Court No. 54 CRIMINAL APPEAL No. 6833 of 2006
For Appellant : Sri Govind Saran Hajela
For Respondent/State : AGA Sri Amit Sinha
Hon'ble Pritinker Diwaker, J. Hon'ble Raj Beer Singh, J.
Per : Pritinker Diwaker, J.
(26.02.2019)
1. These two appeals have been filed by appellant Ramjee Kureel, one through his Advocate and the other through Jail authorities, assailing the judgment and order dated 14.09.2006 passed by the Additional Sessions Judge, Court No.5, Fatehpur in Sessions Trial No. 281 of 1999 (State vs. Ramjee Kureel). By the impugned judgment, accused appellant has been convicted under Section 302 of IPC and sentenced to undergo imprisonment for life and a fine of Rs. 10,000/-, in default thereof, to further undergo six months simple imprisonment. Since both the appeals arise out of common judgment and order, they are being disposed of by this common judgment and order.
2. At the relevant time i.e. on 07.08.1999, the appellant Ramjee Kureel was working as Police Constable at P.S. Jafarganj, District Fatehpur where Siya Ram (deceased) was also working as Head Constable. The appellant was to perform guard duty in the morning but he failed to do so and at his place, the deceased performed his duty as guard. When appellant came to police station in the afternoon, he was asked by deceased Siya Ram as to why he did not attend his duty. Thereafter, the appellant Ramjee Kureel and Sub Inspector Mohd. Muslim went to Sultangarh police station for serving a notice to some accused and when they returned to police station in the evening, accused-appellant caused one firearm injury with his rifle to deceased Siya Ram by saying that Siya Ram was harassing him unnecessarily. After sustaining gunshot injury on his chest, deceased died instantaneously. F.I.R, Ex. Ka.2, was recorded on 07.08.1999 at 7:50 p.m.
i.e. within 15 minutes from the occurrence by PW-1 Sub Inspector Mohd.
Muslim against the appellant under Sections 302 and 504 of IPC.
3. Inquest on the dead body was conducted vide Ex. Ka.6 on 07.08.1999 and body was sent for postmortem, which was conducted on 08.08.1999 vide Ex. Ka.5 by PW-3 Dr. A.P. Tripathi.
4. As per Autopsy Surgeon, following gunshot injuries have been found on the body of the deceased:
(i) fire arm wound of entry 1cm x 1cm on the Rt. shoulder 6cm below the outer end of Rt. collarbone anterior side.
(ii) fire arm wound of exit 3cm x 2cm on the outer side of left shoulder 4 cm below the top of shoulder.
The cause of death of the deceased was due to shock and haemorrhage as a result of antemortem injury.
5. While framing charge, the trial judge has framed charge against the appellant under Sections 302 and 504 of IPC.
6. So as to hold accused appellant guilty, prosecution has examined six witnesses. Statement of accused appellant was also recorded under Section 313 Cr.P.C. in which, he pleaded his innocence and false implication.
7. By the impugned judgment, the trial Judge has convicted the accused appellant under Section 302 of IPC. and sentenced him as mentioned in paragraph no. 1 of this judgement. Hence this appeal.
8. Learned counsel for the appellant submits:
(i) that PW-1 Mohd. Muslim and PW-2 Abdul Kalam are not reliable and trustworthy. It has been argued that from the evidence, it appears that PW-1 and PW-2 are close to the deceased, and that is why they have deposed against the appellant.
(ii) that even assuming that appellant had caused rifle injury to deceased, the same appears to be a sudden provocation in a heat of passion and, therefore, the case of the appellant would fall under Exception 4 to Section 300 of IPC and, accordingly, he is liable to be convicted under Section 304 Part-I of IPC.
(iii) that appellant is in jail since more than 18 years and, therefore, after converting his conviction into Section 304 Part-I of IPC, his sentence may be reduced to the period already undergone by him.
(iv) that appellant, who was working as a Constable, had an excellent service record, and if out of anger or being provoked, committed any offence, 18 years of incarceration is good enough for him.
(v) that some sympathetical approach is required to be taken in the case in hand.
9. On the other hand, supporting the impugned judgment, it has been argued by State counsel that eye-witnesses to the incident PW-1 Mohd. Muslim and PW-2 Abdul Kalam are fully reliable and have categorically deposed as to the manner in which the incident occurred. State counsel further submits that under no stretch of imagination, the case of the appellant would fall for any lesser offence. He submits that no sympathy is required to be shown to the appellant when he has taken the valuable life of a Head Constable just for nothing.
10. We have heard counsel for the parties and perused the record.
11. PW-1 Mohd. Muslim, at the relevant time, was working as Sub Inspector at P.S. Jafarganj, states that on 07.08.1999, appellant Ramjee Kureel was to perform guard duty in the morning hours but he failed to do so and came to police station around 12:30 in the afternoon. At about 7:30 p.m., when he and appellant returned to police station after performing another duty, deceased Siya Ram was sitting at a platform, near the police station along with PW-2 Abdul Kalam. The appellant took out his service rifle and caused gunshot injury to the deceased by saying that deceased was harassing him. After sustaining gunshot injury on his chest, the deceased fell down and succumbed to his injuries. In his cross-examination, this witness remained firm and nothing could be elicited from him.
12. PW-2 Abdul Kalam, who was working as constable in the same police station, has also supported the statement of PW-1 Mohd. Muslim by saying that it is the appellant, who caused gunshot injury to the deceased. In his cross-examination, this witness also remained firm and has not stated any such fact, which may of any help to the accused.
13. PW-3 Dr. A.P. Tripathi conducted postmortem on the body of the deceased.
14. PW-4 B.D. Gupta, conducted inquest.
15. PW-5 Vidya Sagar Tripathi, is the Investigating Officer of the case, has duly supported the prosecution case.
16. PW-6 Suresh Chandra, assisted during investigation.
17. Close scrutiny of the evidence makes it clear that on 07.08.1999, it is the accused-appellant, who caused firearm injury with his rifle on the chest of the deceased resulting his instantaneous death. Incident has been witnessed by PW-1 Mohd. Muslim and PW-2 Abdul Kalam and both have duly supported the prosecution case. Postmortem report also supports the prosecution case. Though, FSL report is not conclusive in nature but in a case based on two eye witnesses and considering the quality of evidence, we are of the view that even in absence of positive FSL report, conviction of the appellant cannot be faulted with.
18. We find no force in the argument of the defence that the appellant is liable to be convicted for any lesser offence. The case of the appellant does not fall under any exception to Section 300 of IPC and, therefore, he cannot be convicted under Section 304 Part-I of IPC.
19. Taking cumulative effect of the evidence, we are of the view that the trial court was justified in convicting the appellant under Section 302 of IPC.
20. The appeals have no substance and the same are accordingly
dismissed. As the appellant is already in jail, no further order is required.
Order Date :- 26.02.2019 SK/A. Tripathi
(Raj Beer Singh, J.) (Pritinker Diwaker, J.)