MUKESH KUMAR Vs. STATE OF M P

JUDGEMENT

(1.) Appellant is convicted for the offence under section 302, IPC and sentenced to imprisonment for life with fine of Rs.1000/-by the Court of Sessions Judge, Mandla in Sessions Trial No.111/98 decided on 29/11/99.

(2.) According to prosecution, on 29/10/97, at about 8.15 in the night, relief money to the earthquake victims was being disbursed in front of the rest-house situated at Jabalpur- Mandla Road at village Tikaria. At the crossing near the spot, Jagdish Singh along with his wife had come to receive the earthquake relief amount and was waiting for a vehicle to go back to his home. At that time, Shankarlal and deceased Rameshwar Sharma were also present on the spot. Jagdish told Rameshwar that he is not well from last two and a half months and wants to go home early and requested him to arrange some vehicle to take him back to his house. When Jagdish was talking to Rameshwar, then suddenly, appellant Mukesh appeared on the spot and gave a "Pharsa" blow on the head of Rameshwar from behind. "Pharsa" stuck in the centre of skull of Rameshwar and appellant ran away after causing injury. Rameshwar fell on the ground. "Pharsa" was removed by Dilip Patel and as the police station was just across the road, police was called and injured was taken in a Jeep to the hospital where he was declared dead. After the information about death of deceased was given at police station, Marg (Ex.P/2) was recorded under section 174, Cr.P.C. This information was received at 21.15 hours. Thereafter, FIR (Ex.P/1) was recorded at 21.20 hours at Police Station, Tikaria. Information was given by Shankarlal wherein he has specifically mentioned that offence is committed by Mukesh Kumar Lodhi S/o Ram Dayal Lodhi of Tikaria. Panchayatnama (Ex.P/3) of the dead body was prepared at 21.15 hours and "Pharsa" was seized from the spot vide Ex.P/4 on 29/10/97 at 21.30 hours. Spot map (Ex.P/5) was also prepared on the same day at 21.25 hours.

(3.) Learned counsel for the appellant submitted that the prosecution case rests upon the sole testimony of PW1 Shankarlal and other witnesses have not supported the case of prosecution. He submitted that evidence of Shankarlal is not reliable as Shankarlal has not seen the incident. He further submitted that since MLC of deceased is not filed, therefore prosecution case is doubtful. He submitted that on account of non compliance of section 157,Cr.P.C., it should be presumed that FIR and other documents are ante dated and submitted that appellant has not committed any offence. In the alternative, he submitted that even if the prosecution case is accepted as it is, then also, this will not be a case under section 302, IPC. He invited attention of the Court to the deposition of PW8 Dr. B.Prasad and submitted that the doctor has not opined that the injury was sufficient in the ordinary course of nature to cause death, which reflects that there was no intention on the part of appellant to cause death of the deceased. He submitted that in the absence of any intention and as single injury is caused to the deceased, this case is of culpable homicide not amounting to murder and appellant is liable to be convicted for the offence under section 304 of IPC instead of section 302, IPC.