PRADEEP SHENDE Vs. STATE OF C.G.

JUDGEMENT

(1.) THE present appeal arises out of judgment & order dated 29.01.2010 passed by Additional Sessions Judge, Khairagarh, District Rajnandgaon in S.T. No. 5/2007 convicting the accused/appellant for the offence punishable under Section 307 of the Indian Penal Code and 27 of the Arms Act and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 4,000 in default of payment of fine to further undergo rigorous imprisonment for six months and to undergo rigorous imprisonment for 3 years and pay fine of Rs. 1,000, in default of payment of fine to further undergo rigorous imprisonment for two months respectively. Prosecution case in brief is that one Rikhi Ram acquitted accused and present appellant Pradeep Shende had taken some amount from Dharmendra (PW -21) for purchasing vehicle and when Dharmendra demanded his money back, accused/appellant showed his annoyance by saying that he gave nothing in writing and therefore he would pay the amount as per his desire. It is alleged that some dispute cropped up between them and thereafter accused/appellant entered the house of acquitted accused Rikhi Ram, came out carrying some weapon and started abusing Krishna Kumar (PW -23) and Dharmendra (PW -21). Thereafter they fired a gun shot on Krishna Kumar and Dharmendra as a result of which Krishna Kumar (PW -23) sustained injury on his chest and Dharmendra on his abdomen. They were shifted to Government Hospital Rajnandgaon, by Manohar Sahu (PW -22), information was given to the police and dehati nalisi (Ex.P -31) was recorded. Injured Dharmendra was shifted to Khairagarh hospital and looking to the condition of both the victims they were shifted to Hospital at Sector -9, Bhilai. Dying declaration of Krishna Kumar and Dharmendra (the same would be treated as statements) were recorded vide Ex. P -30 and 32. Unnumbered FIR was registered vide Ex.P -33 at Police Station Basantpur and then numbered FIR (Ex.P -34) was registered at P.S. Khairagarh on 15.12.06 under Section 307 /34 IPC. Krishna Kumar was medically examined at Government Hospital Rajnandgaon vide Ex.P -14 by Dr. Sadani (PW -10) whereas Dharmendra (PW -21) vide Ex.P -23 at Government Hospital Khairagarh by Dr. P.S. Parihar (PW -15) and looking to their condition they were advised for x -ray at Sector 9 hospital Bhilai vide Ex.P -24 -25 & Ex.P -26 -27 by Dr. Rajeev Pal. After investigation, charge sheet was filed on 16.3.07 against the accused/appellant, acquitted accused Rikhi Ram, Saroj Bai and Rahul Giri under Section 307 /34 IPC and accordingly learned trial Judge has framed charge under Section 307 IPC and 25 and 27 of the Arms Act against accused/appellant whereas against acquitted accused Saroj Bai and Rahul Giri have been charged under Section 307 /34 IPC.

(2.) IN support of its case, prosecution has examined 29 witnesses. Statement of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case.

(3.) CONTENTION of Shri Tiwari, counsel for the appellant is that even if the entire case of prosecution is taken as it is, the incident occurred on account of sudden dispute as a result of which the injured might have suffered some injuries but those injuries have not been caused by the accused/appellant. He submits that on the same set of evidence other accused persons have been acquitted and therefore conviction of the accused/appellant is not in accordance with law. According to Shri Tiwari, at best the appellant would be liable to be convicted under Section 308 IPC and for which he has already remained in jail for more than 5 years and therefore his sentence be reduced for the period already undergone by him. Lastly, it has been argued that even if the conviction of the accused/appellant is maintained under Section 307 IPC, his sentence can be reduced for the period already undergone by him.