Purushottam Pandey S/O Ram Jag ... vs State Of U.P.
2016 Latest Caselaw 6452 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED ON 29.09.2016 
 
DELIVERED ON 06.10.2016
 
                                                                   AFR
 

 
Case :- CRIMINAL APPEAL No. - 210 of 1997 
 

 
Appellant :- Purushottam Pandey S/O Ram Jag Pandey 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- S.N.Misra,Shiva Nand Pandey 
 
Counsel for Respondent :- Govt.Advocate
 
Hon'ble Mrs. Ranjana Pandya, J.

1. Challenge in this appeal is to the judgment and order dated 07.04.1997 passed by the Second Additional Sessions Judge, Faizabad in ST No. 430 of 1986 (State Vs. Purshottam and others) under Sections 324, 307 IPC, Police Station Poora Kallander, District Faizabad whereby accused were found guilty and sentenced to five years rigorous imprisonment and Rs.1,000/- fine under Sections 307/34 IPC with default stipulation.

2. Filtering out unnecessary details, the prosecution case is that on 18.11.1983 the informant Banshidhar Mishra got lodged a written report that he is resident of village Saranpur, Police Station Mahrajganj, District Faizabad. He had come to his daughter's residence at village Maulavi ka Purwa to sow potato seeds. On 18.11.1983 at 7:00 AM a bomb was blasted by Purshottam and Balram at Radhey Shyam, due to which Radhey Shyam sustained injuries on his left tample and left hand. He was taken for medical examination. After getting him medically examined, report was lodged. On the basis of this written report, chik report was lodged by Head Constable Ram Raj Tiwari, PW-6, who proved the chik report as Ext. Ka-4 and copy of the GD as Ext. Ka-5. The blood stained shirt of injured was submitted at the police station which was taken into custody and a memo was prepared which was proved by this witness as Ext. Ka-6. Investigation was entrusted to PW-7, SI Girish Chand Tiwari. He copied the chik report and the GD coupled with the injury report in the Case Diary. On 18.11.1983 he recorded the statement of Ram Achal Pandey, inspected the spot on the pointing out of the informant and prepared the site plan which was proved by him as Ext. Ka-7. The remaining investigation was conducted by SI Harendra Pratap Singh, PW-5 who recorded the statement of Radhey Shyam and Ram Kirath on 18.05.1983. On 18.05.1984 he recorded the statement of Banshidhar. On 23.07.1984 he recorded the statement of accused. The investigation ended into a charge sheet which was proved by this witness as Ext. Ka-3.

3. The injured was examined by PW-3, Dr. B.C. Agarwal on 18.11.1983. He found the following injuries on the body of the injured :-

(1) Abrasion over left side of Penna 4 cm x 1 cm, bleeding present.

(2) Lacerated wound 4 cm x 2 cm over left lat. Side of fore-arm, 8 cm above to left elbow joint, bleeding present.

(3) Lacerated wound over left shoulder joint 2-1/2 cm x ½ cm.

(4) Multiple abrasion over outer and lat. Aspect on shoulder left side, left upper arm, fore-arm left side, dorsum of head.

(5) Lacerated wound 2 cm x 0.5 cm, 4 cm above to Injury No. 2, bleeding present.

(6) Lacerated wound 1-1/2 cm x 0.5 cm, 2 cm medial to Injury No. 2.

4. All the injuries were simple in the nature and were caused by some explosive weapon like bomb blast. The X-ray of injury No. 4 was advised. This witness proved the injury report as Ext. Ka-2.

5. Two witnesses of fact were also examined by the prosecution. PW-1 is Ram Kirat who is said to be a witness of fact. PW-2 is Banshidhar, the informant and also eye witness who proved the written report as Ext. Ka-1.

6. After examining seven witnesses, the prosecution closed its evidence and the statements of accused were recorded under Section 313 Cr.P.C in which the accused denied the occurrence and stated that they were falsely implicated due to enmity. However, no evidence in defence was adduced.

7. The learned Lower Court convicted and sentenced the accused appellants as narrated in para -1 of the judgment.

8. Feeling aggrieved the accused appellants have come in the present appeal before this Court.

9. Heard learned counsel for accused appellants, learned AGA and perused the Lower Court record.

10. Learned counsel for the appellants castigating the impugned judgement has argued that the learned trial court has not given any convincing and cogent reasons to record the conviction of the appellant for the offence punishable under Section 307 I.P.C.; the alleged injuries sustained by the injured are simple, neither dangerous nor fatal to life; that no X-ray plate regarding the injuries has been proved by the prosecution, thus, the learned trial court has grossly erred in convicting the accused appellant for the offence punishable under Section 307 I.P.C., that in the facts and circumstances of the case, at the most an offence punishable u/s 324 IPC is made out.

11. Per contra, learned AGA supporting the impugned judgment has contended it is a broad-day light case having direct evidence with strong motive against the accused, so there is no illegality factual or legal in the findings recorded by the learned trial Court and the appeal is liable to be dismissed.

12. Before proceeding to analyse the evidence on record, to appreciate the arguments advanced by the learned counsels for the parties, it would be in the fitness of things, if the statements given by the prosecution witnesses in their examination-in-chief are noted in brief.

13. PW-1 is Ram Kirat who is said to be eye witness. He has stated that at 7:00 AM when he reached the spot, he saw the accused persons throwing a bomb towards Radhey Shyam which was blasted and hit him on his temple and hand. He has further stated that there was a dispute between the parties relating to a wall due to which the occurrence took place and Radhey Shyam became unconscious and was taken to the hospital. PW-2, the informant, has also stated that the accused persons hit a bomb at Radhey Shyam which exploded and caused injuries to him on his temple and hand. The injured was taken to the hospital and report was lodged.

14. On perusal of the original record of learned Trial Court particularly the evidence of PW-1, Ram Kirat and PW-2, Radhey Shyam, the presence of eye witnesses 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. The occurrence took place at 7:00 AM on 18.11.1983 whereas the report was lodged on the same day at 17:30 hours, the police station being six kilometers away from the place of occurrence.

15. Perusal of the medical report reveals that the injured was medically examined on 18.11.1983 at 10:00 AM. He was taken to the hospital by his father. The injured was medically examined before lodging the FIR, is a fact that can be digested. Thus, there is no delay in lodging the FIR and the medical examination of the injured is also prompt.

16. Dr. V.C. Agrawal, PW-3, has also stated that the injuries on the injured could be caused by the blast of explosive substance. Perusal of the injury report Ext. Ka-2 makes it clear that the doctor advised X-ray of the left upper arm which injury was kept under observation, but there is no X-ray plate or supplementary report to prove the nature of injury.

17. To justify a conviction under 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be gathered from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but 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 as has been laid down in State of Maharashtra Vs. Balram Bama Patil AIR 1983 SC Page 305.

18. It is true that merely because the injuries are simple in nature, it cannot be said that the offence made out would not fall under Section 307 of Indian Penal Code. It would all depend upon the facts of a given case. Intention has definitely to be seen.

19. It also emerges that all the injuries, even if accepted to be attributed to the appellants, were simple in nature and there is no iota of evidence to show that they were sufficient in ordinary course of nature to cause death. Resultantly, the evidence can be said to indicate involvement of the appellants in an offence punishable for simple hurt with a deadly weapon like country made pistol. In the facts and circumstances of the case, it is difficult to accept that knowledge or intention can be attributed to the appellant about the likely death of the victim by causing the injuries, because they had not repeated the blasts 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 then the appellants must have repeated the blasts by bomb.

20. In the case of Ramesh Vs. State of U. P. AIR 1992 SC Page 664, where a single injury was found on the back of the injured, the appeal of accused-appellants who was tried along with two others was convicted u/s 307/34 IPC 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 IPC and the sentence was reduced to the period already undergone with fine of Rs. 3000/-, which was to be paid to the complainant as compensation.

21. Learned counsel for the appellants has placed heavy reliance on the case of Kundan Singh Vs. State of Punjab AIR 1982 SC Page 213, wherein 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 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 ha may be set at liberty forthwith."

22. In the case of Merambhai Punjabhai Khachar and others Vs. State of Gujarat AIR 1996 SC Page 3236 there was an attempt to commit murder by fire arm and a pellet hit the victim, however, the Apex Court held that Section 307 IPC cannot be held to have been satisfied and the conviction was altered to Section 324 IPC. In the instant case as regards the injuries are concerned, there is no evidence on record to show that these injuries could have been fatal for life of the injured or that the injuries were caused by the appellants with intention to kill the injured. Besides, the injuries on the body of injured were on non-vital parts of the body. Thus, it clearly shows that there was no intention of the accused appellants to kill the injured. The injured sustained simple injuries on the non-vital parts of his body. Thus, I am of the view that conviction of the appellants under Section 307 read with Section 34 IPC cannot be sustained. But, in fact, the appellants are liable to be convicted for the offence punishable under Section 324 IPC.

23. As far as punishment of the accused under Section 324 I.P.C. is concerned Section 4 of the Probation of Offenders Act reads as follows:-

"4. Power of court to release certain offenders on probation of good conduct.-(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:

Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2)Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.

Even, Section 360 Cr.P.C. confers the powers on the Court to order to release on probation of good conduct or after admonition.

24. In view of the aforesaid reasons, the appeal is partly allowed. The conviction of appellants namely Purushottam Pandey and Bal Ram Pandey under Section 307 read with Section 34 IPC and sentence awarded to them are set aside. However, they are found guilty for the offence punishable under Section 324 read with Section 34 IPC and are convicted thereunder. They shall get benefit of Section 4 of Probation of Offenders Act. They shall file two bonds to the tune of Rs.20,000/- each coupled with personal bonds to the effect that they shall not commit any offence and shall be of good behaviour and shall maintain peace during the period of one year. If there is breach of any of the conditions, they shall subject themselves to undergo one year rigorous imprisonment each. The bonds aforesaid shall be filed by the accused appellants within two months from the date of judgement. The time for submitting the bail bonds shall not be extended on any ground whatsoever.

25. Let a copy of this judgment be sent to the Court concerned for compliance.

Order Date:-06.10.2016

LBY