Chheda Lal (in Jail) vs State of U.P.

M.C. Jain, J.—The Appellant is one Chhedalal who has preferred this appeal against the judgment and order dated 16.2.1981, passed by Sri Usha Kant Verma, the then Sessions Judge, Kanpur Dehat in Sessions Trial No. 200 of 1980, State v. Chhedalal. He has been convicted u/s 326, I.P.C. and sentenced to undergo four years rigorous imprisonment.

The accused Appellant allegedly killed Ram Shankar in village Bilgavan, P. S. Sajeti, district Kanpur on 19.2.1980 at about 8 p.m. by shooting. The report was lodged by Gore Lal, brother of the deceased the same night at 2.50 a.m. The Appellant had brought the victim with him and after half an hour, sound of firing was heard from his house. The witnesses ran to the house of the Appellant on hearing the sound of firing and found Ram Shankar to be injured by shot. He had been hit in his leg and the pellets had been pierced through and through. On being asked, he stated that Chhedalal Appellant complained that he had been backbiting him in the village and then opened fire on him. Gore Lal and others searched for Chhedalal. He, however, ran away from his house. The victim because of excessive bleeding, became unconscious after some time. Originally, a case u/s 307, I.P.C. was registered. However, he after having been removed to the hospital, died and the case was converted into that of Section 302, I.P.C.

The injuries sustained by him was gunshot wound of entry 2 cm. - 2 cm. at the lower end of the right thigh with margins inverted. Blackening was present in an area of 6 cm. - 4.5 cm. around. There was corresponding gunshot wound of exit. In the beginning, he had been examined by Dr. N. Hasan, P.W. 3 in U.H.M. Hospital, Kanpur, on 20.2.1980 at 2.10 a.m. Post-mortem over his dead body was conducted by Dr. Jai Prakash, P.W. 4 on 22.2.1980 at 4.05 p.m. About 2-1/2 days had passed since he died. He was aged about 22 years.

The defence was of denial. The accused Appellant stated u/s 313, Cr. P.C. that the deceased was carrying on love affair with Mamta, daughter of Baij Nath Pradhan and Ram Shanker was inimical to the said Pradhan. According to him, Ram Shankar was his friend and on the date of incident, he himself had gone to his uncle.

The prosecution in all examined six witnesses. Gorelal P.W. 1 is the brother of the deceased and Subedar P.W. 2 is another witness of fact, whose name finds place in the F.I.R. also. Both of them proved that the accused Chhedalal had taken with him Ram Shankar and after half an hour, the sound of shot had been heard from the house of the accused Appellant. They rushed and saw Ram Shankar lying injured in the dalan of the Appellant, adjacent to chabutra. He was profusely bleeding and on being inquired, disclosed that Chhedalal Appellant charged him of backbiting and opened shot on him. A lighted lantern was hanging at the gate of the Appellant at that time. Both of them also saw the Appellant running from the spot.

On appraisal of evidence, the court below found that the injury had been caused on leg (non-vital part), though the Appellant could have shot the victim on the chest or some other vital part also. The doctors also did not say that the injury on the lower part of the leg of Ram Shankar was likely to cause death. Therefore, it was found that only the offence punishable u/s 326, I.P.C. had been made out.

I have heard Sri R. C. Singh, assisted by Sri Mayank Bhushan as also Sri P. K. Singh who was appointed as amicus curiae under order dated 26.8.2002, from the side of the Appellant. Learned A.G.A. has been heard in opposition of the appeal.

Learned Counsel from the side of the Appellant could not point out any flaw or infirmity in the finding recorded by the lower court so far as the shooting of the victim by the Appellant was concerned. The finding is perfectly justified and in tune with the evidence that has come on record. It could not be assailed even by testing it through cross-examination. Though the life of a youngman was cut short, but having regard to the seat of injury, learned trial Judge also took the most lenient view possible under law.

Learned Counsel for the Appellant, however, urged for leniency. Four years'' rigorous imprisonment has been awarded by the lower court and the judgment was passed on 16.2.1981. The ends of justice would be met if the sentence of the Appellant is modified to three years'' rigorous imprisonment with fine of Rs. 5,000. In default of payment of fine, he shall have to undergo further rigorous imprisonment of six months.

The appeal is, accordingly, partly allowed. The conviction of the Appellant Chhedalal u/s 326, I.P.C. is maintained but his sentence is modified in that he shall undergo three years'' rigorous imprisonment and shall pay a fine of Rs. 5,000 u/s 326, I.P.C. In default of payment of fine, he shall undergo further rigorous imprisonment for six months. Presently, he is in jail. He shall serve out the sentence awarded to him.

Sri P. K. Singh, learned amicus curiae shall get Rs. 500 as fee.

The office shall send the copy of this judgment along with the record to the court below to ensure compliance of this judgment within two months under intimation to this Court.