Rakesh Tiwari vs State of M.P. & Ors.

[1] This Criminal Appeal has been filed under Section 374 of Cr.P.C. against the judgment of conviction dated 09.09.2000 passed by the Sessions Judge, Indore in ST No.56/98; whereby learned Sessions Judge found appellants guilty for the offence punishable under Section 307 read with Section 34 of IPC and sentenced them for 5 years rigorous imprisonment along with a fine of Rs.500/- each and in default of payment of fine sentenced for further six months' imprisonment.

[2] According to the prosecution story, on 17.11.1997, at about 1.40 p.m., when complainant Manish was going towards Babu Murai Colony, on the way near Bajpayee Petrol Pump, Indore appellants met him and appellant Sunil caught his hands and appellant Narayan assaulted him by knife on back. Manish sustained injuries on his back. Appellants also threatened to kill him. After the incident Manish lodged the report of incident at P.S.

Malharganj, Indore. On that report police registered Crime No.535/1997 for the offence punishable under Section 341, 324 and 506-B read with Section 34 of IPC and investigated the matter. During investigation Police got complainant Manish medically examined, prepared spot map and recorded case diary statement of Manish. On 18.11.1997, appellant Narayan was arrested and arrest memo Ex.P/5 was prepared and after arrest he was interrogated and on his information knife was recovered from their possession and information memo Ex.P/3 and seizure memo Ex.P/4 were prepared. On 29.11.1997, appellant Sunil was arrested and after investigation chargesheet was filed before the Judicial Magistrate First Class, who committed the case before the Sessions Judge. On that, charge-sheet ST No.56/1998 was registered. Learned Sessions Judge, Indore framed charge against appellant for the offence under Section 307 read with Section 34 and 506-II of IPC and tried the case. During trial on compromise between the complainant and appellant learned trial court acquitted appellants for the offence under Section 506-B of IPC and only tried the appellants for the offence punishable under Section 307 read with Section 34 of IPC. Although appellant took defence that they were innocent and have falsely been implicated in the crime but after trial learned trial court found appellant guilty for the offence punishable under Sections 307 read with Section 34 of IPC and sentenced them for 5 years rigorous imprisonment along with a fine of Rs.500/- each. Being aggrieved from that judgment appellant filed this appeal.

[3] Although apart from the quantum of sentence, appellants in this appeal also challenged the legality of conviction but during the course of arguments learned counsel for the appellants submits that he does not want to press the appeal on the findings of conviction. Otherwise also from the evidence produced by the prosecution finding of conviction of trial court under Section 307 read with Section 34 of IPC of appellants appears to be correct, so finding of conviction of trial court is affirmed.

[4] On the point of sentence learned counsel for the appellants submitted that appellants/accused were facing trial since 2000 and they are first offender and during trial of the case appellant Narayan remained in jail for about 72 days and appellant Sunil for about 61 days and no incident of bad behaviour or uncooperative attitude was reported against the appellants. A cross-case against complainant was also registered from the report of appellants, in which complainant was acquitted by the trial court on the basis of compromise. Complainant also compromised with appellants in the case, so they be released on sentence already undergone.

[5] Certainly pre and past incident conduct of appellants cannot be lost sight and can be taken as mitigating circumstance. According to arrest memo at the time of incident appellants were of 19 and 21 years of age respectively and have been facing trial since 2000.

Complainant sustained only two injuries in the incident. One penetrated wound and one abrasion on his back, which is not a vital part of the body. Regarding incident a cross-case has been registered against complainant Manish, as admitted by the complainant in his cross-examination. It is also appeared from the record that complainant also filed a compromise application in the case and appellants were acquitted from the charge under Section 506 Part-II of IPC on the basis of that compromise. So looking to these facts and circumstances, the substantive sentence of imprisonment of appellants awarded by the trial court under Section 307 read with Section 34 of IPC is altered from 5 years' rigorous imprisonment to the imprisonment period already undergone for the aforesaid incident. The impugned judgment and orders of the trial court dated 09.09.2000 passed in S.T.

No.56/98 is modified. Accordingly this appeal is partly allowed in the terms indicated above.

The appellants were on bail, so their bail bonds

are discharged.

Copy of this judgment be sent to the court of Sessions Judge, Indore for information and necessary compliance.