Rajasthan High Court - Jaipur
Yogesh Kumar vs State Of Rajasthan Through P P on 2 January, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Appeal No. 1963 / 2017
Yogesh Kumar S/o Shri Bhaguram B/c Jat, Aged About 30 Years,
R/o Charanwasi, Police Station Sadar, Jhunjhunu, Distt. Jhunjhunu
(raj.) (at Present Accused Petitioner Confined in Distt. Jail
Jhunjhunu)
----Appellant
Versus
State of Rajasthan Through P.P.
----Respondent
_____________________________________________________ For Appellant(s) : Mr. Karamveer For Respondent(s) : Mr. NS Dhakad PP _____________________________________________________ HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Judgment 02/01/2018 Yogesh Kumar son of Bhaguram aged 30 years has preferred the present appeal to assail the impugned judgment dated 22.9.2017 rendered by the court of Sessions Judge, Jhunjhunu, whereby the appellant was convicted for offences under Sections 307 and 353 IPC and Section 3/25 of Arms Act. The trial Judge having convicted the appellant for the above said offences, vide a separate order of even date, sentenced the appellant has under:-
U/s. 307 IPC- to undergo four years RI and to pay a fine of Rs.5,000/-, in default thereof to undergo additional six months RI.
U/s. 353 IPC- to undergo three months RI.
U/s. 3/25 of Arms Act- to undergo two years RI and to pay a fine of Rs.
1,000/-, in default thereof to undergo additional one month RI.
(2 of 6) [CRLA-1963/2017] Aggrieved against his conviction and sentence, the appellant has filed the present appeal. Along with the appeal, an application for suspension of sentence [S.B. Cr. Misc. Application for Suspension of Sentence No.1274/2017] was filed. A co-
ordinate Bench on 10.11.2017 had directed the learned Public Prosecutor to obtain report regarding antecedents of the accused appellant. The said report was not filed by the learned Public Prosecutor on 27.11.2017 and hence, on 20.12.2017, application for suspension of sentence was decided by passing the following order:-
"In pursuance of the order dated 10.11.2017 passed by the co- ordinate Bench and order dated 18.12.2017 passed by this Court, the learned Public Prosecutor has placed on record the report regarding antecedents of the appellant.
As per the said report, the applicant is involved in nine cases.
In view of antecedents of the applicant, the application for suspension of sentence is rejected.
Since the trial court has imposed sentence of four years upon the applicant, the Registry is directed to list the appeal for hearing on 2.1.2018, high up in the list."
Since the maximum sentence awarded upon the appellant was four years, and as per counsel, the appellant had undergone one year two months and six days, therefore, the appeal itself is taken on board.
The case of the prosecution can be summed up from the testimony of Mahaveer Singh (P.W.1). This witness in the court deposed that on 28.8.2016, he was posted as Constable at district Jail, Jhunjhunu. The said date was fixed for meeting the convicts/under trials lodged in the jail. Duty of Mahaveer Singh (3 of 6) [CRLA-1963/2017] was from 10:00 AM to 6:00 PM. At about 4:00 PM, he had gone with the slips outside the jail. He announced the result on slips whereby request to meet the under trials/convicts was not accepted. One slip which contained request of Yogesh Kumar and Rajveer to meet detenue Sanjay was announced, as accepted as Superintendent of Jail had granted the meeting. Alongwith slip, ID of Rajveer was annexed, but Yogesh Kumar was not having any ID. Mahaveer Singh (P.W.1) refused permission to Yogesh Kumar to meet detenue. Yogesh Kumar felt annoyed and after sometime, came in front of the gate of jail and called Mahaveer Singh. He fired a shot at him which had gone towards flag. He fired another shot which went towards main gate of the jail. It is stated that thereafter, Constable from the jail had fired in air but accused Yogesh Kumar and Rajveer on motorcycle went towards Mandawa towards Haryana. It will be apposite here to reproduce exact portion from the testimony of Mahaveer Singh (P.W.1), as under:-
";ksxs'k dqekj iq= Hkkxwjke nwljk jktohj iq= jkeflag nksuks dh iphZ ,d gh cUnh lat; fuoklh Hkwjk[ksMh ls feyus dh FkhA ftles jktohj iq= jkeflag dh vkbZ-Mh- iphZ ds lkFk layXu FkhA ;ksxs'k iq= Hkkxwjke ds ikl dksbZ vkbZ-Mh- ugh FkhA rc esus ;ksxs'k iq= Hkkxwjke dks eqykdkr djus ls euk dj fn;k o jktohj dks vuqefr ns nhA esus ;ksxs'k ls dgk fd rsjs ikl igpku dk nLrkost ugh gS blfy, rsjs dks lat; ls ugh feykmaxkA rc ;ksxs'k ukjkt gksdj ckgj vk x;k ,oa jktohj Hkh mlds lkFk es gh Fkk oks Hkh fQj lat; ls ugh feykA fQj ;ksx'k okil tsy ds xsV ij vk;k o esjs dks vkokt nhA mlus dgk fd eS egkohjflag rsjs dks ns[k ywaxkA ckn es mlus esjs mij vkokt yxkdj fiLVy ls Qk;j fd;kA tks >.Mk jksg.k okyh txg dh vksj pyk x;kA fQj ;ksx'k us esjs dks tku ls ekjus ds fy, Hkkxrs gq;s nwljk Qk;j fd;k tks lnj QkVd dh rjQ pyk x;kA (Emphasis Supplied)"
In the cross-examination, Mahaveer Singh (P.W.1) admitted that shot fired by the accused had not hit any gate, wall or the ground. Mahaveer Singh (P.W.1) further admitted that he had not informed investigating officer regarding firing of shot. The (4 of 6) [CRLA-1963/2017] following portion from the cross-examination of Mahaveer Singh (P.W.1) is reproduced below:-
";g lgh gS Qk;fjax ls fdlh Hkh xsV] nhokj o tehu ij dksbZ fu'kku ugh vk;k] lkbZM es Qk;j gqvk FkkA tsy es >.Mk jksgu dh txg ls 50&60 QqV dh nwjh ls Qk;j fd;k x;k FkkA esjh tsy ds vUnj M;wVh ugh FkhA eqykdkr dh txg M;wVh FkhA ;g lgh gS fd esus uD'kk&ekSdk cukrs le; vkbZ vks- dks- ;g crk;k Fkk fd eS Qk;fjax ds oDr uD'kk ekSdk izn'kZ&3 esa lh LFkku ij nf'kZr xqeVh ds vUnj FkkA izn'kZ ih&3 esa >.Mkjksgu ds LFkku ij fuekZ.k dk;Z ugh fn[kk;k gqvk gSA ;g lgh gS fd esus vuqla/kku vf/kdkjh dks tsy ds eq[; ifjlj o ckgjh ifjlj ls Qk;j djuk ugh crk;k cfYd tsy ifjlj ds ckgj ls ^b* LFkku ls Qk;j djuk crk;k gSA ^b* LFkku ij tks M.Mk gS mldh mpkbZ ml le; djhc rhu QqV Fkh vksj dgh ij ikap QqV FkhA xsV ds mij mapkbZ rhu QqV gh FkhA tgka ls Qk;j fd;k Fkk ml txg ls tsy dk njoktk ml txg ij mRrj ns[krk gSA"
The learned Public Prosecutor has very fairly admitted that in the present case, Mahaveer Singh had suffered no injury and there is no medical evidence on record.
Raghuveer Singh (P.W.2) in the court has stated that when the shot was fired, he was standing at a distance of 60 feet. He has further admitted that at that time 30-40 persons were present in jail, who had come to meet convicts/under trials. This witness has also stated that empty cartridges were recovered on the next day even though police had arrived at the scene after 10- 15 minutes of the occurrence.
I have heard the learned counsel for the parties. Admittedly, the two shots fired by the appellant have not hit anybody. No injury has been suffered by Mahaveer Singh (5 of 6) [CRLA-1963/2017] (P.W.1). Even the story regarding firing of shots fall on the ground as no visible marks of firing of shots were seen at the gate, wall or on the ground. Therefore, the contention raised by the counsel for the appellant that due to verbal altercation and protest raised by the persons who had assembled there, shots were fired in air by the jail staff and to justify the same, a false story has been concocted that accused had fired shots, cannot be brushed aside. There is no mark of firing of shots by the accused appellant and there is no medical evidence and none has suffered any injury. Thus, the conviction of the appellant for the offence under Section 307 IPC cannot be sustained and hence, the conviction of the appellant for offence under Section 307 IPC is set aside along with the sentence awarded by the trial court qua this offence.
So far offence under Section 353 IPC is concerned, it is stated that the appellant had not used any force and there is also no evidence of assault on the police official. Hence, qua the offence under Section 353 IPC, the appellant is also acquitted and the sentence awarded on this count is also set aside.
Now we come to the second part of the prosecution case.
Admittedly, from the possession of the appellant, a country made pistol has been recovered. That recovery is witnessed by the police officials.
Counsel for the appellant has read the cross- examination. Nothing has surfaced whereby the testimony of police officials can be impeached. The only argument raised by the learned counsel for the appellant that since independent witness (6 of 6) [CRLA-1963/2017] has not been examined, therefore, police officials be disbelieved, cannot be accepted. It is well settled legal position that if the testimony of police officials inspire confidence, same can be relied upon.
Hence, the conviction of the appellant for offence under Section 3/25 of Arms Act is upheld.
The learned counsel for the parties have very fairly admitted that minimum sentence of one years has been prescribed under Section 3/25 of Arms Act, in case one is found in possession of the country made pistol.
Considering that the occurrence had taken place in the year 2016, this Court is of the view that sentence of two years awarded upon the appellant for offence under Section 3/25 of Arms Act is liable to be reduced. Hence, sentence of two years awarded upon the appellant for offence under Section 3/25 of Arms Act is reduced to one year and six months RI. However, sentence of fine and default clause is maintained.
Consequently, the present appeal is partly accepted. The conviction of the appellant for offences under Sections 307 and 353 IPC is set aside. However, conviction of the appellant for offence under Section 3/25 of Arms Act is upheld and sentence awarded upon the appellant on the said count is reduced to one year and six months RI.
(KANWALJIT SINGH AHLUWALIA)J. Mak/-