Anil Kumar Sharma, J.@mdashChallenge in this appeal is to the judgment and order dated 3.4.1987 passed by Sri P.C. Mathur, the then 2nd Addl. Sessions Judge, Aligarh in S.T. No. 438 of 1985 whereby both the appellants were convicted for the offence punishable u/s. 307/ 34 IPC and each had been sentenced to undergo three years'' rigorous imprisonment.
2. Shorn of details the prosecution story as borne out in the FIR and the evidence led during trial is that on 22.1.1984 at about 9:30 p.m. Ganpat Singh son of Bhikam Singh resident of village Barsauli P.S. Hasayan, District-Aligarh lodged an oral report in P.S. Hasayan wherein it was stated that he had old enmity with Roop Ram and his family members on account of agricultural land and well. Today at about 5:00 p.m. he along with his cousin Nek Ram returned at the nohra of Chiranji Lal after attending the call of nature. They stayed there for a while, then sister of Nek Ram came to call them for meals. They left for home, but on way Roop Ram and his son Dori Lal armed with country made pistols came from behind and intercepted them. In order to kill Roop Ram fired shot on Nek Ram, but he saved himself. He ran and entered in the house of Nek Ram, but both the accused chased him and then Dori Lal with the intention to kill fired shot which caused injury on his left arm. On their noise Maya Devi d/o Pearey Lal, Ram Murti d/o Lakhan Singh, Pearey Lal S/o. Bhoj Ram, Shivji S/o. Kallu and Todi cam there, saw the incident and challenged the accused persons who made their escape good. The complainant along with Nek Ram reached at the police station and lodged oral report, whereupon a case u/s. 307 IPC at crime No. 8/84 was registered and its investigation was entrusted to SI Satya Prakash Sharma. Injured Ganpat Singh was sent for medical examination through Constable Sadhoo Singh to PHC, Hasayan where Dr. Gajendra Singh examined him at 10:30 p.m. on 22.1.1984 and found the following injuries on his person:
"1. Abrasion with bruise 2" x 1" on the outer aspect of the upper third of the left fore arm. 1" below the elbow joint.
2. Gun shot wound of entry 1/4" x 1/6" x deep up to the muscles. No blackening and tattooing and charring is also present. Fresh bleeding is present on the left elbow joint at the outer aspect."
In the opinion of the doctor, the injuries were simple and fresh, caused by blunt object except No. 2 is due to fire arm. Advised x-ray of injury No. 2. Supplementary report to follow. Dr. V.D. Pathak on 24.1.1984 had conducted X-ray examination of left fore-arm and elbow joint, but did not find any bony injury.
3. SI Satya Prakash Sharma took up the investigation on 23.1.1984, recorded the statement of Constable Clerk Gurram Singh, complainant Ganpat Singh, witnesses Nek Ram, Maya Devi, Pearey Lal and others, visited the place of occurrence and prepared two site plans. After his transfer investigation was completed by SI Atar Singh, and he had submitted charge-sheet against the accused persons.
4. After committal of the case to the Court of Session, charge for the offence punishable u/s. 307/ 34 IPC was framed against the accused-appellants, who abjured the guilt and claimed trial.
5. In order to prove its case, the prosecution had examined complainant Ganpat Singh PW-1, Nek Ram PW-2, Pearey Lal PW-3, SI Atar Singh PW-4, Constable Gurum Singh PW-5, SI Satya Prakash Sharma PW-6, Dr. V.D. Pathak PW-7 and Dr. Gajendra Singh PW-8.
6. Both the accused in their separate statements u/s. 313 Cr.P.C. have again denied the entire prosecution story. Accused Roop Ram has further stated that Ganpat and Nek Ram have abducted him for which they were prosecuted and that''s why he has been falsely implicated. According to Dori Lal his nephew (bhanja) was kidnapped by Ganpat and Nek Ram and this is the reason of his false implication. However, the accused persons have not adduced any evidence in defence.
7. Appeal of appellant No. 1 Roop Ram stood abated on account of his death vide order dated 6.12.2013.
8. I have heard the learned counsel for the appellant, learned AGA for the State and perused the original record of the trial Court.
9. Learned counsel for the surviving appellant has vehemently argued that from the facts and the medical evidence available on record, the case against the appellant would not travel beyond the scope of Section 324 IPC. He has submitted that if prosecution story is believed as such, then it is found that the incident had taken place with out any premeditation, the 1st shot was made by co-accused Roop Ram on Nek Ram, he was not injured and no other shot was fired by this accused. However, they followed the complainant upto the house of Nek Ram where outside his house Roop Ram fired shot which injured Ganpat on his left fore-arm. On alarm, Maya Devi, Ram Murti, Pearey Lal, Shivji and Todi arrived there and on their challenge the accused persons made their escape good. The contention is that none of the witnesses were armed with any weapon, so the accused were frightened by their challenge is difficult to believe.
10. On scrutiny of oral evidence led in the case we find that complainant Ganpat PW-1 is also an injured witness, while Nek Ram PW-2 and Pearey Lal PW-3 are alleged eye witnesses. Enmity between the parties is not disputed over the case of kidnapping of daughter of Roop Ram''s nephew (bhanja) as also about a case u/s. 107/ 116 Cr.P.C. between the parties. The complainant sustained injuries at about 5:00 p.m., and then after covering a distance of about 6 Kilometers he had gone to police station and lodged his oral report at about 9:30 p.m. in the night. The doctor has medically examined the injured the same night at 10:30 p.m. and found an abrasion on upper 1/3rd of left fore arm and a gun shot wound of entry on left elbow joint at the outer aspect. The injury report Ex. Ka-7 has been proved by Dr. Gajendra Singh PW-8 and in his examination-in-chief itself he has stated that both the injuries were simple. However, x-ray of gun shot injury was advised, which was conducted by Dr. V.D. Pathak PW-7, but he did not find any bony injury in the x-ray examination, report whereof is Ex. Ka-6. None of the doctors examined in the case, has stated that the injuries of the complainant were fatal or dangerous to his life. Thus, by no stretch of imagination it can be said that the gun shot injury found on the person of the injured was sufficient in the ordinary course to cause death of the injured complainant.
11. The incident has been very well proved through the cogent and clear testimony of the injured and Nek Ram PW-2. Pearey Lal PW-3 has not supported the prosecution story in his deposition before the trial Court, but it would not cause any dent to the otherwise reliable and probable prosecution story, which finds full support from the medical evidence.
12. Now the next point for consideration is as to what offence has been proved against the accused-appellant. To justify a conviction under this section i.e. 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so faras the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. [Vide -
13. It is true that merely because the injuries are simple in nature, it cannot be said that the offence made out would not fall under Section 307 of Indian Penal Code. It would all depend upon the facts of a given case. Intention has to be seen.
14. In the case of
"We are of the view that having regard to the facts and circumstances of the present case and particularly in view of the fact that P.W. 6 and P.W. 7 were in the courtyard of their house when the appellant fired gun shots and he could not, therefore, have intended to injure them, the conviction of the appellant under Section 307, I.P.C. was not justified. We think that the conviction of the appellant could be maintained only under Section 324 of the I.P.C. since P.W. 6 and P.W. 7 received simple injuries. We accordingly allow the appeal and alter the conviction of the appellant to one under Section 324 of the IPC for causing simple injuries to P.W. 6 and P.W. 7 and since the appellant has already suffered imprisonment for about 16 months, we direct that the sentence imposed on the appellant be reduced to that already undergone by him and ha may be set at liberty forthwith."
15. In the case of
16. In the case of
17. The evidence on record show that although it was alleged that accused Dori Lal chased the complainant and then fired shot from the country made pistol, which caused gun shot wound on his left elbow but there was no repeat shot of fire-arm by any of the accused nor there was any intervening circumstances to do away with life of the injured. Thus, in view of the legal position noted above, in the opinion of the Court conviction of the appellant under Section 307/ 34 of the Indian Penal Code cannot be sustained but he is liable to be convicted for the offence punishable u/s. 324 IPC.
18. The last point for consideration is as to what would be the adequate and proper sentence, in the facts and circumstances of the case, which can be awarded to the surviving appellant Dori Lal. The record shows that he had given his age 24-years on 25.3.1987 when his statement u/s. 313 Cr.P.C. was recorded in the Court below, so now he must be aged about 52-years. The incident had taken place more than 30-years ago and the appeal is pending since 9.4.1987. No other criminal antecedents of the appellant Dori Lal have been reported. He is on bail under the orders of the Court in this appeal and had been in jail for about a month during the pendency of the case and the appeal. Thus, considering the period of agony of protracted trial and appeal, age, antecedents of the appellant and totality of other facts and circumstances, emanating from the record, as indicated here-in-above, in the opinion of the Court, it would be expedient in the interest of justice, if a lenient view in the matter of sentence is taken against the appellant, inasmuch as, no useful purpose would be served in sending him again to jail to serve out any period of imprisonment, which would certainly be less than what has been awarded to him for the offence punishable u/s. 307/ 34 IPC.
19. The appeal partly is allowed. The conviction of the appellant No. 2 for the offence punishable u/s. 307/ 34 IPC and sentence awarded to him are set aside. He is found guilty for the offence punishable u/s. 324 IPC and is sentenced to period of imprisonment already under gone by him with fine of Rs. 10,000/-, which should be positively paid within 6-weeks from today. In default of payment of fine, the appellant would serve simple imprisonment for three months. After realization of the fine, a sum of Rs. 5,000/- would be paid to the complainant as compensation u/s. 357 Cr.P.C. and in case he is no more, the same be paid to his legal representative.
20. Let copy of the judgment be transmitted to the Court concerned immediately for necessary compliance, which should be reported to the Court within 6-weeks.
