Saurabh Verma Alias Shailendra ... vs The State Of U.P.
2015 Latest Caselaw 1009 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 42
 
										AFR
 
Case :- CRIMINAL APPEAL No. - 2591 of 2015
 
Appellant :- 	Saurabh Verma Alias Shailendra Verma
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- V.K. Agnihotry
 
Counsel for Respondent :- Govt.Advocate
 
Hon'ble Amreshwar Pratap Sahi, J.

Hon'ble Pramod Kumar Srivastava, J.

1.This appeal has been preferred against the joint judgment of conviction and punishment dated 14.05.2015 passed by Sessions Judge, Kanpur Nagar in S.T. No. 512 of 2012 (State Vs. Saurabh Verma @ Shailendra Verma) in case crime no. 183/ 2012 under section 302, 307, 506, 332 and 353 IPC & Section 7 Criminal Law Amendment Act, p.s. Naubasta, Kanpur Nagar, and S.T. No. 513/2012 (State Vs. Saurabh Verma @ Shailendra Verma) in case crime no. 184 of 2012 u/ss 25/30 Arms Act, p.s. Naubasta, Kanpur Nagar.

2.At the very outset an issue which has been raised about the case being taken up for summary dismissal under Section 384 Cr.P.C. deserves to be considered. Section 384 reads as follows :-

384. Summary dismissal of appeal - (1) If upon examining the petition of appeal and copy of the judgment received under section 382 or section 383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily :

Provided that-

(a) no appeal presented under section 382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same;

(b) no appeal presented under section 383 shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the Appellate Court considers that the appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case;

(c) no appeal presented under section 383 shall be dismissed summarily until the period allowed for preferring such appeal has expired.

(2) Before dismissing an appeal under this section, the Court may call for the record of the case.

(3) Where the Appellate Court dismissing an appeal under this section is a Court of Session or of the Chief Judicial Magistrate, it shall record its reasons for doing so.

(4)Where an appeal presented under section 383 has been dismissed summarily under this section and the Appellate Court finds that another petition of appeal duly presented under section 382 on behalf of the same appellant has not been considered by it, that Court may, notwithstanding anything contained in section 393, if satisfied that it is necessary in the interests of justice so to do, hear and dispose of such appeal in accordance with law.

3. Section 385 would also be relevant and therefore the same is extracted hereinunder :-

"385. Procedure for hearing appeals not dismissed summarily.- (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given-

(i) to the appellant or his pleader;

(ii) to such officer as the State Government may appoint in this behalf;

(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant;

(iv) if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.

(2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court and hear the parties:

Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.

(3)Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not except with the leave of the Court urge or be heard in support of any other ground."

4. While considering the difference in language of Section 384 and 385 Cr.P.C. reference can also be had to the opening words of Section 386 as well which requires that the Appellate Court after perusing such record if it finds that there is no sufficient ground for interfering may dismiss the appeal. This is however to be read in the light of Section 385. The provisions of Section 384 quoted hereinabove allow summary dismissal of appeal only upon examining the petition of the appeal and the copy of the judgment of the trial court. There is however a caveat under sub-section (2) of Section 384 that before dismissing an appeal under the aforesaid section the court "may" call for the record of the case.

5. Learned counsel for the appellant has vehemently urged that in view of the aforesaid provisions and in view of the legislative changes that were brought about while introducing the new Code of Criminal Procedure, 1973 the legislature clearly intends that even in a case of summary dismissal of an appeal the records of the case have to be summoned compulsorily before proceeding to decide the same. He therefore submits that this court may not proceed to dismiss the appeal summarily and do it only after summoning the records as the provision aforesaid is mandatory.

6. In support of his submission, learned counsel has invited the attention of several judgments and the learned A.G.A. has also assisted the court with a couple of judgments. The judgments that have been cited at the bar in support of this contention that the appeal cannot be dismissed summarily without summoning the records are Dagadu Vs. State of Maharashtra, 1981 (2) SCC Page 575 that follows that earlier decision of the Apex Court in the case of Sita Ram Vs. State of U.P. AIR 1979 SC Page 745. At this stage itself we may point out that the aforesaid two decisions were rendered on the reasoning that even though the power of summary dismissal is there under Section 384 and such a dismissal is not violative of any statutory provision, it is desirable that reasons are recorded by the High Court when arguable issues have been raised as that will enable the higher court to appreciate the reasons for rejection of the appeal. Thus, the court emphasises the existence of reasons even while dismissal of an appeal summarily.

7. Then comes the decision in the case of Shivaji Narayan Bachhav Vs. State of Maharashtra, 1983 (4) SCC Page 129 where it has been observed, that except in certain cases when an accused has pleaded guilty and in petty cases, every person convicted of an offence has a right of appeal which may be both against conviction and sentence and on facts and law. In such a situation the Supreme Court observed that a convicted person is entitled to ask an appellate court to reappraise the evidence and come to its own conclusion. However, at the same time the Apex Court observed that the power undoubtedly to dismiss an appeal in limine does exist as provided for under Section 384 Cr.P.C. but such power should be exercised sparingly and with great circumspection, particularly in cases of conviction for murder where a sentence of life imprisonment has been awarded. In that case also the High Court had dismissed the appeal summarily by a laconic expression of 'dismissed' which was treated to be drastic. The Court then went on to hold that a speaking order was desirable and the requirement of recording reasons, however, concise serves to ensure proper functioning of the judicial process. Thus, there also the emphasis was that a summary rejection of an appeal, if by a laconic order, was being disapproved.

8. The said reasoning has been developed in the case of State of Madhya Pradesh Vs. Bhura Kunjda, 2009 (17) SCC Page 346. The Apex Court in that decision which is a three Judges decision referred to the earlier decision of a Supreme Court in the case of Amar Singh Vs. Balwinder Singh, 2003 (2) SCC Page 518 and quoted para 7 of the said judgment with approval. It was indicated therein that while reversing a judgment it is mandatory for the appellate court to peruse the records which will necessarily mean the statement of witnesses. It was also observed that in a case based on direct eye witness account, the testimony of eye witnesses is of paramount importance and if the appellate court reverses the finding recorded by the trial court resulting in acquittal of the accused without considering such testimony, the same would violate the opening words of Section 386 Cr.P.C. In the judmgent in the case of State of M.P. Vs. Bhura Kunjda (supra), the trial court had convicted the accused under the NDPS Act, but the High Court partly allowed the appeal by reversing the sentence without assigning any statutory reasons by a short and cryptic judgment. It was also in that context that the Supreme Court made the aforesaid observations.

9. We have also come across the judgment in the case of Jeetu @ Jitender and others Vs. State of Chhattisgarh, 2013(11) SCC Page 489 where again the same situation had arrived where the High Court had reduced the sentence without recording any reason on the issue of correctness of the conviction. The Court referred to the previous decisions of the Apex Court and then went on to hold that when a convicted persons prefers an appeal he has a legitimate expectation to be dealt with in accordance with law and as such it was the obligation of the High Court to decide an appeal on merits and not merely proceed on the concession of a counsel and deal with the sentence and reduce the same. It is in the said background that the aforesaid observations were made by the Apex Court. The said observations have again been reiterated in the case of State of M.P. Vs. Madanlal, Criminal Appeal No.231 of 2015, decided on 1.7.2015. In this judgment also the observations made in the case of Amar Singh (supra) were restated and quoted with approval as in the case of State of M.P. Vs. Bhura Kunjda (supra). The Apex Court further referred to a three Judges decision in the case of K. Anbazhagan vs. State of Karnataka and others, Criminal Appeal No.637 of 2015 that emphasises the existence of reasons while dismissing or allowing an appeal. We having perused the said judgments and having discussed the ratio hereinabove clearly find that the judgments do not prohibit the summary dismissal of an appeal and rather indicated the observance of due caution and care while invoking the provisions of Section 384 Cr.P.C.

10. At this stage, we may refer to the meaning of the words "summary" and "summarily" as used in Section 384 Cr.P.C.

11. The word "summary" means something that is done quickly and without formality or ceremony. This connotes the performance of something at once instead of referring to any further formalities. In legal parlance, the word is applied to the proceedings in a court of appeal carried out by the omission of certain formalities required by common law, for example in a Court Martial proceeding. The method is abridged in order to avoid any delay. The process is immediate and instantaneous and not in ordinary course brooking any further delay. It is a short and quick remedy instead of an elaborate process being adopted. The aforesaid words "summary" which implies a short and quick procedure came up for consideration before the Apex Court in the case of Mohan Lal Vs. Kartar Singh and others, 1995 Supp (4) SCC Page 684 684 where the word "summary" in the context of the powers of a Collector in a dispute relating to land reforms was interpreted in paragraph 13 as follows :-

..........................

x x x x The word 'summary' implies a short and quick procedure instead of or, as an alternative to, the more elaborate procedure ordinarily adopted or prescribed for deciding a case. The proceedings before a court, tribunal or an authority are called summary proceedings if it is not required to follow the regular formal procedure but is authorised to follow a short and quick procedure for expeditious disposal. x x x

12. The Apex Court in another decision in the case of Uttar Pradesh Avas Evam Vikas Parishad Vs. Sheo Narain Kushwaha and others, 2011 (6) SCC Page 456 explained the distinction between a summary decision as against a non-reasoned dismissal. The observations of the Apex Court in paragraph 13 of the said decision is extracted hereinunder:-

x x x x "Summary decision" refers to a decision which is a short and quick and not elaborate. But it does not mean "non-reasoned dismissal", as any order appealable in law has to be reasoned. A dismissal in limine refers to dismissal at the outset. Summary dismissal or dismissal in limine does not refer to a dismissal without assigning reasons."

13. In view of what has been indicated above and the law laid down by the Supreme Court regarding powers of Section 384 Cr.P.C., we find that sufficient grounds and reasons should be stated for not interfering with the judgment of the trial court which would depend upon the issues that have been raised. The statute does not bar a summary dismissal of the appeal if the aforesaid conditions are fulfilled.

14. We therefore now proceed to examine this appeal and the arguments advanced by the learned counsel for the appellant on the anvil of the ratio above mentioned.

15. The prosecution case in brief was that on 29.03.2012 one Ramnath Verma had given an application against his son Saurabh Verma (accused appellant) for manhandling, causing hurt, and using abusive language. On this application in-charge of police station outpost Naubasta, S.I. Devendra Kumar had summoned both parties through constable Mohan Das Baghel (PW-8). Both parties came at police outpost, Naubasta at 10:40 p.m. in the night and started putting their version. During these talks Saurabh Verma had started misbehaving with his father on which police personnels asked him to refrain. During talks, at about 11:00 p.m., Saurabh Verma took out his licensed revolver and fired at S.I. Devendra Kumar in his head. Due to this injury S.I. Devendra Kumar died immediately. When constable Mohan Das Baghel moved forwarded to save him, accused again fired on him and this shot hit the hand of Mohan Das Baghel. After hearing the sound of fire, constable Radha Charan Dubey (PW-7), constable Ram Gopal and others came inside the room of incident and nabbed the Saurabh Verma with his revolver. Constable Satyabhan Singh (PW-1, informant) lodged the report of the incident in p.s. Naubasta on the basis of which, case crime no. 183 of 2012 u/ss 302, 307, 506, 332, 353 IPC & 7 of Criminal Law Amendment Act, and also case crime no. 184 of 2012 u/ss 25/30 Arms Act were registered against accused. After investigation, charge sheet was filed in this case.

16. In Sessions Court, the accused-appelant was charged with offence u/ss 302, 307, 506, 332, 353 IPC, & section 7 Criminal Law Amendment Act and u/ss 25/30 Arms Act. Accused pleaded not guilty and claimed to be tried. Then prosecution side had examined PW-1 constable Satyabhan Singh (complainant), PW-2 R.P. Tripathi (Addl. City Magistrate for preparing inquest report/ panchayatnama and other documents for sending the dead body of the deceased), PW-3 Constable Awadh Bihari (for proving the copy of G.D., Ex Ka-7), PW 4 Dr. Gyan Prabhakar (for proving the post mortem and post mortem report, Ex-Ka-6), PW-5 Constable Mahipal Singh (for proving chik FIR, GD and material exhibit revolver and four live cartridges and two empty cartridges), PW-6 S.I. Bhanu Datt Dwivedi (for proving recovery of revolver and cartridges and its recovery memo), PW-7 Constable Ram Charan (for proving the recovered revolver and live as well as empty cartridges and its recovery memo), PW-8 Constable Mohan Das Baghel (injured witness), PW-9 Constable Shiv Kumar Dubey (for proving docket), PW-10 Dr. R.L. Mahip (for proving medico legal injury report, Ex Ka-14 of injured Mohan Das Baghel ), PW- 11 Dr. Anil Kumar (for proving injury report of S.I. Devendra Kumar before his death), PW- 12 Dr. Jayant Kumar Verma (for proving BHT of S.I Devendra Kumar before his death), PW-13 V.K.Rai (investigation officer) and PW- 14 S.I. Daya Mahesh (for proving material exhibits of the case).

17. After closure of the prosecution witnesses statments of accused under Section 313 Cr.P.C. was recorded and its relevant portion is reproduced as under:

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18. Accused had also examined DW-1 Dr. N.C. Tripathi and DW-2 Ram Nath Verma (father of the accused) in defence.

19. After affording opportunity of hearing and considering the facts, circumstances and evidences of both the sides, learned Sessions Judge had passed the impugned judgment dated 14.05.2015, by which accused was convicted only for the charges under Section 302, 307, 332 IPC and Section 30 Arms Act. Accused was acquitted for other charges. Thereafter, trial court had heard the accused and his counsel on the point of quantum of sentence and passed the sentence aby which accused was acquitted from the charges of sections 506, 353 IPC and section 7 Criminal Law Amendment Act & section 25 Arms Act; but was convicted for the charges u/ss 302, 307, 332 IPC and section 30 Arms Act. By this judgment accused appellant was sentenced with imprisonment for life and fine of Rs. 25000/- (in default of payment 2 years' furhther imprisonment) charge under Section 302 IPC, rigorous imprisonment for 7 years and fine of Rs. 10,000/- (in default of payment one year's further imprisonment), for charge u/s 307 IPC, rigorous imprisonment of one year and fine of Rs. 5,000 (in default of payment six months' further imprisonment) for charge under Section 332 IPC, and imprisonment for six months and fine of Rs. 1,000/- (default of three months' further imprisonment) for charge under Section 30 Arms Act. It was also directed in the judgment that all sentences would run concurrently. Aggrieved by this judgment of conviction and punishment, present appeal has been preferred by the accused appellant.

20. Sri V.K. Agnihotri, Advocate appeared on behalf of the appellant, and State was represented by AGA at the time of hearing on admission of appeal. We have heard the rival contentions and perused the contents of the appeal as well as the impugned judgment.

21. Learned counsel for the appellant contended that the FIR mentions a procession on the road at the time of incident, but no evidence was adduced by the prosecution side on this point. He also contended that the firearm used in the charged act was not shown to every witness of facts. It was also contended by the appellant's side that there was no intention of the appellant to use his revolver or harm anyone by it, but due to the scuffle that ensued it went off and the shots hit the sub inspector and constable. Had the policemen not started snatching the revolver it would not have fired. It is not a case of murder but is that of accidental firing. Therefore there is a strong probability of doubt about the prosecution story. The appeal should therefore be admitted and allowed.

22. The arguments of the appellant side was refuted by learned AGA who contended that admittedly the revolver was in the hand of the accused appellant when it was fired twice. One fire had hit the head of deceased sub-inspector and the other fire had injured the hand of the constable. The death of S.I. Devendra Kumar and injuries of constable Mohan Das Baghel (PW-8) by revolver of the appellant are admitted facts. Had there been no intention to use the weapon, it would not been fired twice by the appellant. He also contended that the Forensic Science Laboratory had confirmed the death of the deceased sub-inspector by a bullet fired from the revolver of the appellant. It is not a case of accident but is a case of deliberate murder by the accused whose overt acts are more serious in nature because he is a practicing advocate; therefore the appeal should not be admitted.

23. We have heard rival contentions and gone through the entire contents of the appeal and the judgment.

24. It is an admitted fact that on 29.03.2012, the appellant Saurabh Verma @ Shailendra Verma, Advocate was present in the police station with his father because his father had made a complaint against him in the police station. It is also admitted that on the same day at about 11:00 pm in the night, appellant carried with him his licensed loaded revolver, and by firing of this revolver sub-inspector Devendra Kumar was killed and another fire of the same revolver had hit and injured one constable Mohan Das Baghel (PW-8), on whose left hand firearm entry and exit wound were found which were bleeding at the time of medico-legal examination by doctor (PW-10) soon after the incident. PW-11 Dr. Anil Kumar had also examined the victim SI Devendra Kumar soon after the incident and proved the injury report (Ex-Ka-15) in which fourth injury was lacerated wound of 3 cm X 4 cm above left eye, from which brain material was coming out with profuse bleeding. He opined that this injury was of firing. PW-4 Dr. Gyan Prabhakar had performed post mortem of dead body of S.I. Devendra Kumar and proved the external and internal injuries and proved that cause of death was due to firearm injury and time of death was 30.03.2012 at about 11:00 p.m.

25. Apart from it, eye witnesses of fact including injured witnesses constable PW-8 Mohan Das Baghel had proved that the appellant and his father were summoned by the deceased sub-inspector at the police out-post for settling their disputes and then the accused had fired that hit on the head of deceased S.I. Devendra Kumar and thereafter fired at constable Mohan Das Baghel. From the injuries of eye witness as well as formal evidence of doctors' medical report and Forensic Science Laboratory, it is proved that deceased S.I. Devendra Prasad was killed by the shots fired from the revolver, which was held by accused appellant Saurabh Verma in his hand; and it is also proved that by the fire of same revolver constable Mohand Das Baghel was injured.

26. It is pertinent to mention that these facts had not been denied during the trial of the accused-appellant who had taken the plea that S.I. Devendra Kumar and constable Mohan Das Baghel had tried to snatch his revolver and in this scuffle revolver was accidentally fired causing injuries S.I. Devendra Kumar and Mohan Das Baghel. We may also point out that such an admission on behalf of the accused himself can be clearly co-related to the provisions of the Indian Evidence Act, 1872. The sole defence of the accused-appellant during trial was that he had no intention to fire from his weapon and it was an accidental fire when the scuffle started at the time of snatching the revolver by deceased and injured. During his statement under Section 313 Cr.P.C., the accused-appellant had admitted the place of incident and the injuries caused to the deceased, S.I. Devendra Kumar and constable Mohan Das Baghel by his revolver. It was not only proved by the prosecution evidences but was admitted also during the defence that these facts relating to charged incident are correct that on 29.03.2013 at about 11:00 a.m. at police outpost Naubasta, S.I. Devendra Kumar and constable Mohan Das Baghel were injured by the shots of revolver held in the hand of accused appellant. In these facts and circumstances, burden of proving the defence version of alleged firing by accident shifted on appellant.

27. First defence witness DW- 1 Dr. N.C. Tripathi had also proved that injuries on the body of deceased were possible from firing of revolver. He also stated that if a scuffle is going on then such injuries are possible, if a revolver is fired. The testimony of DW-1 had also supported the manner of the incident described by the prosecution side about the death of deceased S.I. Devendra Kumar by fire of the revolver held by the appellant. This witness DW- 1 had not examined the injuries of PW-8 Monhan Das Baghel and was not in a position to give any evidence regarding his injuries. DW-2 Ram Nath Verma is father of the accused who had also confirmed the firing at S.I. Devendra Kumar and Constable Mohan Das Baghel by the revolver of accused-appellant at police out-post Naubasta, as mentioned in the charge.

28. The evidence adduced by the defence side in fact had also proved the prosecution case regarding charges. It was defence of accused that deceased and injured constable (PW-8) had tried to snatch his revolver and in scuffle, then it was fired on S.I. Devendra Kumar and constable Mohan Das Baghel. Had there been no intention to use this revolver then it would have not been carried by the appellant before the incident. Only some complaint was made by Ram Nath Verma against his son (accused), but infact no criminal case was registered. There was no occasion for anyone to snatch the revolver of the accused, who was also an advocate, without any case being registered. The firing in the present case supports the prosecution version that during talks before the deceased and injured at the police outpost, the appellant was outraged with anger and fired at the deceased and injured. It is pertinent to mention that if it would have been a case of simple scuffle and accidental firing then after hitting of the first shot in the head of S.I. Devendra Kumar, accused would have stopped. But in the present case after having shot the deceased by a fire of the bullet of his revolver, the appellant fired again on PW- 8 Mohan Das Baghel from a close range. The second shot fired makes it explicitly clear that the intention of the appellant was deliberately causing fatal injuries to the victims by firing. Such firing had the clear effect of causing death of the injured in ordinary course. Thus this case in our opinion is a matter of unimpeachable evidence and the arguments of Sri Agnihori could not satisfy us about any perversity in the judgment so as to take a different view than that of the trial court. The sequence of events and the incident as disclosed in the evidence and discussed hereinabove are clearly believable for the reasons aforesaid. Learned counsel could not create any wedge or dent in the findings recorded and therefore we also find the accused of having committed the offence.

29. Therefore there appears to be no error in the conclusion drawn that offences under section 302 and 307 were committed. The burden of proving the defence case regarding accidental firing was on the accused-appellant but he had failed to prove it. Even his defence witnesses had supported the prosecution story as discussed above. Since the offence against the victims were committed during the course of their official duties, and a licenced revover was used, therefore offence under section 332 IPC and section 30 Arms act is also proved. The prosecution witnesses had proved the charges u/ss 302, 307, 332 IPC & section 30 Arms Act beyond any doubt. The accused was arrested on the spot with the firearm utilised for the commission of the offence. Doctor had proved the post-mortem report and the medico-legal injury reports and their testimony had proved the prosecution case. Forensic Science Laboratory report had proved the death of Devendra Kumar by injury of firing shot from the revolver of accused. The accused appellant had failed to prove his defence case. Therefore a perusal of judgment of the trial court reveals that there is no factual or legal error in it. It was proved that accused appellant had murdered Devendra Kumar and attempted to murder Mohan Das Baghel when they were discharging their official duty in police outpost Naubasta. He had committed this offence by using his licensed revolver. Therefore, there appears to be no error in the judgment of conviction of accused appellant for charges under sections 302, 307,332 IPC and Section 30 Arms Act. Said judgment is confirmed. After conviction, the trial court had given opportunity of hearing on the point of quantum of sentence and thereafter sentences which appear to be appropriate. There is no reason to doubt the factual, legal or procedural correctness of the impugned judgment .

30. Having traversed the entire facts and having considered every argument advanced by the learned counsel for the appellant we find that no perversity has been pointed out in the recording of facts by the trial court in the impugned judgment. To the contrary, the testimony and the cross-examination of the appellant himself who is also an Advocate clearly indicates the occurrence of the incident and on the basis of his statement and cross-examination no other view is possible than that which has been taken by the trial court.

31. We may also clarify at this stage that in matters of admission of a criminal appeal where the court is proceeding in the light of Section 384 Cr.P.C., it is the duty of the appellant and his counsel to obtain documents on which reliance is placed in terms of sub-section (5) of Section 363 of the Code of Criminal Procedure, in the event any perversity is sought to be pointed out in the recording of facts or evidence by the trial court in its judgment. It is then only that a point so raised can be appreciated. In the instant case however no such material was pointed out or filed or produced by the learned counsel for the appellant to substantiate his submissions.

32. In these circumstances, we find no sufficient ground for interfering in the impugned judgment. Accordingly in exercise of powers under Section 384 Cr.P.C. of this Court, this appeal is dismissed summarily.

Dated :- 6.7.2015

Sanjeev