Anant Man Singh And Others vs State Of U.P.
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. -  46
 

 
Case :- CRIMINAL APPEAL No. - 5185 of 2002
 

 
Appellant :- Anant Man Singh And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.B. Sahai,Amreesh Sahai,Kunwar Bhaskar Parihar,Shiv Narayan Singh,Vikas Sharma,Vikash Sharma,Shiv Narayan Singh Aq/S
 
Counsel for Respondent :- Govt. Advocate,Satish Kumar Mishra
 

 

 
Hon'ble Virendra Kumar Srivastava,J.

1. This criminal appeal has been preferred against judgement and order dated 26.11.2002, passed by Addl. Sessions Judge, Court no. 2, Fatehpur, in Session Trial No. 569 of 1996 (State Vs. Shivram and others) arising out of Case Crime No. 91 of 1996, u/s 307/34 I.P.C., P.S. Hussainganj, Distt. Fatehpur, whereby the accused-appellants, Anant Man Singh and Ram Pratap Singh (hereinafter referred as 'accused-appellants'), have been convicted u/s 307/34 I.P.C. and sentenced for rigorous imprisonment of 7 years and fine of Rs. 2,000/- to each and in case of default in payment of fine with an additional period of simple imprisonment of one month.

2. Briefly stated the facts of this case are that the accused-appellants Anant Man Singh @ Pappu Singh, Ram Pratap Singh and other co-accused Shivram Singh are the resident of Village- Jamarawa, P.S. Hussainganj, District- Fatehpur. Dharmendra Pratap Singh (P.W. 1) and Bachan Singh (P.W. 2) are also resident of the same village. According to the prosecution case, before six years of the said occurrence, Rajau Singh s/o co-accused Shivram Singh was murdered by some unknown person. Co-accused Shivram Singh had doubt that Rajau was murdered by Bachan Singh (P.W. 2).

3. On 16.6.1996 Dharmendra Pratap Singh (P.W.1), Bachan Singh (P.W. 2) and his son Satyendra Singh were present at local market Jamarawa and purchasing some grocery items from the grocery shop of Salik Ram at 5:00 p.m. Meanwhile, appellant-accused Anant Man Singh armed with country made pistol, Ram Pratap Singh armed with single barrel 12 bore licensed gun of co-accused Shivram Singh and co-accused Shivram Singh armed with lathi came there. Co-accused Shivram Singh exhorted appellant-accused Ram Pratap Singh and Anant Man Singh @ Pappu to kill Bachan Singh (P.W. 2). On his exhortation Ram Pratap Singh with his gun and Anant Man Singh with his tamancha fired shot at Bachan Singh (P.W. 2) which caused injuries on his head and right thigh. After causing the injuries co-accused Shivram Singh and accused-appellants fled away from the place of occurrence. At the time of occurrence Bachan Singh (P.W. 2) was also carrying his 12 bore licensed gun with him but he could not fire in his defence as there was crowd in the market.

4. The occurrence was witnessed by Satyendra Singh and Dharmendra Pratap Singh (P.W.1) sons of Bachan Singh (P.W. 2), Vijay Pal Singh s/o Rati Pal Singh, Village- Sahima Pur, Man Singh s/o Chhota Singh, Village- Seer Ibrahim and so many other persons present at the place of occurrence. After the occurrence, Dharmendra Pratap Singh (P.W. 1) got the report of occurrence (Ex.Ka 1) scribed at place of occurrence by one Shailendra Kumar Singh and went to Police Station- Hussainganj with his injured father Bachan Singh (P.W. 2) and filed written report on the same day. H.C. Ram Autar (P.W. 3) prepared chik FIR (Ex. Ka 2) on 16.6.1996 at 6:40 p.m. on the basis of written report (Ex.Ka 1) given to him.

5. Bachan Singh (P.W. 2) was sent for medical examination by Police to district hospital, Fatehpur. Dr. P.S. Mishra (P.W. 5) examined Bachan Singh (P.W. 2) and found following injuries on his body:-

"(i) Lacerated wound of 1.5 cm X 0.5 cm on the parietal arc. 7 cm above left ext. ear, scalp deep.

(ii) Lacerated wound of 2 cm X 0.5 cm on lt. parietal arc, 9cm above left exterior ear scalp deep.

(iii) Lacerated wound of 1cm X 0.5cm on top of head, 10cm above left exterior ear scalp deep.

(iv) Multiple wound of fire arm entry of 15cm X 8cm on anterior aspect of right thigh , 0.5cm to 0.25cm in size, bleeding & tattooing present."

According to him these injuries could have been caused on 16.6.1996 at 5:30 p.m. by fire arm e.g. gun and country made pistol and the injury present on his head may be fatal to the life.

6. Investigation of the case was taken over by S.I. Abdullah Khan (P.W. 6) who recorded the statement of injured witness and other witnesses, inspected the place of occurrence, prepared the site plan (Ex.Ka 6), took into custody blood stained undershirt, Kurta and gamachha wore by Bachan Singh (P.W. 2) at the time of occurrence, prepared seizure memo (Ex.Ka 7) and after investigation filed charge sheet (Ex.Ka 8) before the concerned Magistrate against the accused-appellants and co-accused Shivram Singh.

7. Learned Magistrate took the cognizance of the case and committed the case to the Sessions Judge, Fatehpur as the offence was triable by the Session Court after providing the copies of relevant papers as required u/s 207 Cr.P.C. Learned Sessions Judge, after hearing the parties, framed the charge u/s 307 I.P.C. read with 34 I.P.C. against the appellants and other co-accused Shivram Singh which they pleaded not guilty and claimed for trial.

8. During trial, in order to prove its case, prosecution has examined two eyewitnesses Dharmendra Pratap Singh (P.W. 1) and Bachan Singh (P.W. 2) and four formal witnesses H.C. Ram Autar (P.W. 3), Dr. K.P. Singh (P.W. 4), Dr. P.S. Mishra (P.W. 5) and S.I. Sri Abdullah Khan (P.W. 6).

9. After the prosecution evidence statements of accused-appellants and other co-accused Shivram Singh u/s 313 Cr.P.C. were recorded by the trial Court. They denied the prosecution case and stated that they had been falsely implicated due to previous enmity. No evidence was produced by accused-appellants in their defence to rebut the prosecution evidence.

10. The trial Court after hearing arguments of both the parties acquitted the co-accused Shivram Singh and convicted the appellant-accused Anant Man Singh and Ram Pratap Singh u/s 307 read with 34 I.P.C. and sentenced them for rigorous imprisonment of 7 years and fine of Rs. 2000/- to each of them and in default of payment of fine they were further directed to under go one month imprisonment. Aggrieved by the impugned judgement and order the accused-appellants have preferred this appeal.

11. Heard Sri Vikas Sharma assisted by Sri Kunwar Bhaskar Parihar, learned counsel for appellant no. 1, Sri Shiv Narayan Singh, learned counsel for appellant no. 2, Sri Satish Kumar Mishra, learned counsel for the complainant and learned AGA for the State and perused the record.

12. Learned counsel for the appellants have submitted that the F.I.R. is anti-timed. Appellant-accused are innocent; the alleged occurrence was taken place at different time and place and they have been falsely implicated due to previous enmity. Alleged occurrence was said to happened in a crowded place wherein only Bachan Singh (P.W. 2) was injured in the presence of so many people and no other person was injured. At the time of occurrence, Bachan Singh (P.W. 2) was carrying his licensed gun, his sons were also present with him at the place of occurrence but no effort was made by them to save Bachan Singh (P.W. 2) or to counter attack on the accused persons. They have further submitted that there were so many persons at the time of alleged occurrence but no independent witness was produced by the prosecution. No pellets were found either from the place of occurrence or from the body of injured. The ocular evidence is not supported by the medical evidence. On injury no. 4 tattooing was present which means that this injury would have been caused from very closed range and not from distance of 5-6 steps as stated by eyewitnesses. The case of prosecution is highly doubtful and improbable. They have further submitted that even if the prosecution case is found true, only offence u/s 324 IPC could be proved and accused-appellants are entitled for the benefit u/s 4 of Probation of Offenders Act. The judgment and order passed by the learned trial court is liable to be set aside.

13. Per contra, learned AGA for the State and learned counsel Sri Satish Kumar Mishra for informant have submitted that the F.I.R. in this case has been lodged without any delay. The prosecution case is proved beyond reasonable doubt on account of statement produced by the prosecution including the injured witness Bachan Singh (P.W. 2). The prosecution case cannot be thrown out on account of non-examination of any independent witness as well as non-presence of pellets at the place of occurrence. Ocular evidence is fully supported by medical evidence. Appeal is liable to be dismissed. Learned counsel for the complainant has relied on the law laid down by the Hon'ble Supreme Court in State of Madhya Pradesh Vs. Saleem @ Chamaru, 2005 Law Suit (SC) 939.

14. In the light of the argument advanced by both the parties, the crucial point that arises for consideration in this appeal is whether the prosecution has been able to prove its case against accused-appellants beyond all reasonable doubts.

15. Dharmendra Pratap Singh (P.W. 1) who is the son of Bachan Singh (P.W. 2) has stated that appellant-accused Ram Pratap Singh and Anant Man Singh @ Pappu Singh and other co-accused Shivram Singh are related to each other. At the time of occurrence i.e. 5:30 p.m. he, his father and his younger brother Satyendra Singh had gone to local market and after purchasing vegetable they were purchasing grocery items from the grocery shop of Salig Ram Pandey. At that time co-accused Shivram Singh armed with lathi, accused-appellant Ram Pratap Singh armed with single barrel licensed gun of co-accused Shivram Singh and accused-appellant Anant Man Singh armed with tamancha (country made pistol) appeared at the place of occurrence. He has further stated that on seeing his father, co-accused Shivram Singh exhorted to kill him whereupon accused-appellants Ram Pratap Singh and Anant Man Singh fired at his father with the intention to cause his death by their respective fire arms. He has further stated that one fire shot hit the head and another the right thigh of his father. According to this witness, though his father was carrying his single barrel licensed gun, to avoid any injury to any innocent person, he could not fire. The accused-appellants fled away towards west by threatening. He has further stated that the said occurrence was witnessed by Vijay Pal Singh, Man Singh and Satyendra Singh. According to him five years ago of this occurrence, Rajau Singh s/o Shivram Singh (co-accused) had been missing whose dead body was located after 20-25 days. Co-accused Shivram Singh had doubt that murder of his son Rajau Singh might have been caused by Bachan Singh (P.W. 2). According to him since then several attempts were made by the accused persons to kill his father through criminals. He has further stated that when accused-appellants fled away from the place of occurrence, he dictated tahreer (written report) (Ex.Ka 1) of the occurrence to Sailesh Singh, signed it, went to concerned police station with his injured father and submitted it to Munshi Ji (Head constable) and got the case registered.

16. Bachan Singh (P.W. 2), injured witness has also stated that on the day of occurrence at 5:00 p.m. he was purchasing some grocery items from the shop of Salig Ram and his sons Dharmendra Pratap Singh (P.W. 1) and Satyendra Singh were also present with him. Meanwhile, accused-appellant Anant Man Singh armed with tamancha (country made pistol), Ram Pratap Singh armed with gun of Shivram Singh and co-accused Shivram Singh armed with lathi appeared at the place of occurrence. Shivram Singh said that they got their enemy and exhorted to kill him whereupon accused-appellant Anant Man Singh and Ram Pratap Singh fired at him with their respective weapons which caused injuries on his head and right thigh. He has further stated that he had also a licensed gun with him at that time but as soon as he tried to take position, accused-appellants fled away towards west. According to him the occurrence was witnessed by Vijay Pal Singh and Man Singh in addition to his sons. He has further stated that one Rajau Singh who was criminal, was son of co-accused Shivram Singh, had been missing 5-6 years before the said occurrence, his dead body was found at chaufataka (railway crossing). Shivram Singh had doubt that his murder was committed by him and on that very account co-accused Shivram Singh was inimical with him and due to that enmity he had attacked at him. He has further stated that after the occurrence he had gone to police station and got medically examined thereafter.

17. Dr. P.S. Mishra (P.W. 5) has deposed that on 16.6.1996 he was posted as Medical Officer at district hospital, Fatehpur and examined the injuries present on the body of Bachan Singh (P.W. 2) who was brought before him by police of P.S. Hussainganj. (Details of injuries found by this witness at the time of examination has been mentioned in preceding paragraph of this judgment). According to him all injuries were fresh at the time of examination. Injury no. 4 could have been caused by fire arms whereas injury nos. 1 to 3 were kept under observation to verify the nature of injuries. He has further stated that he had prepared injury report (Ex.Ka 5) in his own handwriting and signature at the time of examination. According to him all injuries present on the body of injured could have been caused on 16.6.1996 at 5:30 p.m. by fire arm i.e. gun and tamancha (country made pistol) and injuries present on his head would be fatal to life. In cross-examination this witness has stated that he had not prepared supplementary injury report and could not state whether injury nos. 1, 2, 3 and 4 would have been caused by single fire shot or separate fire shots as he is not a ballistic expert. According to him all injuries were not possible by a single fire shot and it was also not possible to fabricate such type of injuries with tweezers. There might be six hours difference in the duration of injuries from the time of examination. Lastly, he has deposed that he could not state the distance of fire though injury no. 4 could have been caused from a distance of 3 feet and rest injuries could have been caused from a distance more than that.

18. Dr. K.P. Singh (P.W. 4) has stated that on 17.6.1996 he was posted at district hospital, Fatehpur as radiologist. On that day X-ray of head of Bachan Singh (P.W. 2) was conducted in his supervision. He has further stated that no bony abnormality was found in his head only three rounded radio-opaque shadow of metallic were seen. According to him he had prepared X-ray report (Ex.ka 4) in his own hand writing.

19. H.C. Ram Autar (P.W. 3) has stated that on 16.6.1996 he was posted as Head Moharrir at P.S. Hussainganj and on that day at 18:40 p.m. he had prepared the F.I.R. chik (Ex.Ka 2) in his own hand writing and signature on the basis of teharir (Ex.ka 1) filed by Dharmendra Pratap Singh (P.W. 1) and also entered that information in general diary, at report no. 26 dated 16.6.1996 (Ex.ka 3).

20. S.I. Abdullah Khan (P.W. 6) is the investigating officer. He has stated that on 16.6.1996 he was posted as Sub-Inspector at P.S. Hussainganj, District- Fatehpur and investigated Case Crime No. 91/1996 u/s 307 lodged on written report filed by Dharmendra Pratap Singh (P.W. 1). According to him on that day he had recorded the statement of injured Bachan Singh (P.W. 2), reached at the place of occurrence and also recorded the statement of Dharmendra Pratap Singh (P.W. 1) and eye witness Satyendra Singh, inspected the place of occurrence and prepared site plan (Ex.ka 6). He has further stated that during investigation he had recorded the statements of Man Singh, Vijay Pal Singh and also taken into his custody blood stained undershirt, kurta and gamachha wore by the Bachan Singh (P.W. 2) at the time of occurrence and prepared seizure memo (Ex.Ka 7). He had also recorded the statements of accused persons during investigation and filed charge sheet (Ex.Ka 8).

21. So far as the submission of the learned counsel for the appellants that F.I.R. is anti timed, is concerned, chik F.I.R. (Ex.Ka 2) shows that it was prepared on 16.6.1996 at 6:40 p.m. H.C. Ram Autar (P.W. 3) is a witness who has prepared chik F.I.R. (Ex.Ka 2). According to him on 16.6.1996 he was posted as Head moharrir at P.S. Hussainganj, District Fatehpur and had prepared chik F.I.R. (Ex.Ka 2) at 6:40 p.m. on the basis of tehrir (Ex.Ka 1) submitted by Dharmendra Pratap Singh (P.W. 1). He has further stated that he had entered the said information in G.D. report (Ex.Ka 3). This witness was not cross-examined by defence to create any doubt regarding date and time of registration of chik F.I.R. (Ex.Ka 2) or entry in G.D. report (Ex.Ka 3) by him. F.I.R. further shows that distance of P.S. Hussainganj from place of occurrence is 8 kms. Dharmendra Pratap Singh (P.W. 1) in his examination-in-chief has stated that after the incident he got report of occurrence (Ex.Ka 1) scribed at the place of occurrence by one Sailesh Kumar Singh. In cross-examinaton he has further stated that in scribing the F.I.R. (Ex.Ka 1) 20-25 minutes might have been taken. From perusal of the injury report (Ex.ka 5) of Bachan Singh (P.W. 2) and statement of Dr. P.S. Mishra (P.W. 5), it is clear that injured Bachan Singh was carried at district hospital, Fatehpur for medical examination by police personnel of P.S. Hussainganj, Fatehpur and medical examination of Bachan Singh (P.W. 2) was conducted on 16.6.1996 at 11:10 p.m. It is clear that the F.I.R. was registered just after one hour of the occurrence. The injury report further shows that fatal injuries were caused to Bachan Singh (P.W. 2) wherefrom blood was oozing. Dharmendra Pratap Singh (P.W. 1) has further stated that he had not got his father's injuries treated before reaching at district hospital, Fatehpur. Dharmendra Pratap Singh (P.W. 1) and Bachan Singh (P.W. 2) were put on a lengthy cross-examination by the defence but nothing has come out in their cross-examination to create any doubt regarding the time of registration of F.I.R. The statements of prosecution witnesses P.W.-1 and P.W.-2 that injured witness Bachan Singh (P.W. 2) was carried immediately to P.S. Hussainganj and the F.I.R. (Ex.Ka 2) was lodged at 6:40 p.m. shows that their statement is natural, trustworthy and reliable. The argument of learned counsel for the appellants, thus has no force.

22. As regards the argument advanced by the learned counsel for the appellants that Bachan Singh (P.W. 2) was attacked and was injured at different time and place of occurrence by some unknown person and accused-appellants have falsely been implicated due to previous enmity, is concerned, from perusal of material on record it is clear that the prosecution case is based on the evidence of Bachan Singh (P.W. 2) injured witness and Dharmendra Pratap Singh (P.W. 1) who is the son of Bachan Singh (P.W. 2). As per prosecution case the alleged occurrence was caused on 16.6.1996 at 5:30 p.m. This is day light occurrence in which Bachan Singh (P.W. 2) has received a serious fire arm injuries on his head and right thigh. Dharmendra Pratap Singh (P.W. 1) in his examination-in-chief has clearly deposed that on 16.6.1996 at the time of occurrence i.e. 5:30 p.m. he was present alongwith his father and his younger brother Satyendra Singh at the place of occurrence i.e. grocery shop of Salig Ram. According to him meanwhile co-accused Shivram Singh armed with lathi, accused-appellant Ram Pratap Singh armed with a single barrel licensed gun of Shivram Singh and appellant- Anant Man Singh armed with tamancha (country made pistol), appeared there and on the exhortation of co-accused Shivram Singh, accused-appellant Ram Pratap Singh and Anant Man Singh fired at his father with their respective weapons. In cross-examination Dharmendra Pratap Singh (P.W. 1) has given detailed description of place of occurrence. He has deposed that market i.e. place of occurrence where they had gone to purchase vegetable and grocery items, is situated only half kilometer away from his house. He has further stated that the shop wherefrom they were purchasing grocery item was owned by Salig Ram and at the time of incident items were not packed but were being weighed at that time. At that time there were 15-20 persons present at the shop. By giving detailed description of shop of Salig Ram he further has stated when fire was shot the faces of Salig Ram and his father (Bachan Singh) were towards north. He has again stated that one fire hit his father's head and another hit his right thigh. According to him the teharir (written report) was written at the place of occurrence at his dictation and thereafter he had gone with his father to the police station. He has further stated that 20-25 minutes would have been taken in preparation of written report and till then his father stayed at the place of occurrence and blood was oozing from his wound.

23. Similarly, Bachan Singh (P.W. 2) has also stated that at the time of occurrence i.e. about to 5:00 p.m. he was present in local market Jamrawa Bazar at the shop of Salig Ram with his sons Dharmendra Pratap Singh (P.W. 1) and Satyendra Singh. Narrating the occurrence in detail he has stated that meanwhile appellant- Anant Man Singh armed with tamancha, Shivram Singh armed with lathi, and accused-appellant Ram Pratap Singh armed with a single barrel licensed gun of Shivram Singh appeared there and on the exhortation of co-accused Shivram Singh, appellants Anant Man Singh and Ram Pratap Singh, with the intention to kill, had fired with their respective weapons at him. He received injuries on his head and right thigh.

24. These two witnesses were cross-examined at length but no question was put before them whereby it could be assumed that the place of occurrence would be other than the place of occurrence as alleged by the prosecution. In addition to it from perusal of statement of Bachan Singh (P.W. 2), it further transpires that he has admitted the previous enmity with one Bhanu Singh and one Laxmi. According to him further he was prosecuted for the murder of Rajau s/o Shivram Singh wherein he was exonerated from the charges leveled against him. Thus it might be possible that after his acquittal for the offence of murder of Rajau Singh, co-accused Shivram Singh who was the father of Rajau Singh would have been more inimical to Bachan Singh (P.W. 2). In addition to it further the offence was committed in summer season at 5:30 p.m. there was sufficient light to identify the real culprit. It cannot be expected to Bachan Singh (P.W. 2) and his son Dharmendra Pratap Singh (P.W. 1) to spare the real culprit and implicate accused-appellants falsely in such serious offence. In addition to above it is also transpired from perusal of material on record that no specific suggestion or question was put by the defence counsel to these two natural eye witnesses that the alleged occurrence would have been caused at different time and another specific place by some unknown persons. Thus in view of the above, the submission advanced by the learned counsel for the defence that the occurrence would have been taken at different time and place by unknown person and accused appellants have been roped in falsely in this case due to previous enmity, has no force.

25. So far as the submission of the learned counsel for the appellant that the alleged occurrence was happened in crowded place where no one except Bachan Singh (P.W. 2) received injury hence, prosecution story is doubtful, is concerned, from perusal of material on record it transpires that Dharmendra Pratap Singh (P.W. 1) has specifically stated in his cross-examination that both the accused-appellants had fired shot which hit only his father and no other person was injured. He was cross-examined in detail on the point of place of occurrence. Dharmendra Pratap Singh (P.W. 1) in his cross-examination has said that at the time of occurrence there were 15-20 persons standing at the grocery shop and many people were passing nearby the place of occurrence. Stating that at the time of occurrence his father was inside the grocery shop with Salig Ram, he has further stated that his father was sitting two-three hands (three-four feet) away, to the right side of Salig Ram and fire was shot at his father from the north side; about six steps away from the shop. Bachan Singh (P.W. 2) in his cross-examination, narrating the details of place of occurrence and his position at the time of occurrence, has stated as under:-

"Salig Ram Pandey's shop was 5-6 steps away in the south direction to the road of north side. This shop was 10-12 feet in expansion in north-south direction and might be around 12-13-15 feet in east-west direction also. There was thatch above the pole which was a bit suspended because of raining. People could have passed through all around the shop. There was no cot or bench in the shop, just a gunny bag was laying there."

26. He has further stated as under:-

"I was sitting towards south-west side in the shop, 6 steps away from the south side road. Salig Ram Pandey was present at the shop and was selling items facing to eastwards. There was no customer inside the shop under the thatch. Everybody was purchasing standing outside of thatch.

Salig Ram Pandey was sitting to my east; I was sitting west to him. The customers were standing only in the east and in no other direction. Salig Ram Pandey was sitting 3-4 steps away from the road inside his shop. My sons were standing on the road under the thatch, they were not inside the shop. I was facing north and was not facing to shopkeeper. I was the first to see the accused from the distance of 5-6 steps from the shop when they made commotion. That time I was sitting inside the shop. The fire was immediately ensued by the sound. I could not run away. I was shot at while I was sitting."

27. Thus from the statement of this witness, it transpires that no customer except injured Bachan Singh (P.W. 2) was inside the shop and Salig Ram could see the accused from a distance of 5-6 feet. It might be possible that when Salig Ram or other persons had seen the accused-appellants who were carrying deadly weapons, they would have disbursed themselves to avoid the incident and to save their lives. It is common practice/behaviour of the persons standing nearby the occurrence to run away from the place of occurrence in order to save their lives if they are not related to the victim side. It is also seen that some people even if they had received some minor injury do not come forward to show their injury due to fear of accused or to avoid to get involved themselves in criminal proceedings. In my view, merely on the ground that no other person had received injury in this occurrence and on that very account the prosecution case is doubtful, cannot be accepted in view of the facts and circumstances of this case and thus the submission of learned counsel for the appellant has no force.

28. Coming to the submission advanced by the learned counsel for the appellant that witnesses produced by the prosecution are related to each other, no independent witness was produced by the prosecution and hence the prosecution case is doubtful, is concerned, from perusal of F.I.R. (Ex.ka 1) it transpires that the said occurrence was witnessed by Dharmendra Pratap Singh (P.W. 1), Satyendra Singh, Salig Ram, Vijay Pal Singh and Man Singh in addition to Bachan Singh (P.W. 2). In this case the prosecution has not examined Salig Ram, Vijay Pal Singh, Satyendra Singh and Man Singh. Only Bachan Singh (P.W. 2) and his son Dharmendra Pratap Singh (P.W. 1) were examined. The witnesses mentioned in the F.I.R. (Ex. Ka 1) are the witnesses of same fact i.e. eye witness of the occurrence happened on 16.6.1996 at 5:30 p.m. for proving of which prosecution already has examined Dharmendra Pratap Singh (P.W. 1) and Bachan Singh (P.W. 2).

29. It is settled principle of criminal law that prosecution is not bound to examine a particular number of witnesses to prove a particular fact. Section 134 of the Indian Evidence Act, 1872 also provides as under:-

"134. Number of witnesses

No particular number of witnesses shall in any case be required for the proof of any fact."

30. Hon'ble Supreme Court in its landmark verdict has propounded a legal position in Vadivelu Thevar Vs. State of Madras, AIR 1957 SC 614 that it is established principle of criminal law that Court can and may act on the testimony of a single witness provided he/she is wholly reliable. There is no legal impediment or bar in convicting an accused on the sole testimony of single witness.

31. Discussing the point of neutral behaviour or general reluctance of young people got involve themselves as witnesses in criminal case, of a rival fraction of village, the Supreme Court in Appa Bhai and others Vs. State of Gujrat, AIR 1988 SC 696 has observed as under:-

"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused."

32. In view of the above settled principle of the law, in this case where the injured witness Bachan Singh (P.W. 2) and his son Dharmendra Pratap Singh (P.W. 1) were examined in support of prosecution case and they were cross-examined at length but nothing has come out from their cross-examination to create any doubt in the prosecution case regarding their presence on the spot, merely on account of non-production of independent witness prosecution case will not be affected. Hence the submission raised by learned for the appellants has no force.

33. So far as the submission of learned counsel for the appellants, that no attempt was made to save Bachan Singh (P.W. 2) or to counter attack on accused-appellants by Bachan Singh (P.W. 2) or by his sons is concerned, the record shows that accused appeared at the place of occurrence all of a sudden and fired shot at Bachan Singh (P.W. 2). Bachan Singh (P.W. 2) has stated in his cross-examination that there was no chance for him to run away from the place of occurrence as he was shot at while he was sitting. He has further stated that he had also a licensed gun with him at that time but as soon as he tried to take position, accused-appellants fled away towards west. In the F.I.R. it has been clearly mentioned that Bachan Singh (P.W. 2), at the time of occurrence, was carrying his licensed gun and accused-appellants just after causing incident, run away. There was crowd in the market, therefore, Bachan Singh (P.W. 2) in order to avoid any injury to innocent person, present in the market, could not fire at the accused-appellants in his defence. Dharmendra Pratap Singh (P.W. 1) and Bachan Singh (P.W. 2) have also categorically stated that at the time of occurrence there was licensed gun with Bachan Singh (P.W.2 ) but he could not fire at accused-appellants in order to avoid injury to innocent persons present in the crowd. The statement made by both the witnesses was not specifically challenged by the defence counsel in their cross-examination. Thus the prosecution has given reasonable and justifiable explanation for not counter attacking and the submission of learned counsel for the appellants has no force.

34. So far as the submission of learned counsel for the appellants that no pellet was found either from the place of occurrence or form the body of Bachan Singh (P.W. 2) and ocular evidence is not corroborated by the medical evidence is concerned, record shows that Bachan Singh (P.W. 2) was examined by Dr. P.S. Mishra (P.W. 5) who in his statement has stated that the injuries present on his body may be caused by gun and country made pistol on 16.6.1996 at 5:30 p.m. According to him on injury no. 4 which was present on the right thigh of Bachan Singh (P.W. 2) there were multiple fire arm entry wound in the area of 15cm X 8cm on which bleeding and tattooing were present. He referred the injured for X-ray examination of injury nos. 1, 2 & 3 which were present on his head to know its nature. Dr. K.P. Singh (P.W. 4) in his examination has stated that in X-ray examination he had seen three rounded opaque metallic shadow. According to Dharmendra Pratap Singh (P.W. 1) and Bachan Singh (P.W. 2) these injuries were caused by fire arm on 16.6.1996 at 5:30 p.m. Thus it is clear that some pellets were present in the area of injuries caused to Bachan Singh (P.W. 2). The evidence produced by the prosecution does not show whether the Investigating Officer S.I. Abdullah Khan (P.W. 6) had made any effort to collect or search the pellets out from the place of occurrence or not. He was also not cross-examined by the defence as to whether he had made any effort in this regard. It is settled principle of criminal law that such type of mistakes, committed by the Investigating Officer, is not fatal to the prosecution case.

35. It is also to be noted that Dharmendra Pratap Singh (P.W. 1) and Bachan Singh (P.W. 2) in their cross-examination have stated that fire was shot from the distance of 5-6 steps. According to Dr. P.S. Mishra (P.W. 5) blackening and tattooing was present on injury no. 4. He has further stated that injuries present on the body of Bachan Singh (P.W. 2) could have been cause by gun and tamancha (country made pistol). In cross-examination he has also stated that injury no. 4 could be caused from distance of 3 feet. He was not cross-examined by the defence counsel as to whether such injuries may be caused from the distance of 5-6 steps or not. This witness is not a ballistic expert. In this case the injuries present on the body of Bachan Singh (P.W. 2) have been caused by gun and tamancha (country made pistol). No cartridges were recovered by the Investigating Officer whereby it could be ascertained that cartridges used by accused-appellants in firing were factory made, local or duplicate. Hence it cannot be said that which type of gun powder or pellets were used in those cartridges. Nature of injuries also depends upon nature of cartridge and fire arm used in causing such injuries. In addition to it, it is settled principle of human behaviour as well as criminal law that no specific position or distance can be expected or ascertained when the firing was caused in such cases. In my opinion the probable difference between the statement of eyewitnesses and medical evidence on the point of distance of firing is not material in this case and thus the ocular evidence led by prosecution is fully supported and corroborated by the medical evidence and doubt raised by the learned counsel for the appellants in this regard has no substance.

36. So far as the submission of learned counsel for the appellants that in view of the nature of injury, only offence u/s 324 IPC could be proved and accused-appellants are entitled for the benefit u/s 4 of Probation of Offenders Act 1958 is concerned, from perusal of nature of injuries it is clear that injuries were caused by lethal weapons i.e. gun and country made pistol on the head and thigh of the injured Bachan Singh (P.W. 2). From the discussion of facts and circumstances of the case, it further transpires that the accused-appellants appeared at the place of occurrence only to kill Bachan Singh (P.W. 2). Only on the account that injuries were simple in nature, it cannot be said that offence u/s 307 is not made out.

37. The Supreme court in State of Madhya Pradesh Vs. Saleem @ Chamaru, 2005 law suit (SC) 939, (AIR 2005 SC 3996), while discussing the duty of Court to impose appropriate sentence as well as nature of injuries required for offence u/s 307 IPC has held as under:-

"10. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should ''''respond to the society's cry for justice against the criminal''.

11. It is to be noted that the alleged offences are of very serious nature. Section 307 relates to attempt to murder. It reads as follows:

''''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.''

12. To justify a conviction under this Section, 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 deduced from other circumstances, and may even, in some cases, beascertained 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 the 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.

13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.

14. This position was highlighted in State of Maharashtra v. Balram Bama Patil and Ors., [1983] 2 SCC 28, Girija Shanker v. State of Uttar Pradesh, [2004] 3 SCC 793 and R. Parkash v. State of Karnataka, JT (2004) 2 SC 348.

15. In Sarju Prasad v. State of Bihar, AIR (1965) SC 843 it was observed in para 6 that mere fact that the injury actually inflicted by the accused did not cut any vital organ of the victim, is not by itself sufficient to take the act out of the purview of Section 307.

16. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is intention or knowledge, as the case may be, and not nature of the injury. The basic differences between Sections 333 and 325 IPC are that Section 325 gets attracted where grievous hurt is caused whereas Section 333 gets attracted if such hurt is caused to a public servant.

38. Thus in view of the law laid down by the Supreme Court in above case law, it is clear that for the offence u/s 307 IPC the grievous injuries or injuries on vital part of the body are not necessary ingredient. Even in cases where simple injuries has been caused with intention to cause death of the victim, it will be sufficient for the offence of attempt to murder as defined u/s 307 IPC. It is also settled principle of criminal law that in awarding the sentence, undue sympathy with accused is not required. The object of sentencing in criminal law should be to protect the society and also to deter the criminals by awarding appropriate sentence.

39. Looking into the facts and circumstances of this case, I am of the view that it is not the case of Section 324 IPC. The prosecution has successfully proved the offence of 307 IPC read with 34 IPC, hence the submission of learned counsel for the appellants that the only offence u/s 324 is made out and accused-appellants are entitled to benefit of Probation of Offenders Act has no substance.

40. For the offence u/s 307 IPC i.e attempt to murder, accused may 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 accused shall be liable either to imprisonment for life or to such punishment as mentioned above. In this case the trial Court has convicted the accused-appellants only for the rigorous imprisonment of 7 years and fine of Rs. 2000/- and in case of default in payment of fine with additional period of simple imprisonment of one month.

41. In my view, looking into the gravity and nature of the offence, the punishment awarded by the trial Court is just and appropriate and requires no interference. Appeal is liable to be dismissed. Impugned judgment and order passed by the trial Court is liable to be affirmed.

42. In the light of above discussion the appeal is hereby dismissed. The impugned judgement and order dated 26.11.2002, passed by Addl. Sessions Judge, Court no. 2, Fatehpur, in Session Trial No. 569 of 1996 (State Vs. Shivram and others) is maintained and affirmed.

43. Accused-appellants are on bail, their personal bonds are cancelled and sureties stand discharged. They are directed to surrender before the C.J.M. concerned immediately to serve out the sentence awarded to them by the trial Court. In case they fail to surrender, as directed above, the C.J.M. concerned is directed to take coercive action against them in this regard, thereafter, compliance report be also communicated to this Court.

44. Let a copy of this judgement alongwith the lower court record be sent immediately to the Sessions Judge and the C.J.M. concerned for necessary compliance.

Order Date :- 05.03.2019

Vandana