Ramcharan vs State Of U.P.
2015 Latest Caselaw 1013 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 43
 
Case :- CRIMINAL APPEAL No. - 732 of 2012
 
Appellant :- Ramcharan
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- G.R.S. Pal,Abhay Raj Singh
 
Counsel for Respondent :- Govt. Advocate  
 
                      
 
			Connected with
 
Case :- CRIMINAL APPEAL No. - 624 of 2012
 
Appellant :- Krishna Pal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.P.S. Chauhan
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ramesh Sinha,J. 

1. Heard Sri Abhay Raj Singh, and Sri R.P.S. Chauhan, learned counsel for the appellants and Sri R. K. Maurya, learned AGA appearing for the State and perused the record.

2. With the consent of learned counsel for the appellants, both the appeals are being heard and decided finally, as the appellant Ramcharan stated to be in jail since 08.02.2012 and he has already served out four years four month in jail as under trial and after his conviction out of 7 years, and appeal is not likely to be heard in future and would become infructuous.

3.That present appeals have been filed against the common judgment and order dated 08.02.2012 passed by the Additional Sessions Judge, Court No.7, Budaun in Session Trial No. 1122 of 2006, convicting and sentence the appellants to under go seven years R.I. and a fine of Rs. 7000/- each under Section 307/34 IPC and in default of payment of fine appellants shall further under go seven months simple imprisonment. Hence the aforesaid two appeals are being decided by this common judgment.

4. The brief facts as emerges out from the first information report is that on 18.08.2004 at about 6.00 a.m. in the morning, the informant Sevaram younger brother Ramveer had gone to throw garbage at a place, where the accused Ramcharan son of Pothiram objected for throwing the garbage there and started abusing him, on which the brother of the informant had made a complaint to the family members after returning of the house. Thereafter the accused Ramcharan and his brother Rakshpal and one Krishna Pal son of Brahmpal of the village went to the house of the informant, and accused Ramcharan armed with country made pistol, Rakshpal armed with Bhala and Krishna Pal armed with lathi, on the exhortation of Krishna Pal, Ramcharan fired at the father of the informant namely Devilal, which hit him on his chest, on which he was injured and had fallen. On the alarm raised by the witnesses Krishnapal son of Nathulal, Itwarilal son of Munshilal and other, the accused after abusing them had fled towards their house.

5. A FIR was lodged on the basis of a written report given by informant Sevaram at the Police Station, Moosajhag, which was registered as Case Crime No. 270 of 2004, under Section 307, 504 IPC, on the same day at 7.30 a.m., which was at the distance of 8.00 km. away from the place of occurrence and the same was also endorsed in G.D. of the concerned Police Station. A written report was marked as Ex. Ka-1 and FIR as Ex. Ka-5. A Chitthi Majroobi was also prepared by the police, of the injured Devilal, who was send for medical examination, as Ex. Ka-7.

6. P.W.-3 Dr. R.S. Yadav has medically examined the injured Devilal on 18.08.2014 at about 9.30 a.m. and prepared his medical report, as Ex. Ka-2 and found following injuries on his person:-

"Injury No.1, lacerated wound 3X15 c.m. probing not done on the left side chest near nipple, 10.00 c.m. below from the right clavicles. Kept under observation and advised for X-ray Skull and Chest, P.A. view, Bleeding present."

7. In order to form an opinion regarding nature of the injuries, X-ray of chest was advised and the duration of injuries was fresh.

8. On 19.08.2004 P.W.-7 Dr. T. N. Sharma Radiologist performed the X-ray of chest of the injured Devilal, and it was found that a single big metallic shadow seen on right side of chest, middle zone of lung hazy, which was marked as Ex. Ka-13.

9. On the basis of X-ray report and X-ray plate prepared by radiologist, P.W.-3 Dr. R.S. Yadav and in the opinion of the said doctor the injuries was caused by fire arm. A supplementary report was also prepared on 23.08.2014, which was marked as Ex. Ka-3.

10. The investigation was carried out by P.W.-6 S.I. Brif Singh Yadav, who had recorded the statement of the injured Devilal and informant Sewaram and H.C.P. Raj Pal Singh. Further, he had made a spot inspection of the place of occurrence at the pointing of the informant. The site plan of the place of occurrence has been marked as Ex. Ka-10. On 25.04.2004 the Investigating Officer moved an application for remand of the accused Ramcharan for the purpose of recovery and on 03.09.2004 the accused Ramcharan was given in police custody on remand by the Magistrate.

11. On 04.09.2014 P.W.-6, S.I. Brif Singh Yadav alongwith Constable P.W.-4 Ram Prakash and Constable Heera Lal, took the accused Ramcharan in police custody, and on his pointing out a country made pistol was recovered, from the place where the garbage is thrown, which was kept in plastic bag, and the accused stated that on 18.08.2004 he has assaulted the injured with said weapon alongwith one cartridge which was found blocked in it, was seized, which was marked as item Ex. Ka-1 and item Ex. Ka-2, and the seal as Ex. Ka-4.

12. A site plan of the place from where the country made pistol was recovered was also prepared by the Investigation Officer at the pointing out the accused Ramcharan, as Ex. Ka-11. The Investigating Officer after completing the investigation submitted charge sheet against the accused Ramcharan and Rajpal under Section 307, 504 IPC, which was marked as Ex. Ka-12.

13.On the recovery of the weapon of assault made by the police, a FIR was lodged under Section 25/27 Arms Act, against the accused Ramcharan, which was registered as case crime no. 290 of 2006, Ex. Ka-8 and G.D. of the same Exhibit Ka-9.

14. The investigation of the case was carried out by the P.W.-8 S.I. Ram Singh Mehta, who recorded the statement of the S.I. Brif Singh Yadav, witnesses Constable Ram Prakash and Heera Lal. He made spot inspection of the place of occurrence at the instance of the informant and proved the site plan which was prepared on 04.09.2014 by the S.I. Brif Singh Yadav of the place from where the weapon was recovered.

15. On 06.10.2004, the S.I. Rajendra Singh had taken sanction for prosecuting the accused Ramcharan from the District Magistrate, marked as Ex. Ka-15. After investigation submitted a charge sheet against the said accused, under Section 25/27 Arms Act, as Ex. Ka-16.

16. The accused Rakshpal died during the course of the trial, hence his trial abated. It appears that the accused Krishna Pal who was not charge sheeted was summoned under Section 319 Cr.P.C., hence the charges were framed against Ramcharan and Krishna Pal under Section 307/34, 504 IPC and against accused Ramcharan under Section 25 Arms Act, by the trial court who pleaded not guilty and sought their trial.

17. The prosecution in support of its case examined P.W-1 Devilal, P.W.-2 Sevaram, P.W.-3 Dr. R.S. Yadav, P.W.-4 Constable Ram Prakash, P.W.-5 H.C.P. Rajpal Singh, P.W.-6 S.I. Brif Singh Yadav, P.W.-7 Dr. T. N. Sharma and P.W.-8 Station Officer Ram Singh Mehta.

18. The statement of accused Ramcharan, Krishna Pal was recorded under Section 313 Cr.P.C., who stated that the witnesses have wrongly deposed against them. The accused did not produced any evidence in their defence.

19. P.W-1 Devilal who is the injured in the incident has stated before the trial court that accused Ramcharan, Krishna Pal and Rakshpal(now dead) who is known to him as they belong to his village. On the day of incident at 6.00 a.m., when his son had gone to throw the garbage at a place, the accused Ramveer objected it and started abusing him. His son after throwing the garbage had returned to the house and informed him about the incident and following him the accused Ramcharan armed country made pistol, Rakshpal armed with Bhala and Krishna Pal armed with Lathi, on the exhortation of the accused Krishna Pal the accused Ramcharan fired at him with an intention to kill, which hit him on left side of the chest on which he had fallen. On hearing the gunshot and on alarm raised by him the witnesses, Krishnpal son Nathulal, Itwarilal son of Munshilal, and Sevaram and others arrived at the place of occurrence, then the accused after hurling abuses, fled away. He further deposed that FIR of the incident was lodged by his son Sevaram and he also accompanied him at the police station. The Police after seeing his injuries sent him to District Hospital, Budaun, where he was medically examined and X-ray was done. The Investigating Officer has taken his statement under Section 161 Cr.P.C as P.W.1. The P.W.-2 Sevaram, informant of the case has also re-iterated the prosecution story as has been stated by P.W.-1 before the trial court. He stated that the injuries were received by his father on the chest. He proved the written report Ex. Ka-1, on the basis of which the FIR was lodged. He further stated that his father had gone with him at the police station and the police after seeing his injuries has send him through constable to district Hospital, Budaun for medical examination and X-ray.

20. P.W.-3 Dr. R. S. Yadav who was the Medical Officer at the District Hospital Budaun has examined the injured Devilal and further proved the medical report of the said report Ex. Ka-2 and also the supplementary report Ex. Ka-3.

21. P.W.-4 Constable Ram Prakash has also deposed that on 04.09.2004 he was posted at Police Station Moosajhag. On the said date S.I. Brif Singh Yadav, Constable Heeralal have brought in custody, Ramcharan who was an accused in case crime no. 270 of 2004 under Section 307/504 IPC, who was taken out from the lockup, for which an entry was made in G.D. Rapat No. 5 at 5.45 a.m. and was taken to Village Prahladpur for a recovery of country made pistol. The police tried to take independent witnesses for recovery, but no one was ready to become a witness. He proved the recovery, which was made at the point out of accused Ramcharan of country made pistol of 315 bore in which a cartridge of 315 bore was blocked and also proved the Fard Recovery of Ex. Ka-4 and item nos. 1 and 2 i.e. country made pistol and cartridge .

22. P.W.-5 H.C.P. Rajpal Singh during the trial has also proved the Chik FIR of case crime no. 270 of 2004 under Section 307 504 IPC which was marked as Ex. Ka-5 and the G.D. entry of the case Ex. Ka-6 and Chitthi Majroobi Ex. Ka-7. He also proved the Chik FIR of case crime no. 290 of 2004, under Section 25/27 Arms Act. Ex. Ka-8 and G.D. of entry Ex. Ka-9.

23. P.W.-6 Brif Singh Yadav, in his statement before the trial court has given an evidence that during the course of investigation he prepared the site plan of case crime no. 270 of 2004 under Section 307, 504 IPC and Ex. Ka-10 and further proved the recovery of the country made pistol, which was recovered on 25.08.2004, at the pointing out of accused-appellant Ramcharan and has also made an application in the court for taken him on remand for the purpose of recovery, and the remand was granted to him on 03.09.2004 by the court. He got the recovered, the country made pistol, used in the crime at pointing out of accused Ramcharan. He also proved the site plan of the place of recovery of weapon Ex. Ka-11, and the charge sheet submitted by him under Section 307, 504 IPC Ex. Ka-12.

24. P.W.-7 Dr. T. N. Sharma, Radiologist has also proved the X-ray report Ex. Ka-13 and X-ray Plate Item No. Ka-3.

25. P.W.-8 S.I. Ram Singh Mehta the Investigating Officer of the case crime No. 290 of 2006, submitted charge sheet no. 113 of 2004, under Section 25/27 Arms Act, Ex. Ka-16 against the accused Ram Charan and further site plan of the place of recovery of weapon Ex. Ka-14.

26. Sri Abhay Raj Singh, learned counsel for the appellant, Ramcharan had tried to demonstrate from the evidence of P.W.-1 and P.W.-2 that the FIR of the incident was lodged by the accused appellants after due deliberation and consultation, and FIR of the incident appears to be anti time document and the entire prosecution case is doubtful. He further submitted that the accused Ramcharan on whose pointing a country made pistol of 315 bore in which cartridge was found blocked was recovered was prosecuted under Section 25/27 Arms Act, but he has acquitted by the trial court for the said offence and under Section 504 IPC which shows that the incident appears to be a concocted one against the accused appellants.

27. Learned counsel for the appellants further submitted that though from the statements of the injured as well as the eye witness P.W.-1 Sevaram, it is stated that the appellant Ramcharan has fired shot at the injured Devilal who received injury on his chest, but in the opinion of the Dr. P.W.-3 R.S. Yadav who examined him and Dr. T.N. Sharma P.W.-7, who performed the X-ray of the said injured about the nature of injury, whether it was dangerous to life or not, and it was only stated by them that injury was grievous.

28. Learned counsel for the appellants lastly submitted that the appellant Ramcharan has already served out 4 years 4 months in jail as under trial and after his conviction out of the maximum sentence awarded to him by the trial court, under Section 307/34 IPC, of 7 years R.I., hence the rest of the sentence of the appellants be converted into a fine, which may not be treated as enhancement of sentence.

29. Sri R.P.S. Chauhan, learned counsel appearing on behalf of appellant Krishna Pal, vehemently argued that the role assigned to the said appellant is only of exhortation, on which the co-accused Ramcharan had fire shot at the injured. He submitted that the appellant is not related to the co-accused, and he was summoned under section 319 Cr.P.C. as no charge sheet was submitted against him, hence his participation in the incident appears to be a false one. The trial court has mis-read the evidence on record and has convicted him under Section 307/34 IPC and sentence him to 7 years R.I.

30. Learned AGA on the other hand has argued that the participation of the accused appellants in the incident cannot be doubted, in view of the evidence of the injured P.W.-1 Devilal, who has categorically stated that on the exhortation of co-accused Krishanpal the accused Ramcharan fire short with country made pistol on the injured who received injury on his chest and there appears to be no reason for doubting the testimony of the said injured, as no reason has been given for there false implication in the present case by the informant and the injured. He submitted that the trial court has rightly convicted the appellants under Section 307/34 IPC and sentence them, hence the conviction and sentence be upheld, by this Court.

31. Having considered the submissions advanced by the learned counsel for the parties and perused the record.

32. From the perusal of the record it is apparent from the prosecution case and evidence of P.W.1 Devilal and P.W.-2 Sevaram informant of the case that there was a quarrel between the son of P.W.-1 and younger brother of P.W.-2 Ramveer, for throwing the garbage at a place, which was objected by him and when Ramveer had complained to P.W.1 and P.W.-2 about the said incident the accused Ramcharan alongwith his brother Rakshpal one Krishna Pal followed him at his house stared quarreling there and entered into a hot altercation on which the co-accused Krishna Pal exhorted the accused Ramcharan who fired shot at the injured Devilal with country made pistol which hit him on his left side of chest on account of which he received injuries, he was taken to be Police Station in an injured condition by P.W.-2 who is the son of the injured, where an FIR of the incident was lodged, immediately at about 7.30 a.m. The injured was sent by the police for medical examination, to district hospital Budaun where he was medically examined and the injuries were kept under observation and X-ray was advised. P.W.-3 Dr. R. S. Yadav, medically examined the injured Devilal and found fire arm injury on his person, further on the X-ray a big metallic shadow was also found, by P.W.-7 Dr. T. N. Sharma. The injury was of such depth, that is cannot be probed by the doctor. As per the supplementary report the injury, was found to be a gunshot injury.

33. The argument of learned counsel for the appellant that the FIR of the incident was an anti-time document and prosecution case has been concocted against the accused has no substance, as the injured Devilal has deposed against the appellants, showing their participation in the incident his presence at the place of occurrence can not be doubted. Moreover, the FIR of the incident was lodged by P.W.-2 Sevaram promptly at concerned police station. The trial court during the course of evidence also found that there was no reason to doubted the prosecution case, in view of the evidence of injured witness Devilal which is supported by his medical report as well as testimony of P.W.-2 and others prosecution witnesses. So far as the nature of injury is concerned though there appears to be no opinion given by the doctor regarding the nature of injury, but from the medical report, X-ray report and the supplementary report, of the injured, it is apparent that the injured has received a gunshot injury on his left side of his chest and seeing the seat injury the depth was also not probed by the doctor and further a single big metallic shadow was seen on right side of chest at middle zone of lungs which was found to be hazy, hence it cannot be said that the injuries which was sustained by the injured was not dangerous to life.

34. Simply, because the accused-appellant Ramcharan has been acquitted by the trial under Section 25/27 Arms Act, his participation become doubtful is also to be not tenable as has been argued by the learned counsel for the appellants, as the trial court acquitted him under the said offence only on account of some irregularity, which is appears to be some mischief on the part of the police personnel, while sealing and keeping the country made pistol and cartridge in police Malkhana.

35. As it has been categorical stated by the injured and the P.W.-2 that the accused-appellant Ramcharan on the extortion of accused-appellant Krishna Pal had assaulted him with country made pistol, who has received the fire arm injury on his person. Thus the prosecution has proved its case beyond reasoned doubt against the appellants and their conviction by the trial court does not call for any interference by this Court.

36. Lastly on the question of sentence, the learned counsel for the appellant argued that accused Ramcharan has already served out 4 years and 4 months as under trial and after his conviction in jail out of the maximum sentence awarded to him i.e. 7 years R.I. under Section 307 IPC by the trial court, his rest of the sentence may converted into a fine and may not be treated as enhancement of sentence.

37. Similarly the counsel for the appellant Krishna Pal has also submitted that the sentence of appellant is too severe taking into account his role which is of exhortation only and further he was summoned for offence under Section 319 Cr.P.C. by the trial court, his sentence may be reduce, as he has also served out a sufficient period in jail as under trial and after his conviction, hence rest of his sentence may also be converted into a fine which may not be treated as enhanced of sentence and as he has also settled with his family and send him jail after, would be too harsh and causing great hardship to his family.

38. Considering the above submissions of learned counsel for the appellant the sentence of appellant Ramcharan is also upheld as he has already undergo 4 years 4 months in jail, his rest of the sentence is converted into a fine and appellant Ramcharan shall deposit a fine of Rs. 40,000/-. So far as appellant Krishna Pal is concerned taking into account the role of the appellant which is only of exhortation and has been summoned under Section 319 Cr.P.C. his sentence is reduce to 3 years R.I. and rest of the sentence is also converted into a fine. The accused Krishna Pal shall deposit a fine of Rs. 10,000/-, in the Court of Chief Judicial Magistrate, Budaun. On the deposit of fine as directed above, the appellant Ramcharan shall be released, if not wanted in any other case. The appellant Krishna Pal shall deposit the fine within three months from today. Out of the fine so deposited by the appellants, Rs. 40,000/- shall be paid to the injured Devilal, P.W.-1, if alive, or to his legal heirs, if any, and Rs. 10,000/- shall go the State.

39. In default of fine, as directed above, the appellant Ramcharan shall serve out the sentence, as ordered by the trial Court, and appellant Krishna Pal who is stated to be on bail shall be taken into custody to serve out sentence as has been ordered and modified by this Court.

In view of the above, both the appeals are partly allowed.

Office is directed to send a certified copy of this order to the C.J.M., Budaun for its compliance.

Order Date :- 6.7.2015/VKG