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2022 DIGILAW 1242 (ALL)

Kehari v. State of U. P.

2022-08-05

KARUNESH SINGH PAWAR

body2022
JUDGMENT : 1. Heard Shri Anurag Shukla, Advocate holding brief of Shri Kunwar Bhadur Dixit, learned counsel for the appellant, Shri V.K. Singh Parmar, learned AGA for the State and perused the record. 2. Appeal with respect to appellant no. 3 has already been dismissed as abated vide order dated 13.11.2018. 3. This appeal has been field by the appellants Kehari and Hori Lal against the judgement and order dated 29.03.1984 passed by VI Additional Sessions Judge, Mainpuri, whereby the appellants have been convicted under section 307 read with 34 I.P.C. and have been sentenced to undergo 3 years rigorous imprisonment. 4. The prosecution story in brief is that on 05th December, 1980 at around 3 p.m., informant and his real brother Ramesh alongwith Mohan Lal resident of village Baroli, Kanuji Singh resident of Hamlet Baley Khet and Layik Singh of the village went towards the field at Nagla Swamy for cutting the mustard crop. A litigation between Mohan Lal and accused persons Badan and Hori Lal was pending with regard to the mustard field. On the field, accused Hori Lal, Kehari and Tulsi Ram were present, who were armed with the illegal weapon, they exhorted Mohan Lal, who was with the informant and said that ''today the case will be decided and your gang will be finished'. Accused Hori Lal, Kehari and Tulsi Ram who were armed with the country made pistol and pauniya (another form of country made pistol), with the intent to commit murder made indiscriminate firing, which resulted fire arm injury to brother Ramesh on his abdomen and left arm, who felt on the spot and somehow the informant and Mohan Lal were saved by the pellets. On hue and cry Ram Singh resident of Nagla Swami, Uma Shanker resident of Rustam Pur etc. came running with exhortation to the accused, on this, the accused persons ran away from the place of occurrence. Due to the serious condition of the brother Ramesh, he was got admitted in the District Hospital Mainpuri. 5. A written report regarding the incident was given by the informant which is Ext.-Ka-1. Consequently, a chik F.I.R. in Case Crime No. 252 of 1980, under section 307 I.P.C. was registered. The chik F.I.R. is Ext. Ka-5. The injury report of the injured Ramesh is Ext.-Ka-6. The Investigating Officer after conducting the investigation and taking statement, submitted charge-sheet, which is Ext.-Ka-4. Consequently, a chik F.I.R. in Case Crime No. 252 of 1980, under section 307 I.P.C. was registered. The chik F.I.R. is Ext. Ka-5. The injury report of the injured Ramesh is Ext.-Ka-6. The Investigating Officer after conducting the investigation and taking statement, submitted charge-sheet, which is Ext.-Ka-4. After committal charges were framed by the learned Sessions Judge vide order dated 21.08.1982 and the accused persons were charged under section 307 read with 34 I.P.C. 6. To bring home the charges the prosecution has examined P.W.-1 Suresh Chandra, brother of the injured, P.W.-2 Mohan Lal, eyewitness, P.W.-3 S.I. Sri Ameer Ulla, Investigating Officer and P.W.-4 Dr. S.C. Dubey, Medical Officer who examined the injuries of the injured. 7. Learned counsel for the appellants submits that cross case were lodged by both the sides. Appellants side have also been injured. The prosecution has not been able to prove it's case beyond reasonable doubt, in as much as the accused with intent to commit murder had fired on the injured. He further submits that injured has not been examined by the prosecution. 8. Per-contra, learned AGA has opposed and he has submitted that the presence of the accused is admitted in view of the cross version of the F.I.R. Prosecution has successfully examined the eyewitnesses P.W.-1 and P.W.-2 to show the complicity of the accused persons. As per the opinion of Dr. S.C. Dubey, the injury no. 4 was fatal which came to the accused. 9. Learned counsel for the appellants has further submitted that appeal is of the year 1984 and appellant no. 3 has already died, appellant no. 1 Hori Lal is 75 years old and appellant no. 2 Kehari is 80 years old, they do not have any criminal antecedents. Learned counsel for the appellants fairly submits that if the statement of the P.W.-1 and P.W.-2 who are only eyewitness of the prosecution, are considered, both eye witnesses have clearly stated that while they arrived at the field of Ram Sanehi, the accused persons armed with country made pistols fired at Mohan Lal P.W.-2, however, the shot came on the Ramesh the injured. The statement of P.W.-1 and P.W.-2 demolishes the prosecution case. 10. The statement of P.W.-1 and P.W.-2 demolishes the prosecution case. 10. So far as section 307 I.P.C. is concerned, as per the admitted case of the prosecution in view of the statement given by P.W.-1 and P.W.-2 there was no intention to commit murder of the injured Ramesh, who has not been examined. The shot was fired rather on P.W.-2 and not on the injured and he accidentally got injured as he was infront of P.W.-2. 11. Perusal of the statement of P.W.-1 Suresh Chandra shows that he and injured Ramesh going to their field alongwith them Mohan Lal P.W.-2 was also there and as soon they reached to the field of Ramsanehi, then accused Hori Lal, Tulsi and Kehari came, who were armed with country made pistol and they shot on Mohan Lal, however the shot came to Ramesh and he received pellet injuries in his abdomen, leg and hand. General role of assault by fire arm has been attributed by P.W.-1 to all of the accused persons. 12. P.W.-2 Mohan Lal, though has made out statement in as much as he assigned specific weapon to each of the accused persons. He assigned Pauniya to Hori Lal and Tulsi Ram and Tamancha to Kehari. However, he also made the same statement which has been made by P.W.-1 to the extent that accused persons fired on P.W.-2 Mohan Lal with intent to kill him, however the pellet did not came to P.W.-2 rather Ramesh was shot. 13. P.W.-4 Dr. S.C. Dubey had examined the injured, who sustained 6 injuries and out of 6 injuries, injury nos. 1 and 6 were pellet injuries. He opined that injuries would have came from the fire arm. He further opined that abrasion could have come from the pellets. He opined that injury no. 4 was fatal, as it was on vital part i.e. abdomen, however he further opined that there was no internal organ damage. 14. P.W.-3 the Investigating Officer was also examined before the trial court who had taken the blood stained cloths of the injured and prepared the recovery memo. He also proved the Ext.-Ka-5 chik F.I.R. He has prepared the site plan. 15. In view of the statements of P.W.-1 and P.W.-2, it is clear that the intention to commit murder was of P.W.-2 and not to the injured Ramesh. He also proved the Ext.-Ka-5 chik F.I.R. He has prepared the site plan. 15. In view of the statements of P.W.-1 and P.W.-2, it is clear that the intention to commit murder was of P.W.-2 and not to the injured Ramesh. The testimony of P.W. 1 and P.W.-2 further shows that there was no motive for the accused who have committed this crime. The presence of the accused is admitted at the place of occurrence. In view of the cross F.I.R. lodged by one Badan Singh father of the accused which is exhibited as Ext. Kha-5. 16. To bring home the charges under section 307 I.P.C., the crime is to be committed with an intention or knowledge and under such circumstances that, if a death is caused, the accused will be guilty of murder, but in this case, the prosecution as per it's own admitted case in view of the statements of P.W.-1 and P.W.-2 could not prove that accused persons had any such intent to commit murder of the injured Ramesh, neither it has been proved that they had knowledge in the given circumstances that by such act of the accused, the death of the injured would have been caused. However, the fact that there is eyewitness testimony regarding the incident, the presence of the accused is admitted and the injury report have been proved. 17. I am of the view that evidence adduced by the prosecution has not been established beyond doubt, that the offence committed by the appellants falls under section 307 I.P.C. rather in my opinion and considering the nature of the injuries, it amounts to an offence under section 324 I.P.C. as the Supreme Court in the case of Sarju Prasad Vs. State of Bihar, AIR 1965 SC 843 has held as under:- "In this state of the evidence we must hold that the prosecution has not established that the offence committed by the appellant falls squarely under Section 307, I. P. C. In our opinion, it amounts only to an offence under Section 324, I.P.C". 18. In the case of Ramesh Vs. 18. In the case of Ramesh Vs. State of U.P., AIR 1992 SC Page 664, where a single injury was found on the back of the injured, the appeal of accused-appellants who was tried along with two others was convicted u/s 307/34 IPC and sentenced to undergo rigorous imprisonment for four years, while the two others were acquitted, was partly allowed by the Apex Court. His conviction was altered into section 324 IPC and the sentence was reduced to the period already undergone with fine of Rs.3000/-, which was to be paid to the complainant as compensation. 19. In the case of Merambhai Punjabhai Khachar and others Vs. State of Gujarat : AIR 1996 SC Page 3236, there was an attempt to commit murder by fire arm and a pellet hit the victim, however, the Apex Court held that Section 307 IPC cannot be held to have been satisfied and the conviction was altered to Section 324 IPC. 20. So far as the injuries are concerned there is nothing on record to show that these injuries could be fatal for the injured or the injuries were caused by these injured persons with the intention to kill the injured. The conviction under section 307 read with 34 I.P.C. is unsustainable, however the appellants in view of the evidence on record are liable to be convicted for the offence under section 324 I.P.C. 21. Considering the fact that appellant no. 3 has died and appellant no. 1 is 75 years old and appellant no. 2 is 80 years old and the appeal is of the year 1984 and so also the fact that the appellants are first offender, hence, benefit of section 4 Probation of Offender Act can be given to the appellant Nos. 1 and 2. 22. Learned AGA, on the other hand, does not dispute the fact that the appellant nos. 1 & 2 are the first offender but he vehemently submitted that if the benefit of Section 4 of the Probation of Offenders Act be given to the appellant nos.1 & 2, some restrictions may be provided so that appellant nos. 1 & 2 may not repeat such a crime in future. 23. 1 & 2 are the first offender but he vehemently submitted that if the benefit of Section 4 of the Probation of Offenders Act be given to the appellant nos.1 & 2, some restrictions may be provided so that appellant nos. 1 & 2 may not repeat such a crime in future. 23. As to whether the appellants are entitled to get the benefit of Section 4 of the Probation of Offenders Act or not, I deem it appropriate to reproduce Section 4 of the Probation of Offenders Act, which reads as under:- "4. Power of court to release certain offenders on probation of good conduct.-(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned. 24. It is relevant to mention here that Section 360 Cr.P.C. also confers the powers on the Court to release the accused on probation for good conduct or after admonition. 25. For the reasons aforesaid, the appeal filed by the appellant no.1. Kehari and appellant no. 2. Hori Lal is partly allowed. 26. The conviction of appellant no. 1, namely, Kehari and appellant no. 2 Hori Lal under Section 307 read with Section 34 IPC and sentence awarded to them is set aside. However, both the appellants are found guilty for the offence punishable under Section 324 read with Section 34 IPC and are convicted thereunder. They shall get benefit of Section 4 of Probation of Offenders Act. 1, namely, Kehari and appellant no. 2 Hori Lal under Section 307 read with Section 34 IPC and sentence awarded to them is set aside. However, both the appellants are found guilty for the offence punishable under Section 324 read with Section 34 IPC and are convicted thereunder. They shall get benefit of Section 4 of Probation of Offenders Act. They shall file two bonds to the tune of Rs.20,000/- each coupled with personal bonds to the effect that they shall not commit any offence and shall be of good behaviour and shall maintain peace during the period of one year. If they are in breach of any of the conditions, they shall subject himself to undergo one year rigorous imprisonment. The bonds aforesaid shall be filed by the accused/appellant nos.1 and 2 within two months from the date of judgement. The time for submitting the bail bonds shall not be extended on any ground whatsoever. 27. Let a copy of this judgment along with original lower Court record be sent to the Court concerned for compliance forthwith.