Devi Singh & Another vs State Of U.P.
2016 Latest Caselaw 2200 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
RESERVED ON 18.02.2016 
 
DELIVERED ON 04.05.2016
 
                                                                      (AFR)
 

 
Case :- CRIMINAL APPEAL No. - 220 of 1995
 

 
Appellant :- Devi Singh & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Kamlesh Kumar
 
Counsel for Respondent :- .../Govt. Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

Challenge in this appeal is to the judgment and order dated 7the February, 1995 passed by Third Additional District and Sessions Judge, Kanpur Dehat in ST No. 293 of 1993 (State V. Devi Singh and others) under Section 307 IPC, Police Station Kakvan, District Kanpur Dehat, whereby accused Asharfi Lal and Devi Singh were found guilty. Devi Singh was sentenced to seven years' rigorous imprisonment and fine of Rs.5,000/- under Section 307 IPC and Asharfi Lal was found guilty and sentenced to three years' rigorous imprisonment with Rs.5,000/- fine under Section 307/34 IPC with default stipulation.

2. The brief facts of the prosecution case are that on 15.09.1992 at 9:00 AM informant Awadhesh Kumar along with his father Sahukar were going to Tehsil Billhaur from their village to attend the date fixed in Court. They were being followed by Hari Pal. When they reached near the bridge of Pandav river, Devi Singh and Asharfi Lal who were on cycle, out of them Devi Singh was armed with a country-made pistol, fired at the father of informant with intent to kill. The fire hit at the back of Sahukar. Asharfi Lal was also willing to assault. He had exhorted. When the informant Hari Pal raised alarm, both the assailants turned back and fled away. Devi Singh and the informant were inimical since before. Two years prior a criminal case was lodged between the parties in which the parties had compromised. Now, the only dispute regarding one field was pending in which date was fixed when the incident occurred.

3. The prosecution examined PW-1 Awadhesh Kumar who is informant and eye witness of the incident. This witness proved the written report as Ext. Ka-1. PW-2 is Sahukar, the injured witness. PW-3 is SI Rajendra Bahadur Singh who was entrusted with the investigation. He recorded the statement of chik writer. He further recorded statements of the injured and informant. He proceeded to the place of incident, inspected the spot and prepared the site-plan, which was proved as Ext. Ka-3. The investigation ended into a charge sheet, which was proved by this witness as Ext. Ka-4. The chik report was scribed, which was proved by this witness as Ext. Ka-5. This witness further proved the copy of GD as Ext. Ka-6. Dr. Krishna Kumar Sharma is PW-4, who proved the medical report as Ext. Ka-7. He examined the injuries of the injured and found the following injuries on his person:-

1. Lacerated wound 1 cm x 0.7 cm x depth not probed on right side back, 18 cms below from right side root of neck and 2 cm away from back bone activity serum discharge present. No blackening. No tattooing. No charing around the wound K.U.O. Adv. X-ray.

2. Multiple abrasions in an area of 13 cm x 9 cm on both the sides of back just below injury No. 1 (size varying 0.2 cm x 0.3 cm).

4. After the close of prosecution evidence, the statements of accused persons were recorded under Section 313 Cr.P.C. in which they denied the occurrence and stated that they had been falsely implicated due to enmity.

5. After hearing the counsel for parties, the learned trial Judge convicted and sentenced the accused appellants as stated in para-1 of the judgment.

6. Feeling aggrieved, the appellants have come in the appeal.

7. I have heard Sri Kamlesh Kumar, learned counsel for the appellants, Sri Amrish Kumar, learned counsel for informant, learned AGA appearing for the State and perused the record of the case.

8. The learned counsel for appellants has submitted that in the present case, the FIR is delayed which makes the entire prosecution story doubtful and tainted with embellishment and exaggeration.

9. Lodging of FIR depends on many circumstances, number of injured, nature of injuries sustained because it would be the first preference to save the life of injured rather than to lodge a report. Once the injured was taken by Tempo to a distance of 13 kilometers, I think there is no delay in lodging the first information report, which is prompt.

10. As far as the occurrence is concerned, the counsel for informant and AGA have submitted that in the first information report as well as in the statements it has clearly been mentioned that accused Devi Singh with an intent to kill his father fired at the father of this witness namely Sahukar. In the cross-examination this witness has stated that accused and informant belong to the same family. It is on record that previously, a criminal case was pending between the parties in which the parties entered into a compromise. Thus, there is an admitted enmity between the accused and informant because in the first information report it has been stated that only dispute regarding one field was pending, whereas the other dispute has resolved.

11. As far as involvement of both accused is concerned, admittedly, Devi Singh fired at the father of informant. Both the accused persons were on cycle. In evidence PW-1 has stated that Asharfi Lal exhorted Devi Singh to kill the father of informant namely Sahukar.

12. Learned counsel for the appellants while castigating the impugned judgment has argued that the learned trial Court has not given any plausible reason to record the conviction of appellants for the offence punishable under Section 307 IPC. He has further submitted that the alleged injuries sustained by injured are neither dangerous nor fatal to life. Even according to the X-ray report nothing abnormal was detected in the supplementary report. No bony injury was seen in the X-ray report. The X-ray plate has not been brought on record by the prosecution. So the learned trial Court has grossly erred in convicting accused under Section 307 IPC. It has further been submitted that for the same offence i.e. 307/34 and 307 IPC accused Devi Singh is convicted for seven years' rigorous imprisonment; while accused Asharfi Lal is convicted for three years' rigorous imprisonment. Hence, accused persons could not have been convicted under Section 307 IPC.

13. Per contra, the learned AGA while supporting the impugned judgment has contended that it is a broad day light case having direct evidence against accused who with strong motive assaulted the injured persons. Thus, there is no illegality, factual or legal in the judgment of learned trial Court and the appeal is liable to be dismissed.

14. Before proceeding to analyze the evidence available on record to appreciate the arguments advanced by the learned counsel for parties, it would be in fitness of things if the statements given by the prosecution witnesses in the cross-examination in chief are noted in brief.

15. PW-1, Awadhesh Kumar, he is said to be eye witness. He has stated that on 15.09.1992 he was going along with his father to Tehsil Billhaur for his case. Suddenly at 9 AM, when he and his father reached near the bridge of Pandav River, Devi Singh and Asharfi Lal came on cycle. Asharfi Lal exhorted and said that Sahukar should be killed, at this Devi Singh fired at Sahukar with intention to kill him. The shot hit Sahukar on his back. Har Pal Singh was following these people and hue and cry was raised, then, Devi Singh Asharfi Lal fled away on cycle. The injured was taken in injured condition by Tempo. This witness himself wrote a written report and lodged with police station. After lodging the report, his father was sent to hospital for treatment. From the local hospital, he was referred to Urchhala Hospital for further treatment. PW-2 is Sahukar, the injured witness. He has stated that on 15.09.1992 he was going to attend the date fixed in Court. He was accompanied by his son Awadhesh, PW-1. The father and son were being followed by Har Pal. When they reached near the bridge of Pandav River Devi Singh and Asharfi Lal came from behind. Asharfi Lal said that Sahukar should be killed. At this Devi Singh fired at Sahukar with intention to kill him. He fired with country made pistol, the shot hit him at his back. He was taken in injured condition by his son in Tempo and report was got lodged. Later, he was referred to the Hospital where he was treated. He was admitted in the Hospital for 8-9 days. He has further stated that litigation is going on between accused and injured. PW-3 is SI Rajendra Bahadur Singh, who conducted the investigation. He recorded statements of chik writer. Further, he recorded the statement of informant and injured. He inspected the spot and recorded the statement of Har Pal. This witness prepared the site plan which was proved by him as Ext. Ka-3. He arrested accused persons and recorded their statements. He proved the chik report and copy of GD as Ext. Ka-5 and Ka-6. This witness also proved the charge sheet as Ext. Ka-4. PW-4 is Dr. Krishna Kumar Sharma who examined the injuries which have been stated earlier.

16. A perusal of the original record of learned trial Court in particular the evidence of prosecution witnesses, it transpires that the incident has been fully proved through the statement of PW-1, Awadhesh Kumar and injured witness PW-2, Sahukar.

17. Presence of the eye witness near the place of occurrence at the relevant time is probable and has been duly proved. There are no material contradictions or inconsistencies in the testimony of PW-1 and PW-2. As far as the lodging of FIR is concerned, the incident took place at 9:00 AM on 15.09.1992 and report was lodged on the same day at 11:20 AM, the distance of police station from the place of occurrence being 13 kilometers. The injured is said to have been taken to hospital in Tempo. The injured was medically examined at the hospital by doctor on the same day i.e. 15.09.1992 at 3:00 PM. Thus, there is no delay in reporting the crime to the police station and the medical examination of injured was also prompt.

18. PW-2, Sahukar, has specifically stated that even prior to this incident accused persons had assaulted the informant and injured but the parties had entered into compromise. Both PW-1 Awadhesh and PW-2 Sahukar have stated that the shot hit the injured on his back. It has been further submitted on behalf of the appellants that accused Asharfi Lal has been falsely implicated and he could not have been convicted with the aid of Section 34 IPC as no role was assigned to him and there was no overt act on his part.

19. In 2012 Crl. LJ 2713: Mahesh and another Vs. State of Madhya Pradesh it has been laid down that Section 34 of IPC provides that if two or more persons intentionally do an act jointly, the position in law would be just the same as if each of them has done the offence individually by himself, then, this doctrine of constructive criminal law is well established in law. The very fact that appellant Asharfi Lal exhorted Devi Singh to fire upon injured so as to kill him, speaks volume and also establishes that he has done the act intentionally.

20. The counsel for appellants has submitted that injury No. 2 of injured being multiple abrasion on the back has not been explained by the prosecution. As per the prosecution case, the object i.e. the injured was in a moving position when he was fired at, hence non explanation of injury No. 2 would not be fatal for the prosecution case. Although, Dr. Krishna Kumar Sharma has stated that both the injuries were kept under observation but nothing abnormal was detected in the supplementary report. PW-2 has stated that he was hospitalized for 8-9 days but neither the injured nor the doctor has stated as to what kind of treatment was given to him as an indoor patient in hospital. Further a perusal of injury No. 1 reveals that it has been noted in the medical report that "depth not probed". No bed head ticket of injured has been filed which could have throw some light on the line of treatment given to the injured. In these circumstances, it was imperative for the prosecution to lead evidence about the nature of injuries, which could have enable the Court to examine and assess the gravity of injuries. Dr. Krishna Kumar, PW-4, has not stated a word that these injuries sustained by the injured could be fatal or dangerous for the life of injured. Thus, there is nothing on record to show that the present injuries on the person of injured were actually fatal for life.

21. 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.

22. 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.

23. It also emerges that the sole injury, even if accepted to be attributed to the appellant, was simple in nature and there is no iota of evidence to show that this injury was sufficient in the ordinary course of nature to cause death. Resultantly, the evidence can be said to indicate involvement of the appellant in an offence punishable for simple hurt with a deadly weapon like country-made pistol.

24. In the facts and circumstances of the case, it is difficult to accept that knowledge or intention can be attributed to the appellants about the likely death of the victim by causing the injuries, because they have not repeated the attack particularly when there was no possible protest either from the injured or the eye witnesses. If the intention would have been to kill the injured, accused Devi Singh could have repeated the injuries and could have easily killed the injured.

25. 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."

26. 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.

27. In the case of Ramesh vs. State of U.P., AIR 1992 SC 664, wherein the injury was found on the back of the injured. He 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, was partly allowed by the Apex Court. His conviction was altered into Section 324 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.

28. Thus, there was only one lacerated wound on the body of injured caused by fire-arm which was on the back but there was no repeat of the injury nor there was any intervening circumstance to do away with the life of injured. There was no repeat shot. Thus, I am of the view that conviction of the appellants under Sections 307 and 307 read with Section 34 IPC cannot be sustained and the appellants are liable to be convicted for the offence punishable under Section 324 IPC.

29. Perusal of record shows that occurrence relates to the year 1992. Presently, accused Asharfi Lal is more than 91 years of age and accused Devi Singh is more than 46 years of age. Devi Singh is being convicted simplicitor under Section 324 IPC; whereas Asharfi Lal is being convicted under Section 324 IPC read with Section 34 IPC by this Court. Hence, for the same offence there cannot be two types of sentences to two accused appellants. In this view of the matter, at this juncture of time, when one accused namely Asharfi Lal is more than 91 years of age and occurrence took place about 24 years back, sentencing the accused appellants to a custodial sentence would not serve the end of justice.

30. In view of the aforesaid reasons, the appeal is partly allowed. The conviction of appellants under Sections 307 and 307 read with Section 34 IPC and sentence awarded to them are set aside. However, appellant Asharfi Lal is found guilty for offence punishable under Section 324/34 IPC and appellant Devi Singh is found guilty for the offence punishable under Section 324 IPC and both appellants are sentenced to a fine of Rs.15,000/- each. The fine shall be paid within two months from the date of judgement. If the fine is not paid within the stipulated time, each appellant shall undergo simple imprisonment for a period of four months. The fine so deposited shall be paid to the injured and in case, he is not alive it shall be paid to his legal representatives.

31. Appellants are on bail. Their bail bonds are cancelled and sureties are discharges. This order shall be complied with accordingly.

32. Let a copy of this judgment be sent immediately to the trial Court concerned for compliance.

Order Date :- 04.05.2016

LBY