JUDGMENT

1. This criminal appeal under section 374 (2) of the Code of Criminal Procedure has been filed by the appellant Lokman against the judgment of conviction and order of sentence dated 19.5.1998 passed by VIIth Additional Sessions Judge, Jabalpur in Sessions Trial No. 604/95 whereby appellant Lokman has been convicted for commission of offence punishable under section 307 of IPC and has been sentenced to undergo rigorous imprisonment for a period of 5 years.

2. The prosecution story in short is that on 28.4.1995 at about 9:35 a.m. Santosh Yadav (PW-4) resident of village Gram Sundarpur P.S.Panagar lodged FIR stating that he is a milkman and sells milk. Today he by his bicycle had come to sell milk in Chandan Colony Manegoan. After giving milk in Chandan Colony with a view to purchase Khalli Chunni from Munna Khalli Chunni’s shop he came to Sai Pradhan. After parking his bicycle in front of the shop of Munna, he was standing there. At around 9:05 a.m. someone from back side put a hand on his left shoulder. At this, when he looked back, he found that middle son-in-law of his uncle (phoopha) Phoolchand, gave a knife blow on the right side of his back and fled away after thrusting knife in his back. His back started to bleed. He raised alarm and sat down there. Shop Keeper Munna and one Halke who were standing there had seen accused inflicting him knife blow. Munna asked who had given the blow then he told him that it was his uncle’s son-in-law.

3. Ramkumar Patel, who was also standing there took out knife from his back and tied the wound with a towel and brought him to police station along with knife. He further stated that in the evening of 28.4.1995 Barat had come to Phoolchand Yadav’s house and there his Raipurawala son-in-law was creating ruckus after consuming liquor. At this, he and others had scolded him. Over that issue, he gave a knife blow on his back with an intention to kill him. An FIR was registered at Crime No.243/95 of P.S. Ranjhi for commission of offence under section 307 IPC by ASI R.S. Singh (PW-1) on the basis of narration given by Santosh (PW-4). R.S. Singh (PW-1) sent him to Victoria Hospital for medical examination. He seized blood stained knife from witness Ramkumar and prepared seizure memo Ex.P/5. He prepared spot map Ex.P/4. He seized blood stained clothes of injured Santosh and prepared seizure memo Ex.P/6. In Victoria Hospital Dr. M.M. Agrawal (PW-2) examined injured Santosh and gave MLC report Ex.P/3. He referred him to Medical College for further treatment. In Medical College, Dr. A.K. Tondar (PW-5) examined Santosh and found an incised wound over right side of his chest and found this injury dangerous to life in the ordinary course of nature. He gave his report Ex.P/10. Next day i.e. on 29.4.1995 Purushottam Singh (PW-6) Naib Tehsildar recorded dying declaration Ex.P/10 of Santosh. After investigation, police Ranjhi filed a charge sheet against the present appellant Lokman before the learned Judicial Magistrate, First Class, who in its turn, committed the case to the Court of Session.

4. Learned Additional Sessions Judge, Jabalpur framed charges against the accused for commission of offence under section 307 of IPC. Accused abjured his guilt and claimed to be tried.

5. In order to prove its case, the prosecution has examined seven prosecution witnesses namely R.S. Singh (PW-1), Dr. M.M.Agrawal (PW-2), Mahendra Singh Sahu (PW-3), Santosh (PW-4), Dr. A.K. Tondar (PW-5), Purushottam Kumar (PW-6) and M.M. Khan (PW-7) whereas accused person has not examined any witness in support of his case.

6 . Learned Additional Sessions Judge after recording the evidence of prosecution witness and hearing the parties found the appellant/accused Lokman guilty for commission of offence under section 307 of IPC and sentenced him as aforementioned. Being aggrieved by the conviction and sentence imposed upon the appellant/accused, this appeal has been filed.

7. Learned counsel for the appellant/accused has assailed