Sanjay @ Sanjeev Dubey vs State Of U.P.
2018 Latest Caselaw 1266 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
A.F.R.
 
Reserved 
 

 

 
Court No. - 52
 
Case :- CRIMINAL APPEAL No. - 4329 of 2013
 
Appellant :- Sanjay @ Sanjeev Dubey
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- K.M. Mishra
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Ravindra Nath Kakkar,J.

This criminal appeal has been preferred against the judgement and order dated 20.09.2013 passed by Sessions Judge, Auraiya in Sessions Trial No. 29 of 2013 (State of U.P. Vs.Sanjay @ Sanjeev Dubey) arising out of Case Crime No. 283 of 2012 convicting and sentencing the accused-appellant for the offence under Section 307 I.P.C. to seven years rigorous imprisonment with fine of Rs. 10,000/- and in the event of default of payment of fine he has to undergo additional rigorous imprisonment of one year. Out of realized fine Rs. 7,000/- was awarded as compensation to the victim/injured.

I have heard learned counsel for the appellant as well as learned A.G.A. for the State.

Factual scenario of the case is that First Information Report was lodged at PS-Ajitmal, District-Auraiya by one Badam Singh, uncle of the injured Ajeet Singh stating therein that accused-appellant Sanjay @ Sanjeev Dubey S/o Shyam Bihari came at the house of informant and stated that he wants to labour for cutting the wood and Rs. 200/- labour charge was fixed by Ajeet Singh and thereafter Ajeet Singh has gone with accused-appellant. Further stated that at about 11:00 a.m. when injured Ajit Singh sit for urinal purpose the accused-appellant Sanjay @ Sanjeev Dubey assaulted him with axe. Complainant who had also gone alongwith Ajeet Singh rushed towards his nephew to save his life. Thereafter, accused-appellant ran away from the spot. Further stated that complainant brought his nephew at District Hospital Ajitmal for his treatment where his injuries was examined and thereafter, the injured was referred to P.G.I. Saifai.

On the basis of this written report Ex. KA1 on 09.10.2012 at about 15:30 p.m. chick F.I.R. Ex. KA7 was registered at concerned police station under Section 324 I.P.C. and its relevant entry Ex. KA8 was made in the general diary.

Investigating Officer has obtained the medical report, discharge certificate, X-ray report and X-ray plate from Safai Hospital which are exhibited as Ex. KA2, Ex. KA3, Ex. KA4 and Ex. 1 respectively. He has prepared the site plan Ex. KA5 and after completion of the investigation filed charge sheet Ex. KA6 under Section 324, 308 I.P.C. before the trial court.

The case was committed to Session Court and charge under Sections 324, 308 I.P.C. and in the alternative charge under Section 307 I.P.C. were framed against the accused-appellant which he denied and claimed trial.

The prosecution in support of its case examined PW1 Badam Singh (complainant), PW2 Ajit Singh (injured), PW3 Dr. Arun Kumar Singh (Senior Medical Officer), PW4 Dr. A. S. Mathur (radiologist), PW5 S.I. Ram Kumar Mishra (Investigating Officer) and PW6 Ct. Ramesh Chandra Batham.

After close of the prosecution evidence statement of the accused under Section 313 Cr.P.C. was recorded wherein he claimed that he has been falsely implicated due to enmity.

After hearing both the parties on the basis of material available on record trial court has convicted and sentenced the accused-appellant as stated above.

Learned counsel for the accused-appellant mainly argued on two points. The first contention is that the conviction recorded by the trial court is correct but the conviction under Section 307 I.P.C. is not sustainable in the eye of law. At the most conviction should have been recorded under Sections 324 and 325 I.P.C. The second point argued before me for modification and reduction of the sentence.

Per contra learned A.G.A. submits that judgement of conviction and order of sentence is wholly based on the evidence on record and on the basis of intrinsic merit of the evidence and after appreciation of the oral as well as documentary evidence in its proper prospective the trial court has recorded conviction and order of sentence which requires no interference.

Having heard learned counsel for the parties I have given my anxious consideration on the points raised by the learned counsel for the accused-appellant. Learned counsel for the accused-appellant argued that initially F.I.R. was lodged under Section 324 I.P.C. and after collection of the medical evidence charge sheet was submitted under Sections 324/308 I.P.C. Court below has framed charge under Sections 324 and 308 I.P.C. and further amended the charge in alternative under Section 307 I.P.C. After amendment of the charge opportunity of cross-examination has not been afforded to the defence.

Perusal of the record reveals that this argument has no merit at all because initially the charge was framed under Section 324 and 308 I.P.C. on 29.01.2013 and subsequently the charge was amended in alternative under Section 307 I.P.C. on 18.03.2013 and PW2 injured Ajit Singh was examined on 03.04.2013 i.e. after amendment of the charge. Therefore, prima facie the above argument is not sustainable. It was next contended that motive and intention to kill the victim is not cogently established from the nature and dimension of the injuries as well as statement of the complainant who is uncle of the injured/victim. He further argued on the above said points that as per medico legal report of the injured the incised wound found 0.2 c.m. in breadth whereas injury is said to be caused by a sharp edged weapon axe. The seat of the incised wound is on head and there is one laceration in the left forearm. The dimension and nature of the injuries are indicative of the fact that there was no intention of the accused-appellant to kill the victim. Further, PW1 Badam Singh during his statement before the trial court stated that after the incident he brought the injured at Ram Nagar. He met with gram pradhan Asharam at Ram Nagar where both injured and PW1 had taken tea and thereafter with the help of pradhan he alongwith injured went to Ajeetmal Hospital for medical treatment.

On the basis of aforesaid, learned counsel for the appellant contended that if the injuries were serious the injured should have straight way gone for medical treatment. Therefore, the intention and motive against the appellant is not proved in this case. However, he admitted that injuries inflicted on the body of the victim caused by a sharp edged weapon i.e. axe. The seat of the injury is on head and further as per radiological report there was a fracture of parietal occipital bone.

The crux of the matter is whether offence under Sections 324 and 325 I.P.C. or under Section 307 I.P.C. is made out against the accused-appellant.

Perusal of the record establishes that injured witness was examined as PW2 and eye witness (complainant) was examined as PW1 before the trial court. So far as guilt of the accused-appellant is concerned the testimony of both these witnesses are consistent.

Medical evidence provided by PW3 Dr. Arun Kumar (Senior Medical Officer) and PW4 Dr. A.S. Mathur (radiologist) is on record. Perusal of it shows that PW3 Dr. Arun Kumar has proved medical report Ex. KA2 and discharge certificate Ex. KA3. PW4 Dr. A. S. Mathur has proved X-ray report Ex. KA4 and X-ray plate Ex. 1. As per medical report following injuries were found on the body of the injured:-

(1) Incised wound 11 X 0.2 c.m. over Lt. side occipital region.

(2) Incised wound 6 X 0.2 c.m. Lt. side parietal bone.

(3) Lacerated wound LW 4 X 1.5 c.m. over dorsal Lt. forearm.

In X-ray report there was a fracture of parietal bone.

Before appreciating the arguments raised by learned counsel for the appellant in light of the nature of injuries, seat of injuries and dimension of injuries, I would like to refer the legal proposition as laid-down by Hon'ble Supreme Court in AIR 2004 Supreme Court 1812, R. Prakash (Appellant) Vs. State of Karnataka (Respondent) wherein Hon'ble Apex Court held that:-

" It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Sections make a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section."

From a perusal of the record, presence, involvement and complicity of the accused-appellant in commission of the crime is proved fact. It is also established that it was a day light incident. It is also proved that weapon used in the incident is a sharp edged weapon i.e. axe. It is also proved that parietal occipital bone of the injured was fractured in the incident. There were two incised wounds on the vital part of the body of the injured having fracture of parietal occipital bone.

On the basis of the fact and medical evidence tendered by the prosecution in this case and considering the facts and circumstances of the case, I am not inclined to accept the arguments of learned counsel for the appellant that conviction recorded by the trial court under Section 307 I.P.C. is not sustainable in the eye of law. The above said arguments is devoid of merit.

On the point of quantum of sentence learned counsel for the appellant submits that accused-appellant is languishing in jail since 20.09.2013 and also during trial he was detained in jail for more than three months. It is next contended that accused-appellant has no previous criminal antecedents. Further contended that his wife and two small kids in his family and there is no-one in his family to look after. Further, there is no adverse report against the appellant from the concerned Jail authorities. So prayer for modification and reduction of the quantum of sentence has been made to period already undergone.

I have considered the submissions made by the learned counsel for the appellant that appellant is languishing in jail since 20.09.2013 and also during trial he was detained in jail for more than three months. The sentence served by the accused-appellant is more than five years. So I am of the view that appeal deserves to be partly allowed on the point of sentence only. Accordingly, the appeal is partly allowed on the quantum of sentence. The findings of conviction recorded by the trial court against the accused-appellant for the offence under Section 307 I.P.C. is hereby confirmed and maintained. Since the appellant has already served more than five years sentence, the sentence awarded to the appellant is modified and reduced to 5 years rigorous imprisonment which has already undergone by the accused-appellant. The fine of Rs. 10,000 awarded by the trial court is confirmed and out of which Rs. 7,000/- be paid to the victim as compensation. Accordingly the impugned judgement stands modified to the above extent. Accused-appellant shall be entitled to get the benefit of Section 428 Cr.P.C.

Let a certified copy of the judgement and order be sent to the Chief Judicial Magistrate concerned for compliance report. The lower court records be returned for compliance.

Order Date :- 8.6.2018/AKT