STATE OF MADHYA PRADESH Vs. MUKESH

JUDGEMENT

(1.) THIS application moved under Section 378(3) for grant of leave to file appeal against the order of acquittal passed by the Sessions and Special Judge, Jhabua in S.T. No. 36/2013 acquitting the accused respondent for offence under Section 306 in the alternative 302 of the IPC.

(2.) COUNSEL for the applicant State has candidly submitted that the application is barred by 373 days. However, considering the gravity of the offence and the acquittal, Counsel has prayed that the application be allowed.

(3.) COUNSEL for the applicant/State has vehemently submitted the fact that merely the accused has put forth that he was not present at the time of the incident and he had gone to Gujarat i.e. Ahmedabad to earn his livelihood was highly unreliable and the Trial Court had also wrongly concluded that the testimony of father of the deceased Pinju P.W.1 was hearsay. So also merely because there was no police record regarding beating given by accused Mukesh; and similarly Counsel submitted that the witnesses of the deceased were naturally her relatives and the testimony of P.W.2 Vermabai, mother of the deceased and P.W.3 Wala have also been disbelieved as hearsay, which is not appropriate under the circumstances. Counsel further submitted that there was plenty of incriminating evidence available on record, which indicate that the accused Mukesh used to beat the wife and doubted her moral character. Even her daughter Durga was born when she was abandoned and left her parental home. Counsel submitted that P.W.3 Wala has categorically stated that while dying Sunitabai told him that her husband was behind her when she was vomiting and he forcibly made her swallow the pesticide. Finally, Counsel submitted the testimony of P.W.7 Dr. Harish Baghel is not considered in proper perspective since he had found a mark on the cheek of the deceased and this indicates that the injuries were 23 days prior to the death and also indicating that the deceased was being treated with cruelty by the husband. There has been certain content of poison also found in the stomach of the deceased. The FSL was not available and it could not be concluded conclusively that death had occurred due the swallowing pesticides. Hence, Counsel prayed that leave be granted and the impugned order be set aside.