Page 1

NON-REPORTABLE

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.

1. 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

Page 2

Page 2 of 8

@ Vipulesh under Sections 294, 324, 326 and 506 Part II of

Indian Penal Code (IPC).

2. 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.

3. We  have  heard  learned  counsel  for  the  parties  and

perused the papers on record.

4. 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

Page 3

Page 3 of 8

(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

Page 4

Page 4 of 8

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.

5. 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.

6. 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

Page 5

Page 5 of 8

Agrawal,  PW-11  Dr.  Jogesh  Chandra  Maruhal,  PW-12  Om

Prakash Agrawal and PW-13 S.I. T.R. Sahu.   

7. 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

Page 6

Page 6 of 8

IPC, and rigorous imprisonment for a period of  seven years

under Section 326 IPC.  

8. 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.

9. 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

Page 7

Page 7 of 8

by the High Court, is too harsh in the facts and circumstances

of the case.  

10. 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.

11. 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

Page 8

Page 8 of 8

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.