Jitendra @ Jeetu vs The State Of Madhya Pradesh
2022 Latest Caselaw 7023 MP

                                   1
            IN THE HIGH COURT OF MADHYA PRADESH
                         AT JABALPUR
                               BEFORE
             HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                           ON THE 10th OF MAY, 2022

                  CRIMINAL APPEAL No. 1428 of 2022

        Between:-
        JITENDRA @ JEETU S/O RAMA @ RADAS
        BELDAR   ,   AGED  ABOUT    32   YEARS,
        OCCUPATION: LABOUR R/O VILLAGE AMBADA,
        P.S. NEPANAGAR DISTRICT BURHANPUR
        (MADHYA PRADESH)

                                                                 .....APPELLANT
        (BY SHRI M.P. TRIPATHI - ADVOCATE )

        AND

        THE STATE OF MADHYA PRADESH THROUGH
        POLICE STATION NEPANAGAR DISTRICT
        BURHANPUR (MADHYA PRADESH)

                                                               .....RESPONDENTS
        (BY SHRI NARENDRA SINGH LODHI-PANEL LAWYER )

      This appeal coming on for final hearing at motion stage this day, the
court passed the following:
                               JUDGMENT

Appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure against the impugned judgment dated 10.01.2022 passed in Sessions Trial No.58/2019 (State of M.P. through Police Station Nepanagar District Burhanpur (M.P.) vs. Jitendra @ Jeetu) by Shri Tapesh Kumar Dubey, First Additional Sessions Judge District Burhanpur whereby appellant has been convicted for commission of offence under Section 307 of I.P.C. and has been sentenced to undergo R.I. for 3 years with fine of Rs.1000/-. In default of payment of fine, he shall further undergo R.I. for 3 months.

2. In brief, the facts of the prosecution case are that on 31.07.2019 at around 6:00 a.m. Ganesh Beldar resident of village Ambada District Nepanagar, who was admitted in District Hospital Burhanpur, informed ASI R.S. Yadav that he is a farmer and labourer. Yesterday on 30.07.2019, he along with Bishan S/o Prem and Jeetu S/o Rama riding on motorcycle had gone to village Sonud to see banana crop. There they saw banana crop and consumed liquor. Thereafter they all left for Ambada on motorcycle which was being driven by Bishan. He was sitting amid Jeetu and Bishan. At around 9:00 p.m. when they reached between Dabali Chhoti and Dabali Badi, Jeetu gave one knife blow in his stomach and another knife blow in his back. When Jeetu was trying to give

third knife blow he caught his hand due to which they all fallen off the motorcycle. After getting up he fled away from there and reached Chhotidabali where from his acquaintance dropped him at Ambada. Three months ago, he had some dispute with Jeetu and due to that dispute, Jeetu had caused injuries. The incident was witnessed by Bishan. He also informed to villagers of Dabali about the incident. He was brought by his family members to District Hospital, Burhanpur at around 01:00 a.m. On the basis of information given by Ganesh (PW-1), Dehati Nalishi Ex.P/1 was recorded by ASI R.S. Yadav (PW-10) and on the basis of Dehati Nalishi Ex.P/1, FIR Ex.P/11 was registered at Crime No.382/19 of P.S. Burhanpur for commission of offence under Section 324 of IPC against appellant/accused by ASI Gopal Singh (PW-11) .

3. In District Hospital, Burhanpur Dr. H.S. Daud (PW-7) examined injured Ganesh and found incised and stab wound on his abdomen below right rib and incised wound in right side of waist and incised wound in the right thumb and referred him to MY hospital, Indore for further treatment. In MY hospital, Indore, Dr. Akriti Patidar (PW-12) examined Ganesh and found a

peritoneum wound in his abdomen. She operated stomach of Ganesh and gave surgical note Ex.P/12. She opined the injuries to be dangerous to life. In MY Hospital Indore Dr. Piyush Kumar Dubey (PW-8) took the X-ray of the chest of Ganesh and found fracture in his 3rd, 4th and 5th ribs and gave X-ray report Ex.P/10.

4. In the course of investigation, SI Dinesh Dandotiya (PW-13) recorded the statements of Bishan S/o Prem, Ravindra, Ganesh, Sorna, Gopal and Anil S/o Mohan. He prepared spot map Ex.P/4. He recovered blood stained sky colored stripe shirt and vest having cut marks from Ganesh and prepared seizure memo Ex.P/2. He arrested accused Jitendra and prepared arrest memo Ex.P/5. He also recovered a Motorcycle bearing registration no.MP-68-MI 7490 on the basis of disclosure memo given by accused and prepared seizure memo Ex.P/7. He recovered an old sharp edged knife 8 inch long and 2 inch wide blade having blood stains from the possession of accused and prepared seizure memo Ex.P/7. He sent query memo Ex.P/14 to doctor for opinion. Seized shirt, vest and knife were sent for chemical examination to FSL Indore through Ex.P/15 memo. FSL report is Ex.P/17.

5. After investigation, police Nepanagar filed a charge sheet against the appellant/accused before JMFC Burhanpur who in his turn committed it to the Court of Session.

6. On 04.10.2019, learned Sessions Judge framed charge against the appellant/accused for commission of offence under Sections 307 and 324 of IPC. Accused abjured his guilt and claimed to be tried.

7. In order to prove its case, the prosecution examined Ganesh (PW-1), Bishan (PW-2), Sorna (PW-3), Gopal Beldar (PW-4), Anil Magan (PW-5),

Vinod (PW-6), Dr. H.S. Daud (PW-7), Dr. Piyush Kumar Dubey (PW-8), Dr. Darpan (PW-9), R.S. Yadav (PW-10), Gopal Singh (PW-11), Dr. Akriti Patidar (PW-12), Dinesh Dandotiya (PW-13) and Brajkishore Patel (PW-14). In defence, the appellant/accused has not examined any witness.

8. Learned trial Court after recording the evidence of witnesses and hearing the parties by the impugned judgment, convicted the appellant for commission of offence under Sections 307 and 324 of IPC and sentenced him to undergo RI for 3 years and fine of Rs.1000/-. Hence this appeal.

9. At the very outset, learned counsel for the appellant has submitted that he does not want to challenge the conviction of appellant/accused under Section 307 of IPC recorded by learned trial Judge but submitted that parties have already entered into a compromise and appellant/accused has already suffered sentence of more than 2 years 9 months and some days. Therefore, the sentence of appellant/accused be reduced to the period already undergone by him so far.

10. On the other hand, learned Panel Lawyer for the respondent/State has contended that undoubtedly appellant/accused and injured/complainant have entered into compromise and appellant/accused has suffered sentence of more than 2 years 9 months and some days in custody but looking to the facts of the case, it should not be reduced to the period already undergone by him. Thus, he has prayed for dismissal of the appeal.

11. Ganesh (PW-1) has deposed that he knew Jeetu @ Jitendra. Four months ago at around 09:00 p.m. between Badi Dawali and Chhoti Dawali when he along with Bishan and Jeetu riding on motorcycle was returning home from Saunud village to their home and was sitting in the middle of the motorcyle between Bishan and Jeetu, Jitendra gave knife blows over his abdomen and his

back, and when he was attempting to give third blow, he caught the knife in his hand due to which they all fallen off the motorcycle. Thereafter, he went to Dabali and some one from Dabali had dropped him to his home at Ambada. He was taken to District Hospital, Burhanpur by 108 Ambulance. He has supported Dehati Nalishi Ex.P/1. He has supported seizure of his blood stained cut mark shirt and vest from him by police. Ganesh (PW-1) has been firm and consistent in his cross-examination.

12. Bishan (PW-2) has been declared hostile. He has not supported the prosecution case. According to him, they all had fallen off the motorcycle and Ganesh had sustained injury from bakhiya (used for cutting banana) kept with them.

13. Sorna (PW-3) is the wife of Ganesh. She has deposed that her husband had informed her that he met with an accident. She had taken him to Government Hospital, Burhanpur. She has also not supported the prosecution case.

14. Gopal Beldar (PW-5) is the resident of Ambada. He has deposed that at about 5-6 months ago, when he was in his home at Ambada, at around 10-10:30 p.m. he received a phone call from Anil informing that Ganesh S/o Dayaram who is in Dabali is having injuries which are bleeding. According to Ganesh, when he was travelling on motorcycle with Jeetu and Bishan, Jeetu had inflicted injuries upon him by means of knife.

15. Anil Magan (PW-5) has deposed that at around 10:00 p.m. Ganesh whose wounds were bleeding and shirt was full of blood had come to his home and had told him that when he was travelling on a motorcycle with Jitendra and Bishan, Jeetu @ Jitendra gave knife blows on his stomach, back and hand. The

evidence of Gopal Beldar (PW-4) and Anil Magan (PW-5) is unrebutted. They have been firm and consistent in their cross-examination. Though their evidence is hearsay, but it cannot be overlooked that just after the incident, Ganesh reached to the house of Anil Magan (PW-5) and told him about the person who caused injury to him by means of knife.

16. Dr. H.S. Daud (PW-7) has deposed that on 31.07.2019 he was posted as Medical Officer in District Hospital Burhanpur. Ganesh resident of Ambada was brought in 108 Ambulance. He had examined him and had found following injuries:

(1) Incised stab wound in abdomen right mid subcostal region 2 cm long and 2 cm wide.Depth not known with swelling around and bulging of wound.

(2) Subcostal region lateral side incised wound 1.5 cm x 1 x 0.5 cm. muscle deep.

(3) Incised wound 1cm x 0.5 cm x 0.5 cm on right thumb.

For injury no.1 X-ray and C.T. scan was advised. He was referred to MY Hospital Indore. According to Dr. Daud, injuries were caused by hard and sharp object within 4-6 hours of examination. He has proved MLC report Ex.P/8.

1 7 . Dr. Akriti Patidar (PW-12) who treated injured Ganesh at MY Hospital Indore, has deposed that she had operated Ganesh's abdomen injury and had found pus around 300 ml in it. His peritoneum was found ruptured. Injury was caused on his abdomen by hard and sharp object. His surgical note is Ex.P/12. According to Dr. Akriti Patidar, the injury was life threatening. She has also proved query report Ex.P/13.

18. Dr. Piyush Kumar Dubey (PW-8) who at the relevant time was

posted as Radiologist in MYH Indore took the X-ray of chest of Ganesh and found fracture on 3rd, 4th and 5th ribs of his chest. He has proved X-ray report Ex.P/10 and X-ray plate Ex.P/11. There are no reasons to disbelieve the medical evidence of Dr. H.S. Daud (PW-7), Dr. Akriti Patidar (PW-12), Dr. Piyush Kumar Dubey (PW-8) and Dr. Darpan (PW-9). Relying on the medical evidence of doctors, learned trial Court has not committed any error in concluding that injury found on the abdomen of injured Ganesh was grievous in nature and life threatening.

19. As far as the evidence of Ganesh (PW-1) who is injured witness is concerned, there are no reasons to disbelieve his evidence. To some extent, his evidence stands corroborated by the evidence of Anil Magan (PW-5) to whom he informed about the incident in his village. Dehati Nalishi Ex.P/1 and FIR Ex.P/11 have been lodged then and there. Thus, learned trial Court has not committed any error in placing reliance on the evidence of injured Ganesh (PW-

1) fully supported by the medical evidence and the promptly lodged FIR. Thus, learned trial Court has not committed any error in holding the appellant/accused guilty of commission of offence under Section 307 IPC. Thus, conviction of appellant Jeetu @ Jitendra as recorded by learned trial Court is hereby affirmed.

20. Learned counsel for the appellant has submitted that parties have already entered into compromise. Therefore, the jail sentence awarded to appellant/accused be reduced to the period already undergone by him so far.

21. On a perusal of para 45, 46 and 48 of the trial Court judgment, it is revealed that appellant/accused and injured have voluntarily entered into compromise and have buried their dispute. As per para 48 of the trial Court

judgment, the appellant/accused has no criminal antecedent and this was his first offence. It also cannot be overlooked that at the time of commission of offence injured and appellant/accused both along with other friend were in drunken condition.

22. Appellant/accused and complainant/injured are the resident of same village. They are well known to each other and have settled their dispute and wanted to continue to have cordial relations. Injured/complainant voluntarily without any compulsion on his own free will has entered into compromise with appellant/accused and wishes to drop the present criminal proceedings against the accused. They live very close to each other and are related to each other.

23. In Murali vs State Rep By Its Inspector of police- 2021 (1) SCC 726 and in Shiji @ Pappu & Ors vs Radhika & Anr-2011(10) SCC 705, Hon'ble Apex Court has ruled that the fact of amicable settlement can be a relevant factor for the purpose of reduction in the quantum of sentence of convicts even in serious noncompoundable offences. Reliance can also be placed on Ramavtar vs. State of M.P. - ILR (2022) MP 01 (SC).

24. On a perusal of report received from the jail, it is apparent that appellant has already suffered more than 2 years 9 months and some days jail sentence and few days are left in completion of sentence. Therefore, the period of jail sentence is reduced to the period already undergone by appellant/accused so far.

25. Consequently, this appeal is partly allowed to the extent of modification in the jail sentence. Appellant Jitendra @ Jeetu be released forthwith in this case, if not required in any other case, subject to deposit of fine if not already deposited.

Trial Court record along with copy of judgment be sent down

immediately.

Digitally signed
by BIJU BABY
Date: 2022.05.12
17:05:21 +05'30'                      .(DINESH KUMAR PALIWAL)
                                                JUDGE
                   b