The conduct of the accused in running away from the spot with the weapon of offence, which was found to be stained with human blood, can be considered as an incriminating circumstance to establish guilt in a criminal case.

JUDGMENT

G.S. Ahluwalia, J. - This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the Judgment and Sentence dated 8-5-2012 passed by IVth Additional Sessions Judge, Morena in S.T. No.309/2010 by which the Appellant has been convicted 302 of IPC and has been sentenced to undergo the Life Imprisonment and a fine of Rs.5,000/-, in default 6 months R.I.

2. It is not out of place to mention here that the police after completing the investigation had filed charge sheet for offence under Sections 307, 326 of IPC and charges were also framed for offence under Section 307 of IPC. However, during the pendency of the Trial, the deceased Jagman Singh died on 8-12-2010 and accordingly, the charge was altered and by order fated 18-1-2011, charge under Section 302 of IPC was framed.

3. Further, on 14-7-2022, a statement was made by Shri Ashish Saraswat, Counsel for the complainant, that the Appellant Bhoop Singh has jumped parole and has not surrendered. Further, an information has also been received from the Central Jail, Gwalior, that the Appellant is not in jail. Now the only question for consideration is that whether the Appeal can be heard on merits or not?

4. The Supreme Court in the case of Dhananjay Rai @ Guddu Rai by Judgment dated 14/7/2022 passed in Cr.A. No.803 of 2017 has held as under :

7. We may note here that the High Court relied upon its earlier decision in the case of Daya Shankar Singh3 which was based on Rule 8 of Chapter XII of the Patna High Court Rules which predicates that no appeal against conviction shall be heard for admission unless the accused has surrendered to the order of the Court below convicting him to a sentence of imprisonment except in a case where the appellant has been released on bail by the trial court after convicting him. In the case in hand, the appeal was already admitted on 29th October 2009. Therefore, the said rule, which applies to the pre-admission stage, was not applicable in this case.

8. The anguish expressed by the Division Bench about the brazen action of the appellant of absconding and defeating the administration of justice can be well understood. However, that is no ground to dismiss an appeal against conviction, which was already admitted for final hearing, for non-prosecution without adverting to merits. Therefore, the impugned judgment will have to be set aside and the appeal will have to be remanded to the High Court for consideration on merits.

Accordingly, this Appeal is heard on merits, although the Appellant is absconding after having jumped parole.

5. The necessary facts for disposal of present appeal in short are that on 22-5-2010 at about 21:55, Dhruv Singh, son of Jagman Singh lodged a Dehati Nalishi in the J.A. Hospital, Gwalior, alleging therein that his father Jagman Singh had left his house for going to a market. Thereafter, he along with his mother Ganga reached in front of Clinic of Bengali Doctor on A.B. road. He heard the screams of his father which were coming from the side of the house of Arvind and Raghuvir. He and his mother rushed towards the place of incident. He saw that his maternal uncle Bhoop Singh was running away along with an axe in his hand. He reached near to his father where Sonu Rathore was already there. His father was bleeding from his head, near nose and eyes. Sonu told him that the Appellant had assaulted his father by an axe and has run away towards Gangarampura. There was an enmity between the Appellant and his father on the question of land, therefore, the Appellant has assaulted his father, with an intention to kill him. The police had also reached on the spot and accordingly, he has brought his father to J.A. Hospital for treatment.

6. On the basis of the Dehati Nalishi, police registered the F.I.R. The blood stained and plain earth were seized from the spot. The Appellant was arrested and blood stained axe was seized. The medical documents and blood stained clothes of injured Jagman Singh were also seized. The statements of