Pradeep Shende vs State of C.G.

Pritinker Diwaker, J.—The present appeal arises out of judgment & order dated 29.01.2010 passed by Additional Sessions Judge, Khairagarh, District Rajnandgaon in S.T. No. 5/2007 convicting the accused/appellant for the offence punishable u/s 307 of the Indian Penal Code and 27 of the Arms Act and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 4,000 in default of payment of fine to further undergo rigorous imprisonment for six months and to undergo rigorous imprisonment for 3 years and pay fine of Rs. 1,000, in default of payment of fine to further undergo rigorous imprisonment for two months respectively. Prosecution case in brief is that one Rikhi Ram acquitted accused and present appellant Pradeep Shende had taken some amount from Dharmendra (PW-21) for purchasing vehicle and when Dharmendra demanded his money back, accused/appellant showed his annoyance by saying that he gave nothing in writing and therefore he would pay the amount as per his desire. It is alleged that some dispute cropped up between them and thereafter accused/appellant entered the house of acquitted accused Rikhi Ram, came out carrying some weapon and started abusing Krishna Kumar (PW-23) and Dharmendra (PW-21). Thereafter they fired a gun shot on Krishna Kumar and Dharmendra as a result of which Krishna Kumar (PW-23) sustained injury on his chest and Dharmendra on his abdomen. They were shifted to Government Hospital Rajnandgaon, by Manohar Sahu (PW-22), information was given to the police and dehati nalisi (Ex.P-31) was recorded. Injured Dharmendra was shifted to Khairagarh hospital and looking to the condition of both the victims they were shifted to Hospital at Sector-9, Bhilai. Dying declaration of Krishna Kumar and Dharmendra (the same would be treated as statements) were recorded vide Ex. P-30 and 32. Unnumbered FIR was registered vide Ex.P-33 at Police Station Basantpur and then numbered FIR (Ex.P-34) was registered at P.S. Khairagarh on 15.12.06 u/s 307 /34 IPC. Krishna Kumar was medically examined at Government Hospital Rajnandgaon vide Ex.P-14 by Dr. Sadani (PW-10) whereas Dharmendra (PW-21) vide Ex.P-23 at Government Hospital Khairagarh by Dr. P.S. Parihar (PW-15) and looking to their condition they were advised for x-ray at Sector 9 hospital Bhilai vide Ex.P-24-25 & Ex.P-26-27 by Dr. Rajeev Pal. After investigation, charge sheet was filed on 16.3.07 against the accused/appellant, acquitted accused Rikhi Ram, Saroj Bai and Rahul Giri u/s 307 /34 IPC and accordingly learned trial Judge has framed charge u/s 307 IPC and 25 and 27 of the Arms Act against accused/appellant whereas against acquitted accused Saroj Bai and Rahul Giri have been charged u/s 307 /34 IPC.

In support of its case, prosecution has examined 29 witnesses. Statement of the accused persons were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case.

After hearing the parties, the Court below has acquitted accused Saroj Bai, Rikhi Ram and Rahul Giri of all the offences but has convicted and sentenced the present accused/appellant as mentioned in paragraph No. 1 of his judgment. Hence this appeal.

Contention of Shri Tiwari, counsel for the appellant is that even if the entire case of prosecution is taken as it is, the incident occurred on account of sudden dispute as a result of which the injured might have suffered some injuries but those injuries have not been caused by the accused/appellant. He submits that on the same set of evidence other accused persons have been acquitted and therefore conviction of the accused/appellant is not in accordance with law. According to Shri Tiwari, at best the appellant would be liable to be convicted u/s 308 IPC and for which he has already remained in jail for more than 5 years and therefore his sentence be reduced for the period already undergone by him. Lastly, it has been argued that even if the conviction of the accused/appellant is maintained u/s 307 IPC, his sentence can be reduced for the period already undergone by him.

On the other hand, supporting the impugned judgment it has been argued by Shri Goverdhan, State counsel that the conviction of the accused/appellant is strictly in accordance with law and there is no infirmity in the same. He submits that present is not a case of sudden fight and according to injured Krishna Kumar (PW-23), after full preparation accused/appellant caused injury to him and Dharmendra (PW-21). He further submits that Dharmendra (PW-21) had suffered injuries on his vital part i.e. abdomen and after operating his kidney and gall bladder were removed and the same is clear from medical report and bed head ticket is Ex.P-6. He further submits that Krishna Kumar (PW-23) had suffered bullet injury on his chest and that shows that the accused/appellant had all the intention to kill them. He submits that the weapon of offence-pistol was also seized from the accused/appellant vide Ex. P-21.

Heard counsel for the parties and perused the material available on record. Narad (PW-1), Kanhaiya (PW-2) and Sunil Singh (PW-3) have not stated anything against the accused/appellant and have been declared hostile. Jageshwar (PW-4) and Uttam Kumar (PW-5) are seizure witnesses of Ex.P-4 by which blood stained shirt of injured Dharmendra (PW-21) was seized. Prakash Dubey (PW-6) is the seizure witness of Ex.P-5 by which broken motor cycle was seized. Dr. Tarun Nayak (PW-7) had medically examined injured Dharmendra (PW-21) and admitted him in Sector 9 hospital and operated him. He has stated that he found the bullet injury on the right side of his chest as well as internal injuries on his abdomen for which he was operated in emergency. He has further stated that he found injury on the liver, gall bladder and kidney as a result of which one of his kidneys as also the gall bladder were removed. He also found injury on the large intestine of the injured and part of which was removed. He has further stated that injured remained in hospital till 25.12.2006 and his report is Ex.P-6. This witness had also examined injured Krishna Kumar (PW-23) and his report is Ex.P-7. According to him, he found bullet injury on the chest of Krishna Kumar, which was operated and removed. Vikalp Yadu (PW-8) Patwari has prepared the panchnama (Ex.P10) and spot map (Ex.P-11) has duly supported the case of prosecution. Girija Shankar Shrivasatava ((PW-9) armourer (Police constable), had examined the pistol used in commission of the offence and gave report Ex.P-12 has duly supported the prosecution case. Dr. R. Sadani (PW-10) at the relevant time was working as doctor in the district hospital, Rajnandgaon and after admitting injured Krishna Kumar in the hospital, forwarded the information Ex.P-13 to the police. He had also medically examined Krishna Kumar vide Ex.P-14. Jawahar Gehne (PW-11) witness of memorandum of acquitted accused Rikhi Ram (Ex.P-16) and Saroj Dai (Ex.P-17) has been declared hostile. Roop Ram (PW-12) and Jaishankar Mishra (PW-13) are seizure witnesses of motorcycle Ex. P-19 and witness to memorandum of Rikhi Ram (PW-16) and arrest memo (Ex.P-19 and 20), one pistol (Ex.P-21) have been declared hostile. Jagnu Verma (PW-14) has not stated anything against the accused/appellant and has been declared hostile. Dr. P.S. Parihar (PW-15) at the relevant time posted at Community Heath Centre, Khairagarh had examined Dharmendra (PW-21) and gave his report Ex.P-23. He referred the injured to higher medical Centre. Dr. Rajeev Paul (PW-16) Is the radiologist who had taken x-ray of injured Krishna Kumar (PW-23) vide Ex.P-24 and gave his report Ex.P-25. He had also taken the x-ray of Dharmendra (PW-21) and gave his report Ex.P-26. Sunil Kumar (PW-17) has been declared hostile. Jitendra Kumar (PW-18) seizure witness of motor cycle (Ex.P-5) has not stated anything against the appellant and has been declared hostile. Bharat (PW-19) has not stated anything against the appellant and has been declared hostile. Anil Kumar (PW-20) S.I. had done part of the investigation. Dharmendra (PW-21) has stated that on the date of incident i.e. 14.12.06, when he had gone to the house of accused Rikhiram along with Krishna Kumar (PW-23) and demanded money from Rikhiram and Pradeep Shende which they had taken for purchasing the motor bike, some dispute cropped up and after abusing him the appellant fired a gun shot on him as well as Krishna Kumar. He has further stated that thereafter the other accused persons also made an attempt to cause injury to him. He has described as to in what manner after the incident he was shifted to hospital. In cross-examination he remained very firm and nothing could be elicited from him. Nohar @ Manohar (PW-22) has stated that on the date of incident, he was informed by injured Krishna Kumar that the accused/appellant and acquitted accused Rikhi Ram caused bullet injuries to him and Dharmendra and they were shifted to hospital. Krishna Kumar (PW-23) the injured has stated that on the date of incident, he had gone to the house of Rikhi Ram along with his friend Dharmendra as Rikhi Ram had purchased motorcycle on finance and they had gone there to recover the money and some dispute arose between the accused/appellant and Dharmendra over the same. He intervened in the matter but thereafter the accused/appellant started abusing him and took out his pistol kept in his overcoat and caused injuries to Dharmendra as also to him. In cross-examination, he remained very firm and nothing could be elicited from him Pramod Kispotta (PW-24) Sub Inspector has done part of the investigation. Santosh Kumar Pathak (PW-25) Asstt. Sub inspector helped in the investigation. Pratipal Singh (PW-26) has done the investigation. Harishchand Tandekar (PW-27) is the investigating Officer. V.N. Chandravanshi (PW-28) Naib Tahsildar recorded the dying declaration of Krishna Kumar wherein according to him, it is the accused/appellant and acquitted accused persons who assaulted him but only accused/appellant caused gun shot injury. M.R. Dhurve (PW-29) Naib Tahsiidar recorded the dying declaration (Ex.P-30) of injured Dharmendra, has also stated that in the dying declaration, Dharmendra informed him as to the manner in which he was assaulted by the accused/appellant.

From the minute examination of the material available on record including the evidence of the witnesses, it is apparent that on the date of incident, i.e. 14.12.06, accused/appellant caused gun shot injury to Dharmendra (PW-21) as a result of which he sustained bullet injury on the right side of his chest as also internal injuries on his abdomen for which he was operated in emergency. The doctor (PW-7) who had examined the injured has stated that he found injury on the liver, gall bladder and kidney on account of which one of his kidney and gall bladder were removed. He also found injury on the large intestine of the injured and part of the same was also removed by him whereas while examining injured Krishna Kumar (PW-23) he found bullet injury on his chest for which he was operated. Evidence also shows that the appellant had all the intention to cause death of the victims.

Accordingly, the findings recorded by the Court below convicting the accused/appellant u/s 307 IPC and 27 of the Arms Act are just and proper and no interference with the same is called for. Thus, the appeal being without substance is liable to be dismissed and the same is hereby dismissed. Judgment impugned is left undisturbed. Appellant is reported to be in jail and therefore no order regarding his surrender or arrest for undergoing the sentence is required.