Manjeet vs State of U.P.

Hon''ble Vinod Prasad, J.—Challenge in this appeal by the sole appellant Manjeet is to his conviction u/s 307 IPC and imposed sentence of 10 years R.I. with Rs. 10,000/- fine and in case of default in payment of fine to undergo further one year simple imprisonment recorded by Additional Sessions Judge/F.T.C. court no.21, Bulandshahar vide impugned judgement and order dated 11.2.09 recorded in S.T. No. 695 of 2001, State Vs. Manjeet, relating to Police Station Aurangabad, district Bulandshahar.

Shorn of eschewable detailes, prosecution allegations against the appellant as are revealed from written FIR, Ext. Ka-1, lodged by the informant Rajendra Singh, (P.W. 1), were that inraged by rejection of an his offer to do buffalo cart racing, that the appellant shot at Devendra (P.W. 3) S/o informant from his DBBL gun on 5.10.2000 at 1 A.M. in night at the crossing of his village Gangahari, P.S. Aurangabad, District Bulandshahr causing gun shot injuries on his chest and neck. Informant Rajendra Singh (P.W. 1) F/o injured dictated incident FIR, Ext. Ka-1, to Prakash Singh, who scribed it, and thereafter (P.W. 1) lodged it at P.S. Augangabad, same day at 2.10 A.M., measuring a distance of seven kilometre. S.I. Indra Pal Singh registered the F.I.R. as crime no.278 of 2000, u/s 307 IPC vide Ext. Ka-2 and prepared the G.D. entry Ext. Ka-3.

Investigation into the crime was commenced by S.I. Mohammad Kamar, who had interrogated the witnesses and prepared the site plan Ext Ka-7. After his transfer, further investigation was conducted by S.I. Mahendra Prasad Pandey (P.W.7) from 28.10.2000 onwards, who concluding it had chargesheeted the appellant vide Ext. Ka-8.

Injured was examined by Dr. S. Garg, E.M.O., District Hospital, Saharanpur at 3.15 a.m. same day, who was brought to him by Constable Virendra Singh of P.S. Aurangabad. Following injuries were detected by the doctor on the torso vide injured medical examination report Ext. Ka-5:-

AMI :- multiple gunshot wound of entry in area 38 cm. x 23 cm. on front right shoulder and upper part of right chest and middle part of left chest and front neck and front chin size measuring 0.4 cm x 0.4 cm, 2.0 cm x 1.5 cm surgical emphysema was present, no blackening tattooing present, blood was oozing from the injury. In the estimation of the doctor injury was grievous in nature and duration was fresh.

Charge-sheeting of the appellant resulted in his summoning and finding his case triable by Session''s Court, it was committed to the Session''s Court for trial, where it was registered as S.T. No. 695 of 2001, State Vs. Manjeet.

Additional Session''s Judge/F.T.C., court no.21, Bulandshahar charged the appellant for offence u/s 307 I.P.C., which charge was denied by the appellant u/s 227/228 Cr.P.C. and hence to establish it''s case prosecution, during the course of the trial, examined in all seven witnesses out of whom informant Rajendra Singh (P.W.1), Jai Pal Singh (P.W.2), injured victim Devendra (P.W.3) were the fact witnesses. Formal witnesses included S.I. Indra Pal Singh (P.W.4), doctor S. Garg (P.W.5), Bhuwan Ram (P.W.6) and second I.O. S.I. M.P. Pandey (P.W.7).

In his statement u/s 313 Cr.P.C., appellant pleaded false implication and denied incriminating circumstances put to him occurring in prosecution evidences.

Trial Judge vide impugned judgement of conviction and sentence came to the conclusion that the prosecution had established it''s case beyond any shadow of doubt and therefore convicted the appellant for the framed charge u/s 307 IPC and sentenced him to ten years R.I. with Rs. 10,000/- fine and in default thereof to undergo additional one year simple imprisonment. Consequently, appellant has challenged his conviction and sentence in the instant appeal.

In the preceding unfolded background facts, I have heard Sri Raghuraj Kishore, advocate in support of the appeal and learned AGA in opposition.

Sri Raghurja Kishore, learned counsel for the appellant did not challenge conviction of the appellant for the charge u/s 307 IPC as he fairly conceded that so far as conviction of the appellant is concerned, the same is infallible and cannot be castigated, as there was no reason for the injured to cook up a false story against him, as both of them were friends and prior to the shooting incident, there was no enmity in between them. He further stated that there was no reason for informant (P.W.1) to lodge a false FIR and depose mendacious version without any motive and previous enmity. He further submitted that the medical report and the depositions of doctor (P.W.5) indicate that the injury sustained by the injured was by gun fire and the same was grievous in nature on the vital part of the body and therefore, testimony of the doctor fully corroborates prosecution version. Learned counsel, therefore, did not harp much on the factual aspects and fairly conceded that conviction of the appellant u/s 307 I.P.C. is unassailable. Learned counsel however vehemently addressed the Court only on the question of sentence and submitted that the incident had occurred more than a decade ago and appellant had undergone more than three years of incarceration. Adding remissions he had served round about three and a quarter years of imprisonment. The sentence awarded to the appellant is not commensurate with his guilt and therefore, learned counsel submitted that the sentence of the appellant be reduced to the period of imprisonment already undergone with some fine clamped on him and in support of the said contention, he has raised many submissions and pointed out various mitigating circumstances, which are mentioned in succeeding paras.

Learned AGA conversely submitted that the sentence should not be reduced, as it is a case of causing of grievous injury by gun fire, which conviction stands unchallenged.

I have considered the entire facts and circumstances of the case, from penelogical point of view, as to whether sentence of the appellant should be reduced or not ?

In above respect, some of the mitigating circumstances, which were argued by learned counsel for the appellant and be taken note of are firstly, that the incident occurred in the dead hour of night at 1.00 p.m. at a very petty brawl of engaging in a buffalo cart race. On four or five buffalo carts informant and appellant had gone to enjoy the Ramleela along with other co-villagers. While returning from there, appellant wanted to have a buffalo cart race as his buffalo cart was moving ahead of rest of them. Appellant''s offer was refused and there was verbal dual and tiradic altercation between the appellant and the injured. Incident is said to have occurred because of the aforesaid reason. The wordily exchange had started a kilometre prior from the place of the incident and it seems that it continued till the crossing, place of the incident, as the depositions of the injured is that as soon as the appellant alighted from the buffalo bullock-cart, he accosted the victim (P.W. 3) to stand there and he will teach him a lesson. Thereafter, it is alleged, that the appellant brought the DBBL gun of his brother and fired a single shot. Thus the incident occurred without any pre-meditation and pre-plan.

Secondly that the incident occurred in the heat of passion, loosing self control and unable to bear hot exchange of verbal tiradic dual.

Thirdly that a single shot was fired by the appellant, causing injuries to the victim. There was no repetition of shot. In such a view, it is very difficult to conclude positively that appellant really intended to cause death of the injured. No doubt appellant had caused grievous injuries to the victim on the vital part of his body but that fact alone is not sufficient to infer requisite mens rea to impose such severe punishment on him. Punishment has to be commensurate looking to the mens rea, which the accused harbingered at the time of the commission of the crime.

Fourth mitigating factor is that the appellant had no criminal history. Victim and appellant both were friends and prosecution had not been able to point out any circumstance, which may aggravate the offence, which was committed after loosing self control.

Fifth circumstance is that the appellant has an ailing father and small children to foster. It was mentioned in the impugned judgment that he was the sole bread earner of his family.

Sixth modifying circumstance is that the present was his first crime without any criminal background and proclivity.

Next mitigating circumstance is that appellant during the course of trial had not misused the liberty of bail granted to him nor had endeavoured to tamper with the prosecution evidences and to be an impediment in the entire trial procedure.

Another ground is that appellant had not repeated the shots. At the time of the incident, he was 32 years of age and as of now, he must be 42 years. Incident had occurred a decade ago and during intervening period bickering must have subsided.

It was appellant''s first crime and he had not associated himself with any kind of offence subsequently also.

In above view, 10 years imprisonment imposed by the trial Judge, therefore, does not seems to be commensurate with appellant''s guilt. It seems that the appellant had a remorse for the incident, which occurred at the heat of the moment, without any premeditation and intention in the dead hour of the night.

Penology is a science. Sentencing requires analyzing facts and circumstances, which are peculiar to each case. Lesser sentence will give an impression of no justice being done to the victim or his family but, conversely also, a disproportionate severe sentence, not commensurate with the guilt of the accused, will also not act as a deterrent but will garner antagonistic feelings pervaded by feeling of vengeance. As exemplars reliance can be placed on the views by the Apex Court in the following decisions:- Habbalappa Dundappa Katti and Others Vs. State of Karnataka, , in paragraph 5, the Apex Court has observed as under:-

The occurrence took place as early as in 1986. The appellants were acquitted by the trial Court vide order dated 11th September, 1987 and after their conviction for offences under Sections 326/149, 147 and 148, IPC by the High Court on 9th June, 1992, they were directed to be released on bail vide our order dated 28th August, 1992. In our opinion keeping all these factors in view it would serve the ends of justice if the appellants are not now sent back to jail, as indeed nothing has been brought to our notice to show that after their release on bail they have acted in any manner prejudicial to law and order. We, therefore, reduce the substantive sentences of imprisonment of the appellants to the period already undergone by them for the various offences for which they have been convicted but we sentence each one of them to pay fine in addition to the sentence of imprisonment already undergone.

In Union of India and others Vs. Andnd Singh Bisht, , in paragraphs 7, 8 and 9, it has been held as follows:-

Mr. Amrish Kumar, the learned Counsel for the respondent has submitted that although within the scope and ambit of this appeal, the prayer for compensation does not arise but in order to give complete justice in the case, this Court can give direction for giving suitable compensation to the respondent in exercise of the power under Article 142 of the Constitution of India. We have taken into consideration the justification of such claim for compensation. But in the facts and circumstances of the case, it appears to us that the respondent had made an application for taking note of the mitigating circumstances in the matter of awarding suitable punishment against him by indicating the period of detention as under trial accused before Court Martial. He was convicted u/s 307 of the Indian Penal Code and was awarded the sentence of imprisonment for only one year persumably by taking into consideration, the mitigating circumstances. We may indicate here that for an offence u/s 307 of the Indian Penal Code, imprisonment up to a period of ten years can be given. Hence, we are not inclined to give any direction for monetary compensation for long detention as under trial accused.

Mr. Amrish has lastly submitted that the respondent had a brilliant service record as a member of the Border Security Force. He had participated in Indo-China War in 1962 and also in the Indo10 Pakistan War in 1971. Mr. Kumar has submitted that the respondent did not cause injury to the cadet Raj Kishore Singh intentionally, but as it has come out in the evidence that both the said Raj Kishore Singh and the respondent Anand Singh Bisht were intoxicated at the time of the incident and not being in his full senses, the respondent had fired one shot from his rifle injuring the leg of the said cadet Raj Kishore Singh with whom he was quarreling for a long time. We have looked into the records relating to the Court Martial proceedings in this case. It appears from the evidence given by the prosecution witnesses in the Court Martial that the respondent Anand Singh Bisht was otherwise quite friendly with Raj Kishore. They on the date of incident started quarreling. Shri Anand shouted to the cadet Raj Kishore Singh to move away from him and he had also given warning that otherwise Raj would be shot. It has also come out in evidence that Raj Kishore Singh did not move away and even when the rifle was raised with finger on the trigger Raj Kishore rather pressed the barrel and then he was shot at the leg. The officer-in-charge of the Camp where the incident had taken place, in his preliminary investigating report sent to the Commandant of the Unit indicated that the Cadet Raj Kishore Singh and the respondent were in best of terms and most likely he did not intend to shot at him but because of the altercation he had fired one shot at the sour of the moment when he must have lost his temper.

Considering the aforesaid mitigating facts and also considering the fact that Sri Anand had suffered long detention as under trial accused and has also suffered imprisonment at the Behrampur Central Jail in execution of the sentence for about six months, we feel that justice will be met if his sentence is reduced to the period already undergone. We order accordingly.

Another exemplar decision can be had from paragraph 9 of R. Seetharam and Others Vs. State of Karnataka, , wherein it has been noted by the Apex Court as a mitigating ground to reduce sentence: -

However, it has been pointed out to us that Appellant No. 3 has already expired, Appellants 2 and 4 have already served out their sentence. Reliance has been placed upon medical Certificate from St. Martha''s Hospital, Bangalore, which shows that Appellant No. 1 is suffering from Prolapsed Disc and has a degenerated and fragmented fibro-cartilagenous material which has resulted in 60% disability in both lower limbs. Appellant No. 1 is also a Diabetic and suffering from acute Bronchitis attacks. The Certificate show that he is unable to attend to his normal physiological activities. We have also seen that his wife has deserted him and he has two small children with an aged mother.

Further if the evidence of the doctor is looked into, it is clear that the shot was fired from quite a distance as the dispersal of the pellets is 38 cm x 28 cm. Injured was advised for X-ray but the prosecution has not brought forth the X-ray to know the exact nature of injury sustained by the deceased. It is categorical deposition of the doctor (P.W. 5) that he had not prepared any supplementary report in respect of the victim. He had further deposed that he had not extracted any pellets from the body of the injured. In such a view, looking to the entire facts and circumstances and also looking to the fact that the appellant had no criminal history nor he had got any criminal proclivity and the crime was committed in a heat of passion and loss of self control and the period of a decade gone by during intervening period, I consider it appropriate to reduce the sentence of imprisonment of the appellant from 10 years RI to 5 years RI but at the same time enhance the fine imposed upon him from Rs. 10,000/- to Rs. 40,000/- and award a compensation of Rs. 25,000/- to the victim P.W. 3.

In view of above, the appeal succeed and is allowed in part. While conviction of the appellant u/s 307 I.P.C. is hereby maintained, his sentence is altered from 10 years RI and Rs. 10,000/- fine to 5 years RI with Rs. 40,000/- fine with compensation of Rs. 25,000/- to the victim P.W. 3 Devendra Kumar out of it. In default of depositing the fine, appellant shall undergo further one year simple imprisonment. Appellant is stated to be in jail, he shall remain in jail to serve out remaining part of his sentence, which has been awarded to him by this judgment.

Let a copy of the judgment be transmitted to the trial Judge for its intimation.