SOHBAT PARTE Vs. THE STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This appeal has been filed under Section 374 of the Cr.P.C. against the judgment dated 24/9/2007 passed by Sessions Judge, Betul in S.T. No.27/2007, whereby learned Sessions Judge found appellant guilty for the offence punishable under Section 302 of IPC and sentenced him to undergo Life imprisonment with fine of Rs.2,000/- with default stipulation.

(2.) Brief facts of the case are that on receiving the information that Saheblal (PW/5), father of appellant/accused was ill, appellant Sohbat and his wife Kamla Bai went to Shankar's house situated at village Kalapani to see him on 17/11/2006, where Saheblal worked. At that time, Balmukund (PW1) son of the appellant was at school. After returning from school, when he came to know that his parents had gone to Kalapani, he also went to village Kalapani, where after eating the meal at 8-9 p.m, Balmukund (PW1), his mother Kamla Bai, aunt Phullo (PW3), Matlo (PW6) and appellant Sohbat slept in a room. In the night at about 1-2 a.m., the appellant went outside the house to urinate. Balmukund (PW1) also followed him. After peeing, appellant came inside the house and assaulted Kamalabai with an axe which hurt Kamalabai's neck. On hearing his mother's shout, complainant Balmukund came to the spot and snatched the axe from the appellant's hand. Due to injury, Kamla Bai died on the spot. On receiving that information, Inspector B.L. Singh (PW10) went to the spot, where Balmukund lodged the report (Dehati Nalishi)(Ex.P-1). He wrote that report and sent it to P.S. Shahpur for original registration. On that report, police registered Crime no. 244/2006 for the offence punishable under Section 302 of the IPC. B.L. Singh (PW10) investigated the crime and during the investigation, he prepared spot map (Ex.P-3) and also seized simple soil and blood-stained soil, axe, blanket, bed sheet and shawl from the spot and prepared seizure memo (Ex.P-4). He also prepared inquest report of dead body of Kamla Bai (Ex.P-7) and sent her dead body for postmortem to CHC, Shahpur along with application (Ex.P-10A), where Dr. Mahendra Patil (PW9) conducted an autopsy of the dead body of Kamla Bai and gave P.M. report (Ex.P-9). He also seized the cloths from the dead body of Kamalabai and sent it to P.S. Shahpur in a sealed packet through Constable Ramsingh, which was seized by the H.C. Rupendra from Ramsingh's possession and prepared seizure memo (Ex.P/16). B.L. Singh (PW10) also arrested the appellant on 18/11/2006 and prepared arrest memo (Ex.P-11). He also seized blood-stained clothes of the appellant worn by him and prepared seizure memo (Ex.P-10) and he also queried from Dr, whether the injury sustained by Kamla Bai could be caused by the seized axe. On that, Dr. Mahendra Patil gave query report (Ex.P-9) to the effect that the injury found by him on Kamalabai's dead body could be caused by this axe. He also recorded the statement of prosecution witnesses Balmukund (PW1), Charan Singh(PW2), Phullo Bai(PW3), Sammu Lal (PW4), Saheb Lal(PW5), Matlo Bai(PW/6), Shyambati and Jhabbu and sent all seized articles for chemical examination to F.S.L. Sagar through S.P. Betul along with the draft (Ex.P-13) from where the report (Ex.P-14) was received along with a letter and after completion of the investigation, charge sheet was filed before JMFC, Betul, who committed the case to the Court of Session, where S.T. No.27/2007 was registered. Learned Sessions Judge framed the charge against the appellant for the offence punishable under Section 302 of the IPC and tried the case. The prosecution produced as many as 10 witnesses for proving its case. Appellant abjured the guilt and took the defence that he was innocent and has falsely been implicated in the case. However, after trial learned Sessions Judge found appellant guilty of the offence punishable under Section 302 of the IPC and sentenced him as indicated above. Being aggrieved from that judgement, appellant filed this appeal.

(3.) Learned counsel for the appellant submitted that the so-called eyewitness Balmukund (PW1), clearly admitted in his cross-examination that at the time of incident, he was outside of the house and after hearing shouting he reached the spot which clearly shows that Balmukund (PW1) did not see the incident and other witnesses Phullo Bai (PW3), Sammulal (PW4), Saheblal (PW5) and Matlo Bai (PW6) also admitted in their court's statements that they did not see the incident. Balmukund (PW1) informed him regarding the incident which shows that they were also giving the statements regarding the incident on the instant of Balmukund (PW1), while he himself did not see the incident so their statements also have no value. Learned trial Court without appreciating these facts wrongly found appellant guilty of the offence punishable under section 302 of the IPC. Even otherwise, prosecution witnesses Balmukund (PW1) and Saheblal (PW5) admitted in their statements that at the time of incident, appellant was unsound mind. So otherwise also, the act of the appellant according to section 84 of IPC comes under the exception. So, offence under Section 302 was not anyway made out against the appellant.