Ram Raj & Others vs State
2016 Latest Caselaw 4459 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED ON 11.07.2016 
 
DELIVERED ON 22.07.2016
 
                                                                                       AFR
 

 
Court No. - 20
 

 
Case :- CRIMINAL APPEAL No. - 473 of 1996
 

 
Appellant :- Ram Raj & Others
 
Respondent :- State
 
Counsel for Appellant :- K.M.Rakesh,Manish Bajpai
 
Counsel for Respondent :- Govt. Advocate,Narendra Shukla,Shyam Mohan
 

 
Hon'ble Mrs. Ranjana Pandya,J.

Challenge in this appeal is to the judgment and order dated 10.10.1996 passed by learned Sessions Judge, Unnao in ST No. 555 of 1992 (State Vs. Ram Ran and others) under Section 307 IPC,  Police Station Bihar, District Unnao, whereby the appellants Parikshit Raj and Tirth Raj were found guilty. Parikshit Raj was sentenced to five years' rigorous imprisonment under Section 307 IPC whereas accused Ram Raj and Teerath Raj was sentenced to five years' rigorous imprisonment under Section 307 IPC read with Section 34 IPC. 

2. Filtering out unnecessary details, brief facts of the case are that an FIR was lodged by informant Kamala Kant Bajpai stating that all the three accused reside in village Akampur, Police Station Bihar, District Unnao. Informant Kamlakant Bajpai also reside in the same village.  Accused Parikshat Raj is the real nephew of accused Ram Raj.  Accused Tirth Raj and Ram Raj are real cousin brothers.  According to the prosecution case there was a dispute regarding a Nali in between  the informant and the accused persons.  The accused persons wanted to make the Nali through the Sahan of the informant which was protested by the informant.  On 6.12.1990 at about 5:30 P.M.  informant Kamlakant Bajpai was sitting in front of his house on Chabutra with a Chhappar (Thatched structure) overhead.  Informant's  mother i.e. Smt. Ram Shree and informant's younger brother namely Vidyakant and neighbour Shri Ram Dixit were also sitting with him and were talking with each other.  In the meantime, all three accused persons, named above, came there.  Accused Parikshat Raj had a DBBL gun with him while accused  Ram Raj and Tirthraj were armed with half guns.  Accused Parikshit Raj laughed at Vidyakant and remarked that he was a imposter BABA and has been thrown out of the house and takes meals outside.  Vidyakant forbade them that they should not utter false words. Thereupon, accused Tirth Raj exhorted that they should be killed and he was willing to spend Rs.50,000/-.  Accused Parikshit Raj, thereafter, fired from his DBBL gun which hit Vidyakant and he fell down.  Thereafter,  Smt. Ram Shree and Sri Ram Dixit moved towards Vidyakant and then  all the three accused persons fired from their fire-arms due to which Smt. Ram Shri, Shri Ram Dixit and Vidyakant sustained fire-arm injuries.  Thereafter, villagers -  Chandra Nath Tiwari, Vipin Kumar Dixit, Maiku Lal and many others came challenging and then the accused persons went away towards their houses. 

3.  After departure of the accused persons, informant Kamlakant Bajpai, carried the three injured in two bullock carts to the police station. Written report Ext. Ka-1 was got prepared by the informant outside the boundary of the police station by Ram Ji Pandey.  Written report Ext. Ka-1 was given at the police station, Bihar. Head Moharrir Ashok Kumar Singh prepared chik FIR Ext. Ka-5 on the basis of written report.  The case was registered in the G.D. at Sl. No. 22 at 6:45 PM on 6.12.1990.  Original general diary has been weeded out and an endorsement to that effect from the Record Keeper is Ext. Ka-6. Carbon Copy of the G.D. entry is Ext. Ka-7.  Chitthi Mazroobis Ext. Ka-8 to 10 in respect of injured Vidyakant, Shri Ram Dixit and Smt. Ram Sri respectively were prepared by  Constable Clerk Virendra Kumar Singh and all the three injured were sent for medical examination.

4. Dr. U.S. Bagga was Medical Officer - Incharge of PHC Sumerpur.  Injured were examined medically by him in between 8:15 PM and 10:10 PM on 6.12.1990.  On the person of Vidyakant following injuries were found:-

1. A lacerated gun shot wound of entry of 0.3 cm diameter  x 0.6 cm on the middle of the upper lip, direction from right to left, margins inverted, no blackening.

2. A lacerated gun shot wound of entry of 0.2 cm. in diameter  x 0.4 cm on the left half of the abdomen and 10 cm above the umbilicus, direction from right to left upwards, clothes over the wound was torn, no blackening.

3. A lacerated gun shot wound of entry of 0.3 cm diameter x 0.4 cm on the front surface of the left thigh,  10 cm below the anterior-superior iliac spine, margins inverted,  direction from right to left, no blackening. 

4. Three lacerated gunshot wounds of entry in an area of 8 cm. x 4 cm; 0.2 cm x 0.3 cm 0.4 cm on the front to medial aspect of the right thigh, upper wound of entry 22.5 cm below and medial to the right anterior superior iliac spine, margins inverted, direction from right to left, upwards, no blackening.

5. A lacerated gunshot wound of entry of 0.2 cm diameter x 0.4 cm on the medial aspect, direction from right to left upwards, no blackening.

6. A lacerated  gunshot wound of entry of 0.3 cm. diameter x 0.4 cm. on the front surface of the right leg, direction from right to left, margins inverted, 7 cms. below and lateral to injury No. 5.

All the injuries were kept under observation till  X-ray and were caused by fire-arm.  Injury report is Ext. Ka-2.

5. On the person of Sri Ram Dixit following injuries were noticed :-

1. A lacerated  gunshot wound of entry of 3.0 cm. diameter x 0.6 cm. on the anterior aspect of the right arm upper part,  6 cm.  below the top of the right shoulder, direction from right to left  upwards, margins inverted, cloth opposite the wound tor, no blackening.

2. A lacerated  gunshot wound of entry of 0.3 cm. diameter x 0.4 cm. on the outer aspect of right arm, 03.00 cm.  below and backwards to the injury No. 1, cloth torn, no blackening.

3. A lacerated  gunshot wound of entry of 0.3 cm. diameter x 0.4 cm. on the outer aspect of right arm, 16 cm.  below the injury No. 2, direction right to left, margins inverted, no blackening.

4. A lacerated  gunshot wound of entry of 0.3 cm. diameter x 2.5 cm. on the back surface of the right arm, direction from right to left, margins inverted, 6 cm. below and backwards to the injury No. 3, no blackening. 

5. A lacerated  gunshot wound of entry of 0.3 cm. diameter x 1.5 cm. on the back surface of the right forearm, 15 cm. below the right elbow joint, margins inverted, direction from right to left.

6. A lacerated  gunshot wound of entry of 0.3 cm. diameter x 2.5 cm. on the right half of the chest, direction  right to left upwards, margins inverted, 8 cm. above and outer to the right nipple, no blackening.

7. A lacerated  gunshot wound of entry of 0.3 cm. x 0.4  cm. on the left half of the back,  margins inverted, cloth over the wound torn, 5.5. cm. inner to injury No. 6.

8. A lacerated  gunshot wound of entry of 0.3 cm. diameter x 0.4 cm. on the left half of the back, 22 cm.  below injury No. 8, direction  right to left downwards, margins inverted, cloth over the wound torn.

9. A lacerated gunshot wound of entry 0.3 cm. diameter x 0.4 cm.  on the medial back surface of the left forearm, direction from right to left, margins inverted, 7.5 cm. below and medial to the elbow joint left, no blackening. 

10. A gunshot wound of entry 0.3 cm. diameter x 0.5 cm. on the medial back surface of left fore-arm.

11. Two gunshot wounds of entry of 0.3 cm.  diameter x 0.2 cm. on the right proximal phalanx of the left thumb, palmer surface, upper part, distance between two wounds is 0.5 cm. direction front to back.

12. A gunshot wound of entry of 0.3 cm. dia. x 1.0 cm. direction from front to back, margins inverted, no blackening, on the palmer surface of the left hand over the root of the middle finger left hand.

All the injuries were kept under observation till X-ray and were caused by fire-arm.  Injury report is Ext. Ka-3. 

6. On the person of Smt. Ram Sri following injury was noticed:-

A gunshot wound of entry of 0.3 cm. dia. x 2 cm. direction from right to left upwards,  margins inverted,  no blackening, on the right half of the skull, 12 cm. above right mastoid tip, no blackening.

Injury was kept under observation till X-ray and was caused by fire-arm. Injury report is Ext. Ka-4. In the opinion of the doctor injuries of the three injured could have been caused at about 5:30 P.M on 6.12.1990 by fire-arm. The doctor has stated that injury of Smt. Ram Sri is on the vital part of the body.

7. All the three injured were referred for X-ray examination by the doctor. Dr. Satya Prakash was the Radiologist of District Hospital, Unnao on 8.12.1990. He took X-ray of the injuries of the injured persons. He prepared X-ray plate Ext. 1 of the injuries of Vidya Kant. He has found radio opaque shadow of metallic density of pellet size present-one on the face, one on right leg, two in right thigh and one in left thigh. X-ray report in this regard is Ext. Ka-13. X-ray plate Ext. II is in respect of X-ray of Sri Ram Dixit and the doctor found radio opaque shadows of metallic density of pellet size present-one in right fore-arm, two in right upper arm and one on the back. X-ray report is Ext. Ka-14. X-ray plate Ext. III is in respect of the injured Smt. Ram Sri and one radio opaque shadow of metallic density of pellet size was found in right half of the skull. Her X-ray report is Ext. Ka-15.

8. Sri I.N. Sharma - Investigating Officer was present at the police station when the FIR Ext. Ka-5 was lodged and chik FIR bears his signature. The Investigating Officer interrogated informant Kamlakant Bajpai and his mother Smt. Ram Sri at the police Station itself. Interrogation of Vidyakant and Sri Ram Dixit could not be done as they had many injuries. On 7.12.1990 on the pointing out of the informant site-plan Ext. Ka-11 was prepared of the place of occurrence. After completing necessary formalities of investigation, charge-sheet Ext. Ka-12 was submitted against the accused persons.

9. The prosecution has examined Kamlakant Bajpai as PW-1, Sri Ram Dixit as PW-2, Dr. U.S. Bagga as PW-3, Head Moharrir Ashok Kumar Singh as PW-4 and Sri Indra Narain Sharma - Investigating Officer as PW-5 and Dr. Satya Prakash as PW-6. A reference to the statements of these witnesses has been made above and it needs no repetition.

10. Statements of accused persons were recorded under Section 313 Cr.P.C., wherein they denied the allegations levelled against them.  Accused Teerath Raj stated that he was a government servant  and resided at Unnaon.   There was no dispute of  Nali between the parties and they have been falsely implicated. However, no defence evidence was adduced by the accused persons.

11. The learned lower Court after examining the evidence on record, passed the sentence as indicated in para - 1 of the judgment.

12. Feeling aggrieved, the accused appellants have come up in appeal.

13. I have heard learned counsel for the appellants, learned AGA appearing for State and perused the lower Court record.

14. The accused appellant  Ram Raj died during the pendency of appeal. Hence, the appeal filed by Ram Ram was abated.

15. The learned counsel for appellants has submitted that there was delay in lodging the first information report.  All the injured persons was not produced.  There is no evidence on record to convict the accused persons under Section 307 IPC. The judgment of learned Trial Court is based on surmises and conjectures and the appeal is liable to be allowed.

16. Per contra,  the learned AGA appearing for the State while supporting the conviction of the accused appellants has submitted that the conviction is based on legally admissible evidence available on record.  The judgment is well reasoned and the appeal lacks merit, which is liable to be dismissed.

17. As far as first information report is concerned, a perusal of the chik report Ext. Ka-5 reveals that occurrence took place on 06.12.1990 at 5:30 PM. Report was lodged on the same day at 6:45 PM. It is to be borne in mind that there are three injured persons in this case. The distance of police station from the place of occurrence is three kilometers. Lodging of the First Information Report depends on many circumstances like number of injured, nature of injuries, distance of police station from the place of occurrence. Thus, three persons having suffered gunshot wounds and distance of police station being three kilometers, the lodging of first information report after one hour and fifteen minutes would be considered a prompt FIR which rules out any chance of embellishment or false implication.

18. The learned counsel for the appellants while assailing the impugned judgment and order of conviction has submitted that as per the FIR Ext. Ka-1 although presence of all three accused namely Parikshat Raj, Ram Raj and Tirth Raj is shown in the first information report the role of abusing and exhortation is attributed to all the three accused, but role of firing was assigned to Parikshat Raj only, who is said to have fired with his DBBL gun due to which Vidya Kant, Ram Shri and Shri Ram were injured.

19. Thus, as per the first information report it is a case of single fire shot by Parikshat Raj. I have not lost sight of the fact that the first information report is not an encyclopedia of the complete prosecution case, but when the first information report is lodged by an eye witness the broad aspects of the matter are expected to find place in the first information report. In this background, the evidence of witnesses have to be seen. PW-1 Kamlakant Bajpai, informant, claims himself to be an eye-witness.

20. The learned counsel for appellants has also submitted that the FIR is short of motive and since no motive has been assigned to the appellants, hence the whole prosecution case becomes doubtful.

21. It is also a relevant aspect of the matter that in criminal cases of direct evidence motive looses its value. PW-1 Kamlakant Bajpai has stated that accused Parikshit was armed with a DBBL gun, Ram Raj and Tirth Raj were armed with small guns. All the three accused exhorted and Parikshit fired a short at the injured with his gun, it hit Vidyakant who fell down. When his mother Ram Shri and Shri Ram ran towards Vidya Kant, then all the three accused appellants made indiscreet firing at them, due to which Ram Shri, Shri Ram and Vidya Kant sustained injuries.

22. Thus, according to PW-1, Parikshit Raj fired two shots and Ram Raj and Tirth Raj each fired a shot.

23. PW-2 is the injured witness namely Shri Ram Dixit who has stated that all the three accused came on the spot. All the three laughed at Vidyakant and passed some comments. Appellant Parikshit was holding a DBBL gun; whereas other accused were holding small guns, at which Tirth Raj exhorted and Parikshat Raj opened fire which hit Vidya Kant. As soon as this witness and Ram Shri proceeded towards Vidya Kant, Parikshat Raj again fired a shot, which hit this witness and Ram Shri. After that two or three other shots were fired. However, this witness does not say that Tirth Raj or Ram Raj fired any shot. Hence, the FIR version, version of PW-1 namely Kamlakant and version of PW-2 Shri Ram Dixit are not in consonance with each other as regards the firing of shots is concerned. PW-1 Kamlakant has admitted that Shri Ram is cousin of his father. Although the testimony of an interested witness cannot be thrown out on this score alone but it has to be scrutinized very carefully. Thus, it can safely be concluded that there was no overt act on the part of Tirth Raj and Ram Raj as per F.I.R. Although PW-1 in his cross-examination has mended his statement and has stated that initially Parikshat Raj fired two shots, later on, other two accused fired shots. But, when he was asked why this fact was not mentioned in the FIR, he could not state any valid reason for not doing so. Thus, the conviction of Tirth Raj and Ram Raj under Section 307 read with Section 34 IPC is bad in the eyes of law in as much as even the injured PW-2 Shri Ram Dixit has stated that the first shot was fired by Parikshat Raj which hit Vidya Kant and second shot was fired by Parikshat Raj which hit Ram Shri and this witness. If Ram Raj and Tirth Raj would have also fired any shot, there was no reason why the injured witness Shri Ram would not have seen Ram Raj and Tirth Raj firing. Thus, it is clear that conviction of Ram Raj and Tirth Raj under Section 307 read with Section 34 IPC cannot be sustained and has to be set aside.

24. Learned counsel for the appellants while castigating the impugned judgment has submitted that the learned Trial Court has not given any plausible reason to record the conviction of appellant Parikshat Raj under Section 307 IPC. He has further submitted that as per the prosecution evidence so far as the injuries sustained by the injured are concerned, it has not been proved that any of the injuries sustained by any of the injured was fatal to life.

25. Even as per the supplementary report no bony injury was seen. Only radio opaque shadow of metallic density was seen in the supplementary report of all the three injured. Although, PW-1 Kamlakant Bajpai has stated that he remained in hospital along with the injured for the whole night. On the next date, he met the Investigating Officer who recorded his statement.

26. PW-1 Kamlakant Bajpai has stated that in the place of incident there was no blood stains; whereas injured Shri Ram PW-2 has stated that the place of incident was blood stained and there were totally 4 to 5 shots. According to this witness there were pellets on the spot but Investigating Officer did not find any blood or pellets on the spot. Shri Ram PW-2 also states that the Investigating Officer met him at the police station on the date of occurrence; whereas he has stated that he remained in hospital throughout the night. PW-2, Shri Ram Dixit, has also asserted in his statement that Durga Prasad, the father of informant, injured Kamlakant and husband of Ram Shri was present, but nobody else except this witness has asserted the presence of Durga Prasad at the place of occurrence.

27. To justify a conviction under Section 307 IPC, it is not essential that bodily injuries capable of causing death should have been inflicted. Although the nature of injuries actually caused may often give considerable assistance. Coming to the finding as to the intention of accused, such intention may also be deduced from other circumstances and may even in some cases be ascertained without any reference at all to the actual wounds. This section makes a distinction between an act of accused and its result, if any. Such an act may not be attended by any result. So far as the present assault is concerned, still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this Section. An Attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof has been laid down by the Hon'ble Apex Court in State of Maharashtra vs. Balram Bama Patil, AIR 1983 SC 305.

28. It is true that merely because the injuries are simple in nature, it cannot be said that the offence made out would not all be covered under Section 307 I.P.C. It would all depend upon the facts of a given case. Intention has to be seen in every case.

29. A perusal of the injuries of Vidya Kant, Shri Ram and Ram Shri reveals that none of the injuries sustained by injured were on the vital part except one injury sustained by injured Ram Shri, which was on her skull.

30. In AIR 1982 SC 2013, Kundan Singh vs. State of Punjab, 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 P.W. 6 and P.W. 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 P.W. 6 and P.W. 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 P.W. 6 and P.W. 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."

31. I would also like to place the law laid down by the Apex Court in AIR 1996 SC 3236, Merambhai Punjabhai Khachar and others vs. State of Gujarat, wherein an attempt to commit murder by fire arm and a pellet hit the victim, however, 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 I.P.C."

32. A perusal of the statement of Dr. U.S. Bagga, PW-3, reveals that in the injury reports marked as Ext. Ka-3, Ka-4 and Ka-8 none of the injuries have been mentioned to be grievous or fatal to life, although all the injuries were kept under observation. Dr. U.S. Bagga, PW-3, was cross-examined on this point. He state that although the injury of injured Ram Shri was on the vital part but he could not opine whether the said injury was fatal to life or not. He has also stated that none of the injured were admitted in the hospital. Although the medical reports have been assailed by the accused appellants on the ground that Ram Prakash is a relative of the informant and was an employee at PHC Sumerpur where the injured persons were examined. But on the basis of this fact, it cannot be inferred that the injury reports were got manipulated in connivance with Ram Prakash because if the informant would have tried to manipulate the injury reports, they could easily have procured a report showing that the injuries were fatal for life and were grievous in nature.

33. From the aforesaid discussion, I am of the view that conviction of the appellant Parikshat Raj under Section 307 IPC cannot be sustained and he is liable to be punished for the offence under Section 324 IPC.

34. The learned counsel for the appellants has stated that the appellant Parikshat Raj has already remained in jail for more than 130 days and he has been retired from service on medical grounds. He also submits that the occurrence took place in the year 1990 i.e. about 26 years back and all along 26 years the appellants have been living under fear of being convicted, hence, a lenient view may be taken in the matter.

35. Looking to the facts of the case as well as submissions made by the learned counsel for the appellants, it is a case where a lenient view may be taken in the matter. Thus, the conviction of appellant Tirth Raj under Section 307 read with Section 34 IPC is not sustainable in the eyes of law and is hereby set aside. So far as the conviction of appellant Parikshat Raj under Section 307 IPC and sentence awarded to him is concerned, is also set aside for the reason that he has not caused any fatal injury to any of the injured, as discussed above. But appellant Parikshat Raj is found guilty for the offence punishable under Section 324 IPC and is sentenced to a fine of Rs.40,000/- and four months' simple imprisonment, which he has already undergone. The fine shall be deposited within two months from the date of judgement. Out of the fine so deposited Rs.10,000/- each shall be paid to injured Vidya Kant, Ram Shri and Shri Ram. In case any of them is not alive, it shall be paid to his legal representatives. If fine is not deposited within stipulated time, appellant Parikshat Raj shall undergo simple imprisonment for a period of four months.

36. The appellants are on bail. Their bail bonds are cancelled and sureties are discharged. However, provisions of Section 437Cr.P.C shall be complied with.

37. The appeal is allowed partly.

38. Let a a copy of this judgment be transmitted immediately to the concerned Trial Court immediately and send back the lower Court record to ensure compliance.

Order Date :- 22.7.2016

LBY