MANOJ Vs. THE STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This criminal appeal has been filed under Section 374 of the Cr.P.C. against the judgment dated 09.10.2007 passed by Sessions Judge, Bhopal in Sessions Trial No.112/2007, whereby the learned Judge found appellant Manoj guilty for the offence punishable under Section 302 of IPC and appellant Suryabhan guilty for the offence punishable under Section 302/34 of IPC and sentenced both of them to undergo life imprisonment with fine of Rs.5,000/- with default stipulation respectively.

(2.) Brief facts of the prosecution case are that on 15.02006 at about 9 PM when Kheman Bai (PW/1) was cooking food in her house, her son Abhijeet (PW/2) came there and told her that appellants Manoj and Suryabhan were assaulting his father in uncle's house. On that Kheman Bai (PW/1) went to the place along with Abhijeet (PW/2), where she saw that appellant Suryabhan had caught hold of the hands of her husband, Vishwajeet and appellant Manoj was standing there armed with knife, when she tried to rescue her husband, appellant Suryabhan caught hold of her hair and threw her, due to which, she fell down and appellant Manoj inflicted injury by knife to her husband Vishwajeet in his chest. On that, Vishwajeet fell down and blood started oozing out from his body and thereafter the appellants ran away from the spot. She took Vishwajeet with the help of Vijay (PW/3) to J.P. Hospital by Auto where Dr. Prashant Kumar Jain (PW/12) examined Vishwajeet and declared him dead and gave report (Ex.P/16) and also informed the police in this regard. On that ASI G.S. Sengar (PW/7) went to hospital, Kheman Bai (PW/1) narrated the incident to him. On that, he wrote FIR (dehati nalsi) (Ex.P/1) and sent it to Police Station for its original registration. On that Crime No.93/2007 for the offence punishable under Section 302/34 of IPC was registered at Police Station Govind Pura against the appellants by Inspector Rajkumar Sharma (PW/9) and during investigation of that crime, M.L. Choudhary (PW/10) went to spot and seized blood stained soil and simple soil from the spot and prepared seizure memo (Ex.P/2) and also prepared spot map (Ex.P/14). A.S.I D.S. Patel prepared inquest report of dead body of deceased Vishwajeet and sent it for postmortem. Dr. D.S.Badkur (PW/6) conducted the postmortem of dead body of deceased Vishwajeet and gave autopsy report (Ex.P/5) and also seized blood stained clothes from the body of deceased and handed it over to concerned constable in a sealed packet who brought that packet to P.S. Govind Pura where A.S.I. Rajeev Lochan Pande (PW/11) seized that packet from his possession and prepared seizure memo (Ex.P/15). R.K. Sharma (PW/9) during investigation recorded the statements of Kheman Bai (PW/1), Abhijeet (PW/2) and Vijay (PW/3). On 16.02007, he arrested appellants and prepared arrest memo (Ex.P/11 & Ex.P/12) and on the information of appellant Manoj he seized one scissor from his possession and prepared information memo (Ex.P/3) and seizure memo (Ex.P/4) and also sent seized scissor for query to Dr D.S. Badkur (PW/6) and queried whether the injury sustained by Vishwajeet could be caused by that scissor. On that Dr D.S. Badkur (PW/6) after examining that scissor gave query report (Ex.P/7) to the effect that the injuries No.1, 6 and 7 sustained by Vishwajeet could be caused by that scissor. R.K. Sharma (PW/9) also sent all seized article for chemical examination along with draft (Ex.P/13) to FSL Bhopal. From where report was received. The police after investigation filed the chargesheet before JMFC, Bhopal, who committed the case to the Court of Sessions. On that charge-sheet, S.T.No.112/2007 was registered. Learned Sessions Judge framed charge for the offence punishable under Section 302 against the appellant Manoj and under Section 302/34 of IPC against the appellant Suryabhan and tried the case. Although, appellants abjured their guilt and took the defence that they are innocent and falsely been implicated in the crime and they also gave statement in his defence under Section 315 of Cr.P.C. and also produced defence witnesses Hemu Bai (DW/1), Manohar (DW/2), Madhukar Patil (DW/3) on the point that in the incident quarrel took place between Vishwajeet and Kheman Bai (PW/1) and when they were fighting with each other, Manoj went there and intervened on which Kheman Bai hit Manoj with stone causing him to be hurt and later Khemai Bai logged the false report against the appellants. However, after trial learned Sessions Judge found the appellant Manoj guilty for the offence punishable under Section 302 of IPC and appellant Suryabhan guilty for the offence punishable under Section 302/34 of IPC and sentenced them as aforesaid. Being aggrieved from that judgment, appellants filed this Criminal Appeal.

(3.) Learned counsel for the appellants submitted that learned trial court without properly appreciating the prosecution evidence wrongly found the appellants guilty for the aforesaid offences. The so called eyewitnesses Kheman Bai (PW/1) and Abhijeet (PW/2) are relatives of the deceased Vishwajeet and Vijay (PW/3) is also an interested witness. Police did not produce any independent witness regarding the incident. There are omissions and contradictions in the statements of Kheman Bai (PW/1), Abhijeet (PW/2) & Vijay (PW/3) regarding incident. It is clear from their cross-examination that they did not see the incident. They gave false statement against appellants. Learned trial court without appreciating all these facts wrongly found appellants guilty for the aforesaid offences. Even otherwise the eyewitnesses of the incident i.e., Kheman Bai (PW/1), Abhijeet (PW/2) & Vijay (PW/3) did not state that appellant Suryabhan also assaulted deceased Vishwajeet, so no offence is made out against appellant Suryabhan. Learned Trial Court wrongly found the appellant Suryabhan guilty for the offence punishable under Section 302/34. As far as the appellant Manoj is concerned, from the statement of Kheman Bai (PW/1), it only appears that in the quarrel appellant Manoj inflicted only one injury on deceased Vishwajeet. In these circumstances, his act at the most comes under Section 304 Part II of IPC. Hence, counsel prayed that the impugned judgment be set aside and the appellants be acquitted from the said offences.