Suresh vs State of Haryana

SURYA PARTAP SINGH, J.

Both the appeals have been filed by the appellants against the judgment of conviction dated 27.10.2005 and order of sentence dated 29.10.2005, passed by the Court of learned Additional Sessions Judge (Fast Track Court) Bhiwani, hereinafter being referred to as ‘trial Court’ only.

Briefly stating the facts emerging from record are that one FIR, i.e. the FIR No.342 dated 11.10.2003, was registered at the instance of ‘Rajpal’, hereinafter being referred to as ‘complainant’ only, for the commission of offence punishable under Sections 307, 323, 34 of Indian Penal Code and Section 25 of Arms Act, Police Station Sadar Bhiwani. In the wake of abovementioned FIR, the investigation was taken up by the police, and as an outcome of abovesaid investigation, the appellants were sent to face trial before the learned trial Court.

The appellants participated in the abovementioned trial. By virtue of impugned judgment, the abovesaid trial culminated into conviction of the appellants and acquittal of co-accused, namely ‘Bir Singh’, ‘Ranjeet Singh’ and ‘Jitender’. Thus, vide order dated 29.10.2005, on the point of quantum of sentence, following sentences were awarded to the appellants:-

All the sentences were ordered to run concurrently.

Aggrieved of the abovementioned judgment of conviction and order of sentence, the present appeals have been preferred.

In nut-shell, the facts emerging from record are that the FIR of this case came into being at the instance of ‘Rajpal’, the complainant. It was stated by the above-named complainant that on 10.10.2003, at about 08:45 pm, he was coming from his old house to his new house, and that on the way near a shop, ‘Suresh’, ‘Ranjeet’, ‘Bir Singh’, ‘Sanjay’, and ‘Mota’ were present.

According to the complainant, when he crossed the abovementioned persons, and reached near the temple of ‘Chander Bhan’, in the street, he heard footsteps. The complainant further stated that when he turned around, he found ‘Suresh’ holding a pistol, who thereafter fired a gunshot upon him. As per the complainant, when he tried to save himself, the bullet hit his left shoulder on the front side, due to which he fell down, and thereafter, ‘Sanjay’ inflicted a danda blow on his head (right side). According to complainant, he had suffered injuries on his right eye and ear. The complainant further alleged that thereafter ‘Ranjeet’, ‘Bir Singh’, and ‘Mota’ exhorted to teach him lesson. According to complainant, later on his uncle ‘Om Pal @Omi’ and his wife ‘Saroj Devi’ reached the spot and thereafter all five assailants fled from the spot.

It was case of the prosecution that pursuant to abovementioned statement, formal FIR of this case was lodged and the investigation taken up. According to prosecution, during the course of investigation, the Investigating Officer inspected the spot, prepared rough site plan of the place of occurrence, recorded the statement of witnesses under Section 161 CrPC, and completed other usual formalities of investigation. Thereafter, the final report under Section 173 of CrPC was filed.

To discharge its burden with regard to proving of charge against the appellants, the prosecution in the instant case had relied upon documentary as well as oral evidence. The documents proved and marked with exhibits, by the prosecution, were:-

Ex.PA - Affidavit of Ct. Sita Ram

Ex.PB - Affidavit of HC Ram Kishan

Ex.PC - Scaled site plan of the place of occurrence

Ex.PD - Recovery memo of danda from appellant ‘Sanjay Singh’

Ex.PE - First Information Report

Ex.PA - Statement of complainant

Ex.PA/1 - Endorsement on the statement of complainant

Ex.PF - Affidavit of Ct. Raghubir Singh

Ex.P1 to P7 - X-ray films

Ex.PG - Bed head ticket of ‘Rajpal’ (complainant)

Ex.PH - Sketch of recovered pistol

Ex.PH/1 - Seizure memo of pistol

Ex.PH/2 - Seizure memo of cell watch, Rs.800/- and a mobile phone

Ex.PJ/1 - The information memo sent to the police station (ruqqa)

Ex.PJ/2 - Police moved application before doctor regarding fitness of injured

Ex.PJ/3 - Opinion of doctor regarding nature of injuries suffered by the injured

Ex.P8 - Bullet

Ex.P9 - Recovery memo of danda (stick)

Ex.P10 - Recovery memo of pistol

Ex.P11 - Shirt

Ex.PM - Recovery memo of shirt

Ex.PN - Rough site plan on pointing out of ‘Ompal’ with correct marginal notes

To provide support and corroboration to the above-mentioned documentary evidence, as many as eighteen witnesses were examined by the prosecution. They were:-

PW-1 - Ct. Sita Ram

PW-2 - HC Ram Kishan

PW-3 - EHC Niranjan Singh

PW-4 - Inspector Hoshiar Singh

PW-5 - Amir Chand Taneja, Draftsman

PW-6 - L/Ct. Hem Lata

PW-7 - Inspector Sher Singh

PW-8 - Ct. Raghubir Singh

PW-9 - Rajpal Singh, the complainant

PW-10 - Saroj Devi

PW-11 - Dr. Anil Sharma

PW-12 - Bisham Chander

PW-13 - Ved Bhushan

PW-14 - HC Rajbir

PW-15 - Dr. Rajender Rai

PW-16 - Dr. Virender Nagpal

PW-17 - SI Hawa Singh

PW-18 - SI Randhir Singh

Once the prosecution evidence was complete, the learned trial Court completed all the essential formalities, enshrined under Section 313 CrPC. Thereafter, opportunity of defence evidence was afforded to the appellant. In their defence, the appellants had examined only one witness, i.e. DW-1 ‘Ompal @Omi’.

Once the evidence of both the parties was complete, the learned trial Court gave opportunity to the learned public prosecutor and the learned counsel for the appellants to address arguments. Thereafter, a judgment of conviction, against the appellants, was pronounced and, accordingly, the appellants were sentenced to undergo imprisonment, as detailed hereinabove.

Heard.

It has been contended on behalf of appellants that the impugned judgment of conviction and order of sentence deserve to be set aside, as both of them are outcome of non-application of judicial mind. According to learned counsel for the appellants, the learned trial Court had failed to appreciate that necessary ingredients meant for the commission of offence under Sections 307/323/34 of IPC and 25 of Arms Act were not proved by the prosecution, and that the prosecution evidence was grossly inadequate to meet the standard, prescribed under the law, for proving a charge. As per learned counsel for the appellants, merely, on the basis of conjectures and surmises, as well as assumptions and presumptions, the learned trial Court held that charge for the offence under Section Sections 307/323/34 of IPC and 25 of Arms Act were successfully proved against the appellants. The learned counsel for the appellants has further contended that the appellants have been wrongly held guilty, and convicted, by the learned trial Court.

However, during the course of arguments, the learned counsel for the appellants has contended that in the instant appeal, the appellants are not inclined to challenge the finding of conviction recorded by the learned trial Court. The learned counsel for the appellants has categorically contended that at this stage, by virtue of present appeal, the appellants are challenging the order on the point of quantum of sentence only.

It has been further contended by learned counsel for the appellants that the incident had taken place way back in the year 2003. According to learned counsel for the appellants, the appellants are facing the agony of litigation for the last more than 23 years and have, in fact, already suffered more punishment than they deserved.

In addition to above, the learned counsel for the appellants has also argued that in the present case, the appellant, namely ‘Suresh’, has already undergone imprisonment for a period of two years, eight months & two days and appellant ‘Sanjay Singh’ for two years, seven months & two days. According to learned counsel for the appellants, in view of above-discussed factors, and the fact that minimum sentence has not been prescribed for the offence, for which the appellants have been convicted, the sentence already undergone by the appellants may be treated to be sufficient.

Per contra, the learned State Counsel has argued that the appellants have been found guilty for the commission of offence punishable under Sections 307/323/34 of IPC and Section 25 of Arms Act. According to learned State Counsel, the sentence awarded to the appellants, i.e. imprisonment for a period of five years, is already on lower side, and that the appellants are not entitled to a sentence of less than five years. As per learned State Counsel, the instant appeal has no merit and deserves dismissal.

The record has been perused carefully.

Once it is categorical stand of the appellants that they are not challenging the judgment of conviction, passed by the learned trial Court, it is hereby held that there is no scope for interference or indulgence in the findings recorded by the learned trial Court, with regard to conviction of appellants, for the offence under Sections 307/323/34 of IPC and Section 25 of Arms Act. Accordingly, the abovementioned finding is hereby affirmed and qua the judgment of conviction instant appeal is hereby dismissed.

As far as the order on quantum of sentence is concerned, in view of the fact that the appellant, namely ‘Suresh’, has already undergone imprisonment for a period of two years, eight months & two days and appellant ‘Sanjay Singh’ for two years, seven months & two days, against the awarded sentence of five years, it is hereby held that the appellants are entitled to a lenient view.

In view of abovementioned observations, the sentence awarded to the appellants is hereby held to be harsh and, as a consequence thereof, it is hereby observed that with regard to quantum of sentence, there is need for interference and indulgence in the impugned order on the point of quantum of sentence, by exercising the appellate jurisdiction vested in this Court. Thus, in my opinion, by exercising the abovementioned jurisdiction, the sentence awarded to the appellants needs to be rationalized and reduced.

In the light of above observations, if the factual matrix of present case is analyzed, it transpires that following are the points which are required to be taken into consideration: -

As a cumulative effect of abovementioned observations, it is hereby held that in the present case, the appellants are entitled to a lenient view, and that the sentence already undergone in the present case, is adequate to meet the ends of justice.

As a sequel to the aforesaid discussions, the present appeal is hereby partly allowed. The judgment of conviction is upheld; but order on the point of quantum of sentence is modified, and the sentence awarded to the appellants is reduced to the period already undergone by them.

Pending miscellaneous application(s), if any, stand(s) disposed of, accordingly.

A photocopy of this order be placed on the file of connected case.