Rajeev Kumar Dubey, J. - (1.)This criminal appeal has been filed under Section 374 of CrPC against the judgment dated 28/05/2005 passed by Session Judge, Damoh in ST.No.34/2004, whereby learned Session Judge found the appellant guilty for the offence punishable under Section 302 of the IPC and sentenced him to life imprisonment.
(2.)Brief facts of the case are that one month before the incident appellant's cattle had entered into the deceased Benibai's farm and when Benibai approached the appellant, he assaulted her. Benibai lodged the report of that incident, due to which, the appellant had hostility with Benibai and to take revenge on 14/12/2003 at about 10:30 PM when deceased Benibai had gone to Dunay Ghat, Matoriya Nala to take bath and to wash her clothes, accused/appellant came there armed with axe and assaulted Benibai by axe. She sustained injuries on her back, chest, jaw and neck and consequently died. Gyanbai (PW/1), Dhanbai (PW/2) and Punabai (PW/10) saw the incident. Thereafter, Punabai (PW/10) went to Benibai's house, but no one was present there, so she went to Preetam Sahu's house, where her brother Mahesh (PW/11), husband of the deceased was present. She informed Mahesh (PW/11) that the appellant had assaulted Benibai. On that Mahesh (PW/11) along with Kamlesh (PW/3), Vinod (PW/5), Narayan Singh and Nanhe Bhai went to the spot, where Mahesh (PW/11) saw Benibai lying there in a wounded condition. Her clothes were stained with blood. On that Mahesh (PW/11) went to Police Station, Jabera and lodged the report (Ex.P/8), which was written by Inspector H.P. Singhai (PW/12) and registered Crime No.191/03 for the offence punishable under Section 302 of the IPC and investigated the matter. During the investigation he went to spot and prepared spot map (Ex.P/10) and seized blood stained and simple soil and one blood stained towel, blouse and shirt from the spot and prepared seizure memo (Ex.P/13) and also prepared inquest memo of dead body of the deceased Benibai. He also sent the dead body of Benibai to P.H.C, Jabera through Constable Mahendra Kumar (PW/8) along with an application (Ex.P/4) for autopsy, where Dr. KK. Athiya (PW/7) conducted the autopsy of the dead body of deceased Benibai and gave postmortem report (Ex.P/3). H.P. Singhai (PW/12) during investigation also recorded the case diary statement of Mahesh (PW/11), Punabai (PW/10), Dhan Bai (PW/2), Gyanbai (PW/1), Kamlesh (PW/3), Preetam, Ranveer Singh, Narayan Singh and Nanhebhai @ Dilip Singh. Further investigation was carried out by S.N. Awasthy (PW/9). He arrested the appellant on 20/12/03 and prepared arrest memo (Ex.P/7) and interrogated the appellant and on his information seized one Axe (Article-A), and also seized blood stained shirt (Article-B) and pant (Article-C), which were worn by the appellant at the time of incident and prepared information memo (Ex.P/1) and seizure memo (Ex.P/2) and after the investigation he filed charge-sheet before the Judicial Magistrate, I Class, Damoh, who committed the case to the Court of Sessions. On that S.T.No.34/2004 was registered. Learned Session Judge, Damoh framed the charge against the appellant for the offence punishable under Section 302 of the IPC and tried the case. The appellant abjured his guilt and took the defence that he is innocent and has falsely been implicated in the case. However, after trial learned Session Judge found the appellant guilty for the offence punishable under Section 302 of the IPC and sentenced him as aforesaid. Being aggrieved by the impugned judgment, appellant filed this appeal.
(3.)Learned counsel for the appellant submitted that two eyewitnesses of the incident i.e. Gyanbai (PW/1) and Danbai (PW/2) turned hostile and did not support the prosecution story. Other witnesses Kamlesh (PW/3), Vinod (PW/5) and Mahesh (PW/11) were not the eyewitnesses of the incident. Only on the basis of the statement of so-called eyewitness Punabai (PW/10) the learned Sessions Judge found the appellant guilty for the aforesaid offence, while there are many contradictions and omissions in the statement of Punabai (PW/10). She is relative of deceased Benibai. From the cross-examination of this witness, it is clear that she did not see the incident. Her statement is also not supported by other prosecution witnesses. Apart from the evidence of Punabai (PW/10) there is no other evidence on record, which connects the appellant with the crime. Although police allegedly seized one blood stained Axe and clothes from the possession of the appellant on his information but the investigating officer did not send those seized articles to FSL and in absence of FSL report, it cannot be said that the stains allegedly found on the seized articles were of human blood. So on the basis of that seizure, no adverse inference can be drawn against the appellant as axe is commonly found in the house of villagers. Learned trial Court without appreciating all these facts wrongly found the appellant guilty for the aforesaid offence. He further submitted that even otherwise the act of appellant at the most comes under Section 304 part II of IPC. In support of his arguments, learned counsel of the appellant also placed reliance on the judgments of this Court passed in the case of Rajendra Singh Vs. State of M.P.,2013 LegalEagle 929 (MP) and in the case of Manoj @ Manja Vs. State of M.P. passed in Cr.A.No.2043/2007 decided on 07/10/2017.