MITHILESH Vs. STATE OF M P

JUDGEMENT

(1.) Appellants have preferred this appeal being aggrieved by the judgment dated 23.7.1992 passed by 3rd Additional Sessions Judge, Satna in S. T. No.30/90 convicting them under Section 304-I of IPC with sentence of five years RI and fine of Rs.500/-. In default of it further six months RI was awarded.

(2.) The factual matrix of the prosecution case in short are that in the intervening night of 7th and 8th June 1990 on hearing the noise of shouting from the house of Kalu Kachhi at village Khari, the complainant Awadhbihari and other villagers rushed towards that side where the beating of some person was going on by closing the door from inside. On making efforts then the door was opened by the appellant Kalu then they also found there, his son Mithilesh and wife Sukhmanti, out of them appellants Kallu and Mithlesh ran away from such place. The complainant and other villagers entered and saw the dead body of Mangleshwar, laying inside of the house, after sustaining the injuries on head, neck and waist; the same were appearing to be caused by means of axe (tangi). The deceased Mangleshwar was used to visit the appellant's house in regular course and also sitting there till late night by taking advantage of it he was murdered by the appellants. The FIR was lodged by said complainant Awadhbihari at Police Station Rampur Baghelan in the same night. After preparing the Panchnama of dead body carrying out other formalities the dead body was sent to hospital, where postmortem was carried out. During investigation the appellants were arrested and witnesses were interrogated. On disclosing the information by Kallu regarding place for concealment of alleged axe (tangi). His confessional memorandum was recorded at his instance. In pursuance of it, tangi was recovered. On completion of investigation the appellants were charge sheeted for the offence punishable under Section 302 read with Section 120-B of IPC.

(3.) After committal the case to the Sessions Court, the charge for the offence under Section 302 read with Section 120-B of IPC was framed against the appellants; they abjured the same on which the trial was held. The defence of the appellants was that Sukhmanti appellant No.3 was assaulted by the deceased with intention to commit rape on her. She was caught hold with folding hands by the deceased. On seeing the same her husband Kalu came to rescue her then he was assaulted by the deceased by means of tangi then by snatching the same from his hand in order to save his wife and himself he caused the alleged injuries to the deceased. Hence, they did not commit any offence. After recording the evidence on appreciation of it, by acquitting to the appellants from the aforesaid charge they were held guilty for the offence under Section 304-I of IPC and each of them were punished as said above. The same is under challenge in this appeal.