JUDGMENT

1. This criminal appeal has been filed by the appellant being aggrieved by the conviction and sentence dated 29.9.2016 passed by Sessions Judge, Manda (M.P.) in S.T. No.42/2016, whereby the appellant has been found guilty for the offence punishable under Section 304-Part I of the I.P.C. and sentenced to undergo Rigorous Imprisonment for ten years with fine of Rs.1,000/- with default stipulation.

2. As per prosecution, appellant went to the house of deceased at 10.00 P.M. in the night of 29.11.2015, where some altercation took place between the appellant and deceased Chandan Singh and the appellant then assaulted Chandan Singh with a wooden stool (peedha), as a result of which Chandan Singh became unconscious and died while being taken to the hospital. This incident was witnessed by Sunaina (P.W.-1), wife of deceased, who then informed Bhadde Singh (P.W.-3) on phone. Bhadde Singh thereafter went to the house of deceased and found him lying unconscious. One Shivlal lodged the complaint, on the basis of which, Dehati Nalishi (Ex. P-14) was recorded. The autopsy of the body of deceased was conducted by Dr. D.K. Markam (P.W-11) on 30.11.2015, who found 9 injuries caused by hard and blunt object and one bone fracture on the right side of the temporal region. According to the doctor, the death was homicidal and occurred within 24 hours of the postmortem. The doctor also examined the accused had found two injuries, both simple in nature caused by hard and blunt object. The accused was arrested and on his memorandum, a blood stained stool (peedha) was recovered from the open courtyard of deceased’s house.

3. After investigation, the charge sheet was filed. The trial Court framed charges against the accused/appellant as aforestated. The accused/appellant abjured the guilt. It was pleaded that it was Bhadde Singh, who along with others assaulted the deceased. It was stated that Bhadde Singh has beaten him and locked him inside the room.

4. The trial Court relying on the testimony of Sunaina (P.W.-1), Krishna (P.W.-8) and Ramkalibai (P.W.-9) has convicted and sentenced the appellant as aforestated.

5. I have heard the learned counsel for the parties and perused the record.

6. It is an admitted fact that accused and deceased are near relatives. Accused is the maternal uncle (mama) of the deceased. P.W.-1 Sunaina, though initially claimed to be the eye witness of the incident has admitted in her cross-examination that she was told about incident by Ramkali (P.W.-9), who had gone out first for washing the utensils, while she was inside the house serving the food to other persons present there. She has further admitted that it was late in the night and quite dark outside. She has further stated that at that time she also saw Bhadde, who caught hold of accused and locked him in the room.

7. Whereas Ramkali, who was examined as P.W.-9 has stated that she was informed by P.W.-1 Sunaina that the accused has beaten up the deceased and when she came out of the house, she found that deceased lying unconscious and the accused was also lying there. Thereafter, Chhotelal was locked up in the room by Bhadde. The aforestated testimony makes it clear that neither Sunaina (P.W.-1) nor Ramkali (P.W.-9) is the eye witness to the incident. Further, P.W.-8 Krishna Maravi, who is six years old is also not an eye witness as she was informed about the incident by her nani.

8. P.W.-1 Saunaina in her statement has also admitted that her deceased husband and the accused were sitting outside in the open courtyard and consuming alcohol. Bhadde (P.W.-3) has stated that on the date of incident at around 8.30 P.M., P.W.-1 Sunaina came to his house to inform that the accused had done marpeet with her husband. He has also admitted that Parwatiyabai, mother of the deceased has made allegations against him that he has murdered her son and falsely implicated the accused. P.W.-7 Shivlal, who lodge the Dehati Nalishi and also the brother of the deceased is also not an eye witn