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2023 DIGILAW 330 (ALL)

Sudarshan @ Shambha v. State of U. P.

2023-02-01

SURESH KUMAR GUPTA

body2023
JUDGMENT : 1. This criminal appeal has been filed under Section 374 (2) Cr.P.C. against the judgment and order dated 16.3.1999 passed by 8th Additional Sessions Judge Sitapur in Sessions Trial No. 1337 of 1997 arising out of Case Crime No. 189 of 1996, U/s 147,148,149,307 IPC relating to Police Station-Kotwali, District-Sitapur, whereby convicted and sentenced the appellant under section-307 I.P.C. for five years rigorous imprisonment with fine of Rs.500/- and in default of payment of fine, six months additional rigorous imprisonment. 2. The prosecution story, in brief, is that the FIR of the alleged incident was lodged by the first informant Mukhtar Khan with the allegations that on 7.3.1996 at 7 pm, the appellant opened fire by country made pistol on the grand son of the first informant Ikrar Ahmad @ Guddu due to which, he got injury on the thigh and waist. At the time of incident, the appellant and his other associates Shiv Kumar, Rakesh, Dipu, Sushil, Bablu, Rajesh and Munna were also with the appellant they surrounded the injured and his associates instigated the appellant to kill the injured Ikrar Ahmad @ Guddu. This incident was witnessed by Arif Khan @ Suhel and Khursid. On this allegation, the written report was scribed by Wasir Ahmad and lodged by Mukhtar Khan before the police station Kotwali, Sitapur and the FIR was lodged against the appellant and other co-accused as Case Crime No. 186/1996. 3. The investigation of this case was entrusted to the Sub Inspector, Shyam Narayan. During course of investigation, the investigating officer recorded the statement of the first informant, Mukhtar Khan and other witnesses and prepared the site plan on pointing out of the first informant. During course of investigation, the investigating officer collected the medical report and also collected bloodstained cloth of the injured and prepared the recovery memo. Thereafter the statement of other witnesses was recorded U/s 161 CrPC and after collecting sufficient evidence, the charge sheet was submitted by the investigating officer against the appellant and other co-accused U/s 147,148,307/149 IPC on 19.3.1996. The charge-sheet was submitted before the CJM, Sitapur and CJM, Sitapur took cognizance and the case was committed to the court of sessions on 13.8.1997 where it was registered as S.T. No. 1337/1997 and it was transferred to the court of ASJ, court no. 18 for trial. 4. The charge-sheet was submitted before the CJM, Sitapur and CJM, Sitapur took cognizance and the case was committed to the court of sessions on 13.8.1997 where it was registered as S.T. No. 1337/1997 and it was transferred to the court of ASJ, court no. 18 for trial. 4. Charges were framed against the appellant and other co-accused on 7.2.1998 U/s 147,148,307/149 IPC. Charges were read over to the appellant and they denied the charges levelled against him and claimed to be tried. 5. In order to prove its case, following witnesses were examined by the prosecution : (i) PW-1, Mukhtar Khan who is first informant and he fully supported the prosecution version. It is further stated that after this incident, the witness proved recovery memo of the recovered cloth of the injured as Ex-ka-2. In his cross examination, this witness stated that the place of incident is 15-20 meters away from police chowki but no police person rushed to the spot. Thus he fully established the prosecution version. (ii) PW-2, Ikrar Ahmad, the injured witness who stated that on instigation of other co-accused persons, the appellant Sudarshan opened fire by country-made pistol and due to this he has got injury on waist and abdomen area. His medical examination was done in Sitapur hospital. Thereafter he was referred to Lucknow Medical College for better treatment but he was not admitted in that hospital. Consequently, he returned on next day. It is further stated that when he returned from Lucknow his pant, shirt and red color vest on which marks of pellets and blood were present. At the place of incident, tubelight was closed. Thus, this witnesses fully supported the version of the prosecution. There are no contradictions in cross examination. The recovered clothes were proved as Exb. 1 to Exb. 3. (iii) PW-3, Suhail who is the eye witness of the incident. He also fully supported the prosecution version. (iv) PW-4 Dr. R.C. Gupta who examined the injury of the injured Ikrar Ahmad. In his statement he stated on 7.3.1996 at 7.45 pm he examined the injured and during examination he found in area of 18 cm x 18 cm firearm injuries measuring 0.3 cm x 0.3 cm below abdomen side. Thus injury was kept under observation and was referred to Surgeon. This injury report was proved by the Doctor as Ex-ka-3. In his statement he stated on 7.3.1996 at 7.45 pm he examined the injured and during examination he found in area of 18 cm x 18 cm firearm injuries measuring 0.3 cm x 0.3 cm below abdomen side. Thus injury was kept under observation and was referred to Surgeon. This injury report was proved by the Doctor as Ex-ka-3. In his cross examination, multiple firearm injuries were found on the body of the injured and was denied to re-examination but no supplementary report was prepared. He stated that on the basis of X-ray report of Surgeon he could not say that the injury is grievous in nature. (v) PW-5, S.I., Shyam Narayan Singh who is the investigating officer of this case. In his cross examination, he stated that after recording the evidence of eye witnesses as well as the first informant, he prepared the site plan as Ex-ka-4. On 9.3.1996 he collected the bloodstained cloth of the injured Ikrar and on 12.3.1996 he arrested the accused appellant and after collecting the evidence he filed firstly the charge-sheet against the appellant and proved it as Ex-ka-5 and the charge sheet against the other co-accused was proved as Ex-ka-6. 6. After recording the evidence of the witnesses, the remaining police paper was admitted U/s 294 CrPC in which the chik report was proved as Ex-ka-7 and G.D. as Ex-ka-8. 7. The prosecution relied on the statement of PW-1 to PW-5 as oral evidence as well as documentary evidence of Ex-ka-1 to Ex-ka-8 and material Exb. 1 to Exb. 3. 8. After conclusion of the prosecution evidence, statements of all the appellants were recorded U/s 313 CrPC in which they stated that they have been falsely implicated in the case. But they did not choose to lead any evidence in their defence. 9. After hearing both the parties, learned trial court only convicted the appellant Sudarshan U/s 307 IPC as aforesaid and exonerated all the co-accused by order dated 16.3.1999. 10. Being aggrieved with this order, this appeal has been preferred by the appellant. 11. Learned counsel for the appellant submitted that the appellant is innocent and has been falsely implicated in the case. During course of argument, he stated the prosecution witnesses have not corroborated the prosecution case at all. 10. Being aggrieved with this order, this appeal has been preferred by the appellant. 11. Learned counsel for the appellant submitted that the appellant is innocent and has been falsely implicated in the case. During course of argument, he stated the prosecution witnesses have not corroborated the prosecution case at all. The injured Ikrar Ahmad stated the injury was inflicted on non vital part of his body, which was simple in nature as per injury report. Learned trial without appreciating the evidence available on record wrongly convicted the appellant. It is further submitted that if the case of the prosecution is admitted as such then there are several contradictions in the statement of the injured and other witnesses. 12. Learned counsel for the appellant further submitted that on perusal of the injury report of the injured, it transpires that the injury was simple in nature because the seat of injury is on non vital part of the body of the injured and no any injury was fatal. It is also submitted that the injured was not admitted in hospital even a single day. If it is admitted that the injury caused by firearm, then in these circumstances, prima facie offence U/s 307 IPC is not made out against the appellant and the injury which was inflicted on the injured does not travel beyond Section 324 IPC. 13. Learned counsel for the appellant submitted that at the time of incident, the appellant was aged about 21 years and this is the first case against the appellant. Thus he prayed for probation before the trial court but the trial court convicted the appellant. It is further submitted that during course of trial and during pendency of appeal, he remained in jail for about two months. It is also submitted that presently the appellant, the first informant and the injured are well rooted in society and no useful purpose shall be served again sending the appellant to jail after 24 years. The matter pertains to year 1996 and as such about 27 years have already elapsed till date of incident. There are several mitigating circumstances. 14. Lastly, learned counsel for the appellant prays for leniency of the court and the benefit of probation be given to the appellant. 15. Learned AGA submitted that the prosecution fully established the case beyond reasonable doubt. As the firearm injury was inflicted on the injured. There are several mitigating circumstances. 14. Lastly, learned counsel for the appellant prays for leniency of the court and the benefit of probation be given to the appellant. 15. Learned AGA submitted that the prosecution fully established the case beyond reasonable doubt. As the firearm injury was inflicted on the injured. There is no reason for false implication of the appellant and after appreciating the evidence available on record, the trial court rightly convicted the appellant. So he does not deserved the benefit of probation and leniency of the Court. 16. I have heard Mr. Prem Shankar, learned counsel for the appellant, Ms. Shikha Sinha, learned AGA appearing for the State and perused the material available on record. 17. I have perused the entire material available on record. On perusal of the seat of injury, it reveals that during course of investigation the investigating officer did not collect any supplementary report and this fact is admitted that the injured was never admitted in hospital even a single day and the injury was inflicted on non vital part of the body of the deceased. So in my considered opinion, the punishment U/s 307 IPC is too harsh and prima facie Section 324 IPC is made out against the appellant. Thus, conviction U/s 307 IPC is converted into Section 324 IPC. Since during pendency of this appeal, the total incarceration period of the appellant is about two months, so it is not desirable to again send him to jail. The appellant has no criminal antecedents except this case. This is the first case against him. So benefit of probation may be given to the appellant. 18. Considering the entire facts and circumstances of the case, I am of the view that in the instant case, the appellant was convicted five years rigorous imprisonment. Insofar as the case is concerned, about 27 years have already elapsed. Further, the offence does not travel beyond the provision of Section 324 IPC. So it is desirable to see the provision of Section 324 IPC which reads as under : "324. Insofar as the case is concerned, about 27 years have already elapsed. Further, the offence does not travel beyond the provision of Section 324 IPC. So it is desirable to see the provision of Section 324 IPC which reads as under : "324. Voluntarily causing hurt by dangerous weapons or means.—Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 19. Since learned counsel for the appellants restricted his arguments to grant punishment of probation, therefore, in these circumstances, It would be appropriate to quote Section 360 Cr.P.C., 361 Cr.PC. reads as follows:- Section 360 Cr.P.C. reads as follows: "360. Since learned counsel for the appellants restricted his arguments to grant punishment of probation, therefore, in these circumstances, It would be appropriate to quote Section 360 Cr.P.C., 361 Cr.PC. reads as follows:- Section 360 Cr.P.C. reads as follows: "360. Order to release on probation of good conduct or after admonition :- (1) When any person not under twenty one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, Character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that, where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before such Magistrate, who shall dispose of the case in the manner provided by sub-section (2). (2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken. (3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years, imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition. (4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu, thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this subsection inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted. (6) The provisions of Sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section. (7) The Court before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognisance, it may issue a warrant for his apprehension. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognisance, it may issue a warrant for his apprehension. (9) An offender, when apprehended on any such warrant shall be brought forthwith before the Court issuing warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and Court may, after hearing the case, pass sentence. (10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1951), the Children Act, 1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders." Section 361 Cr.P.C. reads as under:- 361. Special reasons to be recorded in certain cases. Where in any case the Court could have dealt with,- (a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or (b) a youthful offender under the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so. Sections 3, 4 and 5 of the Probation of First Offenders Act read as under:- Section 3-Power of court to release certain offenders after admonition. Sections 3, 4 and 5 of the Probation of First Offenders Act read as under:- Section 3-Power of court to release certain offenders after admonition. When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition. Explanation.—For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4. Section 4 Power of court to release certain offenders on probation of good conduct. Explanation.—For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4. Section 4 Power of court to release certain offenders on probation of good conduct. (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned. Section 5-Power of court to require released offenders to pay compensation and costs. (1) The court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay— (a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and (b) such costs of the proceedings as the court thinks reasonable. (2) The amount ordered to be paid under sub-section(1) may be recovered as a fine in accordance with the provisions of sections 386 and 387 of the Code. (3) A civil court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account any amount paid or recovered as compensation under sub-section (1) in awarding damages. There are other legislative requirements that need to be kept in mind. The Probation of Offenders Act provides, in Section 5 thereof for payment of compensation to the victim of a crime (as does Section 357 of the Code of Criminal Procedure). Yet, additional changes were brought about in the Code of Criminal Procedure in 2006 providing for a victim compensation scheme and for additional rights to the victim of a crime, including the right to file an appeal against the grant of inadequate compensation. How often have the Courts used these provisions? 20. Yet, additional changes were brought about in the Code of Criminal Procedure in 2006 providing for a victim compensation scheme and for additional rights to the victim of a crime, including the right to file an appeal against the grant of inadequate compensation. How often have the Courts used these provisions? 20. In Ankush Shivaji Gaikwad v. State of Maharashtra, MANU/SC/0461/2013 : (2013) 6 SCC 770 and Jitendra Singh v. State of U.P., MANU/SC/0679/2013 : (2013) 11 SCC 193 the Court held that consideration of grant of compensation to the victim of a crime is mandatory, in the following words taken from Ankush Shivaji Gaikwad : "While the award or refusal of compensation in a particular case may be within the court's discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation." 21. It is hereby directed that the fine of Rs.500/- awarded to the appellant by the trial court is enhanced to Rs.10,500/- out of which Rs.500/- shall be deposited in State Exchequer and remaining amount of Rs.10,000/- shall be payable to the injured, Ikrar Ahmad U/s 357 CrPC. If the appellant fails to deposit the aforesaid amount within 15 days from the date of order of this Court, then he shall undergo sentence of one year. 22. Thus, the appeal is dismissed on the point of conviction U/s 324 IPC and partly allowed on the point of sentence. 23. Office is directed to communicate this order to the trial court concerned for necessary compliance. The trial court record be sent back.