PRADEEP AND ANOTHER Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellants have preferred the present appeal being aggrieved by the impugned judgment dated 7.2.2009 passed by learned Additional Sessions Judge to the Court of 1 st Additional Sessions Judge, Hoshangabad in S. T. No. 202/2008 whereby appellant no.1 Pradeep has been convicted for commission of offence under Section 302 of the IPC and appellant no. 2 Sandeep has been convicted for commission of offence under Section 302 /34 of the IPC and both the appellants have been sentenced to imprisonment for life along with fine of Rs.200/- in default of payment of fine further 6 months rigorous imprisonment.

(2.) The facts giving rise to this appeal in brief are that on 19.5.2008 at about 2:30 O'clock in the noon in village Luhariyakala the appellants and their younger brother Randeep and one Dhanraj were sitting in their house. Saroj Bai (PW-1), mother of the appellants, and her husband deceased Kailash also came to the house of the appellants where the appellants hurled filthy languages against Saroj Bai (PW-1) and also pushed her as she was having illicit relation with deceased Kailash. When the deceased tried to save her, appellants and their younger brother Randeep and one Dhanraj assaulted the deceased. During the incident, appellant Pradeep and co-accused Dhanraj assaulted with axe on the head of the deceased and other accused persons assaulted the deceased with lathi. On account of the injuries, the deceased fell down and became unconscious. Santi Bai (PW-1) called family members of the deceased and thereafter, the deceased was shifted to Itarsi Hospital where Saroj Bai (PW-1) lodged a report with regard to the incident which was registered as Crime No. 0/08 in Police Station Itarsi under Section 307/34 of the IPC and on the basis of it, FIR Ex.P/23 was registered at Crime No. 16/08 in Police Station Rampur, District Hoshangabad and Kailash died in the hospital on the same day. After completion of the investigation, charge sheet was filed under Section 302 of the IPC. Appellants Pradeep and Sandeep were tried together and Randeep was tried before the Juvenile Justice Board being juvenile and another co-accused Dhanraj was tried separately. By judgment dated 27.2013 passed by learned Second Additional Sessions Judge, Hoshangabad he has been acquitted of the charge under Section 302 of the IPC and the appellants by the impugned judgment has been convicted and sentenced as mentioned earlier.

(3.) The finding of the learned trial court has been assailed on the ground that testimony of the eye witness Sarojbai (PW-1) and Karan (PW-2) and Naval (PW-3) are not reliable and so far as the recovery of weapon is concerned, on the axe presence of human blood has not been established. So far as blood stains on the cloths wore by the appellants are concerned, there is no evidence about the fact that the appellants do not have blood group of B which was found on the cloths. Therefore, conviction cannot be based on the aforesaid circumstance and the appellants are entitled to acquittal of the offence. It is further submitted that the facts of the incident show that all of a sudden a quarrel took place and on the heat of passion without premeditation, incident happened and there is no evidence that which injury was caused by which accused and another co-accused Dhanraj has already been acquitted and against his acquittal no appeal has been filed and it was alleged that he also assaulted the deceased with axe. In the circumstances with all certainty it cannot be said that deadly injury was caused by appellant Pradeep. In such circumstances, the appellants can be convicted only for commission of offence punishable under Section 304 /34 of the IPC. Accordingly, conviction and sentence be modified.