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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Virender Singh,Mohd. Yaqoob Mir, JJ.
Subash Chander & Ors. - Appellant
Versus
State Of J&K - Respondent
Cr. Appeal No. 06/2007 & Cr.M.P. Nos. 27/2008, 29/2008 & 33/2008 c/w Cr. Appeal No. 08/2007 & Cr.M.P. No. 24/2008; & Confirmation No. 03/2007
Decided On : 18 December, 2009
Virender Singh, J. 1. Vide this judgment, we intend to dispose of Criminal Appeal No.06/2007 filed by Subash Chander S/o Punnu Ram R/o Chak Gorian, Tehsil Bishnah, District Jammu, Criminal Appeal No.08/2007 filed by Raghbir Pal alias Bagga and Surinder Pal alias Bittu, sons of Late Sh. Pritam Dass Kapoor R/o Jawahar Nagar, Rajouri and Confirmation No.03/2007 sent by learned Sessions Judge, Rajouri, under Section 374 of the Code of Criminal Procedure, Svt. 1989.
Fact of the Case:
Deceased in this case is Vineet Kumar aged 25 years, son of PW Om Parkash. He died on account of the gun shot allegedly fired by Subash Chander from his service gun (AK-47), as he at the time of occurrence was employed in J&K Police as Constable and attached with PW Ranbir Singh Manhas, the then Dy.SP DAR Police Lines Rajouri, as his bodyguard. The other bodyguard was PW constable Sudershan Singh. The occurrence is of 19.09.2001 at about 8 p.m. in the area of Jawahar Nagar, Rajouri, First Information Report (FIR) in this regard was lodged in Police Station Rajouri promptly i.e. within twenty (20) minutes, copy thereof reached the Illaqa Magistrate (Chief Judicial Magistrate) on the next day i.e. 20.09.2001 at 1 p.m. Vineet Kumar died on the date of occurrence itself in the hospital.
Finding of the Court:
We are now left with another important aspect of the matter as to whether under the present set of circumstances, conviction of accused Subash Chander can be maintained under Section 302 R.P.C. or the main offence deserves to be diluted. Since accused Bagga and Bittu already stand acquitted by us, the case of Subash Chander is to be taken as his individual act. The very case set up by the prosecution is that Vineet Kumar (since deceased) was not present at the scene upto the stage of arrival of Dy.SP Manhas alongwith constables Subash Chander and Sudershan Singh. It is only when constable Subash Chander was apprising Dy.SP Manhas about the assembling of the crowd at the petrol pump, he was seen coming in his vehicle (Tata Mobile) from Khandli side. So it is quite natural that Vineet being real brother had to react to a situation and this is what was done by him in this case. May be Dy.SP has made an attempt to save constable Subash Chander from the main offence, but his statement to the effect that he had seen Vineet Kumar driving his vehicle rashly towards the point where their jeep was parked appears to be probable. The vehicle of Vineet is not hit from front is also to be kept in mind. Taking all these facts collectively, it is quite possible that when Vineet Kumar was proceeding towards constable Subash Chander while driving his vehicle, he might have made an attempt to hit him and in retaliation Subash Chander used his gun. By that time the vehicle of Vineet had already crossed some distance. This is the reason that the shots have hit the back portion of the vehicle, out of which, one shot hit the driver seat also.
Issues: None
Ratio Decidendi: Following the ratio of the aforesaid judgment and after appreciating the entirety of facts of the case on hand in its right perspective, in our considered view, it would fall within the mischief of Section 304 Part-I RPC only against accused Subash Chander and not one punishable under Section 302 RPC, for which he already stands convicted by the learned trial Court. We, therefore, set aside his conviction under section 302 RPC and instead convict him under Section 304 Part-I RPC. His conviction under Section 27 of the Arms Act, however, shall remain undisturbed. Since the main offence has been diluted to Section 304 Part-I RPC, the ends of justice would adequately be met, if he is sentenced to rigorous imprisonment of ten years. However, the fine of Rs.10,000/- imposed upon him by the learned trial Court is enhanced to Rs.1 lac (Rs.1,00,000/-), in default thereof, he shall further undergo rigorous imprisonment for one year. In the event of amount of fine being realized, a sum of Rs.75,000/- shall be disbursed to the complainant party. The sentence already imposed under Section 27 of the Arms Act shall remain intact and both the sentences awarded for different offences would run concurrently.
Final Decision: Cr. Appeal No. 08/2007 filed by Raghbir Pal alias Bagga and Surinder Pal alias Bittu stands allowed. They are acquitted of all the charges. As they are stated to be in custody, they shall now be released forthwith, if not required in any other case. Cr. Appeal No.06/2007 filed by constable Subash Chander stands partly allowed in the aforesaid terms. Confirmation No.03/2007 also stands disposed of accordingly.
1. Vide this judgment, we intend to dispose of Criminal Appeal No.06/2007 filed by Subash Chander S/o Punnu Ram R/o Chak Gorian, Tehsil Bishnah, District Jammu, Criminal Appeal No.08/2007 filed by Raghbir Pal alias Bagga and Surinder Pal alias Bittu, sons of Late Sh. Pritam Dass Kapoor R/o Jawahar Nagar, Rajouri and Confirmation No.03/2007 sent by learned Sessions Judge, Rajouri, under Section 374 of the Code of Criminal Procedure, Svt. 1989.
2. Appellant-Subash Chander is convicted under Section 302/34 of the Ranbir Penal Code read with Section 27 Arms Act, whereas his co-accused Raghbir Pal and Surinder Pal are held guilty under Sections 302/34/109 RPC. Besides sentencing all the three appellants for life imprisonment, they have also been slapped with a fine of Rs.10,000/- each, in default thereof, to further undergo rigorous imprisonment for six moths. Appellant-Subash Chander has also suffered rigorous imprisonment for seven years and a fine of Rs.2,000/- under Section 27 Arms Act, in default thereof, to further undergo rigorous imprisonment for six months. However, both the sentences awarded to him have been ordered to run concurrently.
3. Appellant Raghbir Pal and his brother Surinder Pal are called by their nick names as `Bagga and `Bittu respectively and most of the time they are referred to by their aforesaid nick names only in the statement of witnesses. So hereinafter they shall be referred to as `Bagga and `Bittu and the third appellant as `Subash Chander.
4. Deceased in this case is Vineet Kumar aged 25 years, son of PW Om Parkash. He died on account of the gun shot allegedly fired by Subash Chander from his service gun (AK-47), as he at the time of occurrence was employed in J&K Police as Constable and attached with PW Ranbir Singh Manhas, the then Dy.SP DAR Police Lines Rajouri, as his bodyguard. The other bodyguard was PW constable Sudershan Singh. The occurrence is of 19.09.2001 at about 8 p.m. in the area of Jawahar Nagar, Rajouri, First Information Report (FIR) in this regard was lodged in Police Station Rajouri promptly i.e. within twenty (20) minutes, copy thereof reached the Illaqa Magistrate (Chief Judicial Magistrate) on the next day i.e. 20.09.2001 at 1 p.m. Vineet Kumar died on the date of occurrence itself in the hospital.
5. The prosecution case as one finds from the contents of the F.I.R., which is recorded on the basis of reliable source is that on 19.09.2001, Constable No.598/R Subash Chander, was going to Jawahar Nagar in Government vehicle (Gypsy No.0936- JK11) and on the way near the petrol pump of Bagga and Bittu, he with the connivance of these two persons, fired two shots from his gun (AK-47), injuring Vineet Kumar, who while being shifted to the hospital died on the way. On these allegations, a formal F.I.R. bearing No.273/2001 came to be registered at Police Station Rajouri initially under Section 302/34 RPC. The investigation of the case was carried out by PW Mohd. Rafiq Chowdhary, who at that time was posted as SHO Police Station Rajouri. He immediately reached the spot, prepared the rough site plan of the place of occurrence, lifted blood stained sand and crushed stone (Bajri). Two fired cases of AK-47 were also seized and sealed on the spot. Tata Mobile (without registration Number) of the deceased-Vineet Kumar having gun shot holes on the body (Dalla) and drivers seat was also taken into possession. As he noticed some blood of the deceased on the drivers seat, blood stained seat cover was cut by him from that portion and seized and sealed for chemical examination. Photographs of the place of occurrence, dead body of the deceased and Tata Mobile were got clicked by the photographer of the Crime Branch. Statements of the witnesses to the main occurrence and with regard to the previous incident which had occurred just some time prior to the main occurrence were also recorded under Section 161 Cr.P.C.
6. On 19.09.2001 itself, Subash Chander was arrested and during his interr
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