CRLA/227/2002 of RAJENDRA GUPTA Vs STATE on 30 December 2013

JUDGMENT

U.C. Dhyani, J. (Oral)

Since the above noted criminal appeals arise out of one judgment and order, therefore, they are being decided by this common judgment and order for the sake of brevity.

2. A first information report was lodged by PW1 Ram Prakash Tiwari against accused persons on 22.08.1990 in PS Jwalapur, Haridwar. Investigation began when the criminal law was set into motion by PW 1. After the investigation, a charge-sheet was submitted against four accused persons including the appellants for the offence punishable under Section 307 IPC. A separate charge-sheet under Section 25 Arms Act was also filed against accused-appellants Rajendra Gupta and Baiju Yadav. The cases were committed to the Court of Sessions.

3. When the trial began and prosecution opened it’s case, charge for the offence punishable under Section 307 IPC was framed against the appellant Rajendra Gupta. Separate charge under Section 25 Arms Act were also framed against the accused-appellants, who pleaded not guilty and claimed trial. PW 1 Ram Prakash Tiwari (injured), PW 2 Dhan Prakash, PW 3 Kunwar Bahadur, PW 4 Rajeshwar Tyagi, PW 5 ASI Naresh Chandra Sharma, PW 6 Dr. V.K.Mittal, PW 7 Rishi Modi, PW 8 Head Constable Ganga Sahay and PW 9 SSI Dilip Kumar were examined on behalf of the prosecution. DW 1 Smt. Vidya and DW 2 Fateh Singh were examined in defense. Incriminating evidence was put to the accused persons under Section 313 Cr.P.C., in reply to which they said that they were falsely implicated in the case. After considering the evidence on record, learned Additional Sessions Judge/Ist FTC, Haridwar, held the accused Rajendra Gupta guilty of the charge under Section 307 IPC and directed him to undergo rigorous imprisonment for a period of seven years along with fine of Rs. 1500/-, in default of which, he was directed to undergo three months’ further rigorous imprisonment. Accused Rajendra Gupta was also convicted under Section 25 Arms Act and was directed to undergo three years’ rigorous imprisonment. Co-accused-appellant Baiju Yadav was also convicted under Section 25 Arms Act, and was directed to undergo three years’ rigorous imprisonment. Both the sentences awarded to accused Rajendra Gupta were directed to run concurrently. Aggrieved against the judgment and order dated 03.09.2002, present criminal appeals were preferred on behalf of the convict-appellants.

4. PW 1 is the informant as well as the eyewitness. He has supported the prosecution story. In his examination-in-chief, he has said that he was a member of Nagar Palika. Appellant Rajendra Gupta lived in his vicinity. Rajendra Gupta’s wife Kunti Gupta contested the election of corporator against PW 1. Rajendra Gupta and his wife were inimical to him. They used to hurl abuses and also threatened him with dire consequences. On 22.08.1990, at 7:00 pm, Rajendra Gupta along with his companions started abusing him. PW 1 and his employees enquired from them the reasons for hurling such abuses. The neighbourers entered into the house of Rajendra Gupta. They came out with country-made pistol and sharp-edged weapons. Rajendra Gupta fired upon PW 1 with the intention of killing him, which fire hit Rajeshwar Tyagi, who was his (Ram Prakash Tiwari’s) employee. Police reached at the place of incident. Rajendra Gupta was arrested. He disclosed his companions’ names to the Police. Country-made pistols were recovered from the possession of Rajendra Gupta and his companion Baiju Yadav. The other companions were armed with sharp edged weapons.

5. PW 4, in his examination-in-chief, supported the prosecution story saying that accused-appellant Rajendra Gupta, although fired upon PW 1, but such fire hit the leg of PW 4. PW 4 identified Rajendra Gupta, who was arrested on the spot. PW 1 and PW 4 were cross-examined on behalf of the appellants, but nothing came out in their cross-examination to suspect that they were telling a lie or that their statements be treated with suspicion.

6. PW 9 was the investigating officer, who conducted the investigation of the case and after being satisfied that the accused persons committed the alleged crime, filed a charge-sheet against them. A separate charge-sheet under Section 25 of the Arms Act was filed against Baiju Yadav. PW 2, PW 3 and PW 7 did not support the prosecution story. These witnesses were declared hostile. PW 8 was a formal witness. PW 5 recovered illegal arms from the possession of Rajendra Gupta and Baiju Yadav. PW 5 also witnessed the injury in the leg of PW 4.

7. The oral testimony rendered by PW 1 and PW 4 was corroborated by PW 6, who was posted as Medical Officer in PHC, Jwalapur on 22.08.1990. PW 6 examined the injuries of PW 4 on the selfsame day at 9:20 pm. PW 6 found the following injuries on the person of PW 4:

(1) Multiple firearm wounds of entry measuring 0.3 cm x 0.3 cm to 0.2 cm x 0.2 cm on left part front inner and outer part, extending from top of big toe, 1[st ]to 2nd toe to 3.00 cm below inner mallows of leg bone with wounds of exit 1.00 cm x 0.5 cm to 0.5 cm to 0.5 cm or sole of left foot. Bleeding and oozing from all wounds …………….

8. According to PW 6, injury was caused by fire arm, duration of injury was fresh. Thus PW 6 lends assurance to the oral testimony of PW 1, PW 4 and also proved injury report of PW 4 as exhibit Ka-3.

9. In the cross-examination, PW 6 said that the injuries were simple and were not fatal. The injuries sustained by PW 4 were not on the vital part. There was no tattooing and blackening. Thus offence punishable 324 IPC was established on the basis of evidence of PW 1, PW 4 and PW 6. Offence under Section 25 Arms Act was also proved beyond shadow of reasonable doubt on the basis of oral testimony of PW 1 and PW 5. There was also compliance of Section 39 of the Arms Act. PW 4 supported the prosecution story as regards firing by Rajendra Gupta on PW 1, but denied having recovered illegal arms from the possession of the appellants in his presence. The testimony rendered by DW 1 and DW 2 was in the form of negative evidence and, therefore, requires no discussion.

10. Learned counsel for the appellant/amicus curiaeconceded during the course of arguments that there was no much in the criminal appeals to defend the appellants. He fairly conceded that the prosecution story stood established on the strength of oral testimony of PW 1, PW 4, PW5 and PW 6. The only prayer which is made by learned counsel for the appellant/amicus curiae is that the sentences awarded to the appellants be reduced.

11. Learned trial court appropriately discussed the prosecution evidence and correctly appreciated the same to hold that the prosecution was able to prove the case against the appellants beyond as a shadow of reasonable doubt. The only modification which is required in the impugned judgment is that the convict-appellant Rajendra Gupta should have been convicted and punished under Section 324 IPC, instead of offence punishable under Section 307 IPC. The sentences awarded to the appellant, therefore, should also to be reduced. This Court has also independently assessed the prosecution evidence to hold that charge under Section 324 IPC, and not under Section 307 IPC, was proved against the appellant Rajendra Gupta. Offence punishable under Section 25 Arms Act was also proved against him, as also against co-accused Baiju Yadav.

12. Whereas Criminal Appeal No. 227 of 2002 is partly allowed, Criminal Appeal No. 240 of 2002 is dismissed, but for reduction in sentence. Instead of convicting the appellant Rajendra Gupta under Section 307 IPC, he is held guilty and convicted under Section 324 IPC. He is sentenced to undergo rigorous imprisonment for two years for the said offence.

13. While convict-appellant Rajendra Gupta is also convicted under Section 25 Arms Act, he is sentenced to undergo one year’s rigorous imprisonment. The sentence awarded to him by learned trial court for the offence punishable under Section 25 Arms Act is thereby reduced. Appellant Baiju Yadav is also sentenced to undergo rigorous imprisonment for one year as regards offence punishable under Section 25 Arms Act. The sentence awarded to him also for the aforesaid charge is reduced. Both the sentences (under Section 324 IPC and Section 25 Arms Act) awarded to the appellant Rajendra Gupta shall run concurrently. The accused-appellants are on bail. Their bail is cancelled. They are directed to surrender forthwith before the Court below to serve out the sentences, as are modified by this Court.

14. Let a copy of this judgment along with lower court record be sent to the Court below for compliance.

(U.C. Dhyani, J.)