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2017 DIGILAW 1005 (MP)

Birjoo v. State of M. P.

2017-09-16

ANURAG SHRIVASTAVA, SUJOY PAUL

body2017
JUDGMENT 1. This appeal, filed under section 374(2) of CrPC, is directed against the judgment dated 29.10.2003 passed in Sessions Trial No.232/2003 by Second Additional Sessions Judge, Sagar. The appellant was directed to undergo life imprisonment and fine of Rs.100/- for the offence punishable under section 302 IPC, whereas he was required to undergo R.I. for one year with fine of Rs.100/- for offence punishable under section 326 IPC. In addition, he was directed to undergo six months R.I. for committing offence punishable under section 324 IPC. 2. Shri S.D. Mishra, learned counsel for the appellant at the outset submits that the charge was framed against the present appellant by the Court below on 23.10.2003. The appellant unconditionally admitted the charge, therefore, the Court below by judgment and order dated 29.10.2003 convicted the present appellant. 3. Criticizing the judgment, learned counsel for the appellant submits that as per the language employed in section 229 CrPC, it is discretion of the Court to punish the accused on the basis of his confession. The discretion vested with the Court does not mean that in all circumstances, the Court is bound to exercise the discretion against the accused. Reliance is placed on a judgment of Guwahati High Court, reported in 2006 CrLJ 1188 (State of Mizoram v. Ramengmawia). To elaborate, it is urged that in the facts and circumstances of this case, Court below should have exercised its discretion in favour of the present appellant and the Court has erred in mechanically exercising its discretion against the present appellant. 4. Shri S.D. Mishra, learned counsel for the appellant has taken pains by reading the FIR and the statements of other witnesses recorded during the remaining part of trial which was conducted after the conviction of the present appellant. Learned counsel for the appellant contended that the story of prosecution reduced in writing in FIR is different than the statements of the witnesses. 5. Shri Neeraj Singh Chouhan, learned Government Advocate, supported the judgment. 6. No other point is pressed by the learned counsel for the parties. 7. We have heard the parties at length and perused the record. 8. It is seen that the charges were framed on 23.10.2003. 5. Shri Neeraj Singh Chouhan, learned Government Advocate, supported the judgment. 6. No other point is pressed by the learned counsel for the parties. 7. We have heard the parties at length and perused the record. 8. It is seen that the charges were framed on 23.10.2003. Although except Birjoo, other accused persons denied the allegations on the said date, in order to give an opportunity to rethink about admission of charge, the Court below granted sufficient time to the present appellant. Thereafter, on 29.10.2003 the appellant admitted the guilt. The unconditional, unequivocal admission of the guilt by the appellant was duly recorded and the Court below has passed the judgment against the accused then and there. We do not find any procedural impropriety in decision making process. 9. So far as the question of exercising discretion is concerned, this is trite law that the Courts are required to exercise their discretion in a judicious manner. In view of clear admission of guilt, we are unable to hold that the Court below has not exercised its discretion in a judicious manner. Thus, this argument advanced by the learned counsel for the appellant must fail. 10. So far as the question on appreciation of evidence/FIR, etc. is concerned, we do not find much merit in the contention of learned counsel for the appellant. Once the appellant admitted the guilt and judgment is passed against him, the trial came to an end so far as the present appellant is concerned. The trial continued against the other accused and evidence recorded in remaining portion of trial against the other accused persons cannot be read for the purpose of present appellant. Thus, this argument is also devoid of merits and cannot be entertained. 11. An ancillary question arises for our consideration is whether the conviction and sentence is in accordance with the admission of guilt by the appellant. The charge framed against the appellant shows that it has ingredients of section 302 IPC. If the charge framed against the appellant is examined in juxtaposition to the charge framed against the other accused persons, it will be clear like noon day that solitary charge against the appellant was in relation to section 302 IPC. The charge framed against the appellant shows that it has ingredients of section 302 IPC. If the charge framed against the appellant is examined in juxtaposition to the charge framed against the other accused persons, it will be clear like noon day that solitary charge against the appellant was in relation to section 302 IPC. Pertinently, the Court below has not even mentioned in the charge framed against the appellant any thing in relation to offences under sections 324 and 326 IPC, whereas the factual foundation of charge in relation to other accused persons does reflect that the charges under sections 302, 324 and 326 were alleged against them. Thus, we are constrained to hold that the present appellant was not charged for committing offences punishable under sections 324 and 326 IPC. Thus, the charge which was admitted as such, cannot be treated to be admission in relation to sections 324 and 326 IPC. Putting it differently, an admission of guilt has to be read in relation to the charge levelled and the offences mentioned therein. In absence thereto, an appellant cannot be convicted for something which was not a charge against him. 12. For these reasons, we deem it proper to interfere into the punishment to the extent it relates to the appellant's conviction under sections 324 and 326 IPC. To this extent, the impugned judgment is set aside and the appeal is partly allowed. Consequently, the sentences recorded by the Court below under sections 324 and 326 are set aside. 13. In view of the aforesaid, the conviction and sentence awarded by the learned trial Court under section 302 IPC is hereby affirmed and so far as sections 324 and 326 IPC, the conviction and sentence is set aside. The appeal is partly allowed.