VIPUL KUMAR @ VIPULESH Vs STATE OF CHATTISGARH
Bench: DIPAK MISRA,PRAFULLA C. PANT
Case number: Crl.A. No.-000707-000707 / 2015
Diary number: 26609 / 2014
Advocates: ABHA R. SHARMA Vs
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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
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@ 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
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(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
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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
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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
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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
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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
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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.