Pawan Kumar Singh @ Bablu vs State Of U.P.
2021 Latest Caselaw 8078 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved  on: 15.06.2021
 
Delivered on: 16.07.2021
 
Court No. - 30
 

 
Case :- CRIMINAL APPEAL No. - 592 of 2019
 

 
Appellant :- Pawan Kumar Singh @ Bablu
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Ajeet Kumar Singh,Ravindra Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Suresh Kumar Gupta,J.

1. This appeal has been preferred on behalf of appellant Pawan Kumar Singh alias Bablu challenging the impugned judgment and order dated 22.01.2019 passed by learned Additional Sessions Judge-I, Hardoi whereby the appellant was convicted and sentenced as under:-

(i). In Sessions Trial No. 16 of 2015 arising out of Case Crime No. 588 of 2014, under Section 307 IPC, Police Station Lonar, District Hardoi, the appellant was convicted and sentenced for ten years rigorous imprisonment and fine of Rs. 10,000/- with default stipulation.

(ii). In Sessions Trial No. 17 of 2015, arising out of Case Crime No. 589 of 2014, under Section 25 (1-B) of the Arms Act, Police Station Lonar, District Hardoi, the appellant was convicted and sentenced for one year's rigorous imprisonment and fine of Rs.2,000/- with default stipulation.

Both the sentences were directed to run concurrently.

2. As per allegation made in the FIR the case emerges out as such that on 02.11.2014, PW-1 Ashok Kumar along with Constable Indresh Verma was present in village Nagla Khanpur, Police Station Behtagokul in relation to Case Crime No. 988 of 2014, under Section 302 and 307 IPC. At that time, Station House Officer Behtagokul PW-2 Neeraj Walia, PW-9 S.I. Keshav Kumar, Constable Abdul Rashi Khan, Constable Devendra Tripathi arrived by his jeep bearing no. UP30 E 5234 in Village Nagla Khanpur. The S.H.O. told to the police party that an information was received from confidential sources that wanted accused are present in the house of Sant Ram Dhanuk in village Tehapur, Police Station Lonar, then, police party made a strategy and after searching each other, reached the house of Sant Ram leaving government vehicle outside the village. When the police party entered the house of Sant Ram Dhanuk, then S.H.O. Neeraj Walia warned to the accused-appellant that you are surrounded by the police and do surrender before the police. Meanwhile the appellant immediately with the intention to kill opened fire with .12 bore gun from close range, resultantly injuring the S.H.O. Neeraj Walia. Due to this act, S.H.O. Neeraj Walia received injury on both the hands and chest then immediately all the police members rushed inside the house and by showing indomitable courage arrested the accused persons. On personal search, one country-made pistol 315 bore and one live cartridge on his hand, two live cartridge recovered from the right pocket of the pant. After dismantling the recovered firearm of 315 bore, one empty cartridge was recovered and one single barrel gun was also recovered on left shoulder and rounding waist with 15 live cartridges was also recovered and one empty cartridge of 12 bore was also recovered inside the gun in which sample of gunpowder was smelling out from the empty cartridge. On spot, the recovered armed and ammunition was sealed. Due to this incident, law and order situation was vigorously disrupted and accused was taken into custody in Case Crime No. 988 of 2014, under Section 307 IPC. Co-accused Sant Ram in Case Crime No. 590 of 2014, under Section 216 IPC flee away from the spot. At that time, recovery memo Ex. Ka-1 was prepared. On the basis of recovery memo, Case Crime No. 588 of 2014 under Section 307 IPC and Case Crime No. 589 of 2014 under Section 3/25 of the Arms Act was registered against the appellant.

3. Investigation of this case was entrusted to PW-2 Neeraj Walia, who after registration of the case recorded the statement of Head Constable and PW-1 Ashok Kumar, who reached the place of occurrence and prepared site plan (Ex. Ka-7) and also collected the plain soil and bloodstained soil and prepared recovery memo and proved as (Ex. Ka-8) and recorded the statement of accused appellant Pawan Kumar on 02.11.2014 at 10:40 a.m. S.H.O. Neeraj Walia, who got serious injury, was medically examined by PW-3 Dr. Subodh Kumar Singh and as per medical report (Ex. Ka-2), following injuries were received:-

(i) firearm wound 4 cm. x 4 cm. bone deep, blackening and tattooing present and charring present around the wound in the left arm just above the elbow.

(ii) multiple abrasion around wound no. 1 in the area of 8 cm. x 6 cm.

(iii) firearm wound 6 cm. x 6 cm. on left hand of palm surface bone deep, blackening and tattooing present around the wound.

Clothes wearing by him was taken out and handed over to S.I. K.K. Rao, Police Station Behtagokul, Hardoi.

As per opinion of PW-3 Dr. Subodh Kumar Singh, the injury kept under observation caused by firearm and duration fresh.

4. A supplementary report (Ex. Ka-3) was also prepared by PW-4 Dr. Rahul Singh, wherein it has been clearly stated that patient admitted to surgery emergency as alleged case of firearm injury on left arm.

5. The patient operation in emergency O.T. by Plastic Surgery admitted on 02.11.2014 and an exploration and repair of left brachial artery with reverse saphenous vein graft done with left leg & K- wire fixation of right thumb was done along with removal of foreign body containing irregular shaped plastic body, 6 mettalic irregular rounded pellets was done which was submitted in superintendent office, KGMU, Lucknow.

6. Thereafter a detailed supplementary report dated 15.12.2014 (Ex. Ka-4) was prepared.

7. During investigation, Investigating Officer recorded statement of other witnesses and after completing all formalities of investigation, charge sheet was submitted against the appellant under Section 307 IPC before A.C.J.M.-I where it is registered as Case No. 2813/14.

8. Since the offence mentioned in the charge sheet was triable by the court of sessions, therefore, A.C.J.M.-I committed the case to the court of sessions for trial where the Case Crime No. 590 of 2014 registered as Sessions Trial No. 16 of 2015 and the charge was framed against the appellant on 25.4.2015 and the same was read-over to the appellant and the appellant denied the charges levelled against him.

9. The prosecution in order to prove its case against the appellant examined PW-1 S.I. Ashok Kumar is the complainant and first informant of the case, who proved recovery memo and arrest of the accused as Ex. Ka-1 and also proved the recovered gun powder from the SBBL gun as Ex-1, five live cartridges as Ex. 1 to 16, empty cartridge (Ex.-17), country-made pistol 315 bore (Ex.-18), live cartridges, which was recovered in his possession as (Ex.-19 & 21) and empty cartridge as (Ex.-20).

10. PW-2 S.H.O. Neeraj Walia, injured witness proved the prosecution case.

11. PW-3 Dr. Subodh Kumar Singh, who conducted medical examination of injured Neeraj Walia and prepared injury report as Ex. Ka-2.

12. PW-4 Dr. Rahul Singh, Resident Doctor of K.G.M.U., who prepared supplementary report and proved as (Ex. Ka-3).

13. PW-5 Dr. Divya Narain, Assistant Professor, conducted the operation of S.H.O. Neeraj Walia and prepared supplementary report and proved as (Ex. Ka-4).

14. PW-6 H.C.P. Rm Prakash proved the G.D. entry as (Ex. Ka-5).

15. PW-7 Head Constable Dinesh Kumar Mishra, who prepared check FIR and proved as (Ex. Ka-6).

16. PW-8 Sanjay Maurya is the Investigating Officer of the case, who prepared site plan as (Ex. Ka-7) and also prepared recovery memo of plain soil and bloodstained soil (Ex. Ka-8) and charge sheet (Ex. Ka-9) and prosecution sanction as (Ex. Ka-10) and proved charge sheet under Section 25 of the Arms Act as (Ex. Ka-11).

17. Thus the prosecution has relied on oral testimony of the witnesses PW-1 and PW-7 and documentary evidence Ex.-1 to Ka-12.

18. After close of the prosecution evidence, statement of accused-appellant was recorded under Section 313 Cr.P.C. wherein he has clearly stated that the false evidence was deposed by the witnesses examined by the prosecution and further submitted that he is innocent and police arrested him in an unconstitutional manner. Further submission was that false recovery was shown against him and no evidence in defence was produced by the appellant.

19. The trial court, after appreciation of evidence available on record, convicted and sentenced the appellant Pawan Kumar Singh alias Bablu as mentioned-above.

20. Feeling aggrieved and dissatisfied with the judgment of the trial court, the appellant preferred the instant criminal appeal.

21. Heard Mr. Ajeet Kumar Singh, learned counsel for appellant, Ms. Islam Zeba Siddiqui, learned A.G.A. for the State and perused the lower court record.

22. Learned A.G.A. for the State has supported the judgment of learned trial court and has submitted that the appeal has no force and is liable to be dismissed. Further submission is that offence committed by the appellant is very heinous in nature and there is no reason to falsely implicate him. The appellant intentionally inflicted fatal gunshot injury to S.H.O. Neeraj Walia. The case of attempt to murder duly proved against the appellant. The trial court has rightly convicted and sentenced the appellant and the appellant deserves no leniency.

23. Learned counsel for appellant has submitted that the trial court without appreciating the evidence available on record, wrongly convicted the appellant. Further submission is that all the witnesses examined by the prosecution is police witness. No independent witness was examined on behalf of the prosecution. All the witnesses examined by the prosecution are interested witness and medical evidence on record does not support the case of the prosecution as alleged in the FIR and the prosecution has failed to prove its case beyond shadow of doubt.

24. Lastly learned counsel for appellant has basically submitted that the appellant does not want to argue this appeal on merits, he only wants to advance submission only on the quantum of sentence imposed upon him.

25. Not pressing the criminal appeal after the conviction of the accused by the court below is like the confession of the offence by the accused. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence.

26. In the case of Sevaka Perumal etc. Vs. State of Tamil Nadu AIR 1991 SC 1463, the Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:

"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."

27. In the case of Dhananjoy Chatterjee Vs. State of W. B. [1994] 2 SCC 220, this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175. It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.

28. Appropriate sentence is the cry of the society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.

29. This position was reiterated by a three-Judge Bench of the Apex Court in Ahmed Hussein Vali Mohammed Saiyed and Anr. vs. State of Gujarat, (2009) 7 SCC 254, wherein it was observed as follows:-

"99.....The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence, which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.

The court must not only keep in view the rights of the victim of the crime but the society at large also while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong."

30. In Jameel vs. State of Uttar Pradesh (2010) 12 SCC 532, this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus:

"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.

It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

31. In Guru Basavaraj @ Benne Settapa vs. State of Karnataka, (2012) 8 SCC 734, while discussing the concept of appropriate sentence, this Court expressed that:

"It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored."

32. In Gopal Singh vs. State of Uttarakhand JT 2013 (3) SC 444 held as under:-

"18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence....."

33. It is not disputed that the accused-appellant is continuing in jail since 02.11.2014, which is about seven years. Keeping in view the prayer of learned counsel for appellant to release the appellant on the period already undergone and the law laid down by Hon'ble Apex Court and facts & circumstances of the case, in my opinion, the end of justice would meet, if the custodial sentence of appellant ten years rigorous imprisonment under Section 307 IPC be reduced to eight years rigorous imprisonment with all remission that imposed by the trial court upon the accused-appellant.

34. In view of the aforesaid reason, the appeal is partly allowed. The conviction of the appellant under Section 307 IPC is confirmed but rigorous imprisonment of ten years under Section 307 IPC is reduced to eight years rigorous imprisonment with all remission but the fine clause shall be unaltered.

35. In view of the above terms, the appeal is partly allowed only on quantum of sentence but the conviction is confirmed..

36. The record of this case be transmitted to the trial court for necessary compliance.

Order Date :- 16.07.2021

Virendra