Madhya Pradesh High Court
Kanha@Mahesh vs The State Of Madhya Pradesh on 24 August, 2017
1
CRA No. 268/2016
24.08.2017
Shri Anil Ojha, learned counsel for the appellant.
Shri Abhishek Soni, learned Public Prosecutor.
Shri Bhagwan Singh, learned counsel for the
complainant/Injured Sonu (P.W.7).
With consent, heard finally.
JUDGMENT
This appeal preferred u/s. 374 of the Cr.P.C. is directed against judgment and order dated 29.1.2016 passed by learned First Additional Sessions Judge, Dewas in S.T. No.320/2013, whereby and whereunder, appellant - Kanha @ Mahesh has been found guilty u/s. 307 of the IPC and has been sentenced to undergo 5 years' RI and to pay a fine of Rs.1,000/- with usual default stipulation.
2. The prosecution story, briefly stated, is that on 13.7.2013, Sonu (P.W.7), Deepak (P.W.9), Sanju (P.W.2) and Golu (P.W.1) at around 10.30 am., were having tea infront of R.K. Hotel, Dewas. In the vicinity, infront of house of Mukesh Pahalwan, two persons were quarrelling with each other. Sonu (P.W.7) went to the spot and tried to separate them. During the incident, the appellant assaulted Sonu (P.W.7) with knife on his back. The other person also slapped Sonu (P.W.7). As Sonu (P.W.7) was seriously bleeding, therefore, he was taken to M.G.H. Hospital and 2 Dehati Nalsi Ex. P/1 in this regard was lodged by Golu (P.W.1) at the hospital itself.
3. After investigation, a charge-sheet was filed. The learned Sessions Judge charged the appellant for offences u/s. 323/34 and 307 of the IPC. Apart this, co-accused Prakash and Rakesh were also charged for offences u/s. 323/34 and 307 of the IPC. The learned trial Judge by the impugned judgment acquitted Prakash and Rakesh, however, the appellant was convicted and sentenced for offence u/s. 307 of the IPC and sentenced, as stated hereinabove.
4. The conviction and sentence recorded against the appellant has been challenged on the ground that the learned trial has not properly appreciated the evidence which was adduced by the prosecution and that, serious anomalies, omissions and contradictions present in the prosecution evidence were overlooked. It is submitted that the conviction of appellant is unsustainable.
5. Per contra, the learned Public Prosecutor supported the impugned judgment and has submitted that the appeal is liable to be dismissed.
6. Heard the learned counsel for the parties and perused the record.
7. On due consideration of the testimony of injured witness - Sonu (P.W.7), which stands corroborated with the testimony of Golu (P.W.1) and Sanju (P.W.2), it is well established that on the date of alleged incident i.e. 3 13.7.2013, at around 10.30 am., complainant - Sonu (P.W.7) was assaulted by the appellant by a knife thereby causing injury on the back. The evidence in this regard stands corroborated by the testimony of the Doctor who has examined Sonu (P.W.7) soon after the incident in the hospital. Therefore, on re-appreciation of the evidence led by the prosecution, the conviction recorded against the appellant is found to be in accordance with law and evidence, hence, no interference is required to be made as regards conviction recorded against the appellant.
8. Learned counsel for the appellant as well as learned counsel for injured Sonu (P.W.7) submitted that during pendency of this appeal, a compromise was entered into between Sonu (P.W.7) and the appellant. The compromise petition submitted in this regard has been duly verified on 31.1.2017 by the Principal Registrar of this Bench, wherein it is recorded that the complainant has entered into the compromise voluntarily and that, the parties have decided to settle their dispute amicably.
9. Though, offence u/s. 307 is not compoundable, but it is well settled by a number of decisions of the apex Court (see : Unnikrishnan @ Unnikuttan vs. State of Kerala, SLP (Cr.) No.18630/2016 decided on 1.3.2017) that the factum of compromise can be taken into consideration by the Court for taking lenient view as regards sentence.
410. In the instant case, the appellant has been sentenced to undergo 5 years' RI and to pay a fine of Rs.1,000/-. The appellant is in custody in this case w.e.f. 21.1.2016 till date and thus, has completed more than 20 months in jail, therefore, the sentence can be reduced to the period already undergone and a fine of Rs.1,000, that has been imposed against the appellant by the learned trial Court.
11. Accordingly, this appeal is partly allowed. The conviction recorded against the appellant by the learned trial Court is hereby maintained, however, the sentence is reduced to the period already undergone by the appellant. If not required in any other case, the appellant shall be forthwith set at liberty.
12. With the aforesaid, this appeal stands disposed of to the extent indicated above.
( VED PRAKASH SHARMA ) JUDGE Alok/-