Madhya Pradesh High Court
Lucky @ Jaswainder Singh vs The State Of Madhya Pradesh on 2 August, 2019
Author: J.P. Gupta
Bench: J.P.Gupta
1
{Cri.As.No.6929/2018; 7315/2018; 6667/2018 & CRR No.5462/2018 }
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR
(DIVISION BENCH : HON'BLE SHRI JUSTICE J.K.MAHESHWARI &
HON'BLE SHRI JUSTICE J.P.GUPTA)
Criminal Appeal No. 6929/2018
Shivam
Vs.
State of Madhya Pradesh
Shri Manish Datt, learned Senior Advocate with Shri Siddharth
Datt, Advocate for the appellant-accused.
Shri Mahendra Choubey, Public Prosecutor for respondent-State.
Criminal Appeal No. 7315 / 2018
Ravi
Vs.
State of Madhya Pradesh
Shri Vasant Roland Danial, Advocate for the appellant-accused.
Shri Mahendra Choubey, Public Prosecutor for respondent - State.
Criminal Appeal No.6667/2018
Lucky @ Jaswinder Singh
Vs.
State of Madhya Pradesh
Shri Vasant Roland Danial, Advocate for the appellant - accused.
Shri Mahendra Choubey, Public Prosecutor for respondent - State.
Shri Manish Kumar Jain, Advocate for the objector.
AND
Criminal Revision No.5462/2018
Yashu Jain
Vs.
State of Madhya Pradesh
Shri Manish Kumar Jain, Advocate for the applicant.
Shri Mahendra Choubey, Public Prosecutor for respondent - State.
Shri Vasant Roland Danial, Advocate for the accused.
Whether approved for reporting : (Yes / No).
JUDGMENT
(Delivered on 2nd day of August, 2019) Per J.P. Gupta, J :
2{Cri.As.No.6929/2018; 7315/2018; 6667/2018 & CRR No.5462/2018 } This judgment shall govern the disposal of all the aforesaid three criminal appeals filed by the appellants / accused against the con- viction and sentence and the criminal revision filed by the complainant / victim for enhancement of the sentence are arising out a common judg- ment dated 24.8.2018 passed by the Session Judge, Seoni, district Seoni in S. T. No.100122/14 whereby appellant Shivam has been convicted un- der Sections 120-B and 307 of the IPC and sentenced to undergo RI for 5 years with fine of Rs.1000/- under each sections respectively; appellant / accused Ravi has been convicted under Section 120-B of the IPC and sentenced to undergo RI for 5 years with fine of Rs.1000/- and further convicted under Sections 307 r/w 120-B of the IPC and sentenced to un- dergo RI for 5 years with fine of Rs.1000/- separately under each section and appellant / accused Lucky @ Jaswinder Singh has been convicted under Section 120-B of the IPC and sentenced to undergo RI for 5 years with fine of Rs.1000/- and further convicted under Sections 307 r/w 120- B of the IPC and sentenced to undergo RI for 5 years with fine of Rs.1000/- separately under each section with default stipulation as men- tioned in the impugned judgment.
2. In brief, the relevant facts of the case are that on 10.7.2014 at about 10:15 pm complainant / victim Yashu Jain (PW-3) along with his friends Rishu Jain (PW-6), Nikhil Jain (PW-4), Sanu Jain and Lokesh Vadwa had gone to Shrimaya Dhaba located on the Jabalpur- Nagpur Highway in order to celebrate the birthday of Rishu Jain and while they were having their supper, at this point of time, appellants / accused Shivam and Ravi came over there and assaulted Yashu Jain with a knife and caused various injuries on his person and thereafter, they both fled away with co-accused Lucky who was looking forward to them on a mo- torcycle. Injured Yashu Jain (PW-3) was immediately taken to Civil Hos- pital, Seoni where Dehati Nalsi (Ex.P/6) was recorded on the strength of narration of the complainant / victim Yashu Jain who sustained various grievous injuries and later on taken to Nagpur for further treatment and 3 {Cri.As.No.6929/2018; 7315/2018; 6667/2018 & CRR No.5462/2018 } ultimately, crime no.192/14 under Section 307, 34 was registered at Po- lice Station Bandol, District Seoni (MP). After investigation was over, charge sheet was filed against the appellants / accused persons before the court having jurisdiction from where the case was committed to the court of Sessions Judge for trial. On conclusion of trial, learned trial Court convicted and sentenced the appellants / accused as mentioned above.
3. On behalf of appellant / accused Shivam it is submitted that he has been falsely implicated in this case and at the time of incident he was busy in the family function organized at his house and all the wit- nesses are close friends and there are material contradictions and omis- sions. Hence, the conviction and sentenced awarded against him be set
- aside. Further it is submitted that in this case, he has been in jail since 24.8.2018 and during the trial, he has also remained into custody for 6 months and 22 days and the complainant / victim has compounded the offence and further the appellant is not having any criminal antecedent. Considering the aforesaid facts and circumstances of the case, his sen- tence be reduced to the period already undergone by him in jail.
4. On behalf of appellants / accused, Ravi and Lucky it is sub- mitted that they have been falsely implicated in this case. Their names have not been written in the FIR while the FIR was recorded by the vic- tim / injured himself and he knew them very well before the incident. Because there was previous enmity with the victim and witnesses, therefore, they have been implicated. There is no independent witness of the incident and no reliance can be placed on the evidence. There- fore, they be acquitted of the offences.
5. Learned counsel appearing on behalf of the victim / injured in the aforesaid criminal revision submitted that the compromise has been taken place with appellant / accused Shivam and in this regard, an application has also been filed in the revision with permission to with-
4{Cri.As.No.6929/2018; 7315/2018; 6667/2018 & CRR No.5462/2018 } drawal of the revision but the said prayer has been rejected because af- ter admission revision cannot be withdrawn.
6. Learned Public Prosecutor appearing for the respondent / State has stated that the finding of conviction and sentence of the learned trial court is in accordance with law. Hence, aforesaid three ap- peals be dismissed and sentence be enhanced.
7. Having heard the contentions of learned counsel for the parties and on perusal of the record, in the opinion of this court, the ap- peal filed by appellants / accused Ravi and Lucky deserves to be al- lowed. Injured/ victim Yashu Jain (PW-3) lodged Dehati Nalsi (Ex.P/6) in which only the name of appellant / accused Shivam has been men- tioned as an assailant and it is said that along with the accused Shivam there was another person who also assaulted victim. There is an expla- nation of omission of the name of appellants / accused Ravi and Lucky with regard to taking part in the incident. However, during the trial Yashu Jain (PW-3) has stated that appellant / accused Ravi also as- saulted along with accused Shivam and after incident, they ran away with accused Lucky who was waiting on the motorcycle out of the hotel and this statement has been supported by his friend Nikhil Jain (PW-4) and Rishu Jain (PW-6); and Court witness No. 1 Pranay Jain and Court witness no. 5 Abhilash Baghel have not supported the prosecution ver- sion as they have denied about identity of the accused persons as cul- prit. Other witness Ajeet Upadhyay (PW-9) has stated that appellants / accused Ravi and Lucky were assaulting the complainant. He denied the presence of accused Shivam; and Firdosh (CW-3) has only mentioned the name of accused Ravi as an assailant and also denied the fact that other two accused were accompanying accused Ravi.
8. Accordingly, so far as the statement of Firdos (CW-3) and Ajeet Upadhyay (PW-9) are concerned, they have denied the presence and act of the main accused Shivam, therefore, they are not reliable wit- nesses. Other witnesses supporting the statement of victim Yashu Jain 5 {Cri.As.No.6929/2018; 7315/2018; 6667/2018 & CRR No.5462/2018 } (PW-3) are his close friends and they were accompanying him after the incident and took him to the hospital where victim Yashu Jain lodged Dehati Nalsi (Ex.P/6) but their statements have not been recorded on the same day and on next day Police had recorded their statements and the story has been cooked up with regard to implicating accused Ravi and Lucky in the case which is not supported by independent reliable evidence. Therefore, looking to the aforesaid evidence it cannot be held that the prosecution has established its case beyond reasonable doubt against appellants / accused Ravi and Lucky and learned trial court with- out appreciating the evidence in right perspective wrongly held them guilty of the offence of conspiracy with co-accused Shivam with regard to making attempt to commit murder of Yashu Jain. Therefore, their conviction and sentence deserve to be set-aside.
9. So far as accused Shivam is concerned, his name and act are mentioned in the Dehati Nalsi (Ex.P/6) and injured Yashu Jain (PW-3) and eye witnesses who were present at the time of incident viz Rishu Jain (PW-6) and Nikhil Jain (PW-4) have categorically stated that he dealt knife blows so many times on Yashu Jain and the Medical Expert Dr. Satish Sharma (PW-1) has stated that the complainant Yashu Jain sustained three grievous injuries caused by sharp object apart from other injuries. Dr. Satish Sharma has not stated that the injuries were sufficient to cause death in ordinary course of nature. Dr. Ninad Gawade (CW-4) who was treating doctor has stated that none of the injuries was sufficient to cause death in ordinary course of nature.
10. Statements of the medical expert establish that the victim Yashu Jain (PW-3) sustained three grievous injuries caused by sharp ob- ject and the aforesaid injuries caused by appellant / accused Shivam have been established by the statement of injured Yashu Jain (PW-3) and witnesses Rishu Jain (PW-6) and Nikhil Jain (PW-4) and there is nothing on record to discard the evidence of the aforesaid witnesses on the aforesaid point. Undoubtedly, their evidence is dubious with regard 6 {Cri.As.No.6929/2018; 7315/2018; 6667/2018 & CRR No.5462/2018 } to involvement of appellants / accused Ravi and Lucky but the state- ment of the witnesses cannot be discarded completely because they are false on some point. However, in the present case there is no cir- cumstance to justify the conviction of appellant / accused Shivam for making attempt to commit murder of injured Yashu Jain as no such cir- cumstance has been established to infer that the assault was made with intention to cause death of the injured Yashu Jain or the assault was made in such circumstance if Yashu Jain had died the appellant could have been punished for committing murder of Yashu Jain.
11. In view of the aforesaid discussion, the conviction of appel- lant / accused Shivam under Section 307 of the IPC is not sustainable and conspiracy with other accused persons has not been found proved, therefore, his conviction under Section 120-B of the IPC is also not sustainable and he can be convicted only under Section 326 of the IPC.
12. In view of the aforesaid discussion, criminal appeals filed by the appellants / accused Ravi (CriA No.7315/18) and Lucky @ Jaswinder Singh (CriA No.6667/18) are allowed and their conviction un- der Sections 120-B and 307 r/w. 120-B and the sentences thereof are set- aside. Fine amount if any paid be returned to them. They are on bail, their bail bonds stand discharged.
13. So far as appellant / accused Shivam is concerned, his ap- peal is partly allowed and his conviction under Sections 120-B and 307 of the IPC is set-aside and he is convicted under Section 326 of the IPC. So far as the sentence part is concerned, in this case there is no circum- stance to enhance the punishment. Contrary to it, looking to other facts and circumstances of the case, the sentence is required to be reduced. During the trial, the appellant has remained into custody for 6 months and 22 days and now since 24.8.2018 till today he is in jail. Thus, he has completed near about 1 year 5 months and 15 days and the complainant has compounded the offence. This glaring aspect is relevant for deter-
7{Cri.As.No.6929/2018; 7315/2018; 6667/2018 & CRR No.5462/2018 } mination of the sentence. Looking to the nature of the injuries and other circumstance of the case, two years rigorous imprisonment would be sufficient with enhanced fine of Rs.25,000/-. Resultantly, revision filed by the complainant / injured being devoid of merit is dismissed.
14. Accordingly, appellant / accused Shivam is sentenced to un- dergo 2 years RI with fine of Rs.25,000/-. The period already undergone by him shall be set off and the fine amount earlier paid shall also be ad- justed. On deposit of the aforesaid enhanced fine amount the same be paid to the victim / injured Yashu Jain as compensation for sustaining grievous injuries. In default of payment of enhanced fine amount, the appellant will have to suffer further rigorous imprisonment for six months.
15. On realization of the fine amount, injured Yashu Jain be informed about the entitlement of the aforesaid compensation.
16. Record of the trial Court be sent back immediately to the con- cerned court below along with a copy of this order for its compliance and necessary action.
(J.K.MAHESHWARI) (J.P.GUPTA)
JUDGE JUDGE
JP/-
Digitally signed by JITENDRA
KUMAR PAROUHA
Date: 2019.08.08 17:00:48 +05'30'