Jitu @ Jitender Vs. State of M.P.
EmailAppeal: Criminal Appeal No. 679 of 2006
[From the Judgment and Order dated 07.07.2005 of the High Court of MP Criminal Appeal No. 927 of 1999]
[From the Judgment and Order dated 07.07.2005 of the High Court of MP Criminal Appeal No. 927 of 1999]
Petitioner: Jitu @ Jitender
Respondent: State of M.P.
Apeal: Criminal Appeal No. 679 of 2006
[From the Judgment and Order dated 07.07.2005 of the High Court of MP Criminal Appeal No. 927 of 1999]
[From the Judgment and Order dated 07.07.2005 of the High Court of MP Criminal Appeal No. 927 of 1999]
Judges: Dr. Arijit Pasayat & Asok Kumar Ganguly, JJ.
Date of Judgment: Mar 05, 2009
Appearances:
Appearances
Mr. Triloki Nath Razdan, Ms. Smriti Razdan, Advocates for the Petitioner.
Mr. Sidhartha Dave, Ms. Jemtiben AO, Ms. Vibha Datta Makhija, Advocates for the Respondent.
Mr. Triloki Nath Razdan, Ms. Smriti Razdan, Advocates for the Petitioner.
Mr. Sidhartha Dave, Ms. Jemtiben AO, Ms. Vibha Datta Makhija, Advocates for the Respondent.
Head Note:
Criminal Laws
Penal Code, 1860
Sections 302/34, 324, 326 – Murder – Three persons sustained injuries – Trial court convicting ‘J’ under Section 302/34, acquitting ‘D’ of the charges – Accused ‘R’ convicted under Section 324/34 – Stand before the High Court that as the place of occurrence had been changed and an entirely new version is stated by the prosecution, it’s case was not reliable – Not accepted by High Court. Held PW-8 ‘R’ on whose evidence trial court and the High Court placed reliance had categorically stated that it was accused ‘R’ who had attacked the deceased with a sword. As per PW-9’s evidence appellant ‘J’ had given a blow on the belly however doctor did not find any injury on the belly. Hence appellant’s conviction cannot be upheld for offence punishable under Section 302. It is accordingly altered to Section 326.
Penal Code, 1860
Sections 302/34, 324, 326 – Murder – Three persons sustained injuries – Trial court convicting ‘J’ under Section 302/34, acquitting ‘D’ of the charges – Accused ‘R’ convicted under Section 324/34 – Stand before the High Court that as the place of occurrence had been changed and an entirely new version is stated by the prosecution, it’s case was not reliable – Not accepted by High Court. Held PW-8 ‘R’ on whose evidence trial court and the High Court placed reliance had categorically stated that it was accused ‘R’ who had attacked the deceased with a sword. As per PW-9’s evidence appellant ‘J’ had given a blow on the belly however doctor did not find any injury on the belly. Hence appellant’s conviction cannot be upheld for offence punishable under Section 302. It is accordingly altered to Section 326.
JUDGEMENT:
Dr. Arijit Pasayat, J.
1. Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court, Indore Bench upholding the conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code, 1860 (in shot ‘IPC’). Four persons faced trial for allegedly committing murder of one Umesh (hereinafter referred to as the ‘deceased’). Accused-Mukesh died during the pendency of the trial, while another accused Pappu@Deepak was acquitted by the trial court.
2. It is stated that on 17.11.1995, the occurrence took place in which due to the assaults made by the accused persons Umesh breathed his last, while three of the persons Bhagirath PW-8, Bherulal PW-9 and Yogesh PW-10 sustained injuries. On the basis of the information lodged by PW-8 law was set into motion and investigation was conducted. On completion of investigation, charge sheet was filed. Reliance was placed on the evidence of PWs 8, 9 and 10 by the trial court to record, conviction, so far as accused Rakesh and present appellant-Jitu @ Jitender are concerned.
3. It is to be noted that the accused persons were charged for offences punishable under Section 302 read with Section 34 and Section 324 read with Section 34 IPC. As noted above, accused-Mukesh died during the pendency of the trial and accused-Deepak was acquitted of the charges.
4. It is interesting to note that the accused Rakesh was convicted only for offence punishable under Section 324 IPC. There is no discussion as to why he was acquitted of charges under Section 302 read with Section 34 IPC. Be that as it may, accused Rakesh was found guilty of offence punishable under Section 324 IPC and the present appellant was held guilty of offence punishable under Section 302 IPC.
5. The appellant’s appeal before the High Court was dismissed. Primary stand before the High Court was that the place of occurrence has been changed, and entirely different version as to how the incident took place was given and, therefore, the prosecution version should not have been accepted. The High Court found no substance in the appeal and, as noted above, dismissed it.
6. The stand taken before the High Court is reiterated in the present appeal by the learned counsel for the appellant. Learned counsel for the respondent-State supported the judgment of the High Court.
7. It is to be noted that PW-8, the informant on whose evidence trial court and the High Court placed reliance had categorically stated that it was accused Rakesh who had attacked the deceased with a sword, and he was not sure as to how the other two accused persons including the present appellant attacked the deceased. The evidence of PW-9 shows that the accused Jitu@Jitender had given a blow on the belly. The Doctor found no injury on the belly, but same was on the back side. In this scenario, it would be difficult to uphold the conviction of the appellant for offence punishable under Section 302 IPC. Accordingly, the conviction of the appellant is altered to Section 326 IPC. We find it strange that though the evidence of PW-8 was accepted, no conviction was recorded so far as the present appellant is concerned for the assaults made by him on Bhagirath PW-8. There are several disturbing factors. Strongly, the State has not questioned the conviction of Rakesh for offence punishable under Section 324 IPC and non recording of any conviction insofar as the present appellant is concerned in respect of injuries inflicted by him on Bhagirath PW-8
8. Considering the nature of injuries, the conviction of the present appellant is altered to one under Section 326 IPC and custodial sentence of seven years is imposed upon him. It is stated that the appellant has already undergone the sentence of more than seven years. If that be so, he shall be released from custody forthwith unless required to be in custody in connection with any other case.
9. The appeal is allowed to the aforesaid extent.
1. Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court, Indore Bench upholding the conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code, 1860 (in shot ‘IPC’). Four persons faced trial for allegedly committing murder of one Umesh (hereinafter referred to as the ‘deceased’). Accused-Mukesh died during the pendency of the trial, while another accused Pappu@Deepak was acquitted by the trial court.
2. It is stated that on 17.11.1995, the occurrence took place in which due to the assaults made by the accused persons Umesh breathed his last, while three of the persons Bhagirath PW-8, Bherulal PW-9 and Yogesh PW-10 sustained injuries. On the basis of the information lodged by PW-8 law was set into motion and investigation was conducted. On completion of investigation, charge sheet was filed. Reliance was placed on the evidence of PWs 8, 9 and 10 by the trial court to record, conviction, so far as accused Rakesh and present appellant-Jitu @ Jitender are concerned.
3. It is to be noted that the accused persons were charged for offences punishable under Section 302 read with Section 34 and Section 324 read with Section 34 IPC. As noted above, accused-Mukesh died during the pendency of the trial and accused-Deepak was acquitted of the charges.
4. It is interesting to note that the accused Rakesh was convicted only for offence punishable under Section 324 IPC. There is no discussion as to why he was acquitted of charges under Section 302 read with Section 34 IPC. Be that as it may, accused Rakesh was found guilty of offence punishable under Section 324 IPC and the present appellant was held guilty of offence punishable under Section 302 IPC.
5. The appellant’s appeal before the High Court was dismissed. Primary stand before the High Court was that the place of occurrence has been changed, and entirely different version as to how the incident took place was given and, therefore, the prosecution version should not have been accepted. The High Court found no substance in the appeal and, as noted above, dismissed it.
6. The stand taken before the High Court is reiterated in the present appeal by the learned counsel for the appellant. Learned counsel for the respondent-State supported the judgment of the High Court.
7. It is to be noted that PW-8, the informant on whose evidence trial court and the High Court placed reliance had categorically stated that it was accused Rakesh who had attacked the deceased with a sword, and he was not sure as to how the other two accused persons including the present appellant attacked the deceased. The evidence of PW-9 shows that the accused Jitu@Jitender had given a blow on the belly. The Doctor found no injury on the belly, but same was on the back side. In this scenario, it would be difficult to uphold the conviction of the appellant for offence punishable under Section 302 IPC. Accordingly, the conviction of the appellant is altered to Section 326 IPC. We find it strange that though the evidence of PW-8 was accepted, no conviction was recorded so far as the present appellant is concerned for the assaults made by him on Bhagirath PW-8. There are several disturbing factors. Strongly, the State has not questioned the conviction of Rakesh for offence punishable under Section 324 IPC and non recording of any conviction insofar as the present appellant is concerned in respect of injuries inflicted by him on Bhagirath PW-8
8. Considering the nature of injuries, the conviction of the present appellant is altered to one under Section 326 IPC and custodial sentence of seven years is imposed upon him. It is stated that the appellant has already undergone the sentence of more than seven years. If that be so, he shall be released from custody forthwith unless required to be in custody in connection with any other case.
9. The appeal is allowed to the aforesaid extent.
