Madhya Pradesh High Court
Pintu Thakur @ Neeraj Thakur vs The State Of Madhya Pradesh on 13 October, 2023
Author: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
DIVISION BENCH : HON'BLE SHRI JUSTICE VIVEK RUSIA
HON'BLE SHIR JUSTICE ANIL VERMA
Criminal Appeal No.877 of 2020
Pintu Thakur @ Neeraj Thakur & Another v/s the State of Madhya Pradesh
Indore, dated 13.10.2023
Shri Avinash Sirpurkar, learned Senior Counsel assisted by
Shri Yogesh Gupta, learned counsel for appellant No.1.
Shri Ajay Gupta, learned Senior Advocates assisted by
Shri Kunjan Mittal & Ms. Aashi Agrawal, learned counsel for
appellant No.2.
Ms. Varsha Thakur, learned Panel Lawyer for the
respondent / State.
Shri Sameer Anant Athawale, learned counsel for the
complainant / objector.
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01. Heard on I.A. No.15521/2022, which is first application
under Section 389(1) of the Code of Criminal Procedure, 1973 for
suspension of jail sentence and grant of bail filed on behalf of
appellant No.1 - Pintu Thakur @ Neeraj Thakur S/o late Amar
Singh Ji Thakur.
02. Also heard on I.A. No.5283/2023, which is repeat (third)
application under Section 389(1) of the Cr.P.C. for suspension of
jail sentence and grant of bail filed on behalf of appellant No.2 -
Alpesh S/o Ramesh Chauhan.
03. The present appellants have been convicted for the
offences punishable under Section 302/34 of the Indian Penal Code
& Section 27 of the Arms Act and sentenced to undergo Life
Imprisonment along with fine of Rs.2,000/- each and 03 years'
rigorous imprisonment along with fine of Rs.500/- each with
default stipulations.
04. As per prosecution story, on 28.05.2009 at about 9:10,
deceased - Santosh went to Body Temple Gym. At about 10:00 am
when he was inside the gym, accused Pintu, Alpesh and Jitendra @
Jittu (now dead) wielding country made pistol (Katta) entered into
the Body Temple Gym and Jittu pointed the pistol towards Santosh
and after some heated arguments with him, they all started firing
from Katta. The bullets hit on various parts of the deceased and he
fell down. At that time, brother of the deceased Pramod Dubey and
Santosh Rajguru were also present in the gym and they
immediately took him to the hospital, where he was declared
brought dead.
05. On an information given by Pramod Dubey, an F.I.R.
under Section 302/34 of the IPC was registered. Upon completion
of investigation charge-sheet was filed against Pintu, Alpesh and
Jitendra @ Jittu (now dead) and one other. During the pendency of
the trial, one of the main accused Jitendra @ Jittu died and the trial
was proceeded against Pintu @ Neeraj and Alpesh. Vide judgment
dated 04.12.2019, Pintu @ Neeraj and Alpesh have been convicted
for the offences punishable under Section 302/34 of the IPC &
Section 27 of the Arms Act. However, they have been acquitted
from the offence punishable under Section 120-B of the IPC and
25(1-B) of the Arms Act.
06. Shri Avinash Sirpurkar, learned Senior Counsel appearing
on behalf of appellant No.1 - Pintu @ Neeraj submits that there is
no recovery of pistol from him. Learned Additional Sessions Judge
has recorded the finding that four bullets found in the body of the
deceased were fired from the gun recovered from accused -
Jitendra @ Jitu. The FSL report has proved that the bullet
recovered from the body of deceased matched with pistol
recovered from the possession of Jitendra @ Jitu, therefore,
appellant No.1 has wrongly been convicted under section 302 with
the aid of Section 34 of the IPC. Learned senior counsel further
submits that appellant No.1 was on bail during the trial and he
never misused the liberty granted to him. It is further submitted
that he has been acquitted under Section 120-B of the IPC as the
trial Court did not find any conspiracy between these accused
persons to commit the murder of deceased. Once he has been
acquitted under Section 120-B I.P.C., therefore, he has wrongly
been convicted under Section 302/34 of the I.P.C. as the
requirements of Section 120-B & 34 I.P.C. are identical. The trial
Court has drawn inference of prior meeting of mind of accused
persons. The appellant is in jail since last so many years and there
is no likelihood of final hearing of this criminal appeal, hence, jail
sentence of this appellant No.1 may kindly be suspended.
07. Shri Ajay Gupta, learned Senior Counsel for appellant
No.2 - Alpesh has adopted the arguments of Shri Avinash
Sirpurkar and in addition, submits that although the gun was
recovered from Alpesh, but the deceased was not died because of
bullets fired from his gun. He has no criminal record. He has also
been acquitted under Section 120-B of the IPC, therefore, the
conviction under section 302 with the aid of Section 34 I.P.C. is
unsustainable. After rejection of earlier applications, sufficient time
has lapsed and there is no likelihood of early disposal of this appeal
in near future. Hence, remaining jail sentence of this appellant may
be suspended.
08. Learned Panel Lawyer for the respondent / State and
learned counsel appearing for the objector oppose the aforesaid
prayer by submitting that most of the eye witness supported the
case of prosecution and according to them, these appellants were
also carrying the pistol in their hands and entered into the gym with
a common intention to kill the deceased. They also fired number of
bullets and disposed of the guns as they are hardcore criminals.
Human blood was found on the shirt of appellant No.1, however
blood group did not match. The earlier application for suspension
of jail sentence filed by appellant No.2 - Alpesh had already been
rejected by a reasoned order. It was a murder in broad day light in
presence of the witnesses and such criminal should not be set free.
It is further submitted that so far as the acquittal under Section 120-
B of the IPC is concerned, the complainant has already filed a
criminal appeal, hence, such accusation is sub judice.
09. We have heard the learned counsel for the parties at length
and perused the record of the case.
10. All the three accused persons Pintu, Alpesh and Jitendra @
Jittu (now dead) together entered into the gym where the deceased
was already there. Jittu pointed pistol towards the deceased. As per
FSL report all four bullets found in the body of the deceased were
fired from the Pistol recovered from Jittu who is no more. The
others two the appellants have been convicted under Section 302
with the aid of 34 as they were present in the gym with late Jittu.
Although the trial Court has not found criminal conspiracy between
them to murder the deceased, hence, acquitted under section 120-B
I.P.C., but common intention under Section 34 has been found
established is a correct approach or not is liable to be examined by
this Court at the time of final hearing.
11. In the case of Chandrakant Muryappa Umrani v/s State
of Maharashtra reported in 1998 SCC (Cri) 698, the Apex Court
has held as under:-
"3. In our considered view the above reasoning of the
trial court to convict the appellants under Sections
304(II)/34 IPC is patently wrong. Before a person can
be convicted with the aid of Section 34 IPC the
ingredients that are required to be satisfied are that he
along with others committed a criminal act and that
such act was done in furtherance of the common
intention of them all. On the own showing of the trial
court the appellants were merely standing when the act
of murder was committed by the other four. Indeed no
evidence was laid by the prosecution to prove that any
of the appellants committed any criminal act which
resulted in the death of the victim. The reliance of the
trial court on Mer Dhana Sida [(1985) 1 SCC 200 :
1985 SCC (Cri) 54] was wholly misplaced for in that
case the persons who were convicted under Sections
304(II)/34 IPC committed a criminal act, in that, they
assaulted the deceased."
[Emphasis Supplied]
12. Keeping in view the facts and circumstances of the case
and the law laid down by the Apex Court in the aforesaid case, we
deem it proper to suspend the remaining jail sentence of these
appellants. Accordingly, I.A. Nos.15521/2022 & 5283/2023 stand
allowed.
13. The execution of remaining jail sentence of appellants
No.1 & 2 - Pintu Thakur @ Neeraj Thakur & Alpesh respectively
is hereby suspended and it is ordered that these appellants be
released on bail upon their furnishing a personal bond for a sum of
Rs.50,000/- (Rupees Fifty Thousand Only) each with separate
solvent surety of the like amount to the satisfaction of the trial
Court and subject to depositing the fine amount (if not already
deposited) with a further direction to appear before the Registry of
this Court on 22.12.2023 and also on such other dates, as may be
fixed by the Registry of this Court in this regard during the
pendency of this appeal.
List the appeal for final hearing in due course.
Certified copy, as per Rules.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2023.10.17 18:04:18 +05'30'
