HABIB KHAN Vs. STATE OF M.P.

JUDGEMENT

(1.) BY this criminal appeal u/s. 374 of the Code of Criminal Procedure, appellant has challenged his conviction for the offences punishable u/s. 302 of the Penal Code by judgment dated 25.7.2006 passed by Special Judge, Dhar in S.T. No. 3/2005 convicting and sentencing him to life imprisonment with fine of Rs. 500/ - and in case of non -payment of fine, he was to undergo further simple imprisonment of six months.

(2.) BRIEF facts of the prosecution case are that on the date of incident i.e. 21.11.2004 at 6.30 pm. the deceased Onkar S/o. Harsingh filed a report to the effect that he was resident of Village Jamnia and in Village Umarban he used to do joint agriculture with one Kailash S/o. Gajanand. About 3 -4 days of the incident, the Forest Guard Habib (present appellant/accused) had told him to fetch the firewood and on the date of incident at about 5.30 pm., when he was going to the home of Kailash from the field, as he reached to Nayapura Umarban, the accused Habib stopped him and asked that he was asked to fetch the firewood and why he had not done so. The deceased retorted and said that he could not fetch the firewood today and would do so tomorrow. Whereupon, the accused Habib started hurling abuses of mother and sister and threatened to kill him. He went inside his house and came out with a knife and assaulted the deceased in the stomach twice. At the time of incident, Kailash, Gajanand, Bablu of Umarban were present on the spot and tried to intervene in the matter. On report, the A.S.I. R.S. Chouhan (PW -9) registered the Crime No. 032/2004 for the offences punishable u/s. 294, 307 of Indian Penal Code and u/s. 3(2)(5) of the S.C. S.T. (Prevention of Atrocities) Act, 1989 and F.I.R. was recorded vide Exh. P -7 and P -8 and thereafter sent the injured for medical examination.

(3.) COUNSEL for appellant vehemently urged the fact that it was a case of false implication. He submits that even if the evidence of Kailash (PW -4), who is supposed to be an eye -witness, is considered, according to this witness, he was informed by his son Bablu (PW -3) that Onkar Baba was injured by means of knife and witnesses were urgently required and had, therefore, he is a witness of res -gestae and only witnessed accused Habib at the place of incident and had thereafter taken the injured Onkar to the Police Station and to the hospital. Counsel submitted that thus he was not an eye -witness and cannot be relied upon for conviction.