Shri A.M. Kapadia, J. - (1.) This criminal appeal under Section 374 of the Code of Criminal Procedure ('the Code' for short), is directed against the judgment and order dated 02.04.2003 rendered in Sessions Case No.76 of 2002 by the learned Addl. Sessions Judge (Fast Track) Pratapgarh, whereby he convicted and sentenced appellant/accused Pappu s/o Chhogalal (hereinafter referred to as "A-1"), as under: JUDGEMENT_147_LAWS(RAJ)4_2009_1.html All the sentences were ordered to run concurrently.
(2.) The prosecution case, as disclosed from the F.I.R. and unfolded during trial, is as under: 2.1 On 10.08.2002, in the morning at about 4 O' clock, complainant Smt. Haga Kalbelia, resident of Salamgarh Hat, lodged a verbal report at Police Station Pratapgarh, alleging inter-alia that for last about 10 years she was living with Sorab Mansuri s/o Abdul Rehman as his wife and two children were born to them. One year prior to the incident, she left Sorab Mansuri and started living with Pappu s/o Chhoga Kalbelia but since he used to beat her, she left Pappu and again started living with Sorab Mansuri, in the rented house of Neka s/o Bajja Nath Kalbelia. On the day of incident, when she, her husband Sorab Mansuri and Imran, the nephew of Sorab Mansuri, were sleeping in house and the doors of house were kept open on account of summer, A-1 alongwith his brother Narunath entered in the house. A-1 was having a knife and Narunath A-2 was having a sword and both were saying that they would finish them. When her husband tried to get up, A-1 inflicted a knife blow on the chest of Sorab and when Pappu tried to inflict second blow, her husband Sorab raised his hand and therefore he received knife injury on his left hand. When she tried to intervene, Narunath also tried to chop her nose and as a result of which she also received injury on her nose. When she alongwith her husband tried to save their lives, her husband fell down in front of the house. On hearing cries, Sabeer, Jakir and Premnath came there but because of darkness accused could not be caught. Thereafter, her husband was taken to hospital where he was declared dead. 2.2 On the aforesaid information, a case under Sections 452, 302, 307, 323 and 324/34 IPC was registered. During the course of investigation, inquest was held on the dead body of deceased Sorab and thereafter the dead body was sent for autopsy. Panchnama of the scene of occurrence was prepared and statements of the witnesses were record. 2.3 At the end of investigation. as sufficient incriminating evidence was found against both the accused. chargesheet was filed against them in the Court of ACJM, Pratapgarh. Since accused Narunath (A-2) absconded, he was shown as absconder in the chargesheet. As the offence punishable under Section 302 IPC is exclusively triable by the Court of Sessions, the learned ACJM, Pratapgarh committed the case to the Sessions Court. The learned Addl. Sessions Judge, (Fast Track) Pratapgarh ('trial Court, for short), to whom the case was made over for trial, framed charge against A-1 for commission of offence as per the chargesheet. The charges were read over and explained to him. A-1 pleaded not guilty, and claimed to be tried, therefore, he was put to trial by the trial Court in Sessions Case No. 76/02. 2.4 To prove the culpability of the accused, prosecution examined as many as 17 witnesses and also produced documents Ex.P/1 to Ex.P/25. 2.5 After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against him and recorded his further statement under Sec.313 of the Code. In his further statement, accused A-1 denied the case of the prosecution in its entirety and stated that false case has been filed against him, however, he neither produced any evidence nor did he examine any witness in support of his defence. 2.6 On appreciation, evaluation, analysis and scrutiny of the evidence on record, trial Court came to the conclusion that the prosecution has successfully established the complicity of the accused for committing murder. It was also held that out of the two injuries received by the deceased, one injury was fatal. Trial Court further held that it is a case of pre-planned murder. 2.7 On the aforesaid finding, the trial Court held that offence against accused under Sec.302 IPC is proved. Consequently, the trial Court convicted A-1 for the said offences and sentenced him to undergone imprisonment as mentioned in foregoing paragraph of this judgment, which has given rise to the present appeal at the instance of A-1.
(3.) Learned counsel for accused A-1 Mr. Shaitan Singh submitted that there is no evidence to connect the accused with the crime except the evidence of PW16 Haga and PW12 Imran, who at the relevant time were residing with the deceased, therefore, no reliance can be placed on her testimony and it is unsafe to rely on her oral testimony. It is also submitted by him that the remaining witnesses have turned hostile, therefore, prosecution could not prove the case against A-1. On the aforesaid premises, learned counsel for the appellant submits that there is no evidence against the accused, however, the trial Court has not appreciated the evidence adduced by the prosecution in correct perspective and conviction and sentenced recorded against the accused is against the evidence on record, therefore, the impugned order of conviction and sentence suffers from non-appreciation of evidence and it deserves to be quashed and set aside by allowing this appeal and thereby acquitting the accused of the offence with which he is charged. Alternatively, it is also submitted by him that if this Court accept the evidence of the prosecution witnesses in toto, in that case also it is not a case of murder punishable under Sec.302 IPC but a case of culpable homicide not amounting to murder punishable under Sec.304 Part II IPC as the accused has inflicted only a single fatal blow on the lungs of the deceased and that too after seeing Haga there, to whom he claims to be his wife and who was staying with the deceased. He, therefore, urged to pass appropriate order in this regard.;