HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 43 Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 2313 of 2006 Petitioner :- Nirmal Singh Respondent :- State Of U.P. Petitioner Counsel :- K.K. Arora,Hawaldar Verma,S.N.Pandey Respondent Counsel :- Govt. Advocate,Umesh.Shankar Hon'ble Shri Kant Tripathi,J.
1. Heard Mr. P.N. Mishra, learned senior counsel for the appellant Nirmal Singh and learned AGA for the State and perused the record.
2. By this appeal the appellant Nirmal Singh has impugned the judgment and order dated 21.03.2006 rendered by Sri P.K. Mishra, the then Additional Sessions Judge, Court No. 5, Rampur in Sessions Trial No. 435 of 2004, State vs. Nirmal Singh & others, whereby the learned Additional Sessions Judge has convicted and sentenced the appellant under section 307 IPC to undergo rigorous imprisonment of ten years and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo additional rigorous imprisonment of one year and further convicted and sentenced him under section 506 IPC to under go rigorous imprisonment of five years. Both the sentences have been directed to run concurrently.
3. The prosecution story in brief is that on 26.5.2004 at about 06.30 PM, the complainant Raju and his father Dhannu Singh were going to their house along with Satish from the shop of Sarvesh. When they reached near the temple, the appellant Nirmal Singh and Co-accused Ganga Ram, Ratan Lal and Balbir arrived there and caught hold of the injured Dhannu Singh and asked the appellant to kill him. On the exhortation so made by the aforesaid co-accused, the appellant assaulted the injured Dhannu Singh with a country made pistol. Consequently, the injured sustained fire arm injuries and fell down. The injured was immediately taken to SWAR Hospital for treatment, and was, thereafter, referred to the District Hospital, Rampur. The complainant Raju lodged the FIR on which basis the police registered the case and investigated the matter and filed charge sheet against the appellant and other accused.
4. The learned trial court framed the charges under sections 307 and 506 I.P.C. against the appellant, who denied the charges and claimed to be tried.
5. The prosecution examined as many as eight witnesses in support of its case. PW-1, Raju is the complainant. PW-2, Dhannu Singh is the injured. Both these witnesses have given eye witnesses account of the occurrence. PW-6 Dr. Subhash had medically examined the injured and proved his following injury:
i.Gun shot wound of entry 3 cm x 2 cm on the right side back of chest 9 cm below left scapula, blackening and tattooing were present around the wound, which was kept under observation and an x-ray was advised and the patient was referred to surgeon.
6. PW-6 Dr. Subhash stated that the aforesaid injury was caused with a fire arm.
7. PW-3, Dr. R.K. Singh had done x-ray of the aforesaid injury and stated that a bullet shaped radio opaque foreign body of mettalic density was seen in the right sided chest wall with surgical emphysema and with hydropneumothorax with collapse right side. This witness further proved the x-ray report Exhibit ka-2.
8. PW-8 Dr. Amit Agrawal was posted as surgeon in Dhanwantari Tomer Hospital, Rampur Garden, Bareilly on 26.5.2004 and had admitted the injured Dhannu Singh in the hospital. He had operated upon the injury sustained by the injured on 27.5.2004 at about 4.00 AM and at that time Dr. Tomer was also present. This witness further stated that on 2.6.2004, he had removed bullet from right side. He further stated that he had given treatment to the injured.
9. PW-7 Dr. Mukesh Kumar was posted in the aforesaid Dhanwantari Tomer Hospital, Rampur Garden, Bareilly. He has proved letters Exhibit ka-12 and Ka-13 showing removal of bullet from the body of the injured.
10. PW-4 Head Constable Ram Singh has proved Chick report Exhibit ka-4 and copy of the G.D., Exhibit ka-5 and also copy of the G.D. Rapat no. 42 of the same day.
11. PW-5, Ajit Singh was the investigating officer. He has proved the site plan Exhibit ka-7 and charge sheet Exhibit ka-10 besides other formal papers.
12. The learned trial court examined the appellant under section 313 I.P.C., who denied the allegations made against him and stated that he obtained a sale deed in favour of his wife, which was recorded as Public Park in the record and an inquiry had also been held in which he and other accused had been summoned by the inquiring officer because in plot no. 196 co-accused Balbir had constructed his house. The injured Dhannu Singh became annoyed on account of the fact that the appellant and other accused were involved in supporting the government version. The injured Dhannu Singh got filed a civil suit on behalf of his wife against the appellant and his brother and due to that enmity the present case was concocted. 13. The learned trial court, on perusal of the evidence on record, found the charges under sections 307 and 506 IPC proved beyond all reasonable doubts against the appellant and accordingly convicted and sentenced him as aforesaid.
14. Other accused have also been convicted and sentenced but it is not clear as to whether they have filed any appeal or not, therefore, the present appeal is being disposed of with the consent of the learned counsel for the appellant and the learned AGA finally.
15. Mr. P.N. Mishra, the learned senior counsel for the appellant submitted that in view of the statements of PW-1, Raju (complainant) and PW-2, Dhannu Singh (injured) and medical evidence of PW-3 Dr. R.K. Singh, PW-6 Dr. Subhash, PW-7 Dr. Mukesh Kumar and PW-8 Dr. Amit Agrawal, the charges under sections 307 and 506 IPC were proved beyond all reasonable doubts and to this extent the finding of the learned trial court was perfectly correctly. Mr. Mishra accordingly contended that he would not press the appeal on merits but submitted that the sentence of ten years rigorous imprisonment in view of the facts and circumstances of the case was not proper. Mr. Mishra submitted that the appellant had no previous criminal history nor he made any repetition of firing and felt satisfied with only one firing, therefore, in view of these mitigating facts and circumstances of the case, the sentences of ten years rigorous imprisonment under section 307 IPC and five years rigorous imprisonment under section 506 IPC were excessive.
16. So far as the finding of guilt with regards to the charges under sections 307 and 506 IPC is concerned, it seems to be perfectly correct. PW-1 Raju, the complainant, who happens to be an eye witness of the occurrence and also his father PW-2 Dhannu Singh, who happens to be the injured, have very categorically supported the prosecution story that it was the appellant who caused the aforesaid injury to the injured Dhannu Singh with a fire arm. In view of the facts and circumstances of the case, there was no reason for the complainant and the injured to falsely implicate the appellant. The statements of the aforesaid eye witnesses have been fully corroborated by the medical evidences given by the aforesaid doctors. In view of adequae evidence on record, I do not find any reason to take a different view, therefore, the verdict of the learned trial court that the charges under sections 307 and 506 IPC were proved beyond all reasonable doubts against the appellant, is perfectly correct and is accordingly affirmed.
17. On the point of sentence, it may be observed that the occurrence in question seems to have taken place on account of a property dispute and civil litigation. The appellant is not a person of any criminal background. The appellant, in whose company, there were allegedly two more accused, was in a position to cause more injuries to the injured but all of them caused only one injury to the injured, though it was on a vital part, therefore, in view of the facts and circumstances of the case and antecedents of the appellant, I consider it just and expedient to reduce the sentence of ten years rigorous imprisonment to seven years rigorous imprisonment passed against the appellant under section 307 IPC and also to reduce the sentence of five years rigorous imprisonment to three years rigorous imprisonment under section 506 IPC. The sentence of fine is however maintained.
18. For the reasons stated above, the appeal is partly allowed. The conviction of the appellant Nirmal Singh under sections 307 and 506 IPC is confirmed. However, the sentence of ten years rigorous imprisonment under section 307 IPC and five years rigorous imprisonment under section 506 IPC are respectively reduced to seven years rigorous imprisonment and three years rigorous imprisonment. Both the sentences shall run concurrently. The sentence of fine is however, maintained. But the sentence of one year rigorous imprisonment in default of payment of fine under section 307 IPC is reduced from one year to six months. However, it is directed that on realisation of fine, an amount of Rs. Eight thousand shall be paid to the injured as compensation.
19. In computing the sentence, the period already spent by the appellant either as under trial or as a convict shall be given due adjustment in terms of section 428 of Code of Criminal Procedure.
20. Let a copy of this judgment along with the lower court record be transmitted forthwith to the learned trial court for immediate compliance.
Order Date :- 3.11.2011 RKSh