CHHOTA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) BEING aggrieved by the impugned judgment dated 5th September, 1991 passed by Special Judge, Gwalior in Special Case No. 8/85, whereby the Trial Court has convicted the appellant under Section 302/34 of IPC and sentenced to imprisonment for life, this appeal has been preferred by the appellant.

(2.) THE facts shorn of unnecessary details lie in a narrow compass. The appellant has been convicted with the aid of Section 34 of IPC. The incident took place on 5-5-84 at about 6 p. m. in front of the house of the deceased in Mohalla Jangipura at Dabra. The appellant who was carrying a 12 bore gun in his hand came in the company of Charanjeet on the spot. Charanjeet took the gun from the appellant and fired two repeat shots at Babulal, as a result of which Babulal fell down inside the veranda of his house and thereafter all the three accused persons fled away from the spot. Babulal died while being to police station. The report of the incident was lodged by Mithlesh (P. W. 5), wife of the deceased. Crime was registered. The matter was investigated and charge-sheet was filed.

(3.) AS per prosecution story, the incident is said to be witnessed by Subhan Khan (P. W. 1), Hari (P. W. 2), Mithlesh (P. W. 5), who is wife of the deceased Babulal, Santosh (P. W. 7), who was 6 years' old child of the deceased and Kamlesh widow of the brother of the deceased, but she has not been examined. The Trial Court after considering the evidence of aforesaid eyewitnesses found that the appellant came on the spot alongwith another co-accused Charanjeet and one other, who could not be arrested and identified till now and at that time he was carrying a gun in his hand. Charanjeet took his gun on the spot but he had not objected. Charanjeet fired two repeat shots at deceased Babulal and thereafter he fled away alongwith that Charanjeet from the spot. The appellant has taken a specific defence in this case that he was going to meet Patwari alongwith his gun as he was called by Patwari and he had gone alongwith his gun and when he reached near the river, Charanjeet came behind him and snatched away his gun and ran away. Thereafter he went to the police station to lodge the report and he remained at the police station. He stated that when the dead-body of the deceased came in the police station then only he knew that Charanjeet has killed Babulal. The appellant's further specific defence was that when incident took place he was present at the police station. But he has admitted that his report was not written at the police station. However, the Trial Court found that it could not be proved from the defence version that he has lodged any report about snatching of his gun by Charanjeet from him and therefore the Trial Court found the appellant guilty on the basis of his presence on the spot under Section 34 of the IPC and convicted him and sentenced as aforesaid, against which the appellant has filed this appeal. During trial, accused Charanjeet died. Therefore, the trial stood abated against him. One more accused who was present on the spot, could not be arrested till now and he is still absconding.