BHADRIYA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) For taking exception to the judgment and order of conviction and sentence passed against them by learned II Addl. Sessions Judge, Alirajpur in the matter of Sessions Trial No. 421/2002, the appellants have approached this Court by preferring this appeal. Learned II Addl. Sessions Judge had convicted the appellants for the offence punishable under S. 307, 307/34 of the IPC and sentenced them to undergo RI for seven years each and fine of Rs. 300/- each in default of the fine, they shall undergo imprisonment for one month.

(2.) The prosecution case in short is that on 19-7-2002 in the evening complainant Dhulia (PW. 1) was returning back from the house of his relation named Kunwarsingh from village Moriavada after taking meals on celebration of festival "Divasa" (shraad of the forefathers of Kunwarsingh, in tribal community of Jhabua District, they are arranging this function on the day of dark moon one day prior or after). On the way Dhulia met appellants near the house of Ratansingh Bheel. The appellants asked complainant Dhulia as to why he came to their village to participate and take meal on occasion of "Divasa", upon this complainant Dhulia (PW. 1) replied the appellats that who are them to ask and inquire all this. The appellants annoyed on this answer and appellant No. 2 Ratniya and No. 3 Ukesh caught hold of the complainant Dhulia and appellant No. 1 Bhadariya shot an arrow which pierced near right ear of the complainant. Complainant immediately went back to the house of Kunwarsingh and disclosed about the incident. The incident was also witnessed by Hirlibai and Premsingh. The complainant lodged the report in the police station vide Ex.P. 1 on the same day in the night at 12 p.m., thereafter he was medically examined by Dr. P. K. Dhoke (PW.5). His MLC report is Ex.P. 19. After due investigation, charge-sheet was filed for the above mentioned offences by the police. The appellants denied the charges and pleaded innocence, therefore, put on trial. The pros- ecution has examined in total five witnesses and got proved 21 documents in its favour whereas appellants have not examined any witness in defence. The learned trial Court, after hearing both the parties, convicted the appellants as mentioned hereinabove.

(3.) The learned counsel for appellants have submitted that even if the complete prosecution case is accepted, the offence would not travel more than S.324/34 of the IPC. They have also submitted that there is no opinion available on record given by medical expert about the nature of injury. Appellant shot only one arrow without aiming a particular part of the body of the complainant and same has caused injury below right ear 1 cm x 1cm x 15 cm deep. It has also been submitted that appellants were having no previous enmity for forming intention to commit murder of complainant Dhulia (PW.l). The incident occurred all of a sudden when Dhulia and appellants met on the way and complainat instead of giving simple reply to the query put by the appellants behaved arrogantly with them. The learned counsel has also submitted that the appellant No. 1 Bhadriya is in jail since three year three months and 26 days whereas appellants No. 2 and 3 remained in jail in total nine month and 25 days. The learned counsel has also submitted that the appellants comes from tribal community of Jhabua District. They are the first offender and married persons. During the course of pendency of this appeal, daughter of appellant No. 1 Bhadriya has also died, therefore, on all these grounds they prayed for leniency in sentencing the appellants.