MUKDARIYA Vs. STATE OF MP

JUDGEMENT

(1.) By this appeal under section 374 of the Cr.P.C , 1973 the appellant has challenged the judgment dated 19/2/2010 passed by the Sessions Judge, Alirajpur in ST No. 149/2009 convicting the appellant for offence under section 302 of the IPC and sentencing him to life imprisonment with fine of Rs. 1000/- and default sentence of six months. The appellant has been tried and convicted for causing murder of Manna.

(2.) The prosecution case is that on 27/6/2007 when Manna was returning from the house of Madiya Sutar an arrow was shot on him by Bahadariya which had missed and Manna came back running to his house. Sacru Bhil the nephew of Bahadariya had earlier caught hold of Bhigdi the daughter of Manna and the dispute was resolved by the panchayat, since then Bahadariya was having enmity with Manna. On 27/6/2007 Manna along with his wife Badnibai (PW-1) around 11.00 PM had gone to the house of Bhurla, the village choukidar, to enquire as to why the arrow was shot on him by Bahadariya but since it was late night, therefore, Bhurla did not come out of his house and Manna his wife Badnibai (PW-1) and his son Bacharia (PW-2) were returning when on the road in front of the house of Chetaria all the accused persons came with the bow and arrows in their hand and stopped them. The accused persons said that Manna had not given the Jhagada ie. money of the earlier girl, therefore, they will kill him and all the other accused persons had caught hold of Manna and the appellant had shot an arrow which had hit Manna below left shoulder and Manna had immediately fallen down. When Badnibai (PW-1) shouted, the other persons namely Juwansingh( PW-9), Abariya (PW-6), Kunwarsingh (PW-4), Nanla (PW-3) and Kalia (PW-5) came running who also saw the accused persons running away from the spot in the torch light. Manna had died on the spot and the FIR was lodged on the same night at the Police Station, Sorwa vide Ex.P.1. The spot map Ex.P/5 was prepared and Safina Form Ex.P/6 was issued and Naksha Panchnama Ex.P/7 was prepared. The seizure of blood stained soil, a pair of slippers was made vide Ex.P/8 and the body was sent to Alirajpur hospital for postmortem where Dr. R.Mandal (PW-8) had done the postmortem and prepared the postmortem report Ex.P/4. The seized items were sent to the FSL and the FSL report Ex.P/46 was received. After completing the investigation, the appellant and other coaccused persons were charged for committing the offence under sections 148, 302 or 302/149 of the IPC and the trial took place in which all other co-accused persons have been acquitted because the offence against them could not be proved beyond doubt, but the appellant has been convicted for offence under section 302 of the IPC and sentenced.

(3.) Learned counsel for appellant submits that against the appellant also no offence under section 302 is made out and he has wrongly been convicted. He has also submitted that at the most the appellant has committed offence under section 304 Part II of the IPC.