Judgment

06-Aug-2021 Per G.S. Ahluwalia J.

1. This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 16-11-2005 passed by VIIth Additional Sessions Judge (Fast Track), Gohad, Distt. Bhind in Sessions Trial No. 115/2004 by which the appellant-accused has been convicted under Section 302 of I.P.C. and has been sentenced to undergo Life Imprisonment and a fine of Rs. 100/- with default imprisonment of 1 month R.I.

2. The prosecution story in short is that on 17-3-2004, the S.H.O., Barohi, received a wireless message that one person in village Lavan has gone lunatic and has assaulted three persons by Spear and is roaming around. Accordingly, S.H.O., went to village Lavan. The injured Lakhmi Singh (deceased) was taken to District Hospital, Bhind. The appellant-accused was arrested by the police in a nearby field. One broken weapon like Spear was seized from the possession of the appellant-accused. Spot Map was prepared. Dehati Nalishi was lodged by Mool Singh in Distt. Hospital Bhind, to the effect that at about 13:00, he was in his house. He heard the noise, that the appellant-accused has assaulted Dinesh by Spear and is searching for the complainant, therefore, he ran away from his house and saw that the appellant-accused gave a Spear blow to Dinesh. Thereafter, he went running and caused injury to Lakhmi Singh. Thereafter he assaulted Dinesh on his head and leg. As the appellant-accused was looking for other members of the family, therefore, the complainant ran away. At that time the police also reached there. The injured Lakhmi was taken to hospital with the assistance of police. Dinesh and Deepak were taken to hospital by the other villagers. The police went in search of appellant-accused. However, Lakhmi Singh expired on the way. On a dispute on the question of drain, the appellant-accused has committed the offence.

3. The statements of the witnesses were recorded. The seized Spear was sent for F.S.L. report. After completing the investigation, the police filed charge sheet for offence under Sections 302,307 of I.P.C.

4. The Trial Court by order dated 14-7-2004, framed charges under Sections 302, 307 I.P.C.(on two counts)

5. The appellant-accused abjured his guilt and pleaded not guilty. 6. It appears that a prayer was made under Section 328 of Cr.P.C. for stay of the trial on the ground that the appellant-accused is a mentally retarded person and is not in a position to make his defence.

However, by order dated 12-7-2004, the said prayer was rejected.

7. The Prosecution in order to prove its case, examined Dr. C.R. Raje (P.W.1), Lalji Singh (P.W.2), Nirpat Singh Kuswah (P.W.3), Deepak @ Deep Singh (P.W.4), Ranveer Singh (P.W.5), Mool Singh (P.W.6), Surendra Singh (P.W.7), Shoukin Singh (P.W.8), Randhir Singh (P.W.9), Mohan Singh (P.W.10), Chetna Sharma (P.W.11), Amresh Bohare (P.W.12), and Dinesh Singh (P.W.13). The appellant- accused did not examine any witness in his defence.

8. The Trial Court after considering the evidence, convicted the appellant-accused for offence under Section 302 of I.P.C. and acquitted him for offence under Section 307 of I.P.C. (On two counts) and awarded Life Imprisonment and a fine of Rs. 100, with default imprisonment of 1 month R.I.

9. Challenging the judgment and sentence passed by the Court below, it is submitted by the Counsel for the appellant, that the injured eye witnesses have turned hostile. The other eye-witnesses are not reliable witnesses, as according to them, a crop of mustard was standing in the field and the height of the crop was above waist and below the chest. It is further submitted that the witnesses are alleged to have witnessed the incident from the distance of 100-150 meters and with standing crop it was not possible to see the incident. It is further submitted that the appellant-accused was arrested on the spot, but no blood was found on the spear. Further, no blood stained cloths of the appellant-accused were seized.

10. Per con