Jamate vs State Of U.P.
2013 Latest Caselaw 6338 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
A.F.R.
 

 
Court No. - 8
 

 
Case :- CRIMINAL APPEAL No. - 2679 of 2009
 

 
Appellant :- Jamate
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Mohd. Saulat Wasim,  Anurag 				        Singh Chauhan, Pankaj Tripathi, 				   Rohit Singh Parmar, Shamim Jahan
 

 
Counsel for Respondent :- Govt. Advocate, 
 
						Pranav Agnihotri
 

 
Hon'ble Zaki Ullah Khan,J.

1. The instant appeal has been preferred against the judgment and order dated 07.10.2009 passed by Additional Sessions Judge/F.T.C, Court No.3, convicting and sentencing the appellant ten years rigorous imprisonment under Section 307 I.P.C. together with a fine of Rs.2,000/- and in default of payment of fine, the appellant will have to undergo two months' additional imprisonment.

2. The brief facts giving rise to the appeal are that a written report Ext. Ka-1 has been lodged by the complainant Smt. Manju at the police station Mahmoodabad disclosing that she is residing in the house built near Bismillah Shah Mazar Khetaura and she is running a sweet and tea shop in the same house; that on 07.03.2008 at about 4:00 p.m. the appellant came to her tea shop and demanded Samosha on credit; that her husband did not oblige him on the pretext that he was already in arrears, thereupon the appellant threatened him for dire consequences and went away; that on the intervening night of 07/08.03.2008 at about 1:00 a.m., the appellant along with three his companions came to the shop of complainant and tried to cause disturbance by rattling the shutter; that the complainant was sleeping at the terrace along with her husband and children; that hearing the noise of rattling the shutter, the complainant and her husband tried to peek from the terrace in the light of torch and enquired that why the appellant has come at the odd hours; that in the meantime the appellant along with his companions fired at her husband with intention to kill him and that resulted in firearm injuries all over his body; that when she raised alarm neighbours came for rescue but in the meantime appellant and his companions succeeded in running away; that the Chik F.I.R. Ext. Ka-4 was prepared on the basis of written report Ext.Ka-1, the description which has been made in G.D Ext. Ka-5; that during investigation on 08.03.2008 the investigating officer completed all formalities by collecting scattered samples of blood and bloodstained, scarf and prepared memo Ext. Ka-9; that the investigating officer also examined two torches used at the time of occurrence in locating the appellant and his companions and prepared the memo and thereafter the torches were handed over in custody of the complainant; that the investigating officer prepared site plan Ext.Ka-7; that the medical examination of the injured was conducted at C.H.C. Samudayik Health Centre at Mahmoodabad on 08.03.2008 at about 3:20 a.m. That the medical examination report is Ext. Ka-3 and the injured was referred to district Hospital, Sitapur for X-ray; that Eye Specialist of KGMC, Lucknow examined the injured and submitted report Ext. Ka-6 and after investigation, charge-sheet Ext.Ka-8 was submitted against the appellant; that after examining the prosecution witnesses, the court was of the opinion that the case is proved beyond all reasonable doubts and reached to the conclusion after going through the statements on oath of injured, complainant-P.W.2, doctor-P.W.3 and another doctor-P.W.5 and Investigating Officer-P.W.6 that the appellant caused injuries by using firearm with intention of causing death; that the trial court was not convinced with the defence plea that the case has been falsely instituted and injuries were self inflicted and accordingly sentenced the appellant for ten years rigorous imprisonment under Section 307 I.P.C. together with a fine of Rs.2000/-; that aggrieved by the aforesaid order, the instant appeal has been preferred.

3. Learned counsel for the appellant argued that nobody can believe that on trivial issue of demand of Samosa, the appellant will try to take revenge by using firearm. As per the prosecution version, at about 4:00 p.m. the appellant came to tea shop of the complainant and demanded Samosa on credit and when the injured did not oblige him he threatened and went away and thereafter he came with firearm to settle the score. Initially the incident was trivial in nature and there was no other enmity. Learned counsel for the appellant pointed out that there is contradiction in the testimony of the prosecution witnesses. P.W.2, who is the wife of the injured and complainant, narrated that her husband did not oblige him with Samosa and Jalebi on credit where initially in the written report the allegations were only regarding Samosa, therefore, the matter is far from reality and the entire incident took place in the pitch dark night. The assailants were not traceable. It is not possible that the complainant and her husband could have recognized the appellant in the pitch dark night where the only source of light was the torch and that has been introduced at the later stage in order to give colour to the occurrence. The testimony is also not worthy of reliance because the complainant was standing besides her husband and shots were fired from the ground towards the terrace and it is very strange that not a single pellet hit the complainant and all the pellets pierced inside the body of the injured and the complainant was spared. All these facts are far from reality. There is no other witness of fact except these two persons, although it has been alleged that number of persons from the neighbourhood gathered on alarm of the complainant. The complainant's husband was also on inimical terms with other persons of the village. P.W.1 injured admitted this fact in his statement on oath that Sitaram's son Manohar and Sagar are on inimical terms and an incident took place before this incident and which is still pending before the Fast Track Court for adjudication. He was also inimical with Suresh and Radheyshaym, therefore, in the pitch dark night the appellant alone cannot be held responsible for the injuries suffered by the complainant's husband. The appellant has also apprised the court about the reason why he has been implicated falsely.

4. In this regard, learned counsel for the appellant cited a judgment of the Apex Court in Dhian Singh vs. State of Punjab, reported in [(1997) SCC (Cri) 634. On the basis of citation it is crystal clear that when there were four persons how can appellant alone be held guilty for intention to kill. At the most, it can be presumed that intention shared by the appellant with the other assailants was to extent of causing hurt to the injured but there was no intention to inflict injury with intention to kill. Learned counsel for the appellant also cited a judgment of the Apex Court in A. Shankar vs. State of Kartanaka, reported in [(2011) 6 SCC 279] in which the Apex Court has laid down the ratio regarding identity of the accused, motive and weapon used in commission of crime. Learned counsel pointed out that the Apex Court has held in para 6 of the aforesaid judgment as follows:-

"6. Learned counsel appearing for the appellant has submitted that the High Court has committed an error in interfering with the well-reasoned judgment of acquittal by the trial court and relying upon the evidence on record while ignoring the material inconsistencies between the evidence of the witnesses; and medical and ocular evidence. No motive was proved by the prosecution to commit the offence. There had been an inordinate delay of 4 hours in lodging the F.I.R. as the murder was alleged to have been committed at 2 a.m. While the complaint was lodged at 6 a.m. on the same day, though the police station was at a distance of only one kilometre. There had been discrepancy relating to the seizure and kind of weapon used in the offence. Therefore, the appeal deserves to be allowed.

5. Learned counsel for the appellant pointed out that thus, the weapon has not been recovered by the Investigation Officer during investigation of the case, time has not been proved, identity of the assailants have not been established. There were enmity of the injured with other persons of the village also. The motive has not been established, therefore, order passed by the learned trial court suffers from gross irregularities. In the alternate, learned counsel also pleaded that if the Court reaches to the conclusion that charges against the appellant are proved then he may be treated leniently since he is in jail from 2008 and he has already served more than five years sentence out of total awarded sentence of ten years, therefore, he may be released on the basis of imprisonment already undergone.

6. Learned A.G.A. replied that the charges against the appellants stand proved. Motive is very clear that immediately before the occurrence i.e. 07.03.2008 at about 4:00 p.m. the appellant advanced threats because he was not obliged by the injured and he did not allow him to take Samosa on credit. Aggrieved by this act, the appellant armed with country made pistol along with his three companions came to complainant's house to settle his scores at about 1:00 a.m. in the intervening night and when the complainant and his wife tried to object then he fired on injured that resulted in loss of eye sight of the injured. The act was intentional, he came to settle his scores with intention of causing such bodily so as to cause death. Learned counsel for the appellant further reiterated that use of firearm itself suggests that the appellant was confident that by using firearm he will cause such injuries which may be sufficient to cause death in ordinary course of nature. The complainant and her husband were produced as prosecution witnesses. The appellant was very familiar to them. They are of the same village. They knew each other from considerable time, therefore, there is no chance on mistaken identity. The evidence has been corroborated by independent witnesses. Doctor-P.W.3, who examined the injured at 3:20 a.m. immediately after the occurrence and he found that there were three injuries. There were multiple laceration in the area .3X.2 skin deep. There were also lacerations of .3.X.3 skin deep on forehead. Margins were inverted oval in shape. Similarly other injuries were also one on the chest and another on 5 c.m above on the chest and P.W.5 is eye surgeon who examined the eyes and was of the opinion that he will not regain eye sight and injuries were such that caused him complete blindness, therefore, there is no anomaly and infirmity in the judgment of the learned lower court. There is no ground to interfere in the judgment passed by learned lower court. The case is proved beyond all reasonable doubts.

7. Learned A.G.A. also added that the appellant is not entitled for any mercy since he has caused serious injuries that resulted in complete blindness of the injured.

8. Heard learned counsel for the appellant as well learned A.G.A. and perused the judgment and order dated 07.10.2009 passed by learned lower court. The learned lower court has sentenced the appellant to undergo R.I. for ten years together with a fine of Rs.2000/-. The appellant was charged under Section 307 as well as 326 I.P.C. for causing grievous injuries because the appellant lost eye sight permanently because of injuries inflicted by the appellant. As per the prosecution story, initially the appellant demanded Samosa on credit on 07.03.2008 at about 4:00 p.m. at the tea shop of the complainant. The complainant's husband did not oblige him by advancing the credit and that was the reason of annoyance. The appellant was annoyed by their behaviour. He was already in debt and on owed sufficient credit and that is why the injured did not oblige him. Aggrieved by their behaviour, the appellant nurtured grudge and taking advantage of pitch dark night he tried to take revenge with intention of settling his scores. He knocked at the shutter and tried to disturb the couple at mid night. When questioned by the couple, the appellant fired shots on the complainant's husband with intention to kill him and caused multiple injuries by using firearm.

9. In this regard, Section 307 of I.P.C. is reproduced hereinbelow;

"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 1[ imprisonment for life], or to such punishment as is hereinbefore mentioned."

10. That means, had the death been caused by his act, the appellant would have been guilty of murder. The punishment can be categorize in three categories. The first part relates to punishment for ten years and fine, the second part provide for imprisonment of life, or imprisonment for ten years and fine and third part is that one a life convicts causes hurt then he can be punished for death, or imprisonment for ten years and fine. The intention of knowledge of the accused must be such as it is necessary to constitute murder; Hari Kishan and State of Haryana vs. Sukhbir Singh, reported in [(1997) Crl. L. J. 116 : AIR 1988 SC 2127]. In this case, the Hon'ble Apex Court has laid down the principle regarding intention or knowledge of the accused. The question of intention to kill or the knowledge of death in terms of section 307, is a question of fact and not one of law. It entirely depends on circumstances of facts. The important thing to be borne in mind in determining the question whether an offence under Section 307, is made out is the intention and not the injury (even if simple or minor). It is not necessary that injury, capable of causing death, should have been inflicted. What is material to attract, the provisions of Section 307 is the guilty intention or knowledge with which all was done, irrespective of its result. The intention and knowledge are the matters of inference from totality of circumstances and cannot be measured merely from the results.

11. Learned counsel for the appellant tried his best to distinguish the facts. In this regard, he has cited a judgment of the Apex Court in the case of A. Shankar vs. State of Kartanaka, reported in [(2011) 6 SCC 279] in which he has emphasized upon the identity of the accused, motive and weapon etc. The arguments advanced by learned counsel for the appellant relates to fact that it was pitch dark night and the source of light was only torch, therefore, it is not possible to identify the accused and the motive was very vague. Merely on the basis of petty matter, nobody can kill the person. There was no other enmity except altercation that took place in the evening.

As far as learned counsels arguments are concerned, these are not tenable. The accused was very familiar and well known. There is question of mistaken identity. There is no reason of false implication. There is eye witness account and the complainant and her husband both identified the appellant and since he was very familiar, it cannot be said that the appellant was not recognized during pitch dark night. Even by sheer whisper well-known person can be identified. Appellant and complainant and injured belong to same place and each of them were quite familiar with each other so there is no question of mistaken identity and mistaken identity for what? The answer has not been given. There was no motive to falsely implicate the appellant. The appellant demanded a Samosa in the evening and since owed sufficient money of the injured and therefore, he did not oblige and refused to provide Samosa as demanded by him. Enraged by this act, he immediately challenged him and threatened to face dire consequences and immediately after few hours on the intervening night he came and tried to settle this course by causing hurt by firearm. The injuries were caused by firearm. Section 307 is very clear that whosoever 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. It is very clear that he knew very well that he may cause death because he has used firearm as weapon. It is not the case of sudden fight or scuffle. It was a pre-planned act. The intention was to cause hurt and he had full knowledge that it may cause death because shootings were firearm may cause death. Therefore, ingredients of Section 307 are fulfilled. The motive was there. Even, if the motive is ignored, then since it was an eye witness account, motive need not to be explained. The motive is relevant only in the circumstantial evidence. The instant case is not of circumstantial evidence. This is direct eye witness account and duty of the prosecution was not to explain the motive. It was a planned act with intention of causing death. The appellant after preparation reached at the spot and attacked and injured, the complainant's husband, causing permanent loss of his eyes sight. The argument that injuries were not sufficient to cause death in ordinary course of nature will not justify his act because if he by that act death has been caused, he would be guilty of murder. Therefore, in all eventuality this is a case of attempt to murder and prosecution has established its case beyond all reasonable doubts. There is ample evidence on record. The eye witness account is there and eye witness account has been corroborated by doctors P.W.3 and P.W.5. The argument that the other witness has not been examined will not provide any help to appellant because testimony of eye witness and injured supported by doctor is sufficient to hold him guilty. The doctors are independent witnesses. P.W.3 examined the injured immediately after occurrence on his face and eyes and doctor-P.W.5 is eye specialist who examined the injured and found that he has lost his eye sight permanently. The evidence of other witnesses are not required. If the things were otherwise, the appellant could have summoned those witnesses in defence but the appellant has not produced any such defence that he has been implicated falsely. The appellant in his defence cited a judgment of this Court in Nazir Siddhi and others vs. State of U.P., reported in 1986 SCRR 143 showing that it is fatal for prosecution not to produce the independent witness when the independent witnesses were available. But this will not attract the present case because it was the pitch dark night and the appellant and his companions were seen running away from the place of occurrence when noticed by neighbouring witnesses. The main witnesses were the injured and complainant, who first noticed their presence. The prosecution case cannot be disbelieved only on this ground when the entire story is supported by two eye witnesses and verified by the independent doctors who immediately thereafter examined the injured. The prosecution case is, therefore, established beyond all reasonable doubts and there is no reason to interfere in the judgment and order passed by learned lower court.

12. The learned counsel for the appellant, however, during his argument also prayed that in case the court reaches to the conclusion that the case has been established against the appellant then looking into the circumstances he may be treated leniently and sentenced be reduced to sentence already undergone on the ground that he has a family behind him. He is only bread earner of his family and he is already in jail for the last more than five years and be released on the basis of imprisonment already undergone. The appellant has been adjudged guilty on the merits of the case. The allegation against him that he caused firearm injuries and that resulted in the permanent lost of eye sight of the injured, therefore, his act is not such that he should be released on imprisonment already undergone. On the contrary, his act is very heinous. He has been sentenced to undergo ten years R.I. Under Section 307 I.P.C. there is no minimum punishment but it is the discretion of the court to punish with the imprisonment either or description for term which may extend to ten years along with fine. The appellant was also charged with section 326 of I.P.C. also in the lower court but the court exonerated him under Section 326 I.P.C. and convicted him under Section 307 I.P.C. The only ground shown on behalf of the appellant is that his family will starve because he is only bread earner of his family and he is in jail for the last about five years. His family has reached to the stage of starvation due to his confinement in prison. Circumstances are such that although he is not entitled for any claimancy but in view of the above condition of his family, I am of the view that sentenced may be reduced from ten years to seven years along with fine of Rs.2000/-. No other leniency is required because by his act he caused permanent lost of eye sight of the injured. Therefore, appeal is decided accordingly. Appeal is dismissed on merits with modification of the sentence and the sentence is reduced from ten years to seven years and now the sentence be read as follows;

The appellant is convicted under Section 307 I.P.C. and sentenced to seven years R.I. and fine of Rs.2000/- and in default of payment of fine, he will have to undergo further imprisonment of two months.

13. The appellant is in jail. Registry is directed to communicate this order to the Superintendent of Jail concerned as well as lower court.

Order Date :- 07.10.2013

akhilesh/-