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2006 DIGILAW 485 (MP)

Chhagan v. State of Madhya Pradesh

2006-04-04

S.L.KOCHAR, SHUBHADA R.WAGHMARE

body2006
Judgment ( 1. ) THIS appeal aims at setting aside the judgment dated 13-5-97 passed by the learned Addl. Sessions Judge, West Nimar, Mandleshwar in S. T. No. 284/96, whereby the learned Addl. Sessions Judge, finding the appellant Chhagan guilty of the offence under Section 302, IPC convicted and sentenced him to suffer imprisonment for life. However, he has been acquitted of the offence punishable under Sections 323 and 452, IPC. The learned Addl. Sessions Judge also acquitted the co-accused Shankar from the offence punishable under Sections 302, 323 and 452, IPC. ( 2. ) THE prosecution case in short, as placed before the Trial Court, is that in the intervening night of 3rd and 4th July, 1996 at 1. 00 AM in Village Sarva, P. W. 1 Jhinabai was sleeping inside her hutment alongwith her husband Mukam and children. The appellant and acquitted co-accused Shankar entered inside the hut. Appellant Chhagan told Mukan that "you have made my daughter to run away, I shall not leave you alive". With these words, the present appellant started causing axe-blows on the person of the deceased. When P. W. 1 Jhinabai tried to save her husband, the appellant caught her hair and pushed her aside. She was also assaulted on her scapula region by the handle of axe. She came out of the hut and went to nearby locality and raised cry attracting the villagers. Her father-in-law, P. W. 9 Onkar, P. W. 10 Mehkal and other villagers reached over there. She disclosed about the incident to the persons assembled there. She identified the appellant in the light of lamp. It is said that Fundibai, the daughter of appellant went away alongwith one Sakharam and the appellant was having doubt on the deceased Mukam for helping them. On the next day, i. e. , 4-7-96, at 9. 00 AM, P. W. 1 Jhinabai lodged the report at the Out Post Khankheda of P. S. Kasrawad. The distance of the Out Post is shown to be 14 Kms. from the village. The report could not be lodged because of night hours. The police stepped into investigation and prepared spot-map and inquest of the dead body. The dead body was sent for post-mortem examination, which was conducted by P. W. 4 Dr. Ramesh Yadav. The Investigating Officer prepared the seizure of blood-stained and controlled earth. from the village. The report could not be lodged because of night hours. The police stepped into investigation and prepared spot-map and inquest of the dead body. The dead body was sent for post-mortem examination, which was conducted by P. W. 4 Dr. Ramesh Yadav. The Investigating Officer prepared the seizure of blood-stained and controlled earth. After arrest of the appellant and co-accused, at the instance of the appellant an axe was seized. The seized Article s were sent for Chemical Examination to the Forensic Science Laboratory. After completion of investigation, charge-sheet was filed against the appellant and acquitted co-accused Shankar. The appellant denied the charges and his defence was that he was falsely implicated. In his defence, he did not examine any witness. Learned Trial Court, after examining the prosecution witnesses and hearing both the parties, while acquitting the co-accused Shankar, convicted and sentenced the appellant as indicated hereinabove. ( 3. ) THIS is the appeal of the year 1997. It has been listed before the Court for final hearing several times. On previous dates as well as even today, the appellant did not appear although he has been released on bail. Counsel for the appellant is also not present today. Even cm 27-3-06 and 28-3-06 none appeared and therefore, the appeal was adjourned. Again, 29-3-06, this Court waited for appearance of the Counsel for the appellant up-till 4. 15 PM, but non appeared on behalf of the appellant. Thereafter, the appeal was listed on 31-3-06 and 3-4-06. On these dates also, the Counsel for the appellant did not appear. Consequently, we have heard learned Counsel for the State Shri Girish Desai, Dy. Advocate General and also perused the entire record of the Trial Court as also the memorandum of appeal filed by the appellant. Initially this appeal was filed through jail. Thereafter, the appellant engaged a Private Counsel who appeared on 30-7-99 and argued on the application for suspension of sentence of the appellant. The appeal of appellant can be heard and decided on merit if he or his Counsel does not appear at the time of final hearing thereof. ( 4. ) IN this context the judgment rendered by S. C. in the cases of Bani Singh and Ors. The appeal of appellant can be heard and decided on merit if he or his Counsel does not appear at the time of final hearing thereof. ( 4. ) IN this context the judgment rendered by S. C. in the cases of Bani Singh and Ors. v. State of U. P. AIR1996 SC 2439 , 1996 (2 )BLJR1481 , 1996 Crilj3491 , 1996 (3 )Crimes54 (SC ), JT1996 (6 )SC 287 , 1996 (2 )KLT424 (SC ), 1996 (II )OLR (SC )216 , 1996 (5 )SCALE126 , (1996 )4 SCC720 , [1996 ]supp3 SCR247 and Kishan Singh v. State of U. P. 1993 (3 )SCALE312 , (1996 )9 SCC372 , [1992 ]supp2 SCR305 , can usefully be referred here. ( 5. ) THE conviction of the appellant is based on the solitary testimony of P. W, 1 Jhinabai, the wife of the deceased Mukam. Since the incident did occur initially inside the hutment of the deceased and witness P. W. 1 Jhinabai. Therefore, her presence at the scene of occurrence at the crucial time was natural. She immediately tried to save her husband and also rushed towards the house of the villagers. In the same night, the villagers assembled at her house and this witness disclosed the name of the appellant as the assailant of her husband. Her version is duly corroborated by the statements of P. W. 9 Onkar and P. W. 10 Mehkal. The say of this witness P. W. 1 Jhinabai is that in the night, she was sleeping alongwith her husband and children inside the hut and appellant and one unknown person reached at her hut. The appellant gave axe-blows on the person of her husband. She could not see as to what was there in the hands of the other appellants. The axe-blows were inflicted on the head of deceased Mukam and because of blows, blood started oozing and when she tried to save her husband, the appellant Chhagan caught her hair and made her to stand. Thereafter, she, while crying ran away in the same night. Therefore, the villagers assembled and she narrated the incident to them also. ( 6. ) THIS witness further stated that the daughter of the appellant named Fundibai had run-away and the appellant was having doubt on her husband that as if her husband had made her to run away from the house of the appellant. Therefore, the villagers assembled and she narrated the incident to them also. ( 6. ) THIS witness further stated that the daughter of the appellant named Fundibai had run-away and the appellant was having doubt on her husband that as if her husband had made her to run away from the house of the appellant. Next day, she lodged the report Ex. P-l at the Police Out Post, Khamkheda. Her version in the Court is duly corroborated by the First Information Report (Ex. P-l), so far as the appellant is concerned. In the memo of appeal, the appellant has raised the ground that the judgment and finding of the Trial Court is contrary to the evidence available on record and the prosecution has failed to prove its case beyond reasonable doubt. The memo of appeal was sent through jail authority and the appellant prayed for appointment of an amicus curiae to defend him but, thereafter, he engaged a Private Counsel who filed an application for suspension of sentence vide IA. No. 1393/97. The evidence of P. W. 1 Jhinabai can be criticised on the ground of her being the wife of the deceased and she tried to save the other acquitted co-accused in the Court by resiling her earlier statement and contents of the First Information Report Ex. P-l. We have given our anxious consideration to this point and we do not find any substance in favour of the appellant, because the incident occurred inside the house of the witness P. W. 1 Jhinabai and deceased Mukam. Therefore, her presence on the spot was natural. She tried to save her husband and thereafter, she ran away to call the villagers and on their assemblage she immediately disclosed the name of the appellant to them and P. W. 9 Onkar and P. W. 10 Mehkal supported her version. ( 7. ) SO far as the appellant Chhagan is concerned, there is consistency in the statement of P. W. 1 Jhinabai and the same has been duly corroborated by the First Information Report (Ex. P-l) as well as by the evidence of P. W. 4 Dr. Ramesh Yadav who, on examination, found four incised injuries on the person of the deceased caused by hard and sharp object. All the incised wounds were caused on the head of the deceased. P-l) as well as by the evidence of P. W. 4 Dr. Ramesh Yadav who, on examination, found four incised injuries on the person of the deceased caused by hard and sharp object. All the incised wounds were caused on the head of the deceased. Apart from these incised wounds, one contusion and two bruises were also found by the autopsy-surgeon. In the opinion of the doctor, deceased died because of head injuries due to coma. All the injuries were ante-mortem in nature sustained on the head of deceased which were sufficient to cause death. The post-mortem report is Ex. P-7. ( 8. ) P. W. 1 Jhinabai was also medically examined by this doctor, but he did not find any external injury on her person. Her medical report is Ex. P-9. This witness has stated that the appellant had dealt a blow by the handle of the axe on her back portion, but the doctor did not find any external injury as the same could be caused before long lapse of time and the blow might not be so forceful which could cause external injury. The witness must be wearing saree on her person. Therefore, the external injury may not have appeared. ( 9. ) IN cross-examination, the witness P. W. 1 Jhinabai has denied the defence suggestion that the injury could be caused on the person of the deceased by a fall from hutment. We are also of the opinion that by a fall from the hut, the deceased could not have sustained several wounds on the head which could only be caused by sharp and hard object like axe. ( 10. ) THE evidence of P. W. 1 Jhinabai would not be fragile because she did not depose against the acquitted co-accused Shankar and for that she has been declared hostile by the prosecution since there is consistency in her statement for causing injury by axe to her husband by the appellant after entering inside her hutment. Thus, having regard to the discussion as aforesaid, this Court is of the view that this appeal must be dismissed having no substance. ( 11. ) IN the result, this appeal fails and is hereby dismissed. Thus, having regard to the discussion as aforesaid, this Court is of the view that this appeal must be dismissed having no substance. ( 11. ) IN the result, this appeal fails and is hereby dismissed. Office is directed to intimate the appellant to appear before the Trial Court for hearing the result of his appeal and judgment on 18-5-06, when he shall be appearing on 5-5-06 (the date fixed by the office for his appearance before the Registry ). The Trial Court shall thenceforth send the appellant to jail for serving out the remainder part of his sentence. On failure of the appellant to appear on the specified date, the Trial Court take necessary steps for his appearance and arrest for being sent to jail. Let a copy of this judgment be sent to the Trial Court immediately for compliance.