Partly allowed

Dinesh Kumar v. State

Rajasthan HC7 May 2015CRLA/148/1989

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court altered the appellant's conviction from attempt to murder (Section 307 IPC) to attempt to commit culpable homicide (Section 308 IPC) due to lack of intent to kill. The court reduced the sentence to the period already undergone and imposed a new fine.

What did the court decide?

Conviction altered from Section 307 IPC to Section 308 IPC; sentence reduced to time already served; new fine of Rs. 25,000 imposed.

Dinesh Kumar Vs State — Specific Performance | Rajasthan HC (2015)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

¶3

JUDGMENT

¶4

SB Criminal Appeal No. 148/1989 (Dinesh Kumar Versus State of Rajasthan)

¶5

Date of Judgment :: 7^th May, 2015 HON'BLE MR. JUSTICE MAHESH CHANDRA SHARMA

¶6

Mr. V.P. Bishnoi, counsel for the accused appellant Mr. Jitendra Shrimali, P.P. for the State

¶7

This appeal has been filed by

¶8

the appellant against the judgment and order dated 25.4.1989 passed by Addl. Sessions Judge, Jaipur District Jaipur, in Sessions Case No. 30/1985 (62/1987), whereby the coaccused Rajkumar has been acquitted from the alleged offences, while accused appellant Dinesh Kumar has been convicted for the offence under Section 307 IPC and sentenced to undergo 5 years' RI together with fine of Rs. 2000/-; in default of payment of fine, to further undergo 4 months' RI.

¶9

Brief facts of the case are

¶10

that on 20.3.1985 at about 1.15 AM in the night, injured Rajendra Kumar Chauhan submitted a written report to SHO, Arakshi Kendra, Shahpura. It had been alleged therein that earlier in the evening, he accompanied by Saleem, Nanuram, Shrawan Gurjar had gone to see movie in local auditorium at Shahpura.

¶11

¶12

When the show was going on. At about 11.00 PM suddenly some employee of the auditorium blazed torch light on the face of Saleem, to which he objected. The torch bearer then came near. Injured informant also objected to blazing the torch, but the Cinema employee started abusing them. In the meanwhile another person came there and he held the informant from his hair and lifted him outside his seat. This intruder was also shouting to take the life of the informant. He was slim and tall by appearance with small mustaches. This stranger suddenly fired a shot from Revolver. The informant drew himself aside. Simultaneously a second fire was made which hit the informant in the right side of his chest. The informant was dazed and he took to his heals. On the basis of said report, an FIR came to be lodged at Police Station Shahpura for the offence under Section 307 IPC. Thereafter investigation was started and on completion of investigation, the police submitted the challan before the Magistrate concerned. Thereafter the Magistrate committed the case to the Court of Sessions, who transferred the case to Addl. Sessions Judge, Jaipur

¶13

¶14

District, Jaipur. The trial court framed charges against the accused persons, who denied for the same and claimed for trial. Thereafter the prosecution has produced the 17 witnesses and exhibited some documents. The statement of the accused persons were recorded under Section 313 CrPC. They also produced one defence witness. After hearing both the sides, the learned trial court has passed the judgment and order dated 25.4.1989 acquitting the co-accused Rajkumar and convicting and sentencing the accused appellant, as indicated here-in-above.”

¶15

Against the said judgment and

¶16

order passed by the trial court, the appellant has filed the instant appeal.

¶17

Learned counsel for the

¶18

accused appellant has contended that the trial court has not properly appreciated the evidence submitted by the accused appellant. He has further contended that as per the statement of Dr. Praveen Kumar Gupta, PW-11, the case of the appellant does not fall under Section 307 IPC because there was no intention of the accused appellant to kill the injured. The intention of the accused appellant was to maintain the peace and

¶19

¶20

tranquility in the Cinema Hall, where the movie was going on and it was his duty to keep the peace and tranquility in the Cinema Hall as he was the Manager of the Cinema Hall. He has further drawn the attention of this Court on para no. 20 of the judgment of the trial court, which is reproduced as under:

¶21

"अभ�य�जन पक क� ओर स� म�लजजम द�न�श क� कबज� स� बर�म� ह�ई ररव�लवर तथ� क�रत"स� क� समब$ध म& ववध( ववज�न पय�गश�ल� क� ररप�र- स�कय म� प�श क� गई ह/ जजसक� समब$ध म& अभ�य�क द�र� उठ�ई गई आपत( ननशय ह8 स�रव�न ह/ कक अभ�य�जन पक द�र� न त� ररप�र- क� प�श- ह8 कर�य� गय� ह/ तथ� न उसक� समब$ध म& म�लजजम स� बय�न म�लजजम म& पश ह8 प"छ� गय� ह/ इस क�रण वह स�कय म� ग�ह8 नह8 ह/| ववद�न अधधवक� अभ�य�क क� यह �ल8ल �( इस सम��- म& स�थ-क ह/ कक म�लजजम क� कबज� स� बर�म� ररव�लवर क�रत"स आद� क� उस( ह�लत म� ववध( ववज�न पय�गश�ल� म& जम� कर�कर आन� व�ल� प�भलसकम@ इशरचन� क� स�कय म& प�श नह8 ककय� गय� ह/|”

¶22

He has further contended that Motbir witnesses have not supported the recovery. Hence, the impugned judgment and order of the trial court be set-aside.

¶23

In the alternate he has contended that moreover his case falls under Section 308 IPC instead of section 307 IPC and since the occurrence took place on 20.3.1985 i.e. 30 years ago from today; the appellant is facing the trial since the last 30 years; he has remained in custody for about 26 days; at the time of commission of alleged offence the appellant was young, but now he is 56 years of age; he has married

¶24

¶25

and having the children of marriageable age; he is not previously convicted person and he is not a habitual offender, hence after altering his conviction from Section 307 IPC to Section 308 IPC, he should be released on probation, if not, then the accused appellant should be released for the period undergone by him in custody, as indicated here-inabove. He has further contended that the appellant is ready to deposit the fine, as may be imposed by this Court and the same may be given to the injured.

¶26

On the other hand, learned PP appearing for the State has opposed the same. He has further contended that the trial court after due appreciation of evidence submitted by both the parties, has rightly convicted the accused appellant, hence no interference is required by this Court. In this view of the matter, the appeal filed by the appellant(s) be dismissed and the judgment of the trial court be upheld.

¶27

I have heard learned counsel for the parties and carefully perused the material made available to me.

¶28

It is an admitted fact that there was no intention or knowledge of the accused

¶29

¶30

appellant to kill or do murder of injured Rajendra Kumar. He was seeing the movie and accused appellant was the Manager of the Cinema Hall. Being the Manager of the Cinema Hall, it was the duty of the appellant to keep the peace and tranquility in the Cinema Hall. When the injured and other persons sitting with him started using abusive language and disturbing the peace in the Cinema Hall, the appellant went to the injured and asked them not to do the things, which they were doing, but even then they continued with the same. On this count, some altercation took place. Thus, this case falls under Section 308 IPC and not under Section 307 IPC.

¶31

For ready reference, Section 307 and 308 IPC are reproduced as under: 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

¶32

¶33

[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.—[When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.] 308. Attempt to commit culpable homicide .— 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 culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

¶34

Looking to the facts and circumstances of the case that the occurrence took place about 30 years ago from today; the age of the accused appellant is 56 years; he has married and having the children of marriageable age; he remained in custody for 26 days, in my view, it is a fit case to alter conviction of the appellant from Section 307 IPC to Section

¶35

¶36

308 IPC, and instead of releasing the appellant on probation, release him for the period already undergone by him in custody, as indicated above.

¶37

For these reasons, this appeal is disposed of with the following directions: i) The appeal filed on behalf of accused appellant is partly allowed;

¶38

ii) His conviction is altered from Section 307 IPC to Section 308 IPC.

¶39

iii)His sentence is reduced to the period already undergone by him in confinement, as indicated above.

¶40

iv) A fine of Rs. 25,000/- is imposed upon the accused appellant and he is directed to deposit the aforesaid amount of fine with the trial court within a period of 3

¶41

months from today. After deposition of the said amount, same shall be given to injured Rajendra Kumar. The said amount of fine shall be in addition to the

¶42

¶43

amount of compensation awarded by the court below.

¶44

v) If the accused appellant does not deposit the aforesaid amount of fine, with the court below within the stipulated period, as mentioned above, then he will serve the sentence, as awarded by the trial court.

¶45

vi) The sentence of the accused appellant was suspended and he is on bail. His bail bonds will be cancelled by the trial court only after deposition of the aforesaid amount of fine by the appellant with the trial court within the stipulated period, as mentioned above, for the purpose of giving the same to injured Rajendra Kumar.

¶46

Impugned judgment stands modified, as indicated hereinabove .

¶47

(Mahesh Chandra Sharma), J.

¶48

¶49

All corrections made in the judgment / order have been incorporated in the judgment / order being E-mailed.

¶50

Dilip Khandelwal PA

Dinesh Kumar v. State

Case brief

What is this about?

What did the court decide?

Dinesh Kumar v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Laxmi Kant and Ors. Vs State

Bhagwan Swaroop Vs State

Chagan Lal Vs State

Bane Singh and Ors. Vs State

Dhan Singh Vs State

Ranveer Vs State