VIPUL KUMAR @ VIPULESH Vs. STATE OF CHATTISGARH
Section 506 - Punishment for criminal intimidation
Section 324 - Voluntarily causing hurt by dangerous weapons or means
Section 294 - Obscene acts and songs
Section 326 - Voluntarily causing grievous hurt by dangerous weapons or means
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 707 of 2015, Judgment Date: Apr 28, 2015
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 707 OF 2015
(Arising out of S.L.P. (Crl.) No. 8106 of 2014)
Vipul Kumar @ Vipulesh … Appellant
Versus
State of Chhattisgarh …Respondent
J U D G M E N T
Prafulla C. Pant, J.
This appeal is directed against judgment and order dated October 3, 2013,
passed by the High Court of Chhattisgarh in Criminal Appeal No. 1322 of
2003 whereby said Court has affirmed the conviction and sentence recorded
by Additional Sessions Judge, Khairagarh, District Rajnandgaon, in Session
Case No. 58 of 2003, against accused/ appellant Vipul Kumar @ Vipulesh
under Sections 294, 324, 326 and 506 Part II of Indian Penal Code (IPC).
It is pertinent to mention here that we have issued notice in this appeal
only on the quantum of sentence at the time of entertaining the Special
Leave Petition.
We have heard learned counsel for the parties and perused the papers on
record.
Prosecution story, in brief, is that on 19.1.2003 at about 10.30 p.m., an
unknown person entered in the house of PW-4 Kamal Singhaniya and PW-3
Subodh Singhaniya. Both of them, with the help of PW-12 Om Prakash
Agrawal, caught the trespasser, suspecting that he had entered the house to
commit theft, and took him to police station, Gandai. PW-3 Subodh
Singhaniya lodged First Information Report against the person apprehended.
But the present appellant Vipul Kumar @ Vipulesh Constable at the police
station, instigated the person apprehended by PW-3 Subodh Singhaniya and
others, and asked him to lodge report against them. When PW-3 Subodh
Singhaniya protested and questioned the appellant as to why he was
protecting a wrong person, he (appellant) started hurling abuses, and used
fowl and vulgar language against Subodh Singhaniya and others. The
appellant did not stop there and he took up rifle, and fired shots due to
which PW-4 Kamal Singhaniya and one Rajesh Motwani (PW-9) sustained
injuries. As such, First Information Report (Ex. P/20) in connection with
this case was lodged at the Police Station, Gandai. Injured PW-9 Rajesh
Motwani and PW-4 Kamal Singhaniya were taken to hospital for medical
treatment. PW-2 Dr. G.S. Thakur recorded in his report (Ex. P/16) the
injuries found on the person of above named injured, and prepared injury
report (Ex. P/17). Thereafter, the injured were referred from primary
health centre, Gandai to Sector-9 Hospital, Bhilai where also injuries on
left thigh, testis, scrotum and penis of PW-4 Kamal Singhaniya, and in
respect of Rajesh Motwani gunshot injuries suffered on his right thigh,
were recorded. The injuries on the person of Kamal Singhaniya were found
to be grievous in nature, while injuries sustained by Rajesh Motwani were
simple in nature. Three bullets were taken out from the body of above
injured persons. From the possession of the appellant Rifle (SLR) and 47
cartridges with two empty magazines were seized. Recovered bullets and
above mentioned armoury were examined by PW-8 Girija Shankar Shrivastava,
who conducted armour examination and gave his report (Ex. P/25). Sealed
Rifle, cartridge cases, recovered from the appellant, and bullets found and
blood-stained clothes of the injured were sent for examination to Central
Forensic Science Laboratory, Chandigarh. After completion of
investigation, charge sheet was filed against accused Vipul Kumar @
Vipulesh.
After the case was committed to the Court of Sessions, the Additional
Sessions Judge, Khairagarh, framed charge in respect of offences punishable
under Sections 294, 506 Part II and 307 IPC, to which the accused pleaded
not guilty and claimed to be tried.
On this, prosecution examined PW-1 G.P. Sharma, PW-2 Dr. G.S. Thakur, PW-3,
Subodh Kumar Singhaniya, PW-4 Kamal Singhaniya, PW-5 Dr. M.G. Tiwari, PW-6
Narayan Prasad Sharma, PW-7 Roop Lal Patel (Patwari), PW-8 Girija Shankar
Shrivastava, PW-9 Rajesh Motwani, PW-10 Amit Agrawal, PW-11 Dr. Jogesh
Chandra Maruhal, PW-12 Om Prakash Agrawal and PW-13 S.I. T.R. Sahu.
The oral and documentary evidence was put to the accused, in reply to which
he took the defence that on 19.1.2003, he was on duty to guard the police
station between 9.00 p.m. to 11.00 p.m., and the Station In-charge had
instructed him not to allow more than two persons to enter the police
station. The accused further took the plea that since more than two
persons attempted to enter the police station and started quarreling with
him, he had to open fire in air. He further submitted that the police
station is in Naxalite area. In defence, DW-1 Uttamchandra Rao was
examined. The trial court, after hearing the parties, found that the
prosecution has successfully proved the charge of offences punishable under
Sections 294, 506 Part II, 324 and 326 IPC. After hearing the parties on
sentence, the trial court sentenced the appellant to rigorous imprisonment
for a period of three months under Section 294 IPC, rigorous imprisonment
for a period of one year under Section 506 Part II, rigorous imprisonment
for a period of three years under Section 324 IPC, and rigorous
imprisonment for a period of seven years under Section 326 IPC.
Aggrieved by said judgment and order dated 15.12.2003, passed by the
Additional Sessions Judge, Khairagarh in Sessions Case No. 58 of 2003,
convict Vipul Kumar @ Vipulesh filed Criminal Appeal No. 1322 of 2003
before the High Court. The High Court, after hearing the parties,
concurred with the view taken by the trial court that the charge in respect
of offences punishable under Sections 294, 506 Part II, 324 and 326 IPC
stood proved on the record and declined to interfere with the sentence
awarded against him, as such, the criminal appeal was dismissed. Hence,
this appeal through special leave.
Only point argued before us, in this appeal, is that the courts below have
erred in law in not considering the fact that the appellant was posted at
the police station in Naxalite area and the act committed by him was due to
sudden fight and provocation. It is further pointed out that the appellant
had already spent more than one year in jail. It is pleaded before us that
the sentence awarded by the trial court and affirmed by the High Court, is
too harsh in the facts and circumstances of the case.
It is undisputed fact that the appellant was constable on duty posted at
the police station. It is also not disputed that the incident has occurred
in the night in a Naxalite area. It is also evident from the record that
it is a case of sudden quarrel and heated exchange of words between the
injured and the appellant, who was armed with rifle. Considering all the
facts and circumstances of the case in totality, though we find no error
committed by the courts below in convicting the accused in respect of
charge of offences punishable under Sections 294, 506 Part II, 324 and 326
IPC, but, in our opinion, in the present case, reducing the period of
sentence to already undergone (which is more than one year) would meet the
ends of justice.
Accordingly, we partly allow this appeal. The conviction recorded against
the appellant is not interfered with. However, the sentence awarded by the
trial court is reduced to the period already undergone in respect of
offences found to have been proved against him. He shall be set at
liberty, if not required in connection with any other crime.
……………….....…………J.
[Dipak Misra]
.……………….……………J.
New Delhi; [Prafulla C. Pant]
April 28, 2015.