisonment respectively, he has preferred this appeal under Section 374(2) of the Code of Criminal Procedure. In brief the case of prosecution is that appellant was having very cordial relations with Mohd. Sharif (hereinafter referred to as 'the deceased') 3 -4 months prior to the incident. The members of both the families were visiting to the house of each other frequently, however, 3 -4 months prior to the incident all of a sudden the relations became strained and the bitterness extended upto the extent that deceased and appellant were not liking each other and they happened to hurl the abuses. On the fateful day i.e. 2.12.1989 on account of the marriage of one Bhatia's son, the dinner was arranged in which the deceased, his wife Sahebunisha, Dilip Patel and Smita Patel went to attend the dinner party. It is said that all these persons went in a jeep which was being driven by Mohd. Saeed. The jeep was parked nearby the berm of the road and all these persons went inside to attend the marriage party while Mohd. Saeed who was the driver of the jeep remained outside and along with one person, namely, Karim @ Maqbool was enjoying the heat of fire as the night was shivering cold. At near about 10 -10.15 p.m. deceased, his wife Sahebunisha, Dilip Patel, Smita Patel and one Mr. Khatrikar came out from the house of Bhatia and behind these persons, the appellant, acquitted co -accused person, Smt. Meeta Nag Choudhary who is the wife of appellant also came out. The deceased was going towards his jeep along with wife Sahebunisha, Dilip Patel etc. and appellant proceeded towards his motorcycle along with his wife. The decreased opened the gate of jeep and directed the persons to sit inside, accordingly Smita Patel entered in the jeep and sat. The decreased and other persons were standing nearby the jeep, at that juncture, the appellant started his motor -cycle and drove it up to some distance and thereafter made it stationary near the electric pole. According to the prosecution, the distance of the jeep and motorcycle was near about 5 -7 paces. It is said that acquitted co -accused Meeta Nag Choudhary opened the Dickey of motorcycle and took out a 'Gupti' and handed over it to appellant. As soon as Gupti was handed over by Meeta Nag Choudhary to her husband (appellant), he rushed towards the deceased, who was standing near by the left gate of the jeep and inflicted a blow of Gupti on his back, as a result of which the deceased turned and thereafter on the front side again he was assaulted by the appellant and the blow landed on his chest. It is said that appellant gave further two more blows on the decreased which landed on his chest and rib region. Appellant was intending to give further more blows, however, Sahebunisha the wife of the deceased came forward and tried to intervene, as a result of which she sustained injury on her hand by the 'Gupti'. The incident has been witnessed by Sahebunisha, Mohd. Saeed, Maqbool, Khatrikar, Dilip Patel, Smita Patel and Harshad. The appellant thereafter returned and fled on motorcycle along with his wife.

(2.) THE deceased on account of injury sustained to him fell on the ground. Witness Mohd. Saeed and some other persons uplifted him and with the help of Harshad, Khatrikar and Dilip Patel put him in a jeep of one Sardar Ji and brought the decreased at Balaghat hospital and thereafter, Sahebunisha, the wife of the deceased, was dropped at her house. It is said that in the night about at 11.30, witness Saeed again went to the hospital Balaghat, where he was informed that the deceased has passed away. Dr. Mukesh Shrivastava who was on duty at the relevant point of time examined the deceased as soon as he was brought to the hospital and found him to be dead at 10.25 p.m. as a result of which the doctor sent a memo to Station Officer Incharge, Balaghat and eventually ASI Shri Rangari registered Marg No. 79/89. The Station Officer Incharge Shri Omkarnath Shrivastava on coming to know that deceased had died, came to hospital and examined the dead -body of the deceased. Thereafter on 3.12.1989 at 0.16 hours, he registered the case under Section 302 IPC. Mst. Sahebunisha who is the wife of deceased also came again to hospital, as she was having injury of Gupti on her hand, Section 324 IPC was also added. On 3.12.1989 at 3.00 a.m. on being produced by Mst. Sahebunisha from her house a woolen shawl and red sare(sic) was seized. The investigating officer on 4.12.1989 arrested acquitted co -accused Smt. Meeta Nag Choudhary, since the appellant was absconding he could not be arrested, however, he surrendered himself on 9.12.1989 before the Chief Judicial Magistrate and his arrest was made at 13.20 hours. It is pertinent to mention here that though appellant was arrested on 9.12.1989 at 13.20 hours, however, no recovery was made from him and it is only on 10.12.1989 memorandum under Section 27 of the Indian Evidence Act was prepared. The appellant made discovery in regard to motor -cycle and Gupti. In pursuance to his memorandum, Gupti, which was used as weapon in the commission of offence was recovered at his instance near the bank of Ban Ganga which was found to be hidden under leaves etc. Thereafter, at his instance a motorcycle was seized from his house having a dickey. The seized articles were sent for chemical examination.

(3.) THE dead body of the deceased was subjected to autopsy and Dr. P.S. Gour on 3.12.1989 at 12.00 hours performed the post -mortem. According to Doctor, the deceased breathed his last on account of first injury which was caused on the chest region. The Doctor opined that the injury sustained by deceased could have been caused by sharp and pointed weapon like Gupti or knife. The post -mortem report is Ex. P/3. After completion of investigation, a charge -sheet was submitted in the competent Court, which, on its turn, committed the case to the Court of Session where the same was tried. The learned trial Judge, after going through the charge -sheet framed charges punishable u/s 302 and 324 I.P.C. against the appellant and acquitted co -accused Smt. Meeta Nag Chaudhary who was charged u/s 302 read with section 34 I.P.C. The accused persons abjured their guilt and pleaded complete innocence as well as maladroit implication.