ANTULAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellant has preferred this appeal being aggrieved by the judgment dated 26.02.2010, passed by the First Additional Sessions Judge, Be- tul in S.T. No. 182/2009, whereby the appellant has been convicted for the of- fence under Section 302 of IPC and sentenced to Life Imprisonment and fine of Rs.1000/- with stipulation clause.

(2.) The prosecution case in brief is that on 5 th May 2009 near about 11.30 pm, the deceased, Ismile and accused - Antulal and brother of Ismile, Riaz, (PW-7) after having their dinner in the house of deceased were sitting out of the house and talking at that moment, some quarrel took place be- tween the deceased and the accused and the accused assaulted the de - ceased with axe and caused injuries on the neck of the deceased. On ac - count of the injuries, the deceased fell down. Thereafter, the accused as- saulted twice with the axe on the person of the deceased. Seeing the afore - said incident, Riaz, (PW-7) ran away on account of fear and thereafter he informed the incident to Kuwarlal @ Gurudeo and his brother, Golu @ Shahjad on telephone and called them and went to Police Station, Sarani and lodged a report at Police Station, Sarani, where Crime No. 186/2009 was registered. On autopsy of the dead body of the deceased, it was found that the death of the deceased was homicidal death on account of the injuries caused on his neck and head and the accused was arrested. On the basis of informa- tion given by him an axe was recovered and sent to F.S.L. After comple - tion of the formalities of the investigation, the charge sheet was filed against the accused under Section 302 of IPC before the J.M.F.C., Betul and the case was committed and tried by the Ist Additional Sessions Judge, Betul and charge under Section 302 of IPC was framed against the accused. He denied the correctness of the charge and pleaded that he is innocent and falsely implicated. Learned trial court after completion of the trial con - victed and sentenced the appellant - accused as stated earlier, hence this appeal.

(3.) This appeal has been filed on the ground that this case is mainly based on the statements of Riaz, (PW-7) and he is not reliable witness. Learned trial court has not appreciated his evidence and so far evidence with regard to the seizure of the axe is concerned, in the absence of find- ings of blood group on the axe, it cannot be said that the seized axe was the same axe, which was used in the incident. Hence, the evidence of the recovery of the aforesaid axe at the instant of the accused is immaterial, hence, the conviction is not sustainable. It is further submitted that the con- viction under Section 302 of IPC is contrary to law. The facts of the case es - tablish that the incident was taken place suddenly with the heat of passion on account of the quarrel and at the time of incident both the appellant and accused were in drunken condition and not having too much of sense. In the circumstances, the appellant - accused assaulted the deceased, hence, his act came with the purview of Fourth Exception of Section 300 of IPC. Therefore, his conviction is required to be modified to convict him under Section 304 of IPC.