LexSUBHASH KUMAR versus STATE OF UTTARAKHAND
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2009] 7 S.C.R 1182
A
SUBHASH KUMAR
v.
STATE OF UTTARAKHAND
Criminal Appeal No. 933 of 2009
B
MAY 06, 2009
[S. B. SINHA AND DR. MUKUNDAKAM, JJ.]
Penal Code, 1860: s. 302134 -Assault by accused with
three co-accused - FIR disclosing name of the accused and
the fact of his being armed with weapon - Specific overt act
~
c attributed to him in deposition of the victim - Conviction of all
the accused by trial court - High Court confirming the
conviction while reducing the sentence of the accused -
Acquittal of the co-accused giving them benefit of doubt as
their names were not ment[oned in FIR and Tl Parade not
D conducted - On appeal, Conviction confirmed - The accused
is not entitled to acquittal by analogy of the case of the co-
accused.
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
E
No. 933 of 2009
From the Judgment and Order dated 27 .08.2008 of the
Hon'ble High Court of Uttrakhand at Nainital in Crl. Appeal No.
150 of 2003
F
Sanjeev Bhatnagar (for Ms. Kusum Chudhary), for the
Appellant.
Jatinder Kumar Bhatia, for the Respondent.
The Judgment of the Court was delivered by
G
S.S. SINHA, J.
1. Leave granted.
2. This appeal is directed against a judgment and order
dated 27.08.2008 holding the appellant guilty for commission
H
1182
SUBHASH KUMAR V STATE OF UTTARAKHAND
1183
[S B SINHA, J.J
of offence under Section 324 read with Section 34 of the Indian A
Penal Code ("IPC" for short) and sentencing him to undergo
one year's rigorous imprisonment and fine of Rs.1,000/- only.
3. One Surendra Kumar Sehgal was a student of D.B.S.
(P.G.) College. Appellant herein also was a student of B.A. Part B
II of the same college. On 31.1.2000, when Surendra Kumar
Sehgal was entering the college through its gate to attend his
N.C.C. class, appellant along with three other persons who were
armed with "Khukries" (a sharp edged weapon) assaulted him
~
on instigation made by the appellant as a result whereof he
suffered five injuries, which are as under:
c
"i.
Incised wound 6 cm x 1.0 cm muscle deep on back
side·of head 11 cm above right ear. This injury was
fresh and it was bleeding.
ii.
Incised wound 2 cm x 0.5 cm x skin deep backside D
of the head and 7 cm below the injury no.1 and the
..
blood was oozing from this injury .
iii.
Incised wound 5 cm x 1 cm x muscle deep, on the left
of head and 6 cm above the left ear.
E
iv.
Incised wound 2.5 cm x 1.1. cm x muscle deep. In the
left upper forearm of index finger of left hand from
which blood is coming out.
v.
Incised wound 2 cm x 1 cm x muscle deep on the
side of middle finger of left hand and blood is coming
F
out this."
4. Appellant was tried for commission of an offence under
Sections 307, read with Section 34 of the IPC along with
Surendra@ Sonu, Manoj@ Monu and Hargopal. Surendra and
G
-!
Manoj are brothers of the appellant whereas Hargopal is their
maternal uncle.
5. The learned trial judge recorded a judgment of conviction
finding the accused persons guilty of commission of offence
under Section 324 read with Section 34 of the IPC.
H
1184
SUPREME COURT REPORTS
[2009) 7 S.C.R. '
~
A
However, by reason of the impugned judgment whereas
the other accused, namely, Surendra, @ Sonu, Manoj@ Monu
& Hargopal were given the benefit of doubt, the judgment of
conviction and sentence passed by the learned trial judge as
against the appellant was upheld. However, his sentence was
B reduced to rigorous imprisonment for one year from three years.
6. Mr. Sanjeev Bhatnagar, learned counsel appearing on
behalf of the appellant would urge:
(i)
On a plain reading of the First Information Report
,.
c
("FIR" for short) it would appear that the appellant
~
was not armed with any "Khukri"; no overt act was
attributed to him and his involvement in the matter
both in regard to possession of an arm as also an
instigation to others to assault him being an outcome
D
of improvement in the depositions of the complainant
)or
before the court, the impugned judgment is liable to
be set aside.
(ii)
Out of four accused, three having been acquitted,
appellant in any event could not have convicted with
E
the aid of Section 34 of the IPC.
7. Mr. Jatinder Kumar Bhatia, learned counsel appearing
on behalf of the State, on the other hand, would support the
impugned judgment.
F
8. The occurrence took place at about 1.00 p.m. on
31.1.2000. The FIR was lodged on the same day at about 3.15
p.m. The statemenExcerpt shown. Read the full judgment & AI analysis in Lexace.