( 1. ) APPELLANT has filed this appeal against his conviction under Section 302 of the IPC, sentenced to R. I. for life and fine of Rs. 1,000/-, in default of payment of fine additional RI for 2 years passed by the learned Additional Sessions Judge, manawar, District Dhar in Sessions Trial No. 173/1990 vide judgment dated 7-1-1998.

( 2. ) ACCORDING to the prosecution case, police of Police Station badwani received information from hospital about arrival and admission of deceased Harikant, which was recorded in daily diary No. 1306/15-3-1990. Head constable Ashok Mishra (P. W. 10) was authorised to investigate into the matter. Deceased Harikant was having grievous injury on his head and was unconscious. He was accompanied by eye witness Kishan (P. W. 2), who disclosed that deceased Harikant Mandloi was assaulted by the appellant on a dispute regarding share of wheat, by Kharaliya (wooden log used in bullock-cart to give support to luggage ). On the basis of this, the offence under Section 307 of the IPC was registered vide FIR (Exh. P-13 ). The place of incident was within the jurisdiction of Police Station Manawar, therefore, FIR (Exh. P-13) was sent by Badwani police to Manawar police, where Crime No. 151/90 under Section 307 of the IPC was registered vide FIR (Exh. P-5 ). Deceased Harikant was medically examined first in time by Mr. Moti Mitrani (P. W. 4 ). His medical report is Exh. P-1. Deceased Harikant was shifted from Badwani Primary Health center to Choithram Hospital, Indore, where he was also examined and his report is Exh. P-12 proved by P. W. 8 Head Constable Tilak Singh. Deceased remained hospitalised for about 8 days and died on 22-3-1990. The inquest report (Exh. P-4) was prepared by the police and dead body was sent for postmortem examination to M. Y. Hospital, Indore. The post-mortem was performed by Dr. K. Agrawal. Appellant was arrested and from his disclosure statement (Exh. P-6) Kharaliya was seized through seizure memo (Exh. P-8 ). From the spot blood stained and controlled earth was also seized through seizure memo (Exh. P-15 ). After investigation appellant was charge-sheeted for commission of murder of Harikant.

( 3. ) APPELLANT denied the charges, therefore, put to trial. He did not examine any witness in defence, whereas prosecution examined 10 witnesses and got proved 18 documents to prove its case. Learned Trial Court found the appellant guilty, convicted and sentenced him as mentioned hereinabove. None present for the appellant though this appeal is listed in weekly cause list week commencing from 30th April, 2007 and also in daily cause list. The case is called twice, but none has appeared on behalf of the appellant. Appellant is on bail, but he is also not present. This is the appeal of the year 1998. Therefore, in view of the Supreme Court judgments passed by the cases of Beni Singh Vs. State of U. P. (AIR 1996sc2439) and Kishan Singh Vs. State of U. P. [ (1996) Vol. 9scc372], this appeal is heard finally on merit.

( 4. ) WE have heard the learned Counsel for the State who assisted us at length on all aspects of the case. On perusal of record and the impugned judgment, it emerged that the conviction of the appellant is mainly based on eye-witnesses account of Kishan (P. W. 2) and Najru (P. W. 3), medical evidence of Dr. Moti Mitrani (P. W. 4), statement of Dinesh (P. W. 1) to whom Kishan (P. W. 2) immediately gave information about causing of injury to deceased by the appellant upon which this witness with the help of Kishan (P. W. 2) took the deceased on motorcycle to hospital and statement of police officials Ramlal malviya (P. W. 9) and Ashok Kumar (P. W. 10 ). In this case post-mortem report of the deceased could not be proved because the concerned doctor was not available and prosecution tried its level best to trace him out. The summons were sent through Director, Health Services, Bhopal, who is the Controlling authority all over in M. P. , but the learned Trial Court had taken into