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Madhya Pradesh High Court · body

2008 DIGILAW 1285 (MP)

Sheikh Baboo v. State of M. P.

2008-11-04

A.K.SAXENA

body2008
ORDER 1. The appellant has preferred this appeal against the judgment dated 31.3.1995 passed by 1st Additional Sessions Judge, Sagar in Sessions Trial No. 237/94 whereby. the appellant has been convicted under section 304 Part II of IPC and sentenced to seven years rigorous imprisonment. 2. According to prosecution story, on 21.3.1994, Sheikh Ayub and Jamshed were doing their duty in the agricultural field of Chandola. They were trying to keep away the animals from the crop by throwing stones. At that time, the appellant Sheikh Baboo abused both of them and asked as to why they were keeping away the animals by throwing stones. They replied that the animals are damaging the crop. Thereafter, the appellant Sheikh Baboo came out with a gun and threatened them. Jamshed asked him not to abuse and he reached near the house of Sheikh Baboo and in the meanwhile, the appellant Sheikh Baboo kept the gun inside the house and took out another gun and threatened Jamshed. Thereafter, Jamshed caught the barrel of gun but Sheikh Baboo fired a gun shot as a result of which, Jamshed sustained injury on the right thigh. Jamshed sent Sheikh Ayub to Police Station where, he lodged the report Ex. P-2. Thereafter, Jamshed was sent to hospital, but the doctor found that he had already expired. The merg intimation Ex. P-10 was registered in Police Station. The Investigation officer prefared the site plan, Ex. P-3. After preparing the inquest report, he requested the doctor to conduct the post-mortem vide memo Ex. P-12. PW 1 Dr. G.S. Kesharwani conducted the postmortem and handed over his post-mortem report Ex. P-1. 3. The Investigating Officer recorded the statements of witnesses. The gun and 5 cartridges were seized from the house of Sheikh Baboo and seizure memo Ex. P-14 was prepared. After completion of investigation, the charge-sheet was filed. 4. The trial Court came to this conclusion that the offence under section 302 of IPC was not proved beyond reasonable doubt, but instead of that, the offence under section 304 Part II of IPC was proved and the appellant was sentenced accordingly. 5. The learned counsel for the appellant has submitted that it is very much clear from the evidence of PW 2 Sheikh Ayub Ahmed that the incident had taken place all of a sudden. 5. The learned counsel for the appellant has submitted that it is very much clear from the evidence of PW 2 Sheikh Ayub Ahmed that the incident had taken place all of a sudden. The trial Court also considered all the aspects of the case while coming to this conclusion that the offence under section 302 of IPC was not proved beyond reasonable doubt and instead of that, only the offence under section 304 Part II of IPC was proved. The learned counsel for the appellant has further contended that he does not want to argue this case on merits except on the quantum of punishment. He has further submitted that at the time of incident, the appellant was 60 years old and the incident occurred on 31.3.1994. Now, the appellant is aged about 74 years. As per judgment, he remained in jail for one year and nine days. The judgment was passed on 31.3.1995 and thereafter, his jail sentence was suspended on 18.7.1995. It means the appellant remained in jail for more than one year and three months and considering the facts of the case, nature of incident, intention of the appellant and cause of incident, this period of jail sentence is sufficient. The learned counsel for the appellant relied on the cases of Gendalal and others v. State of M.P., 2006 CriLJ 4320 and NamdeoKisan Bhakare v. State of Maharashtra and another, 1996 CriLJ 562. 6. I considered all the aspects of the case. It is very much clear that there was no intention of the appellant to kill Jamshed. The appellant raised an objection in respect of manner in which the deceased and PW 2 Sheikh Ayub Ahmed were trying to keep the animals away from the crop. It appears that the deceased asked the appellant as to why he was abusing and thereafter, he went near the house of the appellant. The appellant went to his house and came out with the gun and then Jamshed sustained the injury. The deceased did not sustain any injury on the vital part of the body. The appellant is aged about 74 years and remained in jail for more than one year and three months. Considering all the aspects of the case, I am of the opinion that this period of jail sentence would be sufficient. 7. For the aforesaid reasons, the appeal is partly allowed. The appellant is aged about 74 years and remained in jail for more than one year and three months. Considering all the aspects of the case, I am of the opinion that this period of jail sentence would be sufficient. 7. For the aforesaid reasons, the appeal is partly allowed. The conviction of the appellant Sheikh Baboo under section 304 Part II of IPC is maintained, but the sentence awarded by the trial Court is reduced to the sentence already undergone. The appellant is on bail. His bail bonds are discharged. The property shall be disposed of in accordance with the order of the trial Court.