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.