Madhya Pradesh High Court
Shubham Jatav vs The State Of Madhya Pradesh on 8 May, 2023
Author: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 8 th OF MAY, 2023
CRIMINAL APPEAL No. 10962 of 2019
BETWEEN:-
1. SHUBHAM JATAV S/O DIGAMBAR JATAV,
AGED ABOUT 19 YEARS, OCCUPATION:
LABOUR R/O ANKITA NAGAR HOUSING
BOARD COLONY HOSHANGABAD TEHSIL
AND DISTRICT (MADHYA PRADESH)
2. BHARAT ALIAS SOLJAR S/O DIGAMBAR
JATAV, AGED ABOUT 19 YEARS,
OCCUPATION: LABOUR R/O ANKITA NAGAR
HOUSING BOARD COLONY, HOSHANGABAD
TEHSIL AND DISTRICT HOSHANGABAD
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI AJAY KUMAR JAIN-ADVOCATE )
AND
THE STATE OF MADHYA PRADESH THR POLICE
STATION DEHAT DISTT. HOSHANGABAD
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI S. M. PATEL-PANEL LAWYER)
This appeal coming on for hearing this day, the court passed the
following:
JUDGMENT
Feeling aggrieved and dissatisfied with the impugned judgment of
conviction and order of sentence dated 10.12.2019 passed by III
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Signed by: BIJU BABY
Signing time:
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Additional Sessions Judge, Hoshangabad in ST No.8/19 (State of M.P.
Vs. Subham Jatav and others) by which appellants have been convicted
for commission of offence under Sections 307 and 307/34 of IPC and
have been sentenced to 7-7 years RI and fine of Rs.2500-2500/- with
default stipulation, the present appeal under Section 374(2) of Cr.P.C has
been filed by the aforesaid appellants/accused.
2 . Prosecution case in short is that on 26.09.2018, at 02:30 p.m.
Aa k a s h Baruniya who was admitted in New Pandey Hospital,
Hoshangabad informed ASI Surendra Malviya of Police Station
Hoshangabad Dehat that he is a student of B.Com Final in NMB College,
Hoshangabad. One week ago, he had made understand to Subham S/o
Digambar Jatav not to tease her sister. On 25.09.2018, at around 07:30
p.m., when he was purchasing grocery items at housing board colony in
front of Hanuman temple, Subham Jatav and Soljar Jatav came and abused
him. Soljar caught hold him and Subham gave a knife blow on the left side
of his abdomen. The matter was pacified by Linu Mathew and Guddu
Awdhiya. While leaving the place they threatened him to do death. He was
brought to the hospital by his father and Linu Mathew. On the basis of
narration given by Aakash (PW-2), Dehati Naleshi Ex.P/2 was recorded by
ASI Surendra Malviya and on the basis of Ex.P/2 Dehati Naleshi, FIR was
registered at FIR No.515/2018 in P.S. Hoshangabad Dehat for
commission of offence under Sections 294, 324, 506/34 of IPC.
3. In District Hospital, Hoshangabad, Dr. Sunil Jain (DW-1)
examined injured Aakash and found a lacerated wound size 2 x 0.5 cm. on
left side of navel on abdomen. After treatment, he was advised to get
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admit but he got himself admitted in some private hospital. In New Pandey
Hospital, Dr. Narendra Pandey (PW-7) examined injured Aakash on
25.09.2018 and found a stitched wound of 1"x 1/2" on the left side of his
navel on abdomen. He operated the wound and found his small intestine
cut at four places. The size of cut was 1" x 1/2"x1/2"x1/2". The injury was
caused by some hard and sharp object and could have been life
threatening if it was not operated well in time.
4. In the course of investigation, ASI Mukesh Soni (PW-8)
prepared site map Ex.P/5. He seized clothes worn by the injured at the
time of incident and prepared seizure memo Ex.P/3. He seized blood
stained and simple earth from the spot and prepared seizure memo Ex.P/6.
On the basis of disclosure memo given by the accused Subham, one knife
was seized and memorandum Ex.P/11 and seizure memo Ex.P/12 were
prepared. Appellant/accused Subham, Bharat, Vikki and Deepak were
arrested and arrest memo Ex.P/13 to P/16 were prepared.
5 . After completion of investigation, police Dehat Hoshangabad
filed a charge sheet against the present appellants before the learned CJM
who in its turn, committed the case to the Court of Session.
6. Learned III Additional Session Judge, Hoshangabad framed
charges against the accused for commission of offences under Sections
294, 324/34, 307 in alternative 326, 506-II of IPC. Accused persons
abjured their guilt and claimed to be tried.
7. In order to prove its case, prosecution examined nine
prosecution witnesses namely Devendra Vaish (PW-1), Aakash Baruniya
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(PW-2), Manoj Kumar Badoniya (PW-3), Abhishek Kalosiya (PW-4),
Linu Mathew (PW-5), Vikki @ Vikas Jakhoriya (PW-6), Dr. Narendra
Pandey (PW-7), Mukesh Soni (PW-8) and Shiva Rajput (PW-9). In
defence, accused examined Dr. Sunil Jain (DW-1). Learned III Additional
Sessions Judge after recording the evidence of prosecution, defence
witnesses and hearing the parties found the appellants/accused Subham
and Bharat @ Soljar guilty for commission of offence under Sections 307
and 307/34 of IPC and sentenced them as aforementioned.
8. Learned counsel for the appellants/accused at the very outset
submitted that he does not want to challenge appellants' conviction for
commission of offence under Sections 307 and 307/34 of IPC. It is
submitted that appellants are 23, 24 years old young boys. At the time of
commission of offence they were 19 years old with no criminal
background. They have already suffered almost 5 years sentence in jail.
The single injury found on the person of injured was not life threatening as
Dr. Narendra Pandey (PW-7) has stated that injury caused to the injured
could have been life threatening if it was not operated well in time. It is
further submitted that only one knife blow was given by accused Subham.
The only allegation against Soljar is to caught hold him at the time of
causing injuries. Therefore, it has been prayed that considering all the
aforesaid aspects, sentence of accused may be reduced to a period of 5
years, in place of 7 years as accused are young and they can resettle in
their lives. They are not previous convict or offender. They are young
boys. The seven years jail sentence is extremely harsh and unjustified.
Therefore, he has prayed to reduce it to a period of 5 years with fine
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imposed by trial Court.
9. Per contra, learned Panel Lawyer for the respondent/State has
supported the conviction of the appellants/accused under Sections 307
and 307/34 of IPC but has fairly admitted that appellants/accused are real
brothers. They are first offender and at the time of commission of offence
they were 19 years old young boys with no criminal antecedents.
Therefore, he has no objection if sentence is reduced to the period of 5
(Five) years , in place of 7 years.
10. I have heard learned counsel for the parties.
11. As far as conviction of appellants/accused for commission of
aforesaid offence is concerned, injured Aakash (PW-2) in his evidence has
deposed that he knew accused persons. On 25.09.2018, at around 07:30
p.m. he had purchased a gift pack from Gurukripa shop in front of
housing board. When he came out of the shop, Subham and Soljar along
with Vikki and Deepak came. Vikki and Subham abused him. Vikki gave a
slap, Soljar caught hold his collar and Subham gave a knife blow in his
abdomen. He was taken to the hospital by his father and Linu Mathew.
Aakash (PW-2) was cross-examined at length but he has been firm and
consistent in his cross-examination.
12. Manoj Kumar Badoniya (PW-3), father of Aakash (PW-2) is
not an eyewitness. He is a hearsay witness. Abhishek Kalosiya (PW-4) is
also a hearsay eyewitness. Linu Mathew (PW-5) is also a hearsay witness
though he is the person who took injured to the hospital. Vikki @ Vikas
(PW-6) has been declared hostile, he has not supported the prosecution
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story. Thus, none of the independent witness has supported the evidence
of injured Aakash (PW-2).
13. Shiva Rajput (PW-9) is a witness of disclosure memo and
seizure memo Ex.P/11 and Ex.P/12. He is also declared hostile. He has not
supported the factum of seizure of the knife from accused Subham.
14. Dr. Sunil Jain (DW-1) has deposed that on 25.09.2018 in
District Hospital Hoshangabad he had examined injured Aakash and had
found 2 x 0.5 cm. lacerated wound on left side of navel in abdomen. He
has supported Ex.D/3 and Ex.D/4. In cross-examination, he has admitted
that when Aakash was brought to the hospital his general condition was
not good. Dr. Narendra Pandey (PW-7) has deposed that on 25.09.2018 in
New Pandey Hospital, Hoshangabad Aakash Badoniya aged 18 years was
brought by his father Manoj Kumar Badoniya for treatment. He had
operated the stitched wound. The size of the wound was 1" x 1/2". He had
operated it. He had found small intestine cut at four places and its size was
1" x 1/2" x1/2"x1/2". Mesentery of small intestine was also found cut and
its size was 1 and 1/2"x 1"x 1/2"x1/2". Injury was caused by some sharp
and hard object and it could have been fatal to life if it was not treated well
in time. He has proved his MLC report Ex.P/9 and query report Ex.P/10.
He has deposed that injured remained hospitalized in his hospital for a
period of almost 10 days i.e. from 25.09.2018 to 05.10.2018.
15. There are no reasons to disbelieve the evidence of Dr. Sunil
Jain (DW-1) and Dr. Narendra Pandey (PW-7). Therefore, in the light of
the evidence of the injured which found corroboration from the medical
evidence, I am of the view that learned trial Court has rightly convicted the
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Signed by: BIJU BABY
Signing time:
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appellants/accused for commission of offence under Sections 307 and
307/34 of IPC. Thus, the findings of conviction for commission of
offence under Section 307 and 307/34 of IPC in case of
appellants/accused Subham Jatav and Bharat @ Soljar are confirmed as
same does not suffer from any legal infirmity.
16. As far as quantum of sentence is concerned, learned counsel
fo r the appellants has submitted that sentence awarded to appellants is
disproportionate and prays that it may be reduced to a period of 5 years.
17. In this case, it cannot be overlooked that appellants/accused are
real brothers. They are first offenders. At the time of commission of
offence they were 19 years old young boys, only single injury was caused
to the injured by appellant Subham and he did not attempt further to hurt
him.
18. Thus, taking into consideration the aforesaid facts, I am of the
view that sentence of 7 years RI awarded to the appellants is likely on the
higher side and required to be reduced. Therefore, it is reduced to 5 (Five)
years rigorous imprisonment in place of 7 (Seven) years RI. The sentence
of fine of Rs.2500/-2500/- as awarded by trial Court is affirmed. The order
of grant of Rs.2500/- as compensation to injured Aakash under Section
357 of Cr.P.C. is also affirmed.
19. Accordingly, this appeal is partly dismissed but partly allowed
and the sentence awarded to the appellants is modified as above.
20. With the aforesaid modification, this appeal stands disposed of.
Appellants are in jail. Registry is directed to prepare Super session warrant
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and to forward the same to the jail authority concerned.
21. Trial Court record along with a copy of the judgment be sent
down to the concerned Court through Sessions Judge Hoshangabad.
(DINESH KUMAR PALIWAL)
JUDGE
b
Signature Not Verified
Signed by: BIJU BABY
Signing time:
5/10/2023 5:15:43 PM
