REPORTABLE  

 IN THE SUPREME COURT OF INDIA    CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No. 679  OF 2006            

JITU @ JITENDER ...   Appellant(s)                         Versus    STATE OF M.P. ...  Respondent(s)

                          J U D G M E N T

Dr.ARIJIT PASAYAT,J.

Challenge in  this  appeal  is  to  the  judgment  of  a  Division  Bench of  the

Madhya  Pradesh  High  Court,  Indore  Bench  upholding  the  conviction  of  the

appellant for offence punishable under Section 302 of the Indian Penal Code, 1860

(in short 'IPC').  Four persons faced trial for allegedly committing murder of one

Umesh (hereinafter referred to as the 'deceased').  Accused-Mukesh died during the

pendency of the trial, while another accused Pappu@Deepak was acquitted by the

trial court.  

It is stated that on 17.11.1995, the occurrence took place in which due to

the assaults made by the accused persons Umesh breathed his last, while three of the

persons

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Bhagirath PW8, Bherulal PW9 and Yogesh PW10 sustained  injuries.  On the basis

of the information lodged by PW8 law was set into motion and  investigation was

conducted.  On completion of  investigation,  charge  sheet  was  filed.   Reliance  was

placed on the evidence of PWs 8,9 and 10 by the trial court to record, conviction, so

far as accused Rakesh and present appellant-Jitu @ Jitender are concerned.   

It  is  to  be  noted   that  the  accused  persons  were  charged  for  offences

punishable under Section 302 read with Section 34 and Section 324 read with Section

34 IPC.  As noted above, accused-Mukesh died during the pendency of the trial and

accused-Deepak was acquitted of the charges.  

It is interesting to note that the accused Rakesh was convicted only for

offence punishable under Section 324 IPC.  There is no discussion as to why he was

acquitted of charges under Section 302 read with Section 34 IPC.  Be that as it may,

accused Rakesh was found guilty of offence punishable under Section 324 IPC and

the present appellant was held guilty of offence punishable under Section 302 IPC.   

The  appellant's  appeal  before the High Court was  dismissed.   Primary

stand before the High Court was that the place of occurrence has been changed, and

entirely different version as to how the incident took place was given and, therefore,

the prosecution version should  not have  been

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accepted.  The High Court found no substance in the appeal and, as noted above,

dismissed it.  

The stand taken before the High Court is reiterated in the present appeal

by the learned counsel  for  the appellant.  Learned counsel for the respondent-State

supported the judgment of the High Court.

It is to be noted that PW8, the informant on whose evidence trial court and

the High Court placed reliance had categorically stated that it was accused Rakesh

who had attacked the deceased with a sword, and he was not sure as to how the other

two accused persons  including  the present  appellant  attacked the deceased.   The

evidence of PW9  shows that the accused Jitu@Jitender had given a blow on the

belly.  The Doctor found no injury on the belly,  but same was on the back side.  In

this  scenario,  it  would  be  difficult  to  uphold  the  conviction  of  the  appellant  for

offence  punishable  under  Section  302  IPC.   Accordingly,  the  conviction  of  the

appellant is altered to Section 326 IPC.  We find it strange that though the evidence

of PW8 was accepted, no conviction was recorded so far as the present appellant is

concerned  for  the  assaults  made  by  him on  Bhagirath  PW8.   There  are  several

disturbing factors.  Strongly,  the State has not questioned the conviction of Rakesh

for offence punishable under Section 324 IPC and non

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recording of any conviction insofar as the present appellant is concerned in respect of

injuries inflicted by him on Bhagirath PW8.

Considering the nature of injuries, the conviction of the  present  appellant

is altered to one under Section 326    

IPC and custodial sentence of seven years is imposed upon him. It is stated that the

appellant has already undergone the sentence of more than seven years.  If that be so,

he  shall  be  released  from custody  forthwith  unless  required  to  be  in  custody  in

connection with any other case.

The appeal is allowed to the aforesaid extent.

              ...................J.                                (Dr. ARIJIT PASAYAT)   

             ....................J.                          ((ASOK KUMAR GANGULY)

New Delhi, March 05, 2009.