CHHAGAN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS appeal aims at setting aside the judgment dated 13-5-97 passed by the learned Addl. Sessions Judge, West Nimar, Mandleshwar in S. T. No. 284/96, whereby the learned Addl. Sessions Judge, finding the appellant Chhagan guilty of the offence under Section 302, IPC convicted and sentenced him to suffer imprisonment for life. However, he has been acquitted of the offence punishable under Sections 323 and 452, IPC. The learned Addl. Sessions Judge also acquitted the co-accused Shankar from the offence punishable under Sections 302, 323 and 452, IPC.

(2.) THE prosecution case in short, as placed before the Trial Court, is that in the intervening night of 3rd and 4th July, 1996 at 1. 00 AM in Village Sarva, P. W. 1 Jhinabai was sleeping inside her hutment alongwith her husband Mukam and children. The appellant and acquitted co-accused Shankar entered inside the hut. Appellant Chhagan told Mukan that "you have made my daughter to run away, I shall not leave you alive". With these words, the present appellant started causing axe-blows on the person of the deceased. When P. W. 1 Jhinabai tried to save her husband, the appellant caught her hair and pushed her aside. She was also assaulted on her scapula region by the handle of axe. She came out of the hut and went to nearby locality and raised cry attracting the villagers. Her father-in-law, P. W. 9 Onkar, P. W. 10 Mehkal and other villagers reached over there. She disclosed about the incident to the persons assembled there. She identified the appellant in the light of lamp. It is said that Fundibai, the daughter of appellant went away alongwith one Sakharam and the appellant was having doubt on the deceased Mukam for helping them. On the next day, i. e. , 4-7-96, at 9. 00 AM, P. W. 1 Jhinabai lodged the report at the Out Post Khankheda of P. S. Kasrawad. The distance of the Out Post is shown to be 14 Kms. from the village. The report could not be lodged because of night hours. The police stepped into investigation and prepared spot-map and inquest of the dead body. The dead body was sent for post-mortem examination, which was conducted by P. W. 4 Dr. Ramesh Yadav. The Investigating Officer prepared the seizure of blood-stained and controlled earth. After arrest of the appellant and co-accused, at the instance of the appellant an axe was seized. The seized Article s were sent for Chemical Examination to the Forensic Science Laboratory. After completion of investigation, charge-sheet was filed against the appellant and acquitted co-accused Shankar. The appellant denied the charges and his defence was that he was falsely implicated. In his defence, he did not examine any witness. Learned Trial Court, after examining the prosecution witnesses and hearing both the parties, while acquitting the co-accused Shankar, convicted and sentenced the appellant as indicated hereinabove.

(3.) THIS is the appeal of the year 1997. It has been listed before the Court for final hearing several times. On previous dates as well as even today, the appellant did not appear although he has been released on bail. Counsel for the appellant is also not present today. Even cm 27-3-06 and 28-3-06 none appeared and therefore, the appeal was adjourned. Again, 29-3-06, this Court waited for appearance of the Counsel for the appellant up-till 4. 15 PM, but non appeared on behalf of the appellant. Thereafter, the appeal was listed on 31-3-06 and 3-4-06. On these dates also, the Counsel for the appellant did not appear. Consequently, we have heard learned Counsel for the State Shri Girish Desai, Dy. Advocate General and also perused the entire record of the Trial Court as also the memorandum of appeal filed by the appellant. Initially this appeal was filed through jail. Thereafter, the appellant engaged a Private Counsel who appeared on 30-7-99 and argued on the application for suspension of sentence of the appellant. The appeal of appellant can be heard and decided on merit if he or his Counsel does not appear at the time of final hearing thereof.