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2023 DIGILAW 968 (ALL)

Ram Kishun v. State of U. P.

2023-04-10

SHREE PRAKASH SINGH

body2023
JUDGMENT : SHREE PRAKASH SINGH, J. 1. Heard learned counsel for the appellants and Sri Aniruddh Kumar Singh, learned AGA-I for the State. 2. By means of the instant criminal appeal, the Judgment and order dated 7.6.2005 passed by the Additional Sessions Judge, Court No. 6, Unnao in Sessions Trial No. 178 of 2003, arising out of Case Crime No. 75 of 2002 relating to Police Station Achalganj, District Unnao has been assailed whereby the appellants have been convicted and sentenced under Section 307/34 I.P.C. for three years rigorous imprisonment with fine of Rs. 1,000/- each and in default of payment of fine, they had to undergo further six months additional rigorous imprisonment. 3. As per the version of the F.I.R. the appellants Ram Kishun and Suresh were armed with country made pistol and appellants Rajjan and and Pancham were aremed with Tabbal and lathi respectively. Pancham is alleged to have exhorted to kill upon which Ram Kishun and Suresh opened fire over the injured Ram Chandra as a result of which injured received injures over his cheeks and hands. 4. The occurrence said to be taken place at about 3.30 pm on 24.2.2002 and the First Information Report was lodged at about 4.25 pm on the same day under Section 307, 504 I.P.C. and, thereafter, charge sheet was filed under Sections 307, 324, 506 I.P.C. on 8.5.2002 and the Sessions Judge framed charges on 8.7.2003, under Section 307/34 I.P.C. against the appellants. 5. Prosecution produced prosecution witnesses, namely, PW-1 Deel Chandra (cousin brother of injured), PW-2 Sarjan (real brother of the injured), PW-3 IO Jang Bahadur Singh Sengar and PW-4 Dr. O.P. Srivastava. 6. 5. Prosecution produced prosecution witnesses, namely, PW-1 Deel Chandra (cousin brother of injured), PW-2 Sarjan (real brother of the injured), PW-3 IO Jang Bahadur Singh Sengar and PW-4 Dr. O.P. Srivastava. 6. Injuries, which were sustained by injured, are as follows: ^^1- vXus;kL= ds ?kqlus dk ?kko 4@4 lseh xq.kk ekalis'kh rd xgjkA nkfgus xky ij lw[kk ,oa tek [kwu ekStwn FkkA 2- pksV uEcj 2 dVk gqvk ?kko 2 lseh xq.kk 0-5 lseh xq.kk eka'kis'kh rd xgjkA cka;s gkFk dh vkf[kjh maxyh ds tM+ ij v/kj ry ij ¼xnsyh dh rjQ½ lw[kk ,oa tek [kwu ekStwn FkkA 3- dVk gqvk ?kko 2-5 lseh xq.kk 0-5 lseh xq.kk ekalis'kh rd xgjkA ck;sa gkFk dh vukfedk ds fupys fgLls ij xnsyh dh rjQ lw[kk ,oa tek gqvk [kwu ekStwn FkkA 4- dVk gqvk ?kko 2-5 lseh xq.kk 0-5 lseh xq.kk ekalis'kh rd xgjkA cka;s gkFk dh e/;ek maxyh ds fupys fgLls ij xnsyh dh rjQ lw[kk ,oa tek [kwu ekStwn FkkA** 7. Learned counsel for the appellants contends that as per the opinion of the doctor, who was examined as PW-4, injuries nos. 2, 3 and 4 are simple in nature and the injury no. 1, which was on cheek of the injured, was kept under observation and advised for X-ray. As per the X-ray plate produced before the trial court, no fracture was seen. He further argued that there are material discrepancies and doubt in the story of the prosecution as two persons are said to have opened fire over the injured but only one fire arm injury is present over the body of the injured namely, Ram Chandra and the prosecution failed to establish as to who had opened fire over the injured. He also submits that out of the two witnesses, one has stated that there was only one sound of firearm and the other stated that there were two sounds of firearm. Further two independent witnesses were named in the First Information Report but they were neither produced by the prosecution nor were examined and the injured person who died during the trial on 26.11.2002, could not be examined by the prosecution as prosecution witness. 8. Further two independent witnesses were named in the First Information Report but they were neither produced by the prosecution nor were examined and the injured person who died during the trial on 26.11.2002, could not be examined by the prosecution as prosecution witness. 8. Further submission of learned counsel for the appellants is that PW-1 and PW-2 are interested witnesses as they are cousin and real brother of the injured and the independent witnesses, who though named in the First Information Report but could not be produced before trial court for the reason well known to the prosecution. 9. Adding his arguments, he submits that injuries themselves are enough to show that there was no intention to kill the injured person as the injuries no. 1, 2 and 3 are simple in nature as per the Doctor who was examined as PW-4 before the trial court and so far as the injury no. 1 is concerned, there is no fracture and that is over the cheek of the injured. The prosecution has also failed to substantiate his case to put up in the ambit of Section 307 of I.P.C. 10. He next submits that no recovery of the country made pistol was done from the possession of the appellants and, hence, the prosecution has failed to prove its case beyond doubt. 11. Learned A.G.A. for the State contended that there is serious allegation against the appellants and, after thorough investigation, they were found involved in committing the offence and, thus, charge-sheet was filed and the charges were framed and, after thoroughly considering the evidence including the statements of the witnesses, the order has rightly been passed by the trial court. He next added that the injuries are caused with the firearm and firearm has been assigned to two accused persons and other two accused persons were assigned to be armed with tabbal and lathi. Injury report also supports the version of the prosecution and the Doctor, who was examined, has also affirmed the injuries caused with the firearm to the injured. He added that the witnesses are intact and the injured has sustained firearm injuries, whereby, the intention of the appellants is clear to kill the injured. 12. Injury report also supports the version of the prosecution and the Doctor, who was examined, has also affirmed the injuries caused with the firearm to the injured. He added that the witnesses are intact and the injured has sustained firearm injuries, whereby, the intention of the appellants is clear to kill the injured. 12. Considering the submissions of the learned counsel for the parties and after perusal of the record, it emerges that the appellants are said to be armed with deadly weapon like country made pistols and the injured has received firearm injuries. The statements of the witnesses are strong enough and cogent to substantiate that the appellants have committed the offence. 13. Further the statements of witnesses, namely, Duli Chandra and Sarjan appear to be credible and are also supported by the medical evidence. Further there is no major contradiction or infirmity in the statements of the witnesses and resultantly, the finding of the trial Court with respect to the offence of the appellants are based on evidence. 14. While this Court examines the findings of the trial court, it is apparent that the injury report does not indicate that the injuries are grievous in nature. There is no such medical evidence that these injuries were dangerous to life. The injuries were not on vital part and the facts and circumstances of the case do not indicate that the appellants-accused had intention to kill the deceased. The question arises for consideration is, whether the act of the appellants fall within the ambit of Section 307 of IPC. 15. The provisions of Section 307 of IPC reads as under: “307. Attempt to murder - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts - When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.” 16. Attempts by life convicts - When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.” 16. The first part of Section 307 refers to “an act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder.” The second part of Section 307, which carries a heavier punishment, refers to ‘hurt’ caused in pursuance of such an ‘act’. It may be stated that proof of grievous or life-threatening hurt is not a sine qua non for the offence under Section 307 of IPC. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent. 17. For the conviction under this section more importance has been given to mens rea or the intention than the actus reus or the actual act itself. The attempt should arise out of a specific intention or desire to murder the victim. The nature of the weapon used, the manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted is all taken into consideration to determine the intention. 18. In Kundan Singh vs. State of Punjab, AIR 1982 SC 2013 the Hon’ble Apex Court has observed as under: “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 PW-6 and PW-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 PW-6 and PW-7 received simple injuries. We think that the conviction of the appellant could be maintained only under Section 324 of the I.P.C. since PW-6 and PW-7 received simple injuries. We accordingly allow the appeal and alter the conviction of the appellant to one under Section 324 of the I.P.C. for causing simple injuries to PW-6 and PW-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 that he may be set at liberty forthwith.” 19. The Apex Court in Merambhai Punjabhai Khachar and Others vs. State of Gujarat, AIR 1996 SC 3236 wherein in an attempt to commit murder by fire-arm, victim has suffered a pallet injury, the Apex Court held that Section 307 I.P.C. cannot be held to have been satisfied and the conviction was altered to Section 324 of IPC. 20. In Ramesh vs. State of U.P. AIR 1992 SC 664 , wherein the injury was found on the back of the injured. Accused was tried along with two other was convicted under Section 307/34 I.P.C. and sentenced to undergo rigorous imprisonment for four years, while the two others were acquitted. The Apex Court altered from section 307 of IPC into Section 324 of I.P.C. and sentence was reduced to the period already undergone with fine of Rs. 3000/- which was to be paid to the complainant as compensation. 21. Having at a glance over the pronouncements aforesaid, it appears that the ingredients of Section 307 of IPC are not fully satisfied in the present case. It is a case where the injured has received a superflous injury over his cheek and as per the medical report, there was no fracture or deep wound and, therefore, the injries are not grevious in nature or dangerous to life. So far as the nature of injuries are concerned that indicates that the appellants-accused persons had no intention to kill the injured. Consequently, the conviction of accused persons-appellants under Section 307 IPC cannot sustain and appellants are liable to be convicted under Section 324 of IPC. 22. The incident is said to have taken place in the year 2002 and all the appellants, who are villagers and farmers, are said to be poor persons. Further, since last 20 years, no case has been registered against all the appellants. 22. The incident is said to have taken place in the year 2002 and all the appellants, who are villagers and farmers, are said to be poor persons. Further, since last 20 years, no case has been registered against all the appellants. The appellants and complainant belong to the same family and, now, they are residing peacefully. In such circumstances, sentencing the accused persons/appellants to a custodial sentence would not serve the ends of justice. 23. Resultantly, in view of the aforesaid submissions and discussions, conviction and sentence of the appellants under Section 307 IPC is converted to under Section 324 of IPC and the sentence is reduced to the period already undergone by them. 24. The appellants shall deposit an amount of Rs. 20,000/- as a fine and out of the total fine so deposited, an amount of Rs. 18,000/- shall be paid to the injured and in case of death of the injured, to his heirs as compensation. In default of payment of fine, the appellants shall undergo one year imprisonment. 25. The fine shall be deposited by the appellants before the trial court within two months from the date of this judgment. 26. The appeal is partly allowed in above terms. 27. The appellants are said to be on bail, therefore, their personal bonds are cancelled and the sureties are discharged. 28. The registry is directed to send a copy of this judgment forthwith to the trial court for necessary compliance.