SABAI @ SAMAILAL Vs. STATE OF M P

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of conviction and order of sentence dated 07.10.1996 passed by the First ASJ, Mandla, in Sessions Trial No.76/1996, whereby and where under after holding the appellant guilty for culpable homicide not amounting to murder, trial Court has convicted the appellant under Section 304 Part-I of the IPC and sentenced him to undergo R.I for five years.

(2.) It would be significant to mention here that the real brother of the appellant, Choudhary alias Bhagwat has been acquitted by the above-mentioned trial Court from the charge of Section 302/34 of the IPC.

(3.) As per case of the prosecution, that on 05.03.1996, on the day of Holi, Madan (deceased) and Gudda (PW-1) had come out for playing Holi in the village Vijaypur. At about 1:00 PM, near market chouraha, the appellant started abusing to Madan in regard to the previous dispute, when Madan stopped him from abusing the appellant got angry and threatened Madan to kill and he ran away to assault Madan. Appellant and his brother caught hold Madan in Kotwari Mohalla, where the appellant caused an incised injury at the buttock of Madan by a knife and ran away. At the time of incident, companion of the deceased, Gudda (PW-1) was also assaulted by the appellant and his brother. After getting information from others, Gyan Chand (PW-10) came to the spot, who lodged FIR (Ex. P-22) on the same day at police station Bijadandi. Injured Madan was sent to PHC, Bijadandi, where on 05.03.1996, Dr. J.K. Jain (PW-8) found incised wound on the left buttock of Madan, under which the muscles and blood arteries had been cut and thus there was excessive bleeding and due to this the condition of Madan was not good and there was smell of liquor was coming out from his mouth and he was unconscious. MLC report (Ex. P-9) was recorded by Dr. J.K. Jain (Pw-8). Madan was admitted in Bijadandi hospital, but after sometime he died. On 06.03.1996, Dr. J.K. Jain (PW-8) performed the autopsy of dead-body of Madan and recorded postmortem report (Ex. P-9). In his opinion, the cause of death was shock and excessive bleeding from the body and the single inflicted deep incised injury was sufficient in the ordinary course of nature to cause death and nature of death was homicidal. Dr. J.K. Jain (PW-8) also examined Gudda (PW-1) on 07.03.1996 and found three simple injuries on his body and recorded MLC (Ex. P-10). FIR was recorded by Station Officer L.S. Kashyap (PW-11). On previous information given by the appellant (Ex. P-1), a Katar (type of knife) was seized vide seizure memo (Ex. P-3) from a pit behind the house of the appellant. A lathi was seized on the information of brother of the appellant. The seized articles were sent for examination to FSL, Sagar. After completing of the investigation, charge-sheet was filed before the C.J.M, Mandla, who committed the case to the Sessions Court, Mandla, from where, First ASJ, Mandla, received the case on transfer of trial.