Jitu @ Jitender vs State Of M.P

JITU @ JITENDER ... Appellant(s)

Versus

STATE OF M.P. ... Respondent(s)

JUDGMENT

Dr.ARIJIT PASAYAT,J.

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 short '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.

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 -2-

Bhagirath PW8, Bherulal PW9 and Yogesh PW10 sustained injuries. On the basis

of the information lodged by PW8 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.

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.

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.

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

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accepted. The High Court found no substance in the appeal and, as noted above,

dismissed it.

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.

It is to be noted that PW8, 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 PW9 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 PW8 was accepted, no conviction was recorded so far as the present appellant is

concerned for the assaults made by him on Bhagirath PW8. There are several

disturbing factors. Strongly, the State has not questioned the conviction of Rakesh

for offence punishable under Section 324 IPC and non

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recording of any conviction insofar as the present appellant is concerned in respect of

injuries inflicted by him on Bhagirath PW8.

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.

The appeal is allowed to the aforesaid extent.

...................J. (Dr. ARIJIT PASAYAT)

....................J. ((ASOK KUMAR GANGULY)

New Delhi, March 05, 2009.