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Uttarakhand High Court · body

2005 DIGILAW 405 (UTT)

Saba Jodhpuri alias Jyoti Swarup Anand v. State

2005-09-15

J.C.S.RAWAT

body2005
JUDGEMENT 1. This criminal appeal arises out against the judgment and order dated 31-10-1986 passed by Sessions Judge, Pithoragarh In Sessions Trial No.8 of 1986 convicting the accused/appellant under Section 307 I.P.C. and sentencing him to undergo 3 years rigorous imprisonment. 2. Brief facts of the prosecution case are that the accused Baba Jodhpurl alias Jyoti Swarup Anand was a Manager in an Ashram known as 'Kallash Ashram' Suakot 10 kms In the east from Pithoragarh city. Laxmi Datt- complainant and Badrl Datt went to the temple situated In the Kallash Ashram on 9-4-1985. They reached there at about 11.00 A.M. After having his food and resting a while, Laxmi Datt went to the temple at about 12:30 P.M. for worship. In temple, he offered 10 paise and flower before the Idol. Seeing this, Baba Jodhpuri objected and said that you are a big Contractor do you not feel ashamed in offering only 10 paise. In reply, Laxmi Datt told that I have no change but a currency note of Rs. 100/- which he cannot offer. Laxmi Datt also told that if he wants money by cfferings, he should beg alms and not sit In the temple. This hurted the feeling of the accused and he said to Laxmi Datt that 'now you cannot go from this place'. He would shoot him by his gun. The accused/Baba Jodhpuri went to the hermitage and came with a gun from there. Laxml Datt apprehending the danger, ran away from there. When he could hardly reached 15-16 meters down the temple, the accused opened him fire and injured him. Laxmi Datt fell down on the ground due to gun shot injuries. The injured was brought to the police post Wadda with the assistance of Badri Datt. The policemen on duty at Wadda police post brought the injured on a truck to Pithoragarh kotwall. The injured prepared the written report EX.Ka.7 and lodged the same at Police Station Kotwall. The constable Clerk Sri Mohan Ram on the basis of the written report prepared Chick F.I.R. EX.Ka.5. A case was registered under Section 307 I.P.C. at Police Station, Kotwall against the accused Baba Jodhpuri vide G.D. Ex. Ka. 5. Thereafter, the injured Laxmi Datt was sent to the District Hospital for medical treatment. 3. Dr. The constable Clerk Sri Mohan Ram on the basis of the written report prepared Chick F.I.R. EX.Ka.5. A case was registered under Section 307 I.P.C. at Police Station, Kotwall against the accused Baba Jodhpuri vide G.D. Ex. Ka. 5. Thereafter, the injured Laxmi Datt was sent to the District Hospital for medical treatment. 3. Dr. R.P. Bhatt examined the Injured Laxmi Datt on the same day and found the following injuries on his person : 1. Lacerated wound size 2.2 cm x .8 cm. x scalp deep on left forehead 2 cm. above middle of left eye brow vertically placed bleeding present. No blackening, scorching, tattoning present. 2. Lacerated wound .7 cm. x .7 cm. x scalp deep 1.5 cm. Outer to injury no.1. Bleeding present no blackening, tattoning present. 3. Fire pallet circular wounds .25 cm. x .25 cm. x skin deep above and long side both of injury no. 1. 4. Fire pallet circular wound .25 x .25 cm. x skin on right face in an area of 6 x 6 cm. 5. Lacerated wound 2 x .2 cm. x skin on right face horizontally placed on right chink. 6. Contuded swelling on right sysmatic area or skin size 1.5 x 1.5 cm, red In colour and ovallsh in shape. No tattonlng and blackening present. 4. Dr. R. P. Bhatt prepared the injury report EX.Ka.2 and admitted the injured in the hospital. He opined that all injuries were fresh in nature. Injury no. 3 and 4 were caused by some firearm from a distance. He kept the injury no. 1 and 2 under observation and advised X-ray of head and face of anto pariteal and lateral aspect. Dr. Bhupal Singh held X-ray of head and neck and prepared X-ray plates Ex. 1 and Ex. 2. In X-ray report he found ten dense metallic radio opaque shadows in the anto pariteal aspect of the skull and ten dense metallic radio opaque shadow on the lateral aspect of the head. In his opinion the above metallic radio opaque shadows may be that of pallets. 5. The Investigating Officer submitted the chargesheet against the accused. The learned Sessions Judge framed the charge under Section 307 I.P.C. against the accused/appellant. The accused-appellant denied of the charge .levelled against him and claimed his trial. 6. The prosecution In order to support its cas'e, produced Dr. Bhupal Singh Bisht (P.W.1), Dr. 5. The Investigating Officer submitted the chargesheet against the accused. The learned Sessions Judge framed the charge under Section 307 I.P.C. against the accused/appellant. The accused-appellant denied of the charge .levelled against him and claimed his trial. 6. The prosecution In order to support its cas'e, produced Dr. Bhupal Singh Bisht (P.W.1), Dr. R.P. Bhatt (P.W.2), Constable Clerk Shrl Mohan Ram (P.W.3), Badri Datt (P.WA), Laxmi Dutt, Injured (P.W.5) and Sri Bir Singh (P.W.6). 7. The statement of the accused/appellant was recorded under Section 313 of the' Criminal Procedure Code and he denied the allegations made against him. The accused person did not adduce any evidence in his defence. 8. The learned trial court after appraisal of the evidence on record convicted the accused-appellant under Section 307 of 1.P.C. and sentenced him as indicated above. 9. Feeling aggrieved by the impugned judgment and order, the accused preferred the appeal before this Court. 10. Heard Sri Lokendra Dobhal, learned counsel for the appellant & Shri G. S. Sandhu, learned A.G.A. for the State and perused the record. 11. At. the outset it need to be mentioned that it is not disputed that the injured Laxmi Datt PW5 sustained injuries on the date of occurrence. The appellant . had 'admitted In his statement recorded under Section 313 Cr.P.C. before the trial court that Laxmi Datt PW5 reached Ashram with a bottle of liquor and he demanded from the appellant a glass to take the liquor. The appellant and the villagers' present at the spot prevented him from taking the liquor in the Ashram and the appellant turned him out from the Ashram. When Laxmi Datt PW5 went our of the Ashram and reached in the jungle, he sustained gun shot injuries by some unknown persons. The appellant was. falsely implicated because he did not allow to take the liquor in the Ashram and he turned him out. He felt hurt of it and therefore, he lodged the false report against the appellant. Apart this, the prosecution adduced the evidence of Dr. R.P. Bhatt PW2 who examined the injured Laxmi Datt PW5 on 09-04-1985 at 3:25 PM and he found the injuries as mentioned at para no. 6 of my judgment on his person. The Doctor has opined that all the injuries were fresh in nature and Injuries nos. 1 and 2 were kept under observation and he was advised for X-ray,. R.P. Bhatt PW2 who examined the injured Laxmi Datt PW5 on 09-04-1985 at 3:25 PM and he found the injuries as mentioned at para no. 6 of my judgment on his person. The Doctor has opined that all the injuries were fresh in nature and Injuries nos. 1 and 2 were kept under observation and he was advised for X-ray,. The X-ray was conducted by Dr. Bhupal Singh Bisht PW1 and he found the injuries as has been mentioned in para 7 of the judgment. Thereafter, Bhupal Singh Bisht PW 1 submitted his supplementary report on the basis of the X-ray report and he has opined that all the injuries were caused by some fire arm weapon from the distance. Medical Officer Dr. R.P. Bhatt PW-2 has also opined that the injuries on the person of the iniured mav be caused on 09-04-1985 at about 12:35 P.M. 12. Now, I have to consider whether the appellant Baba Jodhpuri was responsible for the injuries sustained by Laxmi Datt PW5, injured. Laxmi Datt PW5 has stated in his evidence as stated in para-2 of my judgment. The prosecution further produced PW4 Badri Datt as an eyewitness. He has stated that on the date of the incident he went alongwith Laxmi Datt PW5 to the Ashram of the appellant and they have reached there at about 11 :00 A.M. The appellant asked him to prepare food for him so he went inside the kitchen which was situated near the hermitage of the appellant. He started cooking food inside the kitchen. When he was cooking food, he heard the sound of gun fire. He came out and he saw that Laxmi Datt PW5 had sustained injuries on his face. During the examination in chief, he had stated that he could not see the assailant who caused the injuries on the injured. He had further stated that Laxmi Datt, injured, PW5 did not tell him the name of the assailant and he became so frightened that he took the injured and rushed to the police choki Wadda. This witness has stated In his statement recorded under Section 161 Cr.P.C. that he saw the Incident as well as the accused who caused injuries by the gun. This witness did not support the second part of the incident so he was declared hostile. This witness has stated In his statement recorded under Section 161 Cr.P.C. that he saw the Incident as well as the accused who caused injuries by the gun. This witness did not support the second part of the incident so he was declared hostile. Badri Datt PW4 has supported the prosecution to the extent that the incident took place and the injuries were sustained by the injured at the spot. Thus the presence of the witness at the spot as well as the presence of the Injured is proved by the evidence of both the witnesses. The appellant himself has admitted the presence of both the persons at the spot. The evidence of Badri Dutt PW4 is credible and cogent to the extent that the Injured and PW4 was present at the Ashram. He heard the sound of the fire and immediately he saw the Injured laying down on the ground from the Ashram. It is well settled that the evidence of hostile witnesses can also be relied to the extent it supports the prosecution version. Evidence of such witnesses cannot be treated to be washed of the record. It remains admissible in the trial and there is no legal bar to base the conviction on their testimony. The very object of taking evidence Is to discover the truth as far as It is humanly possible for the court to do so. The fact, therefore, that sound public policy requires that a party should not be permitted to malign his own witness, cannot and does not absolve the Court of its own high: duty of attempting to discover the truth. Even when a witness deposes In favour of the case of the party calling him, the court on a consideration of the evidence may either believe or disbelieve him. Even in such a case, the Court has power and duty of deciding whether or not to believe the witnesses. 13.It Shri Lokendra Dobhal, learned counsel for the defence contended that the place of incident as alleged by the prosecution was not visible from the place from where the Injured sustained firearm Injury. It was further contended that the injured Laxmi Dutt PW5 could not see the appellant to fire upon him. As such, the prosecution story was liable to be discarded and on this ground alone he is entitled to be acquitted. Learned A.G.A. refuted the contention. It was further contended that the injured Laxmi Dutt PW5 could not see the appellant to fire upon him. As such, the prosecution story was liable to be discarded and on this ground alone he is entitled to be acquitted. Learned A.G.A. refuted the contention. The learned Sessions Judge has made a local inspection of the site as to know whether the place from where the fire was shot upon the injured was visible or not and what was the distance in between two places. The Sessions Judge in his inspection note dated 26th October, 1986, which was prepared in presence of the parties has clearly indicated that the distance from the place where the accused alleged ,ito have opened fire and the place where the accused received injuries is about 62 paces. He had further indicated that the crow fly distance between the two places is about 25 yards. The learned counsel for the defence also drew the attention of the learned Sessions Judge at the spot that the place from where the appellant opened fire is not visible from the place where the injured sustained fire arm injuries due to the bushes created by the trees intervening In between these two places. Learned Sessions Judge after considering the said contention observed that the piants were standing on both sides of the 'gathera' (rivulet) and the Sessions Judge came down to the place where the injured alleged to have sustained the fire arm injuries and found that the place from where the accused alleged to have made fire on the. injured is visible through trees and bushes. He has further observed that any person standing at that place is quite visible and identifiable and the temple of Shiva was also visible to the Sessions Judge from that place. The learned counsel for the defence at that time pointed out to the learned Sessions Judge at the spot that there were pine trees standing in between alleged place which must have intervened the visibility between the two points. Learned Sessions Judge observed that the pine trees grow high up. The branches shoot off at the top of it. The trunk remains straight without its branches. Such stump of the pine tree was not sufficient to intervene the visibility in between the two spots. Learned Sessions Judge observed that the pine trees grow high up. The branches shoot off at the top of it. The trunk remains straight without its branches. Such stump of the pine tree was not sufficient to intervene the visibility in between the two spots. Inspection ,was made in presence of both the parties and inspection note was prepared by the learned Sessions Judge. The inspection note of the learned Sessions Judge had not been disputed by any party. The learned Sessions Judge has rightly held that the witness had stated that the injured received gun shot injuries which was hardly 15-16 meters down from the temple. He has rightly held that the distance given by the witness tallies with the distance which has been found correct in the inspection note. Thus, in view of the above discussion, I am of the view that the place where the accused has been fired upon the injured is quite visible from the place where he received gun shot Injuries. 14. Learned counsel for the defence further contended that there are major discrepancies and omissions in the evidence of Laxmi Datt PW5 and on that score the entire prosecution evidence is unreliable. The learned counsel for the defence further contended that he is entitled to get the benefit of doubt on that count alone. Learned A.G.A. refuted the contention. It is an admitted fact that Badrl Datt PW4 was in the Ashram. According to the prosecution case, Badri Datt pw4 came with the injured Laxmi Datt PW5 In the Ashram in the morning. He is also a friend of tile injured. Badri Datt PW4 had also admitted in his cross examination that he knew the appellant earlier. The appellant used to come to his shop and Badri Datt always used to offer sweets at his shop without any payment. He, has further stated that he provides the sweets only due to love and affection to the appellant. The appellant had also admitted in his statement recorded under Section 313 Cr. P.C. that Badri Datt was in the Ashram prior to the coming of Laxmi Datt, injured PW5. Thus, it is admitted fact at the time of incidence that both the witnesses were there. It is also a fact that Badri Datt PW4 had a good relation with the appellant as well as to the complainant. P.C. that Badri Datt was in the Ashram prior to the coming of Laxmi Datt, injured PW5. Thus, it is admitted fact at the time of incidence that both the witnesses were there. It is also a fact that Badri Datt PW4 had a good relation with the appellant as well as to the complainant. The discrepancies which have been pointed out In the deposition are minor discrepancies which, are bound to be in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. It is established position of law In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it. It is the duty of the Court to remove chaff from the grain. It has to disperse the suspicious cloud and dust out of the smear of dust as all these things clog the very truth. If the genesis of the incident is not disturbed by discrepancies, such discrepancies cannot be taken into account. As far as the genesis of the incident In the Instant case is concerned, the prosecution has proved its case beyond reasonable doubt. 15. It was pointed out that there are no eyewitnesses of the account except the injured. His testimony cannot be relied upon without the corroboration by an independent witness. The learned A.G.A. refuted the contention. It: is well settled principle of law that if an evidence of a single person is credible and trustworthy, there is no requirement in law to insist on plurality of witnesses. In the case at hand, the evidence of Laxmi Datt PW5 has been carefully analyzed by me and has been found credible. It cannot be pointed out as to how the evidence of Laxmi Datt PW5 suffers from any infirmity. The core of the evidence has to be seen by the court. Minor variations which tends have no effection the credibility of the evidence and it cannot be the basis to discard the prosecution evidence. The learned counsel for the defence made a lengthy cross exan1lnation before the court below and nothing can be elicited from the said cross examination by the defence. The testimony of the injured Is credible and cogent. 16. As has been pointed out earlier that Badrl Datt PW4 is known to the appellant as well as to the complainant. The learned counsel for the defence made a lengthy cross exan1lnation before the court below and nothing can be elicited from the said cross examination by the defence. The testimony of the injured Is credible and cogent. 16. As has been pointed out earlier that Badrl Datt PW4 is known to the appellant as well as to the complainant. When the witnesses relied or he is a friend of the complainant, his evidence cannot be discarded on this ground alone. There is no rule of law or prudence which requires that the evidence of a close friend must be discarded for the simple reason that he is the friend of the complainant. Laxmi Datt PW5 went to the temple to offer his prayer and the incident took place there. He had no ill will against the appellant till the incident took place. There seems no reason as to why he will falsely implicate the appellant. The injured must be interested to give his evidence so as to convict the appellant for his wrong doings and he, would not like to adopt a course by which some innocent person would be convicted in place of the real guilty of the offence. In such circumstances, it would not be just and proper to discard the prosecution evidence on the above score alone. 17. The learned counsel for the defence further contended that Injured Laxmi Datt PW5 lodged the report at the police station on the same day. He had admitted in the court during his deposition that Badri Dutt PW4 was present at the time of incident. He did not disclose the name of Badri Dutt PW4 in the F.I.R. Learned counsel for the defence further contended that non-mention of the name of Badri Dutt PW4 as witness in the F.I.R. creates a doubt about the prosecution version. The learned A.G.A. refuted the contention. Badri Dutt PW4 has stated as indicated in para-12 in my judgment. Laxmi Datt PW5 had stated during cross examination that he lodged the report and he could not mention the detail as he was injured. It is a prosecution case that the injured was taken to Wadda police choki and thereafter Wadda police choki men came to the police station by truck and the report was lodged. Thereafter the injured was taken to the hospital. It is a prosecution case that the injured was taken to Wadda police choki and thereafter Wadda police choki men came to the police station by truck and the report was lodged. Thereafter the injured was taken to the hospital. Thus the evidence of prosecution clearly reveals that the report was lodged prior to the examination of the injured in the hospital. It is a well settled position of law that each and every fact should not be mentioned in the F.I.R. It is not necessary that the names of witnesses must be incorporated in the F.I.R. In the instant case, Laxmi Datt PW5 has explained as to why he has not written the name of the person. It has been held in Bhagwan Singh another Vs. State of M.P. 2002 SCC (Cri) P/736 :- "13. We also do not find any substance in the submission of the learned counsel for the appellants that statement of Kiran (PW7) 'Should not be given any weight because her name is not mentioned in the F.I.R. There is no requirement of law for mentioning the names of all the witnesses in the F.I.R., the object of which is only to set the criminal law in motion. Kiran PW7 herself was injured and being the niece of Hari Ram (deceased), had no reason to involve innocent persons in the commission of the crime. Merely because PWs 7, 12 and 22 happen to be the relations of the deceased, cannot be made a ground to discard their evidence. In the circumstances of the case, the High Court has rightly found the aforesaid witnesses to be natural witnesses of the occurrence." In view of the above, the contention of the learned counsel for the appellant is not tenable. 18. It was further contended by the learned counsel for the defence that there is an inordinate delay in lodging the F.I.R. and It was further contended that the distance from the place of occurrence to Wadda police outpost Is about 1 km. and the distance from Wadda to police station kotwali is 10.5 kms. The Injured was brought on truck from Wadda to kotwali. The appellant was taken from the place of occurrence to the Wadda police choki on foot, i.e., at about 1 km. and the distance from Wadda to police station kotwali is 10.5 kms. The Injured was brought on truck from Wadda to kotwali. The appellant was taken from the place of occurrence to the Wadda police choki on foot, i.e., at about 1 km. It is to be kept in mind that the incident took place in hill area where the routes and the pathways are very narrow and uneven. The Injured Laxmi Datt PW5 was brought to Wadda police post by Badri Datt PW4 from the place of incident. It Is also pertinent to mention here that in the hill routes, the transportation facilities are very poor. The transport is not readily available on the routes. The injured was taken on truck from Wadda choki to the police station. He was alighted from truck in Salthan, which is also 1 km. away from the police station. The FIR was lodged in the kotwali at about 2:45 PM, As such, the above circumstances and the evidence sufficiently prove that the report was lodged promptly. There is no delay in lodging the F.I.R. The F.I.R. is also substantial piece of evidence. Lodging of the prompt F.I.R. inspire confidence that it was not the outcome of due consultation or deliberation. The F.I.R. is definitely a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the F.I.R. is to obtain the earliest information regarding the circumstances In which the crime was committed, including the names of the actual culprits and the parts played by them. In the instant case, there is no chance to creep in the danger of introducing a coloured version or exaggerated theory. 19. Learned counsel for the defence contended that the appellant had no motive to commit the offence and further contended that the prosecution had failed to prove the motive against the appellant. As such he is entitled to be acquitted. Learned A.G.A. refuted the contention. Laxml Datt PW5 had deposed that he reached at the temple and he offered his prayer and he also offered 10 paise. The appellant asked him that he is a big man and he had only offered 10 paise and should feel ashamed of it. The injured replied that he had no change and had a currency note of Rs. Laxml Datt PW5 had deposed that he reached at the temple and he offered his prayer and he also offered 10 paise. The appellant asked him that he is a big man and he had only offered 10 paise and should feel ashamed of it. The injured replied that he had no change and had a currency note of Rs. 100/- which he cannot offer in such offerings. The injured said to the appellant if he is asking money in such a way, he should not sit in the temple and he should go outside and should beg alms from the public. This hurted the feelings of the appellant and the appellant said to him that he could move from there and he would kill him by the gun. The prosecution has sufficiently proved the motive in this case. It is also well settled principle of law that if the evidence of witness is reliable, satisfactory and convincing, then even the absence of motive becomes irrelevant for the decision of the case. It is also well settled the establishment of motives is not sine quo non for proving the prosecution case. It was held in Yunud Vs. State of M.P. SCC 2003 (1) p/429:- "The prosecution in the present case has failed to prove the motive. Failure to prove motive for crime in our view is of no consequence. The role of the accused persons in the crime stands clearly established. The ocular evidence is very clear and convincing in this case. The illegal acts of the .accused persons have resulted in the death of a young boy of 18 yedrs. It is also well settled law that establishment of motive is not sine quo non for proving the prosecution case. " 20. Learned counsel for the defence further pointed out that the recovery of the gun was made from the hermitage of the appellant and it was not sealed at the spot and as such, the recovery cannot be acted upon and the entire prosecution case becomes doubtful. It was further pointed out that ho Fard witness was examined before the trial court. The accused is the licenses of the gun EX.3. The Investigating Officer-Bir Singh PW6 had proved the recovery of the said gun on the same day when the incident took place. The Investigating Officer prepared the Fard EX.Ka-6. In an answer to the question no. It was further pointed out that ho Fard witness was examined before the trial court. The accused is the licenses of the gun EX.3. The Investigating Officer-Bir Singh PW6 had proved the recovery of the said gun on the same day when the incident took place. The Investigating Officer prepared the Fard EX.Ka-6. In an answer to the question no. 16 recorded under section 313 Cr.P.C. the appellant had admitted that the gun Ex.-3 was recovered from him and he had also admitted that the explosive were also recovered from him. The statement of Investigating Officer with regard to the recovery of the said gun is cogent and credible and the recovery has also been admitted by the accused. 21. Learned counsel for the defence further contended that the said recovery of the gun EX.3 was not sent for the ballastic expert for examination. He has further contended that the pallets and explosive substance recovered from the possession of the appellant were not produced before the court. The learned A.G.A. refuted the contentions and contended that there may be some lapses on the part of the Investigating Officer. If the evidence of the prosecution is Credible and cogent, then such remissions made by the Investigating Officer cannot be taken into account. It was further contended that the I.O. did not find any blood stained at the spot. If there were no blood spot it lead to take the inference that the injured Laxmi Datt PW5 had not sustained the injury at the spot and the entire prosecution story become unreliable. The learned A.G.A. refuted the contention. The learned Sessions Judge had correctly held that the, evidence of PW2 Dr. R. P. Bhatt revealed that the seat of injury was not of such kind that blood would have been oozing profusely from his injuries and It would have been dropped at the spot. Even 'if it was not collected by the I.O., it is remissness on the part. of the I.O. The ocular testimony with regard to the incident is cogent and credible. It is well settled principle of law that even if the Investigation is defective that pales into insignificance when ocular testimony is found credible and cogent. In the case of defective investigation the Court has to be circumspect in evaluating the evidence. of the I.O. The ocular testimony with regard to the incident is cogent and credible. It is well settled principle of law that even if the Investigation is defective that pales into insignificance when ocular testimony is found credible and cogent. In the case of defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so Would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. 22. In Dhanaj Singh @ Shera and others Vs. State of Punjab 2004 (3) SCC P-654, it was observed by the Hon'ble Supreme Court that in the instant case, the High Court found several disturbing features which indicated how the investigating officer had made out a new case to save the accused persons and to implicate the complainant party. Hence, the High Court analyzed the evidence of the eye witnesses with due care and caution. On finding the said evidence to be credible, the High Court upheld the conviction recorded by the trial court. Before the Hon'ble Supreme Court, the accused appellants challenged the conviction on the grounds (1) that the police after thorough investigation had concluded that it was the complainant party which caused the death of the deceased (if) that the pellets, wads and cartridges were not recovered from the spot, (iii) that the weapons of assault and the pellets were not sent for ballistic examination, (iv) that the blood stained earth was not sent for chemical examination (v) that many persons who could have thrown light on the incident had not been examined, and (vi) that the evidence being that of highly interested and inimical persons, should have been discarded. Dismissing the appeal, it was held by the Apex Court that even if the investigation is defective, that pales into Insignificance when ocular testimony is found credible and cogent. In the case of a defective Investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect. To do so would tantamount to playing into the hands of the investigating officer If the investigation designedly defective. 23. It has been held in Chhotu Vs. But it would not be right in acquitting an accused person solely on account of the defect. To do so would tantamount to playing into the hands of the investigating officer If the investigation designedly defective. 23. It has been held in Chhotu Vs. State of Maharashtra 1997 CRI.L.J. 4394 (SC) :_ "That necessarily means that all of them were the most natural and probable witnesses to an incident that then took place near his house, notwithstanding the fact that they were not residents of that locality. It also requires to be mentioned here that if the Investigating Officer failed to seize the bloodstained clothes of PW 3 and 8 and to promptly examine PW3, whose names as any eye witness was disclosed immediately after the incident, it only indicates remissness on his part but the evidence of PW3 and 8 was not in any way impaired thereby. 24. The Apex Court has, While maintaining the conviction of the appellant in Karner Singh Vs. State of M.P. 1995 CRI. L.J. 4173, observed :_ "Notwithstanding Our unhappiness regarding the nature of investigation, have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In case of defective investigation the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. Any Investigating Officer, in fairness to the prosecutrix as well as the accused, would have recorded .the statements of the two witnesses and would have drawn up a proper seizure-memo' in regard to the Chaddi. That is the reason why we have said the investigation was slipshod and defective. 25. The appellant had stated in his statement recorded under Section 313 Cr.P.C. that the injured reached in the Ashram with a liquor bottle. He asked for a glass for taking the liquor. The appellant reprimanded him and turned him out from there. When Laxml Datt PW5 left the campus of the Ashram, he sustained gun injuries in the jungle by some unknown person. Appellant further stated that he had been implicated on the basis of suspicion and malice. He asked for a glass for taking the liquor. The appellant reprimanded him and turned him out from there. When Laxml Datt PW5 left the campus of the Ashram, he sustained gun injuries in the jungle by some unknown person. Appellant further stated that he had been implicated on the basis of suspicion and malice. If the appellant had a bottle of liquor in his hand, the bottle would have fallen down on the place where he sustained injuries and it would have broken into pieces. The appellant could have pointed It out. to the I.O. on the same day at the time of his arrest and It could have been recovered by the Investigating Officer. The Investigating Officer also visited the spot on the same day and he had not collected any such evidence from the spot. It Is pertinent to mention here that the defence has taken a specific case that he brought the bottle of liquor alongwith him whereas he had taken a case In the cross examination that some Beni Ram was sent to bring the liquor from the market and he brought the liquor. The defence has not stated this fact during his statement recorded under Section 313 Cr.P.C. Thus, the defence is taking different pleas at different stages. The defence version is not credible. 26. In view of the above discussion, it is revealed that the injured sustained injuries on 09-04-1985 at about 12:30 PM in the Ashram. The said gun by which the injuries alleged to have been caused was recovered from the possession of the appellant on 09-04-1985. The appellant had admitted in his statement recorded under Section 313 Cr.P.C. that his gun EX.3 was recovered by the Investigating Officer from the possession on the date of Incident, The Investigating Officer prepared the Fard baramdigi of the gun which is Ex. Ka-6 In presence of the witnesses. It is also alleged that one of the witnesses was the soh of the appellant. The appellant has admitted that the gun was recovered land the recovery memo was prepared. There Is a specific recital in EX.Ka-6 that the said gun was recovered and the smell of the gun powder was found by the I.O. coming from the barrel of the gun which is seized from the possession of the appellant. The genuineness of the recovery memo has been admitted by the defence. There Is a specific recital in EX.Ka-6 that the said gun was recovered and the smell of the gun powder was found by the I.O. coming from the barrel of the gun which is seized from the possession of the appellant. The genuineness of the recovery memo has been admitted by the defence. It is the prosecution case that the smell of the gun powder was present at the time of the recovery by which it Is established that the gun was used on 09-04-1985. The recovery of the gun and the smell of the gun powder in the barrel, reveals that the gun was used for the commission of the alleged offence. The defence had not put any question to any of the prosecution witnesses. As a matter of fact, there is no cross examination by the defence on that point. The fact further reveals that the said gun, which was recovered from the possession of the appellant, was also used on the date of Incident. It further corroborates the participation of the appellant in the commission of the offence. 27. In view of the above discussion, I am of the view that the prosecution has proved Its case beyond reasonable doubt that the appellant was the author of the Injuries sustained by the injured Laxmi Datt on the date of Incident. 28. Learned counsel for the defence further contended that Dr. R.P. Bhatt PW2 who had examined the Injured had given his opinion that injuries were not dangerous to life. Learned counsel for the appellant had further argued that the nature of injuries were simple which is alleged to have been committed by the appellant. This offence of causing simple hurt by some explosive substance is punishable under Section 324 I.P.C. The offence punishable under Section 307 is not made against the appellant. Learned A.G.A. refuted the contention. He contended that the doctor had opined that all the injuries were caused by fire arm It was further contended that all injuries were sustained by the injured in the area extending from neck to head which are vital part of the body. Learned A.G.A. has also contended that the prosecution has to simply prove that the intention; was to cause death while he fired upon the Injured. Learned A.G.A. has also contended that the prosecution has to simply prove that the intention; was to cause death while he fired upon the Injured. To constitute the offence under Section 307 I.P.C., two ingredients of the offence must be present :- a. an intention of or knowledge relating to commission of murder, and b. the doing of an act towards it. For the purpose of Section 307 what is material is the intention of or the knowledge and not the consequence of the actual act done for the purpose of carrying out the Intention. The Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence "of attempt to murder'. Intent which is a state of mind cannot be proved by precise direct evidence; as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstance In which the incident took place. On the perusal of the evidence on record, it is revealed that the injuries were simple. It is also clear that the injuries were above the neck and on the face and head of the injured. It is also stated by the Doctor that the injuries were simple. The prosecution had also proved that the gun shot injuries were made and the injured fell down at the spot. Thereafter, Badri Bhatt PW4 reached at the spot and he took him to police Choki. If the intention of the accused would have been to cause the murder of the injured, he would definitely fired another shot on the injured because the injured was in helpless condition being falling down on the ground by the first shot. The appellant had sufficient opportunity to kill him at the spot. He did not fire upon the injured when he had fallen down on the ground It is not the prosecution case that somebody snatched the gun from the appellant. The appellant had sufficient opportunity to kill him at the spot. He did not fire upon the injured when he had fallen down on the ground It is not the prosecution case that somebody snatched the gun from the appellant. It is not the case of the prosecution that the appellant was again trying to fire upon the injured and the witnesses snatched the fire arm. In view of the above, the intention to kill the appellant cannot be gathered. The weapon used in the said offence is the fire arm which may be said as a deadly weapon. 29. Keeping in view of the above circumstances, I am of the view that this case does not fall within the ambit of 307 I.P.C. but it falls under section 324 I.P.C. Considering 'the age and circumstance of the case in which the offence was committed, I feel that the sentence of 4 months rigorous imprisonment will be sufficient to meet the ends of justice. 30. Thus, the appear is partly allowed. The conviction order passed by the learned Sessions Judge under section 307 I.P.C. is modified to the extent that the appellant is convicted under section 324 I.P.C. instead of under section 307 I.P.C. The sentence of three years R.L against the appellant awarded by the learned Sessions Judge under section 307 I.P.C. is modified to the extent that he shall undergo for a period of four months under section 324 I.P.C. instead of three years. The learned trial court is directed to take the appellant in custody to serve the sentence of 4 months. 31. Let the copy of the judgment alongwith record of the case be immediately sent back to the court concerned for needful compliance under intimation to this Court within four months positively.