BULLET, BLAME, AND THE BENCH: SANDEEP'S STRUGGLE IN THE HIGH COURTS
Category: Criminal Law
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FACTS OF THE CASE
In this case, Kale Hasan is the PW1 cum Complainant, S/o Abdul Hameed , resident of Dosni village, had lodged a written report to Police Station Laksar District, Haridwar, alleging that on midnight of 30-10-1997, while his father and mother were sitting and talking in courtyard, four persons, all residents of Dosni village, came around at 9:45 pm and killed him through gun shots with the intention of teaching him a lesson for not giving jaggery. They all flee from the scene of crime. The injured Abdul Hammed was taken to Government Hospital, Laksar for treatment, where the doctor declared him dead.
On the basis of the written report, Chik report was prepared and case was registered against all four accused for the offence under section 302 IPC. Sub Inspector of Police inspected the scene of crime and prepared inquest report on the body of deceased and site plan. The Investigating Officer recorded the statements of witnesses and recovered all the accessories of crime such as country made pistol, batteries, lantern, blood stained cloth etc. The body of deceased along with inquest report sent to post mortem. The physician gave the autopsy report giving the opinion of cause of death was due to shock and haemorrhage as a result of fire arm injuries and wound of entry caused by bullet. After investigation, chargesheet was filed against all four accused for offence u/s 302 IPC. The Appellant along with two others was tried for causing murder of Abdul Hameed (deceased) on 30-10-1997 at 9:45 pm. They were charged of committing offence under Section 302 r/w 34 of Indian Penal Code (IPC), 1860 and section 25/27 of Arms Act, 1959.
After considering the evidence on record, The Sessions Court found the appellant guilty of offence u/s 302 r/w 34 IPC, convicted and sentenced him to rigorous imprisonment for life along with fine while acquitting the other two accused. The court further acquitted the appellant of the offence u/s 25/27 of Arms Act. Feeling aggrieved and dissatisfied with the judgement of conviction and sentence passed by Sessions Court, went on a criminal appeal but was dismissed by the High Court.
ISSUES OF THE CASE
Whether the impugned judgements of the Sessions Court and High Court are in accordance of law?
Whether the conviction of the appellant can be set the case aside to be unsustainable and not maintainable on the omissions and discrepancies in the evidence produced?
LEGAL PROVISIONS
Indian Penal Code 1860 (Replaced Provisions of BNS)
Section 302 – (Section 103(1) of BNS)
“Punishment for murder –
Whoever commits murder shall be punished with death or [imprisonment for life], and shall also be liable to fine.”
Section 34 – (Section 3(5) of BNS) –
“General Explanations.—
(5) When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”
Arms Act 1959
Section 25 -
“Seizure and detention under orders of the Central Government - The Central Government may at any time order the seizure of any arms or ammunition in the possession of any person, notwithstanding that such person is entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, and may detain the same for such period as it thinks necessary for the public peace and safety.”
Section 27 –
“Punishment for using arms, etc.― (1) whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, [shall be punishable with imprisonment for life, or death and shall also be liable to fine.]
CONTENTIONS BY THE APPELLANT
Four persons involved in the crime were charge sheet for same offence and in FIR, no specific role was assigned to appellant and all accused played same role. After joint trial, the two co-accused were acquitted, which could have extended benefit of doubt and acquitted appellant as well.
Appellant was acquitted of charge u/s 25/27 of Arms Act out of same crime scene, hence offence u/s 302 r/w 34 is improbable
With respect to the evidences, eye witness mentioned about deceased bleeding but no blood stains on their clothes and no source of light at scene of crime was mentioned in FIR
FIR did not disclose to which accused was in possession of which weapon and to who shot the bullet.
The fact of provoking and fact of possession of weapons by the accused persons were not mentioned in statement recorded under Section 161, CrPC, which was accepted by Investigating Officer. These inconsistencies in case of prosecution falsify the testimonies of the witnesses.
The only eye witness to the occurrence ie. Deceased wife and Sub Inspector of Police who conducted investigation, were not examined, which are fatal to prosecution case.
The motive of murder i.e. accused demanding jaggery, deceased denying the same and the accused committing crime, appears to be vague. The prosecution has not established the charge framed against appellant beyond reasonable doubt.
CONTENTIONS BY RESPONDENT
Proved from evidence of PW1 and PW2 that the appellant shot the deceased and escaped from the scene of occurrence. PW2 saw appellant having a country made pistol and firing on right chest and arm of deceased.
Gun and empty cartridge were recovered based on the information given by the appellant
From the evidence of PW2, at time of occurrence sufficient source of light for identification of the accused was there. Charge framed against appellant was proved.
Non examination of some witnesses due to lapse is insufficient to discard ocular evidence
Upon proper material evidence, Sessions Court convicted appellant and affirmed by HC
Victim died due to wounds by gunshot proved by evidence of doctor through autopsy report
JUDGEMENT
The Supreme Court applied the Principle of Proportionality to the current case. It was highlighted that due to sudden provocation for not giving jaggery, the accused came to the house of deceased and on exhortation by other accused, the appellant shot the deceased and there was no premeditation in the commission of crime. The appellant was acquitted of the charge under Section 25/27 of the Arms Act, arising out of same crime and he was convicted only for offence under section 302 r/w 34 IPC, whereas other co accused acquitted of same charge. From the certificate received by jailor reveals the appellant has undergone total sentence of 17 years and had a good conduct during the period. The appellant had served incarceration of more than 14 years and had no bad antecedent. It was also noted that appellant belong to poor economic background and was taking care of his family and there exists a possibility of reformation. The sentence awarded by the lower courts was modified to the period already undergone by the appellant. He was ordered to pay fine amount imposed by Sessions Court, if not paid. He was set at liberty if not required by any other case. The bail bond executed by appellant stands discharged.
CONCLUSION
The Supreme Court in the current case has examined the impugned judgments of the lower courts and examined the evidences carefully. In meeting the ends of justice, the principle of proportionality was applied where the conduct of the appellant in the jail during the period and the background of the appellant are considered with respect to his socio economic conditions along with the total sentence period served. On these considerations, the commutation of the sentence is done or the convict is set free of charges when he/she has undergone the reform and is safe to be part of the society.
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WRITTEN BY: SOUJANYA V
GUIDED BY: ADVOCATE ANIK
