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2009 DIGILAW 1085 (MP)

DURSINGH s/o SEKADIYA v. STATE OF M. P.

2009-09-02

S.R.WAGHMARE, S.SAMVATSAR

body2009
JUDGMENT : S. SAMVATSAR, J. 1. This is an appeal filed by the appellant Dursingh s/o Sekadiya, being aggrieved by the judgment dated 12-3-1999 passed by the learned Ilnd Additional Sessions Judge, Alirajpur in Sessions Trial No. 222/95, whereby the present appellant is convicted for commission of offence under section 302 of the Indian Penal Code and sentenced him to imprisonment for life. 2. As per prosecution case the incident has taken place on 27-12-1994 at about 5 PM in the evening P.W.2 Gendibai was standing outside her cottage along with P.W.1 Premsiya, at that time his father Ghurkiya raised alarm. On hearing of the sounds of Ghurkiya appellant and his mother, his younger brother and his sister went to that direction and found that Dursingh (appellant) along with co-accused Kendu (acquitted) were assaulting his father by using Khalniya (wooden stick of Bullock cart) and lathi with an intention to kill. The complainant and his mother objected to the accused but they did not hear and kept on beating his father Ghurkiya as a result of which Ghurkiya fell down and died on the spot. The report was lodged by Premsiya at police station Chandpura on 27-12-1994 at 19 hours and crime number 148/97 was registered against the accused. 3. After investigation challan was filed against Dursingh for commission of offence under section 302/34 of the Indian Penal Code. The matter was committed to the Sessions Court and the Sessions Court after framing of charges and recording of evidence, acquitted Kendu from commission of offence under section 302/34 of the Indian Penal Code and convicted the appellant. Hence this appeal. 4. Shri Raman Solanki on behalf of the Counsel for the appellant has submitted that the Sessions Court has committed an error in convicting the present appellant when there is no reliable evidence on record to hold the appellant guilty for commission of offence under section 302 of the Indian Penal Code. Counsel prayed for setting aside the conviction. 5. Shri G. Desai, learned Dy.A.G. Counsel for the respondent State on the other hand has supported the impugned judgment and prayed for dismissal of the appeal. 6. In the present case we find that the prosecution case is totally based upon the statement of P.W.1 Premsiya who is son of the deceased. Counsel prayed for setting aside the conviction. 5. Shri G. Desai, learned Dy.A.G. Counsel for the respondent State on the other hand has supported the impugned judgment and prayed for dismissal of the appeal. 6. In the present case we find that the prosecution case is totally based upon the statement of P.W.1 Premsiya who is son of the deceased. He has stated in his statement that his father was died while he was returning to his house, Premsiya heard some sound of hitting lathi, when he reached on the spot he saw that the appellant causing injury by lathi on his head. He has also seen that the other accused was causing injury by arrow to his father. The other witness who has supported the prosecution case is P.W.2 Gindibai who is wife of the deceased. She has also stated that when her husband died she was standing outside her house with Premsiya. Her husband has gone to Alirajpur and was returning to his house. When he was 10-15 steps away from his house, Dursingh caused injury on the head of her husband and Kendu caused injury by arrow. 7. P.W.3 Dr. N. S. Dabar is the witness who has performed the post mortem of the deceased. He found one injury grievous i.e. on the neck of the deceased from backside which was caused by hard and blunt object. The vital injury is not found on the body of the deceased. The deceased sustained fracture in fourth and fifth cervical bone. Thus the injury attributed by the present appellant is fully corroborated by medical evidence. The statement of P.W.1 Premsiya and P.W.2 Gindibai are also consistent with the allegations made in the FIR and there is nothing on the record to deny the statement of the witnesses. In these circumstances the Court below has not committed any error in convicting the present appellant. 8. Hence the appeal is dismissed as sans merit. The appellant is on bail. He is directed to surrender before the concerned CJM within one month from today. In case of failure, arrest warrant will be issued against the appellant. CC as per rules.