HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 43 Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 5006 of 2006 Petitioner :- Raj Kumar Gautam espondent :- State Of U.P. Petitioner Counsel :- V. Singh,D. Tiwari,R.D. Upadhyay Respondent Counsel :- Govt. Advocate Hon'ble Shri Kant Tripathi,J.
1. By this appeal, the appellant Raj Kumar Gautam has impugned the judgment and order dated 11.7.2006 rendered by Mr. P. C. Srivastava, Additional Sessions Judge, Court No.9, Agra in S.T. 304 of 2003, State Vs. Raj Kumar Gautam, whereby the learned Additional Sessions Judge has convicted and sentenced the appellant under section 307 I.P.C. to undergo rigorous imprisonment of ten years and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo additional rigorous imprisonment of one year.
2. The prosecution story leading to this appeal in nutshell is that on 16.6.2003 at about 10:30 a.m., the injured Sunil and few other children were involved in playing cricket in the ground of C.K. Children Academy School, Uttampuri and due to that an altercation took place between the injured and the appellant, consequently, the appellant assaulted the injured Sunil with a country made pistol and thereby caused a fire arm injury to the injured. The injured was immediately taken to the hospital where he was hospitalized, and, thereafter, the First Information Report was lodged. The police registered the case and investigated the matter and submitted charge sheet against the appellant.
3. The learned trial Court framed the charge under section 307 I.P.C. against the appellant who denied the charge and claimed to be tried.
4. To prove the aforesaid charge, the prosecution examined as many as ten witnesses. P.W. 1, Jitendra Sharma, is the complainant who had lodged the F.I.R. This witness has supported the prosecution story in the witness box and has also proved the FIR. as Ext. Ka-1. P.W. 2, Sunil Kumar Sharma is the injured, who has also supported the prosecution story. P.W. 3, Mannu and P.W. 4, Rahul Sharma, are eye-witnesses of the occurrence. They have also supported the prosecution story.
5. P.W. 5, Dr. Ajay Agarwal, had medically examined the injured on 16.6.2003 at 12:10 p.m. and found the following injury on the person of the injured:
"Wound of Entry of 1 " diameter and multiple pallets are seen around the wound of Entry in 3/4" area around central wound, wound is situated on the left side of abdomen, 4" below the left nipple & 2" laleral to mid line abdomen, fresh, bleeding present, margin invested.
No other injury except the above is present on body."
6.P.W.-5, Dr. Ajay Agarwal advised for x-ray of chest and abdomen and opined that the aforesaid injury was caused by a fire arm, which was fresh and grievous in nature.
7.P.W. 6, Sub-Inspector, Deo Singh Yadav had investigated the case, who has proved the site plan Ext. Ka-3 and charge sheet Ext. Ka-5 and recovery of an empty cartridge from the place of occurrence and proved its Fard.
8.P.W. 7, Dr. R.L. Sharma, who was posted as C.M.O., Emergency Department, Medical College, Agra, had medically examined the injured on 16.6.2003 at 1:45 p.m. and noted his injuries in the relevant register, a copy whereof has been proved by him as Ext. Ka-5. P.W. 8, Khajan Singh, has proved the check report Ext. Ka-6 and copy of the G.D. Ext. Ka-7. P.W. 9, Dr. Shunhari Lal had done X-Ray of the chest and abdomen of the injured from the back side. This witness has proved the aforesaid fire arm injury and further stated that in the left lung of the injured liquid was found. He noticed pallets on the left side of the abdomen. This witness has further stated that metallic opaque shadows were also found on the left side of the abdomen. He has further stated that the injury was caused by a fire arm and has also proved the X-Ray report Ext. Ka-8 and X-ray plates material Exts. 1 and 2. P.W. 10, Dr. S.D. Maurya, has proved that the injured was admitted in the S.N. Hospital, Agra on 16.6.2003 and his injury was operated upon under the supervision of Dr. R.K. Mathur. After the recovery, the injured was discharged from the hospital on 7.7.2003. This witness has also proved the discharge slip as Ext. Ka-9. On 29.7.2003, the injured was again admitted in the hospital and was discharged on 30.7.2003. P.W.10, Dr. S.D. Maurya has also stated that on 2.9.2003 the injured was admitted third time in the hospital and further stated that he had also done operation of the intestine of the injured and after that discharged him from the hospital on 20.9.2003. He has proved both the discharged slips Ext. Ka-10 and Ext.-11.
9.The learned trial Court examined the appellant under Section 313 Cr.P.C., who denied the allegations made against him and stated that he was falsely implicated due to enmity.
10.The appellant did not adduce any evidence in defence.
11.The learned trial Court believed the prosecution story and accordingly convicted and sentenced the appellant as aforesaid.
12.I have heard learned counsel for the appellant and the learned A.G.A. for the State and perused the record.
13.Mr. Viresh Mishra, learned senior counsel submitted that he would not press the appeal on merit and contended that imposition of ten years R.I. by the trial Court, in view of the facts and circumstances of the case, was not proper. Mr. Mishra further submitted that the appellant had made only a solitary shot though it hit the injured on his abdomen and there was no repetition of shot. Moreso, the appellant had no criminal history and the incident took place on account of a sudden quarrel. In this view of the matter, the sentence of ten years was highly excessive.
14.It may be mentioned that the occurrence of the present case took place in the broad day light at about 10:30 a.m. and the FIR was lodged without any delay at about 11:25 a.m. on the same day. P.W.-2, Sunil Kumar Sharma, who is the injured, appeared in the witness-box and supported the prosecution story and stated that it was the appellant who shot him with a fire arm, consequently he sustained injuries. P.W. 1, Jitendra Sharma, P.W. 2 Mannu and P.W. 4 Rahul Sharma are the eye-witnesses of the occurrence, who have also supported the prosecution story. The injured as well as the aforesaid eye-witnesses have been cross-examined at length but nothing material could be brought on record to shake their testimonies. Moreso, the medical evidence adduced by P.W. 5, Dr. Ajay Agarwal, P.W. 7 Dr. R.L. Sharma, P.W. 9 Dr. Sunahri Lal and P.W. 10 Dr. S.D. Maurya corroborates the oral testimonies of the injured and the eyewitnesses. The prosecution has thus adduced adequate evidence during the trial to prove the aforesaid charge against the appellant. The learned trial Court has elaborately examined the statements of the witnesses and arrived at the conclusion that their statements were believable. I do not find any reason to take a different view, especially when the learned senior counsel for the appellant did not press the appeal on merit and conceded that the finding of guilt recorded against the appellant was beyond any question.
15.It may not be out of context to mention that the injury sustained by the injured was not only on a vital part but was also dangerous and was even operated upon, therefore, keeping in view the facts and circumstances of the case and the statements of the injured and other witnesses and the medical evidence, it is crystal clear that the appellant had made the assault on the injured with such intention and knowledge and under such circumstances that if the injured had died, the appellant would have been guilty of murder. As such from the facts and circumstances of the case, the offence under section 307 I.P.C. was fully made out against the applicant and the finding of the learned trial court to this extent seems to be perfectly correct.
16.So far as the quantum of sentence is concerned, it seems to be excessive. The appellant has no criminal background and the occurrence in question took place on account of a sudden quarrel. It is alleged that the injured and his associates used to play cricket in the vicinity and the cricket ball hit the window/door of the appellant's house and due to that an altercation took place and the appellant ultimately assaulted the injured with a fire arm. It is also relevant to mention that the appellant did not repeat the shot and feel satisfied with only one shot. In this view of the matter keeping the appellant in jail for a long period would not serve the ends of justice. The sentence of ten years R.I. under section 307 I.P.C. is liable to be reduced to six year R.I.
17.The appeal is partly allowed.
18.The conviction of the appellant-Raj Kumar Gautam, under section 307 I.P.C. is affirmed. The sentence passed by the learned trial Court is modified. The appellant-Raj Kumar Gautam is sentenced under section 307 I.P.C. to undergo rigorous imprisonment of six years and to pay a fine of Rs.15,000/- and in default of payment of fine to undergo additional rigorous imprisonment of six month. The injured shall be paid a sum of Rs. 10,000/- (Rs.Ten Thousand) as compensation, out of the aforesaid amount of the fine.
19.Let a copy of this judgment along with lower court record be sent to the trial court for compliance.
Order Date :- 24.11.2011 Prabhat