JUDGMENT

Agarwal, J. --

1. This appeal has been filed by the sole appellant-Suresh s/o Motiya being aggrieved by judgment dated 30th June, 2008 passed by the Court of Additional Sessions Judge, Sironj, District Vidisha in Sessions Case No. 159/2006 convicting the appellant under the provisions of sections 307, 324 and 302 of IPC with three years' RI and fine of Rs. 500/- under section 324 of IPC with default stipulation of three months' further sentence. Similarly, he has been convicted under section 307 of IPC with seven years' RI and fine of Rs. 1,000/- with default stipulation of six months' RI He has also been convicted under section 302 of IPC with fine of Rs. 2,000/- and in default thereof, six months' additional imprisonment. All the sentences are directed to run concurrently.

2. Learned counsel for the appellant on being appointed from Legal Aid submits that it is a case where appellant has been falsely implicated. As per prosecution story, on 24.4.2006, Mohar Singh (PW1) had lodged a report at Police Station Deepnakheda that when he returned to his home from village, then his sister Chhutiya Bai (PW2) informed her that appellant-Suresh was snipping rope used for drying clothes and when Chhutiya Bai asked him not to do so, then he had hit her with a baka on her left ear causing bleeding. When her mother Champa Bai came to save her, then Suresh, who happens to be brother of Chhutiya Bai and son of Champa Bai, had hit Champa Bai with a baka from its sharp side on her left ear and over the pinna resulting in severing of such pinna, as a result of which Champa Bai died. Suresh had run away.

3. It is submitted that there are several lacuna in the prosecution case. It is pointed out that incident took place on 24.4.2006 between 10:00-11:00 am. FIR (Ex. P-1) was recorded at 14:15 hours on the same date but in the spot map (Ex. P-2) three dates have been shown, namely, in column showing time of reaching at the place of incident, date has been shown as 24.6.2006 at 15:00 hours. On left hand corner of spot map there is overwriting and date has been shown as 25.4.2006, whereas ASI, L R Sironiya (P W 9) has put date of 24.3.2006 below his signatures. It is also submitted that as per seizure memo (Ex. P-4) time of seizure has been referred to as 12 noon, whereas FIR itself was recorded at 14:15 hours. It is also pointed out that there is no seizure of said rope/steel wire, tampering of which was bone of contention.

4. It is further submitted that complainant Mohar Singh (P W 1) is a hearsay witness and there are contradictions in the version of Mohar Singh (P W 1) and eye witness Chhutiya Bai (P W 2). No independent witness has been examined though as per Mohar Singh (P W 1), his house is surrounded by house of Rajdhar, Nannu, Ghanshyam and Kamla and they all had reached his house at the time of such incident. Similarly, it is pointed out that Chhutiya Bai (P W 2) has admitted in her cross examination in para 14 that at the time of the incident Ghanshyam Mahara, Rajdhar, Bhagwan Singh, Nirpat and Mulla Bhoi were present and they had seen the incident but prosecution did not examine any of the independent witness.

5. It is submitted that spot map (Ex. P/2) was not prepared as per the version of eye witness Chhutiya Bai (P W 2) but as per version of complainant Mohar Singh (P W 1), who is not an eye witness. It is also submitted that there is no mention of the place where steel wire was tied and there is no recovery of such steel wire from the scene of crime, therefore, chain of events is not complete. It is also submitted that there is no mens rea to frame the appellant and in fact, as per Dr. Arun Jaroliya (D W 1), appellant when was lodged in sub-jail Lateri was examined by said doctor and was found that his mental condition was not proper, as a result of which he was referred to Bhopal. He admitted that if a person is in deep love with his wife and if such spouse dies, then surviving spouse may suffer mental retardedness. Mental condit