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2005 DIGILAW 1927 (RAJ)

Madanlal v. State of Rajasthan

2005-07-27

SATYA PRAKASH PATHAK

body2005
JUDGMENT 1. - This jail appeal under Section 383, Cr.PC. has been filed against the judgment of conviction and order of sentence dated 3.8.2001 passed by learned Additional District & Sessions Judge (Fast Track), Rajsamand in Sessions Case No. 31 of 2001, whereby the accused-Appellant has been convicted under Section 307 Indian Penal Code and sentenced to 7 years rigorous imprisonment with a fine of Rs. 2,000/-, in default of payment of fine to further suffer three months simple imprisonment. 2. Briefly stated, the facts of the case are that on 2.2.2000 complainant Ramesh Chandra gave a verbal information Ex.P/10 at Police Station, Devgarh to the effect that on that day at about 12 O'clock in the day he alongwith his father Mohanlal and elder brother Shivlal was at the well and repairing the pipe of engine at that time his elder brother accused Madanlal having gun in his hand came there. It was stated that the complainant told him not to fire there and on that accused Madanlal went away from there but after some time he again returned to the place after loading the gun and started quarrelling with the complainant. The complainant said him not to quarrel but the accused lifted the gun with an intention to kill him and fired which resulted in a number of pallets injuries to him and a lot of blood oozed out. It was said that the accused after firing gun ran away from the spot. The complainant was taken to Devgarh Hospital in a jeep by his father and brother for treatment. It was said that due to the partition dispute in respect of land in between the brothers there is an old enmity between them. 3. On the basis of above report, a regular FIR was chalked out and Criminal Case No. 34 of 2000 under Section 307 and 323 IPC was registered and investigation commenced. 4. During the course of investigation, Investigation Officer reached at the spot and prepared site-Plan Ex.P/1, Injured Mohanlal was medically examined. Report in that regard is Ex.R 5. Statements of complainant and related witnesses were recorded under Section 161 Cr.PC. The X - ray plate and the reports in respect of complainant's injuries were taken on record as Ex.R/8 and P/9. During the course of investigation, Investigation Officer reached at the spot and prepared site-Plan Ex.P/1, Injured Mohanlal was medically examined. Report in that regard is Ex.R 5. Statements of complainant and related witnesses were recorded under Section 161 Cr.PC. The X - ray plate and the reports in respect of complainant's injuries were taken on record as Ex.R/8 and P/9. Accused was arrested on 9.2.2000 through Arrest Memo as Ex.P/13, who in the police custody gave information to voluntarily get recovered one single barrel gun from his residential house hidden beneath the beddings. The report in this respect was reduced in writing vide Ex.P/14. In pursuance to the information of accused, from the place as indicated by accused, one single barrel gun was recovered through memo Ex. P/3 in presence of Motbirs. The site plan of the place from where the gun was recovered was also prepared. The recovered gun was got mechanically checked. Mechanical Report of the Gun is Ex.P/6. 5. After completion of investigation, challan was filed against the accused-Appellant under Section 307 & 323 IPC in the Court of Judicial Magistrate, Devgarh and the learned Magistrate, prima facie finding it a case related to an offence under Section 307 IPC, exclusively triable by the Court of Sessions, committed it to the Court of Sessions and on committal the matter came up for trial before the Court of learned Additional District & Sessions Judge (Fast Track), Rajsamand, who took cognizance and framed and read over charge against the accused-Appellant under Section 323 & 307 IPC. The accused-Appellant claimed trial. In support of its case, the prosecution examined as many as 11 witnesses and tendered several documents in evidence.After close of the prosecution evidence, statement of accused was recorded under Section 313 of the Cr.PC. in which he gave negative answers to the questions put and stated that due to the dispute of property he has been falsely implicated by his own brothers. 6. The learned Trial Judge, after hearing both sides, convicted and sentenced the accused-Appellant as indicated hereinabove. 7. Heard learned counsel for the accused-Appellant as well as the learned Public Prosecutor at length and carefully scrutinised the material available on record. 8. 6. The learned Trial Judge, after hearing both sides, convicted and sentenced the accused-Appellant as indicated hereinabove. 7. Heard learned counsel for the accused-Appellant as well as the learned Public Prosecutor at length and carefully scrutinised the material available on record. 8. The only point argued before me by the learned Amicus Curiae is that in the instant case a sudden quarrel took place between two brothers and the accused is in jail since last five years and five months, therefore, a lenient view should be taken in his matter and the sentence be reduced to the period already undergone by him. The findings of guilt recorded by the learned Trial Court have not been challenged before me. 9. On the other hand, the learned Public Prosecutor submits that accused has caused injuries on the legs of the injured by a fire arm intentionally and, therefore, no lenient view is required to be taken in favour of the accused. He has supported the judgment and order of the learned Trial Court. It was contended that the findings which have been recorded by the learned Court below prove the guilt of the accused-Appellant, therefore, no interference is required to be made in the judgment and order passed by learned Trial Judge which is based on proper appreciation of evidence. 10. I have considered the submissions made before us. 11. The impugned judgment has not been challenged before me on merits and rightly so far the reason that in this case the father of the accused and the injured, who is brother of the accused, both have supported the prosecution case and they have stood the test of cross-examination, in the medical evidence, PW 6 Dr. Om Prakash has proved the Injury Report Ex.P/5 and another doctor PW 9 Suresh Chand has proved the X-ray report of the injured and found fracture of tibia in the right leg of injured. One more doctor who has been examined in this case PW 11 Umendra Sharma has conducted the operation in relation to the injuries sustained by the injured. 12. In view of above evidence, it can be said that the Trial Court has correctly drawn the conclusion that the injuries were caused by firearm. One more doctor who has been examined in this case PW 11 Umendra Sharma has conducted the operation in relation to the injuries sustained by the injured. 12. In view of above evidence, it can be said that the Trial Court has correctly drawn the conclusion that the injuries were caused by firearm. It has also come in evidence that the accused first came to quarrel with the injured and at that time also he was having a gun in his hand but he went away and came after some time after loading the gun and from that gun caused injuries while the injured was sitting. The gun later on was recovered on the basis of disclosure statement made by accused. 13. In view of above, the conviction recorded against accused appellant by the learned Trial Court is based on proper appreciation of evidence. However, taking into consideration the submission of learned counsel for accused appellant that accused is in jail since last five and a half years whereas the total punishment awarded to him is only 7 years and further that the injured as well as the accused both are real brothers, while taking a lenient view in the matter, in my opinion, the ends of justice would meet if the sentence awarded to the accused under Section 307 IPC is reduced to the period already suffered by him. 14. In view of foregoing discussions, the jail appeal partly succeeds. The conviction recorded against accused appellant under Section 307 IPC by the learned Trial Court is maintained but the sentence awarded is reduced to the period already undergone by him. To that extent the order of learned Trial Court stands modified. Accused appellant is in jail. He be set at liberty if not required in another case.Appeal partly allowed. *******