J U D G M E N T

(Jabalpur, Dated : 18 /08/2021)

Per: Sunita Yadav, J :

1. Feeling aggrieved and dissatisfied by the impugned judgement and order dated 21.04.2010 passed by the Sessions Judge, Betul in Sessions Trial No.263/2009 by which the appellant has been convicted under Section 302 of IPC and sentenced to undergo Life Imprisonment and a fine of Rs.500/- failing to pay the fine to undergo additional six months RI and also convicted under Section 323 of IPC and sentenced to undergo six months RI, this appeal has been filed.

2. The prosecution case in brief is that on 16.09.2009 at about 6:00 pm in village Deshwadi appellant, who was in a drunken state, arrived at the house of complainant Jugni Bai and and stated that he wanted the complainant Jugni to be his wife. When complainant and her husband Kale opposed, the appellant started abusing them. After that the appellant took a stick lying on the ground and hit Kale on his head and legs. The appellant also hit the complainant with the stick on her hand and head when she was trying to save her husband. The complainant along with injured Kale went to the Police Station Shahpur, District Betul and lodged the FIR Exhibit P-5. Injured Jugni Bai and her husband Kale were taken to PHC Shahpura for medical examination. Kale was referred to the District Hospital Betul where he died during his treatment. A Merg No.55/09 was registered under Section 302 of IPC. During the investigation the stick used in crime was seized at the instance of the accused as per Exhibit P-2. On completion of the investigation charge-sheet under Section 323, 302 of IPC was filed before JMFC, Betul. The case was committed to the Sessions/trial court.

3. The trial court framed charges under Section 323, 294, 302 of IPC against the appellant who denied his guilt and pleaded for trial. The learned trial court after trial of the case and on the basis of evidence and material came on record found the accused guilty of offence, as mentioned above and sentenced him as per the impugned judgment.

4. PW-10 Dr. IPS Popli, who was produced to establish the cause of death of deceased Kale has proved the postmortem report Exhibit P-6 and testified that he had found a lacerated wound on the head of the body of the deceased. The size of the wound was 10 X 1 inches. He further stated that a subdural haematoma and fracture of skull along with laceration in brain was present corresponding to the above mentioned injuries. He opined that the cause of death was shock due to head injury and the death was homicidal. His testimony remained unchallenged. In his cross-examination he denied that the injury might have been caused because of a fall.

5. The statement and opinion of PW-10 IPS Popli proves that the death of Kale was homicidal and the cause of death was shock due to head injury. Now it is to be considered whether it was the appellant who had caused such injury to the deceased ?

6. PW-1 Shyam Ji, PW-3 Babulal, PW-7 Jugni Bai, PW-8 Radha Bai, and PW-9 Ku. Deepa, are the eye witnesses as per the prosecution story.

7. PW-7 Jugni Bai, who is an injured eye witness, as well as the complainant in this case has deposed that at the time of the incident she and her husband Kale were at their home. At that moment the accused Jangli arrived at the premise and assaulted her husband with a stick on his head and also threw a stone at him. The accused hit this witness on her hand as well as head with the same stick while she was trying to defend her husband. Her husband Kale lost consciousness and was not able to speak after the incident.

8. PW-7 Jugni Bai was declared as hostile by the prosecution on the limited point as in her examination-in chief she did not mention that before the incident the accused stated that he wanted her as his wife instead she denied that there was any women related issue between her husband and the deceased. However, after being declared as hostile, she accepted that at the time of the incident accused Jangli had told her