JITU @ JITENDERversusSTATE OF M.P.

                       [2009] 3 S.C.R. 1158
                                                                       ..
                                                                        _


A                       JITU @ JITENDER
                                v.
                          STATE OF M.P.
                (Criminal Appeal No. 679 of 2006)
                         MARCH 5, 2009
B
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.]

        Penal Code, 1860 - s. 326 - Trial of accused with 3 co-
C accused - For causing murder and causing injuries - Injured
  eye-witnesses to the incident - Conviction of the accused u/
  s. ·302 /PC - Held: In view of the evidence of eye-witnesses
  and the nature of injuries on the deceased, conviction altered
  to one u/s. 326 - Custodial sentence of seven years imposed.
D
        Appellant-accused, alongwith three co-accused was
  tried u/ss. 302/34 and 324/34 IPC for having caused death
  of one person and causing injuries to three eye-
  witnesses. One of the co-accused died during trial. Trial
E court relying on the evidence of injured eye-witnesses
  convicted appellant-accused u/s. 302 IPC and convicted
  accused 'R' u/s. 324 IPC. Another co-accused was                 (
  acquitted. High Court dismissed the appeal of the
  appellant-accused. Hence the present appeal.

F       Partly allowing the appeal, the Court

       HELD: PWB, the informant on whose evidence trial
  court and the High Court placed reliance had
  c1ategorically stated that it was accused 'R' who had
G attacked the deceased with a sword, and he was not sure
  as to how the other two accused persons including the
  ~ppellant attacked the deceased. The evidence of PW9
  shows that the appellant accused had given a blow on
  the belly. The Doctor found no injury on the belly, but
H                              1158
-   .,
                   JITU @ JITENDER v. STATE OF M.P.


         same was on the back side. In this scenario, it would be
                                                                      1159


                                                                              A
         difficult to uphold the conviction of the appellant for
         offence punishable under Section 302 IPC. Considering
         the nature of injuries, the conviction of the appellant is
         altered to one u/s. 326 IPC and custodial sentence of
         seven years is imposed upon him. [Paras 7 and 8] [1160-              B
         G, H; 1161-A; 1161-D]

             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
         No. 679 of 2006.

             From the Judgment and Order dated 7.7.2005 of the High           c
         Court of MP Criminal Appeal No. 927 of 1999.

              Triloki Nath Razdan, Smriti Razdan for the Appellant.

               Sidhartha Dave, Jemtiben AO and Vibha Datta Makhija
         for the Respondent.                                                  D

              The Judgment of the Court was delivered by

              DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
         to the judgment of a Division Bench of the Madhya Pradesh
                                                                              E
         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
                                                                              F
         pendency of the trial, while another accused Pappu@Deepak
         was acquitted by the trial court.

              2. 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 Bhagirath        G
         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,         H
A
    1160      SUPREME COURT REPORTS                [2009) 3 S.C.R.


    conviction, so far as accused Rakesh and present appellant-
    Jitu@ Jitender are concerned.
                                                                          -
         3. 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.
B   a~cused-Mukesh died durin~1 the pendency of the trial and
    aqcused-Deepak was acquitted of the charges.

         4. It is interesting to note that the accused Rakesh was
    convicted only for offence punishable under Section 324 IPC.
C   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.
D
         5. The appellant's appeal before the High Court was          '
    dismissed. Primary stand before the High Court was that the
    pl~ce of occurrence has been changed, and entirely different
    version as to how the incident took place was given and,
E   therefore, the prosecution version should not have been
    accepted. The High Court found no substance in the appeal
    and, as noted above, dismissed it.

         6. The stand taken before the High Court is reiterated in
    the present appeal by the learned counsel for the appellant.
F   Learned counsel for the respondent-State supported the
    judgment of the High Court.

         7. It is to be noted that PW8, the informant on whose
    evidence trial court and the High Court placed reliance had
G   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.
H   The Doctor found no injury on the belly, but same was on the
                    JITU @ JITENDER v. STATE OF M.P.                1161
.,                        [DR. ARIJIT PASAYAT, J.]
     ..    back side. In this scenario, it would be difficult to uphold the A
           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 B
           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
           recording of any conviction insofar as the present appellant is
           concerned in respect of injuries inflicted by him on Bhagirath c
           PW8.

                8. 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 D
     ""    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.

               9. The appeal is allowed to the aforesaid extent.           E
           K.K.T.                                 Appeal partly allowed.
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