Deepu @ Deepak vs The State Of Madhya Pradesh
2022 Latest Caselaw 2332 MP

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                      IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR

                                                    BEFORE
                                      HON'BLE SHRI JUSTICE VIVEK AGARWAL

                                          ON THE 23rd OF FEBRUARY, 2022

                                        CRIMINAL APPEAL No. 1317 of 2010

                       Between:-
                       DEEPU @ DEEPAK S/O RAJ KUMAR RAJAK ,
                       AGED ABOUT 20 YEARS,
                       BHAIRON NAGAR, PS. GARHA,
                       DISTT. JABALPUR (MADHYA PRADESH)
                                                                            .....APPELLANT

                       (BY SHRI JITENDRA SHRIVASTAVA, ADVOCATE (AMICUS CURIAE)


                       AND

                       THE STATE OF MADHYA PRADESH
                       TH. PS. GARHA, DISTT. JABALPUR. (MADHYA PRADESH)
                                                                          .....RESPONDENTS
                       (BY SHRI VIJAY KUMAR SHUKLA, PL FOR STATE)
                                                JUDGMENT

(23/02/2022)

This criminal appeal has been filed on behalf of

appellant/Deepu @ Deepak being aggrieved by the judgment and

sentence dated 08/07/2010 passed by learned Special Judge,

(SC/ST), Jabalpur in Special Session Case No.87/2008 whereby

appellant has been convicted under the provisions of Section 307/34

of IPC and sentenced to five years Rigorous Imprisonment and fine

of Rs.1500/-, in default of payment of fine, further rigorous

imprisonment of three months. Further convicted under section 341

of IPC and sentenced to simple imprisonment for one month.

2. It is submitted that appellant has already undergone

sentence of 3 months and 26 days during the trial and thereafter he Signature SAN Not Verified

Digitally signed by TARUN KUMAR SALUNKE Date: 2022.02.24 18:47:20 IST

was enlarged on bail by a coordinate Bench of this Court vide order

dated 08/02/2011, thus post conviction he was in custody for about 5

months. Therefore, appellant has undergone total sentence of about 9

months.

3. Prosecution story in short is that on 21/10/2008 Gulab

Singh and Puran Singh were returning back on motorcycle from

Jabalpur Court after attending a case, when accused Rakesh and Ajju

stopped them and indulge in marpeet with Gulab Singh. Report was

lodged by Puran Singh to the effect that on the fateful day about

quarter to 2 PM, Rakesh and Ajju who were armed with knife

intercepted them. Appellant/Deepu caught hold of Gulab then Rakesh

attacked him with knife causing injury on the stomach of Gulab and

stabbed wound near ear. Thereafter Ajju had caused injury close to

chest. It is submitted that all three persons acted in furtherance of

common intention to cause injury as there is history of old enmity

between Puran and Gulab Singh with the accused persons.

4. It is submitted that Gulab Singh (PW-1) in his testimony

admitted that Deepu @ Deepak also attended court on the same day

when complainant party attended court. He further admitted that

accused persons are known to him since childhood. They lived in the

same mauhalla. This witness admitted in para 5 of his cross

examination that at the relevant point of time when he was

intercepted, accused/Deepu was playing he was intercepted by

Rakesh and Ajju. It is also submitted that though Gulab Singh (PW-1)

initially denied any enmity with one Rakesh Khattar, whose tempo

was put on fire by them but in para 5 he admitted that on the request

of Rakesh Khattar a case was registered against Gulab and Puran

Singh at police station Garha and in connection to that case Gulab

Singh (PW-1) and Puran Singh (PW-2) were attending court on the

said date.

5. Similarly reading testimony of Puran Singh (PW-2), it is

pointed out that he has admitted that there was nobody at the scene

of crime and nobody witness the incident. Puran Singh (PW-2)

admitted that Rakesh had stopped him and Gulab. Though this

witness denied the fact that appellant/Deepu was not present at the

place of incident and also denied the fact that he was playing at some

distance in regard to Deepu.

6. Reading testimony of PW-2, it is submitted that PW-2 ran

away towards the hilly area to save himself and in fact he had not

seen the incident. It is further submitted that this witness has

admitted that Deepak/Deepu had attended court to give evidence in

the said case in which complainant were appearing as an accused.

7. It is submitted that Santosh Khatri (PW-3) is not an eye

witness. He is hearsay witness and he admitted that he has taken

injured Gulab Singh to medical college hospital. He further

mentioned in his chief that injured Gulab was bleeding from stomach

and behind his ear.

8. Dr. Shishir Chanpuriya (PW-5) has admitted that since he

had referred injured, therefore he is not in a position to say what is

the nature of injury. Further submitted that Dr. Shishir Chanpuriya

(PW-5) has admitted that injury no.5, which was 3X2 cm wound on

the stomach from which intestine was coming out. It is submitted that

whole incident is doubtful inasmuch as spot map Ex.P-2 was prepared

by R.P Chaudhary, Sub Inspector (PW-6) at the instant of Puranalal

there is no mention of any name of witness to this spot map.

9. Kallu (PW-8) is another independent witness apart from

PW-3 has not supported the prosecution story and has been declared

hostile. Dr. Shradha Khandelwal (PW-9) has admitted that patient was

in a condition to speak and further admitted that death could have

been caused because of injury on stomach as omentum was coming

out from that injury. Reading this evidence, it is submitted that X-ray

of chest is Ex.P-13 and there is clear mention that there was no

fracture in the chest/ribs and in the skull.

10. Learned counsel for the appellant submits that main

accused is Rakesh with whom there was old enmity with the

complainant as he has lodged a case against them. It is submitted

that looking to the incident took place on 21/10/2008 and for last 14

years, appellant is facing trial, whereas main accused Rakesh, who

had already released from jail on completion of his sentence in Cr.A

No.1356/2010 (Rakesh Vs. State of M.P) and it will not be just to

sustain the jail sentence because neither there was any common

intention so as to convict the present appellant with the aid of section

34 nor there is any overt act attributable to the present appellant.

11. After hearing learned counsel for the parties, I am of the

opinion that it is evident from the evidence which has been adduced

on record that independent witnesses have not supported the

prosecution that injuries were caused by three persons. Main

allegation of causing grievous injury is on the co-accused Rakesh, S/o

Ramesh. It is already admitted by Puran Singh (PW-2) that

complainant party had put tempo of accused/Rakesh on fire and

Rakesh has filed a case against them. There is an admission on the

part of Gulab Singh (PW-1) that appellant/Deepu was playing at some

distance, thus there is sufficient reason to believe that there is no

common intention to cause hurt to the injured witness. Presence of

Deepu & his involvement in the incident is not proved beyond doubt,

there are contradictions in the evidence of PW-1 and PW-2, benefit of

which will accrue in favour of the appellant. Therefore, the conviction

of Deepu @ Deepak with the aid of section 34 under section 307/34 is

prima facie not made out.

12. In view of aforesaid discussions, this appeal is allowed.

The impugned judgment and sentence dated 08/07/2010 so far as it

relates to the present appellant/Deepu @ Deepak is set aside. As

appellant is on bail, therefore, his bail bonds are discharged.

(Vivek Agarwal)

Judge

tarun/