JAMUNA Vs. STATE OF M P

JUDGEMENT

(1.) THE appellants have directed this appeal being aggrieved by the judgment dated 26. 9. 1996 passed by the 1st Additional Sessions judge, Sidhi in Sessions Trial No. 55/95 convicting to each of them under Sections 304 Part-II r/w 149, 147 and 340/142 of the IPC with a direction to undergo for ten years RI with fine of,rs. 1000, in default of it further six months RI in the first count while six months RI separately under both the remaining counts.

(2.) THE facts giving rise to this appeal in short are that on dated 27. 1. 1995 at about 3. 30 in the noon Tejmani, son of Sumer the Watchman of village Rajmilan recorded the merge intimation report at Police Station Madha contending that at about 10 o'clock in the morning, he went to the market of said village where he came to know from Bhailal Nai that Raj Kumar is caught hold raid handed in 'the last night by Jamuna Prasad Sahu while he was stealing the motor pump of Surajlal sahu and thereafter he was kept in his house. On which he visited such place of suraj Lai where nearby his house, he saw the Raj Kumar lying under the tree of jack fruit. At the same time Devi Sharan, Sarpanch came there, whom Raj Kumar confessed. that he came there to commit theft. On which son of Surajlal asked him (the Watchman) taking the Raj Kumar to Police Station but physically Raj Kumar was not feeling comfortable and could not walk, inspite of it, son of Suraj Lal sahu brought him up to the bus stand where he died. The signs of bleeding were present on the nose and ear of said Raj Kumar. As per further case the said informer could not explain the cause of the death in his intimation. In it's enquiry after preparing inquest Panchanama the dead body was sent to hospital where its postmortem was carried out, in which the death of Raj Kumar was found to be homicidal in nature and the appellants were prime facie found to be the accused for causing the alleged injuries to Raj Kumar, on which FIR was registered against them at the aforesaid Police Station on dated 28. 1. 1995 with respect of the offence under Section 147, 149, 342, 302 of IPC. After holding investigation they were charge sheeted for the same. After framing charges of the aforesaid offenses and recording evidence, on appreciation, the appellants instead the aforesaid offenses are held guilty under Section 304, Part - II, r/w 149, 147 and 342/149 of ipc and punished with the above mentioned punishment. The same are under challenge in this appeal.

(3.) . Shri P. R. Bhave, learned Senior Advocate, assisted by Shri Bhanu Pratap yadav taking me through the evidence adduced by the prosecution and exhibited documents said that prosecution has failed to prove the alleged offence beyond reasonable doubt against any of the appellants. He further said that the story put fourth by the prosecution has not been proved by any independent source of evidence. The independent witnesses Umakaul (PW-2), Hirwa (PW-4) and devisharan (PW-9) turned hostile at trial and have not stated anything against any of the appellants. So far witnesses Raju (PW-5) and Chhoti (PW-6), the son and the wife of the deceased are concerned, he said that in view of the postmortem report and the deposition of concerned doctor their testimonies are not reliable. They being family members of the deceased are the interested witnesses that is why their testimonies could not be a foundation for conviction of the appellants unless corroborated by any independent source of evidence. Besides this in view of the inter se inconsistency between the depositions of aforesaid witnesses Raju and Chhoti and also in view of contractions and omissions from the case diary statements they are not reliable. As per deposition of Dr. R. B. Singh who carried out, the autopsy of deceased on 28. 1. 1995, Raj Kumar died before 36hours from the time of carrying out the postmortem while as per deposition of said Raju and chhoti they saw the Raj Kumar alive lastly with the appellants on 27. 1,1995. In view of medical opinion it could not be inferred that on 27. 1. 1995 the deceased was alive, on proper appreciation of evidence the trial court ought to have acquitted the appellants but contrary to it, they have been convicted under the wrong premises. With these submissions he firstly prayed for acquittal of the appellants. In alternative he argued that in any case if the impugned conviction of the appellants is upheld then considering the scenario of the incident in which it was happened and taking into consideration that the incident took place long back before thirteen years in the year 1995 and the appellants have already suffered some months in the judicial custody before releasing them on bail during trial and also suffered some period in jail between the period from the date of holding the conviction till passing the order for suspension of their jail sentence by this court, and they did not have any other criminal antecedents in their lives and are the only responsible persons to look after their family affairs, instead to send them again jail by adopting some lenient view their jail sentences be reduced up to the period for which they have already suffered the sentence as undergone, as stated above, and prayed to allow the appeal accordingly.