Judgment : PW1 Uchchap Singh lodged an FIR against Kharak Singh and Bhagwat Singh on 10.05.1992, in Patwari Circle, Karmi, Bageshwar (the then District Almora), which was registered as case crime no. 01 of 1992, under Sections 323, 307, 504, 506 of IPC and under Section 27 of Arms Act. The incident allegedly took place on 09.05.1992, at 07:00 P.M. The distance between the police station concerned and the place of incident was 35 kms. and hence there appeared to be no delay in lodging the FIR. After the investigation, a charge-sheet was submitted against accused Kharak Singh and Bhagwat Singh for the offences punishable under Sections 307, 324, 504, 506 of IPC and Section 27 of the Arms Act. The case was committed to the Court of Sessions. When the trial began and prosecution opened it’s case, charge for the offences punishable under Sections 504, 506 of IPC and Section 307 of IPC read with Section 34 of IPC was framed against the accused persons. A separate charge under Section 27 of the Arms Act was also framed against accused Kharak Singh. Both the accused pleaded not guilty to the charges framed against them and claimed trial. 2) PW1 Uchchap Singh (informant), PW2 Bhupal Singh, PW3 Smt. Chandra Devi, PW4 Mohan Singh (Patwari), PW5 Surendra Mohan Sharma (Medical Officer) and PW6 Mohan Ram (Patwari) were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they said that they were falsely implicated in the case. No evidence was adduced in defence. After considering the evidence on record, learned trial court, i.e. Sessions Judge, Bageshwar, convicted accused Kharak Singh under Section 307 of IPC. The convict was sentenced to undergo rigorous imprisonment for five years alongwith a fine of Rs. 5,000/-, vide judgment and order dated 30.08.2001. Feeling aggrieved against the impugned judgment and order, present criminal appeal was filed by the accused-appellant. 3) Co-accused Bhagwat Singh was exonerated of the charges levelled against him. Accused Kharak Singh was also acquitted of the charges under Section 504, 506 of IPC. He was also exonerated of the charge under Section 27 of the Arms Act. 4) PW1, in his examination-in-chief, stated that he knew Kharak Singh and Bhagwat Singh before this incident, in as much as they were the co-villagers. Accused Kharak Singh was also acquitted of the charges under Section 504, 506 of IPC. He was also exonerated of the charge under Section 27 of the Arms Act. 4) PW1, in his examination-in-chief, stated that he knew Kharak Singh and Bhagwat Singh before this incident, in as much as they were the co-villagers. The incident took place on 09.05.1992, at 07:00 P.M. His sister-in-law Smt. Chandra Devi, nephew Meharban Singh and Harish Singh were going to fetch water. Accused Kharak Singh met them. Accused hurled abuses at them. PW1’s sister-in-law raised an alarm. PW1’s elder brother Bhupal Singh (PW2), who was working in the field, also reached there. Bhagwat Singh caught hold of Bhupal Singh. Kharak Singh went inside the house and fired upon Bhupal Singh with his licensed gun from the window of his house. Bhupal Singh sustained firearm injury in his right thigh. PW1 saw the incident from his house. PW1 also reached the place where injured Bhupal Singh and one Nandan Singh were present. Bhupal Singh fell on the ground. PW1 and others took him to Military Hospital, Ranikhet. On the following day, PW1 gave the report to the Naib Tehsildar. PW1 proved his complaint (Ext. Ka-1). PW1 stated that his elder brother was Bhupal Singh. He had two brothers and four sisters. They had assembled there at one place in connection with the marriage of his younger brother. Accused Kharak Singh was PW1’s cousin. No invitation card was given to the accused for attending the marriage. 5) In his cross-examination, PW1 stated, among other things, that the incident took place in abadi. Animals like, monkey and porcupine used to destroy the fruits and vegetables in the vicinity. No villager was possessed of licensed gun. When the incident took place, PW1 was at his residence. Chandra Devi, after fetching water, was going towards her house when abuses were hurled at her. PW1 admitted that the Patwari did not ask him to point out the place of incident. Patwari did not prepare site plan at his instance. He was the reporter, who gave his complaint to Naib Tehsildar, Bageshwar. He reached Bageshwar at 09:30 in the morning (on the next day). Although PW1 gave report to the Naib Tehsildar at 10:11 A.M. on the next day, but his report could be lodged only at 05:00 P.M. Water is supplied in his village by Jal Sansthan. He was the reporter, who gave his complaint to Naib Tehsildar, Bageshwar. He reached Bageshwar at 09:30 in the morning (on the next day). Although PW1 gave report to the Naib Tehsildar at 10:11 A.M. on the next day, but his report could be lodged only at 05:00 P.M. Water is supplied in his village by Jal Sansthan. Many a questions were asked in the cross-examination of PW1 regarding supply of water and payment of tax. When the incident took place, he alongwith his brother were at their houses. PW1’s house was situated at a distance of 25-30 feet from the place of incident. PW1’s mother resided in another house of theirs. Place of incident was visible from PW1’s house. He admitted that accused Kharak Singh used to refrain them from fetching water from his tap. When the incident took place, Bhupal Singh reached at the place of incident and thereafter PW1 reached there when he heard the sound of gunshot. PW1’s another brother Nandan Singh reached there simultaneously. Bhupal Singh fell on the ground. He fell unconscious. Injured was taken to the hospital with great difficulty. It was admitted that Kharak Singh had enmity over supply of water. PW1 also admitted that on account of this enmity, he was not given invitation card to attend the marriage. PW1 denied that Kharak Singh was assaulted by them and present case was set up by them in defence. It was also denied that injuries sustained by Bhupal Singh were not fatal. 6) PW2 Bhupal Singh was the injured-eyewitness. In his examination-in-chief, he supported the prosecution story. In short, he stated that on the fateful day when he was sitting in the house of his neighbour Dhan Singh, he heard the noise of his wife and children. They raised an alarm. PW2 reached there. He saw that Kharak Singh was hurling abuses at his wife and children. PW2 requested Kharak Singh not to hurl abuses at them, but he did not budge. Accused started using abusive language to PW2 as well. The dispute arose over supply of water. Bhagwat Singh caught hold of PW2 and took him to his courtyard. When Bhagwat Singh was taking PW2 to courtyard, Kharak Singh reached inside his house in the meanwhile. PW2 requested Kharak Singh not to hurl abuses at them, but he did not budge. Accused started using abusive language to PW2 as well. The dispute arose over supply of water. Bhagwat Singh caught hold of PW2 and took him to his courtyard. When Bhagwat Singh was taking PW2 to courtyard, Kharak Singh reached inside his house in the meanwhile. Kharak Singh fired upon PW2 with his licensed gun from inside the window of the house, as a consequence of which, PW2 sustained injuries on his right thigh. He fell on the ground and became unconscious. PW2 was taken to Ranikhet hospital, where he remained admitted for two months in connection with treatment of his wound. 7) PW2 stated in his cross-examination that he was sitting in the house of his neighbour Dhan Singh when he heard the alarm raised by his wife and children. Dhan Singh’s house was situated at a distance of 100 yards from the house of the accused. The field in which he worked before relaxing in the house of Dhan Singh was situated at a distance of 100 yards. Dhan Singh was Up Pradhan of the village. Many a questions were asked in the cross-examination of PW2. PW2 also stated that when he reached at the place of incident, his wife was coming after fetching water. Kharak Singh was standing in his courtyard. His wife was accompanied by her children. Bhagwat Singh did not abuse PW2. He caught hold of PW2 and took him to courtyard. After dropping PW2 in the courtyard, Bhagwat Singh went inside his house. PW2 sustained injuries in his thigh. He became unconscious. He regained consciousness on the next day at 10:00 A.M. He did not know as to what happened at the place of incident thereafter. Many a questions were also asked from PW2 in the cross-examination to confront his statements given to the I.O. under Section 161 of Cr.P.C. PW2 denied the suggestion of learned counsel for the defence that he did not sustain any injury of firearm. 8) Learned counsel for the appellant argued, among other things, that the gun was not sent to the Ballistic Expert. It was said to be a licensed gun. If PW2 was given first aid, then who conducted preliminary medical examination? The same was not clear on the record. 8) Learned counsel for the appellant argued, among other things, that the gun was not sent to the Ballistic Expert. It was said to be a licensed gun. If PW2 was given first aid, then who conducted preliminary medical examination? The same was not clear on the record. Learned counsel also contended that the seat of injury (of PW2) was not established. PW2 did not sustain injury on vital part. The motive to commit the crime was also assailed by learned counsel for the appellant. According to the learned counsel, there was no motive to commit the alleged crime. It is not a case of circumstantial evidence. The appellant went inside the house. It was not possible for the appellant to fire upon PW2, in as much as the appellant went inside the house. Bhagwat Singh, son of the appellant, could fire, and not the person, who went away. Bhagwat Singh has already been acquitted by learned court below. Where was the meeting of mind? Learned counsel further reiterated that it was a case of direct evidence and not circumstantial evidence. The son of the appellant caught hold of PW2 and if the appellant fired upon PW2, the son did not sustain any injury. 9) PW3 Smt. Chandra Devi was another eyewitness, who, in her examination-in-chief, fully supported prosecution story. She was the wife of injured PW2. She said that accused Kharak Singh used filthy language against her when she went to fetch water. She was accompanied by her minor children, namely, Meharban Singh and Harish. Bhagwat Singh caught hold of her husband (PW2) and took him to the courtyard. Thereafter, Kharak Singh went inside his house and fired upon PW2 from inside the window of his house. PW2 sustained injuries in his thigh and fell unconscious. PW3 said that she too fell unconscious (after witnessing the incident). In her cross-examination, PW3 stated that the accused persons were inimical to them over supply of water. PW3 used to bring water from the tap of Kharak Singh. She was coming after fetching water from the water source. Kharak Singh started abusing her. PW3’s husband was working in his field situated 10-15 yards from the place of incident. PW3 was present in the courtyard of Kharak Singh when the incident took place. When PW3 raised alarm, then her husband came. She was coming after fetching water from the water source. Kharak Singh started abusing her. PW3’s husband was working in his field situated 10-15 yards from the place of incident. PW3 was present in the courtyard of Kharak Singh when the incident took place. When PW3 raised alarm, then her husband came. An altercation took place between Kharak Singh and PW2 over supply of water. Such altercation ended after Kharak Singh fired upon PW2, who fired from the window of his house. Bhagwat Singh caught hold of PW2 and as soon as Kharak Singh fired upon him (PW2), Bhagwat Singh went towards his house. 10) PW4 was the Investigating Officer of the case, who conducted the investigation at some length. PW4 inspected the place of incident, prepared site plan, affected arrest of accused persons and prepared memos of their arrest. 11) PW6 concluded the investigation by filing charge-sheet against the accused persons. In his cross-examination, PW6 admitted that the gun was not sent to the Ballistic Expert for examination. 12) PW5 examined the injuries of PW2 in the Military Hospital, Ranikhet on 10.05.1992. The medico-legal report given by PW5 was as under: “1. No. JC-180764X Bhupal Singh of 12 Kumaon (on annual leave) has been brought to MI Room by his brother No. 14083717 Sep. Uchhap Singh of 3 Kumaon with the alleged history that Sub Bhupal Singh got involved in a scuffle on 09 May 92 in his village Pethi, PO Lohaghat and got gun shot wound on his Rt thigh. On Exam :- General Examination – The patient is well built conscious. Pallor pulse 84 / mt Bp –110/70 MM Hg Local Examination - Thigh Right Swelling One 7 cms oval lacerated wound on anteromedial side of right thigh.” 13) The incident allegedly started with the abuses hurled by Kharak Singh at the sister-in-law of PW1. As per FIR, Kharak Singh also assaulted the sister-in-law of PW1. On alarm being raised by PW1’s sister-in-law and nephews, PW2 Bhupal Singh came there. An altercation took place between PW2 and Kharak Singh. Bhagwat Singh caught hold of PW2. Kharak Singh went inside the house and fired upon PW2 from the window of his house with the intention of killing him. PW2 sustained injuries on his right thigh. PW1 also reached there. PW2 was admitted in Army Hospital, Ranikhet. Thus, as per Ext. Ka-1, Bhagwat Singh caught hold of PW2. Bhagwat Singh caught hold of PW2. Kharak Singh went inside the house and fired upon PW2 from the window of his house with the intention of killing him. PW2 sustained injuries on his right thigh. PW1 also reached there. PW2 was admitted in Army Hospital, Ranikhet. Thus, as per Ext. Ka-1, Bhagwat Singh caught hold of PW2. In the meanwhile, Kharak Singh went inside his house and fired upon PW2 with a gun. PW1, in his examination-in-chief, told the same. PW1 witnessed the incident from his house. He reached on the place of incident after witnessing the occurrence. Nothing substantial came in his cross-examination to help the accused-appellant. PW1 was specific in his statement that the place of incident was visible from his house. 14) PW2 played pivotal role in establishing prosecution story. PW2 was also specific in his examination-in-chief that Bhagwat Singh caught hold of him, took him to the courtyard and thereafter, Bhagwat Singh went inside his house. When Bhagwat Singh was taking PW2 towards the courtyard, by that time Kharak Singh has already reached inside his house. Kharak Singh directed his gun, through the window of the house, at PW2, fired upon him, as a result of which, PW2 sustained injuries on his right thigh. 15) Learned counsel for the appellant argued with vehemence that Kharak Singh had no role to play in the said incident. Learned counsel contended that once the quarrel with the sister-in-law of PW1 was over, Kharak Singh’s role faded into oblivion. It was Bhagwat Singh who took PW2 to the courtyard, went inside the house, and somebody fired upon PW2. Who was that person is not established by the prosecution? According to learned counsel, Bhagwat Singh might be the person, who went inside his house and fired upon PW2. According to learned counsel, Kharak Singh did not fire upon PW2 in any case. How could PW1 and PW2 see him from the courtyard? How could PW1 and PW2 see the appellant when he was inside his house? Learned counsel for the appellant contended that the assailant was not visible to PW1 and PW2. He also emphasised that since there was no prior meeting of minds, therefore, appellant could not be held guilty of the offence for which he was charged. No common intention was established to show that Bhagwat Singh and Kharak Singh had the intention to commit the alleged crime. He also emphasised that since there was no prior meeting of minds, therefore, appellant could not be held guilty of the offence for which he was charged. No common intention was established to show that Bhagwat Singh and Kharak Singh had the intention to commit the alleged crime. 16) This Court is unable to subscribe to such contention of learned counsel for the appellant. Any case is to be decided on the basis of evidence on record, and not on the basis of surmises and conjectures. Hon’ble Apex Court has held on so many occasions that the Presiding Judge has to look into the evidence from the point of view of a common prudent person. Would a common reasonable person believe such evidence, which was given by the prosecution? The evidence is not to be looked into from the point of view of ‘Doubting Thomases’. When the evidence led by the prosecution is looked into from the point of view of a reasonable prudent person, it is apparent that the incident took place in the following manner. First of all, an altercation took place over the supply of water. The said altercation was between the appellant Kharak Singh and sister-in-law of PW1. No sooner the same was about to subside, Bhagwat Singh caught hold of PW2, who was present on the spot and reached there after his (PW2’s) wife raised alarm. Bhagwat Singh took PW2 to the courtyard of his house. Bhagwat Singh, therefore, went inside his house. When Bhagwat Singh was about to disappear from the courtyard, appellant Kharak Singh reached inside his house and fired upon PW2 with his licensed gun. It cannot, therefore, be said that the incident took place in two distinctive phases. No doubt, the incident took place in two phases, but the incident was in continuation. Spontaneity of the incident was not broken. True, the appellant had altercation with sister-in-law of PW1 (and wife of PW2) over the supply of water. Bhagwat Singh, son of appellant Kharak Singh, was also standing there, who caught hold of PW2, took him to the courtyard and thereafter went inside his house. In the meantime, appellant Kharak Singh went inside his house and fired upon PW2 from the window, while remaining inside the house. No different interpretation could be given to such an incident. It cannot be said that someone else, and not the appellant, fired upon PW2. In the meantime, appellant Kharak Singh went inside his house and fired upon PW2 from the window, while remaining inside the house. No different interpretation could be given to such an incident. It cannot be said that someone else, and not the appellant, fired upon PW2. It cannot be said that Bhagwat Singh, when went inside his house, fired upon PW2. It is nobody’s case. Accused-appellant, nowhere in his statement, stated so. In other words, the theory propounded by the appellant during the course of arguments that it was his son Bhagwat Singh, who, when went inside his house, fired upon PW2, is not acceptable. This argument, perhaps, was advanced keeping in view the fact that Bhagwat Singh was exonerated by the trial court, and no Government Appeal was filed against his acquittal. The appellant could afford to raise such a plea during the course of arguments, in as much as, he knew that Bhagwat Singh is not going to be adversely affected by raising such contention. If the gun is directed at somebody from a window and the fire is shot, at least the person, who has been shot at, will be able to see the assailant. It was not a huge haveli. PW2 was standing in the courtyard and he was fired upon by the assailant from inside a window of his house. Assailant too was present in the courtyard. Infuriated assailant went inside the house and fired upon PW2 in a spur of moment. There is, therefore, no question of prior meeting of minds between the appellant and the co-accused, who has been already been acquitted. There is direct evidence against the appellant. He did not require aid of Section 34 of IPC for his conviction. Had Bhagwat Singh been convicted, he would have been convicted with the aid of Section 34 of IPC. It is on account of this reason that the appellant was convicted under Section 307 of IPC, without the aid of Section 34 of IPC. The theory that the son (Bhagwat Singh) could fire upon PW2 and not the person (i.e. appellant), who went away from the courtyard, is not acceptable. 17) Prosecution evidence was appropriately dealt with by the trial court in the impugned judgment and order. The theory that the son (Bhagwat Singh) could fire upon PW2 and not the person (i.e. appellant), who went away from the courtyard, is not acceptable. 17) Prosecution evidence was appropriately dealt with by the trial court in the impugned judgment and order. Learned trial court rightly came to the conclusion that the prosecution was able to prove the case against the accused-appellant beyond a shadow of reasonable doubt. 18) This Court has also assessed the prosecution evidence independently to come to the same conclusion as was arrived at by learned trial court. 19) Learned counsel for the appellant also submitted that injury sustained by PW2 was not on vital part. If the injury was so serious, then, why first aid was not given to PW2 before reaching Military Hospital, Ranikhet? A look at the injury report of PW2 would reveal that he sustained one 7 cms. oval lacerated wound on anteromedial side of right thigh. Learned counsel also submitted that the appellant was a septuagenarian and the sentence of five years’ rigorous imprisonment awarded to him by the court below was too harsh. Learned counsel prayed for reduction in the sentence. 20) Learned counsel also argued that motive to commit the crime was not established. It has come on record that there was an altercation between the parties over supply of water, which altercation culminated into the offence for which the appellant was charged. The incident undoubtedly took place instantaneously. It was in a spur of moment that such incident took place. Hon’ble Apex Court has observed in catena of decisions that where direct evidence is available, the question of motive fades into oblivion. It goes into back burner and, therefore, the appellant is not entitled to the benefit of such argument. No interference is called for in the impugned judgment and order passed by the court below, so far as the conviction of the accused-appellant Kharak Singh, under Section 307 of IPC, recorded by it is concerned. But, so far as quantum of sentence is concerned, this Court agrees with the contention of learned counsel for the appellant that the sentence awarded to the accused-appellant should be reduced. 21) Criminal appeal filed on behalf of accused-appellant Kharak Singh is partly allowed to the extent of reduction in the quantum of sentence, which was awarded to him by the Court below. 21) Criminal appeal filed on behalf of accused-appellant Kharak Singh is partly allowed to the extent of reduction in the quantum of sentence, which was awarded to him by the Court below. Whereas the conviction awarded to accused-appellant Kharak Singh under Section 307 of IPC is affirmed, the sentence awarded to him is modified to the extent that the convict shall undergo rigorous imprisonment for a period of three years alongwith a fine of Rs. 5,000/- in respect of offence punishable under Section 307 of IPC. In case of default of payment of fine, the convict shall further undergo rigorous imprisonment for six months. 22) Accused-appellant is on bail. His bail is cancelled. He shall surrender before the court below forthwith to serve out the sentence as modified by this Court. 23) Let a copy of this judgment alongwith the lower court records be sent to the Court below for compliance.