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
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
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
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.
New Delhi, March 05, 2009.