Madhya Pradesh High Court
Jitendra @ Jeete vs The State Of Madhya Pradesh on 19 April, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 19TH OF APRIL, 2023
CRIMINAL APPEAL NO. 372 OF 2016
BETWEEN:-
JITENDRA @ JEETE S/O BIRKHARAM RAWAT,
AGE 25 YEARS, OCCUPATION AGRICULTURIST,
R/O VILLAGE BAJNA, THANA BAILGADHA,
DISTRICT GWALIOR (MADHYA PRADESH)
........APPELLANT
(BY SHRI RAMESHWAR RAWAT - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION BAILGADHA, DISTRICT
GWALIOR
........RESPONDENT
(BY SHRI A.K. NIRANKARI - PUBLIC PROSECUTOR)
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This appeal coming on for consideration of application for
suspension of sentence this day, Hon'ble Shri Justice Rohit Arya
passed the following:
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JUDGMENT
This appeal is though listed today for consideration of I.A.
No.6808/2022, which is second application under Section 389(1) of
CrPC for suspension of sentence and grant of bail to the appellant
Jitendra @ Jeete, however, with the consent of parties, this appeal is
heard finally and is being disposed of.
2. This appeal, under Section 374 of the Cr.P.C., arises out of the
judgment dated 10.02.2016 passed by First Additional Sessions Judge,
Dabra, District Gwalior in Sessions Trial No.535/2014, whereby the
appellant stands convicted for the offence punishable under Section 302
of the IPC and sentenced to undergo imprisonment for life with fine of
Rs.500/-, in default to suffer additional RI for six months. He also
stands convicted under Sections 25(1-b)(a) and 27 of the Arms Act and
sentenced to undergo RI for 1 year with fine of Rs.200/- in default to
suffer RI for 1 month and three years' RI with fine of Rs.500/- in default
to suffer RI for 3 months respectively.
3. Prosecution story, as found proved, is that on 15.06.2014 at about
06:00 PM, the appellant armed with a double barrel gun intercepted a
loading vehicle, whereon complainant and other persons were sitting
and asked for lift till Bajna village. On being refused, the appellant in a
fit of rage fired at the complainant and other persons sitting in the
vehicle causing injury to passenger Bhikaram @ Vikas @ Bhikku on his
stomach, who died on the spot. On being taken to Bhitarwar hospital,
the doctor declared him dead. Accordingly, Merg was registered.
Thereafter, appellant was identified and offence was registered at Crime
No.65/2014.
4. During investigation, spot map was prepared and statements of
witnesses were recorded. The gun was seized from the possession of the
appellant. Dead body of the deceased was sent for postmortem
examination and offence under Section 302 of IPC was enhanced in the
FIR.
5. After completion of investigation, Challan was filed in the Court
of JMFC, Bhitarwar, who committed the case to the Court of Sessions
for trial.
6. During trial, the appellant abjured the guilt and pleaded false
implication. Learned Trial Court upon critical appreciation of evidence
on record convicted and sentenced him as aforesaid, against which, the
instant appeal has been preferred.
7. Learned counsel for the appellant submits that learned Trial Judge
has committed serious illegality in the matter of conviction of appellant
under Section 302 of IPC and sentencing him to life imprisonment. The
evidence on record including ocular evidence led during course of trial
have not been appreciated in right perspective. Neither there was any
motive nor intention or for that matter knowledge on the part of the
present appellant, who is alleged to have fired gunshot causing
homicidal death of the deceased Bhikaram @ Vikas @ Bhikku. That
apart, even assuming what is alleged against the appellant is factually
correct, in the obtaining facts and circumstances, the alleged act on the
part of the appellant is covered under Exception 4 to Section 300 of IPC
and punishable under Section 304A (Part-II) of IPC; culpable homicide
not amounting to murder, for which the sentence is maximum 10 years.
8. Per contra, Shri Nirankari while supporting the impugned
judgment contends that the appellant was armed with a double barrel
gun. He had stopped the vehicle and picked up a fight with the driver
and passengers sitting in the vehicle forcing his entry despite there
being no space in the vehicle. Under such circumstances, gunshot injury
fired by him was with full knowledge and intention that the gunshot
shall cause such bodily injury which may cause death. Under such
circumstances, no exception can be taken in the matter of conviction
under Section 302 of IPC and sentence of life imprisonment. The
judgment of the Sessions Court is well reasoned based upon the oral
testimony of eyewitnesses, namely, Jagdish (PW-1) and Gabbar Singh
(PW-2), who had seen the incident while sitting in the vehicle,
therefore, the appeal deserves to be dismissed.
9. Upon perusal of the record and the judgment rendered by the
Sessions Court, indeed it is a case of homicidal death caused by gunshot
injury on the stomach of the deceased fired by a double barrel gun the
appellant was armed with at the time of incident. However, this Court
cannot lose sight of the fact that it is a case where neither the appellant
nor the deceased or for that matter any of the persons sitting in the
vehicle either were known to each other or had any past enmity. Merely
for the reason the appellant was armed with a double barrel gun by itself
cannot attribute motive on the part of the appellant and intention to fire
gunshot injury to cause homicidal death. It is a case where a vehicle
loaded with passengers since passed through the appellant was stopped
by the appellant only to seek lift to be dropped at a distant place,
inability or refusal on the part of the driver as well as passengers
appears to have enraged the appellant and in heat of passion, he had
fired gunshot causing injury on the stomach of the deceased which led
to his death. Thus, in our considered opinion, it is a case falling within
Exception 4 to Section 300 of IPC which defines murder, therefore, it is
a case of "culpable homicide not amounting to murder" as defined
under Section 304 of IPC. Further, the evidence on record suggest that
the appellant can be said to be having the knowledge that gunshot injury
fired was likely to cause death, but without intention to cause death.
Hence, it is a case punishable under 304 (Part-II), for which
imprisonment is up to 10 years or fine or both.
10. As per the report dated 06.03.2023 furnished by the
Superintendent of Jail, Central Jail, Gwalior, the appellant so far as
undergone 8 years, 8 months and 18 days as on 05.03.2023. On record,
there are no criminal antecedents of the appellant. The incident, in our
opinion, is accidental in nature.
11. Accordingly, conviction of appellant under Section 302 of the
IPC, in view of the foregoing discussion, is liable to be altered to one
under Section 304 (Part-II) of IPC, while his convictions and
corresponding sentences under Sections 25 (1-b)(a) and 27 of the Arms
Act are affirmed.
12. Consequently, the appeal is partly allowed. Conviction of
appellant from Section 302 of the IPC is altered to one under Section
304 (Part II) of the IPC and the custodial sentence is reduced to the
period already undergone although the fine sentence with corresponding
default stipulation, as awarded by the Trial Court, is maintained. Rest of
the impugned judgment is kept intact.
13. Appellant is in jail. Subject to depositing the fine amount, if not
already deposited, he shall be released forthwith, if not required in any
other case, failing which he shall undergo the default sentence as
awarded by the Trial Court.
14. A copy of this judgment along with the record of the Trial Court
be sent to the Trial Court for compliance.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Abhi
Digitally signed by ABHISHEK
CHATURVEDI
Date: 2023.04.20 15:49:08
+05'30'
