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2019 DIGILAW 550 (UTT)

Bhairav Dutt Bhatt v. State Of Uttarakhand

2019-10-23

R.C.KHULBE

body2019
JUDGMENT : R.C. Khulbe, J. The present appeal is directed against the judgment and order dated 15.06.2004 passed by learned Additional Sessions Judge, Haldwani in S.T. No.63 of 2000, State vs. Bhairav Dutt Bhatt, whereby, the appellant-accused, was convicted by the Court below u/s 307 IPC and sentenced to undergo five years' R.I. with fine of Rs.3,000/-, and in case of failure in depositing the fine, to undergo six months' additional rigorous imprisonment. 2. Brief facts of the present case, inter alia, are that PW1 Harish Chandra Bhatt gave a report on 23.9.1999 with the averments that accused Bhairav Dutt Bhatt and complainant are having houses adjacent to each other, and father of both of them are brothers. On 23.9.1999 at about 6 PM, appellant, who does the job in Home Guard, came at the house of complainant being armed with a government rifle and began to threat; at that time, in the house of complainant, his father, mother, wife and the wife of his younger brother were present; when they all objected to the appellant, then the appellant threatened that on that day, he would not leave them and then he shot four fires from the government rifle; one fire hit on the left elbow and stomach of complainant's father, another shot, hitting his mother, struck on the wall, the third one hit on the right hand of complainant, while the fourth one was a missed fire. Then the complainant and his brother Gopal Dutt caught hold of accused and while they were bringing him to the police station, on the way, Vijay Khati and others also met who also kept on holding the accused and after moving to some extent, the accused fled away. The government rifle and cartridges were taken from the accused by the complainant. With these averments, the report was lodged. 3. xxx xxx xxx 4. On the basis of the above report, the case was registered against the appellant. The Investigating Officer, during investigation, prepared the site map after inspecting the place of occurrence and after completion of investigation, he, accordingly, submitted the charge-sheet against the accused. 5. The trial Court, accordingly, framed the Charge against the appellant-accused, to which he pleaded not guilty and claimed trial. 6. To prove the prosecution story, PW1 Harish Chandra, PW2 Moti Ram, PW3 Smt. Bhagwati Devi, PW4 Dr. 5. The trial Court, accordingly, framed the Charge against the appellant-accused, to which he pleaded not guilty and claimed trial. 6. To prove the prosecution story, PW1 Harish Chandra, PW2 Moti Ram, PW3 Smt. Bhagwati Devi, PW4 Dr. Ajay Mohan, PW5 Shamshad Ahmad Khan, PW6 C.P. Rajendra Prasad Rai, PW7 Gopal Dutt Pande, PW8 Dr. Kaushal Kumar and PW9 Dhirendra Singh. 7. Thereafter, the statement of appellant was recorded u/s 313 Cr.P.C., in which he denied the allegations. 8. The trial court, having perused the entire material made available on record, vide the judgment and order under appeal, convicted and sentenced the appellant, as mentioned hereinabove. Feeling aggrieved, appellant has preferred the present appeal. 9. Heard learned Counsel for the respective parties and perused the entire material available on the record. 10. Learned Amicus Curiae appearing for the appellant fairly submits that the conviction of the appellant, as recorded by the Court below under Section 307 IPC is perfectly justified as per the evidence recorded before the trial court, and she also does not want to lay any challenge on the same; she only confined her prayer to the extent that the sentence awarded to the appellant by the trial court may be reduced to the period already undergone by him. The reasons shown for such a prayer are that appellant is the sole bread earner in his family; the occurrence took place around 20 years ago; there is no criminal history against him; and lastly, the appellant was sentenced for five years' rigorous imprisonment, against which, he has already served a substantive period. 11. After considering the entire facts and circumstances of the case, this Court is of the view that it would be just and proper to reduce the sentence of the appellant to twenty eight months' R.I., instead of five years, as awarded by the Court below u/s 307 IPC. 12. For the reasons recorded above, the appeal is partly allowed. The conviction part of the appellant is left intact. However, the sentence of imprisonment, awarded the appellant by the Court below under Section 307 IPC, is hereby reduced to twenty eight months' R.I., instead of five years' R.I. 13. 12. For the reasons recorded above, the appeal is partly allowed. The conviction part of the appellant is left intact. However, the sentence of imprisonment, awarded the appellant by the Court below under Section 307 IPC, is hereby reduced to twenty eight months' R.I., instead of five years' R.I. 13. It is clarified that the period already undergone by the appellant shall be adjusted from the sentence, as imposed/modified by this Court, and if he has served out the sentence, so modified by this Court, after verifying the records, the appellant shall be released from the jail forthwith. 14. A copy of this judgment and order along with the LCR be sent to the Court below by the Registry of the Court for forthwith compliance. 15. Copy of this judgment be issued to learned Amicus Curiae, appearing for the appellant, today itself as per the relevant rules.