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Thursday, April 30, 2015

the appellant was constable on duty posted at the police station. It is also not disputed that the incident has occurred in the night in a Naxalite area. It is also evident from the record that it is a case of sudden quarrel and heated exchange of words between the injured and the appellant, who was armed with rifle. Considering all the facts and circumstances of the case in totality, though we find no error committed by the courts below in convicting the accused in respect of charge of offences punishable under Sections 294, 506 Part II, 324 and 326 IPC, but, in our opinion, in the present case, reducing the period of sentence to already undergone (which is more than one year) would meet the ends of justice.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO.    707  OF 2015
               (Arising out of S.L.P. (Crl.) No. 8106 of 2014)

Vipul Kumar @ Vipulesh                       … Appellant

                                   Versus

State of Chhattisgarh                        …Respondent




                               J U D G M E N T


Prafulla C. Pant, J.


This appeal is directed against judgment and order dated  October  3,  2013,
passed by the High Court of Chhattisgarh in  Criminal  Appeal  No.  1322  of
2003 whereby said Court has affirmed the conviction  and  sentence  recorded
by Additional Sessions Judge, Khairagarh, District Rajnandgaon,  in  Session
Case No. 58 of 2003, against  accused/  appellant  Vipul  Kumar  @  Vipulesh
under Sections 294, 324, 326 and 506 Part II of Indian Penal Code (IPC).

It is pertinent to mention here that we have issued notice  in  this  appeal
only on the quantum of sentence at the  time  of  entertaining  the  Special
Leave Petition.


We have heard learned counsel for the parties  and  perused  the  papers  on
record.


Prosecution story, in brief, is that on 19.1.2003 at about  10.30  p.m.,  an
unknown person entered in the  house  of  PW-4  Kamal  Singhaniya  and  PW-3
Subodh Singhaniya.  Both  of  them,  with  the  help  of  PW-12  Om  Prakash
Agrawal, caught the trespasser, suspecting that he had entered the house  to
commit  theft,  and  took  him  to  police  station,  Gandai.   PW-3  Subodh
Singhaniya lodged First Information Report against the  person  apprehended.
But the present appellant Vipul Kumar @ Vipulesh  Constable  at  the  police
station, instigated the person apprehended by  PW-3  Subodh  Singhaniya  and
others, and asked him to  lodge  report  against  them.   When  PW-3  Subodh
Singhaniya  protested  and  questioned  the  appellant  as  to  why  he  was
protecting a wrong person, he (appellant) started hurling abuses,  and  used
fowl  and  vulgar  language  against  Subodh  Singhaniya  and  others.   The
appellant did not stop there and he took up rifle, and fired  shots  due  to
which  PW-4  Kamal  Singhaniya  and  one  Rajesh  Motwani  (PW-9)  sustained
injuries.  As such, First Information Report (Ex. P/20) in  connection  with
this case was lodged at the Police Station,  Gandai.   Injured  PW-9  Rajesh
Motwani and PW-4  Kamal  Singhaniya  were  taken  to  hospital  for  medical
treatment.  PW-2 Dr. G.S. Thakur recorded  in  his  report  (Ex.  P/16)  the
injuries found on the person of above named  injured,  and  prepared  injury
report (Ex. P/17).  Thereafter,  the  injured  were  referred  from  primary
health centre, Gandai to Sector-9 Hospital, Bhilai where  also  injuries  on
left thigh, testis, scrotum and penis  of  PW-4  Kamal  Singhaniya,  and  in
respect of Rajesh Motwani gunshot injuries  suffered  on  his  right  thigh,
were recorded.  The injuries on the person of Kamal  Singhaniya  were  found
to be grievous in nature, while injuries sustained by  Rajesh  Motwani  were
simple in nature.  Three bullets were taken  out  from  the  body  of  above
injured persons.  From the possession of the appellant Rifle  (SLR)  and  47
cartridges with two empty magazines  were  seized.   Recovered  bullets  and
above mentioned armoury were examined by PW-8  Girija  Shankar  Shrivastava,
who conducted armour examination and gave his  report  (Ex.  P/25).   Sealed
Rifle, cartridge cases, recovered from the appellant, and bullets found  and
blood-stained clothes of the injured were sent for  examination  to  Central
Forensic   Science   Laboratory,   Chandigarh.     After    completion    of
investigation,  charge  sheet  was  filed  against  accused  Vipul  Kumar  @
Vipulesh.

After the case was committed  to  the  Court  of  Sessions,  the  Additional
Sessions Judge, Khairagarh, framed charge in respect of offences  punishable
under Sections 294, 506 Part II and 307 IPC, to which  the  accused  pleaded
not guilty and claimed to be tried.


On this, prosecution examined PW-1 G.P. Sharma, PW-2 Dr. G.S. Thakur,  PW-3,
Subodh Kumar Singhaniya, PW-4 Kamal Singhaniya, PW-5 Dr. M.G.  Tiwari,  PW-6
Narayan Prasad Sharma, PW-7 Roop Lal Patel (Patwari),  PW-8  Girija  Shankar
Shrivastava, PW-9 Rajesh Motwani,  PW-10  Amit  Agrawal,  PW-11  Dr.  Jogesh
Chandra Maruhal, PW-12 Om Prakash Agrawal and PW-13 S.I. T.R. Sahu.


The oral and documentary evidence was put to the accused, in reply to  which
he took the defence that on 19.1.2003, he was on duty to  guard  the  police
station between 9.00 p.m. to 11.00  p.m.,  and  the  Station  In-charge  had
instructed him not to allow more  than  two  persons  to  enter  the  police
station.  The accused further  took  the  plea  that  since  more  than  two
persons attempted to enter the police station and  started  quarreling  with
him, he had to open fire in air.   He  further  submitted  that  the  police
station is  in  Naxalite  area.   In  defence,  DW-1  Uttamchandra  Rao  was
examined.  The trial court,  after  hearing  the  parties,  found  that  the
prosecution has successfully proved the charge of offences punishable  under
Sections 294, 506 Part II, 324 and 326 IPC.  After hearing  the  parties  on
sentence, the trial court sentenced the appellant to  rigorous  imprisonment
for a period of three months under Section 294  IPC,  rigorous  imprisonment
for a period of one year under Section 506 Part  II,  rigorous  imprisonment
for  a  period  of  three  years  under  Section  324  IPC,   and   rigorous
imprisonment for a period of seven years under Section 326 IPC.

Aggrieved by said  judgment  and  order  dated  15.12.2003,  passed  by  the
Additional Sessions Judge, Khairagarh in  Sessions  Case  No.  58  of  2003,
convict Vipul Kumar @ Vipulesh  filed  Criminal  Appeal  No.  1322  of  2003
before  the  High  Court.   The  High  Court,  after  hearing  the  parties,
concurred with the view taken by the trial court that the charge in  respect
of offences punishable under Sections 294, 506 Part  II,  324  and  326  IPC
stood proved on the record and  declined  to  interfere  with  the  sentence
awarded against him, as such, the criminal  appeal  was  dismissed.   Hence,
this appeal through special leave.


Only point argued before us, in this appeal, is that the courts  below  have
erred in law in not considering the fact that the appellant  was  posted  at
the police station in Naxalite area and the act committed by him was due  to
sudden fight and provocation.  It is further pointed out that the  appellant
had already spent more than one year in jail.  It is pleaded before us  that
the sentence awarded by the trial court and affirmed by the High  Court,  is
too harsh in the facts and circumstances of the case.


It is undisputed fact that the appellant was constable  on  duty  posted  at
the police station.  It is also not disputed that the incident has  occurred
in the night in a Naxalite area.  It is also evident from  the  record  that
it is a case of sudden quarrel and heated  exchange  of  words  between  the
injured and the appellant, who was armed with rifle.   Considering  all  the
facts and circumstances of the case in totality, though  we  find  no  error
committed by the courts below  in  convicting  the  accused  in  respect  of
charge of offences punishable under Sections 294, 506 Part II, 324  and  326
IPC, but, in our opinion, in  the  present  case,  reducing  the  period  of
sentence to already undergone (which is more than one year) would  meet  the
ends of justice.


Accordingly, we partly allow this appeal.  The conviction  recorded  against
the appellant is not interfered with.  However, the sentence awarded by  the
trial court is reduced  to  the  period  already  undergone  in  respect  of
offences found to have  been  proved  against  him.   He  shall  be  set  at
liberty, if not required in connection with any other crime.



                                                           ……………….....…………J.
                                                               [Dipak Misra]



                                                             .……………….……………J.
New Delhi;                        [Prafulla C. Pant]
April 28, 2015.


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