Partly allowed

Kamre Alam @ Kamaryab v. State of U.P.

Allahabad HC20 Aug 2019CRLA/3050/2011

Case brief

AI extract

What is this about?

This court upheld the conviction of two appellants for attempted murder and grievous hurt but modified the life sentence of the main shooter to 10 years rigorous imprisonment and a fine of Rs. 1,50,000 due to prior time served and purpose of deterrence.

What did the court decide?

Conviction upheld; life sentence reduced to 10 years rigorous imprisonment and Rs. 1,50,000 fine for Kamre Alam; sentence for Khalid upheld.

Kamre Alam @ Kamaryab Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2019)

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Court No. 47

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Reserved on 25.07.2019 Delivered on 20.08.2019

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Case :- CRIMINAL APPEAL No. - 3050 of 2011 Appellant :- Kamre Alam @ Kamaryab Respondent :- State Of U.P. Counsel for Appellant :- Ajay Kumar Pandey,Ms Shreya Gupta,Satish Trivedi,Somesh Khare Counsel for Respondent :- Govt. Advocate

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Connected with

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Case :- CRIMINAL APPEAL No. - 3051 of 2011 Appellant :- Khalid @ Shahid Respondent :- State Of U.P. Counsel for Appellant :- Ajay Kumar Pandey,Alok Kumar Singh,Satish Trivedi

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Counsel for Respondent :- Govt. Advocate

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Hon'ble Ram Surat Ram (Maurya) ,J. Hon'ble Umesh Kumar, J.

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[Delivered by Ram Surat Ram (Maurya) , J.]

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Heard Sri Satish Trivedi, Senior Advocate assisted by Sri Ajay Kumar Pandey for the appellants and Sri Anil Kumar Kushwaha, A.G.A., for State of U.P.

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Kamre Alam @ Kamaryab and Khalid @ Shahid have filed aforementioned appeals from their conviction and sentence passed by Additional Sessions Judge/ Fast Track Court No. 5, Meerut dated 29.3.2011 in S.T. No. 874 of 2004, State vs. Kamre Alam @ Kamaryab and others [arising out of Case Crime No. 69 of 2004, under Sections 307/34, 326 of Indian Penal Code, 1860 (hereinafter referred to as the IPC), police station Mundali, district Meerut], convicting Kamre Alam @ Kamaryab, under Section 307 IPC and sentencing for imprisonment for life and fine of Rs. 100000/- and Section 326 IPC and sentencing for 10 years rigorous imprisonment with fine of Rs. 50,000/-, with default stipulation. Khalid @ Shahid has been convicted under Section 307 read with Section 34 IPC and sentenced for 10 years rigorous imprisonment with fine of Rs. 50,000/- and

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under Section 326 IPC and sentenced for 10 years rigorous imprisonment with fine of Rs. 50,000/- with defaults stipulation. All the aforesaid sentences have to run concurrently.

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It may be mentioned that Kamre Alam @ Kamaryab was also chargesheeted under Section 25 of Arms Act but he has been acquitted from the charges by the impugned order 29.03.2011 passed by Additional Sessions Judge/ Fast Track Court No. 5, Meerut in S.T. No. 873 of 2004, arising out of Case Crime No. 73 of 2004, under Section 25 of Arms, Act, P.S. Mundali, Distt. Meerut. The acquittal of Kamre Alam @ Kamaryab under Section 25 of Arms Act has not been challenged either by State or by the informant.

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On the written complaint (Ex-Ka-15) of Ram Pal (PW-2), FIR (Ex-Ka5) of Case Crime No. 69 of 2004 was registered under Section 307/34, 326 IPC, at P.S. Mundali, district Meerut at 09:40 AM by Constable Moharrir Surendra (PW-7), against Kamre Alam @ Kamaryab and Khalid @ Shahid. It has been stated in the FIR that on 16.5.2004, Smt. Poonam wife of Kanti Prasad had gone to take fodder. While returning the accused Khalid and Kamre Alam sons of Sattar Ahmad resident of village Shafiyabad Lauti, distt. Meerut and his relative namely Shagir Ahmad have committed indecent act with Smt. Poonam of which she had made complaint to Kanti Prasad, after returning to the house. Thereafter Kanti Prasad assaulted Kamre Alam for the said act. On 19.5.2004, Kanti Prasad, who is a veterinary doctor was going to the village Jisauri for the purposes of treatment of a buffalo. The informant along with Rajendra Singh, father in law of Kanti Prasad was going to Meerut. Kanti Prasad was on separate scooter. At about 8:30 AM as soon as Kanti Prasad reached at the grove of Soram Singh situated at village Jisauri then the accused Khalid, Kamre Alam and Sagir Ahmad, who were riding on a motorcycle after overtaking the scooter of Kanti Prasad, stopped him and told that they should take revenge of the assault of Kamre Alam. Khalid and Kamre Alam were armed with country made pistol. In the meantime, the informant and Rajendra also came there. At that time Sagir Ahmad exhorted Kamre Alam to shoot Kanti Prasad on which Kamre Alam opened fire from his pistol upon the injured which caused injury on the head of Kanti Prasad. After receiving injury Kanti Prasad fell down. Thereafter Kamre Alam and Khalid targeted their pistol towards informant and Rajendra and warned that

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in case they would proceed they would also be killed. After threatening, the informant and Rajendra Prasad fled away towards the sugarcane field. After fleeing away of the accused, they came out and had gone to the police station along with Kanti Prasad for lodging the FIR.

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After registration of FIR, the matter was investigated by Kunwar Pal Singh (PW-9). He copied the check FIR and G.D. entry in case diary and recorded the statements of Surendra Singh, scribe of the FIR. Thereafter he recorded the statement of the informant Ram Pal (PW-2) and the injured Kanti Prasad (PW-1). On pointing out of Ram Pal (PW-2), he prepared the site plan (Ex Ka-8) and the collected the blood stained earth as well as plain earth from the place of occurrence and prepared its recovery memo (Ex Ka -9). He prepared the recovery memo of spectacles of the injured, thermometer and Scooter bearing registration no. UP 14 D 6704 (Ex Ka 10). Later on S.I. Suresh Chandra Gangwar (PW-6) started investigation in the matter. He tried to arrest the accused but none of the accused could be arrested. Thereafter he took proceeding under Section 82 and 83 Cr P C. Kamre Alam surrendered before the court on 25.5.2004. Thereafter his statement was recorded and on his pointing out country made pistol as well as empty cartridges were recovered and recovery memo (Ex Ka-7) was prepared. He recorded the statement of the Doctor, who was treated Kanti Prasad, the injured. In the meantime, accused Khalid was also surrendered before the Court on 31.5.2004. He recorded the statement of Khalid and on his pointing out, motorcycle used in committing the crime, was also recovered and its recovery memo (Ex Ka-11) was prepared. Thereafter he submitted charge sheet against the accused.

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On the basis of recovery memo (Ex Ka-7) a separate case was registered under Section 25 of Arms Act against Kamre Alam, which was registered as Case Crime No. 73 of 2004. Vinod Kumar Sharma (PW-11) investigated this matter and after recording the statements of the witnesses of recovery as well as accused, he submitted the charge sheet in this case.

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On cognizance, the cases were registered as S.T. No. 874 of 2004 (State Vs. Kamre Alam @ Kamaryab and others) under Section 307/34 and 326 IPC and S.T. No. 873 of 2004 (State Vs. Kamre Alam @ Kamaryab)

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under Section 25 of Arms Act. Both the cases were consolidated and tried together. In order to prove the charges, the prosecution examined Kanti Prasad (PW-1), the injured witness, Ram Pal (PW-2), the informant and eye witness, Rajendra (PW-3) an eye witness, Dr. Siddharth Sharma (PW-5), S.I. Suresh Chandra Gangwar (PW-6), the second Investigating Officer, Head Moharrir Surendra (PW-7) to prove the check FIR, Constable Pramod Kumar (PW-8), the witness of recovery, S.I. Kunwar Pal Singh (PW-9), the first Investigating Officer, Satpal (PW-10), the witness of recovery, S.I. Vinod Kumar Sharma (PW-11), the Investigating Officer under Section 25 of Arms Act, Dr. A.S. Rana (PW-13) and Dr. Grees Tyagi (PW-14) and filed documentary evidences.

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All the incriminatory materials and facts were put to the accused, under Section 313 CrPC. They denied the evidence and materials and claimed false implication, due to enmity. It has been stated that Shajid son of Sattar, brother of the accused Kamre Alam @ Kamaryab was murdered on 16.10.2000 in which Kanti Prasad and others were named accused. Due to enmity of that case they have been falsely implicated. Although the incident was caused by unknown accused. The accused did not examine any witness.

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The Additional Sessions Judge by the impugned judgement held that the prosecution case was fully proved from the statements of Kanti Prasad (PW-1), the injured witness, Ram Pal (PW-2) the informant and eye witness and Rajendra (PW-3) the eye witness. Although there was minor contradiction between the statements of the witnesses but their statements in respect of causing gun shot injury by Kamre Alam to Kanti Prasad has been consistent. In view of the fact that the incident has been proved by the eye injured and witnesses, only for the reason of previous enmity, it cannot be said that the accused were falsely implicated. The presence of Ram Pal and Rajendra (Pws -2 and 3) cannot be doubted for the reason that the FIR was registered within one hour ten minutes of the incident, which was not possible, in case the witnesses were not present on the spot. From the injury caused by the accused Kamre Alam, the injured Kanti Prasad had become totally blind. Participation of Khalid in the said offence has been fully proved. On these findings, he convicted the appellants under Section 307, 326 read with Section 34 IPC and sentenced as mentioned above. Hence

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these appeals have been filed.

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We have considered the arguments of the counsel for the parties and examined the records. In order to prove the prosecution case, the prosecution examined Kanti Prasad (PW-1) the injured witness, who has stated that on 16.5.2004, his wife had gone to take fodder at the field where Kamre Alam, Khalid and Sagir had committed indecent act with her. Any how she could save herself and when she came to the house, she told me about the incident. Thereafter Kanti Prasad went to the house of Kamre Alam in respect of making inquiry about the incident, where an altercation had taken place between them. He had also assaulted Kamre Alam. At that time Kamre Alam had given threatening to take revenge. On 19.5.2004 at 08:30 AM, he was going to village Jisauri for treatment of buffalo of Sukhvir. He was having a diploma in veterinary doctor. He was going on his scooter. His father Ram Pal and his father in law Rajendra were also going on a scooter behind him at a distance of about 10-15 meter. As soon as he reached at the grove of Soram then Shagir Ahmad, Kamre Alam and Khalid, who were in one motorcycle take over him. The motorcycle was driven by Shagir, who was brother in law of Kamre Alam. Thereafter they stopped his scooter and told that now they would take revenge of the assault of Kamre Alam. Shagir and Khalid caught hold him. Then he begun to shout on which his father and father in law, who were also coming behind him, reached on the spot. Kamre Alam opened fire from his pistol on his head which caused injury to him due to which he fell down on the spot. Khalid was also armed with pistol. When his father and father in law tried to save him then Khalid and Kamre Alam targeted their pistols towards them. After fleeing away of the accused, his father and father in law took him to the police station Mundali, where the police made inquiry from him in respect of the incident, which was informed by him. As he was in critical position as such full incident could not be narrated by him. Thereafter he was taken on the motorcycle to Medical Collage Meerut, where his treatment was done. From Medical Collage Meerut, he was referred to Dhanwantari Hospital, where he was admitted and remained under treatment. Due to the injuries caused by the accused, he had become completely blind from both his eyes. The witness has been long cross-examined but in respect of place and time of the incident and manner of assault his statement was

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consistent.

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The informant Ram Pal (PW-2) was examined, who has stated that he used to do dairy business. Prior to this incident, the accused had committed indecent act with Poonam, his daughter in law, when she had gone to take fodder in the forest. Poonam informed about the incident to her husband Kanti Prasad. When Kanti Prasad made inquiry in this respect from Kamre Alam then altercation had been taken place between them and Kanti Prasad had assaulted Kamre Alam. On the date of incident, Kanti Prasad was going to village Jisauri to treat buffalo of Sukhvir on his scooter. The witness Ram Pal and Rajendra Prasad was also going on a separate scooter behind Kanti. As soon as Kanti reached at the grove of Soram, the accused after overtaking his scooter, stopped him. Thereafter Sagir was clinching with Kanti and Kamre Alam opened fire over Kanti, which caused injury in his head. Due to which his both eyes had damaged. Khalid targeted us with his pistol and warned us. After causing injury, the accused fled away towards Dilauri. They took Kanti to police station Mundali where the FIR was lodged and after lodging the FIR they took Kanti to Medical Collage Meerut.

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The prosecution examined Rajendra (PW-3) who was pillion rider on the scooter along with Ram Pal and was an eye witness. Ram Pal has also supported the prosecution story.

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A perusal of the statements of Kanti Prasad (PW-1), Ram Pal (PW-2) and Rajendra (PW-3) show that their statements in respect of causing gun shot injury by Kamre Alam on the head of the injured Kanti Prasad is consistent. The participation of Khalid in the incident has also been alleged by all the three witnesses, inasmuch as when the witness Ram Pal and Rajendra tried to intervene in the matter then Khalid targeted his pistol towards them and threatened to kill them. Therefore the charges against the appellants has been fully proved. Nothing has been argued by the counsel for the appellant to disbelieve the statements of the aforesaid witnesses.

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The counsel for the appellant however submits that lesser punishment may be awarded to the appellants inasmuch as the victim Kanti Prasad is still surviving. So far as loss of his both eyes is concerned, Kamre Alam @ Kamaryab has been awarded 10 years rigorous imprisonment under Section

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326 IPC. Kamre Alam @ Kamaryab, who is the main shooter in this case, is in jail since 24.4.2004 to 31.6.2006 during trial and also in jail from the date of conviction i.e. 29.3.2011. Thus the main accused Kamre Alam @ Kamaryab had served about 9 years and 6 months imprisonment. Khalid is also in jail from the date of conviction i.e. 29.3.2011.

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The Court below has awarded life sentence to Kamre Alam @ Kamaryad under Section 307 IPC. Relevant part of Section 307 IPC is quoted below:-

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Section 307. Attempt to murder. —Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

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16. In the case, where hurt has been caused to the victim, Section 307 IPC provides minimum sentence of imprisonment up to ten years and maximum sentence of imprisonment for life. Supreme Court in Chandrakant Patil v. State, (1998) 3 SCC 38, has held that that Christopher J. Emmins, M.A., in his A Practical Approach to Sentencing , has suggested that the maximum sentence should be reserved for the gravest instances of offence likely to occur as a principle of common sense.

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17. Supreme Court in Jameel v. State of U.P., (2010) 12 SCC 532, has held that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the

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question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. This judgment has been approved by a Bench of three Judges in Hazara Singh v. Raj Kumar, (2013) 9 SCC 516 . The Supreme Court further held that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment.

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18. Sentence as awarded by the court below to Kamre Alam @ Kamaryab and Khalid @ Shahid have not been challenged by State of UP or the informant. It is admitted to Kanti Prasad (the injured) that Sajid brother of Kamre Alam @ Kamaryab was murdered in the year 2000, in which Kanti Prasad (the injured) was an accused. After receiving gunshot injury of the first fire, the injured had fallen down but Kamre Alam @ Kamaryab did not repeat fire and had not committed excessive cruelty. At the time of incident, age of the accused was about 28 years. The appeal came up for hearing after about 15 years of the incident. In the meantime, Kamre Alam @ Kamaryab has served about 09 years and 06 months sentence. The accused had also minor children and aged parents. In such circumstances, we do not consider it proper to award maximum sentence as provided under Section 307 IPC. Thus sentence of Kamre Alam @ Kamaryab as awarded under Section 307 IPC is liable to be modified to the extent that Kamre Alam @ Kamaryab is awarded 10 years rigorous imprisonment and fine of Rs. 1,50000/- under Section 307 IPC.

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In the results, the Criminal Appeal No. 3050 of 2011 is partly allowed . The conviction of the appellant Kamre Alam @ Kamaryab under Section 307, 326 read with Section 34 IPC passed by Additional Sessions Judge / Fast Track Court No. 5, Meerut in S.T. No. 874 of 2004 arising out of Case Crime No. 69 of 2004, P.S. Mundauli, Distt. Meerut is upheld. So far as sentence under Section 307 IPC is concerned, Kamre Alam @ Kamaryab is awarded 10 years rigorous imprisonment and fine of Rs. 1,50000/- (Rs. one lakh fifty thousand) under Section 307 IPC. Remaining sentence and fine as awarded by the court below under Section 326 IPC is upheld.

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Criminal Appeal No. 3051 of 2011 (Khalid @ Shahid Vs. State) is dismissed . The conviction and sentence of the appellant Khalid @ Shahid under Section 307, 326 read with Section 34 IPC passed by Additional Sessions Judge / Fast Track Court No. 5, Meerut in S.T. No. 874 of 2004 arising out of Case Crime No. 69 of 2004, P.S. Mundauli, Distt. Meerut is upheld.

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The sentence already undergone by the appellants shall be adjusted in the sentence awarded to the appellants. On deposit of fine, it shall be paid to the victim. In case, fine is not deposited within the stipulated period by the appellants then they shall serve additional sentence of six months in lieu of it. They shall submit bonds before the Magistrate concerned in view of Section 437 A Cr P C within one month from the date of their release. The fine as awarded to the appellants shall be deposited by them within three months from the date of their release.

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22. Registry is directed to transmit the original record of the Trial Court and the judgment for immediate compliance to the Court concerned so as to ensure that the accused-appellant serves out the remaining sentence, in accordance with law. The Trial Court is obliged to communicate compliance report to this Court forthwith.

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Order Date :- 20.8.2019 Rahul Dwivedi/-

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[Umesh Kumar,J.] [ Ram Surat Ram (Maurya),J.]

Kamre Alam @ Kamaryab v. State of U.P.

Case brief

What is this about?

What did the court decide?

Kamre Alam @ Kamaryab v. State of U.P.

Case brief

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