JUDGMENT

[1] This criminal appeal is preferred under Section 374 of the Cr.P.C. against the impugned judgment of conviction and order of sentence dated 22.10.2011 passed in Sessions Trial No.141/2011 by Third Additional Sessions Judge, Dhar by which the appellant herein has been convicted for an offence under Section 449 and 302 of the IPC and sentenced to undergo imprisonment for life and further sentenced to pay a fine of ₹ 1,000/- and to further undergo simple imprisonment for three months for want of failure to pay the fine amount.

The facts of the case in short are as under:

[2] On 07.02.2011 the complainant Archana aged about 16 years along with her brother Sunil aged about 8 years were at the house with their father Gajanand ( since the deceased). At near about 07:30 P.M, the brother of Gajanand i.e. Sukhdev (appellant) who resides in the neighbouring house came with a stick (Latth) in his hand and told Gajanand (deceased) that “he gives loans to others and doesn’t give them to him, therefore, today, he would kill him” and appellant gave a blow-by stick on the deceased’s head and a second below on his leg. The complainant’s father fell, and he again gave a blow on his waist. Her father started bleeding. Complainant-Archana (PW-1) and her brother Sunil tried to save her father then appellant Sukhdev also rushed to assault them. Then, she and her brother went to house of her Mousi- Kanchanbai (PW-6) and told her about the incident and also informed to her mother- Gangabai (WP-3). Due to injuries caused by the appellant, complainant’s father (Gajanand)

succumbed to his injuries.

[3] On the next day 08.02.2011 at 13:15 informant Ku. Archana (PW-1) came to Police station Dhamnod, District Dhar with her mother and informed the incident mentioned above. On those facts, an FIR was lodged at Crime No.48/2011 for the offence punishable under Sections 302 and 452 of IPC (Ex.P-1) against the appellant. During the investigation, Spot map (Ex-P- 2) and Naksha Panchayatanama of dead body (EX-P-3) were drawn by calling witnesses. The dead body of Ganjanand (deceased) was sent for autopsy which was done by Dr. Ashok Saxena (PW-9) and he opined that the cause of death was hemorrhage and shock due to injuries caused all over the body and excessive bleeding. During the investigation, the appellant was arrested vide (Ex.P-4) and on his disclosure statement (Ex.P- 5), a bamboo stick was recovered from his house as per the seizure memo (ExP-6). The police recorded the statement of witnesses and thereafter sent the seized article to FSL for chemical examination. FSL Report (Ex.P-11) was received in which human blood was found in the bamboo stick. Upon completion of the investigation, a charge sheet was filed before the competent Court from where the trial was committed to the Sessions Court, District Dhar, after that the case was made over to III Additional Sessions Judge, District Dhar for disposal according to law.

[4] Trial Court framed the charges under Sections 302 and 449 I.P.C. against the appellant which he denied and pleaded for the trial.

[5] The prosecution has examined 9 witnesses and exhibited 12 documents to prove its case. The appellant has not examined any witnesses in his defence but exhibited 4 documents.

[6] After evaluating the evidence that came on record, the learned Additional Sessions Judge vide judgment dated 22.10.2011 convicted the appellant for the offence punishable under Section 302 and 449 of I.P.C. but sentenced only under section 302 of IPC as mentioned above.

[7] Learned counsel for the appellant submits that the evidence reveals that there was a dispute with respect to property between the appellant and the deceased, as a result of which he has been falsely implicated. Learned counsel further submits that the conviction is based on the testimony of a child witness in which there are various contradictions. It is further submitted by the learned counsel that Prosecution witness no. 4, who is a seizure witness being