Mohd. Fahim Anwar, J. - (1.)The present appeal has been preferred by the appellant/ accused under Section 374 (2) of the Code of Criminal Procedure, 1973, being aggrieved by the judgment of conviction and order of sentence, dated 08.01.2008, delivered by the learned First Additional Sessions Judge, Balaghat, in Sessions Trial No.70/2007, whereby the appellant has been found guilty for commission of offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as 'the IPC') and sentenced to undergo
(2.)The case of the prosecution in brief is that, prior to the incident, appellant has demanded Rs.10,000/- from Kheluram, who denied his demand, on account of which, appellant threatened Kheluram to his life. Apart from this, when Kheluram opposed the appellant to cultivate on the Government land, the appellant kept animosity with Kheluram. The case of the prosecution further is that, on 22.05.2007 at about 09:30 pm, an altercation ensued between appellant Shobharam and Kheluram at Narmada Chowk, Sihora, under the jurisdiction of Police Station Gramin, District Balaghat, on that dispute, appellant caused 12-13 blows on the person of Kheluram by means of iron Katta, which was used for slaughtering the goat. On hearing his cry, Jaikishan (PW-1), Jugal (PW-2), Ashish (PW-4) and Dhaniram (PW-3) reached the spot and had seen the incident in the light of bulb. On seeing them, the appellant fled away from the spot. Thereafter, the appellant came on the spot again and caused severe injuries to Kheluram, as a result of which he succumbed to his injuries on the spot. A Marg intimation was given by Jaikishan (PW-1) at Police Station Gramin, Balaghat. On his information a Dehati Marg Intimation was registered at the spot by Inspector Shri Anil Bisen and the same was sent to Police Station Navegaon (Gramin), where the First Information Report under Crime No.49/2007 for the offence punishable under Section 302 of IPC was registered against the appellant. On 23.05.2007 a Panchnama (Ex.P-9) of the body of deceased was prepared and the body of deceased Kheluram was sent for postmortem. After completion of investigation, the charge-sheet has been filed agaisnt the appellant under Section 302 of IPC before the concerning Chief Judicial Magistrate, Balaghat, who committed the case to the Court of Sessions at Balaghat. The learned trial Court framed the charge under Section 302 of IPC. The appellant abjured his guilt and prayed for trial. The learned trial Court after analyzing the record, convicted the appellant under section 302 of IPC and sentenced him to suffer imprisonment for life and fine of Rs.1,000/- with default stipulation.
(3.)Learned Amicus Curies appears on behalf of the appellant submits that the impugned findings recorded by the trial Court suffer from perversity and illegality. It is further submitted that the learned trial Court failed to see that there is no direct evidence available against the appellant. There is no eyewitness in support of alleged offence. The prosecution has failed to prove its case beyond reasonable doubt. The learned trial Court has not considered the entire material available on record while delivering the impugned judgment. The learned trial Court also erred in relying upon the version of Jaikishan (PW-1), Juglal (PW-2) and Dhaniram (PW-3). The learned trial Court has not considered the entire material available on record while delivering the impugned judgment. The learned trial Court failed to see that there was no blood on the sharp edged weapon and the prosecution had not proved that the blood found upon the weapon is human blood. It is also submitted that the benefit of Probation of Offenders Act ought to have been given to the appellant. It is also submitted that the learned trial Court did not appreciate the whole evidence on record. In view of the aforesaid, prayer has been made that the judgment of conviction and order of sentence deserves to be set aside and the appellant may be acquitted.