Raja Ram And Others (At: 11:00 ... vs State Of U.P.
2013 Latest Caselaw 7002 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
A.F.R.
 

 
Case :- CRIMINAL APPEAL No. - 907 of 2006
 

 
Appellant :- Raja Ram And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Arun Kumar Tripathi,Hemant Kumar Misra,Rajiva Dubey
 
Counsel for Respondent :- Govt.Advocate,Pawan Kumar Tiwari
 

 
And :
 

 
Case :- CRIMINAL REVISION No. - 273 of 2006
 

 
Revisionist :- Suresh Narayan Pandey
 
Opposite Party :- State Of U.P.& 3 Ors.
 
Counsel for Revisionist :- Pawan Kumar Tiwari
 
Counsel for Opposite Party :- Govt.Advocate,Rajiva Dubey
 

 

 
Hon'ble Zaki Ullah Khan,J.

1. The instant appeal has been preferred on behalf of the appellants against the judgment and order dated 25.4.2006 passed by learned Additional Sessions Judge, Fast Track Court -II, Pratapgarh, in Sessions Trial No.105 of 2003, convicting each appellants with three years' rigorous imprisonment under Section 308 I.P.C. read with Section 34 I.P.C. along with a fine of Rs.1000/- and in default of payment of fine, further additional six months imprisonment. The appellants have also been convicted under Section 332 I.P.C. read with Section 34 I.P.C., with imprisonment of two years and with a fine of Rs.500/- each and in default of payment of fine, with further imprisonment of three months each. The appellants have also been sentenced under Section 353 IPC for imprisonment of one year each with fine of Rs.500 and in default of payment of fine further imprisonment of three months each. In S.T. No.106/2003, the appellants have also been sentenced to undergo six months R.I., under Section 323 read with Section 34 IPC. The Court has also directed that the sentence awarded in both the sessions trial, shall run concurrently. In both the sessions trial, the appellants have been acquitted of the charges under Section 307/34 IPC.

2. The complainant Suresh Narain Pandey has also preferred a revision against the impugned judgment and order by which learned lower court convicted the appellants, and the appeal has been preferred. By instant revision, the revisionist has prayed that the punishment awarded to the appellants be enhanced as the case is made out under Section 307/34 I.P.C. and not under Section 308 I.P.C. as held by lower court. The revisionist has also prayed that the appellants be also punished under Section 325 I.P.C. in S.T. No.106 of 2003 instead of Section 323/34 I.P.C as they inflicted injury by causing fracture. Since both the appeals and revision arose out of single judgment and order dated 25.4.206, these are being taken up for decision simultaneously by a single judgment. A copy of the order passed be placed in the accompanied revision.

3. The police has submitted charge sheet in both the Crime Nos.211 of 2000 and 212 of 2000 respectively and the Magistrate after taking cognizance committed both these cases for trial before the court of sessions and after trial, the cases have been numbered as S.T. No.105 of 2003 relating to Crime No.2011 of 2000 and another case has been numbered as S.T. No.106 of 2003 relating to Crime No.212 of 2000. These cases were tried by the court simultaneously and decided by single judgment and order against which the instant appeal has been preferred by the appellants and revision has been preferred by the complainant for enhancement the sentence.

4. As per prosecution case, in S.T. No.105/2003 (State Vs. Raja Ram and others), the complainant Ram Chandra Yadav, a Constable No.190 of P.S. Antu submitted a written application Ext. Ka-1, on 4.12.2000 mentioning that on 3.12.2000, he was on regular beat duty along with Constable Jamuna Prasad Yadav. They started their beat for security of Bank from midnight; that on 4.12.2000 at about 8.30 a.m., one person came running to them and narrated that a scuffle is going on at village Chauboli; that both the constables immediately rushed for handling the situation; that immediately after reaching near Village Chauboli, they heard a sound of gun fire and they saw that Raja Ram and Vijay Prakash alias Lalloo holding lathi in their hands and Ajai of hamlet Gobari, holding country made gun were beating Suresh Narain Pandey and his son Akhilesh; that thereafter constables challenged them and then Ajai ran away along with his country made gun in his hand; that when Ajai noticed that he has been followed by police constables, he fired from his gun; that the complainant Constable tried to save him by bending down but Rajaram and his son Vijay Prakash attacked him with lathi but the complainant constable with the help of his companion managed to catch hold of Vijay Prakash and Raja Ram and escorted them to police station. On the basis of written report of the constable Ram Chandra Yadav, crime was registered as case crime No.211/2000 under Section 323, 332, 353, 307, 308 IPC read with Section 34 IPC, vide Chik F.I.R. Ext. Ka-4.

5. Suresh Narain Pandey is the complainant of S.T. No.106/2003 under Section 307/34, 323/34 IPC, who was beaten up by these accused persons. He has also submitted application Ext. Ka-3 at police station Antu on 4.12.2000 at about 8.30 a.m. He has alleged that after discharging morning habits he came to wash off his hands at hand pump, there he noticed that Raja Ram son of Ram Gopal, Vijay and Ajai of hamlet Gobari village Chauboli started beating his son by dragging him from road side ; that these persons attacked his son while he was going to board the bus at the Bus Station; that motive was that they lost a case and to take revenge they laid hands on him; that on hearing his screams, the complainant rushed towards the scene and noticed that Raja Ram, Vijay Prakash were holding lathi in their hands and Ajai was holding country made gun; that Ajai immediately fired at Akhilesh with intention to kill but he escaped the bullet, meanwhile remaining two persons Raja Ram and Vijay Prakash started attacking him with lathis on his head, the complainant's son collapsed; that when complainant tried to intervene, he was also beaten up and suffered injuries; that the complainant in his self defence tried to save him by snatching lathi from Raja Ram ; that hearing the gun fire, number of persons assembled on the spot and in the meanwhile, police constable of police station Antu reached the spot and tried to overpower Ajai, who was holding gun; the constables followed him and in order to save him, Ajai fired on them also and the other two made strike with lathis on the constables; that due to timely help of the constables and by using saving tactics by the constables, the complainant and his son and one constable escaped unhurt of bullet. The incident was witnessed by Rama Kant Pandey, Sanjai Kumar and others; that on the basis of written report Ext. Ka-3, crime No.212/2000 was registered under Section 307/323 IPC Ext. Ka-10 was registered and the G.D. Ext. Ka-11 was prepared on the basis of the FIR.

6. The investigating officer conducted investigation in both case crime no.211/2000 and 212/2000 respectively and prepared site plan Ext. Ka-7 and Ka-13 respectively. Chargesheet Ext. Ka-9 was presented in case crime No.211/2000 whereas, chargsheet Ext. Ka-14 was submitted in case crime no.212/2000.

7. The charges were framed in both the sessions trial. In both the sessions trials, the place of occurrence was same, the accused persons were same but there were two sets of complaints. In first sessions trial, the complainant was the police constable and in the second sessions trial, the complainant was Suresh Narain Pandey. Initially, accused causing blows with lathi and country made gun to Suresh Narain Pandey and his son, they fired shot and after hearing the shot, the beat duty constable came and they have also been fired. That is why, two separate cases were registered in separate crime numbers.

8. The prosecution has examined constable P.W.1 Ram Chandra Yadav, Constable No.190 to prove its case that he along with other constable was on beat duty on 03.12.2000 and the next morning when they were passing from nearby, he was informed that scuffle is going on in the village and when he reached the spot, he heard gun fire and the witness corroborated written report and proved his written report Ext. Ka.1. Constable P.W.1 stated that he was medically examined at Sandwa Chandrika P.H.C. and narrated that the accused persons created hindrance in performing of the official duty. Subsequently, the prosecution examined Akhilesh Kumar Pandey, the injured, who was beaten up. The witness corroborated the fact that on 7.30 a.m. he was going to board the bus and as soon as he reached near the main road, the appellants, because of old enmity, attacked him. Appellants-Raja Ram, Vijay Prakash were holding lathis whereas Ajay holding country made gun. They dragged him and started beating him at road. On his alarm, when his father ran for rescue, appellants Ajay Prakash immediately fired on him with intention to kill. However, he escaped unhurt and in the meanwhile number of persons assembled at the place of occurrence and the constables who were on beat duty also reached at the spot. The witnesses narrated that his father snatched the lathi from Raja Ram and used at in defence. Both the constables chased the appellant Ajay but Ajay with intention to kill the constables fired shots on them but the bullet missed the target. Meanwhile the appellants Raja Ram and Vijay Praksh started beating him with lathi but with the help of other constable he managed to catch hold Raja Ram and Vijay while Ajay managed to flee from the place of occurrence. The third witness P.W.3 Suresh Narain Pandey who is the complainant in S.T. No.106/2003 and also father of the injured Akhilesh Pandey narrated and corroborated the version of written report Ext. Ka.3 on the basis of which Crime No.212/2000 was registered. P.W.4 is the Investigating Officer who has submitted the charge sheet. P.W. 6 is Dr.Anand Kumar who has examined the injureds. He has examined the injured Akhilesh Pandey on 4.12.2000 and found two lacerated wound and contusion and submitted opinion that the injuries were caused by blunt object. He has also examined the father of the complainant who was having two lacerated wounds and one contusion and two abrasions. All the injuries were simple in nature. The injured constable was also examined at 10.10 a.m by P.W.6. Two lacerated wounds and two abrasions were found on his body. During examination all the three injured. P.W. 6 has mentioned that Injury No.3 of Akhilesh Kumar Pandey was grievous and he referred him for X-ray. During X-ray examination P.W.5 radiologist found that there was no fracture in the sculp but little finger of the hand was found fractured. X-ray report is Ext.Ka-16. No grievous injuries were found on the body of constable Ram Chandra Yadav.

9. Learned trial court after hearing both the parties and after going through the record convicted the appellants under the aforesaid sections and aggrieved by this order, the instant appeal has been preferred.

10. Learned counsel for the appellants argued that at present all the appellants are in jail. The bail was cancelled by this Court vide order dated 18.4.2012. During trial also the appellants remained in jail for about three months. The appellants have already undergone one year and eight months in jail and in view of the injuries recorded by the lower court they may be released on the basis of the imprisonment already undergone because it was usual scuffle between the parties and the injuries caused to the complainant were not sufficient in nature to cause death and were simple in nature.

11. Learned counsel for the appellants based on his arguments on ruling of Hon'ble Apex Court in the case of Bishan Singh and another v. The State, reported in AIR 2008 SC page 131. In para 11 of the said judgment the Hon'ble Supreme Court held as under :

"Although overt-act had been attributed against each of the accused who were having lathis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body."

12. In view of aforesaid judgment passed by Hon'ble Apex Court the trial court has to adjudge the offence on the basis of nature of injuries caused to the injured persons and not on mere allegation. Hon'ble Apex Court in the instant case reduced the imprisonment to the extent of already undergone. In para - 14 of the said judgment Hon'ble Supreme Court has held as under :

"While imposing punishment in a case of this nature, the Court is required to take into consideration the factors which may weigh with the Court for taking a lenient view in the matter. The is incident is of 1984. 23 years have elapsed. Appellants had all along remained on bail. It is not stated that they had ever misused the privilege of bail. The incident does not reflect any cruelty on their part or any mental depravity. They had been in custody for more than five months. In a situation of this nature, we are of the opinion that it may not be proper for this Court to send the accused persons back to prison. However, the injured had suffered pains at the hands of the appellants. We are, therefore, of the opinion that while their substantive sentence may be reduced to the period undergone, they should pay a fine of Rs. 15,000/- (Rupees fifteen thousand) each; failing which they should undergo simple imprisonment for a period of one year each. If the aforementioned amount is realized, a sum of Rs.25,000/- (Rupees twenty five thousand) out of the sum, may be paid to the informant."

13. Learned counsel for the appellants has also cited the decision in the case of Babu Ram and others v. State of Punjab, reported in 2008 (60) ACC 991. In the instant ruling Hon'ble the Apex Court emphasized on the facts that injuries should be explained by the prosecution on the body of the accused person. It was the duty of the prosecution to explain how the accused person has sustained injuries. In paras - 19 and 20 of this ruling, the Hon'ble Apex Court has detailed the deliberations:-

"19. Further, it is important to point out that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.

20. In the present case, the prosecution has not explained the injuries on the person of the accused Indraj and his wife Smt. Maya Devi...... ..."

14. Learned counsel for appellants also placed reliance on the decision of Hon'ble Apex Court in the case of Balwan Singh v. State of Haryana, reported in (2006) 1 S.C.C. (Cri) 108. In the instant case also Hon'ble Apex Court has held that in case of failure of the prosecution to explain injuries sustained by the accused, then the benefit will go to the appellants and consequence thereof the appellants and other co-accused shall be entitled for benefit of doubt.

15. Learned counsel for the appellants has also placed reliance on the case of Lakshmi Singh and others v. State of Bihar, reported in 1976 Cri.L.J. Page 1736, in which the ratio is that the prosecution did not explain the injuries sustained by the accused at the time of occurrence or during the course of altercation. These facts are very important and inference can be drawn out of these facts. Hon'ble the Apex Court in para-11 has held as under :

"11. The trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of P.W. 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly pro-babilised. Under these circumstances the prosecution had a duty to explain those injuries.... In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.

This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow; (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the present case has not correctly applied the principles laid down by this Court in the decision referred to above."

In para 17 of the aforesaid judgment, the Apex Court has also held as under :

"17. Thus in view of the inherent improbabilities, the serious omissions and infirmities, the Interested or inimical nature of the evidence and other circumstances pointed out by us, we are clearly of the opinion that the prosecution has miserably failed to prove the case against the appellants beyond reasonable doubt. Normally this Court does not interfere in an appeal by special leave with concurrent finding of fact, but this is one of these cases where the judgment of the High Court is manifestly perverse and where the High Court has not considered important circumstances which completely demolish the prosecution case. In fact the High Court has hardly made any real attempt to analyse or discuss the evidence and has merely affirmed the finding of the Sessions Judge by narrating the evidence relied upon by it. We have already pointed out that on one of the most important points arising in a criminal trial, namely, the non-explanation of the injuries on the person of the accused by the prosecution, the High Court has not only committed an error of fact but an error of law by showing a lack of proper appreciation of the principles decided by this Court. For these reasons, therefore, we think there are special circumstances in the present case which have compelled us to interfere in this appeal by special leave."

16. In the light of these deliberations, learned counsel pointed out that Hon'ble the Apex Court has repeatedly emphasized that the quantum of injuries is important for the court to ascertain that what type of offence is made out. At the same-time during altercation, if any, injuries have been sustained by the accused persons, then the same should also be explained. Therefore, in any eventuality evaluation must be in accordance with the set of principle of law and, therefore, on the basis of discussion, there is no need to interfere in the findings. Learned counsel for the appellants vehemently argued that in view of Hon'ble Apex Court ratio in the above mentioned ruling, the sentence be reduced to the extent of the period of imprisonment already under gone. The argument is that they have been taken into custody and their bails were cancelled during trial, when murder took place, will hardly influence the present case because in the instant case the adjudication is regarding the facts and circumstances of the present case and not because of other happenings which took place subsequent to this act. The offence is to be adjudged in the light of the fact and not on the basis of presumption and imagination. The revisionist is trying to analyze these facts in the light of subsequent act. If any, act has been committed subsequent to this offence, then the court will not adjudge the present case in the light of those facts and circumstances of the subsequent case. Therefore, learned counsel for the appellants has argued that the sentence be reduced to the extent of the period already undergone. Learned counsel for the appellants reiterated that the appellants are not pressing the merit of the case they are praying that in the aforesaid circumstances they be treated leniently because there was no grievous injury and all the injuries were simple except injury in the little finger in which the little finger was found fracture. Therefore, it will not effect the merit of the case and merit shall remain as the appellants have caused only simple injury. Fracture in the little finger is similar to that of simple injury. No ordinary reasonable prudent man will consider the fracture in little finger as grievous. Learned counsel prayed that under these circumstances, they may be released on the basis of imprisonment already undergone i.e. total of one year and eight months and in the light of all these facts, the revision is liable to be dismissed.

17. In reply, learned Additional Government Advocate and learned counsel for the revisionist argued at length. Learned counsel for the revisionist argued that learned trial court committed manifest error of law by not framing the charges under Section 325 I.P.C. in Sessions Trial No.106/2003 although from the evidence, the contention of radiologist is proved. The trial court conducted the trial and statements of P.W.-1, Ram Chandra Yadav, injured P.W.-2 Akhilesh Kumar Pandey, P.W.3 Suresh Narain Pandey, P.W.-5 Dr. S.C. Mishra., Radiologist and another Dr.A.K. Tandon, P.W.-6 were recorded and in support thereof the Investigating Officer has also been examined. These witnesses were duly cross examined but nothing has been extracted out of their testimony and case stands proved. Injuries were affirmed by P.W-6 Dr.A.K. Tandon in his testimony and P.W.-5 confirmed the fracture in the little finger of left hand of Akhilesh Kumar Pandey, therefore, offence under Section 325 was made out. Learned counsel for the revisionist argued that the nature of injuries show that there was intention to kill. Therefore, the charges under Section 307 I.P.C. are proved. The motive itself was very clear that Second Appeal No.441 of 1985 was decided against the appellants and there was previous enmity between them, therefore, they attacked the son of the complainant. The most important point raised by learned counsel for the revisionist was that complainant- Suresh Narain Pandey, who was as Advocate by profession was murdered by the appellant and because of these facts the bail of the appellants was cancelled on 18.4.2012 during the pendency of the appeal. Learned court below committed manifest error in not convicting the accused-persons under Section 307 I.P.C. As far as, the prosecution story is concerned, the police reached on the spot to rescue the complainant's son but accused opened fire on the police constable Ram Chandra Yadav. The sole aim of the appellants was to murder Akhilesh Kumar Pandey, son of the complainant. The motive, preparation and the conduct of the accused-persons are very important and these circumstances attract the prosecution story, therefore, the charges stand proved.

18. Learned counsel for the revisionist has placed reliance on the case of S. Balasubramaninan & Another v. State of Tamil Nadu & others, reported in 2012 Crl. L. J. page 3778. Hon'ble the Division Bench of Madras High Court has held that Court has full power to enhance the sentence exercising the powers under Sections 397 and 401 Cr.P.C. Learned counsel for the revisionist also cited the following rulings in support of his case :

1. (2009) 4 S.C.C. Page 471 Rameshwar Prasad Vs. State of Rajasthan.

2. (1983) 2 S.C.C. Page 320 State of Maharashtra Vs. Balram Bama Patil & Others.

3. 1995 Crl. L.J. 4211, Pursottam Tripathi Vs. State of Orisa

4. 1982 Crl. L.J. 751, Om Prakash Vs. State

5. A.I.R. 1970 Kerala 98, Sanki Shreedharan Vs. State of Kerala.

6. 1996 Crl. L.J. 3499. S.C. Bhagirath Vs. State of Haryana.

19. At the end, learned counsel for the revisionist concluded that offence under Sections 307/34 and 325/34 stands proved and the court may enhance the punishment and pass the sentence in the light of these sections. The punishment up to life imprisonment can be awarded under these circumstances. Learned counsel also reminded that these are the persons who subsequently on 23.10.2011 killed revisionist Suresh Narain Pandey and tried to attack Akhilesh Kumar Pandey on 12.3.2012. On persuasion of prosecution, on 18.4.2012, the bails of the appellants were cancelled and they were taken into custody. Criminal history and other antecedents have already been brought to the light and have been narrated in the order dated 18.4.2012 passed by this Court. Learned counsel prayed that sentence be enhanced in the light of these deliberations.

20. Heard learned counsel for the appellants in Criminal Appeal No.907 of 2006 and also arguments advanced by counsel for the revisionist in Criminal Revision No.273 of 2006.

21. The main grievance of the revisionist is that the appellants have been awarded lesser punishment and, therefore, the revisionist has preferred the instant revision. As per contention of the revisionist, in Sessions Trial No.106 of 2003 case under Section 307 I.P.C. is made out and also case under Section 325 is made out but the appellants have been sentenced under Section 323/34 I.P.C. whereas they ought to have been sentenced to undergo rigorous imprisonment for more years in Sessions Trial No.105 of 2003. Trial Court has erred in sentencing them under Section 308/34 I.P.C. They ought to have been sentenced under Section 307/34 I.P.C. and maximum punishment is life imprisonment and in alternate imprisonment may go to ten years for intentionally causing hurt with intention of causing death. The appellants on the other hand initially challenged the order of conviction but subsequently prayed that in case court reaches to the conclusion that offence is made out against them,, then on the basis of the injuries, they may be treated with leniency and be released for the period of imprisonment already undergone and they have already served out the sentence of more than one year and eight months in view of the pronouncements of Hon'ble Apex Court quoted above.

22. Therefore, this Court has to adjudicate in both the appeal and revision about legality of the order. The appellants mainly relied on the case of Bishan Singh and Another v. The State, (Supra), in which, Hon'ble Apex Court was of the view that the assailants were carrying lathis only and 7 blows were caused and out of these injuries only one of them was grievous and caused fracture on arm, which was not on vital part of the body. Hon'ble Apex Court concluded that even offence under Section 308 I.P.C. is not made out, the offence would fall under Sections 323 and 325 I.P.C. only. In the instant ruling, the trial court convicted the appellant for one year's rigorous imprisonment under Section 147 and for four years rigorous imprisonment under Section 308 I.P.C. and Hon'ble Apex Court considering the custody of more than five months and reduced the sentence to the period already undergone together with fine.

23. Learned counsel for the appellants has also placed reliance in the case of Babu Ram and others v. State of Punjab (Supra), in which, Hon'ble Apex Court was of the view that during interaction the injuries were also caused to the accused person but the prosecution did not explain the injuries, this is fatal for the prosecution. Similar view is also taken in the case of Balwan Singh v. State of Haryana, (Supra). In that case Hon'ble Apex Court granted the benefit of doubt to the accused-person. Hon'ble Apex Court in the case of Lakshmi Singh and others v. State of Bihar (Supra) has also expressed the same view as mentioned above.

24. Therefore, to sum up the appellants tried to emphasize that :

1. That the injuries were not proportionate to the offence in which they have been sentenced, it should not be under Section 308 I.P.C. but instead under Section 325 I.P.C. and therefore, the sentence already undergone would be appropriate.

2. Whereas the revisionist laid emphasis on the fact that case under Section 307 I.P.C. is being made out it does not matter whether the injuries were caused or not because if, gun has been fired that means that there was intention to kill and if by chance bullet did not hit the target, it does not mean that offence is not made out. Offence is complete because of intention the circumstances are more material than the actual injury. There is ample evidence on record which suggests that the police personnel intervened when the appellants were trying to kill the son of the complainant Suresh Narain Pandey even they have also been shot and sustained gun shot injury.

25. Section 307 I.P.C. is reproduced herein below :

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."

Section 307 I.P.C. can be summerised as follow :

1. The act must be intention or knowledge.

2. Under such circumstances that if by that act had the     	death been caused. They would have been guilty of    	murder. 
 
3. There is no mention regarding the nature of injury
 
26. Section 308 I.P.C. is attempt to commit culpable homicide.
 
          Section 308 is reproduced herein below :
 

Attempt to commit culpable homicide:- 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 culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both ; if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."

27. By bare reading of these sections these are related to Sections 299 and 300 of the I.P.C. An attempt of Section 299 is 307 I.P.C. and attempt of 300 is 308 I.P.C. Now this will depend entirely upto the facts and circumstances of the each case that what offence has been made out. Court has to form its opinion as to whether offence is made out or not on the basis of circumstances and evidence of the witnesses. In Sessions Trial No.105 of 2003, the allegations against the appellants are that Raja Ram, Vijay Prakash alias Lalu, appellants were holding lathis in their hands, the third appellant Ajay was having country made gun in his hand and they encircled the complainant and Akhilesh Kumar Pandey, and this was witnessed by the complainant and his guard that his son was being beaten up by these persons. When the complainant and his guard challenged the appellant Ajay, appellant-Ajay fired on the complainant with intention to kill him. However, the complainant escaped the bullet by bending down and meanwhile other two persons caused injuries with lathi on the head of the complainant. But somehow complainant caught hold of both the assailants Raja Ram, Vijay Prakash and took them to the police station. The complainant constable Ram Chandra Yadav then got registered a case against the assailants and another case has been registered on the complaint of Suresh Narain Pandey whose son was being beaten up, that means, the assailants were fearless and even they tried to manhandle the police personnel when they came for rescue Suresh Narain Pandey and his son Akhilesh Kumar Pandey. The occurrence has been witnessed by so many persons. The occurrence is such as there is hardly for denial. The Court after examining each witnesses held the appellants guilty under Section 308/34 I.P.C. instead of Section 307/34 I.P.C. and Section 332/34 I.P.C. and 353 I.P.C. and also under Section 323/34 I.P.C. in a case in which the police constable was complainant. The findings of the trial court is based on the fact that the complainant Suresh Narain Pandey snatched away the lathi from Raja Ram and took defensive steps that means he tried to over power the assailants and in the meanwhile both the constables tried to catch hold of Ajay, the third assailant and he in order to escape, fired on constable Ram Chandra Yadav that means there was no intention to kill police constable and that is why bullet was not fired with such intent or under such circumstances as may cause death.

28. Learned lower court relied on the case reported in 1979 A.I.R. S.C. , Jagdish v. State of Rajasthan, in which injuries were not explained on the person of the assailants. The prosecution story is that complainant took hold of situation and snatched the lathi and they tried to defend themselves by using lathi and the third assailant tried to escape and while escaping he fired shot in order to save himself when the police constable followed him. Therefore, the main point here is that the circumstances and the fact placed before the trial court in the evidence. The trial court has reached to the following conclusions :

1. The complainant now deceased Suresh Narain Pandey snatched the lathi from Ram Ram and tried to exert force in defence.

2. Both the constables who were on beat duty tried to apprehend the third assailant Ajay Prakash who was having a gun in his hand and was trying to escape fire shot from his gun in order to escape.

3. Trial court concluded for the facts on record that the intention was not to kill the police personnel but to escape from the scene of occurrence.

4. The injuries on the person of complainant Suresh Narain Pandey and his son Akhilesh Kumar Pandey were simple in nature and subsequently x-ray was conducted and the little finger was found fractured and rest other injuries were simple in nature.

5. The evidence on record says that assailant-Ajay was very near to Akhilesh Kumar Pandey and it was not possible that had the gun was fired from this range would miss the target but since no injury was there the possibility is ruled out.

6. The injuries caused to the constable Ram Chandra Yadav were also not grievous. Initially injury Nos.1 and 2 of constable was kept under observation but after x-ray it was found that there was no fracture.

29. Therefore, on the basis of the circumstances and facts on record, it cannot be said that shot was fired with intention to kill because the allegations have been made that assailant-Ajay with intention to kill fired on Akhilesh Kumar Pandey but there is no corroboration regarding this fact. Nobody received fire arm injury. It is true that scuffle took place and the assailants were armed with lathi and one assailant armed with country made gun but it was an old enmity and all the injuries caused were simple in nature except fracture in the little finger of hand of Akhilesh Kumar Pandey son of Suresh Narain Pandey.

30. Learned counsel for the revisionist has placed reliance of the case of S. Balasubramaninan & Another v. State of Tamil Nadu & others (Supra) regarding powers to enhancement of the sentence. The ruling cited by them is against the facts on record because one appeal was pending before learned Sessions Judge and the revision was also pending before another Judge. By the order of High Court both the matters were transferred to the same Judge for disposal and it was held that learned Sessions Judge has got powers to enhance the punishment in the revision but this is not a case here. Similarly, the other case law referred on behalf of the revisionist do not attract the present facts of the case. As far as the sentence is concerned, I do not find any illegality in the sentence and order passed by the lower court because ingredients of Section 307 I.P.C., are not attracted and, therefore, sentence passed by learned lower court is in accordance with the provisions of law. The last point raised by learned counsel for the revisionist is that vide order dated 18.4.2012, the bail of the appellants were cancelled because Suresh Narain Pandey the complainant was murdered and the allegations have been levelled against the appellants and the F.I.R. Has been lodged against them. As far as, this F.I.R. is concerned, no comments are required because it will prejudce the case. As far as, the cancellation of bail, vide order dated 18.4.2012 is concerned, it will not affect the merits of present case. Immediately after murder the appellants were named and, therefore, as per circumstances then, the bail was cancelled. However, the merits of the instant case will be evaluated in accordance with facts and circumstances of the case and not on the ground of subsequent happening. Much less, the trial is still pending and present appeal will not be affected by subsequent happening. Therefore, I am of the view that sentence passed by learned lower court need no interference and it does not require to be enhanced because this is appropriate and in accordance with the provisions of law and in conformity, in consonance with the facts on record.

31. The result is that both appeal and revision are liable to be dismissed. Appeal is dismissed. The appellants are in jail they shall complete the sentence as awarded to them and the revision is also dismissed and no enhancement is required.

Let a copy of the order be placed in Criminal Revision No.273 of 2006.

Dated :19.11.2013.

sks