Aatil Shah vs The State Of Madhya Pradesh
2024 Latest Caselaw 12265 MP

Madhya Pradesh High Court

Aatil Shah vs The State Of Madhya Pradesh on 2 May, 2024

Author: Dinesh Kumar Paliwal

Bench: Dinesh Kumar Paliwal

                                                          1
                              IN THE HIGH COURT OF MADHYA PRADESH
                                           AT JABALPUR
                                                   BEFORE
                                 HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                                                 ON THE 2 nd OF MAY, 2024
                                           CRIMINAL APPEAL No. 4574 of 2022

                         BETWEEN:-
                         AATIL SHAH S/O TURAB SHAH, AGED ABOUT 27 YEARS,
                         OCCUPATION: LABOUR R/O SHANTI NAGAR, NEAR
                         MASJID, NAKATUA, P.S. STATIONGANJ, NARSINGHPUR
                         DISTRICT NARSINGHPUR (MADHYA PRADESH)

                                                                                       .....APPELLANT
                         (BY SHRI GANGA PRASAD PATEL-ADVOCATE )

                         AND
                         THE STATE OF MADHYA PRADESH THROUGH P.S.
                         STATIONGANJ DISTRICT NARSINGHPUR (MADHYA
                         PRADESH)

                                                                                     .....RESPONDENT
                         (BY SHRI S. M. PATEL-PANEL LAWYER)

                               Th is appeal coming on for hearing this day, t h e court passed the
                         following:
                                                         JUDGMENT

This criminal appeal under Section 374 (2) of the Cr.P.C. has been filed by the appellant Aatil Shah being aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence dated 12.05.2022 passed by learned Session Judge, Narsinghpur in Session Trial No.134/2021 (State of MP Vs. Aatil Shah) whereby appellant has been convicted for commission of offence under Sections 326 of IPC and has been sentenced to undergo R.I. for 5 years and fine of Rs.2000/-. In default of payment of fine, he shall undergo further R.I. for 6 months.

2. As per prosecution story, on 25.06.2021 at around 12:59 a.m. complainant Mohd. Sarafrajuddin appeared at police station Kareli and lodged F.I.R. stating that his shop known as 'Sarkar Chicken Shop' is at Shantinagar Nakthua. On 24.06.2021, at around 10:15 p.m. he had gone to watch lock of his shop. Shahbaaj biryani shop is by the side of his shop. Aatil use to come at Shahbaaj biryani shop. Danish Musalman and Akshay Mehra were watching mobile and were talking with each other in front of his shop. Aatil Shah came there and started to abuse Danish, he asked him not to abuse, at this, Aatil started to give knife blows causing injuries. When Aatil was attempting to give another blow he gave a lathi blow on the foot of Aatil and anyhow saved

Danish. The incident was witnessed by Akshay Mehra and Shafiuddin. F.I.R. was registered. After completion of investigation, charge sheet was filed for commission of offence under Sections 294, 326 of I.PC. and Section 25(1-B)B and 27 of Indian Arms Act. Learned Judicial Magistrate First Class committed the case to the Court of Session.

3. Learned Session Judge framed charges against the appellant/accused for commission of offence under Sections 294, 326 of I.P.C. and Section 25(1- B)B and 27 of the Indian Arms Act. The accused abjured his guilt and claimed to be tried.

4. In order to prove its case, prosecution examined Mohd. Sarafraj (PW-

1), Danish Khan (PW-2), Mohd. Safiuddin (PW-3), Parvej (PW-4), J. N. Gyarsiya (PW-5) and Dr. Pranav Sen (PW-6). No witness was examined in defence.

5. Learned Session Judge after hearing the parties acquitted the appellant for commission of offence under Section 294 of IPC and Section

25(1-B)B and Section 27 of the Indian Arms Act, 1959 but convicted him for

commission of offence under Section 326 of IPC and sentenced him as mentioned herein above in para No. 1.

6. At the very outset, learned counsel for the appellant has submitted that parties have entered into compromise and compromise has been duly verified by the Registrar (J-II) of the Court. Therefore, he does not want to challenge the appellant's conviction under Section 326 of IPC. But has submitted that appellant is in jail since 12.05.2022. He has already undergone jail sentence for a period of almost two years and prior to this he remained in jail for a period of 4 days i.e. from 26.06.2021 to 29.06.2021. As such, he has undergone incarceration for a period of 2 years. Therefore, it is prayed that the jail sentence of appellant may be reduced to the period already undergone by him.

7. On the other hand, learned counsel for the State has supported the judgment of conviction and findings recorded by the learned trial Court but has fairly admitted that appellant has already undergone incarceration almost for a period of 2 years. Therefore, he has no objection if sentence is reduced to the period already undergone by him maintaining the sentence of fine imposed by the trial Court.

8. I have heard learned counsel for the parties and perused the impugned judgment and record of the trial Court.

9. Danish Khan (PW-2) has deposed that on 24.06.2021 at around 10:00-

10:15 p.m. he was talking with Sarafraj. Some altercation had taken place between Shahbaaj and Aatil. When he asked Aatil not to utter abuses, Aatil had caused injuries on his person by means of knife. The aforesaid evidence of Danish Khan (PW-2) finds full corroboration from the evidence of eyewitnesses Mohd. Sarafraj (PW-1) and Mohd. Safiuddin (PW-3).

10. Dr. Pranav Sen (PW-6) has deposed that on 24.06.2021, he had examined Danish Khan (PW-2) and had found one incised wound on left side of his chest 4 cm below the nipple measuring 3 cm x 2 cm x 3cm deep. Injury was caused in the lungs. He had referred the patient for further treatment to Jabalpur. He has proved his MLC report Ex.P/6. In his evidence, Dr. Pranav Sen has made it clear that nature of injury was grievous. From the evidence of injured, eyewitnesses and medical evidence, it is apparent that appellant Aatil had voluntarily caused grievous injury on the person of injured Danish by means of knife and same was grievous in nature. The evidence of Danish Khan (PW-2) is supported not only by the evidence of the eyewitnesses but also by the medical evidence and promptly lodged F.I.R. Thus, no fault is visible in the findings of conviction recorded by the trial Court. Consequently, findings of conviction of appellant recorded by learned trial Court for commission of offence under Section 326 of IPC is hereby confirmed.

11. Parties have entered into compromise and same has been duly verified by Registrar (J-II) of this Court. Compromise is voluntarily and has been entered into with free will and volition. As per para 32 of the impugned judgment, it is apparent that appellant is a first offender. He is 27 years old young boy.

12. It is settled position of law that the factum of compromise can be considered by the Court on the question of nature and quantum of sentence, in case the conviction is upheld. Reliance is placed on Hasimohan Barman vs. State of Assam (2008) 1 SCC 184, Ramlal vs. State of Jammu and Kashmir AIR 1999 SC 895, Surindra Nath Mohanthy vs. State of Orissa 1999 Cr.L.J. 3496 (S.C.) and Rampujan vs. State of Uttar Pradesh AIR 1973 SC 2418.

Therefore, the factum of compromise between the parties may be considered

on the question of sentence as conviction has been upheld.

13. In this case, it cannot be overlooked that appellant has already suffered almost 2 years actual incarceration. Parties have entered into compromise. Appellant is first offender with no previous criminal background. Therefore, I am of the view that it would be just and proper and in the interest of justice to reduce the jail sentence of appellant Aatil Shah to the period already undergone by him with the fine sentence imposed by the trial Court.

14. Accordingly, this appeal is partly allowed. The conviction of the appellant for commission of offence under Section 326 of IPC is confirmed but appeal is partly allowed and his jail sentence is reduced to the period already undergone by him.

15. This appeal is disposed of with the aforesaid modification in the sentence.

16. Registry/Trial court is directed to prepare Super session warrant/release warrant and the same be sent to the Superintendent of Jail Narsinghpur with a direction that if appellant/accused is not warranted in any other case, he be released in this case forthwith.

17. Registry is directed to immediately sent down the trial Court record along with copy of appeal judgment to the trial Court concerned for information and necessary compliance through Sessions Judge, Narsinghpur.

(DINESH KUMAR PALIWAL) JUDGE b