Arjun Kumar alias Boby vs State of Madhya Pradesh

B.D. Rathi, J.—This appeal u/s 374(2) of the Code of Criminal Procedure, 1973 (in short "the Code") has been preferred by the appellant being aggrieved from the judgment of conviction dated 30-06-1998 passed by learned First Additional Sessions Judge, Gwalior in S.T. No. 264/1988, whereby appellant has been convicted u/s 302/34 of Indian Penal Code (in short "IPC") and sentenced to undergo Life Imprisonment with fine of Rs. 500/- with default stipulation. The prosecution story, in brief, is that on 26-05-1998 at about 8:30 pm at Jangipura, Dabra District Gwalior on account of previous dispute of removing the tree belonged to Sheetal Prasad (since deceased) by daughter of Arjun Singh (appellant No. 2), appellants have assaulted Sheetal Prasad by using sharp edged weapon-knife. FIR Ex-P/12 was lodged on the same day. Crime No. 118/1998 was registered at police station Dabra District Gwalior. During treatment, Sheetal Prasad had died. After completion of investigation, charge-sheet was filed in the matter.

During trial, the charge u/s 302/34 IPC was framed. The accused persons pleaded not guilty to the charge and contended that they had been falsely implicated.

Arjun Singh (appellant No. 2) has died during pendency of appeal before this Court, hence this appeal to the extent of appellant No. 2 (Arjun Singh) stands abated vide order dated 29-10-2013.

It is argued by learned counsel that appellant-Kapil does not want to press his appeal against the conviction, as it is well merited. It was further submitted that the appellant-Kapil was juvenile on the date of incident, and even on conviction he cannot be sent back to the jail to suffer remaining part of jail sentence, in view of the principle laid down by the Apex Court in the case of Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, , Vijay Singh Vs. State of Delhi, , Upendra Kumar Vs. State of Bihar, , Hari Ram Vs. State of Rajasthan and Another, and Kalu @ Amit Vs. State of Haryana, .

Learned Public Prosecutor on the other hand defended the conviction and sentence of the appellant-Kapil.

To bring home the charge prosecution has examined as many as 12 witnesses, namely, Babulal Shrivastava (PW-1), Harprasad Sharma (PW-2), Dr. S.K. Saxena (PW-3), Lakhan Singh (PW-4), Naresh (PW-5), Mukesh Kumar (PW-6), Pradeep Kumar (PW-7), Sanjeev Kumar Mishra (PW-8), Asha Devi (PW-9), Chandrapal Singh (PW-10), Rambaran Singh (PW-11) and Hukum Singh Yadav (PW-12) and in defence Jahur Veg was examined by the appellant as DW-1.

Having regard to the arguments advanced by the parties, we have perused the entire evidence and material available on record as well as the impugned judgment of trial Court.

After taking into consideration the evidence of all the prosecution witnesses, it was held by the trial Court that murder of Sheetal Prasad was committed by Arjun Singh (died during pendency of this appeal) and Boby alias Kapil Kumar. We have also gone through the evidence of the aforesaid witnesses and all the witnesses have categorically deposed that on account of removing of tree belonged to Sheetal Prasad by the daughter of Arjun Singh, the appellants had assaulted Sheetal Prasad, inflicted injuries by knife blow and Sheetal Prasad had died during treatment. In the aforesaid premises, in our considered opinion, the impugned conviction and sentence of trial Court is well merited.

So far as sentence part of appellant-Kapil is concerned, in view of order dated 15-04-2013 passed by this Court, enquiry report dated 12-07-2013 has been received from the Court of First Additional Sessions Judge, Gwalior and as per the report, on the date of incident i.e. on 26-03-1988, appellant-Kapil was 17 years 6 months and 21 days'' old, meaning thereby he was juvenile on the date of incident, therefore, in the light of principle laid down by the Supreme Court in the judgments cited above, appellant-Kapil cannot be sent back to jail to suffer remaining part of jail sentence. He has already undergone more than one and half years'' jail sentence therefore, the remaining part of jail sentence is hereby set aside. With the aforesaid, this appeal is decided accordingly. Copy of this judgment along with the record be sent to the trial Court for information and necessary compliance. Appellant-Kapil is on bail, his bail bonds stand discharged.