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2003 DIGILAW 1287 (MP)

Balwan Sha v. State of M. P.

2003-11-24

S.L.JAIN

body2003
JUDGMENT Appellant Balwan Sha stands convicted for offence punishable under sections 307, IPC and sentenced to RI for seven years by the impugned judgment and order dated June 23, 1995, passed by II Additional Sessions Judge, Chhindwara, in Sessions Trial No. 104/94. The prosecution case, in brief, is that appellant Balwan Sha is brother of Premlal. Premlal being issueless, kept complainant Umendra with him from the time when he was only one year old. Appellant Balwan Sha developed an apprehension that if complainant Umendra will continue to live with Premlal, he will give his entire property to Umendra and he will be deprived of any share in that property. Therefore, on 26.2.1994, at about 2 p.m. when Umendra was present in the house of Premlal, the appellant armed with an axe, reached there and dealt two axe blows on the neck, one on the left arm and one on the back of Umendra. When Hemkaran, Jangu, Bharosa and Dashrath reached at the place of occurrence, the appellant took to his heels. Umendra was taken to the police station Amarwada, where he lodged First Information Report, Ex. P-6. Umendra was examined by Dr. Smt. Shabha Moitra (PW 1), who opined that out of the six wounds found on the complainant, five were caused by sharp edged weapon and one by hard and blunt object. She opined that in the absence of timely treatment, death of Umendra was possible due to the injuries. During investigation, an axe was seized at the instance of the appellant, which was sent to FSL, Sagar for chemical examination. After investigation, a challan for offence punishable under section 307, IPC was filed against the appellant. Learned Additional Sessions Judge framed charge against the appellant for the offence punishable under section 307, IPC. The appellant abjured the guilt and pleaded that he has been falsely implicated. On the basis of the above prosecution case, the trial Court came to the conclusion that the prosecution has established its case and accordingly, by the impugned judgment and order) convicted and sentenced the appellant as indicated above. Aggrieved by the conviction and sentence aforesaid, the appellant has filed this appeal. I have heard Ku. Ruksana, learned counsel appearing for the appellant and Shri S.K. Gangrade, learned Panel Lawyer, for the State, and perused the record of the trial Court. Ku. Aggrieved by the conviction and sentence aforesaid, the appellant has filed this appeal. I have heard Ku. Ruksana, learned counsel appearing for the appellant and Shri S.K. Gangrade, learned Panel Lawyer, for the State, and perused the record of the trial Court. Ku. Ruksana, learned counsel for the appellant led me through the record and contended that the learned Sessions Judge erred in accepting the prosecution evidence. She submitted that the conviction and sentence imposed upon the appellant are illegal and incorrect, as such, are liable to be set aside. On the other hand, Shri Gangrade, learned State counsel, has supported the judgment recorded by the trial Court convicting and sentencing the appellant as indicated above. Umendra Kumar (PW 8) has stated that on the relevant date he was a student of class 7th and was living with his maternal grandfather in village Lingpani. At about 2 p.m. when he was in the house, the appellant came there and assaulted him with an axe. He received injuries on neck, shoulder and head. When he raised cries, the appellant fled way from the spot. On hearing his cries Kalmi Chand (PW 2) and Ram Bharosa (PW 3) came there. Ram Bharosa tied a dhoti on his head. The complainant also stated that since childhood he was living with Prem Lal who was issueless and the appellant apprehended that if he will live with Premlal, he (the appellant) will not get any share in the property of Premlal. Ram Bharosa (PW 3) has stated that his house is situated at a distance of about 50 feet from the house of Premlal. He saw the incident from his house. According to him, appellant assaulted Umendra. After assaulting Umendra, the appellant ran away. Thereafter, he reached the spot and tied a dhoti on the injury of Umendra. According to prosecution, the incident was also seen by Kalmi Chand (PW 2) but he has not supported the prosecution and has been declared hostile. Premlal (PW 7) has stated that the appellant is his brother's son and Umendra is the son of his sister-in-law's daughter and he was living with him since the age of one year. At the time of incident he was in his field and when he returned from his field, he learnt that Umendra was assaulted by the appellant. Premlal (PW 7) has stated that the appellant is his brother's son and Umendra is the son of his sister-in-law's daughter and he was living with him since the age of one year. At the time of incident he was in his field and when he returned from his field, he learnt that Umendra was assaulted by the appellant. The evidence of complainant Umendra (PW 8) and Ram Bharosa (PW 3) inspires confidence. Nothing has been brought in their cross-examination to discard their testimony. The ocular evidence has been corroborated by medical evidence also. Dr. Smt. Shobha Moitra (PW 1) has stated that she found one lacerated wound and six incised wounds on the person of Umendra. Out of six incised wounds two were on his neck, one below left ear, one on clevical bone and two were on left fore-arm. She has opined that the injuries, if would not have been treated timely, the death was possible as the injuries on the person of Umendra were on the vital parts of the body. The evidence of Umendra is further corroborated by the FIR, Ex. P-6 which was promptly lodged by him in P.S. Amarwada. Beni Singh Patel (PW 10), the Investigating Officer has stated that an axe was seized at the instance of the appellant and sent for chemical examination to FSL, Sagar. But the report of FSL, Sagar has not been filed. In the absence of the report of FSL the seizure of axe which is an article of common use among the farmers in the villages, cannot be said to be an incriminating circumstance but in view of ocular evidence corroborated by medical evidence, the failure on the part of the prosecution to prove this circumstance will not make any change in the result of the case. The learned trial Judge in his judgment has discussed the evidence in detail. The findings of the trial Court are based on cogent reasons. Looking to the totality of the evidence as discussed above, I am of the view that there is overwhleming evidence to bling home the guilt against the appellant. In view of the aforesaid discussion, I do not find any reason to interefere with the conviction recorded by the trial Court against the appellant for offence punishable under section 307, IPC. Looking to the totality of the evidence as discussed above, I am of the view that there is overwhleming evidence to bling home the guilt against the appellant. In view of the aforesaid discussion, I do not find any reason to interefere with the conviction recorded by the trial Court against the appellant for offence punishable under section 307, IPC. Looking to the fact that in the greed of getting the property, the appellant caused injuries on the vital parts of the body of complainant Umendra, the sentence of seven years' RI imposed upon the appellant by the trial Court cannot be said to be harsh or unjust. As such, the order of imprisonment passed by the trial Court against the appellant also does not call for any interference by this Court. In the result, the appeal fails and is liable to be dismissed. The appeal is, accordingly, dismissed. The impugned judgment and order of the trial Court convicting and sentencing the appellant as indicated above, are hereby maintained.