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Sarfaraz & Another v. State - CRIMINAL APPEAL No. 3012 of 1982  RD-AH 11190 (4 July 2007)
Court No. 49
Criminal Appeal No. 3012 of 1982
Sarfaraz and another Vs. State of U.P.
Hon'ble M. K. Mittal, J.
1. Appellants Sarfaraz and Munna Radiowala sons of Mumtaz Ali, residents of Begum Purwa, Post Office Transport Nagar, P.S. Babu Purwa, District Kanpur have preferred this appeal against the judgment and order dated 1.12.1982 passed by 6th Addl. Sessions Judge, Kanpur in S. T. No. 84 of 1981 whereby the appellant Sarfaraz was found guilty and convicted under Section 307 IPC and the appellant Munna Radiowala was found guilty and convicted under Section 307/34 IPC. Both the appellants have been sentenced to undergo rigorous imprisonment for five years.
2. I have heard Sri Raghvendra Dwivedi for the appellants, Sri A. B. Srivastava, learned A.G.A. and have perused the trial court record.
3. Brief facts of the case are that on 5.9.1977 at about 9 a.m. when the complainant Fatehmohammad was sitting at his shop the accused passed in front of the shop. Rs. 50 of complainant were due against Munna and when he demanded the money he stated that he was not having money at that time. When the complainant said that Id festival was approaching, the accused abused him and went away saying that he would return and give the money. At about 9.30 a.m. the same day accused came and said that they would settle the account and took their country made pistols from their pockets and fired at the complainant. The fire made by Sarfaraz hit Fatehmohammad in the right shoulder region causing him injuries. At the alarm raised by him Kallu, Mukhtar came and challenged the accused who went away. A person was sitting at the shop and the complainant got the report (Ex-Ka-1) scribed by him.
4. The report was lodged at police station at 10.25 a.m. Constable Moharrir Ram Dutt Rathore, P.W.-4 was posted at P.S. Juhi, Kanpur and on the basis of the written report he prepared the check report Ex-Ka-8. He also registered the case at rapat no. 29 and its copy is Ex-Ka-9.
5. Investigation was taken up by Sub inspector Satya Pal Singh P.W.-3. He interrogated the witnesses and also the complainant. He also inspected the place of occurrence and prepared the site plan Ex-Ka-4. He also took the tickley of the cartridges and piece of tirpal from the place of occurrence and prepared the fard Ex-Ka-6. He also noted the pellet marks at the door. After completing the investigation he submitted the charge sheet Ex-Ka-7 against the accused persons.
6. Dr. S. K. Goyal was posted as medical officer at W.H.M., Hospital on 5.9.1977. The injured was examined by him at 11.47 a.m. The doctor found multiple gun shot wounds numbering about forty in an area of 6-1/2 " X 4 " in right upper arm in shoulder, skin of the wound was cut in 1/8 " X 1/8 " X 4". X ray was advised. Since Dr. Goyal was not available the prosecution examined Dr. H. N. Bahadur, P.W.2. He has stated that the injury was simple and was not on any vital part and there was no blackening, tatooing and scorching on the injury.
7. The case was committed to the Court of Sessions by Metropolitan Magistrate, Kanpur by order dated 6.1.1981. The charge was framed against the accused persons on 5.8.1988. They pleaded not guilty and claimed trial.
8. In support of its case, prosecution led evidence and examined complainant Fatehmohammad, P.W.-1 besides the above noted witnesses. Complainant stated the prosecution case on oath. Accused were examined under Section 313 Cr.P.C. They denied the prosecution case and contended that they had been impleaded falsely on account of enmity.
9. Learned Trial Court after considering the evidence came to the conclusion that the prosecution had been able to establish its case against the accused persons and that they had come with intention to kill the complainant and that with that intention had fired at him although the injury was found to be simple. Feeling aggrieved appellants have come up in this appeal.
10. During arguments, learned counsel for the appellants pressed this appeal on the question of sentence only. He has contended that the incident took place as far back as on 5.9.1977 and that the accused have suffered the trauma of trial and appeal for a long period of thirty years and that they be sentenced with the period already undergone. He has also contended that some fine be also imposed on the appellants.
11. Considering the facts and circumstances of the case and the nature of injuries as caused and the fact that the accused have suffered the trauma of trial and appeal for such a long period, the interest of justice will be served if they are sentenced with the period already undergone and fine of Rs. 5000/- is also imposed on each of them.
12. The conviction of the appellant Sarfaraz under Section 307 IPC and the appellant Munna Radiowala under Section 307/34 IPC is hereby confirmed. However, the accused are sentenced with the period already undergone under these sections. A fine of Rs. 5000/- under the section is also imposed on each of the accused and in case of any default the accused shall undergo rigorous imprisonment for three months. The accused shall deposit the fine within a period of one month from today. When the fine is deposited, Rs. 10,000/- shall be paid as compensation to the injured Fatehmohammad or his legal heirs if he is not available for any reason forthwith.
13. Appeal is hereby dismissed with the above modification.
14. The copy of the judgement be certified to the learned Trial Court at the earliest for necessary compliance.
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